Opinion
Cause No. TH 98-303 C-M/H
August 9, 2000
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This matter comes before the Court on the motions of plaintiff, Mark Mack ("Mack"), and defendant, Great Dane Trailer ("Great Dane"), each seeking judgment in their favor as a matter of law on all of the claims presented in the complaint filed by Mack on December 23, 1998. Mack brought this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Mack contends that he suffered discrimination when Great Dane failed to provide a reasonable accommodation for his right peroneal neuropathy and eventually terminated his employment as an assistant trailer builder because of his condition. Compl. ¶¶ 17, 20, 21, 24. In addition, Mack asserts several state law claims in which he contends that Great Dane unlawfully terminated his employment in retaliation for filing a workers compensation claim and that he suffered emotional distress as a result of Great Dane's conduct. Id. ¶¶ 31-33, 36-38. Having fully considered the parties' arguments as presented in their briefs, the Court hereby: (1) DENIES Mack's motion for summary judgment, and (2) GRANTS IN PART and DENIES IN PART Great Dane's motion for summary judgment.
FACTUAL PROCEDURAL HISTORY
Mack began working as an assistant trailer builder for Great Dane at the Brazil, Indiana plant on September 3, 1997. Def.'s Ex. D. In this position, Mack performed a wide variety of tasks such as installing tarps in refrigerator units, putting in scuffboards, checking the lights on the back of trailers, sawing parts off of the trailers, operating an air chisel to remove foam, putting stickers on the sides of trailers and putting chutes up on refrigerated trailers. Mack Dep. at 33, 86-87. Several of these jobs required kneeling, squatting and crawling.
On September 29, 1997, Mack was instructed to install scuffboards. Id. at 36. This assignment required him to work for long periods of time on his knees. Pl.'s Ex. 3, 10/6/97 Report. At the end of the night, Mack began to notice some soreness in his right hip and buttock and down his leg to the calf. Id. Shortly thereafter, he developed an acute right foot drop. Id. Mack reported his injury to Great Dane the next day and was sent home from work. At Great Dane's instruction, Mack then went to see his own doctor who told him that the injury was work-related. Mack Dep. at 73. Mack began receiving temporary total disability workers compensation benefits on October 24, 1997. Id.; Def.'s Ex. DD.
Once it was determined that Mack's injury was work-related, Great Dane sent Mack to Dr. Daria Schooler ("Schooler") for treatment. Schooler examined Mack for the first time on October 6, 1997. Pl.'s Ex. 3, 10/6/97 Report. From this examination, she diagnosed Mack as suffering from acute right peroneal neuropathy at the knee due to prolonged kneeling. Id. Schooler ordered Mack not to work until his follow-up examination on October 24, 1997. Id. She requested that an ankle-foot orthosis with a hinge be created for Mack to assist him in resuming a normal gait pattern. Id. She also ordered that Mack attend physical therapy sessions to begin the rehabilitation process. Id.
On October 24, 1997, Schooler again examined Mack and determined that Mack could return to work but would be limited to sedentary tasks which could include some walking but no kneeling or "heavy work." Pl.'s Ex. 3, 10/24/97 Report. Schooler indicated that Mack would only be able to do this part-time since he needed to continue going to therapy. Id. She also noted that Mack would need assistance with transportation since he was still unable to drive. Id.
In the eight reports which Schooler subsequently issued to Great Dane, she advised Great Dane that Mack could return to work with restrictions. Pl.'s Ex. 3. In the report issued on February 20, 1998, Schooler indicated that Mack would need a work boot which would accommodate his ankle-foot orthosis. Pl.'s Ex. 3, 2/20/98 Report. On April 3, 1998, Schooler set forth a graduated plan under which Mack could be returned to work on a full-time basis. Pl.'s Ex. 3, 4/3/98 Report. There, Mack was to work four-hour days for two weeks, then six-hour days for two weeks and finally eight-hour days after that period. Id. While he could not do any squatting or kneeling, he was no longer restricted from "heavy work" and did not require transportation. Id. Mack was to work in an area that would not require him to wear steel-toed workboots since he might need to wear his ankle-foot orthosis. Id. Despite Schooler's recommendations, Great Dane never contacted Mack about returning to work. Nor did the company contact Schooler to discuss how her recommendations could be implemented.
Great Dane employees who work in the plant are required to wear steel-toed workboots at all times for safety purposes. Royce Dep. 168-170.
On November 2, 1998, Schooler prepared a report which stated that Mack "may have plateaued in regards to the recovery of his peroneal nerve palsy" and that "this may be as good as he gets." Pl.'s Ex. 3, 11/2/98 Report. She then stated: "[Mack] could potentially return to work if he had a permanent work restriction of no lifting and if a custom work boot could be manufactured that would give him good arch support and include an ankle foot orthosis to counteract the weight of the shoe. His employer can look into that possibility for him. It might need to be made special for him at the shoe or boot manufacturer." Id. Schooler's report was received and reviewed by James Royce ("Royce"), the plant safety manager, on November 12, 1998. Royce Dep. at 47. Great Dane terminated Mack's employment on that same day. Pl.'s Ex. 2. However, Mack did not learn that Great Dane had taken any action against him until November 24, 1998 when he received a letter titled "Notice of Right to Continue Group Health Coverage." Pl.'s Ex. 8.
During her deposition, Schooler was asked why her November 2, 1998 report describes a lifting restriction instead of the kneeling and squatting restrictions that had been the focus of Mack's limitations in all of her previous reports. Schooler explained that the statement was not as "consistent" with her other reports, that it did not reflect her conclusions about his limitations long-term and that he was not restricted in lifting from waist height. Schooler Dep. at 38-41.
On November 30, 1998, Mack and his wife met with Royce and Michael Steed ("Steed"), the human resources manager. During the meeting, Steed and Royce told Mack that he had been terminated pursuant to a company policy under which an employee who is absent for more than one year is terminated. In addition, Mack asserts that Royce and Steed also advised him that Great Dane would not purchase a customized workboot with an ankle-foot orthosis for him and that he could not return to work even if he purchased the special workboot with his own money. Mack Dep. at 67.
