Bob-Manuel v. Chipotle Mexican Grill, Inc.

Filing 105

MEMORANDUM Opinion and Order Signed by the Honorable Ruben Castillo on 1/15/2014. (ao,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TUBONIMI BOB.MAUNUEL,

)

)

Plaintiff,

)
)

v.

No. 12 C 750

)

CHIPOTLE MEXICAN GRILL, INC.,
Defendant.

Chief Judge Ruben Castillo

)
)
)
)

Tubonimi Bob-Manuel brings this action against
chipotle Mexican Grill, Inc., alleging
employment discrimination on the basis of race
and national origin and retaliation in violation

Title

vII

of the

civil

Rights Act

of 1964,42u.s.c.

g 2000e et

seq.(..Title

vII,,), and,42u.s.c.

$ 1981 ("Section 1981"); discrimination on the basis of age
and retaliation in violation of the
Age Discrimination in Employment Act, 29
u.s.c. $ 621 et seq. (the,.ADEA"); discrimination
on the basis of disability and retaliation in
violation of the Americans with Disabilities
Act,42

u's'c'

$ 12101 et seq' (the "ADA"); and retaliatory discharge in violation
of Illinois state law.

Presently before the court is Defendant's
motion for summary judgment pursuant to
Federal
Rule of

civil

Procedure 56. For the reasons set forth
below, the court grants Defendant,s

motion in part and denies it in part.

RELEVANT FACTS'
Plaintiff is a fifty-five-year-old black, Nigerian-born,
united States citizen. (pl.,s Rule
56' l Resp' fll: 42-44') Defendant is a chain
of "fast casual" restaurants that specializes
in

I

rhe court

of

takes the facts from the parties' statements
of material facts. (R. g3, Def.,s Local
Rule 56.1(aX3) Statement of Materiar Facts (..Def.,,
ru"ir';;; R. 96, pr.,s Response to Def.,s
Facts ("PI.'s Rule 56.1 Resp."); R. g7, pl.,s
Local nure io.rrux:l<cl statement of
Material
Facts ("P1.'s Facts"); and R. tO:, Oef.,s
Response to pl.,s Facts (..Def.,s Rule
56.1 Resp.,,).)

Mexican fare' (Id.'!f

l.)

Defendant operates a restaurant located at

ll2gl.ake street in oak

Park, Illinois (the "Oak Park Restaurant"), where Plaintiff
worked from November 16,200g,

until his termination on March

ll,2}ll.

(Id..Tll

l,

10,41.)

Each of Defendant's restaurants is operated by a set
of crew members who are
responsible for preparing and cooking food, assembling
customer orders, cleaning and

maintaining the restaurant, serving customers, and other
similar tasks.
members are at-will employees.
Prep' and

Line' (Id' fl 9') Grill

(Id)

ed

nD

All crew

crew members work in three primary work areas: Grill,

and Prep are stations in the back of the restaurant,
and crew

members at these stations are required to maintain proper
food handling, safety, and sanitation
standards while preparing food; follow recipes;
exhibit a cheerful and helpful manner; display a

positive and enthusiastic approach to all assignments;
and develop positive working relationships

with all restaurant personnel. (Id. 8.) The Line involves
n
all the positions in the front of the
restaurant, which are divided into the tortilla, salsa,
expeditor, and cashier stations. (Id. g.)
n

crew members are assisted and managed by four levels
of management (listed in ascending
order of responsibility): Kitchen Manager, service
Manager, Apprentice Manager, and General

Manager' (Id

1[

3')

The General Manager is responsible for making
all employment and

operational decisions in the restaurant, including
deciding who to hire and fire, deciding who to

promote and train, and scheduling employees. (Id.
fl 4.) The General Manager is supervised by
an Area Manager, whose duties include overseeing
a number of restaurants and helping those
restaurants reach their goals. (Id.
113.)

I.

Plaintiffs First Four Months of Employment
General Manager Robert Ruggiero, a caucasian
male, and Apprentice Manager oscar

o'Campo, a Hispanic male, interviewed and hired
Plaintiff on November 16,200g,as

a

crew

member' (Id' n rc) Plaintiff alleges that he was specifically hired as a general
manager trainee
on a fast-track to management. (Id.; Def.'s Rule 56.1 Resp.
n26.) Joe Kersjes, a twenty-seven-

year-old Caucasian male, was hired on November 22,2008,
as a Service Manager. (pl.,s Rule
56'1 Resp' n 46.) Both Plaintiff and Kersjes initially trained together
with Ruggiero, and they
worked frequently together in the back of the restaurant. (Def.'s
Rule 56.1 Resp. n27.) Within a
few weeks, however, Ruggiero discontinued Plaintifls training
while continuing to train Kersjes.

(Pl''s Rule 56.1 Resp. fl 45.) Plaintiff remained almost
exclusively in the back of the restaurant,
frequently washing dishes, while Kersjes rotated to other stations. (Def.,s
Rule 56.1 Resp. ,tT2s.)
Kersjes was promoted to Apprentice Manager at the Elmhurst,
Illinois Restaurant

2009' Qd

\29)

on Aprll27,

Plaintiff alleges that Ruggiero stopped training him because
of his race,

national origin, and age. (Pl.'s Rule 56.1 Resp.
heard Ruggiero make any comments regarding

''lT

45.) Plaintiff admits, however, that he never

Plaintiff s race, national origin, or age. ed
n

Plaintiff also alleges that o'campo treated him differently

based on his race, national

age by making him wash dishes and take out the garbage
by himself, by keeping

47.)

origin, and

him in the food

preparation area, and by refusing to cross-train him. (Id.
n 48.) plaintiff admits, however, that
washing dishes, taking out garbage, and working in the food
preparation area are all

responsibilities of a Prep employee. (Id.) He also admits
that he never heard o,Campo make
any comments about his race, national origin, or age. (Id.
n 4g.)

II.

Plaintiffs Performance

Issues

Ruggiero was Plaintiff s General Manager for the first four
and a half months

Plaintiff

s

employment. (Id.

tT

of

11.) After Ruggiero left, Jeanine Cruz Chavez, a Caucasian

female, became the General Manager of the Oak Park
Restaurant and supervised plaintiff until

october 17,2010. (rd. n 15.) Area Manager Vicky Kubicki,
a Caucasian female, was Chavez,s

supervisor during PlaintifPs employment.

Plaintiff

s

(Id.ll

16.) on June 1,2009, Chavezrecorded in

Development Journal that he needed to work on perfecting his procedure
because he

made mistakes that would not happen

if

he took his time, and that he needed to work on

completing all Prep tasks by 6:00 p.m. and getting out by I r:00 p.m. (Id.
n20.) on June 15,
2009, Plaintiff allegedly received his first written warning (a
"performance Discussion,,), stating
that on June l3th, he made a batch of guacamole but did not
cover it with two lawyers of plastic
as he was trained

to do; as a result, the guacamole had to be disposed of. (Id.

n 21.) plaintiff

denies that the guacamole incident occurred and he denies
receiving the performance Discussion.

Qd') rn fact, Plaintiff
personnel

denies receiving any of the five Performance Discussions
that were in his

file' (Def''s Rule

56.1 Resp.

''!T

15.) Performance Discussions are supposed to be given

to employees in a face-to-face meeting and the manager is
supposed to confirm receipt, yet none
of Plaintifrs Performance Discussions were signed by either plaintiff
or a manager. gd. fln

l5') Michael

A-

Triola, the Human Resources Director for the Central Region,
admitted that

Plaintiff may have never received the Performance Discussions
in his file. (Id.lT 15.)
Ln2009, Plaintiff failed to report to work for a scheduled
shift on nine occasions. (pl.,s
Rule

56'l Resp' It24) Plaintiff

alleges that the schedules posted were not always the
final

schedule and that chavez scheduled him to work
on days he had requested

appointments'

made'

(Id')

(Id')

off due to doctors,

Chavezalso testified that sometimes the schedules
changed after they were

Anundated, unsigned performance review in Plaintiff s file
rated plaintiff

s

performance in the categories of food, equipment,
and customer service as ..needs

improvement," which is the lowest possible rating. (Id. j]27.)
In January 2010, Chaveztold Julia Kim, Human Resource
Generalist, that plaintiff was
not meeting his job expectations and was a low performer.
(1d.1125.) After reviewing plaintiff

s

Development Journal, Performance Discussions, and performance
reviews, Kim advised Chavez

to have an honest conversation with Plaintiff about expectations
on a weekly basis, and then
later, on a daily basis. (Id. n26.) Erica Arringlon, an Apprentice
Manager, noted plaintifps
performance issues in the oak Park Restaurant's
Dear Diary2 on several occasions in early 2010:
on February l3th she noted that Plaintiff struggled to
keep up with prep and dishes; on March

4th she noted that Plaintiff did not complete Prep and started
marinating a steak at l0:50 p.m.
even though he was told not to; on March 25th she noted
that

plaintiff needed help closing prep,

did not take any garbage out until closing, and had trouble
keeping pace with dishes, and that she
found an object in steak he marinated. (Id. 2g.)
fl
In Plaintiff s second performance review, dated April
2010, he received a.,needs
improvement" rating in the categories of food, equipment,
and customer service. (Id.
n30.)
Triola reviewed a draft of this review, which Chavezhad prepared,
and suggested changing
whatever appeared "inconsistent" or could be seen
as "picking,, on
Resp'

plaintiff. (Def.,s Rule 56.1

ffi20-21') For example, with regard to the food category, Triola said he ..would like to
see

specific examples that we can back up with documentation."
(Id.

n2l.)

The version of the

evaluation Plaintiff received contained many more
details about plaintiff s performance
problems than the version chavezoriginally
drafted. Qd

n22.) For

instance, the evaluation

recounted one incident where Plaintiff had allegedly
lost two cases of chicken due to improper

rotating in February 2olo. (Id.

n23) Plaintiff

and Arrington testified that the cases of chicken

had gone bad, and when Arrington called chavezto
inform her of
have Plaintiff marinate the chicken anyway.

this, chaveztold Anington to

(Id.) But Arrington and plaintiff

would be unsafe to prepare the chicken, so they threw
it away.

(Id.)

2 A restaurant's
"D9ar Diary" is a book that Defendant's managers

agreed that

it

chavez denied that she

use to communicate with one
another about anything that was going on in the
restaurant. (Def.,s Rule 56.1 Resp. ,l]4g.)
5

instructed Arrington and Plaintiff to marinate the chicken. (1d) Kubicki
testified that she and
Chavez discussed the review with Plaintiff, but Plaintiff denies having
participated in such a

discussion. (Id.) In October 2010, Plaintiff received his third performance
review, in which he
received an overall rating of "meets expectations," but continued
to be rated as o.needs

improvement" in the food category. (pl.,s Rule 56.1 Resp.
n32.)
On November 8, 2010, Panithan "Sai" Thanawutthikorn, an Asian
male, became General
Manager of the oak Park Restaurant

. (Id n35.) on November lg,2}ll,plaintiff

received an

evaluation of 'omeets expectations," and following this evaluation,
he received his first and only

payincrease. (Def.'sRule56.1 Resp.
n37.) OnDecember23,2}ll,plaintiffreceiveda
Performance Discussion for his tardiness, which stated: o'Bob
was l5 mins late and did not call.

l2l2ll10 Bob was 15 mins late but did not call . . . at 8:15 to let us know
that he will
8:30'" (Pl''s Rule 56.1 Resp. fl 36.) Plaintiff
be the last write

up." (Id.) Plaintiff

the Performance Discussion.
clocked in at 8: 14 a.m.

be in at

was warned: o'Please do not be late again. This

will

denies that he was late those days, and he denies receiving

(Id.) Plaintiff s time

sheet indicates that on Decemb

er 21,2010,

he

(Id.) Defendant alleges that Plaintiff reported to work six or more

minutes late 32 times between June 8, 2009 andDecember
23,2010. Qd. n37.) plaintiff denies
these allegations and states that the schedules posted
were not always the final schedule. (1d
)

Plaintiff
a

s

time sheets also indicate that on eleven occasions when plaintiff
allegedly committed

violation of Defendant's policies or procedures, he was not at
work. (Def.,s Rule 56.1 Resp. fl

13.)

