Citations
- 303 F. Supp. 3d 690
Full opinion text
Chief Judge Rubén Castillo, United States District Court
Janice Keen ("Plaintiff") brings this 37-count employment discrimination lawsuit alleging that Teva Sales and Marketing, Inc. and Teva Pharmaceuticals USA, Inc. (collectively, "Teva" or "Defendants") discriminated and retaliated against her because of her disability and gender in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , the Illinois Human Rights Act ("IHRA"), 775 ILL. COMP. STAT. 5/1-101 et seq. , and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (16-cv-9964, R. 26, Am. Compl. at 1-172. ) Plaintiff also brings claims under the Illinois Whistleblower Act ("IWA"), 740 ILL. COMP. STAT. 174/1 et seq. , and a claim for retaliatory discharge under Illinois law. (Id. ) Defendants move for summary judgment on all of Plaintiff's claims. (14-cv-9626, R. 81, Mot. for Summ. J. at 1; 16-cv-9964, R. 30, Suppl. Mot. for Summ. J. at 3.) Plaintiff opposes the motion, and moves to strike Defendants' reply brief and sanction Defendants for raising arguments in their reply that were not raised in their motion for summary judgment. (Id. , R. 47, Mot. to Strike.) For the reasons set forth below, Defendants' motion for summary judgment is granted, and Plaintiff's motion to strike and for sanctions is denied.
RELEVANT FACTS
This suit implicates facts and numerous discrete incidents that occurred over several years during Plaintiff's employment. The Court, therefore, only summarizes those facts that are material to Plaintiff's claims. The following facts are undisputed unless otherwise stated.
I. The Parties and Plaintiff's Supervisors
Defendants are Delaware corporations and pharmaceutical companies. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' Statement of Material Facts [hereinafter "SOMF"] ¶ 1; 16-cv-9964, R. 28, Answer to Am. Compl. at 2.) In June 2005, Keen was hired as a sales specialist by Cephalon, a pharmaceutical company later acquired by Teva. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 3.) As a sales specialist, she was responsible for selling pharmaceuticals in the Chicago area. (Id. ) The physical requirements of her job included daily driving, getting in and out of her car, carrying promotional materials, climbing and descending stairs, and walking to and from physicians' offices. (16-cv-9964, R. 28, Answer to Am. Compl. at 3.)
Prior to Teva's acquisition of Cephalon in October 2011, Plaintiff reported to Katherine Stanek. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 3.) Shortly after the acquisition, Plaintiff began reporting to Scott Bischoff, Teva's Chicago regional sales manager. (Id. ¶ 4.) Sometime in 2013, Mike Rothweiler replaced Bischoff as the regional sales manager, and Plaintiff then began reporting to him. (Id. ) Stanek, Bischoff, and Rothweiler all reported to Matthew Muller, who was a director of sales at Cephalon and later the director of sales for Teva's "central nervous division" following Teva's acquisition of Cephalon. (Id. ¶ 5.)
II. Plaintiff's Leaves of Absence in 2010-2012
In November 2010, Plaintiff was involved in an automobile accident while she was working and injured her neck and shoulder as a result. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 34, 37.) After the accident, she took a leave of absence for approximately five months and returned to work either "at the end of April or early May" in 2011. (Id. at 40-41.) Shortly after the accident, Plaintiff filed a claim with the Illinois Workers' Compensation Commission ("IWCC") related to the accident. (16-cv-9964, R. 41-2 at 86, Workers' Comp. Claims.) In November 2011, Plaintiff underwent surgery to repair a torn rotator cuff, and she took a one month leave of absence following her surgery. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 11.)
The following year, Plaintiff underwent spinal surgery to repair injuries she suffered in the November 2010 car accident and took another leave of absence. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 51-53.) Her leave began in June 2012 and lasted for twelve weeks, at which time Plaintiff exhausted her leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. (Id. at 52-53.) Just a few months after she returned, Plaintiff discovered that her spinal surgery had failed and that she would need another surgery. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 16.) On December 12, 2012, Plaintiff met with Teva's director of human resources, Rob Bobrowski, and explained to him that "she was going to be off work for an extended period of time because of her disability of degenerative cervical disc disease" and surgery she had scheduled. (Id. , R. 89, Defs.' Resp. to Pl.'s Statement of Additional Material Facts [hereinafter "SOAMF"] ¶ 22.) Later in December 2012, Plaintiff underwent a second spinal surgery which led to an extended leave of absence from Teva. (Id. ¶¶ 5, 11, 22.)
III. Plaintiff's Leave and Return to Work in 2013
While Plaintiff was still on leave, Plaintiff's physician, Dr. Gary Shapiro, wrote a letter to Defendants on May 8, 2013, informing them that Plaintiff was scheduled for another spinal surgery on May 17, 2013, and that she was to refrain from work until the surgery. (Id. , R. 81-12 at 16, May 8, 2013, Shapiro Letter.) Dr. Shapiro also informed Defendants that Plaintiff would need two to six weeks to recover. (Id. ) Plaintiff's surgery, however, was cancelled. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 9.) Soon after, on May 23, 2013, Bobrowski wrote a letter to Plaintiff, which stated:
As you know, you have been out of the workplace and field since December 21, 2012. In addition, this time has not been approved under Teva's Family Medical Leave Policy and Teva's Short Term/Long Term disability plans. Thus, your time is currently categorized as personal, unpaid, non-FML leave. Also, since that time, Teva has provided you with full benefits and use of a company car.
For approximately five (5) months, the Company has accommodated your requested leave and kept your position vacant pending your return. We ask that you notify us no later than May 31, 2013 as to your work status. Please have your physician review your job description and complete the Physical Capabilities Checklist (attached), confirming if you are fit for duty and identifying any restrictions or accommodations necessary and, indicating if/when you will be able to return to work....
If you are unable to return to work on or around June 3, 2013, and perform the essential function of your job, with or without accommodation, you will be administratively laid off from your employment. However, if you are laid off, you are invited to contact us when you are able to return to work to discuss any available positions for which you may be qualified[.]
(Id. , R. 81-12 at 18, May 23, 2013, Bobrowski Letter.)
