simply asserts: "Fernbach was terminated on January 18, 1995." Def.'s 12(M) P 68 (citing complaint). Whereas the defendant does not specifically identify the decisionmaker, Fernbach maintains that Dominick's Loss Prevention Investigator David Howell held two "follow-up meetings" with the plaintiff, one each on January 13 and 18. Pl.'s 12(N)(3)(b) P 14. During the meetings, the plaintiff stated that, while aware of Dominick's policy regarding the necessity of having a receipt for store merchandise, he understood that Dominick's policy only applied to "items to be consumed or removed from the store." Pl.'s 12(N)(3)(b) P 14 (emphasis in original).
At the second meeting, on January 18, Howell met with Fernbach and Santiago, who had been on vacation since January 10. Fernbach explained to Howell that the plaintiff "understood the receipt policy to mean that he could not take food or drink items into the break area, but that he did not understand that the policy prohibited him from taking other non-consumable items to his locker to be purchased before removing them from the store." Id. P 16. Notwithstanding Santiago's protests to Howell against disciplining Fernbach, Pl.'s 12(N)(3)(b) P 19, Howell's case report indicates that Fernbach was terminated, apparently on January 18, Pl.'s 12(N)(3)(b) Appdx., Ex. C at F53. Soon after the discharge, Fernbach's attorney wrote to Dominick's, unsuccessfully requesting reinstatement in light of the plaintiff's disability and other circumstances. Pl.'s 12(N)(3)(b) P 21, Appdx., Ex. C at F19-21.
Fernbach now brings this action pursuant to title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111-12117, alleging that Dominick's discriminated against him based on his mental disability. Dominick's moves for summary judgment on a number of grounds, and we now turn to those arguments.
II. Standard for Reviewing Motions for Summary Judgment
Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact, and . . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant bears the initial burden to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). Material facts are those determinative of the outcome of an issue as determined by the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Once the movant has done this, the nonmovant "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party, Anderson, 477 U.S. at 255, and refrain from making credibility determinations, Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).
Generally stated, title I of the ADA prohibits disability discrimination in employment:
No covered entity shall discriminate 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.