United States District Court, N.D. Illinois
March 26, 2004.
NICK EPISCOPO, Plaintiff,
GENERAL MOTORS CORPORATION, Defendant
The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Nick Episcopo ("Episcopo") has sued General Motors Corporation ("GM")
for alleged violations of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
("ADA") and 42 U.S.C. § 1981, alleging hosfile work environment,
disparate treatment, retaliation and failure to accommodate a disability.
GM has filed a Federal Rule of Civil Procedure ("Rule") 56(c) motion for
summary judgment on these claims. For the reasons set forth below, the
motion is granted.
Unless otherwise noted, the following facts are either undisputed or
deemed admitted because Episcopo failed to comply with Local
Rule 56.1 ("LR 56.1"), a local rule which this Court enforces.*fn1
See Smith v. City of Chicago, 2002 WL 1770532 (N.D. Ill. Aug.
1, 2002). Episcopo is a Caucasian male of Italian descent. (Def.'s LR
56.1(a) ¶ 1.) He was employed at GM's Electro-Motive Division
("EMD") facility in McCook, Illinois from January 8, 1969 until he
retired on January 1, 2003. (Id. ¶¶ 1, 13.) Gerry Hanley was
Episcopo's supervisor from March 2000 until May 2001. (Id.
¶ 7(2nd).)*fn2 Greg Monczynski was an hourly worker at the EMD
facility and, until Episcopo's retirement, Episcopo's coworker,
(Id. ¶ 46.)
In September 1997, Episcopo fractured his left wrist at work.
(Id. ¶ 5.) He had surgery on his left rotator cuff in April
1999 and surgery on his right rotator cuff in January 2000.
(Id.) Episcopo attributes both surgeries to the 1997 accident.
(Id.) When he returned to work after surgery, Episcopo believed
his right shoulder had not healed. (Pl.'s LR 56.1(b)(3)(B) ¶ 3.)
Episcopo believes he is disabled because of his shoulder. (Def.'s LR
56.1(a) ¶ 6.) He believes he cannot lift more than ten pounds and
cannot lift objects above chest level. (Id.) He also believes
that he could perform seventy percent of his job duties at GM with a
ten-pound lifting restriction. (Id. ¶ 7.) Episcopo is able
to do yard work at his home, including cutting the grass and tree
branches. (Id. ¶ 8.) He is also able to bathe and dress
himself and does not have any in-home health care. (Id. ¶
9.) Episcopo walks and stretches for exercise. (Id. ¶ 10.)
He can no longer do painting, carpentry, building, plumbing and other
"heavy work" at his home because of his shoulder unless he takes pain
pills, in which case he is able to perform these tasks. (Id.
¶ 11.) Episcopo can drive his 2002 Chevy truck and his wife's
Buick LeSabre, but sometimes has difficulty if he keeps his arm
on the steering wheel
too long.*fn3 (Id. ¶ 12.) He went on medical leave in
September 2002 and retired on January 1, 2003. (Id. ¶ 13.)
GM has a program called Accommodating Disabled Persons in Transition
("ADAPT"). The program is used to place employees with medical
restrictions in positions which accommodate the restrictions.
(Id. ¶ 11(2nd).) Under the ADAPT program, GM's medical
department evaluates the employee to determine the appropriate
restriction, which is documented in a Medical Notice of Restriction
("Notice of Restriction"). (Id. ¶ 12 (2nd).) The employee
presents the Notice of Restriction to his supervisor, who determines
whether there is an appropriate position for the employee within the
employee's regularly assigned department. (Id. ¶ 13.) If the
supervisor cannot place the employee, the ADAPT committee determines if
additional accommodations would enable the employee to perform his
assigned job, or whether another job at GM is available. (Id.
¶ 14.) If the ADAPT committee cannot place an employee, then the
employee is sent home until his or her medical condition improves.
(Id. ¶ 15.) GM asserts that the medical department's finding
with respect to a medical restriction is binding on the employee's
supervisor; Episcopo denies that allegation, asserting instead that the
medical department's findings are adhered to as a matter of custom and
practice. (Id. ¶ 18; Pl.'s LR 56.1(b)(3)(A) ¶ 18
Response; Hanley Dep. at 49.)
If an employee disagrees with the medical department's restriction, the
collective bargaining agreement provides that an employee can request an
independent medical examination ("IME"). (Def.'s LR 56.1(a) ¶ 16.)
Under paragraph 43(b) of the agreement ("Paragraph 43(b)"), GM and the
union mutually select an outside physician to examine the employee.
The outside physician's findings are binding on the parties.
(Id. ¶ 17; Def.'s Ex. 5 at 34.)
On March 13, 2000, after returning to work from surgery on his right
rotator cuff, Episcopo was issued a Notice of Restriction by Georgia
Hood, a nurse in the medical department. (Def.'s LR 56.1(a) ¶ 19.)
Under this Notice of Restriction, valid through March 31, 2000, Episcopo
was to lift no more than ten pounds with his right hand or engage in
overhead lifting. (Id.) Hanley could not find enough work for
Episcopo in his department that fell under the ten-pound restriction.
Episcopo returned to the medical department and saw Doctor Lacey, GM's
plant physician. (Id. ¶ 20) Doctor Lacey issued a new Notice
of Restriction, valid through March 31, 2000, that included a
thirty-pound restriction and provided that Episcopo was to minimize
repetitive use of, and not engage in overhead use of, his right arm.
(Id.) Doctor Lacey determined that the thirty-pound restriction
was appropriate because, based on clinical impressions, if Episcopo could
lift ten pounds with his right hand, then he could lift thirty pounds
using both hands. (Id. ¶ 21.) Hanley placed Episcopo in a
regular job with this restriction. (Id. ¶ 22.)
