United States District Court, Northern District of Illinois, Eastern Division
August 25, 2000
SCOTT PLUTA, PLAINTIFF,
FORD MOTOR COMPANY, DEFENDANT.
The opinion of the court was delivered by: Milton I. Shadur, United States District Judge
MEMORANDUM OPINION AND ORDER
Scott Pluta ("Pluta") sues his ex-employer Ford Motor Company
("Ford"), claiming that his firing by Ford violated the Americans with
Disabilities Act ("ADA," 42 U.S.C. § 12101 to 12117).*fn1 Ford has
moved for summary judgment, and both sides have complied with this
District Court's LR 56.1.*fn2 Ford's motion is therefore fully briefed
and ready for decision. For the reasons stated in this memorandum opinion
and order, the motion is granted in part and denied in part.
Summary Judgment Standards
Familiar Rule 56 principles impose on Ford the burden of establishing
the lack of a genuine issue of material fact (Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (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
Cir. 1997)). As Pipitone v. United States, 180 F.3d 859, 861 (7th
Cir. 1999) has more recently quoted from Roger v. Yellow Freight Sys.,
Inc., 21 F.3d 146, 149 (7th Cir. 1994):
A genuine issue for trial exists only when a reasonable
jury could find for the party opposing the motion based
on the record as a whole.
As McCoy v. WGN Continental Broad. Co., 957 F.2d 368
, 370-71 (7th Cir.
1992) has said, that "general standard is applied with added rigor in
employment discrimination cases, where intent is inevitably the central
issue." But neither "the mere existence of some alleged factual dispute
between the parties" (Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986)) nor the existence of "some metaphysical doubt as to the material
facts" (Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574.
586 (1986)) will defeat a summary judgment motion.
What follows in the Facts section (and in the later factual discussion)
is culled from the parties' submissions. And as with every summary
judgment motion, this Court accepts Pluta's version of any disputed facts
where it is arguably supported by the record. Whenever any reference is
made to Ford's different version on any subject, its inclusion is purely
informational — Pluta's scenario is credited here even when this
opinion's factual recital does not expressly say so.
On March 13, 1994 Pluta began work at Ford's Chicago Parts and
Distribution Plant as a warehouse technician (F. St. ¶¶ 2, 8).
Warehouse technicians perform multiple functions at three different
"stations" located alongside a conveyer system. First, at the induction
station "the warehouse technician sorts small automotive parts into
plastic containers ("totes")*fn3 (id. ¶ 9). Next, at the stock
picking station*fn4 "the warehouse technician is responsible for picking
individual customer orders and stocking the parts accurately into
rotating stock bins and/or placing them into plastic totes" (id.).
Finally, at the packaging station the parts are pulled from the bins and
put in boxes for individual customer orders" (id.). While warehouse
technicians typically report to a particular station, rotations occur
based on workflow and absences (id. ¶ 10).
On November 10, 1994 Pluta strained his back while lifting a tote at
the stock picking station (F. St. ¶ 11, p. st. ¶ 10). He
returned to work less than four weeks later (F. St. ¶ 14) and says
that he did not need and did not request an accommodation at that time
(P. St. ¶ 10). Then on June 13, 1995 Pluta picked up a 40 pound tote
at the induction station and heard something pop in his back (P. St.
¶ 11). After reporting to his supervisor, Pluta went to Gottlieb
Memorial Hospital, where he was diagnosed with a "severe lumbar strain"
(P. Resp. ¶ 16). Two days later Pluta visited his personal
physician, orthopedic surgeon Avi Bernstein, who prescribed time off from
work and analgesics (F. St. ¶ 17, P. St. ¶ 12). Based on an
August 25, 1995 MRI (magnetic resonance imaging) scan, Dr. Bernstein
diagnosed Pluta as having a small central disc herniation at the L3/4 and
L4/5 levels (P. St. ¶ 13, F. Resp. ¶ 13). On November 13,
1995, after conducting further tests and considering other options, Dr.
Bernstein recommended that Pluta undergo two level spinal fusion surgery
(P. St. ¶ 16). But a month later orthopedic surgeon Dr. Thomas Rodts
counseled against surgery (F. St. ¶ 19).*fn5
Pluta did not return to work in 1995 except for ¶ one or two days"
between October and December (F. St. ¶ 20). On one of those
occasions, though, Pluta asserts that Brian Plemel ("Plemel"), an
employee relations associate of Ford, refused Pluta's request to be
placed on a light duty assignment such as the induction station*fn6 (P.
