2017
WL 569015

Only
the Westlaw citation is currently available.

United
States District Court,

N.D.
Illinois, Eastern Division.

Elda
Alanis, Plaintiff,

v.

Metra,
Defendant.

No.
13 CV 5962

Signed
02/13/2017

Brian Thomas Henry, Kelly Ann Kono, Pretzel & Stouffer,
Chartered, Chicago, IL, for Plaintiff.

 Manish S. Shah, United States District Judge

 *1 Plaintiff Elda Alanis brings this action against her
employer, defendant Metra, for discriminating and retaliating against her on
the basis of her disability, Hispanic ancestry, and color; and for failing to
reasonably accommodate her disabilities. Metra moves for summary judgment. For
the following reasons, the motion for summary judgment is granted.

 

I. Background

 Metra filed this motion for summary judgment on August 3,
2016. See [54].1 Alanis’s response was due on October 24,
2016. See [60]. On the day her response was due, Alanis filed a motion
for extension of time to respond to the motion for summary judgment, which I
granted. See [61], [62]. Alanis’s new deadline to respond was December
23, 2016. See [62]. To this day, Alanis has not filed a response to
Metra’s motion for summary judgment or to Metra’s Local Rule 56.1 statement of
facts. As a result, I will rely on Metra’s statement of the facts to the extent
that it is supported by evidence in the record. N.D. Ill. L.R. 56.1(b)(3)(C)
(“All material facts set forth in the statement required of the moving party
will be deemed to be admitted unless controverted by the statement of the
opposing party.”); see also Raymond v. Ameritech Corp., 442 F.3d
600, 608 (7th Cir. 2006).

 

1. The Complaint

 Alanis bases her claims under the ADA, Title VII, and § 1981
on the same set supporting of facts, which she outlines in the complaint. Her
version of the facts, however, is largely unsupported by the record.

After filing a charge with the EEOC in November 2011, in
which she alleged violations of her civil rights pursuant to the ADA, Alanis
says Metra forced her to go on medical leave. [29] ¶¶ 39, 56–57. “Metra refused
to permit Alanis to return, ostensibly because a psychological evaluation was
required.” [29] ¶ 40. On January 6 and 8, 2012, Alanis says she gave Metra two
notes from her doctors, clearing her to return to work and providing a list of
her requested accommodations. [29] ¶¶ 49–50. She says that Metra did not engage
with her to determine reasonable accommodations until the end of February of
2012 and that it did not provide any accommodations for her until April 20,
2012. [29] ¶ 51. As a result of the delay, Alanis says she was on a forced
leave of absence for five months. [29] ¶ 52. She notes that other employees who
did not have her protected characteristics,2 were not prevented from
returning to work in a timely fashion nor were they forced to undergo
psychological evaluations as she was. [29] ¶¶ 44, 57, 61, 69, 79.

When she returned to work, Alanis says Metra demoted her
because of her documented physical disabilities or perceived mental
disabilities. [29] ¶¶ 39, 60, 65, 68, 78. Meanwhile, she says two other
similarly situated employees who did not have her protected characteristics
were promoted. [29] ¶¶ 43, 60, 68, 78. Later, Alanis learned that Metra
withdrew its job posting for a Project Manager position “because she had
applied for it.” [29] ¶ 105. She also says that other similarly situated
employees who did not have her protected characteristics were paid more than
she was and were not prevented from attending outreach events as she was. [29]
¶¶ 70–71, 80–81, 118, 122–23, 128, 136–37.

*2 Despite Alanis’s fragrance-free accommodation request,
she says that Metra’s Senior Director of the Office of Business Diversity and
Civil Rights (formerly DBE), Janice Thomas, continued to wear perfume in the
workplace, that Thomas allowed other employees to wear fragrances and to use
the conference room near Alanis’s cubicle as a lunchroom, and that Thomas
failed to create guidelines for ordering food during staff meetings or
gatherings. [29] ¶¶ 90–99, 111–12. She says that non-Hispanic coworkers and
supervisors have made comments to her indicating that they knew she is the
individual with the disability regarding odors. [29] ¶ 143. In turn, they use
their knowledge of her disability to harass her “on account of her race, color,
and national origin.” Id. They harass her by continually eating their
lunches in a conference room in close proximity to her workspace, instructing
her to leave if she cannot tolerate the food odors at the all-staff meetings,
using scented cleaning products and personal perfumes, and putting Alanis’s
workstation in a high foot traffic area. Id.

