UNITED STATES DISTRICT COURT Western District of Wisconsin DEFENDANT S MOTION FOR SUMMARY JUDGMENT

Transcription

1 UNITED STATES DISTRICT COURT Western District of Wisconsin LAURA HILL Plaintiff, v. Civil Action No. 10-CIV-1076 (BK) FOX PUBLICATIONS Defendant. DEFENDANT S MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56, Defendant Fox Publications asks that this court grant its motion for summary judgment against the Laura Hill ( Plaintiff ) in this employment discrimination action. Plaintiff has failed to raise any genuine issue of material fact which must be fully adjudicated before the court. Specifically, Plaintiff has failed to show that she is a qualified individual as defined by the Americans with Disabilities Act and thus is not entitled to a remedy in this court. In addition, Plaintiff has failed to show any discriminatory pretext in the adverse employment action taken against her by Fox Publications. Respectfully submitted, Fox Publications Dated: April 18, 2010 By its attorney, Michelle A. McCarthy

2 UNITED STATES DISTRICT COURT Western District of Wisconsin LAURA HILL Plaintiff, v. Civil Action No. 10-CIV-1076 (BK) FOX PUBLICATIONS Defendant. FOX PUBLICATIONS MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Laura Hill ( Plaintiff ) brought this employment discrimination action against Defendant Fox Publications ( Fox ) alleging that Fox engaged in unlawful employment practices as defined by 102 (a) and 102(b)(5) of the Americans with Disabilities Act ( ADA ) by failing to reasonably accommodate her disability and by terminating her employment. 42 U.S.C 12112(a) and (b)(5)(2009); Compl. 22. Plaintiff contends that she is a qualified individual with a disability under Title I of the ADA and that, because of this status, her termination was unlawful. 42 U.S.C.A (8) (2009); Compl. 21. Fox asserts that Plaintiff is not a qualified individual under Title I of the ADA and denies that there was any discriminatory pretext involved in her termination. (Answer ) Finally, Fox asserts that the employment relationship ended because of Plaintiff s persistent attendance problems and her inability to perform the essential functions of her job. 2

3 II. STATEMENT OF THE CASE Fox hired Plaintiff as the book editor for Wisconsin Monthly in October (Compl. 10.) In this position Plaintiff had five essential job functions: (1) preparing 1,000-word book reviews for monthly publication, (2) preparing recommended reading lists for monthly publication, (3) attending weekly editorial meetings, (4) working with production staff and (5) attending occasional publicity events in the community. (Pl. s Dep. 2, Jan. 27, 2010.) It is undisputed that Plaintiff was competent worker from the time she was hired until the fall of 2006 when she began missing deadlines and editorial meetings. (Wormwood Dep. 3-6, Jan. 27, 2010.) From the fall of 2006 forward, Plaintiff s failure to perform the essential functions of her job increased in frequency and severity until Wisconsin Monthly managing editor Michael Wormwood was regretfully forced to terminate Plaintiff in March of (Compl. 19.) Plaintiff contends that the decline in her work was the result of what was later diagnosed as chronic fatigue and immune dysfunction syndrome ( CFIDS ). (Compl ; Pl. s Dep. 3-5.) Plaintiff states that she began feeling symptoms of fatigue and headache in the fall of 2006, although she did not seek treatment for these symptoms for nearly a year. (Pl. s Dep. 3.) In August of 2007 internist Dr. David Bull examined Plaintiff and failed to return a diagnosis for her fatigue and headaches. Id. Next, Plaintiff sought the advice of a second internist, Dr. Bernie Atkins, and he too failed to return a diagnosis for her symptoms. Id. at 2. Eventually Plaintiff was given a CFIDS diagnosis in December 2009, some three years after the onset of her symptoms, by Dr. Timothy Smith, a specialist in chronic immunodeficiency conditions. (Smith Dep. 3, Feb. 12, 2010; Pl s Dep. 4.) While Dr. Smith is certain that Plaintiff suffers from classic symptoms of CFIDS, he bases his diagnosis on little more than a review of the diagnostic test performed by Dr. Bull and Dr. Atkins. (Smith Dep. 2-3 (stating that there are no 3

