A. et al v. Millard Refrigerated Services Inc.
Filing
126
MEMORANDUM Opinion and Order Signed by the Honorable Joan H. Lefkow on 9/28/2012:Mailed notice(mad, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
A. SAMSON PILLAY and ANTHONY
RAMIREZ
Plaintiffs,
vs.
MILLARD REFRIGERATED SERVICES,
INC.
Defendant.
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No. 09-cv-5725
Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
A. Samson Pillay (“Pillay”) and Anthony Ramirez (“Ramirez”) filed this law suit against
Millard Refrigerated Services, Inc. (“Millard”) alleging claims under the Americans With
Disabilities Act (“ADA”), 42 U.S.C. §§ 12102 et seq.1 and several Illinois law claims. Ramirez
alleges employment discrimination in violation of the ADA (count I) and retaliatory discharge under
Illinois law (count III). Pillay alleges retaliation in violation of the ADA (count II) and state law
claims of retaliatory discharge (count IV), libel/slander (count V), tortious interference with a
prospective contract (count VI), and negligent spoliation (count VII).2 Millard has moved under
1
Effective January 1, 2009, the ADA was significantly amended. See ADA Amendments of
2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). Because Congress “did not express its intent for these
changes to apply retroactively,” the court will apply the version of the ADA in place when the events that
gave rise to the claims at issue took place. See Fredricksen v. United Parcel Serv., Co., 581 F.3d 516,
521 n.1 (7th Cir. 2009).
2
This court has jurisdiction over these claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §
1367. Venue is proper under 28 U.S.C. § 1391(b) as the parties reside in this district and the events that
gave rise to Ramirez and Pillay’s claims occurred in this district.
Federal Rule of Civil Procedure 56 for partial summary judgment as to counts I, II, IV, V, and VI.
[Dkt. 82.] For the reasons explained below, the motion is denied with respect to counts I and II and
granted with respect to counts IV, V, and VI.3
FACTUAL BACKGROUND4
Millard is a third party logistics company that warehouses its customers’ perishable products
in a refrigerated or frozen environment. (Def. L.R. 56.1 ¶ 3.) Millard does not own any of the
products; rather, it receives and stores those products for a fee and then ships them elsewhere as
directed by its customers. (Id. ¶ 4.) In 2000, Pillay began working at Millard’s facility in Geneva,
Illinois as a Human Resources Coordinator. (Id. ¶ 30.) Ramirez began working at Millard’s Geneva
facility beginning in 2008 as a temporary employee and later as a “regular” (as opposed to
temporary) employee. (Id. ¶ 9.)
Anthony Ramirez
Before working at Millard, Ramirez worked at Home Depot as part of a freight team,
stocking shelves after business hours. (Def. L.R. 56.1 ¶ 6.) In October 2007, while working at
Home Depot, Ramirez suffered an on-the-job injury to his knee, which required surgery. (Id.)
Ramirez was off work for a period of three months. (Id. ¶ 7.) By the time he returned to work at
3
In order to maintain a claim under the ADA, a plaintiff must file charges with the EEOC within
300 days of the alleged unlawful employment practice. Stepney v. Naperville Sch. Dist. 203, 392 F.3d
236, 239 (7th Cir. 2004). Ramirez and Pillay both brought charges with the EEOC based on the conduct
giving rise to their ADA claims within this time period.
4
The facts are stated in the light most favorable to Ramirez and Pillay, and are taken from the
parties’ statement of facts and supporting documents pursuant to Local Rule 56.1. Millard’s statements of
facts are abbreviated as Def. L.R. 56.1, and its response to Ramirez and Pillay’s statements of facts are
abbreviated as Def. Resp. to Pl. L.R. 56.1. Ramirez and Millard’s statements of facts are abbreviated as
Pl. L.R. 56.1.
2
Home Depot, Ramirez had made a complete recovery. (Id.) He could do everything he had been
able to do before the injury. (Id.)
In connection with the injury, Ramirez filed a Worker Compensation (“WC”) claim and
received a settlement in the amount of $12,000. (Def. L.R. 56.1 ¶ 6.) After submitting his WC
claim, the Illinois Industrial Commission (“IIC”) informed Ramirez that he had a 17.5 percent
disability (or 17.5 impairment rating). (Id. ¶ 17.) In February 2008, approximately a month and a
half after returning to work, Home Depot terminated Ramirez due to his failure to report an accident
involving damage to merchandise. (Id. ¶ 8.)
During June, 2008, Ramirez was hired for a position at Millard through a temporary
employment agency. (Def. L.R. 56.1 ¶ 9; Pl. L.R. 56.1 ¶ 16.) As a temporary employee, Ramirez
worked as a “picker,” a position which entailed using an electric pallet jack or forklift to fulfill
orders of refrigerated or frozen products to be shipped. (Def. L.R. 56.1 ¶ 9.) On his June 2008
employment application, Ramirez indicated that he would be “able to consistently and reliably
perform the essential functions of the job with or without reasonable accommodation.” (Id. ¶ 11.)
The application did not ask about any prior work-related injury. (Id.)
Temporary employees who performed satisfactorily were eligible for regular employment
with Millard. (Def. L.R. 56.1 ¶ 10.)
Applicants were required to fill out a Personal and
Confidential Conditional Job Offer & Medical Review Form (“Conditional Job Offer Form”). (Id.)
Ramirez had received good reviews as a temporary employee (Pl. L.R. 56.1 ¶¶ 17–18), so he
applied for a regular position.
In his Conditional Job Offer Form, Ramirez disclosed that while working for Home Depot
he had suffered an on-the-job injury to his knee which required three months off work and that he
3
had filed a WC claim in connection with that injury. (Def. L.R. 56.1 ¶ 14, Exhibit (“Ex.”) F.)
Ramirez further provided on his application that he had no (0 percent) permanent disability resulting
from the October 2007 injury. (Id.) On July 28, 2008, Millard hired Ramirez as a regular employee.
(Id. ¶ 12.) Ramirez was then reassigned to a new position operating a forklift. (Pl. L.R. 56.1 ¶ 21.)
Ramirez, like other new hires, was subject to a 90 day probationary period. (Def. L.R. 56.1
¶ 12.) The purpose of the probationary period was to allow the employee time to adjust to his or her
new position while providing the supervisor an opportunity to assess the employee’s suitability to
the position and to verify information provided on the Conditional Job Offer Form. (Id. ¶¶ 14, 28.)
Moreover, Millard employed a labor management system (“LMS”) to track its warehouse
employees’ productivity and performance, which it would then measure against its own performance
standards. (Id. ¶ 26.) Millard advised Ramirez that it expected his productivity to be between 95
and 98 percent. (Id. ¶ 27.) Millard expected a performance level of 100 percent for its employees.
