Petition for Writ of Certiorari — Tockes v. Air-Land Transport Service, Inc.

oo & te

03 817 DEC 3-2003

No.

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

¢

ROBERT TOCKES,

Petitioner,

VS.

AIR-LAND TRANSPORT SERVICES, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

@

CHRISTOPHER HENSON

MUSTAIN LINDSTROM & HENSON

1865 North Henderson Street

Suite 11B

Galesburg, IL 61401

(309) 344-5252

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. In an ADA action, what additional evidence must

be presented where there is direct evidence that an em-

ployer terminated an employee because it viewed the

employee as “crippled”, “handicapped” and “disabled”?

29. What substantive evidence must an employee

present to create a reasonable inference to be considered

“regarded as disabled” by their employer. in an ADA action

(42 U.S.C. §12102(c))?

ii

PARTIES TO THE PROCEEDING

Robert Tockes and Air-Land Transport Services, Inc.

ili

‘TABLE OF CONTENTS

Page

cn i cucnucsscenddicetbsesuieonsanerasones i -

PEGI OO GO PLOCROGIOR. 0.00 0ccccsscescicvicscccsocescreseosevess ii

Ne ics i dass acdbosndheapssiiainbbewensahens ili

Be Oe TINO icc resencsnecancansssivecsesosessacsasess ; eieneus iv

tall cc dachsduatiseceeneucehisdvednasiencheouboes iv

rh otc ciaeidsiebeNanneylouncusnaniungred® 1

ECRTOTMORE OF SUTISGICUON <.0....00..rccsssescsessccssovecesosssees 1

Statutory Provision ................-- i nicienaeaidinistaninniailincabihaen 1

Statement of the Case.............. ‘islaialblanitnahdimleabaaianioniian 1 ~

ial doe co ccacacrevessnearousasiensinesdssniinvasbives 3

iv

TABLE OF AUTHORITIES

Page

CASES CITED: _

EEOC v. Excel, Inc. f/k/a Excel Logistics, Inc., 208

See. TONG GE ae, BO eee ccvesccncssnessqrencnscissnseres 4

Hoffman v. Caterpillar, 256 F.3d 568 (7th Cir. 2001)......4, 7

Laws v. Pact, Inc., 2000 US Dist. LEXIS 8473 (ND

Ss SE vic dwceisniinscsubiddiiendoaiinnaaneeéshuanaiiabiten du niatianisiabinesgiaisiiid 10

Murphy v. UPS, 627 U.S. 516 (1G99).......00cseseceossessecsssasevans 5

Mustafa v. Clark County School, 157 F.3d 1169 (9th

IMs TURNED scitesansiinnsasrnnniathinintaeniarsinenentaciien iiipicnnaiiamaeveninins 6

Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133 (2000)............sreserercrersesesereseserererssecssssesscsessereees 8

Siefken v. Village of Arlington Heights, 65 F.3d 664

CE I TINUED hens ctiicreainicnecstedeaedsstedinicentanesmmitatintiaceiiatin 7

STATUTES CITED:

Be is TI secnencpesilceaihanedinsvsanssntusnniahschaontinincibuienimiaahanth 3

Be ary Se ipasirndkcs isscanenikicsnatnneeniannan 3

Americans with Disabilities Act, 42 U.S.C. §12101 et seg. ......... 1

A RE hs I castichsinctniness toni onkenidenbinnsinatnnennciniaation 1,3

Oe er ls eo eniiciciinitosensnessdernpessicunseumnineniniennis 10

MISCELLANEOUS CITED:

Websters New Collegiate Dictionary, 1987 ..................e 7

TABLE OF AUTHORITIES — Continued

Page

APPENDIX

United States Court of Appeals for the Seventh

CEE CIE wccitcrinictscsccinonceisioinntaiionnien App. 1

United States District Court for the Central Dis-

Crh: OE TNE TOE ecissicciscscssovrtsotninesmmeuiaaccnnns App. 5

1

PETITION FOR WRIT OF CERTIORARI

Petitioner, Robert Tockes, respectfully requests that a

writ of certiorari be issued to review the Judgment of the

United States Court of Appeals for the Seventh Circuit in

this case.

ie

Vv

OPINIONS BELOW

The Seventh Circuit Court of Appeals selected its

opinion for publication in the Federal Reporter. The

decision is reported at 343 F.3d 895. The District Court did

not publish an opinion in this case. Its order is reprinted

in the Appendix (5-26).

Be

v

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Seventh Circuit was entered September 6, 2003.

Jurisdiction is based upon a federal question. Petitioner

filed suit against Respondent, alleging violations of the

Americans with Disabilities Act, 42 U.S.C. §12101 et seq.

¢

STATUTORY PROVISION

42 U.S.C. §12102(2).

4

STATEMENT OF THE CASE

There are two fundamental questions in this case.

First, what evidence is necessary for an individual to be

2

“regarded as” disabled when there is direct evidence of

disability discrimination? Second, what substantive

evidence is needed to create a reasonable inference that an

employer regarded an employee as disabled?

In January 1988, Petitioner suffered a crushing injury

to his right hand while in the military. (App. 1). As a result

he was awarded a 20% disability pension from the Army.

(Id.) In January-2001, Petitioner applied for a job with

Respondent as a truck driver (App. 2) and indicated on the

application and income certification papers he was dis-

abled. He was subsequently hired by Respondent. (App. 6).

During the course of his brief employment with Air-Land,

Tockes informed his employer he was “disabled,” and had

several conversations in which he discussed the injury to

his hand and subsequent disability. (Id.)

In January 2001, Petitioner was injured after alleg-

edly using one hand on a job while working for Respon-

dent. (App. 7-9). When he returned to work on February 2,

2001 he was told he was being terminated, and that the

termination was “partially” Respondent’s fault for hiring a

disabled person. The individual who terminated Petitioner

stated he was “handicapped”, “crippled” and “disabled.”

(App. 9). :

Respondent’s alleged basis for termination was a

safety violation. However, Petitioner testified nothing was

said regarding a safety violation when he was terminated

(App. 2). Furthermore, a non-disabled employee committed

multiple safety violations before being terminated. ;

The District Court granted Respondent’s Motion for

Summary Judgment on March 10, 2003, holding Respon-

dent may have viewed Petitioner as physically impaired,

but the evidence in the record was insufficient to show it

iccinieeeeeneiieeacamiatiieiaiiaaaiiiiiiiiiaial

3

regarded him as being substantially limited in a major life

activity. Jurisdiction was proper via 28 U.S.C. §1331.

The Seventh Circuit Court of Appeals, with jurisdic-

tion vested by 28 U.S.C. §1291, upheld the District Court’s

decision on September 6, 2003, with the Clerk entering

judgment the same day.

The Court of Appeals held that there were several

interpretations of the term “crippled”. The Court held that"

there was insufficient evidence to conclude that Respon-

dent believed Petitioner had an impairment serious

enough to warrant being “disabled” per the Americans

with Disabilities Act. —

The Court of Appeals also held that allowing the suit

to go forward would discourage employers from hiring an

individual with a partial disability. fe

This decision is inconsistent with the plain language

of the statute as well as the relevant case law.

