AO 450(Rev. 5/85\udgment in a Civil Case

United States District Court
Northern District of Illinois

Eastern Division

Nese JUDGMENT IN A CIVIL CASE
v. Case Number: 02 C 5839

Nordic Construction Services, Inc., et.
al,

im] Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict,

| Decision by Court, This action came to hearing before the Court. The issues have
been heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that for the reasons stated in the Court’s
memorandum opinion and order of 5/25/04, defendants’ motion for summary judgment is
granted.

Michael W. Dobbins, Clerk of Court

MELANIE
Date: 5/25/2004 FOSTER

Melanie A. Foster, Deputy Clerk



sources — work completed in Nese’s accountant’s home and subcontracting work from Julian’s fire
damage restoration company. (Id.,4731). Prior to Nese’s accepting employment with Nordic, Julian
told Nese that he would have to relinquish his seat in the Lodge once he accepted employment with
Nordic. (Plaint.’s 56.1(b)(3) Statement 4 11).

After obtaining employment with Nordic in August 2000, Nese decided not to renew his
membership in the Chamber of Commerce. He made this decision because he was working for
Nordic and did not want to spend $280 for the membership. (Def.’s 56.1(a)(3) Statement {| 33).
Nese also decided that he did not need to generate business from the Lodge because he now worked
for Nordic. Within a few weeks of starting his employment with Nordic, Nese gave up his
membership in the Lodge. (Id., 134). With Nese’s consent, Julian took Nese’s place in the Lodge.
(Id., 135).

In 1998 or 1999, Julian first offered Nese a job with Nordic. Nese did not accept the
position. (Def.’s 56.1(a)(3) Statement J 36). In August 2000, Julian again wanted to hire Nese for
a job with Nordic. At that time, Nese informed Julian that he was unable to drive to work because
he did not have a driver’s license because he had epilepsy. Nese’s inability to drive was a factor in
his search for employees for L & N. When Nese told Julian that he had epilepsy, Julian’s response
indicated that he did not consider such to be a factor in Nese’s employment, Subsequently, Julian
hired Nese and provided another employee to drive Nese until Nese was able to obtain his driver’s
license. (Id.,]38). At the time Julian offered Nese a job, Julian told Nese that the offer would allow
Nese to work with a team, take pressure off of Nese in terms of finding work, and provide Nese with

benefits. (Id., ] 39). Because Nese was only doing subcontracting work for Nordic and Nese was


Nese contends that he is disabled under 42 U.S.C. § 12102(2)(C) because Nordic regarded
him as having a disability that substantially limited the major life activity of working.

It is not enough for Nese to show that Nordic was aware of his impairment; instead, Nese
must show that Nordic knew of the impairment and believed that he was substantially limited
because of it. See Skorup, 153 F.3d at 515. Accordingly, Nese must show that Nordic believed he
was unable to work a particular class or broad range of jobs. See Moore v. J.B. Hunt Transport,
Ine., 221 F.3d 944, 955 n. 7 (7th Cir. 2000) (Moore); Skorup, 153 F.3d at 515,

Nese makes the conclusory statement that there is sufficient evidence from which a
reasonable fact-finder could conclude that Nordic believed that Nese’s condition would exclude him
from a broad range of jobs. However, the only evidence that Nese provides to support his conclusion
is that of pretext -- the alleged alteration of two documents to indicate that Nese worked too slowly.
However, evidence that Nordic may have been less than forthcoming in identifying the reason for
his termination does not establish a disability; instead, it may provide proof of a discriminatory
motive once Nese has established that he falls within the ADA’s protection. See Moore, 221 F.3d
at 955 n. 7; Rakity v. Dillon Co., 302 F.3d 1152, 1165 (10th Cir. 2002) (rejecting argument that issue
of pretext and the issue of “regarded as” should be treated as one and the same), Nese fails to point
to any evidence that Nordic perceived him as impaired in performing a broad range of jobs in various
classes. Instead, all of the evidence demonstrates that Nese worked in construction prior to his
tenure with Nordic, while at Nordic, and following his termination at Nordic. Furthermore, the only
issue Nordic had with Nese’s job performance was the pace of his work. Nordic had the same issue

with other employees and told other employees to pick up the pace of their work See Moore, 221

F.3d at 949, 955 (affirming summary judgment after District Court found, in part, that plaintiff's



whether he altered the form the year following the March 12, 2001 date that he originally completed
and signed the form. (Id., {] 48).

