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March 5, 1993



The opinion of the court was delivered by: RONALD A. GUZMAN

Pending is Defendant's, AIC Security Investigations, LTD., AIC INTERNATIONAL, LTD., and Ruth Vrdolyak's, (collectively "AIC") motion for summary judgment. For the reasons listed below it is hereby ordered that this motion be denied.


 This action is brought pursuant to Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The EEOC and the Intervening Plaintiff, Charles Wessel ("Wessel"), allege that AIC discriminated against Wessel on the basis of his disability, terminal cancer, by discharging him from his position as Executive Director at AIC.

 Wessel was hired by Victor Vrdolyak in February 1986 and reported to Victor Vrdolyak until his death on June 6, 1992, and to David Pack, President of AIC International, until Pack's termination on July 6, 1992. In his position of Executive Director, Charles Wessel was the Chief Executive of the security guard division. The Executive Director position which Wessel held was at all times during his employment the highest management position in AIC, and accordingly, Wessel was responsible for the overall management and profitability of AIC. The position of Executive Director required, as an essential function, overall management and direction of the 300 plus employees of the company, from all management level personnel to watch commanders and ultimately hundreds of security guards employed by AIC. This position also required, as an essential function, dealing with labor unions, supervising investigations, tracking litigation AIC was involved in, the development of policy, site walk throughs, handling labors matters, establishing price rates and monitoring and disciplining subordinates.

 Wessel is a widely recognized leader in the security guard industry, having worked in the industry for approximately thirty years. He is licensed as a private detective and a private security contractor by the State of Illinois and the State of Florida. Wessel is also a member of, and has served on the Board of numerous professional associations within the security industry, including the Associated Detectives of Illinois, the Associated Guard and Patrol Agencies, Inc, and the Special Agents Association. In addition, Wessel served as the principal drafter of the Illinois licensing act for private investigators and security guards.

 When Wessel started with AIC, he had emphysema caused by smoking 2-4 packs of cigarettes a day for approximately 25 years and 8-10 cigars a day for 15 years, and he had a back injury rendering him 20 percent disabled under his V.A. disability. In June, 1987, Wessel was diagnosed with lung cancer. Following surgery and recuperation Wessel returned to work at AIC. In July, 1991, Wessel suffered pneumothorax during a biopsy and went into respiratory arrest. Thereafter, Wessel was again diagnosed with lung cancer; this time affecting his right lung. Surgery was performed, and following a period of treatment and recuperation, Wessel again returned to work as Executive Director of AIC. In April 1992, Wessel was initially diagnosed in April, 1992 with 2 tumors, and subsequently, in June, 1992, with 2 additional tumors, for a total of 4. Wessel's doctors considered his condition to be terminal and he was told sometime in April, 1992 that he had six to twelve months to live. Wessel has received radiation treatments since this diagnosis but these treatments have been palitative, that is, not for the purpose of a cure, but to prolong and assure some quality of Wessel's life.

 Wessel continued to work at AIC throughout the course of the treatments, although on the days when the radiation treatments were scheduled in the afternoon, he had to leave work at approximately 2:30 p.m. The amount of time Wessel was absent from work is disputed. The EEOC and Wessel allege that Wessel had two treatments in July of 1992 and he did not miss a full day of work on either of those two days nor did he miss any other work in July of 1992. AIC claims that he missed 15 workdays in April and May of 1992, several days in June, 1992 and 2 days in July, 1992. Further, between July 29th and August 13th, 1991 Wessel missed 16 days of work when he experienced a pneumothorax during his routine one-day biopsy. He missed 2 half days and one full day in August of 1991, and he missed approximately 33 days between October 3rd and November 4th, 1991 for surgery to remove his right lung. Dr. Nomanbhoy, Wessel's primary treating physician, restricted Wessel's driving because of lesions in the occipital lobe of the brain and in December of 1992 Wessel experienced seizures. Dr. Petras, a radiation oncologist treating Wessel informed Ruth Vrdolyak in a telephone conversation that Wessel had been advised not to drive. Larry Roberts, the Executive Vice President of AIC's Systems Division, offered Wessel a driver which Wessel refused.

 On or about June 10, 1992, Mrs. Vrdolyak hired Beverly Kay to work for AIC. On July 28, 1992, Kay had a meeting with Wessel. During that meeting, Kay apprised Wessel that Mrs. Vrdolyak had decided that it was time for Wessel to retire. On July 30, 1992, Kay advised Wessel by telephone that his employment at AIC was terminated effective July 31, 1992. Wessel was paid through July 31, 1992. Prior to his termination from AIC, Wessel was never subject to any warnings relating to his performance, his attendance, or any disciplinary action.


 The United States Supreme Court set forth the following principles to be applied in ruling on a motion for summary judgment:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law." By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact.
As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. This materiality inquiry is independent of and separate from the question of the incorporation of the evidentiary standard into the summary judgment determination. That is, while the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs. Any proof or evidentiary requirements imposed by the substantive law are not germane to this inquiry, since materiality is only a criterion or categorizing of factual disputes in their relation to the legal elements of the claim and not a criterion for evaluating the evidentiary underpinnings of those disputes.
More important for present purpose summary judgment will not lie if the dispute about a material is "genuine." that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.

 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505, (1986). See also Celotex Corporation v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548, (1986).

 The Court went on to say that "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 .

 When a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Id. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, or is not more than a scintilla, a summary judgment may be granted. The substantive evidentiary standard of proof that would apply at a trial on the merits applies on a motion for summary judgment. Id. at 2512.

 Further, Local Rule 12(m) requires a party opposing a motion for summary judgment to file, in addition to the evidentiary materials allowed by Rule 56(e), a response listing the factual assertions by the movant with which the opponent disagrees. Bell, Boyd, & Lloyd v. Tapy, 896 F.2d 1101, 1102 (7th Cir. 1990). The list must be supported by specific references to the evidentiary materials relied on and must set forth any additional facts that require denial of summary judgment, also supported by specific references in the record. Any facts asserted by the movant and not contradicted in the manner specified by the Rule are deemed admitted pursuant to Local Rule 12(l) and (m). Id., at 1102.

 Therefore, this court must determine whether the EEOC has offered any evidence to create a genuine issue of fact as to AIC's summary judgment claim against the EEOC and Wessel. In doing so, this court will ...

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