Greenwood v. Nationwide Mutual Insurance Company

Filing 154

MEMORANDUM Opinion and Order. The Court denies plaintiff's motion for summary judgment 126 . The Court grants in part and denies in part defendant's motion for summary judgment 111 . Defendant is granted summary judgment as to Counts I and III. This case is set for status hearing on July 24, 2019 at 9:30 a.m. Signed by the Honorable Jorge L. Alonso on 6/3/2019. Notice mailed by judge's staff(ntf, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEVIN GREENWOOD,
Plaintiff,
v.
NATIONWIDE MUTUAL
INSURANCE COMPANY,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 17-cv-3745
Hon. Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
After he was discharged from his position as a Trial Attorney with defendant Nationwide
Mutual Insurance Company (“Nationwide”), plaintiff Kevin Greenwood (“Greenwood”) filed in
the Circuit Court of Cook County a three-count complaint in which he alleged Nationwide failed
to provide a reasonable accommodation (Count I), as well as discriminated (Count II) and
retaliated (Count III) against him, all in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. 12111, et seq. Defendant removed the case to this Court, and the parties
have now filed cross-motions for summary judgment. For the reasons set forth below, the Court
denies plaintiff’s motion for summary judgment [126]. The Court grants in part and denies in
part defendant’s motion for summary judgment [111].
I.

BACKGROUND
The following facts are undisputed unless otherwise noted. 1

1

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like
considered in connection with a motion for summary judgment. The Court enforces Local Rule
56.1 strictly. Where one party supports a fact with admissible evidence and the other party fails
to controvert the fact with citation to admissible evidence, the Court deems the fact admitted.
See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218-19 (7th Cir. 2015); Ammons v.

Defendant Nationwide is a mutual insurance company. Defendant offers property and
casualty insurance products to individuals and businesses. Often, when one of defendant’s
insureds is sued as a result of an occurrence under one of defendant’s policies, defendant defends
the insured. Defendant employs attorneys to represent it in some litigation, rather than always
outsourcing litigation to outside law firms.
The attorneys that defendant employs to represent it in litigation are part of its Trial
Division. The Trial Division has a relationship with defendant’s internal claims employees
(which the Trial Division refers to as its internal clients), as well as with defendant’s insureds
(which the Trial Division refers to as its external clients). The Trial Division staffs each case
with one attorney, one paralegal and one secretary. The ultimate responsibility for ensuring
timely, quality work product rests with the assigned attorney. During the relevant time period,
defendant employed attorneys in the Trial Division in two offices—one in downtown Chicago
and one in Lombard.
Plaintiff Greenwood has been an attorney since he graduated from law school in 1988.
His work experience in the early part of his career included clerking for two judges and working
at a law firm in Chicago. In 1998, plaintiff took a position with defendant as Trial Attorney II.
Three years later, plaintiff was promoted to Trial Attorney III.

Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004). This does not, however,
absolve the party putting forth the fact of the duty to support the fact with admissible evidence.
See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). The Court does not consider
any facts that parties failed to include in their statements of fact, because to do so would rob the
other party of the opportunity to show that the fact is disputed. In reviewing the parties’
statements of facts, the Court considers any objections opposing parties make to the admissibility
of evidence; but, where a party fails to make an objection, the objection is deemed waived for
purposes of these motions for summary judgment.
2

Defendant expects attorneys with the title of Trial Attorney III to defend its insureds in
higher-risk litigation. The responsibilities of the position include: preparing for and representing
clients in trials and hearings before courts and agencies; working on complicated legal matters;
meeting billable-hour requirements; handling discovery and taking depositions; making and
defending motions; developing and maintaining relationships with clients; and following the
Trial Division’s Best Practices Guidelines to meet the Trial Division’s Metrics.
Because of a billable hour requirement, the job description for Trial Attorney III lists
“extended hours” as a condition of the job. Defendant expects its Trial Attorneys to bill 150
hours per month and 1800 hours per year. Defendant also keeps track of the number of open
files on which each Trial Attorney is working. In counting the files, defendant gives different
weights to different types of files, to account for the fact that some types of files require more
time to resolve. For example, defendant gives a typical bodily-injury file a weight of one, a
typical commercial-claim file a weight of 1.5 and a typical subrogation file a weight of less than
one.
As noted above, the job description for Trial Attorney III includes “representing clients in
trials and hearings.” The parties agree that, at the Circuit Court of Cook County, Judges
typically do not allow attorneys to appear by telephone. Plaintiff put forth testimony from a
former Trial Attorney at Nationwide who said the essential function of the Trial Attorney job
was to represent the client and that representing the client included attending depositions and
court hearings. Defendant expects the attorney assigned to a case to attend any motion hearings,
pre-trial conferences and trials in that case, and that is typically what happened. With respect to
routine status hearings or case-management conferences, however, the attorneys coordinate and
sometimes cover each other’s cases when necessary. For example, the attorneys have attempted

