Harding v. Central Transport
OPINION AND ORDER GRANTING 26 Motion for Summary Judgment. The Clerk is to ENTER FINAL JUDGMENT. Signed by Senior Judge James T Moody on 3/20/2017. (Copy mailed to pro se party)(jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CENTRAL TRANSPORT LLC,
No. 1:15 CV 305
OPINION AND ORDER
William Harding, a pro se plaintiff, is proceeding on a claim against his former
employer, defendant Central Transport LLC (“Central Transport”), for employment
discrimination based on an alleged disability. (DE # 1.) Central Transport has moved
for summary judgment. (DE # 26.) For the reasons stated below, the motion will be
Summary judgment must be granted when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes
summary judgment inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Id. To determine whether a genuine issue of material fact exists,
the court must construe all facts in the light most favorable to the non-moving party
and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt, 606 F.3d 355,
358 (7th Cir. 2010).
A party opposing a properly supported summary judgment motion may not rely
merely on allegations or denials in his or her own pleading, but rather must “marshal
and present the court with the evidence she contends will prove her case.” Goodman v.
Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party fails to
establish the existence of an essential element on which he or she bears the burden of
proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
Plaintiff did not file a response to the motion for summary judgment, despite
being given proper notice of the motion. (See DE # 28.) Pursuant to N.D. Ind. Local Rule
7-1(d)(4), a party’s failure to file a response within the time prescribed may subject the
motion to summary ruling. Nevertheless, “[s]trict enforcement of [local rules] does not
mean that a party’s failure to submit a timely filing automatically results in summary
judgment for the opposing party.” Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568
(7th Cir. 1992). Rather, that failure “causes all factual assertions alleged by the opposing
party to be deemed admitted.” Id. Accordingly, defendant Central Transport’s
“statement of material facts” (DE # 27 at 4–5) is deemed admitted and undisputed. The
court still must “make the further finding that given the undisputed facts, summary
judgment is proper as a matter of law.” Wienco, Inc., 965 F.2d at 568.
On March 18, 2011, Central Transport hired plaintiff William Harding to work as
a linehaul driver. (DE # 27-1 at 1.) In June of that year, Harding fell off a dock at work
and was injured. (DE # 1 at 2.) The last day that Harding worked for Central Transport
was June 15, 2011. (DE # 27-1 at 2.) On July 1, 2011, Harding received his final check for
work performed as a driver, and 14 days later he began receiving worker’s
compensation benefits related to his occupational injury. (Id.) On September 21, 2012,
Central Transport received notice that Harding had undergone an examination by an
independent medical examiner, which detailed his medical restrictions. (Id.)
On October 7, 2014, Harding filed a charge of discrimination with the EEOC and
the City of Fort Wayne Metropolitan Human Relations Commission. (DE # 27-2.)
Harding alleges that since his injury, Central Transport has not allowed him to work.
(DE # 1 at 2.) He argues that Central Transport could have accommodated his disability
by assigning him to a “drive only” position. (Id.) According to Harding, the failure to
provide this accommodation is a violation of the Americans with Disabilities Act (the
“ADA”). (Id.) However, prior to filing his charge on October 7, 2014, Harding had never
asked Central Transport to provide him with an accommodation or alternate
employment position. (DE # 27-1 at 2.)
Additionally, Harding alleges that he is still employed by Central Transport
because “in March 2014, [he] was given a random drug test.” (DE # 1 at 2–3.) Harding
does not specify who gave him this drug test, nor does he provide any evidence of it
outside of a single allegation in his complaint. (See id.) Regardless, the undisputed
evidence provided by defendant demonstrates that Central Transport did not ask
Harding to take a drug test in March 2014. (DE # 27-1 at 3, 10–13.)
Harding filed his complaint in this court on October 22, 2015. (DE # 1.) Central
Transport filed its motion for summary judgment on March 15, 2016. (DE # 26.) The
motion is now ripe for ruling.
In its motion, Central Transport argues that summary judgment is appropriate
because Harding did not file a charge of discrimination in a timely manner. (DE # 27 at
6.) To successfully pursue a claim under the ADA, a plaintiff must have timely filed a
charge of discrimination with the EEOC or appropriate local agency. See Stepney v.
Naperville Sch. Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004). The ADA’s enforcement
provision expressly incorporates this timeliness requirement from Title VII. Id. (citing 42
U.S.C. § 12117(a) and 42 U.S.C. § 2000e-5(e)(1)). Consequently, in Indiana, charges of
discrimination “must be filed within 300 days of the occurrence of the act that is the
basis of the complaint.” DeLon v. Eli Lilly & Co., 990 F. Supp. 2d 865, 871 (S.D. Ind. 2013).
Harding filed his charge of discrimination on October 7, 2014, and 300 days
before that date is December 11, 2013. Thus any contention by Harding that Central
Transport “failed to accommodate his disability” before December 3, 2013, “cannot be
used to support [his] claim.” Teague v. Nw. Mem’l Hosp., 492 F. App’x. 680, 683 (7th Cir.
Plaintiff alleges that the failure to accommodate his injury began in June 2011
and continued through the date he filed the charge. (See DE # 1 at 4.) Importantly,
however, a refusal to provide a reasonable accommodation is a "discrete act" and “not
an ongoing omission.” Teague 492 F. App’x. at 684 (holding this and citing other circuits
that have held the same); DeLon, 990 F. Supp. 2d at 871. Thus, in the case at hand,
Harding may only base his ADA claim on some discrete act that Central Transport took
when it (allegedly) refused to accommodate plaintiff’s injury. He may not base his claim
on Central Transport’s continuing lack of accommodation after the refusal. See Stepney,
392 F.3d at 240 (“We have made clear, however, that failure to remedy an unlawful
employment action is not a discrete actionable violation.”).
Therefore, in order for Harding to properly bring a claim under the ADA for a
failure to accommodate his disability, he must allege that Central Transport took action
to refuse the accommodation before December 3, 2013. There is no evidence that
Harding ever requested an accommodation before that date, or any evidence that such a
request was denied. Construing Harding’s complaint liberally, he could be alleging that
Central Transport’s decision to deny an accommodation occurred when he was first not
allowed to drive in June 2011. (See DE # 1.) Of course, that is before December 3, 2013.
Alternatively, Central Transport proposes in its motion that perhaps Harding
believes an ADA violation occurred when it did not accommodate him on the date it
received notice of Harding’s independent medical examination. (DE # 27 at 7.) Harding
does not present this theory himself or mention the medical examination in his
complaint. Regardless, this notice came on September 21, 2012, which is also before
December 3, 2013.
There is no evidence of any discrete act taken by defendant to refuse an
accommodation within 300 days of the date Harding filed his charge. Therefore,
Harding’s ADA claim is time-barred and the defendant Central Transport is entitled to
For the reasons set forth above, the motion for summary judgment (DE # 26) is
GRANTED. The Clerk is to ENTER FINAL JUDGMENT stating:
Judgment is entered in favor of defendant Central Transport
LLC and against plaintiff William Harding, who shall take
nothing by way of his complaint.
Date: March 20, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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