Kotaska v. Federal Express

Filing 42

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 8/21/2018. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JANET KOTASKA,
Plaintiff,
v.
FEDERAL EXPRESS CORPORATION,
Defendant.

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Case No. 16-cv-9321
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff Janet Kotaska brings suit against her former employer, Defendant Federal Express
Corporation, for allegedly discriminating against her on the basis of her age, gender, and disability,
and retaliating against her based on her disability discrimination complaints and her filing of a
worker’s compensation claim, in violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.;
Title VII, 42 U.S.C. § 2000e; and state law. Currently before the Court is Defendant’s motion for
summary judgment [22] and Plaintiff’s motion to strike [35].

For the following reasons,

Defendant’s motion [22] for summary judgment is granted, and Plaintiff’s motion [35] to strike is
denied. The Court will issue final judgment and close the case.
I.

Background
Defendant Federal Express Corporation (“Defendant”) is an express transportation and

delivery company. Plaintiff Janet Kotaska (“Plaintiff”), a female currently in her sixties, worked
for Defendant as a courier and handler from 1998 to 2013 at Defendant’s Cary, Illinois station (the
“UGN Station”). Plaintiff also worked for Defendant as a handler at the UGN Station for
approximately three weeks in April 2015 before she was involuntarily placed on a personal

medical leave of absence by Defendant. Defendant contends that Plaintiff was placed on this leave
of absence because she had certain permanent restrictions on her lifting abilities at the time that
rendered her unable to perform essential functions of the handler position. Specifically, Plaintiff’s
permanent restrictions in 2015 limited her lifting ability as follows: “[F]requent lifting of 75
pounds from the floor to waist, 15 pounds frequently from the waist to shoulder and 30 pounds on
occasional basis. She should limit overhead use to only limited frequency and only up to 5 pounds.
She could lift up to 15 pounds overhead with left hand assist.” [28, Ex. 17 to Ex. A.] The written
job description for the handler position requires the ability to lift 75 pounds. [28, Ex. 14 to Ex.
A.]
Plaintiff’s employment with Defendant was terminated at the end of her 90-day leave
period in July 2015, when Plaintiff had not obtained another position with the company before her
leave period expired. Plaintiff thereafter filed this complaint against Defendant for disability, age,
and gender discrimination, and for retaliation, based on Defendant’s actions in 2015 surrounding
these events.
A.

Plaintiff’s Motion to Strike

Plaintiff moves to strike an argument in Defendant’s reply brief, and certain of Defendant’s
objections to Plaintiff’s Local Rule 56.1 statement that rely on this argument, because she contends
that Defendant waived this argument by not including it in its opening summary judgment brief.
[See 35.] Because of the shaping role of Local Rule 56.1 fact statements in resolving motions for
summary judgment, the Court will first address Plaintiff’s motion to strike.
After briefing on Defendant’s summary judgment motion was completed, Plaintiff filed
her motion to strike. In this motion, Plaintiff claims that Defendant’s reply brief argues for the
first time that its alleged policy that handlers must be able to lift 75 pounds over the waist and

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overhead was immaterial to Plaintiff’s termination in 2015. [35, at 1–2.] According to Plaintiff,
the requirement that handlers be able to lift 75 pounds is limited to lifting 75 pounds from floor to
waist, which she could do, and there is no requirement that handlers be able to lift packages
weighing 75 pounds above their waists. Plaintiff argues that Defendant’s statement in its reply
that whether or not such a policy exists is immaterial to the summary judgment motion “is a newly
stated argument to which Plaintiff never had an opportunity to respond” because Plaintiff has been
proceeding in her opposition by arguing that she was fired as a result of this alleged policy.
Therefore, Plaintiff argues, she will be prejudiced if the Court considers the argument itself and
any of Defendant’s Local Rule 56.1 statement objections that rely on this argument. [Id., at 2.]
Plaintiff’s motion to strike is denied. Defendant’s opening brief very clearly argues that
Plaintiff’s entire suite of physician-imposed lifting restrictions, including her restrictions on lifting
certain weights from her waist to her shoulder and overhead, are material to the issues in this case,
including Plaintiff’s ability to perform the essential functions of the handler position and the
decision to remove Plaintiff from that position in April 2015. See, e.g., [22-1, at 1, 5] (discussing
Plaintiff’s over-the-waist and overhead lifting restrictions). Defendant also addressed this issue
regarding the overhead lifting requirements of the handler position in its Local Rule 56.1
statement, and Plaintiff took the opportunity to address it in her response to this statement. See
[22-3, ¶ 52] (“The CHCMP committee considered not only Kotaska’s inability to lift 75 pounds
above her waist, but their decision was also based on her inability to lift more than 15 pounds
frequently above her waist and her overhead lifting restriction.”); [28-1, ¶ 52] (“Admit that this
was Ramos’ testimony in her deposition. Deny that the CHCMP committee considered any
restrictions other than Plaintiff’s restriction on lifting 75 pounds over her waist and overhead.”);
see also [22-3, ¶¶ 24–36] (Defendant’s statements of fact regarding the essential functions of the

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handler position, including requirements to lift packages over the waist and overhead as parts of
those functions). The Court will further address the actual merits of Defendant’s argument below,
but for purposes of Plaintiff’s motion, the Court discerns no basis to strike any of Defendant’s
arguments because of waiver. Defendant’s main argument on summary judgment is that Plaintiff
cannot perform the essential functions of the handler position because of her lifting restrictions:
Plaintiff had the opportunity to respond to this argument and did so. [See 28, at 11–15.] Plaintiff’s
focus on specific aspects of her own lifting restrictions and the essential functions of the handler
position over other aspects of these two issues in her opposition does not mean that Defendant
“implicitly assert[ed]” something new in its reply by re-emphasizing its main argument.
Therefore, Plaintiff’s motion to strike [35] is denied.
B.

Factual Background

The Court takes the relevant facts from the parties’ Local Rule 56.1 statements of
undisputed material facts and supporting exhibits: (1) Defendant’s Local Rule 56.1 Statement of
Undisputed Material Facts [22-3], (2) Plaintiff’s Response to Defendant’s Statement of
Undisputed Material Facts [28-1], (3) Plaintiff’s Statement of Undisputed Material Facts [28-2],
and (4) Defendant’s Response to Plaintiff’s Additional Statement of Undisputed Material Facts
[34-1]. The facts are undisputed, except where a dispute is noted, taking into account the
objections that both parties have made in their responses. The Court views the record in the light
most favorable to the nonmoving party—here, Plaintiff—and construes all facts in her favor. Ellis
v. DHL Express, Inc., 633 F.3d 522, 525 (7th Cir. 2011).
1.

Defendant’s Employment-Related Policies

Two sets of policies maintained by Defendant are relevant to Plaintiff’s claims:
Defendant’s disability accommodation request policy and Defendant’s medical leave of absence

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policy. Plaintiff received a copy of and had access to all of Defendant’s employment-related
policies while working for the company. [22-3, ¶ 8.]
Defendant’s Human Capital Management Program (“HCMP”) department manages
employee absence programs and requests for disability-related accommodations. [Id., ¶ 4.] The
process for requesting disability accommodations involves multiple steps. First, the employee is
typically asked to complete an accommodation request form describing the accommodation
needed. Second, a local HCMP committee consisting of the employee’s HCMP Advisor, the
employee’s Human Resources Advisor, a safety representative, and a management representative
meet to discuss whether the employee can be accommodated in his or her current position. The
local committee then makes a recommendation that is sent to the Corporate HCMP Committee.
The Corporate HCMP Committee makes the final decision as to whether or not an accommodation
can be made for an employee. [Id., ¶ 5.]
Defendant also maintains a Medical Leave of Absence policy that provides employees who
have less than 90 days of continuous service with a maximum leave duration of 90 calendar days.
[Id., ¶ 6.] This policy also provides that when an employee is released to return from this leave
period, but is unable to perform the essential functions of his or her position with or without a
reasonable accommodation at that time, the employee may submit unlimited job change
applications for 90 calendar days and will receive preferential placement for lateral or lower level
positions which he or she is qualified to perform with or without an accommodation. If no position
is offered and accepted after 90 days, the employee is terminated in accordance with this medical
leave policy. [Id., ¶ 7.]
2.

