Petition for Writ of Certiorari — Fikreta Cenanovic, Petitioner v. Hamdard Center for Health and Human Services

Case: 24-1743

Document: 23

Filed: 12/19/2024

Pages: 1

United States (ttourt of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

December 19, 2024

Before

FRANK H. EASTERBROOK, Circuit Judge

THOMAS L. KIRSCHII, Circuit Judge

JOHN Z. LEE, Circuit Judge

No. 24-1743

FIKRETA CENANOVIC,

Plaintiff-Appellant,

v.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

HAMDARD CENTER FOR HEALTH

AND HUMAN SERVICES,

Defendant-Appellee.

No. l:20-cv-07612

Edmond E. Chang,

Judge.

ORDER

On consideration of the petition for rehearing and petition for rehearing en banc,

no judge in regular active service has requested a vote on the petition for rehearing en

banc and the judges on the original panel have voted to deny rehearing. It is, therefore,

ORDERED that the petition for rehearing and petition for rehearing en banc is

DENIED.

RECEIVED

MAR 2 5 2025

Case: 24-1743

Document: 24

Filed: 12/27/2024

Pages: 1

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirkscn

United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Qerk

Phone; (312) 435-5850

www.ca7.uscourts.gov

NOTICE OF ISSUANCE OF MANDATE

December 27, 2024

To: Thomas G. Bruton

UNITED STATES DISTRICT COURT

Northern District of Illinois

Chicago, IL 60604

FIKRETA CENANOVIC,

Plaintiff - Appellant

No. 24-1743

v.

HAMDARD CENTER FOR HEALTH AND HUMAN SERVICES,

Defendant - Appellee

Originating Case Information:

District Court No: l:20-cv-07612

Northern District of Illinois, Eastern Division

District Judge Edmond E. Chang

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A

certified copy of the opinion/order of the court and judgment, if any, and any direction as to

costs shall constitute the mandate.

RECORD ON APPEAL STATUS:

No record to be returned

H

form name: c7_Mandate

(form ID: 135)

j

APPENDIX A

United States Court of Appeals for the Seventh Circuit

Case No. 24-1743

Decided November 20, 2024

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NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

llntteb States Court nf Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 20, 2024*

Decided November 20, 2024

CERTIFIED COPY

Before

FRANK H. EASTERBROOK, Circuit Judge

THOMAS L. KIRSCHII, Circuit Judge

of

dCourt>

Seven th*Circultr

4Q/

JOHN Z. LEE, Circuit Judge

No. 24-1743

FIKRETA CENANOVIC,

Plaintiff-Appellant,

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

v.

No. 1:20-CV-07612

HAMDARD CENTER FOR HEALTH

AND HUMAN SERVICES,

Defendant-Appellee.

Edmond E. Chang,

Judge.

ORDER

Fikreta Cenanovic injured her neck and back after falling at work. She was

unable to return to work for several months, and during that time her role was

eliminated due to restructuring. Her employer, Hamdard Center for Health and Human

Services, did not offer her an alternative position and terminated her employment.

* We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. Fed. R. App. P. 34(a)(2)(C).

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Cenanovic filed suit under the Americans with Disabilities Act (ADA), 42 U.S.C.

§§ 12101-12213, and Illinois law, alleging that Hamdard discriminated against her

based on her disability and retaliated against her for claiming workers' compensation

benefits. The district court granted Hamdard's motion for summary judgment. Because

Cenanovic cannot show she is a qualified individual under the ADA or that Hamdard

retaliated against her for claiming benefits, we affirm.

We recount the facts and draw all reasonable inferences in favor of Cenanovic,

the non-moving party. Mahran v. Advocate Christ Med. Ctr., 12 F.4th 708, 712 (7th Cir.

2021). Cenanovic began working for Hamdard in July 2009. Hamdard provides

healthcare and support services to diverse communities in Chicago, and Cenanovic was

hired as a case manager to develop individualized case plans, coordinate support

services, and translate for Hamdard's Bosnian clients. For nine years, Cenanovic was a

diligent and responsible employee.

On Friday, August 17, 2018, Cenanovic slipped and fell on a wet floor in

Hamdard's basement resulting in injuries, including neck pain, back pain, headaches,

numbness and tingling in her extremities. Because of her injuries, Cenanovic did not

return to work the following Monday.

A few days later, she submitted the first of what would be a series of doctor's

notes excusing her from work. On August 28, she filed a workers' compensation claim

and began leave under the Family and Medical Leave Act (FMLA). Then, on September

4, Cenanovic submitted a second doctor's note requesting that she be excused from

work through October 6. Her supervisors at Hamdard responded a week later through

their workers' compensation insurers, Travelers Insurance. Travelers faxed a modified

work form to Cenanovic's attorney, Jennifer Robinson. The form detailed work that

Hamdard considered "light duty," but Cenanovic's physicians never signed the form or

otherwise detailed conditions under which Cenanovic could return to work.

On October 1, a supervisor from Hamdard left a voicemail for Cenanovic asking

if she would return to work the following week as scheduled. Cenanovic responded

with a third doctor's note asking that she be excused from work for an additional

month—through November 7. In an email to Cenanovic on October 19, Hamdard

supervisors acknowledged receipt of the third doctor's note, noted that "light duty

work has been offered to [her]," and informed Cenanovic that her FMLA leave would

expire on November 12. That same day, the supervisors at Hamdard emailed

Cenanovic's case manager at Travelers Insurance to say that if Cenanovic were to

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No. 24-1743

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submit a fourth doctor's note excusing her beyond the expiration of her protected leave,

her "position will be filled."

But on November 8, Cenanovic did submit a fourth doctor's note excusing her

from work through December 12, and she did not return to work when her FMLA leave

expired on November 12. On November 14, a supervisor from Hamdard reached out to

Travelers Insurance and asked if Cenanovic communicated any plans to return to work,

but the case manager had not heard anything. On November 27, Cenanovic submitted a

fifth doctor's note excusing her from work for an additional four weeks and explaining

that Cenanovic's work status would be discussed when the four weeks were up.

Three days later, on November 30, Hamdard informed Cenanovic that it was

ending her employment because it was eliminating the case-manager position under a

new organizational structure. Before receiving her termination letter, Cenanovic had

not been told that a reorganization would affect her position. While Hamdard trained

other employees who held Cenanovic's same position for new roles under the

restructuring plan, Cenanovic had not been at work and had not been cleared by her

doctor to complete the required training for such a transition. (Hamdard admits that, if

Cenanovic had been at work, she could have completed the training and transitioned.)

Six months after Cenanovic was fired, in May 2019, her physician cleared her to return

to work.

