United States District Court, N.D. Illinois
February 4, 2004.
DANIEL LUTTER, Plaintiff
RINELLA BEVERAGE COMPANY, Defendant
The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
MEMORANDUM OPINION AND ORDER
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
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
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
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
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.
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
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
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
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
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
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 severity of the impairment; (2) the
actual or expected duration of the impairment; and (3) the anticipated or
actual permanent or long-term impact of or resulting from the
impairment. 29 C.F.R. § 1630.2(j)(2).
Lutter maintains that he is substantially limited in his ability "to
maintain an active lifestyle, to walk, to run, perform manual tasks, move
about and/or perform any job requiring repetitive manual labor or heavy
physical exertion." Lutter, however, has provided no evidence that
maintaining an active lifestyle or running are of central importance to
an individual's daily life, and this Court has found no cases suggesting
as much. Moreover, Lutter has provided no evidence that he is
"substantially limited" in his ability to walk or move about. In fact,
Lutter has provided no
evidence that his ability to walk is limited in any way. Based on
this lack of evidence, the Court finds that Lutter's allegations that he
was substantially limited in his ability to walk, run, move about, and
maintain an active lifestyle could not reasonably amount to a disability.
Lutter also does not provide sufficient evidence that he is
substantially limited in performing manual tasks. The Supreme Court has
explained that "manual tasks unique to any particular job are not
necessarily important parts of most people's lives." Toyota, 534 U.S. at
201. In Toyota, the plaintiffs inability to perform repetitive work with
hands and arms extended at or above shoulder levels for extended periods
of time was found to be job-specific, not a manual task that was an
important part of most people's daily lives. Id. In contrast, the Supreme
Court held that household chores, bathing, and brushing one's teeth were
among the types of manual tasks of central importance to people's daily
lives. Id. at 201-02. The maximum restrictions placed on Lutter by his
doctors at any time were to avoid repetitive bending and twisting, to
avoid standing for long periods of time, and to avoid lifting more than
25 pounds. These limitations do not come close to the manual tasks
described by the Supreme Court as having central importance to people's
lives. Therefore, this Court finds that Lutter has not provided any
evidence from which a jury could reasonably determine that he was
disabled by reason of an alleged inability to perform manual tasks.
Lutter also argues that he has enough evidence to prove that his back
condition prevents him from performing any job requiring repetitive
manual labor or heavy physical exertion, and that he is thus
substantially limited in the major life activity of working.
Specifically, Lutter claims that he is not able to work: (1) in factory
positions requiring manual labor; (2) in retail sales; or (3) as a cashier
at a store counter. When the major life activity is that of working, the
plaintiff must show that he is significantly restricted in the ability to
perform either a class of jobs or a broad range of
jobs in various classes as compared to the average person having
comparable training, skill, and abilities. 29 U.S.C. § 1630.2(j)(3)(i).
The Seventh Circuit has held this to mean that the plaintiff must provide
some evidence of the "numbers and types of jobs" within the geographical
area to which the plaintiff had reasonable access, and the number of jobs
from which he was precluded because of his impairment. E.E.O.C. v.
Rockwell Int'l Corp., 243 F.3d 1012, 1017 (7th Cir. 2001). "[A]n
inability to perform a particular job for a particular employer is not
sufficient to establish a substantial limitation on the ability to work;
rather, the impairment must substantially limit employment generally."
Skorup v. Modern Door Corp., 153 F.3d 512, 514-15 (7th Cir. 1998) (citing
Weiler v. Household Finance Corp., 101 F.3d 519, 525 (7th Cir. 1996)).
RBC claims that Lutter has not provided the necessary evidence of the
numbers and types of jobs from which he was precluded, and that Lutter's
alleged impairment only limits his ability to perform truck driving and
other specific duties for RBC. Indeed, Lutter has not provided specific
evidence of the numbers and types of jobs from which he was precluded
because of his alleged impairment. Lutter testified that between November
1999 and May 2000, he looked for employment as a truck driver with 11
companies but was not offered employment with any of those companies. In
addition, Lutter has evidence that at various times since his injury,
including from July 1999 through the date of his termination, his doctors
restricted him from lifting over 25 to 30 pounds and ordered him to avoid
repetitive bending and twisting of his back.
Lutter asserts that the lack of demographic evidence is not fatal to
his claim. In Rockwell, the Seventh Circuit declined to create a per se
rule that a plaintiff cannot prevail on a disability discrimination claim
without quantitative evidence of the precise characteristics of the local
job market. Rockwell, 243 F.3d at 1017. Moreover, the factors set out in
§ 1630.2(j)(3)(ii) "are not
intended to require an onerous evidentiary showing. Rather, the terms
only require the presentation of evidence of general employment
demographics and/or of recognized occupational classifications that
indicate the approximate number of jobs (e.g., `few,' `many,' `most')
from which an individual would be excluded because of an impairment."