On April 4, 2000, a nurse in the GM medical department issued another
Notice of Restriction, valid through April 25, 2000, and providing that
Episcopo was not to lift more than ten pounds or engage in overhead
lifting of his right arm. (Id. ¶ 23.) GM says Hanley was not
able to find a position for Episcopo given these restrictions; Episcopo
denies that no positions were available. (Episcopo Dep. at 73-76.)
On January 8, 2001, Episcopo filed a grievance alleging that GM's
management and its medical department were refusing to "consider the
recommended medical restrictions issued by [my] doctors." (Def.'s LR
56.1(a) ¶ 24; Def.'s Ex. 9.) GM investigated Episcopo's grievance.
and Doctor Lacey explained that Episcopo had no medical condition
that prevented him from performing his job and that he could use a crane
or ask other employees for assistance if he felt a job was too heavy for
him. (Def.'s LR 56.1(a) ¶ 25.) GM asserts that Episcopo never
requested an IME under Paragraph 43(b), but the grievance documentation
indicates that the union requested an IME be sought, if necessary.
(Id. ¶ 26; Def.'s Ex. 9.) Episcopo ultimately withdrew his
grievance; he never filed another grievance regarding medical
restrictions. (Def.'s LR 56.1(a) ¶ 27.)
The ADAPT committee, comprised of Doctor Lacey; Bob Hill, an hourly
tool and die skilled tradesman; Jim Buskus, the union health and safety
representative; and "someone from hourly personnel," met between ten and
twenty times on Episcopo's case and examined Episcopo's work area.
(Id, ¶ 28; Lacey Dep. at 26.) GM installed a special crane
in Episcopo's work area to help him lift parts, although Episcopo asserts
the crane was installed as a result of several complaints from other
employees. (Def.'s LR 56.1(a) ¶ 29.)
Episcopo claims that Hanley and Doctor Lacey failed to accommodate his
disability. (Id. ¶ 8(2nd).) According to Episcopo, Doctor
Lacey failed to honor the work restrictions recommended by his family
physicians, Doctors Vincenzo Bartolomeo and Guido Marra, and did so
because of Hanley. (Id. ¶ 9(2nd).) Episcopo wanted a
permanent ten-pound lifting restriction and a restriction on work done
"over the chest." (Id.) Episcopo believes Hanley failed to
accommodate his disability by assigning him work tasks that exceeded his
weight restriction dozens of times. (Id. ¶ 10(2nd); Pl.'s LR
56.1(b)(3)(A) ¶ 22 Response.)
Episcopo claims that on one occasion, Hanley assigned him to lift an
object estimated to weigh over eighty pounds. Episcopo refused to perform
the job; Hanley did not discipline Episcopo. (Def.'s LR 56.1(a) ¶
36.) On December 11, 2000, while there were no medical restrictions in
Hanley asked Episcopo to operate the jig bore and the gray planer
machines, two of the three machines (the third being a jig mill) in his
department Episcopo believed he could not operate. (Id. ¶¶
33, 34.) Episcopo told Hanley that he did not feel comfortable operating
those machines, and Hanley agreed not to have Episcopo operate them.
(Id. ¶ 34.) Episcopo claims that on December 28, 2000, when
no medical restrictions were in place, Hanley gave Bill Rual, a coworker,
a small part to work on and assigned Episcopo a larger part. Hanley
allowed Rual to help Episcopo with his assignment. (Id. ¶
Episcopo remembers four other occasions where Hanley assigned him work
that involved some heavy lifting. Once, he was assigned to perform a job
on a 150 pound "shaper." He performed part of the job and asked other
people to help him pick up and rotate the part. (Id. ¶ 38.)
Another time, he was assigned a task that required him to lift fifty to
sixty pounds above his chest. (Id. ¶ 39.) Still another
time, Episcopo was given "heavy work" while Hanley allowed another
worker, Bill Klein, to be idle because Klein was waiting on a part.
(Id. ¶ 40.) Finally, Episcopo was assigned to work on a
piece of bronze that Episcopo believed exceeded his work
restrictions.*fn4 (Id. ¶ 41.) Hanley told other workers to
help Episcopo if he needed help with a heavy job. (Id. ¶
30.) If Episcopo felt he could not physically perform a task, he would
either refuse to do it or have a coworker help him. (Id. ¶
31.) Under the collective bargaining agreement, Hanley could have
disciplined Episcopo for his refusal to perform certain tasks, but Hanley
never disciplined Episcopo for this reason. (Id. ¶ 32.)
Episcopo believes GM's personnel department has discriminated against
him during his employment on the basis of his national origin, but he
cannot identify any individual specifically in the personnel department
who has discriminated against him. (Id. ¶ 44.) He was denied
certain promotions during the 1970s and believes it was the result of
discrimination. (Id. ¶ 82.) Episcopo believes Hanley,
Monczynski and Al Sucha (an hourly coworker) created a hosfile work
environment because of his national origin. (Id. ¶ 46.)
Episcopo believes Sucha is responsible for the hosfile work environment
because, from the late 1980s until the mid-1990s, Sucha would say "Burger
King, Home of the Wop" in Episcopo's presence. (Id. ¶ 47.)
Episcopo also claims that, during the 1980s, Sucha would make jokes about
immigrants. (Id. ¶ 48.) Episcopo claims that in 1997 or
1998, Sucha said "All dagos on one side, and the Polish on the other
side." This was the last time Sucha ever made a racial comment in
Episcopo's presence. (Id. ¶ 49.)
In May 1995, after the Oklahoma City bombing, Hanley and three or four
of Episcopo's coworkers were standing in a group. One of the individuals
used the term "fucking displaced persons." (Id. ¶ 50.) GM
claims that Hanley never heard anyone use the term "displaced persons,"
but his deposition testimony indicates that although he himself has used
that term to refer to immigrants, he does not recall anyone at EMD using
the term. (Hanley Dep. at 32-35.) After this incident, Episcopo believes
Hanley was "out to get him." (Def.'s LR 56.1(a) ¶ 52.)
