testimony regarding Accurate’s insurance agent, speculative evidence regarding Accurate’s “problem
files” before, during, and after Enright’s tenure, and slanderous testimony about Enright’s vocational
expert. Enright’s motion is unnecessary. The Court is fully capable of parsing through the
Accurate’s factual statements and supporting exhibits and deciding which facts should be considered
and which should not. Stark v. PPM American, No. 01 C 1494, 2002 WL 31155083, at * 2 (N.D.Ill.
Sept. 26, 2002). To the extent any factual assertion has been inadequately or improperly supported,
such assertions will not be incorporated into the facts taken to be true for purposes of summary
judgment. Ogbor v. United Food and Commercial Workers, Local No. 881, No. 98 C 4623, 2000 WL
1409855, at *3 (N.D.IIL Sept. 25, 2000). Accordingly, Enright’s motion is denied.

B. Accurate’s Motion to Bar Enright’s Vocational Expert

Accurate claims that the testimony of Enright’s vocational expert is irrelevant and unreliable
and therefore inadmissible. Enright has retained a vocational expert, Mr. Brethauer, who testifies
about the effects of Enright’s perceived disability. Mr. Brethauer opines that if Accurate perceived
Enright as not being able to handle job-related stress, then Enright would be substantially limited in
his ability co find similar employment. Accurate argues that Brethauer’s opinion is not based upon
sufficient facts or data and is not the product of reliable principles and methods.

The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states:

If scientific, technical or other specialized knowledge will assist the trier of fact to

understand the evidence or determine the fact in issue, a witness qualified as an

expert by knowledge, skill experience, training, or education, may testify thereto in

the form of an opinion or otherwise.
Fed. R. Evid. 702. Expert testimony must be both relevant and reliable. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999). The
testimony is relevant if the testimony “assists the trier of fact in understanding the evidence or

determining a fact,” and the testimony is reliable if the “reasoning or methodology underlying the


demonstrates that Accurate at most regarded Enright as incapable of performing the specific duties of
his particular job. Accurate'’s position is unconvincing for two reasons. First, Enright claims that
upon discovering the extent of his physical impairment, Accurate did not offer Enright another
position or propose any accommodation whatsoever. If Enright allegations are taken as true, the fact
that Accurate regarded Enright as unable to perform any job within Accurate at least raises a
genuine issue of material fact as to whether Accurate perceived Enright as unable to perform a class
or broad range of jobs. Coleman v. Keebler Co., 997 F. Supp. 1102, 1115 (N.D.Ind. 1998); see also
Best v. Shell Oil Co., 107 F.3d 544, 548 (7 Cir. 1997). Enright also argues that Accurate believed
that Enright’s medical condition prevented him from handling job-related stress. To illustrate the
effect of this perception, Enright offers testimony of a vocational expert who concludes that
Accurate’s alleged perception would foreclose Enright from eighty-two percent of the jobs utilizing
similar training and skills within his geographic area. If correct, this conclusion certainly appears to
“substantially limit” Entight’s employment options. Accordingly, the Court finds that Enright has
raised a dispute of material fact whether Accurate considered Enright substantially restricted in his
ability to perform a broad range of jobs, and this is precisely what Enright must show to prove that
Accurate regarded him as disabled.
2. Evidence of Discrimination

But simply establishing that Accurate harbored discriminatory perceptions is not enough to
overcome Accurate’s motion. Rather, Enright must also demonstrate that a dispute of material fact
exists whether Accurate acted on its perceptions. Enright may offer either direct evidence,
circumstantial evidence, or a combination of both to demonstrate actionable discrimination. Troupe

v. May Dept. Stores Co., 20 F.3d 734, 736 (7 Cir. 1994).

9


excluded in another case on Daubert grounds and should therefore be excluded here. See United States
Equal Employment Opportunity Comm'n v. Rockwell Int'l Corp., 60 F.Supp. 2d 791 (N.D.IIl. 1999).
Rockwell is readily distinguishable from the case at hand. In Rockwell, the district court found that
Brethauer failed to review the claimants’ individual depositions, received inappropriate input from the
plaintiff's attorney, admitted to finding some of the data incomplete and relied on data not usually relied
upon by experts in the field. Rockwell, 60 F. Supp. 2d at 797-798. None of these deficiencies are claimed
here. Rather, the record reveals that Brethauer reviewed depositions, consulted various professional
sources, and performed a transferable skills analysis that considered Enright’s position and relevant job
markets. As the Court finds that Brethauer’s report is neither irrelevant nor unreliable, Enright’s motion
to bar is denied.

