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Foos v. Taghleef Industries, Inc.

United States District Court, S.D. Indiana, Terre Haute Division

September 22, 2015

DAVID L. FOOS, Plaintiff,

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          For DAVID L. FOOS, Plaintiff: Stephanie Lynn Cassman, Robert R. Foos, LEWIS WAGNER, LLP, Indianapolis, IN.

         For TAGHLEEF INDUSTRIES, INC., Defendant: Alexander Phillip Will, Heather L. Wilson, FROST BROWN TODD LLC, Indianapolis, IN.

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         Hon. Jane E. Magnus-Stinson, United States District Judge.

         Presently pending in this employment case are: (1) Plaintiff David Foos' Motion for Summary Judgment, [Filing No. 70]; and (2) Defendant Taghleef Industries, Inc.'s (" Taghleef" ) Cross-Motion for Summary Judgment, [Filing No. 82]. The Court held a hearing on the pending motions on September 11, 2015.


         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.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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).

          " The existence of cross-motions for summary judgment does not, however, imply that there are no genuine issues of material fact." R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, " [p]arties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the non-movant, first for one side and then for the other, may highlight the point that neither side has enough to prevail without a trial." Id. at 648.



         The Court finds the following to be the undisputed facts, as supported by proper citation to admissible evidence in the record and viewed in the light most favorable to Mr. Foos:

         A. Taghleef Employee Handbook

         Taghleef is a leading producer of packaging film for food and nonfood products. [Filing No. 82-1 at 1.] It operates several processing facilities, including one in Terre Haute, Indiana. [Filing No. 82-1 at 1.] Taghleef has an Employee Handbook which, in relevant part, provides:

This Handbook does not create a contract, express or implied, nor may it be construed to constitute contractual obligations of any kind between [Taghleef] and any of its employees.

[Filing No. 70-1 at 166 (emphasis in original).]

Employment at [Taghleef] is at will in nature and may be terminated at any time, either by the employee or [Taghleef] with or without notice or cause. The Company strives to ensure that all employment phases are processed with thoughtfulness, respect, consistency, and legal compliance.

[Filing No. 70-1 at 174.]

Personal Information
* * *
Personal information includes medical reports such as condition reports and causes on illnesses and injuries. Personal information is never to include genetic information or family medical

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history. Personal information does not include public information that is lawfully made available to the general public.
No Company employee is to:
o Share another employee's personal information without documented permission of the other employee.
o Maintain other employees' personal information on any portable computer or storage device.
o Misrepresent another employee's identification to either gain access to or to give out personal information.
o Participate in a session with a vendor if other employee personal information is required to be given out or discussed without signed permission.
Violations of these requirements will likely lead to serious corrective actions.
* * *
Medical files are maintained in a separate locked area.... Access to the information in the files is restricted.

[Filing No. 70-1 at 187-88.]

Health Information Assistance

Medical records are protected under HIPAA

* * *

[Taghleef] benefit plans may share protected health information with each other to carry out treatment, payment, or healthcare functions. Unless otherwise specified, these plans will be referred to as the Plan.
The [Health Insurance Portability and Accountability Act (" HIPAA" )] protects individuals from the unauthorized use or display of protected health information. Although some uses of this information do not need authorization, others require release forms. [Taghleef] is accountable to make employees aware of all of the aspects of HIPAA privacy regulations, including the penalties for committing privacy breaches.

Patient Authorization

An authorization form is to accompany any release of protected health medical information by an employee.

* * *

Written Procedures

HIPAA requires all employers who handle sensitive medical information to enforce proper security procedures. These security procedures prevent information access by unauthorized users. To satisfy HIPAA regulations, a written copy of HIPAA-based procedures contains information on how a company implements HIPAA policies, such as who is responsible for different aspects of security and methods of sharing privacy notices.

* * *

The Plan's duties with respect to personal health information

The Plan is required by law to maintain the privacy of health information and to provide a notice of the Plan's legal duties and privacy practices with respect to an individual's health information. If participating in an insured plan option, there will be a notice directly from the Insurer. It is important to note that these rules apply to the Plan, not [Taghleef] as an employer -- that is the way the HIPAA rules work. Different policies may apply to other [Taghleef] programs or to data unrelated to the Plan.

How the Plan may share the health information with [Taghleef]

The Plan, or its health insurer or HMO, may disclose health information without

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written authorization to [Taghleef] for plan administration purposes.... [Taghleef] agrees not to use or disclose the health information other than as permitted or required by the Plan documents and by law.... In addition, [Taghleef] cannot and will not use health information obtained from the Plan for any employment-related actions. However, health information collected by [Taghleef] from other sources, for example under the Family and Medical Leave not protected under HIPAA (although this type of information may be protected under other federal or state laws).

[Filing No. 70-1 at 252-55.]

