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BRUCE v. ILLINOIS BELL TEL. CO.

September 20, 1994

BRUCE PRESIDENT, Plaintiff,
v.
ILLINOIS BELL TELEPHONE COMPANY, et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Bruce President ("President") has sued Illinois Bell Telephone Company ("Illinois Bell") and Local 165 International Brotherhood of Electrical Workers, AFL-CIO ("Union"), charging that both discriminated against him because of his race and "handicap" in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2(a)(1) and (2), *fn1" and in violation of Illinois state law as well. President also asserts that Union is liable for having "aided and abetted" Illinois Bell in its discriminatory treatment.

 Both Illinois Bell and Union have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, each motion is granted in its entirety and this action is dismissed with prejudice.

 Summary Judgment Standards

 Familiar Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to nonmovant President ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" ( McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir. 1992)), that does not negate the potential for summary judgment in cases where a movant plainly satisfies the Rule 56 standards ( Washington v. Lake County, 969 F.2d 250, 254 (7th Cir. 1992)). In those terms summary judgment for Illinois Bell and Union is appropriate if the record reveals that no reasonable jury could conclude that President was treated in a statutorily prohibited discriminatory fashion ( Kirk v. Federal Property Mgmt. Corp., 22 F.3d 135, 138 (7th Cir. 1994)).

 President's Claims

 President's Complaint charges both Illinois Bell and Union with race and "handicap" discrimination in violation of Title VII. But the latter is plainly not actionable under Title VII--as Jamil v. Secretary, Dep't of Defense, 910 F.2d 1203, 1207 (7th Cir. 1990) says:

 
Title VII is not a general "bad acts" statute; it only addresses discrimination on the basis of race, sex, religion, and national origin. . . .

 Illinois Bell's Mem. 11 asserts an entitlement to summary judgment on President's "handicap" discrimination claim because:

 
nowhere does [President] allege a violation of any federal statute or that Illinois Bell is a federal contractor or subcontractor under the Rehabilitation Act[, 29 U.S.C. §§ 791-795].

 It is true that the Rehabilitation Act's contractual obligations are imposed only on federal contractors or subcontractors (29 U.S.C. § 793 (a)) and that President has offered no evidence that Illinois Bell is either. More to the point, as D'Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1484 (7th Cir. 1985) confirms:

 
Congress intended that the administrative scheme be the sole avenue of redress for the handicapped.

 That means that someone in President's position can assert a claim under that statute only indirectly by seeking judicial review of the determination of the relevant federal agency (see, e.g., Andrews v. Consolidated Rail Corp., 831 F.2d 678, 684-87 (7th Cir. 1987)), something that he has not done here.

 But in the federal practice "the complaint need not identify a legal theory, and specifying an incorrect theory is not fatal" ( Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992)). Although by rights the burden of such identification ought to rest on the litigant's counsel, it is enough if the court can ascertain the law that allows judicial cognizance of the asserted claim ( Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134-35 (7th Cir. 1992)).

 In that respect this Court has also considered (as President's lawyer has not) the potential applicability of the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. §§ 12101-12117. But the short answer there is that President's "handicap" claims are based upon events that occurred no later than 1987, while the provisions of ADA (enacted July 26, 1990) did not become effective until 24 months later (Pub. L. No. 101-336, Title 1, § 108). And there is no basis for applying ADA retroactively (see Landgraf v. USI Film Prods., 128 L. Ed. 2d 229, 114 S. Ct. 1483, 1505 (1994)).

 That means that President's "handicap" claim is dispatched as a matter of law. This opinion will therefore devote itself exclusively to his claims of race discrimination. Because those claims and their relevant facts *fn2" are distinct for the most part as between the two defendants, each defendant's Rule 56 motion will be assessed separately.

 Claims Against Illinois Bell

 Facts

 On June 4, 1979 President, a black male, was hired by Illinois Bell as a repair technician (P-I. 12(n) P 43). On December 24, 1983 (after President's job title had been changed to systems technician) he ruptured a disc in his neck (P-I. 12(n) PP 43-44, President Aff. P 3). Because of that injury President was unable to perform some of the more physically demanding duties of his job--such as climbing poles and carrying and lifting objects such as ladders--and he was placed under medical restrictions and assigned to light duty (I. 12(m) P 5; Dep. 26-27, 61-62; Dep. Ex. at 1).

