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ULATOWSKI v. JOHN STERLING CORPORATION

January 7, 2005.

CINDY ULATOWSKI, Plaintiff,
v.
JOHN STERLING CORPORATION, et al., Defendants.



The opinion of the court was delivered by: SUZANNE CONLON, District Judge

MEMORANDUM OPINION AND ORDER

Cindy Ulatowski ("Ulatowski") sues John Sterling Corporation ("JSC"), Amerisure Mutual Insurance Company ("Amerisure"), Wayne Stolarik ("Stolarik"), Debra Gaertner ("Gaertner"), Steven Jarabek ("Jarabek"), and Charles Carroll IV ("Carroll") for discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., (Count I), intentional infliction of emotional distress (Count II), retaliatory discharge (Count III), fraudulent conspiracy to coerce Ulatowski to abandon rights (Count IV), and constructive fraud and conspiracy to commit fraud (Count V). Defendants Stolarik, Gaertner, Jarabek and Carroll have been dismissed. See Minute Order 7/1/04, Dkt. No. 50-1; Minute Order 7/13/04, Dkt. No. 53-1; Minute Order 7/30/04, Dkt. No. 62-1; Minute Order 8/17/05, Dkt. No. 71-1. In addition, the court dismissed Counts II, III, IV and V against JSC and Counts I, III, IV and V against Amerisure. See Ulatowski v. John Sterling Corp., et al., No. 03 C 8847, 2004 U.S. Dist. LEXIS 11181, *8-22 (N.D. Ill. June 16, 2004); see also Minute Order 7/13/04, Dkt. No. 53-1. Accordingly, Count I is the sole remaining claim against JSC, and Count II is the sole remaining claim against Amerisure. Id. JSC and Amerisure move for summary judgment under Fed.R.Civ.P. 56. BACKGROUND

All facts are undisputed unless otherwise noted.*fn1 JSC manufactures home hardware products, such as closet poles and towel racks. JSC Facts at ¶ 7. Amerisure provides insurance coverage to employers for workers' compensation, and provided workers' compensation coverage to JSC at all relevant times. Id. at ¶¶ 8-9.

  Ulatowski began employment with JSC on March 27, 2000 as an assembler in the tube mill department. Id. at ¶¶ 10-11. The tube mill department has two production lines, the Doboy line and the Eastey line. Id. at ¶ 20. The Eastey line operation involves assembling and packaging of steel poles. Id. at ¶ 23. The Doboy line operation involves placing aluminum tracks and closet rods onto a moving conveyor. Id. at ¶ 26. The Eastey line runs at a faster pace than the Doboy line and requires different movement of an employee's hands and wrists. Id. at ¶ 24. Both production lines require repetitive hand movements. Id. at ¶ 12; Ulatowski Facts at ¶¶ 16, 24.

  Ulatowski initially performed production duties on the Eastey line; she was assigned to the Doboy line in June 2000 after she complained of wrist pain. JSC Facts at ¶¶ 16-17; Ulatowski Facts at ¶¶ 31, 33. Ulatowski worked on the Doboy line from June 2000 to January 2002, when she was again reassigned to the Eastey line. Ulatowski Facts at ¶¶ 34, 40. On February 11, 2002, Ulatowski complained of wrist pain to Scott Braden, her direct supervisor. Id. at ¶ 41; JSC Facts at ¶ 36. Braden removed Ulatowski from the Eastey line and assigned her to work in the designer brackets division, packaging storage hangers. Ulatowski Facts at ¶ 42-43; JSC Facts at ¶ 37. On February 13, 2002, Ulatowski told Debra Gaertner, JSC's human resources assistant, that her wrists were sore and swollen and she needed to see a physician. Ulatowski Facts at ¶ 44; JSC Facts at ¶ 38. That same day, Gaertner scheduled a doctor's appointment for Ulatowski and she saw the doctor. JSC Facts at ¶¶ 40-41. Following her appointment, Ulatowski provided JSC with work restrictions, effective through February 19, indicating she was to wear a splint on her left hand at home and work; she was not to perform work with her right hand that would normally be performed with both hands. Id. at ¶ 43. On February 14, JSC reported Ulatowski's wrist injury to Amerisure. Id. at ¶ 42; Amerisure Facts at ¶ 5. Ulatowski received workers' compensation benefits for her February 14, 2002 carpel tunnel injury. Amerisure Facts at ¶ 6.

