1 

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LIONEL KELLEY,

Plaintiff,

v.

CHICAGO TRANSIT AUTHORITY, 

Defendant. 

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Case No. 20-cv-2881

Judge Mary M. Rowland

Magistrate Judge Sunil R. Harjani 

Plaintiff’s Response to Defendant Chicago Transit Authority’s 

Memorandum in Support of Its Motion for Summary Judgment

NOW COMES Plaintiff, LIONEL KELLEY, through his attorneys, and requests that this 

Court DENY Defendant Chicago Transit Authority’s Motion for Summary Judgment. In support 

thereof, he states as follows:

Introduction 

In brazen disregard of FRCP 56, N.D.IL’s Local Rule 56.1, and this Court’s standing order 

on Summary Judgment, the CTA submits to this Court its own, disputed, version of events—at 

times not even supported by any evidence at all. The facts are disputed; the CTA is wrong on the 

law; and the CTA is not entitled to summary judgment. Plaintiff requests that this Court DENY the 

motion. The trial of this cause is already set for February 20, 2024. It is time to proceed to trial.

Facts

Lionel Kelley lives with Type 1 diabetes, a condition he was diagnosed with in 1985. (Lionel 

Kelley’s Statement of Additional Facts that Require the Denial of Summary Judgment, hereinafter 

referred to “SOF,” ¶ 1). Kelley’s pancreas does not produce insulin; so he must inject it, in 

conjunction with monitoring his food and activity. (Id.) Kelley became a “journeyman” electrician in 

1994. (Id.) Kelley applied to the CTA to be an electrician on February 16, 2015. (Id. at ¶ 2). On 

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March 29, 2015, Kelley went to a pre-employment physical at Concentra on 1030 W. Chicago Ave., 

where he informed the doctor that he had diabetes and took insulin; and he was cleared to perform 

the electrician job at the CTA. (Id.) On April 6, 2015, the CTA hired him. (Id. at ¶ 3). Kelley worked 

in the CTA’s “substations” maintaining rail equipment that supply electricity to the train tracks. (Id.) 

Kelley worked without incident for more than 3 years for the CTA. (Id. at ¶ 3-4). 

On June 28, 2018, Kelley had finished his day’s work and was recording what he had done in 

a logbook at a desk when he suffered the side effects of low blood sugar. (Id. at ¶ 4) He was found 

by a co-worker “conscious but dazed.” (Id. at ¶ 4). An ambulance was called, and the crew gave him 

intravenous dextrose, and he ate some food. (Id.) Afterward, he drove himself home. (Id.) The next 

day, he worked his regular shift as usual. (Id.) 

On July 2, 2018, Kelley was called into a meeting with his supervisor, Jeannine Messina. (Id. 

at ¶ 5). In this meeting, Messina learned that Kelley had diabetes for the first time; she did not know 

it before. (Id.) Messina removed him from service (i.e., stopped letting him report to work) “for 

being a Type 1 diabetic” and “being found unresponsive.” (Id. at ¶ 35). She told him that “Leave 

Management” would contact him. (Id. at ¶ 7). The next day, Deshone Maddox (Coordinator of 

Leave Management) emailed various personnel at Concentra an “authorization for testing form” for 

Kelley. (Id.) She informed them he needed a fitness for duty exam because he had been found 

unresponsive. (Id.) She informed them he had diabetes; and sent them his job description. (Id.) 

Maddox scheduled Kelley for his Concentra appointment on July 5, 2018. (Id. at ¶ 8). 

On July 5, 2018, Kelley saw a Dr. Kang at Concentra. (Id.) Dr. Kang told Kelley to get a 

note from his PCP “stating that you’re in good condition to go back to work.” (Id.) So Kelley called 

his doctor, Dr. Venetos. (Id.) He told Dr. Venetos what had happened and told him he needed a 

note to return to work. (Id.) Dr. Venetos faxed in a form on July 6, 2018 to Concentra that said 

Kelley was clear to return. (Id.) On July 9, 2018, Kelley called Messina (his supervisor) but she 

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emailed Maddox (“leave management”) saying she thought he needed to return to Concentra first. 

