COUNT 3

Count 3 of Wilcox’s complaint, entitled “Retaliation,” alleges
that Jewel violated 42 U.S.C. § 12203 when “it terminated
Wilcox’ {s] employment on December 1998 after he was injured at work
and requested work~place accommodations.” (Compl. 4 36.) Wilcox
“may assert such a claim even if the underlying disability claim
fails.” Williams v. Eastside Lumberyard & Supply Co., 199
F,Supp.2d 1104, 1119 (S.p. Il]. 2001).

The ADA prohibits retaliation “against any individual because
such individual has opposed any act or practice made unlawful by
{the ADA] or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203. “A
plaintiff bringing a retaliation claim may prevail by presenting
either direct evidence of discrimination or indirect evidence under
the purden-shifting method set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” Silk v. City of Chicago, 194 F.3d
788, 799 (7th Cir. 1999). As Wilcox has provided no direct
evidence of discrimination, he must make out a prima facie case of
retaliation by “show[ing] that (1) he engaged in statutorily
protected expression; (2) he suffered an adverse action by his
employer; and (3) there is a causal link between the protected
expression and the adverse action.” Yellow Freight System, Inc.,

253 F.3d at 952.


- had a sore back.” (Wilcox Dep. at 77.) In failing to respond to
Jewel's summary judgment motion, Wilcox has by necessity failed to
put forth any evidence from which a jury could conclude that on
June 8, 1998 Wilcox was “substantially limited in the major life
activities of . . . standing and walking” (Compl. 9 9), and the
evidence in the record in fact supports the opposite conclusion.
Accordingly, Wilcox has not shown that he could meet his ultimate
burden of showing that he was “disabled” under the ADA as of
June 8, 1998.
Events After September 16, 1998

Even to the extent Count 1 is meant to encompass events on or
after September 16, 1998, it would still fail. As noted above, the
ADA only protects “qualified individuals with a disability.”
42 U.S.C. § 12112(a) (emphasis supplied). A “qualified individual
with a disability” is defined, in relevant part, as “an individual
with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8); see also
42 U.S.C. § 12111(9) (providing non-exclusive list of types of
“reasonable accommodation”), “[T]he plaintiff has the burden of
showing that he can perform the essential functions of the job,
with or without a reasonable accommodation.” Basith v. Cook
County, 241 F.3d 919, 93] (7th Cir. 2001); see also McCreary v.

Libbey-Owens-Ford Co., 132 F.3d 1159, 1164 (7th Cir. 1997) (“The

-~13-


respond and the consequences for failing to do so. See ND. Il.
Local R. 56.2; Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992).
Despite receiving this notice, Wilcox did not file a response to
Jewel's summary judgment motion. Federal Rule of Civil
Procedure $6(¢) is clear that once a summary judgment motion “is
made and supported as provided in [Rule 56],” the nonmoving party
must respond by “set[ting]) forth specific facts showing there is a
genuine issue for trial. Tf the [nonmoving] party does not so
respond, summary judgment, if appropriate, shall be entered against
the [nonmoving] party.” FrEp.R.Civ.P, 56(@); see also Waldridge v.
American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (Under
Rule 56(e), “if the non-movant does not come forward with evidence
that would reasonably permit the finder of fact to find in her
favor on a material question, then the court must enter summary
judgment against her.” (emphasis in original)).

Under Local Rule 56.1(a)(3) of the Local Rules of the United
States District Court for the Northern District of Illinois, a
party moving summary judgment must submit a statement of material
facts in the form of short numbered paragraphs supported by
specific references to the factual record, Jewel has done so.
Under Local Rule 56.1(b) (3), the nonmoving party must in turn
submit a response to each such paragraph, including (in the case of

disagreement.) specific references to the factual record. Wilcox

has failed to do so. Wilcox’s dereliction carries drastic

a &n


Because Wilcox’s employment was terminated, the second element
is satisfied. As for the first element, the only statutorily
protected expression that Wilcox points to is his alleged “request[
for] work-place accommodations.” Although the statutory text
itself does not appear to support the notion that requesting a
reasonable accommodation is a protected activity, see WilJiams, 190
F.Supp.2d at 1120, “the Seventh Circuit has in the past treated an
individual’s request for an accommodation as statutorily protected
activity,” Id. (citing Silk, 194 F.3d at 800-01 and Contreras, 237
F.3d at 765). Based on the practice of the Seventh Circuit (and
other federal courts that have considered the matter, see Williams,
190 F.Supp.2d at 1120), the court will likewise assume that
requesting a reasonable accommodation is a protected activity for
purposes of 42 U.S.C. § 12203. The court will also assume, for
purposes of Count 3, that Wilcox made such a request.

