Opinion
NO. 2:02-CV-00207-LJM-WGH
May 14, 2004
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants', Owens-Illinois, Inc., and Owens-Brockway Plastics, Inc. (collectively "Owens" or "Defendants"), Motion for Summary Judgment on the claims of Plaintiff, Dawn A. Roberts ("Plaintiff' or "Roberts"). Roberts' Amended Complaint alleges: (1) retaliatory discharge for making a worker's compensation claim; (2) violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq.; and (3) violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Roberts invokes the Court's jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1367 (supplemental jurisdiction). The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. BACKGROUND A. NON-COMPLIANCE WITH LOCAL RULES
Local Rule 5.1(a) requires that the text in all Court filings be double-spaced, except for quoted material. L. R. 5.1(a). As noted by Defendants, Plaintiff has single-spaced 3 and% consecutive pages of argument in her 33-page response. If Plaintiff had complied with Local Rule 5.1(a) by double-spacing all of her argument, her response brief would have been approximately 40 pages, which exceeds the maximum page limit on briefs filed in this Court. L. R 7.1(b) (no brief shall exceed 35 pages and no reply brief shall exceed 20 pages without permission of the Court). Plaintiff did not seek permission of the Court for an extension of the page limit with respect to her response brief.
Plaintiff also has failed to comply with Local Rule 56.1(b). Rule 56.1(b) provides:
The [response] brief shall include a section labeled `Statement of Material Facts in Dispute' which responds to the movant's asserted material facts by identifying the potentially determinative facts and fact disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment.
L.R. 56.1(b). Instead of responding to Defendants' fact section by identifying and focusing on potentially determinative facts and fact disputes in her "Statement of Material Facts in Dispute" section, Plaintiff simply recites her version of the facts and includes numerous facts that are clearly not in dispute. This failure to comply with Local Rule 56.1(b) forces the Court to sift through the parties' fact sections to determine if there actually are factual disputes. As a sanction for Plaintiff's failure to comply with Local Rules 5.1(a), 7.1(b), and 56.1(b), the Court will not consider the last three pages of her response brief (pages 30-33).
Defendants also filed a Motion to Strike Portions of Plaintiff's Surreply Brief, arguing that portions of Plaintiff's reply are beyond the scope of Local Rule 56.1(d). 56.1(d) provides:
Surreply, If, in reply, the moving party relies upon evidence not previously cited or objects to the admissibility of the non-moving party's evidence, the non-moving party may file a surreply brief limited to such new evidence and objections, no later than seven days after service of the reply brief.
With respect to the instant motion, Defendants did file a reply brief that relied in part upon evidence not previously cited and objected to some of Plaintiff's evidence. In her surreply brief, consistent with her rights under Rule 56.1(d), Plaintiff responded to Defendants' new evidence and objections. In addition, in a section entitled "Owens' `Abandoned Claims' Argument," Plaintiff responded to legal arguments that Defendants made in their reply brief. Because Plaintiff's response to "Owens' `Abandoned Claims' Argument" does not address new evidence or evidentiary objections, it is beyond the proper scope of a surreply brief and the Court will not consider it. The Court GRANTS Defendants' Motion to Strike Portions of Plaintiff's Surreply Brief.
Ten days after Owens filed its reply brief, Roberts filed a Motion to Submit the Supplemental Affidavit of Juanita K. Pearison. Doc. No. 37. Owens objects to the late submission of the affidavit, arguing that Roberts should have been submitted the affidavit with her response. The Court agrees with Owens, and DENIES Plaintiffs Motion to Submit the Supplemental Affidavit of Juanita K. Pearison.
