United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E. DeGUILIO, District Judge.
This case arises out of the attempts of Plaintiff Keith Powers to return to his job as a truck driver at USF Holland, Inc. ("Holland"). He has been on medical leave since August 29, 2004. Mr. Powers previously brought a different lawsuit against Holland, which alleged disability discrimination and was disposed of on summary judgment by Judge Van Bokkelen. Powers v. USF Holland, Inc., No. 3:07-CV-246, 2010 WL 558557 (N.D. Ind. Feb. 9, 2010), as modified on reconsideration, 2010 WL 1994833 (May 13, 2010). The Seventh Circuit affirmed the grant of summary judgment. 667 F.3d 815 (7th Cir. 2011) (hereinafter " Powers ").
Beginning in 2010 (while the first case was still pending), Mr. Powers attempted to return to work at Holland again. The new attempt was not successful. In response, Mr. Powers filed this lawsuit, which alleges claims of per se discrimination, disability discrimination, failure to accommodate, and retaliation, all based on the later attempt to return.
Now before the Court is a motion for summary judgment filed by the Defendants, seeking judgment on each of Mr. Powers's claims. [DE 32.] The motion is fully briefed and ripe for decision. For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. [DE 32.]
Holland is a freight transportation company, for which Mr. Powers began working in 1999. There are two types of drivers at Holland's South Bend facility: Combination City Drivers/Dock Workers ("City" drivers) and Linehaul Drivers ("Road" drivers). City drivers make short hauls and remain within a 100-mile radius of the terminal; they also perform dock work, which includes loading and removing freight from trailers with a forklift. Road drivers make longer hauls and travel outside of the 100-mile radius; they may also perform dock work, but typically do so less often than City drivers.
Mr. Powers was a Road driver when he suffered an injury to his back in 2002. He was off work and received workers' compensation benefits for approximately five months. He returned to work in June 2002. In March 2004, Mr. Powers requested to switch from being a Road driver to a City driver. Due to the collective bargaining agreement with the drivers, the switch required the completion of a transfer form (called a Board Switching Request Form). Mr. Powers submitted the form in March 2004 and was transferred to the City driver board.
Mr. Powers began a medical leave of absence in August 2004. In December 2005, he sought to return to work. That attempt was not successful. Mr. Powers attempted to return to work again in May 2007. The second attempt was also not successful and was the subject of Mr. Powers's first lawsuit against Holland. As noted above, that lawsuit was disposed of on summary judgment and the Seventh Circuit affirmed.
In October 2010-after Judge Van Bokkelen had granted summary judgment in the first lawsuit but while the appeal was pending-Mr. Powers contacted the South Bend terminal, again requesting to return to work. In response, Holland sent Mr. Powers a letter, dated October 11, 2011. [DE 35-19 at 11.] The letter stated, in part, that "in order to begin the process we must first receive a release from your treating physician indicating you are able to return and what, if any, restrictions you may currently have." [ Id. ] The letter enclosed an accommodation form to be completed if the doctor determined that Mr. Powers did have current restrictions. The October 11 letter was returned as undeliverable; Holland re-sent the letter to Mr. Powers's then-current address on November 5, 2010. [DE 35-19 at 12.]
The parties agree that on December 17, 2010, Mr. Powers faxed Holland two documents, apparently in response to the November 5 mailing: (1) a report of a Functional Capacity Examination completed on December 9, 2010, by Robert Lee, PT and (2) a Commercial Driver Fitness Determination completed on January 28, 2010, by Dr. Dennis Dalphond (Mr. Powers's treating physician). [DE 39-11.] Holland sent Mr. Powers a follow-up communication on December 23, 2010. [DE 35-19 at 17.] The December 23 letter stated that the information faxed by Mr. Powers was insufficient and requested a release from his treating physician indicating whether he has any current restrictions and, if he did have restrictions, an accommodation form. [ Id. ] The letter also indicated that he may be asked to undergo a "Fitness for Duty" evaluation by the company if his physician indicates he would be able to perform the essential functions of his position with or without an accommodation. [ Id. ]
On January 10, 2011, counsel for Mr. Powers emailed counsel for Holland requesting the job description for Road drivers. [DE 35-20 at 5.] (Previous correspondence had included the job description for City drivers, which was Mr. Powers's last job at Holland.) On January 20, 2011, counsel for Holland provided the requested Road driver job description and reminded counsel for Mr. Powers of the need to submit a request if Mr. Powers wanted to switch back to the Road board. [DE 35-20 at 6-8.]
