ROSS v. FEDEX FREIGHT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JASON ROSS, )

)

Plaintiff, )

)

v. ) No. 1:20-cv-00642-JMS-MJD

)

FEDEX FREIGHT, )

)

Defendant. )

ORDER

Plaintiff Jason Ross, who has Bell's palsy and other health issues, was employed at

Defendant FedEx Freight ("FedEx") as a driver. In 2014, Mr. Ross was prescribed hydrocodone-

acetaminophen to alleviate pain following a dental procedure. On April 1, 2019, Mr. Ross was

selected for drug testing and the test confirmed the presence of opioids. Mr. Ross claimed that he

had taken hydrocodone-acetaminophen pursuant to the prescription he received in 2014, but FedEx

ultimately terminated Mr. Ross's employment based on the positive drug test and Mr. Ross's failure

to provide proper documentation for the prescription. Mr. Ross initiated this action on February

26, 2020, asserting claims against FedEx for: (1) discrimination under the Americans With

Disabilities Act, 42 U.S.C. § 12181, et seq. ("ADA"); (2) retaliation under the ADA; (3) failure to

accommodate under the ADA; (4) confidentiality violations under the ADA; (5) intentional

infliction of emotional distress; and (6) violations of the Family and Medical Leave Act, 29 U.S.C.

§ 2601, et seq. ("FMLA"). [Filing No. 1 at 7-11.] FedEx has moved for summary judgment on

all of Mr. Ross's claims, [Filing No. 43], and its motion is now ripe for the Court's consideration.

1

I.

STANDARD OF REVIEW

A motion for summary judgment asks the Court to find that a trial is unnecessary because

there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a). On summary judgment, a party must show the Court

what evidence it has that would convince a trier of fact to accept its version of the events. Johnson

v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary

judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v.

Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable

to the non-moving party and draws all reasonable inferences in that party's favor. Darst v.

Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make

credibility determinations on summary judgment because those tasks are left to the fact-finder.

O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).

Each fact asserted in support of or in opposition to a motion for summary judgment must

be supported by "a citation to a discovery response, a deposition, an affidavit, or other admissible

evidence." S.D. Ind. L.R. 56-1(e). And each "citation must refer to a page or paragraph number

or otherwise similarly specify where the relevant information can be found in the supporting

evidence." Id. The Court need only consider the cited materials and need not "scour the record"

for evidence that is potentially relevant. Grant v. Trustees of Ind. Univ., 870 F.3d 562, 572-73

(7th Cir. 2017) (quotations omitted); see also Fed. R. Civ. P. 56(c)(3); S.D. Ind. L.R. 56-1(h).

Where a party fails to properly support an assertion of fact or fails to properly address another

party's assertion of fact, the Court may consider the fact undisputed for purposes of the summary

judgment motion. Fed. R. Civ. P. 56(e)(2).

2

In deciding a motion for summary judgment, the Court need only consider disputed facts

that are material to the decision. A disputed fact is material if it might affect the outcome of the

suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In

other words, while there may be facts that are in dispute, summary judgment is appropriate if those

facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.

2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

II.

STATEMENT OF FACTS

At the outset, the Court notes that neither party has complied with the Court's Practices and

Procedures. [Filing No. 4.] Specifically, The Court's Practices and Procedures provide that "[i]n

a supporting brief, [a party must] cite to the docket number, the attachment number (if any), and

the applicable .pdf page as it appears on the docket information located at the top of the filed

document," and provides an example of the proper citation form. [Filing No. 6 at 4.] Neither party

has used the proper citation form in their briefs. FedEx cites generally to lengthy exhibits, without

providing the docket number of the exhibit or the page number upon which the referenced

information appears. For example, in its Statement of Material Facts Not in Dispute, FedEx states

that "[Mr.] Ross operated a CMV in interstate commerce traveling to numerous states," and cites

to "Exhibit A." This citation is unhelpful as it does not provide the Court with the docket number

where Exhibit A appears – it is Filing No. 43-1 – nor does it provide the Court with the page

number within the 13-page document where the referenced information can be located. Mr. Ross's

citation form is slightly better, as he provides the relevant page or paragraph number of the

document to which he cites, but not the docket number of the referenced exhibit nor the applicable

.pdf page as it appears on the PACER docket information located at the top of the filed exhibit.

3

The parties' failure to follow the Court's citation rules as clearly set forth in its Practices

and Procedures, [see Filing No. 4 at 15-17 (Appendix A – "Procedure for Filing Exhibits and

Proper Citation Form When Filing a Motion or Brief…")], has made the Court's review of the

pending motion unnecessarily cumbersome. Moreover, as the Practices and Procedures warn, the

parties' failure to comply with the Court's filing and citation procedures could have "result[ed] in

[the motion] being stricken or arguments being waived." [Filing No. 4 at 17.] The Court has done

its best to locate the information relied upon by both parties in the record, but cautions them that

full compliance with the Court's Practices and Procedures is required and expected in this and

other litigation going forward.

That said, the following factual background is set forth pursuant to the standard detailed

above. The facts stated are not necessarily objectively true, but as the summary judgment standard

requires, the undisputed facts and the disputed evidence are presented in the light most favorable

to "the party against whom the motion under consideration is made." Premcor USA, Inc. v. Am.

Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

A. Mr. Ross's Employment at FedEx

Mr. Ross was employed at FedEx as a Road Driver operating a Commercial Motor Vehicle

("CMV"), and was subject to Department of Transportation ("DOT") regulations. [Filing No. 58-

1 at 1.] Mr. Ross traveled to many different states as a FedEx CMV driver. [Filing No. 43-1 at

5.]

B. FedEx's Drug Policy

FedEx's Drug and Alcohol Policy provides as follows:

OVERVIEW

[FedEx] is committed to an alcohol and drug-free workplace. [FedEx] complies

with the [DOT] and Federal Motor Carrier Safety Administration (FMCSA)

4

regulations for drug and alcohol testing, as well as other applicable federal and state

laws.

* * *

POLICY

As a condition of employment, an employee or applicant is required to accept and

abide by this policy. [FedEx] reserves the right to test employees for drug and

alcohol violations at any time. Testing will comply with applicable federal laws,

regulations, and applicable state statutes and regulations.

[FedEx] strictly prohibits all of the following:

• The use or consumption of illegal drugs while on or off duty….

• The abuse or misuse of legal (prescription or over the counter) drugs while on

or off duty.

Note: Any employee who is taking a drug identified as having the potential to

adversely affect the employee's ability to safely perform certain job functions

must notify leadership before performing such job functions.

• The unlawful manufacture, distribution, dispensation, possession, or use of

illegal drugs.

• The use, possession of, or being under the influence of alcohol or illegal drugs

while on-duty, including during meal periods and breaks, or while on company

property….

• The use, possession of, or being under the influence of alcohol or illegal drugs

while operating any company vehicle, including a company car, company truck,

or company van.

* * *

[A]ll employees are subject to reasonable suspicion testing. DOT regulated

employees are also subject to random and post-accident testing….

After being instructed to take a drug test, an employee who admits to the use or

consumption of illegal drugs and/or abuse of legal (prescription or over the counter)

drugs must be immediately removed from performance of any safety-sensitive

functions*. After such an admission, [FedEx] does not require the employee to

complete the test; however, Safety must be notified immediately.

