Tuhey v. Illnois Tool Works, Inc.

Filing 20

ENTER MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 8/2/2017:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN M. TUHEY,
Plaintiff,
Case No. 17 C 3313
v.
Judge Harry D. Leinenweber
ILLINOIS TOOL WORKS, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Rule 12(b)(6) Motion to Dismiss
[ECF No. 8].

For the reasons to follow, the Motion is granted in

part and denied in part.
prejudice.

Counts IV and VI are dismissed without

Count VII is dismissed with prejudice.
I.

To

redress

wrongs

BACKGROUND

allegedly

visited

upon

him

by

his

former

employer, Plaintiff John M. Tuhey (“Tuhey”) filed this lawsuit under
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq. (the “ADA”), the Family and Medical Leave Act of 1993, 29
U.S.C.

§ 2601

et

Income

Security

seq.
Act,

(the
29

“FMLA”),

U.S.C.

the

§ 1001

Employee
et

seq.

Retirement

and

(“ERISA”),

and

Illinois common law.
The

following

facts

are

drawn

from

Tuhey’s

First

Amended

Complaint and are, for purposes of this Motion, accepted as true,

with all reasonable inferences drawn in his favor.

See, e.g., Adams

v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2015).
Illinois Tool Works, Inc. (“ITW”) hired Tuhey in 2005 as an
associate general counsel.

(ECF No. 12 (“FAC”) ¶ 7.)

Years of

bonhomie ensued, and ITW showered Tuhey with “positive reviews and
corresponding raises and bonuses” until November 2014, when he was
hospitalized
vomiting

after

with

a

what

spate

of

doctors

dizziness,

diagnosed

fatigue,

initially

as

nausea,

and

“vestibular

neuritis and/or some sort of virus.”

(Id. ¶¶ 8, 9.) ITW designated

the

as

time

Tuhey

Immediately

spent

following

hospitalized
his

FMLA

hospitalization

leave.

and

until

(Id.

¶ 8.)

December

3,

2014, Tuhey continued to suffer the same symptoms and accordingly
worked

full-time

from

home.

(Id.

¶

10.)

ITW

“inappropriately

designated this period of time as FMLA leave.” (Id. ¶ 11.)
returned

to

work

in

early

December

2014

continuing to work from home as needed.

on

a

reduced

Tuhey

schedule,

(Id. ¶ 12.)

By January 2015, Tuhey had experienced overall improvement in
his condition.

So he returned to work on a full-time schedule,

spending much of that month traveling.

(FAC ¶ 13.) Unhappily, “on

or around February 25, 2015, Plaintiff suffered a severe reaction to
a newly prescribed medication which forced him to work from home for
two weeks.” (Id. ¶ 15.)

ITW again designated this time as FMLA

leave despite Tuhey’s working full-time. (Id. ¶ 16.)
- 2 -

When Tuhey

returned

to

the

office

after
“asked

Counsel,

Maria

Green,

questions

about

his

this

health,”

second

him

cast

illness,

many

probing

aspersions

on

ITW’s
and

his

suggested that Tuhey take full-time medical leave.

General

intrusive

memory,

and

(Id. ¶ 17.)

Tuhey declined to do so, and he subsequently lodged a complaint with
ITW’s

human

resources

director

that

“he

believed

Ms.

Green

was

discriminating against him because of his medical condition and time
off.”

(Id. ¶ 18.) No action was taken, and instead Green informed

Tuhey in April 2015 that he was no longer to report to her but
instead to a deputy general counsel, Mr. Derek Linde, making “it
appear to others as if Plaintiff had been demoted.”

(Id. ¶ 19.)

Meanwhile, Tuhey’s symptoms recurred and were accompanied by
global swelling, leading his doctors to revise their diagnosis from
“some sort of virus” to “a brain injury . . . impacting his central
nervous system.”
doctors

(FAC ¶ 20.)

requested

that

ITW

intermittently as needed.

On May 8, 2015, one of Tuhey’s
allow

(Id. ¶ 21.)

him

to

work

from

home

Instead of granting this

request, ITW informed Tuhey that he had exhausted his FMLA leave and
short-term disability benefits such that he would be terminated and
lose his insurance unless he applied for long-term disability. (Id.
¶

22.)

At

this

point,

Tuhey

charged

ITW

management

with

inappropriately debiting his FMLA and short-term disability banks
for days when he had been working full-time from home. (Id. ¶ 23.)
- 3 -

Throughout the balance of his employment with ITW, Tuhey reprised
this grievance, but ITW never resolved the issue. (Ibid.)

On July

1, 2015, further to evaluating Tuhey’s work-from-home accommodation
request, ITW sought and was provided with more information from his
doctor about Tuhey’s condition. (Id. ¶¶ 24-25.)
persisted in not granting the accommodation.

