Buhe v. Amica Mutual Insurance Company

Filing 64

MEMORANDUM Opinion and Order. This Court's August 17, 2016 order 42 is vacated to the extent it mooted defendant Amica's motion for summary judgment 30 . Defendant's motion for summary judgment 30 is granted in part and denied in part. The motion is granted with respect to plaintiff's promissory estoppel claim; it is otherwise denied. A status hearing is set for March 6, 2018 at 9:30 a.m. Signed by the Honorable Jorge L. Alonso on 2/13/2018. Notices mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMOTHY BUHE,
Plaintiff,
v.
AMICA MUTUAL INSURANCE
COMPANY,
Defendant.

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No. 15 C 5340
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Plaintiff Timothy Buhe brings this suit against his former employer, defendant Amica
Mutual Insurance Company (“Amica”), asserting claims of discrimination under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., as well as retaliatory discharge and
promissory estoppel under Illinois law. Defendant has moved for summary judgment. For the
following reasons, defendant’s motion is granted in part and denied in part.
BACKGROUND
This case arises from a grievous injury that plaintiff suffered in 2013 while working for
defendant, an insurance company, as a Senior Claims Adjuster. Plaintiff’s job, which he had
held since 1994, was to investigate and adjust bodily injury claims stemming from auto accidents
or property damage claims made by homeowners. (Pl.’s LR 56.1 Resp. ¶¶ 3-5, ECF No. 36.) On
February 25, 2013, while adjusting a claim, plaintiff fell off of a policyholder’s roof, injuring
himself. (Id. ¶ 16.) Plaintiff suffered a broken ankle that required two pins with internal
fixation, a torn meniscus in each knee, back pain, and a rotator cuff tear in his right shoulder.
(Id. ¶ 17.) Marvin Konkle, plaintiff’s supervisor and the manager of the Lisle, Illinois branch

office out of which plaintiff was based, promptly provided notice of the incident to the Chubb
Group of Insurance Companies, defendant’s worker’s compensation insurance carrier, and
plaintiff filed a workers’ compensation claim on June 5, 2013. (Id. ¶¶ 6-8, 20-21.) At the time,
plaintiff was on a form of “probation,” having received an Initial Warning of Termination in
August 2012 for dress code violations; missing an after-hours call while on on-call duty;
slowness in completing auto expense reports, estimates, and assignment downloads; and lax
documentation in the claims files assigned to him. (Id. ¶ 44; see Def.’s LR 56.1 Stmt., Tab 2,
Buhe Dep. at 118:23-128:22, ECF No. 32-3; id., Buhe Dep. Ex. 9, ECF No. 32-6 at 18-19.)
On March 13, 2013, plaintiff requested an eight-week disability leave, beginning March 1
and ending on May 1, 2013. (Pl.’s LR 56.1 Resp. ¶ 22.) On May 14, 2013, plaintiff told John
Grikas, who worked in human resources for defendant, that his injuries required multiple
surgeries and he would probably be unable to return to work until late summer or early fall. (Id.
¶ 23.) On September 9, 2013, Grikas received an email from Ashley Sullivan, a “Relocation
Coordinator” at Amica whose responsibilities included facilitating workers’ compensation
claims and exchanging information with Amica’s workers’ compensation insurers. (Def.’s LR
56.1 Stmt., Tab 5, Grikas Dep. Ex. 7, ECF No. 32-14 at 133; see id., Tab 6, Sullivan Aff. ¶¶ 2-3.)
Sullivan reported that she had discussed plaintiff’s workers’ compensation claim with the Chubb
adjuster assigned to his case, and she had learned that plaintiff’s treatment was not yet nearing a
conclusion, as he would likely need additional surgeries. (Id., Tab 5, Grikas Dep. Ex. 7, ECF
No. 32-14 at 133.) Sullivan wrote, “I advised the adjuster that we can provide light duty work
for Tim but she feels that the doctors will not agree to this. She asked if we can have Tim work
from home. From my perspective, I don’t recommend that we provide a work from home
accommodation because this tends to pro-long [sic] the WC claim.” (Id.)

2

On September 20, 2013, Grikas sent plaintiff a letter explaining that plaintiff had not yet
indicated when he anticipated returning to work and had already taken six months of disability
leave, the maximum amount allowed by defendant’s employee handbook—although Grikas
recognized that Amica could extend the leave, at its own discretion, based on its business needs
and any information it might receive about plaintiff’s anticipated return date. (Id. ¶ 27; see also
id. ¶ 11 (quoting language of disability leave policy); Def.’s LR 56.1 Stmt., Tab 2, Buhe Dep.
Ex. 18, September 20, 2013 Grikas Letter, ECF No. 32-6 at 51.)
On October 9, 2013, Grikas sent plaintiff a letter enclosing two copies of a Separation
Agreement and Release, in which defendant offered plaintiff several months’ pay in exchange
for agreeing to terminate his employment with defendant and release any claims against Amica
arising out of the employment relationship. (Pl.’s LR 56.1 Resp. ¶ 31; Def.’s LR 56.1 Stmt., Tab
2, Buhe Dep. Ex. 20, October 9, 2013 Grikas Letter, ECF No. 32-6 at 54.)
On October 16, 2013, plaintiff responded to the October 9 letter by sending an email to
Grikas. (Pl’s LR 56.1 Resp. ¶ 34.) The email states as follows:
Thank you for your letter of October 9, 2013. My review of the Employee
handbook notes that the maximum duration of a disability leave is GENERALLY
six months. I am confused by this language. Does that mean that some employees
are granted an extension of leave in addition to the six months?
Can you please clarify the reason for my proposed termination noted in the
Separation Agreement?
I have been a loyal employee of Amica Mutual Insurance for 22 years. My
unfortunate injuries causing my disability were due to being injured during the
course of employment. I expected to be treated with good faith due to my years of
service. I pray that I make a full recovery from my injuries after all surgeries and
physical therapy are completed. I am currently being paid by workers
compensation. Therefore, the cost of keeping me as a salaried employee is
nominal. I have a family to provide for now and for many years to come.

