have problems. He could not do his household chores. ... [H]e would be severely limited.”
(@.E. 59, Pl.’s Ex. 35 (Barron Dep.) at 18).) This evidence is not relevant, however, because
there is no evidence—contrary to Plaintiff's invitation to engage in a series of inferences and
speculations—that this diagnosis was communicated to anyone at Pace, much less a Pace
decisionmaker. If there were evidence of such communications, Green should have presented it
at this stage of the litigation. Instead, all that the record allowed Green to do was invite the
speculation that the information reached the Pace decisionmaker(s). Precedent teaches that such
speculation is not permissible. See Bell, 367 F.3d at 707; McCoy, 341 F.3d at 604.3

Second, Green suggests that Dr. Estrella of St. Francis Hospital, who worked for Pace
from time to time and consulted in this case, should be deemed an “agent” of Pace. Although
Pace vigorously disputes the notion that Dr. Estrella was its “agent,” even if one assumes that he
is, Green gets no help from Dr. Estrella. The issue is not whether any person associated with
Pace may have held known certain facts (e.g., the possible implications of certain medical
conditions), but whether a relevant Pace decisionmaker regarded Green as disabled. As
explained above, there is no triable issue of fact on that score. (See also D.E. 59, Pl.’s Ex. 32

(Heelan Dep.) at 18 (Heelan never spoke with Dr. Estrella or any other doctor); id, Pl.’s Ex. 33

8 Green also contends that “[b]ecause Pace was aware of [Green’s] NYHA classification,
Pace was correspondingly aware of [Green’s] dyspnea (shortness of breath) . . . and the like.”
(D.E. 58 at 13.) In support of this argument, Green cites—and only cites—paragraph seven of
Pace’s LR 56.1 statement. Green has provided no evidence that anyone at Pace was aware of the
NYHA classification at the time of his termination. In addition, while it is true that paragraph
seven of Pace’s LR 56.1 Statement states that Green suffered from, among other things, dyspnea,
Pace supports this assertion with the deposition testimony of Drs. Barron and
Katsamakis—Green’s own doctors—and an interrogatory response provided by Green. Thus,
Green’s reliance on this paragraph as support for his assertion is misplaced because it sheds no
light on Pace’s knowledge or beliefs at the time of Green’s termination.

19 .



to the proposed major life activity of driving, the weight of authority concludes that driving is not
considered a major life activity. See, e.g., Felix v. N.Y. City Transit Auth. 324 F.3d 102, 106 (2d
Cir. 2003) (driving is “not considered a major life activity”); Chenoweth v. Hillsborough County,
250 F.3d 1328, 1329-30 (11th Cir. 2001) (holding that driving is not a major life activity, and
stating that “millions of Americans do not drive, millions are passengers to work, and the
deprivation of being self-driven to work cannot be sensibly compared to inability to see or to
learn [which are examples of recognized ‘major life activities’]”); Colwell v. Suffolk County
Police Dep't, 158 F.3d 635, 643 (2d Cir.1998) (rejecting driving as a major life activity and
stating that it “cannot reasonably be deemed major league”). To be sure, the view is not
monolithic, particularly as to the issue of whether driving can be a major life issue where it
affects other aspects of life beyond driving itself. See, e.g., Dutcher v. Ingalls Shipbuilding, 53
F.3d 723, 726 (Sth Cir. 1995) (factoring driving into a determination concerning major life
activity of “taking care of oneself” along with several other factors such as vacuuming, washing
dishes, and carrying groceries with impaired hand). The Seventh Circuit has not decided the
issue. See Sinkler v. Midwest Prop. Mgmt. Ltd. P’ship, 209 F.3d 678, 685 (7th Cir. 2000)
(“Although the Second Circuit has concluded that driving is not the type of endeavor that may be
characterized as a major life activity, see Colwell, 158 F.3d at 643, we need not reach that
issue.”).

After reviewing the authority cited above, and the specific manner in which Green has
framed his argument, the Court finds that driving, in-and of itself, is not an activity “of central
importance to daily life” in the context of this case. Toyota, 534 U.S. at 197. To resolve this

question, the Court need not and does not purport to decide whether or to what extent limitations

13


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Inc., 165 F.3d 460, 467 (6th Cir. 1999). Two district courts in this circuit have also held that no
duty of accommodation exists where an ADA plaintiff is not actually disabled but only claims he
is “regarded as” disabled. See Cebertowicz v. Motorola, Inc., 178 F. Supp. 2d 949, 953-54 & n.8
(N.D. Ill. 2001) (Shadur, J.); Ross v. Matthews Employment, No. 00-1420, 2000 WL 1644584, at
*5 (N.D. Ill. Oct. 27, 2000) (Conlon, J.).

Despite this weight of authority, at least one circuit court has reached the opposite
conclusion. See Katz v. City Metal Co., 87 F.3d 26, 33-34 (1st Cir. 1996). And the extended
analysis of the issue in Jacques v. DiMarzio, Inc., 200 F. Supp. 2d 151, 163-171 (E.D.N.Y. 2002)
(Block, J.), which held that “regarded as” plaintiffs were not precluded from accommodation
protections, shows, at a minimum, that the question is one on which reasonable people can
disagree.

The Court need not weigh into this debate. As explained below, even if Green can
potentially qualify for accommodation obligations, the record in the case shows that Green’s case
again should be dismissed for the alternative and independent reason that he cannot establish a
successful accommodation claim.

1. Judge St. Eve’s January 29 Order

The analysis of the accommodation question is substantially influenced by an order of
Judge St. Eve issued before the case was reassigned to this Court. On January 29, 2004, Judge
St. Eve denied Plaintiff's motion for leave to amend his complaint to add a failure to
accommodate claim. Judge St. Eve held that Green’s failure to accommodate claim was futile
because it would not survive a motion to dismiss. In this regard, Judge St. Eve found that the

proposed failure-to-accommodate claim was beyond the scope of Green’s EEOC charge and that

23



and Drs. Katsamakis and Barron thereafter continued to treat him on an out-patient basis (id. 7]
27-28). Dr. Basron did not release Green to return to work upon his discharge. (Id. § 26.) Green
met with Dr. Katsamakis on July 6, 2001, and Dr. Katsamakis instructed Green to refrain from
working until he was evaluated by Dr. Barron. (/d. 27.) Dr. Barron examined Green on July
19, 2001, and he determined that Green’s congestive heart failure had not resolved. (/d. | 28.)
Although Dr. Barron wrote a note at that time stating that Green could return to work on a part-
time basis, it is undisputed that Dr. Barron testified that he did not intend to release Green back
to work as a bus driver. (Jd. ¢29.)* Rather, Dr. Barron, Green’s own physician, made clear that
he intended to release Green back to work in some other capacity that would require less exertion
and would alleviate the dangers associated with his condition. (Ja. 430.) Indeed, Dr. Barron
testified that he assumed that Green would vot return to work as a bus driver. (Jd. 31.)
Although Dr. Barron was not familiar with (and did not consult) the DOT regulations at this time
(id. J 32), Dr. Barron testified that he would not have certified Green to drive a bus on July 19,
2001, had he been aware of the DOT regulations (id. $34).

