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BERTINETTI v. JOY MINING MACHINERY
United States District Court, Southern District of Illinois
October 9, 2002
LARRY BERTINETTI PLAINTIFF,
JOY MINING MACHINERY, DEFENDANT
The opinion of the court was delivered by: J. Phil Gilbert, District Judge
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).
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.
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 three days of providing the letters to
Pace, Bertinetti was assigned Mill #6 as his principal station. Mill #6
remained his principal work station until April 1999.
However, even after being assigned to Mill #6, Bertinetti was
instructed to operate Mill #5 on approximately five occasions between
late July 1998 and April 1999. Bertinetti testified that the "majority"
of these five times, the platform surrounding Mill #5 was removed so that
Bertinetti could operate the mill without having to step-up onto the
platform. Nevertheless, Bertinetti testified in his deposition that he
continued to have difficulty operating Mill #5. In particular,
Bertinetti testified that he had difficulty engaging and disengaging
levers, which apparently required Bertinetti to balance on one leg.
Drawing inferences favorable to Bertinetti, it appears that Bertinetti
would not have been required to balance on one leg to operate Mill #6,
and, thus, would have been able to operate Mill #6 without difficulty.
Bertinetti testified at his deposition that he told Pace that it was
difficult for him to stand on one leg and that he complained every time
Pace put him on Mill #5. However, later in the same deposition, he
testified that prior to June 7, 2000, he had not told anyone at Joy that
he could not stand on one leg or that he had difficulty operating the
levers with his feet. Rather, he testified that his letter of July 22,
1998, was the only time he communicated to anyone at Joy any difficulty
operating Mill #5. His letter of July 22, 1998, did not specifically
mention any difficulty associated with standing on one leg or operating
the levers on Mill #5. In any event, Bertinelli does not contend that
Joy failed to reasonably accommodate his alleged disability at any time
before June 7, 2000.
On April 5, 1999, Bertinetti voluntarily bid into a Computer Numeric
Control (hereinafter "CNC") operator position. A CNC machine is a large
computer operated machine which is used to repair parts. The CNC machine
utilized by Joy in 1999 only required the operator to push buttons to
program a computer. The CNC machine was surrounded by a 4 inch platform.
Bertinetti obtained the CNC operator position. The platform surrounding
the CNC machine was removed so that Bertinetti would not have to step-up
onto the platform to operate the machine. Bertinetti testified that he
had no problems running the CNC machine.
On June 7, 2000, however, Danny Bryant, Bertinetti's supervisor at the
time, assigned Bertinetti to Mill #5 to perform a particular task.
Bertinetti testified that he balked at Bryant's order to operate Mill #
5, and explained that Mill #5 was "difficult to run." Bertinetti
testified that Bryant said he was fully aware of Bertinetti's disability
but nevertheless ordered Bertinetti to work on Mill #5. The platform
surrounding Mill #5 was removed so that Bertinetti would not need to
step-up to operate the mill. Bertinetti testified in his deposition that
while operating Mill #5 on June 7, he was injured. Bertinetti testified
that he was balancing on one leg, holding a lever down with his left foot
when he felt a pain in his back and numbness in his left leg.
The June 7, 2000 incident is the only time Bertinetti believes he was
discriminated against on the basis of his CMT. He has filed a charge of
discrimination with the Equal Employment Opportunity Commission, alleging
that Joy failed to accommodate his CMT because, "[o]n June 7, 2000, [Joy]
mandated [Bertinetti] perform duties outside the parameters of [his]
medical restriction." The plaintiff filed this suit alleging that Joy
"insisted that he perform a job function that was beyond his restrictions
and the accommodation afforded to him by defendant." Complaint, ¶
"The ADA prohibits discrimination by covered entities, including
private employers, against qualified individuals with a disability."
E.E.O.C. v. Sears Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000)
(citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 477 (1999)). The
ADA provides, in part, that no covered employer "shall discriminate
against a qualified individual with a disability because of the
disability of such individual . . . ." 42 U.S.C. § 12112(a).
"Section 12112(b) of the Act defines the different ways in which
discrimination under section (a) might occur." Sears Roebuck, 233 F.3d
at 437. Relevant to the instant case, the ADA states that "not making
reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an applicant
or an employee" is considered discrimination, "unless such covered entity
can demonstrate that the accommodation would impose an undue hardship on
the operation of the business of such covered entity."
42 U.S.C. § 12112(b)(5)(A).*fn2
Before reaching the reasonable accommodation issue, however, the
plaintiff must put forward evidence from which a reasonable jury could
conclude: "(1) that [he] was or is disabled as defined by the Act, (2)
that [his] employer was aware of the disability, and (3) that [he] was
qualified for the position in question." Sears Roebuck, 233 F.3d at 437
(citing Best v. Shell Oil Co., 107 F.3d 544, 547-48 (7th Cir. 1997)).
