Jines v. Evans Motors, Inc.

292 F.Supp.2d 1130

Rolland D. JINES, Plaintiff, v. EVANS MOTORS, INC. d/b/a/ Evans Toyota Isuzu Suzuki, Defendant.

No. 1:02CV418.

United States District Court, N.D. Indiana, Fort Wayne Division.

October 29, 2003.

Christopher C Myers, Christopher Myers and Associates, Fort Wayne, IN, Shane C Mulholland, Burt Blee Dixon Sutton and Bloom, Fort Wayne, IN, for Rolland D Jines, Plaintiff.

Lori W Jansen, Mark C Chambers, Haller & Colvin PC, Fort Wayne, IN, for Evans Motors Inc, Defendant.

John F Lyons, Barrett and McNagny, Fort Wayne, IN, Mediator, pro se.

MEMORANDUM OF DECISION AND ORDER

COSBEY, United States Magistrate Judge.

I. INTRODUCTION

The Plaintiff, Rolland D. Jines ("Jines"), is suing Evans Motors, Inc. d/b/a Evans Toyota Isuzu Suzuki ("Evans") because he contends his termination by Evans was in retaliation for exercising his rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. and in violation of his substantive FMLA rights. In response, Evans has also filed a counterclaim seeking to be reimbursed for Jines's share of the medical insurance premiums Evans paid while, according to Evans, Jines was on FMLA leave.

This matter is before the Court¹ on the fully briefed Motions for Summary Judgment filed by Evans² and is supported by the depositions of Jines (Jines Dep. p. ___), Lenny Martin ("Martin"), Evans's parts and service director (Martin Dep. p. ___), Scott Lewis ("Lewis"), Evans's parts manager (Lewis Dep. p. ___), as well as the affidavits of Michelle Sterk ("Sterk"), Evans's office manager (Sterk Aff. ¶ ___), and Martin (Martin Aff. ¶ ___). In addition, Jines also submitted an affidavit (Jines Aff. ¶ ___).

Essentially, this action revolves around the disputed factual question of when Jines was terminated. As the precise termination date involves a genuine issue of material fact which the Court cannot resolve at this stage, each of Evans's motions for summary judgment must be denied.

II. FACTUAL BACKGROUND³

Jines began working for Evans as a parts driver in July 1999. Jines Dep. p. 6. That position involved picking up parts at a depot, bringing those parts back to Evans, unloading them and then delivering them to body shops and car dealers in Fort Wayne and in Northern Indiana and Ohio. Id. at 6-8. Jines contends that he had a partner to help him, especially when heavy lifting was involved.⁴ Id. at 6-7. Thus, Jines contends that the heaviest part he had to lift alone was a Camry hood weighing forty to fifty pounds. Id. at 7.

On September 2, 2002, Jines was thrown from a golf cart, suffering a broken clavicle. Id. at 9. Jines told Martin in person on September 3 that he needed at least two weeks off. Id. at 10. Martin told Jines to "[g]et the shoulder better" and to "check back in" once he received a diagnosis from an orthopedist. Id. At that time, Jines, who is right-handed, was wearing a sling on his left arm. Id. at p. 11. The Court assumes that this was the beginning of Jines's FMLA leave.

On September 13, 2002, Jines saw Dr. Jerry Mackel, an orthopedist. Id. Dr. Mackel prohibited Jines from working for at least six weeks. Id. Furthermore, Jines was instructed to wear a clavicle strap and sling and was not permitted to lift over twenty pounds at all or to lift any amount of weight over his head. Id.

Jines then went into Evans on about September 15, speaking initially to Jim Armstrong ("Armstrong"), an office manager. Id. at 12. Armstrong told Jines that he would "see if maybe there was a position open [for Jines], maybe answering phones, something part time just to do something." Id. Following that conversation, Jines met with Martin and Lewis in Martin's office. Id. At that meeting, Jines informed them that he needed at least six more weeks off. Id. at 15. Martin told Jines that his job was secure and "stable as long as [you are] under doctor's care." Id. at 13. Later that day Martin also informed Jines of his eligibility for disability insurance. Id.

The parties had no further substantive contact until October 24, when Jines called Lewis to check on the veracity of a voice message left for Jines by Scott Lahrman ("Lahrman"), a former parts manager at Evans,⁵ in which Lahrman told Jines that his position had been filled.⁶ Id. at 16. When Jines called Lewis and expressed anger about his position being filled, Lewis stated that he "was tired of losing money" and "had to fill the position." Id. at 17. Jines contends that Lewis told him that he did not need to hold the position open because Jines's accident was not work-related. Id. After a heated discussion, Lewis told Jines that "Your [Jines's] job is done, terminated, end of story."⁷ Id. at 18. After an hour and a half, Jines called Lewis again and asked if he was still terminated, and when Lewis responded affirmatively, Jines said "Then have the termination papers ready and have my stuff boxed up, and I'll be in and get them." Id. at 19.

