Keefe, Campbell & Associates, LLC

Editor’s comment: This is an important ruling for H.R. folks to follow and understand. Under the “cat’s paw” theory, in order to impute unlawful bias or prejudice from a coworker / supervisor to an employer, an employee must show the adverse employment decision was based solely on biased or prejudiced information from the coworker / supervisor and that the coworker / supervisor exercised singular influence over the employer.

In Vincent E. Staub v. Proctor Hospital, Nos. 08-1316, 08-2255 & 08-2402, (7th Cir. 2010), Plaintiff (employee) sued Defendant (employer) under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. section 4301 et seq. USERRA makes in illegal to deny those in military service employment or retention in employment due to such service. In the present case, the employee was terminated from his position as an angiography technologist. He alleged he was fired because he was a soldier in the U.S. Army Reserves. Further, the employee sought to impute to the employer what he perceived as the “anti-military bias” of his immediate supervisor.

Plaintiff invoked the “cat’s paw” theory in an attempt to show the employer was used as “tool” by the supervisor to accomplish her goal of terminating Plaintiff. The term “cat’s paw” is taken from a fable written by 17th century French poet Jean de La Fontaine entitled “The Monkey and the Cat.” In this fable a hungry, unscrupulous monkey convinces an equally hungry but unsuspecting cat to pull chestnuts from a fire. The cat succeeds but in doing so burns its paws while the monkey eats all the chestnuts.

After the closure of proofs a jury found for Plaintiff. Defendant appealed to the Seventh Circuit. The Circuit Court noted the supervisor disdained Plaintiff’s participation in the military. Motivated in part by this bias, from 2000 through 2003 she engaged in a pattern of conduct designed to rid herself, and the employer, of Plaintiff. Relying in part upon information provided by the biased supervisor, the employer’s Vice-President of Human Resources eventually terminated the employee for insubordination.

However, the Circuit Court also found the evidence insufficient to support a verdict against the employer. The Circuit Court noted under the cat paw’s theory “animus by a non-decision maker is only relevant if she exercised singular influence over the decision maker.” The evidence and testimony presented established the employee was “technically competent” but was also “prone to attitude problems” and “offended numerous others for reasons unrelated to his participation in the Reserves.” The evidence further demonstrated the ultimate decision-maker terminated the employment relationship free of any anti-military bias. Thus, the Circuit Court found the cat’s paw theory was inapplicable as no reasonable jury could determine the supervisor had “singular influence over” the employer. The Circuit Court found “to be a cat’s paw requires more; true to the fable, it requires a blind reliance, the stuff of ‘singular influence’.”

This article was researched and written by Matthew A. Wrigley, J.D. Please direct your thoughts and comments to Matt at mwrigley@keefe-law.com.

Editor’s comment: Two Illinois healthcare givers, Dr. Salomon and Chiro Minnis, the latter of which owns Spine and Joint Rehabilitation Center in Maywood, IL, have been indicted on federal health care fraud charges. Each count carries a maximum of 10 years in prison and a $250,000.00 fine. The indictment was announced in March 2010 by Patrick J. Fitzgerald, U.S. Attorney. We note a brief Westlaw search under Illinois Workers’ Compensation Cases and Administrative Decisions produced numerous “hits” for both Dr. Minnis and Dr. Salomon.

In Unites States v. Darwin Minnis, Jacob Salomon, and Gary Strauss, 10 CR 0193, Unites States District Court, Northern District of Illinois, Eastern Division, the federal government accuses Dr. Minnis, Dr. Salomon, and “biller” Gary Strauss of submitting false claims which total more than one million dollars. The false claims were submitted to obtain payments from workers’ compensation and other insurance companies for services which were either not provided or for inflated claims for provided services. The alleged scheme took place from 2000 through 2007.

According to the 18 count indictment, Dr. Minnis forged the signatures of other physicians on documents which falsely represented treatment had been ordered or supervised. The indictment alleges Dr. Minnis committed these forgeries as he knew the federal workers’ compensation program would not accept a chiropractor’s opinions or reports as medical evidence to support workers’ compensation claims. Further, Dr. Minnis is accused of double-billing workers’ compensation providers for disability examinations.

