Keen v. Teva Sales & Mktg., Inc.
Opinion
Chief Judge Rubén Castillo, United States District Court
Janice Keen ("Plaintiff") brings this 37-count employment discrimination lawsuit alleging that Teva Sales and Marketing, Inc. and Teva Pharmaceuticals USA, Inc. (collectively, "Teva" or "Defendants") discriminated and retaliated against her because of her disability and gender in violation of the Americans with Disabilities Act ("ADA"),
RELEVANT FACTS3
*698This suit implicates facts and numerous discrete incidents that occurred over several years during Plaintiff's employment. The Court, therefore, only summarizes those facts that are material to Plaintiff's claims. The following facts are undisputed unless otherwise stated.
I. The Parties and Plaintiff's Supervisors
Defendants are Delaware corporations and pharmaceutical companies. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' Statement of Material Facts [hereinafter "SOMF"] ¶ 1; 16-cv-9964, R. 28, Answer to Am. Compl. at 2.) In June 2005, Keen was hired as a sales specialist by Cephalon, a pharmaceutical company later acquired by Teva. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 3.) As a sales specialist, she was responsible for selling pharmaceuticals in the Chicago area. (Id. ) The physical requirements of her job included daily driving, getting in and out of her car, carrying promotional materials, climbing and descending stairs, and walking to and from physicians' offices. (16-cv-9964, R. 28, Answer to Am. Compl. at 3.)
Prior to Teva's acquisition of Cephalon in October 2011, Plaintiff reported to Katherine Stanek. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 3.) Shortly after the acquisition, Plaintiff began reporting to Scott Bischoff, Teva's Chicago regional sales manager. (Id. ¶ 4.) Sometime in 2013, Mike Rothweiler replaced Bischoff as the regional sales manager, and Plaintiff then began reporting to him. (Id. ) Stanek, Bischoff, and Rothweiler all reported to Matthew Muller, who was a director of sales at Cephalon and later the director of sales for Teva's "central nervous division" following Teva's acquisition of Cephalon. (Id. ¶ 5.)
II. Plaintiff's Leaves of Absence in 2010-2012
In November 2010, Plaintiff was involved in an automobile accident while she was working and injured her neck and shoulder as a result. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 34, 37.) After the accident, she took a leave of absence for approximately five months and returned to work either "at the end of April or early May" in 2011. (Id. at 40-41.) Shortly after the accident, Plaintiff filed a claim with the Illinois Workers' Compensation Commission ("IWCC") related to the accident. (16-cv-9964, R. 41-2 at 86, Workers' Comp. Claims.) In November 2011, Plaintiff underwent surgery to repair a torn rotator cuff, and she took a one month leave of absence following her surgery. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 11.)
The following year, Plaintiff underwent spinal surgery to repair injuries she suffered in the November 2010 car accident and took another leave of absence. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 51-53.) Her leave began in June 2012 and lasted for twelve weeks, at which time Plaintiff exhausted her leave under the Family and Medical Leave Act ("FMLA"),
III. Plaintiff's Leave and Return to Work in 20134
While Plaintiff was still on leave, Plaintiff's physician, Dr. Gary Shapiro, wrote a letter to Defendants on May 8, 2013, informing them that Plaintiff was scheduled for another spinal surgery on May 17, 2013, and that she was to refrain from work until the surgery. (Id. , R. 81-12 at 16, May 8, 2013, Shapiro Letter.) Dr. Shapiro also informed Defendants that Plaintiff would need two to six weeks to recover. (Id. ) Plaintiff's surgery, however, was cancelled. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 9.) Soon after, on May 23, 2013, Bobrowski wrote a letter to Plaintiff, which stated:
As you know, you have been out of the workplace and field since December 21, 2012. In addition, this time has not been approved under Teva's Family Medical Leave Policy and Teva's Short Term/Long Term disability plans. Thus, your time is currently categorized as personal, unpaid, non-FML leave. Also, since that time, Teva has provided you with full benefits and use of a company car.
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Chief Judge Rubén Castillo, United States District Court
Janice Keen ("Plaintiff") brings this 37-count employment discrimination lawsuit alleging that Teva Sales and Marketing, Inc. and Teva Pharmaceuticals USA, Inc. (collectively, "Teva" or "Defendants") discriminated and retaliated against her because of her disability and gender in violation of the Americans with Disabilities Act ("ADA"),
RELEVANT FACTS3
*698This suit implicates facts and numerous discrete incidents that occurred over several years during Plaintiff's employment. The Court, therefore, only summarizes those facts that are material to Plaintiff's claims. The following facts are undisputed unless otherwise stated.
I. The Parties and Plaintiff's Supervisors
Defendants are Delaware corporations and pharmaceutical companies. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' Statement of Material Facts [hereinafter "SOMF"] ¶ 1; 16-cv-9964, R. 28, Answer to Am. Compl. at 2.) In June 2005, Keen was hired as a sales specialist by Cephalon, a pharmaceutical company later acquired by Teva. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 3.) As a sales specialist, she was responsible for selling pharmaceuticals in the Chicago area. (Id. ) The physical requirements of her job included daily driving, getting in and out of her car, carrying promotional materials, climbing and descending stairs, and walking to and from physicians' offices. (16-cv-9964, R. 28, Answer to Am. Compl. at 3.)
Prior to Teva's acquisition of Cephalon in October 2011, Plaintiff reported to Katherine Stanek. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 3.) Shortly after the acquisition, Plaintiff began reporting to Scott Bischoff, Teva's Chicago regional sales manager. (Id. ¶ 4.) Sometime in 2013, Mike Rothweiler replaced Bischoff as the regional sales manager, and Plaintiff then began reporting to him. (Id. ) Stanek, Bischoff, and Rothweiler all reported to Matthew Muller, who was a director of sales at Cephalon and later the director of sales for Teva's "central nervous division" following Teva's acquisition of Cephalon. (Id. ¶ 5.)
II. Plaintiff's Leaves of Absence in 2010-2012
In November 2010, Plaintiff was involved in an automobile accident while she was working and injured her neck and shoulder as a result. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 34, 37.) After the accident, she took a leave of absence for approximately five months and returned to work either "at the end of April or early May" in 2011. (Id. at 40-41.) Shortly after the accident, Plaintiff filed a claim with the Illinois Workers' Compensation Commission ("IWCC") related to the accident. (16-cv-9964, R. 41-2 at 86, Workers' Comp. Claims.) In November 2011, Plaintiff underwent surgery to repair a torn rotator cuff, and she took a one month leave of absence following her surgery. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 11.)
The following year, Plaintiff underwent spinal surgery to repair injuries she suffered in the November 2010 car accident and took another leave of absence. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 51-53.) Her leave began in June 2012 and lasted for twelve weeks, at which time Plaintiff exhausted her leave under the Family and Medical Leave Act ("FMLA"),
III. Plaintiff's Leave and Return to Work in 20134
While Plaintiff was still on leave, Plaintiff's physician, Dr. Gary Shapiro, wrote a letter to Defendants on May 8, 2013, informing them that Plaintiff was scheduled for another spinal surgery on May 17, 2013, and that she was to refrain from work until the surgery. (Id. , R. 81-12 at 16, May 8, 2013, Shapiro Letter.) Dr. Shapiro also informed Defendants that Plaintiff would need two to six weeks to recover. (Id. ) Plaintiff's surgery, however, was cancelled. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 9.) Soon after, on May 23, 2013, Bobrowski wrote a letter to Plaintiff, which stated:
As you know, you have been out of the workplace and field since December 21, 2012. In addition, this time has not been approved under Teva's Family Medical Leave Policy and Teva's Short Term/Long Term disability plans. Thus, your time is currently categorized as personal, unpaid, non-FML leave. Also, since that time, Teva has provided you with full benefits and use of a company car.
For approximately five (5) months, the Company has accommodated your requested leave and kept your position vacant pending your return. We ask that you notify us no later than May 31, 2013 as to your work status. Please have your physician review your job description and complete the Physical Capabilities Checklist (attached), confirming if you are fit for duty and identifying any restrictions or accommodations necessary and, indicating if/when you will be able to return to work....
If you are unable to return to work on or around June 3, 2013, and perform the essential function of your job, with or without accommodation, you will be administratively laid off from your employment. However, if you are laid off, you are invited to contact us when you are able to return to work to discuss any available positions for which you may be qualified[.]
(Id. , R. 81-12 at 18, May 23, 2013, Bobrowski Letter.)
In response, on May 29, 2013, Plaintiff faxed a letter to Teva's nurse care manager, Donna Montagna, representing that her physician had released her to return to work on June 3, 2013. (Id. , R. 81-12 at 20, May 29, 2013, Keen Letter.) Attached to the fax was the Physical Capabilities Checklist (the "Checklist") that Teva had enclosed with Bobrowski's May 23 letter, which was completed and signed by Dr. Shapiro. (Id. ) The Checklist detailed Plaintiff's physical capabilities and limitations, indicating that she could: (1) lift, carry, push, and pull up to 10 pounds; (2) sit continuously; (3) stand, walk, and drive frequently; and (4) bend, squat, reach above her shoulder, and kneel occasionally. (Id. )
*700Despite Plaintiff's letter enclosing the Checklist, Montagna instructed Plaintiff to not return to work on June 3, 2013. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 10.) Montagna told Plaintiff that she was not cleared to return to work because "someone in HR thinks you need surgery." (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 74.) Specifically, Plaintiff understood that someone in Teva's human resources department told Montagna that Plaintiff could not return to work until she underwent the surgery that was previously scheduled for May 17, 2013, but had been cancelled. (Id. at 74-76.) Shortly thereafter, on June 5, Plaintiff called Defendants' compliance hotline and claimed that Defendants discriminated against her on the basis of her disability. (16-cv-9964, R. 28, Answer to Am. Compl. at 5.)