Plaintiff’s First Period of Employment by Defendant

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Plaintiff worked for Defendant from 1998 to 2013 at the UGN Station, first as a courier
handler and then as a courier. In 2011, Plaintiff suffered an on-the-job injury to her shoulder for
which she sought and received worker’s compensation benefits. Plaintiff made no other claim for
worker’s compensation benefits while employed by Defendant. [22-3, ¶¶ 9–12.]
Following this injury, in March 2013, Plaintiff’s treating physician imposed permanent
restrictions on her lifting abilities. Specifically, Plaintiff was limited to frequent lifting of 25
pounds from floor to waist, with occasional lifting of up to 60 pounds from floor to waist; 15
pounds frequently from waist to shoulder, with lifting 30 pounds from waist to shoulder on an
occasional basis; and frequent lifting of up to 5 pounds overhead, with occasional lifting of up to
15 pounds overhead with left hand assist. [Id., ¶ 13.] Plaintiff informed Defendant of these
restrictions on her lifting abilities. [Id.]
The courier position that Plaintiff held at that time required the ability to lift 75 pounds
unassisted and, with these permanent lifting restrictions, Plaintiff did not meet that requirement.
[Id., ¶ 14.] Plaintiff thereafter went on medical leave and had 90 days to secure another position
with Defendant that she could perform either with or without a reasonable accommodation,
pursuant to Defendant’s policy. [Id., ¶ 15; 28, Ex. 2 to Ex. A.] Plaintiff applied for a handler
position at the UGN Station during this period and requested an accommodation that she only lift
freight within her weight restrictions. On August 14, 2013, Jennifer Ramos (“Ramos”), a senior
HCMP Manager, sent Plaintiff a letter denying Plaintiff’s request because her lifting restrictions
could not be accommodated in that position: “The Handler position at this location is physically
demanding and requires repetitive lifting of weight up to 75 lbs. unassisted. Therefore, per
management, the station is unable to accommodate your request.” [28, Ex. 6 to Ex. A.] In
accordance with Defendant’s medical leave of absence policy, Plaintiff was terminated by

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Defendant on August 16, 2013 after she failed to secure another position that she could perform
with or without a reasonable accommodation, given these lifting restrictions. [22-3, ¶ 15.]
Plaintiff contends that she complained about disability discrimination after her 2013
termination by (1) using Defendant’s internal appeals process known as the “GFT” process, (2)
speaking to Ramos and HCMP Advisor Todd Bell, and (3) sending a letter to someone at
Defendant, although Plaintiff cannot recall the name of the person to whom she sent the letter.
[22-3, ¶¶ 68, 70.] Defendant has an internal EEO complaint procedure for employees to use in
reporting allegations of discrimination to management, and this procedure is available in
Defendant’s employee handbook and on Defendant’s intranet. [Id., ¶¶ 2–3.] Plaintiff did not
utilize this internal EEO complaint procedure at any time to make a discrimination complaint,
however. [Id., ¶ 72.]
3.

Plaintiff’s New Lifting Restrictions and Re-Hire in 2015

After Plaintiff’s first period of employment with Defendant ended in her termination,
Plaintiff continued to apply for jobs both with Defendant and with other companies. [28-2, ¶ 1.]
In 2014, Plaintiff’s physician updated her permanent lifting restrictions. These new restrictions
read:
With regards to work, she is cleared for light duty activity. I believe that we could,
in fact, increase some of her weight restrictions. At this point permanent
restrictions would include frequent lifting of 75 pounds from the floor to waist, 15
pounds frequently from the waist to shoulder and 30 pounds on occasional basis.
She should limit overhead use to only limited frequency and only up to 5 pounds.
She could lift up to 15 pounds overhead with left hand assist.
[28, Ex. 17 to Ex. A.]
In March 2015, Plaintiff was re-hired as a handler at the UGN Station by Jennifer Charles
(“Charles”). Charles was the operations manager at the UGN Station and Plaintiff’s former
supervisor, and she knew Plaintiff to be a good employee. Charles was also aware of Plaintiff’s
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previous lifting restrictions from 2013. [28-2, ¶ 4; 22, Ex. F, ¶ 2.] Plaintiff was re-hired after she
originally filled out an application for a UGN Station courier position, and Charles subsequently
contacted her about a handler position at that station. [22-3, ¶¶ 4, 16; 28, Ex. A, 82:20-84:3; 282, ¶ 3.]
Plaintiff and Charles met in March 2015. [34-1, ¶ 5; 28, Ex. 1 to Ex. C.] At this meeting,
Charles urged Plaintiff to take the job as a handler at the UGN Station. [22-3, ¶ 23; 28-2, ¶ 5.]
Plaintiff testified that this meeting was “off the books,” according to Charles. [28, Ex. A, 98:13–
19.] Plaintiff does not specify what “off the books” means in this context. Plaintiff did receive an
offer letter from Charles on Defendant’s letterhead, indicating that Plaintiff was offered and
accepted the position of “Part-Time Handler (Non-DOT) PT SPLIT SHIFT” at the UGN Station
on March 11, 2015. [28, Ex. 1 to Ex. C.] The offer letter notes that the job offer is “contingent
upon successful completion of the FedEx Express hiring process.” [Id.]
As part of this hiring process, Plaintiff completed a handler application. [28, Ex. 13 to Ex.
A.] This application included the following question: “This job requires repetitive lifting and
lowering of packages that may weigh up to 75 pounds in a fast-paced environment. To perform
the job, you must be able to bend, stoop, stand and walk to sort, load and unload packages in an
efficient manner. Can you perform these tasks with or without reasonable accommodation?” [Id.]
Plaintiff answered yes and asserts that this answer was truthful, given her revised lifting restrictions
that allowed her to lift 75 pounds up to her waist.1 [28-1, ¶ 18.]

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At her deposition, Plaintiff acknowledged filling out this handler application. In her Local Rule 56.1
statement, however, Plaintiff notes that this application does not contain her signature and argues that it is
not legally binding. [28-2, ¶ 6.] Defendant disputes this by pointing to evidence that Plaintiff at her
deposition also acknowledged signing the contract. [34-1, ¶ 6.] The Court need not consider this disputed
issue because it is ultimately immaterial to resolution of Defendant’s summary judgment motion, but the
Court does note that Plaintiff specifically admits that she filled out an application for a handler position that
contained this question and she responded to it by answering “Yes.” [28-1, ¶ 18.]

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As a result of this hiring process, Charles hired Plaintiff as a part-time “split-shift” handler
at the UGN Station effective April 5, 2015, with a start date of April 6, 2015. [28, Ex. 1 to Ex. C.]
As a “split shift” worker, Plaintiff worked a couple of hours in the morning and then returned to
work a couple of hours in the evening. [22-3, ¶¶ 21–22.]
4.

The Requirements of the Handler Position

The primary job of a handler at the UGN Station is to lift and move packages. [22-3, ¶ 24.]
According to the written description of this position, an essential duty of the handler is to
“load/unload aircraft containers and company vehicles in a safe and efficient manner.” [28, Ex.
14 to Ex. A.] This responsibility varies slightly between the morning and the evening parts of a
handler’s split shift. In the morning, the handler is responsible for unloading packages from large
metal containers referred to variously as AMJs, ULDs, or cans. These cans can be eight feet tall
and eight feet deep and may contain packages stacked as high as 7.5 or 8 feet. In the evening, the
handler is responsible for unloading any packages picked up by couriers during the day from
couriers’ vehicles and loading those packages back into the cans for transport to the airport. [223, ¶¶ 25–27.] These courier vehicles can have up to three shelves running along the interior of
each side, with the top shelf sitting roughly 4.5 feet above the floor of the vehicle. [Id., ¶ 28.]
Plaintiff was the only handler employed at the UGN Station in April 2015 to perform this
loading/unloading function, although Plaintiff notes that couriers load their own trucks during the
morning shift and may assist handlers during the evening shift as necessary. [Id., ¶ 36; 28-1, ¶ 36.]
The written description of the handler position describes the lifting requirements for this
position as follows: “Able to lift 75 lbs. Able to maneuver packages of any weight above 75 lbs.
with appropriate equipment and/or assistance from another person.” [22-3, ¶ 31; 28, Ex. 14 to Ex.
A.] This written description does not further explain the 75-pound lifting requirement. According

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to Plaintiff, however, in practice this requirement for handlers is limited to the ability to lift 75
pounds from floor to waist. [28-2, ¶¶ 12–13a.] Plaintiff testified that she was told by Charles that
this was the case. [28, Ex. A, 101:1–102:7.] Other employees also testified that a handler at the
UGN Station would not need to be able to lift a 75-pound package over her head. Phil Hutchinson
(“Hutchinson”) and Laurie Mroz (“Mroz”), both couriers and former handlers at the UGN Station,
testified that they had never heard of such a requirement. [28, Ex. G, 30:17–31:5; 28, Ex. B, 17:2–
7.]
Handlers at the UGN Station do have to lift packages over their waists and overhead as
part of their loading and unloading duties, however. These handlers must unload approximately
1,000 packages per hour in the morning and load between 400–500 packages per hour in the
evenings. [22-3, ¶ 35.] Handlers must unload and load these packages at a fast pace in the morning
because there is only a limited amount of time between when the cans arrive at the station and
when the delivery vehicles must leave to meet Defendant’s delivery commitments to its customers.
[Id., ¶ 34.] Mroz, who has worked as a handler and a courier for a total of 27 years, estimated in
her deposition that handlers have 50 minutes to unload packages in the morning. [28, Ex. B, 36:6–
7.] Similarly, there is only a limited amount of time in the evenings for handlers to reload the cans
before the trailers carrying the cans must leave to deliver packages to the airport. [22-3, ¶ 34.]
The average weight of packages traveling through the UGN Station in 2015 was approximately 15
pounds, but there is no way to predict the size or shape of the packages that need to be moved
within the UGN station each day as that station accepts packages weighing up to 150 pounds. [Id.,
¶¶ 32–33.]
According to Defendant, given the height of the cans and the height of the shelves in
couriers’ vehicles, these fast-paced loading and unloading tasks require handlers to frequently lift

