McPhaul v. Board of Commissioners of Madison County

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1092

Cheryl K. McPhaul,

Plaintiff-Appellant,

v.

Board of Commissioners of Madison County,

Indiana, Arleen Horine, in her official and

individual capacity, and Madison County

Board of Health,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 97 C 97--Sarah Evans Barker, Chief Judge.

Argued February 18, 2000--Decided August 16, 2000

Before Bauer, Posner, and Manion, Circuit Judges.

Manion, Circuit Judge. Cheryl McPhaul sued her

former employer, the Madison County Board of

Commissioners, alleging that the County failed to

accommodate her disability in violation of the

Americans with Disabilities Act (ADA). She also

brought an individual capacity suit, under 42

U.S.C. sec. 1983, against her former supervisor,

Arleen Horine, alleging that Horine discriminated

against her because of her race, in violation of

the Equal Protection Clause of the Fourteenth

Amendment. The defendants moved for summary

judgment. The district court granted the motion,

concluding that McPhaul failed to establish a

prima facie case for her ADA and section 1983

claims. McPhaul appeals, and we affirm.

I.

Cheryl McPhaul is a black woman who worked as a

registered nurse for the Women, Infants and

Children (WIC) program in Madison County,

Indiana. WIC is a federally-funded program that

provides health care and nutrition assistance for

pregnant women, infants and children. McPhaul’s

supervisor was Arleen Horine, a registered nurse

who coordinates the WIC program in Madison

County.

McPhaul began working for WIC as a nurse

nutritionist in April of 1994, where her

responsibilities included counseling WIC clients

about nutrition and certifying them for program

benefits like food supplements. In May 1995,

Horine concluded that McPhaul’s performance as a

nutritionist was deficient because she was

writing the same information on the charts of WIC

clients regardless of their varying situations,

including the infants, a practice that Horine

described as "totally inappropriate." Thus,

Horine transferred McPhaul to the position of

intake clerk in May 1995. Intake clerks certify

clients for the WIC program in order to secure

federal funding. They record the heights and

weights of clients so that the nurse

nutritionists can properly advise clients about

their diets. As an intake clerk, McPhaul

continued to receive the same benefits and pay

that she received as a nutritionist.

In September 1995, McPhaul received her first

performance evaluation as an intake clerk, in

which Horine rated her performance "Below

Average," the second lowest rating on a scale of

five. Horine’s evaluation states that McPhaul was

having "great difficulty in doing her job," that

she was making "gross errors" in charting the

heights and weights of clients, and that she was

having trouble remembering shot schedules for

infants and children and how to certify clients.

Although McPhaul was retrained after her initial

evaluation, she fared no better on her second

evaluation in November 1995. According to

Horine’s notes, McPhaul’s performance was still

"Below Average" because she continued to make

"gross errors" in plotting the heights and

weights of clients, and was still unable to

understand the certification process. In January

1996, Horine completed McPhaul’s third (and last)

performance review, in which McPhaul received the

lowest possible rating of "Unsatisfactory."

Horine stated that McPhaul was making "numerous

errors" in the routine tasks of the job, and that

she was still failing to accurately record the

heights, weights, and even the ages of clients.

Horine recommended to the WIC administrator that

McPhaul should be discharged. The administrator

and the Health Officer approved Horine’s

recommendation, and McPhaul was terminated on

January 22, 1996.

After her termination, McPhaul sued the Board of

Commissioners, alleging that she was disabled and

that the Board failed to accommodate her

disability, in violation of the ADA. She also

sued Horine in her individual capacity, under

section 1983, alleging that Horine discriminated

against her because of her race, thus affecting

the terms and conditions of her employment.

McPhaul also claimed that Horine failed to

protect her from an alleged campaign of racial

harassment by her white co-worker, Marcia Shock.