B. THE FACTS 1. Termination of Roberts' Employment at Owens
Roberts was employed as a material handler at Owens-Brockway's Sullivan, Indiana, plant when she suffered a back injury on February 6, 2002. Def.'s Stmt. of Facts at 5. Roberts was pulling a cart containing about 1,500 pounds of plastic material off an elevator on the day she injured her back. Def.'s Ex. 3. After initiating her worker's compensation claim, Roberts saw Dr. Puchalapalli, a worker's compensation doctor, about her back injury. Id; Pl.'s Stmt. of Facts at 1. Dr. Puchalapalli placed her on initial restrictions of no lifting over 6-10 pounds and no pushing/pulling over 6-10 pounds on February 9, 2002. In addition, Dr. Puchalapalli placed Roberts on medication and recommended physical therapy. Def.'s Ex. 3. Due to this weight restriction, Roberts was placed in a "light duty" position. Roberts remained in the "light duty" position for approximately 13 weeks, until her termination on May 8, 2002. Def.'s Stmt. of Facts at 5.Roberts felt that she was not being adequately treated by Dr. Puchalapalli. Pl.'s Stmt. of Facts at
2. At that point, Owens' worker's compensation administrator assigned a case manager to Roberts and insisted that Roberts permit the case manager to participate in all of her medical appointments. Id. Roberts requested, and was granted, leave to see a second doctor. Def.'s Stmt. of Facts at 5. The second physician, Dr. Bergeron, diagnosed Roberts with a herniated disc injury, and he treated her with pain medication and physical therapy. Id. Dr. Bergeron would not approve a surgery or refer Roberts to another doctor for consultation about surgery. Pl.'s Stmt. of Facts at 2. Owens is self-insured for worker's compensation purposes. Id.
In April 2002, Roberts had meetings with the plant manager, Max Straub ("Straub"), and the plant production manager, Scott Seehawer ("Seehawer"), to advise them about her difficulties with her worker's compensation physicians and to inform them of her intention to consult with a surgeon. Pl.'s Stmt. of Facts at 2. Roberts specifically told Straub and Seehawer that she had sent her MRI to a doctor in Tennessee, that the doctor in Tennessee had recommended surgery, and that she intended to pursue that course. Id. at 3. Seehawer stated that he probably told her to wait and see what the worker's compensation doctor did before she acted on surgery recommendation. Id.
After evaluating Roberts on May 7, 2002, Dr. Bergeron wrote a report in which he placed Roberts on permanent restrictions of no lifting over 15 pounds, no pushing/pulling over 11-25 pounds, and no squatting. Def.'s Ex. 13. In Dr. Bergeron's opinion, Roberts had reached her maximum medical improvement. Roberts Depo. at 106-107. Roberts admitted in her deposition that she could not perform the normal duties of the material handler position with the restrictions placed on her:
Q: With that [15 pound weight restriction], you could not perform the normal duties of your material handling job, correct? A: Correct.
Roberts Depo. at 111.
On May 8, 2002, Seehawer received Dr. Bergeron's report that placed Roberts on permanent restrictions. Pl.'s Stmt. of Facts at 3. After Seehawer and Straub reviewed Dr. Bergeron's report on May 8, 2002, they decided to terminate Roberts' employment at Owens. Id. Seehawer informed Roberts of their decision that same day, and gave her a termination letter:
After further review of your permanent restrictions as a result of a back injury, Owen's Illinois has determined that the company is unable to accommodate these restrictions. As a result of these restrictions, Owens-Illinois has no job classification that you can perform at this facility. Therefore, I regret to inform you that your employment with Owens-Illinois has been terminated . . .
Def.'s Ex. 17.
2. Roberts' Back Surgery
Roberts made a May 6, 2002, appointment with her family doctor. Pl.'s Stmt. of Facts at 3. After the May 6, 2002, appointment, Roberts' family doctor referred her to Dr. Stephanian, a neurosurgeon. Id. On May 7, 2002, Roberts informed Seehawer about the referral to the neurosurgeon. Id.
On May 10, 2002, Roberts had her first appointment with Dr. Stephanian. Pl.'s Stmt. of Facts at 4. On May 23, 2002, Roberts underwent fusion surgery. Id. In a June 7, 2002, note, Dr. Stephanian opined that Roberts could return to work within six to eight weeks from the May 23, 2002, surgery. Id. On November 4, 2002, Dr. Stephanian released Roberts to return to work without restrictions. Id.
