Marinov v. Trs. of Purdue Univ., Case No. 4:07–CV–0054 JD.

• Decision Date: 29 March 2011
• Docket Number: Case No. 4:07–CV–0054 JD.
• Parties: Vassil M. MARINOV, Plaintiff, v. The TRUSTEES OF PURDUE UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

275 Ed. Law Rep. 232

804 F.Supp.2d 849

Vassil M. MARINOV, Plaintiff,

v.The TRUSTEES OF PURDUE UNIVERSITY, et al., Defendants.

Case No. 4:07–CV–0054 JD.

United States District Court, N.D. Indiana, South Bend Division.

March 29, 2011.

Denise K. LaRue, Richard W. McMinn, Haskin & LaRue LLP, Indianapolis, IN, for Plaintiff.

Deborah Berry Trice, Tandra M. Stovall, Trenten D. Klingerman, Stuart & Branigin LLP, Lafayette, IN, for Defendants.

MEMORANDUM OPINION AND ORDER

JON E. DeGUILIO, District Judge.

On September 17, 2007, Plaintiff, Vassil M. Marinov (“Marinov”), filed a Complaint in this Court. [DE 1]. In his Complaint, Marinov names The Trustees of Purdue University (“Purdue”) and Alysa Christmas Rollock (“Rollock”), as Defendants. Specifically, Marinov alleges that Purdue failed to make reasonable accommodations and terminated his employment in violation of the Americans with Disabilities Act (“ADA”). [DE 1 at 5]. In addition, Marinov contends that Purdue terminated his employment and treated other non-Bulgarian employees more favorably, in violation of Title VII. [DE 1 at 5]. Next, Marinov contends that Purdue retaliated against him for filing a Charge of Discrimination with the Equal Employment Opportunity Commission, wherein he complained of the aforementioned conduct. [DE 1 at 5–6]. Finally, Marinov additionally alleges that Defendant Rollock violated his due process rights relative to his employment with Purdue. [DE 1 at 6].

On February 25, 2010, the Defendants filed a motion for summary judgment in regard to all of Marinov's claims. [DE 27]. On May 17, 2010, Marinov filed a response in opposition. [DE 38]. On June 1, 2010, the Defendants filed a reply. [DE 40].

Also on June 1, 2010, the Defendants filed a motion to strike several exhibits attached to Marinov's response brief, arguing primarily that the documents were not properly authenticated. [DE 41]. On June 15, 2010, Marinov filed a response in opposition. [DE 45]. In addition, on the same day, Marinov filed a motion for leave to file supplemental exhibits, offering to supplement his original exhibits with affidavits of authenticity. [DE 44]. The Defendants did not respond to Marinov's motion for leave, nor did they file a reply in support of their motion to strike.

On June 3, 2010, this case was reassigned to the undersigned for all purposes. [DE 43].

I. Facts

The following facts are viewed in the light most favorable to the nonmovant, Marinov. Where facts are contested, the Court has so indicated.

On May 5, 1998, Marinov, who is Bulgarian, began working full time as a Service Worker III in the Purdue Memorial Union (“PMU”) at Purdue University. (Marinov Dep., DE 39–1 at 2). Marinov's job responsibilities consisted of custodial duties within the PMU, and he, like the other PMU service staff, were supervised by Michelle McBrite (“McBrite”), the PMU Facilities Manager. (McBrite Decl., DE 29–2 at 2). Marinov asserts that all service workers who he works with are non-Bulgarian and non-disabled. (Marinov Aff., DE 39–13 at 3). Initially, from 1998 to February 2004, Marinov was assigned to clean “The Oasis” area. (Marinov Dep., DE 39–1 at 3). However, in February 2004, Marinov was reassigned to the supermarket area and west stairs. (Marinov Dep., DE 39–1 at 3–4).

In the new areas, Marinov was required to work with different cleaning chemicals than those used to clean The Oasis. (Marinov Dep., DE 39–1 at 4). Marinov contends that these new, “Clean on the Go,” chemicals, caused him to have chemical allergies and injuries. (Marinov Dep., DE 39–1 at 5). In particular, Marinov asserts that these products caused him difficulty breathing and gave him a general feeling of weakness. (Marinov Dep., DE 39–1 at 5). Because of these issues, Marinov states that he began asking McBrite and others if he could use the cleaning chemicals that he used previously, but his requests were denied. (Marinov Dep., DE 39–1 at 5).

In March 2004, Marinov was issued formal disciplinary warnings for sleeping at work on two occasions. (McBrite Decl., DE 29–2 at 3). Marinov claims that he was not sleeping but had, instead, suffered from a chemical reaction that caused him to collapse and fall down unconscious. (Marinov Dep., DE 39–1 at 5). Marinov asserts that the “Clean on the Go” products were the cause of his alleged injury. (Marinov Dep., DE 39–1 at 5).

