GRISHAM v. TOWN OF CLARKSVILLE

Filing 62

ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 36 Motion for Summary Judgment is GRANTED in part and DENIED in part. See Entry for details. Signed by Judge Richard L. Young on 9/4/2018. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
PAUL GRISHAM,

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Plaintiff,
v.
TOWN OF CLARKSVILLE,
Defendant.

4:16-cv-00234-RLY-DML

ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Paul Grisham, is a former employee of the Town of Clarksville.
Following his termination, he brought the present action against the Town alleging it
failed to accommodate his disability, terminated him on the basis of his disability, and
retaliated against him for asking for an accommodation, in violation of the American with
Disabilities Act. The Town now moves for summary judgment. Having reviewed the
parties’ submissions, the designated evidence, and the applicable law, the court finds the
Town’ motion should be GRANTED in part and DENIED in part.
I.

Background
A.

Plaintiff’s Physical Impairments

Plaintiff suffered a back injury in high school and has had two back surgeries,
including a lumbar fusion in 2008. (Filing Nos. 31-8 and 50-5, Deposition of Paul
Grisham (“Plaintiff Dep.”) at 24-25). The fusion has caused stenosis, neuropathy, and
arthritis. (Filing No. 50-2, Declaration of Paul Grisham (“Grisham Decl.”) ¶ 1). Above
the site of the fusion, Plaintiff has a deteriorating disc and slipped vertebrae. (Id.). Those
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conditions have caused him chronic pain. (Id.). Consequently, in an effort to relieve the
pain, he receives “trigger-point” injections on a regular basis. (Id. at 32, 80).
B.

Plaintiff’s Position from 2010-2015

Plaintiff was hired by the Town in 2008 as a General Laborer in the Town’s Storm
Water Department. (Id. at 21, 36-37). The job requirements of the General Laborer
position included, but were not limited to, performing maintenance duties that require
walking, climbing, crouching, bending, and stooping throughout the Town as needed and
having the physical capability to lift, push or pull objects weighing up to one hundred
pounds. (Filing No. 38-2, Job Description at 1, 3). There was no light duty. (Filing No.
38-3, Deposition of Kent Marlin at 22, 25).
From 2010-2015, Plaintiff was under no medical restrictions. (Id. at 40). His job
varied from day to day but often included driving a truck, as well as maintaining,
repairing, and constructing catch basins and the infrastructure for storm water in
Clarksville. (Id. at 38-40). Plaintiff testified his supervisor, Kent Marlin, and the
Commissioner of the Storm Water Department, Tom Clevidence, informed him that if he
could not perform a certain task, to ask for help from his co-workers. (Id. at 75-76, 80).
Accordingly, from 2010 to 2015, Plaintiff received assistance from his co-workers if the
job included lifting, digging, and running a jack hammer. (Id. at 40, 43, 76).
Plaintiff also held a Commercial Driver’s License (“CDL”), which was on file
with the Town. (Id. at 42). Each time he renewed it, he underwent a fitness for duty
exam. (Id.). In every instance, the examiner noted Plaintiff’s history of having a lumbar
fusion surgery but expressly stated Plaintiff had no limitations, as he had been cleared by
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his surgeon. (Id. at 42-44; Filing No. 38-4, Commercial Driver’s License (“CDL”)
Medical Exam).
C.