Cenanovic filed this suit in December 2020 after receiving a right-to-sue letter

from the Equal Employment Opportunity Commission. Cenanovic alleged that

Hamdard violated the ADA by failing to accommodate her disability and subjecting her

to disparate treatment because of it. She also brought a claim under Illinois common

law alleging that Hamdard fired her in retaliation for accessing her workers'

compensation benefits. See Kelsay v. Motorola, Inc., 384 N.E.2d 353, 357 (Ill. 1978).

The defendants moved for summary judgment, arguing that Cenanovic was not

a qualified individual under the ADA because her repeated requests for leave

demonstrated that she was not able to work at all. Moreover, Hamdard argued that it

did not terminate Cenanovic because she claimed workers' compensation benefits.

Rather, she was fired because her position was eliminated during the restructuring and

Cenanovic was unable to return to work to train for a new position. Cenanovic

responded that Hamdard failed to participate in an interactive process that would have

generated a reasonable accommodation enabling her to work, violated her rights under

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the ADA by failing to offer her a new position after the restructuring, and provided a

pretextual reason for firing her.

The district court entered summary judgment for Hamdard, concluding that

Cenanovic's prolonged leave from work meant that no reasonable jury could find that

she was a qualified individual under the ADA. The court then exercised its discretion to

retain jurisdiction over the state-law retaliation claim, Timm v. Mead Corp., 32 F.3d 273,

276-77 (7th Cir. 1994), and determined that Cenanovic could not show that Hamdard

had retaliated against her.

Cenanovic appeals. We review the summary judgment decision de novo. Stelter

v. Wis. Physicians Serv. Ins. Corp., 950 F.3d 488, 490 (7th Cir. 2020).

Cenanovic argues that the district court erred when it concluded that she was not

a "qualified individual" under the ADA. To establish that she is a "qualified

individual," Cenanovic must show that she has the requisite skills and experience and

that she is able to perform the essential functions of the job with or without

accommodation. 42 U.S.C. § 12111(8); Nowak v. St. Rita High Sch., 142 F.3d 999,1002-03

(7th Cir. 1998). Cenanovic argues that she had the requisite skills and training for a new

position under Hamdard's restructuring plan. Further, she maintains that despite her

injuries, there were functions of her job, such as translation, that she "was and is" able

to perform. She faults Hamdard for failing to engage in an interactive process that

would have identified a reasonable accommodation that allowed her to maintain her

employment.

We see no error. First, Hamdard did engage in the interactive process by faxing

Cenanovic's lawyer a modified work form, which solicited Cenanovic's suggestions for

a reasonable accommodation. See Mays v. Principi, 301 F.3d 866, 870 (7th Cir. 2002),

abrogated on other grounds by E.E.O.C. v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012).

Cenanovic argues that this was not an actual offer for modified duty because it was not

accompanied by a physician's opinion detailing the work Cenanovic could perform. But

it was Cenanovic's doctors who failed to sign off on the form or otherwise respond,

making her responsible for the breakdown in the interactive process. See Beck v. Univ. of

Wis. Bd. of Regents, 75 F.3d 1130,1135 (7th Cir. 1996). Cenanovic insists that she had no

knowledge of the form, but this contention is unavailing. She does not dispute that her

attorney received the form and, at any rate, Cenanovic was notified of the form by an

email from her supervisor at Hamdard.

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Even if Hamdard had not attempted to engage Cenanovic at all, a failure to

engage in the interactive process alone is not a basis for liability. McAllister v. Innovation

Ventures, LLC, 983 F.3d 963, 972 (7th Cir. 2020). It is actionable only if it prevents the

identification of an appropriate accommodation for a qualified individual. Id. Being a

qualified individual is an element of both a failure-to-accommodate and disparatetreatment claim under the ADA. Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019,1022

(7th Cir. 1997). Before Cenanovic was fired, her doctor repeatedly excused her from all

work for a period exceeding four months. By the time her doctor mentioned that

Cenanovic could, after another month of leave, engage in conversations about a

potential (not promised) return, Cenanovic's FMLA leave had expired. And Cenanovic

was not cleared to perform even sedentary work for several months after that note was

submitted. An individual who requires a long-term leave of absence like the one here is

not a qualified individual under the ADA. See Severson v. Heartland Woodcraft, Inc.,

872 F.3d 476, 481 (7th Cir. 2017); Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir.

2003). Although Cenanovic had the requisite skills to be trained for a new position at

Hamdard, her inability to work for a prolonged period removed her from the class of

"qualified individuals" protected by the ADA. McAllister, 983 F.3d at 971.

Cenanovic next argues that the district court erred in entering summary

judgment on her claim under Illinois law that Hamdard retaliated against her for filing

a workers' compensation claim. We disagree.

Under Illinois law, to prevail on a claim of retaliatory-discharge, Cenanovic

would need to present some affirmative evidence from which a reasonable jury could

conclude that that her filing of a workers' compensation claim was the cause of her

termination from Hamdard. Hillmann v. City of Chicago, 834 F.3d 787, 794 (7th Cir. 2016);

see also Gacek v. Am. Airlines, Inc., 614 F.3d 298, 303 (7th Cir. 2010). Illinois has rejected

the use of the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-03 (1973), for evaluating claims of retaliatory discharge. Gacek, 614 F.3d at 300;

see also Clemons v. Mech. Devices Co., 704 N.E.2d 403, 407-08 (Ill. 1998). Indeed, without

some evidence that her termination was motivated by the filing of her workers'

compensation claim, Cenanovic's claim cannot survive summary judgment. See Reid v.

Neighborhood Assistance Corp. of Am., 749 F.3d 581, 587 (7th Cir. 2014). Moreover, the

causation element is not met where the employer offers a valid, nonpretextual reason

for the termination. Clemons, 704 N.E.2d at 406.

Here, Cenanovic provided no evidence from which a reasonable jury could

conclude that Hamdard fired her because she filed a workers' compensation claim.

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Cenanovic filed her claim three months before she was terminated. In the intervening

months, Cenanovic could not perform any work. And Hamdard offered a valid,

nonpretextual reason for firing Cenanovic—it eliminated all case-manager positions at

the company, including the position Cenanovic held. Although Hamdard trained other

case managers to take on new roles within the company, Cenanovic's absence from

work prevented her participating in any training. Hamdard's reasons for firing

Cenanovic have not shifted. Under these circumstances, an inference of retaliatory

intent is not reasonable.

AFFIRMED

APPENDIX B

United States District Court for the Northern District of

Illinois, Eastern Division.

Case No. 1:20-CV-07612

Decided March 28, 2024

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United States District Court

for the Northern District of Illinois

Eastern Division

FIKRETA CENANOVIC,

Plaintiff,

v.

