Opinion
No. 98 C 8078.
March 19, 2001
MEMORANDUM OPINION AND ORDER
Pending is defendant Mead Packaging's, a division of Mead Corporation, motion for summary judgment pursuant to Fed.R.Civ.Proc. 56 and Mead Packaging's motion to strike portions of plaintiff's Local Rule 56.1 statement. For the reasons set forth below Mead Corporation's motion for summary judgment is granted (#42-1) and its motion to strike denied as the admission of the objected to statements has no impact on the outcome of the motion for summary judgment (#48-1).
BACKGROUND FACTS
Plaintiff Norman Cole filed a charge of discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission ("EEOC") against Mead Packaging, a division of Mead Corporation, ("Mead") on or about May 13, 1998 alleging that Mead discriminated against him on the basis of his race, African American, and violated his rights under the Americans With Disabilities Act by failing to give him a light duty position upon his return to work after injuring his back. The EEOC issued plaintiff a Dismissal and Notice of Rights on October 30, 1998. Plaintiff filed his complaint against Mead on or about December 21, 1998, within 90 days of his receipt of the EEOC' s Dismissal and Notice of Rights.
MEAD'S OPERATIONS
Mead is engaged in the business of manufacturing beverage cartons from paperboard material for major soft drink and brewery companies. At all relevant times, Mead had four plant manufacturing departments: (i) the print-cut department was responsible for printing and cutting the paperboard; (ii) the finishing department was responsible for folding and gluing the paperboard into a carton and packing the product into a shipping box; (iii) the shipping department was responsible for shipping and receiving Mead's products and the movement of all work in-progress pallets; and (iv) the maintenance department which was responsible, in part, for machine repairs, rebuilds and installations. At all relevant times during plaintiff s employment with Mead, James Bell ("Bell") was responsible for, among other things, hiring, transfer, termination and leave decisions. Bell has been employed at Mead for the last twenty years, held the position of production manger from 1983 to 1998 and the position of plant manager since May 1, 1998.
At all relevant times during plaintiffs employment with Mead, plaintiff was a member of Graphic Communication's Union Local 415-S ("Union") As a member of the Union, plaintiff was subject to the terms and conditions governing his employment set forth in the Labor Agreement by and between Mead and the Union. At all times during plaintiff's employment with Mead, Mead had three work shifts: (1) the first shift began at 7:00 a.m. and ended at 3:00 p.m.; (ii) the second shift began at 3:00 p.m. and ended at 11:00 p.m.; and (iii) the third shift began at 11:00 p.m. and ended at 8:00 a.m.
MEAD'S EMPLOYMENT POLICIES
At all relevant times, Mead had a non-discrimination policy that was incorporated into the policies that plaintiff received. The non-discrimination policy expressed Mead's policy against unlawful discrimination of any kind. At all relevant times, Mead had an Americans With Disabilities Act (ADA) policy which expressed Mead's policy against unlawful discrimination against person with disabilities, as defined by the ADA. Mead's ADA policy states, in part, the following: Based upon formally prepared Essential Job Functions, the Company will make every reasonable effort to match individuals with work, for which they are qualified, within the organization. At all relevant times, Mead also had a no-fault call in policy embodied in the Collective Bargaining Agreement. Pursuant to Article 8, Section 4(2) of the Collective Bargaining Agreement, employees shall be immediately terminated in the event the employee is absent for three (3) consecutive working days without notifying the Company, or fails to give a satisfactory reason for failure to notify. Mead's no-fault call in policy was also embodied in its Attendance Policy which expressed Mead's objective attendance standards.
PLAINTIFF'S EMPLOYMENT AT MEAD
In April 1990, plaintiff applied and interviewed for the job of general laborer at Mead. Bell along with others interviewed plaintiff and Bell made the decision to hire plaintiff. Plaintiff began his employment with Mead working as a general laborer in the labor pool on or about April 25, 1990. As a general laborer in the labor pool, plaintiff was assigned temporarily to various positions including case sealer, take-off helper and feeder when employees who hold such positions were on break or away from work. The take-off helper works in the print/cut department. The take-off helper's principal job function is to take quality cartons off the delivery table and stack them on pallets, while understanding and working within Mead's safety rules and maintaining machine speeds. The cutting pressman in accordance with Mead's standard expectations determines the speed of the line. The essential functions of the take-off helper position include, among other things, continuous lifting of over twenty pounds, continuous carrying over twenty pounds, continuous pushing and pulling over twenty pounds, continuous standing without a break for two hours and total working for eight hours, frequent twisting of the upper body and continuous reaching at shoulder lever of below. Some take-off helpers chose to pick up cartons weighing less than twenty pounds in the aggregate, but they then must work at a faster pace in order to keep up with the line.
