IV. Cardwell’s overtime opportunities as a full-time custodian

Overtime for full-time custodians is assigned at a supervisor’s discretion. Seniority does not
effect the assignment of overtime. Cardwell received some overtime as a full-time custodian.

In April 2000, Cardwell filed a complaint with the EEOC claiming that he was discriminated
against because of his disability. He alleged that he was improperly denied overtime on two
occasions and harassed by other employees once he started working part-time.

DISCUSSION
I. Summary judgment standard

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); King v. National Human Resource Committee, Inc., 218 ¥.3d 719, 723 (7" Cir. 2000);
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 (¢); Silk v. City of Chicago, 194 F.3d 788, 798 (7" Cir.
1999). The court considers the record as a whole and draws all reasonable inferences in the light
most favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972
(7" Cir. 2000). A genuine issue of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Insolia v. Philip Morris, Inc., 216 F.3d 596,
599 (7" Cir. 2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The summary
judgment standard is applied with special scrutiny to employment discrimination cases because the
outcome may depend on determinations of credibility and intent. Michas v. Health Cost Controls

of Ilinois, 209 F.3d 687, 692 (7" Cir. 2000).


custodians/drivers. Pl. Facts at {] 56-60. However, Cardwell fails to show he was similarly situated
to these individuals in all respects or that he was available when overtime work was needed. In fact,
Cardwell admits he was offered one or two hours a day of overtime for a period of two or three
weeks, but he chose to take one hour instead of two. Pl. Fact Resp. at { 63.

Cardwell’s final attempt to establish an equal protection violation is based on harassment
allegations. In determining whether the workplace is objectively hostile, courts consider “the
frequency of the discriminatory conduct; its severity; whether it was: physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” McPhaul v. Board of Commissioners of Madison County, 226 F.3d
558, 567 (7" Cir. 2000) (internal citations omitted).* Cardwell offers evidence that full garbage cans
were substituted for empty ones so he would be charged with dereliction of duty. Pl. Facts at { 100.
This alleged harassment only occurred once; there is no evidence the incident was related to
Cardwell’s cataract. Moreover, the incident did not result in disciplinary action against him.
Defendants’ Response to 56.1 Facts (“Def. Resp. Facts”), ] 100. Cardwell offers further evidence
that four employees spread a rumor his brother took physicals for him. PI. Facts at { 92. However,
he admitted these rumors did not impact his job performance. Def. Resp. Facts at ] 73. Finally,
Cardwell offers evidence that employees called him names such as “marble eye,” “one eye,” and
“roaming eye.” Jd. at 74. He fails to offer evidence to establish the number of times he was called
these names or whether he found them to be physically threatening or humiliating. Based on this

evidence, no reasonable jury could find Cardwell was subjected to a hostile work environment

*Section 1983 hostile work environment claims “follow the contours of Title VII claims.”
King v. Board of Regents of the University of Wisconsin System, 898 F.2d at 537. However, a
plaintiff must establish intent to discriminate under §1983. Id.

9


consideration is working, the statutory phrase ‘substantially limits’ requires, at a minimum, that
plaintiffs allege they are unable to work in a broad class ofjobs.” Sutton v. United Airlines, Inc., 527
U.S. 471, 491 (1999). Cardwell admits there is no broad class of jobs that he cannot perform.

Defendants’ 56.1 Statement of Facts (“Def. Facts”), Ex. 1 at 22.

Cardwell testified that the cataract affects his ability to see straight and his depth perception.
Plaintiff’s 56.1 Statement of Facts (“PI. Facts”) at § 18; Ex. 1 at p. 353. Seeing is a major life
activity under the ADA. Sutton v. United Airlines, Inc., 527 U.S. 471, 480 (1999). However,
Cardwell fails to offer sufficient evidence to show his visual limitations are substantial. He admitted
during his deposition that his right-eye cataract does not affect his daily life. Def. Facts, Ex. 1, at
19. He further admitted the cataract does not limit his actions in any way. Jd In addition, he
testified that he can drive a car and truck with the cataract. Jd. at 19-20. He further testified the
cataract does not affect his ability to care for himself, perform manual tasks, walk, speak, breath,
learn, sit, stand, lift, reach for anything, or work. Jd. at 20-22. Additionally, Cardwell stated on his
Reavis employment application that he did not have any physical defects that precluded him from
performing certain kinds of work. Def. Facts at § 29.

