The APL facility is covered by a collective bargaining agreement between APL and
Teamsters Local 781. Starzyk was a member of the union and in the bargaining unit. The
collective bargaining agreement contained provisions for seniority, health and welfare benefits, a
pension fund, a clause prohibiting discrimination because of race, creed, color, national origin,
sex or age in all matters affecting employment, and a mandatory grievance and arbitration
procedure. (Def. L.R. 56.1 § 8.)

Article II(C) of the collective bargaining agreement provides

In the event of a decrease or increase in the number of employees employed by the

Company, ‘in a particular classification,’ seniority on a company wide basis shall

be the governing factor and employees shall be laid off according to Company

wide seniority as defined in (A) above and shall be called back in the reverse

order in which they were laid off, provided the employees are qualified to perform

the work. In the event of a dispute involving seniority in layoff, before action is

taken by the company, there must be an agreement with the Union.

(Def. L.R. 56.1 4 9, emphasis added.) APL maintained seniority lists for bargaining unit
employees by classification and by company wide seniority. (/d.)

In April 2000 APL found it necessary to layoff six mechanics. (Def. L.R. 56.14 12.) The
reductions were conducted in accordance with the seniority provisions of the company’s
collective bargaining agreement. Employees slated for layoff in their work classifications were
able to use their company wide seniority to transfer into other classifications and displace less
senior employees (“bumping rights”). The shop employees with the lowest seniority were, in

ascending order, Elpidio Sema (Mexican', 45 years old), Chester Walton (“American,” 45 years

old), Mark Mucha (Polish, 26 years old), Paul Medeja (Polish, 26 years old), Starzyk, and Andy

'The parenthetical designations refer to ethnicity, not citizenship. By “American,” the court presumes a
reference to Northern European ethnicity.


DISCUSSION

A plaintiff may establish race discrimination under 42 U.S.C. § 1981 and age
discrimination under the ADEA through direct or indirect proof. Bennett v. Roberts, 295 F.3d
687, 694-95, 697-98 (7" Cir. 2002)(race); Huff v. UARCO, Inc., 122 F.3d 374, 379 (7° Cir.
1997)(age). Since there is no direct evidence of discrimination in this case, the court applies the
burden shifting method set out in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this method, the plaintiff bears the initial burden of producing evidence to sustain a prima
facie case of discrimination. If the plaintiff meets this burden, the employer must then produce a
legitimate, non-discriminatory reason for his action. If the employer offers a legitimate, non-
discriminatory reason, the burden shifts back to the plaintiff to present evidence that the
employer’s proffered reason is pretextual. Johnson v. Zema Systems Corp., 170 F.3d 734, 742
(7" Cir. 1999).

To establish a prima facie case, Starzyk must show that (1) he is a member of a protected
class; (2) he was qualified for the job in question or was meeting his employer’s legitimate
performance expectations; (3) he suffered an adverse employment action; and (4) he was treated
less favorably than similarly situated employees not in his protected class. Johnson, 170 F.3d at
742-43. It is unnecessary for the court to decide whether Polish is a race for the purposes of

section 1981.> Even assuming that Starzyk is a member of a protected class due to his Polish

3See Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223, 230 (7" Cir. 1995), relying on Saint
Francis College v. Alkhazraji, 481 U.S. 604 (1987). (The proper inquiry is not whether (in the instant case, Polish
people) are considered to be a separate race by today's standards, but whether, at the time § 1981 was adopted, they
constituted a group of people that Congress intended to protect.)


the party opposing summary judgment to submit a response to the moving party’s statement and
a statement of any additional facts that require the denial of summary judgment. Rule
56.1(b)(3)(B) states, “All material facts set forth in the statement required of the moving party
will be deemed admitted unless controverted by the statement of the opposing party.” APL has
filed its required statement of undisputed material facts. However, Starzyk has not filed a
response to APL’s statement nor a statement of additional facts. Thus, all material facts set out
in APL’s statement of undisputed facts are deemed admitted by Starzyk.

APL hired Starzyk in 1981. Starzyk left APL in 1986 to return to Poland. In November,
1993, Starzyk was rehired by APL where he worked until his termination in November 2000.
During both periods that Starzyk worked for APL, his supervisor was Jim Barry, who is part
Polish. APL was aware of Starzyk’s Polish heritage when it rehired him in 1993. (Def. L.R. 56.1
15.)

