Hillmann v. City of Chicago (14 F. Supp. 3d 1152, 2014)

United States District Court for the Northern District of Illinois 2014-03-31

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

RUBÉN CASTILLO, Chief Judge.

Plaintiff Robert P. Hillmann filed this action against his former employer, the City of Chicago, alleging that his termination was illegal on various grounds. Plaintiff originally brought five claims in this case, alleging breach of contract, discrimination in violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq., retaliation in violation of the ADA, political hiring and firing decisions in violation of the First Amendment of the United States Constitution, and retaliation and denial of medical benefits in violation of the Illinois Workers’ Compensation Act (the “IWCA”), 820 Ill. Comp. Stat. 305/1 et seq. (R. 125, Third Am. Compl.) On September 26, 2007, 2007 WL 2827806, Judge Wayne R. Andersen granted Defendant’s motion for summary judgment as to the breach of contract claim, the First Amendment claim, and the denial of medical benefits portion of the IWCA claim. (R. 188, Mem. Op. and Order.) Upon Judge Andersen’s retirement, this case was reassigned to Judge William J. Hibbler, (R. 247, Exec.Comm.Order), who presided over the seven-day jury trial on Plaintiffs remaining claims in June 2011, (R. 311, Min. Entry). Judge Hibbler unfortunately and prematurely passed away before he issued findings of fact and conclusions of law or a ruling on the equitable ADA retaliation claim, and the case was reassigned to this Court. (R. 338, Exec.Comm.Order.) This Court granted Plaintiffs motion for a new trial, (R. 362, Pl.’s Mot.; R. 376, Min. Entry), which took place over seven days in April 2013, (R. 483, Min. Entry; R. 484, Min. Entry; R. 488, Min. Entry; R. 489, Min. Entry; R. 492, Min. Entry; R. 493, Min. Entry; R. 501, Min. Entry). The jury trial was simultaneously a bench trial on Plaintiffs ADA retaliation claim, and the Court used the jury in an advisory capacity as to that claim. (See R. 420, Min. Entry.) On April 17, 2013, the jury returned a verdict in favor of Defendant on Plaintiffs ADA discrimination claim, ADA failure to accommodate claim, and ADA retaliation claim. (R. 500, Verdict.) The jury returned a verdict in favor of Plaintiff on his claim of retaliatory discharge under the Illinois Workers’ Compensation Act and assessed damages of two million dollars. (Id.)

Presently before the Court are: (1) Plaintiffs motion to vacate the advisory jury verdict as to Plaintiffs ADA retaliation claim (R. 503); (2) Defendant’s renewed motion for judgment as a matter of law (R. 508); (3) Defendant’s motion to reinstate the original jury verdict or, alternatively, for a new trial (R. 511); (4) Defendant’s motion for remitter or, alternatively, for an evidentiary hearing as to damages (R. 515); and (5) Defendant’s motion for the Court to issue findings of fact and conclusions of law in its favor on Plaintiffs ADA retaliation claim (R. 521). The Court begins by setting forth its findings of fact and conclusions of law as to Plaintiffs ADA retaliation claim. The basis of Plaintiffs claim of retaliation in violation of the ADA is his allegation that after each request for a reasonable accommodation for his disability, which he made “in person or through legal counsel,” Defendant retaliated against him by denying merit pay increases, transferring him or creating new job duties that further injured him, and ultimately terminating him. (R. 125, Third Am. Compl. ¶ 68.)

Pursuant to Federal Rule of Civil Procedure 52, this Court hereby enters the following written Findings of Fact and Conclusions of Law, which are based upon consideration of all the admissible evidence as well as this Court’s own assessment of the credibility of the trial witnesses. To the extent, if any, that Findings of Fact, as stated, may be considered Conclusions of Law, they shall be deemed Conclusions of Law. Similarly, to the extent that matters expressed as Conclusions of Law may be considered Findings of Fact, they shall also be deemed Findings of Fact. The Court’s Conclusions of Law are limited to Plaintiffs claim of retaliation in violation of the ADA. For the sake of efficiency, however, the Court includes in its Findings of Fact facts that are pertinent to the remaining post-trial motions, which are discussed below.

FINDINGS OF FACT

This Court concludes that Plaintiff established through both direct and circumstantial evidence, as well as reasonable inferences drawn therefrom, the following facts by a preponderance of the evidence:

I.General Background

1. Plaintiff began working for the Chicago Park District in June 1973 as a park attendant. (Trial Tr. at 31:2-7.) He worked as a park attendant for approximately five and a half years and then took a job as a truck driver with the Chicago Department of Streets and Sanitation (“the Department”). (Trial Tr. at 31:10-14.)

2. In or around November 1984, Plaintiff developed cervical radiculopathy. (Trial Tr. at 32:5-8.) Cervical radiculopathy is the interference of normal nerve function that results from pinched or compressed nerves. (Trial Tr. at 121:1-10.) This interference can cause pain, weakness, limited mobility, and the loss of sensation in a person’s arm. (Trial Tr. at 121:5-14.) Cervical radiculopathy is typically a permanent condition. (Trial Tr. at 121:15-21.) Plaintiffs condition caused pain and swelling in his neck and right arm. (Trial Tr. at 32:12-14.)

3. In 1995, Plaintiff sought an accommodation from the City to allow him to avoid repetitive work with his right arm because of his condition. (Trial Tr. at 201:20-23.) As part of the ensuing 1995 Agreement between Plaintiff and the City, Plaintiff was promoted to the role of Chief Timekeeper and assigned to the Bureau of Electricity (the “BOE”), a division of the Department of Streets and Sanitation. (Trial Tr. at 52:17-20, 224:19-24, 225:8-13, 226:16-21.)

4. Dr. Michael F. Gonzales, Plaintiffs treating physician, began treating Plaintiff for cervical radiculopathy in the mid-1980s. (Trial Tr. at 120:12-15.) Dr. Gonzales specializes in physical medicine and rehabilitation and pain medicine. (Trial Tr. at 117:18-118:2.) Between the 1995 Agreement and the year 2000, Dr. Gonzales saw Plaintiff for unrelated reasons but did not treat Plaintiffs cervical radicu-lopathy because it was stable and did not need treatment during that time period. (Trial Tr. at 124:1-7, 156:2.) In 2000, Dr. Gonzales observed “a significant change in [Plaintiffs] condition” that required further treatment. (Trial Tr. at 124:15-125:5.) Specifically, Plaintiffs right arm, shoulder, and hand were swelling and causing him pain. (Trial Tr. at 124:24-125:2.) Dr. Gonzales observed Plaintiffs condition worsening between 2000 and when he stopped seeing Plaintiff in 2002 or 2003. (Trial Tr. at 155:23-156:4.)

II. Transition of Duties in the BOE

5. In his role as Chief Timekeeper of the BOE, Plaintiff reported to Deputy Commissioner Jim Heffernan from 1995 until May 2000. (Trial Tr. at 226:16-21, 232:22-233:5.) Plaintiffs understanding of the 1995 Agreement was that he would not be performing all of the duties of a Chief Timekeeper. (Trial Tr. at 227:19-22.) The Chief Timekeeper job description listed, as examples of duties:

Directs, coordinates and reviews departmental timekeeping functions to ensure accurate and proper reporting of information, directs and supervises a large group of clerical personnel engaged in various timekeeping and payroll administration activities; examines reports and records to verify the execution of proper timekeeping methods; assigns and supervises a group of Supervising Timekeepers who check employees’ presence an [sic] the job; represents the department at various meetings and conferences pertaining to the performance of various timekeeping and payroll activities; reviews time verification reports and payroll sheets for accuracy and to ensure proper processing; resolves complaints pertaining to timekeeping or payroll methods or procedures; maintains records and prepares various monthly progress and status reports.

