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TOMASELLO v. DELTA AIR LINES

June 24, 1998

DEBRA TOMASELLO, Plaintiff,
v.
DELTA AIR LINES, INC., Defendant.



The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 Debra Tomasello ("Tomasello") has sued her ex-employer Delta Air Lines, Inc. ("Delta"), asserting that Delta violated the Americans with Disabilities Act ("ADA," 42 U.S.C. §§ 12101-12117 *fn1" ) by discriminating against her because of her diagnosed medical condition of reflex sympathetic dystrophy. Delta has filed a Fed. R. Civ. P. ("Rule") 56 summary judgment motion, both sides have complied with this District Court's General Rule ("GR") 12(M) and 12(N), *fn2" and the motion is fully briefed and ready for decision. For the reasons stated in this memorandum opinion and order, Delta's motion is granted and this action is dismissed.

 Summary Judgment Standards

 Familiar Rule 56 principles impose on Delta the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court must "read[ ] the record in the light most favorable to the non-moving party," although it "is not required to draw unreasonable inferences from the evidence" ( St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n.2 (7th Cir. 1997)). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" ( McCoy v. WGN Continental Broad. Co., 957 F.2d 368, 370-71 (7th Cir. 1992)), that does not negate the potential for summary judgment in cases where a movant plainly satisfies the Rule 56 standards ( Washington v. Lake County, 969 F.2d 250, 254 (7th Cir. 1992)). In those terms summary judgment is appropriate if the record reveals that no reasonable jury could conclude that Tomasello was treated in a statutorily prohibited discriminatory fashion (see Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1402 (7th Cir. 1996) and cases cited there). And as the ensuing discussion demonstrates, that standard dooms Tomasello's claims.

 As with every summary judgment motion, this Court accepts nonmovant Tomasello's version of any disputed facts. *fn3" What follows in the Facts section (and to some extent later) is culled from the parties' submissions, with any differences between them resolved in Tomasello's favor.

 Facts

 On September 27, 1993 Tomasello began working as a Temporary Reservations Sales Agent ("Agent") *fn4" in Delta's Schaumburg, Illinois Reservations Sales Office (D. 12(M) P1). In that capacity she was responsible for handling telephone calls, answering questions concerning flight schedules and airfares and booking reservations (id. P2), all of which required her to spend the bulk of her day typing on a computer keyboard (T. 12(N) P4; Tomasello Dep. 68). Because typing is an essential function of the job, Delta required its Agents to be able to type 30 words per minute (T. 12(N) P6). But Tomasello testified that Delta did not enforce that requirement and in fact employed other unidentified persons who could not meet that number (id.).

 On October 16, 1994 Tomasello was involved in a car accident in which she sustained multiple injuries to her face, back, breast, knee, nose and (of particular importance to this lawsuit--she is left-handed) her left arm (D. 12(M) P8). As a result of that accident Tomasello was forced to take an extended leave of absence (id. P9). According to Delta's Director of Equal Opportunity Richard Ealey, any temporary employee is entitled to a 90-day leave of absence, after which (without exception, and irrespective of the reason for the absence) he or she must either return to the job or be terminated (Ealey Aff. P8). *fn5"

 On January 13, 1995--the 90th day after her leave of absence began--Tomasello returned to the Schaumburg office and gave her supervisor Sharon Pendergast ("Pendergast") this January 12 doctor's diagnostic note (Tomasello Dep. Ex. 10):

 
This patient has reflex sympathetic dystrophy of her L [left] hand & a fractured R [right] index finger *fn6" & is unable to type until further notice.

 Tomasello testified that she told Pendergast that "she could type 'with the other arm' or 'take on any other position'" (D. 12(m) P14, quoting Tomasello Dep. 157), but Pendergast responded that there were no other vacancies at the Schaumburg office (id.). Following that conversation Tomasello was terminated (D. 12(M) P15). Six months later Delta closed its Schaumburg facility (T. 12(N) P15).

 On November 9, 1995 Tomasello filed a charge of disability discrimination with Equal Employment Opportunity Commission ("EEOC"). On August 6, 1996 EEOC dismissed that charge and issued Tomasello a right-to-sue letter (AC P7 Ex. A), after which Tomasello timely filed her Complaint here.

 Positions of the Parties

 Tomasello claims that Delta violated ADA by refusing to furnish her with accommodations to which she was legally entitled and then terminating her as a result of her proper request for reasonable accommodation. For its part Delta advances four contentions in support of its Rule 56 motion:

 
1. Tomasello's reflex sympathetic dystrophy is not a "disability" as defined for ADA purposes, so she is not entitled to relief under ADA.
 
2. In any event Tomasello is not a "qualified individual with a disability" and is thus not a member of ADA's protected class.
 
3. Tomasello was discharged for a legitimate nondiscriminatory reason, negating an element essential to her ADA discrimination claim.
 
4. There was no reasonable accommodation available to enable Tomasello to continue her employment.

 Because the second and third of those arguments (either singly or together) defeat Tomasello's claim, this opinion will focus on those matters (though it will speak briefly to the ...


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