Kubicki visited the oak Park Restaurant between once

a week and once a

average and observed Plaintiff on multiple occasions. (Pl.'s
Rule 56.1 Resp. n U

month on

)

Kubicki

observed issues with Plaintiff s performance: he failed
to clean his dish area, washed dishes with

6

dirty water, and repeatedly violated food safety standards when he placed chicken
and carnitas
on the same table-

(Id)

Kubicki also noted Plaintiff

s repeated

failure to complete tasks in a

timely manner. (1d ) Kubicki described PlaintifPs performance as "never satisfacto
ry.,, (Id.

l8')

She testified that he would argue

\

with anyone who gave him any constructive feedback,

including herself. (1d.) She also stated that crew members and managers
were afraid of him
because of his explosive and condescending demeanor. (1d)

Plaintiff denies Kubicki's allegation that his performance was never
satisfactory

. ed.)

Kim testified that Defendant considered Plaintiff s performance to
be satisfactory in his
November 2010 review. (Id.) Arrington testified that Plaintiff was
the .,Ace in his place,, for
Prep, meaning he was assigned to that station during peak
hours because he was the strongest

employee in that position.

(Id.) Plaintiff

also denies Kubicki's allegation that

plaintiff would

argue with anyone who gave him constructive feedback and
that crew members and managers

were afraid of him.

(Id.) Anington

testified that Plaintiff never frightened her and that she

enjoyed working with him, as he was always professional and polite

. (Id.) Arrington also

testified that Plaintiff was open to feedback if it was constructive,
but that Kubicki,s and
Chavez's feedback was not constructive. (Id.1T 19.) Arrington
and Arlene Guerrero, a service
Manager, testified that Plaintiff was a team player, competent
employee, and a hard worker.

(Def''s Rule 56'1 Resp. 1T36.) Plaintiff always offered his
assistance to anyone who needed it
when Arrington was a manager.

(Id.) Hewent "above

and beyond,', and was a mentor to

Arrington and Guerrero. (Id.)

III.

EventsSurroundingptaintiffsTermination
Thanawutthikorn took an eight-week leave of absence in early
March 2011, and.

Apprentice Manager Veronica Garcia, a Hispanic female, became
the acting General Manager

for the oak Park Restaurant. (Pl.'s Rule 56.1 Resp.

'tl

38.) Garcia reported to Kubicki that

she

had three conversations with Plaintiff because he refused
to wear gloves and was eating food

while preparing food, which were both violations of Defendant's
and Illinois,s food safety
policies and grounds for termination under Defendant's policies.
ate

(Id.) plaintiff

denies that he

while preparing food. (Id.) on March 4,2011, the oak park
Restaurant management team

called and emailed Kubicki with concerns about Plaintiff
s attitude and food safety violations.

(Id'1139') The email stated that Plaintiff was not respectful
in the workplace; that he left a soiled
towel on the prep table when the health inspector was inspecting
the restaurant on February 2g,

20ll;

that Thanawutthikorn asked Plaintiff to not eat while prepping
on March 1,2011; that

Garcia saw Plaintiff eating bell peppers while cutting
them, asked him to not eat while prepping

food, and Plaintiff asked her "what am I eating?" on Marc

h4,20ll;

that Garcia found a soiled

towel on the prep table againon March 4,2011; and that
when Garcia asked plaintiff to check
the dining room and dishes on March 4th, Plaintiff
became angry and began throwing dishes and
using profanity, including ..fuck this shit.,, (1d.)

Plaintiff denies that these incidents occurred, and his time
sheet indicates that he was not
at work on March 4,2011.

(Id.) Guerrero testified that she never saw plaintiff leave a
soiled

towel in the prep area, but that it was done all the time
by other employees. (Def.,s Rule 56.1
Resp'

11

56')

She stated that other employees did not follow procedures
all the time, but no one

else's erors were documented as frequently as Plaintiff
s. (1d ) Guerrero believed she may have

written up Plaintiff for an incident where Plaintiff was
eating

a

bell pepper while prepping food,

but she did not remember if she saw him eating the bell pepper.
(Id. n s7.) She testified that she
would not have documented the incident but for Kubicki's
instruction to document everything

Plaintiff did' (Id.) Arrington testified that it was frequent
for employees at the oak park

Restaurant to use profanity and that Plaintiff swore less often
than other employees. (1d tT5S.)

Neither Arrington nor Guerrero were aware of any employees
being disciplined for using

profanity'

(Id')

Although the memorandum that accompanied Plaintiff
s termination stated that

Guerrero heard Plaintiff say "God damn it," she testified
that she never heard plaintiff use

profanity or saw him throw dishes or be insub ordinate. (Id.)

Kubicki forwarded the March 4,2011 email to Triola, seeking
advice on how to handle

Plaintiff

s

behavior' (Pl.'s Rule 56.1 Resp.
1140.) Kubicki testified that Triola instructed her to

initiate Plaintiff

Plaintiff

s

termination and sent her a termination memorandum that
summarized

s behavior as described

in the March 4th email. (Id.;Def.,sRule 56.1 Resp.
!T59.)

Kubicki agreed that PlaintifPs behavior warranted termination
and carried out plaintiff
termination on March

ll,2oll.

involved in drafting Plaintiff

s

s

(Pl.'s Rule 56.1 Resp.
fltT40-41.) Triola admitted that he was

termination memorandum, but he testified that Kubicki
made the

decision to terminate Plaintiff and that he did not provide
any advice as to whether plaintiff
should be terminated. (Def.'s Rule 56.1 Resp.

tI60.) Kubicki testified that plaintiff

was

terminated based on the incidents described in the
termination memorandum and on his overall

performance' (Id.1161.) Triola testified that Plaintiff
was terminated for insubordination only,
not for performance reasons. (Id.) Theposition statement
Defendant submitted to the Equal
Employment opportunity commission ("EEoc") stated
that plaintiff was terminated for
unexcused absences, poor performance, inability to meet
Defendant's reasonable expectations,

violations of Defendant's Food Safety Policies and Procedures,
and insubordin ation. (Id.)

Iv.

Plaintiffs Allegations of Race, National origin, and Age Discrimination
Plaintiff alleges that chaveztreated him differently
based on his race, national origin,

age, and disability by keeping him in the kitchen/preparation
area, making him wash dishes,

making him take out the garbage alone, failing to train
or promote him, excessively
micromanaging him, making derogatory comments,
humiliating him, cutting his hours after he
requested an accommodation based on his disability,
and denying him a raise. (pl.,s Rule 56.1

Resp'

'T

50')

Chavezmicromanaged Plaintiff by standing over
him and watching him complete

tasks that he knew how to do, like marinating
meat. (Def.'s Rule 56.1 Resp.
fl

5.)

She also

examined the avocado peels in the garbage to check
to see if plaintiff had wasted any avocado,
and she checked the size of the lettuce that Plaintiff
had cut.

called him "Bobo," which he did not

(Id.) plaintiff

alleges

like. (Pl.'s Rule 56.1 Resp. fl 51.) plaintiff

that chavez

also alleges that

chavezmade fun of his accent. (Def.'s Rule 56.1
Resp. fl 2.) on one occasion, after chavez
terminated chase wright, an African-American
emproyee, she told

plaintiff .,Bob you,re

a

survivor. I',ve been wanting to fire you." (rd.13.)
Arrington, who was present for this
comment' heard chavezmake a substantially similar
statement.
chavez asked Plaintiff whether he was getting ready
to retire.

(Id.)

onanother occasion,

gd n4.) Anington stated that

Chavez showed a preference for younger workers
because she believed they could work faster.

(rd.)

Arrington testified that chaveztold,Lloyd Jones,
a newly-hired African-American
employee,

"I hope you don't

get mad, but I like to make black jokes

.,, (ld.fl g.)

Arrington's assistance, Jones transferred to Defendant's
Elmhurst Restauran

Soon after,

t. Qd.)

with

Chavez

made comments about Arrington's half African-American
daughter, such as.owhy would you
have your baby with an afro," and "what is
wrong with her hair?,, Qd.1l

lo.) plaintiff

alleges

that racism was rampant at the oak Park Restaurant,
and that it was because of this that chavez
held a mandatory meeting where she stated
that discrimination against African-Americans
would

not be tolerated' (Pl''s Rule 56.1 Resp.

tT5l.) chavezwas terminated

10

after two employees

complained that she made derogatory comments about African-Americans, but Defendant denies
that those complaints were the basis for her termination. (Def.'s Rule 56.1 Resp.
n

D.)

To be promoted to Kitchen Manager, a crew member must be proficient and cross-trained
on all areas in the back of the restaurant (i.e. Grill and Prep) and know and follow all procedures.

(Pl.'s Rule 56.1 Resp. fl 33.) Defendant alleges that Plaintiff was never promoted to Kitchen
Manager because he was not cross-trained on all areas of the kitchen. (Id.
n34.) Plaintiff alleges
that he was denied training that had been promised to him at the time of his hire. (Id.) Arrington
witnessed the training Plaintiff received both at the beginning of his employment and after his

initial management training was stopped. (Def.'s Rule 56.1 Resp.,tT30.) Arrington testified that
Plaintiff was trained on the line sporadically and when there was a line out the door, which made

it difficult for him to be successful. (1d) Chaveztold Arrington that Plaintiff was not going to
be promote
Resp.

d. (Id. fl I .) Plaintiff

alleges that Arrington was promoted over

him. (pl.,s Rule 56.1

n 52.) Arrington was promoted to Kitchen Manager on September 14,2009, after

receiving a performance review on April 26,2009, indicating that she met expectations in every
category; she was promoted to Service Manager on November 9,2009. (1d.; Def.,s Rule
56.1
Resp. fl 6.)

Plaintiff also alleges that Ryan Haydon was promoted over him. (pl.'s Rule 56.1 Resp.
fl
53.) Haydon, a thirty-year-old Caucasian male, was hired on Novemb er 3,2009,and was
promoted to Kitchen Manager on May 10,2010, after receiving a perforrnance review
of ..above

expectations" in all categories. (Id.) DavidResendiz, a twenty-four-year-old Hispanic male,
was hired on May 20,2009, as a crew member; although he was never promoted,
he was made a

Kitchen Manager-in-training, a position that precedes a promotion to Kitchen Manager. (Id.n
55; Def.'s Rule 56.1 Resp. n32.) Arrington observed the training that Haydon and
Resendiz

11

received and testihed that she, Haydon, and Resendiz were trained on virtually all the stations
and received more training and resources than

Plaintiff. (Def.'s Rule 56.1 Resp. fl 31.)

Arrington testified that she believes that Plaintiff would have been capable of being a Service
Manager if he had been given the same tools, resources, and support as other employees

. (Id.)

Plaintiff also alleges that Kristina Rodriguez was hired after him and was promoted over

him. (Pl.'s Rule 56.1 Resp. fl 54.) Rodriguez,

a twenty-seven-year-old

Hispanic female, was

hired on July I1,2006, at a Chipotle in Kansas, was promoted to Kitchen Manager on September

28,2009, in Kansas, and then was transferred to the Oak Park Restaurant on October 5,2009.

(Id.) Plaintiff further

alleges that Maria Guerrero was promoted over

him. (Id.156.) Maria

Guerrero, a twenty-five-year-old Hispanic female, was hired on Novemb er 2,2007, at the River

North Restaurant and was promoted to Kitchen Manager on September 24,20l2,more than a
year after Plaintiff s termination. (Id.)

During the time Plaintiff was employed at the Oak Park Restaurant, seven Hispanics, five
Caucasians, and five African-Americans were terminated for unacceptable work performance;

two Hispanics were terminated for insubordination; and one Caucasian and one multi-racial
individual were terminated for violating company rules. (Id. 57.)
n

V.

Plaintiffls Health Issues
Plaintiff alleges that he suffers from

a congenital heart disorder,

disease, hypertension, and an inguinal hemia. (Id.

n 55.) Plaintiff

retinopathy, kidney

alleges that his congenital

heart disorder made him tired and made it impracticable for him to function as a no,,nal, healthy

person. (Id.n 59.) Defendant alleges that PlaintifPs heart is normal and not diseased
because
computed tomography scans of his chest revealed no acute cardiopulmonary disease and
echocardiograms revealed normal systolic function and no regional wall abnormalities. (Id.n

t2

60') on March 27,2013, Plaintiff

was examined by Dr. Matilda Malm at John
H. Stroger Jr.

Hospital ("Stroger Hospital") who indicated that
his chest pains were unlikely cardiac-related;
he
was treated for gastroesophageal reflux disease.

(Id.;R. g9-g, Ex. III, pl.,s Stroger Hospital

Medical Records at l-2.)