(Def.’s Ex. 3.) Plaintiff performed some of the Chief Timekeeper duties, such as preparing overtime reports, supervising a group of supervising timekeepers below him, and directing clerical personnel. (Trial Tr. at 230:12-231:11, 236:11-15.) He also prepared memoranda to Heffer-nan to inform him when employees were claiming excessive overtime pay. (Trial Tr. at 54:16-56:12.)

6. Additionally, Plaintiff performed duties Heffernan directly assigned to him, including conducting research, attending meetings, and writing reports associated with the project to implement the City’s emergency telephone 911 system, timekeeping duties, and independent research projects Heffernan assigned. (Trial Tr. at 231:20-232:9, 233:15-235:16.)

7. In May of 2000, Heffernan was removed as the authority figure in the BOE and Bart Vittori assumed responsibility for the administration of the BOE. (Trial Tr. at 58:4-7, 243:17-25.) On August 16, 2000, Brian Murphy succeeded Heffernan as the Deputy Commissioner of the BOE. (Trial Tr. at 844:16-845:6.) In that position, Murphy supervised and managed employees in the BOE, and he was supervised by John Sullivan. (Trial Tr. at 845:7-14.)

A. Aggravation of Plaintiffs injury

8. Vittori assigned Plaintiff job duties that involved handwriting and data entry and required repetitive use of his right arm. (Trial Tr. at 58:24-59:6, 244:15-17, 245:1-6.) Plaintiff did not immediately inform Vittori that he had any work restrictions. (Trial Tr. at 249:3-8, 250:2-4.) In late June of 2000, Plaintiff informed Hef-fernan and Hugh Donlan, the BOE’s personnel liaison to the Department, that he was having problems performing the duties Vittori assigned. (Trial Tr. at 61:23-62:12, 250:8-10.) Heffernan told Plaintiff that he had been relieved of his authority and could not do anything to help him. (Trial Tr. at 61:23-25.) At that point, Plaintiff believed that it was Donlan’s job to notify Vittori about his restrictions. (Trial Tr. at 250:25-251:1.) Nevertheless, Plaintiff performed the tasks Vittori assigned for over two months without telling Vittori that he was having problems. (Trial Tr. at 250:11-17.)

9. The swelling of Plaintiff’s hand and arm worsened over those two months because of the additional data entry and writing tasks he was assigned, and on August 7, 2000, his arm was so swollen that he could not even hold a pen, let alone perform his job duties. (Trial Tr. at 262:20-263:11, 271:4-6.)

10. On August 8, 2000, Plaintiff informed Vittori about his injury and told Vittori that he could not continue to perform the tasks Vittori had assigned him. (Trial Tr. at 262:5-9.) In response, Vittori told Plaintiff that Cliff Stevens, a supervising timekeeper in the BOE, was being transferred, and Vittori assigned Plaintiff to take over his duties. (Trial Tr. at 262:10-12, 630:24-631:4.) At that time, there were three other supervising timekeepers in the BOE. (Trial Tr. at 635:24-636:7.)

11. After Plaintiff was asked to assume Stevens’s job duties, he told Donlan that he would not be able to perform all of those duties due to medical restrictions. (Trial Tr. at 636:14-20.) Plaintiffs injury was obvious at that point, and Donlan testified that he “could physically see that” Plaintiff had “an injury of some type.” (Trial Tr. at 636:21-24.)

12. Stevens remained in the BOE until around August 18, 2000. (Trial Tr. at 267:25-268:2.) Thus, beginning on August 8th, when Plaintiff told Vittori he could no longer perform his assigned duties, he reported to work but did not perform any work duties. (Trial Tr. at 268:12-269:1.)

13. On August 15, 2000, Plaintiffs counsel sent a letter to Barbara Smith in the City’s Corporation Counsel’s office. (Pl.’s Ex. 49.) The letter informed Smith that Plaintiff had been assigned additional duties that he was unable to perform and requested that the City continue to accommodate Plaintiffs medical restrictions pursuant to the 1995 Agreement. (Id.)

14. The following day, Smith had a conversation with Catharine Hennessey about Plaintiffs 1995 Agreement. (Trial Tr. at 567:6-568:4; Pl.’s Ex. 76.) Beginning in 1998, Hennessey worked for the Department as the labor relations liaison. (Trial Tr. at 520:7-15.) In that role, she was responsible for, among other things, accommodating injured employees by attempting to find them positions that they could perform with their medical restrictions. (Trial Tr. at 522:16-523:16, 827:1-7.) Hennessey knew that Plaintiff needed to be accommodated and specifically that he needed to avoid repetitive motions with his right hand. (Trial Tr. at 569:4-7; Pl.’s Ex. 76.)

15.Hennessey asked Donlan to write a job description for Plaintiff, which he did on August 18th. (Trial Tr. at 638:9-16, 639:1-11; PL’s Ex. 106.) The first paragraph of the memorandum described Plaintiffs duties at the time as Chief Timekeeper. (Trial Tr. at 639:12-18.) The second paragraph of the memorandum described new duties that Plaintiff would be responsible for effective August 18, 2000, when he took over Stevens’s responsibilities. (Trial Tr. at 639:19-22; PL’s Ex. 106.) The new duties assigned to Plaintiff essentially described the job of a supervising timekeeper after the implementation of the Kronos timekeeping system. (Trial Tr. at 266:11-20, 639:23-640:3, 645:25-646:7.) They included:

maintaining a 240-employee payroll; receiving and entering 30-35 edits per day in the Kronos system; performing a mass edit in Kronos for 90 employees who work in the field; entering exceptions into the Kronos system; entering daily activity onto time rolls; maintaining 300 Cards; and, maintaining the Employee File Maintenance Module for said payroll.

(Def.’s Ex. 1.) Plaintiff testified that the first paragraph “pretty much” described what he had been doing all along, but the second paragraph assigned him the job of a supervising timekeeper in addition to his Chief Timekeeper tasks and consisted of tasks he could not physically perform. (Trial Tr. at 264:19-267:1.)

B. Medical evaluations and Plaintiffs workers’ compensation claim

16. On or about August 23, 2000, Plaintiff received an order, signed by Hennes-sey, to report to Dr. Barry Lake Fischer for a fitness-for-duty evaluation. (Trial Tr. at 275:1-9; Pl.’s Ex. 77.) Dr. Fischer concentrated his practice on occupational medicine — primarily pre-employment examinations and evaluation of work-related injuries. (Trial Tr. at 420:20-22.) When a patient was referred to Dr. Fischer for a fitness-for-duty evaluation, he would first be interviewed by a medical technician to get the relevant history, and then he would meet with Dr. Fischer to go over that information. (Trial Tr. at 421:18-422:2.) Dr. Fischer would then “perform a focused examination on a particular part of the body that was involved in this clinical situation.” (Trial Tr. at 422:2-4.) To properly perform a fitness-for-duty evaluation, Dr. Fischer has to refer to a job description provided by the employer to determine if the patient is physically qualified to perform that job. (Trial Tr. at 422:5-17.) If Dr. Fischer found a condition that inhibited a patient’s ability to perform his or her job, Dr. Fischer would recommend certain accommodations. (Trial Tr. at 422:18-23.)

