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Pennie v. United Parcel Service

March 30, 2009


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


On May 15, 2003, Thomas Pennie ("Pennie) and his former employer United Parcel Service, Inc. ("UPS"), entered into an agreement settling four workers' compensation cases involving injuries sustained during Pennie's employment with UPS. UPS asserts that it understood one of these claims to involve a "permanent 25-pound lifting restriction" that would prevent Pennie from returning to his regular job as a package car driver and that, as part of the settlement agreement, Pennie agreed to be "separated" from his employment at UPS. Pennie, on the other hand, claims he understood the settlement agreement to compensate him only for non-permanent injuries and lost wages and that his resignation was not part of its terms.

Twelve days after signing the settlement agreement, Pennie attempted to return to regular job as a package car driver. UPS refused to allow him to resume work. Pennie filed this suit four years later, alleging that UPS discharged him in violation of the Americans with Disabilities Act ("ADA") (Counts I and II); in violation of Title VII, by refusing to reinstate him because he is a white male (Counts III, IV, and VIII); in violation of 42 U.S.C. § 1981, by discriminating against him as a member of a protected class (Counts V and VI); and in violation of the ADA and at common law, by discharging him for filing a charge of discrimination (Counts VII and IX). UPS filed a counterclaim against Pennie, charging that Pennie's receipt of benefits for disability constituted fraud. Both parties have moved for summary judgment. For the reasons discussed below, the court grants UPS's motion for summary judgment on all counts in Pennie's complaint and denies Pennie's motions for summary judgment on Counts I and II. Pennie's motion for summary judgment on UPS's counterclaim is also denied.


Pennie began working for UPS in 1987 as a customer service clerk. (Pl.'s 56.1 ¶ 5.) In September 1995, he applied for and obtained a position as a package car driver and began working as a driver at UPS's Beachview Center in Chicago. He later worked at UPS's River North Center and finally at its Lakeview Center, where he reported to Steve Lopez and Bob Baysinger. (Pl.'s 56.1 ¶ 5.) At all these centers, Pennie worked as a "swing" driver, a full-time position in which he filled in for other drivers temporarily unable to work their routes. Throughout his employment as a driver, Pennie was also a member of International Brotherhood of Teamsters, Local 705, and his employment was governed by the union's collective bargaining agreement with UPS. (Pl.'s 56.1 ¶ 5.)

The job of a package car driver is often physically demanding. On average, packages shipped by UPS weigh around 12 pounds, but UPS accepts packages weighing up to 150 pounds for delivery on package cars. (Def.'s Am. 56.1 ¶ 11-12.) On any given day, each package car could receive between 5 and 25 packages weighing from 60 to 70 pounds and between 5 and 10 packages weighing more than 70 pounds. (Def.'s Am. 56.1 ¶ 11.) Among the "essential job functions" of a package car driver, as defined by UPS, are the abilities to "lift, lower, push, pull leverage and manipulate packages . . . occasionally" weighing up to 70 pounds and to assist in moving packages between 70 and 150 pounds. (Def.'s Am. 56.1 ¶ 12-13.)

Pennie's Work-Related Injuries

Although the chief point of contention between the parties is the impact of Pennie's back injuries, the May 15, 2003 Settlement Agreement between the parties compensated Pennie for a total of four injuries, briefly summarized here. In 2001, Pennie filed four workers' compensation claims for four separate injuries to his hand, eye, and back sustained in the course of his employment between November 1999 and August 2001: on April 27, 2001 and November 14, 2001, Pennie filed claims for injuries involving back strain; on November 14, 2001, he filed a claim for a cut to his left hand; and on December 3, 2001, he filed a claim for a lacerated cornea. (Pl.'s 56.1 ¶ 20.)

The first injury occurred on November 19, 1999, when Pennie cut his left hand on a metal band around a package. He received seven or eight stitches and missed approximately six days of work. On December 1, 1999, Dr. Jane Cullen notified a clerical specialist at UPS's Health and Safety Center that she had placed Pennie under "lifting and other work restrictions" until his hand was fully healed. (Pl.'s 56.1 ¶ 8.) Sometime later (Pennie does not indicate the exact date), Pennie returned to job as a swing car driver. He filed a workers' compensation claim for his hand injury in November 2001.

