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David A. Auer v. Allied Air Conditioning and Heating Corporation

January 23, 2011

DAVID A. AUER, PLAINTIFF,
v.
ALLIED AIR CONDITIONING AND HEATING CORPORATION DEFENDANT.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Presently before us is a motion for summary judgment brought by Defendant Allied Air Conditioning and Heating Corporation ("Allied"). Plaintiff, David A. Auer, alleges that Allied terminated his employment because of his disability, depression, in violation of the Americans with Disabilities Act ("ADA"). Allied, in turn, asserts that Plaintiff has no evidence to support his discrimination claim. Allied has also filed a motion to strike Plaintiff's first and second affidavit, as well as objections to Plaintiff's statement of facts. We deal first with the evidentiary issues. Then, after discussing the factual background, we turn to the motion for summary judgment. We grant the motion for summary judgment because Plaintiff cannot demonstrate that the person who terminated his employment was aware of his disability.

II. Motions to Strike

Plaintiff's first affidavit focuses on whether another Allied employee, James Potter, replaced Plaintiff by taking over his job responsibilities. (Pl. Ex. 12 (First Aff).) In the affidavit, Plaintiff speculates that Potter took over his job duties because (1) Potter was in a service van, thus he was working as a Service Technician, and (2) Potter was listed on the call calendar for January 2010, therefore he had been switched from an Installer to a Service Technician. (Id. ¶¶ 9--10, 14). These statements are not based on personal knowledge, but are instead presumed from other facts known to Plaintiff. Pursuant to Allied's motion, we will strike these statements from the record. See Fed. R. Civ. P. 56(e).

Plaintiff's second affidavit focuses on what was said between Plaintiff and Kevin Budinger at the time Budinger terminated Plaintiff's employment. The affidavit was submitted five months after Plaintiff's deposition. In both the deposition and the second affidavit, Plaintiff asserts that he asked Mr. Budinger, "Does this have anything to do with my discussion with Mr. Bauer?" According to Plaintiff's deposition, "[Budinger] didn't say anything. He just looked away." (Def. Ex. C (Dep. of Auer) at 60--61.) In his second affidavit, Plaintiff alleges that Budinger answered, "It has nothing to do with that." (Pl. Ex. 13 (Second Aff. ¶¶ 4--5.) "Where a deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken." Russell v. Acme-Evans Co., ADM, 51 F.3d 64, 67--68 (7th Cir. 1995). Plaintiff concedes that the affidavit and deposition differ, but asserts that both versions demonstrate that Budinger failed to deny knowledge of the discussion. While this may be true, Plaintiff may not put words in a defendant's mouth, particularly when Plaintiff wishes to use the alleged statement to prove that Budinger had knowledge of Plaintiff's disability. (See Resp. at 14.) See also Russell, 51 F.3d at 67 (noting that the Seventh Circuit is "highly critical of efforts to patch up a party's deposition with his own subsequent affidavit"); Buckner v. Sam's Club, Inc., 75 F.3d 290, 293 (7th Cir. 1995) (not allowing plaintiff to assert a highly specific description of an item after previously disclaiming knowledge of the item, when doing so would establish the missing causal link between the defendant and her injury). The remainder of Plaintiff's second affidavit draws assumptions based on the contradictory testimony (Pl. Ex. 13 (Second Aff.) ¶¶ 7--9) or consists of analyses and legal conclusions, typically based on Allied's employee's depositions. (Id. ¶¶ 10--12.) Therefore, we grant Allied's motion to strike Plaintiff's second affidavit.

Allied brings a second motion to strike Plaintiff's additional facts and responses to Allied's statement of facts. First, we deny the motion to strike Plaintiff's additional facts. We do not find that Plaintiff substantially abused the local rules by including more than one fact in some paragraphs. Second, we grant in part the motion to strike Plaintiff's responses to Allied's statement of facts. We agree that Plaintiff's responses frequently are argumentative and present new facts. Some of the responses are non-responsive. (See e.g., ¶¶ 3--5.) We strike other responses for failure to cite to the record. L.R. 56.1(a). (See e.g., ¶¶ 56, 64, 65, 68.) Additionally, we strike the responses to paragraphs 45, 47, 48, 52--55 to the extent that they rely on Plaintiff's second affidavit.

The facts relied upon in the remainder of this opinion are those that have been admitted or not properly denied. We indicate disputes over material facts below. Further, to the extent that statements made by Plaintiff are included in this opinion, they are consistent with our ruling on the motions to strike.

III. Background

Allied is an air conditioning and heating installation and service company with facilities in Palatine and Libertyville, Illinois. (Def. 56.1 Stat. ¶ 1.) Brent Bauer is the Vice President and co-owner of Allied. (Id. at ¶ 2.) Kevin Budinger is the shop manager for Allied's Palatine office and is responsible for advertising, marketing, sales, sales management, operations management, overseeing office operation, as well as hiring, promotion, discipline, and termination. (Id. ¶¶ 3, 4.)

