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granting summary judgment where employee "failed to show, beyond mere speculation, that [the employer] was motivated to terminate him because of an anticipated health insurance claim"
Summary of this case from CHMIEL v. OPTO TECHNOLOGY, INC.Opinion
CAUSE NO. 1:00-CV-254
October 7, 2003
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
This matter is before the Court on the fully briefed motion for partial summary judgment filed by Defendant, Bi-County Services, Inc. ("BCS"), on April 3, 2001. Plaintiff, John Kemerly ("Kemerly"), filed a Response Brief on May 8, 2001, and BCS filed a Reply on August 20, 2003.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
Resolution of the present motion suffered from two substantial delays, the first when BCS's insurer, Reliance Insurance Company, was placed into rehabilitation, and the second when the Indiana Guaranty Association was added as a defendant.
Kemerly's complaint cites to three statutes as the basis for his claims: the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq. After briefing, it appears that Kemerly is advancing six (6) claims against BCS stemming from his termination: (1) denial of his FMLA right to paid leave and other benefits, 29 U.S.C. § 2615(a)(1); (2) retaliation for exercising those FMLA rights, 29 U.S.C. § 2615(a)(2); (3) preemptive denial of ERISA-protected health insurance benefits, 29 U.S.C. § 1140 (better known as ERISA § 510); (4) disability discrimination, 42 U.S.C. § 12112(a); (5) ADA retaliation, 42 U.S.C. § 12112(a); and (6) a failure to reasonably accommodate his disability, 42 U.S.C. § 12112(b)(5)(A); The current motion seeks summary judgment on all but the first claim. ( See Def's Mem. In Supp. of Mot. for Partial Summ. J. at 14.)
The record consists of the declaration of BCS's President, John Whicker ("Whicker") ("Whicker Decl. ¶ ___"), Whicker's deposition ("Whicker Dep. at ___"), the deposition of BCS's Human Resource Manager, Marcia Nicholas ("Nicholas") ("Nicholas Dep. at ___"), BCS's Employee Handbook and various internal memos, Kemerly's deposition ("Kemerly Dep. at ___"), Kemerly's affidavit ("Kemerly Aff. ¶ ___"), and various other documents that may be referenced infra.
After examining the motion and the relevant law, the Court finds that the motion should be GRANTED.
II. FACTUAL BACKGROUND
The following recitation is drafted in a light most favorable to the non-moving party, Kemerly, and grants to him every reasonable inference. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2511 (1986).
BCS, a not-for-profit agency, provides educational and work opportunities for disabled people, either by getting them jobs in the local community or by employing them in its workshops, one located in Bluffton and the other in Decatur, Indiana. (Whicker Decl. ¶ 4; Whicker Dep. at 6; Pl.'s Resp., Ex. D.) In the spring of 1998, BCS decided to hire its first full-time salesperson in hopes of increasing revenue and proceeded to advertise for a "Sales Representative." (Whicker Dep. at 5, 10-13; Pl.'s Resp., Ex. F.)
Although BCS calls its decision to hire a full-time salesperson an "innovation" and an "experiment" (Def.'s Mem. In Supp. of Mot. for Partial Summ. J. at 9), Kemerly maintains that his was never communicated to him (Kemerly Aff. ¶ 3). However, Kemerly offers nothing that casts doubt on the proposition that BCS honestly held this belief when it hired him.
Kemerly, who suffers from degenerative joint disease in his right hip (Pl.'s Resp., Ex. V), applied and was interviewed (Kemerly Dep. at 16-17; Pl.'s Resp., Exs. I, J). Whicker hired Kemerly effective April 6, 1998 (Kemerly Dep. at 16-17; Pl.'s Resp., Ex. K), and BCS enrolled him in its group health insurance plan, effective July 1, 1998 (Pl.'s Resp., Exs. N, O, P, Q, R). Kemerly started at One Thousand One Hundred Fifty-Three and 85/100 Dollars ($1153.85) biweekly, plus a five percent (5%) commission on his gross sales (Pl.'s Resp., Ex. L.) Kemerly told BCS about his hip condition from the start, assured them he could meet the job's physical demands, and in fact passed a post-hire physical. (Kemerly Dep. at 17-18, 26.)
Kemerly received an "Employee Appreciation Raise" on December 23, 1998 (four (4) months before his termination), bringing his base salary to One Thousand One Hundred Seventy-Six and 93/100 Dollars ($1176.93) biweekly. (Pl.'s Resp., Ex. T.)
Kemerly's job was to generate sales and increase revenue. ( Id. at 26; Whicker Dep. at 10.) Indeed, looking at just that side of the ledger, Kemerly produced positive results. More precisely, from April 1997 through March 1998 ( i.e., before Kemerly's hire), BCS's total sales were Sixty Six Thousand Seven Hundred Seventeen and 93/100 Dollars ($66,717.93), but from April 1998 through March 1999, after he was hired, BCS's sales more than doubled, to One Hundred Twenty Eight Thousand Four Hundred Forty One and 21/100 Dollars ($128,441.21). (Pl.'s Resp., Ex. U.) However, BCS looks at these numbers more critically, noting that although sales initially increased and grew overall, they dropped as time went on. (Def's Reply at 4.) For instance, while monthly sales from July to November 1998 averaged Fifteen Thousand Five Hundred Fifty and 50/100 Dollars ($15,550.50), from December 1998 to March 1999, the last months of Kemerly's employment, sales only averaged Four Thousand Five Hundred Ninety-Two and 9/100 Dollars ($4592.09) per month. (See Pl.'s Resp., Ex. U.)
