Harris v. Steel Warehouse
Filing
49
OPINION AND ORDER: Plaintiff Timothy Harris's Motion to Certify to the Indiana Supreme Court 29 is DENIED; and Defendant Steel Warehouse's Motion for Summary Judgment 36 is GRANTED. The Clerk is DIRECTED to close this case. Signed by Judge Philip P Simon on 8/19/2019. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TIMOTHY HARRIS,
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)
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Plaintiff,
v.
STEEL WAREHOUSE,
Defendant.
Case No. 3:17-cv-465-PPS
OPINION AND ORDER
Plaintiff Timothy Harris claims that his former employer Steel Warehouse
discriminated against him due to his disability and retaliated against him for filing a
worker’s compensation claim to boot. Harris worked for Steel Warehouse as an
electrician for about five years before he suffered a workplace injury that left him
without full use of his left hand and arm. For about a year and a half after the injury,
Harris’s medical restrictions were in flux. Harris says that to the extent he was not
allowed to return to work, Steel Warehouse’s actions amounted to discrimination. He
also says the company illegally retaliated against him under state law for filing a
worker’s compensation claim. Steel Warehouse contends nothing of the sort occurred
and has moved for summary judgment on Harris’s claims.
There’s also a procedural wrinkle here. Harris has filed a Motion to Certify a
question to the Indiana Supreme Court. He says that his state law claim presents a
novel and important question of Indiana state law and that before I rule on it, I should
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ask that Indiana’s highest court step in and guide my answer. But because I don’t think
the question raised by Harris satisfies the stringent requirements of certifying a
question to the Indiana Supreme Court, I will deny that motion. As for the underlying
claims, the undisputed facts here show that Steel Warehouse did not discharge Harris in
retaliation for him filing a worker’s compensation claim. Likewise, the company
satisfied its legal obligations under the Americans with Disabilities Act (ADA) and
consequently, the undisputed facts show it is entitled to summary judgment on that
claim too. Thus, I will grant Steel Warehouse’s motion and this case will be resolved
without a trial.
Background
Steel Warehouse is in the business of steel processing. Harris began work at Steel
Warehouse as an electrician in August 2011. As an electrician, Harris was part of a
maintenance team which worked to service and repair the heavy machinery used in
Steel Warehouse’s facilities. There is apparently no written job description of an
electrician at Steel Warehouse, but the parties agree that when he began, Harris was
able to perform the functions of the job just fine. Harris worked at Steel Warehouse for
more than four years without much issue, and there is no indication that Steel
Warehouse was planning to terminate Harris’s employment for performance reasons.
In November 2015, Harris had shoulder surgery and went on temporary medical
leave from November 19, 2015 to January 4, 2016. After that period of recovery, Harris
returned to work as an electrician. The parties dispute the nature of the work Harris
performed from January to April 2016. Harris says that in the months following his
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shoulder surgery, he wasn’t at 100% and couldn’t do his job quite the same. Specifically,
he had medical restrictions of no lifting, pushing or pulling and no overhead work. [DE
41-6.] He says that as a result of these restrictions, Steel Warehouse gave him a medical
accommodation for several months, that he was only given “light work” and that,
without giving specifics, when there were jobs or tasks he couldn’t do, another
electrician on shift did them. [DE 40 at 16.]
Steel Warehouse says Harris mischaracterizes how the company handled
Harris’s medical restrictions. It says that the medical restrictions Harris had after his
surgery were mostly inconsequential and didn’t impact his ability to perform the
essential functions of his job. Thus, no accommodation of “light work only” was
required. And the employee responsible for assigning Mr. Harris work denied giving
him light duty work, and that Harris did his normal job, just without any heavy lifting.
[DE 41-2, Jeffrey Dep. at 20.]
On April 19, 2016, Harris was severely injured on the job. His left arm was
crushed, but the exact cause of this injury is unclear: Steel Warehouse says it was
because of the “deliberate unsafe acts” of Harris and a coworker for which Harris was
eventually written up for, but Harris says it was an accident and he was only written up
after he filed a complaint with the Equal Employment Opportunity Commission
(EEOC). But the basic takeaway is that Harris was using a steel cutting machine and got
his arm caught in it. Harris was rushed to the hospital and underwent multiple
surgeries on his arm. He underwent additional surgery on the arm in June 2016. These
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injuries unquestionably kept Harris from being able to work for several months and
even resulted in some permanent injuries.