3

I am respectfully requesting an extension to my leave in order to return to work in
the near future with reasonable accommodations. I can not [sic] return to work
until all surgical procedures are completed based on workers compensation laws. 1
Please let me know if this is possible. Otherwise, I have questions regarding the
proposed separation agreement. . . .
Sincerely,
Timothy J. Buhe
(Def.’s LR 56.1 Stmt., Tab 2, Buhe Dep. Ex. 21, October 16, 2013 Buhe Email, ECF No. 32-6 at
59.)
The following day, Grikas sent Buhe an email in response, in which he provided Buhe
with the information Buhe had requested and admonished him, “the business needs of [your
department and branch] are such that your position will be required to be filled unless your
doctor(s) advises us that you may return to work in the near future.” (Id., Buhe Dep. Ex. 22,
October 17, 2013 Grikas Email, ECF No. 32-6 at 60.) In bold typeface, Grikas requested, “By
no later than Thursday, October 31, 2013, please provide us with updated medical documentation
to provide an anticipated date for your return to work” because “Amica is under no obligation to
allow you to have an open-ended Leave of Absence.” (Id.)
On October 31, 2013, Buhe sent an email to Grikas outlining a time frame for his return
to work and attaching a letter from his doctor. (Id., Buhe Dep. Ex. 23, October 31, 2013 Buhe
Email, ECF No. 32-6 at 61.) Buhe stressed that he was “not requesting an open ended leave of
absence,” he had been “a loyal employee for . . . 22 years,” he needed to remain employed to
provide health insurance for his sons, and he was “pray[ing]” that Amica “understands the
situation” and would allow him to “finish [his] professional career over the next 20 years.” (Id.)
1

Buhe admitted at his deposition in this case that his claim in the October 16, 2013 email that he would
not be able to return to work until after all his surgical procedures had been completed because of
“workers compensation laws” was based on a “misconception of how workmen’s comp worked.” (Def.’s
LR 56.1 Stmt., Tab 2, Buhe Dep.at 170:15-16.)

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The attached letter from plaintiff’s doctor, Dr. Corcoran, stated that plaintiff was scheduled to
undergo a surgical procedure on his right knee on November 11, 2013, from which plaintiff
would need two to three months to fully recover. (Id., Dr. Corcoran Letter, ECF No. 32-6 at 62.)
However, plaintiff would be able to return to work on “light duty (sitting job[,] minimal walking)
about 3-4 weeks” after the procedure, “if all goes as planned.” (Id.) Dr. Corcoran also described
a further surgical procedure, not yet scheduled, that plaintiff would have to undergo on his right
shoulder, after plaintiff had fully recovered from his knee surgery, and which would require
another lengthy recovery period. (Id.) After the shoulder surgery, plaintiff would be out another
six to eight weeks, when he would be able to return on “some form of light duty.” (Id.)
In early November 2013, Grikas and plaintiff spoke by phone. (Pl.’s LR 56.1 Resp. ¶
39.) Grikas asked plaintiff if he intended to return to work on light duty three to four weeks after
his upcoming knee surgery, and plantiff responded that that was his intention. (Id. ¶¶ 39-40.) In
late November and early December, Grikas and Buhe traded voicemails about setting up a
meeting between Buhe and Konkle. (Id. ¶ 52.) Buhe told Grikas on December 2, 2013, that he
had an appointment with Dr. Corcoran the next day and he would have a better idea of exactly
when he could return to work after that appointment, and he agreed to meet with Konkle on
December 10, 2013. (Id. ¶ 53.)
On or about November 8, 2013, the Chubb adjuster contacted Ashley Sullivan to report
that she had been conducting video surveillance on plaintiff in connection with his workers’
compensation claim, and it appeared that plaintiff was actively working at Electra Mortgage
Solutions (“EMS”) while collecting workers’ compensation benefits.

(Id. ¶ 45.)

Sullivan

relayed this information to Grikas, and Grikas was able to verify some of it independently. (Id.

