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November 29, 2010


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER After Dale Gittings ("Gittings") injured his knee in a motorcycle accident on August 22, 2005 and underwent several surgeries, he was still unable to perform certain physical aspects of his job as Maintenance Supervisor at Tredegar Film Products-Lake Zurich, LLC ("Tredegar"). On January 27, 2006 Gittings was fired by Tredegar after a company investigation had revealed his attempt to use a corporate relationship with an outside vendor to his personal advantage. Gittings brings this action against Tredegar, Tredegar Corporation and Tredegar Corporation Employee Benefit Plan ("Plan"), alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), the Age Discrimination in Employment Act ("ADEA") and the Employee Retirement Income Security Act ("ERISA").

Tredegar has moved for summary judgment on Gittings' employment claims under Fed. R. Civ. P. ("Rule") 56, and that aspect of the case has been fully briefed. For the reasons explained below, the motion is granted and those claims are dismissed with prejudice. This Court retains jurisdiction, however, over Gittings' ERISA-based complaint against Plan stemming from the denial of his long-term disability claim, which had previously been remanded to Plan for reconsideration and further development of the administrative record.*fn1

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing*fn2 the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But a non-movant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and "must come forward with specific facts demonstrating that there is a genuine issue for trial" (id.).

Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is a summary of the facts,*fn3 viewed of course in the light most favorable to non-movant Gittings.*fn4

Factual Background

In 1972 Gittings began working for Tredegar's predecessor firm as a technician in its Lake Zurich, Illinois plastic manufacturing plant (G. St. ¶1). On May 1, 2005 Gittings was promoted to Maintenance Supervisor (T. St. ¶19). Tredegar's Manufacturing Manager Andy Poole ("Poole") and Plant Engineering Manager Brian Varley ("Varley") were initially satisfied with Gittings' job performance as Maintenance Supervisor (G. St. ¶5).

After the motorcycle accident referred to at the outset of this opinion (T. St. ¶51), Gittings underwent arthroscopic surgery on September 9, 2005 and thereafter received short-term disability benefits (id. ¶51). Gittings went back to work on September 26, 2005, but pain and swelling in his knee soon forced him to return home (G. St. ¶11). On September 30, 2005 Gittings underwent a second procedure to treat an infection, after which he was placed on short-term disability for the next several weeks (T. St. ¶¶54, 55). No one at Tredegar told him that such a medical leave of absence was a problem (id. ¶55).

Gittings had a third procedure on October 12, 2005 to remove infected tissue from his knee (T. St. ¶56). Upon his return to work on November 9, Gittings used a walker and restricted himself to sedentary office work (id. ¶57; G. St. ¶15). On November 29, 2005 Gittings' doctor released him to work eight-hour days with written instructions not to climb any ladders and oral instructions of no lifting and no excessive walking (T. St. ¶59; G. St. ¶15). Gittings then worked eight-hour days, with some vacation mixed in, until his January 27, 2006 termination (T. St. ¶61).

During that period Gittings could not crouch, kneel, climb up stairs, sit for over half an hour without discomfort or walk his dog around the block (T. St. ¶69). Tredegar accommodated Gittings by providing him with a designated parking spot closer to the building, by having someone bring him his mail, by having someone perform the physical duties of his job and by permitting him to work light duty in his office (id. ¶62). Gittings admits that he made no request during that time frame that Tredegar did not accommodate, nor did he perceive any animosity toward him on account of his work restrictions or the accommodations (id. ¶63). Nonetheless Gittings says that he discussed certain accommodations with Varley that were never put into effect, including the use of the freight elevator and the availability of a golf cart to drive around the plant floor (G. St. ¶20).

On January 17, 2006 Gittings told Varley that he planned to undergo a knee replacement operation (G. St. ¶16). Gittings believes that Varley gave him a look in response signifying displeasure, but he admits that Varley did not say anything to that effect (T. St. ¶65). After that conversation Gittings felt that Varley gave him the "cold shoulder" (G. St. ¶17). Varley also closed out three of Gittings' completed maintenance projects, which was the first time in Gittings' tenure at Tredegar that he did not personally close out his own projects (id.). Gittings was terminated just ten days later -- on January 27 (T. St. ¶46).

