Rickmon v. Illinois Dept. of Commerce and Economic Opportunity
MEMORANDUM Opinion and Order: For the reasons stated in the attached order, IDCEO' s Motion for Summary Judgment (Dkt. No. 61) is denied in part and granted in part. Joint status report shall be filed by 10/29/2020. Telephone Conference set for 11/5/2020 at 9:30 a.m. Dial in information will be provided. Signed by the Honorable Harry D. Leinenweber on 10/13/2020:Mailed notice(maf)
Case: 1:17-cv-04668 Document #: 92 Filed: 10/13/20 Page 1 of 34 PageID #:1601
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 17 C 4668
Judge Harry D. Leinenweber
ILLINOIS DEPARTMENT OF
COMMERCE AND ECONOMIC
MEMORANDUM OPINION AND ORDER
Americans with Disabilities Act arises out of Plaintiff Robert
Commerce and Economic Opportunity.
For the reasons stated herein,
Defendant’s Motion for Summary Judgment (Dkt. No. 61) is denied in
part and granted in part.
Plaintiff Robert Rickmon (“Rickmon”) is a sixty-five-yearold resident of Chicago in Cook County, Illinois. (Pl.’s Resp. to
Def.’s Stmt. of Facts (“PSOF”) ¶ 1, Dkt. No. 79-1; Rickmon Dep. at
9:17–18, Def.’s Stmt. of Facts, Ex. B, Dkt. No. 63-2.) Defendant
Illinois Department of Commerce and Economic Opportunity (“IDCEO”)
is a state agency in Illinois. (PSOF ¶ 2.)
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In 1987, IDCEO’s Office of Energy Assistance (“OEA”) hired
Rickmon as a Weatherization Specialist 2, and he holds the same
position to this day. (PSOF ¶ 3; 5/9/2011 Reasonable Accommodation
Request for Emps. at 1, Def.’s Stmt. of Facts, Ex. F, Dkt. No. 636.) Rickmon’s position requires him to travel throughout Illinois
to inspect and review weatherized houses, as well as monitor and
audit local agencies responsible for weatherizing houses. (PSOF
¶¶ 5–9.) Rickmon’s position also requires traveling to attend
trainings, meetings and conferences. (PSOF ¶ 10.) When traveling
for work, IDCEO policy instructs employees to drive vehicles in
the following priority order: (1) department-owned (“motor pool”)
vehicles; (2) rental cars; and (3) personal cars. (PSOF ¶¶ 14–15.)
The question at the heart of this case is whether Rickmon’s
requested deviation from IDCEO’s policy, specifically his request
to travel via public transportation, constitutes a reasonable
accommodation under the Americans with Disabilities Act (“ADA”).
In July 2009, after twenty-two years as a Weatherization
Specialist, Rickmon started complaining to his general medical
practitioner of pain in his right knee. (PSOF ¶ 18.) Shortly
thereafter, Rickmon requested and was granted an exception to the
IDCEO travel policy because Rickmon is over 6 feet, 6 inches tall
and there were no motor pool vehicles that could accommodate his
height at that time. (Def.’s Resp. to Pl.’s Stmt. of Facts (“DSOF”)
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¶ 3, Dkt. No. 90-1; PSOF ¶ 20.) In January 2011, Rickmon had
arthroscopic surgery on his right knee. (PSOF ¶ 19.)
After his surgery, Rickmon used an ad hoc combination of
trains, buses and rental cars to complete his job responsibilities
but did not receive consistent approval from IDCEO to deviate from
the travel policy. (DSOF ¶¶ 5–6.) On May 9, 2011, Rickmon filled
out a disability form provided by the State of Illinois, entitled
the “Reasonable Accommodation Request for Employees.” (5/9/2011
Reasonable Accommodation Request for Emps. at 1.) The form includes
instructs employees to submit the completed form to their immediate
Coordinator. (Id.) In his accommodation request, Rickmon asked to
bypass IDCEO’s policy prioritizing motor pool vehicle use and
instead rent full-size vehicles with a power seat adjustment and
increased leg room. (Id. at 2.)
Attached to Rickmon’s request paperwork is a second form,
Leave and Return to Work,” which Dr. Rubenstein filled out on
February 25, 2011. (Id. at 3–4.) In response to the form’s inquiry,
Dr. Rubenstein lists two disabilities: (1) arthritis of the right
elaborates on the disability in the remarks section, writing that
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Rickmon “[n]eeds to limit driving distances and drive in [a] car
that allows knee to be extended + have power adjusted seat.” (Id.
On June 10, 2011, IDCEO’s ADA Coordinator, Barb Call (“Call”),
denied Rickmon’s request to bypass the motor pool car policy, as
she found that the motor pool now included at least one full-size
car with a power-adjusted driver’s seat and adequate leg room.
(PSOF ¶ 26.) Instead, Call approved a hybrid accommodation. Rickmon
was to request one of IDCEO’s full-size vehicles. If one was not
available, he was then permitted to rent a larger vehicle. (PSOF
¶¶ 15, 25, & 27.)
