Customers buy a variety of products, items such a shingles, nails,
paneling or molding, which are unloaded by hand. In the case of shingles,
once delivered to a customer, the shingles would have to be unloaded from
the truck by manually stacking them down on the ground or on a pallet.
And, though items such as garage doors, gutters, steel and aluminum
normally take two people to unload, occasionally a Driver will have to
unload these items himself.
In sum, the most essential job function of both the Driver and
Warehouseman positions is the physical ability to handle, carry, and
stack items weighing up to 75 to 80 pounds, i.e., the physical ability to
do heavy lifting.
Second, Drivers/Warehousemen have to twist, bend, squat, and move about
too. Williams' job required twisting and bending, and lifting by
squatting. Once items are stacked on clean pallets, they are
shrink-wrapped. Shrink wrapping secures the items in place and involves a
lot of moving up and down the load to ensure it is bound by the wrap.
Third, a Driver, as was Williams, must be able to have the ability to
drive between 200 and 400 miles a day. In Williams' case, he would drive
800 miles in a typical week.
These essential functions for Drivers/Warehousemen positions were
committed to writing by Eastside in 1995 or 1996. Williams acknowledges
that Eastside's list accurately sets forth the essential job functions
B. The Injury And Initial Medical Treatment
In October, 1995, Williams was unloading vinyl siding and hurt his
back. Afterward, Williams received some initial medical treatment, which
culminated in the removal of two herniated discs by Dr. Sherwyn Wayne in
December, 1995. While recuperating from surgery, Dr. Wayne gave Williams
lifting restrictions and released him to go back to work. Eventually,
Dr. Wayne released Williams to full duty in July or August, 1996.
After three days of working at full duty, Williams asked to be returned
to light duty, which involved a 25-pound lifting restriction given by
another one of Williams' physicians, Dr. Parks. Assuming that William's
inability to go back to full duty was only temporary, Eastside assigned
Williams various light-duty tasks. For example, Eastside allowed
Williams to load drywall on trucks using a forklift and then to deliver
drywall to customers. This "drywall delivery" task required no manual
lifting and permitted Williams to work part-time, picking up some 20 to
30 hours a week.
Williams continued to see doctors to treat his back injury from 1996 to
1998, and in the fall of 1997, Williams started receiving vocational
rehabilitation as part of his workers' compensation benefits.
C. August 31, 1998 and September 1, 1998
On August 31, 1998, Williams was seen for the first time by Dr. Matthew
Gornet, a neurosurgeon. Dr. Gornet recommended Williams stop driving
because that could do further damage to his lower back. Williams told
Fran Whipps, his rehabilitation counselor, that as a result of his
medical condition, he did not think he should continue his job searching
activities. Whipps contacted Eastside. When Whipps contacted Eastside,
Eastside was unaware of any new injury, need for treatment, or
On September 1, 1998, Williams met with David Reis, Don Reis, Sr., and
Don Reis, Jr., of Eastside. At that time, Williams did not disclose Dr.
Gornet's recommendation that he discontinue driving for Eastside because
he thought it was
none of their business. That day, Williams was placed on inactive job
D. The Second Surgery, Current Medical Condition, And Functional
In November, 1998, in a two-part surgical procedure conducted over
several days, Dr. Gornet performed a back fusion operation on Williams.
In this procedure, Williams had titanium screws and hardware placed into
his back along with portions of his hipbone. As a result of this
surgery, Williams was further limited. Williams is (1) at high risk to
sustain further injury and disability if he returns to work as a Driver,
(2) medically restricted from lifting greater than 25 pounds, (3)
medically restricted from repetitive bending, (4) medically restricted
from bending from a squatting position, and (5) medically restricted from
repetitive twisting and turning.
Dr. Gornet's restrictions are accurate, valid, and now permanent.
