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Guernsey v. City of Lafayette

United States District Court, N.D. Indiana, Lafayette Division.

August 12, 2016



          Rudy Lozano, Judge

         This matter is before the Court on the Defendant’s Motion for Summary Judgment, filed by Defendant City of Lafayette (“City”) on May 11, 2015 (DE #31), and Plaintiff Phillip Guernsey’s (“Guernsey”) Motion for Summary Judgment on Defendant’s Liability under Count 3, filed on May 11, 2015 (DE #33). For the reasons set forth below, the City’s motion for summary judgment (DE #31) is GRANTED, and Guernsey’s motion for summary judgment (DE #33) is DENIED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE.


         On February 1, 2013, the City terminated Guernsey’s employment as a laborer in its Street Department, stating that its decision was based on Guernsey’s history of taking excessive amounts of sick leave. Guernsey filed this action against the City, asserting that he was wrongfully terminated in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), 29 U.S.C. § 1161 et seq. The City denies that Guernsey’s termination was wrongful, or that it violated the ADA, FMLA, or COBRA. Both the City and Guernsey filed motions for summary judgment. The motions have been fully briefed and are ripe for adjudication.


         Summary judgment must be granted when “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). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. To determine whether a genuine dispute of material fact exists, the Court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

         A party opposing a properly supported summary judgment motion may not rely on allegations in his own pleading but rather must “marshal and present the court with the evidence [he] contends will prove [his] case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying on mere speculation or conjecture will not suffice.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the nonmoving party fails to establish the existence of an essential element on which he bears the burden of proof at trial, summary judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).


         Guernsey began working as a laborer in the City’s Sanitation Department in 1984. In 1985, he was pinned between a sanitation truck and a building, which injured his lower back. Over the next few years, Guernsey had several other on-the-job injuries, including injuries to his back and knee, for which he received treatment under workers compensation. In 1990, doctors recommended that Guernsey be reassigned to another position because his knee pain was aggravated by the high steps required to collect trash. The City reassigned Guernsey to the Street Department, where he worked as a laborer for approximately three years. Guernsey requested and received a transfer to the Fleet Maintenance Department, but after Guernsey “missed a couple of days” of work, the department supervisor transferred Guernsey back to the Street Department. (DE #34-16 at 9.)

         Guernsey’s job duties as laborer in the Street Department included picking up brush, leaves, and large items, and patching and paving streets. The job required that Guernsey be on-site to perform his duties; it could not be performed from his home. Guernsey testified that he was able to perform his duties as laborer, even with his prior injuries. He never told his supervisors that he could not perform a job assignment. He admits that while he “never turned down a job assignment, ” he “would sometimes need a short time off work if [he] overexerted [himself], in order to recover.” (DE #41 at 5.) Each day, the Street Department supervisors prepared a list of job assignments to be completed the following day, and assigned employees to those assignments. Whenever Guernsey called in sick, the supervisor would “switch people around, ” and other employees would “cover” his job assignments. (DE #34-16 at 21.)

         Guernsey’s Injuries

         Between 1990 and 2012, Guernsey reported twelve on-the-job injuries, including injuries to his back and knee, which were all treated under workers compensation. By the mid-1990s, Guernsey had been diagnosed with chronic knee, shoulder, and back pain, degenerative disc disease, spurring in the spine, and narrowing of the spine. These conditions limit his ability to walk long distances, run, lift, stand, bend, stoop, and climb stairs. Guernsey’s position as laborer did not require him to climb stairs or walk long distances. His position occasionally required him to stoop, lift, bend, or sit or stand for long periods of time. Guernsey admits that he never had a problem with completing his job duties even when they included stooping, bending, lifting, or standing for a long period of time. Guernsey experienced back soreness almost every time after he worked the blacktop machine, and every time after he sealed cracks in the street. He also experienced soreness in his back and shoulder after collecting bags of grass clippings. Guernsey had no way to predict which days he would need to call in sick because of soreness.[1]

         The last injury Guernsey reported to the City was in May 2012. Guernsey took off work from May 1, 2012, to July 16, 2012, for a knee injury he had incurred in November 2011. On July 16, 2012, Guernsey’s doctor reported that Guernsey had “excellent motion, excellent stability, excellent tracking, and excellent strength, ” and released him to return to “[f]ull activity with no limitations” with “no need for follow up.” (DE #34-18.) Guernsey did not advise the City of any restrictions, limitations, or health conditions between July 16, 2012, and February 1, 2013.

