United States District Court, N.D. Indiana, South Bend Division
JAMES T. MOODY, District Judge.
Defendant AM General, LLC, is a manufacturer of vehicles, specifically Hummer vehicles (H1s and H2s) and the military HMMWV (commonly called a "Humvee"). (DE #41-1 at 3, Varga Dep. 7-8.) Defendant operated two plants during the time relevant to this lawsuit, commonly referred to as the HMMWV plant and the H2 plant. ( Id. )
Plaintiff Danny Wilder was originally hired at defendant's H2 plant in 2001 as a welder in the body shop. (DE #35-4, Pl. Dep. 46:8-21, DE #41-1 at 8, Varga Dep. 29:6-12, 32:20-21.) He changed positions several times, ultimately taking a position as a paint tech in 2003. (DE #41-1 at 9, Varga Dep. 33:3-9.) During his tenure at defendant's company, plaintiff belonged to the United Auto Workers, Local 5 ("the Union"), which had a collective bargaining agreement with defendant. (DE #41-1 at 4, Varga Dep. 10.) According to the collective bargaining agreement, if employees were laid off from the H2 plant, they could be preferentially hired into the HMMWV plant if they were qualified to do the work. ( Id. at 6, Varga Dep. 19:1-5.)
In June of 2002, plaintiff filed an injury report with defendant, indicating that he had been experiencing pain in his hands and wrists for about a month. (DE #35-4 at 30, 33, Pl. Dep. 57:10-12, 60:7-13.) After seeing a few doctors and being placed on temporary restrictions several times, he continued to experience symptoms. (DE #35-4 at 35-36, 38-39, 56-57, Pl. Dep. 65-66, 81, 83, 160-61.) On November 13, 2002, Dr. William Dodson placed plaintiff on permanent restrictions, specifically that plaintiff use a splint with functional activities and avoid strong, repetitive grasping activities with the right hand (i.e., activities with a frequency of greater than one every 30 seconds and a force greater than approximately 16 lbs. of grip strength). ( Id. at 44-46, 57, Pl. Dep. 98-100, 161; DE #35-4 at 67-68.) Dr. Dodson was apparently an associate of Dr. Joan Syznal, one of the doctors that defendant utilized to treat Workers' Compensation injuries. ( Id. at 5, Varga Dep. 13:1-15.) In 2006 and 2007, plaintiff asked Dr. Szynal to remove his restrictions several times, but each time she declined to do so after performing electrodiagnostic tests that she believed indicated the continued existence of carpal tunnel syndrome. (DE #35-4 at 47-48, 51; Pl. Dep. 107-108, 112; DE #35-5.)
In August of 2008, plaintiff was laid off from the H2 plant as part of a large reduction in volume. ( Id. at 9, 14, Varga Dep. 33:25, 54:22-25, 55:1.) Also in August of 2008 (though it is unclear whether before or after the layoff), plaintiff saw a different doctor, Dr. John Stavrakos. (DE #35-6 at 8-9, Stavrakos Dep. 12-13.) After examining plaintiff, Dr. Stavrakos concluded that "there was electrodiagnostic evidence of a right carpal tunnel syndrome, moderate in severity." ( Id. at 9, Stavrakos Dep. 14:13-15.) Nonetheless, Dr. Stavrakos sent plaintiff with a letter indicating that he could return to work without restrictions. ( Id. at 8, Stavrakos Dep. 13:8-11.)
After Varga was contacted by the Union regarding Stavrakos's letter, Varga contacted Dr. Syznal seeking her opinion on the matter. (DE #41-1 at 11, Varga Dep. 44:5-10.) On December 18, 2008, Dr. Syznal responded to Varga that, given some of the data gathered by Dr. Stavrakos, plaintiff's condition was actually worse than it was in November 2007. (DE #35-2 at 60.) Accordingly, Dr. Szynal recommended maintaining plaintiff's restrictions. ( Id. ) Based on this recommendation, Varga informed the union that defendant would not remove plaintiff's restrictions. (DE #41-1 at 11, Varga Dep. 44:16-20.)