Plaintiff alleges that his eye disorder prevents him from
driving,

causes migraines, and

prevents him from reading voluminous
materials. (Pl.'s Rule 56.1 Resp. 61.) when plaintiff
fl
was first diagnosed with an eye disorder, in
or around September 20l0,he could not see
out
his right eye' (Def.'s Rule 56.1 Resp. 66.)
In September and october
tl

2IlL,plaintiff

of

s vision

problem was treated by Dr. Jeff wongskhaluang,
a senior resident in ophthalmology at Stroger

Hospital' (Pl''s Rule 56.1 Resp.
1162.) Dr. wongskhaluang concluded that plaintifps vision
probably did not limit his ability to work
and that he was able to serve food on the line,
prepare
food in the kitchen, marinate and cut or shred
meat, clean the dining room, and read. (pl.,s
Rule

56'l Resp' l[][62-6a; R' 89-9, Ex. JJJ, wongskhaluang Dep.
at 37:7-39:05.) plaintiff complained
of discomfort when driving at night, so Dr. wongskhaluang
recommended that plaintiff refrain
from driving at night' (Pl.'s Rule 56.1 Resp.
1163.) Plaintiff informed Defendant that he had an
eye disease and provided Defendant with
a doctor's note stating that

plaintiff had ..decreased

vision especially at night and shourd not be
driving at night.,, (Def.,s Rure 56.1 Resp.

Plaintiff

s hours were reduced after he informe

71') chaveztoldPlaintiff that

d chavezthat

she would schedule

he could not drive at

n

67.)

night. (Id.

n

Plaintiff when she could, but..wasn,t going to

change the whole schedule around for one person.,,
(1d)

Defendant alleges that in May

2}l},Plaintiff called off from work informing Kubicki

that "they" had found a kidney match and
he needed to be tested to make sure it was
compatible.

(Pl''s Rule 56'l Resp. 65.) Plaintiff denies
fl
telling Kubicki this. (Id.) Sometime in2012,
after

13

Plaintiff

s

termination, he was treated for a kidney disease
by Dr. Albert osei at Stroger

Hospital' (Id' n 66) Dr' osei determined from reviewing plaintifls
medical file that plaintiff

s

kidneys had not failed and were functioning properly.
Qd.) Dr.osei characterized plaintiff s

kidney disease as "not that severe

.- (Id.)

Plaintiff had no physical limitations due to his
kidney

disease; the only implications of the kidney
disease were limits on the amount of salt,

phosphorus, potassium, and non-steroidal
anti-inflammatories plaintiff could consum
e. (Id.)

Plaintiff has been treated by Dr. osei at Stroger
Hospital for his hypertension since 2007.
Qd' n 67 ') Dr' osei testified that Plaintiff had no limitations
at work due to hypertension, and
that lifting would not affect Plaintiff s blood
pressure.

Plaintiff

s hypertension

to be severe.

(Id.) Plaintiff

(Id

1167.)

Dr. osei did not consider

was also treated at Stroger Hospital by
Dr.

Michael Davidovich, a general internist, on
two occasions, once in April 2009 and once
in
September 2010. (rd
n68; R. 90-1, Ex. MMM, Davidovich Dep. at 9:17-21) Dr. Davidovich
noted no limitations caused by Plaintiffs
hypertension and kidney disease, and only
recommended that Plaintiff exercise as
much as possible and eat a low-sodium
diet. (pl.,s Rule
56.1 Resp. fl 68.)

Plaintiff alleges he was diagnosed with
more than ten pounds'

(rd 1f69.) Plaintiff

a

hemia in2009and was restricted to lifting
no

alleges that his hernia made it very

difficult for him

to lift and that lifting heavy items caused
him extreme pain. (Def.,s Rule 56.r Resp.
fl 65.)
Plaintiff informed his managers of the lifting
restriction at the time of his diagnosis and
requested that someone else

lift heavy items

and take out the garbage. (1d.) Kubicki
testified

that chaveztoldher that Plaintiff would,
at times, refuse help and violate his
lifting restrictions.

(Pl''s Rule 56'1 Resp' 69') Plaintiff
fl

s

hernia was surgically repaired on Februar

gd.170.)

l4

y

2g,2013.

on

one occasion, on an unspecified date, Plaintiff
alleges that he gave chav

ez anote

from his doctor and chaveztoldhim that he
was terminated. (Def.,s Rule 56.1 Resp.

,.1169.)

Plaintiff asked to speak with someone in Human
Resources, andchavezcalled Kubicki,
who
told chavezthat she could not terminate Plaintiff.
(Id.) chavez burst out of her office, yelling
expletives and saying,o'l carltbelieve this. I
can't get rid of this guy for nothing.,, (1d) plaintiff
alleges that chaveztoldhim, "You're sick
a lot, I don't think this job is for you,,,
and that she
told him on several occasions that he was
too sick to work for Defendant. (Id. 70.)
cbavez
n
denied telling Plaintiff that he was sick
a lot and too sick to work for Defend
arfi. (Id.)

Arrington testified that on some occasions,
chavez threw away doctors, notes plaintiff
had
provided' claiming that she did not need
them. Qd.1174.) chavezstated that she did
not throw
away any of Plaintiff s doctors' notes and
instead placed all of the notes in his
file. (/d)
When an employee of Defendant has a
medical condition which requires an

accommodation' the employee is to bring
it to the attention of his General Manager.
ed. n72.)
Documentation of accommodations is
kept in the employee's confidentia I file.
ed.) The Area
Manager and the Human Resources Department
are, under Defendant,s policy, always
involved
in responding to an employee's request for
accommodation; however, Kubicki could
not
remember if she discussed with Plaintiff
what accommodations he might need,. (ld.fl

73.) on

January

ll ' 201I , Kubicki

told Triola that Plaintiff had not provided
documentation of his need

for accommodations. (1d)

vI'

Plaintifps compraints about Discriminatory
Treatment
Plaintiff alleges that he complained to o'campo,
chavez,and Human Resource

Generalist Esther Smiley in late 2009

to early 2lllregarding chavez,s management
team

cutting his hours, setting unrealistic time
expectations, prohibiting breaks, micromanaging
him,

15

failing to accommodate his medical restrictions, and failing to train or promote him, and their
discriminatory, harassing, and retaliatory behavior against him. (Pl.'s Rule 56.1 Resp. fl 71.)

Plaintiff alleges he made similar complaints to Kim in early 20t0. (/d.) Defendant denies that
Plaintiff complained to Kim that Defendant failed to accommodate his medical restrictions.
(Def.'s Rule 56.1 Resp. fl 40.) After Chavez learned that Plaintiff had complained to Human
Resources, she told Arrington and other managers that she was "pissed" at Plaintiff for going to

Human Resources and instructed them to document every liule thing Plaintiff did wrong, even

it was coming in to work one minute late. (Id. n 42.) Arrington testified that

Chave z

if

"plotted"

against Plaintiff, and that she had more than twenty conversations in which Chavez said that she
wanted Plaintiff fired because he had complained. (1d.n43.) Chavez denies plotting against

Plaintitf. (Id.)
Kim conducted an investigation of Plaintiff s complaints beginning in February 2010.
(Pl.'s Rule 56.1 Resp. n74.) As part of her investigation, Kim interviewed Plaintiff,
management, and crew members.

(Id.)

Some of the crew members told her that Plaintiff did not

always greet or address coworkers when arriving to work, fell behind easily, often needed help

closing, and took playful banter between the crew too seriously. (Id.; R. 97-1, Ex. 8, Kim Dep.
at 189: 10-22.) After interviewing and investigating PlaintifPs complaints, Kim alleged that she
saw no signs of discrimination or harassment. (Pl.'s Rule 56.1 Resp.

n74.) Kim determined that

Plaintiff was not meeting expectations, following procedures, working with a sense of urgency,
or communicating with his team. (Id.) Kimalso investigated whether Plaintiff s hours had been
drastically cut and learned that Plaintiff requested days off due to his doctor appointments but
expected to receive full-time hours by being scheduled on every day that he had not requested

off,

a request that Chavez could not accommodate

l6

without sufficient notice. (Id.175;R. 97-1,

Ex. 8, Kim Dep. at220:23-223:19.) Arrington testified that Plaintiff was one of the few
employees who informed managers of his doctor appointments weeks in advance. (Pl.'s Rule
56.1 Resp. fl 7s.)

Plaintiff complained to Kim that Chavez refused to accommodate his lifting restrictions,
and he requested to meet with then-Area Manager Jacob Sumner. (Def.'s Rule 56.1 Resp. fl 46.)

On February 25,2010, Sumner, Chavez, and Arrington met with Plaintiff to discuss his

complaints. (Id.) Plaintiff alleges that Sumner apologized for lapses and inconsistencies in his
training, told Plaintiff "we dropped the ball on your training," and instructed Chavez to crosstrain Plaintiff and abide by his medical restrictions. (Id.) After the meeting with Sumner,

Arrington saw Plaintiff lifting garbage (weighing up to 50 or 60 pounds), cases of steak
(weighing approximately 30 pounds), and cases of lettuce (weighing approximately 30 pounds).
Ud.

n77.) Guerrero also saw Plaintiff carrying

garbage and dishes (weighing 10 to 20 pounds)

without ellryhelp. (Id.)
Plaintiff filed a Charge of Discrimination with the EEOC on March 5,2010. (Id n 44.)
Plaintiff gave Chavez

a copy

of the EEOC Charge. (Id.) Plaintiff alleges that after he filed his

EEOC Charge, he was micromanaged more often and it was impossible for him to take breaks.

(Pl.'s Rule 56.1 Resp. n76.) Plaintiff alleges that Chavezrequired him to sit with her for

as

much as ninety minutes per shift, which caused him to fall behind on his prep. (Def.'s Rule 56.1
Resp. fl

50.)

Chavez also forced Plaintiff to work on the line at the busiest times of the day

without training. (Id. n 51.) Defendant alleges that Chavez spent more time with Plaintiff
attempting to train him properly and prepare him for future development and cross training, as
Chavez was instructed

to do. (Id.) Chaveztestified that the training she gave Plaintiff was not

the cause of him falling behind on his prep. (Id.)

t7

Arrington testified that when chavezleamed about plaintiff
out and ranted about it and said that Plaintiff
"had to go."

(Id

s

EEoc charge,

she freaked

1145.) chavezdenied that she said

Plaintiff had to go. (Id.) Kubicki told Arrington
and Guerrero to document any incident
involving Plaintiff and she told Guerrero that Plaintiff
had filed a lawsuit against Defendant.

fi)

Arrington testified that Defendant's managers
were "looking for stuff, on plaintiff to
document' (Id' n 54) Guerrero testified that Plaintiff
was under the microscope and that it was
"ridiculous documenting everything" because
they did not do that with any other employee.
(/d
Qd' n

''l155') Managers typically write in employees' Development
Joumals every month, and in the
eleven months that chavezhadworked
with Plaintiff before February 2llL,managers
had

written in Plaintiff
and March

s Development Joumal

five times. (Id.

11

4s.) Between February 27,2010,

23,2}lo,however, Chavezand other managers made
six entries in plaintiff

s

Development Journal about Plaintiff s performance
errors. (Id. 1147.) In February and March
2010' there were 17 Dear Dia.y entries regarding
Plaintiff s alleged performance problems. (^Id

n 49') After March 2010, there were no additional Dear Diary
entries regarding plaintiff until
December 2010. (Id.)
After Plaintiff filed his EEoc charge, Kim
offered to transfer him to

a

different

restaurant' but Plaintiff declined the offer.
(Pl.'s Rule 56.1 Resp
It76.) plaintiff alleges that he
declined the offer because he felt that transferring
would simply have a ..Band-Aid effect,, rather
than solving the problem of discrimination
at the oak park Restaurant .
ed.) Kim alleges that
she investigated but did not find any
change in treatment towards plaintiff
by the management
team after he filed his first complaint.

(Id.) Kimtestified

that after plaintiff filed his EEoc

Charge, Triola took over the investigation
from her, and her involvement in plaintiff
s case
ended. (Id.)

l8

Triola monitored Plaintiff

s

performance after he filled his EEOC charge. (Def.'s Rule

56.1 Resp. fl 63.) One of Triola's responsibilities as Human Resources Director was to act as the

liaison with outside counsel on EEOC charges, which included gathering documents and sending
updates for complaining employees'

for Plaintiff

files.

(1d.

n 64.)

s most recent Development Journal

On January 3,2011, Triola asked Kubicki

entries. (Id. n

$)

told Kubicki he was working with Defendant's attomey on drafting

On January 13,2011, Triola
a

Development Journal entry

"to deal with the attendance issue" and that Defendant's attomey would be interviewing Kubicki
and Thanawutthikom

"with the sense 'this won't end well with Bob'

-

we want to be prepared."