On August 1, 2000, an envelope fell from a shelf and cut Pennie's eye, resulting in a "lacerated cornea" that became the basis for a December 3, 2001 his workers' compensation claim. Pennie does not indicate whether he received treatment or missed work because of this injury.

On March 2, 2001, Pennie strained his back. Ralph Kester, a chiropractor, and Dr. Scott Morris,*fn1 a physician at Concentra Medical Center (UPS's designated medical facility), treated Pennie for this injury. (Pl.'s 56.1 ¶ 11; "UPS 0021-0026," App. A to Pl.'s 56.1.) Although initially unable to return to work, Pennie met with his supervisor, Robert Baysinger, on March 5, 2001. (Pl.'s 56.1 ¶ 10.) On March 6, 2001, Baysinger placed a note in Pennie's employee file at UPS, which reads in part:

RE: Tom Pennie's alleged injury . . .

On Monday 3/5/01 at approximately 7 am Tom came into the DIAD room and said he had to see a chiropractor . . . I said Tom you might want to look into another profession because you seem to get hurt a lot and your (sic) unable to work. He said he hasn't been hurt and that he's always here . .

(Pl.'s 56.1 ¶ 12.) Baysinger sent a copy of the note to "Safety," apparent shorthand for UPS's "Health and Safety Group." (Pl.'s 56.1 ¶ 12; Def.'s 56.1 Resp. ¶ 12.) Sometime shortly after the accident, Baysinger again told Pennie that he "might want to think about another profession because we need our drivers five days a week." (Baysinger Dep. at 23-24, Ex. C to Def.'s Mem.; Pl.'s 56.1 ¶¶ 10-12; Def.'s 56.1 Resp. ¶ 10.) On March 13, 2001, Pennie returned to work with a temporary 25-pound lifting restriction, and UPS assigned him "temporary alternative work" ("TAW") for the period from March 13, 2001 through March 27, 2001. TAW, or "light duty," generally consists of assignments that are less physically demanding. Pennie's TAW assignment consisted of running a "shuttle route," which involves delivering packages between UPS facilities with the help of other employees, and working in the office at the Lakeview Center. (Def.'s Am 56.1 ¶ 19.) Pennie resumed his regular duties package car driver on March 28, 2001. He filed his claim for this injury on April 27, 2001.

On August 23, 2001, Pennie strained his back again, while depressing the clutch on his package car. (Pennie Dep. at 71, 75.) Dr. Ellen Fertelmeister at Concentra Medical Center examined Pennie and diagnosed his condition as "lumbar strain." Pennie had a follow-up examination with Dr. Leigh Rosenblum, who also diagnosed him as suffering from "lumbar strain."

Following this injury, Pennie took approximately four days off work. (Pl.'s 56.1 ¶ 13.) When he returned, UPS again placed him on TAW. Initially, he worked two days, September 6 and 7, as a package delivery driver in his regular position working the "swing" route. According to his deposition testimony, the route was high-volume, and Pennie complained to two drivers on the safety committee that the swing route was "very difficult and that [he] had a strain as a result." (Pennie Dep. at 88-89, Ex. A to Def.'s Mem.) UPS then placed him on a "shuttle route," delivering lighter packages between UPS facilities where there are other UPS employees on hand to handle large or heavy packages. (Def.'s Am. 56.1 ¶ 19.)

On August 23, 2001, Baysinger inserted another note in Pennie's employee file in which he reported that Pennie claims to have hurt himself depressing his clutch after he unhooked his chain on his back door at 2450 Main. He said he felt a twinge in his lower back as he was depressing his clutch. I asked if he felt anything before this he said no. He did say his [sic] this particular clutch hi [sic] alittle [sic] harder than most. And then went on to explain the different clutches in other package cars. I talked to the treating physician Ellen X. Fertelmesiter [sic] is [sic] this was possible to strain his back by depressing his clutch. She did say he had a lumbar strain and reviewed his restrictions. I then talked with Janet the physical therapist and asked her this was an unusual injury caused by a clutch and she said no that anything is possible. I said he wasn't bending or lifting things that I thought caused back injuries. I also said that Tom said this was the first he felt discomfort and it just seem [sic] to her that he felt some discomfort on Monday when he had a high step vehicle.