2. The Record

Metra hired Alanis almost ten years ago as a college
graduate DBE Associate. [56] ¶ 2. In the fall of 2011, Thomas reviewed existing
job descriptions in the DBE area and concluded they did not match the
employees’ actual job functions. [56] ¶ 54. As a result, Thomas drafted new job
descriptions for employees in the DBE area, including Alanis. Id. Thomas
discussed her findings with Alanis and two other DBE employees, Steve Oganovich
and Brittany Waters, and explained that she would recommend to a compensation
consultant that their job titles be changed.3 [56] ¶ 55. Thomas did,
in fact, recommend to the consultant that Alanis’s job title be reclassified.
[56] ¶ 56. As the study was underway when Thomas made the recommendation, the
proposed changes did not go into effect immediately. [56] ¶ 59–61.

On November 2, 2011, while at work, Alanis experienced
difficulty breathing and various other symptoms. [56] ¶ 24. Metra sent Alanis
to its contracted medical provider, where a doctor examined her. [56] ¶¶ 24–25.
The doctor noted that she behaved inconsistently during the examination. [56] ¶
25. He concluded that she could return to work, but he informed Alanis that she
must obtain a psychological clearance examination by December 2, 2011, or else
she would be prohibited from working at Metra.4 Id. 

Approximately one week later, Alanis was at work again when
she began to experience similar symptoms. [56] ¶ 26. For the next several days,
Alanis came to work, but claimed she could not speak and she would only
communicate via text message or pen and paper. [56] ¶¶ 27–29. On November 17,
2011, the doctor examined Alanis again. [56] ¶ 29. He reported that Alanis used
pen and paper to communicate with him, but that when Alanis had to communicate
with the receptionist, she whispered. Id. After examining her, the
doctor concluded that Alanis’s “inability” to speak prevented her from
performing her job duties and thus she was “medically disqualified” from
working. [56] ¶ 30. A few days later, Alanis submitted a request for FMLA
continuous leave, which she backdated to begin on November 18, 2011; she also
submitted an application for short term disability benefits. [56] ¶ 31.

 Alanis’s Annual Performance Appraisal for 2011 reported an
overall score of “Needs Improvement.” [58-1] at 33. This resulted in Metra
placing Alanis on a “90 Day Performance Improvement Plan.” [58-1] at 37. Thomas
sent Alanis a memorandum explaining that if she “fail[ed] to make the required
improvements in the areas identified, [she would] be disciplined or
terminated.” Id. Her performance eventually improved; in 2012, Alanis’s
annual review reflected that her performance “Meets Expectations.” [58-1] at
53. 

*3 In early January 2012, Alanis submitted notes from her
treating doctors releasing her to return to work and requesting accommodations.
[56] ¶ 33. Since Alanis had failed to obtain psychological clearance, though,
Metra did not permit her to return to work.5 Id. At that
time, Alanis’s yearly salary was $41,623. [56] ¶ 65. Another Metra employee
with the same title, Brittany Waters, earned the same yearly salary as Alanis. Id.
Steve Oganovich, who also held the same title as Alanis, but who had worked at
Metra for fourteen years longer than Alanis, earned a higher yearly salary than
Alanis ($49,644). [56] ¶¶ 65–66. At the end of January, Metra posted a job
posting for a DBE Compliance Specialist position. [56] ¶ 57. Oganovich applied
to the posting and was awarded the position. [56] ¶ 59. His old position was
reclassified as DBE Compliance Specialist and it, too, was posted as a job
opportunity. [56] ¶ 59. Waters applied to that posting and she was awarded the
position. Id. Alanis did not apply to the DBE Compliance Specialist
posting because she believed (due to her conversation with Thomas in the fall)
that she had already been promoted to that position. [56] ¶ 58. Based on these
job changes, Oganovich and Waters each earned a higher salary than Alanis in
2012.6 [56] ¶ 67.

