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GREEN v. PACE SUBURBAN BUS

July 9, 2004.

ARTHUR L. GREEN, Plaintiff,
v.
PACE SUBURBAN BUS, Defendant.



The opinion of the court was delivered by: MARK FILIP, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Arthur L. Green ("Plaintiff" or "Green") is suing his former employer, Defendant Pace Suburban Bus Service ("Defendant" or "Pace"), alleging Pace discriminated against him because of a disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. This case is before the Court on Defendant's Motion for Summary Judgment (D.E. 51) and Motion to Strike Portions of Plaintiff's Local Rule 56.1(b) Summary Judgment Response Memorandum and Statement of Additional Facts (D.E. 62).*fn1 Defendant's Motion for Summary Judgment is granted and Defendant's Motion to Strike is denied as moot.

BACKGROUND

  Defendant Pace is Green's former employer, providing, among other things, transportation services to the public in suburban Chicago. Pace has multiple operating divisions (Def.'s St. ¶ 2), one of which is the North Shore Division, located in Evanston, Illinois (id. ¶ 3). On February 26, 2001, Pace's North Shore Division hired Green (id ¶ 5) on a probationary basis as a part-time bus operator to drive a bus and shuttle bus, with the probationary period to last for six months (id. ¶ 63-64; D.E. 58 at 3).*fn2 As part of the hiring process, Green took (and passed) a pre-employment physical that is based on criteria established by the United States Department of Transportation ("DOT").*fn3 (Pl.'s St. ¶ 1.)

  Pace terminated Green before the expiration of the probationary period (Def.'s St. ¶ 66), after subsequent medical examinations by Green's personal physicians, prompted by Green having sought emergency medical attention (id. ¶ 6), resulted in Green being diagnosed with health issues that physically disqualified him from driving a bus under DOT regulations and Pace policy (id. ¶¶ 13-18, 51-53). The health issues diagnosed by Green's doctors included congestive heart failure and something called idiopathic dilated cardiomyopathy or "IDC." (Id. ¶¶ 6, 8.) Green thereafter filed a pro se lawsuit, and he has been ably represented thereafter by his court appointed counsel, who appear pro bono.

  As explained, Pace follows the DOT certification regulations as a matter of corporate policy. (Id. ¶ 13.) The DOT has established medical standards to determine whether a person is physically qualified to drive a commercial motor vehicle. (Id. ¶ 14.) Specifically, the DOT regulations state that a person shall not drive a commercial motor vehicle unless he or she is physically qualified to do so and has a medical examiner's approval evidencing that qualification. (Id. ¶ 15.) The DOT regulations define a physically qualified driver as a person who has, among various other things, "no current clinical diagnosis of . . . cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure." (Id. ¶ 16.) All North Shore Pace employees are required to have DOT medical certification to physically qualify to drive a bus. (Id. ¶ 76.) The parties agree that a Pace bus driver's physical qualification under the DOT regulations, as determined by a physician, is an essential function of a bus driver's job. (Id. ¶ 23.) It is also undisputed that Pace has no discretion to allow an employee who has not received DOT medical certification to drive a bus. (Id. ¶ 24.)

  Green's personal physicians diagnosed him with IDC after a series of hospital visits in the spring/summer of 2001. Specifically, on May 31, 2001, Green sought medical care at St. Francis Hospital in Chicago, where Green was diagnosed with pneumonia. (Pl.'s St. ¶ 4.) On June 4, 2001, Green went to the St. Francis emergency room and was diagnosed with acute pneumonia. (Id.) Finally, on June 25, 2001, the staff of Rush University Medical Center hospitalized Green, and Dr. Constantine Katsamakis, an internal medical resident, and Dr. John Barron, the attending cardiologist, treated Green. (Def.'s St. ¶ 6.) At the time, Green suffered from, among other things, lower extremity edema (swelling of the legs), increasing abdominal girth, an enlarged heart, congestive heart failure, and dyspnea (shortness of breath). (Id. ¶ 7.) Drs. Barron and Katsamakis diagnosed Green with IDC (id. ¶ 8), which is a heart condition that primarily affects the left ventricle and causes the heart to become weak and pump inefficiently (id. ¶ 9). The disease carries with it a material risk of sudden death (id. ¶ 12) and/or syncope (sudden passing out and collapsing) (id. ¶ 11). It is unclear from the record whether Green's pneumonia was related to the IDC.

