Case: 1:14-cv-04555 Document #: 78 Filed: 03/25/24 Page 1 of 12 PageID #:497 Case: L:1,4-cv-04555 Document #: 62 Filed: 02l26lLG Page I of 12 PagelD #:<pagelD>

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

,

Plaintiff,

v No. 14 C 4555

THOMAS J. DART, in his official capacity Judge Rebecca R. PallmeYer as COOK COUNTY SHERIFF and COUNTY OF COOK,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff , a correctional officer in the Cook County Sheriffs Office, has

alleged that Defendants Thomas J. Dart and Cook County violated the Americans with

Disabilities Acl,

ef seq. ("ADA"), by failing to accommodate his alleged

disability and engaging in retaliation. Defendants have moved for summary judgment [38]. For

the reasons set forth below, their motion is granted.

FACTUAL BACKGROUND

The facts are taken from Defendants' Rule 56.1 Statement of Material Facts ("DSF")

[40], as well as Plaintiffs Statement of Additional Undisputed Facts ("PSAF') [51]. Plaintiff

began working for Defendants as a correctional officer in May 2005. ln that position, Plaintiff is

responsible for "observ[ing] and supervis[ing] the behavior of detainees confined to Cook

County's Correctional lnstitutions[,] . . . mak[ing] rounds of assigned area to insure that all

security procedures are adhered to and all detainees under surveillance are accounted for[,]"

and "perform[ing] a variety of other related duties to assist with jail operations.' (DSF [40] lIfl 1,

7.) On January 18,2013, Plaintiff sustained injuries to his left shoulder and neck, as well as left arm strain and a severe traumatic brain concussion, when he intervened in a fight between two

inmates at the Cook County Jail. (/d. fltl 18-19.) As a result of this injury, Plaintiff has received

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temporary total disability worker's compensation benefits since January 19, 2013. (td. Il1l22- 24.)

Beginning a few months after his injury, at the direction of Cook County's Risk

Management Department, Plaintiff had a number of lndependent Medical Examinations (lMEs)

in order to determine the extent of his disability and whether he could return to work. Dr.

David H. Garelick, an orthopedic surgeon, performed lMEs on Plaintiff in April 2013, July 2013,

and October 2013. (Dr. Garelick's December 1 1 , 2013 Addendum, DSF Group Ex. 4.) During

his october 14,2013 examination, Dr. Garelick concluded that Plaintiff could return to work with

the following restrictions: that he (1) not reach, climb, or crawl with his left arm; (2) limit any

grasping, pushing, and pulling with his left arm; (3) not lift more than ten pounds at a time; and

(4) refrain from performing overhead work with his left arm. (td. Il27 (citing Dr. Garelick's

October 14,2013 lME, DSF Group Ex. 4).)1

on November 13, 2019, Michaer Drew, an employee in cook county,s Risk Management Department, wrote to Plaintiff, advising him that Dr. Garelick's October j4,2O13

examination showed that Plaintiff could return to work on a restricted basis. (/d. lT 33 (citing

Letter from Michael Drew, Risk Management, November 13,2013, DSF Ex. 5).) plaintiff also

received a letter from Rosemarie Nolan, Cook County Sheriff's Office Director of Personnel,

' Dr. Garelick appears to have later changed his opinion regarding Plaintiff's restrictions. On October23,2013, Plaintiff undenrvent an IME by Dr. David Hirtman, a medical and forensic neuropsychologist. (Dr. Garelick's December 11 , ZOlg Addendum, DSF Group Ex. 4') Dr' Hartman concluded that Plaintitf was "malingering," making what Dr. Hartman described as the "voluntary choice to stimulate a disability for secondary gain." (/d.) Dr. Julie Wehner, an orthopedic and spine surgeon, also performed an IME on piaintitf, on October 2g,2013. She too observed that Plaintiff's "subjective complaints tdidl not match up with the clinical examination and the radiographic findings." (DSF 11 28 (citing Dr. Wehner's October 28, 2e13 lME, DSF Group Ex. ).) Based on her examination of Piaintiff and review of plaintiff's medical records, Dr. Wehner concluded that he could return to work without any restrictions. (td.) On December 11,2013, Dr. Garelick issued an Addendum to his IME in whith he reviewed his own previous work as well as the lMEs of Drs. Hartman and Wehner, and concluded that Plaintiff could be released to work without restrictions. (td. fl 30.) Dr. Garelick offered no specific explanation for this change in his recommendation.