5

*Safety-sensitive functions include:

(1) All time waiting to be dispatched, unless the "driver" has been relieved from

duty by [FedEx];

(2) All time inspecting, servicing, or conditioning a "commercial motor vehicle"

for [FedEx];

(3) All time spent at the driving controls of a "commercial motor vehicle" in

operation;

(4) All time, other than driving time, in or upon any "commercial motor vehicle"

except time spent resting in a sleeper berth;

(5) All time loading or unloading a vehicle, supervising, or assisting in the loading

or unloading, attending a vehicle being loaded or unloaded, remaining in readiness

to "operate" the vehicle, or in giving or receiving receipts for shipments loaded or

unloaded; and

(6) All time repairing, obtaining assistance, or remaining in attendance upon a

disabled vehicle.

The company will maintain strict confidentiality for employees involved in the

drug/alcohol testing program.

* * *

TESTING – DOT

In addition to company policy, DOT regulated employees are subject to the drug

and alcohol testing requirements as established by the DOT and as outlined below:

• Pre-employment

• Random

• Post-Accident

• Reasonable Suspicion

• Return-to-Duty

• Follow-up

* * *

6

Prohibited Conduct for DOT-Regulated Employees

While still complying with all FMCSA regulations and all applicable laws, [FedEx]

may utilize, at its discretion, any recognized investigative technique for the

detection of illegal or prohibited drug/alcohol use or abuse. As a condition of

continued employment, all employees must cooperate in any investigations.

The conduct described below represents prohibited/disqualifying acts set forth by

[FedEx] though not necessarily prohibited by FMSCA regulations. The following

are examples of conduct that immediately disqualify a driver:

1. Violation of any federal or state motor carrier regulation involving the use

or possession of alcohol or drugs.

2. Illegal use or possession of one or more of the following substances:

marijuana, cocaine, opioids, amphetamines, phencyclidine (PCP). Illegal

use is determined by a verified positive drug test.

3. Engaging in prohibited conduct as described in the section What Conduct is

Prohibited in the [FedEx] "Drug and Alcohol Policy: Program

Guidelines."

* * *

DOT RANDOM DRUG AND ALCOHOL TESTING AND

COMPENSATION

All DOT regulated employees are subject to random drug and alcohol testing.

Random tests will be conducted in accordance with DOT regulations….

1. Employees cannot be forewarned of the test, as the test must be

administered immediately (normally within 2 hours).

Example: Employee cannot be told today that he/she will be tested tomorrow.

Example: Employee cannot be told this morning that he/she will be tested this

afternoon.

2. Any attempt on the employee's part to delay or postpone the test will be

considered a refusal to be tested.

[Filing No. 43-11 at 1-5 (emphasis in original).]

7

C. Mr. Ross's Health Issues and Medications

In 2012, Mr. Ross was diagnosed with Bell's palsy, related functional disability in his jaw,

severe ongoing pain, and hearing issues. [Filing No. 58-1 at 1.] Mr. Ross was prescribed steroids

to address the Bell's palsy and medication to treat migraines caused by Bell's palsy. [Filing No.

58-2 at 44-48.]

In 2014, Mr. Bell had several teeth extracted by Dr. Li Chee, and was prescribed

hydrocodone-acetaminophen to manage his pain as needed. [Filing No. 58-1 at 1.] Following the

dental procedure, Mr. Ross informed his manager at FedEx, Jeff Curp, that he had been prescribed

hydrocodone-acetaminophen for pain management, and also that he had been prescribed

medication for migraine headaches. [Filing No. 58-1 at 2.] Mr. Curp recorded the prescription

numbers and the names of the medications, and told Mr. Ross that he could have a day off on days

when he needed to take the pain medication. [Filing No. 58-1 at 2.]

Mr. Ross's hydrocodone-acetaminophen prescription contained twenty pills, and he took

several of the pills following the teeth extraction but did not take all twenty and kept the remaining

pills to manage pain if needed and as instructed by Dr. Chee. [Filing No. 58-1 at 1.] Mr. Ross re-

filled the pain medication prescription on January 4, 2015. [Filing No. 61-1 at 2.]1 When his

doctors prescribed the same medication on occasions between 2014 and 2019, Mr. Ross informed

1 Mr. Ross states in his Declaration that he "never fulfilled any additional prescriptions for

hydrocodone-[a]cetaminophen, even though [he] was prescribed the same medicine for pain on

several occasions between 2014 and 2019 following additional dental procedures and teeth

extractions." [Filing No. 58-1 at 1.] But records from his pharmacy indicate that he filled a

prescription for hydrocodone-acetaminophen on January 4, 2015. [Filing No. 61-1 at 2.] While

the Court is required to construe all disputed facts in favor of Mr. Ross as the non-movant, it is not

required to consider facts set forth by Mr. Ross in his Affidavit which are plainly contradicted by

uncontroverted documentary evidence. See Walkers v. Peters, 863 F. Supp. 671, 672 (N.D. Ill.

1994) (Court is not required to "credit testimony that, because it has been irrefutably contradicted

by documentary evidence, is inherently incredible").

8

them that he would just take the remaining pain medication from his original 2014 prescription if

needed. [Filing No. 58-1 at 1-2.]

D. Mr. Ross's DOT-Mandated Examinations and Qualifications

As a CMV driver, DOT regulations required that Mr. Ross undergo Commercial Driver

Fitness Evaluations and complete Medical Examination Report Forms (the "DOT Forms") on a

regular basis. [Filing No. 43-2; Filing No. 58-1 at 2.] The DOT Form requires that the driver and

the examining physician discuss any medications that could present a hazard while driving,

including prescriptions and over-the-counter medications, and the driver is required to disclose on

the DOT Form whether he or she is taking any such medications. [Filing No. 43-2.] Mr. Ross did

not disclose the use of any prescription medications on his DOT Forms from 2016 to 2018. [Filing

No. 43-4.] Mr. Ross's last Commercial Driver Fitness Evaluation was on January 18, 2019, and

he did not disclose the use of any prescription medications on his DOT Form. [Filing No. 43-3.]

E. Random Drug Testing for FedEx CMV Drivers

The Federal Motor Carrier Safety Administration requires FedEx to maintain a random

drug testing program. [Filing No. 43-6 at 1.] FedEx contracts with a third-party vendor, DSI

Medical ("DSI"), to manage its random drug testing program. [Filing No. 43-6 at 1.] FedEx

provides a list of all qualified drivers to DSI each month, and DSI randomly selects approximately

1,000 drivers to be tested that month. [Filing No. 43-6 at 1.] Federal regulations require FedEx

to randomly test 50% of driver-qualified employees each year. [Filing No. 43-6 at 1.] DSI notifies

FedEx by email regarding which employees were randomly selected for a drug test. [Filing No.

43-6 at 2.] No one at the FedEx Service Centers knows who will be selected for a random drug

test, and FedEx cannot and does not add employees to the list of those to be randomly tested.

[Filing No. 43-6 at 2.] Once FedEx receives the list of individuals to be randomly tested from

9

DSI, an email is sent out to the managers notifying them who has been selected for testing that

month. [Filing No. 43-6 at 2.] It is the manager's responsibility to send employees who have been

selected to the clinic for testing. [Filing No. 43-6 at 2.] Because of the random nature of the drug

testing, some drivers may be selected multiple times a year for testing and others may go years

without being tested. [Filing No. 43-6 at 2.]

F. Mr. Ross's Use of His 2014 Prescription in 2015 and 2018

Mr. Ross informed his FedEx managers of his occasional use of prescription pain

medication on at least three occasions. [Filing No. 58-1 at 2.] On May 23, 2015, Mr. Ross told

his manager at the time, Adam Mason, that he needed to take a prescription pain pill but, because

it was a Saturday, he did not need to take a day off. [Filing No. 58-1 at 2.] Mr. Mason asked Mr.

Ross for the prescription, and Mr. Ross took a photo of the prescription bottle and texted it to Mr.