Accommodation Request for Employees” and attached a letter from
Dr. Rubenstein. (4/10/2013 Email from K. Bozarth to R. Rickmon
at 2, PSOF, Ex. 3, Dkt. No. 79-4.) The letter from Dr. Rubenstein
stated in part:
Currently Mr. Rickmon has difficulties with prolonged
walking distances. He is unable to run. He also has
trouble sitting with his knee bent for any prolonged
period of time. This requires him to drive larger cars
so that he may keep his knee in a stretched out position.
It also requires him to get out and stretch and walk
around frequently if he is driving for more than 45
minutes to an hour. It also requires him to take other
forms of transportation if he has to go long distances
such as a train or a bus which allows him to get up and
move about while he is traveling.
(Id. at 3.)
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On May 7, 2013, Rickmon provided a comprehensive plan to
travel across the state using the Metra, Amtrak, Greyhound, rental
cars, and the single full-size rental car available in IDCEO’s
motor pool. (5/7/2013 Email from J. Knox to L. Dawson at 1, Def.’s
inaccessible under his reasonable accommodation request. (Id.) In
(9/30/2013 Indep. Med. Examination at 2, Def.’s Stmt. of Facts,
Ex. J, Dkt. No. 63-9.) Dr. Cole, Professor at the Department of
Orthopaedics, concurred that Rickmon had “advanced osteoarthritis”
and opined that Rickmon:
should be accommodated with either being provided the
appropriate vehicle, which will afford him automatic
seat adjustment and more comfortable transportation of
himself to and from the job site; or he be afford the
privilege of reimbursed travel by train to and from a
accommodated vehicle at that site.
(Id.) On October 11, 2013, IDCEO informed Rickmon that his request
for accommodation was, again, not entirely granted. (PSOF ¶¶ 34–
36.) IDCEO stated that it intended to purchase a second full-sized
vehicle. As a result, Rickmon was directed first to attempt to
reserve a full-size vehicle from the motor pool. If unavailable,
“other modes of travel (e.g., Amtrak Train, Bus or Metra Train)
may be made available” to Rickmon, if his immediate supervisor or
his supervisor’s designee granted prior approval. (PSOF ¶¶ 35–36.)
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(“Bell”), IDCEO’s Deputy Director and the agency’s internal Equal
accommodation in June 2014. Bell concluded that IDCEO did not
accommodation.” (6/12/2014 Email from K. Bell to E. Monk at 1,
PSOF, Ex. 7, Dkt. No. 79-8 (emphasis in original).) Bell stated
that “[I]DECO and any employer can deny an accommodation request
on the basis of undue hardship, but, in doing so, it should be
able to document through cost (which is difficult to establish) or
other factor (perhaps inefficiency),” and noted that Rickmon’s
file did not provide documentation to support this finding. (Id.
(emphasis in original).)
Bell stated that “an employer is also
legally entitled to provide an equally effective accommodation to
the one proposed by the employee that better meets the employer’s
needs,” but that Rickmon currently denies the effectiveness of
IDCEO’s current accommodation. (Id.) Bell considered Rickmon’s
Amtrak and Metra plan to be a “fair accommodations request” and
suggested that his current accommodation be amended by IDCEO. (Id;
DSOF ¶ 14.)
Presumably in response to Rickmon’s file review, IDCEO issued
a modification letter on August 18, 2014. (8/18/2014 Letter to R.
Rickmon, Def.’s Stmt. of Facts, Ex. K, Dkt. No. 63-12.) When
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traveling to destinations in the Chicago metropolitan area and to
Peoria, Livingston, and McLean counties, Rickmon was directed to
attempt to secure one of the larger cars from IDCEO’s motor pool.
(Id.) If unable to do so, he was permitted to use a rental car.
(Id.) When traveling to other locations that were more than 200
miles from the Chicago metropolitan area, as measured by distance
from the Thompson Center, IDCEO approved Rickmon to travel by
Amtrak, bus, or motor pool vehicle. (Id.)
On March 15, 2015, Rickmon submitted his third request for a
reasonable accommodation. (PSOF ¶ 39.) The physician’s letter
attached to the request, again written by Dr. Rubinstein, detailed
at 2, Def.’s Stmt. of Facts, Ex. M, Dkt. No. 63-13.) Dr. Rubinstein
recommended that Rickmon:
avoid drives over about an hour at a stretch and try to
transportation such as a train rather than being forced
to drive for those long periods of time. I would suggest
that 35-45 miles would be the maximum amount that Mr.
Rickmon should drive for appointments while at work.
(Id.) On March 19, 2015, IDCEO denied the request in a four-page
memorandum. (PSOF ¶ 41; 3/19/2015 Memorandum Re: Rickmon Request,
Def.’s Stmt. of Facts, Ex. N, Dkt. No. 63-14.)
In summary, both Rickmon and IDCEO agree that Rickmon should
drive to job site locations that are less than 45 miles away and
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use train travel for some distances beyond the 200-mile threshold.
