129 F.3d 120 (7th Cir. 1997), 97-1475, Wagner v. Caterpillar Inc.

• Citation: 129 F.3d 120
• Party Name: Richard WAGNER, Plaintiff, v. CATERPILLAR INC., Defendant.
• Case Date: September 30, 1997
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

Page 120

129 F.3d 120 (7th Cir. 1997)

Richard WAGNER, Plaintiff,

v.

CATERPILLAR INC., Defendant.

No. 97-1475.

United States Court of Appeals, Seventh Circuit

September 30, 1997

Submitted September 4, 1997. ¹

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Before CUDAHY, FLAUM and WOOD, Circuit Judges

ORDER

We affirm the district court decision and adopt the district court's memorandum opinion and order dated January 29, 1997.

AFFIRMED.

MEMORANDUM OPINION AND ORDER

Plaintiff Richard Wagner filed this action against his former employer, Defendant Caterpillar Inc. ("Caterpillar"), alleging that Caterpillar discriminated against him on the basis of his back condition in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and discharged him in retaliation for exercising his rights under the Illinois Workers Compensation Act. Wagner's two-count Complaint, as amended on November 16, 1995, charges Caterpillar with firing him because of a back injury (Count I), and in retaliation for seeking related workers' compensation benefits (Count H). The case was referred to this court on January 19, 1996 and, on May 23, 1996, both parties consented to proceed before a U.S. Magistrate Judge in accordance with 28 U.S.C. § 636(c).

The court has jurisdiction over the first count of the complaint pursuant to 28 U.S.C. § 1331 because the claim arises under federal law. The court has supplemental jurisdiction over the state law retaliatory discharge claim pursuant to 28 U.S.C. § 1367. Venue properly lies in this district under 28 U.S.C. § 1391(b) and (c). On June 12, 1996, Defendant filed motion for summary judgment, arguing that the decision to discharge was actually based on Plaintiff's dishonesty. Specifically, Caterpillar argues, company managers discharged Wagner because they concluded, after viewing a surveillance videotape, that Wagner had lied about his physical condition. Having reviewed the relevant facts, evidentiary materials, and case law, the court concludes that summary judgment is proper and grants Defendant's motion.

FACTUAL BACKGROUND ¹

In September 1968, Caterpillar hired Richard Wagner ("Wagner") to work at its Kendall County Facility, known as the Aurora Plant. (Defendant's Statement of Undisputed Facts (hereinafter "Def.'s 12(M) Statement") ¶ 6.) Wagner initially worked as a diverter, but he later obtained a position as a welder after successfully completing Caterpillar's training program. (Wagner Dep., at 12.) Wagner held this position from 1969 until September 1987 when he suffered a job-related back injury. (Def.'s 12(M) Statement ¶ 6, 7.) Due to attendant complications, Wagner was unable to continue working as a welder. (Id. ¶ 7.) Caterpillar attempted to find him a position that complied with his medical restrictions; in fact, Wagner admits that each time he complained that a job was beyond his capabilities, Caterpillar responded to his concerns. (Id. ¶ 8, 14.) He further acknowledges that Caterpillar's medical department always honored his medical restrictions. (Id. ¶ 14.)

Plaintiff's 1987 Injury and Accommodations

From the time he ceased working as a welder in September 1987 until April 1993, Wagner worked sporadically in various jobs at the Aurora plant. (Def.'s 12(M) Statement ¶ 8; Wagner Dep., at 14-22.) He was limited by numerous medical restrictions, including: a requirement that he be allowed to leave his job to walk around for one to two minutes every half hour; a requirement, that he be allowed to sit for five to ten minutes every half hour; and a prohibition on prolonged bending at the waist, lifting more than 30 pounds, lifting more than 20 pounds while bending, heavy pushing and pulling, and repetitive bending or twisting at the waist. (Def.'s 12(M) Statement ¶ 18.) Wagner believes these restrictions continue today. (Id.)

After his 1987 injury, Wagner was first assigned to weld agricultural tractor frames. He performed that job only for four partial days, however, due to complications with his back. (Def.'s 12(M) Statement ¶ 9.) At that point, Wagner visited Caterpillar's company physician, Dr. Matthew T. Neu, and advised him of his back problems. (Id.) After inspecting the job, Dr. Neu agreed to return Wagner to medical leave, and he modified Wagner's medical work restrictions to include a requirement that Wagner operate a buffer-grinder only if the full weight of the grinder would be supported by the surface being ground. (Id. ¶ 9, 18.) Dr. Neu believed that Wagner's physical condition rendered him unable to continue working as a welder. (Wagner Dep., at 16.) To this day, Wagner himself believes that he is unable to perform any welding jobs. (Def.'s 12(M) Statement ¶ 15.)

