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Baumgarden v. Challenge Unlimited

November 28, 2005


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


Before the Court are the parties' cross-motions for summary judgment, and responses filed thereto.


This action arises out of plaintiff's former employment with defendant. The complaint alleges that plaintiff was employed as the Director of Information Services, and that plaintiff took leave under the Family Medical Leave Act ("FMLA") from January 8, 2003, to March 10, 2003, at which time he attempted to return to work. He claims he was wrongfully prevented from returning to work until he saw a company physician, and that, once he was allowed to return to work, he was retaliated against, his duties were diminished and he was discriminated against in that he was replaced as Director of Information Services by Mike Robinson, a younger individual with no disabilities. He claims that the work environment became hostile to the point where he was forced to resign on July 30, 2003.

Count I of the complaint alleges a violation of the FMLA. Count II alleges a violation of the Americans with Disabilities Act. Finally, Count III alleges age discrimination. Defendant filed its motion for summary judgment as to all counts of the complaint. Plaintiff responded with a cross-motion for partial summary judgment as to Count I only. Plaintiff has not responded to defendant's motion for summary judgment with respect to Counts II and III.


Summary judgment is appropriate "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). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating that judgment should be granted as matter of law.See, Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once a motion for summary judgment has been made and properly supported, however, the non-movant has the burden of setting forth specific facts showing the existence of a genuine issue for trial. See, id. In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable and justifiable inferences in that party's favor.See, Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

The Court will first briefly address Counts II and III. With respect to Count II, defendant argues that plaintiff was not a qualified individual under the ADA, specifically, that he was not "disabled" as that term is defined by the ADA. With respect to Count III, defendant argues that even if plaintiff could prove that he was replaced by Mike Robinson (a fact that defendant disputes), Robinson is only three years younger than plaintiff, which plainly contradicts plain-tiff's age discrimination claim. As noted, plaintiff has not responded to defendant's well-reasoned and properly supported arguments. Upon review of the arguments presented in defendant's motion, the Court finds that summary judgment in favor of the defendant is appropriate on Counts II and III.

In order to address defendant's motion with respect to Count I, it is helpful to set forth the allegations in the complaint more thoroughly. Plaintiff alleges: that he was wrongfully prevented from returning to work until he saw a company doctor; that he was retaliated against in that he was stripped of his duties and title; that he was ordered to return his company keys and credit card; and that he was assigned menial tasks, for example, cleaning out the hot, un-air-conditioned warehouse. He further claims that as a result of the hostile work environment, he was constructively discharged, specifically, that he was assigned tasks in extreme working conditions despite defendant's knowledge that he suffered from obesity, heart disease and diabetes, and that the working conditions were so unbearable that he was forced to resign.

The FMLA provides that, under certain circumstances, an employer must allow an eligible employee to take up to twelve work weeks of leave during any twelve-month period because of a serious health condition that prevents the employee from performing the functions of his position. 29 U.S.C. § 2612(a)(1)(D). In furtherance of this goal, the Act allows both for the employee to take leave and to be reinstated when his leave is finished. Upon return the employee is guaranteed reinstatement to the employee's original position or an 'equivalent position'. 29 U.S.C. § 2614(1). Here, plaintiff was provided leave from his position because of a serious health condition under the FMLA.

"A claim under the FMLA for wrongful termination can be brought under either a discrimination/retaliation or interference/entitlement theory; the difference is that the first type of claim requires proof of discriminatory or retaliatory intent while the latter requires only proof that the employer denied the employee his or her entitlements under the Act." Kauffman v. Fed. Exp. Corp., 426 F.3d 880, 884 (7th Cir. 2005). Here, it appears that plaintiff is alleging retaliation and a hostile work environment, as well as seeking relief under an interference/entitlement theory.

In support of its motion for summary judgment on Count I, defendant first attempts to rebut plaintiff's assertion that he was replaced by Mike Robinson, and that he was no longer responsible for management of the MIS program. Defendant maintains that plaintiff's title was "information specialist" and not "director", and therefore, when Mike Robinson was hired as the director, he did not technically replace plaintiff. However, even defendant admits that plaintiff may have been "referred to" as director, although his official title remained that of information specialist. Plaintiff has submitted evidence that he was referred to as "Director of MIS -Information Specialist" on a performance evaluation and on a grievance report response. (See, Doc. 32, Ex. A-4). The Court finds that an issue of fact remains with respect to whether plaintiff was in fact replaced by Robinson.

Defendant also claims that it was routine for it to request fitness-for-duty examinations, and that requiring such examinations is permissible if it is "job-related and consistent with business necessity." In response, plaintiff claims that because he was released by his own doctor with no restrictions, defendant was not permitted to require him to submit to an exam by the company selected doctor. Plaintiff claims that he should have been reinstated to his position first, and then defendant, if it had concerns about his ability to do his job, could have ordered further examination as necessary. Both parties cite Harrell v. U.S. Postal Serv., 415 F.3d 700 (7th Cir. 2005), vacated and set for rehearing on an unrelated issue (7th Cir. Nov. 1, 2005). Essentially, the Harrell court noted that the FMLA requires an employer to allow an employee to return to work based solely upon the certification of the employee's own health care provider, and held that any requirement imposing a greater burden on the employee than the return-to-work provisions of the FMLA violate the employee's rights. Id. at 713. Here, plaintiff argues that defendant impermissibly required him to submit to further medical examination prior to his return to work after being released to return by his own doctor.

Based upon the evidence before the Court, plaintiff's argument is well taken. It is clear that defendant violated plaintiff's rights under the FMLA by requiring him to submit to a further fit-for-duty exam by defendant's company selected doctor prior to allowing him to return to work when he had already been certified fit to return to work by his own doctor as required under the FMLA. Defendant asserts that it allowed plaintiff to return to work prior to requiring a further examination; the evidence, however, points to the contrary. (See, e.g., Doc. 32, Ex. L, "Plan of Action" dated March 10, 2003, stating that: "Employee will most likely have a release to return to work.... Employee will be informed that he will not be allowed to return to work however.... [W]e are requiring, in this case, that he be seen by our psychiatrist before he starts back to work...."). In fact, defendant states in its brief that "following his [company-required fitfor-duty] evaluation..., the Plaintiff returned to work on April 28, 2003." Under Harrell's reasoning, defendant was required to reinstate plaintiff upon his physician's release, and only then could it impose a further examination requirement. Defendant presents no evidence that plaintiff was permitted to return to work prior to the completion of a medical review by a company selected doctor. The only evidence that defendant provides on this issue is that plaintiff, despite being advised that his "leave" pending examination would be unpaid, was in fact paid his salary pending completion of the company required examination. (See, Doc. 24, Ex. B-2, p. 34). ...

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