The opinion of the court was delivered by: David R Her|do| Chief Judge United States District Court
Now before the Court is Plaintiff's Motion for Partial Summary Judgment (Doc. 35) and Defendant's Motion for Summary Judgment (Doc. 33). Defendant and Plaintiff have filed responses to the respective motions (Docs. 41 & 38). Plaintiff has also filed a motion to strike evidence from the record in Defendant's Motion for Summary Judgment (Doc. 42). Both parties have filed replies to their respective motions (Docs. 39 & 45).
On January 26, 2000, Plaintiff filed for employment with Defendant and after receiving a conditional offer of employment was sent for a physical and drug test at St. Clare's Hospital in Alton, Illinois. (Doc. 34, Ex. B; Ex. C at pp. 35-36). Plaintiff signed an authorization allowing St. Clare's Hospital to release all her medical records or other information regarding her treatment to Defendant. (Doc. 34, p. 2, Ex. C at pp. 37-39). Plaintiff asked a hospital employee about the authorization and was told that Defendant would only receive a "fit for duty slip"; after the conversation, Plaintiff signed the authorization slip. (Doc. 41, Ex. 9 at pp. 41-42; Doc. 34, Ex. D).
On February 3, 2000, Plaintiff began working for Defendant as a Crew Dispatch Clerk. As part of her duties, she was in charge of processing documentation of new employees. (Doc. 34, Exs. A, G, & H). She worked with new employees, completing various forms, medical insurance enrollments, and verification that Defendant required of new employees and forwarded those documents to the corporate office. (Id.; Ex. C at pp. 92-93, 126, 72).
Approximately six months after her employment, Plaintiff received her first performance review from Bruce Cary, Vice President of Operations (Doc. 34, Ex. C, pp. 94-96). Plaintiff was told that she needed to improve the timeliness of her paperwork. (Id.). She also did not receive a pay raise at that time. (Id.). Shortly thereafter, Defendant's corporate office began sending correspondence to Plaintiff regarding deficiencies in her processing of new employees. (Doc. 34, Ex. J). On August 30, 2000, nine such problems were documented and on July 20, 2001, eight problems were documented. (Ex. J & K). On October 25, 2001, July 25, 2002, January 8, 2003, February 17, 2003, and August 28, 2003, Defendant's Human Resources Department sent Plaintiff lists of missing paperwork. (Ex. L -P). One such example of missing paperwork involved Defendant's employee Bobby Nation. (Doc. 34, Ex. A ¶¶ 9-10). Plaintiff failed to obtain a copy of a Prior Drug and Alcohol Verification from Nation's former marine employer, as required by Defendant. (Id.).
After finally receiving the verification on June 2, 2004, Mary Jekel learned that Plaintiff had made her first request for the verification in May 2004, two years after Nation was hired by Defendant. (Id.). Similar paperwork failing were documented in her performance reviews as both her 2001 and 2004 review stated that her paperwork needed to be more accurate and complete. (Doc. 34, Exs. Q & R).
Plaintiff alleges that Defendant kept record of her negative performance in a manner unlike anything it did with other employees. (Doc. 41 at p. 3, Ex. 7 at pp. 13-17). Plaintiff cites one document in her file related to Plaintiff describing an issue that was the fault of three people, including Kim Payne, but no such note was placed in the records related to Payne. (Id., Ex. 7 at p. 17; Ex. 13, p. 10). Another note in her file states that "missing paperwork record continues to grow (partly due to Kim P. Following up as well)." However, no note was placed in Payne's file. Plaintiff further alleges that when she received low marks on her 2004 evaluation, Randy Kirschbaum, Defendant's port captain, stated that he was instructed to change his evaluation by Jekel. She further alleges that when she expressed her concern that Jekel was trying to get rid of her, Kirschbaum stated "let's hope not." (Doc. 41, Ex. 1 ¶8). Kirchbaum told her a few weeks later that she had improved 100%. (Doc. 34, Ex. 1 ¶9). Plaintiff also told Bruce Cary that she feared Jekel was retaliating against her because of Plaintiff's protest regarding her medical records. (Id. at ¶15). Cary told her that as long as Plaintiff did her job well there wouldn't be a problem. (Doc. 34, Ex. 10 Dep. Ex. 40).
On August 19, 2004, Plaintiff was terminated by Defendant. Kirschbaum told Plaintiff that she was being terminated due to performance issues. (Doc. 41, Ex. 9 at p. 170). When Plaintiff asked Kirschbaum what performance issues he was referring to, Kirschbaum told her that the Bobby Nation thing did not help. (Id.). Kirschbaum identified several other areas of Plaintiff's job performance that were inadequate, including the fact that she was disorganized, made incorrect flight and travel arrangements, spent time at work on her personal website, her computer skills were insufficient, and she did not show improvement on her skills. (Doc. 24, Ex. T at pp. 14-15, 18, 21- 22, 25-31, 40).