Nordic believed that Nese’s pace was deficient, and Nordic personnel had numerous concems
and conversations regarding Nese’s work pace. (Def.'s 56.1(a)(3) Statement J 54). Nese believed
that his work “may not have been exactly” like other workers, but it “was comparable.” (Nese Dep.
p. 145). During his employment, Nese’s supervisor, Gary Boerma, asked Nese, as well as other
workers, to pick up his pace, (Def.’s 56,1(a)(3) Statement {{] 56-57). Of three instances in which
Boerma asked Nese to pick up his pace, one was a general address to all employees; and two were
to Nese personally. (Id.,4]59). Nese believed that he was made the scapegoat for cost overruns and
the length of time it took to complete projects because everyone around Boerma was either family
or had been around for years. (Id., | 64). Nese also believes that Julian asked him twice, following
his decrease in pay, whether the medications Nese took affected his ability to perform his job.
(Plaint.’s 56.1(b)(3) Statement { 24). Julian denies ever having asked Nese about his medications
and his ability to perform his job. (Julian’s Dep. pp. 80-81).

On September 27, 2001, a performance evaluation was completed by Boerma. Following
the completion of the evaluation, a meeting was held. At the meeting, Nese was shown a copy of
the evaluation; at which time, there was no whiteout on page four of the evaluation. (Plaint.’s
56.1(b)(3) Statement { 26). Boerma denies that the whiteout did not exist at the time of the
evaluation, and the whiteout was used to change a comment that another Nordic employee did not
feel was professional. (Def.’s Resp. to Plaint,’s 56.1(b)(3) Statement 4 26). Nese believes that he
requested a copy of his performance evaluation and that the request was denied. Nordic denies that

Nese requested a copy of the evaluation. (1d., ] 28). Nese’s performance score for his evaluation


having a difficult time finding employees, Nese accepted a position with Nordic. (Id., 941). Julian
also told Nese that Nese would no longer have to worry about having a job. (Plaint.’s 56.1(b)(3)
Statement { 17).

Nordic hired Nese as a carpenter on August 31, 2000, at the rate of $22.50 per hour. (Def.’s
56.1(a)(3) Statement {| 43). When Nese joined Nordic, Julian informed him that he would have a
90-day trial period to see if Julian wanted to retain him at Nordic, (Id., 46).

Asa carpenter for Nordic, Nese gutted out fire-damaged rooms in homes and remodeled such
areas. He performed rough and finish carpentry work, including putting up drywall, replacing
windows, putting in trim, and putting in cabinets. (Def.’s 56.1(a)(3) Statement { 48). Nese also did
roofing work. (Id., 149).

Effective February 28, 2001, Nese’s hourly rate was reduced to $18.00 per hour. (Def.’s
56.1(a)(3) Statement |] 50). Nese’s wage was changed because his work pace was not up to the
standards of his peers. (Id., ]51). Nese believes that Julian told him his wage was reduced because
other workers were making less than Nese and that it was causing a problem. (Id., 52). Prior to
his reduction in pay, Nese’s supervisor, Gary Boerma, never commented to or made complaints to
Nese regarding deficiencies in Nese’s productivity. (Plaint.’s 56.1(b)(3) Statement 4 18), Boerma
testified that he did speak to Nese on multiple occasions concerning problems with Nese’s work.
(Boerma’s Dep. pp. 45-46, 54-59). When Nese’s hourly rate was decreased to $18.00 per hour,
Julian completed an Employee Status Change form, which did not contain any comments relating
to the pace of Nese’s work. (Plaint.’s 56.1(b)(3) Statement J 46). At some time, the form was

amended; and the comment “Work pace is not to standards of peers” was added. Julian is unsure


ANALYSIS

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)
(Celotex). All the evidence and the reasonable inferences that may be drawn from the evidence are
viewed in the light most favorable to the nonmovant. Miller v. American Family Mutual Ins. Co.,
203 F.3d 997, 1003 (7th Cir. 2000). Summary judgment may be granted when no “reasonable jury
could return a verdict for the nonmoving patty.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248
(1986) (Anderson). However, a party cannot defeat summary judgment by relying on
unsubstantiated facts. See Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th
Cir. 2001).

Count 1

Defendant argues that Nese’s ADA claim fails because he is not “disabled” as defined by the
ADA.

The ADA prohibits employment discrimination against disabled individuals. 42 U.S.C. §
12112(a); Schneiker v, Fortis Ins. Co., 200 F.3d 1055, 1059 (7th Cir. 2000). Under the ADA, an
individual is disabled if he (a) has “a physical or mental impairment that substantially limits one or
more . . . major life activities”; (b) has “a record of such an impairment”; or (c) is “regarded as
having such an impairment.” 42 U.S.C. § 12102(2). [fan individual’s condition does not rise to the
level of a disability, the individual cannot recover under the ADA even if the employer terminated

the individual on the account of the account. See Skorup v. Modern Door Corp., 153 F.3d 512, 514

(7th Cir. 1998) (Skorup).



