Opinion
Case No. 96 C 5596
February 22, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Abuzaffer Basith ("Basith") brought this cause of action against Defendant Cook County ("Cook County"), his employer, alleging that Cook County discriminated and retaliated against him in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a), and Title VII, 42 U.S.C. § 2000e. Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the court grants defendant's motion for summary judgment.
Background
Abuzaffer Basith was hired as a Pharmacy Technician II in the Inpatient Division of the Pharmacy Department at Cook County Hospital on July 15, 1987. (Basith Dep. I at 9-11.) The Inpatient Division consists of five areas: (1) the main pharmacy, (2) the pediatrics pharmacy, (3) the clean air room, (4) the operating room pharmacy, (5) the chemotherapy room. (Basith Dep. I at 11.) Until March 1997, Dennis Hays ("Hays") was the Director of the Pharmacy Department. (Hays Dep. II at 6-7.) Currently, Candace Richardson ("Richardson") serves as Director of the Pharmacy Department, and prior to becoming the Director, she was Associate Director of the Department. (Richardson Dep. I at 4.) LuAnn Dodini ("Dodini") followed Richardson as the Associate Director of the Department until she left in January 1995. (Hays Dep. II at 14-15.)
As a Pharmacy Technician II assigned to the clean air room, Basith had to perform numerous tasks including: preparing intravenous solutions, cleaning, delivery, stocking, sorting returns for recycling, sorting labels, completing reports and records, setting up the compounder, and preparing hyperal cocktails, TPN bases, and alprostadil solutions. (Def. Ex. 3; Def. Ex. 4; Hays Dep. II at 100-103.) In April 1989, Cook County prepared a job description of detailing the job responsibilities of the Pharmacy Technician II position:
Must be able to work in a sedentary position for long hours, to walk or stand for 4-8 hours daily, to do occasional lifting of objects of up to 50 pounds, to climb, stoop, or crouch, and to push loaded delivery carts and trucks up a 15% grade on ball casters.
(Def. Ex. 2.) The Pharmacy Technician II job description prepared in April 1991 noted that technicians:
(1) Must be able to tolerate prolonged walking/standing
(2) Must be able to lift and carry objects weighing up to 60 pounds.
(3) Must be able to push medication carts over prolonged distances and up ramps.
In the late 1980s, the Pharmacy Department lowered the weight lifting requirement to 20 pounds. (Hays Dep. II at 11-13.)
On June 12, 1991, Basith injured his right leg in an automobile accident. (Am. Compl. at ¶ 14.) From that point on, Basith worked intermittently, taking medical leave several times until 1997. In late April 1992, after taking a medical leave, Basith's physician, Dr. Robert Collins ("Collins"), released him to return to work with certain medical restrictions. The restrictions were to remain effective for ten weeks, from late April to June 1992, and limited Basith from standing more than ten minutes at a time, from walking more than fifty yards at a time, from lifting more than ten pounds, and from bending, stooping, crouching, twisting, climbing, squatting or kneeling. (Id. at ¶ 15.)
Basith reported to Employee Health Services at Cook County Hospital and saw Dr. Zachary Powell ("Powell"). (Def. Ex. 5.) Powell completed a disposition form noting Basith's medical restrictions and then contacted Associate Director Dodini to discuss Basith returning to work with his medical restrictions. Dodini informed him that, given his restrictions, Basith could not work as a Technician II in the Pharmacy Department. (Id.) After hearing this, Basith returned to Powell, who then referred Basith to the hospital's personnel department to discuss an alternative job assignment. (Id.) According to Basith, he reported to the hospital's personnel department and spoke to an employee in the personnel department about his job assignment on several occasions. (Basith Dep. II at 181-87.)
On May 18, 1992, Basith returned to Employee Health Services. (Def. Ex. 6.) Powell completed another disposition form with similar restrictions and again contacted Dodini about Basith's employment. Dodini again told him that Basith could not work as a Technician II in the Pharmacy Department with his current restrictions. (Id.) Powell again referred Basith to the hospital's personnel department and told Basith to return to Employee Health Services on June 22, 1992. (Id.) Basith did not work during the period between late April and June 22, 1992.
