United States District Court, C.D. Illinois, Rock Island Division
SARA DARROW, District Judge.
Plaintiff Harold ODeen alleges that he was fired from his job at Defendant Centro, Inc., ("Centro") because of his status as a disabled veteran. Before the Court are Centro's Motion for Partial Summary Judgment, ECF No. 13, Motion for Sanctions, ECF No. 24, and Motion for Summary Judgment, ECF No. 32. For the reasons set forth below, the Motion for Partial Summary Judgment is GRANTED, and the Motion for Sanctions is GRANTED IN PART and DENIED IN PART. ODeen did not respond to the Motion for Summary Judgment, so pursuant to Local Rule 7.1(D), that motion is deemed admitted; for that reason and because it is adequately supported, the Motion for Summary Judgment is granted. All requests for oral argument are DENIED.
On August 10, 2012, ODeen sued his former employer, Centro, alleging that Centro discriminated against him by terminating his employment and not accommodating his shoulder injury, and that Centro violated the Uniformed Services Employment and Reemployment Act of 1994 ("USERRA"), 38 U.S.C. § 4301 et seq.
Centro is a custom rotational molder of plastic products. Rotational molding is a specialized plastics process that produces sturdy, hollow parts; powdered resin is poured into molds, heated in an oven, and cooled. Centro hired ODeen on February 4, 2008, to work as a Product Inspector/Finisher. Product Inspector/Finishers, as the name suggests, finish, inspect, and prepare the parts for shipment. ODeen was promoted to Assistant Machine Operator and then Machine Operator at Centro's East Moline manufacturing facility. Both jobs involve loading and unloading the molds, and as Machine Operator, ODeen was also tasked with operating the rotational molding machinery.
ODeen joined the National Guard in 2006. In August, 2008, Centro granted ODeen leave to serve in Afghanistan. ODeen injured his shoulder while serving in Afghanistan. He returned to work as a Machine Operator at Centro on September 20, 2009. ODeen did not inform Centro of his injury at that time, and he did not request an accommodation. On February 24, 2011, ODeen complained of shoulder pain to Centro's Operations Manager, Kevin McMichael, who allowed ODeen to drive a forklift that day. ODeen did not characterize his shoulder injury as a disability resulting from his military service. Centro's Corporate Human Resources Leader, Rhonda Griffin, also learned of ODeen's shoulder problems on February 24, 2011. Griffin states that "at no time during his employment with Centro" did ODeen inform her "that he was injured during his deployment to Afghanistan." Griffin Aff. ¶ 27, ECF No. 33-1. Over the next couple of months, ODeen took some time off to undergo physical therapy for his shoulder-some of which was taken under the Family and Medical Leave Act-and informed McMichael that if his doctor determined his shoulder needed surgery, the recovery time would be three to six months. McMichael informed ODeen that Centro's policy was that he would not be allowed to return to work until he was cleared of all restrictions. ODeen provided an Essential Functions form from his doctor to Centro on April 7, 2011, which indicated that ODeen could perform the essential functions of the Machine Operator job, so ODeen briefly returned to work from April 22, 2011 until April 26, 2011, when he left work after complaining of a shoulder flare-up. On April 27, ODeen provided another Essential Functions form from his doctor, which stated that he could not perform the essential functions of the Machine Operator job and that ODeen had no use of his right arm at that time. On May 2, 2011, ODeen told Brian McNeal, the Business Process Owner at the East Moline facility, that he was scheduled for shoulder surgery on May 9, 2011. He told McNeal that if things went well, he would need four to eight weeks to recover, but might need more time if the doctor found "something more major." During his employment at Centro, ODeen never informed McNeal that he was disabled during his deployment to Afghanistan, nor did he request an accommodation due to an injury he received during his deployment to Afghanistan. ODeen did not ask McMichael to place him in a Product Inspector/Finisher position in advance of his shoulder surgery.
On May 4, 2011, ODeen's FMLA protection ran out. Centro terminated ODeen's employment on May 5, 2011, because he was unable to perform the essential functions of any positions which Centro had open and for which ODeen was qualified. ODeen admits that he could not perform the essential functions of his job as a Machine Operator. Centro specifically determined that ODeen could not perform the essential functions of a Product Inspector/Finisher position, either, which ODeen admits requires use of the right arm. ODeen admits that he never provided anyone at Centro with his Veteran's Administration (VA) disability form until after he filed his EEOC complaint.