Nevertheless, ITW

(Id. ¶¶ 25-26.)

In October 2015, Linde sent Tuhey an email review criticizing
his

performance

that

was

replete

with

“false

statements

of

fact

about Plaintiff’s performance including falsely accusing Plaintiff
of refusing to provide legal advice to the business leaders.”
¶ 27.)

Linde “communicated the allegations in this email to others

in the law department including Maria Green.” (Ibid.)
later

(FAC

in

February

2016,

Tuhey

was

up

for

an

A few months

annual

performance

review, and this report too contained “a myriad of new, alleged
false performance accusations which rated him as failing to meet
expectations.”

(Id.

¶ 28.)

The

October

2015

and

February

2016

reviews constituted Tuhey’s first negative performance reviews in
his 10 years at ITW. (Id. ¶¶ 27-28.)

Tuhey made known his belief

that his February 2016 annual review “was related to his disability
and request for accommodation.” (Id. ¶ 28.)

The next day, Linde and

an individual from ITW’s human resources division informed Tuhey
“that there was no longer a job for him at Defendant and that he was
not eligible to be placed on a Performance Improvement Plan since he
- 4 -

was ‘too senior’ an attorney and would be unable to change to meet
their

needs.”

terminated.
that

(Ibid.)

(Ibid.)

eligibility

informed

Tuhey

Effective

His

for
that

February

15,

departing

employee

documentation

benefits
he

had

ends
a

upon

right

2016,

termination,

to

convert

Tuhey

and

his

was

stated
no

one

long-term

disability plan to an individual plan – something he learned too
late to effect a conversion.

(Id. ¶ 29.)

Tuhey now knows that his

symptoms are the result of “a degenerative neurological condition.”
(Id. ¶ 30.)
On April 19, 2016, Tuhey filed EEOC charges challenging ITW’s
conduct.

He received his right-to-sue letter on May 23, 2017 and

then filed the Amended Complaint now subject to ITW’s Rule 12(b)(6)
Motion to Dismiss.
II.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a complaint “must
state a claim that is plausible on its face.”

Adams, 742 F.3d at

728 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A

claim

enjoys

sufficient

“facial

factual

plausibility

content

that

when

allows

the

the

plaintiff

court

to

pleads

draw

the

reasonable inference that the defendant is liable for the alleged
misconduct.”

Adams, 742 F.3d at 728 (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)).

A plaintiff need not plead the elements of a

prima facie case in haec verba to survive a motion to dismiss.
- 5 -

See,

Twombly,

550

U.S.

at

569

(“[W]e

do

not

require

heightened

fact

pleading of specifics, but only enough facts to state a claim to
relief

that

is

“[t]hreadbare

plausible

recitals

of

on

its

face.”).

the

elements

of

To
a

the

cause

contrary,
of

action,

supported by mere conclusory statements, do not suffice.”

Iqbal,

556 U.S. at 678. Simply put, a complaint passes Rule 12 muster so
long as it invokes a recognized legal theory and contains plausible
allegations on the material issues.

See, Richards v. Mitcheff, 696

F.3d 635, 638 (7th Cir. 2012).
III.

ANALYSIS

Tuhey brings claims for intentional discrimination, failure to
accommodate,

and

retaliation

under

the

ADA;

interference

and

retaliation under the FMLA; defamation under Illinois law based on
the allegedly false statements surrounding his negative performance
reviews; and breach of fiduciary duty under ERISA for ITW’s failure
to inform him of the right to convert his disability policy.

Based

on a mélange of arguments, ITW has moved to dismiss the non-ADA
counts, contending that Tuhey fails to state a claim on which relief
can be granted.
A.

Count IV:

FMLA Interference

The FMLA entitles an employee “afflicted with a ‘serious health
condition’ which renders her unable to perform her job” to twelve
weeks of leave per twelve-month period.
- 6 -

Smith v. Hope Sch., 560

F.3d 694, 699 (7th Cir. 2009) (quoting 29 U.S.C. § 2612(a)(1)(D)).
An employer who interferes with, restrains, or denies an employee’s
exercise of or attempt to exercise any right provided under the FMLA
violates the Act.

See, 29 U.S.C. § 2615(a)(1); see also, Preddie v.

Bartholomew Consol. Sch. Corp., 799 F.3d 806, 816 (7th Cir. 2015).
A plaintiff need only show that his employer deprived him of an FMLA
entitlement; no finding of ill intent is ultimately required.

See,

Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006); accord,
Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 995 (7th Cir. 2010).
In

a

lawsuit

alleging

violation

of

the

FMLA,

the

statute

authorizes recovery of compensatory damages equal to the amount of
wages,

salary,

employee

was

employment

denied

§ 2617(a)(1)(A)(i).
as

“employment,

or

lost,

along

reinstatement,
The

include

distress,

emotional

or

other

with

compensation

interest.

