UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TUBONIMI BOB.MAUNUEL,

Plaintiff,

v.

CHIPOTLE MEXICAN GRILL, INC.,

Defendant.

No. 12 C 750

Chief Judge Ruben Castillo

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Tubonimi Bob-Manuel brings this action against chipotle Mexican Grill, Inc., alleging

employment discrimination on the basis of race and national origin and retaliation in violation of

Title vII of the civil Rights Act of 1964,42u.s.c. g 2000e et seq.(..Title vII,,), and,42u.s.c.

$ 1981 ("Section 1981"); discrimination on the basis of age and retaliation in violation of the

Age Discrimination in Employment Act, 29 u.s.c. $ 621 et seq. (the,.ADEA"); discrimination

on the basis of disability and retaliation in violation of the Americans with Disabilities Act,42

u's'c' $ 12101 et seq' (the "ADA"); and retaliatory discharge in violation of Illinois state law.

Presently before the court is Defendant's motion for summary judgment pursuant to Federal

Rule of civil Procedure 56. For the reasons set forth below, the court grants Defendant,s

motion in part and denies it in part.

RELEVANT FACTS'

Plaintiff is a fifty-five-year-old black, Nigerian-born, united States citizen. (pl.,s Rule

56' l Resp' fll: 42-44') Defendant is a chain of "fast casual" restaurants that specializes in

I 

Rule 

rhe 

56.1(aX3) 

court takes the facts from the parties' statements of material facts. (R. g3, Def.,s Local

Facts ("PI.'s Rule 

Statement of Materiar Facts (..Def.,, ru"ir';;; R. 96, pr.,s Response to Def.,s 56.1 Resp."); R. g7, pl.,s 

Facts 

Local nure io.rrux:l<cl statement of Material ("P1.'s Facts"); and R. tO:, Oef.,s Response to pl.,s Facts (..Def.,s Rule 56.1 Resp.,,).)

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Mexican fare' (Id.'!f l.) Defendant operates a restaurant located at ll2gl.ake street in oak

Park, Illinois (the "Oak Park Restaurant"), where Plaintiff worked from November 16,200g,

until his termination on March ll,2}ll. (Id..Tll l, 10,41.)

Each of Defendant's restaurants is operated by a set of crew members who are

responsible for preparing and cooking food, assembling customer orders, cleaning and

maintaining the restaurant, serving customers, and other similar tasks. ed nD All crew

members are at-will employees. (Id) crew members work in three primary work areas: Grill,

Prep' and Line' (Id' fl 9') Grill and Prep are stations in the back of the restaurant, and crew

members at these stations are required to maintain proper food handling, safety, and sanitation

standards while preparing food; follow recipes; exhibit a cheerful and helpful manner; display a

positive and enthusiastic approach to all assignments; and develop positive working relationships

with all restaurant personnel. (Id. n 8.) The Line involves all the positions in the front of the

restaurant, which are divided into the tortilla, salsa, expeditor, and cashier stations. (Id. n g.)

crew members are assisted and managed by four levels of management (listed in ascending

order of responsibility): Kitchen Manager, service Manager, Apprentice Manager, and General

Manager' (Id 1[ 3') The General Manager is responsible for making all employment and

operational decisions in the restaurant, including deciding who to hire and fire, deciding who to

promote and train, and scheduling employees. (Id. fl 4.) The General Manager is supervised by

an Area Manager, whose duties include overseeing a number of restaurants and helping those

restaurants reach their goals. (Id. 113.)

I. Plaintiffs First Four Months of Employment

General Manager Robert Ruggiero, a caucasian male, and Apprentice Manager oscar

o'Campo, a Hispanic male, interviewed and hired Plaintiff on November 16,200g,as a crew

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member' (Id' n rc) Plaintiff alleges that he was specifically hired as a general manager trainee

on a fast-track to management. (Id.; Def.'s Rule 56.1 Resp. n26.) Joe Kersjes, a twenty-sevenyear-old Caucasian male, was hired on November 22,2008, as a Service Manager. (pl.,s Rule

56'1 Resp' n 46.) Both Plaintiff and Kersjes initially trained together with Ruggiero, and they

worked frequently together in the back of the restaurant. (Def.'s Rule 56.1 Resp. n27.) Within a

few weeks, however, Ruggiero discontinued Plaintifls training while continuing to train Kersjes.

(Pl''s Rule 56.1 Resp. fl 45.) Plaintiff remained almost exclusively in the back of the restaurant,

frequently washing dishes, while Kersjes rotated to other stations. (Def.,s Rule 56.1 Resp. ,tT2s.)

Kersjes was promoted to Apprentice Manager at the Elmhurst, Illinois Restaurant on Aprll27,

2009' Qd \29) Plaintiff alleges that Ruggiero stopped training him because of his race,

national origin, and age. (Pl.'s Rule 56.1 Resp. ''lT 45.) Plaintiff admits, however, that he never

heard Ruggiero make any comments regarding Plaintiff s race, national origin, or age. ed n 47.)

Plaintiff also alleges that o'campo treated him differently based on his race, national origin, and

age by making him wash dishes and take out the garbage by himself, by keeping him in the food

preparation area, and by refusing to cross-train him. (Id. n 48.) plaintiff admits, however, that

washing dishes, taking out garbage, and working in the food preparation area are all

responsibilities of a Prep employee. (Id.) He also admits that he never heard o,Campo make

any comments about his race, national origin, or age. (Id. n 4g.)

II. Plaintiffs Performance Issues

Ruggiero was Plaintiff s General Manager for the first four and a half months of

Plaintiff s employment. (Id. tT 11.) After Ruggiero left, Jeanine Cruz Chavez, a Caucasian

female, became the General Manager of the Oak Park Restaurant and supervised plaintiff until

october 17,2010. (rd. n 15.) Area Manager Vicky Kubicki, a Caucasian female, was Chavez,s

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supervisor during PlaintifPs employment. (Id.ll 16.) on June 1,2009, Chavezrecorded in

Plaintiff s Development Journal that he needed to work on perfecting his procedure because he

made mistakes that would not happen if he took his time, and that he needed to work on

completing all Prep tasks by 6:00 p.m. and getting out by I r:00 p.m. (Id. n20.) on June 15,

2009, Plaintiff allegedly received his first written warning (a "performance Discussion,,), stating

that on June l3th, he made a batch of guacamole but did not cover it with two lawyers of plastic

as he was trained to do; as a result, the guacamole had to be disposed of. (Id. n 21.) plaintiff

denies that the guacamole incident occurred and he denies receiving the performance Discussion.

Qd') rn fact, Plaintiff denies receiving any of the five Performance Discussions that were in his

personnel file' (Def''s Rule 56.1 Resp. ''!T 15.) Performance Discussions are supposed to be given

to employees in a face-to-face meeting and the manager is supposed to confirm receipt, yet none

of Plaintifrs Performance Discussions were signed by either plaintiff or a manager. gd. fln Al5') Michael Triola, the Human Resources Director for the Central Region, admitted that

Plaintiff may have never received the Performance Discussions in his file. (Id.lT 15.)

Ln2009, Plaintiff failed to report to work for a scheduled shift on nine occasions. (pl.,s

Rule 56'l Resp' It24) Plaintiff alleges that the schedules posted were not always the final

schedule and that chavez scheduled him to work on days he had requested off due to doctors,

appointments' (Id') Chavezalso testified that sometimes the schedules changed after they were

made' (Id') Anundated, unsigned performance review in Plaintiff s file rated plaintiff s

performance in the categories of food, equipment, and customer service as ..needs

improvement," which is the lowest possible rating. (Id. j]27.)

In January 2010, Chaveztold Julia Kim, Human Resource Generalist, that plaintiff was

not meeting his job expectations and was a low performer. (1d.1125.) After reviewing plaintiff s

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Development Journal, Performance Discussions, and performance reviews, Kim advised Chavez

to have an honest conversation with Plaintiff about expectations on a weekly basis, and then

later, on a daily basis. (Id. n26.) Erica Arringlon, an Apprentice Manager, noted plaintifps

performance issues in the oak Park Restaurant's Dear Diary2 on several occasions in early 2010:

on February l3th she noted that Plaintiff struggled to keep up with prep and dishes; on March

4th she noted that Plaintiff did not complete Prep and started marinating a steak at l0:50 p.m.

even though he was told not to; on March 25th she noted that plaintiff needed help closing prep,

did not take any garbage out until closing, and had trouble keeping pace with dishes, and that she

found an object in steak he marinated. (Id. fl 2g.)

In Plaintiff s second performance review, dated April 2010, he received a.,needs

improvement" rating in the categories of food, equipment, and customer service. (Id. n30.)

Triola reviewed a draft of this review, which Chavezhad prepared, and suggested changing

whatever appeared "inconsistent" or could be seen as "picking,, on plaintiff. (Def.,s Rule 56.1

Resp' ffi20-21') For example, with regard to the food category, Triola said he ..would like to see

specific examples that we can back up with documentation." (Id. n2l.) The version of the

evaluation Plaintiff received contained many more details about plaintiff s performance

problems than the version chavezoriginally drafted. Qd n22.) For instance, the evaluation

recounted one incident where Plaintiff had allegedly lost two cases of chicken due to improper

rotating in February 2olo. (Id. n23) Plaintiff and Arrington testified that the cases of chicken

had gone bad, and when Arrington called chavezto inform her of this, chaveztold Anington to

have Plaintiff marinate the chicken anyway. (Id.) But Arrington and plaintiff agreed that it

would be unsafe to prepare the chicken, so they threw it away. (Id.) chavez denied that she

2 A restaurant's "D9ar Diary" is a book that Defendant's managers use to communicate with one another about anything that was going on in the restaurant. (Def.,s Rule 56.1 Resp. ,l]4g.)

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instructed Arrington and Plaintiff to marinate the chicken. (1d) Kubicki testified that she and

Chavez discussed the review with Plaintiff, but Plaintiff denies having participated in such a

discussion. (Id.) In October 2010, Plaintiff received his third performance review, in which he

received an overall rating of "meets expectations," but continued to be rated as o.needs

improvement" in the food category. (pl.,s Rule 56.1 Resp. n32.)

On November 8, 2010, Panithan "Sai" Thanawutthikorn, an Asian male, became General

Manager of the oak Park Restaurant . (Id n35.) on November lg,2}ll,plaintiff received an

evaluation of 'omeets expectations," and following this evaluation, he received his first and only

payincrease. (Def.'sRule56.1 Resp. n37.) OnDecember23,2}ll,plaintiffreceiveda

Performance Discussion for his tardiness, which stated: o'Bob was l5 mins late and did not call.

l2l2ll10 Bob was 15 mins late but did not call . . . at 8:15 to let us know that he will be in at

8:30'" (Pl''s Rule 56.1 Resp. fl 36.) Plaintiff was warned: o'Please do not be late again. This will

be the last write up." (Id.) Plaintiff denies that he was late those days, and he denies receiving

the Performance Discussion. (Id.) Plaintiff s time sheet indicates that on Decemb er 21,2010, he

clocked in at 8: 14 a.m. (Id.) Defendant alleges that Plaintiff reported to work six or more

minutes late 32 times between June 8, 2009 andDecember 23,2010. Qd. n37.) plaintiff denies

these allegations and states that the schedules posted were not always the final schedule. (1d )

Plaintiff s time sheets also indicate that on eleven occasions when plaintiff allegedly committed

a violation of Defendant's policies or procedures, he was not at work. (Def.,s Rule 56.1 Resp. fl

13.)

Kubicki visited the oak Park Restaurant between once a week and once a month on

average and observed Plaintiff on multiple occasions. (Pl.'s Rule 56.1 Resp. n U ) Kubicki

observed issues with Plaintiff s performance: he failed to clean his dish area, washed dishes with

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dirty water, and repeatedly violated food safety standards when he placed chicken and carnitas

on the same table- (Id) Kubicki also noted Plaintiff s repeated failure to complete tasks in a

timely manner. (1d ) Kubicki described PlaintifPs performance as "never satisfacto ry.,, (Id. \

l8') She testified that he would argue with anyone who gave him any constructive feedback,

including herself. (1d.) She also stated that crew members and managers were afraid of him

because of his explosive and condescending demeanor. (1d)

Plaintiff denies Kubicki's allegation that his performance was never satisfactory . ed.)