C. Accurate’s Motion For Summary Judgment

Accurate argues that Enright cannot, as a matter of law, establish that he is disabled under
the ADA. Accurate also argues that even if Enright could establish an ADA disability, Enright has
failed to rebut Accurate’s non-discriminatory reasons for terminating Enright. Regarding Enright’s
ERISA claim, Accurate argues that Enright has failed to offer evidence demonstrating that Accurate
acted with the required specific intent to interfere with Enright’s ERISA tights.

1. Enright’s ADA Claim

The ADA provides that no employer “shall disctiminate against a qualified individual with a
disability because of the disability of such individual in regard to . . . discharge of employees...” 42
U.S.C. § 12112(a). Enright can establish actionable discrimination in two ways. First, under the
direct method, Enright “may present direct or circumstantial evidence that [Accurate’s] employment
decision was motivated by [Accurate’s] discriminatory animus.” Bellaver v. Quanex, 200 F.3d 485,

492 (7" Cir. 2000). Second, Enright may use the burden shifting method set forth in McDonnell



testimony is scientifically valid.” Daubert, 509 USS. at 590-91; United States v. Hall, 165 F.3d 1095, 1101
(7° Cir. 1999).

Accurate argues that Brethauer’s testimony is irrelevant because Enright’s claimed disability, the
inability to handle job-related stress, cannot constitute a disability under the ADA. Accordingly,
Accurate argues that Brethauer’s opinions are irrelevant because they will not help prove Enright’s ADA
claim. Accurate’s argument is without merit as it ignores cases such as Emerson v. Norther States Power
Co., 256 F.3d 506, 510, 512 (7 Cir. 2001), which allowed an employee’s ADA claim based on a
perceived inability to handle job-related stress. Accurate also argues that Brethauer’s opinions are
irrelevant because expert testimony is not needed to understand whether someone feels stress. This
argument is misplaced as Brethauer's opinions are not offered to prove that Enright did or did not
experience job-related stress, but rather to determine the effect of Accurate’s perception that Enright
could not handle job-related stress.

Accurate next argues that Brethauer’s testimony is unreliable. Accurate first claims that the
testimony is not scientifically valid because there is no recognized definition of stress. But Accurate does
not explain why this undermines Brethauer’s opinions. Nor does Accurate address the fact that the
Seventh Circuit had no difficulty discussing workplace stress in the absence of a uniform definition. See
Emerson, 256 F.3d at 512. Accurate also claims that Brethauer’s report is unreliable because only
portions of his methodology have been submitted to peer review. This, by itself, does not render an
expert report unreliable. The Daubert inquiry is a flexible one, where the court may consider a variety
of factors. Whether the expert’s methods have been submitted to peer review is only one of these factors.
Id. at 593-94. Moreover, the method Brethauer employs - the transferable skills analysis - has been
deemed reliable. See DePaoli v. Abbott Labs., 140 F.3d 668, 670 (7" Cir. 1998).

Lastly, Accurate attacks Brethauer personally. Accurate argues that Brethauer’s testimony was



into the latter category — this is, Enright claims that Accurate regarded his physical impairment as
substantially limiting his ability to work when, in fact, it was not so limiting. While Accurate
acknowledges that it regarded Enright as physically impaired, Accurate disputes that it regarded
Enright’s physical impairment as substantially limiting one of Enright’s major life activities.

Accurate first argues that the only life activity implicated by Enright’s claim is “working” and
that the Supreme Court's recent decision in Toyota Motor Mfg., Kentucky., Inc. v. Williams, 534 U.S.
184 (2002) decided that working should not be considered a major life activity. Toyota did not go
that far. The Toyota Court was concerned with the major life activity of “performing manual tasks,”
not “working.” Id. at 201. While it is true that the Court recognized the conceptual difficulties
inherent in the argument that working could be a major life activity, it was careful not to decide this
difficult question. Id. This Court therefore declines Accurate’s invitation to depart ftom established
Seventh Circuit precedent that consistently regards “working” as a major life activity. See, e.g.,
Skorup v. Modern Door Corp, 153 F.3d 512, 514-15 (7 Cir. 1998); Patterson v. Chicago Ass'n for
Retarded Children, 150 F.3d 719, 725-26 (7 Cir. 1998); Baert v. Euclid Beverage, Ltd., 149 F.3d 626,
630 (7 Cir. 1998).