3

to avoid sending multiple attorneys to the same courthouse on the same morning. In addition,
when one attorney broke her ankle, her Managing Attorney attempted to find other attorneys to
cover her court appearances if someone else had to be at that courthouse anyway. In plaintiff’s
case, he was allowed to have an attorney from the Trial Division in Colorado attend his
deposition in Colorado. Plaintiff had ultimate responsibility for all activity on his assigned cases.
As noted above, one of the requirements of the Trial Attorney job was following the Trial
Division’s Best Practices Guidelines to meet the Trial Division’s Metrics. Each Trial Attorney
reports to a Managing Attorney, who, among other things, is responsible for evaluating his/her
Trial Attorneys’ compliance with best practices. One way the Managing Attorneys evaluate
compliance is by performing Key Performance Indicator (“KPI”) reviews. Specifically, each
quarter, each Managing Attorney is responsible for reviewing three random files of each Trial
Attorney she supervises to determine how well that Trial Attorney has met the Best Practices
Guidelines with respect to those files. Among the Best Practices were deadlines for drafting and
providing certain reports to internal claims clients, with the goal of keeping cases moving and
keeping the client informed. Managing Attorneys also perform quality assurance reviews
(“QARs”) every August, and, while the parties do not clarify the nature of the QARs, it is clear
(and undisputed) that defendant expects its Trial Attorneys to score at or above 90 on both QARs
and on KPI reviews. In 2007, plaintiff’s KPI score was 94.21.
After plaintiff had worked for defendant for about a decade, he was diagnosed with
vascular disease. The disease caused circulation problems and caused plaintiff’s blood to clot.
In 2008, doctors amputated plaintiff’s right leg below the knee, and, in 2012, doctors amputated
the left leg at the same spot. Each time, plaintiff took a short-term disability leave and then
returned to his job.

4

By 2010, plaintiff reported to Managing Attorney Colleen Shiel (“Shiel”). In March
2010, Sheil issued plaintiff a Performance Coaching for three reasons, including that plaintiff’s
billable hours were too low, that he had failed to arrange face-to-face meetings with clients on a
consistent basis and that he had a low weighted-file count. About six months later, Shiel placed
plaintiff on a Performance Improvement Plan. As part of that plan, Shiel directed plaintiff to
send litigation plans and substantive reports to claims clients in a timely manner, to conduct
client meetings in a timely manner, to use technology to improve efficiency and to work on each
file at least once every 30-45 days. Plaintiff successfully completed the Performance
Improvement Plan. Ultimately, for the year 2010, Shiel rated plaintiff “1-Achieves.”
For 2011, plaintiff was rated “3-Good.” Plaintiff’s manager wrote in his review, “We
looked to Kevin to handle a higher volume of cases this year and he answered the call.” His KPI
score for 2011 was 86.00.
Shiel left Nationwide in September 2012, and, in October 2012, Nationwide hired Todd
Schneider as a Managing Attorney. He took over as plaintiff’s Managing Attorney and was
aware that plaintiff was a double amputee. Schneider also managed two other Trial Attorneys,
Michelle Harland (“Harland”) and Ed Januszkiewicz (“Januszkiewicz”).
For the year 2012, Schneider rated plaintiff “Good.” In plaintiff’s evaluation, Schneider
noted plaintiff’s low KPI score of 82.62 and that part of the reason might have been that other
attorneys were covering his files while he was on leave (for his second amputation). Schneider
also noted that plaintiff worked well with everyone in the office and that his clients were happy
with his work.
In July 2013, Schneider provided plaintiff with a report on his metrics. Schneider told
plaintiff he had taken a deeper look at some of plaintiff’s missed metrics and concluded that they

