Perez v. Staples Contract & Commercial, Inc.

Filing 259

MEMORANDUM Opinion and Order: Signed by the Honorable Robert M. Dow, Jr on 8/2/2021. Mailed notice(gcy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES L. PEREZ,
Plaintiff,
v.
STAPLES CONTRACT &
COMMERCIAL LLC,
Defendant.

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Case No. 16-cv-7481
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
After the Court granted summary judgment to Staples Contract and Commercial LLC
(“Defendant”), James Perez (“Plaintiff”) filed a motion to alter or amend the judgment [244],
arguing that the Court failed to consider all available evidence. Plaintiff also filed a motion to
supplement the record [251]. For the reasons below, Plaintiff’s motion to alter or amend the
judgment [244] is denied, and his motion to supplement the record [251] is granted in part and
denied in part.
I.

Background1
Plaintiff was formerly employed by Defendant as a Facility Solutions Account Executive

(“FSAE”). [214, at 2 ¶ 4]. Plaintiff’s 2015 performance review indicated that his performance did
not meet expectations. [214, at 5 ¶ 13]. In March 2016, Defendant placed Plaintiff on a 90-day
Associate Success Plan (“ASP”).

[Id., 11 ¶ 25].

The ASP included three performance

requirements: (1) “[c]lose a minimum of $75K in SalesForce.com Wins per period and make sure
those Wins ramp at the stated Opportunity revenue rate utilizing the Win Ramp Report”; (2) “[i]n

1

A more in-depth factual background can be found in the background section of the Court’s summary
judgment order [238, at 3–15].

accordance with our Performance Advantage expectation, 5 selling appts. per week, 1 of which
must be a First Meeting appointment”; and (3) “[m]aintain $1M in First Meeting and Forward in
your SalesForce.com Pipeline. Attain sales growth of $63,462 per period by the close of
P4FY2016 with an annual run rate of $825k for FY2016.” [216-2, at 74]. In June 2016, Defendant
determined that Plaintiff had not met these goals and terminated his employment as a result. [214,
at 15 ¶ 38].
Plaintiff then brought this suit, alleging that Defendant committed common law retaliatory
discharge for terminating his employment in retaliation for serving on a jury and for blowing the
whistle on a sale that violated New York law. [20-1, at 13–17]. He also alleged that Defendant
violated the Illinois Jury Act, 705 Ill. Comp. Stat. 305.4.1(b), and the Illinois Whistleblower Act,
740 Ill. Comp. Stat. 174/20. [Id., at 17–20]. Defendant moved for summary judgment [212]. The
Court granted this motion, determining that Defendant reasonably concluded that Plaintiff did not
meet his ASP requirement and that Plaintiff failed to demonstrate any retaliatory intent as required
by Illinois law. [See 238, at 9–15, 17–20, 27–28].
A portion of Plaintiff’s evidence consisted of spreadsheets in native .xlsx format. Plaintiff
filed a cover sheet for these exhibits on the docket, and he provided the Court with a flash drive
containing the spreadsheets in .xlsx format. [See, e.g., 226-14]. In an affidavit, a legal assistant
to Plaintiff’s counsel explained that in June 2020, she provided the Court’s chambers a flash drive
containing all exhibits to Plaintiff’s Rule 56.1 statement. [246, at ¶¶ 7–8]. The Court was unable
to locate this flash drive. At the request of the Court, Plaintiff’s counsel provided another flash
drive in September (the “September flash drive”). However, this flash drive did not contain all

2

spreadsheets cited by Plaintiff. As such, in its order on summary judgment, the Court noted that
Plaintiff cited to several spreadsheets that he did not provide the Court.2 [238, at 3 & n.2].
Plaintiff then filed a motion to alter or amend the summary judgment order under Federal
Rule of Civil Procedure 59(e) [244], arguing that the Court failed to consider all evidence. In this
motion, Plaintiff explains that the September 2020 flash drive included Exhibits S, T, U, W, X,
and Y [id., at 6]. In a minute order, the Court acknowledged that the flash drive did contain these
exhibits and invited Plaintiff to provide a flash drive with any other spreadsheets that were
previously filed. [249]. Plaintiff then filed a motion to supplement the record [251], explaining
that the September 2020 flash drive did not contain all previously filed spreadsheets. Plaintiff
provided the Court with another flash drive (the “December flash drive”) containing all previously
filed spreadsheets. In his motion to supplement the record, Plaintiff also explained that ten nonspreadsheet exhibits were never filed on the docket. [251, at 4]. Plaintiff moved to supplement
the record with two sets of documents: (1) the additional spreadsheets on the December flash drive
and (2) the ten non-spreadsheet exhibits that were never filed on the docket. [251].
II.

Legal Standard
“Courts may grant Rule 59(e) motions ‘to alter or amend the judgment if the movant

presents newly discovered evidence that was not available at the time of trial or if the movant
points to evidence in the record that clearly establishes a manifest error of law or fact.’” Miller v.
Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012) (quoting In re Prince, 85 F.3d 314, 324
(7th Cir.1996)). “This rule ‘enables the court to correct its own errors and thus avoid unnecessary
appellate procedures.’” Id. (quoting Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996)).

