Grimes v. Union Planters Bank

Full title: JOHN E. GRIMES, Plaintiff, v. UNION PLANTERS BANK, N.A., Defendant

Court: United States District Court, S.D. Indiana, Indianapolis Division

Date published: Oct 30, 2004

No. 1:02-cv-01573-JDT-TAB (S.D. Ind. Oct. 30, 2004)

Opinion

No. 1:02-cv-01573-JDT-TAB.

October 30, 2004

ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ¹

1 This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.

JOHN TINDER, District Judge

Plaintiff, John E. Grimes worked as a postal clerk for Defendant, Union Planters Bank, N.A. ("UPB"). Mr. Grimes suffered a series of injuries and medical problems, and, after he was placed on permanent restrictions by his doctor, UPB terminated Mr. Grimes' employment. Mr. Grimes sued UPB for violating the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., by failing to accommodate his disability and for retaliation. In his Amended Complaint against UPB, Mr. Grimes also alleged breach of contract and defamation. UPB moved for summary judgment as to the claims of failure to accommodate, breach of contract and defamation. After considering the evidence, the arguments of the parties and the law, the court finds as follows.

I. Facts

Mr. Grimes, born in 1944, was employed in banking first by Indiana National Bank ("INB") in 1991, and later by NBD Bank after it merged with INB. (Grimes Dep. at 59-65.) His positions with INB and NBD involved working in the mailroom and driving routes to bank branches. ( Id. at 61, 67.) In early 1999, UPB acquired a number of branch banks and other banking facilities from NBD, at which time Mr. Grimes was hired by UPB to continue working in the mailroom. ( Id. at 97-98.) Throughout his employment at UPB, Mr. Grimes worked in the "Lockbox/Mail Services" area, a small department consisting of four clerks and a supervisor, Teresa Johnson. (Johnson Aff. ¶¶ 3-4.) His job title was Postal Clerk I, and his job duties included collecting and sorting incoming and interoffice mail, preparing work for courier pick-up, receiving incoming deliveries and completing accounting paperwork. ( Id. ¶ 4, Ex. 1.) The job duties required, among other things, repeated bending, twisting and lifting of branch bank bags and interoffice bags weighing from 5 to 50 pounds. ( Id. ¶ 5; Grimes Dep. at 134; Pruzin Aff., Ex. 12 at 1.)

On May 8, 2000, Mr. Grimes injured his arm while lifting and loading mailbags. (Johnson Aff. ¶ 8; Grimes Dep. at 125-26.) Two days later, he reported the injury to his supervisor, although he declined immediate medical treatment. (Johnson Aff. ¶ 9.) Mr. Grimes soon began complaining of back pain and a worker's compensation file was opened. ( Id.; Grimes Dep. at 126-27.) On June 9, 2000, Mr. Grimes began seeking treatment at the Methodist Occupational Health Center ("MOHC") for his arm and back pain. (Johnson Aff. ¶ 10; Grimes Dep. at 128.) During Mr. Grimes' June 9 visit to MOHC, a doctor diagnosed Mr. Grimes with a back strain and issued a work restriction recommending no repeated bending or squatting, no reaching above the shoulders and no frequent lifting of more than 5 pounds and no occasional lifting of more than 10 pounds. (Johnson Aff. ¶ 11, Ex. 3; Grimes Dep. at 134-35.) Ms. Johnson instructed Mr. Grimes to do only those tasks which would not violate his work restrictions, and instructed the other mailroom clerks to perform the tasks which Mr. Grimes was restricted from performing. (Johnson Aff. ¶ 12.) In practice, the other clerks in the office assisted Mr. Grimes with his heavy lifting duties. (Grimes Aff. ¶ 7.) These work restrictions ended on July 5, 2000. (Pruzin Aff. ¶ 13.)

In late August 2000, Mr. Grimes again sought treatment at MOHC for pain and numbness in his right thigh, calf and foot. ( Id. ¶ 14; Grimes Dep. at 138-39.) He was diagnosed with lumbosacral sprain/strain and prescribed medication and physical therapy. (Pruzin Aff. ¶ 14.) He was also given work restrictions, which remained in effect until September 14, 2000, of no repeated bending and no push/pull greater than 10 pounds frequently or 15 pounds occasionally. (Pruzin Aff. ¶ 14, Ex. 5.) As before, the other clerks performed the tasks which would have violated Mr. Grimes' work restrictions. ( Id.; Johnson Aff. ¶ 13.) While Mr. Grimes' other tasks were performed by the other clerks, he would generally sit at a desk and answer the phone or reconcile food stamps collected by the bank branches. (Johnson Aff. ¶ 15; Gardner Aff. ¶ 8.)

On November 10, 2000, Mr. Grimes again reported lower back and right leg pain, as well as chest pain, and again saw a doctor at MOHC. (Pruzin Aff. ¶ 15, Ex. 6A.) He was prescribed medication and released to work with a 20-pound lifting restriction and limits on bending and twisting. ( Id.) After a follow-up visit with the same MOHC physician on December 19, 2000, Mr. Grimes was released to work without restrictions. (Pruzin Aff. ¶ 15, Ex. 6B.)

In May of 2001, Mr. Grimes reported that he was having problems with his hands swelling at night, and UPB opened another worker's compensation file. (Johnson Aff. ¶ 16; Pruzin Aff. ¶ 16.) Another physician at MOHC diagnosed the problem as carpal tunnel syndrome, and prescribed medication and a wrist splint. (Pruzin Aff. ¶ 16, Exs. 7-8.) That physician also noted that Mr. Grimes had occasional chest pains, an issue which had been investigated (through a heart catheterization) by Mr. Grimes' primary care physician. ( Id., Ex. 8.)

On November 2, 2001, Mr. Grimes underwent an outpatient lumbar discography for his continuing back problems. (Pruzin Aff. ¶ 18, Ex. 9.) Afterward, he was again given restrictions on bending and twisting. (Pruzin Aff. ¶ 19.) On November 16, 2001, Mr. Grimes underwent carpel tunnel release surgery. (Pruzin Aff. ¶ 17; Grimes Dep. at 152-54.) After the carpal tunnel surgery, Mr. Grimes was restricted from lifting more than two pounds with no repetitive pushing, pulling, grasping or twisting. (Gardner Aff. ¶ 11.) He continued to arrive at work for two and a half weeks, but given those restrictions, the only thing he did was sit and answer the phone. ( Id.; Grimes Dep. at 163.) Finally, UPB concluded there were no duties light enough to justify Mr. Grimes coming to work and he was placed on medical leave from December 3, 2001 to January 14, 2002. (Pruzin Aff. ¶ 19; Gardner Aff. ¶ 11.)

Sometime around November 2001, during the time Mr. Grimes was working under restrictions, the other mailroom clerks (who were performing Mr. Grimes' restricted tasks) informed their immediate supervisor, Ms. Johnson, that Mr. Grimes told them he was working on stained glass windows, pouring concrete, building a deck, moving furniture and fixing his garage roof. (Johnson Aff. ¶ 19; Pruzin Dep. at 7-8.) Ms. Johnson relayed this report to three people: her supervisor, Greg Gardner; a UPB human resources employee, Kristie Pruzin; and, the adjustor handling Mr. Grimes' worker's compensation claim for UPB's insurer. (Johnson Aff. ¶ 19.) Ms. Pruzin in turn discussed the report with UPB's vice-president of human resources. (Potenza Dep. at 42-43.) Ms. Pruzin also asked the insurance adjuster whether the insurance company could order surveillance on Mr. Grimes. (Pruzin Dep. at 6-7, 9; Pl.'s Surreply, Tab 4 at "UPBNA 0712.")

In December 2001, Mr. Grimes was referred to an orthopedic spine specialist, Dr. Robert Huler, for an independent medical evaluation and an estimate as to when maximum medical improvement would be reached. (Pruzin Aff. ¶ 20, Grimes Dep. at 155.) On December 5, Dr. Huler examined Mr. Grimes, recommended against surgery, and opined that Mr. Grimes had achieved maximum medical improvement. (Pruzin Aff. ¶ 20, Ex. 11.) Dr. Huler assigned a 2% whole body impairment rating based on Mr. Grimes' back pain. ( Id.) He also recommended that once Mr. Grimes' hand surgeon deemed it appropriate, Mr. Grimes should undergo a functional capacity evaluation. ( Id.)

On January 10, 2002, a physical therapist conducted the functional capacity evaluation of Mr. Grimes. The therapist concluded: "Based upon the results of this evaluation, Mr. Grimes DOES APPEAR TO MEET MOST of the necessary job tasks of a mail sorter with the exception of performing repetitive forward bending and prolonged standing. He currently falls in the MEDIUM physical demand level." (Pruzin Aff. ¶ 21, Ex. 12 at 7 (emphasis in original).) Specifically, the therapist opined that during an eight-hour workday, Mr. Grimes could stand between 4-6 hours, with frequent breaks, and could bend occasionally. ( Id. at "UPBNA 0192.") The therapist also reported that Mr. Grimes could occasionally do the following: lift 42 pounds from the floor to his waist; lift 35 pounds up to his shoulder; carry 40 pounds 20 yards; and, push/pull 190 pounds. ( Id.)