5

were not as bad as they appeared. Schneider said, “Great job—keep up the good work.”
Overall, for the year 2013, Schneider rated plaintiff “Good.” In the annual review, Schneider
wrote that plaintiff “appears to demonstrate competencies” in the areas of decision making and
professional knowledge. Plaintiff’s claims surveys (which the parties do not explain but seem to
be surveys sent to claims representatives to evaluate the work of the Trial Attorneys assigned to
their claims) were higher than anyone in the office but still below what defendant expected its
Trial Attorneys to achieve. His KPI score was 89.84. That score, however, included work done
by other attorneys, who had covered plaintiff’s cases while he was on short-term disability leave
in 2012. Schneider told plaintiff that, in 2014, plaintiff needed to focus on his metric
compliance, his responsiveness to claims clients and his productivity.
On or about March 16, 2014, Schneider reminded plaintiff that the end of the third
quarter was approaching. Schneider informed plaintiff that he needed to bill 7.04 hours each of
the remaining workdays to meet the billable hour requirement. Schneider added, “Keep up the
good work!!” That quarter, Schneider met his billable hour requirement, but attorneys Harland
and Januszkiewicz did not.
Something happened in May 2014 that seems to have upset the apple cart. Nationwide
employee Timothy McKercher (“McKercher”), who was the head of the Commercial Practice
Group (and who was a liaison between commercial claims and the Trial Division), heard from
Nationwide’s Commercial Claims Department that it was dissatisfied with the work of three
attorneys in Chicago. The internal clients were concerned that commercial claims were “over
the head” of both plaintiff and another attorney, Harland. 2

2

Plaintiff objected to this evidence on the basis of hearsay, but, while it cannot be considered for
the truth of the matter asserted, it can be considered for other purposes, namely to show the
6

On June 9, 2014, Schneider sent an email to plaintiff and his team (i.e., his secretary and
his paralegal). In it, Schneider set forth an action plan for plaintiff and the team but did not use
the words “informal coaching” or “formal coaching.” Among other things, plaintiff was required
to send his substantive reports to the paralegal and Schneider for review before sending the
reports to internal clients. Schneider wanted to receive any reports a day before they were due to
internal clients so that he could review them for errors and content before they were sent on.
Schneider’s goal was to improve the timeliness and content of the reports. Schneider had noticed
that some of plaintiff’s reports lacked legal analysis and recommendations. Defendant has put
forth disputed evidence that plaintiff’s prior reports had included typographical errors and
incomplete sentences.
Later that month, on June 28, 2014, Schneider performed a KPI review of one of
plaintiff’s files. Plaintiff’s score was 55, far below the requisite 90. At about the same time,
Schneider sent plaintiff a metric status report, in which Schneider informed plaintiff that he had
“late metrics” in just 4.4 percent of the files assigned to him in the last 360 days. Schneider said,
“Nice work!” In July 2014, Schneider performed a KPI review of another one of plaintiff’s files.
Schneider found punctuation errors and that plaintiff had failed to answer written discovery.
Schneider was also receiving feedback from internal clients. By the end of July 2014,
Schneider learned that Nationwide’s commercial unit had “no appetite” for having plaintiff or
Harland handle their cases. In addition, Schneider learned that internal client Bruce Dilg had
“lost confidence” in plaintiff. 3 Based on this information from the internal clients, Schneider
removed plaintiff from responsibility for commercial cases. Harland was not removed from

effect it had on the hearer. See Simpson v. Beaver Dam Comm. Hospitals, Inc. 780 F.3d 784,
796 (7th Cir. 2015).
3
Footnote 2 applies to this paragraph as well.
7

