1 

 IN THE UNITED STATES DISTRICT COURT FOR THE

 NORTHERN DISTRICT OF ILLINOIS

 WESTERN DIVISION

Matthew Kirchhoff, ) 

 ) 

Plaintiff, ) Case No. 20 C 50242 

 ) 

 vs. ) 

 ) Judge Philip G. Reinhard 

Chem Processing, Inc. ) 

 ) 

Defendant. ) 

 ORDER

For the reasons stated below, defendant’s motion for summary judgment is granted as to 

plaintiff’s claims under the ADA, granted as to the claim under the FMLA that plaintiff was 

discouraged from using the FMLA leave he had been granted, denied as to his claim under the 

FMLA that he was fired for using FMLA leave and denied as to the Illinois retaliatory discharge 

claim. The parties are directed to contact Magistrate Judge Schneider within 28 days to consider 

settlement possibilities.

 STATEMENT-OPINION

Plaintiff, Matthew Kirchhoff, brings this action against his former employer, Chem 

Processing Inc., claiming defendant unlawfully fired him in violation of the Americans with 

Disabilities Act (42 U.S.C. § 12101, et seq.) (“ADA”) (Count II), the Family Medical Leave Act 

(29 U.S.C. § 2615) (“FMLA”) (Count III), and the Illinois common law prohibiting retaliatory 

discharge (Count I). Subject matter jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 and 

1367. Defendant moves [53] for summary judgment. 

The court will first address the federal claims. Plaintiff claims he was disabled within the 

meaning of the ADA, requested and was granted a reasonable accommodation (a first-floor 

workstation) to perform his job; that defendant then took away that reasonable accommodation 

without engaging with plaintiff in the interactive process to find another reasonable 

accommodation; and that defendant fired him when he objected to the removal of his reasonable 

accommodation without any effort being made to discuss with him other possible 

accommodations. Plaintiff’s FMLA claims are that he was discouraged by defendant from using 

the FMLA leave he had been granted and that he was fired for using FMLA leave. 

Chad Bertrand was defendant’s president. Kenneth James Young was defendant’s plant 

manager. Al Hudson was defendant’s maintenance supervisor. Plaintiff was a maintenance 

technician for defendant. Plaintiff believed Hudson was his direct supervisor, but defendant 

contends Young was plaintiff’s direct supervisor. 

Prior to working for defendant, plaintiff had injured his back in a fall from a ladder. He 

took pain medication for this condition. Plaintiff began working for defendant on April 3, 2018. 

A year later, on April 5, 2019, plaintiff applied for FMLA leave. Prior to seeking FMLA leave, 

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plaintiff had been written up for absences. He was given a written warning in November 2018 

for absences in October and November 2018. 

When he applied for FMLA leave, plaintiff sought intermittent leave. In the Certification 

of Health Care Provider for Employee Serious Health Condition (Family Medical Leave Act) 

(“Certification”), submitted pursuant to plaintiff’s FMLA leave request, plaintiff’s health care 

provider, Heather Leasure, N.P., identified plaintiff’s condition as chronic neck and low back 

pain, small disc herniation, annular tear at L5-S1 and myofascial back pain relieved by rest. She 

stated that the condition would cause episodic flare-ups periodically preventing plaintiff from 

performing his job functions and that it would be medically necessary for him to be absent from 

work during the flare ups because rest helps relieve plaintiff’s myofascial back pain. Dkt # 52-6, 

p. 92. She estimated the flare-ups would occur once per month and last for 1-2 days. Id. 

According to N.P. Leasure’s progress notes of July 16, 2019, plaintiff’s pain was constant and 

aggravated by sitting, standing, walking, long car rides and bending forward. Id., p. 48. 

However, this information in the July 16, 2019 progress notes is not in the Certification. 

Plaintiff was granted intermittent FMLA leave and took it at various times until his termination. 

He was never written-up for any absence after being allowed intermittent FMLA leave. 

However, plaintiff contends that when he utilized the intermittent leave he had been 

granted, Hudson told one of plaintiff’s co-workers that plaintiff “was on his last leg and digging 

his own grave, and if he continued calling off, he was going to lose his job.” Dkt # 72, p.26, 

citing Deposition of Shaun Swick, Dkt # 69-4, p. 23 (“I remember Al saying that he was on his 

last leg and that if he keeps calling off, that he is going to basically lose his job. I mean like Matt 

was digging his own grave so to speak.”) Swick testified he believed Hudson made these 

comments when plaintiff was taking FMLA time off. Dkt 69-4, p. 23. 

