Opinion
NO. 2:02-cv-00223-LJM-WGH
May 14, 2004
ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This matter comes before the Court on two summary judgment motions seeking judgment on the claims of Plaintiff, Gerald E. Wright ("Wright" or "Plaintiff"): one filed by Defendants', Owens-Illinois, Inc. and Owens-Brockway Plastics, Inc. (collectively "Owens"), and another filed by Defendant Glass, Molders, Pottery, Plastics Allied Workers International Union (the "Union"). Wright's Amended Complaint alleges: (1) retaliatory discharge for making a worker's compensation claim; (2) a claim under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq.; (3) a "hybrid action" under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 141, et seq.; and (4) a "regarded as" claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Wright asserts all four of the above-listed claims against Owens, and he adds the Union as a Defendant on the LMRA and ADA claims. The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. BACKGROUND A. NON-COMPLIANCE WITH LOCAL RULES
Local Rule 5.1(a) requires that the text in all Court filings be double-spaced, except for quoted material. L. R. 5.1(a). As noted by Owens, Plaintiff has single-spaced 3 and ½ consecutive pages of argument in his 35-page response. If Plaintiff had complied with Local Rule 5.1(a) by double-spacing all of his argument, his response brief would have been approximately 42 pages, which exceeds the maximum page limit on briefs filed in this Court. L. R. 7.1(b) (no brief shall exceed 35 pages and no reply brief shall exceed 20 pages without permission of the Court). Plaintiff did not seek permission of the Court for an extension of the page limit with respect to his response brief.Plaintiff also has failed to comply with Local Rule 56.1(b). Rule 56.1(b) provides:
The [response] brief shall include a section labeled `Statement of Material Facts in Dispute' which responds to the movant's asserted material facts by identifying the potentially determinative facts and fact disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment.
L.R. 56.1(b). Instead of responding to Owens' fact section by identifying and focusing on potentially determinative facts and fact disputes in his "Statement of Material Facts in Dispute" section, Plaintiff simply recites his version of the facts and includes numerous facts that are clearly not in dispute. This failure to comply with Local Rule 56.1(b) forces the Court to sift through the parties' fact sections to determine if there actually are factual disputes. As a sanction for Plaintiff's failure to comply with Local Rules 5.1(a), 7.1(b), and 56.1(b), the Court will not consider the last three pages of his response brief (pages 33-35).
Owens also filed a Motion to Strike Portions of Plaintiff's Surreply Brief, arguing that portions of Plaintiff's surreply are beyond the scope of Local Rule 56.1(d). 56.1(d) provides:
Surreply. If, in reply, the moving party relies upon evidence not previously cited or objects to the admissibility of the non-moving party's evidence, the non-moving party may file a surreply brief limited to such new evidence and objections, no later than seven days after service of the reply brief.
With respect its Motion for Summary Judgment, Owens did file a reply brief that relied in part upon evidence not previously cited and objected to some of Plaintiff's evidence. In his surreply brief, consistent with his rights under Rule 56.1(d), Plaintiff responded to Owens' new evidence and objections. However, in a section entitled "Owens' `Abandoned Claims' Argument," Plaintiff also responded to legal arguments that Owens made in its reply brief. Because Plaintiff's "Owens' `Abandoned Claims' Argument" section does not address new evidence or evidentiary objections, it is beyond the proper scope of a surreply brief and the Court will not consider it. Accordingly, the Court GRANTS Defendants' Motion to Strike Portions of Plaintiff's Surreply Brief.
Ten days after Owens filed its reply brief, Wright filed a Motion to Submit the Supplemental Affidavit of Juanita K. Pearison. Doc. No. 54. Defendants object to the late submission of the affidavit, arguing that Wright should have been submitted the affidavit with his response. The Court agrees with Defendants, and DENIES Plaintiff's Motion to Submit the Supplemental Affidavit of Juanita K. Pearison.
B. THE FACTS 1. Termination of Wright's Employment at Owens
Wright was employed as a set-up person at Owens-Brockway's plant in Sullivan, Indiana, when he suffered a back injury in November 1999. Def.'s Stmt. of Facts at 5. Wright reported the injury to his supervisors and was placed on "light duty" for three days. Id. In late 2000 and early 2001, Wright experienced increasing back pain. Def.'s Stmt. of Facts at 5. Initially, Wright did not seek to have his injury treated through the worker's compensation system. Id. Instead, he sought treatment from Dr. Balmasada, a physician covered by his health insurance. Pl.'s Stmt. of Facts at 2. On March 14, 2001, Dr. Balmasada diagnosed Wright with a protruding disc, and placed him on a 25-pound lifting restriction. Id.Prior to the March 2001 restriction, Wright was responsible for setting up machines which made plastic bottles, a job known as the set-up position. Def.'s Stmt. of Facts at 5. Owens does not have a job description for the set-up position. Pl.'s Stmt. of Facts at 5. However, the job involved pushing/pulling molds (which weighed up to 250 pounds), changing steel transfer heads (which weighed up to 80 pounds), emptying 35-gallon barrels of bottles (which weighed over 20 pounds), and frequent bending and reaching. Def.'s Stmt. of Facts at 5; Def.'s Ex. 22. The job also involved running, monitoring, and fixing the bottle-making machines. Jack Heady Depo. at 14.