That same day, Schooler issued her final report regarding Mack. The report stated as follows:
Because Mark [Mack] still has dorsiflexion weakness rated at 3/5 strength for both the foot and toe, he has a permanent impairment of the whole person of 13% based on "Guides to the Evaluation of Permanent Impairment, Fourth Edition," published by the American Medical Association. Mark is released at this time with permanent work restrictions of no kneeling or squatting and he must be provided with an ankle foot orthosis in his steel toed work boot on the right side. He must continue with his home strengthening program indefinitely as well. He may regain further strength in the right lower extremity, but this could take a very long time and one would not expect him to recover any more than he has since July of 1998 since that is when he plateaued in his current level of strength at 3/5 motor power on manual muscle testing. Mark will have no other restrictions than those mentioned above for this injury. His maximum medical improvement has resulted as of today's date November 30, 1998.
Pl.'s Ex. 3, 11/30/98 Report.
Schooler provided a final opinion to Great Dane in a letter to Carol Unversaw, the company's third party administrator for worker's compensation claims, dated March 26, 1999. With respect to the extent of any permanent restrictions, the letter stated:
In regards to the question whether Mark Mack should or should not do any squatting, obviously he could not stay in a stooped or kneeling position or squatting position for any prolonged period of time. If Mark were to simply stoop down to pick something up off the ground certainly he could move through a squatting position for a few seconds without having this create any additional pressure on his peroneal nerve.
My intent in my letter from November 30, 1998 was to express that Mark is not to do any prolonged stooping or squatting of any kind. Therefore, he would essentially be precluded from working in these positions or any position of prolonged kneeling.
Please bear in mind that these precautions are taken to prevent any progressive nerve damage that would lead to a total irreversible foot drop in Mark's right leg. That would be the reason to avoid any prolonged kneeling, stooping or squatting of any kind. It is unrealistic to expect one not to be able to make those maneuvers in day to day living. However, we want to avoid him spending hours at a time at a job in those positions.
Pl.'s Ex. 9.
Mack filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on December 7, 1998. The EEOC issued a right-to-sue letter on December 15, 1998 which stated: "Less than 180 days have passed since the filing of this charge, but I have determined that it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of the charge." Def.'s Ex. C. Mack filed this action on December 23, 1998.
At present, this matter is before the Court on the motions for summary judgment filed by both parties on November 15, 1999. Also before the Court is a motion for partial summary judgment filed by Mack on November 10, 1999 which pertains to the issue of whether Great Dane can limit its liability for damages incurred after July 13, 1999 when it discovered during Mack's deposition that he had lied on his employment application regarding felony convictions. The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 12117, 2000e-5(g) and 28 U.S.C. § 1331. The Court has jurisdiction over the state retaliatory discharge and intentional infliction of emotional distress claims pursuant to 28 U.S.C. § 1367, authorizing supplemental jurisdiction over state claims arising out of the same event or connected series of events. Having reviewed the factual background, the Court now turns to a brief overview of the standards governing its decision.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is granted "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). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id.
The moving party has the initial burden to show the absence of genuine issues of material fact. See Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann's Inc., Bakeries, 121 F.3d 281, 286 (7th Cir. 1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a summary judgment motion, a court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable factfinder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23; Shields Enters., 975 F.2d at 1294.
The summary judgment standard is applied with added rigor in employment discrimination cases because of the crucial role played by motive, intent and credibility in resolving such cases. Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). However, even when discriminatory intent is at issue, the evidence must not only address the issue of intent, but also relate to the specific employment decision in question. Cowan v. Glenbrook Security Serv., Inc., 123 F.3d 438, 443 (7th Cir. 1997). Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of Sch. Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
III. DISCUSSION A. DISABILITY DISCRIMINATION
Both parties have moved for summary judgment on the issues of whether Mack is a "qualified individual with a disability" entitled to protection under the ADA. In addition, Great Dane claims that it is entitled to judgment as a matter of law because the EEOC's right-to-sue letter is invalid and cannot serve as the basis for this suit as it was issued too early. The Court will address each of these arguments in turn.
Both parties have also moved for summary judgment on the issue of whether Great Dane terminated Mack because of his condition. However, because the Court concludes that a genuine issue exists for trial on whether Mack is a qualified individual with a disability it need not address this question.
1. Qualified Individual with a Disability
The ADA prohibits discrimination against, and requires an employer to make reasonable accommodations for the known limitations of, an otherwise qualified employee with a disability. 42 U.S.C. § 12112(a), (b). The statute provides that no covered entity "shall discriminate 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, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). The ADA proscribes discrimination against only "qualified individual[s] with a disability." Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996). Therefore, for an individual to bring a claim under the statute, he must show: (1) there is a disability, and (2) he is a "qualified individual."
To meet the first element, an employee may establish that he is disabled under the ADA by showing: (1) a physical or mental impairment that substantially limits one or more of the major life activities of a such individual, (2) a record of such impairment, or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2); Duda v. Franklin Park Pub. Sch. Dist. 84, 133 F.3d 1054, 1058 (7th Cir. 1998). The second element involves establishing that the employee is a "qualified individual" with a disability. Duda, 133 F.3d at 1058. An employee meets this standard by proving that he is able to perform the essential functions of the position that he holds or desires, with or without a reasonable accommodation. Gile, 95 F.3d at 492.
a. Disabled under the ADA
Both parties in this case have moved for summary judgment on the question of whether Mack is actually disabled under the meaning of the statute. Further, Mack contends that Great Dane regarded him as disabled and that Great Dane kept a record of his impairment. As an initial matter, the Court concludes that a genuine issue exists on the question of whether Great Dane regarded Mack as disabled. However, for purposes of narrowing the issues for trial, the Court will further address the questions of whether Mack is actually disabled as a matter of law and whether Great Dane maintained a record of such impairment.
i. "Regarded as" disabled
The regulations define "regarded as having such an impairment" to mean that the employee: (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such a limitation, (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment, or (3) has none of the physical or mental impairments defined in the regulations but is treated by a covered entity as having a substantially limiting impairment. 29 C.F.R. § 1630.2(1). In applying this definition, the Supreme Court has noted that in order to make out a claim under the "regarded as" prong, "it is necessary that a covered entity entertain misperceptions about the individual." Sutton v. United Air Lines, Inc., 119 S.Ct. 2139, 2150 (1999). These misperceptions may surface in believing "either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment, when, in fact, the impairment is not so limiting." Id.
