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Tucher v. Key Bank N.A.

United States District Court, S.D. Indiana, Indianapolis Division

February 6, 2014

ANTHONY R. TUCHER, Plaintiff,
v.
KEY BANK N.A., Defendant.

Michael E. Boring, BORING & ASSOCIATES, P.C., New Palestine, IN, Counsel for Plaintiff.

ORDER

JANE MAGNUS-STINSON, District Judge.

Plaintiff Anthony R. Tucher brings this discrimination suit against his former employer Defendant Key Bank N.A. ("Key Bank"), alleging violations of the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act. [Dkt. 1.] Currently pending before the Court is Key Bank's Motion for Summary Judgment. [Dkt. 46.] For the reasons that follow, the Court GRANTS Key Bank's Motion for Summary Judgment.

I.

PROCEDURAL STANDARDS AND COMPLIANCE

A. Summary Judgment Standard of Review

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, " Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

B. Mr. Tucher's Failure to Comply with the Federal and Local Rules

Before setting forth the factual background, the Court must first address several issues regarding Mr. Tucher's briefing and compliance with the Federal and Local Rules.

First and foremost among them is Mr. Tucher's failure to include in his response brief the "Statement of Material Facts in Dispute" section required by Local Rule 56-1(b). See Local Rule 56-1(b) ("The response must include a section labeled Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment."). Instead of including this section, Mr. Tucher includes a section entitled "Statement of Material Facts Not in Dispute, " which is simply a factual background section of his brief. [Dkt. 57 at 2 (emphasis added).] In other words, Mr. Tucher does not even attempt to identify as such the determinative facts and factual disputes precluding summary judgment, as is explicitly required Local Rule 56-1(b).

The consequence of Mr. Tucher's failure is that he concedes Key Bank's version of events. See Smith v. Lanz, 321 F.3d 680, 683 (7th Cir. 2003) ("[F]ailure to respond by the nonmovant as mandated by the local rules results in an admission."); see also Wackett v. City of Beaver Dam, 642 F.3d 578, 582 n.1 (7th Cir. 2011). The Court continues to apply the above articulated summary judgment standard, but Mr. Tucher's failure to comply with the Local Rules "reduc[es] the pool" from which the facts and inferences may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997). The Seventh Circuit has "repeatedly upheld the strict enforcement of these rules, sustaining the entry of summary judgment when the non-movant has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded the movant's version of the facts." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). Indeed, although the Court will not rest its decision solely on Mr. Tucher's failure to comply with the Federal and Local Rules, this failure, in conjunction with his numerous other failures detailed below, provide the Court an independent basis to grant summary judgment to Key Bank. See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994) ("The factual statement required by Local Rule 56.1 is not a mere formality. It follows from the obligation imposed by Fed.R.Civ.P. 56(e) on the party opposing summary judgment to identify specific facts that establish a genuine issue for trial, and it substantially facilitates the district court's task in deciding whether a trial is indeed necessary. [The plaintiff's] failure to comply with the local rule was, accordingly, not a harmless technicality, but a mistake that our precedents (for good reason) have deemed fatal.").

Unfortunately, Mr. Tucher's failure to include a "Statement of Material Facts in Dispute" section is but the first of many deficiencies with his brief, the rest of which were exhaustively (and helpfully) cataloged by Key Bank. [Dkt. 64 at 2-13.] The Court highlights many of these deficiencies here so as to further demonstrate that the pool of evidence the Court may properly consider when deciding this motion is even further reduced. In the end, Mr. Tucher is left with very little admissible evidence supporting his claims.

As a general matter, Mr. Tucher rarely points to record evidence supporting his factual assertions as in the manner prescribed by the Federal and Local Rules. See Fed.R.Civ.P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record....") (emphasis added); Fed.R.Civ.P. 56(c)(3) ("The court need consider only the cited materials...."); Local Rule 56-1(e) ("A party must support each fact the party asserts in a brief with a citation to a discovery response, a deposition, an affidavit, or other admissible evidence. The evidence must be in the record or in an appendix to the brief. The citation must refer to a page or paragraph number or otherwise similarly specify where the relevant information can be found in the supporting evidence."). Specifically, Mr. Tucher violated these rules by: (1) failing to even attempt to cite evidence following many assertions of fact; (2) citing excerpts from his deposition that are not part of the record; (3) citing portions of his deposition that in no way support the assertion of fact made in his brief; and (4) citing entire lengthy documents without referring to "a page or paragraph number or otherwise similarly specify[ing] where the relevant information can be found in the supporting evidence, " Local Rule 56-1(e).

Furthermore, as Key Bank points out, Mr. Tucher relies on his own hearsay statements from his deposition to advance his claims. Hearsay is "a statement that... a party offers in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c)(2). "And hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial, except that affidavits and depositions, which (especially affidavits) are not generally admissible at trial, are admissible in summary judgment proceedings to establish the truth of what is attested or deposed, provided, of course, that the affiant's or deponent's testimony would be admissible if he were testifying live." Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997); see MMG Fin. Corp. v. Midwest Amusements Parks, LLC, 630 F.3d 651, 656 (7th Cir. 2011) ("A party may not rely on inadmissible hearsay to avoid summary judgment."). Mr. Tucher's deposition testimony that (1) his doctor advised him to pursue a job with Key Bank more seriously; (2) his doctor ordered him to lower his stress level due to his recent heart attack; and (3) his doctor advised him to take a leave of absence from work, [ see, e.g., dkt. 58 at 13], are all hearsay statements of Mr. Tucher's doctor that cannot be considered to prove the truth of the matter asserted.

Despite the fact that "[a] party must support each fact the party asserts in a brief with citation to... admissible evidence, " Local Rule 56-1(e) (emphasis added), the entire argument section of Mr. Tucher's brief-which spans eight pages-contains five citations to the record, [ see dkt. 57 at 6-13]. Worse still, two of these citations are to deposition excerpts that he failed to submit with into evidence. [ See id. at 8.] This leaves the entire argument section of his brief with only three citations to admissible evidence. Such a brief is inexcusable; it is detrimental to both Mr. Tucher's case and the Court's decisional process. Based on the foregoing, the Court will not consider Mr. Tucher's assertions of fact accompanied only by inadmissible hearsay or one of the four improper briefing techniques detailed above. This leaves very little evidence for the Court to consider, as it would be difficult to overstate Mr. Tucher's failure to comply with the rules.

