Combined violated the ADA by “failing to investigate [Lenoir’s]
complaints of co-worker harassment based upon her disability and
by failing to take any action to stop or remedy the harassment.”
(Pl. Mot. for Partial Summ. J. 7 3.)

Combined does not contest that Lenoir is “disabled” as
defined by the ADA. (Combined Mem. Resp. to Mot. for Partial
Summ. J. n.1.) Nor does Combined contest Lenoir’s
characterization of Combined Insurance Company of America and AON
Corporation, jointly, as a single employer. Id. Therefore,
there is no dispute with regards to the material facts asserted
in grounds I and II of Lenoir’s Motion for Partial Summary
Judgment, and Summary Judgment is GRANTED with respect to these
elements of Lenoir’s claim.

II. Hostile Work Environment

Both parties have moved for summary judgment with respect to
Lenoir’s hostile work environment claim. The ADA prohibits an
employer from discriminating against a qualified individual with
a disability because of the disability of such person. 42 U.S.C.
§ 12101. The Seventh Circuit has not explicitly recognized
hostile work environment claims as viable under the ADA; however,
this Court will assume, without deciding, the viability of such

claims.> Hostile work environment claims are cognizable under

3 In Silk v. City of Chicago, 194 F.3d at 803-04, the Seventh Circuit noted
and adhered to a past practice of assuming such claims “would seem to arise
under the general prohibition against discrimination with respect to terms and
conditions of employment contained in [42 U.S.C.] § 12112(a) and in 29 C.F.R.
§ 1630.4... .” (quoting Miranda v. Wisconsin Power & Light Co., 91 F.3d

19


any of her co-workers’ comments or looks to her supervisors.
(Lenoir Dep. at 118-120, 175-176.) Lenoir’s further stated in
her Declaration she hoped her “supervisors” (emphasis added)
would listen to her concerns and stop the harassment (P. Decl.
8), and the constant harassment made it almost impossible to
perform her job. (Pl. Decl: 4% 7, 12.) These statements
conflict with her deposition testimony, in which she acknowledged
she spoke only with Ducas (Lenoir Dep. at 172, 175-76), and did
not say the negative treatment she received made the performance
of her job significantly more difficult. (Lenoir Dep. at 111-
112, 176.) The offending statements are inconsistent with her
deposition testimony, and appear to be self-serving attempts to
augment her hostile work environment claims. Accordingly,
Combined’s Motion to Strike these portions of her Declaration is
GRANTED .
III. Combined’s Motions to Strike Other Statements and Responses
Combined has filed three additional Motions to Strike: (1)
Motion to Strike Certain Paragraphs from Plaintiff’s 56.1(a) (3)
Statement of Facts, Portions of Plaintiff’s Appendix, and
Unsupported References in Plaintiff’s Memorandum of Law in
Support of Plaintiff's Motion for Partial Summary Judgment; (2)
Motion to Strike Certain Responses from Plaintiff’s Response to
Defendants’ Local Rule 56.1 Statement of Undisputed Material

Facts; and (3) Motion to Strike Certain Responses from

13


must establish the following three elements: (1) she is a person
with a disability within the meaning of the ADA; (2) she is
qualified to perform the essential functions of her job either
with or without reasonable accommodations; and (3) she was
subject to an adverse employment action because of her
disability. Bekker v. Humana Health Plan, Inc., 229 F.3d 662,
670 (7 Cir. 2000); Cleveland v. Prairie State College, No. 99 ¢
6339, 2002 U.S. Dist. LEXIS, at *30 (N.D. Ill. Jul. 12, 2002).
Combined does not dispute Lenoir’s disability, and Combined has
not asserted Lenoir could not perform the essential functions of
her job with a reasonable accommodation.

An aggrieved employee may allege a disability~-based adverse
employment action through direct evidence of discriminatory
animus on the part of her employer, or may use the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), to set forth indirect proof that her employer
intentionally discriminated against her. Cleveland, 2002 U.S.
Dist. LEXIS, at *30, *31. lLenoir’s argument more closely follows
the McDonnell Douglas burden-shifting approach. Under this
method, a plaintiff “first must establish a prima facie case of
discrimination by her employer, which creates a presumption of
intentional discrimination.” Bekker, 229 F.3d at 672. To do so,
the plaintiff must show she is a member of a protected class, she

suffered an adverse employment action, she was meeting her

23


Lenoir does not recall the exact wording. She showed this note
to Ducas, and they unsuccessfully attempted to identify the
author of the note during their approximately ten minute meeting.
Lenoir testified she was “upset” at this time. (Id. at 154.)
Later in 1999, possibly after Lenoir’s return from her leave of
absence in June, she received another anonymous note, which read,
“Stop spreading germs. Quit now or get fired later.” Lenoir and
Ducas took this note to Dyer, who contacted Nancy Siemers
(“Siemers”), Combined’s Employee Relations Manager. Ducas then
delivered the note to Siemers.

