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Hillmann v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

March 31, 2014

ROBERT P. HILLMANN, Plaintiff,
v.
CITY OF CHICAGO, Defendant

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For Robert P Hillman, Plaintiff: Kathryn Margaret Reidy, LEAD ATTORNEY, Law Offices of Kathryn M. Reidy, Bayview, ID; Brian M. Ozog, Stephen P. Carponelli, Carponelli & Krug, P.C., Chicago, IL; Byron Doyle Knight, Elizabeth Ann Knight, Knight, Hoppe, Kurnik & Knight LLC, Rosemont, IL; Jeanne M. Anderson, Knight Hoppe Kurnik Knight, Rosemont, IL.

For City of Chicago, a municipal Corporation, Defendant: Naomi Ann Avendano, LEAD ATTORNEY, Deja C. Nave, City of Chicago (30 N LS), Chicago, IL; Mara Stacy Georges, City of Chicago Department of law, Chicago, IL; Melanie Patrick Neely, City of Chicago, Law Department, Corporation Counsel, Chicago, IL; Valerie Depies Harper, City of Chicago, Law Department, Chicago, IL.

For Local 1001 of the Laborers' International Union of North America, Defendant: Patrick Edward Deady, LEAD ATTORNEY, Matthew James Cleveland, Hogan Marren, Ltd., Chicago, IL; Limo T. Cherian, Hogan Marren, Ltd, Chicago, IL.

For Jack Drumgould, deponent: Raymond P. Garza, LEAD ATTORNEY, Attorney at Law, Olympia Fields, IL.

For John Sullivan, deponent: Cynthia Louise Giacchetti, LEAD ATTORNEY, Law Office of Cynthia Giacchetti, Chicago, IL.

OPINION

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Rubé n Castillo, Chief United States District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Robert P. Hillmann filed this action against his former employer, the City of Chicago, alleging tat his termination was illegal on various grounds. Plaintiff originally brought five claims in this case, alleging breach of contract, discrimination in violation of the Americans with Disabilities Act (the " ADA" ), 42 U.S.C. § 12101 et seq. , retaliation in violation of the ADA, political hiring and firing decisions in violation of the First Amendment of the United States Constitution, and retaliation and denial of medical benefits in violation of the Illinois Workers' Compensation Act (the " IWCA" ), 820 Ill. Comp. Stat. 305/1 et seq. (R. 125, Third Am. Compl.) On September 26, 2007, Judge Wayne R. Andersen granted Defendant's motion for summary judgment as to the breach of contract claim, the First Amendment claim, and the denial of medical benefits portion of the IWCA claim. (R. 188, Mem. Op. and Order.) Upon Judge Andersen's retirement, this case was reassigned to Judge William J. Hibbler, (R. 247, Exec. Comm. Order), who presided over the seven-day jury trial on Plaintiff's remaining claims in June 2011, (R. 311, Min. Entry). Judge Hibbler unfortunately and prematurely passed away before he issued findings of fact and conclusions of law or a ruling on the equitable ADA retaliation claim, and the case was reassigned to this Court. (R. 338, Exec. Comm. Order.) This Court granted Plaintiff's motion for a new trial, (R. 362, Pl.'s Mot.; R. 376, Min. Entry), which took place over seven days in April 2013, (R. 483, Min. Entry; R. 484, Min. Entry; R. 488, Min. Entry; R. 489, Min. Entry; R. 492, Min. Entry; R. 493, Min. Entry; R. 501, Min. Entry). The jury trial was simultaneously a bench trial on Plaintiff's ADA retaliation claim, and the Court used the jury in an advisory capacity as to that claim. ( See R. 420, Min. Entry.) On April 17, 2013, the jury returned a verdict in favor of Defendant on Plaintiff's ADA discrimination claim, ADA failure to accommodate claim, and ADA retaliation claim. (R. 500, Verdict.) The jury returned a verdict in favor of Plaintiff on his claim of retaliatory discharge under the Illinois Workers' Compensation Act and assessed damages of two million dollars. ( Id. )

