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Kawczynski v. F.E. Moran, Inc.

United States District Court, N.D. Illinois, Eastern Division

February 23, 2017

JEFFREY E. KAWCZYNSKI, Plaintiff,
v.
F.E. MORAN, INC., FIRE PROTECTION OF NORTHERN ILLINOIS, and F.E. MORAN, INC., FIRE PROTECTION, Defendants.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE United States District Court Judge

         On November 5, 2015, Plaintiff Jeffrey E. Kawczynski filed a Third Amended Complaint against Defendants F.E. Moran, Inc., Fire Protection of Northern Illinois (“FPN”) and F.E. Moran Inc. Fire Protection (“Fire Protection”) alleging employment discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. Before the Court are Defendants' motions for summary judgment and Plaintiff's motion for summary judgment brought pursuant to Federal Rule of Civil Procedure 56(a) and Northern District of Illinois Local 56.1. For the following reasons, the Court grants Defendants' motions and denies Plaintiff's motion. [80, 83, 86.] The Court denies Defendants' motion to strike Plaintiff's expert as moot. [73.] The Court dismisses this lawsuit in its entirety.

         BACKGROUND

          I. Northern District of Illinois Local Rule 56.1

         “The purpose of Rule 56.1 is to have the litigants present to the district court a clear, concise list of material facts that are central to the summary judgment determination. It is the litigants' duty to clearly identify material facts in dispute and provide the admissible evidence that tends to prove or disprove the proffered fact.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015). Local Rule 56.1(a) “requires the party moving for summary judgment to file and serve a ‘statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law.'” Id. at 218 (citation omitted). “The non-moving party must file a response to the moving party's statement, and, in the case of any disagreement, cite ‘specific references to the affidavits, parts of the record, and other supporting materials relied upon.'” Petty v. Chicago, 754 F.3d 415, 420 (7th Cir. 2014) (citation omitted); see also L.R. 56.1(b)(3)(A). Local Rule 56.1(b)(3)(C) requires the non-moving party to file a separate statement of additional facts. See Thornton v. M7 Aerospace LP, 796 F.3d 757, 769 (7th Cir. 2015).

         Local Rule 56.1 statements and responses should identify the relevant admissible evidence supporting the material facts - not make factual or legal arguments. See Zimmerman v. Doran, 807 F.3d 178, 180 (7th Cir. 2015). “When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.” Curtis, 807 F.3d at 218 (quoting Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009)). The Seventh Circuit “has consistently upheld district judges' discretion to require strict compliance with Local Rule 56.1.” Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015).

         Here, Plaintiff has failed to file a statement of facts under Local Rule 56.1(a) in support of his motion for summary judgment and further failed to respond to Defendants' Local Rule 56.1(a) statements as required under Local Rule 56.1(b)(3)(A). As such, Defendants' Rule 56.1(a) statements are deemed admitted. See L.R. 56.1(b)(3)(C) (“All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.”); Curtis, 807 F.3d at 218-19 (“The non-moving party's failure to admit or deny facts as presented in the moving party's statement or to cite to any admissible evidence to support facts presented in response by the non-moving party render the facts presented by the moving party as undisputed.”).

         Rather than follow Local Rule 56.1, Plaintiff has provided his own affidavit dated January 13, 2017 to rebut some of Defendants' Rule 56.1 statements in which he directly contradicts his July 26, 2016 deposition testimony, thereby violating the “sham affidavit” rule. See Cook v. O'Neill, 803 F.3d 296, 298 (7th Cir. 2015) (“A ‘sham affidavit' is an affidavit that is inadmissible because it contradicts the affiant's previous testimony ... unless the earlier testimony was ambiguous, confusing, or the result of a memory lapse.”). Under these circumstances, the Court will only consider Plaintiff's averments that are an amplification of his deposition testimony, but not statements that clearly contradict his earlier deposition testimony. See id.; see also McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 751 (7th Cir. 2010) (sham affidavit rule “applies when the change is incredible and unexplained”).

         II. Relevant Facts

         Plaintiff was born is 1962 and is currently 54 years old. (R. 88, FPN Rule 56.1 Stmt. Facts ¶ 1.) Fire Protection, which incorporated in June 1980, is an Illinois corporation headquartered in Champaign, Illinois. (Id. ¶ 2; R. 85, Fire Prot. Rule 56.1 Stmt. Facts ¶¶ 3, 4.) FPN was incorporated in October 2007 as an Illinois corporation headquartered in Northbrook, Illinois and is a separate corporation from Fire Protection. (FPN's Stmt. Facts ¶¶ 3, 4.) Fire Protection employed Plaintiff from June 2007 until early January 2008 as a sprinkler fitter apprentice. (Fire Prot. Stmt. Facts ¶¶ 6, 8-11.) After January 4, 2008, Fire Protection did not direct Plaintiff's work, had no involvement in his day-to-day assignments, and had no authority to discipline, termination, or lay-off Plaintiff. (Id. ¶¶ 21, 22.) Instead, FPN employed Plaintiff as a sprinkler fitter apprentice starting in January 2008. (FPN's Stmt. Facts ¶ 9.) Plaintiff completed his apprenticeship in September 21, 2012, after which he became a journeyman sprinkler fitter for FPN. (Id. ¶ 8.) Plaintiff worked for FPN until April 2013. (Id. ¶ 10.)

