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Goode v. American Airlines

September 20, 2010


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

Magistrate Judge Denlow


Plaintiff Richard Goode ("Plaintiff" or "Goode") was discharged by Defendant American Airlines Inc. ("American" or "the Airline") on January 3, 2006. On July 12, 2008, Plaintiff filed a complaint in which he alleges that his dismissal constituted retaliatory discharge for exercising his rights under the Illinois Workers' Compensation Act ("IWCA"), 820 ILCS 305/4(h). After the close of discovery, American filed a motion for summary judgment [25] pursuant to Rule 56 of the Federal Rules of Civil Procedure. At the close of briefing on that motion, Plaintiff also filed a motion for leave to file a sur-reply [43], which the Court grants.*fn1 For the reasons stated below, American's motion for summary judgment [25] also is granted.

I. Background

The Court takes the relevant facts primarily from the parties' Local Rule ("L.R.") 56.1 statements:*fn2 Defendant's L.R. 56.1(a)(3) Statement of Material Facts ("Def. SOF") [27], Plaintiff's Response to Defendant's L.R. 56.1(a)(3) Statement of Material Facts ("Pl. Resp. Def. SOF") [32] and Statement of Additional Facts ("Pl. SOAF") [30], and Defendant's Response to Plaintiff's Statement of Additional Facts (Def. Resp. Pl. SOAF) [38].*fn3

A. Plaintiff's Employment Record at American

Plaintiff began working for American as a Fleet Service Clerk in October 1989. Pl. Resp. Def. SOF ¶ 7. Plaintiff's primary responsibility in this position was handling baggage for the Airline, and he served in that capacity up to the date of his termination. Id. ¶ 9. As a union member, the terms and conditions of his employment were governed by his union's Collective Bargaining Agreement ("CBA") with American as well as the Airline's Rules of Conduct,*fn4 which apply to all employees, including Fleet Service Clerks. Id. ¶ 4, 8. Prior to December 2005, Plaintiff reported suffering fifteen injuries on the job, twelve of which caused him either to work light-duty or take time off from work. Id. ¶ 18-19. Five of these injuries occurred in the five years immediately preceding Plaintiff's December 4, 2005 injury. Pl. SOAF ¶ 10. Plaintiff also was disciplined by American several times during this period, but neither party suggests that Plaintiff's dismissal was in any way related to his disciplinary record. Pl. Resp. Def. SOF ¶ 10-17.

B. The December 4, 2005 Injury

The present claim arises out of a series of events beginning in December 2005 that culminated in Plaintiff's dismissal on January 3, 2006. Pl. SOAF ¶ 1. On December 4, 2005, while he was helping to unload a plane, Plaintiff injured his back in the process of lifting a heavy bag. Def. SOF ¶ 22. Immediately after being injured, Plaintiff reported the incident to his supervisor, who helped Plaintiff complete an online injury form. Id. ¶ 23. Plaintiff's supervisor also gave him a copy of the Ground Employee Injury-on-Duty Information Package ("IOD Package"), which explains to injured employees,

It is your responsibility to accurately convey your physical capabilities to your physician. A completed Physical Capabilities Analysis form (PCAF) is required after your first doctor's visit. You may be requested to provide additional PCAFs during your time away from work due to your injury-on-duty. Once your doctor completes the form, you are responsible to forward it to the AA workers' Compensation Department. Def. SOF ¶ 24.

Under the heading "Assigned Work Restrictions," the Package also instructs the injured employee to "[e]nsure you understand the treating doctor's assigned restrictions and do not exceed them. If asked to perform a task that exceeds your restricts, ask your supervisor to review your restrictions and immediately inform your SRS adjuster." Pl. Resp. Def. SOF ¶ 25. Plaintiff read the IOD Package and signed the last page to indicate that he had done so. Id. ¶ 26.

As part of his IOD Package, Plaintiff also received a blank Physical Capabilities Analysis Form ("PCAF") for his doctor to fill out and return (via fax) to American. Deposition of Richard J. Goode ("Goode Dep.") at 269. The PCAF instructs the doctor, in relevant part, that

The physical capabilities you indicate should closely reflect the capabilities of the employee as he/she conveys them to you. [sic] in addition to any further restrictions imposed by you, as part of the treatment and recovery process. * * * Please provide [American] with the specific physical capabilities, even if it is your intent for the employee to remain off work and continue treatment. Id. Exh. 24.

Below this statement, the form provides space for the doctor to indicate whether or not the employee can return to work and, regardless of that response, specify what physical movement the employee is capable of performing. Id.

