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Patterson v. Triangle Tool Corp.

United States District Court, E.D. Wisconsin

June 22, 2016



          LYNN ADELMAN District Judge.

         The plaintiff, John Patterson, alleges that his employer, Triangle Tool Corporation, took several adverse employment actions against him in violation of the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), the Family and Medical Leave Act ("FMLA"), and the Employee Retirement Income Security Act ("ERISA"). Before me now is the defendant's motion for summary judgment. See Fed. R. Civ. P. 56.

         I. BACKGROUND

         Triangle produces plastic-injection and die-cast molds. The plaintiff began working for Triangle in 1992, when he was hired as a polisher in the polishing department. He worked at Triangle as a polisher until February 11, 2013, when he was laid off. The plaintiff was brought back as a polisher in October 2014, but was laid off a second time in May 2015. For the entire time he worked at Triangle, the plaintiff ultimately reported, through his departmental supervisor, to John Held, Triangle's Vice President of Operations. Since 1982, Triangle has been owned by LeRoy Luther.

         The plaintiff is 71 years old and suffers from several medical conditions that qualify as "disabilities" within the meaning of the ADA. In 1998, he was diagnosed with congestive heart failure and had bypass surgery. He had a second bypass surgery in 2008. The plaintiff also suffers from a respiratory condition that was caused by his first bypass surgery. Since approximately 2010, the plaintiff has suffered from back pain and disc degeneration. In March 2013, the plaintiff had back surgery. Over the years, the plaintiff's medical conditions have required him to take various intermittent absences from work that were protected by the FMLA, and to utilize the benefits provided to him under Triangle's employee health plan, which is an ERISA plan.

         The plaintiff contends that Triangle has taken various adverse employment actions against him because of his age, disabilities, need to take FMLA leave, and utilization of benefits under Triangle's health plan. First, the plaintiff alleges that the decision to lay him off in February 2013 was based on his age, disabilities, retaliation for using FMLA leave, and utilization of health benefits. Second, the plaintiff contends that, throughout his tenure at Triangle, he was denied pay raises because of his age and disabilities. Third, the plaintiff contends that Triangle interfered with the exercise of his rights under the FMLA. Finally, the plaintiff contends that, after Triangle brought him back to work in October 2014, it failed to accommodate his disabilities and, in May 2015, terminated him because of his disabilities.

         The defendant moves for summary judgment on the plaintiff's claims relating to his raises, the 2013 layoff, and his FMLA rights. The defendant contends that the plaintiff's disability-related claims involving his work at Triangle after October 2014 and his layoff in May 2015 are not properly part of this case because they arise out of events that happened after the plaintiff filed the complaint.


         In general, the ADA provides that a covered employer shall not "discriminate against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). "Discrimination, " for the purposes of the ADA, includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" unless the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business." 42 U.S.C. § 12112(b)(5)(A). The ADEA prohibits an employer from discriminating against an employee because of that employee's age. 29 U.S.C. § 623(a)(1). Section 510 of ERISA makes it "unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . ." 29 U.S.C. § 1140.

         Under the FMLA, eligible employees are entitled to 12 weeks unpaid leave per year for various reasons, including a "serious health condition" rendering the employee unable to perform his or her job. 29 U.S.C. § 2612(a)(1)(D); Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). To ensure this entitlement, the Act makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615(a)(1); Kauffman, 426 F.3d at 884. In addition to these substantive provisions, the FMLA makes it "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2); Kauffman, 426 F.3d at 884. Similarly, the Act makes it unlawful for any employer to "discharge" or "discriminate" against anyone for taking part in proceedings or inquiries under FMLA. 29 U.S.C. § 2615(b); Kauffman, 426 F.3d at 884. The Seventh Circuit has construed these last provisions to create a cause of action for retaliation. Kauffman, 426 F.3d at 884.

         At the summary-judgment stage, claims of employment discrimination are evaluated under the "direct" method of proof or the "indirect" method of proof announced in McDonnell Douglas v. Green, 411 U.S. 792 (1973), depending on the kind of evidence the plaintiff presents in opposition to the motion. See, e.g., Smith v. Chicago Transit Auth., 806 F.3d 900, 904 (7th Cir. 2015). Under the direct method of proof, the plaintiff can defeat summary judgment by presenting sufficient direct evidence of the employer's discriminatory intent or "a convincing mosaic of circumstantial evidence . . . that point[s] directly to a discriminatory reason for the employer's action." Id. at 904-05 (quoting Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir.2004)). Examples of relevant circumstantial evidence include "suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other employees in the protected group." Id. (quoting Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675 (7th Cir.2012)).