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and maneuver packages above their waist and overhead. [22-3, ¶ 30.] Peter Brush (“Brush”), a
senior manager who worked for Defendant in 2015, testified at his deposition that a handler of
Plaintiff’s height2 would need to lift packages (1) above her waist 50 percent of the time to load
or unload cans, (2) above her waist 33 percent of the time to load or unload trucks, and (3) above
her head 20 to 33 percent of the time when loading or unloading trucks. [28, Ex. D, 106:5–107:10.]
Mroz testified that when unloading cans, she would have to reach overhead to reach packages
weighing 5 or 15 pounds on a daily basis. [28, Ex. B, 42:22–46:12.] Mroz also testified that when
unloading cans with poorly stacked packages, the packages would sometimes fall so that she would
not have to reach up to unload them; or, if packages were stacked well, handlers could pull them
out from shoulder level without having to reach overhead. [28, Ex. B, 47:1–14.] In her deposition,
Plaintiff agreed that as a handler she “would have to be able to lift above [her] head to unload some
of those trucks” and that she was required to lift some packages from her waist to her shoulder as
a handler. [28, Ex. A, 102:9-21, 105:16-106:10.] Plaintiff also testified that as a handler she did
“[n]ot normally” have to lift packages over her head or to her shoulder level. [Id., 36:1–7.]
Plaintiff testified that, at her meeting with Charles in March 2015 before she was re-hired
as a handler, Charles made certain representations about what Plaintiff’s specific position as a
handler would look like. Specifically, Plaintiff testified that Charles told her that she would only
be working in the handler position for three weeks, after which Charles would get Plaintiff into a
courier position that Plaintiff truly wanted and had originally applied for. [28-2, ¶ 5; 28, Ex. A,
84:7–19.] Plaintiff also testified, however, that couriers have the same lifting requirements as
handlers. [28, Ex. A, 134:11–19.] Plaintiff further testified that Charles told her that she would
only have to offload trucks as part of her duties as a handler at the UGN Station. [28-2, ¶ 5; 28,
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Plaintiff is five feet two inches tall. [22-3, ¶ 29.]

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Ex. A, 99:17–24.] Charles denies telling Plaintiff that she would only have to work as a handler
for three weeks. [34-1, ¶ 5; 22, Ex. H, 74:16–75:10.]
5.

Plaintiff’s Employment as a Handler at the UGN Station in April 2015

Plaintiff began work as a handler at the UGN Station on April 6, 2015, and she continued
in this position until she was placed on medical leave on April 24, 2015. During this period of
employment, Plaintiff was not given any accommodation for her lifting restrictions. [28 (Kotaska
Decl.), ¶ 4.] Plaintiff also did not complain about being in pain or about being unable to handle
her workload in those three weeks. [28-2, ¶ 15.] Other employees at the UGN Station testified
that Plaintiff did not appear to have any trouble with her work as a handler, including Charles,
Brush, Hutchinson, and Mroz. [Id., ¶¶ 19–22.] Ramos similarly heard no complaints about
Plaintiff’s performance during that three-week period. [Id., ¶ 7.] One courier, Jerrie Hanus
Harvey, did testify about an incident when Plaintiff had issues with lifting packages. Specifically,
Harvey testified that while she worked with Plaintiff, Plaintiff refused to assist her with a large
package because Plaintiff “couldn’t pick it up.” [28, Ex. H, 16:10–23.] Harvey testified that she
reported this incident to Charles. [Id., 21:8–11.] Charles testified about this conversation as well,
indicating that she reported it to her manager, Brush. [28, Ex. C, 123:18–124:19.] However,
Plaintiff denies that she ever complained about being in pain or about lifting while she worked as
a handler in 2015. [28-2, ¶ 15.]
Within a week of Plaintiff’s start date, Bruce Wibright (“Wibright”), a Human Resources
Advisor, visited the UGN Station and learned that Plaintiff had been re-hired. [22-3, ¶ 37.]
Wibright knew Plaintiff from her previous period of employment and was therefore aware of her
2013 lifting restrictions. Wibright advised Bradley Fowler (“Fowler”), Plaintiff’s HCMP Advisor,
of Plaintiff’s re-hire and her previous lifting restrictions from 2013. [Id., ¶ 38.]

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On April 13, 2015, after speaking to Wibright, Fowler sent an e-mail to Charles and Brush
regarding Plaintiff. [28, Ex. 1 to Ex. F.] Fowler noted that Plaintiff had been terminated in 2013
with a conditional status for rehire and described her 2013 lifting restrictions. [28-2, ¶¶ 25–26.]
He questioned whether any new medical documentation had been provided for Plaintiff’s re-hire
and advised Plaintiff’s management group to temporarily accommodate Plaintiff within her 2013
lifting restrictions while they investigated any updates to her permanent restrictions as of April
2015. [22-3, ¶ 39; 28-2, ¶ 10.]
On April 20, 2015, Fowler prepared a written memo to Plaintiff requesting that she provide
current medical documentation addressing the status of her lifting restrictions. [22-3, ¶ 40; 28, Ex.
7 to Ex. F.] In the letter, Fowler described Plaintiff’s 2013 lifting restrictions and noted the handler
position’s requirement to be able to lift 75 pounds “unassisted.” [28-2, ¶ 27; 28, Ex. 7 to Ex. F.]
The letter also states that Plaintiff notified management that she was having difficulty performing
the lifting requirements of the position. [28, Ex. 7 to Ex. F.] However, in a phone call with Fowler
the next day, Plaintiff denied that she notified management of any pain or lifting issues. [28-2,
¶¶ 27–28.] During that phone call, Plaintiff also stated that she had been medically cleared to lift
75 pounds from floor to waist, and Fowler asked for supporting documentation. [22-3, ¶ 41; 282, ¶ 28; 28, Ex. J.] Plaintiff then provided a doctor’s note dated February 12, 2014 that listed her
revised lifting restrictions. [22-3, ¶ 42.] The exact date on which Plaintiff provided this doctor’s
note to Fowler is unclear from the record, although on April 22, 2015, Brush wrote an e-mail to
Fowler with the subject line “Update: Jennifer [sic] Kotaska #331812 UGNA.” [28, Ex. K.] The
e-mail stated: “I’m guessing that there are only 2 outcomes? 1. She is released to full duty[.] 2.
She is terminated for not disclosing her physical limitations during the application process[.]” [Id.]

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On April 23, 2015, Fowler wrote an e-mail to Brush notifying him that Plaintiff would be
placed on a personal leave of absence effective April 24. Fowler also requested that Brush provide
him with an assessment of the handler position and Plaintiff’s “ability to perform this job in regard
to her responsibilities, job duties, expectations, and any other pertinent information.” [28-2, ¶ 30;
28, Ex. 27 to Ex. D.]
On that same date, Fowler sent Plaintiff a letter notifying her that she was being placed on
medical leave:
A review of your medical status indicates you have reached maximum medical
improvement and have been released to return to work with permanent restrictions
of frequent lifting of 75 pounds from floor to waist, 15 pounds frequently from the
waist to should[er] and 30 pounds on occasional basis. She should limit overhead
use to only limited frequency and only up to 5 pounds. She could lift up to 15
pounds overhead with left hand assist. These restrictions limit your ability to
perform the essential functions of your position at 60013/UGNA/IL/0000 as a
Handler (Non-DOT). Please contact me if you wish to request an accommodation
for your current position.
[28, Ex. 18 to Ex. A.] This letter also advised Plaintiff that she had 90 days in which to seek a
new position at the company for which she met the minimum qualifications and could perform
either with or without an accommodation in the event she could not be accommodated in her
current position. [Id.] Before being placed on leave in this manner, Plaintiff did not know of any
concerns about her working in the handler position at the UGN Station. [28 (Kotaska Decl.), ¶ 8.]
Plaintiff did not initiate or request this leave of absence. [28-1, ¶ 7.]
On April 24, 2015, Brush responded to Fowler’s e-mail with his assessment of the handler
position and Plaintiff’s ability to work in that position considering her lifting restrictions. Brush
stated that “it is not possible for someone with the noted physical restrictions to perform the PT
Handler duties at our [UGN Station]. A basic job function is to load AMJ containers, which are

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up to 8’ in height. A PT Handler needs to be able to lift 75 lbs. unassisted over their waist in order
to properly and safely build t-stacked walls.” [28, Ex. 32 to Ex. D.]
6.

