Opinion
Case No. 96 C 1208
June 20, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Rudolph Winfrey is legally blind. He brings this action against his current employer, the City of Chicago (the "City"), alleging that the City violated Titles I and II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 by failing to reasonably accommodate his visual impairment when it refused to return him to work between March 7, 1994 and December 1, 1996. Winfrey further claims that the City continued to violate the ADA and the Rehabilitation Act after Winfrey returned to work on December 2, 1996. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c). This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (#56), Defendant's Motion for Summary Judgment (#74), Defendant's Motion to Strike (#78), and Plaintiff's Motion to Amend the Complaint (#81). For the reasons set forth below, Plaintiff's Motion for Partial Summary Judgment is DENIED, Defendant's Motion for Summary Judgment is GRANTED, Defendant's Motion to Strike is GRANTED IN PART and DENIED IN PART, and Plaintiff's Motion to Amend the Complaint is DENIED.
I. FACTUAL BACKGROUND
The following facts are taken from the parties' Local Rule 12(M) and 12(N) Statements and accompanying exhibits and are undisputed unless indicated otherwise.
On May 6, 1971, the City hired Winfrey as a laborer in its Department of Streets Sanitation ("DSS"). Defendant's Local Rule 12N(3)(a) Statement ¶ 1. Laborers perform many different sets of responsibilities within the entire range of duties set forth in the job specification for the title of Laborer. Id. ¶ 3. For three months in 1971 and while holding the position of laborer, Winfrey performed the duties of a ward clerk. Id. ¶ 4. According to the City, Winfrey was required to be available to perform the duties of a laborer at any time while he was performing ward clerk duties. Id. Similarly, Felisha Belcher and I.J. Gardner held the position of laborer but worked as ward clerks between December 2, 1996 and February 8, 1999. Id. ¶ 5.
In 1977, Winfrey began losing his eye sight. Id. ¶ 6. The City knew of Winfrey's visual impairment in 1977. Id. ¶ 8. By 1986, Winfrey was legally blind. Id. ¶ 7. With the exception of a negative performance review on September 21, 1977, Winfrey continued to satisfactorily perform the duties assigned to him until June, 1991. Id. ¶ 9; Plaintiff's Ex. KK. On June 25, 1991, Winfrey was working on a ledge when he fell twenty-five feet and broke one of his legs. Defendant's Local Rule 12N(3)(a) Statement ¶ 10.
Winfrey was off work and received duty disability until December 16, 1991. On that date, he was released to perform a "desk job only." Defendant's Answer to Plaintiff's First Am. Cmplt. ¶ 13; Plaintiff's Ex. DD. The City returned Winfrey to work behind a garbage truck in January, 1992. Defendant's Local Rule 12N(3)(a) Statement ¶ 13. Shortly thereafter, Winfrey requested and was granted vacation leave.Id. ¶ 14. While Winfrey was on vacation leave, the City purportedly attempted to identify another position for Winfrey. Id. ¶ 15. On May 31, 1992, Winfrey submitted a letter along with a copy of his resume to Assistant Commissioner Becky Frederick of the DSS to acquaint her with his abilities, skills, and experience. Id. ¶ 16.
The City did not return Winfrey to work in 1992. Id. ¶ 21. On August 31, 1992, Winfrey filed a charge of discrimination with the Illinois Department of Human Rights ("IDHR") alleging that the City failed to accommodate his visual impairment by declining to return him to work. Id.; Plaintiff's Ex. D. Winfrey admitted in his charge that he could not safely work on a garbage truck. Plaintiffs Ex. D. While Winfrey's charge of discrimination was pending before the IDHR, Winfrey required additional surgery on his leg and began receiving worker's compensation. Defendant's Local Rule 12N(3)(a) Statement ¶¶ 22, 23. On October 27, 1993, William C. Bresnahan, then the City's Assistant Commissioner, informed Winfrey's counsel that Winfrey was on temporary disability and remained an employee of the City. Plaintiffs Ex. EE.
During his time off work, Winfrey attended courses at Wright College. Defendant's Local Rule 12N(3)(a) Statement ¶ 24. Winfrey completed approximately 40 hours of courses in the areas of computers and math and maintained a grade point average of 3.8. Id. ¶ 25. Winfrey has also taken courses at the Chicago Lighthouse for the Blind and the Illinois Department of Visual Rehabilitation. Id. ¶ 26.
In early 1994, Winfrey received a notice from the City requiring him to report for a physical to return to active duty. Defendant's Local Rule 12N(3)(a) Statement ¶ 28. On January 17, 1994, Mercy Works released Winfrey to work with the following restrictions: ground level work only, no ladders or heights and limited standing/walking. Bresnahan Aff., Ex. 1. The Work Status Discharge Sheet also stated: "Patient has visual impairment and will see private eye physician 3/94. This is not related to present injury." Id. Winfrey claims that on March 3, 1994, Mercy Works released Winfrey to return to work on March 7, 1994 with no restrictions. Winfrey's Ex. A. The City disputes that Winfrey was released with no restrictions and maintains that Winfrey was released only with respect to his leg injury for which it appeared he had been successfully treated. Defendant's Local Rule 12M(3)(a) Statement ¶ 29. The City assumed that Winfrey could not safely return to work as a laborer with his visual impairment because the January, 1994 release from Mercy Works indicated that Winfrey had a visual impairment unrelated to his injury and that he would see a private physician. Winfrey never provided any medical documentation from his private physician or any documentation indicating that he could return to work as a laborer given his visual impairment. Plaintiffs Exh. C., ¶¶ 8, 9.
In March 1994, the City did not attempt to contact Winfrey regarding his disability or the jobs he could perform. Defendant's Local Rule 12N(3)(a) Statement ¶ 35. When Winfrey reported to the DSS for work, he was informed that no work was available for him. Id. ¶ 30. The City did not return Winfrey to work at any time in 1994 or 1995. Id. ¶ 32. In 1994, Winfrey filed a charge of discrimination with the EEOC alleging that the City was discriminating against him because of his disability by failing to return him to work. Plaintiffs Ex. FE. In 1994, open positions existed for laborers and ward clerks in the DSS. Defendant's Local Rule 12N(3)(a) Statement ¶ 37. In 1995, open positions existed for laborers, ward clerks, and dispatchers. Id. ¶ 43.