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dated November 14,2013, directing that he return to work and report to the Sheriff's Personnel

Office on or before November 21, 2Q13.2 Ud.11 34; PSAF I51l 11 19.)

Plaintiff did not return to work, but instead filed a written request for ADA accommodation from the Sheriff's Department on or about December 2, 2013, asserting that

accommodations were necessary due to his "on the job injury" and medical conditions that

"affect[ed] [his] daily ability to function." (PSAF 11 7; PSAF Group Ex. J at 2.) Mr. Drew

responded in a letter dated December 17, 2013. By this time, Dr. Garelick had revised his

assessment of Plaintiff's condition, concluding on December 1 1, 2013, that Plaintiff could return

to full duty with no restrictions, and Mr. Drew took that position in his letter. (/d. lTtl30, 36 (citing

Letterfrom Michael Drew, Risk Management, dated December 17,2013, DSF Ex.6).) Plaintiff

testified that Ms. Nolan provided him with additional time to comply with these returnto-work

notification letters, so that Plaintiff could obtain medical evaluations from his treating physicians.

Ud. n74 (citing Dep. at 113).)

Plaintiff did subsequently meet with his treating doctors, who concluded that his disability

prevented Plaintiff from returning to full-duty work. Dr. Angelo Babbo, an osteopath, examined

Plaintiff on December 19, 2013, and concluded that Plaintiff's injury rendered him unable to

perform any lifting with his left arm. (Dr. Babbo Letter, December 19,2013, PSAF Ex. B.) He

also opined that Plaintiff was "unable to travel far from home due to two reasons-first, his

medications," which included the antidepressant Bupropion (Dr. Babbo Letter, November 20,

2013, PSAF Ex. C), "ma[de] him drowsy and render[ed] him unsafe to drive while taking them

and second, his [gastrointestinal] complaints [made] him fearful of having a bowel movement,"

(Dr. Babbo Letter, December 19,2013, PSAF Ex. B.) On January 6,2014, Plaintiff met with Dr.

Eugene Lopez, an orthopedic surgeon, who provided Plaintiff with medication and a treatment

2 Plaintiff contends that, although this letter was dated November 14,2013, it was not postmarked until November 21, 2013 and not delivered to Plaintiff until November 23,2013. (PSAF lT 19.) The precise date on which Plaintiff received the letter, however, is not materialto this dispute.

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plan for his injury. Dr. Lopez concluded that the medications being prescribed to Plaintiff would

make it unsafe for Plaintiff to drive, and that Plaintiff could not safely work with inmates or carry

a gun.t (Dr. Lopez Examination Report, January 6,2014, PSAF Ex. A.) Accordingly, Dr. Lopez

stated that Plaintiff "should work from home only and perform sedentary tasks." (/d.) Dr.

Babbo, the doctor with whom Plaintiff had met on December 19, 2013, agreed with this

assessment and recommended, on January 8,2014, that "a reasonable accommodation under

the ADA . . . would be to allow [Plaintiffl to work from home." (Dr. Babbo Letter, January 8,

2014, PSAF Ex. D.)

Based on his doctors' driving restrictions, Plaintiff asked Ms. Nolan, the Director of

Personnel, to provide him with reasonable accommodation under the ADA by reassigning him to

the Sheriff's Department's Court Services division in either the Rolling Meadows or Skokie

courthouse, both of which were located within a ten-mile radius of Plaintiff's home in

, lllinois.a (DSF lJll 4647 (citing Dep. 63-64).) Plaintiff also testified that, based on

his doctors' restrictions, he sought an ADA accommodation of a position requiring no inmate

contact. (/d. 1158-59 (citing Dep. at 95).) The precise date on which he made this request

is not in the record, but in January 2014, Ms. Nolan offered Plaintiff a position in the Visitation

Center, located in Division V of the Jail, in response to Plaintiffs ADA request.5 (/d. 11 50; PSAF

3 These medications were Mobic, Prilosec, Ultram ER, Dendracin cream, Neurontin, Ambien, and Tylenol-Codeine. (PSAF Ex. A.) 4 Plaintiff testified that he requested the courthouse accommodation because his doctors recommended that he not work more than "five to ten miles" from his home. ( Dep. at 64.) Plaintiff's doctors' reports make no reference to a five or ten-mile driving restriction, however; they recommend only that he refrain from driving significant distances because of his medications and fear of having a bowel movement. (PSAF Exs. A, B & C.) u ln his response to Defendants' Rule 56.1 Statement, Plaintiff contends that he did not recall the position being "offered" to him in January 2014. (Pl.'s Resp. to DSF t[50.) ln his deposition, however, Plaintiff testified that Ms. Nolan "offer[ed] that it was a position" ( Dep. tl 77), and in a February 10, 2014,letter from Plaintiff to Ms. Nolan, Plaintiff acknowledged that the position had been "offered" to him. (Letter from to Rosemarie Nolan, February 10,2014, PSAF Ex. J.)

