Torres v. Bremen Castings Inc
Filing
30
OPINION AND ORDER granting Defendants 23 Motion for Summary Judgment. The Clerk is ORDERED to DISMISS THIS CASE WITH PREJUDICE. Signed by Judge Rudy Lozano on 9/28/12. (mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
GABRIEL DEL REAL TORRES,
Plaintiff,
vs.
BREMEN CASTINGS, INC.
Defendant.
)
)
)
)
)
)
)
)
)
NO. 3:11-CV-035
OPINION & ORDER
This matter is before the Court on the Motion for Summary
Judgment, filed by Defendant on February 22, 2012.
the
reasons
set
forth
Judgment is GRANTED.
below,
Defendant’s
(DE #23.)
Motion
for
For
Summary
The Clerk is ORDERED to DISMISS THIS CASE
WITH PREJUDICE.
BACKGROUND
Gabriel Del Real Torres (“Plaintiff”) filed a complaint on
January 24, 2011, alleging that Bremen Castings, Inc. (“Defendant”)
violated certain rights afforded to him under the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and Title VII
of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq.
(“Title VII”).
(DE #1.)
Defendant filed the instant Motion for
Summary Judgment on February 22, 2012.
a response on March 26, 2012.
on April 9, 2012 (DE #28.)
(DE #23.)
(DE #26.)
Plaintiff filed
Defendant filed a reply
The Motion is now fully briefed and
ripe for adjudication.
DISCUSSION
The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, summary judgment shall be granted “if the movant shows
that there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed. R.
Civ. P. 56(a); see also Nebraska v. Wyoming, 507 U.S. 584, 590
(1993); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
In
other words, the record must reveal that no reasonable jury could
find for the nonmovant. Karazanos v. Navistar Int’l Transp. Corp.,
948 F.2d 332, 335 (7th Cir. 1991).
See also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986).
In deciding a motion for
summary judgment, a court must view all facts in the light most
favorable to the nonmovant.
Anderson, 477 U.S. at 255; Trade Fin.
Partners, LLC v. AAR Corp., 573 F.3d 401, 406 (7th Cir. 2009).
According to Rule 56:
A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by:
(A)citing to particular parts of materials
in
the
record,
including
depositions,
documents, electronically stored information,
-2-
affidavits
or
declarations,
stipulations
(including those made for purposes of the
motion
only),
admissions,
interrogatory
answers, or other materials; or
(B) showing that the materials cited do
not establish the absence or presence of a
genuine dispute, or that an adverse party
cannot produce admissible evidence to support
the fact.
Fed. R. Civ. P. 56(c).
Furthermore, “[i]f a party fails to
properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the
court may . . . consider the fact undisputed for purposes of the
motion [or] grant summary judgment if the motion and supporting
materials – including the facts considered undisputed – show that
the movant is entitled to it . . .”
“Whether
a
fact
is
material
Fed. R. Civ. P. 56(e)(2),(3).
depends
on
the
substantive
law
underlying a particular claim and ‘only disputes over facts that
might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.’”
Walter v.
Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988) (citing Anderson, 477
U.S. at 248).
Where a party bears the burden of proof on a particular issue,
the party may not rest on its pleading, but must affirmatively
demonstrate, by specific factual allegations, that there is a
genuine dispute requiring a trial.
See Beard v. Whitley Cnty.
REMC, 840 F.2d 405, 410 (7th Cir. 1988); Hickey v. A.E. Stanley
-3-
Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993). The Seventh Circuit has
clarified that:
[i]t is not the function of the court to scour
the record in search of evidence to defeat a
motion for summary judgment; we rely on the
nonmoving party to identify with reasonable
particularity the evidence upon which he
relies.
The evidence relied upon must be
competent evidence of a type otherwise
admissible at trial. Thus, a party may not
rely upon inadmissible hearsay in an affidavit
or deposition to oppose a motion for summary
judgment.
Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.
1996) (citations omitted). Therefore, if a party fails to properly
establish the existence of an essential element on which the party
bears the burden of proof at trial, summary judgment will be
appropriate.
In this situation, there can be “no genuine dispute
as to any material fact” because a complete failure of proof
concerning an essential element of the nonmovants case necessarily
renders all other facts immaterial.
Celotex, 477 U.S. at 323.
Facts
The material facts in this case are largely undisputed and
will be noted as such where applicable.
Plaintiff, a Hispanic
male, began working for Defendant, a manufacturer of machines
castings, in October of 2000 as a Bench Grinder.
15; DE #25-2, p. 2; DE #27, p. 2.)
(DE #25-1, p. 14-
Written safety procedures and
rules are set in place at the manufacturing plant, including an
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immediate injury-reporting requirement, and Plaintiff was aware of
those rules and requirements.