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¶¶ 46-47, 50.) Plaintiff had not previously told either his supervisor Konkle or Grikas about this
outside employment at EMS. (Id. ¶ 51.)
Plaintiff founded EMS in 2007 and currently serves as its president and owner. (Id. ¶
48.) EMS’s business is originating mortgage loans, and plaintiff has operated the business as a
second job for a few hours per week since its founding, although he has had a second career as a
mortgage loan originator for much longer, since 1999. (Def.’s LR 56.1 Stmt., Tab 2, Buhe Dep.
at 47:13-58:16.) Plaintiff has held a mortgage loan originator license since 2005, when Illinois
began to require mortgage originators to hold such licenses. (Pl.’s LR 56.1 Resp. ¶ 49; Def.’s
LR 56.1 Resp. to Pl.’s Stmt. of Add’l Facts ¶ 5, ECF No. 38.) Plaintiff sometimes sold
mortgages to his co-workers, including his former supervisor, Gina Thies, and while he never
received formal approval from Amica to work a second job as a mortgage loan originator, he
believed it was generally common knowledge throughout the office at Amica that he was selling
residential mortgages on the side. (Def.’s LR 56.1 Resp. to Pl.’s Stmt. of Add’l Facts ¶¶ 1-4;
Def.’s LR 56.1 Stmt., Tab 2, Buhe Dep. at 47:13-58:16.) He had previously received formal
approval from Amica for separate outside employment: in 2005, Konkle learned that plaintiff
had held outside employment at a furniture store for the previous eight years, and after
discussing it with plaintiff, he made a note in plaintiff’s personnel file that the outside
employment did not present a conflict of interest. (Def.’s LR 56.1 Resp. to Pl.’s Stmt. of Add’l
Facts ¶ 6.)
On December 9, 2013, Grikas sent Konkle an email, suggesting that he ask Buhe about
his outside employment to verify whether the information he had received from Chubb was
correct and whether plaintiff could shed additional light on the matter. (Pl.’s LR 56.1 Resp. ¶
54.) At their meeting on December 10, Konkle asked plaintiff about his affiliation with EMS

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and whether it complied with the company’s policies on outside employment.

(Id. ¶ 55.)

Amica’s Outside Employment policy states, “There may be occasions when, in our opinion,
holding a second job would present a conflict of interest or adversely affect your performance at
Amica. Our policy requires that we be notified if you have or are planning to obtain outside
employment.” (Id. ¶ 10.) Additionally, Amica maintains a Statement of Amica Claims policy,
which states, “No employee shall hold a broker’s, agent’s, private detective’s or realtor’s license
of any sort, or function as such, without express written approval by the Claims Executive
Department, unless sponsored or otherwise approved in writing by the Office of the Secretary,”
and warns that violation of the policy is grounds for termination. (Id. ¶ 14.)
Plaintiff told Konkle that someone else oversaw the office activities of EMS for him and
he did not view his license as a violation of the company policy against broker’s licenses, but he
became “leery” of discussing the matter without speaking with his attorney. (Id. ¶ 55.) On
December 17, 2013, Konkle attempted to set up a second meeting with plaintiff, but plaintiff
responded via email as follows:
I have consulted with my attorney, Mr. Mark Hickey, regarding our previous . . .
meeting and this most recent request for a meeting. I was told by Mr. Grikas that
the last meeting . . . was to set up the light duty arrangement for my return to
work once released by my physician. However, this was not discussed during our
last meeting. The meeting focused on my current injury status and my affiliation
with Electra Mortgage?
Mr. Hickey and I would like to know the details and the particular items to be
discussed at this new meeting request. My attorney prefers that all future
conversations are in writing due to the fact that my employment status is under
review. Additionally, we are requesting a copy of my full personnel file.
(Id. ¶ 58; Def.’s LR 56.1 Stmt., Tab 2, Buhe Dep. Ex. 25, December 17, 2013 Buhe Email, ECF
No. 32-6 at 65-66.) On December 20, 2013, Konkle sent plaintiff a letter terminating plaintiff’s

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employment and citing his violation of defendant’s Statement of Amica Claims policy and its
Outside Employment policy. (Pl.’s LR 56.1 Resp. ¶ 54.)
In the last ten years, defendant has terminated two other employees for violating its
policies on outside employment and holding an outside broker’s license.

(Id. ¶ 61.)

It

terminated Jerry Ann Norton in 2013 and Gia Henry in 2014 for using broker’s licenses to sell
insurance for other companies, and neither of them was disabled or had filed a workers’
compensation claim against Amica.

(Id. ¶¶ 62-64.)

In fact, Amica has not involuntarily

terminated any of the seven Amica employees who have filed workers’ compensation claims
against Amica in Buhe’s region in the last five years. (Id. ¶ 65.) None of them litigated their
claims by filing applications for adjustment with the Illinois Workers’ Compensation
Commission. (Id.)
In the case of Gia Henry, Amica learned that she held licenses to sell insurance for other
companies, and in April 2014 it advised her that she would have to cancel these licenses to
maintain employment with Amica. (Defs.’ LR 56.1 Resp. to Pl.’s Stmt. of Add’l Facts ¶ 32.)
Henry told Amica that she would do so, but six months later, in October 2014, Amica learned
that Henry still held the licenses. (Id. ¶¶ 32-33.) Henry admitted to Amica that she still held the
licenses in question, and Amica terminated her for violating company policy, despite having
been warned and given an opportunity to cure the violation. (Id. ¶¶ 33-35.)
In the case of Jerry Ann Norton, Amica learned that she was licensed to sell insurance
products for other companies, but when confronted with this information, Norton told Amica
three times that she was not actually using the outside licenses and she was not selling insurance
for any other companies. (Pl.’s LR 56.1 Stmt. of Add’l Facts, Pl.’s Grp. Ex. 5, AMICA6396-97,

