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HIRSCH v. NATIONAL MALL & SERV.

November 20, 1997

SHARON HIRSCH FOR THE ESTATE OF PAUL HIRSCH, Plaintiff,
v.
NATIONAL MALL & SERVICE, INC., AND PHOTO-VEND, INC., Defendants.



The opinion of the court was delivered by: MORAN

 Paul Hirsch (Hirsch) was an employee of Photo-Vend, Inc. (Photo-Vend) for thirty-two years before he was terminated in July or August of 1994. National Mall & Service, Inc. (National-Mall) is a company related to Photo-Vend by common ownership or management. In response to his termination Hirsch instituted this action. While the action was still pending Hirsch died from non-Hodgkins lymphoma, a type of cancer. His wife, Sharon Hirsch, was substituted as plaintiff and continues the action on behalf of Hirsch's estate. The action consists of four counts.

 In Count I, plaintiff alleges that when defendants decided to terminate Hirsch's employment with Photo-Vend they discriminated against him on the basis of a disability (his cancer) in violation of the Americans with Disabilities Act (ADA). In Count II, plaintiff alleges that by terminating Hirsch defendants discriminated against him on the basis of age in violation of the Age Discrimination in Employment Act (ADEA). In Count III, plaintiff alleges that by firing Hirsch defendants intentionally interfered with his right to receive health insurance benefits in violation of Section 510 of ERISA. In Count IV, plaintiff alleges that defendants fired Hirsch in retaliation for his use of Photo-Vend's health insurance plan in violation of Illinois Health Insurance Claim Filing Act, 820 ILCS 45/0.01 et seq.

 In the present motion defendants ask the court to grant summary judgment on all counts of plaintiff's first amended complaint. Plaintiff has voluntarily nonsuited Counts II and IV, but opposes defendants' motion on Counts I and III. In this order we grant defendants' motion on Count I, and deny on Count III.

 BACKGROUND

 From 1962 to 1994 Paul Hirsch was an employee of Photo-Vend, Inc., a company that markets and places vending machines in various locations. During the period of time relevant to this case Elmer Schmitt was Photo-Vend's president and sole shareholder. During the same period, Carl Schmitt, Elmer Schmitt's son, was an officer and director of Photo-Vend and president of a related company, National Mall & Service, Inc.

 Paul Hirsch began working for Photo-Vend in 1962. His job was to find new sites for the vending machines. He may have also serviced existing customers, but the parties disagree on this point. While employed by Photo-Vend, Hirsch was covered by the company's employee insurance plan, administered by an insurance provider called "Guardian." In the early 1990s Hirsch developed a form of cancer known as non-Hodgkins lymphoma. Both Elmer and Carl Schmitt were aware of Hirsch's condition. As his cancer progressed, Hirsch was increasingly forced to use the benefits provided under his employer-provided health insurance. At the same time, the Schmitts were concerned about the financial condition of their company.

 In May 1994, Carl Schmitt met with a representative from Guardian to discuss the coming year's premiums and coverage proposal. These amounts were reviewed and adjusted on an annual basis. Guardian's representative informed him that Photo-Vend's plan cost would go up ten to twelve per cent for the coming year. Photo-Vend also received its annual financial statement during May 1994, which reflected a downturn in business since March of that year. Plaintiff claims Hirsch also spent time in the hospital during this period of time, although the parties do not provide medical records or the specific date or duration of each stay. At some point during this period of time Hirsch asked Photo-Vend if he could work at home two days each week. Photo-Vend, however, refused this request.

 In June 1994, Elmer and Carl Schmitt realized that they would have to make some budgetary adjustments to deal with Photo-Vend's lack of business. They discussed how terminating Paul Hirsch would affect Photo-Vend's finances. Carl Schmitt calculated how much money the company would save by firing Hirsch, including the amounts that would be saved by not having to pay for his health care. In late July or early August, Carl Schmitt telephoned Paul Hirsch and terminated his job. Hirsch received six weeks severance pay and was offered nine months of continuing health care benefits.

 Hirsch filed this action against National Mall and Photo-Vend on March 17, 1995. He died on January 2, 1996, and Sharon Hirsch was substituted as plaintiff. On August 19, 1996, plaintiff filed her first amended complaint.

 DISCUSSION

 I. Summary Judgment Standard

 A motion for summary judgment may be granted where the pleadings and evidence present no genuine issues of fact and the movant is consequently entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Renovitch v. Kaufman, 905 F.2d 1040, 1044 (7th Cir. 1990). The movant must point to those portions of the record that demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. The reviewing court shall draw all reasonable inferences in favor of the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). When it is ...


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