Tricarico Jr v. Marion General Hospital Inc
OPINION AND ORDER: Defendant MGH's Motion for Leave to Substitute Exhibit 35 is GRANTED. MGH's Motion for Summary Judgment 29 is GRANTED in part and DENIED in part. Signed by Judge William C Lee on 9/8/21. (ksp)
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 1 of 29
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DONALD J. TRICARICO, JR.,
MARION GENERAL HOSPITAL, INC.,
Case No. 1:20-CV-92
OPINION AND ORDER
This matter is before the Court on the motion for summary judgment filed by Defendant
Marion General Hospital (“MGH”) (ECF No. 29). Plaintiff Donald Tricarico filed a response in
opposition (ECF No. 31) and Marion General filed a reply (ECF No. 36). Marion General also
filed a motion for leave to substitute exhibit (ECF No. 35), to which Plaintiff filed a response in
opposition (ECF No. 37) and Marion General filed a reply (ECF No. 38). For the reasons
explained below, the motion to substitute exhibit is GRANTED and the motion for summary
judgment is GRANTED in part and DENIED in part.
Donald Tricarico was employed by MGH as Chief Administrative Officer beginning on
March 7, 2016. Complaint, p. 1. He was terminated on January 14, 2019, and brought this
lawsuit alleging that his termination violated the Americans with Disabilities Act, 29 U.S.C. §
621 et seq., as amended, 42 U.S.C. § 12101 et seq., and the Uniformed Services Employment and
Reemployment Rights Act, 38 U.S.C. § 4301 et seq. Id., p. 2. Tricarico states that he “is a veteran
of the United States armed services, having served as a military officer in Southwest Asia during
the Gulf War” and that he “is disabled, suffering from degenerative disc disease in his lower
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 2 of 29
back, which relates to his military service.” Id., pp. 2-3. Tricarico states that he “had a military
disability rating of 40% at the time of his employment at MGH” and that “[h]is military
disability rating has since increased to 60%.” Id., p. 3. Tricarico states that “[i]n 2017, [he]
informed MGH that he was unable to sit for long periods of time due to injuries [he] sustained
related to his military service, including deployment to Southwest Asia.” Id. Tricarico explains
that “MGH purchased and installed a Varidesk (an adjustable desk which would allow
Mr. Tricarico to sit or stand) for the purpose of accommodating Mr. Tricarico’s health conditions
related to his military service, including left lower radiculopathy of the femoral nerve, lower
extremity radiculopathy of the femoral nerve, and thoracolumbar spine degenerative disc
disease.” Id. Tricarico contends that MGH violated his rights under the ADA because “MGH
would not have terminated Tricarico’s employment, but for his disability.” Id., p. 6. Tricarico
also alleges that his termination was in retaliation for having complained about “discriminatory
treatment on the basis of his disability.” Id.
As to his claims that MGH violated his rights under the USERRA, and retaliated against
him in violation of that Act, Tricarico alleges as follows:
18. Tricarico’s supervisor at MGH was Stephanie Hilton-Siebert
(“Hilton-Siebert”), who served as Chief Executive Officer.
19. Hilton-Siebert made repeated comments to Tricarico expressing disapproval
of his military background.
20. Hilton-Siebert told Tricarico that she didn’t like his “military style.”
21. Hilton-Siebert made statements threatening his continued employment such
as, “I brought you here and you’re still here because of me and only because of
me” and, “the only thing between you and the door is me.”
22. Hilton-Siebert criticized Tricarico for using the gym to stretch and exercise his
back to alleviate physical issues from his military service, about which she was
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 3 of 29
Complaint, pp. 3-4 (paragraph numbers in original). Tricarico also alleges that Hilton-Siebert
made it difficult for him to perform his duties by “exlud[ing] Tricarico from important meetings
at which information was discussed that directly impacted Tricarico’s ability to execute some of
his job duties” (id., p. 4, ¶ 23); that “[d]uring the last seven months of Tricarico’s employment,
Hilton-Siebert often avoided communicating with Tricarico, and routinely did not respond to his
requests to meet with him” (id., ¶ 25); that she “rarely responded to Tricarico’s updates, and
infrequently asked Tricarico any questions regarding the information he provided” (id., ¶ 28);
and that while “Tricarico requested that Hilton-Siebert convene weekly officer meetings and
monthly director meetings as a way to facilitate communication and share information[,] . . .
[d]uring the course of Tricarico’s three years at MGH, Hilton-Siebert convened six or fewer
officer meetings” (id., ¶¶ 29 and 30). Tricarico also contends that he “was the only
bonus-eligible employee at MGH who did not receive an end-of-year bonus in 2018[,]” (id., p. 5,
¶ 32), that “Hilton-Siebert was the sole decision-maker regarding employee bonuses in 2018[,]
(id., ¶ 34), and that “Hilton-Siebert provided no explanation to Tricarico for denying him a bonus
for 2018” (id., ¶ 35). Finally, Tricarico states as follows:
36. On January 7, 2019, Tricarico’s attorney sent Hilton-Siebert a letter raising
concerns that the discriminatory treatment and harassment Tricarico had
experienced, including the decision to deny Tricarico a bonus in 2018, was
motivated by his protected status as a disabled American veteran.
37. On January 14, 2019, Hilton-Siebert invited Tricarico to her office and fired
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 4 of 29
Id., pp. 3-5.1
MGH argues that it is entitled to summary judgment on Tricarico’s claims brought under
the ADA for the following reasons:
It is undisputed that Tricarico had no work restrictions while employed by Marion
General, that he never brought the Hospital any medical documentation
substantiating the existence of any disability, and that he never provided any
medical documentation to substantiate any form of required disability
accommodation. (Tricarico 225:13-23; Hilton-Siebert Aff. ¶¶19-25, 28, 29, 45,
46; Jones Aff. ¶¶8, 9, 10, 11). Hilton-Siebert testified she was not aware of
Tricarico having, or claiming to have, any type of disability. (Hilton-Siebert
52:5-7). Additionally, Hilton-Siebert never viewed any documentation of any
alleged disability, nor was she aware that Tricarico suffered from any physical
limitations. (Hilton-Siebert 52:8-14; Hilton-Siebert Aff. ¶¶21, 23-25, 28-29,
45-46). Hilton-Siebert never discussed any accommodations for a disability with
Tricarico and she was not aware that Tricarico ever claimed to have suffered or
experienced any injury related to his military service. (Hilton-Siebert 52:24-53:8;
Hilton-Siebert Aff. ¶¶22-23, 25). Ultimately, no Hospital decision-maker was
aware of any alleged disability claimed by Tricarico. (Hilton-Siebert Aff. ¶¶19-25,
28-29, 45-46; Jones Aff. ¶¶8-11).
Defendant’s Statement of Material Facts (ECF No. 30-1), pp. 4-5.
