allegations that American intended to discriminate against Moskerc because of his
age. The evidence overwhelmingly indicates that American’s intention was to assist
Moskerc in continuing to be a productive employee at American or in other

employment. Therefore, we grant summary judgment on the ADEA claim.

II. Breach of Contract Claim

Moskerc claims that American breached an employment contract by not
immediately returning him to his original CSM position when he returned to work in
March of 2001. Under Illinois law an employee is presumed to be an at-will
employee unless the employer sets a fixed term for the duration of the employment.
Duldulao v. Saint Mary of Nazareth Hosp. Ctr, 505 N.E.2d 314, 318 (Ill. 1987).
However, an employee handbook can convert at-will employment to an employment
contract if “the traditional requirements for contract formation are present.” Jd. 490.
In Illinois “[e]mployment contracts in Illinois are presumed to be at-will and are
terminable by either party; this rule, of course, is one of construction which may be
overcome by showing that the parties agreed otherwise . . and [a]s with any contract,
the terms of an employment contract must be clear and definite.” McInerney v.
Charter Golf, Inc., 680 N.E.2d 1347, 1349(IIl. 1997). In order for an employee

handbook or policy statement to qualify as an offer “the language of the policy

19



asserts an ADA claim based on allegations that American regarded Moskerc as

having a disability, we grant American’s motion for summary judgment.

C, Qualified Individual

The ADA prohibits discrimination against a “qualified individual with a
disability. ...” 42 U.S.C. § 12112(a)(emphasis added). A qualified individual is
“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). We note that even if Moskerc was able to
show that he had a disability or was regarded as having a disability his ADA claims
fail because no reasonable trier of fact could find that he was a qualified individual.
Until American revised the job description for Moskerc’s original CSM position the
position required Moskerc to lift up to 100 pounds. Moskerc admitted in a letter to
American in 1999 before the instant lawsuit was initiated that lifting 100 pounds was
part of his job description. There is testimony of American employees that support
American’s belief that the job description should include a 100 pound lifting
requirement, American’s position that Moskerc was not a qualified individual is
also supported by the fact that Moskerc injured his back while performing his

routine tasks associated with the CSM position.

13


On January 28, 2002, Moskere filed his civil complaint with this court
alleging a violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seg., and the Americans With Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seg. Moskerc also asserts a state law claim for

breach of contract.

LEGAL STANDARD

Summary judgment is appropriate when the record reveals that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the
moving party must identify “those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial
burden may be satisfied by presenting specific evidence on a particular issue or by
pointing out “an absence of evidence to support the non-moving party’s case.”/d. at
325. Once the movant has met this burden, the non-moving party cannot simply rest
on the allegations or denials in the pleadings, but, “by affidavits or as otherwise
provided for in [Rule 56], must set forth specific facts showing that there is a

genuine issue for trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a

4


statement must contain a clear promise clear enough that an employee would
reasonably believe an offer has been made.” Duldulao, 505 N.E.2d at 318.

Moskerc contends American’s guidelines concerning a management reduction
in force and the reinstatement rights section of American’s extended medical leave
policy created an enforceable employment contract. However, there is insufficient
evidence for a reasonable trier of fact to conclude that either the reduction in force
policy or the reinstatement rights section created an enforceable contract. Moskerc
admits that American’s Reduction-in-force Policy provides: “Management/Specialist
employees do not generally have job security or location protectionwhen a
reduction in force occurs, except .. . [i]f you were a Passenger Service Manager . . .
as of June 1, 1984, you have and will continue to have job security and any location
protection for as long as you remain in that job .. . .” (emphasis added)( R SF 68).
American correctly points out that it is clear from the plain language of the policy
that it is not applicable to the instant case because Moskerc is not claiming job
security due to a reduction in force. The statement is also clearly not an offer and is
merely a general statement of American’s policy.

Moskerc admits that the reinstatement rights section of American’s extended
medical leave policy states: “You will be reinstated to your same or similar job in

your former location upon the conclusion of your leave with the approval of the AA

20



the medical department acted in bad faith. Therefore, we grant the motion for

summary judgment on the breach of contract claim.

CONCLUSION
Based on the foregoing analysis, we grant American’s motion for summary

judgment in its entirety.