17. Dr. Fischer diagnosed Plaintiff with probable degenerative disc disease “with clinical evidence of right cervical radiculopathy.” (Pl.’s Ex. 42.) Dr. Fischer found that Plaintiff had some atrophy in his arm, which indicated that Plaintiff had had cervical radiculopathy for some time. (Trial Tr. at 429:14-430:10; Pl.’s Ex. 42.)

18. Dr. Fischer was supplied with a job description so he could determine whether Plaintiff could or could not perform the job of Chief Timekeeper. (Trial Tr. at 426:18-25, 582:2-6.) Dr. Fischer determined that Plaintiff was qualified for his position as Chief Timekeeper with restrictions: limited use of his right arm in data input and lifting. (Trial Tr. at 426:10-15; Pl.’s Ex. 40.) Dr. Fischer faxed the results of the evaluation to Hennessey. (Trial Tr. at 425:20-22, PL’s Ex. 40.) Dr. Fischer also wrote a letter to Russell Baggett in the City’s Personnel Department outlining the results of his evaluation in detail. (Trial Tr. at 428:9-429:4; PL’s Ex. 42.) Finally, Dr. Fischer recommended that Plaintiff be treated by his personal physician and that he receive an MRI of his cervical spine to determine whether or not he was a candidate for corrective surgery. (Trial Tr. at 427:16-18, 430:11-18.)

19. Dr. Fischer was shown the August 18th memorandum for the first time at trial. (Trial Tr. at 432:19-21.) Dr. Fischer testified that the second paragraph, which described the new duties, was not in the job description he was given to reference when he evaluated Plaintiff for fitness for duty. (Trial Tr. at 432:22-25.) Dr. Fischer further testified that Plaintiff “would have difficulty doing those things.” (Trial Tr. at 433:8.)

20. Also on August 23, 2000, Plaintiff had an appointment with Dr. Gonzales. (Trial Tr. at 280:23-15.) Dr. Gonzales wrote a note that Plaintiff had “a work related injury involving his neck and right upper limb. He is to refrain from working until further notice due to his work related injury.” (PL’s Ex. 41.) Plaintiff did not provide the note to anyone at the Department because he feared being put on unpaid leave. (Trial Tr. at 289:8-16.)

21. City employees who are injured request a “blue card,” which allows the employee to see a City doctor at Mercy Works. (Trial Tr. at 723:15-17.) Without a blue card, an employee cannot go to Mercy Works. (Trial Tr. at 723:18-20.) City policy is that, without exception, a supervisor should give an employee who reports an injury at work a blue card. (Trial Tr. at 724:9-15, 726:1-2.) However, blue cards were not to be given out unless the injury occurred on duty or if the City “needed to find out from the City doctor if it was an injury on duty.” (Trial Tr. at 725:19-22.)

22. On August 24, 2000, Plaintiff went to Donlan’s office and requested a blue card. (Trial Tr. at 287:9-11.) Donlan called Hennessey; after the call, Donlan told Plaintiff that he could not give him a blue card. (Trial Tr. at 288:2-6.)

23. On September 1, 2000, Plaintiff filed a workers’ compensation proceeding with the Illinois Industrial Commission to try to get medical treatment for his injury. (Trial Tr. at 88:21-25.)

24. On that same day, September 1, 2000, Plaintiff was transferred within the BOE to the Construction Division. (Trial Tr. at 89:1-8, 272:13-18.) He was assigned to answer phones. (Trial Tr. at 290:12-15.) Plaintiff had to use his left hand to answer phones. (Trial Tr. at 290:18-19.)

25. The Committee on Finance is a group comprised of City employees that oversees workers’ compensation claims. (Trial Tr. at 442:2-9.) Dr. Gonzales was in the practice of sending bills to the Committee on Finance when he treated City employees who reported work-related injuries, such as Plaintiff. (Trial Tr. at 125:6-17.) Dr. Gonzales testified that normally, the Committee on Finance would mail him correspondence “either accepting responsibility for the injury and paying it, or denying responsibility for the injury.” (Trial Tr. at 126:6-16.) He further testified that he sent Plaintiffs bills to the Committee on Finance and advised the Committee that Plaintiffs condition was work-related. (Trial Tr. at 127:3-8.)

26. On September 7, 2000, Dr. Gonzales sent a letter to the Committee on Finance stating that Plaintiff was “under [Dr. Gonzales’s] care for treatment of injury sustained at work. The injury is a repetitive strain injury of the right upper limb.” (Pl.’s Ex. 39; Trial Tr. at 129:5-130:11.) Dr. Gonzales’s letter went on to explain what appropriate treatment of the condition would include and stated that it was “important that [Plaintiffs] treatment not be delayed. Significant delay in treatment will increase the likelihood that his condition will become refractory to treatment.” (Pl.’s Ex. 39.) Dr. Gonzales never received a response from the Committee on Finance. (Trial Tr. at 138:18-23.)

27. On or around September 11, 2000, Donlan forwarded to Hennessey the note from Dr. Gonzales indicating that Plaintiff had a work injury and needed medical treatment. (Trial Tr. at 641:15-642:11.)

28. On or around October 7, 2000, Plaintiff was transferred within the BOE to the Transportation Division to answer phones. (Trial Tr. at 91:8-9, 92:4-9.) He answered phones in the Transportation Division until December 21, 2000. (Trial Tr. at 92:23-93:2, 290:20-22.) During that time, his workers’ compensation claim was pending and he was unable to get medical treatment for his injury. (Trial Tr. at 93:3-8.)

29. On December 18, 2000, Dr. Gonzales wrote another letter stating: “[Plaintiff] is impaired by injury sustained at work. This injury affects his neck and right upper limb. I am requesting that he refrain from working until further notice due to his work related injury.” (Pl.’s Ex. 43; Trial Tr. at 131:18-132:5.) Dr. Gonzales testified that Plaintiffs condition “was clearly worse, and he was getting worse as a result of the things that he was being asked to do at work.” (Trial Tr. at 132:15-19.)

30. Dr. Gonzales never received a letter from the Committee on Finance “either accepting responsibility or denying responsibility or communicating in any other way regarding [Plaintiff].” (Trial Tr. at 127:9-14.) Dr. Gonzales testified that if he had received a letter from the Committee on Finance denying liability, he could have submitted Plaintiffs bills to his health insurance company so Plaintiff could get the medical care he needed. (Trial Tr. at 174:19-175:7.) However, Dr. Gonzales’s contract with Plaintiffs insurance provider barred him from filing claims for injuries that were work-related unless his employer denied liability. (Trial Tr. at 173:23-174:18.)

31. On December 21, 2000, Donlan hand-delivered to Plaintiff a letter signed by Hennessey. (Trial Tr. at 294:6-16; Def.’s Ex. 2.) The letter states that the Department received letters from Dr. Gonzales dated August 23, 2000, and December 18, 2000, advising that Plaintiff was to refrain from working until further notice. (Def.’s Ex. 2.) The letter went on to state, in relevant part:

Furthermore, in various conversations, you have stated that you are unable to perform the duties required of your job title as Chief Timekeeper.

However, as you are aware, the duties and responsibilities of a Chief Timekeeper have changed in recent years. I have attached a current copy of your job description. With the present conditions in mind, we must inform you that the most viable option for you is to apply for a Leave of Absence, and to return to work when your physical condition allows you to perform the duties of your job title.