On June 22, 1992, the restrictions established in April 1992 were replaced with different set of restrictions effective through August 4, 1992. Basith returned to Employee Health Services with the new restrictions, which included:
Lifting/carrying pushing and pulling not to exceed 20 pounds;
No more than 15 pounds overhead lifting;
No bending/stooping climbing;
Not to operate heavy machinery;
1/3 of day or less standing or walking;
Patient feels physical exhaustion on night shifts due to daytime physical therapy.
Armed with the new restrictions, Powell again contacted Dodini to discuss Basith's work assignment. Dodini said that, with these new restrictions, Basith could now return to work as a Technician II in the Pharmacy Department. Basith consequently returned to work on June 22, 1992 in the same position he held before his accident. (Basith Dep. I at 62-65.)
Still dissatisfied with his working conditions, on July 13, 1992, Basith wrote Dodini a letter requesting that he be reassigned from the 7M shift to the 8C shift because his current and other shifts required him to stand and move too much. (Def. Ex. 9.) On the same day, Basith requested a handicap parking sticker from Employee Health Services. (Def. Ex. 10.) To qualify for a sticker, an employee must present evidence that he or she can walk a maximum of two hundred feet at one time. (Hays Dep. I at 108-12.) Basith presented the necessary evidence, and Employee Health Services issued Basith a sticker. (Def. Ex. 10.) However, upon hearing about this new restriction, Dodini refused to let Basith return to work as a Pharmacy Technician II on any shift. Basith was then placed on a medical leave of absence. (Id.) Basith was told to report back to Employee Health Services on August 5, 1992, after his medical restrictions expired. (Id.)
The 8C shift is the clean-air room shift that begins at eight o'clock. (Basith Dep. I at 74.)
Basith remained on medical leave from July to August 5, 1992. After review of the decision to place Basith on leave, Cook County concluded that Basith's new restriction was "a bureaucratic issue more than a medical issue," and allowed him to return to work as a Pharmacy Technician II. (Hays Dep. I at 112; Def. Ex. 11.) Still, Basith filed a grievance regarding his loss of salary during that three-week period (July 13 to August 5, 1992) and prevailed. (Basith Dep. I at 127.)
On Saturday, August 8, 1992, Basith was back at work. He sent another letter to Dodini, again asking to be assigned the 8C shift exclusively and further requesting (1) that the 8C shift be changed from a ten-hour shift to an eight-hour shift and (2) that the delivery requirements of the shift be reallocated. (Def. Ex. 12.)
Four days later, on August 12, 1992, Basith reported that he injured himself at work by falling from a chair. (Def. Ex. 13.) In light of injuries sustained from the accident in 1991, Basith needed additional surgery and took a medical leave of almost one year. Basith's doctor released him to work on July 12, 1993, with various restrictions in effect until August 4, 1993. These new restrictions prohibited Basith from walking more than minimally and from lifting more than ten pounds. (Def. Ex. 14.) Dodini informed Powell that Basith could not work as a Technician II in the Pharmacy Department with these new restrictions. Basith therefore remained on a medical leave of absence. (Id.) Basith was told to return to Employee Health Services on August 4, 1993. (Id.) For the next four months, Basith repeatedly reported to Employee Health Services with the same restrictions previously issued by his physician. Accordingly, Dodini repeatedly told Powell that Basith could not work as a Technician II in the Pharmacy Department with those restrictions. (Def. Ex. 16-20.)
On December 14, 1993, for the first time since his injury in 1991, Basith's physician issued a set of permanent restrictions. (Def. Ex. 22.) These restrictions limited Basith from walking, bending or stooping more than minimally and from lifting more than ten pounds. (Id.) On January 19, 1994, Cook County offered Basith a position as a Pharmacy Technician II in the recently opened operating room pharmacy at Cook County Hospital. (Def. Ex. 23.) Prior to offering Basith the position in the operating room, Hays measured the average amount of walking a technician in the operating room would perform and determined that it was 100 yards or less. (Hays Dep. II at 31-33.) Hays also agreed to have storeroom personnel deliver stock to the elevator landing outside the operating room pharmacy. (Id.) On January 24, 1994, Basith spent half a day in the operating room pharmacy, where the staff and supervisors explained assignments and showed Basith the facilities. (Def. Ex. 24.) On March 16, 1994, Basith accepted the position in the operating room pharmacy. (Id.) He worked there for a few days, but then left, saying that Cook County "wasn't accommodating him enough." (Hays Dep. II at 107.)
