Smith v. Union Pacific Railroad

Filing 139

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 3/13/2018. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STANLEY SMITH,
Plaintiff,
v.
UNION PACIFIC RAILROAD,
Defendant.

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Case No. 11-cv-986

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff Stanley Smith (“Plaintiff”) brings this action against Defendant Union Pacific
Railroad (“Defendant” or “Union Pacific”) for violating the Americans with Disabilities Act
(“ADA”) by allegedly failing to return him to work in a timely manner after he completed
medical treatment for alcoholism. This matter is before the Court on Defendant’s motion for
summary judgment [125]. For the reasons stated below, the Court grants Defendant’s motion
[125]. This order resolves all remaining claims in the case. Judgment will be entered in favor of
Defendant and against Plaintiff.
I.

Background
The Court takes the relevant facts primarily from the parties’ Local Rule 56.1 statements,

[127], [135], and [138], and the exhibits attached thereto. The following facts are undisputed
except where otherwise noted. The Court has jurisdiction over Plaintiff’s ADA claims pursuant
to 28 U.S.C. § 1331. Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
Plaintiff was employed by Defendant at all times relevant to this action. Defendant is an
employer within the meaning of the ADA, 42 U.S.C. § 12111(5).

Plaintiff was hired by

Defendant in June 1998 as a brakeman conductor and held that position for two years.

Thereafter, Plaintiff became a Locomotive Engineer, a position he has held ever since. As a
Locomotive Engineer, Plaintiff ran both freight and passenger trains between 2000 to 2005.
Since 2010, Plaintiff has been running only passenger trains for approximately 51 hours per
week, Sunday through Friday. When running passenger trains, Plaintiff is responsible for seven
cars, which transport approximately 1,000 passengers during morning rush hour and 600
passengers during evening rush hour.
As an employee of Defendant, Plaintiff was aware that he was required to be familiar
with and comply with Defendant’s policies and procedures. Plaintiff also was subject to a
Collective Bargaining Agreement (“CBA”) between Defendant and the Brotherhood of
Locomotive Engineers that covered the terms and conditions of his employment at Defendant.
In 1999, Plaintiff took a leave of absence because he was charged with driving under the
influence (“DUI”). At that time, Plaintiff was required to go through Defendant’s Employee
Assistance Program (“EAP”) to receive treatment for both drug and alcohol abuse before he
could be reinstated to work.

Plaintiff did not experience any difference in the terms and

conditions of his employment after he returned to work other than being subject to random drug
tests. After he returned to work, Plaintiff did not receive further medical treatment; instead, his
treatment plan was “[t]he Father, and the Son, and the Holy Ghost.” [127-4] at 19-20 (Plaintiff’s
deposition testimony).
On April 16, 2005, Plaintiff was pulled from service because of a moving violation, also
known as a Form B violation, because he admittedly ran a Metra train past a red flag without
giving notification to the men working on the tracks that he was coming through. Thereafter,
Plaintiff was suspended pending an investigation, which never occurred because he went out on

2

an extended leave of absence in September 2005. At the time, Plaintiff was aware that a Form B
violation carried discipline of at least a 60-day suspension.
On or about September 22, 2005, Plaintiff reported to Defendant that his driver’s license
had been revoked for operating a vehicle under the influence of alcohol or a controlled
substance. As a result, Plaintiff was once again enrolled in the EAP and required to be evaluated
to determine whether he had an active substance abuse disorder. At that time, Lori Scharff was a
Manager of the EAP and reported to Dr. Mark Jones.
Plaintiff entered an intensive outpatient treatment program at Rush University Medical
Center (“Rush”) in October 2005 with John Houlihan treating him. Scharff testified from
records that Houlihan reported to her that Plaintiff was “struggling with his program with
inconsistent attendance and participation.” [127-6] at 6. Plaintiff denies this. Plaintiff testified
that he could not recall whether he was still using drugs or alcohol at that time. [127-4] at 35.
Plaintiff thereafter was admitted to Cornerstone of Recovery (“Cornerstone”) in
Tennessee. After five days in the program, Plaintiff returned home to Chicago, claiming that
Cornerstone could not meet his needs.

