United States District Court, N.D. Illinois, Eastern Division
July 26, 2004.
EMMITT G. RULE, Plaintiff,
JEWEL FOOD STORES, INC. Defendant.
The opinion of the court was delivered by: MARK FILIP, District Judge
MEMORANDUM OPINION GRANTING DEFENDANT JEWEL FOOD STORES, INC.'S
MOTION FOR SUMMARY JUDGMENT
Plaintiff Emmitt G. Rule, an African American man who injured
his back at work, has sued his employer, Defendant Jewel Food
Stores, Inc. ("Defendant" or "Jewel"), under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et
seq. ("Title VII"), the Civil Rights Act of 1871, as amended,
42 U.S.C. § 1981 ("Section 1981"), and Title I of the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.
("ADA"). Mr. Rule alleges that he was discriminated against on
the basis of his race, disability, or at least perceived
disability by his employer as to him. Defendant has moved for
summary judgment. For the reasons stated below, Defendant's
motion is granted.
On September 26, 1994, Mr. Rule began working at Jewel's
Warehouse Complex in Melrose Park, Illinois as a part-time
Assembler and, in 1998, he was upgraded to the position of
full-time Assembler. Assemblers select merchandise from
warehouses, stack the merchandise on pallets, and position it on
a loading dock, where it is then loaded on semi-truck trailers
for delivery to Jewel retail grocery stores. The Assembler position
requires the ability to lift weights of up to 100 pounds with
some frequency. (D.E. 20 at 2-4.)
In addition to the position of Assembler, two other types of
Warehouse Complex jobs are relevant to the case: Janitor and
Trailer Sanitor. Janitors are primarily responsible for cleaning
and tidying the buildings and grounds. The Janitor position
requires little, if any, heavy lifting. Trailer Sanitors clean
out the truck trailers that are used to transport foodstuffs and
other merchandise from the Warehouse Complex to Jewel's retail
stores. Trailer Sanitors also are not required to do any heavy
lifting but, at times, must climb over debris in unlit trailers.
(Id. at 4; D.E. 22 at 7.) Thus, Assembler is the most
physically demanding position (in that it commonly requires heavy
lifting), and the job of Janitor has the lowest risk of injury
and is the least physically demanding (because it requires no
heavy lifting or climbing over debris in unlit trailers). (D.E.
22 at 7-8.) Of the three positions, Assembler, Janitor, and
Trailer Sanitor, Mr. Rule considers Janitor the most preferable
and Trailer Sanitor the least desirable. (Id. at 7-8.) As
explained below, Plaintiff's suit concerns the fact that after he
suffered an injury at work as an Assembler and took time off to
recover, he was (for reasons the parties dispute) placed in the
Trailer Sanitor position and his ability to move out of this
position has been hindered by the relatively low job bidding
seniority afforded to Trailer Sanitors. (D.E. 19 at 1-5.)
During the time period relevant to this case, the hourly
employees at the Warehouse Complex, including Mr. Rule, were
represented by the Chicago Truck Drivers, Helpers and Warehouse
Workers Union ("CTDU"), and they were covered by a Collective
Bargaining Agreement ("CBA") between Jewel and the CTDU in effect
from April 1, 1998, to March 31, 2003. (D.E. 20 at 3.) Section
8.8 of the CBA requires that job openings be posted throughout the Warehouse Complex and states that all employees have the
right to bid for any posted jobs. Job vacancies are filled on the
basis of the bidder's seniority, which is largely determined by
the bidder's position. Trailer Sanitors are assigned the lowest
level of job bidding seniority, part-time Assemblers are given
the next highest level of seniority, and the highest relative
seniority level is held by Janitors and full-time
Assemblers.*fn1 In addition to position, seniority is also
dictated by date of hire. (Id. at 5.)
On or about June 5, 1998, Mr. Rule injured his back while
working as an Assembler. As a result of his injury, Mr. Rule took
a medical leave of absence. On August 6, 1998, Mr. Rule underwent
an MRI scan which revealed that he had a herniated disc at L5-S1,
with no impingement on the thecal sac (a thin walled tube filled
with cerebrospinal fluid that surrounds the spinal cord). On or
about September 10, 1998, Mr. Rule filed a claim for worker's
compensation. As part of that claim, Mr. Rule asserted that he
had suffered permanent injuries as a result of his work-related
injury. (D.E. 15, Exhibit A, at 224.) On October 1, 1998, Dr.
Augusto Chavez*fn2 performed a functional capacity
evaluation of Mr. Rule and stated in his report that
"[p]resently, client has demonstrated the ability to lift 40 lb.
on an occasional basis. Activities of overhead reaching,
squatting, stair climbing, bending, kneeling, and ½ kneeling are all limited to an occasional basis only. Standing/walking is
limited to 30 minute durations." (D.E. 15, Exhibit 28 to Exhibit
A, 2.) On November 2, 1998, Cheryl Nolan, apparently a Jewel
employee, sent an email to "D. Frasco," also apparently a Jewel
employee, which summarizes the restrictions identified by Dr.