Michael Cutler (“Cutler”) is the Safety Training Manager for Pace’s North Shore
Division. (d. J 19.) He is responsible for ensuring that Pace complies with its policies and
procedures regarding DOT certifications. (/d. { 20.). Green gave Dr. Barron’s note to Cutler on
July 19, 2001. (PI.’s St. | 8.) However, because Green had missed more than five days of work

due to his hospitalization (Def.’s St. { 37), Cutler directed him to Dr. Efren Estrella of St. Francis

‘ Green disputes certain allegations relating to-Dr. Barron to the extent that the allegations
imply that Pace knew of Dr. Barron’s intent at the time Pace terminated Green. The Court has
reviewed the material cited by Pace in support of these allegations and the cited facts reflect the
deposition testimony of Dr. Barron that is proffered in support of these allegations, which Green
does not dispute.


eee a

transfer to one of the three positions he identifies, Green still would come up short. The
positions of building maintenance person and cleaner both required DOT medical
certification—which Plaintiff conceded his doctors would not give him. See, e.g., Humiston-
Keeling, 227 F.3d at 1028 (“{E]mployer is not required ‘to reassign a disabled employee to a
position when such a transfer would violate a legitimate, nondiscriminatory policy of the
employer.””); Dalton, 141 F.3d at 678. Moreover, the position of “folder” was only “technically
vacant” when Green was terminated. (D.E. 59, Pl.’s Ex. 31 (Roglich Dep.) at 38).) At the time
Plaintiff was fired, the position was being filled by use of a temporary employee through
September 2001 because of budgetary constraints and a corresponding job freeze for lower level
positions. (Jd. 38-39.) After September 2001, the funding for the position ran out entirely and it
was not filled with a permanent employee until September of 2002. (Id. at 39.) Asa result,
when Plaintiff was fired in August of 2001, the position was not a viable transfer accommodation
because of the hiring freeze and use of the temporary worker to fill the slot. (Id. at 40-42.)
Precedent makes clear that Pace is not required by the ADA to put Plaintiff into an otherwise
unavailable position as an accommodation. See, e.g.,. Ozlowski, 237 F.3d at 841 (employer need
not fill vacant slot if it decided to keep position unfilled for reasons unrelated to plaintiff's
disability); Hansen, 233 F.3d at 523 (employer need not terminate an existing employee to
accommodate an ADA plaintiff); Pond, 183 F.3d at 596 (employer need not “bump” an existing

employee, even one with less seniority, to accommodate an ADA plaintiff).

34



(Fardoux Dep.) at 22-23 (Fardoux never spoke with Dr. Estrella); id., Pl.’s Ex. 29 (Estrella Dep.)
at 32 (Dr. Estrella never spoke with anyone regarding whether Pace should fire Green, and Dr.
Estrella did not even know Green was fired until receiving a subpoena in this litigation).)

B. Mr. Green Is Not A Qualified Individual Under The ADA

Mr. Green’s suit also is subject to summary judgment because the record makes clear that
he cannot satisfy his burden of showing that he was a qualified individual within the meaning of
the ADA. Summary judgment is independently warranted on this alternative ground.

Assuming, arguendo, that Mr. Green could establish that Pace regarded him as disabled,
he still bears the additional burden of showing that he was a qualified individual for purposes of
the ADA. See Dyke v. O'Neal Steel, Inc., 327 F.3d 628, 632 (7th Cir. 2003). “The ADA
proscribes discrimination against only ‘qualified individual{s] with a disability.”” Bombard, 92
F.3d at 563 (quoting 42 U.S.C. § 12112(a)). 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); accord
Ammons, 368 F.3d at 818. The determination as to whether the individual is a “qualified
individual with a disability” must be made as of the time of the adverse employment decision.
See, e.g., Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir.1996). As set forth below,
Green’s ADA claim fails for the alternative and independent reason that he cannot meet this
burden.

The Seventh Circuit employs a two-step analysis to determine if an individual with a
disability is qualified for a particular job. See Basith v. Cook County, 241 F.3d 919, 927 (7th Cir.

2001); Bombard, 92 F.3d at 563 (citing 29 C.F.R. app. § 1630.2(m)). Specifically, the Seventh

20



lam a part-time Bus Operator and began my-employment with Respondent on

February 26, 2001. On June 25, 2001[,] I became ill and was subsequently

diagnosed with a disability. On July 18, 2001[,] my doctor released me to return

to work on my former part-time schedule. Respondent refused to put me back to

work and said | could not return for six months. I believe I was discriminated

against because of my disability in violation of Title I of the Americans with

Disabilities Act of 1990.
(D.E. 59, Pl.’s Ex. 23 (Charge of Discrimination).) In his summary judgment response, Green
does not appear to argue that the text of Green’s EEOC charge includes a failure to accommodate
claim, and it clearly does not. Rather, Mr. Green argues that he checked off “the box for
‘disability’ [on the EEOC charge] and, consequently, any matter that is reasonably related to
same that could have reasonably developed from same is actionable in this litigation.” (D.E. 58
at 21.) The Court respectfully disagrees. This contention, without more, is in direct conflict with
the Seventh Circuit precedent, which precedent Judge St. Eve relied on in her January 29 order.
Indeed, as noted above, in National Steel, the Seventh Circuit held that a failure to accommodate
claim and a discriminatory treatment claim under the ADA “are not like or reasonably related to
one another, and one cannot expect a failure to accommodate claim to develop from an
investigation into a claim that an employee was terminated because of a disability.” See Nat’!
Steel, 197 F.3d at 898; accord Brown y. Carrier Corp.; No. 02-316, 2003 WL 22016372, at *6
(S.D. Ind. Aug. 19, 2003); Shannon v, Sheahan, No. 01-252, 2003 WL 366584, at *10 (N.D. Ill.
Feb. 18, 2003). Notwithstanding that Judge St. Eve expressly relied on National Steel in her
order, Green has not even suggested a basis for distinguishing the case and Plaintiff simply
ignores National Steel in his summary judgment brief.. Given Judge St. Eve’s reliance on the

Seventh Circuit’s teaching in National Steel and Plaintiff's failure even to address it, the Court

cannot say Judge St. Eve’s order is clearly erroneous.

26



certification), and he seeks to establish his qualified status by arguing that he could perform this
essential function if Pace granted him a reasonable accommodation. See 42 U.S.C. § 12111(8).

Plaintiff's desire to proceed to the reasonable accommodation issue is prudent, given that:
Green acknowledges that DOT certification is an essential function of a Pace bus driver’s job
(Def.’s St. | 23); Green’s own doctor would not certify him under the DOT regulations (id. | 46);
and Pace has no discretion to allow an employee who has not obtained DOT medical clearance to
drive a bus (id. 24). The issue then, which is intertwined with a previous ruling by Judge Amy
St. Eve in this case, is whether Mr. Green can meet his burden of establishing that he can perform
the essential function of his job (whether it is properly viewed as DOT certification or driving)
with a reasonable accommodation.

As a threshold matter, there is substantial authority that holds that Plaintiff's “reasonable
accommodation” claim fails at the outset as a matter of law because Plaintiff only claims that he
was “regarded as” disabled by the Defendant as opposed to being actually disabled. In Weber v.
Strippit, Inc., 186 F.3d 907, 917 (8th Cir. 1999), for example, the Eighth Circuit held “that
‘regarded as’ disabled plaintiffs are not entitled to reasonable accommodations” because “[t]he
ADA cannot reasonably have been intended to create a disparity in treatment among impaired but
non-disabled employees, denying most the right to reasonable accommodations but granting to
others, because of their employers’ misperceptions, a right to reasonable accommodations no
more limited than those afforded actually disabled employees.” At least two other circuit courts
have held to the same effect, see Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1232 (9th
Cir. 2003), Newberry v. East Texas State Univ., 161 F 3d 276, 280 (Sth Cir. 1998), and the Sixth

Circuit has reached the same conclusion, albeit likely only in dicta. See Workman v. Frito-Lay,

22

(GREE eT EE EEE EE BE


Cc. Given The Independent And Alternative Bases For Summary Judgment, The Court Need
Not Analyze The Pretext Issue

Defendant argues that it is alternatively entitled to summary judgment on the basis that
the record dictates the conclusion that Pace’s reason for terminating him was not a pretext for
disability discrimination. The Court need not address this argument. As explained above, there
are multiple, independent reasons why Plaintiff's claim fails and why summary judgment is
warranted. Despite the fine pro bono efforts of Plaintiff's counsel, the record reveals that Pace
did not engage in unlawful discrimination when it refused to allow him to work in a position and
thereby terminated him from a job for which he could not be medically certified under DOT
regulations and corporate policy.

CONCLUSION

For the foregoing reasons, Pace’s Motion for Summary Judgment is granted and its
Motion to Strike is denied as moot.

So ordered.