4 precise diagnostic tests for CFIDS and that Plaintiff s case was diagnosed by a review of her lab work and other diagnostic tests )). Fox does however admit that this condition does render Plaintiff disabled under the ADA. (Answer 20.) From the onset of her symptoms until her eventual diagnosis, Plaintiff s performance at work began to decline, with the worst performance taking place after Plaintiff received a diagnosis. (Compl 12 (stating that Plaintiff was diagnosed with CFIDS on December 9, 2008); Wormwood Dep. 2 (noting a further decline in Plaintiff s work performance beginning in December 2008)). Plaintiff initially missed eleven days of work and one editorial meeting in the fall of (Wormwood Dep. 3.) In 2007, Plaintiff continued this practice, missing fourteen days of work, including three editorial meetings and a publication deadline for the November 2007 issue of Wisconsin Monthly. Id. Due to sympathy for her frequent illness, Mr. Wormwood decided to see if Plaintiff s performance would improve in Id. Unfortunately it did not as Plaintiff missed nineteen days of work between the months of June and November, including four editorial meetings and another publication deadline. Id. at 4. Despite a history of declining performance, in December 2008 Plaintiff asked Mr. Wormwood if it would be possible for her to work from home and be allowed to come in only for editorial meetings. (Compl. 13.) Mr. Wormwood agreed to modify Plaintiff s work schedule to allow her to work from home when she felt ill, but still required that she be in the office as much as possible, especially for weekly editorial meetings. (Compl. 13; Wormwood Dep. 4.) It was particularly important that Plaintiff be in the office to attend editorial meetings as the meetings involve a lot of give and take between about a dozen people, a situation that necessitates face to face communication with other staff members. (Wormwood Dep. 5.) 4

5 After Plaintiff agreed to this modified work arrangement, she worked from the office only fifty percent of the time between the months of December 2008 and February (Compl. 15.) Despite this accommodation Plaintiff still missed three required editorial meetings. (Wormwood Dep. 4.) It was during this interval of further declining performance that Plaintiff made two additional requests to work almost exclusively from home, despite Mr. Wormwood s clear indication that Plaintiff needed to be present in the office in order to work with the rest of the Wisconsin Weekly team. (Compl. 17, 19; Wormwood Dep. 5.) March 2009 marked Plaintiff s worst month with Wisconsin Monthly. During this month she worked only seven days, missing yet another publication deadline. (Compl ) While Mr. Wormwood had been willing to work with Plaintiff despite the missed editorial meetings and the missed deadlines, it became increasingly clear that Plaintiff was no longer able to perform any of the five essential functions of her job when she failed to attend the long planned and much publicized Wisconsin Monthly Day at a Madison Barnes and Noble bookstore. (Pl. s Dep 5 (Plaintiff refers to Wisconsin Monthly Day as the Harry Potter program )). Nearly a week after this debacle Plaintiff managed to return to the office, at which point Mr. Wormwood was given no choice but to terminate Plaintiff s employment. (Compl. 19.) III. STANDARD OF REVIEW In deciding a defendant s motion for summary judgment, pursuant to Fed. R. Civ. P. 56, the court must review the pleadings, the discovery and disclosure materials on file, and any affidavits to determine if there exists any genuine issue as to any material fact. Fed. R. Civ. P. 56(c)(2). If no genuine issue of material fact exists the movant is entitled to judgment as a 5

6 matter of law. Id.; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Ekstrand v. School Dist. of Somerset, 583 F.3d 972, (7th Cir. 2009). Additionally, it is the duty of the court to review all of the facts in a light most favorable to the non-moving party. See Ekstrand, 583 F.3d at However, the Seventh Circuit has stated: It is not our function to scour the record in search of evidence to defeat a motion for summary judgment. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d. 560, 562 (7th Cir. 1996). Finally, if after a review of the facts on record the court determines that the non-moving party has not met its burden by showing that material facts remain, the court must grant the motion in favor of the moving party. See Fed. R. Civ. P. 56(c)(2). IV. ARGUMENT The record of this case shows that Fox is entitled to a grant of summary judgment because there remain no issues of material fact as to any elements of Plaintiff s case. See Fed. R. Civ. P. 56(c)(2). First, the record indicates that Fox did provide Plaintiff with the reasonable accommodation of modified work schedule as recognized by the ADA. 42 U.S.C (9)(B) (2009); Wormwood Dep. 4. The record further indicates that Plaintiff was unable to perform the essential functions of her job even with this accommodation. (Wormwood Dep. 4.) Next, the record shows that Plaintiff is not a qualified individual under the ADA. To be regarded as a qualified individual the Plaintiff must be a person 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 (8) (2009). Plaintiff s own admissions indicate that she is unable to perform the essential functions of her job without accommodation. (Pl s Dep. 4 (stating I think I could [complete all of my duties as book editor] if I could work mostly 6