Plaintiff’s Position Post-Merger

In December 2015, the Town’s Storm Water Department and the Town’s Street
Department merged into the Public Works Department. (Filing No. 50-3, Deposition of
Brad Cummings (“Cummings Dep.”) at 11-12). Brad Cummings, formerly the
Commissioner of the Street Department, became the Director of the Public Works
Department. (Id. at 12).
At a meeting held on December 4, 2015, Plaintiff learned that he had been
assigned to the chipper truck—a truck with a wood chipper in tow that was used to pick
up and clear debris on Town streets. (Id. at 51; Plaintiff Dep. at 45). The duties on the
chipper truck were formerly assigned to laborers from the Street Department.
(Cummings Dep. at 50). Cummings testified Plaintiff was assigned the job “so we could
commingle more people together” to “start the team-building process.” (Cummings Dep.
at 51-52).
Plaintiff’s new assignment involved repeatedly getting into and out of the pickup
truck and lifting and/or pulling tree limbs and other debris to the chipper. (Plaintiff Dep.
at 58). During the December 4 meeting, Plaintiff was given a Job Description for the
Public Works Department General Laborer Position. (Filing No. 38-2, Job Description).
On the last page of that document, Plaintiff checked “no” to the question, “Is there
anything that would keep you from meeting the job duties and requirements as outlined?”
(Id. at 6). The Job Description also stated that an employee was required “to notify the
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Public Works Director, Assistant Public Works Director or a Supervisor in writing” if he
or she was under “any restrictions.” (Id. at 2). After Plaintiff notified Cummings he did
not drive commercial vehicles for the Storm Water Department because of his
medications, Cummings informed him to provide the Town with a list of his restrictions
for review. (Filing No. 38-3, Cummings’ Jan. 4 Memo).
On the day he started his new assignment on the chipper truck—December 7,
2015—Plaintiff told Marlin and Clevidence that he did not think he could physically do
the job. (Plaintiff Dep. at 57; see also Filing No. 38-8). He did not tell Cummings of his
concern or ask for an accommodation at that time. (Plaintiff Dep. at 53-54). He
performed the job for twelve work days. (Id. at 53). The repetitive walking, lifting,
bending, pulling, and tugging aggravated his back. (Grisham Decl. ¶ 14). He was in
severe pain every night after work, and the pain became unbearable. (Id.).
D.

Plaintiff’s Requests for Accommodation

On January 4, 2016, Plaintiff approached Cummings and informed him he would
not work on the chipper truck because he had a disability for which he takes medication
on a daily basis. (Plaintiff Dep. at 62-63; Filing No. 40, Taped Conversation 1). He
requested an accommodation. (Plaintiff Dep. at 62-63; Filing No. 40). Cummings
informed Plaintiff he was not aware of any disability he had. (Filing No. 40; Filing No.
38-8). Cummings also reminded Plaintiff that at the December 4 employee meeting, he

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Plaintiff retained counsel at the end of December 2015 and tape recorded his conversations
with Cummings on January 4, 5, and 6, 2016. (Filing No. 40, CD). Plaintiff produced only the
January 4 and 5 conversations, not the January 6 conversation.
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informed all Storm Water employees to provide in writing any restrictions and/or drugs
they are taking that prevents or restricts them from doing their job. Plaintiff did not do
so. (Filing No. 40; Filing No. 37-8). Cummings also asked what accommodation
Plaintiff sought but was not given an answer. (Filing No. 40). After Plaintiff refused to
work the chipper truck again, Cummings sent him home. (Filing No. 40; Filing No. 378).
On January 5, 2016, Plaintiff again told Cummings he could not perform the job
on the chipper truck and asked for an accommodation. (Plaintiff Dep. at 62-63; Filing
No. 40; Cummings Dep. at 86-91; Filing No. 40). Cummings told Plaintiff to read the
employee handbook and put his request for an accommodation in writing. (Filing No. 40;
Cummings Dep. at 87). Plaintiff became upset and asked him if he “lived under a rock”
because “everyone knew he had a disability.” (Filing No. 40). Plaintiff said he could “do
a lot of things,” but he could not work on the chipper truck. (Id.). According to Plaintiff,
Cummings told him to do his job or go home. (Plaintiff Dep. at 63). According to
Cummings, he told Plaintiff that was the last day he would send Plaintiff home for
refusing to do his job and that Plaintiff either needed to perform his job duties or provide
information related to his alleged disability in writing. (Cumming Dep. at 88; Filing No.
37-8).
On January 6, 2016, Plaintiff submitted a written request asking to be returned to
his former assignment or a like position. (Filing No. 38-10, Written Request). He also
submitted two medical records. (Filing No. 38-11, Medical Records). One of the records
was from an October 28, 2015 office visit with the Norton Leatherman Spine Center. (Id.
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at 3-4). Those records discussed Plaintiff’s back issues and medications for pain. (Filing
No. 38-11 at 3-4). The other record was a doctor’s note from Clark Physician Group,
Thoracic and Vascular Surgery Center, dated October 19, 2015, which noted Plaintiff
was permitted to return to work from stint placement surgery with the following
restrictions: “No prolonged walking or standing.” (Id. at 1).
Cummings asserts Plaintiff raised his voice in an angry tone during the meeting
and at one point, jumped up from his seat. (Filing No. 38-13, Cummings’ Jan. 6 Memo).
Plaintiff testified he frequently stood up during the meeting because his back was hurting,
and standing alleviated some of the pain. (Plaintiff Decl. ¶ 20).
At the end of the meeting, Cummings told Plaintiff he could give him a lightweight chain saw. (Cummings Dep. at 93; Plaintiff Dep. at 64). He also told him he
would review Plaintiff’s documentation with Anita Neeld of Human Resources.
(Cummings Dep. at 91-93). Plaintiff then left Cummings’ office to go to his assigned job
on the chipper truck. (Plaintiff Dep. at 66-67). Cummings contacted Neeld and made an
appointment with her for 9:30 a.m. (Cummings Dep. at 93-94).
E.