HAMDARD CENTER FOR HEALTH

AND HUMAN SERVICES,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

No. 1:20-CV-07612

Judge Edmond E. Chang

Memorandum Opinion and Order

Fikreta Cenanovic filed this lawsuit alleging that her former employer,

Hamdard Center for Health and Human Services, committed unlawful disability dis­

crimination when it terminated her employment. R. 1, Compl. at l.1 Cenanovic was

a case manager for Hamdard for many years but was dismissed from the job after

suffering a slip and fall at work that precipitated various health challenges. Compl.

ft 17-31. Hamdard now moves for summary judgment. R. 45, Def.’s Mot. Summ. J.

For the reasons detailed in this Opinion, Hamdard’s motion is granted because no

reasonable jury could find that Cenanovic is a qualified individual under the Ameri­

cans with Disabilities Act, 42 U.S.C. § 12112(a).2

1 Citations to the record are “R.” followed by the docket entry number and, if needed,

a page or paragraph number.

2 The Court has subject matter jurisdiction over this case under federal-question ju­

risdiction. 28 U.S.C. § 1331. The Court has supplemental jurisdiction over the common law

claim for retaliatory discharge in this case under 28 U.S.C. § 1367, because it arises from the

same case or controversy as the federal claims.

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I. Background

In deciding Hamdard’s summary judgment motion, the Court views the evi­

dence in the light most favorable to the non-moving party. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The facts below are undisputed

unless otherwise noted.3

Hamdard is a non-profit community health center that provides healthcare

and support services in the Chicago area. R. 45-2, Def.’s Statement of Material Facts

(DSOF) If 1; R. 45-3, Exh. 6, Bailey Aff. If 4. Fikreta Cenanovic worked as a full-time

case manager at Hamdard from July 1, 2009, through November 30, 2018. DSOF f 2;

Compl. If 11 7—9. Her “at-will” employment required that she sign, on multiple occa­

sions, a receipt acknowledging that she had read Hamdard’s Employee Manual.

DSOF Iff 6-9; R. 45-3, Exh. 4(a)-(b); R. 53, Pl.’s Resp. DSOF f f 6-9. In August 2018,

Cenanovic was injured at work when she slipped and fell on a wet floor. DSOF f 10;

R. 45-3, Exhs. 7, 8(a); Pl.’s Resp. DSOF f 10. Cenanovic’s injuries included neck pain,

a lower back contusion and sprain, headaches, numbness, and tingling sensations,

among others. DSOF f 11; R. 45-3, Exh. 8(b); Pl.’s Resp. DSOF f 11. The following

3 As a threshold matter, Hamdard argues that parts of Cenanovic’s response to

Hamdard’s L.R. 56.1(b)(3) Statement of Facts should be struck. R. 54, Def.’s Reply at 3-4.

Hamdard argues that many of Cenanovic’s exhibits are not cited in her response brief, R. 52,

or her response to Hamdard’s statement of facts, R. 53, and thus should be stricken. In up­

coming footnotes in this Opinion, the Court addresses the admissibility of Cenanovic’s prof­

fered exhibits to the extent those exhibits are necessary for this Opinion. Hamdard also ar­

gues that Cenanovic presents a series of argumentative denials that fail to cite to specific

evidentiary materials to justify these denials. Although the Court appreciates the importance

of parties pointing to the record for support when issuing factual denials, summary denials

are sometimes inescapable where the characterization of evidence is so closely tied to the

litigants’ underlying merits arguments.

2

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week she submitted a doctor’s note to her supervisor at Hamdard, Kiran Siddiqui,

along with a workers’ compensation claim filed on August 28, 2018. DSOF H 12; R. 453, Exhs. 7(a), 8(a); PL’s Resp. DSOF H 12. That same day, Cenanovic began taking

her job-protected medical leave under the Family and Medical Leave Act (commonly

known as the FMLA). Id.

In the first week of September 2018, Cenanovic sent Hamdard a successive

note from her doctor requesting that she be excused from regular work attendance

through October 6, 2018. DSOF H 13; R. 45-3, Exh. 10; Pl.’s Resp. DSOF U 13. The

days that followed featured various attempts to engage Cenanovic and her workers’

compensation representative, Jennifer Robinson, to establish a modified or light duty

work schedule. DSOF HU 14-17; R. 45-3, Exh. 12(a), (b); Pl.’s Resp. DSOF HU 14-17.4

One attempt included faxing a modified work form to Robinson on September 12,

2018, which provided what Hamdard conceived as a feasible light duty work regimen.

Exh. 12(a). But the form was never signed and returned by Cenanovic’s physician. Id.

Although Cenanovic disputes that she received an offer of modified work, she does

not dispute that this form was faxed to her legal counsel or, ultimately, shared with

her. Pl.’s Resp. DSOF HU 14-17. Neither Cenanovic nor her representative responded

to Hamdard’s attempts to discuss modified work for Cenanovic in September. Id.

4 Cenanovic objects to the factual allegation that modified or light duty work was ever

“offered” to her by Hamdard. Pl.’s Resp. DSOF HU 14-17. There is no need to conclusively

decide this issue because the dispositive analysis does not turn on it, but it is worth noting

that Hamdard did make various attempts to contact Cenanovic (through her representative)

to initiate coordination on a modified or light duty work schedule.

3

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On October 1, 2018, Hamdard left a voicemail for Cenanovic asking if, con­

sistent with her previous doctor’s note, she would return to work on October 6. DSOF

f 18; Bailey Aff. H 15; Pl.’s Resp. DSOF H 18. In response, Cenanovic emailed

Hamdard a third doctor’s note, this time asking that she be excused from regular

work attendance through November 7, 2018. DSOF H 19; R. 45-3, Exh. 11; Pl.’s Resp.

DSOF H 19. In an email on October 19, 2018, Siddiqui (1) informed Cenanovic that

Hamdard had received her third doctor’s note excusing her from regular work attend­

ance through November 7; (2) reminded Cenanovic of the light duty work form that

the company had faxed to Robinson a month earlier (to which no response had been

received yet); and (3) noted that Cenanovic’s FMLA leave would expire on November

12, 2018. DSOF U 21; Exh. 11; Pl.’s Resp. DSOF H 21. On the same day that this email

was sent to Cenanovic, her supervisors at Hamdard emailed Cenanovic’s medical case

manager at Travelers Insurance (which was Hamdard’s workers compensation rep­

resentative), informing Travelers that if Cenanovic were to submit a fourth doctor’s

note excusing her beyond the FMLA expiration of November 12, her “position will be

filled.” R. 53, Exh. 6.

Around three weeks passed. On November 8, 2018, Cenanovic submitted a

fourth doctor’s note asking for continued excusal from regular work attendance, this

time through December 12, 2018. DSOF f 23; R. 45-3, Exh. 14; Pl.’s Resp. DSOF H 23.

