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February 12, 1997

DONNA CAGLE, Plaintiff,

The opinion of the court was delivered by: GETTLEMAN

 Plaintiff Donna Cagle ("Cagle") has filed a two-count amended complaint against defendant K-Five Construction Company ("K-Five") alleging that: (1) defendant discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq., by refusing to permit plaintiff to return to work with certain medical restrictions after her time off for a work-related injury (Count I); and that (2) defendant violated the Illinois Workers' Compensation Act, 820 ILCS 305/1 et. seq (the "Act") by discharging plaintiff in retaliation for filing a workers' compensation claim (Count II).

 On January 31, 1996, defendant filed its first motion for summary judgment on both counts pursuant to Fed.R.Civ.P. 56. On August 2, 1996, the court granted defendant's motion with respect to Count II and denied defendant's motion with respect to Count I. On December 6, 1996, defendant filed a renewed motion for summary judgment based on new evidence and a motion for summary judgment based on the scope of the charge filed by plaintiff with the E.E.O.C. On plaintiff's request, the court extended the due date for plaintiff's response to January 13, 1997. On January 17, 1997, plaintiff filed a motion for extension of time without a notice of motion. On January 22, 1997, without having presented her motion for extension to the court, plaintiff filed her response and supporting papers to defendant's motions for summary judgment as well as her own cross-motion for summary judgment.

 On January 29, 1997, defendant filed the instant motion in opposition to plaintiff's motion for extension of time and motion to strike plaintiff's response, cross-motion for summary judgment, and accompanying documents. For the reasons set forth below, defendant's motion to strike and in opposition to plaintiff's motion for extension of time is granted. Moreover, even considering all of the briefs submitted, the court finds that there is no genuine issue of material fact as to whether defendant's decision not to accommodate plaintiff was based on her sex and that, accordingly, defendant is entitled to judgment as a matter of law.


 Defendant is a construction company that repairs, builds, and rebuilds roads. Plaintiff began working for defendant as a truck driver in October 1987. Her job duties consisted primarily of driving a truck back and forth between the place where the truck is loaded with dirt to the "dump yard" where plaintiff dumps the dirt.

 In October 1990, plaintiff asked for time off work to see a doctor for back, arm and leg pain, which she claimed was caused by driving a truck over a period of days. Plaintiff's doctor recommended "home rest and ice til further notice." Plaintiff was off work for 152 days and filed a workers' compensation claim based on this injury. Plaintiff did not return to work for six months. On April 15, 1991, plaintiff's doctor released her for work with the restriction that she operate a truck equipped with both an "air-ride cab" and an "air-ride seat." *fn2"

 Robert Krug ("Krug"), defendant's secretary who is responsible for overseeing the company's trucking operations, and Peter Paganelis ("Paganelis"), one of defendant's trucking superintendents, are charged with the job of determining when an injured driver may return to work. Plaintiff was permitted to return to work on May 9, 1991, with the restrictions prescribed by her doctor. Paganelis assigned plaintiff a truck designed to accommodate her injury in May 1991. At that time, neither Paganelis nor Krug informed plaintiff that there would be any problem in the future with accommodating her with air-ride cab and air-ride seat restrictions.

 On May 31, 1991, an asphalt loader accidentally dropped a large asphalt chunk on the top of plaintiff's truck cab, injuring plaintiff's neck. As a result, plaintiff left work on medical leave. On September 11, 1991, plaintiff's husband, James Cagle, a former mechanic for defendant, provided Paganelis and Martin Skoglund's ("Skoglund") *fn3" secretary with a medical release from plaintiff's physician containing the following restrictions:

No heavy lifting over 25 pounds, until further notice. Patient to drive a truck with air-ride cab with air-ride seat.

 Later in same day, James Cagle met Skoglund and asked him if he had received plaintiff's medical release. Skoglund informed Cagle that he had, and that plaintiff was to be scheduled to work the next day.

 When plaintiff reported to work on September 16, Paganelis informed plaintiff that she could not return to work with the 25-pound restriction. Thereafter, plaintiff contacted her doctor and told him that lifting 25 pounds was not part of her job, whereupon Dr. Kawanaga issued plaintiff a second release without that restriction. Plaintiff provided Skoglund with the second release on September 16, 1991, which permitted plaintiff to work as of September 17, 1991, with the following restrictions:

Patient to use Air-Ride Seat with an Air-Ride Cab. To be reevaluated in approximately one month.

 Skoglund did not indicate any problem with the restriction and told plaintiff that he would schedule her to work the next day. Thereafter, Paganelis and Krug discussed these restrictions and determined that defendant would not accept plaintiff back to work with these restrictions. Later that day, Skoglund called plaintiff and told her that she could not return to work with the remaining medical restrictions.

 Plaintiff never presented defendant with a release without the "air-ride cab and air-ride seat" restrictions, and was not allowed to return to work after her conversation with Skoglund on September 16, 1991. Defendant maintains that it neither fired plaintiff nor refused to return her to work under different circumstances. Defendant contends that it considered plaintiff to be an employee on medical leave, and maintained her place on its seniority ...

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