City disputes this factual assertion, but the evidence the City relies on does not contest Winfrey's assertion. Defendant's Local Rule 12N(3)(a) Statement ¶ 35. Rather, the City's responses to Interrogatories Nos. 2 and 3 detail conversations and contact between the City and Winfrey beginning on September 21, 1995 but do not address the March, 1994 time period. See Plaintiff's Ex. C. Accordingly, Winfrey's factual assertion is deemed admitted.
On November 26, 1996, the City offered Winfrey a position as a ward clerk for the DSS, effective December 1, 1996. Plaintiffs Ex. I. Winfrey returned to work on December 2, 1996 as a ward clerk. Defendant's Local Rule 12N(3)(a) Statement ¶ 45. From December 2, 1996 until sometime after February 10, 1997, Winfrey's duties included sitting at a desk and listening to a tape recorder. Id. ¶ 50.
City's response to Winfrey's Interrogatory No. 2 outlines numerous contacts between the City and Winfrey between September 21, 1995 and June 14, 1996, but the City did not include these facts in its local rule statement of undisputed facts. See Plaintiff's Ex. C. Thus, the Court disregards them for purposes of summary judgment.
On December 19, 1996, Winfrey's counsel requested that persons on behalf of Winfrey be allowed to enter the City's work place to conduct a work-site evaluation of the laborer, ward clerk, and dispatcher positions. Plaintiffs Ex. P. When Winfrey initially returned to work, Francisco Carranza, Winfrey's supervisor, did not try to accommodate him because he was anticipating a meeting with the Illinois Department of Rehabilitation Services and the Lighthouse for the Blind to "brainstorm and develop some adjusted ward clerk duties." Carranza dep., p. 118. Carranza testified: "I didn't try to interact [with Winfrey]. I didn't try to accommodate him. He, Mr. Winfrey, did, you know, answer the phone calls, but his status to me was unknown at the time. I wasn't sure how he was going to fit." Id.
The City agreed to an assessment of the ward clerk and dispatcher positions. Defendant's Local Rule 12N(3)(a) Statement ¶ 86. Winfrey asserts that the City has opposed an assessment being performed of the laborer's position. Plaintiffs Local Rule 12M Statement ¶ 85. The City disputes this statement and claims that assessments were performed. However, paragraph 5 of Bresnahan's affidavit, which the City relies on, does not address whether a work-site assessment of the laborer's position was performed. Accordingly, Winfrey's factual assertion is deemed admitted.
Consultants from the Chicago Lighthouse met with Winfrey and Carranza on February 10, 1997. Defendant's Local Rule 12N(3)(a) Statement ¶ 54. Carranza prepared a partial list of essential duties for the position of Ward Clerk for the consultants to use when making a recommendation regarding assisting Winfrey in performing the ward clerk duties. Id. ¶¶ 55, 56. The list of four of the essential duties for the ward clerk position which Carranza prepared for the Chicago Lighthouse consultants included:
1) maintain morning and afternoon ward's refuse collection activities (number of units completed for all 10 wards in D3);
2) contact all 10 wards on a daily or occasional basis to issue additional instructions or relay updated information;
3) answer telephonic complaints from community residents and maintain a log of service requests and forward them to the appropriate ward for corrective action; and
4) use an FM radio to contact any of 43 different drivers/spreaders assigned to different routes to log their departure and arrival on assigned routes and contact individuals as needed.
Plaintiff's Ex. Y. Carranza did not give the consultants a copy of the complete job description for the ward clerk's position. Plaintiffs Local Rule 12M Statement ¶ 57.
The duties for the ward clerk job include, but are not limited to the following: distribute tickets (administrative adjudicative and parking enforcement), sign-in the refuse collection coordinators, collect tickets, contact wards for Sunday baskets, receive drivers for Sunday baskets, pick-up mail, handle some payroll functions, answer the radio and telephones, order supplies, prepare requisition forms to order supplies, pick-up supplies, monitor supply use, facilitate management, complete orders for repairs, occasionally hand out forms, handle attendance, and handle special details for special overtime, i.e. Saturday baskets. Id. ¶ 59. of these duties, Winfrey is able to answer the telephones and calls on the radio. Id. ¶ 60. Winfrey also uses the radio to contact the wards to pass on information. Id. ¶ 61.
On April 24, 1997, a consultant from the Chicago Lighthouse faxed the City a letter detailing his recommendations. Defendant's Local Rule 12N(3)(a) Statement ¶ 65; Plaintiff's Ex. V. The consultant considered the four essential duties identified by Carranza and provided the following recommendations:
1) Maintain number of units complete for all 10 wards would be currently done by having Mr. Winfrey use a tape recorder to get the information and a Slate Stylus to record data in his own informational form (Braille). A typewriter could be used to transpose recorded data into print form for other workers to keep them appraised of numbers.
2) Contact all 10 wards to issue additional instructions or relay updated information. Mr. Winfrey would use tape recorder and Braille equipment to have all data at hand for his information as well as way to relay that data out. Would not have to have any modification for phone. Again typewriter to update data for other employees information.
3) Answer telephone complaints and maintain a log of service requests and forward to appropriate ward for corrective action. Mr. Winfrey could again use his tape recorder to retain details on phone conversation[s]. He would again transpose this data into braille for his own data to follow up on these conversations. Again if a written document needs to be filed, he could type data on a card or paper to have written documentation of service request and what occurred by referral though Mr. Winfrey.