         Under the indirect method, a plaintiff must first establish a prima facie case of discrimination by demonstrating that (1) he is a member of a protected class; (2) he met his employer's legitimate job expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees outside of the protected class received more favorable treatment. See, e.g., Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the employer to offer a nondiscriminatory reason for the adverse employment action. Id. If the employer does so, the burden shifts back to the plaintiff to submit evidence demonstrating that the employer's explanation is a pretext. Id. Elements of the prima facie case often overlap with the question of pretext, and when the employer offers a nondiscriminatory reason for the adverse employment action, the court may skip the analysis of a plaintiff's prima facie case and proceed directly to the evaluation of pretext. See, e.g., Benuzzi v. Bd. of Educ. of City of Chicago, 647 F.3d 652, 663 (7th Cir. 2011).

         A. February 2013 Layoff

         The plaintiff's primary claim is that Triangle laid him off in February 2013 in violation of all four of the statutes involved in this suit. He claims that the layoff was motivated by his age, his disabilities, his use of FMLA leave, and his use of benefits under Triangle's health plan, which is governed by ERISA. I will discuss the age, disability, and FMLA claims together, and then discuss the ERISA claim.

         Triangle has offered a nondiscriminatory reason for plaintiff's layoff in February 2013, namely, that it decided that it would not have enough polishing work for all five of its full-time polishers after February 2013, and that it decided to lay the plaintiff off rather than any of the other four polishers because the other four polishers were more skilled than the plaintiff. Because Triangle has offered this nondiscriminatory reason for the employment action, I will skip over the analysis of the plaintiff's prima facie case under the indirect method and focus on whether the plaintiff has sufficient evidence of pretext. Benuzzi, 647 F.3d at 663. The same evidence that pertains to pretext is also relevant to determining whether the plaintiff survives summary judgment under the direct method. See, e.g., Tank v. T-Mobile USA, Inc., 758 F.3d 800, 808 n.3 (7th Cir. 2014).

         In support of its nondiscriminatory reason for laying off the plaintiff, Triangle submits evidence showing that, in 2002, it employed 14 full-time polishers. Over the years, due to advances in technology that reduced the need for polishers, Triangle has gradually eliminated polisher positions. At the time of the plaintiff's layoff, it employed only five full-time polishers.

         According to Triangle's evidence, in late 2012 and early 2013, its Vice President of Operations, John Held, reviewed the number of orders in Triangle's pipeline and determined that there would not be enough work to continue to employ five polishers. Triangle has also submitted a table showing that the actual number of polisher hours logged between February 2013 (when plaintiff was laid off) and October 2014 (when plaintiff was brought back to work) were insufficient to support five polishers working eight hours per day. See Held Aff. ¶ 21.[1] The table shows that, during this time, four polishers could complete all of Triangle's polishing work by working between six- and nine-hour days. For example, during May and June of 2014, which was Triangle's slowest period during plaintiff's layoff, Triangle's four remaining polishers logged 963.5 hours. Because there were 42 working days during those months, each polisher worked, on average, only 5.7 hours per day.[2] During November and December 2013, which was Triangle's busiest period during plaintiff's layoff, Triangle's four polishers logged 1286.5 hours. Because there were 36 working days during those months, each polisher worked, on average, about nine hours per day.[3] Had Triangle employed a fifth polisher during its busiest period, each polisher would have worked only about 7 hours each day.[4] Thus, Triangle's evidence supports its assertion that, between February 2013 and October 2014, it did not have enough work for five full-time polishers.

         The plaintiff asserts that, contrary to Triangle's claim, there would have been enough work for five polishers. However, the plaintiff points to no admissible evidence that supports his assertion. Rather, he relies on his personal opinion that the polishing department was busy in January 2013, and on a conversation that he had with a former coworker after he was laid off, who told the plaintiff in March 2013 that the polishers were working ten-hour days but that John Held had told everyone to work only nine-hour days so that it looked like they did not have enough work to do. The plaintiff's opinion about the amount of polishing work in January 2013 is of course not evidence that Triangle anticipated having enough work for five polishers after February 2013. And the plaintiff's testimony about what his former co-worker told him is inadmissible hearsay. That is, the statement is an out-of-court declaration by the coworker, which the plaintiff offers for the truth of the matter asserted, i.e., that in March 2013 Triangle had enough work for five polishers but John Held told the polishing department to make it look like there was less work. See Fed. R. Evid. 801, 802. The plaintiff has not argued that the statement was made by the coworker as a representative of Triangle or that it otherwise qualifies as a statement by a party opponent under Rule 801(d)(2). Thus, the plaintiff has not shown the existence of a genuine factual dispute as to whether Triangle anticipated having enough work for five polishers after February 2013.

         However, I conclude that the plaintiff has produced enough evidence to create a genuine factual dispute over whether the plaintiff was chosen for the layoff because of his age, disabilities, and use of FMLA leave. According to Triangle's evidence, John Held decided to lay the plaintiff off because he was "the least versatile in terms of skill-set of the full-time polishers." Held Aff. ¶ 24. Held believed that Patterson, unlike the other four polishers, was not "capable of performing all levels of polishing, including high-quality finish polishing." Id. ΒΆΒΆ 26-29. Held also determined that most of the polishing work in Triangle's pipeline would require high-quality finish polishing, rather than the "rough finish" polishing ...

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