On February 21, 2011, Mr. Powers faxed a letter to Holland stating "My doctor and I have filled out Holland's paper work that you have requested." [DE 35-20 at 16-17.] However, pages from the fax were missing and counsel for Holland followed-up with counsel for Mr. Powers. [DE 35-20 at 13.] On February 28, 2011, counsel for Mr. Powers submitted the full fax (containing an ADA Accommodation Request Medical Inquiry Form for Healthcare Provider and an Accommodation Request Form), as well as a Board Switching Form requesting to transfer to a Road driver position. [DE 35-20 at 18-26.] The Medical Inquiry Form stated that Mr. Powers suffered from Persistent Lumbar Radiculitis, which impacted his ability to sleep, walk, lift, bend, and perform manual tasks. [DE 35-20 at 21.] It also stated: "As long as restrictions are followed, Mr. Powers can perform all duties" and "If Mr. Powers stays within the restrictions that I have him under - his impairment should not be a factor to perform his duties." [ Id. ] The Medical Inquiry Form did not explicitly state the restrictions put in place by Dr. Dalphond. The ADA Accommodation Form requested the following accommodations: "11 hours driving truck/day. Limited to 8 hours dock work. 4 hours lifting and bending. 6 hours fork lift, 4 hours pallet jack, 14 deck plates lifted (55 gal. barrels by hand or cart) 4 hours dolly cart per day. Plus truck needs to be equipped with air ride suspension cab and seat." [DE 35-20 at 25.]
Holland states that it believed there to be inconsistencies in the information provided by Mr. Powers. Accordingly, counsel for Holland called counsel for Mr. Powers on March 10, 2011, and left a voicemail. [DE 35-20 at 3, ¶ 11.] Counsel for Holland followed-up with an email on March 11, 2011, which stated in part the desire to "discuss with you the additional information that Mr. Powers has provided." [ Id. at 27.] Counsel for Holland has affirmed that she received no response to either the March 10 voicemail or March 11 email [DE 35-20 at 4, ¶ 13] which Mr. Powers does not dispute.
During roughly the same time period, Mr. Powers claims to have called either Stacey VandeVusse or Kurt Kopczynski, both of whom are Holland employees. He testified at deposition that the phone call occurred either one or two months after he submitted the last of the documentation and the board switching form. [DE 39-1 at 29, 31.] Mr. Powers testified that he could not remember the words exactly, but that whoever he spoke to said "they would have to get back to me on that, they're not sure what's up, they were going to check and see what was going on." [ Id . at 29] Mr. Powers did not recall any later communication with either Ms. VandeVusse or Mr. Kopczynski. [ Id. at 31.] For their part, both Ms. VandeVusse and Mr. Kopczynski testified at deposition that they did not have any contact with Mr. Powers during the time he alleges his phone call was made. [DE 39-3 at 16, 18; DE 39-4 at 3.]
The parties agree that Mr. Powers has not returned to work at Holland, either as a City or Road driver. In October 2011, Mr. Powers filed an EEOC Charge of Discrimination. He received a right to sue letter in May 2012 and filed this lawsuit in August 2012.
II. Standard of Review
On summary judgment, the burden is on the moving party to demonstrate that there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). That means that the Court must construe all facts in the light most favorable to the nonmoving party, making every legitimate inference and resolving every doubt in its favor. Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). A "material" fact is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" exists with respect to any such material fact, and summary judgment is therefore inappropriate, when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. On the other hand, where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party, as well as draw all reasonable and justifiable inferences in his favor. King v. Preferred Technical Grp., 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving party cannot simply rest on the allegations or denials contained in its pleadings, but must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).
A. Mr. Powers's Complaint Does Not Raise Any Issues Barred by Res Judicata
As an initial matter, Defendants argue that there is a preclusive effect by the Seventh Circuit's earlier Powers decision "[t]o the extent Powers relies on any facts prior to the May 7, 2007 filing of his first lawsuit against Holland." [DE 34 at 4.] They argue that any claims based on those facts were either actually raised or could have been raised in the first lawsuit and therefore may not be asserted in this lawsuit under the doctrine of res judicata.
"Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Cannon v. Burge, 752 F.3d 1079, 1101 (7th Cir. 2014) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). In order to establish res judicata or claim preclusion, the party asserting preclusion must show: "(1) identity of the claim, (2) identity of [the] parties, which includes those in privity' with the original parties, and (3) a final judgment on the merits." Ross ex rel. Ross v. Bd. of Educ. of Twp. High Sch. Dist. 211, 486 F.3d 279, 283 (7th Cir. 2007). "In order to decide whether the two cases involve the same claim, [the Court asks] whether they arise out of the same transaction. If they did, whether or not they were actually raised in the earlier lawsuit, they may not be asserted in the second or subsequent proceeding." Id. However, "claim preclusion generally does not bar a subsequent lawsuit for issues that arise after the operative complaint is filed." Ellis v. CCA of Tenn. LLC, 650 F.3d 640, 652 (7th Cir. 2011).
While Defendants cite these general standards of claim preclusion, they do not seem to argue that this suit actually arises from the same transaction as Mr. Powers's earlier suit. Instead, they argue that "any action by Holland prior to May 7, 2007 cannot be used to bootstrap Powers' current allegations of discrimination." [DE 34 at 4.] But the Defendants don't cite any law for the proposition that the plaintiff is barred from relying on facts at issue in an earlier suit to infer the discriminatory intent of later adverse actions. And the Court is not aware of such authority. Accordingly, that argument is waived. See Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008) (citing Heft v. Moore, 351 F.3d 278, 285 (7th Cir. 2003) ("The failure to cite cases in support of an argument waives the issue...")).
To the extent that the Defendants are arguing this suit arises out of the same transaction as the earlier suit, the Court does not read Mr. Powers's complaint to challenge any of the adverse actions of Holland that occurred prior to his 2010 attempt to return to work at Holland. [ See DE 1 at ¶ 31 ("Powers complains of YRC-Holland not allowing him to return to work during 2010 because of his record or impairment and/or YRC-Holland perceived Powers to be disabled.").] Mr. Powers confirms the scope of his current lawsuit in his response to the summary judgment motion. [DE 38 at 10 ("The Plaintiff's Complaint alleges that Holland violated the ADAAA by abandoning the interactive process to provide Powers accommodated work, failing to return Powers to work as a LH driver, and awarding the open and available positions to non-disabled employees, hiring 13 others since receiving Powers' accommodation request on February 28, 2011. Plaintiff also alleges Holland retaliated against him by failing to engage in an interactive process to consider Powers' accommodation request because of his engagement in protected activities.").] Each of these alleged events arose after the filing of the complaint at issue in the first Powers decision; accordingly, the Court finds that the claims in this case do not arise from the "same transaction" as Mr. Powers's earlier lawsuit and thus are not barred by res judicata.
In a footnote, Defendants raise the separate question of whether Mr. Powers is barred by the doctrine of collateral estoppel or issue preclusion from relying on any facts that occurred before May 7, 2007. [DE 34 at 4 n.1.] In support of that argument, Defendants assert that the Seventh Circuit's Powers decision concluded that no "discrimination occurred prior to that date." [ Id. ] However, that question is not properly before the Court. See N.D. Ind. L.R. 56-1(e) ("Any dispute regarding the admissibility of evidence should be addressed in a separate motion in accordance with L.R. 7-1."). Moreover, the Defendants fail to identify the specific facts the Plaintiff should be barred from relying on, nor do they analyze how such facts were "essential to the final judgment" in the initial Powers decision. See Adams v. City of Indianapolis, 742 F.3d 720, 736 (7th Cir. 2014) (stating one element of collateral estoppel is that "the determination of the issue must have been essential to the final judgment" in the earlier litigation.). Accordingly, the Court declines to address, at this time, the potential preclusive effects on the issues addressed in the Powers decision.
B. ADA Claims
With that preliminary issue addressed, the Court turns to Mr. Powers's claims under the ADA. Mr. Powers asserts four such claims: per se discrimination, disability discrimination, failure to accommodate, and retaliation. Each will be addressed, in turn, below. However, Defendants raise one issue which affects the analysis of several of the claims: whether Mr. Powers is disabled. Because that question is a threshold one for many of the ADA claims at issue, the Court addresses it first.
1. Qualified Individual with a Disability
In order to benefit from the ADA, Mr. Powers must establish that he is disabled. A plaintiff may show that he is disabled by showing that any of the following three factors are present: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an ...