Chavez and states that Ms. Nolan told a representative of Kemper,
Jewel's worker's compensation insurance carrier, "that there was
no way these restrictions could be accommodated in an Assembler
or any other permanent position and that Kemper should look for
other alternatives or work to get these restrictions lifted."
(D.E. 20, Exhibit J.) That same day, this email was forwarded to
Joe Hermann, Mr. Rule's supervisor. Plaintiff notes that Dr.
Chavez did "not state these restrictions were permanent." (D.E.
19 at 3.)
On January 6, 1999, Mr. Rule's own treating physician, Dr.
Prakash G. Sane, examined Mr. Rule and concluded that his only
restrictions were that he should not lift over sixty pounds or
work more than a standard five day work week at a rate of eight
hours per day. (D.E. 20 at 10.) On February 17, 1999, an
independent medical examiner of the Center for Sports
Orthopedics, Dr. Theodore J. Suchy, conducted a medical
examination of Mr. Rule and sent Jewel's worker's compensation
carrier a report that states, "[o]n my examination, I found no
objective findings, other than his morbid obesity [Mr. Rule
weighs 330 pounds at 6'6"], that could be a contributing factor
to his subjective complaints of low back and right buttock pain."
(D.E. 15, Exhibit 26 to Exhibit A, D0033.) The report further
states that "[i]t is reasonable, with this patient's stature,
that he will have chronic mechanical low back dysfunction and
should be restricted from lifting more than 40 pounds on a more
than occasional basis. . . . [U]nless the patient has a
significant change in body habitus, I think back dysfunction is
something that will plague him for the rest of his life."*fn3 (Id.) On September 2, 1999, the Illinois
Industrial Commission approved a settlement agreement between
Jewel and Mr. Rule resolving Mr. Rule's worker's compensation
claim. The "nature of the injury" section of the settlement
contract which was signed by Mr. Rule (D.E. 15, Exhibit 27 to
Exhibit A, at 2) states that Mr. Rule had a "permanent 40 pound
lifting restriction."*fn4 (Id., Exhibit 27 to Exhibit A,
Mr. Rule received Total Temporary Disability worker's
compensation benefits ("TTD benefits"), which are 66 2/3% of his
average gross weekly wage, until such benefits were terminated on
January 29, 1999. (D.E. 22 at 25.) Jewel claims that from 1998 to
1999 it had a uniform policy that if an employee was off work
continuously for more than fifty-two weeks, the employee would be
subject to termination. (D.E. 20 at 12.) Mr. Rule contends that
termination is allowed under the relevant terms of the CBA only
if an employee "fails to report to work due to a proven
non-worker compensation illness or injury of the employee for a
period of twelve (12) consecutive months," (D.E. 20, Exhibit 1 to
Exhibit A, D0016), and so the policy should not have applied to
him. (D.E. 20 at 12.) Regardless of whether Jewel's policy of
terminating employees off work continuously for more than
fifty-two weeks was consistent with the CBA, the existence of
this policy and the discontinuation of Mr. Rule's TTD benefits
exerted pressure on him to return to work.*fn5 (D.E. 19 at
2-3.) Because he could not perform the Assembler position with the
lifting restriction (as stated in the workers compensation
settlement agreement and as diagnosed by all of the doctors who
had seen him), Mr. Rule, while on medical leave, telephoned Mr.
Hermann several times to discuss his desire to bid on another job
position. Mr. Rule desired a position which he would be able to
perform with his lifting restriction (which was indefinite in
duration) and which would help him avoid future injuries to his
back.*fn6 Mr. Rule also contacted Union Trustee and Business
Agent Lloyd Caldwell on several occasions about bidding on a job
position within his medical restrictions. Mr. Rule wanted a
Janitor position his most desired position at the Warehouse.
However, Mr. Rule's seniority as an Assembler with a hire date of
September 26, 1994 was not sufficient to enable him to win any of
the available Janitor positions by competitive bid. In this
regard, it appears that Mr. Rule's co-workers agree that the
Janitor positions are the most desirable, as any such positions
had gone to coworkers with more seniority as determined under the
CBA. (D.E. 20 at 11-12.) In April 1999, Jewel decided to create a job opening for a
Trailer Sanitor position. (D.E. 20 at 13.) Accordingly, on April
30, 1999, Jewel posted a job opening for a permanent Trailer
Sanitor position. On or about April 30, 1999, Mr. Rule spoke to
Mr. Hermann. (Id.) Jewel contends that Mr. Rule asked Mr.
Hermann to add Mr. Rule's name to the bid sheet for the open
Trailer Sanitor position. Jewel further contends that Mr. Hermann
confirmed that Mr. Rule understood that by accepting the position
of Trailer Sanitor, he would be paid less than he had been as an
Assembler and would be treated for seniority purposes as a
Trailer Sanitor. Mr. Hermann testified that he placed Mr. Rule's
name (and his own initials) on the bid sheet for the Trailer
Sanitor position pursuant to a request Mr. Rule made in a
telephone call.*fn7 (D.E. 20, Exhibit E, 98.) Jewel also
asserts that previously, during Mr. Rule's medical leave, Mr.
