Petition for Writ of Certiorari — Hopkins v. Godfather's Pizza, Inc. (No. 05-1153)

ee

“wash dishes” as part of his regular duties as a

delivery driver, (which in this case meant Hopkins

was working bent over at the waist over a 24 inch

deep set of waist high sinks, bobbing up and down

as he was moving dishes in and out of the sinks,

which had placed direct strain right on the point of

the lumbar spine where his primary back injury

exists) and (b) being ordered to “wash dishes” as

part of his jobs regular duties as a delivery driver

rd : ; :

with 3° degree burns on his left hand, (resulting in

a dangerous infection,) which was alleged to be a

neghgently tortuous injury; and as to Count II, A

Failure to accommodate claim in being again

required to wash dishes as part of his job duties as

a delivery driver, with a retaliatory reduction of

hours. after opposing this continuous failure to

accommodate Hopkins Spinal impairments by

Wright. that culminated im = a_ constructive

discharge.

me

During the course of these District Court

proceedings, Hopkins was denied the appointment

of counsel, was require. to prepare his case

without access to the facilities, denied access to

witnesses, and denied timely access to accurate

records by the District Court. Hopkins was

forcibly deposed without counsel. Hopkins

Counsel entered his appearance at the end of

discovery, receiving only a short extension to try

to repair the case.

Hopkins Counsel pointed out to the District

Court on Motion for Summary Judgment that to

maintain a failure to accommodate claim under the

ADA, Hopkins had clearly proven his failure to

accommodate claim in that: (1) Hopkins did show

by medical records that he was disabled with a

Degenerative Interveterbral: disc disease of the

lumbar spine. and brain damage affecting memory:

(2) Hopkins did show he was qualified to perform

aSe

the essential duties of the position of driver, which

was delivery, provided that his spinal impairments

were accommodated in not being required to wash

dishes, scrub floors, and take out garbage cans,

(3) Hopkins did show that the hiring

accommodations of not being required to wash

dishes, scrub floors, and take out the garbage cans

was denied by Wright in her capacity as store

manager because she admitted that she did not see

it as necessary, in her interrogatory.

Godfathers also moved for Summary

Judgment, reversing all prior held positions and

raised issues that Godfathers did not define prior to

raising them in the District Court as to just what

Hopkins impairments were, Godfathers did not

state what kind of accommodations was needed for

these impairments, or show a doctors report on

Hopkins impairments in support of their claims of

having made the necessary accommodations for

-6-

Hopkins impairments, and did not state what kind

of accommodations was made_ for __ these

impairments or even identify by whom _ these

accommodation(s) were made. Godfathers claimed

to the Court that there was no actual legal

obligation under the ADA to accommodate

Hopkins as to the washing of dishes because the

affected impairments were accommodated, leaving

only the issue of the burns, which were themselves

only a temporary impairment that did not qualify

for ADA protection under Toyota v Williams, and

thus there was no obligation to accommodate

them, with Godfathers telling the Court that the

other qualifying impairment(s) did not matter in

this case as Godfathers had accommodated these

impairments whenever Hopkins had asked, a

contention based only on Hopkins deposition.

ty

STATEMENT AS TO

THE DISTRICT COURTS DECISION

The District Court stated that while Hopkins ts

a qualified individual with a qualifying disability,

and that Godfathers knew of his impairments, thus

meeting two of the three legs required for an

action under the ADA, there was in this case no

evidence of Hopkins having suffered an “adverse

employment decision because of his disability” that

is required to maintain a failure to accommodate

claim under. DVORAK V._MOSTARDI — PLATT

ASSOCIATES. INC 289 F 3d 479. 483 (7" Circuit.) The

District Court “explained” that (1), There was no

failure to accommodate in Wright’s requiring

Hopkins as a qualified individual with a qualifying

impairment to wash dishes as part of his job duties

with burns on his hand because the bums were

temporary impairments not covered by the ADA,

in re, TOYOTA MOTOR MFG... KY_INC. V.

Phe District Court failed to understand the nature of the

dishwashing claim, See Definition® on page 20

-8-

WILLIAMS 534 U.S. 184 (2002), and Hopkins

Other impairments did not matter as these had

been _accommodated*, and; (2) Wright did not

actually transfer Hopkins from his being a Driver

to a dishwasher, and; (3) Wright’s termination of

Hopkins was immediately reversed by Godfathers,

and; (4) Hopkins returned after unpaid medical

leave to work for one week, only to resign

voluntarily one week later after his hours had been

reduced. The District Court then ruled that the

Charge letter to the IDHR was _ inadmissible

evidence as it was not signed and certified at the

time it was filed with the Illinois Department of

Human Rights, and thus there was_no_proof that

Hopkins hours were reduced for improper reasons.

Hopkins timely Motion to reconsider pointed

out there had been a fraud upon the Court,

obstruction of justice in the omission of records,

and scrambled records, the denial of access to

withesses by the Court, and serious judtctal error in

-9-

both the facts, and the interpretation and

application of the accommodation provisions of

the ADA, but the District Court denied the Motion,

selectively avoiding the issues of fraud and

obstruction. The Appeals Court of the 7" Circuit

refused to review the Summary judgment Denovo,

also. selectively avoiding the issues of fraud

because Hopkins used a Motion under Rule 59

(mislabeled as a Petition under rule 60 due to the

fraud_issue, but was filed within the 10 days

allowed for rule 59 motions), arbitrarily using the

abuse of discretion standard while admittedly

treating the rule 59 Motion the same as a rule 60

Petition for Relief.

- STATEMENT OF THE FACTS -

(1) Hopkins is a “disabled person” under Social

Security Disability rules, having multiple severe

physical and mental impairments. The nature of

these multiple impairments consists of: (1) A

neuromuscular-skeletal disorder of the spine

described herein as (a) an injury to Hopkins spinal

cord causing sharply reduced skin sensitivity

(numbness) in hands, arms, and right side torso,

-10-

(b) Degenerative Interveterbral disc disease of the

lower spine (lumbar) creating intense pain and

difficulty in bending and lifting, (2) Post-traumatic

brain damage affecting short term and long-term

memory, Cognitive judgment, and a severe anxiety

disorder. (RA. PLAINTIFF'S RESPONSE — TO

DEFENDANTS MOTION FOR SUMMARY JUDGMENT.

page 6, Plaintiff's Motion tor Summary Judgment, Exhibit

A, pages 24 to 34.)

(2) Hopkins applied for the position of Delivery

driver on January 13, 2001, disclosing his various

impairments and that he could perform the

essential duties of the position of a delivery driver

provided there was accommodation for his

impairments. (R.A PLAINTIFF S RESPONSE TO 5

DEFENDANTS MOTION FOR SUMMARY JUDGMENT.

page 6, page 21).

(3) On January 19, 2001, Perry Crowley hired

Hopkins for the position of Pizza Delivery Driver

for part time employment. Perry Crowley made

the necessary accommodations for Hopkins spinal

impairments consisting of (1) Hopkins was not to

be required to perform the duty identified as

“washing dishes” except when it was only

dhsolutely necessary, meaning to _ Hopkins

understanding only when there would be no one

else to do it, and (2) Hopkins was not to be

required to scrub floors, haul garbage or perform

other similar heavy labor tasks that were included

into the position of Delivery driver.

ao

(4) Over the course of six months, from January

19 to June 24, of 2001, the accommodations made

for Hopkins impairment by the assistant manager

Perry Crowley, were in turn admittedly denied by

Godfathers store manager Beth Wright, who stated

she did not see it as necessary. Since Hopkins only

worked with Wright on average of once per week

at that time, Hopkins had no cause to do more than

just complain about the denial of accommodations.

(R. A, PLAINTIFF'S RESPONSE TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT, page 21, 43)

(5) On May 10, 2001, Hopkins was injured off

the job, causing third degree burns on his left hand,

had reported this to Perry Crowley, and was

allowed to continue working with accommodations

for this additional impairment. (R.A. Motion for

Summary Judgment, exhibit B, page 35.) On May 12,

the Store manager, Wright, was working, and she

proceeded to order Hopkins to wash dishes with

the other drivers, instructing him to remove the

bandages from his hand so as to wash dishes with

the other drivers. (R.A. Motion for Summary Judgment.

exhibit B, page 38). In addition to this, Wright also

informed Hopkins that he was being transferred to

the position of Dishwasher Bus Person, to be

effective May 17, 2001. (R.A. Motion for Summary

Judgment, exhibit J, page $1, exhibit C, page 38, exhibit B.

page 35)

A hy

(6) Hopkins protested this disregard for his

impairments, and opposed this transfer from May

12 to May 17, until Hopkins ultimately refused to

accept this treatment any further, and refused the

reassignment of job duties. Hopkins refused to

clock in on May 17, explaining © his supervisor

Rochelle that for reasons of his spinal impairments

he refused to be the store dishwasher. Hopkins

explained that he was leaving to seek medical care

since his hand was now infected and bleeding that

was caused by being required by Wright to wash

dishes with burns on his hand for which he needed

to seek medical attention. Hopkins stated he would

come in to discuss the problems on the next day

with Wright since she had deliberately left before

these issues could be discussed. (R.A., Motion for

Summary Judgment, exhibit B, page 35)

(7) On the next day, May 18, 2001, Wright

terminated Hopkins for his opposition to her

employment practices; his refusal to accept the

transfer mandated by Wright was called by- her

“job abandonment.” Hopkins filed a telephone

complaint of discrimination to Deanna Lofton of

Godfathers Corporate claiming a violation of the

ADA based on failure to accommodate and of

retaliatory termination. Lofton turned the matter

over to Teresa Piersee (R.A, Motion for Summary

Judgment, exhibit B, page 35)

(8) Piersee temporarily reversed Wright later

that same day, reimstating Hopkins as a driver.

