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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. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  2. It's a capital offense...one for you Latin scholars..

  3. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

  4. The promise of "Not to Tell" is the biggest lie ever given to a Birth Mother. THERE WERE NEVER ANY PROMISES GIVEN TO ANY OF US. One of the lies used to entice us to give up our Babies. There were many tactics used to try to convince us that it was best for Mother and Baby to cut the cord at birth. They have no idea of the pain and heartache that was caused by their attitude. The only thing that mattered was how great and wonderful they appeared to the prospective parents and their community. I completed my search, but that didn't stop the pain, heartbreak and the tears of the last 62 Years. I keep track and do know that he is alive, well educated and a musician. That little knowledge in itself is a Godsend to me. I pray that other Mothers also know that much and more to help heal their pain and open wounds. open wounds.

  5. please do your firm handles cases on breach of contract? please advise...

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