Episcopo believes that Hanley made the following false complaints to
Paul Penkala, Episcopo's supervisor in 1998 or 1999: Episcopo swept
garbage in the aisle; Episcopo would stay in the washroom too long;
Episcopo had a coffee pot at his work station; Episcopo would place his
toolbox or coat in places that would bother Hanley; and Episcopo ate
lunch in Hanley's work area. (Id. ¶ 53.) Hanley asserts,
however, that he made only one comment about Episcopo: Hanley asked
his supervisor at the time, Willie Carter, to have Penkala ask
Episcopo not to eat his lunch in Hanley's department. (Id. ¶
54.) Episcopo was never disciplined by Penkala because of Hanley's
complaints. (Id. ¶ 55,) In fact, Episcopo was not
disciplined during the last twenty-three years of his employment at GM.
Episcopo claims that, in 2001, Penkala told him that Hanley wanted
Episcopo to retire. (Id. ¶ 56.) He also claims that, in
early 2001, Hanley told Episcopo that he (Hanley) did not know Episcopo's
nationality "a pizza maker or a pizza deliverer." (Id.
¶ 57.) George Smith, Episcopo's coworker, saw Episcopo and Hanley
scream at each other during arguments. (Id. ¶ 58.) Hanley
recalls raising his voice to Episcopo on June 13, 2000, when Episcopo
made another employee stop work on a machine so Episcopo could finish a
job. (Id. ¶ 59.) Hanley was upset because Episcopo could
have used other available machines to complete his task; Episcopo denies
the availability of other machines. (Id.) Episcopo believes
Hanley had harsh words for immigrants and African-Americans, but not for
"white Americans."*fn5 (Id. ¶ 60.)
Episcopo believes Hanley was "out to get him" because Hanley would not
stop Monczynski's behavior toward Episcopo. (Id. ¶ 62.)
Episcopo and Monczynski argued with each other frequently. (Id.
¶ 63.) They complained about each other to their union
representative, Rick Robertson, on a regular basis in a manner described
by Robertson as childish. (Id. ¶ 64.) Monczynski had
arguments with all of the workers in the toolroom, including Hanley;
Episcopo also argued with workers in the toolroom. (Id. ¶
65.) Episcopo believes that, sometime after 1995, perhaps in 2000,
tried to hit him with his car.*fn6 (Id. ¶ 66.)
Episcopo believes Tony Citro, a coworker, witnessed the incident but
Citro denies having witnessed any such incident. (Id. ¶ 67.)
Episcopo thinks that he was subject of discrimination because GM did not
terminate Monczynski as a result of this incident where other employees
who committed less serious misdeeds were threatened with termination.
(Id. ¶¶ 68, 69.) Episcopo says Monczynski called him "wop"
and "dago" between thirty and fifty times between 1995 and May 2001.
(Id. ¶ 70.) Hanley never heard Monczynski call Episcopo
these names. (Id. ¶ 71.) Episcopo has used the terms "wop"
and "dago" himself. He has also used the term "Polak" and has told "Polak
jokes" at work. (Id. ¶ 72.) Episcopo claims that on one
occasion Monczynski asked him if Columbus Day was an Italian holiday.
(Id. ¶ 73.)
On one occasion, after having returned from the bathroom, Episcopo
found sunflower seeds in his work area. (Id. ¶ 74.) Episcopo
believes Monczynski put the seeds there. Episcopo also thinks that
Monczynski, while staring at Episcopo, would raise his eyeglasses with
his middle finger and lay out his work glove with the middle finger
sticking out towards Episcopo, making an obscene gesture. (Id.
¶ 75.) Episcopo claims that Monczynski had a swastika sign on a box
of paper towels Monczynski kept with his tool box. Smith told Monczynski
to remove the swastika and Monczynski did. (Id. ¶ 76.)
Hanley never saw the swastika, nor did several of Episcopo's coworkers.
(Id. ¶ 77.) On one occasion, Episcopo and Monczynski almost
got into a physical altercation. (Id. ¶ 78.) They were
yelling at each other, and Smith told them to stop because they could
lose their jobs. (Id.) Another time, Episcopo left his stool in
what Monczynski thought was the work aisle and, according to Episcopo,
Monczynski kicked the chair out of the way; GM believes Monczynski moved
in order to get by. (Id. ¶ 79.) Robert Miller (the
general foreman), Hanley, Robertson and Monczynski had a meeting to
discuss the problems Monczynski and Episcopo were having with one
another. Both men were told to stop aggravating one another and "act like
adults." (Id. ¶ 80; Hanley Dep. at 29.) Episcope's problems
with Monczynski stopped after Hanley retired. (Def. 's LR 56.1
(a) ¶ 81.)
GM has policies in place that detail expected behavior from employees,
including specific provisions prohibiting discrimination and harassment.
The discrimination policies contain a complaint and reporting provision.
(Id. ¶ 83.) The collective bargaining agreement between GM
and Episcopo's union reiterates GM's policies against discrimination and
allows union employees to make complaints of discrimination by filing a
grievance. (Id. ¶ 84.) Episcopo was aware of GM's policies
and understood that if he believed he had been discriminated against or
harassed, the reporting procedure required him to file a grievance
through his union representative. (Id. ¶ 85.) Episcopo filed
a grievance in 1977 alleging national origin discrimination.
(Id. ¶ 86.) After 1977, Episcopo complained to his union
representative that he felt he had been discriminated against, but he
never filed a grievance alleging discrimination.*fn7 (Id.)
