Joseph Buzinski v. American Airlines, Incorporate ( 2010 )


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  •                            NONPRECEDENTIAL DISPOSTION
    To be cited only in accordance with
    Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued April 7, 2010
    Decided June 10, 2010
    Before
    DIANE P. WOOD, Circuit Judge
    TERENCE T. EVANS, Circuit Judge
    DIANE S. SYKES, Circuit Judge
    No. 09-2680
    JOSEPH R. BUZINSKI,                                    Appeal from the United States District
    Plaintiff-Appellant,            Court for the Northern District
    of Illinois, Eastern Division.
    v.
    No. 1:08-cv-03966
    AMERICAN AIRLINES,
    INCORPORATED,                                          Suzanne B. Conlon,
    Defendant-Appellee.                    Judge.
    ORDER
    Joseph R. Buzinski appeals from a grant of summary judgment dismissing
    the case he brought against his former employer American Airlines, Inc., for retaliatory
    discharge under Illinois law. Our jurisdiction rests on diversity of citizenship. The district
    court found that Buzinski failed to establish that his discharge was causally connected to
    his plan to file a claim for workers’ compensation benefits. First, the facts.
    No. 09-2680                                                                                Page 2
    American Airlines hired Buzinski in 2000 to work as a fleet service clerk at
    O’Hare International Airport. He became an aircraft fueler in 2007 and injured his right
    arm and shoulder at work on October 21 of that year. Buzinski reported the injury to his
    manager Dianna Shirley, who completed an accident form and reviewed American’s
    “Ground Employee Injury On Duty Information Package” with him. Shirley called
    Buzinski’s house at least twice between October 21 and November 5 in order to schedule a
    board of inquiry hearing, which is a fact-finding session to determine an injury’s cause.
    During one phone call, Buzinski told Shirley he could not get to O’Hare for a hearing
    because his doctor had restricted him from driving and had told him not to take public
    transportation because he might re-injure his shoulder. However, in a subsequent call
    Shirley was told that Buzinski was “out picking up his son,” so she suspected Buzinski was
    lying about not being able to attend the hearing.
    Shirley called Buzinski on November 6 to try to schedule a hearing, but
    Buzinski again claimed he could not get to O’Hare. Accordingly, Shirley and Buzinski’s
    union steward held the board of inquiry session over the phone the following day.
    Buzinski confirmed that the hearing was taking place over the phone because his doctor
    had advised him not to drive. In the meantime, American was investigating Buzinski’s
    activities to see if Shirley’s suspicions were warranted. Surveillance on November 6 and 8
    established that Buzinski was driving his car despite what he told Shirley. An
    investigatory meeting was held on November 20, 2007, pursuant to Buzinski’s collective
    bargaining agreement, where Buzinski admitted to driving and said he could have taken
    public transportation. As a result, he was terminated for violating American’s rules against
    dishonesty.1 Buzinski filed a claim for workers’ compensation benefits about a month after
    his discharge, and he filed this lawsuit several months later. As an aside, we note that
    Buzinski grieved the termination under American’s collective bargaining agreement with
    his union. The grievance was denied and neither Buzinski nor his union took the matter to
    arbitration.
    As an initial matter, Buzinski argues that the district court abused its
    discretion in refusing to accept many of the facts he submitted in response to American’s
    summary judgment motion under Northern District of Illinois Local Rule 56.1. We review
    a district court’s decision concerning whether a litigant complied with a local rule for an
    abuse of discretion. Cichon v. Exelon Generation Co., L.L.C., 
    401 F.3d 803
    , 809 (7th Cir. 2005).
    In the context of Rule 56.1, we have repeatedly held that a district court may require strict
    1
    Buzinski argues that American had already fired him on November 5. In support, he refers
    to an exhibit that lists him as “Terminated/Resigned” as of November 5. However, the exhibit is an
    unauthenticated document, and Buzinski’s complaint alleges he was terminated November 20, which
    amounts to a binding judicial admission.
    No. 09-2680                                                                              Page 3
    compliance. 
    Id.
     Rule 56.1 governs summary judgment procedure and requires the
    opposing party to respond to the movant’s statement with specific references to affidavits,
    parts of the record, and other supporting materials. The district judge refused to accept
    many of Buzinski’s statements because she found that he relied on nonresponsive evidence
    and improper factual characterizations. In so ruling, the judge noted the breaks she had
    already given Buzinski: after Buzinski received a final extension to respond to American’s
    motion, he filed Rule 56.1 statements without the referenced evidence. The judge granted
    leave to remedy the deficiency, but Buzinski’s materials remained deficient. We find the
    district court did not abuse its discretion in refusing to accept Buzinski’s unsupported
    statements.
    Moving to our de novo review of the retaliatory discharge claim, Buzinski
    alleges he was fired for exercising his rights under the Illinois Workers’ Compensation Act.
    When a federal court exercises diversity jurisdiction to hear a retaliatory discharge claim,
    we have said it is an open question, under the Erie doctrine, whether Illinois or federal law
    applies. McCoy v. Maytag, 
    495 F.3d 515
    , 521 (7th Cir. 2007). However, we used the Illinois
    framework without discussion of the Erie question in Dotson v. BRP U.S. Inc., 
    520 F.3d 703
    (7th Cir. 2008); and Buzinski bases his claim solely on Illinois law, so we will apply state
    law.
    Buzinksi argues that Clark v. Owens-Brockway Glass Container, Inc., 
    697 N.E.2d 743
     (Ill. App. Ct. 1998), established a per se rule for recovery in workers’ compensation
    retaliatory discharge cases. This argument fails not only because he raises it for the first
    time on appeal, but also because Illinois courts have explicitly rejected a per se rule.
    See, e.g., Grabs v. Safeway, Inc., 
    917 N.E.2d 122
    . 124 (Ill. App. Ct. 2009).
    To succeed under Illinois law, Buzinski must show he was discharged in
    retaliation for his activities in violation of a clear mandate of public policy. McCoy, 
    495 F.3d at 520-521
    . Firing an employee for exercising workers’ compensation rights was first
    recognized as a violation of Illinois public policy over thirty years ago in Kelsay v. Motorola,
    Inc., 
    384 N.E. 353
    , 357 (Ill. Sup. Ct. 1978). There are three elements to a claim of retaliatory
    discharge in the workers’ compensation context. Buzinski must show (1) that he was the
    defendant’s employee before his injury; (2) that he exercised a right granted by the
    Workers’ Compensation Act; (3) and that his discharge was causally connected to filing a
    workers’ compensation claim. Dotson, 
    520 F.3d at 707
    . The first two prongs are not in
    dispute. The only question is whether Buzinski can prove causation. If American had a
    valid, non-pretextual basis for terminating employment, Buzinski cannot show causation
    and his claim fails. See McCoy, 
    495 F.3d at 521
     (7th Cir. 2007).
    Rules 16 and 34 of American Airlines Rules and Regulations—to which
    Buzinski was subject as an aircraft fueler—prohibit “misrepresentation of facts” and
    No. 09-2680                                                                         Page 4
    provide that “[d]ishonesty of any kind in relations with the company is . . . grounds for
    dismissal.” Buzinski told Shirley multiple times that he could not get to O’Hare for a
    hearing—either by driving himself or taking public transportation—and yet surveillance
    established that this was untrue. Buzinski admitted as much at the November 20 hearing.
    Because American had a valid, non-pretextual basis for terminating Buzinski’s
    employment, his claim fails.
    For these reasons we AFFIRM the district court’s grant of summary
    judgment.