Carter because of his responses on the Questionnaire was misguided or
ill-considered or even wrong. As long as Tennant honestly believed
its proffered reason, it is not a pretext.

Apart from Rebman’s testimony, which, as discussed, provides no
insight into the motives of the actual decision makers, Carter fails
to adduce any additional evidence that Tennant did not believe its
stated reason for his termination. Moreover, Tennant’s positive
attitude towards Carter after his workers’ compensation claim was
filed and after it was denied belie the notion that the Company
terminated him because of his claim. Plaintiff concedes that Tennant
accommodated his medical restrictions, and continued to give him
positive evaluations, encouragement and financial rewards throughout
the period. This Court finds no evidence that the reason Tennant
provides for Carter’s termination was a pretext and, as a result,
grants Tennant’s motion for summary judgment as to Count I.

Cc. Count II - Violation of the Privacy Act

The Privacy Act prohibits any employer from inquiring “in a
written application or in any other manner, of any prospective
employee or of the prospective employee’s previous employers, whether
that prospective employee has ever filed a claim for benefits under
the Workers’ Compensation Act .. . or received benefits under [that
Act].” 820 Inn. Comp. Stat. Ann. 55/10 (West 2003). Carter contends
that Tennant violated this prohibition when it terminated him for
failing to disclose that he had filed a claim for benefits or that he

had been receiving benefits under the IWCA.

~ 19 ~



Illinois courts have declined to use the burden-shifting
analysis in retaliatory discharge cases because application of the
burden shifting approach alters the elements a plaintiff must
establish under traditional Illinois tort law. See, e.g., Clemons v.
Mech. Devices, Co., 704 N.E.2d 403, 408 (111. 1998) (rejecting the
McDonnell Douglas method because it would “expand the tort of
retaliatory discharge by reducing plaintiff’s burden of proving the
elements of the tort.”). In a concurring opinion in Bourbon v. Kmart
Corp., 223 F.3d 469, 474 (7th Cir. 2000) (Posner, J., concurring),
Judge Posner elaborated on the effect McDonnell Douglas has on such
cases:

Applied to retaliation, the logic of the McDonnell Douglas

standard would compel summary judgment for the plaintiff

who showed that after lodging a complaint about

discrimination, he (but not any otherwise similarly

situated employee who did not complain) was fired or
otherwise subjected to an adverse employment action even
though he was performing his job in a satisfactory manner,
unless, again, the defendant presented a noninvidious
reason for the action. Without the boost given by

McDonnell Douglas, the plaintiff in such a case would have

to establish, as part of his prima facie case and thus

before the defendant had any burden of explanation, a

causal connection between the lodging of the complaint and

his being fired.

Id. Indeed, because of the possibility that the McDonnell Douglas
method conflicts with substantive state law, Judge Posner has
questioned the very propriety of using McDonnell Douglas in a
diversity case due to Erie doctrine considerations. Id. at 473-77.

While Tennant and Carter ostensibly embrace the McDonnell

Douglas method in their briefs, their arguments essentially follow

- 13 -



Department of Labor failed to resolve his Complaint. Indeed, while
he denies that the matter was resolved in his Response to Defendant’s
Local Rule 56.1 Statement of Uncontested Facts, he concedes in his
brief that “[u]pon Defendant agreeing to revise its form and bring
its parameters within the legal limits of the law, the Labor
Department issued an order . . . stating that its administration and
enforcement of the Act in the matter had concluded.” (P1.’s Resp. in
Opp’n to Def.’s Mot. for Summ. J. at 12.) Although Tennant argues
that it never admitted any wrongdoing and was not found to have
violated the Privacy Act, it appears that an agreement was reached
between the parties and that the Department of Labor found that the
issue had been resolved. As a result, Carter has no standing to

bring a private cause of action pursuant to section 55/15(c).

a

CONCLUSION
For the reasons set forth above, T lotion for Summary

Judgment is granted as to Counts I an

IT IS SO ORDERED.