However, the parties dispute the appropriate mode of travel to job
site locations over 45 miles away and within either the Chicago
metropolitan area or Peoria, Livingston, and McLean counties. The
parties also generally dispute Rickmon’s appropriate method of
travel to locations greater than 45 miles and less than 200 miles
Beginning on September 8, 2014, and reoccurring on October 9,
October 17, October 22, and December 3, 2014, Rickmon refused to
reserve a motor pool vehicle to complete visits to Peoria and other
central Illinois locations. (PSOF ¶¶ 47, 49, & 51.) In response,
eventually, a one-day suspension. (Id. ¶¶ 48, 50, & 52.) Other
than the cited refusals to travel via motor vehicle, Rickmon has
not had any job performance issues. (DSOF ¶¶ 26–27.) In the fall
2015, Rickmon requested two hours of overtime for attending a team
visit to the Community Economic Development Association of Cook
County. (PSOF ¶ 57.) IDECO denied this request. (Id. ¶ 58.) In
fall 2017, Rickmon did not attend a mandatory conference. (Id.
¶ 53.) When Rickmon requested to use two days of sick leave to
excuse his absence, he was asked to provide a note from his
physician. (Id.¶ 54.) When he was unable to do so, IDCEO denied
his request. (Id. ¶¶ 54–55.)
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Rickmon filed his first charge of disability discrimination
September 18, 2014. (PSOF ¶ 62.) On December 8, 2015, the EEOC
discriminated against Rickmon. (Def.’s Answer ¶ 7, Def.’s Stmt. of
Facts, Ex. A, Dkt. No. 63-1.) On March 22, 2017, the EEOC issued
a notice of Rickmon’s right to sue IDCEO. (Id. ¶ 8.) On February 2,
discrimination with the EEOC, and the EEOC issued a second notice
of Rickmon’s right to sue on September 28, 2018. (Id. ¶¶ 9–10.)
Rickmon brought this action in June 2017 and filed his Second
Amended Complaint in January 2019. Rickmon brings two claims
against IDCEO under the ADA: (1) failure to accommodate; and (2)
retaliation. (Second Am. Compl. ¶¶ 32–46, Dkt. No. 29.) IDCEO now
moves for summary judgment on both counts.
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. When reviewing the record on
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a summary judgment motion, courts 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 681.
Local Rule 56.1 Compliance
The Court first addresses the parties’ dispute on the Northern
District of Illinois Local Rule 56.1(a)(1)–(b)(3). IDCEO dedicates
several pages of its reply brief to assertions that Rickmon fails
to comply with Local Rule 56.1(b)(3). IDCEO argues Rickmon’s
supported, argumentative, and needlessly dispute immaterial facts.
IDCEO also argues Rickmon’s statement of additional facts contains
conclusions, and often improperly relies on hearsay.
Local Rule 56.1 was designed to assist district courts and
“streamline the resolution of summary judgment motions.” Ammons v.
Aramark Unif. Servs., Inc., 368 F.3d 809, 818 (7th Cir. 2004)
(citations omitted). This did not happen here. Both Rickmon and
statements and made frivolous objections in their responses and
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classified as one side objecting to the other’s factual spin or
underlying record. Two of IDCEO’s arguments, however, are legal
objections and require additional analysis.
immaterial. IDCEO states that “the only accommodation request at
issue is Plaintiff’s March 5, 2015 request.” (Reply at 3, Dkt.
No. 90.) As a result, IDCEO argues that any prior facts provided
statement of facts improper. An employee may use “prior acts as
discrimination. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002). In National Railroad Passenger Corporation, the
plaintiff filed a claim alleging employer discrimination over five
years. 536 U.S. at 105 n.1. The Supreme Court held that the
themselves not actionable, can be used as relevant evidence with
a timely claim. Id. at 113. As a result, facts regarding IDCEO and
Rickmon’s employer-employee relationship prior to the March 5,
2015 reasonable accommodation request are material to Rickmon’s
claim under the ADA. The Court also notes that IDCEO position is
illogical. Under Local Rule 56.1, IDCEO was instructed to submit
“a statement of material facts.” NDIL LR 56.1(a)(3). IDCEO cannot
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submit facts for the purposes of summary judgment and then claim
those same facts are immaterial once Rickmon disputes them.
Second, IDCEO claims that Rickmon’s reliance on personal
knowledge via affidavit and an April 15, 2013 email written by
Rickmon are “hearsay” in a summary judgement motion. (DSOF ¶¶ 5–
7, 20 & 21.) This is incorrect. A party’s personal knowledge,
through an affidavit or otherwise, is not hearsay on a summary
judgment motion unless there is conflicting evidence in the record.
See McKinney v. Office of Sheriff of Whitley Cty., 866 F.3d 803,
conclusory. Our cases for at least the past fifteen years teach
that [s]elf-serving affidavits can indeed be a legitimate method
internal quotations omitted). IDCEO’s hearsay and immateriality
objections run against well-established case law, and the Court
The Court uses the underlying exhibits on the remaining
disputed facts, as well as the remaining undisputed facts in IDCEO
and Rickmon’s submissions, when reviewing Rickmon’s failure to
accommodate and retaliation claims under the ADA.