At this point, Cenanovic understood her FMLA leave would expire by November 12.

DSOF 1 24; R. 45-3, Exh. 2 HI 3, 6, 8; Pl.’s Resp. DSOF H 24. She did not return to

work on that date. Id. Hamdard then contacted the Travelers case manager

4

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overseeing Cenanovic’s case to inquire about her return-to-work plan before making

any final decisions on her employment. DSOF f 27; R. 45-3, Exh. 15; Pl.’s Resp. DSOF

1 27. Aside from the fourth doctor’s note of November 8, it appears there was no ad­

ditional follow up by Cenanovic with Hamdard about the status of how or when she

would be able to return to work. The modified work form faxed to Robinson on Sep­

tember 12, 2018, and referenced by Cenanovic’s supervisor in the October 19, 2018

email, had not triggered a response by Cenanovic. Instead, on November 27, 2018,

Cenanovic’s physician wrote and submitted to Hamdard another note requesting that

Cenanovic be excused from work for an additional four weeks. DSOF ^ 28; Exh. 15;

Pl.’s Resp. DSOF 1 28. Although this note said that Cenanovic’s “work status” would

be discussed following the additional four weeks, the note did not set forth any specific

timeline for Cenanovic’s return to work nor did it engage with any portion of the

modified duty form provided to Cenanovic by Hamdard. Id.

On November 30, 2018, Cenanovic was informed by Hamdard that it was end­

ing her employment, citing the dissolution of her position “[d]ue to restructuring

within the company.” DSOF H 33; R. 45-3, Exh. 16; Pl.’s Resp. DSOF If 33. Neither

party alleges that Cenanovic was informed that her position was in danger of being

eliminated due to a reorganization within the company before she was terminated.

Hamdard maintains that it understood Cenanovic was not planning to return to work

in the foreseeable future, even after her FMLA leave had expired. DSOF If 32; Bailey

Aff.

18-20; Exh. 11, 11(a). Hamdard requires its employees who take leaves of

absence to obtain clearance to return to work. DSOF f 34; Bailey Aff. f 21. At the

5

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time of her employment termination, Cenanovic could not apply and complete train­

ing for another position at Hamdard because she had not received clearance from her

own physician to return to work. Bailey Aff. f'If 7, 8, 9, 21, 23.

In mid-December 2018, Cenanovic filed a charge of discrimination with the

Illinois Department of Human Rights and the Equal Employment Opportunity Com­

mission, alleging ADA discrimination and retaliation. Compl. U 39, Exh. C. She was

not released to return to work until an independent medical examiner found that she

was fit for duty on May 6, 2019. R. 45-3, Exhs. 13(a), (b). When asked during her

EEOC intake interview about the basis for her claim, Cenanovic acknowledged that

she could not return to work at the time of her firing, “but when they fired me they

didn’t know that.” DSOF U 38; R. 45-3, Exh. 18; PSOF ^ 38. The EEOC found no rea­

sonable cause for the charge, R. 53, Exh. 5, and Cenanovic filed this lawsuit.

II. Legal Standard

Summary judgment must be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., All U.S. 242, 248 (1986). In evaluating sum­

mary judgment motions, courts must view the facts and draw reasonable inferences

in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378

(2007). The Court may not weigh conflicting evidence or make credibility determina­

tions, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011),

6

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and must consider only evidence that can “be presented in a form that would be ad­

missible in evidence.” Fed. R. Civ. P. 56(c)(2). The party seeking summary judgment

has the initial burden of showing that there is no genuine dispute and that they are

entitled to judgment as a matter of law. Carmichael v. Village of Palatine, 605 F.3d

451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, All U.S. 317, 323 (1986);

Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the ad­

verse party must then “set forth specific facts showing that there is a genuine issue

for trial.” Anderson, All U.S. at 256.

III. Analysis

Cenanovic brings claims of disparate treatment and failure to accommodate in

violation of the ADA, as well as a claim for retaliatory discharge under Illinois law.

Compl. fK 42—56. Hamdard moves for summary judgment on all claims, arguing

(among other things) that Cenanovic is not a “qualified individual” under the ADA

and lacks evidence to show that her discharge was caused by her exercise of workers’

compensation rights. Def.’s Mot. Summ. J.

A. ADA Claims

1. Qualified Individual

The Americans with Disabilities Act makes it unlawful for an employer to “dis­

criminate against a qualified individual on the basis of disability.” 42 U.S.C.

§ 12112(a) (emphasis added). Specifically, an employer cannot fail to make reasona­

ble accommodations to qualified individuals nor deny them employment opportuni­

ties because of their disability. Id. § 12112(b)(5)(A), (B) The ADA goes on to define

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“qualified individual” as a person who “with or without reasonable accommodation,

can perform the essential functions of the employment position

Id. § 12111(8)

(emphasis added). Cenanovic claims that Hamdard failed to accommodate her disa­

bility, refused to allow her to return to work, and terminated her employment because

of her physical disability. Compl. HU 42-48.

To prevail on the accommodation claim, Cenanovic must show: “(1) she is dis­

abled within the meaning of the ADA, (2) she is qualified to perform the essential

functions of her job either with or without reasonable accommodation, and (3) she has

suffered from an adverse employment decision because of her disability.” Spurling u.

C&MFine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (cleaned up).5

The parties agree that Cenanovic was regarded as disabled within the meaning

of the ADA, because she was suffering from physical impairments that substantially

limited major life activities following her workplace injury. 42 U.S.C. § 12102(1);

DSOF HU 10-12; Pl.’s Resp. DSOF HU 10-12. The parties diverge on whether Cenanovic was a “qualified individual” who could perform the essential functions of her

job.

Hamdard’s primary contention is that Cenanovic was unable to work at all

after her job-protected leave ended in early November 2018, so she was not a “quali­

fied individual” under the ADA. R. 45-1, Def.’s Mem. at 6. Hamdard points out that

5This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,

18 Journal of Appellate Practice and Process 143 (2017).

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Cenanovic filed a workers’ compensation claim for total disability benefits and took

FMLA leave that was extended multiple times. Id.; DSOF 1Hf 12-13, 19, 21, 23; Pl.’s

Resp. DSOF lf| 12—13, 19, 21, 23. A modified duty form was faxed to Cenanovic’s

workers’ compensation attorney, Jennifer Robinson, by Hamdard’s workers’ compen­

sation insurer, Travelers, in mid-September 2018. DSOF

14-16; Pl.’s Resp. DSOF

HI 14-16. Yet this form went unanswered by Robinson and Cenanovic for months,

even as Hamdard repeatedly attempted to confirm when Cenanovic planned on re­

turning to work. DSOF

17, 19; Pl.’s Resp. DSOF Tf^f 17, 19. On September 26, 2018,

Robinson emailed Travelers case manager Jonathan Sobkowiak with a summary of

Cenanovic’s visit with her orthopedic physician the day before—but the email men­

tioned nothing about the modified work form. R. 45-3, Exh. 8(b). Cenanovic was also

reminded in a mid-October 2018 email from her supervisor, Kiran Siddiqui, that her

FMLA leave would end on November 12. DSOF f 21; Exh. 11; Pl.’s Resp. DSOF ^ 21.