Kim testified that Defendant considered Plaintiff s performance to be satisfactory in his

November 2010 review. (Id.) Arrington testified that Plaintiff was the .,Ace in his place,, for

Prep, meaning he was assigned to that station during peak hours because he was the strongest

employee in that position. (Id.) Plaintiff also denies Kubicki's allegation that plaintiff would

argue with anyone who gave him constructive feedback and that crew members and managers

were afraid of him. (Id.) Anington testified that Plaintiff never frightened her and that she

enjoyed working with him, as he was always professional and polite . (Id.) Arrington also

testified that Plaintiff was open to feedback if it was constructive, but that Kubicki,s and

Chavez's feedback was not constructive. (Id.1T 19.) Arrington and Arlene Guerrero, a service

Manager, testified that Plaintiff was a team player, competent employee, and a hard worker.

(Def''s Rule 56'1 Resp. 1T36.) Plaintiff always offered his assistance to anyone who needed it

when Arrington was a manager. (Id.) Hewent "above and beyond,', and was a mentor to

Arrington and Guerrero. (Id.)

III. EventsSurroundingptaintiffsTermination

Thanawutthikorn took an eight-week leave of absence in early March 2011, and.

Apprentice Manager Veronica Garcia, a Hispanic female, became the acting General Manager

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for the oak Park Restaurant. (Pl.'s Rule 56.1 Resp. 'tl 38.) Garcia reported to Kubicki that she

had three conversations with Plaintiff because he refused to wear gloves and was eating food

while preparing food, which were both violations of Defendant's and Illinois,s food safety

policies and grounds for termination under Defendant's policies. (Id.) plaintiff denies that he

ate while preparing food. (Id.) on March 4,2011, the oak park Restaurant management team

called and emailed Kubicki with concerns about Plaintiff s attitude and food safety violations.

(Id'1139') The email stated that Plaintiff was not respectful in the workplace; that he left a soiled

towel on the prep table when the health inspector was inspecting the restaurant on February 2g,

20ll; that Thanawutthikorn asked Plaintiff to not eat while prepping on March 1,2011; that

Garcia saw Plaintiff eating bell peppers while cutting them, asked him to not eat while prepping

food, and Plaintiff asked her "what am I eating?" on Marc h4,20ll; that Garcia found a soiled

towel on the prep table againon March 4,2011; and that when Garcia asked plaintiff to check

the dining room and dishes on March 4th, Plaintiff became angry and began throwing dishes and

using profanity, including ..fuck this shit.,, (1d.)

Plaintiff denies that these incidents occurred, and his time sheet indicates that he was not

at work on March 4,2011. (Id.) Guerrero testified that she never saw plaintiff leave a soiled

towel in the prep area, but that it was done all the time by other employees. (Def.,s Rule 56.1

Resp' 11 56') She stated that other employees did not follow procedures all the time, but no one

else's erors were documented as frequently as Plaintiff s. (1d ) Guerrero believed she may have

written up Plaintiff for an incident where Plaintiff was eating a bell pepper while prepping food,

but she did not remember if she saw him eating the bell pepper. (Id. n s7.) She testified that she

would not have documented the incident but for Kubicki's instruction to document everything

Plaintiff did' (Id.) Arrington testified that it was frequent for employees at the oak park

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Restaurant to use profanity and that Plaintiff swore less often than other employees. (1d tT5S.)

Neither Arrington nor Guerrero were aware of any employees being disciplined for using

profanity' (Id') Although the memorandum that accompanied Plaintiff s termination stated that

Guerrero heard Plaintiff say "God damn it," she testified that she never heard plaintiff use

profanity or saw him throw dishes or be insub ordinate. (Id.)

Kubicki forwarded the March 4,2011 email to Triola, seeking advice on how to handle

Plaintiff s behavior' (Pl.'s Rule 56.1 Resp. 1140.) Kubicki testified that Triola instructed her to

initiate Plaintiff s termination and sent her a termination memorandum that summarized

Plaintiff s behavior as described in the March 4th email. (Id.;Def.,sRule 56.1 Resp. !T59.)

Kubicki agreed that PlaintifPs behavior warranted termination and carried out plaintiff s

termination on March ll,2oll. (Pl.'s Rule 56.1 Resp. fltT40-41.) Triola admitted that he was

involved in drafting Plaintiff s termination memorandum, but he testified that Kubicki made the

decision to terminate Plaintiff and that he did not provide any advice as to whether plaintiff

should be terminated. (Def.'s Rule 56.1 Resp. tI60.) Kubicki testified that plaintiff was

terminated based on the incidents described in the termination memorandum and on his overall

performance' (Id.1161.) Triola testified that Plaintiff was terminated for insubordination only,

not for performance reasons. (Id.) Theposition statement Defendant submitted to the Equal

Employment opportunity commission ("EEoc") stated that plaintiff was terminated for

unexcused absences, poor performance, inability to meet Defendant's reasonable expectations,

violations of Defendant's Food Safety Policies and Procedures, and insubordin ation. (Id.)

Iv. Plaintiffs Allegations of Race, National origin, and Age Discrimination

Plaintiff alleges that chaveztreated him differently based on his race, national origin,

age, and disability by keeping him in the kitchen/preparation area, making him wash dishes,

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making him take out the garbage alone, failing to train or promote him, excessively

micromanaging him, making derogatory comments, humiliating him, cutting his hours after he

requested an accommodation based on his disability, and denying him a raise. (pl.,s Rule 56.1

Resp' 'T 50') Chavezmicromanaged Plaintiff by standing over him and watching him complete

tasks that he knew how to do, like marinating meat. (Def.'s Rule 56.1 Resp. fl 5.) She also

examined the avocado peels in the garbage to check to see if plaintiff had wasted any avocado,

and she checked the size of the lettuce that Plaintiff had cut. (Id.) plaintiff alleges that chavez

called him "Bobo," which he did not like. (Pl.'s Rule 56.1 Resp. fl 51.) plaintiff also alleges that

chavezmade fun of his accent. (Def.'s Rule 56.1 Resp. fl 2.) on one occasion, after chavez

terminated chase wright, an African-American emproyee, she told plaintiff .,Bob you,re a

survivor. I',ve been wanting to fire you." (rd.13.) Arrington, who was present for this

comment' heard chavezmake a substantially similar statement. (Id.) onanother occasion,

chavez asked Plaintiff whether he was getting ready to retire. gd n4.) Anington stated that

Chavez showed a preference for younger workers because she believed they could work faster.

(rd.)

Arrington testified that chaveztold,Lloyd Jones, a newly-hired African-American

employee, "I hope you don't get mad, but I like to make black jokes .,, (ld.fl g.) Soon after, with

Arrington's assistance, Jones transferred to Defendant's Elmhurst Restauran t. Qd.) Chavez

made comments about Arrington's half African-American daughter, such as.owhy would you

have your baby with an afro," and "what is wrong with her hair?,, Qd.1l lo.) plaintiff alleges

that racism was rampant at the oak Park Restaurant, and that it was because of this that chavez

held a mandatory meeting where she stated that discrimination against African-Americans would

not be tolerated' (Pl''s Rule 56.1 Resp. tT5l.) chavezwas terminated after two employees

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complained that she made derogatory comments about African-Americans, but Defendant denies

that those complaints were the basis for her termination. (Def.'s Rule 56.1 Resp. n D.)

To be promoted to Kitchen Manager, a crew member must be proficient and cross-trained

on all areas in the back of the restaurant (i.e. Grill and Prep) and know and follow all procedures.

(Pl.'s Rule 56.1 Resp. fl 33.) Defendant alleges that Plaintiff was never promoted to Kitchen

Manager because he was not cross-trained on all areas of the kitchen. (Id. n34.) Plaintiff alleges

that he was denied training that had been promised to him at the time of his hire. (Id.) Arrington

witnessed the training Plaintiff received both at the beginning of his employment and after his

initial management training was stopped. (Def.'s Rule 56.1 Resp.,tT30.) Arrington testified that

Plaintiff was trained on the line sporadically and when there was a line out the door, which made

it difficult for him to be successful. (1d) Chaveztold Arrington that Plaintiff was not going to

be promote d. (Id. fl I .) Plaintiff alleges that Arrington was promoted over him. (pl.,s Rule 56.1

Resp. n 52.) Arrington was promoted to Kitchen Manager on September 14,2009, after

receiving a performance review on April 26,2009, indicating that she met expectations in every

category; she was promoted to Service Manager on November 9,2009. (1d.; Def.,s Rule 56.1

Resp. fl 6.)

Plaintiff also alleges that Ryan Haydon was promoted over him. (pl.'s Rule 56.1 Resp. fl

53.) Haydon, a thirty-year-old Caucasian male, was hired on Novemb er 3,2009,and was

promoted to Kitchen Manager on May 10,2010, after receiving a perforrnance review of ..above

expectations" in all categories. (Id.) DavidResendiz, a twenty-four-year-old Hispanic male,

was hired on May 20,2009, as a crew member; although he was never promoted, he was made a

Kitchen Manager-in-training, a position that precedes a promotion to Kitchen Manager. (Id.n

55; Def.'s Rule 56.1 Resp. n32.) Arrington observed the training that Haydon and Resendiz

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received and testihed that she, Haydon, and Resendiz were trained on virtually all the stations

and received more training and resources than Plaintiff. (Def.'s Rule 56.1 Resp. fl 31.)

Arrington testified that she believes that Plaintiff would have been capable of being a Service

Manager if he had been given the same tools, resources, and support as other employees . (Id.)

Plaintiff also alleges that Kristina Rodriguez was hired after him and was promoted over

him. (Pl.'s Rule 56.1 Resp. fl 54.) Rodriguez, a twenty-seven-year-old Hispanic female, was

hired on July I1,2006, at a Chipotle in Kansas, was promoted to Kitchen Manager on September

28,2009, in Kansas, and then was transferred to the Oak Park Restaurant on October 5,2009.

(Id.) Plaintiff further alleges that Maria Guerrero was promoted over him. (Id.156.) Maria

Guerrero, a twenty-five-year-old Hispanic female, was hired on Novemb er 2,2007, at the River

North Restaurant and was promoted to Kitchen Manager on September 24,20l2,more than a

year after Plaintiff s termination. (Id.)

During the time Plaintiff was employed at the Oak Park Restaurant, seven Hispanics, five

Caucasians, and five African-Americans were terminated for unacceptable work performance;

two Hispanics were terminated for insubordination; and one Caucasian and one multi-racial

individual were terminated for violating company rules. (Id. n 57.)

V. Plaintiffls Health Issues

Plaintiff alleges that he suffers from a congenital heart disorder, retinopathy, kidney

disease, hypertension, and an inguinal hemia. (Id. n 55.) Plaintiff alleges that his congenital

heart disorder made him tired and made it impracticable for him to function as a no,,nal, healthy

person. (Id.n 59.) Defendant alleges that PlaintifPs heart is normal and not diseased because

computed tomography scans of his chest revealed no acute cardiopulmonary disease and

echocardiograms revealed normal systolic function and no regional wall abnormalities. (Id.n

t2

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60') on March 27,2013, Plaintiff was examined by Dr. Matilda Malm at John H. Stroger Jr.

Hospital ("Stroger Hospital") who indicated that his chest pains were unlikely cardiac-related; he

was treated for gastroesophageal reflux disease. (Id.;R. g9-g, Ex. III, pl.,s Stroger Hospital

Medical Records at l-2.)