The APL facility where Starzyk worked has three distinct work classifications—the dock,
the shop, and the yard. Work on the dock involves receiving containers of freight. Work in the
shop involves maintaining and repairing APL containers and chassis. Work in the yard involves
driving forklifts and tractors as well as clerical work and other duties at the gate where trucks
enter the premises. (Def. L.R. 56.196.) At the gate, APL yard employees meet truck drivers and
discuss pick-ups and deliveries. The yard employee inspects the containers, completes
paperwork, and verifies information on the computer. Yard employees are trained for computer
work and are given an operating manual to read. (Def. L.R. 56.1 47.) From the time of his hire
until 2000, Starzyk was assigned to the shop as a mechanic. His work involved the repair of

trailers. (Def. L.R. 56.1 4 10.)



Mazur (Polish, 41 years old). (Def. L.R. 56.1 4 13.) Serna took severance and left the company.
Walton, Mucha, Medeja, and Mazur exercised their seniority and transferred to the yard. Starzyk
exercised his seniority and transferred to the dock. (Def. L.R. 56.1 414). As a result of these
seniority moves, two employees were laid off from the yard, and Kevin Knott (“American,” 29
years old) was laid off from the dock and replaced by Starzyk. (Def. LR. 56.1 9 15.)

In September 2000 another layoff occurred, this time on the dock. (Def. L.R. 56.1 4 16.)
Again, the reductions were conducted in accordance with the seniority provisions of the
company’s collective bargaining agreement. The dock employees with the lowest seniority were
Victor Torres (“American,” 27 years old), Frank Fuller “American,” 49 years old), and Starzyk.
Torres and Fuller used their overall seniority to transfer to the yard. Starzyk moved to a
temporary position in the shop that was open because another employee was on disability leave.
(Def. L.R. 56.1 917.)

At the time of the September 2000 layoff, Jim Barry and terminal manager Bill Hoole
discussed Starzyk’s ability to perform yard work if he desired to transfer to the yard. They
determined that Starzyk could not because the job required conversing with truck drivers who
came to the yard and also required paperwork and the use of a computer. They felt that the
ability to understand and converse in English was necessary, and Starzyk had demonstrated that
he lacked that ability.? It was not necessary to deny Starzyk bumping rights to the yard because

he did not exercise his bumping rights at that time. Barry believed Starzyk did not exercise his

?BEOC investigator Konrad Batog, who spoke Polish and took Starzyk’s evidence, visited the APL facility
and observed the work in the yard. His investigative report concludes that a functional knowledge of English is
required for the job and that Starzyk did not speak English well enough to work in the yard. (Def. L.R. 56.1 34.)

5


ancestry and his age, he cannot establish a prima facie case because he has not raised a genuine
issue of material fact regarding the second and fourth elements. The undisputed facts show that
Starzyk lacked the proficiency in English necessary to perform work in the yard. Thus, Starzyk
cannot establish that he was qualified for a job in the yard. Furthermore, the undisputed facts do
not show that Starzyk was treated less favorably than similarly situated employees not in his
protected class. Several substantially younger, non-Polish employees were terminated as a result
of APL’s reduction in force, while at least 29.4% of the bargaining unit employees that remained
were of Polish heritage (ten of thirty-four employees) and 20.6% were over fifty years old (seven
of thirty-four employees). Thus, Starzyk has failed to establish a prima facie case of race or age
discrimination.

Starzyk does not even mention the ADA claim in his response to APL’s motion for
summary judgment, but it is clear that he cannot establish a case of disability discrimination.
The undisputed facts show that APL did not know about Starzyk’s wife’s disability, that APL has
nothing to do with medical claims since they are handled by the Teamsters’ trust fund, and that
APL’s contribution to the trust fund is set by contract and is not related to the medical bills of its
employees. Thus, there is no evidence whatsoever that APL terminated Starzyk because of his
wife’s disability.

ORDER
Wherefore, for the reasons stated above, APL’s motion for summary judgment is granted

(#13). The clerk is instructed to enter judgment in favor of the defendant. This case is

terminated.
Enter: Neen v tA <p ery —
JOAN HUMPHREY LEFKOW
Dated: October 7, 2003 United States District Judge



‘Minute Order Form (06/97)

. L Ly United States District Court, Northern District of Minois
i?)

Name of Assiffned Judge Sitting Judge if Other
or Magistrate Judge Joan H. Lefkow than Assigned Judge
CASE NUMBER 02 C5177 DATE 10/7/2003
CASE Starzyk vs. American President Lines, Ltd.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(09) C1 © Filed motion of (use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) 0 Answer brief to motion due__ . Reply to answer brief due.
(4) a Ruling/Hearing on__set for at
(5) Q Status hearing[held/continued to] (set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) oO Trial{set for/re-set for] on at
(8) O —_, [Benel/Jury trial] [Hearing] held/continued to at
(9) CO  * This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (ClLocal Rule 41.1 CFRCP41(a)(1) CM FRCP41(a)(2).
ao) =o [Other docket entry]  Defendant’s motion for summary judgment [13-1] is granted. Judgment
entered in favor of the defendant. All future dates are stricken.
al) ff (For further detail sce order attached to the original minute order,]

No notices required, advised in open court.