29 C.F.R. Pt. 1630, App. § 1630.2(j). The Seventh Circuit held that this
requires "at least some evidence from which one might infer that [the
claimants] faced `significant restrictions' in [their] ability to meet
the requirements of other jobs." Rockwell, 243 F.3d at 1018 (citing
Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1998)). In
Rockwell the court held that the plaintiffs did not provide sufficient
evidence that the plaintiffs' alleged impairment, a perceived inability
to perform jobs requiring frequent repetition or use of vibratory power
tools, foreclosed them from more than their specific jobs. Therefore, the
Seventh Circuit affirmed summary judgment against the plaintiffs.
Rockwell, 243 F.3d at 1017-18.
Similarly, in Skorup, the Seventh Circuit affirmed summary judgment
against the plaintiff where she asserted in her brief that she could not
perform any and all jobs which required repetitive stretching and pulling
of the shoulder, but provided no evidence of the number of jobs from
which she was precluded because of this impairment, Skorup, 153 F.3d at
515. The Seventh Circuit held that "[t]o establish that the ADA applies
to her condition, [the plaintiff] needed to identify what requirements
posed by the class of assembly line jobs (or, alternatively, by a broad
range of other jobs) were problematic in light of the limitations her
fibromyalgia imposed upon her." Id. The court affirmed summary judgment
against the plaintiff because she failed to set forth evidence from which
the court could determine even "general guideposts, such as whether her
impairment forecloses her from accepting a few, many, or most of the jobs
in a particular class or in a broad range of classes." Id. Likewise, the
Seventh Circuit held in Davidson that the plaintiff had come forward with
evidence from which a jury might reasonably infer that ADD precluded her
from holding other comparable positions as a therapist. Davidson, 133
F.3d at 506-07. The plaintiff argued that she was discharged because her
ADD made her unable to dictate her notes; however, the plaintiff made no
showing that this is a skill that other counseling positions require.
Lutter argues, however, that his back injury is such an obvious
impediment to his ability to perform a certain range of jobs that he does
not need to present evidence of the numbers and types of jobs from which
he is foreclosed. Evidence of the number and types of other jobs from
which a plaintiff is foreclosed may not be necessary if his is "one of
the rare cases in which the claimants' impairments are so severe that
their substantial foreclosure from the job market is obvious." Rockwell,
243 F.3d at 1017-18. The Appendix to the Code of Federal Regulations
states that: "An individual who has a back condition that prevents the
individual from performing any heavy labor job would be substantially
limited in the major life activity of working because the individual's
impairment eliminates his or her ability to perform a class of jobs."
29 C.F.R. Part 1630 Appendix § 1630.2(j). Thus, the Code of Federal
Regulations assumes that a back injury may sufficiently prove a
substantial limitation in the major life activity of working if the
individual is prevented from performing heavy labor jobs, as Lutter
alleges he is.
In addition, in at least three cases, the Seventh Circuit has found
that plaintiffs had produced enough evidence to survive summary judgment
on the issue of whether they were disabled under the ADA because of their
substantial limitations in the major life activity of working, when the
plaintiffs' only evidence was certain physician-ordered restrictions
placed on the plaintiffs and their doctors' recommendations concerning
how their respective injuries would affect their ability to
obtain other employment.*fn1 In DePaoli v. Abbott Lab.s, 140 F.3d 668
(7th Cir. 1998), the Seventh Circuit held that the plaintiff had
presented sufficient evidence from which a jury could find that her hand
injury tendinitis and tenosynovitis prevented her from performing
more than just her Abbott production line job. The court cited to two
doctors' reports that agreed that the plaintiff had become disabled from
performing virtually any employment that required repetitive motions of
her right hand. Id. at 673. In DePaoli, the hand was usable for less
strenuous work, and the doctors saw no need to impose a weight lifting
restriction on the plaintiff. Nevertheless, the court still found that
the doctors' opinions indicated that the plaintiff was precluded from a
wide group of jobs in the Chicago area economy: virtually any assembly
line job that required repetitive movement. Id. (citing to 29 C.F.R. Part
1630 Appendix § 1630.2(j), which states that a back condition that
prevents an individual from performing any heavy labor job would
substantially limit the individual in the major life activity of
Similarly, in Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997), the
Seventh Circuit held that the plaintiff had presented enough evidence to
survive summary judgment where the doctor's advice that the plaintiff
should "find another line of work" due to his knee injury showed that his
disability might preclude him from all truck drivers' jobs, not just the
job he had done for Shell. Id. at 548. In Best, the employer had refused
to accommodate the plaintiff truck driver's impaired knee by giving him a
truck with sufficient leg room to avoid the need to flex his knee beyond
position. The record did not show how many truck driving jobs required the
ability to operate a truck with a clutch or how often the configuration
of the Peterbilt seat, painful to the plaintiff, occurred. Nevertheless,
the court found that the statements from the plaintiff's doctor and
another witness were sufficient to raise an issue of fact as to whether
the plaintiff would be precluded from all truck driving jobs.