On July 20, 2016, after several months of recovery, Harris’s doctor gave him
written medical restrictions. He was restricted to no lifting or weight-bearing on his left
arm and limited to an 8-hour workday. [DE 41-1, Harris Dep. at 133.] He was cleared to
return to work, with restrictions, on August 8, 2016 and sought reinstatement from Steel
Warehouse. But the company did not allow Harris to return to work because, according
to its side of the story, Harris could not adequately work as an electrician due to his
medical restrictions. Steel Warehouse’s decision was based on Harris’s inability to fully
use his left hand, which it contends is necessary in order to perform the essential
functions of an electrician. It says that this impairment was thus altogether different
from Harris’s limitations when he was recovering from shoulder surgery in early 2016.
Harris quibbles with this characterization, noting that his doctor did not restrict him
from using his left hand entirely, but he doesn’t deny some limitations. Harris testified
that he could grasp with his left hand, but that because he could not feel all his fingers
fully, he had issues with his fine motor skills. [Id. at 158-159.]
Harris’s employer-provided health insurance terminated on July 21, 2016, in
accordance with his union contract which allowed for three months of insurance while
an employee was on leave. [See DE 37-6 at 73.] On August 3, Harris and his attorneys
informed Steel Warehouse that he was intending to file a charge of discrimination with
the Equal Employment Opportunity Commission (EEOC) because the company would
not let him return to work. [DE 41-29.] A week later, on August 10, Steel Warehouse
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issued a “Violation of Company Rules” to Harris for deliberate unsafe acts in using the
shear which led to his workplace injury the previous April. [DE 41-31.] And while in his
briefing, Harris mentions these events together, noting their temporal connection, he
does not argue or directly imply there was any connection between them, i.e. that he
was written up for the injury as a result of notifying Steel Warehouse he was going to
file a complaint with the EEOC.
Over the next several months, Harris continued to recover from his injuries and
continued seeing his medical team for rehabilitation. Throughout the process, he
received revised medical restrictions from his doctors. Specifically, they were revised
on September 28, November 8, December 5, and April 24, 2017. While the exact
restrictions Harris had varied, at each step, Harris’s doctors restricted his use of his left
hand in some capacity each time. And at each juncture when Harris requested to return
to work, Steel Warehouse denied it for the same reason: it said he couldn’t do the job
without full use of both hands and there was no light duty position available that he
could temporarily work in.
On June 12, 2017, Harris received revised medical restrictions and was given
only a five-pound lifting restriction. Importantly, Harris had no grasping restriction
whatsoever on his left hand. Steel Warehouse reinstated Harris and he began to work
again for the company as an electrician, and he continued to do so for several months.
Harris’s employment with Steel Warehouse hit another speed bump on
September 11, 2017, when his medical restrictions were revised again. This time he was
restricted to no vertical ladders, no climbing in and out of buckets and to an 8-hour
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work day. Even though there was no grasping restriction, this caused Steel Warehouse
to reevaluate Harris’s ability to work. It told Harris that because he could no longer
climb out of an elevated lift bucket, he could no longer work overtime on the weekends
when he would be the only electrician on duty. Climbing out of an elevated bucket was
required to repair cranes, a frequent part of his job. Harris was the only electrician on
duty and when the need came up, the company would have to bring in a second
electrician to do that part of the job. But the company nonetheless allowed him to
continue to work during the week (when other electricians were on duty). In January of
2018, after this lawsuit was filed, Harris resigned from Steel Warehouse and took a job
elsewhere.
Discussion
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and [the moving party is] entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party bears the initial burden of showing no genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When making that call, I
must draw all reasonable inferences in favor of the nonmoving party. Ozlowski v.
Henderson, 237 F.3d 837, 839 (7th Cir. 2001). Harris is the nonmoving party. So to avoid
summary judgment, he must marshal enough evidence—that is, more than a scintilla—
to convince me that there are disputed issues of material fact that require a jury to
resolve. Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (“To survive a
motion for summary judgment, she must present the court with evidence that, if
believed by a trier of fact, would establish each of the elements of her claim.”). A
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genuine issue of material fact is not demonstrated by the mere existence of “some
alleged factual dispute between the parties,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986), or by “some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of
material fact only exists if “a fair-minded jury could return a verdict for the [nonmoving
party] on the evidence presented.” Anderson, 477 U.S. at 252. As the Seventh Circuit is
fond of saying, “it is the put up or shut up moment in a lawsuit.” Hammel v. Eau Galle
Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (citation omitted).