After Wright was placed on the 25-pound lifting restriction, Owens assigned him to a training position in the upstairs portion of the plant (which was where Wright normally performed his set-up duties), and then had him check for defective bottles in the downstairs area of the plant. Id. During the period that Wright worked in the upstairs portion of the plant, he continued to perform some of the duties of the set-up position, but he was assisted by co-workers with lifting and he did not want to lift anything heavy. Wright Depo. at 68. Wright remained in the above-mentioned "light duty" positions from March 14, 2001, until March 1, 2002, when Owens terminated his employment (with a period of leave in the middle after surgery in October 2001). Def.'s Stmt. of Facts at 6.
On July 10, 2001, Wright completed an Employee Report of Accident Form in order to process his continuing back injury as a worker's compensation claim. Pl's Stmt. of Facts at 2. Owens' third party administrator, GAB Robbins, investigated the claim and determined that Wright's back injury was work-related. Def.'s Stmt. of Facts at 6. In October 2001, due to GAB Robbins' determination that Wright's back injury was work-related, Owens referred him to Dr. Coscia of Ortholndy in Indianapolis. Id.; Pl.'s Stmt. of Facts at 2. Dr. Coscia recommended that Wright undergo a decompression/diskectomy surgery, which was performed on October 29, 2001. Id. As a result of the surgery, Wright was placed on medical leave from October 26, 2001, through January 1, 2002. Id.
When Wright returned to work on January 2, 2002, he was placed under a 15-pound lifting restriction. Id. Consequently, he remained working in his "light duty" position checking for defective bottles. Id. Wright stayed in the position until February 28, 2002. Id.
On February 28, 2002, Wright had his last appointment with Dr. Coscia. Pl's Stmt. of Facts at 3. On that date, Dr. Coscia determined that Wright had reached maximum medical improvement and prescribed a permanent 20-pound lifting restriction. Def.'s Ex. 11. Dr. Coscia also noted that Wright was doing quite well despite having re-injured his back at work on January 16, 2002. Id. In addition, Dr. Coscia recommended that Owens return Wright to his employment with the permanent restrictions. Id.
On March 1, 2002, Scott Seehawer ("Seehawer"), the plant production manager, received Dr. Coscia's report and decided to terminate Wright's employment. Def.'s Stmt. of Facts at 7; Pl's Stmt. of Facts at 3. Seehawer informed Wright of the decision at a meeting that same day. Pl.'s Stmt. of Facts at 3. At the meeting, Seehawer gave Wright a letter that stated:
After further review of your permanent restrictions as a result of a back injury, Owens-Illinois has determined that the company is unable to accommodate these restrictions. As a result of these restrictions, Owens-Illinois has no work that you can perform. Therefore, I regret to inform you that your employment with Owens-Illinois has been terminated, effective as of today's date [dated March 1, 2002].
Def.'s Ex. 23. Wright was upset about the decision and he stated that his "doctor had mentioned spinal fusion but didn't recommend it." Seehawer Depo. at 93. Wright also asked Seehawer, "What can I do?" Id. Seehawer informed him that he could get a second opinion about the spinal fusion surgery at his own cost, and that if the second opinion disagreed with Owens' doctor, then "we can go from there." Id. Wright's health insurance continued until March 31, 2002. Def.'s Stmt. of Facts at 3.
2. The Union's Grievance on Wright's Behalf
While Wright was employed by Owens, he was a member of Glass, Molders, Pottery, Plastics Allied Workers International Union Local 66. Union Stmt. of Facts at 2. Roy Terrell ("Terrell"), the Local Union President, and Wanda Collins ("Collins"), the Local Union Vice President, were both present at the March 1, 2002, meeting when Owens terminated Wright's employment. Id. at 3. After the termination, Terrell filed a grievance on behalf of Wright challenging the discharge and asking for reinstatement. Id. At Wright's request, the grievance also demanded "reasonable accommodation per 1990 Federal Disability Act." Id. at 4.
The majority of these facts are from the Union's Motion for Summary Judgment. Doc. No. 41.
Because the grievance concerned a termination rather than something less serious, the parties agreed to accelerate Wright's grievance to the Third Step, which involved International Union Representative Russell Babcock ("Babcock"). Id. Babcock met with Terrell and Collins prior to meeting with Owens. Id. Terrell and Collins, who had many years of experience at the Sullivan, Indiana, plant, did not believe that there was any available bargaining unit job which Wright could totally perform with the 20-pound lifting restriction. Id. Terrell himself had worked various jobs at the Sullivan, Indiana, plant over the years, including the set-up position, and he did not think that Wright could fully perform a job at the plant with the 20-pound lifting restriction. Babcock Depo. at 29. Babcock relied on their evaluation of the bargaining unit jobs. Union's Stmt. of Facts at 4.
Babcock met with Owens regarding Wright's grievance on April 18, 2002, pursuant to the Third Step of the grievance procedure. Id. at 5. Max Straub ("Straub"), the plant manager, and Scott Seehawer, the plant production manager, were Owens' representatives at the meeting. Id. During the meeting, Owens took the position that even if Wright was improving, it did not mean that he would ever have his permanent restrictions removed to the point that he could handle all of the duties of a job at the plant. Id. Babcock proposed that Owens reinstate Wright on medical leave and provide him with medical benefits while he pursued a second medical opinion. Id. Babcock also requested an extension of time before having to proceed to the Fourth Step of the grievance procedure (arbitration), hoping that Wright's permanent lifting restriction would be changed. Id.