Lenoir maintains Combined’s failure to investigate or
relieve the concerns caused by these notes created a hostile work
environment in violation of the Americans with Disabilities Act.
Lenoir has moved for Partial Summary Judgment with regards to the
following material facts and/or matters of law: (a) she is
disabled within the meaning of the ADA; (b) AON and Combined
Insurance Company, jointly, were her “employer” within the
meaning of the ADA; and (c) Combined violated the ADA by failing
to investigate or remedy her complaints of disability-based
harassment. Combined has also moved for Summary Judgment with
regards to Lenoir’s hostile work environment claim.

II. Termination
Combined’s “Human Resources Policies and Procedures Manual”

dated February 1, 1990, provides the Company’s Standards of


Title VII, and cases interpreting such claims will be presumed
analogous for the present determination. See Silk, 194 F.3d at
804. A hostile work environment is one in which the alleged
harassment is “so ‘severe or pervasive’ as to ‘alter the
conditions of [the victim’s] employment and create an abusive
working environment.’” Silk, 194 F.3d at 804 (quoting Faragher
v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986))). To determine
whether the environment is legally “hostile” or “abusive”, the
Court considers a variety of factors within the totality of
circumstances, including: “the frequency of discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
reasonably interferes with an employee’s work performance.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 24 (1993).
Furthermore, the Court must determine the work environment to be
both subjectively and objectively hostile, i.e. the Court must
consider both the actual effect of the harasser’s conduct on the
victim and the effect such conduct would have had on a reasonable
person in the victim’s position. Id.; Saxton v. AT&T Co., 10
F.3d 526, 534 (7 Cir. 1993).

Lenoir fails to show she perceived this conduct to be

severely and pervasively hostile. As stated, the Court will not

1011, 10217 (7% Cir. 1996)). The Court makes the same assumption in the
present case.

20


still fails to pass what the Seventh Circuit called the
“straight-face” test. Id. at 290, 291. Lenoir has provided
evidence that other employees who violated the purportedly
mandatory termination provision of the Standards of Conduct were
not immediately terminated. These examples include employees
arriving at work in intoxicated states, using gross profanity and
displaying egregious insubordination towards supervisors. Such
evidence creates a key issue of fact as to the application of
Combined’s policy. If Combined could show each and every
employee who engaged in acts of theft, from the employee caught
taking a nickel from a co-worker’s desk to the employee
discovered in an embezzlement scheme, was in fact immediately
terminated, then its contention might seem more credible.
Combined’s Standards of Conduct, the document states, are based
on “generally accepted behavior and common sense” and such common
sense is helpful here: termination for the theft of a $0.45
serving of eggs was neither incumbent upon Combined nor
legitimate under the ADA.

Combined argues Gross was the sole decision-maker with
regards to Lenoir’s termination, and protests she did not have
knowledge of Lenoir’s disability at the time of her firing. This
contention is not sufficient to support summary judgment,
however. Combined fails to provide evidentiary support for this

assertion, and as Lenoir points out, the only signatures on the

26


teasing,’ offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the ‘terms and conditions of employment.’” Adusumilli, 164 F.3d
at 361 (quoting Faragher, 118 S. Ct. at 2283) (citations
omitted). Sensitive people would not likely hold papers in front
of their mouths when a co-worker begins coughing; however, even
if assumed to carry an unambiguous meaning, such conduct does not
support a clear inference of hostility. Several forms of conduct
to which Lenoir refers, such as “strange” looks and co-worker
comments, are ambiguous and occurred infrequently, e.g. upon
Lenoir’s returns from leaves of absence. The anonymous “you have
germs” note represents the least appropriate of a highly
infrequent set of occurrences, which are not serious enough to
present the “severe and pervasive” environment where a reasonable
person would find abusive and hostile. Accordingly, Lenoir’s
Motion for Partial Summary Judgment with respect to her hostile
work environment claim is DENIED, Combined’s Motion for Summary
Judgment with respect to Lenoir’s hostile work environment claim
is GRANTED, and Lenoir’s hostile work environment claim is
dismissed.
III. Disability-based termination

Combined has also moved for summary judgment with respect to

Lenoir’s claim for disability-based termination. In order to

defeat a defendant’s motion for summary judgment, a plaintiff

22


testimony, and indicated his acquiescence should Lenoir move for
leave of court to extend discovery. Lenoir’s counsel rejected
this offer.

The documents and witness at issue were disclosed to Lenoir
in an untimely manner. However, Lenoir fails to demonstrate how,
if at all, she will suffer prejudice resulting from the usage or
reference to these documents or the testimony of DiNicola. In
addition, Combined seasonably supplemented its disclosures.
Because of the absence of prejudice and the relatively
insignificant delay in disclosure, an order barring the use or
reference to these documents or the use of this witness testimony
is not warranted. See Heidelberger Druckmaschinen AG v. Ohio
Elec. Engravers, Inc., No. 98 C 7946, 2000 U.S. Dist. LEXIS 8142,
at *4 (N.D. Ill. June 8, 2000). Accordingly, Lenoir’s Motion in
Limine to Bar Documents and Witnesses Disclosed after the Close
of Discovery is DENIED.