 Because of the continuing effects of his injury, *fn3" some time in December 1986 President was transferred to the drafting department as a senior drafter, a job for which he had no prior training or experience (I. 12(m) P 5; Dep. 65, 176). It was originally expected that the transfer would be temporary and that President would resume his duties as a systems technician once released to do so by his and Illinois Bell's doctors (Dep. 61, 111-12). At some point President was permanently assigned to the position of a drafter, but he was later able to get his job title of systems technician reinstated (id. 118-20). Throughout President's tenure in the drafting department he was never able to meet the more physically demanding requirements of the systems technician job, and he never actually resumed the duties of that job (id. 27, 61-62, 119-20, 170-72).

 In the drafting department President's immediate supervisor was Shirley Smith ("Smith"), who in turn reported to Herman Page, Jr. ("Page") (Page Aff. PP 2-3). *fn4" Smith supervised thirteen drafters (including President): seven blacks, five whites and one "Indian" (Page Aff. P 4).

 President did not fare well as a drafter. What follows is a summary of the disciplinary and other difficulties that he encountered while working in that capacity.

 On March 10 and 19 and September 10, 1987 President was suspended, *fn5" the first two times for three days each, the third time for five days (Page Aff. PP 5, 6, 8). *fn6" At the time of that last suspension Page told President and his Union representative that if President posed further problems he would be sent to Illinois Bell's medical department for a full examination and that his refusal to report for such an exam could result in disciplinary action, including dismissal (id.).

 More than once Page and Smith also asked President to have a medical evaluation because of his alleged "mood swings" and "singing" in the office and because they "thought there was something mentally wrong with me or that I was on drugs or alcohol" (Dep. 114-16). President consistently refused to comply with those requests (Dep. 110-11). Page and Smith relied both on those concerns and on President's "behavior" in general as a justification to refuse his request to return to his systems technician job (id. 121-23, 126-27). For his part, President denies that there was any aspect of his job performance that justified a suspicion of mental, drug or alcohol problems (id. 121-22), and he also denies that he ever reported "to work under the influence of alcohol or drugs" (President Aff. P 25).

 On October 2, 1987 matters came to a head when before a scheduled meeting among Page, Smith, President and his Union steward (Page Aff. P 9):

 
The plaintiff was observed talking inconprehensibly [sic], fidgeting with objects, leaving his work station every few minutes to go to the water fountain, and not performing his work. I also noticed that his eyes were blood shot and his breath smelled of alcohol. As a result of this behavior, I instructed the plaintiff to accompany me and his union steward to Illinois Bell's medical department. The plaintiff repeatedly refused my directive. As a result, I informed the plaintiff that he was being suspended indefinitely.

 That episode was the catalyst for Page's decision to fire President "based on the plaintiff's overall record" (id. P 10).

 President says that Page insisted he have a medical evaluation, or else be immediately suspended, because of Page's still-present belief that President had a mental, drug or alcohol problem (Dep. 106-07). President was told that if he took the requested evaluation "no disciplinary action would be taken towards me" (id. 117). However, President refused and Page followed through on his suspension threat (id. 105-06).

 Then on October 14, 1987 a dismissal panel (attended by President and his Union representative as well as by Page and the other Illinois Bell representatives) held a meeting at which President's fate was to be determined (Page Aff. P 11). Instead of dismissing President outright, Page testified (id.):

 
I, along with the other Company representatives agreed that if the plaintiff took the health evaluation and tested positive for substance abuse he would be offered substance abuse rehabilitation and when rehabilitated returned to his systems technician duties. If the plaintiff tested negative, we agreed that he would be returned to his prior duties as a system technician immediately.

 President again refused to report to Illinois Bell's medical department, so Page adhered to his earlier decision to dismiss President (id.). President knows of no one else who was required to take such an evaluation, and it was his understanding that Illinois Bell had no stated policy requiring that such a procedure be followed (Dep. 163-64).

 In support of President's claim that his treatment by Illinois Bell was racially motivated, he endeavors to compare that treatment to that of another systems technician Michael Bertowski ("Bertowski"). Some time during the period of President's injury Bertowski injured his arm by falling "on a piece of glass or something" and, like President, was returned to "light duty" (Dep. 158). For about a month President and Bertowski worked together "restocking the storage rooms" (id. 158-59). To President's knowledge Bertowski was never transferred to a job for which he had no prior training, nor was he ever accused of having drug or alcohol problems (id. 157, 166-67 ). However, once President was transferred to the drafting job he did "not specifically" have any ...


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