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September 15, 2003


The opinion of the court was delivered by: Joan H. Lefkow, District Judge


Plaintiff, Don A. Jackson ("Jackson"), filed a three-count complaint against defendant, Lake County, an Illinois municipal corporation ("Lake County"), alleging violations of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. ("ADA"). In Count I, Jackson alleges that Lake County violated 42 U.S.C. § 12112(d)(4)(A) by demanding that he submit to a blanket mental examination. In Count II, Jackson alleges Lake County violated 42 U.S.C. § 12112(a) by suspending and subsequently terminating him because of its perception that he was disabled. In Count III, Jackson alleges Lake County violated 42 U.S.C. § 12202(a) and (b) by retaliating against him for exercising his rights. Pending before the court is Jackson's motion for summary judgment on his Count I claim and Lake County's motion for summary judgment on all of Jackson's claims. For the reasons stated below, both motions are denied. Page 2


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).


Jackson was employed by Lake County as a senior utility worker from September 23, 1996 until his termination on June 25, 2001. (Def. L.R. 56.1 ¶ 5.) Jackson's duties as a senior utility worker, as set out in Lake County's position description, included, among other tasks, Page 3

(1) Assist[ing] Principal Utility Worker in repair and maintenance of pumps, motors, and other mechanical equipment. Occasionally, mak[ing] some repairs alone.
(2) Repair[ing] water mains and appurtenance[s], replacing piping excavating by hand or machine and repairing damaged property by leveling earth and replanting grass, bushes and trees.
(3) Driv[ing] Class "C" trucks and operat[ing] backhoes, construction equipment such as backhoes, uniloaders, and tractors.
(4) Operat[ing] sewer rodder and clean[ing] manholes; repair[ing] sanitary sewers.
(5) Serv[ing] as a lead worker when needed.

(PL Resp. to Def. L.R. 56.1 ¶ 6; PL Ex. 19.)

On or about February 19, 2001, Jackson filed a written complaint with his department. (Def. L.R. 56.1 ¶ 7.) He complained of "hazing and harassment on the job" and threatened to resign "[i]f there is nothing done to resolve the matter." (Id.) Thereafter, Martin Galantha ("Galantha"), Superintendent of Lake County's Public Works, set up a meeting for February 21, 2001, to discuss the complaint. (Def. L.R. 56.1 ¶ 8.) In addition to Jackson and Galantha, also present at the meeting were Robert Brummond ("Brummond"), Lake County's Operations Manager, and Mike Grinnell ("Grinnell"), Lake County's Maintenance Supervisor and Jackson's immediate supervisor. (Id.) At the meeting Jackson stated that co-workers Don Van Hoogen ("Van Hoogen"), Ron Sparks ("Sparks") and Peter Falotico ("Falotico"), verbally hazed him, embarrassed him, screamed profanities at him and went out of their way to humiliate him. (PL Resp. to Def. L.R. 56.1 ¶ 9.) Jackson also complained that he was being "micro-managed" while on the job. (Def. L.R. 56.1 ¶ 9.)

With respect to being micro-managed while working, Jackson specifically pointed to a recent incident in which Van Hoogan had stood over him as he worked in a trench and criticized Page 4 his work. (Def. L.R. 56.1 ¶ 11.) Jackson stated that this particular incident caused him to make his complaint of hazing and harassment. (Def. L.R. 56.1 ¶ 12.) When Grinnell heard Jackson relate the details of this incident, however, he believed that Jackson was referring to an incident that occurred the night before in which Grinnell, not Van Hoogan, was the person who stood over Jackson as he worked in a trench. (Def. L.R. 56.1 ¶ 13.)

Grinnell's recollection was that rather than hazing or harassing Jackson, he merely instructed him on how to properly do his assigned job of flaring copper. (Def. L.R. 56.1 ¶ 14.) Grinnell stated that he had become irritated with Jackson because he was not doing the work properly even through Grinnell had instructed him the night before on how to do the assigned work. (Def. L.R. 56.1 ¶ 15.) Grinnell believed it was strange that Jackson would be confused about an incident that happened the night before and that Jackson would confuse a co-worker, Van Hoogan, with his supervisor. (Def. L.R. 56.1 ¶ 16.) Despite Grinnell's belief that Jackson had, in fact, confused him with Van Hoogen, neither Galantha, Grinnell nor Brummond ever asked Van Hoogen if he had any words or problems with Jackson on the day of the trench incident.*fn2 (Def. L.R. 56.1 ¶ 42.) The February 21 meeting ended with Galantha telling Jackson that the matters discussed would be looked into and investigated. (Galantha dep. at 41.)