(Id.) Probationary employees at Millard were held to a higher standard of conduct. (Id. ¶ 28.)
Ramirez was told that his performance and LMS numbers were great. (Pl. L.R. 56.1 ¶ 21.)
Ramirez’s Conditional Job Offer Form was sent to Millard’s headquarters in Omaha,
Nebraska. (Pl. L.R. 56.1 ¶ 22.) Rachel O’Dell, a Claims Risk Management Specialist for Millard
at headquarters, reviewed Ramirez’s Conditional Job Offer Form. (Def. L.R. 56.1 ¶¶ 18–19.)
O’Dell recognized that missing three months of work as the result of a knee injury indicated that the
injured worker had undergone surgery and that, in Illinois, an injury requiring surgery would not
yield a zero percent impairment rating as Ramirez had indicated on his Conditional Job Offer Form.
(Id. ¶ 20.)
4
O’Dell advised either Mark Domroes, General Manager of the Millard Plant in Geneva, or
Pillay that Ramirez had an impairment rating assigned by the ICC which he did not indicate in his
Conditional Job Offer Form. (Def. L.R. 56.1 ¶ 22.) On August 20, 2008, Domroes emailed Nick
Dayan, Millard’s Senior Vice President of Human Resources:
Don’t forget about Anthony Ramirez. We discussed he was an injury risk, had a 13
wk settlement from a previous job and was rated 17.5% perm disability. Is he
someone we want to probation out now? (hired 7/28)
(Pl. L.R. 56.1 ¶¶ 6–7.) Dayan responded to Domroes the same day, “We have this all documented
right? . . . Let’s get him out asap.” (Id. ¶ 7.) Dayan testified that his response to Domroes’ email
was in reference to a separate conversation regarding Ramirez’s performance. (Def. Resp. to Pl.
L.R. 56.1 ¶ 8.) During his deposition, Domroes explained his understanding of the 17.5 percent
disability rating referenced in his email to Dayan:
This information was supplied to me by Sam, Sam Pillay. So he had brought it to my
attention that he had found out that this person was - - like I said, was previously
injured, had a permanent disability, he was a recent new hire. And my understanding
was that it was not put on his application. I don’t know - - I can’t speak for Sam.
I don’t know that we would have hired someone if that was known up front just
because of the physical requirements for the job and having to lift and twist and, you
know, that would have probably had to potentially gone through our corporate office.
So that was brought to my attention, so I wanted to run it up the ladder. I was not
going to make a decision to keep him or not keep him. So my question basically to
Nick was giving him the facts, just saying that, hey, this gentleman has come here
with some physical limitations, he’s a new hire, he’s still on probation, you know,
he’s a probationary employee. So my understanding under Illinois law, that, you
know, you can be let go for any reason whatsoever. And the second email was from
Nick telling me to - - instructing me to let him go.
(Def. L.R. 56.1, Ex. B, Domroes Dep. at 25–26.) Domroes testified about physical abilities that he
believed Ramirez was lacking:
To be honest with you, in looking at the e-mail, and again I told you I did not recall
whether this was legs or arms, but, you know, the - - there’s lifting involved with
the jobs, especially new hires traditionally have put - - are put into a picking role.
5
That is the probably - - I don’t necessarily want to say an entry level, because we
fill employees where they’re needed. But case pickers are in the freezer for the
longest period of time, so it’s the roughest, so you kind of graduate out onto the
docks of loading and unloading as you get with experience, and you’re operating
a piece of equipment which takes more skill.
So, you know, to operate a piece of equipment, you need a skill set with, you know,
a fully functioning - - I mean, if you’re limited in any capacity, and I’m not a
doctor, I don’t know what 17-and-a-half percent means. But if there’s a potential
there that he can’t steer the forklift properly or brake properly, that he can’t manage
that, that is a potential risk to other employees. Lifting requirements, I believe it
was at least 25 pounds, if not up to 50 pounds, that they’re required to lift, so that
could be a potential if he’s - - he could injure himself. If he was favoring one arm
or one leg, he might put undue duress on another part of the body and then
potentially risk injuring himself. So I believe that the thought process behind that
was to avoid a potential workers’ comp claim and injury to himself and/or others.
(Def. L.R. 56.1, Ex. B, Domroes Dep. at 27–28; Pl. L.R. 56.1 ¶ 4.) With regard to the decision to
terminate Ramirez, Domroes explained that “we’ve had terminations for performance and - - but in
this case, this wasn’t really performance related directly, it was about his - - his ability to do the job
and his injury, previous injury.” (Def. L.R. 56.1, Ex. B., Domroes Dep. at 41.)
On August 21, 2008, after approximately four weeks on the job, Ramirez had a performance
level of 59 percent, which was lower than Millard’s claimed performance expectation level of 100
percent. (Def. L.R. 56.1 ¶ 29, Ex. J.) Millard terminated Ramirez on August 21, 2008. (Def. L.R.
56.1 ¶ 28.) Millard provided Ramirez with a “Termination Report” which checked a box titled
“PROBATIONARY PERIOD; NO MISCONDUCT” denoting the reason for his termination. (Pl.
L.R. 56.1 ¶ 26, Ex. 16.) The Termination Report did not reference Ramirez’s LMS-determined
performance level as the reason for his termination. (Id.) In August 2009, the raw data used to
create Ramirez’s LMS numbers were automatically deleted. (Pl. L.R. 56.1 ¶ 32.)
6
A. Samson Pillay
Millard hired Pillay on April 17, 2000 as a Human Resources Coordinator. (Def. L.R. 56.1
¶ 30.) Part of Pillay’s duties included being involved in hiring and firing. (Id.) He “administered”
terminations based on the recommendations of supervisors, the operations manager, or the General
Manager. (Id. ¶ 31.) From 2000 to 2008, Pillay received good/great performance reviews in
addition to pay raises and bonuses. (Pl. L.R. 56.1 ¶ 11.) Pillay did not work with or know Ramirez
when Ramirez worked at Home Depot. (Def. L.R. 56.1 ¶ 65.)
Dayan began working at Millard in its corporate headquarters on March 17, 2008. (Def. L.R.
56.1 ¶¶ 32, 34.) Shortly thereafter, Dayan reviewed a complaint dated March 7, 2008 about Pillay.
(Id. ¶ 35.) On March 26, 2008, Dayan received another complaint that referred to Pillay. (Id. ¶ 37.)
