Arroyo v. Volvo Parts North America LLC
Filing
88
MEMORANDUM OPINION AND ORDER: For the reasons stated, the Court grants Defendant's motion for summary judgment 75 . Judgment will be entered in favor of Defendant Defendant Volvo Group North America, LLC and against Plaintiff LuzMaria Arroyo on all claims. Signed by the Honorable Robert M. Dow, Jr on 9/30/2014. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LUZMARIA ARROYO,
Plaintiff,
v.
VOLVO GROUP NORTH AMERICA, LLC,
d/b/a VOLVO PARTS NORTH AMERICA,
Defendant.
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Case No. 12-cv-6859
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff LuzMaria Arroyo worked at Defendant Volvo Group North America, LLC
(d/b/a Volvo Parts North America) from June 2005 until November 2011. In Plaintiff’s third
amended complaint, she alleges discrimination, retaliation, and failure to provide reasonable
accommodations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the
Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and Uniformed Services Employment and
Reemployment Rights Act, 38 U.S.C. § 4301 et seq. (“USERRA”), along with a state law claim
for intentional infliction of emotional distress. Defendant has moved for summary judgment [75]
on all counts. For the reasons stated below, the Court grants Defendant’s motion for summary
judgment [75].
I.
Background
A.
Statement of Facts
The Court has taken the relevant facts from the parties’ Local Rule (“L.R.”) 56.1
statements.
Local Rule 56.1 requires a party moving for summary judgment to submit a
statement of material facts as to which the movant contends there is no genuine issue and entitles
the movant to judgment as a matter of law. As the Seventh Circuit has stressed, facts are to be
set forth in Rule 56.1 statements, and it is not the role of the Court to parse the parties’ exhibits
to construct the facts. Judges are not “like pigs, hunting for truffles buried in briefs.” United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). “Nor are they archaeologists searching for
treasure.” Jeralds ex rel. Jeralds v. Astrue, 2010 WL 4942161, at *7 (N.D. Ill. Dec. 8, 2010)
(citing DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999)). It simply is not the court’s job to sift
through the record to find evidence to support a party’s claim. Davis v. Carter, 452 F.3d 686,
692 (7th Cir. 2006). Rather, it is “[a]n advocate’s job * * * to make it easy for the court to rule
in [her] client’s favor * * *.” Dal Pozzo v. Basic Machinery Co., Inc., 463 F.3d 609, 613 (7th
Cir. 2006).
It is the function of the Court to review carefully statements of material facts and to
eliminate from consideration any argument, conclusions, and assertions that are unsupported by
the documented evidence of record offered in support of the statement. See, e.g., Sullivan v.
Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, *2 n.2 (N.D. Ill. Apr. 10, 2006);
Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v.
Taylor, 324 F. Supp. 2d 917, 920 n.1 (N.D. Ind. 2004). Merely including facts in a responsive
memorandum is insufficient to put issues before the Court. Midwest Imports, Ltd. v. Coval, 71
F.3d 1311, 1313 (7th Cir. 1995); Malec v. Sanford, 191 F.R.D. 581, 594 (N.D. Ill. 2000). In
addition, Local Rule 56.1 requires that statements of facts contain allegations of material fact and
that factual allegations be supported by admissible record evidence. See L.R. 56.1; Malec v.
Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). Where a party improperly denies a statement
of fact by failing to provide adequate or proper record support for the denial, the Court deems
that statement of fact to be admitted.
2
In this case, some of Plaintiff’s fact statements and responses to Defendant’s fact
statements contain legal conclusions or are irrelevant to the issues at hand.
For instance,
Plaintiff’s first fact statement posits:
Within 2 months of the commencement of her employment and throughout her
employment thereafter, Volvo * * * violated the terms of USERRA and the
Americans with Disabilities Act, failed to take affirmative action to advance in
employment LuzMaria Arroyo who was suffering from posttraumatic stress
syndrome (PTSD), subjected plaintiff to a hostile work environment and
heightened scrutiny, considered terminating her during and after each deployment,
leveled unwarranted discipline against her, and ultimately terminated her.
This one fact statement alone contains numerous legal conclusions and argument. The Court’s
role is to decide if there is a question of fact as to whether Defendant violated USERRA, the
ADA, Title VII, or state law; the parties’ role is to present the Court with facts (not legal
conclusions) that support their position on the law. To the extent that either party’s statements or
responses contain legal conclusions or argument, are evasive, are irrelevant, or are not supported
by evidence in the record, they will not be considered by the Court in ruling on the summary
judgment motion.
B.
Facts
Plaintiff LuzMaria Arroyo was employed as a material handler for Volvo at its Chicago
Parts Distribution Center (the “Distribution Center”) in Joliet, Illinois, from June 13, 2005 until
she was fired on November 8, 2011. In Arroyo’s employment application, she stated that she
was a member of the U.S. Army Reserve, and Volvo hired her as a material handler with that
knowledge. Arroyo interviewed with Director of Distribution Keith Schroeder and Material
Handling Supervisors Michael Temko and Patrick Dunn. As a material handler, Arroyo was
responsible for retrieving ordered vehicle parts with a forklift and then packing those items to
3
ship to the customer on a timely basis. Beginning in January 2009, Arroyo worked the second
shift, from 4:30 p.m. to 12:30 a.m.
During Arroyo’s employment, no other employees at the Distribution Center were on
active duty and subject to military orders. Throughout her employment, Volvo granted Arroyo
leave for military activities, including military drills, training, and Yellow Ribbon events, as well
as for two extended periods of deployment: April 17, 2006 to May 7, 2007, and April 15, 2009
to August 15, 2010. When Arroyo returned from her latest deployment to Iraq in April 2010, she
used some accrued military vacation time and was released from active duty on August 15, 2010.
Arroyo then took some additional time off before returning to work on September 27, 2010.1
Upon her return, Volvo offered Arroyo a voluntary severance package, which Volvo had
previously offered to other material handlers while Arroyo was on leave in 2009.2 Arroyo
declined the offer. In sum, Arroyo received more than 900 days of military leave during six and
a half years of employment at Volvo.
Arroyo also took leave for weekend drills. Volvo modified Arroyo’s work schedule to
allow her to arrive to her shift two hours early and leave two hours early on Fridays prior to a
weekend drill.
Although Arroyo initially agreed to the modified work schedule, she later
claimed that the arrangement was unsatisfactory because it did not give her enough time to get
ready to drill. Through a mediation conducted by Colonel Tom Gorski of ESGR throughout
March and April 2011, Volvo accommodated Arroyo’s request by changing her Friday schedule
1
Arroyo nominated Schroeder for a Patriotic Employer Award through the Employer Support of the
Guard and Reserve (“ESGR”). Arroyo and ESGR Ombudsman Colonel Tom Gorski presented the award
to Schroeder at the Distribution Center in October 2010. Arroyo also arranged for the public affairs
officer from her unit to photograph the event. Arroyo had previously nominated Temko and Dunn for a
Patriotic Employer Award after returning from an earlier deployment.
2
The record reflects that in 2009, during Arroyo’s second deployment, Volvo terminated six material
handlers.
4
to 4:30 to 7:00 and allowed Arroyo to take 5.5 hours of excused military leave. Through the
mediation, Volvo also resolved issues concerning Arroyo’s health insurance coverage upon her
return to work, catch-up 401(k) contributions, and paid military leave for Yellow Ribbon events.
Throughout these multiple tours of duty, weekend drills, and annual training, Keith
Schroeder was able to find a replacement for Arroyo when she was otherwise engaged in service
for her country. However, both Schroeder and Arroyo’s supervisor, Michael Temko, questioned
human resources and management about how to handle Arroyo’s various leave requests, what
rights (such as leave, travel, and rest time) were provided under USERRA, and what information
Arroyo was required to provide to Volvo prior to or during requested leave time. Temko kept
track of Arroyo’s military schedule and her excused and unexcused absences.
All material handlers at the Distribution Center are subject to the Volvo’s attendance
policy. Pursuant to the policy, employees receive “occurrences”—either whole or fractional—
for inexcusable absences or tardiness. For each occurrence, Volvo looks back both four weeks
and six months from the date of the most recent occurrence to see if an employee has accrued
enough occurrences to warrant a step in the progressive disciplinary process. Corrective action
will be taken if an employee has two occurrences within a four week period or five occurrences
within a six month period, calculated on a rolling fiscal year. The disciplinary steps under the
attendance policy are: verbal warning, formal written warning, three-day suspension, and
termination.
Depending on how near an employee’s occurrences are to one another, an
employee may receive more than one disciplinary step at the same time, as the same occurrence
can count for purposes of multiple disciplinary steps, given the look-back periods discussed
above. If an employee has a six-month period with no occurrences, the employee’s disciplinary
“level” is reduced by one step.
5
The attendance policy has undergone periodic revision. In January 2008, the unwritten
grace period that allowed employees to punch in up to two minutes after the beginning of their
shifts was eliminated due to employee abuse. In January 2009, absences other than earned time
off (“ETO”)/vacation weeks and scheduled holidays no longer counted towards the rolling time
period. Arroyo was present for and signed for receipt of an “Employee Infosession” in January
2009 concerning policy changes.