Tricarico bases his USERRA claim on his allegations that Hilton-Siebert expressed
animus about his military background and his “military style” approach to his job. MGH argues
that those claims are unfounded and that Tricarico was fired because he failed to perform his
duties to MGH’s reasonable expectations. Specifically, MGH contends that Tricarico was
Attorney David L. Swider, on behalf of Tricarico, sent a letter to Hilton-Siebert dated
January 7, 2019, which indicates that it was sent “VIA UPS Overnight Delivery,” and in which
Tricarico complained of discriminatory treatment on the basis of his status as a “disabled
American veteran.” Swider Letter to Hilton-Siebert (ECF No. 30-2, pp. 90-91). MGH concedes
that Hilton-Siebert received the letter on January 8 and that it constitutes protected activity for
purposes of Tricarico’s retaliation claims.
Karen Jones is Administrative Director of Human Resources for MGH. Jones Affidavit
(ECF No. 30-8), p. 1.
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 5 of 29
terminated because “Hilton-Siebert identified numerous performance problems with Tricarico
during his three years of employment, which ultimately culminated in the termination of his
employment with the Hospital. . . . The three overarching reasons that led Hilton-Siebert to fire
Tricarico included: 1) his failure to meet the expectations required of the CAO; 2) his inability to
work well with others; and 3) an approach to leading and working that were not consistent with
Hilton-Siebert’s expectation of the culture at Marion General.” Id., p. 13 (internal citations to
Hilton-Siebert deposition and affidavit omitted).
In sum, MGH argues that it did not violate Tricarico’s rights under the ADA because it
had no knowledge of his alleged disability, and that his status as a veteran played no role in the
decision to fire him–a decision MGH insists was made for the nondiscriminatory reason that
MGH was dissatisfied with Tricarico’s performance as CAO. Finally, MGH argues that
Tricarico’s retaliation claims also fail because he cannot establish a causal connection between
his alleged protected activity and the adverse employment actions he suffered.
SUMMARY JUDGMENT STANDARD
Federal Rule 56 states that a “court shall grant summary judgment 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). The Supreme Court has explained that “the burden on the
moving party may be discharged by ‘showing’–that is, pointing out to the district court–that there
is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). “‘If the moving party has properly supported his motion, the burden shifts
to the non-moving party to come forward with specific facts showing that there is a genuine issue
for trial.’” Simpson v. Gen. Dynamics Ordnance & Tactical Sys.-Simunition Operations, Inc.,
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 6 of 29
2019 WL 6912332, at *2 (N.D. Ind. Dec. 19, 2019) (quoting Spierer v. Rossman, 798 F.3d 502,
507 (7th Cir. 2015)). Within this context, the Court must construe all facts and reasonable
inferences from those facts in the light most favorable to the nonmoving party. Id. (citing Frakes
v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550 (7th Cir. 2017)). A court’s role in deciding a
motion for summary judgment “is not to sift through the evidence, pondering the nuances and
inconsistencies, and decide whom to believe. The court has one task and one task only: to decide,
based on the evidence of record, whether there is any material dispute of fact that requires a
trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Summary judgment is
not a substitute for a trial on the merits nor is it a vehicle for resolving factual disputes. Id.
Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if
genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion,
summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975
F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).
If it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish
his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S.
at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003).
“Summary judgment is a critical moment for a non-moving party. It must ‘respond to the
moving party’s properly-supported motion by identifying specific, admissible evidence showing
that there is a genuine dispute of material fact for trial.’” Johnson v. Advocate Health & Hosps.
Corp., 892 F.3d 887, 893-94 (7th Cir. 2018) (quoting Grant v. Trs. of Ind. Univ., 870 F.3d 562,
568 (7th Cir. 2017)). “Inferences supported only by speculation or conjecture will not suffice.”
Id. (citing Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 721-22 (7th Cir. 2018)). “Neither will the
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 7 of 29
mere scintilla of evidence.” Id. (citing Grant, 870 F.3d at 571).
The Seventh Circuit in recent years has refined the summary judgment standard of review
in employment discrimination cases, explaining as follows:
On top of the normal lattice of summary judgment demands, we must also apply
the constructs of employment discrimination law. For years we have tangled with
a “rat’s nest of surplus tests” in employment discrimination cases–struggling to
pigeon hole evidence into the direct or indirect method with various overlaying
requirements of “convincing mosaics” and circumstantial or direct evidence. Ortiz
v. Werner Enters., Inc., 834 F.3d 760, 764-66 (7th Cir. 2016). Our Circuit has
now clarified the singular question that matters in a discrimination case:
“[W]hether the evidence would permit a reasonable factfinder to conclude that the
plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the
discharge or other adverse employment action.” Ortiz, 834 F.3d at 765. “Evidence
must be considered as a whole, rather than asking whether any particular piece of
evidence proves the case by itself. . . . Relevant evidence must be considered and
irrelevant evidence disregarded.” Id.
Johnson, 892 F.3d at 893-94.
I. Motion for Leave to Substitute Exhibit.
Before addressing the motion for summary judgment the Court must address the motion
for leave to substitute exhibit filed by MGH (ECF No. 35). By way of this motion, MGH seeks to
amend or supplement its summary judgment pleadings–or more precisely, its exhibits in support
of its motion for summary judgment–by submitting an exhibit in place of one it says was
mistakenly filed. The exhibit at issue is a copy of a Separation Agreement emailed to HiltonSiebert by MGH’s outside counsel on January 5, 2019 (according to her testimony). The
Separation Agreement between MGH and Tricarico that summarizes the terms on which
Tricarico’s separation from the Hospital would be completed (had he accepted it). Tricarico
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 8 of 29
argues that MGH should not be permitted to submit this new exhibit3 because Hilton-Siebert’s
affidavit authenticating it as the version she received on January 5 contradicts her deposition
testimony, during which she was shown a later version of the same Agreement and testified that
that version was the one she received from outside counsel. The difference between the two
exhibits is that the one MGH seeks to submit now did not include a final termination date or the
amounts of money MGH was willing to pay Tricarico for wages and severance–those terms were
left blank. The version presented during Hilton-Siebert’s deposition, and which was filed with
MGH’s motion for summary judgment (by mistake, says MGH), included a termination date of
January 14, 2019, and also included the specific amounts MGH would pay pursuant to the
Agreement–in other words, there were no blanks. Tricarico argues that this constitutes a conflict
or contradiction between Hilton-Siebert’s deposition testimony and her affidavit and creates a
credibility issue about whether Tricarico’s termination date was decided before or after MGH
received his attorney’s letter.
MGH contends that Tricarico is trying to conjure a credibility issue where one does not
exist and that its motion is nothing more than an attempt to correct a simple filing mistake.
According to MGH:
What is really at issue in this Motion is straightforward. The Hospital’s counsel
made an unintentional filing mistake. The Motion is nothing more than a request
to substitute the proper and intended version of the separation agreement for the
incorrect version of the separation agreement that was initially filed. This mistake
amounts to nothing more than, effectively, an inadvertent scrivener’s error.
As MGH points out, and Tricarico does not dispute, the exhibit at issue is not “new” at
all since “Plaintiff already received, and had access to, both versions of the separation agreement.
The Hospital provided each version to Plaintiff during discovery. Plaintiff is not prejudiced by
the substitution of the separation agreement because Plaintiff already had access to both versions
of the agreement.” Defendant’s Reply in Support of Motion for Leave (ECF No. 38), p. 4.