commercial cases. Nationwide’s Commercial Claims department allowed Harland to continue
working on those cases, because her case handling was better than plaintiff’s. Harland’s QAR
results were higher than plaintiff’s in 2014. Through June 2014, Harland’s QAR score was 95.9,
and her KPI score was 95.25. In addition, Harland continued to receive referrals for commercial
files from claims representatives in Scottsdale and Harleysville. Plaintiff, on the other hand, was
removed from commercial files effective August 11, 2014. Schneider told plaintiff that one
reason he was taken off cases from Harleysville is that the internal client preferred her former
attorney, and plaintiff would have to take the fall for that.
During that month of August 2014, Schneider twice had to remind plaintiff to provide his
reports to Schneider for review before sending them to internal clients.
On September 23, 2014, Schneider issued plaintiff a Written Notice about his
performance. In it, Schneider notified plaintiff that he believed plaintiff produced substandard
work, failed to move his files aggressively and failed to meet metric standards of best practices.
Schneider also noted that plaintiff had been “deselected” (Nationwide’s euphemism for being
disallowed to work on cases) by internal commercial clients. In the Written Notice, Schneider
included twelve performance expectations with respect to which Schneider expected “immediate
and ongoing improvement.” Among them, Schneider expected plaintiff: (1) to provide timely
reports to clients after providing them to Schneider for review at least one day before the
deadline; (2) to be proactive in positioning cases for summary judgment; (3) to respond to all
emails and phone calls within 24 hours; and (4) to achieve compliance with all metrics.
Over the next several months, Schneider gave plaintiff feedback on his performance. On
November 7, 2014, Schneider met with plaintiff and discussed Schneider’s perception that
plaintiff was not complying with the Written Notice. Schneider also reminded plaintiff he

8

needed to send reports to Schneider for review before sending them to clients. On January 6,
2015, Schneider met with plaintiff and discussed Schneider’s perception that plaintiff was not
complying with the Written Notice. Schneider reminded plaintiff that he needed to meet clients
in person within 60 days of a case referral.
Other employees
Plaintiff was not the only attorney whose performance Schneider was attempting to
improve in 2014. During that year, Schneider was also attempting to improve the performance
of Januszkiewicz, a Nationwide Trial Attorney assigned to workers’ compensation claims.
Schneider had placed Januszkiewicz on an informal coaching plan in 2013, before placing him
on a formal one in May 2014. The reasons for the May 2014 plan were that Januszkiewicz had
failing KPI and QAR scores, had low scores on claims and client surveys and had billed too few
hours. Januszkiewicz ultimately improved his QAR metric scores to the highest in the office for
2015. Januszkiewicz was never removed from working on workers’ compensation claims due to
client complaints.
Around the same time, Schneider was also trying to improve Harland’s performance. In
2014, she had high metric scores (KPI scores above 95) and met her billable hour requirements.
Nonetheless, some of Harland’s reports were late, and she was “deselected” from some types of
claims. During 2015, Harland maintained her high KPI scores (95.9) and billable hours. In
2015, she made efforts to improve her legal acumen and judgment and maintained a positive
attitude
Plaintiff’s final written warning and requests for accommodation
In his evaluation for the year 2014, plaintiff received an overall rating of
“unsatisfactory.” Plaintiff’s evaluation mentions unprofessional letters and reports sent to

9

internal clients with incomplete sentences and improper grammar. The evaluation also mentions
that plaintiff was “deselected” by two commercial insurers, which limited his practice to personal
lines cases. On the positive side, plaintiff had met his billable hour requirement by billing
1800.3 hours, and his client scores rated him as fair.
On January 21, 2015, Schneider told plaintiff that his performance was still not meeting
Nationwide’s expectations. Schneider told plaintiff he was being placed on a 45-day final
written notice and that his employment would be terminated if he did not improve his
performance by the end of the 45 days. Before Schneider put plaintiff on a final written notice,
plaintiff had never suggested to Schneider or to Thomas Coffey (“Coffey”), the regional
supervising attorney, that his physical condition was affecting his performance. Nor did
Schneider or Coffey think of Schneider’s condition as a double amputee with prosthetic legs as
an impediment to Schneider’s performance as a Trial Attorney.
The following Monday, January 26, 2015, Schneider contacted Nationwide’s ADA group
to request job accommodations. Plaintiff requested an accommodation because he was tired.
Plaintiff had no cognitive challenges that affected his job performance, and he was able to drive;
but phantom limb pain was keeping him from sleeping well. Schneider requested three
accommodations: (1) that he be allowed to work in the Lombard office (which was closer to his
home); (2) that he be allowed to work from home occasionally; and (3) that he be given a week
to get caught up. Plaintiff did not ask for assistance typing reports, and he testified that the
reason he did not ask for that was that Nationwide expected attorneys to use voice recognition
software to assist in writing reports.

