BURMISTRZ v. CITY OF CHICAGO

The opinion of the court was delivered by: Morton Denlow, United States Magistrate Judge:

Plaintiff Anthony S. Burmistrz ("Plaintiff"/"Burmistrz") filed a two-count amended complaint against his former employer City of Chicago ("Defendant"/"City"). Count I was brought against Defendant alleging discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213. Count II alleges Defendant retaliated against Plaintiff in violation of the ADA. Defendant moves for summary judgment contending Plaintiff's claims are untimely and Plaintiff cannot establish disparate treatment, denial of a reasonable accommodation, or retaliation. Because Plaintiff's claims were untimely filed, Defendant's motion for summary judgment is granted. Additionally. Defendant articulated a legitimate non-discriminatory reason for Plaintiff's termination, this reason was not pretextual, and Plaintiff was not denied a reasonable accommodation.

I. BACKGROUND FACTS

A. The Parties

Burmistrz began working as an ironworker in the City's Department of Transportation in 1981. (Pl. Res. ¶¶ 4, 5).*fn1 In 1985 Plaintiff became a subforeman of ironworkers and in October 1996, his job title became foreman of ironworkers. (Pl. Res. ¶¶ 6, 7). The Defendant is the City of Chicago. (Pl. Res. ¶ 1).

B. Plaintiff's Foreman Position

As an ironworker, Plaintiff's duties included ironwork repair to maintain bridges and roadways. (Pl. Res. ¶ 5). In 1985, he became subforeman and in 1996 he became foreman. (Pl. Res. ¶¶ 6, 7). The job duties of a foreman and sub foreman are generally the same. (Def. Res. ¶ 6).*fn2

The primary function of the foreman is to supervise and coordinate the work of bridge and structural ironworkers and to coordinate that work under the general direction of the Acting General Foreman of Ironworkers. (Pl. Res. ¶ 8). The foreman job is a full-time, 40 hour per week position with overtime as necessary. (Pl. Res. ¶ 10). A regular foreman s shift begins at 7:00 a.m. and concludes at 3:30 p.m. (Id.). Foremen are hourly employees, and under the Collective Bargaining Agreement ("CBA") between the City and the International Association of Bridge, Structural and Reinforcing Ironworkers, Local 1, the foreman and ironworkers are not granted any sick days. (Id.).

C. Plaintiff's Supervisors

Plaintiff had many supervisors during his tenure with the City. Raymond Gaik was Plaintiff's immediate supervisor for the last seven months of Plaintiff's employment between April and November, 1998. (Pl. Res. ¶ 11). Robert Serpe served as general foreman from the mid to late-1990's, working out of the facility where the ironworkers reported. (Pl. Res. ¶ 12). Effective April 1, 1998, Serpe was assigned to an office, and Gaik became "acting" general foreman assuming Serpe's prior duties. (Id.) Michael Pavichevich was a general foreman for seven and a half to eight years, before being demoted to foreman in September. 1995. (Pl. Res. ¶ 13). Pavichevich was then made acting general foreman for eight to nine months in 1996 or 1997. (Id.).

Stan-Lee Kaderbek is the Chief Engineer for the Bureau of Bridges and Transit within the City's Department of Transportation serving in that capacity from May 1993 to present. (Pl. Res. ¶ 14). His duties include general oversight of all day labor and bridge tender personnel, overseeing the general operations of the Bureau, and overseeing budget and personnel matters, including those of bridge and structural ironworkers and their supervisors. (Id.).

Robert Boskovich is the executive officer of Local 1, Ironworkers, the local union belonging to the International Association of Bridge, Structural, Ornamental, and Reinforcing Ironworkers. (Pl. Res. ¶ 15). His duties involve the operations of the local and negotiating contracts for the local. (Id.).

D. Plaintiff's Medical Problems*fn3

Burmistrz asserts he was diagnosed in 1996 with a disability known as somatization*fn4 disorder. (Pl. Dep. at 45, 73-74). Burmistrz also states he suffers from acute anxiety' disorder and acute depression with panic disorder. (Pl. Dep. at 45). Additionally, Burmistrz claims he became sick and had various problems such as stomach problems, insomnia, and a nervous condition. (Serpe Dep. at 12). Plaintiff's illness also prevented him from attending work at times. (Pl. Dep. at 215). After periods of hard work, he claims he experienced heavy cramps in his stomach and needed to immediately use the washroom; he would then experience weakness and insomnia. (Id.).

Although Plaintiff does not remember whether or not he told any employee at the City about his diagnosis, he thinks he would have tried to have kept it quiet. (Pl. Dep. at 74). He did not recall telling any ironworkers he was suffering from a mental impairment because "that is the last thing you want them to know." (Pl. Res. ¶¶ 20, 21).

However, Plaintiff did speak with Serpe on several occasions regarding his health problems. (Def. Res. ¶ 17; Serpe Dep. at 40). In 1995, Serpe noticed for the first time that Plaintiff was emotional, stressed, and looked like he needed sleep. (Serpe dep. at 40). In 1995 and 1996, Serpe spoke with Plaintiff's doctors regarding his health problems and satisfied himself that Plaintiff was indeed sick. (Serpe dep. at 49-57). Serpe also claims he received a note from Plaintiff's doctor explaining Plaintiff was under a doctor's care and what his treatments were. (Def. Res. ¶ 19 with objection; Serpe dep. at 59). Additionally, over the phone, Serpe states he was told Plaintiff's condition was chronic stomach disorder and the doctor used a "big word" and said it was due to stress. (Serpe Dep. at 60).

Plaintiff never discussed his medical or health condition with Kaderbek. (Pl. Res. ¶ 23). Boskovich knew nothing about Plaintiff's alleged disability. (Pl. Res. ¶ 24). Pavichevieh stated he knew nothing about Plaintiff's mental health, and believed Plaintiff was as sane as he was. (Pl. Res. ¶ 25). Pavichevich also does not recall being told about what medications Plaintiff was taking. (Pl. Res. ¶ 28).

Plaintiff never informed Gaik he was suffering from a disability (Pl. Res. ¶ 17); however, Pavichevieh claims Gaik knew Plaintiff had stomach problems and was prone to take oil work every once in a while. (Pavichevich Dep. at 83-84). Plaintiff also never informed Gaik he had a sickness or medical condition that would affect his ability to call in when he would be absent from work, nor did he ask that he not be required to call in. (Pl. Res. ¶ 19).

F. The Collective Bargaining Agreement

A CBA was in effect between Local 1 and the City of Chicago, from July 1, 1995 through June 30, 1999. (Pl. Res. ¶ 45). Plaintiff was covered by the CBA. (Id.).

The CBA states at Section 2.1 "The union recognizes that certain rights, powers, and responsibilities are solely and exclusively vested in the employer . . . including the right to suspend, discipline, or discharge for just cause." (Pl. Res. ¶ 46). Furthermore, at Section 8.4, entitled "Break in Service," the CBA states "Notwithstanding the provision of any ordinance or rule to the contrary, continuous service of an employee is broken, the employment relationship is terminated, and the employee shall have no right to be rehired, if the employee . . . is absent for five (5) consecutive work days without notifying the employee's ...