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Laporte v. Bureau Veritas North America, Inc.

United States District Court, N.D. Illinois, Eastern Division

January 30, 2015

GEORGE LAPORTE, Plaintiff,
v.
BUREAU VERITAS NORTH AMERICA, INC., Defendant.

MEMORANDUM OPINION AND ORDER

GEORGE M. MAROVICH, District Judge.

After his employment was terminated, plaintiff George LaPorte ("LaPorte") filed a four-count complaint against defendant Bureau Veritas North America, Inc. ("Bureau Veritas"). In Counts I and II, respectively, LaPorte claims that defendant failed to provide a reasonable accommodation and discharged him due to his disability, both in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. In Count III, LaPorte claims that defendant violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., by discharging him in retaliation for his having taken a leave under the FMLA. Finally, in Count IV, LaPorte alleges that defendant discharged him due to his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.

Defendant has filed a motion for summary judgment on each of plaintiff's claims. Plaintiff has filed a motion for partial summary judgment with respect to Counts I and III. For the reasons set forth below, the Court grants defendant's motion for summary judgment. The Court denies plaintiff's motion for summary judgment.

I. Background

The following facts are undisputed unless otherwise noted.[1]

Plaintiff LaPorte is an ergonomist, which is to say his specialty is posture and the analysis of workplace body stressors. LaPorte started working for defendant Bureau Veritas in 2005, when Bureau Veritas purchased the company for whom LaPorte worked. At the time, LaPorte was about 49 years of age (he was born in 1956). Bureau Veritas provides safety consulting, testing and certification services for its various clients. Among Bureau Veritas's services is ergonomics consulting, LaPorte's specialty.

At Bureau Veritas, LaPorte was a valued employee. During his time there, LaPorte was promoted to Ergonomics Manager and then to Senior Project Manager Ergonomics.

LaPorte's duties as an ergonomist included traveling to clients' worksites, performing evaluations of clients' physical equipment, evaluating the interactions of the clients' employees with that equipment, and developing plans to reduce stress caused by repetitive motions. To perform this "field work, " LaPorte used various ergonomics tools. Among them were a two-pound camcorder, a four-pound grip-strength tester and a four-pound Force Meter. Together, LaPorte's ergonomic tools weighed less than 25 pounds. LaPorte transported his tools in a wheeled bag. In addition to field work, LaPorte was also responsible for drafting reports and assessments related to his field work and for reviewing reports and billing by ergonomic subcontractors. As a Senior Project Manager, LaPorte performed more office work than he had when he first began his career.

LaPorte reported to the Chicago office in Bureau Veritas's Midwest Region (one of its five regions in the United States). He was the only ergonomist in the Midwest Region, though, at the time, Bureau Veritas employed five full-time ergonomists in the entire United States. LaPorte reported to Regional Manager Jeff McCombs ("McCombs"). McCombs, in turn, reported to Russ Chadwick ("Chadwick"), the Director of the Chicago Regional Office. Chadwick, in turn, reported to Jeff Milosch ("Milosch"), the Vice President of the Midwest Region. Each of these men is over the age of fifty.

The fact that LaPorte reported to the Chicago office did not mean that all of LaPorte's field work was in defendant's Midwest Region. Although Bureau Veritas had a policy of assigning the nearest ergonomist to a project, Bureau Veritas might send a more distant ergonomist under certain circumstances. For example, if the nearest ergonomist had a full calendar (the ergonomists could see each other's calendars electronically) and Bureau Veritas could not reschedule the work, Bureau Veritas might send a different ergonomist. Still, Bureau Veritas recorded revenues for an ergonomist's work to the region at which he was based, not to the region where the project was located. LaPorte traveled extensively for his job. In 2010, LaPorte traveled to Florida, Canada, New York, Pennsylvania, Texas and Iowa. Most of LaPorte's work was performed outside of the office. LaPorte visited the Chicago office only about three times per year.

Bureau Veritas categorized its clients as either regional (those who contracted for a project in one location or region) or national (those who contracted for ergonomics work throughout the nation). In 2010, LaPorte worked on several national accounts, including Cardinal Health, Carefusion, Baxter, Boeing, Schwab and Harris Bank. For Harris Bank and Schwab, LaPorte was responsible for reviewing the account billing, because, for those clients, Bureau Veritas used contractors to perform the field work. LaPorte also reviewed the ergonomics reports written by the contractors.

