MEMORANDUM OPINION AND ORDER
In 2009, Jose Perez was injured at his job as a “hand winder” at Transformer Manufacturers, Inc. (“TMI”) in Norridge, Illinois. Several months later, he was terminated. Perez now brings this action against TMI, alleging disability discrimination and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (ADA), age discrimination and retaliation under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (ADEA), and retaliatory discharge under Illinois common law. TMI has moved for summary judgment and, for the
I. BACKGROUND
TMI is an Illinois corporation located at 7051 W. Wilson Avenue in Norridge, Illinois. TMI’s Facts ¶ 4. The company is a manufacturer and assembler of appliance-type electrical transformers and magnetic products used by original equipment manufacturers in various products. Id. ¶¶ 4, 6. TMI had 26 employees in 2009 and 2010; 10 employees worked in management, sales, or engineering, and 16 employees, Perez included, worked in production. Id. ¶ 5. In June of 2009, Perez was a “hand winder” for TMI. Id. ¶ 9. A hand winder’s work is arduous. It includes winding wire from a spool that weighs between 10 and 450 pounds onto a tube through a winding machine and then manually hammering the wire into place. Id. ¶ 13.
On June 23, 2009, Perez suffered an injury to his right hand while working as a hand winder. Id. ¶ 10. He was 60 years old at the time. Id. ¶ 11. Perez returned to work the same day, but with restrictions imposed by his physician. Id. ¶ 12. Perez could not lift more than five pounds with his right hand, and was warned against using his right hand to grip. Id. ¶ 12. Perez stated at his deposition that because of the restrictions, “practically, I couldn’t do any winding at all anymore.” Id. ¶ 16. When Perez presented the restrictions to his supervisor, Sergio Ortiz, Perez alleges that Ortiz looked at him “bad or ugly.” Id. ¶ 48. TMI assigned Perez some minor tasks during the first few days after he returned to work. Id. ¶ 18. Perez then left for vacation for four weeks between July 3 and August 3, 2009. Id. ¶¶ 20, 23.
Over time, Perez’s physicians adjusted the restrictions. On July 27, 2009, Perez was released to return to work subject to
TMI continued to pay Perez his full salary, even though he was no longer performing the duties of a hand winder. TMI’s Facts ¶¶ 19, 23, 30. When Perez returned on August 3, 2009, he did not believe that he was capable of resuming his job as a hand winder and was still restricted to lifting no more than 20 pounds. Id. ¶¶ 21, 23; Perez’s 56.1 Resp. ¶ 23; Perez Dep. at 56:8-10. Perez alleges that when he showed Ortiz the work restriction, Ortiz responded by telling him to go to the stockroom and that he might as well just “pull on it” while he was there. Perez Dep. at 57:5-58:13. For the next few weeks, Perez alleges, he asked Ortiz for work and Ortiz responded that his job was winding and that if he was too old or too injured, “the door is over there.” TMI’s Facts ¶ 49.
The day Perez returned from vacation, he filed a claim for workers’ compensation benefits with the Illinois Workers’ Compensation Commission. Id. ¶ 22. The Commission sent a notice of the filing to TMI two days later. Id. On September 24, 2009, TMI’s workers’ compensation carrier informed TMI that Perez’s claim was denied based on the findings of a specialist that Perez’s continuing symptoms were due to a chronic condition and not to a work injury. Id. ¶ 26.
Five days later, on September 29, 2009, Ortiz sent Perez home. Perez’s 56.1 Resp. ¶ 27; TMI’s Facts ¶ 27. At this point, Perez was still physically unable to perform the duties of a hand winder. Perez’s 56.1 Resp. ¶ 29. Perez alleges that Ortiz— who was himself at least 61 years old at the time
Perez filed a charge of discrimination with the Illinois Department of Human Rights on October 13, 2009, alleging that TMI terminated his employment on September 29, 2009, because of his age and disability. TMI’s Facts ¶ 31. Meanwhile, TMI made short term disability payments to Perez from October 23, 2009 until Janu-ary 15, 2010. Id. ¶ 32. On December 14, 2009, TMI sent Perez a letter stating, “If it looks as if you are going to succeed [sic] your 13 weeks of short term disability, you
From June 23, 2009 to the present, Perez has been physically unable to perform all of the duties of a hand winder. TMI’s Facts ¶¶ 17, 21; 23, 29, 35; Perez’s 56.1 Resp. ¶¶ 16, 17, 19, 21, 23, 29, 35, 37. On July 28, 2010, Perez’s physician stated that Perez is permanently unable to lift more than 10 pounds or to use his right hand to grip, grasp, and pinch. TMI’s Facts ¶ 37. Because of his injury, Perez has not looked for employment since September 29, 2009. Id. ¶¶ 45-46.