Rule asked Mr. Hermann to place Mr. Rule's name on bid sheets for
open Janitor positions and that Mr. Hermann did so, although Mr.
Rule did not win the bids for the Janitor jobs. (D.E. 20 at
Mr. Rule maintains that he never asked Mr. Hermann to sign any
bid sheets for him, either for Janitor or Trailer Sanitor
positions. Mr. Rule further states it is customary that the memos posted showing job openings include "language requiring the
signature, on the attached bid sign-up sheet, of the employee
bidding on the job." (D.E. 22 at 4.) According to Mr. Rule, "[i]t
is not proper procedure for a supervisor to sign a bid for an
employee. Only the employee himself, or a union representative on
his behalf, can sign a bid."*fn8 (Id. at 6.) In a sworn
affidavit Mr. Rule submitted to the National Labor Relations
Board on January 29, 2001, in support of a charge he filed
against Jewel claiming he was forced into the Trailer Sanitor
position in retaliation for his union activities, Mr. Rule stated
"I believe that Joe Herman mistakenly signed me up for a sanitor
job permanent when I asked him to sign me up as a janitor (and
not a sanitor)." (D.E. 15, Exhibit 37 to Exhibit A, D0057.)
At the same time Mr. Rule was on medical leave, another
employee who had been hired as an Assembler, James Novello, was
also on medical leave due to a work-related injury. It is
undisputed that Mr. Novello did not bid on the Trailer Sanitor
job and never authorized anyone to bid on his behalf. (D.E. 22 at
17-19.) It is also undisputed that Mr. Novello is Caucasian.
(D.E. 27-28.) Joe Masciopinto, Jewel's Superintendent of
Transportation at the Warehouse Complex, placed Mr. Rule and Mr.
Novello into Trailer Sanitor positions in May 1999. (D.E. 20 at
Mr. Rule and Mr. Novello both returned to work in May 1999 and
performed Trailer Sanitor duties.*fn9 (Id. at 17-18, 28.)
Mr. Rule and Mr. Novello both claim that, at first, they thought that were working as Trailer Sanitors on "modified duty"
assignments (rather than actually being considered Trailer
Sanitors for all purposes, including bidding rights). (Id. at
17, 27-28.) A September 1, 1998, Letter of Understanding ("LOU")
between Jewel and CTDU distinguishes between employees who are
placed in the Trailer Sanitor position temporarily as a "modified
duty" assignment and those who are hired as Trailer Sanitors or
bid into the position. The LOU also provides that employees who
are temporarily assigned "on modified duty" to work as Trailer
Sanitors are to be returned to their original work location once
they receive a full medical release. (Id. at 6-7.) Section 5.3
of the CBA states that employees performing temporary modified
duty work "shall not have [their] pay rate reduced for such
unless the job change is on a permanent basis and the employee[s]
[are] so notified." (Id. at 7.) Upon their return, Mr. Rule and
Mr. Novello were paid at the Trailer Sanitor rate (which is less
than the rate paid to Assemblers). (Id. at 17, 27-28.)
Mr. Rule states that he at first believed he was being placed
in the Trailer Sanitor position only temporarily, while
maintaining his Assembler rate of pay and bidding seniority, in
part, because he knew that another Assembler, Russell Allen, was
accommodated in such a fashion ten years earlier. (D.E. 20,
Exhibit A, ¶ 28.) On January 27, 1988, Mr. Allen, a Caucasian
Jewel employee, was injured at work. He was temporarily assigned to
perform the duties of a Trailer Sanitor (though the CBA in effect
at the time did not recognize a distinct Trailer Sanitor position
(D.E. 20 at 26-27))*fn10 in 1989 during the period in which
he was expected to recuperate from his temporary incapacity.
(Id. at 26.) While performing the duties of a Trailer Sanitor,
Mr. Allen retained his seniority as an Assembler. In September
1991, he successfully bid on a Janitor position. (Id. at
26-27.) Mr. Herman, Mr. Bowden, and Mr. Masciopinto did not have
anything to do with Mr. Allen's placement. (Id. at 27.)
Although Jewel asserts that Mr. Rule knew he was "permanently"
assigned to the job of Trailer Sanitor at the time he was placed
in that position in May 1999, Mr. Rule contends that he did not
know that this assignment was permanent until on or about July
27, 2000.*fn11 (D.E. 22 at 15.) On that date, Mr. Rule received a full medical release from
his treating physician Dr. Sane. Mr. Rule asserts that it was his
understanding at this time that once he received a release to
full duty, he would be returned to his original position of
full-time Assembler. Mr. Rule gave his release to Mr. Hermann on
July 27, 2000, but was told by Mr. Hermann that he was no longer
an Assembler, but instead was a Trailer Sanitor. (D.E. 20,
Exhibit A, ¶¶ 35-36.)
