Freeman v. Metropolitan Water Reclamation District of Chicago
Filing
177
MEMORANDUM Opinion and Order: For the reasons stated herein, Freeman's Motion for Partial Summary Judgment (Dkt. No. 165) is denied. MWRDC's Motion for Summary Judgment (Dkt. No. 159) is granted in part and denied in part. Summary judgment is granted as to Counts III, IV, and V. Summary judgment is denied as to Count II. Telephone Conference set for 10/26/2021 at 10:00 a.m. Dial: 888-684-8852 or 215-446-0155, access code: 9582710#. Security code (if asked): 8115. Signed by the Honorable Harry D. Leinenweber on 9/21/2021: Mailed notice (maf)
Case: 1:17-cv-04409 Document #: 177 Filed: 09/21/21 Page 1 of 45 PageID #:4896
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHAKA FREEMAN,
Plaintiff,
v.
Case No. 17 C 4409
METROPOLITAN WATER
RECLAMATION DISTRICT OF
GREATER CHICAGO,
Judge Harry D. Leinenweber
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff
Shaka
Freeman
brings
this
action
against
his
former employer, Defendant Metropolitan Water Reclamation District
of Chicago (“MWRDC” or the “District”) alleging violations of the
Americans with Disabilities Act (“ADA” or the “Act”), 42 U.S.C.
§§ 12101 and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000d. At the center of this case is MWRDC’s decision to
terminate Freeman’s probationary employment in response to the
suspension of Freeman’s driver’s license. MWRDC moved for summary
judgment and Freeman cross moved for partial summary judgment. For
the reasons stated herein, Plaintiff Freeman’s Motion for Partial
Summary Judgment (Dkt. No. 165) is denied. Defendant Metropolitan
Water
Reclamation
District
of
Chicago’s
Motion
for
Summary
Judgment (Dkt. No. 159) is granted as to Counts III, IV and V and
denied as to Count II.
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I. BACKGROUND
The Court draws the following facts from the supporting
memoranda,
statements
of
material
facts,
and
underlying
evidentiary materials filed by the Parties in accordance with
Northern District of Illinois Local Rule 56.1. Local Rule 56.1 was
implemented “to make summary-judgment decisionmaking manageable
for courts.” Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d
405, 415 (7th Cir. 2019). The Parties’ submissions failed to do
that here. Both Freeman and MWRDC submitted conclusory facts and
injected interpretation and analysis into their Local Rule 56.1
statements. As a result, the responses from both Parties were
largely one side objecting to the other’s factual spin. These
submissions offered little in the way of clearly undisputed facts.
As a result, the Court cites to the underlying record and relies
on those documents in its recitation of facts.
A. Freeman’s Employment with MWRDC
MWRDC is “the wastewater treatment and stormwater management
agency
for
the
throughout
City
Cook
of
Chicago
County.”
and
128
Water
suburban
communities
Reclamation
Plants,
https://mwrd.org/water-reclamation-plants (last visited 9/15/21).
All stormwater and wastewater from homes and businesses in MWRDC’s
882.1 square-mile service area flow through local sewers and into
one
of
seven
water
reclamation
plants
in
Chicago
and
the
surrounding suburbs. Id. MWRDC’s Stickney Water Reclamation Plant
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(the “Stickney Plant”) is one of the largest wastewater treatment
facilities
in
the
world,
spanning
413
acres.
Stickney
Water
Reclamation Plant Fact Sheet at 1, https://mwrd.org/sites/default/
files/documents/FactSheet_WRPs_Stickney_201219%20%281%29.pdf
(last visited 9/15/21). The Stickney Plant serves 230 million
people within Cook County and cleans nearly 700 million gallons of
water per day. Id.
Freeman holds a Class Three Wastewater Treatment Operator
Certificate in the State of Illinois. (Def.’s Resp. to Pl.’s Stmt.
of Facts (“DSOF”) ¶ 28, Dkt. No. 171.) On May 13, 2015, Freeman
began working for MWRDC as a Treatment Plant Operator I (“TPO I”)
on the midnight shift at the Stickney Plant. (Pl.’s Resp. to Def.’s
Stmt. of Facts (“PSOF”) ¶ 1, Dkt. No. 166-1.) When his employment
began in May 2015, Freeman was on probationary status. (Id. ¶ 4.)
During his probationary period Freeman could be terminated at any
time by the Executive Director of MWRDC. (Employee Handbook at 22, Kosowski Rule 30(b)(6) Dep., Ex. 3, Def.’s Stmt. Facts, Ex. I,
Dkt. No. 160-10.) Probationary termination decisions are final and
not subject to review. (Id. at 2-3.) After successful completion
of 250 workdays, or approximately one calendar year, probationary
employees are eligible for civil service status. (Id. at 2-2.)
Employees that achieve Civil Service status “can only be discharged
for cause by the Civil Service Board.” (Id. at 2-3.)
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Civil Service status only attaches to a particular role.
Consequently, employees must undergo a probationary period each
time
they
take
on
a
new
role,
including
promotions.
(Korcal
Dep. 56:16–57:9, Def.’s Stmt. of Facts, Ex. P, Dkt. No. 160-17.)
Once an employee achieves Civil Service status in a particular job
title,
they
retain
that
status
for
the
remainder
of
their
employment with the District. (Id.) Consequently, if the District
terminates the employment of a Civil Service employee completing
their probationary period in a new role, that employee is not
terminated from District entirely. (Id.) Instead, the employee is
returned to their previously held Civil Service position. (Id.)
As a TPO I, Freeman was responsible for “control[ing] and
coordinat[ing] the routine sewage treatment process operation” at
the Stickney Plant. (TPO I Job Description at 1, Def.’s Stmt. of
Facts, Ex. B, Dkt. No. 160-3.) The TPO I job description lists the
position’s
essential
functions
including,
coordinating
the
wastewater treatment process, touring the facility, conducting
firsthand
collection
inspection
of
process
of
operating
samples,
and
equipment,
reacting
overseeing
in
a
timely
the
and
efficient manner to emergency conditions. (Id.) The TPO I job
description also lists desirable knowledge and skills including
knowledge of the operating equipment used in the sewage treatment
process and the ability to do heavy manual labor. (Id. at 1–2.)
One specific job of the TPO I on midnights was the collection of
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11 to 12 composite samples from around the Stickney Plant. (PSOF
¶ 27.) The composite samples were collected in 2.5 gallon or 5gallon jugs. (Id.) All samples needed to be collected and checked
into the Stickney Plant’s lab by midnight. (Id.) From May 2015 to
until his license suspension in August 2015, Freeman collected the
composite samples using an MWRDC vehicle. (Id.)
The TPO I job description does not reference a driver’s
license as necessary or preferred. (TPO I Job Description at 1–
2.) Dev Rijal, a former TPO I at the Stickney Plant, testified
that he viewed operating a motor vehicle as necessary for some of
the
listed
essential
duties,
including
the
collection
and
processing of samples, touring the Stickney Plant, inspecting
equipment,
and
responding
to
emergency
conditions.
(Rijal
Dep. 22:16–23:4, Def.’s Stmt. of Facts, Ex. J, Dkt. No. 160-11.)
According to Rijal, he never observed a TPO I complete their job
only on foot or by using a bicycle. (Id. 29:1–10.) Freeman,
however, testified that the use of a vehicle was a convenience,
not a necessity. (Freeman Dep. 30:15–31:5, Def.’s Stmt. of Facts,
Ex. L, Dkt. No. 160-13.) Freeman explained that when he worked at
the Stickney Plant he spent the majority of his shift on foot,
walking to various areas of the Stickney Plant. (Id. 15:23–16:2,
46:18–20.)