Count One: Failure to Accommodate
Rickmon claims that IDCEO failed to grant him a reasonable
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standards to evaluate Rickmon’s claim. IDCEO states that Rickmon
must show “(1) he is disabled; (2) he is otherwise qualified to
reasonable accommodation; and (3) IDCEO took an adverse job action
reasonable accommodation for it.” (Mot. at 5, Dkt. No. 59.) Rickmon
states that he must show “(1) he is a qualified individual with a
disability; (2) the employer was aware of his disability; and (3)
the employer failed to offer him a reasonable accommodation for
his disability.” (Resp. at 6, Dkt. No. 79.)
The Seventh Circuit has clarified multiple times that there
are two discrimination claims under the ADA: a disparate treatment
claim and a failure to accommodate claim. Bultemeyer v. Fort Wayne
Cmty. Sch., 100 F.3d 1281, 1283 (7th Cir. 1996) (“Again, [. . .]
accommodation claim, and it must be analyzed differently.”) As
disparate treatment claim arises from ADA language prohibiting
covered entities from ‘limiting, segregating, or classifying a job
opportunities or status of such applicant or employee.’” No. 192780, 2020 WL 5511988, at *3 (7th Cir. Sept. 14, 2020) (citing 42
U.S.C. § 12112(b)(1)). In contrast, a failure to accommodate claim
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individual.” Id. (citing 42 U.S.C. § 12112(b)(5)(A)).
A cursory review of the Second Amended Complaint shows that
Rickmon pled a failure to accommodate claim (Second Am. Compl.
¶¶ 32–46.) As a result, there must be sufficient evidence such
that a reasonable jury could find: (1) he was disabled, (2) his
employer was aware of his disability, and (3) he was a qualified
individual who, with or without reasonable accommodation, could
perform the essential functions of the employment position. Basith
v. Cook Cty., 241 F.3d 919, 927 (7th Cir. 2001).
In part because IDCEO identified and argued the wrong standard
in its briefing, IDCEO disputes neither its awareness of Rickmon’s
disability nor Rickmon’s status as a qualified individual, the
second and third prong of a failure to accommodate claim. These
arguments are forfeited for the purposes of summary judgment. Cf.
Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“[T]he
district court is entitled to find that an argument raised for the
first time in a reply brief is forfeited.”). The Court will thus
address the only remaining prong of a failure to accommodate claim,
which concerns whether Rickmon is disabled as defined by the ADA.
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Disability Under the ADA
To prove that IDCEO has failed to accommodate Rickmon’s
disability, he must first show that he is disabled and thus
entitled to an accommodation. Basith, 241 F.3d at 927. The ADA
§ 12102(1)(A)–(C). As part of an initial disability claim, a
plaintiff must show one of the following definitions apply: (1)
has a physical or mental impairment that substantially limits one
or more major life activities; (2) a record of such an impairment;
or (3) be regarded as having such an impairment. Johnson v. City
of Chi. Bd. of Educ., 142 F.Supp.3d 675, 684 (N.D. Ill. 2015)
(citing Stewart v. Cty. of Brown, 86 F.3d 107, 111 (7th Cir.
1996)). IDCEO argues that Rickmon is not disabled because his
activity; Rickmon argues his physical impairment restricts several
of them. Neither party addresses the second or third definitions–
whether there was a record of Rickmon’s impairment or whether IDCEO
regarded Rickmon as having an impairment. As such, the Court will
only determine whether a reasonable jury could find that Rickmon
is substantially limited in at least one major life activity due
to a physical or mental impairment.
IDCEO and Rickmon agree that Rickmon is physically impaired.
Specifically, Rickmon has degenerative arthritis in his right
knee, which results in “slower walking, and standing, [and he]
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position is that this impairment does not substantially limit
Rickmon’s major life activities. Rickmon claims that this physical
impairment limits four major life activities: standing, walking,
sitting, and working by means of driving.
While the ADA defines standing, walking, and sitting as major
life activities, it does not address driving. 42 U.S.C. § 12102(2).
As such, the Court will first address Rickmon’s claims regarding
standing, walking, and sitting, and separately address Rickmon’s
claim regarding driving.
Walking, Standing, and Sitting
activities, Rickmon must only show evidence that one or more of
these activities is “substantially limited.” 42 U.S.C. § 12102(2).
The Code of Federal Regulations instructs that the term “shall be
construed broadly in favor of expansive coverage,” but notes that
“[n]onetheless, not every impairment will constitute a disability
within the meaning of this section.” 29 C.F.R. § 1630.2(j)(1)(i)–
(ii). To differentiate between a limiting and a substantially
limiting impairment, Rickmon must show his relative inability “to
perform a major life activity as compared to most people in the
general population.” Id. § 1630.2(j)(1)(ii).
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sitting is limited. In his deposition, Rickmon testifies that
walking and standing are impaired because these activities “just
take a little more time, slower walking, slower standing, can't
stand as long.” (Rickmon Dep. at 75:6–9.) Even under a broad
construction of the ADA, Rickmon’s restrictions, as he describes
it, do not qualify as a substantial impairment. See Moore v. J.B.