In addition, the indictment alleges Dr. Salomon signed false documents which made it appear he or other physicians had treated certain patients when no treatment had been provided. Dr. Salomon and Dr. Minnis then prepared false progress notes and fee sheets.

This claim has been assigned to Honorable John F. Grady. This article was researched and written by Matthew A. Wrigley, J.D. Please direct your thoughts and comments to Matt at mwrigley@keefe-law.com.

Editor’s comment: The Illinois Department of Employment Security (IDES) will likely increase unemployment insurance rates dramatically by the end of the year or no later than 2010. This across-the-board increase will affect all employers, even those who face no unemployment claims.

Illinois has just become the 16th state forced to borrow money from the federal government to pay unemployment insurance benefits because its trust fund has run dry. The roughly $34.7 million Illinois has borrowed so far pales in comparison to the unemployment insurance debt of states like neighboring Michigan, which has borrowed $2.2 billion so far. But since Illinois, like many states, received most of its unemployment insurance revenue in the first two quarters of the year, the borrowing has probably only just begun.

Due to the economy and corresponding liberal provision of unemployment insurance benefits Illinois employers should expect a harsh raise in their unemployment insurance rates. Those employers who have their rates charged to their account may find their rates will rise even higher.

Employers are encouraged to take care in the evaluation of unemployment insurance claims by former employees. Not every claim is valid. In addition, any perceived error on an employer’s IDES rate notice must be protested before the strict due date or the rate becomes final.

An Illinois employer may face a claim for unemployment insurance if it separated the claimant from work or reduced the claimant’s hours, causing the claimant to become unemployed and was the last one to employ the claimant before they filed a claim and employed claimant for at least 30 working days or provided employment that allowed the claimant to re-qualify for benefits after the claimant was previously disqualified for certain reasons.

The Illinois Unemployment Insurance Act allows an employer to contest an unemployment insurance claim. When a former employee worker files a claim the IDES will mail the employer a Notice of Claim. The employer may use the accompanying form to protest either the claimant’s eligibility or the employer’s your status as “chargeable employer” — or both. The employer will have 10 days to file its protest by returning the form to the address indicated. An employer must reply by the due date indicated on the form or its forfeits its right to appeal any subsequent decisions.

Keefe, Campbell & Associates provides advice and counsel to clients involved in Illinois unemployment law disputes. If you need assistance with such claims, please send a reply. This article was researched and written by Matthew A. Wrigley, J.D. If you have comments or ideas, please do not hesitate to contact Matt directly at mwirigley@keefe-law.com.

Editor’s comment: Ah, well. We recently saw claims for state benefits being filed against a government agency providing volunteer “foster grandparents.” It would appear there is no government program, no matter how noble it might be, that can’t be hauled into the Illinois workers’ compensation arena for the potentially giant benefits awaiting claimants from our state.

We looked on the web and found a 2007 IWCC case named: Violet Jackson v. Springfield School District #186 and Central Baptist Children’s Home, 02 IL.W.C. 23999, 02 W.C. 23999, 07 I.W.C.C. 0502, issued April 30, 2007. In that ruling, the IWCC noted claimant received a stipend of $2.65 per hour and have to volunteer between 20-40 hours each week. Despite the fact she was effectively a low-paid volunteer, they awarded about $50,000 in medical, lost time and permanency benefits. Please note federal pre-emption was not raised by counsel in this claim and it was apparently waived.

Now, a private, non-profit organization also created and administered under the rubric of the Domestic Volunteer Service Act of 1973, as amended, 42 USC Section 5000, et seq., has sued the IWCC in federal court and requests a declaratory judgment finding their “volunteers” ineligible from obtaining workers’ compensation benefits under our state Act. Most observers may note volunteers, who aren’t paid and have no expectation of payment are not entitled to WC benefits. We do note the small stipend appears to simulate wages. Obviously, Plaintiff isn’t willing to “trust” the IWCC and our state courts from following our law.

In Kids Hope United v. Roberta Montgomery, Amy Masters, and the Illinois Workers’ Compensation Commission, (No. 2009-C-1491), filed in the United States District Court for the Northern District of Illinois, Eastern Division (District Court), Kids Hope United (Plaintiff) seeks “federal preemption” to preclude volunteers from receiving the Act’s hefty benefits. Plaintiff is a not-for-profit corporation with its principal place of business in Chicago.