In March and April 2008, Dayan visited the Geneva facility, at which time he received numerous
verbal complaints about Pillay. (Id. ¶ 40.) The complaints were directed to Pillay’s (1) lack of
confidentiality in his HR role; (2) discouraging/warning employees about attempting to contact
corporate headquarters; (3) withholding freezer gear from employees; (4) mean, disrespectful and
abusive treatment of employees; and (5) general unapproachability. (Id.) Dayan discussed these
complaints with Pillay and decided in collaboration with Domroes that Pillay would be placed on
a performance improvement plan (“PIP”), the goal of which was to make Pillay a better employee
by addressing deficiencies identified in his performance. (Id. ¶¶ 45-46.) The PIP identified a
number of areas of needed improvement, including (1) confidentiality; (2) favoritism; (3) hiring; (4)
communication; and (5) employee development. (Id. ¶ 45.) The PIP also required Pillay to
complete the program and to maintain sustained results after the program’s completion. (Id. ¶ 46.)
Pillay did not believe that the PIP was merited (Pl. L.R. 56.1 ¶ 13) and disagreed with the terms
7
contained therein. (Pl. L.R. 56.1, Ex. 12.) Millard had received complaints about other Millard
employees during 2007, but only Pillay received disciplinary repercussions. (Pl. L.R. 56.1 ¶ 36.)
Specifically, Dayan reviewed prior complaints about Operations Manager Mike Polerecky and
Domroes. (Def. L.R. 56.1 ¶ 42; Pl. L.R. 56.1 ¶ 36.)
The PIP went into effect on May 5, 2008 (Def. L.R. 56.1 ¶ 49) for a ninety-day period,
setting a schedule of three follow-up meetings every thirty days. (Pl. L.R. 56.1 ¶ 14.) On June 2,
2008, Domroes and Pillay had a PIP follow-up meeting, at which time Domroes concluded that
“[Pillay] has achieved the required improvements.” (Id.) On August 1, 2008, the PIP expired (id.
¶ 15); however, the PIP required “sustained results” for continued employment. (Def. L.R. 56.1 ¶
46.)
During August 2008, Dayan received additional complaints from other Millard employees
about Pillay. (Def. L.R. 56.1 ¶ 60(a)–(h).)5 At about this same time, Pillay requested documentation
regarding Ramirez’s termination, and on August 21, 2008, Domroes forwarded Pillay the August 20,
2008 email between himself and Dayan concerning Ramirez. (Pl. L.R. 56.1 ¶ 24.) Pillay met with
Dayan and alleges that they had a heated argument during which Pillay protested Ramirez’s
termination. (Id. ¶¶ 25–26.) Pillay testified that he told Dayan that terminating Ramirez because
he had a disability and had filed a WC claim was illegal. (Id. ¶ 25.) Despite his protest, Pillay
alleges that Dayan ordered him to terminate Ramirez. (Id. ¶ 26.)
Millard, on the other hand, disputes that Pillay ever objected to Ramirez’s termination. (Def.
L.R. 56.1 ¶ 56.) Domroes testified during his deposition:
5
Although made in August, some of the complaints were not documented until after Pillay
was fired on August 26, 2008. (Pl. L.R. 56.1 ¶ 29.)
8
I do not recall what stance Sam took. I know - - so I - - I remember we had some
conversations about whether to keep him or not, and then it was something that was - neither one of us were willing to make that call, you know, ‘What should we do in
this case? It’s come to our attention that he has some permanent disability that may
affect his ability to perform. He could be a safety risk to himself and others. And
what should we do?’ And I - - if - - and from seeing this email, I know Sam wasn’t
going to do anything without getting something in writing from Nick, and that’s why
I forwarded that.
(Def. L.R. 56.1, Ex. B, Domroes Dep. at 43–44.) Dayan disputed that a heated argument took place
with Pillay (Plf. L.R. 56.1 ¶ 27) and denied that Pillay objected to Ramirez’s being terminated. (Def.
L.R. 56.1 ¶ 57.) Dayan claimed that Pillay actually recommended that Ramirez be terminated along
with other employees who needed to be disciplined or terminated. (Id. ¶ 57.) In explaining its
rationale for firing Pillay, Dayan stated that because the PIP required “sustained results” for
continued employment and in light of the additional complaints concerning Pillay, Dayan
recommended that the Millard Executive Committee terminate Pillay’s employment. (Id. ¶¶ 61,
66–67.) The Executive Committee concurred with Dayan, and on August 26, 2008, Millard
terminated Pillay. (Id. ¶ 61.) Pillay was not given the reason for his termination at this time. (Pl.
L.R. 56.1 ¶ 28.)
Union Petition
Rumored for several months beforehand, on August 1, 2008, a union petition was circulated
at Millard’s Geneva facility. (Def. L.R. 56.1 ¶¶ 39, 41, 50.) In response to the union petition, Dayan
traveled to the Geneva facility to meet with management staff to prepare for the union campaign and
upcoming election. (Id.) Pillay’s termination occurred in the midst of this union election. (Pl. L.R.
56.1 ¶ 34.) All managers in place at the time of the union campaign were subsequently terminated.
(Def. Resp. to Pl. L.R. 56.1 ¶ 36.) Prior to the union campaign, on July 4, 2008, Millard terminated
Assistant GM Carlos Mamarian, and in December 2008, Millard fired Office Manager Peter
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Trinidad. (Id. ¶ 38.) Domroes testified during his deposition that he believed that he and Pillay
were made “scapegoats” for the union campaign. (Def. L.R. 56.1 ¶ 53.) Although Millard
terminated Domroes and Polerecky several months after firing Pillay, Domroes explained that
Pillay’s termination was accelerated because his name came up negatively and repeatedly, and he
was “associated in a bad light with a lot of the employees.” (Id.)
Post Termination
On September 15, 2008, Pillay sent Millard a demand letter requesting compensation for his
termination which, Pillay wrote, was premised on his protests against Ramirez’s termination. (Pl.
L.R. 56.1 ¶ 30.) On September 26, 2008, Millard responded to Pillay’s letter, writing that Pillay’s
termination was for “good, valid, and lawful reasons” and that “[a]t no time during Mr. Pillay’s
employment did Millard ever instruct Mr. Pillay to violate, disregard or contravene any federal or
state labor laws or any other laws, nor did Millard terminate Mr. Pillay’s employment because he
refused to violate any such laws.” (Pl. L.R. 56.1, Ex. 7.)
In December 2008, Ramirez and Pillay filed claims with the Equal Employment Opportunity
Commission (“EEOC”). (Pl. L.R. 56.1 ¶ 31, Ex. 8; Def. L.R. 56.1, Ex. U.) On January 16, 2009,
Millard responded to the charges that Ramirez lodged with the EEOC, denying that it “conducted
or committed unlawful discrimination on the basis of disability or in retaliation.” (Pl. L.R. 56.1, Ex.
