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October 8, 2002


The opinion of the court was delivered by: Ian H. Levin, United States Magistrate Judge.


Plaintiff Scot L. Heimann ("Plaintiff") seeks recovery in a Second Amended Complaint against Defendant Roadway Express, Inc. ("Roadway") for unlawful discriminatory employment practices in violation of the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 794. Before the Court are the parties cross-motions for summary judgment in the cause. For the reasons set forth below, the Court grants Defendant's Motion for Summary Judgment and denies Plaintiff's Counter Motion for Summary Judgment.


Plaintiff was hired by Roadway in July 1997 as a truck driver*fn1 at its Chicago Heights terminal.*fn2 (Def.'s LR56.1(a)(3) St. ¶ 5.) At that time, Plaintiff was considered a "ten percenter" which meant that he was in the bottom ten percent of the seniority list and, pursuant to the collective bargaining agreement for his unit, he could be assigned to drive out of any of Roadway's Chicago area locations and would be assigned whatever truck was available at that location. (Def.'s LR56.1(a)(3) St. ¶ 11; Pl.'s LR56.1(b)(3)(A) Response to Def.'s LR56.1(a)(3) St. ¶ 11.)

In August 1998, Plaintiff injured his left hand in a work-related accident while working for Roadway, and underwent surgery with Dr. James Schlenker to repair his left middle finger tendon. (Def.'s LR56.1(a)(3) St. ¶ 12.) Dr. Schlenker released Plaintiff to return to work on September 17, 1998, but he was restricted from using his left hand. (Id. ¶ 13.) Plaintiff did not return to work immediately after his release was issued because he had been instructed by Dr. Schlenker not to return while he was taking narcotic medications. (Id. ¶ 14.) As a result, Plaintiff was unable to work until October 5, 1998, at which time, he returned to work with a temporary one-handed restriction that prevented him from driving. (Id. ¶ 15.) The terms of the union collective bargaining agreement*fn3 governing Plaintiff's position provides for temporary modified duty for those employees who had temporary work restrictions as a result of work-related injuries. (Def.'s LR56.1(a)(3) St. ¶¶ 16, 17.) Plaintiff understood that the temporary modified duty program applied to only those employees recovering from work-related injuries. (Id. at ¶ 20.) Therefore, as specified by the modified duty program, Plaintiff was assigned modified duty, working Monday through Friday, on the day shift, in a non-driving position at the Chicago Heights terminal.*fn4 (Id. at ¶ 15.)

On October 28, 1998, Plaintiff was released to full duty as a driver and he returned to working as a "ten percenter" out of Roadway's Chicago Heights terminal. (Def.'s LR56.1(a)(3) St. ¶ 22.) On November 6, 1998, Plaintiff saw Dr. Schlenker and told him that he was experiencing pain in his left hand that he believed was caused by exertion when driving manual steering trucks. (Id. ¶ 23.) As a result, Dr. Schlenker provided him with a temporary work restriction which precluded him from driving a truck (except for those with power steering) through November 30, 1998.*fn5 (Id.) At that time, however, because Plaintiff was a ten percenter and a shuttle driver, he was not entitled to an assigned truck and power steering trucks were rarely available to him. (Id. ¶ 25.)

Plaintiff presented Dr. Schlenker's November 6, 1998 note to his supervisor, James Penny. (Def.'s LR56.1(a)(3) St. ¶ 26.) Based on the fact that the November 6, 1998 note contained only temporary work restrictions and because Plaintiff was expected to return to full duty, he remained subject to the terms of the modified duty program. (Id. ¶ 28.) However, instead of going back on modified duty, Plaintiff chose to continue driving manual steering trucks at the Chicago Heights terminal because he knew that he was about to be transferred to a different terminal. (Id. ¶ 29.) Shortly thereafter, as a result of a change in Plaintiff's seniority, he was no longer a "ten percenter" and he transferred to the Elk Grove Village terminal. (Id. ¶ 31.) At the Elk Grove Village terminal, power steering trucks were available to Plaintiff most of the time. (Id.)

On November 19, 1998, Dr. Schlenker released Plaintiff to full duty with a twenty-five pound lifting restriction; however, he did not restrict Plaintiff to only driving trucks with power steering. (Def.'s LR56.1(a)(3) St. ¶ 32.) Because Plaintiff was told that he could not drive with the restriction*fn6, he requested and obtained a full release from Dr. Schlenker on November 24, 1998. (Id. ¶¶ 33, 34, 35.) Plaintiff, subsequently, provided this full release to Roadway. (Id. ¶ 36.)

In December 1998, Plaintiff, again, became a "ten percenter" when a number of drivers were laid off. (Def.'s LR56.1(a)(3) St. ¶ 39.) Plaintiff returned to the Chicago Heights terminal and primarily drove manual steering trucks because that was the only type of truck available at that terminal. (Id.)