On January 16, 2002, Dr. Huler again saw Mr. Grimes, and assigned Mr. Grimes permanent restrictions of no lifting over 20 pounds and no repetitive lifting, twisting or bending. (Pruzin Aff. ¶ 22, Ex. 13.) He released Mr. Grimes for "modified duty work," consistent with those restrictions. ( Id.)

Upon receipt of the permanent restrictions, Mr. Gardner performed a detailed job analysis of all the tasks required of a Postal Clerk I, assigning each task a relative importance, determining whether Mr. Grimes could perform the task given Dr. Huler's restrictions, and, if not, determining whether UPB could make a reasonable accommodation. (Gardner Aff. ¶¶ 12-13, Ex. 1.) Mr. Gardner determined that Mr. Grimes was restricted from performing many, if not most, of the essential job functions of a Postal Clerk I. ( Id.) He suggested one "partial accommodation": purchasing a third waist-level cart for the mail room. (Gardner Aff., Ex. 1.) However, after discussing the possibility of buying this cart with two UPB human resources officials, they concluded that the impact would be marginal, and Mr. Grimes would still be unable to perform many of the essential functions of his job due to his permanent restrictions. (Gardner Aff. ¶ 13.) They further concluded that the only way Mr. Grimes could be fully accommodated, given his permanent restrictions, would be have other employees perform some of the essential functions of his job on a permanent basis. ( Id.; Pruzin Aff. ¶ 24.) Mr. Gardner and the human resources officials declined to do this, seeing it as wasteful and fearing it would lead to morale problems with the other clerks (who had already complained they were being treated unfairly because they were performing part of Mr. Grimes' job as well as their own). (Gardner Aff. ¶ 13.)

On February 4, 2002, UPB terminated Mr. Grimes' employment. (Gardner Aff. ¶ 15, Ex. 2.) At the time of his termination, Mr. Gardner presented Mr. Grimes with a list of open positions at UPB, most of which were bank teller positions. ( Id.; Grimes Dep. at 165-66.) Mr. Grimes felt he was not qualified for any of the listed positions (and indeed Mr. Gardner told Mr. Grimes that he was not qualified for some of those jobs). (Grimes Dep. at 165-66; Gardner Dep. at 25.) Mr. Grimes was told that he was eligible to apply for rehire at UPB if a job became available which met his permanent restrictions. (Gardner Aff. ¶ 15, Ex. 2.)

Mr. Grimes testified that at the time of his termination, none of his restrictions prevented him from doing his job. (Grimes Dep. at 146.) He testified that he can lift up to 45 or 50 pounds occasionally, 35 pounds frequently and 20 pounds constantly. ( Id. at 160, 172.) He never missed a day of work due to his back injury, except occasionally to leave early for treatment. ( Id. at 141, 163.) And when asked what accommodations UPB should have provided, Mr. Grimes testified "the only accommodation I needed," was "[j]ust to leave me alone and let me do my job." ( Id. at 207.) He did testify that he needed assistance unloading heavy items, but that since everyone on the mailroom helped with big loads, it was not a problem. ( Id. at 233.) Indeed, Mr. Gardner did not have issues with Mr. Grimes' work performance, testifying that "[Mr. Grimes] was a good worker. Everybody liked [him]." (Gardner Dep. at 31; "UPBNA 2372", attached to Pl.'s Surreply, Tab 4.)

Mr. Grimes suffers from a number of medical conditions: the above-described back injury and carpal tunnel syndrome, as well as dyslexia, heart disease, emphysema and chronic fatigue syndrome. (Grimes Aff. ¶ 4.) Despite these conditions, he testified he is able to care for all of his own personal needs, cooking, house-cleaning, and shopping. (Grimes Dep. at 171-73.) He mows his lawn (albeit slowly) with a push mower, and builds stained-glass windows as a hobby. ( Id. at 174-75.)

Mr. Grimes testified that he believes he was not really terminated because of his restrictions, but because UPB was "downsizing", due to the fact that there was not enough work to keep all of the mailroom employees busy. ( Id. at 133, 207.) And even Mr. Gardner testified that when Mr. Grimes was terminated and "for some time before that," the mailroom was overstaffed. (Gardner Dep at 22.) After Mr. Grimes' termination, his duties were taken over by the other mailroom employees for at least a month. (Pruzin Dep. at 17.)

On February 20, 2002, Mr. Grimes timely filed a charge of discrimination against UPB with the Equal Employment Opportunity Commission ("EEOC"), alleging that UPB violated the ADA when the bank terminated him. On March 1, 2002, in response to this charge, a UPB employee named John Daniel sent another UPB employee named Jack Moore an e-mail which stated:

As to Mr. Grimes [sic] specific complaint it does not have merit. He is unable to do the work and that is the reason he was terminated. In our view he was trying to take advantage of the situation and it gave us no incentive to make an exception to help him. His job was not eliminated because of lack of work therefore he is not eligible nor do we want to give him severance. That being said management doesn't plan to replace him until volumes pick up.

("UPBNA 2367a", attached to Pl.'s Surreply Br. at Tab 4.) Sometime after the date of this e-mail, another employee was hired to fill Mr. Grimes' position. (Pruzin Dep. at 17.)

On July 17, 2002, the EEOC dismissed Mr. Grimes' charge, and Mr. Grimes then timely filed this action. In his Amended Complaint, Mr. Grimes alleges that UPB discriminated against him in violation of the ADA by failing to accommodate his disability and retaliating against him. Arising from the same facts, Mr. Grimes also alleges breach of contract and defamation against UPB.² UPB now moves for summary judgment as to all of his claims, except the ADA retaliation claim.³

2 Pursuant to a stipulation by the parties, Mr. Grimes' claims of violations of the Age Discrimination in Employment Act and the Civil Rights Act of 1964 (Title VII) have been dismissed with prejudice.

3 In the Amended Complaint, Mr. Grimes' ADA claim is stated in Paragraph 43: "Defendant Bank's conduct herein constitutes a violation of the Americans with Disabilities Act, in its failure to provide reasonable accommodations to Plaintiff, as well as retaliation under said act, thought [sic] its withdrawal of its earlier accommodations." (Am. Compl. ¶ 43 (emphasis added).) He clearly asserts both a failure to accommodate claim and a retaliation claim. (The ADA's retaliation provision, 42 U.S.C. § 12203(a), is entirely distinct from its failure to accommodate provision, 42 U.S.C. § 12112(b)(5)(A).) UPB has only moved for summary judgment as to Mr. Grimes' failure to accommodate claim. No mention is made in either parties' briefs of Mr. Grimes' ADA retaliation claim. The retaliation claim will be addressed at the conclusion of this Entry.

II. Summary Judgment Standard

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7^th Cir. 1999).

III. Discussion

A. Evidentiary Objections

UPB objects to Mr. Grimes' submissions in opposition to the motion for summary judgment on two grounds: (1) Mr. Grimes' Response to Defendant's Statement of Material Facts Not in Dispute ("Response to SMF") often fails to cite to the record; and, (2) portions of Mr. Grimes' Affidavit are conclusory or contradict his previous deposition testimony.

1. Response to SMF

Southern District of Indiana Local Rule 56.1 requires summary judgment movants and non-movants to support all asserted material facts with appropriate citations to the record or evidence contained in an appendix to the brief. See S.D. IND. L.R. 56.1(a)-(b). These citations should be reasonably specific: "Such citation shall be by page or paragraph number or similar specific reference, if possible." Id. If the citations fail this specificity requirement, the court need not sift through the record searching for evidence to support a party's arguments. See S.D. IND. L.R. 56.1(e) ("The court has no independent duty to search and consider any part of the record not specifically cited in the manner described in sections (a) and (b) above."); see also Huey v. United Parcel Serv., Inc., 165 F.3d 1084, 1085 (7^th Cir. 1999) ("[J]udges need not paw over the files without assistance from the parties.").

Mr. Grimes' Response to SMF often runs afoul of the above specificity requirement. Most often, Mr. Grimes' citations simply direct the court to a large mound of paper. For instance, one citation states: "See brief and attachments relating to Mr. Grimes' ability to work." (Resp. to SMF 84.) Another citation states: "See plaintiff's brief and exhibits relating to Mr. Grimes' ability to perform his job duties." (Resp. to SMF 18.) Another states: "See plaintiff's brief and attachments relating to Mr. Grimes' status as a disabled person under the ADA." (Resp. to SMF 41.) In short, the vast majority of the time, Mr. Grimes — if he cites to anything at all — cites to "attachments" or "exhibits" by general topic rather than by specific name or citation.