The parties disagree about whether Kemerly was to land contracts for just the Bluffton workshop or whether he also had sales responsibilities for the Decatur workshop. (Whicker Decl. ¶ 3; Kemerly Aff. ¶ 6.3.) The point has some significance, because Kemerly suggests that BCS is now deliberately misrepresenting his performance by focusing solely on his allegedly poor Bluffton sales and ignoring his allegedly good Decatur sales. ( Id. ¶ 6.3, 6.13.) Kemerly reinforces this point by alleging that, roughly a week before being terminated, Whicker told him not to "sell any [more] for Decatur because it's full." (Kemerly Aff. ¶ 6.3.)
Although disputed, the first inkling that Kemerly might be in trouble at BCS came on February 10, 1999, when Whicker drafted a memo purporting to document a meeting with Kemerly. (Kemerly Dep. at 41-45; Pl.'s Resp., Ex. Y.) Among other things, the memo suggests that there was "no work in the [Bluffton] workshop," although Kemerly reportedly told Whicker he was working on some leads. (Id.) While Kemerly admits he had a meeting with Whicker on that date, he contends it "was not about `low sales' or performance issues." (Kemerly Aff. ¶ 6.7.)
Another memo from Whicker to Kemerly, allegedly written on February 22, 1999, expressed a concern about a lack of results for the Bluffton workshop and documented a downward sales trend through January 1999. (Kemerly Dep. at 45-48; Pl.'s Resp., Ex. Z.) The memo ended by observing that "[t]he month of February is not going to be a good month for us either from a sales standpoint." (Pl.'s Resp., Ex. Z.) Kemerly contends that he never received this memo or its attachment, its figures are purposely misleading, and he did not have meetings with Whicker as frequently as the memo indicates. (Kemerly Dep. at 45-49.)
On February 25, 1999, Whicker allegedly met with Kemerly again to discuss the lack of jobs in the Bluffton Workshop. (Pl.'s Resp., Ex. AA.) In this meeting, Whicker allegedly informed Kemerly that BCS would soon be "forced to make a business decision as to whether or not to keep a sales representative." ( Id.) Furthermore, Whicker allegedly informed Kemerly that the "situation was a serious one and that [BCS] could not continue with little sales." ( Id.) However, Kemerly not only denies this meeting occurred, but also says he was never warned or counseled about his sales performance or told that his job was in jeopardy. (Kemerly Aff. ¶¶ 6.7, 6.8, 6.12.)
At the outset, Whicker apparently expected that Kemerly would "`bury' [BCS] with work" and ultimately was disappointed it did "not [work] out that way." (Pl.'s Resp., Ex. AA.)
Whicker allegedly told Kemerly that his effort was not being questioned, just his lack of results. (Pl.'s Resp., Ex. AA.)
In any event, notwithstanding the dispute about the alleged February meetings, it is undisputed that on March 2, 1999, Whicker wrote Kemerly again to discuss "[j]obs for [the] Bluffton workshop." (Kemerly Dep. 50-54; Pl.'s Resp., Ex. BB.) Specifically, Whicker told Kemerly he was "not satisfied with five (5) job quotes since the middle of November." (Pl.'s Resp., Ex. BB.) Unlike the prior memos, Kemerly admits receiving this one, a point he clearly has to concede since he responded by detailing the five (5) jobs which were considered for the Bluffton Shop and describing an additional nineteen (19) calls he made on other customers. (Kemerly Dep. 50-54; Pl.'s Resp., Ex. CC.)
Shortly thereafter, Kemerly's hip condition became so painful and debilitating that he needed surgery. (Kemerly Dep. at 20-21, 61-63; Pl.'s Resp., Ex. V.) On April 19, 1999, Kemerly gave Nicholas a doctor's slip indicating he would be receiving a total hip replacement and would be unable to work for approximately four (4) months. (Pl.'s Resp., Ex. V; Nicholas Dep. at 6.) Nicholas granted Kemerly FMLA leave that same day and then told Whicker that Kemerly needed to be off work for four (4) months. (Pl.'s Resp., Ex. W; Nicholas Dep. at 6-7). Whicker was admittedly "flabbergasted" by the news. (Whicker Dep. at 21.)
Two days later, on April 21, 1999, Whicker terminated Kemerly, explaining that "[i]t isn't working." (Kemerly Dep. at 55.) It was then that Kemerly told Whicker that Nicholas had already granted him medical leave. ( Id. at 62-63.) Whicker responded with, "Why doesn't anybody tell me anything?" ( Id. at 63.) However, Whicker concedes that Nicholas had actually told him two (2) days earlier about Kemerly's hip surgery and resulting inability to work. (Whicker Dep. at 20-21.)
While Whicker clearly knew that Kemerly needed surgery and time off work before he terminated him, the record does not reveal he knew that Kemerly had already been granted FMLA leave by Nicholas (Whicker Dep. at 21-22), which may explain his response to Kemerly.
According to BCS, Kemerly was terminated because he was "unable to produce results sufficient to justify the cost of his continued employment." (Whicker Decl. ¶ 11.) In fact, with Kemerly's termination, BCS simply abandoned the idea of having a sales representative (Def.'s Answer to First Set of Interrogs., No. 5; Def's Answer to Second Set of Interrogs., No. 12), apparently a wise decision in retrospect given that sales for the Bluffton Workshop actually increased after Kemerly was gone. (Whicker Decl. ¶ 13.)
