party is entitled to a judgment as a matter of law.” Feb. R. Clv. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S, 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The Court’s
function is “not to weigh the evidence but merely to determine if ‘there is a genuine issue for
trial.” Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7" Cir. 2002) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986)). A
genuine issue of material fact exists only if a “fair-minded jury could return a verdict for the
[non-moving party] on the evidence presented.” Anderson, 477 US. at 252.

In assessing whether a genuine issue of material fact exists in a case, the Court must
construe all facts in the light most favorable to the non-moving party and draw all reasonable and
justifiable inferences in favor of that party. See id. at 255. However, neither “the mere existence
of some alleged factual dispute between the parties,” id. at 247, nor the existence of “some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), is sufficient to defeat a
motion for summary judgment. See also Skorup v. Modern Door Corp., 153 F.3d 512, 514 (7"
Cir. 1998).

I The Americans with Disabilities Act - Count I

The ADA prohibits discriminating against an individual with a disability:

No covered entity shall discriminate 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, employee compensation, job training,
and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). The ADA requires employers to provide “reasonable accommodations to

the known physical or mental limitations of an otherwise qualified individual with a disability


Plaintiff maintains the burden of proving these elements at all times. Jd. at 696. Further, “{t}he
element of causation is not met if [Defendant] has a valid, nonpretextual basis for discharging
[Plaintiff].” Paz v. Commonwealth Edison, 314 Ill. App. 3d 591, 247 Ill. Dec. 641, 732 N.E.2d
696, 701 (2000) (citations omitted).

Daggy has failed to raise a genuine issue of fact relating to a connection between his
filing for workers’ compensation in 1998 and his alleged effective termination in 2001. The
undisputed evidence shows that over three years elapsed between the time Daggy filed his
workers’ compensation claim and the time CKI terminated him. For at least a year and two
months during this three-year time period, Daggy retumed to work with CKI. (R. 32-1, Def.’s
Resp. to Pl.’s Statement of Additional Facts {| 26-29.) This three year time lapse “is too tenuous
to create a reasonable inference of a causal connection.” Radke v. Taco Bell Corp., 2003 WL
1827218 at * 3 (7" Cir. 2003). See also Sweeney v. West, 149 F.3d 550, 557 (7" Cir. 1998) (an
“employer’s adverse action [must] follow[] fairly soon after the employee’s protected
expression” in order to be telling temporal sequence). Further, the statements made by former
CKI vice-president Baty that Daggy was not a “team player” do not support a causal link between
the 1998 filing and the 2001 termination as suggested by Daggy. Daggy’s reliance on
inadmissible hearsay also does not help his argument. See Elsenstadt v. Centel Corp., 113 F.3d
738, 741 (7" Cir. 1997) (“[H]earsay is inadmissible in summary judgment proceedings to the
same extent that it is inadmissible in a trial.”). Accordingly, summary judgment is granted on

Count IE.



The impairment’s impact must also be permanent or long term.” Toyota Motor Mfg., 534 U.S. at
197; see also 29 C.F.R. §§ 1630.2())(2)(ii)-Gii) (2001).

If Plaintiff’s condition does not rise to the level of a disability, then he cannot recover
under the ADA even if Defendant CKI terminated him because of his condition. “The Act is not
a general protection of medically afflicted persons .. . . If the employer discriminates against
them on account of their being (or being believed by him to be) ill, even permanently ill, but not
disabled, there is no violation.” Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1053
(7" Cir. 1997) (citation omitted). See also Skorup v. Modern Door Corp., 153 F.3d 512, 514 (7"
Cir. 1998).

Plaintiff alleges that he is substantially limited “in his ability to lift and to perform
manual tasks.” He claims that his injury limits the time he spends painting the rooms of his
house and playing ball with his children.

Plaintiff's lifting restrictions alone clearly do not qualify as a substantial limitation on
working. As the Seventh Circuit noted in Mack v. Great Dane Trailers, 308 F.3d 776, 782 (7"
Cir. 2002), “An inability to lift heavy objects may disqualify a person from particular jobs but
does not necessarily interfere with the central functions of daily life.” See Contreras v. Suncast
Corp, 237 F.3d 756, 763 (7" Cir. 2001) (holding that forty-five pound lifting restrictions,
inability to engage in strenuous work or drive a forklift for more than four hours per day fail to
“constitute a significant restriction on one’s capacity to work, as the term is understood within
the ADA”) (citations omitted). See also Williams v. Channel Master Satellite Sys., Inc., 101 F.3d
346, 349 (4" Cir. 1996) (holding as a matter of law that “twenty-five pound lifting limitation —

particularly when compared to an average person’s abilities — does not constitute a significant



who is an applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). In order to
invoke protection under the ADA, Daggy must demonstrate that: (1) he is a disabled person
within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions
of the job either with or without reasonable accommodation; and (3) he has suffered an adverse
employment action because of his disability. Dvorak v. Mostardi Platt Assoc., Inc., 289 F.3d
479, 483 (7" Cir. 2002); Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 950 (7" Cir. 2000).

