United States District Court, N.D. Illinois, Eastern Division
TONY E. SLUTSKY, Plaintiff,
JACOBSON COMPANIES, Defendant.
MEMORANDUM OPINION AND ORDER
Robert Blakey, United States District Judge
Slutsky (“Plaintiff” or “Slutsky”) is
suing his former employer Jacobson Companies
(“Defendant” or “Jacobson”) for
failure to accommodate, disability discrimination, and
retaliation under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq.
 at 1-5. Defendant has moved for summary judgment, and,
for the reasons explained below, that motion  is granted.
employed Plaintiff as a truck driver from October 2, 2014
until March 10, 2015.  at 1. Before Plaintiff began
working for Jacobson, he was diagnosed with tendinitis in his
right ankle, a condition that causes him extreme pain when he
walks more than 100 feet.  at 1-2. When Slutsky was
hired, he reported that he was able to perform the essential
functions of the job without reasonable accommodation. 
initially worked on the night shift, where he only drove
diesel trucks. Id. at 10; see also  at
6. In February or March of 2015, Slutsky was offered a
position on the day shift.  at 7. Around that same time,
Jacobson replaced many of its diesel trucks with natural gas
(“CNG”) trucks. Id. at 3.
Although both types of truck were equipped with air brakes,
Plaintiff claims that the brakes in the diesel trucks were
easier to push than those in the CNG trucks. Id. at
3. Plaintiff also claims that, shortly after Jacobson
acquired the new CNG trucks, he requested an accommodation
from Jacobson because he believed that his tendinitis would
prevent him from safely braking in the new CNG trucks.
Id. at 6. Specifically, Slutsky claims that he
requested an accommodation by giving his supervisor, Heidi
Ward (“Ward”), a doctor's note stating that
he could only drive trucks with “power assisted
further claims that when Ward offered him a position on the
day shift, she told him that if he accepted, he would
“have to give up his accommodation” of driving
diesel trucks and drive a CNG truck instead.  at 4. At
that time, there were approximately nine trucks at
Defendant's Romeoville location: three diesel trucks and
six CNG trucks.  at 3. Ward testified that her decision
to assign a driver to a particular truck was discretionary.
 at 5.
Jacobson's Workplace Safety Rules
Jacobson truck driver, Plaintiff was required to follow all
of Jacobson's policies, including its safety rules and
regulations.  Ex. 2. Both Jacobson's workplace safety
rules and Department of Transportation (“DOT”)
regulations require pre-trip and post-trip inspection
reports. Id. at 7. Jacobson's workplace safety
rules also require all employees to report any accidents or
unsafe practices that occur on the job, regardless of their
original cause. Id. Ex. 6. Jacobson's workplace
safety rules further mandate that all trailer doors must be
secured with bungee cords. Id. at 13. Slutsky was
aware of these workplace safety rules during his employment
with Jacobson. Id.
policies also state that the company's disciplinary
response to a rules infraction “typically”
increases in seriousness until the infraction is corrected,
and that the usual sequence of corrective actions proceeds
from an oral warning, to a written warning, to probation, and
culminates in termination of employment.  Ex. 4. That
said, Defendant's policies also provide that: (1) the
appropriate corrective action will be devised in light of
“the seriousness of the infraction, the circumstances
surrounding the matter, and the employee's previous
record”; and (2) Jacobson will “immediate[ly]
terminate” any employee who destroys company property.
testified that, as a practical matter, she never used
probation as part of Defendant's progressive disciplinary
process,  at 5; instead, her usual practice resembled a
“three-strikes” system of increasingly severe
warnings that culminated in termination. [51-3] at
138:24-139:1 (Q: Jacobson utilizes a “three strikes,
you're out, kind of thing. You're terminated,
right?” A: “Correct.”).
Plaintiff's Violations of Jacobson's Safety
first violated Jacobson's workplace safety rules on
December 16, 2014.  at 5-6. At that time, Plaintiff was
issued a “written warning” for failing to secure
the doors of a Jacobson trailer, which caused the doors of
the trailer to fall off. Id.
next violated Defendant's workplace safety rules on
February 13, 2015, when he drove a truck that was later
reported damaged by another employee. Id. Slutsky
never reported any damage to the truck and claimed that the
truck was not damaged when he returned it. Id.
Jacobson subsequently launched an internal investigation into
this February 13 incident. Id.
February 25, 2015, Plaintiff again failed to secure the doors
of his trailer, causing his trailer and a customer's
loading dock to be damaged. Id. at 7. This third
incident resulted in the issuance of a “final
March 10, 2015, Jacobson informed Slutsky that it had
completed its investigation into the February 13 incident,
and determined that Slutsky was responsible for the damage to
his truck.  at 15. That same day, Ward terminated
Slutsky's employment, citing each of these three safety
incidents as cause for his termination. Id. at