Opinion
No. 1:03-cv-0265-JDT-WTL.
December 23, 2004
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 36)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff Larry D. Cagle filed a Complaint against Defendants FinishMaster, Inc., and FinishMaster Services, Inc., a wholly owned subsidiary of FinishMaster, Inc., alleging various forms of employment discrimination. Specifically, Cagle claims that Defendants violated his rights under the American with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2612(a)(1), 29 U.S.C. § 2614(a), and 29 U.S.C. § 2615(a)(2); and the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Defendants filed a motion for summary judgment (dkt. no. 36), to which the court now turns.
I. BACKGROUND
Plaintiff Cagle began working for FinishMaster, Inc. ("FinishMaster"), in July 1998 as the company's Planning and Forecast Manager. Cagle's title was changed to Director of Financial Reporting and Treasury in 2001. In early 1999, Cagle required an undetermined amount of leave due to a then-undisclosed health condition. Cagle informed Robert Pruim, FinishMaster's Vice President of Human Resources, that he had been admitted to a hospital and would be out for a couple of weeks. Upon his return to work, Cagle informed his superiors that he had been diagnosed with "cytomegalovirus." Around the same time Cagle provided FinishMaster with documentation that indicated he had been diagnosed with Epstein-Barr virus, encephalitis, and viral meningitis. The documentation limited Cagle to working only four hours per day for six months. FinishMaster permitted Cagle to work half time in accordance with his restrictions, without reducing his pay, and routinely approved Cagle's requests for paid time off ("PTO"). In fact, Cagle testifies that Pruim and FinishMaster CFO Bob Millard "were very receptive to the idea of me working four hours per day, very encouraging that, you know, they would stand behind me and be there for me during the illness and whatever they could do to help they would try to do for me." (Cagle Dep. Defs.' Ex. 1 at 18.)
Effective January 1, 2002, FinshMaster Services, Inc., a wholly owned subsidiary of FinishMaster, became the employer of the employees who worked at FinishMaster's corporate headquarters, including Cagle. For ease of discussion, the court will refer to Defendants jointly as FinishMaster unless otherwise appropriate.
Beginning on August 3, 2000, Cagle took another leave of absence and only periodically came into work. During that period he received short-term disability benefits and an advance out of his future bonus payout. Although under no obligation to do so, FinishMaster paid Cagle his full salary for those days that were not covered by short-term disability or his remaining PTO. In late October 2000, Cagle returned to work and informed his superiors that Dr. Ann Marie Hake had diagnosed him with headaches and chronic fatigue syndrome. Then, in late 2001, Cagle was admitted to St. Vincent's Stress Center. He continued to suffer from Epstein-Barr, viral meningitis, chronic fatigue syndrome, and depression. Finally, on May 2, 2002, Cagle sent an e-mail message to Pruim and Millard, which provided as follows:
I know that both of you have been genuinely concerned about my health over the past 3 and half years . . . Last night, my doctor diagnosed me with Viral Meningitis again . . . Like the last time, only rest and a strong immune system can fight off the virus. Of course, I currently have no immune system so I'm unsure what future treatments will be. I thought I would give you a heads up because I know that you do care.
(Cagle Dep. Defs.' Ex. 1 at Ex. 11.) Shortly thereafter, on May 7, 2002, FinishMaster terminated Cagle's employment.
Cagle's medical history as it relates to this litigation is not in dispute. The parties do disagree, however, as to the lawfulness of his discharge. According to FinishMaster, the decision to terminate Cagle came after a series of events that caused the company to lose confidence in his ability to manage and lead his department. Cagle, on the other hand, asserts that the decision was because of his disability, because he requested leave under FMLA, and to prevent him from securing health benefits in violation of ERISA. Cagle's early performance reviews were positive. In late 1999, Millard gave Cagle an oral review, telling him that he had "[g]ood interpersonal relations with peers and subordinates," was "respected by his department members," a "good communicator," and one who conducts meetings frequently and with good organization. (Pl.'s Ex. Millard Dep. at 168-69.) Cagle's May 2000 evaluation again featured similar positive reviews, however Millard also stressed that Cagle needed to develop a better relationship with senior management. (Pl.'s Ex. Millard Dep. at 174-76; Millard Dep. Defs.' Ex. 2 at 173-74 and Ex. 23.) Despite his reduced work schedule, Cagle received bonuses in 1999 and 2000, and in 2000 he also received a 9.33% merit pay increase.