Although the Court is under no obligation to do so, it will consider the evidence to which Mr. Tucher properly cites in his section entitled "Statement of Material Facts Not in Dispute" and attempt to link it to his arguments. To facilitate this process, the Court created as an exhibit to this Order a copy of Mr. Tucher's brief, wherein the Court crossed out all factual assertions involving one of the four types of violations of the Federal and Local Rules set forth above or those accompanied only by citations to inadmissible hearsay. As demonstrated by the Court's exhibit, excluding background facts that have no bearing on Mr. Tucher's claims, he is left with the following factual assertions supporting his claims:

• Mr. Tucher returned to Key Bank from his leave of absence with a doctor's note limiting him to forty hours of work per week. Mr. Bontreger stated that the note "doesn't say you can return to work full-time, " which Mr. Tucher interpreted to mean that he needed to work more than forty hours per week. [Dkt. 57 at 3 (citing dkt. 59 at 1, 2).][1]
• Although Ms. Hampton attested that she instructed Mr. Tucher to not stay at the bank branch after hours, Mr. Tucher testified that Ms. Hampton merely discouraged him from doing so. Further, he testified that it was necessary to stay after hours to complete his work. [ Id. at 5 (citing dkt. 49-1 at 28).]
• Mr. Earley treated other Key Bank branch managers move favorably than Mr. Tucher- e.g., Kelly Gerling was allowed to arrive late to work while Mr. Tucher was not. [ Id. (citing dkt. 49-1 at 37-40).] Moreover, all employees at Mr. Tucher's branch except Mr. Tucher received a performance-based raise in 2009 and 2010; he instead received a bonus. [ Id. at 5-6 (citing dkt. 59 at 9).] Finally, another Key Bank branch manager, Gary Guevitz, was over the age of sixty and also terminated by Key Bank. [ Id. at 6 (citing dkt. 59 at 15-16).]
• After Ms. Hampton placed Mr. Tucher on the Final Level PIP and provided him with the Exit Agreement, he provided her with a doctor's note and told her he needed to be placed on leave. [ Id. at 6 (citing dkt. 59 at 1).]
• Mr. Tucher denies ever making a racially offensive comment and denies any incident involving a coworker's water bottle. [ Id. (citing dkt. 56 at 4).]

In sum, Mr. Tucher's glaring failures to comply with the Federal and Local Rules have consequences. In deciding Key Bank's Motion for Summary Judgment, the Court will only consider these factual assertions, as they are the only ones supported by citations to admissible record evidence in accordance with the Federal and Local Rules. Given the small universe of facts that can be considered in assessing Mr. Tucher's claims, it is perhaps unsurprising that he produced insufficient evidence to avoid summary judgment in Key Bank's favor.

II.

BACKGROUND

In deciding a motion for summary judgment, the Court typically draws the factual background from the undisputed evidence and, if certain evidence is disputed, views that evidence in the light most favorable to the non-moving party. The Court follows that practice here; but as discussed in detail in subsection I.B above, Mr. Tucher's brief utterly fails to comply with the briefing and evidentiary procedures mandated by the Federal and Local Rules. Once the Court cuts through his missteps in this regard, very few of his factual assertions bearing on his claims may actually be considered by the Court in deciding this motion. Therefore, the Court draws the factual background primarily from the evidence that remains-namely, the undisputed evidence submitted by Key Bank-and supplements it with the few pieces of relevant admissible evidence to which Mr. Tucher directs the Court.

Mr. Tucher applied for employment with Key Bank in April 2009. [Dkt. 49-1 at 7.] Lisa Hampton, Key Bank's Area Retail Leader, scheduled an interview with Mr. Tucher, but offered to reschedule the interview after Mr. Tucher informed her that he suffered a heart attack. [Dkt. 48-2 at 2.] After two rounds of interviews, Key Bank offered Mr. Tucher the position of Key Center Manager ("KCM"), and he accepted the position in June 2009. [ Id. ] As a KCM, Mr. Tucher was ultimately responsible for an entire Key Bank branch. [Dkt. 49-1 at 11.]

Initially, Ms. Hampton was Mr. Tucher's immediate supervisor. [ Id. at 13.] From June 2009 to April 2010, Ms. Hampton observed several deficiencies in Mr. Tucher's job performance, including his failure to report to work on time, properly document client leads, and update his calendar (despite frequent requests by Ms. Hampton for him to do so). [Dkt. 48-2 at 3.] In short, Ms. Hampton felt that Mr. Tucher's job performance declined during this period. [ Id. ] Furthermore, Ms. Hampton attests that she repeatedly instructed Mr. Tucher not to work at the branch after hours, but Mr. Tucher testified that she merely discouraged him from doing so and that he needed to stay after hours to complete his work. [Dkt. 49-1 at 28.]

Around April 2010, Brian Earley became Mr. Tucher's immediate supervisor. [ Id. at 13.] Mr. Tucher took a medical leave of absence from May to June 2010, after which he returned to Key Bank with a doctor's note limiting him to forty hours of work per week. [Dkt. 59 at 2.] Mr. Tucher showed Nick Bontreger, Key Bank's District Retail Leader, the doctor's note, to which he responded that "this doesn't say you can return to work full-time." [ Id. ] Mr. Tucher interpreted this statement as an indication that he needed to work more than forty hours a week. [ Id. ]

Subsequently, Mr. Tucher's poor job performance continued, and on at least four occasions, Mr. Earley attempted to work with Mr. Tucher to improve his performance. [Dkt. 48-5 at 3.] Despite this, Mr. Tucher continued to have "attendance issues, " as he was often not in the office and none of the staff at his branch knew of his whereabouts. [ Id. ] Mr. Earley placed Mr. Tucher on a First Level Performance Improvement Plan ("PIP") on January 7, 2011. [ Id. ; dkt. 49-1 at 84-85.] The First Level PIP highlighted that Mr. Tucher was not meeting any of his six numerical performance goals ( e.g., his "deposit production" was only 20% of the goal). [Dkt. 49-1 at 85.] It concluded by stating, "It is critical that [Mr. Tucher] make a significant and sustained improvement in his performance to the areas outlined, " and warned that failure to do so could result in a Second Level PIP or termination. [ Id. at 85-86.] Mr. Tucher signed the First Level PIP and stated that he would present comments to human resources at a later date, but never did. [Dkt. 49-2 at 4.]

Mr. Earley did not believe Mr. Tucher's performance subsequently improved, and thus recommended a Second Level PIP. [Dkt. 48-5 at 4.] Mr. Tucher was presented with a Second Level PIP on March 16, 2011, but did not sign it. [Dkts. 49-1 at 88-91; 49-2 at 4.] Approximately one month later, on April 11, Mr. Tucher filed an Open Door Dispute ("ODD"), which is a method by which a Key Bank employee can make a formal complaint to the company. [Dkt 49-1 at 92-107.] In his ODD, Mr. Tucher stated, among other things, that he wanted his Second Level PIP cancelled because his performance numbers were higher than reflected in the PIP, and he also wanted to "point out this pattern of... favoritism and inconsistencies in how various employees are being treated." [ Id. at 93.] Among other things, Mr. Tucher complained that Mr. Earley treated other Key Bank branch managers move favorably than Mr. Tucher- e.g., Kelly Gerling was allowed to arrive late to work while Mr. Tucher was not. [ Id. at 37-40.]

