Kemerly v. Bi-County Services, Inc., Cause No. 1:00-CV-254 (N.D. Ind. 10/7/2003)

• Decision Date: 07 October 2003
• Docket Number: Cause No. 1:00-CV-254.
• Citation: Kemerly v. Bi-County Services, Inc., Cause No. 1:00-CV-254 (N.D. Ind. 10/7/2003) (N.D. Ind. 2003)
• Parties: JOHN KEMERLY, Plaintiff, v. BI-COUNTY SERVICES, INC., and INDIANA GUARANTY ASSOCIATION, Defendants.
• Court: U.S. District Court — Northern District of Indiana

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JOHN KEMERLY, Plaintiff, v.BI-COUNTY SERVICES, INC., and INDIANA GUARANTY ASSOCIATION, Defendants.

Cause No. 1:00-CV-254.

United States District Court, N.D. Indiana.

October 7, 2003.

MEMORANDUM OF DECISION AND ORDER

ROGER COSBEY, Magistrate Judge.

I.INTRODUCTION

This matter is before the Court¹ on the fully briefed motion for partial summary judgment filed by Defendant, Bi-County Services, Inc.("BCS"), on April 3, 2001.²Plaintiff, John Kemerly("Kemerly"), filed a Response Brief on May 8, 2001, and BCS filed a Reply on August 20, 2003.

Kemerly's complaint cites to three statutes as the basis for his claims: the Family and Medical Leave Act("FMLA"), 29 U.S.C. § 2601, et seq., the Employee Retirement Income Security Act("ERISA"), 29 U.S.C. § 1001, et seq., and the Americans with Disabilities Act("ADA"), 42 U.S.C. § 12111, et seq.After briefing, it appears that Kemerly is advancing six (6) claims against BCS stemming from his termination: (1) denial of his FMLA right to paid leave and other benefits, 29 U.S.C. § 2615(a)(1);(2) retaliation for exercising those FMLA rights, 29 U.S.C. § 2615(a)(2);(3) preemptive denial of ERISA-protected health insurance benefits, 29 U.S.C. § 1140(better known as ERISA § 510);(4) disability discrimination, 42 U.S.C. § 12112(a);(5) ADA retaliation, 42 U.S.C. § 12112(a); and (6) a failure to reasonably accommodate his disability, 42 U.S.C. § 12112(b)(5)(A); The current motion seeks summary judgment on all but the first claim.(SeeDef's Mem. In Supp. of Mot. for Partial Summ. J.at 14.)

The record consists of the declaration of BCS's President, John Whicker("Whicker")("WhickerDecl. ¶ ___"), Whicker's deposition ("Whicker Dep.at ___"), the deposition of BCS's Human Resource Manager, Marcia Nicholas("Nicholas")("Nicholas Dep.at ___"), BCS's Employee Handbook and various internal memos, Kemerly's deposition ("Kemerly Dep.at ___"), Kemerly's affidavit ("KemerlyAff. ¶ ___"), and various other documents that may be referenced infra.

After examining the motion and the relevant law, the Court finds that the motion should be GRANTED.

II.FACTUAL BACKGROUND³

BCS, a not-for-profit agency, provides educational and work opportunities for disabled people, either by getting them jobs in the local community or by employing them in its workshops, one located in Bluffton and the other in Decatur, Indiana.(WhickerDecl. ¶ 4;Whicker Dep.at 6; Pl.'s Resp., Ex. D.)In the spring of 1998, BCS decided to hire its first full-time salesperson in hopes of increasing revenue and proceeded to advertise for a "Sales Representative."⁴(Whicker Dep.at 5, 10-13; Pl.'s Resp., Ex. F.)

Kemerly, who suffers from degenerative joint disease in his right hip (Pl.'s Resp., Ex. V), applied and was interviewed (Kemerly Dep.at 16-17; Pl.'s Resp., Exs. I, J).Whicker hired Kemerly effective April 6, 1998(Kemerly Dep.at 16-17; Pl.'s Resp., Ex. K), and BCS enrolled him in its group health insurance plan, effective July 1, 1998(Pl.'s Resp., Exs. N, O, P, Q, R).Kemerly started at One Thousand One Hundred Fifty-Three and 85/100 Dollars ($1153.85) biweekly, plus a five percent (5%) commission on his gross sales⁵(Pl.'s Resp., Ex. L.) Kemerly told BCS about his hip condition from the start, assured them he could meet the job's physical demands, and in fact passed a post-hire physical.(Kemerly Dep.at 17-18, 26.)

Kemerly's job was to generate sales and increase revenue.⁶(Id. at 26;Whicker Dep.at 10.)Indeed, looking at just that side of the ledger, Kemerly produced positive results.More precisely, from April 1997 through March 1998(i.e., before Kemerly's hire), BCS's total sales were Sixty Six Thousand Seven Hundred Seventeen and 93/100 Dollars ($66,717.93), but from April 1998 through March 1999, after he was hired, BCS's sales more than doubled, to One Hundred Twenty Eight Thousand Four Hundred Forty One and 21/100 Dollars ($128,441.21).(Pl.'s Resp., Ex. U.)However, BCS looks at these numbers more critically, noting that although sales initially increased and grew overall, they dropped as time went on.(Def's Replyat 4.)For instance, while monthly sales from July to November 1998 averaged Fifteen Thousand Five Hundred Fifty and 50/100 Dollars ($15,550.50), from December 1998 to March 1999, the last months of Kemerly's employment, sales only averaged Four Thousand Five Hundred Ninety-Two and 9/100 Dollars ($4592.09) per month.(See Pl.'s Resp., Ex. U.)