When employed at the Stickney Plant, Freeman’s midnight shift
began at 10:30 p.m. (PSOF ¶ 27.) In addition to a TPO I, the
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Stickney
Plant
midnight
shift
was
staffed
with
at
least
one
Treatment Plant Operator II (“TPO II”) and one general laborer.
(Stinson Dep. 8:19–21, Def.’s Stmt. of Facts, Ex. M, Dkt. No. 16014.)
The
midnight
crew
reported
to
Derrick
Stinson
and
Paul
Donnelly, the Treatment Plant Operator IIIs (“TPO III”) on that
shift.(Cummings Dep. 24: 3–19, Def.’s Stmt. of Facts, Ex. M, Dkt.
No. 160-14.)
On July 26, 2015 Freeman received his three-month probationary
progress report. (Freeman 3-Month Progress Report, Pl.’s Stmt. of
Facts, Ex. 11, Dkt. No. 164-12.) Freeman received a score of “Meets
Standards”
for
all
of
the
evaluation’s
listed
under
“Behaviors/Competencies.” (Id.) Freeman’s overall evaluation was
also “Meets Standards.” (Id.) The evaluation was signed by Freeman
and one of his immediate supervisors, Donnelly. (Id.)
B. Freeman’s DUI & Treatment
On July 11, 2015, Freeman was arrested and charged with
driving
under
the
influence
of
alcohol
(“DUI”).
(DSOF
¶
1.)
Sometime after his arrest, Freeman enrolled in the MWRDC Employee
Assistance Program (“EAP”). (Id. ¶ 2.) On July 30, 2015, Freeman
met with Michelle Williams, the licensed a clinical social worker
to whom he was referred by the EAP. (EAP Case Notes at 1, Pl.’s
Stmt. of Facts, Ex. 2, Dkt. No. 164-3.) Williams characterized
Freeman’s
“[r]eported
problem”
as
“Alcohol
DUI
and
Court
Concerns.” (Id.) During their first meeting, Williams referred
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Freeman
to
Alcoholics
Anonymous
(“AA”)
and
alcohol
treatment
facilities. (Id.) Freeman met with Williams for a second time on
August 13, 2015. (Id.) During this meeting, Williams again provided
Freeman with “resources for Chicago land [sic] AA meetings.” (Id.)
On August 18, 2015, Freeman met with Williams again. (Id.)
The notes from that meeting indicate that the session “focused on
[patient] denial of alcohol problems, even with 3 DUIs. [Patient]
resistant to alcohol education.” (Id.) The notes also state that
Freeman intended to discontinue his work with Williams, and that
“[patient] states he will call for future if needed.” (Id.) Freeman
confirmed
that
he
stopped
meeting
with
his
counselor
after
August 18, 2015. (Freeman Dep. 127:6–9.)
C. Freeman’s Disclosure of the DUI and MWRDC’s Response
On August 18, 2015, Freeman met with his supervisors, Stinson
and Donnelly, and disclosed his DUI arrest. (DSOF ¶ 7.) During
this meeting, Freeman informed Stinson and Donnelly that his
driver’s license would be suspended for six months as of 12:01 a.m.
on August 26, 2015. (Id.; Email from Roxanne Bonner to Reed Dring,
et al. (Sept. 4, 2015) (“Bonner Email”) at 3, Def.’s Stmt. of
Facts, Ex. D, Dkt. No. 160-5.) Freeman further explained that he
was
eligible
to
receive
and
would
be
applying
for
Illinois’
Monitoring Device Driving Permit (“Monitoring Permit”) and the
Employment Exemption. (DSOF ¶ 7.) The Monitoring Permit would allow
Freeman to operate his personal vehicle with the installation of
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a
Breath
Alcohol
Ignition
Interlock
Device
(“Breathalyzer
Device”). (PSOF ¶ 10.) The Monitoring Permit could not, however,
be
issued
mandatory
immediately.
30-day
(Id.)
driver’s
Instead
license
Freeman
had
suspension,
to
serve
beginning
a
on
August 26, 2015. (Id.) The Employment Exemption is a designation
on the Monitoring Permit. (Id. ¶ 11.) If granted, the Employment
Exemption would allow Freeman to operate employer-owned vehicles
without a Breathalyzer Device during work hours. (Id.) Freeman
could only obtain the Employment Exemption with sign-off from
MWRDC. (Id.)
The parties agreed that during the August 18 meeting, Stinson
referred Freeman to the EAP. (DSOF ¶ 8.) As testified to by
Freeman, Freeman then informed Stinson that he had already selfenrolled in the EAP and was getting counseling for his alcohol use
disorder (“AUD”). (Freeman Dep. 91:16–21.) According to Freeman,
Stinson responded that Freeman should keep the information about
his counseling and AUD to himself. (Id. 91:22–92:7.) Freeman
further testified that Stinson assured him that other District
employees had experienced similar problems and did not lose their
jobs. (Id. 96:22–97:1.) Stinson, however, testified that he did
not recall Freeman telling him that he had enrolled in the EAP
related to problems with alcohol. (Stinson Dep. 31: 8–12.)
Stinson sent an email summary of the meeting to his direct
supervisor,
Principal
Engineer
Joe
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Cummings,
and
Cummings’
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supervisor, Operations Manager Reed Dring. (DSOF ¶ 9.) Stinson
reported Freeman’s intention to apply for the Monitoring Permit
and the Employment Exemption, and sought clarification regarding
whether Freeman could operate MWRDC’s John Deere Gators (“Gators”)
and golf carts while his license was suspended. (Id.) As set forth
in the email correspondence, Cummings responded by stating that
once Freeman’s license was suspended, he would “not be permitted
to drive any motorized vehicle on plant grounds, including [golf]
carts & Gators.” (Bonner Email at 2–3.)
In his response to Stinson’s email, Cummings also included
TPO IIIs from the day and afternoon shifts at the Stickney Plant.
(Id.) Later that same day, two of those TPO IIIs, Charles Svazas
and Anthony Venuso, emailed Cummings to express concerns about
Freeman’s ability to fulfill his duties without a valid driver’s
license. (Email from Brian Deitz to Roxanne Bonner (Aug. 20, 2015)
(“Deitz Email”) at 1–2, Pl.’s Stmt. of Facts, Ex. 6 Dkt. No. 1647.) Because treatment plant operators often work double shifts,
Svazas and Venuso were concerned about the “the liability of
working with [a TPO I without a driver’s license] if [they] were
working a double on midnights.” (Id.) The email lists a series of
tasks that Freeman may be unable to perform, including delivering
the composite samples by midnight, resetting equipment, performing
odor
surveys,
and
investigating
flood
calls.
(Id.)
Cummings
forwarded these concerns to Dring and Brian Deitz from the MWRDC
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Human Resources Department and stated that if Freeman installs a
Breathalyzer
Device
he
can
drive
his
own
vehicle
around
the
Stickney Plant. (Id. at 1.) If the Breathalyzer Device is not
installed, however, Cummings stated that “it is doubtful that
[Freeman] will be able to fulfill his job requirements and we
should not be assigning someone else to pick up the slack.” (Id.)
Deitz forwarded the email to Roxanne Bonner, a colleague in the
Human Resources Department, with an “FYI.” (Id.)
On August 24, 2015, two days before Freeman’s suspension went
into effect, Cummings reminded MWRDC personnel that Freeman would
not be permitted to drive any motorized vehicle on plant grounds.
(Bonner Email at 2.) He further stated that Freeman is “responsible
for doing all of his normal duties and no accommodation will be
made whereby his duties are shifted to another staff member.” (Id.)
Deitz forwarded this email to only Cummings, Dring, and Bonner and
reminded Cummings that the paperwork related to the Employment
Exemption should be submitted to Human Resources for completion
and not completed by the frontline supervisors. (Deitz Email at 3.)