No evidence is attached to Mr. Grimes' response brief, but he did contemporaneously file a four-inch-thick binder filled with deposition testimony, medical records, UPB memos and other evidence. The binder is divided into seven sections, though none of the sections are described as "relating to Mr. Grimes' ability to work," "Mr. Grimes' ability to perform his job duties," or "Mr. Grimes' status as a disabled person under the ADA." On a few occasions, Mr. Grimes does cite to a specific section, such as "See tab 5 of plaintiff's evidence." (Resp. to SMF 23-25.) This is marginally better, in that "tab 5" is only a one-inch-thick stack of documents, but it nonetheless is insufficient to satisfy the requirements of Local Rule 56.1.

The court will not address each of the deficient responses individually (there are 107 statements of material fact, most with responses). Instead, the court will simply consider all evidence which is properly cited in each party's statements of material fact and briefs in accordance with Local Rule 56.1 (Mr. Grimes' submissions do include some properly cited evidence). Also, the court has examined the evidence attached to Mr. Grimes' Surreply Brief, the documents directly attached to his statement of material facts, and his Affidavit. Finally, the court has perused the binder of evidence submitted by Mr. Grimes.⁴

4 With the Surreply Brief, Mr. Grimes submitted an index listing the titles of the documents in two of the seven sections of his binder. However, simply knowing the titles of each of the 124 reports, records and memos does not enlighten the court as to which of these Mr. Grimes believes supports which of his arguments and assertions.

2. Mr. Grimes' Affidavit

UPB also argues that portions of Mr. Grimes' Affidavit are deficient because they are conclusory or contradict his prior deposition testimony. Specifically, UPB objects to paragraphs 5-7 of Mr. Grimes' Affidavit.

Paragraph 5 of the Affidavit states: "All of these [medical] conditions substantially affect my ability to perform life tasks and limit my ability to work unless I am given reasonable accommodations to protect against further aggravation and injury." This is merely a conclusory restatement of the standard for determining whether an individual satisfies the ADA's threshold determination of "disability". "Bald and self-serving assertions in affidavits, unsubstantiated by any documentation or other testimony, are not sufficient to create a material issue of fact as to whether an impairment has substantially limited a major life activity." Stein v. Ashcroft, 284 F.3d 721, 726 (7^th Cir. 2002) (citation omitted); Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8^th Cir. 1997). The applicable law requires specifics as to how, and to what extent, Mr. Grimes' medical conditions limit his major life activities. The bald assertion in paragraph 5 adds virtually nothing to that inquiry.⁵ The degree to which the conclusory statement in paragraph 5 is substantiated with other evidence will be discussed below.

5 The claimant's affidavit in Stein was more detailed and expansive than Mr. Grimes', yet is was deemed too conclusory to defeat summary judgment. The affidavit in Stein stated that the claimant's impairment had caused "loss of sleep, impaired sexual relations, inability to participate in sports, inability to cut her food and inability to brush her hair." Stein, 284 F.3d at 726. In holding that this was insufficient to create an issue of fact as to whether plaintiff was disabled, the Seventh Circuit stated:

The only support for the existence of these physical limitations is Stein's own affidavit filed with the court, in which she merely states in conclusory fashion that these problems existed, without any factual support, examples, details, nor any indication as to whether the problems are currently extant or resolved, when, where or how the problems developed, how severe they were, or how long they may have lasted.

Id.

Paragraphs 6 and 7 of Mr. Grimes' Affidavit concern requests for accommodations. They state:

6. I requested accommodations for my medical conditions from Union Planters Bank to include different carts, lower mail sorting racks, a back brace, and periodic assistance with heavy lifting.

7. No accommodations were afforded to me except for periodic assistance in heavy lifting and light duty when I was recovering from carpal tunnel syndrome.

UPB argues that the statement in paragraph six contradicts Mr. Grimes' prior sworn deposition testimony. Mr. Grimes testified as follows:

Q. Did you have any discussions with either Theresa Johnson or anyone else at Union Planters Bank about, you know, what they should do to keep you?

A. No, there was no need to have any discussion because I was coming to work every day and working.

Q. You didn't ask them for any type of accommodation to help you?

A. No, because I had already went down to the trash and dug up accommodations to help, carts and stuff like that, people throwing them away in the building.

(Grimes Dep. at 180-81.)

If an affidavit contradicts the affiant's prior deposition testimony, then the affiant must explain the reason for the discrepancy; otherwise, the contradictory assertion will be entitled to no weight. See Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 623 (7^th Cir. 2002). In Beckel, the Seventh Circuit stated:

Affidavits, though signed under oath by the affiant, are typically . . . written by the affiant's lawyer, and when offered to contradict the affiant's deposition are so lacking in credibility as to be entitled to zero weight in summary judgment proceedings unless the affiant gives a plausible explanation for the discrepancy. The explanation, moreover, must come in the affidavit itself, not in a lawyer's musings, which are not evidence.

Id. (citations omitted); Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7^th Cir. 2001) ("[A] party may not attempt to survive a motion for summary judgment by manufacturing a factual dispute through the submission of an affidavit that contradicts prior deposition testimony.") (citation omitted). If a party were permitted "to create a genuine issue of material fact by changing his prior testimony: the very purpose of the summary judgment motion — to weed out unfounded claims, specious denials, and sham defenses — would be severely undercut." United States v. Torres, 142 F.3d 962, 968 (7^th Cir. 1998).

Mr. Grimes testified at his deposition that he did not "ask [UPB] for any type of accommodation to help [him]." He testified that he did not ask for help because, essentially, he helped himself in procuring accommodations. Five months later, Mr. Grimes signed an affidavit stating that he asked UPB for a number of accommodations: "different carts, lower mail sorting racks, a back brace, and periodic assistance with heavy lifting." It is possible to conceive of some plausible explanations for this discrepancy, but Mr. Grimes failed to attempt any explanation, either in his Affidavit or in either of his briefs. Because of this, the assertions in paragraph 6 of Mr. Grimes' Affidavit are entitled to no weight.

B. ADA Claim

The ADA requires employers to provide "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship." 42 U.S.C. § 12112(b)(5)(A); see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 193 (2002). Mr. Grimes claims that UPB failed to provide reasonable accommodations to his back condition and other medical problems.⁶

6 As noted above, Mr. Grimes also asserts a retaliation claim under the ADA. (Am. Compl. ¶ 43.) The retaliation claim will be addressed at the conclusion of this Entry.

UPB moves for summary judgment as to Mr. Grimes' failure to accommodate claim, arguing: (1) Mr. Grimes was not disabled within the meaning of the ADA; and, (2) even if he was disabled, no reasonable accommodations were available to UPB.

1. "Disability"

The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). A "disability" 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). "It is the plaintiff's burden on summary judgment to demonstrate that he can come up with evidence to show he could meet his ultimate burden of showing a recognized disability." Stein v. Ashcroft, 284 F.3d 721, 727 (7^th Cir. 2002) (citing Contreras v. Suncast Corp., 237 F.3d 756, 762 (7^th Cir. 2001) ("Contreras has the burden of presenting evidence to demonstrate that his impairment limited his ability to perform an entire class of jobs.")).

Mr. Grimes argues that he fits within the first definition, actual disability.⁷ In support, he relies upon his Affidavit, which states: "I suffer from the following medical conditions: Dyslexia, carpal tunnel, heart disease, back injury at L4-L5, emphysema, and chronic fatigue syndrome." (Grimes Aff. ¶ 4.) He also directs the court to "the extensive medical history" he submitted in his binder of evidence. (Grimes Resp. Br. at 5.) In his Surreply, Mr. Grimes selects a more manageable stack of records, but he still fails to point to any specifics in the records which support his argument.

7 In his briefs, Mr. Grimes fails to argue that either the second or third definitions ("record of" and "regarded as") apply to him. Therefore, the argument is waived. Cf. Stein v. Ashcroft, 284 F.3d 721, 725 (7^th Cir. 2002) ("We will not search the record in an attempt to make Stein's arguments for her."); Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 951 (7^th Cir. 2000) (same) ("Mr. Moore, however, fails to mention walking as an affected major life activity in the argument section of his appellate brief. Consequently, Mr. Moore has waived this argument.") (citing Sanchez v. Henderson, 188 F.3d 740, 746 n. 3 (7^th Cir. 1999) (stating that failure to mention theories in argument section of brief resulted in waiver)); Tyler v. Runyon, 70 F.3d 458, 465 (7^th Cir. 1995) ("[I]f an appellant fails to make a minimally complete and comprehensible argument for each of his claims, he [or she] loses regardless of the merits of those claims as they might have appeared on a fuller presentation.").

As set out in the Background section of this Entry, there is medical documentation establishing Mr. Grimes' back injury and carpal tunnel syndrome. There is at least one mention of Mr. Grimes having occasional chest pain and a heart catheterization at some point in the past. (Pruzin Aff., Ex. 8.) The court cannot locate any medical records addressing Mr. Grimes' dyslexia, emphysema and chronic fatigue syndrome.⁸ Yet, even if the medical records were replete with notations of all of his conditions, "[i]t is insufficient for individuals attempting to prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment." Toyota Motor Mfg., 534 U.S. at 198.

8 There are a few mentions of chronic fatigue syndrome and emphysema in Mr. Grimes' deposition, as discussed below. (Grimes Dep. at 157-58, 177.)