29

the

U.S.C.

It also provides for equitable remedies, such

§ 2617(a)(1)(B).

damages.

benefits,

remedies

and

promotion.”

available

under

consequential,

29

the

punitive,

FMLA
or

U.S.C.
do

not

nominal

See, e.g., Nero v. Indus. Molding Corp., 167 F.3d 921, 930

(5th Cir. 1999) (finding consequential damages unrecoverable under
the FMLA); Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278
(10th Cir. 2001) (“Because nominal damages are not included in the
FMLA’s

list

of

recoverable

damages,

nor

can

any

of

the

listed

damages be reasonably construed to include nominal damages, Congress
- 7 -

must not have intended nominal damages to be recoverable under the
FMLA.”);

Breneisen

v.

Motorola,

Inc.,

No. 02

C

50509,

2009

WL

1759575, at *7 (N.D. Ill. June 22, 2009) (“Numerous courts have
found

that

Congress

intended

the

specific

remedies

set

forth

in

§ 2617 to be the exclusive remedies available for a violation of the
FMLA.”) (internal quotation marks and quotation omitted) (collecting
cases); Lloyd v. Wyoming Valley Health Care Sys., Inc., 994 F.Supp.
288,

291-92

(M.D.

Pa.

1998)

(finding

emotional

distress

damages

unavailable under the FMLA).
To

prevail

ultimately

prove

on

his

that:

FMLA-interference
(1)

he

was

theory,

eligible

for

Tuhey
the

must
FMLA’s

protections; (2) ITW was covered by the FMLA; (3) he was entitled to
take leave under the FMLA; (4) he provided sufficient notice of his
intent to take leave; and (5) ITW denied him FMLA benefits.

See, 29

U.S.C. § 2615(a)(1); Pagel v. TIN, Inc., 695 F.3d 622, 627 (7th Cir.
2012).

ITW does not contest that Tuhey levies plausible allegations

with respect to these elements, but instead contends that Tuhey is
ineligible for any recovery because he has not claimed any actual
damages

or

interference.
inappropriate

prejudice
The

to

him

gravamen

deduction

“from

by

virtue

of

Tuhey’s

his

FMLA

of

its

claim

bank,”

alleged
seems

leading

FMLA

to
to

be

ITW’s

refusal in May 2015 “to provide him protected leave beyond that” and
Tuhey’s “suffer[ing] loss of FMLA leave.” (FAC ¶¶ 49-50.)
- 8 -

As a

result, Tuhey requests “a finding that Defendant interfered with his
FMLA rights” and an award of “any and all damages available under
the statute.” (FAC ¶ 52.)

Tuhey does not seek equitable relief.

While true that “section 2617 provides no relief unless the
plaintiff

can

prove

that

he

was

prejudiced

by

the

violation,”

Franzen v. Ellis Corp., 543 F.3d 420, 426 (7th Cir. 2008) (citing
Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81, 89 (2002)),
section

2617

contemplates

cases

where

“wages,

salary,

employment

benefits, or other compensation have not been denied or lost to the
employee.”

29

U.S.C.

§

2617(a)(1)(A)(i)(II).

Still,

“actual

monetary losses” must have been sustained “as a direct result of the
violation, such as the cost of providing care.” Ibid.

Tuhey admits

that he “did not plead monetary damages” but argues that the mere
unjustified

reduction

in

the

amount

of

FMLA

days

itself

actionable FMLA interference. (ECF No. 14 (“Pl.’s Br.”) at 5.)

is

an

What

impedes plausibility here is Tuhey’s failure – but one capable of
being remedied - to state how ITW’s alleged FMLA interference caused
him any actual monetary loss.
Reading the Complaint leaves one with the impression that Tuhey
is either complaining that ITW’s charging his FMLA banks when he was
working

from

home

undercompensated

him

(but

without

professing

receipt of less salary or fewer other benefits) or that he should
have been able to take further FMLA leave in 2015 (in which case any
- 9 -

monetary

loss

most

directly

depends

policy was paid or unpaid).

on

whether

ITW’s

FMLA

leave

(The uncertainty here is partly a

function of the fact that the FMLA does not require paid leave.
See, 29 U.S.C. § 2612(c); see also, Lee v. City of Elkart, Ind., 602
Fed.Appx. 335, 337 (7th Cir. 2015).)

To be sure, additional unpaid

FMLA leave could conceivably have allowed Tuhey the repose necessary
for his medical ailments to improve in some way capable of pecuniary
measure –

although

at

the

expense

received while not on leave.

of

compensation

he

presumably

But without alleging how, for example,

ITW’s interference with his FMLA leave engendered some monetary loss
vis-à-vis his medical needs, Tuhey cannot base his action for FMLA
interference on the allegations currently pled. See, e.g., Cianci v.
Pettibone

Corp.,

152

F.3d

723,

728-29

(7th

Cir.