Tredegar's stated reason for the termination relates to events that began in late October 2005, about two months after Gittings' accident. Part of Gittings' duties was to order supplies from vendors, and one of those vendors was W.W. Grainger ("Grainger") (T. St. ¶21). While recuperating at home from his injury Gittings placed an order on Grainger's website through his own personal business for a part for his home furnace (G. St. ¶22). When the part was not delivered on time, he called Grainger to complain, and Grainger representative Al Lazzara ("Lazarra") told him that the order was not processed because Grainger could not verify his personal business (T. St. ¶23).

There is a significant dispute over what Gittings said during that phone call. Gittings maintains that he told Lazzara to cancel his order and also to cancel his personal account, but not Tredegar's corporate accounts (G. St. ¶¶24, 25). Lazzara, for his part, says that Gittings told him to cancel not only his personal account but also the Tredegar accounts (T. St. ¶25). Lazzara testified that when he said that Gittings did not have authority to cancel Tredegar's accounts, Gittings became even more upset and hung up (id. ¶27).

Lazzara relayed the conversation to his supervisor, who in turn got in touch with Tredegar's Purchasing Coordinator Carol Gillespie ("Gillespie") to inquire whether all Tredegar accounts should indeed be canceled (T. St. ¶¶28, 29). Poole got word of the situation from Gillespie and arranged a conference call between Tredegar and Grainger representatives, during which Lazzara reiterated his position that Gittings had become irate and instructed him to cancel all the Tredegar accounts (id. ¶30, 31). Poole then spoke with Phil Rapp ("Rapp"), Tredegar Film's Human Resources Manager based in Virginia, and they decided that Gittings should be asked to provide a statement describing what had happened (id. ¶33).

Gittings wrote in his statement that he "was very upset at this time and asked the representative to cancel the order, refund my credit card, and cancel my account with Grainger ... " (T. App. Tab D24). Gittings also provided a follow-up statement to clarify that he had not attempted to use a Tredegar credit card to make what was a personal purchase (T. St. ¶39).

Poole then spoke again with Lazarra and his supervisor, and he came away from that phone call convinced that Lazarra's description of the call was accurate (id. ¶41). Poole also spoke separately with Lazarra's supervisor, who told him that Lazarra was held in high esteem at Grainger (id. ¶42). Poole then summarized his findings in an e-mail to Rapp and to Tredegar Film's Director of Operations Mike Jaros ("Jaros") in Virginia (id. ¶44). Poole recommended terminating Gittings for attempting to cancel Tredegar's corporate accounts and for being less than forthright in the ensuing investigation--actions that Poole believed amounted to violations of Tredegar's Code of Conduct (id.).

At a January 18, 2006 meeting Poole, Feuerbacher, Rapp and Jaros decided to terminate Gittings' employment (T. St. ¶45). As indicated earlier, Feuerbacher and Varley informed Gittings of that decision on January 27 (id. ¶46). At that time Gittings was given a letter signed by Poole explaining that the reason for termination was "lack of candor during the investigation and reluctance to accept responsibility for your actions . . ." (id.; T. App. Tab D26). Poole's letter went on to state, "I no longer have confidence in your ability to make purchasing decisions in the best interests of the Company" (id.). Gittings was also given a standard form entitled "Employee Declaration of No Pending Disability Claims," which he refused to sign (T. St. ¶47.) Gittings' position of Maintenance Supervisor was filled by Steve Lyons, who is three years younger than Gittings (id. ¶48; G. App. Ex. 18).

Gittings applied for long-term disability benefits in June 2006 from Tredegar's Plan Administrator, Sun Life Assurance Company of Canada ("Sun Life") (G. St. ¶39). Tredegar, in completing the employer's statement for disability benefits, denied that it had knowledge of Gittings' disability at the time of termination and omitted certain attendance records for periods in which Gittings had taken medical leave (id.). Plan denied Gittings' claim on July 25, 2006 and again on March 2, 2007 following Gittings' appeal (Admin. R. 155-56, 210-13, found at Dkt. No. 52).

In November 2006 Gittings applied for Social Security Disability Insurance ("SS Disability") benefits from the Social Security Administration ("SSA") (T. St. ΒΆ73). SSA awarded Gittings those ...

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