2

The Court also stated that the September 2020 flash drive contained spreadsheets that Plaintiff did not
cite. However, as noted by Plaintiff, this statement is incorrect, and he did cite to all spreadsheets on the
September 2020 flash drive.
3

III.

Analysis
A.

Motion to Supplement the Record

The Court grants Plaintiff’s motion to supplement the record [251] as to the December
flash drive containing previously filed spreadsheets in .xlsx format. As the Court noted in its
minute order [249], managing exhibits that cannot be filed on the electronic docket is always
challenging, even more so during a pandemic. The December flash drive contains 15 spreadsheets
that were not considered in ruling on the initial motion (Exhibits B-11, B-12, B-14 through B-24,
B-28, and B-32) and the Court now considers these spreadsheets to be part of the record.3 As such,
in contrast to the Court’s previous statement [238, at 3 n.2], all of the spreadsheets that Plaintiff
cites are now part of the record.
The Court denies Plaintiff’s motion to supplement the record [251] as to the ten additional
non-spreadsheet exhibits Plaintiff failed to previously file on the docket. Plaintiff provides neither
an explanation as to why these exhibits were not filed earlier nor a compelling reason to permit
him to do so now. See [251, at 2 (explaining that the exhibits were “inexplicably and inadvertently
not filed”). The Court notes, however, that many of these documents were filed and cited by the
Defendant and therefore considered by the Court. Compare, e.g., [251-3] with [216–4, at 15–16],
[251-4] with [216-4, at 44], [251-5] with [216-4, at 33–36], and [251-6] with [216-4, at 46–47].
B.

Motion to Alter or Amend
1.

Impact of Additional Spreadsheets

Turning to Plaintiff’s motion to alter or amend [244], the Court must now determine
whether Plaintiff “points to evidence in” this full record “that clearly establishes a manifest error

3

The cover pages for these spreadsheets were filed on the docket as 226-14, 226-15, 226-17, 226-18, 22619, 226-20, 226-21, 226-22, 226-23, 226-24, 226-25, 226-26, 226-27, 226-31, 226-35.
4

of law or fact.’” Miller, 683 F.3d at 813 (quoting In re Prince, 85 F.3d at 324). The Court carefully
reviewed its prior order [238], Plaintiff’s previous summary judgment filings [225; 226], the new
spreadsheets on the December flash drive, and Plaintiff’s briefs and exhibits for the current motion
to alter or amend [244; 257]. The Court is unable to determine a basis for denying Defendant
summary judgment, let alone a “manifest error of law or fact” in its prior order. Miller, 683 F.3d
at 813 (quoting In re Prince, 85 F.3d at 324). The Court recognizes Plaintiff’s argument that in
certain respects, his motion for reconsideration is perhaps better conceptualized as a motion for
consideration, as the Court cannot reconsider spreadsheets that it did not consider in its initial
ruling. [258, at 3–8]. As explained in this section, the additional spreadsheets would not have
changed the Court’s analysis under the summary judgment standard had the Court had the
spreadsheets at the time of its initial ruling.
As Plaintiff explains, he relies on Exhibits B-11, B-12, and B-14 through B-24 to support
the calculations for his adjusted Pipeline numbers “without adjustments.” [257, at 6; 226, at 58–
59]. However, these unadjusted numbers fell short of his ASP requirement of $1 million.
Accordingly, these exhibits do not change the Court’s reasoning or conclusions.
Plaintiff next explains that he relies on Exhibit B-28 to compare his performance to that of
Julie Claver. [257, at 6; 226, at 6, 24, 60–61]. The Court notes that he also relies on Exhibit B-28
to compare his performance to Brandy Smith’s. [226, at 53–54]. Regarding Claver, Plaintiff uses
Exhibit B-28 to compare their year-over-year sales growth numbers. [Id., at 6, 24, 26, 60–61].
However, as the Court explained in its order, Plaintiff’s and Claver’s “growth rates depend on the
amount of sales each made in the prior year. Therefore, comparing Plaintiff’s and Claver’s
respective growth rates provides no insights into the difference between their actual sales.” [238,
at 19]. Indeed, Exhibit B-28 lists Claver’s “LY YTD Sales” as greater than Plaintiff’s [compare

5

226-31 at row 28, column z, with 226-31 at row 33, column z],4 suggesting that even if Claver
performed worse than she did in the previous year, she nevertheless outperformed Plaintiff, at least
on this metric.
Regarding Smith, Plaintiff uses Exhibit B-28 to claim that (1) Smith was underperforming
and (2) Plaintiff was outperforming her at the time of his termination. [226, at 53–54]. On the
first point, Plaintiff asserts that, in June 2016, Smith “had sales of only $235,561.00 for 2016.”
[Id., at 53]. However, Exhibit B-28 indicates that Smith’s “YTD $ Growth” was $235,561.00.
[226-31, at rows 6 and 56, column AJ (emphasis added)]. Plaintiff provides no basis for why
Smith’s “YTD $ Growth” numbers would reflect her sales numbers, and the spreadsheet has a
column labeled “TY YTD Sales” showing that Smith had sales of over $2.3 million. [Id., at rows
6 and 56, column z]. On the second point, Plaintiff is correct in that Exhibit B-28 indicates that
his year-over-year growth numbers were greater than Smith’s, but the exhibit also indicates that
Smith’s raw sales numbers were higher than Plaintiff’s. [Compare id. at row 33, with id. at row
56].
The Court notes that Plaintiff also relies on Exhibit B-28 to assert that the Ulta Beauty and
NES accounts were his as of May 1, 2016. [226, at 41–42, 44]. However, Exhibit B-28 includes
only an “AE-FS” tab and does not include any account names. Therefore, this exhibit does not
support Plaintiff’s assertion.5 He further uses Exhibit B-28 to claim that he had accounts that
exceeded $50,000. [226, at 43–44]. But the Court already included this fact in its analysis. [See
238, at 18].

