United States District Court, Central District of Illinois, Urbana Division
December 5, 2001
ARRON THOMPSON, PLAINTIFF,
ARCHER DANIELS MIDLAND COMPANY AND ADM TRUCKING, INC., DEFENDANTS.
The opinion of the court was delivered by: McCUSKEY, District Judge
On September 7, 1999, Plaintiff, Arron Thompson, filed his First
Amended Complaint (#16) against Defendants, Archer Daniels Midland
Company (ADM) and ADM Trucking, Inc. Plaintiff claimed that he was
discriminated against in violation of the Americans with Disabilities Act
(ADA) (42 U.S.C. § 12101 et seq.). This case is before the court for
ruling on Defendants' Motion for Summary Judgment (#50) and Plaintiff's
Motion for Summary Judgment (#52). Following this court's careful and
thorough review of the documents presented by the parties and the
arguments of the parties, this court concludes that Plaintiff has not
presented sufficient evidence to show that he was disabled as defined in
the ADA. Accordingly, Defendants' Motion for Summary Judgment (#50) is
Plaintiff was hired as an over-the-road truck driver by ADM Trucking on
June 9, 1995. On August 14, 1995, approximately seven weeks later,
Plaintiff slipped on the steps of the tanker he was hauling. Plaintiff
did not fall, but hurt his back. Plaintiff's physician placed him off
work because of lumbar strain. On August 19, 1995, Plaintiff's doctor
imposed work limitations of one hour of driving per day and no lifting
over 30 pounds. On August 29, 1995, Plaintiff's doctor gave Plaintiff a
note which stated, "I have advised [Plaintiff] to change vocations due to
his back problem." Plaintiff called Jim Davis, who was the terminal
manager at that time, and told him he had been released for light duty.
Davis told Plaintiff that there was no light duty work available. On
September 19, 1995, and on October 26, 1995, Plaintiff's doctor gave
Plaintiff light duty releases which required no lifting over 25 pounds
and no more than one hour of driving per day. On December 20, 1995,
Plaintiff saw a different doctor who imposed a permanent restriction of
"[n]o lifting above 35 pounds except in extremely rare occasions with
limitation routinely to be set at 35 pounds or less. [Plaintiff] may
return to work on 12/27/95."
Plaintiff did not return to work at ADM Trucking. Davis testified that
truck drivers generally have to unload the products they haul and often
are required to lift a hose which weighs approximately 80 pounds which is
used for delivering liquid product. Sam Richardson, ADM Trucking's
assistant vice president of operations, testified that ADM Trucking did
not return Plaintiff to his job because it
determined that the permanent
35-pound lifting restriction was inconsistent with his job duties.
Richardson also testified that the other jobs available at ADM Trucking,
including wash bay, maintenance and fast lane positions, required lifting
more than 35 pounds. Plaintiff was granted a leave of absence with
benefits. Plaintiff also received worker's compensation benefits.
Plaintiff lost his seniority after 12 months of leave, pursuant to the
terms of the applicable labor agreement, and his employment was
On May 4, 1999, Plaintiff filed a Complaint (#1) in this court against
Defendant ADM. Plaintiff alleged that ADM discriminated against him on
the basis of his disability, in violation of the ADA. On July 16, 1999,
ADM filed a Motion to Dismiss (#8) arguing that Plaintiff was not
employed by ADM but was rather employed by ADM Trucking, a wholly owned
subsidiary of ADM. On August 20, 1999, this court entered an Order (#15)
which denied ADM's Motion to Dismiss and allowed Plaintiff leave to file
an amended complaint adding ADM Trucking as an additional party. On
September 7, 1999, Plaintiff filed his First Amended Complaint (#16)
against ADM and ADM Trucking. Plaintiff alleged that ADM is liable
because it is the alter ego of ADM Trucking.
