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September 19, 2005.

JAMES A. MARINE, Plaintiff,

The opinion of the court was delivered by: RONALD GUZMAN, District Judge


Plaintiff James A. Marine has sued H.J. Mohr & Sons, Co. ("Mohr Co.") for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and for breach of the collective bargaining agreement ("CBA") under which the plaintiff was employed in violation of section 301(a) of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). Marine has also sued Local No. 786, International Brotherhood of Teamsters ("the Union") for breach of the duty of fair representation under the LMRA. Before the Court are defendants' motions for summary judgment. For the reasons provided in this Memorandum Opinion and Order, the Court grants the motions.


  Unless otherwise noted, the following facts are undisputed or have been deemed admitted pursuant to Local Rule 56.1, which this Court strictly enforces. Steve Mohr, vice president of Mohr Co., hired James Marine as a full-time ready-mix driver in March 1995. (Def. Mohr's LR 56.1(a)(3) ¶¶ 10, 23.) As an employee of Mohr Co., Marine was a member of a bargaining unit represented by the Union, which is affiliated with the International Brotherhood of Teamsters. (Def. Union's LR 56.1(a)(3) ¶ 1; Def. Mohr's LR 56.1(a)(3) ¶ 3.)

  The terms and conditions of Marine's employment were governed by a CBA between Mohr Co. and the Union for the years of 2000 to 2004. (Def. Union's LR 56.1(a)(3) ¶ 1, Def. Mohr's LR 56.1(a)(3) ¶ 3.) The CBA provides procedures for filing grievances as well as provisions regarding seniority of employees and the maintenance of seniority. (Def. Union's LR 56.1(a)(3) ¶ 2.) The CBA also provides that "an employee's seniority shall be lost and terminated and the employment relationship terminated by discharge for just cause, resignation or failure to return to work upon recall after a layoff within seven working days after a recall notice by telegram or by certified mail." (Id. ¶ 4.)

  The CBA's seniority provision divides employees into groups, the first group being chauffeurs, the second, quarry or pit chauffeurs and lastly, laborers and other employees not covered in the chauffeur groups. (Id.) The CBA further provides that an employee in one seniority group may not bump an employee within another group except in the case of permanent layoffs or in the case of certain exceptions in other seniority provisions, and an employer is not required to assign employees to perform work for which they are not qualified. (Id.)

  The CBA's grievance procedure provides that an employee has the right to present grievances to his employer and have the grievances adjusted. (Def. Mohr's LR 56.1(a)(3) ¶ 18.) The grievance must be presented within seven days of the day the event that gives rise to the grievance occurs, and no party is required to consider any grievance that is not presented within that time period. (Id.) The grievance procedure further states that an employee who is no longer employed has no recourse under the CBA for complaints regarding wages or conditions of his employment, except for grievances relating to his discharge. (Id. ¶ 19.) Although Marine nev saw a copy of the CBA that governed the terms and conditions of his employment with Mohr Co., Marine was aware that there was a grievance procedure he could utilize while employed by Mohr Co. (Id. ¶¶ 20, 21.) Marine has never filed a grievance. (Id. ¶ 22.)

  Since the beginning of Marine's employment with Mohr Co. in 1995, Steve Mohr has known that Marine suffers from asthma. (Id. ¶ 25.) Marine has sought treatment for his asthma, and with treatment, he functions in a normally. (Id. ¶ 29.)

  In the first year of his employment with Mohr Co., Marine told Steve Mohr on various occasions that his asthma was bad, to which Steve Mohr responded, "get your ass in here, we're busy today." (Pl.'s LR 56.1(b)(3)(B) ¶ 142.) Due to Steve Mohr's responses, Marine went into work despite his asthmatic condition. (Id.) Steve Mohr also accused Marine of wanting to stay home when he requested days off from work due to his asthma. (Id. ¶ 143.)

  In 1996, Marine resigned from Mohr Co. because Mohr Co. denied his request to drive an air conditioned truck in 1995 and because Steve Mohr falsely accused him of breaking his truck, but Steve Mohr reinstated him a few weeks later after he requested his job back. (Id. ¶ 144.) At various times after Marine's reinstatement, when he requested time off from work, Steve Mohr stated that he needed Marine at work and that Mohr Co. was busy. (Id. ¶ 145.)

  In the late 1990s, after informing Steve Mohr he was leaving, Marine left work due to an asthma attack and went to the hospital for breathing treatments. (Def. Mohr's LR 56.1(a)(3) ¶¶ 62-63.) The next day, Steve Mohr accused Marine of vomiting in the bathroom the day before, which Marine denied, to which Steve Mohr responded, "Don't start. Go clean it up or go find a new f____ing job." (Id. ¶ 65.)

  In May 2001, Marine suffered an asthma attack at work and informed Steve Mohr he needed to go to the hospital. (Id. ¶¶ 48-49.) Marine reported for work the next day. (Id. ¶ 51.)

