Burmistrz v. City of Chicago
| Decision Date | 22 February 2002 |
| Docket Number | No. 00 C 3490.,00 C 3490. |
| Citation | 186 F.Supp.2d 863 |
| Parties | Anthony S. BURMISTRZ, Plaintiff, v. CITY OF CHICAGO, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Herbert H. Victor, Michelle Roberts, Chicago, for Plaintiff.
Nadine C. Abrahams, Senior Counsel, Mario Utreras, Assistant Corporation Counsel, Corporation Counsel of the City of Chicago, Chicago, for Defendant.
Plaintiff Anthony S. Burmistrz ("Plaintiff" / "Burmistrz") filed a two-count amended complaint against his former employer City of Chicago ("Defendant" / "City"). Count I was brought against Defendant alleging discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213. Count II alleges Defendant retaliated against Plaintiff in violation of the ADA. Defendant moves for summary judgment contending Plaintiff's claims are untimely and Plaintiff cannot establish disparate treatment, denial of a reasonable accommodation, or retaliation. Because Plaintiff's claims were untimely filed, Defendant's motion for summary judgment is granted. Additionally, Defendant articulated a legitimate non-discriminatory reason for Plaintiff's termination, this reason was not pretextual, and Plaintiff was not denied a reasonable accommodation.
Burmistrz began working as an ironworker in the City's Department of Transportation in 1981. (Pl.Res. ¶¶ 4, 5).1 In 1985 Plaintiff became a subforeman of ironworkers and in October 1996, his job title became foreman of ironworkers. (Pl. Res. ¶¶ 6, 7). The Defendant is the City of Chicago. (Pl.Res. ¶ 1).
As an ironworker, Plaintiff's duties included ironwork repair to maintain bridges and roadways. (Pl.Res. ¶ 5). In 1985, he became subforeman and in 1996 he became foreman. (Pl.Res. ¶¶ 6, 7). The job duties of a foreman and subforeman are generally the same. (Def.Res. ¶ 6).2
The primary function of the foreman is to supervise and coordinate the work of bridge and structural ironworkers and to coordinate that work under the general direction of the Acting General Foreman of Ironworkers. (Pl.Res. ¶ 8). The foreman job is a full-time, 40 hour per week position with overtime as necessary. (Pl. Res. ¶ 10). A regular foreman's shift begins at 7:00 a.m. and concludes at 3:30 p.m. (Id.). Foremen are hourly employees, and under the Collective Bargaining Agreement ("CBA") between the City and the International Association of Bridge, Structural and Reinforcing Ironworkers, Local 1, the foreman and ironworkers are not granted any sick days. (Id.).
Plaintiff had many supervisors during his tenure with the City. Raymond Gaik was Plaintiff's immediate supervisor for the last seven months of Plaintiff's employment between April and November, 1998. (Pl.Res. ¶ 11). Robert Serpe served as general foreman from the mid to late-1990's, working out of the facility where the ironworkers reported. (Pl.Res. ¶ 12). Effective April 1, 1998, Serpe was assigned to an office, and Gaik became "acting" general foreman assuming Serpe's prior duties. (Id.) Michael Pavichevich was a general foreman for seven and a half to eight years, before being demoted to foreman in September, 1995. (Pl.Res. ¶ 13). Pavichevich was then made acting general foreman for eight to nine months in 1996 or 1997. (Id.).
Stan-Lee Kaderbek is the Chief Engineer for the Bureau of Bridges and Transit within the City's Department of Transportation serving in that capacity from May 1993 to present. (Pl.Res. ¶ 14). His duties include general oversight of all day labor and bridge tender personnel, overseeing the general operations of the Bureau, and overseeing budget and personnel matters, including those of bridge and structural ironworkers and their supervisors. (Id.).
Robert Boskovich is the executive officer of Local 1, Ironworkers, the local union belonging to the International Association of Bridge, Structural, Ornamental, and Reinforcing Ironworkers. (Pl.Res. ¶ 15). His duties involve the operations of the local and negotiating contracts for the local. (Id.).
Burmistrz asserts he was diagnosed in 1996 with a disability known as somatization4 disorder. (Pl. Dep. at 45, 73-74). Burmistrz also states he suffers from acute anxiety disorder and acute depression with panic disorder. (Pl. Dep. at 45). Additionally, Burmistrz claims he became sick and had various problems such as stomach problems, insomnia, and a nervous condition. (Serpe Dep. at 12). Plaintiff's illness also prevented him from attending work at times. (Pl. Dep. at 215). After periods of hard work, he claims he experienced heavy cramps in his stomach and needed to immediately use the washroom; he would then experience weakness and insomnia. (Id.).