According to the complaint, on or about October 18, 2004 Defendant Roberta Montgomery (Montgomery) enrolled as a volunteer foster grandparent pursuant to the Foster Grandparent Program (FGP). The FGP is administered under the authority of the Domestic Volunteer Service Act of 1973. Montgomery volunteered to provide services in her community in connection with a program sponsored by Plaintiff. Montgomery was assigned to the North Chicago Community Unit School District 187. While serving as a volunteer Montgomery received a “monthly stipend funded by the federal government” according to the complaint. Plaintiff asserts at no time did it pay Montgomery a salary, wages, or benefits. While acting as a volunteer foster grandparent Montgomery allegedly slipped on a slice of ham and sustained an injury to her person. On October 31, 2008 Montgomery filed an Application for Adjustment of Claim under the Act which named Plaintiff as a party Respondent. To our knowledge, the Application remains pending and has not yet been adjudicated by the Arbitrator assigned.

In its Complaint filed March 9, 2009, Plaintiff asserts pursuant to 42 USC Section 5058 “the stipend paid to enrolled volunteers shall not be treated as wages or compensation for purposes of worker’s compensation.” Plaintiff further cites the Supremacy Clause of Article VI of the Constitution in support of its claim federal law preempts state law when the latter serves “as an obstacle to the accomplishment and execution of the full purposes and objective of the Congress.” Plaintiff requests the District Court

a) Declare the Act preempted by the Domestic Volunteer Services Act of 1973,

b) Find Montgomery is not entitled to recover state workers’ compensation benefits from Plaintiff, and

c) Enter an order enjoining the IWCC from invoking the Act with respect to any claim for workers’ compensation benefits brought against Plaintiff by any person enrolled as a volunteer in the FGP.

This matter has been assigned to U.S. District Court Judge John Grady. An Answer to Plaintiff’s Complaint has not yet been filed. We will keep you advised as to progress. This article was drafted by Matthew A. Wrigley, J.D. Please do not hesitate to forward your thoughts and comments.

Editor’s comment: With respect to the members of the Court, if our suspicions are correct, we feel this award is preliminarily confusing and potentially strains credulity. We do not feel the legislature intended this result and we feel there is nothing clearly outlined in the legislation upon which the Court relies to reach this outcome. It is also may be a matter of unnecessarily generous largesse for every widow or widower in this state for anyone related to someone injured severely while living who later passes from related conditions. We also feel it may be a business-destroying, premiums-about-to-skyrocket decision that will again push jobs away from our state. Underwriters for Illinois claims beware!

In light of this ruling, we are petrified of what to expect in the Beelman Trucking ruling currently being considered by the Illinois Supreme Court. In Beelman Trucking, claimant suffered severe injuries and lost both arms. The Arbitrator accurately ruled he was a statutory total and permanent disability and such benefits are unquestionably due for life. On top of that, she also ordered 100% loss of use of the limbs so as to require PPD to be paid weekly at the same time the total and permanent benefits were being paid—the outcome requires a number of years of “double PPD.” We are unaware of any legislative scheme in all of the U.S. workers’ compensation systems that foster such outcomes. Now, Illinois may not have one but two different scenarios where double-payment is perceived by our Courts to be the law. Defense observers note there was no compelling reason for the Supreme Court to consider the Beelman Trucking decision that overruled the double-payment scenarios. The ruling in this case we analyze today now leads us to feel the pro-plaintiff jurists on the reviewing courts may want double-payment of benefits to become the law in as many settings as possible.

In Freeman United Coal Mining Company v. Van Houten, (No. 4-07-0905WC & 4-07-0907WC September 29, 2008), an Application for exposure to coal dust was filed by a living coal miner named Kenneth Van Houten on March 10, 2000 for a February 2, 1998 exposure. He died on May 19, 2000 of what were later determined to be work-related causes. After his passing, on August 2, 2000, the widow filed a separate Application for death benefits. We consider the second Application the confuser and consider it wholly unnecessary—he died of the same cause; exposure to coal dust.

