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KARIOTIS v. NAVISTAR INT'L TRANSP. CORP.

January 28, 1997

KATHLEEN A. KARIOTIS, individually and as best friend of PETER KARIOTIS, a minor, and ANGELO KARIOTIS, Plaintiffs,
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORP., Defendant.



The opinion of the court was delivered by: ALESIA

 This matter is before the Court on cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons discussed hereafter, Defendant's motion is granted in part and denied in part; Plaintiffs' motion is denied.

 I. BACKGROUND

 Plaintiff Kathleen Kariotis had been employed with Defendant Navistar International Transportation Corporation ("Navistar") (and its predecessor International Harvester) since 1984. Kariotis began her employment as a secretary and eventually became an executive assistant.

 On March 21, 1995, Kariotis commenced disability leave so that she could undergo and recuperate from a knee replacement operation. At that time, Kariotis' treating physician, E. Thomas Marquardt, indicated that Kariotis would be able to return to work on approximately June 1, 1995. On May, 18, 1995, Kariotis' return to work date was extended to June 19, 1995. On June 12, 1995, Kariotis' return to work date was extended to June 27, 1995. On June 26, 1995, Kariotis' return to work date was extended to July 11, 1995.

 During the prior year, an unsigned letter received by Navistar management accused Kariotis of unethical behavior. An investigation ensued. Although irregularities remained unresolved, no conclusive evidence to substantiate the accusations in the letter was discovered.

 Suspicious of the claimed severity of Kariotis' injury, William Vlcek -- manager of human resources -- discussed the situation with his superior, Robert Goldie -- director of business and people processes. Consequently, Goldie and Vlcek decided to pursue undercover surveillance of Kariotis. Navistar hired In Photo Surveillance to conduct the undercover surveillance of Kariotis.

 In Photo Surveillance conducted an undercover videotaped surveillance of Kariotis on June 17 and 20, 1995. A report summarizes the surveillance as follows:

 
We have . . . obtained videotape of your subject walking, driving a vehicle, getting into a vehicle, getting into and out of a golf cart, sweeping, and pushing a grocery cart. We note that the stride in one leg did not appear to be the same as the stride in the other.
 
Apart from this, however, she does not appear to be physically handicapped or disabled, nor does she wear any visible brace or cast. We note that she does not utilize the support of a cane while moving about.

 In Photo Surveillance conducted further surveillance on June 26, 1995. That report summarized the surveillance as follows:

 
We . . . have obtained approximately 17 minutes of videotape of your subject walking, driving, entering and exiting a vehicle, sitting and bending. We note that the stride in one leg did not appear to be the same as the stride in the other. Apart from this however, she does not appear to be physically handicapped or disabled, nor does she wear any visible brace or cast. We note that she does not utilize the support of a cane while moving about.

 On June 30, 1995, Kariotis met with Vlcek at Navistar's offices. Kariotis was unaware of the undercover surveillance. Vlcek's notes indicate that Kariotis stated that before her second knee manipulation on June 28, 1995, she could not shop, grocery shop, or walk straight. Kariotis disputes Vlcek's notes -- she claims that she never said such things.

 On the same day, following the meeting between Vlcek and Kariotis, several Navistar management personnel -- including Goldie and Vlcek -- met to discuss Kariotis' situation. A videotape was played at the meeting.

 On July 6, 1995, Kariotis was terminated. The termination letter indicates that Kariotis was terminated for cause, which includes, but may not be limited to, fraud, i.e., claiming disability benefits for which she was not eligible since June 17, 1995.

 Kariotis filed a complaint in this Court alleging violations of the Americans With Disabilities Act ("ADA") 42 U.S.C. § 12101, et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq.; the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. § 1161, et seq.; the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq.; and the Illinois Health Insurance Claim Filing Act, 820 ILCS 45. Additionally, the complaint contains a claim for negligent infliction of emotional distress.

 This matter is now before the Court on cross-motions for summary judgment.

 Under FED. R. CIV. P. 56(c), summary judgment shall be granted if the record shows 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." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir. 1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Once the moving ...


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