{ "id": 12141261, "name": "DANIEL J. KUBIK, Plaintiff-Appellant, v. CNA FINANCIAL CORPORATION et al., Defendants-Appellees", "name_abbreviation": "Kubik v. CNA Financial Corp.", "decision_date": "1981-02-06", "docket_number": "No. 79-1966", "first_page": "715", "last_page": "721", "citations": [ { "type": "official", "cite": "96 Ill. App. 3d 715" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "69 Ill. B.J. 218", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1980, "opinion_index": 0 }, { "cite": "401 N.E.2d 973", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3230976 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/1050-01" ] }, { "cite": "401 N.E.2d 1203", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3230543 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/1005-01" ] }, { "cite": "404 N.E.2d 473", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 1040", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5552527 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/1040-01" ] }, { "cite": "312 N.E.2d 605", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "57 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406059 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/57/0398-01" ] }, { "cite": "315 N.E.2d 25", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 503", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5407729 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0503-01" ] }, { "cite": "406 U.S. 535", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172329 ], "weight": 3, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/406/0535-01" ] }, { "cite": "416 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84266 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/416/0001-01" ] }, { "cite": "99 L. Ed. 563", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "348 U.S. 483", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931894 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/348/0483-01" ] }, { "cite": "427 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176316 ], "weight": 3, "year": 1955, "opinion_index": 0, "case_paths": [ "/us/427/0307-01" ] }, { "cite": "183 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. App. 2d 128", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5261529 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/36/0128-01" ] }, { "cite": "370 N.E.2d 124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 980", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3400898 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0980-01" ] }, { "cite": "100 S. Ct. 484", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "62 L. Ed. 2d 408", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "444 U.S. 981", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11416097, 11416065, 11416231, 11416137, 11416009, 11416173, 11415921, 11415890, 11416275, 11415961 ], "opinion_index": 0, "case_paths": [ "/us/444/0981-06", "/us/444/0981-05", "/us/444/0981-09", "/us/444/0981-07", "/us/444/0981-04", "/us/444/0981-08", "/us/444/0981-02", "/us/444/0981-01", "/us/444/0981-10", "/us/444/0981-03" ] }, { "cite": "385 N.E.2d 39", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1979, "pin_cites": [ { "page": "42" }, { "page": "43" }, { "page": "43" }, { "page": "41-42" }, { "page": "42" }, { "page": "42" } ], "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 512", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3315776 ], "weight": 7, "year": 1979, "pin_cites": [ { "page": "515-16" }, { "page": "516" }, { "page": "516-17" }, { "page": "514" }, { "page": "515" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0512-01" ] }, { "cite": "376 N.E.2d 657", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 986", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3360027 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0986-01" ] }, { "cite": "293 N.E.2d 629", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill. App. 3d 350", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5397010 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0350-01" ] }, { "cite": "292 N.E.2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850540, 2853479 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0408-02", "/ill-app-3d/9/0408-01" ] } ], "analysis": { "cardinality": 740, "char_count": 14591, "ocr_confidence": 0.9, "pagerank": { "raw": 2.6436063218764954e-07, "percentile": 0.8233501258181462 }, "sha256": "ceba6217ce622eeef7e7261435b092ccd23728418100f5a2002ea11b43fb0037", "simhash": "1:8fd89314b7d0f056", "word_count": 2391 }, "last_updated": "2023-07-14T16:31:40.709125+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LORENZ and WILSON, JJ., concur." ], "parties": [ "DANIEL J. KUBIK, Plaintiff-Appellant, v. CNA FINANCIAL CORPORATION et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nPlaintiff appeals from the grant of summary judgment to defendants in an action for damages arising out of his employment termination allegedly in violation of the Equal Opportunities for the Handicapped Act (hereafter EOHA) (Ill. Rev. Stat. 1975, ch. 38, par. 65 \u2014 21 et seq.) and article I, section 19 of the Illinois Constitution (hereafter section 19) (Ill. Const. 