On December 24, 1998, Plaintiff returned to Dr. Schlenker and he was, again, given a work restriction requiring that he only drive trucks with power steering. (Def.'s LR56.1(a)(3) St. ¶ 39.) Plaintiff presented Dr. Schlenker's note to one of Roadway's supervisors and was told him that he would not be able to work with that restriction. (Id. ¶ 41.) Plaintiff was subsequently placed back in the modified duty program in a non-driving position working nights at the Chicago Heights terminal. (Id. ¶ 43.)

On February 10, 1999, pursuant to the collective bargaining agreement, Plaintiff was transferred to the Elk Grove Village terminal where he continued in the modified duty program working days instead of nights. (Def.'s LR56.1(a)(3) St. ¶ 45.) Because Plaintiff refused this modified duty assignment, Pittman sent Plaintiff two letters (dated February 12, 1999 and February 15, 1999) notifying him that if he failed to report as scheduled, he would be considered to have voluntarily resigned from his job. (Id. ¶ 47.) On February 16, 1999, Plaintiff sent Pittman a letter stating that he needed to work nights because his wife was pregnant and he needed to assist with the care of his two children. (Id. ¶ 48.) In his letter, Plaintiff requested that he be given a night shift position at either the Chicago Heights or the Elk Grove Village terminal and be allowed to drive a truck with power steering.*fn7 (Id.) Pursuant to a provision in the collective bargaining agreement, however, Plaintiff's refusal to accept the modified duty assignment resulted in the suspension of his workers' compensation benefits. (Id. ¶ 58.)

Meanwhile, on February 11, 1999, Dr. John J. Fernandez conducted an independent medical examination of Plaintiff. (Def.'s LR56.1(a)(3) St. ¶ 63.) Dr. Fernandez diagnosed Plaintiff with bilateral carpal tunnel syndrome and recommended that Plaintiff have surgery on his left hand to improve his condition. (Id. ¶¶ 63, 64.) Dr. Fernandez gave Plaintiff a twenty pound lifting restriction occasionally and/or ten pound lifting restriction frequently.*fn8 (Id. ¶ 63.) One week later, Plaintiff was examined by his own physician, Dr. Schlenker, who also recommended that he have surgery. (Id. ¶ 66.) In Dr. Schlenker's February 18, 1999 report, he noted that Plaintiff had requested a power steering truck; however, he did not provide Plaintiff with any type of lifting restriction.*fn9 (Id. ¶¶ 55, 56.) Plaintiff, however, chose not to have surgery at that time, for personal reasons, because his wife was pregnant and needed his assistance. (Id. ¶ 67.)

In February 1999, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that Roadway had discriminated against him in violation of the ADA by failing to provide him with a modified duty night shift assignment (which he needed due to his wife's pregnancy) and by not providing him with a truck that had power steering (which lead to a shift change which was a hardship for him). (Def.'s LR56.1(a)(3) St. ¶¶ 68, 69, 72.) In an attempt to settle Plaintiff's EEOC Charge, Deborah Wears, a Roadway legal department employee, made arrangements for Plaintiff to drive a power steering truck at the Elk Grove Village terminal during the night shift. (Id. ¶ 73.) Both Wears and Pittman, the terminal manager, understood that Plaintiff's condition was temporary because they had not been notified by Plaintiff's physicians that it was a permanent condition. (Id. ¶¶ 75, 76.) Moreover, Wears was not aware of any medical records indicating that Plaintiff had any permanent restrictions. (Id. ¶ 76.) Furthermore, Wears did not arrange this accommodation based on any belief that Plaintiff was disabled. (Id. ¶ 75.) This accommodation became effective on March 1, 1999. (Id. ¶¶ 73, 79.)

On June 11, 1999, Plaintiff suffered another work-related accident which resulted in cuts to his head. (Def.'s LR56.1(a)(3) St. ¶ 80.) Plaintiff was unable to work for one week as a result of his injury. (Id.) Plaintiff, however, did not then (or ever) return to work at Roadway because he had begun treatment for reflex sympathetic dystrophy ("RSD"), a condition that is associated with pain, injury and trauma, related to his hands, at a pain clinic. (Id. ¶ 81.) Subsequently, however, Plaintiff's RSD resolved itself and he was given a clean bill of health by his physicians.*fn10

On January 21, 2000, Plaintiff had surgery on his right hand which was performed by Dr. Mass. (Def.'s LR56.1(a)(3) St. ¶ 91.) Dr. Mass. considered the surgery to be successful and expected Plaintiff's right hand condition to improve as a result. (Id. ¶ 92.)

From November 1999 through August 2000 Plaintiff attended computer technical training and receive certificates of completion in three different courses. (Def.'s LR56.1(a)(3) St. ¶¶ 93, 94.)

From February 1999 to December 2000, Plaintiff applied for approximately two hundred jobs in a variety of industries. (Def.'s LR56.1(a)(3) St. ¶¶ 96, 97.) On December 11, 2000, Plaintiff sent a letter to Roadway requesting that he be permitted to return to his position as a driver with the accommodation of being assigned a truck with power steering. (Id. ¶ 99.) Roadway requested that Plaintiff provide documentation for his absence since June 1999, and requested additional information about his condition in order to consider his request. (Id. ¶ 101.) In the meantime, on December 21, 2000, Plaintiff accepted a job working for Certified Grocers Midwest as a full-time dispatcher with supervisory responsibilities.*fn11 (Id. ¶¶ 102, 107.)