However, Kemerly disputes the honesty of BCS's stated reason for his termination and points to several facts he thinks are suspicious. For instance, Kemerly points to Whicker being "flabbergasted" to learn that Kemerly needed time off, followed by his termination only two days later. In addition, Kemerly observes that had he continued his employment at BCS, his hip surgery would have been covered by BCS's health insurance, something Whicker also knew. (Whicker Dep. at 22.) Kemerly is also critical that BCS failed to follow its own progressive discipline procedures set out in its Employee Handbook (Pl.'s Resp., Ex. S at 8-9; Def's Answer to Pl.'s Second Set of Interrogs. Nos. 1, 2, 6) and thinks it suspicious he was fired for low sales when he was never given any sales goals or quotas (Whicker Dep. at 7). Kemerly further claims that BCS is misrepresenting his overall sales performance by omitting his alleged sales for the Decatur workshop. (Kemerly Aff. ¶ 6.3, 6.13.) Finally, Kemerly says that BCS's claim of insufficient results does not square with what it allegedly told the Indiana Workforce Development Office: that Kemerly was discharged "due to [his] inability to perform the work." (Pl.'s Resp., Ex. GG.)
III. STANDARD OF REVIEW
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v. Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983). In ruling on a summary judgment motion, the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained," and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First Nat'l Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.
In employment discrimination matters, the summary judgment standard is applied with "added rigor." Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). The Seventh Circuit reiterated this doctrine in Robinson v. PPG Industries, Inc., 23 F.3d 1159 (7th Cir. 1994), citing the standard set out in Sarsha:
Summary judgment is appropriate only when the materials before the court demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict.23 F.3d at 1169 (internal citations omitted).
However, the Seventh Circuit has clarified its use of the phrase "added rigor," stating that the "original use of this phrase indicates that it was merely included to stress the fact that employment discrimination cases typically involve questions of intent and credibility, issues not appropriate for this court to decide on a review of a grant of summary judgment." Alexander v. Wisconsin Dept. of Health and Family Servs., 263 F.3d 673, 681 (7th Cir. 2001).
IV. DISCUSSION
BCS's motion seeks summary judgment on five (5) of Kemerly's claims, which will be discussed seriatim after some general analytical principles are detailed.
With the exception of Kemerly's failure-to-accommodate claim under the ADA, all of his claims are subject to the analysis used in virtually all employment discrimination cases. The plaintiff can contest summary judgment by using either the direct or indirect method of proof. King v. Preferred Technical Group, 166 F.3d 887, 891-92 (7th Cir. 1999). The direct method requires the plaintiff to produce enough evidence, whether direct or circumstantial, Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994), to create a triable issue of whether the adverse employment action had a discriminatory motivation. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997).
The indirect method is the well-known McDonnell Douglas burden-shifting framework. E.g., King, 166 F.3d at 891-92. Here, the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). The precise elements of the prima facie case vary depending on the statute at issue. Compare Salus v. GTE Directories Serv. Corp., 104 F.3d 131, 135 (7th Cir. 1997) (ERISA § 510) with Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001) (ADA). If the plaintiff successfully establishes a prima facie case, the burden then shifts to the defendant to provide a legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Once the defendant has done so, the burden shifts back to the plaintiff to show that the proffered reason is merely a pretext for discrimination. Id., 411 U.S. at 804, 93 S.Ct. at 1825. The plaintiff can show pretext by presenting evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge. Nawrot v. CPC Int'l, 277 F.3d 896, 906 (7th Cir. 2002). In the context of a motion for summary judgment, if the employer offers a pretext for why it fired the employee, the trier of fact is permitted, although not compelled, to infer that the real reason was discriminatory. Jackson v. E.J. Brach Corp., 176 F.3d 971, 984 (7th Cir. 1999).
The court will apply these principles to each of Kemerly's first four (4) claims.
A. Kemerly's FMLA Retaliation Claim Fails
Kemerly contends that BCS terminated him in retaliation for attempting to exercise his FMLA rights, in violation of 29 U.S.C. § 2615(a)(1). (Complaint ¶ 1.) Kemerly relies on both the direct and indirect methods of proof for this claim. Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003) (holding that plaintiff may prove a claim of retaliation by utilizing either the direct method or indirect burden-shifting method).
"It 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. § 261 5(a)(1).
1. Kemerly Cannot Establish a Direct Case of FMLA Retaliation
In the absence of direct evidence, plaintiffs can seek to avert summary judgment by presenting enough circumstantial evidence to compose "a convincing mosaic of discrimination against the plaintiff." Troupe, 20 F.3d at 737. This circumstantial evidence is of three general types: (1) suspicious timing, ambiguous statements, or behavior toward other employees; (2) evidence that similarly situated employees were treated differently; or (3) evidence that the employee did not deserve termination and that the employer's reason for termination is a pretext for discrimination. Volovsek v. Wis. Dep't of Agric., Trade and Consumer Prot., F.3d, No. 02-2074, 2003 WL 22146393, at *8 (7th Cir. Sept. 18, 2003). Such evidence is sufficient to survive summary judgment if it creates a triable issue of whether retaliatory intent motivated the adverse employment action. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997); see Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 938-39 (7th Cir. 2003). Put another way, Kemerly must produce evidence from which a rational trier of fact could reasonably infer that BCS made the decision to terminate him because he attempted to exercise his rights under the FMLA. Marshall v. Am. Hosp. Ass'n, 157 F.3d 520, 525 (7th Cir. 1998). Although Kemerly attempts to form a convincing mosaic with five pieces of evidence, they are insufficient, either alone or in combination, to raise even an inference of intentional discrimination.
