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MARSILI v. ARLINGTON HTS. FIRE DEP'T

January 13, 1998

RUDOLPH MARSILI, Plaintiff,
v.
THE ARLINGTON HEIGHTS FIRE DEPARTMENT, THE VILLAGE OF ARLINGTON HEIGHTS, a Municipal, Corporation, BRUCE RODEWALD, individually and in his capacity as Chief for the Arlington Heights Fire Department and CHARLES C. KRAMER, individually and in his official capacity as Deputy Chief of the Arlington Heights Fire Department, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff Rudolph Marsili has filed a five-count amended complaint pursuant to the Age Discrimination Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), against the Arlington Heights Fire Department ("Department"), the Village of Arlington Heights ("Village"), a Municipal Corporation, Bruce Rodewald ("Rodewald"), individually and in his official capacity as chief of the Department, and Charles C. Kramer ("Kramer"), individually and in his official capacity as deputy chief of the Department. Count I alleges that defendants violated the ADEA by repeatedly rejecting plaintiff's application for admission to a paramedic training course on account of his age. Count II alleges that two of the defendants, the Village and the Department "knew and/or showed reckless disregard for the matter of whether their conduct alleged in Count I was prohibited by the ADEA." Count III, which alleges a claim under 42 U.S.C. § 1983 for the alleged age discrimination, was dismissed on plaintiff's motion. Counts IV and V are state law claims for intentional infliction of emotional distress and breach of contract. Defendants have moved to dismiss pursuant to Fed. R. Civ. P. 12(b) or in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56(c ) on all counts of the complaint. Because defendants' motion relies on affidavits and documents not contained in the complaint, the court will treat it as filed under Rule 56. For the reasons set forth below, the court grants defendants' motion on Count I and dismisses Counts II, IV, and V.

 FACTS1

 Plaintiff was born on September 20, 1934. He was hired by the Village as a firefighter on October 3, 1966. In 1972, the Department instituted a paramedic training program whereby it sponsored eligible and interested firefighters in obtaining their paramedic training certification. In 1992, plaintiff began expressing interest in becoming a certified paramedic. Specifically, in direct response to several memoranda addressed to all Village personnel interested in attending the paramedic training program, plaintiff submitted written requests to the paramedic program administrator on April 22, 1992, November 21, 1992, May 2, 1993, December 14, 1993, and August 5, 1994. Neither party has provided any facts or circumstances regarding plaintiff's 1992 requests to attend the program in their briefs, Local Rule 12(M) or 12(N) statements, or in their supporting depositions or affidavits. With regard to plaintiff's May 1993 request, plaintiff was the only firefighter who expressed any interest in attending the program at that time.

 The Village denied outright all but one of plaintiff's requests. In response to his December 14, 1993 request, however, plaintiff was directed to contact the paramedic course administrator at the Northwest Community Hospital for an interview and a pre-test. At the same time, two other firefighters, Bernie Lyons and Michael Nolan, also submitted requests and were directed to interview and take the pre-test. After taking the pre-test, Nolan withdrew his enrollment request. Plaintiff marginally passed the pre-test, receiving a score that indicated a potential difficulty mastering the course material. Lyons' pre-test score, on the other hand, indicated that he would have little trouble mastering the course material. Nonetheless, the Department decided not to enroll anyone in the course at that time. When the course was offered the following fall, defendants elected to send Lyons, who was younger than the protected age group.

 In 1991, the Department entered into a contract with the firefighters which required the Department to enroll the most senior conditional employee in the paramedic training program. Pursuant to the contract, in 1993, the Department enrolled firefighter Edward Szarek in the course because he was the most senior conditional employee. Szarek, like plaintiff, had received a marginally passing pre-test grade.

 Department members testified that the Department considers the following factors when making course enrollment decisions: manpower constraints; availability of individuals; the amortization of the cost of the training over the candidate's expected additional years of service; and the best interests of the Department. With regard to the last factor, the contract between the Village and the Arlington Heights Firefighters Association states that the personnel decisions "shall be based on overall assessment of departmental needs."

 On his Employee Performance Rating Report in November 1991, prior to any of the incidents of which plaintiff complains, plaintiff listed as his only "goal[] or improvement program[] to be undertaking during [the] next evaluation period," "Health, Wealth, and Retirement." In May 1993, plaintiff applied for retirement but subsequently withdrew his request upon realizing that he had used more vacation days than the Department had authorized and would have had to pay the Village back pay if he had retired at that time. On November 28, 1995, plaintiff submitted his application for retirement and subsequently retired.

 Plaintiff filed a charge of age discrimination with the Equal Employment Opportunity Commission and the Illinois Department of Human Rights on October 25, 1995. On April 22, 1996, the EEOC issued plaintiff a Notice of the Right to Sue. Shortly thereafter, plaintiff filed this lawsuit alleging that defendants had discriminated against him on the basis of age by refusing his repeated requests to attend the paramedic training program. Plaintiff subsequently dismissed Count III of his complaint.

 ANALYSIS

 Under Fed. R. Civ. P. 56(c ), summary judgment is appropriate if "there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c ). A genuine issue of material fact exists only when the evidence could allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). When reviewing a motion for summary judgment, the Court must read the facts in the light most favorable to the non-moving party. Id. at 255, 106 S. Ct. at 2513.

 Defendants have moved for summary judgment on all counts arguing that no genuine issue of material facts exists as to whether they violated the ADEA when they refused to enroll plaintiff in the paramedic training program.

 Under the ADEA, a plaintiff may prove age discrimination in one of two ways. He may try to prove discrimination directly "by presenting direct or circumstantial evidence that age was the determining factor in [plaintiff's] discharge." Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994). Or, a plaintiff "may utilize the indirect, burden-shifting method of proof for Title VII cases originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and later adapted to age discrimination claims under the ADEA." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992)(quoting Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988)).


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