United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Plaintiff LuzMaria Arroyo worked at Defendant Volvo Group North America, LLC (d/b/a Volvo Parts North America) from June 2005 until November 2011. In Plaintiff's third amended complaint, she alleges discrimination, retaliation, and failure to provide reasonable accommodations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. ("USERRA"), along with a state law claim for intentional infliction of emotional distress. Defendant has moved for summary judgment  on all counts. For the reasons stated below, the Court grants Defendant's motion for summary judgment .
A. Statement of Facts
The Court has taken the relevant facts from the parties' Local Rule ("L.R.") 56.1 statements. Local Rule 56.1 requires a party moving for summary judgment to submit a statement of material facts as to which the movant contends there is no genuine issue and entitles the movant to judgment as a matter of law. As the Seventh Circuit has stressed, facts are to be set forth in Rule 56.1 statements, and it is not the role of the Court to parse the parties' exhibits to construct the facts. Judges are not "like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). "Nor are they archaeologists searching for treasure." Jeralds ex rel. Jeralds v. Astrue, 2010 WL 4942161, at *7 (N.D. Ill.Dec. 8, 2010) (citing DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999)). It simply is not the court's job to sift through the record to find evidence to support a party's claim. Davis v. Carter, 452 F.3d 686, 692 (7th Cir. 2006). Rather, it is "[a]n advocate's job * * * to make it easy for the court to rule in [her] client's favor * * *." Dal Pozzo v. Basic Machinery Co., Inc., 463 F.3d 609, 613 (7th Cir. 2006).
It is the function of the Court to review carefully statements of material facts and to eliminate from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement. See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004). Merely including facts in a responsive memorandum is insufficient to put issues before the Court. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th Cir. 1995); Malec v. Sanford, 191 F.R.D. 581, 594 (N.D. Ill. 2000). In addition, Local Rule 56.1 requires that statements of facts contain allegations of material fact and that factual allegations be supported by admissible record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). Where a party improperly denies a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems that statement of fact to be admitted.
In this case, some of Plaintiff's fact statements and responses to Defendant's fact statements contain legal conclusions or are irrelevant to the issues at hand. For instance, Plaintiff's first fact statement posits:
This one fact statement alone contains numerous legal conclusions and argument. The Court's role is to decide if there is a question of fact as to whether Defendant violated USERRA, the ADA, Title VII, or state law; the parties' role is to present the Court with facts (not legal conclusions) that support their position on the law. To the extent that either party's statements or responses contain legal conclusions or argument, are evasive, are irrelevant, or are not supported by evidence in the record, they will not be considered by the Court in ruling on the summary judgment motion.
Plaintiff LuzMaria Arroyo was employed as a material handler for Volvo at its Chicago Parts Distribution Center (the "Distribution Center") in Joliet, Illinois, from June 13, 2005 until she was fired on November 8, 2011. In Arroyo's employment application, she stated that she was a member of the U.S. Army Reserve, and Volvo hired her as a material handler with that knowledge. Arroyo interviewed with Director of Distribution Keith Schroeder and Material Handling Supervisors Michael Temko and Patrick Dunn. As a material handler, Arroyo was responsible for retrieving ordered vehicle parts with a forklift and then packing those items to ship to the customer on a timely basis. Beginning in January 2009, Arroyo worked the second shift, from 4:30 p.m. to 12:30 a.m.
During Arroyo's employment, no other employees at the Distribution Center were on active duty and subject to military orders. Throughout her employment, Volvo granted Arroyo leave for military activities, including military drills, training, and Yellow Ribbon events, as well as for two extended periods of deployment: April 17, 2006 to May 7, 2007, and April 15, 2009 to August 15, 2010. When Arroyo returned from her latest deployment to Iraq in April 2010, she used some accrued military vacation time and was released from active duty on August 15, 2010. Arroyo then took some additional time off before returning to work on September 27, 2010. Upon her return, Volvo offered Arroyo a voluntary severance package, which Volvo had previously offered to other material handlers while Arroyo was on leave in 2009. Arroyo declined the offer. In sum, Arroyo received more than 900 days of military leave during six and a half years of employment at Volvo.
Arroyo also took leave for weekend drills. Volvo modified Arroyo's work schedule to allow her to arrive to her shift two hours early and leave two hours early on Fridays prior to a weekend drill. Although Arroyo initially agreed to the modified work schedule, she later claimed that the arrangement was unsatisfactory because it did not give her enough time to get ready to drill. Through a mediation conducted by Colonel Tom Gorski of ESGR throughout March and April 2011, Volvo accommodated Arroyo's request by changing her Friday schedule to 4:30 to 7:00 and allowed Arroyo to take 5.5 hours of excused military leave. Through the mediation, Volvo also resolved issues concerning Arroyo's health insurance coverage upon her return to work, catch-up 401(k) contributions, and paid military leave for Yellow Ribbon events.