(Id.) On January 20,2011, Triola asked Thanawutthikorn to send Plaintiff s Development
Journal, work schedules, and the Dear Diary to Defendant's counsel

. (Id )

On March 8, 201l, in

response to Kubicki's report that only one Development Joumal entry had been completed since

the beginning of the year, Triola responded, "Yah, not good."

(Id.) Triolacould not recall an

employee other than Plaintiff for whom he continued to send records to outside counsel after
Defendant filed a position statement with the EEOC.

VII.

(Id n 64.)

Plaintiffs Workplace Injury
Plaintiff claims that he fell while taking out the garbage on Decemb er 23, 2010. (Id.
n

79.) Defendant alleges that Plaintiff first reported his injury to Thanawutthikorn on December
26,2010. (Id.) Plaintiff alleges that he told Thanawutthikom about his injury the day it
occurred. (Id.;R.97-1,F;x.3, Pl.'s Dep. at 199:12-24) Defendant alleges that Thanawutthikorn
informed Kubicki that he "went to call in the claim and [Plaintiff] told him he did not want him

to. [Plaintiff]

said he contacted his doctor and he diagnosed

it over the phone

as Sciatica and

prescribed Vicodin." (Pl.'s Rule 56.1 Resp. n79.) Plaintiff denies telling Thanawutthikorn that
he did not want him to call in the

claim. (Id.; R.

97 -1, Ex. 3,

t9

pl.,s Dep. at I 99: I 5-200: l.)

Thanawutthikorn reported the worker's compensation claim on January 14,2011. (Pl.'s Rule
56.1 Resp.

n79.) Plaintiff

was treated by Concentra Medical Center as a result of this claim and

was diagnosed with a hipithigh sprain/strain. (Id.

tT

80.) Defendant paid for Plaintiff

s

subsequent doctor's visits and treatment. (1d.) The treating physician and physical therapist

imposed restrictions on Plaintiff s activities, including lifting, prolonged standing/walking

pushing/pulling, squatting, and climbing stairs/ladders. (Def.'s Rule 56.1 Resp. fl 78.)
Concentra faxed the documents to the restaurant and Plaintiff also gave them to

Thanawutthikom. (1d.)
In early January 2011, Plaintiff complained to Kubicki that Thanawutthikorn refused to
accommodate his injury because Thanawutthikorn was racist. (Pl.'s Rule 56.1 Resp. n77.)

Kubicki alleges that she and her supervisor, Ed Berg, investigated Plaintiff

s

complaint and

learned from Plaintiff that he respected Thanawutthikorn and thought that he had improved the

restaurant. (Id.) Plaintiff denies telling Kubicki that he respected Thanawutthikom or thought
that Thanawutthikorn had improved the restaurant. (1d) Plaintiff alleges that because

Thanawutthikorn refused to accommodate his medical limitations, Plaintiff

s

treating physician

told Defendant that Plaintiff could not work until he was released. (Def.'s Rule 56.1 Resp. n79.)
Plaintiff did not work from January 2I,2011 until February 9,2011 as a result of his injury.
(Pl.'s Rule 56.1 Resp. fl 80.) On February 10,2011, Plaintiff retumed to working a normal
schedule. (1d

)

Upon his return, Plaintiff asked Thanawutthikorn to be paid for the days he

missed. (Def.'s Rule 56.1 Resp. t|80.) Plaintiff was discharged from treatment on or about
February 25,2011. (Pl.'s Rule 56.1 Resp. fl 80.)

20

PROCEDURAL HISTORY
Plaintiff initiated this action on February 2,2012. (R.
l, compl.) on January 15,2013,

Plaintiff filed his ten-count amended complaint. (R. 48,
Am. compl.) In count I, plaintiff
alleges discrimination on the basis of race in violation
of Title

vlr, (id.flfl 33-3s); in count II, he

alleges discrimination on the basis of national
origin in violation of Title vrr, (id.,tffl 3g-aa); in

count III, he alleges discrimination on the basis
of race, color, and ethnicity in violation of
Section 1981, (id' ll a5-a\; in count IV, he
alleges retaliation in violation of ritle v1, (id.
nn
50-57); in count v, he alleges discrimination
on the basis of age in violation of the ADEA,
(id.
flfl 58-63); in count

vI,

he alleges retaliatory discharge in violation
of

Illinois state law, (id fln

6a'69); in Count vII, he alleges retaliation in violation
of the ADEA, (id.flIt70-76);in Count

vIII'

he alleges discrimination on the basis of
disability in violation of the

ADA,

(id nn77-g3):

in count IX, he alleges failure to accommodate
in violation of the ADA, (id.lllg4-gs); and
in
count X, he alleges retaliation in violation of
the ADA, Qd nngg-g5). Defendant answered

Plaintiff

s amended complaint on January

2r,20r3,(R.

50, Ans.), and moved for summary

judgment on August 26,2073,(R.
82, Def.'s Mot. Summ. J.). plaintiff responded
to Defendant,s
motion for summary judgment on october 4,2013,(R.
96, pl.,s Resp.), and filed a corrected
memorandum of law in opposition to summary judgment
on octob er 9,20r3,(R.

l0l, pl.,s

Mem')' Defendant replied to Plaintiff s memorandum
in opposition to summary judgment on
October 25,2013. (R. 102, Def.,s Reply.)
LEGAL STANDARDS
Summary judgment is appropriate when the
record shows that there is no genuine issue
as

to any material fact and that the moving party
is entitled to ajudgment as a matter of law.
Fed.
R' civ' P' 56(a)' "A disputed fact is 'material'
if it might affect the outcome of the suit under

21

governing law." Hampton v. Ford Motor co.,56l
F.3d70g,713 (7thcir. 2009) (citing
Anderson v' Liberty Lobby, lnc.,477'{J.s.242,248
(1986)). A genuine issue of material fact
exists when "the evidence is such that a reasonable jury
could return a verdict for the nonmoving

party'" Anderson,477 u.s. at248. In determining
whether

a genuine issue of material fact

exists' the court must view the evidence and draw
all reasonable inferences in favor of the party
opposing the motion

(7th

cir'

'

Id. at 255; omnicare, Inc. v. unitedHealth Grp.,
Inc.,

629 F .3d 697,

704

2011) ("[D]istrict courts are not required to
draw every requested inference; they must

only draw reasonable ones that are supported
by the record.") The moving party has the
initial
burden of demonstrating that it is entitled to judgment
as a matter of law. celotex corp.

v.

catrett'477u's'317,322(1986); ll'heelerv.Lowson,539F.3d
629,634(7thcir.200g). The
moving party o'canprevail just by showing that
the other party has no evidence on an issue
on
which that party has the burden of proof." Brazinski
v. Amoco petroleum Additives Co.. 6
F.3d
1176,1183 (7th Cir. 1993).
once the moving party has met this burden,
the nonmoving party must ..come forward

with specific facts demonstrating that there is genuine
a
issue for trial.,, ll'heeler,539 F.3d at
634' "The existence of a mere scintilla of evidence,
however, is insuffrcient to fulfill this
requirement' The nonmoving party must show
that there is evidence upon which a jury
reasonably could find for the plaintiff.

" Id. (citing Anderson,

477 rJ.s.

at 25r-52.) The

nonmoving party may not rely on o'mere conclusions
and allegations,, to create a genuinely
disputed issue of material fact. Balderston
v. Fairbonks Morse Engine Div. of coltec
Indus.,32g

F'3d 309' 320 (Tthcir' 2003)' Instead, the
nonmoving party "must make a showing
sufficient to
establish any essential element of her cause
of action for which she will bear the burden
of
persuasion at tnal'' smith ex rel. smith
v. severn, l2g F.3d, 419, 425 (7th cir.
1997); see also

22

celotex' 477 u 's' at 322-23. weighing evidence and
making credibility decisions

are

jury

functions, and it is not appropriate for a judge to
assume those functions when ruling on a motion

for summary judgment. Anderson,477 u.S. at 255.
Accordingly, the court ..appl[ies] the
summary judgment standard with special
scrutiny to employment discrimination cases,
which
often turn on issues of intent and credibi lity."
Krchnavy v. Limagrain Genetics Corp.,2g4 F
.3d
87

l,

87

5 (7th Cir. 2002).

on

summary judgment, the court limits its analysis
of the facts to the evidence that is

presented in the parties' Local Rule 56.1
statements.

^See

Bordelon v. chi. sch. Reform Bd.

of

Trs''233 F'3d 524,529 (7thcir. 2000) (referring
to Local Rules t2(M)and (N), which were
replaced by Local Rule 56)' To adequately
dispute a statement of fact, the opposing party
must
cite specific support in the record; an unsubstantiated
denial or a denial that is mere argument
or
conjecture is not sufficient to create a genuinely
disputed issue of material fact. Malec v.

sanford' 191 F'R'D' 581, 585 (N.D. Ill. 2000);

see also Judson Atkinson candies, Inc.
v.

Latini-

Hohberger Dhimantec, 529 F.3d 371,3g2
n.2 (7thCir. 200g).

ANALYSIS

r'

Iltll*t

Race, National

origin, and Age Discriminarion claims (counts
I, rr,III,

In counts I, II, III, and v, Plaintiff alleges
that, in failing to promote or train him and
in
terminating his employment, Defendant discriminated
against him based on his race, national
origin, and age in violation of Title
35' 47

'

vII,

Section

lggl,

and the

ADEA. (R. 4g, Am. compl. lffl

60') Title vII and Section l98l prohibit employers
from discriminating against their

employees on the basis of race or nationar
origin. 42
see Potton v' Indianapolis Pub. sch.

u.s.c.

g

2000e-2(a)(l); 42 u.s.c. g

lggl;

8d.,276 F.3d 334, 337-3g (7th cir. 2002). similarly,
the

ADEA prohibits employers from discriminating
against their employees on the basis
23

of

age. 29

u'S'C'

$

623(a)(l). Discrimination claims under Title vII, Section 19g1,
and the ADEA are

analyzed in the same manner, and this court
v. Perry,520 F.3d

will thus analyzeall three claims together. Atanus

662,671(7th Cir. 200g); patton,276F.3dat 33g.

A plaintiff may prove discrimination under Title VII, Section
l9gl, and the ADEA
through the direct or indirect methods of proof. Atanus,52o
F.3d at 671; Brewer v. Bd. of Trs

univ' of lll''

479 F '3d 908, 915 (7th

cir. 200T.3 A plaintiff may prevail

of

under the direct method

of proof either by presenting direct evidence of intentional
discrimination or o.by constructing a

'convincing mosaic' of circumstantial evidence that 'allows

a

jury to infer intentional

discrimination by the decision-maker."' Rhodes
v. Ill. Dep't of rransp.,35gF.3d 49g, 504 (7th
Cit ' 2004) (quoting Troupe v. Moy Dep't Stores
Co. , 20 F .3d 734, 737 (7thCir. I 994)). If
a

plaintiff relies on circumstantial evidence, the evidence
"must point directly to a discriminatory
reason for the employer's
939 (7th

cir' 2003))'

action."

1d. (quotin g Adams

v. wal_Mart stores, Inc., 324F.3d 935,

circumstantial evidence that can form a convincing
mosaic fall into three

categories: (1) suspicious timing, ambiguous
statements, "behavior toward or comments
directed
at other employees in the protected group,
and other bits and pieces from which an inference

of

discriminatory intent might be drawn," Troupe,20
F.3d at736;(2) evidence.,that similarly
situated employees were treated differentl y,"
Coleman v. Donahoe, 667 F.3d g35, g60 (7th

cir.

3 The
Supreme court has held that to prevail under
the ADEA, a plaintiff must show that age
-brox
was the but-for cause of the adverse employment
action.
v. FBL Fin. iirus., lnc.,557
u's' 167' 180 (2009) ' Post-Gro,ss, the Sevlnth circuit
to apply the direct and indirect
methods when analyzingADEA claims. see
Fleishman"orr1iru.,
v,. continrntai iar. ci., agaF.3d
59g,
604 (Tthcir' 2012) ("we have continued
to apply ti ucoonnell Douglasburden-shifting
framework in summary judgment cases that proceea
*a".irr. indirecimethoJ of proof a
question Gross explicitly left open',) (citing
srnyrn iyi)re, 5gg F.3d 50r ,506_ou7th cir.
200e))); Hnizdor ,.
!y!yi! tioutiiigs,.rn::,413 F 6;;; ils,
will cntv. sherffi s80 F.3d 4g5,4sg"ornSrl.?goririprvrry st7 (7th cir. 20tt); Mach v.
the direct meth; of proof); see
also Yee v. UBS O'Connor, ZZC No.'07 c 7150,zot'o"itl
rcqogz, at*r7 (N.D. ilr. Apnr22,
2010) ('oGross did not equate the burden
of proof in an eopa case with the method
of
presenting
that proof,,,).