The attendance policy is administered jointly by Temko and Schroeder.3 Temko is
responsible for documenting any occurrences for each employee on an Excel spreadsheet after
reviewing the time punch records. Temko and Schroeder are then responsible for administering
disciplinary steps under the policy. Arroyo was subject to the policy since the beginning of her
employment with Volvo. Although Volvo kept tabs on Arroyo’s military leave requests, the
record is undisputed that she never received any occurrences under the Volvo’s attendance
policy for days on which she took military leave.
For instance, on November 19, 2008,
Schroeder received communication from Arroyo’s local army unit stating that she had orders
from November 12 to November 26, which were not issued until November 14. Schroeder
expressed his frustration that if she had received these orders on November 14, then she should
have either called or faxed the orders; however, in an email to Temko, he noted that “[w]hile I
have issues with her lack of communication, we likely have no recourse due to her military
service.”
In 2009, Arroyo received a verbal warning for earning two occurrences as a result of two
no call, no shows within a four week period from October 13, 2008 to October 24, 2008. On
October 1, 2010, Arroyo punched in 22 minutes after the beginning of her shift and earned a one
3
According to Schroeder, following Volvo’s decision to eliminate the grace period policy, if a person is
late, it is documented as late regardless of whether it is one minute or one hour late. Temko believes that
being even one minute late could throw an employee’s shift off track.
6
half (0.5) occurrence under the attendance policy.4 On October 11, 2010, Arroyo punched in 20
minutes after the beginning of her shift and earned a one-half (0.5) occurrence under the
attendance policy. On October 19, 2010, Arroyo called-in absent for work and earned one (1)
occurrence under the attendance policy.
Following Arroyo’s October 19, 2010 absence,
Schroeder met with Arroyo and told her the absence would be excused if she provided a doctor’s
note. Arroyo explained that she had an upcoming health assessment on October 25, 2010, and
could ask her doctor for a note excusing the October 19th absence then. However, Arroyo never
provided such a note.
On October 29, 2010, Schroeder presented Arroyo with a Corrective Action Plan
(“CAP”) in the form of a verbal warning—the first step in the progressive disciplinary process
under the attendance policy—for the two occurrences she earned within a one-month period
from October 1, 2010 to October 19, 2010. On October 29, 2010, Arroyo punched in one minute
after the beginning of her shift. Because Arroyo had two occurrences within a one-month
period, she received a written warning, which is the second step in the disciplinary process.
Arroyo challenged this occurrence and any disciplinary action stemming from October 29, 2010,
contending that she was unaware of the change to the attendance policy that eliminated the
previous unwritten rule of the two-minute grace period.
Although Schroeder verified that
Arroyo was present for the January 2009 “Employee Infosession” mentioned above, Schroeder
made an exception and did not give Arroyo an occurrence or the second step in progressive
discipline under the attendance policy based on her one-minute transgression on October 29. On
November 4, 2010, Arroyo was provided with copies of various Volvo policies, including the
4
A late punch of one hour or less results in a one-half (0.5) occurrence.
7
attendance policy. On November 23, 2010, Arroyo punched in two minutes after the beginning
of her shift and earned a one-half (0.5) occurrence under the policy.
Arroyo was treated for service-related post-traumatic stress disorder (“PTSD”) in
December 2010 and formally diagnosed in January 2011.
LaGrange Memorial Hospital on December 23, 2010.
Arroyo went to the Adventist
She provided a note and discharge
paperwork excusing her from work for the period of December 23, 2010 through December 30,
2010.
Arroyo was subsequently approved for and took concurrent FMLA and short-term
disability (“STD”) leave from December 23, 2010 to March 22, 2011. She returned to work
from FMLA/STD leave on March 23, 2011.
In April 2011, Arroyo filled out an indirect report (a document that material handlers use
to document any time not spent picking or packing orders) and indicated that she “zoned out” for
an unknown period of time during her shift. Arroyo provided these reports on a daily basis to
Dunn—her direct supervisor at the time. Based on this comment, Volvo had safety concerns for
Arroyo and her co-workers, given that much a material handler’s job entails picking items with a
forklift up to 20 feet off the ground. Accordingly, and at Volvo’s request, John J. Koehler, M.D.,
conducted an independent medical exam (“IME”) of Arroyo on April 14, 2011.5 Based on his
evaluation of Arroyo, Dr. Koehler recommended that Arroyo be removed from all safety
sensitive work, including operation of a forklift. Based on that recommendation, Volvo removed
Arroyo from forklift duties.
Arroyo began therapy for her PTSD.
Volvo, through Regina Williams (Human
Resources Business Partner), allowed Arroyo to use partial ETO days (in two hour increments)
5
Also on April 14, 2011, Arroyo punched in ten minutes after the beginning of her shift and earned a
one-half (0.5) occurrence under the attendance policy. On both May 10 and 12, 2011, Arroyo punched in
one minute after the beginning of her shift and each time earned one-half (0.5) occurrences under the
policy. On May 27, 2011, Arroyo punched in five minutes after the beginning of her shift and earned a
one-half (0.5) occurrence under the policy.
8
to leave her shift early on Tuesday nights to attend her first set of VA therapy appointments on
Wednesday mornings from 9:00 to 11:00 a.m.; these appointments ran from April through July
2011.
On May 19, 2011, Arroyo attempted to sign up to work overtime for that upcoming
Saturday, May 21, 2011. Dunn, Schroeder, and Williams explained that Arroyo was not eligible
to work overtime on Saturdays due to her then-existing restrictions from Dr. Koehler, as the
Saturday work involved use of a forklift.6 In response, Arroyo complained via email to Williams
on May 20, 2011, that she felt discriminated against under the ADA. Arroyo arrived at the
warehouse on Saturday, May 21, 2011, even though she was not scheduled to work, and
observed employees packing boxes and strapping containers. Arroyo stayed there “[m]aybe ten
minutes max” and testified in her deposition that she does not know how long employees
perform packing duties on Saturdays. Arroyo sent a follow-up email to Williams on May 21,
2011, describing her observations and reiterating her perception that she was being discriminated
against under the ADA. Following Arroyo’s complaints of discrimination, Schroeder sent the
following email to his supervisors: “Due to the ongoing job issues and concerns with LuzMaria
Arroyo I strongly urge you to have a witness whenever you have a conversation with this
employee.” Schroeder testified that he made this recommendation due to recent communications
with Arroyo and a desire to make sure that supervisors got support before answering her
requests.
Arroyo took military leave from May 31, 2011 through July 8, 2011, and returned to
work on July 11, 2011. Shortly after her return, Dr. Koehler conducted a follow-up evaluation of
Arroyo, and, contingent upon receipt of a letter from Arroyo’s counselor, Koehler released
6
While Arroyo was on work restrictions, she worked weekday overtime.
9
Arroyo back to full-duty without restrictions. After Dr. Koehler released her to full-duty, Arroyo
periodically worked overtime, including weekend overtime.
Arroyo’s second set of PTSD therapy appointments were on Tuesday evenings from 4:00
to 5:30 p.m. and ran from July 19, 2011 through October 11, 2011. Due to rush hour traffic,
Arroyo told Schroeder that she would not be at work before 6:30 p.m. on those days. Although
Arroyo punched in after 6:30 p.m. on 11 of those Tuesdays, she did not earn any occurrences
under the Attendance Policy with respect to those dates.
On July 29, 2011, Arroyo punched in one minute after the beginning of her shift and
earned a one-half (0.5) occurrence under the policy. On August 19, 2011, Arroyo punched in
five minutes after the beginning of her shift and earned a one-half (0.5) occurrence under the
policy; the following day, she punched in one minute after the beginning of her shift and
received a one-half (0.5) occurrence under the policy.
According to Arroyo, on or about Tuesday, August 23, 2011, her co-worker, Brian
Accidentale, informed her that another co-worker (who at the time Arroyo believed to be Tracey
Adams, but subsequently learned was actually someone else) had called the police on Saturday,
August 20, 2011, because Arroyo had parked her motorcycle in a handicap spot at the
Distribution Center. Arroyo met with Dunn that same day to complain.
Dunn informed
Schroeder that Arroyo had commented that Adams is “the enemy” and “her target” and that she
could have gone to Adams and punched her in the face or cursed her out. Arroyo denies saying
anything violent related to Adams.
Schroeder and Dunn met with Arroyo on August 24, 2011, and informed her that Volvo
would not be addressing any rumors related to the motorcycle parking incident and reminded her
that threats against a colleague are against company policy and she would be subject to
10
termination if her behavior continued. The next day, Schroeder spoke with Williams and Arroyo
was provided with copies of the Workplace Violence and Harassment policies. In response, on
August 26, Arroyo sent Schroeder an email, copying Williams. In her email, Arroyo provided a
link to the Department of Labor’s (“DOL”) “America’s Heroes at Work” website that addresses
challenges facing service members returning to work with PTSD.
Arroyo also requested
numerous accommodations. Specifically, Arroyo requested the presence of human resources via
phone and either Dunn or Maureen Somersett (Schroeder’s administrative assistant) during all
discussions with Schroeder; disability awareness training for Schroeder, the Material Handler
Supervisors, and her co-workers; and a quiet place to meditate/utilize relaxation techniques
during breaks and prior to work.