DE #25-1, p. 9-11.)
(DE #25-2, p. 3, 13, 17, 19-23, 25;
For example, employees are required to report
all work related injuries and accidents to supervisors immediately,
“even when a doctor does not need to be consulted.”
17.)
(DE #25-2, p.
Defendant’s safety focus guidelines instruct employees to
“remember to report immediately even if you’re just sore” and
reiterate that “ALL Accidents/Incidents, Injuries, and Near Misses
should be reported.”
(DE #25-2, p. 21, 23.)
Defendant also has a
policy in place that three violations of the rules may result in an
employee’s discharge.
(DE #25-2, p. 2.)1
Defendant has given “at least three employees, two of whom are
Hispanic, written warnings for failure to timely report a safety
violation.”
(DE #25-2, p. 5; DE #25-2, p. 35-37.)
However, none
of those employees were terminated because they did not commit
three violations within a six month period.
(DE #25-2, p. 5.)
Conversely, Defendant did terminate “at least three other Grinders
who committed three violations of [Defendant’s] work rules in six
1
The “Shop Rules and Regulations” also state that “[a]ny violation of
any of the . . . rules and regulations will subject the violating employee
with the disciplinary action that the Company deems appropriate in accordance
with the offense and under the circumstances that the offense was committed.
Furthermore, the listing of these specific rules of conduct and penalties does
not affect or limit the Company’s right to take such disciplinary action as it
deems appropriate in other cases of misconduct not so listed. Generally, such
disciplinary action includes written warnings, suspension, discharge, and such
other appropriate remedial actions as are deemed just and reasonable under the
circumstances.” (DE #25-2, p. 11.)
-5-
months that rose to the level of a written warning.”
(DE #25-2, p.
5.)
On August 8, 2007, Plaintiff injured his lower back while at
work.
(DE #25-1, p. 25-26.)
following
the
injury
but
He was on medical leave immediately
returned
to
light-duty
work
soon
afterwards, and Plaintiff’s doctor released him to work without any
restrictions by February 6, 2008.
(DE #25-1, p. 28-29; DE #27, p.
1.) The fax from Plaintiff’s physician to Defendant dated February
6, 2008, states Plaintiff’s work status as “[r]eturn to work
immediately (with regular duties).”
(DE #25-4, p. 3.)
In his
affidavit,2 Plaintiff states that since his return, he has been a
“qualified individual with a disability” and that his “said medical
disability condition was apparent to [Defendant] and accommodated
by
[Defendant]”
until
he
was
terminated.
(DE
#27,
p.
2.)
Plaintiff does not claim (nor does he present any evidence) that he
was under any restrictions from a physician or otherwise from
February 6, 2008, to and through the time of his termination.
(DE
#25-1, p. 64.)
In his affidavit, Plaintiff states that he “satisfactorily
performed [his] required employment duties notwithstanding [his]
aforementioned lower back disability condition.”
However,
Defendant
points
out
2
that,
during
(DE #27, p. 2.)
his
deposition,
The Court notes that Plaintiff’s affidavit was created and signed on
March 26, 2012, long after he gave his deposition on September 14, 2011.
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Plaintiff acknowledged that: (1) he was aware of the expected 80%
productivity standard; (2) that in January of 2010 he received
verbal warnings from his supervisor that his grinding rates needed
to improve; and (3) that his rates were as low as “66 or 67 and
then one time it went down to 30, 35 or 45 percent.”
(DE #25-1, p.
20, 33-34.) Plaintiff also testified that he was consistently told
to increase his production rates, both before and after his lower
back injury.3
(DE #25-1, p. 21.)
On February 8, 2010, Plaintiff received a written warning for
failing to use the company’s selected doctor to treat a work
related injury as per company policy; he also attended a meeting
with Stan Hueni, the Employee Relations Manager, and Carol Senour,
the Director of Human Resources, regarding that warning . (DE #251, p. 38-39.)
During the meeting, Plaintiff was reminded that he
was obligated to report work related injuries in a timely manner.
(DE #25-2, p. 4.)
Plaintiff,
The written warning itself, which was signed by
describes
that
Plaintiff
did
not
follow
proper
procedures and additionally states: “Gabriel - any time you are
hurt on the job, you must see Human Resources to get an appointment
with the company’s doctor.
If you are not satisfied with your
treatment, you must notify Human Resources immediately.” (DE #25-2,
p. 29.)
3
“Q: So every year that you were employed at BCI someone told you
that you needed to increase your production.
A: Yes.” (DE #25-1, p. 21.)