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fl15.) Ms. Nolan believed the Visitation Center position would "accommodate [Plaintiff's] restrictions." (Nolan Aff. at 4, DSF Ex. 7.) The Visitation Center position would have required

Plaintiff to answer phones, but was located some 20lo 23 miles from Plaintiff's house. (PSAF

tl15; Dep. at 79.) Terrance Coughlan, a Deputy Chief in the Sheriff's Bureau of Human

Resources, also discussed the job with Plaintiff. (DSF !|fl 51-53.) According to Plaintiff, this

conversation with Mr. Coughlan took place around May 9,2014. ( Dep. at77-78.) On May

19, 2014, Plaintiff asked one of his treating doctors, Dr. Babbo, to review the Visitation Center

job description. (Letter from Dr. Babbo to Mr. Coughlan, May 19, 2014, PSAF Ex. G.) ln a

written letter to Mr. Coughlan that same day, Dr. Babbo expressed his concern that Plaintiff was

"not yet ready to return to any kind of duty," but did not convey any reservations specific to the

Visitation Center position. (ld.) Plaintiff states that he would have accepted the Visitation

CenterpositionattheJail if Defendantshadprovidedhimwithtransportation. (PSAFlJ 15.) At

his deposition, however, Plaintiff testified that he rejected the Visitation Center position not only

because it was outside of his "driving radius," but also because it would have involved

"exposure to inmates"6 l Dep. at 77-78), which would have contravened his doctors'

recommendations. (DSF lTlJ 56-58; PSF 1[ 15.)

Jim Moran, a correctional officer with the Sheriff's Office, was aware of Plaintiff's injuries

and work restrictions and claims to have personal knowledge that at least five correctional

employees without disabilities were assigned to "light-duty" positions at the Skokie or Rolling

Meadows courthouses since early 2013. (PSAF 1T 28.) Plaintiff had also heard of such

assignments "through the grapevine." (DSF ![ 48 (quoting Dep. at 91).) Ms. Nolan and Mr.

Coughlan both attest, however, that there were no "ADA positions" or "restricted duty" positions

at either suburban courthouse. (/d. fltl 7, 47, 51; Nolan Aff. at 2, 4, DSF Ex. 7; Coughlan Aff.

6 Plaintiff contends that correctional officer positions at the Jail exist that do not require inmate contact, such as working as a tower guard, parking lot guard, or working in "external operations." (PSAF 116; Dep. at 95-96.) Defendants have not addressed whether these positions exist or whether they involve inmate contact-but the court notes that Plaintiff's driving restriction would preclude his working in any position at Cook County Jail.

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at 2, DSF Ex. 8.) An "ADA position," according to Ms. Nolan, is a position reserved for

individuals who are qualified for those positions based on their disabilities. (Nolan Aff. at 2.)

Michael Holmes, First Assistant Executive Director in the Cook County Department of

Corrections, filed an affidavit explaining that correctional officers from the Jail who were

transferred to the Rolling Meadows and Skokie courthouses in 2013 received their positions as

part of the County's "Remote Booking" program, which involved transferring correctional officers

specially trained in reading "handwritten court mittimus" to the suburban courthouses in order to

assist with the detainee intake process. (Holmes Aff. at 2-3, Reply Br. [56] Ex. B.) According to

Mr. Holmes, these officers' main responsibilities included ensuring that detainees were being

processed correctly, interpreting court mittimus documents, and establishing a policy and

procedure for the release of Cook County Department of Corrections inmates and other

detainees from courthouse lock-ups. (ld.) Mr. Holmes asserts that these jobs required the

officers to have regular inmate contact (id.), an aspect of the position that neither Plaintiff nor his

colleague Jim Moran have addressed.

