Malabarba v. Chicago Tribune Co., 97-2707

• Decision Date: 22 July 1998
• Docket Number: No. 97-2707,97-2707
• Citation: 149 F.3d 690
• Parties: 8 A.D. Cases 1505, 13 NDLR P 139 John P. MALABARBA, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 690

149 F.3d 690

8 A.D. Cases 1505, 13 NDLR P 139

John P. MALABARBA, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY, Defendant-Appellee.

No. 97-2707.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 12, 1998.

Decided July 22, 1998.

Debra K. Marcus (argued), Argy Koutsikos, Pappas, Power & Marcus, Chicago, IL, for Plaintiff-Appellant.

John W. Powers (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendant-Appellee.

Before BAUER, COFFEY, and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

The plaintiff-appellant, John Malabarba, appeals from the district court's entry of summary judgment in favor of the defendant-appellee, Chicago Tribune Company ("Tribune"), on his claim that the Tribune failed to reasonably accommodate his disability and terminated his employment, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Malabarba contends that the trial judge erred in finding that he was not a "qualified individual with a disability" within the meaning of the ADA, that he was provided with reasonable accommodations to perform his job, and that he was not discharged because of his disability. We affirm.

I. BACKGROUND

There is an old adage among lawyers that, when the law is not on your side, you should attempt to confuse the court or jury with your spin on the facts. When one engages in this practice on appeal, it regrettably makes the court's task of resolving disputes all the more time-consuming and difficult. Malabarba has submitted a very lengthy recitation of his edited version of the facts in this case. We are now called upon to do the work of distinguishing the undisputed facts from those which are disputed in reviewing the grant of summary judgment. Unfortunately, Malabarba's Local Rule 12 response to the Tribune's statement of uncontested facts falls short in flagging the allegations with which he agrees versus those he disputes. For this reason, the Tribune filed a motion in the district court to strike Malabarba's Rule 12(N) statement. The trial judge denied the Tribune's motion, notwithstanding her belief that "the court would be justified in granting [it]" because, among other reasons, "Malabarba is argumentative and unresponsive [and] ... goes on for pages making factual assertions and legal arguments that do not contradict the Tribune's statements." See Guzzo v. Northeast Illinois Regional Railroad Corp., No. 94-C5813, 1996 WL 131730, at * 1 (N.D.Ill. March 15, 1996) (A Rule 12 statement "must be limited to a concise statement of uncontested facts. Opinion, suggested inferences, legal arguments and conclusions" are improper.); Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994) (explaining that "district courts are not obliged in our adversary system to scour the record looking for factual disputes...."). The court did find that, because Malabarba failed to deny a number of the Tribune's allegations, he in effect admitted them. See Bourne Co. v. Hunter Country Club, Inc., 990 F.2d 934, 938 (7th Cir.1993) (district court correctly held that defendant admitted facts in Rule 12(m) statement by failing to deny them). The court also rejected several of Malabarba's factual responses, ruling that they were unsupported in the record. Malabarba now attempts to reargue his opposition to certain facts that the district judge concluded were admitted, and restates other facts as if they were undisputed, even though the judge found them to have been without a basis in the record. Local Rule 12 does not lose its efficacy once a case moves from the trial arena to the appellate stage of litigation; we, too, "endorse[ ] the exacting obligation [Rule 12] ... impose[s] on a party contesting summary judgment to highlight which factual averments are in conflict." Waldridge, 24 F.3d at 921-22 (emphasis added). That having been said, we shall limit the ensuing discussion to those facts which the parties' Rule 12 statements reflect are clearly undisputed and are supported in the record.