Defendant’s maintenance department is in the basement of its facility. In or around July 

2019, plaintiff relocated his workstation from the basement to the first floor. Plaintiff claims 

Hudson allowed him to make this move as an accommodation for plaintiff’s back pain by 

providing him relief from going up and down the stairs. Dkt # 68, p. 3; Dkt # 52-4, p. 24. 

Defendant argues plaintiff moved to the first floor on his own initiative, not because defendant 

had provided the relocation as a disability accommodation, and that defendant had allowed

plaintiff to stay on the first floor until defendant needed the space. Dkt # 74, p. 19. 

On September 23, 2019, Young told plaintiff he had to move his stuff back to the 

basement. Dkt # 68, p. 11. Plaintiff’s response to being told to move back to the basement was 

to say “That ain’t going to happen”, “it’s leaking chemicals down there” and that he was not 

going to go there. Id.

1

 Young asked plaintiff to show him where there were active leaks in the 

basement, and they went to the basement together. Young did not believe the leaks plaintiff 

1

 Plaintiff denies making this statement in his response to defendant’s statement of facts, admitting only that “he said it 

was unsafe there due to chemicals leaking in the basement.” Dkt # 68, p. 11. However, he does not cite to anything in the record 

that supports his assertion that he only “said it was unsafe there due to chemicals leaking in the basement.” His citations in

support of his response to defendant’s fact paragraph 38 only point to evidence that he moved his stuff to the basement after his 

interaction with Young. He points to no evidence that contradicts Young’s account of what plaintiff said. LR56.1(e)(3) provides 

that, in its response to a statement of facts, “[t]o dispute an asserted fact, a party must cite specific evidentiary material that 

controverts the fact and must concisely explain how the cited material controverts the asserted fact. Asserted facts may be 

deemed admitted if not controverted with specific citations to evidentiary material.” Plaintiff has not met this requirement and 

the court deems defendant’s account of plaintiff’s statement to Young admitted. LR56.1(e)(3).

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showed him were active leaks. Id., p.12. Plaintiff told Young he would like to speak with 

Bertrand about the matter. Id., p. 13. After this interaction with Young, and prior to his 

termination a couple hours later, plaintiff moved his workstation back to the basement.

Shortly after his interaction with plaintiff, Young went to lunch with Bertrand. He

advised Bertrand that plaintiff wished to speak with him, provided Bertrand with a full account 

of his interaction with plaintiff that morning and recommended plaintiff’s employment be 

terminated. Id. 

When Bertrand and Young returned from lunch, they met with plaintiff. Bertrand told 

plaintiff that he was tired of having to work around plaintiff’s bad attitude and that he was tired 

of plaintiff not getting along well with other employees. Id. Bertrand advised plaintiff that he 

had decided to terminate plaintiff’s employment based on his insubordination and bad attitude. 

Id., p. 14. Defendant asserts plaintiff admitted during this meeting that he had a bad attitude. Id. 

Plaintiff disputes he agreed he had a bad attitude. Id. He asserts that during his deposition he 

testified that he did not exactly remember how he responded to being asked about having a bad 

attitude and was neither agreeing nor disagreeing with defendant about this “but believes he did 

ultimately acknowledge his attitude.” Id. 

On summary judgment, the court gives “the non-moving party, the benefit of conflicting 

evidence and any favorable inferences that might reasonably be drawn from the evidence. 

Summary judgment is proper when the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law. A dispute of fact is 

genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving 

party. The substantive law of the dispute determines which facts are material.” Runkel v. City of 

Springfield, 51 F.4th 736, 741 (7th Cir. 2022) (quotation marks and citations omitted). In 

considering summary judgment, the court does not “weigh conflicting evidence, resolve 

swearing contests, determine credibility, or ponder which party’s version of the facts is most 

likely to be true.” Id. at 742 (quotation marks and citation omitted).

As an initial matter, plaintiff contends defendant waived any argument against plaintiff’s 

FMLA and ADA retaliation claims. “Retaliation claims under the FMLA and ADA require three

familiar elements: (1) the employee engaged in statutorily protected activity; (2) the employer 

took adverse action against the employee; and (3) the protected activity caused the adverse 

action.” Freelain v. Village of Oak Park, 888 F.3d 895, 900, 901 (7th Cir. 2018).

Plaintiff argues that, as to his FMLA claims, defendant did not make any argument in its 

opening brief addressing plaintiff’s claim that defendant retaliated against him for using FMLA 

leave when it fired him nor did it make any argument addressing plaintiff’s claim that it violated 

the FMLA’s interference provisions by using his leave “as a negative factor in employment 

actions” when “it fired him, in part, for taking leave.” Plaintiff argues this constitutes a waiver 

of any argument on these issues. Plaintiff contends the only FMLA argument defendant did not 

waive was on the question whether threats by defendant’s maintenance supervisor, Al Hudson, 

violated the FMLA. 