In this case, it is undisputed that Mack's right peroneal neuropathy is a physical impairment. However, Mack contends that Great Dane refused to meet or communicate with Schooler to actually determine those physical tasks that he could and could not perform. Thus, his claim is most appropriately classified under the first type of misperception — that Great Dane regarded his impairment as substantially more limiting than it truly is. Mack's evidence of this mistaken belief is the deposition testimony of Steed and Royce in which both individuals make several references to the limitations that Mack's inability to lift and squat would pose on his ability to work as an assistant trailer builder.
Upon review of testimony submitted, the Court concludes that this evidence is insufficient to establish as a matter of law that Great Dane regarded him as disabled. In reaching this conclusion, the Court notes that there is ample evidence in the record that Great Dane was aware of Mack's condition. Specifically, the Court finds that Royce testified during his deposition that Great Dane had reached a "consensus decision" that Mack could not return to work, despite Schooler's recommendations, because the company could not accommodate the restrictions that Schooler had imposed. Royce Dep. at 97. In describing the meeting with Mack and his wife, Royce stated that he explained to Mack that Great Dane was not able to reinstate Mack's employment because "we could not accommodate his restrictions." Id. at 144. Similarly, Steed testified that he told Mack with regards to reinstatement: "[T]hat what we knew of his restrictions, his inability to lift or to squat, would have been something that would have to be reviewed upon — if that were to change we certainly would reconsider him for rehire." Then, when asked whether anyone had investigated Schooler's report that Mack could return to work and would not need transportation, Royce stated no because "the restrictions pretty much were unchanged." Id. at 160. Finally, when asked whether anyone from Great Dane contacted Schooler after she stated that Mack could return to work with a regular workboot so long as it contained an ankle-foot orthosis, Royce stated: "No, because again as I stated previously, the kneeling and squatting would still be a major hurdle." Id. at 176. Therefore, it is reasonable to infer that Great Dane regarded Mack as being impaired by his right peroneal neuropathy.
However, Mack has failed to present evidence which supports his contention that Great Dane perceived him as having an impairment that he did not in fact possess. Neither party disputes that Great Dane made no effort to contact Schooler or Mack to determine those tasks which he was capable of performing. Nevertheless, Schooler's reports consistently stated that Mack was permanently restricted from performing work which would require any prolonged squatting or kneeling. See Pl.'s Ex. 3, 11/30/98 Report, 4/3/98 Report, 1/9/98 Report. And, at least one report indicated that Mack was not to perform any lifting. See Pl.'s Ex. 3, 11/2/98 Report. Given the wide variety of tasks required of an assistant trailer builder, a finder of fact could therefore reasonably conclude that Great Dane did not misperceive the limitations which Mack's condition would impose on his ability to return to work. Neither party has presented enough evidence to preclude a genuine issue for trial.
ii. Actual disability
To show that an individual has an actual disability under the ADA, he must demonstrate that he: (1) has an "impairment" that (2) "substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(a). An impairment is "any physiological disorder, cosmetic disfigurement, or anatomical loss affecting one of the body's systems, or any mental disorder." 29 C.F.R. § 1630.2(h); Harrison v. Rice Lakes Weighing Sys., Inc., 122 F.3d 456, 459 (7th Cir. 1997). However, not all impairments are disabilities for purposes of the ADA. See Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1061 (7th Cir. 2000). Mack must show that his right peroneal neuropathy substantially limits a major life activity. See id. To be "substantially limited" means that "the individual is either unable to perform, or significantly restricted as to the condition, manner or duration under which the individual can perform, a major life activity as compared to an average person in the general population." Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998).
Here, Mack asserts that his right peroneal neuropathy substantially limits his ability to perform the major life activities of sitting, walking, standing and working. It is undisputed that these functions constitute major life activities under the regulations and caselaw interpreting the ADA. Thus, the dispositive question on this issue is whether Mack's condition substantially limits these major life activities. The Court concludes as a matter of law that they do not.
Mack also contends that he is substantially limited in the major life activities of squatting, kneeling and crawling. Mack presents no persuasive authority for the proposition that these functions constitute major life activities in and of themselves. To the extent that Mack presents these activities as components of his job, the Court will address these activities in its discussion of whether Mack is substantially limited in the major life activity of working.
With respect to sitting, Mack argues only that his impairment prevents him from sitting in such a fashion that his body weight puts undue pressure on his right peroneal nerve. In reality, this prohibits him from sitting with his legs crossed and from sitting in an "Indian-style" formation. But, Mack fails to present any evidence which demonstrates that the manner in which he sits poses any limits on either his personal or work life. As for standing and walking, Mack maintains that his condition causes his foot to drop which forces him to drag his foot and often times trip. However, during his deposition Mack testified that he could work on his feet for an eight hour shift without a problem and that his foot would become tired after twelve hours. Because it is difficult to imagine that an average person would not experience some sort of difficulty after being on their feet for twelve hours, Mack has not shown that his impairment imposes a substantial limitation on his ability to walk or stand.
Finally, with respect to working, Mack asserts that his inability to squat, kneel and crawl substantially limits his ability to work. In the context of working, the Seventh Circuit has held that substantially limits means that the employee was "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." Id. Stated differently, "an inability to perform a particular job for a particular employer" is insufficient to establish a substantial limitation. Sinkler v. Midwest Property Management Ltd. Partnership, 209 F.3d 678, 685 (7th Cir. 2000) (quoting Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir. 1992)). Instead, "the impairment must substantially limit employment generally." Id. In this case, Mack relies primarily on a report from Constance Brown ("Brown"), a certified rehabilitation counselor. In her report, Brown states that Mack is qualified only for unskilled and semi-skilled jobs. She then opines that Mack's inability to squat, kneel or crawl will preclude him from working in 219,377 of the 1,010,960 unskilled jobs which are available in the state of Indiana. The Court finds this evidence unpersuasive for two reasons. First, contrary to Brown's assertion that "[the loss of 219,377 jobs] is a significant loss in [Mack's] available labor market," Mack's restrictions from squatting, kneeling and crawling only eliminate his application to 22% of the available jobs in the unskilled labor market. Second, since Great Dane terminated his employment, Mack has found work with three different employers and has left two of these companies on his own free-will and without complications arising from his impairment. Mack is not substantially limited in the major life activity of working. For these reasons, Great Dane is entitled to judgment as a matter of law on the issue of whether Mack is actually disabled.
iii. Record of impairment
Section 12102(2)(B) extends the coverage of the ADA to individuals who "ha[ve] a history of, or ha[ve] been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k). This includes people who have recovered from previously disabling conditions but who remain vulnerable to the fears and stereotypes of their employers. Davidson, 133 F.3d at 509. This provision also extends to people who may require some kind of accommodation from their employer, notwithstanding their inability to demonstrate a present impairment that is substantial enough to qualify as disabling under the ADA. Id. However, the record of impairment must still contain a history of an impairment that at one time substantially limited a major life activity. Roth v. Lutheran General Hosp., 57 F.3d 1446, 1457 (7th Cir. 1995).