You may also request a Work Evaluation from the Department of Personnel to determine if your physical restrictions will allow you to perform in some other capacity in another job title.

(Def.’s Ex. 2.) Plaintiff testified that when Donlan handed him the letter, Donlan told him not to report back to work. (Trial Tr. at 297:22-23.)

32. Plaintiff did not apply for a leave of absence because he had already filed a workers’ compensation claim with the Illinois Industrial Commission. (Trial Tr. at 299:3-10; see PL’s Ex. 115.) Upon receiving the letter, however, Plaintiff stopped going to work. (Trial Tr. at 301:12-16.)

III. Plaintiff’s Medical Evaluations

33. On January 24, 2001, Plaintiff received a letter dated January 23, 2001, from Robert J. Serafín, the Director of Workers’ Compensation in the City’s Committee on Finance. (Trial Tr. at 102:4-12; Pl.’s Ex. 15.) The letter informed Plaintiff that an MRI scan of his cervical spine and an EMG test of his upper extremities had been scheduled for him at Mercy Hospital on January 26, 2001. (PL’s Ex. 15.) The referral form for the MRI indicated that Plaintiff was referred by Dr. Damon Arnold. (Id.)

34. Dr. Arnold was the director of the occupational health network at Mercy Works. (Trial Tr. at 440:18-24.) In that role, he oversaw the operations, supervised other physicians, and treated patients. (Trial Tr. at 441:14-19.) He also acted as the liaison to the Committee on Finance and consulted on workers’ compensation claims. (Trial Tr. at 442:2-9.) Mercy Works treated patients that were injured at work and performed routine physicals and drug screens. (Trial Tr. at 441:3-7.) The City was a major client of Mercy Works. (Trial Tr. at 441:8-13.)

35. Plaintiff had never seen Dr. Arnold when he received the referral. (Trial Tr. at 103:5-12.)

36. Between January 24th and January 26th, Plaintiff received another letter from the office of Serafín, which was dated January 24, 2001. (Trial Tr. at 102:9-21, PL’s Ex. 16.) This letter advised Plaintiff that the Committee on Finance denied liability for medical care payments because it found his injury to be unrelated to his employment. (Trial Tr. at 748:25-749:3; Pl.’s Ex. 16.) Serafín testified that, to the best of his knowledge, the claim was denied because there was no accident report on file. (Trial Tr. at 795:3-7.)

37. When an employee is injured, he should request his supervisor to fill out an accident report, or a First Report of Injury. (Trial Tr. at 786:24-787:6.) When a supervisor learns of an injury on the job, he is supposed to fill out a First Report of Injury. (Trial Tr. at 729:15-24.) It is then the supervisor’s responsibility to send the First Report of Injury to the Committee on Finance. (Trial Tr. at 788:19-22.) Upon receipt of the Report, the Committee on Finance starts a file. (Trial Tr. at 789:1-6.) An employee’s workers’ compensation file is maintained by the Workers’ Compensation Division of the Committee on Finance. (Trial Tr. at 784:19-21.)

38. Alternatively, an employee can “file an adjustment of claim” with the Illinois Industrial Commission, and the Committee on Finance starts a file upon notification of that report. (Trial Tr. at 789:7-16.) Without the accident report, however, the Committee on Finance cannot process the claim and pay disability because it does not have the details of the injury, such as the date, time, description, and supervisor sign-off. (Trial Tr. at 789:17-790:3.) Thus, even if the Committee on Finance receives a Mercy Works discharge sheet indicating that an employee has a work-related injury, the Committee does not pay disability benefits until it receives a completed accident report. (Trial Tr. at 7-15.)

39. If the Committee on Finance does not receive a First Report of Injury for an individual, there is a form to be filled out to provide information about the injury and indicate that no First Report of Injury was filed. (Trial Tr. at 757:20-25.) When Serafín filled out that form with regards to Plaintiff, he marked Plaintiff as disabled and noted that his neck and right arm were injured. (Trial Tr. at 758:1-759:1.)

40. Serafín testified that denial letters like the one Plaintiff received were not final determinations, but could be reviewed later, as evidenced by the fact that Plaintiff was eventually paid temporary total disability. (Trial Tr. at 795:25-796:8.)

41. On January 26th, Plaintiff reported for his MRI scan with his referral from Dr. Arnold. (Trial Tr. at 104:6-11.) When it was discovered that Plaintiff had never seen Dr. Arnold and was ordered to get the scan by Serafín, Plaintiff was told that Serafín was not a doctor and he needed to see Dr. Arnold before the MRI scan could be performed. (Trial Tr. at 104:15-21, 105:1-5.) Plaintiff then made an appointment to see Dr. Arnold at Mercy Works on or around January 29th. (Trial Tr. at 104:22-25.)

42. Dr. Arnold examined Plaintiff for the first time on January 29, 2001. (Trial Tr. at 444:9-17.) Based on the examination and Plaintiffs medical history, Dr. Arnold concluded that Plaintiff had a work-related condition: radiculopathy of the upper extremity. (Trial Tr. at 444:15-445:4; PL’s Ex. 18.) Dr. Arnold ordered an MRI scan of Plaintiffs cervical spine for the following day, January 30th, and requested Plaintiff to return for a reevaluation on February 5th. (PL’s Ex. 18.) Dr. Arnold testified that the reason he ordered the diagnostic studies, the MRI scan and the electromyelogram, was to determine whether serious surgical intervention was required. (Trial Tr. at 466:1-12.)

43. The MRI scan revealed various os-teophytes and a herniated disc, and it indicated multilevel disc disease. (Pl.’s Ex. 17.) Dr. Arnold testified that the results of the MRI scan supported his conclusions as to Plaintiffs cervical radiculopathy. (Trial Tr. at 447:9-11.) The significance of the MRI results was the indication “that there was something anatomical” — specifically, degeneration and disk herniation. (Trial Tr. at 466:20-24.) Additionally, the electromyelogram revealed a delay in the nerve transmission between Plaintiffs shoulder and neck. (Trial Tr. at 466:24-467:11.) Dr. Arnold testified that the delay “could explain the feeling of radiculopa-thy, of having pain in the extremity.” (Trial Tr. at 467:11-12.) Accordingly, Dr. Arnold referred Plaintiff to a neurosurgeon to determine the best course of treatment. (Trial Tr. at 471:4-14; Pl.’s Ex. 22; PL’s Ex. 23.)

44. On February 5th, Dr. Arnold noted that Plaintiff was still off duty due to a work-related condition and requested Plaintiff to return for a reevaluation on February 12, 2001. (Trial Tr. at 449:1-8; PL’s Ex. 19.)

45. On February 12th, Dr. Arnold noted that Plaintiff was still off duty due to a work-related condition and requested that Plaintiff follow up with his treating physician, Dr. Gonzales. (Trial Tr. at 451:20— 24; PL’s Ex. 20.)

46. Finally, on a February 26th work status discharge sheet, Dr. Arnold discharged Plaintiff from his care. (PL’s Ex. 21.) Dr. Arnold was under the impression that Plaintiff would be working in an office setting. (Trial Tr. at 453:19-21.) Dr. Arnold indicated that Plaintiff could now perform sedentary work with limited use of his right upper extremity. (Trial Tr. at 452:19^53:2, 454:5-16; PL’s Ex. 21.) Dr. Arnold clarified that he meant that Plaintiff could work “a desk job,” “sitting down and ... doing things like minor office work.” (Trial Tr. at 454:24-455:3.)

