Brunker v. Schwans Home Service, Inc., No. 07-3183 (7th Cir. Oct. 22, 2009); Inman v. Klockner Pentaplast of America, No. 08-1882 (4th Cir. Oct. 22, 2009)

| Oct 21, 2009 | Daily Developments in EEO Law |

Amicus support helped two plaintiffs in the Fourth and Seventh Circuits today win reversals of summary judgment (and, in one case, reversal of sanctions and a reassignment of the district court judge).

Brunker v. Schwan’s Home Service, Inc., No. 07-3183 (7th Cir. Oct. 22, 2009): As a Route Manager for Schwan’s, Brunker sold and delivered frozen food and other company products to customers.  In 2003,Brunker began to suffer dizziness, slurred speech and headaches. He took a short leave, and — after a period of light duty — was medically cleared to return to his job without restrictions. Brunker then asked for addition al time for leave to do addition al testing at the Mayo Clinic, yet by this time his manager (Ramey) was already beginning to write him up for rule infractions (“corrective action memos”). 

While at Mayo, Brunker was diagnosed with MS. Meanwhile, back home, his manager seemed to be laying a file to fire him:

“During the time Brunker was away at the Mayo Clinic, Ramey drove Brunker’s route. Ramey claimed that Brunker had not been servicing hundreds of his customers and had falsified his daily records. When Brunker returned two weeks later, after being diagnosed with multiple sclerosis, Ramey fired him, citing ‘unsatisfactory performance’ and ‘unable to perform essential job functions’ on the termination form. He backdated the termination to September 9, the day Brunker left for the clinic and before his diagnosis of multiple sclerosis.”

In Brunker’s subsequent ADA discrimination case, everything went awry in the district court.  The judge below denied discovery into the performance history of other employees who had supposedly committed rule infractions, on the ground that the employer advanced a different reason for the employee’s termination (failure to service customers).  The panel, in reversing the denial of plaintiff’s motion to compel discovery, finds that this was an invalid reason to bar production of the files:

“The magistrate judge accepted this argument, but it is incorrect. An employer accused of discrimination cannot limit discovery simply by restricting during litigation its stated reasons for an adverse action. After all, the true reason behind the action is the very heart of the case, and Brunker presented evidence that Schwan’s may have asserted reasons for firing him other than the one it relied on during litigation. An employer’s shifting explanations are evidence that its stated reasons did not truly motivate the adverse action and that an impermissible one actually did.”

The judge below also entered sanctions against the plaintiff for pursuing the requests, in the amount of $4,423, which the panel also tosses:

“We must vacate them in this instance because the magistrate judge unreasonably imposed them in response to Brunker’s discovery requests. First, we have already ruled that the magistrate judge improperly denied part of the requested discovery (regarding Szabo’s dishonesty). Second, after Brunker asked for reconsideration, the magistrate judge himself allowed discovery of the personnel file of the former supervisor involved in the termination. Thus, those requests were not unjustified, and sanctions would be inappropriate. See FED. R. CIV. P. 37(a)(5)(B).”

On the merits, the panel also found a genuine issue of material fact about the manager’s motives:

“The record contains adequate evidence to support a theory that Schwan’s regarded Brunker as being disabled in the major life activities of walking, caring for himself, and speaking. For example, the day before he left for the Mayo Clinic, Schwan’s issued Brunker multiple ‘corrective action reports,’ including a dress-code violation, suggesting that Schwan’s did not believe that Brunker was able to care for himself because of his apparent condition. Furthermore, Schwan’s disciplined him even though other employees were not cited for similar violations. As for Schwan’s motive for firing Brunker, Schwan’s fired Brunker immediately after he returned from treatment, but Schwan’s backdated the termination notice to before he left for the clinic, evidently hoping to avoid the impression that his apparent condition influenced Schwan’s decision to terminate him.”

Finally, the panel rules that the district court erred in denying motions to compel for discovery bearing on witness credibility and punitive damages:

“Brunker next asserts that the magistrate judge erred in denying his motion to compel his former supervisor, Zoltan Szabo, who had accused Brunker of dishonesty, to explain what dishonest conduct resulted in Szabo’s own discharge from Schwan’s. Brunker contends that the information is a specific instance of Szabo’s character for truthfulness. FED. R. EVID. 608(b). We agree. Under federal law,’specific instances of the conduct of a witness, . . . in the discretion of the court, if probative of truthfulness or untruthfulness, can be inquired into on cross-examination’ concerning the witness’s ‘character for truthfulness or untruthfulness.’ FED. R. EVID. 608(b); Price v. Thurmer, 514 F.3d 729, 731 (7th Cir. 2008). Even if, as Schwan’s argues, Szabo did not participate in Brunker’s termination, he was a potential witness for Schwan’s, and Brunker was entitled to the information to prepare for possible cross-examination.