Mack asserts that Great Dane received and maintained a file of reports and recommendations from Schooler which described his physical impairment and restrictions and that this record served as the basis for his termination. Although Schooler's diagnosis and follow-up documentation tends to prove that Mack had a record of impairment, this evidence is insufficient to create a record of a disability because as discussed previously Mack has failed to demonstrate how his condition ever substantially limited a major life activity. Examining the evidence in a light most favorable to Mack shows that other than the first month following his injury all of Schooler's reports recommended that Mack could return to work with certain restrictions. Consequently, Mack has failed to raise a genuine issue regarding whether he has a record of impairment limiting a major life activity.
b. Qualified individual
In addition to the question of whether Mack is disabled under the ADA, the Court finds that a second issue exists for trial over whether Mack is a qualified individual under the meaning of the statute. A two step process is involved in determining whether an employee meets that definition. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996). First, the Court evaluates whether the person satisfies the prerequisites for the position, such as education, experience and licensing. Id. Second, the Court must determine if the person can perform the essential functions of the job with or without reasonable accommodation. Id. These determinations are both made at the time the employment decision was made. Id. Once satisfied that an employee is a qualified individual with a disability, the Court then turns to the issue of whether the employer terminated him because of his disability.
Here, both parties agree that Mack satisfied the prerequisites for the assistant trailer builder position. But, an issue exists as to whether he can perform the essential functions of the job namely because it is unclear what functions are essential to the position. Specifically, the parties dispute whether squatting, kneeling and crawling are necessary skills for building a trailer. To demonstrate that they are not, Mack offers his own deposition testimony and portions of his employment file which state that he was doing a "great job" in the position. He also designates Schooler's medical reports and deposition testimony which state that he could return to work so long as he did not perform tasks which would require prolonged periods of kneeling or squatting. Finally, he offers Brown's report which states that he could perform several of the jobs within the classification of trailer builder helper as defined in the Department of Labor's "Dictionary of Occupational Titles." To demonstrate that squatting, kneeling and crawling are essential to the trailer builder position, Great Dane submits portions of Mack's deposition in which he testifies as to the wide variety of tasks that he performed while working in this job, many of which included working in a lowered position.
Neither party offers sufficient evidence to warrant judgment as a matter of law. The facts presented do not concretely define the functions which are essential in building a trailer in that they wholly fail to resolve several important questions. First, although Mack's deposition testimony shows that this job involves many assignments, what is the predominant function of an assistant trailer builder in the larger scheme of Great Dane's operations? Second, how many assistant trailer building positions exist at Great Dane and is there enough work and enough labor for Mack to be assigned exclusively to overhead tasks? Lastly, what is the complete list of tasks that an assistant trailer builder might be asked to perform and how many of those jobs can Mack complete? Without documentation or testimony which presents the functional equivalent of a job description and/or a list of hiring criteria for this position, summary judgment is inappropriate.
2. Valid Right-To-Sue Letter
Even if Mack is entitled to protection under the ADA, Great Dane argues that it is entitled to summary judgment because the EEOC issued its right-to-sue letter too early. Specifically, Great Dane asserts that § 2000e-5(f)(1) of Title VII, which is the statutory provision authorizing the EEOC to issue right-to-sue notices, requires the EEOC to wait 180 days from the date a charge of discrimination is filed before it may authorize the claimant to pursue a private action. The statute states in relevant part:
If a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action . . . or entered into a conciliation agreement . . . the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. . .42 U.S.C. § 2000e-5(f)(1).
Citing the District of Columbia Circuit's opinion in Martini v. Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir. 1999), cert. denied, 120 S.Ct. 1155 (U.S. Feb. 10, 2000), Great Dane asserts that during this 180-day period the EEOC has an affirmative duty to investigate the claim. Great Dane then concludes that since here the EEOC issued a right-to-sue letter just four days after the charge was filed and before the agency investigated Mack's claim, the letter is invalid and cannot be used as the basis for this suit. In response, Mack counters that 29 C.F.R. § 1601.28(a)(2) permits the EEOC to issue a right-to-sue letter before 180 days have passed from the filing of a charge if it first determines that it will probably be unable to process the charge within the required period.
Title 29 C.F.R. § 1601.28(a)(2) provides that "when a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued . . . the Commission may issue such notice . . . at any time prior to the expiration of 180 days from the date of filing with the Commission; provided, that [one of several EEOC officials] has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect."
The Seventh Circuit has yet to decide whether the language of Title VII imposes a mandatory period of investigation on the EEOC. But, circuits addressing this question are split. Compare Sims v. Trus Joist MacMillan, 22 F.3d 1059 (11th Cir. 1994) (permitting suit based on early right to sue letter) and Bryant v. California Brewers Ass'n, 585 F.2d 421 (9th Cir. 1978), vacated and remanded on other grounds, 444 U.S. 598 (1980), with Martini, 178 F.3d at 1336 (holding that Title VII imposes a mandatory 180-day waiting period and that early right-to-sue letter violates the statute) and Pearce v. Barry Sable Diamonds, 912 F. Supp. 149 (E.D. Pa. 1996). Thus far, the district courts in this circuit have consistently held that early right-to-sue letters are valid. See Berry v. Delta Air Lines, 75 F. Supp.2d 890 (N.D. Ill. 1999); Baker v. Gardner, Carton Douglas, 1997 WL 781712 (N.D. Ill. Dec. 12, 1997); Parker v. Noble Romans, 1996 WL 453572 (S.D. Ind. June 26, 1996); Rolark v. University of Chicago Hosp., 688 F. Supp. 401 (N.D. Ill. 1988). Generally speaking, the rationale underlying these decisions has been that the plain meaning of the language of § 2000e-5(f)(1) provides no indication that Congress intended to create a mandatory waiting period.