In response, on May 29, 2013, Plaintiff faxed a letter to Teva's nurse care manager, Donna Montagna, representing that her physician had released her to return to work on June 3, 2013. (Id. , R. 81-12 at 20, May 29, 2013, Keen Letter.) Attached to the fax was the Physical Capabilities Checklist (the "Checklist") that Teva had enclosed with Bobrowski's May 23 letter, which was completed and signed by Dr. Shapiro. (Id. ) The Checklist detailed Plaintiff's physical capabilities and limitations, indicating that she could: (1) lift, carry, push, and pull up to 10 pounds; (2) sit continuously; (3) stand, walk, and drive frequently; and (4) bend, squat, reach above her shoulder, and kneel occasionally. (Id. )
Despite Plaintiff's letter enclosing the Checklist, Montagna instructed Plaintiff to not return to work on June 3, 2013. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 10.) Montagna told Plaintiff that she was not cleared to return to work because "someone in HR thinks you need surgery." (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 74.) Specifically, Plaintiff understood that someone in Teva's human resources department told Montagna that Plaintiff could not return to work until she underwent the surgery that was previously scheduled for May 17, 2013, but had been cancelled. (Id. at 74-76.) Shortly thereafter, on June 5, Plaintiff called Defendants' compliance hotline and claimed that Defendants discriminated against her on the basis of her disability. (16-cv-9964, R. 28, Answer to Am. Compl. at 5.)
Defendants denied Plaintiff's return in early June because they had reviewed the Checklist and concluded that there was a lack of clarity and agreement as to Plaintiff's work-related restrictions and necessary accommodations. (14-cv-9626, R. 86-8, Bobrowski Oct. 19 Dep. Tr. at 103-09.) Plaintiff's surgery that was originally scheduled for May 17, 2013, but later cancelled, eventually took place in July 2013. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 10.) Following the surgery, on August 22, 2013, Plaintiff faxed another Checklist to Teva. (See id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 23.) Teva advised her that, because she had been absent from work for over six months, she needed to complete a "return-to-work" examination. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 78.)
On August 27, 2013, Plaintiff completed that examination. (Id. at 78-79, 85.) Following this examination, Montagna called Plaintiff and told her that there was "a problem" with the results and therefore she requested that Plaintiff undergo a second examination. (Id. at 86-87.) Specifically, Plaintiff was informed that she had to undergo a second test because the first test found that her neck was normal, but Defendants believed that the test failed to indicate that she had a "scar or something to that effect" on her neck. (Id. ) In response, Plaintiff refused to complete a second examination and, shortly thereafter, Plaintiff's then-counsel requested information from Teva as to why a second examination was necessary. (Id. at 86-88.) Even though Plaintiff did not retake the examination, on September 11, 2013, Montagna called Plaintiff and informed her that she could return to work the following day. (Id. at 88.) Plaintiff returned to work on September 12, 2013, and her only work restriction was that she could not lift more than twenty pounds. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 11; id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 80.)
IV. Plaintiff's Request to Attend a Training Workshop
In early 2014, Plaintiff signed up for a training workshop in Pennsylvania scheduled for February 2014. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 55-56.) Plaintiff, however, was not approved to attend this workshop because Defendants wanted their sales representatives to focus on having a strong start to their year, and Defendants recommended that Plaintiff wait until later in the year to attend a workshop. (Id. at 56-57.) Another woman on Plaintiff's team, Jonnie Blake, was not approved to go to the workshop either, but Plaintiff knew of three men who were approved. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 57-58.) The same number of men and women from Teva, however, attended the Pennsylvania workshop. (Id. , R. 81-6, Bobrowski Aff. ¶ 8.)
V. The Senior Executive Sales Specialist Position
While Plaintiff was on leave in 2013 she was notified that her job title had changed from "Territory Sales Specialist" to "Executive Sales Specialist." (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 89-90.) While at Cephalon, Plaintiff's job title was Territory Sales Specialist, and all sales representatives at Cephalon had that same title. (Id. at 89.) After Teva acquired Cephalon, Teva undertook a project to rename Cephalon's job titles to those more consistent with job titles used at Teva. (Id. , R. 86-9, Bobrowski Jan. 28 Dep. Tr. at 14-15.) This process involved a review of each sales representative's experience and performance over time to decide how each sales representative's job title would be renamed. (Id. at 14-20.) Plaintiff believes that although she met the qualifications for a "Senior Executive Sales Specialist" ("SESS"), she was instead designated as an Executive Sales Specialist. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 90-91.)
As part of its process to re-categorize each sales representative, Teva established a committee (the "Committee") that included, among other directors of Teva's sales divisions, Muller, director of the sales division for which plaintiff worked. (Id. , R. 86-10, Muller Dep. Tr. at 58.) Sales directors, like Muller, would have a discussion with lower-level managers to determine the recommended job title for each employee within that sales director's division. (Id. at 58-59.) Sales directors would then present those recommendations to the Committee for its review. (Id. at 59.) The Committee then considered each employee's sales performance and other factors, and attempted to evaluate each employee in a uniform manner. (Id. at 60-63.) Afterwards, Teva's sales directors voted to approve each employee's job title. (Id. at 61.)
Within Muller's division, Muller reviewed an evaluation generated by each employee's immediate supervisor that described the employee's characteristics outside of his or her sales performance, such as the employee's leadership and mentorship qualities. (Id. at 64.) In Plaintiff's case, her direct supervisor, Bischoff, completed her evaluation that Muller reviewed in order to determine-together with the other sales directors-her job title. (Id. at 64-65.)
The Committee could assign one of five positions to each sales representative: (1) Sales Specialist, (2) Professional Sales Specialist, (3) Senior Sales Specialist, (4) Executive Sales Specialist, and (5) SESS. (Id. , R. 81-12 at 11-14, Promotional Guidelines.) The qualifications for SESS were:
1. a rating of "meets" or better for two of the last three years, which is a rating indicating that the employee met his or her responsibilities in a given year;
2. a rating of "exceeds" or better for at least one of the last two years, which is a rating indicating that the employee "exceeded" his or her responsibilities in a given year;
3. finishing within the top 30% of Teva's sales representatives in one of the last three years and within the top 50% of Teva's sales representatives in the other two years;
4. working a minimum of three years as a Teva Executive Sales Specialist;
5. more than eleven years of experience working in pharmaceutical sales; and 6. being a "leader," "mentor," and "role model."
(Id. , R. 81-12 at 11-14, Promotional Guidelines.)
Plaintiff met the objective qualifications for the SESS position such as sales numbers and years of experience. (See id. ; see also id. , R. 86-1, Pl.'s SOAMF ¶ 29.) Additionally, Teva's internal evaluation of Plaintiff as part of the Committee's review process shows that she was recommended for the SESS position. (Id. , R. 81-10 at 20, Eligibility Criteria Worksheet; see also id. , R. 81-10, Muller Dep. Tr. at 53-54.) Despite this recommendation, Plaintiff was ultimately designated as an Executive Sales Specialist. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 90-91.)