-7-
On February 16, 2010, Plaintiff received and signed another
written warning stating that his “grinding rates for February 8-13
were 42% and that is not satisfactory.
#25-2, p. 31.)
The standard is 80%.”
(DE
The warning goes on to state:
Gabriel - This is your second active written
warning which means that your job is on the
line until 8/8/10. Any violation of any work
rule will result in your termination.
This
includes your grinding numbers for this week
must be above 62% which you achieved January
25-29.
You must do this without hurting
yourself. Safety must always be your number
one priority!
(DE #25-2, p. 31.)
Plaintiff contends that it was his “clear
understanding” based on the written warning that he was on a
probationary
period
until
August
8,
2010.
(DE
#27,
p.
2.)
Plaintiff testified that he met with Stan Hueni regarding the
warning and that they also discussed his back.
43.)
(DE #25-1, p. 42-
The following exchange took place at the deposition:
Q: And during the meeting where you were given
[the written warning], did you tell Stan that
you had felt pain in your back when pushing
your weight into a stone a few days earlier?
A: Well, at that time I wasn’t by the stones,
I was actually grinding. But they were making
some heavy parts there.
Q: Okay.
And my only question is: Did you
tell Stan that you hurt your back during this
conversation on February 16, 2010.
A: Yes, I told him.
Q: And did you tell him that you had hurt your
back a few days before the conversation?
-8-
A: Well, the pain has always been there. But,
actually, the day before of me – we were
actually working with heavy parts, and I went
home feeling tired and achy and sore from the
heavy parts.
So that day it was Stan and
Pedro [Lopez] that was there – I don’t know if
Dale was there or not – and I was explaining
to them that that had happened. So that day
they had actually had me working with the big
parts that went to the quality section, with
the hundred percent, those were returned back.
So then they changed us from that line to the
other so that we can complete, or finish, the
parts, to make sure that they were okay. So
then when they told me about this, that why
didn’t I do what I was supposed to do, that’s
– you know I was telling them that I was not
feeling well.
(DE #25-1, p. 132-33.) In his affidavit, Stan Hueni states that he
was “shocked and upset” to learn that Defendant had again violated
the immediate-reporting requirement, especially since Plaintiff had
been reminded of the policy at the meeting the week before.
#25-2, p. 4.)
(DE
Stan Hueni indicates that this violation “rose to
the level of a written warning.”
(DE #25-2 p. 4.)
Subsequently,
Stan Hueni consulted with Carol Senour about the incidents, and she
made the decision to terminate Plaintiff’s employment.
(DE #25-2,
p. 5.) Plaintiff was given a letter dated February 18, 2010, which
states:
It was necessary to terminate your employment
. . . because you had two active written
warnings which put your job on the line. You
then had a safety violation when we became
aware that you hurt yourself while stand
grinding and by your own admission did not
tell anyone. Pedro Lopez was both witness and
translater (sic) to this issue. You are well
aware of the necessity to report an injury
-9-
immediately and have been advised of this
numerous times.
(DE #25-2, p. 5, 33.)
In his affidavit, Plaintiff denies that he
injured himself while stand grinding and further denies that he
“did not tell anyone” about the “non-event.”
(DE #27, p. 3.)
When asked about his Title VII claims during the deposition,
the following exchange took place:
Q: And I understand from this Complaint that
you’re claiming that [Defendant] discriminated
against you because of your national origin,
correct?
A: Yes.
Q: Okay.
So does that mean you believe
[Defendant’ discriminated against you because
you’re from Mexico?
A: I don’t think so. But I believe that – I
don’t think so. But I believe it’s because I
had gotten hurt and I wasn’t able to produce
what they wanted.
Q: Do you think anybody at [Defendant] had a
problem with you because you’re Hispanic?
A: Well, no. I mean, there was a guy there.
But, I mean, is it – I don’t think it’s
because I was talking Spanish, no.
Q: Did any managers ever say or do anything to
suggest they didn’t like you because you’re
Hispanic?
A: Not that I know of, no.
(DE
#25-1,
p.
53-54.)
Plaintiff
also
testified
that
his
supervisors told both Caucasian and Hispanic employees to increase
production.
(DE #25-1, p. 17-18.)
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In
his
affidavit,
Plaintiff
claims
that
Stan
Hueni
discriminated against him on the basis of his national origin by
selecting a translator named Pedro Lopez for the February 16, 2010,
meeting.
(DE #27, p. 4.)
Plaintiff states that Pedro Lopez was
being trained for a managerial position and therefore had a “motive
for flawed translation” because Pedro Lopez was in a “conflicted
position to gain from my termination, as he would be dually serving
the managerial position of [Defendant] supervisors (including
Stanley
Hueni)
translator.”
while
purportedly
(DE #27, p. 4.)
serving
as
my
unbiased
He also notes that the February 16,
2010, meeting was not video or audio recorded.