4

The Court cites to rows and columns as the spreadsheets were sorted when provided to the Court.

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Defendant asserts that these accounts were transferred from Plaintiff on February 26, 2016. [214, at 20].
It cites to a SalesForce report indicating that on February 26, 2016, the “Opportunity Owner” field for the
NES account changed from “James Perez” to “Brandy Smith” and the “Opportunity Owner” field for the
Ulta Beauty account changed from “James Perez” to “Gigi Wayne.” [216-4, at 135–36].
6

Plaintiff explains that he relies on Exhibit B-32 to assert that his Pipeline should have been
credited with $50,000 based on sales to U.S. Post Office Elk Grove. [257, at 6; 226, at 45–46, 72].
However, in determining that Plaintiff did not meet the Pipeline ASP requirement, the Court
already assumed that his Pipeline should have been credited with a $50,000 opportunity from this
account. [238, at 14]. Plaintiff also relies on Exhibit B-32 to support his position that he should
have been credited with a $50,000 “win” in May 2016 for sales made to U.S. Post Office Elk
Grove. [226, 61, 226-3, at ¶¶ 14–15; 226-34]. However, Exhibit B-32 provides data supporting a
sum total of sales to this client of $1,743.66, and Plaintiff does not explain how these sales translate
into a $50,000 win.
In short, the Court cannot find a basis for denying Defendant summary judgment based on
the additional spreadsheets. Thus, these additional spreadsheets do not provide a reason to alter
or amend the Court’s order on summary judgment [238].
2.

Plaintiff’s Additional Arguments

Plaintiff’s initial motion to amend was based entirely on the additional spreadsheets. [See
244]. However, in his reply briefing, Plaintiff raises several new arguments. [See 257, at 8–15].
By raising these arguments for the first time in a reply brief, Plaintiff has forfeited them. See
Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“[T]he district court is entitled to find that
an argument raised for the first time in a reply brief is forfeited.”). However, for the sake of
completeness, the Court addresses these forfeited arguments below.
a.

Conclusory Statements in Plaintiffs Affidavit

First, Plaintiff argues that the Court inappropriately disregarded certain portions of his
affidavit as conclusory or not made on personal knowledge. He explains that, contrary to the
Court’s description, his affidavit was made on personal knowledge and did not consist of

7

conclusory allegations. [257, at 9]. In making this argument, Plaintiff did not identify a particular
aspect of his affidavit that that Court erred in disregarding as either conclusory or not made on
personal knowledge. This may be because Plaintiff believes that the Court “does not identify
precisely what portions of plaintiff’s affidavit were disregarded or for what specific reason.” [Id.].
To Plaintiff’s point, in the Preliminary Factual Issues of the order the Court did not state which
portions of the affidavit were problematic. [See 238, at 2]. Instead, the Court stated, “[a]s detailed
in examples below, to the extent that Plaintiff’s affidavit fails to comply with these principles, the
Court has disregarded it.” [Id.]. The Court understands that the reference to “examples below”
suggests that the Court disregarded more of the affidavit than it explicitly provided in the Facts
section of the order. However, anytime the Court disregarded a portion of the affidavit in a way
that had a material impact on the analysis, the Court so noted.6
As explained in the order, the Court determined that Plaintiff’s affidavit was conclusory or
did not rely on personal knowledge with respect to some of Plaintiffs averments regarding his wins
and Pipeline. [238, at 10–13]. These averments relied on charts that Plaintiff attached to his
affidavit. [See 226-3, at ¶ 12 (citing Exhibit 26, which was docketed as 226-29), ¶ 14 (citing
Exhibit 31, which was docketed as 226-34)]. The Court characterized these charts as summary
exhibits under Federal Rule of Evidence 1006 that were inadmissible because Plaintiff did not lay
any foundation to demonstrate that the summaries were accurate. [238, at 10–11 (citing Judson
Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) (“The

