reviewed Dr. Brooks’ report and concurred with its finding that Miller had realized, as of March 30,
1998, that he was incapable of returning to the type of work that he had done before but that he
wanted to work and felt that he was capable of performing light duty work. Miller had informed Dr.
Brooks that he was not able to return to the type of work that he had done before.

D. Charge of Discrimination

In March of 1997, Miller asked his attorney to inform Ameritech that he wished to return to
work if he were granted certain accommodations. Specifically, Miller wanted to be assigned to a
bucket truck and to not be required to climb ladders or to lift more than seventy pounds without
assistance On September 11, 1997, Miller’s attorney faxed Ameritech’s attorney a copy of Dr.
Elias’ March 20 and September 2, 1997 notes regarding Miller. Miller never directly requested any
accommodations from Ameritech and, in fact, never had any contact with anyone at Ameritech after
1996 regarding his workers’ compensation claim or return to work. During his deposition, Miller
also admitted that he was not substantially limited in any major life activity in 1998 and that he was
not able to climb ladders or lift heavy objects without assistance in April 1998, which were essential
functions of his job.° Similarly, Dr. Elias did not believe that Miller was substantially limited in
terms of seeing, hearing, speaking, breathing, learning, performing manual tasks, and in his ability

to perform light duty jobs.

50On numerous occasions in his statement of additional facts and in his response brief, Miller refers to his
conversations with his attorney and what his attorney told him during those conversations as evidence that his
attorney informed Ameritech of Miller’s desire to return to work and of Ameritech’s refusal to return Miller to work.
See, e.g., 4125, 126. As discussed above, these statements are hearsay because Miller is offering what his attorney
told him as evidence of truth of the matters asserted. In addition, Miller’s belief that one of his attorney’s provided
his doctors’ notes to Ameritech is not admissible evidence because he has no personal knowledge of whether such
notes were provided to Ameritech. See {| 125. Accordingly, the court cannot consider such inadmissible evidence on
a motion for summary judgment.

"See, supra, note 3.

14


Additionally, Ameritech objects to narrative statements contained in Miller’s responses to
{| 22, 30, 42, 50, 57, 58, 59, 62, 71, 72, 77, 78, 82, 85, 86, 88, 89, 90, 97, 105, and 106. The court
agrees that these paragraphs contain improper narratives or attempts to qualify otherwise undisputed
materials and, accordingly, strikes the narrative statements.

Ameritech objects to Miller’s responses to {] 20, 48, 57, 61, 88, 89, and 101 because Miller
cites to his affidavit as evidence contradicting his own deposition testimony. Miller’s affidavit does
not contradict his deposition testimony with respect to his response to paragraph 20; however, his
cited evidence does not contradict Ameritech’s statement of fact in paragraph 20. At the same time,
Ameritech’s cited evidence does not establish that heavy lifting of 60 to70 pounds was a requirement
of the job ofa cable splicing technician. It establishes, instead, that heavy lifting of objects weighing
60 to 70 pounds was involved in Miller’s job. As a result, the court will not strike Miller’s response
to paragraph 20. The evidence cited by Miller with respect to paragraph 61 does not contradict the
fact that Miller never communicated to the Social Security Administration (“SSA”) that his disability
had ceased. Miller’s cited evidence only states that during his visit to the SSA, he informed the SSA
employees that he desired to return to work at Ameritech either on light duty or as a cable splicing
technician assigned to work in a bucket truck who would not be required to lift heavy objects without
assistance. See Pl. Ex. | at {{] 10-11. The court has considered and stricken paragraphs 48, portions
of paragraph 57, paragraph 61, and portions of 88 and 89 already.