On August 31, 2011, pursuant to the attendance policy, Schroeder presented Arroyo with
CAPs in the form of a formal written warning and three-day suspension—the second and third
steps in the progressive disciplinary process under the attendance policy—for earning five
occurrences within the six month period from October 19, 2010 to August 19, 2011, and for
earning five occurrences within the six month period from October 19, 2010 to August 20, 2011,
respectively. Per the revision in 2009 to the rolling period under the attendant policy, the time
that Arroyo was out on A&S, FMLA, and Military Leave was excluded in measuring the six
month periods for these CAPs.7
On September 1, 2011, Schroeder responded to Arroyo’s requests for accommodations
(copying Williams) and granted Arroyo’s request for a quiet space to meditate/utilize relaxation
7
On September 6, 2011, Temko emailed Schroeder to tell him that, in the course of Temko’s audit of the
time records in connection with the written warning and three-day suspension CAPs, he changed
Arroyo’s attendance record on her Excel sheet to reflect an excused absence for December 23, 2010.
Accordingly, Volvo removed Arroyo’s occurrence for that day. Temko explained that the adjustment
only impacted the dates of the occurrences making up Arroyo’s formal written warning (which, after the
adjustment, ran from October 11, 2010 to August 19, 2011 instead of October 19, 2010 to August 19,
2011). Since Arroyo still had five occurrences within a six-month period, the written warning CAP stood.
11
techniques prior to the beginning of her shift and during breaks. Schroeder explained that Volvo
was providing Arroyo with a private space in the warehouse operations office. Later that same
day, Arroyo emailed Williams with several additional accommodation requests: (1) a flexible
work schedule to allow her to “make up time” in case of tardiness; (2) the ability to use noise
dampening devices (such as earplugs or headphones); (3) the ability to listen to audio relaxation
devices; (4) a place to meditate or relax (which Arroyo noted had already been provided); (5) a
mentor (whom Arroyo identified as Patrick Dunn, someone she felt comfortable approaching);
(6) time off for counseling (which Arroyo noted had already been provided); (7) day-to-day
guidance and feedback; (8) the ability to use the company’s wellness program (which Arroyo
noted had already been provided); (9) the ability to take breaks during panic/anxiety attacks; (10)
disability awareness training (as noted previously); (11) all communications given to Arroyo in
writing; and (12) the ability to call a support person during panic/anxiety attacks.
In making her requests, Arroyo relied upon on a document prepared by the DOL, which
identified certain potential accommodations for employees with PTSD. Williams responded on
September 1, 2011, that Arroyo’s requests had been received and that Volvo would be back in
touch to discuss her requests after it reviewed them. On September 3, 2011, while Volvo was
considering Arroyo’s requests for accommodation, Arroyo sent an email to Dennis Sholl,
Director of the Central, West, and Mexico Regions for AB Volvo, requesting an investigation of
Schroeder for disability-based harassment.
Sholl responded by email memorandum on
September 13, 2013, explaining that Williams would be in touch with her to begin the
harassment investigation. Arroyo filed a charge of discrimination with the EEOC (Charge No.
440-2011-05756) on September 13, 2011, alleging discrimination and retaliation under the ADA.
12
After Williams and Arroyo discussed Arroyo’s accommodation requests, Williams sent
Arroyo a memo on September 16, 2011, explaining that Volvo had granted several of Arroyo’s
requested accommodations and that other accommodations were still under review. Specifically,
Volvo granted Arroyo’s requests for a place to meditate; a mentor; time off for counseling;
access to the company’s wellness program; breaks during panic/anxiety attacks; and the ability to
call a support person during panic/anxiety attacks. Requests still under review included a flexible
schedule to allow make up time in case of tardiness, the ability to use earplugs or headphones in
both ears (one ear was allowed), the ability to listen to audio relaxation devices in both ears (one
ear was allowed), day-to-day guidance and feedback, disability awareness training, and the
request for all communications to be in writing.8
On September 19, 2011, Williams notified Arroyo via email that she had been assigned to
investigate Arroyo’s harassment complaint, that she would be at the Distribution Center on
September 20, 2011, and that she would like to meet with Arroyo to begin the investigation.
That same day, Arroyo replied back and stated that it was in her “best interest to obtain legal
counsel before proceeding any further with the company.” Williams responded by email later
that day and explained that she had traveled from Atlanta to Chicago to conduct the investigation
for three days. She asked Arroyo to let her know once she obtained legal counsel and was
prepared to meet. Arroyo replied that she would be willing to answer questions by email in the
interim. On September 21, Williams emailed Arroyo some questions “to understand more
specifics about your concerns so that I can begin the investigation.” In response, Arroyo refused
to answer any questions and claimed that she had been “advised to refrain from answering any
8
On September 21, 2011, Williams sent a follow-up email to Arroyo stating which breaks would be paid
and unpaid.
13
questions until after * * * my lawyer has been given the opportunity to review my case and
advise me of my rights.”
On September 20, 2011 and September 21, 2011, Arroyo reported to work with
headphones on both ears. Due to safety concerns relating to whether she would be able to hear
forklift activity, and consistent with Volvo’s Local Music, Radio I-Pod MP3 Policy, Dunn asked
Arroyo to remove one of her headphones. When Arroyo refused, she was sent home from work.
On September 22, Williams emailed Arroyo regarding her request to wear ear plugs or noise
dampening devices in both ears and a flexible work schedule to allow make up time in case of
tardiness. Williams explained that Volvo had safety concerns about Arroyo wearing ear plugs in
both of her ears and that Volvo needed additional medical information as to whether tardiness
and the need for a flexible work schedule was related to Arroyo’s condition. Williams requested
that Arroyo obtain an IME with Dr. Koehler with respect to her dual ear plug request and provide
documentation from her own psychiatrist concerning her request for a flexible work schedule.
Williams explained that Arroyo would receive paid time off from work until this medical
documentation could be obtained
Arroyo sent Williams an email on September 26, 2011, requesting to return to work, to be
provided the accommodations she requested, and to be protected from harassment from her
coworkers and management. Arroyo did not provide any documentation from her psychiatrist
and did not attend the IME with Dr. Koehler that Volvo had scheduled. On September 27, 2011,
Williams emailed Arroyo a memo addressing her three areas of concern. First, Williams
explained that she did not have enough information to proceed with a harassment investigation
because Arroyo refused to answer the questions she provided. Williams attached a simplified
form for Arroyo to fill out. Second, Williams explained that Volvo had not denied any of
14
Arroyo’s accommodation requests and sought to continue the interactive process in good faith,
reiterating her requests for additional medical information. Finally, Williams stated that Arroyo
was allowed to return to work and use one ear plug/head phone in the interim. Later that same
day, Arroyo sent Williams an email asserting a claim for harassment against Williams because
she requested the aforementioned IME and medical documentation from Arroyo’s treating
psychiatrist. Arroyo did not complete the questionnaires that Williams provided regarding
Arroyo’s harassment allegations against Schroeder; however, on October 3, 2011, she returned to
work without wearing any headphones.
On October 10, 2011, Arroyo punched in one minute after the beginning of her shift and
earned a one-half (0.5) occurrence under the Attendance Policy. Also in October 2011, Arroyo
requested time off for her third set of PTSD therapy appointments that were scheduled on
Tuesdays from 4:00 to 5:30. Williams emailed Arroyo and explained that Volvo would
accommodate her request by allowing her to use ETO in four-hour increments and once that time
was exhausted she could attend the remainder of her therapy appointments using unpaid leave.
When Volvo provided Arroyo an accommodation of an office to use as a meditation
room prior to the beginning of her shift and during breaks, Arroyo initially parked in the
employee lot in the front of the Distribution Center and walked through the warehouse to the
office, which was located in the rear of the Distribution Center. On October 18, 2011, Arroyo
received a memo from Schroeder reminding her of Volvo’s safety shoe policy and how she
would need to wear safety shoes when walking through the facility. Thereafter, Arroyo started
to park in the rear of the Distribution Center immediately adjacent to the dock area. Rather than
put on her safety shoes and walk through the warehouse, Arroyo punched in early in the front of
the Distribution Center, exited the building, and then drove her car to park in the rear of the
15
Distribution Center to use the meditation room prior to the beginning of her shift. Arroyo then
waited until the shift start bell rang before she exited the warehouse, got back in her car, drove it
around the building to park it in the front employee lot, and then reentered the warehouse. In
taking this extra time after the shift start bell, Volvo considered Arroyo to be in violation of its
attendance policy (despite the fact that she would punch in approximately 30 minutes prior to her
shift), which required all employees to be “in the building and ready to work at the scheduled
start time and continue to work until the scheduled hours of work are completed.” Arroyo
testified in her deposition that it “never entered [her] mind” to leave the meditation room five
minutes earlier, but admitted that there was no one preventing her from leaving the room earlier.