Beginning in August of 2008, the same month as the layoff, defendant began rehiring some laid-off employees. ( Id. at 14, Varga Dep. 55:2-5.) Rehires had to meet certain attendance criteria and be physically able to perform the available jobs. ( Id. at 14, Varga Dep. 55:15-17.) Some preferential hires also took place in December of 2008. ( Id. at 14-15, Varga Dep. 56:24-25, 57:1-2.)
In February of 2009, plaintiff saw Dr. Ron Clark, an orthopaedic surgeon. (DE #35-7 at 16, Clark Dep. 63.) Dr. Clark wrote a letter indicating that plaintiff had no indications of carpal tunnel syndrome and had no restrictions on physical activity. (DE #35-2 at 62.) He also noted that plaintiff was at risk for recurrence should his physical activity level change significantly. ( Id. ) Defendant's director of employee relations, Jill Varga, received the letter at some point thereafter (DE #35-2 at 23, Varga Dep. 42), and the parties appear to agree that plaintiff's restrictions were not lifted as a result.
On March 2, 2009, another round of preferential hiring began. ( Id. at 15, Varga Dep. 57:3-5.) For the next two or three weeks in March, a number of preferential hires were made. ( Id. at 15, Varga Dep. 57:18-22.) In late March of 2009, defendant prepared to fill positions for conveyor tenders in the paint department. ( Id. at 15, Varga Dep. 58:9-16.) Because it did not require gripping, this type of job was ideal for workers like plaintiff with limited abilities. ( Id. at 15-16; Varga Dep. 58:9-16, 60:22-25, 61:1-5.) However, because it was a non-temporary position (a job predicted to last more than 30 days), the collective bargaining agreement between defendant and the Union required that the job be posted internally for employees to bid on and could not be offered to former employees like plaintiff. ( Id. at 15, Varga Dep. 60:2-16.) The Union could have agreed to make the job "temporary" for a longer, 60-day period, and then the job would not have to be posted internally, but the Union did not agree to do so in this instance. ( Id. ) Accordingly, the conveyor tender jobs were posted internally at the company, and the positions were filled by people that were already within the system. ( Id. at 19, Varga Dep. 83:4-9.) Defendant admits it rehired other employees after late March, including Gary Pyneart, who was rehired June 8, 2009 ( id. at 18, Varga Dep. 77:15-20), James Knafel, who was preferentially rehired June 14, 2009, as a skilled trades journeyman ( id. at 18, Varga Dep. 77:22-25), and Gary Hamilton, who was rehired September 14, 2009, as the result of an arbitrator's award ( id. at 18, Varga Dep. 78:3-6.)
On July 23, 2009, the Union sent Varga a letter requesting that defendant pay for another doctor to examine plaintiff and assess his condition. (DE #35-2 at 63.) In an email dated July 31, 2009, Varga informed a Union representative that the request would be denied because defendant was under no contractual obligation to provide an additional physician's opinion. ( Id. at 64.) On August 21, 2009, the Union filed a formal grievance regarding the refusal of an additional physician's examination. ( Id. at 65.) At a second-step grievance meeting on February 3, 2010, defendant denied the grievance. (DE #41-1 at 14, Varga Dep. 54:1-15.)
In May of 2010, a recall occurred. (DE #41-1 at 19, Varga Dep. 81:1-3.) Although the parties point to few facts related to this recall, it appears that plaintiff was not recalled, nor does he appear to take issue with the fact that he was not recalled at this time. Varga recalled that, in November of 2010, the company considered hiring employees back to the H2 plant, and plaintiff would have been a contender had that happened. ( Id. at 17, Varga Dep. 65:12-21.) However, the program the company was going to use to build vehicles was delayed until August of 2011. ( Id. at 18, Varga Dep. 79-80.)
In January of 2011, defendant offered plaintiff the opportunity to return to work for a two-week cleaning job at the H2 plant. (DE #35-4 at 12-13, Pl. Dep. 19-20.) Plaintiff turned down the offer, believing he had the right to turn down two jobs before defendant would be entitled to refuse to offer him any further positions. ( Id. ) The next recall occurred in August 2011, at which time plaintiff returned to work for defendant. ( Id. at 17, 18, Varga Dep. 68:18-20, 79:21-25.)
On January 18, 2010, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging disability discrimination. (DE #35-4 at 61-62.) After being issued a right-to-sue letter by that agency, plaintiff filed the present lawsuit. (DE #1.) Defendant has moved for ...