There is no dispute Decedent worked as a coal miner for 38 years and was exposed to coal dust. He developed chronic lung disease in the form of hypoxemia, chronic obstructive pulmonary disease, long-standing heart disease and chronic bronchitis. The Arbitrator found Decedent’s exposure to coal and rock dust a causative factor in the development of his maladies and eventual death. He awarded the widow benefits under Section 7 of the Act and ordered the employer to pay for decedent’s funeral expenses.

The confusion begins when the Arbitrator did not award benefits in the decedent’s claim that he filed while living, ruling the claims abated on his passing. We cannot tell if the parties sought TTD from February 2, 1998 until his passing on May 19, 2000. From our review of the ruling, the condition was work-related and claimant was disabled from February 2, 1998 until his passing, if Petitioner asked for it, we assert the Arbitrator could have awarded TTD from the date of his disablement on February 2, 1998 until death occurred in May 2000. The Commission effectively affirmed and found the condition abated at death and the widow was entitled to death benefits only.

On appeal, the widow argued the Commission’s finding which ruled Decedent’s claim brought while living abated by virtue of Section 8(h) was “legal error.” The Appellate Court reviewed this issue de novo as one of statutory construction. Delivering the opinion of the court, Justice McCullough found Section 8(h) unambiguously “provides that benefits to which the employee would have been entitled but for his death are to be paid to the employee’s survivors upon his death from any cause.” The Court further held if a claimant “dies during the pendency of the claims process, the claim shall proceed as if the death had not occurred.” If the claim prevails, “all compensation that would have been awarded to the claimant shall be paid to the dependents of the deceased claimant” and “any other claims any dependent might have as a result of the claimant’s death shall proceed unaffected.”

We point out the statute doesn’t say what the Court says it does—the words “the claim shall proceed as if the death had not occurred” aren’t in Illinois law. We also point out all Illinois workers’ compensation benefits are to be paid weekly. There is no indication our legislature wanted double weekly payments to be paid at any time to widows or anyone else. One reading of this challenging decision may allow for double weekly checks to be awarded—we consider that to be anomalous and inconsistent with most U.S. workers’ compensation systems and legislative intent.

So our worry is a hypothetical claimant who smokes a “clove cigarette” at lunch and then falls from a ladder at work. During emergency care, the physicians amputate his/her arms and legs. Claimant survived but never recovered consciousness and he/she dies one week later of the injuries. In such a scenario, it would appear his/her widow(er) would be entitled to one week of TTD (less the waiting period) and then the full death benefit. To the contrary, in this unanimous decision, the Court appears to rule the widow would get the full death benefit that is a minimum in this state of at least $560K up to about $1.6 million dollars and on top of that, the widow could also file a second Application for the same accident/exposure and would also get 100% loss of use of each leg and each arm. Such a scenario would add at least an additional 936 weeks of benefits or potentially over $1 million more to the death benefit. If the Commission truly felt generous, they could dump in another 500 weeks for 100% loss of use of the “person as a whole” which would give the estate another $325K. In such a scenario, the award could exceed $3 million! We will leave all of that to your imaginations because that is where we feel this is coming from.

We feel the accurate ruling in this matter is claimant had one case for one exposure on February 2, 1998—the second filing is duplicative and unnecessary; you can’t and shouldn’t be able to file and maintain two Applications for one exposure on one day. We assert the second Application should have been dismissed and urge Respondent’s counsel to move to dismiss it right now to protect the record. We also feel it may or may not have confused the reviewing court because the plain reading of their decision is confusing us. We note the Court specifically rules “Any other claims any dependent might have as a result of the claimant’s death shall proceed unaffected.” (emphasis added; we also note the decision is referring to dependents when they appear to actually refer to the widow who isn’t necessarily a dependent). We have no idea what, why and how a widow of a deceased injured worker has “any other claim” arising out of one exposure on one day.

Under the statutory provision cited by the Court in their decision, we feel the widow(er) unquestionably takes any workers’ compensation benefits be it medical bills, TTD or PPD due to claimant while living. Upon passing, the living claim for any pending benefits would shift/abate/whatever-you-want-to-call-it to allow the widow(er) to then be entitled to the full weekly death benefit. Please note the death benefit might be dramatically higher for a lower wage individual than PPD rates for scheduled injuries. Under our view, using a “plain English language” reading of the Act, he/she would never be entitled to both weekly PPD for the claim to be paid after the passing of claimant with weekly death benefits at the same time.

