materials regarding job openings. She also sent an advanced bid form to apply for a reservations
sales agent position. In early September 2000, Sommers provided Carter with additional
advanced bid forms upon his request. Sommers told Carter to cal] her with any questions.

In September 2000, Carter submitted four bids for the position of reservation sales agent.
Northwest awarded Carter’s bid for a position in Tampa, Florida. However, Carter failed the
typing test administered to prospective reservation sales agents. After failing the test, Carter
requested that Northwest provide him with a typing class as an accommodation for the
reservation sales agent position. Northwest agreed and arranged for a keyboarding course at
Chicago State University. After Carter completed the course, Northwest twice advised him that
he could retake the keyboard assessment test at anytime. Carter did not retake the test.

DISCUSSION
I. Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is
no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.
R. Civ, P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party has
met its burden, the non-moving party must go beyond the pleadings and set forth specific facts
showing there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d
788, 798 (7th Cir. 1999). A genuine issue of material fact exists when “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at
248; Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The summary judgment

standard is applied with special scrutiny to employment discrimination cases because the



interests, educational background, prior work history, work skills, and possible alternative jobs.
They specifically discussed job openings for positions that included reservation sales agent,
customer service representative, clerical, World Club, and customer relations positions. During
the process, Sommers encouraged Carter to apply for jobs. Carter thought the reservations sales
agent position would be best for him. From then on, Sommers supplied Carter with
company-wide listings, reservations sales agent openings, and bid forms. One of Carter’s bids
for a reservations sales agent position was successful.

Carter argues the exploration process was deficient because the job lists sent to him were
in abbreviated form, like “CUST SVC AGT” and did not contain an abbreviation key or explain
requirements of each job. Carter argues he was left to decide alone whether he was qualified for
positions. He likens the Northwest exploration process to the deficient interactive process in
Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998). In Hendricks-Robinson,
the employer simply posted portions of all jobs available and misled its employees by failing to
bid for employees as promised. But here, Sommers learned of Carter’s skills, knowledge,
abilities, and desire to work as a reservations sales agent. She provided lists of openings, but
also tailored the search to the reservation sales agent position. In addition, she sought out a
sedentary equipment services employee position, unique to Detroit, and independently inquired
about its availability. After Carter failed the typing test for the reservation sales agent position,
Northwest arranged for him to take keyboarding classes at Chicago State University. Northwest
then encouraged him to retake the reservation sales agent typing test, but he failed to do so. This

personal attention is far from the misleading and generic job postings in Hendricks-Robinson.


from walking in a permanent or long term way. Jd. at 198; Dvorak v. Nostardi Platt Assoc., Ine.,
289 F.3d 479, 484 (7th Cir. 2002).

Carter walks with a cane. He experiences constant burning and numbness in his foot. He
is able to climb stairs slowly, but painfully. He can only stand for ten minutes. Northwest places
great importance on Carter’s ability to drive to a health club, sit in the hot tub, swim in the pool,
use an upper body weight lifting machine, and ride a stationary bike. But these activities are not
relevant to whether Carter’s impairment substantially limits his ability to walk. Given the facts, a
reasonable jury could find that Carter’s impairment substantially limits his ability to walk.

B. Northwest’s Awareness of the Disability

To recover under the ADA, Carter must show that Northwest was aware of his disability.
Contreras, 237 F.3d at 762. Northwest simply argues that it was unaware of Carter’s disability
because Carter was not disabled. As the moving party, Northwest fails in its burden to identify
evidence that demonstrates an absence of genuine issues of material fact. Celotex, 477 U.S. at
323. Northwest knew of Carter’s impairment, his time away from work, and his doctor’s orders
upon return. In the absence of evidence refuting Northwest’s knowledge, the court must draw
the reasonable inference that a jury could find Northwest knew of Carter’s disability.

C. Carter’s Qualifications

Under the ADA, Carter must establish he was qualified for the desired employment
positions by showing he was physically capable of performing the essential functions of the
position, with or without reasonable accommodation, and that he meets the legitimate
requirements set by Northwest for the position. Contreras, 237 F.3d at 762; 42 U.S.C. §

12112(b)(5)(A). Carter was not capable of performing as an equipment services employee


outcome may depend on determinations of credibility and intent. Michas v. Health Cost
Controls of Illinois, 209 F.3d 687, 692 (7th Cir. 2000).
I. The ADA

The ADA requires covered entities, including private employers, to provide “reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship.” Toyota v. Williams, 534 U.S. 184,
193 (2002), citing 42 U.S.C. § 12112(b)(5)(A). Northwest is an “employer” within the meaning
of the ADA. Def. 56.1 Facts at ]3. Therefore, to recover for failure to reasonably
accommodate, Carter must show: (i) that he was or is disabled as defined by the ADA; (ii) that
his employer was aware of his disability; and (iii) that he was qualified for the position in
question. Conteras v. Suncase Corp., 237 F.3d 756, 762 (7th Cir. 2001) (citations omitted).
A. Disability under the ADA

The ADA defines a disability as “a physical or mental impairment that substantially limits
one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2). The parties
do not dispute that Carter’s foot condition is a physical impairment. Walking is a major life
activity. Toyota v. Williams, 534 U.S. 184, 197 (2002). The relevant question, therefore, is
whether Carter’s foot impairment substantially limits his walking.