Presently before the Court are: (1) Plaintiff's motion to vacate the advisory jury verdict as to Plaintiff's ADA retaliation claim (R. 503); (2) Defendant's renewed motion for judgment as a matter of law (R. 508); (3) Defendant's motion to reinstate the original jury verdict or, alternatively, for a new trial (R. 511); (4) Defendant's motion for remitter or, alternatively, for an evidentiary hearing as to damages (R. 515); and (5) Defendant's motion for the Court to issue findings of fact and conclusions of law in its favor on Plaintiff's ADA retaliation claim (R. 521). The Court begins by setting forth its findings of fact and conclusions of law as to Plaintiff's ADA retaliation claim. The basis of Plaintiff's claim of retaliation in violation of the ADA is his allegation that after each request for a reasonable accommodation for his disability, which he made " in person or through legal counsel," Defendant retaliated against him by denying merit pay increases, transferring him or creating new job duties that further injured him,

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and ultimately terminating him. (R. 125, Third Am. Compl. ¶ 68.)

Pursuant to Federal Rule of Civil Procedure 52, this Court hereby enters the following written Findings of Fact and Conclusions of Law, which are based upon consideration of all the admissible evidence as well as this Court's own assessment of the credibility of the trial witnesses. To the extent, if any, that Findings of Fact, as stated, may be considered Conclusions of Law, they shall be deemed Conclusions of Law. Similarly, to the extent that matters expressed as Conclusions of Law may be considered Findings of Fact, they shall also be deemed Findings of Fact. The Court's Conclusions of Law are limited to Plaintiff's claim of retaliation in violation of the ADA. For the sake of efficiency, however, the Court includes in its Findings of Fact facts that are pertinent to the remaining post-trial motions, which are discussed below.

FINDINGS OF FACT

This Court concludes that Plaintiff established through both direct and circumstantial evidence, as well as reasonable inferences drawn therefrom, the following facts by a preponderance of the evidence:

I. General Background

1. Plaintiff began working for the Chicago Park District in June 1973 as a park attendant. (Trial Tr. at 31:2-7.) He worked as a park attendant for approximately five and a half years and then took a job as a truck driver with the Chicago Department of Streets and Sanitation (" the Department" ). (Trial Tr. at 31:10-14.)

2. In or around November 1984, Plaintiff developed cervical radiculopathy. (Trial Tr. at 32:5-8.) Cervical radiculopathy is the interference of normal nerve function that results from pinched or compressed nerves. (Trial Tr. at 121:1-10.) This interference can cause pain, weakness, limited mobility, and the loss of sensation in a person's arm. (Trial Tr. at 121:5-14.) Cervical radiculopathy is typically a permanent condition. (Trial Tr. at 121:15-21.) Plaintiff's condition caused pain and swelling in his neck and right arm. (Trial Tr. at 32:12-14.)

3. In 1995, Plaintiff sought an accommodation from the City to allow him to avoid repetitive work with his right arm because of his condition. (Trial Tr. at 201:20-23.) As part of the ensuing 1995 Agreement between Plaintiff and the City, Plaintiff was promoted to the role of Chief Timekeeper and assigned to the Bureau of Electricity (the " BOE" ), a division of the Department of Streets and Sanitation. (Trial Tr. at 52:17-20, 224:19-24, 225:8-13, 226:16-21.)

4. Dr. Michael F. Gonzales, Plaintiff's treating physician, began treating Plaintiff for cervical radiculopathy in the mid-1980s. (Trial Tr. at 120:12-15.) Dr. Gonzales specializes in physical medicine and rehabilitation and pain medicine. (Trial Tr. at 117:18-118:2.) Between the 1995 Agreement and the year 2000, Dr. Gonzales saw Plaintiff for unrelated reasons but did not treat Plaintiff's cervical radiculopathy because it was stable and did not need treatment during that time period. (Trial Tr. at 124:1-7, 156:2.) In 2000, Dr. Gonzales observed " a significant change in [Plaintiff's] condition" that required further treatment. (Trial Tr. at 124:15-125:5.) Specifically, Plaintiff's right arm, shoulder, and hand were swelling and causing him pain. (Trial Tr. at 124:24-125:2.) Dr. Gonzales observed Plaintiffs condition worsening between 2000 and when he stopped seeing Plaintiff in 2002 or 2003. (Trial Tr. at 155:23-156:4.)