II. ANALYSIS
Perez brings a seven-count amended complaint against TMI for: (1) failure to reasonably accommodate in violation of the ADA (Count I); (2) discharge on the basis of disability in violation of the ADA (Count II); (3) retaliation in violation of the ADA (Count III); discrimination in the terms and conditions of employment on the basis of age in violation of the ADEA (Count IV); discharge on the basis of age in violation of the ADEA (Count V); retaliation in violation of the ADEA (Count YI); and retaliatory discharge under Illinois common law (Count VII) (Dkt.19). TMI moves for summary judgment on all counts.
Summary judgment is appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. See Jajeh v. Cnty. of Cook,
A. Perez’s Disability Discrimination and Failure to Accommodate Claims (Counts I and II)
In Counts I and II, Perez alleges that TMI violated the ADA by failing to reasonably accommodate him following his surgery and by discharging him on the basis of his disability.
The ADA prohibits employers from discriminating against employees on the basis of disability. 42 U.S.C.
To avoid summary judgment on these claims, Perez must demonstrate a genuine issue of material fact as to (1) whether he is disabled, (2) whether he can perform the essential functions of the position, and (3) whether he suffered an adverse employment action because of his disability. See Povey v. City of Jeffersonville, Ind.,
1. The parties do not dispute that Perez is disabled.
For the purposes of TMI’s motion only, TMI does not dispute that Perez is an individual with a disability. See Cassimy v. Bd. of Educ. of the Rockford Pub. Sch., Dist. No. 205,
2. No reasonable jury could conclude that Perez is a qualified individual with a disability.
The parties dispute, however, whether Perez is a qualified individual with a disability under the ADA. 42 U.S.C. § 12112(b)(5)(A). The ADA defines a “qualified individual” as
an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this sub-chapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential ...
42 U.S.C. § 12111(8) (“Definitions”). The term “qualified” means that the individual
satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.
29 C.F.R. § 1630.2(m). In short, Perez must establish that he is able to perform the essential functions of the job, with or without reasonable accommodation. See Povey,
The parties agree that, since the time of his accident, Perez has not been able to perform at least some of the essential functions of the job of hand winder.
Perez argues, however, that TMI was required to reassign him to a “light duty” position. Perez’s Resp. (Dkt.38) at 1, 4. An employer violates the ADA only if a terminated employee can show that reasonable accommodations exist that would have enabled the employee to perform the essential functions of the position he holds or desires. See Garg v. Potter,
A reasonable accommodation may include reassignment to a vacant position under the ADA’s statutory language. 42 U.S.C. § 12111(9)(B). An employer may be required, for example, to reassign a disabled employee to a vacant position if the employee no longer can perform the essential functions of his current position. See Jackson,
The critical question for the viability of Perez’s ADA discrimination claims, then, is whether there was another position at TMI to which Perez reasonably could have been reassigned. It is the plaintiffs burden to show that a vacant position exists for which he was qualified. Jackson,
Perez has not met this burden. In response to TMI’s stated fact that “[f]rom June 23, 2009 through January 25, 2010, there were no vacant positions at TMI which Plaintiff could have performed within his physical restrictions,” Perez points to three former employees of TMI who, he asserts, were assigned to light duty jobs “for substantial periods of time despite their inability to perform their regular duties.”
Two other points bear noting on this issue. First, Perez does not even allege, much less adduce evidence that would show, that he ever asked to be reassigned to another position at TMI, much less one that would have constituted a demotion. See Hunt-Golliday v. Metro. Water Reclamation Dist.,
Given that Perez concedes that he could not perform the essential functions of a hand winder and having adduced no evidence at all that there were jobs at TMI to which he could have been reassigned and which he could have competently filled, Perez has not established a genuine dispute as to whether he is a qualified individual with a disability. Summary judgment denying his ADA discrimination claims is therefore appropriate.
B. Perez’s Age Discrimination Claims (Counts IV and V)
The Age Discrimination in Employment Act prohibits an employer from discriminating against an employee because of the employee’s age. 29 U.S.C. § 623(a)(1). To establish a violation of the ADEA, the plaintiff must show that age “actually motivated the adverse employment action,” Van Antwerp v. City of Peoria, Ill.,
Perez claims that TMI discriminated against him because of his age by failing to provide him with a reasonable leave of absence sufficient to allow him to recover from his injury (Count TV) and then terminating him (Count V). First Am. Compl. ¶¶ 27, 31. As to Count IV, the premise of the claim is apparently that, but for Perez’s age, TMI would have given him a longer period to recuperate from his injury before terminating him. Beyond the fact that Perez has adduced no evidence that Perez’s age entered into any decision-making process concerning the specific question of how long he would be permitted to remain on disability leave, Perez’s claim in Count IV is doomed by his concession that he remains unable to perform the duties of a hand winder. Perez’s 56.1 Resp. ¶ 35. Given that fact, it is plain that even if TMI had extended his leave of absence for several more years, Perez still would not have recovered sufficiently to resume his duties. That fact is also consistent with the undisputed conclusion of Perez’s physician on July 28, 2010, who determined that Perez “permanently is unable to lift more than 10 pounds or to use his right hand to grip, grasp, and pinch.” Id. ¶37. Thus, Perez has failed to establish that TMI’s alleged age discrimination caused him any harm at all with respect to the length of the convalescent period the company provided prior to termination. This presents a “remedies problem” that forecloses his claim in Count IV. See Bardon v. Zimmer, Inc.,.
