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BERTINETTI v. JOY MINING MACHINERY

October 9, 2002

LARRY BERTINETTI PLAINTIFF,
V.
JOY MINING MACHINERY, DEFENDANT



The opinion of the court was delivered by: J. Phil Gilbert, District Judge

ORDER

This matter comes before the Court on the defendant's motion for summary judgment. (Doc. 18). The plaintiff has responded (Doc. 20), and the defendant has replied (Doc. 21). For the reasons discussed below, the Court will grant the motion for summary judgment. Also before the Court, is the defendant's motion for leave to file a separate statement of facts, instanter, which will be granted (Doc. 23).
I. STANDARD
Summary judgment is proper when "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A genuine issue of material fact exists "only if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir. 1999) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In this case, the Court must review the record in the light most favorable to Bertinetti and draw all reasonable inferences in his favor. See Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001).
II. BACKGROUND*fn1
The plaintiff, Larry Bertinetti, has brought this case under the Americans with Disabilities Act, alleging that his employer, Joy Mining Machinery (hereinafter "Joy"), failed to reasonably accommodate his alleged disability. Joy is a supplier of underground mining systems for the extraction of coal and other bedded materials. Joy's Mt. Vernon, Illinois service center rebuilds and repairs mining systems. Bertinetti was employed by Joy at the Mt. Vernon service center, primarily as a boring mill operator. Steve Pace and Danny Bryant (who are not parties in this case) supervised Bertinetti when he worked the boring mills.
The Mt. Vernon service center utilizes six boring mills. A boring mill is a large machine which is generally used to repair used mining systems. The operation of a boring mill requires the boring mill operator to use a crane to hoist parts onto the mill, tighten bolts to secure the part on the mill, and engage levers and push buttons to operate the mill. To operate Joy's boring mills, the boring mill operator may be required to use his hands, legs or feet. As a general rule, Joy's boring mill operators may be required to operate any of Joy's six boring mills depending upon the work to be done.
While employed as a boring mill operator, Bertinetti operated Joy's #1, #4, #5 and #6 boring mills. Joy's Mill #5 is surrounded by an 8-10 inch platform that allows the boring mill operator to stand higher while operating the machine. The platform surrounding Mill #5 can be removed from the machine, thereby allowing the operator to use the machine without having to step up onto the platform. There is no platform around Mill #6, and, therefore, operators are not required to step-up to use the mill. Additionally, Mill #6 is easier to operate than the other boring mills because smaller parts are ordinarily run on that machine.
Bertinetti was diagnosed with Charcot-Marie-Tooth disease (hereinafter "CMT") in June 1994. CMT is a hereditary condition affecting the peripheral nervous system. CMT may affect both the lower and upper extremities and is indicated by an atrophy of muscles. Bertinetti testified in his deposition that CMT limits his ability to walk. He testified that he can walk only one-hundred yards without stopping to rest. He testified that CMT also limits his ability to walk because it affects his balance. He testified that he can climb stairs with the assistance of a hand rail. He testified that he lives in a two-story home but that he stays on the first floor. He testified that he climbs three steps from the outside ground level to the entryway of his home on a daily basis. He testified that he can stand fifteen to twenty minutes without resting. He testified that CMT does not limit his ability to do yard work, to do minor household chores, to care for himself, to perform personal hygiene, to drive, to get dressed, to lift, to reach or to perform manual tasks. Bertinetti testified that he was able to hunt deer and squirrel and to fish through the fall of 1999.
The effects of CMT may be mitigated through the use of corrective shoes, leg or ankle braces, and/or a walking stick or cane. With the exception of corrective shoes, Bertinetti has not taken any other potentially mitigating measure.
Bertinetti first informed Joy about his limitations resulting from CMT in 1995 via a letter from Dr. Richard Morgan. Dr. Morgan sent a letter dated April 5, 1995, to Joy's Human Resources Director Sharon Whipple explaining the general nature of CMT and stating that Bertinetti would "experience muscular weakness from time to time" and that he would "need periods of rest to prevent further strain or injury."
On or about April 1, 1998, Bertinetti provided a second letter from Dr. Morgan to Joy Mining's Plant Manager Bill Irman. Dr. Morgan's second letter, dated April 1, 1998, stated that Bertinetti had CMT which necessitated the wearing of orthopedic shoes. At the time Bertinetti presented the letter to Bill Irman, Bertinetti already wore orthopedic shoes to work. No one ever told Bertinetti that he could not wear orthopedic shoes to work.
On or about June 29, 1998, Bertinetti provided Pace a third letter from Dr. Morgan, dated June 29, 1998, referencing Dr. Morgan's April 5, 1995 letter and stating that Bertinetti's condition and work considerations were unchanged. In his deposition, Bertinetti testified that around this time (apparently late June 1998), he was having problems operating Mill #5 — "I was having trouble stepping up and down off the platform, climbing on the table, operating the machines as far as gears and levers." Bertinetti testified that he discussed the difficulty he was having with Pace, Bertinetti's foreman at the time, but that Pace made no response. Bertinetti testified that he did not complain to anyone else.
On or about July 22, 1998, Bertinetti presented Pace with two letters, one prepared by Bertinetti and one from Dr. Bob Thompson, both dated July 22, 1998. Bertinetti's letter was directed to Pace and stated, as follows: "I was recently taken off a #6 mill to run a much more physically difficult machine, in which I am having physical problems with." Further, Bertinetti's letter requested an accommodation under the ADA, specifically that he be reassigned to Mill #6. Dr. Thompson's letter stated in regards to Bertinetti as follows: "needs to change from present position due to stepping up and down-patient has arthritic changes of right ankle." Within two to ...

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