Tank v. Deutsche Telekom AG et al

Filing 149

MEMORANDUM Opinion and Order signed by the Honorable Ronald A. Guzman on 4/19/2013. Mailed notice (cjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAJESH TANK,
Plaintiff,
v.

DEUTSCHE TELEKOM, AG,
T-MOBILE INTERNATIONAL, AG
and T-MOBILE USA, INC.,
Defendants.

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11 C 4619
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
Rajesh Tank claims Deutsche Telekom AG, T-Mobile International AG and T-Mobile
USA discriminated against him with respect to his termination and pay. He also alleges various
state law claims including defamation, and claims under the Illinois Wage Payment and
Collection Act and the Illinois Personnel Records Review Act. T-Mobile USA (“T-Mobile”)
moves for summary judgment, which, for the reasons stated below, the Court grants.
Local Rule 56.1
The Court notes at the outset that Tank’s additional statements of fact do not conform to
the parameters set forth in the local rules. Contrary to Local Rule 56.1(b)(3)(C), which requires
short numbered paragraphs, each of Tank’s additional statements of fact is anywhere from two to
ten sentences long with most being five or more sentences. The local rules contain a limit on the
number of statements of fact for a reason. As noted in the Committee Comment for Local Rule
56.1:
Local Rule 56.1 is revised to set forth limits on the number of statements of fact
that may be offered in connection with a summary judgment motion. The judges
of this Court have observed that parties frequently include in their LR56.1
statements of facts that are unnecessary to the motion and/or are disputed. The
judges' observation is that in the vast majority of cases, a limit of 80 asserted
statements of fact and 40 assertions of additional statements of fact will be more
than sufficient to determine whether the case is appropriate for summary
judgment. The number of statements of fact has been set in light of the
requirement of section (a)(3), which requires that only “material facts” be set
down. A party may seek leave to file more asserted statements of fact or
additional fact, upon a showing that the complexity of the case requires a

relaxation of the 80 or 40 statement limit.
Local Rule 56.1 (emphasis added). Tank’s additional statements of fact violate not only the
letter but also the spirit of Local Rule 56.1. Tank disregards the local rules at his own peril. The
Court only briefly outlines the facts below and discusses relevant facts as necessary in the text of
its analysis.
Facts
T-Mobile is a corporation engaged in the business of providing wireless telephone
service to customers located throughout the United States, Puerto Rico and the U.S. Virgin
Islands. (Pl.’s Resp. Def.’s Stmt. Fact., Dkt. # 115, ¶ 5.) Tank worked at T-Mobile as an Area
Director of Engineering Operations, Areas Director of Southern California and eventually, by
2006, Vice- President of the Central Region. (Pl.’s Resp. Def.’s Stmt. Fact, Dkt. # 115, ¶ 3.)
Tank was terminated after, T-Mobile contends, an internal investigation concluded that Tank had
engaged in various acts of misconduct. Neville Ray, then Senior Vice-President of Network
Engineering, terminated Tank on August 4, 2010, though Ray told Tank that T-Mobile would
inform Tank’s colleagues that he had resigned. (Tank Dep., Pl.’s Ex. 1, at 278:9-279:11.)
Analysis
A.

Pay Discrimination (Count 1)

Tank contends that he was paid a lower base salary than comparable white employees in
violation of § 1981. Walker v. Abbott Labs., 340 F.3d 471, 475–78 (7th Cir. 2003) (finding that
§ 1981 protects at-will employees from discrimination in pay or promotion). Courts “employ
essentially the same analytical framework to employment discrimination cases whether they are
brought under . . . Title VII[ ] or § 1981.” Cerutti v. BASF Corp., 349 F.3d 1055, 1061 n.4 (7th
Cir. 2003). Tank does not point to any direct evidence of pay discrimination and appears to rely
on the indirect method of proof with respect to this claim. Under this method, a plaintiff has the
burden of establishing a prima facie case of discrimination by showing that he: (1) is a member
of a protected class; (2) met the employer's legitimate business expectations; (3) suffered an
adverse employment action; and that (4) similarly-situated employees outside of the protected
class were treated more favorably. Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir.
2012).
T-Mobile argues that Tank’s pay discrimination claim fails because he cannot point to
any similarly-situated white vice-presidents who were paid more than him. Tank contends that
he was paid a lower salary than David Gallacher, Jennifer Silveira and Bentley Alexander.
Employees need not be identical in all ways in order to be similarly situated. Caskey v.
Colgate–Palmolive Co., 535 F.3d 585, 592 (7th Cir. 2008). Generally, a plaintiff can meet his
burden by showing that the proposed co-worker: (1) dealt with the same supervisor, (2) was
subject to the same standards, and (3) engaged in substantially similar conduct such that the
employer would not have grounds for treating the plaintiff and the comparator differently.
2

Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012). These factors, however, are not a
“magic formula” and “the similarly-situated inquiry should not devolve into a mechanical,
‘one-to-one mapping between employees.’” Id. (citation omitted).
As to Silveira, who was a Vice-President of Engineering and Operations, Tank contends
based on working with her that “it did not appear to me she had an educational background in
Engineering” and that according to her LinkedIn profile, she does not have an engineering
degree or a Masters Degree in any field. (Tank Decl., Pl.’s Ex. 13, ¶ 68.) Neither his impression
of what degree she “appeared” to have nor a LinkedIn profile constitutes admissible evidence of
her educational background. Tank clearly lacks personal knowledge of Silveira’s education, see
Fed. R. Civ. P. 56(e) (requiring that affidavits filed in opposition to a summary judgment motion
be based on an affiant's “personal knowledge”), and the LinkedIn reference is hearsay that does
not fall within any recognized exception. Pace Am., Inc. v. Elixir Indus., 06 C 4661, 2009 WL
211953, at *7 n.7 (N.D. Ill. Jan. 27, 2009).
While Tank states that Silviera’s job “involved program management in the south region
and [she] accepted a position reporting to the corporate office in Bellevue performing similar
functions in 2008,” (Tank Decl., Pl.’s Ex. 13, ¶ 69), he does not discuss whether Silveira dealt
with the same supervisor, was subject to the same standards or engaged in substantially similar
conduct such that T-Mobile would not have had grounds for treating her and Tank differently.
The same is true with respect to David Gallacher and Bentley Alexander. Tank makes almost no
reference at all to their qualifications and backgrounds and does not address who their supervisor
was, what standards they were subject to, or whether they engaged in substantially similar
conduct as Tank.
While the Court acknowledges that no “magic formula” exists for ascertaining whether
employees are similarly situated, Tanks fails to point to any evidence from which the Court
could determine that Tank was similarly situated to these three employees. Therefore, the pay
discrimination claim is denied.
B.

Discriminatory Termination (Count 2)

Tank alleges that his termination was the result of discrimination on the basis of his race
and national origin under 42 U.S.C. § 1981. Race and national origin discrimination claims can
be established in one of two ways – either the direct or indirect method of proof. Lewis v. City of
Chi., 496 F.3d 645, 652 (7th Cir. 2007). Under the direct method, a plaintiff must produce either
direct or circumstantial evidence of discrimination. Mach v. Will Cnty. Sheriff, 580 F.3d 495,
499 (7th Cir. 2009). Direct evidence usually “requires an admission of discriminatory animus,”
while circumstantial evidence “establishes an employer's discriminatory motive through a longer
chain of inferences,” id., also referred to as a “convincing mosaic.” Silverman v. Bd. of Educ. of
City of Chi., 637 F.3d 729, 734 (7th Cir. 2011). According to the Seventh Circuit,
[c]ircumstantial evidence demonstrating intentional discrimination includes: “(1)
suspicious timing, ambiguous oral or written statements, or behavior toward or
3