Yolanda Jackson, a Key Bank Senior Employee Relations Consultant, investigated Mr. Tucher's allegations by, among other things, interviewing Mr. Tucher and Mr. Earley. [Dkt. 49-2 at 4.] Ultimately, she found that no misconduct occurred and that it was appropriate to issue Mr. Tucher a Second Level PIP. [ Id. at 5.] However, desiring to reach an amicable outcome with Mr. Tucher, Key Bank offered him two options, both of which involved continued employment and the removal of the Second Level PIP. [ Id. ] Mr. Tucher did not respond to this offer and thus simply remained in his position. [ Id. ]

On June 18, 2011, Mr. Tucher filed a Step Two ODD, [dkts. 49-1 at 108; 59 at 15], the purpose of which was to "review how the Step One Open Door process was conducted, " [dkt.49-1 at 153]. Mr. Tucher challenged Key Bank's handling of his Step One ODD and continued to allege that favoritism was being shown to certain Key Bank employees. [ Id. at 108-10.] Key Bank further investigated Mr. Tucher's concerns and determined that they did not justify a Step Two Open Door process. [ Id. at 153.]

In September 2011, reorganization at Key Bank caused Ms. Hampton to return to her previous role as Mr. Tucher's direct supervisor. [Dkt. 48-3 at 3.] She determined that his previous performance issues were worse than they were before and that his performance numbers remained low. [Dkts. 47 at 9; 49-2 at 5.] Having not been involved in his earlier PIPs or ODDs, Ms. Hampton placed Mr. Tucher on another First Level PIP. [Dkt. 48-2 at 3.]

Mr. Tucher's performance again failed to improve, and on March 13, 2012, he was accelerated to a Final Level PIP and, as an alternative to complying with the PIP, provided an Exit Agreement. [ Id. at 4; see dkt. 49-2 at 7.] Key Bank thought this was the appropriate course of action for several reasons: (1) Mr. Tucher's results did not follow the action plan for improvement in his First Level PIP; (2) "[a]fter multiple requests, Mr. Tucher frequently failed to arrive to work on time"; (3) even though it was made clear to Mr. Tucher that Key Bank preferred he not stay at the branch after hours, video footage revealed he often did, "sometimes until after midnight and on Sundays, " during which times he would access dating websites; (4) Mr. Tucher told his branch relationship manager, Tod Higbee, that Mr. Tucher could not do his scheduled calls that had been on the calendar for some time, stating: "This is my fucking office and I will do what I want"; and (5) other employees in the branch were scared of Mr. Tucher "because his behaviors were erratic" and he yelled at them. [Dkt. 49-2 at 7.]

The day before Mr. Tucher was presented with his Final Level PIP and Exit Agreement, Key Bank's Ethics Hotline received an anonymous call (later identified as being made by a specific Key Bank Teller at Mr. Tucher's branch) complaining that Mr. Tucher told her and other employees "that he was going to rub his penis on a water bottle so [another employee] would drink it." [ Id. at 32.] According to the caller, Mr. Tucher then took the bottle to the bathroom and another employee later drank from the bottle. [ Id. ] On March 21, Ms. Jackson interviewed several employees regarding the incident. [ Id. at 7.] The other employee in the room at the time, who identified himself as Hispanic, confirmed that the caller's story and further told Ms. Jackson that Mr. Tucher had made a racially offensive comment to him less than a month prior to that incident. [ Id. at 38.] When asked about these incidents during his deposition, Mr. Tucher denied any involvement in the water bottle incident and denied making any racially offensive statements. [Dkt. 56 at 4.]

The next day, Ms. Jackson interviewed Mr. Tucher about the water bottle incident. [Dkt. 49-2 at 7.] Following the interview she suspended him with pay pending the result of the investigation. [ Id. at 7-8.] Ms. Jackson completed her investigation on March 28. [ Id. at 8.] Due to the findings of her investigation, she recommended that Mr. Tucher be terminated due to evidence of "numerous violations of KeyBank's Professional Conduct and Harassment Policies." [ Id. ] Ms. Jackson, Mr. Bontreger, and Ms. Hampton agreed "to allow Mr. Tucher to take advantage of the previously offered Exit Agreement and voluntarily resign, if he chose to do so on or before April 3, 2012." [ Id. ]

Late in the day on April 2, Mr. Tucher emailed Ms. Jackson requesting a medical leave of absence, to which she did not respond. [ Id. ] Instead, because Mr. Tucher had not signed the Exit Agreement by the April 3 deadline, Key Bank terminated him employment. [ Id. at 8-9; see id. at 155-56.]

On June 19, 2012, Mr. Tucher filed a charge of discrimination against Key Bank with the Equal Employment Opportunity Commission ("EEOC"). [Dkt. 1-1 at 3.] In his charge, he alleged that Key Bank discriminated against him due to his age (53) and disability (heart disease) and that they retaliated against him for engaging in a protected activity. [ Id. at 3-4.] The EEOC was unable to conclude that any discrimination or retaliation occurred and thus issued Mr. Tucher a right to sue letter on August 28, 2012. [ Id. at 2.]

Mr. Tucher filed the instant suit on November 26, 2012, alleging that Key Bank violated the ADEA, ADA, and Rehabilitation Act. [Dkt. 1 at 1-2.] Key Bank now moves for summary judgment. [Dkt. 46.]

III.

DISCUSSION

A. Age Discrimination

The Court need not address at length Mr. Tucher's age discrimination claim. The ADEA makes it unlawful for an employer to discharge an employee due to that individual's age. See 29 U.S.C. § 623(a)(1). To prove discrimination under the ADEA, the plaintiff can proceed under either the direct or indirect method. See Cerutti v. BASF Corp., 349 F.3d 1055, 1060 (7th Cir. 2003). Mr. Tucher concedes he cannot proceed under the direct method, and thus attempts to utilize the indirect method. [Dkt. 57 at 12-13.]

The indirect method requires a plaintiff to follow the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff must first set forth a prima facie case of discrimination, which requires a showing that: "(1) he was over forty years of age; (2) he was meeting his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated, substantially younger employees were treated more favorably." Franzoni v. Hartmax Corp., 300 F.3d 767, 771-72 (7th Cir. 2002). If the plaintiff successfully makes this showing, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse action. Id. Should the defendant meet this requirement, the burden shifts back to the plaintiff to demonstrate that the proffered reason is pretextual. Id. Finally, "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).