8.) Millard further contended that Ramirez’s termination resulted from his unacceptable LMS
performance rating (i.e., 59 percent) during his tenure as a probationary employee. (Pl. L.R. 56.1,
Ex. 8.) On January 21, 2009 Millard responded to Pillay’s EEOC charge, stating that Pillay’s poor
performance as HR manager, taken together with his failure to improve that poor performance and
10
continued improper and unacceptable treatment of employees, resulted in his termination. (Pl. L.R.
56.1 ¶ 31, Def. L.R. 56.1, Ex. U.)
Following his termination from Millard, Pillay interviewed for positions with the Bartlett
Park District and Grohe America but was not offered employment at either. (Def. L.R. 56.1 ¶¶
69–70.) Sometime after he was denied a position with the Bartlett Park District or Grohe America,
Pillay sent Millard a “request for employment verification” from Reliance Data Corp. (a fictitious
company). (Id. ¶ 71.) Millard replied and provided incorrect dates of employment for Pillay, stating
that Pillay’s employment dates spanned from December 1, 2000 to August 25, 2008 (when Pillay
had in fact been hired on April 17, 2000). (Id. ¶ 71, Ex. 19.) Pillay never contacted the Bartlett Park
District or Grohe America to determine whether Millard provided accurate dates of his employment.
(Id. ¶¶ 71, 73.) Pillay is currently employed by Sears where he works in the HR department. (Id.
¶ 75.)
SUMMARY JUDGMENT STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (a).
To determine whether any genuine fact exists, the court must pierce the pleadings and assess the
proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part
of the record. Fed. R. Civ. P. 56(c) & advisory committee notes (1963 amend.) While the court
must construe all facts in a light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986), where a claim or defense is factually unsupported, it should be disposed
of on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S. Ct. 2548, 91 L.
11
Ed. 2d 265 (1986). The party seeking summary judgment bears the initial burden of proving there
is no genuine issue of material fact. Id. at 323. In response, the non-moving party cannot rest on
bare pleadings alone but must use evidentiary tools listed above to designate specific material facts
showing that there is a genuine issue for trial. Id.; Insolia v. Phillip Morris Inc., 216 F.3d 596, 598
(7th Cir. 2000). “Summary judgment is not appropriate ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.
2003) (quoting Anderson, 477 U.S. at 248)).
DISCUSSION
I.
Ramirez and Pillay’s Motion to Strike
Before delving into the merits of the parties’ motions, the court must address numerous
objections raised in Ramirez and Pillay’s motions to strike portions of Millard’s statement of
material facts submitted pursuant to Northern District of Illinois Local Rule 56.1. [Dkts. 90; 91; 92.]
Ramirez and Pillay first move to strike eight exhibits (Exs. L, M, N, O, P, T, V, and W) [Dkt.
90] attached to Millard’s statement of facts, arguing that these documents are inadmissible hearsay
for which the proper foundation has not been laid. These documents consist of complaints lodged
by Millard employees against Pillay. “Sworn testimony is not the only basis on which summary
judgment may be granted; rather, the court may consider any material that would be admissible or
usable at trial, including properly authenticated and admissible documents or exhibits.” Woods v.
City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000) (citations and quotations omitted). Although
Dayan refers to the substance that gave rise to these complaints in his affidavit submitted to the
EEOC in 2009 (Def. L.R. 56.1, Ex. K), he did not specifically authenticate these exhibits in his
12
EEOC affidavit. Millard also failed to submit an affidavit or any evidence authenticating Exhibits
L, M, N, O, and P (all of which concern anonymous complaints regarding Pillay) and, accordingly,
they will be stricken.6 See Fed. R. Civ. P. 56(c)(4); Fed. R. Evid. 901.
Exhibits T, V, and W are acknowledged complaints either sent to or requested by Dayan
concerning Pillay. Specifically, Exhibits T and W are signed handwritten complaints; Exhibit V is
an email sent to Dayan. Although Millard failed to raise this argument, after reviewing Dayan’s
deposition transcript, this court finds that his testimony authenticates these exhibits. (See Def. L.R.
56.1, Ex. I.) Ramirez and Pillay further argue that these exhibits and Dayan’s 2009 EEOC affidavit
[see Dkt. 91] that references these exhibits should be struck as they constitute inadmissible hearsay.
Millard, however, offers the statements for the non-hearsay purpose of proving that complaints were
made, corroborating Millard’s position that it terminated Pillay as a result of receiving complaints.
See Pannizi v. City of Chicago Bd. of Educ., No. 07 C 846, 2007 WL 4233755, at *5 (N.D. Ill.
Nov. 19, 2007) (statements and letters were admissible at summary judgment for non-hearsay
purpose of showing that complaints about the plaintiff were made to school officials). Accordingly,
Exhibits T, V, W, and Dayan’s 2009 EEOC affidavit will not be struck.
Ramirez and Pillay next move to strike the affidavit of Rachelle O’Dell. [Dkt. 91]. They
claim that Millard failed to identify O’Dell in its initial Federal Rule of Civil Procedure 26
disclosures, and that her affidavit contains hearsay. Rule 26(a) provides that “a party must . . .
provide to the other parties . . . the name . . . of each individual likely to have discoverable
information – along with the subjects of that information[.]” Fed. R. Civ. P. 26(a)(1)(A)(I). Rule
6
That Millard failed to authenticate these documents for purposes of summary judgment does
not mean that they will not be admitted as evidence at trial.
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26(e) further imposes a duty to supplement Rule 26(a) disclosures “in a timely manner if the party
learns that in some material respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to the other parties during
the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A) (emphasis added). Rule 37 sets
forth sanctions for failing to comply with the rule, stating “[i]f a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion.” Fed. R. Civ. P. 37(c)(1). As Millard notes, O’Dell had
been repeatedly identified by both sides throughout discovery, in deposition testimony, and in
Pillay’s answers to interrogatories. As both parties had identified O’Dell as a potential witness
during discovery, the court declines to strike her affidavit for non-compliance with Rule 26. See
Fed. R. Civ. P. 26(e)(1)(A).
Ramirez and Pillay also move to strike the following portion of
paragraph six of O’Dell’s affidavit based on hearsay: “Millard’s [WC] counsel was able to confirm
Mr. Ramirez did, in fact, have an impairment rating assigned by the Illinois Industrial Commission.”
Millard did not respond to this argument, and this portion of O’Dell’s affidavit will be struck as
hearsay.
Ramirez and Pillay last request that the court strike that part of Millard’s statement of facts
that does not consist of short numbered paragraphs, and contains legal arguments in violation of
Local Rule 56.1. [Dkt. 92.] Having considered the specific paragraphs that Ramirez and Pillay
argue violate this rule, the court denies their motion to strike on this basis. To the extent that
Millard’s statement of facts contains improper legal conclusions, the court will disregard them.