erry D. Leimenweber, Judge
United States District Court

ate: see Le, 3a03
/

- 23 -


On September 29, 1999, Dr. Watkin submitted a Workers’
Compensation Attending Physician’s Supplemental Report to the
Company. In this form, Dr. Watkin described Carter’s injury as
“fa]cute low back pain reaggravated at work” and noted the date of
injury as November 30, 1998, the date on which Carter initially
injured his back while employed by Gurnee. In a subsequent report
dated November 9, 1999, Dr. Watkin again noted the date of injury as
November 30, 1998 and described Carter’s back problems as “chronic”
and frequently exacerbated. On November 9, 1999, Tennant’s workers’
compensation insurance carrier, Sentry Insurance, informed the
Company that it was denying Carter’s 1999 workers’ compensation
benefits claim (the “Tennant Claim”) because Carter had filed a
previous claim with Gurnee for his back injury and was receiving
physical therapy for his problem.

Carter continued to work for Tennant after his alleged
September 28, 1999 injury and while Sentry processed his workers
compensation claim. Throughout this period, Carter received positive
evaluations and comments from his supervisors. In his evaluations,
dated October 28, 1999 and November 15, 1999, Carter received ratings
of “meets” and “exceeds” expectations. He received the first of
these evaluations after he had filed the Tennant Claim, and received
the second after Sentry denied his claim. Moreover, in a separate
conversation that took place on November 15, 1999, Carter’s
supervisor, Kevin Cull (“Cull”), told Carter that he was pleased with

his work and that Carter should seek a promotion at Tennant. That



Tennant argues that Carter’s claim must fail for the following
two reasons: 1) it is barred by the statute of limitations set forth
in section 55/15 of the Privacy Act; and 2) Carter lacks standing to
bring a private cause of action under the Privacy Act.

1. Statute of Limitations

The Privacy Act requires an employee to file a complaint with
the Department of Labor “within 180 days after termination or the
complained of incident.” ILL. ADMIN. Cope tit. 56, § 360.120(a) (2002).
Tennant argues that Carter’s complaint is time-barred because he
filed it on January 29, 2001, over 600 days after completing the
Questionnaire, and over 400 days after he was terminated. Carter
claims that Tennant has waived the statute of limitations defense
because the Company failed to assert it in front of the Department of
Labor in its response to Carter’s complaint. The case Carter cites
as guidance on this issue is not on point, and a review of Illinois
cases suggests that the courts have not reached this issue.

Illinois courts, however, have repeatedly held that a party’s
failure to set out a statute of limitations defense in its answer to
a complaint “will not automatically result in waiver of that
affirmative defense.” Medrano v. Prod. Eng’g Co., 774 N.E.2d 371,
378 (Ill. App. Ct. 2002). Indeed, courts have frequently permitted
parties to argue the limitations period in their summary judgment
motions even where the parties failed to raise it as a defense in
their answers. Id. at 379 (collecting cases). In light of these

cases, it makes little sense for this Court to bar Tennant from

- 20 -



or subpoena to inspect the files of the employer or
prospective employer, if necessary. The Department shall
attempt to resolve the complaint by conference,
conciliation, or persuasion. If the complaint is not so
resolved and the Department finds the employer or
prospective employer has violated the Act, the Department
may commence an action in the circuit court to enforce the
provisions of this Act including an action to compel
compliance.
820 ILL. Comp. Stat. Ann. 55/15(b) (West 2003). Section 15(c) permits
an employee to bring an action to enforce the provisions of the Act
only if two conditions have been met: (1) “efforts to resolve the
employee’s or applicant for employment’s complaint concerning the
violation by conference, conciliation or persuasion under
subsection (b) have failed” and (2) “the Department has not commenced
an action in circuit court to redress the violation.” 820 ILL. Comp.
Svat. ANN. 55/15(c) (West 2003); Hampton v. Vill. of Washburn, 739
N.E.2d 1019, 1022 (Ill. App. Ct. 2000). Tennant argues that the
Department of Labor’s efforts to resolve Carter’s complaint pursuant

to section 15(b) were successful and that, as a result, Carter may

not bring a private cause of action for violation of the Privacy Act.