As part of discovery in this case, Plaintiff's deposition was taken on
August 29, 2000. Plaintiff testified that he had back surgery in 1980 and
1991. He testified that he is limited in bending forward and cannot bend
over to tie his shoes. He was asked if there were any other physical
activities that he could not perform and responded, "With my activities
that I do, that would probably be about it." He testified that he does
not know if he still has a lifting restriction and stated that he
sometimes lifts more than 35 pounds. He stated that he is able to lift
his daughters, who weigh 35 and 50 pounds. Plaintiff testified that he
is cautious about what he does, and does not participate in sports
because of that caution. However, he stated that he "really [hasn't]
given up anything." He testified that he drives and is able to take care
of himself. He stated that he takes a walk every evening and rides a
bike with his son once or twice a week.
Plaintiff testified that he believed he could have performed his job
duties at ADM Trucking "with a reasonable time to heal." He stated that
he thought he could have done the job a few weeks after his injury.
Plaintiff testified that, after leaving ADM Trucking, he purchased his
own semi-truck. In August 1997, he accepted a position as a driver for
JMH Trucking. In his position as a driver for JMH Trucking, he drove
between Tazewell County and Chicago, Illinois, two times per day. He was
employed there until April 1998. In April 1998, Plaintiff went to work
as a driver hauling grain and rock for Dan Wetstein, a central Illinois
farmer. Plaintiff testified that there was some lifting involved in
performing these jobs, but not heavy lifting. In May and June 1998,
Plaintiff worked as a truck driver for Don Lefler hauling grain. In
August 1998, Plaintiff went to work as a truck driver for Krumholz
Trucking in Eureka, Illinois, hauling rock and grain. He drove for
Krumholz Trucking for approximately one year.
On October 5, 2000, after the deposition was taken, Plaintiff filed a
supplement to his response to Defendants' Interrogatory No. 3 which asked
him to identify the major life activities in which he claimed he was
substantially impaired. His previous response stated that he "suffered
Lumbar strain and was subsequently diagnosed with Degenerative Lumbar
Spine Disease, restricting his ability to lift over 35 pounds."
In his supplemental response, Plaintiff stated:
Plaintiff's medical condition restricts his ability at
times from getting out of bed, having normal sexual
relations with his spouse, participating in many
physical endeavors including but not limited to those
with his children, standing, sitting, walking and
performing daily household tasks.
Plaintiff's condition causes him to take longer to
dress in the morning because he is not able to bend
and move as easily as a normal person. On some
occasions he needs assistance in putting his shoes and
socks on. His condition also disturbs his sleep as
well as his ability to have normal bowel movements on
a daily basis.
On November 28, 2000, Defendants took a further deposition of Plaintiff
to question him about this supplemental response. Plaintiff testified
that there were occasions when he had trouble getting out of bed due to
pain. On those occasions, he does stretching exercises before getting
up. He testified that there were times when it was difficult for him to
get out of bed for a couple of weeks.*fn1 Plaintiff testified that, on
the occasions where he had difficulty getting out of bed, it took him "a
few minutes" to get out. Plaintiff also testified that there have been a
few occasions when it was too painful for him to walk. Plaintiff
testified that he does not do household chores such as moving furniture
or cleaning that requires him to bend or be on his knees. He testified
that he cuts the grass occasionally and has done some painting.
On March 16, 2001, Defendants filed their Motion for Summary Judgment
(#50). Defendants argued that Plaintiff's ADA claim fails because: (1)
Plaintiff did not have a "disability" because his back problems did not
substantially limit him in any major life activity; (2) Plaintiff was not
a "qualified individual with a disability" because he could not perform
the essential functions of an over-the-road driver; and (3) Plaintiff
cannot prove that his employer failed to provide him with a reasonable
accommodation where he received a 12-month medical leave of absence with
benefits. Defendants also argued that ADM cannot be liable for any
violation of the ADA because ADM never employed Plaintiff. Defendants
also filed a Memorandum of Law and Exhibits (#51) in support of their
Motion for Summary Judgment. Defendants were later allowed to file a
Supplemental Statement of Undisputed Facts (#61).
On March 19, 2001, Plaintiff filed his Motion for Summary Judgment
(#52). Plaintiff sought summary judgment on the limited issue of whether
ADM has joint liability with ADM Trucking for discriminatory conduct
under the ADA. Both Motions for Summary Judgment are now fully briefed
and ready for ruling.
I. SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317
, 322-23 (1986). In ruling on a motion for summary
judgment, a district court has one task and one task only: to decide,
based upon the evidence of record, whether there is any material dispute
of fact that requires a trial. Waldridge v. American Hoechst Corp.,
24 F.3d 918
, 920 (7th Cir. 1994). Because the purpose of summary
judgment is to isolate and dispose of factually unsupported claims, a
plaintiff must respond to the defendant's motion with evidence setting
forth specific facts showing that there is a genuine issue for trial.
Michael v. St. Joseph County, 259 F.3d 842
, 845 (7th Cir. 2001). 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."
Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687
, 692 (7th
Cir. 2000), quoting Pipitone v. United States, 180 F.3d 859
, 861 (7th
Cir. 1999). In making this determination, the court must consider the
evidence in the light most favorable to the party opposing summary
judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144
, 158-59 (1970).
However, to successfully oppose a motion for summary judgment, a
plaintiff must do more than raise a "metaphysical doubt" as to the
material facts, and instead must present definite, competent evidence to
rebut the motion. Michael, 259 F.3d at 845.
II. DISABILITY UNDER THE ADA
To establish disability discrimination in violation of the ADA,
Plaintiff must show: (1) he is disabled within the meaning of the ADA;
(2) he is qualified to perform the essential functions of the job either
with or without reasonable accommodation; and (3) he suffered from an
adverse employment action because of the disability. Moore v. J.B. Hunt
Transport, Inc., 221 F.3d 944, 950 (7th Cir. 2000). Plaintiff's
"threshold burden" is to establish that he is disabled as that term is
defined in the ADA. Moore, 221 F.3d at 950; Huizenga v. Elkay Mfg., 2001
WL 640973, at *3 (N.D.Ill. 2001).
The ADA designates three separate categories of disability: "(A) a
physical or mental impairment that substantially limits one or more of the
major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment."
42 U.S.C. § 12102(2); Moore, 221 F.3d at 950. If Plaintiff's
condition does not rise to the level of a disability as defined by the
ADA, he cannot prevail on his ADA claim even if Defendants terminated him
expressly because of his condition. Moore, 221 F.3d at 950. An ADA
claimant must specify which major life activity has been limited and only
those grounds specifically raised will be considered by this court. See
Sinkler v. Midwest Prop. Management Ltd. P'ship, 209 F.3d 678, 683 (7th
Here, in his Response to Defendants' Motion for Summary Judgment,
Plaintiff claims that he is actually disabled under subsection (A) of
§ 12102(2) because his back condition is a physical impairment that
limits the major life activity of lifting and the major life activity of
working. Plaintiff also claims that Defendants perceived his back
condition as disabling under subsection (C) of § 12102(2). This
court agrees with Defendants that the evidence falls far short of
establishing a genuine issue of material fact as to either of Plaintiff's
A. ACTUAL DISABILITY
Plaintiff first argues that his back condition, degenerative lumbar
spine disease, substantially limits the major life activity of lifting.
Major life activities are
"functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working." 29 C.F.R. § 1630.2(i). This list is not
exhaustive, and other major life activities include "sitting, standing,
lifting, reaching." 29 C.F.R. Pt. 1630, App. § 1630.2(i) (2001); see
also Wolz v. Deaton-Kennedy Co., 2001 WL 699096, *6 (N.D.Ill. 2001);
Stone v. Sangamon County Sheriff's Dept., 168 F. Supp.2d 925, 931
(C.D.Ill. 2001). A condition "substantially limits" a major life
activity if the afflicted person is "either unable to perform, or
significantly restricted as to the condition, manner or duration under
which the individual can perform, a major life activity as compared to an
average person in the general population." Ryan v. St. Mary of
Providence, 2001 WL 1143249, at *1 (N.D.Ill. 2001), quoting Davidson v.
Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998).
In this case, the evidence shows that Plaintiff has been restricted
from lifting more than 35 pounds because of his back condition.