A. Harris’s ADA Claim
To prevail on his ADA claim, Harris needs to show that (1) he is disabled; (2) he
was otherwise qualified to perform the essential functions of his job with or without
reasonable accommodation; and (3) his employer took an adverse job action against him
because of his disability or without making a reasonable accommodation for it. Winsley
v. Cook County, 563 F.3d 598, 603 (7th Cir. 2009). If Steel Warehouse can show that there
is no evidence which would allow a jury to find in Harris’s favor on any of those
elements, I must grant summary judgment in its favor. Steel Warehouse’s argument
focuses on the second and third elements of the claim, and so I will assume Harris was
disabled during the periods in question.
Given the length of time involved and varying state of Mr. Harris’s impairments
and limitations throughout the period in question, some categorization is in order. The
parties agree Harris could not work at all from April 19, 2016 to August 8, 2016 or from
March 2, to April 24, 2017. [DE 40 at 7, n.6.] Thus, those portions of the saga can
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generally be set aside and the question becomes whether Steel Warehouse
discriminated against Harris by refusing him a light duty position from August 8, 2016
to March 1, 2017 and from April 24, 2017 to June 11, 2017. There is also the separate
issue as to whether Steel Warehouse’s prohibiting Harris from working weekend
overtime after September 14, 2017 violated the ADA. Accordingly, I will analyze these
three separate periods of time individually.
Harris concedes, as he must, that throughout this time, he wasn’t operating at
100% and had several restrictions from his doctors as to what he could and could not
do. That is why he is claiming a disability. The most relevant of these restrictions was
those limitations on Harris’s use of his left hand which persisted, to varying degrees, for
more than a year after his injury. Steel Warehouse says these hand-use limitations are
dispositive because they kept Harris from performing the essential functions of his job.
Essential functions are exactly what they sound like—the fundamental tasks and
responsibilities of any given job. While numerous factors are considered in determining
what are the actual essential functions of a job, an employer is generally allowed to
define them, so long as they are defined in a reasonable and non-pretextual fashion.
Basith v. Cook County, 241 F.3d 919, 929 (7th Cir. 2001) (“Cook County is allowed to
determine the job responsibilities of its pharmacy technicians, and it is not this court's
duty to second-guess that judgment so long as the employer’s reasons are not
pretextual.”); DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998) (“Although we
look to see if the employer actually requires all employees in a particular position to
perform the allegedly essential functions, we do not otherwise second-guess the
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employer's judgment in describing the essential requirements for the job.”) (citations
omitted).
Steel Warehouse has identified 15 tasks which it says are essential functions of
the electrician job and which require full use of both hands. Those are:
(1) Accessing the electrical boxes to fix many machines; (2) fixing the
components inside those boxes; (3) pulling wires; (4) stripping wires;
(5) wring out wires; (6) using a meter to conduct electrical tests; (7)
climbing ladders to access and repair overhead cranes used to move
material through the facilities and to access the various levels of the
Tucker Street facilities; (8) climbing out of lift buckets and over
catwalk railing to access and fix most of the overhead cranes; (9)
running conduit; (10) fixing limit switches; (11) manipulating small
wires; (12) replacing contactors; (13) pulling out hardware with twolatch releases in electrical boxes; (14) fixing the buttons on many of
the pendants used to control machines; and (15) performing some
“bench or shop work,” including rebuilding electrical panels and
remotes used to control machines and troubleshoot a device.
[DE 38 at 3; DE 41-1, Harris Dep. at 80-91, 95-105, 145-46, 242-46.] Importantly, Harris
agreed at his deposition that these tasks required use of both hands, at least in part. He
described many other tasks or functions of the job which he could do with one hand but
agreed that at least these fifteen required the use of both hands and that they were
regular parts of his job. [Id.] He also admitted they were part of his general job duties.
