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February 4, 2004.


The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge


Plaintiff, Daniel Lutter, worked for Defendant, Rinella Beverage Company ("RBC"), since 1983. Sam Rinella ("Rinella") is part owner, general manager, and president of RBC. On July 18, 1998, Lutter injured his back while working as a route truck driver ("RTD") for RBC. For the next 16 months, Lutter alternated between being off work, working as an RTD, and working in the RBC warehouse. In November 1999, RBC terminated Lutter's warehouse position. On December 21, 2000, Lutter filed suit against RBC alleging: (1) discrimination in violation of the Americans with Disabilities Act ("ADA"); (2) failure to accommodate in violation of the ADA; and (3) retaliatory discharge under Illinois law. On April 4, 2003, RBC filed a motion for summary judgment against Lutter on each of his claims. This Memorandum Opinion and Order addresses the pending summary judgment motion.

I. Factual Background

  As an RTD, Lutter's primary responsibilities included distributing draft, canned and bottled Page 2 beer to RBC customers. RBC's drivers were required to unload beer from their trucks and stock beverages at the customer location. After Lutter injured his back on July 18, 1998, he continued to work as an RTD until July 28, 1998, at which time he missed two days of work, returned briefly, but then requested medical treatment due to the pain. Rinella made arrangements for Lutter to be seen by Rinella's family chiropractor, Dr. Jeff Arnold. In early August, Lutter sought treatment from Dr. Arnold. Dr. Arnold found that Lutter was able to return to work in a position that did not require any lifting, bending or twisting. RBC did not have any suitable positions available for Lutter and placed him on a leave of absence. On August 27, 1998, Rinella arranged for Dr. David Zoellick, an orthopedic surgeon, to examine Lutter. Dr. Zoellick ordered that Lutter perform no work until an MRI could be performed. Dr. Zoellick saw Lutter again on September 8, 1998, and, after an MRI, diagnosed Lutter with lumbar disc bulge. Dr. Zoellick restricted Lutter's work to a sitting job. Lutter remained on medical leave of absence because RBC had no sitting jobs available. At this time, both Lutter's and RBC's goal was for Lutter to return to his RTD position.

  Rinella reported Lutter's injury to his workers' compensation insurance carrier three weeks after the injury. In September 1998, Lutter hired a workers' compensation attorney, George Tamvakis, to pursue a workers' compensation claim, and on September 17, 1998, Lutter filed an Application for Adjustment of Claim seeking workers' compensation benefits. Rinella was served with the Application soon after. Lutter claims that Rinella was upset with Lutter's decision to hire an attorney, but that after September 1998, Rinella and Lutter never again discussed the issue of Lutter's hiring of the attorney.

  On October 6, 1998, Dr. Zoellick again restricted Lutter to a sitting job, and Lutter hand delivered Dr. Zoellick's medical diagnosis to Rinella. On that day, Rinella gave Lutter a note stating Page 3 that he wished for Lutter to return to work and that he "can accommodate light duty that limits lifting/warehouse work." On October 20, 1998, Dr. Zoellick released Lutter to work with a 25 pound lifting restriction and ordered no repetitive bending, lifting, kneeling, stooping, climbing, or squatting. These restrictions prevented Lutter from performing the duties of RTD. Dr. Zoellick specified that Lutter could drive and operate an electric mule. On that same day, RBC placed Lutter in a warehouse position, where Lutter began working 40 hours per week. Lutter was paid the warehouse scale set by his union's collective bargaining agreement ("CBA"). The CBA also stated that an RTD who was asked to perform duties in the warehouse would be paid one and one-half times the normal warehouse pay.

  RBC does not maintain a written job description or task list for the warehouse position, but warehouse employees work together to perform what needs to be done around the warehouse, and they are not given specific assignments each day. The tasks performed by employees in RBC's warehouse include building and stacking pallets, loading pallets on trucks, replacing broken product with undamaged product, removing debris from the warehouse floor, performing "drop truck" deliveries, and shrink wrapping pallets. At the time Lutter worked in the warehouse, there were at least three employees permanently assigned to working in the warehouse, including: (1) Ed Markauskas, who moved to a warehouse job in 1989 as a result of an on-the-job back injury, from which he continues to experience pain while working; (2) Bob Harwood, who moved from being an RTD to a permanent warehouse employee after he requested less physically demanding work; and (3) Kevin Swanson, who also moved to the position of warehouse employee after requesting less physically demanding work.

