Brodzik v. Contractors Steel Inc et al

Filing 61

OPINION AND ORDER denying defendants 37 Motion for Partial Summary Judgment as well as Mr. Brodziks request for summary judgment. Signed by Judge Jon E DeGuilio on 8/7/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THOMAS BRODZIK,
Plaintiff,
v.
CONTRACTORS STEEL CO. and
MARTY HAENDIGES,
Defendants.

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Case No. 2:13-CV-438 JD

OPINION AND ORDER
After being told by his employer that he was eligible and approved for leave under the
Family and Medical Leave Act, Thomas Brodzik took a six-week leave of absence to undergo
abdominal surgery. Upon his return, he was informed that he was being moved to a different
position, and when Mr. Brodzik questioned the change, his supervisor became irate and
threatening, so Mr. Brodzik left and did not return. He then filed this action, asserting claims
under the FMLA, a claim for promissory estoppel under state law, and a claim under the Age
Discrimination in Employment Act. Discovery is ongoing, but the defendants filed a preliminary
motion for summary judgment on the FMLA claims, contending that Mr. Brodzik was not
eligible for leave under the FMLA because he did not work at a site that had at least 50
employees within a 75 mile radius. Mr. Brodzik responded in opposition to that motion, and his
response brief also sought summary judgment in his favor on the FMLA and promissory estoppel
claims. For the following reasons, both parties’ motions are denied.
I. FACTUAL BACKGROUND
Plaintiff Thomas Brodzik began working with Defendant Contractors Steel Company in
an outside sales position on September 12, 2010. [DE 41-1 p. 1]. On May 21, 2012, he applied

for FMLA leave so that he could undergo hernia surgery due to severe abdominal pain. [Id.] He
filled out a form that was given to him by Contractors entitled “Application for Family or
Medical Leave,” in which he requested leave from July 16 to August 13, 2012. [Id. p. 3]. In
response, Contractors gave him a form it had completed entitled “Notice of Eligibility and Rights
& Responsibilities (Family and Medical Leave Act),” dated May 21, 2012. [Id. p. 4]. The
document informed Mr. Brodzik that he was eligible for FMLA leave, and it notified him of his
rights and responsibilities for taking FMLA leave. On June 26, 2012, Contractors provided Mr.
Brodzik with a “Designation Notice” that informed him that his FMLA leave request was
approved, and that his leave would be designated as FMLA leave. [Id. p. 9]. Another Designation
Notice, dated August 15, 2012, extended Mr. Brodzik’s FMLA leave through August 26, 2012,
and again stated that his FMLA leave request was approved. [Id. p. 10].
Mr. Brodzik was on leave for about six weeks, and returned to work on August 27, 2012.
Upon his return, however, he was informed by Defendant Marty Haendiges, his supervisor, that
he would be moved to an inside sales position instead of returning to his prior outside sales
position. [DE 41-1 p. 1]. Mr. Brodzik believed that these positions were not equivalent, in that he
would have to be trained in new equipment and procedures, and the new position would not
involve field work or calling on clients in person and thus allowed fewer commission
opportunities. When he expressed these concerns to Mr. Haendiges, Mr. Haendiges “went into a
long rage, became threatening, very angry and told [Mr. Brodzik] that [Mr. Brodzik] had to leave
before he would ‘kill somebody.’” [DE 41-1 p. 2]. Mr. Brodzik states that this caused him to fear
for his life, and that his working conditions were so intolerable that he felt he could not return to
his position. Accordingly, he left the premises and did not return to his employment.