Key Bank contends that Mr. Tucher cannot meet the second and fourth prongs of the prima facie case, and that even if he could, he cannot show pretext because "there is no evidence to impugn the honesty of KeyBank's nondiscriminatory reason for Mr. Tucher's termination"- namely, that Ms. Jackson's investigation of Mr. Tucher revealed that he "engaged in inappropriate sexual comments and actions, used profanity, disrespected his staff, and interfered with their work performance." [Dkt. 34 at 16-19.] Mr. Tucher's response is woefully deficient. In totality, without citing any evidence, Mr. Tucher responds: "Mr. Tucher has submitted evidence that disputes Key Bank's claim that he was not meeting its legitimate expectations. He has also submitted evidence that Key Bank's expectations were not, in fact, legitimate. Furthermore, the statement of facts set out above demonstrate[s] that he suffered an adverse employment action and that a similarly situated younger person was treated more fairly." [Dkt. 57 at 12-13.]

Looking past his failure to cite the evidence establishing these things and explain why that evidence is sufficient, Mr. Tucher does not even assert that Key Bank's proffered justifications were a pretext for age discrimination. Therefore, because Mr. Tucher did not even attempt to establish that Key Bank's reasons for terminating his employment were pretextual, the Court can assume without deciding that he demonstrated a prima facie case of discrimination and focus solely on the question of pretext. See Bodenstab v. Cnty. of Cook, 569 F.3d 651, 657 (7th Cir. 2009); Rummery v. Illinois Bell Tel. Co., 250 F.3d 553, 556 (7th Cir. 2001). Having not argued or cited evidence establishing pretext, there is no genuine issue of material fact regarding the truth of Key Bank's proffered justification for terminating Mr. Tucher's employment.[2] Accordingly, summary judgment in favor of Key Bank on Mr. Tucher's ADEA claim is warranted.[3]

B. Disability Discrimination

Mr. Tucher contends that Key Bank violated the ADA when it (1) failed to provide him a reasonable accommodation for his disability and (2) discharged him due to his disability. [ See dkt. 57 at 7-11 (discussing Mr. Tucher's ADA claim in terms of both his termination and Key Bank's alleged failure to accommodate his disability).] The Court addresses each of these ADA claims in turn.

1. Reasonable Accommodation

The ADA "requires employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer].'" Cloe v. City of Indianapolis, 712 F.3d 1171, 1176 (7th Cir. 2013) (alterations in original) (quoting 42 U.S.C. § 12112(b)(5)(A)). Mr. Tucher argues that his heart disease qualifies as a disability under the ADA and that Key Bank failed to accommodate this disability by requiring him to work more than forty hours a week, contrary to his doctor's recommendation. [Dkt. 57 at 9-10.] Key Bank contends that Mr. Tucher cannot bring an ADA reasonable accommodation claim because he did not bring such a claim in his EEOC charge or Complaint and, alternatively, even if he could bring such a claim, it is time-barred. [Dkt. 64 at 12.] The Court agrees with both of Key Bank's arguments.

A plaintiff cannot generally bring claims in a lawsuit "that were not included in [his] EEOC charge.'"[4] Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013) (quoting Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). "However, a plaintiff can still bring [claims not included in the EEOC charge] if they are like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations." Id. (alteration in original) (citations and quotation marks omitted). "To be like or reasonably related, the relevant claim and the EEOC charge must, at minimum, describe the same conduct and implicate the same individuals." Id. (citations and quotation marks omitted). "Although this rule is not jurisdictional, it is a condition precedent with which Title VII plaintiffs must comply." Cheek., 31 F.3d at 500 (citations omitted).

Mr. Tucher's reasonable accommodation claim is predicated on Key Bank's failure to cap his hours at forty per week to accommodate his heart condition once he returned from medical leave in June 2010. [Dkt. 57 at 10.] But Mr. Tucher did not describe this alleged conduct, or any similar conduct, in his EEOC charge. [ See dkt. 1-1 at 3-4.] The most closely related conduct detailed in the EEOC charge is Mr. Tucher's allegation that Mr. Early and Mr. Bontreger did "not allow[] [him] to leave for lunch to take [his] medication[] on one occasion." [ Id. at 3.] But this is categorically different than a reasonable accommodation claim predicated on Key Bank's failure to cap his hours at forty per week. Moreover, the allegation regarding lunch detailed in Mr. Tucher's EEOC charge allegedly occurred in March 2011, [ id. at 3], but Mr. Tucher contends that he was denied his hours accommodation in June 2010, [dkt. 57 at 10]. This conclusively demonstrates that the only allegation in Mr. Tucher's EEOC charge that is even remotely related to a denied accommodation is not "the same conduct" that forms the basis of his reasonable accommodation claim. Lavalais, 734 F.3d at 634. Accordingly, Mr. Tucher failed to meet this condition precedent for bringing his claim.

Alternatively, even if the allegations in Mr. Tucher's EEOC charge were sufficient, his reasonable accommodation claim is time-barred. In Indiana, charges of discrimination "must be filed within 300 days of the occurrence of the act that is the basis of the complaint." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir. 1994). Mr. Tucher filed his EEOC charge on June 19, 2012, and 300 days before that date is August 24, 2011. Thus any contentions by Mr. Tucher that Key Bank "failed to accommodate his disability" before August 24, 2011, "cannot be used to support [his] claim." Teague v. Nw. Mem'l Hosp., 492 Fed.Appx. 680, 683 (7th Cir. 2012). Yet Mr. Tucher's reasonable accommodation claim is predicated on Key Bank's failure to accommodate his request-made in June 2010 -to work a maximum of forty hours per week. [Dkt. 57 at 10 (arguing that in "June of 2010" he presented Mr. Earley and Mr. Bontreger "with a note from his treating physician which stated that he was available to work forty (40) hours per week due to [Ms. Tucher's] adverse side effect of his heart condition, " yet "it was clear that neither... was willing to extend reasonable accommodations" and he "was required to continue working 50 hours per week").] Although this is one of the rare occasions that Mr. Tucher points to admissible evidence supporting his factual assertions, [ see id. ], Mr. Tucher himself acknowledges that these events occurred in June 2010- i.e., well before the August 24, 2011, statutory deadline. Because Mr. Tucher relies solely on events before this date to establish his reasonable accommodation claim, his claim is time-barred, entitling Key Bank to summary judgment. See Teague, 492 Fed.Appx. at 683.

2. Termination

The ADA prohibits discrimination "against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). Mr. Tucher contends that Key Bank violated the ADA when it terminated him due to his disability. [Dkt. 57 at 7-8.] Like claims under the ADEA, a plaintiff may prove an ADA claim under the direct or indirect method. See Dickerson v. Bd. of Trustees of Community College Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). Mr. Tucher does not have any direct evidence of discrimination and therefore must proceed under the indirect method.