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II. Transition of Duties in the BOE

5. In his role as Chief Timekeeper of the BOE, Plaintiff reported to Deputy Commissioner Jim Heffernan from 1995 until May 2000. (Trial Tr. at 226:16-21, 232:22-233:5.) Plaintiff's understanding of the 1995 Agreement was that he would not be performing all of the duties of a Chief Timekeeper. (Trial Tr. at 227:19-22.) The Chief Timekeeper job description listed, as examples of duties:

Directs, coordinates and reviews departmental timekeeping functions to ensure accurate and proper reporting of information, directs and supervises a large group of clerical personnel engaged in various timekeeping and payroll administration activities; examines reports and records to verify the execution of proper timekeeping methods; assigns and supervises a group of Supervising Timekeepers who check employees' presence an [sic] the job; represents the department at various meetings and conferences pertaining to the performance of various timekeeping and payroll activities; reviews time verification reports and payroll sheets for accuracy and to ensure proper processing; resolves complaints pertaining to timekeeping or payroll methods or procedures; maintains records and prepares various monthly progress and status reports.

(Def.'s Ex. 3.) Plaintiff performed some of the Chief Timekeeper duties, such as preparing overtime reports, supervising a group of supervising timekeepers below him, and directing clerical personnel. (Trial Tr. at 230:12-231:11, 236:11-15.) He also prepared memoranda to Heffernan to inform him when employees were claiming excessive overtime pay. (Trial Tr. at 54:16-56:12.)

6. Additionally, Plaintiff performed duties Heffernan directly assigned to him, including conducting research, attending meetings, and writing reports associated with the project to implement the City's emergency telephone 911 system, timekeeping duties, and independent research projects Heffernan assigned. (Trial Tr. at 231:20-232:9, 233:15-235:16.)

7. In May of 2000, Heffernan was removed as the authority figure in the BOE and Bart Vittori assumed responsibility for the administration of the BOE. (Trial Tr. at 58:4-7, 243:17-25.) On August 16, 2000, Brian Murphy succeeded Heffernan as the Deputy Commissioner of the BOE. (Trial Tr. at 844:16-845:6.) In that position, Murphy supervised and managed employees in the BOE, and he was supervised by John Sullivan. (Trial Tr. at 845:7-14.)

A. Aggravation of Plaintiff's injury

8. Vittori assigned Plaintiff job duties that involved handwriting and data entry and required repetitive use of his right arm. (Trial Tr. at 58:24-59:6, 244:15-17, 245:1-6.) Plaintiff did not immediately inform Vittori that he had any work restrictions. (Trial Tr. at 249:3-8, 250:2-4.) In late June of 2000, Plaintiff informed Heffernan and Hugh Donlan, the BOE's personnel liaison to the Department, that he was having problems performing the duties Vittori assigned. (Trial Tr. at 61:23-62:12, 250:8-10.) Heffernan told Plaintiff that he had been relieved of his authority and could not do anything to help him. (Trial Tr. at 61:23-25.) At that point, Plaintiff believed that it was Donlan's job to notify Vittori about his restrictions. (Trial Tr. at 250:25-251:1.) Nevertheless, Plaintiff performed the tasks Vittori assigned for over two months without telling Vittori that he was having problems. (Trial Tr. at 250:11-17.)

9. The swelling of Plaintiff's hand and arm worsened over those two months because of the additional data entry and writing tasks he was assigned, and on August

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7, 2000, his arm was so swollen that he could not even hold a pen, let alone perform his job duties. (Trial Tr. at 262:20-263:11, 271:4-6.)

10. On August 8, 2000, Plaintiff informed Vittori about his injury and told Vittori that he could not continue to perform the tasks Vittori had assigned him. (Trial Tr. at 262:5-9.) In response, Vittori told Plaintiff that Cliff Stevens, a supervising timekeeper in the BOE, was being transferred, and Vittori assigned Plaintiff to take over his duties. (Trial Tr. at 262:10-12, 630:24-631:4.) At that time, there were three other supervising timekeepers in the BOE. (Trial Tr. at 635:24-636:7.)

11. After Plaintiff was asked to assume Stevens's job duties, he told Donlan that he would not be able to perform all of those duties due to medical restrictions. (Trial Tr. at 636:14-20.) Plaintiff's injury was obvious at that point, and Donlan testified that he " could physically see that" Plaintiff had " an injury of some type." (Trial Tr. at 636:21-24.)

12. Stevens remained in the BOE until around August 18, 2000. (Trial Tr. at 267:25-268:2.) Thus, beginning on August 8th, when Plaintiff told Vittori he could no longer perform his assigned duties, he reported to work but did not perform any work duties. (Trial Tr. at 268:12-269:1.)