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 9 of 29
Defendant’s Reply in Support of Motion to Substitute (ECF No. 38), p. 3. In the interest of
expediency, the Court will dispense with a more detailed discussion of Tricarico’s arguments in
opposition to the motion except to say that they are flimsy and unpersuasive. The Court also
notes that Tricarico does not object to the exhibit on evidentiary grounds; that is, he does not
argue that it is inadmissible for some reason under the Federal Rules of Evidence. But most
importantly, the admission of the Separation Agreement does nothing to change this Court’s
analysis or conclusions. MGH submits the exhibit in support of its argument that it made the
decision to terminate Tricarico, and prepared a Separation Agreement, before it received his
attorney’s letter on January 8, thereby foreclosing Tricarico’s retaliation claims. Tricarico’s
opposition to the motion, and his convoluted and unavailing arguments, are a strained attempt to
create a credibility issue to save his retaliation claims from summary judgment. However, for the
reasons set forth later in this order, the Court concludes that Tricarico’s retaliation claims survive
summary judgment in any event, and so his objection to the exhibit is essentially moot. There are
issues of material fact that must be resolved and credibility determinations that must be made
with regard to his retaliation claims, and those issues are not erased by granting MGH’s motion.
In other words, the Court agrees with Tricarico that fact issues and credibility determinations
preclude entry of summary judgment on his retaliation claims, but not for the reason he argues in
opposing MGH’s motion to substitute its exhibit. Accordingly, the motion is granted and MGH’s
exhibit, which appears at ECF No. 35-2, is admitted as part of the record on summary judgment.
II. ADA disparate treatment claim.
MGH argues in its opening brief that it is entitled to summary judgment on Tricarico’s
ADA disparate treatment claim because he cannot establish three of the requisite elements of an
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 10 of 29
ADA claim under the familiar McDonnell-Douglas burden shifting method of proof. MGH
correctly states that “[f]or an ADA claim to survive summary judgment under the McDonnellDouglas approach, a plaintiff must first establish a prima facie case of discrimination by
showing: (1) he is disabled within the meaning of the ADA; (2) he was meeting his employer’s
legitimate employment expectations; (3) he suffered an adverse employment action; and (4)
similarly situated employees received more favorable treatment.” Defendant’s Brief in Support
(ECF No. 30), p. 5 (citing Mobley v. Allstate Ins. Co., 531 F.3d 539, 548 (7th Cir. 2008)). MGH
insists that Tricarico fails to establish the first, second or fourth prong of his prima facie case
(conceding that he suffered an adverse employment action). Id. (“Although Tricarico was not
paid a bonus and was discharged from employment, he cannot establish any of the other elements
of the prima facie case.”).
However, in his response brief in opposition to summary judgment, Tricarico does not
employ the McDonnell Douglas burden-shifting method and opts instead to present his claims
and arguments under the alternative method of proof set forth in Ortiz v. Werner and its progeny.
Tricarico states that under this method, “[t]o make a prima facie case of discrimination under the
ADA, a Plaintiff must prove that ‘(1) she is disabled within the meaning of the ADA, (2) she is
qualified to perform the essential functions of her job either with or without reasonable
accommodation, and (3) she has suffered from an adverse employment decision because of her
disability.’” Plaintiff’s Response (ECF No. 31), p. 15 (quoting Spurling v. C&M Fine Pack, Inc.,
739 F.3d 1055, 1060 (7th Cir. 2014)). Tricarico correctly notes that “[t]he Seventh Circuit has
‘tried to move away from the many multi-factored tests in employment discrimination cases and
decide, when considering the evidence as a whole, ‘whether the evidence would permit a
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 11 of 29
reasonable factfinder to conclude that the  proscribed factor caused the discharge.’” Id., pp. 1516 (quoting Monroe v. Ind. DOT, 871 F.3d 495, 503-04 (7th Cir. 2017) (in turn quoting Ortiz v.
Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)). Under either method, though, Tricarico
must establish that he was “disabled” within the meaning of the ADA. As MGH argues, he fails
to do that and so his ADA claim fails at the outset.4
While Tricarico can choose to reject the McDonnell Douglas burden-shifting method in
favor of the more holistic approach of Ortiz, he incorrectly asserts in his brief that he can “rely on
‘circumstantial evidence that creates “convincing mosaic” from which a reasonable jury could
infer discriminatory motive.” Plaintiff’s Response, p. 20 (quoting McDaniel v. Loyola Univ.
Med. Ctr., 2019 WL 1281969, at *13 (N.D. Ill. March 20, 2019) (in turn quoting Arroyo v. Volvo
Group N. Am., LLC, 805 F. 3d 278, 284 (7th Cir. 2015))). This is incorrect, as MGH points out:
“In his response, Tricarico referenced the ‘convincing mosaic’ standard referenced by some
courts prior to Ortiz[.] If the ‘convincing mosaic’ standard was ever appropriate for analyzing
discrimination claims, it no longer is. Ortiz specifically ‘reiterate[d] that ‘convincing mosaic’ is
not a legal test.” Defendant’s Reply (ECF No. 36), pp. 1-2, n. 1 (citing Ortiz, 834 F.3d at 765);
see also, Green v. Wilkie, No. 18-CV-03488, 2021 WL 2515671, at *4 (N.D. Ill. June 18, 2021)
(“Green states that the Court must consider whether his evidence forms a ‘convincing mosaic’ of
discrimination, but the Seventh Circuit has rejected ‘convincing mosaic’ as a legal test.”). This is
not to say that Tricarico cannot present circumstantial evidence which, when examined as a
whole, gives rise to an inference of discrimination. After all, in most employment discrimination
cases circumstantial evidence is the only evidence a plaintiff has. But he cannot argue that his
evidence amounts to a “convincing mosaic” and therefore the Court should infer discriminatory
intent and deny summary judgment. As the Seventh Circuit explained in Ortiz:
We start with the “convincing mosaic.” This phrase originated in Troupe [v. May
Department Stores Co., 20 F.3d 734 (7th Cir. 1994)] and was designed as a
metaphor to illustrate why courts should not try to differentiate between direct and
indirect evidence. Troupe explained that all evidence is inferential and cannot be
sorted into boxes. All evidence should be considered together to understand the
pattern it reveals. But instead of persuading district judges and litigants to merge
“direct” and “indirect” methods into a unified approach, Troupe was understood
by many as adding a new “test” that had to be satisfied. How a “mosaic” could be
a “test” rather than a mental picture went unaddressed–as did the question how
such a legal test could be rooted in the statutes that govern
We tried to set things straight in Sylvester [v. SOS Children’s Villages Illinois,
Inc.], 453 F.3d [900,] 903-04 [(7th Cir. 2006)] reminding lawyers and judges that
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 12 of 29
Regardless of the framework in which Tricarico presents his evidence, MGH argues that
he fails to meet his initial burden of showing that he was “disabled within the meaning of the
ADA.” MGH argues that Tricarico was not disabled as that term is defined in the ADA, that
MGH had no knowledge of any alleged disability, and that Tricarico’s claim fails at the outset for
those reasons. According to MGH:
On March 5, 2016, at the onset of his employment with the Hospital, Tricarico
completed a Voluntary Self-Identification of Disability form, the contents of
which bely any claim that he is disabled within the meaning of the ADA.
