Mazzacone v. Tyson Fresh Meats Inc et al

Filing 29

OPINION AND ORDER: GRANTING 27 MOTION for Leave to File Excess Pages in Response to Motion for Summary Judgment by Plaintiff Ronald Mazzacone and DENYING 23 MOTION for Summary Judgment by Defendants Tyson Foods Inc, Tyson Fresh Meats Inc. The Court SETS a Telephonic Status/scheduling Conference for 3/24/2016 10:00 AM in US District Court before Judge Theresa L Springmann. The Court will initiate the call. Signed by Judge Theresa L Springmann on 2/29/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
RONALD MAZZACONE,
Plaintiff,
v.
TYSON FRESH MEATS, INC., and
TYSON FOODS, INC.,
Defendants.

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CAUSE NO.: 3:13-CV-897-TLS

OPINION AND ORDER
The Plaintiff, Ronald Mazzacone, is suing his former employer, Tyson Fresh Meats, Inc.
and Tyson Foods, Inc. (collectively, Defendants) under the Americans with Disabilities Act (the
ADA) for a failure to accommodate his disability and per se discrimination based on a 100%
healed policy.1 The Defendants have filed a Motion for Summary Judgment [ECF No. 23]. For
the reasons stated in this Opinion and Order, the Court denies the Defendants’ Motion.

BACKGROUND
The Defendants are producers of chicken, beef, and pork products throughout the United
States. The Plaintiff began working at the Defendants’ pork production plant in Logansport,
Indiana, in June 2008. He was hired as a “No Jobber” (or “Laborer”), a position that entails
floating between various departments to provide support as needed.

1

To the extent the Plaintiff’s Complaint [ECF No. 1] raises a claim of discrimination under the
ADA, such a claim has been waived. See Sanders v. Vill. of Dixmoor, Ill., 178 F.3d 869, 870 (7th Cir.
1999) (finding that the plaintiff waived a Title VII claim after he failed to address the claim when
responding to the defendant’s summary judgment motion).

A.

Slip-and-Fall Incident
In early 2010, the Plaintiff was placed in a position called “Manifest on Kill Floor,”

which entails separating four different parts of the hog and placing them (along with dry ice) into
boxes. The Plaintiff claims that on August 6, 2010, while attempting to fill a 50-gallon barrel
with dry ice, he slipped, fell, and sustained injuries to his neck and lower back. As a result, the
Defendants granted the Plaintiff a leave of absence until September 14, 2010.2
Upon his return to work, the Plaintiff was placed in several light-duty positions,
including positions called “Pick Lean” (the separation of fat from small pieces of meat) and
“Monitor Fecal” (the inspection of hogs for fecal material). The Plaintiff testified that he could
not perform either position due to his neck injury; so therefore, he was placed in a “freezer”
position. (Pl.’s Dep. 86.) However, after only three hours at the freezer position, he allegedly fell
to the floor and was carried upstairs to the head supervisor. According to the Plaintiff, the head
supervisor assigned him to a variety of “Monitor” positions (i.e., the monitoring of a dock,
elevator, trolley room, and other locations), which the Plaintiff performed for roughly two
months.
In November 2010, the Plaintiff’s physician, Dr. John Gorup (orthopaedic surgeon)
informed the Plaintiff that his neck injury required surgery. The Plaintiff agreed to the surgery
and requested another leave of absence on November 11, 2010. The Defendants granted the
request, but denied that the Plaintiff’s neck injury was related to the slip-and-fall incident on

2

The Defendants’ written employment policy permits employees to take up to one year of unpaid
leave for both work-related and non work-related medical conditions. The policy also permits the
termination of employment if an employee fails to return to work or fails to obtain an extension for leave
prior to its expiration. Leave may be extended beyond one year if the employee provides medical
documentation to justify additional leave.

2

August 6, 2010.

B.