13. On August 15, 2000, Plaintiff's counsel sent a letter to Barbara Smith in the City's Corporation Counsel's office. (Pl.'s Ex. 49.) The letter informed Smith that Plaintiff had been assigned additional duties that he was unable to perform and requested that the City continue to accommodate Plaintiff's medical restrictions pursuant to the 1995 Agreement. ( Id. )

14. The following day, Smith had a conversation with Catharine Hennessey about Plaintiff's 1995 Agreement. (Trial Tr. at 567:6-568:4; Pl.'s Ex. 76.) Beginning in 1998, Hennessey worked for the Department as the labor relations liaison. (Trial Tr. at 520:7-15.) In that role, she was responsible for, among other things, accommodating injured employees by attempting to find them positions that they could perform with their medical restrictions. (Trial Tr. at 522:16-523:16, 827:1-7.) Hennessey knew that Plaintiff needed to be accommodated and specifically that he needed to avoid repetitive motions with his right hand. (Trial Tr. at 569:4-7; Pl.'s Ex. 76.)

15. Hennessey asked Donlan to write a job description for Plaintiff, which he did on August 18th. (Trial Tr. at 638:9-16, 639:1-11; Pl.'s Ex. 106.) The first paragraph of the memorandum described Plaintiff's duties at the time as Chief Timekeeper. (Trial Tr. at 639:12-18.) The second paragraph of the memorandum described new duties that Plaintiff would be responsible for effective August 18, 2000, when he took over Stevens's responsibilities. (Trial Tr. at 639:19-22; Pl.'s Ex. 106.) The new duties assigned to Plaintiff essentially described the job of a supervising timekeeper after the implementation of the Kronos timekeeping system. (Trial Tr. at 266:11-20, 639:23-640:3, 645:25-646:7.) They included:

maintaining a 240-employee payroll; receiving and entering 30-35 edits per day in the Kronos system; performing a mass edit in Kronos for 90 employees who work in the field; entering exceptions into the Kronos system; entering daily activity onto time rolls; maintaining 300 Cards; and, maintaining the Employee File Maintenance Module for said payroll.

(Def.'s Ex. 1.) Plaintiff testified that the first paragraph " pretty much" described what he had been doing all along, but the second paragraph assigned him the job of

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a supervising timekeeper in addition to his Chief Timekeeper tasks and consisted of tasks he could not physically perform. (Trial Tr. at 264:19-267:1.)

B. Medical evaluations and Plaintiff's workers' compensation claim

16. On or about August 23, 2000, Plaintiff received an order, signed by Hennessey, to report to Dr. Barry Lake Fischer for a fitness-for-duty evaluation. (Trial Tr. at 275:1-9; Pl.'s Ex. 77.) Dr. Fischer concentrated his practice on occupational medicine--primarily pre-employment examinations and evaluation of work-related injuries. (Trial Tr. at 420:20-22.) When a patient was referred to Dr. Fischer for a fitness-for-duty evaluation, he would first be interviewed by a medical technician to get the relevant history, and then he would meet with Dr. Fischer to go over that information. (Trial Tr. at 421:18-422:2.) Dr. Fischer would then " perform a focused examination on a particular part of the body that was involved in this clinical situation." (Trial Tr. at 422:2-4.) To properly perform a fitness-for-duty evaluation, Dr. Fischer has to refer to a job description provided by the employer to determine if the patient is physically qualified to perform that job. (Trial Tr. at 422:5-17.) If Dr. Fischer found a condition that inhibited a patient's ability to perform his or her job, Dr. Fischer would recommend certain accommodations. (Trial Tr. at 422:18-23.)

17. Dr. Fischer diagnosed Plaintiff with probable degenerative disc disease " with clinical evidence of right cervical radiculopathy." (Pl.'s Ex. 42.) Dr. Fischer found that Plaintiff had some atrophy in his arm, which indicated that Plaintiff had had cervical radiculopathy for some time. (Trial Tr. at 429:14-430:10; Pl.'s Ex. 42.)