4) Use an FM radio to contact 43 different drivers/spreaders assigned to routes to log their departure and arrival on assignments and contact individuals as needed. Mr. Winfrey needs to be trained on usage by Bureau Sanitation and if buttons need to be identified for ease of recognition, the Chicago Lighthouse would be able to handle that issue. Any documents needed by Mr. Winfrey could be brailled by the Chicago Lighthouse if documents are not changed constantly. Mr. Winfrey would be able to update documents once he knows what is going on and someone give him the updates.
Plaintiff's Ex. Y. The consultant also indicated that it would be preferable for Winfrey to use a computer with a speech synthesizer in place of a tape recorder and braille equipment because a computer would all him to perform more jobs duties. Id. Winfrey used his own tape recorder at work. Defendant's Local Rule 12N(3)(a) Statement ¶ 67. The City did not supply Winfrey with a slate and stylus. Id. As a result of the consultant's recommendations, Carranza asked Winfrey whether he wanted to move his desk closer to the radio. Id. ¶ 66.
City claims that Winfrey stated he would not use a light probe at his desk and that he did not want a Brailler. Defendant's Local Rule 12N(3)(a) Statement ¶¶ 67, 68. The City relies on letters from Daniel Helpinstine of The Chicago Lighthouse to Barbara Smith of the City in which Helpinstine states that Winfrey stated he would not use a light probe and did not want a Brailler. Helpinstine's statement as to what Winfrey stated is inadmissible hearsay, and thus, unusable in summary judgment proceedings. Minor v. Ivey Tech State College, 174 F.3d 855, 856-57 (7th Cir. 1999).
Winfrey performs the four ward clerk duties assigned to him well. Id. ¶ 70. At his deposition in this matter, Carranza testified: "I'm very happy with Mr. Winfrey's performance. Mr. Winfrey does a good job." Id. ¶ 71. Carranza also stated that Winfrey "wants to do more. He wants to be more involved in the operations." Id. ¶ 72. When asked why Winfrey does not perform the other duties of Ward Clerk, Carranza replied that Winfrey was not trained, Winfrey cannot see, or someone else was performing the task. Id. ¶ 75. In March 1998, a more extensive assessment was done of the ward clerk duties and a recommendation prepared regarding Winfrey's duties as ward clerk. Id. ¶ 83; Plaintiff's Ex. W. In April, 1998, Ben Campney, Principal Programmer of the City of Chicago. DSS, approved the procurement and obtaining of a computer for Winfrey, along with adaptor equipment to be used for voice feedback and special software. Campney ME, ¶ 3.
II. DISCUSSION
A. Summary Judgment Motions
Federal Rule of Civil Procedure 56 mandates the entry of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). "A party opposing a properly supported motion for summary may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial." Id. at 256.
1. Timeliness of Winfrey's Claims
As a threshold matter, the City argues that Winfrey's claims are untimely. Specifically, the City maintains that Winfrey's cause of action arose on April 21, 1992 when the City purportedly denied his request to return to work. Winfrey did not file his EEOC charge within 300 days of April 21, 1992. Thus, the City argues that Winfrey's Title I ADA claim is time-barred because more than 300 days elapsed between the time the City refused to return Winfrey to work and when he filed his charge of discrimination with the EEOC. The City also argues that Winfrey's Title II ADA claim and Rehabilitation Act claim are time barred because he failed to file his complaint within two years of April 21, 1992.
As Judge Manning recognized in her opinion in this matter granting in part and denying in part the City's motion to dismiss, an employment decision that is merely an effect of a prior employment decision usually does not constitute a separate and distinct discriminatory act and an employer's decision not to undo a discriminatory decision is not a fresh act of discrimination. Winfrey v. City of Chicago, 957 F. Supp. 1014, 1018-1019 (N.D. Ill. 1997). Similarly, the denial of a request for reconsideration is generally not a separate act of discrimination. Id. However, if an employer's decision to remove an employee was "ad hoc," not a decision for all time or the plaintiff neither knew nor should have known that it was a decision for all time, then the statute of limitations does not start to run:
Only if the defendant has made clear that the plaintiff will not receive further consideration is the plaintiff on notice of a permanent exclusion-a freeze, a ceiling on advancement, parallel to a denial of tenure-that starts the statute of limitations running on any future job applications. or put differently, if it obviously would be futile to make a future application for the job for which he has just been turned down, the plaintiff cannot delay suit and use those futile applications to delay the running of the statutory period indefinitely.Webb v. Indiana National Bank, 931 F.2d 434, 437 (7th Cir. 1991).
The City contends that Winfrey cannot "subvert the statute of limitations merely by renewing a demand for reinstatement and then calculating the applicable time period from the date of the subsequent denial." Defendant's Memo., p. 12. Winfrey did not merely renew a demand for reinstatement. Winfrey was apparently taken off the payroll after he attended a pre-hearing conference in April or May 1992 regarding the City's charge of absenteeism. Defendant's Ans. to Plaintiff's First Am. Cmplt. ¶¶ 20, 21. However, the City told Winfrey that he was still an employee of the City and that the City was looking for a position for him. Id. ¶ 22. Viewing the evidence in the light most favorable to Winfrey, the City expressly indicated that it was not a permanent exclusion by stating that it was looking for a position for him and he would be contacted. When Winfrey went to the City's personnel office for the DSS for a job assignment, he was told that he would be called, and in fact, the City contacted Winfrey in early 1994. Id. ¶ 24. Winfrey received a notice from the City to report for a physical to return him to active duty. Id. ¶ 27. Winfrey successfully completed the physical and was released to return to work. Id. ¶ 28. Winfrey and his counsel met with Bresnahan, and Winfrey was told to report the following day to the DSS. Id. 29. When Winfrey reported to the DSS, he was told that no work was available for him. Id. ¶ 30. Thus, Winfrey did not renew a demand for reinstatement where "it [was] plain that reapplication [was] not invited." Kennedy v. Chemical Waste Management, Inc., 79 F.3d 49, 51 (7th Cir. 1996). Moreover, the fact that the City offered Winfrey a position in November, 1995 undermines its claim that its April, 1992 decision was a permanent decision. Given these facts, a reasonable jury could conclude that the City's refusal to return Winfrey to an active position in March, 1994 was an independent act of discrimination. The City's motion for summary judgment is denied with respect to the timeliness of Winfrey's claims.