comments directed at other employees in the protected group; (2) evidence,
whether or not rigorously statistical, that similarly situated employees outside the
protected class received systematically better treatment; and (3) evidence that the
employee was qualified for the job in question but was passed over in favor of a
person outside the protected class and the employer's reason is a pretext for
discrimination.”
Atanus v. Perry, 520 F.3d 662, 672 (7th Cir. 2008) (citation omitted). Tank does not refer to any
direct evidence of discrimination, but seeks to create a convincing mosaic of circumstantial
evidence to show discriminatory intent under the direct method.
First, he contends that Ray treated Tank worse than all other direct reports, citing his
additional statement of fact number 8, but because that fact concerns T-Mobile’s “core values”
and is wholly irrelevant to this assertion, it is disregarded. Tank next asserts that Ray mocked an
Indian accent in front of other T-Mobile managers. Again, Tank’s reference to his additional
statement of fact number 57, which does not mention any incident dealing with a mock Indian
accent, is irrelevant and will be disregarded. To the extent that Tank actually meant to refer to
paragraph 56 of his statement of additional facts, in which he states that a former employee,
Haider Syed, heard Ray mock an Indian accent in front of a T-Mobile Vice-President, the
citation is unpersuasive. Syed states that in approximately May or June 2007, Ray, upon hearing
that a T-Mobile meeting had occurred at a Moroccan restaurant, turned to Syed and said in an
Indian accent, “I heard there were four foot hookas there.” (Syed Aff., Pl.’s Ex. # 17, ¶ 25.) An
“isolated comment or ‘stray remark’ is typically insufficient to create an inference of
discrimination, but it may suffice if it (1) was made by the decision-maker, (2) around the time
of the decision, and (3) referred to the challenged employment action.” Mach, 580 F.3d at 499.
See also Olson v. N. FS, Inc., 387 F.3d 632, 635 (7th Cir. 2004) (“A statement can be direct
evidence of discriminatory intent where the statement is made around the time of and in
reference to the adverse employment action.”). While the comment was made by Ray, the
decisionmaker, it did not occur around the time of or refer to Tank’s termination, which occurred
in August 2010. Thus, the statement is insufficient to create an inference of discrimination.
Tank also notes that a T-Mobile manager made a comment that Tank’s region was “too
Indian,” and that John Mavers, Director of Human Resources for Engineering, made a comment
that an employee who made ethnic slurs probably had a reason to dislike Indians. (Pl.’s
Corrected Mem. Opp’n, Dkt. # 126-1, at 16.) Tank’s citation to his additional statement of fact
number 47 as to the first comment does not support the “too Indian” comment. Therefore, the
Court will not consider it. Moreover, according to Tank’s additional statement of fact on the
Mavers’ comment, Mavers “asked Tank whether managers in the Kansas City market had a
reason to resent or be hostile towards Indians.” (Def.’s Resp. Pl.’s Stmt. Add’l Fact, Dkt. # 134,
¶ 29.) Because Tank’s representation in his brief of the statement (i.e., “that an employee who
made ethnic slurs probably had a reason to dislike Indians”) is inaccurate, Mavers was not the
decisionmaker and the comment was not made at the time of or in reference to the termination
decision, the Court does not find them sufficient to create an inference of discrimination.

4

Tank also asserts that Ray’s treatment of him as a “second-class” vice-president provides
circumstantial evidence of discrimination. Specifically, Tank contends that Ray denied him
speaking opportunities at executive events and credit or recognition for projects that Tank
developed. Tank also states that Ray made himself inaccessible to Tank, implemented a 2008
“coaching” plan as to Tank with respect to his purported improper preference of three minority
contractors, swore at Tank when Tank suggested the preference allegations were false and
ignored positive survey results from colleagues about Tank’s performance. (Def.’s Resp. Pl.’s
Stmt. Add’l Fact, Dkt. # 134, ¶¶ 14-20.) Even assuming these assertions are true, none of them
points directly to any discriminatory motive for Ray to have terminated Tank or denied him
opportunities. Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012)
(circumstantial evidence must “point[] directly to a discriminatory reason for the employer's
action”) (citation and internal quotation marks omitted). In order to conclude that race or
national origin discrimination was the basis for Ray’s conduct, one would be required to engage
in inference or presumption, which is not appropriate with direct evidence. Lim v. Trs. of Ind.
Univ., 297 F.3d 575, 580 (7th Cir. 2002) (direct evidence should “prove the particular fact in
question without reliance upon inference or presumption”) (citation and emphasis omitted).
Moreover, for the reasons discussed in the Retaliatory Termination section below, Tank
cannot show that T-Mobile’s reason for terminating him was pretextual. Therefore, for these
reasons, Tank’s claim of discriminatory termination fails.
C.