¢

ARGUMENT

A. The Court of Appeals Decision fails to follow the

Americans with Disabilities Act and the previ-

ous holding of the Supreme Court and other

Courts of Appeals.

There are three ways for an individual to prove he or

she is “disabled” under the ADA. (42 U.S.C. §12102(2)).

One of the methods is to prove the employer regarded an

employee as disabled. To determine whether an employer

“regarded” an employee as disabled, it is often necessary to

infer the actual belief of the employer. Unfortunately, the

ee eee

ee er emer m

4

Court of Appeals did not allow the jury to reasonably infer

Respondent’s intent, and in doing so may have created a

precedent that contradicts the plain meaning of the

statute.

Respondent referred to Petitioner as “crippled,” “dis-

abled,” and “handicapped” when it terminated him. The

term “crippled” has been defined as the loss of use of a

limb.’ Hence, applying the objective definition of the term

it used, it should be assumed that Respondent regarded

Petitioner as disabled.

As the Eighth Circuit recently held, the provision in

the statute addressing perceived disabilities “is intended

to combat the effects of archaic attitudes, erroneous

perceptions, and myths that work to the disadvantage of

persons with or regarding as having disabilities.” EEOC uv.

Excel, Inc. f/k/a Excel Logistics, Inc., 208 F. Supp. 2d

1013, 1042 (8th Cir. 2002). Labeling an employee “crip-

pled” is an extreme example of this archaic attitude, and is

exactly the type of bigotry the ADA was designed to

eliminate.

The Court avoided this result by holding there was

insufficient evidence in the record that would lead Re-

spondent to believe Petitioner was disabled as defined by

* In Hoffman v. Caterpillar, 256 F.3d 568, 573 (7th Cir. 2001) the

Court found that a person with one functioning arm is disabled. There

would be numerous major life activities implicated with lack of use of a

hand, such as pushing, pulling, grasping, lifting, each of which would

substantially limit an individual in a class of jobs. Furthermore, it is

the perception of the employer, not the actual disability, at issue. Hence,

if it can be inferred that the employer regarded the employee as

disabled, summary judgment is improper.

5

the ADA. In doing so, the Court ignored the fact that

Petitioner told Respondent prior to his firing:

1) he was a “disabled veteran”;

2) he marked on his application he was “dis-

abled”;

3) he filled out an income certification paper

indicating he was disabled; and

4) he had several conversations with supervi-

sors/management of Airland in which he told

them he was disabled. (App. 5-10).

In addition, Petitioner was fired after allegedly using

one hand on a two handed job. (/d.)

A person is regarded as disabled within the meaning

of the ADA if an employer mistakenly believes an impair-

ment substantially limits one or more major life activities.

Murphy v. UPS, 527 U.S. 516, 521-22 (1999).

Here, because Respondent regarded Petitioner as not

having use of a limb, there are a broad class of jobs that it

viewed Petitioner could not perform. Any job that entailed

pushing, pulling, grasping with two hands, lifting and

tying would be substantially limiting to an individual with

the use of one arm. More specifically, it would prohibit an

employee from working a class of jobs.

In Murphy v. UPS, the Supreme Court held that the

termination of an employee was lawful because the em-

ployer did not have an “unsubstantiated” fear of the

employee having a stroke or heart attack. (Id. at 520-21).

The import is that if the respondent did harbor this

unsubstantiated belief, it would violate the ADA. Jd. Here,

6

the Respondent had an unsubstantiated belief Petitioner

was “crippled”.

The importance of this case is to clarify and identify

what evidence is necessary to create an inference that an

employer regarded an employee as disabled. It is also

important because there exists direct evidence of discrimi-

nation (i.e., intent need not be inferred), which begs the

question of what other evidence is necessary in a direct

evidence case. See Mustafa v. Clark County School, 157

F.3d 1169, 1175-76 (9th Cir. 1998) (noting McDonnel

Douglas test does not apply if the employee’s disability is

the basis for termination).

Respondent’s statements were based upon negative

stereotypes of people with perceived disabilities. Labeling

an individual crippled and articulating it as a basis for

termination is akin to using a religious or racial slur while

terminating an employee; it is demeaning and constitutes

direct evidence of illegal discrimination.

On another level, the Court can clearly set forth the

types of inferences required to prove a “regarded as dis-

abled” ADA case, and articulate what factual foundation is

necessary to create a reasonable inference that an em-

ployer regarded an employee as disabled.

B. The standard used in Title VII should be used in

Americans with Disability Act cases.

Undoubtedly, if Respondent had used a racial, reli-

gious, sexist or ageist slur as a basis for Petitioner’s

termination, summary judgment would be improper. The

Petitioner prays that the same standard be applied in ADA

cases. Both the ADA and Title VII of the Civil Rights Act

7

were created to eliminate certain discrimination in the

workplace. The instant decision creates a non-existent

distinction between the two statutes by creating a higher

burden of proof.’ If the ADA was designed to eliminate

negative stereotypes in the workplace, it is unlikely one

would find a more egregious example of such a stereotype

than the instant case. Further, Respondent actually made

the illegal consideration a basis for the decision to termi-

nate Tockes.

If an employer bases a decision on unfounded stereo-

types, and because the Americans with Disabilities Act

discourages employment decisions based upon stereotypes

and generalizations associated with the individual's

disability rather than the individual characterization, the

employer has violated the ADA. Hoffman v. Caterpillar,

Inc., 256 F.3d 568, 573 (7th Cir. 2001). See also Siefken v.

Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995).

The instant decision ignores one of the basic tenents of the

ADA by allowing Respondent to terminate an employee

based upon an “unfounded stereotype.”

Respondent described Petitioner as “crippled.” The

definition of crippled has been defined as “to deprive the

use of a limb.” (Websters New Collegiate Dictionary, 1987,

p. 270). Accepting the objective definition of the term

? Some scholars argue there has been a “backlash” by the Courts

against employees in ADA actions. See Judicial Backlash, the ADA, and

the Civil Rights Model, 21 Berkeley Journal Employment & Labor Law

19 (2000). (Noting that the ADA model has drifted apart from the Civil

Rights Model that the ADA was based upon; noting the legislative

findings of the ADA “draw on the concepts and rhetoric” of the Civil

Rights Act; and noting the ADA draws upon the remedial and adminis-

trative scheme of the Civil Rights Act of 1964) (Id. at 23, 32).

8

crippled, it is reasonable to infer that Respondent believed

Petitioner did not have the use of his limb. The plain

meanings of the word Respondent used to describe Peti-

tioner would indicate he was disabled per the ADA. The

description is direct evidence of discrimination.