In his response, Basith denies that December 14, 1993 was the first time that his physician issued a set of permanent restrictions. However, Basith cites no reference to the record for this denial. Therefore, under Local General Local Rule 56.1(a), Basith's denials without record support are stricken. Local Rule 56.1(a) states that "each party opposing a motion filed pursuant to Rule 56 of the Federal Rules of Civil Procedure shall serve and file . . . a response to each numbered paragraph in the moving party's [Rule 12(N)] statement, including, in the case of any disagreement specific references to the affidavits, parts of the record, and other supporting materials relied upon."
The next month, in April 1994, Basith was again referred to the hospital's personnel department to find alternative employment placement. (Def. Ex. 26.) On May 20, 1994, Basith and his union representative met with Hays to discuss Basith's request to work in the clean air room. (Def. Ex. 27; Basith Dep. II at 187-91.) At the conclusion of that meeting, Hays agreed to create a special assignment for Basith in the clean air room making piggyback solutions that did not require delivery, stocking, or cleaning. (Id.) Hays testified that he agreed to this special assignment because he "had run the gamut" with Basith and "was trying to, I guess, do the right thing or help him out . . ." (Hays Dep. II at 29-31.) Basith accepted the position.
On February 28, 1995, Basith filed a grievance complaining that since June 1994 he had not been offered an opportunity to cover open shifts in the clean air room on an overtime basis. Basith claimed that Cook County would not accommodate him since they refused to restructure open shifts by reallocating to other employees all delivery and stocking functions. (Def. Ex. 31.) In response to Basith's complaint, Hays testified that there was no need for Basith to work overtime or on holidays in his special assignment as there was an ample supply of the intravenous piggybacks that Basith created, and Basith was unable to cover the other technicians' assignments like delivery and stocking. (Hays Dep. II at 60-73.)
Under the collective bargaining agreement established between Cook County and the local union, of which Basith was a member, Cook County retains the right to determine schedules and work assignments. Specifically, the agreement provides, "assignment of overtime will be based on ability to perform the work assignment and to work the necessary hours." (Def. Ex. 1, Art. III, Sec. 6.)
Despite his grievance, Basith continued to work at his special assignment. However, the hospital inpatient census fell, and there was less and less need for the work Basith was performing. According to Hays, it was difficult to keep Basith busy for 40 hours a week. (Hays Dep. II at 65; Richardson Dep. II at 27-28.)
On January 19, 1996, Basith claimed that he injured himself at work by striking his right knee on a cart. As a result, Basith began another medical leave of absence. (Def. Ex. 35.) During his medical leave, Basith saw Dr. Ira Kornblatt ("Kornblatt"), who reported to Cook County that Basith was "capable of returning to his normal job activities as a pharmacy technician without restrictions." (Def. Ex. 37.) On April 4, 1996, Employee Health Services approved Basith to return to work with the restriction that he not crouch, squat, kneel, or crawl more than one-third of the day. (Def. Ex. 38.) On that same day, Richardson informed Basith that she intended to reevaluate his assignment in light of the revised medical restrictions. (Def. Ex. 39.) Accordingly, on April 25, 1996, Richardson informed Basith in writing that she intended to expand his assignment to include shifts other than his special assignment, in accordance with the hospital's needs. (Def. Ex. 40.) This assignment change was scheduled to take effect on June 7, 1996.
On June 7, 1996, Basith reported that he injured himself at work again. As such, he took another medical leave of absence. (Def. Ex. 45.) On June 27, 1996, Basith again saw Kornblatt, complaining of an ongoing pain in his right knee. (Id.) Kornblatt stated that Basith was capable of returning to work in the normal job activities of a pharmacy technician. (Id.) Basith did not return to work.
On July 16, 1996, Danielle Weiss, one of Basith's attorneys, wrote to the attorney representing Cook County and asked that Cook County reasonably accommodate Basith by assigning him to only do profiling tasks for one month, until Basith was scheduled to undergo surgery. (Def. Ex. 46.) Cook County responded that it could not offer Basith a position with only profiling tasks because those tasks are performed by registered pharmacists. Basith is not a registered pharmacist. (Def. Ex. 48-9.) However, counsel for Cook County suggested a meeting to discuss Basith's request for accommodation. (Def. Ex. 47.)