"Under the indirect method of proof, a plaintiff must first establish a prima facie case of discrimination by showing that (1) he is disabled under the ADA; (2) he was meeting his employer's legitimate employment expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees without a disability were treated more favorably." Id. (citing Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 601 (7th Cir. 2009)). "Once a plaintiff has established a prima facie case, the defendant must identify a legitimate, non-discriminatory reason for its employment decision." Id. (citing Rooney v. Koch Air, LLC, 410 F.3d 376, 381 (7th Cir. 2005)). "If the defendant satisfies this requirement, the plaintiff must then prove by a preponderance of the evidence that the defendant's reasons are pretextual." Id. (citing Lloyd, 552 F.3d at 601).

Key Bank contends that summary judgment is warranted for several independent reasons: (1) Mr. Tucher is not "disabled" as defined by the ADA; (2) there is no evidence supporting the second and fourth elements of the prima facie case; (3) there is no evidence that the articulated reasons for Mr. Tucher's termination were pretextual; and (4) Mr. Tucher's stated disability was not the but-for cause of his termination. [Dkt. 47 at 24-28.] Mr. Tucher, again, utterly fails to respond to Key Bank's position with cogent arguments supported by citations to admissible record evidence.

First, Mr. Tucher asserts that his heart disease renders him disabled as defined by the ADA, but fails to cite any record evidence that he has heart disease, let alone evidence regarding how his heart disease limits his abilities. [Dkt. 57 at 8 (citing only two excerpts from Mr. Tucher's deposition, neither of which was submitted to the Court as part of the summary judgment record).] But even if the Court assumes that the record evidence regarding Mr. Tucher's heart disease and leave of absence due to that disease are sufficient to establish his disability-which they are likely not, see Fleishman v. Continental Cas. Co., 698 F.3d 598, 607 (7th Cir. 2012) ("[T]he existence of a medical condition alone is insufficient to [establish disability under] the ADA.")-Mr. Tucher cannot prove his ADA claim.

As with his ADEA claim, the Court assumes without deciding that Mr. Tucher could establish a prima facie case of ADA discrimination, see Bodenstab, 569 F.3d at 657, but concludes that Mr. Tucher presents no evidence that Key Bank's proffered justifications for discharging him were pretextual. "Pretext means a dishonest explanation, a lie rather than an oddity or an error.'" Id. (quoting Faas v. Sears, Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008)). Specifically, "[s]howing pretext requires [p]roof that the defendant's explanation is unworthy of credence.'" Id. (second alteration in original) (quoting Flar v. Bd. of Educ. of City of Chicago, 526 F.3d 1054, 1063 (7th Cir. 2008)); see Teruggi v. CIT Group/Capital Fin., Inc., 709 F.3d 654, 661 (7th Cir. 2013). Again, Key Bank "based [its] decision to terminate Mr. Tucher on the evidence brought forth by the investigation, including in part: (1) [the Key Bank employee's] claim of sexually harassing and unprofessional conduct and [the] substantiation of such and (2) the numerous instances of unprofessional behavior by Mr. Tucher cited by all employees[] interviewed." [Dkt. 47 at 27.] To establish that these justifications were pretextual, Mr. Tucher offers conjecture and speculation, but no evidence. [ See dkt. 57 at 11.] He asserts that the three Key Bank employees interviewed by Ms. Jackson during her investigation of the water bottle incident appear to have "other motivations, " that "[i]t is [Mr. Tucher's] belief that [the three employees] concocted a lie in order to compromise [Ms. Tucher's] position with [Key Bank], " and that Mr. Tucher "does not believe there was a thorough investigation into the alleged incident." [ Id. ]

The Court need not assess whether these assertions are sufficient to establish pretext, as Mr. Tucher does not even attempt to cite evidence in support of them. This alone dooms his claim. But even if the Court were to assume that there was evidence bearing out these assertions, they would not establish pretext for at least two additional reasons. First, although Mr. Tucher denied taking part in the water bottle incident, [dkt. 56 at 4], and even if there was evidence that the interviewed Key Bank employees lied in an attempt to get Mr. Tucher fired, this does not establish pretext. Recall that it was Ms. Jackson, Mr. Bontreger, and Ms. Hampton who made the ultimate decision to terminate Mr. Tucher's employment, [dkt. 49-2 at 8], and they were well within their rights to believe the other employees' account of the water bottle incident even if it was an "error" to do so, as an error in judgment alone does not establish pretext. Bodenstab, 569 F.3d at 657.

Second, "[w]here an employer proffers more than one reason for the challenged action, a plaintiff must address all of the employer's suggested reasons.'" Mullin v. Temco Machinery, Inc., 732 F.3d 772, 778 (7th Cir. 2013) (quoting Hudson v. Chicago Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004)). Even if Key Bank's reliance on the water bottle incident was a pretext for discrimination, Mr. Tucher did not even attempt to undermine Key Bank's other proffered justifications. [ See dkt. 57 at 11 (arguing only that the water bottle "incident was a pretext to terminating [Mr. Tucher]").] For example, Key Bank asserted that Mr. Tucher was also terminated due to "the numerous instances of unprofessional behavior by Mr. Tucher cited by all employees[] interviewed, " [dkt. 47 at 27], such as Mr. Tucher's racially offensive statement to another Key Bank employee, [dkt. 49-2 at 38]. Mr. Tucher's failure to address this proffered justification, along with the others, provides another basis for granting summary judgment in Key Bank's favor.

Accordingly, for the above stated reasons, Mr. Tucher did not produce sufficient admissible evidence supporting either of his ADA claims, making Key Bank is entitled to summary judgment on them both.

C. Rehabilitation Act and Retaliation Claims

In his Complaint, Mr. Tucher asserted a claim under the Rehabilitation Act, and he also alleged that Key Bank retaliated against him "for engaging in protected activity." [Dkt. 1 at 1-2.] In its opening brief, Key Bank argues at length that it is entitled to summary judgment on both of these claims. [Dkt. 47 at 28-34.] Mr. Tucher, however, failed to respond to Key Bank's arguments regarding either claim. Indeed, he does not mention the Rehabilitation Act at all, and makes only fleeting references to retaliation without arguing that he has evidence supporting a retaliation claim. [ See dkt. 57.] Key Bank contends that Mr. Tucher's failure to even mention these claims, let alone argue against its position, amounts to waiver. [Dkt. 64 at 17-18.] The Court agrees with Key Bank that these claims are waived. Key Bank set forth

several arguments as to why it is entitled to summary judgment on Mr. Tucher's Rehabilitation Act and retaliation claims. [Dkt. 47 at 28-34.] Not once in response does Mr. Tucher mention the Rehabilitation Act, let alone resist Key Bank's conclusion that he cannot make out a claim under it. Nor does Mr. Tucher contend that he has evidence supporting a retaliation claim. The Court will not pursue claims for Mr. Tucher that he himself deems unworthy of pursuit; Mr. Tucher waived his Rehabilitation Act and retaliation claims by failing to respond to Key Bank's arguments regarding them. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an argument-as [Mr. Tucher has] done here-results in waiver"); Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1075 (7th Cir. 2013) (affirming the district court's dismissal of three claims as waived because the party "failed to present evidence or argument in favor of them, " and stating "[t]hey also failed to respond to the City's arguments against these claims in their reply to the City's motion to dismiss. Because they did not provide the district court with any basis to decide their claims, and did not respond to the City's arguments, these claims are waived."). Accordingly, Key Bank is entitled to summary judgment on Mr. Tucher's Rehabilitation Act and retaliation claims.