“<Substantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large
degree.’” Toyota, 534 U.S. at 197. The word “substantial” precludes “impairments that interfere

in only a minor way.” Jd. Therefore, Carter’s impairment must prevent or severely restrict him


positions. The fact that Northwest did not identify alternative positions in the initial
accommodation assessment is irrelevant and does not create a genuine issue of material fact.

Carter argues that Northwest accommodated other employees in the equipment services
department with physical restrictions similar to Carter. Carter contends that Northwest was
unwilling to engage in any legitimate assessment of his capabilities and asserts there were
possible accommodations. But the ADA only requires Northwest to make a reasonable attempt
to determine an accommodation. Beck v. University of Wisconsin Board of Regents, 75 F.3d
1130, (7th Cir. 1996). The facts reveal that Northwest attempted to engage in an interactive
accommodation assessment. Northwest contacted Carter about the assessment, but he did not
participate. “A party that obstructs or delays the interactive process is not acting in good faith. A
party that fails to communicate, by way of initiation or response, may also be acting in bad faith.
In essence, courts should attempt to isolate the cause of the breakdown and then assign
responsibility.” Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.
1996). In essence, Carter does not create a genuine issue of material fact by pointing to the faults
of an accommodation assessment that he chose not to attend. In his absence, Sommers and
Sinder evaluated the essential job functions of the equipment services employee position and
Carter’s work restriction. A reasonable jury could not find that Northwest was unreasonable in
this assessment.
2. The Alternative Duty Exploration Process

After the accommodation assessment, Sommers contacted Carter about the alternative
duty exploration process. In early July 2000, Sommers talked with Carter and agreed to send him

every job posting available throughout Northwest. In addition, they discussed Carter’s skills,


Minute Order Form 7)

A

United States District Court, Northern District of Illinois

Name of signed Judge P Sitting Judge if Other
or Magistrate Judge Suzanne B. Conlon than Assigned Judge
CASE NUMBER 01 C 8655 DATE 2/18/2003
CASE ROMELL ROBERT CARTER vs. NORTHWEST AIRLINES, INC.
TITLE
{Un 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:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due
(4) i) 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 :
(7) im) Trial[set for/re-set for] on at
(8) a [Bench/Jury tria!] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 OCOFRCP41(a)(1) OO FRCP41(a)(2).
(0) = (Other docket entry] Defendant’s motion for summary judgment [33-1] is granted. ENTER
MEMORANDUM OPINION AND ORDER.
(1) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

‘Number

oS | Notices mailed by judge’s staff.

Notified counsel by telephone. FEB 2.0 2003
Docketing to mail notices. \} A
Mail AO 450 form. dockshing deputy intiats
Copy to judge/magistrate judge.

2/18/2003

ate msiled notion
courtroom feeb

cB deputy’s , “a pw
initials

Date/time'received in, -f

central Clerk’s Office ~ mailing deputy initials



No reasonable jury could find that Northwest failed in its obligation to engage in reasonable
accommodation through the interactive process.
CONCLUSION
Although a reasonable jury could find that Carter was disabled for purposes of the ADA,
he fails to establish that Northwest did not engage in reasonable accommodation through its
accommodation assessment and alternative duty exploration process. Northwest sought to
include Carter in its accommodation assessment. Its efforts to accommodate Carter were

reasonable. Accordingly, Northwest’s motion for summary judgment must be granted.

February 18, 2003 ENTER:

Suzann¢ B. Conlon
United States District Judge


without accommodation. Def. 56.1 Facts, Ex. D at 92-93. Nor was Carter capable of performing
as a reservations sales agent without accommodation. Def. 56.1 Facts at § 89 (Carter failed the
keyboard assessment portion of the test for reservation sales agent). Therefore the relevant
question is whether Carter was capable of performing in his desired employment positions with
reasonable accommodation.

“The appropriate reasonable accommodation is best determined through a flexible,
interactive process that involves both the employer and the employee with a disability.” Rehling
v. City of Chicago, 207 F.3d 1009, 1015 (7th Cir. 2000) (citations omitted). Northwest engaged
in a two-step interactive process: the accommodation assessment and the alternate duty
exploration process.

1. The Accommodation Assessment

The accommodation assessment began in June 2000. On multiple occasions, Sommers
attempted to contact Carter and sent him a letter inviting him to participate in the assessment.
Carter knew about the assessment, but did not attend or call to reschedule. In his absence,
Sommers conducted the assessment with Sinder and determined Carter could not perform the
essential duties of an equipment services employee with reasonable accommodation.

