Mullins v. Indiana

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DAVID M. MULLINS, Plaintiff, v. STATE OF INDIANA, MIKE MILLER, DAVID NAUTH, HEATHER WHITAKER, Defendants.

No. 1:20-cv-02900-JPH-TAB

United States District Court, S.D. Indiana, Indianapolis Division

March 28, 2023

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

James Patrick Hanlon United States District Judge

Plaintiff David Mullins, was fired after a month working as a metrologist for the Indiana State Department of Health. He sued the state of Indiana and three of its employees alleging that they fired him because of his disability. See dkt. 63. Defendants have filed a motion for summary judgment. Dkt. [76]. For the reasons below, that motion is GRANTED in part and DENIED in part.

I. Facts and Background

Because Defendants have moved for summary judgment under Rule 56(a) the Court views and recites the evidence "in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009).

In early 2019, Mr. Mullins applied to be a Weights and Measures Metrologist-someone who ensures the accuracy of weights and measurements-with the Indiana State Department of Health ("ISDH"). Dkt. 80-10 at 22-23 (Mullins Dep. at 84-85). He passed a pre-interview test- scoring well enough to qualify for a Department of Commerce metrologist training-and then had an "impressive" interview. Dkt. 80-8 at 15-16 (Miller Dep. at 28-29). ISDH hired Mr. Mullins as a Metrologist in April 2019. Dkt. 76-2.

On Mr. Mullins's third day with ISDH, a supervisor-Defendant Michael Miller-emailed ISDH's HR specialist-Defendant Heather Whitaker-about time that Mr. Mullins had missed during his first three days. Dkt. 80-6; See dkt. 80-8 at 13 (Miller Dep. at 25). Ms. Whitaker and Mr. Miller talked with Mr. Mullins about attendance expectations but did not discipline him. Dkt. 80-6; dkt. 80-9 at 20-21 (Whitaker Dep. at 23-24). In one of the emails, Mr. Miller added a concern about Mr. Mullins's physical ability to work:

[Mr. Mullins] was struggling yesterday while working with [another metrologist] in the labs bending over, kneeling down taking readings, if he has issues performing metrologist task[s] we can't afford to keep him. (Just saying).

Dkt. 80-6. After talking with Mr. Mullins, Ms. Whitaker responded:

As for your observed physical concerns, set your expectations on the physical requirements of the job and expect [Mr. Mullins] to do it. Do not ask him about any health issues. He needs to bring this up himself unless it's just blatantly obvious. If he can't perform his essential functions due to health reasons, he'll need to have his doctor complete an accommodation form with suggestions and we'll see what happens.

Id.

About two weeks later, Mr. Miller counseled Mr. Mullins for falling asleep at work. Dkt. 76-6 at 1. ISDH does not consider counseling to be discipline. Dkt. 80-9 at 12 (Whitaker Dep. at 15). After the counseling, Mr. Mullins changed prescriptions and the issue was resolved. Dkt. 80-10 at 49-50 (Mullins Dep. at 144-45); dkt. 80-8 at 39-40 (Miller Dep. at 61-62).

On May 24, 2019-about a month after Mr. Mullins started-Mr. Miller emailed ISDH's other metrologist, Howard Wickersham, to ask about Mr. Mullins's progress. Dkt. 80-5 at 3-4. Mr. Wickersham replied that on a scale of 1 to 10 ("10 being 'catching on fast' and 1 being 'totally not getting the idea'"), Mr. Mullins was "at a 4." Id. at 3. He added that Mr. Mullins will "need many more demonstrations," could not yet operate alone, and could not write a Microsoft Excel formula. Id. Mr. Miller forwarded that response to Ms. Whitaker, saying that he "would like to terminate [Mr. Mullins's] employment." Id. After Ms. Whitaker responded with questions to "ensure we are fair and consistent," Mr. Miller added that Mr. Mullins "has had difficulty staying awake, he has difficulty kneeling, standing for any period of time, and overall physical exertion tires him." Id. at 1.

A few days later, on May 31, 2019, ISDH fired Mr. Mullins:

Dear David,

Per the discussion had on May 10,2019 about sleeping while at wort and subsequent observation of your work, knowledge, skills and abilities you have not successfully met the expectations of your position. Thus, you are hereby notified that effective today, your employment is terminated in accordance with IC 4-15-2.2-24 which provides "An employee in the unclassified service is an employee it Will and serves- at the pleasure of the employee's appointing authority,..a nd maybe dismissed, demoted, disciplined or terminated for any reason that does not contravene public policy." This action may be appealable in accordance with IC 4-15-2.2-42, A civil service complaint form and eligibility information are available at http://www.in.gov/spd/2399-h tm.

