Joseph R. Buzinski v. American Airlines, Incorporated

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,
Plaintiff-Appellant,
v.
AMERICAN AIRLINES,
INCORPORATED,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District
of Illinois, Eastern Division.
No. 1:08-cv-03966
Suzanne B. Conlon,
Judge.
O R D E R
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.
NONPRECEDENTIAL DISPOSTION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09-2680 Page 2
Buzinski argues that American had already fired him on November 5. In support, he refers1
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.
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. Buzinski filed a claim for workers’ compensation benefits about a month after1
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

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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

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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.

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