Requests for Light-Duty Work
During the Plaintiff’s leave of absence—which began on November 23, 2010, and ended

upon his termination in December 2011—he provided the Defendants with a monthly
certification (i.e., the Defendants’ “Return to Work Certification”) signed by his medical
provider, as required by the Defendants’ written employment policy. Each certification
contained the following question:
Is the Team Member able to return to work and meet the attendance standards and
perform the functions on the attached description without posing a significant risk
of substantial harm to the Team Members or others?3
See, e.g., Return to Work Certification, Feb. 3, 2011, ECF No. 25-2 at 9. On certifications dated
January 3 and February 3, 2011, Dr. Gorup answered “no” to the above question; and on a
certification dated February 24, 2011, Dr. Michael Highhouse (orthopaedic surgeon) also
answered “no.” After receiving each certification, the Defendants extended the Plaintiff’s leave
of absence.
However, on the next certification, dated March 11, 2011, Dr. Gorup indicated that the
Plaintiff could return to work on March 14, 2011, with the following restrictions: “no pushing or
pulling and no lifting over 5 lbs with left arm.”4 (ECF No. 26-2 at 10.) The Plaintiff claims that
on or about March 15, 2011, he delivered the certification to the Defendants; spoke with Marsha

3

Although the question refers to an “attached [job] description,” none of the certifications in the
record include such an attachment.
4

The Plaintiff indicates that Dr. Gorup’s reference to the left arm was a mistake—the Plaintiff’s
restriction relates to his right arm.

3

Thatcher, the Assistant Complex HR Manager; and requested a return to light-duty work.
Thatcher allegedly informed the Plaintiff that she was told by Kelly Robertson, Sr., the Human
Resources Manager, that “light-duty work is only for people who got hurt on the job, and since
[the Plaintiff’s neck injury] is not job related,” no light-duty position is available. (Pl.’s Dep.
167.) Thatcher then informed the Plaintiff that unless he could perform a “full-duty job,” he
could not return to work. (Id. at 168.) The Defendants proceeded to extend the Plaintiff’s leave
of absence until May 5, 2011.
According to the Plaintiff, he had a second conversation with Thatcher in April 2011.
When the Plaintiff inquired whether any light-duty jobs were available, Thatcher responded, “I
told you last month that . . . Robertson said you’re not getting light-duty work. You didn’t get
hurt here. You have to come back to work ready to do a full-time job.” (Id. at 182.) The Plaintiff
explained to Thatcher that he was without health insurance and was having difficulty finding a
doctor to evaluate him.5 The Plaintiff claims that, during the meeting, Thatcher informed him
that his leave would not be extended past one year.
Then, on May 5, 2011, Dr. Gorup signed and submitted a certification for the
Plaintiff—only this time, it indicated that the Plaintiff could not return to work. The Plaintiff said
he received no treatment from March 11, 2011, through May 5, 2011; and did not request the
certification from Dr. Gorup. The Plaintiff testified in his deposition that he believed the
Defendants requested the certification from Dr. Gorup. (Id. at 185–86 (“[Counsel:] Did Marsha
Thatcher ever tell you that she called Dr. Gorup’s office to request [the May 5 certification]?
5

The Plaintiff testified that, by this time, he had stopped seeing Drs. Gorup and Highhouse. See
Pl.’s Dep. 169 (“I was done seeing Dr. Gorup. He said he’d done all that he could. Plus, I couldn’t pay
this Highhouse guy. I was going to have to find some specialist that would take me somehow and see
what he could do with me.”).

4

[Plaintiff:] For some reason I’m going to say yes, she did. I believe that’s why that’s the last time
she ever saw me, and Kelly Robertson took over from there.”).) The Defendants extended the
Plaintiff’s leave of absence through June 9, 2011.
In June 2011, the Plaintiff allegedly met with another female employee of the Defendants
(who he was unable to identify by name). The Plaintiff said he informed the employee that he
found a new doctor, Dr. Leny Philip (internal medicine physician), but was unable to see Dr.
Philip until July. Dr. Philip conducted an evaluation of the Plaintiff in July (and again in
August), and determined that the Plaintiff was unable to return to work. This resulted in
additional extensions of the Plaintiff’s leave of absence through September 1, 2011.
During this time, the Plaintiff met with Robertson and asked if any light-duty work was
available, to which Robertson allegedly responded, “You’ll. Never. Get. Light. Duty . . . If you
want to come back, you know what [the work certification must] say. We’ve told you every
month.” (Id. at 206.) Dr. Philip submitted two additional certifications on October 3 and
November 2, 2011, both representing that the Plaintiff was unable to return to work; and the
Defendants extended the Plaintiff’s leave of absence through November 28, 2011.