Mason. [Filing No. 58-1 at 3.] The photo was of "[Mr. Ross's] prescription bottle containing [his]

prescribed pain medication and was the same pain medication [he] was prescribed by Dr. Chee in

2014." [Filing No. 58-1 at 3; Filing No. 58-1 at 7-8.] Mr. Ross also reported his occasional use

of the pain medication prescribed in 2014 to his then-FedEx manager, Terrell Toles, on September

4, 2018. [Filing No. 58-1 at 3.] Mr. Ross attached a photo of the prescription bottle to a text

message to Mr. Toles, and the photo that he took on September 4, 2018 was of "[his] prescription

bottle containing [his] prescribed pain medication and was the same pain medication [he] was

prescribed by Dr. Chee in 2014." [Filing No. 58-1 at 3; Filing No. 58-1 at 9-10.]

G. Mr. Ross's FMLA Leave Requests

Mr. Ross requested FMLA leave several times while a FedEx employee. [Filing No. 43-

12 at 1.] Specifically, he applied for and received intermittent FMLA leave within the periods of

June 26, 2014 to June 24, 2015; April 7, 2016 to April 7, 2017; and July 27, 2017 to July 28, 2018.

10

[Filing No. 43-12 at 1.] The FMLA leave was for treatment visits for migraines, sleep apnea, and

Bell's palsy. [Filing No. 43-12 at 1-2; Filing No. 61-2] None of the documentation that Mr. Ross

submitted for the intermittent FMLA leave during those time periods mentioned needing surgery

or needing treatment for dental issues or hearing loss. [Filing No. 43-12 at 2; Filing No. 61-2.]

On August 13, 2018, Mr. Ross's physician, Dr. Brendan Sweeny, submitted FMLA

paperwork to FedEx to renew Mr. Ross's existing FMLA leave for treatment of migraine

headaches, sleep apnea, and Bell's palsy. [Filing No. 58-1 at 2; Filing No. 58-5.] The paperwork

submitted on August 13, 2018 did not reference needing treatment for dental issues or hearing loss,

nor did it reference needing surgery. [Filing No. 58-5.] During the following months, Mr. Ross

complained to Human Resources and various FedEx managers that his FMLA request was not

being processed. [Filing No. 58-1 at 2.] When he explained the situation to FedEx manager Curt

Graft, Mr. Graft contacted Tamara McElroy, a FedEx Human Resources representative, who then

told Mr. Ross that some required documentation was missing. [Filing No. 58-1 at 2.] Dr. Sweeny

completed the missing documentation and again faxed the FMLA request to FedEx on March 18,

2019. [Filing No. 58-1 at 2.]

That same day, Debra Rhoades, a Specialist – Leave of Absence at FedEx, received the

completed FMLA leave request from Dr. Sweeny. [Filing No. 43-12.] The documentation did not

mention any need for surgery, nor did it mention needing treatment for dental issues or hearing

loss. [Filing No. 43-12 at 2; Filing No. 61-2 at 18-28.] Ms. Rhoades requested additional

information from Mr. Ross, including the dates for which Mr. Ross was requesting leave and the

type of leave he was requesting. [Filing No. 43-12 at 2.] Ms. Rhoades did not receive the

additional information that she had requested before Mr. Ross was eventually terminated. [Filing

11

No. 43-12 at 2.] FedEx did not deny any of Mr. Ross's FMLA leave requests. [Filing No. 43-12

at 2.]

Neither Mr. Ross's Bell's palsy nor his teeth issues required any specific accommodation

at his job with FedEx, and Mr. Ross did not request any accommodations for those conditions.

[Filing No. 43-1 at 10-11.]

H. Mr. Ross's 2019 Use of the 2014 Prescription and His Drug Test

Mr. Ross took the pain medication prescribed in 2014 for the last time on Saturday, March

30, 2019. [Filing No. 58-1 at 3.] When he woke up that morning, his filling from his 2014 dental

work had fallen out and he was in pain. [Filing No. 58-1 at 3.] He took his last prescribed pain

pill around 6:30 a.m. and slept much of the day. [Filing No. 58-1 at 3.] The following morning,

he contacted Mr. Toles by text message and asked for a day of leave under the FMLA so that he

could visit his dentist to address the lost filling and resulting pain. [Filing No. 58-1 at 3.] When

he did not receive a response, Mr. Ross called Mr. Toles and explained that he needed a day off to

address his medical issues and informed him that he had taken his last pain pill and needed to visit

his doctor. [Filing No. 58-1 at 3.] Mr. Toles denied Mr. Ross's request for a day off. [Filing No.

58-1 at 3.] Mr. Ross did not have any remaining personal time, because FedEx had not approved

his FMLA leave request. [Filing No. 58-1 at 3.] Mr. Ross then sent Mr. Toles a text message with

a picture of the prescription bottle. [Filing No. 58-1 at 3.] The prescription bottle in the picture

was different than the prescription bottle he sent a picture of in May 2015. [Compare Filing No.

58-1 at 7 (directions on bottle state "Take 1 Tablet by mouth…") and Filing No. 58-1 at 11

(directions on bottle state "Take one to two…").]2 Because Mr. Ross could not take a day off

2 The Court is unable to read the label on the bottle in the pictures Mr. Ross sent in 2018, [see

Filing No. 58-1 at 9-10], so cannot determine whether that bottle was the same as the bottle

depicted in the 2015 picture, the 2019 picture, or neither picture.

12

without facing discipline, he reported to work and completed his trip to West Virginia and back to

Indiana. [Filing No. 58-1 at 3.] His pain was so bad that he was crying. [Filing No. 58-1 at 3.]

While Mr. Ross was driving on April 1, 2019 to complete his trip, the FedEx dispatcher

called him several times to ask where he was and instructed him to report to dispatch when he

returned to Indiana. [Filing No. 58-1 at 3.] Mr. Ross did so, and was informed that he needed to

take a drug test. [Filing No. 58-1 at 4.] This was the first and only time that Mr. Ross was selected

for a drug test in all of his years working at FedEx. [Filing No. 58-1 at 4.] DSI performed the

drug test, and Mr. Ross advised the woman at the testing site that he was in a lot of pain and had

taken a pain pill on March 30, 2019. [Fling No. 43-6 at 2; Filing No. 58-1 at 4.] The woman

advised Mr. Ross that if the pain medication was detected, it would not be a problem and he would

just need to provide the prescription to the Medical Review Officer. [Filing No. 58-1 at 4.] The

result – positive for "Opioids – Hydromorphone" – was certified by Dr. Phillip Lopez of DSI.

[Filing No. 43-6 at 2.] Dr. Lopez then contacted Mr. Ross and informed him of the positive result,

Mr. Ross advised Dr. Lopez that he had taken a pain pill on March 30, and Dr. Lopez requested

the prescription. [Filing No. 58-1 at 4.] Additionally, Brittany Starkey, a Specialist with Safety-

Compliance at FedEx, sent out an email advising that Mr. Ross was disqualified from driving any

FedEx Freight CMVs and was not permitted to work in any safety-sensitive function due to the

positive drug test result. [Filing No. 43-6 at 2.]

On April 9, 2019, Mr. Ross faxed the 2014 prescription that he had received from Dr. Chee

to Dr. Lopez. [Filing No. 58-1 at 4.] Mr. Ross received a voicemail the next day, on April 10,

from the FedEx Center Manager, stating "[w]e have a determination…on the positive DOT random

drug test and determination is a termination." [Filing No. 58-1 at 4; Filing No. 58-1 at 13.]

13

On April 12, 2019, Dr. Lopez changed the result of Mr. Ross's random drug test to

"negative" because Mr. Ross had produced the 2014 prescription. [Filing No. 43-6 at 2.] However,

Dr. Lopez also advised Mr. Ross that he needed to produce a Safety Concern Letter from the

prescribing physician. [Filing No. 43-6 at 2.] Also on April 12, Ms. Starkey sent a letter to Mr.