Cagle's first written evaluation came in July 2001. On a scale of one to four, Cagle received a 2.5, which indicated "average performance." (Pl.'s Ex. Millard Dep. at 131.) Like the two preceding annual evaluations, the 2001 review featured many positive statements: Cagle was described as "a strong communicator," being "very productive," and "developing a team atmosphere." ( Id. at Ex. 29.) However, Millard rated Cagle as "Unsatisfactory/Unacceptable" in the category entitled "Sets and Leads by Example." ( Id.) Millard indicated that Cagle needed to improve his attitude, citing his cynical view of upper management, a tendency to overreact, and a need to keep interactions with other employees "at a professional level." ( Id.) When presented with this evaluation, Millard discussed the specific findings with Cagle and told him that people perceived him as "being negative and non-supportive." (Cagle Dep. Defs.' Ex. 1 at 122.) Nonetheless, Millard awarded Cagle with a 6.1% pay increase because Millard "thought he deserved it." (Pl.'s Ex. Millard Dep. at 193.) Around the same time, Cagle informed Millard about various problems he was experiencing in his marriage and personal life. Although FinishMaster had no formal employee assistance program ("EAP"), Pruim made arrangements for Cagle to utilize such a program at an affiliate company for no cost. (Cagle Dep. Defs.' Ex. 1 at 126-27.)
The 2001 evaluation was the last Cagle received before his discharge, but it was not the final time FinishMaster addressed his performance. In August 2001, FinishMaster held a meeting in Culver, Indiana, for representatives of the company's vendors and members of senior management. On the final evening of the multi-day event, Cagle became intoxicated while out with other attendees. ( Id. at 92-93.) Whether because of the alcohol he consumed or an ordinary illness, Cagle became too sick to oversee a scheduled meeting with one of FinishMaster's primary vendors. ( Id. at 93-98, 271-76). Cagle was thus a "no-show" for the meeting. ( Id.) Millard became aware of this incident, but no reprimand was issued.
Two months later, Cagle attended a staff meeting where Millard announced the promotion of Vicki Pacilio to Vice President of Operations in the company's Florida office. When Cagle heard the announcement, he became openly critical of the decision and management in general. ( Id. at 99-111; Millard Dep. Defs.' Ex. 2 at Ex. 7, 30, 31.) When Millard defended his decision to promote Pacilio, the argument escalated to the point that he and Cagle began to shout at each other. ( Id. at 99-111; Millard Dep. Defs.' Ex. 2 at Ex. 7, 30, 31.) The next day Millard asked everyone in attendance to provide summaries of what they had seen or heard at the meeting, some of whom indicated that the company should consider terminating Cagle's employment due to his attitude towards senior management. (Millard Dep. Defs.' Ex. 2 at Ex. 31.) Pruim testifies that at this point he recommended to Millard that Cagle be terminated, specifically referring to the latter's insubordinate behavior at the meeting. (Pruim Dep. Defs.' Ex. 3 at 87-93, 109-110.) Millard disagreed, favoring instead to give Cagle a written reprimand and an instruction to apologize to all in attendance at the meeting.
According to Millard, "the straw that broke the camel's back" in terms of his decision to terminate Cagle was an incident involving one of Cagle's subordinates, Judd Lawrie. (Pl.'s Ex. Millard Dep. at 91.) Lawrie was responsible for filing FinishMaster's federal and state tax returns, including amended tax returns for 1998, 1999, and 2000. The parties disagree over the nature of the Lawrie incident, but essentially some confusion arose with respect to Lawrie's progress on the returns. When Millard asked Cagle for an update on the returns, the former came under the impression that Lawrie was behind and may have needed to be discharged. When Millard later learned that Lawrie had completed the returns, he felt as though Cagle's conduct had nearly led to an inappropriate dismissal. Regardless of Cagle's role in the Lawrie incident, Millard concluded that Cagle had communication problems with his staff. Cagle admits that he was responsible for making sure that Lawrie completed the returns and that at the time he was not aware of whether they had been done or not, but characterizes the incident as one in which Millard tried to blame others for his own mistakes. (Cagle Dep. Defs.' Ex. 1 at 184-85.) According to Cagle, Millard did not realize that he had already signed off on the amended returns when he began making inquiries into Lawrie's progress. When this was brought to his attention, Cagle claims Millard proceeded to blame him for the confusion that could have resulted in Lawrie's dismissal. At this stage of the litigation, the court must draw all reasonable inferences in favor of Cagle, and thus must accept his version of the Lawrie situation.
