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August 17, 1998


The opinion of the court was delivered by: CASTILLO


 Plaintiff Barbara Haswell brought this two-count complaint against defendants Marshall Field & Co. and Dayton Hudson Corporation alleging employment discrimination under Title I of the Americans With Disabilities Act, 42 U.S.C. §§ 12111 et seq. ("ADA"), and intentional infliction of emotional distress ("IIED"). Haswell alleges that the defendants unlawfully terminated her based on a mental impairment that substantially limits one or more of her major life activities. Although Haswell signed a waiver saying that she would not sue the defendants for her termination, Haswell claims that the waiver is invalid because she did not sign it knowingly and voluntarily.

 Currently before the Court is the defendants' motion for summary judgment. Defendants argue that they are entitled to summary judgment because Haswell's contractual release of claims against them is valid, and that even if it were not, Haswell cannot establish an ADA claim as a matter of law. Defendants also attack the IIED claim on the grounds that it is preempted under the Illinois Human Rights Act and, in the alternative, fails on the merits as a matter of law. For the reasons set forth below, the defendant's motion is granted in part and denied in part.


 The following undisputed facts are gleaned from the parties' Local General Rule 12 statements of material facts and accompanying exhibits. *fn1"

 A. Haswell's Background and Her Employment at Marshall Field's

 Barbara Haswell has a global brain impairment with an overall IQ in the Mentally Retarded range. (Pl's Facts P 1). In grade school, Haswell was diagnosed as having a "speech-language disorder" and placed in a Special Education program for the "Educable Mentally Handicapped." (Id. P 2). Despite her education, she cannot perform certain functions such as subtracting, reading and filling out a job application, driving a car, and understanding complex issues. (Id. P 6-14). Haswell's husband is also mentally handicapped, and both depend on their families for help. (Id. P 4).

 In 1970, Haswell began her first job at Marshall Field & Co.'s Old Orchard store. (Pl's Facts P 17). Throughout the years, Haswell's job duties consisted of washing uniforms and linens, bussing tables, washing dishes, making salads, and helping to set up serving lines. (Id.) By June 1994, Haswell had become a "prep cook," preparing salads in the Marketplace Deli of the Old Orchard store. (Id. P 18).

 In June 1994, Marshall Fields hired Joyce Clemens to manage the Marketplace Cafe and the Marketplace Deli at the Old Orchard store. (Id. P 19). Clemens worked with two assistant managers: Gloria Mucha, who oversaw the Deli, and Tracy Kralik, who oversaw the Cafe. (Def. Facts P 6). On January 20, 1995, Haswell received her first-ever negative performance review from her new supervisors, which indicated that she had productivity problems as a prep cook. (Id. P 11). However, Mucha repeatedly counseled and coached Haswell until she was preparing salads at an acceptable rate. (Id. P 12).

 B. Haswell's Transfer from the Deli to the Cafe

 In October 1994, John Kalantonis, a dishwasher in the Cafe, underwent open-heart surgery. After four months of recuperation, Kalantonis returned to his job. (Pl's Facts P 23). However, on January 21, 1996, Marshall Field terminated Kalantonis, creating a vacancy in the Cafe. (Id.) Marshall Fields transferred Haswell from her prep cook position in the Marketplace Deli to the vacant dishwasher position in the Marketplace Cafe. *fn2" (Id. P 27). Joyce Clemens testified that Haswell was the logical choice to fill Kalantonis' position because: (1) Haswell had been filling in as a dishwasher since December 1995; (2) Haswell had previous experience working as a dishwasher; and (3) Clemens was exceeding her labor budget for the Deli and moving Haswell out of the Deli to the Cafe alleviated this problem. (Def. Facts P 15).

 C. Decision to Close the Marketplace Cafe

 On April 26, 1996, Fields announced that the Cafe would close on May 4, 1996, due to its continuing poor financial performance. Ten days after her transfer, Haswell learned that all the employees assigned to the Cafe (herself included) would be terminated effective June 15, 1996. (Pl's Facts P 28). According to Haswell, Clemens was aware of the potential closing months before it was announced; she allegedly told Kalantonis that the restaurant would soon close when she terminated him in January 1996. Clemens also allegedly told Kathy McCarthy, Assistant Store Manager of Human Resources, that she thought the restaurant would close in either July 1996 or January 1997. *fn3" (Id. P 30).

