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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0767%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1179

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0767%3A1. Public record. Not legal advice.