The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge
Before the Court is the Motion for Summary Judgment filed by Defendant, Performance Food Group, Inc., on February 19, 2008 [Doc. 16], the Motion for Leave to File an Amended Complaint filed by Plaintiff, Steven D. Hoff, on August 14, 2008 [Doc. 38], and the Supplemental Motion for Summary Judgment filed by Defendant on September 16, 2008 [Doc. 46]. For the reasons that follow, the Motion for Summary Judgment is GRANTED, the Motion to Amend is GRANTED IN PART AND DENIED IN PART, and the Supplemental Motion for Summary Judgment is DENIED.
The following facts are undisputed. Plaintiff worked as a maintenance technician for Defendant when he applied for and received leave under the Family and Medical Leave Act (FMLA) from April 22, 2003 to July 15, 2003 due to lower back degenerative disc disease. At the conclusion of the leave, Plaintiff was subject to a 35 pound weight lifting restriction and could not perform any repetitive twisting. Plaintiff could not "carry beams," perform "racking repair," inspect all equipment, or perform annual inspections of refrigeration compressors.*fn1 He also has trouble getting in and out of the shower and tub, doing laundry, walking more than 150 feet without resting, and walking on rough surfaces. On July 10, 2003, prior to returning to work, Plaintiff telephoned Tina Rossmont, another employee of Defendant, and sought to return to work on light duty in the maintenance shop or to do clerical work. On July 15, 2003, Rossmont informed Plaintiff that Defendant would not allow him to return to work. Plaintiff's employment was terminated on July 31, 2003. After his termination, on September 11, 2003, Plaintiff authored a letter to Tony Schiltz, Defendant's Vice President of Human Resources, in which he requested accommodations under the Americans with Disabilities Act.
Plaintiff filed a Charge of Discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission on January 2, 2004. He claimed that he was discharged "in lieu of accommodation on July 31, 2003 because of physical handicap, back injury." There is no suggestion in the Charge of Discrimination that Plaintiff is asserting a disparate treatment claim or that he is asserting a failure to re-hire claim. Plaintiff received his right to sue letter and this lawsuit follows.
Motion to Amend Plaintiff seeks to amend the Amended Complaint to identify the correct legal entities and to change certain factual allegations. Specifically, Plaintiff changes the naming of Defendant from "Performance Food Group, Inc., a corporation, d/b/a Thoms Proestler Company, a corporation" to "Thoms Proestler Company, a Delaware Limited Liability Company, as successor to Thoms Proestler Company, an Iowa Corporation, a wholly owned subsidiary of Performance Food Group, A Tennessee Corporation." With respect to the factual allegations, the Amended Complaint alleges that Plaintiff underwent back surgery in January 2003, that he provided a release to return to work and a request for accommodations to Defendant in July 2003, and that Defendant failed to consider the accommodations (with an implication that Defendant thus terminated Plaintiff's employment). The proposed second amended complaint alleges that Plaintiff underwent surgery in May 2003, that he was released to return to work and requested an accommodation in July 2003, that he provided a second doctor's release with different restrictions and requested different accommodations in September 2003, and that Defendant failed to consider the accommodations requested. Presumably, Plaintiff now seeks to assert that Defendant either terminated his employment after September 2003, or that it failed to rehire him (having terminated his employment in July 2003) when he provided the second doctor's note.
Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend their pleading with the court's permission and that leave shall be freely granted. Leave to amend may be denied if there has been undue delay, bad faith, repeated failure to cure deficiencies, futility, or undue prejudice. Barry Aviation, Inc. v. Land O'Lakes Municipal Airport Commission, 377 F.3d 682, 687 (7th Cir. 2004). In this particular case, moreover, the parties are also subject to a scheduling order which set a November 1, 2007 deadline for amending the pleadings [Doc. 9, and following entry adopting the schedule entered on July 18, 2007]. As such, Plaintiff must show "good cause" for modifying the schedule pursuant to Federal Rule of Civil Procedure 16(c)(4). Plaintiff's motion does not include the necessary statement of good cause: it merely states that it seeks to correct some factual errors.