47. On subsequent work status discharge sheets from June 20, 2001, (PL’s Ex. 22), and July 9, 2001, (PL’s Ex. 23), Dr. Arnold similarly recommended that Plaintiff could perform “sedentary work as previously” with limited use of his right arm. Dr. Arnold testified that all the forms he filled out were sent to the Workers’ Compensation division of the Committee on Finance so the Committee could determine whether the visit “should be processed as a workers’ compensation claim or denied.” (Trial Tr. at 457:18-458:11.)

48. In 2001, Jack Drumgould was the assistant commissioner in charge of personnel in the Department. (Trial Tr. at 821:21-822:8.) Drumgould received Mercy Works work status discharge sheets for all six bureaus within the Department. (Trial Tr. at 823:14-23.) Drumgould testified that the standard procedure he followed when he received a discharge sheet was to contact a deputy or personnel liaison to meet with the duty-disabled employee to determine whether there existed a position within their bureau that could accommodate the employee. (Trial Tr. at 823:14-23.) Drumgould testified that after a bureau accepted an employee with his restrictions, Drumgould would send a copy of the Mercy Works discharge sheet to the Committee on Finance so it would remove the individual from duty disability or workers’ compensation. (Trial Tr. at 824:23-825:1.) He would then send a copy to his staff so they could complete the paperwork necessary to restore the individual to the Department’s payroll. (Trial Tr. at 825:1-4.)

49. Drumgould received Dr. Arnold’s February 26, 2001 discharge sheet indicating that Plaintiff could perform sedentary work with certain restrictions. (Trial Tr. at 822:14-823:6.) Drumgould wrote on the sheet, “Cannot accommodate with restrictions” and signed and dated it on February 26, 2001. (Trial Tr. at 823:2-9; PL’s Ex. 89.) Drumgould stated that at that time, “there was no bureau or no position that could accommodate” Plaintiffs restrictions. (Trial Tr. at 823:12-13.) Drumgould also wrote on Plaintiffs discharge sheet, “CAN accommodate in Bureau of Traffic Services with restrictions as of 3-02-01.” (Trial Tr. at 824:5-9; PL’s Ex. 89.)

IV. Plaintiffs Detail to the Bureau of Traffic Services

50. Plaintiff returned to work and was “detailed” to the Bureau of Traffic Services (“Traffic Services”); a detail is a temporary assignment and means that Plaintiff was still being paid from the BOE’s budget and still held the title of Chief Timekeeper, but was being utilized by a different bureau in the Department. (Trial Tr. at 886:22-887:5.) The expectation was that once Plaintiff was again able to perform the Chief Timekeeper duties, he would return to the BOE assuming that the function was still needed. (Trial Tr. at 887:6-10.)

51. It was not uncommon for employees in the City, and particularly in the Department, to perform duties outside the scope of their job title. (Trial Tr. at 896:15-19.) They held one official job title and were paid as though they were in that position, but they performed the tasks of a different title. (Trial Tr. at 410:15-21.) John Sullivan, the Managing Deputy Commissioner at the Department who oversaw all of the bureaus in the Department and supervised each bureau’s deputy commissioner, (Trial Tr. at 697:4-15), testified that the Department of Personnel would need to be involved in order to change an official job description. (Trial Tr. at 703:8-11.) He testified, however, that the official job descriptions were “very old and outdated” and that “probably 50 percent of the people in the City work out of their job descriptions.” (Trial Tr. at 702:20-23.)

A. Plaintiffs assignment to Traffic Services

52. Hennessey’s predecessor as the labor relations liaison for the Department was William Bresnahan. (Trial Tr. at 521:21-23.) In 1998, Bresnahan became Deputy Commissioner of the Bureau of Traffic Services. (Trial Tr. at 975:24-976:14.)

53. In 2001, Bresnahan faced an issue in his duty as Deputy Commissioner of Traffic Services. (Trial Tr. at 977:11.) The City had hired an outside security company for the automobile pound because some City employees had been assaulted and battered by individuals who came to pick up their cars. (Trial Tr. at 1020:16-22.) At the end of some of the security detail’s shifts, there was “a discrepancy in the number of the cars that were supposed to be in the auto pound and the number of inventories” that were actually present. (Trial Tr. at 977:11-17.) Bresnahan believed “the security guards were letting cars go.” (Trial Tr. at 977:18-19.) To combat the suspected theft, Bresnahan assigned several people to double check the receipts to ensure that the proper car was released to the proper individual. (Trial Tr. at 977:20-23.) He requested from the Department commissioner’s office an employee that could be permanently assigned to that task. (Trial Tr. at 977:24-978:2.)

54. Bresnahan testified that someone from the commissioner’s office — potentially Drumgould — called him to inform him that an employee who had some restrictions would be able to perform the function he requested. (Trial Tr. at 979:6-13.) Drum-gould testified that he was not involved in the decision to assign Plaintiff to the auto pound and he did not discuss the decision with Bresnahan. (Trial Tr. at 825:21-826:9.) Sullivan testified that he was not involved in the decision to transfer Plaintiff to Traffic Services, but rather that Hennessey informed him that Plaintiffs transfer was “a deal she had worked out between the deputy commissioners in those two bureaus.” (Trial Tr. at 701:6-17.) Murphy testified that he approved the transfer of Plaintiff to Traffic Services, but he did not make that decision. (Trial Tr. at 846:8-8.) Regardless of who made the decision to detail Plaintiff to Traffic Services, once he was there, Bresnahan made the decision to assign Plaintiff to the auto pound. (Trial Tr. at 1014:3-7.)

55. Bresnahan was aware of and actually signed the agreement that made accommodations for Plaintiffs medical restrictions in his Chief Timekeeper role. (Trial Tr. at 1010:8-23.) Bresnahan knew about Plaintiffs work restrictions when Plaintiff was assigned to Traffic Services. (Trial Tr. at 979:14-980:1.) Specifically, Bresnahan received from Drumgould the Mercy Works discharge sheet from February 26th indicating that Plaintiff required sedentary work and limited use of his right arm, and on which Drumgould had written that Traffic Services could accommodate Plaintiff with restrictions as of March 2nd. (Trial Tr. at 980:16-19; PL’s Ex. 89.) Bresnahan considered the restrictions when he determined that Plaintiff would be assigned to double check the receipts. (Trial Tr. at 981:3-15.)

56. On March 1, 2001, Plaintiff received a phone call requesting him to report to Room 701, the administrative offices of the Department, the following day. (Trial Tr. at 303:1-14.) Plaintiff reported to Room 701 on March 2nd and Jack Drumgould assigned him to Traffic Services. (Trial Tr. at 303:1-19.) Plaintiff then went to the administrative office of Traffic Services and told them who he was. (Trial Tr. at 304:11-14.)

57. Bresnahan did not meet Plaintiff when he began working at Traffic Services, but he testified that the Chief Auto Pound Supervisor, John Rachmaciej, along with the supervisors of the auto pound, Joe Madison and Joe Perone, did meet Plaintiff. (Trial Tr. at 982:25-983:12.) Bresna-han instructed Rachmaciej to inform Plaintiff of his duties, and Bresnahan testified that Rachmaciej did. (Trial Tr. at 983:13-18.) Plaintiff recalled seeing Rachmaciej at Traffic Services on March 2nd, but he did not recall whether he talked to Ra-chmaciej that day. (Trial Tr. at 304:22-25.) He testified that he did not discuss his duties with anyone at the Traffic Services office. (Trial Tr. at 305:3-11.)

