United States District Court, Northern District of Illinois, Eastern Division
March 17, 1999
MICHAEL KORZENIOWSKI, PLAINTIFF,
ABF FREIGHT SYSTEMS, INC., DEFENDANT.
The opinion of the court was delivered by: Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Michael Korzeniowski ("Korzeniowski") has sued ABF Freight
Systems, Inc. ("ABF"), asserting that ABF violated the Americans
with Disabilities Act ("ADA," 42 U.S.C. § 12101-12117*fn1) by
discriminating against him because of his arteriosclerotic heart
disease. Korzeniowski brought additional claims of age
discrimination under the Age Discrimination in Employment Act
("ADEA," 29 U.S.C. § 621-634) and intentional infliction of
emotional distress, an Illinois common law claim over which this
Court has 28 U.S.C. § 1367(a) supplemental jurisdiction.
ABF now moves for summary judgment under Fed.R.Civ.P. ("Rule")
56. Both sides have complied with this District Court's General
Rule ("GR") 12(M) and 12(N),*fn2 and the motion is fully briefed
and ready for decision. For the reasons set out in this
memorandum opinion and order, ABF's motion is granted and this
action is dismissed.
Summary Judgment Standards
Familiar Rule 56 principles impose on ABF the burden of
establishing the lack of a genuine issue of material fact
(Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986)). For that purpose this Court must
"read the record in the light most favorable to the non-moving
party," although it "is not required to draw unreasonable
inferences from the evidence" (St. Louis N. Joint Venture v. P &
L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir. 1997)). While
"this general standard is applied with added rigor in employment
discrimination cases, where intent is inevitably the central
issue" (McCoy v. WGN Continental Broad. 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 is appropriate
if the record reveals that no reasonable jury could conclude that
Korzeniowski was treated in a statutorily prohibited
discriminatory fashion (see Fuka v. Thomson Consumer Elecs.,
82 F.3d 1397, 1402 (7th Cir. 1996) and cases cited there).
As with every summary judgment motion, this Court accepts
nonmovant Korzeniowski's version of any disputed facts. What
follows in the Facts section (and in later factual discussion)
is culled from the parties' submissions, with any differences
between them resolved in Korzeniowski's favor. Other relevant
facts, which fit somewhat better into the substantive legal
discussion, will be set out later in this opinion.
Korzeniowski worked as a linehaul supervisor for freight
carrier ABF from September 25, 1995 until he was fired on August
6, 1997 (A.12(M) ¶ 4). Before his discharge Korzeniowski took a
medical leave of absence from October 28, 1996 to January 27,
1997 to undergo leg surgery on a blocked femoral artery (id. ¶
17). When he returned to work (without any restrictions), his
ability to act as a linehaul supervisor was unaffected (id. ¶
18). At the same time, Korzeniowski still had cardiovascular
heart disease and high blood pressure, for which he took
medication, and he has experienced some dizziness and some leg
pain (K.12(N) ¶ 19).
On June 16, 1997 Korzeniowski saw his cardiologist, Dr.
Surendra Avula. Korzeniowski testified that Dr. Avula then
advised him to maintain a "set schedule" so as faithfully to
follow his diet and medication schedule (A.12(M) ¶ 20). But
neither Dr. Avula nor any other doctor has then or ever placed
Korzeniowski under any work-related medical restrictions (id. ¶
After Dr. Avula advised Korzeniowski to maintain a set
schedule, Korzeniowski asked Manager of Linehaul Operations Mike
Brinker ("Brinker") to remove him from the rotating shift
schedule. Brinker complied with Korzeniowski's request, placing
him on his preferred day-shift-only schedule,*fn3 despite the
fact that Korzeniowski never provided any medical documentation
of his need to work a non-rotating schedule (id. ¶¶ 23-25).
On August 6, 1997 linehaul supervisor Jim Fisher ("Fisher")
missed his road side day shift due to a family emergency (id. ¶
27). To solve the scheduling problem, Brinker had called
Korzeniowski the evening before to ask if he would work the night
shift. When Korzeniowski said he preferred not to, Brinker kept
him on the day shift but assigned him to the road side position
instead of his normal shuttle side position. Brinker based that
decision on the fact that Korzeniowski had previously worked as a
road side linehaul manager for ABF, while the other linehaul
supervisor available that day was new and had no road side
dispatching experience (id. ¶ 29).
At about 5:00 a.m. August 6, Brinker called shuttle linehaul
supervisor Douglas Allen ("Allen") and asked him to tell
Korzeniowski about his assignment and to tell him that Brinker
would be in early to help him work road side (id. ¶ 30).