Plaintiff alleges that his eye disorder prevents him from driving, causes migraines, and

prevents him from reading voluminous materials. (Pl.'s Rule 56.1 Resp. fl 61.) when plaintiff

was first diagnosed with an eye disorder, in or around September 20l0,he could not see out of

his right eye' (Def.'s Rule 56.1 Resp. tl 66.) In September and october 2IlL,plaintiff s vision

problem was treated by Dr. Jeff wongskhaluang, a senior resident in ophthalmology at Stroger

Hospital' (Pl''s Rule 56.1 Resp. 1162.) Dr. wongskhaluang concluded that plaintifps vision

probably did not limit his ability to work and that he was able to serve food on the line, prepare

food in the kitchen, marinate and cut or shred meat, clean the dining room, and read. (pl.,s Rule

56'l Resp' l[][62-6a; R' 89-9, Ex. JJJ, wongskhaluang Dep. at 37:7-39:05.) plaintiff complained

of discomfort when driving at night, so Dr. wongskhaluang recommended that plaintiff refrain

from driving at night' (Pl.'s Rule 56.1 Resp. 1163.) Plaintiff informed Defendant that he had an

eye disease and provided Defendant with a doctor's note stating that plaintiff had ..decreased

vision especially at night and shourd not be driving at night.,, (Def.,s Rure 56.1 Resp. n 67.)

Plaintiff s hours were reduced after he informe d chavezthat he could not drive at night. (Id. n

71') chaveztoldPlaintiff that she would schedule Plaintiff when she could, but..wasn,t going to

change the whole schedule around for one person.,, (1d)

Defendant alleges that in May 2}l},Plaintiff called off from work informing Kubicki

that "they" had found a kidney match and he needed to be tested to make sure it was compatible.

(Pl''s Rule 56'l Resp. fl 65.) Plaintiff denies telling Kubicki this. (Id.) Sometime in2012, after

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Plaintiff s termination, he was treated for a kidney disease by Dr. Albert osei at Stroger

Hospital' (Id' n 66) Dr' osei determined from reviewing plaintifls medical file that plaintiff s

kidneys had not failed and were functioning properly. Qd.) Dr.osei characterized plaintiff s

kidney disease as "not that severe .- (Id.) Plaintiff had no physical limitations due to his kidney

disease; the only implications of the kidney disease were limits on the amount of salt,

phosphorus, potassium, and non-steroidal anti-inflammatories plaintiff could consum e. (Id.)

Plaintiff has been treated by Dr. osei at Stroger Hospital for his hypertension since 2007.

Qd' n 67 ') Dr' osei testified that Plaintiff had no limitations at work due to hypertension, and

that lifting would not affect Plaintiff s blood pressure. (Id 1167.) Dr. osei did not consider

Plaintiff s hypertension to be severe. (Id.) Plaintiff was also treated at Stroger Hospital by Dr.

Michael Davidovich, a general internist, on two occasions, once in April 2009 and once in

September 2010. (rd n68; R. 90-1, Ex. MMM, Davidovich Dep. at 9:17-21) Dr. Davidovich

noted no limitations caused by Plaintiffs hypertension and kidney disease, and only

recommended that Plaintiff exercise as much as possible and eat a low-sodium diet. (pl.,s Rule

56.1 Resp. fl 68.)

Plaintiff alleges he was diagnosed with a hemia in2009and was restricted to lifting no

more than ten pounds' (rd 1f69.) Plaintiff alleges that his hernia made it very difficult for him

to lift and that lifting heavy items caused him extreme pain. (Def.,s Rule 56.r Resp. fl 65.)

Plaintiff informed his managers of the lifting restriction at the time of his diagnosis and

requested that someone else lift heavy items and take out the garbage. (1d.) Kubicki testified

that chaveztoldher that Plaintiff would, at times, refuse help and violate his lifting restrictions.

(Pl''s Rule 56'1 Resp' fl 69') Plaintiff s hernia was surgically repaired on Februar y 2g,2013.

gd.170.)

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on one occasion, on an unspecified date, Plaintiff alleges that he gave chav ez anote

from his doctor and chaveztoldhim that he was terminated. (Def.,s Rule 56.1 Resp. ,.1169.)

Plaintiff asked to speak with someone in Human Resources, andchavezcalled Kubicki, who

told chavezthat she could not terminate Plaintiff. (Id.) chavez burst out of her office, yelling

expletives and saying,o'l carltbelieve this. I can't get rid of this guy for nothing.,, (1d) plaintiff

alleges that chaveztoldhim, "You're sick a lot, I don't think this job is for you,,, and that she

told him on several occasions that he was too sick to work for Defendant. (Id. n 70.) cbavez

denied telling Plaintiff that he was sick a lot and too sick to work for Defend arfi. (Id.)

Arrington testified that on some occasions, chavez threw away doctors, notes plaintiff had

provided' claiming that she did not need them. Qd.1174.) chavezstated that she did not throw

away any of Plaintiff s doctors' notes and instead placed all of the notes in his file. (/d)

When an employee of Defendant has a medical condition which requires an

accommodation' the employee is to bring it to the attention of his General Manager. ed. n72.)

Documentation of accommodations is kept in the employee's confidentia I file. ed.) The Area

Manager and the Human Resources Department are, under Defendant,s policy, always involved

in responding to an employee's request for accommodation; however, Kubicki could not

remember if she discussed with Plaintiff what accommodations he might need,. (ld.fl 73.) on

January ll ' 201I 

, Kubicki told Triola that Plaintiff had not provided documentation of his need

for accommodations. (1d)

vI' Plaintifps compraints about Discriminatory Treatment

Plaintiff alleges that he complained to o'campo, chavez,and Human Resource

Generalist Esther Smiley in late 2009 to early 2lllregarding chavez,s management team

cutting his hours, setting unrealistic time expectations, prohibiting breaks, micromanaging him,

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failing to accommodate his medical restrictions, and failing to train or promote him, and their

discriminatory, harassing, and retaliatory behavior against him. (Pl.'s Rule 56.1 Resp. fl 71.)

Plaintiff alleges he made similar complaints to Kim in early 20t0. (/d.) Defendant denies that

Plaintiff complained to Kim that Defendant failed to accommodate his medical restrictions.

(Def.'s Rule 56.1 Resp. fl 40.) After Chavez learned that Plaintiff had complained to Human

Resources, she told Arrington and other managers that she was "pissed" at Plaintiff for going to

Human Resources and instructed them to document every liule thing Plaintiff did wrong, even if

it was coming in to work one minute late. (Id. n 42.) Arrington testified that Chave z "plotted"

against Plaintiff, and that she had more than twenty conversations in which Chavez said that she

wanted Plaintiff fired because he had complained. (1d.n43.) Chavez denies plotting against

Plaintitf. (Id.)

Kim conducted an investigation of Plaintiff s complaints beginning in February 2010.

(Pl.'s Rule 56.1 Resp. n74.) As part of her investigation, Kim interviewed Plaintiff,

management, and crew members. (Id.) Some of the crew members told her that Plaintiff did not

always greet or address coworkers when arriving to work, fell behind easily, often needed help

closing, and took playful banter between the crew too seriously. (Id.; R. 97-1, Ex. 8, Kim Dep.

at 189: 10-22.) After interviewing and investigating PlaintifPs complaints, Kim alleged that she

saw no signs of discrimination or harassment. (Pl.'s Rule 56.1 Resp. n74.) Kim determined that

Plaintiff was not meeting expectations, following procedures, working with a sense of urgency,

or communicating with his team. (Id.) Kimalso investigated whether Plaintiff s hours had been

drastically cut and learned that Plaintiff requested days off due to his doctor appointments but

expected to receive full-time hours by being scheduled on every day that he had not requested

off, a request that Chavez could not accommodate without sufficient notice. (Id.175;R. 97-1,

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Ex. 8, Kim Dep. at220:23-223:19.) Arrington testified that Plaintiff was one of the few

employees who informed managers of his doctor appointments weeks in advance. (Pl.'s Rule

56.1 Resp. fl 7s.)

Plaintiff complained to Kim that Chavez refused to accommodate his lifting restrictions,

and he requested to meet with then-Area Manager Jacob Sumner. (Def.'s Rule 56.1 Resp. fl 46.)

On February 25,2010, Sumner, Chavez, and Arrington met with Plaintiff to discuss his

complaints. (Id.) Plaintiff alleges that Sumner apologized for lapses and inconsistencies in his

training, told Plaintiff "we dropped the ball on your training," and instructed Chavez to crosstrain Plaintiff and abide by his medical restrictions. (Id.) After the meeting with Sumner,

Arrington saw Plaintiff lifting garbage (weighing up to 50 or 60 pounds), cases of steak

(weighing approximately 30 pounds), and cases of lettuce (weighing approximately 30 pounds).

Ud. n77.) Guerrero also saw Plaintiff carrying garbage and dishes (weighing 10 to 20 pounds)

without ellryhelp. (Id.)

Plaintiff filed a Charge of Discrimination with the EEOC on March 5,2010. (Id n 44.)

Plaintiff gave Chavez a copy of the EEOC Charge. (Id.) Plaintiff alleges that after he filed his

EEOC Charge, he was micromanaged more often and it was impossible for him to take breaks.

(Pl.'s Rule 56.1 Resp. n76.) Plaintiff alleges that Chavezrequired him to sit with her for as

much as ninety minutes per shift, which caused him to fall behind on his prep. (Def.'s Rule 56.1

Resp. fl 50.) Chavez also forced Plaintiff to work on the line at the busiest times of the day

without training. (Id. n 51.) Defendant alleges that Chavez spent more time with Plaintiff

attempting to train him properly and prepare him for future development and cross training, as

Chavez was instructed to do. (Id.) Chaveztestified that the training she gave Plaintiff was not

the cause of him falling behind on his prep. (Id.)

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Arrington testified that when chavezleamed about plaintiff s EEoc charge, she freaked

out and ranted about it and said that Plaintiff "had to go." (Id 1145.) chavezdenied that she said

Plaintiff had to go. (Id.) Kubicki told Arrington and Guerrero to document any incident

involving Plaintiff and she told Guerrero that Plaintiff had filed a lawsuit against Defendant.

Qd' n fi) Arrington testified that Defendant's managers were "looking for stuff, on plaintiff to

document' (Id' n 54) Guerrero testified that Plaintiff was under the microscope and that it was

"ridiculous documenting everything" because they did not do that with any other employee. (/d

''l155') Managers typically write in employees' Development Joumals every month, and in the

eleven months that chavezhadworked with Plaintiff before February 2llL,managers had

written in Plaintiff s Development Joumal five times. (Id. 11 4s.) Between February 27,2010,

and March 23,2}lo,however, Chavezand other managers made six entries in plaintiff s

Development Journal about Plaintiff s performance errors. (Id. 1147.) In February and March

2010' there were 17 Dear Dia.y entries regarding Plaintiff s alleged performance problems. (^Id

n 49') After March 2010, there were no additional Dear Diary entries regarding plaintiff until

December 2010. (Id.)

After Plaintiff filed his EEoc charge, Kim offered to transfer him to a different

restaurant' but Plaintiff declined the offer. (Pl.'s Rule 56.1 Resp It76.) plaintiff alleges that he

declined the offer because he felt that transferring would simply have a ..Band-Aid effect,, rather

than solving the problem of discrimination at the oak park Restaurant . ed.) Kim alleges that

she investigated but did not find any change in treatment towards plaintiff by the management

team after he filed his first complaint. (Id.) Kimtestified that after plaintiff filed his EEoc

Charge, Triola took over the investigation from her, and her involvement in plaintiff s case

ended. (Id.)

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Triola monitored Plaintiff s performance after he filled his EEOC charge. (Def.'s Rule

56.1 Resp. fl 63.) One of Triola's responsibilities as Human Resources Director was to act as the

liaison with outside counsel on EEOC charges, which included gathering documents and sending

updates for complaining employees' files. (1d. n 64.) On January 3,2011, Triola asked Kubicki

for Plaintiff s most recent Development Journal entries. (Id. n $) On January 13,2011, Triola

told Kubicki he was working with Defendant's attomey on drafting a Development Journal entry

"to deal with the attendance issue" and that Defendant's attomey would be interviewing Kubicki

and Thanawutthikom "with the sense 'this won't end well with Bob' - we want to be prepared."

(Id.) On January 20,2011, Triola asked Thanawutthikorn to send Plaintiff s Development

Journal, work schedules, and the Dear Diary to Defendant's counsel . (Id ) On March 8, 201l, in

response to Kubicki's report that only one Development Joumal entry had been completed since

the beginning of the year, Triola responded, "Yah, not good." (Id.) Triolacould not recall an

employee other than Plaintiff for whom he continued to send records to outside counsel after

Defendant filed a position statement with the EEOC. (Id n 64.)