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Mr. Brodzik then filed this action. He contends that the inside sales position he was
assigned to upon his return from leave was not equivalent to his prior position, and that Mr.
Haendiges’ conduct was so threatening and abusive that he was constructively discharged from
his employment. His amended complaint raises four theories of recovery as to those two alleged
adverse actions. Count 1 asserts that the defendants interfered with Mr. Brodzik’s rights under
the FMLA in both of those respects, and Count 2 asserts that the defendants retaliated against
him for exercising his FMLA rights. Count 3 is a promissory estoppel claim under state law,
asserting that even if Mr. Brodzik did not qualify as an eligible employee under the FMLA so as
to be protected under that statute, he relied on the defendants’ representations regarding his
entitlement to FMLA leave, and should be able to enforce those rights as a quasi-contractual
matter. Finally, Count 4 asserts that the defendants discriminated against Mr. Brodzik based on
his age, in violation of the Age Discrimination in Employment Act.1 All four claims are against
both Contractors and Mr. Haendiges.
II. STANDARD OF REVIEW
On summary judgment, the moving party bears the burden of demonstrating that there “is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A “material” fact is one identified by the substantive law as
affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
“genuine issue” exists with respect to any material fact when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual record

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There is no allegation or evidence in the record that Mr. Brodzik filed a charge of age
discrimination with the EEOC prior to this suit, but since that is not a jurisdictional requirement,
the Court need not raise that matter on its own motion. Miller v. Am. Airlines, Inc., 525 F.3d 520,
525 (7th Cir. 2008) (“A plaintiff generally cannot bring a claim in an ADEA lawsuit that was not
alleged in the EEOC charge, and, while not a jurisdictional requirement, it is a prerequisite with
which a plaintiff must comply before filing suit.”).
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taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391
U.S. 253, 289 (1968)).
In determining whether a genuine issue of material fact exists, this Court must construe
all facts in the light most favorable to the non-moving party and draw all reasonable and
justifiable inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008);
King v. Preferred Technical Grp., 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving
party cannot simply rest on the allegations or denials contained in its pleadings, but must present
sufficient evidence to show the existence of each element of its case on which it will bear the
burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Robin v. Espo Eng’g
Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). Finally, the fact that the parties have cross-filed for
summary judgment does not change the standard of review; cross-motions are treated separately
under the standards applicable to each. McKinney v. Cadleway Properties, Inc., 548 F.3d 496,
504 n.4 (7th Cir. 2008).
III. DISCUSSION
The defendants seek summary judgment on Mr. Brodzik’s claims under the FMLA,
asserting that he is not an “eligible employee” as defined by the FMLA and thus cannot maintain
an action under that statute. Mr. Brodzik responded in opposition to that motion, contending that
he was an eligible employee, or, in the alternative, that the defendants should be equitably
estopped from denying his eligibility. In his response brief, Mr. Brodzik also requested summary
judgment in his favor on his FMLA interference and retaliation claims and his promissory
estoppel claim. The Court addresses the parties’ respective requests separately.

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A.

The Defendant’s Motion for Summary Judgment
In their motion for summary judgment, the defendants assert that Mr. Brodzik cannot