In addition, in Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir.
1996), the Seventh Circuit held that the nature of plaintiff's shoulder
injury was sufficient for a reasonable jury to conclude that the
plaintiff would be disqualified from a broad range of jobs. Id. at 911.
The court looked at the physical restrictions the plaintiff's physician
placed upon him no overhead work, heavy lifting, or pulling and pushing
out from his body, and held that a reasonable jury may find that those
restrictions apply to a broad range of jobs. Id. The court stated: "As
with the example of the bad back in the regulations, Cochrum's shoulder
injury could disqualify him from any position at the mine, or in related
work such as construction. Given the breadth of his physician's physical
restrictions, a reasonable jury could conclude that Cochrum's shoulder
impairment does substantially limit his ability to work." Id.
In two other Seventh Circuit cases, however, the Seventh Circuit held
that evidence of doctors' restrictions as to lifting and other
non-numerical evidence was not sufficient to show that a back and
shoulder injury limited the plaintiffs' ability to engage in a class of
jobs. In Contreras v. Suncast Corp., 237 F.3d 756 (7th Cir. 2001), the
plaintiff claimed that he was substantially limited in the major life
activity of working because he was unable to lift in excess of 45 pounds
for a long period of time, unable to engage in strenuous work, and unable
to drive a forklift for more than four hours a day. Id. at 763, The
court, however, held that such inabilities failed to constitute a
significant restriction on one's capacity to work under the ADA. Id.
Similarly, in Peters v. City of Mansion, 311 F.3d 835 (7th Cir. 2002),
the plaintiff only presented evidence of his physician-imposed
restrictions, which included a 50-pound lifting prohibition. Id. 843-44.
The Seventh Circuit held this evidence insufficient to survive summary
In the case at bar, Lutter's physician-imposed restrictions were
substantially more extensive than a 45 to 50 pound lifting restriction.
Lutter was prohibited from lifting more than 25 pounds, and he was
restricted from repetitive bending and twisting, as well as standing for
long periods of times. Lutter has presented evidence similar to that
presented in Cochrum, Best, and DePaoli, and the Seventh Circuit held that
with such evidence a reasonable jury may find a plaintiff was precluded
from performing the class of heavy labor jobs. Although Lutter has
presented no evidence that he would be unable to work in retail sales or
as a cashier at a store counter, Lutter has presented sufficient evidence
from which a reasonable jury could find that Lutter is substantially
limited in the major life activity of working in "factory positions
requiring manual labor."*fn2
B. Is Lutter A Qualified Individual Under The ADA?
Once an ADA claimant has established that he or she is disabled, the
claimant must also show that he or she is a qualified individual. A
qualified individual with a disability is defined as "an 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." 42 U.S.C. § 12111(8). The plaintiff bears the
burden of proof to show he is a "qualified individual." DeLuca v.
Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995).
1. Route Truck Driver Position
Lutter and RBC do not dispute that Lutter could not perform the
essential functions of route truck driver at the time Lutter was
terminated. Like the plaintiff in Cochrum, Lutter told Rinella repeatedly
that given his doctors' restrictions, he was unable to perform the job of
route truck driver. Cochrum, 102 F.3d at 912. Although Lutter suggests
that he may be able to perform the job of RTD with a helper, this would
be tantamount to reallocating the primary duties of the route truck
driving job, and an employer "is not required to reallocate essential
functions." 29 C.F.R. ¶ 1630.2(o). See also Basith v. Cook County,
241 F.3d 919, 929 (7th Cir. 2001); Cochrum, 102 F.3d at 912 (citing
Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991) (employee's request to
assign coworkers to assist with physically demanding aspects of job
employee could no longer perform was not request for reasonable
accommodation because it sought elimination of essential functions of
2. Warehouse Position
Nevertheless, Lutter claims that he was able to perform the essential
functions of the job with reasonable accommodation. The reasonable
accommodation Lutter sought was a permanent transfer to a warehouse
position at RBC. The term "reasonable accommodation" may include: "job
restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals with
disabilities." 42 U.S.C.A. § 12111(9)(B). An accommodation is not
reasonable, however, if it would "impose an undue hardship on the
operation of the business of such covered entity." 42 U.S.C.A. §
12112(b). "Undue hardship" is defined as an "action requiring significant
difficulty or expense" when considered in light of the nature and cost of
accommodation required, and the overall financial resources and structure
of the employer. 42 U.S.C.A. § 12111(10)(A-B).
The ADA requires an employer to consider reassigning a disabled
employee to a different, vacant position as a reasonable accommodation
where the employee can no longer perform the essential functions of their
current position. DePaoli, 140 F.3d at 675;42 U.S.C. § 12111(9)(B);29
C.F.R. Pt. 1630, App. § 1630.2(o). Section 12111(9)(B) "has the effect of
making the duty to transfer to another position roughly commensurate with
the full class or range of jobs the employee is capable of performing."