Plaintiff’s Leave of Absence and Termination

While on leave of absence, Plaintiff did not complete and return an accommodation request
form to Defendant. [22-3, ¶ 45.] According to Plaintiff, she was never given an accommodation
form to fill out. [34-1, ¶ 9.] Plaintiff also testified that she could not recall whether she requested
an accommodation for her lifting restrictions in 2015. [28-1, ¶ 65.] Nevertheless, Defendant
evaluated whether Plaintiff’s lifting restrictions could be accommodated in the handler position.
[22-3, ¶ 46.]
On April 30, 2015, following Defendant’s accommodation request procedure, the local
HCMP Committee consisting of Fowler, Wibright, Safety Specialist Brian Molenda and Senior
Manager Tom Hucher considered whether Plaintiff’s lifting restrictions could be accommodated
in the handler position. [22-3, ¶ 47.] Brush’s assessment of the Handler position was reviewed
by the local HCMP committee. [28, Ex. 19 to Ex. F.] The local HCMP committee recommended
that Plaintiff “not be permitted to work as a Handler due to her permanent restrictions and
limitations” and that she remain on a 90-day leave of absence so that she could look for another
position. [22-3, ¶ 49.]
The Corporate Human Capital Management (“CHCM”) Committee then met on May 4,
2015 to determine whether Plaintiff’s permanent restrictions could be accommodated in the
position of Handler at the UGN Station. [28, Ex. 5 to Ex. E.] In a May 12, 2015 letter to Plaintiff,
Ramos (who had previously denied Plaintiff’s 2013 accommodation request) advised Plaintiff that
the CHCM Committee had determined that her restrictions could not be accommodated in the
handler position:

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One of the basic job functions of this position is to load AMJ containers, which are
up to 8’ in height. Lifting packages over the waist and overhead for weights up to
75 lbs. unassisted is required in order to properly and safely build T-stacked walls.
You are also required to load ULDs, which requires lifting up to than [sic] 75 lbs.
above the waist and overhead. Your restrictions prevent you from being able to
load ULDs.
After careful review, the CHCMC denied an accommodation to waive job
requirements associated with the Handler position at the UGN location. Your
restrictions prevent your ability to perform the essential functions of this position.
[28, Ex. 5 to Ex. E.]
At her deposition, Ramos testified that in addition to considering Plaintiff’s inability to lift
75 pounds above her waist, the CHCM Committee also considered Plaintiff’s inability to lift more
than 15 pounds frequently above her waist and her overhead lifting restriction in assessing whether
her restrictions could be accommodated in the handler position. [22-3, ¶ 52.] Plaintiff disputes
that the CHCM Committee actually considered any of Plaintiff’s restrictions other than the
restriction on lifting 75 pounds over her waist. [28-1, ¶ 52; 28, Ex. 5 to Ex. E.]
While Plaintiff was on leave of absence, she was entitled to apply for other positions within
the company and receive preferential placement for lateral or lower level positions for which she
was qualified. During her 90-day leave period, Plaintiff applied for three other positions with
Defendant using Defendant’s job application system for internal applicants. [22-3, ¶¶ 54–55.] All
of these positions were courier positions.

Fowler also provided Plaintiff with information

regarding Defendant’s typing test that could open up the types of jobs that Plaintiff could apply
for, but there is no evidence that Plaintiff ever took the test or applied for other types of jobs. [223, ¶ 53.]
Plaintiff first applied for a full-time courier/swing driver position under Charles at the UGN
Station. [Id., ¶ 56.] Plaintiff did not receive placement preference for this position because moving
from a handler position to a courier position is considered a promotion. [Id., ¶ 58.] Plaintiff was
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not the successful candidate for this position. According to Defendant, this was based on the fact
that she had a lower “CEV” score than other candidates for the position (an objective system that
assigns employees credit based on months of continuous employment with the company), and
because she did not receive placement preference for the position. [Id., ¶ 57.] Plaintiff, however,
was told by Fowler told her that she would not get any position that she applied for because there
was a “red flag” on her. [28-1, ¶ 57.] The position was awarded to Jennifer Orr, a 42-year-old
female. [22-3, ¶ 59.]
Plaintiff then applied for a second courier position at the UGN Station. Plaintiff was not
successful in obtaining this courier position. According to Defendant, Plaintiff withdrew herself
from consideration for this position. [22-3, ¶ 60.] Plaintiff disputes this and states that she never
withdrew any application for a position that she sought with Defendant. [28 (Kotaska Decl.), ¶ 6.]
Finally, Plaintiff applied for a courier position at Defendant’s Waukegan, Illinois station.
[22-3, ¶ 61.] Plaintiff was not the successful candidate for this position, and it was awarded to
Traci Lloyd, a 44-year-old female. [22-3, ¶¶ 61–63.] Defendant states that she was unsuccessful
because she had a lower CEV score than other applicants and because she did not receive
preferential placement for the position. [22-3, ¶ 62.] Plaintiff again disputes this by pointing to
Fowler’s comment that she had a “red flag” that prevented her from getting other positions with
the company. [28-1, ¶ 62.]
On July 23, 2015, after Plaintiff exhausted her available leave time and failed to secure a
position she could perform the essential functions of, either with or without an accommodation,
Plaintiff’s employment with Defendant was terminated. [22-3, ¶ 64.]
C.

Procedural History

17

Plaintiff filed her complaint against Defendant in September 2016. [See 1.] In her
complaint, Plaintiff brings claims against Defendant for discrimination on the basis of age in
violation of the ADEA (Count I); discrimination on the basis of gender in violation of Title VII
(Count II); discrimination and retaliation in violation of the ADA (Count III); and retaliatory
termination in violation of state law (Count IV). [Id.]

Defendant has moved for summary

judgment on all of Plaintiff’s claims. [See 22.]
II.

Legal Standard
Summary judgment is proper where there is “no 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 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 material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In evaluating a motion for summary
judgment, the Court will construe all facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827 F.3d 699, 704
(7th Cir. 2016). However, the Court will not draw inferences that are “supported by only
speculation or conjecture,” Williams v. Brooks, 809 F.3d 936, 944 (7th Cir. 2016) (quoting
Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)) (internal citations omitted), and
“[c]onclusory allegations alone cannot defeat a motion for summary judgment.” Thomas v. Christ
Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th Cir. 2003).
It is not the role of the Court to scour the record in search of evidence to defeat a motion
for summary judgment; instead, the nonmoving party bears the responsibility of identifying
evidence to defeat summary judgment. Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099,

18

1104 (7th Cir. 2008). 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.” Anderson,
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].” Anderson,
477 U.S. at 252.
III.

Analysis
A.

Age and Gender Discrimination Claims (Counts I and II)

In Counts I and II of her complaint, Plaintiff brings claims for age and gender
discrimination in violation of the ADEA and Title VII. [See 1, ¶¶ 24–32.] Defendant moves for
summary judgment on both counts, arguing that Plaintiff cannot establish a prima facie case of
either age or gender discrimination. [See 22-1, at 10–11.]
To prove discrimination under either Title VII or the ADEA, a plaintiff must establish that
she suffered an adverse employment action that was motivated by discriminatory animus. See
Carson v. Lake Cty., Ind., 865 F.3d 526, 532 (7th Cir. 2017) (“A plaintiff seeking to recover for
disparate treatment under the ADEA must ‘prove, by a preponderance of the evidence, that age
was the ‘but-for’ cause of the challenged adverse employment action.’”) (quoting Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 180 (2009); Fleishman v. Continental Cas. Co., 698 F.3d 598, 603

19

(7th Cir. 2012)); Hossack v. Floor Covering Assocs. of Joliet, Inc., 492 F.3d 853, 860 (7th Cir.
2007) (an unlawful employment practice under Title VII is established when a plaintiff
demonstrates that a protected characteristic, such as gender, was a motivating factor for an
employment decision); see also Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114 n.3 (7th Cir.
2009) (“We apply the same analytical framework to employment discrimination cases whether
they are brought under the ADEA or Title VII.”).
The Court agrees that Plaintiff has provided no evidence to support her claims of
discrimination based on either her age or her gender. First, Plaintiff does not address these claims
at all in her response to Defendant’s summary judgment motion, instead focusing exclusively on
her disability discrimination claim and her retaliation claims. [See 28.] Therefore, Plaintiff has
abandoned these age and gender discrimination claims by failing to adequately develop arguments
relating to them. See Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1075 (7th Cir. 2013)
(holding that the plaintiffs had waived claims where they did not respond to defendant’s arguments
and “did not provide the district court with any basis to decide” them); see also Huang v.
Continental Cas. Co., 2012 WL 104628, at *6 (N.D. Ill. Jan. 12, 2012) (“A party abandons a claim
by failing to address it in his response brief to a motion for summary judgment.”) (citing Harper
v. Vigilant Ins. Co., 433 F.3d 521, 528 (7th Cir. 2005); Palmer v. Marion Cty., 327 F.3d 588, 597
(7th Cir. 2003)).
Even if these claims were not abandoned, however, they would still fail because there is
no evidence from which a fact finder could conclude that Plaintiff suffered any adverse
employment actions on the basis of her age or her gender. Regarding gender discrimination,
Plaintiff testified that Defendant hires men over women generally. Plaintiff also testified that she
had heard that certain less-qualified males were given positions that she applied for; however,

