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Berger v. Art Institute of Chicago

October 21, 2009

BERNARD BERGER, CRAIG JOHNSON, GREGORY CAHILLANE, AND ALBERTINE CONELL, PLAINTIFFS,
v.
THE ART INSTITUTE OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: George M. Marovich United States District Judge

Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiffs Bernard Berger ("Berger"), Craig Johnson ("Johnson"), Gregory Cahillane ("Cahillane") and Albertine Conell ("Conell") filed this suit against defendant the Art Institute of Chicago ("AIC" or the "Art Institute"). Plaintiffs assert that the Art Institute terminated their employment in violation of federal law. The Art Institute has filed two motions for summary judgment. In the first motion, the Art Institute seeks summary judgment with respect to Berger's claims that his employment was terminated in order to interfere with his rights to benefits under the Employee Retirement Income Security Act ("ERISA"). In the second motion, the Art Institute seeks summary judgment on Johnson's, Cahillane's and Conell's claims that he or she was terminated in violation of ERISA and the Age Discrimination in Employment Act. For the reasons set forth below, the Court grants both motions for summary judgment.

I. Background

The following facts are undisputed unless otherwise noted.*fn1

Defendant AIC is a not-for-profit corporation made up of two divisions: the School of the Art Institute of Chicago and the Art Institute of Chicago Museum. The four plaintiffs in this case worked for the Department of Protective Services--the department within the Museum that is responsible for the safety and security of the museum patrons and the exhibits.

During the relevant time period, the AIC employed Ray Van Hook ("Van Hook") as the Executive Director of the Department of Protective Services. Van Hook had final approval over employment terminations and suspensions. In addition, Van Hook was in charge of his department's budget.

When Van Hook became Executive Director at some point in 2002, he was told to decrease his 2003 budget by 15%. His budget included, among other things, salaries, wages and benefits. He made the cuts by not filling vacancies and by cutting overtime and training expenses. In addition, he outsourced portions of the security function to Securitas.

Facts that are argued but do not conform with the rule are not considered by the Court. In addition, where one party supports a fact with admissible evidence and the other party denies the fact without citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This, however, does not absolve a party of its initial burden of putting forth admissible evidence to support its facts. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court. For example, in ¶ 39 of defendant's statement of facts with respect to Berger, defendant stated, "Neither Skimina nor Van Hook took Plaintiff's pension or health benefits into account when making the decision to terminate his employment." The fact was supported by affidavits signed by Skimina and Van Hook. Plaintiff denied the fact without citation to any evidence. Accordingly, the Court deemed ¶ 39 admitted.

The Court also notes that plaintiffs filed more than the 40 statements of fact allowed by Local Rule 56.1. Although defendant would like the Court to ignore the additional facts, this Court declines and notes that plaintiffs have the burden of proof and that their attorney was asserting individual claims of four plaintiffs.

Benefit plans at the AIC

The Art Institute offered two employee benefit plans that are relevant to plaintiffs' claims.

Each of the four plaintiffs participated in the Art Institute's Pension Plan. The Pension Plan's Summary Plan Description states, among other things, "If you feel you are being denied a pension or you disagree with the amount of your pension benefit, you . . . may file a claim with the Art Institute." The Summary Plan Description goes on to state, "You must exhaust the Plan's appeal procedures prior to seeking any other form of relief." During plaintiffs' tenure with the Art Institute, the plan was a defined benefit plan. New employees hired after January 1, 2007 became participants not in the defined benefit plan but in a new defined contribution plan.

The Art Institute also offered a welfare benefit plan (the "AIC Health Insurance Plan"), and that plan is relevant to one of Berger's claims. The welfare plan requires exhaustion of plan appeal procedures if the employee "believes that he or she is being denied participation in the Plan or enrollment in any Benefit Program." At some point in 2005 (either January or July), the AIC Health Insurance Plan became self-insured.

Berger

The AIC hired Berger in 1977. His first position was as a Safety Coordinator, and his last position at the AIC was as a Fire Protection Specialist. As such, Berger was responsible for performing maintenance inspections of fire equipment, responding to accidents, training others on how to use fire equipment and providing CPR and first-aid training.

Berger participated in the AIC Health Insurance Plan, and his wife and son were beneficiaries under the plan. From September 2002 to September 2003, Berger's son incurred approximately $53,000 worth of medical expenses covered by the plan. In 2004, Berger's wife incurred approximately $100,000 worth of medical expenses covered under the plan. In 2005, Berger's wife incurred fewer medical expenses than she had in prior years.

By 2001, Berger reported to Margaret Skimina, who was the Associate Director of Fire Protection and Environmental Health and Safety at the Art Institute. Skimina, in turn, reported to Ray Van Hook ("Van Hook"), who was the Executive Director of the Department of Protective Services. Skimina, as Berger's supervisor, reviewed Berger's performance for the period of April 2001 to March 2002. In that review, she rated Berger as meeting expectations in most areas, but she rated Berger as failing to meet expectations in a couple of areas. In particular, Skimina told Berger to take computer training, to take a typing class, to document his verbal conversations and to take fire-safety courses.

About a year later, Skimina reviewed Berger's performance for the period of March 2002 to May 2003. Skimina rated Berger as not achieving expectations in certain areas, such as adaptability, analytical skills, communication skills and organization skills. Once again, Skimina told Berger to take a typing class, a computer class and an advanced fire systems class and to document his verbal conversations.

Skimina reviewed Berger's performance again in November 2004. By then, Berger had still not taken a typing class or the fire safety class. Berger could not find a typing class to take, and Skimina did not respond to his question of what fire class to take. During the years when Berger failed to take the typing class and the fire safety class, he worked on several large projects in addition to his usual workload. These projects included renovating the Ferguson wing, adding new fire protection systems to elevators and the relocation of storage units within the Art Institute. When Berger asked to work overtime, his requests were denied. Despite this, Skimina continued to rate Berger's performance as not achieving expectations in several areas. In the November 2004 evaluation, Skimina recommended a performance improvement plan for Berger.

On November 5, 2004, Skimina and Van Hook met with Berger and explained the performance improvement plan. Among other things, they informed Berger that if he did not improve his performance, his employment would be terminated. About three months later, Skimina met with Berger about his performance. Skimina told Berger that she did not believe he had achieved all of the targets, but Skimina gave him more time. Berger understood that Skimina was not satisfied with his performance.

Berger continued to work for the AIC. At some point in September 2005, Berger removed tickets to a White Sox game from Skimina's office, because she was sick and unable to use the tickets. About two weeks later, Skimina wrote Berger a memorandum about her continued dissatisfaction with his performance. In the memo, Skimina told Berger that he was not documenting his activities sufficiently or completing tasks in an efficient manner. Berger told Skimina he would try to improve his performance.

In October 2005, Skimina was drafting Berger's annual review. Concluding that Berger's performance was still not acceptable, Skimina recommended to Van Hook that Berger's employment be terminated. Van Hook agreed. It is undisputed that neither Skimina nor Van Hook took Berger's pension or health benefits into account when making the decision to terminate his employment. Skimina informed Berger that his termination was due to performance and, later, provided a written explanation. Berger then met with Van Hook to ask for his job back, but Van Hook did not change his decision to terminate Berger's employment.

Since his termination, Berger has received his vested pension payments. He believes he would be entitled to a greater payment had he continued working for the Art Institute. Berger still participates in the AIC Health Plan for ...


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