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March 17, 2004.

BRIAN ZICH, Plaintiff,
GLENBROOK SCHOOL DISTRICT 225, PRINCIPAL MICHAEL RIGGLE, in his individual capacity, ASSISTANT PRINCIPAL WILLIAM BABINGTON, in his individual capacity, HUMAN RESOURCES DIRECTOR VICTORIA VELANDER-HEISER, in her individual capacity, PLANT OPERATOR JAMES QUINN, in his individual capacity, Defendants

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Plaintiff Brian Zich filed suit against Glenbrook School District 225*fn1 and several officials of Glenbrook North High School, alleging that they discriminated against him on the basis of his eye impairment in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; retaliated against him when he complained about the mistreatment; and deprived him of his right to equal protection of the law in violation of 42 U.S.C. § 1983, Defendants now seek summary judgment on all of Zich's claims. For the reasons explained here, the court finds no disputes of material fact concerning Zich's claims under the ADA. Defendants are entitled to judgment on those claims as a matter of law. Disputed facts preclude summary judgment on the merits of Zich's § 1983 claim, but the court concludes Defendants have qualified immunity on that claim, Accordingly, the motion is granted. Page 2


  Zich was hired to work as a maintenance helper in the Glenbrook North High School ("Glenbrook North") Maintenance Department in 1982. (Zich Dep., at 14.) He held that position until 1992 when he became a maintenance person.*fn3 (Id. at 15.) Also in 1992, Zich was injured in a non-job-related accident when a car battery exploded in his face. As a result of that accident, Zich is legally blind in his left eye. The vision in his right eye is normal, and Zich has learned to compensate for the loss of peripheral vision on his left side by turning his head a certain way. (Def. 56.1 ¶¶ 99-101.)*fn4

  Despite being blind in his left eye, Zich is able to care for himself, drive, use a computer, interact with his children, read, and participate in a variety of recreational activities, including golf, rollerblading, and fishing. Since the accident, Zich has participated in softball and bowling leagues, and he obtained a black belt in Tai Kwon Do. In fact, he is currently pursuing a career in martial arts and has been a Tai Kwon Do instructor for more than two years. (Def. 56.1 ¶¶ 102-113, 115.) Except for short periods immediately after surgery, Zich was always able to perform all the functions of his job as a maintenance worker, including air conditioning, heating, plumbing, and Page 3 electrical repairs which required him to use both heavy and light tools. (Id. ¶ 114; Zich Dep., at 30, 50-55; 159.)

 A. Zich is Appointed Lead Man

  James Quinn was hired as Gienbrook North's Plant Operator in September 1995. As Plant Operator, Quinn reports directly to Associate Principal William Babington and is responsible for supervising the maintenance, custodial, and grounds crews at Gienbrook North. (Def. 56.1 ¶¶ F, 1, 2.) Approximately six months after he was hired, Quinn decided to appoint a "lead man" to all of the maintenance and custodial shifts. (Id. ¶ 4.) Quinn designated Zich as lead man for the maintenance crew based on his seniority and experience. (Quinn Dep., at 15; PI, 56.1 ¶¶ 128, 129.)*fn5 As lead man, Zich did not receive any extra pay, but he did have his own parking space, telephone line, and pager. (Def, 56.1 ¶ 35; PI. 56.1 Resp. ¶ 35.)*fn6 The parties dispute whether the lead man had supervisory authority over other workers; Zich says he had such authority because he was responsible for allocating work assignments to the maintenance staff. (PI. 56.1 Resp. ¶ 5.) Quinn testified that the position was "not so much a supervisory, but a reporting authority" and that lead men provided "some level of authority in the building" if Quinn was not available to make a decision. (Quinn Dep., at 15-16; Def, 56.1 ¶ 5.) The parties agree that Zich was responsible for paperwork and phone calls which could absorb as much as half his workday. (PI. 56.1 ¶ 132; Def. 56.1 Resp. ¶ 132.)*fn7 He also helped coordinate the purchasing of maintenance items; served as a consulting resource for the other workers; and, in Quinn's absence, prioritized maintenance jobs and allocated assignments. (Id. ¶¶ 133-34, 140, 238; Def. 56.1 Resp. ¶¶ 133-34.) Even when Page 4 Quinn and Assistant Plant Operator Lamar Nicholson were present, the maintenance workers were required to follow Zich's direction. (Id. ¶ 239.)