Episcopo told Rex Blackwell, plant manager, that he needed to talk to him
about some problems. Episcopo did not tell Blackwell the nature of the
problems. (Id. ¶ 87.) Episcopo told Superintendent Ron
Sidebottom, Miller and Penkala that he had a problem with Hanley.
(Id. ¶ 88.) Episcopo did not share the nature of the problem
with these people. (Id.)
Episcopo filed a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC") on November 2, 2000.
(Id. ¶ 89; Def's Ex. 17.) Episcopo believes Hanley
retaliated against him because of the EEOC charge by giving him dirty
looks, screaming at him in an attempt to start an argument and harassing
him. (Def.'s LR 56.1(a) ¶ 90.) Episcopo identified three instances
where Hartley allegedly attempted to start an argument with him.*fn8
(Id. ¶ 91.) On one occasion, Episcopo claims Hanley screamed
at him because he was not working. He explained to Hanley that he was not
working because the machines were being used by others. (Id.)
Episcopo claims that on Hanley's last day of work in May 2001, Hanley
threatened to call the union after Episcopo refused to perform a job
Episcopo believed was too heavy for him. (Id. ¶ 92.)
Episcopo had no medical restrictions in place at that time.
(Id.) Episcopo claims that on December 11, 2000, Hanley tried to
start an argument with him by asking him to train on the jig bore and
gray planer machines. (Id. ¶ 93.) Episcopo believed he was
not able to operate those machines with his medical restrictions.
(Id.) In fact, no GM-issued medical restrictions were in place
on that date. (Id. ¶ 94.) When Episcopo told Hanley he did
not feel comfortable operating those machines, Hanley agreed that
Episcopo did not have to operate them. (Id.) Episcopo claims
Hanley would check on him when he went to the restroom and would
sometimes follow Episcopo there. (Id. ¶ 95.) Episcopo
believes that supervisors have the right to check whether their employees
are working. (Id. ¶ 96.)
The Legal Standard
To prevail on a summary judgment motion, "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, [must] 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). At this stage, we do not weigh
evidence or determine the truth of the matters asserted. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence
and draw all inferences in favor of the non-moving party. Michas v.
Health Cost Controls of Illinois, Inc., 209 F.3d 687, 692 (7th Cir.
2000). Summary judgment is appropriate only when the record as a whole
establishes that no reasonable jury could find for the non-moving party.
Episcopo has filed a motion to strike a document never produced during
discovery. We address this motion before we rule on the merits of GM's
motion for summary judgment. With its reply memorandum in support of the
summary judgment motion, GM submitted a copy of a grievance jacket cover
sheet*fn9 ("Exhibit A"). The "date filed" section of the cover sheet
indicates that it was created on January 8, 2001. The cover sheet also
contains an annotation, with the date "10-29-03" next to it, which
states: "Although it was management's intent to send the employee to an
IMO [independent medical examination], the employee retired effective
1-1-03." GM asserts that Exhibit A supports its position that Episcopo
withdrew his January 8, 2001 grievance (pertaining to
GM's failure to honor his medical restrictions) and never requested
an independent medical exam. (Def.'s Response to Pl.'s LR 56.1(b)(3)(A)
Episcopo claims that Exhibit A was not produced during discovery and
that we should strike it from the record. GM does not dispute that the
document was not produced during discovery, offering as an explanation
that production at that time was impossible because the document was
created after discovery closed on September 2, 2003. GM's position is
hard to understand. It claims that it "produced all documents regarding
plaintiff's January 8, 2001 grievance" and refers to documents with
bates stamp numbers GM 102-130. (Opp'n to Mot. to Strike at 1.) However,
in comparing Exhibit A with another grievance jacket cover sheet produced
during discovery, see Ex. 21 to Robertson Dep. at 37-38, it
seems clear that this particular cover sheet was created on January 8,
2001. Moreover, GM's assertion that the annotations on Exhibit A reflect
"only the fact that lead counsel for GM faxed this document to local
counsel for GM on the date that GM filed its reply brief. . . ." is
hard to appreciate. The date of the annotation is October 29, 2003. The
Court's electronic docket indicates that GM filed its reply brief in
support of its motion for summary judgment on December 22, 2003. We do
not see any reference to December 22, 2003, on Exhibit A. October 29 is,
according to the docket, the date GM filed its motion for summary
GM also argues that there is no duty under Rule 26 to supplement
disclosures or discovery responses after discovery has closed. We
disagree. Although Rule 26 does not explicitly provide for
supplementation of disclosures and responses after the close of
discovery, we think the language of Rule 26(e)(2) is broad enough to
require supplemental disclosures under certain circumstances, regardless
of whether discovery has closed, and is consistent with the spirit behind
the discovery rules, which is to promote a liberal discovery process "in
an effort to narrow the issues for trial and
to prevent unfair surprise." Scranton Gillette Communications,
Inc. v. Dannhausen, 1998 WL 566668, at *1 (N.D. Ill. Aug. 26, 1998).
See also Fed.R.Civ.P. 26 Advisory Committee Notes, 1993
Amendments, Subdivision (e).
We find that, because GM failed to produce Exhibit A during the
discovery process, we will not consider it in deciding GM's motion for
summary judgment.*fn10 Episcopo's motion to strike Exhibit A is granted.
1. Claim Under 42 U.S.C. § 1981
GM seeks to dismiss Episcopo's claims under section 1981 on the basis
that section 1981 does not address national origin discrimination. GM is
correct. See Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348,
352 (7th Cir. 1987) (citing Anooya v. Hilton Hotels Corp.,
733 F.2d 48, 50 (7th Cir. 1984)). A claim of discrimination on the basis of
national origin may proceed under section 1981 if it is clear that the
discrimination allegedly occurred because of plaintiff's membership in a
group "distinct from white citizens as a matter of race or color."