If the Court simply intended to allow for an award of TTD from February 2, 1998 until May 19, 2000 and remanded the matter for that purpose, the decision should say so. As we read the ruling, it would appear the Court wants double payment of weekly benefits when they refer to “any other claims” and say “the claim shall proceed as if the death had not occurred.” We feel this is wholly inconsistent with the legislation and hope the anomaly is clarified.

We hope the legislative gurus at the Illinois State Chamber read this one carefully and put it on the list of stuff that may need to be reformed. This article was drafted by Matthew A. Wrigley, J.D. and Eugene F. Keefe, J.D. We invite your thoughts and replies.

Editor’s comment: Under the Illinois Act, decisions are routinely entered which seem to reward Petitioners for having no job skills, training, or education in exchange for which an employer would provide compensation. Now, as a result of a new ruling, the Commission and reviewing courts may reward claimants who enter and remain in the United States illegally, who illegally reside in Illinois, and who obtained their employment by presenting false documentation to the employer, even though the latter conduct unquestionably violates the Immigration Reform and Control Act of 1986 (IRCA).

In Economy Packing Co., v. IWCC (No. 1-07-2947WC, December 9, 2008), an alien was awarded lifetime total and permanent disability benefits despite her illegal immigration status. At arbitration she admitted “when she applied for her position with [Respondent] she presented documents she received from a source other than the government.” Claimant further admitted she could not legally obtain employment in the United States. We ask the rhetorical question of whether she had an appropriate visa to be present at arbitration.

Claimant was employed on an assembly line “manually deboning chickens.” She suffered an injury to one arm, resulting in typical shoulder surgery. Upon reaching maximum medical improvement, claimant was given the “golden diagnosis.” While there is no question she can work she was given permanent restrictions which precluded her from resuming an assembly-line job. The Arbitrator and Commission found Claimant to be permanently and totally disabled under the “odd-lot” doctrine. They relied upon the following as justification: Claimant was 60 years old; her only formal education consisted of three years of schooling in Mexico; Claimant spoke only Spanish and could not speak, read, or write English; she could not drive an automobile and her only other employment experience had been work on a farm in Mexico.

The Appellate Court found an undocumented alien may establish permanent and total disability under the “odd-lot” doctrine so long as she proves “she cannot sustain regular employment in a well-known branch of the labor market without regard to her undocumented status.” The burden then shifts to the employer to establish “but for the undocumented alien’s legal inability to obtain employment, suitable work would be regularly and continuously available.” The Appellate Court applied this supposed “test” to find the Commission’s decision was not against the manifest weight of the evidence.

In reaching this decision the Appellate Court found the “plain meaning” of the term “alien” to encompass those born in a foreign country who cannot legally work in the United States. Thus, the unanimous majority concluded “all aliens in the service of another” are considered “employees” under the Act and are entitled to the Act’s workers’ compensation benefits. Further, the First District found IRCA does not preempt the Act and therefore it does not bar an undocumented alien from receiving the Act’s benefits even when the alien knowingly used false documents to obtain employment. Please note the United States Supreme Court ruled an employer commits a felony under federal law when it assists an alien whom it should reasonably know is illegally in the United States or who lacks employment authorization; by transporting, sheltering, or assisting him to obtain employment, encourages  alien to remain in the United States; and by referring him to an employer, by acting as employer or agent for an employer in any way, or knowingly assists illegal aliens due to personal convictions.

We know you may not be surprised but, as academics and with the highest respect to our Appellate Court, this ruling simply doesn’t hold water. The Illinois Appellate Court cannot explicitly or implicitly “overrule” the U.S. Supreme Court. In their Hoffman Plastics ruling, the U.S. Supreme Court clearly and unquestionably ruled it is illegal or a violation of U.S. law to hire an undocumented worker. Similarly, it is illegal for an undocumented worker to apply for and accept a job. In Justice Holdridge’s concurrence in Economy Packing, he analyzes legislative history and writes our legislature intended  “illegal aliens qualify as employees.” We ask all of our readers whether such a statement doesn’t diametrically contradict the ruling in Hoffman Plastics by our highest court. If it is against federal law to hire aliens or for aliens to seek and obtain jobs, our state legislature can’t overrule the U.S. Supreme Court and federal law to somehow make it “legal.”

