Scott v. Lear Corporation et al
OPINION AND ORDER: For the reasons set forth in the Opinion and Order, Lear's Summary Judgment motion 99 is GRANTED and this case is DISMISSED WITH PREJUDICE. Signed by Judge Rudy Lozano on 9/27/2017. (Copy mailed to pro se party)(jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
DAVID A. SCOTT, JR.,
OPINION AND ORDER
This matter is before the Court on the Motion for Summary
Judgment filed by Lear Corporation on January 31, 2017 (DE #99).
For the reasons set forth below, this motion is GRANTED and this
case is DISMISSED WITH PREJUDICE.
David A. Scott, Jr. (“Scott”) was employed by Lear Corporation
(“Lear”) from October 2010 until his termination on April 23, 2013.
Approximately a year after his termination, he filed the instant
law suit pro se, naming Lear and several individuals as defendants.
He alleges violations of the Americans with Disabilities Act (42
U.S.C. § 12101), Title VII of the Civil Rights Act of 1964, as
amended (42 U.S.C. § 2000e-5), and wrongful termination.
Court previously dismissed the individual defendants (DE #33),
leaving only Lear as a defendant.
Lear filed the instant motion on January 31, 2017.
served Scott with a “Notice of Summary Judgment Motion” that
explained what a summary judgment motion is and his obligations in
response to the motion. (DE #102). The notice explained that
evidence, and that the court is not required to consider materials
that are not cited.
Despite this notice, Scott filed a nine page
response to the instant motion devoid of any citations.
provided over 400 pages of exhibits.
Lear filed a reply brief on
March 20, 2017, and the motion is now ripe for adjudication.
Summary judgment must be granted when “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).
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).
Not every dispute between the
parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the
judgment.” Id. To determine whether a genuine dispute of material
fact exists, the Court must construe all facts in the light most
favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.
See Ogden v. Atterholt, 606 F.3d 355, 358
(7th Cir. 2010).
A party opposing a properly supported summary judgment motion
may not rely on allegations in her own pleading but rather must
“marshal and present the court with the evidence she contends will
prove her case.”
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d
speculation or conjecture will not suffice.” Stephens v. Erickson,
569 F.3d 779, 786 (7th Cir. 2009) (citation omitted).
nonmoving party fails to establish the existence of an essential
element on which she bears the burden of proof at trial, summary
judgment is proper.
See Massey v. Johnson, 457 F.3d 711, 716 (7th
undisputed and will be accepted as true. The facts1 are as follows:
Having verified that the cited evidence supports each of the facts presented
in Lear’s brief, the facts presented here are borrowed from the brief (DE
#100) with only minor alterations.
Lear is an automotive supplier. Lear employed Scott at its
Hammond, Indiana facility. (Def. Ex. 1: Scott Dep. I at 23; Def.
Ex. 2: Scott Dep. II at 12).2 UAW Local 2335 (“UAW”) represents
the facility’s hourly bargaining unit employees such as Scott.
(Scott Dep. II at 19, 21). Lear and the UAW were parties to a
collective bargaining agreement entered into on September 12,
2009. (Def. Ex. 4). The bargaining unit employees were subject to
Lear’s no-fault attendance policy. (Def. Ex. 5). Scott received a
copy of that policy. (Def. Ex. 6).
Scott Receives Permanent Work Restrictions
Scott began his employment with Lear in October 2010. (Scott
Dep. I at 23; Scott Dep. II at 12). In February 2011, Scott reported
to Lear that he injured his finger. (Scott Dep. I at 29). In March
or April 2011, Scott reported that his feet were hurting. (Scott
Dep. I at 33). Scott went to the doctor in June 2011 for his feet,
but was not placed on any work restrictions. (Scott Dep. I at 3435). In May 2011, Scott alleged that he hurt his shoulder while
working at Lear. (Scott Dep. I at 35; Scott Dep. II at 13). On
Scott has provided deposition testimony relevant to this case on three
“Dep. I” refers to the deposition transcript from the February
24, 2016, deposition. “Dep. II” refers to the deposition transcript from the
March 29, 2016, deposition. “Dep. III” refers to the deposition transcript
from the July 16, 2013, deposition.