(Id. at ¶ 9). So Maddox asked Concentra to instruct Kelley to report back to Concentra and she 

herself instructed Kelley to “report back to Concentra.” (Id.) Concentra contacted Kelley to come 

back on July 13, 2018. (Id. at ¶ 10). So he did. (Id.)

On July 13, 2018, a Friday, Kelley went to Concentra and saw a Dr. Patino. (Id.) She “took 

his sugar” and gave him a physical. (Id.) After his appointment, at 9:11 a.m., he was given a note that 

said “result status: no medical restrictions” and “may RTW without restrictions as of 7/13/18.” (Id.) 

She had a copy of his job description. (Id.) After this visit, Kelley gave the note to his foreman and 

also called Messina (his administrative supervisor). (Id.) Messina knew he had been cleared by 

Concentra. (Id.) 

However, the foreman told Kelley that Messina was “not recognizing” the release. (Id. at ¶ 

13) At 2:28pm that day, an employee in leave management1 emailed Georgette Hampton (head of 

leave management) and Messina (Kelley’s supervisor) in response to emails from them that “I spoke 

to Mr. Kelley and he was advised not to report to work...” (Id.) She also told him to “expect a 

follow up call from Leave Management on Monday.” (Id.) 

Monday, July 16, 2018, at 10:15 a.m., Maddox emailed Carla Lowe at Concentra. (Id. at ¶ 14). 

She wrote “Mr. Kelly (sic) works in a safety sensitive position and is insulin dependent. Can you call 

me about this case?” (Id.) Ms. Lowe is not a doctor and has no medical background; she was the 

office manager. (Id.)

On July 16, 2018 at 11:09 a.m., Messina (Kelley’s supervisor) wrote an email to her boss, 

William Mooney and five other people: “All, please be advised Mr. Kelley has been found unfit to 

return to work and should be carried as sick on the time sheets. If you should have any questions, 

please let me know.” (Id. at ¶ 15). (Id.) Messina did not say that his status was “pending further 

1 Maddox was on vacation. (SOF at ¶ 13)

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medical review,” or that further investigation was required, or that anything remained in limbo. (Id.) 

At this point, no doctor had found Kelley unfit to work. (Id.) The only inference that makes sense is 

that Messina was using the passive voice about a decision she had made. Messina’s statement that Kelley 

“should be carried as sick on the time sheets” shows that she had the power to control whether 

Kelley returned to work or not. (Id.)

At 11:34 a.m. (on July 16, 2018), Carla Lowe wrote in an email to Dr. Patino: “Can you 

please update [Kelley’s] physical to reflect he is not qualified to RTW?” (Id. at ¶ 16). She also wrote 

“I have already reached out to the patient to inform him of the updated status.” (Id.) No medical 

professional had said Kelley was “not qualified to [return to work].” (Id. at ¶ 15). Nonetheless, Lowe 

had already told Kelley of the “updated status.” (Id. at ¶ 16). Lowe did not ask Patino to see him 

again. She did not ask a different doctor to see him. She did not mention anything that Kelley could 

or should do. No, she wrote that it was already determined that Kelley was “not qualified to RTW” 

and she had already told him. (Id. at ¶ 16). 

Messina confirmed that she kept Kelley off work after Concentra released him (on July 13, 

2018). (Id. at ¶ 20). She did so, she said, because he was a Type 1 diabetic who worked in a “safety 

sensitive position.” (Id.) Messina held the belief that “a Type 1 diabetic” could not hold a “safety 

sensitive” position at the CTA. (Id.) Hampton also believed this. (Id.) 

Kelley subsequently left several messages for Maddox (leave management). (Id. at ¶ 19). 