Instead of returning to work by the FMLA lapse date, she submitted another doctor’s

note on November 8, 2018, asking to be excused from regular work attendance for

another four weeks. DSOF f 23; Exh. 14; Pl.’s Resp. DSOF U 23. But Cenanovic’s

submission omitted any response to the modified duty form, confirmed she would not

be returning to work after her FMLA leave expiration, and provided neither her em­

ployer nor her workers’ compensation case manager with any time frame of when she

might return to work. DSOF ^ 27; Exh. 15; Pl.’s Resp. DSOF t 27. She sought another

leave-extension request in the final doctor’s note submitted on November 27, 2018,

which requested another month away from all work duties. DSOF If 28; Exh. 15; PL’s

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Resp. DSOF If 28. Hamdard inferred that Cenanovic would not soon return to work

and that the timeline for her receipt of necessary medical clearance to make that

return was effectively open-ended. DSOF flf 32—35; Pl.’s Resp. DSOF ft 32-35.

Hamdard terminated Cenanovic’s employment three days after submission of this

last doctor’s note. DSOF f 33; Exh. 16.

In opposing summary judgment, Cenanovic maintains that her job termination

violated the ADA because it rested on Hamdard’s purportedly misguided inference

that she “could not work at all for over six months after her job-protected leave ended

in November 2018.” R. 52, Pl.’s Resp. at 9-10 (emphasis omitted). Cenanovic argues

that the proper determination as to whether someone is a “qualified individual” must

be made at the time of the employment decision. Pl.’s Resp. at 10 (citing Collier v.

City of Chicago, No. 08-cv-5645, 2011 WL 2009925, at *5 (N.D. Ill. May 23, 2011)).

That is of course right. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560,

563 (7th Cir. 1996) (“The determination as to whether an individual is a ‘qualified

individual with a disability’ must be made as of the time of the employment decision.”

(cleaned up)). But even so, Cenanovic must still proffer enough evidence for a reason­

able jury to find that she was a qualified individual when she was fired, an element

of the ADA claim on which she bears the burden of proof. Nowak v. St. Rita High

School, 142 F.3d 999, 1003 (7th Cir. 1998) (“The plaintiff bears the burden of proof

on the issue of whether [she] is a ‘qualified individual’ under the ADA.” (cleaned up)).

Specifically, Cenanovic must present evidence that as of November 30, 2018, she both

possessed the necessary skills to perform her job, see 29 C.F.R. § 1630.2(m), and—

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more importantly—that she was “willing and able to demonstrate these skills by com­

ing to work on a regular basis.” Nowak, 142 F.3d at 1003 (cleaned up) (emphasis

added).

On the record evidence, no reasonable jury could find that Cenanovic was a

qualified individual under the ADA. This is so for two reasons. First, even when the

evidence is viewed in Cenanovic’s favor, her job position at Hamdard was eliminated

due to the health facility’s restructuring of its work force, which required her to un­

dergo additional training to transition into the newly minted role of Patient Support

Specialist.6 But she did not apply, nor did she complete any training for this role,

which means that she did not satisfy the requisite job-related requirements of the

position. Bailey Aff. ft 7-9. Cenanovic objects that Hamdard never offered her an

opportunity to apply for or train towards any new position after eliminating her preVLOUS role. Pl.’s Resp. DSOF f 31. But Hamdard “would have provided” Cenanovic

with said opportunity—“had she returned to work.” DSOF f 31. As discussed earlier,

Cenanovic’s return to work was not on the foreseeable horizon. Also, to prevail on a

6 Hamdard uses the terms “Patient Support Specialist” and “Patient Case Coordina­

tor” interchangeably for the new role that absorbed the responsibilities of Case Manager.

Compare R. 53, Exh. 4, EEOC Position Statement (“Current roles in Health Navigation, Case

Management, and Outreach and lack thereof, were blended together into a Patient Support

Specialist position []. Ms. Cenanovic was let go from her role as Case Manager as her job

duties and translation services were absorbed by other job descriptions and roles in the Pa­

tient Support Specialist Role.”), with R. 45-3, Exh. 5, Def.’s Resp. to Interrog. at 8—9 (“De­

fendant states that Plaintiff never applied for a Patient Care Coordinator position, and she

did not have the training to work on the medical side. Plaintiff never returned to her job when

her FMLA leave ended so she necessarily failed to meet the expectations of Patient Support

Specialist.”). For convenience’s sake, this Opinion adopts the term that Hamdard used in its

EEOC position statement, that is, Patient Support Specialist.

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claim that she should have been reassigned, Cenanovic must show that there was a

vacant position for which she was qualified. See Kotwica v. Rose Packing Co., Inc.,

637 F.3d 744, 750 (7th Cir. 2011). Cenanovic does not meet this burden because she

does not present evidence establishing—even giving her the benefit of reasonable in­

ferences—that there was a vacant position at Hamdard for which she qualified at the

time of the termination.

Second, even if Cenanovic’s position was not really eliminated on November

30, 2018, the record evidence would compel a reasonable jury to find that she was not

available to work when her employment was terminated. Cenanovic knew that her

FMLA leave had expired nearly three weeks before the termination. DSOF K 24; Pl.’s

Resp. DSOF 1 24. She had not engaged her employer on crafting a modified work

schedule nor had she filled out and returned the modified duty form to explain her

capacity to work. DSOF

14—16, 22; Pl.’s Resp. DSOF

14—16, 22. Cenanovic

simply submitted periodic doctor’s notes excusing her from work attendance in suc­

cessive monthly intervals. DSOF

13, 19, 23, 28; PSOF

13, 19, 23, 28. Put

simply, Cenanovic’s return-to-work date at the time of her termination was effectively

indefinite, and indefinite leave is not the type of accommodation that Hamdard was

obligated to provide under the ADA. See Severson v. Heartland Woodcraft, Inc., 872

F.3d 476, 482 (“If, as the EEOC argues, employees are entitled to extended time off

as a reasonable accommodation, the ADA is transformed into a medical-leave

statue—in effect, an open-ended extension of the FMLA. That’s an untenable inter­

pretation of the term ‘reasonable accommodation.’”)