The feeder works in the finishing department. The feeder's principal job function is to transfer flat unglued cartons to the gluer feed while understanding and working within Mead's safety rules and maintaining machine speeds. The finishing operator in accordance with Mead's standard expectations determines the speed of the line. The essential functions of the feeder position include, among other things, continuous lifting of over twenty pounds, continuous carrying over twenty pounds, continuous standing without a break for two hours and total standing for eight hours, continuous twisting of the upper body, and continuous reaching at should level or below. Some feeders chose to pick up cartons weighing less than twenty pounds in the aggregate, but they then must work at a faster pace in order to keep up with the line.
The case sealer works in the finishing department on the back end of the folding/gluing equipment. The case sealer's principal job function is to transfer finished cases from the conveyor to the pallet while maintaining machine speeds and working within Mead's safety rules. There is always one case sealer assigned to each operating finishing line. As a matter of practice, case scalers rotate during the course of any shift taking turns at each of the operating finishing lines.
The essential functions of the case sealer position include, among other things, continuous lifting of over twenty pounds, continuous carrying over twenty pounds, continuous pushing and pulling over twenty pounds, continuous standing without a break for two hours and total walking for eight hours, continuous bending, continuous twisting of the upper body, continuous reaching at shoulder level or below and continuous grasping. The job of case sealer requires steady work as one case after another must be removed from the conveyor belt. If a case sealer fails to perform his duties in a timely fashion, the cases on the conveyor belt begin to back up. When a case sealer fails to remove any case from the conveyor for approximately ten minutes, the cases will accumulate and back up to an electronic eye that automatically shuts down the finishing line. When the finishing line shuts down, the entire finishing process comes to a crashing halt and every finisher worker on that line must stop working. In addition to the obvious labor costs involved, any work stoppage also results in a significant loss of production. Mead's profitability requires continuous operation of the finishing line twenty-four hours a day. When a case sealer's failure to removes cases cause the finishing line to shut down, it takes approximately fifteen minutes to a half hour to correct the situation and restart the finishing line. This work stoppage also causes tremendous product waste as any cartons in the folding/gluing machines are usually destroyed by the machine when it shuts down. Further, a machine shut down also results in the finishing machine losing track of the carton count, a matter of considerable importance to Mead, as each case must contain a minimum number of cartons.
On or about May 7, 1990, plaintiff successfully bid for the third shift case sealer position in Mead's finishing department. While plaintiff worked on the third shift, Silas Wells ("Wells"), an African American employee, was the finishing manager of the finishing department and Lonnie Stevenson ("Stevenson"), an African-American employee, was the shift superintendent. Joe Lawson ("Lawson"), a member of the bargaining unit, was the group leader. Plaintiff worked as a case sealer on the third shift until on or about July 10, 1997, when plaintiff was disqualified from the case sealer position because of his poor performance. Plaintiff then transferred to the position of case sealer on the second shift. While on the second shift, Wells remained the finishing manger and Vince Maltese was the shift superintendent. Bob Frey, a bargaining unit employee, was the group leader.
Plaintiff worked as a second shift case sealer from July 10, 1997 until about September 5, 1997 when he was disqualified from the case sealer position on account of his poor performance. In accordance with Article 8, Section 1(F) of the Collective Bargaining Agreement, plaintiff returned to his position in the general laborer pool. Plaintiff did not grieve the disciplinary demotion. Plaintiff remained in this position until his employment termination date on May 22, 1998. While in this position, plaintiff was assigned the tasks of training on the feeder and performing take-off helper duties from March 30, 1998 on. Plaintiff reported to Stevenson from September 5, 1997 through May 11, 1998, and to Richard Saddler ("Saddler") from May 1998 until his employment termination on May 22, 1998.
