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Storch v. West Town Refrigeration Corp.

July 31, 2006


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Leanne Storch ("Storch" or "Plaintiff") was an employee of West Town Refrigeration Corp. ("West Town") until her supervisor, Raymond C. Fiedler ("Fiedler"), terminated her on May 12, 2003, during an alleged reorganization of the department in which Plaintiff worked. Plaintiff, who was diagnosed with idiopathic pulmonary fibrosis ("IPF") in January 2003, brought the present action against West Town, Fiedler, and Reedy Industries, Inc. ("Reedy") (collectively "Defendants") under the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12101, et seq., ("Count I") contending that the real reason Defendants terminated her was because of her IPF condition. Plaintiff also brought an action against Defendants for defamation per se, ("Count II")stemming from statements Fiedler allegedly told other West Town employees about Plaintiff that imputed an inability of Plaintiff to perform her job.

Defendants have moved for summary judgment on both counts. Because Plaintiff cannot show that she was disabled under the ADA at the time of her termination from West Town, Defendants' motion for summary judgment on Count I is granted. Because Fiedler's alleged statements are inadmissible hearsay, and because Plaintiff has produced no admissible evidence to support the allegation that the statements were ever uttered, Defendants' motion for summary judgment on Count II also is granted.


Storch was an employee of West Town, a company located in Oak Park, Illinois. (Defs.' 56.1 ¶¶ 2, 5.) West Town is a corporation that provides heating and air conditioning services. (Id. at ¶ 2.) Reedy is a Glenview, Illinois-based corporation that issues the West Town company policy memo, which provides a guide for the practices and procedures of West Town. (Pltf.'s 56.1(b)(3)(B) ¶ 22.) William P. Reedy is the president of both Reedy and West Town. (Id. at ¶ 23.)

Storch's Employment

Storch began working at West Town in December 1998. (Id. at ¶ 6.) Her job included answering customer phone calls, processing work orders, providing clerical assistance, keeping track of accounts receivable, typing up sales contracts, arranging for technicians to provide service to customers, and arranging for air filter changes. (Id. at ¶ 12.) Storch had to prepare purchase orders and make records of the use of the air filters, ensuring that technicians at customer locations had the correct type and number of filters. (Id. at ¶ 13.)

A former employee who worked with Storch from December 1998 through September 2000 described Storch as "an excellent and conscientious employee." (Waller Decl., at ¶¶ 4, 8.)

He said that Storch properly ordered filters well in advance of maintenance inspections, and he never heard any supervisor of Storch reprimand her for her job performance. (Id. at ¶¶ 6, 7.)

However, another West Town employee disagrees with that assessment. West Town Sales Representative Charles Caporale claims that Storch used the company phone for personal reasons during work time, failed to properly order filters for customers, and failed to promptly type customer proposals or timely process work orders. (Caporale Decl., at ¶¶ 4, 5.) Caporale stated that he repeatedly counseled Storch about her alleged failure to type timely the proposals and that Storch failed to improve her performance. (Id.) Another employee stated that Storch frequently left her workstation to socialize with West Town technicians, walked off the job on Fridays without notice, and frequently used West Town computers for personal reasons. (Gnoth Decl., at ¶ 5.)

Defendants claim that Plaintiff's alleged failures on the job led to problems for West Town technicians. (Defs.' 56.1 ¶ 17.) Defendants say that Storch misplaced lists of filters she needed to order for clients. (Id.) They also claim she failed to arrange properly changes of air filters on a timely basis. (Id. at ¶ 16.) Storch denies the claims. (Pltf.'s Resp. ¶¶ 16, 17.) West Town technicians who claimed that Storch would misplace their lists say that they experienced no further problems with filter orders after Storch was terminated. (Defs.' 56.1 ¶ 18.)

Nevertheless, Storch did receive several raises during her employment at West Town, although each year the amount of the raise decreased. (Lichtenberger Decl., at ¶ 3.) For example, Storch received a 5.5 percent raise from West Town in 1999, a 4 percent raise in 2000, a 3 percent raise in 2001, and a 2 percent raise in 2002-her final full year of employment with West Town. (Id.) She also received year-end bonuses, beginning with an $800 bonus in 1999, which increased by $100 each year, up to $1000 in 2001. (Id. at ¶ 4.) In 2002, Storch's bonus decreased by $100 to $900. (Id.)

Storch's Termination

Defendants claim that because of Storch's allegedly unsatisfactory performance at work, West Town terminated her on May 12, 2003. (Defs.' 56.1 ¶¶ 9, 11.) That day, Storch met with Fiedler, who was the vice-president of West Town and Storch's supervisor for her entire employment. (Id. at ¶ 8.) Fiedler says that he told Storch that the department was going through a reorganization to make it more efficient. (Fiedler Dep., p. 25.) Storch contends that this explanation was pretextual, since Fiedler hired only one new employee to take her place. (Pltf.'s 56.1(b)(3)(B) ¶ 21.) Plaintiff claims that the same amount of employees worked in her department after her termination as worked in her department prior to her termination. (Id.) But the new employee was hired to be a new dispatcher, which was a different position than the job Plaintiff held. (Storch Dep., p. 17.) Defendants claim that Plaintiff's duties were divided between Gnoth and the new employee. (Defs.' Resp. ¶ 21; Fiedler Dep., p. 29.)

