APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
A. SULLIVAN, JR., Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 10, 1981.
Plaintiff appeals from the grant of summary judgment to defendants in an action for damages arising out of his employment termination allegedly in violation of the Equal Opportunities for the Handicapped Act (hereafter EOHA) *fn1 (Ill. Rev. Stat. 1975, ch. 38, par. 65-21 et seq.) and article I, section 19 of the Illinois Constitution (hereafter section 19) (Ill. Const. 1970, art. I, § 19). On appeal, plaintiff contends that (1) summary judgment should have been denied because a genuine issue of fact existed as to whether he had a "physical or mental handicap" as that phrase is used in EOHA and section 19; (2) the court's construction of EOHA and section 19 denied him equal protection; and (3) the motion for summary judgment was defective in that it was combined with a motion to dismiss.
Plaintiff had been employed by defendants for a number of years, during which time he received promotions and increases in responsibility and income. *fn2 Then, in 1975, a malignant tumor was surgically removed from his colon and, when he returned to work in January 1976, he was informed that his employment was terminated as of March 1 of that year.
In his verified amended complaint asserting a wrongful discharge in violation of EOHA and section 19, plaintiff alleged that after his surgery he "reported to [d]efendants, ready to resume his duties" and at that time he "was physically handicapped in that his physiological condition limited and is regarded as limiting certain of his major life functions"; that defendants' personnel officer told him that they would not employ anyone with his "handicap" irrespective of qualifications; that he was capable of performing the employment duties required of him by defendants but was discharged because of "his physical condition and handicap." He asked for reinstatement, back pay, and other damage. Defendants' answer essentially denied those allegations.
Thereafter, the trial court granted a motion of defendants for summary judgment based on findings that there was no genuine issue as to any material fact and that a cause of action had not been stated because plaintiff's condition was not a physical handicap within the meaning of either EOHA or section 19. This appeal followed.
Summary judgment should be granted if it appears from the matter presented in support and in opposition to the motion that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1977, ch. 110, par. 57(3); Joseph W. O'Brien Co. v. Highland Lake Construction Co. (1972), 9 Ill. App.3d 408, 292 N.E.2d 205.) It is, however, a drastic means to dispose of litigation (Green v. McClelland (1973), 10 Ill. App.3d 350, 293 N.E.2d 629) which should be granted only when the right of the movant thereto is clear and free from doubt (Marshall v. City of Chicago Heights (1978), 59 Ill. App.3d 986, 376 N.E.2d 657).
It is the initial contention of plaintiff here that summary judgment was improperly granted because an issue of fact exists as to whether his physical condition at the time of his employment termination was a "physical or mental handicap" as under section 19 and EOHA. Section 19 provides: "All persons with a physical or mental handicap * * * shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer" (Ill. Const. 1970, art. I, § 19), and section 3 of the EOHA provides:
"It is an unlawful employment practice for an employer: (1) * * * to discharge * * * any individual * * * because of such individual's physical or mental handicap, unless it can be shown that the particular handicap prevents the performance of the employment involved; * * *." Ill. Rev. Stat. 1975, ch. 38, par. 65-23.
It should be noted that the only documents presented to and considered by the trial court in ruling on the motion for summary judgment were the verified amended complaint and answer thereto, defendant's memorandum in support of the motion, and plaintiff's memorandum in opposition thereto with his personal affidavit. Plaintiff's affidavit and amended complaint stated in substance that when he returned to work after his surgery for removal of a malignant tumor, he told defendants that his doctors would not consider him cured until five years had passed without a recurrence; that he was ready and capable of performing his duties, but he "was physically handicapped in that his physiological condition limited and is regarded as limiting certain of his major life functions"; and that he was discharged because of "his physical condition and handicap." In their memorandum, defendants rely solely upon Advocates for the Handicapped v. Sears, Roebuck & Co. (1978), 67 Ill. App.3d 512, 385 N.E.2d 39, cert. denied (1979), 444 U.S. 981, 62 L.Ed.2d 408, 100 S.Ct. 484, to sustain their position. In his memorandum, plaintiff cites no legal authority and argues only that Advocates is not dispositive.
• 1 In Advocates, a plaintiff (Klapacz), as a result of nephritis and a kidney transplant, was restricted from heavy lifting. He contended that "under the ordinary and popularly understood meaning of the term [physical or mental handicap], any individual is handicapped if he is prevented from fully enjoying his life because of a physical or mental condition." (67 Ill. App.3d 512, 515-16, 385 N.E.2d 39, 42.) Employment was denied because he was an uninsurable risk under defendant's program of self-insurance and, because of his ineligibility was based upon his physical condition, he argued that he was handicapped under the purview of EOHA. In support, he referred to the definition of handicap in Webster's Third New International Dictionary 1027 (1976): "* * * a disadvantage that makes achievement unusually difficult; esp: a physical disability that limits the capacity to work." The court, however, in finding that Klapacz was not handicapped within the meaning of section 19 or EOHA, stated:
"[W]e cannot accept the plaintiff's interpretation of the common meaning of the phrase `physical and mental handicap.' First, we feel that this approach would extend the proscriptions of the Act well beyond the scope intended by the legislature. Since virtually every consideration upon which an employer is likely to evaluate a prospective or current employee may be classified as either a mental or physical condition, the Act would be transformed into a universal discrimination law. Even such considerations as sex, age and race could be denominated as physical conditions and thus would be swept within the purview of the Equal Opportunities for the Handicapped Act." (67 Ill. App.3d 512, 516, 385 N.E.2d 39, 43.)
"[W]e believe that the legislature had in mind a more objective criteria for determining what physical or mental conditions constitute handicaps within the meaning of the Act than that suggested by the plaintiff. In effect, he argues that for any physical condition to reach the level of a handicap to be protected by the Act, an employer need only act upon that condition and deny the individual employment. We believe, however, that in enacting this legislation, the General Assembly had in mind a class of physical and mental conditions which are generally believed to impose ...