VII. Plaintiffs Workplace Injury

Plaintiff claims that he fell while taking out the garbage on Decemb er 23, 2010. (Id. n

79.) Defendant alleges that Plaintiff first reported his injury to Thanawutthikorn on December

26,2010. (Id.) Plaintiff alleges that he told Thanawutthikom about his injury the day it

occurred. (Id.;R.97-1,F;x.3, Pl.'s Dep. at 199:12-24) Defendant alleges that Thanawutthikorn

informed Kubicki that he "went to call in the claim and [Plaintiff] told him he did not want him

to. [Plaintiff] said he contacted his doctor and he diagnosed it over the phone as Sciatica and

prescribed Vicodin." (Pl.'s Rule 56.1 Resp. n79.) Plaintiff denies telling Thanawutthikorn that

he did not want him to call in the claim. (Id.; R. 97 -1, Ex. 3, pl.,s Dep. at I 99: I 5-200: l.)

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Thanawutthikorn reported the worker's compensation claim on January 14,2011. (Pl.'s Rule

56.1 Resp. n79.) Plaintiff was treated by Concentra Medical Center as a result of this claim and

was diagnosed with a hipithigh sprain/strain. (Id. tT 80.) Defendant paid for Plaintiff s

subsequent doctor's visits and treatment. (1d.) The treating physician and physical therapist

imposed restrictions on Plaintiff s activities, including lifting, prolonged standing/walking

pushing/pulling, squatting, and climbing stairs/ladders. (Def.'s Rule 56.1 Resp. fl 78.)

Concentra faxed the documents to the restaurant and Plaintiff also gave them to

Thanawutthikom. (1d.)

In early January 2011, Plaintiff complained to Kubicki that Thanawutthikorn refused to

accommodate his injury because Thanawutthikorn was racist. (Pl.'s Rule 56.1 Resp. n77.)

Kubicki alleges that she and her supervisor, Ed Berg, investigated Plaintiff s complaint and

learned from Plaintiff that he respected Thanawutthikorn and thought that he had improved the

restaurant. (Id.) Plaintiff denies telling Kubicki that he respected Thanawutthikom or thought

that Thanawutthikorn had improved the restaurant. (1d) Plaintiff alleges that because

Thanawutthikorn refused to accommodate his medical limitations, Plaintiff s treating physician

told Defendant that Plaintiff could not work until he was released. (Def.'s Rule 56.1 Resp. n79.)

Plaintiff did not work from January 2I,2011 until February 9,2011 as a result of his injury.

(Pl.'s Rule 56.1 Resp. fl 80.) On February 10,2011, Plaintiff retumed to working a normal

schedule. (1d ) Upon his return, Plaintiff asked Thanawutthikorn to be paid for the days he

missed. (Def.'s Rule 56.1 Resp. t|80.) Plaintiff was discharged from treatment on or about

February 25,2011. (Pl.'s Rule 56.1 Resp. fl 80.)

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PROCEDURAL HISTORY

Plaintiff initiated this action on February 2,2012. (R. l, compl.) on January 15,2013,

Plaintiff filed his ten-count amended complaint. (R. 48, Am. compl.) In count I, plaintiff

alleges discrimination on the basis of race in violation of Title vlr, (id.flfl 33-3s); in count II, he

alleges discrimination on the basis of national origin in violation of Title vrr, (id.,tffl 3g-aa); in

count III, he alleges discrimination on the basis of race, color, and ethnicity in violation of

Section 1981, (id' ll a5-a\; in count IV, he alleges retaliation in violation of ritle v1, (id. nn

50-57); in count v, he alleges discrimination on the basis of age in violation of the ADEA, (id.

flfl 58-63); in count vI, he alleges retaliatory discharge in violation of Illinois state law, (id fln

6a'69); in Count vII, he alleges retaliation in violation of the ADEA, (id.flIt70-76);in Count

vIII' he alleges discrimination on the basis of disability in violation of the ADA, (id nn77-g3):

in count IX, he alleges failure to accommodate in violation of the ADA, (id.lllg4-gs); and in

count X, he alleges retaliation in violation of the ADA, Qd nngg-g5). Defendant answered

Plaintiff s amended complaint on January 2r,20r3,(R. 50, Ans.), and moved for summary

judgment on August 26,2073,(R. 82, Def.'s Mot. Summ. J.). plaintiff responded to Defendant,s

motion for summary judgment on october 4,2013,(R. 96, pl.,s Resp.), and filed a corrected

memorandum of law in opposition to summary judgment on octob er 9,20r3,(R. l0l, pl.,s

Mem')' Defendant replied to Plaintiff s memorandum in opposition to summary judgment on

October 25,2013. (R. 102, Def.,s Reply.)

LEGAL STANDARDS

Summary judgment is appropriate when the record shows that there is no genuine issue as

to any material fact and that the moving party is entitled to ajudgment as a matter of law. Fed.

R' civ' P' 56(a)' "A disputed fact is 'material' if it might affect the outcome of the suit under

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governing law." Hampton v. Ford Motor co.,56l F.3d70g,713 (7thcir. 2009) (citing

Anderson v' Liberty Lobby, lnc.,477'{J.s.242,248 (1986)). A genuine issue of material fact

exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving

party'" Anderson,477 u.s. at248. In determining whether a genuine issue of material fact

exists' the court must view the evidence and draw all reasonable inferences in favor of the party

opposing the motion ' Id. at 255; omnicare, Inc. v. unitedHealth Grp., Inc., 629 F .3d 697, 704

(7th cir' 2011) ("[D]istrict courts are not required to draw every requested inference; they must

only draw reasonable ones that are supported by the record.") The moving party has the initial

burden of demonstrating that it is entitled to judgment as a matter of law. celotex corp. v.

catrett'477u's'317,322(1986); ll'heelerv.Lowson,539F.3d 629,634(7thcir.200g). The

moving party o'canprevail just by showing that the other party has no evidence on an issue on

which that party has the burden of proof." Brazinski v. Amoco petroleum Additives Co.. 6 F.3d

1176,1183 (7th Cir. 1993).

once the moving party has met this burden, the nonmoving party must ..come forward

with specific facts demonstrating that there is a genuine issue for trial.,, ll'heeler,539 F.3d at

634' "The existence of a mere scintilla of evidence, however, is insuffrcient to fulfill this

requirement' The nonmoving party must show that there is evidence upon which a jury

reasonably could find for the plaintiff. " Id. (citing Anderson, 477 rJ.s. at 25r-52.) The

nonmoving party may not rely on o'mere conclusions and allegations,, to create a genuinely

disputed issue of material fact. Balderston v. Fairbonks Morse Engine Div. of coltec Indus.,32g

F'3d 309' 320 (Tthcir' 2003)' Instead, the nonmoving party "must make a showing sufficient to

establish any essential element of her cause of action for which she will bear the burden of

persuasion at tnal'' smith ex rel. smith v. severn, l2g F.3d, 419, 425 (7th cir. 1997); see also

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celotex' 477 u 's' at 322-23. weighing evidence and making credibility decisions are jury

functions, and it is not appropriate for a judge to assume those functions when ruling on a motion

for summary judgment. Anderson,477 u.S. at 255. Accordingly, the court ..appl[ies] the

summary judgment standard with special scrutiny to employment discrimination cases, which

often turn on issues of intent and credibi lity." Krchnavy v. Limagrain Genetics Corp.,2g4 F .3d

87 l, 87 5 (7th Cir. 2002).

on summary judgment, the court limits its analysis of the facts to the evidence that is

presented in the parties' Local Rule 56.1 statements. 

^See Bordelon v. chi. sch. Reform Bd. of

Trs''233 F'3d 524,529 (7thcir. 2000) (referring to Local Rules t2(M)and (N), which were

replaced by Local Rule 56)' To adequately dispute a statement of fact, the opposing party must

cite specific support in the record; an unsubstantiated denial or a denial that is mere argument or

conjecture is not sufficient to create a genuinely disputed issue of material fact. Malec v.

sanford' 191 F'R'D' 581, 585 (N.D. Ill. 2000); see also Judson Atkinson candies, Inc. v. LatiniHohberger Dhimantec, 529 F.3d 371,3g2 n.2 (7thCir. 200g).

ANALYSIS

r' 

Iltll*t Race, National origin, and Age Discriminarion claims (counts I, rr,III,

In counts I, II, III, and v, Plaintiff alleges that, in failing to promote or train him and in

terminating his employment, Defendant discriminated against him based on his race, national

origin, and age in violation of Title vII, Section lggl, and the ADEA. (R. 4g, Am. compl. lffl

35' 47 ' 60') Title vII and Section l98l prohibit employers from discriminating against their

employees on the basis of race or nationar origin. 42 u.s.c. g 2000e-2(a)(l); 42 u.s.c. g lggl;

see Potton v' Indianapolis Pub. sch. 8d.,276 F.3d 334, 337-3g (7th cir. 2002). similarly, the

ADEA prohibits employers from discriminating against their employees on the basis of age. 29

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u'S'C' $ 623(a)(l). Discrimination claims under Title vII, Section 19g1, and the ADEA are

analyzed in the same manner, and this court will thus analyzeall three claims together. Atanus

v. Perry,520 F.3d 662,671(7th Cir. 200g); patton,276F.3dat 33g.

A plaintiff may prove discrimination under Title VII, Section l9gl, and the ADEA

through the direct or indirect methods of proof. Atanus,52o F.3d at 671; Brewer v. Bd. of Trs of

univ' of lll'' 479 F '3d 908, 915 (7th cir. 200T.3 A plaintiff may prevail under the direct method

of proof either by presenting direct evidence of intentional discrimination or o.by constructing a

'convincing mosaic' of circumstantial evidence that 'allows a jury to infer intentional

discrimination by the decision-maker."' Rhodes v. Ill. Dep't of rransp.,35gF.3d 49g, 504 (7th

Cit ' 2004) (quoting Troupe v. Moy Dep't Stores Co. , 20 F .3d 734, 737 (7thCir. I 994)). If a

plaintiff relies on circumstantial evidence, the evidence "must point directly to a discriminatory

reason for the employer's action." 1d. (quotin g Adams v. wal_Mart stores, Inc., 324F.3d 935,

939 (7th cir' 2003))' circumstantial evidence that can form a convincing mosaic fall into three

categories: (1) suspicious timing, ambiguous statements, "behavior toward or comments directed

at other employees in the protected group, and other bits and pieces from which an inference of

discriminatory intent might be drawn," Troupe,20 F.3d at736;(2) evidence.,that similarly

situated employees were treated differentl y," Coleman v. Donahoe, 667 F.3d g35, g60 (7th cir.

3 

was 

The Supreme court has held that to prevail under the ADEA, a plaintiff must show that age the but-for cause of the adverse employment action. 

-brox 

u's' v. FBL Fin. iirus., lnc.,557 167' 180 (2009) ' Post-Gro,ss, the Sevlnth circuit 

"orr1iru., methods when to apply the direct and indirect

604 (Tthcir' 

analyzingADEA claims. see Fleishman v,. continrntai iar. ci., agaF.3d 59g, 2012) ("we have continued to apply ti ucoonnell Douglasburden-shifting framework in summary judgment 

question Gross 

cases that proceea *a".irr. indirecimethoJ of proof a explicitly left open',) (citing srnyrn iyi)re, 5gg F.3d 50r 200e))); Hnizdor ,506_ou7th cir.

,. !y!yi! will 

tioutiiigs,.rn::,413 F 6;;; ils, st7 (7th cir. 20tt); Mach v. cntv. sherffi s80 F.3d 4g5,4sg"ornSrl.?goririprvrry 

also Yee the direct meth; of proof); see v. UBS O'Connor, ZZC No.'07 c 7150,zot'o"itl 

2010) rcqogz, at*r7 (N.D. ilr. Apnr22,

presenting 

('oGross did not equate the burden of proof in an eopa case with the method of that proof,,,).

