John P. Malabarba v. Chicago Tribune Company

149 F.3d 690, 8 Am. Disabilities Cas. (BNA) 1505, 1998 U.S. App. LEXIS 16777, 1998 WL 407165
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 22, 1998
Docket97-2707
StatusPublished
Cited by69 cases

This text of 149 F.3d 690 (John P. Malabarba v. Chicago Tribune Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John P. Malabarba v. Chicago Tribune Company, 149 F.3d 690, 8 Am. Disabilities Cas. (BNA) 1505, 1998 U.S. App. LEXIS 16777, 1998 WL 407165 (7th Cir. 1998).

Opinion

COFFEY, Circuit Judge.

The plaintiff-appellant, John Malabarba, appeals from the district court’s entry of summary judgment in favor of the defendant-appellee, Chicago Tribune Company (“Tribune”), on his claim that the Tribune failed to reasonably accommodate his disability and terminated his employment, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Malabar-ba contends that the trial judge erred in finding that he was not a “qualified individual with a disability” within the meaning of the ADA, that he-was provided with reasonable accommodations to perform his job, and that he was not discharged because of his disability. We affirm.

I. BACKGROUND

There is an old adage among lawyers that, when the law is not on your side, you should attempt to confuse the court or jury with your spin on the facts. When one engages in this practice on appeal, it regrettably makes the court’s task of resolving disputes all the more time-consuming and difficult. Malabarba has submitted a very lengthy recitation of his edited version of *693 the facts in this case. We are now called upon to do the work of distinguishing the undisputed facts from those which are disputed in reviewing the grant of summary judgment. Unfortunately, Malabarba’s Local Rule 12 response to the Tribune’s statement of uncontested facts falls short in flagging the allegations with which he agrees versus those he disputes. For this reason, the Tribune filed a motion in the district court to strike Malabarba’s Rule 12(N) statement. The trial judge denied the Tribune’s motion, notwithstanding her belief that “the court would be justified in granting [it]” because, among other reasons, “Malabarba is argumentative and unresponsive [and] ... goes on for pages making factual assertions and legal arguments that do not contradict the Tribune’s statements.” See Guzzo v. Northeast Illinois Regional Railroad Corp., No. 94-C5813, 1996 WL 131730, at *1 (N.D.Ill. March 15, 1996) (A Rule 12 statement “must be limited to a concise statement of uncontested facts. Opinion, suggested inferences, legal arguments and conclusions” are improper.); Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994) (explaining that “district courts are not obliged in our adversary system to scour the record looking for factual disputes.... ”). The court did find that, because Malabarba failed to deny a number of the Tribune’s allegations, he in effect admitted them. See Bourne Co. v. Hunter Country Club, Inc., 990 F.2d 934, 938 (7th Cir.1993) (district court correctly held that defendant admitted facts in Rule 12(m) statement by failing to deny them). The court also rejected several of Malabar-ba’s factual responses, ruling that they were unsupported in the record. Malabarba now attempts to reargue his opposition to certain facts that the district judge concluded were admitted, and restates other facts as if they were undisputed, even though the judge found them to have been without a basis in the record. Local Rule 12 does not lose its efficacy once a case moves from the trial arena to the appellate stage of litigation; we, too, “endorse[ ] the exacting obligation [Rule 12] ... impose[s] on a party contesting summary judgment to highlight which factual averments are in conflict.” Waldridge, 24 F.3d at 921-22 (emphasis added). That having been said, we shall limit the ensuing discussion to those facts which the parties’ Rule 12 statements reflect are clearly undisputed and are supported in the record.

The Chicago Tribune, a Delaware corporation with its principal place of business in Chicago, Illinois, prints and distributes a daily newspaper. In 1972, the Tribune hired Malabarba as a mailer, and he worked in that capacity until July of 1985, when he “walked out” during a labor strike. Five years later, in August 1990, Malabarba was re-hired by the Tribune to work in its packaging department as a packager, 1 a position which, according to both parties, is one of the most physically demanding within the company. Indeed, the packager job “[r]equires physical dexterity to lift and move material,” the ability “to stand for long periods of time[,] ... to lift or pile newspaper products that vary in weight from five to thirty-five pounds or more,” and “to help remove paper jams in conveyors at various height levels which includes climbing on ladders.” All packagers are assigned to one of two “teams” within the packaging department-press support or inserting machine support. 2 Every packager on each team, in turn, rotates through the various duties attendant to the press or inserting machine. The required physical skills for working on either team reflect those set forth in the general packager job description, quoted above. Packagers also periodically fill in as needed for the packaging department control room operator (i.e., whenever he or she breaks for lunch, is on vacation or sick leave, etc.); this is considered to be sedentary, “light-duty” work. 3

*694 On April 28, 1991, approximately eight months after going back to work at the Tribune, Malabarba injured his back while attempting to remove newspaper bundles from a printing press. As a result of this injury, he took a leave of absence until September of 1991, when Dr. Michael Schafer, Malabarba’s orthopedic surgeon, and Dr. John Mar-quardt, the Tribune’s medical director, both cleared him to return to his packager position without physical restriction. Then, on April 27,1992, Malabarba once again injured his back while piling bundles coming off the press, and was once again granted a leave of absence. 4 Doctors Marquardt and Schafer released him to work in September 1992, but this time placed limitations on the types of tasks he could perform — he was prohibited from standing for over thirty minutes without a break, bending at the waist, twisting his torso, or lifting anything weighing more than ten pounds. Malabarba admits that these restrictions on his physical activity prevented him from working on the inserting machines and presses. And, in fact, Dr. Marquardt instructed Malabarba that he was to confíne his duties to helping out in the control room. 5

Upon Malabarba’s return to the packaging department in September of 1992, he was assigned to assist the second-shift control room operator, Minnie Hayes. Hayes took disability leave beginning in November 1992, at which time Malabarba covered for her on a full-time basis. When Hayes came back to work the following March, Malabarba helped out in the control room only occasionally. With little left for Malabarba to do, Jerry Quarnstrom, the then second-shift operations manager, made up a list of miscellaneous “light-duty” tasks around the packaging department and assigned them to Malabarba. 6

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149 F.3d 690, 8 Am. Disabilities Cas. (BNA) 1505, 1998 U.S. App. LEXIS 16777, 1998 WL 407165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-p-malabarba-v-chicago-tribune-company-ca7-1998.