3. Grievance by the Union
After the termination of her employment, Roberts' union filed a grievance on her behalf. As a result of the grievance, Owens agreed to return Roberts to work if she could obtain a medical opinion releasing her to work without restrictions. Def.'s Stmt. of Facts at 7. Roberts did obtain a release to work without restrictions, and Owens agreed to rehire her when it received the notice on January 6, 2003. Id. Owens also reimbursed Plaintiff for any COBRA expenses and out-of-pocket medical expenses she incurred related to her surgery. Id. In addition, Owens paid Roberts back pay from November 4, 2002, the date Roberts received the fall medical release from Dr. Stephanian, until January 20, 2003, the date Roberts returned to work. Id.
On March 10, 2003, Roberts' worker's compensation attorney sent GAB Robbins a letter offering to settle Roberts' worker's compensation claim. Def.'s Ex. G, Tab A. Owens offers the letter as evidence in this lawsuit, and Roberts argues that the letter is an inadmissible offer to compromise under FED. R EVID. 408. The Court agrees with Roberts and it will not consider the letter.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548 (1986). See also United Ass'n of Black Landscapes v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, the Court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to [her] case, one on which [she] would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
III. DISCUSSION
Roberts alleges that Owens violated her rights under two federal statutes, the FMLA and the ADA. In addition, Roberts advances a state law theory of retaliatory discharge for filing a worker's compensation claim. The Court will first consider the parties' arguments related to the federal statutes.
A. FMLA CLAIM
Roberts alleges that Owens violated the Family and Medical Leave Act of 1993 when it terminated her employment on May 8, 2002. Specifically, Roberts asserts that Owens retaliated against her for attempting to exercise her FMLA rights, and that Owens wrongfully interfered with her FMLA rights. Owens denies Roberts' assertions, and moves for summary judgment on the FMLA claim.
The FMLA establishes two categories of protections for employees. First, the FMLA contains prescriptive protections thatare expressed as substantive statutory rights. See King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). The Act provides eligible employees of a covered employer the right to take unpaid leave for a period of up to 12 work weeks in any 12-month period for a serious health condition as defined by the Act. See id. (citing 29 U.S.C. § 2612(a)(1)). After the period of qualified leave expires, the employee is entitled to be reinstated to the former position or an equivalent one with the same benefits and terms of employment that existed prior to the exercise of the leave. See id. (citing 29 U.S.C. § 2614(a)). To insure the availability of these guarantees, the FMLA declares it "`unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided.'" Id. (quoting 29 U.S.C. § 2615(a)(1)).
When an employee alleges a deprivation of these substantive guarantees, the employee must demonstrate, by a preponderance of the evidence, only entitlement to the disputed leave. In such cases, the intent of the employer is immaterial. See id. (citing Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997) ("We shall continue to resolve suits under the FMLA . . . by asking whether the plaintiff has established, by a preponderance of the evidence, that he is entitled to the benefit he claims.")).
In addition to the substantive guarantees contemplated by the Act, the FMLA also affords employees protection in the event they are discriminated against for exercising their rights under the Act. See id. (citing 29 U.S.C. § 2615(a)(1)-(2)). Specifically, "`[a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave.'" Id. (quoting 29 C.F.R. § 825.220(c)). Furthermore, an employer may not consider the taking of FMLA leave as a negative factor in employment actions. See id. Because the FMLA's implementing regulations bar certain discriminatory conduct, the protections contemplated by these sections have been characterized as proscriptive in nature. See id.
In addition to the aforementioned statutory provisions, the United States Department of Labor has promulgated regulations implementing the FMLA, as authorized by 29 U.S.C. § 2654. Of significance to the instant case, § 29 C.F.R. § 825.208 provides:
(a) In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.
Once the employer has notice that an employee has a qualifying reason for FMLA leave, "the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave." 29 C.F.R. § 825.208(b)(1).
Owens also directs the Court's attention to the Labor Department Regulation pertaining to "light duty." The "light duty" regulation provides, in relevant part:
Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA. For example, employees (or their collective bargaining representatives) cannot "trade off' the right to take FMLA leave against some other benefit offered by the employer. This does not prevent an employee's voluntary and uncoerced acceptance (not as a condition of employment) of a "light duty " assignment while recovering from a serious health condition (see § 825.702(d)). In such a circumstance the employee's right to restoration to the same or an equivalent position is available until 12 weeks have passed within the 12-month period, including all FMLA leave taken and the period of "light duty."29 C.F.R. § 825.220(d) (emphasis added).