Wilcox's retaliation claim founders on the third element. Not
only has Wilcox failed to offer any argument or facts to support
finding a causal link between any putative request for
accommodation and the termination of his employment, he admits that
Jewel terminated his employment on December 12, 1998 because he had
exhausted his 52 weeks of paid disability leave and was still not
able to perform his job with or without a reasonable accommodation.
(Det's 56.1 Stmt. G@i 47-48.) This is a legitimate,

nondiscriminatory reason for Wilcox’s termination, and Wilcox has

- 20 -


able to perform the essential duties of his job as a bakery clerk
without a reasonable accommodation. Nor has Wilcox pointed to any
evidence that would create a genuine issue of material fact as to
whether he could perform his job with a reasonable accommodation

a task that, given Wilcox’s admitted incapacitation during this
time, would seem well-nigh impossible. See EEOC v. Yellow Freight
System, Inc., 253 F.3d 943, 952 (7th Cir. 2001) (“Except in the
unusual case where an employee can effectively perform all work-
related duties at home, an employee who does not come to work
cannot perform any of his job functions, essential or otherwise,”
(internal quotation marks omitted)). Even as a threshold matter,
Wilcox would have had to come forward with evidence - which he did
not do here - showing that he made a specific request after
September 16, 1998 for a reasonable accommodation that would enable
him to perform the essential duties of his job as a bakery clerk.
See Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d
694, 899 (7th Cir. 2000) (“(T]he standard rule is that a plaintiff
must normally request an accommodation before liability under the
ADA attaches.”).

Based on the admitted facts in this case, the only possible
accommodations that Wilcox could even be considered to have
requested after September 16, 1998 was reassignment to either (i)
a bakery crew chief position in Jewel’s store in Buffalo Grove,

Tllinois or (ii) a security officer position in Jewel’s store at


working) and (iii) he was simply awaiting further surgery.
(Def’s 56.1 Stmt. @ 45.)

Under Jewel’s leave policy in effect at that time, Wilcox was
entitled to 52 weeks of paid disability leave. However, Jewel
would not continue to employ an individual who could not perform
his job, with or without a reasonable accommodation, for more than
52 weeks. Under Jewel’s leave policy, Wilcox’s return to work for
three hours on June 8, 1998 did not entitle him to a fresh 52 weeks
of paid leave. Accordingly, because Wilcox had exhausted his 52
weeks of disability leave and was still unable to perform his job
duties, Jewel terminated Wilcox’s employment on December 12, 1998.
(Def’s 56.1 Stmt. @ 48.) At the time Wilcex’s employment was
terminated, there were no other open positions at Jewel for which
Wilcox qualified which would have accommodated his medical
restrictions, {Def’s 56.1 Stmt. U1 47, 53.)

DISCUSSION
Underlying EEOC Charge

The ADA has expressly adopted the enforcement procedures
governing Title VII actions, including all filing procedures and
timing requirements. See 42 U.5.C, § 12117(a). In Jllinois, an
aggrieved person must file a charge of discrimination under Title
VII with the Equal Employment Opportunity Commission (“KEOC”)
within 300 days of the alleged unlawful employment practice. See

42 U.S.C. § 2000e-5(e); Patt v. Family Health Systems, Inc., 280


A bakery clerk has many and varied duties, among them preparing and
processing bakery products for sale, filling display cases and
replenishing stock on shelves. (Def’s 56.1 Stmt. 71 8-12, 31; Rosy
Aff. Exh. A.) Some of the central duties of a bakery clerk are
physically demanding, including transporting pallets and unloading
boxes of bakery products, lifting trays of bakery products onto and
between racks, flipping over large steel or iron baking pans full
of baked bread, and occasionally lifting buckets of icing weighing
as much as 50 pounds. (Id.) The written job description for a
bakery clerk requires the ability “constantly” to lift or carry up
to 50 pounds, and “constantly” to push or pull up to 300 pounds.
(id. )

On October 14, 1997, Wilcox suffered a back injury while
loading and unloading frozen bakery products into and out of a
truck. Wilcox continued to work until December 11, 1997, at which
point he obtained a doctor's slip indicating that he “just couldn’t
work anymore.” (Def’s 56,1 Stmt. 7 15; Wilcox Dep. at 64-65.) On
February 27, 1998, Wilcox underwent a surgical procedure for a
herniated disk and injured nerve known as a decompressive
laminectomy. Approximately two months after this surgery, Wilcox
experienced an almost 50% reduction in his symptoms and Dr. Foydel,

.

