Gonzalez v. City of Hammond

Filing 34

OPINION AND ORDER: The Court GRANTS Defendant's Motion for Summary Judgment 25 . The Court DIRECTS the Clerk of Court to enter judgment in favor of the Defendant City of Hammond and against the Plaintiff Victor Gonzalez. Signed by Judge Theresa L Springmann on 2/14/2022. (nhc)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
VICTOR GONZALEZ,
Plaintiff,
v.

CAUSE NO.: 2:17-CV-252-TLS

CITY OF HAMMOND,
Defendant.
OPINION AND ORDER
This matter is before the Court on the Defendant City of Hammond’s Motion for Summary
Judgment [ECF No. 25], filed on December 17, 2018. The Plaintiff Victor Gonzalez’s Brief in
Opposition to the Summary Judgment Motion [ECF No. 30] was filed on January 21, 2019. The
Defendant filed its reply [ECF No. 31] on February 4, 2019. For the reasons stated below, the
Court GRANTS the Defendant’s Motion.
FACTUAL BACKGROUND
Plaintiff Victor Gonzalez is a Hispanic male and is over forty years old. Pl. Ex. 2 ¶¶ 1, 4,
ECF No. 30-2. From 1997 until April 2016, the Plaintiff was employed by Defendant City of
Hammond as an auto mechanic for the Hammond Police Department. See id. at ¶ 3. He states in
his declaration that he was the only Hispanic mechanic and the oldest mechanic employed by the
Defendant. Id. at ¶¶ 4–5. He testified that he had worked as an auto mechanic before working for
the Defendant. Def. Ex. 5, 11:6–12:10, ECF No. 27-5.1 He also testified that he did not think that
race or age played a factor in his termination. Id. at 36:5–24. The Defendant’s job posting for the
Plaintiff’s position required that “[t]he employee must regularly lift and/or move up to 10 pounds
1

The Plaintiff and the Defendant both provided separate excerpts of the Plaintiff’s deposition. The Court
will indicate which excerpt it relies on.

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and occasionally lift and/or move 100 pounds.” Def. Ex. 1, Decl. Ex. 1, ECF No. 27-1. The
Plaintiff could lift 100 pounds when the Defendant hired him. Def. Ex. 5, 15:2–3.
On October 20, 2011, the Plaintiff injured his knee while at work when a chair that he
was standing on slid out from under him. Def. Ex. 1, Decl. Ex. 6, ECF No. 27-1. The Plaintiff
reported this injury on October 25, 2011. Id. The Plaintiff suffered from an ankle sprain and a
right knee sprain/contusion.2 Def. Ex. 1, Decl. Ex. 7 (p. 45 of 445), ECF No. 27-1. His injury
was covered by workers’ compensation. Def. Ex. 1, ¶ 15. The Plaintiff’s physicians placed him
on temporary work restrictions that the Defendant accommodated. Def. Ex. 2, ¶ 6, ECF No. 27-2.
In January 2012, the Plaintiff had surgery on his right knee. Def. Ex. 3, 3, ECF No 27-3. He was
subsequently cleared to return to work with no restrictions. Id. at 4.
The Plaintiff suffered another injury on the job on March 27, 2013. Def. Ex. 1, Decl. Ex.
8, ECF No. 27-1. He injured his right knee when he stood up from a kneeling position. Id. He
reported his injury to the Defendant on April 1, 2013. Id. He again received workers’
compensation. Id. He returned to work, and the Defendant accommodated his temporary work
restrictions. Def. Ex. 2, ¶ 17.
On November 12, 2014, the Plaintiff suffered an injury. Def. Ex. 1, Decl. Ex. 10, ECF
No. 27-1. He reported the injury and his left knee swelling and pain to the Defendant on
December 15, 2014. Id. Workers’ compensation covered this injury.3 Def. Ex. 1, ¶ 20. On
January 29, 2015, the Plaintiff had left knee surgery. Def. Ex. 1, Decl. Ex. 7 (pp. 181–83 of 445).
He was also diagnosed with osteoarthritis and degenerative joint disease. Id. (p. 182 of 445). The

2

The Plaintiff testified that he injured his right ankle, not his left ankle. Pl. Ex. 1, 21:2, ECF No. 30-1.
The Injury Report identifies the Plaintiff’s left ankle as the ankle injured in 2011. Def. Ex. 1, Decl. Ex. 7
(p. 45 of 445).
3
The Plaintiff avers that this injury was because of the 2013 accident. Pl. Ex. 2, ¶ 6.