Id. (quoting Doe v. St. Joseph's Hosp., 788 F.2d 411,
418 (7th Cir. 1986)). That rule does not apply in this case. Episcopo is
Caucasian. In his complaint, Episcopo alleges discrimination by GM
because "he was born in Italy" and distinguishes the treatment he
received from the treatment received by "American-born persons." (Compl.
¶¶ 46-48.) He does not assert or suggest that the discrimination
resulted from his being a member of a different race or color. Episcopo's
reliance on Von Zuckerstein v. Argonne Nat'l Lab., 760 F. Supp. 1310
(N.D. Ill. 1991) is misplaced. In that case, the court
recognized a cognizable claim under section 1981 because it found
that the plaintiffs had alleged discrimination on the basis of their
race, color and ethnicity and not solely on their national origin.
Id. at 1313. We grant GM's motion for summary judgment with
respect to claims made under 42 U.S.C. § 1981.*fn11
2. Claim Under the ADA for Failure to Accommodate a Disability
In order to survive a motion for summary judgment on a failure to
accommodate claim under the ADA, Episcopo must show that: (1) he was (or
is) disabled as defined by the ADA; (2) GM was aware of his disability;
and (3) he was (or is) a qualified individual who, with or without
reasonable accommodation, can perform the essential functions of the
position he held with GM. Feldman v. American Mem'l Life Ins.
Co., 196 F.3d 783, 789 (7th Cir. 1999).
Episcopo suggests that because he is not claiming disability
discrimination, whether he is disabled is irrelevant. (Response at 15.)
We assume he means that because he is not making a disparate treatment
claim, the McDonnell Douglas*fn12 burden-shifting analysis is
inapplicable. But Episcopo is claiming failure to accommodate under the
ADA, a form of disability discrimination, and to be successful in this
claim, Episcopo must establish that he was a qualified individual with a
disability. Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019,
1021-22 (7th Cir. 1997). To defeat GM's motion for summary judgment,
Episcopo must present evidence which would allow a reasonable jury to
find that he falls within the ADA's definition of disability. This he
A person is disabled within the meaning of the ADA if he has: (1) "a
physical or mental impairment that substantially limits one or more of
the [individual's] major life activities"; (2) "a record of such an
impairment"; or (3) is "regarded as having such an impairment."
42 U.S.C. § 12102(2) (1995); see also 29 C.F.R. § 1630.2(g). The
definition of a "physical or mental impairment" includes "[a]ny
physiological disorder, or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genito-urinary, hemic and lymphatic, skin, and endocrine."
29 C.F.R. § 1630.2(h)(1).
A plaintiff's disability must also substantially affect a major life
activity. Major life activities include: "caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working." 29 C.F.R. § 1630.2(i). A temporary disability is not
covered by the ADA. See Matthews v. Commonwealth Edison Co.,
128 F.3d 1194, 1197 (7th Cir. 1997) ("the temporarily disabled are not
protected by the [ADA]"). "The impairment's impact must also be permanent
or long term." Toyota Motor Mfg., Kentucky, Inc. v. Williams,
534 U.S. 184, 198 (2002).
Episcopo does not specifically identify a major life activity he cannot
perform, but the focus of his response brief suggests that he is arguing
he is substantially limited in his ability to work.
In the words of the Supreme Court:
To be substantially limited in the major life
activity of working. . . . one must be
precluded from more than one type of job, a
specialized job, or a particular job of choice. If
jobs utilizing an individual's skills (but perhaps
not his or her unique talents) are available, one
is not precluded from a substantial class of jobs.
Similarly, if a host of different types of jobs
are available, one is not precluded from a broad
range of jobs.
Sutton v. United Airlines, Inc., 527 U.S. 471, 492 (1999).
Episcopo has offered no evidence that he is precluded from working in a
class of jobs or a broad range of jobs in various classes, Weiler v.
Household Fin. Corp., 101 F.3d 519, 525 (7th Cir. 1996), and in fact
does not even make that argument. He asserts only that he could not work
on the largest machines at GM which require overhead lifting, which is
about thirty of the jobs. (Response at 15.)
An impairment is considered a "disability" when it constitutes a
significant barrier to employment and substantially limits employment
generally. Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir.
1992) (discussing physical impairment under Rehabilitation Act). An
impairment does not become a "disability" under the ADA simply because it
affects one's ability to perform a particular job for a particular
employer. Duffin v. Federal Express Corp., 1997 WL 208428, at *3
(N.D. Ill, Apr. 22, 1997) (discussing lifting restrictions and citing
cases where plaintiffs with lifting restrictions were not afforded
protection under the ADA). Episcopo must show that a genuine issue of
material fact exists that his impairment limits employment generally,
which he has not done. In fact, Episcopo has not even shown that his
impairment impacted his ability to perform his job at GM. Cf. White
v. Boehringer Mannheim Corp., 28 F. Supp.2d 527, 537 (S.D. Ind.
1998) (discussing relevance of plaintiff's ability to perform his current
job satisfactorily and ability to perform other employment). He was not
required to work on the machines that required heavy lifting overhead,
and when he did so, he was able to get help from coworkers. He was not
disciplined or reprimanded and has presented no evidence that he suffered
in the terms of his employment (for example, pay raises or desirable
shifts) as a result of his inability to perform certain tasks.
