identify “those portions of ‘th¢ pleadings, depositions, answers to interrogatories,

and admissions on file, togethpr with the affidavits, if any,’ which it believes
demonstrate the absence of a Benuine issue of material fact.” Celotex Colp. y.
Catrett, 477 U.S. 317, 323 (1ps6) (quoting Fed. R. Civ. P. 56(c)). This initial
burden may be satisfied by pfesenting specific evidence on a particular issue or by

pointing out “an absence of dvidence to support the non-moving party’s case.”Id. at

325. Once the movant has nfet this burden, the non-moving party cannot simply rest

on the allegations in the pleadings, but, “by affidavits or as otherwise provided for in

{Rule 56], must set forth spdcific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e).| A “genuine issue” in the context of a motion for

summary judgment is not sfnply a “metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co}, Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986).

Rather, a genuine issue of Froterial fact exists when "the evidence is such that a
reasonable jury could returp a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242,248 (1986); Insolia v. Philip Morris, Inc, 216 F.3d 596,

599 (7th Cir. 2000). The gourt must consider the record as a whole, in a light most

favorable to the non-movihg party, and draw all reasonable inferences that favor the

non-moving party. Anderkon, 477 U.S. at 255; Bay v. Cassens Transport Co, 212

F.3d 969, 972 (7th Cir. 2900).



City admits that McCoy s

involved in the decision m

Schuster v. Lucent Technoldgies, Inc, 327 F.3d 569, 573 (7* Cir. 2003, Under the

direct approach, the emploype may present direct evidence of discriminatory intent.

Id. Under the indirect met the employee is required to establish that he: “(1)

was over 40 years old; (2) yas meeting [her employer’s) legitimate job expectations;

(3) suffered an adverse employment action; and (4) was treated less favorably than

younger, similarly situated

employees.” Griffin v. Potter, 356 F.3d 824, 828 (7" Cir.

2004). If the employee mefts this burden, the burden of production then shifts to the

employer, who must show
Zaccagnini v. Chas. Levy

reason provided by the em}

h legitimate, nondiscriminatory reason for its actions.
Firculating Co, 338 F.3d 672, 676 (7th Cir. 2003). If the

ae
ployer appears legitimate, the burden rejuis to the

|
employee to establish prethxt by showing the employer was driven bya a

discriminatory reason or “fhe proffered reason is unworthy of credence Id. The

discharged and that he w:

issue of whether or not performing his job satisfactorily.

However, McCoy

ffered an adverse employment action when he was

|
i

a member of a protective class, being forty-seven at that

time. McCoy claims that he was only told to drive the truck and that he was not

| a
joad the hazardous materials and thus MoCoy contests the
| t | H

as utterly failed to point to similarly situated employees

_ that were treated more fayorably. McCoy, who was forty-seven tt the time, admits

foot
Poa]



quality asa disability undbr the ADA, the evidence fails to Support thet his condition

substantially limits a majde life activity. Based upon the evidence i in this case, no

reasonable trier of fact coyld conclude that McCoy suffered a disabili under ADA.

While McCoy does indicate that his condition affects his vision and breathing, he

does not claim that it limi

vision blurs because of a

him in any substantial way. (R. S.F. 46).

inus flare up, he takes his mediation and.“wi

en his

in eight to

nine minutes his vision isflear.” (S.F. 50). McCoy admits that he “never

experienced any blurred ypsion while driving and his sinus problem does not affect

his ability to drive.” (S.F.
of his daily activities.” (S
way limit his ability to pel
driver.” (S.F. 46).

There is an absencg

sinusitis and allergic thinfis were impairments that substantially lim

life activity and would w4
evidence before the court]

substantially limit any ac

rant him special protection under ADA,

po). He admits that his sinus problem “does|not affect any

IF. 49). He also admits that his condition ces not “in any

rform all the essential functions of his io as

of evidence to support McCoy’s claim thal

| i :
ited any major

aE | i
McCoy’s condition was under control and

vities, including driving, seeing, or breathing .

Hy

Consequently, no reasonle trier of fact could conclude that MeCoy

{

sinusitis and allergic thin

tis not to be a disability within the meaning
ai

ani]

di

a motor truck

his chronic

cq fording to the

id not

aid

§ chronic

f the ADA.

