United States District Court, C.D. Illinois, Urbana Division
December 9, 2005.
VICTORIA REIBLE, Plaintiff,
ILLINOIS I.O.O.F. OLD FOLKS HOME, d/b/a Odd Fellow-Rebekah Home, Defendant.
The opinion of the court was delivered by: DAVID BERNTHAL, Magistrate Judge
In January 2004, Plaintiff, Victoria Reible, filed a complaint
in the Fifth Judicial Circuit Court, Coles County, Illinois,
against Defendant, Illinois I.O.O.F. Old Folk's Home d/b/a Odd
Fellow-Rebekah Home. In February 2004, Defendant filed a Notice
of Removal (#1), removing the case to federal court. Federal
jurisdiction is based on federal question (28 U.S.C. § 1331)
because one of Plaintiff's claims is based on a federal statute.
The parties have consented to jurisdiction by a federal
In August 2005, Defendant Illinois I.O.O.F. Old Folk's Home
(hereinafter "Home") filed a Motion for Summary Judgment (#27).
After reviewing Defendant's motion and the parties' memoranda and
evidence, the Court GRANTS Defendant's Motion for Summary
Plaintiff's complaint alleges two counts as follows: In Count
I, she alleges that her employment was terminated because she
filed a workers' compensation claim. In Count II, she alleges
that Defendant terminated her employment in violation of the
Americans with Disabilities Act (hereinafter "ADA")
(42 U.S.C. § 12101, et seq.).
The undisputed facts are as follows: Plaintiff worked full-time
for the Home as a licensed practical nurse from November 1995
until August 8, 1997. Gail Price was director of nursing for the
Home from 1981 to 1998. Lualyce Brown was administrator of the
Home at the time Plaintiff's employment was terminated. Ms. Brown died in 2001. In
1997, Sharon Weger worked for the Home handling workers'
Defendant's attendance policy provides, in pertinent part, as
follows: "Being late or absent may, in the absolute discretion of
management, be cause for discharge. If an employee is absent for
three (3) days without giving notice, he/she will be considered
to have `resigned without notice' and will be removed from the
payroll." (Policy manual, p. 24.) When she began working at the
Home, Plaintiff signed a form acknowledging that she had read and
understood the Home's policy manual.
When Plaintiff began working for the Home in 1995, she was
restricted from lifting over fifteen pounds. She signed a form
titled "Job Description" that stated, "Per Conversation with Gail
[Price], I have limitation of lifting 15# of weight." Defendant
accommodated this restriction.
On May 21, 1997, Plaintiff injured her back while working. On
May 23, 1997, Plaintiff called the office of her primary care
physician, Dr. Kim Fehrenbacher. He told her she could continue
to work the week of May 27 and she should follow up with his
office during the following week if her back did not improve.
(#30, p. 4, Ex. B.) On May 23, Dr. Fehrenbacher faxed a note to
the Home that stated in part, "[Plaintiff] may work this
weekend," and also stated that she should avoid lifting greater
than twenty pounds and should avoid pushing, twisting, pulling,
or straining. (#30, p. 8, Ex. D.)
Following her injury, Plaintiff went to Dr. Fehrenbacher's
office for treatment on a regular basis. On May 27, Dr.
Fehrenbacher's clinical notes indicate that Plaintiff should not
work until June 2. (#30, p. 4, Ex. B.) The same day, the doctor's
office provided a note stating that Plaintiff could not work
until June 2, 1997. (#30, p. 5, Ex. C.) On June 2, Dr.
Fehrenbacher's clinical notes state, "No work until results of
MRI are known and symptomatic improvement." (#30, p. 6, Ex. E.)
On June 9, the clinical notes state that Plaintiff underwent an
MRI and is still having back pain. Dr. Fehrenbacher referred her
to Dr. James Kohlmann for an appointment on June 17. (#30, p. 6,
Ex. E; p. 10, Ex. F.) On June 17, 1997, Dr. Kohlmann issued a report stating that
Plaintiff was capable of returning to work with modified duty.
(Kohlmann report dated June 17, 1997.) On June 23, Dr.
Fehrenbacher's clinical notes state that Plaintiff "[i]s seeing
Dr. Kohlmann who told her she could go back to work. She was
quite surprised and uncomfortable with that as she is still
having pain that awakens her at night. . . . Will try to get her
back to work for at least part time after her next appt. in 2 wks
from this." (#30, p. 7, Ex. E.) In an undated note, Dr.
