McCreary v. Libbey-Owens-Ford Co.

• Decision Date: 06 February 1998
• Docket Number: No. 97-1571,LIBBEY-OWENS-FORD,97-1571
• Parties: 7 A.D. Cases 1115, 11 NDLR P 257 Robert and Wana McCREARY, Plaintiffs-Appellants, v.CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1159

132 F.3d 1159

7 A.D. Cases 1115, 11 NDLR P 257

Robert and Wana McCREARY, Plaintiffs-Appellants, v. LIBBEY-OWENS-FORD CO., Defendant-Appellee.

No. 97-1571.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 22, 1997.

Decided Dec. 18, 1997.

Rehearing Denied Feb. 6, 1998.

Christopher Cross (argued), Vernon J. Petri, Indianapolis, IN, for Plaintiffs-Appellants.

Michael D. Marine (argued), Kelly A. Evans, Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Defendant-Appellee.

Before CUDAHY, KANNE, and DIANE P. WOOD, Circuit Judges.

KANNE, Circuit Judge.

Robert McCreary injured his back and subsequently experienced problems performing his job at Libbey-Owens-Ford Co. ("LOF"). LOF terminated McCreary's employment after he falsified his time sheet. McCreary brings this suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging that LOF failed to accommodate his disability and discharged him because of his disability. He also brings a claim for intentional infliction of emotional distress, and Wana McCreary brings a claim for loss of consortium. The magistrate judge granted summary judgment on all counts in favor of LOF. We affirm in part and reverse in part.

I. HISTORY

Because the district court granted summary judgment to LOF, we recite the facts in the light most favorable to McCreary. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). LOF hired McCreary in 1991 to work as a production team member in the soldering department of its glass fabrication plant in Shelbyville, Indiana. McCreary's job summary stated, "Team member is responsible to see that leads are properly soldered on backlites, tested and packed for shipping. Other duties require taping, scratch polishing and forklift operations." Harding Dep. Ex. 10. McCreary and the other members of his team performed these duties in three different areas of the soldering department: the production line, the taping tables, and the table stations. All three areas require the team member to lift, bend, and twist. Because of McCreary's height (six feet, four inches), he had to bend and twist considerably when working in the soldering department.

On January 11, 1993, McCreary twisted his knee in the parking lot at LOF. While McCreary was recovering from this injury, LOF assigned him to the quality control department and to office work. During his recuperative period, McCreary would sometimes attend physical therapy and physician appointments during work hours, and he would mark his attendance card for full shifts even when he left early for such appointments. LOF was aware of this practice but never disciplined McCreary for it. McCreary returned to work in the soldering department.

On July 7, 1993, McCreary suffered a back injury while at work. The next day, McCreary saw a physician who diagnosed his injury as a "lumbosacral strain" and placed him on the following work restrictions: "Light work with no lifts greater than 20 pounds, no strenuous pushing/pulling bending until 7-12-93." The physician also placed McCreary on pain medication and instructed him to ice and exercise his back daily.

McCreary returned to work later that day and gave his doctor's report to Sandra Kuhn, LOF's occupational health nurse. Kuhn took this report to McCreary's acting team leader, Chris Storey, and together they determined that the taping position in the soldering department did not violate McCreary's work restrictions.

Later, McCreary's supervisor, Jim Harding, found out about McCreary's work restrictions. He called McCreary into his office and confronted him, pointing his finger into McCreary's face and with a raised voice saying, "[t]his is a bunch of bullshit." Harding then told McCreary, "Either go back on the line or go home and you're not getting paid for it." McCreary returned to the soldering department.

On July 12, 1993, McCreary had a follow-up visit with his physician, who diagnosed his injury as "lumbosacral strain superimposed upon lumbar spondylosis-L5S1." The physician instructed McCreary to continue physical therapy and wrote out work restrictions as follows: "Continue same work restrictions with no lifts over 20 lbs. and no frequent bending, twisting or strenuous pushing, pulling." McCreary gave his physician's report to Kuhn after returning to work. Later, McCreary's physician diagnosed him as also having "degenerative L5-S1 disk with Vacuum Sign" and "Sciatica."

McCreary continued to work in the soldering department. McCreary informed his physical therapist that this work was aggravating his back injury. The physical therapist relayed this information to Kuhn, who relayed it to David Barchick, LOF's Human Resource Manager, on August 16, 1993.