In light of relevant federal legislation as well as this ruling in Economy Packing it should be abundantly clear the only entity or individual who will benefit from an illegal hire is the illegal alien. We support what the Appellate Court noted was the primary purpose of IRCA — “to diminish the employment ‘magnet that attracts aliens here illegally.’” This employer may have thought they were saving lots of money in hiring an undocumented worker—this simple shoulder surgery claim may cost them $500K. If you don’t want illegal aliens to take advantage of you and our very liberal laws and hearing officers, don’t hire illegal aliens.

We urge Illinois business to require verification of legal status of your employees and applicants mandatory. As an Illinois employer, by eliminating the hiring and employment of illegal immigrants you will avoid penalties under federal law and you may also avoid the conversion of your insurance premiums into a life time of welfare payments to an illegal alien. Call 1-866-DHS-2-ICE and report employers who knowingly hire illegal aliens. This toll free tip line was established by the Unites States Border Control. Participate in “E-Verify”, an internet based system operated by the Department of Homeland Security and the Social Security Administration which allows employers to electronically verify employees’ and potential employees’ hiring eligibility. For further information, log on to www.dhs.gov. This article was researched and written by Matthew A. Wrigley, J.D. Please direct comments and inquiries to him at mwrigley@keefe-law.com.

Editor’s comment: Plaintiff alleged permanent disability and inability to work due to a workplace injury on the railroad. His subsequent intentional contemptuous disregard for discovery deadlines, improper interference with evidence, and intentional deceptive and false statements constituted grounds for dismissal. Any subsequent gasp of righteous indignation heard did not emanate from the defense bar.

In Negrete v. National Railroad Passenger Corporation (Amtrak), (No. 07-3287 October 27, 2008), a male track-repair worker (Plaintiff) sued his employer (Defendant) in the United States District Court for the Northern District of Illinois, Eastern Division. He alleged permanent disability as a result of a fall off a welding truck. Defendant conducted an investigation into the allegations in Plaintiff’s law suit to determine the extent of Plaintiff’s injury and whether he was able to work. In response to Defendant’s request for the names of each treating doctor, Plaintiff provided only those names of the doctors whose findings helped his case and withheld the names of those who found him able to work.

In response to Defendant’s request for medical records kept by the Railroad Retirement Board (RRB), an entity which will only disclose records to the patient, Plaintiff provided 12 pages as a “complete record.” In response to Defendant’s Motion to Compel, Plaintiff produced an additional 236 pages of documents, including formerly undisclosed documents, as a complete record. The 236 pages did not include the 12 pages formerly produced.

In response to the U.S. District Court’s order to obtain and produce a sealed copy of his RRB file, Plaintiff submitted an envelope which purported to be the file. However, the envelope had been opened twice prior to its production.

At his deposition Plaintiff testified he had no post-accident income. He later admitted owing an apartment building with two tenants. Plaintiff testified each tenant paid him $450.00 per month in rent. However, Plaintiff’s tax returns from 2002 through 2005 established at least $160,000.00 in income from three apartment buildings. Plaintiff’s own rental receipt book indicated he received $650.00 per month from each tenant. Additional investigation established Plaintiff had 15 tenants. The District Court found Plaintiff’s hiding of his rental income relevant because he alleged an inability to earn a living due to his injury.

In addition, Plaintiff alleged an inability to perform even minor housework. However, his tenants told an investigator since the accident Plaintiff had personally “painted, changed windows, repaired a floor, laid tile, and installed a new toilet.” The District Court noted at his deposition Plaintiff testified his brother had maintained the apartments “in exchange for beer.” Finally, the District Court noted Plaintiff happened to miss 21 discovery deadlines. The District Court dismissed Plaintiff’s lawsuit under FRCP 37(b)(2)(A)(v) as a sanction for discovery violations. Plaintiff appealed.