(DE #27, p. 4.)
Plaintiff provides no additional information or evidence in support
of his claim of national origin discrimination.
In its reply
brief, however, Defendant points out that Plaintiff was asked about
Pedro Lopez during his deposition:
Q: Do you have any facts or information
suggesting that management wanted Mr. Lopez to
give a flawed translation?
A: No.
I don’t think so.
Q: Do you have any facts or information
suggesting that management knew Mr. Lopez gave
a false translation?
A: No, I don’t know if they knew or – I don’t
know if they knew or not.
(DE #29-1, p. 3.)
-11-
Title VII Claims
National Origin Discrimination
Title
VII
discriminating
prohibits
“against
employers
any
from
individual
firing
with
or
otherwise
respect
to
his
compensation, terms, conditions, or privileges of employment”
because of an employee’s national origin.
See 42 U.S.C. §§
2000e–2(a)(1). A plaintiff alleging national origin discrimination
may proceed either under the direct method of proof or under the
indirect burden-shifting method familiarized by McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972).
See Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 702 (7th
Cir. 2012).
Using the direct method, “[a] plaintiff must produce
either direct or circumstantial evidence that would permit a jury
to
infer
action.”
that
discrimination
motivated
an
adverse
employment
Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th
Cir. 2011).
The proffered evidence must “‘point directly’ to a
discriminatory reason for the employer’s action.” Atanus v. Perry,
520 F.3d 662, 671 (7th Cir. 2008) (citation omitted).
A Plaintiff
proceeding under the indirect method, on the other hand, must
provide evidence that: (1) he is a member of a protected class; (2)
he was meeting the employer’s legitimate employment expectations;
(3) he suffered an adverse employment action; and (4) similarly
situated employees outside of the protected class were treated more
favorably.
Naficy v. Illinois Dept. of Human Services, --- F.3d
-12-
----, 2012 WL 4070115, *5 (7th Cir. Sept. 18, 2012).
Once the
plaintiff establishes a prima facie case, the defendant must then
provide a legitimate, nondiscriminatory reason for the employment
action.
Id.
At that point, a plaintiff can only avoid summary
judgment by presenting evidence suggesting that the defendant’s
stated reason is pretextual.
Id.
Plaintiff cites the McDonnell Douglas method in reference to
establishing a prima facie case of ‘employment discrimination on
the basis of disability’ but fails to substantively provide any
type of analysis on his Title VII claims; the Court can only assume
that he is intending to bring his Title VII claims under the
indirect method as well.
In any event, his claims clearly fail
under the direct method, as Plaintiff points to no evidence in the
record to suggest that his termination occurred because of his
nationality.
The scattered references to Plaintiff’s Hispanic
origin and unsupported assertions that he was discriminated against
do
nothing
to
allow
a
reasonable
inference
to
be
made
that
Defendant’s real reason for terminating Plaintiff was bound up with
his nationality.
Furthermore, Plaintiff specifically testified at
his deposition that he did not believe Defendant discriminated
against him because he was from Mexico, that he didn’t think anyone
employed by Defendant had an issue with his nationality, and that
no managers ever said or did anything to suggest that they didn’t
-13-
like him because he was Hispanic.
His claim fails as a matter of
law under the direct method of proof.
Under
the
indirect
method,
even
assuming
arguendo
that
Plaintiff is able to establish the first three elements of a prima
facie case of national origin discrimination, his claim ultimately
fails because he does not identify any similarly situated employee
outside of the protected class who was treated more favorably.
In
a section titled “Citations Relative to the McDonnell Douglas
Model,” Plaintiff references his own affidavit and that of Stan
Hueni as establishing a “trio of similarly situated” co-workers
“who were not ADA-disabled (‘three employees, two of whom are
Hispanic’).”
However,
the
relevant
portion
of
Stan
Hueni’s
affidavit only establishes that three (unidentified) employees were
given written warnings for failing to report a safety violation,
but that they were not terminated because none of them had three
rules violations. Plaintiff’s affidavit does not shed any light on
the specifics of these or any other co-workers; he vaguely alleges
that “at least one of [his] co-workers” was similarly situated with
him, but he does not expand upon this contention.
In fact,
Plaintiff fails to reference any similarly situated employee by
name (or even by job description) and fails to provide any relevant
details in support of his position.4
4
Simply put, the record does
In his own affidavit, Plaintiff laments that the names of the
employees have been redacted in the “written warnings” documents that
Defendant attaches in support of its Motion for Summary Judgment. However,
Plaintiff’s failure to conduct relevant and appropriate discovery of his own
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not show that this vague “trio” of employees was similarly situated
to Plaintiff, as Plaintiff does not provide any evidence whatsoever
of a non-Hispanic employee with three violations who was not
terminated.