Plaintiff’s Termination

In the interim, Plaintiff’s co-worker, Jonathan Booth, reported to Marlin that
Plaintiff refused to get off the chipper truck and assist him. (Cummings Dep. at 94-95).
When Cummings found out, he told Marlin to observe Plaintiff. (Id. at 96). Marlin
informed Cummings Plaintiff did not get out of the truck on three stops; after the third,
Marlin spoke to Plaintiff and gave him a warning. (Id.; Filing No. 38-13, Cummings’
Jan. 6 Memo). According to the Town, Plaintiff continued to sit on the truck. (Filing No.
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38-13). Plaintiff denies that fact. (Plaintiff Dep. at 67 (“Q: Were you doing your job on
the chipper truck that day? A: Yes. Q: Had you been getting in and out of the truck and -A: Yes. -- picking up debris? A: Yes)). Cummings then met with Neeld and terminated
him. (Cummings Dep. at 98). The stated reason for his termination was insubordination.
(Filing No. 38-14, Termination Document).
F.

Plaintiff Files for Social Security Disability

Two of Plaintiff’s healthcare providers, Dr. Louie Williams and Dr. Rolando
Puno, recommended that he not return to work at his most recent visits with them in July
and October 2016, respectively. (Plaintiff Dep. at 28-29). They did not give him any
restrictions; they simply recommended that he not work and apply for social security
disability. (Id.).
On November 8, 2016, Plaintiff applied for social security disability, stating the
start date of his disability was January 6, 2016. (Filing No. 38-15, Application for Social
Security Disability Benefits at 12). In the application, Plaintiff stated that his “body is
worn out and [he] can no longer do the work,” and that he was “fired because [he] could
no longer due [sic] the work required with all [his] health problems.” (Id. at 15, 21).
II.

Summary Judgment Standard
The purpose of summary judgment is to “pierce the pleadings and to assess the

proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant
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bears the initial responsibility of informing the district court of the basis of its motion,
and identifying those portions of designated evidence which demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After
“a properly supported motion for summary judgment is made, the adverse party ‘must set
forth specific facts showing that there is a genuine issue for trial.’” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (quotation marks and citation omitted).
A factual issue is material only if resolving the factual issue might change the
outcome of the case under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th
Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable
jury to return a verdict in favor of the non-moving party on the evidence presented.
Anderson, 477 U.S. at 248. In deciding a motion for summary judgment, the court “may
not ‘assess the credibility of witnesses, choose between competing reasonable inferences,
or balance the relative weight of conflicting evidence.’” Bassett v. I.C. Sys., Inc., 715 F.
Supp. 2d 803, 808 (N.D. Ill. 2010) (quoting Stokes v. Bd. of Educ. of the City of Chicago,
599 F.3d 617, 619 (7th Cir. 2010)). Instead, it must view all the evidence in the record in
the light most favorable to the non-moving party and resolve all factual disputes in favor
of the non-moving party. Anderson, 477 U.S. at 255.
III.