Analysis
Standard of Review

Summary Judgment is appropriate if, after drawing all
reasonable inferences in favor of the nonmoving party, the court
concludes there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. S6(c); Juarez v. Ameritech Mobile Communications,

Inc., 957 F.2d 317, 320 (7 Cir. 1992). Federal Rule of Civil

7


Lenoir filed a motion seeking an order to preclude Combined
from asserting she was terminated for stealing eggs from the
cafeteria. Lenoir argues this issue was fully and finally
litigated in a January 14, 2000 hearing before the Illinois
Department of Employment Security (IDES); therefore, issue
preclusion bars further litigation of this assertion.’

Lenoir’s motion is defective in several respects. First,
this motion is a transparent attempt to include an additional
argument in favor of Lenoir’s Response to Combined’s Motion for
Summary Judgment. This’ motion asserts issue preclusion in an
attempt to defeat Combined’s Motion for Summary Judgment. IDES
concluded.Lenoir was not terminated for misconduct; therefore,
she argues, Combined may not advance this argument before this
Court. However, Local Rule 7.1 strictly confines all memoranda
submitted to the Court to fifteen pages, and Lenoir’s Response to
Combined’s Motion for Summary Judgment totaled fifteen pages,
allowing her no space to advance her issue preclusion argument.
This motion simply attempts to circumvent the local rule, and is
not valid.

Even if the Court were to consider this motion, it could not

agree with its substance. Although Lenoir notes Siemers’

2 after her termination from Combined, Lenoir applied for unemployment
benefits under Illinois’ Unemployment Insurance Act. If, after hearing, the
Illinois Department of Employment Security determines the employee was
terminated for misconduct, such employee is ineligible for full Illinois
unemployment benefits.


(1) Any other breach of appropriate business standards
and conduct.

Id.

On November 1, 1999, the Assistant Manager of Combined’s
cafeteria, Ildefonso Jimenez (“Jimenez”), signed a written
statement which was provided to Combined’s Human Resources
Department. The statement described the following incident: on
the morning of November 1, Jimenez observed a female employee
depositing two scoops of scrambled eggs into a large cup. She
then placed a lid on the cup, took two other cups, and proceeded
to the cashier. When questioned, the cashier confirmed the woman
only paid for three cups. Jimenez later identified Lenoir as the
female employee in question.’ The price for two scoops of
scrambled eggs was $0.45. According to Lenoir, the price she
paid for the cups was $0.25.

Siemers learned of this incident on November 1, and provided
Jimenez’s statement and identification of Lenoir to Nancy Gross
(“Gross”), Combined’s Director of Human Resources. Gross,
Combined explains, is responsible for interpreting the above
Standards of Conduct and determining when an infraction warrants
termination. Combined contends Gross has “consistently applied

this policy and terminated every employee whom she was aware was

1 Lenoir does not dispute the accuracy of Jimenez’s identification. That is,
she does not contend he saw someone else pay for three cups on the morning of
November 1, 1999; rather, she contends she did not place eggs in the large cup
in the first place.


Conduct. (Ex. 1 Attach’d to Defs’ L.R. 56.1 Stmt. Undisp’d Mat.
Facts.) The “Purpose” section of this document states: “Certain
standards of conduct based on generally accepted behavior and
common sense have been established to assure a safe, productive

and comfortable work atmosphere for all employees.” Id. The

“

policy cautions violations of these standards of conduct “may

result in various degrees of corrective disciplinary action or
termination,” depending on the seriousness and circumstances of
each incident. Id. However, the policy then warns, “there are
certain serious major offenses which require immediate probation
or termination.” The policy provided the following non-
exhaustive list of examples:

(a) Refusal to carry out job responsibilities or
instructions.

(b) Fraudulent statements or actions involving Company
records or business activities; this includes time
sheets, expense reports, and other business records.

(c) Absence from work for two consecutive scheduled
workdays without notifying the Company.

(d) Misappropriation or theft of Company or co-worker’s
property or funds.

(e) Possession of a weapon on Company premises.

(f) Reporting to work under the influence of drugs or
alcohol which impairs judgment, performance or behavior
while on company premises or while on company business.
(g) Possession, use, or sale of illegal drugs on
Company premises. _

(h) Disorderly conduct including the use of profane or
abusive language.

(i) Unauthorized solicitation during working time or
distribution in work areas.

(j) Physical or verbal intimidation or violence
including racial or sexual harassment.

(k) Gambling on company premises or during working
hours.


