The opinion of the court was delivered by: Honorable John W. Darrah
MEMORANDUM OPINION AND ORDER
Plaintiff Robert W. Schumacher has filed a four-count Complaint against
Defendant Communications Contractors, Inc. ("CCI"), alleging: (I)
retaliatory discharge in violation of the Illinois Workers' Compensation
Act, (II) discrimination in violation of the Americans with Disabilities
Act ("ADA"), (III) multiple violations of the Family and Medical Leave
Act ("EMLA"), and (IV) discrimination in violation of the Age
Discrimination in Employment Act ("ADEA"). CCI has moved for summary
judgment pursuant to FED.R.CIV.P. 56. For the reasons that follow,
Defendant's Motion for Summary Judgment on Counts II, III, and IV is
GRANTED, and Plaintiff's Count I is REMANDED for lack of federal
jurisdiction pursuant to FED.R.CIV.P. 12(h)(3).
Summary judgment is proper "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); Patel v. Allstate Insurance Co., 105 F.3d 365, 367
(7th Cir. 1997). The movant bears the initial burden of establishing that
the record presents no genuine issue of material fact. Essex v. United
Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). Then the
burden shifts to the nonmoving party to "set forth specific facts showing
that there is a genuine issue for trial." FED.R.CIV.P. 56(e).
The non-movant cannot succeed in creating a factual dispute solely by
resting on allegations in the pleadings but must produce evidence showing
there is a disputed issue for trial. Selan v. Kiley, 969 F.2d 560, 564
(7th Cir. 1992). In order to withstand summary judgment, the non-moving
party "must do more than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Only genuine disputes over facts that
might affect the outcome of the suit under the governing law will
properly preclude summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242,
Considering the parties' Local Rule 56.1(a) & (b) statements of
material facts (referred to herein as "Pl.'s 56.1" and "Def.'s 56.1") and
drawing all reasonable inferences from the evidence in Plaintiff's
favor, the facts, for purposes of resolving the summary judgment motion,
are as follows.
Plaintiff Robert Schumacher was born on February 7, 1936. (Pl.'s 56.1
¶ 1). Plaintiff was fifty-eight when he was hired as a journeyman
technician by CCI on April 27, 1994. (Pl.'s 56.1 ¶ 2). Plaintiff was
a member of the International Brotherhood of Electrical Workers Union
Local 134 ("Local Rule 134"). (Def.'s 56.1 ¶ 1).
Plaintiff was hired by Brian Fitzgibbons. (Pl.'s 56.1 ¶ 4).
Fitzgibbons is the CCI employee responsible for staffing and managing
CCI's work crews. (Def.'s 56.1 ¶ 11). Fitzgibbons is not an officer
of CCI but has supervisory authority to hire, fire, and generally manage
CCI's labor force. (Def's 56.1 ¶ 11). Fitzgibbons periodically lays
off CCI employees during slow times and has done so one or two times per
year in the past. (Def.'s 56.1 ¶ 12). All personnel decisions
concerning union employees are made by either Fitzgibbons or CCI's
President, Edman Lis. (Def.'s 56.1 ¶ 16).
CCI's collective bargaining agreement ("the agreement") with Local 134
covers employees involved in the telecommunications industry. (Def.'s
56.1 ¶ 17). Dave Rehberg is the Local 134 official who represents
CCI's employees on union matters. (Def.'s 56.1 ¶ 17). Rehberg
represents union members on issues such as the negotiation of agreements
and the handling of grievances and arbitrations. (Def.'s 56.1 ¶ 18).
The agreement contains a provision allowing members to take ninety days
per year of unpaid medical leave. (Def.'s 56.1 ¶ 21). Members needing
more than ninety days' leave must make a written request to the employer
asking for an extension. (Def.'s 56.1 ¶ 21). From 1993 to 1994, the
Union's medical leave was only thirty to sixty days. (Def.'s 56.1 ¶
22). The plan was amended to incorporate a ninety-day provision to
conform to the requirements of the FMLA. (Def's 56.1 ¶ 22).
While at CCI, Schumacher worked as a journeyman data technician on a
variety of jobs under a number of different foremen and project
managers. (Def.'s 56.1 ¶ 24). Schumacher's work history with CCI was
"generally satisfactory." (Def.'s 56.1 ¶ 24). In 1995, Schumacher
suffered a back injury on a CCI job site for which he filed a workers'
compensation claim. (Def.'s 56.1 ¶ 25). Following the injury and
several days' recuperation, he returned to work at CCI. (Def's 56.1
¶ 25). In 1996, Schumacher took approximately five weeks of unpaid
medical leave, pursuant to the agreement, to undergo non-work related
neck surgery. (Def.'s 56.1 ¶ 26).
On Friday, April 17, 1998, Schumacher was working at the Carmax job
site in Hillside, Illinois, moving fiberoptic cable with another CCI
employee, Ben Woods. (Def.'s 56.1 ¶ 27). While he was moving the
cables, he suffered a torn aorta. (Pl.'s 56.1 ¶ 7). Mike Starnes,
CCI's acting site foreman, immediately called for emergency assistance.
(Def.'s 56.1 ¶ 28). An ambulance arrived shortly thereafter, and
Schumacher was taken to the emergency room at Elmhurst Hospital. (Def.'s
56.1 ¶ 28). In the meantime, Starnes called one of CCI's corporate
officers, Chris Walsh to inform him of the situation. (Def.'s 56.1 ¶
28). Walsh instructed Starnes to go with Schumacher to the hospital and
wait there until Schumacher's family arrived and to fully inform them of
what had happened. (Def.'s 56.1 ¶ 29). Starnes went to the hospital
in accordance with Walsh's instructions. (Def.'s 56.1 ¶ 29). After
Schumacher's wife arrived at the hospital, Walsh told Starnes to return
to the job site and secure Schumacher's personal belongings and to offer
to return Schumacher's car to his home. (Def.'s 56.1 ¶ 30).
Plaintiff worked with three other CCI employees at the Carmax job
site-Michael Starnes, Joseph Horn, and Ben Woods. (Pl.'s 56.1 ¶ 7).
As of October 12, 1998, Michael Starnes was thirty-seven years old,
Joseph Horn was thirty-six years old,