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Nolan v. Midwest Generation


July 29, 2008


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


David Nolan ("Nolan") and Keith Suski ("Suski") were demoted by their employer, Midwest Generation, LLC ("Midwest"), after they had taken extensive leaves of absence because of physical injuries. Nolan and Suski have sued Midwest for asserted discrimination in violation of the Americans with Disabilities Act ("ADA"), as well as advancing state-law claims for breach of contract and intentional infliction of emotional distress.

Midwest now moves for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Midwest's motion is well-taken, and this action is dismissed in its entirety.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (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 non-movant "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 warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is a summary of the facts viewed in the light most favorable to nonmovants Nolan and Suski--but within the limitations created by the extent of their compliance (or noncompliance) with the strictures of LR 56.*fn1


Midwest produces electrical power for wholesale on the open market (M. St. ¶5). In December 1999 Midwest acquired several generating stations from Commonwealth Edison Co. ("ComEd")(id.). Nolan and Suski had been employed by ComEd since 1981 (N-S Add. St. ¶¶1, 23), but they became Midwest employees on December 15, 1999 (M. St. ¶¶13, 40). Both Nolan and Suski are members of International Brotherhood of Electrical Workers Local 15 ("Union"), and the terms and conditions of their employment with Midwest are governed by a collective bargaining agreement ("CBA") between Midwest and Union (id. ¶62).

Because of a reduction in force in the spring of 2002, both Nolan and Suski elected to transfer to Midwest's Waukegan Generating Station ("Waukegan Station")(M. St. ¶¶13, 40). Both had worked as maintenance mechanics since the beginning of their employment at Midwest, and they continued in that capacity at the Waukegan Station (id.).

Maintenance mechanics primarily maintain all of the mechanical equipment in the plant (M. St. ¶7).*fn2 According to the position description generated by Midwest, maintenance mechanics are occasionally required to bend, stoop, reach, push, pull, walk, sit, stand and climb (M. St. App. Tab C, Dep. Ex. 22).

While employed by ComEd Nolan suffered a meniscus tear in a work-related injury in 1999 (N-S Add. St. ¶2). Since then he has undergone four surgeries on his knees (id. ¶3). Suski had both hips replaced in 1999-2000 and had surgery on his back in May 2002 and February 2005 (id. ¶¶24-25).

Between December 15, 1999 and December 10, 2004 Nolan missed 343 days due to his knee injury and other causes--38% of all available work days for 2002-04 (M. St. ¶¶50-51). During that same period Suski missed 616 days due to his back and other causes--58% of all available work days in 2000 and 2002-04 combined (id. ¶¶52-53).*fn3

For part of the time that Nolan was at work he was limited by multiple medical restrictions, including "no standing, walking, carrying, or climbing" (M. St. ¶30). Nolan worked in the tool crib signing out tools for the night shift (a sedentary job) for four months in 2003 (id. ¶31).

On December 10, 2004 Midwest demoted both Nolan and Suski from the position of maintenance mechanic to that of laborer (N-S Add. St. ¶¶4, 26). Both were on leave at that time.*fn4 Under the terms of Midwest's disability benefits plan, their pay was not reduced until they returned to work (M. St. ¶59).

Laborers are tasked with performing cleaning and basic building and grounds maintenance work at Waukegan Station (M. St. ¶9). They perform some heavy physical labor, including operating jack hammers, excavating, cleaning roofs and shoveling coal (id.).*fn5 Midwest deems laborers less critical than maintenance mechanics (id. ¶56) and accordingly pays them less per hour (N-S Add. St. ¶20).

Nolan and Suski immediately grieved their demotions through the Union (M. St. ¶66). Separate arbitrations found that Midwest was within its rights under the CBA to demote Nolan and Suski and resolved the grievances in Midwest's favor (id. ¶¶68-69). Both Nolan and Suski attempted to secure (1) promotions back to their previous maintenance mechanic positions and (2) transfers to other stations, but all those requests were denied (N-S Add. St. ¶20-21; N-S St. ¶72).

ADA Claims

It is unlawful for an entity covered by the ADA to (42 U.S.C. §12112(a)*fn6 ):

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.

