Arroyo v. Volvo Grp. N. Am., LLC

• Decision Date: 06 October 2015
• Docket Number: No. 14–3618.,14–3618.
• Citation: 805 F.3d 278,32 A.D. Cases 198
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: LuzMaria ARROYO, Plaintiff–Appellant, v. VOLVO GROUP NORTH AMERICA, LLC, d/b/a Volvo Parts North America, Defendant–Appellee.

805 F.3d 278

32 A.D. Cases 198

LuzMaria ARROYO, Plaintiff–Appellant

v.VOLVO GROUP NORTH AMERICA, LLC, d/b/a Volvo Parts North America, Defendant–Appellee.

No. 14–3618.

United States Court of Appeals, Seventh Circuit.

Argued May 26, 2015.

Decided Oct. 6, 2015.

Rehearing and Rehearing En Banc Denied Nov. 4, 2015.

John P. Derose, Attorney, Derose & Associates, Hinsdale, IL, for Plaintiff–Appellant.

Falon M. Wrigley, Attorney, Constagny Brooks & Smith, St. Louis, MO, for Defendant–Appellee.

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

Opinion

KANNE, Circuit Judge.

LuzMaria Arroyo is an Army Reservist and veteran who suffers from post-traumatic stress disorder

(“PTSD”). She worked for Volvo Group North America, LLC, d/b/a Volvo Parts North America (“Volvo”) from June 2005 until she was fired in November 2011. Volvo says it fired her for violations of its attendance policy, but Arroyo claims the real reason was discrimination on the basis of her military service and her disability.

Arroyo sued Volvo in federal district court for discrimination, retaliation, and failure to provide reasonable accommodations in violation the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. (“USERRA”), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Arroyo also brought a state-law claim for intentional infliction of emotional distress. The district court granted Volvo's motion for summary judgment on all counts and awarded Volvo, as the prevailing party, its reasonable costs.

We now reverse the district court's order with respect to Arroyo's discrimination claims under USERRA and the ADA because Arroyo has raised genuine, material factual issues that should be resolved at trial. We also vacate the district court's award of Volvo's costs. In all other respects, however, we affirm the judgment of the district court.

I. Background

Because this is an appeal from summary judgment, we summarize the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in her favor, without necessarily vouching for their accuracy. Malin v. Hospira, Inc., 762 F.3d 552, 554 (7th Cir.2014). LuzMaria Arroyo worked as a material handler in Volvo's Parts Distribution Center in Joliet, Illinois, from June 13, 2005, to November 8, 2011. Her main job was to retrieve vehicle parts with a forklift and pack them for shipment. From 2009 on, she worked the second shift from 4:30 p.m. to 12:30 a.m.

A. Arroyo's Military Leave; Management's Reaction

Volvo hired Arroyo with knowledge that she was a member of the U.S. Army Reserve. She was the only active reservist at the Joliet facility. During her employment, she deployed twice to Iraq and Kuwait: from April 2006 to May 2007 and from April 2009 to August 2010. (She had also deployed another time before she came to work at Volvo.) Additionally, Arroyo took regular leave for weekend drills, training, and other military activities. In all, she received more than 900 days of military leave during her six-and-a-half years at Volvo. The company allowed her to modify her work schedule to take leave, and she was never directly disciplined for doing so.

But Arroyo points to evidence, including numerous internal emails obtained in discovery, suggesting that her supervisors were frustrated from the beginning about her schedule and absences. In the fall of 2005, Arroyo traveled several times to Fort Benning, Georgia, where her unit was based, for military drills. In addition to the days of actual training, Arroyo also took off time beforehand and afterward to drive to and from Georgia. That apparently frustrated material handling supervisor Michael Temko, who questioned her about why she needed the additional time. Temko later emailed Keith Schroeder, the director of distribution, to ask, “[A]re we required to give her the day before and day after for travel?” Schroeder forwarded the inquiry to Bruce Olin, the Director of Labor Relations, adding:

I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty.... I certainly give her credit for serving our country but of course I am also responsible for our business needs.

According to Arroyo's affidavit, Schroeder later told her in a meeting, with Temko present, that her military duties were becoming an undue hardship for Volvo and that she needed to transfer to a local unit. Corroborating this account, an email several weeks later from HR Manager Cecilia Jarvis to Schroeder referred to “the undue hardship it [i.e., Arroyo's absences] is causing to our operation.”