Fehrenbacher stated that Plaintiff should "continue not working
for 2 more weeks effective until 7/7/97." (#30, p. 11, Ex. G.)
On June 30, 1997, Plaintiff filed a worker's compensation claim
On July 7, Dr. Fehrenbacher's clinical notes state that
Plaintiff "[d]oes not feel she could return to her duties as a
nurse. Does not feel she would be able to sit for extended
periods of time and chart." (#30, p. 7, Ex. E.) He also provided
a note for the Home that stated, "Victoria Reible will be unable
to work until her next appt 7/28/97." (#30, p. 12, Ex. H.)
On each of the above dates (May 27, June 2, June 9, June 23,
and July 7, 1997), Dr. Fehrenbacher provided Plaintiff with a
note stating she should not work until her next appointment.
Plaintiff gave those notes (or copies of them) to the Home.
On July 17, 1997, Dr. David Fletcher performed an independent
evaluation of Plaintiff and issued a report stating that
Plaintiff was capable of returning to work with modified duty.
(Fletcher report dated July 17, 1997.) After the Home received
Dr. Fletcher's report, Sharon Weger sent Plaintiff a letter
asking Plaintiff to return to work with modified duty and to
contact Defendant by July 23, 1997, regarding her work hours.
(Weger letter dated July 18, 1997.) Plaintiff received this
letter. (Reible dep., p. 47.)
On July 23, Dr. Fehrenbacher's clinical notes state that
Plaintiff "called office yest. requesting to be referred to Dr.
James Harms orthopod @ Carle instead of Dr. Kohlmann." (#30, p.
9, Ex. E.) On July 23, 1997, Plaintiff called Gail Price and told her she
had an appointment with Dr. Fehrenbacher on July 28, 1997.
(Reible dep., p. 48; Price dep., p. 57.) Plaintiff testified that
she told Price that she "wasn't able to come back to work and
that [she] was coming in with a note from Dr. Fehrenbacher."
(Reible dep., p. 50.) Price testified that she told Plaintiff to
contact her after the appointment to let her know about the
results of the appointment or to bring her any notes from Dr.
Fehrenbacher. (Price dep., p. 57.)
On July 28, Dr. Fehrenbacher's clinical notes state that
Plaintiff was "feeling better. Would like to return to work." In
addition, the notes state as follows: "[Plaintiff] Did not see
Dr. Kohlmann and today says she would like to postpone seeing Dr.
Harms. . . . [Plaintiff] [h]as seen Dr. Fleisher . . . [and she]
[a]nticipates having functional assessment exam by him on Wed (in
2 days) and returning to work with limited duty then. . . .
Anticipate patient will be returned to work later this week by
Dr. Fleisher as noted above." (#30, p. 9, Ex. E.) Dr.
Fehrenbacher testified that, at the July 28, 1997, appointment,
he did not provide Plaintiff with a note excusing her from work;
he also testified that a work release notice would not have been
consistent with his clinical evaluation as indicated by his
notes. (Fehrenbacher dep., p. 14.)
On July 28, 1997, Plaintiff did not contact Gail Price about
her July 28 doctor visit and Dr. Fehrenbacher's recommendations.
According to Price's contemporaneous notes, Plaintiff did not
contact Price or anyone at the Home on July 29, July 30, or July
31. (Price dep., pp. 30-31.) On July 30, Gail Price called
Plaintiff and left a message requesting information regarding the
outcome of Plaintiff's July 28 appointment with Dr. Fehrenbacher.
In her affidavit, Plaintiff testified that she received the
message. (Reible aff., ¶ 11.)
Plaintiff testifies that, on August 1, she gave a note to the
front desk girl at the Home to be delivered to Gail Price.
(Reible dep., pp. 50-51.) The note was not from Dr. Fehrenbacher;
it was from Plaintiff and it informed Price that Plaintiff had
not been released to return to work. (Reible aff., ¶ 12.) Gail
Price testified that she did not receive any note. (Price dep.,
p. 35.) On August 8, Ms. Brown sent Plaintiff a letter stating as
After several unsuccessful attempts to reach you by
our Gail Price, RN, DON; as of this date, your
position with Odd Fellow-Rebekah Home is being
terminated. Enclosed please find a copy of our ABSENT
WITHOUT GIVING NOTICE Policy (page 24 of employee
policy book). August schedule shows your absent
without notice status on August 1, August 4 and
August 6. At 4:00 p.m. on July 30, 1997 a message was
left on your answering machine by Gail Price, RN, DON
for you to contact her with information of the last
doctor's appointment. To date, no contact has been
made by you. It is also our understanding that you
chose not to attend your functional evaluation on
We ask that you return your time card and keys to the
Harmony Center in the enclosed self-addressed stamped
(Brown letter dated August 8, 1997.)