However, Plaintiff testified that he does lift his daughters, who weigh
35 and 50 pounds. He also testified that he has performed jobs which
require some lifting. This court concludes that the evidence is not
sufficient to raise a genuine issue of material fact regarding whether
Plaintiff is "significantly restricted" in his ability to lift when
compared to an average person in the general population. See Hempstead
v. Rockford Hous. Auth., 2001 WL 1380514, at *3 (N.D.Ill. 2001) (evidence
of 25-pound lifting restriction, without more, is insufficient to
establish that the plaintiff is substantially limited in a major life
activity); Kause v. Alberto-Culver Co., 1999 WL 756131, at *6 (N.D.Ill.
1999) (30-pound weight restriction insufficient to constitute a
As noted, Plaintiff also argues that his back condition substantially
limits the major life activity of working. Plaintiff primarily relies on
Thompson v. Dot Foods, Inc., 5 F. Supp.2d 622 (C.D.Ill. 1998).
In discussing the major life activity of working, "substantially
limits" means the individual is significantly restricted in the ability
to perform a class of jobs or a broad range of jobs in various classes.
Contreras v. Suncast Corp., 237 F.3d 756, 762 (7th Cir. 2001), cert.
denied, 122 S.Ct. 62 (2001). "Thus an individual is not substantially
limited in working just because he or she is unable to perform a
particular job for one employer, or because he or she is unable to perform
a specialized job or profession requiring extraordinary skill, prowess or
talent;" instead, "the impairment must substantially limit employment
generally." Contreras, 237 F.3d at 762, quoting 29 C.F.R. Pt. 1630,
App. § 1630.2(j) (1999). Therefore, a plaintiff has the burden of
presenting evidence to demonstrate that his impairment limited his ability
to perform an entire class of jobs. Contreras, 237 F.3d at 762-63. This
"inquiry is an individualized one: whether this plaintiff's impairment
constitutes a significant barrier to his employment." Moore, 221 F.3d at
In Thompson, the plaintiff was restricted from lifting more than 50
pounds and had a written statement from his physician which stated that
switching the plaintiff, long term, to a more sedentary work status would
be in his best interest. Based upon this evidence, the district court in
that case determined that the plaintiff had shown that he was
significantly restricted in performing a class or broad range of jobs.
Thompson, 5 F. Supp.2d at 626. The court stated that, given the
plaintiff's work restriction, "he could no longer perform the essential
functions of an
over-the-road truck driver, not only for Dot Foods, but
for any employer." Thompson, 5 F. Supp.2d at 626. The court granted
summary judgment for the defendant, however, because it concluded that
the plaintiff could not, even with a reasonable accommodation, do the job
for which he was hired. Thompson, 5 F. Supp.2d at 626-27. Moreover, the
district court specifically noted that the Fourth and Eighth Circuits had
ruled that a lifting restriction did not constitute a significant
restriction on one's ability to lift, work, or perform any major life
activity. Thompson, 5 F. Supp.2d at 626, citing Williams v. Channel
Master Satellite Sys, Inc., 101 F.3d 346, 349 (4th Cir. 1996); Aucutt v.
Six Flags Over Mid-America, 85 F.3d 1311, 1319 (8th Cir. 1996). The
court noted that the Seventh Circuit had not adopted a similar position
but stated that, obviously, "if the Seventh Circuit were to adopt the
Fourth and Eighth Circuit's position, [the plaintiff] would not be
disabled as defined by the ADA, and his claim would end here."
Thompson, 5 F. Supp.2d at 626 n. 12.
Unfortunately for Plaintiff, the Seventh Circuit has recently adopted
this position. In Contreras, the plaintiff contended that he was
substantially limited in the major life activity of working because he
was unable to lift in excess of 45 pounds for a long period of time, was
unable to engage in strenuous work and was unable to drive a forklift for
more than four hours a day. Contreras, 237 F.3d at 763. The Seventh
Circuit stated that "other circuits faced with similar sets of facts have
found those limitations do not qualify as a substantial limitation on
working (and thus a disability under the ADA)." Contreras, 237 F.3d at
763. The Seventh Circuit concluded that the district court was correct
to reject the plaintiff's claim that he was substantially limited in the
major life activity of working. Contreras, 237 F.3d at 763.