 B. The Scheduling Change

  In late summer 2001, Quinn approached Babington about eliminating the lead man position. (Def. 56.1 ¶ 8.) According to Quinn, the Maintenance Department needed additional manpower due to Glenbrook North's expanded night school program, and the school could obtain the best coverage by including all maintenance workers in a rotating schedule. (Id. ¶¶ 10, 12, 13.) Specifically, instead of having all maintenance employees working from 6:00 a.m. to 2:3O p.m., there would be three maintenance men working from 6:00 a.m. to 2:30 p.m. and two maintenance men working from 10:00 a.m. to 6:30 p.m. (Id. ¶¶ 11, 25, 27.) In Quinn's view, the lead position needed to be eliminated so that there would be enough men to cover the extended shifts. (Quinn Dep., at 92.) Babington agreed that the school needed maintenance workers available after the regular school day ended at 3:00 p.m. due to the facility's continued use during evening hours. He also agreed that the lead man position should be eliminated to implement the shift change in a fair manner. (Def. 56.1 ¶¶ 26, 28, 37, 38, 59, 60; PI. 56.1 ¶ 222.) Quinn testified that he felt all maintenance workers should share equally in the new rotation "so it was not too rough on any individuals." (Quinn Dep., at 91.) He also stated that Zich's "abysmal attendance" and declining supervisory skills factored into his decision. (Id, at 69-70, 74-76; Def. 56.1 ¶¶ f 15, 18.)

  On September 14, 2001, Quinn and Babington held a meeting with the maintenance staff to announce the new rotating schedule and to discuss attendance in the department. (Def. 56.1 ¶¶ 11, 29.) Defendants claim that Babington discussed attendance to clarify the difference between vacation, sick leave, and emergency days; Zich says Quinn was angry because Zich and two other maintenance workers, Robert DeMaio and Alien Folkes, had all been out sick on the same day the previous week. (Id. ¶ 30; PL 56.1 Resp. ¶ 30.) Indeed, about a week before the Page 5 September 14 meeting, Quinn told maintenance worker Egrain Collazo that he was angry about the overlap in sick days and that Zich, DeMaio, and Folkes were taking too many days off, (PI. 56.1 ¶¶ 252, 253.) Regardless, Zich admits that the attendance concerns were directed towards the entire maintenance staff; Babington addressed his concerns in a memo to all maintenance workers, which he distributed at the meeting. (Zich Dep., at 95-96; Def. 56.1 ¶ 31; DX I.)

  In the same memo, Babington described the new rotating schedule. (DX i,) In discussing that schedule with the maintenance staff, Babington and Quinn also announced that the position of lead man was being eliminated. (Def. 56.1 ¶¶ 93, 116, 119.) The maintenance staff was generally opposed to the proposed rotating schedule and engaged in a heated exchange with Babington. Babington ultimately said that if people did not like the change, they could leave. (Id. ¶ 33; PI. 56, 1 ¶¶ 172, 173, 219.) At some point during the meeting, Zich stood and said, in effect, "I just want to put everyone on notice that I'm leaving." (Id, ¶¶ 94, 117.)

  Zich disputes that Quinn needed to eliminate the lead man position, claiming that the new schedule "had no logistical bearing on the Maintenance Department's ability to retain the position of lead maintenance man." (PI. 56.1 Resp. ¶ 10.) In support of this assertion, Zich cites deposition testimony from Alien Folkes, but Folkes stated only that he does not recall being told at the September 14 meeting that the lead man position was being eliminated because of a manpower shortage. (Folkes Dep., at 60-61.) Zich also suggests that manpower was not an issue because he always helped with his share of the maintenance work when he was the lead man. (PI. 56.1 ¶ 249.)

 C. Zich's Meetings with Glenbrook North Officials

  Sometime after the September 24, 2001 meeting but before October 1, 2001, Zich met with Human Resources Director Victoria Helander-Heiser at her office in Glenview, Illinois. (Def. 56, 1 ¶ 62.) Zich told Helander-Heiser that there was a "problem at North" that she needed to Page 6 investigate. (Id. ¶ 63; PI. 56.1 ¶ 283.) According to Helander-Heiser, Zich said that he did not want to give her any details about the problem even though she repeatedly asked him to elaborate on his concerns. (Id. ¶ 64.) Zich testified that he told Helander-Heiser that he was being treated more harshly than his co-workers because of a physical disability and his need to take time off from work. He is "sure" that Quinn's and Babington's names "were brought up" in connection with that discussion. (Zich Dep., at 126-27.) A day or two after meeting with Zich, Helander-Heiser spoke briefly to Babington about the conversation. (Helander-Heiser Dep., at 56-58; PI. 56.1 ¶ 284.) She does not recall whether Babington said he would look into the situation. She never spoke to Principal Michael Riggle or to Quinn about Zich's concerns. (PI. 56.1 ¶ 284.)