After some time on medical leave, Wagner returned to an office job at the Aurora plant performing mostly filing work. (Id. ¶ 10.) Because this was only a temporary position, three or four months later Wagner was assigned to work at a computer terminal. (Id.) When he learned of this assignment, Wagner voiced his objection to his supervisor, contending that the job would exceed his medical restrictions. (Id.) Wagner's supervisor sent him to Dr. Neu, who reviewed Wagner's restrictions and agreed that he needed to be reassigned. (Id.; Wagner Dep., at 19.) Wagner was then placed in the "REP" (light duty) area cleaning parts with a shot blaster. (Def.'s 12(M) Statement ¶ 11.) This job lasted for approximately two or three months until Wagner honored his union's strike at the Aurora facility. (Id.)

After the strike ended, Wagner was recalled in August 1992 to a new position in the REP area, described as "subbing components to hydraulic cylinders." (Id.¶ 12.) As with the previous assignments, Wagner had difficulty adjusting to his new job. At one point during the course of his work, Wagner advised his supervisor, Richard Mulvaney, that the job he was performing was beyond his medical restrictions. (Id. ¶ 34.) Mulvaney responded that Wagner had to either "do the job or [he] was out of there." (Id.) Wagner never asked Mulvaney what he meant by this comment (Id.), nor is there any indication in the record that Mulvaney explained his statement to Wagner.

Wagner claims that Mulvaney made another critical comment when Wagner explained that the REP area workers could not meet the production rates required of regular duty workers. (Plaintiff's Response to Defendant's Statement of Undisputed Material facts (hereinafter "Pl.'s 12(M) Response") ¶ 34.) Specifically, Mulvaney responded that the line "had to be covered and if they couldn't do it, he'd find some way to do it." (Id.) The record does not reveal whether Wagner requested, or Mulvaney offered, any explanation for this statement.

After performing the "subbing components" job for three or four days, Wagner stopped working again due to pain in his back. (Def.'s 12(M) Statement ¶ 12.) Wagner claims that on August 21, 1992, in accordance with a Caterpillar policy requesting employees to report any work-related injury to their supervisor, he advised Mulvaney that he hurt his back while picking up some parts. (Plaintiff's Statement of Additional Undisputed Material Facts (hereinafter "Pl.'s 12(N) Statement") ¶ 1, 2.) Defendant challenges Wagner's assertion that he suffered a separate injury at this time, observing that Wagner's own testimony indicates merely that his back was bothering him, that he was experiencing pain and discomfort, and that he informed Mulvaney that the work was beyond his restrictions. (Defendant's Response to Plaintiff's Rule 12(N)(3)(b) Statement of Additional Facts Purportedly Requiring the Denial of Summary Judgment (hereinafter "Def.'s 12(N) Response") ¶ 1.)

At the time he informed Mulvaney of his back pain, Wagner requested leave to cease working and proceed to Caterpillar's medical department. He claims that Mulvaney denied him permission to leave the job and, instead, told him "[y]ou will finish what you are doing before you go to medical." (Def.'s 12(M) Statement ¶ 35.) At the end of his shift, Wagner did report to Dr. Neu that his back was "bothering" him. (Id. 44 12, 35.) Dr. Neu reviewed the job, determined that the position was beyond Wagner's medical restrictions, and again placed Wagner on medical leave. (Def.'s 12(M) Statement ¶ ¶ 12, 35; Wagner Dep., at 21.) For the next eight months, Wagner remained on medical leave, and Caterpillar continued to pay his salary and reimburse his medical expenses. (Def.'s 12(M) Statement ¶ 35.)

Caterpillar recalled Wagner to work in April 1993, offering him a light assembly job in the REP area. (Id. ¶ 13.) After about three weeks, Wagner complained to Dr. Neu that the sitting was bothering him, prompting Dr. Neu to arrange an appointment with an outside orthopedic surgeon, Dr. Mark Lorenz. (Id.) Dr. Lorenz scheduled Wagner for surgery and recommended that Wagner return to medical leave status pending the operation. (Id.)

Plaintiff's Roofing Activities

Wagner was still on medical leave in June 1993 when Dale Carhill, a human resources official at the Aurora plant, received an anonymous tip that Wagner was "roofing his house." (Id. ¶ 19; Carhill Dep., 16.) Prior to this tip, Carhill had been suspicious of Wagner's medical condition because he had observed Wagner walking with an apparently inconsistent limp. (Def.'s 12(M) Statement ¶ 19.) On one occasion, Carhill followed Wagner outside to observe his walk and noticed that Wagner's limp seemed to disappear once he entered Caterpillar's parking lot. (Pl.'s 12(N) Statement ¶ 21; Carhill Dep., at 51.) After receiving the anonymous tip, Carhill drove by Wagner's house and noticed scaffolding and roofing materials. (Carhill Dep., at 15-16.) Based on the tip and his own preexisting suspicions, Carhill contacted R.J. McGough and...