Cardwell submitted an affidavit subsequent to his deposition. In the affidavit, he attested that
his cataract limited the following activities: (1) judging distances and heights; (2) hiking and
climbing; (3) walking without tripping or stumbling; (4) reading; and (5) looking at a computer
screen. He further stated that his monocular vision makes him sensitive to glare and eye strain
headaches. Pl. Facts, Ex. 2. These statements contradict his deposition assertions that he was not
limited in any way by his cataract. Cardwell fails to offer a plausible explanation for these

contradictions. Therefore, the court may not consider the contradictory statements in his affidavit.


Il. Disability discrimination

Cardwell brings an ADA claim against the Board. The ADA protects qualified individuals
with disabilities from employment discrimination on account of the disability. “No covered entity
shall discriminate against a qualified individual with a disability because of the disability of such
individual... .” 42 U.S.C. § 12112(a). A disability is defined as: “(1). a physical or mental
impairment that substantially limits one or more of the major life activities of such individual; (2)
a record of such an impairment; or (3) being regarded as having such an impairment.” 42 U.S.C. §
12102(2); Amadio v. Ford Motor Company, 238 F.3d 919, 925 (7" Cir. 2001). The first prong is
applicable in this case. Cardwell alleges his impaired vision substantially limits major life activities.
Am. Cmplt. at § 42, p. 11.

Monocular vision is not a per se disability. Albertson's Inc. v. Kirkingburg, 527 U.S. 555,
566 (1999). The impact monocular vision has on major life activities must be examined on an
individual basis. Jd. Factors that must be considered include: (1) the degree of visual acuity in the
weaker eye; (2) the age when the individual suffered vision loss; (3) the extent of the individual’s
compensating visual techniques; and (4) the extent of the individual’s visual ability restrictions. Id.
“This is not to suggest that monocular individuals have an onerous burden in trying to show they are
disabled.” Jd. at 567. However, such individuals must “prove a disability by offering evidence that
the extent of the limitation in terms of their own experience, as in loss of depth perception and visual
field, is substantial.” Jd Cardwell fails to offer sufficient evidence to meet this standard.

It is undisputed that Cardwell can no longer drive a school bus in Illinois. Working is
considered a major life activity for ADA purposes. Mattice v. Memorial Hospital of South Bend,

Inc., 249 F.3d 682, 685-86 (7" Cir. 2001). However, “[w]hen the major life activity under


definable class.” Nabozny v. Podlesny, 92 F.3d 446, 453 (7" Cir. 1996). Cardwell offers evidence
that defendants treated him differently than non-disabled employees by (1) denying him overtime
upon request; (2) giving him less overtime; (3) failing to stop other employees from harassing him;
and (4) altering the CBA provisions to allow Reavis to bump him to part-time. PI. Facts at 49] 54-60,
69, 128.

Cardwell’s evidence is insufficient to establish an equal protection violation. Disabled
individuals do not qualify as a suspect or quasi-suspect class. Therefore, their discrimination claims
are reviewed under rational basis scrutiny. United States v. Harris, 197 F.3d 870 (7" Cir. 1999).
Under this standard, defendants cannot be held liable for discrimination when their actions are
rationally related to a legitimate government purpose. Jd. It is undisputed that in 1996 the Board
and the Union agreed that a custodian/driver could bump a more junior full-time custodian.
Plaintiff's Response to Def. Facts (“PI. Fact Resp.”) at ] 44. Therefore, the decision to demote
Cardwell to part-time was rationally related to the Board’s interest in complying with the union
agreement. The fact that Cardwell bumped junior employees when he became a full-time custodian
is further evidence that the Board’s actions were not based on discrimination. Def. Facts at { 38.