2. Whether Winfrey Was a Qualified Individual?
Winfrey maintains that the City's failure to return him to work between March 1994 and December 1, 1996 violated its duty to reasonably accommodate his visual impairment. To establish a claim for failure to accommodate under the ADA or the Rehabilitation Act, Winfrey must show that he was or is a disabled person as defined by the statute, that the City knew about his disability, and that he was otherwise qualified to perform the essential functions of the job, with or without a reasonable accommodation. Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 674 (7th Cir. 1998); Gile v. United Airlines, Inc., 95 F.3d 492 (7th Cir. 1996). For purposes of summary judgment, the City does not dispute that Winfrey is disabled and that it has knowledge of his disability. The City maintains that Winfrey fails to meet his burden of proof because he is not an "otherwise qualified individual."
The ADA defines a "qualified individual with a disability" 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). The EEOC has interpreted "essential functions" to mean "the fundamental job duties of the employment position. . . . [It] does not include the marginal functions of the position." 29 C.F.R. § 1630.2 (n)(1). Whether an individual is a qualified individual shall be made "as of the time of the employment decision." Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir. 1998). Winfrey bears the burden of demonstrating that he is a "qualified individual." Bultemeyer v. Fort Wayne Community Schools 100 S.3d 1281, 1284 (7th Cir. 1996).
The determination of whether a person is a qualified individual" is a two step process. First, Winfrey must satisfy "the requisite skill, experience, education and other job-related requirements of the employment position [he] hold or desires." 29 C.F.R. § 1630.2 (m);Bultemeyer, 100 F.3d at 1284. Second, Winfrey must show that he can perform the essential functions of the laborer, ward clerk, and dispatcher positions with or without reasonable accommodation. Id. The City does not seriously dispute that Winfrey satisfies the prerequisites of the laborer, ward clerk, and dispatcher positions. Rather, the City maintains that Winfrey was not a "qualified individual" because he could not perform the essential functions of these positions. The Court will consider each position in turn.
a. Laborer
The City claims that Winfrey cannot perform the essential functions of a laborer because he has admitted that he cannot safely work on a garbage truck and cannot work at heights. Winfrey concedes that he cannot work on a garbage truck or at heights but maintains that these duties are not essential functions of the laborer's job. The Court considers the following nonexhaustive factors detailed in the federal regulations when determining whether a particular job function is essential: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of past incumbents in the job; and/or (7) the current work experience of incumbents in similar jobs. Lenker v. Methodist Hospital, 210 F.3d 792, 796 (7th Cir. 2000); 29 C.F.R. § 1630.2 (n)(3).
Winfrey points out that for five years after notifying the City that he was blind in 1986, he worked as a laborer without an accommodation. This fact does not assist Winfrey because the record fails to indicate whether Winfrey performed the duties of working on a garbage truck or at heights during those five years.
Applying these factors to this case, the Court cannot find given the current state of the record that the abilities to work on a garbage truck and at heights are essential functions of all laborer jobs. The City considers the abilities to work on a garbage truck and at heights to be essential functions of the laborer position. The ADA requires "consideration . . . be given to the employer's judgment as to what functions of a job are essential. . . ." 42 U.S.C. § 12111 (8). Moreover, "if an employer has prepared a written job description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." Id. The City's written job description indicates that a laborer's duties may include working on garbage trucks and work at heights up to twenty-five feet above street level. Defendant's Ex. B.
Winfrey claims to have received a different job description for the laborer's position and cites to Plaintiff's Exhibit QQ. Plaintiffs Local Rule 12N(3)(a) Statement ¶ 2. No such exhibit exists in the record. Winfrey also disputes that the essential duties of the Laborer's position are contained in the City's written job description "because the fitness examination given to plaintiff that returned him to DSS and the job title of laborer clearly makes only essential requirement of laborer the ability to lift heavy weights." Id. Winfrey cites no evidence in the record supporting this assertion. Accordingly, it is disregarded for purposes of summary judgment.
In maintaining that the abilities to work on a garbage truck and at heights are not essential functions, Winfrey relies on the fact that Felisha Belcher and I.J. Gardner are laborers who worked as ward clerks between December 2, 1996 and at least February 8, 1999. Defendant's Local Rule 12N(3)(a) Statement ¶ 5. The record fails to specify any future date when they will be returned to full field duties. The City contends that while there may have been employees holding the title of laborer who have performed various office functions in the DSS, such an assignment is not a permanent assignment and these laborers must be prepared and physically able to be removed from the office at any time for return to full field duties. Defendant's Local Rule 12M Statement ¶ 17. The record does not indicate the amount of time laborers spend working on garbage trucks or at heights, the work experience of past incumbents in the job other than Belcher or Gardner, or the current work experience of incumbents in similar jobs. Belcher's and Gardner's experiences suggest that certain laborers spend no time performing the functions at issue. Given these facts, a reasonable jury could conclude that the abilities to work on a garbage truck and at heights are not essential functions for laborers who work as ward clerks. Overton v. Reilly, 977 F.2d 1190, 1195 (7th Cir. 1992) (holding genuine issue of material fact existed concerning whether contact with the public was an essential function of plaintiff s job where, among other things, plaintiff presented evidence that another member of the unit's technical staff did not have any contact with the public). This determination does not end the inquiry, however, because Winfrey must show that he can perform the essential functions of the ward clerk position. b. Ward Clerk
Neither party has addressed the consequences of not requiring the incumbent to perform these functions nor the terms of any collective bargaining agreement.
Winfrey has not shown that any laborers, other than Belcher and Gardner, have been excused from performing work on garbage trucks or at heights.