In this case, at the summary judgment stage, only the first of these
elements is disputed. The defendant contends that Bertinetti is not
disabled as defined by the Act, and that, therefore, summary judgment
should be granted. Under the Act, a disability is defined as: "(A) a
physical or mental impairment that substantially limits one or more of
the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment."
42 U.S.C. § 12102(2).
It is not the Court's role to come to a decision as to whether
Bertinetti is disabled under the ADA. See EEOC v. Sears Roebuck Co.,
233 F.3d 432, 438. Rather, the Court must decide whether a rational
jury, viewing the evidence in the light most favorable to the plaintiff,
could come to such a decision. Id. In this case, the plaintiff argues
that a rational jury could find that he is disabled under Subsection (A)
and/or (C) of Section12102(2).
The purpose of Subsection (C)'s "regarded as" definition of a
"disability" is to "cover individuals `rejected from a job because of the
myths, fears and stereotypes associated with disabilities.'" Sutton v.
United Airlines, Inc., 527 U.S. 471, 489-90 (1999) (quoting 29 C.F.R.
pt. 1630, App. § 1630.2(l)). A plaintiff may prove a "regarded as"
claim by showing that either "(1) a covered entity mistakenly believes
that a person has a physical impairment that substantially limits one or
more major life activities, or (2) a covered entity mistakenly believes
that an actual, nonlimiting impairment substantially limits one or
more major life activities." Sutton, 527 U.S. at 489.
Bertinetti only directs the Court to one piece of "evidence" in support
of his "regarded as" theory. He notes that, in this litigation, the
defendant has argued that it "reasonably accommodated" the plaintiff.
Thus, Bertinetti argues, the defendant has admitted that it regards the
plaintiff as being disabled under the ADA. Bertinetti, however, has not
directed the Court's attention to any evidence that the defendant
regarded Bertinetti as being substantially limited in his ability to
perform a major life activity during the relevant time period. Joy's
argument that it provided a reasonable accommodation, which is presented
only as an alternative basis for summary judgment, is no evidence at
all. Moreover, this Court agrees with the Ninth Circuit which has
[W]hen an employer takes steps to accommodate an
employee's restrictions, it is not thereby conceding
that the employee is disabled under the ADA or that it
regards the employee as disabled. A contrary rule
would discourage the amicable resolution of numerous
employment disputes and needlessly force parties into
expensive and time-consuming litigation.
Thronton v. McClatchey, 261 F.3d 789, 798 (9th Cir. 2002); see also Plant
v. Morton International, Inc., 212 F.3d 929, 938 (6th Cir. 2000) (holding
that evidence that employer accommodated the plaintiff's medical
restrictions did not establish that the employer regarded the plaintiff
as disabled under the ADA). Therefore, the Court finds that no rational
jury could conclude, based on the evidence in the record, that Bertinetti
is "disabled" under § 12102(2)(C). Thus, the plaintiff must proceed
under § 12102(2)(A).
In Bragdon v. Abbott, 524 U.S. 624 (1998), the Supreme Court identified
a three-step test to determine if a physical or mental condition is
within the scope of subsection (A) of the definition of disability.
First, courts must determine whether the condition claimed is a physical
or mental "impairment." See id. Second, courts must "identify the life
activity upon which [the plaintiff] relies . . . and determine whether it
constitutes a major life activity under the ADA." Id. Third, courts must
determine whether the impairment "substantially limits" this major life
activity. See id.
In this case, the defendant does not dispute that CMT is a physical
impairment. Moreover, there is no doubt that the major life activity upon
which Bertinetti relies, walking, is a major life activity under the
ADA. Major life activities include "caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working." 29 C.F.R. § 1630.2(I) (emphasis added). Thus, the key
question at this stage of the analysis is whether Bertinetti's CMT
"substantially limits" his ability to walk. The defendant contends that
it does not.
"A `disability' exists only where an impairment `substantially limits'
a major life activity, not where it `might,' `could,' or `would' be
substantially limiting if mitigating measures were not taken." Sutton
v. United Air Lines, Inc., 527 U.S. 471, 482 (1999). Accordingly, this
Court will not speculate about what Bertinetti's condition would be in
the absence of mitigating measures that have actually been taken. On the
other hand, the defendant urges the Court to consider that Bertinetti's
condition might have been improved if he had utilized additional
corrective devices. Sutton, however, does not give courts a license to
"meander in `would, could, or should-have' land." Nawrot v. CPC Intern,
277 F.3d 896, 904 (7th Cir. 2002). Courts should only consider
mitigating steps actually taken and the consequences that actually
followed. See id. Accordingly, this court will not speculate about what
Bertinetti's condition would be if he had taken additional steps to
improve his condition.
In short, to survive summary judgment, Bertinetti must direct the Court
to evidence in the record from which a rational jury could conclude that
his CMT "substantially limits" his ability to walk, in a permanent or
long-term way, taking into account the mitigating steps that have
actually been taken and the consequences of those mitigating steps. In
Toyota Motor Manufacturing v. Williams, the Supreme Court emphasized that
the term "substantially limits" should be read "strictly to create a
demanding standard for qualifying as disabled." 534 U.S. 184, 122 S.Ct.
