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Delgado v. Certified Grocers Midwest

August 16, 2007

RICARDO DELGADO, PLAINTIFF,
v.
CERTIFIED GROCERS MIDWEST, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the Court on Defendant Certified Grocers Midwest's ("Certified Grocers") motion for summary judgment. For the following reasons, summary judgment is granted in favor of Certified Grocers.

BACKGROUND

In assembling the recitation of material facts relevant to our decision, we have disregarded any alleged facts or purported denials that are unsupported by the record or do not comply with Local Rule 56.1. See Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997).

Plaintiff Ricardo Delgado was hired by Certified Grocers in the summer of 2000 as a temporary employee. By August, Certified Grocers had offered him a regular fulltime position as a Warehouse Picker in the Perishables Department, a union position that was governed by a collective bargaining contract. In this position, Delgado was responsible for filling orders in the dairy, freezer, produce, and meat sections of the department, all of which are refrigerated and/or cold. In order to fill orders, Delgado had to lift items weighing between 1 and 100 pounds, from bins anywhere from 5 inches to 6 feet off the floor, and then place those items on a pallet and shrink-wrap the pallet.

Delgado first injured his shoulder at work on November 1, 2001. Certified provided Delgado with an eight-week leave of absence and two months of light duty upon his return. Delgado was told by his union stewards that the collective bargaining agreement provided for only two months of light duty, after which an employee would be sent home until he received a full release. Certified provided Delgado with another leave of absence from February 13 to October 13, 2002, during which Delgado received benefits, health insurance, and temporary total disability benefits. Delgado returned to work on full duty with no restrictions on October 14, 2002.

On June 11, 2003, Delgado re-injured his shoulder but remained on full duty without restrictions until August 21, 2003, when his doctor placed him on light duty with certain lifting restrictions. Certified provided light duty work for Delgado within his restrictions through October 20, 2003, amounting to more than eight weeks of light duty.

Delgado had surgery on his shoulder on January 26, 2004, following which Certified provided him with a leave of absence until May 18, 2004, along with benefits, health insurance, and temporary total disability benefits. On May 18, 2004, Delgado returned to work with restrictions, and Certified Grocers provided him with light duty consistent with those restrictions. Ultimately, on October 8, 2004, Delgado's doctor determined he had reached "maximum medical improvement" and placed him on permanent restrictions consisting of no overhead lifting and no frontal plane lifting over 50 pounds. Certified provided him with light duty consistent with his restrictions through November 17, 2004. In November, Delgado noticed numbness, tingling, and swelling in his arm. His doctor diagnosed him with carpal tunnel syndrome unrelated to his shoulder injury and placed him on a leave of absence. Delgado saw several other doctors in February and April 2005, who advised him not to lift more than 50 pounds, lift overhead, carry more than 25 pounds, or work in refrigerated environments. These restrictions have never been lifted.

Delgado attempted to return to work in April 2005, but because of his permanent medical restrictions, Certified Grocers determined that Delgado was not eligible to continue working in his bargaining unit job and sent him home on April 15, 2005. Once Certified Grocers determined that Delgado could no longer perform the job of Case 1:06-cv-02107 Document 52 Filed 08/16/2007 Page 4 of 18 Warehouse Picker, they provided him with vocational rehabilitation. Plaintiff never requested an accommodation, filed a grievance, or applied for any other openings at Certified Grocers.

Since his termination, Delgado has applied for jobs and attended job fairs. He has been offered several jobs but has not accepted those offers. From March 30 to May 19, 2006, Delgado worked for Adecco as a mover. He quit this job because he claims that Adecco required him to do work outside of his lifting restrictions and did not pay him in a timely fashion. Delgado filed a charge with the Illinois Department of Labor and was ultimately able to recover his back pay. Delgado claims that it is very difficult for him to find jobs on account of his 6th grade education; his job experience, which is limited to jobs requiring lifting; and his medical restrictions. However, he has been offered several jobs and has not accepted those jobs. All were either within his work restrictions or he did not inquire as to what the lifting and carrying requirements of the job would be.

Delgado is currently unemployed, attending school in order to obtain his GED, and searching for jobs. He lives with his wife and two children, one of whom is a minor. He cares for his minor child, getting him ready for school, preparing lunch, overseeing his activities and attending his basketball games and other events. He can take care of himself and walks to keep in shape. In addition, he does household chores such as cleaning the table, loading the dishwasher, driving his children places, and Case 1:06-cv-02107 Document 52 Filed 08/16/2007 Page 5 of 18 playing with his children. Occasionally, he does the grocery shopping. He carries a backpack filled with schoolbooks to school but does not know if the bag weighs more than 25 pounds. His injury prevents him from doing maintenance work on the rental properties that he owns.*fn1

Delgado filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on December 29, 2005*fn2 , and upon receiving his right to sue letter, brought this suit, alleging that he was terminated on account of his disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"). At the close of discovery, Certified Grocers filed the instant summary judgment motion.

LEGAL STANDARD

Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, 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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record, at which time the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); rather, "[a] genuine issue exists when the evidence is such that a reasonable jury could find for the ...


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