July 11, 2011, Scott filed a worker’s compensation claim for the
shoulder injury he suffered in May 2011. (Scott Dep. I at 42; Def.
Ex. 7). On November 14, 2011, after performing a functional
capacity evaluation, Dr. Joseph Schwartz put Scott on permanent
restrictions consisting of “light physical demand level with 20
pounds of occasional lifting, 10 pounds of frequent lifting, and
negligible constant lifting.” (Scott Dep. I at 44; Def. Ex. 8).
Scott’s Leave of Absence
In December 2011, Scott applied for and received leave under
Concurrent with his leave, he applied for and received short-term
disability benefits. (Scott Dep. I at 47-48; Scott Dep. II at 1415).
Scott’s leave of absence began on December 20, 2011, and
ended on August 29, 2012. (Scott Dep. I at 48; Scott Dep. II at
Scott’s Work at Lear from August 29, 2012 – November 28, 2012
Scott returned to work from his leave of absence on August
29, 2012. (Scott Dep. I at 48, 82; Scott Dep. II at 15).
tendinitis. (Scott Dep. I at 82-83). However, the November 2011
permanent restrictions issued by Dr. Schwartz remained in place.
On his first day back on August 29, 2012, Lear assigned Scott
to a job steaming seats that was similar to a job he had previously
performed. (Scott Dep. I at 83-84). He performed no other job that
day. (Def. Ex. 3: Scott Dep. III at 59). As Scott admitted, that
job “was within my restrictions” and it was “easy for me to do.”
(Scott Dep. II at 182; Scott Dep. III at 57).
At the end of his
shift, his right shoulder felt “fine,” and on a zero to ten pain
scale, his level of pain was “zero.” (Scott Dep. III at 59).
On August 30, 2012, Scott initially worked on the job steaming
seats that he performed on August 29, 2012. (Scott Dep. I at 8788). He next worked on a job that had “something to do with the
bolts.” (Id. at 90). Scott had no issue with performing this job.
(Id. at 91).
After an hour or two, Scott returned to the job
steaming seats. (Id.).
Scott was later moved to a job applying
leather covers to headrests.
(Id. at 89).
He described the task
I had to take the leather and put it on a ball
which you press on the lever and it releases
steam and it’s supposed to loosen up the
leather. And then I have to put the leather on
the headrest and snap it closed.
(Id.). There were also “some kind of clamps” that Scott had to
close down. (Id. at 90). Finally, there was a lever that made the
seat lay down. (Id.). Scott performed no other jobs on August 30,
2012. (Id. at 91). Scott asked Dianne Jewell, the Health and Safety
restrictions. (Scott Dep. I at 88-89). Jewell indicated it was
within his restrictions. (Id. at 89, 92-93).
At the end of his shift, Scott reported that his right arm
was swollen and his back was sore. (Scott Dep. I at 94-96). He
asked Jewell for an Incident Report. (Id. at 94).
out the Incident Report and gave it to Jewell. (Scott Dep. I at
96-97; Def. Ex. 9). Jewell then sent Scott to the medical clinic
to treat his injuries. (Scott Dep. I at 97-98). The medical clinic
put Scott off work and directed him to see Dr. Schwartz. (Id. at
In early September 2012, Monica Holt, the then Assistant Human
Resources Manager, and Jewell met with Scott and UAW Vice President
Bill Behr to discuss his return to work. (Scott Dep. I at 52, 105107, 109). In that meeting, Scott received a copy of a September
5, 2012, letter from Jewell confirming that Lear had work available
within his restrictions and that he should report to work the next
day. (Def. Ex. 10; Scott Dep. I at 106).