See
Atanus,
520
F.3d
at
673
(a
plaintiff
must
establish that “members of the comparative group are directly
comparable to [him] in all material respects,” and he can show that
by providing evidence of “whether the employees reported to the
same supervisor, whether they were subject to the same standards
and
whether
they
had
comparable
education,
experience
and
qualifications”) (internal quotation marks and citations omitted).
Had Plaintiff been able to establish a prima facie case,
however, his claim would still fail.
Defendant has articulated a
legitimate non-discriminatory reason for Plaintiff’s termination:
Plaintiff
received
subsequently
two
discovered
active
that
written
he
warnings,
committed
a
and
safety
because he was injured and failed to tell anyone.
it
was
violation
In his response
brief, Plaintiff cursorily states that the “clear instance” of
national origin discrimination occurred when Defendant selected
Pedro Lopez as a “patently biased translator” during the February
16, 2010, meeting and failed to preserve the meeting via audio or
visual recording.
Although Plaintiff’s argument is difficult to
follow, he seems to suggest that Defendant’s stated reason for
and provide it to the Court in support of his response brief is not the fault
of Defendant.
-15-
termination is pretextual because Pedro Lopez was being trained for
a managerial position at the time of the meeting and was thus
biased against Plaintiff in some unspecified way.
Because of such
bias, Plaintiff asserts, Pedro Lopez provided Defendant with a
flawed
translation
during
the
meeting.
Plaintiff
does
not,
however, describe what the flawed translation allegedly was nor how
it affected the outcome of the meeting.
In fact, when asked about
Pedro Lopez during his own deposition, Plaintiff admitted that he
had no evidence to suggest that management wanted Pedro Lopez to
give a flawed translation or that management knew the translation
was in fact incorrect.
Even if the Court takes Plaintiff at his
word that the translation was somehow flawed and that Defendant
relied
on
the
flawed
translation
to
form
the
basis
of
his
termination, Plaintiff has not provided any evidence to show that
Defendant’s reason for terminating him was pretextual rather than
based on an honestly held belief that he had again failed to report
a work-related injury.
895,
901-02
(7th
Cir.
See Stockwell v. City of Harvey, 597 F.3d
2010)
(plaintiff
“must
show
that
the
employer’s reason is not credible or factually baseless” and must
also “provide evidence that supports the inference that the real
reason was discriminatory”); Ptasznik v. St. Joseph Hosp., 464 F.3d
691, 696 (7th Cir. 2006) (“An employer’s mistaken belief that the
plaintiff’s conduct merited termination is not unlawful, so long as
the belief was honestly held.”).
-16-
See also Grigsby v. LaHood, 628
F.3d 354, 360 (7th Cir. 2010) (plaintiff must show pretext by a
preponderance of the evidence). Finally, Plaintiff’s argument that
the fact that the meeting was not audio or video recorded shows
“heightened” bias or animus is a non-starter.
He does not provide
any evidence, or even suggest in his affidavit for that matter,
that Defendant had a policy of recording such meetings or that a
recording of the meeting ever existed but was later concealed by
Defendant.
He does nothing to explain how this recording (or lack
thereof) provides evidence of pretext in any way.
See Long v.
Teachers' Ret. Sys. of Ill., 585 F.3d 344, 349 (7th Cir. 2009)
(“[U]nsupported
and
underdeveloped
arguments
are
waived.”)
(citation and internal quotations omitted).
ADA Claims
Under
the
ADA5,
it
is
unlawful
for
an
employer
to
“discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training,
and
employment.”
other
terms,
conditions,
42 U.S.C. § 12112(a).
and
privileges
of
To be successful on an ADA
claim, a plaintiff must show: “1) that she is disabled; 2) that she
notes
2009,
Court
Inc.,
5
Although neither party specifically addresses the issue, the Court
that because the alleged discrimination took place after January 1,
the ADA Amendments Act of 2008 (“ADAAA”) controls this case, and the
will apply these standards accordingly. See Powers v. USF Holland,
667 F.3d 815, 823, n. 7 (7th Cir. 2011).
-17-
is otherwise qualified to perform the essential functions of the
job with or without reasonable accommodation; and 3) that the
employer took an adverse job action against her because of her
disability or failed to make a reasonable accommodation.”