On December 10, 2013-days before receiving Mr. Drew's second letter, and well

before Ms. Nolan offered the Visitation Center position-Plaintiff filed Equal Employment

Opportunity Commission ("EEOC') charges against the Sheriff's Office, alleging that the

Sheriff's Office had discriminated against him based on his disability "by failing to accommodate

his doctors [sic] restrictions."T (Am. Compl. I23l Ex. A at 7.) Plaintiff further alleged that the

Sheriff's Office had retaliated against him for EEOC charges that Plaintiff had filed against the

Office in 2012.8 ga.; Dep. at 126-27.) He received a right-to-sue letter on March 16,2014

(Am. Compl. Ex. B at 8), and brought this action [1] on June 1 7, 2e14.

t Although the EEOC charges were filed on December 10, 2013, Plaintiff signed the EEOC complaint on December 6,2013. (DSF Ex. A.) t Further details relating to Plaintiffs prior EEOC charges were not provided in Plaintiff's December 10,2013 filing with the EEoc, nor are they in the record.

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ln his amended complaint, filed on May 5, 2015, Plaintiff alleges a failure-to- accommodate claim and a retaliation claim under the ADA. Specifically, Plaintiff complains that

Defendants refused to provide him with a reasonable accommodation for his inability to drive as

a result of his disability. (Am. Compl. l[fl 10-12.) He offers as evidence of retaliation the facts

(1) that he had filed a previous EEOC charge against the Sheritf's Office and (2) that Ms. Nolan

had sent him letters warning that he would be terminated if he did not follow return-to-work

procedures. (DSF tltT70, 72 (citing Dep. at129,134-35).) Plaintiff also offers Ms. Nolan's

letters as evidence of a hostile work environment at the Sheriff's Office. (rd. lIfl 76-78 (citing

Dep. at 137-38).) Defendants contend that they are entitled to summary judgment

because Plaintiff is unable to meet his burden of proof regarding any of his claims. (Defs. Mot.

at 1.)

DISCUSSION

The court will grant summary judgment if the record shows that there is no genuine

dispute as to any material fact and that Defendants are entitled to judgment as a matter of law'

Feo. R. Crv. P. 56(a). A fact is material if it might affect the outcome of the suit under governing

law, and a dispute is genuine if "the evidence is such that a reasonable jury could return a

verdict for the nonmoving party." Anderson v. Liberty Lobby, lnc., 477 U.5.242,248,

(1986); Carrollv. Lynch,

(7th Cir. 2012).

A. Plaintiff'sFailure-to-AccommodateGlaim

To establish a prima facie failure-to-accommodate case under the ADA, a plaintiff must

show "that (1) he is a qualified individual with a disability, (2) [the defendant] was aware of his

disability, and (3) [the defendant] failed to reasonably accommodate his disability." Hooper v.

Proctor Health Care Inc.,8O4 F.3d 846, 852 (7th Cir. 2015) (citing Reeves ex rel. Reeves v.

Jewel Food Sfores, \nc.,

(7th Cir. 2014)). Because an ADA plaintiff carries

the burden of proof at trial, it is Plaintiff's burden, in rebutting Defendants' Rule 56.1 filings and

supporting memoranda, to establish that a genuine issue of material fact exists at the summary

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judgment stage. See, e.9., Sferk v. Redbox Automated Retail, LLC,77O F.3d 61 8,627 (7th Cir.

2014) (citing celotex corp. v. catrett, 477 u.s. 312 , 32s, 106 s. ct. 2s4B (1986)).

Plaintiff has failed to meet that burden, and his failure-to-accommodate claim cannot

survive summary judgment. The court notes, first, that it is not clear, on this record, that Plaintiff

is disabled within the meaning of the ADA. Under the ADA, an individual has a "disability" if that

person has a "physical or mental impairment that substantially limits one or more major life

activities,"

(4), but can nevertheless perform his job with or without an

accommodation. A physical or mental impairment may be a disability if it limits such activities

as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working," or the operation of a major bodily function.