  On November 10, 1998, Dr. Zoellick decreased Lutter's weight lifting restrictions, permitting Page 4 him to lift 50 pounds with no repetitive bending, stooping, lifting, kneeling or squatting. These restrictions were maintained at Lutter's December 8, 1998, check-up. On December 21, 1998, Jay Levin, Dr. Zoellick's associate, found no role for surgical treatment. On January 12, 1999, Lutter informed Dr. Zoellick that he wanted to return to his position as an RTD. After an examination, the doctor found Lutter's condition to be improving and released him to full duty work. On January 21, 1999, RBC assigned Lutter a helper to assist with Lutter's transition back to his job. However, by January 24, 1999, Lutter felt unable to perform the duties of an RTD even with a helper. Dr. Zoellick referred Lutter to Dr. Lanoff, another chiropractor working with Lutter. At Dr. Lanoffs request, RBC placed Lutter on a leave of absence from January 25 through March 1, 1999. On February 6, 1999, RBC reassigned Lutter's truck driving route to another person pursuant to RBC's collective bargaining agreement. However, as of February 1999, the goal of RBC and Lutter remained to return Lutter to an RTD position.

  On March, 2, 1999, Dr. Lanoff found that Lutter's subjective complaints of pain were out of proportion to his objective findings, and Dr. Lanoff saw no disability. Dr. Lanoff released Lutter to full duty work without restrictions. At that point, Rinella told Lutter to report to the warehouse. On March 17, 1999, Rinella issued a written warning to Lutter for insubordination because Lutter refused to work with a certain warehouse employee, Chuck Krueger, after Lutter's supervisor, Bill Kruse, assigned Lutter to do so. Rinella warned Lutter to stop badmouthing the organization, and stated that the warning would stay in place for six months and any new problems would result in a two day suspension. On April 29, 1999, Lutter independently sought a neurosurgical consultation with Dr. Marshall Pederson because his pain was continuing while he was performing his warehouse assignments at RBC. Page 5

  On July 7, 1999, Lutter also underwent an independent medical examination by Dr. Matthew Ross. Dr. Ross sent a letter to RBC's workers' compensation company stating that it is unlikely Lutter would be able to return to full duty work with or without surgery and that Lutter's prognosis for further improvement is only fair. On July 9, 1999, Lutter reported to Dr. Pederson that he had difficulty performing repetitive bending and twisting and excessive heavy lifting, but that he could participate in light-duty employment. Dr. Pedersen described this in a letter to Donna Bondi, a registered nurse hired by RBC's workers' compensation insurance carrier to assist with Lutter's return to an RTD position. Dr. Pederson restricted Lutter to lifting a maximum of 25 to 30 pounds and avoiding repetitive bending and twisting of his back. Dr. Pedersen wrote that Lutter indicated that he was able to drive a drop truck but that he could not handle the individual beverages. Dr. Pedersen wanted to postpone surgery. In July 1999, Ms. Bondi concluded that Lutter's prognosis for recover was excellent and that he would be able to return to full duties. At this time, both Lutter and RBC still preferred Lutter to return to an RTD position. In fact, Rinella informed Lutter that RBC was trying to get Lutter back to full duty by getting him medical treatment and other assistance.

  On September 28, 1999, Lutter completed a medical history form for Dr. Pederson, in which he indicated that he experienced pain performing light duty work as well as his usual work because he had a difficult time bending, twisting and lifting; but that he worked through the pain. At this point, Dr. Pederson recommended surgery because Lutter was having increasing pain bending, twisting, sitting for long periods of time, standing for long periods of time, and lifting. Pedersen sent a letter to the insurance carrier on October 1, 1999, explaining his diagnosis. In October 1999, Lutter also reported to Bondi that he was experiencing increasing pain while performing his duties in the warehouse, and he told Rinella that he would never be able to return to the RTD position unless he Page 6 had a helper.