Feldman
v. Olin Corp., ---F.3d----, 2012 WL 3641774, *3 (7th Cir. August
27, 2012) (citing Stevens v. Illinois Dep’t of Transp., 210 F.3d
732, 736 (7th Cir. 2000)).
distinct
categories
of
The Seventh Circuit has recognized
discrimination
claims
under
including failure to accommodate and disparate treatment.
the
ADA
Basith
v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001); see also Powers
v. Holland, 667 F.3d 815, 819 (7th Cir. 2011).
To succeed on
either type of claim, a plaintiff must demonstrate that he is
disabled under the meaning of the ADA.
“Merely having a physical
injury or a medical condition is not enough.”
Id. (citing Burnett
v. LFW, Inc., 472 F.3d 471, 483 (7th Cir. 2006).
The ADA defines “disability” with respect to an individual as
(A) “a physical or mental impairment that substantially limits one
or more major life activities of such individual”; (B) “a record of
such an impairment”; or (C) “being regarded as having such an
impairment.”
42 U.S.C. § 12102(1).
Plaintiff alleges in his complaint that he is a “qualified
individual
with
a
disability”
and
that
his
disability
was
“consistently accommodated” by Defendant for approximately two and
a half years before he was terminated in “direct violation of the
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‘reasonable accommodation’ provisions of the ADA.”
He reiterates
this position in his response brief, and further asserts in his
affidavit that his disability was “apparent to [Defendant], and
accommodated by [Defendant].”
Plaintiff’s affidavit also states
that Defendant “ceased to accommodate [his] lower back disability
condition” when he was terminated.
Failure to Accommodate
In order to succeed on a failure to accommodate claim under
the ADA, “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.”
Kotwica v. Rose Packing Co., Inc., 637 F.3d 744,
747-48 (7th Cir. 2011) (citing EEOC v. Sears, Roebuck & Co., 417
F.3d 789, 797 (7th Cir. 2005)).
As to the second prong, the
Seventh Circuit has noted that it is the initial responsibility of
the plaintiff to inform his employer of the disability at issue in
a failure to accommodate claim.
Beck v. Univ. of Wis. Bd. of
Regents, 75 F.3d 1130, 1134 (7th Cir. 1996) (“An employer that has
no knowledge of an employee’s disability cannot be held liable for
not accommodating the employee.”). With regard to the third prong,
the parties must “engage in an interactive process to determine a
reasonable accommodation.”
Sears, Roebuck & Co., 417 F.3d at 797
(citing Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th Cir.
-19-
1998)).
Recent case law provides that this interactive process
consists of a give and take between the employer and the employee;
for example:
[a]n employer can take no solace in its
failure to engage in this process in good
faith if what results is an unreasonable or
inappropriate accommodation offer.
And an
employee who fails to uphold her end of the
bargain—for example, by not clarifying the
extent of her medical restrictions—cannot
impose liability on the employer for its
failure to provide a reasonable accommodation.
Hoppe v. Lewis University, --- F.3d ----, 2012 WL 3764717, *5 (7th
Cir. August 31, 2012) (citations and quotation marks omitted).
Ultimately, a reasonable accommodation occurs when an employer
“does what is necessary to allow the employee to work in reasonable
comfort.”
Id.
Assuming for now that Plaintiff meets the first prong, he
fails as to the second and third prongs.
In his affidavit,
Plaintiff states that his medical condition was “apparent” to
Defendant. However, he does not provide any admissible evidence in
support of this assertion.
As Defendant points out, the record
establishes that after Plaintiff was injured, he was placed on
light-duty work for a time by his physician. He was later released
to work without any restrictions by that same physician on February
6,
2008.
Plaintiff
does
not
claim
that
he
was
under
any
restrictions from February 6, 2008, to and through the date of his
termination, and he does not assert that he told or otherwise
-20-
affirmatively made Defendant aware of his disability. This failure
on Plaintiff’s part, coupled with the doctor’s diagnosis indicating
that he could return to work immediately with regular duties, did
not put Defendant on notice that Plaintiff had a disability in need
of accommodation.
Furthermore, Plaintiff states in his affidavit that, because
he performed his required duties for approximately two and a half
years following his back injury, the disability was necessarily
accommodated by Defendant.
In his response brief he argues that
“such obvious ADA accommodation” contradicts Stan Hueni’s affidavit
statement that Defendant was unaware of a request for accommodation
made by Plaintiff.
However, Plaintiff provides no details as to
what the alleged accommodation consisted of, how the accommodation
related to his disability, what accommodation he requested of Stan
Hueni or any other supervisor, when he allegedly requested this
unspecified accommodation, or how Defendant failed to reasonably
accommodate his disability.6
Nothing in the record shows that
Plaintiff sought an accommodation from Defendant at all.