Gail Price testified that, at the time that the Home discharged
Plaintiff, she understood that Plaintiff had a back injury and
that she would have been able to work with some restrictions on
lifting and bending. (Price dep., p. 47.) Price testified that
Lualyce Brown, the Home's administrator, made the decision to
discharge Plaintiff's employment. (Price dep., pp. 30, 33, 39.)
Price also testified that she would have discussed Plaintiff's
status with Ms. Brown. She testified that she knew that Plaintiff
would be terminated because she had missed three days of assigned
duties. (Price dep., p. 40.) The following colloquy occurred at
Q: Was she terminated because she had filed a
worker's compensation case?
Q. How do you know that?
A. Because I would have had input in that. As far as
her being terminated, we went by the policy, and the
policy says if you miss three days, no call/no show,
you will be terminated.
Q. Okay. But you didn't make that decision to
terminate her. Is that right?
Q. Okay. So how do you know Ms. Brown, what her
decision making was?
A. Because she followed the policies.
(Price dep., pp. 42-43.) Price testified that the Home applied
the no call/no show termination policy across the board. (Price
dep., p. 51.)
On August 11, 1997, Plaintiff "attempted to deliver an off-work
prescription to Defendant" from Dr. Fehrenbacher and was told at
that time that her employment had been terminated. (Reible aff., ¶ 13.) She subsequently received the
August 8, 1997, letter from Ms. Brown.
On August 11, 1997, Dr. Fehrenbacher's clinical notes state
that Plaintiff "[d]eveloped headache and had to cancel her appt.
with Dr. Fleisher. They attemped [(sic)] to reschedule but
cancelled again. Consequently, has not returned to work and
states would need release from me. . . . Refer to Dr. Kelafont
for functional capacity testing and advised regarding returning
to work." (#30, p. 15, Ex. K.) The same day, the doctor's office
wrote a note that stated, "Pt. is to be off work until further
notice." (#30, p. 17, Ex. M.) On August 12, Dr. Fehrenbacher's
notes state, "Received call from Dr. Kelafont today who diagnosed
patient to have sacral iliac problem and is sending her for
physical therapy . . . Believes she may be able to return to
partial duty soon if aggreeable [(sic)] with Odd Fellow Rebekah
Home." (#30, p. 15, Ex. K.)
On September 15, Dr. Fehrenbacher wrote a letter stating as
To Whom It May Concern:
Vicky Reible has not ben [(sic)] released to return
to work by me or Occupational Health physician at
Sarah Bush, Dr. Kelafont. She has been referred back
to Dr. Harms and has an appointment at the earliest
available date on 10/20/97 and should await his
advice before release for work or further treatment
or studies as suggested by him.
(#30, p. 18, Ex. N.)
II. Standard of Review
In her memorandum, Plaintiff has articulated the incorrect
standard for a summary judgment motion. See Plaintiff's
Response to Motion for Summary Judgment, #30, p. 7, ¶ 3, citing
Miller v. J.M. Jones Co., 587 N.E.2d 654, 658 (Ill.App.Ct.
1992) (articulating the standard for a motion to dismiss).
Summary judgment is granted "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 a
judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). In ruling on a motion for summary
judgment, the Court must decide, based on the evidence of record,
whether there is any material dispute of fact that requires a
trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th
Cir. 1994). The party seeking summary judgment bears the initial
burden of showing that no such issue of material fact exists.
Celotex, 477 U.S. at 323.
The Court must draw all inferences in a light most favorable to
the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving
party may not rest upon mere allegations in the pleadings or upon
conclusory statements in affidavits; rather, she must go beyond
the pleadings and support her contentions with proper documentary
evidence. Celotex, 477 U.S. at 322-23. A scintilla of evidence
in support of the nonmovant's position is not sufficient to
oppose successfully a summary judgment motion; "there must be
evidence on which the jury could reasonably find for the
[nonmovant]." Anderson, 477 U.S. at 250. The plain language of
Rule 56(c) mandates the entry of summary judgment against a party
who fails 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. Id. "In such a situation there can be `no
genuine issue as to any material fact,' since a complete failure
of proof concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial." Id.
Defendant argues that the Court should grant summary judgment
in its favor on the retaliation claim and the ADA claim(s).