;

29 C.F.R. S 1630.2(i). At least prior to the adoption of the Americans with Disabitities Act

Amendments Act ("ADAR4"1, driving itself was not deemed a major life activity. Winstey v. Cook

County,

(7th Cir. 2009); cf. Fteishman v. Continental Cas. Co.,

,

606 n.3 (7th Cir. 2012). An individual's inability to drive could create a disability, but only "if it

caused [a substantial] impairment of a major life activity," such as working . Winsley,

. But to show that a driving restriction substantially interferes with his ability to work, plaintiff

must demonstrate that it significantly restricts his "ability to perform either a class of jobs or a

broad range of jobs in various classes as compared to the average person having comparable

training, skills and abilities." Carothers v. County of Cook,

(7th Cir. 2015), citing

Povey v. City of Jeffersonville,69T F.3d 619, 623 (7th Cir. 2012); see a/so 29 C.F.R. S 1630

Appendix. Furthermore, a limitation "in performing the unique aspects of a single specific job is

not sufficient to establish that a person is substantially limited in the major life activity of

working." 29 C.F.R. S 1630 Appendix. The fact that plaintiff is unable to perform a particular job

for a particular employer is ordinarily "not sufficient to establish a substantial limitation on the

ability to work; rather, the impairment must substantially limit employment generally." Powers v.

USF Holland, \nc.,

(7th Cir. 2011) (internal citations omitted).

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Plaintiff's complaint alleges that Defendants failed to provide him with reasonable

accommodations for his driving restrictions, but he offers no basis for the conclusion that the

driving restriction genuinely interferes with his ability to work. See Povey,697 F.3d at 623 (7th

Cir. 2O12) ("To demonstrate that [he] is substantially limited in the activity of working," a plaintiff

at the summary judgment stage ordinarily "must provide some proof on the number and types of

jobs within the geographical area to which the [claimant] has reasonable access.") (internal

citations and quotations omitted). Plaintiff has presented no evidence from which the court

could find that his inability to drive significant distances limits his ability to perform a class of

jobs or a broad range of jobs in various classes.

Because a job "class" generally means a job that "utiliz[es] an individual's skills,"

Squibb v. Memorial Medical Center,

(7th Cir. 2007) (internal quotation and

citation omitted), the court assumes that the relevant job class in this case is a security position

with the Sheriffs Office or for another public or private employer. There is no evidence that

Plaintiff's inability to drive more than ten miles from his home substantially limits his ability to

perform this class of job. Presumably, security guards are employed in a large number of

business banks and retail establishments near Plaintiff's home, or accessible via public

transportation.

Although Plaintiff's amended complaint alleges only that Defendants failed to

accommodate his driving restrictions, Plaintiff also contends, in response to Defendant's motion

for summary judgment, that Defendants failed to accommodate his restrictions on inmate contact and carrying a weapon.e The court concludes that these restrictions also do not render

Plaintiff disabled under the ADA. ln Carothers v. County of Cook, the plaintiff Carothers, a

n According to Plaintiff, he had also mentioned to his colleague Jim Moran that he had work restrictions on lifting. (Pl.'s Br. at 5.) A lifting restriction might render Plaintiff disabled under the ADA, see

(2XA) (defining lifting as a major life activity), but it is not mentioned in Plaintiff's complaint, nor has Plaintiff argued that he would have been required to engage in prohibited lifting had he accepted the position that Defendants offered him in the Visitation Center.

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juvenile correctional center employee, brought a lawsuit against Cook County and the Office of

Transitional Administrator under the ADA, alleging that the defendants discriminated against her

based on her disability: an "anxiety disorder" that precluded plaintiff from "exposure to and

interactions with teenagers."

(7th Cir. 2015). The Seventh Circuit

concluded that Carothers' anxiety disorder was not a disability within the meaning of the ADA

because "interacting with juvenile detainees is a unique aspecf of the single specific job of

working as a hearing officer at a juvenile correctional center." ld. a|1148 (emphasis original).

Accordingly, while her disorder may have prevented Carothers from working at the juvenile

detention center, it did not restrict her ability to work in a class of jobs or a broad range of jobs.

ld. The same reasoning applies here. lnteracting with inmates and carrying a weapon are unique aspects of the job of a correctional officer at the Cook County Jail (and other detention

facilities). While Plaintiff's inability to interact with inmates and catry a weapon may prevent him

from holding that specific job, he may still obtain other correctional officer or security officer

positions that do not impose these requirements.

At oral argument on this motion, Plaintiff's counsel emphasized that, to the extent he is

uncertain what other positions Cook County should have offered him, it is because Cook County

officials failed to engage in the "interactive process" to assist Plaintiff in finding a job he could

perform. The interactive process prescribed by the ADA "is not an end in itself," however.