Wilcox’s treating physician, characterized Wilcox’s case as “just
a garden variety injury, surgery and recovery, nothing unusual.”

(Def’s 56,1 Stmt. @ 15; Foydel Dep. at 64-65.) On May 28, 1998,


consequences, as “(a]ll material facts set forth in the statement
required of the moving party will be deemed to be admitted unless
controverted by the statement of the opposing party.” Local
Rule 56.1(b) (3) (8) (emphasis supplied).

The Seventh Circuit has explicitly “endorsed the exacting
obligation[s] these [local] rules impose on a party contesting
summary judgment” and has “repeatedly upheld the[ir] strict
enforcement .. . , sustaining the entry of summary judgment when
the non-movant has failed to submit a factual statement in the form
called for by the pertinent [local] rule and thereby conceded the
movant’s version of the facts.” Waldridge, 24 F.3d at 922. As the
Seventh Circuit has acknowledged, “district courts are not
obligated in our adversary system to scour the record looking for
factual disputes.” Id. Likewise here, the court will not scour
the record on Wilcox’s behalf. Rather, the court accepts as
undisputed Jewel’s properly supported statements of material fact
contained in its Local Rule 56.1(a) (3) Statement of Uncontested
Material Facts. The court’s task then becomes to determine whether
“given the undisputed facts, summary judgment is proper as a matter
of law.” Wienco, Inc. v. Katahn Assocs., Inc., 965 F.2d 565, 568
(7th Cir. 1992).

BACKGROUND
Wilcox worked as a bakery clerk in Jewel’s bakery department

from September 1989 until he was terminated on December 12, 1998.



3400 Western Avenue in Chicago, Illinois. Although “the ADA
reguires reassignment to a vacant position when the employee is no
longer able to perform the essential functions of her employment,
even with a reasonable accommodation,” the employee must he
“qualified for the vacant position.” McCreary, 132 F.3d at 1165.
Furthermore, “{aJn employer is not obligated to provide an employee
the accommodation he requests or prefers, the employer need only
provide some reasonable accommodation.” Gile v. United Airlines,
Inc., 95 F.3d 492, 499 (7th Cir, 1996). “An employer is not
obligated to ‘bump’ another employee in order to create a vacancy
for the disabled employee. And the employer does not have to
create a new position for the disabled employee.” McCreary, 132
F3.d at 1165.

Importantly, Wilcox bears the burden of showing that, at the

time he was terminated, “a vacant position exist[ed] and... [he]
{wa]s qualified for that position.” Id. In the instant case,
Wilcox outright admits that (i) “[t]he bakery crew chief position
for the Jewel store in Buffalo Grove, Illinois was filled at the
time [he] was terminated” (Def’s 56.1 Stmt. 9 53), (ii) “{he] was
not qualified to perform the essential functions of [the security
officer] position” (Id.}, and (iii) “there was no other open
position for which [he] was qualified which would have accommodated

his restrictions” (Id.). Accordingly, summary judgment on Count 1

in favor of Jewel is appropriate.

~ 1g -


After working three hours on June 8, 1998, Wilcox then
obtained a series of doctor’s slips indicating that he was unable
to return to work. (Def’s 56.1 Stmt. { 36; Wilcox Dep. Exh. 15;
Foydel Dep. Exh. 18, 20.) The latest doctor's slip in the record,
dated August 24, 1998, reads simply: “This patient is unable to
return to work at this time.” (Foydel Dep. Exh. 20.) Wilcox
testified at his deposition that between August 1998 and
December 4, 1998, he was “totally restricted from work.” (Wilcox
Dep. at 111.) Wilcox stated that he “might have been able to do
something, but [he is] not sure what.” (Id.)