Concerning her ADA action, McPhaul claims that

she had been suffering from fibromyalgia since

February 1995 (before Horine transferred her from

the nutritionist position to the intake clerk

position in May 1995). Fibromyalgia is a disease

that is similar to chronic fatigue syndrome; its

cause is unknown, there is no cure, and the

symptoms are entirely subjective and usually

involve chronic pain and fatigue. McPhaul’s

fibromyalgia symptoms included fatigue, insomnia,

shortness of breath and muscle pain, including

sore hands and joints. She claims that her

condition made it difficult for her to

concentrate, bathe, walk, write and work, and

that in September 1995 she requested Horine to

accommodate her alleged disability by allowing

her to arrive at work one hour later or to leave

one hour earlier, or both. According to McPhaul,

her request was denied. Horine claims that

McPhaul never made the request.

On January 11, 1996, McPhaul saw Dr. Van Dellen

at the Mayo Clinic. He concluded that it was

"possible" that McPhaul had fibromyalgia, and he

gave her a card that instructed her to

participate in an education program about the

disease. McPhaul allegedly presented the card to

Horine, but Horine asserts that she was never

informed of McPhaul’s disease. McPhaul was not

diagnosed with fibromyalgia until February 1,

1996, several days after she was terminated.

McPhaul’s disparate treatment claim under

section 1983 is based on several allegations that

Horine discriminated against her because of her

race by demoting her to the intake clerk

position, terminating her from that position, and

by treating her differently in regards to other

terms and conditions of her employment. Horine

disputes these allegations.

In support of her hostile environment claim

under section 1983, McPhaul alleges that she was

harassed by Shock’s discussion of racially

sensitive subjects and her repeated use of the

word "nigger" in McPhaul’s presence. McPhaul also

alleges that Horine knew about and tolerated

Shock’s conduct, and is thus liable in her

individual capacity. Horine disputes these

allegations as well.

The defendants moved for summary judgment,

arguing that McPhaul failed to establish a prima

facie case to support her claim under the ADA, or

to support her disparate treatment and hostile

environment claims under section 1983. The

district court granted the motion, concluding

that McPhaul’s ADA claim failed because she did

not present sufficient evidence that she was

disabled; that her disparate treatment claim

failed because she presented no evidence that

Horine was motivated by discriminatory intent;

and that her hostile environment claim failed

because she produced no evidence that her work

environment was objectively hostile, or that

Horine knew or consented to Shock’s conduct.

"We review the district court’s entry of summary

judgment de novo," Miller v. American Family Mut.

Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000), and

we will view all of the facts and draw all

reasonable inferences in favor of the nonmoving

party. See id. Summary judgment is proper if the

evidence shows that "there is no genuine issue as

to any material fact and that the moving party is

entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c). McPhaul cannot merely allege

the existence of a factual dispute to defeat

summary judgment. Skorup v. Modern Door Corp.,

153 F.3d 512, 514 (7th Cir. 1998). She must

supply evidence sufficient to allow a jury to

render a verdict in her favor. Ross v. Indiana

State Teacher’s Association, 159 F.3d 1001, 1012

(7th Cir. 1998).

II.

A. The ADA Claim

McPhaul’s first argument on appeal is that the

district court erred in concluding that her

reasonable accommodation claim fails because she

was not disabled under the ADA. The ADA

proscribes discrimination "against a qualified

individual with a disability because of the

disability of such individual in regard to job

application procedures, the hiring, advancement,

or discharge of employees, . . . and other terms,

conditions and privileges of employment." 42

U.S.C. sec. 12112(a). The Act also provides that

an employer discriminates against a qualified

individual with a disability by "not making

reasonable accommodations to the known physical

or mental limitations of an otherwise qualified

individual with a disability . . . ." 42 U.S.C.

sec. 12112(b)(5)(A). To establish a prima facie

case for failure to accommodate under the ADA,

McPhaul must show that: (1) she was disabled; (2)

the Board was aware of her disability; and (3)

she was a qualified individual who, with or

without reasonable accommodation, could perform

the essential functions of the employment

position. Feldman v. American Memorial Life Ins.

Co., 196 F.3d 783, 789 (7th Cir. 1999). Although

the district court held that McPhaul failed to

establish that she was disabled, we reserve

opinion on that determination because we find it

dispositive that McPhaul has failed to present

sufficient evidence to show that she was a

"qualified individual" under the ADA. See id.