Korzeniowski arrived shortly after that call, and Allen told him
of his change in assignment (id. ¶ 31). According to ABF,
Korzeniowski became upset and said that he was not going to work
the road side shift (id. ¶ 32). However, Korzeniowski says (and
this Court therefore credits) that he never told anyone he would
not work the road side position (K.12(N) ¶ 32).
Korzeniowski then approached Scott Mayberry ("Mayberry"), the
supervisor whom he was supposed to relieve on the road side
shift. While Mayberry was finishing up, Korzeniowski told
Mayberry that he wasn't feeling well. At about 6:15 a.m. he left
work without first seeking the approval of a superior management
(A.12(m) ¶ 33). Korzeniowski testified that he drove to Christ
Hospital, calling his wife from his car phone on the way and
telling her to meet him there. He told her he was experiencing
chest pains and tingling in one arm (K.Dep.105-06).
Mayberry testified that he did not believe Korzeniowski was
sick, but that he left work because he was angry about being
assigned to the road side. Those beliefs were based in part on an
earlier conversation when Korzeniowski told Mayberry that he
would quit if ABF ever assigned him to work road side again.
Mayberry also testified that Korzeniowski did not appear ill and
did not say why he felt sick (A.12(M) ¶ 34).*fn4 In fact
Korzeniowski never told anyone at ABF that he was having chest
pains or that he was leaving to go to the hospital, nor did he
call an ambulance or ask anyone to drive him to the hospital
(id. ¶ 35).
When Brinker arrived at ABF at 7:15 a.m., Mayberry told him
that Korzeniowski had left work after becoming upset about his
assignment. Mayberry also informed Brinker that Korzeniowski
claimed to feel ill, but that Mayberry did not believe him (id.
¶ 39). Brinker then called Allen at home to investigate further.
Allen told him that Korzeniowski was very upset about being
assigned to road side, so that he refused to fill that position
and then left work (id. ¶ 40). As noted earlier, Korzeniowski
contests that version of events — and in that respect this
opinion credits the ABF people's account of their conversations,
though it does not credit their characterization of
Korzeniowski's reason for leaving (which is what he really
Brinker testified that he believed Korzeniowski's actions
constituted job abandonment. He called Director of Transportation
Columbus Dalmut ("Dalmut") and Director of Personnel Dan Griesse
("Griesse"), both of whom agreed that Korzeniowski should be
fired for job abandonment (id. ¶¶ 41-45).
After the decision to terminate Korzeniowski had been made,
Korzeniowski's wife called Brinker and said her husband was in
the emergency room with chest pains. Brinker, Dalmut and Griesse
testified that the information did not change their belief that
Korzeniowski had abandoned his job. They felt he was simply
trying to cover up his decision to abandon his job (id. ¶¶
47-48). On August 7, 1997 Brinker sent Korzeniowski a letter
stating that his employment had been terminated for job
abandonment (id. ¶ 49).
ADA § 12112(a) reads:
No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges
To recover under ADA a plaintiff must show, paraphrasing White
v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995):
1. that he is a disabled person within ADA's
definition of that concept;
2. that he is also "qualified" in the sense defined
in Section 12111(8); and
3. that the employer terminated him because of his
Of course the first of those three requirements presents a
threshold question: If a person is not "disabled" there is no
need to proceed further with the inquiry (Roth v. Lutheran Gen.
Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995)). And for that purpose
Reg. § 1630.2(g) defines "disability" with respect to an
(1) A physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;
(2) A record of such an impairment; or
(3) Being regarded as having such an impairment.
Here Korzeniowski lays claim to disability status under each of
the first and third criteria.
For its part, ABF does not dispute that arteriosclerotic heart
disease is an "impairment" for ADA purposes. It argues instead
that Korzeniowski's health problems do not amount to a disability
(see the teaching in Roth, 57 F.3d at 1454 that not every
"impairment" is necessarily an ADA "disability"). To satisfy the
disability standard, Reg. § 1630.2(g)(1) requires that the
impairment "substantially limits one or more . . . major life
Although ADA itself does not define "substantially limits" or
"major life activity," the Regulations provide guidance that the
case law has honored as definitive. "Major life activities"
include "functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning,
and working" (Reg. § 1630.2(i)). And under Reg. § 1630.2(j)(1)
the term "substantially limits" describes a person who is:
(i) Unable to perform a major life activity that the
average person in the general population can perform;
(ii) Significantly restricted as to the condition,
manner or duration under which an individual can
perform a particular major life activity as compared
to the condition, manner, or duration under which the
average person in the general population can perform
that same major life activity.
