The opinion of the court was delivered by: JEANNE SCOTT, District Judge
This matter comes before the Court on Defendant Cargill Meat
Solutions Corporation, f/k/a Excel Corporation's (Excel) Motion
for Summary Judgment (d/e 14). Plaintiff James Hill claims that
Excel violated his rights under the Americans with Disabilities
Act (ADA). 29 U.S.C. § 12101, et seq. Hill works for Excel.
He claims that he was a qualified person with a disability, and
Excel violated the ADA by placing him on medical leave from
October 2002 to August 2003. He claims that Excel should have
accommodated his disability by placing him in an available,
vacant position that he could have performed with his
limitations. Excel claims that no such position was available.
Hill has failed to present evidence showing that such a position was available. The Motion
is, therefore, ALLOWED.
Hill is employed by Excel at its hog processing plant in
Beardstown, Illinois. Hill has worked at the plant since the
early 1970's. Excel acquired the plant in 1987, and Hill began
working for Excel at that time. Hill is a member of a union and
his employment at Excel is governed by a collective bargaining
agreement. Under the terms of the collective bargaining
agreement, open jobs are posted for bidding. Under the bidding
process, the qualified employee with the highest seniority who
bids on the position will receive it.
Beginning in 1996, Hill suffered injuries and underwent several
surgeries. As a result, he has several physical limitations. Due
to these limitations, Excel has, over the years, assigned Hill to
various jobs that fit within his restrictions.
Hill was again injured in August 2002. At that time he worked
at Excel in the monitor final rail job. After that injury, Hill's
treating physician placed permanent restrictions on his work;
Hill could not perform work that required: (1) lifting more than
five pounds below shoulder level; (2) lifting anything above shoulder level; (3) working in facilities with
temperatures below 50 degrees; (4) working above shoulder level;
(5) pushing or pulling; (6) climbing ladders; (7) engaging in
repetitive motions; (8) working with high-speed or moving
machinery; (9) performing repetitive shoveling or sweeping; or
(10) kneeling, squatting, crawling or stooping.*fn1 As a
result of these restrictions, Hill could no longer perform the
monitor final rail job. Defendant's Memorandum of Law in Support
of its Motion for Summary Judgment (d/e 15) (Defendant's
Memorandum), Statement of Undisputed Facts, ¶¶ 9-10; Response
and Memorandum of Law in Opposition to Defendant's Motion for
Summary Judgment Pursuant to Fed.R.Civ.P. 56 and Local Rule
7.1(D)(2) (d/e 23) (Plaintiff's Response), Undisputed Material
Facts, ¶¶ 4-5.
After the August 2002 injury, Hill and representatives of Excel
toured the plant to see if any positions were available that Hill
could perform in light of his permanent restrictions. According
to Hill, he could have performed an open position that had been
formerly performed by a man named Mike Coulter (Coulter
Position). Plaintiff's Response, Exhibit A, James Hill Deposition (Hill Deposition) at 46-48. The parties
referred to the Coulter Position as a "trim back fatback"
position or "save lean trace" position. The Court will refer to
this type of job as a save lean trace position. Excel did not
place Hill in the Coulter Position. Rather, Excel placed Hill on
medical leave in October 2002. Excel's Human Resource Manager
Suzanne Young states in her affidavit that Coulter took family
medical leave in November 2002. Defendant's Reply in Support of
Its Motion for Summary Judgment (d/e 25), Exhibit 2, Affidavit
of Susan Young (Young Affidavit), ¶ 3. Excel considered Coulter
to be occupying the Coulter Position while he was on family
medical leave. Id. Thus, according to Excel, the Coulter
Position was not vacant and available for Hill at that time.
Hill states in his deposition that sometime in 2003, while he
was on medical leave, another save lean trace position opened up
(Second Position). Hill Deposition at 125-128. Hill put in a
bid for the Second Position. He states that a plant nurse at
Excel told him to call his doctor to have the doctor lift some of
the restrictions so that he could meet the requirements of the
Second Position. Hill states in his deposition that by the time
he got home to call his doctor, the nurse at Excel had already
called his doctor, "and said he is going to be standing at a table, he's going to be
trimming this meat, and all he has to do is throw it in a vat."
Id. at 127. Hill states that this was an incorrect description
of the Second Position. His doctor did not change the
restrictions on his work at that time, and Hill did not get the
Second Position. Id.
According to Susan Young, the Second Position opened on June
19, 2003. She states that Hill did not receive the Second
Position because the save lean trace position required working in
cold temperatures, and Hill could not work at cold temperatures.
Young Affidavit, ¶ 4.
On July 20, 2003, Mike Coulter died. Excel then posted the
Coulter Position as a vacant position. Hill bid on the Coulter
Position. On August 3, 2003, Hill's physician issued a status
report in which he modified Hill's permanent restrictions to
allow him to work at temperatures of 45 degrees as long as he
wore warm clothing. Reply, attached Hill Deposition Exhibit
26. With this change in Hill's restrictions, he was qualified for
the Coulter Position. Hill Deposition at 125-26. Excel then
called Hill back to work and placed him in the Coulter Position
in August 2003. He has continued to work at Excel in several different positions.*fn2
Excel now moves for summary judgment. At summary judgment,
Excel must present evidence that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986). The Court must consider the evidence
presented in the light most favorable to Hill. Any doubt as to
the existence of a genuine issue for trial must be resolved
against Excel. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). Once Excel has met its burden, Hill must present
evidence to show that issues of fact remain with respect to an
issue essential to his case, and on which he will bear the burden
of proof at trial. Celotex Corp., 477 U.S. at 322; Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
To establish a claim of disability discrimination, Hill must
show that he was disabled within the meaning of the ADA, that he
was qualified to perform the essential functions of the job,
either with or without a reasonable accommodation, and that he suffered an adverse
employment action because of his disability. Moore v. J.B. Hunt
Transport, Inc., 221 F.3d 944, 951 (7th Cir. 2000).
Reassignment to a vacant position that the disabled person can
perform constitutes a reasonable accommodation. Ozlowski v.
Henderson, 237 F.3d 837, 840 (7th Cir. 2001). A plaintiff
has the burden of showing that a position for which he was
qualified was vacant. Id. A position, however, is not vacant if
the employer has elected not to fill the position based on a
reason that is wholly independent of the plaintiff's disability.
Id. at 841.
Hill claims that he was a qualified person with a disability
and that Excel was obligated to make the reasonable accommodation
by placing him, in 2002, in the Coulter Position or, in 2003, in
the Second Position. Excel responds that placing Hill in either
of these positions was not a reasonable accommodation because:
(1) the Coulter Position was not vacant because Coulter was on
family medical leave, and Excel considered him to still be
occupying the position; and (2) Hill was not qualified for the
Second Position because, according to Hill's permanent
restrictions at the time, he could not work at temperatures below
50 degrees, and the save lean trace position required working in
conditions that were below that temperature. The undisputed, competent evidence supports Excel's position.
The Coulter Position was not vacant because Excel was holding it
open for Coulter while he was on family medical leave. Excel was
obligated by the Family and Medical Leave Act to allow Coulter to
return to his prior employment, or equivalent employment, if he