Direct evidence "usually requires an admission by the decisionmaker that his actions were based on" protected status ( i.e., receipt of FMLA leave). Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 321 (7th Cir. 2003); see Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002) (holding that direct evidence of retaliation is "evidence that establishes [retaliation] without resort to inferences from circumstantial evidence. . . ."), cert. denied, 537 U.S. 879, 123 S.Ct. 79 (2002). Kemerly has no such evidence.
The first three bits of evidence advanced by Kemerly purport to show that BCS could not have honestly believed its proffered reason for dismissing him when it said his position was not cost-effective. First, Kemerly asserts that BCS's belief could not have been honestly held because he effectively doubled the previous year's sales. (Pl.'s Resp. at 12-13.) However, this observation, true as far as it goes, is itself misleading. More precisely, and more critically as far as BCS is concerned, Kemerly's sales figures plummeted during the last four months of his tenure. (Def's Reply at 4; Pl.'s Resp., Ex. U.) This lack of sales started to show up in BCS's pipeline at the Bluffton workshop in March ( see Pl.'s Resp., Ex. BB) and perhaps as early as February 1999 (Pl.'s Resp., Exs. Z, AA). In any event, by March 2, 1999, Whicker was clearly concerned about Kemerly's level of production and there was no subsequent improvement. (Pl.'s Resp., Ex. BB.) Accordingly, BCS easily could have come to the conclusion that Kemerly's position was not cost-effective, which is probably why Kemerly has failed to show that BCS did not honestly believe this to be the fact when it terminated him. See Riley v. UOP LLC, 244 F. Supp.2d 928, 943 (N.D.Ill. 2003) (holding that when reviewing a case under Troupe, a court applies the same standard for proving pretext that it applies under the McDonnell Douglas analysis).
Where a plaintiff attempts to infer discrimination by attacking the defendant's proffered reason for termination, he must show the reason to be dishonest, not merely incorrect. See, e.g., Nawrot, 277 F.3d at 906; Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998).
Kemerly also alleges that BCS's figures are misleading because they do not include his sales for the Decatur workshop. (Kemerly Aff. ¶ 6.3, 6.13.) Indeed, contrary to BCS's claim that Kemerly was not responsible for Decatur sales (Whicker Decl. ¶ 3), Kemerly insists that his duties included Decatur sales and further alleges that shortly before his termination Whicker told him not to sell any more for Decatur because it was "full" (Kemerly Aff. ¶ 6.3, 6.13). Dovetailed with this is something Kemerly finds "mysterious": his Decatur sales are not included in the sales figures BCS advances. (Pl.'s Resp. at 6.) Of course, this is part of Kemerly's effort to show that he did not deserve to be terminated, and that BCS is lying when it says his sales were insufficient to justify his continued employment.
However, Kemerly fails to explain how BCS's admitted focus on only his Bluffton sales undermines the honesty of its belief that his position was not justified and that it is in fact lying. See Riley, 244 F.2d at 943 ("[W]hen reviewing a grant of summary judgment, the only question before us is whether the plaintiff has provided evidence from which a rational trier of fact could infer that the employer's stated reasons for taking the adverse actions were lies"), citing Alexander v. Wis. Dep't of Health and Family Serv., 263 F.3d 673, 683 (7th Cir. 2001).
After all, Kemerly's sales at Bluffton were disappointing to Whicker, as Whicker clearly implied in his March 2 memo and well over a month before he terminated Kemerly. ( See Pl.'s Resp., Ex. BB.) Moreover, Whicker apparently did not see any hope for a turnaround, as Kemerly's Bluffton sales continued to spiral downward. So, at best, Kemerly is left to argue that BCS should also have considered Kemerly's Decatur sales when evaluating his position, and that just focusing on Bluffton made its decision a poorly reasoned one. However, it is not enough for Kemerly to show that BCS's decision was "mistaken, ill considered, or foolish," Dyrek v. Garvey, 334 F.3d 590, 598 (7th Cir. 2003), because to raise an inference of retaliation, he must establish that BCS did not honestly believe the reason it gave for terminating him. Alexander, 263 F.3d at 683; Pitasi v. Gartner Group, Inc., 184 F.3d 709, 718 (7th Cir. 1999). Without more, the allegation that BCS did not consider all relevant data when making its decision to terminate him is simply inadequate to show that its belief was dishonestly held. See Kariotis v. Navistar Int'l Tramp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (holding that "a reason honestly described but poorly founded" is not evidence of discrimination).
Kemerly also goes on to challenge the fact that BCS failed to follow the progressive discipline procedures set out in its employee handbook before it terminated him. (Pl.'s Resp. at 13.) However, this alleged "failure" is hardly inconsistent with BCS's position. More particularly, Whicker never felt that Kemerly needed disciplining, rather, he simply concluded that Kemerly's position was no longer sustainable.