7 from home ) (emphasis added)). Plaintiff s inability to improve her performance with a modified work schedule demonstrates that there was no reasonable accommodation under which she would be able to perform the essential functions of her job. (Wormwood Dep. 5.) Finally, the record of Plaintiff s poor professional performance and erratic attendance amounts to termination for just cause. The record does not show that there was any discriminatory pretext with respects to Mr. Wormwood s decision to terminate Plaintiff. When viewed in its entirety the record does not show that any material facts remain here and thus a grant of summary judgment in favor of Fox is the necessary and appropriate resolution to this case. A. FOX PROVIDED PLAINTIFF WITH THE ACCOMMODATION OF A MODIFIED WORK SCHEDULE WHICH IS RECOGNIZED AS REASONABLE UNDER THE ADA Plaintiff contends that Fox discriminated against her in violation of the ADA both by terminating her employment and by refusing to reasonably accommodate her disability. (Compl. 22.) The issue of accommodation will be addressed first, as it serves both to show that Plaintiff was reasonably accommodated by Fox, and that this accommodation proved an ineffective means of enabling Plaintiff to perform the essential functions of her job. (Wormwood Dep. 5). For Plaintiff to prevail on a claim of failure to make reasonable accommodations under the ADA, she must show first that she is a qualified individual with a disability, then that Fox was aware of her disability, and finally, that Fox failed to reasonably accommodate this disability. See E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005); Basith v. Cook County, 241 F.3d. 919, 927 (7th Cir. 2001). The record demonstrates that Plaintiff has failed to satisfy all three elements of this inquiry and has thus failed to prove that Fox discriminated against her by failing to offer a reasonable accommodation. 7

8 As to the first element, Plaintiff has failed to show that she is a qualified individual under the ADA because she is not able to perform the essential functions of her job with or without reasonable accommodation. 42 U.S.C 12111(8) (2009); See infra Part III.B.1. As to the second element, Fox does not dispute that Plaintiff is disabled within the meaning defined by the ADA. (Comp. 20; Answer 20.) As to the third element of this inquiry, Plaintiff has failed to meet her burden of proof because the record shows that Fox did provide Plaintiff with the reasonable accommodation of a modified work schedule. Here the record shows that Mr. Wormwood was willing to allow Plaintiff to work from home whenever she felt ill, provided that she still attend required editorial meetings and meet her deadlines. (Compl. 14; Wormwood Dep. 4.) Plaintiff was certainly aware that her work schedule had been modified to accommodate her as she did, in fact, work from home 50% of the time between the months of December 2008 and February (Compl. 15.) Accordingly, this modification of Plaintiff s work schedule was a reasonable accommodation as defined by the ADA, thus, Plaintiff has failed to satisfy the third and final element of the failure to accommodate test. 42 U.S.C 12111(9)(B) (2009). Additionally the Seventh Circuit has stated that an employer is not obliged to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation. Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996); see Mays. v. Principi, 301 F. 3d 866, 872 (7th Cir. 2002) (stating that an employer is not required to provide the accommodation... that is ideal from the employee s standpoint, only one that is reasonable in terms of costs and benefits ). Clearly Plaintiff was not satisfied with the modified work schedule Mr. Wormwood allowed her. However this accommodation was the only reasonable accommodation that Fox was able to provide since working from home is not 8

