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May 9, 2005.

CBOCS WEST, INC., d/b/a/ Cracker Barrel Old Country Store, Defendant and Counterplaintiff.

The opinion of the court was delivered by: JAMES ZAGEL, District Judge


Plaintiff Timothy Banks ("Banks") has filed suit against his former employer CBOCS West, Inc. ("CBOCS"), which operates the Cracker Barrel chain of restaurants and stores. Banks alleges that the company discriminated against him in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., when it demoted him from general manager to associate manager, and when it subsequently failed to promote him, gave him a final warning, terminated his employment and filed a counterclaim against him. After four years of litigation, CBOCS has moved for summary judgment of each of Banks' claims.

I. Factual Background

  Banks began working at Cracker Barrel in 1989 as a line cook. By 1999, Banks had been promoted several times, achieving the position of General Manager, and was in charge of an entire Cracker Barrel store (the "Tinley Park store"). Throughout his employment, Banks suffered from Crohn's disease, which affects his ability to properly digest food. Banks suffers daily from the symptoms of his disease, which include pain and diarrhea that necessitated up to a dozen trips to the restroom each day. His discomfort varies at times, but becomes worse during what Banks describes as "flare-ups." These flare-ups may last one day or may linger for up to one year. During these flare-ups, Banks is unable to attend work or perform any work. When he is not experiencing flare-ups, Banks still suffers from pain, discomfort and diarrhea but is capable of working.

  In early 2000, Banks' symptoms began to worsen. On March 14, 2000, Banks was suffering from so much pain, diarrhea and weight loss that he could no longer work. Banks contacted his direct supervisor, District Manager John Morst ("Morst") and left a voicemail explaining that he needed time off for medical reasons. Morst returned his call the following morning and insisted that Banks meet with him at the store and bring a doctor's note explaining his condition. Later that afternoon Banks and his fiancée met with Morst. After Banks stated that his medical condition was preventing him from working and that he needed time off from work, Morst informed Banks that the company could not hold the General Manager position open for him and that Banks would be replaced. Morst indicated that upon Banks' return from leave, he would be placed in another store as an associate manager. Banks accused Morst of demoting him because he was taking medical leave, but nonetheless completed an FMLA form requesting time off for his medical condition and began a period of medical leave.

  By May 2000, Banks' condition had improved and he contacted Morst asking to return to work. to the point where he was able to return to work. When Morst asked Banks to identify several stores at which he would prefer to work, Banks suggested the Hammond, Merrillville or Matteson stores because of their good location. The next day, Morst offered Banks the position of Associate Manager at a store in Ottawa, Illinois (the "Ottawa store"). Banks initially refused the position because it would involve a 170-mile round trip from his home. Banks contacted Regional Vice President Dave Swartling ("Swartling") to express his displeasure about the Ottawa location, as well as his change in status from General Manager to Associate Manager. Swartling promised Banks that the Ottawa position was temporary, and that the company would compensate him for his travel and temporary lodging expenses. Swartling also expressed surprise at learning that Banks believed his change in status was a demotion that violated the FMLA. Swartling believed that Banks had voluntarily stepped down and suggested that Banks was lying about being demoted in response to requesting medical leave. After the conversation, Banks relented and accepted the Ottawa store's Associate Manager position, believing that he had no choice but to do so.

  Ultimately, Banks worked in Ottawa for less than two weeks. CBOCS then transferred Banks to the company's store in Matteson, Illinois (the "Matteson store"). Although he was much closer to home, Banks' fortune did not improve at this store, where he sensed that his regional manager, District Manager Bryan Frank ("Frank"), disliked him because of his complaint of discrimination. However, not everyone was unhappy with Banks. He received a quarterly performance evaluation from an immediate supervisor, Bill DeLarme, in which he was rated as "exceeds requirements."

  CBOCS and Banks were unable to resolve their disagreement over the nature of, and reasons for, Banks' demotion to associate manager. On July 20, 2000, Swartling, Morst and Frank traveled to the Matteson store to meet with Banks and discuss his allegation that the demotion violated the FMLA and was an act of discrimination. Banks refused to discuss the issue because he had already retained counsel to represent him in litigation he intended to file related to the demotion. Banks filed a charge of discrimination with the EEOC on October 17, 2000, and filed the first Complaint in this action on February 5, 2001.

  After filing his Complaint, Banks continued to work at the Matteson store as an associate manager, receiving evaluations with an overall score of "3/meets requirements" (on a scale of 1 to 5) for the first, second and third quarters of Fiscal Year ("FY") 2001. Defendant then transferred Banks to its Merrillville, Indiana store where General Manager Hans Oskam became Banks' immediate supervisor. Frank remained Banks' regional District Manager.

  Sometime during July 2001, Banks asked Oskam and Frank what he would need to do to be promoted to Senior Associate Manager ("SAM"), a position that falls between associate and general managers. Banks also reviewed the Field Management Demotion Policy (FMDP) posted on the company intranet, which discussed requirements for former general managers seeking promotion to the SAM position. Banks formally sought promotion to the SAM position via letter to Regional Vice President Swartling in August, 2001.