Paragraph 101 presents a slightly more complicated issue. Miller was asked the following
questions during his deposition: “Since you indicated that you were able to do most any job, other
than ones that involve climbing ladders and lifting weights or heavy weights, 100-pound weights,

do you feel you were substantially limited in any major life activity at the time of your discharge?”


established by McDonnell-Douglas Corp. V. Green, 411 U.S. 792, 804, 36 L. Ed. 2d, 93 S.Ct. 1817
(1973). See DeLuca v. Winer Indus., 53 F.3d 793, 797 (7th Cir.1995) (applying the McDonnell-
Douglas method to ADA cases). Under this method, a plaintiff must first establish a prima facie
case of retaliation by showing “that (1) after lodging a complaint about discrimination, (2) only he,
and not any otherwise similarly situated employee who did not complain, was (3) subjected to an
adverse employment action even though (4) he was performing his job in a satisfactory manner.”
Johnson v. Cambridge Indus., 325 F.3d 892, 897 (7" Cir, 2003), quoting Stone v. City of
Indianapolis Pub. Utils. Div., 281 F.3d 640, 642 (7" Cir. 2002). Under the indirect method, the
plaintiff does not need to show “even an attenuated causal link.” Haywood v. Lucent Techs., 323
F.3d 524, 531 (7" Cir. 2003). Ifthe plaintiff establishes a prima facie case, “the burden shifts to the
defendant to come forward with a legitimate, non-invidious reason for the adverse employment
action.” Id. “Once the defendant presents a legitimate, non-invidious reason for the adverse
employment action, the burden shifts back to the plaintiff to show that the defendant’s reason is
pretextual.” /d. At all times, the burden of persuasion rests with the plaintiff. Jd.

While Miller suffered an adverse employment action in that he was terminated, his claim of
retaliation fails because Miller did not establish that he was treated less favorably than other similarly
situated employces who did not complain. Miller has offered no evidence regarding similarly
situated employees or their treatment. In fact, Miller essentially conceded his lack of evidence in
response to Ameritech’s statement of facts. See Plaintiffs Response to Defendant Ameritech’s
Local Rule 56.1 Statement and Statement of Additional Facts that Require Denial of Summary
Judgment at {| 32-39. Miller failed to respond to Ameritech’s arguments regarding his failure to

establish a prima facie case of retaliation under the ADA and failed to cite to any legal authority in

18


company truck, using ladders and safety equipment, possessing splicing abilities, and having
knowledge of color codes and the use of certain hand and power tools. These duties also required
the ability to climb poles and ladders if a bucket truck was unavailable or unsuitable for a particular
task and the ability to lift between 60 and 70 pounds. Team members generally assisted each other
on the rare occasions that they needed to lift heavy objects. Although Miller was not assigned to a
bucket truck, most of the work that Miller performed occurred in neighborhoods accessible by bucket
trucks, and 90 percent of his co-workers had bucket trucks. Miller’s job also did not require him
regularly to lift objects weighing up to 100 pounds, work in confined spaces, or use a pole or ladder
ona daily basis, but he understood that he needed to have the ability to perform those tasks on any
day that he might work.

On December 9, 1992, Miller injured himself at work while lifting a terminal box. He
subsequently underwent laparoscopic repair of a right inguinal hernia on January 21, 1993.
Following surgery, Miller suffered from severe groin and testicular pain, severe pain during and after
sexual intercourse, urine leakage, knee pain, back pain, hip pain, stomach ulcers, migraine
headaches, weakness in his right leg, back spasms, and fibromyalgia. He also began to suffer from
depression. These conditions persisted through 1997 and 1998.

Miller sought benefits under the IWCA on March 25, 1993 and was on workers’
compensation leave until January 14, 1994, when he returned to work at Ameritech on a temporary
light duty assignment. During this period, Miller’s duties included preparing reports, filing
documents, printing blueprints, and helping to prepare the workload for other employees.

During this period also, Miller perceived that his supervisor, Jevan J aszewski, acted towards

Miller ina hostile manner. Miller commuted approximately 90 minutes to and from work each day,

10


testimony in the absence of an explanation as to those discrepancies).

B. Miller’s Affidavit

Ameritech also raises numerous objections to Miller’s affidavit and moves that it be stricken.
First, Ameritech argues that Miller’s affidavit fails to satisfy Rule 56(e), Fed. R. Civ. P., which
requires that “{s]upporting and opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.” Fed. R. Civ. P. 56(e). Although Miller did not
have his affidavit notarized, he signed his affidavit under penalty of perjury attesting that the facts
contained in his affidavit were true. Miller’s affidavit is sufficient and Ameritech’s objections in that
regard are overruled. See 28 U.S.C. § 1746 (permits unswom affidavits if made “under penalty of
perjury” and verified as “true and correct”). Ameritech argues further that the matters asserted in
paragraphs 8, 9, 11, 13, and 14 were not based on Miller’s personal knowledge. The court disagrees.
Each paragraph refers to conversations in which Miller participated or his observations and
perceptions.