Md. tbo
Mark Filip add
United States Distritt Judge

Northern District of Illinois

Dated: JUL 9 - 2004

35



consistent with common experience—that these public transportation specialists were focused on
the nuances of cardiac medicine, rather than being concerned with the bottom-line consideration
that Plaintiff simply could not get the appropriate licensing or certification to drive a public
transportation vehicle.’

Even more relevant, to the extent that Plaintiff can show that the decisionmakers had at
least potential exposure to the specifics of the medical diagnoses (see, e.g., D.E. 59, Pl.’s Ex. 17
(medical form from Dr. Estrella to Cutler, that wag forwarded to supervisors, stating that Green
was “unable to perform his duties safely at this time. Await clearance by PMD re: dilated
cardiomyopathy”) (cited by Plaintiff at D.E. 58 at 7)) Plaintiff identifies no evidence whatsoever
that this exposure to any medical terms led the decisionmakers to come to any assessments
concerning whether Plaintiff was disabled as to any of the major life activities that Plaintiff
proposes. Precedent teaches that even if Pace was aware of Green’s IDC or any related condition
such as dyspnea, mere awareness of a potential medical condition does not, standing alone,
support an inference that Pace regarded Green as substantially limited in any of his proposed
major life activities. See Skorup, 153 F.3d at 515; accord, e.g., Kelly v. Drexel Univ., 94 F.3d
102, 109 (3d Cir. 1996) (holding that the fact “that an employer is aware of an employee’s

impairment is insufficient to demonstrate either that the employer regarded the employee as

2 Plaintiff appears at times to question whether the physicians in this case (including, most

notably, his own doctors) were correct when they diagnosed him and refused to give him DOT
certification prior to his Pace termination. Precedent teaches, however, that an employer is
entitled to rely on medical determinations made by medical professionals, including, of course,
the plaintiff's own physicians. See, e.g., Bay, 212 F.3d at 974 (collecting cases); see also
Murphy, 527 U.S. at 522 (“Had a physician examined petitioner and, in light of his medical
history, declined to issue a temporary DOT certification, we would not second-guess that
decision.”).

17

Eee |


aware of his IDC. See, e.g., Skorup, 153 F.3d at $ 15, Rather, Mr. Green must show that Pace
knew of the IDC, and he must produce some evidence, direct or circumstantial, from which a
jury could conclude that Pace regarded him as substantially limited in a major life activity
because of it. See Mack, 308 F.3d at 783; Skorup, 153 F.3d at 515,

A major life activity is an activity of “central importance to daily life.” Toyota Motor
Mfg., Ky., Inc v. Williams, 534 U.S. 184, 197 (2002). EEOC regulations interpreting the ADA
identify the following non-exhaustive list of major life activities: “‘caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Skorup,
153 F.3d at 514 (quoting 29 C.F.R. § 1630.2(i)). “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 particular 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) (citing 29 C.F.R. § 1630.2())).6 Green has the burden of selecting
which of his major life activities he will attempt to prove Pace regarded his IDC as substantially
limiting. See Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th Cir. 2001). Specifically,
because Plaintiff has identified Heelan as “the person who decided to fire Green” (D.E. 58 at 12,
14), Heelan therefore is the operative decisionmaker, and Green must demonstrate that Heelan
regarded or perceived the IDC to substantially limit Green’s proffered major life activities. See
Rakity v. Dillon Cos., Inc,, 302 F.3d 1152, 1163 (10th Cir, 2002); Deas v. River West, L.P., 152

F.3d 471, 476 n.9 (Sth Cir. 1998). In an attempt to meet this burden, Mr. Green contends that

s The Seventh Circuit instructs that “[uJnder the ADA, the concepts of ‘substantially limits’
and ‘major life activity’ are the same whether the employee is proceeding under a claim that [the
employee] is actually disabled or regarded as disabled.” Mack, 308 F.3d at 781.

9


Lae SPR Pee PLP var aPC FT SSPE SS SU NEN FT SEDSFUEED-OEhate seme

“[nJothing in the ADA requires an employer to abandon its legitimate, nondiscriminatory
company policies defining job qualifications, prerequisites, and entitlements to intra-company
transfers.” Dalton, 141 F.3d at 678. And an employer need not fill a “vacant” job slot that it
otherwise had chosen not to fill based on a reason independent of the employee’s disability. See
Ozlowski, 237 F.3d at 841.

Green states that he bears the burden of showing both that a vacant position exists and
that he is qualified for that position. (D.E. 58 at 16.): Green suggests three positions that were
available: (1) folder; (2) cleaner; and (3) building maintenance person. (/d.) In support, Green
relies on Plaintiffs Exhibit 26, which lists, among other things, jobs that were vacant at Pace on
both August 16, 2001, and August 31, 2001. (Pace terminated Green on August 25, 2001.)
None of these positions, however (as demonstrated by Green’s own documents), were available
at Pace’s North Shore Division, for which Green was employed. Instead, the only positions that
were vacant at the time of Plaintiff's termination at North Shore were positions of mechanic and
bus operator, and both of those positions required a DOT medical certification. (D.E. 59, Pl.’s
Ex, 26; id., Ex. 32 (Heelan Dep.) at 38-41.)

With regard to the proposed positions outside of the North Shore Division (that is, the
three positions Plaintiff actually identifies), it bears mention that the record establishes that the
various divisions of Pace were responsible for hiring and firing their own employees, and each
division effectively was its own employment center—complete with its own union/management

structure. (D.E. 59, Pl.’s Ex. 31 (Roglich Dep.) at 34-35.)'” If a vacancy existed in another

" Green acknowledges that Pace considers each of the separate divisions to be separate
employers. (D.E. 58 at 2 n.1.) ‘

32



does not dispute . . . [that] he ‘did not ask for any accommodation other than to be returned to his
position.’” (D.E. 58 at 20 (quoting Judge St. Eve’s fan. 29 Order).) Green contends that “[w]hile
it may be odd to ask for the ‘accommodation’ of being returned to one’s job, itis...
[nonetheless] a request for an accommodation.” (Jd. at 21.) Despite pro bono counsel’s diligent
efforts to create an accommodation request for Plaintiff, however, it appears clear that under
Miller, Plaintiff's request to be returned to the driving role for which he was not certified is not a
request for accommodation at all. It is, instead, a request to be placed in the job in contravention
of company policy (which in turn is based on DOT safety regulations), without any waiver of the
DOT certification requirement. Not surprisingly, the law does not require such a step. See, e.g.,
Gile, 95 F.3d at 499 (“The ADA may only require an employer to reassign a disabled employee
to a position for which the employee is otherwise qualified”). Green also cites a portion of his
deposition testimony where he alleges that Green asked Cutler, his immediate supervisor, to
drive vans for Pace instead of his existing duties driving buses and shuttle buses for Pace. (D.E.
58 at 19.) Whatever engineering distinction, if any, might exist be between a “van” and a
“shuttle bus,” the salient issue here is that it is undisputed that a van driver position required the
same DOT certification that Plaintiff was unable to obtain. Miller teaches that where an
employee has asked for the functional equivalent of the position for which she is unqualified, that
does not put the employer “on notice to search out such [other] jobs in order to determine
whether there was one that she might fill.” Miller, 107 F.3d at 487. In Miller, the employee
stated that she “would even be willing to take the officer’s uniform off,” and would take “a
position within the facility that would be appropriate for my professional experience and

background,” and the Court found that in effect Plaintiff wanted to remain “a correctional officer

29


DOT criteria/Pace corporate policy concerning driving a bus (id. 52). After considering Dr.
Katsamakis’s evaluation and the DOT regulations, Dr. Estrella determined that Green should
immediately be taken out service for six months. (/d. 53.) Dr. Estrella made this determination
due to his concerns with Green’s IDC, which is known to cause, among other things, sudden
syncope (passing out). (Jd. § 54.) On July 30, 2001, Dr. Estrella informed Cutler that Green was
removed from service for six months. (Jd. § 62; Pl.’s St. $ 18.)