Plaintiff also claims that West Town and Fiedler treated her differently than other employees. (Pltf.'s Mem., p. 8.) She claims that Gnoth would regularly use company phones for personal phone calls, would use a company computer to send and receive personal e-mails, and would use an instant messenger system on a company computer to communicate with family during work hours. (Pltf.'s 56.1(b)(3)(B) ¶¶ 18-20.) Defendants dispute these claims, while Gnoth contends that Storch herself used the phones for personal calls and used a West Town computer to search the Internet. (Defs.' Resp. ¶¶ 18-20; Gnoth Decl., at ¶ 5.)

Storch contends that no one raised an issue with her job performance for several years prior to her termination, and that her official written reprimands were limited to three occasions.

(Pltf.'s Resp. ¶ 33; Pltf.'s 56.1(b)(3)(B) ¶ 3.) Fiedler told Storch that she could use him as a reference in her search for new work. (Pltf.'s Resp. at ¶ 2.) Defendants, on the other hand, claim that Defendants experienced several problems with Storch's work performance, including excessive personal phone calls and leaving her desk to talk on the phone, and that Fiedler counseled Storch on several occasions to limit her telephone calls. (Defs.' Resp. ¶ 3; Defs.' 56.1 ¶ 26.) While Defendants concede Fiedler agreed to be a reference for Storch, they deny that Storch still performed her work at an acceptable level. (Defs.' Resp. ¶ 2.) Storch admits that she downloaded screensavers and a blackjack game onto her company computer and used an instant messenger system on that computer. (Pltf.'s Resp. at ¶¶ 36-39.) She also admits to using the phone for personal calls, but she claims that she did so rarely, and was only counseled about the issue twice. (Id. at ¶¶ 22, 23, 26.)

Storch's Illness

Storch always had a chronic cough, but it never proved too problematic. (Pltf.'s App., p. 19.) The cough increased in 2002, and in October of that year she first noticed dyspnea (a feeling of breathlessness). (Id.) After meeting with doctors, Storch was diagnosed with IPF in January 2003. (Defs.' 56.1 ¶ 46.) Marked by progressive scarring of the lungs, IPF is a debilitating disease that interferes with a person's ability to breathe. (Pltf.'s Ex. B.) The fibrosis is idiopathic because it has an unknown cause. (Id.) There is no known cure for IPF, and it always results in death. (Amesbury Decl., at ¶¶ 5, 7.)

In the five months between her diagnosis and her termination, Storch began using supplemental oxygen at night and taking doses of Prednisone to reduce inflammation in her lungs. (Pltf.'s Resp. ¶ 48.) She claimed that the drug caused her to be distracted at work. (Id.) One month after she was fired, on June 12, 2003, a pulmonary function report found her lung volume to be only 60 percent of the predicted range and described Storch's condition as a "moderately severe restrictive defect." (Pltf.'s 56.1(b)(3)(B) ¶ 16.)

In spite of this diagnosis, Storch testified that when she was terminated, there were no mental or physical activities in which she could not participate. (Defs.' 56.1 ¶ 48.) She did not use oxygen at work or at any time during the day when she was still employed at West Town. (Id. at ¶ 50.) The only thing she could not do was strenuous exercise, which she did not do before her diagnosis. (Id. at ¶ 49.) Storch stated that she would "get really winded easily" before she began using oxygen during the day. (Id. at ¶ 54.) Two years after her termination, she was still able to walk provided that she had her oxygen with her. (Id. at ¶ 53.) Although, she tires more easily and her pace is slower now when she walks. (Storch Dep., p. 108.)

The Insurance

Storch claims that her termination was not due to her performance at work, but rather because the Defendants knew of her illness-especially its progressive nature-and terminated her to avoid paying expensive insurance costs in the future. (Storch Dep., p. 93; Defs.' 56.1 ¶ 55.) She claims that Fiedler was familiar with IPF because of his friendship with Mike Rodriquez, another West Town employee, who had pulmonary problems in 2002. (Pltf.'s 56.1(b)(3)(B) ¶ 4; Pltf.'s App., p. 17.) Defendants contend that Fiedler was aware of the disease but was not familiar with it. (Defs.' Resp. ¶ 4.)

At the time of her termination, Storch was not enrolled in the West Town Health Insurance Plan. (Fiedler Dep., p. 37.) When she was first employed, she opted not to enroll in the plan. (Storch Dep., p. 41.) One month before her termination, Storch contacted Reedy employee Holly Ebner to inquire about enrolling in the program. (Defs.' 56.1 ¶¶ 60, 61.) Storch claims that she could have enrolled in the West Town Health Insurance Plan if the company had not terminated her. (Pltf.'s 56.1(b)(3)(B) ¶ 10.) Defendants disagree, and state that the company has a right to deny coverage to an employee who does not enroll in the plan when first eligible. (Defs.' Resp. ¶ 10.)

Employees contribute to the long-term disability insurance at West Town, but the plan pays the greater share of expenses for health care insurance coverage for its employees. (Pltf.'s Resp. ¶ 57; Pltf.'s 56.1(b)(3)(B) ¶ 11.) Also, West Town pays the full cost of the life insurance policy for its employees. (Id. at ¶ 14.) Nevertheless, Defendants contend that West Town ...

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