Frank Brunker v. Schwan's Home Service, Incorpo ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3183
F RANK B RUNKER,
Plaintiff-Appellant,
v.
S CHWAN’S H OME SERVICE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:04 CV 478—James T. Moody, Judge.
A RGUED S EPTEMBER 16, 2008—D ECIDED O CTOBER 22, 2009
Before C UDAHY, FLAUM, and R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Frank Brunker sued Schwan’s
Home Service, Inc., his former employer, for disability
discrimination and failure to accommodate in violation
of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101 et seq. On appeal he challenges the district
court’s grant of summary judgment for Schwan’s, in
which the court determined that Brunker was not dis-
abled. He also challenges earlier rulings denying his
2 No. 07-3183
motions to compel discovery and imposing sanctions on
him for filing those motions. We reverse the grant of
summary judgment, reverse the denial of a motion to
compel, and vacate the award of sanctions.
I.
Schwan’s, a home-delivery food service, hired Brunker
in November 2002 as a Route Manager for its Valparaiso
Depot. As a Route Manager, Brunker sold and delivered
frozen food and other company products to customers. In
February 2003, Brunker started to experience shaking in
his hands, slurred speech, dizziness, lightheadedness, and
headaches. These symptoms occurred once or twice
every day in February and made it difficult for him to
write, walk, speak, and drive. The dizziness lasted up to
four hours each day. Brunker’s doctor performed an
MRI and told him that he might suffer from multiple
sclerosis. Brunker then gave Schwan’s a note from his
doctor requesting that he avoid driving until the cause of
his dizziness was diagnosed. Schwan’s responded by
placing Brunker on disability leave.
Brunker’s doctor wrote another note two months later,
releasing him to return to light-duty work. He was still
restricted from driving, so Schwan’s assigned another
employee to drive with him on his route. The following
month Brunker returned to work without any restrictions
and drove his route on his own, completing it just as
quickly as he had in the past. Within four months of
Brunker resuming his driving, Brunker told Chuck Ramey,
No. 07-3183 3
his then-supervisor, that he wanted to go to the Mayo
Clinic for additional tests and treatment. Around the
same time, Ramey wrote up Brunker for failing to run a
rescheduled route.
On September 8, the day before Brunker left for the
clinic, Ramey wrote up Brunker again, this time for
writing a check with insufficient funds to a fellow em-
ployee; depositing a post-dated check from a customer
earlier than instructed; and failing to adhere to Schwan’s
dress code. Ramey also insisted that Brunker’s route
books needed to be in order before he left. At the clinic,
Brunker was diagnosed with multiple sclerosis, but his
doctor noted that his dizziness episodes, previously a
daily occurrence, had diminished in frequency. Brunker
also told the doctor that his writing difficulty was now just
“variable” and his speech slurred only when he was
fatigued.
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 cus-
tomers 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 func-
tions” on the termination form. He backdated the termina-
tion to September 9, the day Brunker left for the clinic
and before his diagnosis of multiple sclerosis.
As discovery in the district court proceeded, Brunker
sought to compel numerous discovery requests: Schwan’s
financial information; its anti-discrimination training;
4 No. 07-3183
and several personnel files (for route managers with light
duty work, for route managers who were disciplined for
dress-code or route-book violations, for his last and prior
supervisors, for a terminated route manager (Barry
Dwyer), and for a disabled route manager (Mike
Devereaux)). He also requested that his former supervisor,
Zoltan Szabo, who had accused Brunker of dishonesty,
reveal the dishonest conduct that had led to his own
termination. Schwan’s opposed most of this discovery and
contended that because Schwan’s would rely only on
Brunker’s failure to service customers as the reason it
fired him, other discipline that Brunker and his co-
workers received was irrelevant.1 It agreed, however, to
1
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. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 726
(7th Cir. 2005) (“[T]he factfinder’s disbelief of the reasons put
forward by the defendant (particularly if disbelief is accompa-
nied by a suspicion of mendacity) may, together with the
elements of the prima facie case, suffice to show intentional
discrimination.”) (citation omitted); Appelbaum v. Milwaukee
Metro. Sewerage Dist., 340 F.3d 573, 579 (7th Cir. 2003) (same);
Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876-77 (7th
(continued...)
