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April 29, 2003


The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge


In this action filed by plaintiff, Thomas Larimer ("Larimer"), alleging discrimination based on association in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (Count I), and termination in violation of § 510 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. (Count II), defendant, International Business Machines, Corporation ("IBM"), has moved under Rule 56, Fed.R. Civ. P., for summary judgment. The court has jurisdiction over the claims pursuant to 28 U.S.C. § 1331, 29 U.S.C. § 1132 (a)(3) and 42 U.S.C. § 2000e-5 (f). For the reasons set forth below, the motion for summary judgment is granted.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


On August 17, 2001, Larimer was fired from his employment at IBM. Previously, on May 11, 2001, Larimer's wife, Juliann, gave birth to Larimer's twin daughters, Emelia and Sarah Larimer, who were born prematurely and suffered from numerous medical conditions listed below. Larimer maintains that his firing was based on his children's alleged disability in violation of the ADA. In addition, Larimer alleges that he was terminated because he filed health care claims on behalf of his daughters, who were covered under the health plan IBM provided to Larimer, in violation of § 510 of ERISA.

Larimer's Employment at IBM

The Lotus Software Sales unit of IBM employed Larimer as a Senior Sales Specialist in Chicago from August 28, 2000 through August 17, 2001. (Def. L.R. 56.1 ¶ 4.) Prior to being hired by IBM, Larimer held a variety of other sales positions at companies such as Midwest Visual Communications, Tandberg, and Lucent Technologies. (Def. L.R. 56.1 ¶ 7.) Larimer was hired by IBM based on a favorable interview process, checked references, and a comparison to other individuals interviewed for the position. (Pl. L.R. 56.1 ¶ 1.) As a Senior Sales Specialist, Larimer was assigned to specific accounts and was responsible for selling Lotus software messaging products and software knowledge management products to those accounts. (Def. L.R. 56.1 ¶ 8.)

At the time of his hire until sometime in the beginning of 2001, Larimer was supervised by District Manager Mary Freeman ("Freeman"). (Def. L.R. 56.1 ¶ 9.) Larimer and Freeman had a good working relationship and Freeman had no bad experiences or exchanges with Larimer while she managed him or afterwards. (Pl. L.R. 56.1 ¶ 2.)

From August through November 2000, Larimer was in an orientation period at IBM during which, regardless of his productivity, he was paid as if he met his sales goals. (Def. L.R. 56.1 ¶ 10.) Beginning in December 2000, Larimer was subject to real sales goals that affected his compensation. (Def. L.R. 56.1 ¶ 10.) Larimer's sales goals were broken into two parts — a service component and a product component. (Id.) Larimer did not believe that he met the services part of his goal in December 2000. (Id.) Larimer received his first performance evaluation (referred to as his Personal Business Commitments ("PBC")), for the period ending December 31, 2000. (Def. L.R. 56.1 ¶ 13.) He received an overall rating of "[a]chieved some/most commitments" — a 3 on a scale of 1 to 4 with 1 being the highest. (Id.) This PBC, which was given by Freeman, stated that Larimer had fallen just short of his December goals. (Id.) Freeman believed that Larimer was having difficulty making the transition from his work at Lucent to his work at IBM and demonstrated frustration in coming up to speed with the technologies. (Def. L.R. 56.1 ¶ 14.) Freeman also believed that Larimer was "not taking enough initiatives of his own in aggressively engaging with his account set." (Pl. Resp. to Def. L.R. 56.1 ¶ 14.)

In early 2001, John Freimark ("Freimark") replaced Freeman as Larimer's supervisor following Freeman's promotion into the position of acting and then Regional Director of the MidWest West Sales Region.*fn1 (Def. L.R. 56.1 ¶ 9.) Freimark "picked" Larimer to be on his sales team under his management because Freimark knew the accounts Larimer would be covering based on Freimark's prior sales experience and because he knew Larimer's wife, Juliann, also an IBM employee, and believed that she would be of assistance to Larimer. (Def. L.R. 56.1 ¶ 16.) Larimer had previously gotten along well with Freimark when both held the position of sales representative and Larimer welcomed the change in supervision. (Def. L.R. 56.1 ¶¶ 12, 16.)

Larimer believed that he and other salespeople received more attention from Freimark than they had received from Freeman. (Def. L.R. 56.1 ¶ 18.) Larimer testified that he and Freimark got along "okay" when he began reporting to Freimark and that there "was always a position of, again, critiquing successes and failures. . . ." (Def. L.R. 56.1 ¶ 20.) On January 19, 2001, Larimer provided Freimark with his initial first quarter sales forecast. (Def. L.R. 56.1 ¶ 21.) Larimer set forth his goals of earning $200,000 in 2001, achieving 200% of his sales quota in 2001 and 100% of his quota by July 2001, understanding and becoming proficient in communicating the benefits of all Lotus products, and understanding the internal tools and processes of Lotus/IBM.*fn2 (Def. L.R. 56.1 ¶ 21.) As of January 2001, Larimer admitted that he was still working toward understanding the internal tools and processes of IBM as many had changed throughout his employment and that he was still learning about new products that were offered. (Id.; Pl. Resp. to Def. L.R. 56.1 ¶ 21.)

On or about April 4, 2001, Larimer attended a regional sales meeting in Milwaukee, Wisconsin. (Def. L.R. 56.1 ¶ 24.) In attendance were members of Larimer's sales team (including managers Freeman and Freimark) as well as other managers and sales engineers who were involved in Larimer's team business. (Id.) Larimer reviewed his first quarter bookings and presented an account plan. (Id.) He admitted that at this time he was not at the point of reaching his goals. (Def. L.R. 56.1 ¶ 25.) Larimer had, in fact, changed his goals in his April 2001 presentation from meeting 200% of his assigned quota to meeting only 150% of the quota. (Def. L.R. 56.1 ¶ 26.)