Defendant thereafter arranged for Plaintiff to be

transferred to Pine Ridge in San Diego on February 27, 2006. Plaintiff stayed at Pine Ridge until
March 27, 2006. Plaintiff then returned to Rush for outpatient treatment, as recommended by
Pine Ridge. Scharff testified from records that an unidentified clinician reported to Defendant:
“[Plaintiff] is making minimal progress. Continues to have medical concerns. [Plaintiff] attends
[Intensive Outpatient Program (‘IOP’)] infrequently.” [127-6] at 8-9. Plaintiff disputes that he
was “making minimal progress.” [135] at 5.
Plaintiff finished the Rush IOP program in the Spring of 2006. Plaintiff testified at his
deposition that Houlihan informed him that he completed the program. See [135-1] at 28.

3

Plaintiff submits a letter from Rush Program Counselor Edward Lynch, dated May 30, 2006,
concerning his completion of the program. See [135-2]. Defendant objects to the inclusion of
this letter in the record on the basis that it is not authenticated and is inadmissible hearsay.
Lynch wrote in relevant part:
To Whom It May Concern:
Please accept this letter as verification that [Plaintiff] successfully completed
Intensive Outpatient Treatment (IOP) for Alcohol Dependence, and Cocaine
Abuse, at Rush Behavioral Health Center (RBH), as of 5/26/06.
[Plaintiff] attended a total of 45 IOP sessions, for a total of 157.5 treatment hours.
These sessions took place from 10/19/05 through 1/26/06, and from 4/5/06
through 5/26/06. [Plaintiff] was referred for Inpatient Treatment during the
period from 1/26/06, until Mr. Smith resumed IOP treatment on 4/5/06.
At discharge from IOP, it was agreed that [Plaintiff] will continue treatment in a
Continued Care Group (CCG) at RBH, meeting once weekly, for a period of six
months to one year.
…
[135-2] at 1.
Lynch testified at his deposition that if he had “see[n] something that indicate[d] a level
of need higher than” the weekly Continued Care Group, “[he] would have indicated” in his letter.
[135-3] at 23. Lynch also testified:
Q
But as far as both yourself understanding that you’re not an individual at
UP that says who can work there and who cannot, you made the recommendation
that at least from the treatment that you observed [Plaintiff] had the ability as far
as you were concerned to return to full work responsibilities without restriction?
A

As far as the treatment was concerned.

Q

Yes, that’s correct?

A

Correct.

Q
In other words, with respect to your observations as it relates to his drug
and alcohol dependency, you didn’t see that as an obstacle for him to return to
work without restriction, correct?
4

A

Correct.

[135-3] at 58.
At Houlihan’s recommendation, Plaintiff was scheduled for a fitness for duty
examination with Dr. Stafford Henry on June 30, 2006. On August 24, 2006 and continuing on
August 29, 2006, Plaintiff met with Dr. Henry for his fitness for duty examination.

On

September 3, 2006, Dr. Henry provided Defendant with a fourteen-page assessment of Plaintiff,
including his recommendations regarding Plaintiff’s return to work:
In looking at the totality of all available data, as dated above, I am of the opinion,
to a reasonable degree of medical and psychiatric certainty, there is no evidence to
indicate or even suggest that [Plaintiff] has been able to attain a sustained period
of abstinence. This is concerning as he is seeking to again resume his position as
an engineer, a position which at any point could involve the safety of hundreds of
citizens.
I am of the opinion, to a reasonable degree of medical and psychiatric certainty, at
the present time, there exists an insufficient clinical basis to opine that [Plaintiff]
has been abstinent, is firmly engaged in recovery and therefore appropriate to
warrant the public trust.
I am further of the opinion, to a reasonable degree of medical and psychiatric
certainty, that if [Plaintiff] is to again be appropriate to resume his position as
engineer for the a Railroad Company, he will need to first present with at least
one-year documented abstinence from alcohol and all other mood-altering
substances. In order for him to achieve this, I am of the opinion, to a reasonable
degree of medical and psychiatric certainty, [Plaintiff] will need to enter a
halfway or three-quarter house. He would also have to submit urine toxicology
screens (which assess for the presence of ethyl glucuronide) at a frequency of at
least once per week, for a period of one year. Prior to his return to his position,
Mr. Smith would need to have not only adhered to the above recommendations,
but also submitted to a repeat fitness for duty evaluation by an assessor selected
by Union Pacific Railroad Company.
On September 15, 2006, Dr. Jones told Plaintiff that he could not return to work until
these recommendations were completed because he had not adequately established sobriety, had
not finished care, and was still in danger of relapse. At his deposition, Dr. Jones testified from

