United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
S. VAN BOKKELEN, UNITED STATES DISTRICT JUDGE.
his employment termination in June 2011, Plaintiff James
Newman sued three Gagans: Gagan, LLC, Laurie Gagan, and James
Gagan, Jr. 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.
parties traded motions for summary judgment.
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.
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.
his employment at Gagan and Think Tank, Newman suffered from
ADHD, anxiety, and depression, for which he took prescribed
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.)
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.
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,
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,
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
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
App., DE 90, ¶ 64, citing DE 53 at 12, and DE 51-1 at
52-53.) Newman claims he complied with this ...