Som 2 D-- Yog —

Samuel Der-Yeghiayan
United States District Court Judge

Dated: May 10, 2004

22


personal system and manipulate this data by utilizing Word and Excel software to
generate management reports. (R SF 34). Moskerc also admits that he did not
choose to complete the interview process for the Lost Time CSM position. (R SF
37). Moskerc admits that he refused to take the test given to all applicants. (R SF
38). Moskerc admits that he simply dropped the test on the desk of the test
administrator and told the administrator that the test was unnecessary. ( R SF 38).
Moskerc admits that the individual eventually hired for the position, unlike Moskerc,
had a Bachelor’s degree in finance, extensive knowledge of financial analysis, and
very strong computer skills. (R SF 36, 39). Although Moskerc expressed interest in
the Analyst Manpower position, he admits he never applied for the position. (R SF
33).

American has provided legitimate non-discriminatory reasons for all of its
employment decisions concerning Moskerc. Moskerc in turn has utterly failed to
provide any evidence that the given reasons are a pretext. American claims that it
believed that the Fueling CSM position was under the same written job description
as the Passenger Services CSM requiring employees to lift a maximum of 100
pounds. In regards to a pretext analysis it is irrelevant whether the information
American based its decision on was correct. See Essex v. UPS, Inc., 111 F.3d 1304,

1310 (7th Cir. 1997)(stating that whether not “the employer was mistaken or based

17



noting that although the “number of Americans restricted by back problems to light
work is legion . . . [t]hey are not disabled.”); Wilcox v. American Stores, 2002 WL
31654938, *5 (N.D. Ill. 2002)(noting that plaintiff's restriction from lifting more
than thirty pounds was not a disability under the ADA). Rather the intention of the
ADA is to limit coverage to an individual that cannot find other productive work
because the impairment is so limiting in his life. See Mack, 380 F.3d at 781 (stating
that “[a]n inability to lift heavy objects may disqualify a person from particular jobs
but does not necessarily interfere with the central functions of daily life.”).

In this case Moskerc admits pursuant to Local Rule 56.1 that his back
condition caused him to be “restricted somewhat in [his] motion and ability to move”
and that he could not “really make any sudden movements” like “twisting or bending
quickly” and could not sit for long periods of time. (R SF 50). When asked what
activities have been affected by his back injury Moskerc did not make reference to
tasks central to a person’s daily life such as brushing his teeth or otherwise caring for
himself. Instead Moskerc stated: “[I]t limits me in my ability to play golf. Although
I can, I can’t do it like I did.” (Moskerc dep. 263). As indicated above, the ADA is
intended to protect individuals that are unable to perform the rudimentary tasks in
their lives. Thus, it is somewhat appalling that Moskerc should seek the protection

of the ADA because he now gets a lower golf score than he did prior to his back



disability if: 1) he suffers from a “physical or mental impairment that substantially
limits one or more of the major life activities,” or 2) if he has a “record of such an
impairment,” or 3) his employer regards him as “having such an impairment.” 42

U.S.C. § 12102(2).

A. Actual Disability ADA Claim

Moskere claims that his back injury is a disability and that his depression was
a disability. When Moskerc returned to work after his back surgery, his doctor
indicated that Moskerc had a permanent lifting restriction, prohibiting lifting,
pulling, or pushing anything exceeding 50-60 pounds. Moskerc fails to respond to
American’s arguments regarding whether he has a disability. Instead Moskere
attempts in his answer to gloss over the critical requirement of a disability to support
his ADA claims and proceeds to argue other aspects of his claim. However, all of
Moskerc’s ADA arguments in regards to his actual disability claim are for naught if
he cannot show that he had a disability.