Carter argues the assessment was inadequate because the assessment did not identify
alternative positions; it focused only on whether Carter could perform the equipment services job
he held at the time of his accident. But Carter misses the point of Northwest’s accommodation
assessment. The purpose of the assessment was to identify whether Carter could perform his job
as an equipment services employee with an accommodation. Def. 56.1 Facts at ] 30. Once that

was decided, Sommers moved to the alternative duty exploration process to identify alternative


accommodation. Sommers advised Carter by letter that she would conduct the assessment on
July 5, 2000. Carter knew about the assessment, but did not participate or notify Sommers of his
inability to attend because he did not have access to a phone. Sommers conducted the
assessment with Aaron Sinder, Northwest’s cargo manager at O’Hare Airport. They reviewed
Carter’s work restrictions and the essential job functions of an equipment services employee.
After the assessment, Sommers advised Carter by letter that Northwest could not identify
accommodations that would allow him to perform the essential functions of his current position
and remain within his work restrictions. Sommers offered Carter an opportunity to explore other
positions with Northwest through its alternate duty exploration process.

After the accommodation assessment, Carter and Sommers first spoke by telephone.
They discussed his educational background, prior work history, transferable work skills, possible
alternative jobs, and other areas where he might want to work. They discussed various job
openings for positions, including reservation sales agent, customer service representative,
clerical, World Club, and customer relations positions. Sommers read through titles of jobs
available at Northwest, but Carter did not have information concerning the qualifications or
duties for the jobs. After speaking with Sommers, Carter thought the reservations sales agent
position would be best for him. Sommers did find a sedentary Equipment Service Employee
position, unique to Northwest’s Detroit stations, that she thought Carter could perform.
However, the positions were held by Northwest employees with thirteen years more seniority
than Carter. Thus, the position was not an option.

On July 17, 2000, Sommers provided Carter with a company-wide job posting. Carter

did not apply for any position. On other occasions in August 2000, Sommers sent Carter other


justification as to why it waited until the last day of discovery to disclose the Thomes’ affidavit.
A party that fails to comply with Rule 26(e) without substantial justification is not permitted to
use the information as evidence at trial or on a motion for summary judgment. Fed. R. Civ. P.
37(c)(1). Carter’s motion to strike the affidavit of Judith Thomes is granted.

il. Facts

The following facts are undisputed unless otherwise noted. Northwest hired Carter in
1996 as an equipment services employee at O’Hare International Airport. Carter’s duties
included loading luggage and cargo onto planes and carts. In July 1999, Carter crushed his right
foot in an accident involving two forklifts. He required surgery and received continued medical
treatment. Carter now walks with the assistance of a cane. He wears special shoes to relieve
some of the pressure on his foot, but he experiences burning and numbness. He is able to climb
stairs slowly, lift ten pound objects, and stand for up to ten minutes.

For months after the accident, Carter could not work. But in March 2000, a doctor
released him to work with certain restrictions. According to the doctor, Carter could lift twenty
pounds occasionally, ten pounds frequently, and could constantly move objects requiring a
negligible amount of force. The doctor indicated that Carter could push, pull, reach overhead,
and perform bending activities occasionally. When Carter returned to work, however, he found
he was unable to perform his duties as an equipment services employee.

In June 2000, Margaret Sommers, accommodations assessment advisor for Northwest,
made numerous attempts to invite Carter to explore potential employment accommodations by
participating in an accommodation assessment. An accommodation assessment determines

whether an employee can perform essential functions of a presently-held position with


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

EASTERN DIVISION
ROMELL ROBERT CARTER )
)
Plaintiff, ) No. 01 C 8655
)
v. ) Suzanne B. Conlon, Judge
)
NORTHWEST AIRLINES, INC. »)
DOCKETE
Defendant. ) FEB AO 2003

MEMORANDUM OPINION AND ORDER

Romel! Carter sues his former employer, Northwest Airlines, Inc. (“Northwest”), for
failing to reasonably accommodate him as required by the Americans with Disabilities Act of
1990 (“ADA”), 104 Stat. 328, 42 U.S.C. § 12101 et seg. Northwest moves for summary
judgment pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1. Carter moves to strike the affidavit
of Judith Thomes pursuant to Fed. R. Civ. P. 37.

BACKGROUND

I. Carter’s Motion to Strike the Affidavit of Judith Thomes

In support of its motion for summary judgment, Northwest offers the affidavit of Judith
Thomes. Northwest did not disclose Thomes’ identity in its initial or supplemental Rule 26(a)(1)
disclosures. Nor did Northwest identify Thomes in response to Carter’s October 1, 2002
interrogatories until November 25, 2002 — the date discovery closed and Northwest filed its
motion for summary judgment.

Rule 26(e) requires parties to supplement their Rule 26(a) disclosures at “appropriate

intervals,” and amend their responses to discovery requests “seasonably.” Northwest offers no

| bo|