In regard to overtime, it is undisputed that Cardwell received 14 hours of overtime from
October 1998 through December 1998, 40 hours of overtime in 1999, 8 hours of overtime in 2000
and 32 hours of overtime from January through June 2001. Def. Facts at § 61.4 Cardwell offers

evidence to show that with two exceptions, he was granted less overtime than other custodians and

‘In his response to defendants’ facts, Cardwell denies he received overtime when he
worked part-time. Pl. Fact Resp. at § 61. However, he fails to offer any record support for this
denial. Therefore, 61 is deemed admitted for purposes of summary judgment. See Local Rule
56.1(b)(3)(A) and (B).


Minute Order Form (06/97)

VAG) United States District Court, Northern District of Dlinois
mets | _SwanneB.Conlon | Se
CASE NUMBER 00 C 7147 DATE 9/5/2001
CASE JEFF CARDWELL vs. BOARD OF EDUCATION, REAVIS COMMUNITY HIGH
TITLE SCHOOL DISTRICT NO. 220, ET AL.

{In the following box (a) indicate the party filing the motion, e.¢., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:
DOCKET ENTRY:
(3) a] Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) QO Answer brief to motion due . Reply to answer brief due
(4) ag Ruling/Hearingon__setfor___—_at
(5) 0 Status hearing[held/continued to] [set for/re-set for]on__setfor__-—at__—
(6) im Pretrial conference[held/continued to] [set for/re-set for]on__setfor__——at__—
(1) o Trial[set for/re-set for]on___—_at
(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__—_at
(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CGeneral Rule2? CFRCP41(a\(1) OO FRCP41(a)(2).
do) «=f [Other docket entry] Defendants’ motion for summary judgment [53-1] is granted. Judgment is

entered for defendants Board of Education of Reavis Community High School District No. 220, et al. and
against plaintiff Jeff Cardwell. ENTER MEMORANDUM OPINION AND ORDER.

12, Cnelin

dl) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required,

umber of notices

VY | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices

v | Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
SB deputy’s
initials

Date/time received in
central Clerk's Office

mailing deputy initials



show: (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action;
and (3) a causal link exists between the protected activity and the adverse action. McKenzie v.
Ilinois Department of Transportation, 92 F.3d 473, 483 (7" Cir. 1996). “In order to demonstrate
the causal link, [he] must demonstrate that [the Board] would not have taken the adverse action but
for the protected expression.” Jd. (internal citations and quotations omitted).

Cardwell offers evidence he was denied overtime after he filed his claim. PI. Facts at 4 54-
60. He offers further evidence he was denied full-time pay on Columbus Day, even though he was
told he could start full-time on the holiday. Jd. at §113. In addition, he offers evidence to show the
Union steward did not hold a meeting for custodians regarding the 2001 CBA until he received an
order from the union president. Jd. at | 104. Finally, Cardwell contends the Board could have given.
Pavlow disability benefits in September 1999 and allowed Cardwell to replace him.” No reasonable
jury could find this evidence establishes retaliation. Cardwell neither offers evidence that these
alleged incidents constitute adverse employment actions nor evidence that these actions were related
to his EEOC charge. In fact, the evidence and Cardwell’s assertions suggest the contrary. Cardwell
claims he was denied overtime opportunities before April 2000. Jd. at §§ 54-60. Similarly, any
purposeful plan to prevent Cardwell from replacing Pavlow between September 1999 and April 2000
could not have been caused by retaliation for the April 2000 EEOC charge. In regard to Cardwell’s
Columbus day salary, it is undisputed that his first full-time day was after the holiday. Def. Facts
at § 54. The CBA states, “Holidays will be paid holidays only if [the] employee worked the
scheduled day preceding and the scheduled day following said holiday.” Jd. at 55. Summary

judgment must be granted in favor of defendants on Count III.

7Cardwell offers no citation to the record to support this assertion.

il


because of his disability. Moreover, even if Cardwell could establish disparate impact, he has
offered no evidence to establish that defendants’ acted with discriminatory purpose.

