involved making these sales offers, and even without being subject to disciplinary procedures,
there is no evidence that Cohen would be able to perform his job as an associate at Ameritech.
Cohen has exhibited an unwillingness to perform the call flow process, and this unwillingness
was not caused by his disability under the ADA. See Cameron y. Community Aid for Retarded
Children, Inc., 335 F.3d 60, 64 (2nd Cir. 2003) (finding that plaintiff was not qualified where her
conceded inability to get along with a subordinate was not caused by any actual disability under
the ADA); Hammel v. Eau Galle Cheese Factory, 2003 WL 21665133, at *8 (E.D. Wis. June 26,

2003) (employee who was unwilling to accept the essential tasks of his job was not qualified).

Cc. Assuming Arguendo That Cohen Is a Qualified Individual,
Ameritech Did Not Fire Cohen Because of His Disability.

The ADA does not relieve a disabled employee or applicant from the obligation to
perform the essential functions of the job. 29 C.F.R. § 1630. It is not unusual, or contrary to
federal law, for an employer to fire an employee who is not performing adequately in his job. A
court must not decide whether the employer's decision was correct but whether the decision was
honestly made in good faith upon nondiscriminatory reasons. See cf McCoy v. WGN Cont'l
Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992).

Cohen was fired by Ameritech not because he had an anxiety disorder but because he was
unable to perform his job. This contention is not seriously disputed by Cohen. Cohen was
continuously disciplined for not adequately performing, and his termination resulted from a

culmination of these disciplinary actions. There exists no evidence that this was a pretextual

~13-


2001, Ameritech informed Cohen that his failure to return to work on August 13th would result
in termination. (Am. Compl. at 25.) On August 13, 2001, Cohen spoke with his senior
manager and informed his manager that his doctor had not released him to return to work, but
Cohen's senior manager reiterated that Cohen would be fired if he did not return to work. (Am.
Compl. at { 25.) Cohen then filed a second charge with the EEOC on August 13, 2001, alleging
retaliation and discrimination in violation of the ADA. (Am. Compl. Ex. B.)

In late August 2001, Cohen suffered another anxiety attack after returning to work on
August 13, 2001, and took disability leave for an additional two weeks. (Dep. at 100.) Then, on
October 9, 2001, Cohen was suspended once again, pending termination for not making the
proper sales presentations. (Dep. at 79-80.) Finally, Cohen was terminated on November 2,
2001. (Dep. at 24.)

Since his termination, Cohen has lost three jobs with separate employers in a six month
period. He alleges this is due to his disabilities. (Dep. at 14-21; Pl. Aff. at 43.) Most recently,
Cohen began working in March 2003 with Salience Associates, Inc., but he alleges that he was
unable to continue to work because of his anxiety, so he resigned shortly after April 16, 2003.
(PI. Aff. at 4 1-3.) Cohen is now seeing Dr. Desapereira, a psychologist, through his wife's
insurance, and is taking Clonazepam and Paxil. (Dep. at 92.)

On September 20, 2001, the EEOC issued a determination relating to the charges Cohen.
had filed with the agency and found that the evidence obtained established a reasonable cause to
believe that Ameritech had discriminated on the basis of disability and had denied a reasonable
accommodation in violation of the ADA and furthermore, that the class action was reasonable.

(Am. Compl. Ex. C.) On August 2, 2002, Cohen received Right to Sue letters from the EEOC.

-4-


working." 29 C.F.R. § 1630.2(). This list is not all-inclusive. In making the determination of
which additional activities are "major life activities" a court must look to the significance of the
activity. Bragdon v, Abbott, 524 U.S. 624, 638 (1998). Cohen claims that he is substantially
limited in the major life activity of working.’

"When the major life activity under consideration is that of working, the statutory phrase
‘substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a
broad class of jobs." Sutton v. United Air Lines, Inc., 527 U.S, 471, 491 (1999). In essence, "the
impairment must substantially limit employment generally." Contreras, 237 F.3d at 762 (quoting
29 CFR. § 1630.2(j), App.). The inability to perform either a particular job for a particular
employer or a narrow range of jobs is not a disability. Roth v. Lutheran Gen. Hosp., 57 F.3d
1446, 1454-55 & n.13 (7th Cir. 1995). Cohen must demonstrate that his specific impairment
substantially limits his ability to perform the major life activity of working. See Schneiker v.
Fortis Ins. Co., 200 F.3d 1055, 1061 (7th Cir. 2000).

