On September 27, 1999, plaintiff began working for
defendant as a toll collector. On October 20, 2000, plaintiff
began work at 2:00 p.m. It is undisputed that, when he commenced
work, plaintiff was under the influence of alcohol, with a blood
alcohol level that exceeded the permissible limit for driving in
Illinois. There is also no dispute that being in such a
condition violated defendant's work rules. Plaintiff, however,
contends that this rule was not uniformly applied and that he was
treated more harshly than similarly situated White employees who
were intoxicated. He also contends that his alcoholism is a
disability under the ADA and that he was treated more harshly
than non-alcoholic employees who were intoxicated. He also
contends that, in violation of the ADA, defendant did not
properly accommodate or respond to his conduct.

Plaintiff does not contend that he has any direct
evidence of discrimination. Defendant contends that, under the
indirect method of proof, plaintiff cannot make out a prima facie
case of Title VII race discrimination because plaintiff cannot
show that he was meeting defendant's legitimate expectations.

See generally Davis v. Con-Way Transportation Central Express

Inc., 368 F.3d 776, 784 (7th Cir. 2004) (setting forth elements
of shifting-burden, indirect method of showing employment

discrimination). Citing Grayson v. O'Neill, 308 F.3d 808, 818
(7th Cir. 2002), cert. denied, 540 U.S. 824 (2003), and Peele v.

Country Mutual Insurance Co., 288 F.3d 319, 329 (7th Cir. 2002),


discussed, plaintiff does not provide competent evidence showing
that he was treated less favorably than non-alcoholics.

Plaintiff's other contention is that defendant has been
inconsistent regarding the reasons for his discharge, whether it
was because he was intoxicated while working or because he
allegedly refused to submit to "Med/Tox testing." These two
explanations are related. They are not so inconsistent that it
must be assumed that the stated reasons are pretext. In any
event, plaintiff has not otherwise shown that he was meeting his
employer's legitimate expectations. It is undisputed that he was
intoxicated while working. Thus, plaintiff has not presented any
evidence from which discrimination may be inferred. Since
plaintiff has not presented evidence supporting that he was
discriminated against because of an alcoholism disability, any
inconsistencies in defendant's explanation for his discharge are
immaterial.

IT IS THEREFORE ORDERED that defendant's motion for
summary judgment [8-1] is granted. The Clerk of the Court is
directed to enter judgment in favor of defendant and against

plaintiff dismissing plaintiff's cause of action with prejudice.

ENTER:

UNITHD STATES DISTRICT QUDGE

DATED: DECEMBER , 2004


contacted Plaza Supervisor Kathy Herrington and District
Supervisor Michael Wayne. Shortly after being contacted,
Herrington returned to the toll plaza. Plaintiff requested
permission to leave his booth and return to the plaza building.

Plaintiff went into an office in the plaza building.
Both Porro and Herrington were in the office. Porro asked
plaintiff if he had been drinking and he said he had not,
Thereafter, a State Trooper arrived who took plaintiff into the
State Police office in the plaza building. Plaintiff admitted to
the Trooper that he had been drinking and voluntarily agreed to
take a breathalyzer test. The result of the test was .13, which
is above Illinois's .08 limit for driving a motor vehicle. Wayne
arrived around 3:00 p.m., spoke to Porro, and then spoke to the
Trooper who informed Wayne of the breathalyzer results. Wayne
took plaintiff's employment credentials and informed plaintiff
that he was off work until further notice. Wayne thereafter
recommended that plaintiff's employment be terminated. Plaintiff
was provided written notice of the proceedings and was eventually
discharged effective November 13, 2000.

Plaintiff points to evidence that he contends shows two
White employees consumed alcohol, but were not discharged. The
evidence, however, does not support that those two employees were
similarly situated to plaintiff. One of these employees is
Jackie Cook. The only competent evidence that Cook was

intoxicated at the work site is plaintiff's own testimony. This



plaintiff contends he need not show that he met defendant's
legitimate expectations because he can show that non-African-
American employees who failed to meet the same expectations were
treated more favorably. It is unnecessary to resolve the
parties' dispute regarding the application of the indirect method
of proof in such a situation because plaintiff has not presented
evidence sufficiently supporting that any similarly situated non-
African-American was treated more favorably than he was.

