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Ware v. Jewel Food Stores

February 20, 2007


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Tavarius Ware filed a three-count amended complaint against defendant Jewel Food Stores, Inc. ("Jewel") under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), alleging: failure to accommodate (Count I); unlawful termination based on disability (Count II); and unlawful termination based on plaintiff's history of disability (Count III). Defendant has moved for summary judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons set forth below, defendant's motion is granted.



Plaintiff began working for defendant on July 17, 1995, as an assembler (order selector) in defendant's Melrose Park, Illinois, distribution center. At the beginning of his employment, all assemblers were members of the Chicago Truck Drivers, Helpers and Warehouse Workers Union. The terms of assemblers' employment were governed by a collective bargaining agreement ("CBA") between defendant and the union.*fn2 Plaintiff's position required him to select boxes of merchandise, which weighed an average of twenty-five pounds each, from storage shelves and stack those boxes on pallets. Plaintiff would then use a motorized pallet truck to move the boxes on pallets to the loading dock for shipment to various retail outlets in the Chicago area.

When plaintiff began working for defendant as an assembler, the assignments for assemblers were produced by a computerized system, "GAGNON," which also provided time limits within which an assembler was required to complete each job. These time limits varied based on the size of the order, the size of the store placing the order, and whether the items in the order were "on sale." Assemblers obtained their assignments from an allocation office. Once an assembler finished his assignment, he would return to the office for another. According to plaintiff, when he first began working for defendant, the assignments were generally given out in the order issued by the computer system, but if an assembler had just finished a large assignment, the allocation clerk would next assign him or her a lighter order.

Defendant later changed its allocation practice and generally required assemblers to take assignments in the order produced by the computer system, although allocation clerks did occasionally make exceptions for large or heavy orders. On one occasion, a supervisor named Larry Magner gave plaintiff a lighter assignment, rather than the assignment given by the computer system. Plaintiff maintains that he was generally able to finish his assignments before the time limit had run, giving him a brief rest before he began his next assignment. At the end of the work day, if an assembler had only a short time left to complete his shift, the allocation clerk on duty would find a "short assignment" so that the assembler could complete an order without working overtime, which required the allocation clerk to give assignments out of the order generated by the computer system.

In 1995, defendant converted from the "GAGNON" system to the "DALLAS" warehouse management system, which configured pallets differently. This system required assemblers to work throughout the warehouse, rather than in only one section. According to defendant, assignments were distributed to assemblers in the order printed by the "DALLAS" system, with no exceptions. In 2001, defendant converted the warehouse to a conveyer belt system. Defendant assigned assemblers to work on the conveyer belt system based on seniority. Plaintiff worked on the system five to ten times.

Plaintiff's Injuries

On January 24, 1997, plaintiff injured his back while lifting a case of bleach in defendant's warehouse, and he was taken by ambulance to the emergency room. Plaintiff submitted to defendant a report from the hospital that described his condition as "lumbar strain" and prohibited him from lifting more than one to two pounds. Plaintiff also gave defendant two additional notes from a doctor indicating that he had injured his back and could not work. The injury caused acute pain in plaintiff's lower back, which made him unable to bend, walk, sit, or stand. After treatment and rest, plaintiff returned to work on February 18, 1997 with no limitations to perform his daily activities. On April 16, 1998, plaintiff again injured his lower back while moving furniture at home. Plaintiff submitted a disability absence report to defendant. Again, plaintiff was unable to bend, walk, sit, or stand without severe pain; with treatment and rest, he was able to resume his activities.

On August 5, 1998, plaintiff injured his back while performing work at defendant's warehouse. Plaintiff was taken by ambulance to the emergency room. He attempted to return to work on two occasions, but he was unable to work for more than two days before his back pain forced him to stop. Plaintiff then underwent an MRI, which revealed a herniation of lumbar vertebrae. His physician told him that only surgery could correct his condition, but plaintiff instead chose epidural cortisone injections and physical therapy. Plaintiff's physician informed him that continued heavy lifting would aggravate his back injury until he was incapacitated. Defendant required plaintiff to obtain a second diagnosis by a doctor of its choosing. On October 28, 1998, plaintiff was examined by Dr. Theodore Suchy, D.O., who reported to defendant that plaintiff's MRI revealed a herniated disk and that plaintiff's August 5 lifting injury was the cause of his lumbar strain. He told defendant that plaintiff may have "reoccurrences of the lumbar myositis [inflammation]," but that plaintiff could return to work and had reached "maximal medical improvement." Plaintiff's own physician recommended against his return to work, and plaintiff did not report to defendant's warehouse. Defendant discharged plaintiff, but reinstated him. Plaintiff submitted an Employee Accident Statement to defendant concerning the August 5, 1998 back injury. Plaintiff also submitted disability absence reports and filed a claim for worker's compensation benefits, which he settled with defendant.

The Settlement Contract states that plaintiff suffered a herniated disk and "7% loss of man as a whole."*fn3 Plaintiff did not return to work until December 7, 1998.

On January 22, 2000, plaintiff suffered a non-work-related lumbar strain. Plaintiff submitted a disability absence report and notes from his physician indicating that plaintiff had a "herniated lumbar disk now with sciatica of right leg." According to plaintiff, he had acute pain in his lower back and could not bend, walk, sit, or stand. Once again, plaintiff recovered his ability to perform these activities after treatment and rest. He returned to work on February 21, 2000.

On July 16, 2000, plaintiff again suffered a non-work-related back injury. He submitted disability absence reports indicating that he had "low back strain," and he provided a note from his physician and a Report of Attending Physician stating that he had back strain with sciatica and could not do any carrying, bending, or lifting. Plaintiff was gradually able to resume these activities after treatment and rest, but he experienced problems with repetitive heavy lifting. Plaintiff was on medical leave from July 17, 2000 to August 7, 2000.

On September 20, 2000, plaintiff experienced sharp pain in his back while on the job. Plaintiff was taken by ambulance to the emergency room, where a CAT scan revealed a "chronic appearing L4-5 disc herniation." A medical report submitted to Kemper Insurance, defendant's third-party administrator for work-related injuries, stated that a bone scan showed inflammation of plaintiff's tibia. Reports from plaintiff's doctor stated that he questioned whether plaintiff's job duties were "too much of a strain on his lower back and knees" and that plaintiff "continue[d] to have a herniated lumbar disc which could at any time become worse." Another MRI showed plaintiff's disc hernation, and an attached report stated that "there may be nerve impingement on the transversing S1 nerve root, especially on the right side." Plaintiff submitted numerous documents to defendant concerning the September 20 injury. Plaintiff then filed a worker's compensation claim, which he settled with defendant. According to plaintiff, after the September 20 injury, he could not bend, walk, sit, stand, or engage in sexual relations. He regained his ability to engage in these activities with treatment and rest, but only with permanent limitations. Plaintiff returned to work on December 19, 2000.

Plaintiff was on medical leave from March 1, 2001, to May 1, 2001, due to a work-related knee injury. Plaintiff's doctor stated that he could return ...

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