253 F.3d 943 (7th Cir. 2001), 99-3415, E.E.O.C. v Yellow Freight System

Docket Nº:99-3415
Citation:253 F.3d 943
Party Name:Equal Employment Opportunity Commission, Plaintiff, and MICHAEL NICOSIA, Intervening Plaintiff-Appellant, v. YELLOW FREIGHT SYSTEM, INC., Defendant-Appellee.
Case Date:June 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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253 F.3d 943 (7th Cir. 2001)

Equal Employment Opportunity Commission, Plaintiff,

and MICHAEL NICOSIA, Intervening Plaintiff-Appellant,


YELLOW FREIGHT SYSTEM, INC., Defendant-Appellee.

No. 99-3415

In the United States Court of Appeals, For the Seventh Circuit

June 12, 2001

Re-argued En Banc NOVEMBER 29, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 2725--Charles P. Kocoras, Judge.

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[Copyrighted Material Omitted]

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COFFEY, Circuit Judge.

On May 4, 1998, the Equal Employment Opportunity Commission (EEOC) filed a single count complaint in the Northern District of Illinois against the Defendant-Appellee Yellow Freight System, Inc., alleging violations of the Americans with Disabilities Act based on Michael Nicosia's, an employee of Yellow Freight, HIV/AIDS disability.1 Specifically, the EEOC alleged that Yellow Freight terminated Nicosia because of his AIDS related cancer and in retaliation for Nicosia's filing of a complaint with the EEOC. Upon the defendant's motion, the district court granted summary judgment in favor of Yellow Freight. We affirm.


Nicosia began his career with Yellow Freight in August of 1990 as a dockworker at the company's Chicago Ridge, Illinois, Terminal. At that time, Yellow Freight, a trucking services company, employed some 550 dockworkers who loaded and unloaded freight trailers, checked the pieces count, and weighed shipments. Initially, Nicosia was a "casual worker" for the company. As a casual worker, Nicosia served as an on-call replacement worker.2

In February 1991, Nicosia was elevated to a full-time dockworker.3 As a fulltime

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dockworker at the Chicago Ridge Terminal, Nicosia was supervised by Gerald Sendziol. Sendziol was responsible for making decisions at the terminal with respect to leaves of absence and whether or not to terminate a particular employee.

It is important to note that Yellow Freight has a five-step progressive discipline procedure to deal with employees who accumulate numerous and excessive absences.4 Pursuant to the system, an employee who violates the company's attendance policy would be subject to the following five steps: 1) a coaching session; 2) a letter of information; 3) a written warning; 4) suspension; and finally 5) termination.5 It is undisputed that since 1992 Yellow Freight has terminated over 90 employees pursuant to its progressive disciplinary system for excessive absenteeism.6

To say that Nicosia's attendance record was woeful is somewhat of an understatement. In 1991, Nicosia's first year as a full-time employee with Yellow Freight, he was scheduled to work 113 days, but left work early two times for illness and called in sick thirty-seven times.7 In 1992, his work attendance record was not much better when, out of 171 scheduled work days, he left work early because of an illness on one occasion, and took three personal days and twelve sick days. In the following year, Nicosia was absent from work more than half of the 242 days that he was assigned to work (126 absences for illness, left work early four times, and three unexcused absences). In 1994, out of 227 scheduled work days, he took another forty-seven sick days, left work early three times, and had three unexcused absences.

In November of 1995,8 Nicosia called Sendziol and told his supervisor that he needed time-off for an unspecified medical problem. Sendziol told him that he was ineligible for family and medical leave, but that he could take a 90-day unpaid leave of absence. Presumably because Nicosia did not want to be gone that long, he decided to call in sick for the next two weeks.

In December 1995, Nicosia was diagnosed as HIV positive. In January 1996,

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Nicosia's condition deteriorated and he was diagnosed with Kaposi's sarcoma, an AIDS-related cancer. On January 12, 1996, Nicosia sent a letter to Sendziol informing the company of his medical condition.