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notes that Plaintiff’s response was “[h]e was ‘Angry and feels that he was discriminated against
in some way’” and that his response back was “[t]hat it was [Plaintiff’s] lack of commitment that
got [him] this far.” [127-8] at 12. Plaintiff denies this and cites to his affidavit, in which he
states that he did not learn until Fall 2010 that his “continued treatment was unnecessary and
Union Pacific’s refusal to allow me to return to work was improper.” [135-5] at 1. Plaintiff also
cites to Lynch’s May 30, 2006 letter and deposition testimony about Plaintiff’s fitness to return
to work.
Thereafter, Defendant arranged for Plaintiff to be admitted to Extended Aftercare in
Houston for treatment, which lasted approximately one year from January 2007 until January
2008. While at Extended Aftercare, Plaintiff worked nearly full-time as an Account Rep with a
collection agency from February 28, 2007 through November 28, 2007. After his return to
Chicago, Plaintiff was on house arrest until April 8, 2008 because he had left the state with a
pending DUI. Defendant maintains, and Plaintiff denies, that Plaintiff’s house arrest delayed his
return to work at Union Pacific.
On April 24, 2008, Houlihan reported to Defendant that Plaintiff was safe to return to
work and recommended continued aftercare at Holy Family. As a result, a return to work
physical was scheduled for Plaintiff for May 12, 2008. On May 29, 2008, the Health and
Medical Department required Plaintiff to see Dr. Henry for a follow-up fitness for duty
examination.
On June 3, 2008, Plaintiff attended a follow-up fitness for duty examination with Dr.
Henry.

On July 9, 2008, Dr. Henry provided Defendant with eleven-page assessment of

Plaintiff, including his recommendations regarding Plaintiff’s return to work:
Although all clinical evidence would suggest that [Plaintiff] has recently been
abstinent, I am of the opinion, to a reasonable degree of medical and psychiatric
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certainty, that prior to his return to the workplace, he would need to compile at
least a four-to-six-month period of documented abstinence. This should include
screening for the presence of ethyl glucuronide. I am further of the opinion, to a
reasonable degree of medical and psychiatric certainty, that if [Plaintiff] is
allowed to return to return to his position, after having demonstrated this period of
documented abstinence, urine toxicology screening should continue for the entire
period of his employment.
Mr. Smith would also need to regularly use his C-Pap as untreated symptoms of
Obstructive sleep apnea could render him both depressed and drowsy. Other
recommendations would include Mr. Smith remaining under the care of a primary
care physician for preventable health maintenance.
Defendant maintains that throughout the handling of Plaintiff’s EAP, Ms. Scharff and Dr. Jones
relied on the reports issued by Dr. Henry in deciding whether to return Plaintiff to work; that Ms.
Scharff and Dr. Jones had no reason to doubt the information or the recommendations contained
in Dr. Henry’s reports; and that Plaintiff never contested any of Dr. Henry’s findings with
Defendant through his union or otherwise.
According to Plaintiff, he has never been diagnosed with a substance abuse problem. Nor
can he recall anyone telling him that he had a substance abuse problem. Plaintiff does not
consider himself to be an alcoholic and therefore, does not have a sobriety or anniversary date,
but claims that he was sober from the summer of 2006 through 2010. According to Plaintiff, he
has never abused alcohol or drugs.
There was never a time in Plaintiff’s adult life, including when he was going through
treatment, that he was unable to work. According to Plaintiff, there was nothing in his daily life
that he was prevented from doing due to his treatment for alcoholism. Plaintiff testified that
although he was unable to care for himself “financially” while going through treatment—due to
Defendant’s refusal to allow him to return to work—he could take care of himself on an
everyday basis in terms of getting up, showering, cooking, cleaning, and other self-care
activities. [127-4] at 74-75.
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In July 2008, Plaintiff was informed that he would need a sleep study as a result of his
diagnosis of sleep apnea. Upon completion of the six month period recommended by Dr. Henry,
Plaintiff was scheduled for a return to work examination on February 12, 2009.

