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WASHBURN v. SAUER-SUNDSTRAND

November 1, 1995

DOUGLAS N. WASHBURN, Plaintiff,
v.
SAUER-SUNDSTRAND, INC., a corporation, SUZANNE SOBKOWIAK, RICHARD COFFEY, and WILLIAM GLASSMAN, Defendants.



The opinion of the court was delivered by: GRADY

 Plaintiff has sued under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging that defendants discriminated against him on the basis of his physical disabilities by terminating his employment. *fn1" Defendants have moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated in this opinion, the motion is granted.

 BACKGROUND

 Plaintiff, Douglas N. Washburn ("Washburn"), worked for defendant Sauer-Sundstrand, Inc. ("Sauer-Sundstrand"). Sauer-Sundstrand is a corporation that operates a manufacturing facility in LaSalle, Illinois. Washburn was employed in this facility as a machinist. He was hired by Sauer-Sundstrand on August 12, 1976. On August 7, 1992, Sauer-Sundstrand placed Washburn on suspension and told him not to come to work. Washburn notified his union, United Auto Workers ("UAW") Local 285, of this action by defendants. Edward Wrobleski, a Vice President of Local 285, subsequently told Washburn to return to work in a couple of days for a meeting with Sauer-Sundstrand personnel.

 On August 12, 1992, Washburn, UAW representatives, and Sauer-Sundstrand representatives met at the LaSalle facility to discuss Washburn's attendance record and suspension. There is some disagreement as to who was present at the meeting. In addition to Washburn, the parties agree that defendants Suzanne Sobkowiak, Human Resources Team Leader, and Richard Coffey, Manufacturing Supervisor, attended on behalf of Sauer-Sundstrand. Also, the parties agree that Ronald Raef, first shift Steward, attended on behalf of the UAW. Defendants state that Wayne Casperson, Manufacturing Team Leader, also attended on behalf of Sauer-Sundstrand, and that George Wilson, a Vice President of Local 285, and Al Espinoza, third shift Steward, also attended on behalf of the UAW. Defendants' Local Rule 12(m) Statement of Material Facts as to Which There is No Genuine Issue ("Defs.' 12(m) Statement") at P 12. Plaintiff states that the additional attendees were defendant William Glassman, Director of Plant Operations of Sauer-Sundstrand, Wrobleski, and John Taylor, Treasurer of Local 285. Plaintiff's Response to Defendant's Statement of Facts ("Pl.'s 12(n) Response") at P 12.

 There is also disagreement between the parties as to the outcome of the meeting. Defendants contend that Washburn was formally terminated for excessive absenteeism. Defs.' 12(m) Statement at PP 1, 13. Plaintiff contends that he was not told he was being discharged, Pl.'s 12(n) Response at P 13, but merely that he was being suspended because of absenteeism, and that he was not told, nor did he ask, how long the suspension would last. Washburn Dep. at 15-16.

 Immediately after the August 12, 1992, meeting, Washburn signed a grievance that had been prepared by Espinoza. Washburn Dep. at 22-23; Espinoza Aff. The grievance protests Washburn's discharge. Espinoza Aff. Ex. 1. Washburn states that he did not read the grievance. Plaintiff's Statement of Additional Facts Which Require the Denial of Summary Judgment ("Pl.'s 12(n) Statement") at P 4. Plaintiff did not receive any paychecks from Sauer-Sundstrand after August 12, 1992. He filed for unemployment benefits in 1992. Defendants state that Washburn's health benefits from Sauer-Sundstrand ceased as of August 12, 1992, and that he was sent a letter dated August 17, 1992, informing him that he had the option to pay for continued coverage under Sauer-Sundstrand's health insurance plan in spite of his termination. Defs.' 12(m) Statement at PP 17-18. Washburn contends that he was not sure whether his health benefits had been terminated, and that he had never received any correspondence from Sauer-Sundstrand regarding health insurance. Pl.'s 12(n) Response at PP 17-18.