In an April 22, 2002, letter, Straub rejected Babcock's proposal and stated that the grievance was denied. Id. However, Owens subsequently granted Wright an extension of the grievance time limits so that it could consider the results of a Functional Capacity Evaluation that Wright was scheduled to undergo. Def.'s Ex. 17.
3. The May 22, 2002, Functional Capacity Evaluation
On May 22, 2002, Wright underwent a Functional Capacity Evaluation ("FCE"). Id. at 8. During the evaluation, Wright informed his evaluator that his set-up job entailed pushing and pulling up to 250 pounds and lifting 25 to 75 pounds. Def.'s Ex. 22. The exam revealed that: (1) on an occasional basis, Wright could lift between 30 and 55 pounds (depending on whether the lift was from the floor or from the waist and whether the lift was to the waist or shoulders or overhead), push up to 70 pounds and pull up to 95 pounds and, (2) Wright could frequently lift between 15-25 pounds. Def.'s Ex. 22.After receiving the results of his FCE, Wright voluntarily waived his rights to seek an examination by his personal physician for purposes of his worker's compensation claim. Id. In addition, Wright's Union withdrew the grievance because the FCE did not change Wright's permanent lifting restriction. Union's Stmt. of Facts at 6.
4. Deposition Testimony of Jack Heady
Jack Heady ("Heady") has worked for Owens as a set-up person for about 16 or 17 years. Heady Depo. at 9-10. On or about February 26, 2002, Heady injured his right shoulder on the job. Heady Ex. 2. He had one surgery on his shoulder on May 2, 2002, and then a second surgery on January 16, 2003. Heady Depo. at 27, 40. Prior to his first surgery, Owens placed Heady on "light duty" for approximately three months. Id. at 44. After his first surgery, Heady was off work for over five months. Id. at 40-41. After his second surgery, Heady was off work for over two months. Id. In sum, Heady was off work recovering from his surgeries for a period of six or seven months, and he worked "light duty" for three months. In July 2003, Heady's doctor placed him on a permanent restriction of no overhead work with his right arm. Heady Depo. at 47.
When asked about his responsibilities as a set up person, Heady testified that sometimes the job was physically demanding, and other times it was not physically demanding, depending on how well the machines were running. Heady Depo. at 15. When a machine "rings out," the set up person in charge of the machine has to pull up the safety gates (an overhead pull that "feels like" 40 or 50 pounds). Id. at 16. With his restriction, Heady cannot use his right arm to pull up the safety gates, so he pulls up with his left arm, or he asks someone for help if someone is there. Id. Heady also is unable to move molds in and out of the machines with his restriction. Id. The molds weigh between 200 and 1,500 pounds. Id. Heady has an unwritten understanding with Owens that he does not have to move molds or lift transfer heads. Id.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548 (1986). See also United Ass'n of Black Lands capers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, the Court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to [her] case, one on which [she] would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
III. DISCUSSION
Wright alleges that Owens violated his rights under three federal statutes: the FMLA, the LMRA, and the ADA. In addition, Wright advances a state law theory of retaliatory discharge for filing a worker's compensation claim. The Court will first consider the parties' arguments related to the federal statutes.
A. FMLA CLAIM
Wright alleges that Owens violated the Family and Medical Leave Act of 1993 when it terminated his employment on March 1, 2002. Specifically, Wright asserts that Owens retaliated against him for attempting to exercise his FMLA rights, and that Owens wrongfully interfered with his FMLA rights. Owens denies Wright's assertions, and moves for summary judgment on the FMLA claim.
The FMLA establishes two categories of protections for employees. First, the FMLA contains prescriptive protections that are expressed as substantive statutory rights. See King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). The Act provides eligible employees of a covered employer the right to take unpaid leave for a period of up to 12 work weeks in any 12-month period for a serious health condition as defined by the Act. See id. (citing 29 U.S.C. § 2612(a)(1)). After the period of qualified leave expires, the employee is entitled to be reinstated to the former position or an equivalent one with the same benefits and terms of employment that existed prior to the exercise of the leave. See id. (citing 29 U.S.C. § 2614(a)). To insure the availability of these guarantees, the FMLA declares it "`unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided.'" Id. (quoting 29 U.S.C. § 2615(a)(1)).
When an employee alleges a deprivation of these substantive guarantees, the employee must demonstrate, by a preponderance of the evidence, only entitlement to the disputed leave. In such cases, the intent of the employer is immaterial. See id. (citing Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997) ("We shall continue to resolve suits under the FMLA . . . by asking whether the plaintiff has established, by a preponderance of the evidence, that he is entitled to the benefit he claims.")).
In addition to the substantive guarantees contemplated by the Act, the FMLA also affords employees protection in the event they are discriminated against for exercising their rights under the Act. See id. (citing 29 U.S.C. § 2615(a)(1)-(2)). Specifically,'"[a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave.'" Id. (quoting 29 C.F.R. § 825.220(c)). Furthermore, an employer may not consider the taking of FMLA leave as a negative factor in employment actions. See id. Because the FMLA's implementing regulations bar certain discriminatory conduct, the protections contemplated by these sections have been characterized as proscriptive in nature. See id.
In addition to the aforementioned statutory provisions, the United States Department of Labor has promulgated regulations implementing the FMLA, as authorized by 29 U.S.C. § 2654. Of significance to the instant case, § 29 C.F.R. § 825.208 provides:
(a) In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.
