The opinion of the court was delivered by: Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
A. Samson Pillay ("Pillay") and Anthony Ramirez ("Ramirez") filed this law suit against Millard Refrigerated Services, Inc. ("Millard") alleging claims under the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12102 et seq.*fn1 and several Illinois law claims. Ramirez alleges employment discrimination in violation of the ADA (count I) and retaliatory discharge under Illinois law (count III). Pillay alleges retaliation in violation of the ADA (count II) and state law claims of retaliatory discharge (count IV), libel/slander (count V), tortious interference with a prospective contract (count VI), and negligent spoliation (count VII).*fn2 Millard has moved under Federal Rule of Civil Procedure 56 for partial summary judgment as to counts I, II, IV, V, and VI. [Dkt. 82.] For the reasons explained below, the motion is denied with respect to counts I and II and granted with respect to counts IV, V, and VI.*fn3
Millard is a third party logistics company that warehouses its customers' perishable products in a refrigerated or frozen environment. (Def. L.R. 56.1 ¶ 3.) Millard does not own any of the products; rather, it receives and stores those products for a fee and then ships them elsewhere as directed by its customers. (Id. ¶ 4.) In 2000, Pillay began working at Millard's facility in Geneva, Illinois as a Human Resources Coordinator. (Id. ¶ 30.) Ramirez began working at Millard's Geneva facility beginning in 2008 as a temporary employee and later as a "regular" (as opposed to temporary) employee. (Id. ¶ 9.)
Before working at Millard, Ramirez worked at Home Depot as part of a freight team, stocking shelves after business hours. (Def. L.R. 56.1 ¶ 6.) In October 2007, while working at Home Depot, Ramirez suffered an on-the-job injury to his knee, which required surgery. (Id.) Ramirez was off work for a period of three months. (Id. ¶ 7.) By the time he returned to work at Home Depot, Ramirez had made a complete recovery. (Id.) He could do everything he had been able to do before the injury. (Id.)
In connection with the injury, Ramirez filed a Worker Compensation ("WC") claim and received a settlement in the amount of $12,000. (Def. L.R. 56.1 ¶ 6.) After submitting his WC claim, the Illinois Industrial Commission ("IIC") informed Ramirez that he had a 17.5 percent disability (or 17.5 impairment rating). (Id. ¶ 17.) In February 2008, approximately a month and a half after returning to work, Home Depot terminated Ramirez due to his failure to report an accident involving damage to merchandise. (Id. ¶ 8.)
During June, 2008, Ramirez was hired for a position at Millard through a temporary employment agency. (Def. L.R. 56.1 ¶ 9; Pl. L.R. 56.1 ¶ 16.) As a temporary employee, Ramirez worked as a "picker," a position which entailed using an electric pallet jack or forklift to fulfill orders of refrigerated or frozen products to be shipped. (Def. L.R. 56.1 ¶ 9.) On his June 2008 employment application, Ramirez indicated that he would be "able to consistently and reliably perform the essential functions of the job with or without reasonable accommodation." (Id. ¶ 11.) The application did not ask about any prior work-related injury. (Id.)
Temporary employees who performed satisfactorily were eligible for regular employment with Millard. (Def. L.R. 56.1 ¶ 10.) Applicants were required to fill out a Personal and Confidential Conditional Job Offer & Medical Review Form ("Conditional Job Offer Form"). (Id.) Ramirez had received good reviews as a temporary employee (Pl. L.R. 56.1 ¶¶ 17--18), so he applied for a regular position.
In his Conditional Job Offer Form, Ramirez disclosed that while working for Home Depot he had suffered an on-the-job injury to his knee which required three months off work and that he had filed a WC claim in connection with that injury. (Def. L.R. 56.1 ¶ 14, Exhibit ("Ex.") F.) Ramirez further provided on his application that he had no (0 percent) permanent disability resulting from the October 2007 injury. (Id.) On July 28, 2008, Millard hired Ramirez as a regular employee. (Id. ¶ 12.) Ramirez was then reassigned to a new position operating a forklift. (Pl. L.R. 56.1 ¶ 21.)
Ramirez, like other new hires, was subject to a 90 day probationary period. (Def. L.R. 56.1 ¶ 12.) The purpose of the probationary period was to allow the employee time to adjust to his or her new position while providing the supervisor an opportunity to assess the employee's suitability to the position and to verify information provided on the Conditional Job Offer Form. (Id. ¶¶ 14, 28.) Moreover, Millard employed a labor management system ("LMS") to track its warehouse employees' productivity and performance, which it would then measure against its own performance standards. (Id. ¶ 26.) Millard advised Ramirez that it expected his productivity to be between 95 and 98 percent. (Id. ¶ 27.) Millard expected a performance level of 100 percent for its employees. (Id.) Probationary employees at Millard were held to a higher standard of conduct. (Id. ¶ 28.) Ramirez was told that his performance and LMS numbers were great. (Pl. L.R. 56.1 ¶ 21.)
