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Harroun v. Southern Wine & Spirits of Illinois

August 23, 2010


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge.


Dwain Harroun is a district manager at Southern Wine and Spirits of Illinois, Inc. (Southern). In 2004, management at Southern transferred Harroun from his position as a district manager to a position in the warehouse to assist with problems it was having with its wine supply. Harroun was displeased with the transfer, which he viewed as a demotion. Harroun was eventually returned to his original position as district manager. In 2006, Harroun went on medical leave after injuring his back. He returned to work as a district manager several months later, but he was assigned to a different territory from the one he had managed before he went on leave.

Harroun argues that his initial transfer to the warehouse amounted to age discrimination. He also contends that by delaying his return to work after medical leave for his back injury, Southern impermissibly discriminated against him on the basis of perceived disability and that both the delay his subsequent assignment to a new territory amounted to retaliation for his complaints about age discrimination.

Harroun sues Southern for age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, for retaliation under the ADEA,*fn1 and for discrimination on the basis of disability under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12117. Southern has moved for summary judgment on all of Harroun's claims. For the reasons stated below, the Court grants the motion.


Southern is a wholesale distributor of alcoholic beverages. Harroun was hired by one of Southern's predecessors as a district manager (a sales position) in September 2002. At the time he was hired, he was over forty years old. In 2003, Harroun's employer combined with another wholesaler to become Southern. Combining the operations of two different wholesalers was challenging and resulted in serious problems in the warehouse, particularly involving wine products. Wines were not being sorted properly according to vintage when they arrived at the warehouse, and the warehouse staff was insufficiently familiar with the nuances of wine products to ensure that wine orders were being fulfilled properly. Southern assigned a district manager with experience with wine to work in the warehouse as a "sales fulfillment manager" to address this problem.

In July 2004, Harroun was called into a meeting with Danny Romano, Southern's president, and John Acott, Southern's vice president of retail wine and Harroun's supervisor. Romano and Acott told Harroun that he was being assigned to the warehouse in the role of sales fulfillment manager to assist with the problems that were occurring with fulfilment of wine orders. Harroun was the third person to be assigned to the role. Both of the others who preceded Harroun were also former district managers and were also over forty.

Harroun, who did not have any experience with warehouse operations, told Romano and Acott that he did not want the position. Romano told Harroun that the company needed him in the warehouse and he was expected to take the position. Harroun was also told that his compensation in the warehouse would be the same as it was in his position as district manager.

Harroun began working in the warehouse, where he opened and sorted cases of wine by vintage, assisted with fulfillment of wine orders, and passed out samples. On August 23, 2004, Harroun filed a grievance with his union, alleging that his transfer to the warehouse position was a demotion and was the result of age discrimination. He continued to complain about his transfer to the warehouse during his time there, including a complaint to Yvonne Mug in Southern's human resources department in which Harroun also mentioned age discrimination.

On November 30, 2004, Harroun was called into a meeting with several Southern executives and a union representative. In that meeting, Harroun again communicated his dissatisfaction with his position in the warehouse and his belief that his assignment there was based on age discrimination. Barry Goldberg, a senior vice president at Southern who had called the meeting, assured Harroun that Southern did not discriminate and that he was moved to the warehouse not because of his age but because it had identified an important position that needed to be filled and Harroun had the knowledge and experience to do it. Goldberg told Harroun that he felt Harroun was responsible for much of the improvement that had been seen in the warehouse in the prior few months. Goldberg went on to say that Southern knew Harroun was unhappy in the warehouse, however, and had therefore decided to allow him to return to his former district manager position. After the meeting, Goldberg sent Harroun an e-mail confirming the offer to return to his district manager position and requesting a reply by the close of business on December 3, 2004.

On December 6, 2004, Harroun sent Goldberg an email that said, among other things "[p]utting me back in the [district manager] position does not remedy the situation." Def.'s Mot. for Summ. J., Ex. 21. Harroun identified several issues that he felt would persist even if he were moved back to this district manager role. These included what he characterized as a "conspir[acy]" on the part of Southern's management "to maliciously and unethically to push [him] out of sales and eventually force [him] out of this organization"; ongoing age discrimination; the fact that he believed his opportunities for advancement within the organization had been compromised; undercompensation for the period he spent in the warehouse; and an allegation that account bribery was taking place within Southern that "the Illinois Liquor Commission would not only object to. . . but severely punish." Id. Harroun's e-mail concluded: "as I mentioned in the meeting. . . I must have these issues addressed prior to considering your proposal of returning to my former capacity/role as an active D.M." Id.

On December 11, 2004, Goldberg replied to Harroun's e-mail. He reiterated that Southern does not discriminate and directed Harroun to a portion of the employee handbook that states that employees who make complaints "can be certain that no retaliation will be taken against them for accurately reporting harassment." Goldberg stated that "you will continue to be held accountable for the performance of your job. The same accountability we hold all employees to. There will be no retaliation or special treatment." Goldberg's e-mail concluded that "[s]ince you have not accepted our offer, I can only assume that you are no longer interested in [his former district manager position]. . . . Please continue to work in the warehouse in your current capacity." Harroun continued to work in the warehouse.

In April 2005, Harroun filed an age discrimination complaint with the Equal Employment Opportunity Commission (EEOC), alleging that he had been moved to the warehouse and denied his district manager position on the basis of age. In August 2005, Southern filled some vacant district manager positions, but Harroun remained in the warehouse. Harroun complained to the human resources department that he had been "passed over" in his request to return to his district manager position.