Although disputed, the first inkling that Kemerly might be in trouble at BCS came on February 10, 1999, when Whicker drafted a memo purporting to document a meeting with Kemerly.(Kemerly Dep.at 41-45; Pl.'s Resp., Ex. Y.)Among other things, the memo suggests that there was "no work in the [Bluffton] workshop," although Kemerly reportedly told Whicker he was working on some leads.(Id.)While Kemerly admits he had a meeting with Whicker on that date, he contends it "was not about `low sales' or performance issues."(KemerlyAff. ¶ 6.7.)

Another memo from Whicker to Kemerly, allegedly written on February 22, 1999, expressed a concern about a lack of results for the Bluffton workshop and documented a downward sales trend through January 1999.(Kemerly Dep.at 45-48; Pl.'s Resp., Ex. Z.)The memo ended by observing that "[t]he month of February is not going to be a good month for us either from a sales standpoint."(Pl.'s Resp., Ex. Z.)Kemerly contends that he never received this memo or its attachment, its figures are purposely misleading, and he did not have meetings with Whicker as frequently as the memo indicates.(Kemerly Dep.at 45-49.)

On February 25, 1999, Whicker allegedly met with Kemerly again to discuss the lack of jobs in the Bluffton Workshop.(Pl.'s Resp., Ex. AA.)In this meeting, Whicker allegedly informed Kemerly that BCS would soon be "forced to make a business decision as to whether or not to keep a sales representative."⁷(Id.)Furthermore, Whicker allegedly informed Kemerly that the "situation was a serious one and that [BCS] could not continue with little sales."⁸(Id.)However, Kemerly not only denies this meeting occurred, but also says he was never warned or counseled about his sales performance or told that his job was in jeopardy.(KemerlyAff. ¶¶ 6.7, 6.8, 6.12.)

In any event, notwithstanding the dispute about the alleged February meetings, it is undisputed that on March 2, 1999, Whicker wrote Kemerly again to discuss "[j]obs for [the] Bluffton workshop."(KemerlyDep. 50-54; Pl.'s Resp., Ex. BB.)Specifically, Whicker told Kemerly he was "not satisfied with five (5) job quotes since the middle of November."(Pl.'s Resp., Ex. BB.)Unlike the prior memos, Kemerly admits receiving this one, a point he clearly has to concede since he responded by detailing the five (5) jobs which were considered for the Bluffton Shop and describing an additional nineteen (19) calls he made on other customers.(KemerlyDep. 50-54; Pl.'s Resp., Ex. CC.)

Shortly thereafter, Kemerly's hip condition became so painful and debilitating that he needed surgery.(Kemerly Dep.at 20-21, 61-63; Pl.'s Resp., Ex. V.)On April 19, 1999, Kemerly gave Nicholas a doctor's slip indicating he would be receiving a total hip replacement and would be unable to work for approximately four (4) months.(Pl.'s Resp., Ex. V;Nicholas Dep.at 6.)Nicholas granted Kemerly FMLA leave that same day and then told Whicker that Kemerly needed to be off work for four (4) months.(Pl.'s Resp., Ex. W;Nicholas Dep.at 6-7).Whicker was admittedly "flabbergasted" by the news.(Whicker Dep.at 21.)

Two days later, on April 21, 1999, Whicker terminated Kemerly, explaining that "[i]t isn't working."(Kemerly Dep.at 55.)It was then that Kemerly told Whicker that Nicholas had already granted him medical leave.(Id. at 62-63.)Whicker responded with, "Why doesn't anybody tell me anything?"(Id. at 63.)However, Whicker concedes that Nicholas had actually told him two (2) days earlier about Kemerly's hip surgery and resulting inability to work.⁹(Whicker Dep.at 20-21.)

According to BCS, Kemerly was terminated because he was "unable to produce results sufficient to justify the cost of his continued employment."(WhickerDecl. ¶ 11.)In fact, with Kemerly's termination, BCS simply abandoned the idea of having a sales representative (Def.'s Answer to First Set of Interrogs., No. 5;Def's Answer to Second Set of Interrogs., No. 12), apparently a wise decision in retrospect given that sales for the Bluffton Workshop actually increased after Kemerly was gone.(WhickerDecl. ¶ 13.)

However, Kemerly disputes the honesty of BCS's stated reason for his termination and points to several facts he thinks are suspicious.For instance, Kemerly points to Whicker being "flabbergasted" to learn that Kemerly needed time off, followed by his termination only two days later.In addition, Kemerly observes that had he continued his employment at BCS, his hip surgery would have been covered by BCS's health insurance, something Whicker also knew.(Whicker Dep.at 22.)Kemerly is also critical that BCS failed to follow its own progressive discipline procedures set out in its Employee Handbook (Pl.'s Resp., Ex. Sat 8-9; Def's Answer to Pl.'s Second Set of Interrogs.Nos. 1, 2, 6) and thinks it suspicious he was fired for low sales when he was never given any sales goals or quotas (Whicker Dep.at 7).Kemerly further claims that BCS is misrepresenting his overall sales performance by omitting his alleged sales for the Decatur workshop.(KemerlyAff. ¶ 6.3, 6.13.)Finally, Kemerly says that BCS's claim of insufficient results does not square with what it allegedly told the Indiana Workforce Development Office: that Kemerly was discharged "due to [his] inability to perform the work."(Pl.'s Resp., Ex. GG.)

III.STANDARD OF REVIEW

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,...