Brunker v. Schwan's Home Service, Inc.

• Decision Date: 22 October 2009
• Docket Number: No. 07-3183.,07-3183.
• Citation: 583 F.3d 1004
• Parties: Frank BRUNKER, Plaintiff-Appellant, v. SCHWAN'S HOME SERVICE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

583 F.3d 1004

Frank BRUNKER, Plaintiff-Appellant, v. SCHWAN'S HOME SERVICE, INC., Defendant-Appellee.

No. 07-3183.

United States Court of Appeals, Seventh Circuit.

Argued September 16, 2008.

Decided October 22, 2009.

Anna M. Hearn, Attorney (argued), Valparaiso, IN, for Plaintiff-Appellant.

Heather L. Wilson, Attorney (argued), Frost Brown Todd, Indianapolis, IN, Defendant-Appellee.

Before CUDAHY, FLAUM, and ROVNER, Circuit Judges.

ROVNER, 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 disabled. He also challenges earlier rulings denying his 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, 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 employee; 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 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.

As discovery in the district court proceeded, Brunker sought to compel numerous discovery requests: Schwan's financial information; its anti-discrimination training; 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 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 disciplinary 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 suggested 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 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 "intermittently 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-treatment 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 "disabled."

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" 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). Although 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 completed 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 "variable" 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 limitation on a major life activity.

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, walking, 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...