The opinion of the court was delivered by: WILLIAMS
On March 6, 1996, Plaintiff Russell Harris ("Harris") filed a three-count amended complaint against Defendant United Air Lines, Inc. ("United"), alleging discrimination on the basis of gender in violation of Title VII, discrimination on the basis of disability in violation of the Americans with Disabilities Act ("ADA"), and retaliatory discharge. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, United moves this court for summary judgment on all three counts of the complaint. For the reasons set forth below, the court grants United's motion for summary judgment on all counts.
Harris was hired by United on July 3, 1985, as a ramp serviceman. (Harris Dep. at 12). Harris' primary responsibilities included manually loading and unloading baggage, mail, and freight from the cargo holds of airplanes. (Harris Dep. at 13, 167-69). Harris performed these tasks while kneeling. (Harris Dep. at 168-69). On October 3, 1994, Harris reported a knee injury to United. (Harris Dep. at 95). A physician from United's medical department examined Harris on October 3, 1994, and placed him on temporary light-duty status. (Harris Dep. at 95-96). A few weeks after his injury, Harris' own physician examined him and placed further work restrictions
on him effective October 18, 1994. (Harris Dep. 170-72; Harris Dep. Ex. 19). As a result, Harris was assigned to temporary light duty work consistent with his restrictions. (Harris Dep. at 178-79). However, the only work that Harris could perform without discomfort after his injury was not permanently available within United. (Harris Dep. at 187-89, 222-23).
United utilizes a progressive discipline system. (Harris Dep. Ex. 2 at 121). Employees who are excessively absent or tardy are first counseled and then disciplined for failure to maintain a satisfactory dependability record. (Schneider Aff. at P 4). An employee generally receives a level one disciplinary warning for his first incident and then graduates to higher levels if the conduct continues, until termination at level five. (Schneider Aff. at P 5). Because of the severity of discipline at levels four and five, United conducts investigative review hearings before imposing discipline. (Harris Dep. Ex. 2 at 51; Schneider Aff. at P 6). At these hearings, employees are represented by the union and have the opportunity to challenge the discipline United seeks to impose. (Harris Dep. Ex. 2 at 51; Schneider Aff. at P 6).
Harris was first verbally counseled for his unsatisfactory dependability record in November 1987. (Harris Dep. Ex. 1; Harris Dep. at 26). Between 1988 and April 1994, United disciplined Harris on six separate occasions for his lack of dependability. (Harris Dep. Exs. 3-11; Harris Dep. at 27-28, 30, 33, 35, 38-39, 48, 50). After United issued Harris a level five discipline, it held an investigatory hearing at which United issued Harris a written warning and offered him one final chance to improve his dependability record and retain his job. (Harris Dep. Ex. 11; Harris Dep. at 59-61).
After the warning, Harris understood that he would be discharged if he failed to improve his dependability record. (Harris Dep. at 61, 198). On November 16, 1994, United terminated Harris because he incurred two unauthorized absences during the six months following the final warning. (Harris Dep. Ex. 14; Harris Dep. at 84-85). After reviewing Harris' case, the union decided not to pursue further action on behalf of Harris. (Harris Dep. Ex. 15; Harris Dep. at 88-89).
On August 25, 1995, Harris filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging disability discrimination and retaliatory discharge for filing a workers' compensation claim. (Harris Dep. Ex. 18; Harris Dep. at 130-31). In relevant part, the charge alleges: "My supervisors discriminated against me because of my disability, caused by a job-accident, for which I am getting workers [sic] compensation. Also, they retaliated against me both because of my job-injury and because my wife also works for United and has a reported injury." (Harris Dep. Ex. 18). However, Harris failed to mark the box on the EEOC charge alleging sex as a cause of discrimination. (Harris Dep. Ex. 18; Harris Dep. at 131).
On March 6, 1996, Harris filed a three-count amended complaint against United alleging discrimination on the basis of gender in violation of Title VII, discrimination on the basis of disability in violation of the Americans with Disabilities Act ("ADA"), and retaliatory discharge.
The court must decide whether Harris has set forth sufficient facts demonstrating that a genuine issue of material fact exists for trial. Federal Rule of Civil Procedure 56 states that summary judgment is proper if the record discloses 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. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., Ltd v. Zenith Radio, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)). A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In addition, "motions for summary judgment in discrimination cases must be decided with particular care, given the extent to which the merits often turn on questions of credibility and intent." Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 893 (7th Cir. 1996); see also Sample v. Aldi Inc., 61 F.3d 544, 547 (7th Cir. 1995) (summary judgment standard applied with added rigor in employment discrimination cases).
The alleged existence of a material factual dispute does not defeat an otherwise properly supported motion. Anderson, 477 U.S. at 248. It follows that summary judgment is appropriate "if the evidence is merely colorable . . . or is not significantly probative . . . ." Anderson, 477 U.S. at 249-50. In other words, summary judgment is proper if the party opposing the motion fails to establish an essential element of her case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In evaluating the summary judgment motion, the court must interpret the facts in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. Furthermore, the summary judgment inquiry as to ...