With respect to the major life activity of working, “substantially limits” mean significantly
restricts the employee’s ability to perform a class of jobs or broad range of jobs in various classes.
Byrne v. Board of Educ., Sch. of West Allis-West Milwaukee, 979 F.2d 560, 567 (7" Cir. 1992). Thus,
to overcome Accurate’s summary judgment motion, Enright must present evidence to create a
question of material fact as to whether Accurate believed that his impairments “substantially
limit[ed] employment generally.” Skorup, 153 F.3d at 514-15.

Accurate argues that Enright cannot carry this burden because Enright’s evidence only



Minute Order Foren (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other
than Assigned Judge

William J. Hibbler

CASE NUMBER 01 C 1686 DATE 10/15/2003
CASE JOSEPH ENRIGHT vs. ACCURATE TRANSMISSIONS, INC.
TITLE
[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.]

Defendant Accurate’s Motion for Summary Judgment, Plaintiff's Enright’s Motion to Strike, and Defendant

Accurate’s Motion to Bar (docs. #14, 22, and 2

DOCKET ENTRY:

a) o Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer briefdue___
(4) Oo Ruling/Hearing on setfor at
(5) Oo Status hearing[held/continued to} [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at _.
(7) oO 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]
CIFRCP4(m) CLocal Rule 4i.1 CFRCP41(a)(1) 0 FRCP4I(a)(2).
ao) 4 {Other docket entry] Defendant’s Motion for Summary Judgment is DENIED in part and
GRANTED in part. Plaintiff's Motion to Strike [#22] is DENIED. Defendant’s Motion to Bar [#23] is
DENIED. Enter Memorandum Opinion and Order. Joint pretrial order to submitted in triplicate on
11/5/03 at 9:45 a.m. Parties are advised that a trial schedule will be set at the next court date.
(11) [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
7 A Number
No notices required. number of notices .
Notices mailed by judge’s staff. ocT 17 2003
Notified counse! by telephone dae dockesed
UY | Docketing to mail notices. shane 4% asin
Mail AO 450 form. ~ ; docketing
Copy to judge/magistrate judge. vey

date maited notice
courtroom

deputy's
initials

JHC

Date/time received in
central Clerk's Office

railing deputy initials



It shall be unlawful for any person to discharge, fine, suspend, expel, discipline,

or discriminate against a participant or beneficiary for the purposes of interfering

with the attainment of any right to which such participant may become entitled

under the plan. ....
29 U.S.C. § 1140. In interpreting the above provision, the Seventh Circuit has determined that an
employee must show that the employer acted with the specific intent to interfere with the employee’s
ERISA rights. Teumer v. General Motors Corp., 34 F.3d 542, 550 (7% Cir. 1994); Meredith v. Navistar
Int'l Transp. Co., 935 F.2d 124, 126 (7 Cir. 1991). Additionally, although Enright is not required to
prove that the interference with this ERISA rights was the sole reason for his discharge, Salus v. GTE
Directories Service Corp., 104 F.3d 131,138 (7" Cir. 1997), Enright bears the burden of establishing
that his loss of benefits was not a “mere consequence” of his dismissal. Meredith, 935 F.2d at 127.

Enright offers scant evidence to demonstrate Accurate’s specific intent. Enright claims that
Mary Kuempal reported Entight’s Lupus to Accurate’s insurance agent because Enright’s medical
treatment represented a significant percentage of Accurate’s medical expenses. From these facts,
Enright extrapolates that Accurate fired him because Enright’s deteriorating health compromised
Accurate’s ability to secure reasonably-priced health insurance. Even when Enright’s evidence is
viewed in the most favorable light possible, it fails to raise the necessary inference of Accurate’s
specific intent to interfere with Enright’s ERISA rights. The only reasonable conclusion that a trier of
fact could draw from Enright’s evidence, or lack thereof, is that Enright’s loss of benefits was a mere
consequence of his dismissal rather than the result of Accurate’s specific intent to interfere with his
ERISA rights. Accordingly, as Enright’s evidence fails to raise a genuine issue of material fact
regarding whether Accurate’s intended to specifically interfere with Enright’s ERISA rights,

Accurate’s motion for summary judgment is granted.

