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.
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
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.
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. ¶
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.)
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.
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 ...