These decisions notwithstanding, Great Dane asks this Court to diverge from the holdings of this circuit and follow the D.C. Circuit in Martini. In Martini, the plaintiff filed a sexual harassment and retaliation charge with the EEOC. 178 F.3d at 1339. Twenty-one days later, at her request, the EEOC issued a right-to-sue letter authorizing her to bring a private action in federal court. Id. In so doing, the EEOC acted pursuant to its own regulations which authorize a private suit at any time prior to the expiration of 180 days from the date of filing a discrimination charge provided that an EEOC official first determines that the agency will be unable to complete its administrative processing of the charge within the required period. Id. Before trial, the defendant moved to dismiss, arguing that the EEOC's early right-to-sue regulation, 29 C.F.R. § 1601.28(a)(2), violates the 180-day waiting period for private suits established by § 2000e-5(f)(1) of Title VII. Id. The district court denied the motion. Id.
On appeal, the D.C. Circuit reversed holding that the EEOC may issue a right-to-sue letter only after 180 days have passed from the date of filing. Id. at 1347. In reaching this conclusion, the Court did not rely on § 2000e-5(f)(1). Indeed, the Court agreed that § 2000e-5(f)(1) does not reveal the unambiguous expressed intent of Congress to create a mandatory waiting period. Instead, the Court turned to § 2000e-5(b) which the Court concluded imposes a "mandatory and unqualified" duty on the EEOC to investigate every charge which is filed. Id. at 1346. The Court then held that the EEOC regulation was invalid because if the EEOC were allowed to issue an early right-to-sue letter it would be relieved of its statutory duty to investigate every charge of discrimination that is filed with the agency. Id. at 1347.
Like several other courts in this circuit, the Court finds the reasoning of Martini unpersuasive. Whether the EEOC regulation is invalid is governed by the two-step analysis set forth by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). First, the Court must determine whether Congress has spoken directly on the issue at hand. Id. at 842-43. If the intent of Congress is clear, that is the end of the matter for the Court because the Court as well as the agency must give effect to the unambiguously expressed intent of Congress. Id. Second, if the statute is silent or ambiguous with respect to the issue, the Court must decide whether the agency interpretation is reasonable. Id. The agency's interpretation is entitled to substantial deference. Id. at 843.
In Martini, the D.C. Circuit concluded that the EEOC's early right-to-sue letter failed the first step of Chevron. Martini, 178 F.3d at 1342. Stated differently, the Court decided that the regulation was contrary to the unambiguously stated intent of Congress to impose a mandatory waiting period of 180 days before it could authorize a claimant to file suit. Id. This Court cannot agree. In looking at the language of Title VII, the Court agrees with Martini that the terms of § 2000e-5(f)(1) are ambiguous in that the statute only says that if the EEOC has not acted in 180 days it must issue a right-to-sue letter; it does not indicate whether the agency must wait 180 days before it can authorize a private suit. Contrary to the reasoning in Martini, however, this ambiguity is not resolved by the language of § 2000e-5(b). In Martini, the D.C. Circuit concluded that § 2000e-5(b) is a clear expression of Congressional intent that the EEOC has an affirmative duty to investigate a charge of discrimination and that a regulation which permits the agency to terminate its proceedings prematurely is in direct conflict with this duty. Id. at 1346. But, the Court agrees with the view of the Northern District of Illinois in Berry v. Delta Airlines, Inc. that nothing in the statute or the legislative history presented in Martini clearly states that the EEOC's duty to investigate lasts for a minimum of 180 days.
Turning to the second prong of the Chevron analysis, which is whether the regulation is a permissible construction of the statute, the Court concludes that the regulation doesn't allow the EEOC to abandon its duty to investigate. See Berry, 75 F. Supp.2d at 892-93. Rather, it requires the agency director to make a determination that the EEOC will not complete its administrative processing of the charge within 180 days. In light of the EEOC's expertise in administering the statute, it is reasonable to presume that this process was designed to allow the agency to effectively manage its load of cases by bypassing the further investigation of situations where a right-to-sue letter is likely to issue in any event and moving on to the next case. The regulation is, therefore, valid.
Applying this logic, the Court finds that the EEOC's issuance of a right-to-sue letter just four days after Mack filed a charge of discrimination was valid. Specifically, the Court notes that Mack requested a right-to-sue letter in writing and that Danny Harter, the regional director, stated that he had determined that "it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of the charge." Def.'s Ex. C. Summary judgment is denied on this issue.
B. STATE LAW CLAIMS 1. Retaliatory Discharge
Both parties have moved for summary judgment on the issue of whether Mack was terminated by Great Dane in retaliation for Mack filing a worker's compensation claim after he was injured. In his motion, Mack asserts that he was never allowed to return to work because he filed a claim for worker's compensation benefits and that Great Dane's proffered reason for his termination is dishonest. In support of this contention, Mack states that upon learning that his injury was work-related he filed a claim for worker's compensation benefits, that less one month after his injury Schooler told Great Dane that he could return to work with restrictions, that he repeatedly asked Great Dane to come back to work and that Great Dane denied his requests and then fired him under a company policy for prolonged absences which does not exist. In its cross-motion, Great Dane claims that it is entitled to summary judgment because Mack has not proven that he was terminated as a result of his worker's compensation filing and that the decision to terminate his employment was based on the company's policy of firing employees who do not return to work for one year. To support this argument, Great Dane simply points to the fact that Mack began receiving worker's compensation benefits on October 24, 1997, or over one year before he was actually fired, and that he continued to receive benefits for several weeks after his termination.
Under Indiana law, an at-will employee may recover if he is terminated in retaliation for filing a worker's compensation claim. Watkins v. Sommer Metalcraft Corp., 844 F. Supp. 1321, 1324 (S.D. Ind. 1994). This rule was first enunciated by the Indiana Supreme Court in Frampton v. Central Indiana Gas Co., 297 N.E.2d 425 (1973), and these types of claims have come to be known as "Frampton claims." In Hamann v. Gates Chevrolet, Inc., 910 F.2d 1417 (7th Cir. 1990), the Seventh Circuit held that the issue of causation in a Frampton claim is generally one for the trier of fact and that summary judgment is appropriate only when the evidence is such that no reasonable trier of fact could conclude that a discharge was caused by prohibited retaliation. Id. at 1420 (citing Peru Daily Tribune v. Shuler, 544 N.E.2d 560, 563-64 (Ind.Ct.App. 1989)).