Plaintiff challenged her termination by filing a charge of discrimination against Defendant with the Illinois Department of Human Rights (IDHR) in 2004. (Doc. 34, Ex. U). Plaintiff charged that she was retaliated against because she opposed four unlawful actions of Defendant; 1) its receipt of her post-offer physical records in 2000, 2) racial discrimination in hiring, 3) sexual harassment involving Jane Lyon and Wayne Williams, and 4) requiring deckhand Tim Scoggins to undergo a return-to-work physical. (Id.; Doc. 34, Exs. X & Y).
As to the charge regarding receipt of her post-offer physical records, Plaintiff alleged that after several weeks of working for Defendant, Wayne Williams, Port Captain and Plaintiff's supervisor, placed Plaintiff's physical examination report on her desk. (Doc. 34, Ex. C at p. 43). Plaintiff believed the disclosure of her medical information to Williams violated the Americans with Disability Act. (Doc. 41 p. 2, Ex. 1 ¶3; Doc. 34, Ex. W). Plaintiff subsequently put the report in a file and told Mary Jekel, Defendant's Manager of Human Resources, that she opposed sending it to the corporate office as was requested of her. (Doc. 34, Ex. C at p. 44). Plaintiff later sent the report to Jekel. Jekel testified that Defendant's policy was to keep medical information in a separate file and that the supervisor does not retain the information, although Jekel admitted that the manager initially receives the materials from the clinic and forwards them on to the personnel office. (Doc. 41, Ex. 11 at pp. 9-10, 85-86). Jekel also admitted that Kim Payne was copying the medical files and placing them in personnel files, but Jekel warned her of the legal ramifications of such actions and told her to stop copying the files. (Id. at p. 84, Ex. 11, Dep. Ex. 32).
Around the same time, Plaintiff also discovered that Williams was receiving "smut" magazines at the office and viewing pornographic materials on his work computers. (Doc. 41, Ex. 1 ¶4; Doc. 34, Ex. W). Plaintiff and Kim Payne complained about the receipt of magazines to Bruce Cary, Vice President of Operations, in February 2009. (Doc. 41, Ex. 9 at p. 200; Ex. 10 at pp. 12 -15). Williams received magazines each month in wrapped packages. (Doc. 41, Ex. 11 at pp. 12-13; Ex. 10 at pp. 12-15). Both Payne and Plaintiff talked to Cary who wanted to put an end to the act in a professional manner and Payne and Plaintiff decided to handle the situation themselves by speaking with Williams. (Doc. 34, Ex. C at p. 201; Doc. 41, Ex. 10 at pp. 12-15). Cary finally spoke with Williams in November 2000. (Doc. 41, Ex. 10 at pp. 15-18).
Plaintiff also alleged that she opposed Defendant's policy regarding employment of African Americans in late 2003. When Plaintiff was hired, she alleges that Williams told her that Defendant did not hire African Americans because if an African American was hired "more would want to come," and instructed Plaintiff to run a blind ad so no African Americans would walk into the office. (Doc. 41, Ex. 9 at pp. 103 - 104). Plaintiff stated that she did not review the applications of African Americans "a whole lot because [she] knew that it wasn't going to fly, anyway." (Id. at pp. 104-105). Despite this, Plaintiff interviewed Franklin Thomas, an African American, and told Kirschbaum, who replaced Williams, that Thomas was a good applicant. (Id. at pp. 104-109). She told Kirschbaum that "we have a good applicant here...he is black. We have no other black people here. Wayne Williams said that I couldn't hire any blacks. What do you think about this?" (Id. at p. 109). Kirschbaum told her it was okay with him, but that he would call the corporate office and informed Plaintiff a few days later that corporate's message was to go ahead and hire Thomas. (Id.). Plaintiff alleges that Kirschbaum called the corporate office only when there were "issues" with applicants. (Doc. 41, Ex. 12, pp. 50, 52).
In 2004, Plaintiff alleged that she opposed the sexual harassment of cook Jane Lyon, informing Kirschbaum in January that Lyon wanted a transfer due to lewd behavior and pornography on board. (Doc. 41, Ex. 9 at pp. 190, 199-200; Ex. 1 ¶12; Doc. 34, Ex. W). Plaintiff understood that the ship's captain was showing the crew sex videos of himself and his girlfriend. (Doc. 34, Ex. W).