 

Metra also agreed to take actions to reduce workplace odors,
which included changing the cleaning solutions in the restroom on the floor
where DBE staff worked, instructing DBE staff to use only the approved cleaning
solutions, instructing DBE staff to refrain from wearing strong fragrances, and
moving Alanis’s workspace to a cubicle farther away from the refrigerator and
microwave (one source of the odors she was complaining about). [56] ¶¶ 41,
46–47. When Alanis complained that DBE staff members were not complying with
Metra’s directions, Metra responded by inviting Alanis to report any odor
issues contemporaneously so that they could be investigated. [56] ¶ 48. On the
one occasion that Alanis did contemporaneously report an odor issue, Thomas
intervened and reminded that DBE staff member of the restriction on strong
fragrances. [56] ¶ 49.

 At the end of March 2013, Metra formally promoted Alanis to
DBE Compliance Specialist and made her title change retroactive to January
2013. [56] ¶ 61. Her salary increased from $41,623 to $55,563 over the course
of three incremental, but retroactive, raises.7 [56] ¶ 71. Around
the same time as her formal promotion, Alanis applied to a job posting for a
Community Liaison position at Metra. [56] ¶ 62. The position required
applicants to have a Bachelor’s Degree in Business Administration, Marketing,
or in a related discipline, or to have related experience. Id. Alanis
had a Master’s Degree in English and Writing, [58] at 37, 145:18–19, but Metra
gave the position to Ashley Colquitt, who had a Master’s Degree in Public
Relations and Advertising. [56] ¶ 63. At the end of that year, Alanis also applied
to a job posting for a Project Manager position. [58] at 38, 151:22–152:5. She
was scheduled to interview with Thomas for the position, but that interview was
rescheduled twice and she never had the opportunity to sit for it; Metra
withdrew the job posting. [58] at 39, 156:1–158:24. Alanis testified that she
heard from another employee that Thomas said Metra withdrew the position
because Alanis had applied for it. [58] at 40, 159:20–24. 

*4 Once Thomas became the Senior Director of the Office of
Business Diversity and Civil Rights, she thought it was important for her to
attend Diversity Action Committee meetings and other outreach events herself.
[58-5] ¶¶ 1–2. She stopped sending other Metra employees to such events, which
in turn meant Alanis was no longer able to attend outreach events like she used
to. [58] at 33, 130:13–131:3.

II. Legal Standards

Summary judgment is appropriate 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 dispute over a
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.,
477 U.S. 242, 248 (1986). Although Alanis failed to respond to the summary
judgment motion and she did not comply with Local Rule 56.1, Metra does not
automatically prevail on its motion for summary judgment. Raymond, 442
F.3d at 608. The burden of persuasion remains on Metra to show that it is entitled
to judgment as a matter of law. Id. The facts are construed in the light
most favorable to Alanis and all reasonable inferences are drawn in her favor. Bell
v. Taylor, 827 F.3d 699, 704 (7th Cir. 2016) (citation omitted).

III. Analysis

 

A. Discrimination and Retaliation Claims

 The Americans with Disabilities Act prohibits employers from
discriminating or retaliating against disabled employees because of their
disability. 42 U.S.C. §§ 12112(a), 12203(a). To establish a violation of the
ADA, the employee must prove: (1) she is disabled; (2) she is qualified to
perform her essential functions with or without reasonable accommodation; and
(3) the employer took an adverse job action against her because of her
disability. Winsley v. Cook Cty., 563 F.3d 598, 603 (7th Cir. 2009).

As for discrimination and retaliation claims under Title VII
and § 1981, the substantive standards and methods of proof are the same. Lane
v. Riverview Hosp., 835 F.3d 691, 695 (7th Cir. 2016). To survive summary
judgment under Title VII or § 1981, Alanis must present evidence that would
allow a reasonable juror to conclude that she was discriminated or retaliated
against due to her protected characteristic and that she suffered an adverse
employment action as a result. See Ortiz v. Werner Enterprises, Inc.,
834 F.3d 760, 765 (7th Cir. 2016). Evidence of such discrimination or
retaliation must be considered as a whole and not separated into “direct” and
“indirect” subcategories. Id.

