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United States District Court, Northern District of Illinois, Eastern Division

December 26, 2001


The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge.


Kathryne Cebertowicz ("Cebertowicz") has charged her former employer Motorola, Inc. ("Motorola") with discriminating against her in violation of the Americans with Disabilities Act ("Act," 42 U.S.C. § 12101-12117). Cebertowicz' Equal Employment Opportunity Commission ("EEOC") charge, attached to and made a part of her Complaint, alleged that Motorola had breached the Act by denying her a reasonable accommodation that would have allowed her to continue working as a Cellular Operator in spite of her asserted disability.

Motorola moved for summary judgment under Fed. R. Civ. P ("Rule") 56, and both sides have complied with this District Court's LR 56.1.*fn1 For the reasons contained in this memorandum opinion and order, Motorola's motion is granted and this action is dismissed.

Summary Judgment Standards

Familiar Rule 56 principles impose on Motorola 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 (7th 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 with any summary judgment motion, this Court accepts nonmovant Cebertowicz' version of any disputed facts so long as that version is supported by record evidence. But assertions made in the affidavit that Cebertowicz submitted with her response to the motion are not sufficient to create genuine issues of material fact when they contradict her deposition testimony and are unsupported by any specific evidence (Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998)). What follows in the Facts section is culled from the parties' submissions.


Cebertowicz was hired by Motorola in January 1995 to work as a Cellular Operator at its Libertyville, Illinois facility (M. St. ¶ 2). In that position she performed various functions related to the assembly and packaging of new cellular telephones, including soldering wires onto the control panels, placing "flips" onto the telephones and inspecting and testing the assembled telephones (id.).

On December 13, 1996 Cebertowicz saw an allergist, who diagnosed her with allergic rhinitis and bronchial asthma (M. St. ¶¶ 10, 14). Cebertowicz' symptoms included congestion, sneezing, headaches and itchy eyes, nose and ears (M. St. ¶ 10). To treat those symptoms, her doctor prescribed a combination of medication and environmental controls (M. St. ¶ 19). And to assess the efficacy of those measures, her doctor conducted regular "peak flow" tests that measured her lung function after use of an inhaler. From December 1996 through April 1997 her test results ranged from 94.4% to 100.1% of the lung function that would be expected if she had no allergies or asthma (M. St. ¶¶ 13, 20-26) (a peak flow of 94.4% or higher is considered "well controlled") (M. St. ¶ 13). There was no indication during that period that Cebertowicz was limited in her ability to function, either at work or otherwise (M. St. ¶¶ 23-26). She never missed any work due to her symptoms (M. St. ¶¶ 28).

In May 1997 Cebertowicz reported to her doctor that her medication seemed "generally effective" except when she was at work where she was "exposed to fine dust and some odors" (M. St. ¶ 27). Based on Cebertowicz' subjective report that she was continuing to experience symptoms when at work, her doctor recommended that she use a respirator mask while working (M. St. ¶ 28).

Sometime after that appointment Cebertowicz asked that Motorola provide a mask for her to wear at work (M. St. ¶ 29). Motorola then communicated with her physician several times to obtain additional information about her medical condition (id.). At Motorola's request Cebertowicz saw a second physician, who reported that if factory air quality could not be monitored, Cebertowicz would benefit from either a protective mask or a transfer to a cleaner environment (C. St. ¶¶ 3-4).

Motorola declined to provide Cebertowicz with a mask (though it would have permitted her to buy and use one herself), instead allowing her to choose a transfer to an alternate duty position in the finance department effective October 29, 1997 (M. St. ¶ 35). Cebertowicz was satisfied with that transfer, which she considered to be a "reasonable accommodation" (M. St. ¶ 36). While working in that alternate position, Cebertowicz experienced a significant reduction in her symptoms and was able to perform that job comfortably (id.). With the exception of a brief period in December 1997 when she experienced problems due to increased dust mite allergens in the winter, her allergies and asthma were "well controlled" throughout her time in that position (M. St. ¶¶ 37-40, 42)

On February 4, 1999 Cebertowicz' alternate duty position ended (M. St. ¶ 41).*fn2 That was the last day of her employment with Motorola (id.).*fn3 After she left Motorola Cebertowicz' symptoms remained well controlled, with the exception of brief episodes of heartburn that occurred after she ate spicy foods (M. St. ¶¶ 43, 45-47). Indeed, from the time that Cebertowicz was diagnosed with allergies and asthma in December 1996 through her most recently documented doctor's visit in 2001, her physician has found her symptoms to be mild, in no way impairing her ability to function either at work or outside of work (M. St. ¶ 48).

On March 15, 1999 Cebertowicz filed a charge of discrimination with EEOC, alleging that Motorola discriminated against her in violation of the Act by refusing to grant her a reasonable accommodation for her claimed disability. After she received a right to sue letter, she timely filed this action.*fn4

Cebertowicz' Claim

Both Cebertowicz' EEOC charge and her Complaint ¶ 9 asserted that her allergies and asthma constituted a disability within the meaning of the Act. But Cebertowicz' response to Motorola's Rule 56 motion has abandoned that claim, failing to advance any argument that she qualifies as disabled under the Act.*fn5 Instead she now contends — from the very outset of, and throughout, her responsive Memorandum of Law — that Motorola regarded her as disabled and discriminated against her because of that misapprehension. That maneuver fails for several reasons.

First, it is a new issue that was not raised in her Complaint.*fn6 In effect Cebertowicz has attempted to amend her — Complaint — and after the close of discovery, at that — through arguments that she makes in her brief in opposition to summary judgment. That is not permitted (see, e.g., Insolia v. Philip Morris Inc., 216 F.3d 596, 606 (7th Cir. 2000); Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)).*fn7

But even if Cebertowicz' contention of being "regarded as" disabled is viewed as properly before this Court, she cannot surmount the other obstacles that block her path here. They independently defeat her claim under the Act.

For one thing, no evidence supports Cebertowicz' new argument that Motorola regarded her as disabled. Though she points to Motorola's having transferred her to an alternate duty position, that action alone is insufficient to defeat summary judgment. At most the transfer supports a conclusion that Motorola believed Cebertowicz was unable to work as a Cellular Operator in its factory. Cebertowicz provides no evidence that Motorola regarded her impairment as preventing her from working in a broad class of jobs, the Act's standard (Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999); Webb, 230 F.3d at 998). There is therefore no genuine issue of material fact that separates the parties on that score.

Finally, even if there were sufficient evidence of a genuine dispute between the parties about whether or not Motorola regarded Cebertowicz as disabled, that issue is simply not "material" for summary judgment purposes. Cebertowicz' entire case revolves around Motorola's alleged failure to provide the accommodation of a respirator mask that she contends would have permitted her to continue working in the factory. At no time — in her EEOC charge, her Complaint or her briefs — has she alleged any other discrimination against her. But because Cebertowicz was not in fact disabled, this Court joins those courts that have held an employer has no duty under the Act to provide a viewed-as-disabled (but not actually disabled) employee with any accommodation (see Weber v. Strippit, Inc., 186 F.3d 907, 917 (8th Cir. 1999); Newberry v. East Texas State Univ., 161 F.3d 276, 280 (5th Cir. 1998;).*fn8

Whether Motorola regarded Cebertowicz as disabled or not is thus irrelevant. Cebertowicz' failure-to-accommodate claim fails as a matter of law.


In sum, Cebertowicz' claim fails for a number of reasons. With there being no genuine issue of material (that is, outcome determinative) fact, Motorola is entitled to a judgment as a matter of law. Its Rule 56 motion is granted, and this action is dismissed with prejudice.

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