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Jovanovic v. In-Sink-Erator

United States Court of Appeals for the Seventh Circuit

May 18, 1999, Argued ; January 7, 2000, Decided

No. 98-3726


 [*895]  COFFEY, Circuit Judge. The plaintiff-appellant, Dan Jovanovic, brought this action against the defendant-appellee, In-Sink-Erator Division of Emerson Electric Company ("ISE") of Racine, Wisconsin, alleging a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12111, et seq., when ISE, according to Jovanovic, terminated his employment because he was suffering from asthma and Barrett's esophagus. 1 The trial court ordered that the materials Jovanovic submitted in response to the summary judgment motion be stricken from the record because Jovanovic failed to file a timely response to ISE's motion for summary judgment. The judge then granted ISE's motion for summary judgment. We affirm.

 [**2]  I. BACKGROUND 

Jovanovic began working at ISE, a manufacturer of garbage disposals and hot water dispensers, on February 13, 1984, as a tool and die maker. Tool and die makers at ISE's Racine facility have the responsibility to respond to maintenance and repair needs for equipment throughout the plant. As the district court noted, "it is 'their job to keep the plant running.' . . . Tool and die makers possess technical skills which are specific to their job. . . . Few of these skilled workers are employed in the plant, and if absent they are not easy to replace." During the time that Jovanovic was employed, ISE had an attendance policy which stated that an employee would be considered "excessively absent" if that employee was absent at a rate one full percentage point greater than the plant absentee average, provided that such absence rate exceeded seven days in a twelve-month period. 2 Jovanovic received his first warning regarding his erratic attendance on September 27, 1985. ISE thereafter warned Jovanovic on December 15, 1986, September 25, 1991, November 11, 1991, May 19, 1992, January 18, 1993, 3 and March 25, 1993. 4 On March 30, 1993, Jovanovic reported late to work and [**3]  ISE terminated his employment.

After his termination, Jovanovic filed this suit alleging that ISE discharged him  [*896]  because of his disability in violation of the ADA. Shortly after the case was assigned, the trial judge entered a scheduling order establishing discovery and filing deadlines. [**4]  On March 12, 1997, Jovanovic's counsel informed the court that he was in the process of gaining admission to the Eastern District of Wisconsin (he claimed he needed a certification of good faith from the Illinois Supreme Court) and requested that discovery be extended until May 31, 1997, and the deadline for dispositive motions be extended to June 15, 1997. On April 23, 1997, Jovanovic's counsel informed the district court that he had filed the necessary papers for admission and was awaiting a response. Satisfied that Jovanovic's counsel had moved for admission, the court granted Jovanovic's motion to amend the scheduling order on April 24, 1997.

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201 F.3d 894 *; 2000 U.S. App. LEXIS 140 **; 10 Am. Disabilities Cas. (BNA) 193


Subsequent History:  [**1]  Counsel Amended January 28, 2000.

Prior History: Appeal from the United States District Court for the Eastern District of Wisconsin. No. 96 C 481. Rudolph T. Randa, Judge.

Disposition: AFFIRMED.


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Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Judicial Officers, Judges, Discretionary Powers, De Novo Review, Summary Judgment Review, General Overview, Standards of Review, Summary Judgment, Entitlement as Matter of Law, Trials, Judgment as Matter of Law