United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Lamar Hillman brought this suit against his employer, Costco Wholesale Corporation, alleging disparate treatment, failure to accommodate, and retaliation in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. Doc. 41. (The operative complaint also names Sedgwick Claims Management Services, Inc., as a defendant, but the record does not indicate that summons was issued, let alone served, so Sedgwick will be ignored.) Trial has been set for March 9, 2015. Doc. 71. Costco has moved for summary judgment. Doc. 51. The motion is granted as to the disparate treatment and retaliation claims and denied as to the failure to accommodate claim.
The following facts are stated as favorably to Hillman, the non-movant, as permitted by the record and Local Rule 56.1. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir. 2012).
Costco operates cash-and-carry member warehouses throughout the country and in the Chicago area. Doc. 61 at p. 1, ¶ 1. Costco employed Hillman as a seasonal employee at its Lincoln Park warehouse, located at 2746 North Clybourn Avenue in Chicago, from November 2007 through January 2008 and from October 2009 through December 2009. Id. at pp. 1-2, ¶¶ 1-2. On January 26, 2010, Costco re-hired Hillman as a part-time "service assistant." Id. at p. 2, ¶ 2. At all relevant times, the Lincoln Park warehouse was managed by Warehouse General Manager Brian Thomas, and three Assistant General Managers, Carl Benjamin, Jenny DiGuardi, and Theresa Williams. Id. at p. 4, ¶ 11. Vickie Burghgraef and Amber Hale were the payroll clerks at the Lincoln Park warehouse. Id. at p. 4, ¶ 12.
Costco publishes to its employees an Employee Agreement that sets forth policies and procedures applicable to hourly employees like Hillman. Id. at p. 4, ¶ 13. Hillman received a copy of the 2007 Employee Agreement when he was first hired as a seasonal employee in 2007. Id. at pp. 4-5, ¶ 14. Hillman also received, but refused to sign for, a copy of the 2010 Employee Agreement during a meeting with Costco management in May 2011. Id. at p. 5, ¶ 15. Costco's 2010 Employee Agreement prohibits discrimination and retaliation on the basis of an employee's protected characteristics, including disability. Id. at pp. 5-6, ¶¶ 16-17. The 2010 Employee Agreement offers all employees "personal medical leave, " which allows for a one-year leave of absence for an employee's own personal health issue. Id. at p. 6, ¶ 18. Costco encourages its employees to discuss their questions and concerns under its "Open Door Policy, " which is explained in the Employment Agreement. Id. at p. 6, ¶ 19.
Costco employs Regional Leave Administration Specialists who work with employees on approved leaves of absence. Id. at p. 6, ¶ 20. When an employee is ready to return from leave, the employee must contact a member of management, either an assistant general manager or a general manager, to schedule a job assessment review meeting. Id. at p. 7, ¶ 22. When work restrictions are received from the employee's physician, Costco holds a job assessment review meeting to explore job accommodations, and Frances Parisi, a third-party ADA consultant, coordinates the meeting between the employee, the warehouse general manager, and the leave administration specialist. Id. at p. 7, ¶ 23 & p. 9, ¶ 31. Costco generally attempts to return an employee to the position that he last held at his warehouse, with the next option being an equivalent position, and with the option after that being an open position within his job classification. Id. at pp. 7-8, ¶ 24. Employees on leave generally are given priority to apply for open positions, provided that the employee can perform the essential functions of the job with or without a reasonable accommodation. Id. at p. 8, ¶ 26. Positions at a higher job classification are considered promotional opportunities and are not evaluated as part of the job accommodation process. Id. at p. 8, ¶ 25.
In February 2010, Hillman was injured during a snowstorm while pushing carts in the Costco parking lot. Id. at p. 2, ¶ 4. Hillman filed a workers' compensation claim against Costco. Ibid. Following his injury, Hillman was moved to the major sales department at the Lincoln Park facility, where, at Thomas's direction and as an accommodation for the injury, he was allowed to sit as needed. Doc. 66 at p. 29, ¶ 1. Hillman now suffers from polyneuropathy, nerve damage, and labrum tears, and he considers himself to have a permanent disability as a result of his polyneuropathy. Doc. 61 at p. 2, ¶ 6. Due to his injuries, Hillman cannot be exposed to extreme temperatures and needs to sit after ten or fifteen minutes of walking due to swelling or pain in his feet. Id. at p. 3, ¶ 7.
