Opinion
No. 97 C 7037
February 14, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas A Stuckey ("Stuckey") has sued the City of Naperville alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Before the Court is defendant's motion for summary judgment. Although Stuckey inserted a cross-motion for summary judgment with his response to defendant's summary judgment motion, he was never granted leave of court to do so and therefore, the Court need not address Stuckey's cross-motion because it is not properly before the Court. For the reasons provided in this Memorandum Opinion and Order, the Court grants defendant's motion and terminates this case.
Stuckey also sued Ronald Miller for alleged violations of 42 U.S.C. § 1983. However, the Court in a Minute Order of May 5, 1998 dismissed the claims against Miller and terminated him as a party to this action.
FACTS
The following facts are either undisputed or deemed admitted because the party's statement or response did not refute the other party's statement of fact and/or was unsupported by a citation to the record as required by the Local General Rule 12 (M) and 12(N), which this Court strictly enforces. The Court has ignored any part of the record that was: (1) not provided by the appropriate party, (2) improperly cited, or (3) unsupportive of a factual statement in the party's 12(M) or 12(N) submissions. Since the filing of the parties' briefs on their motions, Local General Rule 12(M) and 12(N) have been retitled LR 56.1(a) and LR 56.1(b). In this Memorandum Opinion and Order, however, the Court will use the old numbering system in order to make it clear as to which briefs the Court is referring.
On April 6, 1992, the City hired Stuckey, who was fifty years old at the time, as a jailer. (Defs.' Stmt. of Facts ("Defs.' 12(M)") ¶¶ 7, 14.) The essential functions of this position include the ability to: (1) subdue resisting individuals; (2) lift and carry equipment; (3) climb flights of stairs and ladders; (4) walk, stand, sit, or drive for long periods of time; (5) operate the required equipment with dexterity; (6) provide assistance to citizens and coworkers in distress, including, but not limited to, physical exertion and uncomfortable or hazardous conditions. ( Id. ¶ 9.)
On January 28, 1994, Stuckey injured his back while on duty and took a medical leave of absence. ( Id. ¶ 25.) Stuckey was cleared for work without restriction by his physician, Dr. Schmitz, and returned full-time on April 20, 1994. ( Id. ¶ 27.) Stuckey continued to work full-time, without restriction or accommodation, from April 20, 1994 to June 30, 1995. ( Id. ¶ 29.) June 30, 1995 was the last day that Stuckey worked for the City. ( Id. ¶ 31.)
In July 1995, Stuckey took another medical leave of absence and was prescribed physical therapy by his physician, Dr. Heim. ( Id. ¶ 32.) On August 16, 1995, Stuckey could not perform his duties as jailer due to medical restrictions, i.e., no repetitive bending, twisting, or lifting in excess often pounds, imposed on him by Dr. Heim. ( Id. ¶ 33; P1.'s 12(N) ¶ 17.)
On October 30, 1995, Stuckey underwent surgery on his back. ( Id. ¶ 35.) On October 31, 1995, Dr. Heim advised the City that Stuckey's rehabilitation following surgery precluded him from bending, twisting, or lifting more than five pounds for approximately twelve weeks, during which time Stuckey would participate in work hardening and physical therapy. (P1.'s 12(N) ¶ 21.) Dr. Heim subsequently stated that Stuckey was totally disabled from October 30, 1995, through April 25, 1996. ( Id., Heim Dep. Ex. 6.)
On May 22, 1996, John Comerouski and Katharine Nordengren of HealthSouth Sports Medicine Rehabilitation, Inc. ("HealthSouth") conducted a work hardening discharge evaluation and advised the City that they could not make a full duty work release recommendation. ( Id. ¶ 24.) Stuckey could not perform at the heavy physical demand level as required by his jailer position because he could only perform at the medium-heavy physical demand level. ( Id.) Dr. Heim concurred with HealthSouth's advice. ( Id. ¶ 26.) On June 24, 1996, another physician, Dr. Marquardt advised the City that it would be prudent to limit Stuckey's job activities to the medium-heavy physical demand level. ( Id. ¶ 25.)
On June 1, 1996, the City notified Stuckey to return to work on July 7, 1996 and advised him that his failure to return to work would be cause for discharge. (Def.'s 12(M) ¶¶ 43-44.) On June 5, 1996, Stuckey wrote to the City stating that he would be unable to report for work. ( Id. ¶ 45.) On July 7, 1996, Stuckey did not report to work and the City terminated his employment. ( Id. ¶ 46.)