  Ulatowski's work restrictions prevented her from working on either the Doboy or Eastey lines. JSC Facts at ¶ 45. From February 13-18, Ulatowski was reassigned light-duty work in designer brackets. Ulatowski Facts at ¶ 51. On February 19, Ulatowski provided JSC with a second medical work restriction indicating she was not to perform repetitive motions with either her left or right hand and the restrictions would be in effect until March 8, 2002. Id. at ¶¶ 53-58; JSC Facts at ¶ 47. On February 21, Ulatowski was assigned light-duty office work and the task of reading safety books, manuals, and other employment related documents. Ulatowski Facts at ¶¶ 59-60; JSC Facts at ¶¶ 49. The light-duty office work was temporary, and not a regular full-time JSC position. JSC Facts at ¶ 53. From February 21, 2002 through August 25, 2003, Ulatowski did not perform any job duties within the tube mill department. Id. at ¶ 51.

  In March 2002, Ulatowski sought continued treatment for her carpal tunnel syndrome; her physicians maintained her condition was work-related, ordered she not perform repetitive hand and arm movements and continue to wear splints, and recommended surgery. Ulatowski Facts at ¶¶ 66-70. On May 3, 2002, Ulatowski had carpal tunnel release surgery on her right wrist. Id. at ¶ 71; JSC Facts at ¶ 54. Following surgery, Ulatowski provided JSC with additional medical work restrictions indicating she could only perform light finger tasks. JSC Facts at ¶ 55. The restrictions were updated on June 13 to provide she could only perform office tasks with no heavy lifting or repetitive activities. Id. Ulatowski's work restrictions made her unable to perform the essential functions of her normal production job on either the Eastey or Doboy lines, or any other line work within her department. Id. at ¶ 56.

  On July 18, 2002, Gaertner and Wayne Stolarik, JSC's human resources manager, approached Ulatowski, showed her four specific tasks, and asked whether she could perform the tasks and return to the factory floor. Ulatowski Facts at ¶¶ 78-79. Ulatowski said she could not perform the tasks, stressed that both of her hands were in splints and that her right wrist was still swollen from surgery. Id. at ¶ 80-82. Stolarik informed Ulatowski that he and Gaertner were meeting with Dr. Grossman, Ulatowski's treating physician, to determine whether she could perform certain light-duty finger tasks within her work restrictions. Id. at ¶ 83; JSC Facts at ¶ 57. On July 18, Stolarik and Gaertner met with Dr. Grossman. JSC Facts at ¶ 57. Stolarik showed Dr. Grossman the four assembly tasks JSC desired Ulatowski to perform, but did not inform him of the speed at which she would be required to perform the assembly tasks. Id. at ¶ 58; Ulatowski Facts at ¶ 91. JSC contends Ulatowski could have performed the tasks at any speed she thought appropriate and there was no set rate at which she was required to perform. JSC Facts at ¶ 59. In a July 18 report, Dr. Grossman stated:
An office visit with representatives from her employer was conducted. The question revolves around whether or not she can be released to slightly more aggressive tasks. The representatives from her employers [sic] inquire if light duty tasks involving no significant weight and use of the fingers only could be performed. I observed the tasks that they wish to include in her repertoire. They are easily accomplished with finger motion without wrist motion. They are exceptionally light duty. Additionally, both the individuals from her employer represented to me that the patient indicated that she could perform these tasks. Accordingly, will liberalize her activities to include those.
Ulatowski Facts at ¶ 92. Dr. Grossman further described Ulatowski's work restrictions as "finger tasks only as tolerated until next eval. on 8-8-02." Id. at ¶ 93. Stolarik informed Ulatowski that Dr. Grossman indicated she could perform the four tasks and that she was to begin the tasks on July 22, 2002, JSC Facts at ¶ 60. Ulatowski refused to perform the assigned finger tasks and stated that she did not want to mess up her hands. Id. at ¶ 62; Ulatowski Facts at ¶ 95.

