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Killis v. Medieval Knights

December 4, 2007


The opinion of the court was delivered by: Judge James B. Zagel


James Killis, Jr. ("Mr. Killis" or "Plaintiff) filed a two-count complaint against Medieval Knights, LLC ("Medieval Knights" or "Defendant"). In Count I, Mr. Killis seeks to recover for retaliatory discharge. In Count II, he alleges that Medieval Knights failed to provide him with timely notice of his rights to insurance continuation. Currently before me is Medieval Knights' Motion for Summary Judgment or, in the alternative, Partial Summary Judgment. For the reasons that follow, that motion is granted in part and denied in part.


In 1994, Medieval Knights hired Mr. Killis to participate in its Chicago-area Medieval Times dinner and show at the Schaumburg Castle.Plaintiff worked as a squire from 1994 to 1996. He was promoted from squire to knight in late 1998 or early 1999, and continued to work as a knight until June 2004. Mr. Killis's responsibilities as a knight included demanding physical activity. He engaged in choreographed, simulated combat and wore heavy metal armor. During the performance, knights swing heavy weapons and perform some sequences on horseback.

Between May 1999 and January 2002, Plaintiff filed three workers' compensation claims for amounts other than merely expenses. In April 2003, some knights met with an attorney at a restaurant called the Fox & Hound to discuss their workers' compensation rights. Subsequently, on April 10, 2003, Eric Chiusolo, the Senior Vice President and Secretary/Treasurer of Medieval Knights, issued a memorandum to knights and squires discouraging the filing of false workers' compensation claims. Although the memo was ostensibly aimed at combating insurance fraud among knights, Mr. Chiusolo later testified that he was not aware of any such problem existing in the company. Moreover, he further acknowledged that one of reasons he issued the memorandum was to reduce claims.

Starting in September 2003, Mr. Killis began receiving negative performance evaluations. He received negative evaluations in September 2003, January 2004, and April 2004. In November 2003, Mr. Killis filed a fourth workers' compensation claim for a left shoulder separation. On March 16, 2004, Mr. Killis was given a final warning that his performance was not acceptable. Medieval Knights removed Plaintiff from performing in the show in March 2004. In June 2004, Mr. Killis rejected a $5,000 settlement offer from the workers' compensation carrier. The carrier then offered a $10,000 settlement, which Mr. Killis also rejected. Medieval Knights terminated Killis's employment about a week and a half later, on June 18, 2004. Medieval Knights told Killis that his termination resulted from unsatisfactory and unimproved job performance.


A. Summary Judgment Standard

Summary judgment is proper if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986) (stating that summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"). If the moving party meets this burden, the nonmoving party must then go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e). A genuine issue of material fact exists when there is evidence on the basis of which a reasonable jury could find in the plaintiff's favor, allowing for all reasonable inferences drawn in a light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).

B. Failure to Provide Notice Under COBRA

Killis contends that he did not receive notice of his insurance continuation rights under the Comprehensive Omnibus Budget Reconciliation Act ("COBRA").

COBRA requires that employers allow former employees the opportunity to continue health care coverage under the employer's plan (at their own expense, not to exceed 102 percent of the employer's cost) if a qualifying event occurs. 29 U.S.C. § 1161. When a qualifying event occurs (such as termination of employment, see 29 U.S.C. § 1163(2)), the employer is required to notify the plan administrator within thirty days of the date of the qualifying event. 29 U.S.C. § 1166(a)(2). Once the plan administrator is notified, the administrator must notify the employee of his continuation rights within fourteen days. 29 U.S.C. §1166(c) (2007). In this case, Mr. Killis's termination serves as a qualifying event under 29 U.S.C. §1163. The question, therefore, is whether the required notice was properly provided within the statutory period.

Plaintiff maintains that he did not receive the proper notice; nevertheless, Defendant may be deemed to have complied with the statute if it acted in "good faith." See Keegan v. Bloomingdale's, 992 F.Supp. 974, 977 (N.D. Ill. 1998) ("[A] good faith attempt to comply with a reasonable interpretation of the statute is sufficient to satisfy COBRA requirements."). The plan administrator must have "caused the notice to be sent in a good faith manner reasonably calculated" to reach the employee. Proof of actual receipt is not necessary. Id. Notice by first class mail addressed to the former employee's last known address is an acceptable method of notification. Id. at 979. Therefore, Killis must demonstrate not only that he did not receive actual service, but also that the notice was not provided in a manner reasonably calculated to reach him.

Here, the plan administrator sent the notice to an address that Mr. Killis had previously provided. In his response, Plaintiff claims that he had informed his employer of his change of address prior to his termination, and therefore, that notice was sent to an address other than his "last known address." However, in his deposition, Mr. Killis concedes two critical points: first, that Medieval Knights did in fact send notice to his "last known address;" second, that he was receiving mail at this address, including his ...

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