Second, Ameritech argues that the statements made by Miller in paragraphs 8, 9, ! 1,13, and
14 of his affidavit contain inadmissible hearsay. The court disagrees with Ameritech’s contention
that paragraphs 8, 9, and 11 are hearsay because Miller is not offering the content of these statements
for their truth. See Fed. R. Evid. 801(c) (““Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.”). For example, in paragraph 8, Miller states, “When I asked whether I could be transferred
to a work site closer to my home, J asezewski replied, ‘Just because you got hurt on the job and you

move you think we have to transfer you. I suppose if you moved to fucking Paris, we would have


Miller responded, “No. 1 mean, obviously I still had pain, and those things were slightly affected,
but majorly affected, no.” Def. Ex. 2 at 362. Miller was then asked, “So you felt you were not
substantially limited in any major life activity at the time of your discharge, right?” He answered,
“Correct.” Def. Ex. 2 at 362-363. Paragraph 101 states, “Miller was not substantially impaired in
any major life activity in 1998,” citing to Miller’s admission in his deposition. Miller, however,
disputes paragraph 101, citing to his affidavit. His affidavit states, in relevant part, “Since 1993,
including during 1997 and 1998, these conditions substantially impaired by [sic] ability to engage
in sexual relations, urinate, walk long distances, stand or sit for long periods of time, climb ladders
safely and drive long distances.” Pl. Ex. 1 at 46.

Itis well-settled that parties cannot create a genuine issue of material fact and avoid summary
judgment “by creating ‘sham’ issues of fact with affidavits that contradict their prior
depositions. ...” Ineichen v. Ameritech, 410 F.3d 956 at 963 (7 Cir. 2005), quoting Bank of Ill. v.
Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168-69 (7 Cir. 1996). In this case, Miller
attempts to blame his admission on the failure of Ameritech’s counsel to provide a definition of
“substantially limited” or “any major life activity.” See Pl.’s Response at3. Miller has not cited to
any authority for the proposition that counsel must define terms for deponents when the deponent
has not demonstrated a lack of understanding, nor has Miller even stated, in his affidavit or
otherwise, that he did not understand the questions. Accordingly, the court strikes Miller’s response
to paragraph 101 and paragraph 6 of Miller’s affidavit because his affidavit contradicts his prior
deposition testimony and Miller has not provided an explanation as to the discrepancies. See Stinnett
v. Iron Works Gym/Exec. Health Spa, 301 F.3d 610, 615 (7" Cir. 2002) (holding that district court

did not err in striking portions of the plaintiff's affidavit that conflicted with his prior deposition


support ofhis claim of retaliation under the ADA. Thus, Ameritech is entitled to summary judgment
on Miller’s claim of retaliation under the ADA.

Cc. State Law Claims

Because the court has dismissed the claims over which it had original jurisdiction, the court
declines to exercise its supplemental jurisdiction over Miller’s state law claim and dismisses it
without prejudice. See Bilow v. Much Shelist Freed Denenberg Arment & Rubenstein, P.C., 277
F.3d 882, 896 (7" Cir. 2001).

ORDER
For the reasons stated above, the court grants in part and denies in part Ameritech’s motion

to strike [#47] and grants Ameritech’s motion for summary judgment {#33]. This case is terminated.