Ross stating:

Our Medical Review Officer has requested we secure a safety concern letter from

your prescribing physician due to medication(s) that the DOT random drug test

revealed.

Please be advised that you have shared information regarding potential safety

sensitive issues concerning l[e]gitimate medical use of prescribing prescription

medication.

In accordance with DOT policy, we are informing you of safety concerns that

should entail a review and confirmation by the prescribing physician to determine

whether there is a risk of your operating in a safety sensitive function and

performing the essential job duties of the position you hold, which include

operating as a commercial motor vehicle operator (CMV). It is incumbent upon

your prescribing physician to be fully aware of the safety sensitive requirements

of your position and the nature of the work, responsibilities, and

equipment/machinery you operate.

Accordingly, you must have your prescribing physician provide in writing on

his/her letterhead that the prescribing mediation:

• Is prescribed for you;

• Prescribed with the physician's full knowledge of the safety sensitive duties

of the work, responsibilities, and equipment/machinery you operate;

• Prescribed in dosage amounts and in a regimen consistent with safe

performance of your job responsibilities; and

• Confirm that the prescription and dosage would not pose a safety risk and

that some method of monitoring will occur during the duration of this

treatment.

This letter will confirm the verbal notification and will detail your responsibilities

in securing the necessary documentation to allow you to continue to work in a

safety sensitive function.

[Filing No. 43-10 at 1 (emphasis in original).]

14

On April 12, 2019, Mr. Ross contacted Dr. Sweeny's office, and an entry in his medical

records for that day states:

[Mr. Ross] states he had a tooth ache and decided to take some old norco prescribed

by Dr. Sweeny about 3-4 years ago.

[Mr. Ross's] employer happened to request a random drug screen and the norco

showed up. He was fired and is now fighting the termination because he said it was

prescribed by his physician.

He is asking for documentation…regarding this.

[Filing No. 43-8 at 4.]

Mr. Ross's medical records from Dr. Sweeny's office for April 15, 2019 state:

Received a letter from Brittany Starkey from FedEx Fr[e]ight Safety asking for a

letter regarding safety concerns regarding opiates. I called and spoke with Brittany

and asked her what exactly she is looking for. She stated that patient had a DOT

physical and it showed opiates (percocet or hydrocodone) and patient said that Dr.

Sweeny prescribed it for him. I let her know that the last time it was prescribed

was in 2014, and that Dr. Sweeny will not write a letter for a narcotic that was given

4 years ago. She agreed.

Pt called back and I informed him that [B]randi called to see what medication they

were needing the letter for. The lady from his work told us it was for hydrocodone

and I explained to him that we can not write a letter for that since it was last

prescribed in 2014. He said that he told them it was from 3 years ago. I again

explained that we could no[t] write a letter on a script that old. Patient voice

understanding.

[Filing No. 43-8 at 3.]

Neither Ms. Starkey nor anyone at FedEx ever received a Safety Concern Letter from Dr.

Chee, the prescribing physician for the 2014 medication. [Filing No. 43-6 at 3.] Mr. Ross

attempted to get a Safety Concern Letter from Dr. Chee, but he had retired and Mr. Ross was

unable to find another doctor to provide the letter. [Filing No. 43-1 at 12-13.] Mr. Ross asked

FedEx if he could visit Dr. Lopez for an evaluation and safety letter, but FedEx did not allow him

to do so. [Filing No. 58-1 at 4.] Mr. Ross, however, was informed by "a representative from

15

FedEx HQ" that he would receive a letter for his signature that would allow him to return to his

job. [Filing No. 58-1 at 4.] When Mr. Ross called FedEx Human Resources in Indianapolis to

check on the letter, he was told by Ms. McElroy "Stop bothering my supervisors. You will never

get your f***ing job back." [Filing No. 58-1 at 4.]

I. The Lawsuit

Mr. Ross initiated this action on February 26, 2020, and alleges claims for: (1)

discrimination under the ADA; (2) retaliation under the ADA; (3) failure to accommodate under

the ADA; (4) confidentiality violations under the ADA; (5) intentional infliction of emotional

distress; and (6) violation of the FMLA. [Filing No. 1 at 7-11.] FedEx has moved for summary

judgment on all of Mr. Ross's claims. [Filing No. 43.]

III.

DISCUSSION

A. ADA Discrimination Claims

The ADA prohibits an employer from discriminating "against a qualified individual on the

basis of disability 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." 42 U.S.C. § 12112(a). "The ADA then defines 'discriminate against a qualified

individual on the basis of disability' to include disparate treatment and failure to accommodate:

'not making reasonable accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability who is an applicant or employee.'" Scheidler v.

Indiana, 914 F.3d 535, 541 (7th Cir. 2019) (emphasis omitted) (quoting 42 U.S.C. §

12112(b)(5)(A)). Mr. Ross asserts both disparate treatment and failure to accommodate claims

under the ADA, and the Court addresses each claim in turn.

16

1. Disparate Treatment

In support of its Motion for Summary Judgment, FedEx argues that even if Mr. Ross is

considered disabled, he cannot set forth a prima facie case of ADA discrimination because he was

not qualified and did not meet FedEx's legitimate employment expectations since he was not able

to legally operate a CMV with a positive drug test. [Filing No. 42 at 9-10.] It asserts that

"[n]othing in the ADA purports to change [FedEx's] obligation to comply with DOT

requirements," and also contends that Mr. Ross was not meeting FedEx's legitimate expectations

because he violated FedEx's policy on the use of drugs. [Filing No. 42 at 11.] FedEx argues that

it had a legitimate, non-discriminatory reason for drug testing Mr. Ross and terminating him –

namely, that DOT regulations required drug tests and that FedEx policy required his termination

once he tested positive and failed to provide a Safety Concern Letter. [Filing No. 42 at 12-13.]

FedEx also argues that the drug test was not an adverse employment action in the first place, and

that Mr. Ross has no evidence to support his allegation that the test was not random. [Filing No.

42 at 12-13.] FedEx asserts that Mr. Ross has not provided any evidence that FedEx treated

similarly situated, non-disabled employees more favorably, and has not shown that FedEx's stated

reason for terminating him – that he tested positive for opioids and was unable to provide a Safety

Concern Letter – was a pretext for discrimination under the ADA. [Filing No. 42 at 13-14.]

In his response, Mr. Ross argues that the premise of FedEx's Motion for Summary

Judgment is that Mr. Ross's 2014 prescription was no longer valid and that he was disqualified to

drive a CMV after his drug test. [Filing No. 58 at 14.] He argues that his 2014 prescription was

valid as of April 1, 2019, that he disclosed his use of the medication to doctors, medical review

officers, and FedEx on multiple occasions, and that Dr. Lopez accepted the prescription as valid.

[Filing No. 58 at 14.] Mr. Ross also contends that he was not disqualified to drive a CMV under

17

DOT regulations because Dr. Lopez eventually changed his test result to negative. [Filing No. 58

at 14.] He argues that "[t]he fact that [he] was not able to provide a safety letter is the fault of

FedEx, not [Mr.] Ross." [Filing No. 58 at 15.] Mr. Ross contends that he has set forth a prima

facie case of ADA discrimination because FedEx was aware of his disability, and he was meeting

FedEx's expectations because he had been medically cleared to drive a CMV less than three months

before his termination. [Filing No. 58 at 19-21.]