As a result, Purdue advised Marinov to see his family physician, Dr. Scott Miethke, in regards to his alleged reactions. (Marinov Dep., DE 39–1 at 5; McBrite Decl., DE 29–2 at 3). On March 8, 2004, Dr. Miethke referred Marinov to Dr. Carl Griffin, an occupational health physician, for further assessment. (Marinov Dep., DE 39–1 at 6; McBrite Decl., DE 29–2 at 3, 10–11). On April 8, 2004, Dr. Griffin issued a report that was inconclusive regarding the cause of Marinov's reactions but, nevertheless, advised that Marinov return to “modified work with no use of Clean on the Go” products, and to have a recheck in two (2) weeks. (Marinov Dep., DE 39–1 at 7, 20–21). Marinov contends that Purdue required him to continue working with the Clean on the Go products, although McBrite would argue otherwise. (Marinov Dep., DE 39–1 at 7; McBrite Decl., DE 29–2 at 3). On June 4, 2004, Marinov saw Dr. Griffin a second time, who opined again that Marinov should stop working with any chemical or chemical fumes. (Marinov Dep., DE 39–1 at 7). Dr. Griffin gave notice of Marinov's new restrictions directly to Purdue, and thereafter, Marinov received a telephone call from McBrite who told Marinov to stop going to work because they received the documentation that Marinov was restricted from working with any chemical. (Marinov Dep., DE 39–1 at 8). As a result, Marinov did not work for four (4) months. (Marinov Dep., DE 39–1 at 8).

On October 10, 2004, Marinov filed a grievance regarding Purdue's response to his alleged chemical reactions. (Marinov Dep., DE 39–1 at 8–9). Marinov believed that he could return to work, but just not use Clean on the Go products. (Marinov Dep., DE 39–1 at 9). On October 11, 2004, Dr. Miethke released Marinov to return to work but advised that Marinov needed to “avoid Clean on the Go products until further notice.” (McBrite Decl., DE 29–2 at 13; Marinov Dep., DE 39–1, at 8, 22). Thereafter, on October 18, 2004, Marinov received a response from Bob Mindrum, the Director of PMU, stating that because Marinov was “cleared to return to work by [his] physician, ... with restrictions,” then Marinov could return to work on October 20, 2004, and that different chemicals would be provided for him to use. (Marinov Dep., DE 39–1 at 8–9, 23).

On October 20, 2004, Marinov returned to work in the supermarket area. (Marinov Dep., DE 39–1 at 9–10). From October 2004 to March 2006, Marinov was permitted to use alternative chemicals and suffered no chemical reactions or injuries. (Marinov Dep., DE 39–1 at 9–10). Yet, during that time, in July 2005, Marinov was warned for sitting down in a dark office while he was supposed to be cleaning. (McBrite Decl., DE 29–2 at 3). Marinov claimed that his actions were due to a chemical allergy, even though he was no longer using Clean on the Go cleaning products. Id. Also during this time frame, on February 11, 2006, McBrite issued Marinov a letter indicating that he was committing several unsanitary food safety violations. (McBrite Decl., DE 29–2 at 5, 15). Marinov was warned that his work performance needed to immediately improve or disciplinary steps would be taken. Id.

In March 2006, the PMU cleaning department was reorganized and the cleaning assignments were changed. (McBrite Decl., DE 29–2 at 3–4). Shortly before the change was implemented, all personnel, including Marinov, were provided descriptions of the new cleaning assignments and work areas, and were permitted to submit their top three choices of assignments. (McBrite Decl., DE 29–2 at 4). After speaking with his assistant manager, Jason Gant, Marinov indicated that he wanted to work as a floor scrubber (or “Floor Care”) and work in the Rec Center because Gant and Marinov believed that these assignments would accommodate Marinov's restrictions. (Marinov Dep., DE 39–1 at 10–11, 25). Instead, Marinov was assigned to his same shift as a “relief worker” in Pappy's and the kitchen area. (Marinov Dep., DE 39–1 at p. 10; McBrite Decl., DE 29–2 at 4). A non-Bulgarian, non-disabled PMU service worker, Mr. Terry Hunley, was given the night shift assignment that Marinov preferred to work. (Marinov Aff., DE 39–13 at 2). Of the thirteen PMU service workers that submitted preferences, four employees, including Marinov, received assignments other than the ones they expressed interest. (McBrite Decl., DE 29–2 at 4).

On February 27, 2006, Marinov informed McBrite that he could only work the Floor Care and Rec Center positions due to his chemical allergies, and was concerned about his new assignment. (Marinov Dep., DE 39–1 at 25). McBrite informed Marinov that he was not selected for and would not be allowed to work the Floor Care or Rec Center assignments because the positions would now require working with chemicals that Marinov was not able to use. (Marinov Dep, DE 39–1 at 24). McBrite clarified that the only position that would reasonably accommodate Marinov's restriction to avoid Clean on the Go products was the ‘relief position’ that he was assigned. Id. In his relief position, he would be covering all areas during other employees absences and days off, but he would be allowed to continue using the GP Forward Chemical which he had been using in the supermarket area without any problems. Id. She also advised Marinov that if he was starting to experience new problems with different chemicals, such as the GP Forward, then he would need to provide medical documentation concerning the new limitations, because Purdue's current documentation only stated that Marinov could not use Spartan Clean on the Go products. Id.

Thereafter, on March 6, 2006,...