Moreover, retaliation cannot necessarily be inferred from a company's failure to abide by its stated discipline procedures, and certainly no such inference can arise here, where no one suggests that discipline was even warranted See Anderson v. Stauffer Chem. Co., 965 F.2d 397, 402 (7th Cir. 1992) (holding that employer with progressive discipline policy was not required to use it); Randall v. Unitech Sys., Inc., 243 F. Supp.2d 822, 832 (N.D.Ill. 2003) (citing Anderson and holding that employer's failure to follow progressive discipline program, without some doubt raised as to its genuineness for not doing so, does not imply discrimination); Barakat v. Taco Bell, Inc., 970 F. Supp. 634, 640 (N.D.Ill. 1997) (same).
Kemerly also makes much of Whicker's "flabbergasted" reaction when he learned from Nicholas that Kemerly needed surgery and would be taking time off. (Pl.'s Resp. at 12.) Although it is unclear why Kemerly thinks this evidence is so important, he apparently sees this as the type of ambiguous statement that establishes retaliation under Troupe. However, such statements directly support an inference of retaliation only if they were made (1) contemporaneously with the adverse employment decision; and (2) in reference to that decision. Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001). "Stray remarks" that do not meet these criteria, while sometimes useful in a McDonnell Douglas analysis, are rarely relevant under the direct method of proof. See id. Of course, here, Whicker's reaction was neither a statement nor contemporaneous with the action taken. Moreover, the fact that a supervisor would be surprised, even "flabbergasted," to learn that his only salesperson would soon be gone on four (4) months' medical leave seems quite natural. Therefore, Kemerly has offered no ambiguous statements that provide direct evidence of a retaliatory motive.
Although Kemerly repeatedly argues ( see Pl.'s Resp. at 15-20) that Whicker's flabbergasted reaction is also direct evidence, it clearly is not. See note 11, supra.
Finally, Kemerly argues that the suspicious timing of his termination, two (2) days after receiving FMLA leave, is circumstantial evidence of retaliation. However, suspicious timing, without more, and there is nothing more here, is insufficient to create a triable issue of retaliation. Stone, 281 F.3d at 644 ("mere temporal proximity between the [protected activity] and the [allegedly retaliatory action] will rarely be sufficient . . . to create a triable issue"); Bilow v. Much Shelist Freed Denenberg Ament Rubenstein, P.C., 277 F.3d 882, 895 (7th Cir. 2001) (plaintiff "needs more than a coincidence of timing to create a reasonable inference of retaliation"); Contreras v. Suncast Corp., 237 F.3d 756, 765 (7th Cir. 2001); Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000) ("The mere fact that one event preceded another does nothing to prove that the first event caused the second"). This is particularly true since it appears that Whicker began harboring doubts about the whole salesperson innovation well over a month before terminating Kemerly.
In short, the circumstantial evidence Kemerly puts forth is insufficient to establish a case of FMLA discrimination under the direct method of proof. 2. Kemerly Cannot Even Establish a Prima Facie Case of FMLA Discrimination Under the Indirect Method
Kemerly also offers a few other meritless pieces of "evidence." For instance, Kemerly asserts that BCS told the Indiana Workforce Development investigator that Kemerly "was discharged due to inability to perform the work." (Pl.'s Resp. at 13.) However, this misstates the record; those words are nothing more than the investigator's characterization of what happened ( see Pl.'s Resp., Ex. GG), and there is no evidence he was repeating what BCS told him.
Kemerly also complains that BCS never gave him specific sales goals. (Pl.'s Resp. at 13.) However, he does not explain how this shows that BCS's proffered reason for his termination was a dishonestly held belief. In any event, it is unlikely that BCS would have established declining sales goals, the actual state of Kemerly's sales at the time of his termination.
Kemerly also questions why he received an "Employee Appreciation Raise" four (4) months before his termination if his sales were unsatisfactory. (Pl.'s Resp. at 13.) However, a cursory look at the document to which Kemerly cites provides the answer: every employee at BCS received that raise, and it was based on tenure, not performance. (Pl.'s Resp., Ex. T.) Thus, this evidence is also of no use to Kemerly.
Finally, Kemerly alleges that he never met with Whicker on February 22 or February 25 of 1999, and that Whicker fabricated memos of those alleged meetings in order to justify his termination. (Pl.'s Resp. at 7-8.) However, bare accusations that the employer fabricated evidence to justify a termination are "at best, speculation, and speculation is not enough to avoid summary judgment." Anderson v. Stauffer Chem. Co., 965 F.2d 397, 402 (7th Cir. 1992); see Sanders v. Women's Treatment Ctr., 9 F. Supp.2d 929, 941 (N.D.Ill. 1998). Moreover, although Kemerly contends he was not given any warning that his job was in jeopardy ( see Kemerly Aff. ¶ 3, 6.7, 6.8, 6.12), Whicker's March 2nd memo clearly expresses some dissatisfaction with Kemerly's sales results (see Kemerly Dep. at 50-54; Pl.'s Resp., Exs. BB, CC).
The Seventh Circuit recently clarified how the indirect method of proof is to be applied in retaliation cases. Stone, 281 F.3d at 644. First, the plaintiff must establish a prima facie case by showing that (1) after engaging in protected activity; (2) only he, and not any similarly situated employee who did not file a charge; (3) was subjected to an adverse employment action; (4) even though he was performing his job in a satisfactory manner. Id. If this case is made, the defendant must proffer a legitimate, nondiscriminatory reason for the adverse employment action. Id. The burden then falls on the plaintiff to show that the proffered reason is pretextual. Id.