Minute Order Form (06/97)
1

ie 7 United States District Court, Northern District of Hlinois
oy
name of Ase ee John W. Darrah sing ue rat
CASE NUMBER 02 C 5839 DATE 5/25/2004
CASE Nese vs. Nordic Construction Services, Inc., et. al.
TITLE

{In the following box (a) indicate the party tiling the motion, c-g., plaintiff, defendant, 3¢d party plaintiff, and (b) state briefly the nature

f tion being, .
MOTION: of the motion being presented. |

DOCKET ENTRY:

qy QO Filed motion of [ use listing in “Motion” box above.]

(2) Q Brief in support of motion duc

Q) a Answer brief to motion duc_____. Reply to answer bricfdue__

(4) o Ruling/Hearing on _, JSetfor at.

(3) im Status hearing[held/continued to] [sct for/re-set for]on___—ssetfor at.

(6) g Pretrial conference{held/continued to] [set for/re-sct for]on set for_ at

(7) go Trial[sct for/re-set forJon____—sat__

(8) a (Bench/Jury trial) [Hearing] held/continued to at

(9) o This case is dismissed (with/without] prejudice and without costs(by/agreement/pursuant to]

OOPRCP4(m) ClLocal Rule 41.1 CUFRCP41(a\(1) 2 FRCP41(a)(2).

ao) «off [Other docket entry] Status hearing held. For the reasons stated in the attached memorandum
opinion and order, defendants’ motion for summary judgment is granted. Enter Memorandum Opinion
and Order.

ai) @ [For further detail see order attached to the original minute order, |

No notices required, advised in open court,

No notices required, umber of notices

Notices mailed by judge’s staff, MAY 2 6 2084

Notified counsel by telephone. date ducketad.

Docketing to majl notices.

oo | Mail AO 450 form, docketing deputy inte

Copy to judge/magistrate judge.

courtroom cy
MF deputy's
initials

Date/time received in

contral Clerk’s Office ruillag deputy initials



Here, Nese fails to identify any false statement or representation by Julian. Instead, Nese
contends that genuine issues of material fact exist as to whether there was a scheme to have him
relinquish his seat on the Lodge. However, Nese knew before accepting employment with Nordic
that he would have to give up his seat in the Lodge; and Nese fails to identify any false statement or
representation by anyone to induce him to accept employment with Nordic and relinquish his scat
in the Lodge. Without any false statement or representation, there cannot be fraud. See Houben, 231
F.3d at 1074. Furthermore, Nese has failed to identify any evidence of any “specific, objective
manifestations of fraudulent intent.” See Bower, 978 F.2d at 1012 (plaintiff’s fraud claim failed
because plaintiff failed to prove that the defendants made a promise never intending to keep it).

Accordingly, his fraud claim fails.

For the reasons stated above, Defendants’ Motion for Summary Judgment is granted.

pas: Yate 25 2009

United States District Judge

11



ability to walk, sit and stand, but at a slower pace, did not render the plaintiff disabled). Therefore,
Nese has failed to establish that he is disabled under the ADA; and his ADA claim fails.
Count TI

Nese concedes that his Rehabilitation Act claim fails because he is not a federal employee
alleging disability discrimination in federal government or in a program that receives federal
financial assistance as required by the Act. See 29 U.S.C. §§ 791, 794; Mays v. Principi, 301 F.3d
866, 868 (7th Cir. 2002).

Count TI

Lastly, Nordic argues that Nese’s fraud claim fails. Nese argues that genuine issues of fact
exist as to whether Julian offered Nese a position of employment as part of a scheme to induce Nese
to relinquish his seat in the Lodge.

In order to prove fraud under Illinois law, Nese must establish: that (1) the defendant made
a false statement; (2) of material fact; (3) which defendant knew or believed to be false; (4) with the
intent to induce Nese to act; (5) Nese justifiably relied on the statement; and (6) Nese suffered
damages from such reliance. See Houben v. Telular Corp., 231 F.3d 1066, 1074 (7th Cir, 2000)
(Houben). “Promissory fraud” is a false representation of intent conceming future conduct, ie, a
promise to perform a contract when there is no actual intent to do so. As a general rule, promissory
fraud is not actionable unless the promise is part of a “scheme” to defraud. See Houben, 231 F.3d
at 1074. Furthermore, “‘[w]ithout specific, objective manifestations of fraudulent intent, there can
be no promissory fraud.” Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir. 1992) (internal quotations

omitted).


was 32 points out of 60, 2 points greater than the minimum score of 30 for “satisfactory.” (Plaint.’s
56.1(b)(3) Statement 36).