10

The day after Schneider requested accommodations, a nurse specialist asked Schneider
for the job description for plaintiff’s job. Schneider was not, however, asked what
accommodations might work for plaintiff.
Also on January 27, 2015, a nurse specialist advised plaintiff that Lynn Sturm, a nurse,
would manage his request for accommodations. Nationwide also sent plaintiff forms to
complete. On January 31, 2015, plaintiff provided defendant a statement about his condition.
Plaintiff described his prosthetics as being like “walking on stilts,” such that he had to be
especially careful in winter. Plaintiff stated that it took him longer to get to court, so he has to
leave early or take a taxi. Plaintiff also stated that it takes him longer to walk between
courtrooms. Plaintiff stated that trips to court leave him physically and mentally exhausted and
leave him with less time to do his office work.
In the meantime, Nationwide had also given plaintiff forms to be completed by his
physician. The forms asked the physician to provide information about plaintiff’s medical
condition, about the ways in which plaintiff’s condition affects his major life activities and about
accommodations that would allow plaintiff to perform his job. On January 30, 2015, plaintiff’s
doctor, Dr. Pragathi Challa (“Dr. Challa”) responded. Dr. Challa wrote that plaintiff needed
“accomodati[o]n at work – to do activities” and took “extra/or additional time to do daily
activities.”
Sturm, the nurse assigned to find accommodations for plaintiff, sought additional
information from Dr. Challa. Sturm specifically asked whether two of the accommodations
plaintiff requested—working from an office closer to home and working from home during
inclement weather—would be appropriate accommodations for plaintiff. Dr. Challa declined to
say whether those accommodations would enable plaintiff to perform his job duties. Dr. Challa

11

noted that those accommodations would help everyone, so she could not sign a form that said
they would help plaintiff. Plaintiff told Sturm that Dr. Challa told him it was just common sense.
Plaintiff told Sturm he would go with what he had already provided.
In March 2015, Nationwide granted plaintiff two of the three accommodations he
requested. First, Nationwide provided work space at the Lombard office. Second, Nationwide
permitted plaintiff to work from home as needed, although it required him to attend all in-person
court hearings and depositions. Although Nationwide did not provide the third requested
accommodation (a week to catch up), it extended his final written notice deadline to April 25,
2015. Sturm’s last involvement with plaintiff was when she sent a letter in March outlining the
accommodations. Sturm did not follow-up with plaintiff to find out if the accommodations were
working or to tell him he could ask for more.
In the meantime, since late January when the final-written-notice period began, Schneider
had been providing plaintiff with regular feedback (almost weekly) on his performance. For
example, on January 13, 2015, Schneider reviewed a litigation plan report written by plaintiff,
found punctuation and spelling errors and rewrote the fact section to make it more clear. On
January 30, 2015, Schneider told plaintiff he was short seventeen billable hours for the month,
that he had missed a status hearing and that he had missed an internal deadline. On February 6,
2015, Schneider told plaintiff that his most recent KPI score was below passing and called
plaintiff out for back-billing to January work performed in February. On February 20, 2015,
Schneider noted that plaintiff had been barred from taking a plaintiff’s deposition as a discovery
sanction for not answering written discovery. Schneider acknowledged that the “answering of
discovery is a paralegal task” but said it still falls on the shoulders of the assigned attorney.

12

In March, plaintiff transitioned to the Lombard office, which, according to plaintiff, was
a smooth transition. From March 11 to May 8, 2015, plaintiff had sixteen downtown court
appearances on his schedule. On or about May 1, 2015, Schneider informed plaintiff he had
failed to meet his billable hour requirement each month of the year. Plaintiff’s KPI score for
2015 was 84.33.
Defendant terminated plaintiff’s employment on May 13, 2015. Before his employment
was terminated, plaintiff did not complain that his performance warnings were unfair or
discriminatory.
II.

STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). When considering a motion for summary judgment, the Court must construe the evidence
and make all reasonable inferences in favor of the non-moving party. Hutchison v. Fitzgerald
Equip. Co., Inc., 910 F.3d 1016, 1021 (7th Cir. 2018). Summary judgment is appropriate when
the non-moving party “fails to make a showing sufficient to establish the existence of an element
essential to the party’s case and on which that party will bear the burden of proof at trial.”
Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A genuine issue
of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a
jury to return a verdict for that party.” Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d
686, 692 (7th Cir. 2005).