 Washburn's grievance was arbitrated on January 21, 1993. The arbitrator upheld Sauer-Sundstrand's termination of Washburn in a determination issued on March 22, 1993. Washburn states that he learned that he had been terminated upon receipt of the arbitrator's determination. Washburn Dep. at 31. Washburn filed a charge of discrimination against Sauer-Sundstrand with the Equal Employment Opportunity Commission ("EEOC") on September 20, 1993. Pl.'s 12(n) Response at P 23. Plaintiff's EEOC charge was dismissed, and a right-to-sue letter was issued, on January 31, 1994. Washburn then filed this suit under the ADA. Defendant has moved for summary judgment.

 DISCUSSION

 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 issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. " Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A "genuine issue of material fact exists only where 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Wallace v. Tilley, 41 F.3d 296, 299 (7th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). In considering such a motion, the court must view all inferences in the light most favorable to the nonmoving party. Tolentino v. Friedman, 46 F.3d 645, 649 (7th Cir.), cert. denied, 132 L. Ed. 2d 856, 115 S. Ct. 2613 (1995). The court will enter summary judgment against a party who does not come forward with evidence that would reasonably permit a finder of fact to find in his or her favor on a material question. McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995).

 Once the moving party has supported its motion for summary judgment, any fact asserted in the movant's affidavit will be accepted by the court as true unless the adverse party submits his own affidavits or other admissible evidence contradicting the assertion. See Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982); see also Fed. R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.")

 Sauer-Sundstrand has moved for summary judgment on the ground that there is no genuine issue of material fact as to whether Washburn's claim is time-barred under the ADA. The ADA, incorporating as it does the "powers, remedies, and procedures" of Title VII, 42 U.S.C. § 12117(a), requires that charges of discrimination be filed with the EEOC within 300 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); Gilardi v. Schroeder, 833 F.2d 1226, 1230 (7th Cir. 1987); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1397-98 (N.D. Ill. 1994). Plaintiff contends that he did not learn until March 20, 1993, that what he thought had been an indefinite suspension on August 12, 1992, had in fact been a discharge. Washburn Dep. at 15-16, 31. Washburn also does not dispute that he filed a charge of discrimination with the EEOC on September 20, 1993, Pl.'s 12(n) Response at P 23, a date that is more that 300 days after August 12, 1992. Failure to satisfy the EEOC 300 day filing requirement is a bar to suit in federal court, but it is not an absolute bar. Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir. 1991). Like a statute of limitations, the filing requirement "is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982).

 "To defeat a motion for summary judgment alleging that the statute of limitations operates to bar the suit, the party opposing the motion must demonstrate the existence of a disputed material fact that presents a genuine issue for trial" as to whether waiver or modification of the limitations period is warranted. Janowiak v. Corporate City of South Bend, 750 F.2d 557, 561 (7th Cir. 1984), rev'd on other grounds, 481 U.S. 1001, 95 L. Ed. 2d 195, 107 S. Ct. 1620 (1987). Plaintiff contends that the dispute over when Washburn learned that he had been terminated on August 12, 1992, as opposed to being merely suspended, presents a genuine issue for trial under the doctrines of equitable estoppel and equitable tolling. Defendants have provided affidavits from three people who attended the August 12, 1992, meeting. Sobkowiak Aff.; Wilson Aff.; Espinoza Aff. All three state that Washburn was told he was discharged at that meeting. Id. Defendants have also provided a copy of a union grievance protesting Washburn's "discharge" that was signed by Washburn and filed on August 12, 1992. Espinoza Aff. Ex. 1; Washburn Dep. at 22-23. Washburn, on the other hand, states that he was not told he was discharged on August 12, 1992, and that he did not read the grievance form he signed. Washburn Aff. at PP 1-2. There is a genuine issue of fact here. However, because the date on which Washburn learned he had been discharged is not material to the question of the applicability of the various equitable modification and waiver doctrines, Washburn cannot withstand summary judgment.

 While plaintiff refers to equitable estoppel and equitable tolling, his argument actually invokes the "'discovery rule' of federal common law, which is read into statutes of limitations in federal-question cases." Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990), cert. denied, 501 U.S. 1261, 115 L. Ed. 2d 1079, 111 S. Ct. 2916 (1991). This rule "postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when he discovers he has been injured." Id. The problem with Washburn's argument is that he did in fact discover his injury on August 12, 1992. Discovery of injury in the employment context occurs "at the time the [adverse employment] decision was made and communicated" to the employee. Delaware State College v. Ricks, 449 U.S. 250, 258, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980); Cada, 920 F.2d at 450. ...


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