On August 20, 1996, counsel for Cook County again wrote to Weiss, stating that Cook County had not heard from her concerning a possible meeting and assumed that Basith did not want to attend a meeting of this kind. (Def. Ex. 48.) The letter also asked Basith to inform Cook County when he planned to return to work and what accommodation he would need upon his return. (Id.) Weiss responded that Basith wanted to postpone meeting with Cook County until after his surgery because he expected "to have substantial improvement in the use of his leg after surgery and a meeting before would be futile." (Def. Ex. 49.)
Months later, on January 3, 1997, Richardson sent Basith a letter confirming two telephone conversations she had with him concerning his employment and medical status. (Def. Ex. 50.) The letter stated that Basith had exhausted his sick and vacation time, and informed him that he should report to the Department of Human Resources to inquire about an appropriate medical leave of absence. (Id.) After receiving this letter, Basith had Weiss contact counsel for Cook County to schedule a meeting in order to discuss when Basith would be able to return to work and what accommodations would be necessary. (Def. Ex. 51.) The meeting was to take place on January 16, but was rescheduled for February 7 at Basith's request. (Id.) At the meeting, it was agreed that, since Basith's two treating physicians had given him conflicting advise about possible work restrictions, he would submit to an independent medical examination to be conducted by a specialist in orthopedics surgery or rehabilitative medicine. (Def. Ex. 51, 52.) The parties jointly selected Dr. Morgenstern ("Morgenstern") to perform the independent medical evaluation. Basith scheduled an appointment with Morgenstern for March 19, 1997. (Def. Ex. 53.)
Cook County received Morgenstern's evaluation on May 5, 1997. Morgenstern recommended that Basith perform a "mostly sitting" job. (Def. Exs. 52, 54.) Consequently, on May 23, 1997, Cook County offered Basith, in writing, a position in the acquisitions area of the Pharmacy Department where his primary responsibility would be sorting expired medications. (Def. Ex. 55.) Basith accepted the position and returned to work on July 29, 1997. (Def. Ex. 56-59.)
Basith filed a number of charges with the Equal Employment Opportunity Commission and the Illinois Human Rights Department. On July 7, 1992, Basith filed a charge of discrimination with the Illinois Department of Human Rights, which was cross-filed with the U.S. Equal Employment Opportunity Commission ("EEOC"). (Def. Ex. 8.) In his charge ("First Charge"), Basith claims that Cook County discriminated against him on account of his physical handicap and his sex in April and May of 1992. (Id.) Over three years later, after completing its investigation, on September 8, 1995, the EEOC issued Basith a right-to-sue letter.
On August 2, 1995, Basith filed an additional charge of discrimination with the EEOC ("Second Charge" or "Overtime Charge"). This time Basith alleges that Cook County discriminated against him on the basis of his race and disability in denying him overtime opportunities during the period of September 1994 and May 1995. (Def. Ex. 32.) The EEOC issued Basith a right to sue letter in connection with that charge on January 31, 1996.
Finally, on February 18, 1997, Basith filed another charge of discrimination with the EEOC, alleging that Cook County discriminated against him on the basis of race, sex, national origin, and disability, and retaliated against him ("Third Charge"). (Def. Ex. 60.) The EEOC issued a right-to-sue letter on March 31, 1997. (Id.) These three EEOC charges form the bases of the instant action. On September 4, 1996, Basith filed the first of three complaints with this court. Subsequently, after receiving right-to-sue letters for his Second and Third Charge, he filed additional complaints. On August 20, 1997, Basith filed his First Amended Consolidated Complaint, in which he combined claims from his First, Second and Third Charge. Having concluded discovery, Defendant now moves the court for summary judgment on all Basith's claims.
Analysis
Cook County argues that the facts in this case show that: (1) Basith was not disabled under the ADA prior to December 14, 1993; (2) Basith could not perform the essential functions of his positions and therefore was not a qualified individual with a disability; and (3) Cook County accommodated him before and after he became disabled within the meaning of the ADA. As such, Cook County moves the court to enter summary judgment on its behalf under Rule 56 of the Federal Rules of Civil Procedure.