58. Plaintiff testified that someone in a City uniform told him he was being assigned to the central auto pound, on lower Wacker Drive, and then led him there, the man in a City vehicle and Plaintiff in his car. (Trial Tr. at 305:16-306:7.) The man then led Plaintiff to a gate and told him that he would be stationed there. (Trial Tr. at 305:20-23.) The man pulled the gate open, closed it, told Plaintiff “it’s all greased up for you,” and walked away. (Trial Tr. at 306:15-25.) Plaintiff understood this to mean that his job duty was to open and close the gate. (Trial Tr. at 306:12-307:4, 311:16-25.) Plaintiff also monitored the security guard to make sure he was not stealing cars. (Trial Tr. at 334:23-335:6.) The man did not identify himself or tell Plaintiff who his supervisors were, and Plaintiff did not ask. (Trial Tr. at 306:6-11.) Plaintiff did not ask anyone for clarification or tell anyone about his work restrictions. (Trial Tr. at 307:3-8.)

59. Because of his injury, Plaintiff opened the gate with his left arm. (Trial Tr. at 310:21-25.) Plaintiff testified that he performed this duty for two weeks before his left arm “started going downhill,” and he “had to just slowly stop doing it.” (Trial Tr. at 334:17-19.)

60. During the time he was opening and closing the gate, Plaintiff frequently used sick leave because his pain upon waking required him to take strong prescription painkillers, which precluded him from driving to work for “an hour or two” until some of the effect wore off. (Trial Tr. at 215:13-216:4.) Accordingly, Plaintiff requested that his 7:00 a.m. to 3:00 p.m. shift be changed to the later shift from noon to 8:00 p.m. (Trial Tr. at 342:18-22.) On March 25, 2002, Plaintiff received a memorandum from Denise Lanton, the Acting Director of Administration, regarding his use of sick time. (Def.’s Ex. 13; Trial Tr. at 339:13-18.) The memorandum stated that Plaintiff had been “consistently tardy” and had requested to apply his sick time to the time period he was tardy. (Def.’s Ex. 13.) The memorandum stated that “Auto Pound Supervisor Jorge Vargas requested that [Plaintiff] provide him with medical documentation of [Plaintiffs] illness on the dates [Plaintiff was] tardy in order to consider whether [Plaintiffs] tardiness qualified] for sick leave,” but that Plaintiff had failed to do so and his attendance record reflected “a pattern of unexcused excessive tardiness.” (Def.’s Ex. 13.) After Plaintiff received the March 25th memorandum, his shift change request was approved and he worked the noon-to-8:00 shift until he was laid off in July 2002. (Trial Tr. at 343:3-10.)

61. Plaintiff had no supervisor, and the supervisors at the pound expressly told him that they were not his supervisors. (Trial Tr. at 307:7-23.) Bresnahan testified that when Plaintiff came to work at the auto pound in March, he had no job description; instead, his duties were verbally assigned to him, supposedly by Ra-chmaciej, when he began working in the position. (Trial Tr. at 1012:9-1013:2.)

B. Plaintiffs performance evaluations and pay raise denials

62. When an employee was entitled to a 5% pay raise that came with a step increase, his supervisor rated his performance on a salary advancement form. (Trial Tr. at 830:24-831:19.) Employees were rated as “excellent,” “good,” “fair,” or “poor.” (Trial Tr. at 831:9-11.) If an employee was rated “excellent” or “good,” he received the pay increase; if he was rated “fair” or “poor,” the increase was denied. (Trial Tr. at 831:11-14.) If employees were denied the merit pay increase, a written explanation of the reason for the denial was required. (Trial Tr. at 831:15-19.) Those forms were placed in the employee’s personnel file in the Department’s personnel division. (Trial Tr. at 831:20-832:1.)

63. As Deputy Commissioner of the BOE, Murphy did not supervise Plaintiff once he was transferred to Traffic Services, nor did he check up on Plaintiff with Bresnahan while Plaintiff was working at Traffic Services. (Trial Tr. at 861:13-19.) Nevertheless, in September 2001, when Plaintiff was detailed to Traffic Services, Drumgould sent Murphy a memorandum requesting Murphy’s input on Plaintiffs salary advancement — whether or not Plaintiff should receive a merit pay increase. (Trial Tr. at 861:20-862:11.) Murphy recommended that Plaintiffs merit pay increase be denied. (Trial Tr. at 862:19-24.)

64. On the review form, which Murphy signed on October 1, 2001, he checked the box for “unsatisfactory” rating, indicating that Plaintiffs performance was “so unacceptable that administrative action must be taken.” (Trial Tr. at 863:17-864:21.) Murphy stated that the form was asking whether Plaintiff should receive a pay increase “based upon great work in his title of Chief Timekeeper; and he was performing no work in the title of Chief Timekeeper, so I couldn’t give him a merit raise. I just didn’t feel that was right.” (Trial Tr. at 864:24-865:3.) Murphy testified that when he evaluated his employees, he based it upon their current ability to perform their job duties, and Plaintiff was not performing the Chief Timekeeper job duties. (Trial Tr. at 866:16-22.) Murphy stated: “[Plaintiff] had said that he couldn’t do those functions, so I don’t know whether he had the ability or not; but I know he wasn’t performing those functions.” (Trial Tr. at 867:25-868:2.) Murphy testified that he thought “it would be unacceptable to give him more money for a job that he was not performing.” (Trial Tr. at 868:24-869:1.)

65. Murphy testified that the “administrative action” the form refers to usually meant increased training or counseling to figure out why an employee was not performing at a “good” or “excellent” level and help him increase his proficiency. (Trial Tr. at 869:12-24.) Murphy did not talk to Plaintiff about his job performance or attempt to determine whether he needed additional training to do his job as Chief Timekeeper because Plaintiff was no longer working for the BOE. (Trial Tr. at 869:25-870:4.)

66. When a deputy commissioner gives an employee an “unsatisfactory” rating, he is asked to explain the reason. (Trial Tr. at 870:15-18.) Murphy wrote a memorandum explaining that since his appointment to the BOE in August 2000, Plaintiff had been of no value. (Trial Tr. at 872:11-19.) Murphy also stated: “[Plaintiff] cannot perform the functions of his title and has complained when given any other menial task to complete,” which he clarified meant answering the phones. (Trial Tr. at 875:23-876:6.) Murphy then stated that Plaintiff had been detailed to another bureau to try to accommodate him and that the BOE had not needed to replace him. (Trial Tr. at 876:7-14.) Murphy sent his memorandum to A1 Sanchez, the Commissioner of the Department; Sullivan, the Managing Deputy Commissioner of the Department; Jack Kenney, the Deputy Commissioner of Administrative Services; and Hennessey, the Department’s legal counsel. (Trial Tr. at 870:15-871:6.) He sent the rating only to Drumgould. (Trial Tr. at 871:15-21.) Murphy did not send the rating to Plaintiff because Plaintiff was no longer working for Murphy, nor did he send it to Bresnahan, Plaintiff’s current supervisor. (Trial Tr. at 871:19-10.)

67. On December 20, 2001, Drumgould sent Bresnahan a memorandum informing him that Plaintiff was eligible for a merit pay increase on January 1, 2002, and requesting a rating of Plaintiffs performance as to whether Plaintiff deserved the increase. (Trial Tr. at 992:1-6; Def.’s Ex. 9.)