Hearing nothing back, Kelley contacted his union. (Id. at ¶ 21). He did this because he had to go 

through his union rep. (Id.) His union filed a grievance July 23, 2018. (Id.) The grievance alleged that 

the CTA had constructively disciplined or suspended Kelley “indefinitely, without the ability to 

return to work.” (Id.) It noted that Kelley had “several medical releases/reports verifying that he is 

medically clear to return to work full duty.” (Id.) It even attached those releases. (Id.) It even said 

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what the CTA was doing was a violation of the Americans with Disabilities Act. (Id.) It demanded 

that Kelley be immediately reinstated. (Id.)

The CTA did not respond to this grievance by telling Kelley or his union that there was 

something he could do to return to work, such as see a medical specialist (as they now falsely claim 

in their summary judgment submissions)—whatever they would have asked Kelley to do, he would 

have done. (Id. at ¶ 39). Instead, in response to getting this grievance, Maddox asked Carla Lowe to 

send her a new form which her assistant did on July 27, 2018 which now said, “not cleared to RTW 

7.16.18 CL.” (Id. at ¶ 22). No one gave this to Kelley. Perhaps more importantly, this document did 

not indicate that there was something Kelley needed to do (or could do) to get “cleared.” It simply 

said “not cleared to RTW.” (Id.) On July 30, 2018, Maddox drafted a letter that said “Mr. Kelley is 

not medically fit to RTW.” (Id. at ¶ 23). This letter was not sent to anyone, it seems, but, again, it did 

not say Kelley needed further medical review, or that the CTA was waiting on him to do something. 

It said “not medically fit to RTW.” (Id. at ¶ 23). This is, of course, despite the fact that no medical 

provider had found that he was “not medically fit.” (Id. at ¶ 26).

On August 8, 2018, the union requested a “sit down meeting” with CTA attorneys Katharine 

Lunde and Brad Jansen, deputy chief of the labor division of the law department. (Id. at ¶ 24). They 

did not respond. (Id.) On August 15, 2018, Kelley reached out to the EEOC. (Id. at ¶ 25). In his 

communication, he wrote that the CTA’s reason for keeping him off work was “that I have diabetes 

& this disability is not allowed in a safety sensitive position.” (Id.) 

On August 16, 2018, the CTA’s labor representative made clear: “Mr. Kelley is still off work 

because he does not meet the requirements of his safety-sensitive position (because of his diabetes.” 

(Id. at ¶ 26). She did not write “Kelley is still off work because he needs to go see a specialist to get 

further clearance and we told him that” (the concocted story the CTA now submits to this Court). 

(Id.) On August 22, 2018, Hampton reiterated the CTA’s view: “Lionel Kelley was found unfit by 

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Concentra due the nature of his condition in a safety sensitive position.” (Id.) Again, she reiterated 

the falsehood that Concentra had found Kelley unfit. (Id.). Messina, for her part, made the CTA’s 

position clear, on August 22, 2018 when trying to deny Kelley unemployment benefits, writing that 

Kelley “was found unfit for his job duties.” (Id.) Again, a falsehood. (Id.) Again, the passive voice 

about a decision she had made. (Id.)

There can be no denying that everyone involved knew Kelley wanted to return to work. (Id. 

at ¶ 27). However, no one, not one person ever, told Kelley there was anything he needed to do (or 

could do) to return to work. (Id. at ¶ 28). His supervisor, Messina, never did. (Id.) Leave 

management, Maddox, never did. (Id.) If either of them wanted Kelley to return to work, they would 

have, presumably, followed CTA policy, which said that an employee who is “found unfit” will be 

provided a form stating that (they have been found unfit), will be instructed to report to his medical 

provider to address the reason for the unfit status, and will be scheduled for a follow up 

appointment with Concentra. (Id. at ¶ 29). This policy was not followed. (Id. at ¶ 28). The logical 

inference is that the CTA did not want him to return. 