prevail on his claims under the FMLA because he was not an “eligible employee,” and thus had
no rights protected by that statute. The FMLA extends certain rights to “eligible employees.” 29
U.S.C. § 2612(a). In order to qualify as an eligible employee—and thus to be able to assert a
claim for a violation of those rights—an employee must meet certain criteria. Specifically, the
employee must have been employed with their current employer for at least 12 months, and have
worked at least 1,250 hours in the previous 12-month period. Id. § 2611(2)(A). However, as
relevant here, “[t]he term ‘eligible employee’ does not include . . . any employee of an employer
who is employed at a worksite at which such employer employs less than 50 employees if the
total number of employees employed by that employer within 75 miles of that worksite is less
than 50.” Id. § 2611(2)(B)(ii). The number of employees is determined as of the date the
employee gives notice of the need for leave. 29 C.F.R. § 825.110(e).
The defendants do not dispute that Mr. Brodzik worked for the requisite time period and
number of hours. However, they insist that Contractors did not employ fifty or more people
within 75 miles of Mr. Brodzik’s worksite. Specifically, they assert that at the time Mr. Brodzik
gave notice of his intent to request leave on May 21, 2012, Contractors employed only 31
employees at their East Chicago, Indiana location, where Mr. Brodzik worked. They also assert
that none of their other four locations were within 75 miles of the East Chicago location,
meaning that they did not employ at least 50 people within 75 miles of Mr. Brodzik’s worksite.
They supported these assertions with an affidavit from Contractors’ chief operating officer, along
with an employee roster. The defendants argue that Mr. Brodzik cannot dispute these facts, and
that summary judgment is therefore proper as to whether they employed at least 50 people within
75 miles of Mr. Brodzik’s worksite.
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The record is not as unequivocal as the defendants contend, though. In response to Mr.
Brodzik’s request for FMLA leave, Contractors provided him with a notice dated May 21, 2012,
entitled “Notice of Eligibility and Rights & Responsibilities (Family and Medical Leave Act).”
[DE 41-1 p. 4]. The notice was completed by “Tina/HR Dept.” on a form prepared by the U.S.
Department of Labor for use by employers. The top of the form states, “In general, to be eligible
an employee must have worked for an employer for at least 12 months, have worked at least
1,250 hours in the 12 months preceding the leave, and work at a site with at least 50 employees
within 75 miles.” [Id.]. The form then allows the employer to indicate with a checkmark whether
the employee is eligible for FMLA leave, and if not, why. It states, “This Notice is to inform you
that you:”, after which it gives several options. One option states: “Are eligible for FMLA
leave.” [Id.] Another option states that the employee is not eligible for FMLA leave because
“[y]ou do not work and/or report to a site with 50 or more employees within 75 miles.” [Id.] The
form given to Mr. Brodzik contains a check mark next to the first option, informing him that he
is eligible for FMLA leave, and does not contain any mark next to the option indicating that he
does not work at a site with 50 or more employees within 75 miles. [Id.] The remainder of the
form then informs Mr. Brodzik of his rights and responsibilities for taking FMLA leave.
This document creates a genuine dispute of fact, as it could be construed as an admission
by Contractors that it did employ 50 or more employees within 75 miles of Mr. Brodzik’s
worksite at the time. The top of the form states, in part, that an employee must work at a site with
at least 50 employees within 75 miles to be eligible, and Contractors checked next to the
statement in the middle of that same page that Mr. Brodzik was eligible for FMLA leave,
indicating that he in fact met that requirement. Likewise, the form also allowed Contractors to
inform Mr. Brodzik that he did not work at a site with 50 or more employees within 75 miles, in

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which case he would not have been eligible for FMLA leave. But Contractors did not check that
option, and instead checked that Mr. Brodzik was eligible. A reasonable jury could therefore
conclude from this document, which was completed by Contractors, that Contractors employed
50 or more employees within 75 miles of Mr. Brodzik’s workplace. The evidence the defendants
submitted in support of summary judgment does not negate that evidence, but merely creates a
factual dispute that a jury will have to resolve. Accordingly, the defendants’ motion for summary
judgment must be denied, and the Court need not reach Mr. Brodzik’s alternative argument that
the defendants should be equitably estopped from contesting his eligibility.
B.

Mr. Brodzik’s Request for Summary Judgment
In his brief in response to the defendants’ motion for summary judgment, Mr. Brodzik