This standard is further refined where, as here, the defendant terminates one employee and then claims that the termination was essentially a reduction-in-force ("RIF"). (Def's Mem. In Supp. of Summ. J. at 9 (Kemerly's "job itself has been eliminated").) The Seventh Circuit has dubbed such terminations "mini-RIFs." Michas v. Health Cost Controls of III., 209 F.3d 687 (7th Cir. 2000); Bellaver v. Quanex Corp., 200 F.3d 485 (7th Cir. 2000). The McDonnell Douglas standard is applied differently in mini-RIF cases:
In a mini-RIF, a single employee is discharged and his position is not filled. However, the employee's responsibilities are assumed by other members of the corporate workforce. Because of the fear that employers might misuse the RIF description to recharacterize ordinary terminations as reductions in force when they terminate an individual with a unique job, we have dispensed with the requirement that the plaintiff show "similarly situated" employees who were treated more favorably. Instead, because the fired employee's duties are absorbed by other workers, . . . we only require that a plaintiff demonstrate that his duties were absorbed by employees who were not members of the protected class.Michas, 209 F.3d at 693 (internal citations omitted) (emphasis added).
As Kemerly urges, the mini-RIF analysis is applicable here because only Kemerly was discharged and his position was not filled. (Kemerly Dep. at 55; Def's Answer to First Set of Interrogs., No. 5; Def's Answer to Second Set of Interrogs., No. 12.) Moreover, BCS admits that other employees are now performing Kemerly's duties. (Def.'s Mem. In Supp. of Summ. J. at 9.) Accordingly, Kemerly is relieved of the responsibility of showing that "only he, and not similarly situated employees who did not [receive FMLA leave]" suffered an adverse employment action, Stone, 281 F.3d at 644, but now he must go on to show that "his duties were absorbed by employees who were not members of the protected class." Michas, 209 F.3d at 693 (emphasis added).
BCS seeks to avoid application of the mini-RIF analysis by stressing its "good faith" in eliminating Kemerly's position. (Def.'s Mem. In Supp. of Mot. for Partial Summ. J. at 9.) However, BCS's alleged "good faith" is irrelevant, at least on the question of whether the mini-RIF analysis applies to the prima facie case.
Therefore, after applying the mini-RIF adjustment to Stone's formula for a prima facie case of retaliation, the following standard emerges: Kemerly must show that (1) after receiving FMLA leave; (2) he was subjected to an adverse employment action; (3) even though he was performing his job satisfactorily; and (4) his duties were absorbed by employees who did not engage in the protected activity.
However, even reconfigured, Kemerly fails to meet his burden, as he makes no attempt to establish the fourth element. Indeed, a careful review of Kemerly's brief and the record reveals no mention of which employees are now performing Kemerly's duties, and more importantly, whether those employees had ever requested or received FMLA leave.
Kemerly attempts to hide this deficiency, and thus misstates the mini-RIF doctrine by cropping some important language from his brief. More to the point, Kemerly cites Bellaver v. Quanex Corp., 200 F.3d 485 (7th Cir. 2000), for the proposition that he "need only show that the duties of sales were apportioned [among] existing employees, rather than showing he was replaced." (Pl.'s Resp. at 16.) However, Bellaver's actual holding is that "the inference of discrimination arises in single-discharge cases, sometimes called `mini-RIFs,' where the terminated employee's duties are absorbed by other employees not in the protected class." Bellaver, 200 F.3d at 495 (emphasis added).
It is well established that a party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion. E.g., Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). While it is the Court's responsibility to determine if genuine issues of material fact exist, "[t]he parties . . . bear a concomitant burden to identify the evidence that will facilitate this assessment." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994); cf. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs"). Kemerly fails to point to any evidence establishing that his duties were absorbed by employees who did not engage in the protected activity. Thus, he fails to make a prima facie case under the indirect method of proof, and this is fatal on summary judgment. Franzoni v. Hartmarx Corp., 300 F.3d 767, 772 (7th Cir. 2002). 3. Kemerly Cannot Show Pretext Either
Even assuming arguendo that Kemerly does make out a prima facie case of retaliation, he cannot show, as discussed more fully supra, that BCS's proffered reason for his termination was pretextual. Although Kemerly catalogs several facts which he believes show pretext, the only fact truly worth considering at this juncture is the alleged suspicious timing of his termination. However, suspicious timing, without more, is insufficient to show pretext. Stone, 281 F.3d at 644; Bilow, 277 F.3d at 895; Contreras, 237 F.3d at 765; Sauzek, 202 F.3d at 918. Moreover, the whole notion that his termination was suspiciously timed loses some of its force when placed in an overall temporal context. More particularly, Whicker had expressed dissatisfaction with the lack of sales for the Bluffton workshop well before he terminated Kemerly, a situation that failed to improve. Accordingly, even if it could be said that some inference of retaliation arises from the alleged suspicious timing, it is effectively neutralized by the fact that the timing was actually not very suspicious at all. Thus, Kemerly's claim fails not only at the prima facie case, but he has also failed to meet his burden under McDonnell Douglas at the pretext stage as well.
The Seventh Circuit recently noted that the evidence required to show pretext under the indirect method of proof often "bears an eerie similarity" to the type of circumstantial evidence used under the direct method. Volovsek, 2003 WL 22146393, at *8; see also Riley, 244 F. Supp.2d at 943.