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Defendant accommodated the Plaintiff’s temporary work restrictions arising from that injury.
Def. Ex. 2, ¶ 8.
On January 15, 2016, the Plaintiff was issued a permanent work restriction of a 50-pound
maximum with a 25-pound frequent lifting restriction and “[n]o kneeling and minimal squatting
left knee.” Def. Ex. 1, Decl. Ex. 11, ECF No. 27-1. The Defendant knew of the work restriction
because workers’ compensation reported the Plaintiff’s progress. Def. Ex. 1, ¶¶ 16, 21. The
Plaintiff also provided the Defendant with a copy of his permanent work restriction. Pl. Ex. 1,
26:8–16.
One of the Plaintiff’s co-workers reported to the Defendant that the Plaintiff did not do
many jobs because of his restrictions, including lift tires, work under the dashboard, push a
vehicle in the shop, or “unload stock.” Def. Ex. 6, Decl. Ex. 1, ECF No. 27-6. Another co-worker
reported that the Plaintiff could not lift tires, balance tires, or crawl into the back of police SUVs.
Def. Ex. 7, Decl. Ex. 1, ECF No. 27-7. Dan Miskus, who is in charge of the Defendant’s garage,
states in his declaration that the ability to lift heavy objects, “including occasionally lifting
and/or moving 100 pounds is an essential function of the auto mechanic position.” Def. Ex. 2,
¶ 5. He listed seven tasks that required an auto mechanic to lift between 50 and 100 pounds. Id.
The Plaintiff testified that he could do “everything else” by himself except for installing tires. Pl.
Ex. 1, 43:20–23. The Plaintiff states that he “had to seek assistance from coworkers when it
came to handling or mounting tires.” Pl. Ex 2, ¶ 9. He also states that he can complete five of the
seven tasks Miskus listed, such as raising a vehicle with a hydraulic lift, disassembling vehicle
units, and realigning brakes, without lifting over 50 pounds and violate his restrictions. Id. at
¶¶ 12–17. However, the Plaintiff admits that two tasks, “[r]emoving units such as the engine,
transmission, or differential requires a lift or hoist,” and installing tires are not possible with his

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restrictions. See id. at ¶¶ 13, 18; Pl. Ex. 1, 43:20–23. He testified that other mechanics would
work as a pair to install tires. Pl. Ex. 1, 44:3–6. The Defendant’s Chief of Police states in his
sworn declaration that the other two mechanics raised concerns about their increased workload
because of the Plaintiff’s workload. Def. Ex. 8, ¶ 6, ECF No. 27-8.
In April 2016, the Defendant offered the Plaintiff three alternate positions to
accommodate his permanent work restrictions, but the Plaintiff declined the positions because he
said he either could not perform them or was not qualified. Id. at ¶¶ 7–10. No other open
positions were available. Def. Ex. 1, Decl. Ex. 12, ECF No. 27-1. On April 22, 2016, the
Defendant terminated the Plaintiff’s employment. Id.
The Plaintiff applied for Social Security Disability Insurance (SSDI). Pl. Ex. 1, 33:22–23.
On July 15, 2016, he received notice from the Social Security Administration (SSA) that he
became disabled on April 22, 2016. Pl. Ex. 1, Dep. Ex. 13.
PROCEDURAL BACKGROUND
On October 11, 2016, the Plaintiff filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) alleging the Defendant violated the Age Discrimination in Employment
Act (ADEA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of
1964 (Title VII). See Compl. ¶ 11, ECF No. 1. On March 9, 2017, the EEOC issued the Plaintiff a
notice of right to sue. See id. at ¶ 12. On June 5, 2017, the Plaintiff filed his Complaint alleging
that the Defendant, by terminating his employment on April 22, 2016, violated the ADEA, the
ADA, Title VII, 42 U.S.C. § 1981, and the Indiana Workers’ Compensation Statute. See id. at ¶¶
15, 23, 29, 35, 41.
LEGAL STANDARD