(R A. Motion for Summary Judgment, exhibit B, page 35)

i

(9) In response to Hopkins complaint to

Corporate which had restored Hopkins to

employment as a driver, Hopkins was admittedly

placed by Wright on “indefinite suspension”

without pay for the reason of the infection of his

left hand, with Hopkins not allowed to return to

work until he could wash dishes as part of his job

duties. Wright admitted that she did not initiate

Workman’s compensation arising from the

infection. (R.A., Motion for Summary Judgment, exhibit

J, page 53, page 55)

(10) Upon his return from this imposed leave

on June 11, 2001, Wright admittedly proceeded to

require Hopkins to again wash dishes and take out

garbage as part of his job duties, then chose the

very next week thereafter to reduce Hopkins

scheduled hours of employment from 18 to 11

hours. When questioned as to why, Wright stated

that she had enough drivers, and did not need

Hopkins in the hours formerly worked by Hopkins.

(R.A. Motion for Summary Judgment, exhibit J, page 53,

page 55).

(11) Protests about this conduct as a form of

constructive termination was made to Godfathers

Corporate. Piersee stated by phone that this was

Wrights right to do. (RA. Plaintiff's response to

Defendants Motion tor Summary Judgment, page 119)

-|4-

(12) When the schedule for the next week

showed a further reduction in hours to eight hours,

Wright explained this was her choice, that she did

not need Hopkins, and that Hopkins was at least

working. This reduction of Hopkins hours was,

with the continued denial of accommodations, the

straw that broke the camels back. and seeing the

issue as pointless to continue, Hopkins filed a

second complaint of failure to accommodate his

impairments, and of the retaliatory reduction in

hours in violation of the ADA by Fax, and

submitted his resignation to Deana Lofton of

Godfathers on June 24, 2001 explaining the facts

in detail, and filing a copy of the same document

in person as a complaint with the Illinois

Department of Human Rights on June 25.

-REASONS FOR REVIEW-

(1.) Due Process under the ADA

Pursuant to this U.S. Supreme Court's decision

in re Tennessee v_Lane 539 US. 941 (2004), any

Court's denial to a disabled person with brain

damage, of access to appointed legal Counsel, (in

re Powell v Alabama, 287 U.S. 45 (1932), and of

Access to necessary records, (im re Griffins

Itinois 351 U.S. 12 (1956). and of Access to

witnesses, 1S a_failure to accommodate that has

been declared a denial of due process.

5 $8

In this cause the U.S. District Court has

required Hopkins, known to the Court to be a

disabled person with brain damage, to prepare and

prosecute his ADA action without the benefit of

appointed Counsel, denied access to witnesses,

denied access to facilities and accurate records,

and despite his protests, ordered by the Court to be

deposed even if he did not have counsel, or have

his case dismissed, and thus Hopkins was

compelled to be deposed and was in effect “was

allowed” to_be exploited _as_a_ brain damaged

individual without the protection of counsel. The

th pp: 7a. . ) .

7" Circuit Court of Appeal’s refuses to consider

discrimination by the District Court, claiming

Hopkins has not raised the issue before the District

Court-hut the issues were raised, but there is no

clear rule on this issue as to when and how it must

he raised!

-16-

The issue of counsel was raised by Hopkins to

the District Court first in the Motion to reconsider

leave to file as a pauper, in all the pretrial phone

conferences, and there were several Motions to

compel Godfathers to disclose records and

witnesses that were denied, and several post trial

documents pointing out the Courts refusing to

compel discovery and disclosure of witnesses, that

combined have compromised Hopkins ability to

prepare and present his claims. The issue 1s thus

timely and properly before this Court in_its

supervisory Capacity, as a matter of due process

under federal law. see Bank of Nova Scotia v.

United States, 487 U.S. 250, 254-255 (1988),

entitling Hopkins to a new trial.

(2.) ADA Question in employment.

This case raises the question as to how much

pain, suffering and abuse a disabled person must

accept as a condition of their employment before

such a disdbled varty is protected by the

ms B

accommodation provisions of the ADA. A

reasonable person would _ believe _ that

accommodations for the protection of the health of

disabled employees was mandatory, see_Chevron

US   A. & NBSP; Inc. v Echazabal, 534 U.S. 991,

but the District Court limits the issue of Chevron

to hiring only, see appendix b, page 56.

There is no clear consensus about this

accommodation issue among the Circuit Courts,

for example, noting the Ist Cir. (1996) in re:

Jacques v. Clean-Up Group, Inc.,96 F.3d 506, 511,

in which the I“ Circuit finds that “Discrimination

in the employment context under 42-U.S.C-

12112(5) of the ADA 1s defined as “the denial of

the necessary accommodations that would

otherwise enable a qualified individual with a

qualifying disability to work at a position they

desired.”” Then there is the 9" Circuits Kimbro v.

Atlantic Richfield Co.. 889 F.2d 869, 878-79

(which is often cited by this Court to define the

ADA based on the rehabilitation act.)

-18-

The District Court clearly states that Kimbro

doesn t even apply to ADA cases, see appendix b,

page 56. Contrast this with the 7° Circuit, in re

Dvorak v Mostardi Platt Associates, Inc. 289 F.3d 479.

483, which holds that a party must have suffered an

adverse employment action as a condition to

maintain an action under the ADA- An adverse

th

employment action is generally defined in the 7

Circuit as a materially adverse change in_the terms

and conditions of :mployment.

In this Case, based on Dvorak, the District

Court “found” that it was not a failure to

accommodate Hopkins’s spinal impairment’ by

being made to “wash dishes” as part of his job

duties as a delivery driver! The District Court

added that-a failure to accommodate claim cannot

be maintained without “an adverse employment

decision due to a party's disability” citing Dvorak

while stating there had been no_such overt act of

discrimination based on Hopkins disability:

10s

The District Court came to this conclusion

without ever performing a proper analysis of the

case. It should be noted here that: (a.) Wright

admitted in her Deposition that when Hopkins was

hired, accommodations for Hopkins _ spinal

impairment had been made by assistant manager

Perry Crowley, an agreement that was kept by the

two supervisors, Rochelle Shoup and Larry

Rhodes, and; (b.) Wright admitted im_ her

interrogatory that Hopkins spinal impairment, a

known painful and debilitating Interveterbral_ disc

disease of the low back, was not accommodated

when she admitted that she treated Hopkins ne

differently than the other drivers, and made him

wash dishes. Thus, while Hopkins clearly could

perform this job duty if he was ordered to, and had

heen ordered to even when he had hurns on his

hand, it was known to be also be very painful and

dehilitating.

-)(-

{*It must be understood by this Court that

“washing dishes” in this case meant Hopkins was

required to work bent over at his waist over a 24

inch deep set of three waist high sinks, essentially

bobbing up and down as he was moving dishes in

and out of the sinks, which placed direct strain

right on_the point of the lumbar _spine where his

primary back injury exists! /t must be noted also

that The District Court accepted only those claims

of Hopkins that Godfathers agreed with. }

Hopkins was admittedly required to wash

dishes and scrub floors and take out garbage cans

as_part_of his job duties as a delivery driver, and

was terminated for opposing her practice, see

Wright’s Deposition, and upon being restored,

Hopkins hours were reduced. How much more of

an “adverse change" in the terms and conditions

of Hopkins employment that he as a disabled

person could be reasonably “required” to endure in

order to have a cause under the ADA” Just How

much pain and suffering is required by the l-ederal

Courts before the law_is found to actually protect

the disabled from indifferent employers?

Rm

(3.) Conflict between a Circuit Court and

this Court: This Supreme Court, in re Edelman vy

Lynchburg College, 533 U.S. 928, found that the

District Courts are required to give some deference

to agencies in their proceedings under Chevron

U.S. A. Inc. vy. Natural Resources Defense

Counsel, Inc.467 U.S. 837, 843-844 (1984).

The ADA 1s a remedial process that is

initiated by disabled laymen. In the processing of

those claims the District Court 1s required to make

some deference to these Agencies use of their own

procedures and rules in the filing of charges, in re

Edelman, so as to prohibit the undermining of the

intent and purpose of the agencies in question by

the actions of either party, and by unreasonable

: ig ’ _ tI .: .

actions of the Courts themselves. The 7° Circuit

in this cause has stated that the District Court did

not abuse her discression im finding the complaint

charge to the IDHR was inadmissible because it

ay 29

—

was not initiated with the Illinois Dept. of Human

Rights as the rules of the District Courts require.

This case constructively nulls this Supreme

Courts holding in re Edelman, and is intellectually

unsound, and detrimental to society itself.

(4.) The 7" Circuits policy in re the Federal

Rules of Procedures under rule 59, violates the

First Amendment and ts thus invalid, as it was the

intent and purpose of Congress that rule 59 of the

Federal Rules of Civil procedure would provide a

remedy for judicial errors of law and fact that

would reduce the use of unnecessary appeals,

which is consistent with the intent and purpose of

the rules to promote fairness and reduce the cost of

litigation. The Right to petition the Courts of

Appeal for relief from error 1s one of the most

ae a T a ‘ a

precious rights We have to protect us from the

“mistakes” of the judicial process, so while the

Courts may regulate the use of these 1”

amendment rights by describing when and how

AAS gy

—~

such may be taken, the Courts cannot arbitrarily

destroy this right, see Johnson v Avery, 393 U.S.

