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BUSH v. COMMONWEALTH EDISON CO.

November 25, 1991

JAY V. BUSH, Plaintiff,
v.
COMMONWEALTH EDISON CO., Defendant.


ASPEN


The opinion of the court was delivered by: MARVIN E. ASPEN

MARVIN E. ASPEN, District Judge:

 Commonwealth Edison Co. ("Edison") has moved for summary judgment on all three of plaintiff Jay Bush's causes of action as alleged in his second amended complaint--namely, his assertions of discriminatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1988) (Count I), discriminatory failure to promote under 42 U.S.C. § 1981 (1988) (Count II), and state statutory and common law retaliation (Count III). For the reasons set forth below, we grant the motion for summary judgment on all three counts.

 I. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

 The non-moving party's burden at that point entails more than the mere raising of "'some metaphysical doubt as to the material facts.'" Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (footnote omitted)). A genuine issue is created for trial only when the non-moving party presents sufficient factual allegations to enable a rational trier of fact to find in its favor. If it fails to shoulder this burden, summary judgment should be granted. Id.; see also Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989).

 II. Factual Background

 The following facts are undisputed, except as noted. Edison hired Bush as a garageman in its transportation department on November 13, 1978. Less than two years later, the company promoted Bush to the position of "B" mechanic, or "repairman." As a "B" mechanic, Bush did engine and brake repairs, suspension and front end work, and body work on Edison vehicles.

 On June 18, 1982, Bush injured his knee at work. While the circumstances are not directly relevant because Edison admits that the injury "was industrially-related," it appears that Bush, attempting to dismount after retrieving something from the cab of a truck, put his foot down on a wheel hoist instead of the truck's running board. When he stepped on the hoist, his foot slipped and he injured his knee.

 Edison placed Bush on restricted duty from June 23, 1982 until approximately July 7, 1982 as a result of his injury. These restrictions included instructions that Bush was not to climb, kneel, or squat. Bush also underwent a program of physical therapy at a clinic in Hammond, Indiana, and supplemented that therapy with home exercises. Although his knee continued to bother him after his medical restrictions were lifted, he thought that the knee would eventually recover.

 Nearly a year and a half later, on December 9, 1983, Bush again injured his knee. According to him, his knee gave out while he was climbing some stairs. Edison characterizes the incident as a "reinjury," whereas Bush objects to the "use of the word reinjured to the extent [Edison] means to imply that Mr. Bush's knee problems on or about December 9, 1983 were not related to the injury on June 18, 1982." That dispute is significant only insofar as it tends to obscure the way Edison handled the injury, as explained below. Edison placed Bush on restricted duty on December 12, 1983. Meanwhile, Bush had seen a doctor, who scheduled an arthrogram for January 12, 1984 to more fully investigate the extent of the damage.

 The arthrogram disclosed that Bush had suffered a torn anterior cruciate ligament and some cartilage damage. The doctor advised Bush that these conditions required surgery. Bush assented, and surgery was performed on January 16, 1984. Bush did not return to work until July 6, 1984.

 Edison initially treated the December 9, 1983 injury as non-industrial, which apparently meant that, at some point, it stopped paying Bush's medical bills and salary and, instead, refers those matters to Bush's insurance carrier. Bush, convinced that the injury was industrially related, eventually filed (and prevailed on) a workman's compensation claim against Edison, as we detail below.

 Bush attempted to return to work on July 6, 1984, restricted to half days, but that lasted only until July 12, 1984. Experiencing a "pulling sensation in the knee," and some swelling, Bush consulted the doctor who performed his first surgery. The doctor recommended a second surgery to remove some staples that remained from the initial operation. That surgery was performed on August 14, 1984. Bush did not work between July 13, 1984 and October 21, 1984. According to Bush, Edison encouraged him during this time to concentrate on recovery, "to just try to get better and get back to work."

 He returned to the job on October 22, 1984, again working only half days, with further restrictions against heavy lifting, kneeling, or stair climbing. Edison lifted those restrictions on November 1, 1984. Bush continued to undergo physical therapy three times a week, and, after a couple of months, felt that he had regained most of the strength in his knee. However, he missed twenty days of work between December 28, 1984 and January 28, 1985 to rest his knee and obtain additional medical opinions regarding a "popping" sensation.

 Bush's ability to perform a "B" mechanic's regular duties following his return to Edison is disputed by the parties, although our perception of that dispute may be the product of Edison's incomplete version of the story. The company put Bush on restricted duty upon his return, and, without more explanation in its Rule 12(m) Statement of Facts, asserts that

 under these medical restrictions, Mr. Bush did not perform the regular duties of his mechanic's position, and he performed garage maintenance type activities and other make-work.

 Rule 12(m) Statement para. 36. What Edison does not aver to is the fact that Bush had been released to work full days by March 25, 1985, and that he "resumed doing just about everything that Edison required" of "B" mechanics. Indeed, Bush claims that he

 basically did all the work [his] supervisors assigned to [him], including body work, lights, brakes, and other types of vehicle service. [He] even did work they assigned [him] that violated [his] restrictions, such as organizing the parts room, because of [his] eagerness to get back to real mechanic's work after being out so long with [his] knee injury.

 Bush Affidavit para. 30; see also Rule 12(n) Statement para. 36.