Although Scott contends
he showed them a doctor’s note placing him off work, he admitted
neither Jewell nor Holt excused him from returning to work. (Scott
Dep. I at 107-08). On September 20, 2012, Scott received another
available within his restrictions and directed him to report to
directives, Scott did not report to work in September or October.
(Id. at 109, 116).
according to Scott, told him he could not work until he had an
MRI. (Scott Dep. I at 116, 118). He also provided Scott with a
note keeping him off work. (Scott Dep. I at 118; Def. Ex. 12).
On November 12, 2012, Scott received an email from Barbara
Sacha (“Sacha”), the then Human Resources Manager, advising him
that Lear had the “ability to accommodate the work restrictions
that were set forth by Dr. J. Schwartz.” (Scott Dep. I at 118-120;
Def. Ex. 13).
It was at that time that Scott learned that Dr.
Schwartz had amended his earlier work restrictions and had released
him to light duty work with the following limitations “no use of
Right Arm.” (Scott Dep. I at 118, 120; Def. Ex. 14).
Scott to report to work on the following day. (Def. Ex. 13).
Scott reported to work on November 13, 2012. (Scott Dep. I at
125). Scott worked on November 13, 14, 15, 19, 20, 21, 26, and 27,
2012. (Id. at 127).
During his first week back to work, there was
no work for Scott and he sat in the cafeteria.
(Id. at 127-28).
During his second week, Scott wiped down tables. (Id. at 129).
November 26 and 27, Scott sorted bolts in the tool crib. (Id.).
On November 27, 2012, Jewell advised Scott in the presence of his
restrictions and if he chose to go home, he would receive an
attendance point under Lear’s attendance policy. (Scott Dep. I at
130-31; Def. Ex. 15). That same day, Scott informed Jewell that he
needed to see the doctor because he was having sharp pain in his
neck, and he needed something for the pain. (Scott Dep. I at 131).
Jewell told Scott to contact the worker’s compensation nurse.
Scott’s last day at work was November 27, 2012.
Dep. II at 19).
After that day, he stopped coming to work. (Id.).
On December 3, 2012, Scott treated with Dr. Jeff Staron.
(Scott Dep. I at 132). At that appointment, Dr. Staron told Scott
that he could work with restrictions of “no use of the right arm,”
but he did not provide Scott with a document containing this
restriction. (Scott Dep. I at 132-33). On December 10, 2012, Scott
picked up a Work Restriction Form from Dr. Staron that contained
a work restriction that differed from the one they discussed on
December 3, 2012. Instead of no use of right arm, the form provided
• Restrictions: No overhead work with right arm, no lifting
over 10 lbs with right arm.
• Restrictions to be in place until follow up in 6 weeks in
(Scott Dep. I at 138; Def. Ex. 16).
On December 11, 2012, Sacha sent Scott a letter advising him
that Dr. Schwartz had released Scott to return to work and that
Lear could accommodate his restrictions. (Def. Ex. 17; Scott Dep.
I at 133). Scott did not return to work but rather sent an e-mail
to Sacha on December 13, 2012, stating that he went to see “another
specialist” and that he “told me no lifting with my right [sic]
and six weeks of physical therapy . . . . So at this time Barbara
Sacha I am on pain and inflammation medication and no lifting with
my right [sic] and six weeks of physical therapy so that’s why I’m
unable to work at this present time . . . .” (Scott Dep. I at 134;
Def. Ex. 18).
On December 17, 2012, Holt e-mailed Scott a letter informing
him as follows:
Lear Corporation is in receipt of your e-mail
dated 12/13/2012. In your e-mail, you indicate
that you are currently receiving treatment
from another physician. In accordance with the
letter sent to you … [on] December 11, 2012,
documentation from your attending physician
substantiating your absence. See Collective
(Scott Dep. I at 135; Def. Ex. 19).
The letter quoted the medical leave of absence provision in
Article 13, § 3 of the CBA which provided in pertinent part:
An employee requesting a Medical Leave of
Absence must provide documentation from
his/her attending physician which states the
date the disability began, the medical basis
for the disability, and the expected date the
employee can reasonably be expected to return
(Def. Ex. 4).