Drug and Alcohol Policy
* * *
Consumption: The presence of Drugs and/or Alcohol Impairment when reporting to the Company Workplace or during any Scheduled and Non-Scheduled Work Time is prohibited and will result in employment termination. If alcohol testing reveals the employee is Alcohol Influenced, the employee is sent home without pay and will not be permitted to work until the employee is alcohol free.
* * *


A signed consent form authorizing the collection and testing of urine, blood, breath, hair, or saliva Specimens, and the release of the test results to the Company shall be placed in each employee personnel file. An employee who refuses to sign the consent form or otherwise refuses to submit to testing when requested to do so will be subject to termination of employment.

* * *

Violations of this Policy

* * *

A positive Drug confirmation test or a positive Breath Alcohol Content impaired test will result in separation of employment.
* * *

Reasonable Suspicion Testing

The Company may relieve an employee from the Scheduled Work Time and require the employee to be tested if there is evidence based [on] " reasonable suspicion" that an employee's performance is impaired by drugs or alcohol.

o Suspicion based upon specific personal observations that the Company can describe concerning the employee's appearance, behavior, speech, breath, body odor, attendance, performance, or other physical signs of possible Drug and/or Alcohol use. The overall concern is the fitness for duty and safety of employees and co-employees.
o Suspicion based on the employee violating the Company's rules.

[Filing No. 70-1 at 285-290.]

         B. Mr. Foos' Employment at Taghleef

         1. Extruder Operator Position

         Mr. Foos began working as a permanent employee at Taghleef in 2000,[1] and worked most recently as an Extruder Operator at Taghleef's Terre Haute facility. [Filing No. 71-2 at 19; Filing No. 71-2 at 27-29.] As an Extruder Operator, Mr. Foos operated the extruder, which melts plastic pellets into a flat sheet which is then stretched in an oven. [Filing No. 71-1 at

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2; Filing No. 71-2 at 30.] The extrusion process is described in this way:

Film extrusion is accomplished through the use of heavy equipment that operates at very high rates of speed and at very high temperatures. Foos worked in Tenter 63 where manufacturing temperatures rise to 220-240 degrees Celsius (428 F to 464 F) during the film-making process. Production speeds range from 153 to 202 meters per minute (501 feet to 663 feet per minute). The processing lines contain massive rotating rolls and " in-running nip spots" where the rolls come together. The width of the resulting films is 5.5 meters (18 feet). There are fork lifts and very heavy equipment on the manufacturing floor, and the finished products are wrapped on very large and heavy rolls that are moved around the plant floor. As an Extruder Operator, Foos operated and was exposed to this equipment.

[Filing No. 82-1 at 2.]

         The position of Extruder Operator had certain safety requirements to ensure that Mr. Foos did not injure himself or his co-workers during extruder operation. [Filing No. 71-1 at 2.] Mr. Foos wore safety glasses, steel-toed shoes, gloves, and earplugs while performing his job. [Filing No. 71-2 at 30.] His job responsibilities included checking the process line for unusual or troublesome conditions, troubleshooting line problems, correcting any problems, monitoring and/or reclaiming inventory, and adjusting the process feed as needed. [Filing No. 82-4 at 1-2.] He was also responsible for monitoring film quality, observing and correcting any deviation in production, and identifying nonconforming or off-spec products. [Filing No. 82-4 at 1-2.] His position also required him to comply with all safety standards, perform tasks using appropriate procedures and safeguards to prevent incident or injury, participate in activities established to advance safety performance, address housekeeping issues, and address any " at risk behavior" by other employees. [Filing No. 82-4 at 1.]

         2. Mr. Foos' FMLA Leave

         Linda LeCour is the Health and Wellness Manager at Taghleef, and her primary responsibilities are benefit administration (including short-term disability, family/medical leave, and long-term disability) and organizing health and wellness activities. [Filing No. 70-1 at 7-8.] During his employment at Taghleef, Mr. Foos requested and received continuous leave under the Family Medical Leave Act (" FMLA" ) for pancreatitis for the following time periods:

o October 4, 2009 through October 24, 2009;
o October 25, 2009 through November 19, 2009;
o July 28, 2011 through August 9, 2011;
o September 23, 2011 through October 23, 2011; and
o July 26, 2012 through September 16, 2012.

[Filing No. 82-5 at 11-12.]

         On each of these occasions, Ms. LeCour approved Mr. Foos' FMLA leave. [Filing No. 82-5 at 13.] Additionally, on each of these occasions Mr. Foos returned to work at Taghleef without incident -- to his same position and with the same pay and benefits as before his leave. [Filing No. 82-2 at 110.

         In April 2013, Mr. Foos requested and was granted FMLA leave to recover from a facial fracture and a deviated septum that he received during a fight that occurred at a bar. [Filing No. 82-2 at 39-40; Filing No. 82-2 at 44-45; Filing No. 82-6 at 3-7.] His leave lasted from April 22, 2013 to May 22, 2013, during ...

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