Plaintiff's argument in response consists of seven numbered
paragraphs, devoid of any reference to evidence. Three paragraphs
cite case law and one of those articulates the standard for a
motion to dismiss which is irrelevant at this stage of the
litigation. The remaining four paragraphs make conclusory
statements that "there is a genuine issue of material fact"
regarding various issues. (#30, ¶¶ 4-7.) Pursuant to Rule 56(b),
when a properly supported motion for summary judgment is made,
the adverse party must set forth specific facts showing that a
genuine issue exists as to any material fact and that the moving
party is not entitled to judgment as a matter of law. FED. R.
CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). With that standard in mind, the
Court considers the parties' memoranda.
A. The Retaliation Claim (Count I)
Regarding Count I, Defendant argues that the Court should grant
summary judgment in its favor because Plaintiff failed to present
evidence that Defendant discriminated against her because she
filed a workers' compensation claim. Defendant has stated that it
discharged Plaintiff for violating its no call/no show policy by
failing to return to work after Dr. Fletcher and Dr. Kohlmann
reported that she could return to work with modified duties.
To establish a prima facie workers' compensation retaliatory
discharge claim, a plaintiff must show the following: (1) She
worked for defendant before her injury; (2) she exercised a right
provided by the Workers' Compensation Act (820 ILCS 305/1 et
seq.); and (3) her discharge was causally connected to the
filing of the workers' compensation claim. Sweat v. Peabody Coal
Co., 94 F.3d 301, 304 (7th Cir. 1996). Defendant does not
dispute that Plaintiff has satisfied the first two elements, so
the Court need only focus on the third element whether
Plaintiff has shown the necessary causal connection.
The element of causation is not met if the employer has a valid
basis, which is not pretextual, for discharging the employee.
Meister v. Georgia-Pacific Corp., 43 F.3d 1154, 1160 (7th Cir.
1995). Thus, once the employer produces a valid reason for
discharge, the employee must show that the purportedly valid
reason was pretextual. Id. In order to establish pretext, the
plaintiff can present evidence that shows either that the
employer's proffered reason has no basis in fact or that it did
not honestly believe that it fired the plaintiff for its
proffered reason. Fernbach v. Dominick's Finer Foods,
936 F. Supp. 467, 472 (N.D. Ill. 1996).
As noted above, Defendant has stated that it discharged
Plaintiff for violating its no call/no show policy. In response,
Plaintiff states that a jury could find that Defendant's actions
of terminating her employment were pretextual and in retaliation
for Plaintiff's filing a workers' compensation claim and that
Defendant discharged her because of her disability. Plaintiff
also states that a genuine issue of material fact exists regarding the
validity of her termination. She provides little in the way of
evidence or argument to support her conclusions.
Plaintiff relies on Defendant's statement in Ms. Brown's letter
to establish a causal connection between her worker's
compensation claim and her discharge. That letter states that
Plaintiff had been discharged as a result of her violation of the
no call/no show policy. The letter also states, "[i]t is also our
understanding that you chose not to attend your functional
evaluation on July 30." (Brown letter dated August 8, 1997.) The
inclusion of this sentence in the same paragraph as the
explanation of the no call/no show policy is not enough to
establish a causal connection between Plaintiff's filing of a
workers' compensation claim (rather than failing to appear at a
medical evaluation) and her discharge.
Ms. Brown's letter clearly indicates that Defendant terminated
Plaintiff's employment because she violated the no call/no show
policy. "[T]he issue of pretext does not address the correctness
or desirability of reasons offered for employment decisions.
Rather, it addresses the issue of whether the employer honestly
believes in the reasons it offers." McCoy v. WGN Cont'l Broad.
Co., 957 F.2d 368, 373 (7th Cir. 1992). Plaintiff has presented
no evidence that supports a conclusion that Ms. Brown did not
honestly believe that Plaintiff had violated the no call/no show
policy or that Defendant's proffered reason for discharging her
was a lie or a pretext for retaliation. As a result, Plaintiff
has failed to provide evidence, argument, or authority connecting
her discharge with her filing of a worker's compensation claim.
Therefore, the Court grants Defendant's motion for summary
judgment as to Plaintiff's retaliatory discharge claim.
B. The ADA Claim(s) (Count II)
The ADA prohibits discrimination against, and requires an
employer to reasonably accommodate the known limitations of, an
otherwise qualified employee with a disability.