483, 485 (1969). It 1s constitutionally indefensible

for any Court of appeals to constructively

“sanction” any party for exercising that 1*

Amendment right to seek redress from a real

perceived error by the timely use of the prescribed

procedures, see Thomas v Collins 323 U.S. 516, 65

S. Ct 315, L. ed. 430 (1944).

The Seventh Circuit Court of appeals has

thus imposed “a condition” upon the use of rule

59 that any appellate review would then be limited

to just abuse of discression, an arbitrary form _of

sanctions due only to that Courts concerns about

possible misuse of the motion, see Neal v

Newspaper Holdings Inc, 349 F.3d 363, 368 a

Cir. 2003.) Any concerns by the Lower Courts

about the potential misuse of the rule is strictly a

matter for Congress or this US. Supreme Court to

address.

-74-

Research has not shown any of the other

Circuits adopting a similar policy, and it is not

seen as being within the Article II] powers of the

Courts of Appeal to modify the rules of procedure

with such pointless severity as has been shown

th nS : ” > .

here by the 7 Circuit Appeals Court’s refusal to

review the appeal for error in a Summary

Judgment proceeding by Denovo review, see in re

Bank of Nova Scotia v. United States 487 US.

250 254-255 (1988). This policy on the part of the

Appeals court to limit review of a Motion for

reconsideration under rule 59(e) of a Summary

Judgment proceeding to a standard of Abuse of

discretion. where the judicial error must in turn be

so. fundamental that it— cannot. he reasonably

justified, ix only justifiable when _it_is applied to

rule 60_motions. Such a policy applied towards

rule 59 allows ordinary error, fraud, and

misrepresentation fo just pass through — the

appellate review procedure without capacity for

Bis 3.

correction, corrupting both the intent and purpose

of the Appeals Courts as first tier error review, 1n

re; Halbert v Michigan 543 U.S. (03-10198)

(2005), and California Motor Transport 404 U'S.

5312-513 (1972). Appeals from summary

judgments after motions to reconsider under rule

59(e) should be subject to review just like

Summary Judgments, as conventional wisdom

equates a Rule 59 Post Trial Motion to reconsider

to be just a continuance of the judgment effecting a

stay so as to give the Court the opportunity to

consider what may have been misunderstood,

omitted, or concealed, then the proceeding should

go on to be reviewed De Novo in all cases of

Summary Judgment to prevent serious injustice in

re Tumey v Ohio. 273 US. 510.

(5.) Judicial lack of Impartiality denying

due process: District Court Judge Jean Scott

clearly does not like Hopkins since Hopkins had

-26-

hrought an action before her Court accusing one

of her close friends and former associates of High

('rimes and misdemeanors, see Hopkins v Illinois

03-3274. This animus-is clearly demonstrated by

the District Court in this case. The District Court

clearly not only did not appoint counsel to Hopkins

as a disabled indigent with brain damage, but_has

also denied Hopkins access to essential witnesses,

and the timely access to vital documentation. This

has made Hopkins ADA action meaningless from

the start, contrary to what this U.S. Supreme Court

has held since Powell v Alabama. The District

Court furthermore acted angry when it was pointed

out by Hopkins Counsel on Motion to reconsider

that the records submitted by Godfathers in

discovery had been intentionally tendered

incomplete, serambled, and was missing key

pieces that did _not_hecome available until after

Godfathers had moved for summary judgment,

which had not been deciphered until after the

arte

Court had ruled, but the District Court, despite

being Fairly told about this devious concealment

and obstruction of justice by Defendants, scolded

Hopkins Counsel for not having raised these issues

timely, which is_utterly ridiculous behavior,

contrary to Degan v United States, 517 U.S. 820

(1996). This Court has not yet addressed as to just

when and how a party can raise the issue that a

District Court has failed to recuse themselves due

to lack of impartiality, in re Liteky v United States,

510 U.S. 540 (1994). The 7" Circuit has refused to

even consider it based on an uneven interpretation

of the rules rather than its merit.

(6.) There has been Fraud upon the Court.

For purposes of obtammye a Summary

pur} RS ’

Judgment, Godfathers deceitfully did not define to

the District Court just what Hopkins impairments

were that they admitted to accommodating, which

is a very important omission, did not state what

kind of accommodations was needed for these

=P

impairment(s), and did not state what kind of

accommodations was supposedly made for these

impairnment(s) or even identify by whom these

accommodation(s) were made. 7his is important,

because Godfathers has deccitfully represented to

the District Court that Godfathers had made all the

necessary accommodations for Hopkins

impairments. “whenever asked” based on Hopkins

deposition. 4A Half truth is still a_ lie, as

demonstrated by the admitted fact that Perry

Crowley, in his capacity as the assistant manager,

did accommodate Hopkins impairment, but this

statement was also false, as demonstrated by the

admitted fact that Wright, in her capacity as the

Store manager, admittedly did not_muke the effort

to_accommodate Hopkins spinal_impairments in

her interrogatory. Hopkins 1s entitled to a new trial

before an unpartial court that 1s less “accepting” of

fraud and half truths.

-79-

(7.) Deposing the mentally impaired is a

dental of the very concept of Due _ process,

particularly if that person is not represented and

protected by counsel. With all due respect to this

Court, a memory impaired person cannot be

realistically be expected to recall competently the

events in question of an incident that occurred

three years prior. /t reaches the level of absurdity

for any court to accept a deposition as a competent

representation of facts from a person who is

memory impaired, especially to the extent Hopkins

is. (80% according to the tests. This means he can

only recall accurately about 23% of various events

unless he has written them down. Then it rises to

only 70% recall.) He ts not sufficiently competent

to be deposed without the benefit of Counsel.

CONCLUSION

Hopkins brought all his actions before Judge

Scott in the good faith belief that at least in the

federal courts his rights as a disabled person

630)

would be respected. The District Court in this case

cannot be said to have considered the case in the

best light for Hopkins as the Court paid no

attention to the fact that being required to wash

dishes and scrub floors with his spinal_ impairment

was cruel and unusual treatment that posed serious

risks to Hopkins health, the Court did not pay real

attention to the law, and very little to the merits of

Hopkins claims.

Hopkins prays that this Supreme Court shall

grant certiorari, or whatever relief this Court finds

appropriate.

OATH AND AFFIRMATION

We affirm that the foregoing is true except as

to statements made upon information and belief,

and as to those, We believe them to be true.

Witness our hand under the penalties of perjury

; | ‘ ~

this 7°’ day of December, 2005

Witness our Hand;

Glenn J. Hopkj Alans fp oorhhwass

William Sh

-3|-

INDEX OF APPENDICES

Appendix A Ist order, Pages 32-47

Appendix B: Denial Motion to reconsider

48-64

Appendix C Mandate, Pages 65-7]

sue

Appendix A

United States District Court

Central District of Illinois

Hopkins v Godfathers Pizza Inc. No. CV-02-3206

Judge Jean Scott, Order of Summary Judgment

August 24, 2004

This matter comes before the Court on

Plaintiff Glenn J. Hopkins motion for Summary

Judgment (d/e 54) and Defendant Godfathers Pizza

Inc and Beth Wrights Motion for Summary

Judgment (d/e 57). Plaintiff claims _ that

Defendants discriminated (count I) and retaliated

(Count II) against him in_ violation of the

Americans with Disabilities Act, 42-U.S.C. sect

12102 et Seq. (ADA) For the reasons set forth

below, Plaintiff's Motion for summary judgment is

denied, and Defendants Motion for summary

judgment is allowed.

STATEMENT OF FACTS

On January 19, 2001, Hopkins began working

for Godfathers Pizza Inc. (Godfathers), as a part

time delivery driver at the South Dirksen Parkway

store in Springfield Illinois. On January 13, 2001,

prior to beginning work, Hopkins discussed the job

description for a part time delivery driver with

assistant store manager Perry Crowley (Crowley).

Crowley told Hopkins that the part time

delivery driver job description includes the job

descriptions for the dish/bus position and back of

house position. Hopkins told Crowley that he had a

preexisting neuromuscular condition that limited

his ability to lift and bend. Crowley indicated that

a

Godfathers would accommodate Hopkins

disability. Memorandum in support of Defendants

Motion for summary Judgment (d/e 58)

(Defendants Memorandum) exh A, Deposition of

Glenn Hopkins, page 134-135.

In addition to delivering Pizzas Hopkins also

mopped floors, performed general cleaning,

brought dishes in, loaded and unloaded dish racks,

cleaned dishes, restocked clean dishes, restocked

stations, folded boxes, and hauled trash. Id, at 124-

27, 131-32; 143. Over the course of his

employment Hopkins encountered tasks that he

could do with accommodation and others he could

not do at all. Hopkins’ limitations were

accommodated by Godfathers in several ways. For

example. He discovered that he had difficulty

standing and folding boxes at the same time and

was allowed to fold boxes while kneeling in the

back beyond the view of the customers. Id at 120.

In addition Hopkins testified that he was given

help lifting the dough mixing bowl when it was

filled with water or the bowl was left empty of

water specifically so it would not be too heavy for

him to lift. ID. At 122. Hopkins was also excused

from performing jobs precluded by his disability

such as taking out the trash which required heavy

lifting and cleaning the walls which required

balancing on a ladder. Id at 125-26-143.

From January 22, 2001 through May 10, 2001,

Hopkins had no complaints about his work

environment at Godfathers, his supervisors

4h:

accommodated all of his physical challenges. Id at

128.