In his Response to Tennant’s Motion for Summary Judgment, Carter
contends that the only prerequisite for filing a private action is
that the Labor Board release the plaintiff to pursue other legal
remedies. He provides no statutory support for this assertion and
the Court finds no support for it in the plain language of the
Privacy Act. As a result, Carter must follow the requirements set

forth in section 15(c). Carter adduces no evidence that the

- 22 -



1997)). Even standing alone, Rebman’s comment is susceptible to
several interpretations. It could mean that Tennant fired Carter in
retaliation for filing a claim, but it could also mean that Tennant
fired Carter because he did not report a prior injury for which he
had filed a workers’ compensation claim. Indeed, when placed in the
context of his broader testimony, the later interpretation seems more
likely. Given its ambiguous nature, Rebman’s comment does not rise
to the level of direct evidence.

Moreover, the comment simply reflects the “understanding” of
Rebman, a man who Carter concedes was not a decision maker in his
termination. (Pl.’s Resp. to Def.’s Local Rule 56.1 Stmt. {I 86
88.) Carter further concedes that Rebman did not even know who made
the termination decision. (Id.) “Stray remarks, including isolated
statements, statements by non-decision makers, or statements by
decision makers unrelated to the decisional process itself, are
insufficient to establish discrimination.” Sola v. Ill. Human Rights
Comm’n, 736 N.E.2d 1150, 1161 (111. App. Ct. 2000) (internal quotation
marks omitted).

Even if Carter had somehow established a causal link between his
filing of a workers’ compensation claim and his termination, his
retaliatory discharge claim would still have failed because Tennant
has articulated a legitimate, nonpretextual reason for his discharge.
Both the Tennant Employee Handbook and the Questionnaire itself make
it clear that providing false or misleading information to Tennant

about injuries may be grounds for termination. Tennant explains that

-17-



provides no evidence that Tennant discharged him in retaliation for
filing the Gurnee Claim. He points to sections of Tennant’s briefs
as admissions of wrongdoing, but those sections merely indicate that
Tennant terminated Carter because he had failed to disclose his prior
injury, not because he had filed the workers’ compensation claim
associated with that injury. Summary judgment is mandatory “against
a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex, 477
U.S. at 322, For the above reasons, Carter’s claim of retaliatory
discharge is limited to the Tennant Claim.
2. Merits
In order to establish retaliatory discharge in the workers

compensation context, Carter must show (1) that he was employed by
Tennant before his injury occurred; (2) that he exercised a right
granted by the IWCA; and (3) that his discharge was causally related
to his filing a workers’ compensation claim. DePluzer v. Vill. of
Winnetka, 638 N.E.2d 1157, 1162 (Ill. App. Ct. 1994). Tennant did
not dispute the second prong in its initial brief although, as it
points out in its Reply Brief, Carter denies filing a workers’
compensation claim and argues that Tennant filed it on his behalf
without his consent or knowledge. Regardless, a workers

compensation claim was filed in this case and, therefore, the Court

will only address whether Carter was a Tennant employee at the time



truthfully and that Tennant terminated him in retaliation for
exercising his rights under the Illinois Workers’ Compensation Act
(“IWCA”), 820 ILL. Comp. Star. Ann. 305/1 et seg. (West 2003). Carter
further alleges that the Questionnaire violated the Privacy Act.
II. DISCUSSION
A. Summary Judgment

Summary judgment is appropriate if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as
amatter of law.” Fsep. R. Civ. P. 56(c). A fact is “material” if it
could affect the outcome of the suit under the governing law; a
dispute is “genuine” where 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).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In assessing the movant’s claim,
the court must view all the evidence and any reasonable inferences
that may be drawn from that evidence in the light most favorable to
the nonmovant. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997,
1003 (7th Cir. 2000). Once the moving party has met its burden, the
nonmoving party “may not rest upon the mere allegations” contained in
its pleading, but rather “must set forth specific facts showing that
there is a genuine issue for trial.” Fep. R. Civ. P. 56(e); Becker v.

-6-



same day Carter also received a retroactive merit increase in salary,
effective November 1, 1999.