Defendants denied Plaintiff's return in early June because they had reviewed the Checklist and concluded that there was a lack of clarity and agreement as to Plaintiff's work-related restrictions and necessary accommodations. (14-cv-9626, R. 86-8, Bobrowski Oct. 19 Dep. Tr. at 103-09.) Plaintiff's surgery that was originally scheduled for May 17, 2013, but later cancelled, eventually took place in July 2013. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 10.) Following the surgery, on August 22, 2013, Plaintiff faxed another Checklist to Teva. (See
On August 27, 2013, Plaintiff completed that examination. (Id. at 78-79, 85.) Following this examination, Montagna called Plaintiff and told her that there was "a problem" with the results and therefore she requested that Plaintiff undergo a second examination. (Id. at 86-87.) Specifically, Plaintiff was informed that she had to undergo a second test because the first test found that her neck was normal, but Defendants believed that the test failed to indicate that she had a "scar or something to that effect" on her neck. (Id. ) In response, Plaintiff refused to complete a second examination and, shortly thereafter, Plaintiff's then-counsel requested information from Teva as to why a second examination was necessary. (Id. at 86-88.) Even though Plaintiff did not retake the examination, on September 11, 2013, Montagna called Plaintiff and informed her that she could return to work the following day. (Id. at 88.) Plaintiff returned to work on September 12, 2013, and her only work restriction was that she could not lift more than twenty pounds. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 11;
IV. Plaintiff's Request to Attend a Training Workshop
In early 2014, Plaintiff signed up for a training workshop in Pennsylvania scheduled for February 2014. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 55-56.) Plaintiff, however, was not approved to attend this workshop because Defendants wanted their sales representatives to focus on having a strong start to their year, and Defendants recommended that Plaintiff wait until later in the year to attend a workshop. (Id. at 56-57.) Another woman on Plaintiff's team, Jonnie Blake, was not approved to go to the workshop either, but Plaintiff knew of three men who were approved. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 57-58.) The same number of men and women from Teva, however, attended the Pennsylvania workshop. (Id. , R. 81-6, Bobrowski Aff. ¶ 8.)
V. The Senior Executive Sales Specialist Position
While Plaintiff was on leave in 2013 she was notified that her job title had changed *701from "Territory Sales Specialist" to "Executive Sales Specialist." (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 89-90.) While at Cephalon, Plaintiff's job title was Territory Sales Specialist, and all sales representatives at Cephalon had that same title. (Id. at 89.) After Teva acquired Cephalon, Teva undertook a project to rename Cephalon's job titles to those more consistent with job titles used at Teva. (Id. , R. 86-9, Bobrowski Jan. 28 Dep. Tr. at 14-15.) This process involved a review of each sales representative's experience and performance over time to decide how each sales representative's job title would be renamed. (Id. at 14-20.) Plaintiff believes that although she met the qualifications for a "Senior Executive Sales Specialist" ("SESS"), she was instead designated as an Executive Sales Specialist. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 90-91.)
As part of its process to re-categorize each sales representative, Teva established a committee (the "Committee") that included, among other directors of Teva's sales divisions, Muller, director of the sales division for which plaintiff worked. (Id. , R. 86-10, Muller Dep. Tr. at 58.) Sales directors, like Muller, would have a discussion with lower-level managers to determine the recommended job title for each employee within that sales director's division. (Id. at 58-59.) Sales directors would then present those recommendations to the Committee for its review. (Id. at 59.) The Committee then considered each employee's sales performance and other factors, and attempted to evaluate each employee in a uniform manner. (Id. at 60-63.) Afterwards, Teva's sales directors voted to approve each employee's job title. (Id. at 61.)
Within Muller's division, Muller reviewed an evaluation generated by each employee's immediate supervisor that described the employee's characteristics outside of his or her sales performance, such as the employee's leadership and mentorship qualities. (Id. at 64.) In Plaintiff's case, her direct supervisor, Bischoff, completed her evaluation that Muller reviewed in order to determine-together with the other sales directors-her job title. (Id. at 64-65.)
The Committee could assign one of five positions to each sales representative: (1) Sales Specialist, (2) Professional Sales Specialist, (3) Senior Sales Specialist, (4) Executive Sales Specialist, and (5) SESS. (Id. , R. 81-12 at 11-14, Promotional Guidelines.) The qualifications for SESS were:
1. a rating of "meets" or better for two of the last three years, which is a rating indicating that the employee met his or her responsibilities in a given year;
2. a rating of "exceeds" or better for at least one of the last two years, which is a rating indicating that the employee "exceeded" his or her responsibilities in a given year;
3. finishing within the top 30% of Teva's sales representatives in one of the last three years and within the top 50% of Teva's sales representatives in the other two years;
4. working a minimum of three years as a Teva Executive Sales Specialist;
5. more than eleven years5 of experience working in pharmaceutical sales; and *7026. being a "leader," "mentor," and "role model."
(Id. , R. 81-12 at 11-14, Promotional Guidelines.)
Plaintiff met the objective qualifications for the SESS position such as sales numbers and years of experience. (See
Multiple Teva employees testified that Plaintiff did not receive the SESS position because she was not considered a role model or leader. For example, Plaintiff's supervisor prior to 2011, Stanek, testified that Plaintiff "always did well on the sales performance," but it was "well-documented" that "she was not executing against behaviors that the company held as standards." (Id. , R. 86-16, Stanek Dep. Tr. at 29-30.) During the employee reclassification process, Muller asked Bischoff about examples of Plaintiff being a leader, mentor, or role model, and Bischoff "did not have any examples to speak to." (Id. , R. 86-12, Bischoff Dep. Tr. at 23.) Instead, Bischoff spoke to Plaintiff's "lack of leadership, her lack of mentorship, her lack of initiative, her lack of role modeling, lack of collaboration, and her lack of followership." (Id. ) Bischoff also gave Muller examples to support his observations about Plaintiff. (Id. at 23-24.)
While largely positive, some of Plaintiff's written reviews included similar criticisms. Plaintiff's 2010 Cephalon review lauded her for her sales numbers, clinical and product knowledge, customer knowledge, and stated that Plaintiff's "leadership and ability to adapt to a changed environment is appreciated by her manager." (Id. , R. 86-16 at 53-56, 2010 Performance Summ.) The review, however, also stated that Plaintiff did not meet expectations regarding targeting customers with the greatest sales potential and that her "failure to show improvement planning and organizing over the past 9 month[s] speaks to an unwillingness to adopt and implement change when she does not agree with corporate goals and strategies." (Id. at 55.)
Plaintiff's 2011 Abbreviated Performance Summary was almost entirely positive, noting that she was on pace to exceed her sales quota, she had earned a "President's Club rank," and her knowledge of the product was "superior." (Id. , R. 86-16 at 57-58, Abbreviated Performance Summ.) The review did note that she was on a medical leave for some of 2011, but "[w]hile in territory she did not meet expressed call expectations." (Id. ) Specifically, it stated that Plaintiff "was consistently behind the Nation, Region and team call averages throughout each evaluation period." (Id. ) Despite this critique, the summary concluded that Plaintiff was "consistently a top performer[ ] in the organization[.]" (Id. )
On October 31, 2013, Plaintiff met with Muller and Rothweiler to discuss her 2012 performance review and the reasons why she was not selected for the SESS position. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 35.) The results of Plaintiff's 2012 Mid-Year Performance Review-which was completed by Rothweiler's predecessor, Bischoff-were distinctly lower than prior years. (Id. , R. 81-7 at 60-65, 2012 Mid-Year Performance Review.) The review had performance categories of: "Below," "Mostly Meets," "Meets," "Exceeds," and "Exceptional." (Id. ) Plaintiff did not receive any "Exceeds" or "Exceptional" in any individual category and her overall *703evaluation was "Mostly Meets." (Id. at 60-64.) In a section assessing Plaintiff's "Strengths and Needs," Bischoff did not list any "Strengths." (Id. at 64.) As to Plaintiff's "Needs," Bischoff wrote that Plaintiff: "needs to improve her time and territory management" because "her calls per day are among the lowest in the area;" "should increase her overall activity in line with area and regional averages;" "should be more proactive in completing administrative requirements" including "expense reports;" and "could benefit from increased resource utilization." (Id. )
At the meeting with Muller and Rothweiler on October 31, 2013, Muller informed Plaintiff that although she met all of the objective criteria to qualify for the SESS position, she was not sufficiently a leader, mentor, or role model to merit the SESS position. (Id. at 109;
Plaintiff asserts that the actual reason behind Teva's decision not to promote her to the SESS position was because of her disability and gender. To support these allegations, Plaintiff points to a number of facts. Plaintiff testified that Muller told her that she had not actively participated in meetings and that she had missed meetings. (Id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 109, 115.) Plaintiff also notes that on November 14, 2012, she emailed Bischoff about her performance reviews, stating that her "challenge" at work "is obvious with [her] medical leave and ... need for accommodations[.]" (Id. , R. 86-12 at 16, Bischoff Nov. 14, 2012, Email.) In response, Bischoff wrote:
Your medical limitations and leave of absence have had a significant impact on your ability to perform this year at a high level but that shouldn't detract you from returning to President's club in 2013! I think next year you will be in a much better position to succeed while documenting competencies along the way. I am confident you will return to a top performing sales executive.
(Id. )
Plaintiff also claims that there were "many men, with no disability, without the qualifications" that were promoted to the SESS position. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF at 10.) In support, Plaintiff identifies six men who "did not have all [of] the required qualifications ... but were nonetheless promoted to the position, without any interview." (Id. ¶ 24.) No individual directly reporting to Bischoff, however, "was qualified for the SESS position." (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 34.)
VI. Plaintiff's 2013 Bonus and Salary
Plaintiff's 2013 bonus payments were approximately $12,000 less than what she was expecting. (Id. , R. 86-7, Keen May 24 Aff. ¶¶ 7-9.) Plaintiff asked Rothweiler why her bonus had been reduced in 2013, and Rothweiler told her that the bonus was reduced because she was out of her territory for most of the year. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 10-11.) Plaintiff, however, also testified that her bonus was reduced because Teva prohibited her from returning to work in June 2013 and did not allow her to return until September 2013. (Id. at 11.)
Bonuses at Teva are calculated "based on performance measured by sales of the representative's territory" and are paid every three months. (Id. , R. 89, Defs.' Resp.
*704to Pl.'s SOAMF ¶ 29.) Teva's 2013 Annual Incentive Plan states in relevant part, "[l]eaves of absence will impact incentive eligibility in proportion to the length of the leave, with the exception of an approved leave that qualifies under FMLA, the Parental Leave Policy and/or the Military Leave Policy." (Id. , R. 81-6 at 10, Annual Incentive Plan.)