After Arroyo started her shift late on October 31, 2011, Schroeder met with Arroyo on
November 1, 2011, to discuss her use of the meditation room and failure to begin working at her
shift start time. During that meeting, Schroeder presented a memo to Arroyo, explaining that the
use of the meditation room does not negate the need for her to be prepared to begin work when
the bell rings. Schroeder also explained that Arroyo must access the meditation room by walking
inside the warehouse, because parking in the rear of the Distribution Center posed safety
concerns.9 Prior to her meeting with Schroeder on November 1, Arroyo did not receive any
occurrences under the attendance policy for her routine of clocking in early, but not being in the
building and ready to work. On November 2, 2011, Schroeder posted a reminder notice for all
employees.
After her meeting with Schroeder, Arroyo was observed by management starting her shift
late again on November 2, 2011. Accordingly, on November 3, Schroeder gave Arroyo a CAP
in the form of a verbal warning for this incident. The CAP also provided that Arroyo would be
9
On October 24, 2011 and October 28, 2011, Schroeder sent emails to the Material Handler Supervisors
reminding them that employees should only park in the employee lot and not in the rear of the
Distribution Center next to the dock area.
16
charged a one-half (0.5) occurrence for violation of the start rule under the attendance policy.
Arroyo did not read the CAP, refused to sign the CAP, and refused to speak to the company
without her attorney present.
Arroyo was observed by management starting her shift late again on November 4, 2011,
and Schroeder presented Arroyo with a CAP in the form of a formal written warning. The CAP
also provided that Arroyo would be charged a one-half occurrence (0.5) for violation of the start
rule under the attendance policy. After preparing the November 4, 2011 CAP, Temko and
Schroeder audited Arroyo’s attendance records and determined that she had incurred five
occurrences within a six month period from April 14, 2011 to November 4, 2011. Volvo
determined that Arroyo had reached the fourth step in the progressive disciplinary process and
terminated her from her employment for violation of the attendance policy. Schroeder testified
that Arroyo was not terminated due to her on-the-job work or for insubordination.
II.
Summary Judgment Standard
Summary judgment is proper if “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). To avoid summary judgment, the opposing party must go beyond the pleadings and “set
forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (quotation omitted). A genuine issue of material fact exists if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
at 248. The party seeking summary judgment has the burden of establishing the lack of any
genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Summary judgment is proper against “a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which that party will bear the
17
burden of proof at trial.” Id. at 322. The party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a
scintilla of evidence in support of the [opposing] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [opposing party].” Anderson, 477 U.S.
at 252.
No heightened standard of summary judgment exists in employment discrimination
cases, nor is there a separate rule of civil procedure governing summary judgment in
employment cases. Alexander v. Wisconsin Dept. of Health and Family Servs., 263 F.3d 673,
681 (7th Cir. 2001) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir.
1997)). However, intent and credibility frequently are critical issues in employment cases that in
many instances are genuinely contestable and not appropriate for a court to decide on summary
judgment. See id. The Court must resolve all evidentiary conflicts in Plaintiff’s favor and
accord her the benefit of all reasonable inferences that may be drawn from the record. O’Leary
v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2013). “It is not for the courts at summary
judgment to weigh evidence or determine credibility of [a witness’s] testimony.” Id. (quoting
Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). Nevertheless, summary
judgment in favor of the defendant “is hardly unknown or, for that matter rare, in employment
discrimination cases.” Wallace, 103 F.3d at 1396.
III.
Discussion
In Plaintiff’s third amended complaint, she alleges discrimination, retaliation, and failure
to provide reasonable accommodations under Title VII, the ADA, the Rehabilitation Act of 1973,
18
and USERRA, along with a state law claim for intentional infliction of emotional distress.10
However, as pointed out by Defendant in its memorandum in support of summary judgment,
Plaintiff alleged no facts supporting a Title VII discrimination or retaliation claim in her
complaint, nor did Plaintiff pursue a Title VII administrative charge of discrimination before the
EEOC.11 Because Title VII requires plaintiffs seeking to pursue claims in federal court to first
file a charge with the EEOC (see Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 920 (7th Cir.
2000)), any Title VII claim, to the extent actually asserted, is not cognizable. The Court turns to
Plaintiff’s remaining claims.
A.
Discrimination Claims
1.
Discrimination under the ADA12
The Americans with Disabilities Act prohibits employers from taking adverse
employment actions against their employees because of a disability. Fleishman v. Cont’l Cas.
Co., 698 F.3d 598, 606 (7th Cir. 2012); see 42 U.S.C. § 12112(a). To establish a violation of the
ADA, an employee must show “1) that she is disabled; 2) that she is otherwise qualified to
perform the essential functions of the job with or without reasonable accommodation; and 3) that
the employer took an adverse job action against her because of her disability or failed to make a
10
Plaintiff also references the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., in the
jurisdiction section of her third amended complaint, but does not assert a claim for relief under the
FMLA.
11
Plaintiff does not respond to Defendant’s arguments arguing Title VII and the FMLA. Thus, Plaintiff
has waived any argument that she has cognizable claims under Title VII or the FMLA. See, e.g., C & N
Corp. v. Kane, 756 F.3d 1024, 1027 (7th Cir. 2014) (failure to make argument in response to summary
judgment motion constituted waiver; “we will not find that an argument was adequately preserved solely
because a party’s opponent defended against the argument”); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466
(7th Cir. 2010) (“Failure to respond to an argument * * * results in waiver.”).
12
Complaints alleging employment discrimination under the Rehabilitation Act are governed by the ADA
standard. See 29 U.S.C. § 794(d); Scott v. Kaneland Community Unit School District # 302, 898 F. Supp.
2d 1001 (N.D. Ill. 2012). Accordingly, the analysis with respect to Arroyo’s ADA claims applies equally
to her Rehabilitation Act claims.
19
reasonable accommodation.” Winsley v. Cook Cnty., 563 F.3d 598, 603 (7th Cir. 2009) (quoting
Stevens v. Ill. Dep’t of Transp., 210 F.3d 732, 736 (7th Cir. 2000)). Essentially the same
elements must be proven to establish a violation of the Rehabilitation Act, which additionally
requires plaintiffs to prove that they were “involved in programs receiving federal financial
assistance.” Silk v. City of Chi., 194 F.3d 788, 798 nn. 6 & 7 (7th Cir. 1999). Plaintiff has come
forward with sufficient evidence to demonstrate that she was diagnosed with PSTD and suffers
from an ADA-recognized disability.13
In an ADA discrimination case, a plaintiff may prove discrimination in one of two ways.
First, a plaintiff can put forth “direct evidence” of discrimination.
See DeLuca v. Winer
Industries, Inc., 53 F.3d 793, 797 (7th Cir. 1995). Alternatively, a plaintiff can submit “indirect
evidence” of unlawful ADA discrimination by way of the McDonnell Douglas burden-shifting
rubric, originally established for Title VII cases. Id.; Fleishman v. Continental Cas. Co., 698
F.3d 598, 604 (7th Cir. 2012) (“[W]e have continued to apply the McDonnell Douglas burdenshifting framework in summary judgment cases that proceed under the indirect method of proof
* * * .”). The burden-shifting test applies only if Arroyo relies on the indirect method of proof in
establishing her discrimination claim. See id.; see also Antonetti v. Abbott Laboratories, 563
F.3d 587, 591 (7th Cir. 2009) (“Under [the indirect] approach * * * * If Plaintiffs can
demonstrate [a prima facie case of discrimination], the burden shifts to the employer to articulate
13
Plaintiff also contends in one sentence in her response brief that she suffers from depression. See Pl.’s
Resp. at 3. It is not clear from Plaintiff’s brief whether she contends that depression is a symptom of her
PTSD or whether she is claiming that depression constitutes a separate disability. To the extent that
Plaintiff is claiming that depression is a symptom or subset of her PSTD, the Court acknowledges that
Plaintiff has demonstrated that she suffers from PTSD. However, Plaintiff has not come forward with
evidence (or even allegations) in her statement of facts that she was diagnosed with depression (apart
from any depression related to her PTSD). Merely including facts in a responsive memorandum is
insufficient to put the issue before the Court. See Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th
Cir. 1995); Malec v. Sanford, 191 F.R.D. 581, 594 (N.D.Ill.2000). Thus, while Plaintiff has demonstrated
that she suffered from PTSD, she has not come forward with sufficient evidence to show that she also
suffered from depression apart from her diagnosis of PTSD.
20
some legitimate, nondiscriminatory reason for the adverse action. If [the employer] satisfies this
burden of production, Plaintiffs must then establish that there is an issue of material fact as to
whether the employer’s proffered reasons are merely pretext for unlawful discrimination * * * in
order to survive summary judgment.”) (internal quotations and citations omitted). But if Arroyo
submits direct evidence of discrimination such that a jury could properly find a verdict in her
favor—that is, that genuine issues of material fact exist with respect to each element that she will
be required to prove at trial—that’s the end of the inquiry, and Defendant’s summary judgment
motion must be denied. See Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 683-84 (7th Cir.
2014).
With respect to her direct method argument, Arroyo’s one-sentence argument states:
“Plaintiff has countless emails sent among Volvo management and staff that illustrate[] a
convincing mosaic that they were intentionally discriminating against her because of her
disability.” See Pl.’s Resp. at 7-8. First, Arroyo does not cite to any specific emails in support
of her argument.