That being said, a plaintiff making a Frampton claim must show more than a filing of a worker's compensation claim and the discharge itself in order to survive a motion for summary judgment. Watkins, 844 F. Supp. at 1326. The plaintiff must present evidence which either directly or indirectly implies the necessary inference of causation between the two acts. Id. In using indirect proof, a plaintiff may show, for example, proximity in time between the two acts or an employer's proffered reason for termination which is inconsistent with the evidence before the court. Id.
Here, several facts preclude a rational finding that Mack's termination was caused by his decision to file a worker's compensation claims. First, Mack received worker's compensation benefits for over one year before he was actually terminated. Second, Mack continued to receive benefits for several weeks after he was fired. Third, even if Mack had not been fired, Great Dane's obligation to pay him total temporary disability benefits would have ceased when Schooler issued a final report which stated that Mack's condition had reached a quiescent state and assigned him a permanent impairment rating. See Kohlman v. Indiana University, 670 N.E.2d 42, 43 (Ind.Ct.App. 1996) (employer authorized to terminate temporary disability benefits under Indiana Code § 22-3-3-10 where claimant's injury had become permanent and quiescent). For these reasons, summary judgment in favor of Great Dane is warranted.
2. Intentional Infliction of Emotional Distress
Great Dane contends that it is entitled to summary judgment on Mack's claim for intentional infliction of emotional distress because he has failed to present evidence to meet a prima facie case. In Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991), the Indiana Supreme Court stated that "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." Id. at 31 (quoting Restatement (Second) of Torts § 46). The Court emphasized that it is the intent to harm one emotionally that constitutes the basis of liability for the tort. Id. Liability is found only where the conduct "has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Gable v. Curtis, 673 N.E.2d 805, 810 (Ind.App. 1996).
In this case, Great Dane alleges that Mack has failed to show that its conduct was "extreme or outrageous" or that Great Dane acted with the intent of causing him emotional harm. In response, Mack counters that a reasonable trier of fact could conclude that Great Dane's act of firing him in retaliation for injuring himself while on the job was outrageous and that retaliatory discharge, "by its very nature," is an intentional act. However, the Court need not address either of these contentions because Indiana does not recognize the tort of intentional infliction of emotional distress in at-will employment termination situations. See Mehling v. Dubois County Farm Bureau Coop., 601 N.E.2d 5, 9 (Ind.App. 1992). Thus, Mack's claim for intentional infliction of emotional distress fails.
C. DAMAGES
In their motions for summary judgment, both parties seek judgment as a matter of law on the issue of whether Great Dane can limit its liability for damages incurred after July 13, 1999 when it discovered during Mack's deposition that he had lied on his employment application regarding felony convictions. Under the after-acquired evidence defense, evidence of an employee's misconduct acquired during the litigation process may limit damages. See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995); Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999). Stated more specifically, an employer may be found liable for discrimination but if the employer later, in discovery for example, turns up evidence of employee wrongdoing which would have led to the employee's discharge then the employee's right to pay is limited to the period before discovery of the after-acquired evidence. Sheehan, 178 F.3d at 1047.
In this case, Great Dane asserts that Mack falsified his job application by indicating that he had never been convicted of a felony. Great Dane discovered that Mack had lied when he testified during his deposition on June 13, 1999 that he thought he had been convicted of a felony for drunk driving. Great Dane later confirmed that Mack had in fact plead guilty to a felony drunk driving charge in 1991. Great Dane now contends that Mack would have been fired when the company became aware of this fact. Thus, it should not be liable for frontpay and lost medical benefits from the date of its discovery.
In response, Mack claims that Great Dane should not be allowed to limit its liability under the after-acquired evidence defense for several reasons. First, Mack argues that the company did not raise this defense until shortly before the summary judgment deadline and delayed turning over substantial amounts of information during the discovery process. He contends that Great Dane prevented him from deposing Steed and failed to produce a large volume of requested documents, primarily employment records, in a timely manner. As a result, he requests that the Court limit its analysis to the evidence produced by Great Dane prior to October 20, 1999, the date on which Great Dane served its responses to Mack's requests for admissions, interrogatories and requests for production of documents before filing a motion to continue the trial date and summary judgment deadline on October 26, 1999. Second, Mack asserts that Great Dane cannot show that it would have fired him immediately upon learning that he had lied on his application because Great Dane did not indicate that it was going to use the after-acquired evidence defense until nearly two months after it discovered his misconduct and it never sent him any type of notification that he would have been terminated.
Mack also argues that Great Dane cannot establish that it would have terminated him for falsifying a record because the evidence shows that Great Dane did not fire Steed after he falsified several company documents during the course of this litigation. In the event that Mack's allegations are true, the Court certainly does not condone such behavior. Nevertheless, lying on a job application and falsifying a document for purposes of a lawsuit are not the same thing. Thus, whether Great Dane elected to fire Steed for this conduct has little relevance to the question of whether it would have terminated Mack had it known that he lied about being a convicted felon.
None of these contentions create an issue of fact for trial. As an initial matter, the Court concludes that Mack has failed to demonstrate that Great Dane acted in such a manner during the discovery process as to warrant sanctions. A district court has discretion in imposing sanctions under Federal Rule of Civil Procedure 37. Chambers v. Nasco, Inc., 501 U.S. 32, 44-45 (1991). Here, the Court finds that while Great Dane did not raise the after-acquired evidence defense until shortly before the summary judgment deadline Mack has not shown how he was prejudiced by this delay when the deadline was subsequently extended by forty-five days. With respect to Great Dane's failure to make Steed available for deposition, the record reveals that Steed was originally to be deposed on September 22, 1999. When that date was later canceled at a September 20, 1999 conference with the magistrate judge, Mack made no attempts to reschedule this date for over a month until late October when the summary judgment deadline was extended into November. Further, when counsel for Great Dane offered two dates on which it would be available, Mack took no action to accept either date. From these facts, the Court cannot conclude that Great Dane made Steed unavailable for deposition.