DePaoli, 140 F.3d at 675. However, the ADA only requires an employer to
reassign a disabled employee to a position for which the employee is
otherwise qualified. Cochrum, 102 F.3d at 913. Nothing in the ADA
requires an employer to abandon its legitimate, nondiscriminatory company
policies defining job qualifications, prerequisites, and entitlements to
intra-company transfers. DePaoli, 140 F.3d at 675.
When considering reassignment, "the employer must first identify the
full range of alternative positions for which the individual satisfies
the employer's legitimate, nondiscriminatory prerequisites, and then
determine whether the employee's own knowledge, skills, and abilities
would enable her to perform the essential functions of any of those
alternative positions, with or without reasonable accommodations." Dalton
v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-79 (7th Cir. 1998).
See also Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694-95 (7th
Cir. 1998). The employer's duty to accommodate requires it to consider
transferring the employee to any of these other jobs, including those
that would represent a demotion. Id. See 29 C.F.R. § 1630.2(j)(3)(ii)(C);
29 C.F.R. Pt. 1630, App. § 1630.2(o).
RBC contends that transferring Lutter to the warehouse was not a
accommodation. First, RBC claims that its placement of Lutter in
the warehouse was only a light-duty, temporary assignment until Lutter
recovered from his injury and was able to return to his permanent
position as RTD. Second, RBC argues that there was no vacant position in
the warehouse to which Lutter could be assigned. Third, RBC claims that
Lutter could not perform the essential functions of the warehouse job.
a. Was the Warehouse Position Temporary or Permanent?
If the warehouse job is considered only a temporary position, RBC would
have no duty to assign Lutter permanently to that position because the
ADA does not require employers to convert temporary light duty
assignments into permanent ones. Malabarba v. Chicago Tribune Co.,
149 F.3d 690, 696 (7th Cir. 1998). If warehouseman became Lutter's
permanent job, however, then the Court must analyze whether Lutter could
perform the essential functions of the warehouse job with or without
reasonable accommodation. In Hendricks-Robinson, the employer created a
distinct pool of light-duty positions for injured employees.
Hendricks-Robinson, 154 F.3d at 697-98. However, the light-duty positions
had no end-date, no specified period for holding the job, and they were
not specifically designated as "temporary." Id. The employees remained in
those jobs until a medical decision concerning the permanence of their
disabilities was rendered. Id. The Seventh Circuit held that genuine
issues of fact remained as to whether the jobs were temporary and whether
the injured employees knew that the jobs in which they initially were
placed were temporary or whether they could consider the jobs a reasonable
accommodation for their impairments. Id. Moreover, the court held that
"if the job in which an injured employee was placed is in fact a vacant
permanent job, . . . and it is suitable for an employee with a
disability, then the employee's assignment to that position must be
treated as a reassignment to a permanent job for purposes of
accommodation. Id. (citing
EEOC Enforcement Guidance, 8 FEP Manual at 405:7402 ("In some cases, the
only effective reasonable accommodation available for an individual with
a disability may be similar or equivalent to a light-duty position. The
employer would have to provide that reasonable accommodation unless the
employer can demonstrate that doing so would impose an undue
In the case at hand, RBC did not have a distinct pool of light duty
positions, and Lutter was assigned to the warehouse for over a year. In
addition, Lutter has presented evidence that other employees had been
permanently transferred to the warehouse job from RTD and other jobs
after they requested less physically demanding work, such as Markauskas,
Harwood, and Swanson. RBC argues, however, that Rinella and Lutter
maintained the goal that Lutter would return to the RTD position through
the summer of 1999, and thus it was clear that the warehouse job was
temporary until Lutter recovered enough to perform the RTD position.
Lutter, however, made clear to Rinella and his doctors by September 1999
that he did not feel he could perform the RTD job. Nevertheless, Lutter
remained in the warehouse position through his termination in November
RBC also contends that he indicated that the warehouse job was a
light-duty job in a note he wrote to Lutter on October 6, 1998, where
Rinella stated that he "can accommodate light duty that limits lifting/
warehouse work." However, Lutter's knowledge that the warehouse job was a
"light-duty" job is not sufficient to demonstrate that the job was also
temporary. See Hendricks-Robinson, 154 F.3d at 697-98. Moreover,
RBC paid Lutter according to the warehouseman's scale. Under the
applicable collective bargaining agreement, someone who was classified as
a route truck driver but was merely performing warehouse duties would
have been paid one and one-half times the warehouse scale, indicating
that RBC may have reclassified Lutter as a warehouseman. In addition,
although Lutter admitted as late as July 1999 that he expected to return
to work as an RTD, that same
month Dr. Ross stated that it was doubtful that Lutter would ever
be able to return to full duty work with or without surgery. Therefore,
the Court finds that there are competing issues of fact as to whether the
warehouse job was temporary or permanent.
b. Was There A Vacant Position In The Warehouse?