68. Bresnahan did not personally supervise Plaintiffs work. (Trial Tr. at 987:14-16.) As the Deputy Commissioner, however, Bresnahan made the final decision as to whether to award merit pay increases to employees in Traffic Services. (Trial Tr. at 989:9-13.) He based those decisions on recommendations by employees’ supervisors, who had day-to-day contact with the employees. (Trial Tr. at 989:14-15, 994:1-9.)

69. On December 26, 2001, Rachmaciej, the Chief Auto Pound Supervisor, sent Bresnahan a memorandum about Plaintiffs salary advancement. (Trial Tr. at 990:25-991:7; Def.’s Ex. 8.) The memorandum recommended a rating of “marginal” for Plaintiffs performance of his duties and stated that he performed his duties “below an acceptable level do [sic] to excessive absenteeism.” (Trial Tr. at 990:4-7; Def.’s Ex. 8.) The memorandum concluded by recommending that Plaintiffs “salary advancement increase should be denied until his work attendance improves.” (Def.’s Ex. 8.)

70. On December 28, 2001, Bresnahan returned Drumgould’s December 20th memorandum indicating a “marginal” rating for Plaintiff, which resulted in the denial of Plaintiffs merit pay increase. (Trial Tr. at 993:16-25; Def.’s Ex. 9.) Bresnahan testified that he assumed the evaluation was intended to cover the time period from March 2001, when Plaintiff started working at Traffic Services, until the current date. (Trial Tr. at 993:8-15.) Bresnahan relied on Rachmaciej’s December 26th memorandum when evaluating Plaintiff. (Trial Tr. at 994:11-14.)

71. When an individual was denied a merit pay increase, he was given another opportunity, approximately two months later, to receive the increase if he had improved upon the deficiency that prevented him from receiving it in the first place. (Trial Tr. at 995:16-996:1.)

72. On February 22, 2002, Bresnahan received another memorandum from Drumgould informing him that Plaintiff was eligible for a merit pay increase and requesting his rating. (Trial Tr. at 1006:14-22; Def.’s Ex. 10.)

73. Annette Phillips was an assistant general superintendent in Traffic Services. (Trial Tr. at 996:2^1.) Her responsibilities involved overseeing the administrative functions of the auto pound. (Trial Tr. at 997:11-16.) On February 25, 2002, she sent Bresnahan a memorandum about Plaintiffs salary advancement. (Trial Tr. at 1005:17-20; Def.’s Ex. 11.) It stated: “At this time a merit increase is not acceptable for [Plaintiff]. [Plaintiff] is assigned to the exit gate at Central Auto Pound for (4) four hours a day. [Plaintiff] has an attendance problem which needs improving.” (Def.’s Ex. 11.)

74. On February 23, 2002, Bresnahan returned Drumgould’s February 22nd memorandum, again indicating a “marginal” rating for Plaintiff. (Trial Tr. at 1007:9-14; Def.’s Ex. 10.) Bresnahan testified that he relied on Phillips’s February 25th memorandum when evaluating Plaintiff. (Trial Tr. at 1006:23-25.)

75. On May 3, 2002, Bresnahan received another memorandum from Drum-gould informing him that Plaintiff was eligible for a merit pay increase and requesting his rating. (Trial Tr. at 998:14-22; Def.’s Ex. 14.)

76. On May 6, 2002, Phillips sent Bres-nahan a memorandum about Plaintiffs salary advancement. (Trial Tr. at 996:7-11; Def.’s Ex. 15.) It stated: “[Plaintiff] still has not improved on his attendance, which is four (4) hours a day watching the gate at Central Auto pound, [sic] Based on these factor [sic] it is my recommendation that [Plaintiff] should not be given a increase [sic] in salary at this time.. [sic]” (Def.’s Ex. 15.) From her memorandum, Bresna-han understood that Phillips was recommending that Plaintiff be denied a raise because of his attendance. (Trial Tr. at 996:25-997:5.)

77. On May 6, 2002, Bresnahan returned the memorandum to Drumgould indicating a rating of “unsatisfactory,” the lowest possible rating, for Plaintiff. (Trial Tr. at 999:3-11; Def.’s Ex. 14.) The reason Bresnahan gave Plaintiff an “unsatisfactory” ranking was because Plaintiff was given an opportunity to improve on his attendance issue and failed to do so. (Trial Tr. at 999:9-18.) Bresnahan relied on Phillips’s memorandum to rate Plaintiffs performance. (Trial Tr. at 999:19-22.)

78. None of these merit pay increase denials or negative performance evaluations were sent to Plaintiff. (Trial Tr. at 1025:6-8.) Plaintiff was assigned to Traffic Services from March 2, 2001, until July 2002, when his position was eliminated in the Reduction in Force, and he did not receive any written performance evaluations during that time. (Trial Tr. at 987:6-13, 988:2-5.)

79. Bresnahan never had any discussions with Plaintiff about his attendance problems. (Trial Tr. at 1003:1-3.) Bres-nahan did not know how frequently Plaintiff was absent, just that it was “enough to bring it to the attention of his supervisors.” (Trial Tr. at 1024:18-25.) Plaintiff never approached Bresnahan to complain about any issues he was having at Traffic Services. (Trial Tr. at 1003:4-7.)

C. Defendant’s denial of treatment and of liability for Plaintiffs injury

80. On February 15, 2001, Mark Schechter from the City’s Law Department wrote a memorandum to Serafín regarding Plaintiffs workers’ compensation claim (the “Schechter Memo”). (Trial Tr. at 765:13-23; Pl.’s Ex. 55.) It went into the Committee on Finance’s workers’ compensation file for Plaintiff. (Trial Tr. at 766:2-4.) The top of the Schechter Memo has handwriting next to the header. (Pl.’s Ex. 55; Trial Tr. at 767:25-768:2.) The handwriting appears to say “Phony.” (Pl.’s Ex. 55.) Serafín testified that he did not write “phony” on the Memo and he did not know who did. (Trial Tr. at 768:12-23.) Murphy testified that he did not write “phony” on the Schechter Memo. (Trial Tr. at 850:6-8.) No viable explanation was offered by the Defendant as to how the word “phony” was written on Plaintiffs Exhibit 55. The Court concludes that Plaintiffs Exhibit 55 strongly supports the jury’s actual and advisory verdicts in this case.

81. The Schechter Memo attached Plaintiffs medical records and stated: “Dr. Arnold indicated that [Plaintiff] is off duty due to a work-related condition.” (PL’s Ex. 55.) The Memo further stated that Plaintiffs “attorney stated that [Plaintiffs] job duties recently changed, requiring repetitive use of his right hand, causing pain and swelling.” (Pl.’s Ex. 55.) The Schechter Memo also instructed Ser-afín to have Dr. Arnold reevaluate Plaintiff to see if he could perform phone answering duties with his left hand and consider whether the nerve block injections that Dr. Gonzales recommended on September 7, 2000, were appropriate. (Pl.’s Ex. 55; Trial Tr. at 774:25-775:9.) Finally, the Schechter Memo recommends that Plaintiff be placed on temporary disability from February 5th until Dr. Arnold released him to return to work. (PL’s Ex. 55; Trial Tr. at 776:4-12.)

82. The Schechter Memo was faxed to the BOE on March 2, 2001. (Trial Tr. at 777:17-779:9, 857:3-7; PL’s Ex. 56.) Ser-afín testified that he did not fax the Schechter Memo to the BOE and he did not know who did. (Trial Tr. at 779:11-15.)