Multiple Teva employees testified that Plaintiff did not receive the SESS position because she was not considered a role model or leader. For example, Plaintiff's supervisor prior to 2011, Stanek, testified that Plaintiff "always did well on the sales performance," but it was "well-documented" that "she was not executing against behaviors that the company held as standards." (Id. , R. 86-16, Stanek Dep. Tr. at 29-30.) During the employee reclassification process, Muller asked Bischoff about examples of Plaintiff being a leader, mentor, or role model, and Bischoff "did not have any examples to speak to." (Id. , R. 86-12, Bischoff Dep. Tr. at 23.) Instead, Bischoff spoke to Plaintiff's "lack of leadership, her lack of mentorship, her lack of initiative, her lack of role modeling, lack of collaboration, and her lack of followership." (Id. ) Bischoff also gave Muller examples to support his observations about Plaintiff. (Id. at 23-24.)
While largely positive, some of Plaintiff's written reviews included similar criticisms. Plaintiff's 2010 Cephalon review lauded her for her sales numbers, clinical and product knowledge, customer knowledge, and stated that Plaintiff's "leadership and ability to adapt to a changed environment is appreciated by her manager." (Id. , R. 86-16 at 53-56, 2010 Performance Summ.) The review, however, also stated that Plaintiff did not meet expectations regarding targeting customers with the greatest sales potential and that her "failure to show improvement planning and organizing over the past 9 month[s] speaks to an unwillingness to adopt and implement change when she does not agree with corporate goals and strategies." (Id. at 55.)
Plaintiff's 2011 Abbreviated Performance Summary was almost entirely positive, noting that she was on pace to exceed her sales quota, she had earned a "President's Club rank," and her knowledge of the product was "superior." (Id. , R. 86-16 at 57-58, Abbreviated Performance Summ.) The review did note that she was on a medical leave for some of 2011, but "[w]hile in territory she did not meet expressed call expectations." (Id. ) Specifically, it stated that Plaintiff "was consistently behind the Nation, Region and team call averages throughout each evaluation period." (Id. ) Despite this critique, the summary concluded that Plaintiff was "consistently a top performer[ ] in the organization[.]" (Id. )
On October 31, 2013, Plaintiff met with Muller and Rothweiler to discuss her 2012 performance review and the reasons why she was not selected for the SESS position. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 35.) The results of Plaintiff's 2012 Mid-Year Performance Review-which was completed by Rothweiler's predecessor, Bischoff-were distinctly lower than prior years. (Id. , R. 81-7 at 60-65, 2012 Mid-Year Performance Review.) The review had performance categories of: "Below," "Mostly Meets," "Meets," "Exceeds," and "Exceptional." (Id. ) Plaintiff did not receive any "Exceeds" or "Exceptional" in any individual category and her overall evaluation was "Mostly Meets." (Id. at 60-64.) In a section assessing Plaintiff's "Strengths and Needs," Bischoff did not list any "Strengths." (Id. at 64.) As to Plaintiff's "Needs," Bischoff wrote that Plaintiff: "needs to improve her time and territory management" because "her calls per day are among the lowest in the area;" "should increase her overall activity in line with area and regional averages;" "should be more proactive in completing administrative requirements" including "expense reports;" and "could benefit from increased resource utilization." (Id. )
At the meeting with Muller and Rothweiler on October 31, 2013, Muller informed Plaintiff that although she met all of the objective criteria to qualify for the SESS position, she was not sufficiently a leader, mentor, or role model to merit the SESS position. (Id. at 109; id. , R. 86-10, Muller Dep. Tr. at 109-10.) To refute this, Plaintiff points out that in September 2011, Stanek emailed Muller, Reilly, and Plaintiff comparing her to Lou Holtz, a former coach of the University of Notre Dame's football team, and wrote: "Over the past several years you've been our Lou Holt[z], an inspiration to so many at Cephalon including myself, and we are so proud of you! Like him, you are in a league of your own!" (Id. , R. 86-16 at 59-62, Stanek Sept. 9, 2011, Email.)
Plaintiff asserts that the actual reason behind Teva's decision not to promote her to the SESS position was because of her disability and gender. To support these allegations, Plaintiff points to a number of facts. Plaintiff testified that Muller told her that she had not actively participated in meetings and that she had missed meetings. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 109, 115.) Plaintiff also notes that on November 14, 2012, she emailed Bischoff about her performance reviews, stating that her "challenge" at work "is obvious with [her] medical leave and ... need for accommodations[.]" (Id. , R. 86-12 at 16, Bischoff Nov. 14, 2012, Email.) In response, Bischoff wrote:
Your medical limitations and leave of absence have had a significant impact on your ability to perform this year at a high level but that shouldn't detract you from returning to President's club in 2013! I think next year you will be in a much better position to succeed while documenting competencies along the way. I am confident you will return to a top performing sales executive.
(Id. )
Plaintiff also claims that there were "many men, with no disability, without the qualifications" that were promoted to the SESS position. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF at 10.) In support, Plaintiff identifies six men who "did not have all [of] the required qualifications ... but were nonetheless promoted to the position, without any interview." (Id. ¶ 24.) No individual directly reporting to Bischoff, however, "was qualified for the SESS position." (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 34.)
VI. Plaintiff's 2013 Bonus and Salary
Plaintiff's 2013 bonus payments were approximately $12,000 less than what she was expecting. (Id. , R. 86-7, Keen May 24 Aff. ¶¶ 7-9.) Plaintiff asked Rothweiler why her bonus had been reduced in 2013, and Rothweiler told her that the bonus was reduced because she was out of her territory for most of the year. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 10-11.) Plaintiff, however, also testified that her bonus was reduced because Teva prohibited her from returning to work in June 2013 and did not allow her to return until September 2013. (Id. at 11.)
Bonuses at Teva are calculated "based on performance measured by sales of the representative's territory" and are paid every three months. (Id. , R. 89, Defs.' Resp.
to Pl.'s SOAMF ¶ 29.) Teva's 2013 Annual Incentive Plan states in relevant part, "[l]eaves of absence will impact incentive eligibility in proportion to the length of the leave, with the exception of an approved leave that qualifies under FMLA, the Parental Leave Policy and/or the Military Leave Policy." (Id. , R. 81-6 at 10, Annual Incentive Plan.)
