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LABOUVE v. BOEING COMPANY

August 20, 2005.

JAY E. LABOUVE, Plaintiff,
v.
THE BOEING COMPANY, Defendant.



The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM OPINION AND ORDER

Jay LaBouve ("LaBouve") has sued The Boeing Company ("Boeing"), charging that Boeing violated the Americans with Disabilities Act ("ADA," 42 U.S.C. §§ 12111-12117)*fn1 and the Rehabilities Act of 1973 ("Rehabilitation Act," 29 U.S.C. §§ 793, 794(a)) when it terminated his employment. Boeing has moved for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Boeing's motion is granted and this action is dismissed.

Summary Judgment Standards

  Familiar Rule 56 principles impose on movant Boeing the burden of establishing a lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.C.t 2548, 91 L.Ed.2d 265 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a nonmovant "must produce more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.). Ultimately summary judgment is appropriate only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

  This District Court has implemented Rule 56 through its LR 56.1, which requires both sides to submit factual statements supported by record evidence. In particular, LR 56.1(b) (3) requires any nonmovant (such as LaBouve) who seeks to avoid summary judgment to file "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." In addition the nonmovant is required to submit a "statement, consisting of short numbered paragraphs, of any additional facts [not set forth in the movant's papers] that require the denial of summary judgment . . ." (id.).

  LaBouve and his counsel have failed to comply with LR 56.1. They did not file the required response to Boeing's LR 56.1 (a) (3) statement, nor did they file a statement of additional facts. Instead they merely provided what was characterized as a "summary of facts and circumstances," with some attached exhibits in the memorandum of law opposing Boeing's Rule 56 motion. Most of the "evidence" included in that memorandum comprises inadmissible hearsay, unsupported assertions or citations to evidence that is not properly in the record.

  As such, LaBouve's response to Boeing's 56.1(a) statement is wholly inadequate: It does not comport with the express language of LR 56.1(b)(3) or with its intended purpose. LR 56.1's enforcement provision states that "[a]ll material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party." And our Court of Appeals has "consistently held that failure to respond by the nonmovant as mandated by the local rules results in an admission" (Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003)).

  While this Court would thus be well justified in treating all facts in Boeing's LR 56.1(a)(3) statement as admitted and in refusing to consider any of the "facts" submitted by LaBouve in his memorandum of law (Cichon v. Exelon Generation Co., 401 F.3d 803, 809-10 (7th Cir. 2005)), such an evidentiary death sentence is unnecessary. Even when LaBouve's claims are considered in light of all admissible evidence tendered by LaBouve,*fn2 LaBouve has not submitted facts sufficient to survive Boeing's motion.*fn3

  Factual Background*fn4

  In the late 1970s and early 1980s, the Royal Saudi Air Force ("Air Force") sought to purchase F-15 Eagle fighter aircraft and maintenance services for those aircraft (B. St. ¶¶ 1, 3). Because the F-15 aircraft are military aircraft and because the Kingdom of Saudi Arabia ("Kingdom") is a foreign government, United States law required that the Kingdom negotiate and contract first with our government. Once there was government approval for the Kingdom contracts, the United States Department of Defense ("Department") contracted with McDonnell Douglas Corporation ("McDonnell") for the procurement of the fighter aircraft and with McDonnell Douglas Services ("McDonnell Services"), a wholly owned subsidiary of McDonnell, for aircraft maintenance (id. ¶¶ 2, 4). These contracts were called the "Peace Sun Program" contracts (id. ¶ 5).

  As part of its contract to provide aircraft maintenance to the Kingdom and Air Force, McDonnell Services was required to subcontract out a significant portion (65%) of the maintenance work to Alsalam Aircraft Company ("Alsalam") (id. ¶¶ 10-12). Alsalam is a Saudi Arabian limited liability company established in 1982 as part of the Economic Offset Program of the Kingdom's Ministry of Defense and Aviation (id. ¶ 61-62). Specifically, Alsalam was created to help the Kingdom become self-sufficient in the aerospace industry (id. ¶ 63). Under the Alsalam-McDonnell Services subcontract, McDonnell Services was to provide certain services to Alsalam, including recruiting, mobilization-demobilization (e.g., clearances, travel, passports, etc.) and medical care (id. ¶ 14). Alsalam, however, had its own human resource department and retained complete authority over all other human resource and personnel matters, including the hiring and firing of employees (id. ¶¶ 15-17, 88-92).*fn5 Boeing is a corporation organized under the laws of Delaware (id. ¶ 58). It was never a direct party to the Peace Sun Program contracts, although on August 1, 1997 Boeing acquired McDonnell (id. ¶¶ 7, 9). In addition, at the beginning of 2001, when the events at issue in this case occurred, Boeing, through its intermediary companies and limited liability partnerships, owned approximately 25% of the interest in Alsalam (id. ¶ 75).

  LaBouve was hired by McDonnell Services in July 1995 as a Technician Airplane General to provide maintenance service on F-15 aircraft in the Kingdom (id. ¶¶ 21-22). In 1997, after being directed by the Kingdom and Air Force to shift more maintenance work to Alsalam, McDonnell Services told LaBouve and a number of other McDonnell Services employees that they would be laid off in January 1998 (id. ¶¶ 25-28). LaBouve and the other employees who were to be laid off were given the option of working for Alsalam in essentially the same capacity and on the same terms as they had been under their McDonnell Services contracts (id. ¶ 29-30). LaBouve elected to stay in the Kingdom and work for Alsalam (id. ¶ 31). On January 12, 1998 LaBouve signed an employment contract with Alsalam (id. ¶ 33; L. Ex. F). Two and one-half years later, in July 2000, LaBouve sustained a work-related injury to his neck and back while working in the engine shop at Alsalam (id. ¶ 34). Initially he was treated in the Kingdom, but he was dissatisfied with the quality of care that he was receiving (id. ¶¶ 35, 37). LaBouve therefore returned to the United States in October 2000 for medical care and, after receiving additional physical therapy, had surgery on January 8, 2001 (id. ¶¶ 38-39). Due to his injury LaBouve was absent from work from October 2000 through January 2001 (id. ¶ 41).

  Air Force became dissatisfied with LaBouve because of his absence from work, and in January 2001 it requested that LaBouve be terminated from his position under the Peace Sun Program contracts (B. St. ¶ 42; L. Mem. 5-6; L. Ex. II). Air Force sent a letter to that effect to Department at Warner Robbins Air Force Base, and Department then forwarded Air Force's letter to McDonnell Services (B. St. ¶ 43). Upon receipt of the letter McDonnell Services notified Alsalam of Air Force's request that LaBouve be terminated (id. ¶ 44). Abdullah Al-Akbary, Alsalam's Human Resources Supervisor, notified LaBouve that effective March 27, 2001 he was terminated from the Peace Sun Program contracts and would not return to the Kingdom for further employment with Alsalam.*fn6

  On August 8, 2001 LaBouve filled out an intake questionnaire with the federal Equal Employment Opportunity Commission ("EEOC") (id. ¶ 55; L. Ex. M). Six months later, on February 20, 2002, LaBouve filed a formal Charge of Discrimination with EEOC (L. ...


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