(Tricarico 150:11-25, Ex. 12). The form requested that Tricarico disclose whether
he had a “disability,” as defined by the ADA. (Tricarico Ex. 12). Tricarico
checked the box on the form which declared, “NO, I DON’T HAVE A
DISABILITY.”(Tricarico 151:1-6, Ex. 12 (all caps in original)). Tricarico
additionally certified “N/A” in the section of the form requesting whether
Tricarico required a reasonable accommodation for any disability. (Tricarico
151:7-14, Ex. 12). Tricarico testified in his deposition that he did not mention the
need for any type of accommodation because it was “not relevant.” (Tricarico
151:15-25). Tricarico also admitted in his deposition that he had no impairments
or conditions that met the definition of “disability” under the ADA:
Q. It says, “You are considered to have a disability if you have a physical or
mental impairment or medical condition that substantially limits a major life
Troupe used “mosaic” as a metaphor that was designed to displace the unhelpful
direct and indirect methods rather than add to them. The reminder did not work, as
the district court’s opinion in this case shows. Despite follow-up reminders that
“convincing mosaic” is not a legal test of any kind, see Muhammad v. Caterpillar,
Inc., 767 F.3d 694, 699-700 (7th Cir. 2014); Fleishman v. Continental Casualty
Co., 698 F.3d 598, 603 (7th Cir. 2012); Davis v. Time Warner Cable of
Southeastern Wisconsin, L.P., 651 F.3d 664, 672 (7th Cir. 2011); it has continued
to be misused as one.
Ortiz, 834 F.3d at 764. See also, Durham v. FreshRealm, LLC, No. 19-CV-04902, 2021 WL
3089128, at *13 (S.D. Ind. July 22, 2021) (convincing mosaic approach is “defunct.”).
Accordingly, to the extent Tricarico is inviting the Court to analyze his claims or assess his
evidence to determine whether he constructs a “convincing mosaic” that precludes summary
judgment, the Court declines and will instead assess Tricarico’s evidence with a singular goal: to
determine “whether the evidence would permit a reasonable factfinder to conclude that the
plaintiff’s [disability] caused [his] discharge.”
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 13 of 29
activity or if you have a history or record of such impairment or medical
Do you believe any of your conditions met that definition?
A. It wasn’t a major life -- it didn’t limit a major life activity, so no, sir.
Q. None of them did? None of your alleged disabilities?
A. No, sir.
Defendant’s Brief in Support, pp. 5-6. MGH maintains that based on Tricarico’s own testimony,
he was not “disabled” within the meaning of the ADA and so his claim fails at the start.
Tricarico concedes that “[w]hen [he] applied for employment at MGH, he did not (yet)
need an accommodation” and that he “filled out a Voluntary Self-Identification of Disability
form, checking a box that said ‘No, I don’t have a disability.’” Plaintiff’s Response in Opposition
to Summary Judgment (ECF No. 31), p. 3. However, he insists that during the course of his
employment at MGH, his back pain and problems increased and that MGH knew about this
problem. Tricarico concludes his argument in support of his contention that he was disabled
within the meaning of the ADA with the curious statement that “Tricarico testified unequivocally
that he does, now, have a disability (under the ADA).” Id., p. 4 (italics in original).
Tricarico also contends that MGH was aware of his disability based on the following:
MGH contends that no Hospital decision-maker was aware of Tricarico’s
disability. Tricarico disputes this, and presents evidence creating an issue of fact
as to whether Hilton-Siebert was aware of Tricarico’s disability. Tricarico testified
that, in the spring or early summer of 2017, he specifically told Hilton-Siebert that
he goes to the gym to strengthen his core and stretch his back because he has
issues with his back that stem from his military service. (Ex. 1, Tricarico Dep.
107:4-21). He testified, “It causes me a lot of discomfort when I’m sedentary. And
[Hilton-Siebert] told me she understood that because she had lost the use of her
legs for a period of time.” Id. Hilton-Siebert testified that she knew Tricarico
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 14 of 29
would work out on a regular basis, but claims that she did not know this was to
alleviate pain related to his disability. (Ex. 2, Hilton-Siebert Dep. 54:13-17; Dkt.
30-5, Hilton-Siebert Aff. ¶¶ 27-28).
MGH does not dispute that Tricarico requested (and received) a VariDesk–an
adjustable standing desk. (Ex. 1, Tricarico 108:22-24; Dkt, 30-5, Hilton-Siebert
Aff. ¶26; Dkt. 30-8, Jones Aff. ¶12). However, MGH disputes that Hilton-Siebert
knew about this accommodation, creating another issue of fact. Tricarico testified
that he asked Hilton-Siebert for permission to buy a VariDesk:
Q. So that was the only time you ever had that conversation?
A. The only other time I mentioned my back, sir, was I did ask permission to buy
a VariDesk because, again, sitting for long periods of time can cause me a lot of
pain. It’s related to my military and service-connected disability I had, and she
told me she didn’t have an issue with me purchasing a VariDesk.
Q. When you say she, you talked to Stephanie about buying this desk?
A. Yes, sir. I talked to Stephanie.
Q. Did Stephanie have to approve you buying a desk?
A. I don’t know, sir, but I asked her. I mean, I will ask if I can.
(Ex. 1, Tricarico Dep. 108:5-13). Tricarico believes that Secretary Tina Purvis
likely would have been the one to fill out the requisition for the desk purchase.
(Ex. 1, Tricarico Dep. 115:11-21).
Hilton-Siebert claims that Tricarico never asked her about buying a standing desk.
(Dkt, 30-5, Hilton-Siebert Aff. ¶26).
Plaintiff’s Response, pp. 4-5. Tricarico also alleges that “Hilton-Siebert was not just aware of
Tricarico’s disability, but made derogatory comments about it. At least two days per week (if his
schedule permitted), Tricarico would leave around 4:30 p.m., after the conclusion of his work
day and outstanding tasks, to go to the gym and alleviate his back pain from sitting all day. (Ex.
1, Tricarico Dep. 106:18-107:3). Hilton-Siebert (and her secretary, Tina Purvis) often made
negative comments about Tricarico leaving work for the day to exercise his back–to the point
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 15 of 29
where, in the fall of 2018, Tricarico decreased the amount of time that he was going to the gym
after work.” Id., p. 6. Tricarico concludes his argument in support of his ADA claim by asserting
One of the reasons communicated to Tricarico for his termination was, “You
don’t work very hard. There is an unwillingness to engage and devote the time
needed for success of the Hospital, especially when the rest of the team is so
clearly devoted and working hard. Your work schedule as our Chief
Administrative Officer regularly begins at 7:30 a.m. and ends at 4:30 p.m.”
