for transition to full-time status. Accordingly, Plaintiff cannot
establish a prima facie case of discrimination for failure to promote.
Assuming arguendo that Plaintiff can establish a prima facie case of
discrimination for failing to promote him to a full-time bus operator,
Plaintiff would still need to prove that the CTA's proffered reason for
not promoting him was a pretext for discrimination. Plaintiff, however,
has presented no evidence on this score. As the Court noted supra, the
CTA followed the mandates of Section 3.6 of the 1996-1999 CTA-ATU
Collective Bargaining Agreement stipulating that part-time bus operators
are eligible to be considered for full-time bus operator positions on a
seniority basis. Moreover, based on the record, there is no evidence that
as of February 10, 2000 (Plaintiff's discharge date), any part-time bus
operator who had been hired on or after November 6, 1997 (Plaintiff's
entered service date) had been given the opportunity to transition to
full-time employment. Def.'s LR 56.1(a)(3) St. ¶ 18.
C. There Is No Evidence of a Conspiracy Involving Plaintiff's Drug Test.
Plaintiff argues that there was a conspiracy involving his drug test.
Pl.'s Mem. at 6. Specifically, Plaintiff alleges that Ms. McBride, the
collection site technician from SmithKline Beecham Clinical
Laboratories, did not follow proper collection procedures. Pl.'s LR 56.1
(b)(3)(A) ¶ 37. Plaintiff contends that the bottles were not sealed
in his presence and a foreign substance was poured into his sample. Id.
Tellingly, however, Plaintiff alleges that only Ms. McBride and Ms.
Jensen, the manager on duty, were present when he was subjected to his
drug test, and he does not know whether Ms. Jensen saw the outside tester
pour something into Plaintiff's urine sample. Pl.'s Dep. at 85, 97.
Therefore, among other things, there is simply no evidence that any CTA
management person involved in Plaintiff's discharge had any knowledge of
the "alleged" adulteration and, as such, no evidence whatsoever of any
conspiracy by the CTA involving Plaintiff's drug test exists in the
II. AMERICANS WITH DISABILITIES ACT CLAIM
Plaintiff in his Amended Complaint and deposition contended that the
CTA discriminated against him in violation of the ADA. See generally,
Am. Compl.; Pl.'s Mem.; & Pl.'s Dep. Accordingly, the CTA, in its summary
judgment brief sets forth various arguments to defeat the Plaintiff's ADA
claim(s), including that Plaintiff has provided no evidence with respect
to his ADA allegations. Def.'s Mem. at 4-10. Significantly, for the most
part, the Plaintiff's response brief herein is totally silent, and makes
no argument whatsoever, respecting the CTA's summary judgment arguments
as to Plaintiff's ADA claim(s),
The Americans With Disabilities Act ("ADA") prohibits an employer from
discriminating against a qualified individual with a disability. See
42 U.S.C. § 12112(a). Specifically, the ADA provides:
No covered entity shall discriminate 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, employee compensation, job
training, and other terms, conditions, and privileges
of employment. 42 U.S.C. § 12112(a). The term
"qualified individual with a disability" means an
individual with a disability who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such
individual holds or desires."
42 U.S.C. § 12111(8).*fn16
The term "qualified individual with a disability" means an individual
with a disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such
individual holds or desires." 42 U.S.C. § 12111(8).
In order to establish disability discrimination, a plaintiff must show
that (1) he is disabled within the meaning of the ADA; (2) he is
qualified to perform the essential functions of his job either with or
without reasonable accommodation; and (3) he suffered an adverse
employment decision because of his disability. Bekker v. Humana Health
Plan, Inc., 229 F.3d 662, 669-70 (7th Cir. 2000). Moreover, under the
ADA, an individual is disabled if he (1) has "a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual;" (2) has "a record of such an impairment;"
or (3) is "regarded as having such an impairment." 42 U.S.C. § 12102
(2); Bekker, 229 F.3d at 670; see also Schneiker v. Fortis Ins. Co.,
200 F.3d 1055, 1059-60 (7th Cir. 2000). The Supreme Court has recently
held that "substantially" in the phrase "substantially limits" suggests
"considerable" or "to a large degree" and that "major life activities"
refers to "those activities that are of central importance to daily
life." Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 122 S.Ct.
681, 691 (2002).
Under the ADA, an employee has two methods for establishing that his
employer discriminated against him based on his disability. See Cheek v.
Coal Co., 97 F.3d 200, 203 (7th Cir. 1996). First, an employee
"may present direct or circumstantial evidence that the employment
decision was motivated by the employer's discriminatory animus." Bellaver
v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000); see also DeLuca v.
Winer Inc., 53 F.3d 793, 797 (7th Cir. 1995). Second, an employee may
use the burden shifting method set forth in McDonnell Douglas to prove by
indirect evidence that his employer intentionally discriminated against
him. 411 U.S. at 802-805. See Deluca, 53 F.3d at 797.