13

III.

DISCUSSION
A.

Failure to accommodate

In Count I, plaintiff alleges that defendant violated the Americans with Disabilities Act
by failing to provide a reasonable accommodation. The ADA makes it unlawful to “discriminate
against a qualified individual on the basis of disability in regard to . . . the . . . discharge of
employees . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a). Included in the definition of discriminate is “not making reasonable accommodation
to the known physical or mental limitations of an otherwise qualified individual with a
disability.” 42 U.S.C. § 12112(b)(5)(A). The ADA defines “qualified individual” as meaning
“an individual who, with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or desires.” 42 U.S.C. §
12111(8). That section goes on to say, “[f]or purposes of this subchapter, consideration shall be
given to the employer’s judgment as to what functions of a job are essential, and if an employer
has prepared a written description before advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential functions of the job.” 42 U.S.C. §
12111(8).
Thus, in order to establish a claim for failure to accommodate, the plaintiff must show:
(1) he “is a qualified individual with a disability;” (2) “the employer was aware of the disability;”
and (3) “the employer failed to reasonably accommodate the disability.” Equal Employment
Opportunity Comm’n. v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005); see also
Taylor-Novotny v. Health Alliance Medical Plans, Inc., 772 F.3d 478, 493 (7th Cir. 2014). The
Seventh Circuit has explained:
Identifying reasonable accommodations for a disabled employee requires both
employer and employee to engage in a flexible, interactive process. Both parties
14

are responsible for that process. If a reasonable accommodation was available but
the employer prevented its identification by failing to engage in the interactive
process, that failure is actionable. On the other hand, if the employee ‘does not
provide sufficient information to the employer to determine the necessary
accommodations, the employer cannot be held liable for failing to accommodate
the disabled employee.’
Brown v. Milwaukee Bd. of School Directors, 855 F.3d 818, 821 (7th Cir. 2017) (internal
citations omitted). The parties seem to agree that plaintiff has a disability within the meaning of
the statute. The parties disagree, however, on whether defendant provided a reasonable
accommodation.
It is clear to this Court, however, that plaintiff has not put forth sufficient evidence from
which a reasonable jury could conclude that defendant failed to provide a reasonable
accommodation. “An employer is not obligated to provide an employee the accommodation he
requests or prefers, the employer need only provide some reasonable accommodation.” Gratzl v.
Office of Chief Judges, 601 F.3d 674, 681-82 (7th Cir 2010) (quoting Mobley v. Allstate Ins. Co.,
531 F.3d 539, 546 (7th Cir. 2008); Gile v. United Airlines, 95 F.3d 492, 499 (7th Cir. 1996)).
Defendant provided two of the three accommodations plaintiff requested. Specifically,
defendant allowed plaintiff to work in the Lombard office and to work at home, occasionally.
These accommodations are reasonable, because they address the difficulties plaintiff had with his
job due to his disability. Plaintiff had no cognitive problems with his job, but it took him longer
to get to court. Also, his phantom limb pain left him tired. Allowing him to work at an office
closer to home (and sometimes at home) addressed these issues by making his commute shorter,
thus allowing more time for completing his work and for rest. Defendant did not provide the
third requested accommodation, one week to catch up. Plaintiff has not shown, however, that
that accommodation would have been effective. It was a temporary band aid for a permanent
problem.
15

Plaintiff seems to be arguing that the interactive process broke down. It is true that
plaintiff’s physician declined to agree that the accommodations plaintiff requested would help
plaintiff. Nonetheless, as noted above, defendant provided a reasonable accommodation, which
is what it was required to do. The interactive process is not an end in itself. See Bunn v. Khoury
Enterprises, Inc., 753 F.3d 676, 683 (7th Cir. 2014).
Plaintiff also seems to be arguing that he should have been given assistance with typing.
The Court disagrees. First, if plaintiff was slow at typing, he has put forth no evidence
suggesting his slow typing was a result of his leg amputations. See Taylor-Novotny, 772 F.3d at
493 (“[Plaintiff] never identified any limitation related to her disability that this accommodation
would alleviate.”). Second, plaintiff never asked for that kind of help. In fact, he testified that
the reason he never asked for help typing was that Nationwide provided voice-recognition
software for that purpose.
Finally, plaintiff seems to be arguing that defendant should have accommodated him by
allowing him not to attend court hearings. This argument is untenable primarily because
representing clients in court was an essential function of plaintiff’s position as a trial attorney.
An employer is not required to reassign essential functions to another person, because that is not
a reasonable accommodation, as a matter of law. Majors v. General Elec. Co., 714 F.3d 527,
535 (7th Cir. 2013) (“The accommodation [plaintiff] seeks—another person to perform the
essential functions of the job she wants—is, as a matter of law, not reasonable[.]”); Gratzl, 601
F.3d at 680 (“An employer need not create a new job or strip a current job of its principal duties
to accommodate a disabled employee.”).
As the Seventh Circuit explained in Brown, in concluding that working away from unruly
students was not a reasonable accommodation for an assistant principal, “sometimes a job