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The exception to this is any statement in the affidavit whose inadmissibility is plainly obvious. For
example, Plaintiff avers that Defendant engaged in “factual gymnastics to try to escape the obvious
conclusion that the real reason they terminated me was because I attended jury duty and because I refused
to participate in the sale of illegal detergent in violation of New York’s environmental protection laws.”
[226-3, at ¶ 19b]. This is at best an argument or opinion and not a statement that is “made on personal
knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant
is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). There are several of these statements
throughout the affidavit; the Court did not and will not individually discuss each one.
8

admission of a summary under Fed. R. Evid. 1006 requires ‘a proper foundation as to the
admissibility of the material that is summarized and * * * [a showing] that the summary is
accurate.’” (alterations in original) (quoting United States v. Briscoe, 896 F.2d 1476, 1495 (7th
Cir.1990))))]. In his affidavit, Plaintiff stated that Exhibit 31 showed his sales “as reflected in the
records disclosed by Staples,” indicating that this chart is a summary.7 [226-3, at ¶ 14]. It is less
clear as to whether Exhibit 26, a chart Plaintiff states shows his Pipeline, is a summary based on
data provided by Defendant or is information based on Plaintiff’s personal knowledge. On the one
hand, at the outset of his affidavit, Plaintiff explains that he attached “demonstrative exhibits
demonstrating his compliance with the” ASP, and he “noted that these demonstrative exhibits have
been updated as new information became available in discovery,” which suggests that the exhibits
are not based on his personal knowledge. [Id., at ¶ 4]. On the other hand, Plaintiff describes
Exhibit 26 as “a list of all the accounts that Staples omitted from my Pipeline,” suggesting that
Exhibit 26 does not reflect Defendant’s data.
However, even if Exhibit 26 were admissible and demonstrated Plaintiff’s accurate
Pipeline, it would not change the result here. With respect to Plaintiff’s jury duty claims, the chart
lists adjusted Pipeline totals of over $1 million going back to March 14, 2016. The earliest anyone
at Staples learned of Plaintiff’s jury duty was roughly April 19, 2016. [See 226-3, at ¶ 26
(explaining that Plaintiff shared the news of his jury duty with Coha “approximately three weeks
prior to May 10, 2016”)]. Thus, even if Defendant failed to properly credit Plaintiff’s Pipeline,
this began before Defendant learned of Plaintiff’s jury duty and therefore could not possibly have
been in retaliation for his jury duty. In fact, the possibility that Defendant began treating Plaintiff
unfairly well before his jury duty cuts strongly against the assertion that Defendant treated him
7

Regardless, as described in the Order, Plaintiff did not meet the wins requirement in his ASP even taking
Exhibit 31 into consideration. [See 238, at 11].
9

unfairly because of his jury duty. With respect to Plaintiff’s whistleblowing claims, Staples did
learn of the illegality of Clax Mild Forte in New York prior to March 14, 2016. However, as
explained below, even if Defendant retaliated against Plaintiff, his whistleblower claims fail as a
matter of law.
b.

Conflicts Between Plaintiff’s Deposition and Affidavit

Next, Plaintiff argues that the Court inappropriately disregarded statements in his affidavit
because they contradicted his previous deposition testimony. Plaintiff averred that he told Coha
on March 8, 2016 that he “was refusing to participate in any more of the illegal sales” of Clax Mild
Forte. [226-3, at ¶ 23]. The Court disregarded this averment because it determined that it
conflicted with his deposition testimony that on March 8, 2016 he told Coha, “Fred, I do not feel
comfortable knowingly selling illegal detergent [in] the state of New York.” [226-42, at 218:11–
14]. He also said
Fred, I am worried because I was part of a team through Keith Woodward that made
[a] product recommendation, and unknowingly we recommended a product that
could not be sold to XSport in the state of New York. * * *So I am worried because
of liability or culpability if the state of New York were to bring this, you know, to
a court saying that we had sold a product that was not supposed to be sold, that I
would be liable and culpable for it because I was part of a team that had made that
decision.
[Id., at 219:21–220:6]. However, as Plaintiff pointed out, courts should disregard averments “only
where the witness has given ‘clear answers to unambiguous questions which negate the existence
of any genuine issue of material fact.’” Castro v. DeVry Univ., Inc., 786 F.3d 559, 572 (7th Cir.
2015) (quoting Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1170 (7th Cir.
1996)). It is possible that Plaintiff told Coha both that he was worried about his potential individual
liability and that he was refusing to participate in the sale of Clax Mild Forte. That said, and as
explained below, even if Plaintiff engaged in protected activity, his whistleblower claims fail as a
matter of law.
10

The Court also discredited Plaintiff’s averment that Coha told Plaintiff that “as far as he
was concerned [Plaintiff’s] missing work because of jury service would not be credited to me by
him in evaluating my performance.” [226-3, at ¶ 26]. However, unlike Plaintiff’s deposition
testimony about his conversation regarding Clax Mild Forte, his deposition testimony on this topic
does conflict with his affidavit. During his deposition, Plaintiff agreed that it was possible Coha
said that Plaintiff’s “jury duty service translated into [Defendant] giving [him] an addition four
days on the ASP.” [226-42, at 179:11–15]. And, as discussed below, Defendant did extend the
length of Plaintiff’s ASP by four days. The Court stands by its decision to disregard this portion
of the affidavit because it is incompatible with his earlier deposition statement.
c.

