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Musial v. Midwest Generation EME

October 26, 2006


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Pro se plaintiff Stanley Musial sued his former employer, Midwest Generation EME, LLC and the labor union that represents workers at Midwest, IBEW Local 15, alleging that he was laid off from his job at Midwest in violation of the Age Discrimination in Employment Act. Both Midwest and Local 15 moved to dismiss Musial's complaint for failure to state a claim, contending that Musial had failed to file a timely administrative charge of discrimination, a prerequisite to suit under the ADEA. The Court converted the defendants' motions to motions for summary judgment and advised Musial what he needed to do to respond to the motions. For the reasons stated below, the Court grants summary judgment in favor of the defendants.


Musial became an employee of Midwest in December 1999, when Midwest acquired the Commonwealth Edison electricity generating plant where he worked. By November 2004, Musial, then age 46, held the position of material and supply coordinator at Midwest's Fisk Generating Station. Musial Aff., p. 5.

In November 2004, Midwest implemented a reduction in force that resulted in the elimination of three material and supply coordinator positions. Siegman Aff. ¶ 5. Midwest used an established seniority list, agreed to by Local 15, to determine which material and supply coordinators would be laid off. Id. ¶ 6. Musial was last on the list and was laid off on November 12, 2004. Id. ¶ 9.

In an affidavit submitted in response to defendants' motions, Musial has identified a number of instances, all prior to his termination, that he believes show unfair treatment by Midwest and Local 15. He says that employees who had less time in service than he did were placed ahead of him on the seniority list. Musial Aff., pp. 2, 4-6. In December 1995 and again in December 1999, Musial says, he was passed over for promotions. Id., pp. 2, 4. Although Musial says he was not initially aware of the seniority list or that he had been passed over in December 1995, he says he learned of these occurrences in August 1999. Id., pp. 3-4. Shortly after learning this information, Musial says, he called his union representative to complain about the seniority list. Id., p. 4.

Musial also states that Local 15 eliminated "department seniority," which, he contends, led to his being laid off. It is clear from the charge of discrimination that Musial filed against Local 15 that he was aware of this policy in 2001. See Charge of Discrimination dated Feb. 17, 2006 (attached to plaintiff's complaint).

On November 19, 2004, one week after he was laid off, Musial sent a letter to Local 15 requesting copies of collective bargaining agreements from 1995-1997 and the seniority list from May 1, 1994. Musial Aff., p. 6. Musial received a copy of the collective bargaining agreement as revised on March 4, 1997 but did not receive a copy of the seniority list. Id. Musial waited until January 2006 to again contact Local 15 to request a copy of the collective bargaining agreement in existence in 1995-96. Id. In April 2006, Musial received documents from Commonwealth Edison that included a copy of the 1995-96 version of the collective bargaining agreement. Id.

On February 17, 2006, over 460 days following his layoff, Musial filed charges with the EEOC against Midwest and IBEW Local 15. In both charges, Musial alleged a single date of discrimination -- November 12, 2004, the date he was laid off by Midwest. On February 28, 2006, the EEOC dismissed the charges, advising Musial they had not been timely filed. Musial filed suit in this Court in May 2006.


Summary judgment is proper where "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of fact is "material" if it is outcome-determinative. Smith v. Potter, 445 F.3d 1000 (7th Cir. 2006). In considering a motion for summary judgment, a court must construe the facts in the light most favorable to the non-moving party and draw reasonable inferences in that party's favor. See, e.g., Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 571 (7th Cir. 1998).

Timely filing of an administrative charge of age discrimination is a prerequisite to maintaining an action under the ADEA. 29 U.S.C. § 626(d). In a so-called "deferral state" like Illinois, the plaintiff must file an administrative charge within 300 days after the alleged unlawful discriminatory practice occurred. Id.; see also, e.g., Hamilton v. Komatsu Dresser Indus., 964 F.2d 600, 603 (7th Cir. 1992) (quoting 29 U.S.C. § 626(d)(2)). A plaintiff's failure to file a timely administrative charge bars a later suit under the ADEA. Casteel v. Exec. Bd. of Local 703 of Int'l Brotherhood of Teamsters, 272 F.3d 463, 466 (7th Cir. 2001).

The 300 day limitation period begins to run at "the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (concluding that the statutory period commenced to run when adverse tenure decision was made and plaintiff was notified, not when he was actually let go by the college a year later) (emphasis in original; internal quotations and citations omitted); see also Hamilton, 964 F.2d at 606 (statutory period began to run when the plaintiffs were denied training, not when the effects of that denial -- not being promoted and eventual layoff -- occurred).

Construing the facts in the light most favorable to Musial, the latest the 300 day period could have started to run was the date he was laid off. A plaintiff's action accrues when he discovers that he has been injured, not when he determines that the injury was unlawful. Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995) (noting that plaintiff's injury was his termination; action accrued when he was informed that he was to be terminated). Musial learned on November ...

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