On August 25, 2001 (presumably one day before the expiration of Green’s six-month
probationary period), Cutler and Fardoux drove to Green’s home and left a letter that terminated
Green’s employment with Pace. (PI.’s St. ] 25.) Two weeks after Pace discharged Green, Green
began another full-time job as a janitor. (Def.’s St. 67.) No restrictions were imposed on
Green’s janitorial activities. (Jd. { 70.) The position required Green to perform physical tasks
such as mopping, shampooing, and lifting. (Jd. $71 ) Furthermore, Green was able to walk, run,
and lift during this time (id. J 69), and he did not consider his daily activities to be restricted (d.
68). Green also did not consider himself to be restricted at the time Pace fired him, and does
not contend that he actually was disabled at that time. (/d {J 68, 74.)

DISCUSSION
L Summary Judgment Standard

Summary judgment is appropriate “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 materia) fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Federal Rule of Civil Procedure 56(c) “mandates the entry of summary judgment, after adequate


Hospital (id. {{[ 38-39), in accordance with Pace policy. (id. 135). Dr. Estrella has performed
physical examinations for employers since 1989 and for Pace since 2000. (/d. $140.) Dr. Estrella
is familiar with DOT regulatory criteria for evaluating commercial bus drivers. (Id. 41.)
Cutler was Dr. Estrella’s contact person at Pace. (Pl.’s St. 21.) Cutler in tum reported to
Green’s supervisor, Christopher Fardoux (“Fardoux”), who is responsible for supervising bus
drivers and street operations at Pace North Shore; Fardoux’s superior, in turn, was William
Heelan (“Heelan”). (Jd. J] 21-22.) Dr. Estrella did not give Green an independent physical
examination (id. { 9); instead, he considered a medical certification form signed by one of Mr.
Green’s personal physicians, Dr. Katsamakis (id. 4 53).

In this regard, Green saw Dr. Katsamakis on July 27, 2001. Dr. Katsamakis signed a
DOT medical certification form stating: (1) that Green was presently under his care for IDC; (2)
that he read and was aware of the Regulatory Criteria for Evaluation of drivers under 49 C.F.R. §
391.41; (3) that Green’s present medical condition may interfere with Green’s ability to drive a
bus safely; and (4) that Green needed further treatment before a DOT medical certificate could be
issued. (/d, 746.) Dr. Katsamakis also conferred with Dr. Barron, who agreed with Dr.
Katsamakis’s assessment that Green’s conditions may interfere with his ability to drive a bus
safely, although the parties disagree over when Drs. Katsamakis and Barron communicated. (/d.
50.) In sum, neither Dr. Katsamakis nor Dr. Barron released Green to retum to work as a bus

driver (id. $51), and they agreed that Green should have been removed from service under the

5 Green contested Def.’s St. | 53. However, Green failed to comply with LR 56.1(6)(3)(A)
in that his response to this paragraph states “Contested,” but fails to make specific references to
the record to support the contention. Accordingly, the facts in Def.’s St. | 53 are deemed
admitted.


o

disabled or that that perception caused the adverse employment action”); Davis v. Tammac
Corp., 127 F. Supp. 2d 625, 631 (M.D. Pa. 2000) (holding that awareness of an employee’s heart
condition is not sufficient to establish that the employee was regarded as disabled).

In this regard, it is worth noting that Plaintiff cites no instance where he even asked any
of the Pace decisionmakers during discovery whether they regarded Green as disabled with
respect to, for example, the proposed major life activity of walking. And such an inference, in
the absence of any evidence, makes no sense in the context of this case. As Green points out, “as
[a] Pace employee, Green had no problems performing his job,” and he never experienced any
problems at work—other than not obtaining his DOT certification. (P1.’s St. | 3.) Two weeks
after being fired by Pace, Green obtained another job where he lifted and mopped and
shampooed, and he was also was able to walk and to run. (ef.’s St. 1] 67-71.) Green is not
able to forestall summary judgment by requesting speculation or conjecture, much less
speculation contrary to the other evidence in the record in the case. See, e.g., Bell v. Duperrault,
367 F.3d 703, 707 (7th Cir. 2004) (“Inferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion.”) (citing McCoy v. Harrison, 341 F.3d
600, 604 (7th Cir. 2003)). At bottom, the record reveals that Pace decisionmakers “did not
regard [Plaintiff] as disabled, only that he was not certifiable under DOT regulations.” Murphy,
527 US. at 520 (internal quotation omitted).

Before concluding this area of analysis, a response is warranted to two additional
arguments that Plaintiff offers. First, Green contends that Pace knew, through Dr. Barron,
Green’s personal physician, that Green’s IDC was an‘“NYHA Class III” condition. (D.E. 58 at

12.) (Dr. Barron in turn testified that at the time Green was an NYHA class III, Green “would

18


A. Green Does Not Contend that He Was Disabled For Purposes Of The ADA And
There Is No Triable Contention That He Was Regarded As Disabled By Pace

Summary judgment in this case is justified for multiple, independent reasons. The first is
that Green does not contend that he actually was disabled within the meaning of the ADA and
there is no triable contention that he was regarded as disabled by relevant Pace decisionmakers.

For Mr. Green’s ADA claim to survive summary judgment, he must produce sufficient
evidence to meet his “threshold burden” of establishing that “he is disabled as that term is
defined in the ADA.” Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 950 (7th Cir. 2000).
Green has indicated that he does not believe that he was disabled at the time he was terminated
(ef.’s St. { 74); rather, in his Opposition to Defendant’s Motion for Summary Judgment, Green
contends that his suit presents a “perceived disability case.” (D.E. $8 at 1, 11.) Green has
therefore framed his ADA claim as a “regarded as disabled” claim, one of the recognized types of
ADA claims, See 42 U.S.C. § 12102(2)(C); Sutton, 527 U.S. at 489.

To fall within § 12102(2)(C), Green must demonstrate that: (1) Pace mistakenly believed
that he had a physical impairment that substantially limits one or more of his major life activities,
or (2) Pace mistakenly believed that an actual, nonlimiting impairment substantially limits one or
more major life activities. See, e.g., Mack v. Great Dane Trailers, 308 F.3d 776, 780 (7th Cir.
2002). Green is apparently attempting to proceed under the second prong, arguing, as discussed
below, that Pace believed that Green’s heart condition limited him in four major life activities,
(D.E. 58 at 12.) The question for the Court, then, “is whether [Pace] perceived [Green's IDC] to
be sufficiently severe to substantially limit a major life activity.” Skorup v. Modern Door Corp.,

153 F.3d 512, 515 (7th Cir. 1998). In this regard, Green must show more than that Pace was


Green did not request any accommodation. Judge St. Eve’s accommodation findings are relevant
because, as explained above, Green now, in an effort to satisfy his burden of demonstrating that
he is a qualified individual under the ADA, argues that he could have performed the essential
functions of his part-time bus-driver job with an accommodation.

Pace responds that such an argument is “a blatant attempt to circumvent Judge St. Eve’s”
order (D.E, 64 at 5), and Pace requests this Court to strike those portions of Green’s summary
judgment filings relating to the alleged failure to accommodate.'* Green, apparently anticipating
such a response, offered a preemptive threefold rebuttal in his brief in opposition, as discussed
below.

First, Green argues that Judge St. Eve simply denied “Plaintiff's Motion to Amend and
did not preclude his pursuit of a ‘failure to accommodate’ as part of his overall ADA claim.”
(D.E. 58 at 19.) This argument is without foundation. Judge St. Eve denied Green’s motion to
amend on futility grounds—in that it could not survive a motion to dismiss—which precludes
Plaintiff from advancing an independent failure to accommodate claim.

Second, Green argues that even if Judge St. Eve did rule that Green cannot pursue a
failure to accommodate claim, “Judge St. Eve was wrong[,] and [Plaintiff] . . . invites the Court
to correct the error.” (/d. at 19-20.) In evaluating Green’s invitation to overturn Judge St. Eve’s
prior order, the Court notes that Plaintiff's request implicates a “variant of the law of the case

doctrine that relates to the re-examination of a prior ruling by a different member of the same

court.” Best v, Shell Oil Co., 107 F.3d 544, 546 (7th Cir. 1997). The Seventh Circuit has

“ Pace’s Reply Memorandum in Support of its Motion for Summary Judgment is cited to
by its docket entry number, D.E. 64.