The final incident to precede Cagle's discharge involved statements made by Anne Simcoe, one of Cagle's subordinates. During her exit interview with Pruim, Simcoe stated that Cagle did not know the details of her work, was openly critical of senior management, behaved unprofessionally with company bankers, and had embarrassed her on several occasions. (Simcoe Aff. Defs.' Ex. 5.) On her final day at FinishMaster, Simcoe went to Millard and told him that during a conversation with Cagle the previous day, Cagle said something to the effect of, "If you are downtown and driving past the circle and see the CFO dead on the sidewalk, you'll know who did it . . . that I went over the edge." ( Id.) As a result of this statement, FinishMaster hired a security firm to provide Millard with protection at work. (Millard Dep. Defs.' Ex. 2 at 155.)
In light of the foregoing, Millard and Pruim began a series of meetings in which Cagle's future with the FinishMaster was the primary focus. Ultimately the two men decided to discharge Cagle, and a termination letter was prepared. The first draft of the letter was dated April 26, 2002, the date on which Millard intended to inform Cagle of the decision. (Pruim Decl. Defs.' Ex. 4 at Ex. B.) Cagle did not report for work on April 26, and so the termination meeting was postponed to April 30. ( Id. at Ex. C.) Cagle again failed to report for work on the 30th, and the meeting was re-scheduled for May 2. The termination letter was revised to reflect that date. ( Id. at Ex. D.) When Millard and Pruim had a conflict on May 2, the meeting was re-scheduled for May 6, and the letter revised as necessary. ( Id. at Ex. E.) Cagle was again out of the office on May 6, but on the morning of May 7, 2002, Millard and Pruim finally met with Cagle and informed him of his discharge. The reasons for discharge conveyed to Cagle were (1) a history of insubordinate and unprofessional behavior; (2) his open criticism of senior management; (3) the near-termination of Lawrie; and (4) the reported threat against Millard's safety. (Cagle Dep. Defs.' Ex. 1 at Ex. 12.) Cagle's termination occurred five days after he sent the e-mail to Millard and Pruim addressing his latest medical problems.
II. DISCUSSION
A. Standard of Review
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). Even though some of the facts in this case are in dispute, the court finds that they are not the critical ones.
B. Proper Defendants
The ADA makes it unlawful for a "covered entity" to "discriminate against a qualified individual with a disability because of the disability of such individual with regard to . . . discharge of employees. . . ." 42 U.S.C. § 12112(a). "The term `covered entity' means an employer," and "[t]he term `employee' means an individual employed by an employer." Id. § 12111(2), (3). Similarly, the FMLA makes it unlawful for "any employer" to interfere with the exercise of certain rights or to discriminate against certain individuals. 29 U.S.C. § 2615(a)(1), (2). Finally, ERISA makes it unlawful "for any person to discharge . . . a participant or beneficiary from exercising any right to which he is entitled under the provisions of any employment benefit plan . . . or for the purpose of interfering with the attainment of any [such] right." 29 U.S.C. § 1140. "The term `participant' means any employee or former employee of an employer . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan. . . ." Id. § 1002(7). Based on the foregoing statutory language, FinishMaster argues that Cagle needed to have an employment relationship with a defendant at the time of the alleged unlawful conduct for it to be liable under any of the theories he has articulated in his complaint. At the time of his discharge, Cagle was employed by FinishMaster Services, Inc., not FinishMaster, Inc., and had been for over four months. Therefore, because the two corporations are separate legal entities, the Defendants argue that FinishMaster, Inc., is not a proper defendant. Cagle has not contested this issue and therefore the court will find that FinishMaster, Inc., is not a proper party to the instant lawsuit and should be dismissed. However, as noted in footnote two of this Entry, the court will continue to refer to FinishMaster Services, Inc., as "FinishMaster" for the sake of discussion.