IV.

CONCLUSION

For the reasons explained, the Court GRANTS Key Bank's Motion for Summary Judgment. [Dkt. 46.] Judgment will issue accordingly.

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff, Anthony R. Tucher, by Counsel, Michael E. Boring, respectfully responds to the Motion of Defendant Key Bank, a/k/a KEYBANK, N.A. for Summary Judgment filed herein on September 30, 2013 and requests that the Court deny the Motion on the grounds that there are multiple genuine issues in this case which establish that Defendant is not entitled to Summary Judgment as a matter of law.

I. INTRODUCTION

Defendant, KeyBank, N.A. (hereinafter referred to as "Defendant") discriminated and retaliated against its former employee, Plaintiff, Anthony R. Tucher, (hereinafter referred to as "Plaintiff"). Defendant terminated Plaintiff's employment, due to Plaintiff's disability and age and further retaliated against him in response to filing of an internal complaint against two (2) of Plaintiff's superiors.

Plaintiff denies that he failed to meet Defendant's legitimate expectations. Plaintiff further denies that he engaged in inappropriate sexual misconduct, disrespected his staff and co-workers, failed to report to work on time, and interfered with the performance of other employees of Defendant or that he violated Defendant's policies in any other manner. Plaintiff can provide evidence that his termination was related to his age, disability, and retaliation. Plaintiff requests that Defendant's Motion for Summary Judgment be denied in its entirety.

II. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

Anthony Tucher (hereinafter referred to as "Tony), is 50 years old and suffers from severe heart disease. He spent over 27 years working in the banking industry. Tony loved his work and exceled at it generally exceeding performance goals wherever he was employed(Pl.Dep. p. 13:1-15). From 1985-2003, Tony was employed with Fifth-Third Bank. While at Fifth-Third, he was a top performer and eventually was promoted to Vice President and branch manager (Pl.Dep. p. 13:1-15). In 2003, Tony left voluntarily for a better opportunity at Greenfield Banking Company(P.Dep. p. 14:10-18). Tony was hired by Greenfield Banking to make changes in its lending process and develop new business(Pl.Dep. p.15:10-16). After voluntarily leaving Greenfield Banking Company, Tony continued in the banking industry, working for JP Morgan Chase, Stock Yards Bank, Home Bank, and Wachovia(Pl. Dep. pp. 20-28). Tony left all of these positions voluntarily and was never terminated. Id In early 2009 while at Wachovia, Tony experienced a life-changing event when he suffered a type of severe heart attack often referred to as a "widow-maker" (Pl.Dep. p.51:11-20). Tony was already seeking alternative employment due to the stressful environment, and had already begun the application process with Key Bank; however, based on his doctors' advice, he decided to pursue this new job more seriously. Id. After interviewing with Lisa Hampton and Nick Bontrager, Tony was offered the position, and he began his employment with Defendant as a Key Center Manager on June 8, 2009 at its Beech Grove, Indiana branch(Pl. Dep. p. 55:12-15). The Beech Grove branch was referred to as a "de novo" branch (Pl. Dep. p. 58:5-7). This meant that the branch was brand new, with no existing book of business (Pl.Dep. p. 58:8-10). In the beginning, Lisa Hampton (hereinafter referred to as "Hampton") was the Area Retail Leader for Plaintiff's branch and Nick Bontreger (hereinafter referred to as "Bontreger") was the District Retail Leader over Plaintiff's branch. (Pl. Dep., p. 55:16-23; p. 59:3-14). Tony believed that his working relationship with Lisa Hampton was good at first (Pl.Dep., p. 60:14-17). He worked extremely hard during the first six months of his employment, working six days a week, every hour that the branch was open (Pl.Dep. p.62:2-6). As stated before, Tony was under doctor's orders to lower his stress level due to his recent heart attack (Pl.Dep. p.51:11-18). So, in December after the branch was opened and running successfully, Tony approached Lisa to ask to take his vacation time. She declined his request in spite of his condition and the fact that there was adequate coverage in the branch(Pl.Dep. p.61:7-17).

In April of 2010, Brian Earley(hereinafter referred to as "Earley"), became the new Area Retail Leader over all "de novo" branches and Lisa took another position at KeyBank(Pl. Dep. p. 59:15-23). It was also in or around this time, that Tony's doctor recommended that he take leave from work given the stress that it was clearly causing him (Pl.Dep. p.96:7-9). Tony put in for leave and took from April 2010-June 2010 to attend to his health. Id. However, upon his return, it was clear that neither Earley nor Bontreger was willing to extend reasonable accommodations for Tony's disability (Pl.Dep. p.118:17-p119: 14). Specifically, Tony came back from leave with a doctor's note saying he was limited to 40 hours per week. Id. However, they mad it clear to Tony that would refuse to accommodate this limitation and required Tony to continue working 50蚋 per week (Pl.Dep. p 114:10-19). It further appeared that Earley held Mr. Tucher to completely different standard than he did others similarly-situated. Id. In addition, both Earley and Bontreger created an atmosphere of intimidation in the office(Pl.Dep. p.72:4-14; p. 76:8-16). Earley issued Tony a Level One Performance Improvement Plan on November 7, 2011 (Earley Aff. pp. 14-15). Earley issued Plaintiff a Second Level Performance Improvement Plan subsequently. Tony disputes the issues raised in both PIPs(Pl.Dep. p.189:11-15 and Open Door Policy Resolution Form). Strangely, Earley issued the Second Level PIP on a day when Earley was to attend two meetings, along with Tony, with potentially lucrative clients(Open Door Policy Resolution Form). Early never showed for the first appointment and was late for the second, indicating he had only fifteen (15) minutes with the client, which potentially lost the branch money. Id. Also, on this same day, Tony was dealing with extreme fatigue from his heart disease which caused him to need to take breaks(Pl.Dep. p109:7-21). He made it very clear to Brian that he was dealing with these complications, was extremely weak, and needed to take his meds immediately. Id. However, Brian refused to allow him to leave. Id. When he was finally allowed, he was only given time to grab lunch and return, which did little to relieve the stress and risk to his heart (Pl.Dep. p.9-14). In April of 2011, after several similar issues with both Earley and Bontreger, Tony filed an internal complaint against both of them (Pl.Dep. p.69:18-23). In it, Tony disputed the substance of the Second Level PIP filed prior to this date by noting that his productivity was over 100% year-to-date and that his office was showing improvement and was near the top of the de novo offices in Indiana. (Open Door Policy Resolution Form). Tony also stated that he had identified a pattern of behavior that had been going on for quite some time and that there was clear favoritism and inconsistency in how employees are treated. Id. In his deposition, Tony stated that he believes that Brian and Nick used PIPs and created issues as pretext to get rid of him because of his disability and age (Pl.Dep. p. 247:7-17). He expressed concern over retaliation against him as a result of filing the Open Door Policy Resolution filing. Id. After the filing of the Open Door Dispute, the Second Level PIP was ultimately removed from Plaintiff's personnel file(Pl.Dep. p.69:18-23). In Plaintiff's opinion the Second Level PIP was removed because his claims that Earley had a personal issue with him were substantiated. Id.

