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George v. Utility Trailers of Indianapolis, Inc.

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

October 31, 2014

MARK GEORGE, Plaintiff,
UTILITY TRAILERS OF INDIANAPOLIS, INC. d/b/a Utility Peterbilt, Defendant.



This cause is before the Court on Defendant Utility Trailers of Indianapolis, Inc. d/b/a Utility Peterbilt's Motion for Summary Judgment [Dkt. No. 55 (brief at Dkt. No. 56).] For the reasons detailed herein, Defendant's Motion is DENIED.

Factual Background and Undisputed Facts

The following is a summary of the facts supported by admissible evidence and viewed with reasonable inferences in favor of Plaintiff Mark George.

Mr. George's Employment and Positions at Utility Trailers.

Plaintiff Mark George worked at Utility Trailers in its Indianapolis location for over twelve years. [George Dep. at 21-22, 49.] Mr. George first began working for Utility Trailers in 1993, left to pursue other employment on several occasions, and most recently began working for Utility Trailers again in January 2005. [ Id. at 21-22, 26-28, 42-45] Mr. George was hired to work as a Service Writer in the Service Department on the Second Shift (3:30 pm to midnight) under the direction of Howard Elmore. [ Id. at 31, 43.] Prior to his January 2005 start, Mr. George received a new hire packet from Mr. Elmore, which included an employee handbook. [ Id. at 73-74.] Mr. George signed a receipt indicating that he had received the handbook. [George Dep. at 77-78, Ex. 1.] Mr. George also received a copy of the Family and Medical Leave Act ("FMLA"), which he acknowledged in writing. [ Id. at 89-90, Ex. 3.] Mr. George did not retain a copy of the new hire packet and neither did Utility Trailers. [ Id. at 72-73; Dkt. No. 56-2 (Supplemental Declaration of Steve Riddle) at ¶ 7.]

Defendant contends that an authentic copy of the employee handbook given to Mr. George was submitted as Exhibit C. [Dkt. No. 56 at 3.] Although Mr. George does not recall reading the handbook, Plaintiff contends that inconsistencies exist between the signature pages admittedly containing Mr. George's signature and Exhibit C that make Exhibit C unreliable and unlikely the same employee handbook given to Mr. George. [George Dep. at 82-83 (does not recall reading handbook); Dkt. No. 59 at 21-22.]

When Mr. George returned to work at Utility Trailers in 2005, he had a permanent twenty-pound lift restriction as a result of back surgery and recurring pain, which prohibited him from lifting anything over twenty pounds. [George Dep. at 62-63, 95.][1] Mr. George communicated this lifting restriction to Mr. Elmore and to Debbie Brennan, the Utility Trailers' Human Resources Director. [ Id. at 63.] The Service Writer position wrote up information on trucks, took customer complaints, wrote work orders, scheduled trucks for service, billed customers, collected monies, advised customers of work in progress and took care of shop needs. [ Id. at 43.] Mr. George worked in this position for approximately two and a half years. [ Id. at 46-47.]

In 2007, Mr. George transferred from the Service Department to the Parts Department and took a First Shift position working behind the parts counter from 7:00 am to 3:30 pm. [George Dep. at 23, 48.] In the Parts Department, heavy parts were moved with a forklift or a two-wheel cart. [Steve Riddle Dep. at 16.] Utility Trailers encouraged employees to get help lifting heavy objects regardless of whether they were subject to a lifting restriction. [George Dep. at 92.] Mr. George always had assistance lifting heavy parts and was able to do all of the essential elements of the job without violating his twentypound lifting restriction. [ Id. at 67.]

Mr. George's March, 2010 Ladder Accident.

On March 24, 2010, Mr. George fell off a ladder at work and sustained injuries, aggravating his preexisting back injury. [George Dep. at 95, Ex. 4.] Dwayne Johnson, the Warehouse Manager, witnessed the fall and promptly informed Ms. Brennan about the accident. [ Id. at 97-98.] Ms. Brennan came to the scene of the accident and decided that Mr. George needed to go to Prompt Care immediately. [ Id. at 98.] Ms. Brennan drove Mr. George to Prompt Care and waited while he was treated. [ Id. at 98-99.]

After the accident, Mr. George went to his treating physician, Dr. Spomar. [George Dep. at 127.] Dr. Spomar had performed Mr. George's previous back surgery in November 2009. [ Id. at 94 127.] Dr. Spomar prescribed several weeks of extensive physical therapy for Mr. George and ordered him to stop working entirely. [ Id. at 127, 96, 98, 100-01, 158-59.] Within two days following the ladder accident, Mr. George delivered Dr. Spomar's paperwork to Ms. Brennan. [ Id. ] The parties dispute whether Mr. George sought leave while he was unable to work. Mr. George claims that he asked Ms. Brennan if he should have FMLA leave, and Ms. Brennan instructed him that he did not need it for this particular accident and responded that "[b]ecause you're only going to be gone a few weeks, you should be fine." [ Id. at 9, 126.] Defendant claims that Mr. George "never asked for leave, of any kind, during this time" and that Ms. Brennan "did not have any reason to believe that the FMLA was implicated." [Dkt. No. 56 at 7 (citing George Dep. at 127, 137, 9, 128) ("Q. After your ladder fall in 2010, ... in your conversations with Debbie did you ever actually ask for FMLA leave specifically? A. No. Q. Did you ever ask for a leave at all? A. No.").] Defendant's termination letter to Mr. George specifically referenced Mr. George's "leave of absence." [George Dep. at 101, Ex. 4.]

