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May 1, 1998

GALE Q. BEST, JR., Plaintiffs,

The opinion of the court was delivered by: LEVIN


 Pending is Plaintiff's post-trial motion, upon which an evidentiary hearing was conducted, for an award of back pay, prejudgment interest, back benefits, front pay with front benefits, enhancement for tax penalty and attorney's fees.


 Gale Q. Best, Jr. ("Best") worked as a gasoline delivery truck driver at Shell Oil Company's ("Shell") Des Plaines, Illinois facility for five and a half years. On October 20, 1991, Best injured his left knee while making a gasoline delivery. The injury made it painful for Best to drive some of Shell's trucks. Eventually, after Best had spent some time on disability leave and had sought certain modification in the truck cab to accommodate his tender knee, Shell placed him on unpaid leave of absence in November 1993, which prompted Best's resignation.

 In November 1993, Best brought this action against Shell complaining that, among other things, Shell had failed to meet its obligations under the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq. Subsequently, Shell filed a summary judgment on the ADA count. In reviewing the lower court's decision to grant summary judgment on the ADA count to Shell, the Seventh Circuit reversed and remanded the cause for further proceedings after finding that there existed a "genuine issue fact on the impact of [Best's] injury on the major life activity of working." Best v. Shell Oil Co., 107 F.3d 544, 548 (7th Cir. 1997). The court stated that "a reasonable trier of fact could find that Best's bad knee substantially limited his ability to work as a truck driver" and/or that "a trier of fact could find that Shell perceived Best as having a disability that prevented him from working as a truck driver for the company." Id.

 After remand from the Seventh Circuit, the cause was transferred to this court and a jury trial was conducted. The trial resulted in findings by the jury that Best was not disabled but that in 1993 Shell had regarded Best as disabled in the sense that he was substantially limited in the ability to work. See 42 U.S.C. § 12102(2). The jury awarded Best $ 45,000 in compensatory damages and declined to award punitive damages.

 Plaintiff now seeks: (1) back pay, (2) prejudgment interest on the back pay, (3) back benefits, (4) front pay and front benefits, (5) enhancement for any tax penalty and (6) attorney's fees.



 Best contends that he is entitled to $ 144,661 in back wages. Shell contends and is in agreement that Best is entitled to $ 86,546.99 in back pay. Otherwise, Shell disputes three aspects of Best's calculations: (1) the amount of overtime reimbursement sought by Best; (2) the appropriate starting date in 1993 from which to calculate damages; and (3) Best's inclusion in his calculations of a period of time in 1997 when Best was unemployed due to quitting a job or was physically unable to work. The court will address these challenges in turn.


 In Best's post-trial memorandum, Best sought $ 117,354 in back wages. In Best's reply brief, Best amended the amount he sought for back pay to $ 144,661. Best's additional amount ($ 27,307) represented an alleged additional eight hours of overtime for each two-week pay period. Shell disputes that Best is entitled to this additional overtime back pay.

 Best did not demonstrate with any evidentiary proof his entitlement to the additional overtime back pay. Therefore, Best's additional overtime request of $ 27,307 must be disallowed.


 As the jury found that Shell regarded Best as disabled "in 1993," the parties agree that Best's back pay calculation should begin in 1993. The parties disagree, however, regarding when in 1993 the back pay calculations should begin.

 Best argues that his back pay award should begin May 1, 1993 when he received a return-to-work slip by his personal physician. On the other hand, Shell argues that Best's back pay award should begin on October 22, 1993 because, in a separate worker's compensation proceeding filed prior to this case, Best represented that he was totally disabled and, therefore, unable to work from October 21, 1992 through October 21, 1993 (excluding a period during which he was employed by another trucking company). In other words, Shell argues that Best is judicially estopped and should not receive damages for a time period during which he represented in another legal proceeding he was incapable of working.

 This court agrees with Shell. Best is estopped and cannot recover back pay for a period during which Best represented in another legal proceeding that he could not work. See, e.g., McNamara v. City of Chicago, 138 F.3d 1219, 1998 WL 117894, at *6 (N.D. Ill. 1998); DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 191 (7th Cir. 1995); Christou v. Hyatt Regency-O'Hare, 996 F. Supp. 811, 1998 U.S. Dist. LEXIS 2686, 1998 WL 111656, at *3 (N.D. Ill. 1998).


 Finally, Shell disputes Best's entitlement to back pay for certain periods during 1997. Shell asserts that Best testified in a post-trial deposition that he was unable to drive from May 28 to September 27, 1997 due to a back injury. Then, Best quit his job on September 27, 1997 and did not go back to work until December 11, 1997. Shell asserts that Best may not recover back pay for the four month period during which he was unable to drive and the three month period when he was unemployed as a result of quitting the job. See, e.g., Bowe v. Colgate-Palmolive Co., 272 F. Supp. 332, 366 (S.D. Ind. 1967), modified, 416 F.2d 711 (7th Cir. 1969) (awarding back pay only for time that plaintiffs were available for work).

 In response, Best asserts that he injured his back while mitigating his damages when he undertook a job with Marriott that required more strenuous lifting and pulling than his Shell job. Best further asserts that he quit the Marriott job because he could not physically perform the work. Best argues that Shell should not benefit from Best's injury which would not have occurred had he still been employed by Shell. Best asserts, inter alia, that, since he was physically unable to perform the Marriott job, Best's ten weeks for unemployment was not a failure to mitigate.

 The court agrees with Best's position and finds in favor of Best on this point. Best thus is awarded the $ 18,041.28 involved in the ...

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