On May 10, 2001, Hopkins severely burned his left

hand in a non work related incident. He was

excused from washing dishes as part of his job as a

delivery driver on May 10-11 2001 due to the

burn, but was asked to wash dishes again by Beth

Wright (Wright) store manager on May 12 2001

because the dishwasher had been fired. ID. At 148-

49. Further, Wright told Hopkins that on May {7

2001 he would be a dishwasher, not a delivery

driver, Id at 146. Hopkins does not know if Wright

intended for him to wash dishes for just one day on

the 17", or if she intended him to become the

permanent dishwasher on May 17, 2001. Hopkins

felt he could perform as the dishwasher for one

day to help out, but would not be able to handle the

dishwasher position permanently because the

physical demands of the job would be too

demanding for him to Perform consistently. Id at

147. On May 17, 2001, Hopkins arrived at work

early to talk with Wright to clarify if his change to

dishwasher was permanent or temporary. Wright

was very busy, however, and left the store before

Hopkins was able to talk to her. Id at 151. Further,

the burns on Hopkins left hand had become

severely infected and were bleeding. Hopkins

testified that Assistant manager Rochelle Shoup

told him to seek medical treatment for his hand

and return with a doctors note. Id. At 152. Hopkins

left and sought medical treatment for his hand

-35-

On May 18, Hopkins returned with his

doctors note. He was informed by Wright that he

was fired for abandoning his job on May 17, 2001.

Id. At 153. Hopkins protested and showed Wright

his Doctors note, to no avail. Hopkins then called

Godfathers Human resources department to protest

that same day. Theresa Piersee (Piersee) Director

of Human resources, over ruled Wrights decision

to fire Hopkins, and told him to return to work as

delivery driver after his doctor released him to

work again. Id at 155.

By June 6, 2001, Hopkins left hand had healed

sufficiently his doctor released him to return to

work. Id exh G. Hopkins was reassigned to the

June 11-17 2001 work schedule and worked 17.57

hours that week. He also worked 9.05 hours during

the week of June 18-24 2001. When the schedule

for the week of June 25- July! 2001 was posted,

Hopkins claims he was scheduled to work only

eight hours. Id at 156. He complained to Wright

that he was not scheduled to work enough hours.

He explained to Wright that he needed more hours

to pay off a traffic ticket and that failing to pay off

the ticket could jeopardize his drivers license. Id at

157. Wright did not increase Hopkins scheduled

hours. Hopkins contacted Godfathers Human

resources department to complain about his

scheduled hours but was told that scheduling was

within the discretion of the store manager. Id. At

173. Hopkins submitted his voluntary resignation

by fax to Piersee on June 24, 2001, and began

seeking employment elsewhere. Id at 174.

-36-

ANALYSIS

At summary Judgment the movant must present

evidence that demonstrates the absence of a

genuine issue of material fact, Cellotex Corp v

Catrett, 477 U.S. 317, 323-24 (1986). The Court

must consider the evidence presented in the light

most favorable to the non moving party. Any

doubt as to the existence of a genuine issue for trial

is resolved against the moving party, Anderson v

Liberty Lobby Inc. 477 U.S. 242, 255 (1986).

Once the moving party has produced evidence

showing that it is entitled to summary judgment,

the non moving party must present evidence that

shows that issues of fact still remain. Matsushita

Elec. Indus. Co Ltd, v Zenith Radio Corp. 475

U.S. 574, 586. (1986). When viewed in the light

most favorable to Hopkins, the Court finds the

Defendants are entitled to summary judgment.

I. Beth Wright as an individual defendant

As an initial matter, Defendants are correct that

Hopkins cannot hold Beth Wright liable for his

claims of discrimination and retaliation under the

ADA, Silk v City of Chicago, 194 F.3d 788, 797

n.5 (7"" Circuit 1999) (“Our case law is clear that a

supervisor cannot be held liable in his individual

capacity under the ADA or under Title VII,”); see

also Shotz v City of Plantation Florida, 344 F.3d

1161. 1172 n 17 (11" Circuit 2003). ( concluding

that a supervisor cannot be held liable in his or her

individual capacity under the ADA, and citing

cases approving that principle from the 6", 7thm

10", and 11" Circuits). Accordingly, Beth Wright

S39

is dismissed as an individual defendant in this

case.

I] Count I: Discrimination

Defendants Dispute that Hopkins _ has

established a prima facie case of discrimination

under the ADA. To establish a prima Facie case, a

plaintiff must show that he: (1) had a qualified

disability as defined by the ADA: (2) had the

qualifications to perform the essential functions of

the job either with or without reasonable

accommodation; and (3) suffered an adverse

employment action because of his disability.

Dvorak v Mostardi Platt Associates, Inc. 289 F.3d 479, 483

(7th Cir.2002).

Hopkins presents evidence of several injuries that

affected his employment at Godfathers: (1) a

severely burned left hand that he suffered in a non

work related incident on May 10, 2001; and (2) a

pre existing neuromuscular condition incurred

before he began to work at Godfathers. Hopkins

burned hand 1s not a qualified disability within the

meaning of the ADA. As noted by the Supreme

Court, “the impairments impact must also be

permanent or long term.’”” TOYOTA MOTOR MFG.,

KY. INC. V. WILLIAMS 534 U.S. 184 (2002). Citing 29

CFR sect 1630.2(j)(2)(1)(in) (2003). Further,

intermittent episodic impairments are not

disabilities, the standard example being a broken

leg. VandeZande_ v_ State of Wisconsin Dept of

Admin, 44 F.3d 538, 544 (1995). Less than one

month after Hopkins burned his left hand, it had

sufficiently healed for him to return to work.

-38-

Accordingly, Hopkins burn injury to his left

hand was neither permanent nor long term, and

that injury cannot serve as the basis for a qualified

disability for Hopkins ADA claim. {footnote |

Hopkins also argues that Godfathers requirement

that not return to work until he was released by his

doctor was a failure to accommodate his disability.

Hopkins contends he could have done some work

despite his injured hand. Hopkins burned hand ts

not a qualified disability under the ADA.

Accordingly the Defendants were under no

obligation to accommodate it.}

Defendant’s do not dispute that Hopkins

neuromuscular condition makes him a disabled

person within the meaning of the ADA, or that he

was qualified to perform the essential functions of

his job. Defendants memorandum, pg 13.

Accordingly for purposes of the parties cross

motions for summary judgment that Hopkins had

satisfied the first two prongs of the prima facie

case.

Hopkins cannot show, however, that he suffered an

adverse employment decision because of his

disability. On May 18, 2001, Wright fired Hopkins

because she thought he had walked off the job on

May 17, 2001. Defendants memorandum, ech a,

Deposition of Glenn Hopkins, pgs 171-72, Exh f,

Deposition of Beth Wright, pg 52. There is no

evidence that Wright fired Hopkins because of his

disability. {Footnote 2; To the contrary, Hopkins

testified that he felt Wright wanted him to work as

a dishwasher on May 17 2001 because he felt she

-39-

considered him to be one of her most dependable

employees. Id. Ex A. Deposition of Glenn

Hopkins, pgs 169-70. Hopkins testified that Wnght

did not consider his disability throughout the

whole incident. He stated “she knew I was

dependable. She just never took into account I was

too screwed up to the handle the position. And

When | started protesting, she was just too busy to

try to understand why I was squeaking. She was

just too preoccupied at the time and it became a

problem.”} Further, this decision was immediately

reversed by Theresa Piersee, who _ reinstated

Hopkins to his job as a part time delivery driver on

May 18, 2001. Id Exh A, Deposition of Glenn

Hopkins, pgs 154-55. Additionally it is undisputed

that during the rest of his tenure at Godfathers,

Hopkins suffered no _ additional adverse

employment decisions based on his disability.

Hopkins returned to work during the week of June

11-17, 2001, and voluntarily resigned on June 24,

2001. {Footnote 3:Even if Hopkins claimed he was

constructively discharged, there is no evidence

Godfathers forced him to quit because of his

neuromuscular condition. }

Therefore Hopkins has not set forth a prima facie

case of employment discrimination under the

ADA. Defendants Motion for Summary Judgment

as to Count | is allowed, Plaintiffs Motion for

summary judgment as to count I 1s denied.

-4|-

III. Count IJ, Retaliation.

Hopkins claims that his hours were reduced

in the weeks after he returned to work in June in

retaliation for his complaint to Teresa Piersee on

May 18, 2001. Plaintiffs motion for summary

judgment (d/e 54) (plaintiffs motion), pg 18. He

further claims no other driver suffered a reduction

in hours, the store did not reduce its operations,

and that the hours he had previously worked were

given to another driver. In response, Defendants

argue that Hopkins hours were not reduced, and

that he has failed to establish a prima facie claim

of retaliation under the ADA.

To establish his retaliation claim, Hopkins

may present direct evidence of discrimination, or

indirect evidence under the burden shifting method

described by the Supreme Court in McDonnell

Douglas Corp v Green. 411 U.S. 792 (1973) Stone

v City of Indianapolis public utilities Div, 281 F.3d

640, 644 ‘te Circuit, 2002). Hopkins has not

presented direct evidence of discrimination.

Accordingly, he must establish that (1) he engaged

in statutorily protected activity, (2) that he was

doing his job in a satisfactory manner, (3) he

suffered an adverse employment action, and (4)

other employees who did not engage in a

statutorily protected activity were not subjected to

an adverse employment action. If the Defendants

non discriminatory reason is not rebutted by

Hopkins, then Defendants are entitled to summary

judgment.

-4)-

Within the meaning of the ADA, an adverse

employment action includes loss or reduction of

pay or monetary benefits, but can encompass many

other forms of adversity...such as job application

procedures, the hiring, advancement, or discharge

of employees, employee compensation, job

training, and the other terms conditions and

privileges of employment. Silk, 194 F.3d at 800,

quoting 42-U.S.C. 12112(a). Hopkins was cleared

to return to work from his hand injury on June 6,

2001, which was in the middle of a scheduling

period. Hopkins was added to the schedule for the

following week, June 11-17, 2001, and also

worked the week of June 18-24 2001, before

voluntarily resigning on June 24, 2001. {footnote

4: Hopkins complains that Defendants have not

produced personnel records for the week of June

25- July 1, 2001 and argues that the Court should

also evaluate the amount of hours he was

scheduled to work that week in order to determine

whether he subject to retaliatory treatment by

Wright. The Court declines to do so for several

reasons. First, the number of hours Hopkins might

have worked in that period are speculative since

the record shows variation between the number of

hours scheduled and those worked for the entire

period Hopkins was employed by Godfathers.