For the most part, Harris does not challenge the fact that these functions are
“essential” to the job of an electrician. As such, Harris could not fully perform all of the
essential functions of his job as an electrician while he had limitations on the use of one
hand. But the ADA’s requirements don’t stop there. The question becomes, what sort of
accommodation was Steel Warehouse required to offer Harris on account of his
disability? The law is clear that an employer is only required to give a “reasonable”
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accommodation, and so I must determine whether a reasonable accommodation existed
under these circumstances.
Harris says that letting him work on “light duty” as he says he did from January
to April 2016 would have been a reasonable accommodation. He says that while he was
recovering, he could have focused on desk work and avoided the types of physical tasks
he was unable to perform. Steel Warehouse says that this would have been an
unreasonable burden on it because there was no light duty position in existence. It says
Harris wanted it to create a new job for him and the ADA does not impose such a
burden on employers. I agree with Steel Warehouse.
Harris is correct when he says that the ADA may require an employer to place an
injured worker in a temporary light duty position if there is such an open position
available or the employer sets aside temporary positions for injured workers. HendricksRobinson v. Excel Corp., 154 F.3d 685, 696 (7th Cir. 1998). But the ADA does not require
an employer “to create new full-time positions to accommodate its disabled
employees.” Id. at 697 (quoting Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 680 (7th
Cir. 1998)). Nor does it require employers to grant every disability-related request or
accommodate an individual employee in the method that employee prefers. Mobley v.
Allstate Ins. Co., 531 F.3d 539, 546 (7th Cir.2008) (“An employer is not obligated to
provide an employee the accommodation he requests or prefers, the employer need
only provide some reasonable accommodation.”).
The main problem for Harris is that he cannot point to any open light duty jobs
which were vacant at Steel Warehouse. If he could, there might be a different result. See,
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e.g., Gibson v. Milwaukee Cty., 95 F. Supp. 3d 1061, 1073 (E.D. Wis. 2015) (finding
employer violated ADA when it refused to allow non-injured plaintiff to apply for
light-duty positions it had reserved for employees recovering from workplace injuries).
Nor was there a temporary light duty program for injured works at Steel Warehouse, as
some industrial employers have. See, e.g., Hendricks-Robinson, 154 F.3d at 697-698.
Harris responds that this is unfair because in the past Steel Warehouse has given
other disabled or injured employees, including him, temporary light duty assignments.
But even assuming that is true, that doesn’t change the fact that Harris is seeking to
expand the ADA beyond what the law covers. The Seventh Circuit has long rejected the
idea that because an employer gave one employee an accommodation in the past, they
are obligated as a matter of law to give the same accommodation to another employee.
Basith, 241 F.3d at 930 (“[W]e do not believe it wise to . . . punish Cook County for going
beyond the ADA’s requirements.”); Sieberns v. Wal–Mart Stores, Inc., 125 F.3d 1019, 1023
(7th Cir. 1997) (“Employers should not be discouraged from doing more than the ADA
requires....”). “An employer may provide an employee with an accommodation not
required by the ADA without thereby becoming obligated to provide all similarly
situated employees with the same accommodation.” Severson v. Heartland Woodcraft,
Inc., 2015 WL 7113390, at *8 (E.D. Wis. Nov. 12, 2015), aff’d, 872 F.3d 476 (7th Cir. 2017).
This is sensible. To hold otherwise would be to create perverse incentives where
an employer would shy away from accommodating employees beyond the mandatory
floor created by the ADA, lest they be punished in the future for their gratuitous
accommodations. See Vande Zande v. State of Wis. Dep't. of Admin., 44 F.3d 538, 545 (7th
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Cir. 1995) (“[I]f the employer ... goes further than the law requires ... it must not be
punished for its generosity”). In other words, good deeds can in fact go unpunished, at
least in the ADA context. Thus, Harris’s contention that he “was able to perform the
essential functions of a temporary, light duty assignment” from August 8, 2016 to
March 2, 2017 [DE 40 at 13], is not relevant. No such position existed, and Steel
Warehouse was not required to create one for Harris. The fact that Harris worked after
his shoulder injury in early 2016 is furthermore an inapt comparison; his limitations and
medical restrictions were different and did not include any limitation on grasping with
his hands after his shoulder surgery. In sum, there is no evidence that Steel Warehouse
discriminated against Harris during the period of August 8, 2016 to March 2, 2017.