A "qualified individual with a disability" is

"an individual with a disability who, with or

without reasonable accommodation, can perform the

essential functions of the employment position

that such individual holds or desires." 42 U.S.C.

sec. 12111(8). McPhaul has the burden of proof on

this issue, as she must show that she could

perform the essential functions of the

nutritionist and intake clerk jobs either with or

without a reasonable accommodation. Bultemeyer v.

Fort Wayne Community Schools, 100 F.3d 1281, 1284

(7th Cir. 1996); 29 C.F.R. sec. 1630.2(m).

The evidence clearly demonstrates that McPhaul

was not able to perform the essential functions

of the nutritionist and intake clerk positions.

Horine concluded that McPhaul’s performance as a

nutritionist was deficient because she was

recording the same information on the charts of

all of her patients, regardless of the various

facts each presented, including the infants. For

obvious reasons, Horine described this practice

as "totally inappropriate." McPhaul does not

dispute Horine’s conclusion. Moreover, McPhaul

does not dispute Horine’s three evaluations that

thoroughly documented McPhaul’s performance

deficiencies as an intake clerk./1 And McPhaul

presents no medical evidence to show that her

performance deficiencies at either job were due

to her alleged disability of fibromyalgia.

McPhaul responds by claiming that she would have

been able to perform the essential functions of

the nutritionist and intake clerk jobs if Horine

accommodated her request to arrive at work one

hour later, or to leave one hour earlier. Aside

from the fact that Horine claims that McPhaul

never requested reduced hours, McPhaul provides

no medical evidence to support her claim that her

requested accommodation would have improved her

performance, as none of her physicians ever

recommended any work restrictions or

accommodations due to her condition./2 All that

McPhaul can present in support of her reasonable

accommodation claim is her own self-serving

testimony, and in this case, that is just not

sufficient for a reasonable jury to find that she

is a qualified individual with a disability under

the ADA. See Slowiak v. Land O’Lakes, Inc., 987

F.2d 1293, 1295 ("Self-serving affidavits without

factual support in the record will not defeat a

motion for summary judgment."). Therefore,

McPhaul’s ADA claim fails.

B. The Section 1983 Claims

McPhaul also argues that Horine is personally

liable for discriminating against her because of

her race, in violation of the Equal Protection

Clause of the Fourteenth Amendment and 42 U.S.C.

sec. 1983. According to McPhaul, Horine treated

her differently regarding the terms and

conditions of her employment, and failed to act

to stop Shock’s alleged campaign of racial

harassment.

To state a prima facie case under the Equal

Protection Clause of the Fourteenth Amendment, a

plaintiff must demonstrate that she: (1) is a

member of a protected class; (2) is otherwise

similarly situated to members of the unprotected

class; (3) suffered an adverse employment action;

(4) was treated differently from members of the

unprotected class; and (5) the defendant acted

with discriminatory intent. Greer v. Amesqua, 212

F.3d 358, 370 (7th Cir. 2000); Jackson v. City of

Columbus, 194 F.3d 737, 751-52 (6th Cir. 1999).

Regarding the fifth element, McPhaul must show

that Horine "acted [or failed to act] with a

nefarious discriminatory purpose," and

discriminated against McPhaul because of her

membership in a definable class (because she is

black). Nabozny v. Podlesny, 92 F.3d 446, 453

(7th Cir. 1996) (internal citations omitted).

1. Disparate treatment.

McPhaul first contends that Horine discriminated

against her because of her race by treating her

differently in regards to the terms and

conditions of her employment by: (1) transferring

her to the intake clerk position; (2) terminating

her from that position; (3) neglecting to train

her for the intake clerk position while Shock, a

white intake clerk, received more sufficient

training; (4) denying her request to work reduced

hours while granting Shock’s request for the same

accommodation; (5) requiring her to see more

clients than Shock; and (6) prohibiting her from

wearing a nurse’s uniform while allowing Shock to

wear one.

