under section 8.4 of the collective bargaining agreement that I was absent
five days without notifying an authorized supervisor. I called into an
answering machine (from a number I was given on a paper) everyday. The
termination letter asked me for a response, so I sent the enclosed
response and received nothing as an answer. Therefore I am petitioning
Local 1 officers to file a lawsuit on my behalf for wrongful
termination." (Pl. Res. ¶ 97). In this letter, Plaintiff meant to say
he knew he had been fired on November 20, 1998, not November 18, 1998.
(Pl. Res. ¶ 98). Plaintiff also testified he "believe[d] the City of
Chicago, Department of Transportation supervisors terminated [him] before
the union could be involved." (Pl. Res. ¶ 99).
Upon receipt of Plaintiff's letter, Boskovich, on behalf of Local 1,
responded to Plaintiff by letter dated December 21, 1998, informing
Plaintiff he was "advised to appear before the Executive Board at 6:00
p.m. on Monday, December 28, 1998. This meeting is in response to your
letter dated December 18, 1998 and is being held on an emergency basis."
(Pl. Res. ¶ 100). As requested, Plaintiff appeared before the Local 1
Executive Board on December 28, 1998. (Pl. Res. ¶ 101). At this
meeting, Boskovich asked Plaintiff if he wanted Local 1 to file a lawsuit
on his behalf, and Plaintiff stated he did not, as he felt his own
attorney would do a better job. (Pl. Res. ¶ 102).
L. Plaintiff's EEOC Charge
Plaintiff's Amended Complaint indicates he filed a charge with the
Equal Employment Opportunity Commission ("EEOC"), concerning his
discharge, on November 22, 1999. (Pl. Res. ¶ 103). However,
Plaintiff's EEOC Charge of Discrimination contains a stamped date of
October 13, 1999. (Pl. Res. ¶ 104). Plaintiff cannot recall whether
he filed his EEOC charge on October 13, 1999 or November 22, 1999. (Pl.
Res. ¶ 105).
In Plaintiff's EEOC charge, at paragraph 7, Plaintiff stated
"[e]mployers finalized Complainant's termination on December 28, 1998."
(Pl. Res. ¶ 106). Additionally, in the box titled "DATE MOST RECENT
OR CONTINUING DISCRIMINATION TOOK PLACE (month, date, year)," Plaintiff
wrote December 28, 1998. (Pl. Res. ¶ 107). When Plaintiff was
questioned regarding the date December 28, 1998 appearing on his EEOC
charge, he testified "maybe they made a mistake on writing the date up."
(Pl. Res. ¶ 109). Furthermore, when Plaintiff was asked "[d]o you
have any reason to believe that you were terminated in December of 1998
because of your need of accommodation, or is it as you testified earlier
that it was actually November 20th," Plaintiff replied "I was terminated
in November." (Pl. Res. ¶ 110). Thus, Plaintiff stated the December
28, 1998 statement in the complaint was inaccurate. (Id.).
II SUMMARY JUDGMENT STANDARD
Defendant moves for summary judgment on the issues of whether
Plaintiff's claim was timely filed and whether Defendant discriminated
and retaliated against Plaintiff in violation of the ADA. Summary
judgment is proper "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with 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); Sinkler v. Midwest Prop Mgmt. Ltd P'ship, 209 F.3d 678,
682-83 (7th Cir. 2000). A genuine issue of material fact exists for trial
when, in viewing the record and all reasonable inferences drawn from it
in a light most favorable to the non-movant, a reasonable jury could
return a verdict for the non-movant. Sinkler, 209 F.3d at 683;
Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
The movant bears the burden of establishing that there exists no
genuine issue of material fact. Hedberg v. Indiana Bell Tel. Co.,
47 F.3d 928, 931 (7th Cir. 1995); Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S.Ct. 2548, 2554 (1986). If the movant meets this burden, the
non-movant must set forth specific facts that demonstrate the existence
of a genuine issue for trial. Rule 56(c); Celotex, 477 U.S. at 324, 106
S.Ct. at 2549. Rule 56(c) mandates the entry of summary judgment 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." Celotex, 477 U.S. at 322,
106 S.Ct. at 2547. A fragment of evidence in support of the non-movant's
position is insufficient to successfully oppose a summary judgment
motion; "there must be evidence on which the jury could reasonably find
for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252, 106 S.Ct. 2505, 2512 (1986). This burden must be met by appropriate
citations to relevant evidence and cannot be met with conclusory
statements or speculation. Brasic v. Heinemann's Inc., Bakeries,
121 F.3d 281, 286 (7th Cir. 1997).
Weighing evidence, deciding credibility, and inferring reasonable
deductions are responsibilities for a jury and not for a judge to decide
in making a summary judgment determination. Anderson, 477 U.S. at 255,
106 S.Ct. at 2513.
III. ISSUES TO BE DECIDED
Defendant's motion for summary judgment raises the question of whether
material issues of fact exist regarding the following issues: 1) whether
Plaintiff's claims were timely filed with the EEOC; 2) whether Plaintiff
can establish the elements of a prima facie case of disparate treatment
under the ADA; 3) whether Plaintiff was denied a reasonable accommodation
under the ADA; and 4) whether Plaintiff was retaliated against in
violation of the ADA.