After

completion of the return to work examination, Plaintiff was conditionally cleared to return to
work by the EAP and was referred to the Health and Medical Department for clearance. Plaintiff
completed the sleep study in May 2009 and was told at that time that he needed to submit two
weeks of data from the use of a CPAP machine. Plaintiff testified that his difficulty in obtaining
a CPAP machine “was the last holdup” on his return to work. [127-4] at 60.
On or about October 7, 2009, Plaintiff filed a charge of discrimination with the EEOC,
alleging:
I was hired by [Union Pacific] in or around June 1998. Since 2005, I have been
subjected to different terms and conditions of employment than my coworkers,
and have not been reinstated back to work.
I believe I have been discriminated against because of my regarded as disability,
in violation of Americans with Disabilities Act of 1990, as amended.
[135] at 10. According to Plaintiff, his “regarded as” disability is alcoholism.
Plaintiff testified at his October 7, 2015 deposition that he talked to an attorney in 2010
and “felt that [he] was being discriminated” against because he “was held out too long” from
returning to work. [135-1] at 52. Plaintiff could not recall whether anyone else (including any
physicians at Rush) had advised him that he had successfully completed treatment for alcoholism
years prior. Id. Plaintiff also submitted an affidavit, dated April 11, 2011, stating that “[i]t was
not until 2010 that I was advised I had successfully completed my treatment for alcoholism years
prior” and that “[i]n the fall of 2010, I was advised by a physician at Rush Hospital that my
continued treatment was unnecessary and Defendant’s refusal to allow me to return to work was
improper.” [135-5] at 1.
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Plaintiff eventually was able to obtain a CPAP machine and returned to work in July
2010.
According to Plaintiff, the EEOC responded to his charge on November 18, 2010,
concluding: “Based upon its investigation, the EEOC is unable to conclude that the information
obtained establishes violations of the statutes. This does not certify that the respondent is in
compliance with the statutes. No finding is made as to any other issues that might be construed
as having been raised by this charge.” [138] at 3. Defendant disputes this on the basis that the
notice is not authenticated.
On May 31, 2012, Plaintiff filed an Amended Complaint in this Court alleging that he
was discriminated against by Defendant based on a record of impairment (Count I) and being
regarded as having an impairment (Count II) in violation of the ADA. In both Count I and Count
II of his Amended Complaint, Plaintiff alleges that “Union Pacific refused to allow [Plaintiff] to
return to work in 2006 despite [Plaintiff’s] ability to perform his job.” [135] at 11.
II.

Legal Standard
Summary judgment is proper where “the movant 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). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by … citing to particular parts of materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). A genuine issue of
material fact exists if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party
seeking summary judgment has the burden of establishing the lack of any genuine issue of

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material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court “must construe
all facts and draw all reasonable inferences in the light most favorable to the nonmoving party.”
Majors v. Gen. Elec. Co., 714 F.3d 527, 532-33 (7th Cir. 2013) (citation omitted).
To avoid summary judgment, the nonmoving party must go beyond the pleadings and
“set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S.
at 250. Summary judgment is proper if the nonmoving party “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 646 (7th Cir.
2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the “mere existence
of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there
must be evidence on which the jury could reasonably find for the [non-movant].” Liberty Lobby,
477 U.S. at 252.
III.

Analysis
A.