83. On March 9, 2001, Drumgould sent a memorandum to Serafín stating that “as of Friday, March 2, 2001, [Plaintiff] has been accommodated within his restrictions and returned to work. [Plaintiff] has been assigned to the Bureau of Traffic Services.” (PL’s Ex. 84.) Thus, Plaintiff was detailed to Traffic Services the same day the Schechter Memo was faxed to the BOE. (Trial Tr. at 859:6-20; PL’s Ex. 56; PL’s Ex. 84.)

84. Dr. Gonzales saw Plaintiff on March 15, 2001. (Trial Tr. at 134:20-135:8.) On March 15, 2001, Dr. Gonzales wrote another letter that he sent to the Committee on Finance and to Dr. Arnold. (Trial Tr. at 134:5-13.) The letter reiterated that Plaintiffs cervical radiculopathy was work-related and that Mercy Works (acting on behalf of the City) had recommended that he perform sedentary work with limited use of his right arm. (Trial Tr. at 134:22-135:1; PL’s Ex. 24.) The letter then stated: “His present work requires him to open & close the large gate at the police pound. This is significantly exacerbating his cervical radiculopathy and causing it to spread to his left upper limb. I strongly disagree with his present work duties.” (PL’s Ex. 24.) Dr. Gonzales testified that “the delay in treatment and the lack of appropriate treatment was making his condition worse.” (Trial Tr. at 136:15-16.) Dr. Gonzales never received a response from the Committee on Finance. (Trial Tr. at 138:18-23.)

85. Dr. Gonzales told Plaintiff not to open and close the gate on March 15th, but Plaintiff continued to do so, which exacerbated his arm injury. (Trial Tr. at 336:19-337:5.)

86. On April 3, 2001, Dr. Gonzales sent another letter to the Committee on Finance. (Trial Tr. at 138:8-12.) It stated that Plaintiff was “getting worse as a result of ongoing aggravation of his work related cervical radiculopathy. Due to his deterioration I am recommending that he cease working at this time. He is to be reevaluated in two weeks.” (PL’s Ex. 25.) Dr. Gonzales never received a response from the Committee on Finance. (Trial Tr. at 138:18-23.)

87. At some point, it came to Bresna-han’s attention that Plaintiff was opening and closing the gate, and he told Rachma-ciej “to put it in writing that [Plaintiff] was not to open and close the gate, that that was the security guard’s job.” (Trial Tr. at 984:2-8.) Bresnahan testified that, to the best of his knowledge, none of his supervising staff instructed any of the employees that Plaintiff was to open and close the gate. (Trial Tr. at 984:21-24.) On April 24, 2001, at Bresnahan’s direction, Rachmaciej wrote a memorandum to Plaintiff informing him of his job assignment. (Trial Tr. at 985:7-20; Def.’s Ex. 6.)

88. On April 24, 2001, Plaintiff received a memorandum from Rachmaciej clarifying his job assignment. (Trial Tr. at 335:12-18; Def.’s Ex. 6.) The memorandum instructs Plaintiff that his job duties include:

To verify the vehicle identification number and or plates number of vehicles leaving the auto pound. 2) To help direct customers into the release trailer or to their vehicle after payment has been made[. ]As you were previously instructed Under [sic] no circumstances are you to open or close the gate.

(Def.’s Ex. 6.) Plaintiff acknowledged in writing that he received the memorandum on April 24th and additionally wrote, “I was told not to open gate on or about March 15, 2001.” (Id.; Trial Tr. at 985:24-986:1.) Plaintiff continued his detail at the auto pound and performed the duties outlined in the April 24th memorandum until he was laid off. (Trial Tr. at 337:13-20.)

89. Additionally on April 24th, Bresna-han wrote a memorandum to Serafín about Plaintiffs duties. (Trial Tr. at 1015:24-1; Def.’s Ex. 7.) The memorandum says:

Be advised that [Plaintiff] was specifically instructed not to open and close the gate at Central Auto Pound. [Plaintiff] is to check the paper work that the guard checks to insure the proper vehicle is leaving the auto pound. NO city employee is to open or close the gate. On several occasions in the past week I was at Central Auto Pound and observed the security guard open and close the gate. [Plaintiff] did not touch the gate and is never suppose [sic] to touch the gate.

(Def.’s Ex. 7.) Bresnahan testified that he sent the memorandum as a result of someone, he could not remember who, asking him to make sure that Plaintiff was acting within his job restrictions. (Trial Tr. at 1017:15-20.)

90. On May 14, 2001, Dr. Gonzales wrote another letter stating that Plaintiff was still under his care “for treatment of his work-related injury” and outlining the treatments he needed. (Trial Tr. at 141:15-24; Pl.’s Ex. 26.) This note was stamped as received by Traffic Services on May 18, 2001. (Trial Tr. at 1022:12-22, 1023:8-19; Pl.’s Ex. 91.) Accordingly, someone in Traffic Services was aware on May 18th that Plaintiff was under the care of a doctor for a work-related injury. (Trial Tr. at 1023:21-1024:4.) Dr. Gonzales never received a response from the Committee on Finance. (Trial Tr. at 138:18-23.)

91. On August 1, 2001, Dr. Gonzales sent a note to the Committee on Finance and Dr. Arnold stating that Plaintiff remained in Dr. Gonzales’s care and needed physical therapy. (Trial Tr. at 143:2-10; Pl.’s Ex. 27.) Dr. Gonzales never received a response from the Committee on Finance. (Trial Tr. at 138:18-23.)

92. On February 20, 2002, Dr. Gonzales sent a note to the Committee on Finance stating that Plaintiff had to miss a half a day of work due to the severity of his pain from his radiculopathy and the sedating effects of the pain medication Dr. Gonzales had prescribed. (Trial Tr. at 143:21-144:5; Pl.’s Ex. 28.) Dr. Gonzales also sent to the Committee on Finance an order for physical therapy for Plaintiffs radiculopathy, three times a week for four weeks. (Trial Tr. at 144:11-23; Pl.’s Ex. 29.) Dr. Gonzales never received a response from the Committee on Finance. (Trial Tr. at 138:18-23.)

93. On July 17, 2002, Plaintiff had a visit at Dr. Gonzales’s office. (Trial Tr. at 145:16-17.) Dr. Gonzales testified that Plaintiff’s condition was worsening because he was not receiving needed medical care. (Trial Tr. at 147:14-19.) Dr. Gonzales noted that Plaintiff continued to experience weakness and severe pain in his right arm, which were made worse by activity. (PL’s Ex. 30.) Dr. Gonzales noted additional atrophy, discoloration, and swelling of his right arm and hand. (Id.) Dr. Gonzales indicated that the City had “refused to authorize payment for [Plaintiff’s] medical care related to his work injury” and that Plaintiff would contact him when there was “some indication that his employer [will] pay for treatment.” (PL’s Ex. 30.)

94. On July 17, 2002, Dr. Gonzales sent another note to the Committee on Finance verifying that Plaintiff was still under his care and still needed medical treatment. (Trial Tr. at 148:17-24; PL’s Ex. 31.) He sent a similar note on November 22, 2002. (Trial Tr. at 154:20-155:3; PL’s Ex. 47.) Dr. Gonzales never received a response from the Committee on Finance. (Trial Tr. at 138:18-23.)

95. On September 4, 2002, Dr. Gonzales found that Plaintiff’s condition was worsening. (Trial Tr. at 152:22-24.) That prompted him to write a detailed summary of Plaintiffs condition and the treatment and diagnostic testing he needed. (Tri