The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is defendant's Motion for Summary Judgment (Doc. 28), to which plaintiff has filed a response (Doc. 31)*fn1, and defendant a reply (Doc. 34) and a supplemental reply (Doc. 34)*fn2. Defendant seeks summary judgment pursuant to Fed. R. Civ. P. 56(c) on both counts of the Complaint.
Plaintiff, Darrell Lynn Miller, began working for defendant, the Illinois Department of Transportation (IDOT), in August of 2002, as a highway maintainer on a bridge crew in Dongola, Illinois. From August 2002 to March 2006, plaintiff worked in that capacity and allegedly informed his crew members and superiors that he had a fear of "some heights" and that he "couldn't walk a bridge beam." On March 10, 2006, while working on a bridge supporting Interstate 55 crossing Highway 13 in Marion, Illinois, plaintiff alleges that he was instructed to unhook his lifeline while securing plywood to the underside of the bridge. The following day, on March 11th, plaintiff filed a grievance regarding the March 10th work occurrence.
Despite obtaining a doctor's note from Dr. J. Michael Cerny stating that plaintiff was unable to work at such heights, plaintiff was allegedly instructed to "go over the edges" of a bridge while installing light bulbs on the Highway 60/62 bridge crossing the Mississippi River in Fort Defiance, Illinois on March 23rd. Plaintiff experienced a panic attack, for which he sought and received medical attention. Plaintiff went on sick leave, after which he was placed on administrative leave and ordered to submit to a fitness for duty exam with Dr. Byron Gorton. On April 25th, Dr. Gorton communicated to IDOT that he diagnosed plaintiff with acrophobia (i.e., fear of heights).
On July 7th, plaintiff filed a request for reasonable accommodation with IDOT requesting that he not have to work on bridge beams or other extreme places over 20-25 feet and that he be transferred to the IDOT yard in Anna, Illinois. On January 16, 2007, defendant denied plaintiff's request for reasonable accommodation. From June 23, 2006 to April 30, 2007, plaintiff was placed on nonoccupational disability status. After filing a grievance about whether he was fit to perform highway maintainer duties, plaintiff was ordered back to work in Cairo, Illinois, as a highway maintainer on May 1, 2007.
On May 1st, plaintiff first reported to the Carbondale District Nine IDOT office before reporting to the Cairo, Illinois yard. While plaintiff was speaking with Kevin Mills, a woman named Angie Ritter, the District Nine Personnel Manager, walked down the stairs. Plaintiff allegedly told Mills, "Right there is Arch enemy Number 1. I have never hit a woman. Sometimes I would like to knock her teeth out." (Doc. 31). Shortly thereafter, plaintiff reported to the yard in Cairo, but was sent home and placed on administrative leave at noon. Plaintiff was charged for his comments about Ritter and because he had allegedly made threats of violence toward personnel working at the Dongola yard.
On June 20, 2007, plaintiff was discharged from his employment with IDOT. Plaintiff filed a grievance contesting his discharge, after which the parties submitted to arbitration. At arbitration, plaintiff was not awarded back pay or benefits and was found to have engaged in "conduct unbecoming." As a result of arbitration, plaintiff returned to work at Cairo, Illinois, on November 19, 2008.
On September 27, 2007, plaintiff filed a complaint in this Court alleging two claims against defendant: (1) unlawful discrimination pursuant to Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; and (2) unlawful retaliation pursuant to Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Defendant now seeks summary judgment pursuant to Fed. R. Civ. P. 56(c) on both Counts alleged in the complaint.
Under Fed. R. Civ. P. 56(c), summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
To make a prima facie claim of disability discrimination under the ADA, plaintiff must demonstrate that: (1) he is disabled; (2) he is qualified to perform the essential functions of the job, with or without accommodation; and (3) he suffered an adverse employment action because of his disability. Nese v. Julian Nordic Construction Co., 405 F.3d 638, 641 (7th Cir. 2005)(citations omitted).