On September 11, 1996, approximately three months after his termination, Stuckey received a medical release from Dr. Heim that stated that Stuckey was able to work with restriction to the medium-heavy physical demand level. (P1.'s 12(N) ¶ 35.) When Stuckey provided the City with his medical release from Dr. Heim, the City advised him that nothing could be done to re-employ him since he had been terminated three months prior. ( Id. ¶ 36.)
On November 12, 1996, Stuckey filed a charge of discrimination on the basis of disability and age with the Illinois Department of Human Rights ("IDHR") and the Equal Opportunity Commission ("EEOC"). (Def.'s 12(M) ¶ 5, Ex. C.) On July 15, 1997, the U.S. Department of Justice issued a right to sue letter regarding Stuckey's charge. (Compl., Ex. A) On October 9, 1997, Stuckey filed the Complaint in the instant suit alleging the City discriminated against him in violation of the ADA and ADEA.
DISCUSSION
Federal Rule of Civil Procedure ("Rule") 56(c) allows the Court to grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In considering the evidence submitted by the parties, we do not weigh it or determine the truth of asserted matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We "must view the facts, and all reasonable inferences drawn therefrom, in a light most favorable to the nonmoving party." Baron v. City of Highland Park, 195 F.3d 333, 337 (7th Cir. 1999). If a reasonable jury could not find for the nonmovant, it must be granted. Seshadri v. Kasraian, 130 F.3d 798, 804 (7th Cir. 1997).
I. Scope of the Charge and Statute of Limitations
First, the City argues that some of the conduct which provides the bases for Stuckey's ADA claims is outside the scope of his EEOC charge. The Court disagrees and finds that the failure-to-accommodate claims raised in the Complaint are within the scope of the charge because they are "like or reasonably related" to the failure-to-accommodate allegations of the charge. See Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976).
Next, the City argues, and the Court agrees, that Stuckey is time-barred from basing his ADA and ADEA claims on certain events occurring before January 16, 1996. A plaintiff suing under either the ADA or ADEA is required to file his EEOC complaint within 300 days of the alleged discriminatory conduct and failure to do so results in an untimely complaint. See Huels v. Exxon Coal USA, Inc., 121 F.3d 1047, 1049 (7th Cir. 1997) (ADA); Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 266-67 (7th Cir. 1995) (ADEA). However, "[t]he continuing violation doctrine allows a plaintiff to base a claim on a time-barred act by linking the time-barred act with an act that is within the limitations period." Duhart v. Fry, 957 F. Supp. 1478, 1483 (N.D. Ill. 1997).
Stuckey argues that the continuing violation theory applies because he has alleged that the City had an express, openly espoused policy that was discriminatory. See Bartmess v. Drewrys USA, Inc., 444 F.2d 1186 (7th Cir. 1971). One of the policies of which Stuckey complains is Resolution 96-07. (P1.'s 12(N) ¶ 8.) Stuckey does not allege, nor could he, that the City's conduct on March 11, 1994 and August 16, 1995 was a result of Resolution 96-07 because that resolution was not adopted by the City until April 1996. Thus, Resolution 96-07 could not have been the basis for the City's actions in 1994 or 1995. In addition, Stuckey argues that the City's reassignment policy as stated in the employee handbook is discriminatory. ( Id. ¶ 5.) While Stuckey inappropriately relies on only the first portion of the sentence contained in the policy language, an examination of the full text reveals that the remainder of the sentence belies such an argument. Finally, the two remaining continuing violation theories are inapplicable because: (1) Stuckey has not alleged that it was difficult to determine the actual date of the City's allegedly discriminatory acts occurring outside of the 300-day window and instead has pinpointed the exact dates on which he was harmed; and (2) the City's alleged failures to accommodate should have alerted Stuckey such that it would not have been unreasonable to require him to sue separately for defendant's conduct. See Jones v. Merchants Nat'l Bank Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994) (stating court will not find continuing violation "if the plaintiff knew, or with the exercise of reasonable care would have known after each act that it was discriminatory and had harmed h[im]"). Therefore, because none of the continuing violation theories applies, Stuckey is time-barred from basing his ADA claim on the City's conduct occurring prior to January 16, 1996.
