United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
JOE BILLY MCDADE, Senior District Judge.
This matter is before the Court on Defendant Metamora Telephone Company's Motion for Summary Judgment. (Doc. 16). Plaintiff Michael Sluga brought a one-count Complaint under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, on November 21, 2013, alleging that Defendant discriminated against him on the basis of his disability when it terminated his employment. (Doc. 1). The motion is fully briefed and ready for decision. For the reasons discussed below, Defendant's motion is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009). All inferences drawn from the facts must be construed in favor of the non-movant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011).
To survive summary judgment, the "nonmovant must show through specific evidence that a triable issue of fact remains on issues on which he bears the burden of proof at trial." Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on record could not lead a reasonable jury to find for the non-movant, then no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). At the summary judgment stage, the court may not resolve issues of fact; disputed material facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
Plaintiff Michael Sluga previously worked for Defendant Metamora Telephone Company ("Metamora"). Metamora installs and maintains underground telephone, TV, and internet lines in and around Marseilles and Metamora, Illinois. In the Spring of 2013, after Sluga's employment had ended, Metamora signed a franchise agreement with Washington, Illinois and expanded its installation work.
Sluga was last employed by Metamora as an Outside Plant Supervisor. As part of that job, he was responsible for supervising outside crews that installed telephone, TV, and internet lines during the company's busy construction season, which runs from April until early winter every year. In addition to his supervision work, Sluga was also tasked with maintaining Metamora's machines and vehicles and inputting mapping data into Metamora's computer system.
Plaintiff tore his rotator cuff (which he had also previously torn in 2006) on July 27, 2011 when he slipped on a trailer while at work and fell two feet to the ground. He worked from August 4, 2011 through February 14, 2012 with the injury. By December 1, 2011 it became clear that Plaintiff would need surgery. He informed Metamora that he would need to take a six month leave of absence for physical rehabilitation after the surgery. Plaintiff had rotator cuff surgery on February 15, 2012 in Chicago. At that time, he was placed on twelve weeks of job-protected Family and Medical Leave under the federal Family and Medical Leave Act from February 15 through May 16, 2012.
On May 20, 2012, after the expiration of Plaintiff's FMLA leave, Defendant promoted Dale Matson to Outside Work Supervisor, the position that Plaintiff held before he took his leave. Matson had previously worked as an outside crew member under Sluga's supervision. Matson testified that he received the outside plant supervisor's job and promotion because he had been doing the work of a supervisor in Plaintiff's absence. Also during Plaintiff's leave of absence, Defendant, through its president Glenn Rauh, hired Don Adams on August 6, 2012 to work on the outside crew doing line installation.
Plaintiff filed a workers' compensation claim for his July 27, 2011 injury and ultimately settled it. On July 27, 2012, Plaintiff's treating physician sent a report to Defendant's workers' compensation insurance company which stated that a decision on whether Plaintiff could return to work would be made in four weeks. Plaintiff's treating physician released him to return to work on August 29, 2012 with some work restrictions, and Plaintiff reported back to work on August 30, 2012. Defendant did not put him back to work, and effectively terminated him at that point. Defendant, through its agents, told him that he could not return because it had no open jobs that he could fill at that time and did not anticipate having other jobs opening in the future. Defendant had filled Sluga's previous position by promoting Dale Matson in May of 2012, and it filled its open line installation position - which Sluga suggests he was qualified to fill - by hiring Don Adams in early August 2012. Sluga has not provided evidence that Defendant had any other open jobs available at the time that he wished to return, including mapping and data entry jobs.
For purposes of the pending motion, Defendant concedes that Plaintiff is a person with a disability under the Americans with Disabilities Act ("ADA"). However, Defendant argues that it is entitled to summary judgment because the undisputed evidence demonstrates that Plaintiff is not a "qualified individual." This is a prerequisite to obtaining relief under the ADA. See 42 U.S.C. § 12112(a). Even if Plaintiff can show that he is a qualified individual under the ADA, Defendant argues that Plaintiff cannot produce evidence sufficient to state a prima facie case of discrimination on the basis of disability or evidence that its nondiscriminatory reason for terminating him is pretext for discrimination. Before reaching these issues, however, the Court must consider what to do with the Affidavit of Ann Dickerson, Defendant's corporate officer who is responsible for human resources matters.
I. Dickerson's Affidavit
In support of its motion for summary judgment, Defendant submitted an affidavit made by one of its corporate officers, Ann Dickerson. ( See Doc. 16-1). Plaintiff argues that the Court should strike it as a sham affidavit because certain parts of it purportedly contradict her deposition testimony. ( See Doc. 23 at 10).
Courts should only consider affidavits that conflict with earlier deposition testimony in "a limited number of circumstances, " such as when an affidavit clarifies ambiguous or confusing testimony or is based on newly discovered evidence. See Adelman-Tremblay v. Jewel Cos., Inc., 859 F.2d 517, 520 (7th Cir. 1988). If an affidavit presented at the summary judgment stage does not contradict earlier testimony, it should not be stricken. See Aviles v. Cornell Forge Co., 183 F.3d 598, 602-03 (7th Cir. 1999). Of ...