B. Defamation

Cardwell offers evidence to show defendants violated § 1983 by engaging in defamation.
“Defamation by itself is not a constitutional deprivation.” Siegert v. Gilley, 500 U.S, 226, 233
(1991). In order to qualify as a constitutional violation, the deprivation must impair Cardwell’s
Fourteenth Amendment liberty interests. Jd.

In response to defendants’ earlier motion to dismiss Count II for vagueness, the court found
Count II implicated equal protection concerns when read in a light most favorable to Cardwell. The
court did not find Cardwell sufficiently alleged defamation. The only complaint allegation even
related to defamation is vague. Cardwell alleges “defendants denied his right to enjoy his reputation
as an honest, decent custodian by maliciously slandering his reputation.” Am. Cmplt. at 4 50(c), p.
15. Cardwell does not explain how defendants slandered his reputation. Moreover, “injury to
reputation is by itself [is] not a ‘liberty’ interest protected under the Fourteenth Amendment.” Id.
at 234. The court need not address whether Cardwell offered sufficient evidence in his summary
judgment motion to establish defamation. The summary judgment stage is too late for adding new
claims. Auston, IV v. Schubnell, 116 F.3d 251, 255 (7" Cir. 1997). Summary judgment must be
granted in defendants’ favor with respect to Count II.°
IV. Retaliation

Cardwell contends the Board retaliated against him for filing a charge of discrimination with

the EEOC on April 11, 2000. In order to establish a prima facie case of retaliation, Cardwell must

‘The arguments regarding municipal policy are moot.

10


Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7" Cir. 1995) (“Where deposition and affidavit are
in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the
deposition was mistaken”).

Even if the court considered Cardwell’s affidavit, the evidence of life activity limitations
would be insufficient. Cardwell fails to offer evidence, such as medical reports, to corroborate his
testimony. Self-serving affidavits are insufficient by themselves for purposes of withstanding a
summary judgment motion. See e.g., McPhaul v. Board of Commissioners of Madison County, 226
F.3d 558, 564 (7" Cir. 2000). Accordingly, summary judgment must be granted in favor of
defendants with respect to Count I?

Til. Section 1983

Cardwell brings a § 1983 claim against the Board and its members. To recover under § 1983,
Cardwell must establish he was deprived of his constitutional rights by an individual acting under
color of state law. See 42 U.S.C. § 1983; Pickrel v. Springfield, 45 F.3d 115, 118 (7" Cir. 1985).
To state a claim under § 1983, Cardwell must show: (1) defendants deprived him of a
constitutionally protected right and (2) the deprivation was caused by a municipal policy or custom.
Leahy y. Board of Tr. of Comm. College Dist. No. 508, 912 F.2d 917, 922 (7" Cir. 1990).

A. Equal protection

Cardwell contends defendants deprived him of his Fourteenth Amendment right to equal
protection. To establish an equal protection violation, Cardwell must show “defendants acted with

a nefarious discriminatory purpose and discriminated against him based on membership in a

>The arguments pertaining to whether defendants’ actions constitute discrimination are
moot for purposes of the ADA. However, they are addressed in sections three and four below.

7


Il. Reavis’ seniority system

During 1996 negotiations, the Union and the school district considered new policies for the
school’s employee seniority system. They agreed that custodian/drivers who lost their bus driver’s
licenses for health reasons could bump the most junior full-time custodian over which they had
seniority. They also agreed that part-time custodians could be added to the bargaining unit. The
1998-2001 CBA contained the same provisions regarding part-time benefits and seniority.

As aresult of the seniority policy, Cardwell was reassigned to a full-time custodian position
after he lost his custodian/driver position. He bumped the most junior full-time custodian into a part-
time position. The most junior part-time custodian was laid off. Cardwell’s salary per hour as a full-
time custodian was $2.33 lower than his salary as a custodian/driver, as mandated by the CBA.

In June 1999, Paul Pavlow, a Reavis custodian/driver, lost his school bus driver’s license for
health reasons. Pavlow had worked for the school longer than Cardwell. As a result, Paviow
bumped Cardwell, the most junior full-time custodian, into a part-time custodial position. Cardwell
lost his medical benefits and received $8.38 less per hour in salary.