McCreary also told John Bishop, LOF's safety specialist, that none of the work in the soldering department was within his work restrictions and requested that he be allowed to work in the quality control department. Bishop said he would check into the situation, but that McCreary should consult Harding and follow Harding's instructions as to where to work. Bishop later told McCreary that he could not work elsewhere because LOF needed work done in the soldering department. LOF only allowed McCreary to work in quality control when the soldering department ran out of tape or parts.

McCreary has testified that none of the jobs in the soldering department met his work restrictions or could have been modified to meet his restrictions. McCreary continued to work in the soldering department, despite the pain and the aggravation to his injury because his family needed his income.

On August 18, 1993, the battery in McCreary's back pain management device (called a TENS unit) died, placing McCreary in great pain. McCreary asked Steve Koch, a team leader in quality control, if he could leave to replace the battery, and Koch gave him permission to do so. McCreary also told Bishop and Storey that the battery had died and that he needed to leave to replace it. McCreary then left work around 5:00 p.m., but signed himself out as leaving at 7:00 p.m., when his shift was supposed to end. On his way out, McCreary waved goodbye to Tracy Moser, LOF's human resource specialist.

Moser, thinking it strange that McCreary had left work before the end of his shift, reported McCreary's departure to Barchick, the human resources manager. Barchick, with the help of Bradley Lewis, LOF's production manager, began to investigate McCreary's early departure. On August 25, 1993, Barchick held a meeting with McCreary and memorialized the meeting in a memorandum:

I met with Rob McCreary in my office on Wednesday, August 25th to follow up on a meeting he had with Brad Lewis on Monday, August 23rd. Here is a recap of the conversation.

I had presented Rob with the fact that Brad had checked Community Hospital and they said they had no record of his coming in to pick up clips for his tens unit.

Rob initially stated that he went to Community Hospital but did not see his therapist. I told him Brad had also checked at the desk and they had no record of his coming to the hospital.

Rob then said he had gotten to the hospital too late and it was closed, so he went home.

I then challenged Rob on his inconsistencies and told him if he had any interest in saving his job, he needed to be totally honest with me.

I then said, "You really did not go to the hospital did you?" Rob started to cry and said "No."

He said he was in pain and just needed to get away from work. He also said ["]I understand the consequences of being dishonest.["]

I told Rob I was going to keep him on suspension until I could present Jim Harding and Brad Lewis with the new facts.

I later spoke with both Jim and Brad. Rob will be terminated for intentional falsification of his time sheet and dishonesty.

Barchick Dep. Ex. 2.

McCreary admitted in his deposition that he knew he was required to document his arrivals and departures from the plant, regardless of the reasons therefor; that LOF had trained him on how to properly fill out his time sheet; and that he knew that dishonesty could result in his termination.

LOF discharged McCreary the next day, August 26, 1993. On August 27, 1993, Maria Worland, LOF's benefits administrator, held an exit interview with McCreary during which she filled out an Exit Interview Questionnaire. Under "Reasons for Leaving" Worland wrote, "falsifing [sic] time sheet (due to back injury)." Barchick Dep. Ex. 35. Worland testified that the notation "(due to back injury)":

was simply my note concerning Robert McCreary's stated reasons for leaving the LOF premises on the day at issue.... I did not write "(due to back injury)" because Robert McCreary was being terminated due to his back injury. To the contrary, when I completed Robert McCreary's "Exit Interview Questionnaire" my understanding of the reasons for his termination was that he had falsified his time sheet.

Worland Aff. pp 11-12.

When Barchick was asked in his deposition why LOF terminated McCreary, he stated:

He had falsified his time sheet. He left the premises without permission and then when we tried to verify the whereabouts, his story did not check out. He basically fabricated his story about going to the doctor or physical therapy when in fact he had gone home, and we felt based on those situations, especially the fact that all of those are grounds for immediate dismissal, we didn't have any other choice but to let him go, so we terminated him.

Barchick Dep. at 104-05.

McCreary applied for disability benefits with the Social Security Administration. On December 16, McCreary filed a Disability Report in support of his application, in which he stated:

1. When did your condition first bother you: July 7, 1993.

3(a). When did your condition finally make you stop working? August 26, 1993.

3(b). Explain how your condition now keeps you from working. I can no-longer stand for no-more than one half...