42 U.S.C. §§ 12112(a), (b). Determining whether the employee is a "qualified
employee with a disability" is a threshold issue for all ADA
claims. Leisen v. City of Shelbyville, 153 F.3d 805, 807 (7th
Cir. 1998). Once a plaintiff has established that she is a
qualified individual with a disability, she may show that her employer discriminated against
her in either of two ways: by presenting evidence of disparate
treatment or by showing a failure to reasonably accommodate.
Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir.
2001). Where these two claims diverge is in the method of proof.
Disparate treatment can be shown either with direct evidence or
indirectly using the McDonnell-Douglas burden-shifting
approach. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). However, the McDonnell Douglas approach is not an
appropriate method of proving a reasonable accommodation claim;
instead, its prima facie case simply mirrors the statutory
elements. See Bultemeyer v. Fort Wayne Cmty. Sch.,
100 F.3d 1281, 1283 (7th Cir. 1996).
Plaintiff seems to be claiming that Defendant's termination of
her employment constitutes both disparate treatment and a failure
to accommodate under the ADA. That is, Defendant discharged her
because of her alleged disability and also failed to provide her
with the reasonable accommodation of allowing her adequate time
Defendant argues that the Court should grant summary judgment
in its favor because (1) as a threshold matter, Plaintiff failed
to establish that she was a qualified person with a disability.
Regarding the discriminatory discharge claim, Defendant contends
that Plaintiff failed to establish (2) that Defendant treated her
differently because of her disability, or (3) that Defendant's
proffered reason for discharging Plaintiff was pretext. Regarding
the reasonable accommodation claim, Defendant contends that (4)
Plaintiff failed to establish that she had requested a reasonable
accommodation, or that (5) Defendant refused to provide a
reasonable accommodation. In response, Plaintiff states that genuine issues of material
fact exist regarding whether Defendant perceived Plaintiff as
disabled, whether Plaintiff was substantially limited in the
major life activity of working, and whether Defendant provided
Plaintiff with the reasonable accommodation of allowing her time
to convalesce from her back injury. Plaintiff has provided some
evidence in the form of her doctor's clinical notes, but no
argument or authority to support her conclusory statements. A
skeletal argument, unsupported by relevant authority or
reasoning, is merely an assertion which does not sufficiently
raise the issue to merit the court's consideration. See United
States v. Giovannetti, 919 F.2d 1223, 1230 (7th Cir. 1990) ("A
litigant who fails to press a point by supporting it with
pertinent authority or by showing why it is a good point despite
a lack of authority . . . forfeits the point. We will not do his
research for him.").
2. Whether Plaintiff was a Qualified Individual with a
The Court notes that, when Plaintiff was first hired, Defendant
knew she was unable to lift more than fifteen pounds, and they
accommodated that restriction. Neither party has addressed this
restriction and the Court assumes that it is not an issue in this
Determining whether an employee is protected by the ADA is a
threshold issue that requires an affirmative response to two
questions. First, does the employee have a disability as that
term is defined in the ADA? See 42 U.S.C. § 12102(2); Leisen,
153 F.3d at 807. Second, is the employee an "otherwise qualified
An employee may establish that she has a disability by showing
that she (1) has a physical or mental impairment that
substantially limits one or more of her major life activities;
(2) she has a record of such an impairment; or (3) she is
regarded as having such an impairment. See 42 U.S.C. § 12102.
The employee bears the burden of proving that she is disabled.
DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995).
"Major life activities" are functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. § 1630.2(i).
Furthermore, a person is "substantially limited" if she is
"[u]nable to perform a major life activity" or "[s]ignificantly
restricted as to the condition, manner or duration under which
[she] can perform a particular major life activity as compared to . . . the average person." 29 C.F.R. § 1630.2(j)(1). When
determining whether an impairment is substantial, courts should
consider the nature and severity of the impairment, its duration
or expected duration, and its permanence or long-term impact.
Hamm v. Runyon, 51 F.3d 721, 725 (7th Cir. 1995).
A "qualified individual" is one "who satisfies the requisite
skill, experience, education and other job-related requirements
of the employment position such individual holds or desires, and
who, with or without reasonable accommodation, can perform the
essential functions of such position." 29 C.F.R. § 1630.2(m).
a. "A Qualified Individual" . . .
Defendant argues that Plaintiff cannot show that she could
perform the functions of the job with a reasonable accommodation.
The plaintiff bears the burden of coming forward with evidence
that tends to show that she could, with or without reasonable
accommodation, perform the essential functions of her job.
Weigel v. Target Stores, 122 F.3d 461, 467-68 (7th Cir. 1997).