Procedure 56(d) permits partial summary judgment when judgment is
not rendered upon the whole case. Fed.R.Civ.P. 56(d). A dispute
about a material fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To
determine whether any genuine issue of fact exists, the Court
must assess the proof as presented in depositions, answers to
interrogatories, admissions, and affidavits that are part of the
record. Fed.R.Civ.P. 56(c). The Court will draw all reasonable
inferences in favor of the nonmoving party; however, the Court is
“not required to draw every conceivable inference from the record
- only those inferences that are reasonable.” Bank Leumi Le-
Israel, B.M. v. Lee, 928 F.2d 232, 236 (7 Cir. 1991).
Furthermore, summary judgment standards are applied with a higher
degree of scrutiny in employment discrimination suits, in which
intent and credibility are crucial issues. Silk v. City of
Chicago, 194 F.3d 788, 798 (7 Cir. 1999).
I. Partial Summary Judgment

Lenoir has moved for Partial Summary Judgment with regard to
the following material facts and/or matters of law: (1) Lenoir
is “disabled,” by virtue of her sarcoidosis condition, within the
meaning of the Americans with Disabilities Act; (2) Combined
Insurance Company of America and AON Corporation, jointly, were

Lenoir’s “employer” within the meaning of the ADA; and (3)

18


workers, insubordination, and operation of a secondary personal
business during business hours. Lenoir argues these examples and
the nominal price of the allegedly stolen scrambled eggs provide
evidence her termination for theft was mere pretext; she alleges
she was instead terminated on the basis of her disability.

Combined has moved for summary judgment, alleging Lenoir has
not shown as a matter of law she was terminated in violation of
the ADA. Combined maintains Gross was the sole decision-maker in
this incident, and had no knowledge of Lenoir’s disability.
Further, Combined argues the requirements of its Standards of
Conduct, and Gross’ uniform enforcement thereof, shows Lenoir’s
termination was genuinely due to the alleged theft. Because
Combined has not as a matter of law successfully rebutted
Lenoir’s pretext argument, and because a genuine issue of fact
remains with regards to the application of Combined’s Standards
of Conduct and Gross’ role in the termination decision, Lenoir
survives this summary judgment motion.

Preliminary Analysis

The parties have filed a number of administrative motions in
addition to their respective motions for summary judgment.
Resolution of these motions will precede discussion of the
hostile work environment and disability-based termination claims
underlying the parties’ respective motions for summary judgment.

I. Issue Preclusion


employer’s legitimate performance expectations, and the employer
treated similarly situated non-disabled employees more favorably.
Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 288 (7% Cir.
1999). A plaintiff must only show there is a genuine issue of
material fact regarding these factors. Id. Lenoir has done so
here. Combined admits she is disabled, she was terminated, there
is no evidence she could not perform the essential functions of
her job with a reasonable accommodation, and Lenoir has provided
some evidence showing non-disabled employees were not terminated
for violating specified provisions of Combined’s Standards of
Conduct.

The burden then shifts to the employer; Combined must
provide evidence of a nondiscriminatory reason for firing Lenoir.
Dvorak v. Mostardi Platt Assocs., Inc., 289 F.3d 479, 485 (7
Cir. 2002) (citations omitted).° Combined satisfies this burden
by providing evidence Lenoir was fired for stealing eggs from the
cafeteria. As such, the burden shifts back to Lenoir, who must
prove by a preponderance of the evidence that Combined’s
proffered reason was a pretext for intentional discrimination.
Id.

Lenoir has demonstrated a genuine issue of material fact as
to whether Combined’s stated nondiscriminatory reason for its
employment decision, i.e. Combined terminated Lenoir for

allegedly stealing 45¢ worth of eggs, was in fact pretextual.

24


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; ill: i Sitting Judge if Other
ao Magistrate Judge William J. Hibbler than Assigned Sadge

CASE NUMBER 01 C 5267 DATE 8/22/2002
CASE TITLE LeNoir v. Combined Insurance of America, etal.

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

Plaintiff's Motion Based Upon The Doctrine Of Administrative Issue Preclusion To Estop Defendants From Asserting That Plaintiff Was
Fired For Stealing Scrambling Eggs (#23-1); Defendants’ Motion to Strike portions of Plaintiff's Declaration in support of her Motion for
Partial Summary Judgment (#35-1); Defendants’ Motion to Strike certain paragraphs from Plaintiffs 56.1()(3) Statement of Facts, etal. (#34-
1); Defendants’ Motions to Strike certain responses from Plaintiff's Responses to Defendants’ 56.1(b)(3)(B) Statement of Additional Facts (#53-
1); Defendants’ Motion to Strike Local Rule 56.1 Statement of Undisputed Material Facts (#50-1); Plaintiff's Motion in Limine (#24-1);
Plaintiff's Motion for Partial Summary Judgment (#21-1); Defendants’ Motion for Summary Judgment (#25-1)

DOCKET ENTRY:

() oO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) Bo Answer brief to motion due___. Reply to answer briefdue___.