A. Plaintiff's Claim Was Not Timely Filed With The EEOC
Defendant first argues Plaintiff's ADA claim is time barred because
Plaintiff did not file his charge with the EEOC within 300 days of the
occurrence of a discriminatory action. The Court agrees. The ADA adopts
the enforcement procedures governing Title VII actions, including the
filing procedures and timing requirements. See, 42 U.S.C. § 12117(a).
Under Title VII and the ADA, an Illinois claimant must file a complaint
before the EEOC within 300 days of the occurrence of the alleged
discriminatory action.*fn5 42 U.S.C. § 2000e-5(e) and §
12117(a); Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 707 (7th
Cir. 1995). Failure to file within the 300 days renders the charge
untimely and the claimant is precluded from bringing the claim in court.
Koelsch, 46 F.3d at 707.
The "limitations period begins to run on the date that the defendant
takes some adverse personnel action against the plaintiff, and not when
the full consequences of the action are felt." Davidson
v. Indiana-American Water Works, 953 F.2d 1058, 1059 (7th Cir. 1992) citing
Delaware State College v. Rick, 449 U.S. 250, 258, 101 S.Ct. 498, 504
(1980). The 300 day limit begins running when the defendant takes the
action that injures the plaintiff and when the plaintiff knows he was
injured, see Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir.
2001), "not when he determines that the injury was unlawful." Thelen v.
Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995).
In this case, the date of the adverse personnel action was the date of
Plaintiff's termination, November 20, 1998. On November 20, 1998,
Plaintiff reported to work at 6:50 a.m. and was informed by co-workers he
had been terminated. Plaintiff also received a letter on November 20,
1998, at his home, explaining why the City terminated him. However,
Plaintiff did not file his EEOC charge until October 13, 1999, 327 days
after the adverse personnel action.
Plaintiff had knowledge of his injury and its alleged unlawfulness more
than 300 days before he filed his EEOC charge. Plaintiff testified he in
fact received the letter and it "stated clearly that [he] was
terminated." More importantly, Plaintiff responded to the letter by
writing his own letter, dated November 23, 1998, to Kaderbek. In
Plaintiff's letter to Kaderbek, he explained how he was informed he was
fired. Plaintiff also made remarks indicating he understood an adverse
personnel action was taken against him on November 20, 1998. Also in
Plaintiff's letter to Kaderbek, he stated "[m]y last wish was that I
would have to file a lawsuit, outlining the many problems we have had in
the past . . . I have, this day, secured legal council [sic] and will
move in this direction . . . I believe this report will be reasuring
[sic] as to my honesty and for future litigation." Although Thelen states
the date a plaintiff's action accrues is when he discovers he has been
injured and not when he determines his termination is unlawful, 64 F.3d
at 267, in this case, Plaintiff fully discovered both that he had been
injured and that the termination was allegedly unlawful, on November 20,
Plaintiff claims the adverse personnel action occurred on December 28,
1998 — the date of the meeting before the Executive Board of Local
1 — and, therefore, he filed his EEOC charge on October 13, 1998,
289 days later. Plaintiff is mistaken. This meeting was held in response
to Plaintiff's letter to Local 1 officials. At this meeting, Boskovich
asked Plaintiff if he wanted Local 1 to file a lawsuit on his behalf.
Plaintiff stated he did not, as he felt his own attorney would do a
better job than a union attorney. Thus, both Local 1 and Plaintiff were
aware the adverse personnel action had already occurred prior to this
meeting by their reference to filing a lawsuit.
Plaintiff also fails to address any exceptions to the 300 day limit.
Even had Plaintiff raised the exception of equitable estoppel —
where "the defendant takes active steps to prevent the plaintiff from
suing in time, . . . such as by hiding evidence or promising not to plead
the statute of limitations," Speer v. Rand McNally & Co., 123 F.3d 658,
663 (7th Cir. 1997) — it would have been denied.
The Seventh Circuit holds providing "opportunities for internal review
is not the sort of deception that supports equitable estoppel." Id.
Furthermore, when an "employer provides an avenue . . . for review of
adverse employment actions, without more, the doctrine of equitable
estoppel is not applicable." Sharp, 236 F.3d at 372. Lastly, "pursuing a
grievance via an internal grievance proceeding does not postpone accrual
of a claim under Title VII." Id. at 373. This case law directs that
the clock does not stop ticking because the employer offers an avenue for
grievance. Even though, in this case, it was the union, not the
employer, who provided an avenue for grievance, the clock still does not
stop ticking. Therefore, Defendants motion for summary judgment is
granted because Plaintiff's EEOC charge was not timely filed.
B. Plaintiff Was Not Discriminated or Retaliated Against In Violation of
Even had Plaintiff's EEOC charge been timely filed, Plaintiff still
would not have survived summary judgment. Defendant had a legitimate
non-discriminatory reason for Plaintiff's termination that was not
pretextual and Plaintiff was not denied a reasonable accommodation.
1. Defendant's Reason For Plaintiff's Termination Was Legitimate,
Non-Discriminatory, And Not Pretextual
The ADA prohibits discrimination against "a qualified individual with a
disability because of the disability of such individual in regard to
. . . discharge of employees." 42 U.S.C. § 12112(a). When, however,
plaintiff is unable to show any direct evidence of discrimination, as in
this case, plaintiff must instead indirectly demonstrate discrimination
through the burden-shifting analysis of McDonnell Douglas Corp. v.