Retaliatory Termination (Count 3)

Tank also alleges that his termination was in retaliation for his engaging in protected
activity. Humphries v. CBOCS West, Inc., 474 F.3d 387, 403 (7th Cir. 2007) (“[A] plaintiff may
maintain a cause of action under section 1981, where the plaintiff has suffered retaliation for
advocating the rights of those protected under section 1981"). Specifically, Tank asserts that he
was retaliated against by individuals in human resources for complaining about purportedly
racist conduct and comments towards other employees.
Although a party may prove retaliation under either the direct or indirect methods of
proof, Coleman, 667 F.3d at 859, Tank proceeds only under the direct method of proof. To
establish retaliation under the direct method, Tank must show that: (1) he engaged in protected
activity; (2) T-Mobile took an adverse employment action against him; and (3) there was a
causal connection between his protected activity and the adverse employment action. Id.
T-Mobile contends that Tank’s retaliatory discrimination claim fails as a matter of law
for several reasons, the primary one being that Tank cannot show pretext. Argyropoulos v. City
of Alton, 539 F.3d 724, 736 n.6 (7th Cir. 2008) (“[A]n employee's failure to cast doubt on an
employer's nonretaliatory explanation will also doom a retaliation claim under the direct
method”). T-Mobile asserts that as a result of two unrelated complaints its Corporate
Investigations Department received about Tank, the department conducted an investigation and
found that Tank: (1) had allowed a contractor, Barry Sias, whom T-Mobile had ordered in 2008
be removed, to return to work for T-Mobile under an alias; (2) continued to show favoritism
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towards a certain employee; and (3) without obtaining prior approval, had donated over
$23,000.00 of T-Mobile’s funds to a charitable organization on whose board Tank sat, spent over
$11,000.00 of T-Mobile funds to hire a law firm to conduct research regarding raising Tank’s
profile, and spent $10,000.00 of T-Mobile funds to obtain credentials to attend the Republican
National Convention. (Def.’s Stmt. Fact, Dkt. # 85, ¶ 41.) Ray attests that he honestly believed
that the information provided to him in the investigation memoranda was true and correct.
(Def.’s Ex. H, Ray Decl., ¶ 9.)
“The focus of a pretext inquiry is whether the employer's stated reason was honest, not
whether it was accurate, wise, or well-considered.” Stewart v. Henderson, 207 F.3d 374, 378
(7th Cir. 2000). “Even if [an employer's] reason for [the employee's] discharge was foolish or
trivial or even baseless,” the reason is not pretextual if the employer honestly believes the reason
for the employment decision at issue. Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th
Cir. 2001) (citation and internal quotation marks omitted).
Tank first argues that Ray’s declaration in which he states that he honestly believed the
information in the investigation report should be stricken because in his deposition, Ray could
not state with certainty whether the investigation report (marked as deposition exhibit 64, which
is now Plaintiff’s summary judgment exhibit 44), was the document he reviewed prior to
terminating Tank. During his deposition, Ray stated that the exhibit was voluminous but that he
remembered “reviewing a summary document from the corporate investigations team, and this is
probably it, but I can’t confirm that.” (Ray Dep., Pl.’s Ex. 5, at 91:4.) Tank contends that the
statement in Ray’s declaration that he honestly believed the information provided to him in the
“investigation memoranda” contradicts his deposition testimony and should therefore be
disregarded. The Court disagrees. While Ray may not have been able to state at his deposition
that the document he was shown was the exact document he reviewed prior to terminating Tank,
he confirmed that he read a summary document from the corporate investigation team prior to
ending Tank’s employment. Ray’s statement in his declaration that he believed the information
provided to him by the corporate investigations unit does not contradict that testimony.
Tank also asserts in his motion to strike that Ray’s reference in his declaration to a 2008
corrective action plan for Tank as “discipline” contradicts his deposition testimony. But, during
his deposition, Ray merely indicated that he did not know if he would characterize the 2008 plan
as “discipline.” (Id. at 62) (emphasis added.) This difference does not constitute a contradiction.
Nor is it material to the issue of pretext whether Ray characterized the 2008 corrective action
plan as discipline. The relevant point is that in 2008, Tank was placed on a corrective action
plan in which “[t]here’s clearly a reference . . . to remove [certain T-Mobile contractors], and the
implication would clearly be that he would not bring them back.” (Id. at 76.) Tank admits that
one of the findings of the 2010 investigation that Ray reviewed prior to terminating Tank is that
Barry Sias, one of the 2008 removed contractors, came back to work at T-Mobile with Tank’s
permission and apparent approval. (Messinger Decl., Def.’s Ex. I3, 2010 Investigation Report,
at 7-8.)
While Tank’s brief and response to T-Mobile’s statements of fact contain a lengthy
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discussion about why the 2008 and 2010 investigation findings are inaccurate, he ultimately fails
to point to any record evidence in support of his assertion that Ray did not honestly believe the
findings in the report. Absent such evidence, Tank cannot prevail on his retaliation claim.
Therefore, T-Mobile is entitled to summary judgment on this claim. The Court therefore, will
not address T-Mobile’s remaining arguments regarding the retaliation claim.
D.