The Court of Appeals also made a fundamental error

when it held that the term crippled had “several” defini-

tions. (App. 3). This may be true generally, but is not true

under Rule 56. Following Rule 56, all facts and inferences

must be taken in the light most favorable to the non-

moving party. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 135 (2000). Hence, the objective defini-

tion of the word crippled should have been applied by the

Court to determine if Respondent “regarded” Petitioner as

disabled per the ADA. Applying this definition, it follows

that Respondent regarded Petitioner as disabled.

C. The proceeding involves a question of excep-

tional importance in that the result, if undis-

turbed, will allow employers to terminate

employees based upon a perceived disability,

and to harbor discriminatory stereotypes and

articulate these biases as a basis for termina-

tion, without violating the ADA.

If Tockes v. Air-Land Transportation is upheld, it will

create a precedent where an employer may terminate an

employee because it regarded the individual as “crippled”

“handicapped” and “disabled”, simply by denying it had

enough “facts” to lead it to conclude that the employee was

substantially limited in a major life activity. On the

broader level, it would allow an employer to harbor dis-

criminating attitudes towards individuals it regards as

“disabled” or “crippled” because the emplover would be

9 i

protected by a hypersensitive inquiry by the Court as to

specific facts that would lead it to this conclusion, even if

the conclusion was the basis for termination. It is Peti-

tioner’s argument that the ADA -— like Title VII — was

enacted to combat discrimination in the workplace. There

exists an abundance of evidence that could allow a jury to

infer Respondent regarded Petitioner as disabled per the

ADA, but this decision takes that opportunity away from

the trier of fact. Guidance is needed by the Court as to

what evidence (if any, if the Court concludes there is direct

evidence of discrimination) is necessary to defeat a similar

motion for summary judgment. As it stands, Tockes effec-

tively precludes any “regarded as disabled” claim to go

forward without overwhelming evidence showing the

employer believed the employee was substantially limited

in a major life activity. It also allows an employer to tell an

employee he or she is being terminated because the

employee is “crippled, handicapped and disabled”. Ulti-

mately, employers will be able to harbor and articulate the

stereotypes with virtual impunity. This is particularly

evident when one compares this case to a similar

hypothetical Title VII case,’ in which case liability would

be clear because the statements would constitute direct

evidence of illegal discrimination.

* A hypothetical, similar Title VII claim would be “your termina-

tion is partly our fault because we hired a woman in the first place.”

The instant case would be even more severe because a derogatory term

was used as a basis for termination.

” 10

D. Overturning Tockes will not discourage employ-

ers from hiring qualified individuals with dis-

abilities.

The Seventh Circuit Court of Appeals expressed

concern that allowing Petitioner to go forward would

discourage employers from hiring individuals with im-

pairments (App. 3-4). This is untrue. Tockes is a wrongful

termination case, not a failure to hire lawsuit. The issue is

not what Respondent believed when it hired Petitioner,

but its belief at the time it terminated him. (See Laws v.

Pact, Inc., 2000 US Dist. LEXIS 8473, 8479-8484 (ND Ill.

2000) holding that the relevant inquiry is what the em-

ployer knew at the time of termination).

Respondent learned the specifics of Petitioner’s

disability after he was hired. The final straw was when

Petitioner allegedly‘ used one hand to perform a specific

job duty. As it stands, Tockes allows an employer who

learns of a disability after hiring to legally terminate the

individual. As to the Court of Appeals’ concern that a

different result would discourage employers from hiring

individuals with physical limitations, if an employer hires

such a person, and it turns out that the employee cannot

perform the essential functions of the job, the employer is

protected by the statute; an individual who cannot per-

form the essential functions of the job is not a qualified

individual with a disability (42 U.S.C. §12112(a)).

¢

“ The facts of the incident are disputed by the parties (App. 1-4).

11

CONCLUSION

This case presents questions of exceptional impor-

tance. First, what evidence is necessary when an employer

articulates a disability as a basis for termination? Second,

what underlying factual evidence is needed to prove an

empleyer regarded an employee as disabled?

Respectfully submitted,

CHRISTOPHER HENSON

MUSTAIN LINDSTROM & HENSON

1865 North Henderson Street

Suite 11B

Galesburg, IL 61401

(309) 344-5252

Attorney for Petitioner

¢

In The

Supreme Court of the Anited States

4

ROBERT TOCKES,

Petitioner,

vs.

AIR-LAND TRANSPORT SERVICES, INC.,

Respondent.

4

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

¢

APPENDIX

4

App. 1

In the

United States Court of Appeals

For the Seventh Circuit

No. 03-1794

ROBERT TOCKES,

Plaintiff-Appellant,

Vv.

AIR-LAND TRANSPORT SERVICES, INC.

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 01-1405 - Joe Billy McDade, Chief Judge.

ARGUED AUGUST 6, 2003 — DECIDED SEPTEMBER 9, 2003

Before BAUER, POSNER, and KANNE, Circuit Judges.

PosNER, Circuit Judge. Robert Tockes’ suit for disabil-

ity discrimination by his former employer was dismissed

on summary judgment. In 1988 Tockes, who was then in

the Army, had injured his right hand. The nature of the

injury is unclear. The only description comes from Tockes,

who describes it as “a crushing injury” when his hand was

caught between two vehicles, resulting in “permanent

restrictions” on the use of his hand. He does not say what

those restrictions are, but the injury was serious enough to

induce the Army to award him a 20 percent disability

pension. The injury clearly was not disabling within the

App. 2 |

meaning of the Americans with Disabilities Act, however,

as it did not prevent him from working at jobs that require

two hands, such as driving a truck that has not been

adapted for a disabled person. And indeed he was hired by

the defendant as a flatbed-truck driver in 2001 after

informing the defendant of his injury and being put

through a full road test and physical examination. One

month later he was fired, after the defendant discovered

that he had used only one hand in fastening a load to the

bed of the truck, in violation of the company’s safety rules;

it is extremely dangerous to fasten a load on a flatbed

truck insecurely. Oddly, there is no indication whether it

was Tockes’ “good,” his left, hand that he was using to

fasten the load.

He contends, and for purposes of the appeal we accept,

that when he was fired the defendant told him the follow-

ing three things: he was being fired because of his disabil-

ity, he was crippled, and the company was at fault for

having hired a handicapped person. He argues that these

statements show that the company violated the provision

of the ADA that creates a remedy for a worker who suffers

an adverse personnel action because, though he is not

disabled within the meaning of the Act, his employer

thinks he is. 42 U.S.C. § 12102(2)(C); Sutton v. United Air

Lines, Inc., 527 U.S. 471, 489-90 (1999); Dyke v. O’Neal

Steel, Inc., 327 F.3d 628, 632-33 (7th Cir. 2003). The

provision penalizes false beliefs about disability in an

effort to dispel them, on the theory that such beliefs work

to the detriment of the (truly) disabled. Sutton v. United

Air Lines, Inc., supra, 527 U.S. at 489-90; Hoffman uv.