On or about August 7, 2000, the Warehouse Complex posted an
open Janitor position. Mr. Rule bid on that position but lost the
bid. That position was initially awarded on August 20, 2000, to
Mike DeFelice, the most senior employee who had signed the bid
sheet and a Caucasian. (D.E. 20 at 21-22.) Joe Davis, a more
senior employee and an African American, returned from vacation
on September 13, 2000, and exercised his right under the CBA to
claim the Janitor position from Mr. DeFelice. Jewel then removed
Mr. DeFelice from the Janitor position and returned him to his
prior position of Assembler. (D.E. 20 at 21). Mr. Davis later
revoked his bid and returned to the Assembler job, with Mr.
DeFelice then receiving the Janitor position once again. (D.E.
20, Exhibit A, ¶ 39.)
Under the CBA seniority rules, if Mr. Rule had not been
classified as a Trailer Sanitor, he would have initially won the
bid for the August 7, 2000 Janitor position because Mr. Rule has
an earlier date of hire than Mr. DeFelice.*fn12 However, Mr.
Davis still could have displaced Mr. Rule because Mr. Davis has an earlier hire date. Of course, if Mr.
Davis decided not to displace Mr. Rule (or to take the job and
then give it back as he did with Mr. DeFelice) then Mr. Rule
would have been entitled to the Janitor job. (D.E. 22 at 16-17.)
On August 22, 2000, and September 12, 2000, Mr. Rule filed
grievances claiming that he should have been awarded the Janitor
position. In his grievances, Mr. Rule contended that because he
received a full release on July 27, 2000, he should have been
returned to the position of Assembler with Assembler bidding
rights. (D.E. 20 at 22.) In accordance with the CBA's grievance
procedures, Jewel and the CTDU held a Joint Grievance Committee
hearing on September 29, 2000 to consider Mr. Rule's grievances.
The Joint Grievance Committee is comprised of two management
representatives and two union representatives. After presentation
of the evidence, the Joint Grievance Committee ruled that Mr.
Rule should provide "[a] detailed medical narrative of any and
all treatments to include office visits, therapies and medication
prescribed since June 5, 1998."*fn13 (Id. at 22-23.) The
Joint Grievance Committee reconvened on October 27, 2000. After
considering the medical documentation provided by Mr. Rule and
other evidence, the JGC ruled that Mr. Rule "has no medical
restrictions, that he bid on the Sanitor job in 1999 and,
therefore, if he wants to get off the Sanitor job, he must bid
off of the job as provided for in the Collective Bargaining Agreement."*fn14
(D.E. 20 at 23.) Both union representatives voted against Mr.
Rule in the grievance. (Id. at 23.)
Summary judgment is proper where "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 a
judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining
whether there is a genuine issue of fact, the court "must
construe the facts and draw all reasonable inferences in the
light most favorable to the nonmoving party." Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). Once the moving
party satisfies this burden, the nonmovant must set forth
specific facts showing that there is a genuine material issue for
trial. See Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.
2001). To avoid summary judgment, the opposing party must go
beyond the pleadings and "set forth specific facts showing that
there is a genuine issue for trial." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986).
Plaintiff asserts that Defendant violated Title VII, Section
1981, and the ADA by placing him in the Trailer Sanitor position,
with the relatively lower pay and bidding rights that accompany
that position (as compared with his former position of
Assembler), because of his race, disability, or at least
perceived disability by Jewel. Defendant has moved for summary judgment on multiple bases. As explained below, the Court grants
Defendant's motion on the grounds that (1) Plaintiff has not
created a triable issue regarding whether Defendant was
impermissibly motivated by race, (2) Plaintiff has not shown that
he is disabled for purposes of the ADA, and (3) Plaintiff has not
created a triable issue concerning whether Defendant regarded him
as disabled within the meaning of the ADA.
A. Title VII and Section 1981
"Since Section 1981 claims are evaluated under the same rubric
as Title VII claims, [the Court] will not address them
separately." Williams v. Waste Management of Illinois,
361 F.3d 1021, 1028 (7th Cir. 2004). Two methods of proving employment
discrimination are available to plaintiffs asserting Title VII
and Section 1981 claims, the "direct method" and the "indirect
method." Cerutti v. BASF Corp., 349 F.3d 1055, 1060 (7th Cir.
2003). "Under the direct method of proof, a plaintiff may show,
by way of direct or circumstantial evidence, that his employer's
decision to take an adverse job action against him was motivated
by an impermissible purpose, such as race. . . ." Id. at 1061.
The Seventh Circuit has instructed that "[d]irect evidence
`essentially requires an admission by the decision-maker that his
actions were based upon the prohibited animus.'" Id. (quoting
Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir.