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In response, Cenanovic essentially argues that she was only seeking a “short

leave of absence” which, in certain cases, is “analogous to a part-time or modified

work schedule.” Pl.’s Resp. at 10. Yes, that is language straight out of the pages of

Severson, 872 F.3d at 481. Tellingly, however, the next sentence in Severson clarifies

that “a medical leave spanning multiple months does not permit the employee to per­

form the essential functions of [her] job. To the contrary, the inability to work for a

multi-month period removes a person from the class protected by the ADA.” Id.

(cleaned up). That is what a reasonable jury must find here, even giving Cenanovic

the benefit of reasonable inferences.

Cenanovic also cites Haschmann v. Time Warner Ent. Co., 151 F.3d 591 (7th

Cir. 1998), for the proposition that a second medical leave of four weeks following an

earlier three-week leave and a modified schedule constitutes a reasonable accommo­

dation. Pl.’s Resp. at 10. The problem with this reliance is two-fold. First, unlike

Cenanovic, the plaintiff in Haschmann needed brief, intermittent leave but could and

did return to a normal work schedule. 151 F.3d at 600. Cenanovic never returned to

work, did not engage her employer on coordinating a return-to-work schedule, and,

in any event, was not able to work at or near the time of termination. Second, the

duration of the leave sought by the employee in Haschmann was less than half as

long—seven weeks at maximum and with a temporary return to work in between—

as compared to the leave sought by Cenanovic: 18 consecutive weeks counting the

request in the final doctor’s note of November 27, 2018. That is not “seeking a couple

weeks off,” Pl.’s Resp. at 10, and distinguishes this case from Haschmann. See Basden

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v. Pro. Transp., Inc., 714 F.3d 1034, 1038 (7th Cir. 2013) (applying similar distinc­

tion).

Indeed, Cenanovic does not dispute f that her doctor did not release Cenanovic

to return to work until May 6, 2019—five months after her job was terminated. DSOF

H 35; PI. Resp. DSOF f 35. Cenanovic asserts that her inability to work until May

2019 is irrelevant to the consideration of whether she was a qualified individual with

a disability at the time of her discharge. Pl.’s Resp. DSOF K 35; Pl.’s Resp. at 10. It is

true that the scrutiny of ability to work is made at the time of the adverse employ­

ment action—but facts learned after that time can have a tendency to show what the

state of affairs were at the earlier time. The fact that Cenanovic’s doctor did not re­

lease her for work until May 2019 is relevant (indeed powerfully relevant) to whether

Cenanovic was able to work at the time she was fired. If the evidence reveals, as it

does, that Cenanovic was an employee who needed long-term medical leave and could

not work, then she is not a qualified individual under the ADA. Severson, 872 F.3d at

479 (citing Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003)).

2. Interactive Process

Cenanovic’s final argument on the accommodation claims is that Hamdard

failed to engage in an interactive process to determine a reasonable accommodation

that would have enabled her to return to work. Pl.’s Resp. at 11. Ordinarily, when a

disabled worker communicates her disability to her employer and asks for an accom­

modation, the employer has the burden of interacting with the worker on crafting a

reasonable accommodation. See Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir.

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2000) (collecting cases). So, even though an employee bears the burden of showing

that a reasonable accommodation existed and that she asked for one, Pl.’s Resp. at

11, Cenanovic argues that in this case Hamdard failed to engage in the required in­

teractive process. Pl.’s Resp. at 11 (citing, among others, Mays v. Principi, 301 F.3d

866, 870-71 (7th Cir. 2002), abrogated on other grounds by EEOC v. United Airlines,

Inc., 693 F.3d 760 (7th Cir. 2012)).

But the record evidence definitively refutes—even viewing the evidence in

Cenanovic’s favor—that Hamdard failed to engage Cenanovic in the interactive process. Cenanovic does not deny that her lawyer received Hamdard’s modified duty

form in mid-September 2018, and she does not deny receiving a reminder about the

form from her Hamdard supervisor, Siddiqui, in mid-October 2018. Pl.’s Resp. at 18—

21. Instead, Cenanovic contends that Hamdard was not making a bona fide offer of

reasonable accommodation by providing the modified duty form, and thus did not

start the interactive process. Id. at 18—19. But it takes two to tango. The interactive

process requires a back-and-forth communication between the parties. Here,

Hamdard’s attempts to understand what work duties Cenanovic could perform con­

stituted the company’s attempts at “soliciting her suggestions for a reasonable accom­

modation.” Mays, 301 F.3d at 870. That was the start of the interactive process, and

Cenanovic should have engaged Hamdard with a response to the modified duty form

or, alternatively, initiated a separate discussion about reasonable accommodation in­

stead of assuming that she could continue her multi-month leave of absence without

at least trying to clarify how or when she would return to work.

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For these reasons, no reasonable jury could find that Cenanovic could perform

the essential functions of her Case Manager position when she was discharged. No

reasonable accommodation was possible because Cenanovic was not available to re­

turn to work for many months after her FMLA leave expired. She also did not respond

to Hamdard’s attempts to solicit her suggestions for constructing a reasonable accom­

modation. Because Cenanovic was not a qualified individual under the ADA, the

claims under the ADA must be dismissed.

3. Disparate Treatment

Given that no reasonable jury could find that Cenanovic was a qualified indi­

vidual, neither the accommodation claim nor the disparate-treatment claim can sur­

vive summary judgment. The accommodation claim was addressed above, so for the

sake of completeness, the Opinion also will address the disparate-treatment claim.

In addition to the qualified-individual element, Cenanovic’s disparate-treat­

ment claim requires her to offer enough evidence for a reasonable jury to find that

her firing was caused—that is, motivated—by her disability. See Monroe u. Ind. Dep’t

of Trans., 871 F.3d 495, 503-04 (7th Cir. 2017). To establish causation, Cenanovic

could have relied on a prima facie “show[ing] that her employer would not have fired

her, but for her actual or perceived disability.” McCann v. Badger Mining Corp., 965

F.3d 578, 588 (7th Cir. 2020) (cleaned up). But Cenanovic disclaims reliance, as she

is entitled to do, on the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) primafacie framework in favor of an overall assessment of the evidence. Pl.’s Resp. at 8.

“Under Ortiz v. Werner Enterprises, Inc., the ultimate question in a discriminatory

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employment termination case is ‘whether a reasonable juror could conclude that the

plaintiff would have kept their job if they were not disabled, and everything else had

remained the same.’” Graham v. Arctic Zone Iceplex, LLC, 930 F.3d 926, 929 (7th Cir.

2019) (cleaned up) (quoting Ortiz, 834 F.3d 760, 764 (7th Cir. 2016)).