The only argument put forth by Moskerc in this regard is that American is
somehow being inconsistent when it argues that Moskerc did not have a disability on
one hand and argues that he was unable to perform the essential functions for the

original CSM position. (Ans. 10). However, Moskerc’s argument merely depicts



motion for summary judgment is not simply 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 material fact exists when "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); Insolia v. Philip Morris, Inc. 216
F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a
light most favorable to the non-moving party, and draw all reasonable inferences that
favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport

Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

I_ ADA Claims

The ADA prohibits covered entities, including private employers, from
discriminating against a qualified individual because of his disability. 42 U.S.C.§
12112(a). Specifically, the ADA provides “[n]o 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.” Jd. Under the ADA an individual has a



its decision on bad policy, or even just plain stupidity, goes nowhere as evidence that
the proffered explanation is pretextual”). American argues that even Moskerc
believed the Fueling CSM position was covered by the same written description as
the Passenger Services CSM, requiring a lifting ability up to 100 pounds. (R SF
29). Additionally, American argues that it believed the Fueling CSM is frequently
required to assist with the handling of very heavy fueling and de-icing equipment
which weighed anywhere from 60-80 pounds. The evidence clearly establishes that
American honestly believed the Fueling CSM position included a 100-pound lifting
requirement. Moskerc provided no evidence that American did not believe the
Fueling CSM was covered by the 100-pound lifting requirement. As noted above,
even if American decided based on incorrect information to deny Moskerc’s
application, pretext is not necessarily established. This court does not “sit as a
super-personnel department that reexamines an entity’s business decisions.” Dale v.
Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). Instead, this court’s sole
inquiry is whether the business’s decision was made on the basis of age, an
impermissible criteria, not whether a good decision results from correct information.
The record clearly shows that American made efforts to assist Moskerc find
new employment. The fact that American hired an ergonomist to reevaluate his

original CSM position and that Moskerc was returned to that position undercuts any

18



whether the claimant is unable to perform the tasks associated with her specific job.”
Id, at 781. Tasks central to most people’s daily lives include tasks such as lifting a
pencil, toothbrush, or “otherwise car[ing] for oneself... .” Id.. See Toyota Motor
Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002)(listing as examples of
tasks central to daily life in ADA case: walking, seeing, hearing, doing household
chores, bathing, and brushing teeth); Mays v. Principi, 301 F.3d 866, 869 (7th Cir.
2002)(suggesting in Rehabilitation Act case that walking, seeing, reproduction, and
the use of an arm would be tasks that are central to most people’s daily lives).
Moskerc’s answer is devoid of any mention to his tasks central to his daily
life. Instead he attempts to combine various elements and stages of his ADA claim
putting forth a collection of arguments that in total appear to claim that Moskere is
entitled to succeed on his ADA claim based simply on general notions of fairness.
The ADA is not intended to be a catchall protection for all that are injured and is not
intended to cover each and every mental or physical problem. See Christian v. St.
Anthony Med. Ctr., Inc., 117 F.3d 1051, 1053 (7* Cir. 1997)(stating that the ADA is
“not a general protection of medically afflicted persons. . . .). If Moskerc could not
perform the tasks of his CSM position and had a weight lifting restriction, he did not
automatically have a disability. See Mays, 301 F.3d at 869(indicating in

Rehabilitation Act case that a person that can lift ten pounds is not disabled and



toa i
. : Minfte Order Form (06/97) {oo /

Asi o| ‘United States District Court, Northern District of Illinois
na adeeate ae Samuel Der-Yeghiayan sing i a Sade
CASE NUMBER 02. C 710 DATE 5/10/2004
CASE Moskerc vs. American Airlines
TITLE
[ln 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:
(69) a Filed motion of [ use listing in “Motion” box above.]
(2) 0 Brief in support of motion due___.
(3) o Answer brief to motion due___. Reply to answer briefdue___
(4) Oo Ruling/Hearingon__—_—sset for__—_at
(5) a Status hearing{held/continued to] [set for/re-set for]on___—ssetfor___—_at
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_ at.
(7) o Trial[set for/re-set for]on__at
(8) o [Bench/Jury trial] [Hearing] held/continued to___ at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) CiLocal Rule 41.1 OOFRCP41(a\(1) OOFRCP41(a)(2).

(10) WM [Otherdocketentry] For the reasons stated in the attached memorandum opinion, the Court hereby
grants the defendant’s motion for summary judgment in its entirety. All pending dates and motions are
hereby terminated as moot. Terminating case. Enter Memorandum Opinion.

(¢8)) | For further detail see memorandum opinion attached to) the original minute order.]
No notices required, advised in open court.