VII. Plaintiff's Leave in 2014 and Performance Following Her Return to Work
In January 2014, Plaintiff reinjured her shoulder while attempting to refill her car's windshield wiper fluid. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 12-17.) Following her injury, Plaintiff continued to work from January 29, 2014, until March 12, 2014. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 44.) Plaintiff filed a workers' compensation claim with the IWCC for this injury. (16-cv-9964, R. 41-2 at 85, Workers' Comp. Claims.) Plaintiff did not go on medical leave immediately following the injury because she "had not yet qualified for family medical leave," and "needed job-protected leave[.]" (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 44.) Plaintiff eventually went on FMLA leave, and while on leave, Plaintiff had another surgery on her spine in March 2014 and a surgery to repair her rotator cuff on May 15, 2014. (Id. ¶¶ 45-46.) On June 2, 2014-the day before Plaintiff's FMLA leave was set to expire-Plaintiff sent an email requesting two additional months of leave as an ADA accommodation. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 23-27.) Defendants agreed to the extension, and Plaintiff returned to work on August 7, 2014. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶¶ 46-47; see also
Upon Plaintiff's return to work in August 2014, Rothweiler remained Plaintiff's supervisor, (id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 23), and the two met to discuss her performance expectations for the rest of the year, (id. , R. 81-14, Rothweiler Aff. ¶ 2). As part of these expectations, Plaintiff was provided a "call list," which "assigned a certain number of [sales] calls over the course of the year[.]" (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 48.) Included in this call list were physicians in Plaintiff's Indiana territory that were identified as "high decile prescribes," or those doctors that could be encouraged to prescribe more Teva products. (Id. ) Plaintiff claims that the list that Rothweiler created for her was misguided because many of the targets were "retired" or not in her territory, and the suggested call volume did not account for the time she was on medical leave. (Id. at 49; see also
In November 2014, Rothweiler accompanied Plaintiff on a two-day field visit. (Id. , R. 81-14, Rothweiler Aff. ¶¶ 3-4.) Per Teva's practices, Rothweiler prepared a field coaching report ("FCR") following the field visit. (Id. ¶ 4.) The FCR provided both positive and negative comments regarding Plaintiff's "business acumen." (Id. , *705R. 81-14 at 6, FCR.) For example, the review stated that Plaintiff engaged in "good discussion" with physicians and "did a nice job of gaining commitment with ... physicians to prescribe our products," (Id. at 8.) The FCR, however, discussed the fact that Plaintiff did not make sales calls to Indiana, stating that "[o]verall 30% of [Plaintiff's] business comes from Indiana, however only 2% of [her] time has been spent there." (Id. at 6.) The FCR also concluded that Plaintiff did not exercise a "sound strategy" for sales, and was making very few sales calls in the morning hours. (Id. at 6, 10.)
Plaintiff's morning absences were due to physical therapy appointments she attended once or twice a week, regular doctor's appointments, and a daily "morning exercise program." (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶¶ 50-51.) These obligations caused Plaintiff to delay the start of her work day or caused her to miss one to two mornings of work every week. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 34, 37.) She testified, however, that Rothweiler approved these accommodations. (Id. )
VIII. The 2014 "Make It Happen" Sales Contest
While Plaintiff was on leave in 2014, a sales contest took place at Teva that it branded as the "Make It Happen" sales contest. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 73.) Initially, Plaintiff was listed as not being eligible to participate in the contest. (Id. ) Jeffery Schurr, a senior manager of incentive compensation at Teva, categorized Plaintiff as ineligible because he was informed by Bobrowski that Plaintiff was "on a leave that was bonus ineligible." (Id. , R. 86-15, Schurr Dep. Tr. at 18.) On June 25, 2014, after seeing an email listing her as ineligible to participate, Plaintiff emailed Rothweiler to explain that she was in fact eligible to participate in the contest. (Id. , R. 81-11 at 70, Keen June 25, 2014, Email.) Five days later, on June 30, 2014, Rothweiler notified Plaintiff that she was eligible to participate in the contest and would be receiving credit for it. (Id. , R. 81-11 at 70, Rothweiler June 30, 2014, Email.)
Plaintiff testified that in the days following the error and before Teva corrected the error, she suffered "great humiliation and embarrassment from the incorrect results from the contest and received calls from many colleagues asking what was wrong with her or if she was on a performance improvement plan." (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 72-76, 82-83.) Even though Plaintiff was informed that she was in fact eligible to participate in the contest, Teva did not correct the "humiliating e-mail that was sent out by the vice president" announcing that Plaintiff was ineligible, (Id. at 73.) Plaintiff, however, did participate in the contest and was paid as one of the winners of the contest. (Id. at 76.)
IX. Plaintiff's Request for a Sales Territory Accommodation
After her return in August 2014, Plaintiff made repeated requests to her supervisors and Teva's human resources department to modify her sales territory. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 55.) In November 2014, Plaintiff requested that Defendants accommodate her medical condition by removing Indiana from her territory. (Id. ¶¶ 54-55; see also
In December 2014 and January 2015, Plaintiff renewed her territory modification request. (Id. , R. 81-9 at 10-11, Keen Dec. 15, 2014, Email; see also
Plaintiff was instructed to speak with Elaine McGee regarding her territory modification request who, in turn, directed Plaintiff to contact Work Care, an occupational health management company that Teva contracted with to handle "return to work and/or reasonable accommodation issues for Teva employees." (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 135-36.) Plaintiff had prior confrontational experiences with a Work Care account manager, and Dr. Peter Greaney, Work Care's founder and chief executive officer, was advised that Plaintiff was "quite argumentative" and "had initially refused to sign" Work Care's standard Health Insurance Portability and Accountability Act ("HIPAA") release form. (Id. , R. 81-15, Greaney Aff. ¶¶ 1, 4.) Specifically, Plaintiff: had "blacked out" portions of Work Care's standard HIPAA form that it used to obtain an employee's medical information; was not willing to release medical information; and took issue with the fact that Work Care would need to talk to her health care providers. (Id. ¶ 4.) The "matter was escalated" to Dr. Greaney, who called Plaintiff in April 2015 to seek more clarity on her requests for accommodations. (Id. ¶ 5.) Plaintiff was "rude, loud, and argumentative during the course of the call," and also told him "that a clinical clarification was not required." (Id. ; see also
While Plaintiff had conversations with at least two of her doctors regarding changing her sales territory to accommodate her medical condition, (id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 129, 132), there is no evidence that any of Plaintiff's doctors, as opposed to Plaintiff herself, directly communicated with anyone at Teva or Work Care regarding this accommodation. (See
*707X. Plaintiff's 2014 Performance Review and Subsequent Rebuttal
Plaintiff received her 2014 performance review in February 2015. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 63.) The ratings categories were "Below," "Mostly Meets," "Meets," "Exceeds," and "Exceptional." (Id. ) Plaintiff's overall evaluation was "Mostly Meets," and her overall sales ranking was 233 out of 254. (Id. , R. 81-11 at 76-79, Performance Mgmt. Full Report.) Her manager's comments in the report, who was Rothweiler, included the following:
• "[Plaintiff] did not provide ... any developmental goals in 2014."
• While Plaintiff requested to attend a "selling skills class" in the first quarter of 2014 and that request was denied, Plaintiff "did not request another class upon her return to the field in August."
• "[S]he will need to take a more proactive approach ... to administrative tasks, resource utilization, and communications around business issues in her territory."
• "[Plaintiff] has not demonstrated a leadership role on the team in 2014."
• "[Plaintiff] has not been able to adequately meet an appropriate level of call activity on the customers that have the greatest impact on her business."
• "[Plaintiff] did not submit any expense reports for 2014 until December."
• Plaintiff "did not spend time in the Indiana portion of her territory ... that accounts for approximately 30% of her Nuvigil business."
• "She did not follow her call plan to effectively reach the most valued customers[.]"
(Id. at 77-79.) Plaintiff disagreed with the majority of these remarks as "fundamentally flawed" and responded with a document titled "2014 Keen Performance Review Rebuttal." (Id. at 80; see also
In her rebuttal, Plaintiff described the comments in her 2014 performance review as "false and misleading[.]" (Id. , R. 86-6 at 52, Keen Rebuttal.) She blamed her negative reviews on Teva's failure to follow company policy in their handling of her leave in 2014. (Id. )
The rebuttal further complained that Rothweiler mistakenly included a particular doctor in her sales quota calculations that adversely affected her sales numbers. (Id. at 53.) Her rebuttal also claimed that her failure to provide Rothweiler with developmental goals in 2014 was because she was on medical leave at the time these goals were developed with management. (Id. ) Plaintiff acknowledged that she did not attend the "setting skills class" in the first quarter of 2014 because Rothweiler made her cancel her attendance at that class and told her that she could attend another class later in the year. (Id. ) She also claims that Rothweiler did not invite her to a class later on in the year and that he was nonresponsive when she asked him for class recommendations. (Id. at 54.) As to her lack of collaboration with other employees, Plaintiff stated in her rebuttal that her leave from work impacted her ability to collaborate. (Id. )
With respect to Rothweiler's criticism of Plaintiff's approach towards administrative tasks, "resource utilization," and communicating about business issues, Plaintiff's rebuttal attributed her lackluster performance in these areas to Rothweiler's failure to respond to her concerns about: her inability to access Teva's website and computer applications; issues contacting her managers; problems accessing medical care for work-related injuries; issues related to her corporate credit card; management's expectations *708of Plaintiff given her medical leave; and pending requests for accommodations that might have improved Plaintiff's performance. (Id. at 55.) Plaintiff acknowledged in her rebuttal, however, that many of these problems were outside of Rothweiler's domain. (Id. )
In response to criticisms pointing out Plaintiff's failure to call doctors in her territory that provided the most sales or sales potential for Teva, Plaintiff claimed that her poor performance was due partly to her medical leave and partly to the strategy that management provided her. (Id. at 55-56.) Plaintiff's rebuttal also criticized negative comments related to her failure to perform well in Indiana, claiming that "Teva refused to provide or even engage" her in discussion about modifying her territory to account for her medical condition. (Id. at 57.) Plaintiff concluded her rebuttal stating that Teva failed to accommodate her medical issues and resolve other non-medical problems that affected her performance in 2014. (Id. at 59-64.) Within this narrative, Plaintiff accused Muller of being "dismissive" of her "disability" during an in-person performance review because it "seem[ed] to [her]" that she had to endure a poor performance review from Muller in 2014 because of her request for an accommodation. (Id. at 62.) While the rebuttal claims that Muller "questioned any legitimate need" for a workplace accommodation given Plaintiff's "only restriction is a 20 [pound] lifting restriction," the rebuttal does not provide specific examples in which Muller directly referenced her request for an accommodation as problematic or negatively affecting her 2014 performance review. (See
This narrative also accused Muller of making crude, sexual remarks on several occasions to other Teva employees. (Id. at 62-64.) Plaintiff's rebuttal claimed that Muller "degraded the standards of behavior" within his division, and that his behavior was related to other instances in which Teva employees had mocked the patients of doctors to whom they marketed Teva products. (Id. at 63-64.)