24


jnute Order Form (06/97)

United States District Court, Northern District of Illinois

6 f Assign Suag ‘li Sitting Judge if Other
eA ie ae Mark Filip te ee Or
|_ Ase NUMBER 02 C 3031 DATE 7119/2004
CASE Arthur L. Green vs. Pace Suburban Bus
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
qd) Oo Filed motion of | use listing in “Motion” box above.}
(Q) Qa Brief in support of motion due
@) ma] Answer brief to motion due. . Reply to answer brief due.
(4) o Ruling/Hearing on set for at
(5) Qa Status hearing[held/continued to) [set for/re-set for} on set for at
(6) o 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) Q {Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
CUFRCP4(m) OlLocal Rule 41.1 COFRCP41(aX1) CI FRCP41(a)(2).
ao {Other docket entry} | ENTER MEMORANDUM OPINION AND ORDER: Defendant Pace
Suburban Bus Motion for Summary Judgment[51-1} is Granted and its Motion to Strike[62-1) is Denied
as Moot.
ay @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
No notices required. Number
purber of notices.
Notices mailed by judge's staff. SUL 12 2004
Notified counsel by telephone. docketed
v | Docketing to mail notices.
| Mail 0.480 form. LUHSO LOMISIC 'S' i
c istrate ji wUdTS
‘opy to judge/magistrate judge.
ne Wd 6~ Ae A002 JUL 1 2, 700
ourtoom
TBK deputy’s Trees
saa Sitti Recived in
central Clerk’s Office mailing depury initials

fae



Supreme Court found that summary judgment was warranted against plaintiff, because the
evidence showed that plaintiff “at most, [was] regarded as unable to perform only a particular
job. This is insufficient, as a matter of law, to prove that [plaintiff] is regarded as substantially
limited in the major life activity of working.” Murphy, 527 U.S. at 525.

Not surprisingly, given the precedent in this area, plaintiffs asserting ADA claims relating
to DOT driving certifications have not fared well in this district court. Thus, Prado v.
Continental Air Transport Co., Inc., 982 F. Supp. 1304, 1307-08 (N.D. Ill. 1997), rejected the
plaintiffs claim that the defendant trucking company violated the ADA by relying on its
physician’s diagnosis that plaintiff did not qualify to drive under DOT certification criteria’
because of the fact that the plaintiff's right leg was atrophied from childhood polio. Prado held
that the company was entitled to rely on the physician’s diagnosis, even if plaintiff believed it
was wrong, under applicable federal regulations, at least until the plaintiff produced a diagnosis
that he was certifiable under the DOT regime. See Prado, 982 F. Supp at 1307. Prado
concluded that because the plaintiff “failed to obtain the required DOT certification, he was
never qualified for the position of driver” and plaintiff could not “claim that he was unlawfully
denied employment for a position which he was never qualified to perform.” Jd. at 1308; accord
Long v. Chicago Transit Auth., 979 F. Supp. 1214 (N.D. Ill. 1997) (dismissing suit of plaintiff

who could not garner DOT certification because of physical disability, and who alleged that he

7 The company adopted the DOT criteria as a matter of company policy pursuant to 42

U.S.C. § 12111(8). See Prado, 982 F. Supp. at 1307. This is certainly permissible. See, e.g.,
Bay, 212 F.3d at 974 (employer was “required to refuse [plaintiffs] request to return to driving a
commercial motor vehicle until he presented the proper certification); Dalton v. Subaru-Isuzu
Auto., Inc., 141 F.3d 667, 678 (7th Cir. 1998) (“Nothing in the ADA requires an employer to
abandon its legitimate, nondiscriminatory company policies defining job qualifications,
prerequisites, and entitlements to intra~company transfers.”).

11



Pace believed that his IDC limited him in the following four major life activities: (1) breathing;
(2) walking; (3) staying awake; and (4) driving. (D.E. 58 at 12.)

Mr. Green faces an uphill battle in this case, as there is a developed body of precedent in
which dismissals of public transportation drivers were upheld against ADA claims in situations
where the driver did not qualify for a DOT medical certification. For example, in Bay v. Cassens
Transport Co., 212 F.3d 969 (7th Cir. 2000), the plaintiff was a longtime truck driver who was
diagnosed with, among other things, near syncope and near fainting. The defendant company
thereafter referred plaintiff to a physician with whom it had an ongoing relationship to perform
DOT physicals, and the physician determined that plaintiff did not qualify under the DOT safety
rules, See Bay, 212 F.3d at 971-972. Eventually, after seeing two other physicians, plaintiff was
able to get DOT clearance, but he sued under the ADA and alleged that the defendant had
violated the statute when it refused to return him to work prior to the eventual DOT certification
clearance. Jd. at 972. The Seventh Circuit held that summary judgment was warranted in favor
of the employer, holding that plaintiff's “failure to obtain DOT certification is fatal to his ADA
claim.” Jd, at 974. The Seventh Circuit recognized that “‘to become a ‘qualified individual’
under the ADA, . . . drivers must be DOT certified or be able to obtain DOT certification’ by
passing ‘the requisite physical examination.’” Jd. at 975 (quoting Prado v. Cont’! Air. Trans.
Co., Inc., 982 F. Supp. 1304, 1307 (N.D. Ill. 1997)). Bay followed in the wake of Murphy v.
United Parcel Service, Inc., 527 U.S. 516 (1999), where the Supreme Court rejected the
plaintiff's claim that the plaintiff's employer’s refusal to employ him as a mechanic—because of
the company’s belief that he could not qualify for DOT certification—meant that the employer

regarded the plaintiff as disabled with respect to the major life activity of “working.” The

10


F.3d at 524, The Seventh Circuit has instructed that-“{nJot working is not a means to perform the
job’s essential functions,” Byrne, 328 F.3d at 381, and the “[iJnability to work for a multi-month
period removes a person from the class protected by the ADA.” /d. An unpaid leave of absence
(for a period of at least six months, given the physician’s determination in this case) for Green
was not required by the ADA. Asa probationary Pace employee, Green also was not entitled to
unpaid leave (D.E. 59, PI.’s Ex. 34 (Fardoux Dep.) at 26), and precedent teaches that “the ADA
does not require creation of extended leave status to accommodate disabled employees.” Pond v.
Michelin N. Am., Inc., 183 F.3d 592, 597 n.5 (7th Cir. 1999) (citing Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173 (6th Cir. 1996)). For all of these reasons, Green’s contention that he was
qualified individual with the accommodation of an unpaid leave of absence is unavailing.

Green also argues that he was qualified individual with the accommodation of being
transferred to a vacant position. A reasonable accommodation under the ADA may include
reassigning an employee to a vacant position where the employee can no longer perform the
essential functions of his or her job. See 42 U.S.C. § 12111(9)(B); Gile, 95 F.3d at 498. The
Seventh Circuit has felt it “prudent to emphasize” that there are meaningful “limitations on an
employer’s potential obligation to reassign a disabled employee. ” Gile, 95 F.3d at 499. In this
regard, the ADA may only require that an employer z assign an employee to a position for which
the employee is otherwise qualified. See id. An employer is not required to change the essential
functions of any vacant positions to accommodate oxi employee. See Ozlowski v. Henderson, 237
F.3d 837, 841 (7th Cir. 2001) (collecting cases). An employer does not have to create any
positions for the employee, and the employer does not have to “bump” its current employees to

create vacant positions. See Hansen, 233 F.3d at 523; Gile, 95 F.3d at 499. Moreover,

31



without having to perform the full range of duties for the job.” Jd. at 486. Here, Plaintiff's
alleged request to remain a driver (of “vans” as opposed to “buses”) was a tequest to be assigned
to a position in which he could not perform the central duty of the job—driving the passenger
vehicle in question. That request does not trigger a duty to accommodate. See Miller, 107 F.3d
at 487 (“She evinced no interest in prison jobs not occupied by correctional officers, jobs the
essential duties of which may be within her ability to perform.”).

