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LEVAR v. FREEMAN DECORATING CO.

June 25, 1997

DANA LEVAR, Plaintiff,
v.
FREEMAN DECORATING CO.; GREYHOUND EXPOSITION SERVICES, INC.; UNITED STEELWORKERS OF AMERICA DRAPERY, SLIP COVER, WINDOW SHADE, VENETIAN BLINDS, EXHIBITION, FLAG AND BUNTING DECORATORS UNION LOCAL 17U; THOMAS THOMAS, As an Individual and Agent of Local 17U; and ERIC GRIFFITHS, As an Individual and Agent of Local 17U, Defendants.



The opinion of the court was delivered by: HOLDERMAN

 JAMES F. HOLDERMAN, District Judge:

 Plaintiff Dana Levar has filed a complaint alleging discrimination and retaliation in violation of the American with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., as well as state law claims of battery and retaliation pursuant to the Illinois Workers Compensation Act. Defendants Greyhound Exposition Services, Inc. (GES), and Freeman Decorating Co. (Freeman) have both filed motions for summary judgment. Upon evaluation of the appropriate materials and for the reasons stated herein, defendants' motions for summary judgment are granted as to plaintiff's claims for all acts occurring from February 22, 1994 through May 13, 1994, and the motions are denied as to all remaining claims.

 STATEMENT OF FACTS

 On October 13, 1994, plaintiff resubmitted his application with identical documents except for a revised claim form, in which plaintiff changed the description of his past health status of May 13, 1994. Question 8 on the claim form was "Are you still totally disabled?" (Exh. A of Pl. Appx. to Pl. Resp.). On May 13, plaintiff wrote, "No (am back with restrictions)," while in October plaintiff left the answer blank. Id. The next question asked, "If not, when were you able to resume work?" Id. In May plaintiff wrote, "4-18 4-25 5-5 1994 (all dates I was refused employment because of my disability)," while in October plaintiff again left the answer blank. Id. The application next asked, "If still disabled, when do you expect to resume work?" Id. In May plaintiff stated, "I have tried but referral halls not placing me in jobs that contractors will accept me." Id. In October plaintiff responded, "When doctor releases me with restrictions." Id. In December 1994, plaintiff received a check for $ 8,283.68 representing "time loss" benefits for the period of February 22, 1994 to May 22, 1994 *fn1"

 DISCUSSION

 After plaintiff was able to find work in June 1994 at another company, plaintiff filed a complaint that is now modified by a Bill of Particulars which the parties have treated as an amended complaint. Plaintiff alleges that defendants, GES and Freeman, discriminated against him by refusing to employ him from April 18, 1994 through the present because of his disability - his back condition - as well as for retaliation against plaintiff's filing of his ADA and worker's compensation claims. Plaintiff also alleges that from September 1992 through January 1994, GES refused to employ him because of his back condition. Lastly, plaintiff alleges that Freeman failed to properly accommodate plaintiff's disability while he worked for Freeman from October 8, 1993 to January 13, 1994. Defendants have filed motions for summary judgment which claim that (1) the older allegations against GES are time-barred, (2) plaintiff has no evidence regarding any tortious acts of Freeman prior to April 1994, (3) plaintiff is judicially estopped from claiming that he could work from January 14, 1994 through May 13, 1994, and thus defendants could not have discriminated against him during this period, and (4) plaintiff is also judicially estopped from claiming discrimination from May 14, 1994 through the present.

 ANALYSIS

 I. GES has not Shown that Plaintiff's Allegations are Time-Barred

 Summary judgment is appropriate only if there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Testerman v. EDS Technical Products Corp., 98 F.3d 297, 301 (7th Cir. 1996). The non-moving party is entitled to the benefit of all reasonable inferences. Id. GES contends that plaintiff has alleged only two days when discrimination occurred - September 5, 1992 and April 22, 1994 - and that the former incident is time-barred because plaintiff did not file his complaint with the EEOC within the 300 days allowed. GES' motion, though, ignores several of plaintiff's allegation against GES. In paragraph 55 of the Bill of Particulars, plaintiff alleges that GES received a letter dated October 8, 1993 which demanded that plaintiff be employed and accommodated by GES. In the next paragraph, plaintiff alleges, "After receiving the letter ... GES continued to discriminate against Levar under the ADA by refusing to refer or employ Levar." Pl. Bill of Part. P 56.

  Examining plaintiff's allegations in total, GES has not shown that summary judgment is appropriate. Under the "continuing violation" theory, potentially time-barred allegations may be allowed when the employer's decision takes place over a period of time, making it difficult to pinpoint the exact day a violation occurred. Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992). While GES recognizes the "continuing violation" theory, GES only argues that plaintiff's 1992 and 1994 allegations involve two distinct non-continuous events. It is not readily apparent, though, that plaintiff's 1992 and 1993 allegations involve isolated actions. The 1993 acts are within the 300-day requirement, and thus plaintiff's 1992 allegations would be allowed if linked with the later acts. See id. at 564. Considering that the question of when a discriminatory act occurs is a question of fact ( Lever v. Northwestern University, 979 F.2d 552, 553 (7th Cir. 1992), cert. denied, 508 U.S. 951, 113 S. Ct. 2443, 124 L. Ed. 2d 661 (1993)), the court cannot say that a rational factfinder could not find the 1992 and 1993 actions linked. Because GES' motion has not sufficiently established the undisputed facts that would entitle it to summary judgment, its motion for summary judgement concerning the alleged acts of 1992 is denied.

 II. Plaintiff has Provided Evidence of Discriminatory Acts by Freeman from October 1993 to January 1994

 Freeman moves for summary judgment on the basis that plaintiff has no evidence to sustain its claims against Freeman for the period from October 1993 to January 1994. Plaintiff has responded with evidence - his own affidavit - that Freeman refused to assign plaintiff to positions which could accommodate his disability even though such positions were available. Freeman has not claimed that plaintiff's affidavit is not based on personal knowledge or would not be admissible evidence, and thus the affidavit is sufficient to create a ...


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