(Dep. Ex. 47). The fact that Hilton-Siebert made negative comments about
Tricarico going to the gym as needed for his disability, and that she specifically
mentioned this as a reason for his termination, creates an issue of fact as to
whether Tricarico’s disability was a motivating factor in Hilton-Siebert’s decision
to deny him a bonus in 2018, and terminate him in early 2019.
Id., p. 7. In sum, Tricarico maintains that while he expressly indicated when he was hired that he
did not have a disability or need any accommodation, his preexisting back problem became more
acute during his employment at MGH and that Hilton-Siebert’s “negative comments” about him
leaving work early to go to the gym demonstrate that she was aware of his disability. Based on
that, Tricarico contends that he has established the first element of an ADA claim–that he was a
qualified individual with a disability.
MGH replies by arguing that “[i]t is undisputed that Tricarico was not ‘disabled’ under
the ADA because he admitted his alleged impairment (degenerative disc disease) did not
substantially limit him in any major life activities.” Defendant’s Reply (ECF No. 36), p. 6 (citing
Tricarico Depo., ECF No. 30-3, p. 152). MGH also notes that “Tricarico relies on a
determination by the Veterans Administration dated August 1, 2019[,] to substantiate his
assertion that he is ‘now’ disabled. . . . The obvious problem for Tricarico is that he was denied a
bonus in December of 2018 and terminated on January 14, 2019. . . . Attempting to substantiate
that he is disabled ‘now’ as a result of an assessment in August of 2019 is completely immaterial.
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 16 of 29
The timing of determining whether a person is a qualified individual with a disability under the
ADA is at the time of the adverse employment action in this case, December of 2018 through
January of 2019 . . . There is absolutely no evidence indicating Tricarico’s back condition was
disabling at the end of 2018 and in early 2019.” Id., p. 7 (citing Hamm v. Exxon Mobil Corp., 223
Fed.Appx. 506, 508 (7th Cir. 2007)). MGH insists that “[d]escribing the current symptoms of a
condition is not the same as producing actual evidence of a substantial limitation in a major life
activity at the time of an adverse employment action.” Id. (citing Fleishman v. Continental Cas.
Co., 698 F.3d 598, 606-07 (7th Cir. 2012) (plaintiff “cannot rely on ‘the name or diagnosis of the
impairment’; rather, he must show ‘the effect of that impairment’ on him. Under this standard,
[plaintiff’s] bare assertion that his aneurism constitutes a disability is insufficient.’”)); see also,
Burnett v. LFW Inc., 472 F.3d 471, 483 (7th Cir. 2006) (citing Tice v. Ctr. Area Transp. Auth.,
247 F.3d 506, 513 (3d Cir.2001) (“It is well-established that a particular diagnosis, no matter
how severe (or severe-sounding to the layperson), standing alone, is not sufficient to establish
‘disability.’ Rather, the inquiry as to disability is to be made on a case-by-case basis.”)). As the
Seventh Circuit explained in Burnett:
Burnett would have us find that he was disabled purely because he was suffering
from undiagnosed prostate cancer at the time of the adverse employment action.
Unfortunately for Burnett, however, typically diagnosis does not prove disability.
See 29 C.F.R. pt. 1630, App., § 1630.2(j) (“The determination of whether an
individual has a disability is not necessarily based on the name or diagnosis of the
impairment the person has, but rather on the effect of that impairment on the life
of the individual.”); see also Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 56667, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) (holding that while some conditions
are invariably substantially limiting, to determine whether other conditions are
disabling requires an individualized assessment); Tice v. Ctr. Area Transp. Auth.,
247 F.3d 506, 513 (3d Cir. 2001) (“[I]t is well-established that a particular
diagnosis, no matter how severe (or severe-sounding to the layperson), standing
alone, is not sufficient to establish ‘disability.’ Rather, the inquiry as to disability
is to be made on a case-by-case basis.”). . . . Even giving Burnett the benefit of all
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 17 of 29
inferences, we find he has failed to show that he had an impairment that
substantially limited a major life activity. Although Burnett fails to expressly
identify the affected major life activity, we will presume that he seeks to show that
he was substantially limited in the major life activity of working. Under the ADA,
“[t]he inability to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i); see
Kupstas v. City of Greenwood, 398 F.3d 609, 612 (7th Cir. 2005). Rather, “[t]he
term substantially limits means significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities.” 29 C.F.R. §
1630.2(j)(3)(i) (emphases added); see also Sutton v. United Air Lines, 527 U.S.
471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Because Burnett has failed to
show (or to even attempt to show) that his [alleged disability] substantially limited
his ability to perform a class or broad range of jobs, he has not established a
substantial limitation in the major life activity of working.
Burnett has likewise failed to show that [defendant] regarded him as having a
substantially limiting impairment. Nothing in the record suggests that [defendant]
considered Burnett to be impaired or substantially limited in his ability to carry
out his duties.
Burnett v. LFW Inc., 472 F.3d at 483-84. Similarly, in the present case, Tricarico admitted in his
deposition that his back condition did not substantially limit a major life activity (in this case,
working). He emphasizes repeatedly that he was diagnosed with degenerative disc disease, but as
MGH argues, he concedes that his condition did not substantially limit his ability to carry out his
duties. And, his diagnosis was contained in a Veteran’s Administration determination dated
August 1, 2019, nine months after he was denied a bonus and eight months after he was
terminated. Tricarico presents no evidence that MGH was aware of his alleged disability or
considered him disabled when it denied him a bonus or when it terminated him. The only
evidence he presents is that MGH provided him with a VariDesk in 2017 and that Hilton-Siebert
knew that he went to the gym because he had issues with his back. MGH argues that this
evidence is woefully insufficient to establish the first element of an ADA claim:
The undisputed facts establish Tricarico never informed the Hospital he suffered
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 18 of 29
from a disability; thus, his alleged disability could not be the “but for” cause of
any adverse actions. Tricarico contends that in the spring or summer of 2017, he
told Hilton-Siebert he goes to the gym to strengthen his core and stretch because
he had “issues” with his back. (Response §II(C), pg. 5; Tricarico 107:4-21). This
assertion is at least three evidentiary steps away from establishing a genuine issue
of fact regarding the existence of a disability. First, even assuming Tricarico said
what he contends, a general statement of having “issues” with his back is not even
indicative of suffering from an impairment, much less a disability under the ADA.
Second, Tricarico presents no evidence that Hilton-Siebert interpreted his vague
description of back “issues” as a substantially limiting disability. Third, and
perhaps most significantly, Tricarico fails to connect his alleged comment in the
spring/summer of 2017 to any adverse action 18 months later.
Tricarico attempts to fill these evidentiary gaps with speculation. He concludes
that Hilton-Siebert “knew that he would change into his workout clothes at the
end of the day, and that the reason for this was because of his military-related
disability.” (Response §IV(B), pg. 18). The conclusion does not follow from the
premise. It is true Hilton-Siebert knew Tricarico walked around the office in
workout clothes and that he often left work early in the afternoon to go the gym,
but those facts do not lead to the ultimate conclusion that he suffered from a
“military-related disability.” Only speculation connects them. Jones, 2020 WL
6291462 at *2 (“Inferences supported only by speculation or conjecture will not
suffice”). It is undisputed that at no time while employed by the Hospital did
Tricarico inform anyone, including Hilton-Siebert, that he was disabled or
required an accommodation.