Finally, these three factors are to be considered in any
determination of whether an individual is substantially limited
in a major life activity (Reg. § 1630.2(j)(2)):
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the
(iii) The permanent or long term impact, or the
expected permanent or long term impact of or
resulting from the impairment.
K.Em. 4 says that Korzeniowski is substantially limited in his
ability to walk, work and have sexual intercourse. But analysis
reveals that none of those claims, either singly or in
combination, meets the disability standard.
As for Korzeniowski's claimed impotence, this opinion need not
address whether such a condition could ever constitute a
disability, because the testimony cited for that asserted
impairment indicates only that he had a temporary problem while
taking a previous medication (K.12(N) ¶ 57).*fn6 Such a
temporary condition does not rise to the level of a disability.
As for Korzeniowski's difficulty in walking, he says that since
his leg surgery he experiences numbness if he walks "great
distances" (K.Dep.217-18). On that score, an inability to walk
"great distances" with complete comfort is not a significant
restriction on Korzeniowski's ability to walk,
in terms of the relevant comparison to the average person's
ability to walk.
Finally, Korzeniowski argues that he is substantially limited
in his ability to work because his health condition prevents him
from working rotating shifts.*fn7 Even assuming that to be true
(although the evidence is certainly unclear on this point), such
a restriction does not constitute a substantial limitation on the
major life activity of working. Just as in Roth, 57 F.3d at
1454-55 a surgeon's inability to work long shifts due to an eye
condition did not rise to disability level, Korzeniowski's
asserted inability to work rotating shifts does not meet that
standard either. As Patterson v. Chicago Ass'n for Retarded
Citizens, 150 F.3d 719, 725 (7th Cir. 1998) (internal quotation
marks and citation omitted) has reconfirmed:
This Court has held that an inability to perform a
particular job for a particular employer is not
sufficient to establish a substantial limitation on
the ability to work; rather, the impairment must
substantially limit employment generally.
And just within the past few weeks the Court of Appeals for the
First Circuit has addressed and rejected the same kinds of
contentions that Korzeniowski advances here, upholding summary
judgment in an employer's favor with the use of language readily
transferable to this case (Tardie v. Rehabilitation Hosp.,
168 F.3d 538, 541-42 (1st Cir. 1999)).
Here innumerable jobs are of course available that do not
involve rotating shifts. In fact, within two months after his
termination by ABF Korzeniowski obtained a job with another
trucking company (and he is still employed) as a road side
dispatcher (A.12(M) ¶ 5) — a job that is not suggested as
involving greater work demands than the one he held with ABF —
though it has a non-rotating schedule (K.12(N) ¶ 64). It would
indeed be a bizarre notion of disability under which Korzeniowski
could claim statutory incapacity even while he is holding and
performing an essentially equivalent job.
In sum, Korzeniowski is simply not substantially limited in any
major life activity, be it working, walking or having sex. So he
loses on his effort to involve Reg. § 1630.2(g)'s first
definition of disability.
As for the alternative third regulatory distinction,
Korzeniowski offers no evidence that ABF regarded him as
disabled. K.Mem. 6-7 points only to the fact that he asked to be
put on a non-rotating shift as purported evidence that ABF
regarded him as disabled. As already explained, that request did
not indicate that he was substantially limited in a major life
activity. Without any other evidence, Korzeniowski cannot
establish that ABF regarded him as disabled.
Because there is no genuine issue of material fact as to
whether Korzeniowski is substantially limited in any major life
activity or whether ABF regarded him as such, ABF's motion for
summary judgment on Korzeniowski's ADA claim is granted. That
claim is dismissed with prejudice.
Although Korzeniowski, who was 51 when ABF terminated him, is
within the scope of ADEA coverage, his discharge did not violate
that statute either. Even if Korzeniowski's version of events is
fully credited, with this Court assuming that ABF fired him
because he left work to go to the hospital after he had really
suffered chest pains,*fn8 he still cannot make out an ADEA
claim. Under Rule 56 jurisprudence, he must at least create a
reasonable inference that ABF fired him because of
his age, and no evidence even hints that his age was considered
It is worth noting that each of Brinker, Griesse and Dalmut,
the main players in Korzeniowski's termination, was over 40 years
of age at the time (Brinker was 43, Dalmut 50 and Griesse 41)
(A.12(M) ¶ 68) — see Mills v. First Fed. Sav. & Loan Ass'n,
83 F.3d 833, 842 (7th Cir. 1996), finding it "significant, though
perhaps not dispositive," that allegedly discriminatory conduct
was committed by someone who was over 40 and was 2 years older
than plaintiff. Furthermore, Brinker himself had previously
suffered a heart attack (A.12(M) ¶ 68). As Wallace v. SMC
Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997) has put it
in a Title VII case, "[a] little common sense is not amiss in a
discrimination case," thus calling it "highly unlikely" in the
circumstances there that a decisionmaker in the protected class
would be prejudiced against another member of that class.