16

function requires a specific work environment. Lawn maintenance cannot be performed indoors;
a jockey must often work atop a horse; receptionists must be near office visitors.” Brown, 855
F.3d at 826; see also Webb v. Clyde L. Choate Mental Health and Dev’t Center., 230 F.3d 991,
999-1000 (7th Cir. 2000) (holding that a psychologist’s request not to counsel violent or
infectious patients was not a reasonable accommodation, because treating those individuals was
an essential function of the job). Likewise, the work of a trial attorney requires going to court.
Defendant assigned only one attorney to each case, and only an attorney can represent clients in
court. So, it is not surprising that defendant’s job description for Trial Attorney III included
“representing clients in trials and hearings.” This Court “presume[s] that an employer’s
understanding of the essential functions of the job is correct, unless the plaintiff offers sufficient
evidence to the contrary.” Gratzl, 601 F.3d at 679; 42 U.S.C. § 12111(8). The fact that
defendant allowed attorneys to cover each other’s routine status hearings in order to avoid
sending multiple attorneys to a single courthouse on a single morning does not create an issue of
fact as to whether it was an essential function of a Trial Attorney at Nationwide to represent
clients in court for substantive hearings. No reasonable jury could conclude that representing
clients in court was not an essential function of plaintiff’s job. Accordingly, neither eliminating
that function from plaintiff’s position nor reassigning it to another attorney was reasonable as a
matter of law.
For these reasons, the Court concludes that no reasonable jury could find that defendant
failed to provide a reasonable accommodation. Defendant is entitled to judgment as a matter of
law on Count I. The Court grants defendant’s motion for summary judgment as to Count I and
denies plaintiff’s motion for summary judgment as to Count I.

17

B.

Disparate treatment under the ADA

The ADA makes it unlawful to “discriminate against a qualified individual on the basis of
disability in regard to . . . the . . . discharge of employees . . . and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). Plaintiff claims that defendant discharged
him on the basis of his disability. The Seventh Circuit has concluded proof of a discharge “on
the basis of disability” means disability was the but-for cause. Scheidler v. Indiana, 914 F.3d
535, 541 (7th Cir. 2019). Thus, to prevail on this claim, plaintiff must show: (1) he is disabled;
(2) he “was qualified to perform the essential functions with or without a reasonable
accommodation;” and (3) disability was the but-for cause of his discharge. Scheidler, 914 F.3d
at 541. The parties seem to disagree that plaintiff is disabled within the meaning of the statute.
Defendant argues that plaintiff is not a qualified individual with a disability, because
representing defendant in court was an essential function of plaintiff’s job. The Court agrees, as
explained above, that representing defendant in court was an essential function of plaintiff’s job.
The Court cannot agree, however, that plaintiff was unable, as a matter of law, to perform that
function. It is undisputed that plaintiff, in fact, attended court hearings regularly—sixteen times,
in fact, between March 11, 2015 and May 8, 2015. Because of his disability, however, it took
plaintiff longer to get to court (and to walk between courtrooms), which ate up more of his work
day and left him tired. That is one reason why the accommodations plaintiff requested and
defendant provided—working from the Lombard office and, sometimes, from home—were
reasonable: less commuting time meant more time for performing work and for rest.
Finally, the Court concludes that plaintiff has put forth sufficient evidence from which a
reasonable jury could conclude that he was discharged on the basis of his disability. First, he has
put forth evidence that a similarly-situated employee, Januszkiewicz, who did not have a