Defendant’s Reply, pp. 8-9. MGH concludes its argument on this issue by contending that
“[e]ven if Hilton-Siebert had been aware of Tricarico’s alleged disability, there is no evidence
connecting his degenerative disc disease to the denial of a bonus, or his termination.” Id., p. 9.
MGH argues that:
Tricarico also invites the Court to consider his “leaving work early” as evidence
that Hilton-Siebert interpreted his back “issues” as disabling. While it is true that
one of the examples Hilton-Siebert expressed for her assessment that Tricarico
was not performing well was that he did not “work very hard.” (Response §II(D),
pg. 6-7). Tricarico implies that Hilton-Siebert’s assessment of his poor work ethic
was code for disability discrimination. (Id.). As noted above, by his own
admission, Tricarico never informed Hilton-Siebert (or anyone else) that he
suffered from any disability. (Tricarico 107:13-18). More to the point, there is no
evidentiary connection between Tricarico’s gym usage at 4:30 p.m. and any
adverse employment action. Ultimately, whether he was disabled or not, Tricarico
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 19 of 29
cannot support a claim of discrimination by claiming his work ethic as the
Hospital’s “second in command” is off-limits to scrutiny.
Id. Finally, MGH notes that “Tricarico offered additional speculative conclusions that because
the Hospital allowed him to purchase a standing desk, that Hilton-Siebert knew he was disabled.
(Response §§II(C), IV(A), pg. 5, 17). However, it is undisputed that Tricarico never mentioned a
disability accommodation in relation to the desk purchase. (Tricarico 108:5-13).” Id. Indeed,
Tricarico testified that he talked to Hilton-Siebert “sometime in 2017” about purchasing a
VariDesk (which he got) but did not recall any other conversation with her and did not know
whether Hilton-Siebert “ha[d] to approve [him] buying a desk.” Tricarico Depo., p. 108. He does
not assert that he told Hilton-Siebert (or anyone else) that the VariDesk was necessary because he
had a disability, only that his back would stiffen up if he was sedentary for too long.
At the end of the day, Tricarico’s only evidence that he was a qualified individual with a
disability is his own conclusion that he was, coupled with his assertion that since he got a
VariDesk and since Hilton-Siebert knew that he sometimes left work around 4:30 p.m. to go to
the gym to relieve his back pain, he was therefore disabled. In other words, his argument that he
was a qualified individual with a disability is, as MGH contends, based on speculation and legal
conclusions, which are insufficient to survive summary judgment. Tricarico presents no evidence
from which a reasonable jury could conclude that he was discriminated against for having a
disability. For these reasons, MGH’s motion for summary judgment is granted as to Tricarico’s
III. USERRA claim.
Tricarico alleges that MGH’s actions violated his rights under the Uniformed Services
Employment and Reemployment Rights Act. USERRA provides that “‘[a] person who is a
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 20 of 29
member of . . . a uniformed service shall not be denied . . . retention in employment, promotion,
or any benefit of employment by an employer on the basis of that membership.’” Smith v. FCA
US LLC., No. 1:17-CV-4262, 2019 WL 2642917, at *5 (S.D. Ind. June 26, 2019) (quoting 38
U.S.C. § 4311(a)). “Such discrimination exists where the employee’s service membership was ‘a
motivating factor’ in the employer’s adverse action ‘unless the employer can prove that the
action would have been taken in the absence of such membership.’” Id. (quoting 38 U.S.C. §
4311(c)(1)). “‘This provision creates a two-step burden-shifting scheme: (1) once a plaintiff
makes out a prima facie case by showing that his membership was ‘a motivating factor,’ (2) the
burden shifts to the employer to prove that it would have taken the same action regardless.’” Id.
(quoting Arroyo v. Volvo Grp. N. Amer., LLC, 805 F.3d 278, 284 (7th Cir. 2015)).
Tricarico bases his USERRA claim on statements and comments he alleges HiltonSiebert made regarding his military service and background. He states in his Complaint that
“Hilton-Siebert made repeated comments to Tricarico expressing disapproval of his military
background” and that she “told Tricarico that she didn’t like his ‘military style.’” Complaint, p.
3, ¶¶ 19-20. Later in his Complaint, in a section titled “Count III: Violation of the
USERRA–Discriminatory Discharge,” Tricarico states that the claim is based on the fact that he
“is a veteran of the United States armed services[,]” that “MGH treated [him] differently from
other employees because of his military veteran status[,]” that “MGH would not have terminated
Tricarico’s employment, but for his military veteran status[,]” and that he “suffered damages as a
result of MGH’s termination of his employment[.]” Id., pp. 6-7, ¶¶ 51-53, 55. Those conclusory
statements are the only allegations in Tricarico’s Complaint supporting his USERRA claim.
MGH insists that Tricarico has no evidence to support his USERRA claim. MGH
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 21 of 29
contends that “Tricarico cannot point to any evidence that his military veteran status was a
motivating factor in the decision to reject him or a bonus and to terminate his employment.”
Defendant’s Brief in Support (ECF No. 30), p. 13.
In response, Tricarico alleges as follows:
[In late 2017] Hilton-Siebert began making negative comments about Tricarico’s
“military style.” . . . HiltonSiebert told Tricarico that she does not like being
called “ma’am[.]” . . . She told Tricarico twice he needed to change his military
style and his military ways. . . . She threatened that “the only thing standing
between you and the door is me.” . . . A few months later, she stood in his office
doorway and said, “I’m still here, and I’m still evaluating your military ways.” . . .
Timing is not the only link between the comments, and Tricarico’s termination.
Hilton-Siebert directly linked Tricarico’s veteran status to his termination in the
comments themselves–implying that he would be fired if he did not change his
Plaintiff’s Response (ECF No 31), p. 19 (internal citations to Tricarico deposition omitted).
MGH argues in reply that Hilton-Siebert did not harbor animus about Tricarico’s military
background and, in fact, that she respected and appreciated veterans. Hilton-Siebert stated in her
14. I was fully aware of Tricarico’s status as a military veteran when he was
interviewed and hired.
15. I viewed Tricarico’s military experience as a positive for Marion General.
16. I have several family members who are veterans and I have worked with the
American Legion, as well as the VFW . . . for over twenty years.
Affidavit of Hilton-Siebert (ECF No. 30-5) (paragraph numbers in original). Hilton-Siebert also
notes in her affidavit that she hired two other veterans into high-level positions. Id., p. 5, ¶¶ 3237. MGH and Hilton-Siebert insist it was not Tricarico’s military service she took issue with, but
rather his “militaristic style” to performing his job. She stated in her affidavit that she
“considered Tricarico to have an authoritarian style of work and leadership and I informed him of
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 22 of 29
my belief that he acted in an authoritarian manner. . . . I observed Tricarico’s interactions and
also reviewed email communications he had with Hospital staff that led me to conclude Tricarico
regularly attempted to assert his authority over people in ways that I did not think was
appropriate or productive. . . . I honestly believe that Tricarico’s approach was a bad fit for the
culture of Marion General.” Id., ¶¶ 39-40. MGH adamantly maintains that it had legitimate,
nondiscriminatory reasons for denying Tricarico a bonus and for firing him. Hilton-Siebert stated
that “[o]ver the course of his employment with the Hospital, I identified many performance
deficiencies that warranted Tricarico’s termination. The three fundamental reasons that led me to
discharge Tricarico included: 1) his failure to meet the expectations required of CAO; 2) his
inability or unwillingness to work well with other; and 3) an approach to leading and working
that were not consistent with my expectation fo the culture of Marion General.” Id., pp. 7-8, ¶ 56.