XI. Plaintiff's Request for Excess Insurance
In March 2015, Teva began offering certain employees excess insurance in addition to their regular auto insurance coverage. (Id. , R. 81-18, Rohach Aff. ¶ 2.)6 Plaintiff called Teva's human resources department to inquire about this benefit, and she spoke with Melissa Slifer, the Teva employee responsible for such inquiries. (Id. ¶ 4;
Plaintiff believes she was denied the insurance because of her gender, disability, and previously-filed discrimination claims. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 93-94; see also
XII. Plaintiff's 2015 Leave and Termination in 2016
On March 4, 2015, Plaintiff injured herself when she attempted to move boxes of Teva promotional materials that had been delivered to her home. (Id. R. 86-6, Keen Oct. 15 Dep. Tr. at 105-06; 16-cv-9964, R. 41-2 at 84-86, Workers' Comp. Claims.) Because Plaintiff did not know the extent of her injuries, she did not immediately inform Teva of the injury. (14-cv-9626, R. 86-6, Keen Oct. 15 Dep. Tr. at 109-10.) After she sought medical treatment, Plaintiff went on leave in April 2015. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 61.) Plaintiff last performed work for Teva in April 2015. (Id. ¶ 62.) On April 20, 2015, Plaintiff had another surgery to address problems with her shoulder and cervical spine. (16-cv-9964, R. 40-2, Keen March 29-30 Dep. Tr. at 358, 369.) Plaintiff also filed a workers' compensation claim with the IWCC for this injury. (Id. , R. 41-2 at 84, Workers' Comp. Claims.)
Later in April 2015, Teva did not promptly provide Plaintiff with a medical case manager to address medical issues resulting from Plaintiff's surgery. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 99-100.) Plaintiff did not understand that Teva had any obligation to provide her with a case manager, but instead she believed that the appointment of a case manager was "the process [she] was supposed to go through as an employee." (Id. at 100.) Plaintiff spoke with Teva vice president Ken Adamson regarding her medical issues in 2015, but Adamson never promised a case manager to Plaintiff. (Id. at 101-02.)
In July 2015, Plaintiff's doctor drafted a letter stating that he did not think Plaintiff could be accommodated to return to work unless she would: be restricted to lifting no more than a pound with her right arm;7 refrain from pushing, pulling, or any repetitive motion; and refrain from typing or driving for any extended period of time. (Id. , R. 30-8 at 24, July 9, 2015, Dr. Shi Letter;
Plaintiff, however, refused to authorize Defendants' review of her medical records, and, having exhausted all of her FMLA leave, Plaintiff was placed on personal, unpaid leave on July 30, 2015, and given notice that she would need to return her company car. (Id. , R. 30-8 at 34-35, Bobrowski July 30, 2015, Letter to Keen.) Shortly thereafter, however, on August 3, 2015, Bobrowski sent a letter to Plaintiff stating that they would extend her leave of absence through September 18, 2015, pursuant to "the Americans with Disabilities Act and the Illinois Human Rights Act." (Id. , R. 30-9 at 42, Bobrowski Aug. 3, 2015, Letter.)
In August 2015, Teva again delivered several boxes containing promotional materials to Plaintiff, which were delivered to her front porch and partially obstructed the entrance to her home. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 81-82.) To avoid lifting the boxes, Plaintiff opened them, removed the promotional materials inside them, and placed the promotional materials in her company car that Teva later came to retrieve on August 13, 2015. (Id. at 83.)
Plaintiff was not compensated for her absence from work that she took in April 2015. (Id. at 113.) During this time, Defendants' disability benefits vendor, the Matrix Company ("Matrix"), informed Plaintiff that she would not receive disability benefits because she made a claim for a workplace injury, an injury that was excluded under her disability benefits policy. (Id. at 113-15.) Plaintiff believed that her failure to receive disability benefits was retaliatory because she was not paid on her workers' compensation claim, and she believed Teva's policy required her to be paid either the disability benefits or workers' compensation. (Id. at 116-17.) Plaintiff's workers' compensation claim, however, was still pending at the time of her deposition when she testified that she had not yet received any workers' compensation benefits. (Id. at 121.) Matrix also informed Plaintiff that she could receive disability benefits if she entered into a "reimbursement agreement" with Teva that required her to waive certain medical and legal costs she had incurred, but Plaintiff refused to accept this agreement. (Id. at 123-24, 129-30.) Plaintiff believes that her failure to receive any disability benefits was due to retaliation, but she could not identify any specific individual at Teva who retaliated against her. (Id. at 126, 135.) Instead, she identified a "woman" working at Matrix as the person who retaliated against her, and also attributed retaliation to her human resources and sales managers because she "worked with them" and they were "involved in the decisions not to facilitate [her] claims[.]" (Id. at 126-28.)
Also during this timeframe, in response to Plaintiff's workers' compensation claims, Debbie Smith of Scott insurance was investigating the shipments of Teva promotional materials that were sent to Plaintiff's house in 2015, and Defendants represented to Smith that they had sent fewer boxes than were actually received. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 95-96.) Plaintiff believes that this incomplete information was to retaliate against her for filing complaints with the U.S. Equal Employment Opportunity Commission ("EEOC"). (Id. ). Plaintiff speculates that there may have been telephone conversations providing further factual support for her belief that Defendants provided incomplete information to Smith in retaliation. (Id. at 99.)
Plaintiff attempted to return to work on September 21, 2015. (Id. at 141.) On that day, she did not call any doctors or pharmacists to sell Teva products, but instead *711performed administrative and other tasks from her home to prepare herself to perform sales-related work. (Id. at 141-42, 144, 152.) Plaintiff's superior, Rothweiler, instructed her that she could not return to work until she provided Teva with a medical clearance from her doctor. (Id. at 152-53.) Plaintiff obtained medical clearance from her doctor, but the clearance restricted her to driving only four hours per day. (Id. at 153-54.) Plaintiff's doctor also restricted her to only twenty minutes of typing on her computer at a time. (Id. at 154.) As for weight-lifting restrictions, Plaintiff was restricted to lifting three pounds. (Id. ) Bobrowski forwarded Plaintiff's doctor's recommendations to Work Care, and Work Care sought further clarification from Plaintiff's doctor. (Id. , R. 39, Pl.'s Resp. to Defs.' SOMF ¶ 27.) Teva's policy required this process of clearing Plaintiff's return-to-work request with Work Care. (Id. , R. 30-9, Bobrowski Feb. 28 Dep. Tr. at 50.)
Another requirement in Teva's policy was for Defendants to meet with Plaintiff to help them understand and implement any reasonable accommodations that would allow Plaintiff to return to work. (Id. at 50-52.) Bobrowski contacted Plaintiff to meet with him, Rothweiler, and Muller in Kansas City in early November to ask more questions about Plaintiff's ability to do her job. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 159.) The meeting was scheduled for November 3, 2015, and Plaintiff did not attend because she had jury duty. (Id. at 160.) Plaintiff also declined any meeting because she believed that she had already satisfactorily explained to Bobrowski that she could perform her job. (Id. at 160-63.)8 Plaintiff was then asked to attend a meeting at a hotel conference room in Chicago with Rothweiler, but Plaintiff declined to attend that meeting without her attorney and a court reporter. (Id. at 196-97, 231, 354; see also
Plaintiff could not return to work in 2015, and did not endeavor to return to work until April 2016. (Id. at 202-04.) On August 7, 2015, Susan Duff, a Teva benefits analyst, informed Plaintiff that because she had exhausted her FMLA leave and had not been able to return to work, Teva was going to initiate a health insurance plan on her behalf pursuant to the Consolidated Omnibus Budget Reconciliation Act ("COBRA"),
*712(Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 326.)
During the time Plaintiff was on medical leave, she did not use her company car for any business purposes. (Id. at 166-68.) Plaintiff learned from Bobrowski that Teva was taking away her company car for that reason, and she believed that this decision was retaliatory even though she only used the car to attend physical therapy and "store [Teva] promotional items in it." (Id. at 170.) Defendants decided to take away Plaintiff's company car because, under their policy, Defendants will retrieve an employee's company car if the employee has been away from work an extended period of time and has exhausted his or her FMLA leave. (Id. , R. 30-9, Bobrowski Feb. 28 Dep. Tr. at 119-20, 123.)
Additionally, while her workers' compensation claim was pending, Plaintiff learned that she was under surveillance in September 2015. (Id. at 214-216, 218-20.) Defendants hired a company to watch Plaintiff in order to test the merits of her workers' compensation claim. (Id. , R. 30-9, Bobrowski Feb. 28 Dep. Tr. at 47-48.) The surveillance tape, however, played no role in Teva's decision whether to permit Plaintiff to return to work. (Id. at 45.)
After November 2015, Plaintiff only communicated with Defendants to provide them updates on her health and to send Defendants her expense reports. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 232-35; see also
XIII. Plaintiff's IDHR and EEOC Complaints
Throughout her employment with Defendants, Plaintiff filed several discrimination complaints against Defendants with federal and state agencies. On September 23, 2013, Plaintiff filed claims alleging discrimination and retaliation with the Illinois Department of Human Rights ("IDHR") and EEOC. (Id. , R. 28, Answer to Am. Compl. at 7-8.) On July 15, 2014, Plaintiff filed gender and disability discrimination claims as well as retaliation claims with the EEOC and IDHR. (Id. at 24.) On July 21, 2015, Plaintiff filed more discrimination and retaliation claims against Defendants with the EEOC and IDHR. (Id. at 56-57.) Finally, on February 1 and July 21, 2016, Plaintiff again filed discrimination and retaliation claims with the EEOC. (Id. at 72, 83.)
PROCEDURAL BACKGROUND
On November 12, 2014, Plaintiff filed an action in the Circuit Court of Cook County asserting claims under the IHRA for discrimination and retaliation. (14-cv-9626, R. 1 at 8, State Court Compl.) Pursuant to
As discovery unfolded, Plaintiff filed a series of amended complaints and, on January 11, 2016, Plaintiff filed a 27-count, 113-page fourth amended complaint. (Id. , R. 72, Fourth Am. Compl.) On March 31, *7132016, Defendants filed a motion for summary judgment. (Id. , R. 81, Mot. for Sum. J. at 1). While that motion was fully briefed and the Court was in the process of resolving it, on October 24, 2016, Plaintiff filed another complaint in this District, which was assigned case number 16-cv-9964. (16-cv-9964, R. 1, Compl.)
On March 3, 2017, the Court consolidated case 14-cv-9626 into case 16-cv-9964 and permitted Plaintiff to file an amended complaint that included all of her claims in both actions. (Id. , R. 25, Min. Entry.) On March 8, 2017, Plaintiff filed her first amended complaint in the later-filed case, which is now the operative complaint governing the two consolidated cases. (Id. , R. 26, Am. Compl.) Plaintiff's first amended complaint alleges 37 counts against Defendants: discrimination against Plaintiff based on her disability in violation of the ADA and IHRA (Counts 1, 2, 12, 13, 20, 21, 23, 25, 28, 37); discrimination against Plaintiff on the basis of her gender in violation of Title VII and the IHRA (Counts 12, 14, 21, 22, 24, 26, 29, 36); retaliation against Plaintiff in violation of the ADA, Title VII, and IHRA (Counts 3, 4, 5, 6, 7, 8, 15, 16, 17, 18, 23, 24, 25, 26, 27, 30, 32, 35); violation of the IWA (Counts 9, 10, 11, 19, 31, 34); and retaliatory discharge under Illinois law for terminating Plaintiff after she filed claims with the IWCC (Count 33). (Id. at 1-173.)