Because Kemerly has no direct evidence of FMLA retaliation, cannot produce enough circumstantial evidence to create a triable issue, has failed to make out even a prima facie retaliation case under McDonnell Douglas, and has failed to show that BCS's proffered reason was pretextual, BCS is entitled to summary judgment on Kemerly's FMLA claim. See Peele v. Country Mut. Ins. Co., 288 F.3d 319, 331-32 (7th Cir. 2002); DeLuca v. Winer Indus., Inc., 53 F.3d 793, 798-99 (7th Cir. 1995).
B. Kemerly Also Fails To Create a Triable Issue Under ERISA § 510
Kemerly also contends that BCS terminated him to interfere with his exercise of statutorily protected employee benefits. (Compl. ¶ 1.) Section 510 of ERISA provides that "[i]t shall be unlawful for any person to discharge . . . a participant . . . for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. . . ." 29 U.S.C. § 1140. In short, ERISA § 510 "prohibits employers from frustrating their employees' attainment or enjoyment of benefit rights." Feldman v. Am. Mem'l Life Ins. Co., 196 F.3d 783, 792 (7th Cir. 1999).To recover under ERISA § 510, a plaintiff must show that the employer terminated him with the specific intent to interfere with his ERISA rights. Salus v. GTE Directories Serv. Corp., 104 F.3d 131, 135 (7th Cir. 1997). It is not enough to show that the loss of an employee's ERISA benefits was a "mere consequence" of some action taken by the employer, rather, it must be shown that such loss was the "motivating factor" behind the action. Id. at 136. The required intent may be shown either directly or through the indirect McDonnell Douglas method. Id. at 135. Kemerly is again unsuccessful at both.
Under the direct method, Kemerly offers a reprise of essentially the same evidence he presented for his claim of FMLA retaliation. (Pl.'s Resp. at 18-19.) However, this evidence is no better at averting summary judgment even when re-packaged for an ERISA § 510 claim.
Under the indirect method, the elements of the prima facie case under ERISA § 510 are that the plaintiff (1) belongs to the protected class; (2) was qualified for the job; and (3) was discharged under circumstances that provide some basis for believing that the prohibited intent to retaliate was present. Salus, 104 F.3d at 135; Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir. 1996). To satisfy the third element of this test, the plaintiff must produce enough evidence to allow a rational inference of retaliation or interference. See Little v. Cox's Supermarkets, 71 F.3d 637, 642 (7th Cir. 1995). Once the plaintiff establishes the prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for its action. Salus, 104 F.3d at 135. The burden then shifts back to the plaintiff to show this reason to be pretextual. Id.
BCS does not appear to challenge the first two elements. ( See Def.'s Mem. in Supp. of Mot. for Summ. J. at 12-14; Def.'s Reply at 8-9.)
As with his FMLA claim, Kemerly's only probative evidence is the proximity in time between the adverse employment action and his entering the protected group ( see Pl.'s Resp. at 18-20), but this alone is insufficient to create an inference of retaliation. Stone, 281 F.3d at 644 ("mere temporal proximity between the [protected activity] and the [allegedly retaliatory action] will rarely be sufficient . . . to create a triable issue"); Bilow, 277 F.3d at 895; Contreras, 237 F.3d at 765; Sauzek, 202 F.3d at 918. Stated more specifically, Kemerly has failed to show, beyond mere speculation, that Whicker was motivated to terminate him because of an anticipated health insurance claim. Consequently, all Kemerly has shown is that a possible loss of insurance was a "mere consequence" of Whicker's action, and this is insufficient as a matter of law. Salus, 104 F.3d at 136.
Because Kemerly fails to make a prima facie case under the indirect method of proof, BCS is entitled to summary judgment on this claim as well. Moreover, as with his FMLA retaliation claim, even if Kemerly made out a prima facie case, he has failed to rebut BCS's proffered reason for his termination.
C. Kemerly Has No Disability Discrimination Claim
Kemerly's complaint can also be read to allege that BCS illegally terminated Kemerly because of his disability. (Compl. ¶ 1 (Kemerly "was discriminated against because of his disability . . . including [BCS's] . . . discriminating against [Kemerly] because of his record of impairment, perceiving and regarding [Kemerly] as being disabled, and treating [Kemerly] worse than non-disabled individuals. . . .").) This claim falls under 42 U.S.C. § 12112(a), which provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees. . . ."Kemerly again relies on both the direct and indirect methods of proof. See Hoffman, 256 F.3d at 572. However, Kemerly's ADA claim adds nothing new to the Troupe analysis beyond what has already been discussed, leaving suspicious timing as the only probative direct evidence surrounding his termination; however, suspicious timing alone is not enough to forestall summary judgment. Stone, 281 F.3d at 644; Bilow, 277 F.3d at 895; Contreras, 237 F.3d at 765; Sauzek, 202 F.3d at 918. Thus, Kemerly fails to create a triable issue of disability discrimination under the direct method.
Under the indirect method, an ADA plaintiff makes out a prima facie case by showing that: (1) he is disabled within the meaning of the ADA; (2) he was meeting the legitimate expectations of his employer; (3) he suffered an adverse employment action; and (4) similarly situated employees received more favorable treatment. Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001); Amadio v. Ford Motor Co., 238 F.3d 919, 924 (7th Cir. 2001). Once the plaintiff establishes the prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for its action. Amadio, 238 F.3d at 924. The burden then shifts back to the plaintiff to show this reason to be pretextual. Id.