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ECF No. 36-5 at 14-15.) Dinari Dupont, a manager of some sort 2 in Norton’s department,
contacted Grikas by email to discuss the matter, writing, “My thoughts are that she terminate the
appointments and provide us with evidence that the appointments have been discontinued.
Otherwise, failure to do so presents a conflict of interest with Amica Life which may impact her
employment.” (Defs.’ LR 56.1 Resp. to Pl.’s Stmt. of Add’l Facts ¶ 36.) Grikas responded that
he would look into the matter further. (Id. ¶ 37.) After Amica learned that Norton was actively
using her broker’s license to sell life insurance for other companies, despite her representations
to the contrary, it terminated her employment. (Pl.’s LR 56.1 Resp. ¶ 62.)
Amica has allowed other employees to take leaves of absence in excess of six months,
including Robert St. George, who took a leave of absence of approximately nine or ten months
due to cancer and was administratively terminated when it transpired that he would be unable to
return to work. (Defs.’ LR 56.1 Resp. to Pl.’s Stmt. of Add’l Facts ¶¶ 30.) Additionally,
Michael Bossib was out on a disability leave of absence for approximately sixteen months in
2010 and 2011, as was Roberrt Pietroicz from late 2011 to early 2013. (Id. ¶ 31.) Robert
Empoliti, Donna Seabury, Wray Kern, Dawn Fasciano, Susan Thompson, and Eric Ernst all took
disability leaves of absence of between eight and fourteen months. (Id.)
Plaintiff filed an Equal Opportunity Employment Commission/Illinois Department of
Human Rights charge of discrimination and retaliation against defendant in October 2014, and he
received a right to sue letter in April 2015. (Compl., Exs. 1-2, ECF Nos. 1-1, 1-2.)
In June 2014, approximately three months prior to filing his administrative charge,
plaintiff filed a Chapter 13 bankruptcy petition. (Pl.’s LR 56.1 Resp. to Def.’s Suppl. Stmt. of
Facts ¶ 1, ECF No. 54.) He did not initially disclose any claims against Amica in his bankruptcy
2

Dupont’s exact position is unclear, although it is clear from the evidence that he held some sort of
managerial or supervisory position in the Sales and Client Services department at Amica.

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schedules, although he did disclose his workers’ compensation claim in his Statement of
Financial Affairs. (Id. ¶¶ 2, 3.) At the time he filed his bankruptcy petition, plaintiff had not yet
filed his administrative charge in this case and did not know that he was required to schedule all
pre-bankruptcy claims, even those he had not filed yet. (Pl.’s Suppl. Stmt. of Add’l Material
Facts ¶ 3, ECF No. 54.) Although not all of Buhe’s creditors filed claims, Buhe proposed, and
the bankruptcy court approved, a plan that called for Buhe to pay 100% of his creditors’ claims
over the plan term. (Id. ¶ 1.) Buhe completed his payments in June 2016. (Id. ¶ 2.) The
bankruptcy was discharged on July 26, 2016. (Pl.’s LR 56.1 Resp. to Def.’s Suppl. Stmt. of
Facts ¶ 5.)
In August 2016, after learning of plaintiff’s bankruptcy, Amica amended its answer and
supplemented its motion for summary judgment 3 in this case to assert that plaintiff should be
judicially estopped from asserting his claims against Amica based on his failure to disclose them
to the bankruptcy court.

On August 29, 2016, plaintiff filed amended schedules in his

bankruptcy case, and on September 30, 2016, he filed a motion to reopen his Chapter 13
bankruptcy case. (Pl.’s Suppl. Stmt. of Add’l Material Facts ¶¶ 5-6.) The bankruptcy court
granted the motion. (Id. ¶ 7.)
DISCUSSION
“The court shall grant summary judgment 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). The Court must construe the evidence and all inferences that reasonably can be
3

Under the impression that defendant intended to file a new motion for summary judgment based on the
defenses it sought to add to its amended answer, this Court terminated defendant’s motion for summary
judgment [30] as moot. However, defendant instead chose to file a supplemental memorandum of law
and Local Rule 56.1 statement of material facts; it did not file a new motion for summary judgment,
although the Court had disposed of the old one. A full round of briefing followed. To ensure that the
record is clear, the Court will vacate its August 17, 2016 order to the extent it mooted defendant’s motion
[30] and rule on the merits of that motion in this Memorandum Opinion and Order.

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drawn therefrom in the light most favorable to the nonmoving party. Kvapil v. Chippewa Cty.,
752 F.3d 708, 712 (7th Cir. 2014); McKinney v. Cadleway Props., Inc., 548 F.3d 496, 499-500
(7th Cir. 2008). “A factual dispute is ‘genuine’ only if a reasonable jury could find for either
party.” Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 599 (7th Cir. 2014) (citation
and internal quotation marks omitted). Rule 56 imposes the initial burden on the movant to
inform the court why a trial is not necessary. Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th
Cir. 2013). Where the nonmovant bears the ultimate burden of persuasion on a particular issue,
the movant’s initial burden may be discharged by pointing out to the court that there is an
absence of evidence to support the nonmoving party’s case. Id. Upon such a showing, the
nonmovant must then “make a showing sufficient to establish the existence of an element
essential to that party’s case.”

Id. (internal quotation marks and citation omitted).

The

nonmovant need not depose her own witnesses or produce evidence in a form that would be
admissible at trial, but she must go beyond the pleadings to demonstrate that there is evidence
upon which a jury could find in her favor. Id. at 1168-69 (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251 (1986)).
I.