Second, Hopkins entered into an agreed protective

order (d/e41) issue by this Court on February 23,

2004, that applied to personnel information for all

employees of yodfathers between January 19,

2001, and June 25, 2001. Hopkins cannot claim

-43-

Defendants failure to produce records not covered

hy the agreed protective order is insufficient

production of personnel records during discovery}

In support of his claim that his hours were

reduced, Hopkins cites the Court to the complaint

he filed with the Illinois Department of Human

rights (IDHR). Plaintiffs motion, exh J. On motion

for summary judgment, supporting affidavits must

be sworn or certified. Fed Rule Civ. P 56(e)

Hopkins complaint to the IDHR is not a sworn

statement. Accordingly it is not sufficient to

support his claims that; (1) upon his return to

work, his hours were reduced from an average of

24 hours to 17 hours for the first two weeks of the

pay period, || hours for the second pay period,

and scheduled for 8 hours for the next pay period;

or 2, that during the same period there was no

reduction in overall hours on all drivers nor

reduction in store opere:ions. Plaintiffs motion,

pgl8. Further, Hopkins c.aims that his hours were

given to a newly hired employee, and cites exhibit

h in support of that assertion. Exhibit H provides

no information about work schedules or hours

worked by employee, and Hopkins does not

identify the other employee who _ supposedly

received his work hours. Accordingly, — the

evidence Hopkins presents does not support his

motion for summary judgment on his claim

Defendants retaliated against him.

In support of Defendants motion, Defendants

submitted payroll audits as proof of Hopkins

-44-

weekly work record. Defendants memorandum,

exh I. Hopkins has claimed that he had no

problems with his employment in the period

January 19 to May 10, 2001. Defendants

memorandum, Exh A _ Deposition of Glenn

Hopkins, pg 128.

To determine if Hopkins hours were reduced

in retaliation for his complaint, the Court compares

his-work schedule for the periods January 22, 2001

to May 6, 2001. To simplify a week to week

comparison of hours worked, the Court begins its

analysis on January 22, 2001, the first Monday

after January 19, 2001, and ends it on May 6,

2001, the last Sunday before May 10, 2001. For

the period January 22, 2001 through May 6, 2001,

Hopkins worked the following hours per week.

January 22-26 24.20

January 29 to February 4 22.85

February 5-11", 11.84

February 12-18 21.63

February 19-25 14.67

February 26-March 4 24.87

March 5-11 23.65

March 12-18 18.57

March 19-25 19.12

March 26 to April |, 7.18

April 2 -8 17.51

April 9 -15 14.03

April 16-22 17.77

April 23-29 24.48

April 30-May 6 14.63

Id. Exh I

-45-

Theresa Piersee* attests that the fluctuation in

Hopkins work hours reflects the normal flow of

Godfathers business operations. “Hours for crew

including delivery drivers fluctuates on a weekly

basis depending on sales projections.” Affidavit of

Theresa Piersee. Hopkins provides the Court with

no additional explanation for the fluctuation of his

hours from week to week. Accordingly, the Court

assumes the variation was caused by business

operations, and not by vacation, illness, or other

abnormal events specific to Hopkins himself.

Hopkins hours worked in the fifteen week

period between January 22, 2001 and May 6, 2001

ranged from a low of 7.18 hours worked in the

week of March 26- April 1 2001 to a high of 24.87

hours worked in the week of February 26-March 4,

2001. The average number of hours worked in that

period was 18.47 hours per week. {footnote 5 The

Court arrived at this calculation by summing the

number of hours worked in the fifteen week period

and dividing the total by fifteen weeks. The result

was rounded off to the nearest hundredth of an

hour. }

In comparison, Hopkins worked the following

hours in the two week allegedly retaliatory period;

June 11-17 17.57

June 18-24 9.05

*Piersee was not allowed to be deposed nor

required to answer interrogatories by the Court.

-46-

In the week of June 11-17, 2001, Hopkins

worked slightly less than his average hours per

week, but more hours that he worked in six of the

fifteen weeks between January 22, 2001, to May 6,

2001. {Footnote 6; Hopkins worked less than

17.57 hours in the following weeks; February 5-

11, (11.84 hours) February 19—25 (14.67 hours)

March 26-April 1, (7.18 hours) April 2-8, (17.51

hours) April 9-15 (14.03 hours) and April 30-May

6, (14.63 hours). }

In the second week, June 18-24, 2001, Hopkins

worked his second lowest number of hours in the

periods evaluated. He worked even fewer hours in

the week of February 5-11, 2001. Yet Hopkins

testified he had no employment problems during

those weeks, even though he worked comparable

hours to the hours he worked during the week of

June 18-24 2001. Thus Hopkins two week work

record between June 11-24 2001 does not show

that his hours were reduced in retaliation for his

complaint on May 18, 2001 when compared with

his work record in the period January 22-May 6,

2001. Hopkins hours in the week of June 11-17

2001 were close to average, and his hours worked

in the week of June 18-24 2001, while below

average, were comparable to two previous work

weeks about which Hopkins had no complaint.

In addition, during the two week period that

Hopkins worked after he returned from medical

leave he worked more than any other part time

driver.

-47-

At that point, it appears Mark Jackson was

working full time. The other part time drivers were

working fewer hours per week or no hours , during

that period. {Footnote 7: in the week of June 11-

17, 2001, Hopkins worked 17.57 Mark Jackson

worked 39.91 hours, Cameron Scovern worked

10.01 hours, and James Clinton worked 1.02

hours. In the week of June 18 to 24, 2001, Mark

Jackson work 40.00 hours, Hopkins worked 9.05

hours, Dylan Goller worked 4.77 hours, and

Cameron Scovern worked no hours, Exh I

Defendants motion for Summary Judgment.}

Therefore Hopkins has not established a prima

facie case of retaliation because he has not shown

that he suffered an adverse employment action,

and he has not shown that other part time delivery

drivers were not subject to a similar reduction in

work hours. Defendants Motion for Summary

Judgment as to Count II is allowed, and Plaintiffs

is denied.

Conclusion

Therefore Defendants motion for summary

judgment (d/e57) is allowed, and Plaintiffs motion

for summary judgment (d/e 54) is denied. This

case is Closed. It 1s therefore so ordered, August

20, 2004.

-48-

Appendix B

United States District Court

Central District of Illinois

Hopkins v Godfathers Pizza Inc. No. CV-02-3206

Judge Jean Scott, Order of denial of Motion to

reconsider, November 16, 2004:

This matter comes before this Court on

Plaintiff Glenn J Hopkins (Hopkins) Rule 60(b)(6)

Petition for Relief from Judgment, (d/e/66)

(original Petition), with attached memoranda in

support of Plaintiffs rule 60 (b)(6) petition for

relief from summary judgment,(memoranda) and

Plaintiffs rule 60 (B)(6) Petition for Relief from

Summary Judgment (d/e 67) (signed petition) with

attached addendum to rul60 Petition for relief from

summary judgment (Addendum) {Foot note |;

Hopkins’ original petition was unsigned.

Accordingly this Court granted leave for Hopkins

Counsel William Shaffer to file a signed petition.

August 27 2004 txt order. Attorney Shaffer did so

by filing Plaintiffs signed petition, which is

identical to plaintiffs original petition. Alongside

Plaintiffs signed petition however, Hopkins

submitted his addendum, which advances

additional arguments in support of his petitions.

Hopkins provides no explanation why his

addendum was not’ incorporated into his

memorandum. Further, there is no provision in the

local rules for Plaintiffs addendum, which also

violates the page limitation for memoranda in

support of motions. Local rule 7.1.6 Defendant

Godfathers Pizza inc however has not objected to

-49-

Plaintiffs addendum. Accordingly, with abundance

of caution, the court will consider it on Plaintiffs

petitions.| Hopkins petitions this Court for relief

from its August 20 order (d/e 64) denying

Plaintiffs motion for summary judgment (d/e/ 54)

and allowing Defendants motion for summary

judgment (d/e 57). For the reasons set forth below,

both the original and signed petitions are denied.

This Courts August 20, 2004 order sets forth

the facts and procedural history relevant to

Hopkins Petitions. Accordingly, the Court

proceeds directly to Hopkins petitions which were

timely filed. Hopkins contends that this Courts

August 20, 2004 order was entered in error for at

least five reasons; (1) error as a matter of law bv

requiring Hopkins to prove Godfathers intent to

discriminate against him; (2) error as a matter of

law for finding Hopkins infected Hand was not an

ADA qualified disability; (3) failure to admit

Hopkins Illinois Department of Human _ rights

(IDHR) complaint as evidence in contravention of

existing law, (4) error as a matter of law in

concluding that Hopkins did not set forth a prima

facie case of retaliation; and (5) premature entry of

summary judgment before Hopkins filed additional

relevant and material pleadings. Hopkins petitions

also attempt to introduce new evidence in support

of his retaliation claim

Under the Federal rules of Civil Procedure(b) a

party can petition for relief on several grounds

-50-

On motion and upon such terms as are just, the

court may relieve a party or a party's legal

representative from a final judgment, order, or

proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; (2)

newly discovered evidence which by due diligence

could not have been discovered in time to move

for a new trial under Rule 59(b); (3)

fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct

of an adverse party; (4) the judgment is void; (5)

the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it 1s

based has been reversed or otherwise vacated, or it

is no longer equitable that the judgment should

have prospective application; or (6) any other

reason justifying relief from the operation of the

judgment

Id

Rule 60 (b)s_ purpose 1s to permit a court to

modify a judgment to incorporate factual

information that comes to light only after judgment

and could not have been learned earlier. A

Contention that the judge erred with respect to

materials in the record is not within rule 60s scope,

Gleash_v Yuswak, 308 F 3d 758, 761 (7"" Circuit,

2002) (internal citations omitted.) Further, a

judgment may not be reopened under rule 60 (b)

except in compelling and _— extraordinary

circumstances, Metlyn Realty Corp and Esmark

Inc. 763 F.2d 826, 831 (7" Circuit, 1985)

i$};