2003)).*fn15 Alternatively, "[a] plaintiff can also prevail
under the direct method of proof by constructing a `convincing
mosaic' of circumstantial evidence that `allows a jury to infer
intentional discrimination by the decisionmaker.'" Id. (quoting
Rogers, 320 F.3d at 753). However, such circumstantial evidence, "`must point directly to a
discriminatory reason for the employer's action.'" Id. (quoting
Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.
2003)); see generally Castleman v. ACME Boot Co.,
959 F.2d 1417, 1422 (7th Cir. 1992) (teaching that direct evidence will
"rarely" be found).
"If a plaintiff cannot prevail under the direct method of
proof, he must proceed under the indirect method. . . ."
Cerutti, 349 F.3d at 1061. The indirect method "requires the
plaintiff to establish four things, that: 1) he belongs to a
protected class; 2) his performance met his employer's legitimate
expectations; 3) he suffered an adverse employment action; 4)
similarly situated others not in his protected class received
more favorable treatment." Brummett v. Lee Enterprises, Inc.,
284 F.3d 742, 744 (7th Cir. 2002). If the plaintiff makes this
prima facie showing, the defendant must then produce a
legitimate nondiscriminatory reason for its decision. See
Cerutti, 349 F.3d at 1061. Should the defendant offer such a
legitimate nondiscriminatory explanation, the plaintiff must
present evidence "`that the employer's proffered explanation is
pretextual [i.e., a lie].'" Id. (quoting Peele v. Country Mut.
Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002)). However, "[t]he
plaintiff must meet each prong of the prima facie test before it
becomes necessary to reach the issue of pretext." Brummett, 284
F.3d at 745.
The Court respectfully holds that Plaintiff is unable to avoid
summary judgment under either method.
1. The Direct Method
Plaintiff appears to be primarily attempting to proceed under
the indirect method. However, in his opposition brief, Plaintiff
makes one brief reference to the direct method. (D.E. 19 at 9.)
The following paragraph constitutes the entirety of Plaintiff's
argument with respect to his ability to proceed under the direct method:
In Troupe v. May Department Stores Co.,
20 F.3d 734, 737 (7th Cir. 1994) the Court held that all the
facts taken together can create a mosaic of
discrimination which reasonably infers that the
adverse action was taken because the plaintiff was a
member of a protected class. This is all that is
required to defeat a motion for summary judgment. In
other words, there must be evidence from which the
trier of fact could infer that the reason given by
the employer was pretextual. Senner v. North Central
Technical College, 113 F.3d 750, 755 (7th Cir.
(D.E. 19 at 9.) Thus, Plaintiff appears to be arguing that if he
can raise an issue of fact regarding whether Defendant's reason
for permanently placing him into the Trailer Sanitor position is
pretextual (e.g., whether Plaintiff disagrees with Mr. Herman
concerning whether Plaintiff told Mr. Hermann to bid on the
Trailer Sanitor position for Plaintiff), he has provided
sufficient direct evidence of discrimination to avoid summary
judgment. The Court respectfully disagrees.
As suggested above, caselaw makes clear that Plaintiff cannot
bypass the requirement that he first meet the elements of the
prima facie case before he relies on evidence of pretext as his
basis for avoiding summary judgment. See Brummett, 284 F.3d at
745 ("[t]he plaintiff must meet each prong of the prima facie
test before it becomes necessary to reach the issue of
pretext."); accord, e.g., Cerutti, 349 F.3d at 1061 ("A
plaintiff does not reach the pretext stage, however, unless he
first establishes a prima facie case of discrimination under the
indirect method."); Peele, 288 F.3d at 327 ("If a plaintiff is
unable to establish a prima facie case of employment
discrimination under McDonnell Douglas, an employer may not be
subjected to a pretext inquiry.") Brummett is particularly
instructive in this regard. In Brummett, the employer fired the
plaintiff and cited as reasons "Brummett's lack of a driver's
license and his failure to report his D.U.I. arrest." Brummett,
284 F.3d at 745. Brummett claimed that because he raised a
factual dispute as to whether he actually did report the arrest
to his employer, he should survive summary judgment because of the disputed issue concerning
pretext. Id. The Seventh Circuit held that Brummett's attempted
approach was improper because it "puts the pretext cart before
the prima facie horse." Id. The Court held that because
Brummett could not meet the elements of the prima facie case,
he could not save his claim by raising a disputed fact regarding
pretext. Id. at 744-45. As explained below, Mr. Rule also
cannot meet the required prima facie elements. Therefore, under
Brummett, Mr. Rule cannot avoid summary judgment simply by
pointing to a disputed factual issue concerning whether Mr. Rule
told Mr. Hermann to bid on the Trailer Sanitor position on Mr.
Rule's behalf. See Brummett, 284 F.3d at 744 ("The plaintiff
must meet each prong of the prima facie test before it becomes
necessary to reach the issue of pretext") (citing Coco v.
Elmwood Care, Inc., 128 F.3d 1117, 1179 (7th Cir.