Even if the Court is wrong about all of the foregoing—such that Judge St. Eve was in
error or Plaintiff otherwise legitimately triggered accommodation duties—and even if the
Seventh Circuit would not side with the majority of courts holding that there is no a legal duty to
accommodate in an “as regarded” plaintiff, the accommodation issue still would not preclude
summary judgment against Green. This is the case because the record makes clear that the jobs
and steps Green has identified in this litigation as possible alternatives were not available or were
not legally required at the relevant time.

In this regard, Green contends that he should have been given the chance to go on unpaid
leave.'® Green argues (with the benefit of hindsight) that, with sufficient time off, he would have
eventually become DOT certified and resumed his job as a part-time bus driver. (D.E. 58. at 16.)
The ADA, however, generally contemplates accommodations that allow a person to perform the
essential functions of the position, see Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir.
2003), and the determination as to whether the individual is a qualified individual with a

disability must be made as of the time of the adverse employment decision. See, e.g., Weiler,101

6 Green does not discuss whether such unpaid leave would have included benefits such as
health insurance.

30


time for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322; accord, e.g., Richards v. Combined
Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir.1995). In ruling on a summary judgment motion, it is
not a court’s “function to scour the record in search of evidence to defeat . . . summary judgment;
(a court relies] on the nonmoving party to identify with reasonable particularity the evidence
upon which [the nonmoving party] relies.” Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d
560, 562 (7th Cir. 1996); see also, e.g., Richards, 55 F.3d at 251.
Tl. The ADA

Section 12112(a) of the ADA prohibits, among other things, discrimination “against a
qualified individual with a disability because of the disability of such individual in regard to . . .
discharge of employees.” 42 U.S.C. § 12112(a); accord Buie v. Quad/Graphics, Inc., 366 F.3d
496, 502 (7th Cir. 2004). Section 12111(8) defines a “qualified individual with a disability” as
“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); accord Ammons v, Aramark Unif. Servs., Inc., 368 F.3d 809, 818 (7th Cir. 2004).
Section 12102(2) defines a disability, in relevant part, as either “(A) a physical or mental
impairment that substantially limits one or more of the major life activities of such individual; . .
. or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2); accord, e.g.,

Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999).


Circuit instructs that a court should first consider whether the individual “satisfies the
prerequisites for the position, such as possessing the appropriate educational background,
employment experience, skills, licenses, etc.” Bay, 212 at 974 (citing 29 C.F.R. app. §
1630.2(m)). A plaintiff's failure to satisfy step one of the two-part analysis requires a grant of
summary judgment in favor of the defendant. See, e.g., Weiler, 101 F.3d at 524; Prado, 982 F.
Supp. at 1306. If the individual satisfies step one, a court then considers step two, whether the
individual can perform the essential functions of the position with or without reasonable
accommodation. See, e.g., Bay, 212 F.3d at 974 (citing 29 C.F.R. app. § 1630.2(m)). As an
aside, the Court notes that, given the facts of this case, it is unclear whether DOT certification is
properly analyzed under the first or second step of the analysis set forth above. In any event, the
parties are in agreement that DOT certification is an essential function of a Pace bus driver’s job.
(PI.’s St. | 23.) The Court therefore proceeds to the second step, as it is dispositive, although the
Court finds it strained to consider a threshold requirement like DOT certification as a “function”
of ajob. See 29 C.F.R. § 1630.2(n)(1) (defining “essential functions” as “the fundamental job
duties of the employment position”).

The Seventh Circuit and courts within this district have held, in cases involving other
ADA plaintiffs who failed to obtain DOT certification, that an individual is not a qualified
individual under the ADA if he or she cannot obtain DOT certification for a job that requires
such certification. See, e.g., Bay, 212 F.3d at 974-75; Jones, 2003 WL 76868, at *6; Prado, 982
F. Supp. at 1308; Long, 979 F. Supp. at 1217-18. The Court need not decide whether the
reasoning of these cases directly applies to Green’s case, however, because he has effectively

conceded that he could not perform an essential function of his part-time bus driver job (DOT

21



Green also contends that the EEOC actually investigated his failure to accommodate
claim. In support, Green cites an EEOC investigators’s notes. Those notes, however, do not
raise a triable issue that would warrant disturbing Judge St. Eve’s order. The EEOC notes simply
tead that Green “stated that he did not ask for any accommodation other than to be returned to his
position. He also stated that he does not believe that he is qualified for any other position
because all of the positions require driving.” (D.E. 59, Pl.’s Ex. 23 (EEOC notes dated Jan. 29,
2002).) The notes do not indicate that the EEOC believed a failure to accommodate claim
existed or pursued any investigation into such a claim. Judge St. Eve was aware of these notes,
as she, in fact, quoted them in support of her ruling that Mr. Green’s failure to accommodate
claim was beyond the scope of Green’s EEOC charge. Similarly, the fact that Pace’s position
statement that Pace filed with the EEOC discusses in boilerplate fashion whether accommodation
duties exist under, for example, Illinois law, sheds no light on whether the EEOC actually
investigated any purported failure to accommodate claim advanced by Green.

As the final basis for attacking Judge St. Eve’s-order, Green argues that even if Judge St.
Eve’s order correctly precluded the addition of a failure-to-accommodate claim, the
accommodation issue is still material because Green should be permitted to show that he was
qualified to perform the essential functions of his bus driver job “with an accommodation.”

(DE. 58 at 22.) This, Green contends, requires an analysis of whether Pace failed to
accommodate him, notwithstanding that Green failed to raise any failure to accommodate count
in this Court. (/d.) Even if Green is correct on his legal argument that accommodation issues are
still in the case (Pace vigorously disputes this, although it does not cite any precedent addressing

the issue), Green nonetheless cannot prevail on the accommodation front.

27


various other things, “no current clinical diagnosis of . . . cardiovascular disease of a variety
known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure.” (Id. J
16.) All North Shore Pace employees are required to have DOT medical certification to
physically qualify to drive a bus. (fd 76.) The parties agree that a Pace bus driver’s physical
qualification under the DOT regulations, as determined by a physician, is an essential function of
a bus driver’s job. (/d. { 23.) It is also undisputed that Pace has no discretion to allow an
employee who has not received DOT medical certification to drive a bus. (Id. 4 24.)

Green’s personal physicians diagnosed him with IDC after a series of hospital visits in the
spring/summer of 2001. Specifically, on May 31, 2001, Green sought medical care at St. Francis
Hospital in Chicago, where Green was diagnosed with pneumonia. (PI.’s St. ¢4.) On June 4,
2001, Green went to the St. Francis emergency room and was diagnosed with acute pneumonia.
(ia.) Finally, on June 25, 2001, the staff of Rush University Medical Center hospitalized Green,
and Dr. Constantine Katsamakis, an internal medical resident, and Dr. John Barron, the attending
cardiologist, treated Green. (Def.’s St. ] 6.) At the time, Green suffered from, among other
things, lower extremity edema (swelling of the legs), increasing abdominal girth, an enlarged
heart, congestive heart failure, and dyspnea (shortness of breath). (/d. 47.) Drs. Barron and
Katsamakis diagnosed Green with IDC (id. { 8), which is a heart condition that primarily affects
the left ventricle and causes the heart to become weak and pump inefficiently (id 79). The
disease carries with it a material risk of sudden death (id. 12) and/or syncope (sudden passing
out and collapsing) (id. 11). It is unclear from the record whether Green’s pneumonia was
related to the IDC.