The Court in Contreras specifically cited Williams and Aucutt. The
Court noted that the Court in Williams held as a matter of law that a
"twenty-five pound lifting limitation — particularly when compared
to an average person's abilities — does not constitute a
significant restriction on one's ability to lift, work, or perform any
other major life activity." Contreras, 237 F.3d at 763, quoting
Williams, 101 F.3d at 349. The Court further noted that the Court in
Aucutt held that the plaintiff failed to show he was substantially
limited in major life activities where "a 25-pound lifting restriction
was the only medical limitation placed upon [plaintiff's] activities."
Contreras, quoting Aucutt, 85 F.3d at 1319. The Court in Contreras also
relied upon similar holdings in Ray v. Glidden Co., 85 F.3d 227, 228-29
(5th Cir. 1996), and Wooten v. Farmland Foods, 58 F.3d 382, 384, 386 (8th
In this case, the evidence shows that Plaintiff was given a permanent
restriction on lifting more than 35 pounds. There is no evidence of any
other restriction on Plaintiff's ability to work. Based upon Contreras,
this evidence is insufficient to show that he was substantially limited
in the major life activity of working. Plaintiff's reliance on the
holding in Thompson is clearly misplaced based upon the recent contrary
holding by the Seventh Circuit in Contreras. Based upon Contreras, a
plaintiff's weight restriction and restriction from strenuous work,
standing alone, is not sufficient to demonstrate that the plaintiff was
precluded from a broad class of jobs. Andrews v. College Bd., 2001 WL
1000724, at *7 (N.D.Ill. 2001); see also Cole v. Mead Packaging Div. of
Mead Corp., 2001 WL 290612, at *9-10 (N.D.Ill. 2001); O'Rourke v. Roadway
Express, Inc., 2000 WL 1209423, at *3 (N.D.Ill. 2000); Tripodi v. Bill
Kay Old's Honda, 1999 WL 299901, at *5 (N.D.Ill. 1999).
Plaintiff argues, however, that a genuine issue of material fact exists
regarding whether he is substantially limited in the major life activity
of working because the evidence shows that, on August 29, 1995, his
doctor advised him to change vocations because of his back problem. In
Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997), the plaintiff worked
as a truck driver and injured his knee. The Seventh Circuit found that
there were enough facts to raise a genuine issue of fact on the impact of
the plaintiff's knee injury on the major life activity of working.
Best, 107 F.3d at 548. The Court specifically relied upon the fact that
the plaintiff's doctor recommended that the plaintiff consider
alternative work duties on a full time basis for the future. Best, 107
F.3d at 548. However, the court also relied upon other facts, including
the fact that the defendant's plant manager told Plaintiff that he should
find another line of work. Best, 107 F.3d at 548. Moreover, in this
case, the doctor's recommendation was made shortly after the injury
occurred. As time went on, the only permanent restriction imposed on
Plaintiff was the restriction on lifting more than 35 pounds. This court
concludes that this very specific restriction is not sufficient "to show
that his back injury limits his ability to engage in a class of jobs."
Contreras, 237 F.3d at 763 n. 5. This court concludes that this is "not
one of the rare cases in which [Plaintiff's] impairments are so severe
that [his] substantial foreclosure from the job market is obvious." See
EEOC v. Rockwell Int'l Corp., 243 F.3d 1012, 1017 (7th Cir. 2001); Ryan,
2001 WL 1143249, at *4.
Plaintiff's cause is also undermined by the fact that he subsequently
obtained employment as a truck driver. See O'Rourke, 2000 WL 1209423, at
*3; see also Sinkler, 209 F.3d at 685-86 (facts in the record
demonstrated that a broad range of jobs remained open to the plaintiff
where she was able to find a job in the same line of work after her
discharge); Wolz, 2001 WL 699096, at *6 (plaintiff's own job history
suggested she was not precluded from a broad range of jobs). Moreover,
Plaintiff's argument is further undermined by his testimony that he was
able to perform his job at ADM Trucking several weeks after his injury.