St. ¶¶ 19-20). Pluta also claims that Plemel told him there were no
light duty positions (id. ¶ 21). That statement is credited for
present purposes, even though Plemel denies that any such conversation
took place (F. Resp. ¶¶ 19-20).
Pluta says his condition today is the same as at the time of his 1995
injury (Pluta Dep. 169). He further says the injury "substantially
limits"*fn7 his ability to perform his job primarily because of the
repetitive twisting, lifting and reaching (id. 169-70). Dr. Bernstein
believes that Pluta's injuries were an aggravation of "a pre-existing
condition of a degenerative disease in his low back . . ." (Bernstein
Dr. Bernstein saw Pluta several times over the succeeding months and
ultimately requested a functional capacity evaluation, which was
conducted on March 1, 1996 at Ford's expense (P. St. ¶ 23-25, F.
St. ¶ 23). That evaluation stated in relevant part (F. St. ¶
Results reveal a generally deconditioned individual who
demonstrated the ability to perform at the Light/Medium
physical demands level. Self limiting due to pain
reports which it is felt were excessive and at times
inconsistent with activities being performed may
comprimise [sic] the validity of this assessment as a
true indicator of his maximal effort.
It went on to discuss several tests and observations that were believed
to be inconsistent with the subjective pain expressed by Pluta. Because
the evaluation felt that Pluta's demonstrated "ability to perform at the
Light/Medium level [did] not represent [ ] true maximal effort," it
recommended "[c]ounseling to address the psychological component of his
reported pain and related issues . . ." (F. St. ¶ 23).*fn8
On December 16, 1996 Dr. Bernstein recommended another functional
capacity evaluation "in an effort to get an independent third-party
evaluation of [Pluta's] functional ability, and to release him to
restrictions based on that evaluation" (F. St. ¶ 24). That second
evaluation said that Pluta gave an overall reasonable effort" and listed
a few minor restrictions (F. St. Ex. C-1 at 52). One month later
independent third-party orthopedic surgeon" Dr. Julie Wehner examined
Pluta and opined that he could "return to his regular job as a warehouse
technician without restrictions" (F. St. ¶ 25). Dr. Bernstein
testified that on February 3, 1997 he told Pluta that he could return to
work with reduced hours*fn9 and a 15 to 20 pound lifting restriction
(Bernstein Dep. 21).*fn10
Pluta returned to work on February 11, 1997 and was assigned to the
stock picking station (P. St. ¶ 27). Pluta asserts (although Ford
denies — a denial this Court
must now discredit) that he had asked
Plemel to be "assigned to induction or as a truck driver delivering
parts" (id., F. Resp. ¶ 27). On that first day back Pluta re-injured
his back and went to Oak Park Hospital (P. St. ¶ 27). Company
physician Dr. Alfred Akkeron examined Pluta the next day and concluded
(F. St. ¶ 28):*fn11
In light of the patient's essentially normal clinical
evaluation and his functional capacity evaluation, I
feel that he can return to work at this time to his
regular duty position.
But Pluta contends (and this Court accepts) that Dr. Akkeron "did not
listen to his complaints, and that physicians at Oak Park Hospital and
Oak Park Clinic noted his disc herniation and told Pluta that he should
not work until he was seen by his treating physician [that is, Dr.
Bernstein]" (P. Resp. ¶ 28)
On February 19, 1997 Pluta returned to work and again injured his back
lifting totes at the stock picking station (P. St. ¶ 32).*fn12
While Dr. Akkeron determined that Pluta could return to work, Dr.
Bernstein prescribed "No work" (F. St. ¶ 30). On March 21, 1997 Dr.
Bernstein again examined Pluta and prescribed "No work until further
notice" (id. ¶ 31). Due to that conflict, independent physician Dr.
Ronald Pawl was consulted pursuant to the collective bargaining agreement
between Ford and UAW (id. ¶ 32).
In a July 14, 1997 letter to Plemel, Dr. Pawl opined (F. St. Ex. C-1
[I]t is my opinion that Mr. Pluta should not be engaged
in heavy occupational activities. This is based upon
the degenerative conditions in his back and not upon
the work injuries in question. These injuries were
both strains. There is no evidence of any acute disc
herniations or anything other than degenerative changes
and congenital narrowing of the spinal canal. . . .