At some point in 2005, Harroun suffered an injury to his back. He had surgery in September 2005 that required him to go on medical leave. Around the same time, Jeanette Page, who was designated by Southern to investigate the bribery allegations in Harroun's December 6 e-mail, was completing her investigation. As part of her report, Page also addressed Harroun's claim that he had been moved to the warehouse as retaliation for being a "whistleblower" on the issue of account bribery. Def.'s Mot. for Summ. J., Ex. 27 at 40. Page concluded that there was no evidence that Harroun's move to the warehouse had been retaliatory, because he had made no complaints of commercial bribery prior to or during the meeting where he learned he was being moved to the warehouse. Id. Nonetheless, Page concluded that Harroun was very unhappy in the warehouse position and that Southern was unhappy with his continued performance there, so she recommended that Harroun be returned to a district manager position. The company agreed with this recommendation. Id. at 41-42; Ex. 28 at 2-3.

Page's recommendations were issued shortly before Harroun had surgery on his back. In her letter to Harroun summarizing her findings, Page said that "[t]o the extent possible, the Company will leave the D.M. position unfilled or hire a temporary employee to fill in" during the term of Harroun's leave and that she would discuss with him "what type of accommodation that [he] will need from the company" upon his return. Id. Page also informed Harroun that there would be no retaliation for his complaint and stated that if he experienced anything he believed to be retaliation, he should contact her directly. Id.

When Harroun returned to work following his back surgery in October 2005, he was assigned to the same district manager territory he had before his move to the warehouse. During this period, he was limited in the amount of weight he could lift, and a merchandiser was assigned to assist him with lifting tasks.

In December 2006, Harroun again injured his back and was granted leave under the Family and Medical Leave Act. The leave lasted several months. During this time, Harroun's treating physician imposed gradually decreasing limitations on the amount of weight Harroun could lift, starting with five pounds and increasing to ten pounds. In August 2007, Harroun's treating physician cleared him for regular work. Southern required Harroun to submit to a fitness for duty examination, which was standard practice for employees returning from medical leave. In that examination Dr. Fletcher, the physician Southern selected, concluded that Harroun could not lift the amounts specified in the job description for a district manager, which at the time required district managers to lift up to one hundred pounds. Dr. Fletcher noted, however, that Harroun contested that description and maintained that he was required to lift only twenty-five pounds as a district manager. Dr. Fletcher's report said that the lifting requirements of the job needed to be clarified, and he referred Harroun for a functional capacity evaluation.

The functional capacity evaluation was conducted on September 14, 2007. The examination report also noted the discrepancy between the job description from Southern and what Harroun maintained was the actual amount of lifting required of a district manager. In late 2007, Fletcher conducted a job site analysis, where he observed a district manager at work. He concluded that Harroun would be unable to perform the job without risk of further injury.

In early 2008, Southern conducted a study of the district manager position and concluded that the position required lifting only twenty-two to fifty pounds, not up to one hundred pounds as previously stated. The job description was modified accordingly. In February 2008, Southern asked Harroun's treating physician whether he could perform the duties of a district manager in light of the modified job description and the concerns Dr. Fletcher had expressed in his reports. Harroun's physician replied that he believed that if Harroun was limited to lifting twenty-five pounds "he'll do just fine." Def.'s Mot. for Summ. J., Ex. 39.

Southern continued to communicate with Harroun's physician to attempt to clarify what his restrictions were, whether the doctor felt any accommodations would need to be permanent, and whether Harroun was able to lift twenty-five pounds repeatedly, or only occasionally. At the suggestion of Harroun's physician, in late February 2008 Harroun was referred to a work conditioning program to help him get his back in shape for work. Harroun completed the program and returned to work as a district manager in March 2008. During the time he had been on medical leave, the territories for district managers had been rearranged. Harroun's new territory was different from the one he had managed prior to his move to the warehouse in 2004 and after his return to work from surgery in 2005. His new territory did, however, include some of the regions he had managed before, including the area in which he resided.

In count one of Harroun's complaint, he alleges that his initial move to the warehouse was a demotion and was based on his age, in violation of the ADEA. He also contends that when he was returned to work as a district manager in 2008, he was again discriminated against on the basis of age when he not given his original territory, and that some of his original territory was given to a younger employee. In count two, Harroun alleges that Southern retaliated against him for making a complaint about his transfer to the warehouse, saying that he was further demoted to handing out samples after he filed an age discrimination complaint with the EEOC in April 2005. He further contends that he was ready to return to work after his back injury as early as March 2007 and was cleared for regular work in August 2007 but was unfairly prevented from returning to work until March 2008. He claims that his return to work was delayed in retaliation for his 2005 filing of an age discrimination complaint. Harroun also argues that his transfer to a new territory upon his return in 2008 was retaliation for his earlier complaint of age discrimination. In count three,*fn2 he alleges that Southern delayed his return to work in 2008 because it regarded him as disabled and discriminated against him on the basis of that perceived disability in violation of the ADA. In all three claims, Harroun also alleges that Southern did not give him a performance review in March 2009 as scheduled, which he says prevented him from applying for promotions.

Southern has moved for summary judgment on all counts. For the reasons stated below, the ...

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