It seems alittle [sic] particular [sic] that he would mention this to her and not me when I asked him questions about the injury. (Pl.'s 56.1 ¶ 14.) Pennie testified that in March and August of 2001, Baysinger commented that Pennie had "a bad back." Baysinger denies ever making such a statement. (Pl.'s 56.1 ¶¶ 10, 13.) Pennie's Work and Medical History Through January 2002

On September 13, 2001, Dr. Ralph Kester, Pennie's personal physician, examined Pennie, and imposed certain work restrictions, including "no repetitive lifting over 40 pounds," "no pushing or pulling over 50 pounds," and "no bending greater than 10 times per hour." (Pl.'s 56.1 ¶ 16.) Dr. Kester's report noted that "no permanent disability is expected." (Id.) Dr. Kester examined Pennie again on September 17, 2001, and continued his previous work restrictions, noting then that Pennie's progress was "good" and that he anticipated Pennie's eventual return to his regular job. (Pl.'s 56.1 ¶ 17.) On September 27, 2001, Dr. Jessie Butler, a doctor at the Center for Orthopedic Surgery, examined Pennie, recommended continued work restrictions in accordance with Dr. Kester's report, and anticipated Pennie's return to regular work. (Pl.'s 56.1 ¶ 18.)

On October 1, 2001, Pennie took vacation time and then immediately began an eight-week leave under the Family and Medical Leave Act for the birth of his second child. (Pl.'s 56.1 ¶ 19.) On October 30, 2001, he filed an application for benefits with the Illinois Industrial Commission, seeking recovery for the four injuries he had sustained during his employment from November 1999 through August 2001. (Pl.'s 56.1 ¶ 20.)

Pennie returned to Dr. Butler for a follow-up examination on November 21, 2001. After examining Pennie, Dr. Butler issued a report to Charles Zhungo, a claims adjuster at Liberty Mutual, the third-party insurance carrier that administers and defends workers' compensation claims on behalf of UPS. (Def.'s Am. 56.1 ¶ 34.) Dr. Butler recommended a 30-pound lifting restriction for the first two weeks after Pennie's return to work, followed by an increased lifting limit of 60 pounds, and an eventual return to work without any restrictions. (Def.'s Am. 56.1 ¶ 23.) Pennie returned to work on December 10, 2001 under the lifting restrictions recommended by Dr. Butler. (Pl.'s 56.1 ¶ 19.) Due to his 30-pound lifting limit, UPS again assigned Pennie to TAW work, running shuttle routes and assisting other drivers on their routes. (Def.'s Am. 56.1 ¶ 24.) Pennie saw Dr. Butler a fourth time on December 21, 2001. At that point, Dr. Butler decided to leave the original 30-pound restriction in place and advised Pennie to avoid work requiring anything more than occasional bending, lifting or twisting. (Pl.'s 56.1 ¶ 25.) Dr. Butler's report also noted that Pennie "feels his previous work restrictions are not being complied with [by UPS]." (Ex. 12 to Pennie Dep.)

On December 5, 2001, Zhungo scheduled an independent medical examination of Pennie by Dr. Klaud Miller. (Pl.'s 56.1 ¶ 22.) Dr. Miller examined Pennie on December 17 and sent his evaluation to Zhungo on December 28. (Pl.'s 56.1 ¶ 24.) In his report, Dr. Miller responded to a series of questions posed by Liberty Mutual about Pennie's current condition and prognosis. He diagnosed Pennie as suffering from "degenerative disc disease," a condition that "tends to progress with time" and may involve recurrent, incapacitating episodes, but nonetheless pronounced Pennie's short-term prognosis as "good." (Id.) He did not believe Pennie "had reached maximum medical improvement" at the time of the exam and recommended "an aggressive exercise program" to return him to full capacity, with light duty work in the interim. Dr. Miller estimated that Pennie could return to work without restrictions in approximately four weeks, but noted, "he will more likely than not have future episodes, although the exact frequency and duration cannot be determined with any degree of accuracy."

