United States District Court, N.D. Indiana
OPINION AND ORDER
RESA L. SPRINGMANN, District Judge.
Plaintiff Willie Key brought this action against his former employer, United States Steel Corporation, for failing to accommodate his disability in violation of the Americans with Disabilities Act (ADA) and for discriminating against him on the basis of his race in violation of Title VII of the Civil Rights Act. The Plaintiff also alleges that the Defendant's actions constitute the tort of intentional infliction of emotional distress. Plaintiff Luann Key joins in the intentional infliction of emotional distress claim and asserts her own loss of consortium claim.
The Defendant has filed a Motion for Summary Judgment [ECF No. 24], requesting judgment as a matter of law on all of the Plaintiffs' claims. The Plaintiffs oppose the Defendant's Motion and Defendant Willie Key has filed his own Motion for Summary Judgment as to Liability [ECF No. 28], in which he contends that no genuine issues of material fact exist on the issue of whether he was terminated from his job due to his disability. The Defendant also seeks to strike the Affidavit of Dr. Mohammed Zeitoun [ECF No. 41], which the Plaintiff designated as evidentiary support for his assertion that he suffers from an ADA-qualifying disability.
BACKGROUND AND CLAIMS
On February 15, 2011, the Plaintiff filed a Charge of Discrimination with the EEOC. He claimed that from August 20, 2010, to February 15, 2011, he was denied a reasonable accommodation when he was written up for absenteeism when his disability erupted, and that white employees with disabilities were not written up. The EEOC provided the Plaintiff a letter of dismissal and notice of right to sue.
The Plaintiff's Complaint, filed on September 27, 2011, includes the allegation that he missed work due to his illness and that the Defendant failed to accommodate his disability, which led to negative employment consequences and the termination of his employment. Additionally, the Plaintiff alleges that the Defendant failed to accommodate his need to avoid excessive heat when he had an insulin pump by "either reassigning him or moving him to a different job." (Compl. ¶ 14, ECF No. 1.)
The Defendant argues that because the Plaintiff's EEOC Charge did not include the claim that he was denied an accommodation by reassignment to a different job, but only addressed the write-ups for absenteeism, the former is not an exhausted claim that is properly before the Court. The Defendant notes that neither the EEOC Charge nor the Defendant's response to the Charge address the insulin pump that brought about the temperature restrictions. Moreover, the insulin pump restrictions were put in place in February 2010, six months before the date the Plaintiff indicates in his EEOC Charge that he began experiencing discrimination.
The ADA adopts the same procedural prerequisites as Title VII. See 42 U.S.C. § 12117(a). These procedural prerequisites provide that (1) a plaintiff must file a timely charge with the EEOC and (2) receive a right to sue letter from the EEOC. 42 U.S.C. § 2000e-5(b), (e), and (f). After receipt of the right to sue letter, a plaintiff has 90 days to bring suit in federal court. 42 U.S.C. § 2000e-5(f)(1). A plaintiff may not bring a claim that was not originally included in the EEOC charge. Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). These statutory requirements are preconditions, similar to statutes of limitations and, if not satisfied, are grounds for dismissal unless waived by the defendant. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). This rule serves the purpose of affording the EEOC the opportunity to settle the dispute between the employee and employer, and to put the employer on notice of the charges against it. Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 726 (7th Cir. 2003). Claims that are not explicitly alleged in the EEOC charge may still be brought, however, if they are "like or reasonably related" to one of the EEOC charges and can reasonably be expected to grow out of an EEOC investigation of the charges. Id.
The Plaintiff has fashioned his ADA claim and, specifically, his complaints about his employer's failure to adjust for his temperature restrictions, the removal of the insulin pump, and his subsequent absences in such a way as to tie them all to the same substantive claim-a failure to accommodate his disability. The Plaintiff maintains that his termination for violation of the absenteeism policy was actually brought about by the Defendant's earlier failure to accommodate his insulin pump temperature restrictions. On the other hand, it is not clear that an investigation into the Defendant's response to the Plaintiff's absences would have naturally led to an investigation into the Defendant's earlier response to the Plaintiff's insulin pump restrictions.
Because the unique circumstances of this case present a close call on the procedural issue and because, even when the additional allegation regarding the temperature restriction accommodation is considered, the Plaintiff's claim fails on the merits, the Court will decide the Plaintiff's failure to accommodate claim as he presents it in the Complaint and argues it to the Court in opposition to summary judgment.
STATEMENT OF FACTS
Defendant U.S. Steel, as part of the steelmaking process, uses a product called coke to fuel its blast furnaces. The Defendant operates a Coke Plant where coke is made by processing coal at extremely high temperatures in coke ovens. Fifty-seven coke ovens are stacked in rows in a heavy industrial area outside the Coke Plant, known as the Coke Battery. Because all employees working in the Coke Plant work in outdoor areas or near coke ovens, they are exposed to extreme temperatures, both hot and cold.
The Plaintiff worked for the Defendant from 2006 to 2011. He was hired as a Utility Technician and became a member of the Local 1014 Union. He was assigned to work in the Coke Battery area of the Coke Production Division on daily, rotating shifts. He signed a Memorandum of Understanding, in which he acknowledged that he would not be eligible to transfer out of the Coke Plant for a period of six years, or until September 2012. He served in several positions, including Battery Utility, Door Adjuster, Charge Car Operator, Door Cleaner, and Damperman. The Area Manager, James Penman, was his supervisor throughout his employment.
The Plaintiff is an insulin-dependent diabetic. In a letter dated February 19, 2010, Dr. Zeitoun, the Plaintiff's treating endocrinologist, stated that the Plaintiff had been under his care since August 2009, had an insulin pump inserted in October 2009, and that the Plaintiff was released to work with the restriction of no exposure to temperatures greater than 98.6 degrees due to the type of insulin used in his pump. During his return to work exam at the Defendant's Plant Medical Facility on February 26, 2010, Dr. Gardner approved the Plaintiff to return to work with the temperature restriction. ...