The City's Employee Handbook provides in pertinent part: "The City will not reassign employees who are incapable of substantially performing a job assignment in the job classification to which the employee is assigned to any other duties; i.e., the City will not create or assign employees to light duty positions or assign an employee to a position or job assignment beyond the normal and budgeted positions in the department." (P1.'s 12(N) ¶ 5, Ex. D at 33.) (emphasis added). The latter portion of this statement is pivotal because ADA does not require an employer to "create new full-time positions to accommodate its disabled employees." Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 680 (7th Cir. 1998).
II. ADA Claims
The ADA prohibits any covered employer from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112 (a). Even if Stuckey could establish his back impairment that restricted his ability to perform at the heavy physical demand level is a "disability" as defined under the ADA, an issue which the Court does not reach today, Stuckey's ADA claim must fail because he is not a "qualified individual with a disability."
A "qualified individual with a disability" is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position." 42 U.S.C. § 12111 (8). "Under the ADA, the employer avoids all liability if the plaintiff would have been fired because incapable of performing the essential functions of the job, and the burden of proof on the issue of capability is not on the employer but on the plaintiff." Miller v. Illinois Dep't of Corrections, 107 F.3d 483, 484 (7th Cir. 1997) ("[Defendant] may have fired [plaintiff] for an improper purpose, but if she can't perform the essential functions of her job, so that she would have been fired anyway, there has been no violation of the Act and she has no right to relief.")
The undisputed facts in the record establish that Stuckey is not a "qualified individual with a disability." First, Stuckey's physician, Dr. Heim stated that Stuckey was totally disabled between the dates of October 31, 1995 and April 26, 1996. (Def.'s 12(M) ¶ 80.) Second, as of May 22, 1996, Stuckey could not perform the essential functions of his jailer position. ( Id. ¶ 9; P1.'s 12(N) ¶ 24.) Moreover, in a letter dated July 1, 1996, the City told Stuckey that if he did not report to work on July 7, 1996, he would be terminated. (Def.'s 12(M) ¶ 44.) Thus, the record clearly shows that his attendance on that date was an essential job function. See Waggoner v. Olin Corp., 169 F.3d 481, 483 (7th Cir. 1999) ("[A]n employee who does not come to work cannot perform the essential functions of his job."). Stuckey admits in his letter to the City that he was "unable to report for work on July 7, 1996." ( Id. ¶ 45.) The Court thus finds that Stuckey was unable to perform the essential functions of the position of jailer.
Both parties agree that an essential function of the position of jailer is the ability to subdue resisting individuals, an activity which is categorized at the heavy physical demand level. (Def.'s 12(M) ¶¶ 9, 37, Ex. J. at 2; P1.'s 12(N) ¶¶ 23-24.) It is also undisputed that Stuckey was unable to perform at the heavy physical demand level and his work release was restricted to the medium-heavy physical demand level. (P1.'s 12(N) ¶¶ 24-26.)
Next, the Court determines whether Stuckey should have offered him an accommodation. Because, Stuckey was totally disabled between October 31, 1995 and April 25, 1996, there was no accommodation that the City could have offered that would have enabled him to work during that period of time. Thus, the Court must determine whether the City should have offered him an accommodation during the period of time when he no longer was totally disabled, which at the earliest would have been April 26, 1996.
The Seventh Circuit has stated that "if the employee requests accommodation the employer must make a reasonable effort to explore the possibilities." Miller, 107 F.3d at 486; see Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co. ___ F.3d ___, No. 98-3726, 2000 WL 12860, at *4 (7th Cir. Jan. 7, 2000). The exception to this general rule applies where "the nature of the disability is such as to impair the employee's ability to communicate his or her needs." Miller, 107 F.3d at 486. In such a case, the employer "has to make a reasonable effort to understand what those needs are even if they are not clearly communicated to him." Id.
In this case, during the relevant time period, Stuckey simply did not communicate to the City that he wanted an accommodation. Nor did he request additional leave time that he had available to him. In his letter in response to the City's letter informing him that he would be terminated if he did not report to work, Stuckey stated:
At this juncture, again due to timing and other factors, I will be unable to report for work on July 7, 1996. Because you have stated that this will result in termination, I can only respond by saying that "you will have to do what is right, just as I must do what is right for me."