Caterpillar, Inc., 256 F.3d 568, 573 (7th Cir. 2001). What |

defeats Tockes’ suit is that there is no evidence that his |

employer harbored the erroneous belief that he was

ee

App. 3

disabled within the meaning of the Act. (Obviously it knew

he had a disability.) For one thing, had it thought that, it

would have been unlikely to hire him to drive a flatbed

truck, at least without altering the controls so that he

would not have to operate the manual gearshift with his

damaged right hand. A “false belief” case is more plausible

when a worker who was fine when he was hired experi-

ences some illness or injury that his employer mistakenly

considers disabling.

It is true that if Tockes is believed, the defendant

called him “crippled” and “disabled” and “handicapped,” ©

but all are words with a range of meanings, and do not

without more connote a belief that the individual is under

the protection of the ADA. The Army thought Tockes 20

percent disabled; obviously this does not mean that it

thought him so far disabled as to fall within the restrictive

meaning that the ADA assigns to the term. To be disabled

within that meaning, Tockes would have had to be unable

to drive without some accommodation to his disability.

Unless the employer mistakenly believes that an employee

has a disability grave enough to be so classified under the

ADA, the employer’s acting on the mistaken belief does

not violate the statute. Wright v. Illinois Dep't of Correc-

tions, 204 F.3d 727, 731-32 (7th Cir. 2000); Bailey v.

Georgia-Pacific Corp., 306 F.3d 1162, 1169-70 (1st Cir.

2002).

Allowing this suit to go forward would merely dis-

courage employers from giving a chance for employment to

workers who have some degree of disability. Loading and

driving a flatbed truck is strenuous work, and so a par-

tially disabled person would be bound to have an above-

average probability of failing at it. If the probability

materializes, as it may or may not have done in this case

App. 4

(remember that we don’t know which hand Tockes used in

fastening the load), and the company blames both itself

and the partial disability for the failure, there is no reason

to ascribe a discriminatory motive to the employer.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 5

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROBERT TOCKES, )

Plaintiff,

Vv. ) Case No. 01-1405

AIR-LAND TRANSPORT ?

SERVICES, INC.

Defendant. )

ORDER

(Filed Feb. 10, 2003)

This matter is before the Court on Defendant’s Motion

for Summary Judgment pursuant to Fed.R.Civ.P. 56 and

Local Rule 7.1(D) of Plaintiffs Complaint alleging viola-

tions of the Americans With Disabilities Act (“ADA”), 42

U.S.C. § 12101 et seg. Additionally, Defendant makes a

Motion to Strike Plaintiffs Response for failure to comply

with the requirements of Local Rule 7.1(D)(2)(a)-(d)

governing responses to summary judgment motions.\For

the following reasons, the Court denies Defendant’s

Motion to Strike, but grants Defendant’s Motion for

Summary Judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In January 1988, while serving in the military, the

Plaintiff, Robert Tockes, (“Tockes”), suffered an injury to

his right hand when it was crushed between two vehicles.

Upon discharge, Tockes received a 20% disability pension

from the United States Army as a result of this injury.

After his discharge, Tockes held several jobs, most notably

among these were as an EMT and as a driver for various

App. 6

businesses. From 1989, except for brief periods or while

furthering his education, Tockes admits to being continu-

ously and gainfully employed. Additionally, approximately

two weeks after his termination from Defendant, Air-Land

Transport Services, Inc., (“Air-Land”), and after a short

period working as a driver for another company, Tockes

was hired by Cox Transfer as a driver, a position he still

currently holds.

The origins of this lawsuit date to January 2, 2001,

when Tockes applied and was hired for a driving position

with air-Land. Tockes contends he was hired exclusively to

drive vans and would not be required to drive flatbed

trucks, while Air-Land states that all drivers were hired

with the expectation that they would be able to drive all

types of vehicles, which at the time included vans, flatbeds

and curtain [sic] trucks. At the time of his hiring Tockes

states that he informed Bruce Crawford, (“Crawford”), the

Operations Manager for Air-Land and the individual

responsible for Tockes’ hiring, of his physical impairment

both verbally and in writing by providing him with a copy

of a letter from the U.S. Department of Veterans Affairs

indicating he was the recipient of a 20% disability pension

as a result of his injury. Tockes also states he told Craw-

ford that Air-Land may be eligible for a tax rebate if

Tockes was hired because he was a disabled veteran.

Finally, Tockes alleges Air-Land was on notice of his

disability because he filled out an employee income certifi-

cation form indicating he was disabled.

Conversely, Crawford states he was unaware until

after Tockes’ termination that Tockes suffered an injury to

his right hand during his military service or even that he

had ever been in the military. Additionally, Tockes’ appli-

cation for employment fails to allude to any impairment or

App. 7

disability, and Air-Land never applied for a tax credit or

any other form of recognition as a result of hiring Tockes.

Further, Air-Land did not have any record of a letter from

the Department of Veterans’ affairs confirming Tockes’

disability pension until receipt of such a letter dated

September 17, 2002, approximately 18 months after

Tockes’ termination. Finally, the physical exam Air-Land

requires of all drivers to ensure compliance with the

Federal Motor Carrier Safety Administration — a division

of the Department of Transportation — indicated Tockes

had a full range of motion in his right hand and good

strength in his upper extremities.

In addition, and despite his contention that he was

only hired to drive vans, Tockes admits to being instructed

on how te properly secure loads on flatbed trucks, includ-

ing the proper way to use a ratchet and winch-bar to

secure a load as part of the orientation and safety program

applicable to all new drivers. This instruction included the

specific admonition not to depress the winch bar below the

waist, as improper use of the ratchet and winch-bar can

result in the ratchet or winch-bar coming loose from the

trailer lip, potentially injuring the driver. Tockes further

admits that Air-Land specifically stressed the importance

of maintaining a proper center of gravity when operating

the ratchet and/or winch-bar to reduce the likelihood of

accidents and/or injuries. Tockes also admits he was

instructed that when securing a load with 4-inch straps, a

bungee cord may be used to stabilize the ratchet, and that

when using this bungee cord it is improper and unsafe to

operate the winch-bar with only one hand. After being

specifically instructed in the proper techniques for secur-

ing a ratchet, Tockes demonstrated his knowledge of the

proper safety protocols by passing a written safety test as

App. 8

required by Air-Land. Tockes readily acknowledges that

he was aware that any failure to abide by these safety

regulations could result in disciplinary action including

the possibility of dismissal.

On January 31, 2000, during the probationary period

applying to all new hires, Tockes suffered an injury to his

back in the course of securing a load on a flatbed truck at

Keystone Steel & Wire, an Air-Land customer. Tockes

reported his injury to Air-Land dispatch, claiming that the

injury resulted from poor or faulty equipment. Tockes’

injury was treated by Dr. Matthew Setter who diagnosed

Tockes with an injury to his back, specifically a lumbosac-

ral sprain. Tockes neither contends this injury was dis-

abling nor that it would prevent him from being able to

perform his job.