Bonner responded and added that while a driver’s license is not an
“absolute requirement” it is “convenient for a TPO [I] to get
around the plant using a District vehicle.” (Id.) Bonner then
forwarded the entire email chain to the MWRDC Human Resources
Director Denice Korcal and stated that she is “concerned about
this
situation.”
(Id.)
Bonner’s
concern
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focused
on
Freeman’s
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ability to collect the composite samples in a timely manner and
that Freeman may not be able to quickly respond to flooding. (Id.)
She further explained that “last year we terminated an employee
from an ET4 job down to an ET3 because he could not drive and
inspect construction sites.” (Id.) Korcal responded “Terminate.”
(Id.)
On August 26, 2015, Dring met with Freeman. (Bonner Email at
1.) During that meeting, Freeman again reported that he is eligible
for the Monitoring Permit following a statutory summary suspension
of his license for 30 days. (Id.) According to Dring, during this
meeting Freeman stated that the DUI was the result of a “lapse in
judgment.” (Id.) Freeman also informed Dring that he purchased a
bicycle and wheeled cooler to get around the plant and collect all
necessary samples. (Id.) According to Dring, a bicycle would be
“allowed in the plant . . . a couple of people brought their own
bike to work.” (Id.) Dring identified that there might an issue
with the collection of the “WS sample, but it seems the midnight
crew
can
work
around
this
until
he
obtains
the
‘employer
exemption.’” (Id.) Bonner forwarded this email to Korcal. (Deitz
Email at 5.) In response Korcal questioned, “Why are we treating
him differently than other employees?” (Id.)
D.
Freeman Continues Working During
His License Suspension
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Following his license suspension Freeman used a bicycle to
traverse the Stickney Plant and carry out his duties. (Stinson
Dep. 20:17–20.) Stinson testified that during the period Freeman
used his bicycle he failed to deliver the composite samples to the
lab before midnight on at least one occasion. (Id. 20:17–21:11.)
Thereafter, Freeman’s supervisors assigned other crew members to
drive Freeman around the plant to collect the composite samples
and deliver them to the lab. (DSOF ¶ 18.) This responsibility
typically fell to the TPO II on duty during the midnight shift.
(Deitz
Email
at
25.)
Freeman
accounted
for
thirty
minutes
performed
the
remainder
of
testified
of
his
an
that
this
eight-hour
duties
on
his
assistance
shift
own.
and
he
(Freeman
Dep. 79:1–6, 114:3–10.)
E. Freeman’s Termination
According to the District, termination typically occurs based
on a recommendation from the Human Resources Department with input
from the employee’s department head and the supervisory chain of
command. (Kosowski Rule 30(b)(6) Dep. 72:7–73:5, Def.’s Stmt. of
Facts, Ex. I, Dkt. No. 160-10.) On Friday, September 4, 2015,
Bonner reported that “the HR Department recommends the termination
of Mr. Freeman due to his inability to carry out his full range of
duties while on probation.” (Bonner Email at 1.) Cummings testified
that
he
was
not
consulted
regarding
Freeman’s
termination.
(Cummings Dep. 46:3–9.) Stinson also testified that he did not
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have any issues with Freeman’s performance and did not know about
his termination before it happened. (Stinson 35:8–15.)
In a memorandum dated September 9, 2015, Manju Sharma, MWRDC
Director
Executive
of
Maintenance
Director
St.
and
Operations,
Pierre
that
recommended
Freeman
be
to
MWRDC
terminated.
(Termination Mem., Pl.’s Stmt. of Facts, Ex. 14, Dkt. No. 164-15.)
According to the memo the “vast scale of the [Stickney plant]
requires the TPO Is to traverse long distances throughout the shift
. . . thereby making the ability to drive a de facto requirement
for
satisfactory
performance
of
the
job.”
(Id.
at
1.)
The
memorandum further states that MWRDC will not approve Freeman’s
request for the Employment Exemption because “given the nature of
the offense allowing him to drive an unmonitored District vehicle
would expose the District to unacceptable liability.” (Id.) At
some point thereafter, St, Pierre approved Freeman’s termination.
In a letter dated September 18, 2015, MWRDC informed Freeman that
his
services
“have
not
been
satisfactory”
and
it
had
been
recommended that his probationary period as a TPO I be terminated.
(Letter from David St. Pierre to Shaka Freeman (Sept. 18, 2015)
(“9/18/15 Ltr.”) at 1, Def.’s Stmt. of Facts, Ex. C, Dkt. No. 1604.) Freeman’s employment with MWRDC was terminated effective close
of business that same day. (Id.)
In a second letter dated September 25, 2015, MWRDC further
stated that Freeman’s DUI and loss of license had impacted his
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ability to perform the duties of his job. (Letter from Denice
Korcal to Shaka Freeman (Sept. 25, 2015) (“9/25/15 Ltr.”) at 1,
Def.’s Stmt. of Facts, Ex. A, Dkt. No. 160-2.) Specifically, MWRDC
stated that some of the TPO I duties require driving a vehicle,
including
process
“delivery
equipment,
of
samples
adjusting
to
the
the
laboratory,
West
Side
resetting
Relief
Gates,
responding to odor complaints by conducting an odor survey both in
the plant and at the location of the complaint, making rounds of
the plant, and conducting process control analysis of battery
and/or
outfall
ammonia.”
(Id.)
MWRDC
recognized
that
Freeman
purchased a bike in order to carry out his duties but reported
that he “still required assistance . . . from other employees”
given the large size of the Stickney Plant. (Id.) The letter also
acknowledged
Freeman’s
request
that
MWRDC
complete
Employment
Exemption paperwork, which would allow him to drive employer-owned
vehicles during his shift. (Id. at 1–2.) MWRDC again explained
that
it
declined
to
do
so
because
following
Freeman’s
DUI
conviction, “permitting [him] to drive an unmonitored District
vehicle would expose the District to unacceptable liability.” (Id.
at 2.)
F. Post-Termination
Illinois
restored
Freeman’s
driving
privileges
as
of
October 2, 2015. (Sec. of State Notice, Pl.’s Stmt. of Facts,
Ex. 17, Dkt. No. 164-18.) Freeman was also granted the Monitoring
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Permit, which was conditioned on the installation of a Breathalyzer
Device. (Monitoring Permit, Pl.’s Stmt. of Facts, Ex. 20, Dkt.
No. 164-21.)
Freeman
testified
that
he
did
not
install
a
Breathalyzer Device. (Freeman Dep. 176:9–23.) He explained that he
understood
that
the
State
privileges
even
without
of
the
Illinois
restored
installation
of
the
his
driving
Breathalyzer
Device. (Id.) In March 2016 Freeman pled guilty to the July 2015
DUI and his license was revoked. (PSOF ¶ 23.) As of September 23,
2020, Freeman’s driving privileges had not been restored. (Freeman
Dep. 158:22–159:13.)
Freeman resumed treatment with his EAP Counselor in February
2016.
(EAP
February
Case
18,
Notes
2016,
at
explain
2.)
Counselor
that
during
Williams’
that
notes
session
from
Freeman
admitted to problems with alcohol and that he reported being sober
for 80 days. (Id.) Later in 2016, Freeman received in-patient
treatment for alcohol and other drug abuse (“AODA”) through the
Gateway Foundation. (Gateway Foundation Records, PSOF, Ex. 19,
Dkt. No. 164-20.) Freeman was discharged from his in-patient
treatment on June 30, 2016. (Id. at 5.)
Since his termination from MWRDC, Freeman has not held another
position in the wastewater industry. (Freeman Dep. 150:21–151:1.)