The U.S. Court of Appeals for the Seventh Circuit upheld the District Court’s dismissal. The Appellate Court noted dismissal is a “drastic” penalty but in this case was no abuse of discretion in light of Plaintiff’s “repeated, willful efforts to hide evidence.” Plaintiff argued his mistakes were “innocent.” The Appellate Court found him a “poor liar.” In addition, Plaintiff argued dismissal was too harsh a penalty because he was “uneducated” and “lied only about collateral issues.” The Appellate Court found “it does not take a graduate degree to understand that is it unacceptable to hide evidence and lie . . . “ There were no dissenting opinions.

This article was researched and written by Matthew A. Wrigley, J.D. Please direct comments or inquiries to Matt at mwrigley@keefe-law.com.

Editor’s comment: To succeed on a claim under the old ADA, a Plaintiff must establish he/she is

a) “Disabled,”

b) Qualified to perform the essential function of the job either with our without reasonable accommodation, and

c) Suffered an adverse employment action because of the disability.

In Equal Employment Opportunity Commission (EEOC) v. Lee’s Log Cabin, Inc., (No. 06-3278 October 6, 2008), the EEOC (Plaintiff), on behalf of an HIV-positive female job applicant, sued Defendant due to the latter’s refusal to hire the applicant as a waitress. The applicant applied for the waitress position in 2004. She was 18 years of age and had been born with HIV. On the job application she apprised Defendant of her lifting restriction of 10 lbs. She further noted on the application this restriction could not be accommodated. The applicant knew from the job description Defendant’s wait-staff was required to lift between 25 and 30 lbs. multiple times during a shift. The parties disputed whether the applicant later told Defendant’s assistant manager her restriction was temporary.

The applicant returned to Defendant’s restaurant one month later and asked to revise her application. The assistant manager retrieved the application at which time the applicant saw “HIV+” written on the front. The assistant manager acknowledged he made the notation. He further explained the store owner made the hiring decisions. The store owner later testified he did not hire the applicant because she was unable to lift more than 10 lbs. and had no prior waitressing experience.

The EEOC filed suit alleging Defendant violated the American with Disabilities Act (ADA). This was the applicant’s second lawsuit in three years. In the first suit she alleged her employer fired her when it learned she was HIV positive. In the first suit the EEOC reached a settlement on her behalf.

Defendant filed a motion for summary judgment. Subsequently, the EEOC filed affidavits from the applicant and her physician which discussed how “AIDS” or “HIV/AIDS” affected her life activities. This was the first time the applicant alleged she actually had AIDS. The EEOC presented no evidence on how being HIV-positive alone affected the applicant. In addition, the EEOC submitted the physicians’ affidavit in violation of the District Court’s pre-trial order because it had failed to disclose the physician as its expert.

The District Court granted the motion for summary judgment. It held HIV and AIDS are not synonymous and the EEOC’s eleventh hour attempt to shift the factual basis of its claim came too late. Therefore, it disregarded the affidavits. The District Court held the EEOC’s failed to present evidence which showed HIV affected any of the applicant’s major life activities and thereby failed to make a threshold showing that her HIV-positive status met the statutory definition of “disability.” Finally, the District Court held there was no showing Defendant knew the applicant suffered from AIDS and it was “questionable” whether the applicant was a qualified individual under the ADA. Plaintiff appealed.

The Seventh Circuit noted the ADA prohibits discrimination against a qualified individual with a disability because of the disability. It noted further whether an individual has a disability under the ADA is an individual inquiry. The Seventh Circuit found the EEOC failed to explain why it waited until its response to summary judgment to disclose the applicant had AIDS “and that this was the actual basis for the discrimination alleged.” Thus, the Seventh Circuit held the District Court had not abused its discretion in disregarding the affidavits submitted by the applicant and her physician. Thus, the record was silent on the effect of HIV on the applicant’s life activities and the District Court necessarily concluded the EEOC failed to make a threshold evidentiary showing of a disability within the meaning of the ADA.

The Seventh Circuit also addressed whether the applicant was a “qualified individual” under the ADA. It found she was not. The Seventh Circuit found a “qualified individual” is one “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires” and must also “satisfy the requisite skill, experience, education and other job-related requirements of the employment position.” In the present case the applicant informed the Defendant in her own job application she was unable to lift over 10 lbs. and further advised Defendant her restriction could not be accommodated. In addition, the applicant knew the position required lifting more then 10 lbs. Thus, summary judgment in favor of the Defendant was appropriate.