Once the employer has notice that an employee has a qualifying reason for FMLA leave, "the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave." 29 C.F.R. § 825.208(b)(1).
Owens also directs the Court's attention to the Labor Department Regulation pertaining to "light duty." The "light duty" regulation provides, in relevant part:
Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA. For example, employees (or their collective bargaining representatives) cannot "trade off' the right to take FMLA leave against some other benefit offered by the employer. This does not prevent an employee's voluntary and uncoerced acceptance (not as a condition of employment) of a "light duty " assignment while recovering from a serious health condition (see § 825.702(d)). In such a circumstance the employee's right to restoration to the same or an equivalent position is available until 12 weeks have passed within the 12-month period, including all FMLA leave taken and the period of "light duty."29 C.F.R. § 825.220(d) (emphasis added).
1. Substantive Claim or Retaliation Claim?
With those standards in mind, the Court must determine whether Wright's FMLA claim should be characterized as a substantive FMLA claim, as an FMLA retaliation claim, or as both. Wright advances both types of claims in his Amended Complaint. Owens contends that Wright's FMLA claim should be characterized as a substantive claim. Wright offers little resistance to Owens' characterization argument and focuses on his substantive FMLA claim. See Pl.'s Response at 19-25. The Court agrees with Owens that Wright's FMLA claim should be characterized as a substantive claim. Because Wright never asked for FMLA leave, and Owens never designated his leave or "light duty" period as FMLA-qualifying, it is difficult for Wright to argue that he was retaliated against for exercising his FMLA rights. See Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 2000) (observing that the thrust of an FMLA claim is substantive when the employer does not think that the employee took FMLA leave in the first place). Accordingly, the Court will consider the merits of Wright's substantive FMLA claim.
2. Merits of Substantive FMLA Claim
Owens' central argument on Wright's FMLA claim is that Wright received everything he was entitled to under the FMLA and, as a consequence, he cannot complain that his leave was not designated as FMLA leave. Owens cites the recent Supreme Court decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155 (2002) in support of its argument. In response, Wright asserts that Owens violated the FMLA by failing to designate the leave and "light duty" period as FMLA leave. Wright also attempts to distinguish Ragsdale from the present case.
The Court will begin with a discussion of Ragsdale because all of Owens' arguments are related to it. In Ragsdale, the defendant/employer had granted the plaintiff/employee a total of 30 weeks of leave to recover from cancer. See Ragsdale, 535 U.S. at 86. When the plaintiff requested an extension beyond the 30 weeks, the defendant refused her request and fired her when she did not report to work. See id. The plaintiff then filed suit, alleging that C.F.R. § 825.700(a), a Labor Department Regulation, required her employer to give her 12 additional weeks of leave because her employer had never informed her that her 30-week absence would count against her FMLA leave. See id.
The Supreme Court concluded that the regulation was invalid because it altered the statutory framework of the FMLA. See id. at 88-89. The Court explained:
The challenged regulation is invalid because it alters the FMLA's cause of action in a fundamental way: It relieves employees of the burden of proving any real impairment of their rights and resulting prejudice. In the case at hand, the regulation permitted Ragsdale to bring suit under § 2617, despite her inability to show that Wolverine's actions restrained her exercise of FMLA rights. Section 825.700(a) transformed a company's failure to give notice — along with its refusal to grant her more than 30 weeks of leave — into an actionable violation of § 2615. This regulatory sleight of hand also entitled Ragsdale to reinstatement and backpay, even though reinstatement could not be said to be "appropriate" in these circumstances and Ragsdale lost no compensation "by reason of Wolverine's failure to designate her absence as FMLA leave. By mandating these results absent a showing of consequential harm, the regulation worked an end run around important limitations of the statute's remedial scheme.Id. at 90-91.
The regulation that the Supreme Court invalidated in Ragsdale pertained to employers who provide more generous benefits than required by the FMLA. The Court explicitly declined to address the validity of the more generalized individualized notice provisions of 29 C.F.R. § 825.208, which are at issue in the instant case. See. id. at 88. However, the individualized notice provisions of § 825.208, which require employers to promptly notify an employee if leave has been designated as FMLA leave, are similar to the provision invalidated by Ragsdale, and district courts have properly questioned the continuing validity of § 825.208 in the wake of Ragsdale. See, e.g., Sims v. Schultz, 305 F. Supp.2d 838, 845 (N.D. Ill. 2004) ("While section 825.208 was not specifically addressed, it is similar and its validity may fairly be questioned after Ragsdale."); Donahoo v. Master Data Cntr., 282 F. Supp.2d 540, 555 (E.D. Mich. 2003) (finding for defendant even though defendant did not notify plaintiff of FMLA designation under § 825.208 because plaintiff did not establish that she was prejudiced by the lack of notice).
Specifically, 29 C.F.R. § 825.700 provides, in relevant part:
What if an employer provides more generous benefits than required by the FMLA?
(a) If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement.
