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BEST v. SHELL OIL CO.

December 15, 1995

GALE Q. BEST, JR., Plaintiff,
v.
SHELL OIL COMPANY, Defendant.



The opinion of the court was delivered by: BOBRICK

 Before the court is the motion of defendant Shell Oil Company ("Shell") for summary judgment on the complaint of plaintiff Gail Q. Best, Jr.

 I. BACKGROUND

 Plaintiff filed this lawsuit alleging that Shell, his former employer, violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., by not allowing him to return to work after he injured his knee. Plaintiff drove a gasoline delivery truck for Shell and, while on the job in October of 1991, suffered a lateral cartilage tear. As a result, plaintiff had difficulty operating the clutch of the gasoline delivery trucks. Plaintiff, Shell, and various physicians went back and forth for about two years over plaintiff's capacity to do his job, culminating in Shell's decision to place plaintiff on an unpaid leave of absence. Plaintiff rejected this option and resigned from Shell on November 3, 1993. Shell now moves for summary judgment, arguing that plaintiff does not meet the ADA's definition of an "individual with a disability" and, therefore, cannot maintain a claim under the ADA. 42 U.S.C. § 12112(2).

 A. Facts

 We begin with a brief review of Local Rule 12's provisions regarding summary judgment. Under Local Rule 12, a party moving for summary judgment must file a:

 
statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law . . . The statement . . . shall consist of short numbered paragraphs, including with each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forward in the paragraph. Failure to submit such a statement constitutes grounds for denial of the motion.

 Local Rule 12(m)(3). The party opposing the motion must then file:

 
a concise response to the movant's statement that shall contain:
 
(b) a statement consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon. 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.

 Local Rule 12(n)(3) (emphasis added). The district court, with the approval of the Seventh Circuit, has long enforced the requirements of these rules. Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-922 (7th Cir. 1994) (collected cases). Here, Shell has complied with the rule, but plaintiff has failed not only to file a Rule 12(n) statement, but any response whatsoever to Shell's motion. *fn1" Accordingly, Shell's statement of facts is deemed admitted.

 Plaintiff began working for Shell as a truck driver delivering gasoline in May of 1986. The job required him to work 10 1/2 hours per day, four days per week, and make four to six deliveries per day. Normally, plaintiff, like all Shell drivers, was assigned to a specific truck. There were occasions, however, when a driver's truck would be out of service and the driver would be assigned to a different vehicle.

 As noted above, plaintiff injured his knee while working on October 20, 1991. After the injury, he had difficulty operating the clutch of his gasoline truck, experiencing pain when doing so. He could, however, drive his pick-up truck, which had an automatic transmission. Immediately after his injury, plaintiff did paper work in the office. From November 5 to November 14, plaintiff drove a gasoline delivery truck, but ...


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