20

there is no evidence in the record as to when these males were hired or what their qualifications
were. [22-3, ¶ 77; 28, Ex. A, 162:15–165:12.] Regarding age discrimination, Plaintiff testified
that, several years prior to her deposition, she had seen two women over the age of 60 terminated
after working for Defendant for long periods of time. [22-3, ¶ 78; 28, Ex. A, 175:17–180:1.]
However, Plaintiff admits that no member of management or human resources ever made any
derogatory comments about her age or her gender, and two of the jobs that she applied for during
her medical leave were filled by women over the age of 40. [28-1, ¶¶ 59, 63, 79.] Plaintiff’s
general allegations, without more, do not suffice to demonstrate that Plaintiff suffered any adverse
employment action based on either her age or her gender. See Hoosier v. Greenwood Hospitality
Mgmt. LLC, 32 F. Supp. 3d 966, 976 (N.D. Ill. 2014) (granting summary judgment on Title VII
claims because “[a] plaintiff’s bare or conclusory assertion that an employer mistreated her
because of her protected status” is not sufficient to demonstrate a causal link); see also Winsley v.
Cook Cty., 563 F.3d 598, 605 (7th Cir. 2009) (noting that “vague assertions” by a plaintiff
regarding the more favorable treatment of other employees do not suffice to meet the plaintiff’s
burden of proof on summary judgment in the context of a Title VII discrimination claim).
Therefore, Defendant is entitled to summary judgment on Counts I and II of Plaintiff’s complaint.
B.

Disability Discrimination Claim (Count III)

In Count III of her complaint, Plaintiff brings a disability discrimination claim against
Defendant based on both disparate treatment and on a failure to provide a reasonable
accommodation. [See 1, ¶¶ 39–43.] Defendant argues that it is entitled to summary judgment on
Plaintiff’s discrimination claim in Count III because Plaintiff cannot establish that she is a qualified
individual with a disability, and thus fails to meet her burden of proof on both theories. [See 221, at 3–6.]

21

The ADA “prohibits employers from taking adverse employment actions against their
employees because of a disability.” Fleishman, 698 F.3d at 606; see also 42 U.S.C. § 12112(a).
To establish a violation of the Act an employee must show “‘1) that she is disabled; 2) that she is
otherwise qualified to perform the essential functions of the job with or without reasonable
accommodation; and 3) that the employer took an adverse job action against her because of her
disability or failed to make a reasonable accommodation.’” Winsley, 563 F.3d at 603 (quoting
Stevens v. Ill. Dep’t of Transp., 210 F.3d 732, 736 (7th Cir. 2000)). “To survive a motion for
summary judgment, a plaintiff must present the court with evidence that, if believed by a trier of
fact, would establish all three elements of [her] claim.” James v. Hyatt Regency Chi., 707 F.3d
775, 782 (7th Cir. 2013). “No matter the type of discrimination alleged—either disparate treatment
or failure to provide a reasonable accommodation—a plaintiff must establish first that he was ‘a
qualified individual with a disability.’” Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022
(7th Cir. 1997) (emphasis added).
Under the ADA, a “qualified individual with a disability” is “an individual who, with or
without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.” 42 U.S.C. § 12111(8). The employee must “pass
a two-step test” to be a “qualified individual.” Weiler v. Household Fin. Corp., 101 F.3d 519, 524
(7th Cir. 1996). “First, the individual must satisfy ‘the prerequisites for the position, such as
possessing the appropriate educational background, employment experience, skills, licenses, etc.’”
Id. “Second, the individual must be able to ‘perform the essential functions of the position held or
desired, with or without reasonable accommodation.’” Id. Again, “the burden of proof on the
issue of capability is not on the employer but on the plaintiff.” Miller v. Ill. Dep’t of Corrs., 107
F.3d 484, 484 (7th Cir. 1997).

22

The parties here do not dispute that Plaintiff is an individual with a disability; the Court
therefore assumes that Plaintiff satisfies the first element of a disability discrimination claim. The
parties also do not dispute that Plaintiff meets the prerequisites of the handler position. Instead,
Defendant argues that Plaintiff has failed to establish that she can perform the essential functions
of the handler position, either with or without a reasonable accommodation, and therefore fails to
establish that she is a qualified individual with a disability.
In order to determine whether a job function is essential, courts “look to the employer’s
judgment, written job descriptions, the amount of time spent on the function, and the experience
of those who previously or currently hold the position.” Majors v. Gen. Elec. Co., 714 F.3d 527,
533 (7th Cir. 2013) (quoting Rooney v. Koch Air, LLC, 410 F.3d 376, 382 (7th Cir. 2005)); see
also 29 C.F.R. § 1630.2(n)(3). The employer’s judgment, while important, is not a controlling
factor; courts “also look to evidence of the employer’s actual practices in the workplace.” Stern
v. St. Anthony’s Health Ctr., 788 F.3d 276, 285–86 (7th Cir. 2015) (quoting Miller v. Ill. Dep’t of
Transp., 643 F.3d 190, 198 (7th Cir. 2011)). It is Plaintiff’s burden to demonstrate a triable issue
of fact as to whether she was a “qualified individual” at the time she was fired in 2015. Id. at 285.
To determine whether Plaintiff has met this burden, the Court first considers what the
essential functions of the handler position are. There is no serious dispute between the parties that
lifting and moving packages—specifically, loading and unloading packages from cans and
trucks—is the primary job responsibility of a handler at the UGN Station. [28-1, ¶¶ 24–27.]
Defendant contends that an essential function of this responsibility is frequently lifting and moving
packages, over the handler’s waist and head, that may weigh up to 75 pounds. [22-1, at 4.]
Defendant has presented overwhelming evidence to support that this is the case. First, the
written description of the handler position requires that handlers be “[a]ble to lift 75 lbs.” [28, Ex.

23

14 to Ex. A.] While certainly not dispositive, this written job description is entitled to some weight.
See Basith v. Cook Cty., 241 F.3d 919, 928 (7th Cir. 2001); Newell v. Alden Vill. Health Facility
for Children & Young Adults, 2014 WL 6757928, at *4 (N.D. Ill. Dec. 1, 2014), aff’d, 651 F.
App’x 556 (7th Cir. 2016); see also Dobosz v. Quaker Chem. Corp., 2016 WL 4376528, at *12–
14 (N.D. Ind. Aug. 16, 2016) (determining on summary judgment that lifting, pushing, and pulling
over 30 pounds and overhead work were essential functions of position after considering the
written job description in conjunction with plaintiff’s own deposition testimony about his position
and an assessment by other employees of defendant corporation).
Second, the uncontroverted descriptions of the volume and flow of packages at the UGN
Station, as well as the descriptions of the cans and trucks themselves that must be loaded and
unloaded, support Defendant’s contention that a handler would need to lift packages over her waist
and over her head as an essential function of her job responsibilities. The cans that handlers must
load and unload have packages stacked to heights of 7.5 or 8 feet, and handlers must unload
approximately 1,000 of these packages per hour in the morning and load 400–500 of these
packages per hour in the evening. Fifty percent of these packages weigh over 15 pounds, and some
of those will necessarily be stacked over a person’s head or waist if the packages are stacked to
such heights. This is supported by the testimony of workers at the UGN Station who hold or have
held the position of handler, including Plaintiff. Brush, a senior manager who oversaw the handler
position, testified that a handler would have to lift a package above his or her waist roughly 50
percent of the time to load or unload cans, or 33 percent of the time to load or unload a truck.
Brush also testified that a handler of Plaintiff’s height would need to lift a package over her head
20 to 33 percent of the time when loading or unloading a truck, depending on how full the truck
is. [28, Ex. D, 106:5–107:10.] Mroz, who has worked for Defendant as both a handler and as a