In response to Defendant’s argument that she does not have any direct
evidence of discrimination, it is Plaintiff’s obligation to come forward with sufficient evidence to
support a claim (see Modrowski v. Pigatto, 712 F.3d 1166, 1167–68, 1170–71 (7th Cir. 2013)
(explaining that district court must grant summary judgment for moving party if, after moving
party points to absence of evidence supporting opponent's case, opponent fails to produce
evidence from which jury reasonably could find in her favor on material issues for which she
bears burden of persuasion)), not the Court’s job to sift through the record to find the evidence
(see Davis v. Carter, 452 F.3d 686, 692 (7th Cir. 2006)). Simply referring to countless emails,
but not identifying a single one, does not satisfy Plaintiff’s obligation.
21
Further, the emails referenced in the parties’ fact statements demonstrate an awareness of
Plaintiff’s rights as an active service member, as well as discussions about the company’s rights
and obligations in relation to Arroyo’s military leave and PSTD, not discrimination. The emails
evince efforts on the part of Volvo to ensure that its employees were aware of Arroyo’s rights
and sensitive to her military leave requests; to work with Arroyo to make sure that she was
providing her military orders and that her excused absences were properly considered as such; to
allow her to attend her therapy appointments for her PTSD; and also to provide several requested
accommodations while Arroyo worked at the Distribution Center. At best, the emails reveal
Volvo’s interest in keeping abreast of Arroyo’s military status and not running afoul of USERRA
and the ADA, while holding Arroyo accountable for company policies when she was not on
leave. Moreover, these emails affirmatively show that Volvo took no adverse employment
action against Arroyo as a result of these discussions. Cf. Breneisen v. Motorola, Inc., 512 F.3d
972, 981-82 (7th Cir. 2008) (concluding that a supervisor’s comments that expressed frustration
with employees’ taking medical leave, but that resulted in no loss of job benefits, were not
materially adverse).
In short, Plaintiff has not come forward with “near-admissions” of
discrimination by the employer or a convincing mosaic of circumstantial evidence that disability
discrimination motivated Defendant’s decision to terminate Plaintiff’s employment. See
also Abuelyaman v. Ill. State Univ.,667 F.3d 800, 809 (7th Cir. 2011).
Turning to the indirect method, Plaintiff preliminarily argues that she was meeting
Volvo’s legitimate expectations because “the only reason for her termination was because Volvo
management had determined that she had violated the Absenteeism Attendance Policy.”14 See
14
The Seventh Circuit has counseled that where a plaintiff has not met her burden of showing that a
defendant’s explanations are merely a pretext for discrimination, it is not necessary for a court to decide
whether the plaintiff also established a prima facie case. See Holmberg v. Baxter Healthcare Corp., 901
F.2d 1387, 1391 (7th Cir. 1990); see also Box v. A & P Tea Co., 772 F.2d 1372, 1378 (7th Cir.
22
Pl.’s Resp. at 8. But Plaintiff’s argument misses the point. Attendance at a job site is a basic
requirement of most jobs, and the Seventh Circuit has held that an individual with “erratic,
unexplained absences” is not a qualified individual with a disability for purposes of the ADA.
See Waggoner v. Olin Corporation, 169 F.3d 481, 484-85 (7th Cir. 1999).15 Not meeting an
employer’s attendance guidelines equates to not meeting the employer’s legitimate expectations.
See, e.g., Contreras v. Suncast Corp., 237 F.3d 756, 760-61 (7th Cir. 2001) (holding that an
employee failed to meet his employer’s legitimate expectations by, among other things, incurring
eight attendance violations).
Arroyo argues that she was meeting Volvo’s legitimate
expectations because she “had not punched in late and was not tardy when she was terminated
for violating Volvo’s attendance policy.” See Pl.’s Resp. at 9. Arroyo relies on this distinction
without addressing the undisputed evidence that Volvo determined that she started her shift late
on November 4, 2011, despite having punched in timely. This is because Arroyo would punch in
prior to going to the meditation room (provided to her as an accommodation), stay in the
mediation room until the shift start bell rang, then leave the room, walk to her car, drive around
the side of the building to re-park her car, and then reenter the warehouse. Under any definition
of being “in the building and ready to work at the scheduled start time,” this would not suffice.
It was not unreasonable for Volvo to expect Plaintiff to leave the meditation room in sufficient
1985) (moving directly to third step of McDonnell Douglas approach where defendant articulated and
offered proof of a legitimate, nondiscriminatory reason for adverse employment action).
15
It is unclear from the operative complaint whether Arroyo is asserting a separate discrimination claim
with regard to her request to work overtime on May 21, 2011. She appears to predominantly rely upon
this incident as the basis of her protected activity for her retaliation claim. However, to the extent that
Plaintiff is asserting a discrimination claim based on this request, her claim fails. The record is clear that
Plaintiff was on work restrictions at the time that she requested weekend overtime and could not use a
forklift. Thus, she was not a qualified individual with respect to her request to work overtime on May 21,
2011, as using a forklift was a requirement for the weekend position.
23
time to be ready to work at her start time. In taking advantage of the accommodation provided to
her, Plaintiff was not meeting her employer’s legitimate expectations.
Arroyo’s argument that she was a qualified individual with a disability—pointing out that
she had “substantial documentation from doctors, emergency room visits and military orders for
her absences”—similarly misses the mark.
Arroyo was not disciplined for those excused
absences—in fact, she was never disciplined or given an occurrence for any time she missed due
to counseling, treatment for her PSTD, or her service in the military; rather, she was disciplined
for her unexcused tardies and absences. See Lewis v. Caterpillar, Inc., 367 Fed. Appx. 683, at
*2 (7th Cir. Mar. 8, 2010) (“Failure to arrive for work on time—or at all—is not satisfactory
performance * * * therefore [plaintiff] was not meeting the employer’s legitimate
expectations.”).
Plaintiff also contends that she “can prove that similarly situated employees without a
disability were treated more favorably,” but she has not identified any other employees who were
not disciplined for tardiness or unexcused absences.
While it is undisputed that Volvo
management did not have any charts or spreadsheets to keep track of military orders for other
employees at the Distribution Center, Arroyo was the only active duty reservist employed at the
time. Given that Plaintiff was provided with more than 900 days of military leave during her
time at Volvo, it was not unreasonable for Volvo to keep track of her leave requests. Also, it is
undisputed that Volvo maintains spreadsheets for all material handlers in monitoring tardiness
and absences generally under the attendance policy.16 Volvo has come forward with undisputed
evidence that numerous employees, aside from Arroyo, have received occurrences and steps in
the disciplinary process for punching in two minutes or less after the beginning of their shifts.
16
The record also reflects that Volvo terminated six material handlers during Plaintiff’s second
deployment in 2009.
24
See Schroeder Aff. ¶ 9, Ex. 7 (Corrective Action Plans for all material handlers other than
Arroyo who received any disciplinary action under the attendance policy from 2008 through
2012). In short, Plaintiff has not shown that similarly-situated, nondisabled employees were
treated more favorably than her.
Volvo has articulated a legitimate non-discriminatory reason for Arroyo’s termination
(violation of the attendance policy). Additionally, Volvo has come forward with evidence that it
would have taken the same action even if Arroyo did not have PSTD or was not in the military.
Since Defendant has put forth a non-discriminatory explanation for its termination of Plaintiff,
the burden now shifts to Plaintiff to prove that the bias-neutral reason proffered by Defendant
was a pretext or an explanation designed to obscure the unlawful discriminatory employment
action. Emmel v. Coca–Cola Bottling Co. of Chicago, 95 F.3d 627, 629 (7th Cir. 1996). In order
to avoid summary judgment, a plaintiff must show that the reason given is unworthy of credence.
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). To accomplish this
requirement, a plaintiff must provide evidence to prove that the defendant’s reasons were either
factually baseless, were not the actual motivation for the action, or were insufficient to motivate
the action. Gordon v. United Airlines, Inc.,246 F.3d 878, 888–89 (7th Cir. 2001). A plaintiff
shows that a reason is pretextual “directly by persuading the court that a discriminatory reason
more likely motivated the [defendant] or indirectly by showing that the [defendant’s] proffered
explanation is unworthy of credence.”
Blise v. Antaramian, 409 F.3d 861, 867 (7th Cir.
2005) (citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). Plaintiff
must “specifically refute facts which allegedly support the employer’s proffered reasons”;
conclusory statements about an employer’s prejudice are insufficient to establish pretext.
25
Alexander v. CIT Tech. Fin. Servs., Inc., 217 F. Supp. 2d 867, 890 (N.D. Ill. 2002) (emphasis in
original).
In an attempt to show pretext, Plaintiff points to a number of different incidents. Arroyo
first cites to a series of emails exchanged in November 2008 when there was a delay with Arroyo
providing her military orders to Volvo. Next, she cites to portions of her affidavit detailing her
hospitalization in December 2010, when Schroeder was seeking guidance from HR on how to
handle any discipline for her absences, given that Arroyo was going to exceed the cap of five
excused days. As Arroyo concedes (but omits from her response brief), no such discipline ever
occurred, because once Volvo was aware of the reason for her hospitalization and was given
documentation, she was subsequently approved for FMLA and short-term disability leave
retroactive to December 23, 2010. And, as noted previously, Plaintiff was never disciplined or
given an occurrence for any time she missed due to counseling, treatment for PSTD, or her
service in the military. That Volvo required her to provide documentation to support her leave
time prior to excusing her leave can hardly be considered a pretext for discrimination.
