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Mobley v. Wick-Fab, Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

May 13, 2019

WICK-FAB, INC., Defendant.



         This 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.


         Plaintiff's 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.


         Plaintiff 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).

         Defendant's 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.

         On the 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 shift.

         Plaintiff 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.[1] Cheryl asked Shipe to bring Plaintiff to Defendant's Avilla, Indiana, facility the following Monday morning so that Plaintiff could complete an injury form.

         Plaintiff 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.

         Following 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.

         At some 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).

         On 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 work:


Age (as of termination)

Disability Status


Kyle Garrett



General Labor/Welder

Terry Fugate




Richard Landis




Jack Kirkpatrick



General Labor

Timothy sanders



Fabricator/Road Guy/Install

Ezekiel McSherry




         Plaintiff s termination was effective immediately. Defendant did not inform Bosch of the decision to cease rack repair work until March 15, 2017.

         Plaintiff 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 necessary below.


         A. SUMMARY ...

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