Jovanovic v. In-Sink-Erator Div Emerson Elec. Co.

• Decision Date: 07 January 2000
• Docket Number: No. 98-3726,IN-SINK-ERATOR,98-3726
• Citation: 201 F.3d 894
• Parties: (7th Cir. 2000) DAN J. JOVANOVIC, Plaintiff-Appellant, v.DIVISION OF EMERSON ELECTRIC COMPANY, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 894

201 F.3d 894 (7th Cir. 2000)

DAN J. JOVANOVIC, Plaintiff-Appellant, v. IN-SINK-ERATOR DIVISION OF EMERSON ELECTRIC COMPANY, Defendant-Appellee.

No. 98-3726

In the United States Court of Appeals For the Seventh Circuit

Argued May 18, 1999

Decided January 7, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 96 C 481--Rudolph T. Randa, Judge.

Before COFFEY, KANNE and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

The plaintiff-appellant, Dan Jovanovic, brought this action against the defendant-appellee, In-Sink-Erator Division of Emerson Electric Company ("ISE") of Racine, Wisconsin, alleging a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12111, et seq., when ISE, according to Jovanovic, terminated his employment because he was suffering from asthma and Barrett's esophagus.¹ The trial court ordered that the materials Jovanovic submitted in response to the summary judgment motion be stricken from the record because Jovanovic failed to file a timely response to ISE's motion for summary judgment. The judge then granted ISE's motion for summary judgment. We affirm.

I. BACKGROUND

Jovanovic began working at ISE, a manufacturer of garbage disposals and hot water dispensers, on February 13, 1984, as a tool and die maker. Tool and die makers at ISE's Racine facility have the responsibility to respond to maintenance and repair needs for equipment throughout the plant. As the district court noted, "it is 'their job to keep the plant running.' . . . Tool and die makers possess technical skills which are specific to their job. . . . Few of these skilled workers are employed in the plant, and if absent they are not easy to replace." During the time that Jovanovic was employed, ISE had an attendance policy which stated that an employee would be considered "excessively absent" if that employee was absent at a rate one full percentage point greater than the plant absentee average, provided that such absence rate exceeded seven days in a twelve-month period.²

Jovanovic received his first warning regarding his erratic attendance on September 27, 1985. ISE thereafter warned Jovanovic on December 15, 1986, September 25, 1991, November 11, 1991, May 19, 1992, January 18, 1993,³ and March 25, 1993.⁴ On March 30, 1993, Jovanovic reported late to work and ISE terminated his employment.

After his termination, Jovanovic filed this suit alleging that ISE discharged him because of his disability in violation of the ADA. Shortly after the case was assigned, the trial judge entered a scheduling order establishing discovery and filing deadlines. On March 12, 1997, Jovanovic's counsel informed the court that he was in the process of gaining admission to the Eastern District of Wisconsin (he claimed he needed a certification of good faith from the Illinois Supreme Court) and requested that discovery be extended until May 31, 1997, and the deadline for dispositive motions be extended to June 15, 1997. On April 23, 1997, Jovanovic's counsel informed the district court that he had filed the necessary papers for admission and was awaiting a response. Satisfied that Jovanovic's counsel had moved for admission, the court granted Jovanovic's motion to amend the scheduling order on April 24, 1997.

Pursuant to the scheduling order, ISE moved for summary judgment on June 12, 1997. Although Jovanovic's deadline for responding was July 17, 1997, he failed to file a response, much less request an extension, until July 22, when he asked for extra time to respond (until August 15) and requested leave to take eight additional depositions. When making this extension request, Jovanovic's counsel informed the trial court that, contrary to his prior representations, there was no application for his admission to practice in the Eastern District of Wisconsin on file.⁵ Because Jovanovic's counsel was unable to substantiate his claim that he had previously submitted an application for admission to the Eastern District of Wisconsin, the judge concluded that he could "only assume no such application was filed."

Before the judge ruled on his motion to extend time to respond, Jovanovic filed a response to ISE's summary judgment motion on August 22, 1997. On October 31, 1997, the trial judge denied Jovanovic's motion to extend time to respond. The court considered ISE's motion for summary judgment based only on the record before it, which did not include Jovanovic's response brief and supporting materials, because they had been stricken from the record. The district judge granted ISE's summary judgment motion. Jovanovic appeals.

II. ISSUES

On appeal, we consider whether the trial court abused its discretion in declining to consider the papers submitted by Jovanovic in opposition to ISE's motion for summary judgment. We also consider whether the court erred in granting summary judgment to ISE on Jovanovic's claim that ISE allegedly discharged him because of his disability.

III. DISCUSSION

A. Refusal to consider Jovanovic's untimely response

Jovanovic initially contends that the trial court abused its discretion in declining to consider his response to ISE's summary judgment motion. While counsel does not contest that the papers were untimely, nor even that the request for an extension was untimely, he asserts that, given the circumstances surrounding the tardiness of his filing, the trial judge should have found that the untimely filing was the result of "excusable neglect." Jovanovic's counsel explains that the materials were late because he had a state court trial which was advanced for trial due to the failing health of a party to that litigation and because of a family crisis to which he had to attend.

We review a trial court's refusal of a request for an extension for an abuse of discretion. See Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1030 (7th Cir. 1998). "When reviewing challenges for abuse of discretion in district court scheduling, matters of trial management are for the district judge and we intervene only when it is apparent the judge acted unreasonably." Id. (citing Brooks v. United States, 64 F.3d 251, 256-57 (7th Cir. 1995)).

In denying Jovanovic's request for an extension, the trial court cited: 1) the fact that the applicable deadlines had been set and extended at Jovanovic's urging; 2) that even Jovanovic's request for an extension of time on August 22, 1997, was not filed within the deadline; and 3) that Jovanovic's counsel acknowledged that, contrary to his prior representations to the court, he had not yet been admitted to practice in the Eastern District of Wisconsin. The judge also noted that Jovanovic's motion failed to set forth adequate reasons for his failure to file either his response or a request for an extension within the July 17, 1997 deadline.

After the court issued its original decision, Jovanovic filed a Motion for Reconsideration, claiming that the trial judge erred in failing to apply the factors set forth in Pioneer v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993), to determine whether Jovanovic's counsel acted out of "excusable neglect." On September 25, 1998, the judge denied Jovanovic's motion for reconsideration. The trial court specifically applied the Pioneer factors, including an evaluation of the danger of prejudice to the non- movant, the length of the delay and its potential impact on the court proceedings, the reasons for the delay, including whether it was within the control of the movant, and whether the movant acted in good faith. Id. at 395, 113 S.Ct. 1489.⁶

After reviewing the record, we refuse to hold that the district court abused its discretion in declining to consider Jovanovic's untimely response. Jovanovic's counsel was late in filing papers with the court on a number of occasions, he missed deadlines that he had requested, and he misrepresented to the court the status of his application for admission to practice before it and then used the fact that he was not admitted as an excuse for his untimely filing. Because we hold that the trial judge acted within his discretion in denying Jovanovic's request for an extension, Jovanovic's response brief and supporting materials are not a part of this record on appeal.

B. Jovanovic's Disparate Treatment Claim

Jovanovic contends that the district court erred in granting ISE's summary judgment motion on the grounds that Jovanovic was not a qualified individual with a disability under the ADA because he could not perform the essential job function of regular attendance. He argues that the record presented by ISE in support of its motion does not support the court's finding that job attendance was an essential function of the tool and die maker job. Instead, he claims, that when the judge considered an affidavit submitted by Jovanovic's supervisor, the court went beyond ISE's proposed findings of fact and into the full record to reach his decision. Jovanovic asserts that, in so doing, the trial judge opened up the entire record to review and, upon review of the entire record, should have denied ISE's motion because the record reveals disputed material facts.

We review a district court's grant of summary judgment de novo. See Gonzalez, 133 F.3d at 1031. The record and all reasonable inferences that may be drawn from it are viewed in the light most favorable to Jovanovic. See id. Summary judgment is only appropriate if the materials contained in the record demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).⁷

Jovanovic contends that even absent consideration of his materials in response to ISE's motion, the trial court's grant of summary judgment was improper. He asserts that there is no evidence in the record to support the court's conclusion that he is not a "qualified individual with a disability," which is defined by the ADA as...