The events which led to this lawsuit began in October 2010, when LaPorte requested permission from McCombs (his immediate supervisor) to work remotely from Buffalo, New York. The reason LaPorte wished to work remotely from Buffalo was his father's poor health, and Bureau Veritas granted the request. LaPorte told McCombs that he wished to remain as "billable" as possible while working from New York. For several months, LaPorte worked from New York.

Soon, LaPorte needed time off for his own health problem. In December 2010, while exiting a hot tub in his hotel, LaPorte slipped and injured his rotator cuff. LaPorte selected Dr. Marc Fineberg ("Dr. Fineberg") as his physician to oversee his medical treatment (which involved surgery) and recovery. As a result of the injury, LaPorte was unable to work. By December 20, 2010, LaPorte had informed McCombs that he would need a leave of absence. On December 23, 2010, Bureau Veritas received by facsimile a copy of LaPorte's "Certification of Health Care Provider, " which Dr. Fineberg had filled out and which notified Bureau Veritas that, as of December 13, 2010, LaPorte had become fully disabled and, thus, unavailable for work.

On December 27, 2010, Bureau Veritas informed LaPorte that his twelve weeks of protected leave under the Family and Medical Leave Act started on (Monday) December 13, 2010. Because LaPorte was considered totally temporarily disabled, he received income-replacement benefits from an insurance policy paid for by Bureau Veritas.

LaPorte was in contact with Bureau Veritas during his FMLA leave. For example, on February 4, 2011, LaPorte sent an email to McCombs, in which email LaPorte stated that he was scheduled to speak at a conference on March 2, that he would probably not be back to work by then and that Bureau Veritas should probably find a replacement. By February 22, 2011, McCombs informed LaPorte that he had found someone else to present and asked LaPorte to send him "the material you were going to present." On February 10, 2011, LaPorte forwarded to Milosch an email he received from a client about scheduling work. On February 15, 2011, McCombs told LaPorte by email, "We will be glad when you are back."

LaPorte's twelve weeks of FMLA leave ended Sunday, March 6, 2010, but he was not able to return to work on March 7, 2010. Bureau Veritas did not terminate LaPorte's employment at that time. LaPorte asked for additional time off to heal, and Bureau Veritas granted the request.

On March 10, 2011, LaPorte wrote McCombs an email. In the email, LaPorte wrote:

Jeff, per our discussion today, my surgeon will probable [sic] allow me to return to work the end of March, however I would be restricted to OFFICE TYPE WORK ONLY (computer, phone, report review, etc.), NO FIELD WORK which requires traveling, lifting, pushing, pulling, etc. I do not know when he will release me to conduct field work, but would think he would by the beginning or middle of May.
Please let me know if BV can accommodate these restrictions, or if I need to wait until he releases me to conduct field work.

Also on March 10, LaPorte informed McCombs by email that he did not think he would be able to return in time to speak at a conference on March 31, 2011. McCombs asked LaPorte to inform the conference that he would need to be replaced.

The end of March arrived, and LaPorte was still unable to return to work. On March 21, 2011, Dr. Fineberg sent to Bureau Veritas by facsimile an update on LaPorte's condition. Dr. Fineberg did not release LaPorte to perform office or field work. Dr. Fineberg stated, "He will continue physical therapy emphasizing rotator cuff strengthening and range of motion and return for followup to check his progress in approximately 1 month. Consider light duty at that time." Dr. Fineberg's assessment was an accurate depiction of LaPorte's medical status. On March 22, 2011, LaPorte sent McCombs an email, in which he stated:

I had a follow-up visit with my surgeon yesterday. Unfortunately, he did not release me to return to work with restrictions. I had his office fax the visit results to Kim Pelt (per her request).
He is happy with my progress to date, but doesn't want me to work 8 hours a day, even office type work only (computer, phone, report review, etc.) at this point. He felt that by the end of April he would release me to conduct office type work only. We will have to determine what would be available for me to do when we get to that point, or if I will need to wait until he releases me to conduct field work.
As far as conducting field work which requires traveling, lifting, pushing, pulling, etc., he estimates that he would not release me to conduct that type of work until the end of June, at the earliest with some restrictions. I had hoped that he would release me sooner, but he stated that would be ...

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