Freeman testified that he has struggled to find steady employment
and has only worked in short term positions. (Id. 148:3–149:4.) As
of
September
2020,
Freeman’s
most
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recent
position
was
a
QA
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technician for Ferrara Candy. (Id. 153:7–15.) He held that position
from September 2019 through February 2020. (Id. 154:5–9.)
G. Procedural Posture
Freeman filed this action in June 2017. (Dkt. No. 1.) Five
sprawling complaints later, the Court dismissed the action with
prejudice in November 2018. (Dkt. No. 111.) On appeal, the Seventh
Circuit vacated the Court’s dismissal in part and remanded for
further proceedings. Freeman v. Metro. Water Reclamation Dist. Of
Greater Chicago, 927 F.3d 961, 965–66 (7th Cir. 2019). On remand,
the Court granted Freeman leave to file a Fifth Amended Complaint.
(Dkt. No. 137.) Freeman filed the Fifth Amended Complaint on
October 15, 2019. (Dkt. No. 138.) The Fifth Amended Complaint
asserts four claims against the District. The claims omit Count I
and are labeled Counts II–V. Count II alleges MWRDC discriminated
against Freeman on this basis of his disability, in violation of
42 U.S.C. § 12112(a). Count III alleges MWRDC failed to provide
Freeman with a reasonable accommodation for his disability, in
violation of 42 U.S.C. § 12112(a). Count IV alleges that Freeman’s
termination was retaliation for requesting an accommodation under
the ADA, in violation of 42 U.S.C. § 12203(a). Count V alleges
that MWRDC discriminated against Freeman on the basis of race, in
violation of 42 U.S.C. § 2000e-2(a)(2).
On
February
26,
2021,
MWRDC
moved
for
summary
judgment
pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 159.) On
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April 3, 2021, Freeman filed a cross motion for partial summary
judgment pursuant to Rule 56. (Dkt. No. 165.) Freeman moves as to
three issues: (1) whether Freeman was disabled under the ADA; (2)
whether MWRDC was aware of Freeman’s disability; and (3) MWRDC
accommodated Freeman then withdrew the accommodation in violation
of the ADA. The Court now decides both motions.
II. LEGAL STANDARD
Summary judgment is appropriate if there is “no genuine
dispute of material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). A fact is “material” when
identified by substantive law as affecting the outcome of the suit.
Bunn v. Khoury Enters., Inc., 753 F.3d 676, 681 (7th Cir. 2014).
An issue is genuine when the evidence presented is such that a
reasonable jury could return a verdict for the nonmoving party.
Id. at 681–82. When reviewing the record on a summary judgment
motion,
the
Court
must
view
the
facts
and
draw
reasonable
inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007). If, however, the factual
record cannot support a rational trier of fact to find for the
non-moving party, summary judgment is appropriate. Bunn, 753 F.3d
at 682. On cross-motions for summary judgment, “[t]he ordinary
standards for summary judgment remain unchanged” and the Court
construes “all facts and inferences arising from them in favor of
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the party against whom the motion under consideration is made.”
Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017).
III. DISCUSSION
A. The Americans with Disabilities Act
Freeman argues that MWRDC violated the ADA by failing to
provide him with reasonable accommodations for his alcohol use
disorder and subsequently terminating his probationary employment.
A threshold question for each of Freeman’s claims is whether he is
a “qualified individual with a disability” and thus protected by
the ADA. 42 U.S.C. § 12112(a). The Court first addresses whether
the ADA applies to Freeman, and then reviews the summary judgment
motions applicable to each of the three ADA counts in Freeman’s
Fifth Amended Complaint.
For the reasons set forth below, Freeman’s Motion for Partial
Summary Judgment is denied. The District’s Motion for Summary
Judgment is granted as to Counts III and IV and denied as to
Count II.
1. Applicability of the ADA
The ADA prohibits an employer from discriminating against a
“qualified individual with a disability” on this basis of that
disability. 42 U.S.C. § 12112(a). To succeed on his ADA claims,
Freeman must first demonstrate that he falls within the definitions
of “disability” and “qualified individual” set out in the Act. For
the reasons set forth below, issues of material fact exist as to
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whether Freeman falls within the scope of either definition.
Summary judgment is therefore not appropriate on either of these
grounds.
a. Disability
Under the ADA “disability” is defined in three ways: “[1] a
physical or mental impairment that substantially limits one or
more major life activities of such individual; [2] a record of
such an impairment; or [3] being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). Freeman has moved for summary
judgment on the issue of whether he falls within ADA’s definition
of disability. As a result, the Court’s analysis of this issue
takes the facts in the light most favorable to MWRDC. For the
reasons set forth below, Freeman’s motion is denied.
For Freeman to fall under the first two prongs of the ADA’s
definition of “disability,” he must first present evidence that he
has a physical or mental impairment or a record of such impairment.
Freeman’s records from the Gateway Foundation evidence that in
2016 he was diagnosed with and sought treatment for alcohol abuse.
Alcohol abuse constitutes a mental impairment that may be protected
by the ADA. Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 670
(7th Cir. 2011). While the first record of Freeman’s AUD diagnosis
post-dates
the
at-issue
conduct,
the
notes
from
Freeman’s
counseling sessions in 2015 indicate that the onset of his AUD
predates even his July 11, 2015 DUI. Counselor Williams’ proposed
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treatment plan, based on Freeman’s first session, included alcohol
counseling and Freeman attending AA. Later Counselor Williams
noted that Freeman is in “denial of alcohol problem.” (EAP Notes
at 1.) The Court thus concludes that there is sufficient evidence
in the record to find that Freeman suffered from an impairment of
AUD in July 2015.
An AUD diagnosis is not the end of the analysis with respect
to the first two definitions of “disability” under the ADA. Freeman
must further show that his impairment “substantially limits one or
more major life activities.” 42 U.S.C. § 12102(1). A major life
activity includes, but is not limited to, “seeing, hearing, eating,
sleeping,
breathing,
walking,
standing,
learning,
lifting,
reading,
bending,
concentrating,
speaking,
thinking,
communicating, and working.” Id. § 12102(2)(A). Freeman argues
that his AUD caused him to lose his driver’s license. His inability
to drive has in turn substantially limited his ability to work, a
major life activity. Id.; see also Winsley v. Cook Cty., 563 F.3d
598, 604 (7th Cir. 2009) (holding that the inability to drive
“could create a disability if it caused an impairment of a major
life
activity”).
In
response,
MWRDC
argues
that
Freeman’s
inability to drive is a consequence of his DUI and thus any
limitation on his ability to work is not caused by his AUD. The
Court agrees with MWRDC.
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Freeman urges the Court to accept the following causal chain
between his AUD and license suspension: AUD caused Freeman to drive
while intoxicated, his citation for driving while intoxicated
caused his license to be suspended, his license suspension resulted
in his need for accommodations to continue working, and instead of
the District making those accommodations, it terminated Freeman.
The Seventh Circuit has, however, already rejected this tenuous
causal chain. Despears v. Milwaukee, 63 F.3d 635, 636 (7th Cir.
1995). Driving while intoxicated is not synonymous with an AUD
diagnosis. Id. As recognized in Despears, “alcoholics are capable
of
avoiding
driving
drunk.”
Id.
(emphasis
in
original).
Consequently, it was Freeman’s choice to drive while intoxicated
that caused him to lose his license, not any compulsion resulting
from his AUD. Id. As a result, Freeman’s major life activity of
working was impaired by the consequences of his decision to drive
while intoxicated, not his AUD. For this reason, Freeman’s ADA
claims cannot proceed under prongs 1 and 2 of the Act’s definition
of “disability.”