VII. Plaintiff's Leave in 2014 and Performance Following Her Return to Work
In January 2014, Plaintiff reinjured her shoulder while attempting to refill her car's windshield wiper fluid. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 12-17.) Following her injury, Plaintiff continued to work from January 29, 2014, until March 12, 2014. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 44.) Plaintiff filed a workers' compensation claim with the IWCC for this injury. (16-cv-9964, R. 41-2 at 85, Workers' Comp. Claims.) Plaintiff did not go on medical leave immediately following the injury because she "had not yet qualified for family medical leave," and "needed job-protected leave[.]" (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 44.) Plaintiff eventually went on FMLA leave, and while on leave, Plaintiff had another surgery on her spine in March 2014 and a surgery to repair her rotator cuff on May 15, 2014. (Id. ¶¶ 45-46.) On June 2, 2014-the day before Plaintiff's FMLA leave was set to expire-Plaintiff sent an email requesting two additional months of leave as an ADA accommodation. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 23-27.) Defendants agreed to the extension, and Plaintiff returned to work on August 7, 2014. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶¶ 46-47; see also id. , R. 81-11 at 54, Bobrowski June 10, 2014, Letter.) Teva's letter extending Plaintiff's leave, however, stated that her territory was "not being managed by an active sales representative" because of Plaintiff's "extended absences," and also stated that "any requests for additional extended leaves will be closely scrutinized as Teva must have an active representative within [Plaintiff's] territory[.]" (Id. , R. 81-11 at 54, Bobrowski June 10, 2014, Letter.)
Upon Plaintiff's return to work in August 2014, Rothweiler remained Plaintiff's supervisor, (id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 23), and the two met to discuss her performance expectations for the rest of the year, (id. , R. 81-14, Rothweiler Aff. ¶ 2). As part of these expectations, Plaintiff was provided a "call list," which "assigned a certain number of [sales] calls over the course of the year[.]" (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 48.) Included in this call list were physicians in Plaintiff's Indiana territory that were identified as "high decile prescribes," or those doctors that could be encouraged to prescribe more Teva products. (Id. ) Plaintiff claims that the list that Rothweiler created for her was misguided because many of the targets were "retired" or not in her territory, and the suggested call volume did not account for the time she was on medical leave. (Id. at 49; see also id. , R. 86-7, Keen May 24 Aff. ¶ 31.) Following the meeting, Plaintiff also "repeatedly complained to ... Rothweiler regarding unusual challenges related to [her] leave that affected [her] ability to do [her] job," such as the "inability to access corporate websites," "inconsistencies with data," "problems accessing a case manager," issues with her medical care, and "issues concerning [her] corporate" credit card. (Id. , R. 86-7, Keen May 24 Aff. ¶ 30.)
In November 2014, Rothweiler accompanied Plaintiff on a two-day field visit. (Id. , R. 81-14, Rothweiler Aff. ¶¶ 3-4.) Per Teva's practices, Rothweiler prepared a field coaching report ("FCR") following the field visit. (Id. ¶ 4.) The FCR provided both positive and negative comments regarding Plaintiff's "business acumen." (Id. , R. 81-14 at 6, FCR.) For example, the review stated that Plaintiff engaged in "good discussion" with physicians and "did a nice job of gaining commitment with ... physicians to prescribe our products," (Id. at 8.) The FCR, however, discussed the fact that Plaintiff did not make sales calls to Indiana, stating that "[o]verall 30% of [Plaintiff's] business comes from Indiana, however only 2% of [her] time has been spent there." (Id. at 6.) The FCR also concluded that Plaintiff did not exercise a "sound strategy" for sales, and was making very few sales calls in the morning hours. (Id. at 6, 10.)
Plaintiff's morning absences were due to physical therapy appointments she attended once or twice a week, regular doctor's appointments, and a daily "morning exercise program." (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶¶ 50-51.) These obligations caused Plaintiff to delay the start of her work day or caused her to miss one to two mornings of work every week. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 34, 37.) She testified, however, that Rothweiler approved these accommodations. (Id. )
VIII. The 2014 "Make It Happen" Sales Contest
While Plaintiff was on leave in 2014, a sales contest took place at Teva that it branded as the "Make It Happen" sales contest. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 73.) Initially, Plaintiff was listed as not being eligible to participate in the contest. (Id. ) Jeffery Schurr, a senior manager of incentive compensation at Teva, categorized Plaintiff as ineligible because he was informed by Bobrowski that Plaintiff was "on a leave that was bonus ineligible." (Id. , R. 86-15, Schurr Dep. Tr. at 18.) On June 25, 2014, after seeing an email listing her as ineligible to participate, Plaintiff emailed Rothweiler to explain that she was in fact eligible to participate in the contest. (Id. , R. 81-11 at 70, Keen June 25, 2014, Email.) Five days later, on June 30, 2014, Rothweiler notified Plaintiff that she was eligible to participate in the contest and would be receiving credit for it. (Id. , R. 81-11 at 70, Rothweiler June 30, 2014, Email.)
Plaintiff testified that in the days following the error and before Teva corrected the error, she suffered "great humiliation and embarrassment from the incorrect results from the contest and received calls from many colleagues asking what was wrong with her or if she was on a performance improvement plan." (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 72-76, 82-83.) Even though Plaintiff was informed that she was in fact eligible to participate in the contest, Teva did not correct the "humiliating e-mail that was sent out by the vice president" announcing that Plaintiff was ineligible, (Id. at 73.) Plaintiff, however, did participate in the contest and was paid as one of the winners of the contest. (Id. at 76.)
IX. Plaintiff's Request for a Sales Territory Accommodation
After her return in August 2014, Plaintiff made repeated requests to her supervisors and Teva's human resources department to modify her sales territory. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 55.) In November 2014, Plaintiff requested that Defendants accommodate her medical condition by removing Indiana from her territory. (Id. ¶¶ 54-55; see also id. , R. 81-11 at 73-74, Keen Nov. 20, 2014, Email.) In response, Rothweiler asked if she made a "reasonable accommodations request to anyone in the organization" and, if not, Rothweiler encouraged her to do so. (Id. , R. 81-11 at 73-74, Keen Nov. 20, 2014, Email.) Plaintiff replied that before she made a reasonable accommodations request, she wanted to specifically know if "sales management would consider such a request," because it would be pointless to request an accommodation if her superiors would not approve it. (Id. )
In December 2014 and January 2015, Plaintiff renewed her territory modification request. (Id. , R. 81-9 at 10-11, Keen Dec. 15, 2014, Email; see also id. at 13-14, Keen Jan. 16, 2015, Email.) Plaintiff's request was being considered during this timeframe, and both the sales operations and human resources departments were involved in reviewing Plaintiff's request. (Id. , R. 81-9, Rothweiler Dep. Tr. at 25-26; see also id. , R. 81-9 at 13-14, Keen Jan. 16, 2015, Email.)