18. Dr. Fischer was supplied with a job description so he could determine whether Plaintiff could or could not perform the job of Chief Timekeeper. (Trial Tr. at 426:18-25, 582:2-6.) Dr. Fischer determined that Plaintiff was qualified for his position as Chief Timekeeper with restrictions: limited use of his right arm in data input and lifting. (Trial Tr. at 426:10-15; Pl.'s Ex. 40.) Dr. Fischer faxed the results of the evaluation to Hennessey. (Trial Tr. at 425:20-22, Pl.'s Ex. 40.) Dr. Fischer also wrote a letter to Russell Baggett in the City's Personnel Department outlining the results of his evaluation in detail. (Trial Tr. at 428:9-429:4; Pl.'s Ex. 42.) Finally, Dr. Fischer recommended that Plaintiff be treated by his personal physician and that he receive an MRI of his cervical spine to determine whether or not he was a candidate for corrective surgery. (Trial Tr. at 427:16-18, 430:11-18.)

19. Dr. Fischer was shown the August 18th memorandum for the first time at trial. (Trial Tr. at 432:19-21.) Dr. Fischer testified that the second paragraph, which described the new duties, was not in the job description he was given to reference when he evaluated Plaintiff for fitness for duty. (Trial Tr. at 432:22-25.) Dr. Fischer further testified that Plaintiff " would have difficulty doing those things." (Trial Tr. at 433:8.)

20. Also on August 23, 2000, Plaintiff had an appointment with Dr. Gonzales. (Trial Tr. at 280:23-15.) Dr. Gonzales wrote a note that Plaintiff had " a work related injury involving his neck and right upper limb. He is to refrain from working until further notice due to his work related injury." (Pl.'s Ex. 41.) Plaintiff did not provide the note to anyone at the Department because he feared being put on unpaid leave. (Trial Tr. at 289:8-16.)

21. City employees who are injured request a " blue card," which allows the employee to see a City doctor at Mercy

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Works. (Trial Tr. at 723:15-17.) Without a blue card, an employee cannot go to Mercy Works. (Trial Tr. at 723:18-20.) City policy is that, without exception, a supervisor should give an employee who reports an injury at work a blue card. (Trial Tr. at 724:9-15, 726:1-2.) However, blue cards were not to be given out unless the injury occurred on duty or if the City " needed to find out from the City doctor if it was an injury on duty." (Trial Tr. at 725:19-22.)

22. On August 24, 2000, Plaintiff went to Donlan's office and requested a blue card. (Trial Tr. at 287:9-11.) Donlan called Hennessey; after the call, Donlan told Plaintiff that he could not give him a blue card. (Trial Tr. at 288:2-6.)

23. On September 1, 2000, Plaintiff filed a workers' compensation proceeding with the Illinois Industrial Commission to try to get medical treatment for his injury. (Trial Tr. at 88:21-25.)

24. On that same day, September 1, 2000, Plaintiff was transferred within the BOE to the Construction Division. (Trial Tr. at 89:1-8, 272:13-18.) He was assigned to answer phones. (Trial Tr. at 290:12-15.) Plaintiff had to use his left hand to answer phones. (Trial Tr. at 290:18-19.)

25. The Committee on Finance is a group comprised of City employees that oversees workers' compensation claims. (Trial Tr. at 442:2-9.) Dr. Gonzales was in the practice of sending bills to the Committee on Finance when he treated City employees who reported work-related injuries, such as Plaintiff. (Trial Tr. at 125:6-17.) Dr. Gonzales testified that normally, the Committee on Finance would mail him correspondence " either accepting responsibility for the injury and paying it, or denying responsibility for the injury." (Trial Tr. at 126:6-16.) He further testified that he sent Plaintiff's bills to the Committee on Finance and advised the Committee that Plaintiff's condition was work-related. (Trial Tr. at 127:3-8.)

26. On September 7, 2000, Dr. Gonzales sent a letter to the Committee on Finance stating that Plaintiff was " under [Dr. Gonzales's] care for treatment of injury sustained at work. The injury is a repetitive strain injury of the right upper limb." (Pl.'s Ex. 39; Trial Tr. at 129:5-130:11.) Dr. Gonzales's letter went on to explain what appropriate treatment of the condition would include and stated that it was " important that [Plaintiff's] treatment not be delayed. Significant delay in treatment will increase the likelihood that his condition will become refractory to treatment." (Pl.'s Ex. 39.) Dr. Gonzales never received a response from the Committee on Finance. (Trial Tr. at 138:18-23.)

27. On or around September 11, 2000, Donlan forwarded to Hennessey the note from Dr. Gonzales indicating that Plaintiff had a work injury and needed medical treatment. (Trial Tr. at 641:15-642:11.)