24

2012) (quoting Volovsekv. Wisc. Dep't of Agr., Trade & Consumer Prot.,344 F.3d 680,689 (7th

Cir. 2003)); and (3) "evidence that the employer offered

a pretextual reason

for an adverse

employment action," Coleman,667 F.3d at 860 (intemal citations and quotation marks omitted).
ooEach

type of evidence is suffrcient by itself (depending of course on its strength in relation to

whatever other evidence is in the case) to support

a

judgment for the plaintiff; or they can be

used together." Troupe,20 F.3d at736.

A plaintiff that has failed to establish discriminatory intent under the direct method may
nonetheless prevail under the indirect method of

proof-the burden-shifting approach first

established in McDonnell Douglas Corp. v. Green,4l

I U.S.

792 (1973). Brewer, 479 F.3d at

915. Under the indirect method of proof, a plaintiff must first establish aprimafacie
discrimination. McDonnell Douglas,4l I U.S. at802. To establishaprima.facie
discrimination, a plaintiff must demonstrate that:

(l)

case

case

of

of

he is a member of a protected class;

(2)he

was meeting the defendant's legitimate performance expectations; (3) he suffered an adverse

employment action; and (a) the defendant treated similarly situated employees outside of the
protected class more favorably. Fane v. Locke Reynolds, LLP,48O F.3d 534, 538 (7th Cir.

2007). Once a plaintiff establishes aprimafacie

case, he creates a rebuuable presumption

of

employment discrimination, and the burden of production shifts to the defendant'oto articulate
some legitimate, nondiscriminatory reason" for its actions. Hong v. Children's Mem'l Hosp.,
993 F.2d 1257, 126l (7th Cir. 1993) (quoting McDonnell Douglas,4l 1 U.S. at 802).

If the

defendant cannot satisfy its burden, summary judgment will be denied. See Wittaker v. N. Ill.

Univ., 424 F.3d 640, 647 (7th Cir. 2005). If the defendant does provide noninvidious reasons for
its actions, the burden shifts back to the plaintiff to show that the articulated reasons were

pretextual. Hong,993

F

.2d at 1261.

25

The Seventh circuit has found that the
second and third categories of circumstantial
evidence under the direct method (the
similarly situated inquiry and pretext inquiry)
are similar
to the requirements to establ ish a prima
facie caseunder the indirect method, and thus the

court's

'oanaryses

overrap." coreman,

sheriff's Dep't' 602F'3d 845,

85

Inc' 476 F '3d 487 4go-gl (7th
'

'

667

F.3dat g60 n.g (citing Egonmwan v.
cook cnty.

I (7thcir.

2010)) ; see also Hemsworth v.
euotesmith.com,

cir' z}}7)(explaining that the indirect method ..involves

a subset

of circumstantial evidence (including
the disparate treatment of similarly
situated employees)
that conforms to the prescriptio n
of [McDonnell Douglosf,,).

Plaintiff alleges that he was subjected
to three adverse employment actions:
(l) he was
terminated; (2)he was denied training
opportunities; and (3) he was denied promotions.
(R. l0l,
Pl''s Mem' at3-4' 13') Defendant argues
that the court should not consider plaintiff
s failure to
train claim because he did not allege
failure to train in his EEoc charge
or his compraint. (R.
82- l Def''s Mem' at 7
') Adiscriminatory failure to train claim is distinct from a failure to
'
promote claim' and therefore, failure
to train must be pleaded as a separate
wrong. Maaroufv.
walker Mfg' co" Div' of Tenneco
Automotive, Inc.,2lo F.3d750,753(7th
cir. 2000) (citing
Paffird v' Herman,l48 F'3d 658,669 (7thcir.lggg)). plaintiff
alleged in his EEoc charge
that his "management training was
stopped but the training for younger,
non-Black, nonNigerian Management Trainees continued.,,
(R. 4g-r, Ex. A, EEoc charge
at r.) Thus, the
court finds that Plaintiffs EEoc charge
sufficiently alleged a failure to train
claim. In addition,
Plaintiff alleges in his complaint that
"[w]ithin several weeks of his start, chipotle
terminated

[Plaintiff s] management training

,"

andthat ao'younger, caucasian, and
presumably American-

bom employee who started as Associate/Management
Trainee at the same time as
[plaintifl was
allowed to continue training and
ultimately promoted to General Manager
of a different area

26

Chipotle restaurant." (R. 48, Am. Compl.'l|fl 12-13.) Plaintiff explicitly incorporates these facts

into Counts I, II, III, and

Y.

(Id. flfl 33, 39,45,58.) Viewing these facts and drawing all

inferences in favor of Plaintiff, the Court finds that Plaintiff pleaded a discriminatory failure to

train claim in the complaint, and the Court now tums to analyze the merits of Defendant's
motion for summary judgment on the claim.

A.

Whether Plaintiffs termination was discriminatory

Plaintiff argues that f," ,uffel"d an adverse employment action when he was terminated.
(R. 101, Pl.'s Mem. at 13.) Plaintiff seeks to avoid summary judgment on his discriminatory
termination claim via the direct method of proof by supplying circumstantial evidenc e. (Id.)
Specifically, he argues that the facts give rise to an inference that Defendant's reasons for
terminating him are pretexual. (Id.) "The employee may succeed in his demonstration of pretext
by offering evidence that the employer's ostensible justification is unworthy of credence."

Adreani v. First Colonia Banlcshares Corp. , I 54 F.3d 389, 396 (7th Cir. 1 99S) (internal citations
and quotation marks omitted). The employee may accomplish this showing with evidence

"tending to prove that the employer's proffered reasons are factually baseless, were not the
actual motivation for the discharge in question, or were insufficient to motivate the discharge."

Id. (quotingTesterman v. EDS Technical Prods. Corp.,98 F.3d 297,303 (7th Cir. 1996)).
"Although general averments of adequate performance are insufficient to create a factual issue
on summary judgment even when corroborated by statements of supervisors or co-workers, a

plaintiff may create an issue of fact by specifically refuting facts that allegedly support the
employer's claim of performance deficiencies." Dey v. Colt Constr. & Dev. Co.,28F.3d 1446,
1460

(7thCir.1994).

27

Defendant states that it terminated plaintiff
because of his ,.poor performance,

insubordination, and failure to follow basic
chipotle policies and procedures.,, (R. g2-1, Def.,s

Mem' at 9') The position statement Defendant
submitted to the EEoc states that plaintiff
was
terminated for unexcused absences, poor performance,
inability to meet Defendant,s reasonable
expectations, violations of Defendant's Food
Safety policies and procedures, and

insubordination' (R' 101, Pl.'s Mem. at l5;
R. g7-4,Ex. 33, Def.,s position Statement.)
The
termination memorandum Plaintiff received
described several incidents in which plaintiff
violated Food Safety Policies and was insubordinate.
(R. 97-3,Ex.25, Termination Mem.)

Plaintiff denies that any of the events described
in the termination memorandum occurred-he
denies leaving a soiled towel in the prep
are on February 2g,2ol1; he denies eating
a bell pepper

while cutting it on March 1,2071; and he denies
cursing at Garcia and thowing dishes on
March
4'2011' (R' 101' Pl''s Mem' at 13.) Plaintiff points
to the testimony of Guerrero, who said
she
never saw Plaintiff leave a soiled towel
in the prep area and could not remember
if she saw

Plaintiff eat a bell pepper while cutting it. (Id.
at 14.) The termination memorandum states that
Guerrero heard Plaintiff say "God damn
it," but Guerrero testified that she never heard plaintiff
use

profanity and never saw him throw dishes
or be insubordinate.

(Id.) plaintiff also denies the

occu,'ence of other incidents that Defendant
notes as examples of his poor performance,
such as
the guacamole incident, (Pl.'s Rule 56.1
Resp. 112l),and the incident involving
two cases of
chicken' (Def''s Rule 56'1 Resp.
n23). Plaintiff points to Arrington,s testimony describing
Plaintiff as an "Ace in his Place" to further
counter Defendant,s allegations that he
was not
meeting Defendant's expectations. (Pl.'s
Rule 56.1 Resp. fl 1g.) plaintiff also offers
Arrington,s
testimony that Plaintiff never frightened
her and that he was always professional
and polite to
counter Defendant's assertions that Plaintiff
was insubordin ate. (Id.) Finally, plaintiff
counters

28

Defendant's assertions that Plaintiff had several unexcused absences by providing time sheets
indicating the times he clocked in, (id.
always the final schedules, (id.

tT

36), and testimony that the schedules posted were not

n3D.

The evidence Plaintiff offers to prove that Defendant's reasons for firing him are

pretextual goes beyond general assertions of adequate job performance and directly addresses the
specific performance deficiencies identified by Defendant. The Court thus finds that Plaintiff
has provided sufficient evidence to raise a factual issue as to whether Defendant's

justifications

for terminating him are credible or merely a pretext for discrimination. See Dey,28 F.3d at 1460

(finding that

a

plaintiff who denied that certain events ever took place and specifically addressed

the complaints of uncooperative behavior made by her employer presented enough evidence to

permit a reasonable finder of fact to infer that the employer fabricated the reason for her
dismissal).
Defendant attempts to refute Plaintiff s pretext argument by asserting that Plaintiff has
presented no evidence that Kubicki or Triola, the individuals who made the decision to fire

Plaintiff, did not believe the events articulated in the termination memorandum. (R. 102, Def.'s
Reply at 9.) If the employer honestly believed its reasons for discharging the employee, the
employee cannot meet his burden of proving pretext. Gordon v. United Airlines, Inc. , 246

F

.3d

878, 889 (7th Cir. 2001). This is true even if the employer's reasons for discharging the
employee are "foolish or trivial or even baseless."

/d

(quotin g

Brill

v. Lante Corp., I 19 F.3d

1266, 1270 (7th Cir. 1997). "A determination of whether a belief is honest is often conflated

with analysis of reasonableness." Flores v. Preferred Technical Grp., 182 F.3d 512, 516 (7th
Cir. 1999). A court therefore does not have to take an employer at its word. Gordon,246 F .3d
at 889. "When an employee provides 'a detailed refutation of events which underlie the

29

employer's negative performance assessment,'
the employee demonstrates ,that the employer
may not have honestly relied on the identified
deficiencies in making its decision .,,, rd.(quoting

Dey'28 F'3d at 1460-61). As discussed above,
Plaintiff

has provided a detailed refutation of
the

specific performance deficiencies identified
by Defendant and, consequently, has demonstrated
that Kubicki and Triola may not have honestly
relied on the deficiencies outlined in the

termination memorandum in making their
decision to terminate plaintiff.
Because the evidence may

allow afactfinder to "reasonably infer that unlawful

discrimination was the true motivation,"
Adreoni,l54 F.3d at3gl,plaintiff has met
his burden
under the direct method and avoided
summary judgment on his discriminatory
termination claim.

B'

whether Defendant's decision to not promote
and train plaintiffwas
discriminatory

Plaintiff also alleges that he suffered adverse
employment actions when Defendant
refused to promote and train him. (R.
l0l, Pl.'s Mem. at3-4.) plaintiff groups these two
adverse actions together and presents
the same circumstantial evidence to
show that Defendant,s

denial of promotion and training opportunities
was discriminat ory. (Id.) First, plaintiff
argues
that throughout the time chave z managedhim,
she made statements that give rise
to an inference
that she did not train or promote him
because of his race, national origin,
and age. (Id. at 5.)
Plaintiff points to the following statements
chavez made to him: (l) chavez explicitly
stated that
Plaintiff was not going to be promoted; (2)
chavezcalled plaintiff ..Bobo,,, which
he alleges is a
monkey's name' and made fun of his
accent; (3) chavez asked plaintiff
whether he was getting
ready to retire; and (a) after chavezhadterminated
an African-American employee,
she told

Plaintifi "Bob, you're a survivor' I've

been wanting to fire you.,,

(Id.)