PLAINTIFF'S PERFORMANCE
Throughout his employment with Mead, plaintiff was reprimanded on certain occasions for failing to comply with Mead's Attendance Policy and poor work performance. Plaintiff was warned about his failure to comply with Mead's Attendance Policy on July 10, 1991, July 28, 1994, April 13, 1995, April 29, 1996 and April 25, 1997. During the period February 9, 1994 through September 5, 1997 while plaintiff was employed as a case sealer, plaintiff received warnings about his poor performance as a case sealer, which ultimately resulted in his being disqualified from the position. On February 9, 1994, Stephenson disciplined plaintiff for violating plant rules relating to lack of application and inefficiency on the job. Lack of application means that an employee is not performing his or her job. At the time plaintiff received this reprimand, he was employed as a third shift case sealer. On February 2, 1996, Stephenson disciplined plaintiff for violating plant rules relating to lack of application and inefficiency on the job. In his written warning to plaintiff, Stephenson stated: "Letting [sic] the line back up from 292 causing the operator to have to stop the machine." Plaintiff complained that the speed of the machine was too fast, but it was the same speed that Mead had always used since Stephenson had been in the finishing department and was not even running as fast as it should be.
On August 21, 1996, Stephenson, in the presence of Baber, Wells and Lawson, disciplined plaintiff regarding his poor work performance. In his written warning to plaintiff, Stephenson stated:
I had a meeting with Norman Cole 8/21/96 about his job performance and explain [sic] that his job performance was total [sic] unacceptable by letting [sic] the line back up to where the packer has to push the cases to keep from stopping the machine. This has [sic] been an ongoing problem for some time. This is my final warning and will not be tolerated any longer. On the very next occasion disciplinary action will be taken up to termination.
On November 8, 1996, Stephenson again disciplined plaintiff for violating plant rules relating to lack of application and inefficiency on the job. Stephenson noted on the plaintiffs warning that he was "[n]ot keeping up with the line. Causing to back up into jet printer. Machine only running 77 an hour. I will not tolerate this type of performance any longer."
On July 10, 1997, plaintiff was disqualified from the case sealer position on account of his poor performance. Wells stated the following on his disqualification report to plaintiff:
"It has been a continuous problem on 3rd shift in the case sealing area. Today, July 10, 1997 at 7:00 a.m., there were several cases of Anheuser Busch 12/12 cartons spilled on the floor. This caused a safety hazard and provided poor quality service to our customer. Also, on the 3rd shift, operators have had considerable amounts of down time on their machines due to the back up in the case sealing area. Effective today, July 10, 1997, you are being disqualified from the position of case sealer and return to the position of general laborer, 1st shift on Friday, July 11, 1997."
Plaintiff was transferred to the second shift case sealer position where the Union group leader and supervisor were both different. On September 5, 1997, plaintiff was disqualified from the second shift case sealer position on account of his poor performance. Maltese, plaintiffs supervisor, stated in his disqualification report to plaintiff the following:
One day last week I was notified that you let 292 gluer back up to where they had to shut down the gluer. Then on Wednesday September 3, 1997 at 11:00 p.m. you left 1376 line with approximately 55 cases still on the conveyor. This type of performance is what caused you to be disqualified as a case sealer the first time. This letter is to inform you that your disqualification is being re-instated as of today September 5, 1997.
Plaintiff returned to his position as a general laborer in the general labor pool. Plaintiff remained in this position until his employment termination date on May 22, 1999. While in this position, plaintiff was assigned to train on the feeder (September 6 through September 12, 1997) and take-off helper from March 30, 1998 on.
PLAINTIFF'S BACK
On or about September 12, 1997, plaintiff sustained a work related injury when hundreds of pounds of stacked cardboard fell on plaintiff. At the time of plaintiffs injury, he was employed in the general laborer pool training to be a feeder. Following his injury, plaintiff reported to Trinity Hospital Emergency Room Department where he was examined by Dr. Maurice Binns. Trinity Hospital's Aftercare Instructions to plaintiff dated September 13, 1998 stated, in part, the following:
"[Plaintiff] has strained the muscles in your lower back. Your exam, however, shows no sign of bone (spine) or nerve (slipped disk) injury. The muscle strain should be able to heal completely. You should feel much better in a few days and all better in week or two.