Q



‘| |683 (7th Cir. 2000). Once

disparate treatment or faily

|| F.3d 568, 572 (7th Cir. 20

L. Jai
The ADA prohibits q

the basis of a disability. 42

substantially limits one or|

42 U.S.C. § 12102(2). Thi
basis, irrespective of the 4
Stanley Tulchin Assoc,, I

While McCoy assq

lame or diagnosis of the impaiment See
ic, 91 F.3d 959, 962 (7th Cir. 1996).

ts that together, his chronic sinusi

DISCUSSION

imployers from discriminating against an employee on

U.S.C. § 12112(a). In order to make out aprima facie

case for ADA discriminatipn, the employee must first show that he asa a disability

_| |within the meaning of the ADA. Sinkler v. Midwest Prop. Memt. Lt 209 F.3d 678,

ithe employee has demonstrated that het a disability,

The ADA defines aldisability as “(A) a physical or mental i im airment that

more of the major life activities of ln in idual; @)a

; record of such an impairnfent; or (C) being regarded as having such impairment.”

| | re
finding of a disability should be made: ‘on a case-by-case

nd lergic thinitis



ther than one conclusory sentence stating that “t]he
i |

the reason for Williams’ discharge is a pretext for

McCoy offers no analysis
evidence demonstrates tha}

|
discrimination.” (Ans. 6).] Furthermore, McCoy fails to mention specifically what

“evidence” he is referring fo in his statement. The record is devoid of any evidence

that would indicate that thp City’ given reason for McCoy’s termination was a
pretext. McCoy admits arfd does not dispute pursuant to Local Rule 56.1 that

McCoy, Moore, and Wilsqn were the crew working on the truck and that “ of

hazardous materials were loaded onto the truck in violation of City Personnel Rules

and resulting in significant cleanup costs. (R SF 20, 22). In addition, McCoy

acknowledges that all three members of the truck crew were discharged Because of

id out

|
herefore we grant the motion for summary, judement on the

the incident (R SF 41). Thus, there is no indication that McCoy wes soa
because of a disability. T

ADA claim.

IL_ ADEA Claim

The City also seeks

prohibits employers from|

summary judgment on the ADEA claim. The ADEA

discrimination against employees because of their age. 29

U.S.C. § 623(a). For an amployee to defeat a motion fro summary judgment on an

ADEA claim, the employ;

be may use the direct or indirect method of proof,



Mirute Order Form (

ra ery 4
States District Court, Northern District of Hlinois
Name of Assigneft Jud _ i Sitting Judge if Othe
sie | Samuel Der-Yeghiayan | ine seu oe
CASE NUMREX 02 € 4973 DATE 7127/2004
CASE Don McCoy vs. City of Chicago
TITLE
(In the following box (a) indicate the party filing the motion, e-g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.

DOCKET ENTRY: -

qa Q Filed motion of [ use listing in “Motion” box above.]

(2) Qo Brief in support of motion due

(3) a Answer brief to motion due. . Reply to answer brief due. .

(4) QO Ruling/Hearing on set for at

(5) oO Status hearing[held/continued to] (set for/re-set for] on set for at

(6) a Pretrial conference(held/continued to] {set for/re-set for] on set for at :

Q) oO Trial{set for/re-set for] on at

@) a [Bench/Jury trial} [Hearing] held/continued to at

(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) ChLocal Rule 41.1 CHFRCP41(a)(1) O FRCP41(a)(2).

(0) [Other docket entry] For the reasons stated in attached memorandum opinion, the defendant’s
motion for summary judgment is granted in its entirety. All pending dates and motions are hereby stricken
as moot. Terminating case. Enter Memorandum Opinion.

ay (For further detail see order attached to the original minute order.]

No notices required, advised in open court,

‘No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

of | Docketing to mail notices.

Mail AO 450 form. 'NOD LoMeid «

Copy to judge/magistrate judge, ey Fi pauls ia'sa
courtroor oF:

Mw goustoom f Hd Le Ie none
intiale LOS ~ 6 Dattiinge received in
aOR rome



|

|
pee to Local Rule 56.
@pP!

approximately thirty-nine,

that he was discharged along with Moore, who was

and Wilson who was approximately forty-nine years old.

( R SF 17). McCoy does mpt point to any evidence that indicates someone under

forty filled his position aftr he was discharged. Again, as with the ADA claim,

(McCoy avoids the issue erjtirely and simply provides a conclusory statement arguing

ithat the given reason is a pretext. However, as with the ADA claim, the similarly
|

McCoy failed to point to

also failed to point to evi

ADEA claim.

Based on the foreg|

judgment in its entirety.

