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Court erred in judgment, sanctions order

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The 7th Circuit Court of Appeals overturned summary judgment in favor of a company on a former employee's suit for disability discrimination, finding there is a genuine issue as to whether the company regarded the employee as disabled when it fired him.

In Frank Brunker v. Schwan's Home Service, Inc., No. 07-3183, Frank Brunker sued his former employer, Schwan's Home Service Inc., for disability discrimination and failure to accommodate in violation of the Americans with Disabilities Act. Route manager Brunker began experiencing shaking in his hands, slurred speech, dizziness, and other impairments leading Schwan's to place him on temporary disability leave. Brunker later returned to light-duty work in which he rode along with another employee because he was restricted from driving. He also told his supervisor that he wanted to go to the Mayo Clinic for more tests because he may have multiple sclerosis.

Before he left for the clinic, Brunker was written up several times for failing to adhere to the dress code, failing to run a rescheduled route, and other issues. After he returned from the clinic - where he was diagnosed with multiple sclerosis - he was fired for unsatisfactory performance and for being unable to perform essential job duties. The termination form was backdated to the day Brunker left for the clinic.

The trial court denied Brunker's request for various information in discovery, including personnel files, financial information, and that his former supervisor - who accused Brunker of being dishonest - reveal the dishonest conduct that led to his firing. The court imposed sanctions on Brunker on his motions to compel on grounds of irrelevancy and overbreadth, ruled Brunker couldn't be considered disabled, and granted summary judgment for Schwan's.

The trial court was correct in finding Brunker wasn't disabled because he only had intermittent difficulties in major life activity. But, his evidence was enough to show Schwan's regarded him as disabled, creating a genuine issue as to whether the company treated him as disabled, wrote Judge Ilana Rovner. The Circuit Court upheld the grant of summary judgment for Schwan's on Brunker's reasonable-accommodation claim because evidence shows they did accommodate him by providing him short-term disability and having a driver help him on his routes.

Brunker wasn't entitled to the company's financial records, records of employees who requested light-duty work, or those of route managers, wrote the judge, but the trial court should have allowed his motion to compel his former supervisor to explain what dishonest conduct led to his firing. Discovery also should have been allowed on the company's anti-discrimination training, as it was relevant to the question of punitive damages, wrote Judge Rovner.

Brunker's motions to compel discovery weren't unjustified, so sanctions were inappropriate.

"In addition, Brunker's request for information about whether Schwan's disciplined other employees who failed to follow its dress code or to keep accurate route books was justified because, despite Schwan's promise that in its motion for summary judgment it would not rely on Brunker's discipline for these offenses, it did so anyway," she wrote.

Schwan's even conceded the bulk of Brunker's requests were substantially justified. The case is remanded for further proceedings consistent with the opinion and Circuit Rule 36 applies on remand.

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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