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Case Geraldine Viramontes v. U.S. Bancorp et al

January 27, 2011


Name of Assigned Judge Sharon Johnson Coleman Sitting Judge if Other or Magistrate Judge than Assigned Judge Nan R. Nolan


Plaintiff's Rule 37 Motion for Sanctions Due to Spoliation of Evidence and for Attorney's Fees and Costs of Motion [50, 55] is denied.

O[ For further details see text below.] Notices mailed by Judicial staff.


Plaintiff Geraldine Viramontes ("Viramontes") brings this employment discrimination action against U.S. Bank National Association ("U.S. Bank") and U.S. Bancorp (collectively "Defendants") claiming failure to accommodate and retaliation in violation of the Americans With Disabilities Act, interference and retaliation in violation of the Family and Medical Leave Act, and retaliatory discharge in violation of the Illinois Worker's Compensation Act. Viramontes now moves for sanctions pursuant to Federal Rule of Civil Procedure 37. For the reasons stated below, this motion is denied.

I. Background

Viramontes worked at U.S. Bank or its predecessors between September 6, 1988 and July 10, 2009. U.S. Bank maintains thousands of branches in 24 states. Viramontes worked for 10 years at the West Town branch and then worked for the next 11 years at U.S. Bank's Lincoln Park branch in Chicago. During the 21 years that Viramontes worked at U.S. Bank or its predecessors, Viramontes held the positions of receptionist, Customer Service Specialist 3, Universal Banker, and Universal Banker 2.

In July 2008, Dennis Lingenfelter ("Lingenfelter") became the manager at U.S. Bank's Lincoln Park branch where Viramontes worked. On December 8, 2008, Viramontes was seen by podiatrist Dr. Wika Gomez for a foot condition. On that day, Dr. Gomez wrote a letter to Lingenfelter stating:

[Viramontes] has a painful hallux limitus of the left foot that has been ongoing since February 2007. She has tried conservative treatment but they did not resolve her symptoms. She continue[s] to have pain and reports difficulty with walking and standing. We have discussed surgical options, but post operatively she will require[] 6 to 8 weeks to allow the bone cut to heal. I have advised her to request for medical leave, if necessary, in order to schedule for surgical correction.

(Doc. 42-1 at 112). Lingenfelter received Dr. Gomez's letter on December 8, 2008. Viramontes spoke with Lingenfelter about her foot condition for the first time after he received Dr. Gomez's letter.

On December 26, 2008, Viramontes fell at work and apparently injured her ankle and wrist. U.S. Bank's assistant manager Joshua Carter filed a claim for workers' compensation benefits on Viramontes' behalf. After her fall, Viramontes took a leave of absence from work. While on her leave of absence, Viramontes wrote a letter dated January 22, 2009 to U.S. Bank's human resources department complaining about Lingenfelter's "rude [and] unprofessional behavior." (Doc. 56-1 at 20). In her letter, Viramontes stated in part that everyone working at the Lincoln Park branch was "under pressure, being criticized, demoralized, and scrutinized," except the male assistant manager. Id. at 18. Viramontes also complained about Lingenfelter's actions and comments in December 2008 after learning of Viramontes' foot condition and possible surgery. Id. at 19. Viramontes concludes her letter by requesting that U.S. Bank remove Lingenfelter from the Lincoln Park branch. Id. at 20.

Viramontes returned to work on February 9, 2009 with certain restrictions. U.S. Bank states that its human resources department "worked through the basis" of Viramontes' January 22 letter, by among other things, having a meeting in late February or early March 2009 to allow Plaintiff and Lingenfelter a "fresh start, where Lingenfelter apologized to Plaintiff." (Doc. 56 at 12). U.S. Bank also offered Viramontes an opportunity to transfer from the Lincoln Park branch and away from Lingenfelter. When Viramontes declined a transfer, U.S. Bank says it reasonably believed that Viramontes' issues with Lingenfelter were amicably resolved and that "they would hear nothing more from [Viramontes] on the topic. " Id. In March 2009, Lingenfelter delivered an annual performance review to Viramontes that was an assessment of her work in 2008. Viramontes was placed her on a Performance Action Plan in April 2009. On July 10, 2009, U.S. Bank terminated Viramontes' employment.

On December 4, 2009, Viramontes filed the instant lawsuit in Cook County Circuit Court, which Defendants removed to the Northern District of Illinois. Viramontes filed a charge with the Equal Employment Opportunity Commission (EEOC) on December 7, 2009. On April 7, 2010 and after discovery began, Viramontes' counsel prepared a Proposed Electronic Discovery and Clawback Agreement for Defendants to consider. The next day, Defendants' counsel sent Viramontes' counsel an email stating:

I have discussed the ESI issue with our client. US Bank only retains email for a 90-day period, after which the email is irretrievably destroyed. The emails you are requesting we search for date from December 1, 2008 through July 10, 2009, all of which were irretrievably destroyed starting in March 2009 and ...

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