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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 ...

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