Williams can lift only items weighing less than 25 pounds, and he
requires the assistance of a "lifting helper" if he wants to carry
anything over 25 pounds. Williams is unsure, given his restrictions,
whether he could do the shrink wrapping required to secure goods loaded
E. Events of April 5, 1999 and April, 6, 1999
On April 5, 1999, Williams returned to Eastside and presented a letter
from Dr. Gornet addressed to the attorney handling Williams' workers'
compensation claim stating:
Because of his type of work, I believe [Williams]
would be at high risk to sustain further injury and
disability if he returned to work as a truck driver.
Currently I would place the following restrictions on
him[:] no lifting greater than 25 pounds, no
repetitive bending, no bending from a squatting
position, [and] no repetitive twisting and turning.
According to Williams, he was asked to provide a statement of
restrictions or medical clearance indicating he could return to work.
On April 6, 1999, Dr. Gornet's office faxed a statement of restrictions
to Eastside, setting out essentially the same restrictions as in his
March, 1999, letter. According to Williams, when he came to Eastside
later that morning, he was given a letter advising him that he was
terminated because he could not perform the essential functions of his
F. Williams' Requested Accommodation
Williams admits he cannot perform the job of Driver/Warehouseman
without an accommodation. As an accommodation, Williams wants a permanent
light-duty job, consisting of delivering drywall and loading/unloading
only items that weigh less than 25 pounds or that are able to be lifted
with a forklift. There are no other accommodations Williams feels he
G. Eastside's Available Jobs In April, 1999
There is no job at Eastside with duties that require only drywall
delivery. While he was on light duty and was given the task of delivering
drywall, the most Williams could work was 20-30 hours a week. Some days
there is no drywall to haul. There is no one at Eastside who works a
40-hour week just delivering drywall. Drywall is just one task a truck
driver may be called upon to perform.
Williams' job as Driver/Warehouseman required that he be a union
member. The union jobs at Eastside were confined to driving or working in
the warehouse. Aside from union jobs, the only other jobs at Eastside,
are office jobs. No job vacancy,
union or non-union, existed at the time of Williams' discharge.
H. Williams' Complaints And Charges Against Eastside
Williams' displeasure with Eastside stems from three events: (1) not
getting enough work while on light duty between August, 1996 and the Fall
of 1998,*fn5 (2) being placed on inactive duty status on September 1,
1998, and (3) his April 6, 1999, termination.
On December 20, 1997, Williams filed a charge of discrimination,
claiming he had been denied work at Eastside that would accommodate his
disability. On March 25, 1999, Williams signed another charge of
discrimination against Eastside, this time claiming he was discriminated
against when he was placed on inactive duty status.
Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). A
genuine issue exists when "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Courts must view all evidence in
the light most favorable to the nonmoving party and draw all inferences
in the favor of that party. See id. at 255. If the nonmoving party
fails to establish the existence of an element essential to its case,
summary judgment is proper. See Celotex Corp. v. Catrett, 477 U.S. 317
(1986). Accordingly, the nonmovant must "come forward with specific
facts showing that there is a genuine issue for trial." Miller v.
American Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). It
is not, however, the task of the Court to "scour the record" in search of
a genuine issue because this Court relies on the nonmoving party to
identify, with particularity, the evidence that militates against summary
judgment. See Richards v. Combined Ins. Co. of America, 55 F.3d 247,
251 (7th Cir. 1995).
Williams advances three claims against Eastside: (1) an ADA failure to
accommodate claim, (2) an ADA retaliation claim, and (3) a state law
retaliatory discharge claim. This Court addresses each one in turn.
A. The ADA Failure To Accommodate Claim
Williams claims that Eastside failed to reasonably accommodate his bad
back. The ADA proscribes discrimination "against a qualified individual
with a disability because of the disability of such individual in regard
to job application procedures, the hiring, advancement, or discharge of
employees, . . . and other terms, conditions and privileges of
employment." 42 U.S.C. § 12112 (a). The ADA also provides that an
employer discriminates against a qualified individual with a disability
by "not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability. . .
." 42 U.S.C. § 12112 (b)(5)(A).
To state a prima facie case of "failure to accommodate" disability
discrimination, a plaintiff must first show that (1) he