The opinion of the court was delivered by: Virginia M. Kendall, United States District Judge
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff the United States Equal Opportunity Employment Commission ("EEOC") filed suit against Defendant Cast Products, Inc. ("Cast") claiming that Cast discriminated against Plaintiff-Intervenor Efrain Ortega ("Ortega") on the basis of his disability in violation of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. Specifically, the EEOC claims that Cast failed to provide reasonable accommodations for Ortega's diabetes and that Cast terminated Ortega because of his diabetes. Pursuant to Fed. R. Civ. P. 56, Cast has moved for summary judgment. For the reasons stated, Cast's Motion for Summary Judgment is granted in part and denied in part. With respect to the claim for failure to accommodate, the motion is denied. With respect to the claim for discriminatory termination, the motion is granted.
STATEMENT OF UNDISPUTED FACTS
Cast employed Ortega as a die cast machine operator beginning in 1988, where he used a die cast machine to fabricate various parts. (Pl. 56.1 Resp. ¶ 1; Def. 56.1 Resp. ¶ 6.)*fn1 To perform his job, Ortega would place a piece of metal into the die cast machine, allow the machine to shape the metal into a part, and then remove the finished product from the machine. (Pl. 56.1 Resp. ¶ 13.) Ortega held that job until Cast terminated his employment on March 8, 2006. (Pl. 56.1 Resp. ¶¶ 1, 3.) On July 21, 2003, Ortega learned that he had diabetes. (Pl. 56.1 Resp. ¶ 7.) At that time, his doctor sent a note to Cast which indicated that Ortega may require accommodations for his diabetes. (Pl. 56.1 Resp. ¶ 9.) Starting in the winter months of 2004, as a result of his diabetes, Ortega had to urinate frequently-as frequently as once every fifteen minutes. (Def. 56.1 Resp. ¶¶ 9, 10; Pl. 56.1 Resp. ¶ 11.)*fn2 Depending on the level of his blood sugar, as little as two or three minutes would pass from the time that Ortega first felt the urge to urinate and the time that he actually had to relieve himself to avoid involuntary urination. (Def. 56.1 Resp. ¶ 11.) On January 12, 2005, Ortega gave Cathy Haener ("Haener"), the head of Cast's Human Resources Department, a note from his doctor indicating that Ortega could not work overtime hours. (Pl. 56.1 Resp. ¶¶ 4, 10.) Cast honored the doctor's request and did not require Ortega to work overtime hours after it received the note. (Pl. 56.1 Resp. ¶ 59.) The note did not refer to diabetes or frequent urination. (Pl. 56.1 Resp. ¶ 10.) As a result of his diabetes, Ortega had to get up approximately four or fives times each night to urinate. (Def. 56.1 Resp. ¶ 28.) When driving his car, if Ortega felt the need to urinate, he would pull over to the side of the road and urinate into a cup that he would empty when he returned home. (Def. 56.1 Resp. ¶ 29.) Because of his frequent urination, Ortega would not drive more than thirty minutes at a time or take public transportation. (Id.; Def. 56.1 Resp. ¶ 30.) The frequent urination also prevented Ortega from serving on a jury, attending concerts and attending his daughter's school activities. (Def. 56.1 Resp. ¶ 32.)
After developing the symptom of frequent urination, Ortega involuntarily urinated on himself while he was at work on two separate occasions. (Def. 56.1 Resp. ¶ 12.) To avoid embarrassment, he brought a cup to work so he could relieve himself near his work station in case he could not make it to the restroom before urinating involuntarily. (Id.) For approximately one year, Ortega emptied the urine from his cup into a drain on the factory floor about four or five times each day. (Pl. 56.1 Resp. ¶ 26; Def. 56.1 Resp. ¶ 18.) He never considered wearing a protective undergarment or "adult diaper" while he was at work. (Pl. 56.1 Resp. ¶ 16.) During this time, no supervisor at Cast required Ortega to ask for permission prior to using the restroom or told him that he could not leave his work station to use the restroom. (Pl. 56.1 Resp. ¶ 37.) Before his termination on March 8, 2006, Ortega had not spoken with Haener about his frequent urination or asked her for an accommodation, such as relocation to a work station closer to a restroom. (Pl. 56.1 Resp. ¶¶ 18, 32, 34.) Nonetheless, before his termination, no one at Cast expressed dissatisfaction with Ortega's level of productivity. (Pl. 56.1 Resp. ¶ 37.)