18

disability, was treated more favorably. Although defendant argues Januszkiewicz was not
similarly-situated, the Court disagrees. He was an attorney who reported to the same supervisor
as plaintiff and was subject to the same standards (including billable hour requirements and
metrics requirements) as plaintiff. Plaintiff has also put forth evidence that Januszkiewicz was
given far more than a year to improve his performance and was not discharged, while plaintiff
was given only a few months before he requested accommodations and a few weeks after he
received his accommodations to improve his performance before he was discharged.
Defendant argues that “a history and record of poor job performance” is a legitimate,
non-discriminatory reason for discharge, but that history and record occurred before defendant
provided a reasonable accommodation. A reasonable jury could conclude that defendant, after it
provided a reasonable accommodation (which it knew plaintiff needed), discharged plaintiff on
the basis of his inability to keep up with his work (due to his disability) before defendant
provided a reasonable accommodation. Cf. Equal Employment Opportunity Comm’n v.
Dolgencorp, LLC, 899 F.3d 428, 435 (6th Cir. 2018) (“[A] company may not illegitimately deny
an employee a reasonable accommodation to a general policy and use that same policy as a
neutral basis for firing him. Imagine a school that lacked an elevator to accommodate a teacher
with mobility problems. It could not refuse to assign him to classrooms on the first floor, then
turn around and fire him for being late to class after he took too long to climb stairs between
periods.”). Before defendant provided a reasonable accommodation, Schneider regularly
criticized plaintiff for not achieving 90 on his KPIs, which were, among other things, evaluations
of whether plaintiff performed designated tasks by designated deadlines, i.e., whether he was
getting his work done quickly enough. Plaintiff put forth evidence that one of the reasons he was
behind was that, because of his disability, it took him longer to get to and from court. The record

19

contains no evidence that, once plaintiff’s disability was accommodated, he still could not keep
up with his work. The record contains no evidence of plaintiff’s KPI scores after he was
provided reasonable accommodations. (The record contains plaintiff’s KPI score for all of 2015,
but not for the time period after plaintiff received his accommodations in March.) On the other
hand, a reasonable jury could also conclude defendant discharged plaintiff for reasons other than
his disability.
Defendant has not shown it is entitled to judgment as a matter of law on Count II. It’s
motion for summary judgment as to Count II is denied. Plaintiff, too, has failed to show he is
entitled to judgment as a matter of law on Count II. His motion for summary judgment as to
Count II is denied.
C.

Retaliation

In Count III of his complaint, plaintiff alleges that defendant retaliated against him when
it terminated his employment after he requested a reasonable accommodation. Defendant moved
for summary judgment on this count, arguing that plaintiff has not put forth evidence of a causal
connection between his discharge and his request for accommodation and noting, among other
things, that plaintiff did not request an accommodation until after defendant gave plaintiff a final
written warning that his employment would be terminated in 45 days if his performance did not
improve.
Plaintiff has not responded to defendant’s motion for summary judgment on the
retaliation claim and has not mentioned the retaliation claim in his briefs, including his brief in
support of his own motion for summary judgment. Accordingly, plaintiff’s retaliation claim is
deemed abandoned. See Little v. Mitsubishi Motors North Amer., Inc., 261 Fed. Appx. 901, 903
(7th Cir. 2008) (failure “to present facts or develop any legal arguments” in response to motion

20

for summary judgment constituted abandonment of claims); see also Burton v. Board of Regents
of the Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017) (“[I]t is a well-settled rule that a party
opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual,
why summary judgment should not be entered. If the [nonmoving party] does not do so, and
loses the motion, it cannot raise such reasons on appeal.”) (citations omitted). In any case, the
Court agrees with defendant that plaintiff has not put forth evidence from which a reasonable
jury could find that he was discharged in retaliation for having requested accommodations.
Defendant’s motion for summary judgment as to Count III is granted.
IV.

CONCLUSION
For all of these reasons, the Court denies plaintiff’s motion for summary judgment [126].

The Court grants in part and denies in part defendant’s motion for summary judgment [111].
Defendant is granted summary judgment as to Counts I and III. This case is set for status
hearing on July 24, 2019 at 9:30 a.m.

SO ORDERED.

ENTERED: June 3, 2019

___________________________
JORGE L. ALONSO
United States District Judge

21