In its reply, FedEx argues that Mr. Ross was not meeting its legitimate expectations

because he could not legally operate a CMV with a positive drug test and he never produced a

Safety Concern Letter. [Filing No. 65 at 4-6.] It also asserts that its drug testing process "is entirely

randomized by a non-[FedEx] entity," and Mr. Ross "did not and cannot produce evidence to

suggest otherwise." [Filing No. 65 at 7.] FedEx reiterates it arguments that Mr. Ross has not

pointed to similarly situated, non-disabled employees who were treated more favorably, and that

he has not provided any evidence indicating that FedEx's reasons for terminating him were

pretextual. [Filing No. 65 at 7-8.]

A claim for disparate treatment under the ADA "requires proof that: (1) the plaintiff was

disabled; (2) the plaintiff was otherwise qualified to perform essential functions with or without

reasonable accommodation; and (3) disability was the 'but for' cause of the adverse employment

action." Castetter v. Dolgencorp, LLC, 953 F.3d 994, 996 (7th Cir. 2020) (citing Scheidler v.

Indiana, 914 F.3d 535, 541 (7th Cir. 2019)). A plaintiff asserting a discrimination claim under the

ADA may proceed under the approach outlined by the Seventh Circuit Court of Appeals in Ortiz

v. Werner Enters., Inc., 834 F.3d 760, 764-66 (7th Cir. 2016), where the question is "'whether the

evidence [considered as a whole] would permit a reasonable factfinder to conclude'" that Mr. Ross

was terminated due to his disability. Castetter, 953 F.3d at 996 (quoting Ortiz, 834 F.3d at 765).

18

Ortiz dispensed with the old "direct- and indirect-framework" as it relates to the "proposition that

evidence must be sorted into different piles, labeled 'direct' and 'indirect.'" 834 F.3d at 766. To

show that discrimination was the "but for" cause of an adverse employment action, a plaintiff can

point to direct evidence, such as an admission, or to circumstantial evidence, which includes: "(1)

suspicious timing; (2) ambiguous statements or behavior towards other employees in the protected

group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the

protected group systematically receive[d] better treatment; and (4) evidence that the employer

offered a pretextual reason for an adverse employment action." Dickerson v. Bd. of Trustees of

Comm. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011).

Additionally, the Seventh Circuit has not entirely done away with separate tests or methods

to analyze discrimination cases, and it has stated that "the well-known and oft-used McDonnell

Douglas framework for evaluating discrimination remains an efficient way to organize, present,

and assess evidence in discrimination cases." Johnson v. Advocate Health & Hosps. Corp., 892

F.3d 887, 894 (7th Cir. 2018); see also McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360,

368 (7th Cir. 2019). Under the McDonnell Douglas framework, a plaintiff must show that "(1) he

is disabled under the ADA; (2) he was meeting his employer's legitimate employment

expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees

without a disability were treated more favorably." Dickerson, 657 F.3d at 601. "Once a plaintiff

has established a prima facie case, the defendant must identify a legitimate non-discriminatory

reason for its employment decision. If the defendant satisfies this requirement, the plaintiff must

then prove by a preponderance of the evidence that the defendant's reasons are pretextual." Id.

(citation omitted).

19

In order to show pretext, "[a] plaintiff must point to evidence tending to prove that the

employer's proffered reasons are factually baseless, were not the actual motivation for the

discharge in question, or were insufficient to motivate the termination." Tibbs v. Admin. Office of

the Ill. Courts, 860 F.3d 502, 506 (7th Cir. 2017) (internal quotations and citations omitted).

"Merely disagreeing with an employer's reasons does not meet this standard." Id.

At the outset, the Court finds that Mr. Ross cannot prove his claim under the McDonnell

Douglas framework because he has not even attempted to set forth the last element of a prima facie

case of disparate treatment – that FedEx treated similarly situated employees without a disability

more favorably. Mr. Ross does not point to FedEx's treatment of any other employees, and does

not address this element at all in his response brief. This leaves the Court to determine whether

Mr. Ross has presented any evidence from which a reasonable factfinder could conclude that

discrimination occurred.

In support of his claim, Mr. Ross focuses on his position that his 2014 prescription was still

valid in 2019, that his drug test was not random, that he was not disqualified from driving a CMV,

that Dr. Lopez changed his drug test result to negative, and that FedEx was at fault for not helping

him to obtain a Safety Concern Letter from Dr. Lopez. But Mr. Ross's position is flawed for

several reasons.

First and foremost, the proper lens through which to view Mr. Ross's disparate treatment

claim is FedEx's stated reason for terminating his employment: that Mr. Ross initially tested

positive for opioids and failed to provide a Safety Concern Letter. Even though Dr. Lopez changed

20

the drug test result to "negative,"3 it is undisputed that Ms. Starkey informed Mr. Ross that in order

to continue his employment as a CMV driver he had to provide a Safety Concern Letter, [see Filing

No. 43-10 at 1], and that Mr. Ross failed to provide one, [see Filing No. 43-1 at 12 (Mr. Ross

testifying: "Q: But you didn't have a safety concern letter for the prescription from 2014 because

[Dr. Chee] retired and no one else would do it for you? A: Right")]. Ms. Starkey's letter to Mr.

Ross unequivocally warned him that "[t]his letter will confirm the verbal notification and will

detail your responsibilities in securing the necessary documentation to allow you to continue to

work in a safety sensitive function." [Filing No. 43-10 at 1.] Even though Mr. Ross believed that

he was still permitted to take medication prescribed in 2014,4 he still needed to provide a letter

from his prescribing physician and he was unable to do so. His failure to provide the Safety

Concern Letter violated FedEx policy and DOT policy. And any notion that it was FedEx's fault

that Mr. Ross could not secure a Safety Concern Letter because it would not let him see Dr. Lopez

is irrelevant. Ms. Starkey's April 12, 2019 letter specifically stated that the Safety Concern Letter

had to be from the "prescribing physician in writing on his/her letterhead," among other things.

Dr. Lopez was not the prescribing physician.

3 The use of the term "negative" implies that the test did not actually uncover the use of opioids,

but the parties do not dispute that the test accurately reflected that Mr. Ross had used opioids. For

purposes of Mr. Ross, though, the change to "negative" meant that he could drive a CMV if he was

able to provide a Safety Concern Letter to FedEx.

4 The Court has concerns regarding Mr. Ross's veracity as to never re-filling his 2014 prescription

and simply taking the twenty pills as initially prescribed over a five-year period. As the Court has

noted, it is apparent from the pictures provided by Mr. Ross, and from documentation from Mr.

Ross's pharmacy, that Mr. Ross re-filled the 2014 prescription at least once. Nevertheless, while

the Court takes the discrepancy between Mr. Ross's sworn Affidavit and the photographs and

pharmacy records seriously, whether Mr. Ross re-filled the prescription is not ultimately

significant to the Court's analysis as it does not change the fact that Mr. Ross never provided a

Safety Concern Letter.

21

Mr. Ross also has not presented any evidence that his drug test was not random. It is

undisputed that DSI was the third-party administrator of FedEx's drug tests, and that DSI provided

FedEx with a list of employees who would be randomly tested – and not the other way around.

[See Filing No. 43-6 at 2.] Mr. Ross's own belief that his drug test was not random cannot support

a disparate treatment claim. See Winsley v. Cook Cnty., 563 F.3d 598, 605 (7th Cir. 2009)

(plaintiff's "bare assertions" that treatment was linked to protected status were insufficient to

establish a link between the protected status and the treatment).

In short, Mr. Ross has not presented evidence from which a reasonable jury could conclude

that he was terminated due to his disability. Rather, he was terminated for violating FedEx policy

and DOT regulations by failing to provide a Safety Concern Letter addressing his use of a five-

year-old prescription for opioids. The Court GRANTS FedEx's Motion for Summary Judgment

on Mr. Ross's ADA discrimination claim based on disparate treatment.

