The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge
MEMORANDUM OPINION AND ORDER
In this action filed by plaintiff, Gary Kinlaw ("Kinlaw"), alleging discrimination (Count I) and retaliation (Count II) in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12102 et. seq., defendant, Alpha Baking Co., Inc. ("Alpha"), has moved under Rule 56, Fed.R. Civ. P., for summary judgment. For the reasons set forth below, Alpha's motion is denied.
SUMMARY JUDGMENT STANDARDS
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS STATED IN A LIGHT MOST FAVORABLE TO PLAINTIFF
Alpha is an Illinois corporation with an office located in Chicago, Illinois. (Def. L.R. 56.1 ¶ 2.) Kinlaw served as a routeman at Alpha's Chicago office from approximately 1990 until July 1999. (Def. L.R. 56.1 ¶ 4.) During this time, Kinlaw's work responsibilities included selling and delivering bread products to schools, restaurants, hospitals and office buildings. (Def. L.R. 56.1 ¶ 4.) In July 1999, Kinlaw suffered a debilitating back injury when the delivery truck he was driving for Alpha malfunctioned. (Pl. L.R. 56.1 ¶ 2.) This injury rendered Kinlaw unable to work from July 1999 until May 2002. (Def. L.R. 56.1 ¶ 5.) The injury also required Kinlaw to undergo back surgery in September 1999. (Def. L.R. 56.1 ¶ 5.)
On approximately April 29, 2000, Kinlaw faxed a copy of a doctor's note outlining his current health status to Mike Rosen ("Rosen"), Alpha's Human Resource Manager. (Pl. L.R. 56.1 ¶ 5.) Rosen told Kinlaw that he should come to the office because they "had work for him." (Pl. L.R. 56.1 ¶ 5.) Kinlaw returned to work at Alpha on approximately May 8, 2000 with a doctor's note limiting the types of physical activities he could perform. (Def. L.R. 56.1 ¶ 6.) Specifically, the note prohibited Kinlaw from sitting for more than 30 minutes at a time and restricted his ability to lift, carry, walk, bend, drive, kneel and twist. (Def. L.R. 56.1 ¶ 6.) These limitations, which remained in place for the remainder of Kinlaw's employment, prevented Kinlaw from returning to his position as a routeman. (Def. L.R. 56.1 ¶ 6.) As such, he was trained and assigned to work in the office as a dispatch and office worker. (Pl. Resp. to Def. L.R. 56.1 ¶ 7.) His responsibilities included "taking customer phone orders, answering the phone, speaking to customers and drivers by phone, and checking in drivers returning to the bakery." (Def. L.R. 56.1 ¶ 10.) Kinlaw's initial understanding of his work day was that "he should work at least 8 hours per day but he [would be] allowed to leave around 2 p.m. if he asked and it was not that busy." (Pl. L.R. 56.1 ¶ 11.) He typically worked six-hour days during this time period. (Pl. L.R. 56.1 ¶ 12.)
Kinlaw believed that his position as an office/dispatch worker was permanent and was not a condition of any temporary "light duty" status. (Pl. Resp. to Def. L.R. 56.1 ¶ 7.) Kinlaw contends that he was not informed that his new position was temporary. (Pl. L.R. 56.1 ¶ 7.) According to Kinlaw, Alpha was in the process of implementing new policies that required three workers to be in the office. (Pl. L.R. 56.1 ¶ 8.) As such, he believed his position was created to carry out this new policy. (Id.)
On May 25, 2000, Kinlaw again visited his doctor. At that time, the doctor issued a `permanent' return to work note which had the same restrictions as the prior note, except it requested that he be allowed to only work six hours per day." (Pl. Resp. to Def. L.R. 56.1 ¶ 13.) Kinlaw maintains that although he presented this note to Rosen, his status as an office employee did not change. (Pl. Resp. to Def. L.R. 56.1 ¶ 13.)
According to Kinlaw, in September, 2000, Gene Keck ("Keck"), Alpha's Director of Route Sales, and John Bruno ("Bruno"), Kinlaw's direct supervisor, informed Kinlaw, "It's coming to an end. You are going to have to work this position these hours or you don't have a job." (Pl. L.R. 56.1 ¶ 14.) Kinlaw was then told his hours were being increased to 10 1/4 per day and he would have to work six days a week, including Sundays. (Pl. Resp. to Def. L.R. 56.1 ¶ 16.) Shortly thereafter, Kinlaw left for a three-week vacation. (Def. L.R. 56.1 ¶ 16.) When he returned he was told that he needed to obtain a doctor's note lifting the six-hour per day work restriction. (Def. L.R. 56.1 ¶ 17.) Kinlaw was suspended from work for approximately one week in October, 2000 because he did not secure a doctor's note to lift the work restrictions. (Pl. L.R. 56.1 ¶ 19.) On October 5, 2000, Kinlaw met with his doctor who then provisionally lifted the hour restriction to determine if Kinlaw was, in fact, physically able to handle the increase in hours. (Pl. Resp. to Def. L.R. 56.1 ¶ 17.) A follow-up appointment was scheduled for January 4, 2001. (Pl. Resp. to Def. L.R. 56.1 ¶ 17.) Kinlaw worked the 10 1/4 hour day, six days a week, from October through December 2002. (Pl. Resp. to Def. L.R. 56.1 ¶ 19.) Beginning in December, 2002, Kinlaw began to suffer physical disabilities. After the follow-up visit on January 4, 2001, and because Kinlaw's condition was deteriorating, Kinlaw's doctor issued a note re-instituting the six-hour work day restriction. (Pl. L.R. 56.1. ¶ 23.) Kinlaw presented this note to Alpha on January 5, 2001. (Pl. L.R. 56.1 ¶ 24.)
On Tuesday, January 9, 2001, Kinlaw learned he was being terminated after Bruno asked him to turn over his pager and work ID, and told him that he had to meet with Rosen. (Pl. L.R. 56.1 ¶ 24.) Kinlaw's conversation with Bruno was the first time he received any indication he was being fired. (Pl. L.R. 56.1 ¶ 25.) After turning over his work equipment, Kinlaw met with Rosen and Larry Marcucci ("Marcucci"), the President of Alpha Baking. (Pl. L.R. 56.1 ¶ 26.) When Kinlaw asked why he was being terminated, Marcucci replied that it was because he "had a doctor's restriction, and the company had nothing to accommodate him." (Pl. L.R. 56.1 ¶ 26.) Kinlaw asserts that Alpha at no time discussed possible accommodations to his restriction. (Pl. L.R. 56.1 ¶ 26.)
In Count I, Kinlaw alleges that Alpha violated the ADA by failing to reasonably accommodate his debilitating back injury suffered while working for Alpha. In Count II, Kinlaw alleges that Alpha retaliated against ...