Dr. Binns ordered plaintiff to be off work for two days and no heavy lifting until Dr. Chand permitted otherwise. Dr. Chand was a doctor at Southeastern Medical Centers, S.C., and occupational health facility. During the period September 12, 1997 through March 30, 1998, plaintiff was examined by either Drs. Chand, Khan, or Garcia at Southeastern Medical Center. At varying times during the period September 12, 1997 through March 30, 1998, plaintiffs medical providers from Southeastern Medical Center either instructed him not to work or released him to work with lifting restrictions at the most of up to twenty pounds and/or no bending. Dr. Chand diagnosed plaintiff as suffering from pain in the lower lumbar spine, otherwise known as lower back pain. Dr. Chan testified that plaintiff's back pain was not unusual for the average person, and in fact, most people experience it at some point throughout their life.
On or about October 20, 1997, plaintiff saw Dr. Mercier, a doctor affiliated with Chicago Orthopedics and Sports Medicine. Mead's workers compensation insurance carrier engaged Mercier to provide an independent medical evaluation of plaintiff's medical condition. Mercier ordered an MRI of plaintiffs lumbar spine and noted in his medical report that "[f]urther conservative medical care, including chiropractic care, should be stopped until the result of the MRI was in." On October 28, 1997, Radiological Physicians, Ltd. took an x-ray and MM of plaintiffs lumbosacral spine. Dr. Chand testified that the results of plaintiffs x-ray were all normal and showed only normal degenerative wear and tear.
Between November 11, 1997 and December 2, 1997, Dr. Chand believed that plaintiffs back strain was improving. Dr. Chand testified that he expected it to improve over the course of time because plaintiff had been living with osteoarthritis for many, many years and that it should subside. On February 27, 1998, Dr. Chand examined plaintiff and observed that his strain showed continued improvement. Plaintiffs spinal motion was decreased, flexion was 30 degrees and extension was 20 degrees. There was still some tenderness in the paralumbar muscles. Straight leg raising was 70 degrees. On March 19, 1998 Dr. Mercier, a doctor hired by Mead to independently evaluate plaintiff, examined plaintiff. Dr. Mercier concluded that plaintiff could return to full duty with no restrictions. Mercier stated in his report the following:
Testing findings indicate extensive false reporting to clinical testing and malingering. He is now approximately 6 months past his alleged injury. He has maximized the value of conservative medical care. This should be discontinued. He is not a surgical candidate. He is at maximum medical improvement requiring no further medical care. He could return to work without restrictions at any time. I see no reliable clinical evidence of permanent disability.
On March 20, 1998 Dr. Garcia indicated that plaintiff could return to modified work where he could only lift up to 20 pounds. He continued to recommend physical therapy two times a week and Naprosyn, 500 mg. was given. Following these releases, plaintiff upon returning to work, requested light work duty. Mead indicated that no light duty was available. On April 2, 1998, plaintiff complained that he reinjured his back at work. According to plaintiff, "his back and leg just went out." Plaintiff was off work following his April 2, 1998 injury from April 3, 1998 until May 11, 1998, missing thirty-two days of work at Mead. During the period April 3, 1998 through June 6, 1998, plaintiff was examined by either Drs. Chand or Tarpas at Southeastern Medical Center. On April 3, 1998, Dr. Chand examined plaintiff and conducted a series of tests that are normally performed on an individual with a lumbar strain. Dr. Chand continued to prescribe the physical therapy and the Naprosyn. Dr. Chand testified that the results of plaintiffs straight leg tests showed that plaintiff manifested a superimposed anxiety element in that the findings were simply non-anatomical. Dr. Chand also found that there was no anatomical explanation for plaintiffs complaint that he experienced decreased sensation on the left half of his body. Dr. Chand noted that plaintiff's reflexes were normal. Dr. Chand testified that while he generally only writes down an abnormal finding in his reports, he noted plaintiffs normal reflexes because it was an important finding in that there is an anxiety element on top of whatever he has.