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“The court shall grant summary judgment if the movant shows 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). “[T]he burden on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party has
properly supported [its] motion, the burden shifts to the non-moving party to come forward with
specific facts showing that there is a genuine issue for trial.” Spierer v. Rossman, 798 F.3d 502,
507 (7th Cir. 2015). “To survive summary judgment, the nonmoving party must establish some
genuine issue for trial such that a reasonable jury could return a verdict in [his] favor.” Gordon v.
FedEx Freight, Inc., 674 F.3d 769, 772–73 (7th Cir. 2012).
Within this context, the Court must construe all facts and reasonable inferences from
those facts in the light most favorable to the nonmoving party. Frakes v. Peoria Sch. Dist. No.
150, 872 F.3d 545, 550 (7th Cir. 2017). However, the nonmoving party “is only entitled to the
benefit of inferences supported by admissible evidence, not those ‘supported by only speculation
or conjecture.’” Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (citing Nichols v.
Michigan City Plant Planning Dep’t, 755 F.3d 594, 599 (7th Cir. 2014)). Likewise, irrelevant or
unnecessary factual disputes do not preclude the entry of summary judgment. Carroll v. Lynch,
698 F.3d 561, 564 (7th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
ANALYSIS
The Plaintiff’s Complaint alleges violations under the ADEA, the ADA, Title VII, 42
U.S.C. § 1981, and the Indiana Workers’ Compensation Statute. The Defendant moves for
summary judgment all the claims, each of which the Court considers in turn.

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A.

The Americans with Disabilities Act
The ADA prohibits employers from discriminating against a “qualified individual” on the

basis of his or her disability. 42 U.S.C. § 12112(a); Rowlands v. United Parcel Serv. - Fort
Wayne, 901 F.3d 792, 798 (7th Cir. 2018) (citing Rodrigo v. Carle Found. Hosp., 879 F.3d 236,
241 (7th Cir. 2018)). “Discrimination under the ADA includes failing to make reasonable
accommodations to a qualified employee’s disability.” Rowlands, 901 F.3d at 798 (citing
Rodrigo, 879 F.3d at 241). The ADA defines a qualified individual as “an individual with a
disability who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
To prove a claim of disability discrimination, the Plaintiff “must show that: (1) he is
disabled; (2) he is otherwise qualified to perform the essential functions of the job with or
without reasonable accommodation; and (3) the adverse job action was caused by his disability.”
Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 503 (7th Cir. 2017) (quoting Roberts v. City of
Chicago, 817 F.3d 561, 565 (7th Cir. 2016)). The ADA requires proof of “but for” causation to
satisfy the third element. See A.H. ex rel. Holzmueller v. Ill. High Sch. Assoc., 881 F.3d 587, 593
(7th Cir. 2018).
On summary judgment, the test in a discrimination case is “whether the evidence would
permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or
other proscribed factor caused the discharge or other adverse employment action.” Ortiz v.
Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). “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 ‘indirect’ evidence.” Id. “A plaintiff may prove
but-for causation either ‘by introducing direct or circumstantial evidence that [his] employer took