         On October 9, 2012, Guernsey underwent a magnetic resonance imaging (“MRI”) scan on his lumbar spine. The MRI report dated October 10, 2012, indicates mild to moderate degenerative changes to Guernsey’s lumbar spine. (DE #41 at 9-10.)

         Sick Leave

         The City’s Personnel Policy Manual (“City handbook”) states that sick leave is a benefit provided “to protect against loss of income during periods of illness/injury.” (DE #34-25 at 2.) Regular full-time employees accrue one sick day per month for a maximum of 36 days. The City handbook explains that “[p]atterns of sick leave usage immediately prior to or subsequent to holidays, vacations, days off and/or weekends, as well as excessive sick leave usage may result in sick leave denial and appropriate disciplinary action.” (Id. at 3.)

         Guernsey has a history of sick leave use. In 2009, Guernsey called in sick 11 times, ten of which were around a weekend or vacation day. In 2010, he called in sick 13 times, six of which were around a weekend or vacation day. In 2011, he called in sick 15 times, 13 of which were around a weekend or vacation day. In 2012, he called in sick 11 times, seven of which were around a weekend or vacation day. (DE #34-17 at 3.) Between 2003 and 2012, Guernsey used an average of 13.3 sick days per year, while all other Street Department employees used an average of 5.6 days per year. (Id. at 2.) From 1995 to 2011, Guernsey was reprimanded 12 times for excessive absenteeism and/or improper use of sick leave. Guernsey never exceeded his allotted sick leave.

         Guernsey attests that he has chronic conditions that cause him to suffer short-term incapacity from time to time, and for which he periodically sees a health provider. During the last two years of his employment with the City, most of the instances in which Guernsey called in sick were related to his “back issues.” (DE #41 at 4.) When he took sick days, Guernsey told his supervisor that he was having “back problems.” (Id.) When Guernsey visited a doctor on one of his sick days, he took a doctor’s note to work. The doctor’s notes did not indicate why Guernsey was seen by the doctor or what treatment was provided. Guernsey did not provide the City with additional information, even when his supervisor requested it, “because of the HIPAA laws.” (DE #34-16 at 29.) Guernsey understood that, “[u]nless it’s a work-related injury[, ] your work don’t need to know what is wrong with you.” (Id. at 28.)

         FMLA Leave

         During Guernsey’s employment, “The Federal Complete Compliance Poster” was posted inside the Street Department garage. The poster included information about the FMLA and other federal employment-related statutes. The poster’s “Use of Leave” section states in part that “[a]n employee does not need to use [the FMLA] leave entitlement in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary.” (DE #34-9.) The City handbook mentions seeking “intermittent leave” under the FMLA, but does not address how such leave is to be used. (DE #41 at 18.)

         Guernsey applied for FMLA leave twice while employed by the City. In 2003, he requested and received FMLA leave due to his wife’s hospitalization.[2] In 2004, he requested and received FMLA leave due to a wrist injury. Guernsey never requested FMLA leave for chronic pain issues. The City never inquired as to whether Guernsey might qualify for FMLA leave to address his absences.


         On January 16, 2013, Guernsey texted his supervisor that his back was “still bothering” him and that he wanted to take a vacation day. (DE #34-4.) Guernsey’s request to take this sick day prompted the Street Department’s operations manager to review his absences. The operations manager determined that Guernsey had received repeated warnings related to his absenteeism and had used more sick leave than any other Street Department employee, and that the majority of his sick days were around a weekend or scheduled vacation day. (DE #34-22 at 1.) The City did not investigate to see what Guernsey was doing during his sick days, nor did it deny him the requested leave or require him to submit additional proof of his need for time off.

         On February 1, 2013, the City terminated Guernsey’s employment based on “improper uses of sick leave, ” “[f]ailures to follow established work procedures and policies, ” and “incident[s] or circumstance[s] which will prevent an employee from being able to fulfill all of his/her duties.” (DE #34-21 at 1.) At the meeting informing Guernsey of his termination, the City provided Guernsey with a summary of the incidents, his prior work and disciplinary history, and statistics supporting its conclusion regarding his use of sick leave. Guernsey did not respond with any reason or explanation for his use of sick days at that time. The City did not give Guernsey an exit interview after his termination.

         Guernsey challenged his termination of employment, which prompted the Board of Works to hold a grievance hearing. At the hearing, Guernsey’s union representative argued that that Guernsey would have taken FMLA leave if he had known he could take it intermittently. The City responded that Guernsey was aware of the FMLA process because he had requested FMLA leave in the past, and that the City did not have information to ...

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