C.

Termination
In a letter dated November 10, 2011, the Defendants informed the Plaintiff that, pursuant

to their written employment policy, his leave of absence would expire on November 28, 2011,
and that he must “provide a return to work certification from [his] health care provider
confirming that [he is] able to perform the essential functions of [his] position.” (ECF No. 25-2
at 27.) The Defendants warned that a failure to provide the updated medical documentation or

5

contact them within two weeks would lead to termination.
On or about December 5, 2011, the Plaintiff met with Robertson and presented a
certification, dated December 1, 2011, in which Dr. Philip indicated that the Plaintiff was able to
return to work with the following restrictions: no stretching of his right arm and shoulder, and no
lifting of more than 20 pounds. (ECF No. 26-3 at 13.) At his deposition, Robertson said he
informed the Plaintiff that, based on the restrictions articulated by Dr. Philip, he could perform
his full-time job (i.e., “Manifest on Kill Floor”) because the job did not require him to reach
above the shoulder. But according to Robertson, the Plaintiff expressed doubt that he could
perform the job because it may “hurt his arm.” (Robertson Dep. 27.) The Plaintiff then allegedly
told Robertson that he would get back to him after he attended a doctor’s appointment scheduled
for that day.
The Plaintiff, however, offered a contrasting version of the above events:
[Counsel:] And when you gave [Robertson] the return to work [certification] from
Dr. Philip [on December 5, 2011], what did he say?
[Plaintiff:] “Vague. Vague. That’s too vague. I need specifics. Your arm. Your leg.
Your back. Everything. I need more specific clarification of this. This is much too
vague,” he said.
[Counsel:] What did you say?
[Plaintiff:] “Give me another [certification], and I’ll go back and see [Dr. Philip]
again next week.”
*

*

*

[Counsel:] Did you and Kelly Robertson have any other conversation . . . [or] talk
about anything else?
[Plaintiff:] Well, just that I needed to do this as quick as I could and get it back
there because, “You know, your time is up already. I’m going to extend [your
leave of absence] for a few more weeks just so you can get this clarified, but that’s
it. You’re not getting any more time.”
(Pl.’s Dep. 240–41.) The Plaintiff testified that he went back to Dr. Phillip, who said he

6

would fax an updated certification to the Defendants.
Then, on December 19, 2011, Robertson reportedly sent a letter to the Plaintiff, which
stated in relevant part:
On 11/10/2011 I sent you notice that your approved [leave of absence] was to
expire on 11/28/2011. You were asked to contact me to discuss your status and/or
provide me with updated medical information and that failure to do so would result
in the termination of your employment with Tyson Foods. You did contact me and
we began an interactive process to determine if the company would be able to
accommodate the restrictions requested by your physician listed as:
1.
2.

No lifting more than 20 lbs.
No extension of right arm.

As of 12/6/2011, you were notified that the company would accommodate these
restrictions; however, you stated you were returning to the doctor on that day. You
have failed to contact us further. Because you have failed to contact me further,
you have been terminated from Tyson’s payroll; however, if there was some
reason or special circumstances that prevented you from contacting me prior to this
date, please call me.
(ECF No. 25-2 at 29 (slight modifications made for clarity).) According to Robertson, he
received no further communication from the Plaintiff or Dr. Philip regarding the Plaintiff’s work
restrictions.
The Plaintiff, on the other hand, testified that he never received the December 19 letter.
He also testified, contrary to Robertson’s testimony, that he and Robertson had four additional
communications in December 2011 (two telephone conversations and two additional meetings).
In the first telephone conversation, which he maintains occurred after December 19, 2011, the
Plaintiff informed Robertson that Dr. Philip was planning to submit a revised certification,
prompting Robertson to give him “‘another day or two.’” (Pl.’s Dep. 243.) Then, in a second
telephone conversation, Robertson allegedly informed the Plaintiff that he received Dr. Philip’s
revised certification, and that he needed to speak to the Plaintiff in person. According to the
7

Plaintiff, the parties met, and Robertson stated that the certification “‘isn’t telling me anything’”
and “‘I’m going to have to let you go if you can’t get more specific.’” (Id. at 247.) The Plaintiff
said that Dr. Philip submitted (and Robertson received) another revised certification. The parties
met a final time on December 22, and according to the Plaintiff, he was terminated “[the]
minute” he arrived. (Id. at 250.)