The next day, October 25, Jines met with Armstrong and Martin. Id. Prior to Martin's arrival, Jines and Armstrong had a discussion about the FMLA, which Armstrong said he had not heard of, so Jines presented Armstrong with some papers concerning the FMLA which he had copied from the internet.⁸ Id. at 20. When Martin entered the room he placed some termination papers on a desk, but Jines refused to sign them because he had not consulted counsel and was unsure the effect the papers would have on his FMLA rights. Id. The three then discussed the FMLA and Martin offered the opinion that Jines's broken shoulder was not a serious health problem, meaning, at least to Martin, that Jines was not eligible for FMLA benefits. Id. According to Jines, Martin also stated that Evans did not need a reason to fire Jines because "Indiana is a right to hire, right to fire state...." Id. at 21.⁹

Jines then opined that he was entitled to a position of equal pay under the FMLA, to which Martin stated that he had a service porter position available but at a lower salary than Jines's driver position. Id. at 21. Armstrong then told Jines that Evans needed to contact its attorneys to find out "if this is all legal" and that Evans would follow the law and get back with him. Id. at 21-22. Jines contends that Evans has not called him since that meeting. Id. at 22. According to Jines, there was no discussion at that October 25 meeting about his medical condition nor how long he would need to be off work.¹⁰ Id.

Dr. Mackel's notes from October 25 state that Jines "is more comfortable but still has tenderness, unable to fully lift the shoulder without slight pain, but has full range of motion." Id. at 27. Dr. Mackel also opined that Jines could do no overhead lifting and could lift no more than twenty pounds on his injured side. Id. Dr. Mackel gave Jines no return to work date at that time because, in Jines's view, he "had no work to go back to." Id. at 29.

Jines filed this action on November 20, 2002, in the Allen Superior Court and later saw Dr. Mackel again on December 13, 2002. On that date, Dr. Mackel restricted Jines to lifting no more than twenty-five pounds and no "lifting waist to shoulder." Id. at 30. Dr. Mackel, however, stated that Jines could return to work without restrictions on January 1, 2003.¹¹ Id. Meanwhile, Evans removed this case to this Court on December 19, 2002. See Docket Entry 2.

On January 3, 2003, while this litigation was pending, Evans's counsel sent Jines's counsel a letter stating that "Evans Motors has had a position for Mr. Jines that is substantially similar to his old position, but does not require lifting. It is a service porter position at the same pay that Mr. Jines received before." Response to Motion for Summary Judgment, Ex. E, p. 1. (emphasis added). This assertion is at odds with what Martin told Jines on October 25, 2002; that a service porter position was open, but at a lower salary than Jines's old driver position. In any event, the letter further provided that Evans would terminate Jines if he did not contact Evans by January 13, 2003. Id.

Jines's next contact with Evans came on January 10, 2003, via a letter from Sterk which stated that Jines's employment with Evans was being terminated as of that date "due to your [Jines's] failure to return to work at the expiration of your FMLA leave of absence. We [Evans] deem your refusal to return to work as a voluntary quit." Memorandum In Support of Summary Judgment, Ex. I. Sterk's letter also told Jines that in addition to being paid for his accrued vacation pay, "in conjunction with officially terminating your employment we are extending to you an unconditional offer of reinstatement to the position of service porter." Id.

On January 21, 2003, Jines accepted the offer and reported to work at Evans as a porter. Sterk Aff. ¶ 6. However, Jines quit after working only one day. Id. Jines's resignation letter states that he quit because he was not utilized as a service porter, as he had expected. See Plaintiff's Response, Ex. E, p. 4.

Evans filed its motion for summary judgment on September 8, 2003. Jines filed his response on October 8, 2003, and Evans filed its reply on October 23, 2003.

From the outset, it is obvious that the parties have some large factual disagreements, mainly revolving around when Jines was terminated. For example, Jines maintains he was actually terminated three times: by Lewis over the telephone on October 24, in person by Martin and Armstrong on October 25, and via Sterk's January 10 letter. On the other hand, Evans maintains that Jines was not actually terminated until Sterk sent the January 10 letter. The difference in the dates is significant because if Jines was fired on either of the first two dates it means that he was terminated while still on FMLA leave. On the other hand, if Jines was not actually terminated until January 10, 2003, then he was fired after his FMLA leave had expired, and simply due to absenteeism.

IV. STANDARD OF REVIEW

Summary judgment may be granted...