The third definition of “disability” protects a different set
of
individuals,
those
who
have
been
“regarded
as”
having
an
impairment. 42 U.S.C. § 12102(1). Freeman is “regarded as” having
a disability if he “establishes that he . . . has been subjected
to an action prohibited [by the ADA] because of an actual or
perceived
physical
or
mental
impairment
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whether
or
not
the
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impairment limits or is perceived to limit a major life activity.”
Id. § 12102(3). Freeman argues that MWRDC’s refusal to grant him
the Employment Exemption or allow him to drive golf carts and
Gators while his license was suspended demonstrates that the
District regarded him as having a problem with alcohol so severe
he was unfit to operate a motor vehicle without a Breathalyzer
Device. In response MWRDC argues that its decision to restrict
Freeman’s driving on MWRDC property was based on his license status
and not a belief that he had a problem with alcohol.
The question for the Court is whether there is an issue of
material fact as to whether MWRDC perceived Freeman to have an
alcohol-related impairment. An immediate consequence of Freeman’s
DUI
charge
was
a
six-month
suspension
of
his
license.
MWRDC
rejected two separate solutions to the issues posed by Freeman’s
suspended license: (1) allowing him to operate golf carts and
Gators (which do not require a driver’s license when operated on
private property, see 625 ILCS 5/11-1426.1(b-5) (requiring a valid
driver’s license to operate golf carts and Gators on streets,
highways,
or
roadways))
and
(2)
granting
him
the
Employment
Exemption which would allow him to drive District-owned vehicles
during work hours. MWRDC’s stated reason for these denials was
that based on “the nature of the offense allowing [Freeman] to
drive an unmonitored District vehicle would expose the District to
unacceptable liability.” (Termination Mem. at 1.) Instead MWRDC
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stated
that
property,
Freeman
provided
could
a
operate
Breathalyzer
his
own
Device
vehicle
was
on
MWRDC
installed.
This
solution, however, could not be implemented until Freeman served
the required 30-day suspension, after which time he could be
granted the Monitoring Permit and install the Breathalyzer Device.
By
its
own
statement,
MWRDC’s
concern
about
liability
exposure is rooted in the nature of the offense: driving while
intoxicated. Specifically, that Freeman might operate a Districtowned vehicle while under the influence. The record is not clear,
however, whether this liability concern applied to all MWRDC
employees that faced a DUI-related license suspension or if there
was a specific perception that Freeman’s problem with alcohol was
likely to impair his ability to drive absent the Breathalyzer
Device. For example, when Bonner informed Human Resources Director
Korcal of Freeman’s situation and expressed concern about his
ability to do his job, Korcal immediately recommended termination,
Later
Korcal
differently
questioned
than
other
why
MWRDC
employees”
was
“treating
by
attempting
[Freeman]
to
find
workarounds for his license suspension. (Deitz Email at 5). These
responses
from
Korcal
suggest
that
termination
under
these
circumstances was a routine practice.
Freeman, however, was given a different impression. Freeman
testified
that
Stinson
assured
him
that
his
job
was
not
in
jeopardy. In addition, none of the conversations with Stinson,
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Donnelly, Cummings, or Dring even suggest termination as a possible
solution
for
Freeman’s
current
situation.
Instead,
Freeman’s
immediate supervisors implemented temporary solutions to avoid any
disruptions on the midnight shift during Freeman’s 30-day license
suspension. The record also includes evidence of seventeen other
MWRDC employees who were disciplined in connection with a driver’s
license
suspension.
(Discipline
Chart,
Pl.’s
Stmt.
of
Facts,
Ex. 13, Dkt. No. 164-14.) The limited data presented regarding the
District’s treatment of these employees reflects that some were
granted Employment Exemptions in connection with their Monitoring
Permit, while others were not. (Id.) These facts suggest that
termination was not the District’s standard practice for alcoholrelated driver’s license suspensions.
Based on the current record, there is a question of fact
whether MWRDC’s treatment of Freeman was consistent with similar
alcohol-related license suspensions or based on a perception that
Freeman
suffered
from
a
serious
alcohol-related
impairment.
Consequently, there is an issue of material fact as to whether
MWRDC regarded Freeman as having an alcohol-related impairment,
thus placing him within the scope of the “regarded as” definition
of “disability” under the ADA. See EEOC v. Staffmark Inv. LLC, 67
F.Supp.3d 885, 895 (N.D. Ill. 2014) (finding factual dispute as to
whether an employer regarded an employee as having a disability).
Freeman’s Motion for Summary Judgment on the issue of whether he
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is disabled under the ADA is therefore denied. Further proceedings
on this matter may, however, focus only on the third prong of the
ADA’s definition of “disability.”
b. Qualified Individual
Having
concluded
that
there
remains
a
genuine
issue
of
material fact on the issue of whether Freeman meets the third
definition of disability under the ADA, the Court turns to whether
Freeman is a “qualified individual.” The ADA defines “qualified
individual” as “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). To determine whether Freeman falls within this
definition the Court undertakes a two-part test. First, the Court
considers whether Freeman satisfies the prerequisites for the
TPO I
position,
including
“educational
background,
employment
experience, particular skills and licenses.” Rodrigo v. Carle
Found. Hosp., 879 F.3d 236, 241-42 (7th Cir. 2018) If Freeman
satisfies the first prong, the Court will “turn to the question of
whether [Freeman] can perform the essential functions of the job
with or without reasonable accommodation.” Id. at 242. It is
undisputed that Freeman holds a Class Three Wastewater Treatment
Operator certification and satisfies the prerequisites for the
TPO I position.
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In order to make a determination regarding the second prong,
the Court first identifies the essential functions of the TPO I
position. Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 285
(7th Cir. 2015). Once identified, the Court reviews whether Freeman
can
perform
those
essential
functions
with
or
without
an
accommodation. Id. at 286. The parties dispute whether driving a
motor vehicle is an essential function of the TPO I position. MWRDC
argues that driving is an essential function that Freeman is unable
to do without a valid driver’s license. Freeman argues that driving
a motor vehicle is not an essential function, and therefore even
without a driver’s license he is able to perform the essential
functions of the TPO I job.
To determine whether something is an essential function, the
ADA instructs that “consideration shall be given to the employer’s
judgment as to what functions of a job are essential, and if an
employer has prepared a written description . . . this description
shall be considered evidence of the essential functions of the
job.” 42 U.S.C. § 12111(8). This deference to the employer’s
judgment
is
an
important
factor,
but
it
is
not
dispositive.
Bilinsky v. Am. Airlines, Inc., 928 F.3d 565, 570 (7th Cir. 2019).
The Court will also consider the amount of time spent on the task,
the
consequences
of
the
task
not
being
performed,
and
the
employer’s actual practices in the workplace. Id.; Shell v. Smith,
789 F.3d 715, 718 (7th Cir. 2015).
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In this case, the job description does not list a driver’s
license as a requirement for the TPO I position. The pertinent
question
is
one
step
further
removed:
whether
the
essential
functions listed are able to be completed absent a license. The
essential functions of the TPO I position are: collection of
samples and timely delivery to the laboratory, resetting process
equipment, adjusting the West Side relief gates, responding to
odor complaints, making rounds of the plant, investigating flood
calls, responding to emergency weather events, and conducting
control analysis of battery and/or outfall ammonia.