RBC next claims that there was no vacant position in the warehouse for
Lutter to assume at the time Lutter was terminated. See McCreary v.
Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997). Rinella
confirmed that there were no openings in the warehouse as of March 1999.
An employer is not required to "bump" other employees to create a
vacancy, nor is an employer obligated to create a "new" position for a
disabled employee. Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th
Lutter, however, has presented sufficient evidence of a vacancy,
without the need to "bump" other employees, to preclude granting summary
judgment on this point. Lutter first points to the fact that he worked 40
hours per week at the warehouse for over a year, and he was never without
work. In addition, Lutter has presented evidence that there was a vacancy
in the warehouse in April 1999 and again in December 1999, right around
the time that Lutter was fired. After Bob Harwood requested to be
transferred from his RTD position in January 1999 to obtain a less
physically demanding job until he retired Rinella placed him in the
warehouse on April 5, 1999. Harwood continued to work as a warehouse
employee until he retired on December 31, 1999. When Harwood retired,
Rinella placed Kevin Swanson in the warehouse in early 2000 as his
replacement. Swanson had requested less physically demanding work because
he was getting older, his knees were getting bad, and he could not stand
or go down stairs. In addition, Kruse testified that when Swanson came
into the warehouse there was work for him to do, and his placement in the
warehouse did not impact
anyone else's work. Swanson continues to work in the warehouse to
this date. Thus, Lutter has presented a genuine issue of material fact as
to a vacancy in the warehouse.
c. Could Lutter Perform The Essential Functions Of The Warehouse
RBC maintains that even if there was a vacant position, Lutter could
not perform all the essential functions of the warehouse position. "The
ADA may only require an employer to reassign a disabled employee to a
position for which the employee is otherwise qualified." Cochrum, 102 F.3d
at 913. RBC argues that Lutter was not qualified for the warehouse
position because he could not perform the essential functions of the
warehouse job with or without reasonable accommodation.
The ADA requires "an employer to make whatever accommodations are
reasonably possible in the circumstances to perform the functions
essential to his position, including removing nonessential functions from
the job." Hoffman v. Caterpillar, Inc., 256 F.3d 568, 577 (7th Cir.
2001); 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o). However, "reasonable
accommodation does not encompass real location of essential job
functions," Cochrum, 102 F.3d at 913, and the employer need not
accommodate the employee so that he may perform any nonessential function
he chooses. Hoffman, 256 F.3d at 577. Thus, the Court must first
determine what are the essential functions of the warehouse job.
To determine whether a job function is essential, courts considers a
number of factors, including "the employer's judgment, written job
descriptions, the amount of time spent on the function, the consequences
of not requiring the function, and the work experiences of those
performing the job." 29 C.F.R. § 1630.2; Basith v. Cook County, 241 F.3d 919,
927 (7th Cir. 2001). Although courts looks to see if the employer
actually requires all employees in a particular position
to perform the allegedly essential function, courts avoid second-guessing
the employer's judgment. DePaoli, 140 F.3d at 674. Functions may be
"essential" even if not frequently performed, as long as they serve a
valid employer interest. Doner v. City of Rockford, Il., No. 03-1643,
2003 WL 22345473, at *2 (7th Cir. Oct. 8, 2003) (citing DePaoli, 140 F.3d
at 674; Basith, 241 F.3d at 929).
There was no written job description of a warehouse position at the
time of Lutter's employment with RBC. Rather, both RBC and Lutter have
set forth an extensive list of duties for warehouse employees. While
Lutter could perform most of these duties, he could not perform all of
them, including: (1) substituting for RTDs; and (2) running drop truck
deliveries to small businesses, where he had to manually remove product
from the truck, stack it on a pull cart, pull the cart into the
establishment, and then unload the product manually. In addition, Lutter
had difficulty building and stacking pallets of product and shrink
wrapping pallets, and he would only perform these functions on the rare
occasion when no one else was available because they involved repetitive
lifting and bending. Lutter also had pain while sweeping floors, and he
took occasional breaks to manage his pain. Kruse, Lutter's supervisor,
also commented that he was not performing the warehouse job
satisfactorily, at times calling him lazy or a wimp and accusing him of
RBC in effect argues that the duties Lutter could not perform
constitute essential functions of the warehouse job, and Lutter was thus
not qualified for the job under the ADA. Lutter, however, contends that
these were not essential functions; and that even if they were, he would
be able to perform them with reasonable accommodation. First, Lutter
argues that substituting for RTDs was not an essential function of the
job. Lutter points out that no employee specifically mentioned this
function when asked the duties of a warehouseman in their deposition. In
addition, Lutter argues that warehousemen rarely substituted for RTDs and
that it was thus not an essential function because:
(1) during the entire nine months that Harwood worked as a warehouse
employee, he substituted for an RTD on exactly four occasions; (2)
Markauskas almost never substituted for RTDs; and (3) Kruse on a few
occasions ran routes by himself or would maybe run one with a summer
helper. As for the other functions Lutter could not perform, Lutter
admits that they were frequently performed by warehousemen. Lutter
argues, however, that they were not essential because there were so many
other functions that Lutter could perform and other warehousemen could
perform those functions for him.