After the April 4 presentation, Freimark realized that Larimer did not seem to understand what the critical business issues were for his accounts, why the customer was buying the product, what the value was that he was trying to sell, and what vision he was creating for the customer. (Def. L.R. 56.1 ¶ 26.) Freeman also realized after Larimer's presentation that his performance was not where it needed to be. (Id.) Following the April 4 meeting, Freimark began having weekly telephone conversations with Larimer to discuss Larimer's sales opportunities and strategies. (Def. L.R. 56.1 ¶ 28.) Freimark also established a buddy system whereby sales specialists Greg Fancher ("Fancher") and Vince Peseski ("Peseski") provided additional guidance and informal assistance to Larimer. (Def. L.R. 56.1 ¶ 29.)

On April 16, 2001, Freimark sent an e-mail to Larimer indicating that he had not seen any of Larimer's expense reports. (Def. L.R. 56.1 ¶ 31.) Larimer responded on April 17, 2001, saying that he "need[ed] to get caught-up" and that he would work on them that night. (Id.) Larimer did not complete the reports until the summer of 2001, which Larimer attributed to a new computer system being implemented. (Pl. Resp. to Def. L.R. 56.1 ¶ 31.)

In late May or early June 2001, Larimer noticed a "definite change in tone and attitude in one case specifically" with regard to his relationship with Freimark. (Def. L.R. 56.1 ¶ 33.) Freimark had become interested in a particular opportunity at Kemper Insurance, one of Larimer's accounts. (Id.) Freimark was "very interested" in Larimer's quote of some software to Kemper and was critical of Larimer for delivering the quote on the Friday before Memorial Day to a lower ranking individual at Kemper. (Def. L.R. 56.1 ¶ 34.)

On June 21, 2001, Freimark held a meeting with Larimer in Chicago. At the meeting Larimer informed Freimark that he had just received a verbal (not written) acceptance of a sale that he had been "chasing" at Aon, although he was still forecasting it as a ten percent opportunity. (Def. L.R. 56.1 ¶ 37.) Larimer believed that approximately $400,000 of the anticipated sale would come from the sale of licenses and that an additional $100,000 of the anticipated sale would come from subscriptions. (Id.) Freimark was critical of Larimer's performance relating to the Aon account. (Def. L.R. 56.1 ¶ 38.) Specifically, Freimark had been coaching Larimer for months on how to turn what amounted to a compliance sale (i.e., working with IBM's compliance team to legally require Aon to buy a sufficient number of licenses for the product to cover Aon's use of the product) into a situation in which Larimer could wrap compliance into the sale of additional products and services and utilize the solution selling model, which Larimer did not do. (Id.) Larimer also recalls Freimark being critical in a negative manner of Larimer's handling of opportunities at ABN-AMRO. (Def. L.R. 56.1 ¶ 39.)

At this meeting Larimer recalls further criticism from Freimark, including that Freimark criticized Larimer for "selling on price," i.e., selling the product as cheaply as possible rather than selling the quality of the product, that Larimer was "spending [his] time looking through the company books for what had sold and taking credit for it," and for not being able to sell product solutions to his customers. (Def. L.R. 56.1 ¶ 41.) Freimark went on to explain to Larimer that he was being offered the opportunity to leave IBM with a separation package or be placed on a "performance plan" because Larimer had a lack of "pipeline" (i.e., a lack of a pipeline of prospective sales), and did not have access to people in authority at his accounts. (Def. L.R. 56.1 ¶ 40.) Specifically, Larimer was offered the choice between a severance package, which offered him the opportunity to receive a satisfactory rating, outplacement services, two months of salary, and the continuation of health insurance for six months, or a performance plan which Freimark informed Larimer he believed to be "not doable." (Def. L.R. 56.1 ¶¶ 43, 45.) Larimer had 30 days to decide which option to take, and understood that if he accepted the plan option and did not meet its requirements, his employment would be terminated. (Def. L.R. 56.1 ¶¶ 44, 45.) At this meeting, Freimark stated that he knew that health insurance was important for Larimer, and Larimer took this to mean that Freimark was implying that the severance package would best meet his health coverage concerns. (Def. L.R. 56.1 ¶ 46.)

During the 30-day period in which Larimer had to consider the separation agreement, he was placed on a "pre-performance" plan. (Def. L.R. 56.1 ¶ 48.) Larimer believed that there were no goals under this pre-performance plan that were impossible to meet. (Id.) Moreover, Larimer submitted, with the exception of one week, completed forms on a weekly basis which related to his various accounts. (Def. L.R. 56.1 ¶ 49.) Larimer believes that he fulfilled his goals under the pre-performance plan. (Id.)

At the end of the 30-day period, Larimer informed IBM's Human Resources department that he was not going to accept the separation agreement and that he was going to try the performance plan. (Def. L.R. 56.1 ¶ 51.) Larimer stated that he decided to not accept the separation plan because he believed that he was closing in on some opportunities he was pursuing as well as meeting Freimark's specific requirements. (Id.)

On July 25, 2001, Larimer requested two weeks of parenting leave. (Pl. L.R. 56.1 ¶ 17.) IBM denied the request for a two-week leave and instead allowed one week of parenting leave. (Def. Resp. to Pl. L.R. 56.1 ¶ 18.) During this leave, Larimer was required to conduct business, meet his performance plan requirements, and was constantly contacted by Freimark and others to attend IBM business. (Pl. L.R. 56.1 ¶ 19.) At ...

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