On December 4, 1998, a diagnostic procedure called a discogram
was performed on Wilcox’s back to determine whether spinal fusion
surgery would be beneficial. The discogram was positive. Dr.
Foydel opined that, as of December 4, 1998, there were large
portions of Wilcox’s job description that Wilcox simply could not
perform, or that he would be physically compromised in performing.
(Def's 56.1 stmt. 4 43; Foydel Dep. at 39.) Dr. Foydel further
testified that Wilcox would “risk doing further harm to himself if
he attempted to perform all of {his] job functions[,] especially
lifting.” (Foydel Dep. at 39.) On December 21, 1998, Wilcox
applied for Social Security Disability benefits. In his
application, he averred that (i) he was entirely unable to stand,
bend or lift, (ii) his physical condition had not improved since

December 11, 1997 (the date Wilcox reported that he stopped


Morus Order Tone (Qo

fL) United States District Court, Northern District of Lilino

Nakne of tCaizned Jidge Tlarry D. Leinenweber Sitting Judge if Other
or Magistrate Judge oe than Assigned Judge
se NUMBER 01 C2138 DATE T1/22/2002
CASE Anthony Wilcox vs. American Stores, d/b/a Jewel-Osco
TITLE
{hn the following box (a) indicate the party filing the motion, ¢.. plaintiff, defenelant, 3rd party plaintiff. ana (bh) state briefly the uature
MOTION: al the uiotion belug presented |
DOCKET ENTRY:
(ap) Oo Viled motion of [ use listing in “Motion” box above,]
(2) Oo Bricf in support of motion due
(3) o Answer brie! lo motion duc _- Reply to answer brief due
(4) o Ruling/Hearing on set for att |
(5) a Status hearing[held/continued to] [set for/re-set for] on _setfor at)
(6) Oo Pretrial couferencefheld/continued to] [set for/re-set for} on setfor Lat
(7) uy Trialjset for/re-set forfon wt.
(8) i [BenchJury tial] [Hearing] held/continued to at,
(9) a This case is dismissed [with/without] prejudice and without costs /by/agrcement/pursuant to]
COFRCP4(m) Local Rule 41.1 CPREPAI(a)) =O ERCPA1(a)(2).
ee | [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Delendants’ Motion
tor Summary Judgment is GRANTED and this case is DISMISSED in its entirety
(i) [For further detail see order attached to the original minute order.)
No notices required, advised in open court Document.
. . Number,
No polices required dnupher of wots
Notices mailed by indge’s stall
Nolilied counsel by telephone. pushed
J | Docketing to mail notives oN
Y | Mail AG 450 torn “o oss Sy
—— LYNOD LOYLSID"S'A cen oy
Copy lu judge/uayistrate judge Wa
courte 2 AON 20 ota nied ice
war deputy’s LUG Hd |
initials
snag dyin



timely charge of discrimination with the EEOC is subject to the
doctrines of “waiver, estoppel and equitable tolling,” Zipes v.
Trans World Airlines, 455 U.S. 385, 293 (1982). Wilcox has not
provided any legal argument, hor pointed to any facts, that would
justify their application in this case. See Maddox v. Capitol
Bankers Life Ins. Co., 4997 WL 47449 at *8 (N.D. Ill. Jan. 30,
1997) (plaintiff bears purden of justifying application of waiver,
estoppel or equitable tol ling). Accordingly, to the extent Count 1
is tied to the events of June 8, 1998, it is time-barred.

Even if Count 1] were not time-barred, Wilcox has failed to
demonstrate that there is a genuine issue whether he suffered from
a “disability” under the ADA on June 8, 1998. “the ADA prohibits
discrimination by covered entities, including private employers,
against qualified individuals with a disability.” Sutton v. United
Air Lines, Inc., 527 U.S. 471, 477 (1999); 42 U.8.C. § 12112{a).
A “disability” is defined in the ADA as “a physical or mental
impairment that substantially limits one or more . - - major life

activities.” AQ U.S.C. § 12102(2) (A); see also 45 C.F.R.