In Toyota, the Supreme Court made clear that a plaintiff must present more than evidence of a diagnosis; he must show the limitations the impairment actually causes him. "[T]he ADA requires those `claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial.'" Id. (quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999) (holding that monocular vision is not invariably a disability, but must be analyzed on an individual basis, taking into account the individual's ability to compensate for the impairment)) (citing 29 CFR pt. 1630, App. § 1630.2(j) (2001) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual")). The Court further stated:

An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person. Carpal tunnel syndrome, one of respondent's impairments, is just such a condition. While cases of severe carpal tunnel syndrome are characterized by muscle atrophy and extreme sensory deficits, mild cases generally do not have either of these effects and create only intermittent symptoms of numbness and tingling. . . . Given these large potential differences in the severity and duration of the effects of carpal tunnel syndrome, an individual's carpal tunnel syndrome diagnosis, on its own, does not indicate whether the individual has a disability within the meaning of the ADA.

Toyota Motor Mfg., 534 U.S. at 199 (citation omitted).

All of Mr. Grimes' medical conditions — dyslexia, carpal tunnel syndrome, heart disease, back injury, emphysema, and chronic fatigue syndrome — are of the type discussed in Toyota: conditions which are disabling in some cases but not in others.⁹ See Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 952 (7^th Cir. 2000) ("Some impairments may be disabling for particular individuals but not for others, depending upon the stage of the disease or disorder, the presence of other impairments that combine to make the impairment disabling or any number of other factors.") (quotation omitted). Mr. Grimes must come forward with additional evidence sufficient for a jury to make an individualized assessment of the effect of his impairments in his case.

9 Mr. Grimes cites to two cases, Bartlett v. New York State Board of Law Examiners 226 F.3d 69 (2^nd Cir. 1998) and Merry v. A. Sulka Co., 953 F. Supp. 922 (N.D. Ill. 1997), for the proposition that "dyslexia may result in a substantial impairment under the ADA." The court agrees with that proposition. Dyslexia, like carpal tunnel syndrome, may be substantially limiting or it may not. In Bartlett and Merry, each claimant presented extensive evidence, including evidence from expert witnesses, about the nature and extent of the limitations caused by the dyslexia. In stark contrast, other than a brief mention in his Affidavit and a single mention by Ms. Pruzin that Ms. Johnson told her Mr. Grimes had dyslexia (Pruzin Dep. at 9), Mr. Grimes does not specifically cite to any evidence even establishing that he has dyslexia, much less how it limits any of his activities.

The evidence of the limitations imposed on Mr. Grimes due to his medical conditions, at the time he was terminated,¹⁰ is as follows. Dr. Huler assigned a 2% whole body impairment rating based on Mr. Grimes' back pain and released Mr. Grimes for "modified duty work," consistent with the restrictions of no lifting in excess of 20 pounds and no repetitive lifting, twisting or bending. Dr. Huler's assessment was in part based on a physical therapist's functional capacity evaluation of Mr. Grimes. The physical therapist concluded that Mr. Grimes fell into the "medium physical demand level," and could not perform repetitive forward bending. He noted that Mr. Grimes could occasionally bend, lift 42 pounds from the floor to his waist, lift 35 pounds up to his shoulder, carry 40 pounds 20 yards, and push/pull 190 pounds. Mr. Grimes seems to have the least restrictive view of his own limitations. He testified that on the day of the functional capacity evaluation, he felt like he had the flu and felt like his chronic fatigue syndrome "kicked in," and might have been worse than normal. (Grimes Dep. at 157-58.)¹¹ He testified that he could lift up to 45 or 50 pounds occasionally, 35 pounds frequently and 20 pounds constantly. And he also testified that none of his restrictions prevented him from doing his job (with the exception of needing assistance with heavy lifting), despite his own statement to the physical therapist that his job required him to "[p]erform bending, squatting or kneeling, reaching, sitting, standing, walking, twisting, U/LE movements, gripping, pushing/pulling mail tubs on a frequent to continuous basis." (Pl.'s Resp. to Statement of Material Facts, Ex. 1, at "UPBNA 0247.") He further testified he is able to care for his own personal needs, cook, house-clean, shop, mow his lawn and build stained-glass windows.

10 This is the relevant time for making the determination of whether a plaintiff has a disability. See Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7^th Cir. 1998) ("The determination as to whether an individual is a `qualified individual with a disability' must be made as of the time of the employment decision.") (citation omitted). So, for instance, the fact that Mr. Grimes had more severe restrictions during the month or so immediately after his carpal tunnel release is irrelevant to this determination.

11 Mr. Grimes also briefly mentioned his chronic fatigue syndrome (and emphysema) related to an unspecified operation he underwent in November 2003, 21 months after UPB terminated his employment. (Grimes Dep. at 177.)

In determining whether this evidence is sufficient to raise a triable issue of fact as to whether Mr. Grimes has a disability, the court must consider whether he is substantially limited in one or more of the major activities of life. See 42 U.S.C. § 12102(2) (a "disability" is "a physical or mental impairment that substantially limits one or more of the major life activities of [the plaintiff]"). Mr. Grimes must demonstrate that the impairment poses a permanent or long-term limitation on a major life activity, meaning that his impairment "prevents or severely restricts [him] from doing activities that are of central importance to most people's daily lives." Toyota Motor Mfg., 534 U.S. at 198. "Substantially limits" means that the person is either unable to perform a major life activity or is significantly restricted in the duration, manner, or condition under which the individual can perform a particular major life activity, as compared to the average person in the general population. See 29 C.F.R. § 1630.2(j); Contreras v. Suncast Corp., 237 F.3d 756, 762 (7^th Cir. 2001). The EEOC's regulations define "major life activities" as functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. See 29 C.F.R. § 1613.702(c); Stein v. Ashcroft, 284 F.3d 721, 724-25 (7^th Cir. 2002).

In Mr. Grimes' submissions, he argues that his impairments substantially limit three major life activities: "normal activities," "working" and "lifting".¹² The category of "normal activities" would seem to be merely a restatement of the term, "major life activities." See Toyota Motor Mfg., 534 U.S. at 197 ("`Major life activities' . . . refers to those activities that are of central importance to daily life."). Mr. Grimes gives no explanation of what he means by "normal activities," and points to no case where such a term is used to describe a major life activity. But regardless of whether it is an appropriate classification, Mr. Grimes has not produced enough evidence for a jury to reasonably find that he is substantially limited in the normal, everyday activities of living. He cares for his personal needs, cooks, cleans, shops, cares for a dog and builds stained-glass windows. He named nothing that he could not do, other than heavy lifting (discussed below).

12 In his Response Brief, Mr. Grimes claims he "suffers from a variety of medical conditions which have a substantial effect on his ability to work and which limit his normal activities." (Resp. Br. at 5.) In his Surreply Brief, he states he "was clearly limited in his ability to perform certain life functions, in particular the occasional lifting of heavy mail sacks." (Surreply Br. at 2.) The court will interpret these statements to mean that Mr. Grimes is claiming he is substantially limited in the major life activities of "working", "normal activities" and "lifting".

Though Mr. Grimes must move slowly when mowing the lawn and walking up and down stairs (to and from his bedroom) and he has some pain when he sits for long periods of time, he still can successfully engage in those activities. (Grimes Dep. at 170-76.) This is not sufficient for a jury to find he is substantially limited in "normal activities." Cf. Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 951 (7^th Cir. 2000) (plaintiff's arthritis, which "affects more the `rate and pace' of his activities as opposed to his ability to perform them," did not significantly restrict his ability to walk when compared with the ability of the average person) (citing Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5^th Cir. 1999) (holding that "walk[ing] with a limp[,] mov[ing] at a significantly slower pace than the average person" and having difficulty walking in extreme cold did not constitute a substantial impairment as required by the ADA) (internal quotation marks omitted); Kelly v. Drexel Univ., 94 F.3d 102, 106 (3d Cir. 1996) (holding that an individual who could not walk "more than a mile or so," "certainly couldn't jog," and had to "pace [himself] slower" when going upstairs was not substantially limited in the major life activity of walking) (internal quotation marks omitted)). Mr. Grimes still chooses to keep his bedroom on the second floor of his house, and still chooses to mow his own lawn. Cf. Szmaj v. Am. Tel. Tel. Co., 291 F.3d 955, 956-57 (7^th Cir. 2002) ("[D]iscomfort and disability are not synonyms. Otherwise a very large fraction of the workforce would be disabled. . . . This plaintiff's discomfort [while reading] clearly is not that excruciating; else he would not have worked so many years in jobs that required him to spend a substantial amount of his workday reading.").

