United States District Court, N.D. Illinois
March 9, 2004.
LENNIE LOBERG, Plaintiff,
GORDON FLESCH COMPANY, INC., Defendant
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Lennie Loberg was employed as a field technician by defendant
Gordon Flesch Company, Inc. ("Gordon Flesch") from June 1987 until his
termination on April 13, 2003. On November 24, 1997, Mr. Loberg sustained
a work related injury that resulted in cellulitis of his right arm.
Mr. Loberg subsequently developed lyphedema and pain in his right middle
finger, diagnosed as Raynaud's phenomenon. In November 2000, Mr. Loberg
filed a claim for worker's compensation with the Industrial Commission.
Mr. Loberg claims that his damaged lymphatic system constitutes a
disability under the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq. Mr. Loberg alleges that Gordon Flesch failed to
accommodate his disability (Count I); refused to train or rehire him
because of his disability (Counts II-IV); wrongfully terminated him in
retaliation for filing a worker's compensation claim (Counts V and VI);
and intentionally and negligently inflicted emotional distress on him
(Counts VII and VIII. Gordon
Flesch moves for summary judgment on all counts. The motion is granted in
part and denied in part.
Summary judgment is appropriate where the record and affidavits, if
any, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Lexington Ins.
Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999); Fed.R.Civ.P.
56(c). I must construe all facts in the light most favorable to the non
moving party and draw all reasonable and justifiable inferences in
favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). While I construe the facts in the most favorable light to Mr.
Loberg, his failure to properly respond to Gordon Flesch's statement of
undisputed facts renders all those facts admitted. Schulz v. Serfilco,
Ltd., 965 F.2d 516, 518-19 (7th Cir. 1992).
Counts I-IV of Mr. Loberg's complaint allege violations of the ADA,
including failure to accommodate his disability and failure to rehire or
train him. Gordon Flesch argues that summary judgment should be granted
on these claims because Mr. Loberg's impairment does not meet the
definition of "disability" under the ADA. A "disability" under the ADA
(A) a physical or mental impairment that substantially
limits one or more of the major life activities of
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Mr. Loberg attempts to proceed under all three
While Gordon Flesch concedes that Mr. Loberg has an impairment, Mr.
Loberg must also show that his impairment "limits a major life activity"
to qualify as a disability. Toyota Motor Manuf. Kentucky, Inc. v.
Williams, 534 U.S. 184, 195 (2002). The limitation must also be
substantial. Id. Further, the limitations must render Mr. Loberg "unable
to perform the variety of tasks central to most people's daily lives,"
not merely affect his ability to perform tasks specifically associated
with his job. Id. at 200-01. Mr. Loberg states that he must take especial
care when performing tasks that may result in nicks or cuts to his hands
and arms, such as gardening, repair work and maintenance at home,
cooking, and repair work on the job. However, Mr. Loberg admits that his
impairment does not prevent him from performing these tasks, but merely
makes them unpleasant or more difficult. While this limitation on his
activities is unfortunate, it does not rise to the level of a disability
under the ADA.
Mr. Loberg argues that he may also proceed under the second option,
that of having a "record of such an impairment." 42 U.S.C. § 12102(2)
(B). However, this argument fails for the same reasons stated above. Mr.
Loberg must show "not merely a diagnosis, but a record reflecting the
kind of impairment that would impose a substantial limitation on one or
more of [his] major life
activities." Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 510 n.7
(7th Cir. 1998). Mr. Loberg presents no such evidence. His evidence
relating to a brief hospitalization and two letters from his doctor that
relate his need to avoid nicks and cuts are insufficient. See, e.g.,
Ogborn v. United Food and Commercial Workers Union, 305 F.3d 763, 767-68
(7th Cir. 2002).
Finally, Mr. Loberg argues that he may proceed under the third option,
"being regarded as having such an impairment." 42 U.S.C. § 12102(2) (C).
This option requires that the employer regard the plaintiff's impairment
as generally limiting his ability to work. Davidson, 133 F.3d at 510. The
limitation must again be substantial, as required under the first
option. Id. at 511. The record does reflect that Gordon Flesch regarded
Mr. Loberg as having an impairment. The remainder of the evidence is
disputed. Gordon Flesch is not entitled to summary judgment on this
claim. Gordon Flesch's motion for summary judgment with respect to Counts
I-IV is GRANTED.
Counts V and VII allege that Mr. Loberg was terminated in retaliation
for filing a Worker's Compensation claim for an injury sustained on the
job. To recover damages for such a claim, Mr. Loberg must show (1) that
he was employed by Gordon Flesch, (2) that he exercised a right granted
by the Workers' Compensation Act, (3) that he was terminated, and (4)
that his termination was
causally related to the exercise of his rights. demons Clemons v.
Mechanical Devices Co., 704 N.E.2d 403, 406 (Ill. 1998). Gordon Flesch
does not contest the first three elements, but argues that Mr. Loberg's
termination was not causally related to his Workers' Compensation claim.
Instead, Gordon Flesch claims that Mr. Loberg was terminated because of a
decline in available work that accommodated Mr. Loberg's impairment and
because of a general hiring freeze and reduction in force. As Gordon
Flesch has brought forth a legitimate reason for Mr. Loberg's
termination, it remains Mr. Loberg's burden to show that the reason
offered is pretextual. Id.
Mr. Loberg raises a genuine question of material fact as to Gordon
Flesch's motive for terminating him. He argues that the timing of his
termination, in connection with the filing of his claim, presents
evidence of causation. Mr. Loberg filed his claim in November 2000 and
was terminated in April, 2001. He also claims that he was the only
employee terminated at the time, despite Gordon Flesch's defense that Mr.
Loberg's position was eliminated for ecomonic reasons, and Mr. Loberg
presents evidence that someone else was immediately hired into his
Mr. Loberg's arguments are sufficient to create a genuine issue of
material fact as to Gordon Flesch's motive for terminating him. Gordon
Flesch's motion for summary judgment with respect to Counts V and VI is
Counts VII and VIII respectively allege that Gordon Flesch
intentionally and negligently inflicted emotional distress on Mr.
Loberg. To sustain a claim for intentional infliction of emotional
distress, Mr. Loberg must show that the conduct complained of was extreme
and outrageous; that Gordon Flesch either intended to inflict severe
emotional distress or knew there was a possibility of causing such
distress; and that the conduct in fact caused severe emotional distress.
Welsh v. Commonwealth Edison Co., 306 Ill. App.3d 148, 154 (III. App.
Ct. 1999). The elements of the tort are separate from those required to
prove his Illinois Human Rights Act claim. It is up to the trier of fact
to determine whether, if the facts support Mr. Loberg's claims, the
conduct was extreme and outrageous. Count VII survives summary judgment.
Count VIII, however, will be dismissed. No facts have been shown that
create an issue of fact on Mr. Loberg's claim for negligent infliction of
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