Opinion
Case No. 98 C 4848
June 2, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Mykola Hawrych has brought suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., alleging that his former employer, Custom Plastics, Inc., discriminated against him because of a knee injury he suffered on the job. Because the court finds that Hawrych has failed to establish that he was disabled for purposes of the ADA, defendant's motion for summary judgment is granted.
Background
Hawrych worked as a maintenance mechanic for defendant, helping maintain equipment used to manufacture plastic parts. On September 26, 1994, Hawrych injured his knee by bumping it on the metal frame of a doorway at work. After being referred to a physician by defendant, Hawrych continued to perform his work duties for several months. The orthopedic surgeon consulted by Hawrych, Dr. Robert Walsh, prescribed physical therapy from November 1994 through February 1995, then performed arthroscopic surgery on Hawrych on February 8, 1995. On May 8, 1995, Hawrych was allowed by Dr. Walsh to return to work under certain medical restrictions.
A few months after his surgery, in addition to his eight-hour work shift, Hawrych engaged in a "work hardening" program at a rehabilitation center for three hours each day, five days per week. Defendant paid for this rehabilitation, but still required Hawrych to work full time while attending his physical therapy sessions. Dr. Walsh believed that this schedule was too much for Hawrych's knee. After several weeks, defendant's workers compensation adjuster, Gallagher Bassett Services, decided that it would not pay for work hardening. Apparently in response, Dr. Walsh restricted Hawryeh from working at all, asserting that without a work hardening program, Hawrych would become permanently disabled. On July 18, 1995, Hawrych stopped reporting to work.
Under a traditional "work hardening" program, the employee goes back to work part time and gradually works up to being able to do his original job.
The court is unable to discern from the parties' submissions whether the workers compensation adjuster's refusal to pay stemmed from Dr. Walsh's objection to Hawrych's full-time work schedule, or whether it was made independently. In any event, the sequence — or causal relation, if any — of these events is irrelevant to the disposition of defendant's motion.
Defendant has a work rule providing that unauthorized absenteeism of three days or more will be considered a voluntary resignation from the company. On September 5, 1995, Gallagher Bassett Services sent a letter to Hawrych and his attorney instructing Hawrych to return to work immediately. After discussing the letter with his attorney, Hawrych decided to stay home.
In October 1995, Gallagher Bassett Services videotaped Hawrych walking without a limp, repeatedly getting in and out of a car easily, and generally functioning with no apparent impairment. On November 21, 1995, Dr. Walsh decided — after discussing the matter with Hawrych — that Hawrych could return to work with no restrictions. When Hawrych reported for work, he was informed that he had been terminated for failing to return to work in September.
As discussed below, Hawrych was also videotaped two years later — on September 27, 1997 — working without impairment for a heating and air-conditioning contractor.
Hawrych filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on July 23, 1996. On November 29, 1996, the EEOC dismissed the charge and issued a right-to-sue letter. After receiving additional information from Hawrych, the EEOC reopened his charge on February 27, 1997. The EEOC dismissed Hawrych's charge again on July 31, 1998. Hawrych filed this lawsuit on August 5, 1998, alleging that he was discharged because of his disability, in violation of the ADA. Specifically, Hawrych alleges that defendant "terminated" his "employment and insurance due to injury sustained on the job which disabled plaintiff" (Compl. ¶ 12)
Analysis
Summary judgment is proper where "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." FED. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986).
The ADA prohibits employers from discriminating against a qualified individual with a disability because of that disability. See 42 U.S.C. § 12112 (a). To survive a summary judgment motion, Hawrych must first establish that he is a qualified individual with a disability under the statute. Harrington v. Rice Lake Weighing Systems, Inc., 122 F.3d 456, 459 (7th Cir. 1997). The ADA defines "disability" in three ways:
(1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(2) a record of such an impairment; or
(3) being regarded as having such an impairment.
While Hawrych has not expressly identified the definition governing his claim, the court believes that the first definition is the only one potentially applicable. Accordingly, the court's analysis will be limited to determining whether Hawrych's knee injury is a physical impairment that substantially limits one of his major life activities.