Defendant’s opening brief did not address plaintiff’s claim his termination was an 

adverse action taken against him by defendant in retaliation for his use of FMLA leave. 

Defendant’s argument against plaintiff’s FMLA claims in its opening brief was that plaintiff 

never alleged any injury as the result of Hudson’s alleged threats because he never alleged, he 

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was denied any leave he requested and “unfulfilled threats are not adverse employment actions.” 

Dkt # 54, p.15. 

In its reply, defendant contends it did not waive any argument against plaintiff’s claim he 

was fired for using FMLA leave. It contends plaintiff’s complaint “does not separate 

Defendant’s alleged interference with Plaintiff’s FMLA from Defendant’s alleged retaliation 

against Plaintiff in connection with FMLA leave.” Dkt # 74, p. 22. However, in its order [28] 

denying defendant’s motion to dismiss, the court found plaintiff had stated a claim for relief 

under an FMLA retaliation theory where his use of FMLA leave was the statutorily protected 

activity, his termination was the adverse employment action and his use of FMLA leave was the 

cause of his termination. Defendant’s opening brief did not address plaintiff’s claim that he was 

terminated in retaliation for using FMLA leave. It only argued plaintiff did not allege he was 

ever denied any FMLA leave he requested. Defendant has waived, for purposes of summary 

judgment, any argument in opposition to plaintiff’s claim he was terminated in retaliation for 

using FMLA leave.

Plaintiff also argues defendant has waived any argument in opposition to his ADA 

retaliation claim. However, defendant’s opening brief argued that “without knowledge of 

Plaintiff’s disability, Defendant could not possibly have fired defendant ‘because of’ his 

disability, as the ADA requires for liability to attach.” Dkt # 54, p. 11. Defendant’s opening 

brief, therefore, based on defendant’s lack of knowledge of plaintiff’s disability, did challenge 

plaintiff’s claim that he was fired in retaliation for exercising his rights under the ADA so the 

issue must be addressed on the merits. 

FMLA

Plaintiff argues Hudson’s comments set forth above, discouraged him from taking the 

intermittent FMLA leave he had been granted. Defendant argues plaintiff does not have an 

FMLA claim because it never denied a request by plaintiff for intermittent FMLA leave. 

Therefore, Hudson’s threats were unfulfilled and unfulfilled threats are not adverse employment 

actions. Defendant is incorrect. 

“[D]enial of FMLA benefits is not required to demonstrate an FMLA interference 

violation. Interference or restraint alone is enough to establish a violation, and a remedy is 

available under [29 U.S.C. § 2617] if the plaintiff can show prejudice from the violation.” 

Ziccarelli v. Dart, 35 F.4th 1079, 1089 (7th Cir. 2022) (emphasis in original). “Threatening to 

discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies 

as interference with FMLA rights.” Id. at 1090. However, to recover for a violation of the 

FMLA’s interference provision (29 U.S.C. § 2615(a)(1)), plaintiff must also show he was 

prejudiced by defendant’s unlawful actions. Ziccarelli v. Dart, 35 F.4th at 1089. 

Plaintiff asserts in paragraph 49 of his statement of facts that because of the comments by 

Hudson that plaintiff was going to lose his job if he kept calling off, plaintiff “did not take 

additional leave days he was entitled to.” Dkt # 72, p. 26. However, he does not cite to any 

evidence in the record that supports the assertion Hudson’s comments discouraged him from 

taking leave he was entitled to take. Plaintiff cites to his deposition where he testifies there were 

times when he had flare-ups but felt “compelled to stay there” because he “felt guilty taking a 

day off because of what they needed.” Dkt # 52-4, p.19. His other citations in paragraph 49 

concern Hudson’s comments themselves. None of the citations support the statement that 

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Hudson’s comments caused him not to take leave he was entitled to take. Plaintiff does not cite 

to any other evidence to support his claim that Hudson’s comments caused him not to take leave 

to which he was entitled. Without such evidence, defendant is entitled to summary judgment on 

plaintiff’s interference claim based on Hudson’s comments.2

ADA

Defendant argues plaintiff was not disabled within the meaning of the ADA; was granted 

the only accommodation he ever asked for (intermittent leave); that plaintiff moved his 

workstation to the first floor unilaterally - not as the result of a request to defendant for such a 

move as a reasonable accommodation for his disability; that plaintiff never asked for a first floor 

workstation as an accommodation; that granting plaintiff a first floor workstation would have 

imposed an undue hardship on defendant; and that plaintiff was fired for his “bad attitude” and 

insubordination not for asking to keep his workstation on the first floor as an accommodation for 

his disability.