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an adverse action against [him] because of [his protected status]’ or by invoking the burdenshifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”
Marnocha v. St. Vincent Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 718 (7th Cir. 2021)
(quoting Carson v. Lake County, 865 F.3d 526, 532–33 (7th Cir. 2017)); see also Ferrill v. Oak
Creek-Franklin Joint Sch. Dist., 860 F.3d 494, 499 (7th Cir. 2017) (noting that McDonnell
Douglas burden-shifting analysis has not been displaced).
Under the burden-shifting framework, a plaintiff must first establish a prima facie case by
showing that “(1) [he] is a member of a protected class, (2) [he] was meeting the defendant’s
legitimate expectations, (3) [he] suffered an adverse employment action, and (4) similarly
situated employees who were not members of [his] protected class were treated more favorably.”
Marnocha, 986 F.3d at 718–19 (quoting Carson, 865 F.3d at 533). For an ADA claim, a plaintiff
meets the first prong by showing that he is disabled under the ADA. See Bunn v. Khoury Enters.,
Inc., 753 F.3d 676, 683 (7th Cir. 2014). If a plaintiff meets his burden, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its employment action.
Marnocha, 986 F.3d at 719. If the employer does so, the burden shifts back to the plaintiff to
prove that the employer’s reason was pretextual. Id. In all cases, the question at summary
judgment remains: “has the non-moving party produced sufficient evidence to support a jury
verdict of intentional discrimination?” David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d
216, 224 (7th Cir. 2017);
The Defendant contends that summary judgment should be granted on the Plaintiff’s
ADA claim because he has, among other things, (1) failed to demonstrate that he is a qualified
individual under the ADA, (2) failed to proffer a sufficient explanation to reconcile the
contradiction he created by filing both a SSDI and an ADA claim, and (3) failed to prove, under

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the McDonnell Douglas burden-shifting test, either the prima facie case of discrimination or that
the Defendant’s actions were pretextual. The Court agrees that the Plaintiff has failed to
demonstrate that he is a qualified individual under the ADA. Thus, the Court need not consider
the remaining arguments.
A qualified individual under the ADA “is someone who (1) satisfies the requisite skill,
experience, education, and other job-related requirements of his employment position, and (2)
can perform the essential functions of the position held or desired, with or without reasonable
accommodation.” Budde v. Kane Cnty. Forest Pres., 597 F.3d 860, 862 (7th Cir. 2010) (citing 29
C.F.R. § 1630.2(m)). Whether the Plaintiff satisfies the Defendant’s legitimate selection criteria
is not at issue on this motion. Rather, the Defendant argues that the Plaintiff is not a qualified
individual because he is unable to perform the job’s essential functions with or without
reasonable accommodations. Specifically, the Defendant asserts that the Plaintiff is unable to lift
up to 100 pounds with or without reasonable accommodations.
a. Essential Functions
“The essential-function inquiry is a factual question, not a question of law.” Brown v.
Smith, 827 F.3d 609, 613 (7th Cir. 2016). When determining the essential functions of any
particular job, “consideration shall be given to the employer’s judgment as to what functions of a
job are essential, and if an employer has prepared a written description . . . for the job, this
description shall be considered evidence of the essential functions of the job.” Bilinsky v.
American Airlines, Inc., 928 F.3d 565, 569 (7th Cir. 2019) (quoting 42 U.S.C. § 12111(8)).
Although a court must “look to see if the employer actually requires all employees in a particular
position to perform the allegedly essential functions,” the court should not “otherwise secondguess the employer’s judgment in describing the essential requirements for the job.” Id. at 570

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(quoting DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998)). However, as the employer
does not have an “‘unfettered discretion to decide what is reasonable,” the employer’s judgment
should only be considered an important, rather than a controlling, factor. Id (quoting Miller v. Ill.
Dep’t of Transp., 643 F.3d 190, 198–99 (7th Cir. 2011)). In deciding the essential functions of a
job, “a court may consider, but is not limited to, evidence of the employer’s judgment of a
position, written job descriptions prepared before advertising or interviewing applicants for the
job, the work experience of past incumbents of the job, and the work experience of current
incumbents in similar jobs.” Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001) (citing 29
C.F.R. § 1630.2(n)(3)). “[A]n essential function need not encompass the majority of an
employee’s time, or even a significant quantity of time, to be essential. Rather, an essential
function must be a fundamental duty of the job.” Id. at 929 (internal citations omitted).
The Plaintiff cannot show that he could perform the job’s essential functions. The
Plaintiff’s job required that he be able to lift between 10 and 100 pounds. The Plaintiff was given
a permanent work restriction of not lifting more than fifty pounds. Dan Miskus, who is in charge
of the Defendant’s garage, states in his declaration that the ability to lift heavy objects,
“including occasionally lifting and/or moving 100 pounds is an essential function of the auto
mechanic position.” He lists seven tasks that require an auto mechanic to lift between 50 and 100
pounds. In his affidavit attached to his brief, the Plaintiff states that he “was able to perform all
of the essential functions of my job, though I had to seek assistance from coworkers when it
came to handling or mounting tires.” He further admitted that he could not perform two of the
seven listed task, specifically mounting tires or removing engines, transmissions, or differentials.
The Plaintiff’s only argument is that lifting over 50 pounds was not in fact an essential
function of his job. However, the Court will not second guess the Defendant’s judgment in