(4) o Ruling/Hearingon__setfor___at

(5) o Status hearing [held/continued to] [set for/re-set for] on setfor at.

(6) Oo Pretrial conference [held/continued to] [set for/re-set for]on___—ssetfor__——ssat_—

(Or) o Trial [set for/re-set for] on___ at

(8) o [Bench/Jury trial] [Hearing] held/continued to__at

(9) Oo This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]
COFRCP4(m) (General Rule21 OIFRCP41(a)(1) OO FRCP41(a)(2).

qo) «il [Other docket entry] For the attached reasons, Plaintiffs motion for administrative issue preclusion (#23-1) is

DENIED; Defendants’ Motion to Strike portions of Plaintiff's Declaration in support of her Motion for Partial Summary
Judgment (#35-1) is GRANTED; Defendants’ Motions to Strike certain responses (#34-1)(#50-1)(#53-1) are DENIED;
Plaintiff's Motion in Limine (#24-1) is DENIED; Plaintiffs Motion for Partial Summary Judgment (#21-1) is GRANTED
in part and DENIED in part, such that Plaintiff's claim of hostile work environment is dismissed; and Defendants’ Motion
for Summary Judgment (#25-1) is GRANTED in part and DENIED in part, such that Plaintiff's claim for disability-based
discrimination may go forward. Enter Memorandum Opinion and Order. Joint Pre-trial Order to be
submitted in triplicate to chambers on October 8, 2002 at 9:15 a.m.
(11) a [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of notices

Notices mailed by judge's staff.

Notified counsel by telephone.

AUG
ivang LaMisia's'9 £48,200

Y | Docketing to mail notices. :
Mail AO 450 form. Deira
aun oy Ane zy

fs

Copy to judge/magistrace judge.

courtroom ote date mailed notice

deputy’s
initials
Date/time received in

céntral Clerk’s Office mailing deputy initials



Asserting that Plaintiff was Fired for Stealing Scrambled Eggs is
DENIED.
II. Combined’s Motion to Strike Portions of Lenoir’s Declaration
Combined has moved to strike portions of a sworn declaration
submitted by Lenoir in support of her Motion for Partial Summary
Judgment. A trial court has discretion to strike parts of an
affidavit in opposition to a motion for summary judgment. See
Adusumilli v. City of Chicago, 164 F.3d 353, 359 (7% Cir. 1998).
“Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify on the matters stated therein.” Fed. R.
Civ. P. 56(e). A party cannot support a motion for summary
judgment with affidavits containing “conclusory allegations which
contradict plain admissions in prior deposition or otherwise
sworn testimony.” Adusumilli, 164 F.3d at 360 (quoting Diliberti
v. United States, 817 F.2nd 1259, 1263 (7 Cir. 1987)).
Therefore, deposition testimony controls when a conflict arises
between a sworn affidavit and that testimony, unless there is a
demonstrably reasonable mistake in the deposition. Piscione v.
Ernst & Young, L.L.P., 171 F.3d 527, 532-533 (7 Cir. 1999);
Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7% Cir. 1995).

Further, “self-serving affidavits without factual support in the

i


participation in the IDES hearing on behalf of Combined, and
IDES’ conclusion could provide evidence in support of Lenoir’s
claim, the findings of this state administrative agency lack
preclusive effect in federal courts. The Supreme Court has held
while preclusive effect in Title VII claims may be given to the
judgments and records of state courts pursuant to 28 U.S.C. §
1738, this statutory provision does not extend to the unreviewed
findings of fact by state administrative agencies. University of
Tennessee v. Elliott, 478 U.S. 788, 792, 92 L. Ed. 2nd 635, 106
S. Ct. 3220 (1986). The Court explained a Title VII provision
directing the EEOC to give “substantial weight” to the findings
of such entities indicated Congress did not intend for these
findings to have preclusive effect. Id. at 795. The Seventh
Circuit applied the Elliott holding to ADA claims, noting because
“Title I of the ADA incorporates the same deferral procedures .

. Elliott’s reasoning applies equally to ADA cases.” Pernice v.
City of Chicago, 237 F.3d 783, 787 n.5 (7 Cir. 2001); Thomas v.
Contoocook Valley Sch. Dist., 150 F.3d 31, 39 & n.5 (1% Cir.
1998). In addition, the burdens and incentives to vigorously
litigate the termination issue differ between the setting of a
state agency’s unemployment hearing and the judicial proceeding,
and issue preclusion is therefore inappropriate in this case.
Accordingly, Lenoir’s Motion Based Upon the Doctrine of

Administrative Issue Preclusion to Estop Defendants From

10


involved in thet” during her eleven year tenure as Director of
Human Resources.