Cohen's impairment of anxiety disorder with depression substantially limits the major
life activity of working. From the record, it appears to be a continuous limitation upon his ability
to work. While at Ameritech, Cohen suffered from anxiety attacks whenever he thought about
going back to work. Subsequently, Cohen was employed in two other sales positions and one
manager trainee position which he either lost or quit due to his anxiety. He is not merely unable

to perform his job as an associate at Ameritech; rather, he has been unable to perform any job as

‘© {He also claims that he is substantially limited in the major life activities of sleeping,
breathing and interacting with other people. We doubt that there is enough evidence to support
this conclusion, but again, find it unnecessary to reach this issue as we find that he is
substantially limited in his ability to work.

-9-


discrimination cases this standard is applied with added rigor, because issues of intent and

credibility often dominate. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993).

II. Discussion

With this standard in mind, we now turn to the case at hand. The Americans with
Disabilities Act of 1990 was enacted to prohibit discrimination on the basis of disability. 42
U.S.C. § 12101. Therefore, "[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." 42 U.S.C. § 12112(a). To
qualify for relief under the ADA, Cohen must establish: (1) that he is a disabled person under the
ADA; (2) that he is qualified to perform the essential functions of his job with or without
reasonable accommodation; and (3) he has suffered an adverse employment action because of his
disability. See Pugh v. City of Attica, Ind., 259 F.3d 619, 626 (7th Cir. 2001); Krocka v.

Bransfield, 969 F. Supp. 1073, 1082 (N.D. Ill. 1997), This Court finds that Cohen is a disabled

5 "The term ‘covered entity’ means an employer, employment agency, labor organization,
or joint labor-management committee." 42 U.S.C. § 12111(2).

® “The term 'qualified individual with a disability’ means 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).

? "The term ‘disability’ means, with respect to an individual — (A) a physical or mental
impairment that substantially limits one or more of the major life activities of such individual,
(B) a record of such an impairment; or (C) being regarded as having such an impairment." 42
U.S.C. § 12102(2).

-6-



(Am. Compl. Ex. D, E.) The original complaint for this case was filed on October 15, 2002, and

amended on January 6, 2003. (Am. Compl. at J 30.)

Il, Summary Judgment Standard

The Court will award summary judgment when the movant can prove that there is no
disputed issue of material fact, and given the evidence presented, the Court should grant the
movant judgment as a matter of law. See Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). “The judgment sought shall be rendered forthwith if 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 party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). "Only disputes over facts that might affect the outcome of
the suit under the governing Jaw will properly preclude the entry of summary judgment." Liberty
Lobby, 477 U.S. at 248. The Court must view all the evidence in the light most favorable to the
nonmoving party and draw all appropriate inferences in the nonmovant's favor. See Cincinnati
Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). But if the
evidence only raises some minuscule doubt as to the material facts, summary judgment may be
granted. Liberty Lobby, 477 U.S. at 261. Our sole function is to decide whether sufficient
evidence exists to support a verdict in Cohen's favor. See Erjavac v. Holy Family Health Plus,
13 F. Supp. 2d 737, 742 (N.D. Ill. 1998). Accordingly, "[c]redibility determinations, weighing
evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a

motion for summary judgment." Jd. (citing Liberty Lobby, 477 U.S. at 255). In employment


psychiatrist, with anxiety disorder. A psychological condition such as anxiety disorder is an
impairment under the ADA. Krocka, 969 F. Supp. at 1083 (noting that depression constitutes a
mental impairment under the ADA).

The next question is whether Cohen's impairment substantially limits a major life activity.
The ADA does not protect all persons with impairments, only those individuals with
impairments that substantially limit a major life activity. Waggoner v. Olin Corp., 169 F.3d 481,
484 (7th Cir. 1999). "Substantially limits" means that "the person is either unable to perform a
major life function, or is significantly restricted in the duration, manner, or condition under
which the individual can perform a major life activity, as compared to the average person in the
general population." Contreras v. Suncast Corp., 237 F.3d 756, 762 (7th Cir. 2001); 29 C.F.R.
§ 1630.2(j). "In determining whether a disability ‘substantially limits' a person from performing a
major life activity, courts consider: (1) the nature and severity of the impairment; (2) the duration
or expected duration of the impairment; and (3) the permanent or long term impact, or the
expected long term impact of or resulting from the impairment." Erjavac, 13 F. Supp. 2d at
742-43 (citing 29 C.F.R. § 1630(j)(2)). However, difficulties do not have to be insurmountable
in order to constitute a significant limitation. Jd. at 743.