After being diagnosed with Kaposi's sarcoma, Nicosia's work attendance plummeted even further in 1996. In fact, he called in sick every working day during the months of January, February, and March. As a result of Nicosia's poor attendance, Yellow Freight initiated its progressive disciplinary system.

On June 14, 1996, the company initiated step one (coaching session) with Nicosia. On June 24, 1996, the company sent Nicosia a letter of information (step two). Nicosia responded to the letter of information with the following letter addressed to Sendziol and dated June 26, 1996:

I had advised you of my terminal illness on January 12, 1996 by messenger service. I have rights due to this illness under the Americans with Disabilities Act. Every time I have been off work due to illness, my doctor has faxed you medical documentation.

After another series of absences, Yellow Freight issued a written warning (step three) on July 15, 1996. Nicosia responded with a letter stating that he had been diagnosed with cancer.

The company then sent Nicosia an ADA accommodation review form along with a letter stating that Yellow Freight understood that Nicosia was requesting an accommodation under the ADA. The form required that Nicosia list his condition, describe the accommodation, if any, he was requesting, and to identify his treating physicians and medical providers.

Despite receiving the form, Nicosia failed to comply and fill it out. Instead, he returned the uncompleted form along with a letter. In the letter, Nicosia stated that he was "requesting no particular considerations at this time other than the resources necessary to perform my job and reasonable accommodations necessary to monitor and maintain my health status." He also stated that he wanted "sick days, if needed[,] without being penalized." Finally, he stated that he was "working" to perform the responsibilities and duties of a dockworker.

After Nicosia missed 10 out of the next 19 calendar days, the company proceeded to step four and suspended Nicosia for one day on August 5, 1996. In response to the suspension, Nicosia sent a letter promising to "report to work every day to fulfill my duties."

On October 15, 1996, Nicosia filed charges with the EEOC claiming that Yellow Freight had disciplined him because of his disability and also that it had denied him a reasonable accommodation. As noted earlier, the company terminated Nicosia on December 16, 1996, for excessive absenteeism.9 Following his termination, Nicosia filed a second charge with the EEOC alleging that he had requested an accommodation, had been denied an accommodation, and that he was illegally discharged. He also alleged that Yellow Freight had retaliated against him for filing his October 15th EEOC charges.

On May 4, 1998, the EEOC filed suit against Yellow Freight claiming that the freight company had discriminated against Nicosia in violation of the ADA and, furthermore, that it had retaliated against Nicosia for his filing of a complaint with

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the Commission. As mentioned before, Nicosia intervened in the suit.

On August 12, 1999, the trial judge granted summary judgment in favor of Yellow Freight and concluded that: 1) Nicosia was not a "qualified individual" under the ADA; 2) regular attendance at the job site was an "essential function of Nicosia's job"; 3) Nicosia's request for "sick days, if needed[,] without being penalized" was not reasonable as a matter of law; and 4) there was no causal connection between Nicosia's filing of an EEOC complaint and his termination. Nicosia, not the EEOC, appeals.


The ADA mandates that:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. sec. 12112(a). The law also requires that "[t]he plaintiff bears the burden of proof on the issue of whether he is a 'qualified individual' under the ADA." Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998). Furthermore, to establish a prima facie case under the ADA, Nicosia must demonstrate that he is "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. sec. 12111(8); see Feldman v. American Mem'l Life Ins. Co., 196 F.3d 783, 789-90 (7th Cir. 1999). Thus, the critical question is whether an "essential function" of Nicosia's regular full-time position with Yellow Freight was regular attendance, and if so, did he fulfill that "essential function." Also,

the fact that [Yellow Freight] had infinite patience [with regard to Nicosia's poor attendance] does not necessarily mean that every company must put up with employees who do not come to work. Nor must every company hire replacements for absent employees and call that a reasonable accommodation. The issue before us is, when is enough, enough?

Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999).

At the outset, let us be clear that our court, and every circuit that has addressed this issue, has held that

in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability. The fact is that in most cases, attendance at the job site is a basic requirement of most jobs. As the Tyndall court put it:


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