Upon reporting back to Air-Land, two Air-Land

employees, Darren Merrell, (“Merrell”), Air-Land’s Safety

Director, and Michael Minton, (“Minton”),-asked Tockes to

demonstrate the activity he was engaged in when his

injury occurred. While the parties disagree whether

Tockes violated any safety rules by using one arm or

depressing the winch-bar below his waist at the time of his

injury, both parties agree either action would constitute a

violation of Air-Land safety procedures. However, despite

contrary allegations in his legal memoranda filed with this

Court, Tockes admits to using one arm at the time of his

accident, stating specifically in his deposition that “while

you are doing this, you can’t use both hands because the

ratchet will slide off, and you will go to the ground. So,

you’ve got to do the best you can until you get it tight, then

you can use both hands.” When Tockes demonstrated what

occurred at the time of his injzry to Merrell and Minton,

both men questioned the truthfulness and credibility of

App. 9

Tockes’ explanation that he was following proper safety

procedures and that faulty equipment was to blame for the

accident. _

Believing Tockes to have violated safety rules during

his probationary period and then attempting to conceal his

violation by lying and blaming the accident on faulty

equipment, Merrell recommended to Tom Daman, (“Da-

man”), the Vice President in charge of Operations for Air-

Land and Merrell’s supervisor, that Tockes be terminated

pursuant to company policy. While the parties dispute

whether Damon [sic] solely relied upon Merrell’s recom-

mendation, effectively serving as a rubber stamp, Damon

[sic] nevertheless gave Merrell authority to terminate

Tockes. Pursuant to this authority, Merrell terminated

Tockes on or about February 12, 2002, with Minton

serving as a witness.

Tockes has a different version of his termination,

continuing to argue not only that he followed proper safety

procedures and attributing his accident to faulty equip-

ment, but also insisting he was terminated — at least in

part — due [sic] his “ability in violation of the ADA. As

support, Tockes states that when Merrell informed him

that he was being discharged, Merrell explicitly stated

that part of the reason Tockes was being terminated was

that Air-Land should not have hired a handicapped person

in the first place. In what can only generously be described

as an inexact recollection, Tockes alleges that Merrell used

all three of the words “crippled,” “handicapped,” and

“disabled” in this conversation, although he can remember

neither the exact words nor context. For his part, Merrell

denies making these statements and Minton likewise

denies Merrell made any such statements. Further, at the

time of Tockes’ employment with Air-Land, both men deny

App. 10

any knowledge that Tockes suffered from any impairment

in his right hand limiting his ability to perform his job or

perform any other task central to his daily life.

AIR-LAND’S MOTION TO STRIKE

TOCKES’ RESPONSE TO AIR-LAND’S

MOTION FOR SUMMARY JUDGMENT

After Tockes filed his response to Air-Landc’s Motion

for Summary Judgment, Air-Land moved to strike Tockes’

response for failure to comply with the requirements of

Local Rule 7.1(D)(2) governing the form and substance of

such responses. As a preliminary matter, the Court notes

that Tockes’ response to Air-Land’s Motion to Strike

makes it clear that Tockes disadvantages his position by

referencing and laboring under an old version of the Local _

Rules. Whether as a direct result or not, Tockes’ response

minimally contains the substantive material envisioned by

Local Rule 7.1(D)(2), but strays significantly from the form

outlined by the Local Rule. Consequently, both the oppos-

ing part and this Court must spend additional time and

effort sifting through Tockes’ filings to locate pertinent

information.

Citing Waldridge v American Hoechist Corp., 24 F.3d

918 (7th Cir. 1994), Air-Land urges this Court to find that

Tockes’ failure to adhere to the express requirements of

Local Rule 7.1(D)(2) warrants a mandatory striking of his

response, which would effectively admit Air-Land’s state-

ment of facts as uncontested, allowing Air-Land to prevail

on their motion. Specifically, Air-Land objects to Tockes’

perceived failure to present the substance of his response

to allegedly undisputed material facts and his failure to

summarize the applicable law relied upon in opposition to

summary judgment. While in Waldridge the Seventh

App. 11

Circuit upheld a district court’s decision to grant a sum-

mary judgment motion based upon-the non-moving party’s

failure to comply with a local rule governing such re-

sponses, this decision was primarily based not on the

improper form of the non-moving party’s response, but

rather upon a lack of substance as the non-moving party

failed to create a genuine issue of material fact through

noncompliance with the form outlined by the local rules.

Id. at 922. In contrast, while stretching the parameters of

the Local Rules, Tockes’ failure to comply with Local Rule

7.1(D)(2) is one more of form than substance.

Because this Court can refer to Tockes’ Response to

Defendant’s Statement of Undisputed Material Facts, the

Court does not have to entirely resort to combing deposi-

tions and affidavits — as would have been required by the

district court in Waldridge — in order to discern Tockes’

view of the contested facts. See Id. at 924. This informa-

tion forms the basis of what is required in response to a

Fed.R.Civ.P. 56 motion for summary judgment and the

information Local Rule 7.1(D)(2) attempts to elicit, albeit

in a form not properly followed by Tockes. While neither

condoning Tockes’ failure to conform his response to Local

Rule 7.1(D)(2) nor sanctioning any future deviations from

this Rule by any future party appearing before this Court,

if this Court invariably struck all pleadings that failed to

conform to the exact requirements of the Local Rules

regardless of substance, the wheels of justice would no

doubt grind to a screeching halt. Besides upholding a

district court’s authority to require strict compliance with

their local rules, the Seventh Circuit decision in Waldridge

also supports this Court’s decision not to strike Tockes’

response for failing to comply with Local Rule 7.1(D)(2)

acknowledging the considerable deference to be accorded a

~~

App. 12

district court in the interpretation of its own rules. Jd. at

923 n.4.

AIR-LAND’S MOTION FOR

SUMMARY JUDGMENT

When considering a motion for summary judgment

pursuant to Fed.R.Civ.P. 56, “the court must review all of

the evidence in the record, drawing all reasonable infer-

ences in favor of the nonmoving varty, but making no

credibility determinations or weighing any evidence. The

latter functions, along with the drawing of legitimate

inferences from the facts, are for the jury, not the court.”

Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133,

135 (2000) (citations omitted). Thus, summary judgment is

proper if the pleadings, depositions, answers to interroga-

tories, and admissions on file, together with any affidavits,

show that there is not a genuine issue of material fact and

that the moving party is entitled to judgment as a matter

of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Further, Fed.R.Civ.P. 56 requires granting summary

judgment when a non-moving party “fails to make a

showing sufficient to establish the existence of an element

essential to the party’s case, and on which that party will

bear the burden of proof at trial.” Jd. “In such a situation,

there can be no genuine issue as to any material fact, since

a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other

facts immaterial.” Id. at 323. Thus, “the district court’s

role in deciding the motion is not to sift through the

evidence, pondering the nuances and inconsistencies, and

decide whom to believe. The court has one task, and one

task only: to decide, based on the evidence of record,

App. 13

whether there is any dispute of material fact that requires

a trial.” Waldridge 24 F.3d at 920.