2. Failure to Accommodate

In support of its Motion for Summary Judgment, FedEx argues that Mr. Ross was not a

qualified individual, and that he has not presented evidence that FedEx failed to provide a

reasonable accommodation. [Filing No. 42 at 14-15.] FedEx notes that Mr. Ross's requested

accommodation – the appropriate use of a prescribed medicine – is not reasonable because the

medicine was prescribed in 2014 and "should have been finished in five days." [Filing No. 42 at

14.] FedEx contends that Mr. Ross has admitted that he did not request any reasonable

accommodation for any alleged disabilities and that as for difficulties with his teeth, he "has not

provided any medical evidence that an accommodation was necessary and testified that no

subsequent employer is accommodating this particular issue." [Filing No. 42 at 14.]

22

In his response brief, Mr. Ross seems to conflate his disparate treatment claim with his

failure to accommodate claim, proceeding through the elements of a disparate treatment claim but

then discussing the "final element" of his failure to accommodate claim. [Filing No. 58 at 18-21.]

He argues that FedEx failed to engage in the collaborative process, by "requiring or even

permitting [Mr.] Ross to visit a medical review officer to evaluate the use of the prescribed pain

medication," or by "approv[ing his] FMLA leave and requir[ing him] to take an FMLA day every

time he needed to take a prescribed pain pill." [Filing No. 58 at 21.]

FedEx argues in its reply that Mr. Ross's "undisclosed use of the prescription violated DOT

regulations and company policy and cannot be considered reasonable." [Filing No. 65 at 8.]

"A claim for failure to accommodate under the ADA…requires proof [that] (1) plaintiff

was a qualified individual with a disability; (2) defendant was aware of his disability; and (3)

defendant failed to accommodate his disability reasonably." Scheidler, 914 F.3d at 541 (emphasis

omitted). Mr. Ross's failure to accommodate claim fails for the simple reason that he testified at

his deposition that he never requested an accommodation for any of his purported disabilities.

Specifically, Mr. Ross testified as follows:

Q: All right. This – okay. Let's unpack that a bit because I'm not sure how they

all relate. What is your disability?

A: My Bell's palsy's something I'm going to have for the rest of my life, and my

hearing.

Q: Okay. And we already discussed that there is no accommodation for your Bell's

palsy; correct?

A: I don't know what you mean by that.

Q: Well, I mean the employer can't do anything to assist you with your job because

you have that?

A: I guess not.

23

Q: Right? I mean, you didn't go to FedEx and say, Hey, I need a special chair or I

need anything; correct?

A: No, I did not. No.

Q: Okay. So that's not really a disability in terms of for an employer. You can do

your job. You don’t need anything special to do your job.

A: I'm sorry. Yes.

Q: Okay. Let's talk about your teeth. Is there something that you needed to work

in order to assist with your teeth?

A: If I'm in pain, I just need water to kind of keep swashing it.

Q: Okay.

A: That's how I got through my day most of the time.

Q: Did FedEx ever deny your ability to have water?

A: Have they?

Q: Yes.

A: No.

[Filing No. 43-1 at 10-11.]

Mr. Ross's testimony is fatal to his failure to accommodate claim. FedEx cannot have

failed to accommodate his disability when Mr. Ross himself testified that he did not require any

accommodation and did not request any accommodation. Further, even if he required an

accommodation to take prescription pain medication as needed, Mr. Ross has not presented any

evidence that FedEx failed to reasonably accommodate him. FedEx gave Mr. Ross the opportunity

to provide a Safety Concern Letter addressing his prescription pain medication use, and Mr. Ross

did not do so. As discussed above, FedEx was under no obligation to help Mr. Ross obtain the

Safety Concern Letter and, in any event, the letter had to come from the prescribing physician, not

from Dr. Lopez.

24

Mr. Ross has not presented sufficient evidence from which a reasonable jury could

conclude that FedEx failed to reasonably accommodate Mr. Ross's disability, and the Court

GRANTS FedEx's Motion for Summary Judgment as to Mr. Ross's failure to accommodate claim.

B. ADA Retaliation Claim

FedEx argues in support of its Motion for Summary Judgment that Mr. Ross has not

pointed to any evidence that FedEx retaliated against him, and that any claim that taking a

prescription from 2014 was protected activity is unfounded. [Filing No. 42 at 15.] FedEx also

notes that Mr. Ross had not asked for any reasonable accommodations for a disability, and that

any request to use the prescription would have been unreasonable and was against DOT

regulations. [Filing No. 42 at 15.] FedEx again notes that Mr. Ross did not provide a Safety

Concern Letter, and asserts that Mr. Ross has not shown that FedEx's reason for terminating him

was dishonest. [Filing No. 42 at 16.]

In his response, Mr. Ross argues that he engaged in protected activity by informing FedEx

that he needed to take prescription pain medication from time to time, and that his termination was

"a textbook case of retaliation." [Filing No. 58 at 23.]

FedEx argues in its reply that Mr. Ross did not disclose his prescription pain medication

use on his DOT Forms and did not request an accommodation, so he has not shown that he engaged

in a protected activity. [Filing No. 65 at 9.] FedEx reiterates its arguments regarding a lack of

evidence of pretext. [Filing No. 65 at 9.]

The ADA provides that "[i]t shall be unlawful to coerce, intimidate, threaten, or interfere

with any individual in the exercise or enjoyment of, or on account of his or her having exercised

or enjoyed, or on account of his or her having aided or encouraged any other individual in the

exercise or enjoyment of, any right granted or protected by this chapter." 42 U.S.C. § 12203(b).

25

A claim of retaliation under the ADA requires proof that "[the plaintiff] engaged in protected

activity, that [he] suffered an adverse action, and that there is a causal connection between the

two." Rowlands v. United Parcel Serv. – Fort Wayne, 901 F.3d 792, 801 (7th Cir. 2018). The

retaliation must be "a but-for cause of the adverse employment action." Serwatka v. Rockwell

Automation, Inc., 591 F.3d 957, 963 (7th Cir. 2010).

The threshold issue in this case is whether Mr. Ross engaged in a protected activity under

the ADA. He claims that he did, because he needed to take the prescription pain medication

periodically. But the problem with his argument is that he did not disclose his use of the pain

medication on his DOT Forms, and he testified that he never requested an accommodation under

the ADA related to taking the pain medication. In any event, even if he had engaged in protected

activity, he has not presented any evidence of a causal link between the protected activity and his

termination. Mr. Ross would need to "demonstrate a triable issue as to whether discrimination

motivated [his termination]." Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). Again, under

Ortiz, the Court considers the evidence as a whole, without categorizing it as "direct" or "indirect"

evidence. Ortiz, 834 F.3d at 765. That evidence shows that Mr. Ross was terminated for failing

to provide a Safety Concern Letter, which violated FedEx policy and DOT regulations. It does

not show that he was fired for requesting to take prescription pain medication from time to time.

In short, there is no evidence from which a reasonable jury could conclude that FedEx

retaliated against Mr. Ross for any activities he undertook that were protected by the ADA. The

Court GRANTS FedEx's Motion for Summary Judgment as to Mr. Ross's ADA retaliation claim.

C. ADA Confidentiality Violation Claim

As to Mr. Ross's confidentiality violation claim under the ADA – in which he alleges that

FedEx disseminated his confidential medical and disability-related information to employees of

26

FedEx and potential employers "who had no need to be aware of [his] condition," [Filing No. 1 at

10] – FedEx argues that drug tests are not considered medical examination, the results of which

are protected under the ADA. [Filing No. 42 at 16-17.] It also asserts that Mr. Ross has not

presented evidence of "any sort of tangible injury as a result of the alleged disclosure." [Filing

No. 42 at 17 (quotation omitted).]

