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July 26, 2004.

EMMITT G. RULE, Plaintiff,

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

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, at 1.)

  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 11-12.)

  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 15-16.)

  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). ...

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