Carter’s career at Tennant, however, was short-lived. According
to Tennant, sometime after November 10, 1999, Tennant’s Disability
Council, a committee that oversees workplace injuries and related
claims, met to discuss Carter’s alleged work-related injury, the
insurance company’s investigation and denial of Carter’s workers’
compensation claim, and his failure to disclose his preexisting
injury and ongoing treatment on the Questionnaire. The Disability
Council, which was chaired by Ryan Rebman, and whose members included
the Human Resources Manager, a Senior Attorney, the Industrial Health
Nurse, the Corporate Safety Engineer, and possibly Mike Anderson and
Cull, Carter’s supervisors, made the decision to terminate Carter on
the grounds that he had submitted a falsified Questionnaire. On
November 30, 1999, Cull and Anderson told Carter that he was being
terminated effective December 1, 1999.

On January 29, 2001, Carter filed a complaint with the Illinois
Department of Labor alleging violation of the Privacy Act. 820 Iu.
Comp. Stat. Ann. 55/1-20 et seq. (West 2003). On October 1, 2001, the
Department of Labor issued a Notice, declaring that it had “concluded
its administration and enforcement of the Act” and that it would
“take no further action in this matter.” Carter then filed this
action in the Circuit Court of Cook County on February 7, 2002. It
was removed to this Court on March 15, 2002. In his Amended

Complaint, Carter alleges that he had answered the Questionnaire



it terminated Carter because he violated this policy by falsifying
his Questionnaire. According to Tennant, Carter indicated on the
form that his “Back/neck trouble - slight misalignment of vertebrae”
had been corrected by a chiropractor in 1998 when, in fact, Carter
was still receiving weekly chiropractic treatments. Tennant also
argues that, in response to a question about whether Carter had seen
a medical doctor for any work-related illness or injury, Carter
indicated only that he had seen a doctor after catching his hair in
a motor shaft. Tennant contends that Carter should have also
disclosed that he had received, and was continuing to receive,
medical treatments for his preexisting and ongoing back injury.
Carter argues that he completed the Questionnaire truthfully and
that Tennant’s asserted reason for terminating him is a pretext. He
points out that he indicated on the form that he currently had or had
ever had “back/neck trouble/pain on lifting/bending.” He further
explains that in his description of this back/neck trouble he noted
1998 as the year that the problems had occurred and gave no
indication that his back problems had been solved at that time. The
issue in retaliatory discharge cases, however, is “not whether the
employer treated the employee fairly, but whether the discharge was
in retaliation for filing a workers’ compensation claim.” DePluzer,
638 N.E.2d at 1162-63. The court does “not sit as a super-personnel
department that reexamines an entity’s business decisions. ”
Roger, 21 F.3d at 151 (internal quotation marks and citations

omitted). It is unimportant whether Tennant’s decision to terminate

- 18 -



compensation claim” that Carter filed while a Tennant employee.
(Def.’s Mot. for Summ. J. at 2.) As support for this argument,
Tennant points to Carter’s deposition testimony, in which Carter
agreed that his retaliation claim is limited to the Tennant Claim.
Carter fails to rebut this argument in his Response Brief and instead
concedes that his “retaliation claim is based on the fact that after
being injured on the job for Tennant, Carter filed an Employee Injury
Report, which the Tennant Risk Management Specialist then used to
produce and file a state specific workers’ compensation claim with
Sentry Insurance.” (Pl.’s Resp. at 4.) In his Supplemental
Authority in Opposition to Defendant’s Motion for Summary Judgment,
which Carter filed almost a month after the summary judgment motion
was fully briefed, however, he suddenly argues that his retaliation
claim did extend back to encompass the Gurnee Claim.