  On October 1, 2001, Zich's eye doctor, Kathleen M. Scarpullo, M.D., wrote a memo indicating that Zich was going to need eye surgery "in the near future," (PX M.) Quinn recalls seeing the memo, but does not remember exactly when. He does claim, however, that he knew nothing of Zich's further eye problems before Zich was removed as lead man on October 2, 2001. (PI. 56.1 ¶¶ 176, 177; Def. 56.1 Resp. ¶ 176; Quinn Dep., at 103-04.) Zich submitted a doctor's note dated October 2, 2001 indicating that he needed to be excused from work from October 2 to 7, 2001 due to "secondary eye pain."*fn8 (PX N; PI. 56.1 ¶ 178; Def. 56.1 Resp. ¶ 178.) Quinn does not recall seeing the note but concedes that Zich typically gave such notes to him and that he usually forwarded the originals to the Human Resources Department. (Quinn Dep., at 105-06.)

  On October 2, 2001, Quinn sent Zich a memo confirming that the lead man position would no longer exist effective October 9, 2001. Quinn assigned Zich to the 10:00 a.m. to 6:30 p.m. shift rotation and to the "normal Saturday maintenance coverage," which would involve working on Saturday approximately once every five weeks. Quinn also notified Zich that his hourly pay would Page 7 not be affected for the 2001-2002 school year, but that his contract would be reviewed at the end of the academic year (DX J; Def. 56.1 ¶¶ 46, 119; PI. 56.1 ¶ 17S.) Babington, who discussed the memo with Quinn before it went to Zich, wanted Zich to understand that if his performance was not acceptable, it would be reflected in his "contract pay"*fn9 the following year. (PL 56.1 ¶ 224.) Zich claims that Quinn posted the October 2 memo on the Maintenance Department bulletin board; Defendants dispute this claim. (Id. ¶ 291; Def. 56.1 Resp. ¶ 291.)

  On October 9, 2001, Zich obtained another doctor's note stating that he needed to be off work from October 8 to 13, 2001 due to "his eye condition." The note further indicated that Zich had eye surgery scheduled for October 29, 2001. (PX O; PL 56.1 ¶ 178; Def. 56.1 Resp. ¶ 178.) A few days before his surgery, on October 24, 2001, Zich met with Babington and Helander-Heiser. Babington explained that he scheduled meetings with each of the maintenance workers on an individual basis because he was not pleased with the way the September 14, 2001 meeting had gone and wanted to give each worker an opportunity to discuss solutions to the new scheduling demands. (Babington Dep., at 77; Def. 56.1 ¶¶ 41, 42.) Helander-Heiser attended those individual meetings at Babington's request. (Def. 56.1 ¶ 67.) During Zich's meeting, he admittedly said very little to Babington and Helander-Heiser: he never said that Quinn was treating him unfairly; he did not complain about any problems at Glenbrook North; he offered no suggestions regarding the schedule change; and he never reported that anyone had been treating him in a discriminatory, harassing, or spiteful manner. (Id. ¶¶ 43, 69-71.)

  The following day on October 25, 2001, Zich met with Dr. Riggle pursuant to an appointment Zich had made a few days earlier. Zich told Dr. Riggle that he was not being treated well by his supervisor and that he was unhappy about the changes to his lead man position. Dr. Riggle says that Zich declined to provide any details, but Zich testified that he told Dr. Riggle that Page 8 he was being mistreated "because of having to take time off, because of being handicapped." (Riggle Dep., at 34-35, 72-73; Zich Dep., at 128-29; PI. 56.1 ¶ 230.) Zich also claims that he told Dr. Riggle that he was being blamed for the fact that he and two other employees had all been off work the same day a few weeks earlier, and that he felt threatened by Babington, Quinn, and Helander-Heiser because they were taking away his lead position. (Zich Dep., at 105-07, 130.) At his deposition, Zich could not recall other specifics about his conversation with Dr. Riggle, but stated that he "pretty much sat down and started to break down and cry and told him what was going on in the maintenance department, what was happening to me and what I felt was wrong." (Id. at 129.)