Plaintiff was instructed to speak with Elaine McGee regarding her territory modification request who, in turn, directed Plaintiff to contact Work Care, an occupational health management company that Teva contracted with to handle "return to work and/or reasonable accommodation issues for Teva employees." (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 135-36.) Plaintiff had prior confrontational experiences with a Work Care account manager, and Dr. Peter Greaney, Work Care's founder and chief executive officer, was advised that Plaintiff was "quite argumentative" and "had initially refused to sign" Work Care's standard Health Insurance Portability and Accountability Act ("HIPAA") release form. (Id. , R. 81-15, Greaney Aff. ¶¶ 1, 4.) Specifically, Plaintiff: had "blacked out" portions of Work Care's standard HIPAA form that it used to obtain an employee's medical information; was not willing to release medical information; and took issue with the fact that Work Care would need to talk to her health care providers. (Id. ¶ 4.) The "matter was escalated" to Dr. Greaney, who called Plaintiff in April 2015 to seek more clarity on her requests for accommodations. (Id. ¶ 5.) Plaintiff was "rude, loud, and argumentative during the course of the call," and also told him "that a clinical clarification was not required." (Id. ; see also id. at 5, April 3, 2015, Email; id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 59.) After repeated warnings, Dr. Greaney "reluctantly terminated the call." (Id. , R. 81-15, Greaney Aff. ¶ 5.) Plaintiff testified that after Dr. Greaney "hung up" on her, she felt "helpless" and humiliated. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 187-88.) Despite this exchange with Dr. Greaney, Plaintiff provided Work Care with her recent surgical reports and documents that she believed demonstrated her need for a reasonable accommodation. (See id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 136-138.) There is no indication, however, that these reports made any reference to the fact that her territory needed to be realigned to accommodate her medical needs. (See id. )
While Plaintiff had conversations with at least two of her doctors regarding changing her sales territory to accommodate her medical condition, (id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 129, 132), there is no evidence that any of Plaintiff's doctors, as opposed to Plaintiff herself, directly communicated with anyone at Teva or Work Care regarding this accommodation. (See id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 57 (failing to dispute Defendants' assertion that no doctor specifically restricted Plaintiff); id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 133-34 ("Q. What did Dr. Javed say about driving in Indiana? ... A. He supported my efforts to continue pursuing that accommodation. Q. And did he do that in writing? A. No. I didn't ask him to.").) Ultimately, Teva denied Plaintiff's request for a sales territory modification. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 57.) Notably, Dr. Greaney stated that he did not deny her request for an accommodation, and instead "requested information necessary for clinical clarification which [Plaintiff] refused to provide." (Id. , R. 81-15, Greaney Aff. ¶ 6.)
X. Plaintiff's 2014 Performance Review and Subsequent Rebuttal
Plaintiff received her 2014 performance review in February 2015. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 63.) The ratings categories were "Below," "Mostly Meets," "Meets," "Exceeds," and "Exceptional." (Id. ) Plaintiff's overall evaluation was "Mostly Meets," and her overall sales ranking was 233 out of 254. (Id. , R. 81-11 at 76-79, Performance Mgmt. Full Report.) Her manager's comments in the report, who was Rothweiler, included the following:
• "[Plaintiff] did not provide ... any developmental goals in 2014."
• While Plaintiff requested to attend a "selling skills class" in the first quarter of 2014 and that request was denied, Plaintiff "did not request another class upon her return to the field in August."
• "[S]he will need to take a more proactive approach ... to administrative tasks, resource utilization, and communications around business issues in her territory."
• "[Plaintiff] has not demonstrated a leadership role on the team in 2014."
• "[Plaintiff] has not been able to adequately meet an appropriate level of call activity on the customers that have the greatest impact on her business."
• "[Plaintiff] did not submit any expense reports for 2014 until December."
• Plaintiff "did not spend time in the Indiana portion of her territory ... that accounts for approximately 30% of her Nuvigil business."
• "She did not follow her call plan to effectively reach the most valued customers[.]"
(Id. at 77-79.) Plaintiff disagreed with the majority of these remarks as "fundamentally flawed" and responded with a document titled "2014 Keen Performance Review Rebuttal." (Id. at 80; see also id. , R. 86-6 at 52-64, Keen Rebuttal.)
In her rebuttal, Plaintiff described the comments in her 2014 performance review as "false and misleading[.]" (Id. , R. 86-6 at 52, Keen Rebuttal.) She blamed her negative reviews on Teva's failure to follow company policy in their handling of her leave in 2014. (Id. )
The rebuttal further complained that Rothweiler mistakenly included a particular doctor in her sales quota calculations that adversely affected her sales numbers. (Id. at 53.) Her rebuttal also claimed that her failure to provide Rothweiler with developmental goals in 2014 was because she was on medical leave at the time these goals were developed with management. (Id. ) Plaintiff acknowledged that she did not attend the "setting skills class" in the first quarter of 2014 because Rothweiler made her cancel her attendance at that class and told her that she could attend another class later in the year. (Id. ) She also claims that Rothweiler did not invite her to a class later on in the year and that he was nonresponsive when she asked him for class recommendations. (Id. at 54.) As to her lack of collaboration with other employees, Plaintiff stated in her rebuttal that her leave from work impacted her ability to collaborate. (Id. )
With respect to Rothweiler's criticism of Plaintiff's approach towards administrative tasks, "resource utilization," and communicating about business issues, Plaintiff's rebuttal attributed her lackluster performance in these areas to Rothweiler's failure to respond to her concerns about: her inability to access Teva's website and computer applications; issues contacting her managers; problems accessing medical care for work-related injuries; issues related to her corporate credit card; management's expectations of Plaintiff given her medical leave; and pending requests for accommodations that might have improved Plaintiff's performance. (Id. at 55.) Plaintiff acknowledged in her rebuttal, however, that many of these problems were outside of Rothweiler's domain. (Id. )
In response to criticisms pointing out Plaintiff's failure to call doctors in her territory that provided the most sales or sales potential for Teva, Plaintiff claimed that her poor performance was due partly to her medical leave and partly to the strategy that management provided her. (Id. at 55-56.) Plaintiff's rebuttal also criticized negative comments related to her failure to perform well in Indiana, claiming that "Teva refused to provide or even engage" her in discussion about modifying her territory to account for her medical condition. (Id. at 57.) Plaintiff concluded her rebuttal stating that Teva failed to accommodate her medical issues and resolve other non-medical problems that affected her performance in 2014. (Id. at 59-64.) Within this narrative, Plaintiff accused Muller of being "dismissive" of her "disability" during an in-person performance review because it "seem[ed] to [her]" that she had to endure a poor performance review from Muller in 2014 because of her request for an accommodation. (Id. at 62.) While the rebuttal claims that Muller "questioned any legitimate need" for a workplace accommodation given Plaintiff's "only restriction is a 20 [pound] lifting restriction," the rebuttal does not provide specific examples in which Muller directly referenced her request for an accommodation as problematic or negatively affecting her 2014 performance review. (See id. at 61-62.)