DISCUSSION

Title I of the ADA provides “no covered entity shall

discriminate against a qualified individual with a disabil-

ity because of the disability of such individual in regard to

job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a) (emphasis added). Title

I goes on to define “discriminate” as :

Participating in a contractual or other ar-

rangement or relationship that has the effect of

subjecting a covered entity’s qualified applicant

or employee with a disability to the discrimina-

tion prohibited by this subchapter (such relation-

ship includes a relationship with an employment

or referral agency, labor union, an organization

providing fringe benefits to an employee of the

covered entity, or an organization providing

training and apprenticeship programs).

42 U.S.C. § 12112(b)(2). “Disability” with respect to an

individual means a “physical or mental impairment that

substantially limits one or more of the major life activities

of such individual; a record of such an impairment; or

being regarded as having such an impairment.” 42 U.S.C.

§ 12102(2). “Accordingly, to fall within this definition one

must have an actual disability (subsection (A)), have a

record of a disability (subsection (B)), or be regarded as

having one (subsection (C)).” Sutton v. United Airlines,

Inc., 527 U.S. 471, 478 (1999) referring to 42 U.S.C.

§ 12111(8). This definition creates a two prong test for

App. 14

determining whether a person suffers from an ADA

recognized disability. First, the individual must have a

physical or mental impairment, and second, that impair-

ment must substantially limit one or more of the individu-

als’ major life activities.

In order to survive Air-Land’s motion for summary

judgment, Tockes must demonstrate that he is a qualified

person with a disability as defined by the ADA. Harring-

ton v. Rice Lake Weighing Sys., Inc., 122 F.3d 456, 459

(7th Cir. 1997). Because Tockes does not allege he pos-

sesses a mental impairment, he must demonstrate a

physical impairment. As defined by the EEOC, a physical

impairment includes “[aJny physiological disorder, or

condition, cosmetic disfigurement, or anatomical loss

affecting one or more of the following body systems:

neurological, musculoskeletal...” 29 C.F.R. § 1630.2(h)(1).

In demonstrating a physical impairment, Tockes relies

entirely upon the injury to his hand he sustained while

serving in the military.

While Tockes received and passed a physical examina-

tion that indicated he had a full range of motion and good

strength in his upper extremities as required by federal

regulations governing commercial motor vehicle operators,

Air-Land does not contest Tockes suffers from a physical

impairment.’ Because passing a physical exam to drive a

" The physical exam is required by the Federal Motor Carrier

Safety Administration and provides in part, “[a] person is physically

qualified to drive a commercial motor vehicle if that person . . . [hJas no

impairment of: (i) A hand or finger which interferes with prehension or

power grasping...” 49 C.F.R. § 391.41(b)(2). When examining a driver,

physicians are instructed to note any loss or impairment of hands or

fingers and to specifically note “any deformities, atrophy, paralysis,

(Continued on following page)

ee,

App. 15

commercial vehicle will clearly be more narrowly tailored

in its assessment of physical impairment than the broader

definition evidenced by the U.S. Military’s grant of a

disability pension to Tockes, this Court assumes Tockes

has met the threshold requirement of demonstrating a

physical impairment.

Simply establishing a physical impairment is not

enough to prove disability under the ADA, however.

Tockes must also demonstrate that he is limited in a major

life activity. “The term ‘substantially limits’ means, among

other things, ‘[uJnable to perform a major life activity that

the average person in the general population can perform’;

or (s]ignificantly restricted as to the condition, manner or

duration under which an individual can perform a particu-

lar major life activity as compared to the condition, man-

ner, or duration under which the average person in the

general population can perform that same major life

activity.’” Sutton, 527 U.S. at 480 citing 29 C.F.R.

§ 1630.2(j); see also, Furnish v. SVI Systems, Inc., 270 F.3d

445, 450 (7th Cir. 2001). “Finally, {mJajor {lJife activities

means functions such as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breath-

ing, learning, and working.” Sutton, 527 U.S. at 480 citing

partial paralysis, clubbing, edema, or hypotonia. If a hand or finger

deformity exists, determine whether prehension and power grasp are

sufficient to enable the driver to maintain steering wheel grip and to

control other vehicle equipment during routine and emergency driving

operations.” 49 C.F.R. § 391.43(f). The physician is instructed to note

any loss or impairment to an extremity “which may interfere with the

driver’s ability to operate a commercial motor vehicle safely . . . ” Id.

App. 16

29 C.F.R. § 1630.2(j).2 While this list is intended to be

illustrative, rather than exhaustive, see Sinkler v. Midwest

Property Management Limited Partnership, 209 F.3d 678,

684 (7th Cir. 2000), the Supreme Court has held that for

an individual’s impairment to be substantially limiting,

the impairment must prevent or severely restrict the

individual from doing activities that are of central impor-

tance to most people’s daily lives. Toyota Motor Mfg., Ky.,

Inc. v. Williams, 122 S.Ct. 681, 691 (2002); see also, Law-

son v. CSX Transp., Inc., 245 F.3d 916, 923 (7th Cir. 2001)

(a major life activity is something that is “integral to one’s

daily existence”). While whether or not an impairment is

substantially limiting must be viewed in the context of the

average person in the general population, whether or not a

person has a disability remains an individualized inquiry.

Sutton, 527 U.S. at 483.

Tockes’ list of limitations all fail to establish that he is

substantially limited in any major life activity. Several of

Tockes’ proffered limitations fall into the general category

* It is worth noting that the Supreme Court continues to pass on

the degree of deference to accord EEOC interpretations of the term

“disability,” noting that no agency has been given authority to issue

regulations implementing the generally applicable provisions of the

ADA. See, Sutton, 527 U.S. at 479; Toyota Motor, 122 S.Ct. at 689-90.

Of course, while not binding, EEOC guidelines “do constitute a body of

experience and informed judgment to which courts and litigants may

properly resort for guidance.” Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 65 (1986); see also, O’Neul v. City of New Albany, 293 F.3d 998,

1009 (7th Cir. 2002). However, \as in all Supreme Court decisions

acknowledging the unsettled question of the degree of deference to

accord EEOC guidance, neither party in the instant action challenges

the validity of the regulations, so this\question need not be addressed.

ys

J

ee

App. 17

of caring for himself. As alleged, these limitations consist

of difficulty tying his shoe, wearing a watch, or buttoning

the top button of his shirt. Nonetheless, Tockes demon-

strates a remarkable ability to overcome all of the limita-

tions he identifies in his ability to care for himself, while

lacking any difficulty in performing such tasks as shop-

ping, showering, cleaning himself, or driving.’ Insomuch

as these mitigating measures correct Tockes’ physical

impairments, he cannot be considered substantially

limited in the major life activity of caring for himself.

Sutton, 527 U.S. at 482-83, 488.