On May 22, 2017, Defendants filed a "supplemental" motion for summary judgment, which renews their motion for summary judgment on Plaintiff's claims that were consolidated from case number 14-cv-9626, and also moves for summary judgment on the additional claims filed in case number 16-cv-9964. (Id. , R. 30, Suppl. Mot. for Summ. J.;
On October 13, 2017, Plaintiff filed a motion to strike parts of Defendants' reply and for sanctions against Defendants. (Id. , R. 47, Mot. to Strike Reply.) Plaintiff contends that Bobrowski's affidavit filed with Defendants' reply brief includes intentionally false statements and facts not included with Defendants' original Local Rule 56.1 statement of facts. (Id. at 1-10.) Plaintiff also argues that Bobrowski's affidavit is "hearsay" and contradicts his prior testimony as well as other documents that are part of the record. (Id. at 3-10.) Plaintiff argues that because of the claimed falsehoods and deficiencies with Bobrowski's affidavit, the Court should strike Bobrowski's affidavit and pages 1-15 of Defendants' reply brief. (Id. at 10.) Plaintiff also submits that the Court should sanction Defendants for allegedly "attempting to completely alter [their] defense at the last minute" and for acting in a "dishonest" manner before the Court. (Id. )
LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to *714judgment as a matter of law." FED. R. CIV. P. 56(a). Summary judgment is proper "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 a matter of law." Celotex Corp. v. Catrett ,
The nonmovant "must go beyond the pleadings (e.g. , produce affidavits, depositions, answers to interrogatories, or admissions on file) to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in [their] favor."
In deciding the motions, the Court cannot weigh conflicting evidence, assess the credibility of witnesses, or determine the ultimate truth of the matter, as these are functions of the jury. Anderson v. Liberty Lobby, Inc. ,
ANALYSIS
I. Disability Discrimination
The ADA prohibits employers from discriminating against a "qualified individual" because of her disability.
"To show that disability discrimination was the 'but for' reason" for an adverse employment action, "a plaintiff can use either direct or circumstantial evidence."
(1) suspicious timing; (2) ambiguous statements or behavior towards other employees in the protected group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically receive better treatment; and (4) evidence that the employer offered a pretextual reason for an adverse employment action.
"If an ADA plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to offer a legitimate nondiscriminatory reason for the employment decision. If the employer succeeds, then the burden reverts to the plaintiff to show that there is a genuine dispute of material fact that the proffered reason for the employment action is pretextual." Hoppe v. Lewis Univ. ,
*716Defendants argue that Plaintiff has failed to present sufficient evidence to survive summary judgment on her claims under the ADA. (16-cv-9964, R. 30-1, Mem. at 4; 14-cv-9626. R, 81-1, Mem. at 3.) The Court addresses each claim below.
A. Intentional Acts of Discrimination
To prove a claim of disability discrimination, Plaintiff "must show that: (1) [s]he is disabled; (2) [s]he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adverse job action was caused by [her] disability." Monroe ,
The conduct Plaintiff complains of is: (1) Defendants' directive that Plaintiff return to work in June 2013 and their alleged refusal to allow her to return until September 2013, (16-cv-9964, R. 26, Am. Compl. at 1-20); (2) Defendants' failure to promote Plaintiff to SESS, (id. at 54-61); (3) Defendants' alleged failure to pay Plaintiff her full 2013 bonus and their conduct that humiliated her in connection with the "Make it Happen" sales contest, (id. at 85-94); (4) Defendants' denial of Plaintiff's request for excess insurance coverage, (id. at 102-07); (5) her poor 2014 performance review, (id. at 111-17); (6) Muller's ridicule of her disability and requests for accommodations, (id. at 128); (7) the shipment of Teva promotional materials to her house in 2015, (id. at 129-30); (8) Defendants' alleged dissemination of false information to Scott Insurance regarding Plaintiff's workers' compensation claim, (id. at 130); (9) Defendants' refusal to assign her a medical case manager, (id. ); (10) Defendants' denial of workers' compensation and short-term disability benefits, (id. ); (11) Defendants' request that Plaintiff sign a reimbursement agreement for disability benefits, (id. ); (12) Defendants taking away her company car and placing her on COBRA health insurance, (id. at 131); (13) Defendants' alleged insistence that she meet her male supervisor alone in a hotel room, (id. ); (14) Defendants' alleged refusal to allow her to return to work in September 2015, (id. ); (15) Defendants' video surveillance of Plaintiff and her daughter, (id. ); and (16) Defendants' termination of her employment, (id. at 167-72). The Court will address each claim in turn.
1. Plaintiff's Attempts to Return to Work in 2013
Plaintiff fails to present any evidence showing that her return to work would not have been delayed in June 2013 but for her disability, A.H. ,
*717(14-cv-9626, R. 86-5, Keen Oct. 14 Dep. Tr. at 75-77;
Plaintiff argues that Defendants' decision to make her undergo a second examination before she returned to work in September was "hogwash or pretext." (14-cv-9626, R. 87, Mem. at 21.) Plaintiff was informed that she had to undergo a second test because the first test found that her neck was normal, but the first test failed to indicate that her neck had a "scar or something to that effect." (Id. , Keen Oct. 14 Dep. Tr. at 86-87.) Plaintiff fails to present any evidence, however, showing that Defendants' proffered explanation was a lie or that the second examination would not have been requested pursuant to Defendants' normal course of business. See Deacon v. Peninsula Chi., LLC , No. 16-CV-1464,
2. The SESS Position
Plaintiff's next disability discrimination claims relate to Defendants' decision to deny her the SESS position. Defendants argue that the Court should grant summary judgment because there was a legitimate, non-discriminatory reason she was not selected for the position that Plaintiff fails to refute. (14-cv-9626, R. 81-1, Mem. at 11.) The Court agrees.
Plaintiff does not genuinely dispute that one of the criteria for the SESS position was to demonstrate qualities of a "leader," "mentor," and "role model." (Id. , R. 81-12 at 11-14, Promotional Guidelines; see also
Looking at the record in its entirety, Plaintiff fails to create a triable issue of fact sufficient to survive summary judgment. See Ortiz ,
Plaintiff also claims that she was far more qualified for the SESS position than other non-disabled men promoted to *719SESS, but she fails to provide evidence that these men were similarly situated to Plaintiff in that they were not considered mentors, role models, or leaders by their superiors.13 (See 14-cv-9626, R. 86-2, Pl.'s SOAMF ¶¶ 24-26.) Plaintiff also submits evidence showing that she received praise about her leadership in 2010 to argue that Defendants' proffered reason for denying her the SESS position was pretextual. (Id. ¶¶ 14-16.) This evidence, however, is insufficient to raise a reasonable inference of pretext or create a genuine dispute of fact. Though Plaintiff was praised once for her leadership in a 2010 performance review, (id. , R. 86-16, Stanek Dep. Tr. at 89),14 it is undisputed that when it came time to consider her SESS candidacy, none of her supervisors considered her a leader, mentor, or role model. (Id. , R. 86-10, Muller Dep. Tr. at 109-10.) Without any evidence to dispute these facts or show that these opinions were pretext for a discriminatory motive, the Court finds that the evidence is not enough to support a reasonable inference of discrimination. Thus, the Court grants summary on Plaintiff's disability discrimination claims relating to the SESS position.
3. The 2013 Bonus and "Make It Happen" Sales Contest
As a preliminary matter, the Court finds, as a matter of law, that listing Plaintiff as ineligible for the "Make it Happen" sales contest is not an adverse job action giving rise to a viable discrimination claim. Defendants ultimately allowed Plaintiff to participate in the contest, but Plaintiff testified that she suffered "great humiliation and embarrassment." (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 37.) Such "embarrassment" without any tangible change in her employment is not an actionable adverse job action. See Jones v. Res-Care, Inc. ,
With respect to Plaintiff's claims that she did not receive her full bonus in 2013, Plaintiff points to no evidence showing that this occurred because of her disability. Instead, the record shows that Plaintiff's reduced bonus was the result of a straightforward application of Defendants' compensation policy. (14-cv-9626, R. 86-10, Muller Dep. Tr. at 114-15.) As noted above, Teva's 2013 Annual Incentive Plan states that "[l]eaves of absence will impact incentive eligibility in proportion to the length of the leave, with the exception of an approved leave that qualifies under FMLA, the Parental Leave Policy and/or *720the Military Leave Policy," (Id. , R. 81-6 at 10, Annual Incentive Plan.) Plaintiff's leave in 2013 was not taken under the FMLA, (id. , R. 86-5, Keen Oct. 14 Dep. Tr. at 62), and there is nothing to demonstrate that such leave was taken pursuant to Teva's parental or military leave policies. Defendants offer a legitimate, non-discriminatory reason for her reduced bonus and Plaintiff simply fails to produce any evidence showing that this reason was pretextual. Ennin ,
4. Denial of Excess Insurance Coverage
It is undisputed that Plaintiff did not automatically qualify for Defendants' excess insurance benefit. (14-cv-9626, R. 81-18, Rohach Aff. ¶¶ 2, 3, 5.) Thus, her claims fail because "an adverse employment action, does not include an employer's refusal to grant an employee a discretionary benefit to which she is not automatically entitled[.]" Hottenroth v. Vill. of Slinger ,
5. The 2014 Performance Review
Plaintiff's disability discrimination claims based on her negative 2014 performance review also fail because she fails to present evidence showing that the negative review would not have happened "but for" her disability. The Court's "concern is not the wisdom or fairness of the rating, but whether it was [the defendant's] honest appraisal of plaintiff's performance, rather than a product of or screen for discriminatory animus." Moore-Fotso v. Bd. of Educ. of the City of Chi. ,
*721Plaintiff's rebuttal to her performance review went on to attack Rothweiler's criticisms about her failure to collaborate with other sales representatives. (Id. at 54, 57-58.) These attacks, however, do not present any evidence connecting Rothweiler's criticisms with her disability. (See
Plaintiff's rebuttal then took issue with Rothweiler's criticisms regarding her failure to focus on customers that had the greatest impact on her sales numbers. (Id. ) She claimed, however, that this was due to management providing her a bad "call plan," and she presents no evidence that Defendants would have given her a better call plan but for her disability. (Id. at 55-57.) Plaintiff also claimed that Rothweiler's criticism relating to her lack of activity in Indiana was unfair because Defendants ignored her request to modify her Indiana territory. (Id. at 57.) This claim, however, is not supported by the record, which shows that Defendants considered her request at length and denied it because she refused to cooperate with Work Care and failed to provide documentation from her doctors stating that such a modification was necessary. (See
The next item on Plaintiff's rebuttal was that she had to deal with Work Care to resolve her medical leave issues, instead of a dedicated Teva employee. (Id. , R. 86-6 at 58, Keen Rebuttal.) She does not point to any evidence, however, showing that Defendants outsourced management of employee medical leave issues because of her disability. (Id. ) She claims that Rothweiler failed to provide her guidance on medical issues, but again provides no evidence that this failure was because of her disability. (Id. at 59.) Additionally, as noted above, this was outside of Rothweiler's domain and instead Work Care's responsibility. (Id. at 55.)