C. ADA Claim
The ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, . . . and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). In order to establish a prima facie case of discrimination under the ADA, Plaintiff Cagle must demonstrate that (1) he is disabled within the meaning of the Act; (2) he is qualified to perform the essential functions of his job either with or without reasonable accommodation; and (3) he has suffered from an adverse employment decision because of his disability. Dvorak v. Mostardi Platt Assocs., Inc., 289 F.3d 479, 483 (7th Cir. 2002). If Cagle establishes a prima facie case, the burden of production shifts to FinishMaster to provide a nondiscriminatory reason for its decision to terminate his employment. Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th Cir. 1999). If FinishMaster provides such a reason, the burden shifts back to Cagle to prove by a preponderance of the evidence that the reason amounts to pretext for intentional discrimination. Dvorak, 289 F.3d at 485. Should Cagle fail to establish a prima facie case, there is no burden shifting, and FinishMaster does not need to state a reason for his discharge. Gorbitz, 196 F.3d at 882. (citation omitted). "The ultimate burden to prove intentional discrimination remains with the plaintiff." Dvorak, 289 F.3d at 485 (citation omitted).
i. Disability
Cagle must first demonstrate that he is "disabled" within the meaning of the ADA. The ADA defines "`disability'" as "(A) a physical or mental impairment that substantially limits one or more of the 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(2). Major life activities include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(I).
Though listed only in his supplemental response brief, Cagle appears to be arguing that he is disabled under all three of the prongs used to define "disability." The court disagrees. First, Cagle has failed to demonstrate that he suffered from a physical or mental impairment that substantially limited one or more major life activities at the time of his employment with FinishMaster. At most, the record evidence shows that Cagle was diagnosed with a series of illnesses — including Epstein-Barr virus, viral meningitis, cytomegalovirus, and chronic fatigue syndrome — that required him to take off time from work. Simply listing a series of illnesses without offering any evidence as to how those illnesses substantially limit one or more major life activities is not sufficient. Courts routinely hold that hospital stays for a particular impairment, or leaves of absence from work for a particular impairment, may show that a person had an "impairment" at a particular time, but do not establish that the person is disabled under the ADA. See, e.g., Burch v. Coca-Cola Co., 119 F.3d 305, 317 (5th Cir. 1997). The instant case is perhaps most analogous to Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944 (7th Cir. 2000). In that ADA case, the plaintiff suffered from rheumatoid arthritis, a "chronic condition, permanent in nature" that, in "advanced" cases, can subject a person to "`flare-ups,' which result in temporary incapacitation." Moore, 221 F.3d at 948. The plaintiff argued that during his "`flare-ups'" he was "completely debilitated while they last and that, therefore, the flare-ups render his condition a disability." Id. at 952. The Seventh Circuit rejected this argument, finding that the plaintiff's "infrequent flare-ups, one or two per year, [do not] render his condition a disability." Id. Like the plaintiff in Moore, the record reveals that Cagle's medical condition resulted in periodic flare-ups, a few times each year, that either temporarily incapacitated him or required him to take off more time to rest than usual. Under such circumstances, Cagle is not "disabled" within the meaning of the ADA.
Cagle appears to be arguing that his impairment limits a major life activity or activities because his "everyday life" is a challenge. However, besides being extremely vague, Cagle's only evidentiary support for that contention is the affidavit of his treating physician, Dr. Dale Guyer. The court, by separate order (dkt. no. 77), has ruled that Dr. Guyer's affidavit is inadmissible, and therefore it is not properly before the court on this motion. The only other major life activity referenced by Cagle is "working."
In his supplemental response brief, Cagle for the first time states that his medical condition substantially limits the major life activity of "working." Cagle offers nothing to support his conclusory statement, however, and the court must reject it. Specifically, "[w]ith respect to the major life activity of working . . . [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3); Webb v. Clyde L. Choate Mental Health and Dev. Ctr., 230 F.3d 991, 998 (7th Cir. 2000). "`Thus an individual is not substantially limited in working just because he or she is unable to perform a particular job for one employer, or because he or she is unable to perform a specialized job or profession requiring extraordinary skill, prowess or talent;' instead `the impairment must substantially limit employment generally.'" Contreras v. Suncast Corp., 237 F.3d 756, 762 (7th Cir. 2001) (quoting 29 C.F.R. § 1630.2(j)). The only evidence Cagle offers is the purported statement of one of his doctors that he might need to take a six-month leave of absence. This statement alone does not demonstrate that his impairment limited his ability to perform an entire class of jobs, and such failure is fatal to his claim as a matter of law. Id.
Cagle also argues that he has a "record" of an impairment that substantially limits one or more of his major life activities because he submitted medical documentation describing his condition to FinishMaster when requesting his PTO. However, because the court finds that Cagle's impairments do not substantially limit any major life activities, a history of those same impairments cannot constitute a record of impairment. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 645 (2d Cir. 1998).