On April 21, 1998 Dr. Chand examined plaintiff. Dr. Chand found plaintiffs reflexes again to be normal. On May 19, 1998, Dr. Chand examined plaintiff and conducted a series of tests that are normally performed on an individual with a lumbar strain. Dr. Chand found that plaintiff performed all of the tests that he would have expected an individual to perform with no lumbar spine injury. Dr. Chand further found that: (i) plaintiff was improving quite a bit; (ii) the pain that plaintiff claimed he was feeling on the straight leg raises was again non-anatomical pain; and (iii) plaintiffs reflexes, muscles and sensations were all normal. Physical therapy was still recommended twice a week as well as Naprosyn for pain.
On May 5, 1998 Dr. Mercier again examined plaintiff at Chicago Orthopedics and Sports Medicine. Dr. Mercier ordered plaintiff to return to work full duty with no restrictions. Dr. Mercier stated the following in his report:
"findings represent extensive false reporting to clinical testing and malingering. This patient is at maximum medical improvement, requiring no further medical care. He could return to work without restrictions at any time. I see no reliable clinical evidence of plaintiffs permanent disability."
Following Mercier's full duty work release on May 5, 1998, plaintiff returned to work full duty as a general laborer in the labor pool assigned to perform the take-off helper responsibilities on May 11, 1998. Shortly after plaintiff arrived at work, Bell noticed that plaintiff was refusing to perform his job. Bell, along with Sadler and Mallon (the union steward), met with Plaintiff that morning. Bell told plaintiff that he was released to full duty and to either perform his job or go home. Plaintiff again requested light duty. Bell and Mallon told plaintiff that if he went home, he was required to call in every day pursuant to the Collective Bargaining Agreement. While plaintiff called in from May 12 through May 17, Mead's records indicated that he failed to call-off on May 18, 19 and 20. Plaintiff claims that he did in fact attempt to call in. Consequently, Bell made the decision to terminate plaintiffs employment in accordance with Article 8, Section 4 of the Collective Bargaining Agreement and Mead's Attendance Policy. Mead notified plaintiff in writing of the reasons for his termination.
MEAD'S ATTENDANCE POLICY
Mead strictly enforces this no call/no show absence policy. At all times during plaintiffs employment with Mead, every non-African American employee (including Caucasian and Hispanic individuals) who has violated the no call/no show policy has been terminated. On May 28, 1998, plaintiff filed a grievance with the Union following his employment termination claiming that his termination was unjust claiming because he called off every day. Following the grievance procedure set forth in Article 18 of the Collective Bargaining Agreement, the Union refused to submit plaintiff's grievance to arbitration because there was no likelihood of prevailing. At no time during plaintiffs employment did he ever complain or file a grievance with the Union contesting his inability to obtain a light duty job or complain about racial discrimination.
DISCUSSION
Summary judgment is proper if the record as a whole shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). The burden is on the nonmoving party to come forward with specific facts showing that there is a genuine issue for trial by referring to the record evidence on file. McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 795-96 (7th Cir. 1997) (quoting Fed.R.Civ.P. 56(e)). A genuine issue for trial exists only when a reasonable jury could find for the party opposing the motion based on the record was a whole. Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999) (citation omitted).
Defendant moves for summary judgment on plaintiffs failure to accommodate claim under the American With Disabilities Act as well as his race discrimination claim. As to plaintiffs failure to accommodate claim defendants argue that plaintiff has failed to satisfy elements one, three and four of his prima facie case. As to plaintiffs race discrimination claim defendants argue that plaintiff has failed to present sufficient facts to support elements two and four of his prima facie case. Each of these arguments will be addressed in turn.
PLAINTIFF'S ADA CLAIM
Before turning to the evidence, the court shall take a moment to reemphasize the framework used to make out a claim based on failure to accommodate. The ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability. Sutton v. United Air Lines, Inc., 527 U.S. 471, 477, 119 S.Ct. 2139, 144 L.Ed. 2d 450 (1999). To survive a motion for summary judgment on a failure-to-accommodate claim, a plaintiff ordinarily must show that (1) he is a disabled person within the meaning of the ADA; (2) defendant was aware of his disability; (3) he was otherwise qualified to perform the essential functions of his job; and (4) the disability caused the adverse employment action. Foster v. Arthur Anderson, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999). To qualify for the position in question, the plaintiff must show that he is physically capable of performing the essential functions of the position, with or without accommodation, and that he meets the legitimate educational background, employment skills, licences, experience, for the position. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 676 (7th Cir. 1998). Once a plaintiff has created a genuine issue of material fact as to each of these four steps, a defendant's motion for summary judgment will be denied, unless the defendant can show that the plaintiffs proposed accommodation would create an undue hardship for the defendant's business. In the instant case, neither party has raised the issue of undue hardship. Thus, the court focuses solely on the four-step inquiry.