Ramirez's Conditional Job Offer Form was sent to Millard's headquarters in Omaha, Nebraska. (Pl. L.R. 56.1 ¶ 22.) Rachel O'Dell, a Claims Risk Management Specialist for Millard at headquarters, reviewed Ramirez's Conditional Job Offer Form. (Def. L.R. 56.1 ¶¶ 18--19.) O'Dell recognized that missing three months of work as the result of a knee injury indicated that the injured worker had undergone surgery and that, in Illinois, an injury requiring surgery would not yield a zero percent impairment rating as Ramirez had indicated on his Conditional Job Offer Form. (Id. ¶ 20.)
O'Dell advised either Mark Domroes, General Manager of the Millard Plant in Geneva, or Pillay that Ramirez had an impairment rating assigned by the ICC which he did not indicate in his Conditional Job Offer Form. (Def. L.R. 56.1 ¶ 22.) On August 20, 2008, Domroes emailed Nick Dayan, Millard's Senior Vice President of Human Resources:
Don't forget about Anthony Ramirez. We discussed he was an injury risk, had a 13 wk settlement from a previous job and was rated 17.5% perm disability. Is he someone we want to probation out now? (hired 7/28) (Pl. L.R. 56.1 ¶¶ 6--7.) Dayan responded to Domroes the same day, "We have this all documented right? . . . Let's get him out asap." (Id. ¶ 7.) Dayan testified that his response to Domroes' email was in reference to a separate conversation regarding Ramirez's performance. (Def. Resp. to Pl. L.R. 56.1 ¶ 8.) During his deposition, Domroes explained his understanding of the 17.5 percent disability rating referenced in his email to Dayan:
This information was supplied to me by Sam, Sam Pillay. So he had brought it to my attention that he had found out that this person was - - like I said, was previously injured, had a permanent disability, he was a recent new hire. And my understanding was that it was not put on his application. I don't know - - I can't speak for Sam.
I don't know that we would have hired someone if that was known up front just because of the physical requirements for the job and having to lift and twist and, you know, that would have probably had to potentially gone through our corporate office.
So that was brought to my attention, so I wanted to run it up the ladder. I was not going to make a decision to keep him or not keep him. So my question basically to Nick was giving him the facts, just saying that, hey, this gentleman has come here with some physical limitations, he's a new hire, he's still on probation, you know, he's a probationary employee. So my understanding under Illinois law, that, you know, you can be let go for any reason whatsoever. And the second email was from Nick telling me to - - instructing me to let him go. (Def. L.R. 56.1, Ex. B, Domroes Dep. at 25--26.) Domroes testified about physical abilities that he believed Ramirez was lacking:
To be honest with you, in looking at the e-mail, and again I told you I did not recall whether this was legs or arms, but, you know, the - - there's lifting involved with the jobs, especially new hires traditionally have put - - are put into a picking role.
That is the probably - - I don't necessarily want to say an entry level, because we fill employees where they're needed. But case pickers are in the freezer for the longest period of time, so it's the roughest, so you kind of graduate out onto the docks of loading and unloading as you get with experience, and you're operating a piece of equipment which takes more skill.
So, you know, to operate a piece of equipment, you need a skill set with, you know, a fully functioning - - I mean, if you're limited in any capacity, and I'm not a doctor, I don't know what 17-and-a-half percent means. But if there's a potential there that he can't steer the forklift properly or brake properly, that he can't manage that, that is a potential risk to other employees. Lifting requirements, I believe it was at least 25 pounds, if not up to 50 pounds, that they're required to lift, so that could be a potential if he's - - he could injure himself. If he was favoring one arm or one leg, he might put undue duress on another part of the body and then potentially risk injuring himself. So I believe that the thought process behind that was to avoid a potential workers' comp claim and injury to himself and/or others. (Def. L.R. 56.1, Ex. B, Domroes Dep. at 27--28; Pl. L.R. 56.1 ¶ 4.) With regard to the decision to terminate Ramirez, Domroes explained that "we've had terminations for performance and - - but in this case, this wasn't really performance related directly, it was about his - - his ability to do the job and his injury, previous injury." (Def. L.R. 56.1, Ex. B., Domroes Dep. at 41.)