On July 1, 1999, Cardwell filed a union grievance. He complained that he was unjustly
bumped into a part-time position. The school district and the Union followed the CBA provisions
regarding grievances. Cardwell’s grievance was denied.

In October 2000, Dan Gaffney, a full-time Reavis custodian, retired. Cardwell was the most
senior part-time custodian at the time. Consequently, Negrete told Cardwell he could take Gaffney’s
full-time position. However, Daker warned Cardwell that he could be demoted to a part-time
custodian at any time based on the seniority system. Cardwell has remained in a full-time custodial

position since the transfer.


education in Burbank. Lennon, Wells, Mayer, Dominguez, Rokaitis, Smola, and Strocchio are
members of the Board. Ross was Reavis’ superintendent from July 1995 to June 2000. He was
replaced by Daker. Marin has been Reavis’ principal since July 1994.

IL. Cardwell’s employment

Prior to 1991, the State and Municipal Teamsters and Chauffeurs Union Local No. 726 (“the
Union”) and the Board entered into a collective bargaining agreement (“CBA”), which addressed
employment terms and conditions for the school’s employees. On October 28, 1991, the Board hired
Cardwell as a second shift school custodian/driver. Cardwell’s job duties included sweeping floors,
cleaning classrooms, setting up for parties, and driving a school bus. As a term of employment,
Cardwell was required to attend yearly physical and eyeexaminations. Cardwell was diagnosed with
a cataract in his right eye at birth. As a result of the cataract, he is partially blind in his right eye.
However, between 1991 and 1998, optometrists who examined Cardwell found his vision in both
eyes to be 20/40 or better with corrective lenses. They certified his vision as adequate for a
commercial driver’s license.

In October 1998, the examining optometrist, Dr. William Weaver, noted in his report that
Cardwell’s right eye decreased visual acuity since birth and that this problem could not be corrected
with glasses. Dr. Weaver reported Cardwell’s vision with corrective lenses as 20/20 in his left eye
and 20/200 in his right eye. As a result of his poor right eye vision, Dr. Weaver refused to certify
Cardwell’s vision as adequate for a schoo] bus driver’s license. Cardwell obtained a second opinion
from an optometrist who confirmed Dr. Weaver’s diagnosis. Consequently, the Board no longer

allowed Cardwell to drive a bus.


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

EASTERN DIVISION
JEFF CARDWELL )
Plaintiff, )
) No. 00 C7147

v. )

) Suzanne B. Conlon, Judge
BOARD OF EDUCATION, »)
REAVIS COMMUNITY HIGH SCHOOL )
DISTRICT NO. 220, ET AL. )
)

Defendants. w

SEP 10 2001
MEMORANDUM OPINION AND ORDER

Jeff Cardwell sues the Board of Education, Reavis Community High School District No. 220
(the Board”), John W. Lennon, Jeffrey Wells, Kevin Mayer, Diane Dominguez, James Rokaitis,
Stanley Smola, Jr., Ralph Strocchio (“members of the Board”), Louis Ross, Glen Marin, and
Lawrence Daker (collectively “defendants”)! for violations of the Americans With Disabilities Act,
42 U.S.C. § 12111 (Count J), 42 U.S.C. § 1983 (“§ 1983") (Count II), retaliation (Count II) and

breach of contract (Count IV).? Defendants move for summary judgment, pursuant to Fed.R.Civ.P.

56.
BACKGROUND
I. The parties

Cardwell is a resident of Burbank, Illinois. Reavis High School provides public high schoo!

'The State and Municipal Teamsters and Chauffeurs and Helpers Union Local No. 726
was dismissed from this action.

*Cardwell’s claims for intentional infliction of emotional distress were dismissed.

1


Vv. Breach of contract
Cardwell does not dispute defendants’ argument that the court lacks subject matter
jurisdiction over his breach of contract claim. Accordingly, defendants’ summary judgment motion
is granted with respect to Count WV.
CONCLUSION

Defendants’ motion for summary judgment is granted.

September 6, 2001

United States District Judge

12