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Duncan v. Fleetwood Motor Homes of Indiana

February 29, 2008

BARRY K. DUNCAN, PLAINTIFF-APPELLANT,
v.
FLEETWOOD MOTOR HOMES OF INDIANA, INCORPORATED, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 6 C 42-Roger B. Cosbey, Magistrate Judge.

Per curiam.

ARGUED JANUARY 29, 2008

Before BAUER, KANNE, and ROVNER, Circuit Judges.

Barry Duncan worked at Fleetwood Motor Homes of Indiana for 20 years, 15 of them as a material handler. In 2004, when Duncan was 51, Fleetwood told him he could no longer work as a material handler. The company offered Duncan several less desirable jobs in the following months, and eventually he accepted a position as an assembler. Duncan sued, claiming that Fleetwood violated the Age Discrimination in Employment Act by forcing him to give up his job as a material handler. A magistrate judge, presiding by consent, granted summary judgment for Fleetwood. Because we conclude that questions of fact remain concerning the legitimacy of Fleetwood's explanation for its action, we vacate the judgment and remand for further proceedings.

I.

Except as otherwise noted, the following facts are undisputed. Fleetwood hired Duncan in 1987 to work as one of about 40 material handlers at its manufacturing facility in Decatur, Indiana. He was briefly laid off in 1990 and afterward held a variety of positions until he regained his permanent job as a material handler in 1993. Duncan continued to work as a material handler until his position was given to a younger man in September 2004.

What motivated that action is the issue here. In December 2003, Duncan had injured his back at work while moving a box weighing between 60 and 70 pounds. His doctor imposed temporary work restrictions, though he still returned to his job the next day. Initially he was limited to less than 25 pounds of constant lifting, pushing, and pulling, but this limit was raised to 30 pounds in January and 40 pounds in April. These restrictions did not prevent Duncan from performing the essential functions of a material handler, and during his recovery he never asked management for any formal accommodation. On occasion, a task required that Duncan lift something in excess of the temporary restrictions. For example, about once each week, he encountered a 60-to-70-pound box like the one he was moving when he injured himself. As instructed by Fleetwood, Duncan sought assistance from a co-worker in these limited circumstances and completed the tasks. Duncan received medical treatment for his back injury over the next seven months, but he did not miss any work days as a result of his injury. On July 13, 2004, Duncan's doctor released him from all work restrictions. From then on he required no special assistance in moving heavy objects.

A few weeks later, Duncan noticed other employees wearing armbands designed to reduce elbow strain. Duncan had been experiencing elbow pain for a few days, so he stopped at Fleetwood's safety station and asked for a pair. While Duncan was there, the first-aid attendant inquired about his back, and Duncan replied that he still felt some minor pain in his leg and hip. This answer prompted the attendant to remind Duncan that his claim for worker's compensation was already closed. Duncan explained that he was not asking to see a doctor, but simply following his doctor's advice to keep the company apprised of his condition. Shortly thereafter, Fleetwood told Duncan that he must undergo a functional capacity evaluation ("FCE") to gauge his fitness to perform the duties of a material handler.

The physical therapist who conducted the FCE on August 12, 2004, used a job description printed on letterhead from WorkSTEPS, an outside consultant. This job description for material handlers is dated April 4, 2004, and was created after Duncan injured his back in 2003. Fleetwood submitted no evidence at summary judgment about the sources of information used in creating the job description, nor did Fleetwood even produce evidence that WorkSTEPS actually had a role in creating it. Fleetwood simply attached the document to an affidavit from its personnel manager, who said the job description was "in place" but gave no hint how it got there. The document bears a signature line for a Fleetwood employee to acknowledge the accuracy of the listed physical requirements, but the line is blank. A signature line for a WorkSTEPS representative also is blank. The job description requires, among other things, that a material handler be able to lift 97 pounds occasionally and 73 pounds frequently. Duncan testified that these lifting parameters are inaccurate; he said, and Fleetwood did not dispute, that material handlers do not lift items that heavy without a machine or help from a co-worker. The physical therapist also voiced skepticism about the job description. She noted that Duncan was unfamiliar with some of the listed duties, and commented that his return to work after his injury without any incident or missed days raised a concern about the credibility of the job description. Fleetwood offered no evidence that it had used this job description to conduct an FCE for any other currently employed material handler, or any applicant for that position. Nonetheless, the physical therapist performed the FCE using the job description she was given and concluded that Duncan was not able to lift 97 pounds occasionally or 73 pounds frequently.

That conclusion prompted Duncan's doctor to impose permanent restrictions on August 19, 2004. Among other limitations, Duncan was barred from ever lifting 97 pounds and directed not to lift 73 pounds frequently. Fleetwood's safety manager then told Duncan he probably could not continue working as a material handler. Duncan countered that none of the restrictions imposed by his doctor would impede his ability to perform the requirements of the job, and he insisted that his years working as a material handler demonstrated that the job description was inaccurate.

In response to Duncan's protests, Fleetwood hired an occupational therapist who, according to her written report, visited the Decatur facility to assess the validity of the job description and compare it to Duncan's permanent restrictions. She wrote that a "tour of the facility and discussion and review of the many job duties required of a material handler" led her to conclude that the position in fact required the ability to lift 97 pounds occasionally and 73 pounds frequently. As with the job description itself, however, Fleetwood introduced the occupational therapist's report through its personnel manager, who verified that the document was in the company's files but once again said nothing about the events underlying its creation. Fleetwood did not introduce any testimony from the occupational therapist, or any evidence about who or what she consulted when she purportedly toured Fleetwood's facility to verify the accuracy of the unsigned job description.

On September 9, 2004, after receiving the occupational therapist's report, Duncan's supervisor, Adam Stucky, summoned Duncan and told him that Fleetwood was placing him on unpaid medical leave because the results of the FCE revealed that he could not perform the essential tasks of his job. Duncan maintains, however, that after the FCE was conducted on August 12, he continued to perform the essential tasks required of material handlers and had not been given a lighter workload or failed to perform a requested task. Nor after the FCE was he ever counseled about his performance. Duncan asked Stucky what tasks he supposedly could not perform, but got no answer. Duncan also asked Stucky why Fleetwood had made this decision; Stucky, a man of similar age, answered that Duncan must recognize that the two of them no longer could do many things.

When his job was taken from him, Duncan also was told that his unpaid medical leave would end and that his employment would be terminated if Fleetwood could not find another position for him within 30 days. Duncan also was told that it was his responsibility to telephone Fleetwood every day to inquire about open positions. Duncan did so twice a day, even after 30 days had passed. In November 2004, Fleetwood offered Duncan a clerical position. Duncan declined because he lacked clerical experience and the job paid less than material handling. Indeed, the Fleetwood personnel employee who made the offer told Duncan the job probably would not interest him. Fleetwood next offered Duncan a paint-preparation job in December 2004, but Duncan declined again because he did not want to work the night shift. In late December 2004, Fleetwood offered to hire Duncan as an assembler. Duncan accepted this position and returned to work in early January 2005. Fleetwood does not dispute that assemblers have less opportunity to earn overtime pay than material handlers.

Duncan was replaced by a worker under age 40. He then filed a charge of discrimination with the Equal Employment Opportunity Commission in April 2005. After receiving a right-to-sue letter, he timely filed this lawsuit claiming discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34. The parties consented to ...


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