This brings us to the period between April 24, 2017 and June 11, 2017, the date
Harris was reinstated by Steel Warehouse. (Recall that Harris concedes he could not
work at all between March 2, 2017 and April 24, 2017.) In his brief, Harris says that his
only medical restrictions were “no repetitive left wrist movement” and “no ladders.”
[DE 40 at 23.] Thus, he says, he could grasp with both hands and do his job as of April
2017. The big problem with Harris’s argument is that the evidence he cites flatly
contradicts him. His medical form says “No repetitive left wrist movement or grasping
and no ladders.” [DE 41-16.] So when Harris (or his attorneys, who I might remind owe
a duty of candor to the court) say, “Mr. Harris’ April 24, 2017 restrictions allowed for
him to grasp with both hands” they are contradicting their own submitted evidence.
Because Harris had a similar “no grasping” restriction from April 24 to June 11 that he
had between August 8, 2016 and March 2, 2017, the result is the same. Without the
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ability to grasp with both hands, Harris could not perform the essential functions of his
job and was thus not qualified.
We come now to the final period in question: post-September 11, 2017. This is the
date on which Harris’s doctors imposed a medical restriction of no climbing in or out of
elevated buckets. When this restriction was imposed, Steel Warehouse stopped letting
Harris work weekend overtime, after having been working since June 11, 2017. Steel
Warehouse says that this limitation meant Harris could not perform all the essential
functions of the job. It says that relieving him from that function wasn’t an option either
because it says he would have been the only electrician on duty during the weekend.
During the week, there were multiple electricians on duty, and Harris was permitted to
continue working his regular hours during the work.
While Harris agrees that climbing in and out of elevated buckets is necessary in
order to fix the cranes, he contests that fixing the cranes on the weekend was an
essential function. He argues that, in his opinion, it was reasonable for Steel Warehouse
to wait until Monday to have another electrician fix them. To do so, he relies on the
testimony of Robert Johnson, an employee of Steel Warehouse who testified that he did
not “believe that [climbing in and out of an elevated bucket is] an essential function for
[Harris’s] job.” [DE 41-3, Johnson Dep. at 58-59.] The other relevant testimony he cites to
is his own, that fixing a crane over a weekend verses waiting until Monday was “a
supervisor’s call” and that often “they would wait until Monday to work on it.” [DE 411, Harris Dep. at 202.]
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On the other end of the scale is Steel Warehouse’s evidence. First, it challenges
Harris’s characterization of Johnson’s testimony. For one, Johnson testified that he was
not familiar with the ADA’s definition of “essential function” (an unsurprising fact for a
nonlawyer). [DE 41-3, Johnson Dep. at 59.] But he did testify that maintaining working
cranes and fixing them in a timely manner was an important part of the job because
“[t]he overhead crane continues our operation. Without an overhead crane, potentially,
operations will stop . . . not producing product for our customers.” [Id. at 71-72.] It says
that this is evidence to support the legal conclusion that fixing cranes was an essential
function, regardless of whether Johnson knew the proper legal terminology. Steel
Warehouse also points out that Harris conceded that cranes are important for Steel
Warehouse’s business: they move the product from place to place throughout the
facility and if certain cranes are broken, it could halt all production in the facility. [DE
41-1, Harris Dep. at 84.] And Harris further testified that there were more than 30 cranes
at the facility and that repairing cranes constituted about 20 percent of his job. [Id. at 84,
202-203.]
The determination of whether something is an essential function of a job is
guided by the factors listed in. 29 C.F.R. § 1630.2(n)(3); Lenker v. Methodist Hosp., 210
F.3d 792, 796 (7th Cir. 2000). Those factors are: “(i) The employer’s judgment as to which
functions are essential; (ii) Written job descriptions prepared before advertising or
interviewing applications for the job; (iii) The amount of time spent on the job
performing the function; (iv) The consequences of not requiring the incumbent to
perform the function; (v) The terms of a collective bargaining agreement; (vi) The work
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experience of past incumbents in the job; and/or (vii) The current work experience of
incumbents in similar jobs.” Id. It is true that an employer’s judgment is a very
important factor, but they don’t get the final say-so, and I cannot simply rubberstamp
their judgment. Basith, 241 F.3d at 928-29; DePaoli, 140 F.3d at 674.