Defendants contend that summary judgment is warranted because plaintiff fails to satisfy elements one, three and four of the prima facie test. Plaintiffs first task, therefore, is to put forth evidence sufficient to allow a reasonable jury to conclude that he is a qualified individual with a disability who, with or without reasonable accommodation, can perform the essential function of the employment position that such individual holds or desires. 42 U.S.C. § 12111(8). Further, and of foremost importance for purposes of this case, a disability is defined as either: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such [an] individual; (B) a record of such impairment; or (C) being regarded as having such an impairment. Id. at § 12102(2)(A)-(C). According to the Supreme Court, consideration of subsection (A) of the definition involves three steps. See Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 2202, 141 L.Ed.2d 540 (1998). The court must first determine whether plaintiff has an impairment. See id. Next, the court must identify the life activity upon which he relies, and determine whether it constitutes a major life activity under the ADA. See id. Finally, by tying the two statutory phrases together, the court must determine whether the impairment substantially limit[s] plaintiffs major life activities. Id.
The parties contest whether plaintiffs impairment substantially limits one or more of his major life activities. The EEOC's interpretive guidance indicates that major life activities are those basic activities that the average person in the general population can perform with little or no difficulty. 29 C.F.R. App. 1630.2(i)(1999). Pursuant to 29 C.F.R. § 1630.2 (j), the EEOC defines substantially limits as leaving the plaintiff: (1) unable to perform a major life activity that the average person can perform; or (2) significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 C.F. R. 1630.2(j)(1)(i)-(ii) (1999). The EEOC has stated that in order to be properly characterized as substantially limited from working as required by the ADA, an individual must be unable to perform either a class of jobs or a broad range of jobs in various classes as compared to the jobs performed by the average person having comparable training skill and abilities. Id. To the contrary the mere inability to perform a single, particular job, will not suffice to establish a substantial limitation with respect to working. Id. The EEOCs interpretative guidance expands on this point, stating that an individual that is unable to perform particular job for one employer, or . . . is unable to perform a specialized job is not substantially limited in his ability to work. Id.
Recently, the Supreme Court in Sutton v. United Airlines, stated when the major life activity under consideration is that of working, the statutory phrase substantially limits requires as a minimum, that plaintiffs allege they are unable to work in a class of jobs. 527 U.S. 471, 474, 119 S.Ct. 2139, 2150, 144 L.Ed. 450 (1999). "Thus an individual is not substantially limited in working just because he or she is unable to perform a particular job for one employer, or because he or she is unable to perform a specialized job or profession requiring extraordinary skill, prowess or talent;" instead, "the impairment must substantially limit employment generally." 29 C.F.R. § 1630.2(j), App. 1999; see Webb v. Clyde L. Choate Mental Health and Development Center, 230 F.3d 991, 998. As such, plaintiff has the burden of presenting evidence to demonstrate that his impairment limited his ability to perform an entire class of jobs. See Skorup v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998).
Plaintiff argues that he is substantially limited in the major life activity of lifting in that his ability to lift is restricted to anything in excess of twenty pounds. Taking the facts in a light most favorable to plaintiff it is undisputed that Dr. Chand did in fact prescribe a weight lifting restriction of no more than 20 pounds. According to defendants, because plaintiff is capable of performing a wide array of other daily jobs including clerk, cook, bartender, security guard, and at least four different labor jobs he is not substantially limited in the major life activity of working as required for purposes of ADA protection. Defendants further argue that plaintiff offers no evidence concerning his geographic region, educational background, skills set or work history, or states any evidence regarding the number of jobs from which he is disqualified to support his disability claim.