On June 30, 2001, Rush University Medical Hospital discharged Green (Def.’s St. § 25),


on an individual’s ability to drive might factor into a ADA disability analysis under all
circumstances. Here, Green does not contend that his inability to drive a bus limited his ability
to care for himself, or seek medical care, or even limited his ability to work—the more natural
argument, but one squarely foreclosed by precedent. See Murphy, 527 U.S. at 523 (“The
inability to perform a single, particular job does not constitute a substantial limitation in the
major life activity of working.’”) (quoting 29 C.F.R. § 1630.2(j)(3)(i)); see also Matthews v.
Commonwealth Edison Co., 128 F.3d 1194, 1195 (7th Cir. 1998) (stating that “[i]f an insulin-
dependent diabetic cannot be depended upon to drive a bus safely, he cannot complain [under the
ADA] about being disqualified from working as a bus driver”). Green does not even contend.
that he was limited in his ability to drive a car under I}inois law. Instead, Green’s argument that
Pace believed that his heart condition disqualified him from being a DOT certified bus driver
(D.E. 58 at 13), is an argument that Pace regarded Green as limited in his ability to work in a
DOT-certified employment position. And that argument—that one’s perceived inability to work
in a particular job, because of inability to obtain DOT certification, is akin to being perceived as
unable to engage in the major life activity of working —is squarely foreclosed by the precedent
cited above.

Similarly, Green cites no legal authority for his contention that “staying awake” is a major
life activity. This contention appears to be related solely to the notion that Mr. Green’s heart
condition could cause syncope (sudden blacking out), and also carried with it the risk of sudden
death. (D.E. 58 at 13; Def.’s St. ¢ 12.) Again, though, in the context of this case, the claim that
“staying awake” is a “major life activity” is (with no disrespect intended) a contrived description,

because “staying awake” as Green frames the argument is merely a proxy for “not suddenly

14



actually qualify as “major life activities” as framed by Green), summary judgment is still
warranted on factual grounds. Simply put, Green identifies no evidence to create a triable issue
as to whether Pace (though its decisionmaker) actually regarded him as disabled conceming his
identified life activties of walking, breathing, etc,

In fact, despite the best efforts of Plaintiff's pro bono counsel, it is not even clear whether
the relevant Pace decisionmaker(s)'' had any meaningful knowledge even that Plaintiff had any
specific medical condition or symptoms—i.e., “syncope,” “dyspnea,” or “idiopathic dilated
cardiomyopathy.” As one would naturally expect, what the evidence (including, in particular, the
evidence offered by Plaintiff) reflects is that the decisionmakers (who are not medical
professionals, but rather are busy laypeople who are responsible for overseeing a public
transportation operation) knew that Green had to “see his cardiologist to clear him for work
based on DOT regulation.” (D.E. 59, Pl.’s Ex. 12 at 2 (cited by Plaintiff, D.E. 58 at 7)).
Likewise, Cutler (the proposed conduit of information to the decisionmakers), testified that he
did not discuss Green’s specific medical condition with anyone. (/d., Pl.’s Ex. 36 at 109 (cited
by Plaintiff, D.E. 58 at 12); see also id., Pl.’s Ex, 32 at 15 (cited by Plaintiff, D.E. 58 at 8)
(Heelan testifying that Cutler told him that “Dr. Estrella, had reviewed documentation from
Arthur’s [Green’s] doctor and that he was medically unqualified”); id, Pl.’s Ex. 34 at 6 (Fardoux
testifying that Cutler told him that Green was “medically disqualified . . . from work” based on

the assessments of Green’s own doctor and Dr. Estrella).) There is no indication at all—again,

u Although Plaintiff has indicated that he believes Heelan was the relevant decisionmaker
(DE. 58 at 12, 14), at least some other snippets of the record suggest that Fardoux also may have
been a decisionmaker. The Court has analyzed whether there is a triable issue regarding whether
either Heelan or Fardoux regarded Plaintiff as disabled with respect to any of the proffered major
life activities, and there is no such triable issue.

16


six months (id, § 63-64; D.E. 58 at 3).? As part of the hiring process, Green took (and passed) a
pre-employment physical that is based on criteria established by the United States Department of
Transportation (“DOT”)? (Pl.’s St. 1.)

Pace terminated Green before the expiration of the probationary period (Def.’s St. 1 66),
after subsequent medical examinations by Green’s personal physicians, prompted by Green
having sought emergency medical attention (id. § 6), resulted in Green being diagnosed with
health issues that physically disqualified him from driving a bus under DOT regulations and Pace
policy (id. §{ 13-18, 51-53), The health issues diagnosed by Green’s doctors included congestive
heart failure and something called idiopathic dilated cardiomyopathy or “IDC.” (fd. 4¥ 6,8.)
Green thereafter filed a pro se lawsuit, and he has been ably represented thereafter by his court
appointed counsel, who appear pro bono. :

As explained, Pace follows the DOT certification regulations as a matter of corporate
policy. (/d. 4 13.) The DOT has established medical standards to determine whether a person is
physically qualified to drive a commercial motor vehicle. (Id. § 14.) Specifically, the DOT
regulations state that a person shall not drive a commercial motor vehicle unless he or she is
physically qualified to do so and has a medical examiner’s approval evidencing that qualification.

(Ud. 4.15.) The DOT regulations define a physically qualified driver as a person who has, among

2 Green’s Brief in Opposition to Summary Judgment is cited to by its docket entry number,
DE. 58. :

3 The following facts are taken from the parties’ Local Rule (hereinafter “LR”) 56.1
Statements and Responses, as well as other admissible evidence in the record. Where facts are in
dispute, the Court describes the version of the facts most favorable to Green. This opinion cites
to Pace’s LR 56.1(a)(3) statement as “Def.’s St. __” and to Green’s LR 56.1(b)(3)(B) statement
as “Pi.’s St.§__.”


instructed that “the presumption [in such cases] is that earlier rulings will stand” and that prior
Tulings should be disturbed only “for compelling reasons (such as new controlling law or clear
error).” Jd. The “doctrine in these circumstances reflects the rightful expectation of litigants that
a change of judges mid-way through a case will not mean going back to square one.” Id With
the Seventh Circuit’s teaching in mind, the Court turns to Plaintiff's request to reverse.

The Court is not persuaded that Judge St. Eve’s order was erroneous, much less clearly
so. Judge St. Eve based her holding on the Seventh Circuit’s decision in Green v. National Steel
Corp., Midwest Division, 197 F.3d 894 (7th Cir. 1999).'> National Steel noted that the Seventh
Circuit “has held that a plaintiff is barred from raising a claim in the district court that had not
been raised in his or her EEOC charge unless the claim is reasonably related to one of the EEOC
charges and can be expected to develop from an investigation into the charges actually raised.”
Nat'l Steel, 197 F.3d at 898 (citing Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
1994)). National Steel stated that “a failure to accommodate claim is separate and distinct from a
claim of discriminatory treatment under the ADA,” id., and further stated that a failure to
accommodate claim and a discriminatory treatment claim under the ADA “are not like or
reasonably related to one another, and one cannot expect a failure to accommodate claim to
develop from an investigation into a claim that an employee was terminated because of a
disability.” Id.

Mr. Green contends that a failure to accommodate claim is within the scope of his EEOC

charge. (D.E. 58 at 20.) In Mr. Green’s EEOC charge, he stated:

s Green v. National Steel is referred to as National Steel throughout this opinion, to avoid
any confusion with the Plaintiff, Mr. Green.

25


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

EASTERN DIVISION
ARTHUR L. GREEN, )
[proctte
Plaintiff, ) \
» Pare
v. ) Case No. 02 C 3031 Deo TES
) JUL 1 9 2004
PACE SUBURBAN BUS, ) Hon. Mark Filip
)
Defendant. )

fpr, a
' Posen sane ntconeare na

MEMORANDUM OPINION AND ORDER

Plaintiff Arthur L. Green (“‘Plaintiff” or “Green”) is suing his former employer,
Defendant Pace Suburban Bus Service (“Defendant” or “Pace”), alleging Pace discriminated
against him because of a disability in violation of the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seg. This case is before the Court on Defendant’s Motion for Summary
Judgment (D.E. 51) and Motion to Strike Portions of Plaintiff’s Local Rule 56.1(b) Summary
Judgment Response Memorandum and Statement of Additional Facts (D.E. 62).' Defendant’s
Motion for Summary Judgment is granted and Defendant’s Motion to Strike is denied as moot.