RBC counters that, due to its lean operation, it required its warehouse
employees to be able to perform all warehouse functions, including
backing up RTDs. In addition, Lutter admits that warehousemen worked
together to get tasks done, and thus they performed all of the different
functions at various times depending on what needed to be done at a
particular time. Indeed, functions may be "essential" even if not
frequently performed, as long as they serve a valid employer interest.
Doner, 2003 WL 22345473, at *2 (citing DePaoli, 140 F.3d at 674; Basith,
241 F.3d at 929). Moreover, showing that not all employees perform at a
particular time all the essential job functions also does not make those
functions non-essential. Winfrey v. City of Chicago, 259 F.3d 610, 616
(7th Cir. 2001). In Winfrey, as in our case, the employer claimed that
the employees must be capable of performing all the essential duties of
their position even though they were not regularly performed because they
may be called upon to perform any of them at any time. Id. The Seventh
Circuit held that the employer had presented a legitimate business
concern that the employees must be able to perform whatever function was
needed at any time. Id.
The Seventh Circuit has routinely upheld employers' reasonable
decisions to require their employees to rotate through different
functions and positions, and the court has upheld these as
essential functions. Watson v. Lithonia Lighting, 304 F.3d 749, 751 (7th
Cir. 2002). "If an employer has a legitimate reason for specifying
multiple duties for a particular job classification, duties the occupant
of the position is expected to rotate through, a disabled employee will
not be qualified for the position unless he can perform enough of these
duties to enable a judgment that he can perform its essential duties."
Miller v. Illinois Dept, of Corrections, 107 F.3d 483, 485 (7th Cir.
1997). In addition, courts consider the employer's judgment as to what
functions of a job are essential. 42 U.S.C. § 12111(b)(8). "[A]lthough we
look to see if the employer actually requires all employees in a
particular position to perform the allegedly essential functions, we do
not otherwise second-guess the employer's judgment in describing the
essential requirements for the job." Basith, 241 F.3d at 928. Under the
Seventh Circuit's interpretation of the ADA, RBC has presented a
legitimate business reason for requiring employees to perform each
essential job function., including the job of RTD.
In the alternative, Lutter argues that he would have been able to
perform the essential functions of the warehouse job with reasonable
accommodation. However, the only accommodation Lutter suggests is
assigning the functions he cannot do to someone else in the warehouse,
and an employer is not required to reallocate essential functions.
Cochrum, 102 F.3d at 913. See also Jay v. Internet Wagner Inc.,
233 F.3d 1014, 1017 (7th Cir. 2000) (an employer is not required to
shuffle job responsibilities amongst employees to create a position to
accommodate an employee's disability). Thus, Lutter has failed to produce
sufficient evidence to establish a genuine issue of material fact as to
his ability to perform the essential functions of the warehouse job with
or without reasonable accommodation. As a consequence, Lutter is not a
"qualified individual" and thus is not eligible for protection under the
As a final effort, Lutter claims that RBC should have discussed with
Lutter any other positions Lutter may have been able to perform when it
terminated Lutter from the warehouse job. Instead, RBC told Lutter he
could only come back if he could fulfill the route truck driver duties.
An employer, however, is not required to find a third job for an
employee. "In order to avoid an infinite regression on the accommodation
issue, however, in this context the term [`qualified'] logically cannot
include transfer to yet a third job. All such jobs must be considered at
the same time, as possible accommodations for the employee whose
disability prevents her from performing her first job." Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-79 (7th Cir. 1998).
Thus, if Lutter could not perform the functions of the warehouse position
with or without reasonable accommodation, then contrary to Lutter's
arguments, RBC did not have to consider reassignment again as a form of
accommodation, and Lutter is not a "qualified individual" and thus is not
eligible for protection under the ADA.
IV. Retaliatory Discharge Claim
Lutter also filed a claim for retaliatory discharge under the Illinois
Workers' Compensation Act, 820 ILCS 305/1 et seq. ("IWCA"). Lutter claims
that RBC fired him in retaliation for Lutter's hiring an attorney and
filing a workers' compensation claim under the IWCA.
This Court has supplemental jurisdiction over this state law claim
under 28 U.S.C. § 1367(a). The Court's original jurisdiction derives
from the federal ADA claims that Lutter properly brought before it.
Section 1367 states that "in any civil action of which the district
courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form
part of the same case
or controversy under Article III of the United States Constitution."