The only real evidence Harris offers are his own opinion that fixing cranes is not
an essential function because supervisors sometimes put off fixing cranes until Monday
and not all crane breakdowns would shut down entire production lines. Notably, the
employee’s opinion is not one of the enumerated factors listed in the applicable federal
regulations as to what the essential function is. But the employer’s judgment
(maintaining cranes is important), amount of time spent on the function (roughly 20%
of an electrician’s time), and consequences of not performing the function (potential
plant shut down) are. All of those go in Steel Warehouse’s favor, with Johnson’s
testimony being a little internally inconsistent, but not enough to create an issue for the
jury. Harris offers nothing more than the proverbial scintilla of evidence which is not
enough to overcome summary judgment.
Because Harris fails to offer sufficient evidence to create a disputed issue of fact
as to whether fixing cranes in a timely manner is an essential function of the electrician
job, his claim concerning overtime fails. His proposed accommodation of bringing in
another electrician if a crane broke or postponing maintenance until Monday are simply
unreasonable. The ADA does not require an employer to have two employees do the
job of one when a disabled employee cannot perform the essential functions of the job
on their own—that’s not a reasonable accommodation. Majors v. Gen. Elec. Co., 714 F.3d
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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.”); see also Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir. 1996)
(employee’s suggested accommodation of hiring a helper to perform an essential
function of the job, the overhead work required by the position, was not a reasonable
accommodation).
In sum, the law does not mandate that Steel Warehouse have a second employee
at the ready to assist Harris with an essential function of his job. This principle is fatal to
Harris’s claim that the company should have allowed him to keep working weekend
overtime after September 2017 when he was medically restricted from climbing in and
out of buckets. Doubling the number of overtime electricians on weekends so that
Harris could keep getting overtime would not have been reasonable. Likewise, given
the uncontroverted evidence of potential threats to production posed by a broken crane,
delaying maintenance on cranes as a matter of course in order to accommodate Harris’s
desire to work overtime wasn’t reasonable.
B. Indiana State Law Unlawful Termination or Frampton Claim
Harris has also asserted a claim under Indiana state law. He says that while he
was on indefinite leave from Steel Warehouse, his employment was effectively
terminated. He says his worker’s compensation claim motivated the retaliation. But as
we know, Steel Warehouse never technically terminated Harris. He was placed on
involuntary leave for over a year before eventually returning to work. Then he resigned
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a few months after he was prohibited from working overtime hours. Steel Warehouse
says these facts are not enough for Harris to take this claim to a jury. I agree.
Indiana, like most states, has embraced the concept of “employment at-will.”
That is, an employer may fire an employee for any reason or no reason at all, so long as
the reason is not prohibited by law. Decades ago, the Indiana Supreme Court created an
exception to the employment at-will doctrine in the seminal case of Frampton v. Cent.
Ind. Gas. Co. In that case, the 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 or the Indiana Workmen’s Occupational Diseases Act, has stated a
claim upon which relief can be granted.” Frampton v. Cent. Ind. Gas. Co., 297 N.E.2d 425,
428 (Ind. 1973) (citations omitted). In effect, an employer cannot legally fire an
employee because the employee files a claim for worker’s compensation because to
allow that would upset the Indiana legislature’s efforts to create an effective worker’s
compensation regime. Id. at 428. (“Retaliatory discharge for filing a workmen's
compensation claim is a wrongful, unconscionable act and should be actionable in a
court of law.”).
After the April 2016 accident, Harris promptly filed a workmen’s compensation
claim. That’s not in issue. The focus for our purposes is whether Harris can plausibly
say he was “retaliatorily discharged” in response to him filing the claim. Steel
Warehouse says he cannot and, as a result, summary judgment should be granted in its
favor. Harris agrees he was not discharged per se but says that before I base a ruling
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only on that fact, I should check in with the Indiana Supreme Court first to make sure it
doesn’t want to expand Frampton claims to cover situations like his.
Pursuant to Indiana Rule of Appellate Procedure 64, federal courts “may certify a
question of Indiana law to the Supreme Court when it appears to the federal court that
a proceeding presents an issue of state law that is determinative of the case and on
which there is no clear controlling Indiana precedent.” Ind. R. App. P. 64(a). “A case is
appropriate for certification where it ‘concerns a matter of vital public concern, where
the issue is likely to recur in other cases, where resolution of the question to be certified
is outcome determinative of the case, and where the state supreme court has yet to have
an opportunity to illuminate a clear path on the issue.’” Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1101 (7th Cir. 2008) (citation omitted). “Questions that
are tied to the specific facts of a case are typically not ideal candidates for certification.”