The City relies on Miller v. Illinois Department of Corrections, 107 F.3 d 483, 485 (7th Cir. 1997), to support its assertion that Winfrey's ability to perform some of the duties of laborer does not satisfy his burden of showing that he could perform the essential functions of the position. Miller does not assist the City. In Miller, the plaintiff conceded that she could perform only two of the numerous duties of correctional officer. The defendant established that correctional officers rotated through the various duty positions. The plaintiff argued that she should be excused from performing the duties that she could not perform. The Seventh Circuit indicated that "if an employer has a legitimate reason for specifying multiple duties for a particular job classification, duties the occupant of the position is expected to rotate through, a disabled employee will not be qualified for the position unless he can perform enough of these duties to enable a judgment that he can perform the essential duties." Id. at 485. The defendant demonstrated through evidentiary material submitted to the district court that it had "to be able to call upon its full staff of correctional officers for help in putting down a prison riot, and therefore each officer must have experience in the positions. that provide the necessary training and experience for responding effectively to a riot, as well as the capability for such response." Id. In contrast to the prison's showing in Miller, the City has not provided any evidence establishing a valid reason for requiring all laborers to work on garbage trucks and at heights.
The City argues that Winfrey cannot perform the essential functions of the ward clerk position. It is undisputed that the full ward clerk duties include, but are not limited to the following: distribute tickets (administrative adjudicative and parking enforcement), sign-in the refuse collection coordinators, collect tickets, contact the wards for Sunday baskets, receive drivers for Sunday baskets, pick-up mail, handle some payroll functions, answer the radio and telephones, order supplies by preparing requisition forms, pick-up supplies, monitor use of supplies, facilitate management, complete order for repairs, occasionally hand out forms, handle attendance, and handle special details for overtime, i.e. Sunday baskets. Defendant's Local Rule 12N(3)(a) Statement ¶ 59. The City maintains that Winfrey cannot perform the duties of collecting tickets, contacting wards, picking up mail, processing tickets, performing follow-up for tickets, payroll functions, ordering supplies, picking up supplies or tools, facilities management, and keeping attendance records. Defendant's Local Rule 12M Statement ¶¶ 5-14.
The parties dispute which of these duties constitute essential requirements of the ward clerk job. The City claims that the official job description for the position lists the essential duties of the position. Defendant's Local Rule 12M Statement ¶ 3. Winfrey points out contends that Carranza's description of the actual ward clerk duties performed by John Riggins is not the same as the duties contained in the official job description. Carranza's testimony does not create a genuine issue concerning whether the City's official job description contains the essential duties of the ward clerk position. At his deposition, Carranza was asked to describe the ward clerk duties performed by John Riggins. Carranza dep., 60. Carranza first testified that the duties performed by Riggins are the same as those described in the "duty description of a ward clerk." Id. When asked to describe those duties, Carranza listed certain of the duties and then stated: "[T]here's a lot more duties that I can't recall right now. I'm working on getting a list of, you know, their specific duties. But in the description of ward clerk, it really covers most of what he does. I don't have it memorized. It's available. . . ." Id., p. 61. After reviewing the ward clerk duties Carranza could recall, Carranza was asked if there were any other duties Riggins perform as ward clerk.Id., pp. 64-65. Carranza indicated that was all he could recall at that time. Id., p. 65. Carrauza's inability at his deposition to recall all of the ward clerk duties performed by Riggins does not create a genuine issue concerning whether the City's official job description contains the essential functions of the position. DePaoli v. Abbott Laboratories, 140 F.3d 668, 674 (7th Cir. 1998) (stating "Although we look to see if the employer actually requires all employees in a particular position to perform the allegedly essential functions, we do not second-guess the employer's judgment in describing the essential requirements of the job.").
Winfrey also claims that the City's official job description is not controlling because it differs from the job description which it applied to him. Winfrey argument is without merit because it is undisputed that Carranza created a job description for Winfrey which included only four of the many duties of a ward clerk and no evidence in the record suggests that those four duties are the only essential functions of the ward clerk job. Winfrey further contends that in Plaintiff's Exhibit W the consultant for The Chicago Lighthouse stated that the essential duty of the ward clerk position is the ability to receive and process information. Winfrey inaccurately represents the content of Exhibit W. Exhibit W states only that "Winfrey primarily receives and processes information." Again, it is undisputed that Winfrey only performs four of the ward clerk duties. Thus, the fact that he primarily receives and processes information does not establish that this ability is the only essential function of the position.
Winfrey relies on the following evidence to show that he could perform the essential functions of a ward clerk:
• Carranza has not trained Winfrey to the perform the following duties: distribute tickets, sign-in the refuse collection coordinators, collect tickets, contact the wards for Sunday baskets, receive drivers for Sunday baskets, pick up mail, process parking tickets, payroll functions, order supplies, facilities management, and keep attendance records. Carranza's dep., pp. 70-98.
• Carranza testified that he made the decision not to train Winfrey to perform the above-mentioned ward clerk duties because other employees were already performed these duties and because Winfrey cannot see. Id., pp. 99-100.
• Carranza did not consult with anyone else when making the decision not to train Winfrey to perform the above duties. Id., p. 101.
• Carranza did not attempt to assign those duties or alter those duties in a manner in which Winfrey could perform them. Id., p. 102.
• Carranza admitted that he did not attempt, through the use of equipment or by contacting other persons, including the Mayor's Office of People with Disability, to accommodate Winfrey with respect to the above ward clerk job duties. Id., p. 103.
• The only exposure Carranza recalls having to the ADA is having read a brochure when searching for a job in 1991. Id., pp. 30-32.
None of this evidence is sufficient to meet Winfrey's burden. The fact that Carranza, who has limited exposure to the ADA, determined that Winfrey cannot perform the majority of the ward clerk duties and failed to train him does not satisfy Winfrey's burden of showing that he can perform the essential functions of the ward clerk position. Winfrey cannot avoid his burden of affirmatively establishing that he can perform the essential functions of the ward clerk position with or without an accommodation by establishing that the City failed to train him to perform these duties. The City failed to train Winfrey to perform these duties because it believed that his visual impairment prevented him from performing them. It is Winfrey's burden to show that the City's belief was inaccurate or to at least create a genuine issue of material fact regarding this question for trial. Winfrey bears the burden of establishing that assuming the proper training, he could perform the essential functions of the ward clerk position with or without an accommodation. Without more, a showing that he was not trained to perform these duties is not enough to survive summary judgment.