9 regarded as a reasonable accommodation by either the ADA or the Seventh Circuit. See infra Part III.C. Because Plaintiff has failed to demonstrate that Fox refused to reasonably accommodate her disability, a grant of summary judgment in favor of Fox is appropriate. B. PLAINTIFF IS NOT A QUALIFIED INDIVIDUAL UNDER THE ADA BECAUSE SHE IS NOT ABLE TO PERFORM ANY OF THE ESSENTIAL FUNCTIONS OF HER JOB WITH OR WITHOUT REASONABLE ACCOMMODATION 1. Plaintiff Is Not a Qualified Individual As Defined By the ADA At the center of Plaintiff s discrimination claim against Fox is the assertion that she is a qualified individual under the ADA. 42 U.S.C.A (8) (2009); Compl. 21. A qualified individual with a disability is defined as an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R (m) (2009); see Bombard, 92 F.3d at 560 (stating that qualified individual status is a two-step determination requiring a first an examination of the plaintiff s skill in relation to the job and second, a determination as to whether or not she can perform that job with or without accommodation). In addition, the Seventh Circuit has stated that it is [t]he Plaintiff who bears the burden of proof on this issue as to whether or not [s]he is a qualified individual under the ADA. Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir. 1998). Plaintiff has not and cannot satisfy her burden with respect to the each element of this inquiry. It is not disputed that Plaintiff had education and skills necessary to perform the job of book editor, thus the first element of the two part inquiry is satisfied. (Wormwood Dep. 3.) Plaintiff cannot however satisfy the second element of this inquiry as the record shows that she 9

10 was not able to perform the essential functions of her job with or without reasonable accommodation. Whether or not a person can be regarded as a qualified individual is necessarily linked to that person s ability to perform the essential function of her job. See 29 C.F.R (m) (2009). The Seventh Circuit has had the opportunity to address the qualified individual question on several occasions. In Miller v. Illinois Dept. of Correction, the Seventh Circuit held that the plaintiff s assertion that she was a qualified to perform the essential functions of corrections officer did not make it so. Miller v. Illinois Dept. of Correction, 107 F.3d 483, 487 (7th Cir. 1997). Rather, because the plaintiff was blind she was not qualified to perform the essential functions of such a position, specifically, watching the inmates. Id. at 485. Additionally, in Basith v. Cook County, the Seventh Circuit affirmed a district court holding that a pharmacy technician who could not perform the duty of delivering and stocking medications was not a qualified individual under the ADA even though his disability prevented him from lifting and walking. Basith, 241 F.3d at 927. Both Miller and Basith can be analogized with the present litigation as both cases show that there was no reasonable accommodation which could have been provided to allow the plaintiffs to perform the essential functions of their jobs. Here Plaintiff herself admits that she was not able to perform the essential functions of her job without accommodation, thus the only question that remains is if she could perform the essential functions of her job with a reasonable accommodation. (Hill Dep. 4.) This fact is most clearly evidenced by Plaintiff s request to work almost exclusively from home. Id. Additionally, Plaintiff s failure to attend all required editorial meetings and her failure to meet all required publication deadlines prior to a formal grant of modified work schedule in December 2008, further indicates that she was unable to 1

11 perform the essential functions of her job without reasonable accommodation. (Wormwood Dep. 3.) Like Miller and Basith then, this case turns on whether or not a reasonable accommodation exists that would allow Plaintiff to perform her job. The record shows that such a reasonable accommodation does not exist. This is supported by the fact that Plaintiff could not perform the essential functions of her job after Fox accommodated her with a modified work schedule which allowed her to work from home whenever she felt ill. See supra Part III.A. The record shows that after Plaintiff was accommodated with a modified work schedule, she failed to perform four of the five essential functions of her job when she missed a publishing deadline for a recommended reading list, several editorial meetings, and a major community event. (Wormwood Dep. 5.) Because of this inability to perform the essential functions of her job even with accommodation, Plaintiff has failed to show that she is a qualified individual as defined by the ADA and is thus not entitled to relief in this court. Miller, 107 F.3d at 485 (stating that if [an employee] can t perform the essential functions of her job... there has been no violation of the [ADA] and she has no right to relief ). 2. Essential Job Functions Are Determined by the Employer The record of this case cannot be construed to indicate that material facts remain as to what precisely constituted an essential function of Plaintiff s book editing job. The Seventh Circuit has stated that to determine the essential functions of a position, [the] court may consider, but is not limited to, evidence of employer s judgment of a position... the work experience of past incumbents of the job, and the work experience of current incumbents in similar jobs. Basith, 241 F.3d at 927. Despite what the court may consider in determining the essential functions of a job, the Seventh Circuit has made clear that they will not second-guess 1