This narrative also accused Muller of making crude, sexual remarks on several occasions to other Teva employees. (Id. at 62-64.) Plaintiff's rebuttal claimed that Muller "degraded the standards of behavior" within his division, and that his behavior was related to other instances in which Teva employees had mocked the patients of doctors to whom they marketed Teva products. (Id. at 63-64.)
XI. Plaintiff's Request for Excess Insurance
In March 2015, Teva began offering certain employees excess insurance in addition to their regular auto insurance coverage. (Id. , R. 81-18, Rohach Aff. ¶ 2.) Plaintiff called Teva's human resources department to inquire about this benefit, and she spoke with Melissa Slifer, the Teva employee responsible for such inquiries. (Id. ¶ 4; id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 88.) Slifer explained to Plaintiff that she was not offered the excess insurance because that benefit was only offered to employees above a certain income level, and Plaintiff's income was not high enough to qualify. (Id. , R. 81-18, Rohach Aff. ¶¶ 4-5; id. , R. 86-6, Keen Oct., 15 Dep. Tr. at 89.)
Plaintiff believes she was denied the insurance because of her gender, disability, and previously-filed discrimination claims. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 93-94; see also id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 38.) Plaintiff testified that during her call with Slifer, in addition to explaining the income level eligibility, Slifer said that she was not offered the umbrella policy because "[i]t was on the advice of [Defendants'] counsel[.]" (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 89.) Plaintiff believes that she was denied the benefit because of her disability and gender, and, when asked for the basis of her belief, she said "[b]ecause I should have gotten it." (Id. ) When pushed again, Plaintiff testified, "I'm a female. I should have been offered that. I wasn't and I was given a reason that I didn't qualify for the benefit that simply was not in line[.]" (Id. at 93.) Plaintiff also knew other representatives "who made less money than [she] did [but received] the mailing" that offered the insurance benefit. (Id. at 90.)
XII. Plaintiff's 2015 Leave and Termination in 2016
On March 4, 2015, Plaintiff injured herself when she attempted to move boxes of Teva promotional materials that had been delivered to her home. (Id. R. 86-6, Keen Oct. 15 Dep. Tr. at 105-06; 16-cv-9964, R. 41-2 at 84-86, Workers' Comp. Claims.) Because Plaintiff did not know the extent of her injuries, she did not immediately inform Teva of the injury. (14-cv-9626, R. 86-6, Keen Oct. 15 Dep. Tr. at 109-10.) After she sought medical treatment, Plaintiff went on leave in April 2015. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 61.) Plaintiff last performed work for Teva in April 2015. (Id. ¶ 62.) On April 20, 2015, Plaintiff had another surgery to address problems with her shoulder and cervical spine. (16-cv-9964, R. 40-2, Keen March 29-30 Dep. Tr. at 358, 369.) Plaintiff also filed a workers' compensation claim with the IWCC for this injury. (Id. , R. 41-2 at 84, Workers' Comp. Claims.)
Later in April 2015, Teva did not promptly provide Plaintiff with a medical case manager to address medical issues resulting from Plaintiff's surgery. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 99-100.) Plaintiff did not understand that Teva had any obligation to provide her with a case manager, but instead she believed that the appointment of a case manager was "the process [she] was supposed to go through as an employee." (Id. at 100.) Plaintiff spoke with Teva vice president Ken Adamson regarding her medical issues in 2015, but Adamson never promised a case manager to Plaintiff. (Id. at 101-02.)
In July 2015, Plaintiff's doctor drafted a letter stating that he did not think Plaintiff could be accommodated to return to work unless she would: be restricted to lifting no more than a pound with her right arm; refrain from pushing, pulling, or any repetitive motion; and refrain from typing or driving for any extended period of time. (Id. , R. 30-8 at 24, July 9, 2015, Dr. Shi Letter; Id. , R. 30-8 at 25-26, July 9, 2015, Keen Letter.) As a result of this letter, Teva accommodated Plaintiff's medical condition and extended her leave of absence under the FMLA. (Id. , R. 30-8 at 27, Rothweiler July 16, 2015, Email.) This accommodation, however, was not satisfactory to Plaintiff who, at the time, could only lift one sixteen-ounce beverage in a weightless container; needed to refrain from typing for more than two minutes; needed to refrain from driving for more than one hour; and needed to attend physical therapy during the work week. (Id. , R. 30-8 at 28, Keen July 20, 2015, Letter.) Therefore, Plaintiff requested that she be granted leave from work until September 1, 2015. (Id. ) In response, Defendants requested that Plaintiff execute an authorization for Defendants to review Plaintiff's medical records to confirm these representations and ascertain the accommodations Plaintiff required. (Id. , R. 30-8 at 29-30, Bobrowski July 23, 2015, Letter.) Defendants also warned Plaintiff that they had "issues regarding coverage" of Plaintiff's sales "territory since at least 2011," and that they could not keep her "territory open indefinitely[.]" (Id. )
Plaintiff, however, refused to authorize Defendants' review of her medical records, and, having exhausted all of her FMLA leave, Plaintiff was placed on personal, unpaid leave on July 30, 2015, and given notice that she would need to return her company car. (Id. , R. 30-8 at 34-35, Bobrowski July 30, 2015, Letter to Keen.) Shortly thereafter, however, on August 3, 2015, Bobrowski sent a letter to Plaintiff stating that they would extend her leave of absence through September 18, 2015, pursuant to "the Americans with Disabilities Act and the Illinois Human Rights Act." (Id. , R. 30-9 at 42, Bobrowski Aug. 3, 2015, Letter.)
In August 2015, Teva again delivered several boxes containing promotional materials to Plaintiff, which were delivered to her front porch and partially obstructed the entrance to her home. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 81-82.) To avoid lifting the boxes, Plaintiff opened them, removed the promotional materials inside them, and placed the promotional materials in her company car that Teva later came to retrieve on August 13, 2015. (Id. at 83.)
Plaintiff was not compensated for her absence from work that she took in April 2015. (Id. at 113.) During this time, Defendants' disability benefits vendor, the Matrix Company ("Matrix"), informed Plaintiff that she would not receive disability benefits because she made a claim for a workplace injury, an injury that was excluded under her disability benefits policy. (Id. at 113-15.) Plaintiff believed that her failure to receive disability benefits was retaliatory because she was not paid on her workers' compensation claim, and she believed Teva's policy required her to be paid either the disability benefits or workers' compensation. (Id. at 116-17.) Plaintiff's workers' compensation claim, however, was still pending at the time of her deposition when she testified that she had not yet received any workers' compensation benefits. (Id. at 121.) Matrix also informed Plaintiff that she could receive disability benefits if she entered into a "reimbursement agreement" with Teva that required her to waive certain medical and legal costs she had incurred, but Plaintiff refused to accept this agreement. (Id. at 123-24, 129-30.) Plaintiff believes that her failure to receive any disability benefits was due to retaliation, but she could not identify any specific individual at Teva who retaliated against her. (Id. at 126, 135.) Instead, she identified a "woman" working at Matrix as the person who retaliated against her, and also attributed retaliation to her human resources and sales managers because she "worked with them" and they were "involved in the decisions not to facilitate [her] claims[.]" (Id. at 126-28.)