In July 2004, Kirschbaum told Plaintiff that Jekel did not want Tim Scoggins to return to work because Kirschbaum was concerned about his health after Jekel looked through his medical records. (Doc. 34, Ex. W; Doc. 41, Ex. 1 ¶6). Scoggins had suffered a personal illness and had been hospitalized in May 2004. (Doc. 34, Ex. A at ¶¶6-7). Defendant's policy was to require that any person employed who had been off work due to injury or illness take a return-to-work physical exam, including a Job Placement Assessment (JPA) used to evaluate a person's strength and endurance. (Id. at ¶6). Dr. Halbeck declined to pass Scoggins because of his JPA and requested his physician send records regarding his treatment for liver disease; Scoggins subsequently provided the records and passed his later JPA. (Id. at ¶7). Plaintiff alleges that Kirschbaum told her that Jekel believed Scoggins should not have been hired in the first place based on a review of his medical records. (Doc. 41, Ex. 1 ¶6). Plaintiff questioned Kirschbaum whether a human resources manager could decide whether an employee was fit for work as that decision was up to a doctor. (Id.). Kirschbaum did not remember speaking with Plaintiff about Jekel not wanting to bring Scoggins back to work. (Doc. 34, Ex. 12 at pp. 45-47).
On July 10, 2007, Plaintiff filed a three count complaint against Defendant, arguing that Defendant discharged Plaintiff in violation of Title VII of the Civil Rights Act of 1963 and the Americans with Disabilities Act (ADA). (Doc. 2).
Plaintiff also alleged a claim of retaliatory discharged in violation of the public policy of the State of Illinois. (Doc. 2 ¶19-23). Along with the claims raised in her EEOC charge, Plaintiff also alleged, in answers to interrogatories, three other incidents where she opposed the practices of Defendant. (Doc. 34, Ex. W). Plaintiff alleged that in early 2003, Plaintiff opposed sexual harassment of a cook, Betty DuBois, which included a sign stating "Cunt" placed where DuBois could see. (Doc. 41 at p.4; Ex. 9 at pp. 192-93; Doc. 34, Ex. W). DuBois called Plaintiff hysterical and Plaintiff got her off the boat. (Doc. 41, Ex. 9 at p. 196). Kirschbaum acknowledged there was a complaint, but could not recall if it involved sexual harassment. (Doc. 41, Ex. 12 at pp. 68-69). Plaintiff further alleged that she complained to Randy Kirschbaum in May 2004 that Dave Smith was showing pornographic tapes of him and his girlfriend and in 2003 she opposed the Defendant's policy in their responsible carrier manual calling for crew members to tell captains what types of prescription drugs they were bringing on board the boat. (Doc. 34, Ex. W).
As to her claim that she was retaliated against in violation of Illinois public policy, Plaintiff alleged three instances where she protested safety issues. Plaintiff first alleges that she protested against defendant allowing Eldon Keymon to report to work under the influence of alcohol. (Doc. 34, Ex. W). On December, 3, 2003, Plaintiff told Kirschbaum that she smelled alcohol on Keymon's breath when he reported for work and Kirschbaum instructed that Keymon be taken to a medical facility where he failed a reasonable suspicion alcohol test. (Doc. 34, Ex. Z ¶6). Although Keymon was given an opportunity to participate in a substance abuse program, he was later fired for not complying with the program requirements. (Id.). Plaintiff admitted that she was not disciplined for her report. (Doc. 34, Ex. C at pp. 207-209).
Plaintiff also contended that she protested unhealthy fumes in the shop building. The shop manger told Plaintiff that another worker was going to call OSHA regarding the heat and fumes in the garage/shop. (Doc. 34, Ex. 1 ¶16). Plaintiff went to the shop and could smell the fumes. (Id.). That same day Kirschbaum told her that a worker was going to call OSHA and she agreed that there were indeed fumes in the shop. (Id.). She later told him that the problem needed to be straightened out because she could not lie under oath when OSHA came. (Id.). Defendant contends that Plaintiff lacks evidence that the fumes were unhealthy in any way. (Doc. 34 p. 18).
Plaintiff's last complaint involved her protest over Nathaniel Overton being allowed on a towboat because she observed him blinking repeatedly and having trouble focusing and other crew members had told her that he didn't seem quite right. Plaintiff also spoke with Kirschbaum regarding a new alarm system. (Doc. 34, Ex. W).
Defendant's answer denied the allegations in the Complaint and stated, as an affirmative defense, that Plaintiff both failed to mitigate her damages and that Plaintiff was discharged because of inadequate and poor job performance. (Doc. 4).
On May 23, 2008, Defendant filed a motion for summary judgment on all counts of Plaintiff's complaint. (Doc. 33). On May 23, 2008, Plaintiff filed a motion for partial summary judgment on Defendant's ...