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Wharton v. Proteus Pros, LLC

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

September 9, 2014

PROTEUS PROS, LLC, doing business as MR. HANDYMAN, Defendant.


MARK J. DINSMORE, Magistrate Judge.

This matter was before the Court for a bench trial on June 23, 2014, on Plaintiff Michael B. Wharton's ("Wharton") Frampton claim against Defendant Proteus Pros, LLC, d/b/a Mr. Handyman ("Mr. Handyman"), alleging unlawful termination in retaliation for Wharton filing a worker's compensation claim. Having heard testimony and considering the exhibits and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.


Mr. Handyman is a business headquartered in Indianapolis, Marion County, Indiana. Wharton was employed by Mr. Handyman as a service technician/handyman from April 10, 2011 to August 4, 2011. Mr. Handyman paid Wharton $700.00 per week from his start date of April 10, 2011 to the pay period ending July 23, 2011. Payments for the final two pay periods ending July 30, 2011 and August 6, 2011 were for the prorated amounts of $420.00 and $560.00, respectively. Wharton's job entailed traveling to the homes of Mr. Handyman customers and performing repairs and home improvement services. James Furrer ("Furrer") is the owner of Mr. Handyman and the sole member of Proteus Pros, LLC. Furrer hired Wharton, had operational control over the business, and is the person who made employment decisions about Mr. Handyman's employees.

On July 14, 2011, Wharton was injured while working for Mr. Handyman at a customer's home. He fell from a ladder and injured his right knee. Wharton reported his work-related injury to Mr. Handyman from the job site. Mr. Handyman's office manager, Mary Harper ("Ms. Harper"), drove to the injury site and took Wharton to an immediate care medical facility for an examination. Initially, Wharton was placed under medical restrictions which stated, "Do not walk if it is causing pain. No pivot with right foot planted. Restrictions in place for 2 weeks after return. Patient is cleared to return with limitations and restrictions." (Exhibit 4, p. 2.) Mr. Handyman continued to send Wharton to perform his regular handyman job duties with these medical restrictions. On several occasions, Wharton continued to go to job sites to work alone.

Wharton's right knee injury continued to cause him pain, and he went to Furrer to further discuss the injury and to seek treatment through worker's compensation. Mr. Handyman sent Wharton back to the immediate care medical facility for a follow up visit on July 28, 2011. During this second examination, Wharton's medical restrictions were greatly increased to state, "Work restrictions until patient is evaluated and cleared by an orthopedist: No standing longer than 1 hour per 8 hour shift. No climbing ladders and stairs. No squatting or working on knees." (Exhibit 4, p. 3.) Additionally, the medical note indicated, "The patient needs further orthopedic evaluation to rule out cartilage damage vs. ligament tear." ( Id. ). Despite these restrictions, Wharton continued to work at customers' homes. Mr. Handyman gave Wharton office work to perform the last one to two days of his employment.

The orthopedic surgeon chosen by Mr. Handyman's worker's compensation administrator was OrthoIndy. Wharton was sent to OrthoIndy for an examination on July 29, 2011, and was subsequently further restricted to "sit down work only." (Exhibit 4, p. 4). At the following medical appointment on August 4, 2011, Furrer instructed Ms. Harper to attend the appointment with Wharton. Ms. Harper accompanied Wharton into the examination room. Wharton did not verbally object to Ms. Harper accompanying him into the room, nor did he expressly invite or consent to her being present. During the examination, Ms. Harper answered some of the doctor's questions regarding whether Mr. Handyman was honoring the medical restrictions placed on Wharton's work. Wharton informed the physician that Mr. Handyman had been requiring him to go out on jobs and do his regular work. The physician advised Wharton that he had a meniscus tear in his right knee and was being scheduled for surgery on August 18, 2011.

Immediately following the August 4, 2011 appointment, Wharton and Ms. Harper returned to the Mr. Handyman office. Furrer then instructed Ms. Harper to drive with Wharton to his home in the Mr. Handyman van that was assigned to him, and Furrer followed in his vehicle. At his home, Wharton was instructed to clean out the van, return all Mr. Handyman equipment and material, and turn over the keys to the van. Ms. Harper then drove away with the van. Wharton confronted Furrer and asked if he was being fired, but Furrer denied that he was terminating him. Approximately one week later, Wharton received a letter from Mr. Handyman backdated to August 4, 2011, advising him that he was terminated for "cause, " but the letter provided no further explanation of the reason for termination.

Wharton underwent his scheduled knee surgery on August 18, 2011. Mr. Handyman reported to its worker's compensation administrator that it had fired Wharton, which caused the worker's compensation administrator to take the position that it did not have to pay Wharton total temporary disability benefits during the period he recovered from his surgery until he was released to work again on October 7, 2011.

Two former customers testified that Wharton made mistakes on work that he completed for them. Wharton damaged the door frame in Sandy Tavel's home, and did poor work on a bathroom tile job for Jesse Samm. (Exhibits 308-314.) Both of these jobs were completed sometime prior to Wharton's July 14, 2011 injury; however, he was never written up or disciplined for these jobs prior to his termination. Mr. Handyman also continued to send Wharton out to jobs unaccompanied following the work for these two customers, both before and after his injury.

Wharton admitted that he misrepresented whether he had been previously terminated by another employer on his job application. (Exhibit 304, 306, 307.) He admitted that he had been discharged from employment by a previous employer, Handyman Matters, even though he answered "no" to the question of whether he had ever been discharged by another employer on his paper application. (Exhibit 307.) This issue was never brought to Wharton's attention prior to his termination.

Wharton had never been disciplined by Mr. Handyman prior to his termination, nor had he been warned that his job was in jeopardy. Mr. Handyman had a practice of issuing formal written discipline to technicians about whom Mr. Handyman customers made complaints regarding work performance. Mr. Handyman had issued formal written discipline to other employees, but never issued one to Wharton. Mr. Handyman has no e-mails or other communications criticizing Wharton for his work performance or discussing any complaints from customers. The only communications regarding Wharton concerned his knee injury.


Based upon the above and foregoing Findings of Fact, the Court now ...

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