In September of 2011, Lisa Hampton, once again became ARL over the Beech Grove branch, replacing Brian Earley, who moved to another position(P.Dep. p.67:21-25). Tony states that Lisa appeared to have little authority, and that more specifically, he had the impression that she was stuck between Tony and Nick Bontreger (p. 68:14-22). In her affidavit, Lisa Hampton sites reasons that she believes Tony was terminated. Among them is her claim that she told Tony he was not allowed to stay after-hours at the branch (Hampton Aff.). Tony disputes that Hampton told him he was not to stay late, instead, she merely discouraged the practice (Pl.Dep. p.100:7-8). Furthermore, Tony's occasional late hours at the branch were due to the expectations that were placed on him and it was necessary in order to complete his work(Pl.Dep. p.100:5-11). As to the alleged issues with his performance, Tony disputes the performance goal numbers (Pl.Dep. p.189:6-15). Regardless, judged in comparison with other branches, Tony and Beech Grove were doing well. (Pl.Dep. p.79:8-21).

In his deposition, Tony points to several instances of unequal treatment for others similarly situated. Specifically, Tony points to the preferential treatment received by Branch manager Kelly Gerling, Eric Vohls and a manager named Laurie who managed a branch in Hamilton County(Pl.Dep. p.125-p127). Despite having number that were worse than Beech Grove's, consistent issues with attendance and tardiness, these managers received preferential treatment and, to Tony's knowledge, did not suffer consequences and were not terminated. None of these managers suffers from disability. (Pl.Dep. p. 124-p.127). Key Bank also discriminated against Tony in pay as well. Specifically, everyone in the Beech Grove branch received a pay increase in 2009 and 2010 which was related to the overall branch's performance, except Tony (Pl.Dep. p.145:5-12). Tony observed discrimination against other individuals in his protected class as well. He states that a branch manager named Gary Guevitz, who was a disabled individual in his 60s was treated unequally and eventually was forced out of his position(Pl.Dep. p.172-p.173).

On March 13, 2012, Plaintiff met with Lisa Hampton and she gave him another PIP, along with a severance agreement for his consideration and signature. Tony began to suffer from issues related to his heart disease, and on March 15, 2012, Tony provided Lisa Hampton with a doctor's note indicating that he needed to be on medical leave effective immediately and until further notice(Pl.Dep. 116:16-23). However, he was denied this request for leave. Id. Soon after this, Tony was called into a meeting with Johnny Winston and Yolanda Jackson where he was placed on indefinite leave pending an investigation. (Pl.Dep.) Sometime after April 6, 2012, Mr. Tucher was informed that he had been terminated. Tony adamantly disputes the accusations raised by Key Bank regarding his violation of the company's code of professional conduct. Specifically, he denies making any racially discriminatory or offensive comments(p. 198:16-25 and p.199:1-13). Finally, he denies any incident involving an employee's water bottle or making any sexually offensive comments or actions (Pl.Dep. p.196:3-25 and p.197:1-25).

III. ARGUMENT

A. Summary Judgment Standard

The purpose of summary judgment is to end litigation when no issue of material fact exists and when issues in the case may be determined as a matter of law. Art Country Squire, L.L.C. v. Inland Mortgage Corp. , 745 N.E.2d 885 (Ind.Ct.App. 2001); LeBrun v. Commer , 702 N.E.2d 754 (Ind.Ct.App. 1998). Courts must exercise caution to ensure parties of their right to a fair determination of genuine issues. Art Country Squire, L.L.C. , 745 N.E.2d at 891. Summary judgment is inappropriate when there is a genuine issue of material fact, or when the moving party is not entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Greathouse v. Armstrong , 616 N.E.2d 364 (Ind. 1993). The burden is on the party seeking summary judgment to negate the existence of any genuine issue of material fact. Art Country Squire, L.L.C. , 745 N.E.2d at 891; Time Warner Entertainment Company, L.P. v. Whiteman , 802 N.E.2d 886 (Ind. 2004); Winkler v. V.G Reed & Sons , 638 N.E.2d 1228, 1235 (Ind. 1994). All facts and reasonable inferences drawn from those facts are construed in the light most favorable to the nonmoving party. Butler v. City of Peru , 733 N.E.2d 912, 915 (Ind. 2000); Time Warner Entertainment , 802 N.E.2d at 895. In reviewing the nonmovant's response, the court must consider as true the facts set forth in the nonmovant's affidavits and liberally construe discovery in nonmovant's favor. Art Country Squire, L.L.C. , 745 N.E.2d at 891.

B. Plaintiff Tony Tucher Does Suffer From a Disability As Defined by the Americans with Disabilities Act.

The Americans with Disabilities Act ("ADA") prohibits discrimination on the basis of disability in employment. To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA and ADAAA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment. The ADA does not specifically name all of the impairments that are covered. Title I of the ADA requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. For example, it prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. It restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship. Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213

In Powdertech, Inc. v. Joganic that there are two (2) dispositive issues in determining whether a claimant has a cognizable claim of discrimination under the ADA: (1) whether s/he has a "disability" under the ADA; and (2) whether the employer's proffered, nondiscriminatory reason for terminating the claimant was a "pretext." Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1256 (In.Ct.App. 2002). Mr. Tucher's disease meets the criteria of "disability" under the ADA, and as amended by the ADAAA. Specifically, he is a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment. Mr. Tucher testified, as set out above, that his heart condition required him to take medical leave, required open heart surgery, and was continuous and ongoing(Pl.Dep. p. 250:4-10). Further, Tony's heart condition is well documented(Pl.Dep. p.252-253).

C. Plaintiff Denies He Failed To Meet The Legitimate Expectations Of Defendent

Plaintiff wholly denies and disputes that he made any comments or acted in any way that would be deemed contrary to Defendant's Professional Conduct policy, Harassment policy or any other policy of Defendant. Plaintiff, in his deposition, specifically denies that he made any bigoted comments or that he spoke or acted in any way that could be construed as sexually harassing or inappropriate.