The record contains no indication that Hawrych's knee injury was regarded by defendant as a disability. On the contrary, the evidence suggests that defendant was skeptical that Hawrych's injury warranted the amount of rehabilitation recommended by Dr. Walsh, and demanded that Hawrych work a normal eight-hour shift.
An impairment is any physiological disorder, condition, cosmetic disfigurement, or anatomical loss affecting one of the body's systems, or any mental or psychological disorder. See 29 C.F.R. § 1630.2 (h). Major life activities are basic functions such as breathing, hearing, seeing, speaking, walking, working, performing manual tasks and learning. See id. § 1630.2(i). The impairment "substantially limits" a major life activity if the person is "[u]nable to perform a major life activity that the average person in the general population can perform," or is "[s]ignificantly restricted as to the condition, manner or duration under which [the] individual can perform a major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." Id. § 1630.2(j)(1). In determining if an impairment is substantially limiting, the court should consider:
(1) The nature and severity of the impairment;
(2) The duration or expected duration of the impairment; and
(3) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.Id. § 1630.2(j)(2).
As the Seventh Circuit has recognized, "The ADA protects an important, but finite, universe of people." Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999). The ADA does not protect employees "from being fired because of illness," nor does it protect employees "who are unable to perform only a narrow range of jobs." Id. Further, for purposes of the ADA, "[d]isability does not include temporary medical conditions." Id.; see also Talanda v. KFC Nat'l Mgmt Co., No. 94 C 1668, 1997 WL 160695, at *2 (N.D.Ill. Apr. 2, 1997) (observing that "temporary injuries . . . generally are not considered disabilities under the ADA, particularly when those injuries . . . are readily correctable"), aff'd, 140 F.3d 1090 (7th Cir.), cert. denied, 525 U.S. 869 (1998); Blue v. R.R. Donnelley Sons, Inc., No. 95 C 5489, 1996 WL 613161, at *2 (N.D.Ill. Oct. 22, 1996) (concluding that "the undisputed facts show that plaintiff's back injury constituted a temporary and transitory physical impairment which is not covered by the ADA"), rev'd on other grounds, 114 F.3d 1191 (7th Cir. 1997); Harris v. United Air Lines, Inc., 956 F. Supp. 768, 773 (N.D.Ill. 1996) ("The injury to Harris' knee may be considered a temporary impairment that is not a disability under the ADA.").
Hawrych has offered no evidence to suggest that his knee injury was permanent. Indeed, even his arguments fail to suggest any sort of permanent disability, as he contends that "Custom Plastics violated plaintiff's rights as an employee who was hurt on the job and needed medical treatment." (Pl.'s Resp. at 11) Further, nothing in the medical records submitted by either party — including the progress notes of Hawrych's physician, Dr. Walsh — suggests a permanent disability. At his first examination of Hawrych, Dr. Walsh's diagnosis was "contusion right knee," and he recommended physical therapy. (Exh. 2 to Pl.'s Resp. at 1) At their next meeting, Dr. Walsh noted Hawrych's improvement, but in light of the continuing pain, stated that "we need to get an MRI to rule out the possibility of an occult fracture." ( Id.) When the MRI showed no fracture, and Hawrych reached a "plateau" in physical therapy, Dr. Walsh performed surgery. ( Id. at 2) Hawrych made "slow steady progress" in post-operative therapy, but Dr. Walsh noted that he still needed "to work intensively on muscle rehabilitation." ( Id. at 3)
The court notes that defendant provided Hawrych — who is proceeding pro se in this case — with a copy of Rule 56 with its summary judgment motion and informed him "that any fact asserted in the affidavits submitted in support of the Motion for Summary Judgment must be taken as true by the Court unless you contradict them with counter-affidavits or other documentary evidence." (Exh. 1 to Def.'s Opp. to Pl.'s Mtn. to Amend) This was sufficient notice to Hawrych of his Rule 56 obligations. See Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992) (holding that "all pro se litigants . . . are entitled to notice of the consequences of failing to respond to a summary judgment motion"). Hawrych did submit evidence with his summary judgment response; indeed, the court's analysis is based, to a large extent, on that evidence.