As for Mack's allegation that Great Dane failed to provide the documentation requested, the Court finds that Great Dane submitted a substantial amount of the information that Mack was requesting on November 4, 1999. This timing was consistent with Great Dane's request to Mack on October 20, 1999 for an additional twenty days to locate the information. And, this delay is not unexcusable in that Mack had requested information relating to all Great Dane employees who had been terminated since 1995 for falsifying records. In light of the voluminous nature of the documents that Mack had requested, the Court declines to sanction Great Dane by limiting its analysis to the documents produced before October 20, 1999.
Having determined that all of the evidence submitted by both parties should be considered for purposes of summary judgment, the Court now turns to the substantive question of whether the facts presented demonstrate that there is no genuine issue of fact that Great Dane would have fired Mack had it known that he lied on his employment application regarding his criminal history regardless of his alleged disability. To show that Mack's wrongdoing would have resulted in immediate termination, Great Dane designates the affidavits of Steed and Lori Cook, the human resources manager for its Terre Haute facility, as well as the employment records of four individuals who were terminated for lying about a felony conviction on their employment application. These materials are sufficient to preclude a genuine issue for trial. In their affidavits, Steed and Cook state that since 1995 at least 34 employees have been terminated from Great Dane's Brazil and Terre Haute plants for falsifying a record. And, of these employees, at least 23 individuals were fired for making false statements on their employment applications and at least five people were terminated for making misrepresentations about their criminal history. The employment records of Travis Lawson, Kevin Compton, George Dixon, Charles Bender and Rhonda Meyers then substantiate these statistics as each of these individuals were fired specifically because they stated on their employment applications that they had never been convicted of a felony when in fact they had.
On November 29, 1999, Mack filed a motion to strike both affidavits. With respect to Cook, Mack contends that she was never listed as a witness on Great Dane's preliminary list of witnesses, exhibits and contentions. As to Steed, Mack argues that Great Dane should not be allowed to designate his affidavit because it made Steed unavailable for deposition. The motion is DENIED with respect to both documents. While Cook does not appear on Great Dane's preliminary list of witnesses, Mack cannot reasonably assert that he was unaware Cook might be called to testify. Indeed, Great Dane's response to Mack's September 16, 1999 discovery requests lists Cook as a potential witness. Further, Cook is Great Dane's human resources manager at the Terre Haute plant and throughout the litigation Mack has sought and been provided with information which relates to employees at this location. Similarly, Steed's affidavit is admissible because as discussed previously Great Dane did not make him unavailable to Mack for deposition.
Taken against this evidence, Mack's argument that Great Dane failed to raise the after-acquired evidence defense until two months after it learned of his conviction does not raise an issue about whether Great Dane would have fired him immediately upon discovering such information. Without more, the Court is unwilling to presume that there is little, if any, relationship between the litigation tactics of Great Dane's lawyers and the speed with which Great Dane would have taken action against one of its employees who was caught falsifying a record. Similarly, Mack's contention that Great Dane never sent him a formal termination notice is without merit as Mack had already been terminated for several months at the point that it discovered his wrongdoing. Great Dane's motion for summary judgment is granted with respect to limiting its liability to damages incurred before July 13, 1999.
IV. CONCLUSION
Mack has presented sufficient evidence to warrant a trial on the issues of whether he is a qualified individual with a disability under the ADA. At trial, any damages which he may be awarded will be limited to harm which he incurred prior to July 13, 1999. Accordingly, the Court hereby: (1) DENIES Mack's 11/15/99 "Motion for Partial Summary Judgment on his Frampton Claim and ADA Claim" and his 11/10/99 "Motion for Discovery Ruling and Motion for Partial Summary Judgment on Defendant's McKennon Defense," and (2) GRANTS IN PART and DENIES IN PART Great Dane's 11/15/99 Motion for Summary judgment. In addition, the Court: (1) DENIES Mack's 11/29/99 Motion to Strike as it pertains to the affidavits of Lori Cook (Def.'s Ex. O) and Mike Steed (Def.'s Ex. P), and (2) deems the remainder of Mack's 11/29/99 Motion to Strike, 12/21/99 Motion to Strike Steed Affidavit and Great Dane's 12/15/99 Motion To Strike Portions of Plaintiff's Statement of Material Facts as MOOT.
ORDER ON MOTIONS TO RECONSIDER
This matter is before the Court on defendant Great Dane Trailers' ("Great Dane") motion to reconsider the Court's denial of its motion for summary judgment on plaintiff Mark A. Mack's ("Mack") claim under the Americans with Disabilities Act ("ADA"). Mack has also filed a motion seeking reconsideration of the Court's dismissal of his state law claim for retaliatory discharge. After reconsidering its initial ruling on the parties' motions for summary judgment, the Court has determined that its ruling shall stand. Accordingly, Mack's ADA claims shall proceed to trial. His claim for retaliatory discharge under Indiana law is dismissed with prejudice.I. FACTUAL AND PROCEDURAL BACKGROUND
Mack filed a complaint against Great Dane alleging that Great Dane failed to accommodate his disability and terminated him because of his disability in violation of the ADA. Mack also alleged claims under Indiana law for retaliatory discharge and intentional infliction of emotional distress. On August 9, 2000, this Court denied the parties' motions for summary judgment on Mack's claim under the ADA. The Court found that there was a question of material fact with respect to whether Great Dane regarded Mack as disabled and whether Mack was a qualified individual with a disability. Great Dane urges that the Court should have also considered whether — assuming Mack were a qualified individual with a disability — it terminated him because of his disability. Finding merit in Great Dane's contention, the Court will address that precise issue. Mack also asks the Court to reconsider its dismissal of his retaliatory discharge claim under Indiana law. The Court will reconsider that ruling, also.
The relevant facts with respect to Great Dane's termination of Mack are as follows: Mack was injured at work on September 29, 1997. He began receiving temporary total disability worker's compensation benefits on October 24, 1997. That same day, Dr. Daria Schooler examined Mack and determined that he suffered from acute right peroneal neuropathy at the knee due to prolonged kneeling. Dr. Schooler determined, however, that he could return to work with certain restrictions as of October 24, 1997. Mack made several trips to Dr. Schooler over the next year, who recommended various restrictions and/or accommodations that would allow Mack to return to work. On November 12, 1998, Schooler prepared a report which stated that Mack "may have plateaued in regards to the recovery of his potential nerve palsy" and that "this may be as good as he gets." She further stated: "[Mack] could potentially return to work if he had a permanent work restriction of no lifting and if a custom work boot could be manufactured that would give him good arch support and include an ankle foot orthosis to counteract the weight of the shoe. His employer can look into that possibility for him. It might need to be made special for him at the shoe or boot manufacturer." That same day, Plant Safety Manager James Royce reviewed the report. Also that same day, Great Dane terminated Mack's employment. On November 30, 1998, Royce and Human Resources Manager Michael Steed told Mack he was terminated pursuant to a company policy providing that an employee who is absent for more than one year is subject to termination. Mack disputes that this was the real reason for his termination.