24

courier, testified that to unload cans in the morning, a handler would have to reach overhead to
unload packages that weigh five or fifteen pounds on a “daily” basis. [28, Ex. B, 43:4–44:1.]
Plaintiff testified that, in order to get packages out of the cans, she would sometimes have to raise
her hands up and get packages over her head. [28, Ex. A, 105:20–106:10.] Plaintiff also testified
that, on her first day as a handler in April 2015, she was required to lift packages from her waist
to her shoulder that weighed 20–30 pounds. [Id., 103:15–104:12.] See Majors, 714 F.3d at 534
(where written job description stated that moving heavy objects was an essential job function, and
other employees confirmed it, agreed with district court that such moving of heavy objects was an
essential function of position plaintiff sought); Walker v. United Parcel Serv., 2015 WL 735779,
at *10 (S.D. Ind. Feb. 20, 2015) (no dispute that lifting and carrying packages weighing up to 70
pounds was an essential job function of the loader/unloader position at defendant, where plaintiff
admitted that she was responsible for frequently doing so); see also Miller, 643 F.3d at 200
(reversing grant of summary judgment on ADA discrimination claim where a reasonable jury
could conclude that, in practice, “essential” functions of position could be shared between team
members such that plaintiff would be able to perform in his job).
Plaintiff has not raised a material dispute of fact that this lifting of packages over the waist
and head is an essential function of the handler position. Plaintiff vigorously disputes whether, as
a matter of Defendant’s policy or as a matter of actual practice, this function encompassed a
requirement that a handler at the UGN Station lift a 75-pound package over her waist or over her
head. [28, at 7.] Plaintiff points to evidence in the record that, in reality, handlers are never
required to lift a package that heavy over their waist or their head. Therefore, according to
Plaintiff, the lifting of 75-pound packages over one’s waist is not an essential function of the
handler position, notwithstanding the written requirement that handlers be able to lift 75 pounds.

25

Construing the record in Plaintiff’s favor, there certainly is a material dispute as to whether
lifting a package that weighs 75 pounds over the waist and head is an essential function of the
handler position, considering that several employees testified that they had never heard of a
requirement to do so. However, this dispute is immaterial, as Plaintiff has not presented any
evidence from which a fact finder could infer that a handler at the UGN Station would never have
to lift any of the packages moving through the station over her waist or overhead, particularly those
weighing more than her weight restrictions but less than 75 pounds. Plaintiff only disputes that
this would have to happen “frequently,” pointing to Mroz’s deposition testimony as evidence that
such lifting was not a frequent part of the handler position. Mroz noted that sometimes a handler
can avoid reaching up high to pull down packages: if, for example, a can is stacked poorly,
packages will fall, and if a can is stacked well handlers can pull out packages from shoulder height
without reaching up. [28, Ex. B, 46:21–47:19.] However, this testimony does not establish that
reaching overhead and over the waist to load and unload packages was not an essential function of
the handler position at the UGN Station. At most it raises a question about how frequently this
action is performed. But considering that the parties do not dispute that loading and unloading
packages was the main responsibility of the UGN Station handler, the fact that such lifting may
not be needed with every package—or even most packages—does not make the ability to lift these
packages non-essential, as the Seventh Circuit has explained. See Basith, 241 F.3d at 929 (“[A]n
essential function need not encompass the majority of an employee’s time, or even a significant
quantity of time, to be essential. Rather, an essential function must be a fundamental duty of the
job.”) (citation omitted); see also Peters v. City of Mauston, 311 F.3d 835, 845 (7th Cir. 2002)
(affirming determination that heavy lifting was essential function of plaintiff’s job and noting that
even the plaintiff “admits that heavy lifting is required at times, and his argument that such lifting

26

is infrequent does not preclude it from being an essential function of the job”); cf. Kauffman v.
Petersen Health Care VII, LLC, 769 F.3d 958, 962 (7th Cir. 2014) (reversing grant of summary
judgment to employer; where hairdresser at nursing home could not wheel patients to and from
the on-site beauty parlor, evidence in the record could lead a factfinder to conclude that this was
such a small part of her hairdressing duties that the ability to do so was not essential).
The Court next considers whether Plaintiff could perform the essential function of the job
without an accommodation. Plaintiff’s lifting restrictions, as they were in place in April 2015,
restricted her from lifting more than 75 pounds frequently from floor to waist, 15 pounds frequently
from waist to shoulder and 30 pounds occasionally from waist to shoulder, and 5 pounds overhead
on a limited basis (or 15 pounds with left hand assist). [28, Ex. 17 to Ex. A.] It is uncontroverted
that 50 percent of the packages moving through the UGN Station in 2015 weighed more than 15
pounds. [28-1, ¶ 33.] This means that more than 50 percent of the packages moving through the
UGN Station at the time Plaintiff was employed as a handler there were heavier than her weight
restrictions would allow her to lift over her waist on a frequent basis. Therefore, Plaintiff could
not perform the essential function of this position without an accommodation. See Majors, 714
F.3d at 534 (when lifting objects weighing over twenty pounds is essential function of position,
restriction prohibiting plaintiff from lifting more than twenty pounds meant she could not perform
an essential function of position without an accommodation); Dobosz, 2016 WL 4376528, at *14
(plaintiff’s permanent lifting restrictions prevented him from performing essential functions of
position without an accommodation); Walker, 2015 WL 735779, at *10 (same).
Closely related to Plaintiff’s argument that lifting 75 pounds above her waist and her
shoulder is not an essential function of the handler position, Plaintiff again disputes that she was
unable to perform the essential functions of the position. Specifically, Plaintiff argues first that in

27

reality, nobody lifts 75 pounds overhead as a handler at the UGN Station and, second, Plaintiff
was able to work as a handler for almost three weeks without any issues, thus demonstrating that
she was qualified to perform the essential functions of the handler position. [28, at 12–13.]
Plaintiff relies on one unreported district court case to support her argument. See Crain v.
Roseville Rehabilitation & Health Care, 2017 WL 1075070 (C.D. Ill. Mar. 21, 2017). In Crain, a
certified nursing assistant was placed under permanent lifting restrictions after shoulder surgery:
after receiving those restrictions, she continued working as a nursing assistant for six years. When
her employer was sold to a new company, she was eventually let go from her position because,
according to her employer, these lifting restrictions prevented her from being able to perform the
essential functions of her position. Id., at *2. The district court held, however, that Plaintiff had
raised a material question of fact as to whether she was a qualified individual under the ADA
because plaintiff testified that she was able to perform in this position for years, and other
employees opined that as a practical matter a nursing assistant would not be prevented from
performing any of the essential functions of her position based on the plaintiff’s restrictions. Id.
at *5.
Crain provides no real help to Plaintiff. First, for the reasons discussed above, Plaintiff
has not produced evidence that raises a dispute about whether lifting packages over her head and
waist would be an essential function of her job, if those packages weighed less than 75 pounds.
Second, while the Court accepts that Plaintiff worked as a handler for almost three weeks without
complaint, this does not demonstrate that she was qualified to perform the essential functions of
the handler position. If Defendant allowed her to work as a handler without any accommodations,
it would be ignoring her doctor-imposed lifting restrictions, which Defendant is not required to do
under the ADA. See Newell, 2014 WL 6757928, at *5 (“It is well established that the ADA does

28

not require an employer to disregard documented, uncontroverted medical restrictions.”) (citing
Dvorak v. Mostardi Platt Assocs., 289 F.3d 479, 484–85 (7th Cir. 2002)); see also Majors v. Gen.
Elec. Co., 2012 WL 2912726, at *7 (S.D. Ind. July 16, 2012) (noting that, while plaintiff asserted
that ignoring her lifting restrictions would be a reasonable accommodation, disregarding an
uncontroverted medial restriction is not required by the ADA, and “to do so could open the
employer up to separate ADA liability for failure to abide by restrictions”); Dobosz, 2016 WL
4376528, at *14 (granting summary judgment on ADA claim because plaintiff’s own testimony
showed that lifting certain weight was essential function of his job, and the fact that plaintiff had
previously done work involving lifting weights in excess of his lifting restrictions did not raise a
genuine issue of material fact as to whether he was a qualified individual under the ADA).3
The Court now considers whether Plaintiff can perform the job with an accommodation.
Plaintiff argues that she does not require any “special accommodation,” but that evidence shows
that when a package is too heavy or unwieldy at the UGN Station, it is accepted practice to ask for
help in lifting that package. [28, at 15.] However, as previously discussed, Plaintiff would need
help lifting approximately 50 percent of the packages flowing through the UGN Station over her
waist and over her head. Even accepting that asking for help from other employees is an accepted
practice at the UGN Station, Defendant is not required to essentially waive the handler lifting
requirement for Plaintiff. See Majors, 714 F.3d at 534 (“To have another employee perform a

3

Plaintiff also points to an April 22, 2015 e-mail in which Brush stated that there were “only 2 outcomes”
in reference to Plaintiff: “She is released to full duty,” or “She is terminated for not disclosing her physical
limitations during the application process.” [28, Ex. K.] Plaintiff argues that this e-mail follows the receipt
of Plaintiff’s new lifting restrictions and implies that Brush thought Plaintiff could still work as a handler.
[28, at 9.] However, there is no evidence in the record of when Brush received Plaintiff’s new lifting
restrictions. Even assuming that Brush had received them as of the date of this e-mail, the fact remains that
Defendant was not required to ignore Plaintiff’s documented restrictions under the ADA for the reasons
stated above.