Carter’s efforts at reviving this claim are, to appeal to a
cliché, simply too little, too late. Having conceded in his
deposition and, more importantly, in his summary judgment brief that
his allegations only relate to the Tennant Claim, Carter cannot use
his Supplemental Authority brief to advance a conflicting theory.
See, e.g., United States v. Cirrincione, 600 F. Supp. 1436, 1442 n.1
(N.D. Ill. 1985) (refusing to entertain new arguments raised in a
Supplemental Memorandum because defendants were only given leave to
file the brief to cite to supplemental authority). Even if this
Court were to include the Gurnee Claim in Carter’s retaliation count,

those allegations would not survive summary judgment. Carter



Minute Order Forms (06/97)

United States District Court, Northern District of Illinois

\vame of Assigned Judge Harry D. Leinenweber Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 1925 DATE 6/16/2003
CASE Kevin C. Carter vs. Tennant Company
TITLE

MOTION:

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

DOCKET ENTRY:

Copy to judge/m:

(1) 0 Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) oa Answer brief to motion due___. Reply to answer brief due.
(4) im Ruling/Hearing on set for at
(5) Oo Status hearing{held/continued to} [set for/re-set for] on set for at .
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) im) Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial} {Hearing} held/continued to at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QOFRCP4(n) Cl Local Rule 4t.1 OO FRCP41(a)(1) O FRCP41(a)(2).
(0) so [Other docket entry] _ ENTER MEMORANDUM OPINION AND ORDER: Tennant’s Motion for
Summary Judgment is GRANTED as to Counts I and II.
al [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
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discharge test by demonstrating that he was employed by Tennant when
he reaggravated his existing injury. A review of Illinois cases
provides little insight into whether aggravation of an existing
injury is a sufficient injury for the purposes of a retaliatory
discharge claim. The tort action for retaliatory discharge, however,
was created to ensure that employers would compensate their employees
promptly for their injuries. See Zimmerman v. Buchheit of Sparta,
Inc., 645 N.E.2d 877, 884 (ill. 1994). Illinois courts have
repeatedly heid that an employee is entitled to workers’ compensation
even if that employee sustains a work-related injury that aggravates
a prior condition. See, e.g., Goldblatt Bros., Inc. v. Indus.
Comm’n, 421 N.E.2d 909, 911 (Ill. 1981); City of Springfield, Ill.
Police Dep’t v. Indus. Comm’n, 766 N.E.2d 261, 264-65 (111. App. Ct.
2002). It follows that if aggravated injuries are compensable under
the IWCA, such injuries should be subject to the Act’s protection
and, therefore, may be the subject of a retaliatory discharge action.
b. Causality

The third element of the retaliatory discharge claim requires
Carter to establish causality between the filing of the workers’
compensation claim and his discharge. Before addressing this
element, this Court must indulge in a brief discussion of how
Illinois retaliatory discharge cases that are brought in a federal
court should be analyzed. This issue is the source of some confusion

in the parties’ briefs, and of some debate in the Seventh Circuit.

-1ll-



of his injury, and whether his discharge was causally connected to
the filing of the workers’ compensation claim.
a. Date of Injury

Carter must first establish that his injury occurred while he
was a Tennant employee. There are two predominant disputes between
the parties: 1) whether Carter sustained a new injury while working
for Tennant, or whether he merely aggravated an injury he incurred
while employed by Gurnee, and 2) whether Carter may bring an action
for retaliatory discharge if his injury was a reaggravation of a
prior injury and not a new and distinct problem.

Tennant contends that Carter did not sustain a distinct injury
while working for the Company. As evidence, it points to the reports
issued by Dr. Watkin after the September 28, 1999 incident, which
repeatedly list the date of Carter’s injury as November 30, 1998 and
which describe Carter’s 1999 injury as a reaggravation of existing
back pain. Carter, in turn, argues that the settlement agreement
entered into between the parties for workers’ compensation benefits
records the date of his injury as September 28, 1999 and describes
that injury not only as “aggravated previous injury,” but also as
“strain.”

Carter argues that even if his injury were a reaggravation of
his prior back problems, it would still constitute an injury for the
purposes of this prong. This Court need not determine whether Carter
suffered a new and distinct injury on September 28, 1999 because it

agrees that Carter may satisfy the first prong of the retaliatory

- 10-



Tenenbaum-Hill Assoc., Inc., 914 P.2d 107, 110 (7th Cir. 1990);
Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.
1989). It “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
B. Count I - Retaliatory Discharge

The IWCA makes it unlawful for an employer to discharge an
employee for exercising his or her rights under the Act. § 305/4(h).
In Count I, Carter alleges that Tennant discharged him in retaliation
for filing a workers’ compensation claim.