The court will render summary judgment only if the factual record shows that no genuine issue as to any material fact exists, entitling the moving party to judgment as a matter of law. Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 173 (7th Cir. 1996) (citing Fed.R.Civ.P. 56(c)). The court will not render summary judgment if "a reasonable jury could return a verdict for the nonmoving party." Sullivan v. Cox, 78 F.3d 322, 325 (7th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, the court views the facts in the light most favorable to the nonmoving party. See Bratton, 77 F.3d at 171; see also Sullivan, 78 F.3d at 325.
On a motion for summary judgment, the moving party "bears the initial burden of showing that no genuine issue of material fact exists." Hudson Ins. Co. v. City of Chicago Heights, 48 F.3d 234, 237 (7th Cir. 1995). Then the burden shifts to the nonmoving party, who "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995).
Rule 56.1 of the Local General Rules for the Northern District of Illinois reflects these burdens. See Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994). Under Local Rule 56.1(a), the moving party must submit a statement of material facts in the form of short numbered paragraphs supported by specific references to the factual record. Under Local Rule 56.1(b), the opposing party must submit a response to each such paragraph, including (in the case of disagreement) specific references to the factual record. If the nonmoving party does not disagree with a fact in the moving party' statement, the court will deem that fact admitted. See Local Rule 56.1. Similarly, if the nonmoving party disagrees with a fact in the moving party's statement but fails to support its disagreement with a specific reference to the factual record, the court may deem that fact admitted as well. See Fed.R.Civ.P. 56(e);Flaherty v. Gas Research Inst., 31 F.3d 451, 453 (7th Cir. 1994). The Seventh Circuit Court of Appeals has "repeatedly upheld the strict enforcement of these rules." Waldridge, 24 F.3d at 922.
The court reminds the parties of the necessity and importance of complying with the local rules pertaining to motions for summary judgment. The Seventh Circuit has made clear "`the exacting obligation [local] rules impose on a party contesting summary judgment'." Little v. Cox's Supermarket, 71 F.3d 637, 641 (7th Cir. 1995) (citations omitted). Local rule, 56.1 and like its predecessors, 12(M) and 12(N), is designed to "inform the court of the evidence and arguments in an organized way — thus facilitating its judgment of the necessity for trial." Id. This rule clearly and specifically put the moving and non-moving parties on notice as to the required material each party must present to the court. Here, plaintiff does not respond completely to defendant's factual statement and therefore fails to comply with the rules. However, the court is not relieved of its obligation to determine whether there is a genuine issue of material fact. See Johnson v. Gudmundsson, 35 F.3d 1104, 1116 (7th Cir. 1994). As such, the court will proceed to consider the merits of this case.
I. ADA
To prevail on a claim under the ADA, plaintiff must show that he: (1) suffers from a disability as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the position sought; and (3) was discriminated against by his employer because of her disability.See 42 U.S.C. § 12101 et seq.; see also Knapp v. Northwestern Univ., 101 F.3d 473, 478 (7th Cir. 1996). Defendant argues that Basith has not presented sufficient evidence to meet his burden on any part of the prima facie test.
The materiality of a disputed fact depends on the relevant substantive law, in this case the ADA. See Anderson, 477 U.S. at 248; Sullivan, 78 F.3d at 325. The ADA states that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employee, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
Disability under the ADA
Defendant first argues that Basith was not disabled under the meaning of the ADA prior to December 14, 1993. In response, Basith maintains that even before December 14, 1993, his disability was essentially the same. Basith has the burden of establishing the existence of his disability. See Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996). The ADA considers a person disabled if she: (1) has a physical or mental impairment which substantially limits one or more of the major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. See 42 U.S.C. § 12102(2). In determining whether a person has a physical or mental impairment that substantially limits a major life activity, a court considers the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2); see Albertsons, Inc. v. Kirkingburg, 525 U.S. 555 (1999). The impairment need not be "permanent" but cannot be "temporary" and must be at least of indefinite prospective duration. See EEOC v. Joslyn Manufacturing Co., No. 95 C 4956, 1996 WL 400037 (N.D. Ill. 1996); 29 C.F.R. § 1630.2(j)(2).
Prior to December 14, 1993, Basith's physicians issued various restrictions on Basith's walking and lifting abilities. Each set of restrictions were to remain in effect for limited periods of time. The evidence suggests that Basith's restrictions on his walking and lifting did not officially become of indefinite prospective duration until December 14, 1993. Yet, while Basith's physician established limited restrictions on his physical activity for defined periods of time, the court is persuaded a fact question exists as to whether Basith's injuries were permanent in nature in the years between Basith's accident in 1991 and his doctor's final determination in 1993.