1. Substantive Claim or Retaliation Claim?
Roberts advances both a substantive FMLA claim and an FMLA retaliation claim. Owens argues that Roberts' FMLA claim should be characterized as a substantive claim. Roberts offers little resistance to Owens' characterization argument and focuses on her substantive FMLA claim. See Pl.'s Response at 18 ("For Roberts, an FMLA interference theory is certainly easier to understand and prove when compared to a retaliation theory."). The Court agrees with Owens that Roberts' FMLA claim should be characterized as a substantive claim. Because Roberts never asked for FMLA leave, and Owens never designated her "light duty" period as FMLA-qualifying, it is difficult for Roberts to assert that she was retaliated against for exercising her FMLA rights. See Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 2000) (observing that the thrust of an FMLA claim is substantive when the employer does not think that the employee took FMLA leave in the first place). Accordingly, the Court will consider the merits of Roberts' substantive FMLA claim.
2. Merits of Substantive FMLA Claim
As mentioned above, to establish her substantive FMLA claim, Roberts must demonstrate by a preponderance of the evidence that she was entitled to the disputed FMLA leave. Owens makes a series of related arguments on this issue. First, Owens asserts that Roberts was not entitled to 12 weeks of unpaid leave because she had permanent medical restrictions that prohibited her from returning during the 12-week FMLA period. Second, Owens maintains that even if Roberts was entitled to FMLA leave, that leave period started in February 2002 when she was injured and placed on "light duty." Citing 29 C.F.R. § 825.220(d), a Labor Department Regulation, Owens contends that a period of "light duty" counts as FMLA leave and that Roberts exhausted her FMLA leave by working more than 12 weeks on "light duty." Finally, citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155 (2002), Owens argues that she eventually received everything she was entitled to under the FMLA — more than 12 weeks of "light duty," leave from May 8, 2002, (the date she was fired) until her full medical release on November 4, 2002, and health benefits during the entire period. In response to Owens' arguments, Roberts maintains that Owens interfered with her FMLA rights by not notifying her that any of her "light duty" or other leave was FMLA-designated leave.
The Court will begin with a discussion of the recent Supreme Court decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) because all of Owens' arguments are related to it. In Ragsdale, the defendant/employer had granted the plaintiff/employee a total of 30 weeks of leave to recover from cancer. See Ragsdale, 535 U.S. at 86. When the plaintiff requested an extension beyond the 30 weeks, the defendant refused her request and fired her when she did not report to work. See id. The plaintiff then filed suit, alleging that C.F.R. § 825.700(a), a Labor Department Regulation, required her employer to give her 12 additional weeks of leave because her employer had never informed her that her 30-week absence would count against her FMLA leave. See id.
The Supreme Court concluded that the regulation was invalid because it altered the statutory framework of the FMLA. See id. at 88-89. The Court explained:
The challenged regulation is invalid because it alters the FMLA's cause of action in a fundamental way: It relieves employees of the burden of proving any real impairment of their rights and resulting prejudice. In the case at hand, the regulation permitted Ragsdale to bring suit under § 2617, despite her inability to show that Wolverine's actions restrained her exercise of FMLA rights. Section 825.700(a) transformed a company's failure to give notice — along with its refusal to grant her more than 30 weeks of leave — into an actionable violation of § 2615. This regulatory sleight of hand also entitled Ragsdale to reinstatement and backpay, even though reinstatement could not be said to be "appropriate" in these circumstances and Ragsdale lost no compensation "by reason of Wolverine's failure to designate her absence as FMLA leave. By mandating these results absent a showing of consequential harm, the regulation worked an end run around important limitations of the statute's remedial scheme.Id. at 90-91.