Combined maintains Gross reviewed Jimenez’s statement,
verified Jimenez’s identification of Lenoir, then, after a
discussion with Combined’s attorney, decided to terminate Lenoir
for theft. Combined states Gross then instructed Siemers to call
Richard North (“North”), the manager of Lenoir’s department, and
terminate Lenoir. Combined maintains Gross was the sole-decision
maker; Lenoir disputes this characterization.

North and Siemers met with Lenoir on November 2, 1999, and
informed her of her termination. Lenoir insists she did not
remove the scrambled eggs from the cafeteria. Rather, she
maintains, she followed her normal morning practice: she
purchased three cups for ice, cream, and sugar, which she
presumably used with her morning coffee. She maintains she was
not given an opportunity to respond to the theft allegations;
further, she offered to show North and Siemers the cups on her
desk in an effort to exculpate herself, but was refused.

Lenoir challenges the rigor with which the Standards of
Conduct have been applied in recent years. Lenoir offers several
examples of conduct violations which have not resulted in
termination; some of these violations have involved the removal
of food from the cafeteria without payment, while other examples

include: use of gross profanity, physical intimidation of co-


consider those portions of her Declaration stricken above, and
her deposition testimony does not indicate she subjectively
perceived the conduct of her co-workers to be abusive or hostile.
While she doubtlessly did not appreciate the “strange” looks or
unnecessary guarded gestures to which she was subject, she stated
this conduct only made her feel uncomfortable. Further, although
she was upset with the anonymous notes she received, she did not
provide testimony indicating a resulting interference with her
ability to perform her job. She could not recall the wording of
any note other than that which was saved and attached in her
Exhibits, and admitted that no co-worker ever verbally or
physically confronted or intimidated her. While she was upset
with the conditions she faced, and it is difficult to discern her
subjective feelings about the conduct of her co-workers, Lenoir
has not shown she considered this conduct to have risen to the
“severe and pervasive” nature necessary to support a hostile work
environment claim.

More clearly, the environment within which Lenoir worked was
not that which a reasonable person would find hostile or abusive.
The offensive conduct about which Lenoir complains is notable
both for its infrequency and its lack of severity. Immature work
environments in which co-workers show little sympathy for a
difficult medical condition are not those of which employers

should be proud. However, the Supreme Court has warned, “‘simple

21


“Management Approval” termination of employment form are those of
North and Dyer. Further, the only signature on the “Human
Resources Approval” form is that of Siemers. No such form has
been provided indicating the sole decision was that of Gross’.
Furthermore, if Combined’s characterization of its hierarchy is
correct, it is somewhat troubling. If employers could simply
isolate termination decisions to only those members of management
with no knowledge of employees’ protected statuses, they could
then immunize themselves from the strictures of employment
discrimination statutes. The Court declines Combined’s
invitation to make possible this end-run around Title VII and the
ADA, and as such DENIES Combined’s Motion for Summary Judgment
with respect to Lenoir’s claim for disability-based termination.
Conclusion

For the reasons set forth above, Plaintiff’s motion for
administrative issue preclusion is DENIED; Defendants’ Motion to
Strike portions of Plaintiff's Declaration in support of her
Motion for Partial Summary Judgment is GRANTED; Defendants’
Motions to Strike certain responses from Plaintiff’s Responses to
Defendants’ 56.1(b) (3) (B) Statement of Additional Facts and Local
Rule 56.1 Statement of Undisputed Material Facts are DENIED;
Plaintiff’s Motion in Limine is DENIED; Plaintiff’s Motion for
Partial Summary Judgment is GRANTED in part and DENIED in part,

so that Plaintiff's claim of hostile work environment is

27


took several short-term disability leaves of absence. These
leaves of absence covered the following time spans: June 13,
1998, through August 10, 1998; November 4, 1998, through December
14, 1998; May 22, 1999, through June 17, 1999; and September 25,
1999, through October 7, 1999.

Jeannet Ducas (“Ducas”) was Lenoir’s direct supervisor from
1996 to 1999. Lenoir first discussed her condition with Ducas
sometime in 1998, and was comfortable with the tenor of these
discussions. Mary Beth Dyer (“Dyer”) was Lenoir’s manager, as
well as Ducas’ direct supervisor. Dyer also occasionally spoke
to Lenoir about her condition, but Lenoir was less comfortable
with these discussions. She stated Dyer asked her several
questions about the symptoms of her condition and the medication
she took to alleviate those symptoms. (Lenoir Dep. at 119.)
Lenoir testified to feeling “uncomfortable” with these questions.
Id.

Lenoir maintains her co-workers were displeased with the
affects of her condition. Lenoir testified she was
“uncomfortable” when co-workers gave her “strange looks” and held
papers in front of their faces while she coughed. (Id. at 174-
75.) Lenoir did state, however, that no co-worker directly spoke
to her about her condition or symptoms. (Id. at 119.) Sometime
in 1999, Lenoir received an anonymous handwritten note, which

said something to the effect of “what do you have,” although


Plaintiff’s Response to Defendants’ 56.1(b)(3)(B) Statement of
Additional Facts.