C. Dr. Knight's Examination

The following day, on December 5, 2005, Plaintiff visited the Advocate Medical Group at the Nesset Pavilion where he was examined by Dr. Margaret Knight. Pl. Resp. Def. SOF ¶ 27. Although this was Plaintiff's regular doctor's office, he had never met Dr. Knight prior to this occasion. Id. During his examination, Plaintiff gave Dr. Knight the PCAF, which she completed and faxed to American. Id. ¶ 28. Dr. Knight indicated that Plaintiff should not return to work. Id. ¶ 29. She also provided details about Plaintiff's physical capabilities in the appropriate sections. In the first such section, which asks the doctor to "note how long the individual is capable of [sitting, standing, walking, and driving]," Dr. Knight circled zero (0) hours for all four abilities. Goode Dep. Exh. 24. In the second section, which asked her to "check the maximum limit and frequency" that Plaintiff was capable of lifting or carrying, Dr. Knight drew a single line through the boxes corresponding to "never" for each of the five weight categories (the lowest of which is 1-10 lbs). Id. Finally, in the third section, which asked her to check the frequency with which Plaintiff was capable of certain activities, including climbing, "bending/stooping," "pushing/pulling," and "keyboarding," Dr. Knight drew another vertical line indicating that Plaintiff was "never"*fn5 capable of all nine activities. Id.

Neither party disputes the authenticity of this document; rather, they contest two closely related facts: (1) whether or not Dr. Knight showed Plaintiff what she had written on the PCAF (or otherwise instructed Plaintiff that he was not to engage in any of the activities listed on it); and (2) whether or not the doctor's responses on the PCAF amount to a general proscription from all of the listed activities, even when the employee is not on-the-job. Pl. Resp. Def. SOF ¶ 28-32. Plaintiff maintains that Dr. Knight faxed the form to American without showing him what she had written. Id. ¶ 28. In addition, Plaintiff denies that Dr. Knight explained to him at any time that he was not supposed to perform any of the activities listed on the form. Id. ¶ 32. Meanwhile, American has produced a declaration from Dr. Knight stating that it was her intention that the restrictions on the PCAF apply generally -- not just when Plaintiff was at work -- and that Plaintiff had "sustained a severe injury and * * * should generally be bed bound." Declaration of Margaret Knight ¶ 8-9.*fn6 Dr. Knight also stated that it was her "usual practice to review forms with patients and to communicate their restrictions to them to enable them to heal from their injuries," but she also revealed that she could not "specifically recall reviewing the form with Mr. Goode." Id. ¶ 10.

D. American's Communications with Plaintiff and Surveillance of His Activities

Beginning on December 5, 2005, the day of Plaintiff's examination by Dr. Knight, Leslie Crowe, an Injury Manager for American, reviewed Plaintiff's injury report and called her supervisor, Debbie Havens, American's Manager of Lost Time and Security, to recommend that American initiate surveillance on Plaintiff. Pl. SOAF ¶ 11, 16, 17. Crowe later explained that she took this action because "it didn't seem to add up to why [Plaintiff] was completely off work from lifting a bag -- lifting a heavy bag from the floor and placing it on a cart" and that she was concerned "that the employee was lifting a bag, which he does all the time * * * and then his [PCAF] comes back, and he has that he cannot do anything." Id. ¶ 17; Crowe Dep. Tr. at 38:19-40:18.*fn7 Havens followed Crowe's recommendation and authorized surveillance of Plaintiff. Pl. SOAF ¶ 11. The following day, December 6, Crowe spoke with Plaintiff about his injury and assured him that he would not receive any type of discipline or negative attendance notation for missing work and asked him to let her know how he was doing after his next doctor's appointment. Def. SOF ¶ 33.

American's surveillance of Plaintiff began three days after his injury, on December 7, when Patrick Harrington and Don Eichmann, two members of American's Corporate Security Department, witnessed Plaintiff driving from his home to a gas station and then driving away. Id. ¶ 36. Later that week, an investigative company hired by American, Acumen Probe, conducted multiple rounds of surveillance on Plaintiff's apartment on December 10 and 11, but the company's agents did not find Plaintiff's car at his apartment until 10:00 p.m. on December 11.*fn8 Id. ¶ 37. On December 12, Harrington and Eichman again tracked Plaintiff and saw him drive into his apartment parking lot and exit his car carrying a plastic bag. Id. ¶ 38.

