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DICKEY v. PEOPLES ENERGY CORP.

December 30, 1996

PHILIP DICKEY, Plaintiff,
v.
PEOPLES ENERGY CORPORATION, an Illinois corporation, a/k/a PEOPLES GAS COMPANY, Defendant.



The opinion of the court was delivered by: ANDERSEN

 This case arises from plaintiff Philip Dickey's dismissal by his employer after it found him no longer eligible to receive long term disability benefits and its subsequent conclusion that it was unable to find a job for him that he was able and qualified to perform with or without a reasonable accommodation. Mr. Dickey sues under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"). The matter is now before us on defendant's motion for summary judgment. For the reasons set forth below, we grant the motion.

 Background

 The defendant, Peoples Gas Light and Coke Company (the "Company"), *fn1" is a public utility engaged in the sale and distribution of natural gas to customers in the City of Chicago. The plaintiff, Philip Dickey, began his employment with the Company as a laborer on August 12, 1968. As a result of acute arthritis of his hands, Mr. Dickey was absent from work from September 1985 to February 1986. On February 3, 1986, his doctor released him to return to work, provided he avoid air hammering, digging, and tasks that involve gripping objects with his hands. As a result of these restrictions, Mr. Dickey was transferred to the job of yard laborer at the Company's Central District shop facility. His duties included loading meters weighing five to seven pounds into crates by hand; emptying plastic refuse bags into a dumpster by hand; operating a forklift to move various objects; sweeping the facility using both a push broom and an automatic sweeper; driving a Company vehicle to making deliveries to employees in the field; maintaining the grounds; and washing cars.

 While continuing to suffer from acute arthritis, Mr. Dickey injured his back on August 28, 1989, while lifting meters to place them in a crate. He has not returned to work since this injury. *fn2" Mr. Dickey underwent back surgery on October 10, 1989, and, on March 1, 1990, his physician advised the Company that Mr. Dickey would not be able to return to his previous level of work activity because of a high risk of re-injury if he engaged in any lifting activity.

 On April 2, 1990, Mr. Dickey advised the Company's medical director, Dr. E. Alannah Ruder, that he suffers nearly constant back pain that increases with walking up to four blocks and that he engages in no activities more strenuous than that. Mr. Dickey's physician also advised Dr. Ruder at about this time that Mr. Dickey should perform only sedentary work. Mr. Dickey received sickness benefits from the Company from August 28, 1989 until October 30, 1990, when they were exhausted.

 After a case meeting held by the Company on November 11, 1990, regarding Mr. Dickey's employment position, Mr. Dickey was instructed to apply for disability benefits under the Social Security Act (the "Act") and for long term disability ("LTD") benefits under the Company's Long Term Disability Benefit Plan. Mr. Dickey did so, stating that he could neither stand nor sit very long and could not walk four blocks before experiencing pain, and that he had constant pain in his hands, right shoulder, arm, lower back, and legs. On April 2, 1991, the Company's administrator of the LTD Plan, John Hancock Mutual Life Insurance Company ("John Hancock"), determined that Mr. Dickey was eligible for LTD benefits, retroactive to October 31, 1990, when his sickness benefits expired. In follow-up reports, Mr. Dickey's physician advised the Company, on February 26, 1992, that Mr. Dickey's condition had not improved and that he could not perform clerical work due to carpal tunnel syndrome and, on May 30, 1992, that he is totally disabled and unable to engage in any substantial gainful activity.

 On September 25, 1992, an administrative law judge of the Social Security Administration ruled that Mr. Dickey is able to perform sedentary work and is therefore not disabled within the meaning of the Act. Accordingly, he found that Mr. Dickey was not entitled to disability benefits under the Act. Upon reviewing this decision and reconsidering Mr. Dickey's medical record, John Hancock recommended, on November 23, 1992, that the Company discontinue LTD benefits, for the reason that he was not "totally disabled" under the Company's LTD Plan.

 On December 16, 1992, Mr. Dickey was evaluated by the Company's medical department. He reported that his condition was about the same as it was a year earlier, that he still had pain and pressure in his lower back and was unable to bend, that the pain was not as bad as before and he was taking less pain medication, that his activity at home was limited to lying in bed, trips to the bathroom and to the postoffice by bus or "El," that he had not driven in two years, and that he could not suggest any tasks or jobs he could perform.

 On December 23, 1992, the Company notified Mr. Dickey that it was terminating his LTD benefits, and it invited him to request an accommodation so that the Company could assess possible job opportunities for him. Mr. Dickey responded, stating that he could not engage in bending, lifting, prolonged standing or sitting, walking, or gripping. He placed a question mark in the space where he was to indicate the type of accommodation requested. He did not know what type of accommodation to request, because he was no longer familiar with what jobs were open or the content of the jobs -- the only particular job he had in mind was that of yard laborer.

 Mr. Dickey appealed both the denial of disability benefits under the Social Security Act *fn3" and the denial of LTD benefits under the Company's LTD Plan, continuing to assert that he was totally disabled within the meaning of both the Act and the LTD Plan.

 On February 17, 1993, the Company's ADA Compliance Committee reviewed Mr. Dickey's case and decided, based on the available medical information and his assertions of the limited activities in which he could engage, that he was unable to return to the yard laborer job and also that there was no other job in the Company that he had both the skills and the physical ability to perform. Nevertheless, the committee chair, John Ibach, directed the Employment and Training Department to review all job openings to determine if Mr. Dickey could perform any of them. None were found -- Mr. Dickey concedes that he cannot type, take shorthand, or work with a computer, and he knows of no office job that he has the ability to perform -- and on March 4, 1993, Mr. Dickey was notified that his request for an accommodation was denied, but that he would be placed on layoff status until his appeal for reinstatement of LTD benefits was concluded.

 On May 27, 1993, Mr. Dickey's attorney furnished the Company, in support of the appeal, a letter from Mr. Dickey's physician that stated that Mr. Dickey's condition, as of May 10, 1993, was as follows: chronic low back pain, occasional sharp pain in the right leg, and numbness; increased back pain with standing or sitting for fifteen minutes; discomfort after walking three or four blocks; and limited ability to bend or lift without pain.

 On July 27, 1993, the Company notified Mr. Dickey that his appeal for reinstatement of LTD benefits was denied because he no longer met the definition of "total disability" under the LTD Plan. On August 30, 1993, the Company notified him that in view of the denial of his appeal, a lump sum severance allowance would be paid and that he could now withdraw the shares ...


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