The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
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.
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
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
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
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
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.
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 ...