Liberty Mutual produced an unmarked copy of Dr. Miller's report in discovery. UPS also produced a copy of the report that had been extensively underlined by hand. (Pl.'s 56.1 ¶ 24; UPS 421-28, App. A to Pl.'s 56.1.) UPS's copy begins on page 2 and appears to be a fax, though the cover sheet is missing and the sender and receiver are not identified. (Pl.'s 56.1 ¶ 24.) UPS contends that the markings cannot be attributed to UPS as Pennie did not authenticate the document as required by Fed. R. Civ. P. 56.(e), and it is not clear from the record who made the markings. (Def.'s 56.1 Resp. ¶ 24.) Dennis Mergen, the Safety and Health Group manager who told Pennie in May 2003 he could not return to work after signing the Settlement Agreement, testified that he could not recall ever seeing the report, but admitted that his office would have received a copy. (Mergen Dep. at 55, 59-60, Ex. B to Pl.'s Mem.) He further testified that he did not have extensive involvement in workers' compensation claims at the time and that it was Laurie Saindon, a district occupational health supervisor who worked under Mergen at UPS, who "basically managed the workers' comp cases." (Mergen Dep. at 12.) According to Mergen's testimony, Saindon "would keep track of [employees who had filed workers' compensation claims] to make sure that the employee was . . . seeking the medical attention they needed, they were keeping their appointments, monitoring the progress of the case." (Mergen Dep. at 13.) Saindon was not deposed by either party.

On January 4, 2002, Laurie Saindon sent a fax to Dr. Butler regarding the medical reports from Pennie's November 21 and December 21 examinations. The fax asks Dr. Butler to review the documents because "some statements appear to be fraudulent." Saindon observed that "it appears that the employee made various changes" on the November 21 report in order to generate an additional report dated December 21. (Pl.'s 56.1 ¶ 26.) The fax does not specifically identify the suspected fraudulent statements, and the injury reports are not included in the record. On January 7, 2002, an employee at the Illinois Bone and Joint Institute sent Saindon's assistant a fax confirming that Pennie had not altered the reports. (Pl.'s 56.1 ¶ 26.)

Pennie's Seventeen-Month Leave of Absence

On or around January 18, 2002, Saindon contacted Pennie and, according to Pennie's deposition testimony, told him that he could not return to work as a package car driver until he had been cleared for full duty. (Pl.'s 56.1 ¶ 27.) According to UPS, Pennie was ineligible to return to work because the collective bargaining agreement between Local 705 and UPS provides for only 30 days of TAW, and Pennie had used his full 30 days. (Def.'s 56.1 ¶¶ 20, 26.) In fact, the collective bargaining agreement does not state any limit for TAW, and Pennie disputes that such a limit exits. (Collective Bargaining Agreement, Ex. 1 to Pennie Dep, Art. 14, § 2; Pl.'s 56.1 Resp. ¶ 20.) UPS admits that an operations manager can request an extension beyond the purported 30-day limit for an employee who is near full recovery from any restrictions. Baysinger, Pennie's operations manager, did not request such an extension for Pennie. (Def.'s 56.1 Resp. ¶ 63.)

In late January, UPS placed Pennie on workers' compensation leave of absence, and Pennie began collecting benefit payments for temporary total disability. (Def.'s 56.1 ¶ 26.) From February 13, 2002 through May 15, 2003, Pennie received temporary total disability benefit payments of approximately $652.87 per week. (Def.'s Am. 56.1 ¶ 38.) During this period, Baysinger called Pennie every few weeks to check on his condition. (Pl.'s 56.1 ¶ 60.) Baysinger testified that their conversations were typically brief and substantively the same: Baysinger would ask how Pennie was doing or when he expected to return, and Pennie would respond, "You tell me. I don't know. It's your doctor." (Id.)

On January 30, 2002, UPS directed Pennie to see Dr. Leslie Alpert of Evanston Northwestern Medical Health Care for a "functional capacity evaluation" to determine his lifting capacity. (Pl.'s 56.1 ¶ 27.) The first series of exercises required Pennie to lift incremental weights from the floor to "knuckle height," at approximately the mid-thigh. Pennie was able to lift 105 pounds to knuckle height, but only with difficulty. (Pennie Dep. at 133, Ex. A to Pl.'s mem.) Dr. Alpert then requested Pennie perform a series of lifts from knuckle to shoulder height and from shoulder height to over the head. Ultimately, Pennie was able to lift only 25 pounds from mid-thigh to shoulder height and no more than 25 pounds from shoulder height to over his head. (Def.'s Am. 56.1 ¶ 27; Pennie Dep at 130-33.)