MWRDC argues that driving a vehicle is necessary to carry out
each of the agreed upon TPO I essential functions. In support,
MWRDC first points out that the job site covers more than 400
acres, and the agreed upon TPO I essential functions span the
entire plant. For example, on midnights the TPO I is required to
collect 11 to 12 composite samples in 2.5 to 5-gallon jugs. These
samples are scattered throughout the plant and need to be returned
to the lab by midnight. MWRDC argues that the timely collection of
these scattered samples relies on efficient movement throughout
the plant, and the weight and size of these samples necessitates
using a car. Moreover, in an emergency situation the TPO I is
required to arrive in an affected area at a moment’s notice. The
District notes that the plant was designed with streets intended
for car travel up to 20 miles per hour, evidencing the intention
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for Stickney Plant employees to traverse the grounds in a motor
vehicle. MWRDC also argues that the TPO I’s duties are not confined
to the Stickney Plant. TPO Is are required to investigate odor
complaints made by members of the community served by the Stickney
Plant. Responding to an odor complaint could require Freeman to
travel up to five miles offsite, a task he would be unable to
complete in a timely manner if he was not utilizing a motor
vehicle.
The record also includes testimony from another TPO I who
stated that his practice, and his observations of others in the
same role, was to use a car to travel around the Stickney Plant.
As set forth in emails from two Stickney Plant TPO IIIs, some
supervisory employees also viewed the ability to drive as vital to
successfully performing the duties of a TPO I. Bonner’s emails
also evidence the District’s sincere impression that operating a
motor vehicle was necessary for a TPO I. This evidence, MWRDC
argues, demonstrates that driving a motor vehicle is the singular
means by which a TPO I can successfully carry out each of its
essential
functions.
According
to
MWRDC,
Freeman’s
license
suspension made it so that he was unable to perform this essential
function and is therefore not a qualified individual under the
ADA.
In response, Freeman argues that he can perform each of the
agreed upon essential job functions without using a motor vehicle.
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According to Freeman, the essential functions of a TPO I can be
accomplished using Gators or golf carts, a bicycle, or on foot.
Freeman acknowledged that prior to his license suspension he used
a vehicle to pick up composite samples. He testified that when
using a motor vehicle this collection accounted for approximately
30 minutes of an eight-hour shift. He conceded that using a bicycle
with a cooler would take longer than 30 minutes but testified that
the collection could still be accomplished by midnight.
Freeman further testified that even before his license was
suspended, after collecting the composite samples he typically
spent the majority of his shift on foot, walking the Stickney
Plant. Freeman also explained that while responding to an odor
complaint may require a TPO I to leave the plant, it is MWRDC’s
policy to respond to those complaints during business hours.
Because he worked the midnight shift this was not part of his
typical job responsibilities. He testified that during the four
months he was employed, he was never called to respond to an odor
survey off the plant grounds. Indeed, the record reflects that in
2015, MWRDC responded to more than 150 odor complaints. (Odor
Complaint Paperwork, Pl.’s Stmt. of Facts, Ex. 8, Dkt. No. 1649.) During that time, only two such complaints were investigated
by the crew on the midnight shift. (Id. at 71, 74.) The first
occurred on July 30, 2015, and the second on August 3, 2015, both
while Freeman remained employed by MWRDC and held a valid driver’s
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license. (Id.) Even so, Freeman did not conduct either of these
off-site odor inspections. (Id.) Finally, Freeman notes MWRDC
Human Resources acknowledged that a driver’s license is not an
“absolute
requirement”
for
a
TPO
I
and
instead
said
it
is
“convenient for a TPO to get around the plant using a District
vehicle.” (Deitz Email at 3.)
The evidence presented by Freeman is sufficient to create a
question of material fact regarding whether driving is an essential
function of the TPO I position. For example, Stinson’s solution
during Freeman’s 30-day suspension was not to assign a colleague
to
drive
him
around
through
the
entire
shift.
Instead,
the
coworker’s assistance was limited to driving Freeman to pick up
and drop off the composite samples. Freeman testified that this
task
encompassed
just
30
minutes
of
an
eight-hour
shift.
In
addition, collection of composite samples is just one of the many
essential functions of a TPO I. While use of a motor vehicle may
be the District’s preferred way to carry out that particular aspect
of the job that does not mean it is a necessary component of the
entire TPO I position. The Court therefore concludes that there
remains a question of material fact as to whether driving was an
essential function of the TPO I position. See Gresham-Walls v.
Brown, 2014 WL 6685478, at *8 (N.D. Ill. Nov. 25, 2014) (find a
question of fact where there was “some evidence in the record that
[the disputed] duties were not necessarily essential functions”).
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The current record is also insufficient to establish that
Freeman was unable to carry out the essential functions, including
or excluding driving, with or without reasonable accommodations.
MWRDC agreed to allow Freeman to drive his own Breathalyzer Deviceequipped vehicle around the Stickney Plant. Accordingly, Freeman
was
only
unable
to
drive
during
the
30-day
period
prior
to
receiving his Monitoring Permit which allowed him to drive a
Breathalyzer Device-equipped vehicle. The Court therefore focuses
on Freeman’s performance during the 30 days he was completely
unable to drive.
If driving is not an essential function, then Freeman must
show he is able complete the remaining essential functions with or
without a reasonable accommodation. The current record does not
establish
whether
Freeman
was
able
to
perform
the
essential
functions of a TPO I without any accommodations.
The record similarly does not establish whether Freeman was
able
to
do
the
job
with
reasonable
accommodations.
Federal
Regulations define a reasonable accommodation as “modifications or
adjustments
to
circumstances
the
under
work
environment,
which
the
position
or
to
held
the
or
manner
or
desired
is
customarily performed, that enable an individual with a disability
who
is
qualified
position.”
29
to
C.F.R.
perform
§
the
essential
1630.2(o)(ii).
functions
According
to
of
that
the
ADA
reasonable accommodations can include: “job restructuring, part- 31 -
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time or modified work schedules, reassignment to a vacant position,
acquisition or modification of equipment or devices . . . and other
similar accommodations[.]” 42 U.S.C. § 12111(9). The record is
silent as to whether assigning a coworker to assist Freeman for a
period of 30 days is a reasonable accommodation. As a result, the
Court is unable to draw a conclusion on this issue.
For all these reasons, the Court concludes that disputed
issues of material fact exist as to whether Freeman could carry
out
the
essential
functions
with
or
without
a
reasonable
accommodation. Because there are issues of material fact as to
both elements of the “qualified individual” analysis, summary
judgment on this issue of whether he is a “qualified individual”
is not appropriate.
2. ADA Claims (Counts II–IV)
Freeman brings three claims under the ADA. The threshold issue
for these ADA claims is whether Freeman falls within the scope of
the ADA’s protections. As discussed above, the ADA only protects
Freeman if he is a “qualified individual with a disability” as
defined by the Act. Having concluded that questions of material
fact exist as to these threshold questions of applicability, the
Court now considers whether it may grant the District’s Motion for
Summary Judgment on the ADA claims, Counts II–IV. For the reasons
set forth below, the Court grants the District’s Motion for Summary
Judgment as to Counts III and IV and denies the Motion as to
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Count II. The Court also considers and denies Freeman’s Motion for
Summary Judgment on the following issues: (1) whether MWRDC was
aware of Freeman’s disability and (2) MWRDC accommodated Freeman
then withdrew the accommodation in violation of the ADA.
a. Disability Discrimination (Count II)
Count
II
of
the
Fifth
Amended
Claim
alleges
that
MWRDC
discriminated against Freeman on the basis of his disability when
it fired him in August 2015. MWRDC has moved for summary judgment
on Count II.
To state a claim for disability discrimination, Freeman must
prove that (1) he was disabled; (2) he was qualified to perform
the essential functions of his job with or without reasonable
accommodation; and (3) that his disability was the “but for” cause
of the adverse employment action. See Castetter v. Dolgencorp,
LLC, 953 F.3d 994, 996 (7th Cir. 2020). The first two elements are
the threshold issues of whether Freeman is a “qualified individual
with
a
disability.”