Plaintiff visited Dr. Knight for a second appointment on December 13, but no new PCAF was completed until December 19. This time, Dr. Knight noted that while Plaintiff was still unable to return to work, he was capable of driving, sitting, standing, and walking eight hours per day. Pl. Resp. Def. SOF ¶ 40; Pl. SOAF ¶ 24; Crowe Affidavit Exh. 3. On December 14, an Acumen Probe investigator saw Plaintiff leave his apartment, place a bag in his car, and drive away at 11:00 a.m. without returning until 3:30 p.m. Def. SOF ¶ 39. On December 16, Plaintiff again spoke with Crowe and reported that he was doing virtually nothing other than watching television and playing on his computer. Id. ¶ 34. Plaintiff also reported to Crowe that he was sleeping on the floor because his back was in so much pain. Id. In a final conversation with Crowe on December 20, Plaintiff reported that he was "now driving," a statement he admits may have created the impression that there was a period of time prior to this date when he was not driving. Id. ¶ 35. Finally, on December 26, an Acumen Probe investigator saw Plaintiff drive from his apartment to a gas station, although by this time it is clear that this activity fell within the capabilities listed on Plaintiff's second PCAF. Id. ¶ 40.

E. Plaintiff's 29F Conference and Termination

On January 3, 2006, Plaintiff attended a 29F*fn9 disciplinary conference along with two union representatives and two American employees: Debbie Havens, American's Manager of Lost Time, and Fred Vertrees from Human Resources Operations Support. Def. SOF ¶ 41. After reading Rule 16, American's rule prohibiting misrepresentation of facts, Vertrees launched an extensive period of questioning in which he pressed Plaintiff on the activities he had done in the period following his injury. American and Plaintiff offer materially different descriptions of Plaintiff's behavior during the conference. See, e.g. Pl. Resp. Def. SOF ¶ 46. Plaintiff claims that his "story" did not change during the course of the conference; instead, he claims that he disclosed to American all of the driving that he had done during the time that he was absent from work (Pl. Resp. Def. SOF ¶ 44-52) and that American's argument boils down to an assertion that Plaintiff did not tell the truth fast enough. Meanwhile, American asserts that Plaintiff's story about his activities changed as he was being questioned and that his initial statements violated the company's rules against misrepresentation. Def. SOF ¶ 53-56.

Havens's notes from the meeting provide the Court with an uncontested record of Plaintiff's interrogation. See Goode Dep. Exh. 26. Due to the importance of the examination at the Rule 29F conference to the Court's resolution of the issues in this case, the Court quotes extensively from the relevant parts of those notes, especially those sections in which Plaintiff responded to questions about his restrictions:

[In the notes, "F.V." refers to Fred Vertrees while "R.G." refers to Richard Goode.] * * * FV: Going back to the beginning of December * * * you reported an injury on 12/4?

RG: Right.

FV: To your lower back?

RG: Yes. Working the Caadian BTP CTXmachine. It was a Turkish Air bag and was too heavy. When I went to lift it, I hurt my back.

FV: Did you know the bag was heavy?

RG: There was a heavy tag on it. I tested it, but it just got to me.

FV: According to my notes you have injured yourself on other occasions, with at least 5 injuries in the last 5 years, and in fact 3 times now to the lower back. You had a lower back injury earlier this year. Why wouldn't you ask for help?

RG: We lift heavy bags all he time. It might be heavy for Kevin or Dwight, but not for me. * * * FV: What were your restrictions for this week between December 5th and 13th?

RG: Nothing. No lifting, no climbing, just relax for a couple of weeks. On the form there was no nothing.

FV: No driving?

RG: I could drive.

FV: Did the Dr. tell you you could drive?

RG: She didn't say I couldn't.

(Fred shows [Goode] the PCAF form)

RG: No -- there it says no driving.

So there it says not driving anytime?

RG: Right[.]

FV: Why did the Dr. give you those restrictions?

RG: Because I was in a lot of pain.

FV: Did you adhere to those restrictions while you were out? RG: Yes I did.

FV: You didn't do any driving?

RG: Yes, because I didn't see this. The Dr. faxed it over. I didn't look at it when the Dr. filled it out.

FV: You walked out of there not knowing your restrictions? In the packet, you signed the report that it's your responsibility to know your restrictions.

RG: Yes.

FV: Describe what kind of driving you did -- at least during the first week.

RG: I really don't think that I did any. To be honest, I just remember watching

Satellite TV at that time.

FV: Do you want to think about it some more?

RG: I can't remember -- maybe to the grocery store or to pay a couple of bills. FV: How long were you driving?

RG: Maybe 15 minutes. * * * FV: Anywhere else?

RG: No.

FV: Did you visit any ...

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