Defamation1

Tank also alleges that T-Mobile defamed him. “Statements are considered defamation
per se when the defamatory character of the statement so obviously injures the plaintiff's good
name or reputation that the plaintiff need not prove injury or damages.” Quinn v. Jewel Food
Stores, Inc., 658 N.E.2d 1225, 1231 (Ill. App. Ct. 1995). A statement is defamatory per se if its
harm is obvious and apparent on its face. Owen v. Carr, 497 N.E.2d 1145, 1147 (Ill. 1986). In
Illinois, a statement is defamatory per se if it falls under one of five categories: (1) words that
impute a person has committed a crime; (2) words that impute a person is infected with a
loathsome communicable disease; (3) words that impute a person is unable to perform or lacks
integrity in performing her or his employment duties; (4) words that impute a person lacks
ability or otherwise prejudices that person in her or his profession; and (5) words that impute a
person has engaged in adultery or fornication. Solaia Tech., LLC v. Specialty Pub. Co., 852
N.E.2d 825, 839 (Ill. 2006). “To prevail on a state law claim for defamation a plaintiff must
show that: (1) the defendant made a false statement about the plaintiff, (2) there was an
unprivileged publication of the defamatory statement to a third party by the defendant, and (3)
the plaintiff has suffered damages.” Smock v. Nolan, 361 F.3d 367, 372 (7th Cir. 2003).
Whether a statement is defamatory per se or is reasonably susceptible to an innocent
interpretation is a question of law for the court to decide. Bryson v. News Am. Publ’ns, Inc., 672
N.E.2d 1207, 1215 (Ill. 1996).
As to the first element of a defamation claim, the Court notes at the outset that neither
party identifies the actual statements that are purportedly defamatory. Setting forth only general
categories of allegedly defamatory statements necessarily requires rejection of the claim for
failure to meet the first element – that the defendant made a false statement about the plaintiff.
Nonetheless, the Court, using Tank’s Rule 56.1(b)(3)(C) Statement of Additional Facts (Dkt. #
120), has attempted to identify the actual statements Tank finds objectionable.
The first statement is Ray’s testimony that Mavers told him Tank had resigned and so
that is what he put in the company e-mail to employees regarding Tank’s departure. (Id. ¶ 45.)
According to Tank, however, “Mavers knew Tank had not resigned when T-Mobile employees