Dated: July 27, 2004

{

McCoy was a pretext. Thprefore, we grant the motion for summary judgment on the

situated employee elemenf of the ‘prima facie case is not an optional one. Therefore,

fficient evidence to make out aprima facie case. McCoy

ce to show that the City’s given reason for discharging

to
ih
nil

CONCLUSION

bing analysis, we grant the City’s motion for summary
aa

'
Samuel Der-Yeghiayan $ | f )

United States District Court Judge

fy

10


Since McCoy must show h¢ has a disability before he can prove the rest of hisprima

facie case, which he fails td

Also, even if McCoy

could not establish the rest
claim may defeat a motion

or the indirect method of p

iif i
| |
prima facie! case for an AD

do, he has failed to establish a violation f the ADA.

could show that she was disabled under the ADA she

| |

lof herprima facie case. A plaintiff bringing an ADA
for summary judgment under the direct method of proof
oof. Hoffman, 256 F.3d at 573. In order to make out a

A claim a plaintiff must establish that: “w) she is disabled

within the meaning of the ADA; (2) she was meeting the legitimate ‘employment

@) similarly situated emp!

yees received more favorable ail

expectations of her ml (3) she suffered an adverse employment action; and

Id, at 574. If

the plaintiff establishes azyima, Jacie case the burden shifts to the defendant to

provide a legitimate non-discriminatory reason for its actions and if the defendant

Provides such areason thq

reason is a pretext for disqrimination. Jd. at 577.

McCoy does not have sufficient evidence to proceed under the

of proof and wil neo to

any similarly stated employees that were treated more favorably.

the instant motion MoCo fails to address the element at all, choos

burden shifts back to the plaintiff to show that the given

direct method

roceed under the indirect method. Met oy fails to point to

his answer to

til
ing to focus only

on whether or not there was a pretext. In support of McCoy’s sai of a pretext



McCoy alleged that he was discriminated against because of a disability and his age.
At the time of his discharge, McCoy was forty-seven years old, In 2000, an allergist
diagnosed McCoy with allergic rhinitis and chronic sinusitis wd began treating him
with immunotherapy and Medication. By July 2000, the allergist determined that
McCoy no longer exhibitdd allergic rhinitis and his sinus condition was improving
with treatment.
On May 30, 2002, fhe EEOC issued a Notice of Right to Sue. McCoy then
filed this two count lawsujt on July 15, 2002 claiming the City failed to provide
reasonable accommodatiqn and discharged him because of his disability in violation
of the Americans with Difabilities Act (“ADA”), 42 U.S.C. § 12101e seq., (Count

I), and intentionally discriminated against him because of his age in violation of the

Age Discrimination in Eraployment Act (“ADEA), 29 U.S.C. § 62 let seq., (Count

ID.

LEGAL STANDARDS i:

Summary judgmert is appropriate when the record, viewed in the light most

favorable to the nonmovihg party, reveals that there is no genuine issue as to any
material fact and the movgng party is entitled to judgment as a matter of law. Fed. R.

|
Civ. P. 56(c). In seekingla grant of summary judgment the moving party must
| |

3 rf



Gregory Wilson (“Wilson”), who were assigned to work on the back of the truck.
Along the pickup route, sever§l fifty-five gallon drums filled with paint and thinner
were loaded onto the truck, although McCoy denies loading them himself.
According to McCoy, the trugk’s equipment jammed and when he exited the truck,
he observed the drums. MeChy’s supervisor Huber Newkirk (“Newkirk”) then
arrived at the scene, He smelled the paint and noticed some paint leaking, but did
not investigate the contents qf the truck further. Later, the drums carried by

McCoy’s truck were taken tg a dump site.

Following the incider, discharge proceedings were brought against McCoy,
Moore and Wilson by the Department. McCoy was charged with “causing and/or

allowing containers of hazafdous material to be placed onto the city vehicle he was

operating and/or allowing of causing the hazardous material to be dumped into a
disposal facility where such dumping was not authorized . . . in violation of various
Personnel Rules.” (SF 31). After submitting a response to the charges against him,
McCoy was formally discharged. McCoy appealed to the Personnel Board of the
City, and after a hearing in which McCoy was represented by counsel, the Personal
Board upheld McCoy’s discharge.

After his discharge, on October 15, 2001, McCoy filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”).


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

EASTERN DIVISION

DOCKETED

DON MCCOY, ) JUL 2 8 2004
)
Plaintiff, )
)

v. ) No. 02 C 4973
)
CITY OF CHICAGO., )
)
Defendant. )
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant City of Chicago’s (“City”)
motion for summary judgment. For the reasons stated below, we grant the motion for

summary judgment in its entirety.

BACKGROUND
Plaintiff Don McCoy (“McCoy”) began working for the City in the
Department of Streets and Sanitation (“Department”) in 1976. In 2001, McCoy
worked as a garbage truck driver for the Department’s 17th Ward. On January 18,

2001, McCoy drove a garbage truck with laborers Keith Moore (“Moore”) and

| o]