United States District Court, E.D. Wisconsin
MARK A. HEATHER, Plaintiff,
KREILKAMP TRUCKING INC., Defendant.
STADTMUELLER U.S. DISTRICT JUDGE
alleges that Defendant, his former employer, discriminated
against him on the basis of his disability, and failed to
accommodate that disability, in violation of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12112(a). (Docket #1). According to Plaintiff's
complaint, he worked for Defendant as a truck driver for
fifteen years. He has suffered from osteoarthritis in his
knee for much longer than that. In March 2015, Plaintiff
suffered an acute injury to that same knee and took thirteen
weeks of approved medical leave to recover.
returned to work using a knee brace. However, it appears that
the knee injury significantly slowed his work routine. In
February 2016, Defendant changed Plaintiff's job duties
to include more manual labor. He requested, and was granted,
approval for an additional fifteen minutes to complete those
tasks due to his disability. Also at that time,
Defendant's third-party customer for whom Plaintiff was
working complained about Plaintiff's work speed.
Defendant removed Plaintiff from that position and assigned
him to an over-the-road (“OTR”) position, which
required longer drives outside Wisconsin.
maintains that Defendant had several positions for local
trucking available at the time. He asked for such a position
so that he could continue receiving medical treatment for his
knee. Defendant refused the request. Plaintiff nevertheless
dutifully reported to the OTR job in March 2016, still
wearing his knee brace. A manager told Plaintiff he was
wearing the brace only for sympathy and that his medical
treatments were unnecessary. Plaintiff was further informed
that he needed to obtain a release from a doctor stating that
he had no physical limitations before he would be allowed to
return to work. Shortly thereafter Defendant terminated
Plaintiff, citing his lack of speed and efficiency.
noted above, Plaintiff brings two claims under the ADA.
First, he asserts that Defendant failed to provide him a
reasonable accommodation for his disability, namely a local
driving position. Second, Plaintiff contends that Defendant
discriminated against him on the basis of his disability
through the manager's comments and his eventual
termination for “speed and efficiency” issues.
filed this action on November 21, 2018. (Docket #1).
Defendant was served in December 2018 and a scheduling
conference was held on January 25, 2019. (Docket #11). The
Court provided the parties with a schedule for the case which
included a dispositive motion deadline of July 5, 2019.
(Docket #12). There were no meaningful filings in the case
until July 3, 2019, when Defendant filed a motion for
judgment on the pleadings. (Docket #16). Five days later,
Defendant filed a motion for partial summary judgment.
Court turns first to the motion for judgment on the
pleadings. Preliminarily, the Court is baffled by
Defendant's delay in presenting such a motion. The motion
challenges the sufficiency of Plaintiff's allegations,
and Defendant was in possession of his complaint for
approximately seven months prior to filing the motion. Why
Defendant chose to wait until the deadline for dispositive
motions to seek a Rule 12 dismissal is beyond the Court's
event, the motion is procedurally proper, so the Court will
consider its merits. To state a claim for a failure to
accommodate under the ADA, a plaintiff must allege that they
are (1) a qualified person with a disability, (2) their
employer was aware of their disability, and (3) the employer
failed to reasonably accommodate their disability.
Tarpley v. City Colleges of Chi., 752 Fed.Appx. 336,
349 (7th Cir. 2018). As for discrimination, a plaintiff must
establish that (1) they are a person with a disability, (2)
they are qualified to perform the essential functions of
their job, with or without reasonable accommodation, and (3),
they suffered an adverse employment action as a result of
their disability. Guzman v. Brown Cty., 884 F.3d
633, 641 (7th Cir. 2018).
allegations easily satisfy both claims. He states that he has
had osteoarthritis for decades, which was exacerbated by an
acute injury in recent years. Despite these issues, he
continued to work; before the injury, without a knee brace,
and after the injury, with one. Defendant became aware of the
disability through Plaintiff's medical leave, his
subsequent requests for accommodation, and by simply viewing
the knee brace when he wore it. Finally, Defendant refused to
accommodate Plaintiff's disability by assigning him to
one of the available local driving positions, and then
terminated him for reasons stemming directly from the
limitations imposed by his disability.
desires far more specificity from Plaintiff than what he
provides. In particular, Defendant believes that Plaintiff
has not adequately pleaded the elements of a
“disability” as defined in the ADA. This
definition requires that the impairment in question
substantially limits a major life activity, 42 U.S.C. §
12102(1)(A), with such activities including walking, lifting,
working, and performing manual tasks, id. §
(2)(A). Defendant also questions whether Plaintiff's
osteoarthritis, a common condition, should qualify as a
disability. Defendant further contends that the complaint
does not explain how it was on notice of Plaintiff's
disability, or that the termination decision was casaully
connected to the disability. Finally, Defendant's entire
position is colored by its belief that a liberal notice
pleading standard is not applicable to the complaint in light
of the plausibility requirements stated in Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009).
demand for greater detail is not required by law. When
addressing a motion for judgment on the pleadings, a court
must apply the same standard of review as it would with a
motion to dismiss. Adams v. City of Indianapolis,
742 F.3d 720, 727-28 (7th Cir. 2014). This standard requires
the Court to accept all of Plaintiff's factual
allegations as true and make all reasonable inferences in his
favor. Id. at 728; Scherr v. Marriott Int'l,
Inc., 703 F.3d 1069, 1073 (7th Cir. 2013). And, despite
Defendant's contrary view, the federal courts still
largely require mere notice pleading. Freeman v. Metro.
Water Reclamation Dist. of Greater Chi., 927 F.3d 961,
965-66 (7th Cir. 2019).
recent Freeman opinion helps illuminate the standard
of review as applied to an ADA case:
The general rule in federal court calls only for notice
pleading, see Erickson v. Pardus, 551 U.S. 89, 93,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), but some theories of
recovery require more detail than others in order to give the
required notice. That is why we noted in Tate v. SCR
Medical Transportation, 809 F.3d 343, 345 (7th Cir.
2015), that a plaintiff advancing a claim under the ADA must
allege that he is disabled but, with or without reasonable
accommodation, can still do the job. Normally he also must
allege what exactly makes him disabled.
The district court here faulted Freeman for not alleging that
his alcoholism substantially limits a major life activity.
See Tate, 809 F.3d at 345-46. But we read
Freeman's complaint as alleging that the District
regarded him as an alcoholic, see 42 U.S.C. §
12102(1)(C), because of his suspended license for driving
under the influence of alcohol, and then it concluded from
his suspension that his alcoholism impaired his ability to
work at any job that involves safely moving items across a
facility. Because that activity includes a broad class of
work, a jury could conclude that it is a major life activity.
See 29 C.F.R. § 1630.2(i)(1); Miller v. Ill. Dept.
of Transp., 643 F.3d 190, 195- 97 (7th Cir. 2011).
Freeman also alleged that he could fulfill his duties with a
reasonable accommodation (bike, John Deere cart, or
occupational permit), but that the District fired him anyway
“due to” his ...