Dkt. 76-7 (termination letter). Mr. Miller did not know why sleeping at work was mentioned in the letter because "that issue had been resolved." Dkt. 80-8 at 80 (Miller Dep. at 129).

Mr. Mullins brought this action in November 2020, initially proceeding pro se. Dkt. 1; dkt. 6 (second amended complaint). After the Court denied Defendants' motion to dismiss, dkt. 46, counsel appeared for Mr. Mullins and filed an amended complaint, dkt. 63 (operative complaint). Mr. Mullins alleges that he was fired because of his disabilities in violation of the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, and the Fourteenth Amendment's Equal Protection Clause. Id. Defendants have moved for summary judgment. Dkt. 76.

II. Applicable Law

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party must inform the court "of the basis for its motion" and specify evidence demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this burden, the nonmoving party must "go beyond the pleadings" and identify "specific facts showing that there is a genuine issue for trial." Id. at 324.

In ruling on a motion for summary judgment, the Court views the evidence "in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party's favor." Zerante, 555 F.3d at 584.

III. Analysis

Mr. Mullins alleges ADA and Rehabilitation Act claims against the State of Indiana and a Fourteenth Amendment equal protection claim, brought through 42 U.S.C. § 1983, against State employees Mike Miller, David Nauth, and Heather Whitaker. Dkt. 63 at 8-10; see Sandefur v. Dart, 979 F.3d 1145, 1156 (7th Cir. 2020) ("Unlike the ADA and other employment discrimination laws, under which the proper defendant is the employer itself, § 1983 focuses primarily on individual liability."). Defendants argue that they are entitled to summary judgment on all claims. See dkt. 76; dkt. 77.

A. ADA and Rehabilitation Act

Both the ADA and Rehabilitation Act prohibit employers from discriminating because of an employee's disability. See A.H. v. Ill. High Sch. Ass'n, 881 F.3d 587, 592 (7th Cir. 2018) (citing 29 U.S.C. § 794(a); 42 U.S.C. § 12132). To succeed on his ADA and Rehabilitation Act claims, Mr. Mullins must show that (1) he was disabled^[1], (2) he "was qualified to perform essential functions [of his job] with or without reasonable accommodation," and (3) disability was the cause of his termination. Scheidler v. Indiana, 914 F.3d 535, 541 (7th Cir. 2019).^[2]The State argues that it's entitled to summary judgment because the undisputed evidence shows that Mr. Mullins was not qualified and was not terminated because of a disability. Dkt. 77 at 9-10.

1. Qualifications

The State contends that Mr. Mullins "lack[ed] the requisite [Microsoft] Excel skills" to "work[ ] independently as a metrologist for the State." Id. It has designated evidence that Excel skills were "critical" for the position and that metrologists had to "be able 'to enter, transcribe, record, store, and maintain information'" in Excel. Dkt. 76-8 at 7-8, 20 (Miller Dep. at 47-48, 65); dkt. 763. Mr. Miller testified that Mr. Mullins struggled in "[s]earching the files, putting in the appropriate data and saving the files." Dkt. 76-8 at 8 (Miller Dep. at 48). The State also argues that Mr. Mullins "conceded that he did not understand how to do some of the Excel data entry." Dkt. 77 at 5.

Looking at all the designated evidence, however, reveals factual questions regarding the specific level of Excel skills, if any, that were required for a newer metrologist, and whether Mr. Mullins's Excel skills during his first month of employment were sufficient to meet any such expectations. Mr. Mullins explained his alleged concession-that he "didn't particularly understand some of the data entry that they were doing at ISDH"-as expressing a concern that ISDH's method wasn't reliable, rather than admitting a lack of Excel skills. Dkt. 80-10 at 8-10 (Mullins Dep. at 31-33) ("It seemed to me . . . that they would enter data [in a way that] they could manipulate the outcome ....How do I know that number that somebody else wrote down is correct?"). Moreover, Excel skills were not mentioned in the job description, See dkt. 76-3, and no one asked about them in Mr. Mullins's interview, See dkt. 80-10 at 27-28 (Mullins Dep. at 89-90). And Mr. Miller described the relevant Excel skills as "copy[ing] and past[ing] data from file to file," dkt. 80-5 at 1, which Mr. Mullins could do and had done "since the '90s," dkt. 80-10 at 8-9 (Mullins Dep. at 3132).

A jury could reasonably find from the designated evidence that Mr Mullins's level of Excel skills matched what was expected for a metrologist during the first month of employment. Or a...