As of April 16, 2001, the date of his deposition, Plaintiff was still working as a dispatcher at Certified Grocers Midwest. (Def.'s LR56.1(a)(3) St. ¶ 108.) Plaintiff's physical condition has not prevented him from performing his duties as a dispatcher and he has not requested any accommodation from Certified Grocers Midwest. (Id. ¶ 111.)


Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party had produced evidence to show that it is entitled to summary judgment, the party seeking to avoid such judgment must affirmatively demonstrate that a genuine issue of material fact remains for trial. LINC v. Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997).

In deciding a motion for summary judgment, a court must "review the record in the light most favorable to the nonmoving party and to draw all reasonable inferences in that party's favor." Vanasco v. National-Louis Univ., 137 F.3d 962, 964 (7th Cir. 1998). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nevertheless, the nonmovant may not rest upon mere allegations, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See also Linc, 129 F.3d at 920. A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, 106 S.Ct. 2505 or by "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.



Plaintiff moves to strike a June 28, 1999 report and note (hereinafter "reports") from Dr. Fernandez or, in the alternative, leave to file the affidavit of its expert, James Radke. (Pl.'s Mot. to Strike at 1.) For the following reasons, Plaintiff's Motion to Strike is denied, in part, and granted, in part.

Plaintiff initially argues that Dr. Fernandez's June 28, 1999 reports should be excluded because they were not properly produced during discovery. (Pl.'s Mot. to Strike at 1-2.) The Court, however, finds Plaintiff's assertion unmeritorious. Based on the record, the June 28, 1999, Physical Capacity Evaluation form completed by Dr. Fernandez was produced by Plaintiff almost two years ago in response to Defendant's First Request for Documents. (Brown Aff. ¶¶ 4-6; Brown Aff. Ex. 3.) Moreover, both the June 28, 1999 Physical Capacity Evaluation form and the June 28, 1999 Work Restriction Form were obtained during discovery via Defendant's appropriate subpoena to Dr. Fernandez for Plaintiff's medical records. (Brown Aff. ¶ 8; Brown Aff. Ex. 5). These records were obtained from Dr. Fernandez with Plaintiff's express consent after he signed an Authorization to Obtain Medical Records in this lawsuit. (See id.; see also Def. App. Ex. L.) Furthermore, Defendant sent Plaintiff a copy of the records received from Dr. Fernandez shortly after they were received from him. (Brown Aff. ¶ 9; see also Pl.'s App., Ex. G). Thus, based on the record, Dr. Fernandez's June 28, 1999 reports were properly produced to Plaintiff.

Plaintiff next asserts that Dr. Fernandez's June 28, 1999 reports should be barred because they are the result of an unauthorized ex parte communication between Dr. Fernandez and a representative of Roadway's workers' compensation insurance administrator, Gallagher & Bassett. (Pl.'s Mot. to Strike at 2-3.) Plaintiff specifically contends that Dr. Fernandez had a conversation with a representative of Roadway's workers' compensation insurer on June 28, 1999 concerning Dr. Fernandez's recommendations regarding Plaintiff's work-related left hand injury. (Pl.'s Dep. at 45-47; see Compl. ¶ 7.) Plaintiff alleges that this conversation between Dr. Fernandez and Roadway's workers' compensation insurer took place prior to his arrival for an appointment that day with Dr. Fernandez. (Pl.'s Dep. at 45-47.) Plaintiff claims, that as a result of the conversation, Dr. Fernandez refused to consider Plaintiff's evidence concerning his RSD condition. (Pl.'s Dep. at 45-46.) Plaintiff, therefore, contends that Dr. Fernandez changed his recommendations about Plaintiff's condition "out of the blue" as a result of this alleged conversation. (Pl.'s Mot. at 3.)

Therefore, the Court finds that Dr. Fernandez's June 28, 1999 reports constitute admissible evidence because they were properly obtained during discovery and are not the result of an unauthorized ex parte communication which violated Plaintiff's physician-patient privilege. As noted supra there is no evidence in the record to indicate that the alleged ex parte communication ever took place. Accordingly, the Court denies Plaintiff's Motion to Strike Dr. Fernandez's June 28, 1999 reports (i.e., Physical Capacity Evaluation form and Work Restriction Form); however, the Court grants Plaintiff leave to file Radke's Affidavit (providing supplemental information based on Dr. Fernandez's June 28, 1999 reports regarding the number of jobs Plaintiff would be precluded from performing if he were restricted to medium work).*fn13



Plaintiff claims that he was discriminated against by Roadway in violation of the ADA when Roadway failed to provide him with a truck with power steering during the period November 6, 1998 to March 1, 1999 after he sustained a work-related injury to his left hand. See ...

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