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May 5, 1989


The opinion of the court was delivered by: NORGLE


 Before the court is defendant's, Mars, Incorporated, motion for summary judgment, pursuant to Fed. R. Civ. P. 56(b), on all counts of plaintiff's, Mary Muellner, five count complaint alleging retaliatory discharge, breach of contract, age discrimination, intentional infliction of emotional distress, and negligent misrepresentation. For the following reasons, Count III is dismissed and summary judgment is entered in favor of Mars and against Muellner on Counts I, IV and V, and on part of Count II.


 The following facts are necessary to understand the context in which Muellner brings her claims. In October, 1942, Mars hired Muellner to work at a Mars' factory in Chicago, Illinois. In August, 1984, Muellner injured her hand on the job. On September 4, 1984, Muellner was placed on short term disability at 100% of her base pay. On January 7, 1985, Muellner's disability payments were reduced to 75% of her base pay. On March 2, 1985, Mars placed Muellner on long-term disability at 60% of her base pay. According to Mars, the shift from short to long-term disability and the reductions in benefits were pursuant to its contract with its disability insurer. At the time Mars placed Muellner on long-term disability, both Mars and Mars' insurer advised her to apply for social security disability benefits.

 On April 9, 1985, Muellner applied for disability benefits from the Social Security Administration ("SSA"). Muellner submitted a Disability Report to the SSA in which she answered numerous questions regarding her alleged disability and entitlement to benefits. Specifically, she was asked to "briefly explain the injury or illness which stops . . . [her] . . . from working." Muellner responded: "major depression and anxiety about stealing things which I don't have any use for. angina, arthritis, high blood pressure." Muellner further stated that her "condition" first bothered her on September 2, 1982 and finally caused her to stop working on September 1, 1984. Finally, Muellner, in explaining how her condition kept her from working, stated "I suffer from extreme anxiety and I constantly worries [sic] and question people about taking things."

 The Disability Report informed Muellner that the information she provided would be used in making a decision on her claim. More importantly, Muellner signed the Disability Report directly beneath the following warning: "knowing that anyone making a false statement or representation of a material fact for use in determining a right to payment under the Social Security Act commits a crime punishable under federal law, I certify that the above statements are true."

 Also in April 1985, apparently in connection with Muellner's application for continued long term disability payments from Mars' insurer, Dr. Susnil Bagri opined that "at present Ms. Muellner is totally disabled."

 Muellner claims, among other things, that she was not disabled either at the time she was placed on disability leave or at the time she applied for social security disability benefits and is not now disabled. (Muellner Dep. at 121-24). Muellner further claims that she was placed on disability leave because she refused to accept early retirement. However, Muellner has proffered no evidence that she objected to being placed on disability leave until after her disability benefits expired. Since September 1984, Muellner has not obtained nor even sought other employment. (Muellner Dep. at 12).


 The pleadings in this matter are like ships that fail even to pass each other in the night. Mars contends that Muellner should be judicially estopped from contradicting her prior statements that she was disabled and unable to work and that therefore Muellner cannot create a genuine issue over the material fact of her ability to work during the period relevant to this action. Consequently, Mars urges that it is entitled to judgment as a matter of law on all five counts. According to Mars, a prerequisite to Muellner's ability to recover on each count, including a count for breach of contract to pay disability benefits, is her ability to work. Mars supports its motion with selected excerpts from Muellner's deposition, the Disability Report and certain correspondence.

 Muellner responds that the doctrine of judicial estoppel is inapplicable because there has not been a prior judicial proceeding. Muellner further asserts that the deposition excerpts present Muellner's statements out of context. Yet, Muellner does not supplement them. Nor does she submit even an affidavit, preferring to rely on the allegations of her unverified complaint, representations of counsel and certain documents and correspondence which are not responsive to the matter at hand.

 Mars replies that, as evolved, the doctrine of judicial estoppel may properly be applied where the prior position was taken in an administrative proceeding. Mars further asserts that, even if the doctrine of judicial estoppel is inapplicable, summary judgment is still appropriate, as Muellner cannot create genuine issues necessary to avoid summary judgment by merely contradicting her prior statements in the Disability Report. Mars also cites for the first time in its reply, as grounds for summary judgment, or more properly dismissal, arguments previously asserted only as defenses in its answer: namely, that Count III, alleging age discrimination, is barred by Muellner's failure to exhaust remedies pursuant to the Illinois Human Rights Act; that Count IV, alleging intentional infliction of emotional distress, is barred by the exclusivity of the Illinois Workers' Compensation Act; and that Count V, alleging negligent representation of employee benefits, is preempted by ERISA.


 In its reply, Mars raises certain arguments for the first time as grounds for dismissal of Counts III, IV and V. Mars' Reply p. 4 n. 3. The court uses the word "arguments" loosely, as Mars merely cites a total of three cases in a single footnote without further elucidation. Muellner has not responded to these arguments.

 All arguments in favor of a motion should be incorporated in the initial memorandum supporting the motion so that the opposing party may address all arguments in its response. This ensures orderly and efficient briefing. On one hand, the court, by considering the arguments belatedly advanced, does not wish to encourage the type of disorganized pleading engaged in by Mars. On the other hand, a substantial period of time has elapsed since Mars filed its Reply without Muellner seeking leave to respond to the additional arguments.

 The court will address the argument advanced by Mars with respect to Count III. Count III, alleging age discrimination, is dismissed for failure to comply with the Illinois Human Rights Act ("IHRA"). Ill. Rev. Stat. ch. 68, para. 1-101 et seq. (1987). The IHRA, which creates both a comprehensive scheme of remedies for human rights violations, among them age discrimination, and an administrative agency to investigate and adjudicate allegations of such violations, precludes Muellner's direct access to the courts. As Muellner has failed to assert compliance with the IHRA, her claim is dismissed. See Mein v. Masonite Corp., 109 Ill. 2d 1, 485 N.E.2d 312, 92 Ill. Dec. 501 (1985). This is a clearly settled question of law, which does not require any additional argument or facts.

 However, as to Mars arguments with respect to dismissal of Counts IV and V, they are rejected. Ours is an adversarial system. Without briefing on these issues by the parties to illuminate the pertinent facts and the law the court cannot give them proper consideration. However, for other reasons set ...

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