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Pashnick v. United Parcel Service

November 8, 2010


The opinion of the court was delivered by: Judge Joan H. Lefkow


Dawn Pashnick filed suit against United Parcel Service ("UPS") for failure to accommodate and constructive discharge in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (2006).*fn1 The court has jurisdiction pursuant to 28 U.S.C. § 1331. UPS has moved for summary judgment. For the following reasons, UPS's motion [#36] is granted.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56(c) & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). In response, the nonmoving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at 598--99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).


Based on Local Rule 56.1, the following facts are deemed admitted. Pashnick began work at UPS's Chicago Area Consolidated Hub ("CACH") in Hodgkins, Illinois as a part-time Loader/Unloader. In this position, she joined the International Brotherhood of Teamsters Local 705 ("Local 705"), which has a collective bargaining agreement ("CBA") with UPS that governs the terms and conditions of Pashnick's employment. Article 44(1) provides that seniority prevails "for all purposes and in all instances." Def.'s Statement of Facts ¶ 9, hereinafter "DSF ¶ __."

Pashnick began work as a voicer, switching to Data Acquisition work several years later. In this position, she was required to lift packages weighing up to seventy pounds and to bend. These requirements were part of a Loader/Unloader's essential job functions. On December 11, 2006, UPS transferred Pashnick and other part-time employees to the Small Sort area due to an agreement between UPS and Local 705. Some part-time employees remained in the Data Acquisition area, but they had more seniority than Pashnick. In the Small Sort area, Pashnick was required to lift bags that could weigh between fifty and seventy pounds and carry them across an aisle to a conveyor belt. On December 15, 2006, while being trained in her new position, Pashnick told the training supervisor, Mark DeLao, that she was having trouble, including walking back and forth when moving bags. Pashnick then met with Jim Bloede, a human resources representative, who instructed her to review the job functions of Loader/Unloaders and submit a doctor's note if she had restrictions that would prevent her from performing these functions. On December 18, 2006, Pashnick submitted a doctor's note from Dr. Steven Wardwell, an orthopedic surgeon, which provided that due to bilateral avascular necrosis of the hip, Pashnick cannot lift over thirty pounds or do any bending. Pashnick then met with Jennifer Molyneaux, an occupational health manager, and a union steward. Molyneaux asked Pashnick to fill out ADA accommodation request paperwork, including a Request for Medical Information from her doctor. Dr. Wardwell completed the form, listing the same restrictions as in his previous note, although he clarified that Pashnick could not bend only at the hips. He also stated that a hip replacement would allow Pashnick to perform the essential functions of her job. With her request, Pashnick sought a return to the Data Acquisition area. UPS's North Central Region ADA Committee reviewed Pashnick's accommodation request and determined that she was not eligible for a reasonable accommodation under the ADA. While Pashnick never returned to work after December 18, 2006, her employment has never been terminated, and she remains a UPS employee on inactive status.

Pashnick claims that her hip problem affects her ability to walk, run, bend, work, dress, and shower. She experiences pain if she walks very far, but, in December 2006, she was able to walk from her car to her work area at CACH. She does not need to use any assistive device to walk. She has tried to run since December 2006, but she claims it is not easy. Pashnick can bend down and pick something off the floor and avoids the pain of bending at her waist by bending at the knees. She currently works an eight-hour shift as a grocery store cashier and claims she would be able to work in the Data Acquisition area at CACH. Pashnick had no difficulty caring for herself in December 2006 and was able to shower and dress herself without assistance. She also does her own grocery shopping, drives, prepares meals without assistance, uses a computer, brushes her teeth without assistance, and participates in recreational activities.


I. Failure to Accommodate

To establish a prima facie case for failure to accommodate under the ADA, Pashnick must demonstrate that (1) she is "a qualified individual with a disability," (2) UPS knew of her disability, and (3) UPS failed to reasonably accommodate her. 42 U.S.C. § 12112(a)--(b); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir. 1997). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). "A plaintiff seeking to avoid summary judgment must demonstrate that there is at least a genuine issue of material fact as to whether he is disabled, [and] whether he can perform the essential functions of the position." Kupstas v. City of Greenwood, 398 F.3d 609, 611 (7th Cir. 2005).

The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Having an impairment is not enough; a plaintiff must also show that the impairment substantially limits a major life activity. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed. 2d 615 (2002). The EEOC has interpreted "substantially limits" to mean

(i) Unable to perform a major life activity that the average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the ...

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