1

While Tank alleges that the Court has supplemental jurisdiction over the state law
claims (Compl., Dkt. # 1, ¶ 141), the Court notes that it also has diversity jurisdiction over the
state law claims. Thus, while normally declining to exercise jurisdiction over supplemental state
law claims when the federal claims have been resolved, the Court will consider the state law
claims based on diversity jurisdiction.
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and executives were notified by e-mail that Tank had resigned” and “Mavers knew sharing false
information related to individual's employment could have adverse effects on the individual's
career.” (Id.) From this, the Court construes the alleged false statement to be Ray’s e-mail to
other employees that Tank had resigned rather than was terminated. But, a statement that he
resigned neither states or implies an inability to perform or want of integrity in the performance
of his employment duties, nor does it impute that Tank lacks ability or otherwise prejudice him
in his profession. See, e.g., Proctor v. Bd. of Educ., Sch. Dist. 65, Evanston, Ill., 392 F. Supp. 2d
1026, 1032 (N.D. Ill. 2005) (statements by board president that reason for the plaintiff-teacher’s
transfer was “not just the skeleton matter . . . I do know, it was more than this event” and “had
nothing to do with No Child Left Behind, freedom of speech or any one incident” were not
defamatory per se). Thus, Ray’s statement that Tank resigned does not constitute defamation per
se.
Tank also points to the deposition testimony of Mary Crowl, a regional development
manager at T-Mobile (Crowl Dep. I, Pl.’s Ex. 7, at 5), who testified regarding Tank’s departure.
In response to a question as to “what did you hear as to why [Tank was terminated]” (id. at 44),
she stated “[m]ostly because of an affair with Angelique [Stephens, another T-Mobile
employee],” “[p]eople speculated that he was partial to certain vendors,” and “there was a
contractor working for us under an alias, and I heard from someone, I don’t know who, that it
might have been because of that.” (Id. at 44-45.) Tank also states that numerous then-current
and former T-Mobile employees and vendors informed him that they heard he had been
terminated for engaging in an extramarital affair with Stephens, embezzling, engaging in
kickbacks or for other illegal or improper conduct. (Def.’s Resp. Pl.’s Stmt. Add’l Fact, Dkt. #
134, ¶ 47.)
But Tank has not identified the speaker of any of the alleged statements; thus, he has not
pointed to any evidence demonstrating that T-Mobile made any false statements about him. As
noted by another court, “rumors bearing derogatory messages . . . are not defamatory unless
instigated by the defendant.” Luttrell v. O'Connor Chevrolet, Inc., No. 01 C 0979, 2002 WL
1263990, at *8 (N.D. Ill. June 5, 2002) (citation omitted). When asked who had defamed his
character, Tank responded that:
I think the manner in which the investigation, ultimately, the termination, which I
feel is discriminatory and retaliatory, in which that was done, led to a lot of
rumors and speculation within the organization that came out of the organization
at all levels, from staff all the way to the executive level, and permeated out into
the industry.
(Tank Dep., Pl.’s Ex. 1, at 366.) But Tank fails to point to any specific statement made by the
defendant that was defamatory.
Because Tank has not pointed to any specific competent evidence demonstrating that TMobile made a false statement about him, his defamation claim fails. Accordingly, the Court
grants T-Mobile’s motion for summary judgment as to this claim.
8

E.