The Chicago Tribune, a Delaware corporation with its principal place of business in Chicago, Illinois, prints and distributes a daily newspaper. In 1972, the Tribune hired Malabarba as a mailer, and he worked in that capacity until July of 1985, when he "walked out" during a labor strike. Five years later, in August 1990, Malabarba was re-hired by the Tribune to work in its packaging department as a packager, ¹ a position which, according to both parties, is one of the most physically demanding within the company. Indeed, the packager job "[r]equires physical dexterity to lift and move material," the ability "to stand for long periods of time[,] ... to lift or pile newspaper products that vary in weight from five to thirty-five pounds or more," and "to help remove paper jams in conveyors at various height levels which includes climbing on ladders." All packagers are assigned to one of two "teams" within the packaging department-press support or inserting machine support. ² Every packager on each team, in turn, rotates through the various duties attendant to the press or inserting machine. The required physical skills for working on either team reflect those set forth in the general packager job description, quoted above. Packagers also periodically fill in as needed for the packaging department control room operator (i.e., whenever he or she breaks for lunch, is on vacation or sick leave, etc.); this is considered to be sedentary, "light-duty" work. ³

On April 28, 1991, approximately eight months after going back to work at the Tribune, Malabarba injured his back while attempting to remove newspaper bundles from a printing press. As a result of this injury, he took a leave of absence until September of 1991, when Dr. Michael Schafer, Malabarba's orthopedic surgeon, and Dr. John Marquardt, the Tribune's medical director, both cleared him to return to his packager position without physical restriction. Then, on April 27, 1992, Malabarba once again injured his back while piling bundles coming off the press, and was once again granted a leave of absence. ⁴ Doctors Marquardt and Schafer released him to work in September 1992, but this time placed limitations on the types of tasks he could perform--he was prohibited from standing for over thirty minutes without a break, bending at the waist, twisting his torso, or lifting anything weighing more than ten pounds. Malabarba admits that these restrictions on his physical activity prevented him from working on the inserting machines and presses. And, in fact, Dr. Marquardt instructed Malabarba that he was to confine his duties to helping out in the control room. ⁵

Upon Malabarba's return to the packaging department in September of 1992, he was assigned to assist the second-shift control room operator, Minnie Hayes. Hayes took disability leave beginning in November 1992, at which time Malabarba covered for her on a full-time basis. When Hayes came back to work the following March, Malabarba helped out in the control room only occasionally. With little left for Malabarba to do, Jerry Quarnstrom, the then second-shift operations manager, made up a list of miscellaneous "light-duty" tasks around the packaging department and assigned them to Malabarba. ⁶ By the Fall of 1993, Tom Gillison had replaced Quarnstrom as the operations manager, and Malabarba had completed most of the job assignments included on Quarnstrom's list. Gillison gave Malabarba other "light-duty" projects, but, as of late 1993, it was evident to the packaging department manager, Steve Weisser, that many of these tasks were both repetitive and unnecessary.

In May 1994, a diabetes-related foot ulcer forced Malabarba to take another leave of absence, his third in less than four years since being re-hired by the Tribune in 1990. He received a medical release to return to work some five months later, in October, and was transferred immediately to the Tribune's remote packaging site, Tribune Packaging West ("TPW"), to work as a material handler. ⁷ In this capacity, Malabarba's primary charge was to drive a forklift or "jeep" to mechanically load and unload trucks at TPW's receiving dock. Nevertheless, it is uncontested that his physical limitations precluded him from carrying out all the duties of a material handler, including manually lifting empty wooden skids and newspaper bundles, piling the newspaper bundles on skids, and splitting or combining newspaper bundles on the skids. ⁸ Malabarba's stint at TPW was quite brief, only one month; in November, he fractured his foot while at home and took his fourth medical leave in four years. After he was fit with a walking cast, Dr. Marquardt cleared him to return to work at TPW on January 22, 1995. Although the parties dispute whether Malabarba was capable of operating a forklift with his foot casted, the operations manager at TPW, Al Letizia, states that he sent Malabarba home because he was unable to wear safety shoes, as required by Tribune policy.

On February 1, 1995, Malabarba met with Weisser and Audrey Southard, the Tribune's human resources manager. At this meeting, Malabarba described the types of "light-duty" projects to which he had previously been assigned in the packaging department, and expressed a desire to continue working on similar jobs. Weisser and Southard told him he could not be re-assigned to the packaging department because of budget constraints, ⁹ but that the Tribune would attempt to find him a position compatible with his medical restrictions outside of that department. Shortly thereafter, Southard had Cathlene Johnson, an employment specialist, interview Malabarba to determine the types of jobs for which he was qualified. From her interview, Johnson was of the opinion that Malabarba possessed sound communications and "people skills," as well as an understanding of the Tribune organization as a whole. She informed Malabarba that she would be on the lookout for a...