Hunt Transp., Inc., 221 F.3d 944, 951 (7th Cir. 2000) (holding
that arthritis that affects the “rate and pace” of walking does
not constitute a substantial impairment when compared with the
ability of the average person). Further, Rickmon testified that he
was able to perform all his duties inspecting homes as required by
his job. (Rickmon Dep. at 75:19–21.) Per his job description,
Rickmon regularly “complete(s) physical inspection of the attic,
(Weatherization Specialist 2 Position Description at 1, Def.’s
Stmt. of Facts, Ex. C, Dkt. No. 63-3.) Rickmon’s careful inspection
of real estate includes prolonged walking and standing. As Rickmon
employer, there is insufficient evidence for a reasonable jury to
find that Rickmon is significantly restricted in standing or
walking as compared to the average person. See Scheerer v. Potter,
443 F.3d 916, 920 (7th Cir. 2006) (holding that a diabetic employee
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who “routinely completed all of his work duties during his eighthour shift” was not severely restricted in walking or standing).
Rickmon also claims that his sitting is restricted because he
cannot sit with his knee at a certain angle for long periods of
time. It is unclear if a certain knee-angle restriction qualifies
as “substantially limiting” Rickmon’s general ability to sit.
Moreover, Rickmon’s sitting only causes him problems when Rickmon
is driving. (See, e.g., 3/20/2013 Referral Letter at 1, PSOF, Ex.
5, Dkt. No. 79-5.) As a result, this restriction is best considered
under Rickmon’s final major life activity claim, that his arthritis
has significantly limited his ability to drive, and thus, work.
IDCEO agrees that, due to Rickmon’s arthritis, Rickmon cannot
“drive long distances.” (PSOF ¶ 20.) The parties acknowledge that
“driving is not, in itself, a major life activity.” Winsley v.
Cook Cty., 563 F.3d 598, 603 (7th Cir. 2009). Instead, Rickmon
argues that his inability to drive substantially impairs his major
life activity of working. IDCEO agrees that Rickmon’s job requires
driving long distances. (PSOF ¶¶ 6–11 & 14–15.) IDCEO argues,
however, that Rickmon’s driving restrictions do not prevent him
from working because Rickmon testified that he can work in an
“office setting.” (Id. ¶ 21.)
For a plaintiff to show he is substantially limited in the
activity of working, the impairment must restrict a plaintiff from
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working beyond the single position at issue. The plaintiff must be
“significantly restricted in the ability to perform either a class
of jobs or a broad range of jobs in various classes as compared to
abilities.” Delgado v. Certified Grocers Midwest, Inc., No. 073140, 2008 WL 2486027, at *3 (7th Cir. 2008) (citations omitted).
For this reason, it usually is necessary for the plaintiff to
provide evidence of the kind of jobs the plaintiff would be
excluded from due to his impairment. In unusual cases, however,
the “impairment is so severe that their substantial foreclosure
from the job market is obvious.” Id. (citing EEOC v. Rockwell Int'l
Corp., 243 F.3d 1012, 1017 (7th Cir. 2001)).
Based on this guidance, IDCEO errs in two respects. First,
even if the Court assumes that Rickmon’s vague testimony regarding
an “office setting” is sufficient to prove that that Rickmon can
perform an alternative job or type of job, this does not preclude
Rickmon from claiming that he cannot perform the range of jobs
precluded from claiming he is disabled because he is capable of
moving furniture, and a household mover’s disability claim is not
barred by a math degree. Just as a plaintiff’s impairment must
restrict more than a single job, a defendant’s counter that a
plaintiff could perform a different, alternative job does not
foreclose a reasonable fact finder from concluding a plaintiff is
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disabled. The Court could not find any authority, nor does IDCEO
cite any, holding that a plaintiff must be unable to perform any
job before he is impaired in the major life activity of working.
For this reason, Rickmon could be physically capable to work in an
office setting and still be disabled under the ADA.
Second, IDCEO’s response does not counter the evidence that
Rickmon’s physical impairment is itself proof of substantial job
limitation. The Seventh Circuit’s decision in Best v. Shell Oil
Company, and its subsequent explanation of that decision in Delgado
v. Certified Grocers Midwest, Incorporated, are instructive. In
Best, plaintiff Best worked for more than five years as a gasoline
delivery truck driver. 107 F.3d 544, 544 (7th Cir. 1997). Following
an injury, he began to have pain when bending the knee “more than
90 degrees inward towards his body.” Id. at 545. After surgery,
Best continued to suffer pain and swelling. Id. Shell, Best’s
Best’s knee. The subsequent report recommended a modified seat to
prevent injury. Id. The Seventh Circuit held that, despite the
lack of record regarding truck drivers generally, a “knee injury,
which precluded [Best] from driving, was sufficient to overcome
summary judgment on the question whether he was disabled under the
ADA.” Delgado, 2008 WL 2486027, at *4.
In this case, Rickmon has worked for IDCEO for over thirty
years. (PSOF ¶ 4.) Like Best, Rickmon required knee surgery and
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was unable to drive without a modified seat to provide extended
accommodation. (PSOF ¶ 33.)
IDCEO is correct that, similar to Best, Rickmon did not
provide evidence that his arthritis restricts more than his current
job position, as generally required under ADA case law. Delgado,
2008 WL 2486027, at *3. However, a reasonable jury could find it
self-evident Rickmon’s 45-minute driving restriction impairs his
ability to perform a broad range of jobs. See also DePaoli v.