Plaintiff’s Laptop

Plaintiff asserts that the Court erred in declining to make any inferences based on
Defendant allegedly destroying or losing his laptop. [257, at 10–11]. In his Rule 56.1 statement
and response, Plaintiff explained that he could not rebut certain facts because Plaintiff never
produced any discovery from his laptop, despite placing it on legal hold. [E.g. 226, at 29–30 ¶ 34,
70 ¶ 29]. He also averred that Defendant refused “to produce any information from [his] laptop
computer which included [his] personal notes corroborating [his] testimony.” [226-3, at ¶ 26].
The Court “decline[d] to make any factual inferences based on this claim,” explaining that
(1) Plaintiff provided no basis for his claim that Defendant destroyed or otherwise failed to produce
documents and (2) at the summary judgment stage, “the time for settling discovery disputes ha[s]
long since passed.” [238, at 3 (second alteration in original) (quoting Harper v. Henton, 2014 WL
1304594, at *8 (S.D. Ill. Mar. 28, 2014))].
In arguing that the Court erred, Plaintiff relied on Norman-Nunnery v. Madison Area
Technical College, 625 F.3d 422 (7th Cir. 2010). [257, at 10–11]. There, the Seventh Circuit

11

explained that “in order to draw an inference that the missing documents contained information
adverse to the defendants, [Plaintiff] must demonstrate that the defendants intentionally destroyed
the documents in bad faith.” Norman-Nunnery, 625 F.3d at 428. Plaintiff argues that Defendant
“confiscated plaintiff’s laptop at his termination” and “implemented a litigation hold on it” [257,
at 10 (emphasis omitted)], but he doesn’t point to any evidence that Defendant intentionally
destroyed documents or acted in bad faith. Additionally, during discovery Plaintiff moved to
compel Defendant to provide the laptop [104] and Judge Schenkier denied that request [119; 126,
at 8]. Plaintiff never objected to this ruling. Finally—and perhaps most importantly—Plaintiff
did not make a spoliation argument in his response brief to Defendant’s motion for summary
judgment or cite to any case law on spoliation in any of his summary judgment materials. Instead,
all references to his laptop are in his Rule 56.1 statement. “It is inappropriate to make legal
arguments in a Rule 56.1 statement of facts,” and “a district court has broad discretion to require
strict compliance with Local Rule 56.1.” Judson Atkinson Candies, Inc., 529 F.3d at 382 n.2 (7th
Cir. 2008). Moreover, courts routinely decline to address legal arguments absent supporting
caselaw. See United States v. Price, 516 F.3d 597, 606 n.1 (7th Cir. 2008) (“Because Price cites
no case law in support of this argument, however, we need not address it.”); Herrmann v. Astrue,
2010 WL 356233, at *9 (N.D. Ill. Feb. 1, 2010) (collecting cases). Accordingly, the Court did not
err in declining to make any factual inferences based on Plaintiff’s claims regarding his laptop.
d.

ASP Start and End Date

The ASP states “ASP Start Date: 3/7/16” and “ASP End Date: 6/6/16,” and Plaintiff and
Coha signed the ASP on March 11, 2016. [216-2, at 74–75]. Plaintiff argues that the Court erred
in determining that the ASP start date was March 7, 2016 because he “did offer evidence that the
start date was March 11, 2016, the date on which it was signed.” [257, at 11]. Plaintiff states that

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this assertion is supported by citations in paragraph 26 of his response to Defendant’s statement of
facts. [Id.]. However, none of these three citations support the assertion that the ASP start date
was March 11, 2016. Plaintiff first cites to Exhibit Z, docketed as 226-63, which are two emails
between Plaintiff and Coha sent on March 8, 2016 and March 9, 2016. In the first email, Plaintiff
tells Coha that he “would like to move forward with Performance Agreement,” but that he had
several issues regarding it. In the second email, Coha tells Plaintiff that they can “discuss [his]
plan on Friday.” [226-63]. Neither of these emails suggest that the ASP start date was the date it
was signed. Next, Plaintiff cites to several portions of his depositions. In one portion, Plaintiff
states that he “was not in total agreement with the ASP until March 11.” [226-42, 144:4–6]. In
the next portion, Plaintiff states that he did not believe that the ASP was effective until he signed
it and that because he signed it on March 11, that the end date would be June 11. [Id., at 176:9–
13]. However, there is no indication that this belief actually altered the start or end date, and
Plaintiff does not cite to any evidence that Defendant misled his as to the start or end date. Third,
Plaintiff cites to the ASP itself. However, the ASP plainly states the start and end dates as 3/7/16
and 6/6/16. [216-2, at 74]. Plaintiff and Coha signed the ASP on March 11, 2016, but nothing on
the ASP states that the date it was signed affected its effective date.8 [Id., at 75]. Thus, the Court
did not err in concluding that the ASP began on March 7, 2016 and was originally set to end on
June 6, 2016.
e.