McPhaul’s claims regarding her transfer and

termination clearly fail because she does not

establish the second and fifth elements of a

prima facie case. She does not establish the

second element--that she was otherwise similarly

situated to other nutritionists or intake clerks

who are members of an unprotected class--because

she does not identify any co-worker with a

similar "Below Average" or "Unsatisfactory"

performance rating./3 See O’Connor v. Chicago

Transit Authority, 985 F.2d 1362, 1371 (7th Cir.

1993) ("To make a prima facie case, O’Connor

would have to show that another grossly

insubordinate worker was treated better than

him.") (citation omitted). And because McPhaul

presents no evidence to indicate that Horine’s

transfer and termination decisions were motivated

by any reason other than McPhaul’s performance

deficiencies (which are undisputed), she clearly

fails to show that Horine’s decisions were

motivated by racial animus. Nabozny, 92 F.3d at

453.

On her claim about inadequate training, McPhaul

essentially argues that Horine set her up for

failure by neglecting to prepare her for the

intake clerk position while Horine ensured that

Shock was well prepared before she started the

job. Horine disputes McPhaul’s claim, and the

record contains no evidence that Shock received

better (or more timely) preparation for the

position. See Slowiak, 987 F.2d at 1295.

Moreover, McPhaul does not dispute Horine’s notes

that McPhaul was "retrained fully for the job"

after her first evaluation, but her performance

still deteriorated to the "Unsatisfactory" level.

Because the record discredits McPhaul’s argument,

and she presents no evidence that Horine acted

with racial animus, this claim fails.

McPhaul’s next contention is that Horine

discriminated against her when she allegedly

denied her request to work a reduced schedule,

but granted Shock’s request for the same

accommodation. According to McPhaul, Horine’s

reason for denying her request was that she

already reduced hours for Shock and could not

grant the same favor to McPhaul./4 But McPhaul’s

actual testimony was that Shock’s time away from

work "varied," and not that she was regularly

allowed to work a reduced schedule, which

corroborates Horine’s testimony that Shock never

requested a reduced schedule, but occasionally

took sick leave and vacation days. McPhaul

presents no evidence to dispute that Shock used

her accrued sick or vacation time when Horine

allowed her to take a portion of a day off. And

the record demonstrates that by January 1996,

McPhaul had used all of her vacation and sick

time. Nevertheless, Horine’s decision to allow

Shock to take accrued leave, and not to allow

McPhaul to take leave that had not been accrued,

does not evince that Horine was motivated by a

"nefarious discriminatory purpose," and this

claim fails./5

McPhaul also contends that Horine required her

to see more WIC clients than Shock on a daily

basis. In support of her contention, McPhaul

relies solely on her own observations through a

window to Shock’s office, and fails to challenge

the scheduling book in the record that

demonstrates that the WIC receptionist

distributed WIC clients equally to McPhaul and

Shock. Thus, McPhaul provides no evidence that

Horine intentionally assigned more clients to

McPhaul, or did so because of her race.

McPhaul’s last claimed instance of disparate

treatment is that Horine prohibited her from

wearing a nursing uniform while she allowed Shock

to wear one. According to McPhaul, Horine told

her not to wear a uniform because WIC clients

feel more comfortable when WIC staff are dressed

in casual clothes. McPhaul does not indicate that

she requested to wear a uniform, or that she was

ever punished for wearing a uniform, or that she

ever asked why Shock was apparently allowed to

wear a uniform. The uniform was not a factor in

her transfer or her termination, and there is no

evidence that the uniform was an important issue

at WIC. McPhaul just does not show that Horine’s

policy on uniforms was an adverse employment

action. See Southard v. Texas Bd. of Criminal

Justice, 114 F.3d 539, 555 (5th Cir. 1997) ("Not

every negative employment decision or event is an

adverse employment action that can give rise to a

discrimination or retaliation cause of action

under section 1983."); see also Silk v. City of

Chicago, 194 F.3d 788, 800 (7th Cir. 1999).

McPhaul also provides no evidence that Horine’s

policy was motivated by racial animus.

We conclude that McPhaul’s claimed instances of

discrimination (considered individually and

collectively) do not constitute sufficient

evidence for a reasonable jury to conclude that

Horine discriminated against her because of her

race. Thus, McPhaul’s disparate treatment claim

fails.