1997));*fn16 accord, e.g., Robin v. Espo Engineering
Corp., 200 F.3d 1081, 1092 (7th Cir. 2000) (holding that "[f]or
us to consider Robin's evidence of pretext, he has to establish a
prima facie case of discrimination, which he has failed to do"
where plaintiff claimed he demonstrated a mosaic of evidence of
discrimination).*fn17 The Court is not holding that evidence of pretext could never
be part of a mosaic of circumstantial evidence sufficient to
create a triable issue regarding discrimination. See generally
Robin 200 F.3d at 1089 (discussing "mosaic" analysis but stating
that "we continue to recognize that the burden shifting framework
provides a `useful organizational structure under which the
parties and the . . . court can assess the need for a full
trial.'" (quoting Sattar v. Motorola, Inc., 138 F.3d 1164, 1169
(7th Cir. 1998)). However, in this case, no such mosaic has been
established. As noted above, Plaintiff has not even attempted to
identify an array of bits and pieces of evidence it contends
constitutes a mosaic but instead merely makes a general reference
to its ability to show pretext. More importantly, assuming, as
the Court must, that Mr. Rule did not tell Mr. Hermann to bid on
the Trailer Sanitor job and that Jewel nonetheless unilaterally
placed him in that position, this fact does not raise an
inference that discriminatory animus motivated Jewel's actions
within the factual record of this case because it is undisputed
that Jewel simultaneously did the exact same thing to Mr.
Novello, who is Caucasian. See Vore v. Indiana Bell Telephone
Co., Inc., 32 F.3d 1161, 1164 (7th Cir. 1994) ("Weymon's
behavior demonstrated no racial animus. He did not mistreat only
whites; he mistreated everyone."); see also Robin, 200 F.3d at
1092 n. 5 (rejecting "pretext"/mosaic argument based on record in
case). Indeed, Plaintiff's counsel almost concedes as much by
stating that "[i]t is unclear what arguable reason Jewel could
have for wanting to force Rule into the job of Sanitor
permanently other than reducing its exposure under worker's
compensation." (D.E. 19 at 12.)*fn18 Precedent teaches that such a showing is inadequate for Plaintiff to prevail. See,
e.g., Cianci v. Pettibone Corp., 152 F.3d 723, 727 (7th Cir.
1998) (stating that plaintiff's termination may have been unfair,
but rejecting claim because "`Title VII does not prohibit
unfairness or wrongheaded decisions in the workplace.'") (quoting
Johnson v. Hondo, Inc., 125 F.3d 408, 415 (7th Cir. 1997)).
Hence, because Plaintiff has not established a mosaic of
circumstantial evidence sufficient to raise the inference that
Defendant acted with a racially discriminatory animus when it
placed Plaintiff in the Trailer Sanitor position, Plaintiff
cannot prevail under the direct method of proof. See generally
Robin 200 F.3d at 1092 & n. 5 (finding summary judgment
appropriate under McDonnell Douglas analysis but continuing to
state that even if pretext evidence were considered more
generally, the evidence failed to create "a convincing mosaic of
[direct proof of age] discrimination," even where, two years
before plaintiff was fired, defendant said plaintiff was "getting
too old" and was an "old S.O.B.").
2. The Indirect Method
As mentioned above, Plaintiff is unable to succeed under the
indirect method because he cannot establish a prima facie case
of racial discrimination. Plaintiff cannot establish a prima
facie case because he has not presented evidence that a
similarly situated employee outside of his protected group was
treated more favorably. The employee Plaintiff identified in an
attempt to meet this element, Mr. Allen, was not similarly
situated to Plaintiff. "To meet her burden of demonstrating that another employee is
`similarly situated,' a plaintiff must show that there is someone
who is directly comparable to her in all material respects."
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.
2002). "In determining whether two employees are similarly
situated a court must look at all relevant factors, the number of
which depends on the context of the case." Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). "Such
factors include whether the employees `dealt with the same
supervisor' and were `subject to the same standards.'"
Patterson 281 F.3d at 680 (quoting Radue, 219 F.3d at
617-18). In addition, employees are not similarly situated if
they are subject to "differentiating or mitigating circumstances
as would distinguish their conduct or the employer's treatment of
them." Radue, 219 F.3d at 618.
One reason why Mr. Rule and Mr. Allen are not similarly
situated is that they did not have the same supervisors.
Precedent teaches that "[d]ifferent employment decisions,
concerning different employees, made by different supervisors,
are seldom sufficiently comparable to establish a prima facie
case of discrimination for the simple reason that different
supervisors may exercise their discretion differently." Radue,
219 F.3d at 618; accord, e.g., id. ("`[W]hen different
decision-makers are involved, two decisions are rarely similarly
situated in all relevant respects.'") (quoting Stanback v. Best
Diversified Products, Inc., 180 F.3d 903, 910 (8th Cir. 1999));
Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 940 (7th Cir.
