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Zizzo v. Jewel Food Stores, Inc.

United States District Court, N.D. Illinois, Eastern Division

November 12, 2014



GEORGE M. MAROVICH, District Judge.

Plaintiff John Peter Zizzo ("Zizzo") filed suit against defendants Jewel Food Stores, Inc. (his employer) ("Jewel") and Super Valu (the former parent company of his employer). Zizzo alleges that they violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. and the Age Discrimination in Employment Act, 29 U.S.C. § 623. Defendants have filed a motion for summary judgment. For the reasons set forth below, the Court grants defendants' motion for summary judgment.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. This Court enforces Local Rule 56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). It is not enough at the summary judgment stage for either party to say a fact is disputed. The Court considers a fact disputed only if both parties put forth admissible evidence of his or its version of the fact. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court. The Court enforces Local Rule 56.1 with respect to both parties regardless of whether either party moves to strike non-complying portions, because the purpose of the rule is to make the Court's job manageable, not to give litigants additional ammunition to use against one another.

In this case, defendants have objected to some of the evidence plaintiff put forth in opposition to defendants' statement of facts. For example, defendants object that plaintiff has not laid a foundation for some of the statements in the declarations of Zizzo and George Selimos ("Selimos") and that other statements are inadmissible hearsay. Rule 602 of the Federal Rules of Evidence states that a "witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed.R.Evid. 602. Thus, a statement that a witness "knows" or is "aware" of something must also include information about how the witness knows such thing. Ward v. First Federal Savings Bank, 173 F.3d 611, 618 (7th Cir. 1999) ("The Malkowski affidavit merely asserts that he is aware' of the alleged instruction by Pavlic; it does not reveal the source of Malkowski's awareness-be it a written directive from Pavlic, a conversation with him, or merely water-cooler gossip. As such, the affidavit fails to establish that Malkowski has personal knowledge of Pavlic's purported instruction."). Defendants argue that plaintiff has not laid a sufficient foundation for a number of statements in Zizzo's and Selimos's declarations. For example, Zizzo declares, "I know that it is possible to install a swivel seat in a Spotter jeep, " but he does not say how he knows. Has he seen it done before? Has he ridden in a Spotter jeep with such a seat? Has he installed such a seat before? The declaration does not say. The Court agrees that this and many other statements in the declarations lack foundation, and the Court will ignore the portions of the declarations that lack foundation. The Court will also ignore the inadmissible hearsay in those declarations.

The following facts are undisputed unless otherwise noted.

Plaintiff Zizzo is a long-time employee of defendant Jewel, which was, until March 2013, a wholly-owned subsidiary of Supervalu. Jewel operates grocery stores (around Illinois) and a distribution center for said groceries in Melrose Park, Illinois. Zizzo has been a truck driver for Jewel since 1977. As a driver, Zizzo was responsible for delivering and unloading groceries to Jewel stores using a tractor-trailer combination.

The position of driver carries with it certain physical, medical and licensing requirements. The physical requirements of driving include manual dexterity, coordination and balance; the ability to stand, walk and move on concrete floors; the ability to sit for up to 10 hours; the ability to lift between 10 and 100 pounds; the ability to push and pull up to 500 pounds; the ability to climb into the tractor using steps of 21, 39 and 55 inches in height; the ability to endure such physical demands as walking across sloped surfaces, flexing and extending one's neck, rotating one's neck and body, driving a vehicle, removing pallets from a trailer; and the ability to tolerate vibration. Jewel drivers are also required to have a commercial driver's license (which is required by the U.S. Department of Transportation) and meet the physical requirements of the Federal Motor Carrier Safety regulations.

In addition to delivering groceries to stores, Jewel drivers are also responsible for moving semi-trailers around the distribution center. The person who is assigned to move the semi-trailers around the distribution center is called a spotter. Spotters drive specially-designed truck cabs ("spotter jeeps") to move the trailers around the distribution center. Spotters hook the jeep to the trailer, raise/lower the landing gear, lift themselves into the spotter jeep and back trucks into carbo bays. Sometimes, spotters drive tractor-trailers on public roads, although the spotter jeeps do not have license plates. Jewel requires drivers working as spotters to maintain the same commercial drivers licenses and physical standards as all drivers. The only other employees who occasionally drive spotter jeeps are mechanics, who sometimes need to drive the jeeps that require maintenance back and forth between the maintenance facility and the parking area for jeeps.

Zizzo has been on a leave of absence from Jewel since January 2008, less than two months after he was injured at work. Zizzo suffered a back injury in November 2007. On two consecutive days (the 15th and 16th of) that month, boxes of turkeys fell on Zizzo while he was unloading his truck. (Zizzo's workers' compensation claim arising from the injury was settled years ago and is not at issue in this case.)

One thing Jewel did after Zizzo's injury was assign him to temporary alternative work. Jewel has a practice of assigning workers to light duty work if they suffer a temporary injury. Jewel typically assigns workers with temporary injuries to light office work. The second thing Jewel did, while Zizzo was doing temporary alternative work, was to send Zizzo for treatment at Concentra Medical Center. The doctor Zizzo saw at Concentra Medical Center prescribed Zizzo narcotic pain medication. Zizzo asked the doctor about taking narcotics while working light duty (a time during which Zizzo was not driving a truck). The doctor informed him that he could take the pain medication only at night.

By early January 2008, Zizzo's treating physician took him off of work completely. Zizzo went on a leave of absence from Jewel. By September 2008, Zizzo had surgery on his back. Zizzo remained off of work after his surgery while he spent time first recovering and then doing physical therapy and work hardening.

In January 2010, Zizzo underwent a functional capacity evaluation. Zizzo refused to engage in some of the tasks the specialist asked him to perform, because Zizzo's doctor had told him not to perform tasks that caused pain. Because Zizzo refused to perform certain evaluative exercises at the functional capacity evaluation, the specialist was unable to complete a valid evaluation.

Jewel then requested that Zizzo undergo an independent medical examination. Zizzo did so in February 2010, when he met with Dr. Frank Phillips ("Dr. Phillips"). Dr. Phillips reported that Zizzo had complained of severe back pain, as well as right buttock and leg pain. Dr. Phillips also noted that Zizzo was taking narcotic medications, including Hydrocodone and Vicodin. Dr. Phillips concluded that Zizzo was permanently restricted ...

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