  On June 30, 2001, Rush University Medical Hospital discharged Green (Def.'s St. ¶ 25), and Drs. Katsamakis and Barron thereafter continued to treat him on an out-patient basis (id. ¶¶ 27-28). Dr. Barron did not release Green to return to work upon his discharge. (Id. ¶ 26.) Green met with Dr. Katsamakis on July 6, 2001, and Dr. Katsamakis instructed Green to refrain from working until he was evaluated by Dr. Barron. (Id. ¶ 27.) Dr. Barron examined Green on July 19, 2001, and he determined that Green's congestive heart failure had not resolved. (Id. ¶ 28.) Although Dr. Barron wrote a note at that time stating that Green could return to work on a part-time basis, it is undisputed that Dr. Barron testified that he did not intend to release Green back to work as a bus driver. (Id. ¶ 29.)*fn4 Rather, Dr. Barron, Green's own physician, made clear that he intended to release Green back to work in some other capacity that would require less exertion and would alleviate the dangers associated with his condition. (id. ¶ 30.) Indeed, Dr. Barron testified that he assumed that Green would not return to work as a bus driver. (Id. ¶ 31.) Although Dr. Barron was not familiar with (and did not consult) the DOT regulations at this time (id. ¶ 32), Dr. Barron testified that he would not have certified Green to drive a bus on July 19, 2001, had he been aware of the DOT regulations (id. ¶ 34).

  Michael Cutler ("Cutler") is the Safety Training Manager for Pace's North Shore Division. (Id. ¶ 19.) He is responsible for ensuring that Pace complies with its policies and procedures regarding DOT certifications. (Id. ¶ 20.) Green gave Dr. Barron's note to Cutler on July 19, 2001. (Pl.'s St. ¶ 8.) However, because Green had missed more than five days of work due to his hospitalization (Def.'s St. ¶ 37), Cutler directed him to Dr. Efren Estrella of St. Francis Hospital (id. ¶¶ 38-39), in accordance with Pace policy (id. ¶ 35). Dr. Estrella has performed physical examinations for employers since 1989 and for Pace since 2000. (Id. ¶ 40.) Dr. Estrella is familiar with DOT regulatory criteria for evaluating commercial bus drivers. (Id. ¶ 41.) Cutler was Dr. Estrella's contact person at Pace. (Pl.'s St. ¶ 21.) Cutler in turn reported to Green's supervisor, Christopher Fardoux ("Fardoux"), who is responsible for supervising bus drivers and street operations at Pace North Shore; Fardoux's superior, in turn, was William Heelan ("Heelan"). (Id. ¶¶ 21-22.) Dr. Estrella did not give Green an independent physical examination (id. ¶ 9); instead, he considered a medical certification form signed by one of Mr. Green's personal physicians, Dr. Katsamakis (id. ¶ 53).*fn5

  In this regard, Green saw Dr. Katsamakis on July 27, 2001. Dr. Katsamakis signed a DOT medical certification form stating: (1) that Green was presently under his care for IDC;(2) that he read and was aware of the Regulatory Criteria for Evaluation of drivers under 49 C.F.R. § 391.41; (3) that Green's present medical condition may interfere with Green's ability to drive a bus safely; and (4) that Green needed further treatment before a DOT medical certificate could be issued. (Id. ¶ 46.) Dr. Katsamakis also conferred with Dr. Barron, who agreed with Dr. Katsamakis's assessment that Green's conditions may interfere with his ability to drive a bus safely, although the parties disagree over when Drs. Katsamakis and Barron communicated. (Id. ¶ 50.) In sum, neither Dr. Katsamakis nor Dr. Barron released Green to return to work as a bus driver (id. ¶ 51), and they agreed that Green should have been removed from service under the DOT criteria/Pace corporate policy concerning driving a bus (id. ¶ 52). After considering Dr. Katsamakis's evaluation and the DOT regulations, Dr. Estrella determined that Green should immediately be taken out service for six months. (Id. ¶ 53.) Dr. Estrella made this determination due to his concerns with Green's IDC, which is known to cause, among other things, sudden syncope (passing out). (Id. ¶ 54.) On July 30, 2001, Dr. Estrella informed Cutler that Green was removed from service for six months. (Id. ¶ 62; Pl.'s St. ¶ 18.)