Tockes also alleges difficulty performing certain

manual tasks such as opening jars, taking notes/writing,

typing, working on his car, and baiting a fishhook. Again,

he has often mitigated the difficulty he has with these

tasks by using fishing lures instead of worms and using

various devices and tools, such as when he works on his

car. Tockes also admits to being able to write and type,

although slower and with greater effort, or, as in the case

of taking notes, aided by a tape recorder. Put simply,

Tockes fails to allege any manual task that he cannot

perform, with or without accommodation, of central

* Tockes never says he cannot tie his shoes, only that he has

difficulty, and, as a result, his shoes end up being “sloppily” tied and

not tight. Overcoming his problem of wearing a watch because of a

difficulty working the clasp is overcome by simply wearing the watch on

his right wrist. As for buttoning the top button of his shirt when he

occasionally wants to wear a tie, the Supreme Court has previously

held that needing occasional help in dressing oneself does not qualify as

being substantially limited in a major life activity. Toyota Motor, 122

S.Ct. at 694.

ee

aaa aaa aaa ene,

App. 18

importance to the average person’s life that amounts to a

substantial life activity.

Finally, Tockes states he is limited in his ability to

work by making general statements about his inability to

make a fist, his sensitivity to the cold, requiring special

tools to perform his job, and listing several jobs that he

cannot perform. Being “substantially limited” in the major

life activity of working requires that a person be “signifi-

cantly restricted in the ability to perform either a class of

jobs or a broad range of jobs in various classes as com-

pared to the average person having comparable training,

skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i).

Although the Supreme court has declined to rule on

whether working constitutes a major life activity, even

going so far as to question its applicability, the Seventh

Circuit has held that working constitutes a major life

activity. See, Krocka v. City of Chicago, 203 F.3d 507 (7th

Cir. 2000); Sutton, 527 U.S. at 492. For its part, the EEOC

recommends that working be viewed as a residual life

activity only in disability determinations under the ADA if

the individual is not substantially limited with respect to

any other major life activity. Sutton, 527 U.S. at 492 citing

29 C.F.R. § 1630.24). Addressing claims of limitation in

the major life activity of working, the Seventh Circuit has

held that “an inability to perform a particular job for a

particular employer” is not sufficient to establish a sub-

stantial limitation on the ability to work, instead, “the

impairment must substantially limit employment gener-

ally.” Byrne v. Board of Educ., Sch. of West Allis-West

Milwaukee, 979 F.2d 560, 565 (7th Cir.1992).

Tockes states he is unable to substantially perform

the following jobs and/or tasks: a firefighter, a police

esc eens teense anseesnsesemsesennsitenustneenemsnncnssnmmseemieeee,

SS as eee es

App. 19

officer, a surgeon, a carpenter, a mechanic, any outdoor

jobs in cold weather for more than 20 or 30 minutes, or

any job involving writing more than two paragraphs,

making a fist, or moving objects such as furniture. Despite

these arguments, the Court notes that at no time has

Tockes had difficulty obtaining work from 1989 up until

his present employment with Cox Transport. The fact that

Tockes is working has never even demonstrated difficulty

in getting a job is sufficient evidence to defeat his claim

that he is substantially limited in the major life activity of

working. Heimann v. Roadway Express, Inc., 228

F’.Supp.2d 886, 903 (N.D.Ill. 2002) citing Puoci v. City of

Chicago, 81 F.Supp.2d 893, 897 n.2 (N.D.II1. 2000); Sinkler

v. Midwest Prop. Mgmt. Ltd. Pshp., 209 F.3d 678, 685-86

(7th Cir.2000); Moore v. J.B. Hunt Transp., Inc., 221 F.3d

944, 953 (7th Cir.2000). There is no evidence in the record

or in Tockes’ own deposition testimony that he is signifi-

cantly restricted either in his ability to perform either a

class of jobs or a broad range of jobs when compared to the

average person having similar training, skills, and abili-

ties, making him unable to establish he is actually dis-

abled under the ADA.

Having found that Tockes does not possess an actual

disability, the Court now turns to the issue of whether he

possesses a record of such disability or was regarded as

having such a disability in order to afford him protection

under the ADA. The EEOC states that the intent of this

“record” definition of “disability” is to ensure that people

are not discriminated against because of a history of

disability or because they have been misclassified as

disabled. 29 C.F.R. § 1630.2(k). To qualify, any record

relied upon by the plaintiff “must ... contain a history of,

or a misclassification as having, a mental or physical

App. 20

impairment that ‘substantially limits one or more major

life activities.” Roth v. Lutheran Gen. Hosp., 57 F.3d 1446,

1457 (7th Cir.1995) quoting 29 C.F.R. § 1630.2(k).

While the EEOC suggests many records could fulfill

this requirement, a plaintiff fails to establish a claim for

discrimination based upon a record if the record does not

describe the substantial limitations of a major life activity.

See, 29 C.F.R. § 1630.2(k); Roth, 57 F.3d at 1457. The

records Tockes proffers as evidence of his disability consist

of a letter from the Department of Veterans Affairs classi-

fying him as 20% disabled as a result of his hand injury,

his application with Air-Land, and an employee income

certification letter indicating his disability.

A Pennsylvania district court addressed a highly

similar situation in Howell v. Sam’s Club #8160, 959

F.Supp. 260, 267-268 (E.D.Pa. 1997). The plaintiff in

Howell argued that the combination of his letter from the

Veterans’ Administration stating he had a twenty percent

disability, a tax document that he filled out while working

for Sam’s Club, the award Sam’s Club received for hiring a

disabled veteran, and his Disabled American Veteran

license plate were sufficient to create a genuine issue of

material fact as to whether Howell established a record of

impairment. Disagreeing, the Howell Court found that a

record indicating a disability under a statute, regulation,

or program other than the ADA does not translate into a

disability under the ADA without a showing of a substan-

tial limitation in a major life activity. In order to proceed

under the “record of impairment” prong of the ADA,

Tockes must show both that he suffered limitation in a

major life activity in the past and that Air-Land relied on

the record of that impairment when dismissing him. See,

29 C.F.R. § 1630.2(k); see also, Davidson v. Midelfort

App. 21

Clinic, Ltd., 133 F.3d 499, 510 n.7 & n.8 (7th Cir.1998). As

in Howell, because the records relied upon by Tockes

neither demonstrate a substantial impairment in a major

life activity nor demonstrate Air-Land relied on such

records, this Court cannot find Tockes has met his burden

of establishing a record of disability satisfying the re-

quirements of the ADA.‘

Finally, Tockes contends that even if he was not

substantially limited in a major life activity by virtue of

his physical impairment, and cannot demonstrate a record

indicating as much, he fulfills the ADA definition of

“disabled” by being “regarded as” disabled by Air-Land. An

individual may be “regarded as disabled” under this last

definition of “disability” if the plaintiff demonstrates: 1) A

covered entity mistakenly believes that a person has a

physical impairment that substantially limits one or more

major life activities, or 2) a covered entity mistakenly

believes that an actual, nonlimiting impairment substan-

tially limits one or more major life activities. 29 C.F.R.