Defendant argues that

chavez's comments were simply stray
remarks that were not made contemporaneously
with any
adverse employment action. (R. 102,
Def.,s Reply at 4_5).
30

"Isolated comments that are no more than 'stray remarks' in the workplace are

insufficient to establish that

a

particular decision was motivated by discriminatory animus,,,

unless the remark was made by the decision-maker

"(l)

around the time of, and (2) inreference

to, the adverse employment action." Merillat v. Metal Spinners, Inc., 470 F.3d 685, 694 (7th Cir.
2006) (quoting Hunt v. City of Markham,

Ill.,2l9

F

.3d 649, 652 (7th Cir. 2000)). Because

Plaintiff has not provided evidence to prove that Chavezmadethese comments during or near
any denial of a promotion or training opportunity, the Court cannot find that these comments
alone are sufficient to establish a discriminatory inference. However, the Court must examine

PlaintifPs circumstantial evidence as awhole. Hobgoodv. Ill. Gaming 8d.,731 F.3d 635,644
(7th Cir. 2013) ("[T]ogether with other facts, evidence that would be insufficient
standing alone
can be sufficient to defeat summary judgment
the

if

a reasonable

jury ultimately could conclude that

plaintiff was the victim of illegal discrimination or retaliation.") (internal citations and

quotation marks omitted).

Plaintiff also alleges that Chavezmade statements that give rise to an inference that she
was biased against African-Americans generally. (R. 101, Pl.'s Mem. at 5.) For
example,

Plaintiff alleges that Chaveztold
get mad, but

a

newly-hired African-American employee, ..I hope you don,t

I like to make black jokes," and that Chavezmadederisive comments about

Arrington's daughter, who is half African-American. (Id. at6.) Further, an investigation
leading

to Chavez' s termination found that two employees had complained that Chavezmade racial
jokes about African-Americans. (Id.) The Court recognizes
the comments Chavez directed at
other employees in the protected group as one type of circumstantial evidence.
Troupe,20 F.3d

at736.

3l

Plaintiff next argues that the documentation Defendant
relies on to support its reasons for
not training or promoting Plaintiff contain serious
flaws that give rise to an inference of pretext.
(R' 101' Pl"s Mem' at 6') Defendant claims that
Plaintiff was not promoted because he was not
qualified and was not meeting Defendant's
expectations. (R. g2, Def.,s Mem. at 5-7.) plaintiff
argues that on eleven occasions on which
he allegedly committed violations of Defendant,s

policies and procedures' he was not at work,
and therefore these write-ups were fabricated.
(R.

l0l'

Pl''s Mem' at 6') Defendant attempts to explain
this discrepancy by asserting that..it is
evident that chipotle's management simply
documented instances
plaintifps
of

improper

behavior and poor performance in days following
the poor performance.,, (R. 102, Def.,s
Reply

at7.)
Additionally, Plaintiff provides circumstantial
evidence regarding his performance
Discussions' Plaintiff alleges that the five
Performance Discussions Defendant claims
were in
Plaintiff s personnel file were not prepared in accordance
with Defendant,s policies because they
were not signed by Plaintiff or a manager
and Plaintiff never received them. (R. l0l, pl,s
Mem.
at 6') Plaintiff cites Rudin v. Lincoln Land
Cmty. coll. , 420 F .3d 7 12, 723 (7th cir.
2005), for
the proposition that a defendant's failure
to follow its own internal procedures can point
to a
discriminatory motivation' (Id.) Defendant
argues that Rudindoes not apply because
in that
case there were written guidelines that
the employer failed to follow, whereas
here there is no
written policy requiring Defendant's managers
to obtain an employee,s signature on all
Performance Discussions' (R. 102, Def.'s
Reply. at 7.) Although there is no written policy,
Plaintiff has provided the deposition testimony
of two Human Resources employees who
both
explained that under Defendant's poricy,
a manager is supposed to obtain an
emproyee,s
signature on performance discussions. (R.
97-r, Ex. g, Kim Dep. atgT:06_20; R. 97_r,
Ex. r0,

32

Triola Dep' at 69:14-70:03.) Defendant's distinction
between this case and Rudinis therefore
immaterial because there is a policy in place.
Therefore, Defendant,s failure to follow its policy
regarding the Performance Discussions is
evidence of pretext that the court will consider.

Plaintiff additionally alleges that the circumstances
surrounding his May 2010
performance evaluation suggest that it
was prextual. (R. 101, pl.,s Mem. at

7.)

AtTriola,s

request' chavez added more details to Plaintiffs
evaluation so that it would not appear as
though

"picking" on Plaintiff. (Id. at8.) Plaintiff alleges
that one specific incident described in
the revised evaluation-where Plaintiff
allegedly lost two
she was

cases of chicken due to improper

rotating-was false' (Id') Plaintiff

argues that this "raises a question of whether,
based on

Triola's instructions, chavez added information
to the evaluation that she knew to be false.,,

(Id') Yiewing Plaintiff s circumstantial evidence
of pretext
Plaintiff has created a factual issue

as

training him are credible or pretexual

.

as a

a

whole, the court finds that

to whether Defendant's reasons for not promoting
or
see

Hobgood,73l F.3d at 644; patmythes v. city of

Janesville,l8l F. App'x 596,5gB (7th cir. 2006)("Even
if

the

plaintiff

s evidence does

not
compel the conclusion that his employer
discriminated against him, if there is a question
of fact
as to the believability of an employer's
purported reasons for an employment
decision then at a
bare minimum it suffices to defeat the
employer's summaryjudgment motion.,,) (quoting
Rudin,

420F.3d at726) (internal quotation marks
omitted)).
4

Plaintiffalso argues-thgJ the dispute over what position plaintiff
was hired for is further
evidence of pretext' (R'101, Pl.'s Mem.
at4,9.) Defendant claims that plaintiff was hired
as a
crew member' (R' 102, Def"s Reply at
8), and Defendantis records indicate that plaintiff
s job
title when he was hired was o'cashier," gi.
a+-s,Er. Nj*proyee Informatio, ro.-1. plaintifi
however' alleges that he was hired u. u'g"n"rrt
on u ruri-iru.t to management.
-*ug",
(R' 101' Pl''s Mem' at 9') Plaintiff and-Defendant
ttrat ptaintifps training was stopped
shortly after Plaintiff started
y9+ing. (rd.;R. t0z,"g*; n"pty at g.) Defendant never claims
ief.'s
that it stopped training Plaintiff be.ur*"
t
t irLJ
crew
finds no evidence of pretext as to why D"t{ql.t"pp.;,lining member, and the Court thus
"*u.
""ry ",
plaintiff in the parties,
disagreement over the exact position for
which praintiff was hired.

#r"L

JJ

Considering all of Plaintiff s circumstantial evidence together-the evidence of pretext
and Chavez's statements toward Plaintiff and other

Plaintiff has constructed

a

convincing mosaic of circumstantial evidence that allows a jury to

infer intentional discrimination.
Accordingly, Plaintiff

African-Americans-the Court finds that

s race,

See

Hobgood,731 F.3d at 644; Troupe,20 F.3d at 736.

national origin, and age discrimination claims (Counts I, II, III, and

V) survive summary judgment.

II.

Plaintiffs Disability Discrimination and Failure to Accommodate Claims (Counts
and IX)

VIII

In Count VIII, Plaintiff alleges that he was discriminated against based on his disabilities
in violation of the ADA when Defendant failed to promote or train him and when Defendant
terminated his employment. (R. 48, Am. Compl.

t|80.) In Count IX, Plaintiff

Defendant failed to reasonably accommodate his disabilities in violation of the

alleges that

ADA. (Id. ng6.)

The ADA prohibits employers from discriminating against employees on the basis of their

disability. 42U.5.C. $ 12112(a). DiscriminationundertheADAincludesoonotmaking
reasonable accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or employee," unless the employer..can
demonstrate that the accommodation would impose an undue hardship on the operation of the

business." 42 U-S-C. $ 12112(b)(5XA). Thus, "the ADA requires employers to reasonably
accommodate the limitations of [their] disabled employees." E.E.O.C. v. Sears, Roebuck & Co.,

417F.3d789,797 (7thCir.2005). ToinvokeprotectionundertheADA,aplaintiffmustfirst
prove that he is disabled within the meaning of the

ADA. Cassimy v. Bd, of Educ. of Rocffird

Pub. Sch., Dist. No. 205,461 F.3d932,935-36 (7th Cir. 2006).

34

A.

Whether Plaintiff

s

impairments are disabilities

The ADA defines a disability as: (A) a physical or mental impairment that substantially

limits one or more major life activities of the individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment. 42 U.S.C. $ 12102(1). Notably, the ADA
was amended in 2008 to make the standard for qualiffing as disabled more inclusive. ADA
Amendments Act of 2008 ("ADAAA"), Pub. L. No.

ll0-325, I22

Stat. 3553 (effective January

1,2009). "The question of whether an individual meets the definition of disability under [the

ADAI should not

demand extensive analysis." 29 C.F.R. $ 1630.1(c)(4). Following the 2008

amendments to the ADA, the term "substantially limits" is to be construed broadly in favor

of

expansive coverage. 29 C.F.R. $ 1630.2(i)(1xi).
Defendant argues that Plaintiff s alleged medical conditions are not disabilities as defined
by the ADA because they are "either fictitious, temporary, or do not substantially limit any major

life activity." (R. 82-1, Def.'s Mem. at Il-12.) Plaintiff argues that his impairments, including

a

hernia, eye disease, hypertension, and kidney disease,s are disabilities because they

"substantially limit him in several major life activities, including lifting, seeing, standing, and

walking." (R.

101, Pl.'s Mem.

life activities." 42 U.S.C.

S

at20.) Lifting,

seeing, standing, and walking qualify as "major

12102(2)(4). "An impairment need not prevent, or significantly or

severely restrict, the individual from performing a major life activity in order to be considered

substantially limiting." 29 C.F.R. $ 1630.2(i)(l)(ii). The question is whether a plaintiff is

s Although Plaintiff alleges in his complaint that he suffers from a congenital heart disorder, (R.
48, Am. Compl. n lT, Plaintiff does not mention a congenital heart disorder along with his other
impairments in his response to Defendant's motion for summary judgment. The Court thus
considers Plaintiff s argument that his alleged congenital heart disorder is a disability to be
waived. See Palmer v. Marion Cnty.,327 F.3d 588, 597-98 (7th Cir. 2003) (deeming the
plaintiff s negligence claim abandoned because he failed to delineate it in his brief in opposition
to summaryjudgment); Laborers'Int'l Unionv. Caruso, 197 F.3d 1195, ll97 (7th Cir. 1999)
(stating that arguments not presented in response to summary judgment motions are waived).
35

limited "as compared to most people in the general
population
suffered from a hemia that made it very difficult
for him to
101' Pl''s Mem'

at20) Plaintiff

lift

." Id. plaintiff alleges

that he

and caused him extreme

s doctors imposed a ten-pound

pain. (R.

lifting restriction on him, and

Plaintiff thus contends that his hemia substantially
limited him in the major life activity of

lifting' (Id')

Defendant argues that because a hernia is
a temporary impairment that can be

resolved with surgery, it cannot be substantially
limiting. (R. 102, Def.,s Reply at 16.)

Defendant's interpretation of the law, however,
is inaccurate. .,The effects of an impairment
lasting or expected to last fewer than six
months can be substantially limiting within
the meaning
of this section'" 29 c'F'R' 1630'2(l)(l)(ix).
In pre-ADAAA cases, the Seventh circuit
held that

lifting restrictions were not substantial limitations
. serednyi v. Beverly Healthcare, LLC,656
F'3d 540' 555 (7th Cit' 20ll) (citing Zahuronce
v. valley packaging Indus., lnc.,397F.
App,x
246,248 (7thCir.2010); Mays v. principi,30r
F.3d g66, g69 (7th cir. 2002); Mackv.
Great
Dane Trailers,3O8 F.3d 776,781(7th
issue of whether

cir.

2002)).6 The seventh circuit has not
addressed the

lifting restrictions are substantial limitations
under the standard outlined in the

ADAAA' A court in this District, however, applying
the ADAAA
plaintiff s lifting restriction did substantially
limit
Hot Dogs' 1nc" No' I I

c

a

standard,

major life activity

.

found thata

Heatherly v. portillo,s

8480, 2013 WL 37g0gog,at *6 (N.D. Ill
July tg,2ol3)(finding that a

plaintiff, who by doctor's orders had to refrain
from heavy rifting while pregnant, had presented
sufficient evidence to create a triable issue
of fact as to whether her high risk pregnancy
rendered
her disabled under the ADAAA). Based
on this court's reading of the ADAAA
and viewing the

6

The ADAAA, which went into effect
onjanuary 7,2009 did not apply retroactively.
Fredricl<sen v. (Jnited parcer serv.,
co.,_]sr F.3d5r;, 52i n.r
eth cir. 2o[g)(citing Lytes v.
DC Woter and sewer Auth., 572F.'3d 936, g3g-42
@.c. clr.2o0g)). The Seventh circuit
applied the law in place prior to the ADAAA
in s)ednyi-and zahrrarce because
the events in
those cases occurred prior to January
1,2009.
36

evidence in the light most favorable to Plaintiff, the Court finds that plaintiff
s hernia constituted
a

disability that substantially limited the major life activity of lifting.
Plaintiff also contends that his eye disease "interferes with his vision, prevents
him from

driving, causes him headaches, makes it difficult for him to read voluminous
documents, and
causes his eye to leak

fluid." (R. 101, Pl.'s Mem. at20.) When plaintiff was first diagnosed

with an eye disorder, he could not see out of his right eye. (1d His
doctor testified that
)

Plaintiff

s eye sight

improved over the following months, (R. 89-9, Ex. JJJ, Wongskhaluang

Dep. at 3l :1-3; 40:17-20), but as explained above, even temporary
impairments can be

substantially limiting, 29 C.F.R. 1630.20)0)(ix). Accordingly,
the Court finds that plaintiff
eye disease constituted a disability that substantially limited
the major

s

life activity of seeing.