2. Hostile environment.

McPhaul also contends that Horine is personally

liable for failing to act to stop Shock’s alleged

campaign of racial harassment. McPhaul does not

allege any harassment by Horine, but that Shock,

her co-worker, harassed her by making racially

sensitive and derogatory remarks in her presence

while Horine failed to intervene to rectify the

situation.

To establish an individual capacity claim under

section 1983 against a supervisory official,

there must be a showing that the official was

directly responsible for the improper conduct,

Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th

Cir. 1983), and "knowingly, willfully, or at

least recklessly caused the alleged deprivation

by [her] action or failure to act." Rascon v.

Hardiman, 803 F.2d 269, 274 (7th Cir. 1986).

However:

[A] defendant’s direct participation in the

deprivation is not required. An official

satisfies the personal responsibility requirement

of section 1983 if she acts or fails to act with

a deliberate or reckless disregard of plaintiff’s

constitutional rights, or if the conduct causing

the constitutional deprivation occurs at her

direction or with her knowledge and consent.

Id. (quoting Smith v. Rowe, 761 F.2d 360, 369

(7th Cir. 1985)). The plaintiff must also show

that the supervisor acted (or failed to act)

because of the plaintiff’s race. See Nabozny, 92

F.3d at 453.

To prevail on a hostile environment racial

harassment claim, the plaintiff must also show

that her work environment was both subjectively

and objectively hostile./6 See Adusumilli v.

City of Chicago, 164 F.3d 353, 361 (7th Cir.

1998) (citing Harris v. Forklift Systems, 510

U.S. 17, 21 (1993)).

An objectively hostile environment is one that a

reasonable person would find hostile or abusive.

[Harris, 510 U.S. at 21]. In determining whether

a plaintiff has met this standard, courts must

consider all the circumstances, including "the

frequency of the discriminatory conduct; its

severity; whether it was physically threatening

or humiliating; or a mere offensive utterance;

and whether it unreasonably interferes with an

employee’s work performance." [Id. at 23].

Adusumilli, 164 F.3d at 361. We shall evaluate

McPhaul’s claims according to these standards.

McPhaul alleges that Shock harassed her by

discussing racially sensitive subjects and by

repeatedly using the racial epithet "nigger" in

McPhaul’s presence. Although McPhaul alleges that

Shock’s comments occurred on a weekly basis, she

presents three specific instances on appeal. In

the first instance, Shock repeated to McPhaul a

comment (made to Shock by a WIC client) that

Horine looked like "a little nigger lady." The

second instance involved Shock calling McPhaul’s

attention to the fact that a client was a dark-

skinned mother who had a lighter-skinned baby.

And lastly, Shock told McPhaul that Shock’s

family was once harassed by the Ku Klux Klan.

According to McPhaul, she complained to Horine

about Shock’s derogatory and racially insensitive

remarks, and that Horine advised her to "ignore

it." But McPhaul also admitted that Horine later

separated her from Shock by moving her to her own

office. Horine testified that McPhaul never

complained to her about Shock’s alleged

harassment, and that she never witnessed Shock

using the word "nigger."

We first consider whether Shock’s remarks

created an objectively hostile environment for

McPhaul. Shock allegedly used the word "nigger"

when she repeated a comment made by a WIC client

about Horine,/7 and thus Shock did not direct

that epithet at McPhaul or anyone else. When such

harassment is directed at someone other than the

plaintiff, the "impact of [such] ’second hand

harassment’ is obviously not as great as the

impact of harassment directed at the plaintiff."

Gleason v. Mesirow Financial, Inc., 118 F.3d

1134, 1144 (7th Cir. 1997). Although McPhaul also

alleges that Shock used the word "nigger" on a

weekly basis, she never claims that Shock

directed it at McPhaul or anyone else, which

indicates that Shock tended to repeat the epithet

out of her own immaturity and insensitivity,

rather than racial animus. Moreover, McPhaul

stated twice in her deposition that she

considered Shock’s remarks (especially her use of

the word "nigger") to be "offensive," but she

never claimed that they interfered with her work

performance, or were physically threatening or

humiliating. Thus, the "mere utterance of an . .