Plaintiff also claimed that Rothweiler's criticisms related to her event programming and late expense reports were unfair because she experienced problems securing funding for events, (id. at 59-60), but again she offers no evidence showing that Rothweiler's criticisms were based on her disability. Next, her rebuttal claimed that Muller was "disruptive" and "demeaning towards" her during an in-person discussion of the 2014 performance review. (Id. at 60.) Her rebuttal, however, did nothing more than disagree with Muller's criticisms, and it failed to provide a causal link between Muller's criticisms and her disability. (Id. at 60-62.) Plaintiff's rebuttal states that, at the end of the in-person review, Muller brought up one of Plaintiff's requested accommodations, but Plaintiff provides no evidence connecting Muller, her disability, and the poor performance review, other than her opinion that "[i]t seems to me that because I had requested the disability accommodation, I had to endure a wrongful review for 2014 not from my manager, but from my director." (Id. at 62 (emphasis added).) Her opinion is insufficient to create a genuine dispute of fact. See Stern v. St. Anthony's Health Ctr. , No. 12-CV-785-SCW,
Plaintiff's rebuttal then described Muller's inappropriate sexual comments, but she offers no evidence showing how Muller's conduct resulted in a poor 2014 performance *722review because of her disability. (See 14-cv-9626, R. 86-6 at 63-64, Keen Rebuttal.) The Court, therefore, concludes that, without any evidence of causation, Plaintiff's disability discrimination claims cannot survive summary judgment. Monroe ,
6. Having Her Disability and Requests for Accommodation Ridiculed by Muller
Plaintiff complains that she "felt" Muller "belittled" her and was "dismissive" of her disability and requests for accommodation. (14-cv-9626, R. 86-6 at 62, Keen Rebuttal;
7. Boxes of Teva Promotional Materials Sent to Plaintiff in 2015
Plaintiff cites to no evidence showing that Defendants would have refrained from sending her boxes of promotional materials in 2015 if not for the fact that she was disabled. (See 14-cv-9626, R. 86-1, Pl's Resp. to Defs.' SOMF ¶ 61;
8. Claim that Defendants Gave Scott Insurance False Information
In response to Plaintiff's workers' compensation claims, Scott Insurance was investigating the 2015 shipments of Teva promotional materials to Plaintiff, and Defendants indicated to Scott Insurance that they had sent fewer boxes than Plaintiff actually received. (16-cv-9964, R. 40-2, Keen March 29-30 Dep. Tr. at 95-96.) Plaintiff surmises that there may have been conversations providing support for her belief that Muller gave Scott Insurance incomplete information to retaliate against her. (See id. at 99.) Such evidence is insufficient at this stage. See Grant ,
9. Allegedly Refusing to Assign Plaintiff a Medical Case Manager
Plaintiff also fails to come forward with any evidence to support her claims related to Defendants' failure to assign her a medical case manager. In April 2015, Teva did not promptly provide Plaintiff with a case manager to address medical issues resulting from her April 2015 surgery.
*723(16-cv-9964, R. 40-2, Keen March 29-30 Dep. Tr. at 99-100.) The Court reiterates that "an adverse employment action does not include an employer's refusal to grant an employee a discretionary benefit to which she is not automatically entitled[.]" Hottenroth ,
Even if Defendants had an obligation to assign Plaintiff a medical case manager, there is no evidence that Defendants would have provided her one but for her disability. It is undisputed that Defendants' failure to assign her a medical case manager was not because of any reason individual to Plaintiff but simply part of Defendants' outsourcing of medical leave issues to Work Care. (See id. at 105-10.) Additionally, Plaintiff was ultimately assigned the equivalent of a medical case manager through Work Care. (See id. at 109.) Accordingly, summary judgment is proper on Plaintiff's claims. See A.H. ,
10. Denial of Workers' Compensation and Disability Benefits
Next, Plaintiff claims that she never received any workers' compensation or disability benefits because of her disability. (16-cv-9964, R. 26, Am. Compl. at 130.) She, however, fails to cite any evidence showing that she would have received such benefits if not for her disability. The record reflects, without any genuine dispute, that Plaintiff was denied these benefits for reasons unrelated to her disability, and that Defendants' third party vendors largely made these decisions instead of Defendants. Defendants' third party vendor that handled Teva's disability benefits program, Matrix, informed Plaintiff that she would not receive disability benefits because she made a claim for a workplace injury-an injury that was excluded under the disability benefits policy. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 114-15.) Plaintiff did not receive workers' compensation payments because her workers' compensation claim was still pending. (Id. at 115, 121.) Plaintiff simply fails to present any evidence that she would have received disability or workers' compensation benefits but for the fact that she was disabled, which is fatal to her claims. See Monroe ,
11. Requesting that Plaintiff Sign a Reimbursement Agreement
Matrix informed Plaintiff that she could receive disability benefits if she entered into a reimbursement agreement with Teva that required her to waive certain legal and medical costs. (16-cv-9964, R. 40-2, Keen March 29-30 Dep. Tr. at 123-24, 129-30.) This conduct, however, cannot give rise to a disability discrimination claim. There is no adverse job action where a plaintiff fails to present evidence that her "benefits would change" because of the employer's action. Douthit v. TC Heartland LLC , No. 1:12-CV-1584-JMS-TAB,
12. Taking Away Plaintiff's Company Car and Placing Her on COBRA
In 2015, Defendants took Plaintiffs' company car away from her and placed her on COBRA health insurance. (Id. , R. 30-8 at 36, Duff Aug. 7, 2015, Letter to Keen;
Instead, the record shows that on August 7, 2015, Susan Duff, a Teva benefits analyst, informed Plaintiff that because she had exhausted her FMLA leave and could not return to work, Teva was going to initiate a COBRA plan on her behalf pursuant to Teva's policy and pay for that plan until March 31, 2016. (Id. , R. 30-8 at 36, Duff Aug. 7, 2015, Letter to Keen.) Plaintiff claims that this was pretextual because Defendants "had never done that before," (id. , R. 40-2, Keen March 29-30 Dep. Tr. at 326), but this is speculation and not evidence of discrimination from which a reasonable jury could conclude that Defendants discriminated against Plaintiff. See Argyropoulos , 539 F.3d at 732.
It is also undisputed that Plaintiff was not using her car for any business purpose at the time it was taken away. (16-cv-9964, R. 40-2, Keen March 29-30 Dep. Tr. at 166-68.)18 There is no dispute that, under Teva's policy, Teva may retrieve a company car if an employee has been away from work on extended leave in excess of FMLA leave. (Id. , R. 30-9, Bobrowski Feb. 28 Dep. Tr. at 119-20, 123; id. , R. 41-2 at 20, H.R. Mgmt. Guideline.) Because Plaintiff's absence exceeded her FMLA leave period, Defendants retrieved her car. (Id. , R. 30-9, Bobrowski Feb. 28 Dep. Tr. at 118-20.) Plaintiff offers no evidence of pretext to raise a triable issue related to Defendants' legitimate, non-discriminatory reason for taking away her company car. See Ennin ,
*725Accordingly, the Court grants summary judgment on these claims.
13. Defendants' Alleged Insistence that Plaintiff Meet Her Supervisor Alone in a Hotel Room
Plaintiff contends that Defendants "demanded that [she] either fly to Kansas City, Kansas[,] or meet in a closed hotel room downtown to be humiliated and harassed by the proven and admitted sexist pervert Teva regional director Matthew Muller," and that "Plaintiff objected to [Defendants'] attempts to put her in the same locked room with Muller as being inappropriate and unreasonable." (16-cv-9964, R. 40, Pl.'s SOAMF ¶¶ 20, 22.) These claims, however, are simply unsupported by the record.
The record shows that Bobrowski contacted Plaintiff to meet with him, Rothweiler, and Muller in Kansas City in November 2015-not alone with Muller-to ask her more questions about her ability to work. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 159.) There is no evidence that Defendants planned for Muller be in a closed hotel room alone with Plaintiff. Plaintiff could not attend this November meeting because she had jury duty. (Id. at 160.) Plaintiff also declined any meeting because she believed that she had already satisfactorily explained to Bobrowski that she could perform her job. (Id. at 160-63.) Plaintiff was then asked to attend a meeting at a hotel conference room in Chicago with Rothweiler , not Muller. (Id. at 171-73, 196-97, 354; see also
14. Refusal to allow Plaintiff to Return to Work in September 2015
Plaintiff also asserts that Defendants refused to allow her to return to work in September 2015 "because of her disability." (16-cv-9964, R. 40, Pl.'s SOAMF ¶¶ 20, 22.) Plaintiff, however, fails to put forth enough evidence to survive summary judgment.