That same day, Scott emailed Holt with his response. (Scott
Dep. I at 147; Def. Ex. 20). Scott disclosed that he had seen
another doctor who had restricted him from working.
At this point I am still unable to lift or do
anything with my right limb and the doctor has
me on some pain medication and 6 weeks of
physical therapy . . . . I can call you
tomorrow 12-18-12 to discuss what’s next but
as of now I still can’t use my right hand and
I’m taking pain medication . . . .
(Def. Ex. 20).
On January 7, 2013, Scott’s friend, Deandra Jones, dropped
off an envelope containing Dr. Staron’s medical records.
Ex. 21; Scott Dep. I at 149-50).
Although Scott had driven with
Jones to the Hammond facility, he did not enter the facility with
her. (Scott Dep. I at 153; Scott Dep. III at 40). Patrice Tarver,
the then Human Resources Specialist, received the envelope from
Jones. (Def. Ex. 22: Verified Statement of Patrice Tarver at ¶ 34). Scott contends that the records he gave to Jones included Dr.
Staron’s December 3, 2012, Work Restriction Form. (Scott Dep. I at
However, Tarver reviewed the contents of the envelope
and determined it solely contained a three page medical report
from Dr. Staron. (Tarver Ver. Statement at ¶ 4). The envelope did
not contain any documents describing work restrictions, including
the Work Restrictions Form.
to Sacha or Holt. (Id. at ¶ 5).
Tarver delivered the document
According to the medical report
that Jones dropped off, Dr. Staron examined Scott on December 3,
2012. (Def. Ex. 21). It did not mention the restrictions contained
in the Work Restrictions Form and it did not put Scott off of work
for any period of time.
Lear Terminates Scott’s Employment Effective April 23, 2013
Restriction Form to Scott’s workers’ compensation attorney who, in
turn, delivered the form to Lear’s workers’ compensation attorney.
(Scott Dep. I at 158-59). On April 19, 2013, Lear received a copy
of the form. (Def. Ex. 23).
This form was not included in the
envelope that Tarver received from Jones or the records that Sacha
received and reviewed from Tarver. (Tarver Ver. Statement at ¶ 5).
Effective April 23, 2013, Lear terminated Scott’s employment.
(Def. Ex. 23). Scott received a copy of the April 23, 2013,
(Scott Dep. I at 159-60).
In the letter,
Sacha advised Scott that Lear had discharged him because: (1) he
did not submit evidence substantiating his need to be off work
after November 27, 2012; and (2) he did not report to work after
that date, even though both Dr. Schwartz and Dr. Staron had
released him to return to work with restrictions and Lear had told
him it would accommodate his restrictions. (Def. Ex. 23). Aside
from some emails he exchanged with Holt in early January 2013 prior
to Jones dropping off the medical records and the April 23, 2013,
termination letter, Scott had no contact with Sacha or Holt in
2013. (Scott Dep. I at 157-60).
The UAW files a grievance on behalf of Scott
Article 5 of the CBA has a three step grievance procedure.
(Def. Ex. 4). If the grievance is not settled at Step 3, the UAW
may appeal to arbitration.
The parties may also mutually
Conciliation Service. (Id.).
On April 24, 2013, the UAW filed a grievance protesting
Scott’s discharge. (Def. Ex. 24). Scott received a copy of the
grievance. (Scott Dep. II at 156). On September 6, 2013, Lear
denied the grievance at Step 3 of the grievance procedure. (Def.
Ex. 25). In March 2014, Lear, the UAW, and Scott participated in
binding mediation. (Scott Dep. II at 160-61). Scott contends he
did not agree to binding mediation. (Scott Dep. II at 165-66).
Scott met with the UAW in advance of the mediation and reviewed
mediation. (Id. at 161-62).