ENTER: ; / LK

JOAN HUMPHREY LEFKOW
United States District Judge

Dated: September 14, 2005

19


anote written by Marty “OD” on July 21, 1993; exhibit 5 purports to be an interoffice memorandum
written by Kevin Kanter; exhibit 6 purports to be a letter from William Caputo; and exhibit 7
purports to be an EEOC determination. Miller appears to offer the contents of exhibits 2, 6, and 7
for the truth of the matter asserted therein without identifying any hearsay exception. Additionally,
while Miller is not offering the other documents for their truth, he had not made any attempt to
authenticate these documents. As such, the court will disregard these exhibits and their
corresponding paragraphs in Miller’s statement of additional facts. See Eisenstadt v. Centel Corp.,
113 F.3d 738, 742 (7" Cir. 1997) (“Hearsay is inadmissible in summary judgment proceedings to
the same extent that it is inadmissible in a trial.”); Woods v. City of Chicago, 234 F.3d 979, 988 (7"
Cir. 2000) (Normally, to demonstrate such trustworthiness and reliability at the summary judgment
stage, the party seeking to offer the business record must attach an affidavit sworn to by a person
who would be qualified to introduce the record at trial... .”); Martz v. Union Labor Life Ins. Co.,
757 F.2d 135, 138 (7" Cir. 1985) (“When a party presents evidence through . . . exhibits, they must
be identified by affidavit or otherwise made admissible in evidence.”).4
Il. FACTS STATED IN A LIGHT MOST FAVORABLE TO PLAINTIFF

A. Background

Ameritech hired Miller to work as a cable splicing technician on March 2, 1992. At that

time, cable splicing technicians worked in two-person teams, and their duties included driving a

4By contrast, Miller cites to defendant’s exhibit 6 as evidence that his attorney faxed Ameritech’s attorney a
copy of Dr. Elias’ notes from March 20 and September 2, 1997. See Plaintiff's Statement of Additional Facts at
129. Counsel for Ameritech showed this document to Miller during his deposition, and the line of questioning
surrounding this document during Miller’s deposition established that the document was in Ameritech’s possession.
In addition, the cover page was on the letterhead of Miller's attorney and directed to counsel for Ameritech. The
document also contains the marks of the date and fax number from the fax machine, demonstrating that the fax was
sent, There is sufficient evidence of the fax’s authenticity for the court to consider it for the purpose offered by
Miller in paragraph 29. See Miller v. Whipker, 2004 U.S. Dist. LEXIS 13935 at *12-13 (S.D. Ind. Mar. 31, 2004).

9


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BRENT L. MILLER,
Plaintiff,
No. 02 C 2286
v. Judge Joan H. Lefkow

AMERITECH CORPORATION,

Defendant.

weve eee

MEMORANDUM OPINION AND ORDER

Plaintiff Brent L. Miller (“Miller”) filed this action against defendant Ameritech Corporation
(“Ameritech”),' alleging that Ameritech violated the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 ef seq., by failing to accommodate his disability, by terminating him because of a
protected disability, and by retaliating against him for filing an EEOC complaint by terminating his
employment. Miller also asserts a state law claim of retaliatory discharge under the Illinois Workers’
Compensation Act (“IWCA”). Before the court are Ameritech’s motion for summary, judgment and
motion to strike. For the reasons stated below, the court grants in part and denies in part Ameritech’s
motion to strike and grants Ameritech’s motion for summary judgment.

SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
To determine whether any genuine fact exists, the court must pierce the pleadings and assess the

proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part

‘Miller incorrectly sued Illinois Bell Telephone Company, d/b/a Ameritech Illinois, k/n/a SBC Illinois as
“Ameritech Corporation.” For purposes of clarity, however, the court will refer to defendant as Ameritech.

(v)\


benefits but later determined that Miller was disabled and entitled to disability insurance on
December 22, 1994.

Miller underwent a residual physical functional capacity assessment on November 30 and
December 1, 1995. This assessment revealed that Miller’s exertion level was less than sedentary and
that he was unable to lift, carry, bend, stoop, kneel, walk, climb stairs or sit for more than 20 minutes
at atime. Miller submitted a Report of Continuing Disability to the SSA on January 20, 1998,
stating that he has a lifting restriction, that walking long distances or for a long period of time was
painful and nearly impossible, and that he still had the same limitations as set forth in his functional
capacity assessment. Miller also indicated that he might be able to perform light sedentary work and
undergo vocational rehabilitation but that he was unsure whether he would be able to do full-time
work. Miller never informed the SSA that his disability had ceased; yet the SSA determined that he
was no longer disabled as of May 1998 and stopped providing him benefits as of July 1998. Relying
on conversations that he had with an SSA employee, Miller had believed that he was entitled to
receive social security disability benefits until he was released to work or until he obtained gainful
employment.