1. Claim Definition

Before analyzing the merits of the claim, the Court must first
address the parties’ dispute over which workers’ compensation claim
forms the basis for the retaliation count. In his Amended Complaint,
Carter alleges that he was terminated “as a direct consequence of
learning of his exercise of his rights as guaranteed under the
Illinois Workers’ Compensation Act before he became its employee, and
because he gave Defendant notice that he had strained his back at
work.” (Pl.’s Am. Compl. @ 27.) He further alleges that he was
“discharged and not rehired because he exercised his Workers’
Compensation rights.” (Id. § 28.) Carter’s Amended Complaint,
therefore, appears to allege that Tennant terminated him in
retaliation for filing both the Gurnee Claim and the Tennant Claim.

Tennant argues in its Motion for Summary Judgment, however, that

Carter’s retaliation claim is “based solely on the workers’



arguing the statute of limitations in its summary judgment motion
simply because the Company failed to include that defense in a
response filed in a Department of Labor proceeding. That proceeding,
after all, has an entirely different set of rules and standards. The
procedure set forth in the Privacy Act for filing a claim and a
response makes no mention of how a party should raise affirmative
defenses such as the statute of limitations defense. See § 360.120.
Indeed, under the Privacy Act procedure, an employer is not even
obligated to file a response to the employee’s complaint; the
Department of Labor still reviews the claim to determine whether it
merits an investigative conference. § 360.120(g). Moreover, Tennant
did raise the statute of limitations defense in the answer it filed
in this proceeding. Carter, as the party claiming waiver, “has the
burden of proving a clear, unequivocal and decisive act of its
opponent manifesting an intention to waive its rights.” Ciers v.
O.L. Schmidt Barge Lines, Inc., 675 N.E.2d 210, 213 (Ill. App. Ct.
1996). He has failed to meet this burden, and the Court finds that
his Privacy Act count is time-barred.
2. Standing

Even if Carter’s action were not time-barred, he lacks standing
to bring a private cause of action under the Privacy Act.
Section 15(b) of the Privacy Act states that:

If an employee or applicant for employment alleges that he

or she has been denied his or her rights under this Act, he

or she may file a complaint with the Department of Labor.

The Department shall investigate the complaint and shall

have authority to request the issuance of a search warrant

-21-


listed “hair caught on motor shaft, resulting in swelling of scalp
and face” as his injury and specified that he had lost one week from
work as a result of this accident. He made no mention of the back
injury he had suffered while employed by Gurnee. The third question
asked “Did you see a medical doctor for any work-related
injury/illness?” Carter again answered “yes” and wrote that he “saw
doctor following above incident.” The only incident listed earlier
on that page was the motor shaft accident. Carter signed the
Questionnaire, affirming that all of his answers were “complete and
true” and acknowledging that “[{a]ny misrepresentation or omission may
be justification for refusal of employment, or if employed,
termination of employment.”

On April 26, 1999, after successfully completing a physical
examination and drug test, Carter began working for Tennant as a
Field/Area Service Representative. He continued to receive
chiropractic treatments for his prior back injury and, for several
months, his treatments were covered by Gurnee workers’ compensation
benefits. On September 15, 1999, however, Gallagher Bassett
suspended these benefits after Carter failed to appear for a medical
examination.

Two weeks later, on September 28, 1999, Carter informed his
Tennant supervisor that he had injured his back while working at a
customer site. He immediately sought treatment from his regular
chiropractor, Dr. Jeffrey Watkin. Dr. Watkin recommended two days of

light duty, which Tennant accommodated.



the traditional Illinois tort approach. Both parties ignore the
prima facie test entirely, the fourth prong of which Carter fails to
satisfy. Due to the confusion surrounding the application of
McDonnell Douglas to Illinois retaliatory discharge claims, however,
neither party should be faulted for failing to apply McDonnell
Douglas correctly. Given the parties’ use of the Illinois tort
approach in their arguments, the Court will analyze Carter’s claim
under that traditional tort approach instead of under the McDonnell
Douglas approach. It should be noted, however, that because Tennant
successfully puts forth a lawful, nonpretextual reason for
discharging Carter, Tennant would succeed in obtaining summary
judgment on this count under either method.