Abbott Labs., 140 F.3d 668, 673 (7th Cir. 1998) (holding a worker
who could not perform repetitive motions with her right hand was
precluded from “virtually any assembly line job that required
repetitive movement”); Cochrum v. Old Ben Coal Co., 102 F.3d 908,
restrictions “– no overhead work, heavy lifting, or pulling and
pushing out from his body — might apply to a broad range of jobs,
and are more than job specific.”) For this reason, Rickmon’s claim
that his driving limitations significantly restrict his major life
activity of working survives IDCEO’s summary judgment challenge.
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IDCEO argues that, even if Rickmon is a qualified individual
under the ADA, no jury could find his request for accommodation
reasonable given its hardship on IDCEO’s operations. Once the
plaintiff has shown that he or she is a qualified individual under
the ADA, an employer “must make ‘reasonable accommodations’ to a
demonstrate that to do so would impose an ‘undue hardship.’” EEOC
v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005); 42
U.S.C. § 12112(b)(5)(A). Because this element is the defendant’s
burden of proof at trial and defendant is the moving party in this
motion, the facts “should be view[ed] . . . in the light most
favorable” to Rickmon. Bultemeyer, 100 F.3d at 1286 (emphasis in
original). To determine whether an entity would suffer undue
hardship to accommodate a disabled person, the ADA provides four
factors for consideration:
(i) the nature and cost of the accommodation needed under
(ii) the overall financial resources of the facility or
facilities involved in the provision of the reasonable
accommodation; the number of persons employed at such
facility; the effect on expenses and resources, or the
impact otherwise of such accommodation upon the
operation of the facility;
(iii) the overall financial resources of the covered
entity; the overall size of the business of a covered
entity with respect to the number of its employees; the
number, type, and location of its facilities; and
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(iv) the type of operation or operations of the covered
entity, including the composition, structure, and
functions of the workforce of such entity; the
geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question
to the covered entity.
42 U.S.C. § 12111. In support of its argument, IDCEO cites to a
(3/19/2015 Memorandum Re: Rickmon Request.) The memorandum asserts
that “utilizing train schedules . . . requires overtime, extensive
layover time, and additional costs. Use of a remote rental car or
logistical tasks and diminishes a monitor’s flexibility in getting
describing a few hypothetical weatherization specialist scenarios,
the memorandum notes: “[a]dditional restrictions on [Rickmon]’s
Illinois would have a negative impact on OEA’s ability to operate
efficiently when addressing those scenarios.” (Id. at 3.)
required to find undue hardship on a motion for summary judgment.
Both a reasonable and an unreasonable accommodation could have a
“negative impact” on IDCEO’s operations. (Id. at 3.) The question
before the Court is not whether there is a hardship, but whether
it is undue. This requires “evidence quantifying the financial
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necessary to evaluate the factors listed in § 12111 (10)(B).”
Jankowski v. Dean Foods Co., 378 F.Supp.3d 697, 712–13 (N.D. Ill.
2019). IDCEO’s memorandum is remarkably silent on specifics.
For example, IDCEO claims that “utilizing train schedules
. . . requires overtime, extensive layover time, and additional
costs.” (Id. at 2.) Appropriate evidence to support overtime and
layover time burdens would be train schedules, estimated driving
times, and average train or driving delays. Appropriate evidence
of costs would include train ticket prices and rental car price
estimates. IDCEO provides neither. Nor does IDCEO attempt to
quantify the time and costs involved, relying exclusively on
descriptors like “extensive” and “additional.” (Id.) The Court
makes no determination as to whether a train ticket is a reasonable
substitution for a car rental. Without any objective or referential
measurements from IDCEO, the Court cannot determine the degree of
determine it is an undue hardship for IDCEO.
Even taken at face value, the memorandum is inconclusive and
vague. For example, the memorandum cites “overtime” as a specific
at 1.) Further in the text, however, the memorandum also states
that Chicago employees are “allowed overtime for early morning
travel and meetings and trainings are regularly scheduled to late
morning to allow for staff travel.” (Id. at 3.) It is unclear how
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the train-induced overtime requested by Rickmon, who is based in
described in the same memorandum. IDCEO does nothing to clarify
this apparent discrepancy.
Further, Rickmon’s evidence suggests that the memorandum is
inaccurate. Rickmon provides overtime records to prove that his
prior train overtime payments are equal to or less than the driving
¶ 19.) IDCEO disputes Rickmon’s act of comparing himself to other
weatherization specialists but does not explain why Rickmon is
unlike others in his position. (Id.) IDCEO’s objection is puzzling
as courts and jurors can use a plaintiff’s testimony regarding
similarly situated employees to support an inference that an
McKinney, 866 F.3d at 812. Without a more specific objection from
IDCEO as to why Rickmon is unique among weatherization specialists,
the Court thinks it is reasonable for Rickmon to draw comparisons
from himself to other similarly situated employees.
resolution by a jury. A reasonable juror could interpret IDCEO’s
constantly changing position on permitted types of travel to mean
that Rickmon is a troublesome employee or that IDCEO is unwilling
consideration of the internal compliance review on Rickson’s file
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has no clear resolution. A juror could find the dutifully copied
language in IDCEO’s subsequent memorandum denying Rickmon’s third
accommodation to be either a post hoc justification or a good faith
analysis. As a result, IDCEO’s evidence is incomplete and lacks
the requisite specificity to establish undue hardship.
