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Newman v. Gagan LLC

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

September 22, 2016

JAMES NEWMAN, Plaintiff/Counterclaim-Defendant,
v.
GAGAN, LLC, and THINK TANK SOFTWARE DEVELOPMENT CORP., Defendants/Counterclaimants.

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN, UNITED STATES DISTRICT JUDGE.

         Following his employment termination in June 2011, Plaintiff James Newman sued three Gagans: Gagan, LLC, Laurie Gagan, and James Gagan, Jr.[1] Plaintiff also sued Think Tank Software Development Corporation. Plaintiff's only remaining claims are for violations of the Americans with Disabilities Act, as amended, and for wrongful discharge in retaliation for pursuing worker's compensation. Defendants Gagan and Think Tank responded with counterclaims for breach of an employment agreement, breach of a confidentiality agreement, conversion, and computer trespass.

         The parties traded motions for summary judgment.

         A. Facts

         When considering motions for summary judgment, the Court views the facts in the light most favorable to the non-moving party. Here, that light shifts because all remaining parties moved for summary judgment.

         The Court's Opinion and Order entered on March 28, 2013, summarizes the allegations in Plaintiff Newman's complaint. (DE 38.) The Court now presents a brief summary of the facts, synthesizing the complaint, counterclaims, and summary judgment briefing.

         Before his employment at Gagan and Think Tank, Newman suffered from ADHD, anxiety, and depression, for which he took prescribed medications.

         Newman entered into an Employment Agreement and Confidentiality Agreement with Gagan, and Think Tank in May 2010. Newman served as an “Accounting Business Analyst.” In the early, halcyon days, Newman intended to remain with the “Gagan Family of Companies” until retirement. (Compl., DE 1, ¶ 17.) As early as July 6, 2010, Newman occasionally worked remotely for Defendants. (Pl.'s App., DE 90, ¶ 68.) Newman claims Defendants authorized him to use Microsoft Outlook remotely, which automatically saved to his personal computer a copy of all work-related emails sent to or received by Newman. (Id. at ¶¶ 69, 86.) Defendants dispute this. (Defs.' Br. Supp. Mot. Summ. J., DE 93, ¶¶ 75-77.)

         In January 2011, Newman slipped and fell and injured his left leg. Defendants allowed Newman to go on an unpaid leave of absence to heal. (Id., ¶ 28.) He made a claim with Gagan's worker's compensation insurance provider regarding this injury. He claims he performed essential functions of his accounting position from home from January through March 2011. (Pl.'s App., DE 90, ¶ 50.) In March 2011, Newman told Laurie Gagan that he and his family would travel to the United Kingdom for two weeks.

         The doctor released Newman to return to work with restrictions on April 18, 2011. Newman claims he asked for accommodation of these medical restrictions. (Compl., DE 1, ¶ 23.) CNA (which was paying Newman temporary total disability benefits) set an accommodation meeting between Newman and Gagan for April 18, 2011. But, according to Newman, Jim Gagan cancelled it after Defendants learned Newman had retained legal counsel. (Pl.'s App., DE 90, ¶¶ 34-36.) Newman claims Defendants refused to accommodate him. (Compl, DE 1, ¶ 27.)

         Around June 8, 2011, Defendants informed Newman they had eliminated his position, and placed him on a leave of absence. Defendants retained their other accountant, Jennifer Jimenez. Defendants said they would consider him for future openings once his doctor “fully released” him to return to work. (Id. ¶ 29.) According to Defendants, Gagan's business declined from 2010 until the company closed in 2014. (Defs.' Br. Supp. Mot. Summ. J., DE 93, ¶ 52.)

         Newman returned to work around June 21, 2011, as an “Assistant Marketing Room Manager, ” with a decreased rate of pay. Newman did not have managerial duties in the marketing room, but worked as a telemarketer. Newman claims he performed satisfactorily during his first week as a telemarketer. (Compl., DE 1, ¶ 42.) But Defendants claim he committed numerous policy violations, including tardiness and insubordination. (Defs.' Br. Supp. Mot. Summ. J., DE 93, ¶¶ 58-71.) Around June 28, 2011, Defendants terminated Newman.

         Defendants demanded he return “all property, equipment, lists, books, records, or other materials of Gagan, LLC, d/b/a DirectBuy of Southlake, or Think Tank Software Development.”

         (Pl.'s App., DE 90, ¶ 64, citing DE 53 at 12, and DE 51-1 at 52-53.) Newman claims he complied with this ...


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