"Major life activities" include, but are not limited to, "functions such as caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and

°(...continued)
Tobacco, L.P. v. N. Atl. Trading Co., 254 F. Supp. 2d 985, 993 (N.D. Ill. 2002). Regardless, as
Ameritech does not dispute that Cohen has an impairment under the ADA, and because we find
that Cohen is disabled, his other impairments do not significantly affect our analysis, although we
do note that he most likely has produced insufficient evidence that his other alleged impairments
substantially limit any other major life activities.

-8-


> Saute Ordersionm (06/97)

ug

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Martin C. Ashman

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 C 7378 DATE 12/23/2003
CASE Alan Cohen vs. Ameritech Corporation
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qa) im Filed motion of [ use listing in “Motion” box above.]
Q) o Brief in support of motion due
@) Oo Answer brief to motion due . Reply to answer brief due.
(4) a Ruling/Hearing on set for at
(5S) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) ia Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) Oo Trial[set for/re-set for] on at
(8) Qa [Bench/Jury trial] [Hearing] held/continued to at
(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) Local Rule 41.1 CFRCP41(a\(1) CO FRCP4i(a)(2).
co) {Other docket entry] | Enter memorandum opinion and order. Defendant’s motion for summary
judgment [19-1] is granted. Defendant’s motion to strike class allegations [19-2] is granted. Defendant’s
motion to strike portions of plaintiff's Local Rule 56.1 statement in opposition to defendant’s statement
in support of its motion for summary judgment [25-1] is denied.
a) @ {For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required.
uv [ Notices mailed by judge’s staff.
Notified counsel by telephone,
Docketing to mail notices.
JY | Mail AO 450 form
Copy to judge/magistrate judge.
vas2003
courtroom dave mailed notice
Is deputy’s s
initials

YL Datelfinielrebeivedin
central Cietk’s Office

mailing deputy jitials



B. Cohen Is Not Qualified To Perform the Functions of His Job,
With Or Without Reasonable Accommodation.

Cohen must next establish that he is a qualified individual. A qualified individual with a
disability 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). Ifan employee cannot do his job even with a reasonable accommodation,
he will have no claim under the ADA. Matthews v. Commonwealth Edison Co., 128 F.3d 1194,
1195 (7th Cir. 1997).

An employer must make a reasonable accommodation for a qualified individual unless
the employer demonstrates that the accommodation would impose an undue hardship on the
operation of the business. 42 U.S.C. § 12112(b)(5)(A) & (B). An employer is not required to
give a disabled employee preferential treatment over other employees. Williams v. United Ins.
Co. of Am., 253 F.3d 280, 282 (7th Cir. 2001). In accommodating an employee, an employer
must consider the feasibility of assigning an employee to a different job in which his or her
disability will not be an impediment to full performance, and if the reassignment is feasible and
does not require the employer to turn away a superior applicant, the reassignment is mandatory.
E.E.0.C. y. Humiston-Keeling, Inc., 227 F.3d 1024, 1027 (7th Cir, 2000).

Cohen is not a qualified individual because he cannot perform his job as an associate for
Ameritech with or without reasonable accommodation. Cohen's anxiety primarily stems from the
remote monitoring by Ameritech managers and the resulting disciplinary procedures. (Dep. at
94.) If Cohen's job produces anxiety attacks that prevent him from even attending work, then

Cohen cannot not reasonably be found qualified to perform his job. When a new call flow

-ll-


a sales associate since his diagnosis with anxiety disorder. (Dep. at 14-21; Cohen Aff. at § 1-3.)
He has not been able to perform either telephone sales jobs or face to face sales jobs. (Id.) It is
apparent that Cohen is unable to work in a wide class of jobs: the sales industry.