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2012) (quoting Volovsekv. Wisc. Dep't of Agr., Trade & Consumer Prot.,344 F.3d 680,689 (7th

Cir. 2003)); and (3) "evidence that the employer offered a pretextual reason for an adverse

employment action," Coleman,667 F.3d at 860 (intemal citations and quotation marks omitted).

ooEach type of evidence is suffrcient by itself (depending of course on its strength in relation to

whatever other evidence is in the case) to support a judgment for the plaintiff; or they can be

used together." Troupe,20 F.3d at736.

A plaintiff that has failed to establish discriminatory intent under the direct method may

nonetheless prevail under the indirect method of proof-the burden-shifting approach first

established in McDonnell Douglas Corp. v. Green,4l I U.S. 792 (1973). Brewer, 479 F.3d at

915. Under the indirect method of proof, a plaintiff must first establish aprimafacie case of

discrimination. McDonnell Douglas,4l I U.S. at802. To establishaprima.facie case of

discrimination, a plaintiff must demonstrate that: (l) he is a member of a protected class; (2)he

was meeting the defendant's legitimate performance expectations; (3) he suffered an adverse

employment action; and (a) the defendant treated similarly situated employees outside of the

protected class more favorably. Fane v. Locke Reynolds, LLP,48O F.3d 534, 538 (7th Cir.

2007). Once a plaintiff establishes aprimafacie case, he creates a rebuuable presumption of

employment discrimination, and the burden of production shifts to the defendant'oto articulate

some legitimate, nondiscriminatory reason" for its actions. Hong v. Children's Mem'l Hosp.,

993 F.2d 1257, 126l (7th Cir. 1993) (quoting McDonnell Douglas,4l 1 U.S. at 802). If the

defendant cannot satisfy its burden, summary judgment will be denied. See Wittaker v. N. Ill.

Univ., 424 F.3d 640, 647 (7th Cir. 2005). If the defendant does provide noninvidious reasons for

its actions, the burden shifts back to the plaintiff to show that the articulated reasons were

pretextual. Hong,993 F .2d at 1261.

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The Seventh circuit has found that the second and third categories of circumstantial

evidence under the direct method (the similarly situated inquiry and pretext inquiry) are similar

to the requirements to establ ish a prima facie caseunder the indirect method, and thus the

court's 'oanaryses overrap." coreman, 667 F.3dat g60 n.g (citing Egonmwan v. cook cnty.

sheriff's Dep't' 602F'3d 845, 85 I (7thcir. 2010)) ; see also Hemsworth v. euotesmith.com,

Inc' ' 476 F '3d 487 ' 4go-gl (7th cir' z}}7)(explaining that the indirect method ..involves 

a subset

of circumstantial evidence (including the disparate treatment of similarly situated employees)

that conforms to the prescriptio n of [McDonnell Douglosf,,).

Plaintiff alleges that he was subjected to three adverse employment actions: (l) he was

terminated; (2)he was denied training opportunities; and (3) he was denied promotions. (R. l0l,

Pl''s Mem' at3-4' 13') Defendant argues that the court should not consider plaintiff s failure to

train claim because he did not allege failure to train in his EEoc charge or his compraint. (R.

82- l ' Def''s Mem' at 7 ') Adiscriminatory failure to train claim is distinct from a failure to

promote claim' and therefore, failure to train must be pleaded as a separate wrong. Maaroufv.

walker Mfg' co" Div' of Tenneco Automotive, Inc.,2lo F.3d750,753(7th cir. 2000) (citing

Paffird v' Herman,l48 F'3d 658,669 (7thcir.lggg)). plaintiff alleged in his EEoc charge

that his "management training was stopped but the training for younger, non-Black, nonNigerian Management Trainees continued.,, (R. 4g-r, Ex. A, EEoc charge at r.) Thus, the

court finds that Plaintiffs EEoc charge sufficiently alleged a failure to train claim. In addition,

Plaintiff alleges in his complaint that "[w]ithin several weeks of his start, chipotle terminated

[Plaintiff s] management training ," andthat ao'younger, caucasian, and presumably Americanbom employee who started as Associate/Management Trainee at the same time as [plaintifl was

allowed to continue training and ultimately promoted to General Manager of a different area

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Chipotle restaurant." (R. 48, Am. Compl.'l|fl 12-13.) Plaintiff explicitly incorporates these facts

into Counts I, II, III, and Y. (Id. flfl 33, 39,45,58.) Viewing these facts and drawing all

inferences in favor of Plaintiff, the Court finds that Plaintiff pleaded a discriminatory failure to

train claim in the complaint, and the Court now tums to analyze the merits of Defendant's

motion for summary judgment on the claim.

A. Whether Plaintiffs termination was discriminatory

Plaintiff argues that f," ,uffel"d an adverse employment action when he was terminated.

(R. 101, Pl.'s Mem. at 13.) Plaintiff seeks to avoid summary judgment on his discriminatory

termination claim via the direct method of proof by supplying circumstantial evidenc e. (Id.)

Specifically, he argues that the facts give rise to an inference that Defendant's reasons for

terminating him are pretexual. (Id.) "The employee may succeed in his demonstration of pretext

by offering evidence that the employer's ostensible justification is unworthy of credence."

Adreani v. First Colonia Banlcshares Corp. , 

I 54 F.3d 389, 396 (7th Cir. 1 99S) (internal citations

and quotation marks omitted). The employee may accomplish this showing with evidence

"tending to prove that the employer's proffered reasons are factually baseless, were not the

actual motivation for the discharge in question, or were insufficient to motivate the discharge."

Id. (quotingTesterman v. EDS Technical Prods. Corp.,98 F.3d 297,303 (7th Cir. 1996)).

"Although general averments of adequate performance are insufficient to create a factual issue

on summary judgment even when corroborated by statements of supervisors or co-workers, a

plaintiff may create an issue of fact by specifically refuting facts that allegedly support the

employer's claim of performance deficiencies." Dey v. Colt Constr. & Dev. Co.,28F.3d 1446,

1460 (7thCir.1994).

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Defendant states that it terminated plaintiff because of his ,.poor performance,

insubordination, and failure to follow basic chipotle policies and procedures.,, (R. g2-1, Def.,s

Mem' at 9') The position statement Defendant submitted to the EEoc states that plaintiff was

terminated for unexcused absences, poor performance, inability to meet Defendant,s reasonable

expectations, violations of Defendant's Food Safety policies and procedures, and

insubordination' (R' 101, Pl.'s Mem. at l5; R. g7-4,Ex. 33, Def.,s position Statement.) The

termination memorandum Plaintiff received described several incidents in which plaintiff

violated Food Safety Policies and was insubordinate. (R. 97-3,Ex.25, Termination Mem.)

Plaintiff denies that any of the events described in the termination memorandum occurred-he

denies leaving a soiled towel in the prep are on February 2g,2ol1; he denies eating a bell pepper

while cutting it on March 1,2071; and he denies cursing at Garcia and thowing dishes on March

4'2011' (R' 101' Pl''s Mem' at 13.) Plaintiff points to the testimony of Guerrero, who said she

never saw Plaintiff leave a soiled towel in the prep area and could not remember if she saw

Plaintiff eat a bell pepper while cutting it. (Id. at 14.) The termination memorandum states that

Guerrero heard Plaintiff say "God damn it," but Guerrero testified that she never heard plaintiff

use profanity and never saw him throw dishes or be insubordinate. (Id.) plaintiff also denies the

occu,'ence of other incidents that Defendant notes as examples of his poor performance, such as

the guacamole incident, (Pl.'s Rule 56.1 Resp. 112l),and the incident involving two cases of

chicken' (Def''s Rule 56'1 Resp. n23). Plaintiff points to Arrington,s testimony describing

Plaintiff as an "Ace in his Place" to further counter Defendant,s allegations that he was not

meeting Defendant's expectations. (Pl.'s Rule 56.1 Resp. fl 1g.) plaintiff also offers Arrington,s

testimony that Plaintiff never frightened her and that he was always professional and polite to

counter Defendant's assertions that Plaintiff was insubordin ate. (Id.) Finally, plaintiff counters

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Defendant's assertions that Plaintiff had several unexcused absences by providing time sheets

indicating the times he clocked in, (id. tT 36), and testimony that the schedules posted were not

always the final schedules, (id. n3D.

The evidence Plaintiff offers to prove that Defendant's reasons for firing him are

pretextual goes beyond general assertions of adequate job performance and directly addresses the

specific performance deficiencies identified by Defendant. The Court thus finds that Plaintiff

has provided sufficient evidence to raise a factual issue as to whether Defendant's justifications

for terminating him are credible or merely a pretext for discrimination. See Dey,28 F.3d at 1460

(finding that a plaintiff who denied that certain events ever took place and specifically addressed

the complaints of uncooperative behavior made by her employer presented enough evidence to

permit a reasonable finder of fact to infer that the employer fabricated the reason for her

dismissal).

Defendant attempts to refute Plaintiff s pretext argument by asserting that Plaintiff has

presented no evidence that Kubicki or Triola, the individuals who made the decision to fire

Plaintiff, did not believe the events articulated in the termination memorandum. (R. 102, Def.'s

Reply at 9.) If the employer honestly believed its reasons for discharging the employee, the

employee cannot meet his burden of proving pretext. Gordon v. United Airlines, Inc. , 246 F .3d

878, 889 (7th Cir. 2001). This is true even if the employer's reasons for discharging the

employee are "foolish or trivial or even baseless." /d (quotin g Brill v. Lante Corp., I 19 F.3d

1266, 1270 (7th Cir. 1997). "A determination of whether a belief is honest is often conflated

with analysis of reasonableness." Flores v. Preferred Technical Grp., 182 F.3d 512, 516 (7th

Cir. 1999). A court therefore does not have to take an employer at its word. Gordon,246 F .3d

at 889. "When an employee provides 'a detailed refutation of events which underlie the

29

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employer's negative performance assessment,' the employee demonstrates ,that the employer

may not have honestly relied on the identified deficiencies in making its decision .,,, rd.(quoting

Dey'28 F'3d at 1460-61). As discussed above, Plaintiff has provided a detailed refutation of the

specific performance deficiencies identified by Defendant and, consequently, has demonstrated

that Kubicki and Triola may not have honestly relied on the deficiencies outlined in the

termination memorandum in making their decision to terminate plaintiff.

Because the evidence may allow afactfinder to "reasonably infer that unlawful

discrimination was the true motivation," Adreoni,l54 F.3d at3gl,plaintiff has met his burden

under the direct method and avoided summary judgment on his discriminatory termination claim.

B' whether Defendant's decision to not promote and train plaintiffwas discriminatory

Plaintiff also alleges that he suffered adverse employment actions when Defendant

refused to promote and train him. (R. l0l, Pl.'s Mem. at3-4.) plaintiff groups these two

adverse actions together and presents the same circumstantial evidence to show that Defendant,s

denial of promotion and training opportunities was discriminat ory. (Id.) First, plaintiff argues

that throughout the time chave z managedhim, she made statements that give rise to an inference

that she did not train or promote him because of his race, national origin, and age. (Id. at 5.)

Plaintiff points to the following statements chavez made to him: (l) chavez explicitly stated that

Plaintiff was not going to be promoted; (2) chavezcalled plaintiff ..Bobo,,, which he alleges is a

monkey's name' and made fun of his accent; (3) chavez asked plaintiff whether he was getting

ready to retire; and (a) after chavezhadterminated an African-American employee, she told

Plaintifi "Bob, you're a survivor' I've been wanting to fire you.,, (Id.) Defendant argues that

chavez's comments were simply stray remarks that were not made contemporaneously with any

adverse employment action. (R. 102, Def.,s Reply at 4_5).

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"Isolated comments that are no more than 'stray remarks' in the workplace are

insufficient to establish that a particular decision was motivated by discriminatory animus,,,

unless the remark was made by the decision-maker "(l) around the time of, and (2) inreference

to, the adverse employment action." Merillat v. Metal Spinners, Inc., 470 F.3d 685, 694 (7th Cir.