Cc Medical Treatment and Assessment

Miller began receiving treatment from Dr. Sarmed Elias, an orthopedic surgeon, on May 16,
1995. On March 20, 1997, Dr. Elias noted the following on Miller’s chart:

[D]o [sic] to his lingering symptomatology and being as it is that he has plateaued,
I feel he has reached maximum medical improvement, and I would recommend that
he proceed to a vocational program in order for him to return to gainful

employment, which may also entail another work capacity evaluation down the line.

Def. Ex. 6. The vocational program to which Dr. Elias referred would have involved an evaluation

12


which caused him a great deal of pain. Asa result, he asked Jaszewiski if he could be transferred
to a work site closer to his home. In response, Jasezewski replied, “Just because you got hurt on the
job and you move you think we have to transfer you. I suppose if you moved to fucking Paris, we
would have to transfer you there as well.” Miller also asked Kevin Kanter, the Ameritech Human
Resources official responsible for administering workers’ compensation, whether he could be
transferred because the long commute was aggravating his medical condition. Kanter informed
Miller that he would not be transferred and also complained to Miller about the number of medical
bills that Ameritech had to pay for Miller’s treatment. On August 3, 1994, Miller returned to
workers’ compensation leave to undergo further surgery. On January 9, 1998, Miller settled his
workers’ compensation claim with ‘Ameritech. In the settlement, Miller and Ameritech agreed that
Miller was temporarily totally disabled from February 1, 1993 to January 13, 1994 and from August
3, 1994 to May 9, 1996. The parties agreed that Miller would receive workers’ compensation
payments for the remaining 29.8 years of his alleged incapacity to pursue his employment. Miller
later received a letter from Ameritech dated April 1, 1998, stating, “Ameritech has recently reviewed
the terms under the Workers’ Compensation Settlement contract you signed on January 9, 1998.
Due to your acknowledged incapacity to pursue employment, your service with Ameritech has been
terminated effective January 9, 1998.”

B. Social Security Disability Insurance Benefits

On March 18, 1993, Miller filed an Application for Disability Insurance Benefits with the
SSA. In his application, he claimed that he was unable to work because of his disabling condition.
He also agreed to notify the SSA if his medical condition improved such that he would be able to

work even ifhe had not yet returned to work. The SSA initially denied Miller’s claim for disability

i


to transfer you there as well.” Pl. Ex. | at {8. Miller’s question to Jasczewski is not hearsay because
he is asking a question, not making an assertion. See Fed. R. Evid. 801(a) (“A ‘statement’ is (1) an
oral or written assertion or (2) nonverbal conduct of a person if it intended by the person as an
assertion.”). As for Jasczewski’s reply, Miller is not offering it to prove the truth of the matter
asserted, i.e., that just because he got hurt on the job and moved Miller thinks that Ameritech has to
transfer him. Instead, Miller is offering these statements to show motive. See U.S. v. Robinzine, 80
F.3d 246 at 252 (7" Cir. 1996) (statements containing no assertion of fact that could be true or false
were not hearsay because their significance “was that they were said (i.e., that a ‘verbal act’
occurred) and how they affected [the listener], not the truth-value of what was said.”) (emphasis in
original); U.S. v. Bursey, 85 F.3d 293 at 296 (7" Cir. 1996) (“[S]tatements that are not offered to
prove ‘the truth of the matter asserted,’ but for some other legitimate purpose, do not qualify as
hearsay.”) (citations omitted). The court agrees, however, that paragraphs 13 and 14 contain
inadmissible hearsay. Accordingly, the court strikes the last sentence of paragraph 13 and paragraph
14 in its entirety. The stricken portions of these paragraphs are hearsay because they are out of court
statements being offered for the truth of the matters asserted, and Miller has not identified any
hearsay exception applicable to these statements.

Lon Ameritech’s Responses to Miller’s Statement of Additional Facts

In response to Miller’s statement of additional facts, Ameritech has raised numerous
objections on hearsay grounds and Miller’s failure to authenticate the documents to which his
statement of additional facts refers as evidence. See, e.g, Ameritech’s Response to Plaintiff's
Additional Facts at 107, 108, 116, 117, 128, 129, and 1 30. Exhibit 2 purports to be Miller’s semi-

annual performance review; exhibit 3 purports to be a surveillance report; exhibit 4 purports to be


and 103. Accordingly, the court strikes Miller’s responses and deems admitted the facts contained
in those paragraphs.