Finally, Brinker himself had recommended Korzeniowski for his
job in 1990, when Korzeniowski was already over 40 (A.12(M) ¶
13). Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996)
(citation and quotation marks omitted) has in material part
quoted from Proud v. Stone, 945 F.2d 796, 796 (4th Cir. 1991)
to underscore the common sense significance of that fact in
another ADEA case:
Claims that employer animus exists in termination but
not in hiring seem irrational. From the standpoint of
the putative discriminator, it hardly makes sense to
hire workers from a group one dislikes (thereby
incurring the psychological costs of associating with
them), only to fire them once they are on the job.
The fact that the actor involved in both employment
decisions is also a member of the protected class
only enhances the inference.
K.Mem. 10-12 offers a confusing argument that ABF's
decisionmaking process was not "deliberate, reasoned and fair,"
pointing to supposed contradictions between Brinker's deposition
and Dalmut and Griesse's affidavits. But apart from momentarily
diverting this Court from the actual issue at hand, that
contention does nothing to support Korzeniowski's ADEA claim. He
does not even attempt to characterize his arteriosclerotic
condition as a proxy for age (perhaps a more tenable, though
still a losing, argument). As A.Mem. 8 states accurately, under
the cases Korzeniowski could not establish liability under ADEA
merely by claiming that his age is somehow connected to his
health (see Hazen Paper Co. v. Biggins, 507 U.S. 604, 611-13,
113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), finding that a plaintiff
cannot establish an ADEA claim by pointing to the correlation
between age and pension status; EEOC v. G-K-G, Inc.,
39 F.3d 740, 746 (7th Cir. 1994), stating that terminating an employee to
save salary costs "would be a lawful motive" even though there is
a high correlation between age and compensation).
Because no genuine issue of material fact exists as to whether
ABF fired Korzeniowski based on his age, Korzeniowski's ADEA
claim also fails. ABF's summary judgment motion as to the ADEA
claim is also granted, and that claim too is dismissed with
Intentional Infliction of Emotional Distress Claim
With both of Korzeniowski's federal claims having been
dispatched, the 28 U.S.C. § 1367(a) jurisdictional underpinning
for his common law claim charging ABF with the intentional
infliction of emotional distress has been removed. In that
respect United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726,
86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (footnotes omitted) remains
the seminal authority:
Needless decisions of state law should be avoided
both as a matter of comity and to promote justice
between the parties, by procuring for them a
surer-footed reading of applicable law. Certainly, if
the federal claims are dismissed
before trial, even though not insubstantial in a
jurisdictional sense, the state claims should be
dismissed as well.
Just a few months ago Payne v. Churchich, 161 F.3d 1030
(7th Cir. 1998) confirmed that the UMW v. Gibbs teaching is
still alive and well in this Circuit:
Indeed, when the district court dismisses all federal
claims before trial, the usual and preferred course
is to remand the state claims to the state court
unless there are countervailing considerations.*fn9
There are, to be sure, two limited exceptions identified the
earlier decision in Moses v. County of Kenosha, 826 F.2d 708
710-11 (7th Cir. 1987) (per curiam):
1. if the statute of limitations has run on the
nonfederal claim, precluding filing of a separate
state lawsuit; or
2. if "substantial judicial resources have already
been committed, so that sending the case to another
court will cause a substantial duplication of effort"
(id., quoting Graf v. Elgin, J. & E. Ry.,
790 F.2d 1341, 1347-48 (7th Cir. 1986)).
That first exception is inapplicable because of the saving
provision of 735 ILCS 5/13-217, and the second exception is
inapplicable because this Court has not given substantial
consideration to Korzeniowski's retaliation claim. In the latter
respect, judicial economy is not served by a federal court's
retention of a state claim where a state court would face no more
work (Moses, 826 F.2d at 711).*fn10
intentional infliction of emotional distress claim is dismissed
Korzeniowski has failed his burden of demonstrating the
existence of any genuine issue of material fact (even with the
benefit of favorable inferences) that would support a prima facie
case of disability or age discrimination.*fn11 Accordingly ABF
is entitled to judgment as a matter of law on the ADA and ADEA
claims. Both of those claims are dismissed with prejudice.
Korzeniowski's claim for intentional infliction of emotional
distress is dismissed without prejudice. Finally, this
combination of rulings calls for dismissal of this entire action.