No. 07-3183 5
produce the personnel files of the route managers that
Ramey supervised.
The magistrate judge denied Brunker’s motion to
compel on the grounds of irrelevancy and overbreadth.
He then sanctioned Brunker in the amount of $4,423 for
making those requests. Later, in response to Brunker’s
motion for reconsideration, the magistrate judge ordered
Schwan’s to produce records in the personnel file of one
of Brunker’s former supervisors who had participated in
the termination, but refused to order production of any
other requested materials.
Schwan’s next moved for summary judgment, and
Brunker responded that Schwan’s was precluded from
making arguments about facts on which it had refused
discovery. Specifically, he argued that Schwan’s had
refused to produce personnel files relating to employee
discipline, but then Schwan’s discussed all the dis-
ciplinary action against Brunker (beyond his alleged
failure to service customers). Schwan’s also relied on the
personnel files of Dwyer and Devereaux after refusing to
produce those files. Brunker moved for the district court
to strike those arguments—as the magistrate judge sug-
gested he do if Schwan’s used these materials—and
presented what evidence was available to him to argue
that Schwan’s had not disciplined other employees for
1
(...continued)
Cir. 2002) (same); O’Neal v. City of New Albany, 293 F.3d 998,
1006 (7th Cir. 2002) (same); Stalter v. Wal-Mart Stores, Inc., 195
F.3d 285, 291 (7th Cir. 1999) (same).
6 No. 07-3183
similar misconduct. But the court denied the motion to
strike as moot, reasoning that a jury could not find
Brunker disabled because he was not substantially
limited in a major life activity but rather was only “inter-
mittently or temporarily impaired.” It therefore granted
Schwan’s motion for summary judgment.
II.
A. Summary Judgment
Brunker contends that he presented sufficient evidence
to demonstrate that he is substantially limited in a major
life activity. We review de novo a district court’s grant
of summary judgment, viewing the evidence in the
light most favorable to the nonmoving party. Healy v. City
of Chicago, 450 F.3d 732, 738 (7th Cir. 2006). To survive
summary judgment on his reasonable-accommodation
claim, Brunker must offer evidence that he is a qualified
individual with a disability; that Schwan’s was aware of
his disability; and that Schwan’s failed to reasonably
accommodate the disability. See Mobley v. Allstate Ins. Co.,
531 F.3d 539, 545 (7th Cir. 2008). For his disparate-treat-
ment claim, he must offer evidence that he suffered an
adverse employment action; and that his disability was
a determining factor behind the adverse action. Germano
v. Int’l Profit Ass’n, Inc., 544 F.3d 798, 806 (7th Cir.
2008). Thus, both claims require that Brunker be “dis-
abled.”
We begin our review by examining whether Brunker
has provided sufficient evidence to create an genuine
issue on whether he is disabled. Brunker is “disabled”
No. 07-3183 7
under the ADA if he has an impairment that substantially
limits a major life activity or if he is “regarded as” such.
See 42 U.S.C. § 12102; Bodenstab v. County of Cook, 569
F.3d 651, 656 (7th Cir. 2009). An impairment is a
disability only when its impact is permanent or long term,
29 C.F.R. § 1630.2(j)(2)(iii); Kampmier v. Emeritus Corp., 472
F.3d 930, 937 (7th Cir. 2007). Examples of “intermittent”
impairments, which are not disabilities, include a broken
leg, appendicitis, or isolated bouts of depression. Ogborn
v. United Food & Commercial Workers Union, Local No. 881,
305 F.3d 763, 767 (7th Cir. 2002) (collecting cases). Al-
though Brunker suffers from multiple sclerosis, that fact
alone does not prove that he is disabled under the ADA.
Rather, we must consider the specific facts of Brunker’s
case. See Burnett v. LFW Inc., 472 F.3d 471, 483 (7th Cir.
2006).