Plaintiff alleges that he also suffered from hypertension and kidney
disease, (R.

l0l,

pl.,s

Mem' at20), but he fails to provide evidence demonstrating how these
medical conditions
substantially limited a major life activity. Defendant, on the
other hand, has provided evidence
proving that these conditions did not substantially limit Plaintiff
in any way. (R. g2-1, Def.,s

Mem' at 12'13J Dr. osei and Dr. Davidovich, who both treated plaintiff
for his hypertension,
testified that Plaintiff s hypertension did not cause him any limitations.
(R. 90-1, Ex. MMM,
Davidovich Dep. at 23:5-25:r; pl.'s Rule 56.r Resp. ,llfl 67-6s.)
Dr. osei, who also treated

Plaintiff for his kidney disease, testified that Plaintifrs kidneys were ..still
doing what [they
were] supposed to do," and that his kidney disease was'onot
that severe,, and never limited him

in any way' (Pl.'s Rule 56.1 Resp. 66.) An individual is discriminated
fl
against under the ADA

if

he is subjected to an adverse action because of a perceived
physical impairment, regardless

whether that impairment substantially limits, or is perceived
to substantially limit, a major life

activity' 29 c.F.R. $ 1630.2(l)(l). Plaintiff

has provided no evidence, however, proving that

37

of

Defendant regarded him as being impaired
because of his hypertension or his kidney
disease, or
that Defendant even knew about his hypertension
or kidney disease. In fact, plaintiff denies

telling Kubicki he needed

a

kidney transplant or that he needed time
off for his kidney to be

tested' (Pl''s Rule 56'l Resp. 65.) Additionally,
fl
Triola testified that the only disabilities
he
knew Plaintiff had were a hemia and vision
problems. (R. 97-1, Ex. 10, Triola Dep.
at 74:5-1.)
Accordingly' the court finds that unlike PlaintifPs
hemia and eye disease, his hypertension
and
limited kidney disease are not disabilities
as defined by the ADA.

B'

whether Plaintiff was discriminated against

Just like for Title

vII

because of his disabilities

and ADEA discrimination claims, plaintiff
a
may prove

discrimination in violation of the ADA
using either the direct or indirect method.
Timmons v.
Generol Motors corp', 469 F.3d 1122,
1126 (7th Cir.2006). Under the
direct method of proof a
plaintiff can present either direct or circumstantial
evidence to meet his burden. Buie v.
Quad/Graphics, 1nc.,366 F.3d 496,503 (7th Cir. 2004).

Plaintiff

seeks to prove discrimination under
the

through circumstantiar evidence. (R.

ADA under the direct method of proof

l0l, pl.,s Mem. at2r.) He relies on the same

circumstantial evidence he relied on to prove
race, national origin, and age discrimination
to
similarly prove that Defendant discriminated
against him based on his disabilities
by failing to
promote or train him and by terminating
his employment. (Id.) plaintiff also
provides additional
circumstantial evidence of chavez's statements
and actions with regards to his disabilities.
Plaintiff alleges that on one occasion,
chaveztold him that he was terminated
after he had
presented a doctor's note to her. (Id.)
Plaintiff then asked to speak with someone
in Human
Resources' and chave z calledKubicki,
who told Chavezthat she could not
terminate plaintiff.

(Id') Aftet hanging

up with Kubicki, chavezburst out
of her office yelling expletives and

38

saying,

"I can't believe this

. . . I can't get rid of this guy for

nothing." (Id.) On another

occasion, Plaintiff alleges that Chavez told him, "You're sick a lot, I don't think this job is for
You," and stated that Plaintiff was too sick to work for Defendant. (Id.) Further, Chavezreduced

Plaintiff

s

hours after he informed her of his vision restrictions, which prevented him from

driving at night. (Id.) All this evidence, taken together with the evidence of pretext Plaintiff
provides for his Title VII, Section 1981, and ADEA claims, and viewed in the light most
favorable to Plaintiff, would permit a rational fact finder to infer that Defendant discriminated
against Plaintiff because of his disabilities. Accordingly, the Court finds that Plaintiff

s

disability discrimination claim survives summary judgment.

C.

Whether Plaintiffs failure to accommodate claim is properly before the

Court
Plaintiff alleges that Defendant failed to reasonably accommodate his lifting restriction
and his vision restriction. (R.

l0l, Pl.'s Mem. at24.) Defendant

argues that Plaintiff failed to

adequately allege a failure to accommodate claim in his EEOC Charge and, consequently, the

Court should dismiss any failure to accommodate claim Plaintiff now makes. (R. 82-1, Def.'s
Mem. at 14.) Plaintiff did fail to allege a failure to accommodate claim in his EEOC Charge.
(See R. 48-1, Ex. B, EEOC Charge.)

Plaintiff nonetheless argues that his failure to accommodate

claim is properly before the Court because it is "reasonably related" to the allegations in the
EEOC Charge. (R. 101, Pl.'s Mem. at2l-22.) The Seventh Circuit has held that"aplaintiff is
barred from raising a claim in the district court that had not been raised in his or her EEOC
charge unless the claim is reasonably related to one of the EEOC charges and can be expected to

develop from an investigation into the charges actually raised." Green v. Nat'l Steel Corp.,

Midwest Div.,197 F.3d 894, 89S (7th Cir. 1999). In his EEOC Charge, Plaintiff alleged that he
was harassed because of his disability and stated,

39

"I believe that I have

been discriminated

against because of my disability and retaliated against for engaging in protected
activity in

violation of the Americans with Disabilities Act of 1990, as amended.,, (R.
4g-1, Ex. B, EEOC
Charge at

l'2.) A discrimination

claim is distinct from a failure to accommodate claim under the

ADA' Green, 197 F.3d at 898. "Therefore, they are not like or reasonably related to
one
another, and one cannot expect a failure to accommodate claim to
develop from an investigation

into a claim that an employee was terminated because of a disability.,,
Id.; see Beard v. Don
McCue Chevrolet,lnc., No. 09

c 4218,20r2wL2930121,

at *11 (N.D. Ill. July

lg,2ol2)

(finding that plaintiff s failure to accommodate claim was
not reasonably related to his
discrimination claim); Kaplan v. New Trier Highscft., No.

(N'D' Ill' May

3l,20tl)

1

Ic

gg

l,

201

I wL

214gg36, at *3

(finding that aplaintiff s failure to accommodate claim was ..beyond

the scope of the charge of discrimination she filed with the
EEoc,,).

Plaintiff argues that he submitted

a copy

of the complaint he filed with Defendant,s

Human Resources Department to the EEOC, and that this internal
complaint should supplement
the allegations in his EEoc charge. (R.

l0l, Pl.'s Mem. at22.) written,.[a]llegations

outside

the body of the charge may be considered when it is clear that
the charging party intended the
agency to investigate the allegations." Swearnigen-El v.
Cook Cnty. Sheriff,s

852,865 (7th

cir.

2010) (quoting vela v. vill. of Sauk

Dep,t,602F.3d

vill.,2lg F.3d 66t, 664(7th Cir. 2000)).

The Court finds that it is clear that in sending the EEOC
a copy of his internal complaint,

Plaintiff intended the agency to investigate the allegations he made
in the internal complaint.
Therefore, the Court

will consider the intemal complaint as part of his EEoC Charge. But in

examining the internal complaint, the Court finds that it does
not state a charge of failure to
accommodate' Plaintiff draws the Court's attention to the part
of the internal complaint which
states, "against the weight requirements of my current position,
I have had to

40

lift

garbage cans

that weigh in excess of 100 lbs, as a result of
which I have developed [an] inguinal hernia
that is
bothersome and painful"; he argues that this quoted
language makes clear that he intended
the

EEOC to investigate a failure to accommodate
claim. (R. 101, pl.,s Mem.

at22)

The court,

however' disagrees' To establish a failure to
accommodate claim, a plaintiff must show
that:
he has a disability;

(l)

(2) the employer was aware of his disability;
and (3) the employer failed to

reasonably accommodate his disability.
sears, Roebuck & co.

,

417 F .3d

at

797.

plaintiff did not

state in the quoted language or in any other
part of the internal complaint that he
had a

lifting

restriction prescribed by his doctor. Nor
does he make clear that Defendant was
not
accommodating his doctor prescribed lifting
restriction. Rather plaintiff simply states that
he
developed a hernia from lifting heavy garbage
cans at work. Accordingly, the court
finds that

PlaintifPs failure to accommodate craim
must be dismissed.

III'

Plaintiffs Retariation craims (counts rv, vII,
and X)

In counts IV, vII, and X, Plaintiff alleges
that Defendants retaliated against him in
violation of Title vII, the ADEA, and the
ADA for filing internal complaints and a charge
of
Discrimination with the EEoc. (R. 4g,
Am. compl. flT 54, 73, g2.) As with discrimination
claims' a plaintiff may establish retaliation
claims by way of either the direct or indirect
method.
Roneyv' Ill' Dep'tofTransp.,474F.3d455,
45g(7thctu.2007)(Title yft);smithv. Lafayette
Bank

& Trust Co',674 F'3d 655, 657 (7thcir.20:2)(ADEA);
Andersonv. The Foster Grp.,52r

F' Supp' 2d 758' 7s8 (N'D' rll' 2007) (ADA).7
Here, Plaintiff
claims by way of the direct method. (R.
101, pl.'s Mem. at

seeks to prove his retaliation

ll-12,16-lg.)

To prevail using the

direct method of proof, Plaintiff must present
evidence, direct or circumstantial, showing
that:

7

Th" analysis

for retaliation claims is the same under
Title vII,
Roney,474F.3dat45g;smith,674F.3d.atesl;)"irrrrr,s2l the ADEA, and the ADA. see
F. Supp .2d,at7gg. The court
thus cites relevant case
law interchangeably.

41

(1) he engaged in a protected activity; (2) he suffered a materially adverse action by his
employer; and (3) a causal connection exists between the two. Silverman v. Bd. of Educ. of Chi.,
637

F.3d729,740 (7th Cir. 2011).8

It is undisputed that Plaintiff engaged in protected activities when he filed internal
complaints in late 2009 or early 2010 and his EEOC Charge on March 5,2010. (R. 101, Pl.'s
Mem. at 11; R. 82-1, Def.'s Mem. at 15.) Plaintiff argues that he suffered three adverse
employment actions in retaliation for filing these complaints:

(l)

Defendant failed to cross-train

or promote him; (2) Defendant did not increase his salary after his May 2010 evaluation; and (3)
Defendant terminated him. (R. 101, Pl.'s Mem. at

ll,l4.)

Defendant argues that Plaintifls

retaliation claims must fail as a matter of law because he cannot identify a causal link between
his internal complaints and EEOC Charge and any adverse employment action. (R. 82-1, Def.'s
Mem. at 15.) To establish a causal link, Plaintiff must show that his complaints were the but-for
cause of an adverse employment

action. Univ. of Tex.

Sw.

Med. Ctr. v. Nassar,133 S.Ct. 2517,

2528 (2013). In other words, to survive summary judgment, Plaintiff needs to provide enough

direct or circumstantial evidence to allow

a

jury to conclude that he suffered an adverse

employment action because of his statutorily protected activity. Hobgood, T3l F.3d at 643;

Burnell v. Gates Rubber Co.,647 F.3d704,709 (7th Cir. 2011).
Plaintiff filed his EEOC Charge on March 5,2010, and he was terminated on March I l,
2011. (R. 82-1, Def.'s Mem. at 15-16.) Defendant argues that the one-year gap between his
EEOC Charge and his termination precludes his establishing a causal link between the two.

(1d.