No notices required, ft * unser of notices =
Notices mailed by judge's staff. : MAY 11 2004
Notified counsel by telephone,
Y | Docketing to mail notices.

date docketed,

Mail AO 450 form. nem mes
Copy to judge/magistrate judge.
courtroom {QL Dla lg
MW deputy’s
initials
Date/time received in ?
central Clerk's Office



March of 2001 he had “any reason to believe that [his] depression might prevent
[him] from working” Moskerc responded: “No.” (Moskerc dep. 271). Moskere
admits pursuant to Local Rule 56.1 that his depression symptoms are under control
since he began taking medication. (R SF 55),

Finally, Moskerc admits pursuant to Local Rule 56.1 that “he was able to
return to work in March 2001 and that he was capable, bothphysically and mentally,
at work—both at and outside of American.” (R SF 56). Moskerc also admits that he
“testified at his deposition . . . that he had no difficulty performing his major life
activities.” (RSF 54). Thus, it is no wonder that Moskerc attempts to sidestep the
disability issue because he readily admits that he did not have any difficulty
performing major life activities and attempts to claim an injustice because his golf
game has suffered and he has not felt like working on his antique car. Therefore, to
the extent that Moskerc claims an actual disability we grant American’s summary

judgment motion on the ADA claim.

B. “Regarded As” ADA Claim

As stated above, a person has a disability if his employer regards him as
“having such an impairment.” 42 U.S.C.§ 12102(2)(C). A plaintiff may establish a

disability under Subsection (2)(C) by showing that a “(1) a covered entity mistakenly

11


injury. Moskerc states that he “sometimes” has problem sleeping, but he in no way
indicates that any tasks central to his daily life are affected by his back injury.
(Moskerc dep. 263). In addition he indicates that his problem with sleeping is at
least in part due to his anxiety problem and his anxiety medication helps him get to
sleep. (Moskerc dep. 264). Moskerc admits that he was able to work on his antique
car, but claims that he did not simply because he was depressed. (Moskere dep.
267). Moskerc was asked at his deposition what jobs he applied for since 1998
outside of American jobs and he responded that he applied for jobs with other
airlines, a position with a ground handler, positions at various casinos in the
Chicagoland area, a position with a railroad, and a position with “TSA.” (Moskerc
dep. 230). When asked at his deposition whether he “could have physically
performed any of those jobs” Moskere responded: “Yes.” (Moskerc dep. 230).
Moskerc admits pursuant to Local Rule 56.1 that he is “currently working at
American without issues related to his back or lifting.” (R SF 57).

Moskerc also claims that he became depressed after the back injury and that
the depression was a disability. Moskerc admits pursuant to Local Rule 56.1 that at
his deposition he testified that he had some temporary difficulty with conjugal
relations with his wife but that he was later able to resume conjugal relations with

his wife. (R SF 55). When Moskerc was asked at his deposition whether or not in

10


his misunderstanding of the law surrounding the ADA. As will be explained below
it is entirely possible that an individual may not be able to continue in a job because
he cannot perform the essential functions of the job and yet still not have a disability.
The ADA prohibits discrimination against a “qualified individual with a
disability. . ..” 42 U.S.C. § 12112(a)(emphasis added). A qualified individual is
“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)(emphasis added). Thus, whether or not
Moskerc can perform the essential functions of the position is pertinent in
determining whether or not he is a qualified individual not to whether or not he has a
disability. In fact the caselaw surrounding the ADA is very clear that simply
because an individual cannot perform the tasks associated with his job does not
mean that he has a disability. See Mack v. Great Dane Trailers, 308 F.3d 776, 780
(7* Cir. 2002)(stating that “[a]n impairment that interferes with work-related tasks . .
. does not necessarily rise to the level of a disability within the meaning of the
ADA.”). The proper inquiry in determining whether an individual has a disability is
whether the individual has a “substantial limitation on a major life activity” and in
making such a determination the “central inquiry must be whether the claimant is

unable to perform the variety of tasks central to most people’s daily lives, not



Medical Department.” The statement cannot reasonably be considered an offer. It is
not a clear and definite promise of permanent employment or employment for any
duration of time. The statement contains no promissory language indicating a fixed
term of employment. It is no more than a general policy statement that American
would not discharge Moskerc because of his work related injury.

