and evaluated by Excel's nursing staff and/or his own
physician, Excel's nursing staff compared the employee's
specific medical restrictions, if any, with the physical
requirements of his particular job via the MMJA forms, input
from other employees, and the nurse's own knowledge and
experience of the physical requirements of the position. If the
injured employee's restrictions were such that he was unable to
return to his position, a member of the nursing department met
with the employee to discuss possible modifications and/or
accommodations which would allow him to return to his position.
Excel also offered the injured employee a tour of the plant to
familiarize the employee with other jobs which the employee
might be able to perform. If the employee could not perform the
essential functions of his former position or of any other
vacant production position, with or without any reasonable
modifications or accommodations, the employee was given a
temporary, light duty position.
Once an injured employee who had been working in a light duty
position had reached his maximum medical improvement, Excel's
nursing department again met with the injured employee to
discuss whether he could return to his former position or to
any other vacant production position in the plant. If he could
not, the permanently restricted employee was placed on medical
While on medical layoff, the employee was free to bid on any
vacant production and/or non-production position. In addition,
Excel automatically bid permanently restricted employees on all
vacant production positions. If the permanently restricted
employee was the most senior applicant and was able to perform
the essential functions of the position, the employee was
removed from medical layoff status and was awarded the
However, after a permanently restricted employee had been on
medical layoff for a period of twelve months, Excel terminated
that employee based upon Article XIII, § 7E of the CBA.*fn2
Plaintiffs are all Excel employees at the Beardstown plant who
Excel perceives to have permanent medical restrictions and who
were placed on medical layoff pursuant to Excel's medical
layoff policy regarding permanent restrictions and who have
been or will be terminated allegedly pursuant to Article XIII,
Section 7E of the CBA. Plaintiffs claim that Excel's medical
layoff policy violates the Americans with Disabilities Act
("ADA"). 42 U.S.C. § 12101 et seq.
II. PROCEDURAL BACKGROUND
From the outset, Plaintiffs sought to litigate this case as
a class action. Initially, the Court denied Plaintiffs' request
to certify the class. However, upon a motion to reconsider, the
Court reversed its prior ruling and certified the class. The
Court decided to certify the class after Plaintiffs represented
to the Court that they were not purporting to support their
allegations of discrimination by focusing upon the facts
surrounding each Plaintiff's individual claims. Rather,
Plaintiffs asserted that they were claiming that Defendant's
medical layoff policy itself violated the ADA.
Accordingly, in order for Plaintiffs to succeed as a class,
they must show either that "(1) Excel's medical layoff policy
on its face is violative of the ADA; or (2) although the policy
on its face may not violate the ADA, a common general procedure
(i.e., a procedure not apparent on the face of the policy) to
its employees is violative of the ADA." Hendricks-Robinson v.
Excel Corp., 164 F.R.D. 667, 670 (C.D.Ill. 1996). Plaintiffs
may not rely upon their individualized injuries.
III. STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith 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 judgment
as a matter of law." Fed. R. Civ. Pro. 56(c); see Ruiz-Rivera
v. Moyer, 70 F.3d 498, 500-01 (7th Cir. 1995). The moving party
has the burden of providing proper documentary evidence to show
the absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). A genuine issue of material fact exists when "there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202
In determining whether a genuine issue of material fact
exists, the Court must consider the evidence in the light most
favorable to the nonmoving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the
moving party has met its burden, the opposing party must come
forward with specific evidence, not mere allegations or denials
of the pleadings, which demonstrates that there is a genuine
issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir.
Although the Seventh Circuit has not expressly identified the
precise elements necessary to maintain a cause of action under
the ADA,*fn3 other Courts of Appeals have done so.*fn4
However, in Soignier v. Am. Bd. of Plastic Surgery,
92 F.3d 547, 552 (7th Cir. 1996), the Seventh Circuit cited D'Amico v.
New York State Bd. of Law Examiners, 813 F. Supp. 217 (W.D.N Y
1993), as an example of a case which listed the elements
necessary to establish an ADA claim. The D'Amico court stated
that in order "to succeed on a claim under the ADA, plaintiff
must show (1) that she is disabled, (2) that her requests for
accommodations are reasonable, and (3) that those requests have
been denied." Id. at 221.