As to Count V, the Court assumes that Perez is proceeding under the direct method of proof with circumstantial evidence to establish a discriminatory motive on the part of TMI. See Van Antwerp,
Perez has not shown that age “had a determinative influence,” Van Antwerp,
C. Perez’s ADA and ADEA Retaliation Claims (Counts III and VI)
Perez claims that TMI retaliated against him by, after he filed a charge of discrimination, fading to discuss reasonable accommodations . with Perez (ADA), failing to provide him with a sufficient leave of absence (ADEA), and then discharging him. First Am. Compl. ¶ 23.
The ADA prohibits an employer from retaliating against an employee who asserts his rights under the ADA to be free from discrimination. 42 U.S.C. § 12203(a) (“Prohibition against retaliation and coercion”). TMI is “forbidden from retaliating against” Perez “regardless of whether the initial claims of discrimination are meritless.” Povey,
To prove retaliation in violation of the ADA or the ADEA, Perez must show that he engaged in a statutorily protected activity, that he suffered a materially adverse action, and that the two are causally related. See Barton,
Perez can use either the direct or indirect method of proof to establish retaliation. Id. Although Perez does not identify which method he is using, the Court assumes it is the direct method since Perez does not allege, as required by the indirect method, that similarly situated employees were not subject to the same adverse action as him. Under the direct method, Perez can offer either direct evidence of intentional discrimination or a “convincing mosaic” of circumstantial evidence that “allows a jury to infer intentional discrimination by the decisionmaker.” Teruggi v. CIT Group/Capital Finance, Inc.,
The first two categories (statutorily protected activity and adverse employment action) are not at issue. The parties do not dispute that Perez filed a charge of discrimination with the Illinois Human Rights Commission, a statutorily protected activity, on October 13, 2009. TMI’s Facts ¶ 31; Perez’s 56.1 Resp. ¶ 31. The parties also do not dispute that Perez was terminated by TMI. TMI’s Facts ¶ 33; Perez’s 56.1 Resp. ¶ 43.
To the extent that Perez maintains that TMI terminated him on September 29, 2009 (see ¶ 43), that concession is fatal to a retaliation claim since he did not lodge his discrimination charge until two weeks later. As to the January 25, 2010 termination, Perez asserts that he was fired in retaliation for filing the charge of discrimination three months earlier. He stated at his deposition that he believed this was the reason for his termination “because I think so” and because it was “natural” that TMI would not appreciate an employee raising such a claim. TMI’s Facts ¶¶ 40, 41; Perez’s 56.1 Resp. ¶¶40, 41. Perez admits that no one at TMI told him that he was terminated because he had filed a charge of discrimination. Perez’s 56.1 Resp. ¶ 39. Yet he argues that comments by his supervisor, Sergio Ortiz—that he was “useless,” “too old,” “only getting in the way,” and that he could not return to work at TMI unless he was 100% recovered with no restrictions—also support his claim of retaliation. Perez’s Resp. at 8.
This Court finds that, reviewing Perez’s circumstantial evidence as a whole, Perez has not shown that there is a causal connection between the filing of his discrimination charge and his termination. See Hobgood,
Ortiz’s comments, on their own or in combination with their timing, are also not enough to show a causal connection between the discrimination charge Perez filed and his later termination. The comments do not refer, even obliquely, to the discrimination charge or any other complaint by Perez about his treatment. Further, Ortiz’s comments were isolated and do not show, directly or by inference, that TMI was motivated by retaliation for Perez’s discrimination filing. “[Isolated comments that are no more than stray remarks in the workplace are insufficient to establish that a particular decision was motivated by discriminatory animus,” unless the remark was made by the decision-maker and around the time of and in reference to the adverse employment action. Merillat v. Metal Spinners, Inc.,
D. Perez’s Retaliatory Discharge Claim Under Illinois Common Law (Count VII)
Perez’s final claim is that TMI terminated him in retaliation for filing a claim for workers’ compensation benefits. First Am. Compl. ¶ 39-42. Under Illinois law, it is unlawful to terminate an employee in retaliation for exercising his rights under the Illinois Workers’ Compensation Act, 820 ILCS 305/4(h). See Gordon v. FedEx Freight, Inc.,
Perez has not met this burden. He alleges that TMI “wrongfully discharged [him] in retaliation for his having filed a claim for workers compensation and in violation of this clearly mandated public policy of the State of Illinois.” First Am. Compl. ¶ 41. Beyond that conclusion, however, Perez offers no evidence to demonstrate that TMI was improperly motivated and discharged Perez “primarily” (or at all) in retaliation for his workers’ compensation claim. Gordon,
For the reasons set forth -above, TMI’s Motion for Summary Judgment is granted as to all counts and this case is terminated.