Furthermore, even if Moskerc could establish the traditional elements of
contract formation, in regards to the reinstatement rights section of American’s
extended medical leave policy, it is clear American did not breach the agreement.
The evidence clearly establishes that American honored its policy by returning
Moskerc to his position after reevaluating the lifting requirement. The policy
provided that Moskerc would be returned to his position “with approval of the AA
medical department.” Moskerc did not have clearance from American’s medical
department due to his personal doctor’s lifting restriction. In his answer to the
instant motion Moskerc’s only cogent response to this argument is that whether or
not the American medical department withheld medical clearance in bad faith and
without a justifiable basis is a question of fact for the jury. We disagree. Even if it
were a question of fact, Moskerc is only entitled to present such a question to a jury
if he has some evidence to support his position. He is not entitled to present the

question to the jury and allow the jury to speculate in the absence of evidence that

21


Moskerc failed to complete the required interview test. American ultimately hired
another candidate for the Lost Time CSM position. Moskerc also expressed interest
in an Analyst Manpower position. American alleges that this position requires even
greater computer skills, together with expertise in budgeting and cost analysis.
However, Moskerc never applied for this position and American offered the position
to another candidate.

During this time Moskere requested an accommodation review from
American’s Accommodation Review Board (“ARB”). The ARB is an advisory
panel made up of employees representing various sections of American’s workforce,
including American’s medical, human resources, operations, and legal departments.
American claims that the ARB’s general function is to consider employee requests
for accommodation and any employee may submit a request for an accommodation.
Moskerc submitted a request to the ARB asking to return to his CSM position
despite his lifting restriction.

In order to evaluate Moskerc’s request, American hired a professional
ergonomist to conduct a full-scale analysis of Moskerc’s original CSM position.

The ergonomist prepared a draft report and presented her findings to American in
December of 2001. Following a review of the report and discussion with operations,
American adopted the ergonomist’s findings and modified the original CSM position
lifting requirements to 55 pounds, effective July 15, 2002. American returned

Moskerc to his original CSM position one week later on July 22, 2002.


In regards to the positions applied for at American other than his original
CSM position Moskere fails to provide evidence sufficient for a reasonable trier of
fact to conclude that there was any improper actions by American or that Moskerc
had the necessary qualifications for some of the positions. In addition, Moskerc
failed to properly apply for a position and failed to properly complete the interview
process for another position.

Moskerc attempts to make much of the fact that American eventually changed
the job description for his original CSM position. However, American should not be
criticized for its actions such as hiring an ergonomist. It was the ergonomist’s study
that opened the door for Moskerc to return to his original position. Truly, what
incentive did American have to hire the ergonomist if the results were to be fodder
for Moskerc’s tale of mistreatment and civil litigation. In fact, American should be
commended because it did everything that could be asked of an employer. Moskerc
was injured on the job. He was put on medical leave and when he returned his
doctor’s lifting restriction did not match up with the current job description.
American made efforts to assist Moskerc in locating other employment, allowed him
to seek external employment while continuing to receive benefits, and hired an
ergonomist to reevaluate his original CSM position. After the investigation was

completed American returned Moskerc to his original position. Moskerc is

14



adverse employment action, and 4) “treated less favorably than younger, similarly
situated employees.” Id. Once a prima facie case is established the burden shifts to
the employer to offer a legitimate non-discriminatory reason for the employment
action and if such a reason is provided the burden then shifts back to the plaintiff to
show that the given reason is merely a pretext for unlawful discrimination. Jd.

Moskerc has failed to provide sufficient evidence to proceed under the direct
approach and will need to proceed under the indirect approach. In this case
Moskerc has failed to point to sufficient evidence that similarly situated employees
were treated more favorably than him. Moskerc was not qualified for the other
positions sought at American other than the CSM fueling position and his own
doctor’s note indicated that he was unable to perform the required weight lifting for
the position. Moskerc has failed to show that any of the individuals chosen for the
positions applied for by Moskerc were similarly situated.

For instance, Moskerc alleges that American discriminated against him
because of his age by rejecting him for the Lost Time CSM position and the Analyst
Manpower position. Moskerc admits pursuant to Local Rule 56.1 that the Lost Time
CSM position required extensive financial analysis and computer skills. (R SF 34).
Moskerc also admits that the position required that prospective hires have the ability

to download large volumes of data from mainframe computer systems into a

16



remedy. Moskerc received nearly seventeen months of medical leave and in March
of 2001 Moskerc’s doctor authorized him to return to work with a permanent lifting
restriction, prohibiting lifting, pulling, or pushing anything exceeding 50-60 pounds.