§ 84.3(9) (2) (44)

isting examples of “major life activities”). Tt
is Wilcox’s “burden on summary judgment to show he could come up
with evidence to show that he could meet his ultimate burden of
showing an ADA recognized disability.” Contreras V. Suncast COrp.,

237 F.3d 756, 763 (7th Cir. 2001).


F.3d 749, 752 (7th Cir. 2002). “Failure to file within the
allotted time renders the charge untimely and the claimant is
precluded from bringing an action in court.” Fairchild v. Forma
Scientific, Inc., 147 F.3d 567, 574 (7th Cir. 1998); see also
Nat’l. R.R, Passenger Corp. v. Morgan, 536 U.S. _, 122 $.Ct.
2061, 2070 (2002) (“A {Title VII] claim is time-barred if it is not
filed within [Title VII] time limits.”). “The period begins to run
from the date of the adverse personnel action.” Fairchild, 147
F.3d at 574. Because Wilcox filed his underlying EEOC charge on
July 13, 1999, any alleged discriminatory conduct by Jewel before
September 16, 1998 - which, incidentally, is also the date Wilcox
identified in his EEOC charge as the “earliest date of alleged
violation” (Def’s 56.1 Stmt. 97 25)) ~- is time~barred and cannot
form the basis of his ADA suit.
COUNT_1
Events Prior to September 16, 1998

Count 1 of Wileox’s complaint, entitled “Failure to
Accommodate,” alleges that Jewel violated 42 U.8.c-. § 12112 “in
part because it failed to offer Wilcox alternate work arrangements,
including a light duty assignment or allowing others to do the
heavy lifting required by his job when he return [sic] to work.”
(Compl. © 25.) The record is clear that, following Wilcox’s
February 27, 1998 surgery, he only returned to work once — on

June 8, 1998. (Def’s 56,1 Stmt. § 23.). Although the filing of a

~10-


Dr. Foydel examined Wilcox again and formed the opinion that he
could return to work full-time starting June 1, 1998 with a 30-
pound lifting restriction. Dr. Foydel wrote a note to that effect
(which Wilcox gave to his manager), and indicated that the lifting
restriction would last until July 1, 1998 and then be reevaluated.

Wilcox returned to work on June 8, 1998 at 5:00 a.m. After
approximately two-and-a-half hours on the job, Wilcox complained of
back pain to his manager and was allowed to sit down and rest,
Following this short break, Wilcox “realized [he] couldn’t go on
with doing the work that [he] was supposed to be doing down there
[in the bakery department]. It was just too much for [him] .”
(Def’s 56.1 Stmt. 9 28; Wilcox Dep. at 92.) Wilcox asked his
manager if he could be entirely relieved of his baking duties and
instead fill out administrative paperwork. Wilcox’s manager
declined and suggested that “Cilf [Wilcox] can’t handle {his] 0b,
[to] go up and talk to the store manager.” (Wilcox Dep, at 88.)
Wilcox did approach the store manager, telling him “I can’t bake
anymore,” and asking 4£ he could instead do paperwork for any other
department in the store. (Def's 56.1 Stmt. I 28; Wilcox Dep. at
88.) The store manager also declined and advised that if Wilcox
was unable to perform the duties of his job, that he “go home and
get another note from [his] doctor and pring it to [the store
manager] right away.” (Wilcox Dep. at 88.) At 8:00 a.m., Wilcox

left for the day.



come forward with no evidence that it was in any way pretextual.

See Silk, 194 F.3d at 799. Accordingly, summary judgment on

Count 3 in favor of Jewel is appropriate,

6fendants’

For the foregoing reasons, MovYion for Summary

Judgment is GRANTED and this case/is DISMISSED/in its entirety.

IT IS SO ORDERED.

—

“rat ry D. Leinenweber, Judge
United States District Court

Date: 00,

- 21 -



interrogatories, and admissions on file, together with the
affidavits,” if any, that the moving party believes demonstrate an
absence of a genuine issue of material fact. Celotex v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has met this
burden, the nonmoving party may not rest upon the mere allegations
contained in the nonmoving party’s pleading, but rather “must set
forth specific facts showing that there is a genuine issue for
trial.” FED.R.Civ.P. 56(e); Becker v. Tenenbaum-Hili Assoc., inc.,
914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989). Accordingly, summary
judgment is mandatory “against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex, 477 U.S. at 322. In such a situation,
there can be “‘no genuine issue as to any material fact’, since a
complete failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other facts
immaterial.” Id. at 323.
Failure to Respond to Motion for Summary Judgment