  During his conversation with Dr. Riggle, Zich indicated that other maintenance workers were similarly displeased with the scheduling changes but he did not give any names. Zich also said that Quinn had given some training opportunities to Alien Folkes instead of to Zich, but he did not provide any details about those opportunities. Dr. Riggle testified that he asked Zich "several times" if there "were something of substance that [Riggle] could deal with and should be taking a look at and [Riggle] could record it," but Zich did not elaborate on his complaints. (Riggle Dep., at 36.) Dr. Riggle encouraged Zich to speak to Babington about his concerns, but Zich said that he did not feel it would do any good. (Id. at 34-38, 72-73; Def, 56.1 ¶ 53.) At one point the conversation turned to Zich's eye condition and an impending surgery, and Zich told Dr. Riggle that he did not feel his supervisors showed much compassion. (Id. at 36-37; PI. 56.1 ¶ 231.) At the end of the meeting, Dr. Riggle told Zich that he could come back and talk again, and that Dr. Riggle would be available to review any additional details or written statement that Zich wanted to submit. (Id. at 36-37.)

  Zich never had another meeting with Dr. Riggle and never provided further details about his complaints. (Def. 56.1 ¶ 58.) Dr. Riggle himself did follow up by telling Babington that Zich was unhappy about his position and lack of training, and about the way Quinn was treating him. (Riggle Page 9 Dep., at 40-41; PI. 56.1 ¶ 233; Del 56.1 Resp. ¶ 233.) Babington had no specific response, other than to describe the September 14, 2001 meeting and to explain that the new schedule was necessary to cover evening hours due to increased use of the school's facilities. (Id. at 41-44; PI. 56.1 ¶ 234.) Dr. Riggle mentioned Zich's upcoming eye surgery and told Babington to work with Helander-Heiser "to make sure that we were doing for the employee [Zich] what we should be doing." (Id. at 54-55.)

  Dr. Riggle also spoke with Quinn about Zich's complaints. (Pl. 56.1 ¶ 150.) Dr. Riggle told Quinn that Zich was very upset about the way things were going at the school and about what he perceived to be unfair actions towards him. (Id. ¶ 151; Quinn Dep., at 58.) According to Quinn, Dr. Riggle said that Zich was concerned that "the morale of the Department was low — was being affected, and some things were being unfair, but there was no specifics brought out." (Quinn Dep., at 133-34.) Quinn did not agree that Zich was being treated improperly, and claims that Dr. Riggle never told him that Zich had specific complaints about Quinn. (Id. at 58-60; PI. 56.1 ¶¶ 152, 153,) Dr. Riggle did not advise Helander-Heiser of the concerns Zich had raised on October 25, 2001. He did, however, tell her about Zich's imminent eye surgery so that she could monitor Zich's attendance and arrange to hire a temporary worker if necessary. (PI. 56.1 ¶ 237.)

 D. Zich's Interactions with the Maintenance Staff

  As noted, Quinn claims that his loss of confidence in Zich's supervisory skills factored into the decision to remove Zich from the lead position.*fn10 In response, Zich points to his April 2000 and April 2001 performance reviews, which indicated that he was meeting expectations in his ability to work with others. Only Zich's April 1999 review indicated that he needed to improve in that area and "watch his temper with co-workers." (Def. 56.1 ¶¶ 15-17; PX J, K, L; PI. 56.1 ¶¶ 162, 163.) Page 10 Zich's co-workers paint a slightly different picture. Like Quinn, who stated that Zich was argumentative, loud, moody, and confrontational, Zich's co-workers consistently described Zich as moody and stated that he was difficult to work with. (Quinn Dep., at 84-85, 135-38; Folkes Dep., at 26-35, 74-77, 85-87; Klopp Dep., at 18-20; DeMaio Dep., at 11-12; Collazo Dep., at 9-10, 14-15, 23-28.) Alien Folkes testified that Zich was "intimidating" and a "bad boss" (Folkes Dep., at 34-35), and Robert DeMaio testified that he felt Zich treated him in an unprofessional manner and did not "act[] like a lead person should act." (DeMaio Dep., at 30-39.) Egrain Collazo stated that Zich was often in a bad mood and always took it out on Collazo, yelling at him about once a week. (Collazo Dep., at 14, 27.)

  On the other hand, Mark Klopp thought Zich was a good supervisor, and DeMaio testified to developing a camaraderie with Zich after Zich learned that DeMaio had studied karate (PI. 56.1 ¶¶ 255, 256; Def. 56.1 Resp. ¶ 256.) In addition, Folkes described Zich as a "nice guy" as long as he "wasn't your boss," and Collazo said he ...

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