Next, she claims that when she requested accommodation, “Schroeder and Williams
consistently rejected her attempts to discuss what would help minimize her affects from PTSD.”
As detailed in the fact section, Plaintiff’s argument does not find support in the record. Instead,
the record is replete with instances in which Volvo provided requested accommodations: (1) use
of a meditation room prior to her shift; (2) a mentor; (3) time off for counseling; (4) access to the
company’s wellness program; (5) breaks during panic/anxiety attacks; and (6) the ability to call a
support person during panic/anxiety attacks. They also told her that the following requests were
still under review: flexible schedule to allow make up time in case of tardiness, the ability to use
earplugs or headphones in both ears (one ear was allowed), the ability to listen to audio
26
relaxation devices in both ears (one ear was allowed), day-to-day guidance and feedback,
disability awareness training, and the request for all communications to be in writing.
In
response to multiple efforts to engage Plaintiff in dialogue about those requests, Plaintiff
declined to speak with the company and notified them that she was seeking the assistance of
counsel. She also refused to provide medical documentation to support certain of those requests.
In light of the record, Plaintiff’s contention that her supervisors failed to minimize the effects of
her PSTD does not withstand scrutiny.
The record also reflects that, to the extent that Volvo exercised subjective judgment in
applying its attendance policy, its discretion in many instances benefitted Arroyo. Specifically,
the evidence demonstrates that: (1) Schroeder allowed Arroyo to bring in a doctor’s note to
excuse her October 19, 2010 absence (although Arroyo never provided such a note); (2)
Schroeder deviated from the attendance policy in Arroyo’s favor when he excused Arroyo’s late
punch on October 29, 2010, giving her the benefit of the doubt in response to her argument that
she was unaware of the elimination of the two-minute grace period; (3) Arroyo’s attendance
record was updated in September 2011 to excuse her absence on December 23, 2010; and (4)
Arroyo, who already was provided with a revised schedule to account for her counseling
sessions, still punched in after 6:30 p.m. on 11 different Tuesday evenings on which she had VA
therapy appointments, but earned no occurrences with respect to those days.
Further, in
November 2011, Schroeder met with Arroyo to discuss the need to begin work at the shift start
bell and that her use of the meditation room prior to her shift did not negate her responsibility. It
was only after Arroyo ignored his instructions that she earned the final two one-half (0.5)
occurrences that ultimately resulted in her termination.
27
In sum, Plaintiff has not come forward with sufficient evidence to establish that Volvo’s
reason for terminating her was a pretext for disability discrimination. Rather, the facts described
above indicate that Volvo had a legitimate business reason—multiple attendance policy
violations—to terminate Arroyo’s employment, and that it was Arroyo’s tardiness, not her
military service, that led to her termination.
2.
Under USERRA
Enacted in 1994, USERRA is the latest in a series of veterans’ employment rights laws,
replacing its most immediate predecessor, the Veterans’ Reemployment Rights Act (“VRRA”) of
1974. 20 C.F.R. § 1002.2. The purposes of USERRA are: “(1) to encourage noncareer service
in the uniformed services * * *; (2) to minimize the disruption to the lives of persons performing
service in the uniformed services * * * by providing for the prompt reemployment of such
persons upon their completion of such service; and (3) to prohibit discrimination against persons
because of their service in the uniformed services.”
38 U.S.C. § 4301(a).
“In
enacting USERRA, Congress emphasized USERRA’s continuity with the VRRA * * * and that
the large body of case law that had developed under [earlier] statutes remained in full force and
effect, to the extent it is consistent with USERRA.” 20 C.F.R. § 1002.2.
USERRA affords
broad
protections
to
service
members
against
employment
discrimination, providing that members “shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of employment by an employer on the basis
of that membership * * *.” 38 U.S.C. 4311(a).
A “benefit of employment” means “any
advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work
performed) that accrues by reason of an employment contract or agreement or an employer
policy, plan, or practice and includes * * * * the opportunity to select work hours or location of
28
employment.” Id. § 4303(2).
In order to allege a violation of USERRA, a plaintiff must
establish that she was subject to an adverse employment action and that her military service was
a motivating factor in that action. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1190 (2011). That
Plaintiff in this case was subject to an adverse employment action—termination—is undisputed.
Under the burden-shifting framework of § 4311, a plaintiff makes out a prima facie case of
discrimination by showing that his service membership was “a motivating factor in the
employer’s action.” Crews v. City of Mt. Vernon, 567 F.3d 860, 864-65 (7th Cir. 2009). The
employer must then “prove that the action would have been taken in the absence of such
membership.” Id.
Plaintiff’s USERRA discrimination theory is that her termination for violation of Volvo’s
attendance policy in November 2011 was a pretext that Volvo seized upon after spending over
six years “looking for a way” to terminate her. In support of her argument, she cites to numerous
internal email communications between Volvo management and human resources over the years,
which discuss the company’s rights and obligations in relation to Arroyo’s military leave.
Arroyo contends that these emails equate to military animus.
She also claims that Volvo
selectively enforced certain company rules against her and did not provide her with requested
accommodations.
As discussed above, the emails referenced by Arroyo reveal both Volvo’s interest in
keeping apprised of Arroyo’s military status and in holding Arroyo accountable for company
policies when not on leave. Had Volvo penalized Plaintiff for taking military leave, these emails
may take on a more negative connotation.
But they did not.
Moreover, these emails
affirmatively show that Volvo took no adverse employment action against Arroyo as a result of
these discussions. Cf. Breneisen v. Motorola, Inc., 512 F.3d 972, 981-82 (7th Cir. 2008)
29
(concluding that a supervisor’s comments that expressed frustration with employees’ taking
medical leave, but that resulted in no loss of job benefits, were not materially adverse). Arroyo
does not dispute (i) that Volvo gave her more than 900 days of military leave during her six and
a half year period of employment; (ii) that after her return from her second overseas deployment,
Volvo accommodated her request for a modified Friday work schedule prior to drill weekends;
and (iii) that she did not receive any occurrences under the Attendance Policy for days on which
she took military leave. The record also reflects that in 2009, during her second deployment
while employed at Volvo, Volvo was forced to terminate six material handlers. What Volvo
refused to do was accommodate her recurrent tardiness. Again, if Volvo had penalized Plaintiff
and not others for being late, then Volvo’s actions might evince a discriminatory animus. But
Volvo has come forward with undisputed evidence that it similarly penalized other employees
for being minutes late to work. Volvo’s decision to hold employees to a strict start time is within
its discretion and cannot serve as the basis for Plaintiff’s USERRA discrimination claim. For
these reasons, as well as reasons stated in analyzing Plaintiff’s ADA discrimination claim,
Plaintiff’s claim of discrimination under USERRA fails.
B.
Retaliation Claims
The ADA prohibits employers from retaliating against employees who assert their right
under the Act to be free from discrimination. 42 U.S.C. § 12203(a). Employers are forbidden
from retaliating against employees who raise ADA claims regardless of whether the initial
claims of discrimination are meritless. Squibb v. Mem'l Med. Ctr., 497 F.3d 775, 786 (7th Cir.
2007). As in the discrimination context, a plaintiff can establish a valid case of retaliation using
either the direct or indirect method of proof. Kersting v. Wal–Mart Stores, Inc., 250 F.3d 1109,
1117 (7th Cir. 2001). To establish a case of retaliation under the direct method of proof, a
30
plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she suffered an
adverse action; and (3) a causal connection between the two exists. Dickerson v. Board of
Trustees of Comm. College Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). Under the indirect,
burden-shifting method for retaliation claims, a plaintiff must demonstrate that she (1) engaged
in protected activity; (2) was performing her job satisfactorily; and (3) was singled out for an
adverse employment action that similarly situated employees who did not engage in protected
activity did not suffer. Id. Once a plaintiff satisfies her initial burden, the burden then shifts to
the defendant to present a non-invidious reason for the adverse employment action. If the
defendant meets this burden, the plaintiff must then demonstrate that the defendant’s proffered
reason was pretextual. See id.; Jasmantas v. Subaru–Isuzu Auto., Inc., 139 F.3d 1155, 1157 (7th
Cir. 1998).
As a threshold matter, Defendant points out that Arroyo does not allege that she engaged
in any protected activity under USERRA. In her third amended complaint, Arroyo identifies
three dates on which she engaged in protected activity: May 20, 2011, August 21, 2011, and
September 13, 2011. May 20, 2011, was around the time that Arroyo attempted to sign up to
work voluntary Saturday overtime on May 21, 2011. There is no evidence of any protected
activity on August 21, 2011; however, Arroyo requested accommodations for her disability on
August 26, 2011 and September 1, 2011. Finally, Arroyo filed a charge of discrimination with
the EEOC on September 13, 2011, alleging discrimination and retaliation under the ADA. Thus,
it appears as if all of her alleged protected activity arises under the ADA rather than USERRA.
Arroyo does not rebut Volvo’s argument that she did not allege that she engaged in any distinct
protected activity under USERRA.