The Seventh Circuit has stated repeatedly, “[a] local rule
ofa federal district court is written by and for district judges
to deal with special problems of their court, and we are disposed
therefore to give a district judge’s interpretation of his [or
her] court’s local rules . . . considerable weight.” Midwest
Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7 Cir. 1995)
(quoting Bell, Boyd & Lloyd v. Tapy, 896 F.2nd 1101 (7 Cir.
1990)) (citations omitted). Whether to apply a given local rule
strictly or to overlook any transgression, therefore, is a matter
the Seventh Circuit has left to the district court’s discretion.
See Waldridge v. American Hoeschst Corp., 24 F.3d 918, 923 (7TM
Cir. 1994); McGann v. Northeast Ill. Regional Commuter R.R.
Corp., 8 F.3d 1174, 1178 n.3 (7 Cir. 1993); Schultz v.
Serfilco, Ltd., 965 F.2nd 516, 519 (7 Cir. 1992).

While strict adherence to the local rules could justify
striking the offending portions of Lenoir’s Statement of Facts,
Appendix, Memorandum of Law, and Response, the Court instead
chooses to exercise its recognized discretion in overlooking
these technical transgressions. Motions to strike are generally
disfavored and judicial economy is not necessarily served by
striking the offending portions. Accordingly, Combined’s Motions

to Strike the aforementioned portions of Lenoir’s Statement of

14


that time, and Combined’s counsel immediately contacted the
company to obtain further information and documents from
DiNicola. The close of Dyer’s deposition coincided with the
close of discovery; Combined’s counsel sent Benoir’s counsel
correspondence identifying DiNicola as an individual with
knowledge potentially relevant to the lawsuit. On March 4, 2002,
Combined’s counsel reviewed DiNicola’s complete files, including
his employment and training materials pertaining to the ADA,
harassment, discrimination, and course rosters identifying the
Combined employees present at the training sessions. On the same
day, Combined’s counsel copied these documents and sent them to
Lenoir’s counsel.

Lenoir moves to bar usage of or reference to these documents
and the use of DiNicola as a witness by Combined. Because of the
withholding of the materials until after the close of discovery,
Lenoir protests, she was unable to question any defense witnesses
about the training sessions or DiNicola’s training materials.
Lenoir further claims disclosure of DiNicola’s identity and
knowledge so close to the end of discovery prevented her from
conducting discovery into his potential witness testimony.
Combined contends this information was not abusively withheld,
but made available to Lenoir as soon as it was brought to defense
counsel’s attention. Combined’s counsel made inquiries and

obtained additional information in light of Dyer’s deposition

16


document and witness discovery. Corresponding with the order in
which they will be discussed below, resolution of these motions
is as follows: Plaintiff’s administrative issue preclusion
motion is DENIED; Defendants’ Motion to Strike portions of
Plaintiff’s Declaration in support of her Motion for Partial
Summary Judgment is GRANTED; Defendants’ Motions to Strike
certain responses from Plaintiff's Responses to Defendants’
56.1(b) (3) (B) Statement of Additional Facts and Local Rule 56.1
Statement of Undisputed Material Facts are DENIED; Plaintiff's
Motion in Limine is DENIED; Plaintiff’s Motion for Partial
Summary Judgment is GRANTED in part and DENIED in part; and
Defendants’ Motion for Summary Judgment is GRANTED in part and
DENIED in part.
Background
I. Work Environment

Plaintiff Jannie Lenoir (“Lenoir”) worked for Defendant
Combined Insurance Company of America, a subsidiary of AON
Corporation, (jointly, “Combined”) from April, 1991, until
November 1, 1999. Lenoir suffers from a condition known as
sarcoidosis. Sarcoidosis is a systemic disease, which in its
assorted incarnations can affect any or all organs. Lenoir’s
affliction primarily affected her lungs; among her symptoms were
shortness of breath, tightening of the chest, coughing fits,

headaches, and extreme fatigue. Due to this condition, Lenoir


Anderson, 477 U.S. at 248. In assessing the employer’s decision
to terminate, the Court looks not to the wisdom of the decision,
but rather at the genuineness of the motive. Stalter, 195 F.3d
at 289. Lenoir maintains Combined made little or no effort to
allow her to exculpate herself. She offered to show North and
Siemers the cups she had taken from the cafeteria, which she says
were still on her desk. North and Siemers declined to inspect
these cups, which might well have provided proof they contained
sugar, ice, or cream, and not remnants of scrambled eggs. This
alone may or may not be enough to impugn the genuineness of
Combined’s motive. However, a common sense analysis of the
severity of the theft accusation in light of Stalter strengthens
the inference of pretext. In Stalter, the Seventh Circuit
considered the termination of an African-American Wal-Mart
employee accused of taking a handful of taco chips from a co-
worker’s bag in the company break room. Id. at 287. Although
Wal-Mart argued other employees had been terminated for violating
its code of conduct, the Seventh Circuit described the
termination as “swatting a fly with a sledge hammer.” Id. at
290. Although Combined felt its Standards of Conduct compelled
Lenoir’s termination for this theft, and Wal~Mart’s policy was
stated in more permissive terms than Combined’s (“There are,
however, certain actions of misconduct which may result in