As for paragraph 74, it appears that Ameritech’s citation includes multiple citation errors.
Rather than citing to exhibit 36, paragraph 74 cites to exhibit 3. If this were its only error, the court
would not penalize Ameritech. Every other paragraph referring to Dr. Elias’s testimony refers to
exhibit 36, and all of the other paragraphs on that page refer to exhibit 36. Paragraph 74, however,
is not supported by exhibit 36, pages 112-113. Ameritech has not moved to file a corrected
statement of facts or amend its statement of facts. Accordingly, the court will not consider the facts
contained in paragraph 74 in its analysis because they are not supported by the cited materials. The
court also denies Ameritech’s motion to strike Miller’s responses to paragraphs 75, 76, and 95
because Miller’s responses sufficiently disputed the statements contained in Ameritech’s statement
of facts.

Ameritech objects to Miller’s inclusion of additional statements in his response to
Ameritech’s statement of material facts in fj 9, 18, 20, 50, 73, 100, 102, and 103. The court agrees
that {| 9, 18, 20, 50, and 100 contain additional facts and arguments in violation of the local rules.

See Malec, supra, 191 F.R.D. at 584. The court strikes such statements. The court has already

stricken Miller’s responses to paragraphs 73, 102, and 103 in their entirety.

splicing job: “Basically everything in section one [of Ameritech’s job briefs and qualifications for Cable Splicing
Technicians), general duties, and everything in physical requirements with the exception of you don’t every day run
into 100 pound things and you don’t every day work in confined spaces and you don’t every day use a pole ora
ladder,” Def. Ex. 2 at 81-82. Miller was then asked, “But you understood that they needed you to do those functions
and have the ability to do those functions on any given day that you might be working, right?” He responded, “Yes.”
Def. Ex, 2 at 82. Miller was asked further, “So you understood that those were part of the essential functions of the
job because you might have to do those on any given day, right?” Following an objection to the form of the
question, Miller answered, “Yes.” The numerous pages of testimony cited by Miller in response attempt to qualify
Miller's admission but do not contradict the evidence cited in Ameritech’s paragraph 21, Accordingly, the court
strikes Miller's response to paragraph 21.


Miller filed a charge of discrimination with the Illinois Department of Human Rights on July
16, 1997, alleging that his doctor had released him to return to light duty work and that Ameritech
refused to reinstate him. Miller also provided the March 1997 reports of Dr. Elias and Dr. Tyggum
to the EEOC. On April 2, 1998, the day after Ameritech informed Miller that his employment was
terminated, Ameritech filed its position statement with the EEOC in response to Miller’s charge of
discrimination.

ll, DISCUSSION

A. Disability Discrimination and Failure to Accommodate

The ADA prohibits discrimination “against a qualified individual with a disability because
of the disability of such individual in regard to job application procedures, the hiring, advancement,
or discharge of employees . . . and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a); Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001). In addition, “[t]he
Act also provides that an employee discriminates against a qualified individual with a disability by
‘not making reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability” McPhaul v. Bd. of Comm'rs of Madison County, 226 F.3d
558, 563 (7th Cir. 2000), quoting 42 U.S.C. § 121 12(b)(5)(A).

To establish a prima facie case of discrimination, Miller must show that (1) he is disabled
within the meaning of the ADA, (2) heis qualified to perform the essential functions of his job either
with or without reasonable accommodation, and (3) he has suffered from an adverse employment
decision because of his disability. Dvorak v. Mostardi Platt Assoc., Inc., 289 F.3d 479, 483 (7th Cir.
2002); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669-70 (7th Cir. 2000).

Under the ADA, a disability is (a) a physical or mental impairment that substantially limits

15


unable to perform a major life activity that the average person in the general

population can perform; or significantly restricted as to the condition, manner or

duration under which an individual can perform a particular major life activity as

compared to the condition, manner or duration under which the average person inthe

general population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1)(i). Factors to be considered in determining whether an individual is
substantially limited in a major life activity include (i) the nature and severity of the impairment, (ii)
the expected duration of the impairment; and (iii) the permanent or long term impact resulting from
the impairment. 29 CFR. § 1630.2())(2)(i)-Gii). Miller has failed to address any of these factors
and has offered only the conclusional assertion in his affidavit that his medical conditions
substantially impaired his ability to engage in sexual relations, urinate, etc. This assertion is
insufficient to create a genuine issue of material fact as to whether Miller was a qualified individual
with a disability under the ADA. See Basith v. Cook County, 241 F.3d 919, 928 (7* Cir. 2001)
(“[C]Jonclusory allegations and self-serving affidavits, unsupported by the record, will not preclude
summary judgment.”) (citation omitted).