28. On or around October 7, 2000, Plaintiff was transferred within the BOE to the Transportation Division to answer phones. (Trial Tr. at 91:8-9, 92:4-9.) He answered phones in the Transportation Division until December 21, 2000. (Trial Tr. at 92:23-93:2, 290:20-22.) During that time, his workers' compensation claim was pending and he was unable to get medical treatment for his injury. (Trial Tr. at 93:3-8.)

29. On December 18, 2000, Dr. Gonzales wrote another letter stating: " [Plaintiff] is impaired by injury sustained at work. This injury affects his neck and right upper limb. I am requesting that he refrain from working until further notice due to his work related injury." (Pl.'s Ex. 43; Trial Tr. at 131:18-132:5.) Dr. Gonzales testified that Plaintiff's condition

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" was clearly worse, and he was getting worse as a result of the things that he was being asked to do at work." (Trial Tr. at 132:15-19.)

30. Dr. Gonzales never received a letter from the Committee on Finance " either accepting responsibility or denying responsibility or communicating in any other way regarding [Plaintiff]." (Trial Tr. at 127:9-14.) Dr. Gonzales testified that if he had received a letter from the Committee on Finance denying liability, he could have submitted Plaintiff's bills to his health insurance company so Plaintiff could get the medical care he needed. (Trial Tr. at 174:19-175:7.) However, Dr. Gonzales's contract with Plaintiffs insurance provider barred him from filing claims for injuries that were work-related unless his employer denied liability. (Trial Tr. at 173:23-174:18.)

31. On December 21, 2000, Donlan hand-delivered to Plaintiff a letter signed by Hennessey. (Trial Tr. at 294:6-16; Def.'s Ex. 2.) The letter states that the Department received letters from Dr. Gonzales dated August 23, 2000, and December 18, 2000, advising that Plaintiff was to refrain from working until further notice. (Def.'s Ex. 2.) The letter went on to state, in relevant part:

Furthermore, in various conversations, you have stated that you are unable to perform the duties required of your job title as Chief Timekeeper.
However, as you are aware, the duties and responsibilities of a Chief Timekeeper have changed in recent years. I have attached a current copy of your job description. With the present conditions in mind, we must inform you that the most viable option for you is to apply for a Leave of Absence, and to return to work when your physical condition allows you to perform the duties of your job title.
You may also request a Work Evaluation from the Department of Personnel to determine if your physical restrictions will allow you to perform in some other capacity in another job title.

(Def.'s Ex. 2.) Plaintiff testified that when Donlan handed him the letter, Donlan told him not to report back to work. (Trial Tr. at 297:22-23.)

32. Plaintiff did not apply for a leave of absence because he had already filed a workers' compensation claim with the Illinois Industrial Commission. (Trial Tr. at 299:3-10; see Pl.'s Ex. 115.) Upon receiving the letter, however, Plaintiff stopped going to work. (Trial Tr. at 301:12-16.)

III. Plaintiff's Medical Evaluations

33. On January 24, 2001, Plaintiff received a letter dated January 23, 2001, from Robert J. Serafin, the Director of Workers' Compensation in the City's Committee on Finance. (Trial Tr. at 102:4-12; Pl.'s Ex. 15.) The letter informed Plaintiff that an MRI scan of his cervical spine and an EMG test of his upper extremities had been scheduled for him at Mercy Hospital on January 26, 2001. (Pl.'s Ex. 15.) The referral form for the MRI indicated that Plaintiff was referred by Dr. Damon Arnold. ( Id. )

34. Dr. Arnold was the director of the occupational health network at Mercy Works. (Trial Tr. at 440:18-24.) In that role, he oversaw the operations, supervised other physicians, and treated patients. (Trial Tr. at 441:14-19.) He also acted as the liaison to the Committee on Finance and consulted on workers' compensation claims. (Trial Tr. at 442:2-9.) Mercy Works treated patients that were injured at work and performed routine physicals and drug screens. (Trial Tr. at 441:3-7.) The City was a major client of Mercy Works. (Trial Tr. at 441:8-13.)

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35. Plaintiff had never seen Dr. Arnold when he received the referral. (Trial Tr. at 103:5-12.)

36. Between January 24th and January 26th, Plaintiff received another letter from the office of Serafin, which was dated January 24, 2001. (Trial Tr. at 102:9-21, Pl.'s Ex. 16.) This letter advised Plaintiff that the Committee on Finance denied liability for medical care payments because it found his injury to be unrelated to his employment. (Trial Tr. at 748:25-749:3; Pl.'s Ex. 16.) Serafin testified that, to the best of his knowledge, the claim was denied because there was no accident report on file. (Trial Tr. at 795:3-7.)