         A collective-bargaining agreement that existed between the National Fire Sprinkler Association and Sprinkler Fitters and Apprentices Local Union No. 281 (hereinafter “Local 281”) governed the terms and conditions of Plaintiff's employment with FPN. (Id. ¶ 11.) Throughout his employment, Plaintiff worked on numerous job sites - some jobs lasted only a few days and others lasted a month or longer. (Id. ¶ 13.) During the relevant time period, FPN had three superintendents, namely, Rick Nelson, Scott Acred, and Jeff Smith, who had decision-making authority with regard to sprinkler fitters, including the authority to inform sprinkler fitters that they would be “sitting” for a period of time. (Id. ¶ 14.) On the other hand, job site foremen did not have the authority to make decisions regarding the terms and conditions of sprinkler fitters' employment and did not have the authority to inform a fitter that he would be sitting. (Id. ¶ 15.) “Sitting” is when work is unavailable due to the inconsistent nature of the sprinkler fitting industry. (Id. ¶¶ 13, 17.) It was not uncommon for Plaintiff, along with other sprinkler fitters, to “sit” for periods of time ranging from a day to several weeks when no work was available. (Id. ¶ 17.) At his deposition, Plaintiff testified that when he was on a “sit, ” he was still employed by Defendants. (Id. ¶ 18.) Plaintiff testified that the times he “sat” during his employment had nothing to do with his age. (Id. ¶ 19.)

         Also at his deposition, Plaintiff testified that FPN did not lay him off and that when he left his employment in April 2013 he was on a “sit” due to the lack of work. (Id. ¶¶ 44, 54, 55.) It is undisputed that Plaintiff did not contact Human Resources following his last day of work in April 2013, although he did contact his superintendents to inquire about more work. (Id. ¶¶ 59, 60.) Thereafter, certain FPN superintendents responded that work was slow and one superintendent informed Plaintiff on two occasions that he was “try to get something” for Plaintiff. (Id. ¶¶ 60, 61.) Although Plaintiff had some periods of “sitting” while employed at FPN, he felt that the April 2013 sit was different because the superintendents did not return his calls. (Id. ¶ 63.) In particular, Plaintiff testified that he had a feeling that “they were not giving me work because they were getting rid of me, ” although Plaintiff admitted that he had no evidence to support this “feeling.” (R. 89-1, Ex. A, Kawczynski Dep., at 230, 259.) Moreover, even though Plaintiff maintains that the superintendents did not return his calls in April 2013, he testified that two of the superintendents replied to him via text messages when he asked for work. (Id. ¶¶ 63, 71.) There is also undisputed evidence that these superintendents left Plaintiff voice mails for work in July 2013, and that Plaintiff never returned their calls. (Id. ¶¶ 72, 73.) In the meantime, Plaintiff testified that around the time he filed his EEOC Charge in May 2013, he decided that he did not want to return to work for FPN because he believed FPN would start a “paper trail” and try to fire him. (Id. ¶ 70.)

         While at the union apprentice school, Plaintiff's co-workers called him nicknames such as “apprentisaurus” and other co-workers called him “old man” and “old Jeff” in 2008. (Id. ¶¶ 29, 31.) In addition, Plaintiff asserts that one of his co-workers wrote “apprentisaurus” on his hardhat at work. (Id. ¶ 35.) Further, Plaintiff maintains that in June and July 2008 his foreman referred to him as “old man” or “apprentisaurus.” (Id. ¶ 34.) Plaintiff also testified that he did not experience any name calling in 2009 and he contends that only one incident occurred in 2010. (Id. ¶ 41.) Once Plaintiff became a journeyman in 2012, he admits that people stopped calling him an apprentisaurus. (Id. ¶ 25.) Although Plaintiff maintains that he told his co-workers to stop calling him old man and apprentisaurus, Plaintiff testified that he did not report this “name calling” to Local 281 while he was an apprentice nor did he complain to anyone at FPN's Human Resources Department about the name calling despite the fact that he knew he could bring complaints about discrimination and harassment pursuant to FPN's antidiscrimination policies. (Id. ¶¶ 6, 7, 26, 32; Ex. A, Kawczynski Dep., at 72, 158.)

         LEGAL ...


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