29

position’s essential function, and to a certain extent perform the job for the employee, is not a
reasonable accommodation.”) (citing Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir.
1996)); see also Peters, 311 F.3d at 845–46 (request to have someone else do the heaviest lifting
if plaintiff could not handle that is an unreasonable accommodation); Severson v. Heartland
Woodcraft, Inc., 2015 WL 7113390, at *6–7 (E.D. Wis. Nov. 12, 2015) (because lifting was an
essential function of position, requiring defendant to reallocate lifting duties to other employees
would not be a reasonable accommodation).4
Plaintiff also makes another argument regarding the circumstances of her re-hire in April
2015 that, she contends, raises a material dispute of fact regarding her ADA claims. Plaintiff
argues that at the March 2015 meeting with Charles, Charles promised Plaintiff that she would
only have to offload trucks and after three weeks Charles would get Plaintiff a courier position
instead. [See 28, at 3; 28-2, ¶ 5.]
Although Plaintiff does not explicitly make this argument, her contentions regarding
Charles’ separate promises to her could be construed as an argument that she was being provided
with a reasonable accommodation in the handler position and, therefore, she was a qualified
individual with a disability as defined by the ADA. To the extent Plaintiff intends to make this
argument, it is a nonstarter. Even if the promise that Plaintiff would only be working as a handler
for three weeks before being able to work as a courier had been made, it does not change the
conclusion that she was not a qualified individual. Indeed, Plaintiff herself testified that couriers
and handlers have the same lifting requirements. [28, Ex. A, 134:11–19.] Regarding the promise
that she would only have to unload, not load, trucks, even if Plaintiff only performed modified

4

Additionally, because Plaintiff was the only handler employed at the UGN Station in April 2015, this is
not a situation where the lifting duties could be shared among team members such that, even if some
employees could not lift all packages, the team as a whole would be able to perform that function. See,
e.g., Miller, 643 F.3d at 199–200.

30

duties as a handler for the three weeks she was employed as an accommodation for her lifting
restrictions, that does not mean that these accommodations were reasonable. See Sieberns, 125
F.3d at 1023; Basith, 241 F.3d at 930 (“If the employer bends over backwards to accommodate a
disabled worker * * * it must not be punished for its generosity by being deemed to have conceded
the reasonableness of so far-reaching an accommodation.”) (quoting Vande Zande v. State of Wis.
Dep’t of Admin., 44 F.3d 538, 545 (7th Cir. 1995)); see also Vraniskoska v. Franciscan Cmtys.,
Inc., 2013 WL 4647224, at *8 (N.D. Ind. Aug. 29, 2013) (“[T]he fact that [defendant] had
accommodated [plaintiff] during this period is not evidence that it altered the essential functions
of the position.”); Rivera v. Principi, 2001 WL 1249051, at *7 (N.D. Ill. Oct. 16, 2001) (“[T]he
VA * * * was not required to restructure Rivera’s position or the position of other employees in
order to accommodate his disability.”).
Plaintiff finally contends that her ADA claims survive summary judgment because the
differences in her accommodation denial letters in 2013 and 2015 demonstrate clear pretext for
Plaintiff’s termination. [28, at 13.] Specifically, Plaintiff argues that the May 2015 letter she
received from Ramos denying her an accommodation reference a requirement to lift 75 pounds
over the waist and overhead, which was not an actual requirement of the handler position.
However, because Plaintiff has not pointed to any evidence that would allow a jury to determine
that she was a qualified individual with a disability, she has not established a prima facie case of
discrimination, and the Court need not analyze her pretext argument. See Majors, 714 F.3d at 536.
In sum, Plaintiff has failed to raise a triable issue of fact regarding her status as a qualified
individual covered by the ADA, which is required to proceed with her claims of disparate treatment
and failure to accommodate. Defendant is therefore entitled to summary judgment on Plaintiff’s
disability discrimination claim in Count III.

31

C.

ADA Retaliation Claim (Count III)

Plaintiff also brings a retaliation claim under the ADA in Count III. Although the Court
has granted summary judgment on Plaintiff’s discrimination and failure to accommodate claims,
the viability of Plaintiff’s retaliation claim does not turn on the viability of these underlying ADA
claims. See Turner v. The Saloon, Ltd., 595 F.3d 679, 690 (7th Cir. 2010) (“The fact that Turner
is not disabled under the ADA is not fatal to his retaliation claim.”). “The [ADA] prohibits an
employer from retaliating against an employee who has raised an ADA claim, whether or not that
employee ultimately succeeds on the merits of that claim.” Squibb v. Mem’l Med. Ctr., 497 F.3d
775, 786 (7th Cir. 2007). To prove her retaliation claim, Plaintiff must present evidence of “(1) a
statutorily protected activity; (2) an adverse action; and (3) a causal connection between the two.”
Id.
Plaintiff contends that she complained about disability discrimination in 2013 after her first
period of employment was terminated by making a complaint through Defendant’s GFT process,
speaking to Ramos and HCMP Advisor Todd Bell, and by writing a letter to someone about her
treatment. [22-3, ¶¶ 68, 70.] Defendant argues that it is entitled to summary judgment on
Plaintiff’s ADA retaliation claim because she cannot establish the required causal link between
these 2013 complaints of discrimination and her placement on medical leave and termination in
2015 based on the time gap between these two events. [22-1, at 12–13.] Plaintiff responds that
she has presented sufficient evidence to create a material dispute on the issue of causation because
she has presented evidence of retaliation beyond the timing of events, including (1) the repeated
references to her 2013 lifting restrictions in the communications about her in 2015; (2) e-mails
discussing how Plaintiff got past recruitment in April 2015; and (3) Defendant’s inconsistencies

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in its explanation for how Plaintiff’s superiors became concerned about Plaintiff’s re-hire. [28, at
16–17.]
A retaliation claim requires proof of but-for causation. Lord v. High Voltage Software,
Inc., 839 F.3d 556, 563 (7th Cir. 2016) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
362 (2013)) (elements of a Title VII retaliation claim); see also Pinkston v. City of Chi., 2017 WL
4340155, at *10 (N.D. Ill. Sept. 29, 2017) (noting that the elements of a retaliation claim are the
same under Title VII and the ADA). The Seventh Circuit recently jettisoned the long-standing
practice of distinguishing between the “direct” and “indirect” methods of analyzing retaliation
claims. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 763–66 (7th Cir. 2016). Ortiz instructs courts
to focus on a more straightforward inquiry: “Does the record contain sufficient evidence to permit
a reasonable fact finder to conclude that retaliatory motive caused the discharge?” Lord, 839 F.3d
at 563; see also Ortiz, 834 F.3d at 765 (“Th[e] legal standard * * * is simply whether the evidence
would permit a reasonable factfinder to conclude that the plaintiff’s * * * proscribed factor caused
the discharge or other adverse employment action.”). The Court is to consider the evidence as a
whole, rather than asking whether any particular piece of evidence proves the case by itself. Id.
Direct evidence, such as an admission by the employer of unlawful animus, is sufficient to
demonstrate a causal connection, but rare. Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir.
2017). A plaintiff may “also supply the causal link through circumstantial evidence from which a
jury may infer intentional discrimination.” Id. (citation and internal quotation marks omitted).
Circumstantial evidence may include suspicious timing, ambiguous statements or behavior
towards protected employees, evidence, statistical or otherwise, that similarly situated employees
systematically receive better treatment, evidence that the employer offered a pretextual reason for
an adverse employment action, and any other relevant information that could permit an inference

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of retaliation. See Dickerson v. Bd. of Trustees of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601
(7th Cir. 2011); Rao v. Gondi, 2017 WL 2445131, at *20 (N.D. Ill. June 5, 2017).
The Court agrees that Plaintiff has not presented any evidence of a causal link between her
2013 disability discrimination complaints and her termination in 2015 that would permit an
inference of retaliation. The timing of these events—the complaints being first in time in 2013,
followed by the termination in 2015—does not by itself support such an inference because there
is nothing suspicious about this timing. See Han v. Whole Foods Market Grp., Inc., 44 F. Supp.
3d 769, 798 (N.D. Ill. 2014) (two years between complaint and termination “belie[s] the existence
of a causal connection) (citing Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 675
(7th Cir. 2011); Tomanovich v. City of Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006)). Even if
these two events had happened closer in time to each other, temporal proximity alone is insufficient
to establish a causal connection for a claim of retaliation. See Mobley v. Allstate Ins. Co., 531 F.3d
539, 549 (7th Cir. 2008). A plaintiff must go beyond “[s]peculation based on suspicious timing”
and “produce facts which somehow tie the adverse decision to the plaintiffs’ protected actions.”
Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000); Tomanovich, 457 F.3d at 665.
Some “other circumstances must also be present which reasonably suggest that the two events are
somehow related to one another.” Sauzek, 202 F.3d at 918.5

5

An exception would be if the adverse action occurs “on the heels of protected activity,” (i.e., within days
or weeks of the protected activity). See Mobley, 531 F.3d at 549. Here, there are two years separating
Plaintiff’s complaints and her ultimate termination after her second period of employment in 2015. Plaintiff
attempts to shorten this time period by noting that her appeals of her complaints were not denied until
February 2014, but she provides no evidence to support this fact. [28-2, ¶ 31.] Even if the Court were to
accept this fact, however, this timing is not enough on its face to provide an inference of causation because
there is still over a year between her discrimination complaints and the adverse actions that Plaintiff
complains of. Plaintiff also tries to shorten the time period between her discrimination complaints and her
termination by pointing to the fact that she continued to apply for jobs with Defendant between her first
and second periods of employment. However, there is no evidence in the record of what jobs she applied
for or when she applied for them.