PLAINTIFF’S BANKRUPTCY AND JUDICIAL ESTOPPEL
Defendant argues that plaintiff should be barred from litigating the claims he asserts in

this case based on his failure to disclose them as an asset in his bankruptcy proceedings.
Initially, defendant argued that plaintiff lacks standing to assert these claims because he
did not disclose them to the bankruptcy court, but plaintiff subsequently moved to reopen his
bankruptcy case, and the bankruptcy court granted the motion. The Court agrees with plaintiff
that the reopening of the bankruptcy case cures the standing problem. See Rainey v. United
Parcel Serv., Inc., 466 F. App’x 542, 544 (7th Cir. 2012).

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Next, defendant argues that plaintiff is judicially estopped from asserting his employment
claims against Amica.
The doctrine of judicial estoppel prevents litigants from manipulating the judicial
system by prevailing in different cases or phases of a case by adopting
inconsistent positions. See New Hampshire v. Maine, 532 U.S. 742, 749
(2001); Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 795 (7th
Cir. 2013) (affirming application of judicial estoppel); Walton v. Bayer Corp., 643
F.3d 994, 1002 (7th Cir. 2011). Manipulation may occur when a debtor
deliberately conceals a contingent or unliquidated claim during bankruptcy
proceedings and then later seeks to profit from that claim after obtaining a
discharge of her debts. See Cannon-Stokes [v. Potter, 453 F.3d 446, 448 (7th Cir.
2006)].
Spaine v. Cmty. Contacts, Inc., 756 F.3d 542, 547 (7th Cir. 2014)
It is undisputed that plaintiff initially omitted to disclose his employment claims as an
asset, and he at least potentially stood to gain from the omission. Defendant argues that judicial
estoppel applies based on these facts because they show that plaintiff’s failure to disclose his
claims against Amica was not inadvertent.

Defendant cites United States ex rel. Long v.

GSDMIdea City, L.L.C., 798 F.3d 265, 271-72 (5th Cir. 2015) (judicial estoppel applies against a
party who did not act inadvertently, and “inadvertence exists ‘only when, in general, the debtor
either lacks knowledge of the undisclosed claims or has no motive for their concealment’”
(quoting In re Coastal Plains, Inc., 179 F.3d 197, 210 (5th Cir. 1999))), but Long and like cases
are not binding on this Court. According to the Seventh Circuit, defendant must show that the
undisputed facts establish that plaintiff intentionally concealed his employment discrimination
claims from the bankruptcy court. See Spaine, 756 F.3d at 547-48; see also Ah Quin v. Cty. of
Kauai Dep’t of Transp., 733 F.3d 267, 271-72, 276 (9th Cir. 2013) (cited with approval in Spaine
and explicitly rejecting the “narrow” approach to judicial estoppel taken by the Fifth Circuit in
cases such as Coastal Plains, which presume deceit from the mere incentive to conceal an asset).

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Defendant does not point to undisputed evidence demonstrating that plaintiff
intentionally concealed his claim from the bankruptcy court. Indeed, plaintiff claims that he had
no idea he was supposed to disclose his employment claims to the bankruptcy court, particularly
given that his understanding was that all creditors who filed proofs of claim would be paid in
full. If that is true, then defendant’s judicial estoppel defense fails. Defendant’s judicial estoppel
defense must await trial because an issue of material fact remains. The motion for summary
judgment on grounds of judicial estoppel is denied.
II.

DISABILITY DISCRIMINATION UNDER THE ADA
Plaintiff claims that defendant discriminated against him based on his disability when it

terminated him, although he could still perform his job with reasonable accommodations.
The ADA provides, as a “general rule,” that “[n]o covered entity shall discriminate
against a qualified individual on the basis of disability in regard to . . . the . . . discharge of
employees . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112.
The statute defines the term “discriminate against a qualified individual on the basis of
disability” to include
(5)(A) not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business
of such covered entity; or
(B) denying employment opportunities to a job applicant or employee who is an
otherwise qualified individual with a disability, if such denial is based on the need
of such covered entity to make reasonable accommodation to the physical or
mental impairments of the employee or applicant
Id. Thus, “[t]o make out a claim under the ADA, an individual 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

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her because of her disability or failed to make a reasonable accommodation.” Stevens v. Ill.
Dep’t of Transp., 210 F.3d 732, 736 (7th Cir. 2000).
Although defendant is careful not to concede the point (see Def.’s Mem. at 4 n. 3, ECF
No. 31), defendant does not argue that plaintiff is not disabled. Rather, defendant argues that (a)
plaintiff was not qualified to perform the essential functions of his job; (b) there was no
reasonable accommodation defendant could have provided or that plaintiff sought; and (c)
defendant terminated plaintiff not because he was disabled but because he violated company
policy.
A. Qualified To Perform the Essential Functions of the Job
Defendant argues that plaintiff was not qualified to perform the essential functions of his
job because he was unable to report to work. But viewing the evidence in the light most
favorable to plaintiff, it distorts the record to say that plaintiff was unable to report to work.
Plaintiff was cleared for light duty on October 31, 2013. After that date, but prior to his knee
surgery scheduled for November 11, 2013, plaintiff told Grikas that he intended to report to work
on light duty three to four weeks after that surgery was completed, and he understood from
Grikas that that was acceptable to Amica. (Pl.’s LR 56.1 Resp. ¶¶ 39-41.) Plaintiff was not
unable to report to work; he had merely sought an accommodation of a few more weeks of leave
to recover from the scheduled surgery, which he had been told was reasonable—and as the Court
will discuss in more detail below, there is at least a genuine issue of material fact as to its
reasonableness. Viewing the facts in the light most favorable to the non-moving party, plaintiff
was not unqualified to perform the essential functions of his job with a reasonable
accommodation.