D.

Procedural Background
On June 14, 2012, the Plaintiff filed a Charge of Discrimination against the Defendants

with the Indiana Civil Rights Commission (ICRC) and the Equal Employment Opportunity
Commission (EEOC). Notably, just a few months after filing the Charge of Discrimination, the
Plaintiff suffered a heart attack. Then, on August 27, 2012, the Plaintiff filed an application for
Social Security Disability; which was approved on August 23, 2013. The Social Security
Administration determined that the Plaintiff became disabled on August 6, 2010, the date of his
slip-and-fall incident.
On May 31, 2013, the EEOC issued the Plaintiff a Dismissal and Notice of Rights as to
his Charge of Discrimination; and on August 27, 2013, the Plaintiff filed this action against the
Defendants. On April 23, 2015, the Defendants filed a Motion for Summary Judgment [ECF No.
23], along with a Brief [ECF No. 24] and Designation of Evidence in Support of the Motion
[ECF 25]. On May 21, 2015, the Plaintiff filed a Response [ECF No. 26] and a Motion Seeking
Permission to File His Brief in Response in Excess of 25 Pages [ECF No. 27]; and on June 8,
2015, the Defendants filed a Reply [ECF No. 28]. These matters are now fully briefed and ripe

8

for ruling.6

SUMMARY JUDGMENT STANDARD
Summary judgment is warranted when “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). Summary judgment is the moment in litigation where the nonmoving party is
required to marshal and present the court with evidence on which a reasonable jury could rely to
find in his favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A court
should only deny a motion for summary judgment when the nonmoving party presents
admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs.,
652 F.3d 726, 731 (7th Cir. 2011) (citing United States v. 5443 Suffield Terrace, 607 F.3d 504,
510 (7th Cir. 2010); Swearnigen–El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852, 859 (7th Cir.
2010)). Material facts are those that are outcome determinative under the applicable law. Smith
v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention that an issue of material
fact exists is insufficient to create a factual dispute, a court must construe all facts in a light most
favorable to the nonmoving party, view all reasonable inferences in that party’s favor, see
Bellaver v. Quanex Corp., 200 F.3d 485, 491–92 (7th Cir. 2000), and avoid “the temptation to
decide which party’s version of the facts is more likely true,” Payne v. Pauley, 337 F.3d 767,
770 (7th Cir. 2003).

6

Because of the fact-intensive nature of the Plaintiff’s ADA claims, coupled with the Defendants’
lack of objection, the Plaintiff’s Motion Seeking Permission to File His Brief in Response in Excess of 25
Pages [ECF No. 27] is granted pursuant to Northern District of Indiana Local Rule 7-1(e)(2).

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ANALYSIS
To prevail on a failure to accommodate claim, a plaintiff must show that (1) he is a
“qualified individual with a disability”; (2) the defendant was aware of the disability; and (3) the
defendant failed to reasonably accommodate the disability. Majors v. Gen. Elec. Co., 714 F.3d
527, 533 (7th Cir. 2013); EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005).
While the parties agree that the Plaintiff has a disability for which the Defendants are
aware, their dispute centers upon whether the Plaintiff is a “qualified individual” and whether the
Defendants failed to reasonably accommodate the Plaintiff’s disability. The Plaintiff claims that
he is a qualified individual because, at the time of the relevant employment decisions, he was
able to perform light-duty work;7 and that the Defendants failed to provide a reasonable
accommodation after he submitted certifications indicating that he was able to return to work
with restrictions.

A.

Qualified Individual
An individual is only “qualified” under the ADA if he is able, “with or without

reasonable accommodation, [to] perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8). The ADA defines a “reasonable
accommodation” to include:
(A) making existing facilities used by employees readily accessible to and usable
by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a

7

At his deposition, the Plaintiff testified that he was unable to perform non light-duty jobs during
his leave of absence that occurred from November 23, 2010, through his termination in December 2011.