On July 3, 2011, ODeen lodged a charge of disability discrimination in violation of the Americans with Disabilities Act with the EEOC. The EEOC mailed a notice of right to sue to ODeen on April 27, 2012, and his complaint was filed 105 days later. Pl.'s Am. Resistance to Mot. Partial Summ. J. 1, ECF No. 22-1. ODeen states in an affidavit that the earliest he could have received the Notice of Right to Sue was on May 14, 2012, 88 days before he filed his complaint, but that he cannot remember the specific date he received it. ODeen Aff. ¶¶ 5, 7, ECF No. 14. Centro offers a handwritten note from an EEOC investigator, summarizing a conversation with ODeen on April 21, 2012, which states that the investigator explained, "he will receive findings via certified mail." Def.'s Reply to Resistance to Mot. Partial Summ. J. Ex. 5, ECF No. 18-1.
Centro served ODeen with Interrogatories and a Request for Production of Documents on December 20, 2012. Mem. in Supp. Mot. Sanctions 2, ECF No. 25. On January 7, 2013, at the request of ODeen's counsel, Centro's counsel agreed to an informal extension of time to provide responses to the interrogatories and document request. Id. Centro's counsel also asked for (but did not receive) a new date to expect the responses. Id. On January 30, and again on March 4, 2013, Centro's counsel advised ODeen's counsel that his responses were overdue. Id. After some intervening discussions, Centro's counsel sent a letter to ODeen's counsel on April 2, 2013, requesting a response by April 5, 2013. Id. On April 11, 2013, ODeen served Centro with discovery requests. Pl.'s Resp. to Mot. Sanctions ¶ 1, ECF No. 29. On April 16, 2013, ODeen's counsel sent Centro's counsel an email indicating that his client would be providing him with responses on April 19, 2013, which prompted Centro's counsel to ask when she would receive the responses. Mem. in Supp. Mot. Sanctions 2. ODeen's counsel did not respond. Id. On April 19, 2013, Centro's counsel sent a letter to ODeen's counsel requesting responses by April 23, 2013. Id. On April 22, 2013, ODeen's counsel sent Centro's counsel an email stating that he could not get discovery responses to her by the April 23 deadline. Id. at 3. On April 24, 2013, Centro filed a Motion to Compel, ECF No. 16. On May 14, 2013, the Court granted the Motion to Compel and set a new deadline for all outstanding written discovery of May 28, 2013, ECF No. 20. The Court indicated that a "[f]ailure to comply with this Order may result in imposition of sanctions, up to and including entry of default." Id. at 2. ODeen did not meet the May 28, 2013 deadline. Mem. in Supp. Mot. Sanctions 3. On June 10, 2013, ODeen filed incomplete discovery responses. Pl.'s Resp. to Mot. Sanctions ¶ 6.
I. Motion for Partial Summary Judgment
Centro moves for summary judgment on Count I of the Complaint on the theory that it is time-barred. Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). On a motion for summary judgment, the Court will construe all facts and draw all reasonable inferences in favor of the nonmoving party. See Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 948 (7th Cir. 2009). Summary judgment is the "put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (internal quotation marks omitted). A court should grant summary judgment only "if 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). At the summary judgment stage, the judge's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Patel v. Allstate Ins. Co., 105 F.3d 365, 370 (7th Cir. 1997). There can be no genuine issue as to any material fact when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
An action alleging a violation of Title VII must be filed within ninety days after a plaintiff receives notice of his or her right to sue. 42 U.S.C. § 2000e-5(f)(1) ("If the charge filed with the Commission... is dismissed... the Commission... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge..."). This deadline is strict and leaves the Court no leeway to grant slight exceptions. See Guy v. Robbins & Myers, Inc., 429 U.S. 229, 239-40 (1976) ("Congress has already spoken with respect to what it considers acceptable delay when it established a 90-day limitations period... Congress did not leave to courts the decision as to which delays might or might not be "slight."); Jones v. Madison Serv. Corp., 744 F.2d 1309, 1314 (7th Cir. 1984) (holding that the filing of a Title VII lawsuit ninety-two days after receipt of receiving actual notice of right to sue was "untimely").
In general, the ninety-day period begins to run when a plaintiff receives actual notice of the right to sue. Houston v. Sidley & Austin, 185 F.3d 837, 839 (7th Cir. 1999) (citing St. Louis v. Alverno College, 744 F.2d 1314, 1316-17 (7th Cir. 1984)). A plaintiff "should not lose the right to sue because of fortuitous circumstances or events beyond his or her control which delay receipt of the EEOC's notice, " St. Louis, 744 F.2d at 1316, but the actual-notice rule does not apply to plaintiffs who fail to receive actual notice through their own fault, Houston, 185 F.3d at 839. In litigating over whether the plaintiff is at fault for delayed receipt of a notice of the right to sue, the plaintiff will often be "the only person in possession of the facts regarding why [he or ]she had not gotten the letter" sooner. See id. at 840 n.5. In such cases, the ...