Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 93 C 6653 Edward A. Bobrick, Magistrate Judge.
Before BAUER, ROVNER, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
DECIDED FEBRUARY 24, 1997
For more than five years, Gale Q. Best, Jr., earned his living as a gasoline delivery truck driver at the Des Plaines, Illinois, facility of Shell Oil Company. Problems began when, on October 20, 1991, Best injured his left knee while making a gasoline delivery. The injury made it painful for Best to drive many of the trucks in Shell's fleet. Eventually, after Best had spent some time on disability leave and had sought certain modifications in the truck cab to accommodate his tender knee, Shell placed him on unpaid leave of absence and Best resigned shortly thereafter. He now complains that Shell failed to meet its obligations under the Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12101 et seq.. The district court granted summary judgment for Shell. Because we conclude that the record contains disputed facts on the question whether Best is a "qualified person with a disability," we reverse and remand for further proceedings.
After Best's October 20, 1991, injury, he began to experience pain whenever he bent his knee more than 90 degrees inward toward his body. This made it painful for him to drive most of the trucks in Shell's fleet, because the clutch and seat configuration required this type of knee position. In an effort to correct the problem, Best had arthroscopic surgery in December 1991. His treating physician, Dr. Rollo J. Nesset, released him for a gradual return to work on January 8, 1992. Shell gave him three days of a reduced workload and then assigned him to a full workload effective January 20, 1992. Unfortunately, Best continued to suffer from pain and swelling while operating the clutch of the trucks he drove. As a result, he was often assigned to office work. In May 1992, Shell asked Dr. Mark Levin to examine Best. Best reported to Dr. Levin that his knee did not bother him when he was seated in a Mack truck seat, rather than the Peterbilt seat he normally had used. Shell, accordingly, replaced the Peterbilt seat in his truck with a Mack seat, which seemed to do the trick. On the four or five occasions when he had to return to the Peterbilt seat, the pain returned as well.
On October 12 and 13, 1992, on Dr. Levin's recommendation, Best was tested at Worker Rehabilitation Services in Chicago. Their functional capacity evaluation report confirmed that Best needed to drive the truck with the specially modified seat, which "decreas[ed] the amount of knee flexion" and thus placed less force on the knee while working the clutch. In a letter of November 3, 1992, to Shell's insurance carrier, Dr. Levin reported that Best had difficulty operating the clutch. He stated that in his opinion, Best would have difficulty continuing in his present position as a Shell gasoline truck driver because "[t]he demands on his knee may be too overwhelming" for driving duties. The result was that Best was placed on longterm disability leave on November 16, 1992. On April 22, 1993, Dr. Nesset examined him again and found that he could return to work provided he was given a truck with sufficient leg room to avoid the need to flex the knee beyond the 90-degree position when depressing the clutch pedal. Best communicated this news to Shell, but Shell refused to return him to work with those restrictions.
Best filed a grievance contesting Shell's decision. At a meeting of July 20, 1993, all concerned agreed to obtain the opinion of a third doctor, selected by mutual consent, and to abide by that doctor's opinion. Shell thought better of matters, however, and on August 13, 1993, it notified Best that it would not participate in the selection of the third doctor nor would it allow Best to return to work. In the meantime, during August and September 1993, Best was driving gasoline trucks for another company without experiencing trouble with his knee (because the trucks used by Best's new employer contained sufficient leg room for him to drive without discomfort). In November 1993, Shell informed him that his leave of absence would thenceforth be without pay, which prompted Best's resignation. After leaving Shell, Best was able to drive both a chemical delivery truck (manufactured by White) and a GMC truck without incident.
On November 1, 1993, Best filed the present action against Shell, alleging violations of the ADA and the Illinois Human Rights Act (IHRA), 775 ILCS 5/2-102(A). Shell responded by filing a motion for summary judgment on both counts. Judge Holderman, to whom the case had initially been assigned, granted summary judgment for Shell on the IHRA count in a ruling that is uncontested here, but he denied summary judgment on the ADA count, for the following reasons:
In this case, plaintiff has presented medical evidence indicating that his knee injury significantly restricted his ability to perform as a truck driver. In fact, the doctor provided to plaintiff by Shell recommended to Shell that plaintiff "would have difficulty maintaining this position [driving a gasoline truck] at this time. The demands on his knee may be too overwhelming for him to be able to participate in those activities. I would recommend that he consider alternative work duties on a full-time basis for the future." In addition to Dr. Levin's comments, Shell has stated in response to plaintiff's interrogatories, that plaintiff was placed on long term disability in November 1992 after Dr. Levin advised that plaintiff was "not capable of performing the essential functions of the job as a truck driver." Based on this evidence, the court finds that a question of fact exists regarding whether plaintiff is substantially limited in the major life activity of working, making summary judgment on this issue inappropriate. Best v. Shell Oil Co., 1995 WL 330764 at *3 (N.D. Ill. May 30, 1995).
After Judge Holderman's ruling, the case was reassigned to Magistrate Judge Bobrick for trial by consent of the parties under 28 U.S.C. sec. 636. At a July 12, 1995, status hearing, Magistrate Judge Bobrick stated that he was interested in reconsidering Shell's motion for summary judgment on the ADA claim. Two days later, the court notified counsel that the motion would not be reconsidered, and trial preparation continued. Again shifting course, however, the court, in an order of September 13, 1995, vacated the scheduled trial date of October 30, 1995, and ordered counsel to re-brief Shell's motion for summary judgment. Shell filed an amended motion for summary judgment with a supporting memorandum and fact statement, but Best filed nothing. Before this court, Best has represented that he elected to stand on his memorandum and fact statement of December 1994, but this was apparently unclear to Magistrate Judge Bobrick, who noted in footnote 1 of his order that Best had not only missed the deadlines for filing his response to Shell's renewed or ...