28 U.S.C.A. § 1367. The Seventh Circuit has held that this statute codifies
the principle that "the federal courts' original jurisdiction over
federal questions carries with it jurisdiction over state law claims that
`derive from a common nucleus of operative fact,' such that `the
relationship between [the federal] claim and the state claim permits the
conclusion that the entire action before the court comprises but one
constitutional `case.'" Groce v. Eli Lilly & Co., 193 F.3d 496, 500 (7th
Cir. 1999) (citing City of Chicago v. Int'l College of Surgeons,
522 U.S. 156, 164-65 (1997)). In Groce, as in our case, the plaintiffs
state law claims arose out of the same set of facts those regarding his
employment and termination from his employer as his federal claim.
Therefore, as in Groce, this Court has subject matter jurisdiction under
28 U.S.C. § 1367(a) to decide Lutter's state law claims. Groce, 193 F.3d
Although Section 1367(c) allows a district court not to assume
supplemental jurisdiction over a claim when it has dismissed all claims
over which it had original jurisdiction, courts have the discretion to
determine whether a state law claim should be resolved because of other
considerations like judicial economy, convenience, fairness, and comity.
Horwitz v. Board Of Educ. of Avoca School Dist. No. 37, 260 F.3d 602, 617
(7th Cir. 2001). In Horwitz, as in our case, the trial court had resolved
the federal issues in the case. However, the Seventh Circuit held that
the district court appropriately decided to resolve the plaintiff's state
law defamation claim because: (1) neither side contended that the
defamation claim did not form part of the same Article III case or
controversy as the other federal claims over which the district court did
have original jurisdiction; (2) the plaintiff's claim was ripe; (3)
Illinois law on the issue (defamation) was well-settled and
straightforward; (4) the litigation was over two-years-old; and (4)
discovery had been closed. Id. These same four
prongs apply in the instant case. Therefore, this Court has subject matter
jurisdiction over Lutter's state law retaliation claim. See also,
Williams v. Seniff, 342 F.3d 774, 794 (7th Cir. 2003) (district court
properly maintained jurisdiction over state law claim where sending the
case to another court would cause a substantial duplication of effort
because discovery has been completed, and a transfer to state court would
not permit the plaintiff to uncover additional facts to support his
B. Did RBC Retaliate Against Lutter?
Lutter's sole evidence of retaliation is that: (1) he was terminated on
November 12, 1999, one day after Rinella admits to having a conversation
with his workers' compensation attorney regarding the inability to settle
Lutter's claim; and (2) Rinella yelled at Lutter when he first found out
Lutter had hired an attorney and filed a workers' compensation claim.
RBC, however, claims that Lutter's retaliation claim is frivolous because
they had a legitimate reason to terminate Lutter: he could not perform
the essential functions of RTD or warehouseman. In addition, for more
than 14 months after Lutter's request for workers' compensation benefits,
RBC worked with Lutter to attempt to restore him to full employment, and
encouraged, rather than discouraged, him to seek workers' compensation
benefits. Furthermore, RBC kept Lutter employed during this time.
The IWCA makes it unlawful for an employer to retaliate against
employees for exercising their rights or remedies granted by the Act. 820
ILCS 305/4(h). Illinois recognizes an independent cause of action for
retaliatory discharge for employees whose employment is terminated as a
result of their exercise of rights under the statute, including the right
to file a workers' compensation claim. Borcky v. Maytag Corp.,
248 F.3d 691, 695-96 (7th Cir. 2001) (citing demons v. Mech. Devices
Co., 184 Ill.2d 328, 334, 704 N.E.2d 403, 406 (Ill. 1998); Kelsay v.
Motorola, Inc., 74 Ill.2d 172, 182, 384 N.E.2d 353, 357 (Ill. 1978)). To
recover damages for this tort, "an employee must prove:
(1) that [she] was an employee before the injury; (2) that [she] exercised
a right granted by [the Illinois] Workers' Compensation Act; and (3) that
[she] was discharged and that the discharge was causally related to [her]
filing a claim under the Workers' Compensation Act." Id. Borcky, 248 F.3d
The parties agree on the first two prongs of the test for retaliation
under Illinois law Lutter was an employee before the injury, and
he filed a workers' compensation claim as allowed by the IWCA. In
addition, the Court finds that Lutter was, indeed, discharged. RBC's
contention that it terminated Lutter's warehouse position, but not his
RTD position (because RBC offered Lutter continued employment provided he
could work as an RTD), is without merit as this Court has found Lutter
was unable to perform the essential functions of RTD when he was
terminated from RBC. The parties, however, disagree as to whether Lutter
has presented sufficient evidence such that a reasonable jury could find
that Lutter's discharge was causally related to his filing a claim under
the Workers' compensation Act.
Although the parties did not address the issue, there is some question
whether the burden-shifting method set forth m McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), should apply to state discrimination and
retaliation causes of action that are litigated in federal court.
