"regarded as" definition, which
requires him to demonstrate that Brach thought that his Grave's Disease
substantially limited a major life activity.
Blakely comes forward with three statements by Jalove at September 25,
1998, meeting to support his claim that Brach regarded him as disabled:
(1) an insensitive comment about facial disfigurement caused by his
disease; (2) a request for a doctor's note to support his claim that his
condition did not allow him to work more than eight hours a day; and (3)
a statement that Blakely should look for work in a less "stressful"
department. (1) When Blakely complained that co-workers were calling him
"dumb" and "stupid," Jalove asked him if he would consider it harassment
if they called him "handsome," implying that he was not. Blakely Aff.
¶ 8. (Bugling eyes, profuse sweating, and frowning or scowling are
side effects of Grave's Disease. Id.). This was cruel and insensitive,
and shows that Jalove was aware of Blakely's condition, but even drawing
all inferences in favor of Blakely, it does not support an inference that
Jalove believed that he was substantially limited in any major life
(2) When Blakely said that he was unable to work eight hour days in a
stressful environment because of his condition, Jalove asked him to
provide a doctor's note to verify the claim. Blakely Aff. ¶ 8. Blakely
says that the request for documentation, even when there was no pending
request for a reasonable accommodation, shows that he was perceived as
disabled, and he cites Tice v. Centre Area Transportation Authority,
247 F.3d 506 (3d Cir. 2001), in support. But Tice held, precisely to the
contrary, that a "request for a medical examination, standing alone, is
not sufficient to establish that the employer "regarded' the employee as
disabled." Id. at 508-509. Even so, the particular request here —
for proof that Blakely could not work eight hour days — does not
support an inference that Jalove believed he was substantially limited;
in fact, it supports the opposite inference: that Jalove wanted proof
because he did not believe that Blakely was limited.
(3) However, Jalove's comment that Blakely should seek work in a less
stressful department supports an inference that he believed Blakely was
limited somehow by his condition. Nevertheless, a mere limitation is not
enough to constitute a disability; there must be a substantial
limitation. "`[A]n inability to perform a particular job for a particular
employer' is insufficient to establish substantial limitation. Instead,
"the impairment must substantially limit employment generally.'" Sinkler
v. Midwest Property Mgmt. Ltd. P'ship, 209 F.3d 678, 685 (7th Cir. 2000)
(citations omitted) I need not reach the question of whether Jalove
regarded Blakely's limitation as substantial, however, because even if he
did, there is no evidence that Blakely's disability was a motivating
factor of his discharge. It is not enough that Jalove was aware of a
disability, even if he thought about it in discriminatory terms; the
termination must have been because of his disability. Foster v. Arthur
Andersen, LLP, 168 F.3d 1029, 1033 (7th Cir. 1999). Jalove' s statement
occurred nearly four months before Blakely was fired, and there is no
evidence that he repeated that sentiment, or still perceived Blakely as
disabled, when he was fired. "[C]ausation is one of the explicitly
articulated elements of a prima facie case of disparate treatment
disability discrimination," id. at 1032 n. 5, and without evidence to
support it, Blakely cannot survive summary judgment on his ADA claim.
V. Intentional Infliction of Emotional Distress
Brach argues that Blakely's state law claim for intentional infliction
distress is preempted by the Illinois Human Rights Act, 775
ILCS 5/8-111(c), see Krocka v. City of Chicago, 203 F.3d 507, 516-17
(7th Cir. 2000) (upholding dismissal of preempted claim under
Fed.R.Civ.P. 12(b)(6)), and that the Illinois Human Rights Commission has
exclusive jurisdiction over claims arising under the Act, Talley v.
Washington Inventory Serv., 37 F.3d 310, 311 (7th Cir. 1994) (citing Mein
v. Masonite Corp., 485 N.E.2d 312 (Ill. 1985)). Blakely does not
respond, so he has waived any argument in opposition. Arendt v. Vetta
Sports, Inc., 99 F.3d 231, 237 (7th Cir. 1996) (Failure to respond to
arguments in response to summary judgment motion results in waiver).
I GRANT Brach's motion for summary judgment on all claims.