In contrast, a motion pursuant to rule 59(e) is

suitable for challenging a Courts application of law

and facts. The purpose of rule 59(e) is to allow a

party to direct the courts attention to newly

discovered material evidence or a manifest error of

law or fact and enables the Court to correct its own

errors and thus avoid unnecessary appellate

procedures. Moro v Shell Oil Co. 91F.3d 872 (7"

circuit 1996). A “manifest error of law” has been

defined as the $ “wholesale — disregard,

misapplication, or failure to recognize controlling

precedent.” Sedrak_v Callahan 987 F. Supp 1063

1069 (N.D. Ill. 1997) To succeed, a rule 59(e)

motion must clearly establish either a manifest

error of law or fact or must present newly

discovered evidence. LB Credit Corp v Resolution

trust_corp, 49 F.3d 1263, 1267 (7" Circuit 1995)

quoting Federal Deposit ins. Corp v Meyer, 781

F.2d 1260 1268 (7" Circuit 1986). Accordingly,

although Hopkins seeks reconsideration under

Rule 60 (b)(6) alone, this Court evaluates his

Petitions under both rule 59(e) and 60(b) Cosgrove

v Bartolotta. 150 F.3d 729, 732 (7" Circuit 1998).

(if filed within the proper time, a court should

interpret the claims made in a motion and not limit

its analysis to the label attached by the moving

party because captions do not control.

For reasons set forth below, Hopkins petitions

are denied.

-52-

ANALYSIS

I, Count I: Discrimination

This Court ruled that Hopkins had _ not

established a prima facie case of employment

discrimination under the Americans’ with

Disabilities act (ADA) because he did not show

that he had suffered an adverse employment

decision based on his disability. August 20 2004

order, pg 9. The Courts holding was based on the

following evidence, viewed in the light most

favorable to Hopkins. On May 17, 2001, Hopkins

arrived at work early to ask Godfathers store

manager Beth Wright (Wright) if she intended

him to work as a dishwasher for only one night, or

to permanently change his job from delivery driver

to dishwasher. Id at 4. Wright left work before he

could ask his question. At that time, however,

Hopkins was suffering from a_ severe hand

infection. Assistant Manager Rochelle Shoup told

him to leave work to seek medical treatment and

then return with a doctors note. Id. Upon hi return

on May 18, 2001, Wright fired Hopkins because

she thought he had walked off the job on May 17

2001. {Footnote 2: Hopkins argues that Wright

fired him not only for walking off the job, but also

because he was unable and refused to perform the

duties of a dishwasher. Plaintiffs Addendum, pg

11. Even if Wright fired Hopkins both for walking

off the job and for refusing to perform as a

dishwasher, however, Godfathers immediately

reversed Wrights decision and reinstated Hopkins

$3

as a delivery driver. There was no adverse

employment action. }

After he was fired, Hopkins immediately

complained to Theresa Piersee (Piersee) director of

Human resources for Godfathers Pizza, who

reversed Wrights decision that same day and

reinstated Hopkins as a delivery Driver. She told

Hopkins to return to work as soon as his infected

hand healed sufficiently to allow his doctor to

release him. Id at 5. On these facts, the Court

concluded Hopkins suffered no adverse

employment action because Wrights precipitous

action had been immediately rectified by Piersee.

In his petitions, Hopkins argues that the Court

reached this conclusion in error. He characterizes

the Courts holding as requiring that Hopkins:

...show “intent to discriminate” was_ the

motivating factor in Wrights decisions to deny

(Hopkins) accommodations and transfer Plaintiff

from Delivery Driver to Dishwasher, and show

that intent to discriminate was the motivating

factor in Wrights decision to fire (Hopkins) for

walking off the job in protest of this denial of

accommodations...

Plaintiff's addendum, pg 5. Hopkins argues that

his reinstatement was immaterial as to whether he

had suffered an adverse employment action

Plaintiff's memoranda. Pg] |

Hopkins mischaracterizes the Courts Holding

First, the Court did not rule on whether Wright had

failed to accommodate Hopkins disability by

transferring him from his position as a delivery

-54-

driver to that of dishwasher because Hopkins

testimony revealed such a transfer never occurred.

Hopkins testified that he came into work

early on May 17, 2001 to talk to Wright to clarify if

she wanted him to become the full time dishwasher

or just work as the Dishwasher that day. Appendix

of exhibits in support of Defendants motion for

summary judgment (d/e 59) (Defendants Exhibits)

Exh. A Deposition of Glenn Hopkins, pg 146.

Hopkins testified that he never determined what

Wright intended.

q. After May 17, you're going to be the

dishwasher?

A. yes.

Q. Forever, or for one day, or for what?

A. | could never get an answer on that.

Q, Did you know, and do you know all the way up

til today, whether (Wright) wanted you to wash

dishes just on that one day (may 17 2001) or were

you going to become the permanent dishwasher

forever?

A. I have no clue to this day.

Id. Hopkins did not work on May 17, 2001 due to

his hand infection, and was fired the next day

before any job change could take place. Id. At 153.

Therefore to the extent that the Court did not rule

on Hopkins claim of employment discrimination,

based on Wrights alleged failure to accommodate

his disability by transferring him to the dishwasher

position, the Court now grants summary judgment

in favor of Defendants on it.

-55-

The Court did however evaluate whether

Hopkins had presented evidence sufficient to

support a prima facie cause of employment

discrimination based on his May 18 2001

discharge by Wright. Using the test set forth in

Dvorak v Mostardi Platt Associates, Inc. the Court

found that while Hopkins had established the first

two prongs of the test, Piersee’s immediate

reversal of Wrights discharge and reinstatement of

Hopkins as a delivery driver prevented him from

establishing that he had suffered an adverse

employment decision because of his disability.

Dvorak v Mostardi Platt Associates, Inc. 289 F.3d

479, 483 (7th Cir. 2002); see also August 20, 2004

order, pg 7. Hopkins points to no precedent that

ihe Court made a manifest error of law in so

finding, and he presents no undiscovered material

facts to cause reconsideration of the Courts

holding. Therefore Hopkins petitions on_ this

ground are denied.

Hopkins also takes issue with the Courts

finding that his severely burned hand, which

became infected after he washed dishes at work on

May 12, 2001, was not an ADA qualified disability

that Godfather was required to accommodate.

August 20, 2004 Order, pgs 7-8. Hopkins claims

that the Courts holding essentially undermines the

purpose and intent of the ADA which intended to

restrain and deter potential violators from

exploiting the disabled by the use of coercion and

duress. (Plaintiff's Addendum, pg 11.)

-56-

Hopkins cites both the Supreme Courts

holdings in Chevron U.S.A Inc. v Echazabal and

Tennessee_v Lane, as_ well as the 9" Circuits

opinion in Kimbro_ v_ Atlantic Richfield Co, in

support of this conclusion. See Chevron U.S.A.

Inc. v Echazabal, 536 U.S. 73 (2002) Tennessee v

Lane _US. _ 124 S.Ct 1978 (2004); Kimbro v

Atlantic Richfield, 889 F.2d 869 (9" Cir. 1989).

(footnote. The Court notes that although Mr.

Shaffer , Hopkins’s counsel, refers to the supreme

court decisions in Chevron U.S.A. Inc. vy

Echazabal, and Tennessee v Lane, he cites the

court to the ninth and sixth circuits opinions

respectively, instead of to the supreme Court

opinions (reversing in Echazabal, and affirming in

Lane.) Later in his pleading he commits the same

error by citing the Fourth circuits earlier opinion in

Edelman _v Lynchburg college instead of to the

supreme Court’s subsequent decision reversing the

circuit court. Plaintiffs addendum, pgs 4, 13.

Unfortunately, this is not the extent of Mr.

Shaffer’s carelessness. Mr. Shaffer also submitted

an incomplete citation to Kimbro v_ Atlantic

Richfield Co. and set no citation at all to Criado v

IBM Corp. Plaintiff's Addendum pg4. Through out

his memoranda, Mr Shaffer also failed to pin cite

direct quotes on numerous occasions. Id at 6, 8 14.

In the future Mr. Shaffer 1s directed to exercise due

care when preparing pleadings to be filed in this

Court.)

2%

None of the aforementioned case show that this

Court erred in finding that Hopkins severely

burned hand did not constitute an ADA qualified

Disability. Kimbro concerned a Washington state

anti discrimination law, not the ADA, and is

inapplicable to Hopkins Case. Echazabal upheld an

equal employment opportunity commission

(EEOC) regulation that allows an employer to

refuse to hire an individuals whose health would

be endangered by the conditions of employment.

This affirmative defense to an ADA-based

discriminatory hiring suit is not at issue here.

Finally Lane upheld a suit against the state of

Tennessee under the 6" amendments guarantee of

right of access to the Courts pursuant to title II of

the ADA. Hopkins claim ts rooted in Title I, not

Title II of the ADA, does not concern access to the

Courts, and is against a Corporation, not the

State. Accordingly, none of the aforementioned

cases address the point of law Hopkins contests.

Further, Hopkins claim of duress, advance for

the first time in his addendum ts without merit.

(Footnote: Hopkins testified that Store manager

Beth Wright required him to wash dishes on Mav

12, 2001 despite his injury because the regular

dishwasher had been fired. Defendants Exhibits,

ExhA, Deposition of Glenn Hopkins., pgs 149-51.