Discussion
A.

ADA Discrimination

The ADA prohibits employers from discriminating against a “qualified individual”
because of his disability. 42 U.S.C. § 12112(a). A plaintiff can prove disability

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discrimination under the ADA in three 2 ways, two of which are applicable here. They
are: (1) by claiming the defendant intentionally acted on the basis of his disability, and
(2) by claiming the defendant failed to provide him a reasonable accommodation. A.H.
by Holzmueller v. Ill. High Sch. Ass’n, 881 F.3d 587, 592-93 (7th Cir. 2018).
1.

Reasonable Accommodation

To establish a prima facie case for failure to accommodate, a plaintiff must show
that: (1) he is a qualified individual with a disability; (2) his employer was aware of his
disability; and (3) the employer failed to reasonably accommodate his disability.
Kotwica v. Rose Packing Co., 637 F.3d 744, 747-48 (7th Cir. 2011). To survive a motion
for summary judgment, a plaintiff must present the court with evidence that, if believed
by a trier of fact, would establish all three elements. Id.
A qualified individual with a disability is defined as an individual with a disability
“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).
“An employee begins the accommodation process by notifying h[is] employer of h[is]
disability;” at that point, “the employer is obligated to engage in an interactive process to
determine the appropriate accommodation under the circumstances.” Spurling v. C & M
Fine Pack, Inc., 739 F.3d 1055, 1061 (7th Cir. 2014). However, if the accommodation
“would impose an undue hardship” on the operation of the employer’s business, an
accommodation need not be made. 42 U.S.C. § 12112(b)(5)(A). “Whether or not an

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The third way is by showing the “defendant’s rule disproportionately impacts disabled people.”
A.H., 881 F.3d at 592-93.
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individual meets the definition of a qualified individual with a disability is to be
determined as of the time the employment decision was made.” Bay v. Cassens Trans.
Co., 212 F.3d 969, 974 (7th Cir. 2000).
a.

Disability

The Town first argues Plaintiff is not disabled within the meaning of the ADA.
An individual has a disability if he has “a physical or mental impairment that
substantially limits one or more major life activities of such individual.” 42 U.S.C. §
12102(1). A “physical impairment” includes “[a]ny physiological disorder or condition .
. . affecting one or more body systems, such as . . . [the] musculoskeletal system[.]” 29
CFR § 1630.2(h). “Major life activities” include, but are not limited to: performing
manual tasks, walking, standing, lifting, and bending, as well as the operation of a major
bodily function, including musculoskeletal functions. 29 C.F.R. §§ 1630.2(i)(1)(ii), (iii).
Whether a plaintiff’s condition “substantially limits” a major life activity is
construed broadly in favor of coverage; it is not an exacting standard. See 29 C.F.R. §
1630.2(j)(1)(i) (“[T]he term ‘substantially limits’ shall be construed broadly in favor of
expansive coverage, to the maximum extent permitted by the terms of the ADA.
‘Substantially limits’ is not meant to be a demanding standard.”). “An impairment need
not prevent, or significantly or severely restrict, the individual from performing a major
life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(ii).
Instead, an impairment is a disability if it “substantially limits the ability of an individual
to perform a major life activity as compared to most people in the general population.”
Id.
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Plaintiff submits he suffers from chronic back pain which affects his activities of
daily living. Walking, lifting, and bending exacerbate his back pain, “particularly if [he]
[is] engaged in repetitive motion.” (Plaintiff Decl. ¶ 3). Consequently, he avoids cutting
the grass, raking leaves, and vacuuming; avoids shopping with his wife; avoids “any
athletic or physical activities”; avoids lifting “anything, to the extent possible,” including
his small dogs; and avoids “prolonged standing, such as cooking or washing dishes.” (Id.
¶¶ 4-7).
In addition, Plaintiff has undergone two back surgeries to treat his conditions, and
his doctor has recommended a third operation. (Plaintiff Dep. at 34). Moreover, he
regularly obtains “trigger-point” injections to attempt to address the pain. (Id. at 32, 80).
The court finds Plaintiff’s back condition and the limitations it poses on his
activities of daily living form a basis for a reasonable jury to find he has a disability
within the meaning of the ADA.
b.