Although Wilcox was not represented by counsel in connection
with the instant summary judgment motion, Jewel has provided him
with a document, captioned “Notice To Pro Se Litigants Opposing
Summary Judgment,” explaining in legally sufficient terms the

purpose of a summary judgment motion, Wilcox’s obligations to



plaintiff bears the burden of placing himself within the confines
of the statute by at least creating a genuine issue of material
fact as to whether he is a “‘qualified individual with a
disability.’”). “The determination as to whether an individual is
a ‘qualified individual with a disability’ must be made as of the
time of the employment decision.” Bombard v. Ft. Wayne Newspapers,
Inc., 92 F.3d 560, 563 (7th Cir. 1996).

To determine the essential functions of a position, a court
may consider, but is not limited to: (i) the employer's judgment
as to which functions are essential; (ii) written job descriptions
prepared before advertising or interviewing applicants for the job;
(iii) the amount of time spent on the job performing the function;
{iv) the consequences of not requiring the incumbent to perform the
funetion; {v) the terms of a collective bargaining agreement; (vi)
the work experience of past incumbents in the job; and/or (vii) the
current work experience of incumbents in similar jobs. 29 C.F.R.
§ 1630.2(n) (3). The uncontradicted evidence in the record
indicates that the essential functions of a bakery clerk include,
among other things, “transporting pallets of bakery products,”
“unload[ing] boxes from pallets and stor{ing them) in
freezers,” “removing boxes of bakery product from the freezer,”
lifting trays full of bakery products onto and between racks,
flipping over large steel or iron baking pans full of baked bread,

and occasionally lifting buckets of icing weighing as much as 50

- 14 -


Petition and Order which represented that he was “temporarily
totally disabled from 10/5/97 through 4/5/01.” (Def’s 56,1 Stmt.
9 50; Tracy Aff. Exh. A.) In Wilcox's pre-hearing memorandum in
support of Social Security disability benefits, Wilcox, through his
attorney, represented that “[bly October 22, 1998, it was apparent
that there would be no improvement in [his] pain from conservative
therapy [and he] was prepared for additional surgery.” (Def’s 56.1]
Stmt. %@ 44; Soc. Sec. Adm. File 325-70-5753 at 5260.) In Wilcox’s
December 21, 1998 application for Social Security disability
benefits, he averred that (i) he was entirely unable to stand, bend
or lift, (ii) his physical condition had not improved since
December 11, 1997 (the date Wilcox reported that he stopped
working) and (iii) he was simply awaiting further surgery. (Detf’s

y

56.1 Stmt. J 45.) As the Supreme Court has held, because “a
plaintiff’s sworn assertion in an application for disability
benefits that she is, for example, ‘unable to work’ will appear to
negate an essential element of her ADA case. . . an ADA plaintiff
cannot simply ignore the apparent contradiction that arises out of
the earlier SSDI total disability claim. Rather, she must proffer
a sutficient explanation.” Cleveland v. Policy Mgmt. Sys. Corp.,
526 U.S. 795, 806 (1999). In this case, Wilcox has proffered no
explanation whatsoever.

Given these undisputed facts, it is clear that between

September 16, 1998 and at least December 12, 1998, Wilcox was not


judgment pursuant to Federal Rule of Civil Procedure 56. For the
following reasons, the court grants the motion and dismisses this
action in its entirety.

MOTION FOR SUMMARY JUDGMENT

MOTION FOR SUMMARY “ier
Legal Standard

Summary Judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fep.R.Civ-P. 56(c). A fact is
“material” if it could affect the outcome of the suit under the
governing law; a dispute is “genuine” where the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party. Anderson v- Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Supreme Court has emphasized “that at the summary judgment
stage the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is
a genuine issue [of material fact] for trial.” Id. at 249, In
performing this task, all factual disputes are resolved, and all
reasonable inferences are drawn, in favor of the nonmoving party.
Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir.
2002).

