Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Verizon North

July 23, 2008


The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge


This matter is before the Court on Defendant Verizon North, Inc.'s Motion for Summary Judgment (d/e 20). Danial Smith (Smith) was an employee of Defendant Verizon North, Inc. (Verizon) from 1998 until April 17, 2004. After his employment was terminated, Smith filed suit against Verizon in Illinois state court. Verizon removed the matter to this Court in March 2007. Smith subsequently filed a four-count Amended Complaint (d/e 8). Danial Smith died while this suit was pending, and the Court substituted the Executor of his estate, Norma Jean Smith, as Plaintiff. See Text Order, dated January 16, 2008. Verizon moves for summary judgment on each of Plaintiff's claims. Defendant's Motion for Summary Judgment (d/e 20). For the reasons set forth below, Verizon's Motion for Summary Judgment is allowed.


Smith began full-time employment with Verizon on approximately March 9, 1998.*fn1 Smith was a member of the International Brotherhood of Electrical Workers Local 51 (the Union) which, at all relevant times, had a Collective Bargaining Agreement (CBA) with Verizon. The applicable CBAs are before the Court. See Defendant's Memorandum of Law in Support of Motion for Summary Judgment (d/e 21) (Defendant's Memorandum), Ex. 4, Declaration of Mike Kruger (Kruger Dec.), Exs. A & B. Plaintiff concedes that, "[a]t all relevant times, the applicable CBA explained a represented employee's right to reinstatement after a medical leave of absence." Defendant's Memorandum, p. 3, Undisputed Material Fact No. 5. Plaintiff also concedes that Verizon's Leave of Absence Policy is as set forth in an Exhibit entitled "Personal Leave Toolkit" and that the policies set out in the Toolkit apply to employees covered by the CBAs who are granted a personal leave of absence. Id., Undisputed Material Fact No. 6; see also Kruger Dec., Ex. C, Personal Leave Toolkit.

Smith was employed by Verizon as a Cable Technician. The parties agree that the physical demands of this position include climbing poles and ladders, frequently lifting fifty pounds and occasionally lifting up to one hundred pounds on the ground and aloft, pushing, reaching, bending, hand digging, stooping, prolonged standing, manual dexterity, a good sense of balance, and good color vision. It is undisputed that Cable Technicians must also have a Commercial Driver's License.

From January 3, 2003, to September 6, 2003, Smith took a medical leave of absence, during which he received short-term disability payments. In February 2003, Smith was diagnosed with a brain tumor. At the time Smith's medical leave expired in September 2003, his doctor, Dr. Brian Russell, wrote a letter indicating that Smith could return to work without restrictions. Verizon, however, required Smith to undergo an independent medical examination prior to allowing him to return to work. Thus, on September 23, 2003, Smith was placed on personal leave of absence, pending the independent medical exam.

On September 24, 2003, Smith filed a Grievance. Notice of Errata Regarding Ex. 6 to Memorandum of Law in Support of Motion for Summary Judgment (d/e 22), p. 14, Grievance Report (Grievance). In the Grievance, Smith stated that he had been told by Verizon that he could not return to work because he was a danger to his co-workers. Smith asserted that "[t]his decision was based on Metlifes [sic] negativity about [him] returning to work" and that all of his doctors had released him to work "100% with no restriction." Id. Smith concluded by stating that he would like to return to his job.

The Union represented Smith in the grievance process. The procedures applicable at the time provided that, after a written Grievance is filed with the employer, the employer had ten days to respond to the Grievance. If the response did not resolve the matter, officials from the Union and the employer would meet to discuss the grievance. Defendant's Memorandum, p. 5, Undisputed Material Fact No. 19. Plaintiff concedes that the Union was committed to helping Smith and tried to resolve his grievance, addressing it in the same manner as other similar grievances. Verizon responded to the grievance within the allotted ten days, but in the Union's opinion, the response did not resolve the grievance. Thus, the Union scheduled a meeting with Verizon representatives concerning Smith's grievance.

Union representative Jim Bates attended the meeting on Smith's behalf. Bates understood that Verizon would base its determination of whether Smith could return to work on the results of the independent medical examination. Defendant's Memorandum, p. 6, Undisputed Material Fact No. 20. Bates reminded Verizon of its contractual obligation to place Smith in another position consistent with any medical restrictions that he might have if such a position were available. Id.

The independent medical examination was conducted in October 2003, by Dr. Warach. Warach concluded that Smith was subject to the following work restrictions: no climbing of poles or ladders, no safety sensitive work including driving, no DOT driving, and no operating any equipment or machinery. These restrictions were noted to be permanent in duration. Defendant's Memorandum, Ex. 7, Declaration of Donna Spencer (Spencer Dec.), Ex. A.

According to Verizon, no positions meeting these restrictions were available, and Smith remained on personal leave of absence. Bates testified in deposition that, at some point, he was informed that the independent medical examination had revealed that Smith was unable to return to his former position. Defendant's Memorandum, Ex. 3, Deposition of James R. Bates, p. 28. According to Bates, Verizon informed him that it had looked for other bargaining unit openings, but found none. Id. Bates concluded that there was nothing left for the Union to do at this point. Bates called Smith and informed him that the grievance was being "dropped." Id., p. 30. According to Bates, Smith did not ask him to reconsider the decision to drop the grievance, nor did he complain to Bates about the way in which it was handled.

Plaintiff concedes that, during this time, Verizon searched for open positions compatible with Smith's work restrictions and that Verizon was very interested in maintaining Smith's status as a Verizon employee. Defendant's Memorandum, p. 4, Undisputed Material Fact No. 13. Plaintiff further concedes that, while Smith was on personal leave of absence, he was offered an office position in the Bloomington/Normal, Illinois area that met the medical restrictions. Smith declined this position because he did not want to relocate one hundred miles from his home in Nokomis, Illinois. Verizon continued to work with Smith to find another position, and Smith remained on personal leave of absence.

Smith's personal leave of absence expired on March 21, 2004. Smith did not return to work, and his employment was terminated on April 17, 2004. Plaintiff concedes that Smith's employment was terminated "pursuant to [Verizon's] personal leave of absence policy, which provided that, at the end of a personal leave of absence, 'if no modified position or schedule is available, employment will be terminated effective with the last day of the approved leave.'" Defendant's Memorandum, p. 5, Undisputed Material Fact No. 16 (quoting Kruger Dec., Ex. C, Personal Leave Toolkit, p. 6). It is also undisputed that Smith did not file a grievance related to the termination of his employment in April 2004. Defendant's Memorandum, p. 7, Undisputed Material Fact No. 24.

Smith filed the instant lawsuit in Illinois state court. After the matter was removed, he filed the pending four-count Amended Complaint, which alleges retaliatory discharge (Count I), breach of employment agreement between Plaintiff and Defendant (Count II), breach of employment agreement with Plaintiff as a third-party beneficiary (Count III), and wrongful discharge (Count IV). Verizon seeks summary judgment on all of Plaintiff's claims. Verizon argues that all of the claims must be treated as claims under § 301 of the Labor Management Relations Act (LMRA), because they necessarily involve the interpretation of the CBAs. See 28 U.S.C. § 185. Section 301 gives federal courts jurisdiction over suits to enforce the terms of collective bargaining agreements and allows an employee to file suit based on the alleged violation of a collective bargaining agreement between the employee's union and the employer. Verizon contends, however, that Plaintiff fails to identify ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.