Qualified Individual with a Disability

Next, the Town argues Plaintiff was not a qualified individual with a disability at
the time of his termination for three reasons. First, it argues that having a CDL was an
essential job function of a General Laborer, and Plaintiff, by his own testimony, admitted
he would not have been able to pass a CDL exam in January 2016.
A CDL is listed as a job requirement in the General Laborer Job Description under
the section entitled “Knowledge.” (Filing No. 38-2 at 4). Plaintiff testified he has never
been denied a CDL since he last renewed it in 2015. (Plaintiff Dep. at 20, 44). When
asked at his deposition whether he thought he would pass the CDL physical exam today,
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he answered “no” because his eyesight and his blood pressure had gotten worse.
(Plaintiff Dep. at 77). When asked if he thought he could have passed the exam in
January 2016, he replied, “I don’t know.” (Id.). Based on this testimony, the court
cannot rule, as a matter of law, that Plaintiff would not have passed the CDL exam in
January 2016.
Even if Plaintiff could not renew his CDL in 2016, he disputes that maintaining a
CDL was an essential function of the General Laborer job. “The content of a job
description is merely one of several factors courts consider when determining whether a
function is essential.” Brown v. Smith, 827 F.3d 609, 614 (7th Cir. 2016) (citing 29
C.F.R. § 1630.2(n)(3)). One relevant factor is the “work experience of past incumbents
on the job.” 29 C.F.R. § 1630.2(n)(3)(vi). Here, Plaintiff testified that many General
Laborer assignments do not require a CDL. (Plaintiff Decl. ¶ 28). A CDL is only
required for driving trucks with air brakes, such as the large dump trucks, the garbage
truck, and the Vactor truck. (Id.). Other jobs with smaller trucks, such as the chipper
truck and “the truck with the crane” did not require a CDL to operate them. (Id.). The
court therefore finds a genuine issue of fact exists on whether maintaining a CDL was an
essential function of the General Laborer job. See Brown, 827 F.3d at 613 (finding “the
essential-function inquiry is a factual question”).
Second, the Town argues the chipper truck was no more laborious, and involved
the same movements, than any other General Laborer job. Plaintiff disputes the Town’s
assertion, arguing that repetitive bending, pulling, twisting, and tugging involved with the
chipper truck assignment was more intense than in other jobs, and caused him extreme
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pain. (Plaintiff Decl. ¶¶ 14 (referring to the time he worked the chipper truck as a “living
hell”)). That is why he requested he be placed in his prior position “or any other
assignment with [a] similar level of physical activity,” like clearing ditches and
responding to storms. (Id. ¶¶ 15, 17). The court therefore finds that whether all jobs
involve the same physical activity is a fact issue and must be determined by the trier of
fact.
Lastly, the Town argues that Plaintiff’s representations in his application for social
security disability benefits demonstrates that he was not qualified to perform his job with
or without an accommodation.
A claim for social security disability benefits and a claim for disability
discrimination do not necessarily conflict; “an SSDI claim and an ADA claim can
comfortably exist side by side.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
802-03 (1999). That is because “when the Social Security Administration determines
whether an individual is disabled for SSDI purposes, it does not take the possibility of
‘reasonable accommodation’ into account.” Id. at 803 (emphasis in original).
Here, Plaintiff’s application for disability benefits appears to conflict with his
ADA claims. In his application, he represented that he could not perform his job due to
his health condition. Therefore, he must offer a sufficient explanation of the apparent
inconsistency with the necessary elements of an ADA claim. Id. at 806. “To defeat
summary judgment, the explanation must be sufficient to warrant a reasonable juror’s
concluding that, assuming the truth of, or the plaintiff’s good-faith belief in, the earlier