“Section 12112(a) of the ADA prohibits employers from discriminating ‘against a 

qualified individual on the basis of disability in regard to job application procedures, the hiring, 

advancement, or discharge of employees, employee compensation, job training, and other terms, 

conditions, and privileges of employment.’ 42 U.S.C. § 12112(a).” Brooks v. Avencez, 39 F.4th

424, 433 (7th Cir. 2022). To prove a violation of § 12112(a), plaintiff must show (1) he is 

disabled; (2) he is otherwise qualified to perform the essential functions of the job with or 

without reasonable accommodation; (3) he suffered an adverse employment action; and (4) the 

adverse action was caused by his disability. Id. 

 The term disability as relevant to this case, “means, with respect to an individual--(A) a 

physical or mental impairment that substantially limits one or more major life activities of such 

individual,” 42 U.S.C. § 12102(1)(A), and “major life activities include, but are not limited to, 

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, 

lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, 

and working.” 42 U.S.C. § 12102(2)(A). “An impairment that is episodic or in remission is a 

disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 

12102(4)(D). “The determination of whether an impairment substantially limits a major life 

activity shall be made without regard to the ameliorative effects of mitigating measures such as . 

. . medication.” 42 U.S.C. § 12102(4)(E)(i)(I). 

“An impairment that is episodic or in remission is a disability if it would substantially limit a 

major life activity when active.” 42 U.S.C. § 12102(4)(D). “The determination of whether an 

impairment substantially limits a major life activity shall be made without regard to the 

ameliorative effects of mitigating measures such as . . . medication.” 42 U.S.C. § 

12102(4)(E)(i)(I).

N.P. Leasure’s Certification, submitted for plaintiff’s FMLA application, describes 

plaintiff’s condition and states that the condition would cause episodic flare-ups preventing 

plaintiff from performing his job functions. A reasonable jury could find from this evidence 

plaintiff is disabled under the ADA because the major life activity of working is substantially 

2

 Because the lack of evidence that plaintiff did not take leave to which he was entitled due to Hudson’s comments resolves this 

claim, the court need not decide whether Hudson’s comments were a violation by defendant of the FMLA’s interference 

provision (29 U.S.C. § 2615(a)(1)). 

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limited during the condition’s episodic flare-ups. Plaintiff was granted intermittent FMLA leave 

based on the Certification, so defendant was aware of the contents of the Certification and, 

therefore, of plaintiff’s disability.

Plaintiff argues defendant violated the ADA by failing to reasonably accommodate his 

disability and by firing him in retaliation for invoking his right to a reasonable accommodation. 

To establish a claim for failure to accommodate, plaintiff must show that: (1) he is a qualified 

individual with a disability; (2) defendant was aware of his disability; and (3) defendant failed to 

reasonably accommodate his disability. Preddie v. Bartholomew Consolidated School Corp., 799 

F.3d 806, 813 (7th Cir. 2015). A qualified individual with a disability is an individual who, with 

or without a reasonable accommodation can perform the essential functions of his job. Id.

There is no dispute that plaintiff could perform the essential functions of his job. 

Defendant contends that even if plaintiff was disabled, which it disputes, that plaintiff did not 

need, nor ever asked for, any accommodation other than intermittent FMLA leave, which he was 

granted and utilized, to perform the essential functions of his job. Plaintiff argues that defendant 

(through Hudson) allowed him to move his workstation to the first floors as an accommodation 

for his disability but then removed the accommodation without discussing alternative 

accommodations.

While plaintiff presents evidence that he was allowed to relocate his workstation to the 

first floor, he does not cite any evidence that he asked defendant to accommodate his disability 

by allowing him to move to the first floor or that defendant allowed him to relocate as an 

accommodation for his disability. Plaintiff cites paragraph 51 of his statement of facts as 

supporting his claim that he made constant requests to Hudson to relocate his workstation to the 

first floor because going up and down the stairs exacerbated the pain in his back. However, 

paragraph 51 cites plaintiff’s deposition testimony where he testified that it “was almost a daily 

conversation between Al and I of why maintenance wasn’t on the first floor.” Dkt 52-4, p. 23. 