Kelley was off work, unpaid, for over a year. (Id. at ¶ 31). On August 14, 2019, a labor 

arbitrator, after two hearing, issued a written opinion that ordered the CTA to give Kelley “a full and 

fair opportunity to medically qualify to return to his position as a substation B maintenance 

electrician... The CTA must provide the Grievant with complete information about how he can 

medically qualify to return to his safety-sensitive situation.” (Id.) The CTA did not react to this order 

with any statements of outrage, such as, “we already did that!” Of course not, because they never 

had. And the arbitrator’s order would not have made any sense if they had. 

Still, the battle raged on. On August 19, August 30, and September 11, 2019, the union 

reached out in writing to the CTA to ask for instructions on how Kelley could “medically qualify” 

and return to work. (Id. at ¶ 33). Clearly, no instructions had ever been given. 

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Finally, on September 13, 2019, Maddox made Kelley an appointment at Concentra. (Id. at ¶ 

34). That day, Kelley reported as instructed and saw a Dr. Kang. (Id.) Dr. Kang found him fit to 

return. (Id.) The CTA was surprised and unhappy; Maddox wrote to several people, “Ms. Carla 

Lowe at Concentra is taking a closer look into how he was found fit.” (Id.) But the CTA could not 

(or chose not to) repeat what they had done in July 2018. Kelley reported back to work October 3, 

2019. 

Kelley has worked for the CTA for nearly four years since returning without having another 

low blood sugar episode. (Id. at ¶ 36). Kelley has never called off work due to symptoms from 

diabetes. (Id.) He has never hurt himself at work; and he has never hurt anyone else. (Id.) Kelley has 

always worked with a partner. (Id.) 

Summary Judgment Standard 

Summary judgment is appropriate only where the evidence shows “that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of 

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then 

“come forward with specific facts showing that there is a genuine issue for trial.” LaRiviere v. Bd. of 

Trs. of S. Ill. Univ., 926 F.3d 356, 359 (7th Cir. 2019). The nonmoving party must establish “that a 

reasonable jury could return a verdict in [his] favor.” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–

73 (7th Cir. 2012); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“[S]ummary 

judgment will not lie... if the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.”). In deciding a motion for summary judgment, a “court ...must view all the 

evidence in the record in the light most favorable to the non-moving party and resolve all factual 

disputes in favor of the non-moving party.” McCottrell v. White, 933 F.3d 651, 657–58 (7th Cir. 2019); 

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see also Anderson, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all 

justifiable inferences are to be drawn in his favor.”). 

Argument 

In a disability discrimination case, the sole question that matters is whether a reasonable 

juror could conclude that the plaintiff would have kept his job if he were not disabled. Ortiz v. Werner 

Enterprises, Inc., 834 F.3d 760, 764 (7th Cir. 2016). Aberman v. Bd. of Educ. of City of Chicago, 242 F. 

Supp. 3d 672, 686–87 (N.D. Ill. 2017) (applying Ortiz to ADA claims). Put another way, a plaintiff is 

entitled to a jury trial if the evidence would permit a reasonable factfinder to conclude that the 

plaintiff’s disability caused his employer to take the adverse employment action they did. Ortiz v. 

Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). 

In the instant case, a reasonable jury could find that Kelley’s condition of having Type 1 

diabetes caused the CTA to keep him off work for 15 months. Indeed, the CTA admits as much. 

Really, the thrust of the CTA’s arguments are that Kelley was a “direct threat,” which is an 

affirmative defense that CTA did not even plead in its Answer (CM/ECF Doc. 25) and for which it 

lacks any evidentiary support. 

I. The CTA refused to let Kelley work for 15 months because he has Type 1 diabetes. 

As detailed in Plaintiff’s Rule 56.1 statement and supra, Messina kept Kelley from working 

for 15 months2

 because, in her view, he could not work for the CTA in a “safety sensitive job” as a 

“Type 1 diabetic.” On this point, the CTA admits to disputes among its own witnesses: “While there is 

testimony from just two CTA employees that CTA’s policy was that insulin-dependent diabetics 

could not work in a safety-sensitive position, this was not the case and the overwhelming evidence, 

2 Plaintiff does not sue for being off work July 2-13, 2018, but for being off work July 13, 2018-October 3, 

2019. As he testified, the CTA discriminated against him when he was “not reinstated by the CTA after 

passing the medical. And not given the reasonable information to retain employment or get my employment

reinstated.” (SOF at ¶ 38).