Working and lifting have more frequently been claimed as major life activities. Though courts have questioned the use of both working and lifting as a major life activity, see Toyota Motor Mfg., 534 U.S. at 200 ("Because of the conceptual difficulties inherent in the argument that working could be a major life activity, we have been hesitant to hold as much, and we need not decide this difficult question today."); Mays v. Principi, 301 F.3d 866, 869-70 (7^th Cir. 2002) ("We doubt whether lifting more than 10 pounds is . . . [a major life] activity."),¹³ subsequent cases have proceeded under the assumption that working and lifting are major life activities, at least when the employer fails to raise the issue (as UPB has failed to do here), see Peters v. City of Mauston, 311 F.3d 835, 843 (7^th Cir. 2002) (working); Mack v. Great Dane Trailers, 308 F.3d 776, 781 n. 1 (7^th Cir. 2002) (lifting).

13 In Mays, the employee had permanent restrictions of "sedentary work, maximum lifts of 10 pounds, [and] no work at or above shoulder level." 301 F.3d at 868. The Seventh Circuit stated:

A disability within the meaning of . . . the Americans with Disabilities Act is a condition that . . . substantially prevents a person from engaging in one of the major activities of life, such as walking, seeing, or reproduction. It is not as if the plaintiff were missing an arm. The physician who determined the severity and duration of her back injury thought she could return to her job as a lightduty nurse. The number of Americans restricted by back problems to light work is legion. They are not disabled.

Any challenge to the plaintiff's claim to be disabled has been forfeited, but we have thought it prudent to register our doubts lest our opinion be assumed by its silence to endorse the proposition that a back injury that merely limits a person's ability to lift heavy objects creates a disability within the meaning of federal disability law.

Id. at 869-70 (quotations and citations omitted). As discussed below, this conclusion could be seen to be at odds with other Seventh Circuit cases, such as Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7^th Cir. 1996). In Cochrum, the court held that a reasonable jury could find the plaintiff disabled based only upon the evidence of his work restrictions of no heavy lifting, no overhead work and no pulling and pushing out from his body. See id. at 911. In making its holding, the Cochrum court relied upon the "Interpretive Guidance" accompanying 29 C.F.R. § 1630.2(j), which states:

An individual is substantially limited in working if the individual is significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes. . . . For example, an individual who has a back condition that prevents the individual from performing any heavy labor job would be substantially limited in the major life activity of working. . . . This would be so even if the individual were able to perform jobs in another class.

Cochrum, 102 F.3d at 911.

The evidence most favorable to Mr. Grimes in this regard is Dr. Huler's work release restricting Mr. Grimes to no lifting over 20 pounds and no repetitive lifting, twisting or bending. Ironically, the evidence most damaging to Mr. Grimes' cause is his own testimony, where he tried to discredit these restrictions by stating that he was sick on the day of the functional capacity evaluation on which Dr. Huler's restrictions were based. Mr. Grimes also insisted he could fully perform his job (which he told the physical therapist involved frequent to continuous bending and twisting), with the exception of the heavy lifting. He testified he could lift up to 45 or 50 pounds occasionally and 20 pounds constantly. Of course, on summary judgment, the court must view any conflict in the evidence in the light most favorable to the nonmovant, but that rule would seem to be strained when the evidence less favorable is the testimony of the nonmovant himself (who also is in a better position to know his own physical thresholds and limitations than a consulting doctor). This is especially true when, in his summary judgment brief, Mr. Grimes disavows Dr. Huler's opinion, arguing that Dr. Huler "mischaracterized" the functional capacity evaluation in his report. (Pl.'s Br. in Opp'n to Summ. J. at 7.)

This thorny issue can be avoided here, because, as will be discussed, the ultimate resolution of the summary judgment motion would be the same regardless of whether the court relies on Dr. Huler's restrictions or Mr. Grimes' own estimate of his capacity.

In Mack v. Great Dane Trailers, 308 F.3d 776 (7^th Cir. 2002), the employee had work restrictions of "no lifting" and/or "no kneeling or squatting." Id. at 779.¹⁴ The court reversed a jury verdict for the employee on the grounds that the employee had not produced evidence he was substantially limited in the major life activity of lifting. The court discussed the Supreme Court's Toyota decision and concluded, " Toyota's point was that an inability to perform `occupation-specific' tasks does not necessarily show an inability to perform the central functions of daily life." Mack, 308 F.3d at 781. The court then discussed the application of Toyota to the facts of its case:

14 These restrictions were written in different reports by the same doctor, and arguably the "no kneeling or squatting" restriction replaced the "no lifting" restriction. See Mack, 308 F.3d at 779. But the court assumed that a jury could still rely on the "no lifting" restriction in coming to its decision. See id. at 782.

[T]hat analysis applies equally to the work-related restriction at issue here. An inability to lift heavy objects may disqualify a person from particular jobs but does not necessarily interfere with the central functions of daily life. There may well be cases in which, because of the nature of the impairment, one could, from the work-restriction alone, infer a broader limitation on a major life activity. An inability to lift even a pencil on the job might suggest an inability to lift a toothbrush, for example, or to otherwise care for oneself. . . . But the work restriction in this case was not nearly of that nature, and instead fits neatly into the sort of occupation-specific limitation at issue in Toyota.

Id. (citing Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 617 (8^th Cir. 1997) (holding mail-sorter with carpal tunnel syndrome who was restricted from lifting 20 pounds or performing repetitive activities with either hand did not demonstrate triable dispute regarding substantial limitation on major life activity); Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4^th Cir. 1996) (holding as a matter of law that "twenty-five pound lifting limitation — particularly when compared to an average person's abilities — does not constitute a significant restriction on one's ability to lift, work, or perform any other major life activity"); Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311, 1319 (8^th Cir. 1996) (holding plaintiff failed to show he was substantially limited in major life activities where "a 25-pound lifting restriction was the only medical limitation placed upon [plaintiff's] activities")); see also Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1114-17 (D.C. Cir. 2001) (reversing jury verdict for manual laborer whose back injury prevented him from lifting more than 20 pounds, or from returning to his job as a custodian, because he failed to satisfy burden of showing that injury to back had substantially limited his ability to work, so as to make him "disabled" within the meaning of the ADA); McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6^th Cir. 1997) (holding woman with carpal tunnel syndrome and 20-pound lifting restriction not disabled because "at best, her evidence supports a conclusion that her impairment disqualifies her from only the narrow range of assembly line manufacturing jobs that require repetitive motion or frequent lifting of more than ten pounds"). The Seventh Circuit in Mack concluded that because the employee's "no lifting" and "no kneeling or squatting" limitations were given in the context of work-related restrictions, the employee needed to produce additional evidence that he "was substantially limited in the sort of lifting that is central to most people's daily life." Mack, 308 F.3d at 782. In other words, "[u]nder Toyota, evidence of such a restriction, without more, is insufficient to show a substantial limitation on a major life activity." Id. at 781. The court held that because the employee failed to come forward with additional evidence, the jury's verdict for the employee had to be overturned. See id. at 783-84.

Similarly, Mr. Grimes' restrictions on lifting in excess of 20 pounds and repetitive lifting, twisting and bending were stated in the context of his ability to work. Dr. Huler saw Mr. Grimes in the context of Mr. Grimes' worker's compensation claim. The functional capacity evaluation (which formed the basis of Dr. Huler's restrictions), performed at the "Progressive Work Center," required Mr. Grimes to perform a job simulation. (Pruzin Aff., Ex. 12.) And Dr. Huler's report, issuing his restrictions, released Mr. Grimes to "modified duty work" according to the restrictions.

The holding of Mack squarely applies here. As in Mack, Dr. Huler's work-restriction alone does not necessarily imply a broader limitation on a major life activity. This is not a case where the employee cannot lift a pencil. See Mack, 308 F.3d at 781. Mr. Grimes' "inability to perform `occupation-specific' tasks does not necessarily show an inability to perform the central functions of daily life." Id. Because of this, it became incumbent on Mr. Grimes to produce evidence of his limitations or inability to perform the central functions of daily life. As discussed above (when addressing Mr. Grimes' "normal activities" argument), the scant evidence concerning his limitations on the central functions of life fail to create an issue of fact as to whether Mr. Grimes was disabled within the meaning of the ADA.¹⁵

15 The same reasoning applies — but with greater force — if the court rejects Dr. Huler's work restrictions in favor of Mr. Grimes' own estimation of his capabilities.

The case becomes a more difficult one when considering whether there is an issue of fact as to whether Mr. Grimes is substantially limited in the major life activity of working.¹⁶ When the major life activity under consideration is that of working, "a plaintiff must demonstrate that she was significantly restricted in the 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." Stein v. Ashcroft, 284 F.3d 721, 725 (7^th Cir. 2002) (citing, inter alia, Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999) (a plaintiff must show, "at a minimum," that she is "unable to work in a broad class of jobs")). "The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Sutton, 527 U.S. at 491 (quoting 29 C.F.R. § 1630.2(j)(3)(I)). "In other words, the impairment must substantially limit employment generally." Stein, 284 F.3d at 725 (citation omitted).

16 Note that the cases discussed above, such as Mack and the Supreme Court's Toyota Motor Manufacturing, did not address the major life activity of working.