Also during this timeframe, in response to Plaintiff's workers' compensation claims, Debbie Smith of Scott insurance was investigating the shipments of Teva promotional materials that were sent to Plaintiff's house in 2015, and Defendants represented to Smith that they had sent fewer boxes than were actually received. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 95-96.) Plaintiff believes that this incomplete information was to retaliate against her for filing complaints with the U.S. Equal Employment Opportunity Commission ("EEOC"). (Id. ). Plaintiff speculates that there may have been telephone conversations providing further factual support for her belief that Defendants provided incomplete information to Smith in retaliation. (Id. at 99.)
Plaintiff attempted to return to work on September 21, 2015. (Id. at 141.) On that day, she did not call any doctors or pharmacists to sell Teva products, but instead performed administrative and other tasks from her home to prepare herself to perform sales-related work. (Id. at 141-42, 144, 152.) Plaintiff's superior, Rothweiler, instructed her that she could not return to work until she provided Teva with a medical clearance from her doctor. (Id. at 152-53.) Plaintiff obtained medical clearance from her doctor, but the clearance restricted her to driving only four hours per day. (Id. at 153-54.) Plaintiff's doctor also restricted her to only twenty minutes of typing on her computer at a time. (Id. at 154.) As for weight-lifting restrictions, Plaintiff was restricted to lifting three pounds. (Id. ) Bobrowski forwarded Plaintiff's doctor's recommendations to Work Care, and Work Care sought further clarification from Plaintiff's doctor. (Id. , R. 39, Pl.'s Resp. to Defs.' SOMF ¶ 27.) Teva's policy required this process of clearing Plaintiff's return-to-work request with Work Care. (Id. , R. 30-9, Bobrowski Feb. 28 Dep. Tr. at 50.)
Another requirement in Teva's policy was for Defendants to meet with Plaintiff to help them understand and implement any reasonable accommodations that would allow Plaintiff to return to work. (Id. at 50-52.) Bobrowski contacted Plaintiff to meet with him, Rothweiler, and Muller in Kansas City in early November to ask more questions about Plaintiff's ability to do her job. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 159.) The meeting was scheduled for November 3, 2015, and Plaintiff did not attend because she had jury duty. (Id. at 160.) Plaintiff also declined any meeting because she believed that she had already satisfactorily explained to Bobrowski that she could perform her job. (Id. at 160-63.) Plaintiff was then asked to attend a meeting at a hotel conference room in Chicago with Rothweiler, but Plaintiff declined to attend that meeting without her attorney and a court reporter. (Id. at 196-97, 231, 354; see also id. , R. 30-8 at 50, Rothweiler Nov. 9, 2015, Email.) Plaintiff ultimately did not meet with Rothweiler and had an exploratory surgery on her spine in November 2011 to determine whether she needed any further surgery on her spine. (Id. , R. 40-2, Keen March 30, 2017, Dep. Tr. at 199; see also id. , R. 39, Pl.'s Resp. to Defs.' SOMF ¶ 39.) Following this surgery, it was discovered that her prior spinal surgeries had been unsuccessful, which prompted her doctors to perform further corrective surgery. (Id. , R. 39, Pl.'s Resp. to Defs.' SOMF ¶ 40.)
Plaintiff could not return to work in 2015, and did not endeavor to return to work until April 2016. (Id. at 202-04.) On August 7, 2015, Susan Duff, a Teva benefits analyst, informed Plaintiff that because she had exhausted her FMLA leave and had not been able to return to work, Teva was going to initiate a health insurance plan on her behalf pursuant to the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. § 1161 et seq. (Id. , R. 30-8 at 36, Duff Aug. 7, 2015, Letter to Keen.) Plaintiff believes she was retaliated against by being placed on COBRA because TEVA "had never done that before."
(Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 326.)
During the time Plaintiff was on medical leave, she did not use her company car for any business purposes. (Id. at 166-68.) Plaintiff learned from Bobrowski that Teva was taking away her company car for that reason, and she believed that this decision was retaliatory even though she only used the car to attend physical therapy and "store [Teva] promotional items in it." (Id. at 170.) Defendants decided to take away Plaintiff's company car because, under their policy, Defendants will retrieve an employee's company car if the employee has been away from work an extended period of time and has exhausted his or her FMLA leave. (Id. , R. 30-9, Bobrowski Feb. 28 Dep. Tr. at 119-20, 123.)
Additionally, while her workers' compensation claim was pending, Plaintiff learned that she was under surveillance in September 2015. (Id. at 214-216, 218-20.) Defendants hired a company to watch Plaintiff in order to test the merits of her workers' compensation claim. (Id. , R. 30-9, Bobrowski Feb. 28 Dep. Tr. at 47-48.) The surveillance tape, however, played no role in Teva's decision whether to permit Plaintiff to return to work. (Id. at 45.)
After November 2015, Plaintiff only communicated with Defendants to provide them updates on her health and to send Defendants her expense reports. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 232-35; see also id. R. 30-8 at 55, Keen Nov. 16, 2015, Letter to Rothweiler; id. , R. 30-8 at 56, Nov. 11, 2015, Dr. Lee Letter; id. , R. 30-8 at 57, Strnad Feb. 29, 2016, Letter.) Plaintiff then received a letter from Teva on April 21, 2016, informing her that Teva had terminated her employment. (Id. , R. 30-8 at 58, April 21, 2016, Termination Letter.) From April 2015 to April 2016, Plaintiff did not make a single sales call to a physician or pharmacy. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 239.) This absence was in addition to Plaintiff's approximately five-month long absence in 2014, nine-month absence in 2013, three-month absence in 2012, and more than four-month absence in 2011. (Id. at 245-48; see also id. , R. 39, Pl.'s Resp. to Defs.' SOMF ¶¶ 3-6.)