Because Episcopo has not satisfied an essential element of
establishing a case under the ADA, we need not explore the remaining
facets of his failure to accommodate claim. See Amadio v. Ford Motor
Co., 238 F.3d 919, 924 (7th Cir. 2001) (a claim under the ADA fails
if a plaintiff fails to prove any of the elements of a prima
facie case). GM's motion for summary judgment on this claim is
3. Claims Under Title VII
Title VII prohibits employment discrimination on the basis of race,
color, religion, sex and national origin. 42 U.S.C.A. § 2000e-2
(2003). In Illinois, an individual must initiate a national origin
discrimination claim by filing an EEOC charge within 300 days of the
alleged discrimination. See Hall v. Bodine Elec. Co., 276 F.3d 345,
352 (7th Cir. 2002), Episcopo filed his charge on November 2, 2000,
so under the general rule, conduct that occurred before January 2000 is
A. Claim For Hosfile Work Environment Based on National
"In order to survive summary judgment on a hosfile work environment
claim, a plaintiff must present evidence that would establish that the
allegedly hosfile conduct was so severe or pervasive as to create an
abusive working environment in violation of Title VII." Russell v.
Board of Trustees,
243 F.3d 336, 342-43 (7th Cir. 2001). Our analysis has both an
objective and a subjective element conduct covered by Title VII
is conduct that "a reasonable person would find . . . hosfile and
which the victim [himself] . . . sees as abusive." Filipovic v. K
& R Express Sys., Inc., 176 F.3d 390, 398 (7th Cir. 1999)
(quoting Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467
(7th Cir. 1998)). In determining whether conduct is actionable, we look
at all the circumstances, including "the frequency of the discriminatory
conduct; its severity; whether it was physically threatening or
humiliating; or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Adusumilli v. City
of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (internal quotation
marks and citation omitted). We must first conclude that Episcopo has
stated a valid claim before we consider whether GM may be liable as an
employer. See Mason v. Southern III. Univ. at Carbondale,
233 F.3d 1036, 1043 (7th Cir. 2000) (employer "essentially strictly liable"
if supervisor created the hosfile work environment, but liable for
coworker's actions only if employer negligent in either discovering or
Reading the record in the light most favorable to Episcopo, the conduct
he complains of fails to meet the standard stated above. Because many of
the events Episcopo refers to in his response brief occurred prior to
January 2000, such as Sucha's comments, the "displaced persons" comment,
Episcopo's failure to be promoted in the 1970s and Hanley's complaints to
Penkala, we do not consider them in our discussion. The events that
occurred after January 2000 were not frequent or severe enough to
constitute a hosfile work environment. See Russell, 243 F.3d at
343-44 (discussing comments and conduct of male supervisor toward female
subordinate that, though boorish and offensive, did not constitute
actionable conduct). See also Baskerville v. Culligan Int'l Co.,
50 F.3d 428, 430 (7th Cir. 1995) (numerous "vulgar" incidents that took
place over seven months were not sexual harassment).
As for Hanley's conduct, he made one comment that goes to Episcopo's
national origin (the "pizza maker" comment) and although entirely
inappropriate, it was isolated. The one instance, on June 13, 2000, where
Hanley specifically yelled at Episcopo does not constitute frequent
behavior and the general fact that Hanley and Episcopo yelled at each
other does not support an inference that Episcopo was subject to a
hosfile work environment because of his national origin. See Patton
v. Indianapolis Public Sch. Bd., 276 F.3d 334, 339 (7th Cir. 2002)
(rude, arrogant and boorish behavior at work does not create Title VII
claim as long as hostility not based on protected characteristic).
Similarly, Hanley's comment to Penkala that he wanted Episcopo to retire
is insignificant. See Brown v. Ameritech Corp., 128 F.3d 605,
608 (7th Cir. 1997).
Episcopo has tried to create an issue of material fact with respect to
his coworker Monczynski's behavior. First, Episcopo attempts to impute
Monczynski's behavior to Hanley, arguing that the former was the latter's
agent on the toolroom floor. But Episcopo has presented no evidence to
support this theory, and his efforts to do so in his response brief are
unavailing because he is attempting to introduce new facts outside of the
parameters established by LR 56.1. (Response at 7-8, 10.) See also
Murray v. Chicago Transit Authority, 252 F.3d 880, 888 (7th Cir.
2001) (in discussing failure of plaintiff to tie actions of one executive
to plaintiff's supervisor, court stated it "has typically been skeptical
of . . . elaborate plot theories") (internal quotation omitted).
Second, Episcopo has not provided any evidence indicating that GM would
be responsible for Monczynski's behavior. GM would be liable for
Monczynski's conduct only if GM was
"negligent either in discovering or remedying the harassment."
Hall, 276 F.3d at 356. Because "Title VII neither requires nor
expects the management of a company to be aware of every impropriety
committed by every low-level employee. . . . notice or knowledge of
the harassment is a prerequisite for liability." Id. (internal
quotations and citation omitted). Episcopo must present evidence that he
gave GM enough information to make a reasonable employer think there was
some probability that he was being harassed. Id. He has failed
to do this.
Episcopo has not shown that GM knew about Monczynski's conduct. Hanley
denied hearing Monczynski ever call Episcopo "wop" or "dago," and
Episcopo has offered nothing to suggest otherwise except an unsupported
denial. (Pl.'s LR 56.1(b)(3)(A) ¶ 71 Response.) Episcopo does not
claim that he reported these episodes of harassment to Hanley."*fn14 In
addition, the number of times Monczynski used these names (between thirty
and fifty times over approximately six years, four of which are outside
of the limitations period), does not support a finding of a hosfile work
environment. See Baskerville, 50 F.3d at 430-31. Hanley never
saw the swastika on Monczynski's toolbox and he did not know about the
incident with the car. Episcopo told Hanley about the Columbus Day
comment, but Episcopo has not offered any evidence indicating he reported
other incidents to Hanley. See, e.g., North v. Madison Area Ass'n for
Retarded Citizens-Dev. Ctrs. Corp., 844 F.2d 401, 409 (7th Cir.
1988) (isolated incidents do not create hosfile work environment).