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II.
Ramirez’s ADA Discrimination Claim
Ramirez claims that Millard violated the ADA by terminating his employment based on a
perceived disability. “The ADA prohibits an employer from discriminating against a qualified
individual with a disability.” Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1115 (7th Cir. 2001)
(quotations omitted). “Congress enacted the ADA ‘against a backdrop of pervasive unequal
treatment . . . including systematic deprivations of fundamental rights’ that people with disabilities
were forced to endure.” Dickerson v. Bd. of Trs. of Comm. Coll. Dist. No. 522, 657 F.3d 595, 600
(7th Cir. 2011) (quoting Tennessee v. Lane, 541 U.S. 509, 524, 124 S. Ct. 1978, 158 L. Ed. 2d 820
(2004)). To establish disability discrimination in order to defeat a motion for summary judgment,
a defendant must prove that there is no genuine issue of material fact and the plaintiff must prove
that “(1) [he] is disabled within the meaning of the ADA, (2) [he] is qualified to perform the
essential functions of the job, either with or without a reasonable accommodation, and (3) [he]
suffered from an adverse employment action because of his disability.” Hoppe v. Lewis Univ., No.
11-3358, 2012 WL 3764717, at *4 (7th Cir. Aug. 31, 2012). A plaintiff can establish disability
discrimination through the direct method or indirect method of proof. Dickerson, 657 F.3d at 601.
Direct Method of Proof
Under the direct method, a plaintiff can rely on direct or circumstantial evidence to meet his
burden. Dickerson, 657 F.3d at 601. “Direct evidence requires an admission by the decision maker
that his or her actions were based upon the prohibited animus.” Id. “A decisionmaker is the person
responsible for the contested decision.” Rogers v. City of Chicago, 320 F.3d 748, 754 (7th Cir.
2003) (quotations omitted). “The most common example of direct evidence is a statement by the
decision-maker that betrays a discriminatory intent.” Walker v. Bd. of Regents of Univ. of Wis. Sys.,
15
410 F.3d 387, 394 n.7 (7th Cir. 2005). A plaintiff can also rely on circumstantial evidence to survive
summary judgment, namely, “(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 better treatment; and (4) evidence
that the employer offered a pretextual reason for an adverse employment action.” Dickerson, 657
F.3d at 601. Using circumstantial evidence, a plaintiff can present “a convincing mosaic . . . that
would allow a jury to infer intentional discrimination by the decisionmaker.” Silverman v. Bd. of
Educ. of the City of Chicago, 637 F.3d 729, 734 (7th Cir. 2011) (quotations omitted).
Ramirez proceeds under the direct method of proof relying on the August 20, 2008 email
exchange between Domroes and Dayan sent the day before Millard terminated Ramirez, in which
Domroes stated that Ramirez “was rated 17.5% perm disability” to which Dayan responded, “We
have all of this documented right? . . . Let’s get him out asap.” (Pl. L.R. 56.1 ¶ 7.) Dayan, as head
of human resources for Millard, was the ultimate decision maker with regard to terminating Millard
employees with less than two years of service (i.e., Ramirez). (Def. L.R. 56.1 ¶ 58.) Dayan’s
response to Domroes’ email is direct evidence that Millard terminated Ramirez because of a
perceived notion that he had a disability, conduct which the ADA specifically proscribes. Domroes
also corroborated this notion:
So my question basically to Nick [Dayan] was giving him the facts, just saying that,
hey, this gentleman has come here with some physical limitations, he’s a new hire,
he’s still on probation, you know, he’s a probationary employee. So my
understanding under Illinois law, that, you know, you can be let go for any reason
whatsoever. And the second email was from Nick telling me to - - instructing me to
let him go.
(Def. L.R. 56.1, Ex. B, Domroes Dep. at 27–28.)
16
Domroes’ testimony, at a minimum, evidences a discriminatory intent. Namely, Dayan and
Domroes’ email conversation occurred one day before Millard terminated Ramirez. In addition to
this suspicious timing, Domroes further expounded on his belief that Ramirez’s prior injury may
have precluded him from working at Millard’s warehouse, and ultimately precipitated his
termination. Specifically, Domroes testified:
So, you know, to operate a piece of equipment, you need a skill set with, you know,
a fully functioning - - I mean, if you’re limited in any capacity, and I’m not a doctor,
I don’t know what 17-and-a-half percent means. But if there’s a potential there that
he can’t steer the forklift properly or brake properly, that he can’t manage that, that
is a potential risk to other employees. Lifting requirements, I believe it was at least
25 pounds, if not up to 50 pounds, that they’re required to lift, so that could be a
potential if he’s - - he could injure himself. If he was favoring one arm or one leg,
he might put undue duress on another part of the body and then potentially risk
injuring himself. So I believe that the thought process behind that was to avoid a
potential workers’ comp claim and injury to himself and/or others.
(Def. L.R. 56.1, Ex. B, Domroes Dep. at 27–28.) With regard to the decision to terminate Ramirez,
Domroes explained that “we’ve had terminations for performance and - - but in this case, this
wasn’t really performance related directly, it was about his - - his ability to do the job and his
injury, previous injury.” (Id. at 41.) Thus, the documentary and testimonial evidence raises
sufficient factual questions from which a reasonable jury could find that Millard had a
discriminatory motive in terminating Ramirez. Millard’s motion for partial summary judgment
with respect to count I is thus denied.7
7
Unlike the indirect burden shifting approach, once a plaintiff makes a showing of
discrimination using the direct method in response to a summary judgment motion, the employer is not
given the opportunity to rebut the discriminatory reason. See Silverman, 637 F.3d at 734 n.3 (“Once a
plaintiff produces such evidence [under the direct method], the defendant’s summary judgment motion
necessarily must fail, in contrast to the burden-shifting approach of the indirect, McDonnell Douglas
method.”).
17
III.
Pillay’s ADA Retaliation Claim
Pillay claims that Millard violated the ADA by terminating Pillay’s employment after he
protested Ramirez’s termination. The ADA states that “[n]o person shall discriminate against any
individual because such individual has opposed any act or practice made unlawful by this chapter
or because such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Similar to
establishing an ADA discrimination claim, a plaintiff bringing an ADA retaliation claim may rely
on the direct or indirect method of proof. Dickerson, 657 F.3d at 601.
A.