In sum, MGH contends that it was not Tricarico’s military veteran status that led to his
discharge, but rather his militaristic style of managing, and that it had legitimate reasons for
firing him that had nothing to do with his military background. MGH insists that “[r]ather than
address the important difference between Tricarico’s alleged ‘style’ or ‘ways’ and his actual
‘status’ as a military veteran, Tricarico again attempts to change the terms of the argument by
equating his military ‘experience’ with his military ‘status,’ and then equating military
‘experience’ to his military ‘style.’ This is a tortured attempt to do not more than conflate the
issues in an effort to arrive at the weak conclusion that Tricarico’s ‘style’ should be protected by
law. It is not.” Defendant’s Reply (ECF No. 36), pp. 10-11. Tellingly, MGH contends that
“Tricarico’s version of these alleged offending statements [by Hilton-Siebert], even if true,
cannot be interpreted the way Tricarico argues. The key provision of USERRA, for purposes of
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 23 of 29
this case, is to ‘prohibit discrimination against persons because of their service in the uniformed
services.’ 18 U.S.C. § 43019(a)(3). The law protects those who hold the ‘status’ of a of a former
member of the military. . . . Indeed, Tricarico’s Complaint asserts that he was discriminated
against based on his ‘status’ as a military veteran. . . . Tricarico implies a connection between
these alleged comments concerning his ‘ways’ and ‘style’ and his military ‘status,’ but that is not
a resaonable interpretation of what USERRA protects.” Defendant’s Brief in Support (ECF No.
30), p. 18 (italics added). It is precisely because the facts are subject to interpretation that this
issue cannot be resolved on summary judgment. Examining the evidence in a light most
favorable to Tricarico, and drawing all reasonable inference in his favor, the Court concludes that
a jury could “interpret” Hilton-Siebert’s alleged comments as relating to Tricarico’s military
background and service or could “interpret” them to mean what she says they meant–that it was
Tricarico’s military “style” that she objected to, not his status as a veteran.
MGH is correct that a plaintiff’s “military style” approach to performing his or her job is
not protected by the USERRA–only a plaintiff’s status as a military member or veteran is
protected by the statute. In the present case, however, after considering the evidence in a light
most favorable to Tricarico, and drawing all reasonable inference in his favor, as the Court must
do at this stage, the Court concludes that Tricarico’s USERRA claim must be presented to a jury.
It would be inappropriate at the summary judgment stage for the Court to resolve the dispute over
whether it was Tricarico’s military status or his military style that led to his discharge. Resolution
of this issue requires a weighing of the evidence and credibility determinations.5
MGH also asserts that “the Hospital is entitled to rely on the ‘same-actor’ inference,
which is ‘the theory that because the same person’ is alleged to have initially treated the plaintiff
well, but later took an adverse action against him, ‘it is unlikely that [decision maker] had a
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 24 of 29
IV. Retaliation Claims.
Tricarico alleges that MGH retaliated against him because he complained about
discrimination on the basis of his disability and his military service. Tricarico asserts that he
engaged in protected activity when his former attorney sent the letter to MGH complaining about
discrimination on January 8, 2019, and that he was fired six days later for having done so. MGH,
of course, argues that the letter had no impact on its decision to terminate Tricarico, which had
already been made before the letter arrived (although MGH concedes that it “delayed
discriminatory motive.’” Defendant’s Reply (ECF No. 36), p. 3, n. 2. Just like Tricarico’s
statement that he could employ the “convincing mosaic” test to prove his case (he cannot), this
statement by MGH is also wrong. As the Seventh Circuit has explained:
Our cases . . . have clarified that this inference is not a conclusive presumption
and that it should be considered by the ultimate trier of fact rather than on
summary judgment or the pleadings. See, e.g., Perez [v. Thorntons, Inc.], 731
F.3d [699,] 709 [7th Cir. 2013] (“The ‘common actor’ or ‘same actor’ inference is
a reasonable inference that may be argued to the jury, but it is not a conclusive
presumption that applies as a matter of law. . . . That inference is ‘something for
the trier of fact to consider.’”) (citations and quotations omitted); Herrnreiter v.
Chicago Housing Authority, 315 F.3d 742, 747 (7th Cir. 2002) (“It is misleading
to suggest (as some cases do) that [the common actor inference] creates a
‘presumption’ of nondiscrimination, as that would imply that the employee must
meet it or lose his case. It is just something for the trier of fact to consider.”)
(citations omitted); Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 361 (7th Cir.
2001) (“We emphatically rejected the ‘same-actor inference’ in the
race-discrimination setting in Johnson v. Zema Systems Corp., 170 F.3d 734, 745
(7th Cir. 1999). . . .”).
We have tried to impose limits on the common actor inference to ensure it does
not outgrow its usefulness. The inference may be helpful in some limited
situations, which is why “we allow the jury to hear such evidence and weigh it for
what it is worth.” Perez, 731 F.3d at 710.
McKinney v. Off. of Sheriff of Whitley Cty., 866 F.3d 803, 814-15 (7th Cir. 2017) (italics added).
Accordingly, MGH’s argument regarding the common actor inference can be presented to the
jury, but it is not a factor the Court can consider on summary judgment.
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 25 of 29
implementation” of the termination decision until after it had reviewed and considered the letter).
The ADA prohibits employers from retaliating against employees who assert their rights
under the act. 42 U.S.C. § 12203(a). To prevail on his retaliation claim, Tricarico must show that
(1) he “engaged in a statutorily protected activity; (2) he suffered an adverse employment action;
and (3) there is a causal connection between the two.” Collins v. Am. Fed'n of State, Cty. & Mun.
Emps. Council 962, No. 19-CV-4390, 2021 WL 3140763, at *2 (S.D. Ind. July 26, 2021)
(quoting Guzman v. Brown County, 884 F.3d 633, 642 (7th Cir. 2018)).
Similarly, “[i]n order to establish a retaliation claim [under USERRA a plaintiff] must
demonstrate that (1) he engaged in activity protected under USERRA and (2) [defendant] took
an adverse employment action against h[im]as a result.” Smith v. Vill. of Downers Grove, No.
18-CV-05649, 2020 WL 1491177, at *13 (N.D. Ill. Mar. 26, 2020), appeal dismissed sub nom.
Smith v. Vill. of Downers Grove, IL, No. 20-1613, 2020 WL 6039134 (7th Cir. Sept. 3, 2020)
(citing Gross [v. PPG Industries, Inc.], 636 F.3d  892 [7th Cir. 2011])).
