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99-3415EEOC v. Yellow Freight System, Inc.

By: dmc-admin//June 18, 2001//

99-3415EEOC v. Yellow Freight System, Inc.

By: dmc-admin//June 18, 2001//

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“The unchallenged record in this case reflects that Yellow Freight bent over backwards to accommodate Nicosia in spite of his long history of poor work attendance. Nicosia was repeatedly warned and reprimanded, and given numerous opportunities to improve his work attendance record. It was Nicosia’s woeful attendance record that forced Yellow Freight into the position that it could no longer justify Nicosia’s employment.

“Rather than attempting to show that he is a qualified individual, however, Nicosia seems to want to turn the ADA on its head. It is as if he thinks that rather than ensuring that he be allowed to work, the ADA requires Yellow Freight to provide him with a job but not require that he regularly perform it. Rather, Yellow Freight must hire another employee to do the job for him while he remains a full-time employee. The Act does not go so far. The ADA protects an important, but finite, universe of people.”

Affirmed.

DISSENTING OPINION: Diane P. Wood, J. “The majority is quite correct to note that Yellow Freight has pointed to evidence that, if believed by the jury and given the weight Yellow Freight thinks it deserves, would show that attendance was indeed a requirement of the full- time dockworker job and thus that failure to maintain regular attendance was a legitimate, nondiscriminatory reason for employee terminations. But Nicosia has evidence on the other side. He showed that the numbers of workers on the dock varied greatly from day to day; that workers were basically fungible with one another, so that it did not matter who was doing the loading and unloading on any particular day; that Sendziol did not follow any fixed policy other than to treat each case individually, giving very lengthy leaves to people he found deserving; and that his poor attendance was never an insurmountable problem until the company found out he was HIV positive.

“If the trier of fact believed Nicosia’s evidence, it would find that Nicosia’s attendance did not violate Yellow Freight’s actual policies. Contrary to the majority’s view, such a holding would be consistent with established precedent in this circuit, as well as in the others. In addition, the timing of Yellow Freight’s sudden decision to escalate its response to Nicosia’s problematic attendance from step 3 (where it had always stopped before) to steps 4 and 5, at the very moment when Nicosia revealed his illness – an illness that the Supreme Court has recognized is entitled to protection under the ADA, see Bragdon v. Abbott, 524 U.S. 624, 632-42 (1998) – is suspicious enough to indicate that Yellow Freight’s stated reason for terminating him was pretextual. I would therefore hold that Nicosia is entitled to go forward with his basic claim of discrimination in violation of the ADA.”

Appeal from the United States District Court for the Northern District of Illinois, Kocoras, J., Coffey, J., (en banc).

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