One way to prove disparate treatment is to expose the employer’s proffered

reasons for the termination as pretextual. See Hitchcock v. Angel Corps, Inc., 718 F.3d

733, 737-38 (7th Cir. 2013). In evaluating pretext, “the question is not whether the

employer’s stated reason was inaccurate or unfair, but whether the employer honestly

believed the reason it has offered to explain the discharge.” Monroe, 871 F.3d at 505

(cleaned up). Pretext also demands “more than just faulty reasoning or mistaken

judgment on the part of the employer; it is a lie, specifically a phony reason for some

action.” Id. (cleaned up). Cenanovic offers three reasons why the explanation

Hamdard gave in its termination letter was pretextual.

a. Suspicious Timing

To begin, Cenanovic contends that the suspicious timing of her termination

proves causation. Pl.’s Resp. at 13. Specifically, Cenanovic cites the confluence of

three events. First, the date of termination was 18 days after the expiration of her

FMLA leave. Id. Second, an internal Hamdard email from October 19, 2018, said that

if Cenanovic submitted another doctor’s note excusing her from regular work attend­

ance, her position would be filled. Id. And third, Hamdard’s EEOC position statement

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asserted that the company discussed the restructuring of the Case Manager position

in mid-November 2018.7 Id.; R. 53, Pl.’s Resp. DSOF, Exh. 4.

Even when the evidence is viewed in Cenanovic’s favor, these contentions do

not show that the reasons offered by Hamdard amount to a “lie or a sham to cover up

discriminatory motives.” Monroe, 871 F.3d at 505. First, despite the expiration of

Cenanovic’s FMLA leave on November 12, 2018, and the internal email about filling

her position, Hamdard did not in fact immediately terminate her employment. In­

stead, two days after the FMLA expiration, Hamdard followed up with Travelers via

email to ask whether it had any news about Cenanovic’s plans to return to work,

while noting her submission of a doctor’s note requesting a further absence through

December 12. R. 45-3, Exh. 15. This email also stated that no “final decision” had

been made about Cenanovic’s employment. Id. After Hamdard implemented the re­

structuring in mid-November, Cenanovic received a termination letter on November

30, 2018, stating that her role had been eliminated. R. 45-3, Exh. 16. Given the multi-

7 Hamdard challenges the admissibility of the EEOC position statement. Def.’s Reply

at 3. But the position statement was also marked as Exhibit 3 of the Shawn Bailey Deposi­

tion. R. 54-3, Exh. 3, Bailey Tr. at 19:19-24:14. During the deposition, Hamdard objected to

Bailey’s testimony about the EEOC position statement because she was not speaking on be­

half of the corporation and because it was unclear to her counsel if this was the final draft of

the position statement. Neither party appears to have tried—not during the Bailey deposi­

tion, nor later in discovery—to verify whether this was indeed the final draft of the position

statement submitted by Hamdard to the EEOC. Although Hamdard challenges the authen­

tication of Exhibit 4, the company relies on the position statement throughout its reply brief

and proffers no substitute exhibit or affidavit challenging the authenticity of the exhibit.

Given the deposition testimony about the statement, and viewing inferences in Cenanovic’s

favor, the version of the position statement reflected in Exhibit 4 is admissible for purposes

of summary judgment evaluation.

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month leave, and the continued gap in response from Cenanovic about a return to

work, Hamdard did not jump to terminate her employment.

Even if the timing of Cenanovic's discharge 18 days after expiration of FMLA

leave and 41 days after the internal Hamdard email from October 19 gives rise to

some suspicion, suspicious timing alone is generally not enough to survive summary

judgement when “reasonable, non-suspicious explanations for the timing of termina­

tion” are otherwise proven by the record. McCann, 965 F.3d at 592—93 (cleaned up).

Here, there is no genuine dispute that Hamdard really was undergoing a company­

wide reorganization of its business, including the Case Manager position.8 DSOF

It 29-31; Pl.’s Resp. DSOF UK 29-31. Consistent with the mid-November 2018

timeframe for restructuring discussions cited in Hamdard’s EEOC position state­

ment, Cenanovic’s position was later absorbed into the Patient Support Specialist

role. R. 53, Exh. 4.

b. Shifting Explanations

Cenanovic next argues that Hamdard has offered shifting explanations for dis­

charging her, thus giving rise to an inference of pretext. Pl.’s Resp. at 13—16. Cenanovic cites four purported inconsistencies. First, in an email exchange on October 18,

8 Cenanovic objects that the restructuring of the Case Manager position did not really

start until mid-November 2018, as Hamdard stated in its EEOC position statement. PSOF

ft 29—31. But that is still before Cenanovic’s employment was terminated, and Cenanovic

offers no evidence to contradict that between 2017 and 2018, Hamdard significantly restruc­

tured its business and really did transition Case Managers into the Patient Support Special­

ist role. In a deposition, Cenanovic did ask Hamdard’s head of hiring about the unusual twoyear timespan for this transition. See Bailey Tr. at 46:9-47:8. But this point was not raised

by Cenanovic in her response brief.

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2018 between Cenanovic and supervisor Siddiqui, Hamdard pointed to the exchange

as evincing “hostile behavior,” Pl.’s Resp. at 14, when in fact it was not. Second, as

discussed earlier, in the October 19, 2018 email between Hamdard and a Travelers

representative, Hamdard declared that if Cenanovic presented another doctor’s note

for a leave extension, then her position would be filled. Id. 14—15. The third explana­

tion proffered by Hamdard, Cenanovic says, is the organizational restructuring. Id.

at 15. And fourth, Cenanovic characterizes Hamdard’s arguments in this case as say­

ing that she was both non-compliant with employee-attendance policies and never

applied for the Patient Support Specialist role. Id. Although Cenanovic labels these

as four separate explanations for her firing, in fact the record evidence shows that

Hamdard offered a single reason—the one in her termination letter, that is, the re­

structuring—and the other circumstances are simply context for that decision.

At the outset, it is true that “[sjhifting and inconsistent explanations can pro­

vide a basis for a finding of pretext. But the explanations must actually be shifting

and inconsistent to permit an inference of mendacity.” Schuster v. Lucent Techs., Inc.,

327 F.3d 569, 577 (7th Cir. 2003) (cleaned up). Here, Hamdard has not disownedwhether in arguing this motion, presenting its EEOC position statement, or trans­

mitting a termination letter to Cenanovic—its primary explanation that organiza­

tional restructuring caused the elimination of the Case Manager position, and with

it Cenanovic’s job. Compare DSOF IHf 29—31, 33 with R. 45-3, Exh. 16 and

R. 53,Exh. 4. The pronouncement in the October 19 email to Travelers—that is, that

Cenanovic’s job would be terminated if she submitted another doctor’s note—did not

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in fact come to fruition. Indeed, the record shows that no decision was made on her

employment until after November 14, 2018. R. 45-3, Exh. 15. This explanation is con­

sistent with the mid-November timeline for organizational restructuring proffered by

Hamdard in its EEOC position statement and in the termination letter.