Because Miller has failed to establish that any of his impairments substantially limited any
major life activity, he cannot establish a prima facie case for his claims of disability discrimination
and failure to accommodate.* Ameritech is therefore entitled to summary judgment on Miller’s
claims of disability discrimination and failure to accommodate.

B. Retaliatory Termination

Miller has presented no direct evidence that he was terminated in retaliation for filing a

charge with the EEOC. Thus, he must proceed under the indirect burden-shifting method of proof

® Because this issue is dispositive, the court finds it unnecessary to address Ameritech’s remaining
arguments with regard to Miller’s claims under the ADA.

\7


“shall consist of short numbered paragraphs, including within each paragraph specific references to
the affidavits, parts of the record, and other supporting materials relied upon to support the facts set
forth in that paragraph.” Part (b) of Local Rule 56.1 requires a party opposing summary judgment
to file a concise response to the movant’s statement of material facts. The rule is very clear that “all
material facts set forth in the statement required of the moving party will be deemed admitted unless
controverted by the statement of the opposing party.” Local Rule 56.1(b)(3)(B). The responding
party may not include additional facts in its response to the movant’s statement of material facts,
instead, the responding party must file a statement of additional facts. Local Rule 56.1(b)(3)(B).
See also Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (“Rule 56.1(b)(3)(B) provides the
only acceptable means of... presenting additional facts.”) (citation and internal quotations omitted)
(emphasis in original). Itis also improper to include legal argument or legal conclusions in the Local
Rule 56.1 statements of material facts and responses thereto. See Cady v. Miss Paige, Ltd., No. 02
C4867, 2004 U.S. Dist. LEXIS 7613, 2004 WL 1144044 (N.D. Ill. Apr. 30, 2004) (“Local Rule 56.1
.. emphasizes that it is inappropriate to include legal conclusions and/or argument in the Rule 56.1
statements of fact.”).

Ameritech objects to Miller’s responses to { 21, 48, 60, 61, 73-76, 79, 95, 102, and 103,
arguing that Miller failed to offer any admissible evidence that contradicts or rebuts the evidence
cited in Ameritech’s statement of material facts. The court agrees that Miller failed to offer

admissible evidence contradicting the evidence cited by Ameritech in {21 5348, 60, 61, 73, 79, 102,

3 For example, in paragraph 21 of its statement of facts, Ameritech states, “Miller considered the general
duties and physical requirements listed on ‘Ameritech job briefs and qualifications’ for Cable Splicing Technicians
to be essential functions of the job,” citing Miller's deposition at pages 81 and 82. In response, Miller disputed the
statement, citing to pages 81 through 84 and 110 through 116 of his deposition. The court’s review of the evidence
cited by Ameritech in support of the statements contained in paragraph 21 reveals that Miller responded as follows
when asked about which of the duties and physical requirements he considered to be essential functions of the cable

3


of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The party seeking summary
judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In response, the nonmoving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate
specific material facts showing that there is a genuine issue for trial. Jd. at 324; Insolia v. Philip
Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative
under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of
fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492
(7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party
as well as view all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc.,477
USS. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
I. MOTION TO STRIKE

Before deciding whether a genuine issue of material fact exists with regard to Miller’s claims,
the court must address Ameritech’s motion to strike and objections to Miller’s statement of
additional facts.”

A. Local Rule 56.1

Local Rule 56.1(a) provides that a motion for summary judgment must include, inter alia,
a “statement of material facts as to which the moving party contends there is no genuine issue and

that entitle the moving party to a judgment as a matter of law.” This statement of material facts

24 meritech also submitted a reply to Miller’s response to its Local Rule 56.1 statement of material facts.
The local rules do not contemplate such a reply. See Board of Educ. of Twp. High Sch. Dist. No. 211 v. Michael R.,
No. 02 C 6098, 2005 U.S. Dist. LEXIS 17450, at *4 (N.D. Ul. Aug. 15, 2005). Therefore, the court will disregard
Ameritech’s reply in deciding whether summary judgment is appropriate.