immediate termination . . .”) (emphasis added), this decision

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETED
JANNIE LENOIR AUG 2 3 2002
Plaintiff,

v. No. 01 C 5267

COMBINED INSURANCE
COMPANY OF AMERICA and
AON, INC.

Defendants

Judge William J. Hibbler

MEMORANDUM OPINION AND ORDER

The Court has before it Defendants’ Motion for Summary
Judgment with respect to Plaintiff’s Amended Complaint for
employment discrimination under the Americans with Disabilities
Act, 42 U.S.C. § 12112(a), as well as Plaintiff’s Motion for
Partial Summary Judgment relating to selected issues of fact and
Plaintiff’s hostile work environment claim. Defendants have also
filed Motions to Strike certain responses from: Plaintiff's
Response to Defendants’ 56.1(b)(3)(B) Statement of Additional
Facts, certain responses from Plaintiff's Response to Defendants’
Local Rule 56.1 Statement of Undisputed Material Facts, and
portions of Plaintiff's Declaration filed in support of her
Motion for Summary Judgment. In addition, Plaintiff has filed a
“Motion Based Upon the Doctrine of Administrative Issue
Preclusion to Estop Defendants from Asserting that Plaintiff was

Fired for Stealing Scrambled Eggs,” and a Motion in Limine to bar


dismissed; and Defendants’ Motion for Summary Judgment is GRANTED
in part and DENIED in part, so that Plaintiff’s claim for
disability-based discrimination may go forward.

IT IS SO ORDERED.

Dated: August 21, 2002

Zh GLb?

WILLIAM J. HIBBLER, DISTRICT JUDGE

28


record will not defeat a motion for summary judgment.” Piscione,
171 F.3d at 532.

Lenoir’s challenged Declaration statements conflict with her
deposition testimony and/or are self-serving attempts to “fill
the gaps” left by her deposition testimony in the construction of
a hostile work environment claim. In her Declaration, Lenoir
states she “complained constantly” to Ducas. (Pl. Decl. @ 10.)
In her deposition, she described only four conversations with
Ducas regarding her concerns, and specifically admitted she did
not discuss with Ducas any looks or comments she received from
her co-workers. (Lenoir Dep. at 151, 156, 162-163, 170-172, 175~
176). Lenoir also re-characterized the looks she received,
describing them in her Declaration as “angry” and “hateful,” as
opposed to the deposition description of “strange.” (Pl. Decl. 1
7; Lenoir Dep. at 175.) Also at odds with the tenor of her
deposition are the assertions she suffered “constant” harassment
(Pl. Decl. QI 7, 12), that she “put up with [the ‘almost
intolerable atmosphere’], hoping that [her] supervisors would
listen to [her] complaints and put a stop to the harassment.”
(Pl. Decl. @ 8). In contrast, her deposition testimony only
indicates she received strange looks upon returning from leaves
and detectable reactions when she coughed. {Lenoir Dep. at 174-
175.) She further stated in her deposition she did not suffer

any harassment other than the anonymous notes, nor did she report

12


Facts, Appendix, Memorandum of Law in Support of Plaintiff's
Motion for Summary Judgment, and Plaintiff’s Responses to
Defendants’ Local Rule 56.1 Statement of Material Facts and
Defendants’ 56.1(b)(3)(B) Statement of Additional Facts are
DENIED.
IV. Lenoir’s Motion in Limine

Lenoir has filed a Motion in Limine, seeking an order
barring Combined from using or making reference to documents
disclosed by Combined after the close of discovery, or calling
Robert DiNicola as a witness at trial. On September 10, 2001
Lenoir filed Interrogatories and Requests for Production of
Document. Request for Production #3 called for

All personnel policies, employee handbooks, or other

policies or procedures regarding the terms’ or

conditions of employment for persons employed by

Combined Insurance during the time period plaintiff was

employed, including but not limited to all medical

leave policies, FMLA policies, disability policies,

grievance procedures, anti-harassment policies, and

discipline or termination of employment policies.
(Ex. B att’d to Pl. Mot. in lLimine.) In response to the
requests, Combined produced its Personnel Policy Manuals,
including the Standards of Conduct, and other relevant materials.
During the deposition of Dyer on February 28, 2002, Dyer
identified Robert DiNicola as the individual who conducted

Combined’s in-house harassment and discrimination training.

Combined claims this information first came to its attention at