§ 1630.2(1); Sutton, 527 U.S. at 489; Mack v. Great Dane

Trailers, 308 F.3d 776, 780 (7th Cir.2002). Under either

formulation, Tockes must show that Air-Land entertains

* In fact, without relying entirely upon his own deposition, Tockes

is unable to demonstrate Air-Land had any record of his physical

impairment beyond the possibility of an employee income certification :

form. Besides Air-Land’s physical examination demonstrating that he

did not suffer from any physical impairment as far as commercial

driving was concerned, the depositions of all Air-Land employees

demonstrate no employee was aware of any physical impairment

Tockes may have possessed that would either have substantially

limited a major life activity or Tockes’ ability to perform his job, nor had

any other record indicating any physical impairment.

App. 22

misperceptions that he is “substantially limited” in a

major life activity. Sutton, 527 U.S. at 489.

In support of his position, Tockes states that Air-Land

knew of his disability because he informed them both by

indicating his impairment on his application form and

providing them with a copy of a letter from the Depart-

ment of Veteran’s Affairs indicating his receipt of a 20%

disability pension. Tockes also indicated he mentioned his

impairment to various, yet anonymous, employees of Air-

Land as well as during his interview at the time of his

hiring. Primarily, however, Tockes maintains that the

statements of Darren Merrell referring to him as “crip-

pled,” “disabled,” and “handicapped” at the time of his

discharge evidence that Air-Land regarded Tockes as

possessing a physical impairment, and that this belief

formed the basis of his termination.

First, the court notes that there is no evidence in the

record that Tockes indicated his impairment on his Air-

Land application. Second, this Court has already estab-

lished that a 20% disability pension, an income certifica-

tion statement, and unspecified comments to nameless

employees of Air-Land are insufficient to establish disabil-

ity under the ADA unaccompanied by evidence that such

impairment substantially limits a major life activity or

Air-Land perceived such a limitation — evidence Tockes

fails to supply. As a result, Tockes’ argument that Air-

Land regarded him as possessing a physical impairment

that substantially limited him in a major life activity

hinges upon the statements attributed to Merrell.

Based upon Tockes own self-serving statements in the

record, it is possible a trier of fact could find that Merrell

considered Tockes physically impaired. However, weighing

App. 23

against Tockes’ statements and this finding is medical

evidence from Dr. Setter that Tockes had a full range of

motion and good strength in his right hand; the deposition

testimony of both Merrell and Minton; and an absence of

any record that Tockes requested accommodation in the

performance of his job, any record of Air-Land providing

such accommodation, and the absence of any record in the

possession of Air-Land indicating Tockes’ physical im-

pairment with the exception of 2 letter from the Depart-

ment of Veterans Affairs received 18 months after Tockes’

termination. Nonetheless, this Court must consider this

evidence most favorable to Tockes as the nonmoving party

and assume that Air-Land — and Merrell in particular —

regarded Tockes as possessing a physical impairment.

However, due to the lack of substantive evidence

corroborating Tockes’ self-serving statements, no reason-

able juror could find that Tockes alleges facts sufficient to

demonstrate Air-Land perceived his physical impairment

as substantially limited in any major life activity. Again

relying primarily on the statements attributed to Merrell,

Tockes attempts to meet his burden by arguing that Air-

Land perceived him to be substantially limited in any

major life activity involving the use of a hand, going so far

as to contend Air-Land viewed him as essentially having

the use of only one limb, and then more specifically con-

tending Air-Land believed he was substantially limited in

his ability to work. Beyond his own deposition testimony,

he offers absolutely no facts to support this contention.

Air-Land clearly believed he could perform the job for

which he was hired or they never would have hired him in

the first place. He passed the required physical with flying

colors as well as all other required tests. Air-Land pos-

sessed no written record of Tockes’ physical impairment

- App. 24

except for the possibility of an employee income certifica-

tion form, a copy of which was not provided to the court.

The letter from the Department of Veterans’ Affairs

Tockes contends he provided Air-Land when he was hired

was also missing from Air-Land’s records until such a

letter was received 18 months after Tockes’ termination.’

In light of the consistent history of employment Tockes

listed on his application performing the very duties Air-

Land required for the position they hired him for, Air-

Land had no reason to believe Tockes was substantially

limited in his ability to work or even his specific ability to

perform the requirements of the Air-Land position. See,

Heimann v. Roadway Express, Inc., 228 F.Supp.2d 886,

903 (N.D.Il. 2002). Further, Tockes admitted he could not

remember ever discussing limitations on non-work related

activities with any Air-Land employees. Finally, assuming

arguendo, that even if after hiring Tockes Air-Land

decided that they incorrectly determined he could perform

the duties of his job, this would be insufficient to establish

Air-Land considered Tockes substantially limited in the

major life activity of working. See, Toyota Motor, 122 S.Ct

at 693 (An inability to perform manual or occupation-

specific tasks does not necessarily show an inability to

perform the central functions of daily life); see also, Mack,

308 F.3d at 780 (“An impairment that interferes with

work-related tasks, however, does not necessarily rise to

the level of a disability within the meaning of the ADA.”);

Byrne, 979 F.2d at 565 (The Seventh Circuit has held that

* In fact, Tockes’ own filings with this Court incorporate the letter

dated September 17, 2002, rather than one bearing an earlier date

more in compliance with Tockes’ version of the facts.

App. 25

“an inability to perform a particular job for a particular

employer” is not sufficient to establish a substantial

limitation on the ability to work, instead, “the impairment

must substantially limit employment generally.”)

Fed.R.Civ.P 56(c) provides that summary judgment

“shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, to-

gether with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” A

dispute about a material fact is “genuine” if the evidence is

such that a reasonable jury could return a verdict for the

non-moving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A plaintiff cannot rest on mere

allegations of a claim without any significant probative

evidence to support his complaint. Id.; Beard v. Whitley

County REMC, 840 F.2d 405, 410 (7th Cir.1988). “One of

the principal purposes of the summary judgment rule is to

isolate and dispose of factually unsupported claims and

defenses ... ” Celotex Corp. v. Catrett, 477 U.S. 317, 323-4

(1986). Therefore, the non-moving party is required to go

beyond the pleadings, affidavits, depositions, answers to

interrogatories and admissions on file to designate specific

facts showing a genuine issue for trial. See Bank Leumi

Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

Clearly, Tockes has not done this, and granting Air-Land’s

Summary Judgment motion is required.

Having found that Tockes is not a qualified individual

with a disability, had no record of such disability, nor

could reasonably be believed to have been regarded as

having such a disability, his discharge is not covered by

the ADA because employers do not run afoul of the ADA

even if they take adverse employment actions based on

App. 26

physical impairments that are “limiting, but not substan-

tially limiting” such that they do not rise to the level of a

disability under the ADA’s definition. Sutton, 527 U.S. at

490-491. As a result, Air-Land’s motion for summary

judgment will be granted.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED

that Defendant’s Motion to strike Tockes’ Response to Air-

Land’s Motion for Summary Judgment is DENIED.

However, Defendant’s Motion for Summary Judgment is

GRANTED. 7

CASE TERMINATED.

ENTERED this 10th day of February, 2003.

/s/ Joe B. McDade

JOE BILLY McDADE

Chief United States District

Judge