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including that Plaintiff was hired while taking insulin, shows this.” (Def. Memo at p. 14) What 

overwhelming evidence is the CTA referring to here? None has been cited. That Kelley “was hired 

while taking insulin” is of no import. What matters is what Messina knew at the time she rejected 

Kelley’s return-to-work clearance from Concentra and instructed that he be “carried as sick on the 

timesheets.” (SOF at ¶ 15). She testified she did not know Kelley had diabetes until her meeting with 

him on July 2, 2018. (SOF at ¶ 5). She has made very clear that she believed Kelley could not work 

at the CTA due to his Type 1 diabetes. (SOF ¶ 20). This statement was made by her over and over 

again. (SOF ¶ 6, 20, 26, 35). And when she discovered that he had diabetes, she prevented him from 

working. 

Every case cited by the CTA in support of the idea that Kelley was kept off work because of 

his own “failure to control his illness” involved an employee who was terminated for committing a 

dangerous (or otherwise “bad” act) who tried to use their disability as an excuse for the behavior. 

Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1310 (10th Cir. 2017) (employer “honestly believed that 

[customer service rep] dropped the customer calls intentionally.”); Siefken v. Vill. of Arlington Heights, 

65 F.3d 664, 665 (7th Cir. 1995) (police officer “erratically drove his squad car at high speed through 

residential areas some forty miles outside his jurisdiction. He stopped only when pulled over by 

police officers from St. Charles and Batavia.”); Johnson v. Am. Signature, Inc., 31 F. Supp. 3d 980, 981 

(N.D. Ill. 2014) (employee was terminated for urinating into a cup in front of a co-worker); and 

Wenrich v. Empowered Mgmt. Sols. LLC, No. 17-CV-00639-MSK-KMT, 2019 WL 3550835, at *1 (D. 

Colo. Aug. 3, 2019) (doctor did not respond when paged to a patient; and a month later was unable 

to perform an emergency c-section). 

 Here, Kelley was accused of no misconduct or dangerous behavior whatsoever. He was 

simply found “dazed” and “alert but disoriented” at work, while working at a desk. The CTA seems 

to be arguing that Kelley having diabetes was (as a general matter) dangerous, in a “safety sensitive” 

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environment—although Kelley currently works for them and has (since coming back in October 

2019) for almost 4 years.

3

 Plaintiff turns to these issues of “safety” and “threat” now.

II. The CTA cannot prove that Kelley was a “direct threat.” 

To escape liability for taking action against a disabled employee because of his disability, it is 

the employer who bears the burden of proving that it took the action because the employee was a 

“direct threat” to workplace safety. Pontinen v. United States Steel Corp., 26 F.4th 401, 406 (7th Cir. 

2022); Branham v. Snow, 392 F.3d 896, 906 (7th Cir. 2004) (“it is the employer’s burden to show that 

an employee posed a direct threat to workplace safety that could not be eliminated by a reasonable 

accommodation.”). The determination that an employee poses a direct threat to his own health and 

safety or that of others must be premised upon “a reasonable medical judgment that relies on the 

most current medical knowledge and/or the best available objective evidence, and upon an expressly 

individualized assessment of the individual’s present ability to safely perform the essential functions 

of the job.” Darnell v. Thermafiber, Inc., 417 F.3d 657, 660 (7th Cir. 2005) (employer told employee it 

was rescinding his offer because he had not passed the physical performed by a doctor). 

What such evidence has the CTA submitted? None. The CTA failed to even disclose an 

expert to rebut Plaintiff’s expert, Dr. David Fletcher (who will testify that Kelley’s diabetes was well

controlled and that he was safe to work). Perhaps this is why they have moved to bar him. 