Finally, with respect to the definition of disability, Cagle argues that FinishMaster "regarded" him as disabled because Millard and Pruim were constantly aware of his medical condition during his employment. This claim is not tenable. The "regarded as" prong of the definition of disability is meant to "cover individuals `rejected from a job because of the "myths, fears and stereotypes" associated with disabilities.'" Sutton v. United Airlines, Inc., 527 U.S. 471, 489-90 (1999) (quoting 29 C.F.R. § 1630.2(l)). The fact that his superiors knew Cagle was often ill does not demonstrate that they regarded him as being substantially limited in the performance of major life activities. Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th Cir. 2001) ("[I]t is not enough for a plaintiff to show that the employer knew of the plaintiff's impairment."). "The plaintiff must select the major life activities that he will attempt to prove the employer regarded him as being substantially limited by his impairment." Id. (citations omitted). Cagle has not done so, and that alone is enough to reject his claim. Even if the court presumes that Cagle intended to argue that FinishMaster regarded him as being limited in the major life activity of working, his claim would still fail. Again, Cagle has offered no evidence to support such a proposition, save the awareness on the part of Millard and Pruim that he might need more time off due to his illnesses. But such knowledge on their part, before Cagle's termination, is not sufficient to show that the company "regarded" Cagle as limited in the major life activity of working. FinishMaster did not modify Cagle's job responsibilities when the company became aware of his condition, and instead simply reduced the hours he was required to work (without any reduction in pay). Moreover, even when he was forced to take extended leaves of absence, Cagle received merit-based increases in salary between 1999 and 2001. No record evidence even remotely suggests that FinishMaster acted out of "myth, fear or stereotype" during its employment relationship with Cagle.
In sum, the court finds that Cagle has not shown that he is disabled as defined by the ADA and thus cannot establish this threshold requirement for claiming discrimination under the statute. However, for the sake of thoroughness, the court will address the other two requirements for a prima facie case under the ADA.
ii. Qualified individual
If the court concluded that Cagle satisfied the statutory definition of disabled (which it did not), the next issue would be whether Cagle is qualified to perform the essential functions of his job either with or without reasonable accommodation. Under the ADA, a "qualified individual with a disability" is a person who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). This element of the prima face case determination has been only briefly addressed by the parties. Cagle insists that he is a qualified individual with a disability because he received some positive performance evaluations, salary increases, and bonuses. He has missed the point. Nowhere in the relevant section of his brief does Cagle even mention accommodation, nor does he describe the essential functions of his position. Nonetheless, it appears from the record that FinishMaster offered accommodation to Cagle by allowing him to work a reduced schedule without modifying his job responsibilities. Thus, given Cagle's condition, he could most likely perform the essential functions of his position with reasonable accommodation, and the court will assume without holding that he would be considered a qualified individual with a disability.
iii. Adverse employment action; Pretext
Besides failing to establish that he is disabled within the meaning of the ADA, Cagle has also failed to demonstrate that the decision to terminate his employment was discriminatory. Even assuming arguendo that Cagle suffered an adverse employment decision because of a disability, he cannot show that the nondiscriminatory reasons for his discharge asserted by FinishMaster are pretext for intentional discrimination. See Dvorak, 289 F.3d at 485. FinishMaster has advanced at least four nondiscriminatory reasons for its decision to terminate Cagle: (1) a history of insubordinate and unprofessional behavior; (2) open criticism of senior management; (3) the near-termination of another employee, Judd Lawrie; and (4) a reported threat against CFO Millard's safety. In response, Cagle relies primarily on the timing between his termination and his e-mail to Millard and Pruim regarding a possible need for additional time off due to illness, as well as the positive statements in his performance evaluations, increase salary rates, and bonus payments. As for any "suspicious" timing, Cagle's claim lacks merit. FinishMaster has produced documentary evidence in the form of draft termination letters indicating that the decision to terminate Cagle's employment was made sometime on or before April 26, 2002 — well before his May 2, 2002 e-mail. Thus, Cagle's timing argument collapses.
