alternative work duties on a full-time basis in the future.
On October 20, 1992, plaintiff underwent a driving safety evaluation; the evaluator felt he should no longer be driving. Plaintiff made his last gasoline delivery for Shell the next day. On November 16, 1992, the plant manager met with plaintiff, relayed Dr. Levin's comments, and told plaintiff he was being placed on long-term disability leave. While plaintiff was on leave, Shell was unable to find a non-driving job for him. By February of 1993, however, plaintiff was able to play basketball and he felt he was fully recovered by April of 1993. In August and September of 1993, plaintiff drove gasoline delivery trucks for another company and had no problems with his knee. In November of 1993, Shell informed plaintiff that his leave of absence would begin to be without pay and, as a result, plaintiff resigned from Shell. Thereafter, plaintiff began driving a chemical delivery truck and a GMC truck; again, without consequence to his knee.
B. Shell's Instant Motion
The present posture of this case is somewhat troubling. The instant motion is the second motion for summary judgment on plaintiff's ADA claim that Shell has submitted; both have focused on the issue of whether plaintiff met the ADA's definition of an "individual with a disability." 42 U.S.C. § 12102(2). The initial motion was denied by Judge Holderman on May 26, 1995. Best v. Shell Oil Company, 1995 U.S. Dist. LEXIS 7452, 93 C 6653 (N.D.Ill. May 26, 1995) (Holderman, J.) ("Best I"). Judge Holderman found, based on the record, that there was a question of fact as to whether plaintiff was an individual with a disability as defined by the ADA. Shell fails to address this previous ruling, aside from contending that it was at odds with established caselaw. If that was the case, Shell should have taken the appropriate measures, such as a motion under Fed.R.Civ.P. 60(b). As it stands, Judge Holderman's ruling has become the law of the case, a concept that Shell does not touch on in its motion. The doctrine of law of the case establishes a presumption that a ruling made at one stage of a proceeding will be adhered to throughout the proceeding. Avitia v. Metropolitan Club of Chicago, 49 F.3d 1219, 1227 (7th Cir. 1995). Because the ruling was by this court, as opposed to the appellate court, we may examine it to determine whether it was wrong and rescind it if doing so would not cause undue harm to the party that benefited from it: the plaintiff. Id. Prior to the plaintiff's departure from these proceedings, see fn. 1, supra, the parties met with the court to discuss this case and Shell's filing of an additional motion for summary judgment that would, effectively, seek a reversal of Judge Holderman's ruling. Indeed, the plaintiff even expressed an interest, at one point, in filing his own cross motion for summary judgment. As it happened, however, plaintiff ultimately had no interest in even responding to defendant's motion. While plaintiff would be harmed by a change of Judge Holderman's ruling, it would not be undue harm. Plaintiff has been given every opportunity to demonstrate otherwise, but has chosen not to do so. Accordingly, we will proceed with an analysis of Shell's instant motion for summary judgment. Id. at 1228 (party opposing re-examination of previous ruling must prove undue harm).
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and the 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 judgment as a matter of law." In ruling on a motion for summary judgment, the court does not evaluate the weight of the evidence to determine the truth of a matter, but instead determines whether there is a genuine issue of triable fact as to the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The party moving for summary judgment has the burden of demonstrating that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). If there is a doubt as to the existence of a material fact, that doubt must be resolved in favor of the nonmoving party and summary judgment should be denied. Doe v. R. R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). Conversely, summary judgment must be entered against a party who fails to show that the existence of an element essential to that party's case, and on which it will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S. Ct. at 2552. Here, the question is whether plaintiff has made out a prima facie case under the ADA.
Under the ADA, the plaintiff must meet the threshold burden of establishing that he is a "disabled individual." Roth v. Lutheran General Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995). An individual is disabled if he has: (1) a physical or mental impairment which substantially limits one or more of the major life activities; (2) a record of such an impairment; or (3) if he is regarded as having such an impairment. 42 U.S.C. § 12102(2); Roth, 57 F.3d at 1454. Major life activities are defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1613.702(c); Roth, 57 F.3d at 1454. Not every impairment that affects an individual's major life activities is a substantially limiting impairment; the impairment must significantly restrict the extent to which the individual can perform a major life activity. Roth, 57 F.3d at 1454.
The major life activity at issue here is working. (See Best I, at 6). It is important to remember that "working" under the ADA does not mean working at a particular job for a particular employer or a narrow range of jobs. Roth, 57 F.3d at 1454-55. When this consideration is applied to the question of whether plaintiff has met his burden of showing that he meets the first definition of disabled under the ADA--that he has a substantially limiting impairment--we must find that he has not. The record shows that plaintiff was unable to drive a certain kind of truck at Shell. He could drive another type of truck at Shell, but the nature of Shell's business was such that that vehicle was not always available. Plaintiff could also drive trucks, including gasoline delivery trucks, at three other companies. All the record shows is that plaintiff could not drive the Peterbilt truck at Shell. As such, the record supports only a finding that plaintiff could not perform a particular job for a particular employer. This does not meet plaintiff's burden of establishing that he has a substantially limiting impairment.
There are two remaining avenues by which plaintiff can establish a prima facie case: he can show that he has a record of a substantially limiting impairment or that Shell regarded him as having such an impairment. Here, the evidence is more convincing. As for a record of such an impairment, Dr. Levin stated that plaintiff could not perform "truck driving duties." As for the manner in which Shell regarded plaintiff's limitations, Shell is on record as saying that it placed plaintiff on long-term disability because he was "not capable of performing the essential functions of a truck driver." Best I, at 7. Both pieces of evidence speak, not in the particular terms of driving a Peterbilt truck for Shell, but in the general terms of driving any type of truck. This was sufficient for Judge Holderman's ruling in Best I, but we must part company with that decision because we find that, even with such evidence, plaintiff has still failed to meet his burden of establishing a prima facie case.
Even though the record shows that plaintiff does not actually suffer from an impairment that substantially limits his ability to work, he may still succeed in establishing a prima facie case if he show that he has a history of or has been misclassified as having such an impairment or that he was treated as having such an impairment by his employer. 29 C.F.R. § 1630.2(k);(l). Under the ADA and its accompanying regulations, there are specific considerations applicable to the determination of whether an impairment substantially limits the major life activity of working. 29 C.F.R. § 1630.2(j)(3). An individual must demonstrate a significant restriction "in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities." 29 C.F.R. § 1630.2(j)(3)(i). Thus, the issue here becomes whether Dr. Levin's and Shell's perhaps injudicious use of the general term "truck driver" disqualified plaintiff from a class of jobs as contemplated by the ADA and regulations. The regulations provided guidance as to whether an impairment substantially limits an individual's ability to perform a "class of jobs" by setting out the following applicable considerations:
(A) The geographical area to which the individual has reasonable access;
(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or