1970, art. I, \u00a719). On appeal, plaintiff contends that (1) summary judgment should have been denied because a genuine issue of fact existed as to whether he had a \u201cphysical or mental handicap\u201d as that phrase is used in EOHA and section 19; (2) the court\u2019s construction of EOHA and section 19 denied him equal protection; and (3) the motion for summary judgment was defective in that it was combined with a motion to dismiss.\nPlaintiff had been employed by defendants for a number of years, during which time he received promotions and increases in responsibility and income. Then, in 1975, a malignant tumor was surgically removed from his colon and, when he returned to work in January 1976, he was informed that his employment was terminated as of March 1 of that year.\nIn his verified amended complaint asserting a wrongful discharge in violation of EOHA and section 19, plaintiff alleged that after his surgery he \u201creported to [defendants, ready to resume his duties\u201d and at that time he \u201cwas physically handicapped in that his physiological condition limited and is regarded as limiting certain of his major life functions\u201d; that defendants\u2019 personnel officer told him that they would not employ anyone with his \u201chandicap\u201d irrespective of qualifications; that he was capable of performing the employment duties required of him by defendants but was discharged because of \u201chis physical condition and handicap.\u201d He asked for reinstatement, back pay, and other damage. Defendants\u2019 answer essentially denied those allegations.\nThereafter, the trial court granted a motion of defendants for summary judgment based on findings that there was no genuine issue as to any material fact and that a cause of action had not been stated because plaintiff\u2019s condition was not a physical handicap within the meaning of either EOHA or section 19. This appeal followed.\nOpinion\nSummary judgment should be granted if it appears from the matter presented in support and in opposition to the motion that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1977, ch. 110, par. 57(3); Joseph W. O\u2019Brien Co. v. Highland Lake Construction Co. (1972), 9 Ill. App. 3d 408, 292 N.E.2d 205.) It is, however, a drastic means to dispose of litigation (Green v. McClelland (1973), 10 Ill. App. 3d 350, 293 N.E.2d 629) which should be granted only when the right of the movant thereto is clear and free from doubt (Marshall v. City of Chicago Heights (1978), 59 Ill. App. 3d 986, 376 N.E.2d 657).\nIt is the initial contention of plaintiff here that summary judgment was improperly granted because an issue of fact exists as to whether his physical condition at the time of his employment termination was a \u201cphysical or mental handicap\u201d as under section 19 and EOHA. Section 19 provides: \u201cAll persons with a physical or mental handicap # * shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer\u201d (Ill. Const. 1970, art. I, \u00a719), and section 3 of the EOHA provides:\n\u201cIt is an unlawful employment practice for an employer: (1) 9 9 9 to discharge 0 0 0 any individual 0 0 0 because of such individual\u2019s physical or mental handicap, unless it can be shown that the particular handicap prevents the performance of the employment involved; 9 9 9.\u201d Ill. Rev. Stat. 1975, ch. 38, par. 65 \u2014 23.\nIt should be noted that the only documents presented to and considered by the trial court in ruling on the motion for summary judgment were the verified amended complaint and answer thereto, defendant\u2019s memorandum in support of the motion, and plaintiff\u2019s memorandum in opposition thereto with his personal affidavit. Plaintiff\u2019s affidavit and amended complaint stated in substance that when he returned to work after his surgery for removal of a malignant tumor, he told defendants that his doctors would not consider him cured until five years had passed without a recurrence; that he was ready and capable of performing his duties, but he \u201cwas physically handicapped in that his physiological condition limited and is regarded as limiting certain of his major life functions\u201d; and that he was discharged because of \u201chis physical condition and handicap.\u201d In their memorandum, defendants rely solely upon Advocates for the Handicapped v. Sears, Roebuck & Co. (1978), 67 Ill. App. 3d 512, 385 N.E.2d 39, cert. denied (1979), 444 U.S. 981, 62 L. Ed. 2d 408, 100 S. Ct. 484, to sustain their position. In his memorandum, plaintiff cites no legal authority and argues only that Advocates is not dispositive.