When asked if he meant the entire maintenance department having a spot on the first floor, he 

responded: “Not just a spot but maybe a substation kind of where we could keep some tools, 

some parts, and do some work instead of going up and down the stairs all the time.” Id. He also 

cites Swick’s deposition where Swick was asked “Did you ever talk to Matt Kirchhoff about why 

he moved his toolbox up to that area?” and Swick responded “It’s because the up and down the 

stairs was bothering his back. And he had complained of chemicals dripping on him while he 

was sitting by the toolbox.” Dkt 69-4, p. 13. 

His brief also cites his response to paragraph 8 of defendant’s statement of facts. His 

paragraph 8 response states that defendant “placed a maintenance box and welding station 

upstairs and, [defendant] and Hudson eventually allowed Kirchhoff to move upstairs and that 

resulted in relief for his back and to be free from chemical drips.” Dkt # 68, p. 3. To support this 

response he cites Bertrand’s deposition, where Bertrand answers “correct” to the question “Mr. 

Kirchhoff was allowed to work upstairs on the main floor for a while, right?” He also cites 

Hudson’s deposition where Hudson testified that at some point defendant had put a maintenance 

box and a welding station upstairs to be able to do small repairs and that plaintiff moved up to 

that station in July 2019. Dkt 52-3, p. 9. He also cites his own deposition where he testified that 

Hudson had let him move to the first floor and Bertrand provided the toolbox and welder. Dkt # 

52-4, p. 24. When plaintiff was asked “what were you trying to accomplish by doing that” he 

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responded, “provide relief from going up and down the stairs constantly, for my back pain, for 

staying out of the basement drips.” Id.

While this evidence may show that plaintiff intended his move to the first floor to 

alleviate his back pain (and to avoid chemical drips in the basement), it does not show he ever 

asked for a first-floor workstation as an accommodation for his disability nor does it show 

defendant moved plaintiff to a first-floor workstation as an accommodation for his disability. 

“[A] plaintiff typically must request an accommodation for his disability in order to claim that he 

was improperly denied an accommodation under the ADA.” Preddie, 799 F.3d at 813. The 

record simply does not support plaintiff’s assertion that his workstation was moved to the first 

floor as an accommodation for his disability. 

Likewise, the record does not show that plaintiff asked that his workstation be left on the 

first floor as an accommodation. When Young told plaintiff to move back to the basement, 

according to plaintiff’s response to paragraph 38 of defendant’s statement of facts, plaintiff told 

him “it was unsafe there due to chemicals leaking in the basement.” Dkt # 68, p. 11. While 

plaintiff’s statement of facts paragraph 56 says he proposed to Young places on the first floor 

where his workstation could have been relocated, he does not assert he told Young he was 

seeking an accommodation for his disability. Dkt # 69, p. 9. 

Plaintiff argues he was fired for opposing the recission of his accommodation of a firstfloor workstation without any discussion of alternative accommodations. However, since he has 

failed to present evidence that his move to the first floor was an accommodation for his disability 

or that he asked to keep his workstation on the first floor as an accommodation for his disability, 

he has failed to present evidence his termination was because of his disability. He has presented 

no evidence his termination was in any way related to his disability. 

Plaintiff also claims his termination violated the ADA because it was in retaliation for his 

protected activity. As noted above, defendant argued in its opening brief that because it lacked 

knowledge of plaintiff’s disability, it could not have fired him because of his disability. Dkt # 54, 

p. 11. As discussed above, a reasonable jury could conclude from N.P. Leasure’s Certification 

submitted with plaintiff’s FMLA application that plaintiff was disabled within the meaning of 

the ADA and that defendant was aware plaintiff was disabled based on the information contained 

in the Certification. Therefore, defendant is not entitled to summary judgment on the ADA 

retaliation claim on the basis it lacked knowledge of plaintiff’s disability. Additionally, the ADA 

retaliation provisions protect individuals even if they are not “qualified individuals with a 

disability” under the ADA. Rodrigo v. Carle Foundation Hospital, 879 F.3d 236,243 (7th Cir. 

2018). If plaintiff engaged in protected activity under the ADA, which caused an adverse 

employment action, he would be protected whether he was disabled or not. 

However, plaintiff claims the protected activity he engaged in, which caused his 

termination, was his asking for the accommodation of a first-floor workstation or his objection to 

being required to return his workstation to the basement. As just discussed, he has not presented 

evidence that his termination was caused by a request for, or complaint about a recission of, a 

first-floor workstation as an accommodation for his disability. His retaliation claim is 

foreclosed.