10

vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar accommodations
for individuals with disabilities.
42 U.S.C. § 12111(9) (emphasis added); Jackson v. City of Chi., 414 F.3d 806, 811 (7th Cir.
2005). Whether the plaintiff meets the “qualified individual with a disability” definition is
determined as of the time of the employment decision. Id. The plaintiff bears the burden of
showing that he is a qualified individual with a disability in order to successfully prosecute an
ADA claim. Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996) (citing DeLuca
v. Winer Indus., Inc., 53 F.3d 793, 797 n.3 (7th Cir. 1995)).

1.

Estoppel
As an initial matter, the Defendants argue that the Plaintiff’s representations before the

Social Security Administration (SSA) estop him from claiming that he is a “qualified individual”
under the ADA.
The Defendants note that, in his function report to the SSA, dated September 25, 2012,
the Plaintiff stated that he cannot “outstretch [his] right arm and lift over head,” “sit long because
of shoulder/neck pain,” or lift more than 10 pounds; that his right leg is “going completely numb
for hours at a time”; and that he can only pay attention for two hours at a time. (Def.’s Br.
10–11.; ECF No. 25-5 at 9–16.) The Defendants also point to a sworn affidavit from Robertson,
in which he testified that after “review[ing] the statements [the Plaintiff] made to the Social
Security Administration in 2012 regarding his restrictions stemming from his August 6, 2010
incident . . . there were no positions at Tyson, light duty or otherwise, that would have been able
to accommodate the restrictions as represented by [the Plaintiff].” (Robertson Aff. 3, ECF No.
11

25-4.)
But as the Plaintiff notes, an applicant’s claim of being disabled on an SSDI application
does not necessarily subject him to judicial estoppel on an ADA claim. See Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795, 802–03 (1999) (“[D]espite the appearance of conflict that arises
from the language of the two statutes, the two claims do not inherently conflict to the point
where courts should apply a special negative presumption.”); see also Feldman v. Am. Mem’l
Life Ins. Co., 196 F.3d 783, 790 (7th Cir. 1999); Weigel v. Target Stores, 122 F.3d 461, 468 (7th
Cir. 1997). When an apparent contradiction does arise out of an earlier SSDI application, a
plaintiff may avoid judicial estoppel by proffering a “sufficient explanation.” Cleveland, 526
U.S. at 805–06 (citation and internal quotation marks omitted).
To defeat summary judgment, [an] explanation must be sufficient to warrant a
reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s
good-faith belief in, the earlier statement, the plaintiff could nonetheless perform
the essential functions of her job, with or without reasonable accommodation.
Id. at 807 (internal quotation marks omitted).
Here, neither party disputes that in August 2012—prior to the Plaintiff’s application for
SSDI and eight months after his termination—he suffered a significant intervening medical
event: a heart attack. References to the heart attack and its effect(s) on the Plaintiff’s daily
functioning are littered throughout his SSDI application. For example, following an independent
medical examination of the Plaintiff, Dr. Robert Brewer indicated that the Plaintiff “is still in the
recovery stage of an acute myocardial infarction but is working at increasing his activity. He is
able to walk or stand only at intervals. He could do so with short periods of rest so he could do
so within the 2 hours of an 8 hour day. He can lift only 10 lbs or more if using both hands to
carry one object, however, with his right arm and hand he cannot lift alone any more than about
12

5 lbs.” (ECF No. 25-5 at 23); see also Pl.’s Function Report, ECF No. 25-5 at 10 (“since my
heart attack I’m having soreness in legs that prevent me from sleeping”)); id. at 15 (“[I] always
[handled stress] well until my heart attack.”); id. at 16 (“[I’m] having a lot of problems [with]
right leg going completely numb for hours at a time.”).
In short, the documented effects of the Plaintiff’s heart attack on his daily functioning
provide a reasonable explanation for any alleged inconsistencies between the Plaintiff’s
representations to the SSA and his representations pursuant to his ADA claim—and as such, are
enough to permit the Plaintiff to go forward with his claim that he was able to perform light-duty
work at the time of the relevant employment decisions in 2011.

2.