In this case, MGH contends that “Tricarico’s sole argument is temporal proximity–the
short time between the Hospital’s receipt of the letter and the termination of his employment a
week later. . . . The key problem for Tricarico is that he cannot point to any evidence establishing
that Hilton-Siebert was aware of the letter prior to making the decision to terminate him. That
problem is insurmountable for Tricarico because the letter had not yet been received when
Hilton-Siebert decided to fire him.” Defendant’s Reply (ECF No. 36), p. 12.
Tricarico’s claims of retaliation are based on his attorney’s letter sent to MGH on
January 8, 2019, in which he complained about discrimination on the basis of his status as a
“disabled veteran.” MGH does not dispute that Tricarico can establish the first two prongs of a
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 26 of 29
prima facie case of ADA and USERRA retaliation claims, but argues that he cannot establish a
causal connection between that protected activity and his termination–again, because MGH says
it made the decision before receiving the letter. In her deposition, Hilton-Siebert testified that the
decision to fire Tricarico had already been made before she received Tricarico’s attorney’s letter
(id., pp. 44-45: “. . . I had already decided to terminate him as previously stated in early
December.”). She testified that MGH’s decision was not impacted by Tricarico’s attorney’s letter
(id., p. 44), but she also testified that MGH “[d]elayed implementing the decision long enough to
evaluate the letter, but it had nothing to do with the decision” (id., p. 48 (italics added)).6 She
testified that she met with Tricarico and Karen Jones, director of human resources, on January
14, 2019, to inform him of his termination (id., p. 42). Hilton-Siebert Depo., (ECF No. 30-2, pp.
There are genuine issues of fact that must be resolved and, more significantly, credibility
determinations that must be made regarding the issue of MGH’s decision to terminate Tricarico
less than a week after receiving his attorney’s letter. It is true, as MGH argues, that “in ADA
discrimination cases, temporal proximity alone is rarely enough to preclude summary judgment.”
Stone v. City of Indianapolis Pub. Utils Div., 281 F.3d 640, 644 (7th Cir. 2002).7 It is also true,
It was at some point between January 5, the date Hilton-Siebert received a draft of the
Separation Agreement, and January 14, the date Tricarico was told he was being terminated, that
Hilton-Siebert (with input from Karen Jones) completed the Separation Agreement, inserting a
termination date of January 14 and setting forth the amount of money MGH was intending to pay
Tricarico upon termination (had he accepted the Agreement).
While “temporal proximity alone is rarely enough” to support a retaliation claim and
survive summary judgment, that doesn’t mean it is never enough: “‘[f]or an inference of
causation to be drawn solely on the basis of a suspicious-timing argument,’ courts ‘typically
allow no more than a few days to elapse between the protected activity and the adverse action.’”
Nigro v. Indiana Univ. Health Care Assocs., Inc., No. 19-CV-03936, 2021 WL 3913484 (S.D.
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 27 of 29
however, that “[w]hen viewed in light of other evidence, such as evidence of pretext, timing can
raise triable issues.” Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012). As to MGH’s
steadfast position that Tricarico was fired because of performance problems, he argues in
response that those alleged problems are a smokescreen. He notes that “throughout his entire
employment with MGH, Tricarico was never counseled, verbally or otherwise, on any
performance issues–let alone the specific issues mentioned” by MGH. Plaintiff’s Response (ECF
No. 31, p. 8). He further notes that “[i]n December of 2017, Tricarico received the second highest
performance-based bonus at MGH, apart from Hilton-Siebert herself.” Id. (citing to HiltonSiebert Deposition). Tricarico contends that Hilton-Siebert’s assertion that he didn’t get along
with others “is simply not true.” Id., p. 9. Tricarico insists that he “was fully devoted to his
job[,]” that he would often “work at home and over the weekend, beyond just the hours he was
physically located in the office,” and that he “was one of the first people to arrive at work every
morning” even though “Hilton-Siebert was not aware of this fact, because the majority of the
time, when she arrived at work, Tricarico was already there.” Plaintiff’s Response in Opposition
(ECF No. 31), p. 6. Tricarico asserts that Hilton-Siebert’s statements that Tricarico did not “work
very hard,” that he had “an unwillingness to engage and devote the time needed for success of the
Hospital[,]” and that he routinely ended his work day at 4:30 p.m., are wrong because he was
working many more hours than Hilton-Siebert alleged. Id., p. 7. In sum, Tricarico argues that
Ind. Sept. 1, 2021) (quoting Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012)). In this
case, it is undisputed that Tricarico was fired six days after MGH received his attorney’s letter
(i.e., six days after he engaged in “protected activity”). A jury must weigh the significance of the
timing of the decision in this case, as well as the veracity of MGH’s contentions that none of this
matters because the termination decision was made before Tricarico’s attorney’s letter arrived
and/or that the letter had no effect on its decision.
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 28 of 29
MGH’s and Hilton-Siebert’s allegations regarding his job performance are exaggerated or untrue.
Tricarico contends that “[t]he evidence about timing of the termination decision is
contradictory, and the decision could have been made after Tricarico engaged in protected
activity by sending a letter alleging discrimination.” Plaintiff’s Response (ECF no. 31), p. 21.
This is a reiteration of Tricarico’s argument in opposition to MGH’s motion to file a different
version of the Separation Agreement. Tricarico contends that Hilton-Siebert’s deposition
testimony and her affidavit were contradictory. The Court disagrees with that argument but does
agree that the veracity of MGH’s assertion that it unequivocally made the decision to fire
Tricarico before receiving his attorney’s letter–and that the letter had no impact on the decision
so MGH proceeded to terminate Tricarico even after receiving it–must be determined by a jury.
MGH responds by arguing that “Tricarico’s conclusion about what ‘could have’ happened is the
very definition of speculation.” Defendant’s Reply (ECF No. 36), p. 13. That would be true if
speculation is all that Tricarico had to support his retaliation claims. But the issue of the timing
of Tricarico’s termination, coming as it did on the heels of his attorney’s letter, coupled with
MGH’s concession that it delayed implementation of its termination decision long enough to
review the letter and then decided to proceed anyway, and the fact that Tricarico was never
counseled or reprimanded for any performance problems, gives rise to issues that cannot be
resolved on summary judgment–a weighing of the evidence and credibility determinations. As
this Court stated recently in another case, whether Plaintiff’s evidence and arguments are
sufficient to sway a jury remains to be seen, but they sufficient to get to one. For these reasons,
MGH’s motion for summary judgment on Tricarico’s ADA and USERRA retaliation claims
must be denied.
USDC IN/ND case 1:20-cv-00092-WCL-SLC document 39 filed 09/08/21 page 29 of 29
For the reasons set forth above, Defendant MGH’s motion for leave to substitute exhibit
(ECF No. 35) is GRANTED and MGH’s motion for summary judgment (ECF No. 29) is
GRANTED in part and DENIED in part.
Date: September 8, 2021.
/s/ William C. Lee
William C. Lee, Judge
U.S. District Court
Northern District of Indiana
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?