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Even assuming Plaintiff’s 2013 complaints are considered protected activities, Plaintiff has
not produced any other facts tying her placement on medical leave, her failure to obtain other
positions at the company while on medical leave, and her termination in 2015 to those complaints.
Plaintiff points to references to her earlier lifting restrictions by individuals whom she claims knew
about her discrimination complaints and the inconsistencies in various individuals’ statements
about whether she was complaining about pain while working in April 2015. But accepting that
these references to Plaintiff’s earlier lifting restrictions were made does not raise an inference that
Plaintiff’s discrimination complaints were also being discussed or considered. Additionally, any
knowledge of her previous employment and her previous lifting restrictions does not automatically
lead to an inference that these employees knew about her discrimination complaints. Plaintiff
further has not presented any evidence that Fowler, Brush, or Charles knew about her previous
complaints in 2013. In short, Plaintiff has not presented any evidence from which a trier of fact
could infer that her employment in 2015 was terminated because of her disability discrimination
complaints in 2013. See Povey v. City of Jeffersonville, Ind., 697 F.3d 619, 624–25 (7th Cir. 2012)
(affirming summary judgment for employer on ADA retaliation claim because timing alone was
insufficient to create a genuine issue of material fact, and the other evidence plaintiff put forward
was unrelated to her harassment complaint); Perez v. Transformer Mfrs., Inc., 35 F. Supp. 3d 941,
954 (N.D. Ill. 2014) (derogatory comments about plaintiff that did not refer, even obliquely, to
discrimination charge were not enough to show causal connection between that charge and adverse
employment action to support a retaliation claim). Therefore, Defendant is entitled to summary
judgment on the retaliation claim in Count III.
D.

State Law Retaliatory Termination Claim (Count IV)

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Given the foregoing conclusion that Defendant is entitled to summary judgment on
Plaintiff’s federal claims under the ADEA (Count I), Title VII (Count II), and the ADA (Count
III), the Court must consider whether to exercise its supplemental jurisdiction over Plaintiff’s
remaining state law retaliatory discharge claim (Count IV). Where a district court has original
jurisdiction over some claims, it has supplemental jurisdiction over other claims that are so related
that they form part of the same case or controversy. 28 U.S.C. § 1367(a); Miller v. Herman, 600
F.3d 726, 738 (7th Cir. 2010). If the court has dismissed all claims over which it has original
jurisdiction, the court’s supplemental jurisdiction persists, but the court has discretion to decline
to exercise supplemental jurisdiction. 28 U.S.C. § 1367(c)(3); Miller, 600 F.3d at 738 (noting that
the decision whether to exercise supplemental jurisdiction is “squarely within [the district court’s]
discretion.”).
As the Seventh Circuit has stated, “it is the well-established law of this circuit that the usual
practice is to dismiss without prejudice state supplemental claims whenever all federal claims have
been dismissed prior to trial.” Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999).
However, exceptions to this general rule exist:
(1) when the statute of limitations has run on the pendent claim, precluding the
filing of a separate suit in state court; (2) substantial judicial resources have already
been committed, so that sending the case to another court will cause a substantial
duplication of effort; or (3) when it is absolutely clear how the pendent claims can
be decided.
Davis v. Cook Cty., 534 F.3d 650, 654 (7th Cir. 2008) (citation and internal quotation marks
omitted). In this instance, the Court concludes that exceptions (2) and (3) above both apply. The
Court has devoted considerable resources to sorting out both the facts and the law in this case, and
the federal and state law claims rest on the same core set of operative facts. Prudence dictates that
the Court resolve the state law claim to avoid duplication of judicial effort, especially where (as

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here) the application of state law to the dispositive causation element of the state law cause of
action is abundantly clear.
“Generally, an at-will employee may be discharged for any reason or for no reason at all.”
Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir. 1994). In Illinois, however, it is
unlawful to terminate an employee in retaliation for exercising her rights under the Illinois
Worker’s Compensation Act (“IWCA”). Beatty v. Olin Corp., 693 F.3d 750, 753 (7th Cir. 2012);
Kelsay v. Motorola, Inc., 384 N.E.2d 353, 357 (Ill. 1978). For claims alleging retaliatory discharge
for the exercise of IWCA rights, a plaintiff must show that: (1) she was employed by the defendant
before being injured; (2) she exercised a right under the IWCA; and (3) her discharge was causally
connected to the exercise of her right. Gordon v. FedEx Freight, Inc., 674 F.3d 769, 773 (7th Cir.
2012) (citation omitted).
To establish a causal relationship, Plaintiff must affirmatively show that the discharge was
primarily in retaliation for her exercise of a protected right (her worker’s compensation claim).
Gordon, 674 F.3d at 774. In other words, Plaintiff must present “sufficient evidence from which
a reasonable jury could infer that the employer was improperly motivated.” Id. (citing Roger, 21
F.3d at 149); see also Hartlein v. Ill. Power Co., 601 N.E.2d 720, 730 (Ill. 1992) (the ultimate issue
to be decided is the employer’s motive in discharging the employee); Williams v. Office of Chief
Judge of Cook Cty. Ill., 839 F.3d 617, 622 (7th Cir. 2016) (“So long as the reason for a discharge
is wholly unrelated to an employee’s claim for benefits, the employer is not liable for retaliatory
discharge.”)
Defendant argues that it is entitled to summary judgment on this claim for two reasons:
first, Plaintiff’s claim retaliatory discharge claim is barred by the agreed shortened contractual
limitations period contained in the employment agreement that she signed, and second, Plaintiff’s

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claim fails on the merits. [22-3, at 14–15.] Plaintiff, in turn, argues that the employment contract
between Defendant and Plaintiff is not enforceable because Plaintiff did not sign it, and that her
state law retaliation claim should not be dismissed on the merits. [28, at 17–18.]
The Court need not address Defendant’s statute of limitations argument because, even if
the Court were to accept Plaintiff’s contentions that the shortened limitations period in the handler
employment contract is unenforceable, Plaintiff has not presented any evidence from which a trier
of fact could conclude that plaintiff’s termination was causally connected to her worker’s
compensation claim. Plaintiff filed her only worker’s compensation claim in 2011. [22-3, ¶ 11.]
She was terminated from her second period of employment in 2015. The only evidence that
Plaintiff has put forward to connect these two events is that Charles, Ramos, and Wibright knew
about Plaintiff’s 2011 claim and Plaintiff’s statement that “everyone knew” she was still receiving
benefits when she returned to Defendant in 2015. [22-3, ¶ 75; 28-1, ¶ 76; 28-2, ¶¶ 16–17.] But
Plaintiff has not put forward any evidence that these employees referenced her worker’s
compensation claim at any point in 2015 or considered it as a factor in her ultimate termination.
Simply put, the only evidence of causation that Plaintiff puts forward is the fact that she filed a
worker’s compensation claim in 2011 and was then fired four years later, which is not enough to
support her retaliatory discharge claim. See Bourbon v. Kmart Corp., 223 F.3d 469, 473 (7th Cir.
2000) (temporal proximity alone is insufficient to prove that an employer’s reason for terminating
plaintiff was pretextual); Perez, 35 F. Supp. 3d at 955 (temporal proximity alone is insufficient to
create a genuine issue of material fact). Because Plaintiff has not put forward any evidence on
which the Court could rely in finding a causal connection between her worker’s compensation
claim and her termination, Defendant is entitled to summary judgment on Count IV.

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IV.

Conclusion
For the reasons stated above, Defendant’s motion [22] for summary judgment is granted,

and Plaintiff’s motion [35] to strike is denied. The Court will issue final judgment and close the
case.

Dated: August 21, 2018

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

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