It is undisputed that the following occurred regarding
plaintiff's discharge.* During the morning of October 20, 2000,
plaintiff completed drinking a bottle of gin that he had begun
drinking the previous evening. Prior to his going to a toll
booth to begin work at 2:00 p.m. that day, plaintiff was observed
by Assistant Supervisor Diana Porro. Porro thought that
plaintiff was acting strangely and might be under the influence
of alcohol or some other substance. Under an applicable
Directive of defendant, an employee being under the influence of
alcohol or a controlled substance while on duty was considered to
be a "major incident." The Directive further provided that the
State Police, Plaza Supervisor, and District Supervisor were to

be immediately notified. Consistent with the Directive, Porro

*In response to defendant's motion for summary judgment,
plaintiff filed a Local Rule 56.1(b) (3) (B) statement of
additional facts. He did not file any Local Rule 56.1(b) (3) (A)
statement responding to the facts contained in defendant's Local
Rule 56.1(a) (3) statement of material facts. Therefore, all the
facts contained in defendant's Local Rule 56.1(a) (3) statement
are deemed to be true. See Local Rule 56.1(a).


treated differently than non-alcoholics. Plaintiff apparently
contends that Cook and Slansky were non-alcoholics who were
treated more favorably than he was treated. As previously
discussed, Cook and Slansky were not similarly situated to
plaintiff. Also, there is no evidence as to Cook's and Slansky's
backgrounds. Plaintiff has not shown that they are non-
alcoholics nor whether defendant was aware of their status as
alcoholics or non-alcoholics.? Plaintiff has not shown that he
was treated less favorably than non~alcoholics.

Defendant argues that plaintiff has not shown that his
alcoholism makes him a qualified individual with a disability as
is necessary to bring a claim under the ADA. See Bekker v.

Humana Health Plan, Inc., 229 F.3d 662, 668-70 (7th Cir. 2000),

cert. denied, 532 U.S. 972 (2001). But even assuming plaintiff
has made a sufficient showing as to that element of his claim,
the ADA does not prohibit discharging an alcoholic for using
alcohol while working or being intoxicated while working. See 42
U.S.C. § 12114(c); Bekker, 229 F.3d at 671. Plaintiff agrees
that it does not necessarily violate the ADA to discharge him for
being intoxicated while working. He contends, however, that the
ADA prohibits treating him less favorably than non-alcoholics who

are drinking or intoxicated while working. As previously

*This is not meant to imply that either Cook or Slansky
is an alcoholic. The point is that plaintiff had the burden to
prove their status, but presented no evidence on the subject.


Minute Order Form (06/97)

a.

United States District Court, Northern District of Ilinois

fame of Assigned Judge Sitting Judge if Oth
4 Aone Magistrate Judge WILLIAM T. HART than Assigned Judge
CASE NUMBER 03 C 4984 DATE DECEMBER qG > 2004
t
CASE KOLINSKY HAYWOOD v. ILL. STATE TOLL HIGHWAY AUTHORITY
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintif¥, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(dy) oO Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] [set for/re-set for] on set for __at .
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) ao Trial{set for/re-set for] on at
(8) o ([Bench/Jury trial] [Hearing] held/continued to at
(9) i) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) ClLocal Rule 41.1 OO FRCP41(a)(1) OO FRCP41(a)(2).
ao) lf [Other docket entry] Defendant's motion for summary judgment [8-1] is granted.
The Clerk of the Court is directed to enter judgment in favor of defendant and
against plaintiff dismissing plaintiff's cause of action with prejudice.
(11) @f [For further detail see attached Memorandum Opinion and Order.]
No notices required, advised in open court,
2
No notices required. snber of nai
ov | Notices mailed by judge’s staff. a
Notified counsel by telephone. L479 2004
7 date docketed
Docketing to mail notices.
av | Mail AO 450 form. o amma gg docking deputy
Copy to judge/magistrate judge
a DEC. 9, 2004
eourtoon ony GSU Ree daze nis
ow depory's
initials nam
“Daieltime received in
central Clerk's Office analig initials



testimony only supports that it occurred on one occasion and that
Cook was off duty at the time. There is no competent evidence
that this incident was even reported to any superior. On another
occasion, it was reported to Herrington that Cook was intoxicated
while on duty, but Herrington smelled no alcohol and was told by
Cook that she had been diagnosed with diabetes. Herrington
concluded that Cook was not intoxicated at the time. Since there
is no competent evidence that Cook was intoxicated while on duty
or that supervisors were aware of Cook being intoxicated, she was
not similarly situated to plaintiff.