Mr. Ross does not address his ADA confidentiality violation claim in his response brief.

[See Filing No. 58.] FedEx notes this in its reply, and argues that Mr. Ross has abandoned that

claim. [Filing No. 65 at 10.]

Mr. Ross did not respond to FedEx's arguments regarding his ADA confidentiality

violation claim, [see Filing No. 58], and has therefore waived any opposition to those arguments.

See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an

argument…results in waiver"); Laborers' Inter. Union of North America v. Caruso, 197 F.3d 1195,

1197 (7th Cir. 1999) (holding that arguments not presented in response to motion for summary

judgment are waived); De v. City of Chicago, 912 F. Supp. 2d 709, 734 (N.D. Ill. 2012) ("Failure

to set forth any evidence or to develop any arguments in opposition to the moving party's summary

judgment motion results in waiver of the nonmoving party's arguments and an abandonment of his

claims"). Consequently, the Court GRANTS FedEx's Motion for Summary Judgment on Mr.

Ross's confidentiality violation claim under the ADA.

D. FMLA Claims

Although Mr. Ross sets forth only one Count in his Complaint under the FMLA – Count

VI, for "Violations of the [FMLA]," [Filing No. 1 at 11] – it appears that he asserts claims for

interference with his rights under the FMLA, and discrimination/retaliation for exercising those

rights. The Court addresses each claim in turn.

27

1. FMLA Interference

In support of its Motion for Summary Judgment, FedEx argues that Mr. Ross received all

of the FMLA leave he requested, with the exception of his last request right before his termination.

[Filing No. 42 at 19.] FedEx notes that Mr. Ross's last FMLA leave request was delayed because

he had failed to provide certain documentation and that his "vague allegations of denials of other

leave requests are not supported by any evidence." [Filing No. 42 at 19-20.]

In his response, Mr. Ross argues that Dr. Sweeny submitted the paperwork that FedEx

requested on August 13, 2018, that FedEx did not request any additional documentation, and that

FedEx never approved the request. [Filing No. 58 at 17.]

In reply, FedEx contends that Mr. Ross never mentioned needing surgery in any of his

paperwork related to his August 2018 FMLA leave request. [Filing No. 65 at 10-11.] It also

asserts that it requested additional information from Mr. Ross in connection with his last FMLA

leave request, and did not receive that additional information before Mr. Ross's termination.

[Filing No. 65 at 11.] FedEx notes that Mr. Ross now claims he needed FMLA leave for dental

and hearing issues, but that the paperwork he had submitted from 2014 to 2018 only mentioned

migraines, sleep apnea, and Bell's palsy. [Filing No. 65 at 11-12.] FedEx also argues that even if

there was a delay in approving his August 2018 FMLA leave request, Mr. Ross testified that his

supervisor told him to take whatever days off that he needed and that those days would be back-

approved once his leave request was granted. [Filing No. 65 at 12.]

The FMLA entitles eligible employees suffering from a qualifying illness to up to twelve

weeks of unpaid leave in a twelve-month period. 29 U.S.C. § 2612(a)(1)(A)-(D). Under the

FMLA, it is "unlawful for [an] employer to interfere with, restrain, or deny" an employee's

"exercise of or … attempt to exercise [] any right provided under" the Act. 29 U.S.C. § 2615(a)(1).

28

To prove an FMLA interference claim, Mr. Ross must establish that: "(1) he was eligible for

the FMLA's protections, (2) his employer was covered by the FMLA, (3) he was entitled to take

leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his

employer denied [or interfered with]… FMLA benefits to which he was entitled." Preddie v.

Bartholomew Consol. Sch. Corp., 799 F.3d 806, 816 (7th Cir. 2015) (quoting Cracco v. Vitran

Exp., Inc., 559 F.3d 625, 635-36 (7th Cir. 2009) (internal quotation marks omitted)).

Here, there is no dispute that Mr. Ross was an eligible employee and that FedEx was

covered by the FMLA. At issue is whether FedEx interfered with his rights under the FMLA. The

undisputed facts show that Dr. Sweeny submitted Mr. Ross's FMLA paperwork to FedEx to renew

his existing leave for treatment of Bell's palsy, migraines, and sleep apnea on August 13, 2018.

FedEx acknowledges that there was a delay in processing Mr. Ross's request but by all accounts,

including Mr. Ross's, Mr. Ross was still able to take FMLA leave after he submitted his August

13, 2018 request but before it was formally granted. [See Filing No. 58-2 at 116-18.] When FedEx

eventually informed Mr. Ross that he needed to submit additional documentation for his August

13, 2018 FMLA leave request, Dr. Sweeny submitted the missing documentation on March 18,

2019. FedEx requested additional missing information from Mr. Ross, and he did not provide it

before his termination. Consequently, Mr. Ross's last FMLA leave request was never formally

granted. Further, the documentation Mr. Ross submitted in connection with the August 13, 2018

request and the March 18, 2019 supplementation did not mention dental or hearing issues, or a

need for surgery – the bases asserted by Mr. Ross for Mr. his FMLA interference claim.

Additionally, to the extent that Mr. Ross is claiming that he made a separate request for

FMLA leave on March 30, 2019 after taking the pain medication, FedEx was under no obligation

to approve or deny that request on the spot, without any paperwork to support Mr. Ross's request.

29

See 29 U.S.C. § 2613(a) ("An employer may require that a request for leave under subparagraph

(C) or (D) of paragraph (1) or paragraph (3) of section 2612(a) of this title be supported by a

certification issued by the health care provider of the eligible employee…as appropriate. The

employee shall provide, in a timely manner, a copy of such certification to the employer"); Hansen

v. Fincantieri Marine Group, LLC, 763 F.3d 832, 837 (7th Cir. 2014) ("When an employee initially

requests FMLA leave, the employer may take the employee at his word and grant the request, or

may request certification by the employee's healthcare provider") (quotation and citation omitted).

As the Court has already noted, the only FMLA leave requests Mr. Ross submitted that were

properly supported by documentation were for treatment of Bell's palsy, migraines, and sleep

apnea – not for chronic pain from dental issues.

In sum, Mr. Ross has not produced evidence from which a reasonable jury could conclude

that FedEx denied any completed requests for FMLA leave related to any of his health issues, or

related to a need for surgery. The Court GRANTS FedEx's Motion for Summary Judgment on

Mr. Ross's FMLA interference claim.

2. FMLA Discrimination/Retaliation

FedEx argues in support of its Motion for Summary Judgment that Mr. Ross has not shown

that his request for FMLA leave caused his termination. [Filing No. 42 at 20.]

In his response, Mr. Ross notes that he engaged in protected activity when he requested

FMLA leave on August 13, 2018, that he was denied leave on April 1, 2019 and then was subjected

to a drug test, and that he was terminated shortly thereafter. [Filing No. 58 at 23.] Mr. Ross argues

that the temporal proximity between his re-submission of his FMLA request just two weeks before

his drug test and his eventual termination creates a genuine issue of material fact regarding FedEx's

motives. [Filing No. 58 at 24.]

30

In reply, FedEx reiterates its arguments that it never denied Mr. Ross's FMLA leave

requests. [Filing No. 65 at 13.]

The FMLA prohibits employers from discharging or otherwise discriminating against

employees for exercising or attempting to exercise FMLA rights. 29 U.S.C. § 2615(a)(2),(b).