First, Plaintiff's claim that Defendants refused to allow her to return to work in September 2015 is unsupported by the record, because she did not even seek medical clearance to return to work until October 2015. In September 2015, Plaintiff was attempting to return to work but was not ready to do so. (See
To comply with this directive, Plaintiff obtained a note from her doctor in October 2015 clearing her to return to work, but the doctor's note imposed significant limitations on her physical activity, such as: lifting no more than three pounds; driving no more than a total of four hours a day; "sessions on the computer" no longer than 20 minutes; no pushing, pulling, or carrying; and required physical therapy one to two times per week. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 153-54;
*72641-2 at 46, Strnad Oct. 8, 2015, Note.) Work Care then sent Defendants its recommendations for Plaintiff's return-to-work accommodations on October 20, 2015, but these accommodations did not match with what Plaintiff's doctor recommended. (Id. , R. 41-2 at 47, Greaney Oct. 20, 2015, Email.) Specifically, Work Care recommended that Defendants not accommodate her to completely refrain from pushing, pulling, or carrying, but that they limit her to pushing, pulling, or carrying three pounds or less. (Id. ) Work Care then asked Defendants to let it know if they "are able to accommodate these restrictions." (Id. )
Work Care's recommendation left Defendants with significant questions about how to accommodate Plaintiff. The physical requirements of Plaintiff's job included daily driving, getting in and out of her car, carrying promotional materials, climbing and descending stairs, and walking to and from physicians' offices. (Id. , R. 28, Answer to Am. Compl. at 3.) Defendants questioned how they could accommodate "no lifting, pushing or pulling" given Plaintiff's job requirements, and they questioned whether Plaintiff could lift a briefcase or computer case out of her car. (Id. , R. 41-2 at 47, Greaney Oct. 20, 2015, Email.) Defendants received no response as to whether Plaintiff could lift a briefcase or computer case out of her car, and were informed that Plaintiff could perform the following activities: open a "standard office or car door," lift any object three pounds or less, and that she could "push or pull her IPAD with a three pound restriction," a statement that added little clarity to whether she could perform her essential job functions. (Id. ) Defendants were also unclear as to how much time per day she could spend driving to fulfill her job duties because she stated that on certain days she may have to drive at least 30 minutes to attend physical therapy. (Id. ) Finally, Work Care's recommendations offered no clarity as to the duration of these restrictions, stating that Plaintiff's doctors indicated that she would be "evaluated monthly as needed if her symptoms should change ... [at which point] her restrictions would again be appropriately medically changed[.]" (Id. )
With these significant questions regarding reasonable accommodations lingering, Defendants endeavored, pursuant to Teva's policy, to meet with Plaintiff so that they could understand and implement any reasonable accommodations Plaintiff needed upon her return. (Id. , R. 40-3, Bobrowski Feb. 28 Dep. Tr. at 50-52.) Bobrowski contacted Plaintiff about meeting with him, Rothweiler, and Muller in Kansas City in early November to ask more questions about Plaintiff's ability to do her job. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 159.) As noted above, however, Plaintiff resisted these meetings and eventually did not meet with Defendants because of another surgery she underwent on November 24, 2015. (Id. at 198-201; see also
Following the surgery on November 24, 2015, Plaintiff did not endeavor to return to work until April 2016. (Id. , R. 40-2, Keen March 29-30 Dep. Tr. at 204-05.) Plaintiff simply presents no evidence that Defendants refused to let her return to work during September 2015 or thereafter. Rather, the record reflects, without any genuine dispute, that Defendants were actively trying to accommodate Plaintiff but could not obtain the information they needed. Without any evidence of pretext to counter these legitimate, non-discriminatory reasons explaining the events that transpired from September 2015 through her termination, the Court grants summary judgment. See Ennin ,
Plaintiff's claims also fail because she does not provide any evidence showing that in September 2015, she was "qualified to perform the essential functions of her *727job even with a reasonable accommodation," Basden v. Prof'l Transp., Inc. ,
Suggesting that Defendants' conduct in September 2015 was pretext for discrimination, Plaintiff also submits that she had returned to work in 2011 with similar physical restrictions. (See 16-cv-9964, R. 40, Pl.'s SOAMF ¶¶ 15, 19.) This claim, however, is not supported by the record. In 2011, Plaintiff's restrictions were as follows: working no more than 8 hours a day; no sitting, standing, or walking for more than four hours at a time; no lifting in excess of ten pounds with her right arm; and avoiding any pushing and pulling with her right arm. (Id. , R. 41-2 at 27, Regan Dec. 22, 2011, Email.) These directives were far less restrictive than the ones Dr. Strnad proposed in 2015, and given the many additional surgeries Plaintiff had undergone since 2011, Defendants were under no obligation to blindly institute the same accommodations they had instituted in 2011. Gratzl v. Office of Chief Judges of 12th, 18th, 19th, & 22nd Judicial Circuits ,
Next, Plaintiff contends that Defendants knew she was able to perform her job by virtue of the video surveillance they conducted in September 2015. (16-cv-9964, R. 40, Pl.'s SOAMF ¶ 10.) Plaintiff cites to no evidence in her statements of fact, however, from which a reasonable jury could infer that this was the case. Specifically, Plaintiff cites no evidence showing that the Teva employees responsible for clearing her return to work saw the surveillance footage before September 2015, nor does she produce any evidence showing that the video surveillance had any connection to the human resources department's decisions affecting her. (See
15. Filming and Videotaping Plaintiff and Her Daughter
Plaintiff relatedly claims that Defendants' videotaping of her and her minor daughter constitute disability discrimination. (Id. , R. 26, Am. Compl. at 131.) Plaintiff presents no evidence that this is an "adverse job action" that would give rise to a disability discrimination claim. See Lavalais ,
16. Plaintiff's Termination
Plaintiff claims that Defendants terminated her because of her disability, (16-cv-9964, R. 26, Am. Compl. at 167-72), and argues that Defendants violated the ADA because that statute ostensibly "allows an indeterminate amount of leave, barring undue hardship, as a reasonable accommodation." (Id. , R. 38, Mem. at 9 (emphasis omitted).) In response, Defendants argue that Plaintiff was not a "qualified individual" under the ADA at the time of her termination. (Id. , R. 30-1, Mem. at 4-7.) The Court agrees with Defendants.
"The ADA is an antidiscrimination statute, not a medical-leave entitlement," and, as such, "[a]n employee who needs long-term medical leave cannot work and thus is not a 'qualified individual' under the ADA." Severson v. Heartland Woodcraft, Inc. ,
There is no evidence that following her surgery in November 2015, Plaintiff provided Defendants with any definite return date, and instead she was on an indefinite period of leave in which she periodically provided updates on her health.20 Nor does Plaintiff produce any evidence showing that she was able to perform the essential functions of her job at the time of her termination. Accordingly, Plaintiff was not a "qualified individual" under the ADA at the time she was terminated, and the Court will grant summary judgment on her claim for disability discrimination connected to her termination. Even if Plaintiff was a "qualified individual," there is no evidence that Plaintiff was fired because of her disability as opposed to Defendants' application of their leave of absence and workers' compensation policies. (See 16-cv-9964, R. 46, Defs.' Resp. to Pl.'s *729SOAMF ¶ 37;
Plaintiff's reliance on Garcia-Ayala v. Lederle Parenterals, Inc. ,
B. Failure to Accommodate
Defendants also move for summary judgment on Plaintiff's failure to accommodate claims, (14-cv-9626, R. 81-1, Mem. at 6-7; 16-cv-9964, R. 30-1, Mem. at 7-10), which are that: (1) Defendants failed to accommodate her return to work in 2013, (Id. , R. 26, Am. Compl. at 6-7); and (2) Defendants failed to accommodate her with a modified sales territory in 2015, (id. at 111-17). These are the only claims in the operative complaint that can be reasonably understood as failure to accommodate claims. See Hooper v. Proctor Health Care Inc. ,
For her failure to accommodate claims, Plaintiff must prove that (1) she is a "qualified individual" with a disability; (2) Defendants were aware of her disability; and (3) Defendants failed to reasonably accommodate her disability. Preddie v. Bartholomew Consol. Sch. Corp. ,
*730Turning to her claim that Defendants refused to accommodate her return in 2013, (16-cv-9964, R. 26, Am. Compl. at 6-7), the Court concludes that summary judgment is proper on this claim. As noted above, there is no evidence that Defendants ever refused any of her requests for accommodations in 2013, as opposed to merely delaying their approval. Although Plaintiff requested to return to work with reasonable accommodations in June 2013, there is no dispute that Plaintiff's doctor informed Defendants that Plaintiff was scheduled for another surgery that had not yet occurred, and that she was to refrain from work until the surgery. (14-cv-9626, R. 81-12 at 16, May 8, 2013, Shapiro Letter.) When Plaintiff requested that Defendants accommodate her return following the surgery, they ultimately granted her request and allowed her to return to work with weight-lifting restrictions on September 12, 2013. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 11.) Plaintiff complains that they did not allow her to return to work two weeks earlier, on August 29, 2013, (e.g. , 16-cv-9964, R. 26, Am. Compl. at 6), but an employer need only provide a reasonable accommodation, not the accommodation the employee prefers. Hoppe ,
Plaintiff's remaining failure to accommodate claim is that Defendants failed to modify her sales territory. First, this claim fails because it hinges on Dr. Greaney's purported denial of the sales territory modification. (16-cv-9964, R. 26, Am. Compl. at 111-17.) Dr. Greaney testified, however, that he did not deny Plaintiff's request for a reasonable accommodation. (14-cv-9626, R. 81-15, Greaney Aff. ¶ 6.) Plaintiff offers no evidence to dispute this testimony.
Even looking past Dr. Greaney and examining Defendants' conduct, Plaintiff's claim fails. There is no evidence from which a reasonable jury could find that Plaintiff attempted to engage in the requisite "interactive communication process" with Defendants or Dr. Greaney "to determine a reasonable accommodation," or that Defendants were "responsible for any breakdown that occurred in that process." Ekstrand ,
Plaintiff's claim also fails because there is no evidence that any of Plaintiff's doctors, as opposed to Plaintiff herself, communicated with anyone at Teva or Work Care regarding her accommodation of a modified sales territory. (See
Defendants accommodated Plaintiff throughout her tenure at Teva. In addition to the several leaves of absence that Defendants approved, Defendants gave Plaintiff an upgraded vehicle, a rolling bag, a change of territory in 2011-2012, and modified work hours so that Plaintiff could visit her doctors and attend physical therapy. (16-cv-9964, R. 40-2, Keen March 29-30 Dep. Tr. at 46-56.) Indeed, the undisputed evidence shows that Plaintiff returned to work in 2013 with medical restrictions, and did not go on leave again until 2015 because of an injury she sustained while lifting a box, not because she had to work with doctors in Indiana. (14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶ 61.) Before that 2015 injury, she was able to perform the essential functions of her job with the accommodations Defendants had provided. Thus, Plaintiff does not raise a genuine dispute of fact as to whether Defendants failed to reasonably accommodate her. Hooper ,
II. Gender Discrimination
To avoid summary judgment on her Title VII gender discrimination claims, Plaintiff "must present facts from which a reasonable juror could find that the [D]efendants terminated [her] because of [her] sex." Steinhauer v. DeGolier ,
*732Plaintiff asserts gender discrimination claims based on: (1) Defendants' failure to promote her to SESS; (2) Defendants' refusal to pay Plaintiff her full 2013 bonus and their decision to list her as ineligible for the "Make it Happen" sales contest; (3) Defendants' denial of Plaintiff's request for excess insurance coverage; (4) Defendants' refusal to modify her sales territory and her poor 2014 performance review; and (5) Defendants' conduct in 2015 and 2016 relating to her leave, termination, and denial of disability benefits. (16-cv-9964, R. 26, Am. Compl. at 54-57, 62-65, 92-100, 108-10, 118-20, 137-39, 162-66.)
