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HAMMER v. BOARD OF EDUC. OF ARLINGTON HTS. SCH. DI

January 17, 1997

BERNARD L. HAMMER, Plaintiff,
v.
BOARD OF EDUCATION OF ARLINGTON HEIGHTS SCHOOL DISTRICT, NO. 25, Defendant.



The opinion of the court was delivered by: HOLDERMAN

 JAMES F. HOLDERMAN, District Judge:

 Plaintiff, Bernard L. Hammer, filed a two count amended complaint against defendant, the Board of Education of Arlington Heights School District, No. 25, alleging employment discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. ยง 12101 et seq. The discrimination plaintiff alleged was based on plaintiff's status (Count I) and defendant's refusal to reasonably accommodate (Count II). Defendant has filed a motion for summary judgment on both counts pursuant to Rule 56 of the Federal Rules of Civil Procedure arguing that plaintiff did not file his charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in a timely manner and that defendant did not violate the ADA. Plaintiff has also filed a motion for summary judgment on both counts pursuant to Rule 56 of the Federal Rules of Civil Procedure contending that defendant committed per se violations of the ADA. For the following reasons, both defendant's motion for summary judgment and plaintiff's motion for summary judgment are DENIED.

 STATEMENT OF FACTS1

 Plaintiff, Bernard L. Hammer, was hired by defendant, Board of Education of Arlington Heights School District, No. 25, to work in its maintenance department in April 1979 and became a groundsman around March 1980. There is a dispute between the parties as to the requirements of the groundsman position. On January 29, 1991, plaintiff sustained a herniated disc while working for defendant. He was on medical leave due to the injury from January 30, 1991 until approximately March 26, 1991. When plaintiff returned to work, he was placed under light duty restrictions by his physician. Specifically, his doctor advised defendant in a letter that plaintiff could walk, sit, drive a truck but not on a rough road, lift nothing more than twenty-five pounds, and not drive a tractor. Defendant accommodated these restrictions by telling plaintiff that he did not have to lift anything heavy, that he did not have to perform work orders that were too heavy, and that a co-worker would lift anything plaintiff could not and perform work orders that plaintiff could not. At the time, plaintiff reported to Al Heinz, supervisor of maintenance, and Mr. Heinz was responsible for assigning plaintiff light duty work. *fn2" James Monroe, Mr. Heinz's supervisor at the time, does not remember any problems with plaintiff's working on light duty and was able to accommodate plaintiff's work restrictions.

 In February 1992, plaintiff enrolled in a get fit program at Harper College. Classes met three days a week during work time. He arranged to get the time off from defendant but was supposed to make up the time. Plaintiff was in the program for six to nine months. He made up some, but not all of the time he missed from work. Plaintiff reinjured his back in a work-related traffic accident in March 1992. This injury worsened his herniated disc and his pain was more easily aggravated. Plaintiff continued to work following the accident and maintained the light duty restrictions. There is a dispute between the parties as to how many days of work plaintiff missed due to his injuries and his attendance of the get fit program.

 At some point in time, Andrew Hogue became defendant's Director of Facilities Management. Plaintiff claims this occurred in February 1992, while defendant maintains that it was in 1991. In June 1992, defendant created a new position, Head of Grounds. There is a dispute as to whether this position was any different than the position in which plaintiff had been working since 1980. Plaintiff contends that it was his same job but with a new title. Defendant argues that the position included plaintiff's duties as well as added responsibilities. Plaintiff applied for but did not get this position. Defendant claims that it did not give the position to plaintiff because he was unable to perform some of the vital functions of the job and that there was concern about plaintiff's work performance. Plaintiff argues that defendant never articulated any reasons for awarding the job to someone with less experience. He adds that he had received a performance review in May 1992 with scores ranging from good to outstanding. Defendant contends that it became unhappy with plaintiff's work performance in the Spring of 1992. It claims that plaintiff was only able to perform twenty percent of his regularly assigned work and he had attendance problems. Plaintiff disputes this.

 On July 13, 1992, Mr. Hogue wrote to plaintiff's attending physician inquiring as to plaintiff's restrictions from work. Plaintiff had been under the assumption that his light duty restrictions were temporary pending a full recovery. Plaintiff did not ever fully recover. Plaintiff's doctor removed him from work for two weeks due to his work-related injury. There is an uncertainty as to whether this commenced on July 13, 1992 or July 15, 1992. On July 28, 1992 or August 1, 1992, plaintiff attempted to return to work but Mr. Hogue told plaintiff that he did not get the Head of Grounds position and that he could not return to work until he was free from all work restrictions.

 Following Mr. Hogue's decision, plaintiff enrolled in a physical rehabilitation work hardening program, at defendant's expense. Plaintiff claims that his goal was to rehabilitate himself to the point that he could return to work without restrictions. Plaintiff was discharged from the program in January 1993 after reaching maximum medical improvement. On January 13, 1993, plaintiff's doctor wrote to defendant's worker's compensation carrier that plaintiff had plateaued in a relatively light to light-medium duty level and had reached maximum medical improvement. In May 1993, plaintiff called defendant's Assistant Superintendent for Personnel and Planning, Dr. Joseph Ward, and requested a letter to determine his employment status. Dr. Ward responded by sending plaintiff a letter dated May 13, 1993 stating that plaintiff is a "permanently disabled employee," receives no salary, but does participate in a medical insurance plan paid in part by defendant. There is a dispute as to whether plaintiff has ever been terminated by defendant. Defendant maintains that plaintiff remains an employee. Plaintiff argues that he was terminated since defendant's policy is that permanently disabled employees shall be terminated and Dr. Ward's letter effectively terminated him.

 Plaintiff argues that defendant has adopted a policy that states that an employee will not be considered temporarily disabled if the employee has exhausted all accumulated sick leave and is continuously absent from work for at least one year or can no longer perform the work for which he or she was employed for at least one year. Defendant contends that this policy is inapplicable to plaintiff and his claims because it was not adopted until August 17, 1995 and therefore could not have been applied to plaintiff.

 STANDARD OF REVIEW

 Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.

 A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). There is no issue for trial "unless there is sufficient evidence favoring the ...


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