Upon reading a job description of warehouse technician and viewing a
videotape prepared by Ford, Dr. Pawl viewed Pluta's job as "only light
occupational activity" and said he was "not restricted from that
activity" (id. 98-99). Pluta, however, urges that the videotape relied
upon by Dr. Pawl "did not accurately depict the day to day functions of a
warehouse technician" because it did not capture repetitive tasks or
lifting totes from ground level or reaching for totes above head level
(P. St. ¶ 31).*fn13
Based on Dr. Pawl's opinion, Ford ordered Pluta to be back at work July
21, 1997 (F. St. ¶ 34). Pluta showed up at work that day and was
assigned to the stock picking station,*fn14 but he left again because of
back pain (P. St. ¶ 52). On July 28, 1997, after Pluta failed to
return for work, plant Human Resources Manager Bill Gough ("Gough") sent
Pluta a "five-day quit" letter, stating in relevant part (F. St. ¶
Our records show that is has been five or more working
days since you last worked. If you do not, within 5
working days . . . from the above date, either report to
the Employment Office for work or give satisfactory
reason for your absence to the Employment Office in
writing or by telephone, your employment will be
terminated and you will lose your seniority. . . .
If you are unable to work because of illness or injury,
and so report to the Employment Office within the time
stated above, you will be granted a sick leave of
absence to cover the period of your disability upon
presenting evidence thereof.
Because Pluta did not return to work between July 28 and August 6, he
was in fact terminated on that last date (F. St. 9140-41). Meanwhile
Pluta had met with Gough and Pluta's union chairman Angelo Marotta
("Marotta") on July 30 to discuss the situation (F. Resp. ¶ 58,
Gough Dep. 7).*fn15 Pluta says that at that meeting he told Gough a
medical release could not be obtained in the required time because Dr.
Bernstein was out of town (P. St. ¶ 58). According to Pluta, Cough
responded that the opinion did not matter any more, and Cough then
refused to grant Pluta any additional time to see his physician or get a
medical release (P. St. ¶ 59). Although Gough denies stating that
the opinion of Pluta's physician did not matter and denies that Pluta
ever mentioned having problems getting medical documentation (F. St.
¶¶ 58-59), those denials are of course rejected for Rule 56
purposes. In any event, despite Pluta's knowledge of Dr. Pawl's findings,
he did not tender any additional medical documentation before August 6 or
thereafter (F. St. ¶ 36).*fn16
On August 18, 1997 Pluta filed a grievance with the union (P. St.
¶ 64). In response Gough authored a "Company Statement of Fact and
Position" that stated incorrectly that Pluta "was placed on light duty
work" on July 22, 1997 (P. St. ¶ 65). Gough also made an identical
false statement in a letter to the EEOC (id. ¶ 66). Gough has no
explanation for either statement (P. St. ¶ 65-66).
Pluta's First Three Claims Are Time-Barred
Pluta's first three claims are that he was not afforded reasonable
accommodations in November-December 1995, January 1996 and February
1997*fn17. Acknowledging that those alleged violations would normally be
time-barred, Pluta seeks to advance them under the continuing violation
theory.*fn18 In that respect Place v. Abbott Labs., 215 F.3d 803, 807
(7th Cir. 2000) quotes the teaching from Dasgupta v. University of Wis.
Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997):
A continuing violation is one that could not reasonably
have been expected to be made the subject of a lawsuit
when it first occurred because its character as a
violation did not become clear until it was repeated
during the limitations period.
So, as Wilson v. Chrysler Corp., 172 F.3d 500, 510 (7th Cir. 1999)
(quotation marks and citation omitted) explains, a "plaintiff must sue as
soon as the harassment becomes sufficiently palpable that a reasonable
person would realize she had a substantial claim [of discrimination]."
Three types of continuing violations are recognized by our Court of
Appeals (Place, 215 F.3d at 808)
where the exact day of the violation is difficult to
pinpoint because the employer's decisionmaking process
takes place over a period of time; where the employer
has a systematic, openly espoused policy alleged to be
discriminatory; and where the employer's discriminatory
conduct is so covert that its discriminatory character
is not immediately apparent.