Winfrey also claims in his factual statement that "[w]ith or without an accommodation and training," he could perform the ward clerk duties. Plaintiffs Local Rule 12N(3)(a) Statement ¶¶ 14. None of the exhibits Winfrey relies on support his assertion. Exhibit V shows only that Winfrey could perform four of the functions of the ward clerk job with certain recommended equipment. Exhibit W discusses the consultant's recommendations for Winfrey to perform "his essential job functions" but does not specify which functions are being referred to. Winfrey has not presented any evidence indicating that The Chicago Lighthouse was referring to all of the essential functions of the ward clerk position. instead, the undisputed evidence indicates that Carranza only gave The Chicago Lighthouse a list of four essential job functions he believed Winfrey could perform. Similarly, Exhibit X states that The Chicago Lighthouse determined that a computer with proper adaptive technology would enable Winfrey to perform "his duties as Ward Clerk." Again, Winfrey has not demonstrated that "his duties as Ward Clerk" are the same as the full set of essential duties of a ward clerk. Winfrey further points out that Exhibit V states that Winfrey's use of computer would allow Winfrey "to do more tasks should more of the job duties be included in his current assignment." This ambiguous statement fails to satisfy Winfrey's burden of establishing that he can perform the essential functions of the ward clerk position with or without an accommodation.
Winfrey also relies on the fact that he previously performed the ward clerk job to demonstrate that he could perform the essential functions of ward clerk in March, 1994. However, Winfrey's deposition testimony reveals that he performed the ward clerk job for a few months in 1971, which was long before he began losing his eye sight in 1977 and he became legally blind in 1986. Plaintiffs Local Rule 12M Statement, ¶¶ 6, 7; Plaintiff's dep., pp. 249-250. Winfrey's performance of ward clerk duties for a few months years before he became legally blind does not create a genuine dispute of fact concerning whether he could perform the essential functions of the ward clerk position in March, 1994. Moreover, the fact that the City returned Winfrey to work in December in a ward clerk job also fails to satisfy Winfrey's burden because it is undisputed that since that time Winfrey has performed only four of the essential duties of the position.
Finally, Winfrey asserts in an affidavit that with computer technology, he can perform "most any clerical functions." Plaintiffs Exh. MM, ¶ 3. Winfrey's self assessment of his performance is insufficient to create a genuine issue as to whether he was qualified.Baxter v. Northwest Airlines, Inc., 1998 WL 603121, * 7 (N.D. Ill. 1998); Biggs v. Winpak Portion Packaging, Inc., 1997 WL 414098, * 4 (N.D. Ill. 1997) (stating "employee's own assessment of his job performance `does not constitute affirmative evidence that can defeat summary judgment.'"). Because Winfrey has presented no evidence showing that he could perform the essential functions of the ward clerk job with or without reasonable accommodation, the City is entitled to summary judgment. See Weigel v. Target Stores, 122 F.3d 461, 468 (7th Cir. 1997) (stating absent an affirmative showing of the plaintiffs ability to perform the essential functions of the position, "there will be no issue of material fact as to whether the plaintiff is a `qualified individual' and the employer will be entitled to judgment at a matter of law.").
c. Dispatcher
Winfrey does not appear to dispute the City's showing that the essential duties of a dispatcher are those listed in the City's official job description. Defendant's Ex. B(3). Winfrey has made a sufficient showing that he can perform the essential functions of dispatcher. Winfrey testified at his deposition that occasionally between 1987 and 1991, he performed dispatcher duties, including receiving and transmitting information over the radio. Plaintiffs Ex. LL, pp. 389-90.
However, the City is entitled to summary judgment on this claim because Winfrey has not identified an available dispatcher position for which he was qualified. Rehling v. The City of Chicago, 207 F.3d 1009, 1015 (7th Cir. 2000). It is undisputed that the position of equipment dispatcher is covered by the Teamsters' collective bargaining unit. Plaintiffs Local Rule 12N(3)(a) Statement ¶ 18. In March 1994, Winfrey was a laborer. The laborer and ward clerk positions fall within a different collective bargaining unit. The equipment dispatcher job opportunity bid announcement expressly states that only City employees represented by the Teamsters Union Local #726 could bid for the position. Plaintiffs Ex. L.
Thus, the City could not place Winfrey in the equipment dispatcher position without violating the seniority rights of employees in the Teamsters union. Winfrey could not have bid for a dispatcher position unless the Teamsters' union agreed to accept Winfrey's application by agreeing not to file a grievance regarding such transfer on behalf of its own members. Plaintiffs Local Rule 12N(3)(a) Statement ¶ 18. No evidence in the record indicates that the Teamsters' union was willing to accept an application by Winfrey for the equipment dispatcher position on March 7, 1994 or at any time thereafter. Rehling, 207 F.3d at 1015 (holding employer not required under the ADA to assign disabled police officer to a citations clerk job where the relevant collective bargaining agreement provided that the citations clerk jobs were to be filled by civilian employees only); Cochrum v. Old Ben Coal Company, 102 F.3d 908, 912-13 (7th Cir. 1996) (stating "[a]n employer is not required to violate the provisions of a collective bargaining agreement to reassign a disabled employee pursuant to the ADA."). Accordingly, the City's failure to reassign Winfrey to the equipment dispatcher position does not constitute a failure to reasonably accommodate his impairment under the ADA or the Rehabilitation Act.