The regulation that the Supreme Court invalidated in Ragsdale pertained to employers who provide more generous benefits than required by the FMLA. The Court explicitly declined to address the validity of the more generalized individualized notice provisions of 29 C.F.R. § 825.208, which are at issue in the instant case. See. id. at 88. However, the individualized notice provisions of § 825.208, which require employers to promptly notify an employee if leave has been designated as FMLA leave, are similar to the provision invalidated by Ragsdale, and district courts have properly questioned the continuing validity of § 825.208 in the wake of Ragsdale. See, e.g., Sims v. Schultz, 305 F. Supp.2d 838, 845 (N.D. Ill. 2004) ("While section 825.208 was not specifically addressed, it is similar and its validity may fairly be questioned after Ragsdale."); Donahoo v. Master Data Cntr., 282 F. Supp.2d 540, 555 (E.D. Mich. 2003) (finding for defendant even though defendant did not notify plaintiff of FMLA designation under § 825.208 because plaintiff did not establish that she was prejudiced by the lack of notice).
Specifically, 29 C.F.R. § 825.700 provides, in relevant part:
What if an employer provides more generous benefits than required by the FMLA?
(a) If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement.
After Ragsdale, an employer's failure to give notice that leave has been designated as FMLA leave, standing alone, does not violate the FMLA. A plaintiff must demonstrate that the lack of notice caused her FMLA rights to be prejudiced. Summers v. Middleton Reutlinger, P.S.C., 214 F. Supp.2d 751, 757 (W.D. Ky. 2002) ("[P]laintiff cannot merely rely on the fact that defendant designated her FMLA leave retrospectively, she must demonstrate her rights under the FMLA were violated and she was harmed as a result."). Ragsdale instructs courts to take into consideration the reality of what would have happened had the notice been given, including whether or not the employee would have returned to work after taking leave. See Ragsdale, 535 U.S. at 88-91 ("The fact that the employee would have acted in the same manner if notice had been given is, in the Secretary's view, irrelevant . . . Even if Wolverine had complied with the notice regulations, Ragsdale still would have taken the entire 30-week absence. Blind to this reality, the Secretary's provision required the company to grant Ragsdale 12 more weeks of leave . . . To determine whether damages and equitable relief are appropriate under the FMLA, the judge or jury must ask what steps the employee would have taken had circumstances been different — considering, for example, when the employee would have returned to work after taking leave.").
In light of Ragsdale, the Court must consider whether Roberts' FMLA rights were prejudiced under the circumstances of this case. The Court will begin with Owens' "light duty" argument. A Labor Department Regulation indicates that an uncoerced period of "light duty" counts as FMLA leave. 29 C.F.R. § 825.220(d). It is undisputed that Roberts performed a "light duty" position for more than 12 weeks and that she received employment benefits during that time. It is also undisputed that, had Owens' notified Roberts that it was designating her "light duty" period as FMLA leave, Roberts still would not have been able to return to her material handler position at the end of the 12-week "light duty" period in early May 2002 due to her medical restrictions and subsequent surgery. As a consequence, Roberts cannot establish that she was prejudiced by Owens' failure to notify her about her FMLA rights. Like the plaintiff in Ragsdale, Roberts received her FMLA entitlement — 12 weeks of leave (albeit "light duty" work) and continued medical benefits during that period.
Even if Roberts' "light duty" period does not count as FMLA leave and Owens violated the FMLA by not giving her 12 weeks of leave after it learned that her restrictions were permanent, the underpinnings of Ragsdale still militate against Roberts. The plaintiff in Ragsdale lost because she could not prove "any real impairment of [her] rights and resulting prejudice." Ragsdale, 535 U.S. at 90. Although Owens fired Roberts on May 8, 2002, when it learned that her medical restrictions were permanent, it eventually reinstated her as a material handler when she did recover, paid for her medical expenses associated with the surgery, and gave her back pay from the date of her full medical release until the date she actually returned to work. Roberts is not entitled to any other relief under the FMLA's remedial provision. 29 U.S.C. § 2617 (limiting relief to benefits lost by reason of the violation, actual monetary losses sustained as a direct result of the violation, and appropriate equitable relief).