also requested summary judgment in his favor on his claims for FMLA interference (Count 1),
FMLA retaliation (Count 2), and promissory estoppel under state law (Count 3). He argues that
there is no genuine dispute that the defendants should be equitably estopped from denying that
he is an eligible employee under the FMLA, that the defendants interfered with his FMLA rights
by failing to restore him to the same position and by constructively discharging him following
his return, that they retaliated against him due to his FMLA leave, and that those same facts
establish his promissory estoppel claim, too. In response to these requests, the defendants argue
that they are procedurally improper, factually unsupported, and premature. The Court agrees
with the defendants in each respect.
First, if Mr. Brodzik wanted summary judgment granted in his favor, he needed to file his
own motion for summary judgment, especially where he was seeking summary judgment on
issues other than those raised in the defendants’ motion. The local rules state that all motions
must be filed separately, and they also require a separate supporting brief for any motion for
summary judgment. N.D. Ind. L.R. 7-1(a), (b)(3). Mr. Brodzik did not even file a motion,
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though; he merely responded to the defendants’ motion. That is unacceptable, particularly since
the local rules have different requirements for opening and response briefs, and give different
deadlines for the opposing party to file a response versus a reply brief. Id. 56-1(a), (b), (c).
Accordingly, the Court denies Mr. Brodzik’s requests on that basis.
Second, Mr. Brodzik’s evidence fails to establish each of the elements of these claims, as
to which he bears the burden of proof. For example, for either equitable estoppel2 or promissory
estoppel to apply, Mr. Brodzik would need to show that he reasonably relied to his detriment on
the defendants’ promises or representations. Peters v. Gilead Scis., Inc., 533 F.3d 594, 600 (7th
Cir. 2008); Minard v. ITC Deltacom Comm’ns, Inc., 447 F.3d 352, 359 (5th Cir. 2006). In
support of this element, Mr. Brodzik states only, “I relied upon the representations of
Contractors . . . .” [DE 41-1 p. 1]. However, that is a bare legal conclusion that is entitled to no
weight at summary judgment, and does not indicate whether, had he known he was not eligible
for FMLA leave, Mr. Brodzik would have or could have done anything differently to avoid the
results that ensued. Thus, Mr. Brodzik has failed to show that he is entitled to summary judgment
in his favor on that issue.
Further, though neither party has distinguished among the two defendants relative to
these motions, the evidence is not the same as to both Contractors and Mr. Haendiges in relation
to equitable estoppel or promissory estoppel. Both of those doctrines require that the party being
estopped made a promise or representation. Peters, 533 F.3d at 600; Minard, 447 F.3d 359. As to

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Assuming that a party can use equitable estoppel to become an eligible employee under the
FMLA in the first place. The Seventh Circuit has not yet resolved that question, Peters, 533 F.3d
at 599; see Holder v. Ill. Dep’t of Corrs., 751 F.3d 486, 493–95 (7th Cir. 2014) (noting, but not
reviewing or analyzing on the merits, the district court’s holding that the employer was equitably
estopped from denying the plaintiff’s eligibility for FMLA leave), and since it is not dispositive
here at this point, the Court does not address it either.
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Contractors, that requirement is likely satisfied by the forms it gave Mr. Brodzik notifying him
that he was eligible and approved for FMLA leave. However, there is no indication that Mr.
Haendiges completed or was even aware of those forms, or that Mr. Haendiges made any
promise or representation to Mr. Brodzik relative to his entitlement to FMLA leave. Thus, Mr.
Brodzik’s request for summary judgment on those issues as to Mr. Haendiges is clearly
unwarranted.
Third, Mr. Brodzik’s request for summary judgment on these issues is premature, as the
parties had not even begun engaging in discovery at the time he made the request. Unlike the
defendants’ motion, which addressed a discrete factual question that might have been amenable
to an early resolution, the issues underlying Mr. Brodzik’s requests are fact-intensive and will
undoubtedly require factual development through discovery. Accordingly, consistent with Rule
56(d), defense counsel submitted an affidavit indicating that the defendants would need to
preform discovery on a variety of subjects before they could adequately respond to the motion.
Mr. Brodzik did not respond to this issue, and has provided no reason why the Court should
entertain a motion for summary judgment on these fact-intensive questions before any discovery
has been conducted. The Court therefore denies Mr. Brodzik’s request on that basis, too.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment [DE 37] is
DENIED, as is Mr. Brodzik’s request for summary judgment.
SO ORDERED.
ENTERED: August 7, 2015

/s/ JON E. DEGUILIO
Judge
United States District Court
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