The court's analysis focuses on Dr. Walsh's progress notes because they are more favorable to Hawrych. Dr. Kornblatt — the orthopedic surgeon whom defendant arranged for Hawrych to see — found after the surgery that Hawrych exaggerated his symptoms, and that there was significant psychological overlay delaying his rehabilitation. Dr. Kornblatt disagreed with the need for a work hardening program.
On April 4, 1995, nearly two months after surgery, Dr. Walsh noted that Hawrych was not improving and "seems to have reached a plateau as far as his knee is concerned." ( Id. at 4) Dr. Walsh referred him to another physician, Dr. David flora, and stated that they would "need to make a determination as to whether or not further cortisone injection is indicated or whether he may or may not have permanent disability." ( Id.) Dr. flora recommended that Hawrych "work on his quads and hamstrings." ( Id.)
On May 2, 1995, Dr. Walsh authorized Hawrych to return to work on May 8 "at sedentary type work only with no lifting or carrying over 10 lbs.," and "[n]o squatting, standing, climbing or extensive walking and must wear a brace on his right knee." ( Id. at 5) Further, Dr. Walsh recommended that Hawrych continue physical therapy three times per week. On May 16, Dr. Walsh noted that Hawrych was experiencing some pain at work, but stated that "this will eventually work itself out." ( Id.) On June 6, Dr. Walsh maintained the same restrictions, except that he cut down the physical therapy requirements to twice per week.
On June 27, 1995, Dr. Walsh found that Hawrych "is getting some improvement with the therapy," but that "he would benefit more from a work hardening program." ( Id. at 6) The previous restrictions were continued for Hawrych at work. Several weeks later, on July 18, Dr. Walsh noted that Hawrych had been attending work hardening, but that the program "is getting a little in the way of cooperation either from the patient's employer or from the insurance company," and that Hawrych "is being made to work 8 hours a day in addition to getting 2 hours of work hardening." ( Id.) Because "this is way too much for his knee to be able to endure," Dr. Walsh recommended that Hawrych "not return to work until he gets work hardening and if he cannot get the work hardening then he will be permanently disabled and we will have to establish a permanent disability percentage for which he will have to be adequately compensated." ( Id.)
As it turns out, Hawrych did not participate in the recommended work hardening program because the workers compensation adjuster would not pay for it. Dr. Walsh continued to observe that Hawrych was experiencing pain, but noted that he had "no idea what is causing his continued pain." ( Id. at 9) Hawrych eventually consulted another physician, Dr. Gordon Nuber, who could not identify any problems with the knee aside from the pain felt by Hawrych. Dr. Nuber offered the option of another arthroscopic surgery to see if there was previously undetected damage. On November 21, 1995, Hawrych told Dr. Walsh that "maybe he would try going back to work next week." ( Id. at 10) Dr. Walsh gave Hawrych a note stating that he could return to his normal duties with no restrictions.
Despite Dr. Walsh's fear that Hawrych's injured knee would become a permanent disability without his participation in a work hardening program, such did not turn out to be the case. There is no indication that his knee worsened, or that the nature of the injury changed without work hardening. More importantly, four months after Dr. Walsh expressed his fear, he cleared Hawrych to work without restriction even though Hawrych never participated in the recommended work hardening.
The mere fact that Hawrych's physician feared that the injury could, absent a work hardening program, become permanent does not transform the injury into a disability for purposes of the ADA, In Kelly v. Woodridge Park Dist., No. 97 C 5763, 1999 WL 203020, at *3 (N.D.Ill. Mar. 31, 1999), the court rejected the plaintiff's argument that his knee injury amounted to a disability because it could only be corrected by successful surgery. The court reasoned that "[t]he fact that only `successful' surgery would correct plaintiff's knee problem does not make the injury any more permanent or chronic" because "[i]n all cases, the temporary nature of an injury may depend on successful treatment." Id. at *4 In this regard, even though "a broken leg that is set improperly may result in less than full recovery," a broken leg is not a disability for purposes of the ADA. Id.