Despite Alanis’s allegations, the record reflects that Metra
did not take any adverse actions against her, nor did it harbor a
discriminatory or retaliatory intent; therefore, Metra cannot be held liable
for discrimination or retaliation under the ADA, Title VII, or § 1981. An
adverse job action is “more than a mere inconvenience” and more than an
alteration of responsibilities. Nichols v. S. Illinois Univ.-Edwardsville,
510 F.3d 772, 780 (7th Cir. 2007). It must be significant, such as a
termination or a change to the employee’s compensation, financial terms, career
prospects, or to the workplace environment in a way that is degrading or
unsafe. Maclin v. SBC Ameritech, 520 F.3d 781, 787–88 (7th Cir. 2008).
“The showing a plaintiff must make to set out an adverse employment action
required for a retaliation claim is lower than that required for a
discrimination claim; a plaintiff must only show that the employer’s action
would cause a ‘reasonable worker’ to be dissuaded from making or supporting a
charge of discrimination.” Chaib v. Indiana, 744 F.3d 974, 986–87 (7th
Cir. 2014) overruled on other grounds by Ortiz, 834 F.3d 760.

 *5 The five month period during which Metra forbade Alanis
from returning to work was not an adverse action.8 A doctor had
concluded that Alanis was medically disqualified from performing her job
duties, which justified Metra’s decision to require Alanis to undergo a
psychological clearance examination before allowing her to return to work.9
Metra gave Alanis a thirty-day window to complete the task, but she refused to
sit for the examination for five months. Alanis could have avoided missing work
altogether had she timely complied with Metra’s requirement. The only reason
the examination affected the conditions of Alanis’s employment was because of
Alanis’s own actions and not because of any action by Metra.

When Alanis returned to work, she assumed the same job title
she had in November 2011. The discussion Thomas had with Alanis in fall 2011
about Thomas’s intention to recommend that Alanis’s job title be reclassified
is not the same as Thomas actually promoting Alanis. The record shows that
Metra formally promoted Alanis in March 2013, retroactive to January 2013.
There is nothing in the record about any earlier promotions. Since Alanis was
not promoted until 2013, Metra could not have demoted her in 2012. Thus,
Alanis’s claim that she was demoted is not borne out by any evidence.

To the extent Alanis was paid less than other DBE associates
at any given time, Alanis has not carried her burden of showing that the
employees she compares herself to are similarly situated to her. Without such
information, a court (and a jury) cannot know if those employees are proper
comparators nor can a factfinder conclude that the salary differences were
based on Metra’s discriminatory or retaliatory intent. Coleman v. Donahoe,
667 F.3d 835, 847 (7th Cir. 2012) (“There must be ‘enough common factors […]
to allow for a meaningful comparison in order to divine whether intentional
discrimination was at play.’ ”) (citation omitted). Moreover, Metra has articulated
a legitimate non-discriminatory business reason for the difference. Due to the
compensation study, Metra could only afford to increase employees’ pay to the
recommended amounts on an incremental basis. The staggered raises resulted in
some employees being paid more than their counterparts for limited periods of
time. Alanis does not have evidence to support a finding that Metra’s proffered
reasons were merely a pretext for its discriminatory intent vis-a-vis Alanis’s
disability, Hispanic origin, or color; consequently, any disparity in the
salary Metra paid her would not support a claim for discrimination or
retaliation.

 Metra did not act adversely to Alanis when it hired Colquitt
for the Community Liaison position over Alanis, because Colquitt’s
qualifications were better suited for the job than were Alanis’s. Relatedly,
there is no evidence in the undisputed record to support the assertion that
Metra withdrew the Project Manager posting because Alanis applied to it.
As such, these decisions are not significant enough to rise to the level of an
adverse action here. They are more akin to a mere inconvenience, which is not
actionable. They would not have dissuaded a reasonable employee from filing
relevant charges.