After Ragsdale, an employer's failure to give notice that leave has been designated as FMLA leave, standing alone, does not violate the FMLA. A plaintiff must demonstrate that the lack of notice caused her FMLA rights to be prejudiced. See Summers v. Middleton Reutlinger, P.S.C., 214 F. Supp.2d 751, 757 (W.D. Ky. 2002) ("[P]laintiff cannot merely rely on the fact that defendant designated her FMLA leave retrospectively, she must demonstrate her rights under the FMLA were violated and she was harmed as a result."). Ragsdale instructs courts to take into consideration the reality of what would have happened had the notice been given, including whether or not the employee would have returned to work after taking leave. See Ragsdale, 535 U.S. at 88-91 ("The fact that the employee would have acted in the same manner if notice had been given is, in the Secretary's view, irrelevant . . . Even if Wolverine had complied with the notice regulations, Ragsdale still would have taken the entire 30-week absence. Blind to this reality, the Secretary's provision required the company to grant Ragsdale 12 more weeks of leave . . . To determine whether damages and equitable relief are appropriate under the FMLA, the judge or jury must ask what steps the employee would have taken had circumstances been different — considering, for example, when the employee would have returned to work after taking leave.").
In light of Ragsdale, the Court must consider whether Wright's FMLA rights were prejudiced under the circumstances of this case. As noted above, the FMLA entitles qualifying employees to 12 weeks of unpaid leave, continuation of medical benefits while on leave, and job restoration. In addition, a Labor Department Regulation indicates that anuncoerced period of "light duty" counts as FMLA leave. 29 C.F.R. § 825.200(d). In the instant case, Wright received approximately 10 weeks of leave to recover from his October 2001 back surgery, and Owens placed him on "light duty" for 8 weeks after the surgery, from January 1, 2002, until March 1, 2002. During the 10 weeks of leave, Wright received partial pay. In addition, Wright received medical benefits during the 10 weeks of leave, during his 8-week "light duty" period, and for four weeks after the termination of his employment (the medical benefits ended on March 31, 2002). In sum, Wright received everything he was entitled to under the FMLA — he was on leave or "light duty" work for more than 12 weeks and he received medical benefits for more than 12 weeks. In addition, even if the 8-week "light duty" period did not count toward his FMLA leave and Wright consequently only received 10 weeks of medical leave, it would elevate form over substance to require an employer to provide an employee with the 2 remaining weeks of medical leave when a doctor has placed permanent medical restrictions on the employee that prevent him from performing the essential functions of his job, and the employer has extended medical benefits to cover more than 12 weeks. See Cehrs v. Northeast Ohio Alzheimer's Research Cntr., 155 F.3d 775, 784-85 (6th Cir. 1998) (granting summary judgment for defendant despite fact issue about plaintiff's termination date because there was no dispute that plaintiff was unable to return to work when the 12-week FMLA leave expired).
Wright was not entitled to job restoration under the FMLA. Generally speaking, the FMLA entitlements, including the job restoration entitlement, expire after 12 weeks. 29 U.S.C. § 2612; 29 U.S.C. § 2614; 29 C.F.R. § 825.214(b). Moreover, as noted above, when an employee voluntarily accepts a "light duty" assignment, the time spent in the "light duty" assignment counts toward the employee's 12-week FMLA entitlement. 29 C.F.R. § 825.220(d). Thus, after 10 weeks of medical leave and 8 weeks of "light duty," Wright was not entitled to job restoration because the 12-week FMLA period had expired. In addition, as explained below in the Court's analysis of Wright's ADA claim, Wright could not perform the essential functions of his job when he was fired on March 1, 2002, and he still could not perform the essential functions of the job when he was evaluated on May 22, 2002. As a consequence, job restoration was not required (or possible). 29 § C.F.R. § 825.214(b) ("If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious medical condition, the employee has no right to restoration to another position under the FMLA.").
Wright's attempts to distinguish Ragsdale are unconvincing. Wright criticizes Owens for stating that Ragsdale invalidated 29 C.F.R. § 825.702(d)(2) and then seeking to use other applicable regulations against Wright. Pl.'s Resp. at 23 n. 4. However, the Ragsdale Court did not invalidate every one of the Labor Department's implementing regulations. Instead, it invalidated the provision before it, and cast doubt on the notice of designation provisions — provisions that Wright seeks to enforce. Wright also contends that Owens should have notified Wright that his FMLA rights were being exhausted and that his job was in jeopardy. However, after Ragsdale, lack of notice of FMLA designation is irrelevant if a plaintiff cannot make a showing of prejudice. Wright cannot connect the lack of notice to any prejudice because he would not have been able to return to his set-up position even if Owens promptly notified him that his 10-week leave and "light duty" assignment counted as FMLA leave.
The plaintiff in Ragsdale lost because she could not show "any real impairment of [her] rights and resulting prejudice." Ragsdale, 535 U.S. at 90. Similarly, Wright has failed to show how he was harmed by the fact that Owens did not designate his leave and "light duty" assignment as FMLA leave. As explained above, Wright already received more than 12 weeks of leave and "light duty," and his medical benefits continued for more than 12 weeks. Moreover, he was not entitled to job restoration under the FMLA. Wright has received everything he is entitled to under the FMLA. In other words, Wright cannot establish that he has been prejudiced by any violation of his FMLA rights. See Ragsdale, 535 U.S. at 90. Thus, the Court GRANTS Owens' Motion for Summary Judgment withregard to Wright's FMLA claim.
B. SECTION 301 CLAIM
The crux of Wright's § 301 claim is that the Union violated its duty of fair representation by withdrawing his grievance and not pursuing arbitration. Wright maintains that the Union's decision to withdraw his grievance was both arbitrary and discriminatory. Wright also contends that Owens violated various provisions of the CBA when it fired him, including a medical leave provision, a seniority rights provision, a handicapped employees provision, and a no termination except for just cause provision. The Union asserts that pursuing arbitration was futile because Wright could not fully perform any of the jobs at the plant with his lifting restrictions. Owens argues that it did not violate any of the CBA provisions at issue.
