optional factors found in the regulation might indeed be
dispositive. But when a plaintiff presents evidence of the
severity and permanence of her impairment from which it can be
inferred that the impairment limited her from performing a broad
range or entire class of jobs, her failure to specify geographic
vocational evidence is likely to be of little or no significance.
Given this understanding of Palao's burden, we turn to her
evidence. In her brief opposing summary judgment, Palao argues
that it is "wholely contradictory for Defendant to say it had no
work for Plaintiff that Plaintiff could perform and then later
say that Plaintiff was not disabled and substantially limited
from employment with Defendant." P. 3-4. This argument conflates
two different standards (Fel-Pro's discretion and the ADA
definition of "disability") and ignores the fact that it is
Palao's burden to show that she has a disability. In her brief,
Palao states that her "right shoulder condition is a qualified
statutory disability . . . as it disqualifies Plaintiff from work
that she customarily performed prior to the onset of said
condition. . . ." P. 2-3. This argument ignores controlling
authorities that make it clear that the "inability to perform a
single, particular job does not constitute a substantial
limitation in the major life activity of working."
29 C.F.R. § 1630.2(j)(3)(i); Murphy v. United Parcel Service, Inc.,
527 U.S. 516, 525, 119 S.Ct. 2133, 2139, 144 L.Ed.2d 484 (1999)
(holding that evidence of a plaintiff being "regarded as unable
to perform only a particular job . . . is insufficient, as a
matter of law, to prove that petitioner is regarded as
substantially limited in the major life activity of working").
Similarly, the work restrictions imposed by Palao's doctor are
not enough to meet her burden at this stage. While Palao's
shoulder injury is permanent, she has not shown that it is either
severe enough or would have a "long term impact" sufficient to
substantially limit her major life activity of working.
29 C.F.R. § 1630.2(j)(2). Palao has made no attempt to advance a theory
under which a jury could find that her shoulder injury
significantly restricts her "ability to perform either a class of
jobs or a broad range of jobs in various classes as compared to
the average person having comparable training, skills, and
abilities." 29 C.F.R. § 1630.2(j)(3)(i). Because Palao has not
met her burden, the Court grants Fel-Pro's motion for summary
judgment on her ADA claim.
2. FMLA Claim
Under the Family and Medical Leave Act, an eligible employee
receives twelve workweeks of leave during any 12-month period
for, among other things, a birth of a child or because of a
serious health condition. 29 U.S.C. § 2612(a)(1). An employer has
no responsibility to restore a person's job if that twelve week
period is exceeded.
In this case, it is undisputed that Palao exceeded 12 weeks of
leave during a 12-month period. It is irrelevant that Palao took
11 weeks of disability leave for shoulder surgery, worked for
approximately five months, and then took 8 weeks of maternity
leave. The statute entitles an employee to a total of 12
workweeks of leave per 12-month period. Accordingly, Fel-Pro's
motion for summary judgment is granted as to Palao's FMLA claim.
3. PDA Claim
Palao claims that Fel-Pro refused to reinstate her and later
fired her because she returned from disability leave three months
pregnant. It appears that she is alleging that Fel-Pro retaliated
against her for getting pregnant and taking excessive leave.
Regardless of whether Palao's case could be viable, we must
dismiss her PDA claim. Exhaustion of administrative remedies is a
necessary predicate to an action under the Pregnancy
Discrimination Act. 42 U.S.C. § 2000e-5(f)(1) (establishing 90day
deadline for filing a civil action following exhaustion of
remedies); Zugay v. Progressive Care, S.C., 180 F.3d 901, 902
(7th Cir. 1999). It is undisputed in this case that Palao's
initial complaint to the Illinois Department of Human Rights
(IDHR) claimed discrimination based solely on her disability.
Palao checked "disability" on the requisite form, leaving "sex,"
"retaliation," and "other" blank. Furthermore, her comments on
the form apply solely to her physical handicap. For example, she
stated, "I am a handicap [sic] individual as defined by the Human
When an administrative charge alleges a particular type of
discrimination, allegations of a different type of discrimination
in a subsequent lawsuit are not reasonably related to the charge
and therefore may not be maintained unless the lawsuit's
allegations can be reasonably inferred from the facts alleged in
the charge. Cheek v. Western and Southern Life Ins. Co.,
31 F.3d 497, 504 (7th Cir. 1994). Palao's allegations of pregnancy
discrimination seek redress based on Fel-Pro's alleged animus
towards her status as a pregnant woman. Her complaint to the
IDHR, however, alleges only that she was "denied a return to work
from maternity leave on February 14, 1997, because of [her]
physical handicap/disability mobility impairment (right shoulder
injury)." Her PDA claim is not like or reasonably related to the
claim she made in her administrative charge. The court concludes
that Palao did not exhaust her administrative remedies with
regard to her PDA claim.
In summary, Fel-Pro's motion for summary judgment is granted as
to all counts. The clerk is directed to enter judgment in favor
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