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deciding the essential functions for an auto mechanic. The Plaintiff admits that he cannot comply
with the requirement to lift between 10 to 100 pounds because he has a permanent lifting
restriction of no more than 50 pounds. The Plaintiff’s conclusory statements that he was able to
perform the essential functions of the job do not create a genuine issue of material fact. See Mills
v. First Fed. Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 843 (7th Cir. 1996). In Miller v.
Illinois Department of Transportation, the Seventh Circuit held that summary judgment was
inappropriate because the evidence of record showed that employees regularly “substitute and
reassign tasks among themselves,” which was evidence that being 25 feet up in the air was not an
essential function of being a bridge maintenance crew. 643 F.3d at 199–200. Here, the Plaintiff
avers that his co-workers “sometimes needed assistance mounting tires.” That is insufficient to
show that lifting 10 to 100 pounds was not an essential function of his job. Taken as true, the
Plaintiff’s affidavit and deposition testimony that he could not lift over fifty pounds, mount tires,
or remove engines, transmissions, or differentials shows that the Plaintiff cannot perform the
essential functions of his job.
b. Reasonable Accommodations
The Plaintiff contends that the Defendant has offered no accommodation with regard to
alternate employment. However, this is not true. A reasonable accommodation can include the
reassignment to a vacant position. 42 U.S.C. § 12111(9)(B). The Defendant offered the Plaintiff
three alternate jobs that the Plaintiff turned down. The Plaintiff bears the “burden to prove that
there was a vacant position for which [he] was qualified.” Conners v. Wilkie, 984 F.3d 1255,

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1262 (7th Cir. 2021). The Plaintiff provided no additional information about vacant positions
that he could have taken.
The Plaintiff argues that he can perform the essential functions of his job with reasonable
accommodations, specifically that one of his co-workers can assist him when he must lift a heavy
object. However, this is not a reasonable accommodation. Peters v. City of Mauston, 311 F.3d
835, 845 (2002) (holding that the request to have another person lift heavy weight “is
unreasonable because it requires another person to perform an essential function of [the
plaintiff’s] job”); Majors v. Gen. Elec. Co., 714 F.3d 527, 534 (7th Cir. 2013) (“To have another
employee perform a position’s essential function, and to a certain extent perform the job for the
employee, is not a reasonable accommodation.”).4 Because the Plaintiff cannot be an auto
mechanic for the Defendant with a reasonable accommodation, he is not a qualified individual
and cannot prevail on this claim either under the McDonnell Douglas burden-shifting method or
when the evidence is viewed as a whole. The Court need not consider the Defendant’s further
arguments on the Plaintiff’s ADA discrimination claim.
B.

Age Discrimination in Employment Act
The ADEA makes it unlawful for an employer to take adverse action against an employee

who is forty years or older “because of such individual’s age.” 29 U.S.C. §§ 623(a)(1), 631(a).
“To prevail on an age-discrimination claim, the plaintiff must prove that his age was the ‘but-for’
cause of the challenged job action.” Wrolstad v. Cuna Mut. Ins. Soc’y, 911 F.3d 450, 454 (7th
Cir. 2018) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)). “In other words,
under the ADEA ‘it’s not enough to show that age was a motivating factor. The plaintiff must

4

In Majors, the Seventh Circuit, citing Miller, noted that “[c]ircumstances might exist when employees
working in teams are able to share duties among themselves, so that such sharing might be a form of
reasonable accommodation.” 714 F.3d at 534 n.3. However, for the reasons discussed above, the Plaintiff
has failed to present evidence to create a genuine dispute of material fact as to this issue.