See O'Rourke, 2000 WL 1209423, at *3 (plaintiff admitted he was not
precluded from performing any jobs as a result of his permanent work
restrictions); Puoci v. City of Chicago, 81 F. Supp.2d 893, 897
(N.D.Ill. 2000) (plaintiff's admission that he was able to perform the
duties of his job undermined his argument that he was substantially
limited in the major life activity of working).
For all of the reasons stated, this court concludes that Plaintiff has
not shown that he was actually disabled under subsection (A) of
42 U.S.C. § 12102(2).
B. "REGARDED AS" DISABLED
Plaintiff also argues that Defendants regarded Plaintiff as disabled by
denying him an opportunity to return to his job as a result of his back
injury. Plaintiff therefore contends that he is disabled under
42 U.S.C. § 12102(2)(C). The Interpretive Guidance to the
regulations implementing § 12102(2)(C) state:
[A]lthough an individual may have an impairment that does not in fact
substantially limit a major life activity, the reaction of others may
prove just as disabling.
[I]f an individual can show that an employer or other
covered entity made an employment decision because of
a perception of disability based on "myth, fear or
stereotype," the individual may satisfy the "regarded
as' part of the definition of disability.
Moore, 221 F.3d at 953-54, quoting 29 C.F.R. Pt. 1630, App. §
1630.2(l) at 352 (1999). Therefore, in order for Plaintiff to fall
within the language of § 12102(2)(C), it is not enough for Plaintiff
to show that Defendants were aware of his impairment, he must show that
Defendants knew of the impairment and believed he was substantially
limited because of it. Moore, 221 F.3d at 954. The Seventh Circuit has
Even if [the employer] had fired [the plaintiff]
because of his injury, he would not necessarily have a
claim under the ADA. "The Act is not a general
protection of medically afflicted persons. . . . [I]f
the employer discriminates against them on account of
their being (or being believed by him to be) ill, even
permanently ill, but not disabled, there is no
Moore, 221 F.3d at 954, quoting Harrington v. Rice Lake Weighing Sys.,
Inc., 122 F.3d 456, 460 (7th Cir. 1997).
In this case, Plaintiff has only presented evidence that Defendants
knew about his back injury and subsequently terminated his employment.
Plaintiff has not presented this court with any evidence that Defendants
perceived him as impaired in performing a broad range of jobs in various
classes, or substantially limited regarding any other major life
activity. See Moore, 221 F.3d at 954. As in Moore, the record here
reflects that Defendants' actions were a response to a specific
restriction imposed by Plaintiff's doctor and were not based upon myth,
fear or stereotype. See Moore, 221 F.3d at 954. In light of the
permanent restriction imposed restricting Plaintiff from lifting more than
35 pounds, Defendants simply determined that Plaintiff could no longer
perform the job of over-the-road driver at ADM Trucking. See Moore, 221
F.3d at 954-55. The evidence was not sufficient to show that Defendants
perceived Plaintiff as being precluded from a wide range of jobs and was
not sufficient to show that Defendants regarded Plaintiff as disabled.
See Moore, 221 F.3d at 955; Sinkler, 209 F.3d at 687; Hempstead, 2001 WL
1380514, at *3; O'Rourke, 2000 WL 1209423, at *4. Accordingly, based
upon Moore, Plaintiff has not shown that he is disabled for purposes of
the ADA. See Moore, 221 F.3d at 955.
Because Plaintiff has failed to establish the first element of his
prima facie case, that he was disabled withing the meaning of the ADA, he
is not entitled to recover under the ADA. See Amadio, 238 F.3d 919, 929
(7th Cir. 2001); Moore, 221 F.3d at 950; Stone, 168 F. Supp.2d at 932.
Accordingly, Defendants are entitled to summary judgment on Plaintiff's
claim. Therefore, Plaintiff's Motion for Summary Judgment seeking
summary judgment on the issue of ADM's joint liability under the ADA is
IT IS THEREFORE ORDERED THAT:
(1) Defendants' Motion for Summary Judgment (#50) is GRANTED.
(2) Plaintiff's Motion for Summary Judgment (#52) on the limited issue
of ADM's liability is therefore MOOT.
(3) This case is terminated. The parties shall be responsible for
their own court costs.