In order to establish the third element of retaliatory
discharge, Carter must “affirmatively show that the discharge was
primarily in retaliation for his exercise of a protected right.”
Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir.
1994) (citing Marin, 562 N.E.2d at 286). While Tennant is under no
obligation to do so, it may provide an alternative explanation for
terminating Carter. Clemons, 704 N.E.2d at 406. If that explanation
is valid and nonpretextual, Carter cannot prove causation. Id. The
ultimate issue in the element of causation is what the employer’s
motive was when it discharged the employee. Id.

Because an employer can discharge an at-will employee such as
Carter for any reason or for no reason at all, it is Carter’s burden
to prove that he was discharged in violation of the IWCA. Roger, 21

- 14 -



encouragement to seek promotion, and the retroactive merit salary
increase.

Carter also alleges that Ryan Rebman’s deposition testimony
proves that Tennant terminated him for filing a workers’ compensation

claim. The relevant portion of Rebman’s deposition is as follows:

Q. Do you know the basis - basis for Mr. Carter’s
termination?

A. Somewhat.

Q. And what’s your understanding?

A. I don’t - I believe it was - my understanding is his
termination is because of filing a work comp claim.
I think it was part of it. From what I understand
there’s several issues pending. I don’t know what
specifically they all are.

Q. Did you discuss the question as to whether or not the
way Mr. Carter completed this form constituted
falsification of his application for employment?

A. I believe we discussed that, yes.

Q. And what was, in your judgment, false about - on this

employment health history?
A. In my judgment, he didn’t talk about his - him being
- currently being - or he was seeking - he was being
treated for work comp injury while employed with
Tennant Company.
(Rebman Dep. at 52-53.)
In arguing that Rebman’s testimony is direct evidence of wrongdoing,
Carter focuses on Rebman’s statement that he understood Carter's
termination “is because of filing a work comp claim.” (Id. at 52.)
Direct evidence, however, is evidence that proves a fact “without
reliance on inference or presumption.” Lalvani v. Ill. Human Rights

Comm’n, 755 N.E,2d 51, 65 (111. App. Ct. 2001) (citing Hunt-Golliday

v. Metro. Water Reclamation Dist. 104 F.3d 1004, 1010 (7th Cir.



Bassett. Gallagher Bassett approved Carter’s claim, and in December
1998, began paying for frequent and regular chiropractic treatments.
In April 1999, Carter resigned from Gurnee. Until September 15,
1999, however, he continued to receive coverage for his chiropractic
visits from Gurnee’s workers’ compensation benefits.

Shortly after leaving Gurnee, Carter applied for a position with
Tennant Company. As part of Tennant’s hiring process, Carter was
required to fill out a Consent to Drug Testing and Information Sheet,
as well as a Health History Questionnaire (the “Questionnaire”). He
completed both documents on April 19, 1999. The Questionnaire began
by asking Carter to “place an (X) next to any of the following
conditions that you now have or ever have had.” In response, Carter
placed an “X” next to “allergies/hay fever” and “back/neck
trouble/pain on lifting/bending.” In the explanatory section for
these conditions, Carter wrote “Allergies/hay fever - controlled with
OTC medication if needed” and “Back/neck trouble - slight
misalignment of vertebrae; corrected by chiropractic adjustment.”
Opposite the description of his back/neck trouble, in a column
labeled “Year,” Carter wrote 1998.

The second page of the Questionnaire. asked Carter to place an
“xX” in either a yes or a no box next to a list of questions. Carter
answered “yes” to the first question, which asked whether Carter had
suffered “occupational injuries, accidents or illnesses.” He also
answered yes to the next question, which asked “Did you lose time

from work for a work-related injury or illness?” Carter, however,



FILED

JUN 1 6 2003

JUDGE HARRY D. LEINENWEBER
U.S. DISTRICT COURT JUDGE

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

KEVIN C. CARTER,

Plaintiff, Case No. 02 C 1925
v.
Hon. Harry D. Leinenweber
TENNANT COMPANY,

Defendant.