   *    *    *    *

“The information Brunker requested about the company’s anti-discrimination training,
however, was relevant to the question of punitive damages.”

The National Employment Lawyers Association was granted leave to file an amicus in this case.

Inman v. Klöckner Pentaplast of America, No. 08-1882 (4th Cir. Oct. 22, 2009):  The plaintiff was a VP of Technology for an international pharmaceutical corporation.  He had experienced various difficulties and run-ins with the division’s president, Mr. Tubridy, President of KPA’s North and South American Operations.  The final straw was a disagreement with the president’s plan to impose a salary freeze in 2005.  The president believed that Inman was actively undermining the policy by complaining to other executives about the plan. Plaintiff Inman denied that he had done this.

Mr. Tubridy’s exit speech to plaintiff was, according to the summary judgment record, not a model of decorum:

“On December 15, 2005, Tubridy called Inman into his office and fired him. Inman claims that in that meeting, Tubridy said that Inman ‘did not fit the ‘profile’ or ‘model’ of what is needed in a technical leader in terms of KPA’s presentation to potential buyers of the company.’ J.A. 824. Inman claims that Tubridy said that KPA needed a ‘more energetic person’ as leader of the technical department, ‘for the appearance of a revitalized company.’ J.A. 824. Tubridy told Inman ‘that he wanted KPA work to be more oriented around financial results and budgets tied to compensation, rather than the ‘same old things’ that [Inman] had provided.” J.A. 824. Inman was replaced by 45-year-old David Veasey, who had been Vice-President of Operations. When Veasey took over, KPA changed the position somewhat, eliminating some of what had been Inman’s responsibilities.”

Inman sued under state and federal law claiming age discrimination (and also seeking declaratory relief on a contract to purchase company stock, not discussed here).  The Fourth Circuit reverses summary judgment in this unpublished decision. (The court granted AARP leave to file an amicus brief.)  The court holds that, applying the indirect McDonnell Douglas test, the plaintiff made out genuine issues of material fact on two questions: (1) whether the employee was meeting the employer’s legitimate expectations, and (2) whether he established that he avowed reasons for his termination were pretextual. 

On the first issue, the panel observes:

“[S]ome evidence tends to show that Inman was adequately performing–he received bonuses every year, and he was singled out for praise by Tubridy at a company gathering just a couple of weeks before he was fired. Moreover, if Inman has evidence from which a jury could conclude that the real reason he was fired was his age, the jury could also conclude that the deficiencies that KPA claimed existed in Inman’s work were exaggerated to cover up the age-based motivation for the termination and that any such deficiencies were not sufficient to prevent his performance from being adequate.”

On the second issue, aside from finding a factual dispute about whether the employee had really been insubordinate about the wage freeze, the panel holds that the president’s comments suggested age bias:

“[T]here are the statements that Inman says Tubridy made when he fired him–that Inman did not fit the ‘model’ or ‘profile’ of the ‘energetic’ person needed to project KPA as the ‘revitalized’ company that KPA wanted to present to potential buyers. J.A. 824. There was also evidence concerning KPA’s dealings with Proudfoot Consulting. In October 2005, just a few months before Inman was fired, KPA hired Proudfoot to review its operations and help devise a plan to increase its efficiency and reduce its operating expenses. Tubridy and Veasey (who ultimately replaced Inman, but then was Vice President of Operations) met with Andreas Paetz of Proudfoot on October 27, 2005, to talk about the project. Paetz wanted four KPA employees to be assigned to a task force that would conduct this review and said that they should be ‘young,’ ‘energetic,’ ‘future people.’ J.A. 970. Tubridy made notes on a napkin during the Proudfoot meeting. Tubridy’s napkin-notes included the phrase ‘young, energ[etic].’ J.A. 976. Veasey had a follow-up meeting with Paetz the next day, and Veasey’s handwritten notes from that meeting stated ‘KPA team – young – energetic, future people.’ J.A. 970.”

And although Paetz himself was not a decision maker in this case, the jury could infer that Tubridy adopted these statements:  “given the usual understanding of the word ‘young,’ it is for a jury to decide what Paetz meant, and, more importantly, what Tubridy understood the reference to mean when he wrote it down and whether Tubridy adopted the goal of having ‘young, energetic’ workers as his own.”

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