CKI seeks summary judgment on the ground that Plaintiff is not “disabled” as defined
under the ADA. The ADA defines “disability” as follows:

(A) a physical or mental impairment that substantially limits 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. § 12102(2). See Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7" Cir. 1995).
The Court must interpret these terms “strictly to create a demanding standard for qualifying as
disabled.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681, 691, 151
L. Ed. 2d 615 (2002).

It is clear that “[m]erely having an impairment does not make one disabled for purposes
of the ADA.” Id, at 195. In addition, Daggy must demonstrate that the impairment substantially
limits one of his major life activities. Jd.; see also 42 U.S.C. § 12102(2)(A). “Substantially
limited” means that “an individual must have an impairment that prevents or severely restricts

the-individual from doing activities that are of central importance to most people’s daily lives.



employees who did not engage in protected activity were treated more favorably. Stone v. City of
Indianapolis Public Utilities Div., 281 F.3d 640, 642 (7" Cir. 2002). Under this standard, the
“plaintiff so proceeding need not show even an attenuated causal link.” Haywood v. Lucent
Tech., Inc., 323 F.3d 524, 531 (7" Cir. 2003) (citations and quotations omitted).

In its memorandum supporting summary judgment, Defendant fails to address Plaintiff's
claim that CKI retaliated against him for filing a discrimination charge with the EEOC.
Defendant attacks Plaintiff's claim only in its reply brief. Arguments that a party raises for the
first time in a reply brief, however, are waived. See Fenster v. Tepfer & Spitz, Ltd.,

301 F.3d 851, 859 (7" Cir. 2002). Accordingly, Defendant’s motion for summary judgment is
denied as to Count II.
Il. Retaliatory Discharge ~ Count III

In Count III, Daggy alleges that CKI retaliated against him for filing a workers’
compensation claim with the Illinois Industrial Commission. The Illinois Workers’
Compensation Act makes it unlawful for an employer to retaliate against an employee for
exercising his rights granted under the Act. See 820 Ill. Comp. Stat. 305/4(h). In Illinois, a
Separate cause of action also exists for retaliatory discharge if a plaintiff can establish that his
employer terminated him as a result of the plaintiff’s filing a workers’ compensation claim. See
Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 23 IN. Dec. 559, 384 N.E.2d 353, 357 (1978). To
succeed, a plaintiff must prove the following: “(1) that [he] was an employee before the injury;
(2) that [he] exercised a right granted by [the Illinois] Workers' Compensation Act; and (3) that
[he] was discharged and that the discharge was causally related to [his] filing a claim under the

Act.” Borcky v. Maytag Corp., 248 F.3d 691, 695-96 (7" Cir, 2001) (quotations omitted),


Minute Orger Form (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Amy J. St. Eve than Assigned Judge
CASE NUMBER 02 C 3144 DATE 9/23/2003
CASE Daggy vs. Chicago Kenworth
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:
(6) o Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
Q) Oo Answer brief to motion due. . Reply to answer brief due.
(4) o 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) QO ‘Trial[set for/re-set for] on at
(8) QO [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
COFRCP4(m) CLocal Rule 41.1 CFRCP41(a)(1) C1 FRCP41(a)(2).
| [Other docket entry] Enter Memorandum Opinion and Order. Defendant’s motion for summary
judgment is granted in part and denied in part. Itis granted as to Counts I and III. It is denied as to Count
IL.
(ii) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
Notices mailed by judge’s staff.
Notified counsel by telephone.
v Docketing to mail notices.
Mail AO 450 form, LuNGd 4 63
Copy to judge/magistrate judge. ul

date mailed notice

Satire
courtroom ti &
THY deputy’s
initials :

“pite/time received in! 1!
central Eletk’s Office



CONCLUSION
Defendant’s motion for summary judgment is granted in part and denied in part. It is

granted with respect to Counts IJ and III. It is denied with respect to Count IL.

DATED: September 23, 2003 ENTERED

AMY J. ST!
United States

10


restriction on one’s ability to lift, work, or perform any other major life activity”); Aucutt v. Six
Flags Over Mid-Am., 85 F.3d 1311, 1319 (8" Cir. 1996) (finding that plaintiff failed to show that
he was substantially limited in major life activities where a “25-pound lifting restriction was the
only medical limitation placed upon [plaintiff]’s activities”). In short, the undisputed facts do not
show that Daggy was substantially impaired.

Further, Daggy has not demonstrated that painting and playing ball with his children are
of “central importance to most people's daily lives.” Toyota Motor Mfg. v. Williams, 534 US. at
197. Daggy cites his own affidavit to support this argument. Such a self-serving, conclusory
evidentiary submission without support in the record is insufficient to defeat Defendant’s
summary judgment motion. See Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7" Cir. 2002).

Plaintiff's shoulder injury does not substantially limit any of his major life activities.
Therefore, he does not have a “disability” as defined by the ADA. Without a disability, Daggy
fails to establish the first element of an ADA claim. The Court need not examine the remaining
factors given that Daggy cannot prove the existence of this essential element of his prima facia
case of discrimination under the ADA. Accordingly, Defendant’s Motion for Summary
Judgment on Count I is granted.