Factual disputes make it unclear as to what happened next. The parties agree that Galantha decided on March 1, 2001, to send Jackson for a psychological examination scheduled for March 29, 2001. (Pl. L.R. 56.1 ¶ 71.) Moreover, the parties agree that the examination was Page 5 scheduled for 9:00 a.m. with a psychiatrist identified by the parties only as Dr. Miller. The parties do not agree, however, on what information Galantha relied on in making the decision to schedule the appointment.

Under Jackson's version of the events, the only incidents Galantha took into account in making the decision to schedule a psychological evaluation were the "trench incident" described above and a car accident that occurred in 1998. In July 1998, Jackson was driving a large "Vactor" truck*fn3 when it rear-ended several passenger cars stopped at an intersection. (Id.) The accident, which took place during the day, in clear weather and with normal traffic conditions, resulted in several vehicles being wrecked and several injuries. (Def. L.R. 56.1 ¶¶ ¶ 23-24.) Lake County's Accident Review Board determined that the accident was preventable and that Jackson contributed significantly to it.*fn4 (Def. L.R. 56.1 ¶ 29.) Jackson maintains that only the "trench incident" and this accident could have been considered by Galantha when he made the decision to send Jackson for the psychological examination. Jackson claims that other information supplied to Galantha by Jackson's supervisors was not furnished until a March 21, 2001 meeting, which took place nearly twenty days after Galantha decided to make Jackson submit to the examination. (Pl. L.R. 56.1 ¶¶ 59-64.)

Under Lake County's version of the events, after the February 21 meeting ended but before Galantha scheduled the examination for Jackson, Galantha spoke with all three of Jackson's supervisors, Grinnell, Tim Fleece ("Fleece") and John Streicher ("Streicher"). The Page 6 parties dispute what Fleece told Galantha. Lake County relies on Galantha's testimony that Fleece compared Jackson with his co-workers and stated that Jackson always seemed to take the longest amount of time to do the snowplowing routes, completed the fewest number of loads when hauling sludge, and that co-workers had difficulty working with Jackson because he would forget instruction within a half hour of being told what to do. Jackson relies on Fleece's testimony that at the meeting with Galantha he "really didn't say anything" and did not tell Galantha that Jackson would get lost while driving or forget instructions and directions. (Pl. Resp. to Def. L.R. 56.1 ¶¶ ¶ 214-220.)

Grinnell reported to Galantha that Jackson exhibited unusual behavior on the job, frequently confused people, work sites and events, and was always the last driver to return from his snow plowing route, even though he always drove the same route, because he consistently had trouble finding the locations he was supposed to plow. (Def. L.R. 56.1 ¶ 19.) Moreover, Grinnell also reported that Jackson took twice as long as the other drivers to drive the sludge truck from the Diamond Lake plant to the Vernon Hills plant, put twice as many miles on the truck, forgot his daily work assignments two to three times a week, regularly got lost or forgot directions on routes that should have been known, seemed very nervous and excitable and would get upset when he thought a co-worker had made comments about him.*fn5 (Id.) Grinnell did not have any other employees with these types of problems. (Def. L.R. 56.1 ¶ 21.)

Galantha, who is the final decision-maker on employment decisions at Lake County's Department of Public Works, became concerned with the things Jackson's supervisors related to Page 7 him. (Def. L.R. 56.1 ¶ 23.) Moreover, Galantha became particularly concerned because Jackson had previously been involved in the 1998 major accident. (Id.) Lake County claims that Galantha took the 1998 accident into consideration, along with the "trench incident" and the concerns by Jackson's supervisors, in concluding that there were serious doubts as to whether Jackson could safely operate heavy equipment and trucks. (Def. L.R. 56.1 ¶ 33.)