  From September 19 to September 22, 2001, Marine was hospitalized due to an asthma attack. (Id. ¶ 52.) He believes that someone from Mohr Co. called the hospital to verify that Marine was being treated. (Id. ¶ 54.) Marine attended a follow-up doctor's appointment on September 27, 2001, and when Marine asked to leave early, Steve Mohr responded, "I can't promise anything. I'll see what I can do." (Id. ¶ 45.) Marine was granted time off for follow-up visits on October 11, 2001, November 1, 2001 and June 3, 2002. (Id. ¶ 46.) In 2002, Marine stopped requesting time off for doctor visits and instead furnished Celeste Mohr, Steve Mohr's wife and an employee of Mohr Co., with doctor's notes subsequent to the appointments as confirmation that he was at the doctor's office. (Id. ¶ 43.) Marine took time off to visit his doctor on July 8, 2002, September 16, 2002, September 23, 2002, October 28, 2002, January 21, 2003 and August 22, 2003. (Id. ¶ 47.) Marine was never disciplined regarding his absences from work to attend doctor appointments. (Id. ¶ 44.)

  In December 2003, Mohr Co. closed down for two weeks over Christmas, during which time Marine took vacation. (Id. ¶ 76.) In January 2004, Marine requested vacation pay for the vacation he had taken in December 2003 and was told by Celeste Mohr that Mohr Co. "did not have it." (Id. ¶ 66.) When Marine reported to work after his vacation, Steve Mohr told Marine he should have called in because there was not much work, but he allowed Marine to help out in the yard. (Id. ¶ 77.) Marine was laid off by Steve Mohr in mid-January. (Id. ¶ 79.) Marine had been laid off in prior years and believed that his January 2004 lay off was seasonal and would last a month or two. (Id. ¶ 80.) During Marine's lay off, Mohr Co. retained Steve Mohr's daughter's boyfriend, Phil Manno, who was training to be a driver, to perform construction and maintenance and to help Mohr Co. become OSHA and EPA compliant. (Pl.'s LR 56.1(b)(3)(B) ¶ 160.) Manno was paid at the semi ready-mix truck driver rate for his work. (Id. ¶ 164.)*fn1 In previous years at Mohr Co., Marine had worked during the winters performing various other duties including driving other types of trucks, working in the yard, shoveling snow and working in the warehouse. (Def. Union's LR 56.1(a)(3) ¶ 32.) In early February, Marine received a call from an employee at Mohr, who stated that Manno was working steadily for Mohr during the winter and nobody was complaining to the Union about it. (Def. Mohr's LR 56.1(a)(3) ¶ 93.) As a result, Marine called Mohr Co. and asked Marlene Mohr, Steve Mohr's daughter who answered phones, if he could work a full week. (Id.) Marlene told him he could not. (Id.)

  In February, Marine found employment as a driver for T & M Express, which leases trucks to a company named Klem. (Id. ¶¶ 82-83.) On February 24, 2004, Marine received a phone call from Marlene Mohr, who informed Marine that her father wanted to speak with him. (Id. ¶ 99.) Steve Mohr and Marine had a phone conversation regarding rumors that were being spread about Thomas Walsh, deceased, a former driver for Mohr Co. who was Steve Mohr's nephew. (Id. ¶ 101.) Steve Mohr stated that his niece Tracy was told by another driver that Mohr called Thomas Walsh a drug addict and a drunk. (Pl.'s LR 56.1(b)(3)(B) ¶ 169.) Steve Mohr told Marine that he did not need Tracy starting trouble or Marine going behind his back and squealing. (Def. Mohr's LR 56.1(a)(3) ¶ 102.) Marine told Steve Mohr that he did not say anything, to which Mohr responded, "Well, I don't want you here no more and I'm not bringing you back and you better stay working for Klem." (Id. ¶ 103.)

  On February 25, 2004, Marine went to Mohr Co. to determine if in fact he was terminated. (Id. ¶ 105.) Steve Mohr and Marine had the same conversation that they had had the previous day over the phone. (Pl.'s LR 56.1(b)(3)(B) ¶ 170.) Marine denied spreading rumors, to which Steve Mohr responded, "Well, I can deal with Kevin [Richards, Steve's brother-in-law] squealing behind my back, but I can't deal with you squealing behind my back, so I'm getting rid of you." (Def. Mohr's LR 56.1(a)(3) ¶ 108.) At the time, Marine believed the rumor was the reason Steve Mohr was terminating him. (Pl.'s LR 56.1(b)(3)(B) ¶ 172.)

  That same day, Marine contacted Bill Guth, a business representative for the Union, regarding his termination, and Guth went to Mohr Co. to speak with Steve Mohr. (Def. Mohr's LR 56.1(a)(3) ¶¶ 112-14.) Later in the day, Guth called Marine and told him he had spoke with Steve Mohr. (Id. ¶ 117.) During their conversation, Guth told Marine,"Steve never said that, no, those things to you. He just said he doesn't have 40 hours of work for you." (Id. ¶ 118.) Marine protested, stating that the reason he had called Guth was because Mohr had fired him. (Id.) Guth replied Marine still had his seniority and that Marine would be going back to work soon at Mohr Co. (Id. ¶ 121.) According to plaintiff, Marine also informed Guth that Steve Mohr had Phil Manno working in maintenance. (Pl.'s LR 56.1(b)(3)(B) ¶ 163.) Guth replied that there was no reason to file a grievance at the time and that Marine could hire a private attorney. (Def. Mohr's LR 56.1(a)(3) ¶ 118.)