Allied employs two types of technicians: Service Technicians and Installation Technicians. (Def. 56.1 Stat. ¶ 5.) The parties agree that there is a difference between a Lead/Senior Service Technician and all other Service Technicians. (Pl. Resp. to Def. 56.1 Stat. ¶ 6.) However the parties dispute whether the non-Lead Service Technicians are further divided into Level 1/Trainee Service Technicians, and Level 2 Service Technicians. (Def. Ex. B (Dep. of Bauer) at 62--63.) Plaintiff asserts that the distinction between a Level 1/Trainee Technician and a Level 2 Technician was fabricated for this litigation. (Pl. Resp. to Def. 56.1 Stat. ¶¶ 6--7.) The single mention of the distinction is in Allied's Personnel Manual, which describes the three different designation when listing the tools each technician is expected to possess. (Def. Ex. B (Dep. of Bauer) at 68--69.) The document is dated "02/28/2010," -Allied claims that this is the date on which the document was printed, not created-but Allied is not sure when the levels were created. (Pl. 56.1 Stat. ¶ 21; Def. Resp. to Pl. 56.1 Stat. ¶¶ 1, 20.) Assuming the titles do exist, the parties agree that Budinger has discretion to give the employees the job designation "Level 1" or "Level 2"-the designation is allegedly based on his evaluation of the applicant's education and work experience. (Pl. 56.1 Stat. ¶ 17; Def. Resp. to Pl. 56.1 Stat. ¶ 17.) The parties agree that a Level 2 Service Technician cannot be replaced by an Installer, an Install Trainee, or Parts Runner. (Def. 56.1 Stat. ¶¶ 59--60.) Plaintiff contests Allied's assertion that a Level 2 Service Technician cannot be replaced by a Level 1/Service Trainee. (Def. 56.1 Stat. ¶ 58; Pl. Resp. to Def. 56.1 Stat. ¶ 58.)

Plaintiff was hired on February 15, 2008 by Budinger. (Def. 56.1 Stat. ¶ 13.) Allied asserts that Plaintiff was hired as and continued to be a Level 2 Service Technician. (Id.¶ 57.) The designation "Level 2" is not in Plaintiff's Personnel File, Application, Service Technician Position Contract, or Service Technician Payroll Procedures, and Plaintiff disputes he was ever labeled a Level 2. (Def. Ex. B (Dep. of Bauer) at 60; Pl. 56.1 Stat. ¶¶ 18, 21.) At the time of Plaintiff's employment, Plaintiff indicated he would like to be included on the night shift calendar to make extra money.*fn1 (Def. 56.1 Stat. ¶¶ 25--26.) Plaintiff's job consisted mostly of performing preventative maintenance on residential furnaces.*fn2 (Def. Ex. C (Dep. of Auer) at 34.) Plaintiff originally earned $20.00 per hour. He received a $1.00 per hour raise in both June and August, bringing his hourly rate to the level he had originally requested at the time of his hire. (Def. 56.1 Stat. ¶ 14--16.) These increases were based on Plaintiff's good work performance, which were noted in voice mails praising his work. (Pl. 56.1 Stat. ¶ 35.)

In early March, Bauer told Budinger he wanted to meet with Plaintiff to discuss a customer complaint. (Pl. 56.1 Stat. ¶ 24.) On March 6, Budinger told Plaintiff to go to Bauer's office, and Plaintiff and Bauer met to discuss the complaint. (Pl. 56.1 Stat. ¶ 29; Def. 56.1 Stat. ¶ 17.) After discussing the complaint, Plaintiff disclosed to Bauer that he was seeing a doctor; he also explained that he was taking prescription medication that made him drowsy and made it difficult for him to think. (Id. ¶¶ 18--19.) Plaintiff asserts, and Allied disputes, that Bauer demanded more disclosure, that Plaintiff responded with the names of the medication and that he was being treated for depression, and that Bauer responded by saying "whoa . . . those are powerful drugs." (Def. Ex. C (Dep. of Auer) at 129.)

The parties agree that Plaintiff requested removal from the night call schedule because his medication made him drowsy. (Def. 56.1 Stat. ¶ 28.) There is a dispute as to whether Bauer told Plaintiff the request was unreasonable because night call is the nature of the business, but Bauer did refer to night call as the nature of the business during his deposition. (Pl. 56.1 Stat. ¶ 4; Def. Reply to Pl. 56.1 Stat. ¶ 4.) According to Allied, Bauer referred Plaintiff's request to Allied's night call scheduler, Heather Imboden, and asked Imboden to remove Plaintiff from night call for the rest of the month. (Def. 56.1 Stat. ¶¶ 29, 30.) Plaintiff was not aware that Bauer attempted to remove him from night call, instead he states that the meeting ended abruptly after he asked to be taken off night call. (Def. Ex. C (Dep. of Auer) at 129--30.) Plaintiff also believes that he was never removed from night call and was in fact on call on the date of his termination. (Def. Ex. C (Dep. of Auer) at 58.) Plaintiff never asked Budinger, or any other Allied employee, that he be removed from night call, and Budinger was never aware that Plaintiff was removed from the night call calendar. (Def. 56.1 Stat. ¶¶ 33, 35.)

Allied maintains a line of credit with Harris Bank to provide necessary funds during periods of financial losses or downturns. (Def. 56.1 Stat. ¶ 37.) The maximum balance Allied can carry on its line of credit is $250,000, and Allied pays off the line of credit during profitable seasons. (Id. ¶ 38; Def. Ex. B (Dep. of Bauer) at 76.) The spring season is a normal financial down period for Allied. (Def. Ex. B (Dep. of Bauer) at 76.) In March and April 2009, Allied had taken out $100,000 on the line of credit. (Def. 56.1 Stat. ¶ 36.) The business was also on a short work week in March of 28--32 hours per week. (Id. ¶ 41.) These conditions were not uncommon, as Allied's losses were twice as much during the same period in 2008-when Plaintiff was hired. (Pl. 56.1 Stat. ¶ 15.) Allied ...


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