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Darrell Lynn Miller v. Illinoisdepartment of Transportation

May 10, 2011


Appeal from the United States District Court for the Southern District of Illinois. No. 3:07-cv-00677-William D. Stiehl, Judge.

The opinion of the court was delivered by: Hamilton, Circuit Judge.


Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

Plaintiff-appellant Darrell Miller worked for five years for defendant-appellee Illinois Department of Transportation (IDOT) as a highway maintainer on a bridge crew. He was fired in June 2007 and then filed this suit alleging discrimination and retaliation in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The district court granted summary judgment for IDOT. We reverse.

Miller has presented evidence from which a reasonable jury could conclude that IDOT regarded him as disabled because of his fear of heights. Miller has also presented evidence that would allow a reasonable jury to find that he could perform the essential functions of his job with reasonable accommodations. Finally, we conclude that there are genuine issues of material fact concerning IDOT's stated reasons for firing Miller.

I. Relevant Facts and Proceedings

Because we review a grant of summary judgment, we must consider the evidence in the light most favorable to Miller, the non-moving party. We must give him the benefit of any conflicts in the evidence and any reasonable inferences that might be drawn in his favor. E.g., Winsley v. Cook County, 563 F.3d 598, 602-03 (7th Cir. 2009).

Miller began working for IDOT in 2002 and was assigned to the bridge crew based in Dongola, Illinois, near the southern tip of the state. A bridge technician and four other highway maintainers were also assigned to the same crew. As a highway maintainer assigned to a bridge crew, Miller was responsible for a variety of tasks, many of which could be performed from the ground. Those tasks included operating and repairing maintenance vehicles and equipment, including trucks, pavement marking equipment, tractors, mowers, snow plows, and jack hammers; maintaining large culverts, abutments, guardrails, and drainage installations; spreading salt, sand, gravel, and asphalt; directing traffic during maintenance operations; cutting grass, weeds, and brush; repairing signs and digging post holes; cleaning and maintaining the crew's headquarters; disposing of trash and highway debris; and record-keeping. Some of the bridge work, of course, required working at some height above the ground or water. The highway maintainers on the bridge crew also had to chip, seal, and clean bridges, and clean and paint bridge bearings.

From the outset of his employment, Miller had occasional difficulty working from heights, particularly when he worked in an unsecured environment. When he began work he had not been formally diagnosed with acrophobia, but Miller informed IDOT and the lead worker of his bridge team, Steve Maurizio, that he had a fear of some heights and that there were a few tasks that he would not be able to do. Specifically, he informed Maurizio that he would not be able to "walk a bridge beam." In spite of his fear, Miller was able to perform work in an elevated, hydraulically lifted "snooper bucket" at heights of up to 80 feet, and he was able to crawl on the arch of a bridge on a catwalk. He estimated that his fear would be triggered and he would have problems with less than three percent of his job description, but even then he was able to complete his assigned tasks on all but one occasion.

Until early 2006, IDOT informally accommodated Miller by allowing other members of his team to handle those tasks for him, just as other team members' conditions or limitations were accommodated. For example, Maurizio was unable to weld. Another co-worker refused to ride in the snooper bucket, was not required to climb the arches of an interstate bridge linking Illinois to Kentucky, was unable to spray bridges because of his allergies, was not required to mow the yard, and was not required to rake patching debris. Other crew members would swap assignments as needed to enable the crew to complete those tasks. In short, the evidence would allow a jury to find that the team worked effectively as a team, taking advantage of each member's abilities and accommodating each member's limitations.

Miller worked successfully as a highway maintainer on the bridge crew without incident for several years. Then, on March 10, 2006, Miller's crew was working on a bridge in Marion, Illinois. The crew was installing pieces of plywood underneath the bridge as a protective shield to protect the road below from falling pieces of concrete. The crew's bridge technician, Kenneth Greenlee, assigned Miller to go up in a snooper bucket from which he would nail wood beams to the bridge flanges and then nail plywood sheets to the beams. This assignment required Miller to unhook his lifeline and work unsecured. He completed his assigned task, but he later filed a grievance because he believed he had been ordered to perform an unsafe task.

Less than two weeks later, on March 23, 2006, Miller's bridge crew was changing light bulbs on a bridge that crosses the Mississippi River. Crew leader Maurizio assigned Miller and another crew member to "go over the edge" of the bridge to change the navigation light bulbs directly above the river. Miller had to climb down a ladder on the side of the bridge to reach the station that held the light fixtures. Some of the stations would have required him to stand on a bridge beam while wearing a lifeline. When Miller attempted to change a bulb that would have required him to stand on a bridge beam, he was unable to complete the task. He suffered a panic attack and was taken by ambulance to a hospital. That was the first, last, and only time Miller was unable to complete an assigned task because of his fear of heights.

IDOT's response to that incident is central to whether it regarded Miller as disabled. IDOT placed Miller on sick leave and ordered him to submit to a fitness-for-duty examination. IDOT's examiner, Dr. Byron Gorton, diagnosed Miller with acrophobia and concluded that he was unfit to work as a highway maintainer. An IDOT administrator told Miller that he needed to request non-occupational disability status or he would "get nothing." Miller made the request, and IDOT placed Miller on non-occupational disability status on June 23, 2006.

Miller described his limitation as being unable to work at heights above 20 to 25 feet in an exposed, extreme position. IDOT documents reflect that, from the time it received Dr. Gorton's diagnosis, it treated Miller as if his condition imposed much more extensive limits, as if he were unable to work above any height greater than 20 feet. A June 21, 2006 memorandum (author unknown) to Angie Ritter, an IDOT personnel manager, explained, describing the work required in the bridge section of the bridge crew:

Working in the Bridge Section requires working above 20' regularly. 75% of Highway Maintainers work time is spent working on bridge structures. Bridge deck patching often requires full depth holes through the deck that exposes the crew to this hazard. Any work in the snooper truck, on bearings, piers, navigation lights, chipping concrete, etc. requires some exposure to heights. Traffic control, brush removal and yard maintenance are also included in the HM's assignments that would not normally include this exposure. However, flagging on a bridge or clearing brush on a steep slope could also be perceived as a height exposure.

The memorandum concluded that the traffic section and maintenance team section of the bridge crew would also be off-limits to someone unable to work at heights above 20 feet.

Miller filed a grievance challenging Dr. Gorton's conclusion that he was unfit to perform his duties. On July 2, 2006, Miller also filed a request for reasonable accommodation, requesting that he not be required to work "on bridge beams and other extreme places over 20-25'- Bridge piers or skeletal structures (frames) and other places-ex. snooper bucket, etc.,"and that he be transferred from Dongola to the IDOT yard in Anna, Illinois. In response, personnel manager Ritter told him, "I'll tell you right now, we don't grant requests."

Miller supported his grievance and request for accommodation with the independent evaluation of psychiatrist Dr. William Mings, who opined that Miller could con- tinue to perform the functions of his job if IDOT provided him with the same reasonable accommodation that it had in the past. In November 2006, the Illinois Retirement System required Miller to be examined by another psychiatrist, Dr. Klamath, who also found that ...

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