MEMORANDUM OPINION AND ORDER

In this diversity action, which was removed to federal court,
plaintiff Kevin C. Carter (“Carter” or “Plaintiff”), an Illinois
resident, is maintaining a two-count complaint against Tennant
Company (“Tennant” or “the Company”), a foreign corporation
incorporated in Minnesota, alleging retaliatory discharge and
violation of the Illinois Privacy in the Workplace Act (the “Privacy
Act”). Before the Court is Tennant’s Motion for Summary Judgment
filed pursuant to Federal Rule of Civil Procedure 56. For the
following reasons, the Court grants the motion.

I. BACKGROUND

Except as noted, the following facts are undisputed for summary
judgment purposes. From August 1998 until April 1999, Kevin Carter
served as a part-time custodian for Gurnee School District 56
(“Gurnee”). On November 30, 1998, while working for Gurnee, Carter
injured his back and filed a workers’ compensation claim (the “Gurnee

Claim”) with the School District’s compensation insurer, Gallagher

S



The Seventh Circuit has stated that federal courts may use the
McDonnell Douglas burden-shifting method to analyze such cases.
Hiatt v. Rockwell Int’l Corp., 26 F.3d 761, 767 (7th Cir. 1994).
Under this method, a plaintiff must first establish a prima facie
case of retaliatory discharge by demonstrating that he was 1) ina
protected class; 2) performing his job satisfactorily; 3)
nevertheless the subject of a materially adverse employment action;
and 4) that others outside of his protected class were treated more
favorably. Id. at 768. If the plaintiff successfully establishes
the prima facie case, the defendant must provide a _ lawful,
nondiscriminatory reason for discharging him. Id. The burden then
shifts back to the plaintiff to demonstrate that the proffered reason
is a pretext for unlawful discrimination. Id.

Alternatively, a federal court may elect to analyze a
retaliatory discharge claim under the Illinois tort approach. Fratto
v. Am. Airlines, Inc., No. 94 C 7765, 1996 WL 288520, at *7 n.5 (N.D.
Ill. May 30, 1996). This approach simply requires the plaintiff to
demonstrate the requisite third element of a retaliatory discharge
claim, viz., that his discharge was causally related to the filing of
the workers’ compensation claim. Marin v. Am. Meat Packing Co., 562
N.E.2d 282, 285 (Ill. App. Ct. 1990). The plaintiff cannot establish
causality if the employer has a valid and nonpretextual reason for

the termination. Id.

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F.3d at 149, The two short arguments Carter makes to establish
causality are insufficient to meet this burden, He first asserts
that the proximity in time of his termination from Tennant to his
exercise of his rights under the IWCA is evidence of retaliatory
discharge. Illinois courts have held that a party may establish a
prima facie case of retaliatory discharge by showing “a short time
span between the exercise of the employee’s rights under the Workers’
Compensation Act and the employer’s action discharging the employee.”
Hugo v. Tomaszewski, 508 N.E.2d 1139, 1141 (Ill. App. Ct. 1987).
Carter, however, provides no insight into the relevant time span in
this case; indeed, earlier in his brief he denies even filing a
claim. All that this Court can deduce from the facts is that the
Tennant Claim was filed sometime after September 28, 1999 and that
the Disability Council decided to terminate Carter sometime after
November 10, 1999. The “causality requirement calls for more than a
sequential connection.” Roger, 21 F.3d at 149 (citing Marin, 562
N.E.2d at 286). On its own, the relevant time span in this case is
not compelling circumstantial evidence of wrongdoing. Cf. Czubak v.
ICEE USA Corp., 1997 U.S. Dist. LEXIS 11966, at *10 (N.D. Ill.
Aug. 12, 1997) (finding that plaintiff established a prima facie case
when he was terminated seven days after filing a workers
compensation claim). It carries even less weight when considered
alongside Tennant’s positive treatment of Carter during that exact

time period, namely, the good evaluations of his work, the

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