1998)

(granting

summary judgment to employer because plaintiff “did not suffer any
diminution of income, and, on the record before us, incurred no
costs as a result of the alleged violation,” nor did she request
equitable

relief).

In

the

same

vein,

any

inference

that

such

alleged interference caused Tuhey actual damages in the form of lost
income

attributable

to

his

termination

–

because,

for

example,

having to work through the pain degraded his job performance - is
incompatible

with

Tuhey’s

insistence

that

he

continued

doing

an

exemplary job (and with his suing for defamation based on negative
performance reviews).
- 10 -

For these reasons, the Court grants ITW’s Motion to Dismiss in
relevant part.

However, the dismissal is without prejudice to Tuhey

re-pleading the issue of damages.
B.

Count V: FMLA Retaliation

In addition to the interference prohibitions, the FMLA also
proscribes retaliation against an employee who exercises or attempts
to exercise FMLA rights.
Pagel, 695 F.3d at 631.

See, 29 U.S.C. § 2615(a)(2); see also,
Retaliation in this context means counting

“an employee’s use of FMLA leave as a negative factor in promotion,
termination,

and

other

employment

decisions.”

Ibid.

(citing

Breneisen v. Motorola, Inc., 512 F.3d 972, 978 (7th Cir. 2008)).
“The difference between a retaliation and interference theory is
that

the

first

requires

proof

of

discriminatory

or

retaliatory

intent while an interference theory requires only proof that the
employer denied the employee his or her entitlements under the Act.”
Goelzer,

604

F.3d

at

995

(internal

brackets,

quotation,

and

quotation marks omitted).
A

plaintiff

Tuhey,

does

suing

not

allege

ultimately show that:
employer
there

is

took
a

an

on

FMLA

retaliation

similarly

situated

theory

who,

comparators

like
must

(1) he engaged in protected activity; (2) his

adverse

causal

an

employment

connection

action

between

the

against
two.

him;
See,

and

(3)

Malin

v.

Hospira, Inc., 762 F.3d 552, 562 (7th Cir. 2014); Pagel, 695 F.3d at
- 11 -

631.

(Negative

performance

employment actions.

evaluations

may

constitute

adverse

Silverman v. Bd. of Educ. of Chicago, 637 F.3d

729, 741 (7th Cir. 2011).)

Typically, to show the causal nexus

between

and

protected

plaintiff

points

activity
to

a

direct

adverse
admission

employment
from

the

action,
employer

a
or

circumstantial evidence of retaliatory intent – including suspicious
timing and ambiguous oral or written statements.

See, Carter v.

Chicago State Univ., 778 F.3d 651, 657 (7th Cir. 2015) (noting also
that such circumstantial evidence “may be combined to support an
inference of discriminatory intent”).
ITW does not dispute that Tuhey adequately alleges protected
activity and adverse employment actions against him. Instead, ITW
argues

that

temporal
activity

the

chasm
and

Court
yawning

suffering

can

draw

no

between
an

causation

Tuhey’s

adverse

inference

engaging

employment

in

action.

from

the

protected
But

ITW’s

argument hinges on the straw man that Tuhey’s only FLSA-protected
activity occurred in May 2015, when he first complained to ITW “that
it had violated the FMLA by inappropriately charging his FMLA and
short-term disability banks for the days/times he was working from
home.”

(FAC ¶ 23.) Tuhey goes on to allege, however, that “[f]rom

then until the time of his termination” the parties went “back and
forth as to the amount of FMLA time that he should be charged.”
(Ibid. (emphasis added); see also, id. ¶ 54 (“Plaintiff engaged in
- 12 -

protected conduct when he complained about the miscalculation of his
FMLA leave and violations of the statute.”).)

His claims further

sustain the inference that, in addition to termination, the negative
performance reviews he received in October 2015 and February 2016
were

adverse

employment

actions.

(See,

id.

¶

55

(“Defendant

intentionally retaliated against Plaintiff by issuing him a false
and defamatory performance review and terminating him.”).)
Taking as true the allegations in Tuhey’s Complaint – which the
Court

must

do

at

this

stage

–

leads

to

the

conclusion

that

he

engaged in FLSA-protected activity sufficiently close to when he was
reviewed unfavorably in October 2015 and then in February 2016, a
review shortly followed by his termination, to support a reasonable
inference of causation.

