Tuhey v. Illnois Tool Works, Inc.
Filing
88
MEMORANDUM Opinion and Order. For the reasons stated herein, the Motion to Dismiss Count IV is granted with prejudice. The Motion with respect to Count VII is denied. The Motion to Dismiss Count VIII is granted again with prejudice. Status hearing set for 3/27/2019 at 9:00 a.m. Signed by the Honorable Harry D. Leinenweber on 3/18/2019:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN TUHEY,
Plaintiff,
v.
Case No.
ILLINOIS TOOL WORKS INC.;
ITW LONG TERM DISABILITY
PLAN; and AETNA LIFE
INSURANCE COMPANY,
17 C 3313
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
I.
BACKGROUND
This is the third time this case has been before the Court on
Motions
Illinois
to
Dismiss.
Tool
Works
Plaintiff’s
(“ITW”)
original
with
Complaint
age
and
charged
disability
discrimination, failure to accommodate and retaliation pursuant to
the American with Disabilities Act (“ADA”), violating the Family
and Medical Leave Act (“FMLA”), violating the Employee Retirement
and Income Security Act (“ERISA”), and with common law defamation.
ITW moved to dismiss the FMLA, the ERISA, and the defamation
counts.
The Court granted the Motion and dismissed the FMLA and
the defamation counts without prejudice but dismissed the ERISA
count with prejudice. Plaintiff filed an Amended Complaint, adding
a
new
claim
of
violating
the
Consolidated
Omnibus
Budget
Reconciliation Act (“COBRA”), and in addition, moved to reconsider
the dismissal of the ERISA count.
The Court then dismissed the
FLMA interference claim with prejudice and the Plaintiff conceded
that the ERISA dismissal was correct and accordingly withdrew the
Motion to Reconsider and the new ERISA count.
Plaintiff has now filed a Second Amended Complaint, which
seeks to add an ADA Hostile Environment claim (Count IV), and two
more
ERISA
(Count VII),
claims;
and
failure
breach
of
to
supply
fiduciary
dismissed ERISA count (Count VIII).
requested
duty,
a
information
rehash
of
the
ITW has moved to dismiss
Count IV for failure to exhaust administrative remedies, Count VII
due to improper request and no bad faith, and Count VIII, for among
other
reasons,
that
it
had
previously
been
dismissed
with
prejudice.
II.
A.
DISCUSSION
Count IV
ITW argues for dismissal of Count IV, claiming Plaintiff
failed to include hostile environment in his EEOC charge and
therefore failed to exhaust remedies.
Plaintiff responds arguing
that, although his charge did not include a specific hostile
environment
claim,
it
is
“like
or
reasonably
related
to
the
allegations of the charge and growing out of such allegations,”
citing Huri v. Office of the Chief Judge, 804 F.3d 826, 831 (7th
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Cir. 2015).
ITW, on the other hand shows that the vast majority
of the acts that are claimed to amount to hostile work environment,
and most of the individuals charged with creating the hostile work
environment, were not mentioned or named in the EEOC charge.
ITW
also argues that the charged hostile conduct does not meet the
objective test required by Title VII.
The Court agrees with ITW.
hostile
work
environment
claim
First, there may not even be a
under
the
ADA.
Huri
was
Title VII case which involved a charge prepared by a layman.
a
The
Seventh Circuit has repeatedly declined to decide the issue of
whether hostile work environment claims exist under the ADA.
Holyfield-Cooper v. Board of Ed., 604 F. App’x 504, 508 (7th Cir.
2015).
In addition, the alleged hostile acts appear to arise from
the fact that there was no meeting of the minds between Plaintiff
and his supervisors as to how Plaintiff should conduct his role as
an attorney.
Moreover, Plaintiff is an attorney and should be
accustomed to a combative atmosphere. He complained about “probing
and intrusive questions” about his health (he took a significant
amount of family leave and worked from home due to multiple
illnesses); he complained about the treatment he received from his
superior
Ms.
Greene,
and,
when
she
was
removed
and
he
was
reassigned to Deputy General Counsel, he complained about the
reassignment, calling it a demotion; and he complained about his
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performance reviews.
A basic dispute with one’s superiors should
not become a federal case.
However, Count IV is dismissed for
lack of jurisdiction for failure to allege hostile environment in
his EEOC charge. See Babrocky v. Jewel Food Co., 773 F.2d 857, 863
(7th Cir. 1985).
B.
Count VII
Section 1024(b)(4) of ERISA requires “a plan administrator
upon written notice of any participant or beneficiary, furnish a
copy of the latest updated summary plan description, or other
instrument under which the plan is established or operated.”
To
state a claim for penalties under this section, a plaintiff must
establish that the administrator was required to make available
the
information
requested,
the
participant
requested
the
information, and the administrator failed or refused to provide
the information requested.
Hakim v. Accenture United States, 656
F.Supp.2d 801, 821 (N.D. Ill. 2009).
Here Plaintiff’s attorney
made the request for the plan documents from ITW’s attorney.
He
was furnished a summary plan, but the summary plan described a
previous Long-Term Disability plan which was no longer in effect.
ITW claims that Plaintiff’s demand was not in accord with the ERISA
statute
because
requires
a
written
request
to
administrator, which was ITW, and not its attorney.
the
plan
ITW has not
explained how requesting the information from the attorney for the
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plan administrator is different from requesting the information
from the plan administrator itself, since the attorney is an agent
of
the
plan
administrator.
Plaintiff
was
information, which is an ERISA violation.
given
the
wrong
ITW says that even if
it violated the statute it did not do so in bad faith.
However
bad faith is a subjective concept and not amenable to be determined
on a Motion to Dismiss where Plaintiff’s allegations are accepted
as true.
stage.
It is more properly reviewed at the summary judgment
The Motion to Dismiss Count VII is denied.
C.
Count VIII
The record shows that the Court dismissed the ERISA breach of
fiduciary claim with prejudice on August 2, 2017. It further shows
Plaintiff moved to reconsider the dismissal with prejudice and
filed a “new” breach of fiduciary duty count in his Amended
Complaint.
showed
no
Because the long-term disability policy in effect
violation
of
ERISA,
Plaintiff
conceded
the
issue,
withdrew his Motion to Reconsider and his new count alleging
violation of fiduciary duty.
Thus, the matter remained dismissed
with prejudice and is now law of the case.
In an attempt to get
around the previous procedural problem which led to the dismissal,
Plaintiff now claims in his brief in response to this Motion to
Dismiss that he was not discharged until after March 1, 2016,
rather than the February 15, 2016 discharge date alleged in his
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several complaints.
A plaintiff may not amend his complaint in a
brief on a motion to dismiss.
Since Plaintiff had not applied for
LTD benefits prior to his discharge, he was not eligible to obtain
LTD benefits.
The long-term disability policy clearly provides
that the right to LTD benefits ends at either the end of the
disability or the termination of employment, whichever occurs
first.
Plaintiff’s
termination
here
occurred
prior
to
any
application for LTD benefits and therefore he was not eligible.
Count VIII is dismissed with prejudice.
III.
CONCLUSION
For the reasons stated herein, the Motion to Dismiss Count IV
is granted with prejudice.
is denied.
The Motion with respect to Count VII
The Motion to Dismiss Count VIII is granted again with
prejudice.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: 3/18/2019
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