In Stein, the Seventh Circuit held that the plaintiff's "inability to lift and carry heavy boxes of files to the extent necessary to perform her duties outside the office does not rise to the level of a restriction on her ability to work in a broad class of jobs." Id. at 725-26 (citing Contreras v. Suncast Corp., 237 F.3d 756, 763 (7^th Cir. 2001) (holding that the existence of a physician-imposed lifting restriction is insufficient to establish that an individual is precluded from working in the `broad class of jobs' necessary to establish the existence of a disability)); see also Wooten v. Farmland Foods, 58 F.3d 382, 384, 386 (8^th Cir. 1995) (plaintiff not substantially limited in major life activity of working where plaintiff was restricted to light duty with no working in cold environment and no lifting items weighing more than 20 pounds).

And in Peters v. City of Mauston, 311 F.3d 835 (7^th Cir. 2002), the court explained that the employee must present some evidence showing the class or broad range of jobs he is restricted from working:

It is clear, however, that an employer does not regard a person as disabled simply by finding that the person cannot perform a particular job. . . . A terminated employee must present some evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs from which an individual would be excluded because of an impairment.

Though this Court declined in EEOC v. Rockwell International Corp. to adopt a per se rule that a plaintiff cannot prevail without qualitative evidence of the local job market, we still require that at least some such evidence be presented.

Peters, 311 F.3d at 843-44 (citing Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 507 (7^th Cir. 1998) ("This is not an onerous requirement, but it does require at least some evidence from which one might infer that [the plaintiff] faced `significant restrictions' in [his] ability to meet the requirements of other jobs")).

Cases such as Peters, Stein and Contreras require a plaintiff to produce evidence (above and beyond just a physician-imposed work restriction) he is precluded from working a class of jobs. Other than the evidence of his limitations (mainly Dr. Huler's work restriction, but also his own testimony and the other medical evidence), there is nothing which might show Mr. Grimes is precluded from working a class of jobs as compared to the average person having comparable training, skills and abilities. Mr. Grimes has provided no qualitative evidence of the local job market, nor any other similar evidence of the requirements of a class or broad range of other jobs — or whether Mr. Grimes was significantly restricted in his ability to perform them.¹⁷ See Webb v. Clyde L. Choate Mental Health Dev. Ctr., 230 F.3d 991, 997 (7^th Cir. 2000) (upholding summary judgment against psychologist suffering from severe asthma, osteoporosis, and a weakened immune system because he "ha[d] not presented evidence that his condition prevents him from performing a class of jobs"); see also Taylor v. Nimock's Oil Co., 214 F.3d 957, 961 (8^th Cir. 2000) (concluding former cashier with 40-hour week and 10-pound carry limit did not establish disability because she "presented no evidence to create a genuine issue of material fact about whether she could perform a class of jobs with her restrictions").

17 In his deposition, Mr. Grimes mentioned that he has applied for some jobs, but has not received any offers. (Grimes Dep. at 166-67.) He does not cite to this evidence, mention it, or argue that it shows he was significantly restricted in his ability to perform a broad class or range of jobs. But the court notes that even if he had, this evidence is insufficient to create an issue of fact. See Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1115 (D.C. Cir. 2001). The court in Duncan stated:

[S]parse anecdotal evidence, however, cannot support the required jury finding that Duncan was substantially limited in his ability to find work because his impairment disqualified him from a substantial class or broad range of jobs in the Washington area. At most Duncan's testimony shows that he was not qualified for the particular kind of job — truck driver — for which he chose to apply. It tells us nothing about whether he was qualified for the many other jobs in the Washington metropolitan employment pool. Without evidence of the number and kinds of jobs available to Duncan the jury had no basis to find he was disqualified from a substantial class or broad range of them.

Id. (citing Sutton, 527 U.S. at 492 ("To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice.")).

So the only way in which summary judgment may be defeated on the issue of whether Mr. Grimes is substantially limited in the major life activity of working is whether a jury may infer, based on Dr. Huler's restrictions, that Mr. Grimes cannot perform a class or broad range of jobs. At least three times, the Seventh Circuit has decided that a reasonable jury could conclude that the plaintiff's impairment substantially limits his ability to work, based only upon physician-imposed work restrictions.

Of most relevance to this case is Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7^th Cir. 1996), when the court held that the plaintiff had raised a genuine issue of fact as to whether he was disabled, stating that, "[t]he physical restrictions Cochrum's physician placed upon him — no overhead work, heavy lifting, or pulling and pushing out from his body — might apply to a broad range of jobs, and are more than job specific." Id. at 911 (affirming grant of summary judgment on other grounds); see also DePaoli v. Abbott Labs., 140 F.3d 668, 673 (7^th Cir. 1998) (two doctors' reports agreed that the plaintiff had become disabled from performing virtually any employment that required repetitive motions of her right hand; court found that indicated that the plaintiff was precluded from a wide group of jobs in the Chicago area economy: virtually any assembly line job that required repetitive movement); Best v. Shell Oil Co., 107 F.3d 544, 548 (7^th Cir. 1997) (plaintiff's knee injury not only made it difficult for him to drive the particular kind of truck that his employer used, but had prompted a doctor as well as a workplace evaluator to conclude that he should look for a different line of work altogether).

It is possible to look at the Cochrum/ DePaoli/ Best holdings (inferring substantial limitation on a broad range of jobs from only a physician-imposed restriction) as being at odds with the Peters/ Stein/ Contreras holdings (declining to infer substantial limitation on a broad range of jobs from just a physician-imposed restriction). But in Contreras, the court explained the difference between the two lines of cases. The Contreras court distinguished Cochrum, DePaoli and Best as follows: "[W]hat is significant about these cases is the court's emphasis on the breadth of the restrictions placed on the plaintiffs and their doctors' recommendations concerning how their respective injuries would affect their ability to obtain other employment." Contreras v. Suncast Corp., 237 F.3d 756, 763 n. 5 (7^th Cir. 2001). The court continued: "In contrast, Contreras's restrictions [no lifting in excess of 45 pounds for a long period of time, no strenuous work, no driving of a forklift for more than four hours a day,] are quite specific and he has offered no evidence — other than the restrictions themselves — to show that his back injury limits his ability to engage in a class of jobs." Id.

The issue, then, is whether the work restrictions are broad, as in Cochrum (no overhead work, heavy lifting, or pulling and pushing out from his body) and DePaoli (no repetitive motion of the right hand), or specific, as in Contreras (no lifting in excess of 45 pounds for a long period of time, no strenuous work, no driving of a forklift for more than four hours a day) and Stein (no lifting and carrying of heavy boxes).

In Mr. Grimes' case, Dr. Huler's restrictions — no lifting in excess of 20 pounds, no repetitive lifting, twisting and bending — were stated in a broad manner, more similar to the restrictions in Cochrum and DePaoli than those in Contreras and Stein. On the other hand, Dr. Huler's restrictions were presented in a job-specific context. Unlike the physician who issued the restrictions in Cochrum, Dr. Huler was not the plaintiff's personal physician; he was a consulting physician expressing an opinion at the behest of UPB's worker's compensation insurer. Moreover, Dr. Huler's opinion was based on the functional capacity evaluation, which was job specific: the physical therapist performing the evaluation created a "job simulation," whereby Mr. Grimes was asked to perform tasks tailored to the requirements of a UPB Postal Clerk I. See Peters, 311 F.3d at 840 (the plaintiff's physician-imposed work restrictions were based on the results of a functional capacity evaluation).

But on balance, the broadness of Dr. Huler's restriction makes this case so similar to Cochrum that it controls. The limit of lifting no more than 20 pounds, plus no repetitive lifting, twisting and bending, is sufficiently restrictive to allow a jury to infer that Mr. Grimes would be precluded from working in a broad range of jobs. See Lutter v. Rinella Beverage Co., 2004 WL 419826, at *9 (N.D. Ill., Feb. 5, 2004) ("Lutter was prohibited from lifting more than 25 pounds, and he was restricted from repetitive bending and twisting, as well as standing for long periods of times. Lutter has presented evidence similar to that presented in Cochrum, Best, and DePaoli, and the Seventh Circuit held that with such evidence a reasonable jury may find a plaintiff was precluded from performing the class of heavy labor jobs). Therefore, based upon Dr. Huler's restrictions, there is a genuine issue of material fact as to whether Mr. Grimes was substantially limited in the major life activity of working.¹⁸

18 It is worth noting that if the court were to discount Dr. Huler's restrictions in favor of Mr. Grimes' own estimation of his capabilities, this case would become much more like Contreras, Stein and Peters, and Mr. Grimes would have failed to create a genuine issue of fact as to whether he was "disabled" within the meaning of the ADA.

2. Reasonable Accommodation

As set out above, the ADA defines discrimination to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A); see also McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7^th Cir. 1997). To establish a prima facie case for failure to accommodate under the ADA, Mr. Grimes must show that: (1) he was or is disabled; (2) UPB was aware of his disability; and (3) he is a qualified individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that he held with UPB. See Feldman v. Am. Mem'l Life Ins. Co., 196 F.3d 783, 789 (7^th Cir. 1999). The employee bears the ultimate burden of proving that a reasonable accommodation existed. See Mays v. Principi, 301 F.3d 866, 870-71 (7^th Cir. 2002).