Plaintiff argues that the weight lifting restriction placed upon his work by Dr. Chand — that he was restricted from lifting more than 20 pounds — limits his ability to perform his job at Mead. This assertion, however, only lists the restrictions that a physician has placed on plaintiffs work; it does not indicate, as stated above, the class of jobs from which plaintiff is disqualified as a result of his impairment. Courts have held such general averfments insufficient to establish disability status under the ADA. See Broussard v. University of California, 192 F.3d 1252 (9th Cir. 1999). Furthermore, federal case law supports that a maximum weight restriction only is not a disability as defined by the ADA. In Williams v. Channel Master Satellite Sys. Inc., 101 F.3d 346, 348 (4th Cir. 1996), a plant worker, who had a 5% permanent partial disability of the back and was restricted from lifting more than 25 pounds and from pushing or pulling heavy objects, brought an ADA claim against his employer. The Fourth Circuit held "as a matter of law, that a twenty-five pound lifting limitation particularly when compared to an average person's abilities does not constitute a significant restriction on one's ability to lift, work, or perform any other major life activity." Id. at 349. In Ray v. Glidden Co., 85 F.3d 227, 228-229 (5th Cir. 1996) the Fifth Circuit held that a lift truck operator with a vascular necrosis which limited him to lifting 5-10 pounds did not substantially limit the operator's duty because he could still lift and reach so long as the item was not heavy. In Aucutt v. Six-Flags Over Mid-America, 85 F.3d 1311, 1319 (8th Cir. 1996), a security guard at an amusement park was diagnosed with angina, high blood pressure, and coronary artery disease, and was restricted to lifting less than 25 pounds. The Eight Circuit held that a 25 pound weight lifting restriction, without more, was insufficient to show "that his medical condition substantially limited his overall employment opportunities." Id. In an earlier decision, the Eight Circuit also held that a ham boner in a grocery store who had carpal tunnel syndrome and was restricted to light duty, with a 10 pound frequently and 20 pound maximum weight lifting restriction, and could not work with meat products or in cold temperatures, was not disabled. Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995). Recently, in Conteras v. Suncast Corporation, 237 F.3d 756 (7th Cir. 2001.) Our Court of Appeals affirmed that a plaintiffs inability to lift in excess of 45 pounds for a long period of time, the inability to engage in strenuous work, and the inability to drive a forklift for more than four hours was insufficient to constitute a significant restriction on one's capacity to work, as the term is understood within the ADA. Id. at *6
In the present case, the evidence — viewed in the light most favorable to plaintiff — indicates only that plaintiffs weight lifting restriction could possibly slightly restrict his ability to perform the class of jobs at issue. At best, his evidence supports a conclusion that his impairment disqualifies him from the pace at which he would like to work. Plaintiff could still perform the general laborer position within the 20 pound weight restriction but he would be required to work faster with loads of less than 20 pounds. Here, plaintiffs alleged restriction was a lifting restriction only which cannot be concluded to restrict his ability to perform a broad range of jobs in various classes such as an assembly line or in a labor job. These facts make this case decidely different from those which found lifting restrictions to create a "substantial presumption." For example in Cochrum v. Old Ben Coal Co., 102 F.3d 908, 913 (7th Cir. 1996), while the court ultimately affirmed summary judgment in favor of the defendant, the court held that a genuine issue of material fact existed as to whether the plaintiff was disabled under the ADA where the plaintiffs doctor released him to work but with permanent restrictions of no overhead or heavy lifting and no pushing or pulling from his body. Id. at 910. The court ruled that "given the breadth of his physician's physical restrictions, a reasonable jury could conclude that [plaintiff's] should impairment does substantially limit his ability to work." Id. at 911. We therefore hold that plaintiff did not introduce evidence sufficient for reasonable juror to conclude that he was disabled in any major life activity under the ADA.
