then to perform any work for Ryder, Ryder would have to accommodate him
by finding an alternative position for him.
Ryder has a policy as to the accommodation of injuries: When an
employee is unable to perform his job due to injury, Ryder will return
him to work if there is a position available that is within the
employee's skills and abilities to perform and that is consistent with
his medical limitations (R. St. ¶ 22). Upon learning that Cross had
been released to return to work with limitations, Lassa spoke to Rob
Kalinoski ("Kalinoski," Ryder's Driver Recruiting Center Manager for its
Driver Recruiting Center in Bridgeview, Illinois) to ask whether there
were any positions available that Cross could perform subject to his
limitations (R. St. ¶ 23).
As Driver Recruiting Center Manager, Kalinoski (who is also white) was
responsible for filling all driver, warehouse and warehouse clerical
positions in the Chicago area (R. St. ¶ 24). Due to a backlog of work
at the Recruiting Center, Kalinoski needed someone to assist at the
Center in making phone calls and doing filing, and he told Lassa that he
could use Cross as long as there was a need for such services (R. St.
¶ 25). On October 13 Lassa wrote Cross a letter directing him to
return to work on October 18 in a light duty job as Transportation Clerk
at the Recruiting Center (R. St. ¶ 26).
On October 18 Cross returned to work in compliance with that direction
(R. St. ¶ 27). Toward the end of that day, which he had spent making
phone calls and doing filing, Cross claimed to have reinjured his back and
was taken to the emergency room at Christ Hospital (R. St. ¶¶ 28-29).
Dr. Schiappa examined Cross the next day and kept him off of work until
October 23 (R. St. ¶ 30). Dr. Schiappa also referred Cross to Dr.
Mark Cohen for pain treatment (id.).
In an October 24 letter Lassa wrote Cross that Dr. Schiappa had cleared
him to return to work and that the Transportation Clerk position remained
available to him (R. St. ¶ 31). Although some factual disputes exist
as to the ensuing sequence of events, it appears that Lassa had a phone
conversation with Cross about that letter in which Cross said that he was
going to be examined by Dr. Cohen (R. St. ¶ 32, Cross Dep. 76-77). It
further appears that Dr. Cohen kept Cross off of work based on that
examination (R. St. ¶ 33).*fn5
On November 6 Dr. Bernstein examined Cross for a second time (R. St.
¶ 34). In a same-day letter to Pretzer, Dr. Bernstein said that Cross'
"physical examination reveals an almost hysterical display of discomfort"
and that Cross exhibited abnormal and contradictory responses (R. St.
¶ 35). Dr. Bernstein concluded that Cross' "objective findings do not
support his subjective complaints" and recommended that Cross be returned
to work (id.).
Cross did not return to work, though. Cross visited a number of other
physicians of his own choosing, all of whom, including Dr. Jagan Mohan,
kept him off work (R. St. ¶ 36). Plainly, then, there was a
difference of opinion as to the severity of Cross' condition among the
doctors who examined him, but a difference that is ultimately of no
significance to the outcome of this case.
Cross had been out of work for almost a year when on September 24, 1996
Dr. Mohan released him to return to work beginning two weeks later, with
the restriction that he was not to lift more than five to ten
pounds (R. St. ¶ 38). Cross faxed Dr. Mohan's note to Lassa, who told
Cross he was going to talk with Kalinoski to try to find a position for
Cross (R. St. ¶¶ 39-40).
Lassa then asked Kalinoski whether there were any positions that fit
within Cross' restrictions (R. St. ¶ 41). After Kalinoski reviewed
the available positions, he determined that none of them met Cross'
restrictions (R. St. ¶¶ 42-43) and told that to Lassa (R. St. ¶
Then later that month (October 1996) Lassa got in touch with a member
of Ryder's Human Resources Department, Robin Shaw ("Shaw"), to inquire
about the appropriate action in Cross' case (R. St. ¶ 47). After
Lassa spoke with Shaw on several occasions, and after some involvement by
Ryder's legal staff (R. St. ¶¶ 48-49), Lassa sent a standard form
letter to Cross on October 22 that stated in pertinent part (R. St.
Ryder's payroll records reflect that you have not been
on active status since October 19, 1995. It is Ryder's
policy to review the status of inactive employees
after one year and, where warranted, administratively
separate them from employment.
It is Ryder's understanding that you are unable to
perform the essential functions of your job, with or
without reasonable accommodation. If this information
is incorrect, please advise us no later than October
31, 1996. if [sic] we do not hear from you by this
date, your employment will be administratively
terminated at that time.
According to Cross, after he received the letter he called Lassa and
told him, "I can still do my job" (Cross Dep. 100).*fn6 Cross further
testified that in response to that call Lassa reminded him that the
letter had required Cross to provide additional medical information,
which he had not done (id. 100-01). Cross' efforts to persuade Lassa to
allow him to keep his job were unsuccessful, and Cross' termination
became effective on October 31 (R. St. ¶ 52).
At several points throughout Ryder's memoranda (see, e.g., R. Mem.11)
it claims that it fired Cross because of its "12 month policy": a written
policy that calls for the dismissal of any Ryder employee who has been
absent from work for over a year because of a work-related injury. Ryder
has characterized the 12 month policy as mandatory, one that is applied
But Cross disputes that, pointing to the policy's terms (R. Ex. Tab
Ryder policy allows an employee to be terminated if
disability exceeds 12 months. If the location is
contemplating terminating an employee collecting
Workers' Compensation "lost time" benefits, prior to
taking any action, the Supervisor must coordinate the
termination with the appropriate human resources
representative and the RSC Regional Claims Office.
It is true that the policy uses "allows rather than a term such as
`requires,' and other record evidence tends to confirm the idea of its