BACKGROUND

Defendant Pace is Green’s former employer, providing, among other things,
transportation services to the public in suburban Chicago. Pace has multiple operating divisions
(Def.’s St. 2), one of which is the North Shore Division, located in Evanston, Illinois (id. 4 3).
On February 26, 2001, Pace’s North Shore Division hired Green (id. { 5) on a probationary basis

as a part-time bus operator to drive a bus and shuttle bus, with the probationary period to last for

' The various docket entries in this case are cited as“D.E.__.” ( 4



division, Pace had no policy which granted an existing employee any preference in applying to
another division, and it was Pace’s policy to give the most qualified applicant preference for a
vacancy, regardless of whether the person worked somewhere for Pace or not.'* (/d.) Any
applicant would need to take the requisite medical examinations, meet other qualifications for the
job, and if an existing Pace employee were hired by another division, that employee would
effectively need to terminate his employment with the old division and be hired by the new
division. (Jd. at 35-36.) The non-preference for Pace employees concerning intra-corporate
moves weighs heavily against any successful accommodation claim, because precedent teaches
that “[nJothing in the ADA requires an employer to abandon its legitimate, nondiscriminatory
company policies defining job qualifications . . . and intra-company transfers.” Dalton,141 F.3d
at 678. Plaintiff has not shown that he is entitled to an intra-corporate transfer as an ordinary
employee of the North Shore Division, and Dalton teaches that Plaintiff's status as an (assumed)
“as regarded” ADA plaintiff cannot create a duty on Pace to change its rules just for him. See
also E.E.O.C. v. Humiston-Keeling, Inc., 54 F. Supp: 2d 798, 817 (N.D. Ill. 1999) (“[T]he ADA.
does not mandate preferential treatment when reassigning an employee who can no longer
perform her position.”), aff'd, 227 F.3d 1024 (7th Cir. 2000).

Finally, even if Pace were required to give Green a preferential look for an intra-corporate

8 Plaintiff proposes that “internal” job candidates were given preference over “external”
candidates (D.E. 58 at 10); however, the record material Plaintiff offers in support of this
contention (namely, deposition testimony of William Heelan) does not create a disputed material
fact on this issue. In his deposition, Heelan twice stated that questions concerning transfers are
questions for Pace’s Human Resource Department. (D.E. 59, Pl.’s Ex. 32 (Heelan Dep.) at 11.)
The testimony of Pace’s Human Resource Manager, Marion Roglich, establishes in clear terms
that there was no preference at Pace for applicants seeking a job in another division. (Id. Pl.’s
Ex. 31 (Roglich Dep.) at 36-37.)

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First, in reviewing the evidence in this case, it appears that Green never made even the

most minimal request for accommodation so as to trigger Pace’s responsibility to engage in a
dialogue and interactive process to see if accommodation can be achieved. See, e.g., Hansen v.
Henderson, 233 F.3d 521, 523 (7th Cir. 2000) (collecting cases and stating “[w]hen . . . the
disabled worker has . . . asked for an accommodation so that he can continue working, the
employer has the burden of exploring with the worker the possibility of a reasonable
accommodation”). Understandably, precedent teaches that the employee’s request can be
informal. See Miller v. Ill. Dep’t of Corr., 107 F.3d 483, 487 (7th Cir. 1997) (“Even if an
employee . . . just says to the employer, ‘I want to keep working for you-do you have any
suggestions?’ the employer has a duty under the Act to ascertain whether he has some job that
the employee might be able to fill”). Precedent also teaches, however, that where the employee
simply demands to be kept in a position for which he is not qualified, or requests the functional
equivalent of retention in a position for which the employee is not qualified, that does not suffice
to trigger the employer’s responsibility regarding accommodation. As Miller, a case involving a
correctional officer who regrettably was afflicted with a serious vision impairment, stated:

[Plaintiff] wanted to remain at [the prison] on her own terms, and those

terms involved her remaining, with or without the uniform, in the same job

status that she had occupied before she became disabled. That is the job

status that she is not qualified for under the disability law because she

cannot perform its essential duties. She evinced no interest in prison jobs

not occupied by correctional officers, jobs the essential duties of which

may be within her ability to perform. She thus did not put the prison on

notice to search out such jobs in order to determine whether there was one

she might fill.
Jd. at 487 (emphasis in original).

Green cites to a portion of Judge St. Eve’s prior order in which she stated that “Plaintiff

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was unlawfully denied consideration for position as a bus driver, on the ground that the plaintiff
was not a “qualified individual” within the meaning of the ADA); Jones v. Roadway Express,
Inc., No. 01-6213, 2003 WL 76868, at *6 (N.D. Ill. Jan. 8, 2003) (dismissing ADA suit of driver
who could not obtain DOT medical certification, and finding failure-to-accommodate allegation
baseless, where plaintiff “never made a good faith request for a reasonable accommodation” but
instead wanted the company, which had no other objection to plaintiff, to pressure physician to
authorize the DOT clearance).

Not all of this precedent is directly applicable (although some certainly is), given the way
that Green has framed his arguments. However, it is important, at a minimum, because it helps
to explain why Green engages in some tortured arguments in an effort to wend through the
extensive body of caselaw that has rejected similar claims.*

As stated, Green attempts to establish that there are triable questions concerning whether
Pace through its decisionmaker believed that Green’s IDC limited him in the four proposed
major life activities of driving, staying awake, walking, and breathing. (D.E. 58 at 12.) The
Court will address these in turn.

First, at least as the arguments are framed in the context of this case, there are legal

deficiencies with the proposed “major life activities” of driving and staying awake. With respect

5 This comment is not intended as a criticism of Green or his counsel. To the contrary:
Green’s lead counsel, James T. Derico, Jr., appeared pro bono pursuant to a court appointment
and carried out his assignment consistent with the finest traditions of the bar. To faithfully
discharge his assignment, it appears that Mr. Derico went so far as to enlist the assistance of
Foster Marshall, Jr., who did not appear in court but appears “of counsel” on the summary
judgment papers. Mr. Marshall doubtless made valuable contributions to the exemplary pro
bono effort. Despite the fine efforts of Mr. Derico and Mr. Marshall, however, the record in this
case and applicable precedent warrant summary judgment against Mr. Green.

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passing out or dying.” One would not normally think of “not experiencing sudden death” or “not
experiencing sudden collapse” as a “major life activity” in any usual sense of the term.

Green has offered no authority in support of his “staying awake” formulation. The
Court’s research uncovered only one case, an unpublished Third Circuit opinion, Katekovich v.
Team Rent A Car of Pitisburgh, 36 Fed. Appx. 688 (3d Cir. 2002) (unpublished opinion), that
addresses a plaintiff's contention that staying awake is a major life activity under the ADA.” The
Third Circuit held that staying awake cannot, by itself, “be considered a major life activity.
Rather, the difficulty or inability to stay awake during the day can only amount to a disability if it
causes an impairment of some other life activity ....” Katekovich, 36 Fed. Appx. at 690.
Although Katekovich is not precedential per se, the Court finds its approach to be a sensible
one—at least in the context of the argument as framed -by Green. Green does not contend that his
risk of passing out and suddenly dying impaired any actual aspect of his life other than its
negative impact concerning DOT certification. Precedent does not recognize that claim."

Green further contends that Pace regarded his IDC as limiting his major life activities of
breathing and walking. These are recognized major life activities. However, as to these major

life activities (and as to “driving” and “staying awake” too, if one assumes arguendo that they

° Even within the Third Circuit, unpublished opinions of that Court of Appeals are not
binding. See Third Circuit Internal Operation Procedures Ch. 5.7. Although not binding, the
Third Circuit does permit citation of its unpublished opinions for the persuasiveness of their
reasoning. See Aetna Life & Cas. Corp. v. Maravich, 824 F.2d 266, 269 (3d Cir. 1987).

"0 One can readily posit situations where the “staying awake” contention might be framed
differently, and a different determination concerning “major life activity” status might obtain.
For example, if someone suffered from narcolepsy to such an extent that they could not work at
all, their arguments concerning “major life activity” might obtain a different result. The Court
need not speculate, however, as Green’s argument is framed differently.

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