On February 13, 2002, Dr. Butler reviewed the functional capacity evaluation results with Pennie. (Pl.'s 56.1 ¶ 29.) Based on those results, Dr. Butler set a 25-pound lifting restriction and discharged Pennie from his care with directions that Pennie follow-up on an "as needed basis." (Pl.'s 56.1 ¶ 28; Def.'s Am. 56.1 ¶ 28.) The report does not indicate whether the restriction was permanent. (Ex. 15 to Pennie Dep.) According to his deposition testimony, Pennie told Dr. Butler that he thought the functional capacity evaluation "was a reflection of [his] ability at that moment in time," but the results were tainted due to what he perceived as the unnecessary test of lifting 105 pounds to knuckle height. (Pl.'s 56.1 ¶ 29; Pennie Dep. at 146-47.) Pennie also testified that he anticipated future physical therapy as part of a "work hardening" program suggested in the functional evaluation report; but the report itself does not mention future therapy or "work hardening," nor has either party defined this expression. (Pennie Dep. at 146-47, 163; Ex. 14 to Pennie Dep.) After his examination, Pennie gave a copy of Dr. Butler's 25-pound lifting restriction to his supervisor, Steve Lopez. (Def.'s 56.1 ¶ 32) Pennie testified that he believed he was capable of returning to work as a package car driver at this time, but did not say anything to Lopez about this belief, nor express any disagreement with the lifting restriction. (Pennie Dep. at 161-62, 183.)

On March 4, 2002, Dr. Miller examined Pennie to determine the reasonableness of the 25-pound lifting restriction and issued a second report to Liberty Mutual. (Pl.'s 56.1 ¶ 30.) In this second report, Dr. Miller agreed that the 25-pound restriction was reasonable and that Pennie could perform work that did not exceed the restriction. (Id.) Dr. Miller's report did recommend "work hardening" and opined that "a good exercise program as outlined in my original report would help [Pennie] improve his capabilities." According to the report, Pennie made the following representations to Dr. Miller:

At the current time, he stated that he really had no true pain. He describes the sensations as more of an ache. They were primarily in the left lumbar and left gluteal areas. They did occasionally go into the left posterior thigh. He had occasional burning sensations in the left gluteal area. The sensations were more or less constant. They were aggravated by prolonged sitting. He stated that lifting, sitting, standing and twisting aggravated his sensation. He stated that he could sit and stand a maximum of one hour and was not sure how far he could walk. ("Miller Report II," Ex. 39 to Pennie Dep.) The report continues, "If his current functional limitations are not sufficient to return to his old job then I would recommend a work hardening program as I believe he would significantly improve his capabilities." (Miller Report II at 3, Ex. 5 to Mergen Dep.)

On March 29, 2002 UPS sent a letter to Pennie, advising him that if he wanted a job-related accommodation for his permanent lifting restriction under the ADA, his physician would have to fill out the attached medical forms. (Mergan Dep. at 48-49, 66-69; Pennie Dep. 195-96.) Saindon also sent follow-up letters on April 24, 2002 and May 15, 2002. (Def.'s Am. 56.1 ¶ 37.) Pennie did not respond to either of these letters because, according to Pennie, he "did not believe he was disabled" and "expressed his belief that he was capable of returning to work to various doctors, whose reports were communicated to UPS." (Pl.'s 56.1 Resp. ¶ 37.)

In a May 1, 2002 letter, Frank Sommario, an attorney who represented Pennie in his workers' compensation claim, advised Pennie to fill out the ADA forms if he was "amendable (sic)" to "outplacement" "with a possible job at another employer." (Ex. 24 to Pennie Dep., Ex. A to Pl.'s Mem.) Pennie did not complete the forms because he believed to do so "would be implying that I had a disability." (Pennie Dep. at 202-203.) In a subsequent letter dated August 1, 2002, Sommario refers to previous letters dated July 1, 2002, July 2, 2002, advising Pennie that completing the questionnaire was the only way "we can move forward with your case." (Ex. 24 to Pennie Dep.) The August 1, 2002 letter goes on to advise Pennie that he must fill out the forms "for UPS to make a determination as to whether they have a job that you can work given your permanent restrictions." (Ex. 24 to Pennie Dep.) On August 23, 2002, Sommario wrote Pennie again, informing him that due to Pennie's refusal to fill out the ADA ...

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