2006) (quoting Hunt v. City of Markham, Ill.,2l9 F .3d 649, 652 (7th Cir. 2000)). Because

Plaintiff has not provided evidence to prove that Chavezmadethese comments during or near

any denial of a promotion or training opportunity, the Court cannot find that these comments

alone are sufficient to establish a discriminatory inference. However, the Court must examine

PlaintifPs circumstantial evidence as awhole. Hobgoodv. Ill. Gaming 8d.,731 F.3d 635,644

(7th Cir. 2013) ("[T]ogether with other facts, evidence that would be insufficient standing alone

can be sufficient to defeat summary judgment if a reasonable jury ultimately could conclude that

the plaintiff was the victim of illegal discrimination or retaliation.") (internal citations and

quotation marks omitted).

Plaintiff also alleges that Chavezmade statements that give rise to an inference that she

was biased against African-Americans generally. (R. 101, Pl.'s Mem. at 5.) For example,

Plaintiff alleges that Chaveztold a newly-hired African-American employee, ..I hope you don,t

get mad, but I like to make black jokes," and that Chavezmadederisive comments about

Arrington's daughter, who is half African-American. (Id. at6.) Further, an investigation leading

to Chavez' s termination found that two employees had complained that Chavezmade racial

jokes about African-Americans. (Id.) The Court recognizes the comments Chavez directed at

other employees in the protected group as one type of circumstantial evidence. Troupe,20 F.3d

at736.

3l

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Plaintiff next argues that the documentation Defendant relies on to support its reasons for

not training or promoting Plaintiff contain serious flaws that give rise to an inference of pretext.

(R' 101' Pl"s Mem' at 6') Defendant claims that Plaintiff was not promoted because he was not

qualified and was not meeting Defendant's expectations. (R. g2, Def.,s Mem. at 5-7.) plaintiff

argues that on eleven occasions on which he allegedly committed violations of Defendant,s

policies and procedures' he was not at work, and therefore these write-ups were fabricated. (R.

l0l' Pl''s Mem' at 6') Defendant attempts to explain this discrepancy by asserting that..it is

evident that chipotle's management simply documented instances of plaintifps improper

behavior and poor performance in days following the poor performance.,, (R. 102, Def.,s Reply

at7.)

Additionally, Plaintiff provides circumstantial evidence regarding his performance

Discussions' Plaintiff alleges that the five Performance Discussions Defendant claims were in

Plaintiff s personnel file were not prepared in accordance with Defendant,s policies because they

were not signed by Plaintiff or a manager and Plaintiff never received them. (R. l0l, pl,s Mem.

at 6') Plaintiff cites Rudin v. Lincoln Land Cmty. coll. , 420 F .3d 7 12, 723 (7th cir. 2005), for

the proposition that a defendant's failure to follow its own internal procedures can point to a

discriminatory motivation' (Id.) Defendant argues that Rudindoes not apply because in that

case there were written guidelines that the employer failed to follow, whereas here there is no

written policy requiring Defendant's managers to obtain an employee,s signature on all

Performance Discussions' (R. 102, Def.'s Reply. at 7.) Although there is no written policy,

Plaintiff has provided the deposition testimony of two Human Resources employees who both

explained that under Defendant's poricy, a manager is supposed to obtain an emproyee,s

signature on performance discussions. (R. 97-r, Ex. g, Kim Dep. atgT:06_20; R. 97_r, Ex. r0,

32

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Triola Dep' at 69:14-70:03.) Defendant's distinction between this case and Rudinis therefore

immaterial because there is a policy in place. Therefore, Defendant,s failure to follow its policy

regarding the Performance Discussions is evidence of pretext that the court will consider.

Plaintiff additionally alleges that the circumstances surrounding his May 2010

performance evaluation suggest that it was prextual. (R. 101, pl.,s Mem. at 7.) AtTriola,s

request' chavez added more details to Plaintiffs evaluation so that it would not appear as though

she was "picking" on Plaintiff. (Id. at8.) Plaintiff alleges that one specific incident described in

the revised evaluation-where Plaintiff allegedly lost two cases of chicken due to improper

rotating-was false' (Id') Plaintiff argues that this "raises a question of whether, based on

Triola's instructions, chavez added information to the evaluation that she knew to be false.,, a

(Id') Yiewing Plaintiff s circumstantial evidence of pretext as a whole, the court finds that

Plaintiff has created a factual issue as to whether Defendant's reasons for not promoting or

training him are credible or pretexual . see Hobgood,73l F.3d at 644; patmythes v. city of

Janesville,l8l F. App'x 596,5gB (7th cir. 2006)("Even if the plaintiff s evidence does not

compel the conclusion that his employer discriminated against him, if there is a question of fact

as to the believability of an employer's purported reasons for an employment decision then at a

bare minimum it suffices to defeat the employer's summaryjudgment motion.,,) (quoting Rudin,

420F.3d at726) (internal quotation marks omitted)).

4 Plaintiffalso argues-thgJ the dispute over what position plaintiff 

evidence was hired for is further of pretext' (R'101, Pl.'s Mem. at4,9.) Defendant claims that plaintiff 

crew member' (R' was hired as a 102, Def"s Reply at 8), and Defendantis records indicate that plaintiff title when s job he was hired was o'cashier," gi. a+-s,Er. Nj*proyee Informatio, ro.-1. plaintifi however' alleges that he was hired u. u'g"n"rrt (R' 101' Pl''s Mem' -*ug", #r"L on u ruri-iru.t to management. at 9') Plaintiff and-Defendant 

"g*; ttrat ptaintifps 

shortly after Plaintiff training was stopped started y9+ing. (rd.;R. 

that it stopped 

t0z, ief.'s n"pty at g.) Defendant never claims training Plaintiff be.ur*" t "*u. t irLJ 

""ry ", finds no evidence crew member, and the Court thus of pretext as to why D"t{ql.t"pp.;,lining plaintiff disagreement in the parties, over the exact position for which praintiff was hired.

JJ

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Considering all of Plaintiff s circumstantial evidence together-the evidence of pretext

and Chavez's statements toward Plaintiff and other African-Americans-the Court finds that

Plaintiff has constructed a convincing mosaic of circumstantial evidence that allows a jury to

infer intentional discrimination. See Hobgood,731 F.3d at 644; Troupe,20 F.3d at 736.

Accordingly, Plaintiff s race, national origin, and age discrimination claims (Counts I, II, III, and

V) survive summary judgment.

II. Plaintiffs Disability Discrimination and Failure to Accommodate Claims (Counts

VIII and IX)

In Count VIII, Plaintiff alleges that he was discriminated against based on his disabilities

in violation of the ADA when Defendant failed to promote or train him and when Defendant

terminated his employment. (R. 48, Am. Compl. t|80.) In Count IX, Plaintiff alleges that

Defendant failed to reasonably accommodate his disabilities in violation of the ADA. (Id. ng6.)

The ADA prohibits employers from discriminating against employees on the basis of their

disability. 42U.5.C. $ 12112(a). DiscriminationundertheADAincludesoonotmaking

reasonable accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or employee," unless the employer..can

demonstrate that the accommodation would impose an undue hardship on the operation of the

business." 42 U-S-C. $ 12112(b)(5XA). Thus, "the ADA requires employers to reasonably

accommodate the limitations of [their] disabled employees." E.E.O.C. v. Sears, Roebuck & Co.,

417F.3d789,797 (7thCir.2005). ToinvokeprotectionundertheADA,aplaintiffmustfirst

prove that he is disabled within the meaning of the ADA. Cassimy v. Bd, of Educ. of Rocffird

Pub. Sch., Dist. No. 205,461 F.3d932,935-36 (7th Cir. 2006).

34

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A. Whether Plaintiff s impairments are disabilities

The ADA defines a disability as: (A) a physical or mental impairment that substantially

limits one or more major life activities of the individual; (B) a record of such an impairment; or

(C) being regarded as having such an impairment. 42 U.S.C. $ 12102(1). Notably, the ADA

was amended in 2008 to make the standard for qualiffing as disabled more inclusive. ADA

Amendments Act of 2008 ("ADAAA"), Pub. L. No. ll0-325, I22 Stat. 3553 (effective January

1,2009). "The question of whether an individual meets the definition of disability under [the

ADAI should not demand extensive analysis." 29 C.F.R. $ 1630.1(c)(4). Following the 2008

amendments to the ADA, the term "substantially limits" is to be construed broadly in favor of

expansive coverage. 29 C.F.R. $ 1630.2(i)(1xi).

Defendant argues that Plaintiff s alleged medical conditions are not disabilities as defined

by the ADA because they are "either fictitious, temporary, or do not substantially limit any major

life activity." (R. 82-1, Def.'s Mem. at Il-12.) Plaintiff argues that his impairments, including a

hernia, eye disease, hypertension, and kidney disease,s are disabilities because they

"substantially limit him in several major life activities, including lifting, seeing, standing, and

walking." (R. 101, Pl.'s Mem. at20.) Lifting, seeing, standing, and walking qualify as "major

life activities." 42 U.S.C. S 12102(2)(4). "An impairment need not prevent, or significantly or

severely restrict, the individual from performing a major life activity in order to be considered

substantially limiting." 29 C.F.R. $ 1630.2(i)(l)(ii). The question is whether a plaintiff is

s Although Plaintiff alleges in his complaint that he suffers from a congenital heart disorder, (R.

48, Am. Compl. n lT, Plaintiff does not mention a congenital heart disorder along with his other

impairments in his response to Defendant's motion for summary judgment. The Court thus

considers Plaintiff s argument that his alleged congenital heart disorder is a disability to be

waived. See Palmer v. Marion Cnty.,327 F.3d 588, 597-98 (7th Cir. 2003) (deeming the

plaintiff s negligence claim abandoned because he failed to delineate it in his brief in opposition

to summaryjudgment); Laborers'Int'l Unionv. Caruso, 197 F.3d 1195, ll97 (7th Cir. 1999)

(stating that arguments not presented in response to summary judgment motions are waived).

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limited "as compared to most people in the general population ." Id. plaintiff alleges that he

suffered from a hemia that made it very difficult for him to lift and caused him extreme pain. (R.

101' Pl''s Mem' at20) Plaintiff s doctors imposed a ten-pound lifting restriction on him, and

Plaintiff thus contends that his hemia substantially limited him in the major life activity of

lifting' (Id') Defendant argues that because a hernia is a temporary impairment that can be

resolved with surgery, it cannot be substantially limiting. (R. 102, Def.,s Reply at 16.)

Defendant's interpretation of the law, however, is inaccurate. .,The effects of an impairment

lasting or expected to last fewer than six months can be substantially limiting within the meaning

of this section'" 29 c'F'R' 1630'2(l)(l)(ix). In pre-ADAAA cases, the Seventh circuit held that

lifting restrictions were not substantial limitations . serednyi v. Beverly Healthcare, LLC,656

F'3d 540' 555 (7th Cit' 20ll) (citing Zahuronce v. valley packaging Indus., lnc.,397F. App,x

246,248 (7thCir.2010); Mays v. principi,30r F.3d g66, g69 (7th cir. 2002); Mackv. Great

Dane Trailers,3O8 F.3d 776,781(7th cir. 2002)).6 The seventh circuit has not addressed the

issue of whether lifting restrictions are substantial limitations under the standard outlined in the

ADAAA' A court in this District, however, applying the ADAAA standard, found that a

plaintiff s lifting restriction did substantially limit a major life activity . Heatherly v. portillo,s

Hot Dogs' 1nc" No' I I c 8480, 2013 WL 37g0gog,at *6 (N.D. Ill July tg,2ol3)(finding that a

plaintiff, who by doctor's orders had to refrain from heavy rifting while pregnant, had presented

sufficient evidence to create a triable issue of fact as to whether her high risk pregnancy rendered

her disabled under the ADAAA). Based on this court's reading of the ADAAA and viewing the

6 

Fredricl<sen 

The ADAAA, which went into effect onjanuary 7,2009 did not apply retroactively. v. (Jnited parcer 

DC Woter and 

serv., co.,_]sr F.3d5r;, 52i n.r eth cir. 2o[g)(citing Lytes v.

applied 

sewer Auth., 572F.'3d 936, g3g-42 @.c. clr.2o0g)). The Seventh circuit

those cases 

the law 

occurred 

in place 

prior 

prior to the ADAAA in s)ednyi-and zahrrarce because the events in to January 1,2009.