3. The Interactive Process
Winfrey argues that the City failed to engage in an interactive process that would result in an accommodation of his disability. An employer is obligated to participate in good faith in an interactive process to determine the employee's limitations resulting from the disability as well as the nature of any reasonable accommodations to overcome these limitations. As explained by the Seventh Circuit in Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996), the "employee has the initial duty to inform the employer of a disability before ADA liability may be triggered for failure to provide accommodations. . . ." Once an employee requests an accommodation, both the employee and employer bear responsibility for determining what accommodation is necessary. Bultemeyer, 100 F.3d 1281, 1285 (7th Cir. 1996).
However, the requirement that employers participate in the interactive process does not absolve the employee's burden of demonstrating that he can perform the job's essential functions. "The interactive process the ADA foresees is not an end in itself; rather it is a means for determining what reasonable accommodations are available to allow a disabled individual to perform the essential job functions of the position sought." Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997). "Because the interactive process is not an end in itself, it is not sufficient for [Winfrey] to show that the City failed to engage in an interactive process or that it caused the interactive process to break down." Rehling, 207 F.3d at 1015-1016. "Rather, [Winfrey] must show that the result of the inadequate interactive process was the failure of the City to fulfill its role in `determining what specific action must be taken by an employer' in order to provide the qualified individual a reasonable accommodation." Id. at 1016 (emphasis added). The regulations implementing the ADA also expressly contemplate that the interactive process is triggered only if the employee is "qualified": "Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation." 29 C.F.R. Pt. 1630, App. § 1630.0 (emphasis added). Accordingly, the Court need not decide whether a break down in the interactive process occurred and if so, who bears the responsibility because Winfrey has not show that he would have been able to perform the essential functions of the laborer and ward clerk positions and that an available dispatcher position existed.
4. Time Period After Winfrey Returned to Work
Winfrey also claims that the City continued to violate the ADA and the Rehabilitation Act after he returned to work by being unprepared for Winfrey's return and allowing him to simply sit at a desk and listen to a tape recorder until sometime after the consultants visited Winfrey's work place, by not implementing the consultants' recommendations, including failing to provide him with a tape recorder, slate and stylus and a typewriter that could take recorded data and put the data into print form, by not training Winfrey to perform all of the ward clerk duties, and by denying him equal access to overtime because he was not trained. Winfrey's Motion for Summary Judgment, pp. 13-18. Winfrey's claims fail because he has not demonstrated that he is a "qualified" individual with a disability and thus entitled to protection under the ADA. Nowak, 142 at 1002 (stating "the ADA's proscription against employment discrimination protects only the class of persons who are `qualified individuals with a disability.'"); Sieberns, 125 F.3d at 1021 (stating "[n]o matter the type of discrimination alleged — either disparate treatment or failure to provide a reasonable accommodation-a plaintiff must establish first that he was `a qualified individual with a disability.'").
B. The City's Motion to Strike
The City moves to strike paragraphs 48, 57, 58, and 84 of Winfrey's Local Rule 12M(3)(a) Statement. The City's motion to strike is granted in part and denied in part. With respect to paragraph 48, the City argues that Winfrey's assertion that "an individualized assessment of the ward clerk's position was not done" when he returned to work is unsupported by any citation to the record. Winfrey indicates that he inadvertently failed to cite to Plaintiff's Ex. C, Interrogatory Nos. 2 and 3 as support for this assertion. The City's responses to Winfrey's Interrogatory Nos. 2 and 3 do not support Winfrey's factual assertion. Interrogatory No. 2 asked the City to describe all of its efforts to accommodate Winfrey, and Interrogatory No. 3 sought identification of every document containing information about the City's efforts to accommodate Winfrey. The City's Answers and Objections to Winfrey's Interrogatories are dated October 15, 1996. On November 26, 1996, the City offered Winfrey a position as ward clerk for the DSS, and Winfrey returned to work on December 2, 1996. Thus, on October 15, 1996, the City's answer to Interrogatories Nos. 2 and 3 could not have addressed whether an individualized assessment of the ward clerk position was done when he returned to work because he had not yet returned to work. The City's motion to strike Paragraph No. 48 is granted.
The City also moves to strike Paragraphs Nos. 57 and 58 as unsupported by the exhibits Winfrey relies on. Paragraph No. 57 states: "Plaintiff's supervisor did not give the consultant a copy of the complete job description of the ward clerk's position." Winfrey cites to Exhibit Z to support this assertion. Exhibit Z is merely a copy of the job description and does not support the assertion that Carranza failed to give the consultant the job description. Winfrey's response indicates that he inadvertently failed to cite to Carranza's deposition. Carranza testified that he did not give a copy of the ward clerk job description to the consultants. See Carranza dep., pp. 126, 127, 133, 134. The City's motion to strike Paragraph No. 57 is denied.
Paragraph No. 58 states: "Neither, did plaintiffs supervisor give the consultants a copy of the job description prepared specifically for plaintiff regarding the ward clerk's position." Winfrey cites to Exhibit AA which includes a ward clerk job description prepared for Winfrey. Exhibit AA does not support the proposition that Carranza failed to give the consultants a copy of the job description prepared specifically for Winfrey. Winfrey's response again indicates that he inadvertently failed to cite to Carranza's deposition testimony to support his assertion. Carranza's testimony reveals that he only gave the consultants a copy of Exhibit Y which includes the four ward clerk duties Carranza believed Winfrey could perform. Carranza's dep., p. 133. Accordingly, the City's motion to strike Paragraph No. 58 is denied.
Finally, the City moves to strike Paragraph No. 84. Paragraph No. 84 states: "The recommendations, if implemented, would allow plaintiff to perform the duties of a ward clerk that plaintiff has not been shown." The City argues that Winfrey's assertion is "purely speculative." The Court agrees. Neither Exhibits V, W, or X relied on by Winfrey indicate that if the recommendations were implemented, Winfrey could perform the duties of ward clerk which he has not been shown. The undisputed evidence indicates that Carranza never gave The Chicago Lighthouse consultants a copy of the official ward clerk job description. Thus, it is unreasonable to conclude that the consultants were indicating that implementation of their recommendations would allow Winfrey to perform any more than the four ward clerk duties Carranza made them aware of The City's motion to strike paragraph 84 is granted.