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B. Reasonable Accommodation
When an employer learns that one of its employees is disabled but wishes to remain
employed, “the employer must engage with the employee in an ‘interactive process’ to determine
the appropriate accommodation under the circumstances.” Bombard v. Fort Wayne Newspapers,
Inc., 92 F.3d 560, 563 (7th Cir. 1996) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d
1130, 1135 (7th Cir. 1996)); see also Miller v. Illinois Dep’t of Corr., 107 F.3d 483, 486-87 (7th
Cir. 1997) (“Even if an employee who as here becomes disabled while employed just says to the
employer, ‘I want to keep working for you-do you have any suggestions?’ the employer has a
duty under the [ADA] to ascertain whether he has some job that the employee might be able to
fill.”). There is no “hard and fast rule” defining the employer’s responsibilities vis-à-vis the
employee in this flexible, “interactive process” because
neither party should be able to cause a breakdown in the process for the purpose
of either avoiding or inflicting liability. Rather, courts should look for signs of
failure to participate in good faith or failure by one of the parties to make
reasonable efforts to help the other party determine what specific
accommodations are necessary. A party that obstructs or delays the interactive
process is not acting in good faith. A party that fails to communicate, by way of
initiation or response, may also be acting in bad faith. In essence, courts should
attempt to isolate the cause of the breakdown and then assign responsibility.
Beck, 75 F.3d at 1135.

Thus, employers must make a good faith effort of reasonable

accommodation of an employee’s disability. See Haschmann v. Time Warner Entm’t Co., 151
F.3d 591, 602 (7th Cir. 1998); see also id. at 601 n. 12 (holding that district court properly
instructed jury that defendant must prevail if evidence showed that defendant made a “good faith
effort and consulted with the plaintiff to identify and make a reasonable accommodation” that
would not cause an undue hardship).
Defendant argues that the leave of absence plaintiff was seeking was too long to qualify
as a reasonable accommodation. At the time of plaintiff’s termination, in December 2013,
15

plaintiff had been on leave for almost ten months, and defendant argues that the ADA did not
require defendant to extend what was already a lengthy leave of absence any further.
As defendant correctly explains in its briefs, the ADA does not require an employer to
accommodate an employee by providing an “indefinite leave of absence.” Nowak v. St. Rita
High Sch., 142 F.3d 999, 1004 (7th Cir. 1998). Additionally, an employer is not “‘obligated to
tolerate erratic, unreliable attendance.’” E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 949
(7th Cir. 2001) (en banc) (quoting Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir. 1999)).
However, while plaintiff may have been seeking a generous amount of time off, a reasonable
factfinder could conclude that he was neither seeking an indefinite leave of absence nor asking
defendant to tolerate erratic, unreliable attendance; to the contrary, he was seeking a more or less
clearly defined amount of leave to recover from his surgeries.
According to plaintiff, he conveyed to Grikas that he could return to work on light duty
three to four weeks after his November 11 knee surgery, a time period that had already elapsed
by the time he was terminated, and plaintiff was actively seeking to return to work on light duty
at that time. The parties knew that plaintiff would have to undergo another surgical procedure, a
shoulder surgery, after completing his recovery from the knee surgery, and he would need
additional disability leave to recover from that surgery. With respect to that future surgery,
plaintiff had provided a letter from his doctor explaining what the surgery was, what the recovery
process would be like, and approximately how much leave plaintiff would require. Cf. Yellow
Freight Sys., 253 F.3d at 948, 950-52 (affirming district court decision that vague and indefinite
“request for ‘sick days, if needed[,] without being penalized” was not reasonable as a matter of
law”). While plaintiff had been on leave for ten months and his upcoming shoulder surgery
would require at least an additional six to eight weeks before he could come back on light duty,

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there is evidence that other employees at Amica took disability leaves of absence of well over a
year, and in two cases as much as sixteen months, which was less than plaintiff was seeking.
Importantly, defendant does not dispute that light-duty work, such as “inside bodily injury” work
or “desk adjusting,” was available to plaintiff . 4 (See Def.’s LR 56.1 Resp. to Pl.’s Stmt. of
Add’l Facts ¶¶ 9-10.)
“Consideration of the degree of excessiveness” of a disability leave of absence that an
employee seeks as a reasonable accommodation “is a factual issue well suited to a jury
determination.” See Haschmann, 151 F.3d at 602. A jury could reasonably conclude that the
leave plaintiff sought was not excessive, particularly considering that Amica allowed other
employees to take comparably lengthy disability leaves of absence. Additionally, a jury could
reasonably conclude that defendant prematurely cut off the “interactive process” it was required
to follow and “dismissed [plaintiff] without making a good faith effort of reasonable
accommodation of [his] disability.” Id. There is a genuine dispute of material fact as to whether
the disability leave plaintiff required was a reasonable accommodation.
4