An action brought under § 301 of the LMRA is referred to as a hybrid action because it consists of two causes of action that are "inextricably interdependent." DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281 (1983). First, Wright must demonstrate that the Union breached its duty of fair representation by taking action that was arbitrary, discriminatory, or in bad faith. See McKelvin v. E.J. Brach Corp., 124 F.3d 864, 867-68 (7th Cir. 1997). Second, if Wright demonstrates a breach of the Union's duty of fair representation, he must show that Owens violated the CBA. See Filippo v. N. Ind. Pub. Serv. Corp., Inc., 141 F.3d 744, 748 (7th Cir. 1998). Failure to establish either cause of action is fatal to the hybrid action.
Wright first argues that the Union's decision to withdraw his grievance and not pursue arbitration was arbitrary. Wright bears a heavy burden on this issue:
Our review of whether a union acted arbitrarily in deciding not to pursue a grievance or arbitration is "highly deferential." Air Line Pilots, 499 U.S. at 78, 111 S.Ct. at 1135. A union's actions are deemed arbitrary only if they are "so far outside a `wide range of reasonableness' as to be irrational." Air Line Pilots, 499 U.S. at 67, 111 S.Ct. at 1129 (citation omitted); Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1176 (7th Cir. 1995). In applying this extremely deferential standard, we will " `not substitute [our] judgment for that of the union, even if, with the benefit ofhindsight, it appears that the union could have made a better call.'" Garcia, 58 F.3d at 1176 (quoting Ooley v. Schwitzer Division, 961 F.2d 1293, 1302 (7th Cir.), cert. denied, 506 U.S. 872, 113 S.Ct. 208, 121 L.Ed.2d 148 (1992)). "This wide degree of deference is warranted because Congress did not intend courts to interfere with the decisions of the employee's chosen bargaining representative." Ooley, 961 F.2d at 1302. In applying this standard at the summary judgment phase, we have explained that "so long as a colorable argument could be made at the time of the union's decision to drop its support that the grievance is meritless (and the union did not then treat substantively similar grievances differently from the plaintiff's), the decision cannot be regarded as arbitrary." Trnka v. Local Union No. 688, 30 F.3d 60, 61 (7th Cir. 1994). McKelvin's burden on summary judgment, in other words, is not just to establish that his position is as plausible as the union's, but to show that the union's position "could eventually be deemed not even colorable[.]" Id.McKelvin, 124 F.3d at 867-68.
With this deferential standard in mind, the Court turns to the arbitrariness issue in the instant case. Babcock, the International Union Representative who decided to withdraw Wright's grievance, was informed by Terrell and Collins, the local union representatives, that Wright could not perform any of the jobs at the plant with the 20-pound lifting restriction. Terrell himself had worked various jobs at the Sullivan, Indiana, plant over the years, including the set-up position, and he did not think that Wright could fully perform a job at the plant with the 20-pound lifting restriction. Babcock Depo. at 29. After Terrell and Collins informed him that they did not think Wright could work at the plant with his restrictions, Babcock requested an extension of the grievance, hoping that the permanent restrictions would be lifted during the extension. Babcock Depo. at 34-35. Owens granted the extension to await the results of a Functional Capacity Evaluation. However, the May 22, 2002, exam did not change Wright's permanent lifting restriction and, consequently, the Union withdrew the grievance.
Wright attacks the factual basis of the Union's explanation. For example, Wright asserts that "there is no rational or justifiable basis for Union to argue against its own member whom it is obligated to represent and claim that he had this fictional 20 pound lifting restriction after the May 22, 2002 functional capacity evaluation was completed." Pl.'s Response at 14. Wright's position is not supported by the record. The lifting restriction was not fictional. Dr. Coscia placed Wright on a permanent 20-pound lifting restriction on February 28, 2002. Although the report from the subsequent FCE did not mention the 20-pound restriction, the exam revealed that: (1) on an occasional basis, Wright could lift between30 and 55 pounds (depending on whether the lift was from the floor or from the waist and whether the lift was to the waist or shoulders or overhead), push up to 70 pounds and pull up to 95 pounds and, (2) Wright could frequently lift between 15-25 pounds. As detailed in the Court's analysis of the ADA claim below, the set-up position required that Wright be able to lift, push, and pull more than that, and those restrictions prevented him from performing essential functions of his position. The Union reviewed the report and concluded that Wright still could not perform any job at the plant. As a consequence, the Union withdrew the grievance that it filed on Wright's behalf.
The Union's decision to withdraw the grievance prior to arbitration was not irrational. The Union filed the grievance on Wright's behalf, seeking reinstatement. It would have been senseless to proceed to arbitration seeking reinstatement if Wright could not perform any job in the plant. Although Wright asserts that Owens violated a number of provisions of the CBA, he does not identify any CBA provision that gave him or the Union the ability to alter his job responsibilities based on his physical limitations. Nor does he cite to a provision that required Owens to keep him in a "light duty" position indefinitely, or shift him to another position when no positions were available. The Union sought and received a time extension to give Wright more time to have his restrictions lifted, and Wright now believes that the Union should have sought more time by proceeding to arbitration. However, it is not appropriate for the Court to substitute its judgment for that of the Union where the Union's judgment was rational. The Union's decision was that it was futile to pursue arbitration for reinstatement because Wright could not fully perform any job at the plant based on his physical limitations. This decision falls within the "wide range of reasonableness" that gives unions the discretion necessary to effectively and efficiently represent unionmembers. See Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45-46, 119 S.Ct. 292 (1998). Accordingly, the Court rejects Wright's argument that the Union's failure to arbitrate his grievance was arbitrary.