\nIn Advocates, a plaintiff (Klapacz), as a result of nephritis and a kidney transplant, was restricted from heavy lifting. He contended that \u201cunder the ordinary and popularly understood meaning of the term [physical or mental handicap], any individual is handicapped if he is prevented from fully enjoying his life because of a physical or mental condition.\u201d (67 Ill. App. 3d 512, 515-16, 385 N.E.2d 39, 42.) Employment was denied because he was an uninsurable risk under defendant\u2019s program of self-insurance and, because of his ineligibility was based upon his physical condition, he argued that he was handicapped under the purview of EOHA. In support, he referred to the definition of handicap in Webster\u2019s Third New International Dictionary 1027 (1976): \u201c* 0 * a disadvantage that makes achievement unusually difficult; esp: a physical disability that limits the capacity to work.\u201d The court, however, in finding that Klapacz was not handicapped within the meaning of section 19 or EOHA, stated:\n\u201c[W]e cannot accept the plaintiff\u2019s interpretation of the common meaning of the phrase \u2018physical and mental handicap.\u2019 First, we feel that this approach would extend the proscriptions of the Act well beyond the scope intended by the legislature. Since virtually every consideration upon which an employer is likely to evaluate a prospective or current employee may be classified as either a mental or physical condition, the Act would be transformed into a universal discrimination law. Even such considerations as sex, age and race could be denominated as physical conditions and thus would be swept within the purview of the Equal Opportunities for the Handicapped Act.\u201d (67 Ill. App. 3d 512, 516, 385 N.E.2d 39, 43.)\nIt then went on to say:\n\u201c[W]e believe that the legislature had in mind a more objective criteria for determining what physical or mental conditions constitute handicaps within the meaning of the Act than that suggested by the plaintiff. In effect, he argues that for any physical condition to reach the level of a handicap to be protected by the Act, an employer need only act upon that condition and deny the individual employment. We believe, however, that in enacting this legislation, the General Assembly had in mind a class of physical and mental conditions which are generally believed to impose severe barriers upon the ability of an individual to perform major life functions.\u201d (Emphasis added.) 67 Ill. App. 3d 512, 516-17, 385 N.E.2d 39, 43.\nWe adopt the Advocates interpretation of \u201cphysical or mental handicap\u201d as emphasized above and, thus, the question presented here is whether plaintiff\u2019s condition comes within that class. In this regard, we note that the only reference to a handicap are allegations in his amended complaint and affidavit that he had a malignant tumor on his colon which was successfully removed; that doctors would not consider him cured until five years had passed without a recurrence; and that he \u201cwas physically handicapped in that his physiological condition limited and is regarded as limiting certain of his major life functions.\u201d Even construing those allegations liberally in favor of plaintiff, we think it clear that they do not assert a physical handicap under the Advocates interpretation of that term. Neither do we believe defendant has asserted a handicap under the dictionary definition stated above, as there is nothing in the record from which it could be inferred that his condition was \u201ca disadvantage that makes achievement unusually difficult\u201d or \u201ca physical disability which limits the capacity to work.\u201d\nMoreover, in ruling on a motion for summary judgment, the trial court should disregard conclusions of the pleader and only consider evidentiary facts. (Murphy v. Ambassador East (1977), 54 Ill. App. 3d 980, 370 N.E.2d 124; Bottorff v. Spence (1962), 36 Ill. App. 2d 128, 183 N.E.2d 1.) Here, the allegation that \u201cplaintiff was handicapped in that his physiological condition limited and is regarded as limiting certain of his major life functions\u201d is a conclusion unsupported by any allegation of fact and, as such, was properly disregarded by the trial court. There being no evidentiary facts supporting plaintiff\u2019s allegation of a handicap and because no other purported issue of material fact has been urged by plaintiff, we conclude that summary judgment was properly granted.\nWe turn then to the additional contention of plaintiff that the trial court\u2019s reliance upon Advocates resulted in a construction of section 19 and EOHA which was in violation of his equal protection rights.\nUnder the traditional standard of equal protection review, a classification will be sustained if there is a reasonable basis for distinguishing the class to which the law is applicable from the class which it is not (Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562; Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461), and because the reasonableness of the classification is presumed, the party challenging it has the burden of establishing its invalidity (Village of Belle Terre v. Boraas (1974), 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536; Jefferson v. Hackney (1972), 406 U.S. 535, 32 L. Ed. 2d 285, 92 S. Ct. 1724; Hoskins v. Walker (1974), 57 Ill. 2d 503, 315 N.E.2d 25).