On October 10, 2001, shortly after Nese had completed his first year of employment with
Nordic, Julian increased Nese’s hourly rate of pay from $18.00 per hour to $18.50 per hour.
(Plaint.’s 56.1(b)(3) Statement f 40).

On November 5, 2001, Nordic received a letter from a legal advocacy group acting on Nese’s
behalf wherein the legal advocate accused Nordic of possible discriminatory acts relating to their
treatment of Nese. Prior to this letter, Nese’s personnel file contained only two references relating
to the pace of his work: (1) the March 12, 2001 Employee Status Change form and (2) the
September 27, 2001 performance evaluation. (Plaint.’s 56.1(b)(3) Statement { 33).

On January 9, 2002, Nese was transferred to the insurance repair work side of Nordic’s
business, On that date, Julian signed an Employee Status Change form that documented Nese’s
transfer. In the remarks section, Julian wrote, “Pace of work is still a problem — smaller jobs will
be better suited to gauge pace.” At the time Julian completed the form, Julian claims he was
unaware that Nese was investigating the possibility of a discrimination suit. (Plaint.’s 56.1(b)(3)
Statement J 43). On January 18, 2002, Nese was placed on temporary lay-off due to lack of work.
(Def.’s 56.1(a)(3) Statement 66). On or about October 17, 2002, Nese felt that Julian and Boerma
fired him because they did not think that Nese knew what he was doing. (Id., J 68).

Between October 2003 and April or May 2003, Nese worked fixing up a home, (Def.’s
56.1(a)(3) Statement fj 69). Since that time, Nese has worked with One Stop Construction. (Id.,
70). Nese has been able to perform his construction job without asking for an accommodation.

(Id.,a 71). Nese is not limited in his ability to work, and he admits that he can work. (Id., 74).



Prior to starting employment with Nordic, Nese was a member of the Downers Grove

Chamber of Commerce and a member of a business-networking group called the Lodge. Only one
construction contractor was allowed to be a member in the Lodge. (Def.’s 56.1(a)(3) Statement
24), Nese’s membership in the Lodge was as the construction contractor. (Plaint.’s 56.1(b)(3)
Statement qj 5). Prior to August 31, 2000, Tom Julian, Nordic’s owner and president, was also a
member of the Lodge. At that time, Julian did not participate in the Lodge as a construction
contractor, (Def.’s 56.1(a)(3) Statement § 25). Julian was instrumental in Nese’s joining the
Chamber of Commerce and the Lodge, (Id., 30). Julian told Nese that he wanted Nese’s seat on
the Lodge as the construction contractor. Nese told Julian that everyone in the Lodge knew Nese
and asked Julian if he could remain in the Lodge and attend the meetings on behalf of Nordic.
(Plaint.’s 56.1(a)(3) Statement 6). Julian’s membership in the Lodge was for a cleaning service
that Julian owned. (Id., 7)

The Lodge is a group of 20 to 25 members from different businesses who get together to give
each other leads for new business opportunities, The group meets once a week. (Def.’s 56.1(a)(3)
Statement 27). To join the Lodge, the potential new member must get a current member to bring,
in the new member. It costs $75 per month to be in the Lodge. (Id., 28). The Lodge only allows
one member per business category. Julian was the founder of the Lodge. (Plaint.’s 56.1(b)(3)
Statement 4 9),

Between 1998 and 2000, Nese and Julian were friends and had a business relationship in
which they assisted each other in generating business. (Def.’s 56.1(a)(3) Statement 429). From the
time that Nese joined the Lodge until his termination from Nordic, Nese earned between $8,000 and

$12, 000 from business generated from activities with the Lodge. This business came from two


AO 450(Rev. 5/85Mudgment in u Civil Case

United States District Court
Northern District of Illinois

Eastern Division

Nese JUDGMENT IN A CIVIL CASE
v. Case Number: 02 C 5839

Nordic Construction Services, Inc., et.

al.

Oo Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

| Decision by Court. This action came to hearing before the Court. The issues have
been heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that for the reasons stated in the Court’s
memorandum opinion and order of 5/25/04, defendants’ motion for summary judgment is
granted,

Michael W. Dobbins, Clerk of Court

MELANIE FOSTER
Date: 5/25/2004

Melanie A. Foster, Deputy Clerk



Nese isa forty-three-year-old male who began having seizures when he was fifteen years old.
(Def.’s 56.1(a)(3) Statement {ff 4, 7). Because of his seizures, Nese has taken presotiption
medication for approximately twenty-seven ycars. (Id., | 8). Nese does not experience any side
effects from his medications. (Id., 4] 14), Prior to his work with Nordic, Nese worked as a carpenter
for various employers, including Handy Andy and Builders Square. (Id., | 10), Nese did not have
any seizures during his employment with Nordic. (Id., 411).