Ameritech argues that Cohen admitted that he was able to perform other sales jobs"! and
urges the Court to ignore Cohen's "self-serving affidavit" that he was forced to quit his most
recent job at Salience due to his anxiety, See Cohen Aff. {3 ("Due to the anxiety and depression
from which I have continued to suffer since 2000, I was unable to continue working at Salience
Associates, Inc., and resigned on or shortly after April 16, 2003."). However, for purposes of this
motion for summary judgment, we must take the facts and all reasonable inferences in the light
most favorable to Cohen, the non-moving party. The loss of three jobs in six months indicates a
substantial inability to work.

Working is essential to providing for oneself and one's family. Cohen's inability to
perform this major life function produces a significant long term impact on Cohen. There are no
short term solutions; therefore, this Court finds that Cohen's anxiety disorder substantially limits

his major life activity of working.

"' For example, see Cohen's testimony at his deposition at page 21:

Q: And did you feel that you were able to do the job at Radio Shack,
especially the selling part of it?

A: Yes.
-10-



person as defined under the ADA, but he is not a qualified individual. However, even if Cohen

were a qualified individual, he was not terminated because of his disability.®

A. Cohen Is Disabled Under the ADA.

To show that he is disabled under the ADA, Cohen must show one of the following: (1)
he has a physical or mental impairment that substantially limits one or more major life activities;
(2) he has a record of such an impairment; or (3) he is regarded as having such an impairment.
See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. 84, 133 F.3d 1054, 1058 (7th Cir.
1998); 42 U.S.C. § 12102(2). Cohen only asserts that he is disabled under the first prong of this
definition.

An "impairment" is any psychological disorder or condition that affects one or more body
systems, or any mental or psychological disorder. 29 C.F.R. § 1630.2(h). However, "a disease
need not produce continuous, identifiable (to the casual observer) symptoms in order to
constitute an impairment." Evjavac, 13 F. Supp. 2d at 743. Using the above definitions, Cohen

has an impairment.? He has been diagnosed, by two clinical psychologists and one clinical

* This Court will not grant an injunction requiring Ameritech to correct policies or
procedures in determining disabilities of employees in compliance with the ADA because, in
spite of Ameritech's internal policies, Ameritech properly concluded that Cohen was not
protected under the ADA because he was not a qualified individual.

° Our analysis primarily focuses on Cohen's claim of disability from his anxiety disorder
and depression, even though he has now claimed that he is disabled due to his sleep apnea and
other problems. Ameritech argues that Cohen's claims have always focused on his anxiety
problems and that he cannot now amend his complaint through his other pleadings now that the
case has proceeded to the point of summary judgment. See Speer v. Rand McNally & Co., 123
F.3d 658, 665 (7th Cir. 1997); Zakaras v. United Airlines, Inc., 121 ¥. Supp. 2d 1196, 1213
(N.D. Ill. 2000). However, these impairments were revealed during discovery. See Republic

(continued...)

-7T-


Cohen claims that he suffered from anxiety due to remote monitoring and the
consequential disciplinary procedures accompanying his refusal to follow the call process;
therefore, Cohen began seeing Dr. Bakshy, a clinical psychologist, in June 2000. (Dep. at 94.)
Dr. Bakshy diagnosed Cohen with Panic Disorder without Agrophobia. (Bakshy Rep.)

Despite his anxiety, Cohen continued to work for Ameritech as an associate, but in
October 2000, Cohen was suspended for not making proper sales presentations in accordance
with the call process required of associates. (Dep. at 76-77.) As of December 2000, Ameritech
placed Cohen on a final warning for attendance. (Dep. at 86.) In February 2001, Cohen was
reprimanded and suspended once again for not following the call process. (Dep. at 75-76.)

Then, on February 15, 2001, Cohen suffered an anxiety attack while at work and went on
disability leave for several months. (Dep. at 79.) In March 2001, Cohen began seeing Dr. David
MeNéil, a clinical psychiatrist, who diagnosed Cohen with several psychological disorders,
including anxiety disorder which heightened when Cohen focused on returning to work. (Dep. at
94.) Dr. McNeil recommended that Cohen be assigned to another position. (McNeil Rep.) Asa
result of Dr. McNeil's findings, Cohen notified Ameritech of his disability and requested short
term disability benefits, job restructuring, a modified work schedule, and a transfer to another
position in order to accommodate his disability. (Am. Compl. at { 23.) However, Ameritech
denied Cohen's request for short term disability benefits on March 23, 2001. (Am. Compl. Ex.
A.) On April 25, 2001, Cohen filed a charge with the EEOC, alleging discrimination in violation
of the ADA. (Am. Compl. Ex. A.)