As discussed supra, the mini-RIF doctrine relieves Kemerly from establishing that similarly situated employees received more favorable treatment, but it imposes the additional requirement that he show that his job duties were absorbed by employees who are not members of the protected class (i.e., are not disabled). Michas, 209 F.3d at 693; Bellaver, 200 F.3d at 495. Kemerly again makes no effort to identify the employees who absorbed his job duties, nor does he show that those employees are not disabled.
It is unlikely that Kemerly could make such a showing even if he tried. Since BCS's primary mission is the creation of employment opportunities for disabled workers (Pl.'s Resp., Ex. D), it is almost certain that Kemerly's duties were absorbed by disabled employees.
Thus, Kemerly fails to make the prima facie case necessary to survive summary judgment. Moreover, as with his FMLA retaliation and ERISA § 510 claims, even if Kemerly made out a prima facie case, he has failed to rebut BCS's proffered legitimate, non-discriminatory and non-retaliatory reason for his termination.
D. BCS Did Not Retaliate Against Kemerly For Exercising His ADA Rights
Kemerly's complaint does not directly allege that he was terminated in retaliation for exercising ADA rights. However, his brief opposing the instant motion makes multiple references to an "ADA retaliation claim." ( E.g., Pl.'s Resp. at 1, 11.) As BCS's briefs purport to attack "all of plaintiff s claims under the ADA" (Def.'s Mem. In Supp. of Mot. for Partial Summ. J. at 14), the Court will address this claim to complete the record.
To make a prima facie case of ADA retaliation, Kemerly must show that "after filing the charge [of disability discrimination], only he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner." Stone, 281 F.3d at 644. Kemerly makes no showing that he filed an ADA charge prior to his termination or made any assertion whatsoever under the ADA, and therefore he cannot possibly show that BCS retaliated against him for doing so. See id. at 642; Durkin v. City of Chicago, 341 F.3d 606, 614-15 (7th Cir. 2003) ("An employer cannot retaliate if there is nothing for it to retaliate against"); Maarouf, 210 F.3d at 755 (holding that retaliation was not proven where plaintiff failed to show that decisionmaker was aware of complaint). Thus, to the extent that Kemerly's complaint is read to allege an ADA retaliation claim, that claim fails as a matter of law.
E. BCS Did Not Fail To Accommodate Kemerly's Disability
Kemerly also claims that BCS failed to make reasonable accommodations for his disability and failed to engage in the "interactive process" for determining what accommodations were necessary. (Compl. ¶ 1.) This claim, based on 42 U.S.C. § 12112(b)(5)(A), does not follow the McDonnell Douglas burden-shifting formula. Pond v. Michelin North America, Inc., 183 F.3d 592, 597 n. 5 (7th Cir. 1999). Rather, once an employer knows of an employee's disability and the employee has requested reasonable accommodations, the parties must engage in an interactive process to determine what precise accommodations are necessary. Ross v. Ind. State Teacher's Ass'n Ins. Trust, 159 F.3d 1001, 1013-14 (7th Cir. 1998); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996). Liability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown in the process. Ross, 159 F.3d at 1013-14; Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001). Consequently, an employer cannot be liable for failing to make a reasonable accommodation if the employee never requested one. Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1092 (7th Cir. 2000); cf. Beck, 75 F.3d at 1134-36.
"[Prohibited discrimination includes] not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. . . ." 42 U.S.C. § 12112(b)(5)(A).
However, "[t]he interactive process is not an end in itself." Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997). It is not sufficient for a plaintiff to show that the employer failed to engage in the interactive process; he must also show that the deficiency in the interactive process resulted in a failure to reasonably accommodate his disability. Rehling v. City of Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000).
Kemerly presents no evidence that he ever requested a reasonable accommodation. To the contrary, Kemerly assured BCS he could meet the physical demands of his job (Kemerly Dep. at 17-18) and passed a pre-hire physical examination ( Id. at 25-26). In short, BCS had no reason to engage in the interactive process or to grant Kemerly a reasonable accommodation. Thus, Kemerly's ADA reasonable accommodation claim also fails as a matter of law.
Moreover, Kemerly does not suggest what possible accommodation could have been granted, given that in April, 1999, he was completely unable to work for the next four (4) months. See Byrne v. Avon Prod., Inc., 328 F.3d 379, 381 (7th Cir. 2003) ("The sort of accommodation contemplated by the [ADA] is one that will allow the person to perform the essential functions of the employment position. Not working is not a means to perform the job's essential functions"), cert. denied, ___ S.Ct. ___, 72 U.S.L.W. 3130 (U.S. October 6, 2003); cf. Rauen v. U.S. Tobacco Mfg. Ltd. P'ship, 319 F.3d 891, 896 (7th Cir. 2003) ("working at home is rarely a reasonable accommodation . . . because most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation"). It is certainly not reasonable to conclude that a sales representative, whose very job is to personally call upon prospective customers, could productively perform that job while sitting at home. See, e.g., Vande Zande v. Wis., 44 F.3d 538, 545 (7th Cir. 1995) (holding that the ADA does not require employers "to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced").
V. CONCLUSION
At most, Kemerly shows that his termination may have been unfair. However, as the Seventh Circuit has repeatedly said, this Court is not to serve as a "super personnel department," but rather is limited to addressing unlawfully discriminatory or retaliatory actions. E.g., Appelbaum v. Milwuakee Metro. Sewerage Dist., 340 F.3d 573, 579 (7th Cir. 2003). Because Kemerly has failed to raise a triable issue on such matters, BCS's Motion for Partial Summary Judgment is GRANTED.