2003); Snipes v. Illinois Dep't of Correction, 291 F.3d 460,
463 (7th Cir. 2002). In addition, as Plaintiff admits, his
lifting restriction was "indefinite" while Mr. Allen's incapacity
was known to be temporary and Mr. Allen was expected to
recuperate. (D.E. 20 at 11, 26.) Moreover, when Mr. Allen was
asked to temporarily perform trailer sanitation duties in 1988,
the Trailer Sanitor position was not a separately defined position under the CBA then in effect. (D.E.
15, Exhibit I; D.E. 20 at 26-27.) These distinctions are material
and significant, and as a result, Plaintiff has not met his
burden of demonstrating that he and Mr. Allen were "directly
comparable . . . in all material respects." Patterson, 281 F.3d
at 680; accord, e.g., Spath v. Hayes Wheels Int'l,
211 F.3d 392, 397 (7th Cir. 2000); Radue, 219 F.3d at 617-18. Therefore,
Plaintiff cannot establish a prima facie case of
discrimination. Because Plaintiff cannot create a triable issue
regarding racial discrimination under either the direct or
indirect method, Defendant's motion for summary judgment is
granted as to Plaintiff's claims under Title VII and Section
1981. See, e.g., Williams, 361 F.3d at 1028.
B. The ADA Claims
"To invoke protection under the Americans with Disabilities Act
. . . [a plaintiff] must show that she suffers from a disability
as defined in the Act." Skorup v. Modern Door Corp.,
153 F.3d 512, 514 (7th Cir. 1998). Under the ADA, "disability" is defined
in three ways:
(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of [an] individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Plaintiff claims that he qualifies as
disabled in two ways. Plaintiff claims that he is disabled within
the meaning of subsection (A) because his back condition
substantially limits major life activities. He contends that
meets the requirements of subsection (C) because Jewel regarded
him as disabled.
1. Plaintiff's Claimed Actual Disability (Subsection (A))
Plaintiff contends that he is disabled within the meaning of
the ADA because his back condition is an impairment which substantially limits his major
life activities of walking and working inasmuch as he was limited
to walking thirty minutes at a time and he had a forty pound
lifting restriction with respect to work. (D.E. 19 at 3, 11.)
Precedent does not support this claim.
Although walking is a recognized major life activity, see
Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 951 (7th Cir.
2000), the restrictions that were placed on Plaintiff's ability
to walk do not qualify him as disabled within the meaning of the
ADA for two independent reasons. First, caselaw teaches that a
limitation to walking for periods of thirty minutes at a time is
not a sufficiently substantial limitation as to constitute a
disability under the ADA. See, e.g., Moore, 221 F.3d at 951
(holding plaintiff was not substantially limited where he could
walk a mile); Kelly v. Drexel University, 94 F.3d 102, 106 (3d
Cir. 1996) (holding that plaintiff was not substantially limited
where he could not walk more than a mile); Ratliff v. City of
Chicago, No. 99-6986, 2002 WL 2022188, at *5 (N.D. Ill. Aug. 29,
2002) (holding plaintiff was not substantially limited where she
could walk for 30 minutes a day); Bertinetti v. Joy Mining
Machinery, 231 F. Supp.2d 828, 834 (S.D. Ill. 2002) (holding
plaintiff was not substantially limited where he could not walk
more than 100 yards without resting) (collecting cases).
Second, Plaintiff's "ability to walk" claim fails for the
alternative and independent reason that insofar as Plaintiff was
injured on June 5, 1999 and his own treating physician reported
on January 6, 1999 that Plaintiff had no restrictions (other than
that he should not lift over sixty pounds or work more than a
standard five day work week at a rate of eight hours per day),
Plaintiff's ability to walk was impaired for only seven months at
most. For an impairment to qualify as substantially limiting
under the ADA, "[t]he impairment's impact must also be permanent or long term." Toyota Motor Manufacturing, Kentucky,
Inc. v. Williams, 534 U.S. 184, 198 (2002); see Waggoner v.
Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999) ("Disability does
not include temporary medical conditions."). Precedent teaches
that seven months does not qualify as permanent or long term for
the purposes of the ADA. See Pollard v. High's of Baltimore,
Inc., 281 F.3d 462, 469 (4th Cir. 2002) (holding that nine month
impairment was not long-term or permanent for purposes of the
ADA); Colwell v. Suffolk County Police Department,
158 F.3d 635, 646 (2d Cir. 1998) (holding seven-month impairment of too
short a duration to be "substantially limiting"); Lester v.
Trans World Airlines, Inc., No. 95-2349, 1997 WL 417814, *6
(N.D. Ill. July 23, 1997) (collecting cases and holding that
condition requiring nine months of drug therapy "was too
temporary a condition to be considered a disability under the
ADA"). Therefore, the impairment of Plaintiff's ability to walk
does not qualify him as disabled.
In relation to "the major life activity of working,
`substantially limits' means the individual is significantly
restricted in the ability to perform a class of jobs or a broad
range of jobs in various classes." Contreras v. Suncast Corp.,
237 F.3d 756, 762 (7th Cir. 2001). Thus, Plaintiff "has the
burden of presenting evidence to demonstrate that his impairment
limited his ability to perform an entire class of jobs." Id.