XIII. Plaintiff's IDHR and EEOC Complaints
Throughout her employment with Defendants, Plaintiff filed several discrimination complaints against Defendants with federal and state agencies. On September 23, 2013, Plaintiff filed claims alleging discrimination and retaliation with the Illinois Department of Human Rights ("IDHR") and EEOC. (Id. , R. 28, Answer to Am. Compl. at 7-8.) On July 15, 2014, Plaintiff filed gender and disability discrimination claims as well as retaliation claims with the EEOC and IDHR. (Id. at 24.) On July 21, 2015, Plaintiff filed more discrimination and retaliation claims against Defendants with the EEOC and IDHR. (Id. at 56-57.) Finally, on February 1 and July 21, 2016, Plaintiff again filed discrimination and retaliation claims with the EEOC. (Id. at 72, 83.)
PROCEDURAL BACKGROUND
On November 12, 2014, Plaintiff filed an action in the Circuit Court of Cook County asserting claims under the IHRA for discrimination and retaliation. (14-cv-9626, R. 1 at 8, State Court Compl.) Pursuant to 28 U.S.C. § 1332, Defendants removed the lawsuit to this Court on the grounds of diversity jurisdiction, and the case was assigned case number 14-cv-9626. (Id. , R. 1, Notice of Removal ¶¶ 1-6.)
As discovery unfolded, Plaintiff filed a series of amended complaints and, on January 11, 2016, Plaintiff filed a 27-count, 113-page fourth amended complaint. (Id. , R. 72, Fourth Am. Compl.) On March 31, 2016, Defendants filed a motion for summary judgment. (Id. , R. 81, Mot. for Sum. J. at 1). While that motion was fully briefed and the Court was in the process of resolving it, on October 24, 2016, Plaintiff filed another complaint in this District, which was assigned case number 16-cv-9964. (16-cv-9964, R. 1, Compl.)
On March 3, 2017, the Court consolidated case 14-cv-9626 into case 16-cv-9964 and permitted Plaintiff to file an amended complaint that included all of her claims in both actions. (Id. , R. 25, Min. Entry.) On March 8, 2017, Plaintiff filed her first amended complaint in the later-filed case, which is now the operative complaint governing the two consolidated cases. (Id. , R. 26, Am. Compl.) Plaintiff's first amended complaint alleges 37 counts against Defendants: discrimination against Plaintiff based on her disability in violation of the ADA and IHRA (Counts 1, 2, 12, 13, 20, 21, 23, 25, 28, 37); discrimination against Plaintiff on the basis of her gender in violation of Title VII and the IHRA (Counts 12, 14, 21, 22, 24, 26, 29, 36); retaliation against Plaintiff in violation of the ADA, Title VII, and IHRA (Counts 3, 4, 5, 6, 7, 8, 15, 16, 17, 18, 23, 24, 25, 26, 27, 30, 32, 35); violation of the IWA (Counts 9, 10, 11, 19, 31, 34); and retaliatory discharge under Illinois law for terminating Plaintiff after she filed claims with the IWCC (Count 33). (Id. at 1-173.)
On May 22, 2017, Defendants filed a "supplemental" motion for summary judgment, which renews their motion for summary judgment on Plaintiff's claims that were consolidated from case number 14-cv-9626, and also moves for summary judgment on the additional claims filed in case number 16-cv-9964. (Id. , R. 30, Suppl. Mot. for Summ. J.; id. , R. 30-1, Mem. at 1. n.1.) In their motion, Defendants argue that Plaintiff has not put forth sufficient evidence of discrimination or retaliation for those claims to survive summary judgment. (Id. , R. 30-1, Mem. at 1-2.) Defendants assert that they are entitled to summary judgment on Plaintiff's IWA and retaliatory discharge claims because Plaintiff is not a "whistleblower" within the meaning of the IWA, and because she produces no evidence connecting her termination and her filing of workers' compensation claims. (See id. at 2-3, 13.) Finally, Defendants argue that the Court should enter summary judgment on Plaintiff's retaliation claims because Plaintiff provides no connection between any protected activity and an adverse employment action. (Id. at 11-15.) In response, Plaintiff argues that numerous issues of fact preclude summary judgment. (Id. , R. 38, Resp. at 9-15.)
On October 13, 2017, Plaintiff filed a motion to strike parts of Defendants' reply and for sanctions against Defendants. (Id. , R. 47, Mot. to Strike Reply.) Plaintiff contends that Bobrowski's affidavit filed with Defendants' reply brief includes intentionally false statements and facts not included with Defendants' original Local Rule 56.1 statement of facts. (Id. at 1-10.) Plaintiff also argues that Bobrowski's affidavit is "hearsay" and contradicts his prior testimony as well as other documents that are part of the record. (Id. at 3-10.) Plaintiff argues that because of the claimed falsehoods and deficiencies with Bobrowski's affidavit, the Court should strike Bobrowski's affidavit and pages 1-15 of Defendants' reply brief. (Id. at 10.) Plaintiff also submits that the Court should sanction Defendants for allegedly "attempting to completely alter [their] defense at the last minute" and for acting in a "dishonest" manner before the Court. (Id. )
LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that "[t]he 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). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation omitted). "A genuine dispute as to any material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Kvapil v. Chippewa Cty. , 752 F.3d 708, 712 (7th Cir. 2014) (citation and internal quotation marks omitted). In deciding whether a dispute exists, the Court must "construe all facts and reasonable inferences in the light most favorable to the non-moving party." Citizens for Appropriate Rural Roads v. Foxx , 815 F.3d 1068, 1074 (7th Cir. 2016), cert. denied sub nom. Citizens for Appropriate Rural Roads, Inc. v. Foxx , --- U.S. ----, 137 S.Ct. 310, 196 L.Ed.2d 219 (2016).
The nonmovant "must go beyond the pleadings (e.g. , produce affidavits, depositions, answers to interrogatories, or admissions on file) to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in [their] favor." Id. (citation and internal quotation marks omitted). "The existence of a mere scintilla of evidence, however, is insufficient to fulfill this requirement." Wheeler v. Lawson , 539 F.3d 629, 634 (7th Cir. 2008). "Conclusory statements, not grounded in specific facts" also cannot defeat a motion for summary judgment. Bordelon v. Bd. of Educ. of the City of Chi. , 811 F.3d 984, 989 (7th Cir. 2016) (citation and internal alteration omitted). In addition, not all factual disputes will preclude the entry of summary judgment, only those that "could affect the outcome of the suit under governing law." Outlaw v. Newkirk , 259 F.3d 833, 837 (7th Cir. 2001) (citation omitted).
In deciding the motions, the Court cannot weigh conflicting evidence, assess the credibility of witnesses, or determine the ultimate truth of the matter, as these are functions of the jury. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Omnicare, Inc. v. UnitedHealth Grp., Inc. , 629 F.3d 697, 704-05 (7th Cir. 2011). Instead, the Court's sole function is "to determine whether there is a g