The burden is initially upon the movant to identify those

portions of “the pleadings, depositions, answers ta


BILED

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

EASTERN DIVISION NOV 21 200?
ANTHONY WILCOX, dudge Harry D. Leinenweber
4S. District Court
Plaintiff,
Case No, 01 C 2138
Vv.
AMERICAN STORES, d/b/a JEWEL- Hon. Harry D. pei x

osco,
NOV 2% 2002

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Anthony Wilcox (“Wilcox”) brings this complaint
against Jewel Food Stores, Inc. (“Jewel”) - erroneously referred to
in Wilcox'’s submissions as American Stores d/b/a Jewel-Osco ~
alleging violations of the Americans with Disabilities Act of 1990
(codified at 42 U.S.C, § 12101 et seq.) (the “ADA”). Wilcex's
complaint originally contained four counts: (1) failure to
accommodate in violation of 42 U.S.C. § 12112 (“Count 1”); (2)
disparate impact in violation of 42 U.S.C, § 12112 (“Count 2”); (3)
retaliation in violation of 42 U.S.C. § 12203 (“Count 3”); and (4)
wrongful discharge in violation of Illinois public policy
(count 4”), On September 27, 2001, the court granted Wilcox’s
oral motion to withdraw Count 2. On October 26, 2001, the court
granted Jewel's motion to strike paragraph 37 of the complaint
(containing certain putative class claims) and to dismiss Count 4.

Presently before the court is Jewel's unopposed motion tor summary


Wilcox claims that “[a]fter treatment and surgery in 1998, [he
was] substantially limited in the major life activities of work
standing and walking.” (Compl. ] 9.) However, when Wilcox returned
to work on June 8, 1998, the only limitation prescribed by his
doctor was a 30-pound weight-lifting restriction, the medical
necessity of which was to be reevaluated on July 1, 1998.
(Def’s. 56.1 Stmt. G@ 19.) Such a limitation simply does not
qualify as a substantial limitation on working, and thus is not a
‘disability” under the ADA. Contreras, 237 F.3d at 763; Baxter v-
Northwest Airlines, Inc., 1998 WL 603121 at *6 (N.D, Ill. Sept. 4,
1998).

Moreover, when Wilcox did return to work, he was presumably
not substantially limited in his ability to walk and stand, and
Wilcox has adduced no evidence that would permit a contrary
conclusion. The evidence in the record ig no friend to Wilcox on
this point. As early as two months following Wilcox’s surgery, Dr.
Foydel considered Wilcox’s case “just a garden variety injury,
surgery and recovery, nothing unusual,” (Def'’s 56.1 stmt. @ 17)F
two months later, on May 28, 1998, Dr. Foydel encouraged Wilcox to
“get back into the flow of normal life and try to continue on and
keep as active as possible.” (Def’s 56.1 Stmt. 7 20; Wilcox Dep.
at 77.) In his deposition, Wilcox characterized the condition of
nis back at his May 28, 1998 doctor’s visit in mild terms, as

follows: “I expressed to [Dr. Foydel] that I was a still a little

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pounds. (Def’s 56.1 Stmt. 9% 8-12, 31; Rosy Aff. Bxh. A.) The
duties of a bakery clerk involve “constant lifting” and carrying of
up to 50 pounds and “constant pushing/pulling” of up to 300 pounds.
(Id,)

After returning to work for just three hours on June 8, 1998
and experiencing significant back pain, Wilcox obtained a series of
doctor’s siips indicating that he was unable to return to work.

(Def’s 56.1 Stmt. 9 36; Wilcox Dep. Exh. 15; Foydel Dep. Exh. 18,

20.) The latest doctor’s slip in the record, dated August 24
1998, reads simply: “This patient is unable to return to work at
this time.” (Foydel Dep. Exh. 20.) Wilcox testified at his

deposition that between August 1998 and December 4, 1998, he was
“totally restricted from work.” (Wilcox Dep. at 111.) Wilcox
stated that he “might have been able to do something, but [he was]
not sure what.” (Id.)

Dr. Foydel testified that, as of December 4, 1998, there were
large portions of Wilcox’s job description that Wilcox simply could
not perform, or that he would be physically compromised in
performing. (Def’s 56.1 Stmt. @ 43; Foydel Dep. at 39.) Dr.
Foydel further testified that Wilcox would “risk doing further harm
to himself if he attempted to perform all of [his] job functions|,]
especially lifting.” (Foydel Dep. at 39.) In settling his
worker’s compensation claim with the Illinois Industrial Commission

on May 15, 2001, Wilcox signed a Settlement Contract Lump Sum

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