On August 21, 2008, after approximately four weeks on the job, Ramirez had a performance level of 59 percent, which was lower than Millard's claimed performance expectation level of 100 percent. (Def. L.R. 56.1 ¶ 29, Ex. J.) Millard terminated Ramirez on August 21, 2008. (Def. L.R. 56.1 ¶ 28.) Millard provided Ramirez with a "Termination Report" which checked a box titled "PROBATIONARY PERIOD; NO MISCONDUCT" denoting the reason for his termination. (Pl. L.R. 56.1 ¶ 26, Ex. 16.) The Termination Report did not reference Ramirez's LMS-determined performance level as the reason for his termination. (Id.) In August 2009, the raw data used to create Ramirez's LMS numbers were automatically deleted. (Pl. L.R. 56.1 ¶ 32.)
Millard hired Pillay on April 17, 2000 as a Human Resources Coordinator. (Def. L.R. 56.1 ¶ 30.) Part of Pillay's duties included being involved in hiring and firing. (Id.) He "administered" terminations based on the recommendations of supervisors, the operations manager, or the General Manager. (Id. ¶ 31.) From 2000 to 2008, Pillay received good/great performance reviews in addition to pay raises and bonuses. (Pl. L.R. 56.1 ¶ 11.) Pillay did not work with or know Ramirez when Ramirez worked at Home Depot. (Def. L.R. 56.1 ¶ 65.)
Dayan began working at Millard in its corporate headquarters on March 17, 2008. (Def. L.R. 56.1 ¶¶ 32, 34.) Shortly thereafter, Dayan reviewed a complaint dated March 7, 2008 about Pillay. (Id. ¶ 35.) On March 26, 2008, Dayan received another complaint that referred to Pillay. (Id. ¶ 37.) In March and April 2008, Dayan visited the Geneva facility, at which time he received numerous verbal complaints about Pillay. (Id. ¶ 40.) The complaints were directed to Pillay's (1) lack of confidentiality in his HR role; (2) discouraging/warning employees about attempting to contact corporate headquarters; (3) withholding freezer gear from employees; (4) mean, disrespectful and abusive treatment of employees; and (5) general unapproachability. (Id.) Dayan discussed these complaints with Pillay and decided in collaboration with Domroes that Pillay would be placed on a performance improvement plan ("PIP"), the goal of which was to make Pillay a better employee by addressing deficiencies identified in his performance. (Id. ¶¶ 45-46.) The PIP identified a number of areas of needed improvement, including (1) confidentiality; (2) favoritism; (3) hiring; (4) communication; and (5) employee development. (Id. ¶ 45.) The PIP also required Pillay to complete the program and to maintain sustained results after the program's completion. (Id. ¶ 46.) Pillay did not believe that the PIP was merited (Pl. L.R. 56.1 ¶ 13) and disagreed with the terms contained therein. (Pl. L.R. 56.1, Ex. 12.) Millard had received complaints about other Millard employees during 2007, but only Pillay received disciplinary repercussions. (Pl. L.R. 56.1 ¶ 36.) Specifically, Dayan reviewed prior complaints about Operations Manager Mike Polerecky and Domroes. (Def. L.R. 56.1 ¶ 42; Pl. L.R. 56.1 ¶ 36.)
The PIP went into effect on May 5, 2008 (Def. L.R. 56.1 ¶ 49) for a ninety-day period, setting a schedule of three follow-up meetings every thirty days. (Pl. L.R. 56.1 ¶ 14.) On June 2, 2008, Domroes and Pillay had a PIP follow-up meeting, at which time Domroes concluded that "[Pillay] has achieved the required improvements." (Id.) On August 1, 2008, the PIP expired (id. ¶ 15); however, the PIP required "sustained results" for continued employment. (Def. L.R. 56.1 ¶ 46.)
During August 2008, Dayan received additional complaints from other Millard employees about Pillay. (Def. L.R. 56.1 ¶ 60(a)--(h).)*fn5 At about this same time, Pillay requested documentation regarding Ramirez's termination, and on August 21, 2008, Domroes forwarded Pillay the August 20, 2008 email between himself and Dayan concerning Ramirez. (Pl. L.R. 56.1 ¶ 24.) Pillay met with Dayan and alleges that they had a heated argument during which Pillay protested Ramirez's termination. (Id. ¶¶ 25--26.) Pillay testified that he told Dayan that terminating Ramirez because he had a disability and had filed a WC claim was illegal. (Id. ¶ 25.) Despite his protest, Pillay alleges that Dayan ordered him to terminate Ramirez. (Id. ¶ 26.)
Millard, on the other hand, disputes that Pillay ever objected to Ramirez's termination. (Def. L.R. 56.1 ¶ 56.) Domroes ...