In fact,
the evidence presented shows that the fax from Plaintiff’s doctor
6
Plaintiff seems to be suggesting that Defendant failed to reasonably
accommodate his disability when he was terminated; however, as Defendant
points out, the discharge itself cannot be construed as the failure to
reasonably accommodate him under the facts presented in this case. See
Gittings v. Tredegar Corp., 2010 WL 4930998, *7 (N.D. Ill. Nov. 29, 2010)(“It
distorts the concept of reasonable accommodation beyond all recognition to
suggest that if an employee simply requests continued employment, the denial
of that request—in the form of a termination—may form the basis of an
accommodation claim.”)
-21-
released him to work with no restrictions.
It is unclear to the
Court why, based on the doctor’s information and receiving no
request for accommodation from Plaintiff, Defendant could or should
have provided a reasonable accommodation to Plaintiff.
See Hoppe,
2012 WL 3764717 at *5 (“The undisputed evidence in the record shows
that
[plaintiff]
did
not
provide
the
[defendant]
with
the
information it needed and requested and [t]he [defendant] therefore
is entitled to judgment as a matter of law.”)
Disability Discrimination
A
directly
plaintiff
or
may
prove
indirectly.
disability
Dickerson
v.
discrimination
Board
of
either
Trustees
of
Community College Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011)
(citing Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir.
2000)).
Here, the Plaintiff chooses to proceed under the indirect
method of proof.
Under this method, a prima facie case of
discrimination must first be established by providing evidence
that: (1) he is disabled pursuant to the provisions of the ADA; (2)
he was meeting the legitimate employment expectations of the
defendant; (3) he was subject to an adverse employment action; and
(4) similarly situated employees without a disability were treated
more favorably.
Id. (citing Lloyd v. Swifty Transp., Inc., 552
F.3d 594, 601 (7th Cir. 2009).
After a prima facie case has been
shown by the evidence, the defendant must present a “legitimate,
-22-
non-discriminatory
reason
for
its
employment
decision.”
Id.
(citing Rooney v. Koch Air, LLC, 410 F.3d 376, 381 (7th Cir.
2005)).
At that point, the burden shifts back to the plaintiff to
show, by a preponderance of the evidence, that the defendant’s
proffered reasons are nothing but a pretext for discrimination.
Id.
“Although intermediate burdens shift back and forth under the
McDonnell Douglas framework, the ultimate burden of demonstrating
that the defendant intentionally discriminated always remains with
the plaintiff.”
Hudson v. Chi. Transit Auth., 375 F.3d 552, 561
(7th Cir. 2004).
Here, Defendant argues that Plaintiff has established neither
a prima facie case nor pretext of discrimination. It is undisputed
that Plaintiff suffered an adverse employment action when he was
terminated.
Assuming for purposes of this section that Plaintiff
is disabled under the ADA,7 he still fails to establish the
necessary prima facie case. First, Plaintiff does not point to any
similarly situated employees who were treated more favorably than
him.
As noted in more detail in the Title VII section above,
Plaintiff cites to his own affidavit as well as that of Stan Hueni
7
As noted in a previous footnote, effective January 1, 2009, Congress
amended the ADA to “[reinstate] a broad scope of protection.” See ADA
Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110–325, 122 Stat. 3553 (2008).
The ADAAA states that “it is the intent of Congress that the primary object of
attention in cases brought under the ADA should be whether entities covered
under the ADA have complied with their obligations. ...” Id. at 3554.
Therefore, the “question of whether an individual’s impairment is a disability
under the ADA should not demand extensive analysis.” Id. In keeping with the
clear directive of the ADAAA and recognizing that Plaintiff’s claims fail for
various other reasons, the Court will not engage in an analysis of Plaintiff’s
alleged disability.
-23-
to show a “trio” of similarly situated non-disabled co-workers who
were not terminated.
However, the affidavits in question do not
establish the evidence he is attempting to assert in his response
brief.
Stan Hueni’s affidavit and supporting documents provide
only that “at least three employees, two of whom are Hispanic” and
one who had “sustained a work-related back injury” received written
warnings for failing to report a safety violation.
However, Stan
Hueni’s affidavit also provides that none of those employees were
terminated because they had not committed multiple violations of
the work rules in a six-month period.
Plaintiff does not present
any evidence to show that a similarly situated non-ADA disabled
employee who committed multiple rules violations warranting written
reprimands over a six-month period was allowed to continue working
rather than being terminated.
In fact, Plaintiff cites to no
particular employee whatsoever and provides none of the relevant
and necessary details.
See Atanus, 520 F.3d at 673 (a plaintiff
must establish that “members of the comparative group are directly
comparable to [him] in all material respects.”)
See also Burks v.