No notices required.

X_ | Notices mailed by judge's staff.

Notificd counsel by telephone.

Docketing to mail notices.

XX | Mail AO 450 form. Mailed by MD.

Copy to judge/magistrate judge.

SHEN? @- log 69

bjs) pei

courtroom
MD deputy’s
initials

2

number of notices

Datedims tdceived in
central Clerk’s Office

CT 0.9 2n08
cam

mailing deputy initials

date docketed

10/7/2003

date malted notice

MD



bumping rights because he recognized that he lacked the proficiency in English required for work
in the yard. (Def. L.R. 56.1 J 18.)

In November 2000 another workforce reduction occurred, and Starzyk was terminated.
Although he did not specifically attempt to use his seniority to “bump” into the yard, he would
not have been permitted to because of his lack of proficiency in English. Also terminated was
Chester Walton (““American,” 45 years old), who was bumped from his yard job by a more senior
dock employee, and Richard Rubio (“American,” 33 years old), who was bumped from the yard
by a more senior shop employee. (Def. L.R. 56.1 21.) However, a substantial proportion of the
bargaining unit employees continued to work. At least 29.4% of the remaining bargaining unit
employees were of Polish heritage (ten of thirty-four employees) and 20.6% of the remaining
bargaining unit employees were over fifty years old (seven of thirty-four employees). (Def. L.R.
56.1 | 22, 23.) Starzyk did not file a grievance concerning any of the transfers or the
employment termination nor did any other employee file a grievance following the layoffs in
2000. Def. L.R. 56.1 424.) Subsequent to his termination, Starzyk accepted $500 in severance
pay. (Def. L.R. 56.1 925.)

Starzyk’s wife has a severe case of rheumatism and an arthritic-like condition, which
began in 1997 or 1998. In 1999, she began incurring large medical bills that were covered by the
Teamsters’ insurance fund. (Def. L.R. 56.1 § 26.) APL contributes an amount set by the
collective bargaining agreement to the union’s health insurance trust fund. The contribution is
not affected by the amount of the claims, and the company has no responsibility to administer the
trust fund. (Def. L.R. 56.1 § 28.) APL was unaware of Starzyk’s wife’s condition or the medical

bills. (Def. L.R. 56.1 29.)



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

OCT 0.9 2003
MIESZYSLAW STARZYK,

Plaintiff,

No. 02 C 5177
Judge Joan H. Lefkow

v.

AMERICAN PRESIDENT LINES, LTD.,

ed

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Mieszyslaw Starzyk (“Starzyk’”), a sixty year old American citizen who was born
and raised in Poland, filed an amended complaint against his former employer, American
President Lines, Ltd. (“APL”), alleging that APL terminated Starzyk on account of his age and
race (Polish) in violation of the Age Discrimination Employment Act(“ADEA”), 29 U.S.C.

§§ 621 et seq., and Title 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Starzyk also
alleges that APL terminated him on account of his wife’s disability in violation of the Americans
With Disabilities Act, 42 U.S.C. § 12101 et seg. Starzyk filed charges with the United States
Equal Opportunity Employment Commission (“EEOC”) on or about April 4, 2002. The EEOC
issued a Notice of Right to Sue which Starzyk received on June 17, 2002. Starzyk filed this suit
on July 23, 2003. Before this court is APL’s motion for summary judgment pursuant to Rule
56(c) of the Federal Rules of Civil Procedure. The court has jurisdiction over the claims
pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), 29 U.S.C. § 626, and 42 U.S.C. §§ 1981 and

12117. For the reasons set forth below, the court grants the motion.

2



SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed. R. Civ. P. 56(c) Advisory Committee’s notes. The
party seeking summary judgment bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Id. at 324;
Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7" Cir. 2000). A material fact must be outcome
determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention
that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp.,
200 F.3d 485, 492 (7" Cir. 2000), the court must construe all facts in a light most favorable to the
non-moving party as well as view all reasonable inferences in that party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must apply the summary judgment
standard with “added rigor” in employment discrimination cases, where intent is the central
issue. Kralman v. Illinois Dept. of Veterans’ Affairs, 23 F.3d 150, 152 (7" Cir. 1994).

FACTS

Local Rule 56.1(a)(3) requires the party moving for summary judgment to submit a

statement of material facts as to which the moving party contends there is no genuine issue and

that entitle the moving party to judgment as a matter of law. Local Rule 56. 1(b)(3)(A-B) requires