To that end Nolan and Suski "must establish that (1) [they] suffer[ ] from a disability as defined in the ADA, (2) [are] qualified to perform the essential functions of the job in question, with or without reasonable accommodation, and (3) [have] suffered an adverse employment action as a result of [their] disabilit[ies]" (Dargis v. Sheahan, 526 F.3d 981, 986 (7th Cir. 2008), adapted to this case).

In the employment context the ADA prohibits discrimination only against a "qualified individual with a disability" (Section 12112(a)). To meet the burden of proving that he or she is a qualified individual (Winfrey v. City of Chicago, 259 F.3d 610, 614 (7th Cir. 2001)), a plaintiff "must (1) satisfy the requisite skill, experience, education and other job-related requirements of the position [he] holds or desires and (2) establish that he can perform the essential functions of such position with or without accommodation" (Dargis, 526 F.3d at 986 (internal quotation marks omitted)). Nolan's and Suski's claims fail the second of those requirements: They were unable to perform the essential functions of the maintenance mechanic position.*fn7

Midwest's written job description for the maintenance mechanic position includes numerous physical demands and a variety of tasks as essential functions (M. St. App. Tab C, Dep. Ex. 22).*fn8 At the time of the demotions Nolan was restricted to seated work with occasional standing (N-S St. ¶37(a)), and Suski could not perform any work functions at all (M. St. ¶47). More importantly, neither of the two came to work: Suski was absent for six months and Nolan for five before their demotions (M. St. ¶¶36-38, 48).*fn9 That lack of capacity to perform the essential functions of the position is fatal to both claims, because "[i]nability to work for a multi-month period removes a person from the class protected by the ADA" (Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003)).*fn10

Nolan urges that he could have performed the functions of his job if Midwest had accommodated his disability by allowing him to work full-time in the tool crib or cleaning sootblowers (N-S Mem. 5). But, as this Court has held in its earlier order dismissing Nolan's and Suski's reasonable accommodation claim, no charge of a lack of reasonable accommodation was lodged with the EEOC (Dkt. 31). And maintenance mechanics are required to do much more than sign out tools in the tool crib (an assignment that is usually given to the senior maintenance mechanic on duty). To alter the job duties materially downward would overstep the bounds of reasonable accommodation (Byrne, 328 F.3d at 381):

The sort of accommodation contemplated by the Act is one that will allow the person to "perform the essential functions of the employment position." Not working is not a means to perform the job's essential functions. An inability to do the job's essential tasks means that one is not "qualified"; it does not mean that the employer must excuse the inability. Nolan's inability to perform most of the duties of a maintenance mechanic means that he is not a qualified individual (Dargis, 526 F.3d at 987). Midwest accommodated his injury and absences for five years--even stationing him occasionally in the tool crib--before concluding that he could not fulfill the duties of the maintenance mechanic position. Midwest was under no obligation to create a new, modified maintenance mechanic position for Nolan, and the fact that it had previously tried to work with him "will not count as evidence that the position it created is in fact the full [maintenance mechanic] position" (Winfrey, 259 F.3d at 616). Indeed, any creation of a permanent tool crib maintenance mechanic position would have forced the removal of senior maintenance mechanics from their tool crib duties, a change that would likely have engendered resentment among its employees and would be much like "reverse" discrimination--a course of action that is surely not commanded by the ADA (Matthews, 128 F.3d at 1196).

Suski urges that he was not actually demoted until he returned to work on July 25, 2005 because his pay was not decreased until that day (N-S Mem. 7). And, according to Suski, he was a qualified individual on that day because he was not limited by any restrictions and was capable of performing all the essential functions of a maintenance mechanic (N-S Mem. 6-7).

That argument misses the mark entirely. December 10, 2004 rather than July 25, 2005 is the pertinent date here, because that is when Suski and Nolan were demoted: "whether an individual is a 'qualified individual with a disability' must be made as of the time of the employment decision" (Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996)). Although the pay decrease did not go into effect until Suski returned to work in July 2005, the employment decision was implemented on December 10, 2004. And as of that date Suski was unable to perform any of the functions of a maintenance mechanic, so he was not a qualified individual.*fn11

In sum, Nolan's and Suski's ADA claims must be and are dismissed. This opinion turns to their other claims.

