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Dvorak v. Mostardi Platt Associates

May 10, 2002


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 8461--Paul E. Plunkett, Judge.

Before Easterbrook, Diane P. Wood, and Williams, Circuit Judges.

The opinion of the court was delivered by: Diane P. Wood, Circuit Judge

Argued September 19, 2001

Kevin Dvorak was employed by Mostardi Platt Associates, Inc. (Mostardi-Platt) from 1989 until the spring of 1997. Throughout those years, he suffered from arthritis. Dvorak's arthritic pains would come in flare-ups; there were periods during which he was able to function quite well, and other times when his mobility was significantly restricted. In 1997, during one of the flare-ups, Dvorak missed work for a substantial number of days. Shortly thereafter, he was terminated. Believing that he lost his job because of his physical disability, he filed suit against Mostardi-Platt, alleging that he had been terminated in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12101 et seq. The district court entered summary judgment in favor of Mostardi-Platt. Although it found that Dvorak was an individual with a disability as defined by 42 U.S.C. sec. 12102(2) and that genuine issues of fact existed as to whether he was qualified to perform his job with or without a reasonable accommodation, it concluded that he was terminated for reasons unrelated to his disability, and therefore had no claim under the ADA. We affirm.


Mostardi-Platt is a company that provides professional environmental consulting, compliance, and testing services. Initially hired as one of its technicians, Dvorak eventually became a Service Manager in the Clean Emissions Monitoring department (referred to as the CEM Services Group). In this position, he performed administrative work and was occasionally required to conduct field work, such as on-site visits to clients and supervision of the monitoring being performed at various facilities. (Dvorak disputes the prominence of field work among his duties, but the percentage of time he devoted to it, as opposed to the fact that field work was one component of the job, is not important.) In 1996 and 1997, Dvorak experienced health problems in connection with his arthritis that led him to take a large number of days off from work. By March 1997, he had run out of sick leave days and had to take two weeks of vacation time to undergo arthroscopic surgery on his knee. This was unusual: the last time his arthritis had affected him so strongly had been 15 years earlier.

When he returned to work after the surgery, Dvorak's supervisor, Joseph Macak, asked him to go to Peoria the fol lowing week for a field assignment. Dvorak refused, citing his arthritis and the fact that he would still be on crutches from the operation at that time, and relying on a doctor's note following the operation that effectively confined him to desk work. Dvorak also informed Macak that the doctor had concluded that Dvorak had a particularly severe form of arthritis called ankylosing spondylitis (AS). It is unclear-- though irrelevant for present purposes--whether any doctor ever so concluded. Although Dvorak was never ultimately diagnosed with this ailment, as opposed to a less severe form of spondyloarthopathy, we mention his allegation only in the interest of presenting the facts in the light mostfavorable to him.

In early March 1997, before Dvorak took his leave for the operation, Macak asked him to prepare a memorandum outlining his views on how to improve results in the CEM Services Group. This request reflected concerns about the productivity of that Group on the part of both Robert J. Platt, the company's president and sole shareholder, and Macak. Dvorak turned in the requested memorandum on April 1, 1997. It was not what Macak expected. The memorandum itself is in the record, and its tone is hardly constructive. Among other things, Dvorak wrote:

I want to start out be [sic] reiterating my definition of insanity. Insanity is doing the same thing you have always done and expecting things to change! Mostardi Platt has developed a new definition. Mostardi Platt is doing less today then [sic] it has ever done and is expecting things to change. On the top of everything else every time we turn around we are burdened with tasks that make us less efficient.

In short, the memorandum read more like a tirade against the company than like a constructive proposal for improving work unit performance.

Company management met shortly after Dvorak delivered the memorandum to consider the situation as a whole: his disability, his performance, and his attitude. They decided it would be best for Dvorak to be placed on temporary med ical leave under the Family and Medical Leave Act (FMLA) program. On April 3, 1997, Dvorak was summoned to a meeting with management to discuss, among other things, the option of FMLA leave. Dvorak resisted the idea, claiming that he could do his job and thus that medical leave was not appropriate. Just the previous day, however, he had written Macak stating that he "may never be able to do the same kind of physical work" that he had "been able to do in the past." At the end of the meeting, it became clear that the leave arrangement was not optional. Platt, Macak, and a third company official told Dvorak that he had to leave the building that very day. Macak accompanied him as he packed up his personal belongings from his office and departed. Although Dvorak characterizes this event as his termination, he admits that it was not the last of his dealings with Mostardi-Platt.

After his departure, the company sent him documents to aid him in his application for FMLA leave. Initially, he took steps toward completing the required forms. While Dvorak was in the process of applying for medical leave, Mostardi-Platt discovered that a laptop Dvorak had used had been tampered with, that a customer database had been improperly saved on its hard drive, and that the computer had been used for personal purposes, including the sending of communications to a competitor that were derogatory of Mostardi-Platt. The company made efforts to discuss the matter with Dvorak, but Dvorak was uncooperative. He refused even to meet to discuss the alleged misuse of the laptop. Dvorak continued, however, to communicate in writing with the company. On April 28, 1997, he wrote to Susan Oswalt, Mostardi-Platt's Director of Human Resources, ask ing "Sue, haven't you really terminated my employment?" He asked to be informed of his status at the company by May 9, 1997. As of April 24, and thus by the time of the April 28 letter, Dvorak's doctor had released him from the desk-only restriction. He never mentioned this to anyone at Mostardi-Platt; thus, the company had no reason to believe that Dvorak could once again perform field work. All it had was an earlier e-mail he had sent to Macak telling the latter that he did not know when, if ever, he would be back in shape.

On May 6, 1997, Oswalt wrote Dvorak and asked for a satisfactory explanation for the alleged computer misuse. Dvorak never responded. A further letter from Mostardi-Platt's counsel, dated May 21, 1997, expressed once again a willingness to meet and discuss the issues that had arisen with respect to Dvorak's employability. Again, Dvorak was not forthcoming, and no such meeting ever took place.

On May 28, 1997, Mostardi-Platt notified Dvorak by letter of his termination. The letter specifically referred to the damage that Dvorak's misuse had caused to the laptop, and further stated that the inflammatory April 1 ...

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