11


Enright presents little direct evidence of discrimination, other than Schafer’s alleged
comment that he was firing Enright because the stress level of job was not good for his health.
Standing alone, this isolated (and disputed) comment is probably not enough. But it is not true that
to get over the hurdle of summary judgment a plaintiff must produce the equivalent of an admission
of guilt by defendant. All that is required is evidence from which a rational tier of fact could
reasonably infer that the defendant had fired the plaintiff because the latter was a member of a
protected class. Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 658 (7* Cir. 1991) (en
banc). Here, the particularly suspicious timing of Enright’s termination provides the necessary
inference of intentional discrimination. Enright claims that he was terminated within an hour of his
return to work from the hospital. Such a telling temporal sequence can indicate a causal link
reflecting an employer's discriminatory motivations. Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499,
511 (7" Cir. 1998). Also, Accurate admits that no specific aspect of Enright’s job performance
precipitated their decision to fire Enright. From this admission, a trier of fact could reasonably
conclude that Enright’s deteriorating physical condition provided the impetus to fire Enright and not
Accurate’s purported desire to rid themselves of a poorly performing employee. Accordingly, the
Court finds that Enright has presented sufficient direct evidence of discrimination to raise a dispute
of material facts as to whether Accurate fired Enright because of his perceived disability. Accurate’s
motion is therefore denied."

2. Enright’s ERISA Claim
Enright also claims that Accurate violated ERISA when it terminated his employment.

Section 510 of ERISA provides, in pertinent part:

"Because the Court has determined that a dispute of material fact exists under the direct method
of proving discrimination, the Court need not analyze Enright’s claim under the indirect method of
establishing ADA discrimination.

10


Douglas Corporation v. Green, 411 U.S. 792 (1973) to indirectly prove that Accurate intentionally
discriminated against him. Leisen v. City of Shelbyville, 153 F.3d 805, 807 (7"* Cir. 1998). Accurate
argues that Enright cannot succeed under either method.

a. Direct Method

Before considering Enright’s direct evidence of discrimination, the Court must address a
threshold issue - whether Enright is “a qualified individual with a disability” within the meaning of
the ADA. Because the ADA only covers “qualified individuals with disabilities,” the burden rests
with Enright to prove that he is disabled within the meaning of the statute. Roth v. Lutheran Gen.
Hosp., 57 F.3d 1446, 1453-54 (7" Cir. 1995).

While Accurate does not challenge that Enright was a “qualified individual,” it vigorously
disputes that Enright has a “disability” under the ADA. To demonstrate his disability, Enright may
show either “(A) a physical or mental impairment that substantially limits one or more of the 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. sec. 12102 (2); Hoeller v. Eaton Corp., 149 F.3d 621, 624-25 (7 Cir.
1998). Enright has elected to base his claim on the definition’s third prong.

The “regarded as” prong is intended to provide a remedy for discrimination based on
misperceptions about the abilities of impaired persons. Krocka v. City of Chicago, 203 F.3d 507, 513-
514 (7 Cir. 2000). To make out a claim under the “regarded as” prong, “it is necessary that a
covered entity entertain misperceptions about the individual.” Sutton v. United Air Lines, Inc., 527
U.S. 471, 489 (1999). These misperceptions may take the form of believing “either that one has a
substantially limiting impairment that one does not have or that one has a substantially limiting

impairment, when, in fact, the impairment is not so limiting.” Id. Accurate’s alleged perceptions fall



decided to fire Enright because Accurate management believed that the stress of Enright’s job was
not good for his medical condition. Enright also claims that Shafer did not offer him another
position at Accurate or offer any accommodation whatsoever. Accurate disputes that Enright’s
failing health motivated their employment decision. Rather, Accurate claims that Enright’s poor job
performance was the sole motivating factor behind the decision to terminate Enright. But at least
one Accurate manager, Mary Kuempel, testified that concerns for Enright’s health may have
prompted Accurate’s actions.

Following his termination, Enright filed a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging ADA discrimination. On January 21, 2001, the EEOC
gave Enright the right to sue and Enright timely brought the present proceedings. Accurate now
moves for summary judgment. Accurate argues that Enright has failed to present evidence
demonstrating that he is “disabled” under the ADA. Accurate also argues that Enright has failed
to rebut Accurate’s legitimate, non-discriminatory reasons for terminating Enright’s employment.
Regarding Enright’s ERISA claim, Accurate argues that Enright cannot prove that Accurate fired
Enright with the specific intent to interfere with Enright’s ERISA rights.