Section 301 Preemption

Midwest contends that Nolan's and Suski's state-law claims implicate the CBA between Midwest and the Union (M. Mem. 9-10, 12) and are therefore preempted by Labor Management Relations Act §301 ("Section 301,"*fn12 29 U.S.C. §185). Section 301 preempts state-law remedies whenever resolution of a plaintiff's claim is substantially dependent on analysis of the terms of a CBA (Tifft v. Commonwealth Edison Co., 366 F.3d 513, 516 (7th Cir. 2004)). Such preemption is necessary, according to Livadas v. Bradshaw, 512 U.S. 107, 121-23 (1994), to retain consistency in the interpretation of terms common to CBAs and to prevent parties from relabeling, as state-law claims, actions that in actuality arise under a CBA.

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988) teaches that Section 301 requires more than a tangential linkage between a CBA and a state-law claim to trigger preemption:

[I]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor-law principles--necessarily uniform throughout the Nation--must be employed to resolve the dispute.

Mere consultation of a CBA is not enough to cause preemption (Tifft, 366 F.3d at 516). As long as a state-law claim can be resolved without construing the CBA itself, Section 301 does not preempt it (Lingle, 486 U.S. at 409-10).

Nolan's and Suski's breach of contract claims do not stem from the CBA at all. They rely instead on the "Q&A" section of a separate and company-wide attendance policy.*fn13 Hence Section 301 works no preemption against those claims.

Nolan's and Suski's intentional-infliction-of-emotional distress allegations present another story. To prevail on such a claim under Illinois law, a plaintiff must show that defendant's conduct was "outrageous" to the point of being "so extreme as to go beyond all possible bounds of decency, and to be regarded as intolerable in a civilized community" (Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 21, 607 N.E.2d 201, 211 (1992)). As Douglas v. Am. Info. Techs. Corp., 877 F.2d 565, 571 (7th Cir. 1989) explains:

However, analysis of an employee's intentional infliction of emotional distress claim may well require a court to refer to and interpret the contract provisions governing the terms and conditions of her employment. Specifically, a court's determination of whether the defendant's allegedly wrongful conduct was "extreme and outrageous" may turn on the meaning of various provisions of the collective bargaining agreement.

So to the extent the intentional infliction of emotional distress claims are grounded in Midwest's demotion of Nolan and Suski, they are preempted by Section 301 because resolution of those claims would require construction of the language in the CBA guaranteeing Midwest the right to demote its employees.*fn14

Similarly, a factfinder could not determine whether Midwest's denial of Nolan's and Suski's promotion and transfer requests was beyond all possible bounds of decency without examining what responsibility Midwest had under the CBA to grant or entertain such requests.

Nolan and Suski have already grieved their complaints about their demotions through the process set forth in the CBA, and separate arbitrators found that Midwest did not breach the CBA in demoting them (M. St. ¶¶68-69). Those arbitration determinations are final and binding on Nolan and Suski, barring any present claim that their demotions were in violation of the CBA (M. St. ¶65). As for any other activity by Midwest that Nolan and Suski find outrageous but that requires interpretation of the CBA, again they must conform to the grievance procedure outlined in the CBA (Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965)). That procedure does not begin in federal court (M. St. ¶¶64-65), and those charges too must be dismissed.

Intentional Infliction of Emotional Distress In summary, of the numerous acts that Nolan and Suski say caused them emotional distress, only those that do not require construction of the CBA survive preemption (Lingle, 486 U.S. at 409-10). They comprise only Nolan's charges that Midwest asked him to clean pigeon excrement out of equipment, required him to operate a service elevator and offered to promote him back to his maintenance mechanic position if he dropped this lawsuit (N-S Mem. 10-11). Even though those charges now lack federal underpinning, this Court need not relinquish jurisdiction over them because the outcome is already apparent (Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904, 907 (7th Cir. 2007)).

