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Slutsky v. Jacobson Companies

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

June 29, 2017

TONY E. SLUTSKY, Plaintiff,


          John Robert Blakey, United States District Judge

         Tony 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. [5] at 1-5. Defendant has moved for summary judgment, and, for the reasons explained below, that motion [31] is granted.

         I. Background[1]

         A. Plaintiff's Employment

         Defendant employed Plaintiff as a truck driver from October 2, 2014 until March 10, 2015. [50] 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. [54] at 1-2. When Slutsky was hired, he reported that he was able to perform the essential functions of the job without reasonable accommodation. [50] at 8.

         Slutsky initially worked on the night shift, where he only drove diesel trucks. Id. at 10; see also [64] at 6. In February or March of 2015, Slutsky was offered a position on the day shift. [64] 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 brakes.” Id.[2]

         Plaintiff 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. [54] at 4. At that time, there were approximately nine trucks at Defendant's Romeoville location: three diesel trucks and six CNG trucks. [50] at 3. Ward testified that her decision to assign a driver to a particular truck was discretionary. [54] at 5.

         B. Jacobson's Workplace Safety Rules

         As a Jacobson truck driver, Plaintiff was required to follow all of Jacobson's policies, including its safety rules and regulations. [50] 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.

         Defendant's 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. [54] 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. Id.

         Ward testified that, as a practical matter, she never used probation as part of Defendant's progressive disciplinary process, [54] 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.”).

         C. Plaintiff's Violations of Jacobson's Safety Rules

         Slutsky first violated Jacobson's workplace safety rules on December 16, 2014. [54] 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.

         Plaintiff 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.

         On 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 warning.” Id.

         On 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.[3] [50] at 15. That same day, Ward terminated Slutsky's employment, citing each of these three safety incidents as cause for his termination. Id. at 15-16.

         D. ...

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