Exhaustion of Administrative Remedies

A threshold issue before the Court on Defendant’s motion for summary judgment is
whether Plaintiff timely filed his charge with the EEOC, which is a prerequisite to filing an ADA
claim. In Illinois, in order for a plaintiff to file a suit under the ADA, the plaintiff must file a
charge with the EEOC within 300 days of when the alleged discrimination occurred. 42 U.S.C.
§§ 2000e-5(e)(1), 12117(a); see also Conley v. Vill. of Bedford Park, 215 F.3d 703, 710 (7th Cir.
2000); Cardenas v. First Midwest Bank, 114 F. Supp. 3d 585, 592 (N.D. Ill. 2015). This date of
injury is when the cause of action accrues—not when the plaintiff “‘determines that the injury

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was unlawful.’” Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001) (quoting
Thelen v. Marc’s Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995)); see also Anderson v. The
Foster Group, 521 F. Supp. 2d 758, 777 (N.D. Ill. 2007). “The requirement that a plaintiff
timely file an administrative charge with the EEOC serves two purposes: it promotes the prompt
and less costly resolution of the dispute by settlement or conciliation and ensures timely notice to
the employer of the grievance.” Porter v. New Age Servs. Corp., 463 F. App’x 582, 584 (7th Cir.
2012) (citing Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009)).
In this case, Defendant’s allegedly discriminatory act was its refusal to return Plaintiff to
work after he completed the Rush IOP program in Spring 2006. See [37] at 3-7 (Amended
Complaint). Plaintiff filed his EEOC charge in October 2009. Unless Plaintiff’s claim accrued
sometime later than Spring 2006, or the time for filing the EEOC charge was tolled, then his
EEOC charge was filed more than two years too late and his lawsuit is untimely.
Earlier in this action, the Court dismissed Plaintiff’s complaint as untimely, concluding
that neither the discovery rule nor equitable estoppel applied under the facts alleged by Plaintiff.
See [19]. The Seventh Circuit agreed, but concluded that the dismissal should have been without
prejudice to allow Plaintiff to file an amended complaint based on a “new chronology” that he
advanced in his response to Defendant’s motion to dismiss. See Smith v. Union Pacific R.R., 474
Fed. Appx. 478, 480 (7th Cir. 2012). In particular, Plaintiff asserted that “he discovered in 2009
that the company deceived him in 2006 into believing that it would return him to service after he
completed an additional treatment program,” and “[f]rom 2006 to 2010, the company required
him to remain in that program, while concealing medical records from him which showed that
additional treatment was not necessary.” Id. at 481. The Seventh Circuit concluded that,

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“[t]aking these assertions as true, Smith’s contentions under the discovery rule and equitable
estoppel are colorable, sufficient to pass the pleading stage.” Id.
Now that the case has proceeding to summary judgment—“the ‘put up or shut up’
moment in a lawsuit,’”—Plaintiff must respond to Defendant’s “properly-supported motion by
identifying specific, admissible evidence showing that there is a genuine dispute of material fact
for trial” concerning the application of either the discovery rule or equitable estoppel. Grant v.
Trustees of Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017) (quoting Harney v. Speedway
SuperAmerica LLC, 526 F.3d 1099, 1104 (7th Cir. 2008)). “‘The discovery rule starts the statute
of limitations running only when the plaintiff learns that he’s been injured, and by whom.’”
Johnson-Morris v. Santander Consumer USA, Inc., 194 F. Supp. 3d 757, 764 (N.D. Ill. 2016)
(quoting United States v. Norwood, 602 F.3d 830, 837 (7th Cir. 2010)). Importantly, it is the
date that plaintiff has discovered his injury, not the date that he “determines that the injury was
unlawful,” that matters for purposes of evaluating whether his EEOC charge was timely. Sharp,
236 F.3d at 372 (internal quotation marks and citation omitted). Equitable estoppel “‘comes into
play if the defendant takes active steps to prevent the plaintiff from suing in time.’” Rosado v.
Gonzalez, 832 F.3d 714, 716 (7th Cir. 2016) (quoting Shropshear v. Corp. Counsel of Chicago,
275 F.3d 593, 595 (7th Cir. 2001)). “Such a situation can occur if the defendant … ‘prevents a
plaintiff from obtaining information that he needs in order to be able to file a complaint that will
withstand dismissal.’” Easterling v. Thurmer, 880 F.3d 319, 324 (7th Cir. 2018) (quoting Jay E.
Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 385 (7th Cir. 2010)).
The Seventh Circuit’s prior opinion in this case outlines the evidence required for the
discovery rule or equitable estoppel to save Plaintiff’s claim. Plaintiff’s proof falls short in
multiple ways. First, Plaintiff does not identify any evidence that anyone at Defendant assured