Although Plaintiff does not remember whether or not he told any employee at the City about his diagnosis, he thinks he would have tried to have kept it quiet. (Pl. Dep. at 74). He did not recall telling any ironworkers he was suffering from a mental impairment because "that is the last thing you want them to know." (Pl. Res. ¶¶ 20, 21).
However, Plaintiff did speak with Serpe on several occasions regarding his health problems. (Def. Res. ¶ 17; Serpe dep. at 40). In 1995, Serpe noticed for the first time that Plaintiff was emotional, stressed, and looked like he needed sleep. (Serpe dep. at 40). In 1995 and 1996, Serpe spoke with Plaintiff's doctors regarding his health problems and satisfied himself that Plaintiff was indeed sick. (Serpe dep. at 49-57). Serpe also claims he received a note from Plaintiff's doctor explaining Plaintiff was under a doctor's care and what his treatments were. (Def. Res. ¶ 19 with objection; Serpe dep. at 59). Additionally, over the phone, Serpe states he was told Plaintiff's condition was chronic stomach disorder and the doctor used a "big word" and said it was due to stress. (Serpe dep. at 60).
Plaintiff never discussed his medical or health condition with Kaderbek. (Pl.Res. ¶ 23). Boskovich knew nothing about Plaintiff's alleged disability. (Pl.Res.¶ 24). Pavichevich stated he knew nothing about Plaintiff's mental health, and believed Plaintiff was as sane as he was. (Pl.Res. ¶ 25). Pavichevich also does not recall being told about what medications Plaintiff was taking. (Pl.Res. ¶ 28).
Plaintiff never informed Gaik he was suffering from a disability (Pl.Res. ¶ 17); however, Pavichevich claims Gaik knew Plaintiff had stomach problems and was prone to take off work every once in a while. (Pavichevich Dep. at 83-84). Plaintiff also never informed Gaik he had a sickness or medical condition that would affect his ability to call in when he would be absent from work, nor did he ask that he not be required to call in. (Pl.Res. ¶ 19).
A CBA was in effect between Local 1 and the City of Chicago, from July 1, 1995 through June 30, 1999. (Pl.Res. ¶ 45). Plaintiff was covered by the CBA. (Id.).
The CBA states at Section 2.1 "The union recognizes that certain rights, powers, and responsibilities are solely and exclusively vested in the employer ... including the right to suspend, discipline, or discharge for just cause." (Pl.Res. ¶ 46). Furthermore, at Section 8.4, entitled "Break in Service," the CBA states "Notwithstanding the provision of any ordinance or rule to the contrary, continuous service of an employee is broken, the employment relationship is terminated, and the employee shall have no right to be rehired, if the employee ... is absent for five (5) consecutive work days without notifying the employee's authorized Employer representative unless the circumstances preclude the Employee, or someone on his behalf, from giving such notice ..." (Pl. Res. ¶ 47).
On September 23, 1998, Kaderbek issued a memorandum to all trades staff requiring them to call 312-742-0097 before 7:00 a.m. or the start of their shift on the day they were to be absent from work. (Pl.Res. ¶ 48). This memorandum required the individual calling in to leave their name, trade, and the reasons for their absence on the voice mail. (Pl.Res. ¶ 49). Additionally, the memorandum stated calling one's supervisor did not relieve one from calling 312-742-0097, nor would calls to supervisors meet the requirements of this policy. (Id.). Furthermore, calls recorded after 7:00 a.m. or the start of one's shift would be noted as "Absent/No Pay-No Call" and be considered unapproved absences which may result in disciplinary action. (Pl.Res.¶ 50). The memorandum also indicated "[p]ursuant to the City/Labor Coalition Agreement, more than five continuous days of `Absent/No Pay-No Call' shall constitute a break in service and separation proceedings will commence against the employee." (Id.). Plaintiff believes he took this memorandum off the bulletin board at work, copied it, and returned it to the bulletin board. (Pl.Res. ¶ 53).
On September 28, 1998, Kaderbek issued another memorandum regarding the call-in line because the previous memorandum stated an incorrect telephone number. (Pl.Res. ¶ 51). The memorandum stated the correct call-in number as 312-742-0092 and reiterated when individuals were to call in. (Id.). Plaintiff also took this memorandum off the bulletin board at work when he saw it had a call-in number. (Pl.Res. ¶ 54).
Plaintiff claims he could not predict when he could not go to work. (Def.Res. ¶ 14). He asserts his "flare-ups," times he could not go to work, would last from a couple of days to two to three weeks. (Pl.Res. ¶ 44).
In 1997, Plaintiff took 24 full days of unpaid leave. (Pl.Res. ¶ 37). Of these, there may have been days Plaintiff did not call in. (Pl.Res. ¶ 36). Between March 5 and 31, 1997, Plaintiff took 19...
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