I ask only one favor. Because there are several categories of remunerations due (Worker's Compensation, sick pay and the vacation pay mentioned in your letter dated June 7, 1996), that such payments be made available as soon as possible.
(Def.'s 12(M) ¶ 45, Ex. B.) Further, although Stuckey states that Dr. Heim "advised the City that Stuckey was available for office type work on or after November 15, 1995," the Court finds this statement is unsupported by the record. ( Compare P1.'s 12 (N) ¶ 21, with id., Heim Dep. Ex. 4.) In his letter of October 31, 1995, Dr. Heim merely opined that "I anticipate approximately six weeks postoperatively he would be able to participate in an office type environment." ( Id., Heim Dep. Ex. 4.) Further, as discussed above, it appears that Dr. Heim's prediction was overly rosy because he later stated Stuckey was "totally disabled" and "not able to work in any ongoing capacity" from the day of his surgery on October 30, 1996, and April 26, 1996. (Def.'s 12(M) ¶ 80, Heim Dep. at 21.)
That having been said, Stuckey, in essence, argues that the initial onus was on the City to suggest an accommodation. However, as discussed above, the law of this circuit dictates otherwise. Because Stuckey has failed to establish that he was entitled to ADA protection, the Court need not reach the issue of whether the City's reason for discharging him was valid. Therefore, the Court grants the defendant's motion for summary judgment as to Stuckey's ADA claims.
III. ADEA Claims
The ADEA provides that "[i]t shall be unlawful for an employer . . ., to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623 (a)(1). "To succeed in an ADEA claim, a plaintiff must establish that he would not have been terminated `but for' his employer's intentional age-based discrimination." Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 571 (7th Cir. 1998). An ADEA plaintiff may establish age discrimination either by "presenting direct or circumstantial evidence that age was the determining factor in her discharge" or by employing "the indirect, burden-shifting method of proof for Title VII cases originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988).
Stuckey has opted to take the McDonnell Douglas route. To establish a prima facie ADEA claim under McDonnell Douglas, a plaintiff "must show that (1) he was more than forty years old; (2) he performed his job satisfactorily; (3) he suffered a materially adverse employment action; and (4) younger employees were treated more favorably." Halloway v. Milwaukee County, 180 F.3d 820, 825-26 (7th Cir. 1999).
Stuckey has established the first and third elements of the prima facie case. The undisputed facts show that Stuckey was fifty years old when the City hired him in April 1992 and that he was discharged instead of being reassigned. (Def.'s 12(M) ¶¶ 7, 14, 44, 47.)
However, Stuckey has failed to establish the second or fourth element. Stuckey was not performing his job satisfactorily. Again, it is undisputed that (1) Stuckey could not subdue resisting individuals, an activity which was required for the position of jailer, and (2) that he failed to report to work even after the City told him that failure to do so would be cause for discharge. (Def.'s 12(M) ¶¶ 44-45; P1.'s 12(N) ¶¶ 24-26.) Further, Stuckey has failed to establish that Debbie Staffeldt is a similarly situated individual. Staffeldt, who is under the age of forty, was a meter reader in the City's Public Utilities Department when she fell at work and injured her knee. (P1.'s 12 (N) ¶¶ 41-43.) Besides the fact that Staffeldt worked in a completely different department and held a position that had dissimilar duties and requirements, there are other compelling reasons for finding that Staffeldt was not similarly situated. Unlike Staffeldt, who was still able to perform the duties of a meter reader, albeit for shorter periods at a time, Stuckey was not. ( Compare P1.'s 12(N) ¶ 44, with id. ¶ 24.) Unlike Staffeldt, who continued to report for work, Stuckey failed to report to work even when told to do so to remain employed by the City. ( Compare id. ¶ 45, with Def.'s 12(M) ¶ 44-45.) Although the record shows that Staffeldt took the initiative to apply for a less demanding position, see P1.'s 12(N) ¶ 45, the parties' statements of fact are devoid of any evidence that Staffeldt applied and interviewed for other jobs. Thus, because Staffeldt has failed to establish a prima facie case of age discrimination, his ADEA claim must fail.
CONCLUSION
For the foregoing reasons, the Court grants defendant's motion for summary judgment and terminates this case. This is a final and appealable order.
SO ORDERED