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him that he would be allowed to “return … to service” after completing the Rush IOP program in
Spring 2006. Smith, 474 Fed. Appx. at 481. Nor can the Court find any statements in the
transcript of Plaintiff’s October 7, 2015 deposition that would support such an allegation. See
[135-1]. In his earlier affidavit, dated April 11, 2011, Plaintiff stated that he “believed [his]
treatment for alcoholism that began in 2006 was necessary and needed before [he] could return
to work as an engineer for Union Pacific,” and this was why he “continued [his] treatment for
nearly four years.” [135-5] at 1. But he does not state that anyone at Defendant made any
representations to him about when or on what conditions he could return to work. Instead, at the
time Plaintiff took a leave of absence and began treatment at the Rush IOP—following his
September 2005 DUI arrest—he had already been suspended for four months pending an
investigation for running a Metra train past a red flag without notifying men on the track.
Second, even if Defendant had assured Plaintiff that he could return to work after
completing the Rush IOP program, Plaintiff knew back in 2006 that he had completed the
program, because Houlihan told him so. See [135-1] at 28 (Plaintiff’s deposition). Therefore,
the undisputed facts in the record show that Plaintiff knew of his injury in 2006 but failed to file
a timely EEOC charge within 300 days.
Third, Plaintiff has no proof that Defendant withheld any “medical records from him
which showed that additional treatment was not necessary.” Smith, 474 Fed. Appx. at 481. The
only “record” that Plaintiff points to as proof of his ability to return to work without additional
treatment—the May 30, 2006 letter from Lynch to “whom it may concern”—does not, in fact,
say either that Plaintiff is able to return to work or that he requires no further treatment. [135-2]
at 1. Lynch simply verifies that Plaintiff has “successfully completed” Rush’s IOP program.
And he also states that “[a]t discharge” from the program, “it was agreed that [Plaintiff] will

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continue treatment in a Continued Care Group (CCG) at RBH, meeting once weekly, for a
period of six months to one year.” Id. (emphasis added); see also [135-3] at 43 (Lynch’s
deposition testimony that his letter “indicates that the discharge from IOP it was agreed that
[Plaintiff] will continue treatment in a continued care group”). Even if the letter did contain an
opinion that Plaintiff was ready to return to work, there is no evidence that anyone at Defendant
ever received the letter (which is addressed only “To Whom It May Concern”) or otherwise
became aware of it. Lynch could not recall if he ever provided the letter to Defendant. See
[135-3] at 42.
Apart from Lynch’s letter—which does not address Plaintiff’s fitness to return to work—
Plaintiff points to Lynch’s deposition testimony to the effect that he thought Plaintiff could
return to work after completing the IOP program. Lynch’s testimony on this topic is somewhat
muddled, see [135-3] at 58, but even if it were clear, there is no evidence that Lynch ever
communicated with Defendant about Plaintiff’s ability to return to work.