Although defendant does not dispute that it could put plaintiff on light duty, it vigorously disputes that it
could reasonably allow him to work from home. But there is evidence to the contrary (see Def.’s LR 56.1
Resp. to Pl.’s Stmt. of Add’l Facts ¶¶ 11-12), and in fact, upon close inspection, defendant does not so
much deny that plaintiff could have worked from home as deny that, when it has accommodated other
employees by allowing them to work from home, it was because they suffered from the same sort of
disability as plaintiff. (Id.) This is essentially contesting the reasonableness of a work-from-home
accommodation under the circumstances of this case, not its availability, and “reasonableness . . . is a
classic jury issue” unfit for resolution at summary judgment. Llaguno v. Mingey, 763 F.2d 1560, 1565
(7th Cir. 1985), abrogated on other grounds by Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991); see
Haschmann, 151 F.3d at 601 (“The reasonableness of a requested accommodation is
a question of fact.”); see also Lenker v. Methodist Hosp., 210 F.3d 792, 797 (7th Cir. 2000) (“Whether the
hospital tried to reasonably accommodate Lenker with these steps, and whether Lenker cooperated in the
hospital’s attempts to accommodate him are classic fact questions for the jury to resolve.”). In any case,
whether a work-from-home accommodation was reasonable makes no difference for purposes of the
present motion because it is undisputed that light duty (i.e., desk duty) was available to plaintiff, and there
is no evidence that plaintiff would be fit to resume working earlier with a work-from-home
accommodation than if he were required to wait till he was fit to report to the Lisle office for light duty.
The disputed issue reduces to whether giving plaintiff the amount of disability leave he needed to recover
from his surgery before he was fit for light duty was a reasonable accommodation, regardless of whether
he performed the light duty at home or at the Lisle office.

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C. Reason for Termination
Defendant claims that it terminated plaintiff for violating company policies against
holding outside employment and holding a broker’s license, not because of his disability. In
response, plaintiff argues that this justification for his discharge is a pure pretext for
discrimination based on the following facts: (1) other employees (namely, Gia Henry and Jerry
Ann Norton) who held outside licenses but who were not disabled were treated differently; (2)
plaintiff had never made any secret of his outside mortgage origination business, and he believed
it was common knowledge in the office; (3) there was evidence (namely, the separation
agreement sent to plaintiff in September 2013) that Amica was considering firing plaintiff even
before it learned of his outside employment and broker’s license; and (4) defendant has not
shown that plaintiff’s mortgage origination business presented a conflict of interest that would
plausibly have troubled Amica.
Defendant replies that (1) the other employees who held outside licenses were also
terminated, so there is no basis for any argument that they were treated more favorably than
plaintiff; (2) there is no evidence that the people who actually participated in the decision to
terminate plaintiff had any specific knowledge of plaintiff’s mortgage origination business prior
to November 2013; (3) that plaintiff was sent a separation agreement as part of a standard
severance package is not probative of anything; and (4) regardless of whether plaintiff’s
mortgage origination business presented a conflict, it clearly violated the Statement of Amica
Claims policy, which explicitly warned that violation of the policy was grounds for termination,
and there is nothing suspicious about defendant’s punishing a violation of its policy with a
punishment the policy itself prescribes.

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Plaintiff has the better of this argument based on the critical fact that, despite defendant’s
argument to the contrary, there were significant differences in the way Amica treated plaintiff
and the way it treated Gia Henry and Jerry Ann Norton. When Amica discovered that Gia Henry
held outside licenses, it gave her an opportunity to save her job by agreeing to cancel the
licenses. Amica only fired Henry when it learned, six months later, that despite saying she
would cancel the licenses she had never done so. Similarly, when Amica initially learned that
Norton held outside licenses to sell insurance for other companies, the view of at least one
management member (Dinari Dupont) was that she should be given an opportunity to save her
job by cancelling the licenses. At that point, Norton had specifically represented to Amica, in
answer to several direct questions, that she was not “selling any insurance products outside of
Amica.” (Pl.’s LR 56.1 Stmt. of Add’l Facts, Pl.’s Grp. Ex. 5, AMICA6396-97, ECF No. 36-5 at
14-15.) She was terminated after Amica learned that in fact she was “actively using a broker’s
license to sell life insurance for other companies.” (Def.’s LR 56.1 Stmt., Tab 1, Palmisano Aff.
¶ 11, ECF No. 32-2 at 3.) A reasonable factfinder could view defendant’s treatment of these
individuals as revealing that generally, Amica did not view a violation of the Statement of Amica
Claims policy to warrant dismissal per se; barring any use of those licenses to compete directly
with Amica or lying about them, merely holding outside licenses was not grounds for
termination. Plaintiff’s own treatment vis-à-vis his job at the furniture store shows that Amica
did not necessarily terminate employees for undisclosed outside employment that did not present
a conflict of interest, and defendant has not pointed to any evidence showing, nor does the Court
see, that plaintiff’s mortgage origination business conflicted with Amica’s insurance business.
Viewing all the evidence in the light most favorable to plaintiff, a reasonable factfinder could
conclude that defendant would not have terminated plaintiff for holding outside licenses and

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outside employment if he did not have a disability that required accommodation. There is a
genuine issue of material fact on plaintiff’s ADA claim, and defendant’s motion for summary
judgment is denied as to that claim.
III.

RETALIATORY DISCHARGE
To prevail on a claim of retaliatory discharge under Illinois law, a plaintiff must show

that (1) he was discharged (2) in retaliation for his activities, and (3) the discharge violates a
clear mandate of public policy. Hartlein v. Ill. Power Co., 601 N.E.2d 720, 728 (Ill. 1992).
“The element of causation is not met if the employer has a valid basis, which is not pretextual,
for discharging the employee.” Id.