"An individual is substantially limited in the major life activity of working if he is `significantly restricted in ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person with comparable training, skills, and abilities." Malabarba v. Chicago Tribune Co., No. 96 C 5790, 1997 WL 323747, *7 (N.D. Ill. June 11, 1997) (plaintiff with health restrictions prohibiting him from bending at the waist, lifting over ten pounds and prolonged twisting or sitting considered disabled under ADA); 29 C.F.R. § 1630.2(j)(3)(i). Like the plaintiff in Malabarba, Basith has represented sufficient evidence to suggest that from June 1991 forward, he had an impairment which substantially limited his ability to perform a major life activity — work.
First, Basith took several, extended medical leaves. He took one from June 1991 to June 1992; another from July to August 1992; and another still from August 12, 1992 to July 1993. On several occasions, it was Defendant that mandated Basith refrain from working in light of his medical restrictions. Even when permitted to work, he was always restricted in some way from performing basic tasks like: standing for extended periods of time; walking; lifting, carrying, pushing or pulling more than ten or twenty pounds; or bending, stooping, crouching, twisting, climbing, squatting and kneeling. Although Basith's injury may have varied in degree throughout 1991 to December 1993, no physician ever concluded that it subsided completely. Therefore, the court finds that Basith did have a disability as required under the ADA. Although Basith has established that he is disabled, he fails to establish the second and third prongs of a prima facie case under the ADA.
Qualified to Perform Essential Functions
Defendant next contends that Basith could not perform the essential functions of the Pharmacy Technician II position, and therefore was not a qualified individual with a disability under the ADA. The court agrees. Basith has the burden of proof on this issue, and must show that he is a qualified individual. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996). To be qualified under the ADA, an individual with a disability must be able to perform the essential functions of the job in question with or without reasonable accommodation. See 42 U.S.C. § 12111(8). The essential functions are the "fundamental job duties of the employment position" in question. 29 C.F.R. § 163.2(n)(1); see Bombard, 92 F.3d at 563; see also Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281, 1284-85 (7th Cir. 1996). In determining what functions are essential, a court may consider: (1) the employer's judgment as to which functions are essential; (2) written job descriptions; (3) the consequences of not requiring the individual to perform the function; and (4) the work experience of current incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3).
After reviewing the evidence presented, the court concludes that no fact issue exists as to whether delivery and stocking of medication, which require extensive walking, pushing, and pulling, are essential functions of the Pharmacy Technician II position. The Cook County Hospital job descriptions for Pharmacy Technician II employees state that technicians must be able "to push loaded delivery carts and trucks up a 15% grade on ball casters" and must "be able to push medication carts over prolonged distances and up ramps." (Def. Ex. 2-3). Further, the "Essential Job Function" form completed by the Cook County Department of Human Resources and six Pharmacy Department employees for the Pharmacy Technician II position concluded that: (1) removing delivery as a function would fundamentally change the job; (2) performance of delivery is one of the primary purposes of the job; (3) there would be significant consequences if delivery is not performed; and (4) previous incumbents in the position made deliveries. (Def. Ex. 4).
Another essential function of the Pharmacy Technician II position is lifting boxes of medications and supplies that weigh up to twenty pounds in order to receive stock and repackage bulk pharmaceuticals. (Def. Ex. 3-4). Basith was limited to minimal walking and to lifting no more than twenty (at times 10 or 15) pounds because of his medical condition. Thus, according to both his job description and Cook County, his employer, he was unable perform the essential functions of the Pharmacy Technician II position, namely making deliveries, receiving stock, and repackaging bulk pharmaceuticals. Since Basith was unable to perform these functions, he was not a qualified individual entitled to protection under the ADA. See Malabarba v. Chicago Tribune Co., 149 F.3d 690, 698 (7th Cir. 1998).