As for the other nondiscriminatory reasons asserted by FinishMaster, Cagle does not deny the August 2001 incident where he became intoxicated the night before an important meeting, the heated exchange with Millard in front of his co-workers, nor the threat against Millard. (Cagle Dep. Defs.' Ex. 1 at 93-98, 271-76; 99-111.) Instead, Cagle claims that FinishMaster did not take these incidents seriously, or at least gave him the impression that they were "closed." The Seventh Circuit has noted, however, that insubordination as a reason for termination is not in and of itself related to an employee's disability or "any other forbidden category." Dvorak, 289 F.3d at 487. Even casting aside the Judd Lawrie incident, which the parties dispute as to the facts and so the court must accept Cagle's version, there is still evidence of Cagle's insubordinate behavior in the record. Cagle has attempted to demonstrate that each incident when standing alone is not a proper basis for termination. However, Cagle has failed to address that the culmination of these incidents led to FinishMaster's ultimate decision to end his employment. Moreover, Cagle has not sufficiently responded to statements in Anne Simcoe's affidavit (Defs.' Ex. 5.), in which she describes Cagle's threat against Millard and Cagle's insubordinate behavior directed toward senior management.
Cagle has the chance to offer a rebuttal on the question of pretext, but must "`show that the employer's reasons for some negative job action are false, thereby implying (if not actually showing) that the real reason is illegal discrimination . . . [T]he question is not whether the employer's reasons for a decision are right but whether the employer's description of its reasons is honest.'" Id. (quotation omitted). Accordingly, the evidence cited by Cagle must "tend to prove the proffered reason was factually baseless, not the actual motivation for the discharge, or insufficient to motivate the discharge. It is not enough to show the decision was `mistaken, ill considered, or foolish.'" Dyrek v. Garvey, 334 F.3d 590, 598 (7th Cir. 2003) (citation and quotations omitted). FinishMaster has satisfied this test. Not only can Cagle point to nothing that suggests FinishMaster officials did not honestly believe they were addressing an insubordinate-employee situation, his own testimony indicates that the company lacked any discriminatory animus. Specifically, Cagle testified that "Bob Millard was always supportive throughout my illness up to the very end." (Cagle Dep. Defs.' Ex. 1) The record is replete with evidence that FinishMaster went beyond the call to assist Cagle throughout his employment, including those times when he was allegedly suffering from the same medical conditions that he asserts were the reasons for his discharge. See Spath v. Hayes Wheels Int'l-Indiana, Inc., 211 F.3d 392, 398 (7th Cir. 2000). In sum, Cagle has no evidence that indicates FinishMaster's reasons for discharge were pretextual.
D. FMLA Claims
Cagle claims that FinishMaster refused to grant him a leave to which he was entitled, thereby interfering with his substantive FMLA rights, and that the company retaliated or discriminated against him for trying to exercise those rights. These two claims — one based on substantive rights, 29 U.S.C. § 2615(a)(1), and the other on prohibited conduct, 29 U.S.C. § 2615(a)(2) — are subject to different legal analyses and must be addressed separately. See Thomas v. Pearle Vision, Inc., 251 F.3d 1132, 1139 (7th Cir. 2001).
In his complaint, Cagle's substantive FMLA claim references the language in § 2615(a)(1) but does not cite to that provision. The court presumes this was a typographic error and will proceed as though Cagle is bringing his FMLA action under both § 2615(a)(1) (substantive rights) and § 2615(a)(2) (discrimination).
29 U.S.C. § 2615(a)(1) provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a)(2) provides that "[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter."
i. Substantive FMLA rights
The FMLA provides for periods of leave for qualified employees under certain circumstances. In this case, Cagle claims he was entitled to leave because of a "serious health condition" that made him "unable to perform the functions of the position" that he held at FinishMaster. 29 U.S.C. § 2612(a)(1)(D). To demonstrate a violation of this substantive FMLA right, Cagle "must establish, by a preponderance of the evidence, that he is entitled to the benefit that he claims." Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017-18 (7th Cir. 2000). FinishMaster argues that Cagle cannot meet this requirement for two reasons: (1) the company had already decided to discharge him before he provided his alleged notice of his need for FMLA leave, or, in the alternative, (2) his May 2, 2002, e-mail did not constitute legally sufficient notice under the FMLA. The court agrees.
As the court noted in its discussion of Cagle's ADA claim, FinishMaster has provided uncontroverted documentary evidence that indicates the decision to terminate Cagle's employment came on or before April 26, 2002 — several days before Cagle's May 2, 2002, e-mail, which he asserts provided the company with notice of his FMLA leave request. This sequence of events is fatal to Cagle's substantive-rights claim. See Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 805 (7th Cir. 2001) (holding that employee must prove that employer would not have discharged her had she not taken FMLA leave); Beno v. United Tel. Co. of Fla., 969 F. Supp. 723, 726 (M.D. Fla. 1997).