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prove that, but for his age, the adverse action would not have occurred.’” Id. (quoting Martino v.
MCI Commc’ns Servs., Inc., 574 F.3d 447, 455 (7th Cir. 2009)). ADEA claims are narrower than
Title VII claims because an ADEA plaintiff may not recover under a mixed-motive
discrimination theory. Id.
All of the evidence in an ADEA claim must be evaluated as a whole, and the McDonnell
Douglas burden-shifting framework is one way to prove discrimination. Id. The Plaintiff seeks to
survive summary judgment on his age discrimination claim under the McDonnell Douglas
burden-shifting test. Under the burden-shifting framework, a plaintiff must show that “(1) [he] is
a member of a protected class, (2) [he] was meeting the defendant’s legitimate expectations, (3)
[he] suffered an adverse employment action, and (4) similarly situated employees who were not
members of [his] protected class were treated more favorably.” Marnocha, 986 F.3d at 718–19
(quoting Carson, 865 F.3d at 533).
The Plaintiff cannot meet his burden on either the second or fourth prongs. First, the
Plaintiff asserts in his brief that the employee who replaced him was younger than he was.5
However, the Plaintiff provides no evidence of his co-workers’ ages or the age of the person who
replaced him. Second, the Plaintiff’s job required that he be able to lift between 10 and 100
pounds, but the Plaintiff could not lift more than fifty pounds and could not install tires. Thus,
the Plaintiff could not meet the Defendant’s legitimate expectations for performing his job. He

5

The Plaintiff’s brief cites paragraph 20 of the Plaintiff’s declaration for the proposition that the person
who replaced the Plaintiff was younger than the Plaintiff. Pl. Br. 5, 11. However, there is no paragraph 20
in the Plaintiff’s declaration, and nowhere in the declaration does the Plaintiff aver that the employee who
replaced him was younger. See Pl. Ex. 2. In support, the Plaintiff also cites his deposition testimony, see
Pl. Br. 5, but the cited deposition testimony provides only that he was replaced by “the son of one of the
officers,” Pl. Ex. 1, 35:21–36:2.

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provides no other evidence that age discrimination occurred.6 Therefore, the Defendant is
entitled to summary judgment on the Plaintiff’s claim of age discrimination because he cannot
prevail on this claim either under the McDonnell Douglas burden-shifting method or when the
evidence is viewed as a whole.
C.

Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981
Under Title VII, it is unlawful for an employer “to . . . discharge any individual . . .

because of such individual’s race.” 42 U.S.C. § 2000e-2. Under § 1981, “[a]ll persons within the
jurisdiction of the United States shall have the same right . . .to the full and equal benefit of all
laws . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Because claims of discrimination
under Title VII and § 1981 are analyzed in the same manner, the Court will consider the
Plaintiff’s claims under § 1981 and Title VII together. See Fields v. Bd. of Educ. of City of
Chicago, 928 F.3d 622, 625 (7th Cir. 2019). As with other discrimination claims, all the
evidence in a race discrimination case must be evaluated as a whole, and the McDonnell Douglas
burden-shifting framework is a valid way to prove discrimination. Logan v. City of Chicago, 4
F.4th 529, 536 (7th Cir. 2021).
The Plaintiff relies on the McDonell Douglas burden-shifting framework for these claims.
Under this framework, the Plaintiff must make a prima facie showing of discrimination by
establishing that (1) [he] is a member of a protected class, (2) [he] performed
reasonably on the job in accord with her employer’s legitimate expectations, (3)
despite [his] reasonable performance, [he] was subjected to an adverse employment
action, and (4) similarly situated employees outside of [his] protected class were
treated more favorably by the employer.

6

The Plaintiff’s deposition testimony was inconsistent on this issue. He testified that “[m]aybe” age was a
factor in his termination but he “cannot affirm that it was based on [his] age” because he thought it was
“[b]ased on his medical condition.” Pl. Ex. 1 36:5–24.