Wisconsin Dept. of Transp., 464 F.3d 744, 751 (7th Cir. 2006) (“We
have cautioned that, in order to show that a coworker is similarly
situated to a terminated employee, the employee must show that the
other coworker had a “comparable set of failings.”)
Plaintiff
also
fails
to
show
that
he
was
meeting
the
legitimate employment expectations of the defendant, either with or
-24-
without the alleged (but unspecified) accommodations.
He cites
only to his own affidavit to state generally that he was performing
his job duties satisfactorily, but he provides no other evidence to
support this contention.
More importantly, he does not dispute
that he himself testified that he was aware of the stated 80%
production productivity standard, that he consistently (both before
and after his back injury) received direction from Defendant to
increase his production rates, and that in the weeks prior to his
termination he received specific warnings because his rates were as
low as “30, 35, or 45 percent.”
He also does not dispute that he
received a written warning on February 16, 2010, stating that his
“grinding
rates
satisfactory,”
for
nor
February
does
he
8-13
were
assert
42%
that
and
the
that
is
grinding
not
rate
information contained within the written warning was incorrect.
Based on the record, Plaintiff has not established that he was
meeting Defendant’s legitimate employment expectations during the
period preceding his termination.
See Dickerson v. Board of
Trustees of Community College Dist. No. 522, 657 F.3d 595, 603 (7th
Cir. 2011) (plaintiff’s discrimination claim was not able to
survive summary judgment because his “own evaluation of his work”
could not properly be imputed to defendant). Thus, for the reasons
stated above, Plaintiff has failed to establish a prima facie case
of discrimination, and his claims fail as a matter of law.
-25-
Furthermore, even assuming that Plaintiff had been able to
present a proper prima facie case, he does not provide sufficient
evidence of pretext.
Defendant has articulated a legitimate, non-
discriminatory reason for terminating Plaintiff -- namely that he
had two active written warnings and then committed an additional
safety violation by not reporting a work-related injury.
As noted
above, in his affidavit, Plaintiff denies that he was injured while
stand grinding and further denies that he failed to tell anyone
about the “non-event.”
He asserts that Defendant’s position that
he was terminated because of these violations is pretextual, but he
does not expand upon this assertion in any meaningful manner.
In
any event, Plaintiff fails to acknowledge that his own deposition
testimony establishes that, during the February 16, 2010, meeting,
Plaintiff told Stan Hueni that he had hurt his back while grinding
and admitted that he didn’t do what he was supposed to do to report
the incident.
Therefore, to the extent that Plaintiff is claiming
that Defendant’s proffered reason is an unsupported “lie rather
than an oddity or an error,” this claim is contradicted by the
record.
Faas v. Sears, Roebuck & Co., 532 F.3d 633, 642 (7th Cir.
2008); see also Filar v. Bd. of Educ. of City of Chicago., 526 F.3d
1054, 1063 (7th Cir. 2008) (pretext requires “[p]roof that the
defendant's explanation is unworthy of credence.”)
Although Plaintiff points vaguely to an allegedly flawed
translation by Pedro Lopez and the fact that the final meeting was
-26-
not video or audio recorded as further evidence of pretext, these
assertions are not supported by the record (as is described in
detail above in the Title VII section) nor do they in any way point
to
disability
based
discrimination
Plaintiff’s termination.
as
the
true
reason
for
Even assuming that the translation of
Pedro Lopez was flawed in some way, Plaintiff does not provide any
evidence to suggest that Defendant’s reliance on the translation
was ill-considered or unreasonable.
In sum, Plaintiff presents no
admissible evidence that would allow a reasonable jury to infer
that the true reason for Defendant’s termination of Plaintiff was
based on a prohibited discriminatory animus; thus, he has not
established that any pretext existed.
See Benuzzi v. Board of
Educ. of City of Chicago, 647 F.3d 652, 663 (7th Cir. 2011) (citing
McGowan v. Deere & Co., 581 F.3d 575, 581 (7th Cir. 2009)(a
plaintiff “must do more than simply allege that an employer's
stated
reasons
are
inaccurate;
[s]he
must
still
have
some
circumstances to support an inference that there was an improper
motivation proscribed by law”)); see also Yindee v. CCH Inc., 458
F.3d 599, 602 (7th Cir. 2006) (“It is not enough to demonstrate
that the employer was mistaken, inconsiderate, short-fused, or
otherwise benighted; none of those possibilities violates federal
law.”)
-27-
CONCLUSION
For the reasons set forth above, Defendant’s Motion for
Summary Judgment is GRANTED.
The Clerk is ORDERED to DISMISS THIS
CASE WITH PREJUDICE.
DATED: September 28, 2012
/s/RUDY LOZANO, Judge
United States District Court
-28-
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