  Banks did not receive a response to his request for promotion for eight months. During that time, he began receiving negative evaluations and feedback from his manager. For example, Banks received a score of "2/needs improvement" on his fourth quarter and overall annual evaluation for FY 2001. That evaluation period ended in July 2001, before Banks made his written request for promotion but after Banks indicated his interest in promotion to Oskam and Frank. Banks contends that he was fully qualified for promotion when he applied in August 2001 because his most recent evaluations placed him in the "meets requirements" or "exceeds requirements" categories and because he did not receive the fourth quarter evaluation until September 2001. However, the July 2001 evaluation would not be Banks' only low score. He received a second "2/needs improvement" rating in his evaluation for the first quarter of FY 2002.*fn1 Banks was also "written up" in January, 2002 for failing to complete some of his managerial responsibilities.

  Banks claims that in the period after he requested a promotion, Oskam treated him more harshly than other associate managers, and in particular Bob Cherepski, whom Banks alleges violated multiple CBOCS policies but who was nonetheless promoted to General Manager. Banks alleges that Oskam manufactured reasons to lower Banks' quarterly performance scores, in order to prevent his promotion, and "wrote him up" for policy violations that were either nonviolations or violations routinely tolerated when committed by others. Finally, in April 2002, Defendant denied Banks' request for promotion to SAM in a letter signed by Swartling explaining that Banks failed to meet all of the requirements for the position.

  Two months later, CBOCS issued Banks a final warning for violating its asset protection policy when he allowed his (future) wife to be present in a restricted area of the store after it was closed. Several weeks after receiving that final warning, Banks left a message in Oskam's voicemail criticizing Oskam's treatment of Banks in front of another employee. That voicemail stated:
This message is for Hans. I just want to let you know, don't you ever humiliate me again by making me stand there and enter an order into the computer while you sit on your butt in the chair and talk to your sidekick Bob. I will not tolerate it. Oskam forwarded the message to District Manager Frank, who informed Swartling that he intended to fire Banks. Swartling did not disapprove of Frank's decision and Banks was fired on July 17, 2002.
  Banks claims that his termination was inconsistent with CBOCS' behavior toward other associate managers charged with similar bad behavior, and that his termination was actually an act of retaliation for his decision to file a discrimination complaint based on his demotion from General Manager to Associate Manager. Banks also claims that CBOCS' decision to file a counterclaim against him in this case was an additional act of retaliation. The remainder of this opinion addresses each of Banks' FMLA- and ADA-based claims, beginning with his demotion to Associate Manager and concluding with the events that led to his termination and CBOCS' decision to file a counterclaim against him.

  II. Summary Judgment of Banks' Claims

  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). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986). A genuine issue of material fact exists when there is evidence on the basis of which a reasonable jury could find in the plaintiff's favor, allowing for all reasonable inferences drawn in a light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Banks must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). Defendant demands summary judgment of Banks' claims on three grounds: 1) Banks' ADA claims fail because he is not disabled as a matter of law; 2) Banks' FMLA claim of retaliatory demotion fails because he was a "key employee," and therefore not entitled to reinstatement; and 3) Banks' remaining claims fail because he failed to raise genuine issues of material fact demonstrating that he was subject to unlawful retaliation under either the FMLA or ADA.

  1. Banks' Disability

  The ADA prohibits employers from discriminating against persons with disabilities in connection with employment activities including advancement and discharge. 42 U.S.C. § 12112. The ADA protects "qualified individual[s] with a disability," defined as "individual[s] with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position." Id. § 12111(8). An employee must be disabled within the meaning of the statute in order to qualify for its protection. Defendant insists that Banks is not entitled to protection under the ADA because he is not disabled as a matter of law.

  A disability is a "physical or mental impairment that substantially limits one or more of the major life activities of such individual[s]." Id. § 12102(2)(A). Additionally, a disability may constitute a "record of such impairment" or "being regarded as having such impairment." Id. § 12102(2)(B)-(C). A physical impairment is "any physiological disorder or condition . . . affecting one or more" of certain of the body's systems, including the digestive system. 45 C.F.R. § 84.3(j)(2)(i). Whether a plaintiff is disabled under 42 U.S.C. § 12102 turns on whether the plaintiff suffered from a physical or mental impairment; whether the major life activity claimed by the plaintiff constituted a major life activity under the ADA; and whether the plaintiff's impairment substantially limited the major life activity. Furnish v. SVI Sys., 270 F.3d 445 (7th Cir. 2001) (citing Bragdon v. Abbott, 524 U.S. 624, 631-39 (1998)).

  Defendant contends that Banks is not disabled because he cannot establish that he was substantially limited in performing a major life activity or demonstrate that he was substantially limited in his ability to perform a wide range of jobs, and that his impairment was too "intermittent" to constitute a disability. Defendant also argues that Banks falls outside of the ADA's protection because he is not a "qualified employee" in light of his inability to perform his job during flare-ups. Banks argues that he was substantially limited in performing the major life activities of digesting food and proper waste processing; that although he was not substantially limited in his ability to perform a wide range of ...

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