  On October 15, 1999, RBC's insurance company and Lutter's attorney resumed discussions of possible resolution of Lutter's workers' compensation claim. On November 11, 1999, Rinella had a conversation with his workers' compensation attorney where Rinella told the attorney that the union would not cooperate with a settlement that called for payment of pension benefits to Lutter. Rinella's attorney gave Rinella the impression that Lutter's workers' compensation claim would not settle anytime soon. The parties did not settle the claim, and on November 12, 1999, Rinella terminated Lutter's warehouse position. Rinella would have allowed Lutter to remain employed at RBC only if Lutter performed his RTD position without any restrictions. RBC stopped paying Lutter's medical bills at this time, and Lutter received no further workers' compensation benefits from RBC. RBC continued to pay health and welfare and pension benefits on Lutter's behalf through July 2000, pursuant to the collective bargaining agreement with Lutter's union. After failing to find employment as a driver at 11 different companies, Lutter secured employment performing light mechanical work at Four Winds Golf Course. Lutter's workers' compensation claim is still pending, II. Summary Judgment Standard

  Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). A genuine issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986). The Page 7 initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L.Ed.2d 265 (1986); Larimer v. Dayton Hudson Corp., 137 F.3d 497 (7th Cir. 1998). A question of material fact is a question which will be outcome determinative of an issue in the case. Anderson, 477 U.S. at 248.

  Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate specific facts showing that there is a genuine [material] issue for trial." Id. A party will be successful in opposing summary judgment only if it presents "definite, competent evidence to rebut the motion." E.E.O.C. v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). The non-moving party cannot create an issue of fact with speculation or conjecture. Borcky v. Maytag, 248 F.3d 691, 695 (7th Cir. 2001). During its summary judgment analysis, the court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996).

 III. ADA Claims

  The ADA proscribes discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). Under the ADA, two distinct categories of disability discrimination claims exist: failure to accommodate and disparate treatment. Foster v, Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999) (citing Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1021-22 (7th Cir. 1997)). The ADA defines discrimination as including:

  (1) limiting, segregating, or classifying a job applicant or employee in a way that Page 8 adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.
42 U.S.C.A. § 12112(b). Lutter asserts a cause of action under both categories of disability discrimination: (1) wrongful termination (that Lutter was terminated because of his disability); and (2) failure to provide reasonable accommodation for Lutter's disability.
  Any claim for discrimination under the ADA requires a showing that Lutter was a qualified individual with a disability. 42 U.S.C. § 12112(a). The term "qualified individual with a disability" means:
[A]n individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
42 U.S.C. § 12111(b)(8). The Court will deal first with whether Lutter is disabled, and second, whether, with or without reasonable accommodation, he can perform the essential functions of the employment position that he holds or desires.

  A. Is Lutter Disabled Under The ADA?

  The ADA defines disability in three separate ways: (1) a physical or mental impairment that Page 9 substantially limits one or more major life activities; (b) a record of such impairment; or (c) being regarded as having such an impairment. 42 U.S.C. § 12102(2); Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 193 (2002). Lutter claims that he is disabled because he has a physical impairment that substantially limits one or more major life activities, and, in the alternative, that RBC regarded him as having such an impairment, even if he did not, in fact, have one.

  Major life activities refer to the activities that are of central importance to an individual's daily life. Toyota, 534 U.S. at 197. Federal regulations have named "performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working" as tasks that qualify as major life activities. 29 C.F.R. § 1630(i). A person is substantially limited when he is "either unable to perform, or significantly restricted as to the condition, manner, or duration under which the individual can perform, a major life activity as compared to an average person in the general population." 29 C.F.R. § 1630.2(j); Sears, 233 F.3d at 438. Factors to be considered by a court in determining whether an impairment results in a substantial limitation on a major life activity are: (1) the nature and ...

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