12 the employer s judgment in describing the essential requirements for [a] job. DePaoli v. Abbott Laboratories, 140 F.3d 668, 674 (7th Cir. 1998); see Robin v. Espo Eng g Corp., 200 F.3d 1081, 1091 (7th Cir. 2000) (stating that [the court s role] is not to second guess the business decision of a company and inquire as to whether the goals set by management demand too much from its employees ). The court is reminded of this standard of review in light of the statements in the record made by New York Magazine managing editor Michael Richards who suggests that physical presence at the office is not required for the book editor at his publication. (Richards Dep. 3, Jan. 13, 2010) (stating that his book editor can usually take care of business through a conference call )). Mr. Richard s ideas about what makes a book editor are, of course, in direct conflict with Mr. Wormwood s ideas. (Wormwood Dep. 1.) It is not the job of this court however to resolve this difference of opinion. Rather, this court is asked to follow the line of reasoning established in Abbot and Robin and allow Fox to use its own judgment about what is required of a book editor. In light of the Seventh Circuit s unwillingness to second-guess the judgment of employers, the discrepancy between the opinions of Mr. Richards and Mr. Wormwood as to what they regard as essential to the position of book editor, does not give rise to an issue of material fact. DePaoli, 140 F.3d at 674; See Robin, 200 F.3d at 1091; See Basith, 241 F.3d at 928. C. PLAINTIFF S REQUESTS TO WORK FROM HOME IS NOT A REASONABLE ACCOMMODATION RECOGNIZED BY THE ADA OR THE SEVENTH CIRCUIT Although Plaintiff has failed to show that she is a qualified individual under the ADA, and is thus not entitled to any reasonable accommodation, Fox asserts that even if Plaintiff were a qualified individual, her request to work almost exclusively from home was unreasonable. The Seventh Circuit has had several opportunities to address the reasonableness of a work-from- 1

13 home accommodation and has concluded [a]n employer is not required to allow disabled workers to work at home and that it would take a very extraordinary case for the employee to be able to create a triable issue of the employer s failure to allow the employee to work at home. Vande Zande v. State of Wis. Dep t of Admin., 44 F.3d 538, 545 (7th Cir. 1995); See Mobley v. Allstate Insurance Co., 531 F.3d 539, (7th Cir. 2008) (stating that as a general matter working at home is not a reasonable accommodation); See, e.g., Rauen v. U.S. Tobacco Manufacturing Ltd. Partnership, 319 F.3d 891, 896 (7th Cir. 2003). Additionally, the court is again reminded that the Seventh Circuit s previous holding that an employer is not obliged to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation. Gile, 95 F.3d at 499; see Mays, 301 F.3d at 872. Because Plaintiff s preferred accommodation of working almost exclusively from home was not a reasonable one, Fox was at liberty to refuse it and offer her a modified work schedule instead. See supra Part III.A While it is not disputed that Plaintiff is disabled due to CFIDS, this is not the kind of extraordinary case where working from home would be regarded as a reasonable accommodation. Vande Zande, 44 F.3d at 545. In Vande Zande, the plaintiff, a clerical worker, requested to work from home due to complications arising from being a paraplegic. Id. Despite having a markedly inhibiting condition, the court in Vande Zande found that the plaintiff s employer was not required to allow her to work at home at her full pay and without the use of sick time as such an accommodation was not reasonable. Id. If complications arising from partial paralysis did not give rise to the kind of extraordinary case in which working from home was regarded as a reasonable accommodation, Plaintiff cannot construe her condition, 1