The other purported comparable is Frank Slansky.

Evidence supports that Slansky was a part-time employee who was
called into work on one of his off days. When he arrived at the
workplace, but prior to punching in, he informed Herrington that
he had been drinking on an expected off day. Herrington sent him
home before he began work and did not report the incident up the
chain of command. This is not a similar situation to that of
plaintiff. Slansky did not actually begin work while intoxicated
and, at the time he had been drinking, he was not expecting to be
called in for work.

Because plaintiff has not made out a prima facie case of
race discrimination, his Title VII claim will be dismissed on
summary judgment.

As to the ADA claim, plaintiff also has not shown that he

was meeting defendant's legitimate expectations nor that he was


Outlaw,

of a genuine issue of material fact." Logan v.
Commercial Union Ins. Co., 96 F.3d 971, 978 (7th
Cir. 1996) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986) (citation and internal quotation
omitted)). The moving party may discharge this
burden by "'showing'--that is, pointing out to
the district court--that there is an absence of
evidence to support the nonmoving party's case."
Celotex, 477 U.S. at 325, 106 S. Ct. 2548. Once
the moving party satisfies this burden, the
nonmovant must “set forth specific facts showing
that there is a genuine issue for trial." Fed.
R. Civ. P. 56(e). "The nonmovant must do

more, however, than demonstrate some factual
disagreement between the parties; the issue

must be 'material.'" Logan, 96 F.3d at 978.
"Irrelevant or unnecessary facts do not preclude
summary judgment even when they are in dispute."
Id. (citation omitted). In determining whether
the nonmovant has identified a "material" issue
of fact for trial, we are guided by the
applicable substantive law; "{o]nly disputes that
could affect the outcome of the suit under
governing law will properly preclude the entry of

summary judgment." McGinn v. Burlington Northern
R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996)
(citation omitted). Furthermore, a factual

dispute is "genuine" for summary judgment
purposes only when there is “sufficient evidence
favoring the nonmoving party for a jury to return
a verdict for that party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). Hence, a "metaphysical
doubt" regarding the existence of a genuine fact
issue is not enough to stave off summary
judgment, and "the nonmovant fails to demonstrate
a genuine issue for trial 'where the record taken
as a whole could not lead a rational trier of
fact to find for the non-moving party. . "
Logan, 96 F.3d at 978 (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986)).

259 F.3d at 837.


nonmovant. Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991,

994-95 (7th Cir. 2003); Palmer v. Marion County, 327 F.3d 588,

592 (7th Cir. 2003); Abrams v. Walker, 307 F.3d 650, 653-54 (7th
Cir. 2002). The burden of establishing a lack of any genuine
issue of material fact rests on the movant. Outlaw v. Newkirk,
259 F.3d 833, 837 (7th Cir. 2001); Wollin v. Gondert, 192 F.3d
616, 621-22 (7th Cir. 1999). The nonmovant, however, must make a
showing sufficient to establish any essential element for which
he will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Binz v. Brandt Construction
Co., 301 F.3d 529, 532 (7th Cir. 2002); Traylor v. Brown,

295 F.3d 783, 790 (7th Cir. 2002). The movant need not provide
affidavits or deposition testimony showing the nonexistence of
such essential elements. Celotex, 477 U.S. at 324. Also, it is
not sufficient to show evidence of purportedly disputed facts if
those facts are not plausible in light of the entire record. See

NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th

Cir.), cert. denied, 515 U.S. 1104 (1995); Covalt v. Carey
Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v.

Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.),

cert. denied, 488 U.S. 852 (1988). As the Seventh Circuit has
summarized:

The party moving for summary judgment
carries the initial burden of production to
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



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

poe
CEC 19 2004
KOLINSKY HAYWOOD,
Plaintiff,
Vv.

No. 03 C 4984

ILLINOIS STATE TOLL HIGHWAY
AUTHORITY,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Kolinsky Haywood is a former employee of
defendant Illinois State Toll Highway Authority. Plaintiff is
African-American and a recovering alcoholic. He alleges that
defendant discharged him due to race discrimination in violation
of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C. § 2000e et seq., and due to disability discrimination in
violation of the Americans with Disabilities Act ("ADA"), 42
U.S.C. § 12101 et seg. Presently pending is defendant's motion
for summary judgment.

On a motion for summary judgment, the entire record is
considered with all reasonable inferences drawn in favor of the

nonmovant and all factual disputes resolved in favor of the