Direct Method of Proof
To establish unlawful retaliation under the direct method, a plaintiff must present evidence
showing “(1) a statutorily protected activity; (2) an adverse action; and (3) a causal connection
between the two.” Squibb v. Mem. Med. Ctr., 497 F.3d 775, 786 (7th Cir. 2007) (quotations
omitted). Pillay argues that he has provided direct evidence of retaliation.
i)
Whether Pillay Engaged in A Statutorily Protected Activity
Pillay argues that he engaged in statutorily protected activity by protesting against
Ramirez’s termination. “[A]n informal complaint may constitute protected activity for purposes
of retaliation claims.” Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). The parties
disagree about whether Pillay protested Ramirez’s termination. Pillay argues that after hearing
about Millard’s decision to terminate Ramirez he requested documentation at which time Domroes
forwarded Pillay his August 20, 2008 email correspondence with Dayan on this subject. (Pl. L.R.
56.1 ¶ 24.) Pillay testified that he then confronted Dayan protesting Ramirez’s termination was
premised on an illegal motive. (Id. ¶¶ 25–26.) Millard denies that Pillay argued against Ramirez’s
18
termination and further argues that Pillay advocated for Ramirez’s termination. (Def. L.R. 56.1 ¶
56.) Although the parties dispute that this conversation took place, sufficient questions for the trier
of fact exist as to whether Pillay engaged in a statutorily protected activity by protesting Ramirez’s
termination. See, e.g., Payne, 337 F.3d at 773 (“Where the material facts specifically averred by
one party contradict the facts averred by a party moving for summary judgment, the motion must
be denied.”); see also Paz v. Wauconda Healthcare & Rehab. Ctr., LLC, 464 F.3d 659, 664–65 (7th
Cir. 2006) (“We have long held that a plaintiff may defeat summary judgment with his or her own
deposition.”).
ii)
Whether A Causal Connection Exists Between Pillay’s Termination and
Protest
The parties do not dispute that Pillay satisfied the second prong under the direct method
(i.e., he suffered an adverse action) after Millard terminated his employment. Pillay and Millard,
however, dispute the last prong, that Pillay’s protesting Ramirez’s firing triggered his termination.
Pillay must demonstrate that his complaint was a “substantial or motivating factor” in Millard’s
decision to fire him. Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 675 (7th Cir.
2011) (quotations omitted). Although Pillay claims that the timing of his termination (which
occurred less than one week after he protested Ramirez’s firing) is indicative of retaliation,
“suspicious timing alone is almost always insufficient to survive summary judgment.” Id. at 675.
In addition to the suspicious timing of his termination, Pillay points to Domroes’s
forwarding Pillay the August 20, 2008 email correspondence between Dayan and Domroes. Pillay
contends that this email precipitated his argument with Dayan about Ramirez’s termination.
Domroes testified that he forwarded the email he received from Dayan approving Ramirez’s
termination to Pillay because “Sam [Pillay] wasn’t going to do anything without getting something
19
in writing from Nick [Dayan].” (Def. L.R. 56.1, Ex. B, Domroes Dep. at 43–44.) Domroes,
however, does not corroborate Pillay’s story that he protested against Ramirez’s termination and
could not recall whether Pillay opposed firing Ramirez. Pillay focuses on the lack of written
documentation evidencing Millard’s reasons for firing him; however, he does not offer any
additional evidence linking his termination with his protest. Accordingly, Pillay fails to show by
direct evidence that his protest played a “substantial or motivating factor” in Millard’s ultimate
decision to end his employment.
B.
Indirect Method of Proof
A plaintiff may also prove his case using the indirect method by employing the burdenshifting test set out in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 804 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973). Tyler v. Ispat Inland Inc., 245 F.3d 969, 972 (7th Cir. 2001). The
Seventh Circuit has elucidated on this burden-shifting test, explaining:
Under the McDonnell Douglas method of proof, the plaintiff bears the initial burden
of establishing a prima facie case of discrimination. The burden of production then
shifts to the employer to articulate a legitimate, nondiscriminatory reason for the
employment action. Finally, the burden shifts back to the plaintiff to prove that the
employer’s articulated reason for the employment action was a pretext for
discrimination and that the decision was in fact motivated by an unlawful factor.
Id. (citation omitted). In initially making his retaliation case under the indirect method of proof,
a plaintiff must demonstrate “(1) that [he] engaged in protected activity; (2) that [he] was subject
to an adverse employment action; (3) that [he] was performing her job satisfactorily; and (4) that
no similarly situated employee who did not engage in protected activity suffered an adverse
employment action.” Squibb, 497 F.3d at 788 (quotations omitted).
20
i)
Whether Pillay Was Meeting Millard’s Legitimate Employment
Expectations
As noted above, Pillay has presented sufficient facts at this point to allow a reasonable trier
of fact to find that he satisfied the first two elements of the indirect method (i.e., Millard ended
Pillay’s employment as a result of his protesting Ramirez’s termination). Pillay must also establish
that he was performing his job satisfactorily and that no other similarly situated employees were
terminated at the time. Pillay worked at Millard for more than eight years before he was fired in
August 2008. During that time, Pillay received good performance reviews in addition to pay raises
and bonuses. (Pl. L.R. 56.1 ¶ 11.) Still, “when a district court evaluates the question of whether
an employee was meeting an employer’s legitimate employment expectations, the issue is not the
employee’s past performance, but whether the employee was performing well at the time of [his]
termination.” Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002) (emphasis added)
(quotations omitted). In May 2008, Millard placed Pillay on a PIP to remedy areas of deficiencies
identified by complaints received from other Millard employees. (Def. L.R. 56.1 ¶¶ 45–46.) On
June 20, 2008, Domroes concluded that Pillay had “achieved the required improvements.” (Pl. L.R.
56.1 ¶ 14.) In August 2008, Pillay’s PIP expired. (Id. ¶ 15.) Millard contends that the PIP
contemplated “sustained results” with which Pillay failed to comply. Still, Pillay received positive
feedback during the PIP and, as a result, the plan expired on schedule. Pillay has thus presented
sufficient facts showing that he was satisfactorily performing his job in August 2008.
ii)
Whether Other Similarly Situated Employees Were Treated More
Favorably
To make a prima facie case using the indirect method, Pillay must last show that similarly
situated Millard employees received more favorable treatment. “[T]he similarly situated inquiry
21
is a flexible one that considers all relevant factors, the number of which depends on the context of
the case.” Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007) (quotations omitted).
An employee must show a “substantial similarity” in comparing himself to the better treated
employee. Id. “When the same supervisor treats an otherwise equivalent employee better, one can
often reasonably infer that an unlawful animus was at play.” Coleman v. Donohoe, 667 F.3d 835,
847 (7th Cir. 2012).