36

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evidence in the light most favorable to Plaintiff, the Court finds that plaintiff s hernia constituted

a disability that substantially limited the major life activity of lifting.

Plaintiff also contends that his eye disease "interferes with his vision, prevents him from

driving, causes him headaches, makes it difficult for him to read voluminous documents, and

causes his eye to leak fluid." (R. 101, Pl.'s Mem. at20.) When plaintiff was first diagnosed

with an eye disorder, he could not see out of his right eye. (1d ) His doctor testified that

Plaintiff s eye sight improved over the following months, (R. 89-9, Ex. JJJ, Wongskhaluang

Dep. at 3l :1-3; 40:17-20), but as explained above, even temporary impairments can be

substantially limiting, 29 C.F.R. 1630.20)0)(ix). Accordingly, the Court finds that plaintiff s

eye disease constituted a disability that substantially limited the major life activity of seeing.

Plaintiff alleges that he also suffered from hypertension and kidney disease, (R. l0l, pl.,s

Mem' at20), but he fails to provide evidence demonstrating how these medical conditions

substantially limited a major life activity. Defendant, on the other hand, has provided evidence

proving that these conditions did not substantially limit Plaintiff in any way. (R. g2-1, Def.,s

Mem' at 12'13J Dr. osei and Dr. Davidovich, who both treated plaintiff for his hypertension,

testified that Plaintiff s hypertension did not cause him any limitations. (R. 90-1, Ex. MMM,

Davidovich Dep. at 23:5-25:r; pl.'s Rule 56.r Resp. ,llfl 67-6s.) Dr. osei, who also treated

Plaintiff for his kidney disease, testified that Plaintifrs kidneys were ..still doing what [they

were] supposed to do," and that his kidney disease was'onot that severe,, and never limited him

in any way' (Pl.'s Rule 56.1 Resp. fl 66.) An individual is discriminated against under the ADA

if he is subjected to an adverse action because of a perceived physical impairment, regardless of

whether that impairment substantially limits, or is perceived to substantially limit, a major life

activity' 29 c.F.R. $ 1630.2(l)(l). Plaintiff has provided no evidence, however, proving that

37

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Defendant regarded him as being impaired because of his hypertension or his kidney disease, or

that Defendant even knew about his hypertension or kidney disease. In fact, plaintiff denies

telling Kubicki he needed a kidney transplant or that he needed time off for his kidney to be

tested' (Pl''s Rule 56'l Resp. fl 65.) Additionally, Triola testified that the only disabilities he

knew Plaintiff had were a hemia and vision problems. (R. 97-1, Ex. 10, Triola Dep. at 74:5-1.)

Accordingly' the court finds that unlike PlaintifPs hemia and eye disease, his hypertension and

limited kidney disease are not disabilities as defined by the ADA.

B' whether Plaintiff was discriminated against because of his disabilities

Just like for Title vII and ADEA discrimination claims, a plaintiff may prove

discrimination in violation of the ADA using either the direct or indirect method. Timmons v.

Generol Motors corp', 469 F.3d 1122, 1126 (7th Cir.2006). Under the direct method of proof a

plaintiff can present either direct or circumstantial evidence to meet his burden. Buie v.

Quad/Graphics, 1nc.,366 F.3d 496,503 (7th Cir. 2004).

Plaintiff seeks to prove discrimination under the ADA under the direct method of proof

through circumstantiar evidence. (R. l0l, pl.,s Mem. at2r.) He relies on the same

circumstantial evidence he relied on to prove race, national origin, and age discrimination to

similarly prove that Defendant discriminated against him based on his disabilities by failing to

promote or train him and by terminating his employment. (Id.) plaintiff also provides additional

circumstantial evidence of chavez's statements and actions with regards to his disabilities.

Plaintiff alleges that on one occasion, chaveztold him that he was terminated after he had

presented a doctor's note to her. (Id.) Plaintiff then asked to speak with someone in Human

Resources' and chave z calledKubicki, who told Chavezthat she could not terminate plaintiff.

(Id') Aftet hanging up with Kubicki, chavezburst out of her office yelling expletives and

38

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saying, "I can't believe this . . . I can't get rid of this guy for nothing." (Id.) On another

occasion, Plaintiff alleges that Chavez told him, "You're sick a lot, I don't think this job is for

You," and stated that Plaintiff was too sick to work for Defendant. (Id.) Further, Chavezreduced

Plaintiff s hours after he informed her of his vision restrictions, which prevented him from

driving at night. (Id.) All this evidence, taken together with the evidence of pretext Plaintiff

provides for his Title VII, Section 1981, and ADEA claims, and viewed in the light most

favorable to Plaintiff, would permit a rational fact finder to infer that Defendant discriminated

against Plaintiff because of his disabilities. Accordingly, the Court finds that Plaintiff s

disability discrimination claim survives summary judgment.

C. Whether Plaintiffs failure to accommodate claim is properly before the

Court

Plaintiff alleges that Defendant failed to reasonably accommodate his lifting restriction

and his vision restriction. (R. l0l, Pl.'s Mem. at24.) Defendant argues that Plaintiff failed to

adequately allege a failure to accommodate claim in his EEOC Charge and, consequently, the

Court should dismiss any failure to accommodate claim Plaintiff now makes. (R. 82-1, Def.'s

Mem. at 14.) Plaintiff did fail to allege a failure to accommodate claim in his EEOC Charge.

(See R. 48-1, Ex. B, EEOC Charge.) Plaintiff nonetheless argues that his failure to accommodate

claim is properly before the Court because it is "reasonably related" to the allegations in the

EEOC Charge. (R. 101, Pl.'s Mem. at2l-22.) The Seventh Circuit has held that"aplaintiff is

barred from raising a claim in the district court that had not been raised in his or her EEOC

charge unless the claim is reasonably related to one of the EEOC charges and can be expected to

develop from an investigation into the charges actually raised." Green v. Nat'l Steel Corp.,

Midwest Div.,197 F.3d 894, 89S (7th Cir. 1999). In his EEOC Charge, Plaintiff alleged that he

was harassed because of his disability and stated, "I believe that I have been discriminated

39

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against because of my disability and retaliated against for engaging in protected activity in

violation of the Americans with Disabilities Act of 1990, as amended.,, (R. 4g-1, Ex. B, EEOC

Charge at l'2.) A discrimination claim is distinct from a failure to accommodate claim under the

ADA' Green, 197 F.3d at 898. "Therefore, they are not like or reasonably related to one

another, and one cannot expect a failure to accommodate claim to develop from an investigation

into a claim that an employee was terminated because of a disability.,, Id.; see Beard v. Don

McCue Chevrolet,lnc., No. 09 c 4218,20r2wL2930121, at *11 (N.D. Ill. July lg,2ol2)

(finding that plaintiff s failure to accommodate claim was not reasonably related to his

discrimination claim); Kaplan v. New Trier Highscft., No. 1 I c gg l, 201 I wL 214gg36, at *3

(N'D' Ill' May 3l,20tl) (finding that aplaintiff s failure to accommodate claim was ..beyond

the scope of the charge of discrimination she filed with the EEoc,,).

Plaintiff argues that he submitted a copy of the complaint he filed with Defendant,s

Human Resources Department to the EEOC, and that this internal complaint should supplement

the allegations in his EEoc charge. (R. l0l, Pl.'s Mem. at22.) written,.[a]llegations outside

the body of the charge may be considered when it is clear that the charging party intended the

agency to investigate the allegations." Swearnigen-El v. Cook Cnty. Sheriff,s Dep,t,602F.3d

852,865 (7th cir. 2010) (quoting vela v. vill. of Sauk vill.,2lg F.3d 66t, 664(7th Cir. 2000)).

The Court finds that it is clear that in sending the EEOC a copy of his internal complaint,

Plaintiff intended the agency to investigate the allegations he made in the internal complaint.

Therefore, the Court will consider the intemal complaint as part of his EEoC Charge. But in

examining the internal complaint, the Court finds that it does not state a charge of failure to

accommodate' Plaintiff draws the Court's attention to the part of the internal complaint which

states, "against the weight requirements of my current position, I have had to lift garbage cans

40

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that weigh in excess of 100 lbs, as a result of which I have developed [an] inguinal hernia that is

bothersome and painful"; he argues that this quoted language makes clear that he intended the

EEOC to investigate a failure to accommodate claim. (R. 101, pl.,s Mem. at22) The court,

however' disagrees' To establish a failure to accommodate claim, a plaintiff must show that: (l)

he has a disability; (2) the employer was aware of his disability; and (3) the employer failed to

reasonably accommodate his disability. sears, Roebuck & co. , 417 F .3d at 797 . plaintiff did not

state in the quoted language or in any other part of the internal complaint that he had a lifting

restriction prescribed by his doctor. Nor does he make clear that Defendant was not

accommodating his doctor prescribed lifting restriction. Rather plaintiff simply states that he

developed a hernia from lifting heavy garbage cans at work. Accordingly, the court finds that

PlaintifPs failure to accommodate craim must be dismissed.

III' Plaintiffs Retariation craims (counts rv, vII, and X)

In counts IV, vII, and X, Plaintiff alleges that Defendants retaliated against him in

violation of Title vII, the ADEA, and the ADA for filing internal complaints and a charge of

Discrimination with the EEoc. (R. 4g, Am. compl. flT 54, 73, g2.) As with discrimination

claims' a plaintiff may establish retaliation claims by way of either the direct or indirect method.

Roneyv' Ill' Dep'tofTransp.,474F.3d455, 45g(7thctu.2007)(Title yft);smithv. Lafayette

Bank & Trust Co',674 F'3d 655, 657 (7thcir.20:2)(ADEA); Andersonv. The Foster Grp.,52r

F' Supp' 2d 758' 7s8 (N'D' rll' 2007) (ADA).7 Here, Plaintiff seeks to prove his retaliation

claims by way of the direct method. (R. 101, pl.'s Mem. at ll-12,16-lg.) To prevail using the

direct method of proof, Plaintiff must present evidence, direct or circumstantial, showing that:

7 

Roney,474F.3dat45g;smith,674F.3d.atesl;)"irrrrr,s2l 

Th" analysis for retaliation claims is the same under Title vII, the ADEA, and the ADA. see

thus cites F. Supp .2d,at7gg. The court relevant case law interchangeably.

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(1) he engaged in a protected activity; (2) he suffered a materially adverse action by his

employer; and (3) a causal connection exists between the two. Silverman v. Bd. of Educ. of Chi.,

637 F.3d729,740 (7th Cir. 2011).8

It is undisputed that Plaintiff engaged in protected activities when he filed internal

complaints in late 2009 or early 2010 and his EEOC Charge on March 5,2010. (R. 101, Pl.'s

Mem. at 11; R. 82-1, Def.'s Mem. at 15.) Plaintiff argues that he suffered three adverse

employment actions in retaliation for filing these complaints: (l) Defendant failed to cross-train

or promote him; (2) Defendant did not increase his salary after his May 2010 evaluation; and (3)

Defendant terminated him. (R. 101, Pl.'s Mem. at ll,l4.) Defendant argues that Plaintifls

retaliation claims must fail as a matter of law because he cannot identify a causal link between

his internal complaints and EEOC Charge and any adverse employment action. (R. 82-1, Def.'s

Mem. at 15.) To establish a causal link, Plaintiff must show that his complaints were the but-for

cause of an adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar,133 S.Ct. 2517,

2528 (2013). In other words, to survive summary judgment, Plaintiff needs to provide enough

direct or circumstantial evidence to allow a jury to conclude that he suffered an adverse

employment action because of his statutorily protected activity. Hobgood, T3l F.3d at 643;

Burnell v. Gates Rubber Co.,647 F.3d704,709 (7th Cir. 2011).

Plaintiff filed his EEOC Charge on March 5,2010, and he was terminated on March I l,

2011. (R. 82-1, Def.'s Mem. at 15-16.) Defendant argues that the one-year gap between his

EEOC Charge and his termination precludes his establishing a causal link between the two. (1d.