Hopkins mentions this event in his own motion for

Summary judgment, and response to Defendants

Motion for Summary Judgment, (d/e 61) However,

Hopkins never claimed that Wrights order placed

him under duress.)

-58-

Hopkins now contends that he was placed under

duress when Wright ordered him to wash dishes

based on the fact that as disabled person, he has

fewer opportunities for employment and thus was

compelled to comply with his supervisors order to

wash dishes at work on May 12, 2001 in order to

keep his job, thereby incurring the infection that

kept him out of work from May 17 2001 to June

11, 2001. Plaintiffs addendum, pg 12.

This tardy argument is not based on newly

discovered evidence, not is it supported by case

law demonstrating that this Court made an error in

of law or fact in August 20, 2004 Order,

accordingly it is not a basis for reconsidering the

Courts order.

Even if the Court considered Hopkins duress

argument, However it is not supported by his

deposition testimony. Hopkins never testified that

he contested Wrights order to wash dishes on May

12, 2001. In the following statements regarding

that evening, Hopkins comments that he did help

out with the dishes:

A: On May 12 2001, because of the Dishwasher

getting canned, | was required by Wright to wash

dishes, she says Take the bandages off and then

wash your hands after youre done, there shouldn't

be no problem.

OQ: Ok.

A: Dummy Me, | kept going, | did help out with the

dishes, and I have no feeling in my fingers

QO. Ok.

-59-

A. So 1 didn't feel the rot starting until a couple of

days later when they started bleeding...

KK

A: Well, my hand started bleeding, and I went in to

talk—to tell Wright on the 17" you know, that was

the night | was supposed to start doing the dishes

full time

QO; Right.

A: She never talked to me about the dishes, I was

willing to help out on doing the dishes for one or

two nights and get this matter straightened out, but

because my hands were bleeding, 1 Had to seek

medical care.

Defendants Exhibits, Exh A, Hopkins Deposition,

Tr, pgs 150-51 (emphasis Added)

In addition Hopkins testified that he had refused

Wrights Work orders on at least one earlier

occasion with no fear of reprisal, and suffered no

adverse employment action as a result. Hopkins

testified:

A; And I didn’t hesitate to Try, Like when Wright

wanted me to scrub the floors. I did that, it took me

a while, but | did that. You know it hurt a little bit

but it needed done, but when she wanted to wash

the walls, I told her no, I can't do that.

Q: When was that?

A; It was about late March.

Q: Ok, and how did She react?

A: She goes why. | said well I got brain damage as

part of my disability, and | got zero balance.

-60-

You get me up on that ladder I’m going to fall off,

an I’m going to get hurt, and youre going to be

unhappy, and the boss—Your boss 1s going to be.

And she says never mind.

Q: So when you told her you couldn’t get up on

the ladder to wash the walls, she said don’t do it?

A; right, Right, She saw my Point, oh no never

mind.

Q; So she was okay with you not doing it?

A. Uh-huh.

Id at 143. Accordingly, even if the Court was to

consider Hopkins Duress argument, the Evidence

submitted on the parties motions for summary

judgment does not support it. Therefore Hopkins

petition as to Count I are denied.

Il COUNT Il, RETALITATION

A Hopkins IDHR Charge.

In support of his claim that Wright retaliated

against him by reducing his work hours, Hopkins

submitted exhibit J, a document entitled Complaint

of Discrimination and unfair labor practices in

violation of the Americans with Disabilities Act

Exhibit J is a copy of a draft letter by Hopkins, it ts

unsigned, and dated June 24, 2001. It ts not

Hopkins IDHR charge, but rather a letter of

complaint. From its face , it 1s unclear whether it

was ever sent, and if it was sent, to whom it was

sent. Its closing line states I wall file this complaint

as of June 25, 2001. If Godfathers agrees to a

settlement then | will move to dismiss the charges.

-6|-

On Hopkins Motion for Summary Judgment,

the Court excluded Exhibit J from consideration,

noting On motion for summary judgment however

supporting affidavits must be sworn or certified.

Fed. R. Civ. P. 56(e). Hopkins complaint to the

IDHR ts not a sworn statement. (August 20, 2004

Order.) Hopkins contends that this was an error of

law, and that the Court should have considered

Exhibit J. In support of this position, Hopkins

refers the Court to the Supreme Courts Opinion in

Edelman _v_ Lynchburg College. Edelman _v

Lynchburg College 535 U.S. 106 (2002) Hopkins

contends that under Edelman, Exhibit J was

incorporated into his sworn IDHR charge and

therefore should have been considered by the

Court.(Foot note. Hopkins IDHR charge was

attached to his Complaint,(d/e4) it is a signed and

notarized statement executed on July 17, 2001.)

Hopkins misreads Edelman. In Edelman, the

Supreme Court considered the purely jurisdictional

question of whether a complainants charge,

submitted to the EEOC under Oath but filed out of

time could be related back to an earlier unsworn

complaint filed within the statutory period. The

Supreme Court found the earlier complaint saved

his charge from being time barred. Edelman does

not compel this Court to consider Plaintiffs Exhibit

J as Plaintiff contests. Hopkins did attach his

IDHR charge to his complaint, which summarized

the allegations set forth in Exhibit J, and was

considered by the Court. Only two allegations set

-62-

forth in Hopkins IDHR charge support his motion

for summary judgment on his retaliation claim.

11.B.2. After I complained about the unlawful

discrimination, my hours were gradually reduced

(between 6/11/01 until 6/25/01) from 17 hours to 8

hours weekly.

IV.b.2 I was constructively discharged on 6/25/01

the Discriminatory actions leading to my departure

were primarily the reduction of my hours and the

fact another driver was given my_ previously

assigned hours.

Complaint, Charge of Discrimination, pgs 2.3

Hopkins contention in II.B.2 1s the subject of

the payroll audit records submitted by Godfathers

and was considered by the Court. August 20, 2004

Order, pg 15. Hopkins contention in [V.B.2 1s an

unsupported allegation contradicted by evidence

produced by the Defendants, namely the payroll

audits. Accordingly Hopkins had a burden to

point to specific facts showing a genuine issue for

trial. “when a motion for summary Judgment ts

made and supported as provided under this rule, an

adverse party may not rest upon the mere

allegations or denials of the adverse parties

pleadings, but the adverse parties response, by

affidavits or as otherwise provided under this rule

must set for specific facts showing there is a

genuine issue for trial. If the adverse party does not

-63-

so respond, summary judgment if appropriate shall

be entered against the adverse party.” Federal rule

of Civil procedure 56(e)

Godfathers payroll audits represented evidence

that Hopkins hours had been previously reduced to

comparably low levels during the non retaliatory

period, between January 22, 2001, through May 6,

2001, and that Hopkins was assigned the greatest

number of hours if the part time delivery drivers

then working for Godfathers in the allegedly

retaliatory period, June 11, 2001 through June 24,

2001. (August 20, 2004 Order, pg 15-16.)

In response to this evidence, Hopkins could not

rest on the unspecific allegations in his charge

alone. There are no grounds to conclude the Court

was in error of law or fact. Therefore Hopkins

petitions are denied on this ground

B. EVIDNCE REGARDING FLUNCTUATION

IN WORK HOURS

Hopkins claims his hours fluctuated in the non

retaliatory period January 22, 2001 through May 6,

2001 due to moving his Home, March 29-30, the

Easter holidays, birthdays, (March 4,) and

Anniversary (April 3), none of the reductions were

job related. Plaintiffs memoranda, pg 15. Under

the rules 59(e) and 60(b)(2) a petitioner may only

petition for the admission of new evidence

Hopkins tardy attempt to explain why his work

hours fluctuated during the nonretalitory period ts

not newly discovered evidence. Accordingly, the

Court will not consider it.

-64-

ll. TIMING OF THIS COURTS AUGUST 20

2004 ORDER

Hopkins final claim is similarly unavailing. He

contends:

“Plaintiff was preparing file a rebuttle to this

Defendants reply that filed August 16, 2004 when

Plaintiff received the order of final judgment

closing these proceedings. It is apparent that this

Court could not have and did not consider all the

briefs and issues before this Court, and based on

this Court Order, this Court has missed fact that

could or would have led this Court to a different

conclusion if taken in the proper context.”

Without leave of Court, Hopkins had no right to

file a rebuttle to the Defendants Reply to Plaintiffs

response to Defendants Motion for Summary

Judgment. (d/e 63). Local Rule 7.1 (B)(1) (D)(4).

Further, without leave from th Court, Hopkins had

no right te file his supplement to Plaintiffs

Addendum: and Reply to Defendanis (sic)

Response (@/e 70) Hopkins has no grounds for

claiming that this Court could not have and did not

consider all the briefs and issues before this court

Plaintiffs memoranda, pg 17

Therefore Hopkins petitions are denied on this

ground

Conclusion. Therefore for the aforementioned

reasons, Plaintiffs rule 60 (b)(6) Petition for relief

from summary judgment (d/e 66) and Plaintiffs

rule 60 (b)(6) Petition for relief from summary

judgment (d/e 67) are denied. This case is closed.

-65-

Appendix C

FROM THE SEVENTH CIRCUIT COURT OF

APPEALS USAP7, NO. 04-4172 July 13, 2005.