Light-Duty Work
Next, the Defendants argue that the Plaintiff is not a “qualified individual” because his

proposed accommodation—reassignment to a vacant light-duty position—is not a reasonable
accommodation under the ADA. See Gratzl v. Office of Chief Judges, 601 F.3d 674, 680 (7th
Cir. 2010) (“[Because the plaintiff] bears the burden of establishing that she can perform the
essential functions of her job with or without reasonable accommodation, she has not met this
burden if the only accommodation she has ever suggested is not reasonable.”) (internal citation
and quotation marks omitted).
Indeed, an employer is not required to “manufacture a job that will enable the disabled
worker to work despite his disability.” Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir. 2000).
In Dalton v. Subaru-Isuzu Auto., Inc., the Seventh Circuit reviewed an employer’s light-duty
program that provided temporary positions—normally lasting no longer than 90 days and

13

carrying with them a reduced wage—for employees suffering from temporary disabilities. 141
F.3d 667 (7th Cir. 1998). In finding that the temporary and limited nature of the program did not
violate the ADA, the court noted the following:
The ADA does not compel an employer to reduce the number of bona fide
temporary jobs it has set aside . . . and to convert them to permanent positions for
its disabled employees. . . To hold otherwise would be to require [an employer] to
create new full-time positions to accommodate its disabled employees, a course of
action not required under the ADA.
Id. at 680; see also Watson v. Lithonia Lighting, 304 F.3d 749, 752 (7th Cir. 2002)
(“[T]he ADA does not require an employer that sets aside a pool of positions for
recovering employees to make those positions available indefinitely to an employee
whose recovery has run its course.”); cf. Gratzl, 601 F.3d at 680 (affirming summary
judgment and finding, as a matter of law, that an employer who decided to eliminate a
special position the plaintiff held by incorporating it as one among many court reporter
duties (which the plaintiff could not perform) did not violate the ADA because an
employer is not required “to maintain an existing position or structure that, for legitimate
reasons, it no longer believes appropriate”).
However, in Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998), an
analogous case involving a class of permanently disabled employees who were denied
reassignment into light-duty positions (which their employers reserved for employees
recuperating from temporary medical restrictions), the Seventh Circuit reversed the
district court’s grant of summary judgment, finding that a question of fact existed as to
whether the plaintiffs’ light-duty positions were permanent or temporary. The Court
noted that the light-duty positions were given “with no end-date, no specified period for

14

holding the job . . . [and] [the plaintiffs] remained in those jobs until a medical decision
concerning the permanence of their disabilities was rendered.” Id. at 697. The Court also
noted that the defendant employer specifically created the light-duty positions in the
applicable collective bargaining agreement and did not designate them as temporary. Id;
see also Lutter v. Rinella Beverage Co., No. 00 C 8024, 2004 WL 419826, at *12 (N.D.
Ill. Feb. 5, 2004).
When viewing the evidence in a light most favorable to the Plaintiff—as the
Court must for summary judgment purposes—a question of fact exists as to whether the
Defendants’ light-duty positions were, in fact, temporary; so as to preclude a violation
under the ADA. See Hendricks-Robinson, 154 F.3d at 697 (“If the light-duty positions
truly are temporary, [the defendant] was not required to convert them into permanent
ones for the permanently restricted employees.”) The record shows that the Defendants
maintained light-duty positions that were “created for individuals with restrictions,”
(Robertson Dep. 84), and that prior to taking a leave of absence for neck surgery, the
Plaintiff was placed in a variety of light-duty positions (i.e., “Pick Lean” “Monitor
Fecal,” and other “monitor” positions). Similar to Hendricks-Robinson, the light-duty
positions had specific titles (and in this case, specific job codes), see Job Activity
Notification Forms, ECF No. 26-3 at 21–28, and were given to the Plaintiff with no enddate or specified period for holding such jobs. Cf. Dalton, 141 F.3d at 681 (finding that a
light-duty program was temporary when employee participation was limited to a
maximum period of 90 days). Although it may be reasonably inferred from Robertson’s
testimony that the Defendants’ light-duty positions are, in fact, temporary positions for

15

recovering employees, the Court is not charged with drawing such inferences. See Payne,
337 F.3d at 770 (“On summary judgment a court may not make credibility
determinations, weigh the evidence, or decide which inferences to draw from the facts;
these are jobs for a factfinder.” ) (citing, in part, Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)); see also Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001)
(“On a motion for summary judgment, all doubts as to the existence of an a issue of
material fact must be resolved against the movant.”) (citation and internal quotation
marks omitted). In the Court’s view, the Plaintiff has submitted sufficient evidence to
create a triable issue as to whether reassignment to a light-duty position constituted a
reasonable accommodation under the ADA.8

B.