  Ulatowski worked in the assembly small parts department from July 22 until shortly before her second surgery for carpal tunnel syndrome on September 6, 2002. Ulatowski Facts at ¶ 103; JSC Facts at ¶ 68. Following surgery, Ulatowski provided JSC with medical work restrictions indicating she was to wear a splint on her left hand and could only use her left hand for pencil, paper and telephone tasks of trivial weight. JSC Facts at ¶ 69. In addition, her work restrictions with regard to her right hand were to continue. Id. Ulatowski's work restrictions made her unable to perform the essential functions of her normal production job of working on either the Eastey or Doboy lines, or any other line work within her department. Id. at ¶ 70; Ulatowski Facts at ¶ 118. JSC assigned Ulatowski light-duty office work consisting in part of: (1) once a week placing vendor checks in envelopes and filing them; (2) filing prints and drawings for the engineering department approximately two hours per day; (3) cutting signs and sign paks for the marketing department approximately two hours per day; and (4) matching freight bills for approximately two hours per week. JSC Facts at ¶ 63. The light-duty office work was a combination of tasks from various office staff jobs and was not a full-time or permanent position. Id. at ¶ 64. Ulatowski understood that the light-duty office work assigned to her following her second surgery was only temporary in nature, and was not a permanent reassignment to a new or different job. Id. at ¶ 71.

  Amerisure received and reviewed Ulatowski's medical records. Ulatowski Facts at ¶ 120. Steve Jarabek, an Amerisure claims adjuster, knew as of January 10, 2003 that one of Ulatowski's physicians recommended she be evaluated by anesthesiologists to determine if treatment with stellate ganglion blocks was appropriate. Id. at ¶ 121. Jarabek knew the stellate ganglion block treatment was in conjunction with Ulatowski's continued treatment for carpal tunnel syndrome. Id. at ¶ 126. Ulatowski's physician, Dr. Shaku Chabbria, attests the ganglion block treatment was part of Ulatowski's overall treatment for carpal tunnel syndrome. Id. at ¶ 122. On January 6, 2003, Ulatowski had an MRI of her cervical spine. Amerisure Facts at ¶ 8. On or around February 7, 2003, Jarabek determined that the back treatment was not related to the carpal tunnel claim, based in part on "simple logic, if you've got a repetitive motion with your wrists, how would that be related to your back?" Ulatowski Facts at ¶ 129; Ulatowski Appendix, Vol. III, Ex. 14 at 50-51. Jarabek does not recall if he spoke to one of Ulatowski's physicians to discern the reason for cervical treatment, or if he knew anything about the reasons for medical cervical treatment, when he made the decision to deny compensation. Id. at ¶¶ 138-39 and Ex. 14 at 54.

  On February 13, 2003, Ulatowski was examined by Dr. Chabbria. Amerisure Facts at ¶ 9. Dr. Chabbria attests the cervical investigation and the associated ganglion block treatments were aimed at excluding a possible cause of Ulatowski's pain. Ulatowski Facts at ¶ 123. Dr. Chabbria noted that:
[Ulatowski] who does factory work has been having multiple problems. She was evaluated by me because of symptoms in the right arm. Workup was done to see whether she has epicondylitis or carpal tunnel syndrome. Carpal tunnel syndrome was not significant. As she continues to have pain, it was felt that she should have a MRI to be sure that the symptoms are not coming from the cervical spine. MRI was done and some bulging discs have been found. She had a nerve block for the same . . . I think that the patient's symptoms in the right arm have started after a work-related injury, and while she does not have any significant neck pain, her symptoms well could be coming from the neck accounting for her symptoms in the right arm.
Amerisure Facts at Ex. K.