Contradictory Performance Expectations

Plaintiff argues that the Court misunderstood “the fundamentals of plaintiff’s argument
concerning contradictory performance expectations,” explaining that Plaintiff should have been

8

The Court notes that, immediately above the signature line, the Plan states that “if immediate improvement
is not observed or if there is deterioration in any other aspect of performance, further disciplinary action up
to and including termination may be recommended prior to the end of the Associate Success Plan,”
indicating that Plaintiff could be terminated prior to the end of the ASP regardless. [216-2, at 75].
13

held to the lower Darwin criteria as opposed to the criteria in his ASP. [257, at 12 (emphasis
omitted)]. Plaintiff goes on to explain that Defendant “deliberately tie[d] plaintiff’s hands through
its conflation of Darwin and FSAE criteria and restrictions in order to undermine his ability to
meet the ASP requirements.” [Id.]. However, as the Court explained, Defendant established the
ASP prior to any potential protected activity,9 so “even if Plaintiff’s ASP was more difficult to
accomplish under the Darwin Program, Defendant did not create this difficulty to retaliate against
Plaintiff.” [238, at 18]. In a retaliation case, the issue is not whether the employer treated an
employee unfairly—it is whether any unfair treatment was motivated by protected activity.
Plaintiff also argues that the Court’s order is internally contradictory because it concluded
that “in general, Account Managers were expected to have a Pipeline of $350,000” but evaluated
Plaintiff’s performance using the $1 million Pipeline criteria in his ASP. [257, at 12]. But this is
not contradictory. Instead, it can both be true that in general, Darwin Account Managers were
expected to have a Pipeline of $350,000, but that in Plaintiff’s specific case, he was expected to
have a Pipeline of $1 million. In fact, Plaintiff averred that during the rollout of the Darwin
program, Defendant told him that “until further notice, [he] was only expected to have $350,000
in [his] Pipeline.” [226-3, at ¶ 9]. Plaintiff was clearly given notice of the changed Pipeline
expectation when Coha provided Plaintiff with the ASP.

And, again, because Defendant

established Plaintiff’s ASP prior to any protected activity, holding Plaintiff to higher standards
than other Darwin Account Managers could not have been in retaliation for protected activity.

9

Plaintiff states that it is “[u]ndisputed that Coha first presented the ASP to Plaintiff on the afternoon of
March 7, 2016.” [226, at 23 ¶ 26]. Plaintiff did not discuss the Clax Mild Forte issue with Coha until
March 8, 2016 [226-3, at ¶ 23], and Defendant did not learn of Plaintiff’s jury duty until mid-April 2016
[226-3, at ¶ 26]. Therefore, the ASP predates any protected activity.
14

f.

Number of Selling Appointments

Plaintiff argues that the Court erred evaluating whether Plaintiff met the ASP requirement
of having five meetings per week. [257, at 13]. Specifically, Plaintiff argues that Coha incorrectly
calculated Plaintiff’s meetings per week and did not take into account any holidays or vacation
days that Plaintiff had. But as the Court explained, “when one considers the underlying data
provided by Plaintiff [226-37], [226-38], and Defendant [216-4, at 49–52], it is undisputed that
Plaintiff did not consistently have five selling appointments each week. For example, the data
show that Plaintiff had three selling appointments the week of March 21, 2016, three selling
appointments the week of April 4, 2016, and three appointments the week of May 23, 2016. [2164, at 49–52]; [226-37]; [226-38].” [238, at 12]. During these three weeks, Plaintiff did not have
any scheduled vacations, jury duty, or holidays.10 [226-3, at ¶ 6].
g.

Comparison to Claver

Next, Plaintiff argues that the Court erred in its treatment of Claver as a comparator. [238,
at 13–14]. Both Plaintiff and Claver received a rating of “Does Not Meet Expectations” in their
2015 review. [216-2, at 72; 226-33, at 10]. Based on this, Plaintiff argued in his summary
judgment response that they were similarly situated employees. [225, at 10]. Plaintiff also noted
that his growth numbers were higher than Claver’s. [Id., at 9]. The Court explained that because
“growth rates depend on the amount of sales each made in the prior year * * *, comparing

10

The ASP required Plaintiff to have “5 selling appts. per week,” not an average of five appointments per week.
However, the Court recognizes that Coha’s email [216-4, at 46–47] regarding Plaintiff’s performance under the ASP
calculated the average number of meetings per week, and that this calculation used a 16-week denominator as opposed
to a 13-week one. However, even if Defendant would have determined that Plaintiff had an average of at least five
meetings per week had Coha correctly calculated the average, it would not have altered the outcome here. The ASP
states that Plaintiff’s employment could be terminated for not meeting expectations, and the ASP had three
requirements relating to Plaintiff’s meetings, wins, and Pipeline. [216-2, at 74–75]. As explained in the order [238,
at 10–11], Plaintiff did not meet the first ASP requirement regarding wins. And as explained above, even if Plaintiff
met the Pipeline requirement because Defendant improperly adjusted his Pipeline numbers, those adjustments began
at least in early-March 2016, well before Defendant learned of Plaintiff’s jury duty. Therefore, those improper
adjustments do not support a retaliation claim because they could not have been caused by Plaintiff’s jury duty.

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Plaintiff’s and Claver’s respective growth rates provides no insights into the difference between
their actual sales.” [238, at 19]. Therefore, the Court concluded that Claver was not a helpful
comparator. The Court also explained that it could not verify or rely on Defendant’s argument
that Claver’s sales numbers were actually higher than Plaintiff’s in both 2015 and 2016 because
Defendant relied on a spreadsheet that was not provided to the Court. [Id., at 19 n.8]. As explained
above, the Court now has the spreadsheet containing Plaintiff’s and Claver’s sales numbers. And,
as Defendant argued, Claver’s sales numbers were higher than Plaintiff’s. The spreadsheet shows
that in the fifth period of 2015, Claver had about $1.9 million in “YTD Sales” and Plaintiff had
about $1.3 million. [Exhibit B-28]. For 2016, those numbers were about $2.3 million and $1.9
million. [Id.]. Thus, Claver’s superior performance demonstrates that she is not a helpful
comparator. See Gaines v. K-Five Const. Corp., 742 F.3d 256, 262 (7th Cir. 2014) (explaining
that comparators “have to be ‘directly comparable to the plaintiff in all material respects’” (quoting
Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012))).
3.