We note this ruling may be impacted when the ADAAA goes into effect on January 1, 2009. This article was researched and crafted by Matthew A. Wrigley, J.D. Please direct your thoughts and comments to Matt at mwrigley@keefe-law.com.

Editor’s comment: Matt Wrigley, our intrepid associate reports the following:

1)  The new arbitration decision forms will contain a box in the upper right hand corner on the front page containing smaller boxes to be checked by the State’s data entry people re: whether case involves Injured Workers’ Benefit Fund, Rate Adjustment fund, Second Injury Fund, or none of the above. The proposed findings must include this decision form or they will not be accepted.

2)  Arb. Paula Gomora is running for judge in Will County. Arb. Gomora is a veteran and solid jurist. Please donate—her website is http://www.paulagomora.com/home.html

3)  Arb. Maureen Masterson-Pulia is running for judge also. We consider her one of the top legal minds in Illinois. Please donate—her website is http://www.maureenforjudge.com/

4)  No word on reversion to the 3-month status cycle.

5)  There is a possible big change brewing in our practice–we may soon have uniformity among all arbitrators as to whether submission of fee schedule itemization of bills will be required prior to arbitration.

6)  To obtain Petitioner’s (or any witness) criminal history you may issue a subpoena to the following address:

Keeper of the Records

Illinois State Police

Department of Forensic Services and Identification

ATTN: Thomas Bud Loverude

260 N. Chicago Street

Joliet, IL  60431

For questions, thoughts or comments about the CBA Workers’ Compensation Section meetings, reply to mwrigley@keefe-law.com.

Editor’s comment: A causal relationship is not established by the fact one even precedes another. The timing of an employer’s promotion of an employee is generally controlled by vacancies beyond an employer’s control. Therefore, an employee who alleges her non-promotion was retaliatory must produce evidence which demonstrates more than a mere temporal link.

In Hall v. Forest River, Inc., (No. 07-2653 July 30, 2008), a female employee (Plaintiff) was passed over for promotion both before and after she complained to her employer (Defendant) of alleged sexual harassment by a male coworker. Promoted coworkers included those with less seniority than her. Plaintiff filed suit which alleged retaliation under Title VII. The U.S. District Court for the Northern District of Indiana granted judgment as a matter of law in favor of Defendant. It found no legally sufficient evidentiary basis upon which a reasonable jury to find for Plaintiff. Plaintiff appealed.

The U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) reviewed de novo the District Court’s order. The sole issue on appeal was whether the evidence as a whole when combined with all reasonable inferences permissibly drawn from this evidence was sufficient to allow a reasonable jury to find in favor of Plaintiff.

Success on a retaliatory discharge claim requires sufficient evidence which shows an employee

1) opposed an unlawful employment practice,

2) The employee suffered an adverse employment action, and

3) This adverse action was caused by the employee’s opposition to the unlawful employment practice.

In the present case, the parties agreed Plaintiff met the first two prongs. She complained of alleged sexual harassment by a male coworker and Defendant decided not to promote her. Thus, the question was whether Plaintiff presented sufficient evidence of casual relationship to reach a jury.

The Seventh Circuit noted Plaintiff produced no evidence to show longevity equated to superior qualifications or that Defendant promoted on the basis of seniority. The record indicated the opposite – longevity was not a factor in promotions. The Seventh Circuit also noted federal anti-discrimination laws were not intended to legislate seniority rights where none existed in the contract of employment. It further held an employee must also do more than present her own subjective “self-appraisal” to create a genuine issue of fact. Finally, the Seventh Circuit found “none” of the evidence relied upon by Plaintiff indicated her sexual harassment complaints were related to Defendant’s promotion of her male coworker. Simply put, no evidence was presented which spoke to Defendant’s motivation in promoting. The Seventh Circuit held that in the absence of evidence of pretext or retaliation Plaintiff could not prevail as a matter of law. The Judgment of the District Court was affirmed.

This article was researched and written by Matthew A. Wrigley, J.D. If you have thoughts and comments or need the case citation, please send a reply to mwrigley@keefe-law.com.