Failure to Reasonably Accommodate
As part of the reasonable accommodation duty, the ADA requires employers to engage in

an interactive process with disabled employees needing accommodation so that together they can
8

Alternatively, the Defendants argue that the Plaintiff was not a “qualified individual” because he
failed to identify a vacant light-duty position during the relevant time period. See, e.g., Fox v. Toyota
Motor Mfg., Ind., Inc., No. 3:07-cv-71-WGH-RLY, 2008 WL 2705555, at *4 (S.D. Ind. Jul. 10, 2008)
(finding that the plaintiff is not qualified under the ADA, in part, because “[n]either [the plaintiff] herself
[n]or any other witness establish that there was a particular job at the facility that did not violate [the
plaintiff’s] restrictions which was actually vacant . . . during the time [the Plaintiff] was on medical
leave.”) However, given the Plaintiff’s deposition testimony—in which he essentially states that the
Defendants prevented him from determining whether a light-duty position was available—this issue
collapses into the inquiry as to whether the Defendants failed to reasonably accommodate the Plaintiff’s
disability, which the Court will address below. See Dalton, 141 F.3d at 678 (finding that “[t]he employer
must first identify the full range of alternative positions for which the individual satisfies the employer’s
legitimate, nondiscriminatory prerequisites . . . and then determine whether the employee’s own
knowledge, skills, and abilities would enable her to perform the essential functions of any of those
alternative positions, with or without reasonable accommodations.” ); see also Baert v. Euclid Beverage,
Ltd., 149 F.3d 626, 633–34 (7th Cir. 1998) (noting that employee requested to be assigned to any open
position and that there was a genuine issue whether there were open positions available that he could
perform).

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identify the employee’s needs and discuss accommodation options. Emerson v. N. States Power
Co., 256 F.3d 506, 515 (7th Cir. 2001). “An employee’s request for reasonable accommodation
requires a great deal of communication between the employee and employer.” Bultemeyer v.
Fort Wayne Cmty. Schs., 100 F.3d 1281, 1285 (7th Cir. 1996). Both parties bear responsibility
for determining what accommodation is necessary. Id. If an employer fails to engage in the
interactive process or causes the process to breakdown, and that breakdown leads to the
employer’s failure to provide a reasonable accommodation, the employer is liable under the
ADA. Emerson, 256 F.3d at 515.
Here, the parties agree that on or about December 5, 2011, the Plaintiff met with
Robertson and presented a certification, dated December 1, 2011, in which Dr. Philip indicated
that the Plaintiff was able to return to work with the following restrictions: no stretching of his
right arm and shoulder, and no lifting of more than 20 pounds. But this is where their agreement
ends. In the Defendants’ version of the events—as presented by Robertson’s testimony—the
Plaintiff was informed at the December 5 meeting that he could perform his full-time job (i.e.,
“Manifest on Kill Floor”). The Plaintiff then expressed doubt as to whether he could perform the
job, and he was granted additional time to contact his doctor. Robertson testified that he received
no further communication from the Plaintiff or Dr. Philip regarding his work restrictions prior to
the Plaintiff’s termination.
By contrast, in the Plaintiff’s version of the facts—as presented by his own
testimony—Robertson refused to discuss potential accommodations at the December 5 meeting;
and instead, requested a more detailed work certification. See Pl.’s Dep. 240 (“[Counsel:] And
when you gave [Robertson] the return to work [certification] from Dr. Philip [on December 5,