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statement, the plaintiff could nonetheless ‘perform the essential functions’ of h[is]job,
with or without accommodation.” Id.
In his declaration, Plaintiff explains he is able to perform manual labor work as a
General Laborer as long as he is accommodated for his physical limitations. (Plaintiff
Decl. ¶ 29). And due to those limitations, and his need for an additional surgery, he fears
he will not find work to provide for his family. (Id.). Therefore, he applied for social
security disability benefits. (Id.). The court finds his explanation is sufficient for
purposes of this motion. The ultimate issue is, again, whether he could perform the
General Laborer job with accommodations at the time of his termination.
c.

Knowledge

At the time Plaintiff was assigned to the chipper truck, the documents on file with
the Town indicated Plaintiff had no restrictions. (See Plaintiff Dep. at 48 (testifying he
indicated on the signed Job Description that he did not have “anything” that would keep
him from doing his job duties); see also id. at 57 (“Q: But you had provided them
documentation that indicated you had no restrictions; is that correct? A: I had no
restrictions to perform the job that I had held previously.”)). And although there is
evidence that Marlin and Clevidence knew about Plaintiff’s limitations, Cummings—the
decision-maker in this case—was only aware of Plaintiff’s 2008 back fusion surgery from
his review of his employee file prior to the merger. (Cummings Dep. at 82 (“I tried to
figure out what his requests possibly could be, being that there was no physical
restrictions that I could see and I wasn’t aware of any limitations or restriction that he had
had.”)). And during Plaintiff’s meetings with Cummings on January 4 and 5, 2016, he
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never identified what his claimed disability was or what type of accommodation he
needed. (See Cummings Dep. at 88 (“Q: Am I correct that you felt you could not provide
an accommodation until he provided additional information? A: Yes, I did not – I was
not aware of what issue to accommodate for.”)).
By January 6, however, Plaintiff submitted a letter with two medical records
evidencing his chronic back issues. Cummings’ notes from that meeting reflect that
Plaintiff told him it was hard for him to twist, pull, lift, bend, and push items. That
information, coupled with his prior knowledge of Plaintiff’s back surgery, raise a genuine
issue of material fact as to whether Cummings knew of Plaintiff’s disability prior to his
termination.
d.

Reasonable Accommodation/Interactive Process

Under the ADA, a “reasonable accommodation” may include “job restructuring,
part-time or modified work schedules, reassignment to a vacant position, . . . and other
similar accommodations for individuals with disabilities,” 42 U.S.C. § 12111(9)(B).
Plaintiff testified he could do any job except for the garbage truck and the chipper truck.
(Plaintiff Decl. ¶16). Cummings agreed he could have been assigned to the pool of
laborers, working on clearing ditches, responding to rain events, and other jobs as
needed. (Cummings Dep. at 123-24; 128; Plaintiff Decl. ¶ 17). Or, he could have been
assigned to the Vactor truck, if the laborer who had just been assigned to it weeks before
was moved back to the chipper truck. (Cummings Dep. at 118; Plaintiff Decl. ¶ 25).
Accordingly, the record suggests that a reasonable accommodation could have been made
as of January 6, 2016.
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The record also reflects that Cummings did not consider Plaintiff’s request for an
accommodation because he and Neeld determined Plaintiff engaged in conduct worthy of
termination—he refused to work. Plaintiff disputes that fact. Accordingly, a reasonable
jury could find the Town failed to engage in an interactive process with Plaintiff to
determine whether a suitable accommodation could have been made.
e.