Excel has not challenged Plaintiffs' assertions that they are
disabled as that term is defined in the ADA.*fn5 Rather,
Plaintiffs and Excel disagree as to whether Plaintiffs'
requests for accommodations are reasonable and whether those
requests have been denied.*fn6
Plaintiffs argue that Excel's medical layoff and termination
policy violates the ADA and/or that Excel's procedures for
applying said policy violate the ADA. Specifically, Plaintiffs
claim that Excel systematically laid off its physically
restricted employees without making reasonable accommodations
for the known physical limitations of otherwise qualified
individuals with disabilities in violation of the ADA.
Plaintiffs assert that Excel's policy and procedures violate
the ADA in four separate respects.
A. LIGHT DUTY JOBS
Plaintiffs argue that Excel violated the ADA by removing
medically restricted employees from light duty positions which
they could perform. Plaintiffs assert that the light duty
positions were a reasonable accommodation under the ADA, and
therefore, they should not have been forced to relinquish those
positions after it was determined that they were permanently
restricted. Finally, Plaintiffs state that these light duty
jobs were not temporary positions but were permanent, light
duty positions which they were capable of performing as
by the fact that they did, in fact, complete the essential
functions of those positions until they were placed on medical
layoff. Thus, Plaintiffs claim that the light duty jobs were a
reasonable accommodation for their disabilities and that Excel
violated the ADA when it removed them from those positions.
Excel argues that it had no duty under the ADA to create any
new positions or to convert temporary positions into permanent
jobs in order to make reasonable accommodations for Plaintiffs.
Excel states that an employer may, consistent with the ADA,
adopt a policy making light duty assignments temporary
positions only. Excel asserts that its light duty assignments
were temporary because the jobs ended when the injured employee
was able to return to heavy duty work or was determined to be
permanently restricted. Excel claims that there is nothing in
the ADA which requires that light duty assignments be listed in
the CBA or that the jobs have a certain termination date.
Therefore, Excel argues that the ADA does not mandate that
Plaintiffs receive an indefinite entitlement to its temporary
light duty positions.
The Equal Employment Opportunity Commission ("EEOC")
guidelines to the ADA provide that a reassignment may be
considered as a reasonable accommodation to a person with a
disability. 29 C.F.R. § 1630.2(o)(2)(ii). However, the ADA does
not require an employer to promote a disabled employee, to give
a disabled employee "superseniority," to give a disabled
employee an occupied position (i.e. the ADA does not require
that a disabled person be allowed to "bump" another employee
out of his position), to convert a temporary position into a
permanent job, or to create a new position in order to
reasonably accommodate a disabled person. 29 C.F.R. pt. 1630,
App. § 1630.2(o); Gile v. United Airlines, Inc., 95 F.3d 492,
499 (7th Cir. 1996); Eckles v. Consolidated Rail Corp.,
94 F.3d 1041, 1051 (7th Cir. 1996); White v. York Int'l Corp.,
45 F.3d 357, 362 (10th Cir. 1995); Benson v. Northwest Airlines, Inc.,
62 F.3d 1108, 1114 (8th Cir. 1995). Moreover, an employer may,
in compliance with the ADA, determine that a light duty
position will be temporary rather than permanent and, thereby,
provide those light duty positions to disabled employees on a
temporary basis only. EEOC Enforcement Guidance: Workers
Compensation And The ADA, EEOC Compliance Manual Sec. 915.002,
p. 23 (Sept. 3, 1996).
In the instant case, the Court finds that the light duty jobs
at Excel's plant were temporary and that the removal of
Plaintiffs from those positions once it was determined that
they were permanently restricted did not violate the ADA.
First, the CBA clearly lists certain positions as being light
duty jobs. While it may have been preferable for the CBA to
have described these light duty jobs as temporary or for the
CBA to have contained a certain date and time at which a
disabled employee could no longer retain one of the light duty
positions,*fn7 that omission does not mean that the jobs were
Prior to October 1991, Excel provided workers who were
injured in the plant with light duty jobs. These light duty
jobs were not subject to the bidding procedures established in
the CBA nor were the jobs awarded based upon seniority. After
October 1991, Excel assigned injured workers to these light
duty jobs while they were recovering from their injury. As long
as the injured employee's medical condition continued to
improve and as long as he was considered to be temporarily
restricted, he could remain in the light duty position.