"[A]bsent some such affirmative showing of the plaintiff's
ability to perform the essential functions of the position, there
will be no genuine issue of material fact as to whether the
plaintiff is a `qualified individual' and the employer will be
entitled to judgment as a matter of law." Id.
The medical evidence before the Court includes reports from
Drs. Kohlmann and Fletcher that Plaintiff was able to return to
work with modified duty, and Dr. Fehrenbacher's testimony that he
did not give Plaintiff a work-release note at her August 1, 1997,
appointment and that, based on his clinical notes, it would not
have been appropriate for him to do so. Thus, a reasonable jury
could conclude that Plaintiff was able to work (with modified
duty) at the time of her discharge and, therefore, that Plaintiff
was a qualified individual. b. . . . "With a Disability"
Defendant next argues that Plaintiff was not disabled at the
time of her discharge. Defendant bases this argument on (1)
reports by Drs. Kohlmann and Fletcher on June 17 and July 17,
1997, respectively, that Plaintiff was able to return to work
with modified duty, and (2) the lack of a work-release note from
Dr. Fehrenbacher after Plaintiff's July 28, 1997, appointment.
The only information that Defendant arguably had between July 28
and August 8, 1997, is a note from Plaintiff dated August 1,
1997, in which she said that Dr. Fehrenbacher told her she may be
released to work later. Plaintiff's note to Gail Price is not the
same as a doctor's work-release note or report regarding
Plaintiff's inability to work. Thus, between July 7 and August
15, 1997, Defendant had no direct information from Dr.
Fehrenbacher regarding Plaintiff's condition. In fact, Dr.
Fehrenbacher stated that he would not have provided her with a
work-release note at that time based on his evaluation at that
appointment. (Fehrenbacher dep., p. 14.)
Defendant also relies on case law, including Dupre v. Charter
Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 614
(5th Cir. 2001) (stating that a back condition that prevented the
employee from sitting or standing in one place for more than one
hour was not considered a disability under the ADA), and
Mickelsen v. Albertson's, Inc., 226 F. Supp. 2d 1238, 1250 (D.
Ida. 2002) (stating that an employee who was restricted to
lifting twenty-five pounds was not substantially limited in a
major life activity and therefore had failed to show that she was
not able to work in a broad class of jobs or even her job with
Plaintiff has not expressly indicated which of her major life
activities was substantially limited. Based on her statement that
she was "unable to work" because of her back injury, the Court
assumes that she is claiming that she was limited in the major
life activity of "working."
Regarding the question of whether Plaintiff's ability to work
was "substantially limited," Plaintiff has provided evidence in
the form of Dr. Fehrenbacher's clinical notes and her testimony
that she was not worked since May 1997. In her argument,
Plaintiff states in conclusory fashion that she was
"substantially limited, temporarily, in her major life activity
of working, while restricted from working by her primary care physician, Dr.
Fehrenbacher" (Plaintiff's Additional Material Facts, #30, ¶ 8),
and that "[t]here is a genuine issue of material fact regarding
whether or not the Plaintiff was substantially limited in the
major life activity of working" (#30, p. 7, ¶ 5).
Plaintiff bears the burden of proving that she was disabled.
DeLuca, 53 F.3d at 797. To determine whether Plaintiff's
impairment substantially limits a major life activity, the Court
considers the nature and severity of the impairment, its duration
or expected duration, and its permanence or long-term impact.
Hamm, 51 F.3d at 725. Here, Drs. Kohlmann and Fletcher both
reported that Plaintiff was able to return to work with modified
duty. In addition, Dr. Fehrenbacher's clinical notes for July 28,
1997, and his testimony regarding those notes, show that
Plaintiff's impairment did not substantially limit her ability to
work at the time of her discharge: Dr. Fehrenbacher expected
Plaintiff to be back to work by the end of the week. Furthermore,
Dr. Fehrenbacher's previous clinical notes indicate that
Plaintiff's back had been gradually improving. Based on this
evidence, and in the absence of any authority or significant
argument by Plaintiff, the Court concludes that Plaintiff has
failed to show that she was substantially limited in the major
life activity of working at the time of her discharge or to raise
a factual issue regarding this issue. Because Plaintiff has
failed to show that she was "substantially limited" in her
ability to work, the Court concludes that she was not "disabled"
for purposes of ADA protection. Accordingly, the Court grants
summary judgment in favor of Defendant Plaintiff's ADA claims.
For the reasons stated above, the Court GRANTS Defendant's
Motion for Summary Judgment (#27).
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