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Hillmann v. City of Chicago

September 26, 2007

ROBERT P. HILLMANN, PLAINTIFF,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, THE MUNICIPAL EMPLOYEES' ANNUITY AND BENEFIT FUND OF CHICAGO AND LOCAL 1001 OF THE LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM, OPINION AND ORDER

This case is before the Court on the motion of Defendant, City of Chicago, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion is granted in part and denied in part.

BACKGROUND

Plaintiff's complaint alleges five causes of action against Defendant City of Chicago. Plaintiff Robert Hillmann was employed by the City of Chicago ("City") for twenty-nine years beginning in June 1973. On February 23, 1995, Plaintiff and the City entered into a settlement agreement (the "Agreement"), settling a prior claim of handicapped discrimination filed by Plaintiff under the Illinois Human Rights Act and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Pursuant to the Agreement, Hillmann was assigned the position of Deputy Commissioner of the Bureau of Electricity in Streets and Sanitation. The position carried the job title of "Chief Timekeeper." Hillmann alleges that he had an oral agreement with the city that this new job would not involve use of his injured right arm, the written agreement notwithstanding.

As the Chief Timekeeper, Hillmann prepared reports regarding Bureau employees and documented the jobs they were performing. Hillmann maintained the Bureau's database, reviewed the monthly automobile mileage reimbursements for the Bureau and reported to the Deputy Commissioner on the various research projects he performed. Hillmann attended all 911 Board meetings, and all project work regarding the Chicago Emergency Telephone System was given to him for dissemination to Board members.

In late spring and summer of 2000, Patrick Slattery was named the Director of Staff Services in Streets and Sanitation. Hillmann's job duties were altered at this point. Hillmann claims that he was medically restricted from performing this additional, more taxing clerical work due to a host of pre-existing medical conditions, including cervical spondylosis, multilevel disc disease, cervical radiculopathy, brachial plexopathy, and arthritis. As a result of these conditions, Plaintiff allegedly requested that the City enforce the Agreement, which Plaintiff claims included the implicit provision that he not have to perform physically taxing work.

One day after making this request, Plaintiff was allegedly advised that one of the "bureau timekeepers" would be transferred and that Hillmann could be demoted to a Supervising Timekeeper. Plaintiff informed the City of Chicago in writing that his new job duties would violate the prior Agreement and requested that the City accommodate his physical impairments.

Plaintiff's job duties were then changed again on August 18, 2000, to include the following new job duties: "Mr. Hillmann will also be responsible for maintaining a 249-employee payroll; receiving and entering 30-35 edits per day in the Kronos system; performing a mass edit in Kronos for 90 employees who work in the field; entering exceptions into the Kronos system; entering daily activity onto time rolls; maintaining 300 Cards; and maintaining the Employee File Maintenance Module for said payroll."

On August 21, 2000, Assistant Commissioner Hennessy ordered Hillmann to report to the offices of Dr. Barry L. Fisher for a "Fitness for Duty Evaluation." Following this examination, the doctor recommended Hillmann for the position of Chief Timekeeper, but noted Plaintiff had limited use of his right arm and limited ability to lift and reach.

On September 1, 2000, Plaintiff filed a workers' compensation complaint with the Illinois Industrial Commission. At this point, he was transferred from his position as Chief Timekeeper to answering phones in the Bureau of Electricity, Construction Division. Following this demotion, Plaintiff alleges that a non-disabled employee, Steve Morales assumed the duties of Chief Timekeeper.

On September 13, 2000, Assistant Commissioner Hennessy ordered Hillmann to report for a "Functional Capacity Evaluation" for the position of Chief Timekeeper. The job description sent to the rehabilitation specialist contained Hillmann's newly added duties from August 18, 2000. On December 21, 2000, Hennessy ordered Plaintiff not to return to work, without pay and allegedly without explanation of his job status.

On January 23, 2001, Robert Serafin, Director of Workers' Compensation for the City, ordered Plaintiff to undergo medical tests at Mercy Hospital allegedly based on a referral from one Dr. Arnold. Plaintiff claims that prior to this date, he had never been seen by a Dr. Arnold.

On January 24, 2001, Serafin allegedly sent Plaintiff a letter denying medical care payments and liability under the Illinois Workers' Compensation Act because Hillmann's injuries were not work related. On January 29, 2001, Dr. Arnold determined that Hillmann's injuries were indeed work related. Despite this finding, Plaintiff did not receive payments under the Workers' Compensation Act.

On March 1, 2001, the City ordered Hillmann to return to work, allegedly without explanation for his layoff. Upon Hillmann's return to work, he was instructed to report to the Auto Pound, where his duties included opening and closing a heavy gate at the facility, which Plaintiff claims caused further injury. Plaintiff remained at the Auto Pound until his discharge on July 1, 2002.

Concurrent with these allegations of illegal job transfer and discharge, Plaintiff alleges that the City unjustly denied him a series of six merit pay increases between the dates of July 1, 2000 and June 1, 2002. Plaintiff also alleges that the City fraudulently altered his work history to hide this information. Specifically, Plaintiff claims that Assistant Commissioner Hennessy submitted an altered work history, in which five merit pay increase denials were expunged and the sixth denial was altered to indicate that Hillmann had received a pay increase. On March 28, 2001, Hillmann filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On July 1, 2002, Hillmann learned that his position was eliminated due to lack of funds.

On September 10, 2002, Plaintiff filed a timely charge of discrimination with the EEOC. He received a right-to-sue letter on September 9, 2004. Plaintiff filed a suit in the Circuit Court of Cook County on September 24, 2004. On October 15, 2004, the City removed the case to this court based on Counts II and IV of the complaint alleging violations of the ADA, 42 U.S.C. § 12101 et seq.

On May 16, 2005, Plaintiff claims that he first discovered he was denied merit pay increases. At this time, the City had produced a new version of Hillmann's work history in the City's Answers to Plaintiff's First Set of Interrogatories in this lawsuit. Upon discovery of these facts, Plaintiff filed a new charge of discrimination with the EEOC on July 5, 2005. He then received a right-to-sue letter from the U.S. Department of Justice Civil Rights Division on October 3, 2005.

In his Third Amended Complaint, Plaintiff alleges five counts against the City of Chicago: breach of contract (Count I); discrimination under the Americans with Disabilities Act (Count II); retaliation under the Americans with Disabilities Act (Count III); violation of the First Amendment pursuant to 42 U.S.C. ...


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