Alternatively, plaintiff argues that Mead should have assigned him to light duty or accommodated him by granting his additional time-off work. Defendant claims that there were no available positions at Mead to accommodate plaintiffs request for light duty. While a reasonable accommodation under the ADA may include reassignment to a vacant position, Gile v. United Airlines, Inc., 95 F.3d 492, 496-97 (7th Cir. 1996), the plaintiff bears the burden of showing both that a vacant position exists and that plaintiff is qualified for that position. Pond v. Michelin North America, Inc., 183 F.3d 592 (7th Cir. 1999). An employer's obligation to reassign a disabled employee extends only to vacant positions. Gile, 95 F.3d at 499. Thus, an employer does not have to "bump" other employees, even temporary workers, in order to create a vacancy into which a disabled employee can be reassigned. See id; Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 680 (7th Cir. 1998). Plaintiff has completely failed to establish any evidence that a vacant light duty position existed at Mead at anytime during 1998. Plaintiffs reliance on Ms. Andrade's deposition testimony about her five to ten day light assignment in carton sorting in July of 1996 is insufficient to raise an issue of material fact as to the availability of such jobs two years later. Moreover, because plaintiff is not a qualified person with a disability, plaintiff does not have standing to challenge Mead's accommodation policy in that he is not the type of individual protected by the relevant portions of the ADA. Contreras v. Suncast, 237 F.3d 756 (7th Cir. 2001), *8 citing Stuckey v. City of Naperville, No. 97 C 7037, 1998 WL 173298 at *4 (N.D. Ill. April 7, 1998).
Finally, attendance is an implied essential function of nearly every job. Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999); Corder v. Lucent Technologies, Inc., 162 F.3d 924, 928 (7th Cir. 1998); Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir. 1998). "This is especially true in factory positions . . . where the work must be done on the employer's premises; maintenance and production functions cannot be performed if the employee is not at work. Jovanovic v. In-Sink-Erator Div. of Emersen Elec. Co., 201 F.3d 894, 900 (7th Cir. 2000). It is undisputed that plaintiff was absent from September 12, 1997 through March 30, 1998 and April 3 through May 11, 1998. Courts have repeatedly held that the ADA does not require an employer to give an employee indefinite leaves of absence. Corder v. Lucent Technologies, Inc., 162 F.3d 924, 928 (7th Cir. 1998). Therefore, summary judgment is granted in Mead's favor as to plaintiffs ADA claim.
PLAINTIFF'S RACE DISCRIMINATION CLAIM
Plaintiffs race discrimination claim rests on his allegation that Mead refused to accommodate his alleged disability when similarly situated non-African American employees were given light duty assignments. To establish a prima facie case of discrimination under Title VII, plaintiff must show that (1) he is a member of a protected class; (2) he was performing to the legitimate expectations of his employer; (3) suffered an adverse employment action; and (4) others not in the protected group were treated more favorably. Foster v. Arthur Anderson, LLP., 168 F.3d 1029, 1035 (7th Cir. 1999). There is no dispute that plaintiff satisfies elements one and of his prima facie case and element three. He is a member of a protected class and he suffered an adverse employment action. As to element two while it is undisputed that plaintiff had received satisfactory performance reviews during the course of his employment at Mead it is also undisputed that plaintiff had been off for a number of months and at the time of his discharge he has failed to show that he was performing his job to Mead's legitimate expectations. Moreover, plaintiffs claim fails on the fourth element in that he has not produced evidence sufficient to support a reasonable inference that his termination was the result of race discrimination. Plaintiff has not sufficiently identified any similarly situated non-African American employee who was treated differently or more favorably than himself. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1398 (7th Cir. 1997). Plaintiffs reliance on the testimony of Pascuala Andrade, who left Mead in 1997, is insufficient to raise a material fact. It is undisputed that Ms. Andrade injured her back on the job and when she was released back to work it was with the restrictions of no bending, no lifting, and no prolonged standing. She was then assigned to light duty. Plaintiff fails to identify the race and/or national origin of Ms. Andrade, the period that Andrade testified about is two years earlier than the period involving plaintiffs claims. This, at best, constitutes no more than a scintialla of evidence. The remarks made by a Union Leader which plaintiff points to, i.e. you are too old, slow, etc. are also insufficent to raise a factual issue that animus was behind Mead's termination decision. Therefore, summary judgment is granted in Mead's favor on plaintiffs race discrimination claim. Because this court has dismissed plaintiffs federal claims we decline to exercise jurisdiction over his pendant state law claims under the Illinois Human Rights Act.
CONCLUSION
For the reasons set forth above Mead's motion for summary judgment is granted (#42-1). Mead's motion to strike is denied because admission of the statements Mead moves to strike have no impact on the motion for summary judgment (#48-1). Judgment is entered in favor of Mead and against plaintiff. The captioned case is hereby terminated upon the docket records of the United States District Court for the Northern District of Illinois, Eastern Division.