Undue Hardship

Once an employee has shown that an accommodation appears reasonable on its
face, the employer has the burden of establishing that the accommodation would create
an undue hardship in the context of the employer’s operations. U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 402 (2002).
The Town argues placing Plaintiff in another position would create an undue
hardship because it would require other employees to do his work. But the Town fails to
offer a specific explanation for why it could not have placed Plaintiff in the pool of
laborers who were performing, for example, ditch clearing. As a result, the Town has not
shown that transferring Plaintiff to another position would have unreasonably burdened
its operations, at least on the evidence before the court.
f.

Conclusion

For the reasons explained above, the Town’s Motion for Summary Judgment on
Plaintiff’s claim for failure to accommodate is DENIED.
2.

Disability Discrimination

To establish a prima facie case of disparate treatment under the ADA, a plaintiff
must show that: (1) he is “disabled” as defined by the ADA; (2) his work performance
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met the defendant’s legitimate expectations; (3) he suffered an adverse employment
action; and (4) similarly situated individuals outside the protected class were treated more
favorably. Dickerson v. Bd. of Tr. of Comm. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th
Cir. 2011). The issue in dispute is whether he was treated differently than similarly
situated non-disabled employees.
To satisfy the “similarly situated” prong of the prima facie case, an employee must
be “directly comparable in all material respects.” Patterson v. Ind. Newspapers, Inc., 589
F.3d 357, 365-66 (7th Cir. 2009). This requires the plaintiff to show not only that the
employees reported to the same supervisor, engaged in the same conduct, and had the
same qualifications, but also show that there were no “differentiating or mitigating
circumstances as would distinguish . . . the employer’s treatment of them.” Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000).
Plaintiff’s proposed comparators are two employees who were misusing the
Town’s clock-in calculator. Specifically, the first employee clocked in the second
employee who had not yet reported to work in late 2017. (Cummings Dep. at 71).
Cummings terminated the second employee because he had been issued written warnings
for prior work-related issues—either taking extended lunch hours or for failing to report
that he hit a mailbox. (Id.). Cummings suspended the first employee. (Id.).
Plaintiff argues he was treated differently than his would-be comparators because
he was terminated on his first alleged instance of misconduct. The court does not agree.
The comparators were disciplined for attempting to conceal the second employee’s tardy
attendance. Plaintiff did not engage in similar conduct. Instead, he was disciplined for
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allegedly refusing to do his job. Because Plaintiff has failed to identify a similarly
situated non-disabled employee, he has failed to establish his prima facie case.
Accordingly, the Town’s Motion for Summary Judgment on Plaintiff’s disparate impact
claim is GRANTED.
B.

Retaliation

To establish a prima facie case of retaliation under the ADA, a plaintiff must
establish that: (1) he engaged in statutorily protected activity; (2) his employer took an
adverse employment action; and (3) a causal connection exists between the protected
activity and the adverse action. Dickerson, 657 F.3d at 601. Only the third element is in
dispute.
The Town’s stated reason for terminating Plaintiff was his refusal to do his job.
Plaintiff argues “his refusal to perform his job and his requests for reasonable
accommodation were one in the same.” (Filing No. 50, Response at 28). In other words,
Plaintiff refused to work on the chipper truck because he physically could not do the job,
not because he simply preferred another job.
The court finds a reasonable juror could find Plaintiff was terminated because he
asked for an accommodation. Plaintiff submitted the requested paperwork on January 6,
2016, and, he contends, he went to work on the chipper truck as directed. In the interim,
Cummings met with Neeld and decided to terminate him without ever considering
whether an accommodation could be made. The evidence in this regard is admittedly
thin, but enough to get to a jury. Accordingly, the Town’s Motion for Summary
Judgment on Plaintiff’s retaliation claim is DENIED.
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IV.

Conclusion
For the reasons set forth above, the court GRANTS in part and DENIES in part

Defendant’s Motion for Summary Judgment (Filing No. 36).

SO ORDERED this 4th day of September 2018.

Distributed Electronically to Registered Counsel of Record.

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