Further, Plaintiff disagrees with the numbers shown to represent his performance. Plaintiff is aware that some of the figures used are no longer utilized in measuring performance as they were shown to not provide an accurate measure. Plaintiff's branch performed as well or better than other branch under similarly situated KCMs. The only difference between Plaintiff and similarly situated KCMs is that Plaintiff was disabled. Thus, given the Plaintiff's testimony and other related evidence, a genuine issue of material fact exists which precludes the granting of Summary Judgment.

D. Defendant Failed to Reasonably Accommodate Plaintiff

In a reasonable accommodation case, "the plaintiff must first show that: 1) he was disabled; 2) his employer was aware of his disability; and 3) he was a qualified individual who, with or without reasonable accommodation, could perform the essential functions of the employment position." Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001). If Plaintiff can establish that, he must then show that Defendant failed to reasonably accommodate his disability. Id. Plaintiff then survives summary judgment unless Defendant can demonstrate "that the accommodation would impose an undue hardship on the operation" of their business. 42 U.S.C. § 12112(b)(5)(A).

As set out above, on or about June of 2010, Plaintiff provided Bontrager and Earley with a note from his treating physician which stated that he was available to work forty (40) hours per week due to Plaintiff's adverse side effects of his heart condition (Pl.Dep. p.118:17-p119: 14). Defendant was aware previously aware of Plaintiff's heart condition, as his initial first interview was postponed due to his suffering a heart attack. Upon his return, it was clear that neither Earley nor Bontreger was willing to extend reasonable accommodations for Tony's disability (Pl.Dep. p.118:17-p119: 14). Moreover, Tony was required to continue working 50蚋 per week(Pl.Dep. p114:10-19). Further, both Earley and Bontrager failed to further discuss the reasonable accommodations requested by Plaintiff and ordered by his physician with Plaintiff, after she was provided the physicians order. Id.

The Seventh Circuit has made clear that "an employee's request for reasonable accommodation requires a great deal of communication between the employee and employer." Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996). "The employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability." 29 C.F.R. § 1630.9; Bultemeyer, 100 F.3d at 1285-86. While the breakdown in the interactive process itself is not enough for employer liability, a plaintiff can prevail if he can show that this breakdown led to the employer's failure to provide a reasonable accommodation. In viewing the facts in the light most favorable to Plaintiff, it would be difficult to see how the accommodations his physician recommended would have been overly burdensome to the Defendant. Defendant has failed to establish that shorter shifts and occasional breaks would have created such a burden.

E. Plaintiff Was Not, In Fact, Discharged for Policy Violations

It should be for the finder of fact to determine the truthfulness of a particular witness or witnesses. In the case at hand, it appears that other motivations may have lead to certain witnesses creating a false complaint in order to compromise Plaintiff's employment. Specifically, it's clear, by reading his statement to Yolanda Jackson, that Tod Higbee didn't like Plaintiff. Likewise, Ms. Morales and Mr. Salazar also made negative statements about Plaintiff's character and their feelings toward Plaintiff. Each of the three (3) of them site specific instances where Plaintiff had made them upset or angry. Additionally, according to each of their respective statements given to Yolanda Jackson, these three (3) individuals spoke privately, on more than one occasion, regarding the alleged incident where they claim Plaintiff put his penis into another employee's water bottle. It is Plaintiff's belief that Morales, Higbee and Salazar concocted a lie in order compromise Plaintiff's position with Defendant and therefore potentially put Higbee and Salazar in line to be promoted. Salazar specifically states that he was seeking to move up within the company, in fact, Plaintiff refers to suggesting Salazar for a CSM position. Plaintiff does not believe there was a thorough investigation into the alleged incident and further believes that had there been, the claims would have been found to be unsubstantiated. This alleged incident was a pretext to terminating Plaintiff due to his disability and age.

F. Defendant's Reliance on the Same Actor Defense is Misplaced and not Applicable to the Facts of this Case.

Plaintiff's circumstances are different than those in Defendant's cited case given that Plaintiff's condition turned out to be far worse than previously thought. That Plaintiff was required to take two (2) months of medical leave between April 2010 and June 2010. Plaintiff believes that he came to be viewed as a liability to Defendant. Defendant not only terminated Plaintiff's employment but failed to give him reasonable accommodations throughout the time he was employed there. This is not simply and issue of the "same actor" carrying out the hiring and firing, Plaintiff has alleged other types of adverse employment action than simply termination.

G. Plaintiff Was Also Discriminated Against Due to His Age

Plaintiff has submitted sufficient evidence to establish that there is a genuine issue of material fact regarding his age discrimination claim. While Plaintiff acknowledges that there was no direct evidence of age discrimination in his case, he has submitted sufficient evidence to establish it by the indirect method. In order to establish a discrimination claim by the indirect method, Plaintiff must first make a prima facie case that 1) he is a member of a protected class, 2) he performed reasonably on the job in accord with his employers' legitimate expectations, 3) despite his reasonable performance, he was subjected to an adverse employment action, and 4) similarly situated employees outside the protected class were treated more favorably by the employer. Wade v. Lerner New York, Inc., 243 F.3d 319, 322(7th Cir. 2001). If Plaintiff's evidence is sufficient to make a prima facie case of discrimination, then the burden shifts to the defendant to rebut by articulating a legitimate, nondiscriminatory reason for terminating him. Id. The burden then shifts back to plaintiff to demonstrate that the stated reason for termination was pretextual. Mr. Tucher has submitted evidence that disputes Key Bank's claims that he was not meeting its legitimate expectations. He has also submitted evidence that Key Bank's expectations were not, in fact, legitimate. Furthermore, the statement of facts set out above demonstrate that he suffered an adverse employment action and that a similarly situated younger person was treated more fairly. Given that a genuine issue of material fact exists, the Court cannot grant Summary Judgment.

IV. CONCLUSION

Defendant has wholly failed in its burden to prove that there is no genuine issue of material fact in this matter. Specifically, plaintiff has provided sufficient evidence that Defendant discriminated against him and that his termination was retaliatory in nature and not a result of his violation of Defendant's policies. Because of his condition and the medications he was taking for such condition, his ability to function normally was compromised as was as his ability to control his mood. He was often felt lethargic and generally ill. Plaintiff felt that his condition caused him to be looked upon as a liability. As is clear from the facts above, there was a pattern of conduct by his managers that became more severe as Plaintiff requested additional accommodations. Furthermore, Plaintiff cited several examples of instances when he was refused accommodations for his conditions. Plaintiff would respectfully request that Defendant's Motion for Summary Judgment be denied in its entirety and that Defendant take nothing by way of filing such Motion.


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