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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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