Because there is a genuine dispute of material fact both as
to Rickmon’s disability and the hardship imposed by Rickmon’s
accommodation request, the Court denies IDCEO’s Motion for Summary
Judgment on Count One.
Count Two: Retaliation
retaliation claim. To survive summary judgment, a reasonable jury
activity, (2) he suffered an adverse action, and (3) there is a
causal connection between the two. Rowlands v. United Parcel Serv.
– Fort Wayne, 901 F.3d 792, 801 (7th Cir. 2018). IDCEO does not
dispute that Rickmon engaged in a protected activity, satisfying
employer actions happened in the wake of Rickmon’s reasonable
reprimands culminating in a one-day suspension, and (3) a denial
of sick time leave. (PSOF ¶¶ 47–58.)
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either do not constitute adverse actions, lack a causal connection,
or both. Rickmon focuses on the theory that these actions, taken
as a whole, are adverse and causally connected. Accordingly, the
Court addresses these actions both separately and holistically
under the two remaining prongs of the retaliation test.
Overtime Request Denial
On November 16 and 19, 2015, Rickmon attended “a team visit
to the Community Economic Development Association of Cook County.”
(PSOF ¶ 57.) Rickmon subsequently requested two hours of overtime
in conjunction with this team visit. (Id.) IDCEO denied Rickmon’s
request. (Id. ¶ 58.) Rickmon argues that IDCEO denied his overtime
request as a direct result of his reasonable accommodation request
September 18, 2014. (PSOF ¶¶ 63.) IDCEO argues that the overtime
denial cannot be considered in this Motion because it is timebarred. IDCEO also argues that, even if it is not time-barred, the
overtime denial does not constitute an “adverse action” within the
meaning of the ADA.
Under the ADA, a charge of employment discrimination must be
“filed by or on behalf of the person aggrieved within three hundred
days after the alleged unlawful employment practice occurred.” 42
U.S.C. § 2005(e)(1). IDCEO notes that Rickmon’s second charge of
discrimination with the EEOC was on February 2, 2018. (Def.’s Ans.
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¶ 9.) IDCEO claims that, because Rickmon’s second charge is more
than 300 days from November 2015, his overtime denial retaliation
claim is now time-barred.
permissible scope of a judicial complaint includes any new acts
occurring during the pendency of the charge before the EEOC.”
Hemmige v. Chi. Pub. Sch., 786 F.2d 280, 283 (7th Cir. 1986); see
also Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989),
superseded by statute on other grounds as recognized in Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1030 (7th Cir. 2013). Rickmon
filed his first charge of discrimination on September 18, 2014.
(PSOF ¶ 62.) The EEOC completed its administrative process on
March 22, 2017. (Def.’s Answer ¶ 8.) Because November 2015 comes
between September 18, 2014, and March 22, 2017, Rickmon’s overtime
denial retaliation claim is not time-barred.
“significant and recurring” part of Rickmon’s total earnings.
Lewis v. City of Chi. Police Dep't, 590 F.3d 427, 436 (7th Cir.
2009). In Lewis, the Seventh Circuit agreed with the district court
that the denial of an opportunity for overtime is “a materially
adverse employment action if the overtime is a significant and
recurring part of an employee's total earnings.” 590 F.3d at 436.
If, on the other hand, the opportunity is “insignificant and
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nonrecurring, it will not be a materially adverse employment
action.” Id. Rickmon does not address this standard and argues
that every hour should be compensated, even if the effect is de
minimus. Rickmon offers no evidence of other overtime denials. It
follows then that a single denial for two hours of overtime is
insignificant and nonrecurring. Thus, the overtime request denial
is not an adverse action under the ADA.
Sick Leave Denial
Two years later, on November 14 and 15, 2017, Rickmon missed
a mandatory conference. (PSOF ¶ 53.) Rickmon requested to use two
days of sick leave. (Id. ¶ 54.) IDCEO asked that Rickmon first
provide a doctor’s note. (Id. ¶ 55.) When he did not, IDCEO denied
Rickmon’s request. (Id. ¶¶ 55–56.) Rickmon argues that this sick
leave denial was in retaliation for his ongoing protected activity
from September 2014 to present day.
materially adverse action. To prove an action is adverse in a
retaliatory claim, a plaintiff must show that the adverse action
“dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (citations omitted). In creating this standard,
the Supreme Court directed courts to separate the “significant
from trivial harms.” Id. For smaller injuries, significance is
based in part on repetition. Id. at 68–69. The Supreme Court held
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that an occasional refusal to invite an employee to lunch was a
training lunch [. . .] might well deter a reasonable employee from
complaining about discrimination.” Id. at 69.
Rickmon alleges that a single sick leave denial constitutes
an adverse action. Unfortunately, Rickmon does not elaborate on
this contention. It is unclear if a sick leave denial would deter
Regardless, the undisputed facts foreclose a causal connection.