Id. Harris has asked me to certify a question to the Indiana Supreme Court: “Can an
employer-defendant’s removal of its employee-plaintiff from service be actionable
under the wrongful and retaliatory discharge cause of action pursuant to Frampton
when said removal is unpaid and indefinite?” [DE 30 at 3.]
Since Frampton was decided in 1973, it has remained a narrow exception to the
employment at-will default. The Indiana Supreme Court has reiterated Frampton is
“quite a limited exception” and that “[m]ost cases have refused to extend Frampton”
because employment-at-will is the public policy of Indiana and it is for the legislature,
not the courts, to revise it. Meyers v. Meyers, 861 N.E.2d 704, 707 (Ind. 2007); see also
Montgomery v. Bd. of Trustees of Purdue Univ., 849 N.E.2d 1120, 1127 (Ind. 2006) (refusing
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to extend Frampton to cover retaliation for violations of the Indiana Age Discrimination
Act). In fact, the real only “expansion” of Frampton was in Baker v. Tremco, Inc., where
the Indiana Supreme Court recognized that constructive discharge (where an employee
is forced to resign because of hellish working conditions) is legally indistinguishable
from traditional termination. Baker v. Tremco Inc., 917 N.E.2d 650, 655 (Ind. 2009); see also
Tony v. Elkhart Cty., 918 N.E.2d 363, 368 (Ind. Ct. App. 2009) (discussing history of
Frampton and Baker). But that’s about it, and I don’t think this case warrants asking the
Indiana Supreme Court to once again say that Frampton is a limited exception and
narrow holding. Nothing in the jurisprudence suggests a discharge (actual or
constructive) is not an essential element. Harris wasn’t discharged; he returned to work
and then quit of his own volition.
Harney is instructive. In that case, the Seventh Circuit denied a request for
certification in a case concerning a dispute between employer and employee. As the
court noted, the Indiana Supreme Court had provided guidance in several cases as to
when bonuses should be considered “wages” under Indiana law. Harney, 526 F.3d at
1101. And certifying the question in that case, whether bonuses were wages in the
context of that specific employer-employee relationship, was likely to only benefit the
litigants and parties before the court. Id.
So too here. The factual specifics of Harris’s claim help to outweigh any
precedential decision that might come about in his favor. For months after the initial
refusal to reinstate him, Harris saw doctors and worked to have his medical restrictions
limited so that he could return to work. That process took nearly a year and was specific
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to Harris’s injuries and the requirements of his job as an electrician. Given the amount
of factual particularities in this case, I don’t think having the Indiana Supreme Court
weigh in would be particularly helpful to future litigations either.
The Indiana Supreme Court’s consistently narrow reading of Frampton since it
was decided gives me no confidence that it would now create a new cause of action for
employees on indefinite unpaid leave recuperating from workplace injuries but who
eventually return to work. Nothing Harris offers leads me to think that the Indiana
Supreme Court would break new ground by crafting an additional exception to
Indiana’s limited Frampton doctrine.
Finally, it is worth noting that Harris directs me to an earlier decision of mine in
which a similar issue came up. In Menefee v. UPS, I dismissed a Frampton claim in a case
where “an employer refuse[d] to allow an employee to return to work but [did] not
officially fire the person.” Menefee v. United Postal Serv., Inc., 2008 WL 4682606, at *3
(Oct. 21, 2008). In passing, I said that “[t]heoretically, there might be a situation in
which the Indiana courts would find that telling an employee that she cannot return
from medical leave amounts to an actual discharge” but that “[i]t does not seem likely
that the Supreme Court would extend Frampton to cover the type of situation at play
here.” Id. I think that remains the case today.
In sum, without evidence that he was terminated or constructive discharged,
Harris’s Frampton claim fails as a matter of law. Steel Warehouse is entitled to summary
judgment on this claim too.
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Conclusion
For the foregoing reasons, Plaintiff Timothy Harris’s Motion to Certify to the
Indiana Supreme Court [DE 29] is DENIED; and Defendant Steel Warehouse’s Motion
for Summary Judgment [DE 36] is GRANTED. The Clerk is DIRECTED to close this
case.
SO ORDERED on August 19, 2019.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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