  On March 26, 2004, Marine filed a charge of discrimination with the EEOC and the Illinois Department of Human Rights alleging that his supervisor verbally harassed him and treated him disrespectfully because of Marine's actual or perceived disability, asthma. (Compl. Attach.) Marine also alleged that similarly situated employees who did not suffer from asthma and who were not perceived to have a disability, and with less seniority, were not terminated. (Id.) On April 9, 2004, Marine received a right-to-sue letter from the EEOC. (Compl. ¶ 7.) Apparently, Marine was mistaken about his termination because on April 5, 6, 7, 8 and 9 of 2004, warning notices were sent to Marine's attorney and Bill Guth for failure to call into work for starting time. (Pl.'s LR 56.1(b)(3)(B) ¶ 184.) All of the warning notices stated that the third notice within a twelve-month period will result in immediate dismissal. (Id. ¶¶ 186-88.) On April 12, 2004, Guth sent Marine a letter that notified him that Guth had received warning notices from Mohr Co. regarding Marine's failure to appear at work and further stated that if Marine wished to protect his seniority, he must return to work or request a leave of absence. (Def. Mohr's LR 56.1(a)(3) ¶ 128.) The letter also stated that if Marine wished to grieve the notices, to contact Guth, and enclosed with the letter was a blank grievance form. (Id.) After receiving the April 12, 2004 letter, Marine did not complete a grievance form or contact Guth. (Pl.'s LR 56.1(b)(3)(A) ¶ 129.) Marine filed the instant complaint on April 27, 2004.


  Summary judgment is properly granted "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Further, all reasonable factual inferences must be viewed in favor of the non-moving party. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). I. ADA

  First, defendant Mohr Co. argues that plaintiff is barred from basing his ADA disparate treatment claim on events that occurred outside of the 300-day period prior to the filing of his EEOC charge on March 26, 2004. In response, plaintiff apparently concedes as much, but he argues that he may rely on such events as evidence to prove the timely claim based on his termination. (Pl.'s Consol. Mem. Opp'n Defs.' Mots. Summ.J. ("Pl.'s Mem.") at 10 n. 3.) "[I]t is well settled that evidence of earlier discriminatory conduct by an employer that is time-barred is nevertheless entirely appropriate evidence to help prove a timely claim based on subsequent discriminatory conduct by the employer." Mathewson v. Nat'l Automatic Tool Co., 807 F.2d 87, 91 (7th Cir. 1986). Thus, the Court considers events that fall outside of the 300-day limitations period as evidence to support plaintiff's disparate treatment claim based on timely events.

  However, Marine also sues Mohr Co. under a hostile work environment theory pursuant to the ADA. "Although [the Seventh Circuit] ha[s] not yet decided whether a claim for hostile work environment is cognizable under the ADA[,] . . . [it] assume[s] the existence of such claims where resolution of the issue has not been necessary." Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005). Because the Court in this case finds that resolution of the issue is not necessary, it assumes that a claim for hostile work environment is cognizable under the ADA. Further, because a plaintiff suing under a hostile work environment theory may recover for related acts occurring more than 300 days before an EEOC charge was filed, see Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002), this Court also assumes that the same would hold true for such claims brought pursuant to the ADA. Cf. Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d 1014, 1036 n. 18 (7th Cir. 2003) (applying Morgan to claim brought pursuant to 42 U.S.C. § 1983). Accordingly, the Court, for purposes of Marine's ADA hostile work environment claim, considers all of the events of which Marine complains.*fn2 Even when considering all of the events, however, for reasons discussed below, Marine's hostile work environment claim cannot withstand defendants' summary judgment motions.

  Second, Mohr Co. argues that Marine has failed to establish a genuine issue of material fact as to his ADA disparate treatment claim. The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). A "qualified individual with a disability" is an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).

  In order to prove discrimination under the ADA, the plaintiff must establish that: (1) he is disabled within the meaning of the ADA, (2) his performance met his employer's legitimate expectations, (3) he was discharged, and (4) the circumstances surrounding his termination show it is more likely than not that his disability was the reason for the termination. Patterson v. Chi. Ass'n for Retarded Citizens, 150 F.3d 719, 725 (7th Cir. 1998) (quotations omitted). Once the plaintiff establishes all elements of a prima facie case of discrimination, the burden of production then shifts to the defendant to proffer a legitimate, non-discriminatory reason for the termination. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995); Nawrot v. CPC Int'l, 277 F.3d 896, 905-06 (7th Cir. 2002). Once a reason is proffered, the ...

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