Ex-Schwan’s Man Wins Disability Bias Appeal

(CN) - The 7th Circuit reinstated a disability discrimination lawsuit brought by a former Schwan's man who said the company backdated his firing to the day before he left for the Mayo Clinic to get a diagnosis and treatment for multiple sclerosis.

While managing a route for the home delivery food service, Frank Brunker began to experience shaking in his hands, slurred speech, dizziness, lightheadedness and headaches. The symptoms occurred once or twice a day, making it difficult for him to write, walk, speak and drive.

His doctor told him he might have multiple sclerosis and said he should avoid driving until he could get the dizziness diagnosed.

Bruner told his supervisor, Chuck Ramey, that he wanted to go to the Mayo Clinic for further testing and treatment.

The day before Brunker left for the clinic, his supervisor wrote him up for failing to run a rescheduled route, writing a bad check to a fellow employee, depositing a customer's post-dated check early and breaking the company's dress code.

Brunker was fired when he returned two weeks later, after having been diagnosed with multiple sclerosis. Ramey cited Brunker's "unsatisfactory performance" and said he was "unable to perform essential job functions."

Ramey backdated the firing to the day before Brunker left for the Mayo Clinic, "evidently hoping to avoid the impression that his apparent condition influenced Schwan's decision to terminate him," the ruling states.

Brunker sued for disability discrimination, and the district court granted summary judgment to Schwan's.

The Chicago-based appeals court revived the case, disagreeing with the magistrate judge's assessment that a reasonable juror wouldn't deem Brunker disabled.

"The record contains adequate evidence to support a theory that Schwan's regarded Brunker as being disabled in the major life activities of walking, caring for himself, and speaking," Judge Rovner wrote.

The judge also came down hard on the magistrate judge for allowing Schwan's to limit discovery.

Schwan's had argued, successfully, that its financial information, anti-discrimination training policy, personnel files and other materials weren't relevant, because it was relying solely on Brunker's alleged customer-service failures as its reason for firing him.

The appeals court blasted this argument in a footnote.

"An employer accused of discrimination cannot limit discovery simply by restricting ... its stated reasons for an adverse action," Rovner wrote. "After all, the true reason behind the action is the very heart of the case, and Brunker presented evidence that Schwan's may have asserted reasons for firing him other than the one it relied on during litigation."

The court reversed dismissal, granted Brunker's motions to compel discovery, and vacated the sanctions imposed on him for filing those motions.

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