Turning first to the SESS position, Plaintiff offers no evidence that Defendants denied her the position because of her gender. (See 14-cv-9626, R. 86-5, Keen Oct. 14 Dep. Tr. at 114.) The only evidence she provides is the fact that several men were promoted to the position despite not meeting all of the qualifications. (Id. , R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶¶ 33, 34.) There is no evidence, however, showing that those men were similarly situated to Plaintiff-i.e., that their superiors did not consider them leaders, mentors, or role models. Kuttner v. Zaruba ,
Plaintiff argues that Defendants' decision is suspicious because she met all of the objective criteria and was recommended for the SESS position, but there is no dispute that being a leader, mentor, and role model was also a requirement. (14-cv-9626, R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 13.) Plaintiff puts forward no evidence showing that this legitimate and non-discriminatory reason for denying her the SESS position was a lie or pretext for discrimination. Maclin v. SBC Ameritech ,
Plaintiff argues nevertheless that Defendants' reasons for not promoting her to SESS were pretextual because Defendants lacked the authority to reject qualified candidates. (14-cv-9626, R. 87, Mem. at 19.) There is no dispute, however, that Plaintiff was unqualified because one of the requirements was to be considered a role model, mentor, and leader. Plaintiff fails to present evidence of pretext or any other evidence from which a reasonable jury could conclude that Defendants denied Plaintiff the SESS position because of her gender, See Ortiz ,
Next, Plaintiff claims that Defendants discriminated against her by not paying her full 2013 bonus and humiliating her during the "Make it Happen" sales contest. That Plaintiff was embarrassed because she was listed as ineligible for the sales contest is not an adverse employment action that would give rise to a discrimination claim. See Jones ,
Turning to Defendants' denial of Plaintiff's request for excess insurance coverage, Plaintiff cannot survive summary judgment because denial of excess insurance-a *733benefit to which she was not automatically entitled-is not an adverse job action giving rise to a discrimination claim. Hottenroth ,
With respect to Plaintiff's gender discrimination claims based on her termination, leave, and denial of disability benefits in 2015-2016, Plaintiff argues that she was treated more harshly than two male employees, Sean Cleveland and David Musgrave. (16-cv-9964, R. 38, Mem. at 7-8, 11-12.) The Court again finds that Plaintiff's claims are not supported by the record, and therefore summary judgment is appropriate on her gender discrimination claims.
"Similarly situated employees must be directly comparable to the plaintiff in all material respects, but they need not be identical in every conceivable way." Coleman v. Donahoe ,
Plaintiff claims that her male comparators were treated differently in that, unlike her, "Cleveland was able to keep his car[.]" (Id. , R. 40, Pl.'s SOAMF ¶ 35 (emphasis omitted) ). The evidence Plaintiff cites to, however, indicates that Cleveland was allowed to keep his company car because, unlike Plaintiff, he was designated as being on short-term disability leave. (Id. , R. 41-3 at 33-36, Field July 28, 2016, Email; compare
Plaintiff also argues that Cleveland was given more leave than she was, and that he was given health and dental insurance while on leave. (Id. , R. 40, Pl.'s SOAMF ¶ 35.) Cleveland, however, endeavored to provide Defendants with a definite return date, whereas Plaintiff did not. (Compare
*734Mgmt. Guideline.) Cleveland was also on a disability leave, unlike Plaintiff. (See
Musgrave, like Cleveland, was not similarly situated to Plaintiff. It is undisputed that Musgrave was also on a disability leave. (Id. , R. 41-3 at 24, Vest July 10, 2013, Email.) Additionally, as further evidence that Plaintiff was treated the same as other employees, Musgrave, like Plaintiff, had his company car taken away when his status changed from short-term to long-term disability leave. (See
Plaintiff also presents no evidence that Cleveland or Musgrave filed a workers' compensation claim like she did. (See
III. Retaliation
Defendants argue that the Court should grant summary judgment on Plaintiff's retaliation claims because she has not identified any causal link between any protected activity she engaged in and an adverse employment action. (16-cv-9964, R. 30-1, Mem. at 11-13;
The causation standard is generally the same for ADA and Title VII retaliation claims. See Johnson v. City of Chi. Bd. of Educ. ,
*735Sauzek v. Exxon Coal USA, Inc. ,
The retaliatory acts Plaintiff complains of are: (1) Defendants' directive that Plaintiff return to work in June 2013 and their subsequent refusals to permit her return to work; (2) Defendants' failure to promote Plaintiff to SESS; (3) Defendants' alleged failure to pay Plaintiff her full 2013 bonus and alleged humiliation of Plaintiff in connection with the "Make it Happen" sales contest; (4) Defendants' failure to offer her excess insurance; (5) Defendants' alleged refusal to allow Plaintiff to attend a career workshop; (6) Plaintiff's poor 2014 performance review and Defendants' denial of Plaintiff's request to modify her sales territory; (7) Defendants' alleged dissemination of false information to Scott Insurance; (8) Defendants' alleged refusal to provide Plaintiff with a medical case manager; (9) Defendants' failure to pay Plaintiff workers' compensation or disability benefits after April 2015; (10) Defendants' retrieval of Plaintiff's company car and decision to transfer her to a COBRA health insurance plan; (11) Defendants' video surveillance of Plaintiff; (12) Defendants' alleged refusal to allow Plaintiff to return to work in 2015; and (13) Defendants' termination of Plaintiff. (16-cv-9964, R. 26, Am. Compl. at 21-44, 66-80, 102-123, 140-43, 146-49, 156-61.)
By filing complaints with the EEOC and IDHR, (id. , R. 28, Answer to Am. Compl at 7-8, 24, 56-57, 72, 83), Plaintiff no doubt engaged in protected activity. Greengrass v. Int'l Monetary Sys. Ltd. ,
Plaintiff offers no evidence showing a causal link between her abortive attempts to return to work in 2013 and any other protected activity. (See 14-cv-9626, R. 86-1, Pl.'s Resp. to Defs.' SOMF ¶¶ 19-26;
Plaintiff's retaliation claims based on Defendants listing her as ineligible for the "Make it Happen" sales contest and their alleged failure to pay her full 2013 bonus fare no better. For her retaliation claims, Plaintiff must prove that she suffered an adverse employment action. See Rodrigo ,
Plaintiff's retaliation claim based on Defendants' failure to provide her excess insurance coverage, a benefit to which she was not automatically entitled, cannot survive summary judgment because denial of such a benefit is not an adverse employment action. See Hottenroth ,
With respect to her 2014 performance review, Plaintiff was asked to explain how it was retaliatory, and she could provide no facts tying any protected activity to her poor performance review. Instead, she merely disagreed with the 2014 performance review's assessment and expressed an "opinion" that Defendants retaliated against her. (Id. , R. 86-6, Keen Oct. 15 Dep. Tr. at 141, 143-44, 147-148, 152-54, 158-59.) Because she provides no evidence causally tying any protected activity to her 2014 performance review, summary judgment is appropriate against this claim as well.
With respect to Defendants' alleged dissemination of false information to Scott Insurance, Plaintiff cites to no evidence showing that any information provided to Scott Insurance was in retaliation or related to any protected activity. Plaintiff was questioned directly as to how any retaliation occurred related to these allegations, but she could provide no explanation or point to any evidence showing how any information provided to Scott Insurance was retaliatory. (16-cv-9964, R. 40-2, Keen March 29-30 Dep. Tr. at 95-98.) She also cites no other evidence giving rise to an inference of retaliation for this claim.
Plaintiff, likewise, offers no evidence causally linking any protected activity to Defendants' failure to provide her with a medical case manager, (id. at 99-112), Defendants' failure to pay her workers' compensation and disability benefits, (id at 114-16, 125-28, 135),22 Defendants' retrieval of her company car and placing her on a COBRA health insurance plan, (id at 165-71, 323-26), or Defendants' video surveillance of her or her daughter, (id. at 217-19). With respect to Defendants' alleged refusal to allow Plaintiff to return to work in 2015, Plaintiff fails to provide any evidence showing that Defendants' conduct in 2015 was tied to any protected activity. As for her termination, there is no evidence that Plaintiff's termination was causally connected to the filing of any discrimination complaint, and her statements of fact do not even claim that there was such a causal connection.23 (Id. , R. 39, Pl.'s Resp. to Defs.' SOMF ¶¶ 46-48, 54-47;
This case is simply unlike those that have survived summary judgment. See Parker v. Ill. Human Rights Comm'n , No. 12-CV-8275,
Plaintiff argues that her retaliation claims survive summary judgment because a number of the adverse actions she complains of happened after she filed discrimination complaints. (16-cv-9964, R. 38, Mem. at 15.) Plaintiff, however, does not point to any evidence that Defendants timing was suspicious, just that actions happened at some time after she engaged in protected activity. This is insufficient. See Sauzek ,
Also undermining Plaintiff's argument is that she fails to present any evidence showing that she was on an ADA-protected leave when she was terminated. (See
IV. Retaliatory Discharge
Plaintiff also claims that Defendants terminated her in retaliation for filing workers' compensation claims with the IWCC. (16-cv-9964, R. 26, Am. Compl. at 150-52.) "In Illinois ... it is unlawful to terminate an employee in retaliation for exercising her rights under the [Illinois Workers' Compensation Act]." Gordon v. FedEx Freight, Inc. ,
Here too, Plaintiff fails to come forward with any evidence of a causal link. Plaintiff's termination was far removed from her filing of claims with the IWCC, occurring approximately a year after her last IWCC filing. (See
V. IWA Claims
Based on the same conduct alleged for all of the claims above, Plaintiff claims that Defendants violated the IWA by retaliating against her for filing complaints with the EEOC, IDHR, and IWCC. (16-cv-9964, R. 26, Am. Compl. at 45-53, 81-84, 143-45, 153-55.) To survive summary judgment, Plaintiff must come forward with some evidence that Defendants' actions were taken with retaliatory motive in response to her filing of complaints with the EEOC, IDHR, or IWCC. Williams v. Office of Chief Judge of Cook Cty. Ill. ,
VI. Plaintiff's Motion to Strike and for Sanctions
Finally, Plaintiff argues that the Court should strike Defendants' reply. (16-cv-9964, R. 47, Mot. to Strike.) Because the Court has not relied on Defendants' reply brief in its decision, the motion to strike is denied as moot. In addition, the Court disagrees with Plaintiff that Defendants' reply brief is "dishonest" or "warrants severe sanctions." Plaintiff relies on National Hockey League v. Metropolitan Hockey Club, Inc. ,
CONCLUSION
For the foregoing reasons, Defendants' motions for summary judgment (14-cv-9626, R. 81; 16-cv-9964, R. 30) are GRANTED, and Plaintiff's motion to strike and for sanctions (16-cv-9964, R. 47) is DENIED. The question before the Court is not whether Defendants treated Plaintiff in a fair manner in view of her contribution to Defendants' bottom line. The question is whether Plaintiff has presented any material issues of fact or law that require a potential jury trial in light of the undisputed facts, The Court has answered this question with a negative answer. Therefore, judgment is ENTERED in favor of Defendants and against Plaintiff on all counts in her first amended complaint, (16-cv-9964, R. 26).
Footnotes
303 F. Supp. 3d 690 (Keen v. Teva Sales & Mktg., Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.