Loberg v. Gordon Flesch Co., Inc.

308 F. Supp. 2d 890, 15 Am. Disabilities Cas. (BNA) 697, 2004 U.S. Dist. LEXIS 3808, 2004 WL 527907
CourtDistrict Court, N.D. Illinois
DecidedMarch 10, 2004
Docket03 C 2457
StatusPublished

This text of 308 F. Supp. 2d 890 (Loberg v. Gordon Flesch Co., Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Loberg v. Gordon Flesch Co., Inc., 308 F. Supp. 2d 890, 15 Am. Disabilities Cas. (BNA) 697, 2004 U.S. Dist. LEXIS 3808, 2004 WL 527907 (N.D. Ill. 2004).

Opinion

MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

Plaintiff Lennie Loberg was employed as a field technician by defendant Gordon Flesch Company, Inc. (“Gordon Flesch”) from June 1987 until his termination on April 13, 2003. On November 24, 1997, Mr. Loberg sustained a work-related injury that resulted in cellulitis of his right arm. Mr. Loberg subsequently developed lymphedema and pain in his right middle finger, diagnosed as Raynaud’s phenomenon. In November 2000, Mr. Loberg filed a claim for worker’s compensation with the Industrial Commission. Mr. Loberg claims that his damaged lymphatic system constitutes a disability under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. Mr. Loberg alleges that Gordon Flesch failed to accommodate his disability (Count I); refused to train or rehire him because of his disability (Counts II — IV); wrongfully terminated him in retaliation for filing a worker’s compensation claim (Counts V and VI); and intentionally and negligently inflicted emotional distress on him (Counts VII and VIII). Gordon Flesch moves for summary judgment on all counts. The motion is granted in part and denied in part.

I.

Summary judgment is appropriate where the record and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lexington Ins. Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir.1999); Fed.R.Civ.P. 56(c). I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). While I construe the facts in the most favorable light to Mr. Loberg, his failure to properly respond to Gordon Fleseh’s statement of undisputed facts renders all those facts admitted. Schulz v. Serfilco, Ltd., 965 F.2d 516, 518-19 (7th Cir.1992).

Counts I-IV of Mr. Loberg’s complaint allege violations of the ADA, including failure to accommodate his disability and failure to rehire or train him. Gordon Flesch argues that summary judgment should be granted on these claims because Mr. Lo-berg’s impairment does not meet the defi *892 nition of “disability” under the ADA. -A “disability” under the ADA is:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). Mr. Loberg attempts to proceed under all three possibilities.

While Gordon Flesch concedes that Mr. Loberg has an impairment, Mr. Lo-berg must also show that his impairment “limits a major life activity” to qualify as a disability. Toyota Motor Manuf. Kentucky, Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). The limitation must also be substantial. Id. Further, the limitations must render Mr. Loberg “unable to perform the variety of tasks central to most people’s daily lives,” not merely affect his ability to perform tasks specifically associated with his job. Id. at 200-01, 122 S.Ct. 681. Mr. Loberg states that he must take especial care when performing tasks that may result in nicks or cuts to his hands and arms, such as gardening, repair work and maintenance at home, cooking, and repair work on the job. However, Mr. Loberg admits that his impairment does not prevent him from performing these tasks, but merely makes them unpleasant or more difficult. While this limitation on his activities is unfortunate, it does not rise to the level of a disability under the ADA.

Mr. Loberg argues that he may also proceed under the second option, that of having a “record of such an impairment.” 42 U.S.C. § 12102(2)(B). However, this argument fails for the same reasons stated above. Mr. Loberg must show “not merely a diagnosis, but a record reflecting the kind of impairment that would impose a substantial limitation on one or more of [his] major life activities.” Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 510 n. 7 (7th Cir.1998). Mr. Loberg presents no such evidence. His evidence relating to a brief hospitalization and two letters from his doctor that relate his need to avoid nicks and cuts are insufficient. See, e.g., Ogborn v. United Food and Commercial Workers Union, 305 F.3d 763, 767-68 (7th Cir.2002).

Finally, Mr. Loberg argues that he may proceed under the third option, “being regarded as having such an impairment.” 42 U.S.C. § 12102(2)(C). This option requires that the employer regard the plaintiffs impairment as generally limiting his ability to work. Davidson, 133 F.3d at 510. The limitation must again be substantial, as required under the first option. Id. at 511. The record does reflect that Gordon Flesch regarded Mr. Loberg as having an impairment. The remainder of the evidence is disputed. Gordon Flesch is entitled to summary judgment on this claim. Gordon Fleseh’s motion for summary judgment with respect to Counts IIV is GRANTED.

II.

Counts V and VII allege that Mr. Loberg was terminated in retaliation for filing a Worker’s Compensation claim for an injury sustained on the job. To recover damages for such a claim, Mr. Loberg must show (1) that he was employed by Gordon Flesch, (2) that he exercised a right granted by the Workers’ Compensation Act, (3) that he was terminated, and (4) that his termination was causally related to the exercise of his rights. Clemons v. Mechanical Devices Co., 184 Ill.2d 328, 235 Ill.Dec. 54, 704 N.E.2d 403, 406 (1998). Gordon Flesch does not contest the first three elements, but argues that Mr. Loberg’s termination was not causally related to his Workers’ Compensation claim. In *893 stead, Gordon Flesch claims that Mr. Lo-berg was terminated because of a decline in available work that accommodated Mr. Loberg’s impairment and because of a general hiring freeze and reduction in force.

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Related

Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Barbara Davidson v. Midelfort Clinic, Ltd.
133 F.3d 499 (Seventh Circuit, 1998)
Clemons v. Mechanical Devices Co.
704 N.E.2d 403 (Illinois Supreme Court, 1998)
Welsh v. Commonwealth Edison Co.
713 N.E.2d 679 (Appellate Court of Illinois, 1999)
Welsh v. Commonwealth Edison Co.
306 Ill. App. 3d 148 (Appellate Court of Illinois, 1999)

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308 F. Supp. 2d 890, 15 Am. Disabilities Cas. (BNA) 697, 2004 U.S. Dist. LEXIS 3808, 2004 WL 527907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loberg-v-gordon-flesch-co-inc-ilnd-2004.