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McLane v. School City of Mishawaka

United States District Court, N.D. Indiana

February 1, 2017



          William C. Lee, Judge United States District Court

         This 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.

         For the following reasons, the motion will be granted.

         Summary Judgment

         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 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).


         McLane 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).

         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).

         School 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).

         McLane's 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 Findings Section).

         Charles 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).

         During 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).

         In the 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).

         According 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).

         On May 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).

         Ronald 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, Recommendations Section).

         Knickrehm 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).

         Knickrehm 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).

         Through 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; 28:22-29:10, ...

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