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Delgado v. Sears Holdings Corp.

June 5, 2008


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Before the Court is a Motion for Summary Judgment brought by the Defendant, Sears Holdings Corporation ("Sears") against the Plaintiff, Herbert Delgado ("Delgado"). Delgado worked for Sears as a full-time sales representative for over four years. He was, however, absent for over 150 consecutive days each year for the years 2001 through 2005. In 2005, after Delgado's fifth extended leave of absence, Sears did not offer Delgado his full-time position back. This suit followed, and contains allegations that Sears violated the Americans with Disabilities Act ("ADA") when it decided to hire another employee in Delgado's stead. For the reasons set forth below, Sears' Motion for Summary Judgment is granted.


As required for purposes of summary judgment, the facts here are presented in the light most favorable to the non-moving party, Delgado.*fn2

A. Plaintiff's Employment with Sears

Delgado is a 33 year old individual with a seizure disorder who was hired as a commissioned sales representative in Sears' Vernon Hills, Illinois store on May 27, 1997.*fn3 Delgado typically worked from 32 to 40 hours per week and was responsible for selling electronics in the store's "Brand Central" electronic's department.*fn4 Beginning in 2000, Delgado reported to Assistant Store Manager John Andrules ("Andrules").*fn5 Andrules was aware of Delgado's seizure disorder and offered Delgado the use of his office should Delgado need to rest because of his condition.*fn6

It is undisputed that Delgado took leaves of absence from Sears for his seizure disorder in 2001, 2002, 2003, 2004, and 2005, each of which lasted more than 150 days.*fn7 Although Delgado always provided written notices of his indefinite absences and doctor's notes clearing him to return to work, these notes simply stated that Delgado could not work until further notice and, thus, Andrules had no way of predicting when Delgado would return from one of his disability leaves.*fn8 The doctor's notes did not state why Delgado had to be absent from work for so long or how the absences were related to his seizure disorder.*fn9 When Delgado was on disability leave, Andrules had to cover Delgado's absences by scheduling other staff to work.*fn10

In 2001, Delgado was off work for over six months. Sears placed Delgado back in his regular job upon his return.*fn11 In 2002, Delgado was again off work for over six months. Upon Delgado's return, Sears accommodated his 32-hour-per-week work restriction and was aware that Delgado's doctor restricted him from driving.*fn12 Sometime near Delgado's 2002 return to work, Andrules phoned Sears' corporate human resources department ("HR") to inquire if he had to return Delgado to his same job upon return from his disability leave and to advise them that Delgado had seizures occasionally.*fn13 In 2003, Delgado was off nearly eight months. Sears placed Delgado in his regular job and accommodated his 32-hour-per-week work restriction upon Delgado's return.*fn14

In 2004, Delgado was off work for over six months and again Sears placed Delgado in his regular job upon his return.*fn15 In late April of 2005, Delgado took two weeks of unpaid leave after Andrules had the following discussion with Delgado in order to anticipate Sears' upcoming scheduling needs: "[a]re you going to be okay this year? Are you going to be leaving? Because I need you. We don't have too many people on the floor."*fn16 The record is silent with respect to Delgado's reaction to this conversation, but Delgado then took a two week leave to get checked out by his doctors.*fn17 Upon Delgado's return from this two week absence, Sears placed Delgado back in his regular job and accommodated his restrictions on driving, operating a forklift, lifting more than 25-pounds, and working more than 32 hours per week.*fn18 Delgado was off work for a second leave of absence that year, beginning on June 26, 2005.*fn19 Two months into this period of leave, Andrules hired a new employee as a consultative sales associate for the Brand Central department.*fn20 Sears hired this new employee because Andrules anticipated that the level of service the Brand Central staff could provide to customers would, in addition to the strain caused by Delgado's absence, be further strained by the completion of a 2,500 square foot addition to Brand Central.*fn21

Then, nearly four months into Delgado's leave, on October 8, 2005, Delgado sent Andrules a doctor's note releasing him to return to work later that month on October 17, 2005, and imposing restrictions from working more than 32 hours per week, lifting more than 10 pounds, climbing a ladder higher than 10 feet, and driving a forklift.*fn22 On October 10, 2005, Andrules called a Sears HR consultant and confirmed that Delgado had exhausted his leave.*fn23 Subsequently, although Delgado disputes it, Andrules and the Vernon Hills HR manager determined that there were no full time positions available at the Vernon Hills store but that a part time position was available.*fn24

Although part-time associates typically work 25 hours or less per week, Delgado was offered a less time-consuming position at 9 hours a week.*fn25 On October 18, 2005, counsel for Delgado wrote Sears a response to the part-time offer, expressing Delgado's desire to return to his 32-hour-per-week employment status.*fn26

Subsequent to its determination that Delgado had exhausted his leave, Sears placed Delgado on another personal leave of absence, effective September 18, 2005, for a period of up to 45 days.*fn27

Sears further extended Delgado's personal leave for another period up to 45 days by letter dated November 9, 2005.*fn28 Later that year, Sears made the decision that it could no longer retain Delgado.*fn29 Two years later, though he had not worked at Sears during the interim, Delgado's employment was officially terminated on July 31, 2007.*fn30

Subsequent to his employment with Sears, Delgado applied for employment at a wide range of other businesses, including banks, car dealers, car repair services, furniture stores, golf courses, county health and clerk's offices, grocery stores, real estate offices, restaurants, insurance companies, the post office, Lamb's Farm, Goodwill, and warehouses.*fn31 To date, Delgado secured no other employment except as a furniture sales representative for Leath Furniture, where he worked 32-38 hours per week from March 2006 until the store closed in May 2007.*fn32

B. Plaintiff's Physical Health

As noted above, the parties agree that Delgado suffered from seizures and they agree about the way in which these seizures presented themselves during the relevant period. Delgado had seizures every day in 2002 or 2003, and now experiences seizures with a frequency somewhere between twice a month and once every two months.*fn33 Eighty-five percent of Delgado's seizures occur at night and Delgado typically has a 10 second advance warning before the onset of a seizure.*fn34 The seizures last 10 to 25 seconds.*fn35 After a seizure, it takes Delgado 40 seconds to return from unconsciousness to a state where he can communicate verbally, but he has a severe headache that remains for 15 to 25 minutes and sometimes causes an additional seizure.*fn36

With respect to daily activities, Delgado is limited in taking out the garbage if it is too heavy, and dusting if it takes long enough for him to tire; he cannot run after his kids, play sports, go to the beach, or work in the yard because these activities could cause him to sweat and trigger a seizure.*fn37

Delgado is restricted from being outside for more than an hour when the weather is above 90 degrees and humid.*fn38 He is also restricted from driving, and lifting ...

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