Notes
. The Court takes the following facts from the parties’ statements of material facts. See Defendant’s Local Rule 56.1(a)(3) Statement of Undisputed Material Facts in Support of Its Motion for Summary Judgment (Dkt.33) ("TMI's Facts”); Plaintiff's Local Rule 56.1(b)(3) Response to Defendant's Statement of Material Facts in Opposition to Motion for Summary Judgment (Dkt.39) (“Perez’s 56.1 Resp.”); Plaintiff's Local Rule 56.1(b)(3)(C) Statement of Additional Facts (Dkt.39) (“Perez’s Facts”); Defendant’s Local Rule 56.1(a)(3)(B) Reply to Plaintiff’s Statement of Additional Facts (Dkt.41) (Def.’s 56.1 Resp.).
. More specifically, a hand winder has the following responsibilities: (1) installing the arbor on the winding machine; (2) placing a tube on the arbor to allow the wire to form the transformer; (3) moving a wire spool weighing between 10 and 450 pounds from the stock room to the winder's machine; (4) placing the spool on the machine with rollers; (5) threading the wire through the machine with rollers so that the wire was prepared to be placed onto the tube; (6) using a foot pedal to move the wire from the spool to the tube; (7) guiding wire from the spool onto the tube; (8) tightening the wire on the tube by pulling it during the winding process; (9) using a hammer to shape the transformer during the winding; (10) removing the transformer from the tube by using a hammer; (11) removing insulation from the wire to expose copper to allow a weld; (12) welding a "lead” on to the transformer; and (13) placing the transformer on a cart for transportation to the next job. Id. ¶ 13.
.The deposition testimony of both Perez and Ortiz indicates that this vacation had nothing to do with his injury or inability to work but rather was previously scheduled. See Perez Dep. at 52:6-22; Ortiz Dep. at 51:14-15.
. TMI asserts that Ortiz was born on November 18, 1945, but Perez maintains that Ortiz told him that he was born in 1947. Perez’s 56.1 Resp. ¶ 28.
. Perez maintains that he could perform some of the duties of a hand winder, apparently
. Perez asserts in his statement of additional facts that these employees were also younger than Perez. Perez's Facts ¶¶ 57-59.
.In this regard, it is worth noting that reassigning a disabled worker to a position that pays less or is otherwise materially less favorable could itself give rise to a claim of ADA discrimination. See, e.g., Sanders v. City of Chicago, No. 98 C 5838,
. To the extent Perez’s evidence has any relevance at all, it tends only to suggest that TMI's practice is to provide reasonable accommodations via reassignments when it is able to do so.
. According to TMI, all of these employees last worked at TMI before 2002, at least seven years before Perez’s termination. TMI’s 56.1 Resp. ¶¶ 57-59.
. Because summary judgment must be granted on this basis, the Court need not address whether Perez has raised a genuine dispute as to whether he suffered an adverse employment action. Povey,
. It is also questionable whether limiting the length of a leave of absence would constitute a materially adverse employment action, another element Perez is required to prove in order to prevail on Count IV. In the Seventh Circuit, an adverse employment action is defined as an action that is "materially” adverse, meaning "more than a mere inconvenience or an alteration of job responsibilities.” Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1115 (7th Cir.2001) (citation omitted). Limiting the availability of leave may not rise to that level. See, e.g., Griffin v. Potter,
. Perez failed to adduce evidence as to who made the decision about his disability leave or termination. He identifies Joanne Hess, TMI’s controller, as the individual in charge of TMI’s ADEA and ADA compliance, Perez’s 56.1 Resp. ¶ 62, and cites Ortiz’s testimony that Ortiz told Hess that Perez should be taken off the payroll because he had quit, but does not establish that Ms. Hess made any decisions about the term of Perez’s disability leave or termination or that, if she did, she even had knowledge of, much less shared, Ortiz’s view that Perez was "too old.” So far as the record reflects, Plaintiff did not depose Ms. Hess.