 Immediately after the termination announcement, McCarthy and her assistant, Claudette Stevenson, held one-on-one meetings with each Cafe employee to distribute and discuss separation documents. (Def. Facts P 26). They included the following: (1) an Agreement and Release; (2) a summary of benefits; (3) tax information; (4) a pension estimate; and (5) a card listing the date and time for the individual to either sign the Agreement or decline to sign it. (Id.) Haswell met with McCarthy and received the separation materials. The Agreement and Release stated, in pertinent part, that "in exchange for Marshall Field's having entered into this Agreement, Employee agrees to give up all Employee Claims against Marshall Field's as described above. Employee will not bring any lawsuits or make any other demands against Marshall Field's based on Employee claims." (Id. P 57). In exchange for that promise, Haswell's Agreement and Release provided for a payment of $ 5,865.60, equivalent to 26 weeks of pay. (Id. P 27). Her sign-out date was set for June 11, 1996 at 10:00 a.m. (Id. P 28).

 D. Assistance from Haswell's Sister-in-Law, Sarah Mott

 After Haswell was terminated, her father-in-law, Homer Haswell, contacted Sarah Mott, his daughter, to discuss Haswell's transfer to the Cafe dishroom. (Def. Facts P 33). Mott is an attorney specializing in labor and employment law. (Def. Facts P 31). After talking to Mott, Homer sent her copies of the Agreement that Haswell had received from McCarthy. *fn4" (Id.) After making some preliminary phone calls, Mott was left without an explanation as to why Haswell was transferred to the dishroom. *fn5" (Pl's Facts P 32). Therefore, Mott had Haswell send her additional information, such as pay stubs. (Def. Facts P 34). Mott knew that Haswell had received a definite date on which she either had to sign the Agreement or decline to sign it. (Id. P 35).

 Approximately one week after Mott received the information on Haswell's termination, she called McCarthy and told her that Haswell's payout was incorrect; it should have been calculated on the basis of a 37.5-hour work week schedule rather than a 30-hour weekly schedule. Mott noted that Haswell had generally worked 37.5 hours per week, and had worked a 30-hour schedule only the 10 days that she worked as a dishwasher. (Id. P 36).

 Mott also spoke with Tom Morrisroe, Regional Human Resource Manager, and told him that Haswell's payout amount was miscalculated. (Id. P 37). Betty Kindness, Manager of Policy Planning and Employee Relations for the Department Store Division of Dayton Hudson Corporation, recalculated Haswell's payout on the basis of a 37.5-hour schedule and sent McCarthy a corrected version of the Agreement. (Id. P 49). This corrected version provided for a payout of $ 7,478.25, in contrast to the original version calculated on a 30-hour basis, which provided for a payout of $ 5,865.60. (Id.)

 Following her conversation with Morrisroe, Mott sent a letter on behalf of Haswell to Patricia Dirks, Senior Vice President of Human Resources for the Department Store Division of Dayton Hudson. (Id. P 38). This letter alleged disability discrimination based on Haswell's abrupt termination, and requested corporate involvement in either securing Haswell another job at Marshall Fields or giving Haswell her old job back in the Deli. (Id.) Mott never spoke to Dirks, however. (Id. P 39).

 After the conversation with Mott in late April, McCarthy contacted Morrisroe to discuss Haswell's abrupt termination. (Id. P 45). Morrisroe asked McCarthy to investigate the circumstances surrounding Haswell's transfer and to look for other possible positions for Haswell within the company. (Id.) McCarthy contacted John Banks and learned about an available 30-hour per week position in the food services area at the Marshall Field's State Street Store in Chicago, Illinois. (Id. P 46). McCarthy told Haswell that if she was interested in the job at the State Street Store, she needed to fill out a request for transfer form. (Id. P 49). However, Haswell did not fill out the application to transfer to the State Street Store because she had never traveled downtown by herself and doing so would have presented a safety problem. (Pl's Add'l Facts P 47).

 Approximately one week before Haswell's sign-out date, Mott received a voicemail from Paul Strickland, Director of Employee Relations for the Department Store Division of Dayton Hudson, stating that he would investigate the termination and would make sure that Haswell retained her job. (Id.) Mott left Strickland a return voicemail stating that she did not want Haswell to attend the sign-out meeting by herself. Then she told Haswell the meeting was canceled. (Id. P 40, 41).

 E. Haswell's Meeting with McCarthy

 On June 11, 1996, approximately 45 days after she was given the separation materials, Haswell nevertheless met with McCarthy. (Def. Facts P 51). At this meeting, McCarthy explained to Haswell that she needed to sign the Agreement because McCarthy needed to send the signed agreements to Dayton Hudson headquarters in Minnesota. (Id. P 52). Although Haswell indicated to McCarthy that she did not understand the Agreement, McCarthy insisted that Haswell should sign it. (Id.) Haswell relented and signed the Agreement. (Pl's Add'l Facts P 52).

 Mott was not called to this meeting. (Pl's Facts P 33). Haswell showed a copy of the Agreement to Homer Haswell about a week after it ...

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