\nSpecifically, plaintiff argues that the Advocates interpretation of \u201cphysical and mental handicap,\u201d considered by the trial court to be dispositive in the instant case, is an unreasonable classification in that it is contrary to the language of section 19 and EOHA. We disagree.\nThe court, in Advocates, after noting that section 19 does not effectively define the phrase \u201cphysical or mental handicap\u201d (67 Ill. App. 3d 512, 514, 385 N.E.2d 39, 41-42), stated that it examined the record of the constitutional convention proceedings to ascertain the intent of the framers, and it concluded that \u201cthere is no indication in the record that the delegates ever agreed upon a precise formula for determining the scope of the term \u2018physical or mental handicap\u2019 \u201d (67 Ill. App. 3d 512, 515, 385 N.E.2d 39, 42). The Advocates court also analyzed the definition of that same phrase in EOHA and stated, \u201c[T]his definition effectively begs the question of what constitutes a handicap for purposes of the Act 9 9 9.\u201d (67 Ill. App. 3d 512, 515, 385 N.E.2d 39, 42.) We are in accord with this reasoning and, since guidance is not provided in section 19 or EOHA as to the scope of the phrase \u201cphysical or mental handicap,\u201d we reject plaintiff\u2019s argument that an unreasonable classification resulted because the Advocates interpretation was contrary to the language of those provisions.\nPlaintiff also maintains that the summary judgment should be vacated because the trial court improperly combined the motion for summary judgment with a motion to dismiss. He takes this position from the fact that defendant\u2019s motion for summary judgment included the ground \u201cthat plaintiff has failed to state a cause of action\u201d and because the court, in granting summary judgment, while finding that there was no genuine issue of material fact, also held \u201cthat [pjlaintiff has failed to state a cause of action in the Amended Complaint.\u201d\nIt is correct, as plaintiff states, that the practice of combining a request for summary judgment with an inquiry as to whether a pleading states a cause of action has been expressly disapproved by our courts (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605; Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App. 3d 1040, 404 N.E.2d 473); however, it is not grounds for reversal absent a showing of prejudice (Chemical Petroleum Exchange, Inc. v. Metropolitan Sanitary District (1980), 81 Ill. App. 3d 1005, 401 N.E.2d 1203; Herman v. Hamblet (1980), 81 Ill. App. 3d 1050, 401 N.E.2d 973). Here, it is clear that in finding \u201cthat no issue of genuine fact was presented\u201d the trial court treated the motion as one for summary judgment under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57), and, because we agree that summary judgment was properly entered on that basis, we conclude that plaintiff was not prejudiced, because the additional finding that no cause of action was stated was not necessary in the determination of whether summary judgment should be granted.\nFor the reasons stated, summary judgment is affirmed.\nAffirmed.\nLORENZ and WILSON, JJ., concur.\nEOHA was subsequently repealed effective July 1, 1980, and essentially replaced by the Illinois Human Rights Act. (Ill. Rev. Stat., 1979 Supp., ch. 68, par. 1 \u2014 101 et seq.) See Davis & Murphey, The Illinois Human Rights Act: Revision of Illinois Law Concerning Discrimination in Employment, 69 Ill. B.J. 218 (1980).\nPlaintiff alleged employment by both defendants, but in their joint answer they deny any employment by defendant CNA Financial Corporation. However, in their motion for summary judgment and supporting memorandum, they treat plaintiff as being the employee of both, and we will also do so in this opinion.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "Edward Parsons, of Chicago (Gregory A. Friedman, Richard J. Friedman, Melvin M. Landau, and Andrew Schatz, of counsel), for appellant.", "Reuben & Proctor, of Chicago (Gary M. Elden, Roger T. Brice, and Celia Y. David, of counsel), for appellees." ], "corrections": "", "head_matter": "DANIEL J. KUBIK, Plaintiff-Appellant, v. CNA FINANCIAL CORPORATION et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 79-1966\nOpinion filed February 6, 1981.\nRehearing denied June 10, 1981.\nEdward Parsons, of Chicago (Gregory A. Friedman, Richard J. Friedman, Melvin M. Landau, and Andrew Schatz, of counsel), for appellant.\nReuben & Proctor, of Chicago (Gary M. Elden, Roger T. Brice, and Celia Y. David, of counsel), for appellees." }, "file_name": "0715-01", "first_page_order": 737, "last_page_order": 743 }