This renders the case materially different

from Johnson v. Cent. States Funds, No. 13 C 5717, 2014 WL 3810641
(N.D. Ill. July 31, 2014), and the summary judgment case of Chatman
v. Morgan Lewis & Bockius LLP, No. 10 C 4679, 2015 WL 1744120 (N.D.
Ill. Apr. 14, 2015), in which four and eight months, respectively,
between

protected

grounds

to

activity

establish

FMLA

and

termination

retaliation.

failed

See,

on

causation

Johnson,

2014

WL

3810641, at *3; Chatman, 2015 WL 1744120, at *11.
Further,

even

if

Tuhey’s

repeated

FMLA

complaints

cannot

independently support timing-based causation because ITW was already
on notice as of May 2015 of his protected activity, “intervening
- 13 -

events

may

demonstrate

plausible

bolster a causation inference.

retaliatory

animus”

so

as

to

Bowman v. Balt. City Bd. of Sch.

Comm’rs, 173 F.Supp.3d 242, 249-50 (D. Md. 2016) (observing that,
although

three

months

passed

between

direct

complaint

and

complained-of adverse employment action, other events in the interim
could be seen as retaliatory so as to support causation); accord,
Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007); Farrell
v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000).

In

Tuhey’s case, on July 1, 2015, instead of granting his requested
work-from-home
intertwined

disability

with

his

accommodation

complaints

about

–
FMLA

something

factually

designation

of

his

previous days working from home - ITW sought more information from
Tuhey’s
responded

doctor.

(FAC

with

¶

24.)

After

information

Tuhey’s

supporting

doctor

the

“promptly

request

for

accommodation,” ITW nevertheless “still refused to grant” it. (Id.
¶ 25.)
preceding

Thus,
at

by

least

alleging
his

these

October

plausibly

2015

retaliatory

performance

review,

events
Tuhey

survives ITW’s attempt to dismiss Count V even if his May 2015 FMLA
complaint is the only instance of protected activity relevant for
causation purposes.
The cases ITW cites for the proposition that suspicious timing
alone does not support retaliation liability were decided on summary
judgment, not at the motion-to-dismiss stage.
- 14 -

See, e.g., Burks v.

Wis. DOT, 464 F.3d 744, 758-59 (7th Cir. 2006) (appeal from summary
judgment) (noting that the plaintiff had not met her burden of proof
because ”suspicious timing alone . . . does not support a reasonable
inference

of

retaliation”);

Stone

v.

City

of

Indianapolis

Pub.

Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002) (appeal from summary
judgment)

(“[M]ere

temporal

proximity

between

the

filing

of

the

charge of discrimination and the action alleged to have been taken
in retaliation for that filing will rarely be sufficient in and of
itself to create a triable issue.”).
discovery,

retaliation

plaintiffs

Before having the benefit of

often

can

suffuse

their

claims

with nothing more than allegations of suspicious timing. That does
not render them implausible.

See, e.g., American Civ. Lib. Union of

Illinois v. City of Chicago, No. 75 C 3295, 2011 WL 4498959, at *3
(N.D. Ill. Sept. 23, 2011) (“[T]he fact that the Seventh Circuit
held

that

evidence

it

the

is

not

plaintiff

reasonable
has

to

proffered

infer

retaliation

suggests

nothing

when
more

the
than

suspicious timing, despite ample time for discovery, does not mean
that a plaintiff who fails to allege anything more than suspicious
timing

will

not

be

able

to

survive

a

motion

to

dismiss.

Accordingly, it is no surprise that the City fails to point to, and
this court is not aware of, any cases in which a court relied upon
this Burks holding when analyzing a motion to dismiss.”)

- 15 -

The

Court

therefore

denies

ITW’s

Motion

to

Dismiss

as

to

Count V.
C.

Count VI: Defamation

To state a claim for defamation, a plaintiff must allege (1)
that the defendant made a false statement concerning him and (2)
that there was an unprivileged publication to a third party with
fault by the defendant, (3) which caused damage to the plaintiff.
Kransinski v. United Parcel Serv., Inc., 530 N.E.2d 468, 471 (Ill.
1988).

However, certain defamatory statements are actionable per se

– that is, without allegations or proof of actual damage - because
of

their

presumed

reputation.

materially

harmful

effect

on

the

plaintiff’s

Among these are statements “imputing an inability to

perform or want of integrity of duties of office or employment” and
those “that prejudice a party, or impute lack of ability, in his or
her trade, profession or business.”
898, 903 (Ill. 1999).

Van Horne v. Muller, 705 N.E.2d

Tuhey claims defamation of this variety,

rendering allegations of actual damages inessential here.
ITW first contends that Tuhey’s defamation claim is time-barred
as it relates to statements allegedly made and published incident to
Tuhey’s October 2015 performance review.