Unlike an interference claim, a claim of retaliation requires a showing of discriminatory or

retaliatory intent. See Kauffman v. Federal Express Corp., 426 F.3d 880, 884-85 (7th Cir. 2005);

Goezler v. Sheboygan Cnty., Wis., 604 F.3d 987, 995 (7th Cir. 2010). In asserting a retaliation

claim under the FMLA, a plaintiff may proceed under the direct or indirect methods of proof.

Makowski v. SmithAmundsen LLC, 662 F.3d 818, 823-24 (7th Cir. 2011). A plaintiff can state a

claim under the direct method by alleging that: (1) he exercised or attempted to exercise rights

protected by the FMLA; (2) he suffered an adverse employment action; and (3) there is a causal

link between the protected activity and rights protected by the FMLA. Ames v. Home Depot

U.S.A., Inc., 629 F.3d 665, 670 (7th Cir 2011). Under the indirect method, a plaintiff can state a

claim for FMLA retaliation by alleging that he was treated less favorably than other similarly

situated employees who did not take FMLA leave, even though he was performing his job in a

satisfactory manner. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006).

Mr. Ross's FMLA discrimination/retaliation claim fails because has not presented any

evidence that he was terminated for requesting FMLA leave. Rather, he was terminated for failing

to provide a Safety Concern Letter after testing positive for opioids. The temporal proximity

between his FMLA leave request and his eventual termination is not enough, without more, to link

Mr. Ross's termination to his leave request. Silk v. Board of Trustees, Moraine Valley Comm.

Coll., Dist. No. 524, 795 F.3d 698, 710 (7th Cir. 2015) ("[S]uspicious timing alone will rarely be

sufficient…to create a triable issue") (quotation and citation omitted); Burks v. Wisconsin Dept. of

31

Transp., 464 F.3d 744, 758-59 (7th Cir. 2006) ("[S]uspicious timing alone…does not support a

reasonable inference of retaliation [because the] mere fact that one event preceded another does

nothing to prove that the first event caused the second"). Further, the evidence shows that FedEx

had approved Mr. Ross's FMLA leave requests from 2014 to 2018, and that it allowed him to take

time off before his last request was formally approved and agreed to back-approve that time once

his FMLA leave request was formally granted. There is no evidence to support the notion that

FedEx suddenly stopped approving requests and, moreover, terminated him for making the

requests.

Absent any evidence from which a reasonable jury could conclude that Mr. Ross's

termination was in retaliation for requesting FMLA leave, or that FedEx discriminated against Mr.

Ross for requesting FMLA leave by terminating him, the Court GRANTS FedEx's Motion for

Summary Judgment on Mr. Ross's FMLA discrimination/retaliation claim

E. Intentional Infliction of Emotional Distress

In support of its Motion for Summary Judgment, FedEx argues that Mr. Ross's termination

did not constitute the type of outrageous conduct required to support an intentional infliction of

emotional distress claim under Indiana law. [Filing No. 42 at 18-19.]

Mr. Ross responds that FedEx's conduct caused him to suffer additional hearing loss and

severe emotional damage because he had to "delay a much needed medical procedure to relieve

pain." [Filing No. 58 at 24-25.] He also argues that pain in his tooth and jaw continued until he

was able to receive medical treatment in May 2019, and that he has yet to have a procedure on his

ear to correct progressive hearing loss because FedEx did not approve his last FMLA leave request.

[Filing No. 58 at 25.]

32

In its reply, FedEx notes that Mr. Ross never mentioned needing surgery in his FMLA

leave requests. [Filing No. 65 at 10.]

Because the Court has granted FedEx's Motion for Summary Judgment on all of Mr. Ross's

federal claims, it must determine whether it will exercise jurisdiction over his intentional infliction

of emotional distress claim. A district court ultimately has discretion whether to exercise

supplemental jurisdiction over a plaintiff's state law claims. Carlsbad Tech., Inc. v. HIF Bio, Inc.,

556 U.S. 635, 639 (2009); 28 U.S.C. § 1367(c) ("The district courts may decline to exercise

supplemental jurisdiction over a claim…if…the district court has dismissed all claims over which

it has original jurisdiction…"). When deciding whether to exercise supplemental jurisdiction, "a

federal court should consider and weigh in each case, and at every stage of the litigation, the values

of judicial economy, convenience, fairness, and comity." City of Chicago v. Int'l Coll. of Surgeons,

522 U.S. 156, 173 (1997) (quotations and citations omitted).

The Court finds that the balance of factors weighs in favor of exercising supplemental

jurisdiction over the remaining state law claim. First, as to judicial economy, the parties have

already engaged in discovery on the intentional infliction of emotional distress claim. Second, as

far as convenience, witnesses and evidence related to the intentional infliction of emotional distress

claim are likely located in Indianapolis, Indiana where this Court and the appropriate state court

to adjudicate that claim are located, making this factor a wash. And third and fourth, the Court is

perfectly capable of applying Indiana law, and does not find that either party would be prejudiced

by it doing so, making those factors weigh in favor of this Court exercising supplemental

jurisdiction over the state law intentional infliction of emotional distress claim.

In order to prove a claim for intentional infliction of emotional distress, Mr. Ross must

establish that FedEx engaged in extreme and outrageous conduct, which intentionally or recklessly

33

caused severe emotional distress to another. Westminster Presbyterian Church of Muncie v.

Yonghong Cheng, 992 N.E.2d 859, 870 (Ind. Ct. App. 2013) (citing Cullison v. Medley, 570 N.E.2d

27, 31 (Ind. 1991)). Indiana courts use a rigorous standard to establish extreme or outrageous

conduct. Westminster, 992 N.E.2d at 870. Outrageous conduct must be “so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.” Id. (quotation and citation omitted). "Generally, the case is one in

which the recitation of the facts to an average member of the community would arouse his

resentment against the actor, and lead him to exclaim, 'Outrageous!'" Bradley v. Hall, 720 N.E.2d

747, 752-53 (Ind. Ct. App. 1999).

Mr. Ross simply has not presented evidence to support the notion that FedEx's conduct in

considering his FMLA leave requests rose to the level of extreme or outrageous conduct. FedEx

granted all of Mr. Ross's leave requests except for his last one. Mr. Ross's doctor submitted

missing documentation just a few weeks before Mr. Ross's termination, and Mr. Ross never

submitted follow-up information that Ms. Rhoades requested after that. Mr. Ross's claim that

FedEx's failure to approve the request constituted extreme and outrageous conduct because it led

to additional hearing loss and prolonged dental issues due to not being able to undergo surgery is

undercut by the fact that he did not mention needing surgery – or even needing time off for dental

or hearing issues – in his leave request. The record evidence could not lead a reasonable jury to

conclude that FedEx engaged in the type of extreme and outrageous conduct needed to support

Mr. Ross's intentional infliction of emotional distress claim, the claim fails as a matter of law, and

the Court GRANTS FedEx's Motion for Summary Judgment on that claim.

34

IV.

CONCLUSION

Mr. Ross may have believed that he was permitted to take pain medication prescribed in

2014 over a five-year period as needed, but the fact remains that he did not provide FedEx with a

Safety Concern Letter from his prescribing physician after testing positive for the use of opioids.

His failure to produce any evidence that FedEx terminated him based on his disability, that FedEx

terminated him due to his exercise of rights under the ADA or the FMLA, that FedEx interfered

with his rights under the FMLA, or that FedEx engaged in extreme or outrageous conduct, is fatal

to his claims. For the foregoing reasons, the Court GRANTS FedEx's Motion for Summary

Judgment, [43]. Final judgment shall enter accordingly.

Date: 9/21/2021 -

Hon. Jane Magnus-Stinson, Judge

‘United States District Court

Southern District of Indiana

Distribution via ECF only to all counsel of record

35