681, 691 (2002)
It is undisputed that Bertinetti suffers from an "impairment." The
Court does not believe, however, that his limitations constitute a
"disability" under the ADA. Bertinetti is clearly not "prevented" from
walking. Thus, the question is whether he is otherwise "substantially
limited" in his ability to walk. Bertinetti testified that he cannot
walk more than 100 yards without resting and that he can only stand 15-20
minutes without resting. His testimony also reveals that, at the
relevant time, he had an active lifestyle. Bertinetti testified that he
continued to fish and to hunt deer and squirrels through the fall hunting
season of 1999. He also testified that he continues to do yard work and
minor household chores.
The Court does not believe that a rational jury could find, based on
this evidence and consistent with the law, that Bertinetti was
substantially limited in his ability to walk at the relevant time. This
conclusion is supported by closely analogous case law. See, e.g., Moore
v. J.B. Hunt Transport, Inc., 221 F.3d 944, 951 (7th Cir. 2000) (holding
that a plaintiff suffering from arthritis was not substantially limited
in his ability to walk when he could walk up to one mile and his
condition only affected the rate and pace of his activities); Weber v.
Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) (holding that a
plaintiff suffering from heart disease was not disabled under the ADA even
though he had difficulty walking long distances or climbing stairs
without getting fatigued); Talk v. Delta Airlines, Inc., 165 F.3d 1021,
1025 (5th Cir. 1999) (holding that a plaintiff suffering from a leg
deformity was not substantially limited in her ability to walk when she
walked with a limp and at a significantly slower rate than the average
person); Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997)
(holding that a reasonable jury could not find the plaintiff
substantially limited in his ability to walk in light of his deposition
testimony that he was able to go hunting and fishing); Kelly v. Drexel
University, 94 F.3d 102, 106 (3d Cir. 1996) (holding that plaintiff
suffering from a hip injury was not substantially limited in his ability
to walk when he could not walk a mile, could not jog and could only climb
stairs slowly with the assistance of a rail); Ingles v. Neiman Marcus
Group, 974 F. Supp. 996, 1002 (S.D.Tex. 1997) (holding that plaintiff
suffering from diabetes and missing several toes was not substantially
limited in his ability to walk when the plaintiff could shop and tend to
daily activities); Barker v. Andrew Corp., No. 96 C 1111, 1997 WL
803866, at *1-4 (N.D.Ill. Dec.31, 1997) (holding that the plaintiff was
not substantially limited in his ability to walk
when he could not take
long walks and was in a great deal of pain when he walked); Graver v.
National Eng'g Co., No. 94 C 1228, 1995 WL 443944, at *9-11 (N.D.Ill.
July 25, 1995) (holding that plaintiff suffering from arthritis in his
ankles was not substantially limited in his ability to walk when he
walked with a pronounced limp and felt pain and stiffness); Stone v.
Entergy Services, Inc., No. 94-2669, 1995 WL 368473, at *2-4 (E.D.La.
June 20, 1995) (holding that plaintiff who was unable to run, walked
slowly, had trouble climbing and descending stairs, and suffered from
muscle weakness and partial paralysis as residual effects of polio, but
did not need a walking aid, was not disabled under the ADA).
Notably, all of the cases cited above were decided without the benefit
of the Supreme Court's decision in Toyota Motor Manufacturing v.
Williams, 534 U.S. 184, 122 S.Ct. 681 (2002), a case in which "the Court
established a higher threshold for the statute than some had believed it
contained." Dvorak v. Mostardi Platt Associates, Inc., 289 F.3d 479, 484
(7th Cir. 2002).
Because Bertinetti has not put forward evidence from which a rational
jury could conclude that he is disabled under the ADA, the Court need not
consider whether a reasonable jury could conclude that the defendant
failed to reasonably accommodate Bertinetti.
To the extent Bertinetti is attempting to raise a personal injury claim
for an exacerbation of his condition or for injuries sustained on June
7, 2000, his remedy lies in tort or under the Illinois Worker's
Compensation Act. Accord Smith v. Blue Cross Blue Shield of Kansas,
102 F.3d 1075, 1077-78 (10th Cir. 1996).
Finally, the Court understands that Mr. Bertinetti suffers from a
serious physical impairment that limits him in important ways. The Court
does not consider his impairment to be insignificant. However, the
Supreme Court has held that when Congress wrote the ADA it intended to
create a "demanding standard for qualifying as disabled." Williams, 122
S.Ct. at 691. This Court has simply concluded that the evidence in the
record would not allow a jury to conclude that Mr. Bertinetti meets that
demanding standard, and the Court's decision is consistent with what
other federal courts across the country have done in very similar cases.
The Court GRANTS, instanter, the defendant's motion to file a separate
statement of facts (Doc. 23). For reasons discussed above, the Court
hereby GRANTS the defendant's motion for summary judgment (Doc. 18). The
Clerk of the Court shall enter judgment accordingly.
IT IS SO ORDERED.
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