Furthermore, Cagle did not provide legally sufficient notice of his leave request. When the need for leave is "foreseeable," the employee must give notice of that need at least thirty (30) days before the leave is to begin. 29 C.F.R. § 825.302(a). The regulations also state that "[w]hen planning medical treatment, the employee must consult with the employer and make a reasonable effort to schedule the leave so as not to disrupt unduly the employer's operations, subject to the approval of the health care provider." 29 C.F.R. § 825.302(e). Cagle testified that, during the six months preceding his May 2, 2002, e-mail to Millard and Pruim, he had been receiving on-going treatment for the medical issues that led him to send the e-mail. During this time, he and his doctor "discussed . . . off and on" his need for an extended leave of absence, but he "put [the leave] off because [he] felt [he] need[ed] to be at work. . . ." (Cagle Dep. Defs.' Ex. 1 at 137-38.) Even with all inferences drawn in Cagle's favor, such testimony indicates that his leave request was foreseeable, triggering the thirty-day notice requirement. Furthermore, Cagle states that, as of May 2, 2002, he knew that he wanted his leave to commence around May 7, 2002, and that its anticipated duration was six months. Yet Cagle's e-mail makes no reference to dates or possible duration — in contravention of the regulations. See 29 C.F.R. § 825.302(c) ("employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave") (emphasis added); see also Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001) (providing that employers are entitled to "the sort of notice that will inform them not only that the FMLA may apply but also when a given employee will return to work.").
Cagle's May 2, 2002, e-mail simply states that (1) during the previous two months he had been receiving medical treatment that "had begun rebuilding [his] immune system and giving [him] more strength from [his] Chronic Fatigue Syndrome; (2) "in recent days [he had] not been doing well;" (3) the previous day he had been "diagnosed with Viral Meningitis again;" (4) "only rest and a strong immune system can fight off the virus;" and (5) he was "unsure what future treatments will be." (Cagle Dep. Defs.' Ex. 1 at Ex. 11.) The e-mail makes no mention of any need for extended leave, and begins and ends with Cagle stating that its purpose was to keep Millard and Pruim updated on his medical status: ""I know both of you [Millard and Pruim] have been genuinely concerned about my health over the past 3 and half years," and "I thought I would give you a heads up because I know that you do care." ( Id.) As such, the e-mail was not a notice from an employee that he has a serious health condition and is unable to perform his job. Cagle's claim of a substantive FMLA-rights violation fails as a matter of law.
ii. Discrimination/Retaliation
The Seventh Circuit issued its decision in Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir. 2002), in order to clarify the proper methods for evaluating summary judgment in retaliatory discharge cases. Stone demonstrates that Cagle can pursue two routes in his attempt to prevent summary judgment on his FMLA retaliation claim. The first route is narrower than the McDonnell Douglas burden-shifting regime. Id. at 642-43. If Cagle takes this route, he must "present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity . . . and as a result suffered the adverse employment action of which he complains." Id. at 644. If he presents such evidence and his evidence is uncontradicted, then he is entitled to summary judgment. Id. If, however, his evidence is contradicted, then the case goes to trial, unless FinishMaster presents unrebutted evidence that it "would have taken the adverse employment action against the plaintiff even if [it] had had no retaliatory motive. . . ." Id. If FinishMaster offers such evidence, then it is entitled to summary judgment. Id. This is because FinishMaster will have shown that Cagle was not harmed by retaliation. Id.
If Cagle takes the second route, which is premised on the McDonnell Douglas regime, then he must "show that after [engaging in protected activity] only he, and not any similarly situated employee who did not [engage in protected activity], was subjected to an adverse employment action even though he was performing his job in a satisfactory manner." Id. If FinishMaster produces no evidence in response, then Cagle is entitled to summary judgment. Id. If FinishMaster "presents unrebutted evidence of a noninvidious reason for the adverse action, [it] is entitled to summary judgment." Id. If FinishMaster's evidence of its reason for discharging Cagle is rebutted, then the case must go to trial. Id.
