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Butler v. Illinois Dep't of Transportation

October 30, 2009



Plaintiff, a highway maintainer diagnosed with post-traumatic stress disorder ("PTSD"), sued his former employer, The Illinois Department of Transportation ("IDOT"), alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (count I). Plaintiff fails in large part to respond to IDOT's pending motion for summary judgment with citation to authority or properly supported and developed arguments. See Fabriko Acq. Corp. v. Prokos, 536 F.3d 605, 609 (7th Cir. 2008)(explaining that it is not the court's job to develop arguments for the parties); United States v. Alden, 527 F.3d 653, 664 (7th Cir. 2008)(finding inadequately developed arguments without substantive legal authority waived). Nevertheless, I have done my best to analyze plaintiff's claims to ensure that IDOT has carried its burden. For the following reasons, summary judgment is granted.


Plaintiff was employed by IDOT as a highway maintainer from September 1999 until he was terminated in April 2004. Plaintiff was initially hired by IDOT to work in its Night Maintenance yard. Highway maintainers stationed in the Night Maintenance yard work between the hours of 7:30 p.m. and 6:00 a.m., performing duties that include patching potholes and picking up large debris off the highway. While performing routine Night Maintenance yard work, plaintiff was involved in several automobile accidents in which third-parties struck his IDOT vehicle. As a result of his last accident, which occurred in May of 2003, plaintiff sustained various physical injuries and was diagnosed with PTSD. He received workers' compensation benefits and did not return to work for six months.

In October of 2003, Dr. Obolsky, an independent medical examiner hired by IDOT, released plaintiff from workers' compensation leave, finding him able to return to work, but with a daytime restriction. Nurse Murray, another third party medical practitioner hired for workers' compensation purposes, concurred with Dr. Obolsky's recommendations. Instead of reporting to work immediately upon his release from workers' compensation, plaintiff did not return until late November 2003, after his own doctor cleared him to work with no restrictions. By that time, IDOT decided to temporarily transfer plaintiff from the Night Maintenance yard to the Dan Ryan day yard, where he worked until he was terminated.

Prior to the May 2003 accident, plaintiff submitted a transfer request asking to move from night maintenance to the Dan Ryan day yard permanently.*fn1 The transfer request form does not inquire as to the applicant's reason for the request and plaintiff did not provide one. Although his previous request was still active and the rules allow only one request per year, plaintiff submitted a new transfer request upon his return to work from leave on November 24, 2003. This time, plaintiff asked for a transfer to the Emergency Traffic Patrol ("ETP"), which plaintiff knew would require him to be on call twenty-four hours a day, seven days a week. In early January 2004, plaintiff submitted two more transfer requests. One was written on the wrong form, but both requested a transfer to the Dan Ryan day yard, just like his pending active request. These requests were denied because plaintiff was not eligible to file a new request until April 14, 2004.*fn2

Day yard highway maintainers were required to be on call alternating nights to plow snow during the snow and ice season.

IDOT's snow and ice season runs from approximately October 15 through April 15 every year. When IDOT receives inclement weather reports during the snow and ice season, it notifies the various affected maintenance yards to begin "callout" mode. This triggers the day yards to send the on-call night crew home to rest so they can be called back after hours to ensure twenty-four hour snow plowing is available.

If the weather requires nighttime snow plowing, callouts begin with a first call to an on-call highway maintainer's primary number. After eight rings, if there is no answer at the primary number, the secondary number is called. If there is still no answer, the caller waits five minutes and makes note of the time on a call sheet. After five minutes this process is repeated again, and then one more time for a total of three call cycles before that employee is deemed to have "missed" the callout. The caller then proceeds to call the next person on the list.

To ensure a prompt response to snow and ice callouts, IDOT and plaintiff's union negotiated standard progressive discipline for missed callouts. A written warning is given for the first missed callout, a one day suspension for the second, a five day suspension for the third, and termination for the fourth. Missed callouts are reported to the district personnel office, which arranged pre-disciplinary hearings for the offending employees. At these hearings, employees can have a union representative present and can provide a written response, documentation, and/or verbally explain why they were unable to answer the phone. If it is determined that the employee had a legitimate reason for failing to answer the callout, there is some discretion in imposing discipline.

It is undisputed that plaintiff failed to answer the phone for four different callouts during the 2003-2004 snow and ice season. The first missed callout occurred on December 15, 2003, the second on January 3, 2004, the third on February 4, 2004, and the fourth on March 13, 2004. Plaintiff received the proscribed progressive discipline after each missed callout -- a written reprimand, 1- and 5-day suspensions, and finally termination -- despite receiving all the proscribed disciplinary hearings and presenting his various excuses for missing the callouts.

In the months after plaintiff's termination, various prospective new employers sent IDOT employment verification information requests about plaintiff. One of those forms, provided by TLC Companies ("TLC") requested specific medical information in addition to work history. That form included a release, signed by plaintiff on August 9, 2004, expressly authorizing IDOT to disclose the information requested on the form. Carmen Cortese ("Cortese"), IDOT's Personnel Transactions Supervisor, filled out the relevant portions of the TLC form, including the request to "...advise of any injuries, illnesses or prescribed medications." Cortese obtained the requested medical information from IDOT's workman's compensation department, filled in "Back injuries, post traumatic stress," and returned the form to TLC. (Def.'s SOF Ex. B, Ex. 25.) Five days later Cortese received a message that plaintiff called and was "upset that [IDOT] released some info from his medical file without his permission." (Pl.'s SOF Ex. 5.) Plaintiff contends that when Cortese called him back, he admitted that IDOT fired plaintiff because of his PTSD. But Cortese testified that he merely explained to plaintiff that his medical information was only provided to TLC because plaintiff had signed a release expressly authorizing IDOT to release the requested information. Cortese was not involved with plaintiff's discipline or discharge.


Summary judgment is proper when the pleadings and discovery, together with 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); see also Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640 (7th Cir. 2008). All affidavits, opposing or supporting summary judgment, must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. FED. R. CIV. P. 56(e).

I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Hemsworth v., Inc., 476 F.3d 487, 490 (7th Cir. 2007). However, a party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact remaining for trial. Id. The plaintiff "cannot merely allege the existence of a factual dispute to defeat summary judgment." McPhaul v. Bd. of Comm'rs of ...

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