Plaintiff’s Whistleblower Claims Fail as a Matter of Law

Plaintiff brought both a common law and statutory claim alleging that Defendant retaliated
against him for blowing the whistle on Defendant’s sale of Clax Mild Forte. In its order, the Court
questioned whether Plaintiff could state any Illinois whistleblower claims based on a violation of
New York law. [238, at 21–23]. The Court did not definitively resolve this question because it
concluded that Plaintiff’s whistleblower claim failed because there was no genuine dispute of
material fact as to whether Plaintiff engaged in protected activity or as to whether Defendant
engaged in retaliation. [Id., at 22–26]. However, the Court recognizes that the discussion above
calls these conclusions into question. That said, even if there is a genuine issue of material fact as

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to whether Plaintiff engaged in protected activity or whether Defendant engaged in retaliation,
Plaintiff’s whistleblower claims fail.
One of Plaintiff’s whistleblower claims is a common law retaliatory discharge claim. To
demonstrate common law retaliatory discharge, a plaintiff must show that “the discharge violates
a clear mandate of public policy.” Turner v. Mem’l Med. Ctr., 911 N.E.2d 369, 374 (Ill. 2009).
The Illinois Supreme Court has explained that “public policy concerns what is right and just and
what affects the citizens of the State collectively. It is to be found in the State’s constitution and
statutes and, when they are silent, in its judicial decisions.” Palmateer v. Int’l Harvester Co., 421
N.E.2d 876, 878 (Ill. 1981). That said, Illinois has expanded the tort to include reporting violations
of certain federal laws, suggesting that more than just the State’s constitution, statutes, and
decisions are relevant. Illinois courts “have explicitly stated that it is a clearly established policy
of Illinois to prevent its citizens from violating federal law and that the state’s public policy
encourages employees to report suspected violations of federal law if that law advances the general
welfare of Illinois citizens.” Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936, 42
(7th Cir. 2002). Not all whistleblowing regarding federal law gives rise to Illinois public policy
concerns; instead, the federal law must be related to the to “a social duty or responsibility, or
promote the health and welfare of the citizenry.” Leweling v. Schnadig Corp., 657 N.E.2d 1107,
1112 (Ill. App. 1995) (declining to permit retaliatory discharge claim based on a federal law that
“does not affect the overall welfare of citizens”); see also Pratt v. Caterpillar Tractor Co., 500
N.E.2d 1001, 1003 (Ill. App. 1986) (finding that Plaintiff could not state retaliatory discharge claim
based on federal laws that “cannot be said to enunciate a clearly mandated public policy of this
State”); cf. Russ v. Pension Consultants Co., 538 N.E.2d 693, 697 (Ill. App. 1989) (permitting
retaliatory discharge claim based on federal tax laws in part “because falsification of federal tax

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records could also mean the falsification of state tax records” and therefore “the underpayment of
federal income taxes could result in the underpayment of state taxes); Wheeler v. Caterpillar
Tractor Co. 485 N.E.2d 372, 377 (Ill. 1985) (finding that the plaintiff could state a retaliatory
discharge claim based on refusal to violate the federal Energy Reorganization Act because
“protection of the lives and property of citizens from the hazards of radioactive material” is an
important Illinois public policy).
Here, Plaintiff contends that he refused to participate in a sale of detergent to a client in
New York that would violate New York law regulating how much of a certain chemical could be
present in detergent sold in New York. This New York law does not “affect[] the citizens of the
State.” Palmateer, 421 N.E.2d at 880. Further, given that common law retaliatory discharge is
“limited and narrow,” Turner, 911 N.E.2d at 374, it is hard to imagine Illinois courts basing the
tort on violations of a law that was enacted by a different state’s legislature and that is meant to
protect citizens of a different state. And it is certainly not the role of a federal court to make such
an expansion. As explained in the order, the Court located only one decision in which an Illinois
court permitted a retaliatory discharge claim based on the law of another state. In Reinneck v.
Taco Bell Corp., 696 N.E.2d 839 (Ill. App. 1998), the Illinois Appellate Court found that “it is
against Illinois public policy to terminate an employee for the assertion of another state’s workers’
compensation rights.” In doing so, the court explained that “Illinois has long recognized the tort
of retaliatory discharge for exercising rights to workers’ compensation” and that its holding was
“not an expansion of the tort.” Id. at 842. Here, on the other hand, recognizing a retaliatory
discharge claim based on a New York environmental law that protects New York citizens would
certainly be an expansion of this limited and narrow tort. See Huang v. Fluidmesh Networks, LLC,
2017 WL 3034672, at *7 (N.D. Ill. July 18, 2017) (declining to find that the plaintiff stated a