Illinois Personnel Records Review Act

Tank next alleges that T-Mobile violated the Illinois Personnel Records Review Act, 820
Ill. Comp. Stat. 40/1 et seq. (“IPRRA”), when it failed to provide him or allow him to inspect his
personnel records despite his request. The IPRRA provides a private right of action for
employees who are denied access to personnel records or whose records are divulged without
written notice. 820 Ill. Comp. Stat. 40/12(c). However, the IPRRA provides that an individual
may file suit “where efforts to resolve the employee's complaint concerning such violation by
conference, conciliation or persuasion pursuant to subsection (b) have failed and the Department
has not commenced an action in circuit court to redress such violation.” Id. Subsection (b)
states as follows:
If an employee alleges that he or she has been denied his or her rights under this
Act, he or she may file a complaint with the Department of Labor. The
Department shall investigate the complaint and shall have authority to request the
issuance of a search warrant or subpoena to inspect the files of the employer, if
necessary. The Department shall attempt to resolve the complaint by conference,
conciliation, or persuasion. If the complaint is not so resolved and the
Department finds the employer has violated the Act, the Department may
commence an action in the circuit court to enforce the provisions of this Act
including an action to compel compliance. The circuit court for the county in
which the complainant resides, in which the complainant is employed, or in which
the personnel record is maintained shall have jurisdiction in such actions.
820 Ill. Comp. Stat. 40/12(b).
T-Mobile contends that Tank did not exhaust his administrative remedies. On July 1,
2011, Tank’s attorney filed a complaint with the Illinois Department of Labor (“IDOL”) stating
that although he requested his personnel file, T-Mobile did not provide it to him. (Pl.’s Resp.
Def.’s Stmt. Fact, Dkt. # 114, ¶ 62; Def.’s Ex. O.) Tank’s attorney received a letter from IDOL
dated August 25, 2011 stating that it had received his complaint and instructing him to contact TMobile within 10 days of receiving the letter to set up an appointment with T-Mobile to review
his records. (Def.’s Ex. O.) The letter further stated that Tank’s investigation file would be
closed if Tank did not “request further assistance in writing within thirty (30) days from the date
of this letter.” (Id.) IDOL also sent a letter to T-Mobile on August 25, 2011, which included a
copy of Tank’s complaint and requested that T-Mobile allow Tank to review his personnel file.
(Pl.’s Ex. 14, ¶ 7; id. Ex. 1, 8/25/2011 letter from IDOL to T-Mobile.) While Tank states that he
contacted T-Mobile’s counsel (Wood Decl., Pl.’s Ex. 14-1, 9/9/11 email from Wood to T-Mobile
counsel) upon receiving the August 25, 2011 letter from IDOL, Tank fails to point to any
evidence that he requested additional assistance from IDOL when T-Mobile still did not provide
him with a full copy of his file.
Tank asserts that by filing the IPRRA complaint with IDOL, he satisfied his burden to
exhaust his administrative remedies. The Court disagrees. “The Supreme Court has set out two
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purposes for exhaustion: ‘protecting administrative agency authority and promoting judicial
efficiency.’” Gonzalez v. O'Connell, 355 F.3d 1010 (7th Cir. 2004) (citation omitted). As
another court in this district has concluded, the plain and ordinary meaning of the IPRRA
indicates that “the Illinois legislature intended that the Director of the Department of Labor be
the primary enforcer of the statute, and that an employee’s private right of action arises only
when the Director is unable to resolve the dispute between the parties and also elects to forego
legal recourse.” Anderson v. Bd. of Ed. of City of Chi., 169 F. Supp. 2d 864, 870 (N.D. Ill. 2001).
By failing to contact IDOL, as instructed, after T-Mobile apparently did not respond to his
September 9, 2011 request for his personnel file, Tank did not allow the administrative review
process to run its course. In other words, he did not “exhaust” his administrative remedies.
Regalado v. Linaweaver, No. 12 C 1499, 2013 WL 1196593, at *3 (N.D. Ill. Mar. 22, 2013)
(“Exhaustion of available administrative remedies means using all steps that the agency holds
out, and doing so properly (so that the agency addresses the issues on the merits).”) (citations
and internal quotation marks omitted). Thus, Tank not only prevented IDOL from playing its
central role in enforcing the statute, he compelled involvement by this Court, thus undermining
exhaustion’s goal of promoting judicial efficiency.
The Court notes that IDOL’s own IPRRA complaint instructions contemplate ongoing
involvement by IDOL in the event that its initial efforts at conciliation are not fruitful. The
complaint instructions, of which the Court takes judicial notice, state that once a complaint is
received and processed, “[s]elf-explanatory letters will be sent to you and your (former)
employer.” Illinois Department of Labor, PRRA Complaint Instructions,
http://www.illinois.gov/idol/Laws-Rules/ legal/Pages/PRRA-Instructions.aspx. As noted above,
these self-explanatory letters were sent on August 25, 2011. The instructions go on to state that:
You may be required to participate in an informal investigative hearing. If the
Department is unable to proceed/assist you with your complaint, a RIGHT TO
SUE LETTER will be issued. Such letter will show that you have exhausted your
administrative remedies and allow you to pursue any civil remedies available at
law and your file will be closed.
Id. It is undisputed that no right to sue letter has been produced by Tank. To allow Tank to
claim exhaustion by unilaterally disengaging from the conciliation process before it is complete
would subvert IDOL’s important role in enforcing the IPRRA and render its provisions pointless.
The Court is unwilling to advance such an interpretation of the statute.
Because Tank failed to exhaust his administrative remedies, the Court grants summary
judgment to T-Mobile on Tank’s IPRRA claim.
F.
Illinois Wage Payment and Collection Act (“IWPCA”)
As an initial matter, Tank moves to strike the declaration of Kim Lupo, T-Mobile’s
Director of Executive Compensation, which T-Mobile submitted in support of its motion for
summary judgment on this claim. Tank claims Ms. Lupo’s declaration lacks foundation and that
she was not disclosed in discovery. As the Director of Executive Compensation, Lupo is
10