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David, 846 F.3d at 225 (quoting Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir.
2014)) (internal quotation marks and alternations omitted).
Here, the Plaintiff cannot meet the prima facie case of racial discrimination on the second
prong. As previously discussed, the Plaintiff cannot show that he was meeting the Defendant’s
legitimate expectations for the performance of his job because he could not lift the amount of
weight required by the Defendant. The Defendant is entitled to summary judgment on the
Plaintiff’s Title VII and § 1981 race discrimination claims because the Plaintiff cannot prevail on
this claim either under the McDonnell Douglas burden-shifting method or when the evidence is
viewed as a whole.
D.

Indiana Workers’ Compensation Statute
In Frampton v. Central Indiana Gas Co., the Indiana Supreme Court held that “an

employee who alleges he or she was retaliatorily discharged for filing a claim pursuant to the
Indiana Workmen’s Compensation Act . . . has stated a claim upon which relief can be granted.”
260 Ind. 249, 253 (1973) (internal citation omitted). The Indiana Court of Appeals has developed
a three-step approach to address Frampton claims alleging a retaliatory discharge for filing a
workers’ compensation claim. Best Formed Plastics, LLC v. Shoun, 51 N.E.3d 345, 351 (Ind. Ct.
App. 2016). “First, the employee must prove, by a preponderance of the evidence, a prima facie
case of discrimination” by presenting “evidence that directly or indirectly implies the necessary
inference of causation between the filing of a worker’s compensation claim and the termination.”
Id. (citing Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1262 (Ind. Ct. App. 2002)). “Second,
the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the
discharge.” Id. (citing Powdertech, 776 N.E.2d at 1262). Third, “the employee then has the
opportunity to prove that the reason cited by the employer is a pretext” by showing that the

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reasons for termination are “(1) factually baseless; (2) not the actual motivation for his discharge;
or (3) insufficient to motivate the discharge.” Id. (citing Powdertech, 776 N.E.2d at 1261–62).
“To survive a motion for summary judgment in a Frampton case, an employee must
show more than a filing of a worker’s compensation claim and the discharge itself.” Powdertech,
776 N.E.2d at 1262. “The employee must present evidence that directly or indirectly implies the
necessary inference of causation between the filing of a worker’s compensation claim and the
termination, such as proximity in time or evidence that the employer’s asserted lawful reason for
discharge is a pretext.” Id. That is, the Plaintiff must show “‘rapidity and proximity in time’
between the employee’s filing for benefits and the discharge . . . or . . . evidence that the
employer’s proffered reason for the discharge is ‘patently inconsistent with the evidence before
the court.’” Mack v. Great Dane Trailers, 308 F.3d 776, 784 (7th Cir. 2002) (quoting Markley
Enters., Inc. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct. App. 1999)).
The Plaintiff presents no evidence that the Defendant fired the Plaintiff because he filed
for workers’ compensation. A lapse of a year between the filing for workers’ compensation and
termination does not create an inference of retaliation. Goetzke v. Ferro Corp., 280 F.3d 766,
775 (7th Cir. 2002). In fact, a year-long lapse “tends to negate, rather than support, an inference
of causation.” Mack, 308 F.3d at 784 (citing Goetze, 280 F.3d at 775). Here, workers’
compensation covered the Plaintiff’s November 12, 2014 injury as well as his two previous
injuries in 2011 and 2013. The Defendant terminated the Plaintiff’s employment on April 22,
2016, after he was issued a permanent work restriction of lifting no more than 50 pounds. The
Plaintiff presents no other evidence to support his claim that he was fired by the Defendant for
filing a workers’ compensation claim. The more than a year-long lapse in time negates, rather

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USDC IN/ND case 2:17-cv-00252-TLS document 34 filed 02/14/22 page 16 of 16

than supports, an inference of causation. The Defendant is entitled to summary judgment on the
Plaintiff’s Frampton claim.
CONCLUSION
For the forgoing reasons, the Court hereby GRANTS Defendant’s Motion for Summary
Judgment [ECF No. 25]. The Court DIRECTS the Clerk of Court to enter judgment in favor of
the Defendant City of Hammond and against the Plaintiff Victor Gonzalez.
SO ORDERED on February 14, 2022.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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