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March 30, 2001


The opinion of the court was delivered by: Honorable John W. Darrah


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, 248 (1986).


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, and ...

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