In Illinois, “[a]ctions

for slander [and] libel . . . shall be commenced within one year
after the cause of action accrued.” 735 Ill. Comp. Stat. 5/13-201.
Indeed, Tuhey concedes that any statements arising out of his first
- 16 -

performance review are barred by the statute of limitations.
seeks

instead

to

recover

for

February 2016 annual review.

alleged

falsehoods

He

surrounding

his

(Tuhey and ITW apparently entered into

a tolling agreement beginning January 30, 2017, such that “to the
extent Tuhey’s defamation claim is based on alleged events after
January 30, 2016, it is not time-barred.”

(ECF No. 9 (“Def.’s

Mem.”) at 8 n.3.))
However, to the extent Count VI is timely, it fails to state a
defamation claim for the simple reason that Tuhey does not allege
publication

of

the

allegedly

“false

performance

accusations”

attending his February 11, 2016 review to anyone other than himself.
(Compare,

FAC

¶

27

(“Mr.

Linde

communicated

the

[October

2015]

allegations in this email to others in the law department including
Maria

Green.”);

with,

id.

¶

28

(“Mr.

Linde

gave

Plaintiff

his

[February 2016] annual performance review. . . . Plaintiff responded
by

saying

disability

he

believed

and

request

the

negative

for

review

was

related

accommodation.”).)

Although

to

his

Tuhey

alleges the involvement of one other person in his termination – an
individual from ITW’s human resources department – nowhere does he
allege that Linde’s false accusations in his performance review were
published to her.

Therefore, Tuhey fails to allege facts supporting

publication

third

to

a

party

–

the

liability.
- 17 -

sine

qua

non

of

defamation

As

such,

the

Court

dismisses

Count

VI

but

does

so

without

prejudice, as Tuhey may be able to aver plausible publication to
others of the allegedly false statements surrounding his February
2016 performance review.
D.
ERISA

Count VII: Breach of Fiduciary Duty under ERISA
statutorily

obligates

a

fiduciary

to

discharge

duties

with respect to a plan “solely in the interests of the participants
and beneficiaries” with the care, skill, prudence, and diligence a
prudent

person

would

use

and

in

instruments governing the plan.
duty

also

implicates

accordance

with

documents

See, 29 U.S.C. § 1104(a).

‘[c]onveying

information

about

the

and

“This
likely

future of plan benefits, thereby permitting beneficiaries to make an
informed choice about continued participation.’”

Herman v. Cent.

States, Se. and Sw. Areas Pension Fund, 423 F.3d 684, 695 (7th Cir.
2005) (quoting Varity Corp. v. Howe, 516 U.S. 489, 502 (1996)).
state

a

plaintiff

claim
must

for

breach

establish:

of

fiduciary

(1)

that

duty

the

under

defendant

ERISA,
is

a

To
the
plan

fiduciary; (2) that the defendant breached its fiduciary duty; and
(3) that the breach caused harm to the plaintiff.

See, e.g., Kamler

v. H/N Telecomm. Serv., Inc., 305 F.3d 672, 681 (7th Cir. 2002).
Tuhey’s claim for breach of fiduciary duty is based on the
alleged failure of ITW upon his termination to “inform Plaintiff of
his right to convert the long-term disability plan to an individual
- 18 -

plan.” (FAC ¶ 29.)
he

could

have

When Tuhey learned more than a year later that

converted

benefits

vested

under

ITW’s

long-term

disability policy, it was too late for him to glean any residual
benefits.

(Ibid.)

Although

Tuhey

avers

that

ITW

provided

him

“information to the contrary” about his right to convert (id. ¶ 65),
the only meat on these bones is his allegation that ITW provided
“documentation

regarding

his

employee

benefits”

stating

that

his

“eligibility for disability benefits would end on the date of his
termination.”

(Id.

¶

29.)

Tuhey

does

not

claim

that

the

documentation he received failed to meet ERISA’s strictures or that
plan

documents

required

ITW

affirmatively

to

notify

him

upon

termination of his right to convert.
Tuhey’s claim founders on the issue of ITW’s fiduciary duty to
provide the information at issue.
arose

from

his

idiosyncratic

Because Tuhey’s right to convert

circumstances

–

namely,

termination

coupled with ongoing health issues that could qualify him for longterm

disability

–

the

danger

of

overburdening

the

fiduciary

recognized by the Seventh Circuit precludes recovery for the alleged
lack of disclosure here.

See, e.g., Cummings by Techmeier v. Briggs

& Stratton Ret. Plan, 797 F.2d 383, 387 (7th Cir. 1986) (holding
that

fiduciaries

attention

to

are

not

participants,

required
as

where

to
an

provide

employee

individualized
failed

to

elect

survivorship option due to mental confusion); cf., Bowerman v. Wal- 19 -

Mart Stores, Inc., 226 F.3d 574, 590 (7th Cir. 2000) (“In this case,
the information the Plan should have provided . . . would not have
been information unique to her situation; rather, the information
she

needed

would

have

been

information

relevant

to

all

Plan

participants who were rehired by Wal-Mart within a few weeks or
months after leaving the company.”); Lucas v. Steel King Indus.,
Inc., 32 F.Supp.3d 994, 1003-1006 (W.D. Wis. 2014) (finding critical
fiduciary disclosure missing where employer did not inform employees
of

its

replacing

former

life

insurance

arrangement

with

new

insurance carrier, because the “right to convert in this case did
not arise from [the plaintiff’s] individual circumstances” or “his
illness” but from “an event that presumably would have triggered
conversion rights for all employees”).
The Court was not provided nor could it unearth cases expressly
treating ERISA fiduciary duty obligations with respect to long-term
disability policy conversion.