Generally, courts find a causal connection if “the evidence
plaintiff’s] requests for accommodations caused the discharge.”
Rowlands, 901 F.3d at 801. IDCEO states it denied Rickmon’s sick
leave request because it asked for “documentation in the form of
a doctor’s note to support his request,” and Rickmon never provided
the doctor’s note. (PSOF ¶ 55.) Rickmon agrees that he did not
give IDCEO a doctor’s note. (Id.) Again, Rickmon does not provide
caused the sick leave denial.
Beginning on September 8, 2014, and continuing through the
end of that year, Rickmon refused to reserve motor pool vehicles
to travel to Peoria and other central Illinois locations. (PSOF
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¶¶ 47, 49 & 51.) In response, IDCEO issued oral and written
reprimands. (Id. ¶¶ 48 & 50.) As a result of these accumulated
violations, on March 3, 2015, IDCEO suspended Rickmon for one day.
(Id. ¶ 52.)
IDCEO argues that Rickmon’s March 3, 2015, suspension lacks
a causal connection to Rickmon’s protected activity under the ADA.
The parties agree that IDCEO suspended Rickmon because he failed
to follow IDCEO’s standard travel policy after IDCEO partially
denied his accommodation request. (Id. ¶52.) Rickmon argues this
is conclusive proof of a causal connection between the activities;
IDCEO argues this is conclusive proof of a causal severance.
Because the parties agree on the facts, it is a question of law
whether denying a request for accommodation and then disciplining
constitutes retaliation under the ADA.
Under these circumstances, it does not. The purpose of the
interfering (through retaliation) with an employee’s efforts to
secure or advance enforcement of the Act’s basic guarantees.”
Burlington, 548 U.S. at 63. Evidence showing that a plaintiff
failed to meet the employer’s legitimate expectations “rebut[s]
any presumption that the actions were taken in retaliation.” Boss
v. Castro, 816 F.3d 910, 919 (7th Cir. 2016). Travel is an
essential part of Rickmon’s position. (PSOF ¶ 8.) Failure to do an
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essential function of the job is a legitimate reason for work
discipline. The evidence on summary judgment shows no reason to
believe that Rickmon’s refusal to do his job and the subsequent
discipline was otherwise related to his protected activities.
Hostile Work Environment
Although IDCEO’s two-hour overtime denial, two-day sick leave
denial, and one day suspension were individually insufficient,
Rickmon argues that the cumulative effect of these slights allows
a reasonable factfinder to find evidence of retaliation. Hostile
work environment claims under the ADA are unusual but assumed
cognizable in the Seventh Circuit. Silk v. City of Chi., 194 F.3d
788, 804 (7th Cir. 1999). A hostile work environment claim follows
Title VII litigation, such that a plaintiff must “show that his or
hostile.” Id. (citing Adusumilli v. City of Chi., 164 F.3d 353,
361 (7th Cir.1998)). Courts should not “carve up the incidents of
harassment and then separately analyze each incident, by itself,
to see if each rises to the level of being severe or pervasive”
but instead review “the totality of the circumstances.” Hall v.
Even taking the facts in the light most favorable to him,
Rickmon’s claim of a hostile work environment fails. Objectively,
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discriminatory conduct, its severity” and “whether it unreasonably
interferes with an employee’s work performance.” Haugerud v. Amery
Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001). IDCEO’s disciplinary
measures, the 2015 overtime denial, and the 2017 sick leave denial
are neither frequent, severe, nor unreasonably interfering with
Rickmon’s work performance. See Silk, 194 F.3d at 807 (“[S]imple
extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment.”) (citations omitted); cf.
Hall, 713 F.3d at 330 (holding an environment where the plaintiff
“reviewed useless videotapes, her colleagues were forbidden from
speaking to her, she was prohibited from Division meetings, her
efforts to take on more work were suppressed, and [her supervisor]
subjected her to occasional verbal outbursts as well as one minor
physical altercation” to be objectively hostile).
Rickmon also fails to meet the subjectivity requirement.
Specifically, Rickmon must show that he “perceived [the work
environment] to be abusive.” Silk, 194 F.3d at 805. Rickmon cites
to a single line in his deposition to support his perception of
harassment, stating that the environment at IDCEO “wears on you
after a while.” (Rickmon Dep. at 164:13–14.) This statement is
ambiguous and fails to show that Rickmon perceived the environment
to be abusive. The Court has no way of knowing whether Rickmon’s
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accommodation from his employer, or simply the day to day struggles
of his job. Regardless, evidence establishing an environment that
“wears on you” does not establish a subjectively hostile work
environment. Cf. Haugerud, 259 F.3d at 695 (finding “problems with
sleep, depression, and weight gain, as well as several incidents
in which she was brought to tears” as a result of her work
subjectively hostile. Rickmon cannot establish retaliation via a
hostile work environment claim.
No reasonable jury could find that IDCEO retaliated against
Rickmon, either directly or through a hostile work environment.
The Court grants IDCEO’s Motion for Summary Judgment on Count Two.
For the reasons stated herein, IDCEO’s Motion for Summary
Judgment (Dkt. No. 61) is denied in part and granted in part.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
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