To defeat summary judgment, Basith bears the burden of showing that a fact question exists as to his capacity to perform the essential functions of the Pharmacy Technician II job. See Weiler, 101 F.3d at 524. Instead of doing this, in response to Cook County's argument, Basith contends that delivery is not an essential function of the position because it only requires 45 minutes to an hour of the technician's eight hour shift. However, the frequency with which a particular job responsibility is performed does not determine its essentiality. See Miller v. Illinois Dept. of Corrections, 107 F.3d 483, 485 (7th Cir. 1997) (rejecting a blind correctional officer's argument that she was qualified under the ADA because even though she could not perform duties like standing guard or counting inmates, she could still perform certain duties like working the switchboard and handing out weapons at the armory). As the Miller court noted, "if an employer has a legitimate reason for specifying multiple duties for a particular job classification, duties the occupant of the position is expected to rotate through, a disabled employee will not be qualified for the position unless he can perform enough of these duties to enable a judgment that he can perform its essential duties." Miller, 107 F.3d at 485.
Basith's situation is much like the plaintiff's in Miller. "She [plaintiff] wanted to remain at Graham on her own terms, and those terms involved her remaining . . . 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." Miller, 107 F.3d at 487. Stocking and delivery of pharmaceuticals are essential functions assigned to all Pharmacy Technician II employees. Basith was unable to perform those functions and as such, he is not qualified for the position. Having found that no genuine issue of material fact exists as to whether Basith was able to perform certain essential duties of a Pharmacy Technician II, the court concludes that Basith was not a qualified individual under the ADA,
To further support his argument that delivery of medications was not an essential function Basith points to the fact that Cook County created a position for him in the clean air room that did not involve deliveries. However, the Seventh Circuit has held that an employer who goes beyond the requirements of the ADA to accommodate a disabled employee must not be punished for its generosity. See Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997) ("employers should not be discouraged from doing more than the ADA requires . . ."); see also Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538 545 (7th Cir. 1995) ("and if the employer . . . bends over backwards to accommodate a disabled worker — goes further than the law requires . . . it must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation.")
Reasonable Accommodation
Assuming, arguendo, that Basith could establish that he was a qualified individual entitled to protection under the ADA, the court must next determine whether Cook County sufficiently fulfilled its obligation to accommodate Basith under the ADA. After a qualified employee with a disability informs his employer of his disability and requests accommodation for that disability, "the employer must engage with the employee in an `interactive process' to determine the appropriate accommodation under the circumstances." Bombard, 92 F.3d at 563. An employer does not necessarily have to provide the employee with the accommodation he requests, rather he must provide some reasonable accommodation. See Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996).
A review of the evidence suggests that Cook County did reasonably accommodate Basith's disability. First, Cook County held Basith's position open and maintained him as an employee on medical leave of absence throughout the time of this complaint. Unpaid leave, according to 29 C.F.R. § 1630.2(o), App., can be a reasonable accommodation. Further, after December 14, 1993, Cook County engaged in an `interactive process' with Basith, attempting to accommodate Basith's needs and requests. See Jovanovic v. In-Sink-Erator, 98-3726, 2000 WL 12860, *4 (7th Cir. 2000) ("it is the employee's initial request for an accommodation which triggers the employer's obligation to participate in the interactive process of determining one"). On various occasions, Cook County referred Basith to the hospital's personnel department for discussion about possible placement opportunities within the hospital in accordance with his medical restrictions.
About one month after his restrictions became permanent in December 1993, Cook County offered Basith a position in the newly opened operating room pharmacy. Cook County, after investigating the physical demands of the position, determined that Basith could perform the duties in the operating room pharmacy despite his medical restrictions. Although he initially accepted this position, Basith rejected it a few days later, stating that Cook County was not accommodating him enough. Cook County then went beyond the call of duty and created a special assignment for Basith in the clean air room that required no delivery, stocking, or cleaning tasks. Despite Cook County's actions, it is not reasonable to expect an employer to eliminate an essential function of the job for the disabled employee, essentially creating a new job for him. See Gile, 95 F.3d at 499 ("Nor is an employer obligated to create a new position for the disabled employee"); Ingerson v. HealthSouth Corp., 1998 WL 88154, **4-5 (10th Cir. 1998) (holding that it was not a reasonable accommodation to require the nurse's employer to eliminate an essential function of the job to accommodate the nurse's inability to lift more than twenty pounds).
As proof of Cook County's alleged failure to accommodate, Basith argues that in his newly created position, Cook County would not allow him to work overtime or on holidays. He maintains that other Pharmacy Technician II workers were offered opportunities to work overtime or on holidays, while he was not, despite the fact that he could perform some of the same tasks. In making this argument, Basith ignores the fact that Cook County is not obligated to reallocate essential functions of the technician position, simply so that he could work overtime. See Gile, 95 F.3d at 499 ("An employer may be obligated to reassign a disabled employee, but only to vacant positions; an employer is not required to "bump" other employees to create a vacancy so as to be able to reassign the disabled employee"); Ingerson, 1998 WL 88154 at **4-5.