On March 28, 2010, about a month after the February 2010 injury, Hillman began an approved medical leave of absence. Id. at p. 9, ¶ 28. Mark Cawsey, a Regional Leave Specialist, was assigned to assist with Hillman's return to work, and Hillman was advised to directly contact Thomas when he was ready to return from his leave. Id. at pp. 6-7, ¶¶ 21-22. In December 2010, Hillman spoke with Thomas, who explained the process for returning to work, which as noted above included a job assessment review meeting to discuss Hillman's restrictions. Id. at p. 9, ¶ 29. In February 2011, Hillman was released to work with the restriction that he "need[ed] to sit more than stand, " and Costco scheduled a job assessment meeting for March 2011. Id. at p. 9, ¶ 30. If, following the job assessment meeting, Costco determined that a reasonable accommodation could be made for Hillman in an open position within his job classification, Costco would award the position to him. Id. at pp. 12-13, ¶ 43.
On March 3, 2011, Hillman participated in his first job assessment meeting via telephone. Id. at p. 9, ¶ 31. Cawsey and Parisi also were present via telephone, and Hale and Thomas were in the warehouse office. Ibid. Hillman acknowledged that his position prior to taking leave, front-end assistant, was "not within the [medical] restrictions" discussed at the meeting, and he testified at his deposition that "[w]e already knew that [the job responsibilities of a front end assistant] were not tasks that I would be able to perform based on the restrictions that I was given by the medical doctor, so we skipped those." Id. at p. 10, ¶ 33.
During the meeting, Thomas mistakenly stated that a pharmacy technician position was available, but Cawsey advised the group that the pharmacy technician position was at a job grade higher than Hillman's level and thus could not be considered for purposes of the job assessment meeting. Id. at pp. 13-14, ¶ 46. If Hillman had been interested in the pharmacy technician position, he could have applied, but to qualify, he needed a state-certified license, had to have already been working at the time, and had to submit a letter of interest and participate in an interview process. Id. at p. 14, ¶ 47. Hillman believes that he should have been able to bid for the pharmacy technician position, but he did not apply or later complain to anyone at Costco that he was not being allowed to post for that position. Id. at p. 14, ¶ 48. There were no other positions available at the Lincoln Park warehouse in March 2011. Id. at p. 10, ¶ 34 & p. 13, ¶ 45. Following the March 2011 job assessment meeting, Costco sent Hillman a summary of the meeting that was later revised to reflect that the pharmacy technician position had been identified but not discussed because it was a promotional opportunity and thus not under consideration for the job assessment process. Id. at p. 14, ¶ 49.
Costco allowed Hillman to remain on a leave of absence as a reasonable accommodation and began sending him job descriptions for positions in his classification that became available at the Lincoln Park warehouse, which was the only Costco location of interest to him. Id. at p. 10, ¶ 35. Hale and Burghgraef were involved in sending Hillman notifications of the open positions. Id. at p. 11, ¶ 36. Hale would check the job bank of available positions at the Lincoln Park warehouse, identify positions at Hillman's classification, and then send Hillman both the job posting and a job analysis that described the job functions. Id. at p. 11, ¶ 38. If Hillman were interested in a particular position, he was responsible for contacting the warehouse to advise Costco within three days of receiving the job posting. Ibid.; id. at p. 12, ¶ 41. Hillman then would have been prioritized over other applicants for such position because Costco wanted employees on leave to return to work. Id. at p. 17, ¶ 61.
It was Costco's policy and Hale's practice to send job postings to employees via both UPS (for delivery signature) and regular or certified mail. Id. at p. 11, ¶ 37. At some point after the March 2011 job assessment meeting, the Lincoln Park warehouse became aware that Hillman could not receive UPS or certified mail and therefore began sending job postings to him via only regular mail. Id. at p. 12, ¶ 39. Hillman acknowledged that if documents were sent to him via regular mail, they would be left for him at his apartment. Id. at p. 12, ¶ 40. Hillman thereafter received, via regular mail, job postings from the Lincoln Park warehouse. Ibid. The postings sent to Hillman were logged on a "job posting log, " and the dates on the log reflect the dates that the postings were sent to Hillman. Id. at p. 11, ¶ 37.
On May 3, 2011, Costco conducted a second job assessment meeting with Hillman. Id. at p. 14, ¶ 50. The attendees included Hillman, Burghgraef, and Thomas at the warehouse office, along with Parisi and Cawsey via telephone. Id. at p. 15, ¶ 51. Although there were positions available within Hillman's classification, those positions were not discussed because of Hillman's medical restrictions-he needed a more sedentary or seated position, and could not be exposed to extreme temperatures-which were "significant enough that Costco did not have positions that were available or that [he] could perform." Id. at p. 15, ¶ 53. One of the open positions within ...