Roberts maintains that she still has compensatory and punitive damage claims, and a lost wage claim from May 8, 2002, the date of her termination, until November 4, 2002, the date of her full medical release. Pl.'s Resp. at 6 n. 2. However, in contrast to Title VII, the FMLA does not permit plaintiffs to recover compensatory damages for emotional pain and suffering. 29 U.S.C. § 2617 (limiting monetary recovery to employment benefits lost by reason of the violation or actual monetary losses sustained as direct result of violation). See also Hite v. Biomet, Inc., 53 F. Supp.2d 1013, 1024 n. 13 (N.D. Ind. 1999). Nor are punitive damages available under the FMLA. See Hite, 53 F. Supp.2d at 1024 n. 13. Finally, Roberts' assertion that she has a lost wage claim from May 8, 2002, the date of her termination, until November 4, 2002, the date Dr. Stephanianreleased her to work, overlooks the fact that the FMLA only entitles qualifying workers to 12 weeks of unpaid leave and the fact that she was unable to work during that entire period due to her medical restrictions. Moreover, Owens eventually paid for her medical expenses incurred during that period, and provided her with back pay from the date that Dr. Stephanian released her to work until the date that she actually returned to work. In short, Roberts has received everything she is entitled to under the FMLA. In other words, Roberts cannot establish that she been prejudiced by any violation of her FMLA rights. See Ragsdale, 535 U.S. at 90. Thus, the Court GRANTS Owens' Motion for Summary Judgment with regard to Roberts' FMLA claim.
B. ADA CLAIM
Roberts also asserts that Owens' decision to terminate her employment violated the ADA. Roberts frames her ADA claim as a "regarded as disabled" claim. Owens maintains that it did not regard Roberts as disabled within the meaning of the ADA, and contends that Roberts was not qualified to perform the essential functions of the material handler position. In response, Roberts argues that Owens regarded her as disabled in the major life activity of working.
The central anti-discrimination provision of the ADA provides:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42U.S.C. § 12112. In other words, in order to establish her ADA discrimination claim, Roberts must show that (1) Owens regarded her as disabled within the meaning of the ADA, (2) she was qualified to perform the essential functions of the material handler job, and (3) she suffered from an adverse employment action. See Dyke v. O'Neal Steel, Inc., 327 F.3d 628, 631 (7th Cir. 2003).
The Court will assume that Roberts can establish that Owens regarded her as disabled within the meaning of the ADA, and turn to the question of whether a reasonable jury could find that she was qualified to perform the essential functions of the material handler job. Under the ADA, a "qualified individual with a disability" is one who, with or without reasonable accommodation, can perform the essential functions of the job. 42 U.S.C. § 12111(8). The inquiry into whether or not Roberts was a "qualified individual with a disability" is a two-step process. See Bay v. Cassens Transportation Co., 212 F.3d 969, 974 (7th Cir. 2000). First, the Court must consider whether "the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licences, etc." 29 C.F.R. app. § 1630.2(m). If the individual meets the first prong, the Court then considers "whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation." Id. The Court will focus on whether or not Roberts was a "qualified individual with a disability" on May 8, 2002, which is when Owens decided to terminate her employment. See Bay, 212 F.3d at 974 ("Whether or not an individual meets the definition of a qualified individual with a disability is to be determined as of the time the employment decision was made.").
Because Owens does not argue that Roberts did not have the appropriate skills and background to be a material handler, the only issue is whether Roberts could perform the essential functions of the position, withor without reasonable accommodation, on May 8, 2002. Owens asserts that Roberts could not perform the essential functions of the material handler position with the lifting and pushing/pulling restrictions imposed by her doctor. In her response, Roberts focuses on the "regarded as disabled" prong and fails to respond to Owens' arguments that she was not a qualified individual on May 8, 2002, for purposes of the ADA. The Court ultimately agrees with Owens' position on this issue.
Roberts consulted with two doctors prior to the termination of her employment. Dr. Puchalapalli, the first doctor that Roberts saw after her February 2002 injury, prescribed medication, recommended physical therapy, and placed her on initial restrictions of no lifting over 6-10 pounds and no pushing/pulling over 6-10 pounds on February 9, 2002. Roberts requested and was granted leave to see a second physician, Dr. Bergeron. Dr. Bergeron also treated Roberts with pain medication and physical therapy. After evaluating Roberts on May 7, 2002, Dr. Bergeron wrote a report in which he placed Roberts on permanent restrictions of no lifting over 15 pounds, no pushing/pulling over 11-25 pounds, and no squatting. In Dr. Bergeron's opinion, Roberts had reached her maximum medical improvement. Roberts Depo. at 106-107.
