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. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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