Yet many decisions treat employer-

sponsored group life insurance and long-term disability benefits as
“employee

welfare

meaning of ERISA.

benefit

plans”

largely

equivalent

within

the

See, e.g., Demars v. CIGNA Corp., 173 F.3d 443,

444-445 (1st Cir. 1999) (discussing ERISA preemption where former
employee converted employee welfare benefit plan into private longterm disability insurance policy after termination of employment);
Howard v. Gleason Corp., 901 F.2d 1154, 1157 (2d Cir. 1990) (“Mr.
- 20 -

Howard obtained these rights pursuant to the Alliance Group Life and
Long Term Disability Insurance Plan, an employee welfare benefit
plan within the meaning of [29 U.S.C.] § 1002(1).”).

As such, the

more robust case law on ERISA fiduciary duties in the context of
group life insurance conversion should apply with equal force here.
Courts
find

adjudicating
no

fiduciary

apposite

claims

duty

provide

conversion rights.
Fed.Appx.

559,

to

in

that

context

specific

consistently

information

about

See, e.g., Walker v. Fed. Express Corp., 492

561-62,

565-66

(6th

Cir.

2012)

(finding,

where

termination “triggered [the decedent’s] right to convert his FedEx
group

life

policy,”

insurance

that

no

coverage

language

to

in

an

ERISA

individual
required

Fed

life
Ex

insurance
to

notify

decedent or his family of conversion rights); Prouty v. Hartford
Life & Acc. Ins. Co., 997 F.Supp.2d 85, 86-87, 90-91 (D. Mass. 2014)
(stating

that

participants

there

with

is

no

ERISA

post-termination

obligation

notice

of

to

provide

insurance

plan

conversion

rights); see also, Maxa v. Alden Life Ins. Co., 972 F.2d 980, 986
(8th

Cir.

regulations

1992)
under

(“[T]his
it

to

Court
require

does
that

not

construe

the

appellee

ERISA
had

or
a

the
duty

individually to warn, upon their sixty-fifth birthdays, each and all
of the members of the plans which it insured that their benefits
would be reduced according to the plan’s coordination of benefits
provision unless they enrolled in Medicare.”).
- 21 -

Cases

holding

otherwise

typically

“involve

ERISA

fiduciaries

who either failed to disclose material information which they knew
the beneficiary did not have or affirmatively misinformed the plan
participant or beneficiary concerning plan benefits (and did not
subsequently provide correct information).”

Neuma, Inc. v. E.I.

DuPont de Nemours and Co., 133 F.Supp.2d 1082, 1090 (N.D. Ill. 2001)
(collecting cases); see, e.g., Kuntz v. Reese, 760 F.2d 926, 929,
935

(9th

Cir.

1985)

(characterizing

as

sufficient

for

breach

of

ERISA fiduciary duty allegations that defendants “misrepresented to
each Kuntz plaintiff, both at the time he interviewed for his job
and

afterward,

Kuntz

that

plaintiff

the

Companies

in

the

pension

would
plan”

immediately
and

that

enroll

the

plan

each
was

“‘standard’ and ‘good’” when in fact it “discriminated in favor of
the highest-paid workers and failed to provide any coverage to other
workers”), vacated on other grounds, 785 F.2d 1410 (9th Cir. 1986);
Noel v. Laclede Gas Co., 612 F.Supp.2d 1061, 1066-67 (E.D. Mo. 2009)
(finding

plausible

allegations

that

“Laclede

promised

or

misrepresented to [decedent] that he would have a life insurance
conversion right following termination [when he did not have such
right], and subsequently provided him misleading information about
such right”).

In this case, the impugned ITW documentation stating

that eligibility for benefits ends upon termination is (at least) as
consistent with the need for Tuhey to convert to an individual plan
- 22 -

as

it

is

permeate

with
such

the
cases.

kind

of

Twombly

affirmative
and

Iqbal

misrepresentations
thus

render

that

implausible

Tuhey’s allegation that ITW had a fiduciary duty to provide him with
the conversion notices he alleges were lacking or otherwise blurred
by the “eligibility” language in his termination documentation.
In the alternative, the Court finds wanting allegations that
plausibly suggest ITW’s intent to disadvantage Tuhey – as opposed to
its mere negligent failure to apprise him clearly of the contours of
his conversion rights. Mere negligence does not rise to the level of
breach of fiduciary duty; instead, an employer “must have set out to
disadvantage or deceive its employees.”