The parties have also filed motions attacking each other’s evidence. Enright asks the Court to
strike portions of Accurate’s submissions claiming that Accurate’s evidence is unsupported,
speculative, and slanderous. Accurate motions the Court to bar Enright’s vocational expert, citing
problems with the expert’s qualifications and methodology. The Court will address these latter
motions first.

IL. Discussion

A. Enright’s Motion. to Strike

Enright asks the Court to strike portions of Accurate’s statement of material facts,
memorandum of law, and supporting exhibits. Enright claims that Accurate presents unsupported

3


over the telephone, as Enright was responsible for reviewing and resolving all customer warranty
claims. Kuempal testifies that Enright’s performance was frequently unacceptable as Enright did not
always return customer phone calls in a timely fashion. In support of his criticisms, Kuempal
submits various evidence documenting Enright’s performance including a written performance
review, a warning letter, and an exhibit compiling customer complaints.

Enright’s first review came in February 1998, four weeks after he started working for
Accurate. Kuempal claims that he discussed Enright’s failure to return calls during this initial
review. Six months later, in August of 1998, Enright had his second review. As part of this review,
Kuempal gave Enright written notes requesting he return customer calls in a more timely fashion.
Other than this deficiency, the overall review was favorable and resulted in Enright obtaining a
significant salary raise. The next evidence relating to Enright’s performance is a warning letter
dated January 27, 1999. The letter explained Accurate’s concerns and required Enright to improve
within thirty days. Accurate admits that Enright’s performance did improve after the warning letter,
and that Enright received a generally positive annual review on February 25, 1999. Besides the
performance evaluations, Accurate submits a small collection of customer complaints lodged during
Enright’s tenure. A number of these complaints name Enright specifically.

After the February 25, 1999 annual review, Enright continued his duties without incident
until September 30, 1999. On this day, Enright experienced chest pains and shortness of breath
while at work. This prompted Kuempel’s wife, who also worked at Accurate, to drive Enright to his
doctor who then admitted Enright to a local hospital for observation. After his release a few days
later, Enright returned to work. Within an hour of his return, another Accurate manager, Steve

Shafer, called Enright into his office. According to Enright, Shafer explained that Accurate had


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

EASTERN DIVISION
JOSEPH ENRIGHT, )
Plaintiffs,
v. } No. 01 C 1686
ACCURATE TRANSMISSIONS, INC. The Honorable William J. Hibbler
Defendant. } DOCKE TE D

OCT 17 2093
MEMORANDUM OPINION AND ORDER

Plaintiff Joseph Enright filed this action against defendant Accurate Transmissions, Inc.
(Accurate), alleging that Accurate violated the American with Disabilities Act (ADA), 42 U.S.C. §
12101, et seq., and the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §
1001, et seq. Accurate has now filed for summary judgment. Additionally, Accurate has filed a
motion to bar Enright’s expert, and Enright has filed a motion to strike portions of Accurate’s
statement of material facts and corresponding exhibits. For the following reasons, Accurate’s motion
for summary judgment is denied in part and granted in part; Accurate’s motion to bar Enright’s
expert is denied; and Enright’s motion to strike is denied.

I. Background

Plaintiff Joseph Enright suffers from Lupus, an autoimmune disorder effecting the central
nervous system. In December of 1997, Richard Kuempal, a childhood friend and president of
Accurate, offered Enright a position at Accurate. Kuempal was aware of Enright’s medical
condition prior to offering him the position. Enright accepted Kuepal’s offer and began in January of

1998 as manager of Accurate’s warranty division. The position involved frequent client contact

“a


Il. Conclusion
Enright’s motion to strike is denied. Accurate’s motion to bar Enright’s vocational expert is
also denied. Accurate’s motion for summary judgment is denied as to Enright’s ADA claim because
a dispute of material fact exists whether Accurate terminated Enright because of his disability. With
regard to Enright’s ERISA claim, however, Accurate’s motion for summary judgment is granted as

Enright has not produced any evidence that Accurate specifically intended to interfere with Enright’s
ERISA rights.

IT IS SO ORDERED

fo fNYo3

United Statés District Court

12