(CM/ECF Doc. 59).

Here, the CTA relied on no “reasonable medical judgment” in keeping Kelley off work for 

15 months. The people that caused it (Jeannine Messina, Georgette Hampton, and Deshone 

Maddox, with the help of Carla Lowe,) have no medical degrees, background, or training. The CTA 

has cited to no “objective evidence,” let alone the “best available” objective evidence. In the 3 

individualized assessments done (Dr. Kang on July 5, 2018; Dr. Venetos on July 6, 2018 and after; 

3 Surely this is not actually the CTA’s position?

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and Dr. Patino on July 13, 2018), not one of them determined that Kelley could not safely perform 

his job. Kang posed the question to Kelley’s PCP, who answered that he could do the job; and 

Patino released Kelley. Concentra cleared him. Thereafter, neither Concentra nor the CTA informed 

Kelley of anything. They certainly did not inform him that he “had not passed a physical.” Simply 

put, no physician has ever found Kelley unfit to perform his duties. 

Despite the clearances from Dr. Venetos and Dr. Patino, Messina determined on her own that 

she was not recognizing the RTW note, because those with Type 1 diabetes are to be excluded from 

entire classes of jobs at the CTA. She admitted that this was based on general knowledge from a 

prior position and nothing else (and certainly not on medical advice). (SOF ¶ 20, 35).

The CTA focuses on the actual day where he experienced a blood sugar issue. Plaintiff 

makes no argument that he was discriminated against on this day. He does not argue that he was 

discriminated against when Messina sent him for a fitness-for-duty evaluation. Rather, he argues that 

he was discriminated against when he was kept off work for 15 months after Messina discovered that he 

had diabetes and after three medical providers subsequently cleared him to return to work. (SOF ¶ 

38).

Kelley worked for the CTA for over 3 years before his hypoglycemic (low blood sugar) 

diabetic incident on June 28, 2018. He has now safely worked for the CTA, since being reinstated, 

for almost 4 years. CTA simply cannot prove that he was a “direct threat.” They certainly are not 

entitled to summary judgment on this affirmative defense. 

III.A “safety sensitive” work environment is a red herring. 

The CTA uses this phrase twenty-five (25) times in its Statement of Facts and fourteen (14) 

times in its memorandum of law. The CTA has always used the phrase as justification for their 

actions (See SOF at 5, 14, 20, 25, 26, 33, and 35), but what does it mean? The CTA’s Vice President 

of Human Resources testified an employee who is designated “safety sensitive” is one who is eligible 

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for random drug and alcohol testing. (Moreno Dep. 6:18; 16:9-24). This, obviously, has no bearing 

on this case. Plaintiff asked the CTA in discovery to produce any documents explaining what the 

phrase means, and the CTA answered by referring to documents about the CTA’s drug and alcohol 

testing program. (Id. at ¶ 37). None of the people involved in keeping Kelley off work (Messina, 

Hampton, and Maddox) could define what is meant by the phrase. (SOF ¶ 20).

The CTA has cited to nothing (factual or legal) that makes this “safety sensitive” designation 

relevant to the facts of this case. The CTA classifies approximately 73.5% of its workforce as “safety 

sensitive.” (Id. at 37). Unless it is claiming that it can treat 73.5% of its workforce however it wants 

by writing the word “safety sensitive,” Plaintiff submits that this “designation” must be seen for 

what it is in this case—pretext for discrimination.

