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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