Wright also contends that the Union breached its duty of fair representation by handling his grievance in a discriminatory fashion. In support of this contention, Wright references his arguments in support ofhis ADA claim. However, the Court concludes below that Wright does not have a viable ADA claim against Owens. Regardless of the merits of the ADA claim, Wright has not adduced any evidence that the Union's decision to withdraw Wright's grievance was motivated by discriminatory animus. As a result, the Court concludes that the Union did not breach its duty of fair representation by discriminating against Wright on the basis of a protected characteristic.
The Union's decision to withdraw Wright's grievance before arbitration was neither arbitrary nor discriminatory. Wright does not argue that the action was taken in bad faith. Therefore, the Union did not breach its duty of fair representation to Wright. The Court GRANTS the Union's Motion for Summary Judgment on the § 301 claim. In addition, because Wright's hybrid action against Owens depends on his ability to establish that the Union breached its duty of fair representation, the Court GRANTS Owens' Motion for Summary Judgment with respect to the LMRA claim.
C. ADA CLAIM
Wright also asserts that Owens' decision to terminate his employment violated the ADA. In addition, Wright contends that the Union violated his rights under the ADA. Wright frames his ADA claim as a "regarded as disabled" claim. Owens maintains that it did not regard Wright as disabled within the meaning of the ADA, and contends that Wright was not qualified to perform the essential functions of the set-up position. The Union makes similar arguments. In response, Wright argues that the Defendants regarded him as disabled in the major life activity of working, and asserts that he was qualified for the set-up position.
The central anti-discrimination provision of the ADA provides:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112. In other words, inorder to establish his ADA discrimination claim, Wright must show that (1) Owens regarded him as disabled within the meaning of the ADA; (2) he was qualified to perform the essential functions of the set-up position; and (3) he suffered from an adverse employment action. See Dyke v. O'Neal Steel, Inc., 327 F.3d 628, 631 (7th Cir. 2003).
The Court will assume that Wright can establish that Owens regarded him as disabled within the meaning of the ADA, and turn to the question of whether a reasonable jury could find that he was qualified to perform the essential functions of the set-up position. Under the ADA, a "qualified individual with a disability" is one who, with or without reasonable accommodation, can perform the essential functions of the job. 42 U.S.C. § 12111 (8). The inquiry into whether or not Wright was a "qualified individual with a disability" is a two-step process. See Bay v. Cassens Transp. Co., 212 F.3d 969, 974 (7th Cir. 2000). First, the Court must consider whether "the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licences, etc." 29 C.F.R. app. § 1630.2(m). If the individual meets the first prong, the Court then considers "whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation." Id. The Court will focus on whether or not Wright was a "qualified individual with a disability" on March 1, 2002, which is when Owens decided to terminate his employment. See Bay, 212 F.3d at 974 ("Whether or not an individual meets the definition of a qualified individual with a disability is to be determined as of the time the employment decision was made.").
Because Owens does not argue that Wright did not have the appropriate skills and background for the set-up position, the only issue is whether Wright could perform the essential functions of the position, with or without reasonable accommodation, on March 1, 2002. Owens asserts that Wright could not perform the essential functions of the set-up position with the permanent 20-pound lifting restriction imposed by Dr. Coscia. In his response, Wright argues that Owens cannot claim that he was not qualified for the set-up position because Owens did not have a job description for the position and because Wright had worked in the set-up position with a 25-pound restriction prior to the surgery. Wright also emphasizes that other set-up workers sometimes performed their heavy lifting duties in pairs, and asserts that his FCE report showed that he had improved his lifting from 20 pounds to 55 pounds.
The Court finds Wright's arguments on this issue to be unpersuasive. First, the lack of a job description for the set-up position does not preclude Owens from arguing that Wright could not perform an essential function of the position. Wright himself is certainly competent to testify about his job duties, and he testified in his deposition that his job entailed pushing/pulling molds which weighed up to 200 pounds, changing steel transfer heads which weighed up to 80 pounds, and emptying 35-gallon barrels of bottles which weighed over 20 pounds. Jack Heady, another set up worker, testified that the job involved pulling 40-50 pound safety gates overhead, and moving molds that weighed between 200 and 1,500 pounds. In addition, Wright informed the doctor performing the Functional Capacity Evaluation that his job involved pushing/pulling up to 250 pounds and lifting approximately 25-75 pounds once or twice a day. Def.'s Ex. 22 at 124. With the permanent 20-pound lifting restriction that Dr. Coscia imposed on Wright on February 28, 2002, he was not qualified to perform the heavier lifting and pushing/pulling that his job entailed.