Defendant objects and argues that Plaintiff is seeking to add a new party and a new claim. As to the naming of the proper Defendant, the Motion for Summary Judgment (filed by Defendant prior to the Motion to Amend) states that:
Hoff incorrectly sued Performance Food Group company ("PFG") "d/b/a Thoms Proestler Company." Thoms-Proestler Company, LLC is a Delaware limited liability company ("TPC"), which is the successor to Thoms Proestler Company, an Iowa Corporation, which was the employer of Hoff at times material to Hoff's Complaint. [Doc. 16, p. 1, ¶ 2].
Defendant goes on to note that TPC is a wholly owned subsidiary of PFG [Doc. 16, p. 2, ¶ 3]. It appears that Plaintiff's proposed second amended complaint merely parrots Defendant's own representation of the corporate relationship between TPC and PFG. As such, it is unclear what objection, other than timeliness, PFG has to the proposed amendment. This proposed amendment appears to merely change a defect in the pleadings. Defendant is aware of the claims against it and has received the necessary notice. This proposed change does not make any modification to any of the claims made by Plaintiff. As such, this amendment is allowed.
With respect to Plaintiff's presumed allegation that Defendant failed to rehire him after he submitted the September 2003 changes to his physical limitations, Defendant asserts that such an amendment would be futile. Plaintiff has not responded to this argument in his lengthy reply. The Court notes that the Charge of Discrimination only alleges that Defendant terminated Plaintiff's employment; it does not allege that Defendant failed to rehire Plaintiff. Moreover, the undisputed evidence reveals that Plaintiff's employment was terminated in July 2003. Therefore, adding a presumed allegation that Defendant failed to rehire Plaintiff in September 2003, would be futile as it would not survive a motion for summary judgment. Kind ex. rel. King v. East St. Louis School Dist. 189, 496 F.3d 812, 819 (7th Cir. 2007). In light of the futility of the amendment and Plaintiff's failure to respond to Defendant's argument (See Local Rule 7.1), this amendment is not allowed.*fn2
In sum, the Motion to Amend is allowed only to the extent that Plaintiff changes the naming of Defendant.
Motions for Summary Judgment
Summary judgment should be granted where "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 has the responsibility of informing the Court as to portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the movant has met its burden, to survive summary judgment the "non-movant must show through specific evidence that a triable issue of fact remains on issues on which [s]he bears the burden of proof at trial." Warsco v. Preferred Tech. Group, 258 F.3d 557, 563 (7th Cir. 2001); See also Celotex Corp., 477 U.S. at 322-24. "The non-movant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence." Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir. 1997).
This Court must nonetheless "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). In doing so, this Court is not "required to draw every conceivable inference from the record -- only those inferences that are reasonable." Bank Leumi Le-Isreal, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). Therefore, if the record before the court "could not lead a rational trier of fact to find for the non-moving party," then no genuine issue of material fact exists and, the moving party is entitled to judgment as a matter of law. McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). However, in ruling on a motion for summary judgment, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
Defendant first argues, in its supplemental Motion for Summary Judgment, that Plaintiff has failed to exhaust his administrative remedies. Prior to filing a discrimination lawsuit in federal court, a plaintiff must exhaust his administrative remedies. This includes filing a timely Charge of discrimination (hereinafter "Charge") with the Equal Employment Opportunity Commission (EEOC). Chaudhry v. Nucor Steel-Indiana, 546 F.3d 832, 836 (7th Cir. 2008) (Title VII case). The subsequent federal lawsuit must be within the scope of the Charge filed with the EEOC. Conner v. Illinois Dept. of Natural Resources, 413 F.3d 675, 680 (7th Cir. 2005).
Plaintiff filed a Charge with the Illinois Department of Human Rights and the EEOC on January 2, 2004. In the Charge, Plaintiff asserts that he was "discharge[d] in lieu of accommodation on July 31, 2003, because of physical handicap, back injury."*fn3 The Charge also indicates that Plaintiff is "handicapped within the meaning of the Ill Human Rights Act Section 1-103(1) [sic]."*fn4 The Charge neither mentions the ADA nor that Plaintiff suffered from a disability. Defendant argues that this Charge then is "strictly limited" to making a claim under the Illinois Human Rights Act that Plaintiff was discharged due to a handicap rather than discharged due to a disability under the ADA.*fn5 To support this argument, Defendant notes that the definitions for ...