Section
III.A.1,
supra,
analyzed
these
elements, including Freeman’s Motion for Summary Judgment on the
issue of whether he is disabled under the ADA, and concluded that
there are questions of material fact that preclude granting summary
judgment on those grounds. This Section focuses on the final
element and reviews whether there is sufficient evidence in the
record such that a jury could find there was a causal relationship
between
MWRDC
regarding
Freeman
as
- 33 -
having
an
alcohol-related
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impairment and his subsequent termination. The Court views the
evidence in the light most favorable to Freeman. For the reasons
that follow, MWRDC’s motion is denied as to Count II.
The ultimate question for the third element of a disability
discrimination claim is whether there is evidence that “would
permit
a
reasonable
factfinder
to
conclude
that
[Freeman’s
disability] . . . caused the discharge.” Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016). Viewing the record in the
light most favorable to Freeman, the Court concludes that such
evidence exists.
While there is no dipositive evidence, the record reflects
sufficient
mental
proof
impairment
termination.
The
that
the
could
Court
District’s
be
the
notes
perception
but-for
there
cause
were
of
of
Freeman’s
his
later
essentially
two
discussions regarding Freeman’s temporary inability to drive. The
first includes his immediate supervisors, Stinson and Donnelly,
and their supervisors Cummings and Dring. These four supervisors
discussed the practical problems that resulted from Freeman’s DUI.
From these conversations it is clear that Stinson and Donnelly
anticipated Freeman would be unable to drive for only 30 days.
After the 30 days, they expected Freeman to have a Breathalyzer
Device installed on his personal vehicle and to use that vehicle
on
the
job.
Freeman’s
own
testimony
also
reflects
that
his
supervisors did not find the loss of his license to be a job- 34 -
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ending situation. This is supported by the fact that Stinson and
Donnelly identified a temporary solution and assigned another
midnight shift coworker to drive Freeman to pick-up the composite
samples.
This
arrangement
was
in
effect
from
sometime
after
August 26, 2015 until Freeman’s termination on September 18, 2015.
The second conversation was led by Human Resources, largely
Bonner
and
Deitz.
deficiencies
in
This
Freeman’s
discussion
work
as
focused
a
result
on
hypothetical
of
his
license
suspension. For example, on August 24, 2015, two days prior to
Freeman’s license suspension, Bonner expressed her hypothetical
concerns in an email to Korcal. In response Korcal recommended
termination. This email correspondence continued intermittently
throughout
Freeman’s
30-day
suspension,
culminating
in
Human
Resources’ September 4, 2015 recommendation that Freeman be fired,
“due to his inability to carry out his full range of duties while
on probation.” (Bonner Email at 1.). The record, however, does not
evidence that Freeman’s immediate supervisors or anyone in his
supervisory
chain
of
command
was
consulted
regarding
Human
Resources’ recommendation. To the contrary, Stinson testified that
he had no concerns about Freeman’s work. And both Stinson and
Donnelly testified that they were not consulted regarding the
decision to terminate.
Based on the record before this Court, the disconnect between
Freeman’s
actual
ability
to
do
his
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job
and
the
hypothetical
Case: 1:17-cv-04409 Document #: 177 Filed: 09/21/21 Page 36 of 45 PageID #:4931
concerns of MWRDC Human Resources could allow a reasonable juror
to conclude that the decisionmakers were not aware of any actual
performance deficiencies and based their decision solely on their
perception of his disability. See Myers v. Wickes Furniture Co.,
2012
WL
567377,
at
*8
(N.D.
Ill.
Feb.
21,
2012)
(finding
discrepancies between an employee’s evaluations and the stated
reasons for termination, combined with email traffic regarding the
employee’s disability could allow a reasonable jury to conclude
that the employer discriminated on the basis of disability). For
these reasons, summary judgment is denied as to Count II.
b. Failure to Accommodate (Count III)
Count III alleges that MWRDC failed to accommodate Freeman’s
disability in violation of the ADA. MWRDC has moved for summary
judgment on Count III. Freeman cross motioned for summary judgment
on the issue of whether MWRDC accommodated Freeman until it decided
to longer accommodate him in violation of the ADA.
To state a failure to accommodate claim, Freeman must prove
that (1) he is a qualified individual with a disability; (2) MWRDC
was aware of the disability; and (3) MWRDC failed to reasonably
accommodate that disability. Connors v. Wilkie, 984 F.3d 1255,
1260–61 (7th Cir. 2021). If Freeman establishes the prima facie
elements of the claim, the burden shifts to MWRDC “to prove that
the requested accommodation would impose an undue hardship.” Id.
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at 1261. For the reason that follows, Freeman’s motion is denied
and MWRDC’s motion is granted as to Count III.
Count III fails because Freeman is unable to establish the
third element as a matter of law. The 2008 amendments to the ADA
clarified
that
employers
“need
not
provide
a
reasonable
accommodation or a reasonable modification to policies, practices,
or
procedures
disability
to
solely
an
individual
under”
the
who
meets
“regarded
as”
the
definition
prong.
42
of
U.S.C.
§ 12201(h). Following this amendment, courts in this Circuit have
recognized that failure to accommodate claims cannot be pursued by
individuals proceeding under the “regarded as” prong of the ADA.
See, e.g., Jenkins v. Chicago Transit Auth., 2020 WL 868535, at *7
n.5 (N.D. Ill. Feb. 20, 2021); Taylor v. AM General LLC, 2020 WL
1274862, at *3 (N.D. Ind. Mar. 16, 2020); Cozad v. Ill. Dept. of
Corr., 2018 WL 2758261, at *11 (C.D. Ill. Apr. 17, 2018).
The Court already concluded that Freeman’s ADA claims may
only proceed under the “regarded as” prong of the ADA’s definition
of
disability,
Section
III.A.1,
supra.
Freeman’s
failure
to
accommodate claim is therefore barred by the Act and the Court
grants MWRDC’s Motion for Summary Judgment as to Count III. For
this same reason, Freeman’s Motion for Summary Judgment as to
whether MWRDC accommodated Freeman until it decided to longer
accommodate him in violation of the ADA is denied.
c. Retaliation (Count IV)
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Count IV alleges MWRDC terminated Freeman for requesting
reasonable
accommodations
in
violation
of
the
ADA’s
anti-
retaliation provision. 42 U.S.C. § 12203. The District moved for
summary judgment on Count IV and therefore the Court views the
evidence in the light most favorable to Freeman. Freeman moved for
summary judgment on the issue of whether MWRDC was aware of his
disability. When considering that issue, the Court views the
evidence in the light most favorable to the District.
An ADA retaliation claim requires proof of three elements:
(1) Freeman engaged in a statutorily protected activity; (2)
Freeman
suffered
an
adverse
employment
action;
and
(3)
the
protected activity caused the adverse action. Freelain v. Vill. of
Oak Park, 888 F.3d 895, 901. Neither party disputes that Freeman’s
termination is an adverse employment action that satisfies the
second element. This Section therefore focuses on the first and
third elements. For the reasons set forth below, MWRDC’s Motion
for Summary Judgment on Count IV is granted. Freeman’s motion
regarding the District’s knowledge of his disability is denied.
The first element requires proof that Freeman engaged in a
protected
activity.
An
individual
engages
in
a
statutorily
protected activity under the ADA when they seek an accommodation
or raise a claim of discrimination due to their disability. Preddie
v. Bartholomew Cons. School Corp., 799 F.3d 806, 814–15 (7th Cir.
2015). Because Freeman’s claims of discrimination arose after his
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termination, the only way that Freeman could have experienced
retaliation is if he sought an accommodation under the ADA.