Cagle has not cited to Stone, but appears to be taking the first route by arguing that the timing between his May 2, 2002, e-mail and his termination on May 7, along with the amount of medical leave he had taken in previous years, both indicate that there is a direct link between his FMLA leave request and the adverse employment action taken against him. In other words, Cagle's direct evidence is limited to the proximity in timing between his e-mail, alleged to have constituted proper notice under the FMLA, and his termination, along with an awareness on the part of FinishMaster that he had previously required leave. This argument fails. First, even if his e-mail constituted legally sufficient notice under the FMLA (which this court holds it did not), the record demonstrates that the decision to end Cagle's employment came before the e-mail was received. As the Stone court emphasized, "mere temporal proximity between the [protected activity] and the action alleged to have been taken in retaliation for that [activity] will rarely be sufficient in and of itself to create a triable issue." Id. Second, Cagle's argument that his previous leaves of absence led to his discharge is untenable. As stated throughout this entry, the record reveals that FinishMaster greatly assisted Cagle throughout his struggles with various medical conditions. Cagle offers no evidence of other circumstances that might reasonably suggest that his leave request was related to his discharge. As to the second route outlined in Stone, Cagle has failed to offer any evidence that he was discharged after requesting FMLA leave, but similarly situated employees who did not request leave were not, even though he was performing satisfactorily. Moreover, as discussed above and throughout this entry, FinishMaster has presented uncontroverted evidence of lawful reasons for Cagle's discharge, including insubordination.
E. ERISA Claim
The final claim in Cagle's complaint asserts discrimination by FinishMaster in violation of ERISA § 510, 29 U.S.C. § 1140. Cagle contends that by discharging him, FinishMaster intentionally interfered with his attainment of employee health insurance benefits. To prevail, Cagle would need to show more than a loss of benefits — he must demonstrate that FinishMaster terminated his employment with the "specific intent" of violating § 510. Little v. Cox's Supermarkets, 71 F.3d 637, 642 n. 3 (7th Cir. 1995). Accordingly, "[n]o action lies where the alleged loss of rights is a mere consequence, as opposed to a motivating factor behind the termination." Meredith v. Navistar Int'l Trans. Corp., 935 F.2d 124, 127 (7th Cir. 1991) (internal quotation omitted). Cagle will establish a prima facie case for a § 510 violation if he shows the following: (1) he belongs to the protected class; (2) he was qualified for the position at issue; and (3) he was discharged under circumstances that provide some basis for believing a specific intent to discriminate or retaliate was present. Little, 71 F.3d at 642 (citation omitted). In this case, the court holds that Cagle has not carried this burden because he cannot show the necessary intent on the part of FinishMaster.
"It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan. . . ." 29 U.S.C. § 1140.
In an attempt to show that FinishMaster had a specific intent to retaliate or discriminate, Cagle points to two alleged facts: (1) when he made claims for health benefits the company received documentation concerning those benefit claims and therefore were aware of the "burden" placed on the company's health insurance plan and the costs involved in his claims, and (2) during his employment and following his discharge, some of his claims were denied by FinishMaster's benefits administrator and/or insurance provider. Even if construed sympathetically in Cagle's favor, the court fails to see how the mere awareness on the part of FinishMaster that Cagle had previously made claims for benefits indicates discrimination. To hold otherwise, as FinishMaster artfully illustrates, would be akin to finding that an employer's awareness that an employee is female, without more, demonstrates that her discharge was because of gender. Furthermore, the fact that some of his medical claims were denied by third-party administrators does not show a specific intent to discriminate or retaliate. It is undisputed in the record that FinishMaster did not participate in the decision-making process related to whether Cagle's benefit claims were paid or denied. (Pruim Decl. Defs.' Ex. 4.) Cagle submitted his claims directly to the third-party administrators, who then determined whether claims would be paid or denied based on FinishMaster's benefits plan. ( Id.) In addition, the fact that Cagle's discharge may ultimately save FinishMaster money on insurance benefits is insufficient as a matter of law to demonstrate a specific intent to retaliate or discriminate. See Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 239 (4th Cir. 1991). Finally, just as the court holds with respect to Cagle's ADA and FMLA claims, even had Cagle established a prima facie case for a violation of ERISA § 510, there is no evidence that the nondiscriminatory reasons for Cagle's discharge advanced by FinishMaster are pretextual.
III. CONCLUSION
As noted in section II.B of this Entry, Defendant FinishMaster, Inc., is not a proper party to this lawsuit and should be DISMISSED. Furthermore, the court finds that the material facts of this case are not in dispute. The evidence, even with all reasonable inferences drawn in Plaintiff's favor, demonstrates that Plaintiff cannot satisfy one or more of the essential elements of each claim asserted in the complaint. Therefore, the motion for summary judgment (dkt. no. 36) filed by Defendant FinishMaster Services, Inc., will be GRANTED.