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EEOC v. Yellow Freight Sys.

United States Court of Appeals for the Seventh Circuit

April 4, 2000, Argued; November 29, 2000, Re-argued En Banc ; June 12, 2001, Decided

No. 99-3415


 [*945]  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 full-time  [*946]  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.

 [**3]  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

 [**4]  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.

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253 F.3d 943 *; 2001 U.S. App. LEXIS 12393 **; 11 Am. Disabilities Cas. (BNA) 1569

Equal Employment Opportunity Commission, Plaintiff, and MICHAEL NICOSIA, Intervening Plaintiff-Appellant, v. YELLOW FREIGHT SYSTEM, INC., Defendant-Appellee.

Prior History:  [**1]  Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 2725. Charles P. Kocoras, Judge.

Disposition: AFFIRMED.


Freight, accommodation, attendance, terminated, employees, disability, regular, reasonable accommodation, illness, dockworker, summary judgment, disciplinary, sick day, qualified individual, requesting, diagnosed, full-time, sick, interactive process, retaliation, casual, leave of absence, written warning, district court, absenteeism, discipline, penalized, genuine issue of material fact, essential function, attendance record

Business & Corporate Compliance, Discrimination, Disability Discrimination, Federal & State Interrelationships, Labor & Employment Law, Evidence, Burdens of Proof, Employee Burdens of Proof, Scope & Definitions, General Overview, Labor & Employment Law, Accommodation, Defenses, Unfair Labor Practices, Employer Violations, Interference With Protected Activities, Retaliation, Civil Procedure, Summary Judgment, Supporting Materials