Plaintiff has not met this burden.
Plaintiff has identified only one limitation resulting from his
back condition that inhibited his ability to work the forty
pound lifting restriction.*fn19 A substantial body of
authority has held that such a constraint does not "constitute a significant
restriction on one's capacity to work, as the term is understood
within the ADA." Contreras, 237 F.3d at 763 (holding that a
forty-five pound lifting restriction and the inability to engage
in strenuous work or drive a forklift more than four hours a day
did not substantially limit ability to work); see, e.g., Conant
v. City of Hibbing, 271 F.3d 782, 785 (8th Cir. 2001) ("This
court has repeatedly held that the type of work restriction at
issue in this case [30 pound lifting restriction] does not amount
to a `disability' within the meaning of the ADA."); Thompson v.
Holy Family Hospital, 121 F.3d 537, 540-41 (9th Cir. 1997)
(holding that inability to lift 25 pounds on a continuous basis
did not substantially limit ability to work); Stevens v.
Navistar Int'l Transp. Corp., 244 F. Supp.2d 906, 911-12 (N.D.
Ill. 2002) ("Plaintiff's [40 pound] lifting restrictions clearly
do not qualify as a substantial limitation on working."). Indeed,
with this lifting restriction, Plaintiff performed his Trailer
Sanitor duties and does not dispute that he could have functioned
with this restriction in the Janitor position, which does not
require heavy lifting. (D.E. 19 at 2 (plaintiff explaining that
"Rule knew he could perform the Janitor job with his
restrictions.")) The only job that Plaintiff has presented
evidence that the lifting restriction impaired his ability to
perform is Assembler.*fn20 Thus, Plaintiff has not created a triable issue regarding whether
he was significantly restricted in his ability to perform a class
of jobs even within the single Jewel warehouse complex where he
is employed, much less in some reasonable geographic area
surrounding his specific place of employment. See, e.g.,
Contreras, 237 F.3d at 762; Conant, 271 F.3d at 785-86;
Rockwell, 243 F.3d at 1016.
Because Plaintiff has not presented evidence that his back
condition substantially limited a major life activity,
Defendant's motion for summary judgment is granted as to
Plaintiff's claim under subsection (A) of the ADA.
2. Plaintiff's "Regarded As" Claim (Subsection (C))
Plaintiff contends that he has shown that Jewel regarded him as
disabled within the meaning of the ADA because he has raised an
inference that "Jewel knew of Rule's injury and feared that he
would suffer further injury on the job." (D.E. 19 at 11.) Even
assuming that this is true (and such a generic statement can
probably fairly be made after almost any workplace injury), it is
not enough. To survive summary judgment, Plaintiff "must have
evidence that [Defendant] viewed the [Plaintiff's] condition as a
restriction on [his] ability to perform `a class of jobs or a
broad range of jobs in various classes' in the relevant
geographic area." Rockwell, 243 F.3d at 1016; see Tockes v.
Air-Land Transport Servs., Inc., 343 F.3d 895, 896 (7th Cir.
2003) ("Unless the employer mistakenly believes that an employee
has a disability grave enough to be so classified under the ADA,
the employer's acting on the mistaken belief does not violate the statute."). Plaintiff has not met this burden.
It is undisputed that Defendant believes Plaintiff can perform
Trailer Sanitor duties (and it must be, since Defendant placed
Plaintiff in the Trailer Sanitor position after his back injury).
It is also undisputed that Plaintiff's preferred position, the
Janitor position, is less strenuous than the Trailer Sanitor job
insofar as Janitors are not required to climb over debris in
unlit trailers. As Plaintiff describes it, "[t]he Janitor job
involves mainly sweeping duties." (D.E. 19 at 2.) And Plaintiff
has not presented evidence that Jewel regarded him as disabled
with respect to the Janitor position. Thus, Plaintiff has not
contended or created a colorable issue concerning whether
Defendant regarded Plaintiff as significantly restricted in his
ability to perform as a Trailer Sanitor or a Janitor within the
single warehouse complex where he is employed. Although Plaintiff
may have raised an inference that Defendant regarded Plaintiff as
restricted in his ability to perform as an Assembler, this does
not suggest that Defendant perceived Plaintiff as disabled within
the meaning of the ADA. Indeed, even if it is assumed that
Defendant also regarded Plaintiff as unable to perform as a
Replenisher, Loader, or General Laborer (as Plaintiff asserts
without the requisite record support, as discussed above),
Plaintiff still would not have met his burden of presenting
evidence that Defendant viewed him as significantly restricted in
his ability to perform a class of jobs, or a broad range of jobs
in various classes, within some reasonable geographic area around
Plaintiff's place of employment. Rockwell, 243 F.3d at 1018.
Accordingly, Defendant's motion for summary judgment is granted
as to Plaintiff's claim under subsection (C) of the
For the foregoing reasons, Defendant's motion for summary
judgment is granted.