2


of Miller by a vocational rehabilitation expert to determine whether Miller could return to his job
as acable splicing technician or whether he needed to be retrained for another job.

As of March 20, 1997, Dr. Elias did not know whether Miller could return to work as a cable
splicing technician but he believed that Miller was able to perform sedentary work with certain
restrictions. These restrictions included not lifting more than 10 pounds, taking frequent breaks from
sitting and standing, not performing repetitive bending, stooping, or climbing, not climbing ladders
or climbing into manholes, and not walking more than a quarter mile. These restrictions remained
unchanged from March 20, 1997 until Miller’s termination in April 1998. As far as Dr. Elias knew,
Miller was unable to return to work as a cable splicing technician in 1997 and 1998, with or without
an accommodation.

On March 13, 1998, an assistant to Dr. Elias prepared and submitted a form to the SSA
regarding Miller’s claim for disability benefits. Dr. Elias reviewed the form and verified that it was
complete and accurate. The form stated that Miller had increased pain when sitting and standing for
long periods of time, he had difficulty walking more than 50 feet, and that he could not lift more than
10 pounds.

Miller also received chiropractic treatment from Dr. David P. Tyggum, a colleague of Dr.
Elias. In a Progress Note dated March 17, 1997, Dr. Tyggum highly recommended a vocational
rehabilitation program and a return to light duty employment for Miller. Other than the March 19,
1997 progress note written by Dr. Tyggum and the March 20, 1997 note written by Dr. Elias, Miller
is unaware of any other notes from his physicians releasing him to return to work.

On March 30, 1998, James A. Brooks, Ph.D, a licensed clinical psychologist, examined

Miller and prepared a report for the SSA regarding Miller’s claim for disability benefits. Dr. Elias

13


one or more of the major life activities of an individual; (b) a record of such impairment, or (c) being
regarded as having such an impairment. 42 U.S.C. § 12 102(2). Miller argues that his disability falls
within category (a), which requires that he show (1) he suffers from an impairment; (2) the
impairment affects major life activities; and (3) the impairment “substantially limits” such major life
activities. Bragdon v. Abbott, 524 US. 624, 631 (1998); Sinkler v. Midwest Prop. Mgmt. Ltd.
P’ship, 209 F.3d 678, 683 (7th Cir. 2000).

Inthis case, Miller admitted during his deposition that he was not substantially limited in any
major life activity. This admission is fatal to Miller’s claims under the ADA. Dr. Elias also testified
that Miller was not substantially limited in any major life activity.’ Miller has since asserted in his
affidavit opposing Ameritech’s motion for summary judgment that his medical conditions have
substantially impaired his ability to engage in sexual relations, urinate, walk long distances, stand
or sit for long periods of time, climb ladders safely and drive long distances, but these assertions
directly contradicted his previous admission and, accordingly, were stricken.

Even if the court were to consider his newly asserted claims of his impaired ability to engage
in what the court will assume are major life activities, Miller has failed to offer any evidence
establishing that he was substantially limited in any major life activity when compared to the general

population. The term “substantially limited” means

7Miller has since objected to the fact that counsel for Ameritech provided Dr. Elias with a narrow list of
major life activities. The court rejects Miller’s arguments in that regard. In response to Dr. Elias’ request for
clarification as to the meaning of a major life activity, counsel for Ameritech stated, “Major life activities can include
caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
Def, Ex. 36 at 21. Dr, Elias responded, “The answer is no.” /d. The question was clear that it was not an exhaustive
list of major life activities. Moreover, the court finds Miller’s selective exclusion of walking and working from the
major life activities mentioned to Dr. Elias a telling admission of the damage inflicted by Dr. Elias’ testimony to
Miller's claims under the ADA. See Plaintiff's Response to Defendant Ameritech’s Local Rule 56.1 Statement and
Statement of Additional Facts that Require Denial of Summary Judgment at {j 100.

16