C. Winfrey's Motion to Amend the Complaint
Winfrey seeks to amend his complaint to add a claim for retaliation. Winfrey's proposed retaliation claim appears to allege that since returning to work in December, 1996, Winfrey was demoted, harassed, disciplined without cause, excluded from meetings and training, and denied overtime in retaliation for his having filed this lawsuit. The City opposes Winfrey's request to amend his complaint because his retaliation claim is beyond the scope of his 1994 charge.
Winfrey's motion indicates that he seeks to add a count for harassment and retaliation. However, his proposed Count III is labeled "Retaliation" and alleges, among other things that he has been harassed and subject to a hostile work environment. The Court construes Winfrey's motion as seeking to add a count of retaliation and alleging that he has been subject to harassment and a hostile work environment in retaliation for his filing this lawsuit.
Generally, a plaintiff may not include in his complaint claims that he failed to include in his underlying EEOC charge. McKenzie v. Illinois Dept of Transp., 92 F.3d 473, 481 (7th Cir. 1996). "This rule serves the dual purpose of affording the EEOC and the employer and opportunity to settle the dispute through conference, conciliation, and persuasion, and of giving the employer some warning of the conduct about which the employee is aggrieved." Id. at 481-482 (quoting Cheek v. Western Southern Life Ins., Co., 31 F.3d 497, 500 (7th Cir. 1996)). Although the complaint need not be identical to the underlying charge, the claim asserted in the complaint must be like or reasonably related to the allegations of the underlying charge and grow out of such allegations.Cheek, 31 F.3d at 500.
Here, Winfrey did not allege in his March, 1994 charge of discrimination that he was retaliated against because the acts of alleged retaliation did not occur until after he had filed his charge. Where the alleged retaliation arise after the charge of discrimination has been filed, "only a single filing [is] necessary to comply with the intent of Title VII; a double filing `would serve no purpose except to create additional procedural technicalities.'" McKenzie, 92 F.3d at 482; see also Malhotra v. Cotter Co., 885 F.2d 1305, 1312 (7th Cir. 1989) (stating "we join the other circuits that have spoken to the question in adopting the rule that a separate administrative charge is not prerequisite to a suit complaining about retaliation for filing the first charge."). Since Winfrey's allegations of retaliation postdate the charge, he is not required to file a new charge of discrimination before bringing allegations of retaliatory conduct in federal court.
Although Winfrey need not have filed a new charge alleging retaliation, the Court denies his request to raise issues of retaliation for the first time this late in the litigation. Once a party's leave to amend as of right expires, a party may amend a pleading only by leave of court or by written consent of the adverse party. Fed.R.Civ.P. 15 (a). Rule 15(a) states that "leave shall be freely given when justice so requires." Leave to amend is "inappropriate where there is undue delay, bad faith, dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment." Feldman v. American Mem. Life Ins. Co., 196 F.3d 783, 793 (7th Cir. 1999) (quoting Perrian v. O'Grady, 958 F.2d 192, 194 (7th Cir. 1992)).
Winfrey's reply indicates that he misnamed his motion and should have brought it as a motion to supplement the pleadings as a result of events subsequent to the filing of the complaint pursuant to Rule 15 (d). As Winfrey recognizes, the standards governing amendments and supplementation are the same. Glatt v. Chicago Park District, 87 F.3d 190, 194 (7th Cir. 1996).
Winfrey's proposed retaliation claim could and should have been presented much earlier in the litigation. Winfrey's original complaint was filed on February 29, 1996. Winfrey moved for leave to add a retaliation claim on December 21, 1999. This motion came over ten months after cross-motions for summary judgment were fully briefed and long after the alleged retaliation began.
The only explanation Winfrey offered for not proposing this supplementation sooner was that he did not return to work until December 2, 1996 and the last incident of retaliatory conduct occurred on December 6, 1999. Winfrey's explanation is not compelling. Winfrey claims that he was excluded from office meetings and activities after he returned to work on December 2, 1996. Winfrey also alleges that since Carranza's deposition in this matter, which occurred on July 8, 1997, "Carranza began finding fault with plaintiffs performance." Plaintiffs Reply, p. 3; Plaintiff's Ex. JJ. These facts could have been pled at any time after Winfrey returned to work and after Carranza's deposition, and no valid reason has been offered for why they were not raised sooner. Moreover, on May 6, 1999, Winfrey filed a charge of discrimination with the EEOC specifically alleging retaliation. Thus, as of May, 1999, Winfrey believed the City was retaliating against him, but he did not seek to add a claim of retaliation in this case until over eight months later. Similarly, the alleged retaliatory suspension occurred on September 24, 1999, almost four months before Winfrey should leave to bring a retaliation claim.
If the new claim were permitted, the City would be prejudiced because its success in prevailing on summary judgment would not end the lawsuit and it would have to engage in litigation and further discovery on new issues over four years after this action was filed. Glatt, 87 F.3d at 194 (upholding denial of leave to amend to add new claim of retaliation where leave to amend was filed 16 months after the original complaint and was based on a document that the movant had discovered more than a year earlier); Sanders v. Venture Stores, Inc., 56 F.3d 771 (7th Cir. 1995) (holding that leave to amend would cause undue delay and prejudice to the parties and the court where plaintiffs did not seek leave to amend their complaint until after discovery was complete and defendant moved for summary judgment and plaintiffs offered no explanation for the delay).
III. CONCLUSION
For the reasons explained above, Plaintiff's Motion for Partial Summary Judgment is DENIED, Defendant's Motion for Summary Judgment is GRANTED, Defendant's Motion to Strike is GRANTED IN PART and DENIED IN PART, Plaintiff's Motion to Amend the Complaint is DENIED. The Clerk is directed to enter a Rule 58 judgment in favor of Defendant and against Plaintiff The Clerk is further directed to terminate this case.