Roberts notes in her response that she sent her MRI to a doctor in Tennessee and that the doctor recommended surgery. However, the doctor's recommendation that she pursue surgery does not tend to prove that Roberts could perform the essential functions of the material handler job on May 8, 2002.
The material handler position required Roberts to push carts containing hundreds of pounds of materials. Def.'s Ex. 3. With permanent restrictions of no lifting over 15 pounds, no pushing/pulling over 11-25 pounds, and no squatting, Roberts was not qualified to perform the essential functions of the material handler position. In fact, Roberts admitted in her deposition that she could not perform the normal duties of the material handler position after her February 6, 2002, injury:
The Court allowed Roberts to submit a supplemental brief about the deposition of Jack Heady, an Owens employee. Roberts contends that Heady's testimony tends to undermine Owens' explanation of the essential functions of her job. However, Heady worked for Owens in the set-up position, and Roberts was a material handler. Heady's testimony about the responsibilities of the set-up position is relevant to the question before the Court.
Q: With that [15 pound weight restriction], you could not perform the normal duties of your material handling job, correct?
A: Correct.
Roberts Depo. at 111. Moreover, Roberts does not explain how she could have performed the essential functions of her job with a reasonable accommodation. One possible accommodation would have been to request that a co-worker to do the heavy lifting that Roberts could not handle, but the Seventh Circuit has consistently held such requests to be unreasonable. See Peters v. City of Mansion, 311 F.3d 835, 845 (7th Cir. 2002) (collecting cases that rejected similar requests as unreasonable because such an accommodation would require another person to perform essential function of employee's job).
That Roberts elected to have post-termination surgery and returned to full strength by November does not save her ADA claim. Roberts was unable to work as a material handler from the day she was injured in February 2002 until the day Dr. Stephanian released her to work without restrictions in November 2002, a period of about nine months. As the Seventh Circuit succinctly stated in a recent case, "Inabiliryto work for a multi-month period removes a person from the class protected by the ADA." Byrne v. Avon Products, Inc., 328 F.3d 379, 381 (7th Cir. 2003). See also Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999) (`The rather common-sense idea is that if one is not able to be at work, one cannot be a qualified individual"). Because Roberts could not work as a material handler for a multi-month period, she cannot establish that she was qualified to perform the essential functions of that position. Consequently, Roberts' ADA claim fails at the summary judgment stage. The Court GRANTS Defendants' Motion for Summary Judgment with regard to Plaintiff's ADA claim.
C. JURISDICTION
In her Amended Complaint, Roberts invokes the Court's federal question jurisdiction and supplemental jurisdiction. Because the Court has dismissed all of Roberts' federal claims, it appears that original jurisdiction is now lacking and the Court may-pursuant to 28 U.S.C. § 1367(c)(3) — properly dismiss Roberts' remaining state law retaliation claim. "In an ordinary case of supplemental jurisdiction, the presumption is in favor of relinquishment when the claim that is within the original jurisdiction of the district court was dismissed before trial." Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995). See also Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993). Roberts may file a brief on or before Friday, May 28, 2004, to SHOW CAUSE why this Court still has jurisdiction over her state law claim. If Roberts fails to file such a brief, the Court will exercise its discretion under 28 U.S.C. § 1367 (c)(3), and dismiss Roberts' state law retaliation claim without prejudice.
IV. CONCLUSION
For the reasons stated herein, the Court GRANTS Defendants' Motionfor Summary Judgment with regard to Plaintiffs FMLA and ADA claims. Due to this disposition of the federal claims, it appears that the Court lacks original jurisdiction over the remaining state law claim. Plaintiff may file a brief on or before Friday, May 28, 2004, to SHOW CAUSE why this Court still has original jurisdiction over her state law claim. If Plaintiff does not file such a brief by that date, the state law claim will be dismissed without prejudice. The pending motions in the case regarding expert reports are MOOT.
IT IS SO ORDERED.