United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY JUDGE.
matter comes before the Court on Defendant Wick-Fab,
Inc.'s Motion for Summary Judgment (ECF No. 22).
Defendant seeks judgment as a matter of law on
Plaintiff's claims under the Americans with Disabilities
Act (“ADA”), the Age Discrimination in Employment
Act (“ADEA”), and Indiana common law. For the
reasons set forth below, Defendant's motion will be
granted with respect to Plaintiff's federal claims.
Plaintiff's state law claim will be dismissed without
prejudice for the Plaintiff to re-file in state court.
Complaint and Demand for Jury Trial (ECF No. 1) was filed on
November 28, 2017. Defendant filed its Answer to Complaint
(ECF No. 13) on January 19, 2018. The instant motion, with
Memorandum in Support (ECF No. 23) and Appendix (ECF No. 24)
was filed on January 22, 2019. Plaintiff filed his Response
in Opposition to Defendant's Motion for Summary Judgment
(ECF No. 25) on February 19, 2019. In his Response, Plaintiff
“jettisoned” his claims for failure to
accommodate and retaliation under the ADA. (Id., p.
2). Defendant filed its Reply in Support of Motion for
Summary Judgment (ECF No. 26) on March 5, 2019. On March 12,
2019, Plaintiff filed his Motion for Leave to File Surreply
and for Extension of Time to File Surreply (ECF No. 27).
Defendant filed its Response to Plaintiff's Motion for
Leave to File Surreply and for Extension of Time to File
Surreply (ECF No. 28) on March 13, 2019. This Court granted
Plaintiff leave to file his surreply (ECF No. 29), and
Plaintiff's Surreply in Opposition to Defendant's
Motion for Summary Judgment (ECF No. 30) was filed on April
25, 2019. The instant motion is now ripe for ruling.
began his employment with Defendant in 2010, when he was
about fifty years old. Plaintiff worked at Defendant's
South Milford, Indiana, location, where his job title was
“Welder.” Plaintiff performed various jobs around
the facility, including fabrication, welding, truck driving,
and sandblasting. However, Plaintiff's primary job
responsibility was “rack repair work.” While
other employees would do rack repair work “if there was
a big order of racks, if things were slow, or if they were
between jobs” (Shipe Dep., p. 39, 11. 1-6), Plaintiff
testified that he did “all the rack repairs at South
Milford, ” (Plaintiff's Dep., p. 55, 111-4).
ownership changed hands on August 1, 2016, when it was
purchased by Joe (“Joe”) and Cheryl
(“Cheryl”) Cochran (collectively the
“Cochrans”). After the purchase, the Cochrans
began evaluating Defendant's business model, including
whether Defendant would continue to do rack repair work. In
November or December 2016, the Cochrans made the decision to
stop most rack repair work because it was not profitable.
Defendant continued to perform rack repair work as a courtesy
for some existing customers, particularly Kautex, continuing
into early 2018. The total time devoted to the continued rack
repair work amounted to about two to three days per month.
morning of February 23, 2017, Plaintiff experienced a crush
injury to his left hand while on the job. Plaintiff continued
to work until his lunch break, at which time he applied an
ice pack from his lunch to his injured hand. Plaintiff states
that he told his supervisor, Matt Shipe
(“Shipe”), about the injury during lunch, but
that Shipe did not respond. Plaintiff did not, however, show
his hand to Shipe or request any medical treatment. Plaintiff
returned to work after lunch and worked the remainder of his
went to a previously-scheduled doctor's appointment the
next day, February 24, 2017. The appointment was to treat an
arthritic condition in Plaintiff's right hand, but the
doctor expressed concern regarding Plaintiff's injured
left hand. Plaintiff returned to the South Milford facility
after the doctor's appointment and spoke to Shipe about
the injury. At this point Shipe prepared a written summary of
the information Plaintiff provided and sent it to
Cheryl. Cheryl asked Shipe to bring Plaintiff to
Defendant's Avilla, Indiana, facility the following
Monday morning so that Plaintiff could complete an injury
did not accompany Shipe to the Avilla facility the following
Monday. The parties dispute the reason for Plaintiff's
absence. Defendant asserts that Plaintiff told Shipe that he
was not going to use worker's compensation insurance, and
instead was going to use his personal insurance. Plaintiff
denies ever making this statement; he testified that using
his personal insurance would “cost me more money
because there's a higher deductible and all that, than to
go through the workman's comp because there was no
deductible on that. So that didn't make any sense.”
(Plaintiff's Dep., p. 123, l. 23 - p. 124, l. 6). Instead
of going to the Avilla facility, Plaintiff reported to the
South Milford facility and worked his full shift both Monday,
February 27, 2017, and Tuesday, February 28, 2017.
his shift on February 28, 2017, Plaintiff presented to the
Fort Wayne Orthopedics (“FWO”) after-hours clinic
due to pain in his left hand. FWO gave Plaintiff a black
Velcro brace to wear on his left hand and provided him a
Restriction Worksheet that stated he must wear the brace
while working. There were no other restrictions noted.
Plaintiff gave the Restriction Worksheet to Shipe when
Plaintiff reported for work on March 1, 2017. Shipe read the
Restriction Worksheet, saw Plaintiff wearing the brace, and
asked Plaintiff if he could do his job. Plaintiff told Shipe
that he would have “no problem” doing his job.
Plaintiff continued to perform his regular job duties and did
not report any subsequent issues to Shipe or anyone else.
point following Plaintiff's injury - either February 24
or February 28, 2017 - a phone call occurred between
Plaintiff and Joe. During this phone call, Joe asked
Plaintiff to submit bills from his hand injury through his
personal insurance rather than Defendant's worker's
compensation insurance. In response, Plaintiff told Joe that
he was “thinking about it, ” but that he
didn't know what he was going to do. (Id., p.
175, 11. 1-9). Plaintiff continued to consider whether he
would use the worker's compensation insurance up to the
time he was terminated. Plaintiff had no additional
communications with anyone from Defendant regarding a
potential worker's compensation filing. Defendant did not
become aware of any worker's compensation filing until it
received notice from the State of Indiana on April 12, 2017.
In fact, Plaintiff was not aware of
his worker's compensation filing, submitted on April 10,
2017, until it was presented to him at his deposition.
(Id., p. 118, 11. 21-23).
March 13, 2017, Joe informed Plaintiff that Defendant had
made the decision to eliminate Plaintiff's position. Joe
explained that the position was being eliminated because
Defendant was no longer going to do rack repair work for its
primary rack repair customer, Bosch Automotive
(“Bosch”). Defendant also terminated the
following individuals due to the cessation of rack repair
Age (as of termination)
s termination was effective immediately. Defendant did not
inform Bosch of the decision to cease rack repair work until
March 15, 2017.
filed an EEOC Charge of Discrimination on April 12, 2017, and
filed a second Charge of Discrimination on August 18, 2017.
Cheryl authored a position statement in response, stating
that “Mr. Mobley's sole job was to repair Bosch
Automotive racks.” As noted above, Plaintiff performed
various jobs at Defendant's facility, rendering this
statement incorrect. Cheryl admitted as much in her
deposition, describing the statement as a
“mistake.” Additional facts will be presented as