United States District Court, N.D. Indiana
OPINION AND ORDER
William C. Lee, Judge United States District Court
matter is before the court on a motion for summary judgment
filed by the defendant, School City of Mishawaka
(“School City”) on October 1, 2016. The
plaintiff, Charles McLane (“McLane”), responded
to the motion on November 16, 2016, to which School City
replied on November 30, 2016. McLane then filed a
sur-response on December 19, 2016, to which School City filed
a sur-reply on December 27, 2016.
following reasons, the motion will be granted.
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 issue 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 (1986). Not every
dispute between the parties precludes summary judgment,
however, since “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law”
warrant a trial. Id. To determine whether a genuine
issue of material fact exists, the court must construe all
facts in the light most favorable to the non-moving party and
draw all reasonable inferences in that party's favor.
Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A
party opposing a properly supported summary judgment motion
may not rely merely on allegations or denials in its own
pleading, but rather must “marshal and present the
court with the evidence she contends will prove her
case.” Goodman v. Nat'l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).
has sued his former employer, School City, alleging
violations of the Americans with Disabilities Act, the
Rehabilitation Act, and the Age Discrimination in Employment
Act. McLane began working with School City as an independent
contractor in August of 2007. (Deposition of Charles P.
McLane at 18:19-22, 19:15, the “McLane Dep.”).
McLane became a regular full time employee with School City
in February of 2008. (McLane Dep. 19:15-19). McLane initially
worked as a heavy equipment operator and then transitioned
into a position as a groundskeeper. (Deposition of Gregg
Hixenbaugh at 17:5-18, the “Hixenbaugh Dep.”).
Based on the results of a job site analysis, McLane was
transferred from the position of groundskeeper to hall
monitor. (Hixenbaugh Dep. 32:6-17, 33:16-24, 72:11-17; McLane
Deposition Exhibit 8, August 5, 2014 Correspondence to
McLane; McLane Deposition Exhibit 9, August 22, 2014
Correspondence to McLane). McLane failed to report for duty
for the hall monitor position. (McLane Dep. 69:3-4). As a
result, McLane was terminated from his employment with School
City on September 9, 2014. (McLane Deposition Exhibit 10,
September 10, 2014 Correspondence to McLane).
worked primarily as a groundskeeper at Baker Park in the
summer and worked on snow removal in the winter. (Deposition
of Charles Trippel at 13:25-14:1-4, 16:11-17, the
“Trippel Dep.”). Baker Park is an athletic
facility which consists of two baseball diamonds, two
softball diamonds, a soccer field, and tennis courts and
related facilities such as restrooms and a press box.
(Trippel Dep. 9:2-13; McLane Dep. 32:5-11). According to
McLane and his supervisor, Charles Trippel, McLane was
required to perform various tasks at Baker Park including
maintaining the baseball and softball diamonds, mowing the
grass, edging, preparing for ballgames, and maintaining the
facilities by cleaning the bathrooms, taking out the trash,
and general clean up. (Trippel Dep. 14:5-6, 19:24-20:3;
McLane Dep. 32:14-20).
City's job description (the “Job
Description”) for the groundskeeper position also sets
forth various qualifications and functions of the job.
(Trippel Deposition Exhibit 3, Job Description attached to
April 29, 2014 Email). The Job Description was in place while
McLane was employed at School City. (Trippel Dep. 63:15-19).
The description required groundskeepers to be able to
“bend, stoop, climb a ladder, stand for extended time
periods and lift up to one hundred (100) pounds.”
(Trippel Dep. Exhibit 3-Qualifications Section). During his
deposition, McLane agreed that the position required him to
stand for extended periods of time. (McLane Dep. 29:16-20).
McLane also agreed that bending was also a requirement of the
job. (McLane Dep. 29:21-30:2).
job duties and essential functions are also described in the
Process Description and Work Activity Assessment of the job
site analysis (the “Job Site Analysis”) performed
by physical therapist, Ronald D. Knickrehm. (Defendant's
Exhibit 5 to Deposition of Ronald D. Knickrehm, Job Site
Analysis). Knickrehm obtained the information for the
essential functions of the groundskeeper position through his
discussions with McLane, his observations of McLane, and by
looking at the duties performed by McLane. (Deposition of
Ronald Knickrehm at 24:10-25, the “Knickrehm
Dep.”). Knickrehm identified various essential
functions for the groundskeeper position including step
ladder climbing, cleaning bleachers, and gathering trash.
(Knickrehm Dep. 43:10-44:5). Knickrehm also noted that
bending, squatting, stooping, stair climbing, standing, and
walking were essential functions and activities. (Knickrehm
Dep. 16:14-25, 35:9-17, 44:14-23; Exhibit H, pg. 3, Activity
Trippel (“Trippel”) was McLane's supervisor.
(Trippel Dep. 15:12-14; Hixenbaugh Dep. 11:21-24). As
McLane's supervisor, Trippel would check on McLane while
McLane was out in the field working. (Trippel Dep. 15:15-21).
Trippel would observe McLane working on average about three
to four times a week for about fifteen minutes to a half an
hour. (Trippel Dep. 23:19-22, 54:2-7).