II. STANDARDS
Motions to reconsider serve a limited function "where `the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension[.]'" Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). The parties may not introduce evidence previously available but unused in the prior proceeding or tender new legal theories. Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir. 1990).
Mack actually asks the Court for relief under Fed.R.Civ.P. 60(b). That rule, however, applies only to a "final judgment, order or proceeding." There is no such finality here, as the Court's earlier entry on the cross motions for summary judgment was interlocutory. The federal rules do not provide for a "motion to reconsider" interlocutory orders. See Magnum Feeders, Inc. v. Bloedorn, 1998 WL 427614, *1 (N.D. Ill. July 24, 1998). Nonetheless, the Court will consider Mack's motion along with Great Dane's.
III. DISCUSSION A. GREAT DANE'S MOTION TO RECONSIDER MACK'S ADA CLAIM
Under the ADA, an employer is prohibited from discriminating against a qualified individual with a disability in regard to employment because of the individual's disability. See 42 U.S.C. § 12112(a). Discrimination may take the form of a failure to accommodate an employee's disability or disparate treatment of a disabled employee in regard to employment decisions, including discharging a disabled employee because of his disability. Wininger v. General Electric Applicances, 2000 WL 1876505, *5 (S.D. Ind. December 22, 2000). Mack has asserted two different ADA claims: (1) that Great Dane failed to accommodate his disability; and (2) that Great Dane terminated him because of his disability. Great Dane did not move for summary judgment on the failure to accommodate claim. As a result, the claim will proceed to trial.Great Dane asks the Court to reconsider its ruling denying it summary judgment on Mack's disparate treatment claim. Without direct evidence of disability discrimination, Mack was required to proceed under the familiar McDonnell-Douglas burden-shifting method of proof. Under this method, Mack first must establish a prima facie case of discrimination by Great Dane, which creates a presumption of intentional discrimination. The burden of production then shifts to Great Dane to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Once it does so, the inference of discrimination disappears and Mack must prove by a preponderance of the evidence that Great Dane's proffered reason was a pretext for intentional discrimination. The ultimate burden to prove intentional discrimination remains with Mack. Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir. 2000).
In its initial ruling, the Court found that a question of material fact existed with respect to whether Mack is a qualified individual with a disability. In its motion to reconsider, Great Dane simply argues that there is no evidence that its reason for terminating Mack was pretextual. Great Dane purportedly terminated Mack pursuant to its policy that employees who remain off their jobs for a year are subject to termination. Because on its face this is a legitimate reason for Mack's termination, Mack must produce evidence that it is not the real reason. See Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000) (to show pretext, plaintiff must present evidence that each proffered reason is either a lie or completely lacking a factual basis).
The Court concludes that Mack has produced evidence from which a jury could conclude that the one-year absence policy was not the real reason for Great Dane's decision to terminate him. For example, although Great Dane later discovered that the "policy" existed in its human resources manual, three different representatives from the company had previously testified that no written policy existed. While that fact alone would not likely be sufficient to establish pretext, Mack also points out that Great Dane did not terminate him after a one-year absence from the job. Instead, it waited until November 12, 1998, approximately 14 months after he left work due to his injury. Significantly, it just so happens that Great Dane decided to terminate Mack on the very day that it received a report from Dr. Schooler stating that Mack "may have plateaued in regards to the recovery of his potential nerve palsy" and that "this may be as good as he gets." She further stated: "[Mack] could potentially return to work if he had a permanent work restriction of no lifting and if a custom work boot could be manufactured that would give him good arch support and include an ankle foot orthosis to counteract the weight of the shoe. His employer can look into that possibility for him. It might need to be made special for him at the shoe or boot manufacturer." There is sufficient evidence that a jury could conclude that Great Dane intended to prevent Mack from returning to work and used its absence policy as an excuse to fire him when the real reason was because of his disability. Mack is entitled to take his disparate treatment claim to a jury and attempt to prove that Great Dane's actions were because of his disability.
B. MACK'S RETALIATORY DISCHARGE CLAIM UNDER INDIANA LAW
Mack seeks a reconsideration of the Court's dismissal of his state law claim for retaliatory discharge. The Court previously found that several facts precluded a rational finding that Great Dane terminated Mack in retaliation for his decision to file a claim for worker's compensation benefits, including the fact that Mack received worker's compensation benefits for over one year before he was actually terminated and that he continued to receive benefits for several weeks after he was terminated. In an effort to persuade the Court to reverse its ruling, Mack submits evidence that other Great Dane employees have filed lawsuits against Great Dane asserting similar retaliation claims. These other lawsuits, however, do nothing to establish that Great Dane retaliated against Mack solely for seeking worker's compensation benefits.
Mack also provides deposition testimony from James Royce that Great Dane had a practice/policy of taking employees who were recommended by physicians for return to work through a multiple step process to determine if any work was available within each employee's work restrictions. This policy apparently was in place during Mack's employment, but Royce for whatever reason did not conduct the process with Mack. According to Great Dane, however, this evidence was available to Mack when he supplemented his summary judgment materials at the end of February 2000. For whatever reason, Mack waited until this motion to reconsider to submit the evidence. Mack does not dispute that the evidence was previously available to him, nor does he offer any explanation for why he did not earlier submit the evidence. Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion. As a result, Mack cannot now submit new evidence that had been available to him at the time he filed his summary judgment materials. Accordingly, the Court will not consider this new evidence. Great Dane is entitled to summary judgment on Mack's state law retaliatory discharge claim.
IV. CONCLUSION
After considering the parties' arguments on the motions to reconsider, the Court concludes that both of Mack's claims under the ADA — failure to accommodate and disparate treatment — shall proceed to a trial by jury. The Court also concludes that it properly dismissed Mack's state law claim for retaliatory discharge. This matter will proceed to trial on the ADA claims accordingly.