Next, Cohen took an additional leave from work and scheduled a return on August 13,

2001. In the meantime, Ameritech denied Cohen's request for accommodation, and on August 9,

-3-


reason for firing Cohen. Cohen did not suffer an adverse employment action due to his

disability; Ameritech would have fired Cohen, regardless of his disability.

D. Cohen Is Not Protected By The ADA; Therefore, Cohen Is Not
a Proper Class Representative, and the Class Allegations Must
Be Stricken.

Cohen is unable to assert a claim under the ADA on his own behalf, which precludes him
from satisfying the requirements for class certification. Under Rule 23 of the Federal Rules of
Civil Procedure, a class can only be represented by a party whose claims are typical to those of
the class. See Pehr v. Univ. of Chicago, 799 F. Supp. 862, 869-70 (N.D. Ill. 1992) (dismissing
the plaintiff's individual claim and ruling that consequently the class could not be certified). "An
individual bringing an action on behalf of a class must be a member of the class and ‘possess the
same interest and suffer the same injury! as members of the class." Chambers v. Am. Trans Air,
Inc., 17 F.3d 998, 1006 (7th Cir. 1994) (quoting Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208, 216 (1974)). Cohen attempts to bring a class action on behalf of Ameritech
employees who are disabled and otherwise qualified as defined under the ADA, but who were
deemed to be not disabled by Ameritech's internal review board. However, Cohen is not a
qualified individual’? under the ADA and was not fired because of his disability. He is not
protected by the ADA and cannot bring a cause of action based on its provisions. Cohen is not a

member of the class and cannot be its representative. Class allegations should be stricken.

"2 An employer has a duty to engage in an interactive process with a qualified disabled
employee to find a reasonable accommodation. See e.g. Erjavac, 13 F. Supp. 2d at 750-51
(employer must collaborate with employee when employee requests an accommodation). If the
employee is not disabled or otherwise qualified, the duty cannot arise. We do not need to reach
this issue as the class allegations will be stricken.

-14-



Copies have been mailed to:

GILBERT W. GORDON, Esq.
STEPHEN A. COHEN, Esq.

CHIP G. SCHONEBERGER, Esq.

Marks, Marks and Kaplan, Ltd.
120 North LaSalle Street

Suite 3200

Chicago, IL 60602

Attorneys for Plaintiff

DANUTA BEMBENISTA PANICH, Esq.

KIM A. LEFFERT, Esq.

ROBERT A. BLOOM, Esq.
COURTNEY L. BREEN, Esq.
Mayer, Brown, Rowe & Maw, L.L.P.
191 South LaSalle Street

Chicago, IL 60603-3441

Attorneys for Defendant


I. Statement of the Facts #

Alan Cohen was employed as a customer service associate ("associate") with Ameritech
from October 2, 1995 to November 2, 2001. (Dep. at 24.)> Asan associate, Cohen handled
customer concerns and was authorized to make sales recommendations to customers if he felt
such recommendations were appropriate. (Dep. at 25.) Then, in 1996, while Cohen was absent
for four months due to a triple bypass surgery, the call process for associates changed. (Dep. at
33-34.) Associates were now required to offer a specific set of products to each customer with
whom they spoke. (Dep. at 21, 26-27, 29, 33-34.) In addition, associates were now remotely
monitored‘ for disciplinary purposes; in the past, remote monitoring had only been used for
educational purposes. (Dep. at 28, 52.)

Cohen did not agree with the new call process put into place during his absence in 1996,
ostensibly because he was not trained for it; therefore, he refused to follow the call process
mandated by his employer, leading to Ameritech initiating disciplinary procedures against him.
(Dep. at 26, 29.) From 1996 through September 2000, Cohen was continually disciplined for not
making the proper sales presentations. (Dep. at 77-78.) In fact, Cohen received two final

warning letters: one on April 22, 1996 and a second on September 21, 2000. (Def. Ex. 2, 3.)