From approximately 1991 to 1998, Nesc was on disability and unable to work in any capacity
due to constant seizures relating to his condition of epilepsy. (Plaint,’s 56.1(b)(3) Statement [ 2).
In approximately 1997, Nese came off of social security disability. Since that time, Nese’s seizure
disorder has not affected his ability to work or his quality of work. (Def.’s 56.1(a)(3) Statement bal
12-13),

After coming off of social security disability, Nese worked for his own construction
company, L & N Builders (“L & N”). L & N became incorporated in approximately 1998. L & N
did remodeling jobs. (Def.’s 56,1(a)(3) Statement 4j 15). From 1997 until Nese began working for
Nordic, Nese did not work for anyone except L & N. (Id., 16). At times, L & N lost money. (Id.,
417). In the year prior to accepting employment with Nordic, Nese was the only employee of
L&N. Nese could not find employees to stay and work for L & N even though he had advertised
for employees in newspapers. (Id., 418). At one point, Nese had to turn away $40,000 in business
because he did not have any employees. (Id., { 19). In August 2000, when Nordic offered Nese a
job, Nordic had given Nese a number of subcontracting jobs. (Id.,{{ 20). After Nesc joined Nordic,
he did not intend to keep L & N as a viable corporation. (Id., ] 21). Nordic never asked Nese to

make certain that L & N was no longer viable. (Id., § 22).


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LOUIS V. NESE, )
)
Plaintiff, ) No. 02 C 5839
)
v. y Judge John W, Darrah
)
NORDIC CONSTRUCTION SERVICES, INC. and )
ADMINISTAFF, INC., ) ayn
) goth
Defendants. ) “inde
wr

MEMORANDUM OPINION AND ORDER

Plaintiff, Louis V. Nese, filed a suit against Defendants, Nordic Contrsuction Services, Inc.
and Administaff, Inc., alleging: ({) that Nordic violated the American with Disabilities Act (“ADA”)
by reducing Plaintiff's wages and terminating Plaintiff because he had epilepsy and that Administaff
assisted, after the fact, in creating a non-discriminatory explanation for Nordic’s actions (Count 1);
(2) that those actions allegedly taken by the Defendants also violated the Rehabilitation Act (Count
Tl); and (3) that Nordic fraudulently induced Plaintiff into relinquishing his involvement with the
Downers Grove Chamber of Commerce and the “Lodge” (Count IL). Presently before the Court is
Defendants’ Motion for Summary Judgment,

BACKGROUND

Defendant, Julian & Nordic Industries, Inc. (“Nordic”), incorrectly identified as Nordic
Construction Services, Inc., is a general contractor in the business of providing commercial and
residential general contractor services, as well as fire and water damage restoration services. (Def.’s
56.1(a)(3) Statement 41). Administaff Companies II, L.P. (“Administaff”) is a professional

personnel management services company. (Id., f 2).


AO 450(Rey, 5/85. Judgment in a Civil Case

United States District Court
Northern District of Illinois

Eastern Division

Nese JUDGMENT IN A CIVIL CASE
v. Case Number: 02 C 5839

Nordic Construction Services, Inc., et.
al.

i] Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

| Decision by Court. This action came to hearing before the Court. The issues have
been heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that for the reasons stated in the Court’s
memorandum opinion and order of 5/25/04, defendants’ motion for summary judgment is
granted.

Michael W{ Dobbins, Clerk of Court

Date: 5/25/2004 Socal 4ol—

Melanie’A. Foster, Deputy Clerk



AO 450(Rev. 5/8$)Judgment in u Ciyil Case

United States District Court

Northern District of Illinois
Eastern Division

Nese JUDGMENT IN A CIVIL CASE
v. Case Number: 02 C 5839

Nordic Construction Services, Inc., ct.
al.

C Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

a Decision by Court. This action came to hearing before the Court. The issues have
been heard and a decision has been rendered,

IT IS HEREBY ORDERED AND ADJUDGED that for the reasons stated in the Court’s
memorandum opinion and order of 5/25/04, defendants’ motion for summary judgment is

granted.

Michael W. Dobbins, Clerk of Court

MELANIE FOSTER
Date: 5/25/2004

Melanie A. Foster, Deputy Clerk