Here is the standard for such claims (Schiller v. Mitchell, 357 Ill.App.3d 435, 446, 828 N.E.2d 323, 333 (2d Dist. 2005)(citation omitted)):

To establish a claim for intentional infliction of emotional distress, a plaintiff must show (1) that the conduct was truly extreme and outrageous, (2) that the actor intended that his conduct inflict severe distress or knew that there was a high probability that his conduct would inflict such distress, and (3) that the conduct in fact caused severe emotional distress. Liability arises only where the conduct complained of was atrocious, and utterly intolerable in a civilized community.

And "[w]hether conduct is extreme and outrageous is evaluated on an objective standard based on all of the facts and circumstances" (Graham v. Commonwealth Edison Co., 318 Ill.App.3d 736, 745, 742 N.E.2d 858, 866 (1st Dist. 2000)).

Based on the laborer position description, Midwest's requests that Nolan clean pigeon excrement out of equipment and operate a service elevator for other employees (work that he rejected) do not rise to the level of outrageousness necessary to sustain a claim for intentional infliction of emotional distress.

Laborers "perform all types of manual labor" (including cleaning), as set forth in the position description (M. St. App. Tab C, Dep. Ex. 23). Because those tasks must perforce be performed by some employee, and because they fit within the "laborer" job description, it was not outrageous for Midwest to ask or expect Nolan to perform these duties. Lastly, Midwest's offers to promote Nolan if he dropped this lawsuit (what Nolan calls "coercion" and what Midwest calls "settlement offers"*fn15 are likewise not objectively outrageous (see, e.g., Schiller, 357 Ill.App.3d at 448-52, 828 N.E.2d at 335-38 and cases cited there).

Thus none of Nolan's allegations of wrongdoing rises (or perhaps falls) to the level of shocking conduct required to sustain a claim for intentional infliction of emotional distress under Illinois' law. That claim cannot survive summary judgment either.

Breach of Contract

That leaves only the Nolan-Suski breach of contract claims under Illinois law. As with the other state-law claim just dispatched, that subject may be resolved here and now.

Nolan and Suski have hitched their breach of contract wagon to Midwest's company-wide attendance policy that details disciplinary procedures for "controllable absences"*fn16 that are "in excess of two days per quarter or eight days per year" (M. St. ¶60).*fn17 That policy contains a "Q&A" section that states in part (M. St. ¶61):

Employees who miss work due to a serious health condition or illness involving inpatient care or continuing treatment by a health care provider will not have that time count against the two days per quarter/eight days per year for disciplinary purposes.

To be sure, all reasonable inferences must now be drawn in Nolan's and Suski's favor. But no admissible evidence reasonably supports the conclusion that their demotions were disciplinary in nature.*fn18 Nolan did receive a reprimand regarding his attendance during the first quarter of 2004,*fn19 informing him that he missed 40 hours of work in violation of Midwest's attendance policy (N-S Resp. St. ¶70(c)).*fn20 But Nolan's only absences during that first quarter came when he missed five days--40 hours--because he had the flu (M. St. ¶35). According to the attendance policy, short-term illnesses (such as the flu) are "controllable" and thus fall within the scope of the attendance policy's disciplinary measures (M. St. ¶60).

When Midwest demoted Nolan and Suski, it informed them in writing that their demotions were caused by their inability to fulfill their job functions because of excessive absences, with no mention of any part of the attendance policy (M. St. ¶¶57-58). Midwest then took no disciplinary action against them when they continued to fail to come to work for months after those demotions. Nor would Midwest have had any reason to do so: Nolan's and Suski's extended absences were the byproduct of uncontrollable long-term injuries. No admissible evidence indicates that the demotions were disciplinary in nature, and no such inference would be reasonable based on the record.

Accordingly the breach of contract claims are also dismissed.


This Court is not a superpersonnel board that can be invoked by frustrated employees to second-guess the wisdom or efficiency of an employer's legitimate management decisions. Nolan and Suski were not demoted in an attempt to discipline or discriminate against them, but rather because their unfortunate injuries rendered them unable to meet Midwest's legitimate performance and attendance expectations for their positions.

Midwest has shown that no genuine issues of material fact exist and that all of Nolan's and Suski's claims lack merit. Hence Midwest is entitled to a judgment as a matter of law. This action is dismissed in its entirety.

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