At the mediation, Scott testified and
communicated his position as to why Lear should not have discharged
him. (Id. at 161). He also was able to introduce some, but not
all, of his documents into evidence. (Id. at 162).
issued a decision denying the grievance. (Id. at 170, 172).
April 25 or 26, 2014, Scott received a letter from the UAW advising
him that, given the outcome of the mediation, the UAW had withdrawn
the grievance and would not be taking any further action. (Def.
Ex. 26; Scott Dep. II at 172).
Scott’s EEOC Charge
Scott filed EEOC Charge #470-2013-02513 on August 11, 2013.
Questionnaire. A fax line that appears on one copy of the Intake
Questionnaire is dated June 6, 2013. (Def. Ex. 28). The EEOC time
stamped another copy of the Intake Questionnaire as received July
discrimination,” “disability discrimination,” and “retaliation.”
(Ex. 27). The EEOC dismissed the Charge and issued Scott a right
to sue letter on March 19, 2014. (Def. Ex. 30).
Scott’s Harassment Claim is Barred for Failure to Exhaust
Scott’s complaint alleges harassment, but he did not allege
harassment in his EEOC charge.
(Def. Ex. 27).
“Title VII does
not authorize the filing of suit until the plaintiff has exhausted
his administrative remedies.”
See Hill v. Potter, 352 F.3d 1142,
1145 (7th Cir. 2003).
Scott did not present this claim to the
Furthermore, Scott has offered no argument in response to Lear’s
assertion that the harassment claim is barred.
must be dismissed.
Scott’s Title VII and ADA Claims are Limited to Events on or
After August 10, 2012
In Indiana, an EEOC charge “must be filed within 300 days of
the occurrence of the act that is the basis of the complaint.”
Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir. 1994).
Although the Charge is dated August 11, 2013, there is an Intake
Questionnaire dated June 6, 2013.
Even if the earlier date is
used as the date Scott filed his Charge, his ADA and Title VII
claims are limited to claims based on events occurring on or after
August 10, 2012. This includes Scott’s allegation that Lear failed
to accommodate his disability prior to his December 2011 medical
Once again, Scott has offered no argument in response to
Lear’s assertion that claims based on acts prior to August 10,
2012, are barred.
Accordingly, any claims based on acts prior to
August 10, 2012, will be dismissed.
Scott’s ADA Claim for Failure to Accommodate Fails
Under the ADA, as amended by the ADA Amendments Act of 2008,
qualified individual on the basis of disability.”
42 U.S.C. §
accommodations to the known physical . . . limitations of an
otherwise qualified individual with a disability” who is an
accommodation would impose an undue hardship on the operation of
the business.” 42 U.S.C. § 12112(b)(5)(A). “To establish a claim
for failure to accommodate, a plaintiff must show that: (1) she
is a qualified individual with a disability; (2) the employer was
aware of her disability; and (3) the employer failed to reasonably
accommodate the disability.”
Sears, Roebuck & Co., 417 F.3d 789,
797 (7th Cir. 2005)(citation omitted).
Scott alleges that, following his return to work on August
29, 2012, Lear failed to reasonably accommodate his disability.
More specifically, he alleges that Lear assigned him to a job
installing leather on headrests and that job was inconsistent with
his permanent restrictions because it required use of his right
(Scott Dep. I at 92).
His permanent restrictions, however,
did not address pulling or pushing and did not prevent him from
using his right arm.
It was not until November of 2012 that Scott
received a restriction that he not use his right arm.
That restriction was accommodated by having Scott sit in the
cafeteria, wipe tables, and sort bolts.
(Scott Dep. I at 125-
Scott also asserts that Lear would not permit him to return
The evidence shows that Lear repeatedly instructed Scott
to return to work because they had work that would accommodate his
(Def. Exs. 10, 11, 13, 17, 19).
disability, failed to provide medical care, or told him he could
accommodate claim fails.
Scott’s Sex Discrimination Claims Fail
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
See 42 U.S.C. §§ 2000e–2(a)(1).