. epithet which engenders offensive feelings in

an employee" is not sufficient to establish a

hostile working environment. Harris, 510 U.S. at

21 (quoting Meritor Savings Bank, FSB v. Vinson,

477 U.S. 57, 67 (1985)).

Shock’s comment about the child’s skin color was

understandably offensive to McPhaul, but it was

not about McPhaul, and merely demonstrates

Shock’s ignorance of the probable consequences of

her careless chatter rather than racial

hostility. And Shock’s claim that the Ku Klux

Klan once harassed her family does not implicate

any hostile intent. We conclude, therefore, that

McPhaul fails to present sufficient evidence to

support a reasonable inference that Shock’s

remarks created an objectively hostile working

environment. See Adusumilli, 164 F.3d at 361.

Moreover, there is insufficient evidence to

indicate that Horine deliberately or recklessly

intended or allowed Shock’s alleged conduct, or

that Horine failed to act because she was

motivated by racial animus against McPhaul. The

record does not indicate that Horine intended or

directed any of Shock’s comments, as they appear

to have involved Shock’s spontaneous (and

inconsiderate) reactions to what she had observed

or heard. And McPhaul admits that Shock’s

comments decreased after Horine gave McPhaul her

own office. Therefore, McPhaul presents

insufficient evidence to indicate that Horine was

responsible for Shock’s alleged campaign of

harassment, and the hostile environment claim

fails./8

We conclude that McPhaul has failed to establish

a prima facie case under the ADA because she is

not a qualified individual with a disability. She

has also failed to establish a prima facie case

under section 1983 because she has not made a

sufficient showing that Horine discriminated

against her because of her race. Accordingly, We

AFFIRM the district court.

/1 While McPhaul does not dispute her performance

evaluations directly, she does claim that Horine

failed to sufficiently train her for the intake

clerk position, and required her to see more

clients than other intake clerks. But as we

explain in our analysis of McPhaul’s disparate

treatment claim, she fails to present any

evidence to support these allegations, and the

record actually discredits them.

/2 The record does contain, however, a January 17,

1996 note from Dr. Van Dellen of the Mayo Clinic

that simply states that McPhaul "could return to

work January 15, 1996." There is no indication of

any work restrictions or of any need for a work

accommodation.

/3 McPhaul only identifies Marcia Shock, a white

intake clerk, as a member of an unprotected class

who was allegedly treated more favorably by

Horine. But Shock was not similarly situated to

McPhaul because Horine rated Shock’s performance

as "Average," which is a superior rating to

McPhaul’s "Below Average" and "Unsatisfactory"

ratings. McPhaul does not challenge Horine’s

performance evaluations. Also, at the time of her

discharge, McPhaul was paid over $14.00 per hour

while Shock was paid $11.00 per hour.

/4 Horine claims that neither McPhaul nor Shock made

such a request, and thus no such accommodation

was granted at all. We note that even if Horine

did grant Shock’s request on a first come, first

served basis, that would be a legitimate business

decision that is beyond our purview. See McCoy v.

WGN Continental Broadcasting Co., 957 F.2d 368,

373 (7th Cir. 1992) (this court does not sit as a

super personnel department to review an

employer’s business decisions).

/5 And we have already established that McPhaul

provided no medical evidence to support her

request for a reduced schedule, and thus Horine

had no compelling reason to grant it.

/6 Because section 1983 claims generally follow "the

contours of Title VII claims," we will apply the

same "hostile environment" standard that is

applied in Title VII cases. King v. Board of

Regents of University of Wisconsin System, 898

F.2d 533, 537 (7th Cir. 1990).

/7 Horine is white.

/8 McPhaul also argues that we must consider

Horine’s alleged failure to protect her from

Shock’s offensive remarks as further evidence of

McPhaul’s disparate treatment claim. Because we

conclude that no reasonable jury could find that

Shock’s remarks created an objectively hostile

environment, or that Horine was somehow motivated

by racial animus to endorse them, our

consideration of these allegations (individually,

and collectively with the other six alleged

instances of disparate treatment) does not change

our conclusion that McPhaul’s disparate treatment

claim fails.