8 To establish aprimafacie case of retaliation under the indirect method, Plaintiff must satisfy

the first two elements of the direct method and further show that (l) he was meeting the

employer's legitimate expectations; and (2)he was treated less favorably than a similarly

situated employee who did not engage in statutorily protected activity. Smith, 674 F.3d, at 657-

58; Scruggs v. Garst Seed Co.,587 F.3d 832, 838 (7th Cir. 2009). Plaintiff does not offer any

evidence to prove retaliation via the indirect method.

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at 16') In order to establish a causal link and support an inference of retaliatory motive, the

termination must have occurred "fairly soon after the employee's protected expression.,,

Davidson v. Midelfort clinic, Ltd., 133 F.3d,49g, 5ll (7thcir. 199g). one year is too long of an

interval to allow an inference of retaliatory motive . Paluckv. Gooding Rubber Co.,22l F.3d,

1003, 1010 (7th Cir' 2000). Nevertheless, the fact that ayearpassed between plaintifls

protected expression and his termination does not preclude him from proving retaliatory

discharge; 'oinstead, it means that the timing of [his] discharge, in itself, does not support an

inference of retaliation, and [he] must come forward with other evidence.,, .Id.

Plaintiff argues that the evidence he presents to prove that Defendant,s reasons for

terminating him are pretextual, as outlined in detail above, also supports an inference of

retaliation' (R' 101, Pl's Mem. at 17.) The Seventh Circuit has held that evidence demonstrating

that an employer's reasons for terminating an employee are pretextual is sufficient to create an

inference of retaliatory motive and defeat summary judgment on a retaliatory discharge claim.

Aiayi v' Aramark Bus. servs., nnc.,336 F.3d 520,533-35 (7th cir. 2003). plaintiff additionally

argues that Triola's regular monitoring of him following the filing of his EEoc charge raises an

inference of retaliation. (Id.) Triola edited Plaintiff s performance evaluation in May 2010 and

told chavez to include more details about Plaintiff s performanc e. ed.) Triola also worked

closely with Kubicki and Defendant's outside counsel to prepare documentation on plaintiff in

the months preceding Plaintiff s termination . (rd.) Examples of this activity include: (1) on

January 3,2011, Triola asked Kubicki for copies of Plaintiffs recent Development Journal

entries; (2) onJanuary 13,2011, Triola told Kubicki that he and Defendant,s counsel were

drafting a Development Joumal entry "to deal with the attendance issue,,, and that Defendant,s

attorney would be interviewing Kubicki and Thanawutthikorn "with the sense .this won,t end

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well with Bob' - we want to be prepared"; (3) on January 20,2011, Triola asked

Thanawutthikorn to send Plaintiff s Development Joumal, restaurant schedules, and portions of

the Dear Diary to Defendant's counsel; and (4) on March 8,2}ll, in response to Kubicki's

report that there was only one Development Joumal entry since the beginning of the year, Triola

responded, "Yah, not good." (Id. at l7-18.) Plaintiff argues that Triola's actions "suggest that

Defendant indeed began gathering documentation to justify Plaintiff s termination before the

events in the termination memo allegedly occurred." (Id. at 18.) Defendant responds that this

evidence is "nothing more than proof Triola was adequately performing his duties as Human

Resource Director." (R. 102, Def.'s Mem. at 17.)

In addition to the evidence of Triola's monitoring, Plaintiff also offers evidence that

Chavez told other managers to "document every little thing Plaintiff did wrong', after she found

out about Plaintiff s intemal complaints. (R. 101, Pl.'s Mem. at I l.) And after Chavezfound

out about Plaintiff s EEOC Charge, Chavezwas o'freaking out" and "ranting" about it, and said

that Plaintiff "had to go." (1d ) Between February and March 2OlO, Chavezand other managers

made six entries in Plaintiff s Development Joumal and seventeen entries in the Oak park

Restaurant's Dear Diary about Plaintiffls alleged performance problems . (Id. at 12.)

The parties did not provide and this Court was unable to find Seventh Circuit precedent

on the issue of increased monitoring of an employee following the filing of an EEOC Charge. A

court in this District has held, however, that "the pronounced increase in negative reviews and

the careful scrutiny of plaintiff s performance, coupled with testimony suggesting that

management personnel were acutely aware of plaintiff s EEOC charge, is sufficient to establish a

causal link for plaintiff s prima facie case of retaliatory discharg e." Flanagan v. Office of Chief

Judge of Circuit Court of Cook Cnty.,I//., No. 06 C 1462,2007 WL2g75726,at *13 (N.D. Ill.

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Sept. 28, 2007) (quoting Weaver v. Casa Gallardo, lnc.,922 F.2d 1515, 1525 (llth Cir. 1991))

(the intense monitoring of plaintiff s work, which o.was clearly abnormal, bespeaks a retaliatory

motive"). Here, asin Flanagara, Plaintifls managers, who were aware of Plaintiff s EEOC

Charge, increased their monitoring of Plaintiff s performance and increased the frequency in

which they documented his alleged deficiencies. According to Arrington, this was all done in an

effort to terminate Plaintiff. Thus, the Court finds that viewed in the light most favorable to

Plaintiff, the evidence he presents is sufficient to establish a causal link between Plaintiff s

intemal complaints and EEOC Charge and his termination, and it therefore raises an inference of

retaliatory motive.

Plaintiff also argues that Defendant retaliated against him by denying him a raise after his

May 2010 evaluation and by denying him promotion and cross-training opportunities. (R. l0l,

Pl.'s Mem. at I l.) The Seventh Circuit has held that a plaintiff cannot establish a causal

connection where "the allegedly retaliatory conduct was merely the continuation of the conduct

giving rise to the complaints." McDonnell v. Cisneros, 84 F.3d 256,259 (7th Cir. 1996); see

also Johnson v. Nordstrom, lnc.,260 F .3d 727 ,735 (7th Cir. 2002). There needs to be a

"ratcheting up" of any alleged discriminatory conduct after a plaintiff files his complaints.

Cisneros,84 F.3d at259. Here, Plaintiff frled his internal complaints and EEOC Charge

precisely because he was not getting promoted or cross-trained and was not receiving a raise, and

he felt this was discriminatory treatment. (R. 101, Pl.'s Mem. at 11.) After he filed his

complaints and EEOC Charge, he continued to be denied a promotion and cross-training

opportunities and he continued to be denied a raise until November 2010. (R. 102, Def.'s Resp.

at 18-19.) Because Plaintiff has not alleged any new or increased discriminatory treatment, and

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has only alleged the continuation of the conduct he already complained about, the Court finds no

evidence of retaliation.

Accordingly, the Court finds that Plaintiff s retaliation claims based on his termination

survive summary judgment, but his retaliation claims based on his continual denial of a raise,

promotions, and cross-training opportunities do not survive summary judgment.

Iv. Plaintiffs State Law Retaliatory Discharge claim (count vI)

In Count VI, Plaintiff alleges that Defendant terminated him in retaliation for filing a

claim for workers' compensation benefits. (R. 48, Am. Compl. flfl 65-67.) In Illinois it is

unlawful to terminate an employee in retaliation for exercising his rights under the Illinois

Workers' Compensation Act (IWCA). Gordon v. FedEx Freight, Inc., 674 F.3d 769,773 (7th

Cir.2012) (citing Palmateer v. Int'l Harvester Co.,42l N.E.2d g76,B7B-79 (Ill. lgSl)). A

plaintiff claiming retaliatory discharge for filing a workers' compensation claim must show: (l)

that he was employed by the defendant before the injury; Q) thathe exercised a right granted by

the IWCA; and (3) that the discharge is causally related to the filing of the workers,

compensation claim. Clemons v. Mech. Devices Co.,704N.E.2d 403,406 (Ill. l99g). Here, the

first two elements are not in dispute. (R. 82-r, Def.'s Mem. at l9;R. 101, pl.,s Mem. at25.)

Plaintiff injured his hip and arm while taking out the garbage at work on Decemb er 23, 2010,

and Thanawutthikorn filed a workers' compensation claim on behalf of Plaintiff on January 14,

2011. (R. 101, Pl.'s Mem. at24; Pl.'s Rule 56.1 Resp. n79.) Thus, the only issue is whether

Plaintiff can establish that a causal relationship exists between his exercise of a right granted by

the IWCA and his termination.

The Seventh Circuit has held that in deciding motions for summary judgment on Illinois

retaliatory discharge claims, federal courts are to follow Illinois law rather than the federal

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McDonnell Douglas burden-shifting approach in determining whether a plaintiff has met his

burden on causation Gacekv. Am. Airlines, Inc.,614 F.3d 298, 303 (7th Cir. 2010).

Accordingly, a plaintiff may not survive summary judgment "merely by proving that the reasons

given by [Defendant] for firing him were unworthy of belief," as he would under the McDonnell

Douglas framework . Id. lnstead, to establish a causal relationship, a plaintiff "must

affirmatively show that the discharge was primarily in retaliation for his exercise of a protected

right." Roger v. Yellow Freight Sys., Inc. , 2l F .3d 146, 149 (7th Cir. 1994) (citing Marin v. Am.

Meat Packing Co.,562 N.E.2d 282,285 (Ill. App. Ct. 1st Dist. 1990)). To do so, a plaintiff must

"proffer sufficient evidence from which a reasonable jury could infer that the employer was

improperly motivated." FedEx Freight,674F.3dat774 (quoting Roger,2l F.3d atl49); see

Hartleinv. Ill. Power Co.,60l N.E.2d 720,730 (Ill.1992) ("Conceming the element of

causation, the ultimate issue to be decided is the employer's motive in discharging the

employee."). Here, Plaintiff argues that the facts suggest that Defendant's motive in terminating

Plaintiff was pretextual. (R. 101, Pl.'s Mem. at25.) A pretext argument alone, however, is not

enough to establish the element of causation. Gacek,614 F.3d at 303; see Robinson v. Stanley,

No. 06 C 5158, 2011 WL 3876903, at *6 (N.D. Ill. Aug. 31,201l) (granting summary judgment

on plaintiff s state law retaliatory discharge claim because plaintiff did not provide any evidence

of causation and instead simply argued that defendants' proffered reason for terminating her

employment was a pretext for retaliatory discharge). Plaintiff offers no evidence to demonstrate

that Defendant's actual motivation for terminating him was his filing of a workers' compensation

claim as opposed to Defendant's general discriminatory animus against Plaintiff. Plaintiff s

unsupported allegations of pretext, with respect to his termination for filing a workers'

compensation claim, are insufficient to survive summary judgment on this specific claim.

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Plaintiff further notes that when he returned to work on February l0,2}ll, after

recovering from his workplace accident, he asked Thanawutthikom to be paid for the days he

missed. (R. 101, Pl.'s Mem. at25.) He was terminated on March tl,20ll, and plaintiff argues

that this short time frame between his request for compensation and his termination raises an

inference of causation. (Id.) The Seventh Circuit has identified three ways recognized in Illinois

law by which an employee may exercise a right under the IWCA: (l) where an employee files a

workers' compensation claim; (2) where an employee is preemptively fired to prevent such a

filing; and (3) where an employee merely requests and seeks medical attention. FedEx Freight,

674 F '3d at 773 (collecting and analyzing Illinois caselaw). Thus, requesting compensation from

an employer for days missed is not a protected right under the IWCA. plaintiff cannot establish

a retaliatory discharge claim based on his request for compensation for the time he missed work

due to his injury.

"The causality requirement calls for more than a sequential connection .,, Roger,2l F.3d

at I49; see also FedEx Freight, 674 F .3d, at 77 5. Therefore, the short time frame between the

filing of Plaintiff s workers' compensation claim and his termination (two months) alone is not

enough to infer that Defendant was improperly motivated. Because plaintiff cannot satisfy the

causation element, his state law retaliatory discharge claim cannot survive summary judgment.

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CONCLUSION

For the foregoing reasons, Defendant's motion for summary judgment (R. 32) is

GRANTED in part and DENIED in part. The Court grants summary judgment on Count VI and

denies summary judgment on Counts I, II, III, IV, V, VII, VIII, and X. The Court dismisses

Count IX. The parties are directed to exhaust all settlement possibilities for the remaining claims

prior to the next status hearing, which will be held on January 30,2014,at l0:00 a.m., to set a

firm trial date.

ENTERED:

Chief Judge Rub6n Castillo

United States District Court

Dated: January 1512014

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