14 which is marked by intermittent fatigue, headache and muscle pain, as extraordinary by any means. Id.; Compl. 11; Smith Dep. 3. Aside from noting that working from home requires an extraordinary case, the Seventh Circuit has also further elaborate as to why an accommodation to work from home is not regarded as reasonable. In Vande Zande the court explained that working from home is not reasonable because it has the potential to reduce a worker s productivity due to lack of supervision by the employer. Vande Zande, 44 F.3d at 544. In addition, the court noted that many jobs require teamwork of a kind that cannot be accomplished when one member of the team is not present in the office. Id. Building on this reasoning, the court in Reuen noted that because Plaintiff s position [was] the kind of job that require[d] teamwork, interaction, and coordination of the type that require[d] being in the workplace a work at home accommodation was not reasonable. Rauen, 319 F.3d at 897. As has been noted, it was an essential function of Plaintiff s job to both work with production staff in the office and attend editorial meeting because such meetings involve a lot of give and take between about a dozen people ; Wormwood Dep. 5; or in fewer words, teamwork, interaction and coordination. Rauen, 319 F.3d at 897. Had Plaintiff been granted her request to work almost exclusively from home, she would have disrupted the ability of the production team and the editorial team to function efficiently. Under this scenario, the Vande Zande court s rationale regarding diminished productivity is taken to an even higher level as a work at home accommodation would diminish the productivity of several Wisconsin Monthly employees, not just Plaintiff s productivity. Vande Zande, 44 F.3d at 544. Finally, the record indicates that the decision to allow an employee to work from home is one left to the managing editor of the magazine as he is the best judge as to how to run his 1

15 magazine and make the most of his staff s talents. This is indicated by the statement of Fox employee Marlene Kennedy, who, as the copy editor for Madison Monthly, is allowed to work primarily from home. (Kennedy Dep. 2). Ms. Kennedy states that she was granted permission to work from home by her managing editor Philip Anastos. Id. Mr. Anastos and Mr. Wormwood are the best judges as to what is reasonable for their respective publications and they have accordingly made the staffing decisions that best suit their publications. In Mr. Anastos view, a copy editor, whose only duties are to read articles and edit them for grammar, is suited to work primarily from home, while, in Mr. Wormwood s view, a book editor who is required to attend editorial meetings and community events is not suited to work from home. Here again the court is reminded that it is the practice of the Seventh Circuit not to second guess the judgment of employers, DePaoli, 140 F.3d at 674; See Robin, 200 F.3d at1091; See, e.g., Basith, 241 F. 3d at 928. Thus, a difference in managerial styles does not give rise to an issue of material fact, making summary judgment in favor of Fox appropriate on this point as well. D. PLAINTIFF WAS TERMINATED FOR JUST CAUSE AND WITH NO DISCRIMINATORY PRETEXT ON THE PART OF FOX The record in this case clearly shows that Plaintiff was not a qualified employee under the ADA because she was not able to perform the essential functions of her job. See supra Part III.B.1. Because she was no longer able to do her job, Mr. Wormwood was given no choice but to terminate Plaintiff s employment. (Compl. 19.) This too can be compared to the employment action taken in Miller, where because of the plaintiff s progressive blindness, she was no longer able to perform the job of corrections officer and was thus terminated from that position. Miller, 107 F.3d at 485. While it is indeed regrettable that neither Fox nor any other 1

16 publisher may enjoy Plaintiff s now diminished talents as a book editor, this circumstance is not one that can be protected or alleviated by the ADA. Id. Although it is not contested that Plaintiff is disabled under the ADA, she cannot use her disability as a shield to deflect Fox s legitimate and non-pretextual interest in terminating her employment after the fact. The truth is she would have been terminated for being unable to perform the duties of her job, in spite of her disability rather than because of her disability. Fox had a justifiable and non-pretextual interest in publishing a magazine that was up to the standards the public had come to expect. Unfortunately, Plaintiff was not meeting those standards and thus her failure to perform her job could no longer be tolerated. V. CONCLUSION The record in this case has shown that there is no material issue of fact in dispute here, thus the only proper resolution is for the court to grant summary judgment in favor of Fox. Plaintiff is not able to bring this claim under the ADA because she has failed to show that she is a qualified individual with a disability. 42 U.S.C.A (8) (2009). Because Plaintiff is not protected by the ADA she may not attempt to seek a remedy under the ADA. Finally, Plaintiff has not shown that Fox s actions in terminating her were anything but justified in light of her inability to perform the basic and essential functions of her job. Summary judgment in favor of Fox is the only appropriate resolution to this case. Respectfully submitted by, Fox Publications Dated: April 18, 2010 By its attorney, Michelle A. McCarthy 1