Even when viewed in the light most favorable to
Brunker, his impairments are not sufficient to show that he
is disabled. In May 2003 his physician allowed him to
return to work without any restriction at all. Once he
returned, he drove the same route by himself and com-
pleted it just as quickly as he had in the past. In addition,
during Brunker’s stay at the Mayo Clinic, the doctor
noted that his dizziness episodes, previously a daily
occurrence, were occurring less frequently. Brunker
also told the doctor that his writing difficulty was “vari-
able” and his speech slurred “at times when he is
tired.” Accordingly, we agree with the district court’s
conclusion that the evidence in this record shows only
“intermittent” difficulties rather than a substantial limita-
tion on a major life activity.
8 No. 07-3183
But Brunker’s evidence was sufficient to show that
Schwan’s regarded Brunker as disabled. Under a “regarded
as” theory, the plaintiff must demonstrate either that
(1) the employer mistakenly believes that the employee
has an impairment that substantially limits a major life
activity, or (2) the employer mistakenly believes that an
existing impairment, which is not actually limiting, does
substantially limit a major life activity. Nese v. Julian Nordic
Constr. Co., 405 F.3d 638, 641 (7th Cir. 2005). Major life
activities covered by the ADA include “functions such
as caring for [one’s self], performing manual tasks, walk-
ing, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. § 1630.2(i); E.E.O.C. v. Lee’s Log
Cabin, Inc., 546 F.3d 438, 442 (7th Cir. 2008).
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 “correc-
tive 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 viola-
tions. As for Schwan’s motive for firing Brunker, Schwan’s
fired Brunker immediately after he returned from treat-
ment, 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. These facts are
No. 07-3183 9
sufficient to create a triable question as to whether
Schwan’s regarded Brunker as disabled when it fired him.
Because we find a genuine issue as to whether Schwan’s
regarded Brunker as disabled, we must remand the
disability-discrimination claim for further proceedings.
But we see no triable case that Schwan’s failed to accom-
modate his impairment. See Mobley, 531 F.3d at 545.
Brunker asserts that Schwan’s could have given him a
light-duty position rather than what it actually provided:
short-term disability leave and, later on, a second driver
to help with his routes. But Schwan’s was not required
to provide Brunker’s “ideal” accommodation, only that
which is reasonable. See Mays v. Principi, 301 F.3d 866, 872
(7th Cir. 2002). Brunker never requested a light-duty
position after his doctor released him to work without
any restrictions. Even if he made the request, Schwan’s
provided options that effectively accommodated his
limitations. See Mobley, 531 F.3d at 546-47. The district court
did not address the accommodation question, but we
may reach it “so long as that ground was adequately
addressed in the district court and the nonmoving party
had an opportunity to contest the issue.” Cardoso v. Robert
Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005). We therefore
uphold the court’s grant of summary judgment on
Brunker’s reasonable-accommodation claim.
B. Discovery Requests
Brunker first argues that he was entitled to Schwan’s
financial records and the files of employees who requested
light-duty work, because those records may have refuted
10 No. 07-3183
any claim by Schwan’s that an accommodation would be
an undue hardship. See 42 U.S.C. § 12111(10). Although
this information was once relevant, it no longer has any
bearing on the case. Undue hardship is relevant only
to the reasonable-accommodation claim, see 42 U.S.C.
§ 12111(10). As we affirm the grant of summary judgment
on that claim, Brunker was not prejudiced by the denial
of this information.
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. F ED . R. E VID. 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. E VID. 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. Accordingly,
we reverse the denial of his motion to compel Szabo’s
answer. See, e.g., Young v. James Green Mgmt, Inc., 327
F.3d 616, 626-27 (7th Cir. 2003).
Brunker also asserts that the magistrate judge erred in
denying his motion to compel the production of the
No. 07-3183 11
personnel files of supervisors not involved in his termina-
tion and of information about Schwan’s anti-discrimination
training. He argues that this information may reveal a
possible pattern of discrimination and a basis for
punitive damages.
Magistrate judges and district courts have broad discre-
tion to limit a request for the discovery of personnel files,
in order to prevent the dissemination of personal or
confidential information about employees. Balderston v.
Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309,
320 (7th Cir. 2003). The court should consider “the totality
of the circumstances, weighing the value of the material
sought against the burden of providing it,” and taking
into account society’s interest in furthering “the truth-
seeking function” in the particular case before the court.
Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir.
2002) (citation omitted). Here, the magistrate judge prop-
erly found irrelevant the discovery requests regarding
discrimination from supervisors who were not involved
with Brunker’s termination. See Little v. Ill. Dep’t of
Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004) (holding that
evidence of discipline by a supervisor not involved in the
adverse employment decision “sheds no light” on plain-
tiff’s discrimination claim). The information Brunker
requested about the company’s anti-discrimination train-
ing, however, was relevant to the question of punitive
damages. See Lampley v. Onyx Acceptance Corp., 340 F.3d
478, 482 (7th Cir. 2003). Thus, discovery on that point
should have been allowed on this issue.
Brunker also contests the magistrate judge’s denial of his
motion to compel the production of the personnel files of
12 No. 07-3183
route managers overseen by other supervisors. He cites
Humphries v. CBOCS West, Inc., 474 F.3d 387, 404-05 (7th
Cir. 2007), aff’d, 128 S.Ct. 1951 (2008), for the proposition
that the magistrate judge could have more flexibly
applied the criteria that defines which other employees
are similarly situated. But we see no abuse in the magis-
trate judge’s examination of the factors for similarly
situated employees: factors such as whether the em-
ployees had the same supervisor, were subject to the
same standards, had the same job description, or had
comparable experience, education, and other qualifica-
tions. See Warren v. Solo Cup Co., 516 F.3d 627, 630-31 (7th
Cir. 2008). Even in Humphries, the “similarly situated”
employees had the same duties and the same supervisor.
474 F.3d at 406. The magistrate judge appropriately
considered these established factors.
C. Sanctions
Brunker also contests the sanction of fees that the
magistrate judge awarded to Schwan’s because of
Brunker’s motions to compel. We vacate a magistrate
judge’s choice of sanctions only when no reasonable
person would agree that the sanctions were appropriate,
see Maynard v. Nygren, 372 F.3d 890, 893 (7th Cir. 2004). 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
No. 07-3183 13
magistrate judge himself allowed discovery of the person-
nel file of the former supervisor involved in the termina-
tion. Thus, those requests were not unjustified, and
sanctions would be inappropriate. See F ED . R. C IV. P.
37(a)(5)(B). In addition, Brunker’s request for informa-
tion on whether Schwan’s disciplined other employees
who failed to follow its dress code or to keep accurate
route books was justified because, despite Schwan’s
promise that in its motion for summary judgment it
would not rely on Brunker’s discipline for these offenses,
it did so anyway. Schwan’s responds that it used the
information in its summary judgment motion only to
prove that Brunker was not performing his job satisfacto-
rily. See Squibb v. Mem’l Med. Ctr, 497 F.3d 775, 788 (7th Cir.
2007). But that explanation concedes that the informa-
tion was relevant to Brunker’s disparate-treatment claim
because it relates to the even-handedness of the company’s
expectations.
Indeed, Schwan’s went further than merely raising an
issue that it had previously argued was irrelevant. It
faulted Brunker for failing to identify any route manager
who had “similar performance issues” and was treated
more favorably. And Schwan’s also discussed the route
manager (Barry Dwyer) who was terminated for failing
to service customers, despite Schwan’s successful opposi-
tion to Brunker’s request for his personnel file. Similarly,
Schwan’s denied the relevancy of the personnel file of
another former employee, Mike Devereaux, but then
used parts of that file in the summary judgment reply.
Through its actions, Schwan’s concedes that the bulk of
Brunker’s requests were substantially justified. We there-
fore vacate the award of sanctions.
14 No. 07-3183
III.
Accordingly, we A FFIRM in part, V ACATE and R EVERSE
in part, and R EMAND for proceedings consistent with this
opinion. Brunker should be allowed additional discovery
as we have outlined above. Circuit Rule 36 shall apply on
remand.
10-22-09