ORDER

In this Appeal, Glenn Joseph Hopkins claims that

the district court abused it’s discretion in denying

his motion for relief from summary judgment with

respect to his claims of discrimination and

retaliation under the Americans with Disabilities

Act(ADA) We Affirm*

|

Glen Hopkins began his employment as a

part-time delivery driver for Godfathers Pizza on

January 19, 2001. At the time, Godfather’s Pizza

was aware that Hopkins has a neuromuscular

condition that limits his ability to lift and bend, and

Godfathers Pizza indicated that it would

accommodate his Disability. In addition to

delivering Pizzas, Hopkins also was required to

perform a variety of other tasks includ’::g mopping

and scrubbing floors**, performing general

cleaning, washing dishes**, folding boxes, and

helping with the trash. If Hopkins was unable to

perform any assigned task due to his disability he

generally sought, and Godfathers Pizza Generally

approved-an appropriate accommodation. For

example, he was excused from taking out the trash

when it involved heavy lifting, and he was excused

from cleaning the walls when it required balancing

on a ladder. Hopkins had no complaints about his

-66-

work environment through May 10, 2001. On

May 10, 2001, Hopkins severely burned his left

hand in a non-work related incident. He was

excused from his dishwashing duties** on May

10-11 due to his injury, but was instructed by the

Store manager Beth Wright to wash dishes on May

12. Wright again demanded that Hopkins wash

dishes on May 17, 2001. The record is unclear as

to whether Hopkins would be a dishwasher only on

that date or if Wright intended the switch to be

permanent. Hopkins was concerned that his now

infected hand would not allow him to physically

manage a permanent transfer to the dishwasher

position* Hopkins unsuccessfully attempted to

discuss his concern about the dishwasher position

with Wright on May 17, 2001 .**

While washing dishes on May 17, Hopkins

hand began to bleed.* An assistant manager

advised Hopkins to leave work and seek medical

attention* On May 18, Hopkins returned with a

doctors note. However, Wright informed him that

he was fired for abandoning his job the previous

day. Later that day, Hopkins protested his

termination to Therese Piersee, Director of Human

resources at Godfathers Corporate office. Piersee

immediately overruled Wright's decision and

instructed Hopkins to return to work as a delivery

driver as soon as he received his doctors clearance

to work again.*

By June 6, 2001, Hopkins hand had sufficiently

healed that his doctor cleared him to work.

-66-

Hopkins returned to work on June 11, and worked

17.57 hours for the week of June 11 to June 17,

2001. He worked 9.05 hours for the week of June

18 to June 24, 2001. Hopkins asserts that he was

only scheduled to work eight hours for the week of

June 25 to July |, 2001. Prior to his injury,

Hopkins work hours had fluctuated from a low of

7.18 during the week of March 26, to April 2001,

to a high of 24.87 hours for the week of February

26 to March 4, 2001. Overall, he averaged 18.47

hours per week. Godfathers explained _ that

Hopkins work hours fluctuated based on store

sales projections***

Hopkins complained to Wright about the

reduction in is scheduled hours and told her he

needed to work more hours to pay off an

outstanding traffic ticket or risk losing his drivers

license. When he complained to the Godfathers

Pizza Human resources department, he was

informed work schedules were within the

discretion of the Store manager* Believing that he

would never work a sufficient number of hours at

Godfathers Pizza, Hopkins submitted his voluntary

resignation to Piersee* on June 24, 2001. Hopkins

then sent a letter* of complaint to the Department

of Human Rights (IDHR) on June 25, 2001,

alleging that Godfathers Pizza had retaliated

against him for complaining about his working

conditions and his brief termination.* He filed a

formal charge on July 17, 2001.*

-67-

Hopkins initiated this present action in the United

States District Court of the Central District of

Illinois on August 13, 2002, alleging that

Godfathers Pizza discriminated against him based

on his physical disability and retaliated against him

for complaining about his working conditions in

violation of the Americans with Disabilities

act(ADA)* The District Court entered an order

on August 20, 2004 granting defendants motion for

summary judgment, and denied Hopkins cross

motion for summary judgment. On September 10,*

Hopkins filed a rule 60 (b)(6) motion requesting

relief from judgment. The District Court entered an

order denying this motion on November 16, 2004.

Hopkins now appeals the district Courts denial of

his motion requesting relief from summary

judgment.*

I]

The District Court appeared to be unsure whether

Hopkins Motion for relief should be analyzed

under Federal Rule of procedure 59(e) or 60(b).

Both rules provide for relief from judgment on

various grounds, but the more lenient rule 59(e)

applies only to motions filed within ten days of the

judgment at issue. See Uniteu States v Deutsch,

981 F.2d 299, 301 (7" Cir. 1992). Hopkins initial

motion for relief was filed within the 10 day

period, but it was not signed until the eleventh day.

However nothing turns on the specific choice of

rule.

-68-

We review the District courts decision for abuse of

discretion-and Hopkins claim for relief must fail

under either rule. See Romo v Gulf Stream Coach

Inc 250 F.3d 1119, 1121 n.3 (7 Circuit, 2001)

Footnote- We note at the outset that Hopkins does

not include Beth Wright as an_ individual

defendant-Appellee in his brief, nor does he

contest the District Court ruling that Wright, as an

individual supervisor, cannot be liable for

discrimination or retaliation under the ADA. But

whether or not Hopkins intended to exclude

Wright from the current appeal we pause to note

that the district courts ruling on this was correct,

silk v City of Chicago, 194 F.3d 788, 797 n.5 (7""

Circuit 1999) and we will consider Godfathers

Pizza as the sole Appellee .

Hopkins appeal alleges that the district Court

abused its discretion when it held he had not made

out a prima facie case of discrimination or

retaliation under the ADA. To sustain either claim,

Hopkins must demonstrate that he has suffered an

adverse employment action. See Dvorak v

Mostardi Platt Assocs. Inc, 289 F.3d 479, 483 (7""

Circuit, 2002). (ADA Discrimination claim) Pugh

v City of Attica, Ind. 359 F.3d 619, 630 n.9(7"

Circuit 2001) (ADA Retaliation Claim). An

adverse employment action 1s broadly defined 1s a

materially adverse change in the terms and

conditions of Employment, Cerros v Steel Techs.

inc, 288 F.3d 1040, 1044 (7" Circuit 2002).

However Hopkins momentary termination and

immediate reinstatement on May 18 2001 did not

-69-

alter the terms and _ conditions of his

employment** for ADA purposes.

In fact the internal corporate appeals process

functioned exactly as it was supposed to, reversing

Hopkins termination on the same day it occurred**

Likewise we cannot say the District Court abused

its discretion in determining that the reduction of

Hopkins hours was not an adverse employment

action. Throughout the period covered by this

appeal, Hopkins hours of work were within the

range of hours he typically worked in a week. In

addition, he was still scheduled to work more

hours than any other part time delivery driver

when he submitted his voluntary resignation. The

district court did not abuse its discretion in

determining that Hopkins has suffered no adverse

employment action, and on this basis alone his

discrimination and retaliation claims must fail.

Further, any discrimination claim based on

Hopkins injured hand*** fails for the additional

reason that his hand injury does not qualify as a

disability under the ADA. An impairment only

rises to the level of a disability when it’s impact ts

permanent or long term, in re Toyota Motor mfg

ky, Inc v Williams, 534 U.S. 184, 198 (2002).

Intermittent episodic impairments are not

disabilities the standard example being a broken

leg. Vande v State of Wis. Dept. of Admin, 44

F.3d 538, 544, (7" Circuit 1995). Since Hopkins

injured hand healed sufficiently within a month its

impact was neither permanent nor long term. The

District court did not abuse its discretion by

-70-

concluding that these injuries do not constitute a

disability under the ADA

Hopkins attempts to revive his claims by

asserting he was under duress when he agreed to

wash dishes on May 12, 2001, and that his

resulting infected hand, absence from work, and

lost pay constitute an adverse employment action.*

This is a dubious argument even on its own terms,

but in any event Hopkins has waived it by not

raising it before the District Court. See Anderson v

Flexel Inc. 47 F.3d 243, 247 (7" Circuit, 1995)

(Post judgment motions cannot be used to raise

argument or legal theories that could have been

and should have been brought before judgment,)

Bordelon v Chicago Sch. Reform Bd of Trs, 233

F.3d 524, 529 (7" Circuit 2000) (Rule 59(e) does

not allow a party to introduce new evidence or

advance arguments that could and should have

been presented to the District Court prior to the

judgment.)

Hopkins also contends that the District Court

abused its discretion* by excluding his letter to the

IDHR as evidence supporting his retaliation claim.

The District Court excluded the IDHR letter

because it failed to satisfy the rule _56(e)

requirement that supporting affidavits be sworn or

certified. Fed. R. Civ. P. 56(e); Scott v Edinburg,

346 F.3d 752, 760 n.7 (7" Circuit, 2003). Hopkins

himself acknowledges that the letter to the IDHR

was neither sworn nor certified, and thus the

District Courts exclusion of the letter was not an

abuse of discretion.

Hi.

Finally, Hopkins claims that the District Court‘s

violated his due process rights when it failed to

appoint Counsel to represent him. Hopkins asserts

that appointed counsel was necessary because of

his limitations resulting from a mental impairment.

However this due process claim was not presented

to the district court. We will not consider issues

and arguments raised for the first time on appeal.

Republic Tobacco Co v N. Atl. Trading Co. 381

F.3d 717, 728 (7" Circuit 2004).

II]

For the foregoing reasons, we AFFIRM the

District Courts denial of Hopkins motion for relief

from judgment.

eee

FROM THE SEVENTH CIRCUIT COURT OF

APPEALS USAP7, NO. 04-4172

Denial of Petition to reconsider En Banc

Before Judges Richard D. Cudahy, Terence T.

Evens, Ann Claire Williams, Justices of the 7"

Circuit Court of Appeals.

October 19, 2005

ORDER

On Consideration of the petition of Plaintiff

Appellant for rehearing with suggestion for

rehearing en banc filed by Counsel July 26, 2005,

all of the judges of the original panel have voted to

deny rehearing, and none of the active judges on

the Court have voted for a rehearing en banc.

Therefore the Petition for Rehearing is DENIED