The tort of retaliatory discharge represents a limited and

narrow exception to the general rule of at-will employment, Turner v. Mem’l Med. Ctr., 911
N.E.2d 369, 374 (Ill. 2009), and courts generally sustain claims of retaliatory discharge that arise
in one of only two settings: where a whistleblowing employee is discharged in retaliation for
reporting illegal or improper conduct, or where, as plaintiff alleges here, “an employee is
discharged for filing, or in anticipation of filing, a claim under the Workers’ Compensation Act”.
Howell v. BNSF Ry. Co., No. 14 C 9977, 2015 WL 3528237, at *2 (N.D. Ill. June 4, 2015)
(citing Michael v. Precision Alliance Grp., LLC, 21 N.E.3d 1183, 1188 (Ill. 2014)).
Defendant argues that there is insufficient evidence that plaintiff was terminated in
retaliation for filing his workers’ compensation claim to create a genuine issue of material fact.
Plaintiff was not terminated until December 2013, six months after filing his workers’
compensation claim—too long a time frame, according to defendant, for there to be any fair
inference of any connection. Further, defendant argues, the only direct evidence of retaliation
based on the workers’ compensation claim is an ambiguous statement by Ashely Sullivan, a lowlevel non-decisionmaker, who wrote in an email to Grikas, “[f]rom my perspective, I don’t

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recommend that we provide a work from home accommodation because this tends to pro-long
[sic] the [workers’ compensation] claim.” (Def.’s LR 56.1 Stmt., Tab 5, Grikas Dep., Ex. 7, ECF
No. 32-14 at 133). Finally, defendant argues that several other Amica employees have filed
workers’ compensation claims against Amica in recent years, and none of them has been
involuntarily terminated.
Plaintiff responds that he did not merely file a workers’ comp claim; in August 2013, he
filed an application for adjustment of his claim with the Illinois Workers’ Compensation
Commission. In other words, he took steps toward litigating his workers’ compensation claim in
an adversarial context, which, plaintiff argues, gave Amica an even greater reason for retaliatory
animus than in the usual case. Further, plaintiff argues, the reason defendant gave for plaintiff’s
termination was pretextual, so a reasonable factfinder could conclude that defendant lied about
its real reason for terminating him in order to cover up its retaliatory motive.
As the Court has explained above in Part III.C. of this Opinion, there is evidence from
which a reasonable factfinder could conclude that defendant’s reason for terminating plaintiff
was pretextual. In short, without repeating all of the above discussion, Amica terminated Gia
Henry and Jerry Ann Norton only after they were found to have been dishonest with Amica
about their outside employment or licensing, and in neither case did Amica proceed with
termination immediately after learning of the outside licenses. In Henry’s case, Amica gave
Henry an opportunity to cure the violation by canceling the outside licenses, and Amica only
fired her after it learned that, despite telling Amica that she would do so, she had not canceled
the licenses after all.

In Norton’s case, Amica was similarly prepared to give Norton an

opportunity to cancel the outside licenses to save her job, but it terminated her after learning that
she had lied to the company about whether she had been using the licenses to sell insurance

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products for other companies, a clear conflict of interest. Plaintiff’s situation was quite different;
Konkle confronted plaintiff about his outside employment and broker’s license, but Amica never
gave him an opportunity to save his job by canceling his broker’s license, despite the fact that
there was no apparent conflict of interest. A reasonable jury could find that Amica has not
provided a satisfactory explanation for why it treated plaintiff differently than other employees
and conclude that it must have had some other reason for discharging plaintiff so precipitously.
A reasonable jury could conclude that the real reason for plaintiff’s termination was not
the violation of company policy but the fact that plaintiff had filed a workers’ compensation
claim against defendant. Buhe had initiated litigation in connection with his workers’
compensation claim before the Illinois Workers’ Compensation Commission, boosting the
potential for retaliatory animus. A jury could interpret Ashley Sullivan’s email to show that
Amica viewed an extended workers’ compensation claim as a problem, and, around the time of
plaintiff’s termination, Amica had recently received information indicating how long and drawn
out the treatment for plaintiff’s injuries was likely to be. A jury could reasonably conclude that
Amica seized on the pretext of a violation of company policy as soon as it presented itself in
order to terminate plaintiff, but that the real reason for the termination was retaliatory animus
against plaintiff for pursuing a workers’ compensation claim. There is a genuine issue of
material fact as to plaintiff’s claim of retaliatory discharge, and defendant’s motion for summary
judgment on this claim is denied.
IV.

PROMISSORY ESTOPPEL
In addition to the ADA and retaliatory discharge claims, plaintiff’s complaint asserts a

claim for promissory estoppel based on defendant’s alleged breach of its promises in its
employee handbook to permit medical leave in excess of six months if necessary.

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In his

response brief, plaintiff asks to voluntarily dismiss this claim. Because plaintiff does not wish to
pursue his promissory estoppel claim, defendant’s motion for summary judgment is granted as to
that claim.
CONCLUSION
This Court’s August 17, 2016 order [42] is vacated to the extent it mooted defendant
Amica’s motion for summary judgment [30]. Defendant’s motion for summary judgment [30] is
granted in part and denied in part. The motion is granted with respect to plaintiff’s promissory
estoppel claim; it is otherwise denied. A status hearing is set for March 6, 2018 at 9:30 a.m.

SO ORDERED.

ENTERED: February 13, 2018

______________________
JORGE L. ALONSO
United States District Judge

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