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Illinois Retaliatory Discharge

Plaintiff claims he was fired “because he opposed unsafe working conditions caused by 

persistent chemical leaks into the facility’s basement.” Dkt # 67, p. 6. Plaintiff’s job duties 

included repairing leaks. In the morning of September 23, 2019, the day he was fired, plaintiff 

took a photo of a document he received which indicated something was leaking into the 

basement.3 Later, after Young told him to move his stuff back to the basement, but before he 

was fired, plaintiff told Hudson he intended to file an OSHA complaint over the noon hour 

because he thought the basement was unsafe. Dkt # 69, p. 4, par. 20.4 

Hudson saw Bertrand, Young, and Matt Smazik, defendant’s operations manager, leaving 

the building and told them plaintiff needed to talk to them. Id., par. 21. Hudson denies he told 

Bertrand and Young about plaintiff’s threat to call OSHA. Id. The same morning, around 11:15 

or 11:30, plaintiff told Ed Gamon, defendant’s environmental health and safety manager: “What 

does somebody gotta do around here, call OSHA to keep things safe?” Id., par. 23. Gamon said 

he would pass the comment along to Young. Id., p. 5, par. 24. Young told Bertrand during their 

lunch that plaintiff complained that the basement was unsafe because he was being dripped on 

and that plaintiff believed there to be chemical leaks. Id., par. 25. Plaintiff was fired when 

Young and Bertrand returned from lunch. 

Previously, on August 30, 2019, OSHA issued defendant a formal notice that it had a 

“serious” violation and proposed a $8,525 penalty relating to training employees with respect to 

hazardous chemicals after its workers “were exposed to burns and skin irritation hazards.” Id., 

p.3, par. 12. Shortly thereafter, in September 2019, another employee, Paul Foster, filed an 

OSHA complaint after chromic acid ate through a copper pipe and landed on his forehead in the 

basement about 15 feet from where plaintiff worked. Id., par. 13. Chrome had been leaking in 

Foster’s work area (the lower basement) for approximately two months and he complained 

internally. Id., par. 14. Defendant had been working on getting parts to stop leaks in the chrome 

room for a long time, but it had not been done. Id., par. 15. On September 26, 2019, following 

Foster’s OSHA complaint (and a few days after firing plaintiff), defendant finally got a proposal 

from a contractor to replace all the chrome fume hoods which the contractor determined to be the 

root cause of the leak to the basement. Id., pp. 3-4, par. 16. According to Foster, after the repairs 

were made, the leaks stopped. Id., p. 4, par. 18. 

The Illinois tort of retaliatory discharge “is an exception to the general rule that an ‘atwill’ employment is terminable at any time for any or no cause.” Rehfield v. Diocese of Joliet, 

182 N.E.3d 123, 132 (Ill. 2021) (quotation marks and citation omitted). The exception provides 

that “an employer may not discharge an employee if a clear mandate of public policy is 

3 During his deposition, plaintiff was questioned about a document which included “operator’s name, Paul; 9/23/19; Location 

53” and “Paul’s getting something leaked into the basement from end of 53, maybe coming from exhaust.” It also included a 

picture of a watch showing a time of 7:56. Plaintiff was asked “What am I looking at here?” He responded, “I believe that was to 

document that there was a leak coming into the basement on the day I was terminated” and testified he had taken this photo 

before he had been terminated. See Dkt # 68, p. 12, par. 39 response, citing Dkt # 52-4, p. 30, deposition page 146: 5-13. 

4 Plaintiff cites paragraph 20 of Hudson’s affidavit (Dkt # 69-5) to support this fact. Paragraph 20 of Hudson’s affidavit states: 

“later that morning I observed Mr. Kirchhoff packing his tools from the floor area he was occupying. Mr. Kirchhoff told me that 

he was being required to move back downstairs. I asked Mr. Kirchhoff if he was quitting his job, and Mr. Kirchhoff responded

that he was not, but that he intended to call OSHA over the lunch hour because he felt it was unsafe to work downstairs. He did 

not tell me why he felt working downstairs was unsafe.” Plaintiff also cites Dkt # 52-4, his own deposition, pages 157:5-17. 

However, page 157 of his deposition is not included in Dkt # 52-4. Dkt # 52-4 does not include pages 154-157. 

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involved.” Michael v. Precision Alliance Group, LLC., 21 N.E.3d 1183, 1188 (Ill. 2014). Illinois 

allows retaliatory discharge actions “in two settings: where an employee is discharged for filing, 

or in anticipation of filing, a [workers’ compensation claim] or where an employee is discharged 

in retaliation for reporting of illegal or improper conduct, otherwise known as ‘whistleblowing’.” 