On April 9, 2010, approximately two weeks after the ladder accident, Mr. George contacted Ms. Brennan to see if his position would be left open until he was released to work on June 2, 2010. [Riddle Dep. at 30.] On April 12, 2010, Ms. Brennan sent an email to Nammy Eskar, Utility Trailers' General Manager, updating him on Mr. George's condition. [Riddle Dep. at Ex. 3.] In response, Mr. Eskar wrote to Ms. Brennan that she should "[t]ell him the only option open for him is 11-8 shift." [ Id. ]

The parties dispute whether Mr. George rejected Utility Trailers's 11-8 shift offer or whether that offer was rescinded. Mr. George claims that on April 14, 2010, Mr. Elmore called Mr. George to offer him the Service Writer, Second Shift position upon his return (despite that Mr. George was working a Counter Parts position on the First Shift prior to the ladder accident). [George Dep. at 52, 57, 39-40.] Mr. George alleges that Mr. Elmore told him he had until Friday to make his decision on the job offer. [ Id. at 50-51.] Mr. George claims that he went to Utility Trailers to accept the position on Friday and was informed by Mr. Elmore that the offer was taken off the table. [ Id. at 59, 51.] Defendant claims that Mr. George rejected the Second Shift position because it interfered with his lawn care business. [Riddle Dep. at 24.][2]

Mr. George's Termination from Utility Trailers.

On May 27, 2010, Utility Trailers sent Mr. George a letter informing him that "during your leave of absence we had to fill your job position due to the fact we did not have enough personnel to cover the front counter. If you are completely released from your doctor wherein you can do manual labor, (lifting, etc.), you may reapply for a position within the parts department if one is available." [George Dep. at 101, Ex. 4.] At that time, Ms. Brennan retroactively cancelled Mr. George's health insurance benefits effective March 31, 2010. [Pltf. Ex. 6.]

After receiving the May 27, 2010 letter, Mr. George called Ms. Brennan to inquire about the termination and available positions. [George Dep. at 107-08.] Plaintiff alleges that Ms. Brennan "informed George that the Company now had a thirty-pound lifting requirement for all positions." [Dkt. No. 59 at 8 (citing George Dep. at 107-08, 152).] Defendant disputes this, stating that "Utility Trailers had a 30-pound lift requirement for the parts counter position for decades prior to the move of Plaintiff into the position in 2007 or 2008." [Dkt. No. 56 at 6 (citing Riddle Supp. Dec. at ¶ 9).] Defendant claims that a lifting test is required at the time of hiring, although Mr. George does not recall ever taking a lift test. [ Compare Pltf. Ex. 3, Riddle Dep. at 18 with George Dep. at 107-08.]

Mr. George alleges there were between six and seven employees working in the Parts Department at the time of his termination. [George Dep. at 110.] Defendant, on the other hand, alleges that it did not have "a lot of excess personnel which could cover the parts counter over an extended period of time." [Dkt. No. 56 at 7 (citing Riddle Supp. Dec. at ¶ 10).]

Mr. George did not reapply at Utility Trailers after he was released to return to work on June 2, 2010. [George Dep. at 110-11, 122-23, 125, 187.] Mr. George did not call the company about any open positions after June 2, 2010. [ Id. at 110-11, 123.]

Standard of Review

Summary judgment is appropriate when the record shows 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist, the Court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. Id. at 255. However, neither the "mere existence of some alleged factual dispute between the parties, " Id., at 247, nor the existence of "some metaphysical doubt as to the material facts, " ( Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)) will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).

The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The party seeking summary judgment on a claim on which the non-moving party bears the burden of proof at trial may discharge its burden by showing an absence of evidence to support the non-moving party's case. Id. at 325; Doe v. R.R. Donnelley & Sons, Co., 42 F.3d 439, 443 (7th Cir. 1994). Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). But, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case, summary judgment is not only appropriate, but mandated. Celotex, 477 U.S. at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one essential element "necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323.

The summary judgment standard is applied rigorously in employment discrimination cases, because intent and credibility are such critical issues and direct evidence is rarely available. Seener v. Northcentral Technical Coll., 113 F.3d 750, 757 (7th Cir. 1997); Wohl v. Spectrum Mfg., Inc., 94 F.3d 353, 354 (7th Cir. 1996). To that end, we carefully review affidavits and depositions for circumstantial evidence which, if believed, would demonstrate discrimination. However, the Seventh Circuit has also made clear that employment discrimination cases are not governed by a separate set of rules, and thus remain amenable to disposition by summary judgment so long as there is no genuine dispute as to the material facts. Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997).

Legal Analysis

1. The Existence and Enforceability of an ...

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