United States District Court, S.D. Indiana, Terre Haute Division
DAVID L. FOOS, Plaintiff,
TAGHLEEF INDUSTRIES, INC., Defendant
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
DAVID L. FOOS, Plaintiff: Stephanie Lynn Cassman, Robert R.
Foos, LEWIS WAGNER, LLP, Indianapolis, IN.
TAGHLEEF INDUSTRIES, INC., Defendant: Alexander Phillip Will,
Heather L. Wilson, FROST BROWN TODD LLC, Indianapolis, IN.
Jane E. Magnus-Stinson, United States District Judge.
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.
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.
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.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
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
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.
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:
Taghleef Employee Handbook
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 includes medical reports such as
condition reports and causes on illnesses and injuries.
Personal information is never to include genetic information
or family medical
history. Personal information does not include public
information that is lawfully made available to the general
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
* * *
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.
An authorization form is to accompany any release of
protected health medical information by an employee.
* * *
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
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
How the Plan may share the health information with
The Plan, or its health insurer or HMO, may disclose health
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 Act...is 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
* * *
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
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
[Filing No. 70-1 at 285-290.]
Mr. Foos' Employment at Taghleef
Extruder Operator Position
Foos began working as a permanent employee at Taghleef in
2000, 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
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.]
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.]
Mr. Foos' FMLA Leave
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.]
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.
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,