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 ...