Mr. Grimes claims that UPB discriminated against him in violation of the ADA by failing to afford him one of two reasonable accommodations: allowing him to keep his Postal Clerk I position with heavy lifting assistance being provided by his co-workers; or, reassignment to a vacant position within his capabilities. UPB argues that there was no reasonable accommodation which could have allowed Mr. Grimes to perform the essential functions of the Postal Clerk I position, and that it presented Mr. Grimes with a list of all vacant positions available at UPB, but Mr. Grimes declined to be considered for any of them.

For this inquiry, unless noted, the court considers Mr. Grimes' true limitations to be those set out by Dr. Huler.¹⁹ Mr. Grimes' unit supervisor, Mr. Gardner, performed a detailed analysis of the essential functions of the Postal Clerk I position. It is clear from the job analysis that the essential functions of the job violated Dr. Huler's work restrictions by requiring repetitive bending, twisting and lifting (including 5-8 daily bags of interoffice mail weighing from 30-50 pounds, as well as some outgoing branch bags and package deliveries weighing in excess of 20 pounds). Even under Mr. Grimes' liberal view of his capabilities, he testified he needed lifting assistance with the heavier items. He confirmed this in his Affidavit: "I am fully able to perform all of my job duties as a mail clerk if I am provided the occasional assistance in heavy lifting." (Grimes Aff. ¶ 9; see also Grimes Dep. at 233.) The fact that the lifting of heavy items was only occasional (though a regular daily occurrence) does not affect its status as an essential function. See Peters v. City of Mauston, 311 F.3d 835, 845 (7^th Cir. 2002) ("Even Peters admits that heavy lifting is required at times, and his argument that such lifting is infrequent does not preclude it from being an essential function of the job.") (citing Basith v. Cook County, 241 F.3d 919, 929 (7^th Cir. 2001) ("an essential function need not encompass the majority of an employee's time, or even a significant quantity of time, to be essential")).

19 This is the only view of the evidence which allows Mr. Grimes to survive summary judgment on the threshold issue of whether he was disabled — as noted above, if a jury were to reject Dr. Huler's restrictions in favor of Mr. Grimes' own more generous version of his capabilities, then the jury could not reasonably find him disabled based on the evidence in the record.

So if Mr. Grimes could not perform the essential functions of his job, the question becomes whether there were any reasonable accommodations which would have allowed him to do so. If Dr. Huler's restrictions are accepted, no accommodations have been suggested which would allow Mr. Grimes to perform his job, absent having other employees perform many of the essential functions of his job. And even if Mr. Grimes' version of his capabilities is accepted, he testified (in both his deposition and his Affidavit) that in order to perform his job duties, he needed assistance with heavy lifting. Mr. Grimes argues that providing assistance in heavy lifting was an accommodation that the ADA required UPB to provide. But in Peters, the Seventh Circuit rejected this argument: "Peters . . . requested that someone else do the heaviest lifting for him if he could not handle it, which the district court found unreasonable. We agree and hold that such a request is unreasonable because it requires another person to perform an essential function of Peters' job." Peters, 311 F.3d at 845 (citing Hansen v. Henderson, 233 F.3d 521, 523-24 (7^th Cir. 2000) (stating that an employer need not create a new job or provide a helper as an accommodation to a disabled employee); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7^th Cir. 1997) ("[T]o accommodate him [the employer] would have to hire someone else to help perform some duties. That clearly was beyond a reasonable accommodation."); Cochrum v. Old Ben Coal Co., 102 F.3d 908, 913 (7^th Cir. 1996) ("[R]easonable accommodation does not encompass reallocation of essential job functions.")); see also Jay v. Internet Wagner Inc., 233 F.3d 1014, 1017 (7^th Cir. 2000) (an employer is not required to shuffle job responsibilities amongst employees to create a position to accommodate an employee's disability).

Mr. Grimes stated in his Affidavit that "[o]ther employees of my unit at UPB also had duties to assist in mail handling and routinely did so." (Grimes Aff. ¶ 9.) Assuming this is so, it does not necessarily follow that the other employees in the mailroom had duties to assist with the mail handling functions assigned to Mr. Grimes. Ms. Johnson stated in her Affidavit:

In addition to supervising the Postal Clerk I position, I also supervised three lockbox clerks. . . . These employees are responsible for lockbox operations, which involve handling some incoming U.S. Postal Service Mail, and UPS and Fed Ex mail. They also perform inter-bank clearing work coming from other banks and process lockbox payments.

(Johnson Aff. ¶ 6.) There is no indication that the mail the lockbox clerks handle is the same mail the Postal Clerk I handles, or, more importantly, that the mail handled by the lockbox clerks includes the heavy lifting assigned to the Postal Clerk I. But even if it was, it is nonetheless one of the essential functions of the Postal Clerk I position to repeatedly lift bags weighing 30-50 pounds. There is no evidence that UPB suddenly made heavy lifting one of the requirements of Mr. Grimes' job upon learning of his back injury. Absent some evidence of pretext, courts "do not second-guess the employer's judgment as to the essential functions." Peters, 311 F.3d at 845 (citing DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7^th Cir. 1998)). Heavy lifting was one of the essential functions of Mr. Grimes' job. "[R]easonable accommodation does not encompass reallocation of essential job functions." Cochrum v. Old Ben Coal Co., 102 F.3d 908, 913 (7^th Cir. 1996); see also Watson v. Lithonia Lighting, 304 F.3d 749, 752 (7^th Cir. 2002) ("[I]t is not `reasonable' to require an employer to create new jobs tailored to each employee's abilities.") (citations omitted).

Moreover, even if, as Mr. Grimes stated in his Affidavit, his "unit at UPB was overstaffed at the time of [his] termination" (Grimes Aff. ¶ 10), and even if UPB in the past chose to assign some of those overstaffed employees to perform some of the essential functions of Mr. Grimes' job, that did not commit UPB to continuous overstaffing for the indefinite future. UPB allocated a portion of the time of its lockbox clerks, as well as that of Ms. Johnson (Johnson Aff. ¶ 13) and Mr. Gardner (Gardner Dep. at 11), to performing some of the essential functions of Mr. Grimes' job. UPB did this during the time that Mr. Grimes' restrictions were temporary. (Johnson Aff. ¶ 13.) Once Mr. Grimes' restrictions became permanent (at least according to the assessment of Dr. Huler), it was not a violation of the ADA for UPB to discontinue its overstaffing and Mr. Grimes' light-duty assignments. See Malabarba v. Chi. Tribune Co., 149 F.3d 690, 696-97 (7^th Cir. 1998) ("[a]lthough the ADA provides that reassignment to a vacant position may constitute a reasonable accommodation, it does not require that employers convert temporary `light-duty' jobs into permanent ones"; "the ADA does not require that employers transform temporary work assignments into permanent positions"). The opposite result would have the effect of discouraging employers from ever providing temporary light-duty assignments to injured workers for fear that those assignments would become permanent by force of law. Cf. Watson v. Lithonia Lighting, 304 F.3d 749, 752 (7^th Cir. 2002) ("Watson contends that, if an employer goes this far [to provide temporary light-duty assignment], it must allow an injured employee to occupy the light-duty (or limited-task) position indefinitely. Yet this would be bad news for the rest of the labor force.").

Mr. Grimes also argues that UPB discriminated against him in violation of the ADA by failing to reassign him to a vacant position within his capabilities. "The ADA may require an employer to reassign a disabled employee to a different position as reasonable accommodation where the employee can no longer perform the essential functions of their current position." Malabarba, 149 F.3d at 699 (quoting Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7^th Cir. 1996). The duty to reassign is limited:

This rule is not without `significant limitations,' however. An employer may be obligated to reassign a disabled employee, but only to vacant positions; an employer is not required to `bump' other employees to create a vacancy so as to be able to reassign the disabled employee. Nor is an employer obligated to create a `new' position for the disabled employee.

Id.

"The plaintiff bears the burden of showing that a vacant position exists and that the plaintiff is qualified for that position." McCreary v. Libby-Owens-Ford Co., 132 F.3d 1159, 1165 (7^th Cir. 1998) ("McCreary needed to show that a vacant position in quality control was available at the time LOF fired him.") (citing Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7^th Cir. 1996) (holding that the relevant time is the time of the employment decision)). In this case, Mr. Grimes had to show that a vacant position existed at UPB at the time he was terminated, and that he was qualified for that position. He has not done so.

At the time of Mr. Grimes' discharge, UPB presented Mr. Grimes with a list of all the currently vacant positions at the company. Mr. Grimes refused to be considered for any of them; he testified in his deposition that he was not qualified for any of the jobs, because he had not been trained for them. However, "[t]he Americans with Disabilities Act does not require employers to offer special training to disabled employees." Williams v. United Ins. Co. of Am., 253 F.3d 280, 282 (7^th Cir.), cert. denied, 534 U.S. 1025 (2001). Mr. Grimes has failed to put forth any evidence of a vacant position for which he would have been qualified and would have accepted. Because of this, his argument that UPB discriminated against him by failing to reassign him fails as a matter of law.