Dayan, as Senior Vice President of Human Resources, had the power to discipline Millard
employees who served in a managerial role and to recommend terminations to Millard’s Executive
Committee (of which he was also a member). (Def. L.R. 56.1 ¶ 58.) Other Millard employees who
served in a managerial role, including Domroes and Mike Polerecky received employee complaints,
but Dayan did not place them on a PIP at the same time as Pillay. (Def. L.R. 56.1 ¶ 42; Pl. L.R.
56.1 ¶ 36.) Although Millard argues that it subsequently terminated all the managers in place at
the time of the union campaign, Pillay was the only manager fired in August 2008. Millard
terminated Polerecky in March 2009, and fired Domroes in May 2009. (Def. Resp. to Pl. L.R. 56.1
¶ 38; Def. L.R. 56.1, Ex. B, Domroes Dep. at 12.) Domroes and Polerecky were similarly situated
to Pillay in that they were Millard managerial employees. Although Pillay reported to Domroes,
Dayan was the ultimate decision maker in that he recommended terminations to the Executive
Committee. Pillay has thus offered sufficient facts showing that similarly situated employees who
had been the subject of prior complaints and served in a managerial role were treated more
favorably in that Pillay was the first of these employees to be fired. See Coleman, 667 F.3d at
846–47 (“Whether a comparator is similarly situated is usually a question for the fact-finder, and
22
summary judgment is appropriate only when no reasonable fact-finder could find that plaintiffs
have met their burden on the issue.”) (quotations omitted).
iii)
Whether Millard Had Legitimate Non-Discriminatory Reasons for
Terminating Pillay
Millard points to numerous facts which tend to show that Pillay’s termination was the result
of continued poor work performance, not because he protested Ramirez’s termination. Having
received complaints about Pillay from Millard employees, in May 2008, Dayan placed Pillay on
a three-month PIP. (Def. L.R. 56.1 ¶¶ 37, 40, 45–46.) Although Pillay completed the PIP by
August 2008, his continued employment was dependent on maintaining “sustained results.” (Id.
¶ 46.) Subsequently, Dayan received numerous complaints about Pillay. (Id. ¶ 60.) These
complaints, according to Millard, in connection with the union campaign at Millard’s Geneva
facility resulted in Pillay’s termination. (Id. ¶¶ 53, 61, 66–67.) Millard also argues that other high
level employees, including Domroes, ultimately were let go as the result of the union campaign
over the course of the next nine months. (Def. Resp. to Pl. L.R. 56.1 ¶¶ 36, 38; Def. L.R. 56.1, Ex.
B, Domroes Dep. at 12.) Domroes further testified that he believed Pillay’s termination was also
the result of the union campaign, and that they were both “scapegoats.” (Def. L.R. 56.1 ¶ 53.)
These facts evidence a legitimate non-discriminatory reason for Millard to terminate Pillay.
iv)
Whether Pillay’s Termination Was Pretextual
To survive summary judgment, Pillay must demonstrate that Millard’s decision to terminate
him was pretextual. “Pretext involves more than just faulty reasoning or mistaken judgment on the
part of the employer; it is [a] lie, specifically a phony reason for some actions.” Argyropoulos v.
City of Alton, 539 F.3d 724, 736 (7th Cir. 2008) (quotations omitted). Pillay disputes the accuracy
of the complaints received in August 2008, and argues that they were an after-the-fact Millard
23
concoction so as to provide cover for themselves.
Pillay substantiates this argument by
highlighting the fact that some of these complaints were not documented until after Millard
terminated him. Pillay also points to the lack of documentation created contemporaneously with
his termination. Pillay argues that the union campaign did not trigger his termination, noting that
other employees such as Domroes did not lose their jobs until several months after Pillay. (Def.
L.R. 56.1 ¶ 53.) That Pillay was the only Millard manager working at the Geneva facility
terminated in August 2008 bolsters his argument that his termination resulted not from employee
complaints or the pending union campaign but, rather, was the result of his protesting Ramirez’s
termination. In addition, the short time period between which Pillay received Dayan and Domroes’
August 20, 2008 email correspondence and when he was fired (i.e., five days) raises questions
about why Millard ultimately decided to terminate Pillay. Namely, a question of fact exists about
whether Millard terminated Pillay because he protested Ramirez’s termination or whether that
decision was the result of Pillay’s poor work performance. See, e.g., Payne, 337 F.3d at 770 (“We
must look therefore at the evidence as a jury might, construing the record in the light most
favorable to the nonmovant and avoiding the temptation to decide which party’s version of the facts
is more likely true.”) A reasonable trier of fact could conclude that the union campaign in
connection with Pillay’s prior poor work performance was the perfect storm of events which
triggered his termination. Still, the trier of fact could reasonably conclude that Millard’s proffered
reasons were pretextual and that the real reason for Pillay’s termination was the result of his
disputing Ramirez’s termination. Millard’s motion for summary judgment with respect to count
II is thus denied.
24
IV.
Pillay’s Retaliatory Discharge Claim
Pillay next claims that Millard is liable for retaliatory discharge under Illinois law. “The
tort of retaliatory discharge comprises three distinct features: first, an employee must establish that
[he] has been discharged; second, [he] must demonstrate that [his] discharge was in retaliation for
[his] activities; and finally, [he] must show that the discharge violates a clear mandate of public
policy.” Belline v. K-Mart Corp., 940 F.2d 184, 186 (7th Cir. 1991). “Retaliatory discharge cases
are generally allowed when an employee is discharged for: (1) filing a worker’s compensation
claim; or (2) reporting illegal or improper conduct.” Mackie v. Vaughan Chapter-Paralyzed
Veterans of Am., Inc., 820 N.E.2d 1042, 1044–45, 354 Ill. App. 3d 731, 289 Ill. Dec. 967 (Ill. App.
Ct. 2004).
A)
Exercising Workers’ Compensation Rights
“The Illinois Supreme Court has recognized a common-law cause of action for retaliatory
discharge where an employee is terminated because of his actual or anticipated8 exercise of
workers’ compensation rights.” Beatty v. Olin Corp., No. 11-2853, 2012 WL 3854855, at *3 (7th
Cir. Sept. 6, 2012). In addition, in Pietruszynski v. McClier Corporation, Architects & Engineers,
Inc., 788 N.E.2d 82, 338 Ill. App. 3d 58, 272 Ill. Dec. 778 (Ill. App. Ct. 2003), the Illinois
Appellate Court held that the plaintiffs could recover for retaliatory discharge where they had been
8
Anticipated claims presuppose that an injury giving rise to a workers’ compensation has
already occurred. See Williams v. Shell Oil Co., 18 F.3d 396, 401 (7th Cir. 1994) (“The [Worker’s
Compensation] Act does not apply to future injuries or even anticipated injuries.”); Wiesman v. Kienstra,
Inc., 604 N.E.2d 1126, 1129, 237 Ill. App. 3d 721, 178 Ill. Dec. 603 (Ill. App. Ct.1992) (holding that the
plaintiff did not have a retaliatory discharge claim, as “[t]he [Workers’ Compensation] Act does not apply
to anticipated future injuries, and an employee’s rights under the Act accrue only at such time when a
work-related injury occurs.”).