Instead, Lynch

testified that he could not recall if he ever had any contact with Scharf or Jones concerning
Plaintiff. [135-3] at 54.
The undisputed evidence further shows that Dr. Henry provided Defendant with a
fourteen-page assessment of Plaintiff’s fitness for duty, which concluded that Plaintiff was not
ready to return to work after completing Rush’s IOP program. According to Dr. Henry, Plaintiff
should enter a halfway house or three-quarters house, have at least one year of documented
abstinence from alcohol and other mood-altering substances, and have a repeated fitness for duty
examination before returning to his Locomotive Engineer position, which “at any point could
involve the safety of hundreds of citizens.” [135] at 5. Plaintiff claims that Dr. Henry has no
“objective clinical evidence to support his opinion” because he acknowledges that “all clinical

14

evidence would suggest that [Plaintiff] has recently been abstinent.” [134] at 5 (emphasis
added). But there is no inconsistency between Dr. Henry’s recognition of clinical evidence that
Plaintiff had “recently” been abstinent for some unspecified length of time, and his opinion that
Plaintiff should complete at least a four to six month period of documented abstinence before
returning to work as an Locomotive Engineer.
Finally, to the extent that Defendant concealed any records from Plaintiff, Plaintiff cannot
show that he relied on Defendant’s alleged deception when he failed to file a timely EEOC
charge. Plaintiff filed his EEOC charge in the Fall of 2009, yet claims that he did not become
aware of the information that allowed him to discover his claim until 2010 when he was
informed that he had successfully completed treatment in 2006. Plaintiff fails to address this
discrepancy, which the Court also pointed out in its earlier opinion dismissing Plaintiff’s original
complaint as untimely. See [19] at 7. Plaintiff’s deposition testimony indicates that the real
reason he concluded in 2010 that he had been discriminated against was because he “talked to an
attorney” and “realized [he] felt like [he] was held out too long.” ]134] at 6-7.
For these reasons, the Court concludes that, viewing the evidence in the light most
favorable to Plaintiff, no reasonable jury could find (1) that Plaintiff was unable to discover his
claim in 2006 when Defendant informed him that he could not return to work, or (2) that
Defendant took any active steps to prevent Plaintiff from suing in time. Defendant is therefore
entitled to summary judgment on Plaintiff’s ADA claim.
B.

Discrimination

Even if Plaintiff’s ADA claim were timely, which it is not, Defendant would be entitled
to summary judgment on the merits. “‘It is a well-settled rule that a party opposing a summary
judgment motion must inform the trial judge of the reasons, legal or factual, why summary

15

judgment should not be entered,’ and present [his] arguments to the Court before it enters final
judgment.” De v. City of Chicago, 912 F. Supp. 2d 709, 733 (N.D. Ill. 2012) (quoting Reklau v.
Merch. Nat’l Corp., 808 F.2d 628, 630 n.4 (7th Cir. 1986)). Plaintiff’s response to summary
judgment falls far short of this standard. After spending the first ten pages of his brief arguing
that his EEOC charge was timely, Plaintiff devotes less than a page and half to the substance of
his ADA claim. Plaintiff fails to explain what type of ADA claim he is pursuing or to identify its
elements, and ignores most of the arguments advanced by Union Pacific in support of summary
judgment.
In particular, Plaintiff has not come forward with evidence that Plaintiff is or was
disabled within the meaning of the ADA, which is required to succeed on a disparate treatment
claim under either the direct or indirect method. See Lloyd v. Swifty Transp., Inc., 552 F.3d 594,
601 (7th Cir. 2009) (outlining elements). “Merely having … a medical condition”—or being
perceived as having a medical condition—“is not enough” to be “disabled within the meaning of
the ADA.” Powers v. USF Holland, Inc., 667 F.3d 815, 819 (7th Cir. 2011). “Rather, to be
disabled within the meaning of the ADA, the plaintiff must have ‘(A) [a] physical or mental
impairment that substantially limits one or more of the major life activities of [the] individual;
(B) [a] record of such an impairment; or (C) [be] regarded as having such an impairment.’” Id.
(quoting 42 U.S.C. § 12102(2)).
In the half paragraph that Plaintiff devotes to this issue in his response brief, he identifies
two ways in which he should be considered disabled. First, Plaintiff argues that he was impaired
because was unable to “take care of himself financially[] during the period of time he was
wrongfully held off of work because of the continued treatment that [Defendant] needlessly
required him to work through.” [134] at 11. But this does not demonstrate that Plaintiff was