A. Plaintiff Was Not Disabled and Did Not Provide The CTA with Medical
Support for the Need for an Accommodation and The CTA Dischargcd Plaintiff
Because He Tested Positive for Cocaine and Failed to Attend his Discipline
In his responsive brief herein, Plaintiff's only reference to his ADA
claim is in his introduction, wherein Plaintiff conclusorily asserts that
he was targeted for discharge because he had diabetes. Pl.'s Mem. at 2.
To abbreviate, then, the Court finds as a threshold matter that
Plaintiff has failed to establish a prima facie case for discrimination
under the ADA. See, e.g Bekker v. Humana Health Plan, Inc., 229 F.3d 662,
669-70 (7th Cir. 2000).
Plaintiff has presented no evidence to support his allegation that he
was disabled or that the CTA was aware of any limitation on his ability
to work. Plaintiff failed to present evidence that his Type II diabetes
is disabling; namely, that Plaintiff's diabetic condition substantially
limited any major life activity. See, e.g. Toyota Motor Manufticiuring
Kentucky, Inc., 122 S.Ct. at 691. Plaintiff was a part-time CTA bus
driver for over two years. Plaintiff never submitted medical
documentation to the CTA indicating that he had any type of medical
restriction concerning working hours or conditions, or that he needed any
type of accommodation. Realiza Aff. ¶ 8. In fact, Plaintiff's own
doctor, Dr. Pinakin Amin, provided the CTA's Medical Department with
notes indicating that Plaintiff was fit to work his job without any
medical restrictions. Realiza Aff. ¶ 7. Furthermore, although
Plaintiff stated in a generalized, unspecified way that he asked them if
he could work mornings, (Pl.'s Dep. at 83), Plaintiff never made an
accommodation request to the CTA's ADA Accommodation Committee or to the
CTA's Medical Department. Realiza Aff ¶¶ 8, 9.
In short, the Court finds that the Plaintiff has failed to establish a
prima facie case of disability discrimination. Even assuming arguendo that
Plaintiff could establish a prima facie case of disability
discrimination, the CTA has proffered a legitimate, nondiscriminatory
reason for not providing Plaintiff with accommodations; namely, that he
was not disabled and he never submitted medical documentation of an
impairment or the need for an accommodation. In the face of this, the
Plaintiff offered no evidence to meet his burden that the CTA's stated
reasons were a "pretext" for disability discrimination.
Finally, as stated, Plaintiff conclusorily alleges that the CTA
discriminated against him in violation of the ADA by terminating him on
February 10, 2000. Pl.'s Mem. at 2.
However, as demonstrated by the record, the CTA terminated Plaintiff
because he violated the CTA's rules and the CTA's Drug and Alcohol Policy
and Testing Program for Safety Sensitive Employees by testing positive
for cocaine metabolites and by failing to attend his discharge hearing.
Def.'s LR 56.1(a)(3) ¶¶ 40, 61. Moreover, there simply is no evidence
in the record
and the record clearly does not support a conclusion that
Plaintiff was terminated as a result of the CTA's alleged discrimination
against him based on his diabetes. Thus, Plaintiff has presented no
direct or circumstantial evidence that the CTA had any other reason for
terminating Plaintiff other than his positive drug test and failure to
attend his hearing.
The Court, therefore, finds that the CTA is entitled to summary
judgment on Plaintiff's above discussed ADA claims.
B. Plaintiff Was Not Entitled to Full-Time Employment Based on the CTA's
Plaintiff claimed in his deposition that the CTA discriminated against
him in violation of the ADA when he did not receive a promotion from a
part-time bus operator to full-time bus operator. Pl.'s Dep. at 121. In
order to prove that he was discriminated against based on his
disability, Plaintiff must first show that he is disabled under the terms
of the ADA.
First, as discussed supra, Plaintiff has failed to prove that he is
disabled and he cannot establish a prima facie case of disability
discrimination. In any event, the Court notes that there are no facts
that support Plaintiff's allegation that the CTA failed to transition
Plaintiff from part-time to full-time employment because of his
diabetes. In fact, Section 3.6 of the 1996-1999 CTA-ATU Collective
Bargaining Agreement stipulates that part-time bus operators are eligible
to be considered for available full-time bus operator positions on a
seniority basis (determined by an employee's "centered service date").
Def.'s LR 56.1(a)(3) ¶ 15. Therefore, based on the record there is
no evidence that as of February 10, 2000 (Plaintiff's discharge date)
that any part-time bus operator who had been hired on or after November
6, 1997 (Plaintiff's entered service date) had been given the opportunity
to transition to full-time employment. Id. ¶ 18.
In sum, the record clearly does not support a conclusion that Plaintiff
remained as part-time bus operator due to the CTA allegedly
discriminating against him based on his diabetes.
Based on the foregoing the CTA's motion for summary judgment is granted.