III. Retaliation under the ADA — Count IL

Defendant seeks summary judgment on Count II of Plaintiff's complaint which alleges
that Defendant retaliated against Daggy for filing a charge of discrimination with the ADA. In
order to establish a prima facie case of retaliation under the ADA, Daggy must demonstrate that
(1) he engaged in protected activity; (2) he suffered an adverse employment action; (3) he was

meeting his employer’s legitimate employment expectations; and (4) other similarly situated

7



and requested that he return to work. (Jd. 4 45.) CKI informed Daggy that there were restrictions
placed upon him that were inconsistent with the collective bargaining agreement’s 70 pound
lifting requirement. (Jd.)

B. Other Employment

Daggy worked for Wise Farm Lines from March 2001 to December 2001. (/d. 432.) At
Wise Farm Lines, Daggy loaded and unloaded concrete and steel. (/d. 33.) He also drove a
truck, operated a dolly, unhitched trailers and performed maintenance on his truck. (/d. 4 33.)
From January 2, 2002, until October 2002, Daggy worked as a truck mechanic at Trans-Service
Leasing. (/d. { 34.)

Cc. Daggy’s Complaint

Daggy filed a three-count complaint against CKI. In count I, Daggy alleges that CKI
discriminated against him in violation of the Americans with Disabilities Act (“ADA”). In count
Il, Daggy contends that CKI retaliated against him for filing his discrimination charges with the
Equal Employment Opportunity Commission (“EEOC”). Finally, in Count If, Daggy contends
that CKI retaliated against him for exercising his rights under the Illinois Worker’s
Compensation Act. CKI seeks summary judgment on all three counts.

ANALYSIS

I. Legal Standards

A. Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is proper where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving


While working at CKI, Daggy was a member of Local Union 701, a machinist’s union.
(Id. |9.) He served as Local 701's union steward for CKI from approximately 1998 to 2000. (Id.
4/9.) Daggy agreed to be bound by the collective bargaining agreement entered into between
Local 701 and CKI. (Id. 4 10.)

On or about September 29, 1997, Daggy tore his right rotator cuff at CKI while pulling a
transmission bolt up to an engine. (/d. 20.) On approximately July 11, 1998, Daggy had
surgery performed on his right shoulder to address this injury. (Id. {| 22.) On February 10, 1999,
Daggy’s doctor released him to work. (R. 28-2, Pl.’s Statement of Additional Facts J 26.) Due
to continuing pain and difficulty performing his job, Daggy worked with a lifting restriction. (Id.
27.) He continued to work at CKI until April 13, 2000 when he underwent a second surgery on
his right shoulder. (Jd. 29.) As of May 30, 2000, Daggy’s doctor imposed the following
restrictions on his ability to work: no overhead lifting, no lifting above waist level, no climbing
into trucks and no lifting over 20 pounds. (Jd. 37.)

In 1998, Daggy filed an Application for Adjustment of Claim with the Illinois Industrial
Commission this injury. (R. 25-1, Def’s Statement of Undisputed Facts 21.) On approximately
March 21, 2001, Daggy’s workers’ compensation benefits from CKI ended. (Jd. | 26.) On or
about June 29, 2001, Daggy entered into a lump-sum settlement contract with CKI’s insurance
carrier and settled his workers’ compensation claim with CKI for the injury to his right shoulder.
(id. 427.)

On October 8, 2001, Daggy provided CKI with a doctor’s note. (Jd. 44.) That note
indicated that Daggy could lift up to 100 pounds to waist level, up to 60 pounds from waist to

shoulder and up to 40 pounds overhead. (/d. | 44.) On October 9, 2001, Daggy contacted CKI



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

EASTERN DIVISION
Str <4 20035
ROBERT H. DAGGY, )
)
Plaintiff, )
) No. 02 C3144
v. )
) Honorable Amy J. St. Eve
CHICAGO KENWORTH, INC., )
) SEP 2 4 2003
Defendant. )

MEMORANDUM OPINION AND ORDER

Chicago Kenworth has moved for summary judgment. For the reasons set forth below,

Defendant’s motion is granted in part and denied in part.
BACKGROUND

I. Undisputed Facts

Plaintiff Robert Daggy began working at Chicago Kenworth, Inc. (“CKI”) on June 6,
1988. (R. 25-1, Def.’s Statement of Undisputed Facts { 8.) CK is in the business of selling new
heavy-duty Kenworth trucks and used trucks of all types. (Jd. 6.) It also services and sells parts
for trucks. (d.)

A. Daggy’s Work as a Journeyman Truck Mechanic

Daggy worked at CKI as a journeyman truck mechanic. (/d. J 8.) The journeyman truck
mechanic position is physically demanding and requires lifting parts weighing up to 70 pounds.
(id. 413.) The position requires overhead lifting and above-head arm movements. (Jd. { 14.)
Above-head arm movements, pulling oneself in and out of trucks and lifting objects up to 70

pounds are essential functions of the position of journeyman truck mechanic at CKI. (Id. J 16.)

35