IV. Kelley does not need to show “pretext.”

It is not true that CTA has “articulated non-discriminatory reasons for its actions.” Rather, 

its position is that Kelley was kept out of work for 15 months because he had a diabetic episode 

while at work and that Messina, upon discovering that he had diabetes, kept him off work and 

directed that he be ‘carried as sick on the timesheets.” These are not non-discriminatory reasons for 

its actions. These are discriminatory reasons (i.e., because of Kelley’s diabetes) for its actions. The CTA 

now asserts this motivation (which was never articulated in 2018 or 2019): “CTA’s actions were 

predicated on the goal of protecting Plaintiff, his coworkers, and the public from harm until he 

could establish through a specialist that he was safe to return.” No citation is provided for the 

statement. This statement of “fact” must be disregarded, and the CTA should be sanctioned for 

offering this baseless, disputed “fact” as evidence to this Court. Plus, even if this were a burdenshifting case, the employer’s proffered nondiscriminatory reason must be legitimate. Bragg v. Munster 

Med. Rsch. Found. Inc., 58 F.4th 265, 271 (7th Cir. 2023). Making assumptions and forming personal 

opinions about whether an employee is medically safe to return to work—without relying on 

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legitimate medical advice—is obviously illegitimate. Indeed, employment decisions are not to be 

based on “generalizations associated with the individual’s disability rather than on the individual’s 

actual characteristics.’” Hoffman v. Caterpillar, Inc., 256 F.3d 568, 573 (7th Cir. 2001) (quoting Holiday 

v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir.2000)).

V. No evidence of a “comparator” is required.

Kelley does not need to rely on any “burden-shifting framework” because he has Messina’s 

own testimony about her discriminatory beliefs. He does not have to identify any “comparator.” 

Igasaki v. Illinois Dep't of Fin. & Pro. Regul., 988 F.3d 948, 957–58 (7th Cir. 2021) (“a plaintiff need not 

use the McDonell Douglas framework after Ortiz. At summary judgment, [w]hat matters is whether [a 

plaintiff] presented enough evidence to allow the jury to find in [his] favor.”)(internal citations 

omitted).

VI.The CTA cites a disputed (indeed, baseless) version of events.

The CTA argues that Kelley was kept off work for 15 months because of his own failure to 

act, writing that there is “both documentary evidence and deposition testimony that CTA’s agent, 

Concentra, provided [how to safely return to work] to Plaintiff.” (Def Memo at p. 12). This 

statement lacks any evidentiary support whatsoever. No one, not one person ever, told Kelley there 

was anything he needed to do (or could do) to return to work. (SOF at ¶ 28). There is nothing in the 

record showing that Concentra told Kelley how to return to work, nor is there any deposition 

testimony that this occurred. The CTA’s own witness, Maddox, acknowledged that Lionel Kelley had a 

“non-injury work status report” from July 13th, 2018·where he was told that he could return to 

work without restrictions as of 7/13/18 and that, after that, he “he never received one that said 

anything different.” (Id.). 

The CTA specifically argues that Kelley’s loss of income was caused by his “failure to receive 

clearance from an endocrinologist as required.” (Def. Memo at page 2, lines 8-9). But at no time was 

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this “requirement” conveyed to Lionel Kelley, by Concentra, CTA or anyone else. (SOF 28). Even 

the CTA’s own statement of facts does not provide factual support for this assertion. (Pl’s Response 

at #74). And it did not happen. (SOF 28, 39). 

These statements of “fact” must be disregarded, and the CTA should be sanctioned for 

offering these baseless, disputed “facts” as evidence to this Court.

Conclusion

This case has been pending for 3 years and is set for trial in February 2024. The CTA is 

clearly not entitled to summary judgment under FRCP 56. Several “facts” presented by the CTA lack

any evidentiary support. Countless others are disputed by Plaintiff, as shown by clear citations to the 

record. The CTA is not entitled to judgment as a matter of law, because, viewing the facts in a light 

most favorable to Lionel Kelley, a jury could (easily) find that the CTA discriminated against him for 

having Type 1 diabetes. Plaintiff requests that the motion be denied. 

Submitted by: 

/s/ Julie Herrera

Law Office of Julie O. Herrera

159 N. Sangamon St., Ste. 200

Chicago, IL 60607

312-479-3014 (Phone)

708-843-5802 (Fax) 

jherrera@julieherreralaw.com

Dated: 6/7/23 

Case: 1:20-cv-02881 Document #: 68 Filed: 06/08/23 Page 14 of 14 PageID #:1371