However, once the injured employee was determined to be
permanently restricted in that he could not perform the
essential functions of any of the production jobs in the plant
other than the essential functions of the light duty jobs, he
was placed on medical layoff.
Under these circumstances, the Court finds that the light
duty jobs were temporary. Although the jobs did not have an
ending date, it is clear that Excel's policy set these jobs
aside in order to facilitate its employees' recoveries from
Excel's policy attempted to facilitate its employees'
recoveries by allowing them to remain employed rather than
placing them on medical layoff to recover at home. Once the
employee was no longer medically restricted or was permanently
restricted, the light duty job was no longer available to him.
Thus, the position was of a temporary duration.*fn8
Because Excel treated all of its light duty jobs as
temporary, it was not required to make those positions
permanent as a reasonable accommodation under the ADA. The
Court finds this case to be substantially similar to Nguyen v.
IBP, Inc., 905 F. Supp. 1471 (D.Kan. 1995). Like Excel's policy
in the case at bar, the employer's policy in Nguyen
set aside certain light-duty jobs, like the picker
position, just for employees who are under medical
management. Standard production requirements do
not exist for these positions; supervisors simply
evaluate whether the injured employee is putting
forth sufficient effort considering his medical
restrictions. IBP treats these light-duty jobs as
temporary assignments given to injured employees
during their period of recuperation. As long as
the employee is still recuperating and is subject
to medical restrictions, IBP will allow the
employee to retain the light-duty position.
Id. at 1485 n. 8. Accordingly, the Nguyen court stated that
"because [the defendant] treated as temporary all assignments
to the light-duty picking position, [the plaintiff's] permanent
assignment to that position is not a reasonable accommodation."
Id. at 1485-86.
Likewise, because Excel treated its light duty positions as
temporary, the ADA did not require it to provide the light duty
jobs to Plaintiffs on a permanent basis. Excel's policy allowed
injured employees to remain in light duty positions for a
longer period of time than if Excel's policy had limited the
position to a certain amount of time.*fn9 Therefore, Excel's
policy engaged in the type of individualized, case-by-case
inquiry which is favored by the ADA rather than terminating all
injured employees from their light duty positions after a
certain period of time.
Second, Plaintiffs argue that Excel's policy violated the ADA
because it focused on whether permanently restricted employees
could perform the essential functions of heavy duty positions
rather than the light duty jobs which they were performing at
the time when they were placed on medical layoff. Plaintiffs
assert that the relevant inquiry under the ADA regarding
whether an employee can perform a job's essential functions is
whether the employee can perform the essential functions of the
job he was performing prior to layoff and not whether he could
perform the essential functions of his position prior to his
Plaintiffs rely heavily on Valdez v. Albuquerque Pub. Schs.,
875 F. Supp. 740 (D.N.M. 1994) and Taylor v. Garrett,
820 F. Supp. 933 (E.D.Pa. 1993). In Valdez, the district court found
that a disabled employee's "inability to perform the essential
functions of the employment position for which he was hired
does not defeat his claims under the ADA." Valdez, 875 F. Supp.
at 747. Rather, that court stated that the focus should be on
the job the plaintiff was performing prior to the alleged
discrimination. Id. Likewise, in Taylor, the district court
held that "when an employee has been offered light-duty work .
. . and that employee challenges the conditions of, and the
reasons for his separation from, such light-duty work, the
relevant inquiry must be his qualifications to perform
that work in which he was engaged when the alleged
discrimination occurs." Taylor, 820 F. Supp. at 938 (emphasis in
However, neither case addresses the issue presented here:
whether permanently restricted employees are entitled to
permanently retain light duty positions which have been set
aside as temporary, light duty positions for temporarily
restricted employees. On that issue, the Court is persuaded by
Nguyen and Sidaris v. Runyon, 967 F. Supp. 1260 (M.D.Ala. 1997).
In Nguyen, the district court stated
Indeed, it seems consistent with the ADA that an
employer should not be discouraged from assigning
injured employees to temporary light-duty
positions during their recuperation by the risk
that these temporary assignments will establish
that the employer can reasonably accommodate an
employee with a vacant, permanent assignment.
Nguyen, 905 F. Supp. at 1486.