Not allowing an employee to participate in work-related
events that are necessary to the employee’s career advancement would likely
constitute an adverse action. Although Alanis blames her inability to
participate in outreach events as the reason for her poor performance review
and disciplinary actions, the record does not support her theory. Metra began
sending Thomas and not Alanis to such events in 2010 and yet, Alanis’s annual
performance review improved from “Needs Improvement” in 2011 to “Meets
Expectations” in 2012.10 The record shows that Alanis’s performance
was not tied to the outreach events. Without more, Metra’s decision to send
Thomas and not Alanis to these events was not an adverse action it took against
Alanis.

 *6 Although Alanis’s co-workers sometimes wore fragrances
and ate food in the conference room near her cubicle, which made her
symptomatic at times, there is no evidence that they did so because they wished
to harass Alanis on the basis of her race or color, or in retaliation for
protected activity on her part. Alanis harbors a subjective belief about her
co-workers’ motives, but she offers no admissible evidence to support the
necessary inference. A causal connection between the staff’s actions and
Alanis’s race, color, or protected activity is missing here. These actions do
not support a claim for discrimination or retaliation.

Once Metra learned that the changes it made to accommodate
Alanis did not eliminate her symptoms, Metra invited Alanis to notify it of any
odor issues contemporaneously so that the source could be investigated. When
Alanis did report an issue, Thomas intervened on Alanis’s behalf and reminded
the relevant staff member of the fragrance-free workplace requirement. The
record shows that Metra made reasonable efforts to provide (and police where necessary)
the accommodations it agreed to provide Alanis. That Metra could not guarantee
a fragrance-free environment for Alanis does not constitute an adverse action. 

In sum, a jury could not conclude from the undisputed record
that Metra took a significant employment action against Alanis to discriminate
against her; nor could a jury find that a reasonable worker in Alanis’s
position would be dissuaded by Metra’s actions from making a charge of
discrimination. Even if she could point to some adverse action, there is no
evidence in the record that Metra treated Alanis any differently than similarly
situated employees because of her protected characteristics. The
totality of the circumstances, therefore, does not provide a sufficient basis
for Alanis’s discrimination or retaliation claims under the ADA, Title VII, or
§ 1981. Metra is entitled to summary judgment on counts II, IV–X, and XII.

B. Reasonable Accommodations

 The ADA only requires an employer to make “reasonable
accommodations” to a disabled employee’s limitations. E.E.O.C. v. Sears,
Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005). Employers are not
required to provide the particular accommodation that an employee requests. Jay
v. Intermet Wagner, Inc., 233 F.3d 1014, 1017 (7th Cir. 2000). Instead, the
employer may choose what accommodation to provide, so long as it effectively
accommodates the employee’s limitations. E.E.O.C., 417 F.3d at 802.

 Metra could not have run afoul of these requirements in
January or February 2012 because during that time, Alanis was medically
disqualified from working at Metra. After Alanis completed a psychological
clearance examination and returned to work in April 2012, Metra then considered
her requests for accommodations and notified her of what accommodations it would
and would not make. Metra accommodated her by allowing her to modify the dress
code, take rest breaks away from her workstation, and to use a full spectrum
lamp. The one accommodation Metra denied and with which Alanis takes issue is
her request for a private office. But Metra’s two private offices were occupied
by employees who maintained confidential files. Since Alanis did not work with
confidential files, it was not feasible for Metra to remove one of the private
office’s residents and install Alanis in that office. The record shows Metra
went to great lengths to reasonably accommodate Alanis. “[W]here, as here, the
employer does not obstruct the process, but instead makes reasonable efforts
both to communicate with the employee and provide accommodations based on the
information it possessed, ADA liability simply does not follow.” Beck v.
Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996). As
such, Metra is entitled to summary judgment on Count III.

C. Hostile Work Environment

*7 In order to prevail on a hostile work environment claim
under Title VII and § 1981, Alanis must show that harassment at Metra was both
objectively and subjectively so severe or pervasive that it altered the
conditions of employment. Yancick v. Hanna Steel Corp., 653 F.3d 532,
544 (7th Cir. 2011). She must also produce evidence that the harassment was
based on her protected characteristic and that there is a basis for employer
liability. Hall v. City of Chicago, 713 F.3d 325, 330 (7th Cir. 2013)
(“Title VII is not a general prophylactic against workplace animus.”).

A work environment is objectively hostile when a reasonable
person would find it hostile or abusive. Smith v. Ne. Illinois Univ.,
388 F.3d 559, 566 (7th Cir. 2004). The work environment at Metra was not
objectively offensive. A reasonable person in Alanis’s position would
appreciate the various changes Metra made to reduce the existence of odors in
the workplace and would acknowledge the number of ways her co-workers had
adapted their own routines to avoid causing her discomfort. It would not be
reasonable to conclude that Alanis’s co-workers sought to aggravate her
symptoms in order to harass her on the basis of her race or color. There is no
evidence of a causal connection between the staff’s activities and Alanis’s
race or color.

An employer can only be liable for a hostile work
environment if the employee can show: (1) a supervisor participated in the
harassment; or (2) the employer was negligent in discovering or remedying the
harassment. If an employer takes reasonable steps to learn of and to rectify
harassment by its employees, it discharges its legal duty. Berry v. Delta
Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001). The employer’s response
must be “reasonably calculated to prevent further harassment under the
particular facts and circumstances of the case at the time the allegations are
made.” Id. (citation omitted). The only supervisor Alanis mentions in
her complaint is Thomas. Thomas did not participate in the alleged harassment;
she intervened on Alanis’s behalf to enforce the fragrance-free workplace
requirement. Given Alanis’s extreme sensitivity to an ever-changing number of
scents, it was virtually impossible for Metra to provide a fragrance-free
workplace for her; nevertheless, the steps Metra took to alleviate her
discomfort were reasonable. See Milligan v. Bd. of Trustees of S.
Illinois Univ., 686 F.3d 378, 384 (7th Cir. 2012) (collecting cases). Metra
is entitled to summary judgment as to Count XIII.

 IV. Conclusion

Metra’s motion for summary judgment, [54], is granted. Enter
judgment and terminate the civil case.

1 Bracketed numbers refer to entries on the district court’s
docket.

2 Alanis is a qualified individual under the ADA. [29] ¶ 38.
Alanis is also a person of Hispanic ancestry and a person of color. [29] ¶¶ 64,
74. She says she is the only person in her department that is of Hispanic
ancestry. [29] ¶ 66.

3 Alanis testified that her understanding of what was
discussed during this meeting was that she was “going to be promoted.” [58] at
21, 81:15–18.

4 Previous documentation from Alanis’s treating doctors
recommended that she seek psychological therapy or evaluation. [56] ¶ 23.

5 On December 2, 2011 (when the doctor’s thirty day window
for Alanis to undergo an examination had expired), Metra sent Alanis a letter
reminding her that she had not yet obtained psychological clearance to return
to work. [56] ¶ 32.

6 Kelsey Somerville was hired as a DBE Compliance Specialist
in May 2014 at a salary of $48,617; effective April 1, 2014, Alanis’s salary
was $55,563. [56] ¶ 75. Effective July 2, 2015, Somerville’s salary was $50,440
and Alanis’s salary was $57,091. Id. Loletha Johnson was hired in July
2013 as a Grade 6, DBE Compliance Specialist at a starting salary of $50,000;
at that time, Alanis’s salary was $51,006, and on April 1, 2014, both of their
salaries increased to $55,563. [56] ¶ 76. Shavon Moore was hired in December
2013 at a starting salary of $55,563. [56] at 77.

7 Metra had difficulty implementing all of the compensation
study’s recommended pay increases simultaneously; thus, the pay increase Alanis
received on March 29, 2013, was the maximum allowed at that time. [56] ¶¶
69–71.

8 The ADA and its implementing regulations allow employers
to require its employees to undergo a medical examination if the examination is
job-related and consistent with business necessity. 42 U.S.C. 12112(d)(4); 29
C.F.R. 1630.14(c).

9 Alanis has not pointed to any evidence of Metra treating a
similarly situated employee differently under such circumstances.

10 Poor performance reviews cannot be the basis of an
adverse employment action. Chaib, 744 F.3d at 984.