Id. To win a retaliatory discharge case, a plaintiff must prove he was (1) discharged (2) in 

retaliation for his activities and that (3) the discharge violates a clear mandate of public policy. 

Id. “The requirement that the discharge be in retaliation for plaintiff’s activities requires that a 

plaintiff establish a causal relationship between the employee’s activities and the discharge.” Id. 

An employer is not required to give a reason for the discharge but may choose to offer a reason if 

it desires. Id. at 1189. If the employer offers “a valid, nonpretextual basis for discharging its 

employees and the trier of fact believes it, the causation element required to be proven is not 

met.” Id. (quotation marks and citation omitted). Plaintiff bears the burden to prove each element 

of the claim. Id. 

“To survive a motion for summary judgment on an Illinois retaliatory discharge claim, a 

plaintiff must have offered sufficient evidence for a jury to find that (1) the employer discharged 

the employee (2) in retaliation for the employee’s protected activities, and (3) that the discharge 

was in contravention of a clearly mandated public policy.” Reid v. Neighborhood Assistance 

Corp. of America, 749 F.3d 581, 586 (7th Cir. 2014). “Retaliation claims under Illinois law differ 

from federal retaliation claims under the McDonnell Douglas framework, where a plaintiff can 

present a prima facie case and shift the burden to the defendant to provide a legitimate reason for 

a termination. Instead, Illinois law requires the plaintiff to offer affirmative evidence of 

causation to survive summary judgment.” Id. at 587. This evidence will typically be 

circumstantial. Id. The court looks at the record as a whole to see whether a jury could 

reasonably infer that defendant’s motive for firing plaintiff was in retaliation for plaintiff’s 

protected activity. Id. The ultimate issue in deciding the element of causation in an Illinois 

retaliatory discharge case is the employer’s motive in discharging the employee. Hubert v. Board 

of Education of City of Chicago, 169 N.E.3d 831, 836 (Ill. App. 2020). 

In its opening brief, defendant focuses on plaintiff’s statements to Hudson and Gamon 

about complaining to OSHA as plaintiff’s asserted protected activity. Defendant argues plaintiff 

has not presented evidence that he was discharged for his statements about making an OSHA 

complaint, because at the time Bertrand fired plaintiff, neither Bertrand nor Young was aware 

plaintiff had made these statements to Hudson and Gamon. Plaintiff had not previously raised 

safety concerns about the leaks and did not mention his intention to raise safety concerns with 

OSHA during the meeting in which he was fired. 

Plaintiff argues that it can reasonably be inferred that Bertrand and Young knew plaintiff 

threatened to call OSHA because Hudson spoke to Bertrand and Young after plaintiff had made 

the threat to Hudson and before the lunch where Bertrand decided to fire plaintiff. While 

Hudson testified that he did not tell Bertrand and Young about plaintiff’s threat, plaintiff argues 

“a jury could find otherwise given the highly suspicious circumstances of Plaintiff’s 

termination.” Dkt # 67, p.16. 

When Young told plaintiff to move to the basement, Plaintiff said it was leaking 

chemicals in the basement and he was not going to move down there. Shortly thereafter, plaintiff 

told Hudson he intended to file an OSHA complaint over the noon hour. Hudson then spoke 

with Young and Bertrand telling them plaintiff needed to talk to them but denies telling them 

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plaintiff said he intended to file an OSHA complaint. Also, around the same time, plaintiff 

commented to Gamon, “[w]hat does somebody gotta do around here, call OSHA to keep things 

safe.” Gamon said he would pass along plaintiff’s comment to Young, but there is no evidence 

he did so prior to plaintiff’s firing. Plaintiff did not recall whether Bertrand or Young mentioned 

his threats to call OSHA during the meeting in which he was terminated. Dkt # 68, p. 18, par. 64 

response. Young and Bertrand both stated they were unaware of plaintiff’s threats to complain to 

OSHA. Dkt # 52, p. 12, par. 65. 

Plaintiff has no direct evidence that Bertrand or Young knew of his OSHA threats at the 

time plaintiff was fired. He relies on the fact Hudson spoke with Young and Bertrand after he 

made the threat to Hudson as circumstantial evidence from which a jury could conclude, 

considering that his termination followed shortly thereafter, that Hudson told them of the threat, 

even though Hudson denies doing so. This evidence is too speculative to support a finding that 

Bertrand and Young knew plaintiff had threatened to call OSHA shortly before he was fired. 

Plaintiff also argues that he was unlawfully fired even if Young and Bertrand did not 

know about his OSHA threat when Bertrand fired him because they knew he had raised unsafe 

working conditions shortly before he was fired. Illinois allows retaliatory discharge claims based 

on discharges arising from raising unsafe working conditions with the employer. Sherman v. 