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retaliatory discharge claim when the plaintiff’s “allegations d[id] not establish that the reported
activities had any connection to or effect on Illinois” and recognizing “the limited and narrow
construction of the tort in Illinois law”).
Plaintiff brought his statutory claim under the provision of the Illinois Whistleblower Act
(“IWA”) providing that “[a]n employer may not retaliate against an employee for refusing to
participate in an activity that would result in a violation of a State or federal law, rule, or
regulation.” 740 Ill. Comp. Stat. 174/20. The issue here is whether “State” refers to only Illinois
or to any state. Neither party has cited and the Court has not located any binding or persuasive
law on this issue, and therefore the Court interprets the statute. In interpreting Illinois law, the
Court applies Illinois rules of statutory interpretation. See Adams v. Catrambone, 359 F.3d 858,
862 (7th Cir. 2004). The Illinois Supreme Court has explained that “the primary rule of statutory
construction is to ascertain and give effect to the intent of the legislature” and that the “best
evidence of legislative intent is the statutory language.” People v. Donoho, 788 N.E.2d 707, 715
(Ill. 2003). “Words and phrases should not be considered in isolation; rather, they must be
interpreted in light of other relevant provisions and the statute as a whole.” Cnty. of Du Page v.
Illinois Lab. Rels. Bd., 900 N.E.2d 1095, 1101 (Ill. 2008). “[I]n interpreting the statutory language,
[courts] may consider the purpose and necessity for the law, the evils sought to be remedied, and
the goals to be achieved.” Andrews v. Metro. Water Reclamation Dist. of Greater Chi., 160 N.E.3d
895, 904 (Ill. 2019).
In his summary judgment response brief, Plaintiff emphasizes that the statute reads “a State
or federal law, rule, or regulation” and states that “[u]nder the clear language of the statute, the
law need not be an Illinois law.” [225, at 11]. Defendant argues that “State” refers to Illinois
because it is capitalized, which is “consistent with the definition of ‘State’ in analogous Illinois

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statutes such as the Illinois False Claims Act.” [228, at 14 n.8]. Defendant has the better argument.
First, Plaintiff does not explain why the “a” in front of “State” means that the IWA encompasses
refusals to violate a law of any state. To Plaintiff’s point, indefinite articles such as “a” point to a
nonspecific object, thing, or person, suggesting that “a state” would mean any state. See THE
CHICAGO MANUAL OF STYLE ¶ 5.72 (17th ed. 2017). However, under Plaintiff’s reading of the
statute, “a” would modify “State” and not each of the nouns in the list. This cannot be the case
because “a” is an article, which is a limiting adjective that precedes a noun or noun phrase. Id. at
¶ 5.70. And in this sentence, “State” is used not as a noun but as an adjective modifying “law,
rule, or regulation.” Further, it is not necessary to include, and indeed common to omit, articles
before each item in a series of coordinate nouns, explaining why “a” appears only before and not
within the list. See id. at ¶ 5.75. Additionally, Plaintiff’s argument does not explain why “State”
is capitalized if it refers to any state, particularly given that “federal” is not capitalized.
Defendant’s interpretation, in contrast, does not run into these grammatical pitfalls and is
supported by other rules of Illinois statutory interpretation. As Defendant notes, other Illinois
statutes in the same chapter as the IWA, such as the Illinois False Claims Act, use “State” to refer
to Illinois. See 740 Ill. Comp. Stat. 175/2 (“‘State’ means the State of Illinois * * *.”). Further,
“State” is used as an adjective elsewhere in the IWA, and its usage in those provisions would not
be logical if it referred to all states. For example, the IWA regulates employers, and when defining
“employer,” the IWA includes a “State college or university” and certain “State agenc[ies].” 740
Ill. Comp. Stat. 174/5. Given that “a ‘statute is without extraterritorial effect unless a clear intent
in this respect appears from the express provisions of the statute,” Avery v. State Farm Mut. Auto.
Ins. Co., 835 N.E.2d 801, 852 (Ill. 2005) (quoting Dur–Ite Co. v. Industrial Comm’n, 68 N.E.2d
717, 722 (Ill. 1946)), it seems very unlikely that the legislature would attempt to regulate

20

universities and colleges in other states without plainly stating so. And it is unclear whether the
Illinois General Assembly even has the power to regulate agencies of other states. Therefore,
“State” as used in this definition section refers to Illinois. Because words “must be interpreted in
light of other relevant provisions and the statute as a whole,” the best interpretation of section 20
of the IWA is that it refers to an Illinois state law, rule, or regulation. Cnty. of Du Page, 900
N.E.2d at 1101. Accordingly, Plaintiff cannot make out a claim based on refusing to participate
in a violation of New York law.
***
In short, the Court’s conclusion that Defendant is entitled to summary judgment has not
changed, even with the additional spreadsheets and even considering certain factual issues
differently. Therefore, Plaintiff’s motion to alter or amend [244] is denied.
IV.

Conclusion
For the reason explains above, the Court grants in part and denies in part Plaintiff’s motion

to supplement the record [251] and denies Plaintiff’s motion to amend [244].

Dated: August 2, 2021

__________________________
Robert M. Dow, Jr.
United States District Judge

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