Instead, she contends that “Volvo’s management was
consistently seeking ways to terminate or discipline Arroyo for exercising her military rights and
31
obligations.” See Pl.’s Resp. at 10-11. This is essentially Arroyo’s USERRA discrimination
claim with no further factual explanation. Thus, the same standard as discussed with respect to
Arroyo’s USERRA discrimination claim applies and the Court’s analysis of her USERRA
discrimination claim applies to her retaliation claim. There simply is insufficient evidence that
Volvo sought to terminate Arroyo for exercising her military rights and obligations.
Turning to her claim under the ADA, for purposes of summary judgment, Volvo does not
dispute that Arroyo engaged in protected activity and that she suffered an adverse employment
action (her termination). Instead, Volvo contends that her retaliation claim fails because she
cannot show a causal link between the two. As previously set forth, the Court has already
concluded that (i) Plaintiff’s recurrent tardiness prevented her from performing her job
satisfactorily and (ii) there is no evidence that she was singled out for an adverse employment
action that similarly situated employees did not suffer. Thus, Plaintiff must show a causal
connection between her protected activity and her termination in order to proceed with her
retaliation claim.
Volvo began to discipline Plaintiff under the attendance policy in October 2010—prior to
any allegation of protected activity. That Volvo continued to consistently discipline her for
tardiness after her protected activity does not create an inference of a causal link between the
protected activity and her discipline; rather, it demonstrates that Volvo continued to implement
its attendance policy, which it had the right to do. See, e.g., Soileau v. Guilford of Maine, Inc.,
105 F.3d 12, 16 (1st Cir. 1997) (before plaintiff requested disability accommodation, plaintiff
had been disciplined and warned of discharge if his performance did not improve; although
discharge followed soon after his accommodation request, temporal proximity alone was not
enough to sustain inference of retaliation). Additionally, Arroyo’s protected activity does not
32
insulate her from continued discipline under the attendance policy. See, e.g., Hall v. Bodine Elec.
Co., 276 F.3d 345, 359 (7th Cir. 2002) (“[A]n employee’s complaint of harassment does not
immunize her from being subsequently disciplined or terminated for inappropriate workplace
behavior.”) (overruled on other grounds). Again, if Plaintiff had been selectively disciplined for
tardiness after engaging in protected activity, this would be a different case. But she was not,
and in fact, the record clearly shows that other employees were similarly disciplined for
attendance infractions.
In her response brief, Plaintiff contends that her protected activity is both that “she made
it clear to Schroeder that she thought she was being discriminated against because of her
disability” and that she complained to Sholl that Schroeder was harassing her. See Pl.’s Resp. at
11. Arroyo’s complaint to Sholl occurred on September 3, 2011, when Arroyo sent an email to
Sholl. The temporal distance between this complaint and her termination more than two months
later is likely too remote to sustain any inference of a causal link. See, e.g., EEOC v. Yellow
Freight System, Inc., 253 F.3d 943, 952-53 (7th Cir. 2011) (holding that six weeks between filing
ADA charge and plaintiff’s termination is insufficient to establish retaliation). However, during
that time, Arroyo also incurred several more attendance infractions and thus Volvo had a
legitimate basis for its termination decision; Arroyo’s protected activity does not change that
fact.
Arroyo also cites a quote from Williams to Schroeder that “we could be violating the
ADA.” See Pl.’s Resp. at 11. The content of the quote shows that Williams emailed Schroeder
on July 11, 2011, and clarified that Arroyo was allowed to work overtime during the week if
there was work for her to do, distinguishing that scenario from when Arroyo was previously
ineligible to work Saturday overtime due to no work being available in light of her job
33
restrictions at the time. Arroyo has conceded that she periodically worked overtime after her job
restrictions were lifted. Putting Williams’s quote in context shows that Williams was advising
Schroeder of Plaintiff’s rights, not seeking to retaliate against her. Additionally, Schoeder’s
inquiry into Plaintiff’s overtime request is too remote in time to her termination to establish any
causal link. See, e.g., Yellow Freight System, Inc., 253 F.3d at 952-53.
Finally, Plaintiff alleges that Volvo retaliated against her by “continually refusing” to
provide reasonable accommodations and “otherwise harassing” her. See Compl. at ¶ 132.
However, as discussed above, the record reflects that Volvo provided various accommodations to
Arroyo and attempted to engage in an interactive process with respect to further requests even
after Arroyo filed an the EEOC Charge. When Williams attempted to engage Arroyo in the
process, Arroyo noted in writing that it was in her “best interest to obtain legal counsel before
proceeding any further with the company.” Williams then asked Arroyo to let her know once
she obtained legal counsel and was prepared to meet. Although Arroyo replied that she would be
willing to answer questions by email in the interim, when Williams emailed Arroyo some
questions on September 21, 2011, “to understand more specifics about your concerns so that I
can begin the investigation,” Arroyo refused to answer any questions and claimed that she had
been “advised to refrain from answering any questions until after * * * my lawyer has been given
the opportunity to review my case and advise me of my rights.” Additionally, Arroyo’s claim
that Schroeder harassed her when he gave her a copy of the Workplace Violence and Harassment
policies in response to the Tracey Adams incident occurred before her accommodation requests
on August 26, 2011 and September 1, 2011. Thereafter, as set forth above, Volvo requested
information from Arroyo to begin its investigation—information that Arroyo refused to provide.
In short, the evidence demonstrates that Volvo went through the proper channels upon receiving
34
Plaintiff’s EEOC claim and requests for accommodation and did not retaliate against Plaintiff for
her complaints.
C.
Failure to Accommodate17
In her third amended complaint, Arroyo identifies four accommodations that she
contends were denied: (1) time-off from work so that she could safety travel to and from
military obligations and adequately perform for military duties; (2) allowing her time to attend
her PTSD therapy sessions; (3) allowing her to work overtime on a machine other than the
forklift; and (4) allowing her time to put on her protective gear prior to starting her shift.18 In her
response brief, Arroyo does not rebut the fact that numerous accommodations were given to her
nor does she address Volvo’s arguments with respect to these four accommodations. Instead, she
points to other incidents over the course of her employment—including that she provided
information about USERRA to Volvo, that she underwent an IME at Volvo’s request, that she
requested an investigation into Schroeder’s alleged disability-based harassment, and that she
filed a charge of discrimination with the EEOC—as a basis for her failure-to-accommodate
claim. In the interest of completeness, the Court addresses the initial four accommodations
(despite Plaintiff’s failure to rebut Defendant’s arguments) as well as the contentions in her
response brief.
Time off from work to travel to and from military duties is a right protected by USERRA,
rather than an accommodation. See Sandoval v. City of Chicago, 560 F.3d 703 (7th Cir. 2009)
17
The Court has previously discussed aspects of Volvo’s alleged failure to accommodate in analyzing
Plaintiff’s discrimination and retaliation claims and incorporates that analysis here.
18
Arroyo does not point to Volvo’s refusal to allow her to make up time in case of tardiness as part of her
claim—nor would the case law support such a claim. See, e.g., Waggoner, 169 F.3d at 485 (7th Cir.
1999) (employer is not required to tolerate erratic, unreliable attendance); Earl v. Mervyns, Inc., 207 F.3d
1361, 1367 (11th Cir. 2000) (flexible schedule that would allow employee to clock in at whatever time
she wanted and make up time at end of shift was not reasonable accommodation).
35
(noting that 38 U.S.C. § 4311(a) does not require an accommodation but only prohibits
discrimination).
In any event, the record reflects that Volvo always provided Arroyo the
statutorily-required time to report back to work after her military service. See 38 U.S.C. § 4312.
After her last deployment, Arroyo and Volvo also discussed the time that she needed off from
work prior to her weekend drills. USERRA is silent on this issue and requires an employer to
“reasonably accommodate” an employee on a case-by-case basis. The record reflects that Volvo
first discussed the issue with Arroyo one-on-one and then mediated with Colonial Gorski of the
ESGR. In any event, after the parties mediated the issue, it is undisputed that Plaintiff received
the necessary time off to travel to and meet her obligations with respect to her weekend drills.
Second, Arroyo’s contention that Volvo did not allow her time to attend her PTSD
therapy sessions is belied by the record.
Volvo allowed Arroyo to use ETO in two-hour
increments on the Tuesdays before her Wednesday morning sessions that ran from April through
July 2011; allowed her time off from work to attend another set of therapy appointments that ran
from July through October 2011 (and did not credit her with attendance occurrences on
numerous evenings that she was late reporting to work); and allowed her to use ETO (or unpaid
leave once exhausted) for further therapy appointments that were scheduled for Tuesday
evenings starting in October 2011.
Third, Volvo had no obligation to accommodate Arroyo’s request to work voluntary
Saturday overtime on May 21, 2011, due to her then-existing work restrictions and the
unavailability of work that did not involve use of a forklift. See, e.g., Hansen v. Henderson, 233
F.3d 521, 523 (7th Cir. 2000) (noting that there is no duty to manufacture a job that will enable a
disabled worker to work despite his disability). It is undisputed that Arroyo worked weekday
36
overtime while the restrictions were in place and worked weekend overtime after her restrictions
were lifted.