qualified to authenticate T-Mobile’s bonus plan, which is the only point on which the Court
refers to her declaration. Moreover, T-Mobile identified Ms. Lupo in depositions and documents
that were produced to Tank. (Def.’s Resp. Mot. Strike, Dkt. # 133, at 9.) A party has a duty to
supplement its initial disclosures only when the additional information “has not otherwise been
made known to the other parties during the discovery process.” Fed. R. Civ. P. 26(e)(1)(A).
Therefore, the motion to strike Ms. Lupo’s declaration is denied.
Tank alleges that T-Mobile violated the IWPCA by not paying him an earned bonus or
unused Paid Time Off (“PTO”). T-Mobile contends that Tank’s claim as to unused PTO fails
because it paid him for 97.54 hours of accrued PTO upon his departure. Tank does not address
this aspect of his IWPCA claim in his response brief, thus the Court deems it waived. De v. City
of Chi., --- F. Supp. 2d ----, 2012 WL 6605009, at *22 (N.D. Ill. Dec. 14, 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.”)
As to the bonus, Tank was terminated in August 2010, and he contends he is entitled to a
bonus based on the time he worked from January 1 to June 30, 2010. “The Illinois Wage
Payment and Collection Act requires employers to pay employees bonuses that it unequivocally
promised to pay.” O'Leary v. Accretive Health, Inc., No. 09 C 1428, 2010 WL 234869, at *6
(N.D. Ill. Jan. 19, 2010) (citing 820 Ill. Comp. Stat. 115/2). On January 1, 2010, T-Mobile
implemented a Semi-Annual Bonus Plan. (Def.’s Ex. K, Lupo Decl., ¶ 10.) The Plan provides
that bonuses are based on both T-Mobile’s and the individual’s performance, are “determined at
[T-Mobile’s] sole discretion,” are not “earned or due until paid,” and “there shall be no
expectation of earning or payment of any bonus for any particular Performance Period.” (2010
Semi-Annual Bonus Plan, Def.’s Ex. K-4, at 1, 4.) Discretionary bonuses do not entitle an
employee to a bonus under the IWPCA. O’Leary, 2010 WL 234869, at *6 (denying IWPCA
claim where bonus was discretionary and not guaranteed). Therefore, the Court grants judgment
to T-Mobile on this part of Tank’s IWPCA claim.

Conclusion
For the reasons stated above, the Court grants T-Mobile’s motion for summary judgment
[88-1] in its entirety. Tank’s motion to strike [111-1] is denied as stated in this order. Because
the docket does not reflect that service was ever effectuated on defendants Deutsche Telekom,
AG and T-Mobile International AG, they are dismissed from the case pursuant to Federal Rule
of Civil Procedure 4(m). Civil case terminated.
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Date: April 19, 2013

____________________________________
United States District Judge
Ronald A. Guzman

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