Only the last of those alternatives would arguably apply to Pluta's
assertions. But Pluta testified that there was "no doubt" in his mind
that Ford had failed to accommodate him on each of those three occasions
(Pluta Dep. 60). Because by his own acknowledgment his knowledge called
for the filing of a charge under those circumstances,*fn19
Pluta's claims relating to events more than 300 days before February 17,
1998 are dismissed.*fn20
Pluta's Wrongful Termination Claim*fn21
Under ADA's employment section (Title I), "a covered entity may
discriminate in two ways: disparate treatment of or failure to
accommodate a disabled employee" (Stevens v. Illinois Dep't of Transp.,
210 F.3d 732, 736 (7th Cir. 2000)). Those two types of claims involve two
distinct lines of analysis, with the failure to accommodate analysis not
employing the familiar McDonnell Douglas burden-shifting framework
because it "is unnecessary and inappropriate. Accordingly, it is
important for the plaintiff to be clear about the nature of the claim he
or she is asserting" (Weigel v. Target Stores, 122 F.3d 461, 464 (7th
Cir. 1997) (citations and internal quotation marks omitted).
Foster v. Arthur Anderson, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999)
(citations omitted) describes a plaintiff's required showing*fn22 under
the failure to accommodate analysis:
(1) she was or is disabled; (2) the defendant was aware
of her disability; (3) she was otherwise qualified for
her job; and (4) the disability caused the adverse
employment action (a factor which is implied if not
And as for the disparate treatment approach,*fn23
Gorbitz v. Corvilla,
Inc., 196 F.3d 879
, 882 (7th Cir. 1999) (adapted to this case) says that
Pluta must first show:
(1) [he] was disabled; (2) [his] work performance met
[Ford's] legitimate expectations; (3) [he] was
terminated; and (4) the circumstances surrounding
[his] termination indicate that it is more likely than
not that this] disability was the reason for the
If Pluta establishes a prima facie case in those terms, the McDonnel
Douglas burden-shifting analysis comes into play.
Here Pluta's self-prepared complaint was a layman's effort, so it was
understandably imprecise as to his theory of recovery. And his appointed
counsel's Rule 56 submissions have spoken in terms of both failure to
accommodate and a discriminatory adverse employment decision. This
opinion will accordingly examine Pluta's wrongful termination claim from
Because each approach implicates Pluta's ability to do the required
work (understandably, given ADA's Section 12112(a) prohibition against
discriminating against "a qualified individual with a disability . . ."),
that question will be addressed first. On that score Ford argues
that Pluta was not qualified to perform the essential job functions*fn24
because he reported to work for only seven days between June 13, 1995 and
August 6, 1997. But Ford shoots itself in the foot by labeling these
facts as "uncontroverted" (F. R. Mem. 12, record citations omitted):
Because of the differences of opinion between Pluta's
personal physician and other treating physicians,
pursuant to the COLLECTIVE BARGAINING AGREEMENT, Ford
arranged for Pluta to see [Dr. Pawl]. After Dr. Pawl
opined that he could return to his job without
restrictions, Pluta reported to his workstation on July
That statement certainly evidences no concern on Ford's part as to
Pluta's ability to do his job, and it is wholly consistent with Pluta's
view that he was on "conditional medical leave" (P. Mem. 12).
There is no question that Ford was highly accommodating in granting
Pluta medical leave and providing for an independent medical
examination. But the only evidence as to a problem being indicated by
Pluta's absences was Ford's ultimate issuance of the five-day quit
letter.*fn25 And its thrust was one of seeking to separate voluntary
absences on goldbricking from legitimate medical problems, rather than of
disputing Pluta's qualification to do the job.
This situation, with the necessary reasonable inferences in Pluta's
favor, undermines Ford's reliance on Jovanovich v. In-Sink-Erator Div. of
Emerson Elec. Co., 201 F.3d 894, 899-900 (7th Cir. 2000), Waggoner v.
Olin Corp., 169 P.3d 481, 483-85 (7th Cir. 1999), Corder v. Lucent
Techs. Inc., 162 F.3d 924, 926-28 (7th Cir. 1998) and Nowak v. St. Rita
High Sch., 142 F.3d 999, 1001, 1003 (7th Cir. 1998). Things would be
different if Ford had made available to Pluta a light duty assignment,
like the one evidently envisioned by Gough (an assignment for which Pluta
was indisputably qualified), while the differing medical opinions were
being resolved, and if Pluta had then refused that offer. In sum, for
purposes of the current motion Pluta (despite his extended absences) has
satisfied the element of his being a "qualified individual" under ADA.