Because Mr. Grimes could not perform the essential functions of his job, and he has failed to produce evidence of a reasonable accommodation which would have allowed him to perform the essential functions of his job, UPB's motion for summary judgment as to Mr. Grimes' ADA failure to accommodate claim will be GRANTED. As noted above, Mr. Grimes asserted a retaliation claim under the ADA, in addition to his ADA failure to accommodate claim. (Am. Compl. ¶ 43.) The subject of the retaliation claim will be addressed at the conclusion of this Entry.

C. Breach of Contract

In Count 2 of the Amended Complaint, Mr. Grimes alleges that UPB breached a contract of employment with him. No contract document was attached to the Amended Complaint, nor has one been subsequently produced. UPB has denied that Mr. Grimes had any contract of employment and has moved for summary judgment on Mr. Grimes' breach of contract claim.

This area of Indiana law can be summarized as follows:

Indiana recognizes two basic forms of employment: (1) employment for a definite or ascertainable term; and (2) employment-at-will. The determination of whether an employee is at-will is a legal determination. It is generally presumed that employment is at-will and may be terminated at any time, with or without cause, by either party. However, if the parties choose to include a clear term of employment in an employment contract, the presumption that the employment is at-will may be rebutted. . . . The presumption of at-will employment is strong.

Bee Window, Inc. v. Turman, 716 N.E.2d 498, 500-01 (Ind.Ct.App. 1999) (citing, inter alia, Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind. 1997)).

The employment application signed by Mr. Grimes on February 16, 1999, acknowledged that his employment could be terminated with or without cause or prior notice at any time by either UPB or Mr. Grimes. (Pruzin Aff. ¶ 8, Ex. 1.) On the same date, Mr. Grimes signed a document acknowledging his understanding that there is no employment agreement for a specific period and that the employee handbook does not constitute a guaranty or contract of employment. (Pruzin Aff. ¶ 8, Ex. 2.)

Mr. Grimes fails to address this issue in either of his summary judgment briefs, and in the portion of his statement of material facts addressing this issue, he merely directs the court's attention to "tab 5" of his binder of documents. "Tab 5" contains a seemingly random assortment of UPB training manuals, memos, e-mails, an article downloaded from the internet, blank severance agreements, and other materials. As discussed above, this fails to comply the requirements of Local Rule 56.1. See S.D. IND. L.R. 56.1(e) ("The court has no independent duty to search and consider any part of the record not specifically cited in the manner described in sections (a) and (b) above."); see also Huey v. United Parcel Serv., Inc., 165 F.3d 1084, 1085 (7^th Cir. 1999) ("[J]udges need not paw over the files without assistance from the parties."). Though the court declines to scrutinize each of the pages of this pile of materials, it is worth noting that the preface of the first document Mr. Grimes chose to include in "tab 5" says: "This Affirmative Action Plan does not constitute an express or implied contract between UPC and its employees, job applicants, or other persons, nor does it change in any way the basic at-will employment relationship that all Bank employees have with UPC."

Especially given Indiana's strong presumption of at-will employment, Mr. Grimes has failed to produce evidence from which a reasonable jury could find that he had an employment contract with UPB. Therefore, his breach of contract claim fails as a matter of law.

D. Defamation

UPB also moves for summary judgment as to Mr. Grimes' defamation claim. In Count 3 of the Amended Complaint, Mr. Grimes alleges that UPB's conduct constituted defamation. Paragraph 36 of the Amended Complaint alleges that UPB defamed Mr. Grimes when it informed various parties, including state officials, that the reason Mr. Grimes was discharged was because he was physically unable to do his job. In his summary judgment briefs, Mr. Grimes appears to address his defamation claim with only the following two sentences:

[I]t is clear that when Mr. Grimes sought assistance and accommodation, he was characterized as a complainer, and considered a suspect for surveillance, as discussed with the insurance provider, Chubb. Pruzin did no investigations of these charges prior to relaying these rumors to Chubb.

(Pl.'s Br. in Opp'n to Mot. for Summ. J. at 8; Pl.'s Surreply at 4.) (Other than this, Mr. Grimes provides no explanation of his defamation claim, and he fails to specifically cite to any additional evidence in his response to the statement of facts.) It seems Mr. Grimes is now basing his defamation claim on the November 2001 incidents when the other mailroom clerks (who were performing Mr. Grimes' restricted tasks) informed their immediate supervisor, Ms. Johnson, that Mr. Grimes told them he was working on stained glass windows, pouring concrete, building a deck, moving furniture and fixing his garage roof. This report was ultimately relayed to three other people at UPB (Ms. Johnson's supervisor and two human resources employees), as well as the adjustor handling Mr. Grimes' worker's compensation claim for UPB's insurer. One UPB human resources employee asked the insurance adjuster whether the insurance company could order surveillance on Mr. Grimes — though apparently no surveillance was ever ordered or performed.

Under Indiana law, a plaintiff must prove the following elements in a defamation action: (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4) damages. See Long v. Durnil, 697 N.E.2d 100, 106 (Ind.Ct.App. 1998). "A statement is defamatory if it tends to harm the reputation of another so as to lower him/her in the estimation of the community or to deter third persons from associating or dealing with him." Van Eaton v. Fink, 697 N.E.2d 490, 494 (Ind.Ct.App. 1998). To recover in an action for defamation, that which causes the alleged defamation must be both false and defamatory. See Doe v. Methodist Hosp., 690 N.E.2d 681, 687 (Ind. 1997) ("Defamation rules apply, however, only to statements that are false as well as defamatory."); see also Kolczynski v. Maxton Motors, Inc., 538 N.E.2d 275, 276 (Ind.Ct.App. 1989). The determination of whether a communication is defamatory is generally a question of law for the court. See Van Eaton, 697 N.E.2d at 494. The communication is to be viewed in context and given its plain and natural meaning, in reference to the idea it is calculated to convey to the addressee. See Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind.Ct.App. 1992).

In this case, Mr. Grimes has failed to present evidence sufficient to establish the first, second and fourth elements of a defamation action. Indeed, Mr. Grimes has even failed to produce any evidence showing that the report by his co-workers was false. He has failed to show any evidence of malice. He has failed to show damages.

Moreover, UPB has produced sufficient evidence to show that the communications between the UPB employees and between Ms. Pruzin and the UPB insurer are protected by qualified privilege. "The doctrine of qualified privilege protects communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty." Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 261 (Ind. 1994). Absent a factual dispute, whether the qualified privilege doctrine protects a statement is a question of law. See Van Eaton, 697 N.E.2d at 495 (citation omitted). The defendant has the burden to establish the existence of a privileged occasion for the publication by proof of a recognized public or private interest which would justify the utterance of the words. See id. Once the existence of the privilege is established, the burden shifts to the plaintiff to prove that the defendant abused the privilege. See id. (citation omitted). Abuse is shown when: (1) the communicator was primarily motivated by ill will in making the statement; (2) there was excessive publication of the defamatory statements; or (3) the statement was made without belief or grounds for belief in its truth. See Schrader, 639 N.E.2d at 262 (citation omitted).

UPB has sufficiently shown that Ms. Johnson, her supervisor, and the two human resources employees each had a legitimate business reason to speak about the report Ms. Johnson received from her employees. As the Indiana Supreme Court stated in Schrader: "Intracompany communications regarding the fitness of an employee are protected by the qualified privilege, in order to accommodate the important role of free and open intracompany communications and legitimate human resource management needs." Id. (citation omitted). There has been no showing of ill will, excessive publication, or reasons they should have doubted the veracity of the employees making the report.

Therefore, Mr. Grimes' claim for defamation fails as a matter of law.

IV. Conclusion

For the foregoing reasons, Mr. Grimes' claims of failure to accommodate under the ADA, breach of contract and defamation fail as a matter of law. UPB's motion for summary judgment will be GRANTED.

The rulings in this Entry dispose of all of Mr. Grimes' claims except one: retaliation under the ADA. Retaliation has not been addressed by either party — yet both parties seem to assume the summary judgment motion addresses all of Mr. Grimes' claims. Because of this, the court suspects Mr. Grimes is not pursuing the retaliation claim, though it still appears in the Amended Complaint. An examination of Mr. Grimes' EEOC charge reveals that the "retaliation" box was not checked. Perhaps the retaliation issue was not raised before the EEOC and that explains why neither party has mentioned the issue at this stage. However, this is just speculation. If Mr. Grimes intends to pursue the ADA retaliation claim, then he must notify the court and opposing counsel of this intention in writing WITHIN TEN (10) DAYS of the date of this Entry. If he does not do this within ten days, final judgment will be entered as to all claims in his Amended Complaint. If he does notify the court and opposing counsel of his intention to pursue his retaliation claim, and if UPB wishes to move for summary judgment as to that claim, it must do so WITHIN THIRTY (30) DAYS of the date of Mr. Grimes' written notification.

ALL OF WHICH IS ORDERED.