Vallone v. CAN Fin. Corp.,

375 F.3d 623, 642 (7th Cir. 2004) (“[W]hile there is a duty to
provide accurate information under ERISA, negligence in fulfilling
that

duty

is

not

actionable.”)

(citation

omitted).

The

Seventh

Circuit “does not recognize merely negligent misrepresentations as a
violation of ERISA.”

Lingis v. Motorola, Inc., 649 F.Supp.2d 861,

874 (N.D. Ill. 2009).

But that is all Tuhey’s allegations limn, as

he

has

not

asserted

anything

other

than

a

defective

disclosure.

See, e.g., Baker v. Knigley, 387 F.3d 649, 661-62 (7th Cir. 2004)
(noting

that

“vague

allegations . . . in

the

absence

of

specific

allegations of intent to deceive, are not sufficient to state a
claim for breach of fiduciary duty under ERISA”).

Therefore, even

if Tuhey plausibly stated the existence of ITW’s fiduciary duty to
- 23 -

inform him of his conversion right upon termination, his allegation
of breach flunks the Twombly/Iqbal standard because it is just as
consistent with negligence as with ERISA liability.

See, e.g., In

re General Growth Props., Inc., No. 08 C 6680, 2010 WL 1840245, at
*8, 11 (N.D. Ill. May 6, 2010) (granting motion to dismiss breach of
ERISA fiduciary duty claim where no allegations supported inference
that employer “set out to disadvantage or deceive its employees”).
A final malaise infects Tuhey’s ERISA fiduciary duty claim –
failure to exhaust. District courts may properly require exhaustion
of

administrative

remedies

prior

to

filing

of

a

claim

alleged violation of an ERISA statutory provision.
A.T.

&

Congress
primary

T.

Comms.,

intended

Inc.,
plan

responsibility

938

F.2d

823,

fiduciaries,
for

claims

825-26

not

federal

processing.

involving

See, Powell v.

(7th

Cir.

courts,
Kross

v.

Elec. Co., Inc., 701 F.2d 1238, 1244 (7th Cir. 1983).

1991).

to

have

Western
Although

exhaustion is an affirmative defense, a plaintiff can plead himself
out of court where, for example, he “admits that he did not exhaust
his

administrative

remedies

and

pursue

appeals of the partial denial of his claim.”

further

Zhou v. Guardian Life

Ins. Co. of Am., 295 F.3d 677, 680 (7th Cir. 2002).
case here:

administrative

Such is the

Tuhey admits in his brief opposing ITW’s Motion that

“for th[e] reason” that “[t]he Plan did nothing wrong,” “there were
no administrative remedies for Plaintiff to exhaust.” (Pl.’s Br. at
- 24 -

10.)

That Tuhey was allegedly unaware of his right to convert until

it was too late did not prevent him from filing for administrative
review on the same basis that underlies Count VII – namely, that
excusable

ignorance

entitled

conversion deadline.
resemble

those,

him

to

an

exception

to

the

normal

Tuhey’s cursory protestations to the contrary

rejected

in

Powell,

that

“exhaustion

of

administrative procedures would have been futile” because “[o]nce
[the

plaintiff]

was

fired . . . he

could

not

file

a

request

for

benefits because the Benefit Committee had no authority to reinstate
Powell or award benefits.”

Powell, 938 F.2d at 826.

On its own -

and absent allegations that, upon learning of his conversion rights,
he took some step directed to the policy’s administrators – Tuhey’s
sense of hopelessness is insufficient to avoid application of the
exhaustion

doctrine.

Cf.,

Honeysett

v.

Allstate

Ins.

Co.,

570

F.Supp.2d 994, 1004-05 (N.D. Ill. 2008) (reserving exhaustion for
summary judgment because it was unclear whether plaintiff exhausted
administrative remedies where “the plaintiffs’ complaint includes an
allegation that plaintiff Kunz wrote a letter on February 4, 2005
inquiring about submitting his actual earnings after the deadline
for doing so had passed,” to which “[t]he Committee replied” but
“did not suggest that an appeal from its decision was possible”)
(internal citation omitted).

- 25 -

For all these reasons, the Court grants ITW’s Motion to Dismiss
Count VII.

The dismissal is with prejudice.
IV.

CONCLUSION

For the reasons stated herein, Defendant’s Motion to Dismiss
[ECF No. 8] is granted in part and denied in part. Counts IV and VI
are

dismissed

without

prejudice.

Count

VII

is

dismissed

prejudice.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: August 2, 2017

- 26 -

with