25
terminated as a result of testifying in a coworker’s WC hearing noting that such participation served
public policy and promoted the interests of the Workers’ Compensation Act . Id. at 87.
Pillay cannot support his retaliatory discharge claim because he cannot demonstrate any
activity in connection with Ramirez’s actual or anticipated exercise of his WC rights. Unlike in
Pietruszynski, where the plaintiffs testified on the claimant’s behalf, here Pillay did nothing in
connection with an actual or potential WC claim that Ramirez could have pursued. Ramirez’s
Home Depot claim had concluded by the time he started working at Millard. Millard had nothing
to do with that claim. Ramirez had suffered no injury at Millard that would have created a potential
WC claim. There is no authority in Illinois extending the tort of retaliatory discharge to protect an
employee who tells his employer that it should not fire someone who had filed a WC claim in the
past but who had no connection to that earlier proceeding. See, e.g., Pietruszynski, 788 N.E.2d at
86 (stating that “[The Illinois Supreme Court] has continued to stress the narrow scope of the tort
of retaliatory discharge”). Millard is entitled to judgment on this claim.
B)
Other Illegal and Improper Conduct
Pillay also argues that he has a retaliatory discharge claim premised on illegal and improper
conduct, namely that Pillay protested Ramirez’s termination because of a perceived disability.
Protesting against Ramirez’s termination, however, is the same conduct which Pillay uses to
substantiate his ADA retaliation claim. In Stebbings v. University of Chicago, 726 N.E.2d 1136,
1141, 312 Ill. App. 3d 360, 244 Ill. Dec. 825 (Ill. App. Ct. 2000), the Illinois Appellate Court
identified the situation where a plaintiff brings a retaliatory discharge claim yet has an adequate
alternative remedy, holding:
It is not necessary or a plaintiff attempting to state a claim for retaliatory discharge
to cite to a statute making his or her firing illegal. If that were the case, the tort of
26
retaliatory discharge would be superfluous, for the plaintiff would be able to proceed
under the statute. In fact, a court might be obligated to dismiss the claim in such a
situation, for one of the factors that a court considers in deciding whether to allow
a retaliatory discharge claim is the existence of an adequate alternative remedy.
Id. at 1141. Indeed, Pillay’s ADA retaliation claim reaffirms that he has an adequate alternative
remedy as the ADA provides him with a private cause of action. Cf. Hamros v. Bethany Homes &
Methodist Hosp. of Chicago, 894 F. Supp. 1176, 1179 (N.D. Ill. 1995) (concluding that the “Illinois
Supreme Court would not expand the common law tort of retaliatory discharge to include claims
based on the exercise of rights under the [Family and Medical Leave Act”]). Pillay cannot use the
conduct which substantiates his ADA retaliation claim, reporting disability discrimination, to bring
a claim for retaliatory discharge. Millard is entitled to summary judgment on this count.
V.
Pillay’s Libel/Slander Claim
Pillay next claims that Millard is liable for defamation under Illinois law because it provided
false employment dates for Pillay. Under Illinois law, “[t]o prove a claim of defamation, a plaintiff
must show that the defendant made a false statement concerning plaintiff, that there was an
unprivileged publication of the defamatory statement to a third party by defendant, and that plaintiff
was damaged.” Gibson v. Phillip Morris, Inc., 685 N.E.2d 638, 643, 292 Ill. App. 3d 267, 226 Ill.
Dec. 383 (Ill. App. Ct. 1997). The question how the incorrect (or false) dates of employment might
have damaged Pillay aside, Pillay fails to demonstrate that Millard communicated false employment
to dates to anyone but himself. Pillay surmises that Millard must have communicated incorrect dates
of employment to prospective employers, relying on the incorrect information that Millard sent to
the fictitious company Pillay created requesting such information. Still, “[t]o show a publication,
it must be established that the allegedly slanderous remarks were communicated to someone other
27
than the plaintiff.” Gibson, 685 N.E.2d at 643. Pillay offered no evidence showing that Millard
made such a communication with a third party, and thus cannot survive summary judgment.
VI.
Pillay’s Tortious Interference with Contract Claim
Pillay last claims that Millard is liable for tortious interference with contract based on
supplying incorrect employment dates to prospective employers. Because Pillay contends that he
was a job applicant seeking employment, his claim actually lies in tortious interference with a
prospective economic advantage. Fellhauer v. City of Geneva, 568 N.E.2d 870, 877, 142 Ill.2d 495,
154 Ill. Dec. 649 (1991). Under Illinois law, “[a] plaintiff claiming intentional interference with a
prospective economic advantage must establish (1) a reasonable expectation of entering into a valid
business relationship, (2) the defendant’s knowledge of the expectation, (3) purposeful interference
by the defendant that prevents the plaintiff’s legitimate expectancy from ripening into a valid
business relationship, and (4) damage to the plaintiff resulting from the defendant’s interference.”
Atanus v. Am. Airlines, Inc., 932 N.E.2d 1044, 1048, 403 Ill. App. 3d 549, 342 Ill. Dec. 583 (Ill.
App. Ct. 2010). Again to survive summary judgment, Pillay must offer some proof that Millard
actually communicated incorrect information to prospective employers. Because Pillay has failed
to do so and merely relies on innuendo, he has failed to meet his burden. Accordingly, summary
judgment is granted as to count VI.
CONCLUSION
Millard’s motion for partial summary judgment [Dkt. 82] is granted in part and denied in
part. The motion is denied with respect to counts I and II and granted with respect to counts IV,
V, and VI. Ramirez and Pillay’s motion to strike hearsay documents [Dkt. 90] is granted in part
and denied in part. Ramirez and Pillay’s motion to strike the affidavits of O’Dell and Dayan
28
[Dkt. 91] is granted in part and denied in part. Ramirez and Pillay’s motion to strike portions of
Millard’s statement of facts [Dkt. 92] is denied.
This case will be called for a status hearing on October 16, 2012 at 8:30 a.m. The parties
are directed to engage in a sincere effort to settle this case and to report the potential for
settlement at the next status hearing and whether referral to the magistrate judge for a settlement
conference would be helpful.
Dated: September 28, 2012
Enter: _____________________________
JOAN HUMPHREY LEFKOW
United States District Judge
29
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