Wright's reliance on the results of the FCE is misplaced. First, whether or not Wright was a qualified individual with a disability is determined as of the time the employment decision was made. See Bay, 212 F.3d at 974. In the instant case, because the employment decision in question was made on March 1, 2002, the Court must determine whether Wright was "a qualified individual with a disability" as of that date. The FCE did not take place until May 22, 2002, two and one half months after the employment decision took place. Def.'s Ex. 22. Therefore, the results of the FCE are irrelevant to the question of whether Wright was "a qualified individual with a disability" on March 1, 2002. Second, even if the FCE results were relevant, they actually support Owens' position on the qualified individual issue. For example, Wright stated that his job entailed pushing/pulling up to 250 pounds, and the FCE indicated that Wright could only occasionally push 70 pounds and pull 95 pounds. That conclusion, along with other conclusions in the FCE, suggests that Wright was not qualified to perform essential functions of the set-up position even on May 22, 2002.
Wright's contention that he had performed the essential functions of the set-up position with a 25-pound restriction prior to his surgery is not supported by the record. Wright cites the following colloquy from his deposition in support of the contention:
Q: Were you placed on light duty after you handed [Dr. Balmasada's March 14, 2001, report placing Wright on a 25-pound lifting restriction] to somebody at Owens-Brockway?
A: I still done my same job, but lifting-wise I had assistance and I didn't want to do anything heavy.
Q: Were you placed on light duty?
A: Yes.
Q: Part of that light duty was they had others perform the lifting tasks normally associated with your job; is that correct?
A: Well, they would help me if it was heavy, if I needed help. If I didn't need help, I done it myself.
Wright Depo. at 68. Although Wright states that he did his same job, he also admits that co-workers aided him with the heavy lifting due to his restriction. In other words, Wright could not perform the essential functions of the set-up job without assistance from others. Rather than bolstering Wright's position, the testimony tends to undermine Wright's assertion that he could perform the essential functions of the set-up job on March 1, 2002, with a 20-pound lifting restriction.
The fact that other set-up workers sometimes performed their heavy-lifting duties in pairs does not save Wright's ADA claim. Wright's permanent 20-pound lifting requirement would have required that a co-worker be available whenever he had to do heavy lifting. The ADA does not require such an accommodation. See Peters v. City of Mauston, 311 F.3d 835, 845 (7th Cir. 2002) (collecting cases that rejected similar requests as unreasonable because such an accommodation would require another person to perform the essential functions of plaintiff's job). In addition, Owens had no duty to keep Wright in a "light duty" set-up job indefinitely. See Watson v. Lithonia Lighting, 304 F.3d 749, 752 (7th Cir. 2002).
Wright's arguments related to the testimony of Jack Heady are equally deficient. First, Heady testified that the set up position was physically demanding at times, depending on how well the machines were functioning. According to Heady, set up workers would have to move molds that weighed between 200 and 1,500 pounds, and pull safety gates overhead, which weighed about 40 pounds. Wright could not perform those types of tasks when he was discharged. Second, the fact that Owens makes an accommodation for Heady does not mean that heavy lifting and pushing/pulling are not essential functions of the set up position, nor does it mean that Owens had to make a similar accommodation for Wright. See Basith v. Cook Co., 241 F.3d 919, 930 (7th Cir. 2001) (courts grant significant deference to employer's judgment as to essential functions of job, and mere fact that other employees could assist plaintiff with work does not make it nonessential); Sieberns v. Wal-Mart Stores, 125 F.3d 1019, 1022 (7th Cir. 1997) ("Employers should not be discouraged from doing more than the ADA requires . . .").
Given the permanent nature of the lifting restrictions at the time and the nature of Wright's job responsibilities, the Court concludes that Wright could not perform the essential functions of the set-up position without accommodation on March 1, 2002. Moreover, Wright has not explained how he could have performed the essential functions of the set-up position with a reasonable accommodation. As a result, the Court concludes that Wright was not a "qualified individual with a disability" on March 1, 2002. Because Wright has not established that he was a qualified individual within the meaning of the ADA, his ADA claim fails at the summary judgment stage. The Court GRANTS Owens' Motion for Summary Judgment with respect to the ADA claim. Wright's inability to establish that he was a qualified individual also dooms his ADA claim against the Union. Accordingly, the Court GRANTS the Union's Motion for Summary Judgment with respect to the ADA claim.
D. JURISDICTION
In his Amended Complaint, Wright invokes the Court's federal question jurisdiction and supplemental jurisdiction. Because the Court has dismissed all of Wright's federal claims, it appears that original jurisdiction is now lacking and the Court may — pursuant to 28 U.S.C. § 1367(c)(3) — properly dismiss Wright's remaining state law retaliation claim. "In an ordinary case of supplemental jurisdiction, the presumption is in favor of relinquishment when the claim that is within the original jurisdiction of the district court was dismissed before trial." Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995). See also Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993). Wright may file a brief on or before Friday, May 28, 2004, to SHOW CAUSE why this Court still has jurisdiction over his state law claim. If Wright fails to file such a brief, the Court will exercise its discretion under 28 U.S.C. § 1367(c)(3), and dismiss his state law retaliation claim without prejudice.
IV. CONCLUSION
For the reasons stated herein, the Court GRANTS the Union's Motion for Summary Judgment in its entirety. In addition, the Court GRANTS Owens' Motion for Summary Judgment with respect to the federal claims. Due to this disposition of the federal claims, it appears that the Court lacks original jurisdiction over the remaining state law claim. Plaintiff may file a brief on or before Friday, May 28, 2004, to SHOW CAUSE why this Court still has original jurisdiction over his state law claim. If Plaintiff does not file such a brief by that date, the state law claim will be dismissed without prejudice. The pending motions in the case regarding expert reports are MOOT.IT IS SO ORDERED