? The facts are taken from Plaintiff's and Defendant's Local Rule 56.1 Statements,
including Plaintiff's Local Rule 56.1 Statement in Opposition to Defendant's Statement in
Support of its Limited Motion for Summary Judgment. The Court denies Defendant's Motion to
Strike Portions of Plaintiff's Local Rule 56.1 Statement in Opposition to Defendant's Statement
in Support of its Motion for Summary Judgment.

* The deposition cites refer to Cohen's deposition taken April 7, 2003.

+ Remote monitoring is the act of Ameritech managers listening in on associates' phone
calls to ensure that the associates were following the correct call flow process.

-2-



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

ALAN COHEN, individually and on behalf
of all others similarly situated,

Plaintiff, Case No. 02 C 7378

v. Judge Martin C. Ashman
AMERITECH CORPORATION, a foreign
corporation d/b/a AMERITECH/SBC
GLOBAL NETWORK, SBC/AMERITECH
CORPORATION and SBC,

)
)
)
)
)
)
)
)
)
)
)
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, Alan Cohen, on behalf of himself and others similarly situated, seeks: (1)
preliminary and permanent injunctions requiring Ameritech Corporation to correct its policies in
determining the disabilities of employees so as to comply with the Americans with Disabilities
Act ("ADA"); (2) a judgment against Ameritech to compensate members of the discriminated
class; and (3) award of costs and attorney's fees. Before this Court is Ameritech's Limited
Motion for Summary Judgment, which requests: (1) the Court enter summary judgment in its
favor on Cohen's individual claim because he is not substantially impaired in any major life
activity and is not a qualified individual under the ADA, and (2) the Court strike the class
allegations because Cohen is not an appropriate class representative, thereby terminating this

proceeding.!

‘ The parties have consented to have this Court conduct any and all proceedings in this
case, including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(a).

aC


process was instituted at Ameritech in 1996, Cohen refused to follow the process by not offering
the products that Ameritech required him to offer as an associate. (Dep. at 26-31.) At the same
time, Ameritech also started using remote monitoring to ensure that the associates were
performing their jobs properly. (Dep. at 28.) Ifa supervisor found that an associate was not
performing his job properly, the supervisor took disciplinary measures. (Id.)

it would be unreasonable for Ameritech to exempt Cohen from remote monitoring or its
disciplinary measures; in fact, that would be showing preferential treatment to Cohen and his
disability. Furthermore, there are no other positions within Ameritech that Cohen can perform
that are not subject to disciplinary measures. Expecting an employer to withhold discipline from
an employee who is not performing up to expectations is not a reasonable accommodation.
Because there is no reasonable accommodation available which enables Cohen to perform the
essential functions of his job, he is not otherwise qualified.

Furthermore, even if Ameritech did not subject Cohen to disciplinary procedures, Cohen
would be unable to perform his job. Cohen refused to make sales offers in accordance with
Ameritech’s new call flow process. (Dep. at 26-31.) Cohen claimed that he was not properly
trained and therefore was unqualified to make the sales recommendations. (Dep. at 26-27.) This
has nothing to do with his disability. The evidence also shows that Cohen would not have made
the required recommendations even if he had been trained because he believed the call flow
process, which included making product recommendations, to be a waste of his time. (Dep. at
29-31.) He did not believe that he should be required to make product package recommendations
to people who he judged to be not interested in the package. Ameritech continuously disciplined

Cohen for refusing to perform the essential functions of his associate position. Cohen's job

-)2-


Because a class has not been certified, the dismissal of any other putative class member's

potential claims against Ameritech is without prejudice. See Pehr, 799 F. Supp. at 870.

IV. Conclusion
Cohen is not an otherwise qualified individual under the ADA. Moreover, Cohen was
not fired because of his disability; therefore Ameritech's motion for summary judgment is
granted. In addition, due to Cohen's inability to represent the class, Ameritech's motion to strike
class allegations is granted and a final order terminating this litigation will be entered. Finally,
Ameritech's Motion to Strike Portions of Plaintiff's Local Rule 56.1 Statement in Opposition to
Defendant's Statement in Support of its Motion for Summary Judgment is denied.

ENTER ORDER:

MARTIN C. ASHMAN
Dated: December 23, 2003. United States Magistrate Judge

-15-