  On August 25, 2001 (presumably one day before the expiration of Green's six-month probationary period), Cutler and Fardoux drove to Green's home and left a letter that terminated Green's employment with Pace. (Pl.'s St. ¶ 25.) Two weeks after Pace discharged Green, Green began another full-time job as a janitor. (Def.'s St. ¶ 67.) No restrictions were imposed on Green's janitorial activities. (Id. ¶ 70.) The position required Green to perform physical tasks such as mopping, shampooing, and lifting. (Id. ¶ 71.) Furthermore, Green was able to walk, run, and lift during this time (id. ¶ 69), and he did not consider his daily activities to be restricted (id. ¶ 68). Green also did not consider himself to be restricted at the time Pace fired him, and does not contend that he actually was disabled at that time. (Id. ¶¶ 68, 74.)

  DISCUSSION

  I. Summary Judgment Standard

  Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Federal Rule of Civil Procedure 56(c) "mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; accord, e.g., Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995). In ruling on a summary judgment motion, it is not a court's "function to scour the record in search of evidence to defeat . . . summary judgment; [a court relies] on the nonmoving party to identify with reasonable particularity the evidence upon which [the nonmoving party] relies." Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996); see also, e.g., Richards, 55 F.3d at 251.

  II. The ADA

  Section 12112(a) of the ADA prohibits, among other things, discrimination "against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees." 42 U.S.C. § 12112(a); accord Buie v. Quad/Graphics, Inc., 366 F.3d 496, 502 (7th Cir. 2004). Section 12111(8) defines a "qualified individual with a disability" 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); accord Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 818 (7th Cir. 2004). Section 12102(2) defines a disability, in relevant part, as either "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; . . . or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2); accord, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999). A. Green Does Not Contend that He Was Disabled for Purposes Of The ADA And There Is No Triable Contention That He Was Regarded As Disabled By Pace

  Summary judgment in this case is justified for multiple, independent reasons. The first is that Green does not contend that he actually was disabled within the meaning of the ADA and there is no triable contention that he was regarded as disabled by relevant Pace decisionmakers.

  For Mr. Green's ADA claim to survive summary judgment, he must produce sufficient evidence to meet his "threshold burden" of establishing that "he is disabled as that term is defined in the ADA." Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 950 (7th Cir. 2000). Green has indicated that he does not believe that he was disabled at the time he was terminated (Def.'s St. ¶ 74); rather, in his Opposition to Defendant's Motion for Summary Judgment, Green contends that his suit presents a "perceived disability case." (D.E. 58 at 1, 11.) Green has therefore framed his ADA claim as a "regarded as disabled" claim, one of the recognized types of ADA claims. See 42 U.S.C. § 12102(2)(C); Sutton, 527 U.S. at 489.

  To fall within § 12102(2)(C), Green must demonstrate that: (1) Pace mistakenly believed that he had a physical impairment that substantially limits one or more of his major life activities, or (2) Pace mistakenly believed that an actual, nonlimiting impairment substantially limits one or more major life activities. See, e.g., Mack v. Great Dane Trailers, 308 F.3d 776, 780 (7th Cir. 2002). Green is apparently attempting to proceed under the second prong, arguing, as discussed below, that Pace believed that Green's heart condition limited him in four major life activities. (D.E. 58 at 12.) The question for the Court, then, "is whether [Pace] perceived [Green's IDC] to be sufficiently severe to substantially limit a major life activity." Skorup v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998). In this regard, Green must show more than that Pace was aware of his IDC. See, e.g., Skorup, 153 F.3d at 515. Rather, Mr. Green must show that Pace knew ...


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