Trippel's observations, Trippel noticed that at times
McLane was doing his job but that other times it appeared
that McLane was struggling in the performance of his work,
having difficulty bending over and picking items up. (Trippel
Dep. 24:1-7). Trippel also observed that McLane was not able
to walk consistently nor could he walk more than ten or
fifteen feet. (Trippel Dep. 24:19-20, 64:17-23). Trippel
became concerned with McLane's difficulty with walking,
work, and performance of his duties. (Trippel Dep. 28:7-13,
29:15-19). He noted that McLane had difficulty with other
tasks, such as cleaning bathrooms (due to the required
bending) and cleaning bleachers, and generally noted that
McLane looked like he was in pain when trying to go about
normal activity. (Trippel Dep. 65:3-9, 66:17-21, 67:1-3).
spring of 2014, Trippel discussed his concerns with McLane.
(Trippel Dep. 28:22-29:3). At that time, Trippel had concerns
about McLane's ability to get his job done. (Trippel Dep.
29:15-19). Trippel also informed his boss, Randy Squadroni,
of his concerns and expressed that he did not wish to see
McLane get hurt. (Trippel Dep. 29:20-30:5). Trippel also made
Gregg Hixenbaugh (“Hixenbaugh”), School
City's Executive Director for Human Resources and Legal
Counsel, aware of his concerns regarding McLane. (Hixenbaugh
Dep. 24:1-4, 7:13-15). During his conversation with
Hixenbaugh, Trippel expressed his concern about McLane's
ability to safely and fully perform his job functions.
(Hixenbaugh Dep. 23:2-5, 25:13-16). Following the
conversation, Hixenbaugh decided that School City would
exercise its right to have McLane undergo a fit for duty
exam. (Hixenbaugh Dep. 24:22-25, 42:7-11).
to School City policy, a fit for duty exam is appropriate
when a concern is raised regarding an employee's ability
to perform his or her job related functions in a safe manner.
(Hixenbaugh Dep. 15:15-16:2; Defendant's Exhibit 3 to
Hixenbaugh Deposition, School City 4160 Physical Examination
Policy; Defendant's Exhibit 4 to Hixenbaugh Deposition,
School City 4160A Physical Examination Policy). Such exams
were not conducted without Hixenbaugh's approval.
(Hixenbaugh Dep. 16:6-9). It was Hixenbaugh's
understanding that when such exams and related occupational
reviews were conducted that the employee's abilities
would be assessed with respect to all employment. (Hixenbaugh
Dep. 49:20-50:3). As a result, McLane was requested to
undergo a fit for duty exam. (Hixenbaugh Dep. 24:22-25,
42:7-11). Over the course of Hixenbaugh's tenure with
School City, other maintenance and custodian employees were
also asked to undergo fit for duty exams. (Hixenbaugh Dep.
16:13-16, 26:7-11, 71:25-72:4).
2, 2014, McLane underwent a fit for duty exam which was
performed by Dr. Troy Bergin (“Dr. Bergin”) of IU
Health Occupational Services/Wipperman Clinic (the “Fit
for Duty Exam”). (McLane Dep. 53:6-54:1; Exhibit 6 to
Deposition of McLane, Health Status Report). As a result of
the exam, Dr. Bergin found McLane fit for duty but requested
that a job site functional capacity evaluation be performed.
(McLane Dep. 54:7-20).
Knickrehm performed the Job Site Analysis requested by Dr.
Bergin on May 11, 2014. The purpose of the Job Site Analysis
was to see if McLane could do the essential functions of his
Job. (Knickrehm Dep. 63:11-13). Knickrehm concluded that
McLane was unable to “safely stoop, squat, kneel,
crawl, climb ladders, and climb standard stairs…it is
my professional opinion that these deficits will not improve
with instruction or education and are physically limiting
this employee's ability to safely perform the essential
functions of his job.” (Job Site Analysis pg 3,
holds a Bachelor of Science in Physical Therapy, is a
licensed physical therapist, and holds a number of
designations including Certified Ergonomic Assessment
Specialist Level III, WorkWell Systems Functional Capacity
Evaluation, maintains his current licensing requirements and
also keeps apprised of professional journals and participates
in online training. (Knickrehm Dep. 6:15-25, 7:15-8:25,
9:4-6, 10:15-25, 12:14-25). Knickrehm works primarily in
industrial medicine including physical therapy as it relates
to work injuries, job site analyses, essential function
screenings, and office ergonomics. (Knickrehm Dep. 15:14-20).
He estimates that he has performed four to five hundred job
site analyses and performs approximately 30-50 per year.
(Knickrehm Dep. 14:17-24, 15:21-23).
described the job site analysis process as a mixture of
observation and information gathering, including obtaining
information from the employee, job descriptions, and the
employer. (Knickrehm Dep. 16:2-18:9, 20:21-25). Once the
process is complete, Knickrehm reviews the gathered
information and develops his opinions. (Knickrehm Dep.
18:6-9). This process is considered to be the normal
methodology used for job site analysis and is the accepted
practice in the industry. (Knickrehm Dep. 18:10-22).
Knickrehm used the same process when conducting the Job Site
Analysis on McLane. (Knickrehm Dep. 20:13-15).
his observations, Knickrehm noted that McLane was unsteady,
had difficulty walking, could not walk frequently, was unable
to bend properly, and noted that McLane's knees
didn't allow him to crawl or use safe body mechanics and
at times did such functions while breathing heavily and
perspiring, which Knickrehm explained as signs of exertion.
(Knickrehm Dep. 21:14-23:10, 33:19-34:2). Knickrehm also
noted that McLane's knees did not operate properly and
that McLane could not squat. (Knickrehm Dep. 23:13-16;