37. When an employee is injured, he should request his supervisor to fill out an accident report, or a First Report of Injury. (Trial Tr. at 786:24-787:6.) When a supervisor learns of an injury on the job, he is supposed to fill out a First Report of Injury. (Trial Tr. at 729:15-24.) It is then the supervisor's responsibility to send the First Report of Injury to the Committee on Finance. (Trial Tr. at 788:19-22.) Upon receipt of the Report, the Committee on Finance starts a file. (Trial Tr. at 789:1-6.) An employee's workers' compensation file is maintained by the Workers' Compensation Division of the Committee on Finance. (Trial Tr. at 784:19-21.)

38. Alternatively, an employee can " file an adjustment of claim" with the Illinois Industrial Commission, and the Committee on Finance starts a file upon notification of that report. (Trial Tr. at 789:7-16.) Without the accident report, however, the Committee on Finance cannot process the claim and pay disability because it does not have the details of the injury, such as the date, time, description, and supervisor sign-off. (Trial Tr. at 789:17-790:3.) Thus, even if the Committee on Finance receives a Mercy Works discharge sheet indicating that an employee has a work-related injury, the Committee does not pay disability benefits until it receives a completed accident report. (Trial Tr. at 7-15.)

39. If the Committee on Finance does not receive a First Report of Injury for an individual, there is a form to be filled out to provide information about the injury and indicate that no First Report of Injury was filed. (Trial Tr. at 757:20-25.) When Serafin filled out that form with regards to Plaintiff, he marked Plaintiff as disabled and noted that his neck and right arm were injured. (Trial Tr. at 758:1-759:1.)

40. Serafin testified that denial letters like the one Plaintiff received were not final determinations, but could be reviewed later, as evidenced by the fact that Plaintiff was eventually paid temporary total disability. (Trial Tr. at 795:25-796:8.)

41. On January 26th, Plaintiff reported for his MRI scan with his referral from Dr. Arnold. (Trial Tr. at 104:6-11.) When it was discovered that Plaintiff had never seen Dr. Arnold and was ordered to get the scan by Serafin, Plaintiff was told that Serafin was not a doctor and he needed to see Dr. Arnold before the MRI scan could be performed. (Trial Tr. at 104:15-21, 105:1-5.) Plaintiff then made an appointment to see Dr. Arnold at Mercy Works on or around January 29th. (Trial Tr. at 104:22-25.)

42. Dr. Arnold examined Plaintiff for the first time on January 29, 2001. (Trial Tr. at 444:9-17.) Based on the examination and Plaintiff's medical history, Dr. Arnold concluded that Plaintiff had a work-related condition: radiculopathy of the upper extremity. (Trial Tr. at 444:15-445:4; Pl.'s Ex. 18.) Dr. Arnold ordered an MRI scan of Plaintiff's cervical spine for the following day, January 30th, and requested Plaintiff to return for a reevaluation on February 5th. (Pl.'s Ex. 18.) Dr. Arnold testified that the reason he ordered

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the diagnostic studies, the MRI scan and the electromyelogram, was to determine whether serious surgical intervention was required. (Trial Tr. at 466:1-12.)

43. The MRI scan revealed various osteophytes and a herniated disc, and it indicated multilevel disc disease. (Pl.'s Ex. 17.) Dr. Arnold testified that the results of the MRI scan supported his conclusions as to Plaintiff's cervical radiculopathy. (Trial Tr. at 447:9-11.) The significance of the MRI results was the indication " that there was something anatomical" -- specifically, degeneration and disk herniation. (Trial Tr. at 466:20-24.) Additionally, the electromyelogram revealed a delay in the nerve transmission between Plaintiff's shoulder and neck. (Trial Tr. at 466:24-467:11.) Dr. Arnold testified that the delay " could explain the feeling of radiculopathy, of having pain in the extremity." (Trial Tr. at 467:11-12.) Accordingly, Dr. Arnold referred Plaintiff to a neurosurgeon to determine the best course of treatment. (Trial Tr. at 471:4-14; Pl.'s Ex. 22; Pl.'s Ex. 23.)

