five days without pay as a result of the medical roll violation. Plaintiff filed this action on February 1, 1995, alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 1983 and various state common law claims.
Plaintiff returned from medical leave in early May 1994 and Bergamin assigned him to a limited duty post at Our Lady of Resurrection Hospital. In September 1994, plaintiff received an assignment to a limited duty post at the Alternative Response Unit, also known as the Call Back Unit. Officers in this unit respond to nonemergency telephone calls from the public and complete 30 to 50 call reports per shift. Three or four times a day, when there was an overflow of emergency calls, 911 would switch a call over to the Call Back Unit. On October 3, 1994, plaintiff produced a letter from Dr. Cabin requesting that plaintiff be assigned to full duty status in the 16th District on 3rd Watch because the stress from the unit was affecting plaintiff's hypertension. The CPD granted Cabin's request the following day. Plaintiff states that the CPD has never explicitly indicated that his placement on the 3rd Watch and on limited duty posts were reasonable accommodations for his depression.
II. Standard for Motion for Summary Judgment
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). The court must believe the evidence of the non-moving party and construe the evidence in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
"The plain language of rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). However, the party with the burden of proof on an issue may not rest on its pleadings and must make affirmative factual allegations to demonstrate that a genuine issue of material fact exists. Id. at 324. Sufficient evidence that favors the non-moving party must exist before a triable issue can be found. Anderson, 477 U.S. at 249.
III. AMERICANS WITH DISABILITIES ACT
Plaintiff alleges that the City's placement of him into the Personnel Concerns Program is a per se violation of the ADA, that the blood test Bransfield ordered violated the ADA, that the City retaliated against him for filing an EEOC charge, and that it failed to provide a requested reasonable accommodation. The City has moved for summary judgment on all counts. Plaintiff has moved for summary judgment on his claims that he has a disability as defined by the ADA, that placement in the Personnel Concerns Program constitutes a per se violation of the ADA, and that the blood test Bransfield ordered violated the ADA and the Fourth Amendment.
To qualify for relief under the ADA, Krocka must establish: (1) that he is a disabled person under the ADA; (2) that he is qualified to perform the essential functions of his job with or without reasonable accommodation; and (3) he has suffered an adverse employment action because of his disability. DeLuca v. Winer Industries, Inc., 53 F.3d 793, 797 (7th Cir. 1995). The City asserts that plaintiff cannot satisfy this test because he is not a disabled person under the ADA.
The ADA defines a "disability" as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual;