Kawczynski v. F.E. Moran, Inc.

238 F. Supp. 3d 1076, 2017 WL 714112, 2017 U.S. Dist. LEXIS 25031, 101 Empl. Prac. Dec. (CCH) 45,745
CourtDistrict Court, N.D. Illinois
DecidedFebruary 23, 2017
DocketCase No. 15 C 3099
StatusPublished
Cited by8 cases

This text of 238 F. Supp. 3d 1076 (Kawczynski v. F.E. Moran, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kawczynski v. F.E. Moran, Inc., 238 F. Supp. 3d 1076, 2017 WL 714112, 2017 U.S. Dist. LEXIS 25031, 101 Empl. Prac. Dec. (CCH) 45,745 (N.D. Ill. 2017).

Opinion

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 Plaintiffs motion for summary judgment' brought pursuant to Federal Rule of Civil Procedure 56(a) [1080]*1080and Northern District of Illinois Local 56.1. For the following reasons, the Court grants Defendants’ motions and denies Plaintiffs motion. [80, 83, 86.] -The Court denies Defendants’ motion to strike Plaintiffs 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 416, 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 separ rate 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 tó 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 Plaintiffs averments that are an amplification of [1081]*1081his 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 Plaintiffs 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 Sprinlder Fitters and Apprentices Local Union No. 281 (hereinafter “Local 281”) governed the terms and conditions of Plaintiffs 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.

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238 F. Supp. 3d 1076, 2017 WL 714112, 2017 U.S. Dist. LEXIS 25031, 101 Empl. Prac. Dec. (CCH) 45,745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kawczynski-v-fe-moran-inc-ilnd-2017.