16

unable to support himself because of his disability—it shows that he was unable to support
himself because of Defendant’s allegedly discriminatory decision not to return him to work in
2016.1 And Plaintiff testified there was nothing in his daily life that he was prevented from
doing due to his treatment for alcoholism.
Second, Plaintiff appears to be arguing that Defendant regarded him as having a
disability, as evidenced by the fact that it required him to undergo additional treatment before
returning to work as a Locomotive Engineer. But the perceived inability to perform a single job
is insufficient to show disability under the ADA. “To be substantially limited in the major life
activity of working means that a claimant is ‘significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs in various classes as compared to the average
person having comparable training, skills and abilities.’” Powers, 667 F.3d at 820 (quoting 29
C.F.R. § 1630.2(j)(3)(I)). “A class of jobs includes ‘the number and types of jobs utilizing
similar training, knowledge, skills or abilities, within [the employee’s] geographical area.’” Id.
(quoting 29 C.F.R. § 1630.2(j)(3)(ii)(B)). “A broad range of jobs includes ‘the number and types
of other jobs not utilizing similar training, knowledge, skills or abilities within that geographical
area.’” Id. (quoting 29 C.F.R. § 1630.2(j)(3)(ii)(C)). Plaintiff does not acknowledge this legal
standard or make any attempt to show that Defendant regarded him as being unable to perform a
class of jobs or a broad range of jobs in various classes. Indeed, the only evidence in the record
going to this point is Plaintiff’s testimony that he was able to and did, in fact, work during his
leave of absence from Defendant.
To the extent that Plaintiff is relying on the indirect method of proof originally developed
in the Title VII context by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Plaintiff
also cannot establish two additional essential elements of his prima facie case: that he was
1

Even while Plaintiff was in treatment in 2007, he was working nearly full-time at a collection agency.

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meeting his employer’s legitimate expectations, or that similarly situated employees without a
disability were treated more favorably. See Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 685
(7th Cir. 2014). The undisputed evidence shows that Plaintiff was not meeting Defendant’s
legitimate expectations when Defendant refused to return him to work. Plaintiff was suspended
from service for an admitted Form B violation and under investigation, and he had just reported a
second DUI to the company.
As to similarly situated employees, Plaintiff’s only argument is that Plaintiff “testified
that while he knew other engineers who had been through the [EAP], none of those engineers
were required to see Dr. Henry as Mr. Smith was.” [134] at 11. But Plaintiff never identifies
those engineers or provides any information that would be necessary to determine if they are
“directly comparable to [him] in all material respects”—such as their performance histories and
any misconduct that resulted in their being placed in the EAP. Williams v. Office of Chief Judge
of Cook Cnty. Ill., 839 F.3d 617, 626 (7th Cir. 2016); see also Gates v. Caterpillar, Inc., 513 F.3d
680, 690 (7th Cir. 2008) (explaining that typically, a plaintiff needs to show that the other
employee “dealt with the same supervisor, [was] subject to the same standards, and had engaged
in similar conduct without such differentiating or mitigating circumstances as would distinguish
[his] conduct or the employer’s treatment of [him]”); Nichols v. S. Ill. Univ.-Edwardsville, 510
F.3d 772, 786 (7th Cir. 2007) (requiring plaintiffs to identify an employee who had engaged in
similar misconduct in order to satisfy the similarly situated requirement). For example, Plaintiff
has not pointed to any similarly situated engineers who had the alcohol- or sleep-related
problems that he had—both of which could impair his ability to operate a locomotive—and by
extension, create a risk to public safety.

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In sum, Plaintiff fails to show that he is or was disabled under the ADA, that he was
meeting his employer’s legitimate expectations, or that similarly situated employees without a
disability were treated more favorable. Defendant is therefore entitled to summary judgment on
the merits of Plaintiff’s ADA claim.
IV.

Conclusion
For these reasons, the Court grants Defendant’s motion for summary judgment [125].

This order resolves all remaining claims in the case. Judgment will be entered in favor of
Defendant and against Plaintiff.

Dated: March 13, 2018

_________________________________
Robert M. Dow, Jr.
United States District Judge

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