8 To establish
aprimafacie case of retaliation under the indirect method, Plaintiff must satisfy
the first two elements of the direct method and further show that (l) he was meeting the
employer's legitimate expectations; and (2)he was treated less favorably than a similarly
situated employee who did not engage in statutorily protected activity. Smith, 674 F.3d, at 65758; Scruggs v. Garst Seed Co.,587 F.3d 832, 838 (7th Cir. 2009). Plaintiff does not offer any
evidence to prove retaliation via the indirect method.
42

at 16') In order to establish a causal link and support an inference
of retaliatory motive, the
termination must have occurred "fairly soon after the employee's
protected expression.,,
Davidson v. Midelfort clinic, Ltd., 133 F.3d,49g,

5ll (7thcir.

interval to allow an inference of retaliatory motive

. Paluckv.

199g). one year is too long of an

Gooding Rubber Co.,22l F.3d,

1003, 1010 (7th Cir' 2000). Nevertheless, the fact
that ayearpassed between

plaintifls

protected expression and his termination does not preclude
him from proving retaliatory
discharge; 'oinstead, it means that the timing of
[his] discharge, in itself, does not support an
inference of retaliation, and
[he] must come forward with other evidence.,,

.Id.

Plaintiff argues that the evidence he presents to prove
that Defendant,s reasons for
terminating him are pretextual, as outlined in detail
above, also supports an inference

retaliation' (R' 101, Pl's Mem. at 17.) The Seventh Circuit

of

has held that evidence demonstrating

that an employer's reasons for terminating an employee
are pretextual is sufficient to create an
inference of retaliatory motive and defeat summary judgment
on a retaliatory discharge claim.

Aiayi v' Aramark Bus. servs., nnc.,336 F.3d 520,533-35 (7th
cir. 2003). plaintiff additionally
argues that Triola's regular monitoring of him
following the

inference of retaliation.

filing of his EEoc charge raises an

(Id.) Triola edited Plaintiff s performance evaluation in
May 2010

and

told chavez to include more details about Plaintiff performanc
s
e. ed.) Triola also worked
closely with Kubicki and Defendant's outside counsel
to prepare documentation on plaintiff in
the months preceding Plaintiff s termination

. (rd.) Examples of this activity include: (1) on

January 3,2011, Triola asked Kubicki for copies
of Plaintiffs recent Development Journal
entries; (2) onJanuary 13,2011, Triola told Kubicki
that he and Defendant,s counsel were

drafting a Development Joumal entry "to deal
with the attendance issue,,, and that Defendant,s
attorney would be interviewing Kubicki and Thanawutthikorn
"with the sense .this won,t end

43

well with Bob'

-

we want to be prepared"; (3) on January 20,2011, Triola asked

Thanawutthikorn to send Plaintiff s Development Joumal, restaurant schedules, and portions of
the Dear Diary to Defendant's counsel; and (4) on March

8,2}ll,

in response to Kubicki's

report that there was only one Development Joumal entry since the beginning of the year, Triola
responded, "Yah, not good." (Id. at l7-18.) Plaintiff argues that Triola's actions "suggest that
Defendant indeed began gathering documentation to justify Plaintiff s termination before the
events in the termination memo allegedly occurred." (Id. at 18.) Defendant responds that this

evidence is "nothing more than proof Triola was adequately performing his duties as Human
Resource

Director." (R. 102, Def.'s Mem. at

17.)

In addition to the evidence of Triola's monitoring, Plaintiff also offers evidence that
Chavez told other managers to "document every little thing Plaintiff did wrong', after she found

out about Plaintiff s intemal complaints. (R. 101, Pl.'s Mem. at I

l.)

And after Chavezfound

out about Plaintiff s EEOC Charge, Chavezwas o'freaking out" and "ranting" about it, and said
that Plaintiff "had to go." (1d ) Between February and March 2OlO, Chavezand other managers
made six entries in Plaintiff s Development Joumal and seventeen entries in the Oak park
Restaurant's Dear Diary about Plaintiffls alleged performance problems

. (Id. at 12.)

The parties did not provide and this Court was unable to find Seventh Circuit precedent
on the issue of increased monitoring of an employee following the filing of an EEOC Charge.
A

court in this District has held, however, that "the pronounced increase in negative reviews and
the careful scrutiny of plaintiff s performance, coupled with testimony suggesting that
management personnel were acutely aware of plaintiff s EEOC charge, is sufficient to
establish a
causal

link for plaintiff s prima facie

case of retaliatory discharg

e." Flanagan v. Office of Chief

Judge of Circuit Court of Cook Cnty.,I//., No. 06 C 1462,2007 WL2g75726,at *13 (N.D.
Ill.

44

Sept. 28, 2007) (quoting Weaver v. Casa Gallardo, lnc.,922 F.2d 1515, 1525

(llth Cir. 1991))

(the intense monitoring of plaintiff s work, which o.was clearly abnormal, bespeaks a retaliatory

motive"). Here, asin Flanagara, Plaintifls managers, who were aware of Plaintiff

s EEOC

Charge, increased their monitoring of Plaintiff s performance and increased the frequency in

which they documented his alleged deficiencies. According to Arrington, this was all done in an
effort to terminate Plaintiff. Thus, the Court finds that viewed in the light most favorable to

Plaintiff, the evidence he presents is sufficient to establish a causal link between Plaintiff

s

intemal complaints and EEOC Charge and his termination, and it therefore raises an inference of
retaliatory motive.

Plaintiff also argues that Defendant retaliated against him by denying him a raise after his
May 2010 evaluation and by denying him promotion and cross-training opportunities. (R.
Pl.'s Mem. at I l.) The Seventh Circuit has held that

a

plaintiff cannot establish

l0l,

a causal

connection where "the allegedly retaliatory conduct was merely the continuation of the conduct

giving rise to the complaints." McDonnell v. Cisneros, 84 F.3d 256,259 (7th Cir. 1996);
also Johnson v. Nordstrom, lnc.,260

F

see

.3d 727 ,735 (7th Cir. 2002). There needs to be a

"ratcheting up" of any alleged discriminatory conduct after a plaintiff files his complaints.
Cisneros,84 F.3d at259. Here, Plaintiff frled his internal complaints and EEOC Charge
precisely because he was not getting promoted or cross-trained and was not receiving a raise, and
he felt this was discriminatory treatment. (R. 101, Pl.'s Mem. at 11.) After he filed his

complaints and EEOC Charge, he continued to be denied a promotion and cross-training
opportunities and he continued to be denied a raise until November 2010. (R. 102, Def.'s Resp.
at 18-19.) Because Plaintiff has not alleged any new or increased discriminatory treatment, and

45

has only alleged the continuation of the conduct he already complained about, the Court finds no

evidence of retaliation.

Accordingly, the Court finds that Plaintiff s retaliation claims based on his termination
survive summary judgment, but his retaliation claims based on his continual denial of a raise,
promotions, and cross-training opportunities do not survive summary judgment.

Iv.

Plaintiffs State Law Retaliatory Discharge claim (count vI)
In Count VI, Plaintiff alleges that Defendant terminated him in retaliation for filing a

claim for workers' compensation benefits. (R. 48, Am. Compl.
flfl 65-67.) In Illinois it is

unlawful to terminate an employee in retaliation for exercising his rights under the Illinois
Workers' Compensation Act (IWCA). Gordon v. FedEx Freight, Inc., 674 F.3d 769,773 (7th
Cir.2012) (citing Palmateer v. Int'l Harvester Co.,42l N.E.2d g76,B7B-79 (Ill. lgSl)). A

plaintiff claiming retaliatory discharge for filing

a workers' compensation claim must show:

(l)

that he was employed by the defendant before the injury;
Q) thathe exercised a right granted by
the IWCA; and (3) that the discharge is causally related to the filing of the workers,
compensation claim. Clemons v. Mech. Devices Co.,704N.E.2d 403,406

(Ill. l99g). Here, the

first two elements are not in dispute. (R. 82-r, Def.'s Mem. at l9;R. 101, pl.,s Mem. at25.)

Plaintiff injured his hip and arm while taking out the garbage at work on Decemb er 23, 2010,
and Thanawutthikorn filed a workers' compensation claim on behalf of Plaintiff
on January 14,

2011. (R. 101, Pl.'s Mem. at24; Pl.'s Rule 56.1 Resp.
n79.) Thus, the only issue is whether

Plaintiff can establish that

a causal

relationship exists between his exercise of a right granted by

the IWCA and his termination.

The Seventh Circuit has held that in deciding motions for summary judgment on Illinois
retaliatory discharge claims, federal courts are to follow Illinois law rather than
the federal

46

McDonnell Douglas burden-shifting approach in determining whether a plaintiff has met his
burden on causation Gacekv. Am. Airlines, Inc.,614 F.3d 298, 303 (7th Cir. 2010).

Accordingly,

a

plaintiff may not survive summary judgment "merely by proving that the reasons

given by [Defendant] for firing him were unworthy of belief," as he would under the McDonnell

Douglas framework

. Id.

lnstead, to establish a causal relationship, a plaintiff "must

affirmatively show that the discharge was primarily in retaliation for his exercise of

right." Roger v. Yellow Freight

Sys., Inc. ,

2l

F

a protected

.3d 146, 149 (7th Cir. 1994) (citing Marin v. Am.

Meat Packing Co.,562 N.E.2d 282,285 (Ill. App. Ct. 1st Dist. 1990)). To do so, a plaintiff must

"proffer sufficient evidence from which

a reasonable

jury could infer that the employer was

improperly motivated." FedEx Freight,674F.3dat774 (quoting Roger,2l F.3d atl49); see

Hartleinv. Ill. Power Co.,60l N.E.2d 720,730 (Ill.1992) ("Conceming the element of
causation, the ultimate issue to be decided is the employer's motive in discharging the

employee."). Here, Plaintiff argues that the facts suggest that Defendant's motive in terminating
Plaintiff was pretextual. (R. 101, Pl.'s Mem. at25.) A pretext argument alone, however, is not
enough to establish the element of causation. Gacek,614 F.3d at 303; see Robinson v. Stanley,

No. 06 C 5158, 2011 WL 3876903, at *6 (N.D. Ill. Aug. 31,201l) (granting summary judgment
on plaintiff s state law retaliatory discharge claim because plaintiff did not provide any evidence

of causation and instead simply argued that defendants' proffered reason for terminating her
employment was a pretext for retaliatory discharge). Plaintiff offers no evidence to demonstrate
that Defendant's actual motivation for terminating him was his filing of a workers' compensation

claim as opposed to Defendant's general discriminatory animus against Plaintiff. Plaintiff
unsupported allegations of pretext, with respect to his termination for filing a workers'
compensation claim, are insufficient to survive summary judgment on this specific claim.

47

s

Plaintiff further notes that when he returned to work on February

l0,2}ll,

after

recovering from his workplace accident, he asked Thanawutthikom to be paid
for the days he
missed. (R. 101, Pl.'s Mem. at25.) He was terminated on March

tl,20ll,

and

plaintiff argues

that this short time frame between his request for compensation and his
termination raises an
inference of causation.

(Id.) The Seventh Circuit

has identified three ways recognized in

law by which an employee may exercise a right under the IWCA:

(l)

Illinois

where an employee files a

workers' compensation claim; (2) where an employee is preemptively fired prevent
to
such a

filing; and (3) where an employee merely requests and

seeks medical

attention. FedEx Freight,

674 F '3d at 773 (collecting and analyzing Illinois caselaw). Thus, requesting
compensation from
an employer for days missed is not a protected right under the
a

IWCA. plaintiff cannot establish

retaliatory discharge claim based on his request for compensation for
the time he missed work

due to his injury.

"The causality requirement calls for more than a sequential connection
at I49; see also FedEx Freight, 674

filing of Plaintiff

s

F .3d,

at

77

.,,

Roger,2l F.3d

5. Therefore, the short time frame between the

workers' compensation claim and his termination (two months)
alone is not

enough to infer that Defendant was improperly motivated. Because plaintiff
cannot satisfy the
causation element, his state law retaliatory discharge claim cannot
survive summary judgment.

48

CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment (R. 32) is

GRANTED in part and DENIED in part. The Court grants summary judgment on Count VI and
denies summary judgment on Counts I,

Count

IX.

II, III, IV, V, VII, VIII, and X. The Court dismisses

The parties are directed to exhaust all settlement possibilities for the remaining claims

prior to the next status hearing, which will be held on January 30,2014,at l0:00 a.m., to set
a

firm trial date.

ENTERED:
Chief Judge Rub6n Castillo
United States District Court

Dated: January 1512014

49