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2011], what did he say? [Plaintiff:] ‘Vague. Vague. That’s too vague. I need specifics. Your arm.
Your leg. Your back. Everything. I need more specific clarification of this. This is much too
vague.’”) The Plaintiff went on to testify that four additional communications took place
between he and Robertson (two in-person meetings and two telephone conversations), where the
parties discussed revised certifications that were submitted by Dr. Philip and ultimately rejected
by Robertson. See Pl.’s Dep. 247 (“[Counsel:] Did you go in and see Kelly Robertson the same
day as the phone call? . . . [Plaintiff:] I went in that day. He said, ‘This [second certification]
isn’t telling me anything’ and he was trying to discourage me. He kept saying, ‘What are you we
going to do? I’m going to have to let you go if you can’t get more specific.’”); id. at 250
(testifying that during a December 22 meeting, Robertson “fired me right that minute when I
came in.”).
Generally, “summary judgment briefs that present different versions of the facts [should]
arouse [a court’s] attention given the standard under the Federal Rules of Civil Procedure.” Paz
v. Wauconda Healthcare and Rehab. Ctr, 464 F.3d 659, 664 (7th Cir. 2006); Pourghoraishi v.
Flying J, 449 F.3d 751, 753–54 (7th Cir. 2006) (“[S]ummary judgment briefs that present
multiple versions of the facts arouse our attention at the outset because under the Federal Rules
of Civil Procedure, a judge may grant summary judgment for a moving party only where there
are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a
matter of law.”). As demonstrated above, the parties have presented wholly different versions of
the December 5 meeting and the relevant events that occurred (or did not occur) thereafter. Aside
from a copy of the December 19 letter sent by Robertson—the content of which is contradicted,
in part, by Robertson’s own testimony, see Robertson Dep. 33 (“[Counsel:] So, would you

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characterize your discussions with [the Plaintiff] in December 2011 as an interactive process or
didn’t it get to that level? [Robertson:] I would not, no.”)—the evidence as to the parties’
relevant communications is limited to competing depositions. See Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 920 (7th Cir. 1994) (“[B]ecause summary judgment is not a paper trial, the
district court’s role in deciding the motion is not to sift through the evidence, pondering the
nuances and inconsistencies, and decide whom to believe. The court has one task and one task
only: to decide, based on the evidence of record, whether there is any material dispute of fact
that requires a trial.”); see also Paz, 464 F.3d at 664 (“[A] plaintiff may defeat summary
judgment with his or her own deposition.”).
At this point in the litigation, the Court cannot declare, as a matter of law, that no
reasonable juror could find in the Plaintiff’s favor as to whether the Defendants failed to provide
him a reasonable accommodation. If the Plaintiff’s testimony is deemed credible, a reasonable
jury may conclude that the Defendants either failed to engage in the interactive process or were
responsible for any breakdown in communications between the parties, and that such actions
resulted in the denial of a reasonable accommodation (i.e., reassignment to a light-duty position).
For these reasons, summary judgment is inappropriate on this case record.

C.

100% Healed Policy
Lastly, a material issue of fact also exists as to whether the Defendants applied a “100%

healed policy,” which constitutes a per se violation of the ADA because it “prevents individual
assessment . . . [and] necessarily operates to exclude disabled people that are qualified to work.”
Steffen v. Donahoe, 680 F.3d 738, 748 (7th Cir. 2012) (citing Powers v. USF Holland, Inc., 667

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F.3d 815, 819 (7th Cir. 2011) (“[A]ll courts agree that a 100% rule is impermissible as to a
disabled person.”) (citation and internal quotation marks omitted).
The Plaintiff testified that beginning in March 2011, he had multiple conversations with
employees of the Defendants where he was informed that he could not return to work unless he
could perform a “full-time” or “full-duty” job. See, e.g., Pl.’s Dep. 167–68 (testifying that
Thatcher, after receiving a work certification signed by Dr. Gorup indicating that the Plaintiff
could return to work with restrictions, informed the Plaintiff that unless he can perform a “fullduty job,” he cannot return to work.). Again, in light of this case record—which consists largely
of the competing depositions of Robertson and the Plaintiff—the Court cannot declare, as a
matter of law, that no reasonable juror could find in the Plaintiff’s favor. The appropriate course
is for a trier of fact to weigh the Plaintiff’s credibility, and determine whether the Defendants, in
fact, required the Plaintiff to be cleared of all medical restrictions prior to returning to work, so
as to violate the ADA’s prohibition against applying a 100% healed policy.

CONCLUSION
For the reasons stated above, the Court GRANTS the Plaintiff’s Motion Seeking
Permission to File His Brief in Response in Excess of 25 Pages [ECF No. 27]; and DENIES the
Defendants’ Motion for Summary Judgment [ECF No. 23]. The Court SETS a telephonic
status/scheduling conference for March 24, 2016, at 10:00 AM. The Court will initiate the call.

SO ORDERED on February 29, 2016.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
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