Episcopo did not file a grievance regarding Monczynski's behavior and so
it cannot be said that
Episcopo notified GM of the harassment. See Hall, 276 F.3d
at 356 (it would be expected for plaintiff to use the channels
established by employer to report harassment).
Moreover, the numerous examples of unprofessional behavior (the
sunflower seeds, kicking the chair out of the aisle, fixing eyeglasses
using the middle finger), while childish, do not, by themselves, suggest
that Monczynski was motived by animus towards Episcopo's national origin.
See Shifman v. U.S. Robotics Access Corp., 1997 WL 610449,
*12-13 (N.D. Ill. Sept. 24, 1997) (plaintiff must raise inference that
hosfile behavior result of animus toward ethnicity when not apparent from
behavior itself). Monczynski argued with everyone in the toolroom. The
evidence supports a conclusion that Monczynski and Episcopo had a bad
working relationship characterized by petty conflicts but not that
Monczynski engaged in his behavior because of Episcopo's national origin.
Cf. Johnson v. Hondo, Inc., 940 F. Supp. 1403 (E.D. Wise. 1996)
(no evidence that abuse based on gender, stating "personality conflicts
between employees are not the business of the federal courts") (quoting
Vore v. Indiana Bell Telephone Co., 32 F.3d 1161, 1162 (7th Cir.
Even if Hanley's yelling or Monczynski's actions were frequent and
severe and directed at Episcopo because of his national origin, there is
no evidence that Episcopo's well-being or ability to perform his work
suffered as a result of this environment. See Rodgers v.
Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993)
(the objective and subjective standards allow courts to consider
conduct's effect on a reasonable person's ability to perform
work and well-being as well as actual effect on plaintiff
bringing claim) (emphasis in original). Episcopo provides no evidence
that his emotional or psychological stability was affected by his work
environment or that he experienced a decline in job performance as a
result of his work environment, In fact, Episcopo
himself participated in some offensive behavior at work, such as
using the terms "wop" and "dago" and telling "Polak jokes," indicating
that Episcopo was not intimidated by the atmosphere. Episcopo and
Monczynski antagonized each other. (Robertson Dep. at 27-30.) In
addition, Episcopo was able to assert himself with Hanley, yelling back
at him. Episcopo's work environment involved coarse banter and unrefined
behavior among all employees; the evidence does not suggest that Episcopo
perceived it as hosfile. See Hilt-Dyson v. City of Chicago, 282
F.3d 456, 463 (7th Cir. 2002) (discussing that alleged harassment cannot
be viewed in a vacuum and that "Title VII does not prohibit all verbal or
physical harassment in the workplace"). Because we have found that
Episcopo has failed to demonstrate a genuine issue of material fact
regarding a hosfile work environment, our inquiry into GM's liability
GM has also satisfied the requirements of the Ellerth/Faragher
affirmative defense articulated by the Supreme Court.*fn15 An employer
may avoid vicarious liability if it can show: (a) that it exercised
reasonable care to prevent and correct promptly any harassing behavior;
and (b) that the employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer.
Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (internal
quotation marks and citation omitted). GM has a policy in place to
address allegations of harassment, Episcopo knew of these policies and in
fact used them in 1977. However, Episcopo did not file any grievance
relating to Hanley's or Monczynski's actions and did not share the nature
of the problems
with Blackwell, Sidebottom, Miller or Penkala.*fn16 Regardless, GM
took measures to address Monczynski's and Episcopo's behavior towards one
another, even though Episcopo did not formally complain about Monczynski.
Their working relationship eventually improved.
B. Claim For Disparate Treatment Based on National Origin
Episcopo also claims that GM subjected him to disparate treatment based
on his national origin. He has no direct evidence of discriminatory
intent and so must make his case under the burden-shifting analysis
outlined by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792(1973).
The McDonnell Douglas analysis requires that Episcopo first
demonstrate that he has a prima facie case of discriminatory
treatment. He must show that: (1) he is a member of a protected class;
(2) he was meeting his employer's legitimate performance expectations;
(3) he suffered an adverse employment action; and (4) similarly situated
persons not in the protected class were treated more favorably. See
Johnson v. Zema Sys. Corp., 170 F.3d 734, 742-43 (7th Cir. 1999). If
he succeeds, the burden of production shifts to GM to offer a legitimate,
non-discriminatory reason for the adverse action. If GM carries its
burden, the burden then shifts back to plaintiff to show the proffered
reasons for the adverse action are merely pretext. See Van
Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir.
1993). The ultimate burden to prove discrimination always remains with
Episcopo. See Sattar v. Motorola, 138 F.3d 1164, 1169 (7th
Cir. 1998). Episcopo has failed to meet his burden with respect to the
latter two requirements.
There is no evidence that Episcopo suffered any adverse employment
action. "An adverse employment action is a materially adverse change in
the terms and conditions of employment [that is] more disruptive than a
mere inconvenience or an alteration of job responsibilities."
Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997, 1001 (7th
Cir. 2000). Episcopo seems to be arguing that his work environment was so
unbearable that he was constructively discharged.*fn17 (Response at 12.)
This "unbearable work environment" consisted of the failure to honor
medical restrictions, assigning jobs designed to aggravate shoulder
condition, daily antagonism and encouraging or permitting coworkers to
physically assault and verbally taunt him. However, we found above that
Episcopo has not shown that a reasonable trier of fact could find that
his work environment was so hellish or that is was made unbearable by his
supervisor and co-worker because of his national origin.
In Johnson v. Nordstrom, Inc., 260 F.3d 727, 735 (7th Cir.