Rehling v. City of Chicago,2OT F.3d 1009, '1015 (7th Cir. 2000). Rather, "it is a means for

determining what reasonable accommodations are available," and Plaintiff retains the burden,

on summary judgment, of showing that there is an available accommodation that could have

been achieved. /d.; see Dunderdale v. United Airlines, lnc.,8O7 F.3d 849, 856-57 (7th Cir. 2015)

(where an ADA plaintiff requests reassignment, in order to survive summary judgment, plaintiff

must show that vacancy to survive summary judgment existed at time of accommodation

request). On this record, it does not appear that the interactive process failed due to Defendants' unwillingness. lnstead, the court takes notice that just four days after Plaintiff made

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his initial ADA accommodation request, he filed an EEOC charge against Defendants, alleging

that they had failed to accommodate his disability. Defendants' purported failure to engage in

an interactive process does not preclude summary judgment in this case.

B. Plaintiff's Retaliation Glaim

The court's conclusion that Plaintiff is not disabled does not foreclose Plaintiff's claim

that Defendants retaliated against Plaintiff for his EEOC charge. See Sguibb,497 F'3d at 786

("The IADAI prohibits an employer from retaliating against an employee who has raised an ADA

claim, whether or not that employee ultimately succeeds on the merits of that claim." (citing

Cassimy v. Bd. of Ed. of Rockford Pub. Schoo/s,

(7th Cir. 2006)))' ln

bringing a retaliation claim, Plaintiff was required to show that: (1) he engaged in a statutorily

protected activity, (2) he suffered an adverse employment action, and (3) there was a causal

connection between the two. /d. (citing Burks v. Wis. Dept of Transp.,

(7lh

Cir. 2006)). The court will assume that Plaintiff engaged in a protected activity by filing his

EEOC charge, but Plaintiff has not identified any adverse employment action in this case. He

has continued to collect disability benefits, and remains officially employed as a correctional

officer for Defendants. He does not assert that he was fired, demoted, or deprived of pay or

benefits as a consequence of his EEOC action. Evidence of non-accommodation (in this case,

Defendants' offer of just one job, at the Jail rather than within a few miles of Plaintiff's home)

cannot do "double duty" as evidence of an adverse employment action. See Pack v- lll' Dep't of

Healthcare and Famity Servs., No. 13-cv-8930, 2014WL3704917, al*4 (N.D. lll. Jul.25, 2014)

(plaintiff s allegations that defendant retaliated against her by denying her requested

accommodation were insufficient to serve as an adverse employment action for an ADA

retaliation claim because they merely restated plaintiff's failure-to-accommodate claim).

Plaintiff's amended complaint incorporates a hostile work environment claim, as well.

The Seventh Circuit has not yet recognized the viability of a hostile work environment cause of

action under the ADA. See Ltoyd v. Swifty Transp., lnc.,

(7th Cir. 2009)

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(citing Mannie v. Potter,

(7th Cir. 2005)). Assuming that such a cause of

action exists, the record does not create a genuine dispute as to whether Plaintiff's work

environment was "both subjectively and objectively offensive" or that Defendants' conduct was

"severe or pervasive," the traditional Title Vll requirements for hostile work environment claims.

See Chaib v. lndiana,

(7th Cir. 2014) (citing Mittigan v. Bd. of Trs. of S. ltt.

Univ.,

(7th Cir. 2012)). Plaintiff alleges that he was subject to "harassment"

by Defendants, "making it very difficult to find work" (Am. Compl. 1121), but the record contains

no evidence that Defendants harassed him. Plaintiff asserts that he received "threatening letters in the mail from Director Nolan stating that if [Plaintifl didn't return to work, [he] was

going to be terminated.' (DSF Ex.2 at 137-38.) Correspondence notifying him of the

consequences for his failure to return to work if he does not follow return-to-work procedures,

however, does not amount to threatening or otherwise improper conduct.

Because Defendants are entitled to summary judgment with respect to all of Plaintiff's

claims-for discrimination, retaliation, and hostile work environment-there is no need to consider the possible formal shortcomings of Plaintiff's Rule 56.1 statement.

CONCLUSION

When Defendants directed Plaintitf to return to work after his injury, Plaintiff alleged a

failure to accommodate. Defendants did offer him a desk job, but Plaintiff contends it was

beyond his driving restrictions. Plaintiff claims Defendants did not otherwise accommodate his

disability, but he has not shown that any position was available that did not require inmate

conduct. Nor did Defendants retaliate against or harass him by directing him to return to work.

Defendants'motion for summary judgment [38] is granted.

ENTER:

Dated: February 26,2016 REBECCA R. PALLMEYER United States District Judge

12