Freeman argues that during the August 18, 2015 meeting with
Stinson and Donnelly, he informed his supervisors that he was
seeking
treatment
for
AUD
through
the
EAP
and
requested
accommodations for this impairment. Freeman testified that Stinson
shut down further conversation on the topic. In response, MWRDC
argues that Freeman did not engage in a protected activity because
he never informed the District of his enrollment in the EAP, let
alone his AUD diagnosis. The District, therefore, did not interpret
the August 18 meeting as seeking protection under the ADA. In
support of this argument, MWRDC points to Stinson’s email following
the August 18 meeting, where he indicated he had referred Freeman
to the EAP and makes no mention of Freeman’s prior enrollment. The
District further explains that none of the employees reported
Freeman’s request to the ADA Coordinator and no ADA file was opened
for Freeman.
A review of the record also reveals that in August 2015
Freeman’s EAP counselor, Williams, noted that Freeman was in denial
about his problem with alcohol, casting doubt on his admission of
such a problem to his supervisors. In addition, Dring recounted
that during his August 24, 2015 meeting with Freeman, Freeman
explained that the DUI was the result of a lapse in judgment. The
Court
cannot
weigh
conflicting
evidence
- 39 -
or
make
credibility
Case: 1:17-cv-04409 Document #: 177 Filed: 09/21/21 Page 40 of 45 PageID #:4935
determinations on a motion for summary judgment. Omnicare, Inc. v.
UnitedHealth Group, Inc., 629 F.3d 697, 704 (7th Cir. 2011). And
although the contemporaneous record may favor MWRDC, Freeman’s
testimony is sufficient to create a question of material fact as
to MWRDC’s actual knowledge of his AUD. See Midland State Bank v.
United States, 2021 WL 1172705, at *9 (N.D. Ill. Mar. 29, 2021)
(denying summary judgment, in part, because the Court could not
weigh
the
credibility
of
deposition
testimony
against
other
contemporaneous records).
For these reasons, Freeman’s Motion for Summary Judgment on
the issue of MWRDC’s knowledge of his disability is denied. In
addition, because there is an open question of material fact as
the District’s knowledge of Freeman’s AUD, there is also an open
question as to whether Freeman engaged in a statutorily protected
activity. Consequently, there is a question of fact as to the first
element of Count IV.
The third element requires a causal relationship between
Freeman’s
request
for
accommodations
and
his
termination.
As
discussed in Section III.A.2 supra, the record does not reflect
any significant disruption to the midnight crew’s work after
Freeman’s license was suspended. Despite this, the stated reason
for Freeman’s termination was his inability to carry out the full
extent
of
his
duties.
The
disconnect
between
the
reality
of
Freeman’s performance and the stated reason for termination raises
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a question of fact as to the cause of Freeman’s termination. The
existence of such a question, however, is not enough to survive
summary judgment on the retaliation claim. Instead, Freeman must
go one step further and identify facts in the record that suggest
MWRDC’s
decision
to
terminate
was
caused
by
his
request
for
accommodations.
The timeline is undisputed: Freeman first discussed his DUI
and
license
suspension
on
August
18,
2015.
The
initial
recommendation to terminate Freeman was made on September 4, 2015
and the official termination occurred on September 18, 2015.
Freeman argues that based on these facts, he would not have been
terminated if he had not disclosed his disability and requested
accommodations. But timing alone is typically insufficient to
survive summary judgment. Kotaska v. Fed. Express Corp., 966 F.3d
624, 633 (7th Cir. 2020). Neither is simply pointing to the
decisionmakers’ knowledge that Freeman sought accommodations. Id.
Instead
Freeman
must
identify
circumstantial
evidence
of
retaliation in the record, which he failed to do. Id.
For these reasons, even if the first element resolves in his
favor, Freeman has not established that there is a triable issue
on causation. The District’s Motion for Summary Judgment is granted
as to Count IV.
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B. Title VII Discrimination Claims (Count V)
Title VII of the Civil Rights Act of 1968 makes it unlawful
for
employers
to
“to
deprive
any
individual
of
employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(2). Count V alleges
that Freeman was denied an accommodation on the basis of his race
in violation of Title VII. At summary judgment the Court undertakes
a single inquiry and after considering the record as a whole
determines
“whether
the
evidence
would
permit
a
reasonable
factfinder to conclude that the plaintiff’s race . . . caused the
discharge or other adverse employment action.” Ortiz, 834 F.3d at
765. MWRDC has moved for summary judgment as to this count, so the
Court views the evidence in the light most favorable to Freeman.
For the following reasons, the Court finds there is insufficient
evidence
for
a
factfinder
to
conclude
that
MWRDC
failed
to
accommodate Freeman on the basis of his race and summary judgment
is granted as to Count V.
The Fifth Amended Complaint alleges that “similarly situated
Caucasian
employees
having
lost
their
drivers
licenses
were
provided alternative methods to complete their work for [MWRDC].”
(Fifth Am. Compl. at 7.) MWRDC argues that Freeman has failed to
substantiate this allegation because the comparator group is not
comparable
to
Freeman
in
in
all
- 42 -
material
respects.
Freeman
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acknowledges that there are material differences between himself
and his comparator group but argues that there are still instances
of
probationary
employees
who
experienced
a
driver’s
license
suspension but were not terminated. He further argues that there
is
evidence
that
MWRDC
granted
the
Employment
Exemption
to
Caucasian employees, while he was denied this accommodation. The
Court addresses each of these arguments below.
The record includes evidence of 17 employees, other than
Freeman,
who
experienced
a
driver’s
license
suspension
or
revocation during their employment with MWRDC. Of that group only
three other employees had probationary status at the time of their
license suspension. Two of those employees, George Lemon, a Black
male, and Anthony Rendon, a Hispanic male, were terminated from
their positions. Lemon and Rendon, however, had already achieved
Civil
Service
status
in
another
position
with
the
District.
Consistent with the Civil Service rules, upon termination of their
probationary
previously
status
attained
Lemon
and
Civil
Rendon
Service
were
returned
positions.
to
The
their
third
probationary employee, Anthony Johnson, a Black male, received a
five-day suspension. While Johnson’s treatment was, on its face,
different from Freeman, because Freeman and Johnson are both Black
men, the disparate treatment between the two workers cannot form
the basis for a Title VII claim.
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A
similar
reason
forecloses
Freeman’s
arguments
alleging
MWRDC considered race when granting or denying the Employment
Exemption. Of the 17 employees identified as having suspended or
revoked
driver’s
license,
six
were
granted
the
Employment
Exemption: 4 Black men, 1 white man, and 1 race unknown. (MWRDC
Employment Exemption Examples, Pl.’s Stmt. of Facts, Ex. 9, Dkt.
No. 164-10 (Employment Exemptions for Cook, Johnson-Bey, Smith,
Prior, Barnett, and Stover); Discipline Chart at 1.) Contrary to
Freeman’s argument, the record does not reflect that the Employment
Exemption was only given or even disproportionately given to
Caucasian employees. As a result, this argument also fails as a
basis for a Title VII claim.
The Court’s review of the remaining record shows that it is
devoid of any direct or indirect references to Freeman’s race or
anything that could give rise to the inference that race was a
motivating
factor
in
MWRDC’s
treatment.
The
Court
therefore
concludes that a reasonable factfinder could not conclude MWRDC
denied Freeman an accommodation, or took any action, on account of
his race. Summary judgment is therefore granted as to Count V.
IV.
CONCLUSION
For the reasons stated herein, Freeman’s Motion for Partial
Summary Judgment (Dkt. No. 165) is denied. MWRDC’s Motion for
Summary Judgment (Dkt. No. 159) is granted in part and denied in
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part. Summary judgment is granted as to Counts III, IV, and V.
Summary judgment is denied as to Count II.
IT IS SO ORDERED.
Dated: 9/21/2021
Harry D. Leinenweber, Judge
United States District Court
- 45 -
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