On October 28, Olin responded to Schroeder's earlier email. Olin explained:

First, we do not have to grant time off for [Arroyo's] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.

Schroeder forwarded the email to Temko, predicting “LuzMaria will challenge us.” Following Olin's advice, Temko told Arroyo “that she is not entitled to a travel day.... [A]ny day that she takes for travel ... will fall under our attendance policy.” In other words, she would be penalized.

As it turned out, Olin's advice was wrong. After doing some research, Jarvis clarified that the law “now treats voluntary orders and involuntary orders [what Olin called ‘extra training’] the same.” And the Employer Support for the Guard and Reserve (“ESGR”), which got involved at Arroyo's request, explained that she was entitled to “travel time plus an eight hour rest period following her drill before having to report to work” (as Jarvis reported to Temko at the end of December).

Arroyo deployed to Baghdad from April 2006 to May 2007. In April 2007, Temko complained to Olin that Arroyo had contacted him only once since she deployed. “For our planning/scheduling purposes,” Temko explained, “it would be beneficial for us to know her status.” He asked whether he could contact her unit. Olin responded: “Unfortunately, there isn't a lot we can do.... Per the law we have to wait for her. Sorry it isn't what you wanted to hear.”

When Arroyo returned to work, according to her affidavit, Temko again suggested that she seriously consider transferring to a local unit, and Schroeder called her into his office and made it “very clear” that her job depended on her doing so. Therefore, in March 2008, she changed her duty station (reluctantly, she says) to Darien, Illinois.

Arroyo received orders to go on active-duty training with her new unit from April to October 2008. When she returned, Arroyo reports, Temko and Schroeder expressed dissatisfaction with the fact that she had been away for so long. The next month, Arroyo was away again for training from November 3 to 10. She had the next day off for travel, but then did not show up for three more days of work. In an internal email, Temko discussed disciplining, suspending, or possibly firing her for her absences. But when Schroeder called Arroyo, he received a copy of new orders extending her training from November 12 to 26. Although Schroeder had “issues with her lack of communications,” as he explained in an email, “we likely have no recourse due to her military service.”

From mid-April 2009 to mid-August 2010, Arroyo deployed overseas again in support of Operation Iraqi Freedom. Although USERRA gave her 90 days post-deployment to notify Volvo of her plans, see 38 U.S.C. § 4312(e)(1)(D), Schroeder opined in an email that she “should have returned to work on August 15, 2010.” Management decided to offer her a voluntary severance package and expressed hope that she would accept it. They presented it to her on the first day after Arroyo returned to work, September 28, 2010. But she declined the package.

B. Arroyo's PTSD and Requested Accommodations

After returning from her second deployment, Arroyo received treatment for symptoms of PTSD and was formally diagnosed in January 2011. She checked herself into the emergency room on December 23, 2010; the next day she emailed Schroeder to tell him what was happening and that the doctor ordered her not to work through the 30th. In an internal email, Schroeder considered disciplining her, but she later provided a doctor's note and discharge paperwork excusing the absences.

Around the same time, Arroyo provided documentation about her rights to one of her supervisors, Sherrie Jankowski. Jankowski then wrote to Schroeder on December 2, 2010, that “[Arroyo] is really becoming a pain with all this.” Later that month, after Arroyo checked into the ER, Jankowski reported in an email to Schroeder (possibly in jest) “several rumors for [Arroyo's] not being here,” including that “[s]he's on vacation in Hawaii.”

Arroyo took FMLA and disability leave from December 23, 2010, through March 22, 2011. When she returned, she began therapy for her PTSD. Volvo allowed her to leave her shift early or arrive late once a week to attend therapy sessions from April through October 2011. Arroyo also requested a number of other accommodations. Volvo granted many of them, including: a quiet place to meditate before work and during breaks; a mentor; time off for counseling; and breaks and support during panic or anxiety attacks. Other requested accommodations—a more flexible schedule, use of earplugs or headphones in both ears, day-to-day guidance and feedback, putting all communications in writing, and disability awareness training—were under review.

C. Volvo's Discipline and Termination of Arroyo

Material handlers at the Joliet facility were subject to a local attendance policy, administered by Temko and Schroeder. Employees receive whole or fractional “oc...