 For whatever reason, Edison apparently stopped assigning to Bush regular "B" mechanic-type duties in late April 1985. Bush's explanation is that, on or about April 29, one of his supervisors assigned him to place bumper stickers on every vehicle and piece of equipment in Edison's fleet. Bush told the supervisor that he felt the task would be too hard on his knee, involving as it did excessive bending and kneeling in violation of his work restrictions, and that he should not be required to do it. After some discussion, however, Bush agreed to perform the task and did so.

 Two days later, the same supervisor directed Bush to remove all the stickers that had been affixed to Edison's vehicle and equipment fleet. Bush again informed the man that this would violate his medical restrictions, and this time declined to perform the task. Immediately following the sticker incident, Bush claims, his supervisors in the garage simply stopped assigning him any regular "B" mechanic's duties at all. "They would only assign me to tasks such as cleaning up the garage," he maintains. Moreover, "no one ever offered me an explanation as to why I was not being assigned mechanic's jobs any more." Bush Affidavit para. 46.

 There is no question in Bush's mind that he was capable of performing his regular duties:

 At this time (the end of April or the beginning of May 1985), there was no reason that I could not have continued to do the same work I had been doing since March 25, 1985. Further, over the month since May 25, 1985, I had not been talked to, warned or disciplined in any way because of poor work performance, nor was I ever told that my restrictions were interfering with my ability to accomplish my duties as a B mechanic.

 Id. para. 47.

 Conversely, Edison claims that it began evaluating Bush's physical limitations in April 1985 in an attempt to determine whether those limitations were permanent, and to investigate "the appropriate occupational placement for him." Bush disputes the latter half, and maintains that Edison's evaluation of appropriate occupational placement was flawed at best. Bush admits, however, that he saw an Edison doctor on May 8, 1985. The doctor, Bush says, took only a brief look at his knee and some X-rays.

 Unable to resolve his differences with Edison over the nature of his December 9, 1983 knee injury (the company continued to maintain that the injury was not industrially related), Bush filed a worker's compensation claim on May 28, 1985. This action, he maintains, resulted in a marked change in Edison's treatment of and attitude toward him. For instance, he alleges that, a couple of days after he filed his claim, his primary supervisor in the garage said, within earshot of another Edison employee and referring to Bush, "That son of a bitch is suing us." Id. para. 52; Rule 12(n) Statement para. 57; Allen Affidavit para. 27.

 It is undisputed that on July 25, 1985, one day after receiving a written report from the company doctor that examined Bush in early May, Edison demoted Bush to the "C" clerk position in its bill adjustment department. *fn1" The parties do dispute, however, the rationale behind that decision. Edison maintains that Bush was demoted "because [Edison] decided that the restrictions resulting from his knee injury were permanent." Rule 12(m) Statement para. 57. Bush disagrees:

 As Plaintiff has consistently alleged throughout this case, Edison's real reason for demoting Mr. Bush was in retaliation for his pursuing his Worker's Compensation Claim against them and because of his race. [Citations omitted]. As set forth above, [Edison] knew that Mr. Bush's injury was not permanent and that Mr. Bush could perform his regular work as a mechanic because Mr. Bush had been doing so since March 25, 1985. [Citations omitted]. In addition, Mr. Bush was not demoted until shortly after he filed his Worker's Compensation Claim . . . .

 Rule 12(n) Statement para. 57.

 The demotion from "B" mechanic to "C" clerk entailed, among other things, a gradual wage decrease from $ 13.93 per hour to $ 8.64 per hour. A "C" clerk's duties included filing, distributing mail to other clerks, operating printing machines, passing out light bulbs to customers, and various paperwork.

 On July 25, 1985, the same day of (but prior to) his demotion, Bush visited Dr. George Shybut at Northwestern Memorial Hospital. Dr. Shybut examined Bush, and told him that he could perform a new type of surgery on Bush's knee that would bring it back to at least 90% of its original strength. Knowing of this possibility, Bush asked at the "demotion" meeting later that day to stay in the transportation department as a "parts man" until he had the surgery and recovered. Bush's superiors denied this request. Bush also asked about the chances of returning to his "B" mechanic's position from the "C" clerk spot after recovery, and was told that "we [will] cross that bridge when we come to it."

 Bush's first full day as a "C" clerk was July 26, 1985. He did not work between July 28, 1985 and August 26, 1985 because of injuries sustained in a car accident. Both parties agree that Bush was suspended from work on September 4, 1985, though they disagree on the story underlying that suspension.

 Bush's version is that, on the morning of September 3, 1985, his former supervisor in the garage called him at home and told him to remove his tools from the garage immediately. Bush asked if someone at the garage could deliver the tools to his home, but that request was refused. Bush had some difficulty in lining up a truck to haul the tools away from the garage, and, noticing the lateness of the hour, called his new supervisor at the bill adjustment department to take the day off to move his tools. This request, Bush emphasizes, was only because the tool removal order was apparently so urgent.

 Bush's new supervisor, Blaine Alsip, refused his request, and instructed Bush to report to work as usual. With conflicting instructions, Bush elected to remove his tools from the garage rather than report for work.

 Edison's version of the September 3 events is similar, although it maintains that Alsip made arrangements with the garage to move Bush's tools for him. Bush denies that such arrangements were made, and claims that he "spent the day attempting to arrange to have my tools moved from the garage." *fn2"

 The parties revisited the events of September 3 the next day. Edison suspended Bush for three days following a meeting involving Bush, Alsip, and ...


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