With regard to Hamdard’s reference to hostile behavior, this issue arises from

a single email in which Hamdard’s recruitment manager forwarded Cenanovic’s Oc­

tober 18 email exchange with Siddiqui to Travelers, citing displeasure with Cena­

novic’s tone and asking Travelers for “options.” Pl.’s Resp. at 14 (citing R. 45-3,

Exh. 11). But nothing came of that, as confirmed by the absence of any evidence of

follow up to that request, and Bailey disclaimed that hostile behavior was a basis for

the termination. R. 54-3, Exh. 3, Bailey Tr. at 35:13-41:20. Yes, Hamdard’s attorneys

have at times invoked this purportedly hostile email exchange in the summary judge­

ment filings. Def.’s Mem. at 2; DSOF f 20. But the references are gratuitous; the

briefs do not actually cite hostility as a reason for Cenanovic’s discharge. If anything,

the email exchange is cited to support Hamdard’s argument that Cenanovic preferred

not to be contacted directly for follow-on work requests while on leave—a request she

explicitly makes in the text of her email response to Siddiqui. R. 45-3, Exh. 11(a); see

also Bailey Tr. at 53:7—9, 75:3-13.

Lastly, Cenanovic’s extended absence and indefinite absence into the future

were not offered by Hamdard as a free-standing, independent reason for her termi­

nation. Instead, those facts explain why, after the elimination of the Case Manager

position in November 2018, Hamdard did not invite Cenanovic to apply for a

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transitional roL

■she was on an open-ended absence. It is true that Hamdard could

have been clearer on this point in the termination letter and in the EEOC position

statement. But that does not mean that a reasonable jury could find that Hamdard

has “shifted” its explanation for the termination.

All in all, even viewing the evidence in Cenanovic’s favor and even considering

all of Cenanovic’s arguments together—purportedly suspicious timing and allegedly

shifting explanations—no disparate treatment could be found by a reasonable jury.

c. Similarly Situated Employees

One final point is worth making on the ADA claims. Earlier in the litigation,

Cenanovic alleged in the Complaint that hers was the only Case Manager position

terminated and that the other Case Managers were still employed by the company.

Compl. m 37-38. That indeed would have been important circumstantial evidence

that the purported restructuring was a pretext. But now with discovery in the books,

Cenanovic does not provide any corroborating evidence for this allegation. Her re­

sponse brief simply refers back to the Complaint—which is not evidence—and other­

wise disclaims the need to show that there were similarly situated employees who

were treated differently. Pl.’s Resp. at 16.

B. Retaliatory Discharge

1. Supplemental Jurisdiction

The final question is whether to retain supplemental jurisdiction over Cena­

novic’s common law claim for retaliatory discharge, and if so, whether that claim sur­

vives summary judgment. Ordinarily, when all federal claims are dismissed from a

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case, “there is a presumption that the court will relinquish jurisdiction over any re­

maining state law claims.” Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 631

(7th Cir. 2016) (per curiam). Indeed, this presumption is statutorily expressed in 28

U.S.C. § 1367(c)(3), which provides for the discretionary relinquishment of jurisdic­

tion over state claims when the claims providing original jurisdiction (here, federalquestion jurisdiction) have been dismissed. Here, however, neither side asks this

Court to relinquish supplemental jurisdiction over the retaliatory-discharge claim.

And “when difficult and unsettled state law issues are not implicated by the [supple­

mental] claims, it is entirely acceptable under the discretionary principle for a federal

court to decide those claims even after dismissing the main claim.” Timm v. Mead

Corp., 32 F.3d 273, 276-77 (7th Cir. 1994) (cleaned up). Here, the retaliatory-dis­

charge claim is governed by straightforward legal principles; the litigation is over

three years old; and the parties have completed discovery. There is “no need to delay

the resolution of this matter ... by having the parties litigate the unspectacular state

law issues anew in state court.” Id.

2. Causation

The Illinois Workers’ Compensation Act establishes a comprehensive proce­

dure to compensate employees injured on the job. See 820 ILCS 305/1 et seq. The

Illinois Supreme Court recognizes a common law claim for retaliatory discharge

where an employee is fired because of her actual or anticipated exercise of workers’

compensation rights. See Kelsay v. Motorola, Inc., 384 N.E.2d 353, 357 (Ill. 1978). To

prevail on a claim of retaliatory discharge, Cenanovic must prove three elements: “(1)

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Case: l:20-cv-07612 Document #: 68 Filed: 03/28/24 Page 24 of 25 PagelD #:787

that [she] was an employee before the injury; (2) that [she] exercised a right granted

by the Workers’ Compensation Act; and (3) that [she] was discharged and that the

discharge was causally related to [her] filing a claim under the Workers’ Compensa­

tion Act.” Beatty v. Olin Corp., 693 F.3d 750, 753 (7th Cir. 2012) (cleaned up).

If an employer fired an employee based on a “valid, non-pretextual reason,”

then the employee cannot prevail on a retaliatory-discharge claim. Carter v. Tennant

Co., 383 F.3d 673, 678 (7th Cir. 2004). In analyzing an employer’s proffered reason

for termination, the question again is the honesty of the reason. See McCoy v. Maytag

Corp.,495 F.3d 515, 522 (7th Cir. 2007). Here, as discussed extensively above,

Hamdard maintains that Cenanovic’s Case Manager position was eliminated, so

Cenanovic could not work at all when this restructuring decision was made, and her

job thus was terminated for valid and non-pretextual reasons. Def.’s Reply at 15-16.

Cenanovic argues that the termination was based on her exercise of her workers’

compensation rights. Pl.’s Resp. at 21-22.

This dispute is a replay of the dispute over whether Hamdard terminated

Cenanovic’s employment due to the restructuring of the Case Manager position. Just

as the record evidence showed that the restructuring led to the termination for pur­

poses of the ADA claim, the same holds true for the retaliatory-discharge claim. In­

deed, Cenanovic does not dispute that her fellow Hamdard employees who filed work­

ers’ compensation claims—including one who filed contemporaneously with Cena­

novic—returned to work and kept their jobs. DSOF H 41—44; Pl.’s Resp. DSOF

111 41-44.

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IV. Conclusion

Hamdard’s motion for summary judgment, R. 45, is granted on all claims.

ENTERED:

s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: March 28, 2024

25

Additional material

from this filing is

available in the

Clerk's Office.