Arroyo also contends that Volvo did not allow her time to put on her protective gear prior
to starting her shift. She has repeatedly claimed that she was disciplined when she attempted to
use the meditation room that Volvo granted her as an accommodation, but in doing so, she
ignores both the scope of the accommodation itself and the fact that she was disciplined for
starting her shift late in violation of the attendance policy—not for use of the mediation room.
Volvo granted Arroyo use of a space in the warehouse operations office for her to meditate prior
to the start of her shift and during breaks. When Arroyo refused to put on her safety shoes to
access the space by walking through the warehouse, she began to punch in early in the front of
the Distribution Center, exit the building, and then drive her car to park in the rear of the
Distribution Center to use the mediation room prior to the beginning of her shift. She then
waited until the shift start bell rang before she exited the warehouse, got back in her car, drove it
around the building to park it in the front employee lot, and then reentered the warehouse. Yet
she was not disciplined for this behavior (which caused her to start her shift late) until after she
was warned verbally and in writing that such behavior was in violation of company policy. In
fact, Schroeder explained that the use of the meditation room did not negate the need to be
prepared to work when the bell rang and that parking in the rear of the Distribution Center posed
safety concerns. Arroyo—just like any other material hander—had to make time to put on her
safety shoes prior to her shift and to arrive at her shift on time. Her failure to do so is not a
failure on the part of Volvo to accommodate her. See Brunker v. Schwan’s Home Serv., 583
F.3d 1004, 1009 (7th Cir. 2009) (employer did not have to provide plaintiff’s “ideal”
accommodation).
37
Plaintiff contends that “Volvo halted all attempts to determine reasonable
accommodations for Arroyo’s disability.” See Pl.’s Resp. at 14. First, as set forth above, Volvo
made numerous accommodations for Plaintiff. In regard to accommodation requests that were
still under consideration when she was terminated, the record reflects that Plaintiff in fact halted
attempts to resolve the outstanding accommodation issues. The evidence includes numerous
emails exchanged between Arroyo, Schroeder, and Williams addressing Arroyo’s requests and
providing updates on which requests were granted and which were still under consideration.
Then, when Williams asked Plaintiff to undergo an IME to support her dual ear plug request and
requested that Plaintiff provide medical documentation from her treating psychiatrist relating to
her request to make up time in case of tardiness, Plaintiff refused to do either and asserted a
harassment claim against Williams. While this was going on, Volvo paid Arroyo for seven days
that she did not work while Volvo awaited her decision as to whether she would attend an IME
for her own requested accommodation. Patricia Dunford, Vice President of Human Resources,
also responded to Plaintiff’s inquires about why she needed to submit to an IME and provide
medical documentation for certain requests and told Plaintiff that she could wear one earphone
while the issues were being resolved. After Dunford’s response, Plaintiff returned to work
without wearing any headphones. Based on the foregoing, the record is clear that Volvo did not
halt attempt to determine reasonable accommodations and in fact attempted to engage Plaintiff in
an interactive process regarding those requests. See, e.g., Beck v. Univ. of Wisconsin Bd. of
Regents, 75 F.3d 1130, 1136 (7th Cir. 1996) (holding that plaintiff’s failure to sign release
granting employer ability to investigate her alleged need for accommodation resulted in
breakdown of interactive process and precluded her failure to accommodate claim).
38
In sum, Volvo provided numerous accommodations to Plaintiff, including a modified
Friday work schedule for those weeks she had weekend drill duty, time off to attend VA therapy
appointments using ETO in fractional day increments or having the time excused (including not
giving Arroyo any occurrences on evenings she arrived to work late), an office in which to
meditate prior to her shift and during breaks, a mentor, access to the company’s wellness
program, breaks during panic/anxiety attacks, the ability call a support person during
panic/anxiety attacks, and use of ear plugs or noise dampening devices in one ear. Volvo also
was in the process of reviewing several additional requests when Plaintiff declined to meet with
Williams and instead filed a harassment claim against Williams and refused to provide requested
documentation and submit to an IME. These facts simply do not give rise to a failure to
accommodate claim.
D.
Intentional Infliction of Emotional Distress19
Arroyo’s final claim is for intentional infliction of emotional distress (“IIED”). To
establish a claim for intentional infliction of emotional distress under Illinois state law, a plaintiff
must show: “(1) the defendant’s conduct was extreme and outrageous; (2) the defendant either
intended to inflict severe emotional distress or knew that there was a high probability that its
conduct would do so; and (3) the defendant’s conduct actually caused severe emotional distress.”
19
Ordinarily, the Court would relinquish jurisdiction over any remaining state law claims under 28
U.S.C. § 1367(c)(3), having dismissed all of the federal claims short of trial. However, the Seventh
Circuit has identified several exceptions to the presumption of the relinquishment of state claims,
including where the record has rendered it obvious how those claims should be decided. See Williams
Electronics Games, Inc. v. Garrity, 479 F.3d 904, 907 (7th Cir. 2007); Sellars v. City of Gary, 453 F.3d
848, 852 (7th Cir. 2006); see also Young-Smith v. Holt, 2014 WL 4699479, at *3 (7th Cir. 2014). Here,
the record reflects that disposition of Plaintiff’s IIED claim is not a close call. Additionally,
considerations of judicial efficiency counsel toward retention of jurisdiction. See Miller Aviation v.
Milwaukee Cnty. Bd. of Supervisors, 273 F.3d 722, 731 (7th Cir. 2001). This case has been pending since
2012. To fragment the state law claim off from this case to begin anew in state court would not be an
efficient use of resources, given the obvious lack of evidence to support Plaintiff’s claim. Therefore, the
Court will exercise its discretion to retain jurisdiction over Plaintiff’s IIED claim.
39
Shamim v. Siemens Industry, Inc., 854 F.Supp.2d 496, 511 (N.D. Ill. 2012) (quoting Graham v.
Commonwealth Edison Co., 742 N.E.2d 858, 866 (Ill. App. Ct. 1st Dist. 2000)). “Whether
conduct is extreme and outrageous is judged on an objective standard, based on all the facts and
circumstances of the particular case.” Shamim, 854 F.Supp.2d at 511 (citing Graham, 742
N.E.2d at 866). “To be considered extreme and outrageous, ‘a defendant’s conduct must be so
extreme as to go beyond all possible bounds of decency’ and must be ‘regarded as intolerable in
a civilized community.’” Id. (quoting Feltmeier v. Feltmeier, 798 N.E.2d 75, 80-81 (2003)).
Courts are particularly reluctant to find extreme and outrageous conduct in the employment
context in the absence of “conduct calculated to coerce an employee to do something illegal.”
Welsh v. Commonwealth Edison Co., 713 N.E.2d 679, 684 (Ill. App. Ct. 1st Dist. 1999). “This
reluctance seems to be grounded in a fear that, if the anxiety and stress resulting from discipline,
job transfers, or even terminations could form the basis of an action for emotional distress,
virtually every employee would have a cause of action.” Id.
Plaintiff’s IIED claim consists of many of the same allegations that make up her ADA
and USERRA claims. Aside from the reasons discussed above as to why Plaintiff cannot
proceed with her ADA and USERRA claims, there are no allegations, nor is there any evidence,
that Volvo engaged in extreme and outrageous behavior. Arroyo’s evidence consists of internal
communications among Volvo employees attempting to determine the company’s obligations
under USERRA and the ADA. Much more egregious cases have failed to rise to the level of
extreme and outrageous. See, e.g., Stoecklein v. Illinois Tool Works, Inc., 589 F.Supp. 139, 146
(N.D. Ill. 1984) (an employer’s conduct in demoting and forcing an employee into retirement
because of his age, then reneging on a promise of severance pay and job counseling, was not
extreme and outrageous); Balark v. Ethicon, Inc., 575 F.Supp. 1227, 1230-32 (N.D. Ill. 1983) (an
40
employer’s refusal to reinstate an employee despite an arbitration award in the employee’s favor,
together with a baseless referral of the employee’s name to the FBI for investigation, was not
extreme and outrageous); Witkowski v. St. Anne’s Hosp. of Chicago, Inc., 447 N.E.2d 1016,
1022-23 (Ill. App. Ct. 1983) (an alleged wrongful discharge to prevent a plaintiff from securing
long-term disability benefits was not extreme and outrageous).
In her response brief, Plaintiff merely states that “[t]here is no dispute that Volvo
management was aware of Arroyo’s PTSD diagnosis and her susceptibility to emotional distress”
and Volvo “either intended to inflict severe emotional distress, or knew that there was a high
probability that is conduct would do so.” Arroyo fails to provide any citations to the record to
support her argument, nor does she attempt to rebut the cases cited by Volvo rejecting an IIED
claim in the employment context. Arroyo’s speculation, which she has not supported with any
facts or law, is not sufficient to withstand summary judgment, and her IIED claim, like her other
claims, will be dismissed.
IV.
Conclusion
For the reasons stated above, the Court grants Defendant’s motion for summary judgment
[75]. Judgment will be entered in favor of Defendant Defendant Volvo Group North America,
LLC and against Plaintiff LuzMaria Arroyo on all claims.
Dated: September 30, 2014
_______________________________
Robert M. Dow, Jr.
United States District Judge
41
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