On March 8, 2006, Jose Ortiz ("Ortiz"), Ortega's supervisor, noticed Ortega supporting himself with his left arm against his die cast machine, looking around the surrounding factory area. (Pl. 56.1 Resp. ¶¶ 6, 28.) Ortiz then saw Ortega expose his penis and urinate near his work station. (Id.) After observing Ortega urinate, Ortiz reported the incident to Haener. (Pl. 56.1 Resp. ¶ 31.) Haener then informed Operations Manager Jeff Adams ("Adams") of the allegations against Ortega. (Def. 56.1 Resp. ¶ 35.) Haener and Adams determined that Ortega should be fired if he actually urinated while on the factory floor. (Id.; Haener Dep. at 101:9-15.) Later that day, Haener held a meeting with Ortiz and Ortega to discuss the incident. (Pl. 56.1 Resp. ¶ 34.) At the meeting, Haener informed Ortega of the allegations against him. (Def. 56.1 Resp. ¶ 34.) Without informing Haener that diabetes caused him to urinate with great frequency and urgency, Ortega admitted that he urinated while he was on the factory floor, but he claimed that he urinated into a cup, not into the scrap metal bin. (Id.) Haener then terminated Ortega's employment for public urination and property damage to Cast's plant, telling him that "pulling out your penis and urinating in the middle of a plant is unconscionable and unreasonable." (Id.; Pl. 56.1 Resp. ¶ 31; Haener Dep. at 65:13-18.) The next day, March 9, 2006, Haener learned for the first time that diabetes caused Ortega to urinate frequently. (Pl. 56.1 Resp. ¶¶ 19, 35.)
Subsequently, Ortega found a job as a machine operator for Frank's Welding on March 15, 2007. (Pl. 56.1 Resp. ¶ 24.) On September 27, 2007, the EEOC filed suit against Cast alleging failure to accommodate and discriminatory termination. (Compl. ¶¶ 9, 12.)
Summary judgment is proper when "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("'Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'").
The ADA prohibits discrimination in the terms, conditions and privileges of employment against "a qualified individual with a disability because of the disability of such individual." See 42 U.S.C. § 12112(a). A court must begin its analysis of ADA claims by assessing whether the plaintiff is disabled within the meaning of the ADA. See Burnett v. LFW, Inc., 472 F.3d 471, 483 (7th Cir. 2006). A person has a disability under the ADA when a physical impairment substantially limits at least one of the person's major life activities. See 42 U.S.C. § 12102(1)(A).*fn3 Diabetes is a recognized impairment under the ADA. See Branham v. Snow, 392 F.3d 896, 902 (7th Cir. 2004). Whether an impairment gives rise to a disability under the ADA is a fact-specific inquiry that requires the Court to assess the effect that the impairment has on an individual's major life activity; therefore, diagnosis of an impairment alone is not sufficient to establish the existence of a disability within the meaning of the ADA. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).
Ortega claims that diabetes affects his major life activity of waste elimination. While the Seventh Circuit has not addressed whether eliminating bodily waste is a major life activity, other courts have recognized that waste elimination is a major life activity under the ADA. See, e.g., Heiko v. Columbo Savings Bank, 434 F.3d 249, 255 (4th Cir. 2006) ("[E]very circuit court to address the issue has concluded that waste elimination is a major life activity."); Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 384 (3d Cir. 2004); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999); Erjavac v. Holy Family Health Plus, 13 F.Supp.2d 737, 747-48 (N.D. Ill. 1998) (Castillo, J.) ("Eating and waste elimination are both essential to remaining alive."). The parties do not dispute that waste elimination constitutes a major life activity under the ADA. Therefore, Ortega is an "individual with a disability" if diabetes substantially limits his major life activity of eliminating waste.
The impairment does not need to cause an utter inability to perform a major life activity in order to constitute a "substantial limitation" under the ADA. See Branham, 392 F.3d at 902 (quoting Bragdon v. Abbott, 524 U.S. 624, 641 (1998)). An individual's ability to perform a major life activity is substantially limited if the individual is unable to perform the activity or is significantly restricted as to the condition, manner or duration under which he can perform it, as compared to an average person in the general population. See Squibb v. Memorial Med. Ctr., 497 F.3d 775, 781 (7th Cir. 2007) (citing 29 C.F.R. § 1630.2(j)(1)). To determine whether an impairment substantially limits an individual's ability to perform a major life activity, courts consider the nature and severity of the impairment, the actual or expected duration of the impairment and the anticipated permanent or long-term impact of the impairment. See Davidson v. Middlefort Clinic, Ltd., 133 F.3d 499, 506 n.3 (7th Cir. 1998). Other courts have found that individuals could be substantially limited in the major life activity of waste elimination when their impairment causes the frequent and urgent need to eliminate waste. See, e.g., Workman, 165 F.3d at 467 (employee's spastic colon could have substantially limited major life activity of waste elimination when employee needed to use restroom immediately whenever she felt the urge); Wirtz v. Ford Motor Co., No. 05-40324, 2008 WL 565260, at *2, *4 (E.D. Mich. Feb. 28, 2008) (Gadola, J.) (employee's irritable bowel syndrome and muscoskeletal spasms could have substantially limited her ability to eliminate waste because the condition required her to have restroom access "frequently and without ...