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November 29, 2010


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


This matter came before the Court on September 27, 2010, for hearing on the following motions: Defendants' motion for summary judgment on Counts I and III; Defendants' motion for summary judgment on Count IV; Defendants' motion for summary judgment on Count II; and, Defendant Global Brass and Copper, Inc.'s motion for summary judgment. All Defendants' motions were filed under Federal Rule of Civil Procedure 56(b).*fn1 For the following reasons, and for those set forth on the record, all of Defendants' motions for summary judgment are GRANTED. Though Defendants moved for summary judgment on Plaintiff's counts separately, this Order renders summary judgment on Plaintiff's action as a whole.


Plaintiff, Mr. Feldman, began working for Defendants in 1974. In 2002, he was diagnosed with fibromyalgia, and continued to work a swing shift--rotating day, afternoon, and midnight shifts. In January of 2005, Mr. Feldman bid on and received a straight day tractor operator position. The next month Mr. Feldman submitted a no-overtime restriction in an effort to ease symptoms of his fibromyalgia. Defendants granted this restriction. In October of 2005, Mr. Feldman sustained a back injury and filed a worker's compensation claim in November of 2005. He consequently underwent disc replacement spinal surgery on April 21, 2006. The worker's compensation claim was eventually settled. Mr. Feldman returned from medical leave related to that injury and surgery on September 8, 2006 with a medical no-overtime restriction. Defendants did not allow Mr. Feldman to return to work with that restriction. Mr. Feldman grieved this decision pursuant to the grievance system of the collective bargaining agreement in force. Mr. Feldman's grievance was successful, and he returned to work on September 21, 2006 as a straight day shift tractor operator.

On May 7, 2007, Defendant Olin Corp. initiated a job "curtailment," a result of which was Mr. Feldman's reassignment to a rotating shift. Mr. Feldman worked in this position until May 21, 2007 when he brought in a note from his physician stating that Mr. Feldman could work only straight day--not rotating--shifts. Defendants informed Mr. Feldman there was no work available meeting Mr. Feldman's medical restriction needs, so Mr. Feldman was laid off. While laid off, Mr. Feldman continued to bid on positions at Olin Corp. During this time, Mr. Feldman also filed a charge of discrimination against Defendants with the Illinois Department of Human Rights alleging retaliation, failure to accommodate, and disability and age discrimination. In December of 2007, Mr. Feldman bid and was selected for a straight day tractor driver position. He has worked continuously for Defendants since that time.

On March 4, 2009, Mr. Feldman filed this action after receipt of his right to sue letter from the EEOC in December of 2008. In his complaint, Mr. Feldman claimed that Defendants discriminated against him based on his age and disability, and retaliated against him after he filed his worker's compensation claim. Mr. Feldman alleged in Count I, disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq.; in Court II, age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq.; in Count III, retaliation in response to his ADA and ADEA-protected complaints; and in Count IV, retaliatory discharge for exercise of his rights under the Illinois Worker's Compensation Act, 820 ILCS 305/1 et seq.


The standard applied to summary judgment motions filed under Rule 56 is well-settled and has been succinctly stated as follows.

Summary judgment is proper when 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. In determining whether a genuine issue of material fact exists, [the court] must view the record in a light most favorable to the nonmoving party. Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-movant may not rest on the pleadings but must respond, with affidavits or otherwise, setting forth specific facts showing that there is a genuine issue for trial. The evidence must create more than some metaphysical doubt as to the material facts. A mere scintilla of evidence in support of the non-movant's position is insufficient; a party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion.

Albiero v. City of Kankakee, 246 F.3d 927, 931-32 (7th Cir. 2001) (internal citations and quotations omitted). "We often call summary judgment, the 'put up or shut up' moment in litigation, by which we mean that the nonmoving party is required to marshal and present the court with the evidence she contends will prove her case. And by evidence, we mean evidence on which a reasonable jury could rely." Goodman v. National Security Agency, Inc., No. 09-2043, 2010 WL 3447727 (7th Cir. Sept. 3, 2010). The Court is mindful of this standard in its recitation of the facts above. Additional facts will be discussed in relation to the legal standards applicable to discrimination and retaliation claims.

Improperly Named Defendant

In its answer to Plaintiffs' complaint, Defendant Global Brass and Copper denied that it at any time employed Mr. Feldman and asserted that it was not a proper party in this action (Doc.s 13, 48). Further, Defendant states that in its answers to discovery requests it repeatedly, under oath, protested that Mr. Feldman was never a Global Brass and Copper employee, and thus Global Brass and Copper could not be a proper party (Doc. 90). Still a party in this litigation fourteen months after its answer claiming to be an improper party, Global Brass and Copper filed for summary judgment and costs associated with that motion (Doc. 67). With this motion, Defendant submitted an affidavit of Global Brass and Copper's Director of Compensation and Benefits Mark Tanis further stating that Mr. Feldman was never employed by Global Brass and Copper and that Defendant was not a proper party. In his response to Defendants' motion for summary judgment, Mr. Feldman does not object to Global Brass and Copper's request for dismissal, but does challenge Defendant's request for costs, claiming that the Mark Tanis affidavit was the first statement from Defendant averring that Mr. Feldman was never a Global Brass and Copper employee (Doc. 86).

It is clear from the record that Defendant made multiple statements of its status as an improper party to Mr. Feldman's counsel. Moreover, Global Brass and Copper, repeatedly, claimed that it had fewer employees than necessary to bring it under the province of either the ADA or the ADEA. The response to the motion for summary judgment fails to mention any of these Global Brass and Copper statements. At the September 27, 2010 hearing on the motions to dismiss, Plaintiff's argument that he proceeded in good faith referenced a print-out from Global Brass and Copper's website wherein was stated that Global Brass and Copper employs over 2,000 employees. While this might have raised a valid question on Global Brass and Copper's liability under the ADA and ADEA, Mr. Feldman's reliance on this proposed submission reveals a confounding disconnect to the time line of this case. Plaintiff's counsel readily admitted that the Global Brass and Copper website printout was accessed on September 25, 2010, in preparation for the motion hearing. Global Brass and Copper's status mere days before a motion for summary judgment hearing has no bearing on whether or not Plaintiff made any good faith effort to investigate the propriety of naming and keeping Global Brass and Copper in this suit. The Court agrees with the parties that Global Brass and Copper should be dismissed, and agrees with Defendants that Global Brass and Copper could have ...

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