An employer may reasonably accommodate an employee with a disability by restructuring the employee's job, modifying the job to reallocate or redistribute nonessential functions. See 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii), Appendix. However, because he was limited in his capacity to perform essential functions like stocking and delivering pharmaceuticals, Basith was not needed on an overtime basis. Nothing under the ADA requires employers to find disabled employees alternative employment opportunities which would impose an undue hardship or violate established company policy. See 42 U.S.C. § 12112(b)(5)(A). Thus, as Cook County asserts, it should not be held liable for its reasonable refusal to create special assignments that would include overtime and holiday work for Basith. Therefore, the evidence suggests that Cook County went above and beyond the reasonable accommodation required by the ADA. This court believes no reasonable jury could find otherwise.
Having found that Basith fails to present facts sufficient to make out a prima facie case of discrimination under the ADA, the court grants defendant's motion for summary judgment on Basith's ADA claim.
II. Title VII Retaliation
Basith claims that Cook County refused to accommodate him and discriminated against him because he filed a number of charges of discrimination with the EEOC, beginning July 7, 1992. Under Title VII, it is unlawful "for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice [by Title VII]." 42 U.S.C. § 2000e-3(a). When a plaintiff alleges discriminatory retaliation, in the absence of direct evidence of an employer's intent, courts employ the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973); see Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1146 (7th Cir. 1997). If Basith establishes a prima facie case of retaliation, the burden of production then shifts to Cook County to present a legitimate, non-retaliatory reason for its actions. Id. If Cook County meets this burden, the burden then shifts back to Basith to demonstrate that Cook County's reasons were pre-textual. Id.
To establish a prima facie case of retaliation, Basith must establish that (1) he reported or otherwise opposed conduct prohibited by Title VII; (2) he suffered an adverse, job-related action; and (3) there is a causal link between his opposition to unlawful discrimination and the adverse action. Id. Basith has established the first element of the prima facie case. An employer who retaliates against an employee for filing a discrimination charge may be liable under Title VII. See Mack v. County of Cook, 827 F. Supp. 1381, 1386 (N.D. Ill. 1993).
Next, Basith argues that he suffered two adverse, job-related actions, namely that Cook County refused to let him return to work between April 1992 and July 1997 and that Cook County refused to allow him to work overtime in his special assignment. As the court has detailed above, these allegations are unsupported by the record. Additionally, the court found no authority to suggest that requiring an employee to take medical leave can be considered an adverse employment action. In fact, the opposite is often true. Plaintiffs frequently bring suit against employers for failure to allow them the opportunity to take medical leave. See Gleklen v. Democratic Congressional Campaign Committee, Inc., No. 99-7041, 2000 WL 2598 (D.C. Cir.) (plaintiff sued employer who terminated her when she refused to work full-time following her pregnancy); King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1998) (plaintiff asserts that defendant violated the FMLA when it terminated her employment because she took leave to which she was entitled under the FMLA).
Even assuming that Basith could present enough evidence to make a prima facie case of retaliation, his claim for retaliation still fails. Cook County has presented a number of legitimate, non-retaliatory reasons for both its requiring Basith to take medical leave and for refusing to schedule him to work overtime and on holidays. Because of his various medical restrictions, Basith was unable to perform two central responsibilities assigned to Pharmacy Technician II employees — stocking and delivering medications. In addition, in Basith's new assignment, designed to accommodate his disability, no work after hours or on holidays was needed. As such, Cook County has satisfied its burden to show a legitimate non-retaliatory reason for what Basith considers its adverse employment actions. Finding no evidence of pretext, the court determines that Basith's retaliation claim must fail. The court therefore grants defendant's motion for summary judgment on Basith's retaliation claim as well.
CONCLUSION
For the reasons set forth above, the court grants Cook County's motion for summary judgment in its entirety [20-1]. The court also denies Basith's motion to strike defendant's statement of contested facts [23-1]. While lengthy, Cook County's statement conforms to the requirements set forth in Local Rule 56.1.