To prevail on
his sex discrimination claim, Scott must demonstrate a causal
link between his gender and an adverse employment action.
The legal standard to be applied “is simply whether the
evidence would permit a reasonable factfinder to conclude that
proscribed factor caused the discharge or other adverse employment
Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th
“Evidence must be considered as a whole, rather than
asking whether any particular piece of evidence proves the case
by itself – or whether just the ‘direct’ evidence does so, or the
Scott alleges that female employees received preferential
Pattern-or-practice claims are limited to class actions.
Matthews v. Waukesha Cnty., 759 F.3d 821, 829 (7th Cir. 2014).
Although Scott’s charge and complaint do not set forth the basis
for his sex discrimination claim, he alleged during his deposition
that Lear discriminated against him based on his sex with respect
allegations with evidence.
Because there is no evidence before
this Court from which a reasonable jury could find that Scott’s
sex was a factor in any adverse employment action, this claim must
See Ortiz, 834 F.3d at 765.
Scott’s Retaliation Claim Fails
retaliating against an employee because the employee has opposed
a practice that violates the statute.
For Scott’s retaliation
claims to survive summary judgment, he must offer evidence that
materially adverse employment action, and that a causal connection
exists between the protected activity and the adverse employment
See Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir.
To show a causal connection, Scott must produce some
evidence that the defendant “would not have taken the adverse …
action but for [his] protected activity.” Id. (internal quotations
and citations omitted).
Lear terminated Scott on April 23, 2013.
Scott contends that
the decision to terminate him was the result of his complaints in
2011 that Lear treated female employees more favorably than males
and his complaint in September 2012 that Lear had not complied
with his work restrictions.
support these claims.
Scott has produced no evidence to
The timing of the events is not so close
that it allows an inference that the termination was the result
of protected activity.
See Kidwell v. Eisenhauer, 679 F.3d 957,
966 (7th Cir. 2012)(“suspicious timing will rarely be sufficient
in and of itself to create a triable issue.”)(internal quotations
and citations omitted). Scott has pointed to no similarly situated
employee that was treated more favorably. Further, he has produced
employment was pretextual.
Based on the facts before this Court,
no reasonable jury could find in Scott’s favor on his retaliation
claims, and they will be dismissed.
Scott’s Wrongful Discharge Claim Fails
This Court previously found that Scott’s wrongful discharge
claim is a hybrid claim under section 301 of the LMRA, 29 U.S.C.
(DE #33 at 14).
To prevail on this claim, Scott “must
have a meritorious claim against both the union and the employer.”
Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th Cir.
In response to the instant summary judgment motion, Scott
has not produced evidence that would establish he has a meritorious
claim against either Lear or the union.
The CBA provides that Lear may discharge an employee for just
(Def. Ex. 4, Art. 3, Section 2).
Here, Lear asserts that
it had just cause to discharge Scott because he did not submit
evidence supporting his claim that he needed to be off work after
November 27, 2012, and he did not report to work after that date
even though his treating physicians had released him to return to
restrictions set by his physicians.
In support of its summary
assertion that Scott was discharged for just cause, and Scott has
produced no evidence to the contrary.
Accordingly, this claim
Additionally, this claim fails because, based on the evidence
properly before this Court, no reasonable jury could find that UAW
breached its duty of fair representation.
A union breaches its
discriminatory, or in bad faith.
See Air Line Pilots Ass’n, Int’l
v. O’Neill, 499 U.S. 65, 67 (1991).
In response to the instant
summary judgment motion, Scott has produced no evidence that the
union acted outside the range of reasonableness or that any union
official’s motives were improper.
Therefore, Scott’s wrongful
discharge claim fails.
For the reasons set forth below, Lear’s Summary Judgment motion
(DE #99) is GRANTED and this case is DISMISSED WITH PREJUDICE.
DATED: September 27, 2017
/s/RUDY LOZANO, Judge
United States District Court
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