2001), a case cited by Episcopo in support of his position where a claim
of constructive discharge did not succeed, the actions complained of by
the plaintiff were not so different from the actions that Episcopo says
led to his constructive discharge, In Stockett, another case
cited by Episcopo, the court said that "conditions of employment that are
designed to harass and humiliate employees" are actionable adverse
employment actions. Stockett, 221 F.3d at 1001. But,
contrary to Episcopo's position, he has not shown that he was subjected
to such conditions. See E.E.O.C. v. University of Chicago
Hosps., 216 F.3d 326, 331-32 (7th Cir. 2002) (where employee alleges
he was forced to resign because of discriminatory harassment, employee
must demonstrate environment more egregious than that required to prove
hosfile work environment).
Episcopo also attempts to argue that the adverse employment action is
Hanley's failure to honor his medical restrictions.*fn18 First, GM and
Hanley did accommodate Episcopo's physical limitations, even when no
Notice of Restriction was in effect. When the March and April 2000
Notices of Restriction were in place, GM either used the ADAPT process to
find appropriate work for Episcopo or found that nothing was available.
Episcopo does not tell us how he was disadvantaged by Hanley's inability
to find work appropriate under the April 2000 Notice of Restriction.
Moreover, Episcopo did not pursue the grievance he filed. Second, even
when there was no Notice of Restriction in place, Episcopo was relieved
of any assignment he felt was beyond his limitation or was helped by
others on the floor. He was not disciplined or otherwise punished for
refusing to perform an assigned task. Third, even if Hanley failed to
respect Episcopo's physical limitations, there is no evidence to support
a finding that Hanley did so because of Episcopo's national origin.
Moreover, Episcopo has not shown that similarly situated employees, not
of Italian heritage, were treated differently. A similarly situated
employee is one who is "directly comparable in all
material respects." Peele v. Country Mutual Ins. Co.,
288 F.3d 319, 330 (7th Cir. 2002) (citing Patterson v. Avery Dennison
Corp., 281 F.3d 676, 680 (7th Cir. 2002)). He must be similarly
situated "with respect to performance, qualifications, and conduct."
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000). This usually demands a showing that "the two employees dealt with
the same supervisor, were subject to the same standards, and had engaged
in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the employer's
treatment of them." Id. The cases, however, need not be
identical. See Graham v. Long Island RR., 230 F.3d 34, 40 (2d
In his response brief, Episcopo attempts to identify similarly situated
individuals whose medical restrictions were respected by Hanley.
(Response at 9.) But Episcopo has introduced this evidence outside of the
framework established by LR 56.1. Consequently, we do not consider
whether these individuals are in fact similarly situated.*fn19
Episcopo's assertion that Hanley spoke more harshly to non-white
Americans is too vague to carry any weight, Episcopo has failed to
support a disparate treatment claim.
C. Claim For Retaliation
Title VII prohibits an employer from retaliating against an employee
for engaging in an act protected by that statute.
42 U.S.C. § 2000e-3(a) (2003). A prima facie case of retaliation under Title
VII requires the plaintiff to present sufficient evidence that: (1) he
engaged in statutorily
protected activity; (2) he suffered an adverse employment action;
and (3) there is a causal link between the protected expression and the
adverse action. Adusumilli, 164 F.3d at 362.
Episcopo seems to be arguing that the adverse employment action was the
December 11, 2000 assignment to work on the gray planer after Episcopo
reported harassment to Roy Moroni of the labor relations department.
There are few problems with this argument. First, Episcopo's reporting of
harassment to Moroni has not been introduced via LR 56.1. Episcopo's
attempts to present this information through his response brief are
ineffective. Second, deposition testimony cited previously relating to
Episcopo's reporting of harassment does not indicate that Episcopo ever
talked to Moroni. (Episcopo Dep. at 36-38.) (We did not hunt through the
entire record for evidence of a conversation with Moroni.) Third,
Episcopo asserts that Hanley admitted that he assigned Episcopo to work
on this machine "because [Episcopo] took it upon himself to go to Roy
Moroni of labor relations." (Response at 14.) In making this assertion,
Episcopo mischaracterizes Hanley's deposition testimony. Hanley's
testimony indicates that Episcopo wanted to work on the machine, that
Episcopo expressed this to Moroni and that it was for that reason that
Hanley assigned Episcopo to that machine. Finally, Episcopo has not shown
that working on the gray planer (and, for that matter, working on the jig
mill and jig bore) were more than "a mere inconvenience or an alteration
in job responsibilities." Conley v. Village of Bedford Park,
215 F.3d 703, 712 (7th Cir. 2000). In fact, the assignments appear to be
within the range of Episcopo's normal work activities. Id.
Moreover, when Episcopo asked not to work on those machines on certain
occasions, GM honored his request. Episcopo has not shown that he
suffered any adverse employment action and cannot maintain his Title VII
retaliation claim. See Rhodes v. Illinois Dep't of Transp.,
243 F. Supp.2d 810,
818-819 (N.D. Ill. 2003) (assignment of undesirable duties not
adverse employment action especially when within job description),
aff'd, 2004 WL 350996 (Feb. 26, 2004).
Even if assignments to work on the gray planer, jig bore and jig mill
machines were adverse employment actions, GM has come forward with a
legitimate business reason for making those assignments. See Collins
v. Illinois, 830 F.2d 692, 702 (7th Cir. 1987) (applying
McDonnell-Douglas burden shifting analysis to retaliation
claim). Hanley assigned these tasks to Episcopo because he had no medical
restrictions in place at the time, the tasks were within the range of
normal job duties and Episcopo could rely on other employees for help
when necessary. Episcopo may survive summary judgment only by presenting
sufficient evidence that GM's justification is pretextual, which he has
not done. Id.
For the reasons stated above, Episcopo's motion to strike is granted.
GM's motion for summary judgment on all claims is granted. There is no
genuine issue of material fact on Episcopo's claims against GM under
42 U.S.C. § 1981, Title VII and the ADA. This is a final and appealable