On March 28, 2001, at approximately 1:30 p.m., Galantha met with Jackson to inform him that a psychological evaluation was set for the next day, March 29, at 9:30 a.m.*fn6 (Pl. L.R. 56.1 ¶ 98; PL Resp. to Def. L.R. 56.1 ¶ 37.) Galantha instructed Jackson to attend the March 29 psychological evaluation with Dr. Miller. (Def. L.R. 56.1 ¶ 37.) Other than the fact that this was a psychological examination, neither Galantha nor Jackson were aware of what type of testing would be involved. (Pl. L.R. 56.1 ¶¶ 94-95.) Jackson responded to Galantha by stating that he wanted to meet with his attorney prior to going to the examination and that he felt as if his "rights were being violated." (Def. L.R. 56.1 ¶ 38; Pl. L.R. 56.1 Add. Facts ¶ 124.) Galantha gave Jackson permission to leave work early that afternoon so that he could consult with his attorney. (Id.) Galantha informed Jackson, however, that he needed to know by that evening whether Jackson was going to attend the examination the next day. (Def. L.R. 56.1 ¶ 39.) Jackson did not speak to Galantha that evening. (Id.)

After leaving work early on March 28th, Jackson spoke with attorney G. John Marmet ("Marmet"), who specializes in tax matters. (Pl. L.R. 56.1 Add. Facts ¶ 129.) Marmet advised Jackson that he should consult with a labor/employment attorney prior to submitting to the exam Page 8 and that Jackson should go to the doctor's office and reschedule the exam. (Id.) The conversation ended after normal business hours. Jackson claims that he did not call Galantha that evening because the work day was already over and he believed that Galantha would no longer be at work.*fn7 (Pl. L.R. 56.1 Add. Facts ¶ 130.)

The next morning, March 29, Jackson advised Galantha at 7:15 a.m. that he was going to Dr. Miller's office that morning. (Def. L.R. 56.1 ¶ 40.) The parties do not agree on what exactly Jackson told Galantha. Jackson claims that he informed Galantha that his attorney had referred him to another attorney and also advised him to reschedule the appointment for a later time so that Jackson could obtain legal advice. (Pl. L.R. 56.1 Add. Facts ¶ 131.) Jackson further claims that Galantha's response was "Okay just make sure you keep your appointment." (Id.) Lake County denies Jackson informed Galantha that his attorney recommended he reschedule the appointment. Instead, Lake County states that Jackson did not inform Galantha that he intended to reschedule his appointment with Dr. Miller. (Def. L.R. 56.1 ¶ 45; Def. Resp. to Pl. L.R. 56.1 Add. Facts ¶ 131.) Both Galantha and Grinnell believed, based on their separate conversations with Jackson that morning, that Jackson had agreed to go to the psychological examination. (Def. L.R. 56.1 ¶ 42.)

Grinnell allowed Jackson to leave work at 8:30 a.m. on March 29 to go to Dr. Miller's office, which is a 15-25 minute drive from the Lake County Public Works Department. (Def. L.R. 56.1 ¶ 41.) Jackson left work at around 8:30 or 8:45 and arrived at Dr. Miller's office at around 9:00 a.m. (Def. L.R. 56.1 ¶ 44.) Although released from work at 8:30 a.m., Jackson was Page 9 still being paid for the time that he missed work to go to Dr. Miller's office. (Def. L.R. 56.1 ¶ 57.)

When Jackson arrived at Dr. Miller's office, he explained to the receptionist that he did not know what the exam was all about and asked if he could speak with Dr. Miller.*fn8 (Pl. L.R. 56.1 Add. Facts ¶ 134.) Because Dr. Miller was unable to talk to him at that point, Jackson claims that he sat in the waiting room for about 10 minutes, talked with the receptionist for another 10 to 15 minutes, rescheduled his appointment and left at around 9:30. (PL Resp. to Def. L.R. 56.1 ¶ 47.)

Just after 9:00 a.m. on March 29, Brummond received a phone call from Brandt Byrd in the Lake County Human Resources Department. (Def. L.R. 56.1 ¶ 48.) Byrd informed Brummond that Jackson had rescheduled his appointment with Dr. Miller and had left the doctor's office. (Id.) Brummond relayed this information to Galantha and Grinnell. (Id.) Jackson reported directly to Grinnell as soon as he returned to work. (Def. L.R. 56.1 ¶ 50.) Jackson later told Galantha that he returned to work that morning at 9:50 a.m. (Def. L.R. 56.1 ¶ 49.) Grinnell, however, ...

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