Borcky, 248 F.3d at 696. The Illinois Supreme Court has held that in
retaliatory discharge cases an employer is not required to come forward
with an explanation for an employee's discharge. demons, 184 Ill.2d at
335, 704 N.E.2d at 406. The Illinois Supreme Court held that it remains
the plaintiff's burden to prove the elements of the cause of action by a
preponderance of the evidence, including a causal connection between the
lodging of the complaint and his being fired, as in a traditional tort
analysis. Id. The Seventh Circuit, however, contrary to its sister
circuits, has held
that Illinois retaliatory discharge cases brought in federal court may be
analyzed using the burden-shifting method presented in McDonnell Douglas
because the McDonnell Douglas standard is procedural as it regulates
merely the order of proof. Bourbon v. Kmart Corp., 223 F.3d 469, 473-74
(7th Cir. 2000) (citing McEwen v. Delta Air Lines, Inc., 919 F.2d 58 (7th
In this case, however, as in Borcky, the same result would obtain if
the Court applies the tort analysis or the McDonnell Douglas analysis.
Under McDonnell Douglas, once a plaintiff establishes a prima facie case
of discrimination, the defendant has the burden of coming forward with a
legitimate, non-discriminatory reason for discharging the plaintiff.
Borcky, 248 F.3d at 696 (citing McDonnell Douglas, 411 U.S. at 802). If
the defendant meets this burden, the plaintiff must show that the
legitimate, non-discriminatory reason asserted by the employer is
pretextual. Borcky, 248 F.3d at 696 (citing McDonnell Douglas, 411 U.S. at
804). Lutter's claim fails under either method because as in Radke v.
Taco Bell, Lutter failed to establish a prima facie case of retaliation
under Illinois law, and RBC offered a valid, non-pretextual reason for
Lutter's discharge that Lutter was medically unable to perform the
job. Radke v. Taco Bell Corp., No. 02-1924, 2003 WL 1827218, at *3 (7th
Cir. Apr. 2, 2003).
Concerning the only disputed element in Lutter's retaliation claim,
causation, the ultimate issue to be decided is the employer's motive in
discharging the employee. Hartlein v. Illinois Power Co., 151 Ill.2d 142,
163, 601 N.E.2d 720 (Ill. 1992). Causation is not established if the
basis for the discharge is valid and nonpretextual. Heldenbrand v.
Roadmaster Corp., 277 Ill. App.3d 664, 668, 660 N.E.2d 1354, 1357
(Ill.App.5th Dist 1996); Marin v. American Meat Packing Co.,
204 Ill. App.3d 302, 307, 562 N.E.2d 282, 285 (Ill.App. 1st Dist. 1990)
(The causality element, therefore, requires more than a discharge in
connection with filing a claim.) Under Illinois retaliatory discharge
law, an employer may terminate an employee who was medically unable to
perform his job. Id. RBC has alleged that its valid and non-discriminatory
reason for terminating Lutter was that Lutter was medically unable to
perform the essential functions of his route truck driving and warehouse
duties. Lutter himself admitted that he could not perform the RTD job,
and this Court has already found that Lutter could not perform the
essential functions of the warehouse job.
Lutter, however, claims that RBC's reason is merely a pretext because
the timing of his discharge is sufficient to raise an issue of fact as to
RBC's retaliatory motive. First, Lutter claims that when he first told
Rinella that he was hiring a workers' compensation attorney in September
1998, Rinella was extremely upset and yelling. However, that was 14
months before Rinella was terminated, and Lutter stated that he and
Rinella never discussed the issue again. Second, Lutter claims that one
day before Lutter was terminated, Rinella informed RBC's workers'
compensation attorney that the union would not cooperate with a
settlement that called for payment of pension benefits to Lutter. Rinella
thought the attorney said something to the effect of "there was no end in
sight for a settlement." Lutter claims that this comment one day before
Lutter was terminated shows a causal connection between Lutter's workers'
compensation claim and his discharge.
Although timing may be probative of motive under Illinois retaliatory
discharge law, the timing of the discharge standing alone is not enough.
Davis v. Times Mirror Magazines, Inc., 297 Ill. App.3d 488, 496-97,
697 N.E.2d 380, 387 (Ill.App. 1st Dist. 1998).*fn3 Therefore, the fact
Lutter was terminated the day after Rinella had a conversation with his
attorney a full 14 months after Lutter filed his workers' compensation
claim (the protected conduct) is insufficient to prove causation.
Likewise, Rinella's alleged anger at Lutter's filing of his claim 14
months before Lutter's termination is insufficient to prove causation
where Rinella and Lutter never again discussed the issue. Thus, Lutter
has failed to present sufficient evidence in the record to create a
genuine issue of material fact regarding the causal connection between
Lutter's termination and his workers' compensation claim.
Due to the foregoing, this Court finds no genuine issues of material
fact have been raised, and the Court grants summary judgment in favor of
RBC on all counts.
IT IS SO ORDERED.