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Paul Pavlovic v. the Board of Education For the City of Chicago

September 21, 2012

PAUL PAVLOVIC, PLAINTIFF,
v.
THE BOARD OF EDUCATION FOR THE CITY OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER

Plaintiff Paul Pavlovic brought this suit against his former employer, Defendant Board of Education for the City of Chicago, alleging that the Board discriminated against him on the basis of age, disability, and national origin in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq., the Americans with Disabilities Act (ADA) , 42 U.S.C. §§ 12112 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.*fn1 Pavlovic also alleges that the Board retaliated against him for filing complaints with the Equal Employment Opportunity Commission (EEOC) in violation of Title VII, 42 U.S.C. § 2000e--3(a), and the ADEA, 29 U.S.C. § 623(d). Lastly, Pavlovic contends that the Board deprived him of property and liberty interests in violation of his procedural due process rights by not providing him adequate notice or opportunity to be heard during his termination proceedings. Defendant Board moves for summary judgment on all of Pavlovic's claims.

R. 20. For the reasons stated below, the Board's motion for summary judgment is granted.

I.

In evaluating the summary judgment motion, the Court views the facts in the light most favorable to the non-movant, Pavlovic. Paul Pavlovic is a 69-year-old man who was first hired by the Board in 1999 to work as a substitute Engineer Custodian Grade II. R. 22, Def.'s Stmt. of Facts (DSOF) ¶ 1. Pavlovic is a member of the International Union of Operating Engineers, AFL-CIO, Local 143-143B, which is the sole and exclusive bargaining representative for union engineers. Id. ¶ 6. Pursuant to a collective bargaining agreement between the Board and the union, Pavlovic was permitted to submit bids to his union for higher pay grades. Id. ¶ 1. All assignments of union engineers are governed by the collective bargaining agreement. Id. ¶ 6.

In October 2006, Pavlovic-then a Grade IV Engineer at the Key School-submitted a bid for a Grade V Engineer position at Clinton Elementary School, and he was awarded the position in December 2006. DSOF ¶ 7. But Pavlovic changed his mind and wanted to withdraw his bid for the position at Clinton; he was not permitted, however, to do so under the terms of the collective bargaining agreement. Id. ¶¶ 9, 12. Thus, Pavlovic was officially assigned to the Grade V Engineer position at Clinton School as of December 18, 2006. Id. ¶ 12.

At about the same time that he was assigned to Clinton School, Pavlovic began experiencing symptoms of depression. R. 22-4, Def.'s Exh. 4 at 18:14-16, 20:3-11 (Pavlovic Dep.). On January 4, 2007, Pavlovic was diagnosed with major depression and checked himself into the psychiatric ward at Illinois Masonic Hospital. DSOF ¶ 14; Pavlovic Dep. at 21:22-24. The following day, the hospital contacted Clinton School to warn them that Pavlovic had left the hospital against medical advice after telling the staff that he wanted to hurt Principal Teresa Moy and a Human Resources representative. DSOF ¶¶ 15, 16. Pavlovic has no memory of making these threats. Pavlovic Dep. at 22:6-9.

Following the threat to Principal Moy, the Board directed Pavlovic to undergo a fitness-for-duty medical examination in accordance with the Board's rules. DSOF ¶ 21. On January 26, 2007, Pavlovic was examined by independent physician Dr. Joan Viets at Mercy Works to determine whether he was fit to return to work. Id. ¶ 23. Dr. Viets described Pavlovic as "angry and hostile" toward job-related issues and recommended that he be evaluated by a psychiatrist before being allowed to return to work. R. 22-16, Def.'s Exh. 16.

Pursuant to Dr. Viets's recommendation, the Board notified Pavlovic by mail that he was to report to Dr. Edward Tuder for a psychiatric exam on February 1, 2007. DSOF ¶ 27. When he failed to show up for the appointment, the Board notified him of a second appointment on May 21, 2007. Id. Both letters indicated that failure to comply would be grounds for termination. R. 22-17, Def.'s Exh. 17; R. 22-18, Def.'s Exh. 18. Pavlovic failed to show up for either the February or May 2007 appointment. DSOF ¶ 28.

In the meantime, Pavlovic submitted a request for a medical leave of absence in January 2007. DSOF ¶ 32. The medical certification accompanying his request stated that Pavlovic suffered from major depression, was presently unable to work at all, and might be able to return to work in four weeks. R. 39, Pl.'s Resp. Br.*fn2 Exh. 2. The Board notified Pavlovic that his request for leave had been approved from January 22, 2007 through January 22, 2008. DSOF ¶ 35.

Pavlovic claims that he attempted to return to work in February 2007 after receiving a clearance letter from his own physician, Dr. James Dumphy. R. 39, Pl.'s Resp. Br. Exh. 5. Because Dr. Dumphy was an internal medicine specialist rather than a psychiatrist, the Board found Pavlovic's medical clearance to be insufficient. DSOF ¶ 20. Pavlovic did eventually show up for an independent psychiatric evaluation with Dr. Tuder on August 25, 2007, at which time he was found fit to return to work. Id. ¶¶ 29, 30.

Although Pavlovic was approved for leave through January 22, 2008, the Board was only required to hold his position open for the first twelve weeks of FMLA leave under the Board's Family Medical Leave Act policy and the union's collective bargaining agreement. DSOF ¶ 36. When Pavlovic did not return to duty after January 22, 2008 (when his leave period expired), the Board declared him Absent Without Leave and gave him ten days to explain his absence. Id. ¶¶ 37, 38. After receiving an explanation letter from Pavlovic's attorney, the Board reinstated Pavlovic on September 15, 2008. Id. ¶¶ 37-41.

The Board assigned Pavlovic to the North Side Roving crew as a Grade V Engineer upon his return. DSOF ¶ 41. Although he did not have a permanent post, Pavlovic continued to receive pay commensurate with his position as a Grade V Engineer. Pavlovic Dep. at 62:8-24. Pavlovic testified, however, that after being assigned to the roving crew, he was not paid vacation or sick days, in addition to 285.5 hours of work. Id. at 56:19. Pavlovic claims that this was not rectified until after he filed charges with the EEOC in March 2009. Id. at 57:13-17.

In August 2009, Pavlovic was assigned to Lawndale Community Academy as a substitute engineer, where he began experiencing a series of performance and disciplinary problems. DSOF ¶ 42. Pavlovic allegedly refused to paint the stairway in the school's east building after being instructed to do so by Principal Jeannine Wolf on several occasions. Id. ¶¶ 44, 45, 47. He also allegedly failed to respond to a fire alarm and claimed not to know how to reset the fire alarm when asked by the fire marshal.

R. 22-33, Def.'s Exh. 33. Security Officer Ian McCurry at Lawndale expressed concern that Pavlovic was not knowledgeable about his responsibilities, and would hide when called upon to perform his duties. Id. Principal Wolf described Pavlovic as "incompetent" and requested a replacement engineer from Chief Engineer Anthony Batastini. R. 22-32, Def.'s Exh. 32.

Pavlovic's troubles culminated on September 28, 2009, when he was asked to meet with Principal Wolf and Assistant Engineer Sharell Lane in Wolf's office regarding his assigned duties. DSOF ¶ 48. During this meeting, Wolf presented Pavlovic with directives outlining his job responsibilities. Id. ¶ 50. The Board claims (based on Wolf's account of the meeting) that Pavlovic then began ...


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