In March of 2001, when Moskerc returned to work, American’s written job
description for the CSM position required the employee to lift 100 pounds. Based
upon the lifting restrictions indicated by Moskerc’s doctor, American did not return
him to a CSM position. American conducted an internal search of available
openings. American also allowed Moskerc to apply to employers other than
American and to continue to receive benefits from American. American also
assigned Moskere a human resources representative to assist him in his job search
for other available positions.

Moskerc expressed interest in a Fueling CSM position. American claims that
the Fueling CSM position was subject to the same job description as Moskerc’s
previous CSM position requiring lifting up to 100 pounds. Based on this lifting
requirement, American stated that it could not consider Moskere for the Fueling
CSM position.

Moskerc later expressed interest in the Lost Time CSM position. American
claims that the Lost Time CSM position requires extensive financial analysis and
i strong computer skills. The Lost Time CSM position calls for mining through data
using various software packages, including Excel to generate various reports and

presentations for upper-level management. Although interested in the position,



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

EASTERN DIVISION
LOUIS M. MOSKERC, )
)
Plaintiff, )
)
v. ) No. 02 C 710

| )
AMERICAN AIRLINES, INC., )

Defendant. ) May ly y/]

C17)
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This. matter is before the court on Defendant American Airlines’ motion for
summary judgment. For the reasons stated below, we grant the motion for summary

judgment in its entirety.

BACKGROUND
Plaintiff Louis Moskerc (“Moskerc”) is currently an American Airlines
(“American”) employee working as a Customer Service Manager (“CSM”) at
O’Hare airport. Moskerc began working for American in 1967 and in 1994 he was
promoted to the Passenger Services CSM position (“original CSM position”). In
October of 1998 Moskerc suffered a back injury at work which required surgery to

\

4}


believes that a person has a physical impairment that substantially limits one or more
major life activities, or (2) a covered entity mistakenly believes that an actual,
nonlimiting impairment substantially limits one or more major life activities.”

Sutton v. United Air Lines, Inc,, 527 U.S. 471, 489 (1999). The record in this case
bears no indication that American ever regarded Moskerc as having a “substantial
limitation on a major life activity.” Moskerc returned to work in March of 2001 with
the lifting restriction from his doctor. He was otherwise authorized to work by his
doctor. American did not return Moskercto his old position, but it assisted Moskere
with a job search, set up interviews for other positions, and authorized him to seek
external positions. In addition, after the ergonomist determined that the weight
lifting restriction for Moskerc’s original position should be reduced, American
returned Moskerc to his original CMS position. Those actions are hardly the actions
of an employer that deems an employee as unable to work because of a substantial
limitation on a major life activity. Moskerc has utterly failed to provide any
evidence that would indicate that he was regarded as having a disability. Moskerc
cannot simply rely upon the restrictions listed in his doctor’s note to support his
“regarded as” claim. See Skorup v. Modern Door Corp, 153 F.3d 512, 515-16 (#*
Cir. 1998)(holding that “doctor’s work restriction” was not sufficient evidence to

support the plaintiffs “regarded as” claim). Therefore, to the extent that Moskerc

12



disgruntled because American would not instantly amend the job description for his
original CSM position based upon Moskerc’s own opinion and the opinions of other
workers. American has gone out of its way beyond any requirements contained in
the ADA to assist Moskerc in locating employment and in return Moskerc brought
the instant baseless suit. It is litigious employees such as Moskerc that diminish the
incentive for employers to assist employees in such situations when the employers
will face baseless suits such as this regardless of all the assistance provided by the

employers.

I ADEA Claims

The ADEA states that: “It shall be unlawful for an employer . . . to fail to hire
or discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s age. . ..”29 U.S.C. § 623 (a)(1). A plaintiff is required to
establish a prima face case for an ADEA claim either under the direct approach or
under the indirect burden-shifting approach. Schuster v. Lucent Technologies, Inc.,
327 F.3d 569, 573 (7" Cir. 2003). To establish a prima facie case of age
discrimination under the indirect approach, a plaintiff must show that he was: 1)

over 40 years of age, 2) performing his job in a satisfactory manner, 3) subject to an

15