Kraft General Foods, Inc., 651 N.E.2d 708, 713 (Ill. App. 1995) (holding retaliatory discharge 

claim was stated where employee made occupational safety hazard complaint to employer not 

OSHA), citing, 29 C.F.R. § 1977.9(c) (“salutary principles of the Act would be seriously 

undermined if employees were discouraged from lodging complaints about occupational safety 

and health matters with their employers”; good faith complaints made to employers “therefore 

would be related to the Act, and an employee would be protected against discharge or 

discrimination caused by a complaint to the employer.”) 

It is undisputed that Young told Bertrand, during lunch, that plaintiff complained that the 

basement was unsafe because he was being dripped on by what he believed were chemical leaks 

and that Young and plaintiff had gone to the basement where plaintiff pointed out leaks. Young 

did not believe these leaks were active, recommended plaintiff be fired, and Bertrand fired him. 

Less than a month earlier, on August 30, 2019, OSHA had issued defendant a formal 

notice that it had a “serious” violation related to training employees with respect to hazardous 

chemicals and proposed a $8,525 penalty. Shortly after this OSHA notice, Foster had filed an 

OSHA complaint after chromic acid ate through a copper pipe and landed on Foster’s forehead 

in the basement about 15 feet from where plaintiff worked. Chrome had been leaking into 

Foster’s work area for approximately two months and he had complained internally. 

Thus, at the time Bertrand fired plaintiff, he was aware that plaintiff had said he was not 

going to relocate to the basement because it was leaking chemicals down there, that defendant 

had recently been issued a violation notice by OSHA for training issues with respect to 

hazardous chemicals, and that Foster had filed an OSHA complaint. Plaintiff contends a jury 

could believe from these facts that defendant wanted to quickly get rid of plaintiff before he filed 

an OSHA complaint because plaintiff’s complaint would corroborate Foster’s OSHA complaint. 

Defendant refutes this argument contending it fired plaintiff for insubordination and his 

bad attitude. His insubordination was telling Young “[t]hat ain’t going to happen”, “it’s leaking 

chemicals down there” and that he was not going to go there, in response to Young telling 

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plaintiff he had to move his stuff back to the basement. Dkt # 52, P.8, par. 38. Plaintiff stated he 

was not going to obey Young’s direct order. This is a valid ground for termination. 

The court’s role on a summary judgment motion “is not to evaluate the quality of the 

evidence or argument, but rather to evaluate whether any evidence exists from which a fact 

finder could conclude that the party proved the elements of the cause of action.” Hubert, 169 

N.E.3d at 837. In Hubert, the court was faced with evidence of insubordination and 

inappropriate and unprofessional conduct by the terminated employee as well as evidence the 

employee was acting to investigate seemingly improper behavior by vendors of his employer, the 

Chicago public schools. The record in Hubert contained evidence that could support either a 

finding by the jury that Hubert was fired for insubordination or that he was fired for his protected 

activity. The court therefore held summary judgment was inappropriate. 

The court here is faced with a similar record. A jury could conclude from the evidence 

that plaintiff was fired because he complained about the unsafe condition of the basement leaks. 

There is evidence that there were leaks (the one Foster complained about and the leak in the 

basement reported the morning of the day plaintiff was terminated). Plaintiff was fired shortly 

after telling Young that it was leaking chemicals in the basement. The existence of the OSHA 

violation notice, and the pendency of Foster’s OSHA complaint, could be viewed as providing an 

incentive to try to avoid another OSHA investigation by getting rid of plaintiff. 

On the other hand, a jury could simply conclude plaintiff was fired because he said he 

was not going to obey his superior’s order to relocate his workstation. This is a decision the jury 

must make. The court cannot evaluate the evidence and decide which motive defendant had 

when it fired plaintiff. Defendant’s motion for summary judgment on the Illinois retaliatory 

discharge claim must be denied.

For the foregoing reasons, defendant’s motion for summary judgment is granted as to 

plaintiff’s claims under the ADA, granted as to the claim under the FMLA that plaintiff was 

discouraged from using the FMLA leave he had been granted, denied as to his claim under the 

FMLA that he was fired for using FMLA leave and denied as to the Illinois retaliatory discharge 

claim. The parties are directed to contact Magistrate Judge Schneider within 28 days to consider 

settlement possibilities.

Date: 1/11/2023 ENTER:

 

 __________________________________ 

 United States District Court Judge

 Electronic Notices.

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