But was Pluta otherwise "disabled?" Significantly, Ford does not argue
in its current motion that he was not. Indeed, if as Pluta posits the
videotape relied upon by Dr. Pawl is inaccurate and a warehouse
technician's activities are more properly characterized as heavy
activity, Pluta's injury would plainly be a disability under ADA (see
DePaoli v. Abbott Labs., 140 F.3d 668, 672-73 (7th Cir. 1998)). For
present purposes, then, Pluta must be viewed as "disabled."
What remains under the failure to accommodate approach is whether there
was a causal nexus between that disability and Ford's adverse employment
action, while the ultimate remaining inquiry if the McDonnel Douglas
route were taken is whether Ford's stated reason for its action was
pretextual.*fn26 Either way, then, the inquiry turns to the real cause
for Pluta's termination.
In view of all the surrounding circumstances, there is a genuine
factual issue as to whether Pluta's disability was the reason for the
termination. In evidentiary terms, as Conley v. Village of Bedford Park,
215 F.3d 703, 709 (7th Cir. 2000) has said, quoting from Troupe v. May
Dep't Stores Co., 20 F.3d 734, 735 (7th Cir. 1994):
Different kinds and combinations of evidence can
demonstrate a discriminatory intent such as "suspicious
timing, ambiguous statements, oral or written, behavior
toward or comments directed at other employees in the
protected group, and other bits and pieces from which
an inference of discriminatory intent might be drawn."
So Pluta's asserted non-compliance with the five-day quit letter, which
Ford puts forth as the reason for his termination, cannot be viewed in a
vacuum. Instead, a variety of factors indicates that a genuine and
material issue of fact exists as to whether Ford's reason for issuing and
then acting immediately on that letter was pretextual.
There is clearly a dispute as to whether Pluta asked Plemel for a light
duty assignment and was rebuffed.*fn27 Indeed, despite the fact that
Ford admirably condoned Pluta's prolonged absences because of his back
problems, only Gough's fictitious statements refer to the nonexistent
light duty assignments given to Pluta. And Gough's misstatements on
that. score also confirm that light duty positions could have been found
for Pluta at the plant — it is undisputed that other employees at
the plant were assigned less physically demanding tasks because of
injuries (P. St. ¶ 40-45). As for Dr. Pawl's medical opinion, it
rests on a presently impermissible Ford-favoring resolution of disputed
facts: If as Pluta says the Aegis report and the videotape that Dr. Pawl
relied on are inaccurate, his recommendation of returning to the "light"
activity of a warehouse technician without restrictions is meaningless.
And again Gough's misstatements demonstrate that he felt some activities
existed that were "lighter" than the day-to-day work of a warehouse
technician.*fn28 In sum,
if Pluta had requested a reasonable
accommodation and was refused even though light-duty positions were
available, and if the report and video relied upon by Dr. Pawl is
misleading, then Ford's demand in the five-day quit letter that Pluta
return to his prior activities or face termination is nothing more than a
thinly disguised effort to rid Ford of Pluta for other reasons.*fn29
Combined with those factors is Pluta's claimed need for more time to
get additional medical documentation. Even if the five-day quit letter
were taken at face value, Pluta testified that Gough did not care when
Pluta said that he was unable to get further medical documentation
because his physician was out of town.*fn30 That testimony, which must
be credited for now, casts further suspicion on Ford's asserted
motivations.*fn31 After all, Ford had the options of offering Pluta a
less strenuous job or of waiting until Dr. Bernstein was back in town to
provide further medical documentation, but it did neither. Those facts
stand in sharp contrast to the cases relied upon by Ford at F. Mem.
8.*fn32 Pluta thus succeeds in showing that "the circumstances
surrounding his termination" indicate that Ford's asserted reason for
terminating him was pretextual.*fn33
Pluta's non-termination ADA claims are all time-barred and are
dismissed with prejudice. As to Pluta's wrongful termination claim under
ADA, however, Ford has not succeeded in demonstrating the absence of
genuine issues of material fact that, if resolved in Pluta's favor, keep
that claim alive. Ford's Rule 56 motion as to that claim is therefore
denied. This action is set for a telephonic status hearing at 8:45 a.m.
September 1, 2000 to discuss the necessary procedures to bring the case