Viewing the evidence in the light most favorable to Hawrych, as the court must, Hawrych suffered a knee injury, underwent surgery, and was medically restricted from performing certain types of work at his job for several months. Within fourteen months of the initial injury, however, Hawrych was cleared to work without restrictions. This chronology suggests that Hawrych suffered from a temporary injury, not a disability.
Further, Hawrych has not shown that the injury substantially limited his ability to work. He must do more than simply allege that he worked under medical restrictions, for "the mere fact that an impairment affects the ability to work is not necessarily sufficient to show disability." Duffin v. Federal Express Corp., No. 95 C 3723, 1997 WL 208428, at *3 (N.D.Ill. Apr. 22, 1997) (finding that plaintiff's lifting restriction did not amount to a disability). There is no evidence that defendant found his job performance unsatisfactory while he was performing under the restrictions recommended by Dr. Walsh, and Hawrych has not alleged that the restrictions prevented him from performing the essential duties of his job. "An inability to do minor aspects of the job while performing one's duties in general does not amount to a substantial limitation on the activity of working." Harrington, 122 F.3d at 460. Defendant's decision to terminate his employment was based on his failure to show up for work for several months, not from his inability to perform his job. The fact that Hawrych's decision not to work was related to the injury does not mean that the injury substantially limited his ability to work.
This conclusion is also supported by Hawrych's ability to procure other employment, as evidenced by a September 1997 videotape of him working for a heating and air-conditioning contractor. Hawrych argues that the tape "is not appropriate or material to this case" because it was made after he underwent a second knee operation, and because he was wearing a knee brace and taking medication at the time. (Pl.'s Resp. at 11) However, "the mere use of a mitigating measure does not automatically prove the presence of a disability; some individuals may use medication, prosthetic devices, or auxiliary aids to alleviate impairments that are not substantially limiting." Roth v. Lutheran General Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995).
Judging by his success in procuring employment with the heating and air-conditioning contractor, Hawrych was not precluded from other work. In any event, Hawrych has made no showing that he was unable to find other, similar work. Under these circumstances, the court cannot find that his ability to work was substantially limited by his knee injury. See Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir. 1992) ("It is well established that an inability to perform a particular job for a particular employer is not sufficient to establish a handicap; the impairment must substantially limit employment generally.").
Because Hawrych has not alleged that his knee injury substantially limited him in a major life activity other than work, his failure to establish that he was so limited in his ability to work is dispositive of his claim. Coupled with the temporary nature of his knee injury, Hawrych's apparent ability to perform his job — albeit under certain medical restrictions — precludes a finding that he was disabled for purposes of the ADA because he was not substantially limited in any major life activity. See Blue, 1996 WL 613161, at *3 (concluding that plaintiff was not "substantially limited" in his ability to work where injury "had a limited duration of approximately two years, it did not prevent him from engaging in other types of work, and appears to have had no permanent effect on plaintiff").
Essentially, Hawrych's claim is that his employer's workers compensation adjuster wrongfully refused to pay for his physician-recommended work hardening program. He has not established a claim for disability-based discrimination. However wrongful the refusal to pay for work hardening may have been, it does not give rise to a cause of action under the ADA against defendant.
Conclusion
For the reasons set forth above, defendant's motion for summary judgment is granted. Because the above analysis is dispositive of Hawrych's claim, the court does not address the other arguments raised in defendant's motion. Because Hawrych's motion to amend his summary judgment response brief does not raise any new matters that would alter the above analysis — and because there is no basis under the Federal Rules of Civil Procedure for granting the motion to amend — the court denies it.
In the motion to amend, the strongest argument raised by Hawrych is that the Illinois Industrial Commission's finding that he was disabled for purposes of the Illinois Workers' Compensation Act is evidence that he was disabled for purposes of the ADA. However, the "findings of the Illinois Industrial Commission regarding [the plaintiff's] injury are irrelevant because the ADA's definition of disability is unique." Baker v. Chicago Park Dist., No. 98 C 4613, 1999 WL 519064, at *4 n. 3 (N.D.Ill. Jul. 15, 1999).