44. On February 5th, Dr. Arnold noted that Plaintiff was still off duty due to a work-related condition and requested Plaintiff to return for a reevaluation on February 12, 2001. (Trial Tr. at 449:1-8; Pl.'s Ex. 19.)

45. On February 12th, Dr. Arnold noted that Plaintiff was still off duty due to a work-related condition and requested that Plaintiff follow up with his treating physician, Dr. Gonzales. (Trial Tr. at 451:20-24; Pl.'s Ex. 20.)

46. Finally, on a February 26th work status discharge sheet, Dr. Arnold discharged Plaintiff from his care. (Pl.'s Ex. 21.) Dr. Arnold was under the impression that Plaintiff would be working in an office setting. (Trial Tr. at 453:19-21.) Dr. Arnold indicated that Plaintiff could now perform sedentary work with limited use of his right upper extremity. (Trial Tr. at 452:19-453:2, 454:5-16; Pl.'s Ex. 21.) Dr. Arnold clarified that he meant that Plaintiff could work " a desk job," " sitting down and . . . doing things like minor office work." (Trial Tr. at 454:24-455:3.)

47. On subsequent work status discharge sheets from June 20, 2001, (Pl.'s Ex. 22), and July 9, 2001, (Pl.'s Ex. 23), Dr. Arnold similarly recommended that Plaintiff could perform " sedentary work as previously" with limited use of his right arm. Dr. Arnold testified that all the forms he filled out were sent to the Workers' Compensation division of the Committee on Finance so the Committee could determine whether the visit " should be processed as a workers' compensation claim or denied." (Trial Tr. at 457:18-458:11.)

48. In 2001, Jack Drumgould was the assistant commissioner in charge of personnel in the Department. (Trial Tr. at 821:21-822:8.) Drumgould received Mercy Works work status discharge sheets for all six bureaus within the Department. (Trial Tr. at 823:14-23.) Drumgould testified that the standard procedure he followed when he received a discharge sheet was to contact a deputy or personnel liaison to meet with the duty-disabled employee to determine whether there existed a position within their bureau that could accommodate the employee. (Trial Tr. at 823:14-23.) Drumgould testified that after a bureau accepted an employee with his restrictions, Drumgould would send a copy of the Mercy Works discharge sheet to the Committee on Finance so it would remove the individual from duty disability or workers' compensation. (Trial Tr. at 824:23-825:1.) He would then send a copy to his staff so they could complete the paperwork necessary to restore the individual to the Department's payroll. (Trial Tr. at 825:1-4.)

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49. Drumgould received Dr. Arnold's February 26, 2001 discharge sheet indicating that Plaintiff could perform sedentary work with certain restrictions. (Trial Tr. at 822:14-823:6.) Drumgould wrote on the sheet, " Cannot accommodate with restrictions" and signed and dated it on February 26, 2001. (Trial Tr. at 823:2-9; Pl.'s Ex. 89.) Drumgould stated that at that time, " there was no bureau or no position that could accommodate" Plaintiff's restrictions. (Trial Tr. at 823:12-13.) Drumgould also wrote on Plaintiff's discharge sheet, " CAN accommodate in Bureau of Traffic Services with restrictions as of 3-02-01." (Trial Tr. at 824:5-9; Pl.'s Ex. 89.)

IV. Plaintiff's Detail to the Bureau of Traffic Services

50. Plaintiff returned to work and was " detailed" to the Bureau of Traffic Services (" Traffic Services" ); a detail is a temporary assignment and means that Plaintiff was still being paid from the BOE's budget and still held the title of Chief Timekeeper, but was being utilized by a different bureau in the Department. (Trial Tr. at 886:22-887:5.) The expectation was that once Plaintiff was again able to perform the Chief Timekeeper duties, he would return to the BOE assuming that the function was still needed. (Trial Tr. at 887:6-10.)

51. It was not uncommon for employees in the City, and particularly in the Department, to perform duties outside the scope of their job title. (Trial Tr. at 896:15-19.) They held one official job title and were paid as though they were in that position, but they performed the tasks of a different title. (Trial Tr. at 410:15-21.) John Sullivan, the Managing Deputy Commissioner at the Department who oversaw all of the bureaus in the Department and supervised each bureau's deputy commissioner, (Trial Tr. at 697:4-15), testified that the Department of Personnel would need to be involved in order to change an official job description. (Trial Tr. at 703:8-11.) He testified, however, that the official job ...


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