  On February 25, 2003, Amerisure assigned Ulatowski's workers' compensation case to AACM for case management. Id. at ¶ 10; JSC Facts at ¶ 72. AACM provides case management services for insurance companies and third party administrators. JSC Facts at ¶ 73. On March 12, 2003, Amerisure indicated its intention to obtain an Independent Medical Exam ("IME") regarding Ulatowski's medical condition and her ability to return to work. Id. at ¶ 74. IME's are used to determine the scope of work injury under the Illinois Workman's Compensation Act. Amerisure Facts at ¶ 10. AACM, on Amerisure's behalf, selected Dr. Carroll, an experienced orthopedic surgeon with carpal tunnel syndrome experience, to perform the IME. Id.; JSC Facts at ¶ 76. At Amerisure's request, AACM arranged for Dr. Carroll to have a written description of Ulatowski's normal job duties and the light duties she was performing, as well as a videotape for Dr. Carroll's review depicting Ulatowski's normal job duties. JSC Facts at ¶¶ 77-78. It is routine for a videotape of job duties to be provided to a physician performing an IME for workers' compensation purposes. Id. at ¶ 79. It is also not unusual for the videotape to depict a non-injured employee performing the job duties that the injured employee performed prior to injury. Id. at ¶ 80. In response to AACM's request for the videotape, Scott Laskwoski of JSC videotaped an employee performing normal job duties on the Doboy line. Id. at ¶ 81. JSC videotaped the Doboy line because Ulatowski preferred working on the Doboy line over the Eastey line; work on the Doboy line was slower and easier on an employee's wrists. Id. at ¶ 82. JSC also provided Dr. Carroll with a written description of Ulatowski's job duties. Id. at ¶ 83. The parties dispute the accuracy of the written job description. Id. at ¶ 84; Ulatowski Facts at ¶ 167.

  On April 11, 2003, Dr. Carroll performed an IME on Ulatowski. JSC Facts at ¶ 85. Dr. Carroll reviewed Ulatowski's medical history including a functional capacity evaluation, medical records of Dr. Chabbria, electrodiagnostic studies, clinical notes, and the job description prior to his examination of Ulatowski. Amerisure Facts at ¶ 11 and Ex. N; see also Ulatowski Appendix, Vol. II, Ex. 7. Dr. Carroll opined that Ulatowski was at maximum recovery for carpal tunnel syndrome, she could return to a medium level of work, and should vary her job tasks. Id. In addition, Dr. Carroll opined Ulatowski had cervical disc disease, that repetitive activities would not cause or aggravate a degenerative condition in her cervical spine, that the cervical disc disease was a contributing factor to Ulatowski's residual symptoms, and that the cervical spine treatment was not related to the February 2002 injury. Id. Finally, Dr. Carroll concluded Ulatowski could return to work on the Doboy production line as long as she varied her tasks, but he cautioned that her return could be complicated by her subjective complaints. Id.; JSC Facts at ¶ 86. Dr. Carroll received the videotape of the Doboy line production on May 3, 2003, after his April 11 consultation. The videotape did not change his opinion that was based on the written job description. Amerisure Facts at ¶ 11; Ulatowski Facts at ¶ 166. Based on the IME reports, Amerisure informed JSC that Ulatowski's cervical problems were not related to her workers' compensation carpal tunnel claim, no further benefits would be paid for carpal tunnel syndrome treatment, and no benefits would be paid for cervical spine treatment. Amerisure Facts at ¶ 12; JSC Facts at ¶ 87. Following the IME, Ulatowski continued to provide JSC with notification that she could not perform the essential functions of her production line job. JSC Facts at ¶ 88. In June 2003, Jean Vyanck, who oversaw JSC's office work, informed Stolarik she was running out of office work for Ulatowski to perform. Id. at ¶ 89. Stolarik informed Ulatowski there was no further work for her, because her current work restrictions still prevented her from performing the essential functions of her production line job and there was no more temporary office work for her. Id. at ¶ 90. JSC told Ulatowski she needed to take a medical leave of absence under the Family and Medical Leave Act ("FMLA"). Id. JSC placed Ulatowski on FMLA leave on June 2, 2003 to give her further time to recover and return to her normal production job duties in the tube mill department. Id. at ¶ 91. JSC provided Ulatowski with twelve weeks of FMLA medical leave, which began on June 2, 2003 and ended August 25, 2003. Id. at ¶ 92.

  On August 19, 2003, JSC sent Ulatowski a letter informing her that FMLA leave would expire on August 25, 2003, when she was required to return to her production job on the Doboy line or other B level operations. Id. at ¶ 93. On August 22, Ulatowski delivered a letter to JSC stating she was still unable to perform job duties as a Doboy operator and would not return to work on August 25. Id. at ¶ 95. In her letter, Ulatowski requested ...


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