Throughout these multiple tours of duty, weekend drills, and annual training, Keith Schroeder was able to find a replacement for Arroyo when she was otherwise engaged in service for her country. However, both Schroeder and Arroyo's supervisor, Michael Temko, questioned human resources and management about how to handle Arroyo's various leave requests, what rights (such as leave, travel, and rest time) were provided under USERRA, and what information Arroyo was required to provide to Volvo prior to or during requested leave time. Temko kept track of Arroyo's military schedule and her excused and unexcused absences.
All material handlers at the Distribution Center are subject to the Volvo's attendance policy. Pursuant to the policy, employees receive "occurrences"-either whole or fractional- for inexcusable absences or tardiness. For each occurrence, Volvo looks back both four weeks and six months from the date of the most recent occurrence to see if an employee has accrued enough occurrences to warrant a step in the progressive disciplinary process. Corrective action will be taken if an employee has two occurrences within a four week period or five occurrences within a six month period, calculated on a rolling fiscal year. The disciplinary steps under the attendance policy are: verbal warning, formal written warning, three-day suspension, and termination. Depending on how near an employee's occurrences are to one another, an employee may receive more than one disciplinary step at the same time, as the same occurrence can count for purposes of multiple disciplinary steps, given the look-back periods discussed above. If an employee has a six-month period with no occurrences, the employee's disciplinary "level" is reduced by one step.
The attendance policy has undergone periodic revision. In January 2008, the unwritten grace period that allowed employees to punch in up to two minutes after the beginning of their shifts was eliminated due to employee abuse. In January 2009, absences other than earned time off ("ETO")/vacation weeks and scheduled holidays no longer counted towards the rolling time period. Arroyo was present for and signed for receipt of an "Employee Infosession" in January 2009 concerning policy changes.
The attendance policy is administered jointly by Temko and Schroeder. Temko is responsible for documenting any occurrences for each employee on an Excel spreadsheet after reviewing the time punch records. Temko and Schroeder are then responsible for administering disciplinary steps under the policy. Arroyo was subject to the policy since the beginning of her employment with Volvo. Although Volvo kept tabs on Arroyo's military leave requests, the record is undisputed that she never received any occurrences under the Volvo's attendance policy for days on which she took military leave. For instance, on November 19, 2008, Schroeder received communication from Arroyo's local army unit stating that she had orders from November 12 to November 26, which were not issued until November 14. Schroeder expressed his frustration that if she had received these orders on November 14, then she should have either called or faxed the orders; however, in an email to Temko, he noted that "[w]hile I have issues with her lack of communication, we likely have no recourse due to her military service."
In 2009, Arroyo received a verbal warning for earning two occurrences as a result of two no call, no shows within a four week period from October 13, 2008 to October 24, 2008. On October 1, 2010, Arroyo punched in 22 minutes after the beginning of her shift and earned a one-half (0.5) occurrence under the attendance policy. On October 11, 2010, Arroyo punched in 20 minutes after the beginning of her shift and earned a one-half (0.5) occurrence under the attendance policy. On October 19, 2010, Arroyo called-in absent for work and earned one (1) occurrence under the attendance policy. Following Arroyo's October 19, 2010 absence, Schroeder met with Arroyo and told her the absence would be excused if she provided a doctor's note. Arroyo explained that she had an upcoming health assessment on October 25, 2010, and could ask her doctor for a note excusing the October 19th absence then. However, Arroyo never provided such a note.
On October 29, 2010, Schroeder presented Arroyo with a Corrective Action Plan ("CAP") in the form of a verbal warning-the first step in the progressive disciplinary process under the attendance policy-for the two occurrences she earned within a one-month period from October 1, 2010 to October 19, 2010. On October 29, 2010, Arroyo punched in one minute after the beginning of her shift. Because Arroyo had two occurrences within a one-month period, she received a written warning, which is the second step in the disciplinary process. Arroyo challenged this occurrence and any disciplinary action stemming from October 29, 2010, contending that she was unaware of the change to the attendance policy that eliminated the previous unwritten rule of the two-minute grace period. Although Schroeder verified that Arroyo was present for the January 2009 "Employee Infosession" mentioned above, Schroeder made an exception and did not give Arroyo an occurrence or the second step in progressive discipline under the attendance policy based on her one-minute transgression on October 29. On November 4, 2010, Arroyo was provided with copies of various Volvo policies, including the attendance policy. On November 23, 2010, Arroyo punched in two minutes after the beginning of her shift and earned a one-half (0.5) occurrence under the policy.
Arroyo was treated for service-related post-traumatic stress disorder ("PTSD") in December 2010 and formally diagnosed in January 2011. Arroyo went to the Adventist LaGrange Memorial Hospital on December 23, 2010. She provided a note and discharge paperwork excusing her from work for the period of December 23, 2010 through December 30, 2010. Arroyo was subsequently approved for and took concurrent FMLA and short-term disability ("STD") leave from December 23, 2010 to March 22, 2011. She returned to work from FMLA/STD leave on March 23, 2011.
In April 2011, Arroyo filled out an indirect report (a document that material handlers use to document any time not spent picking or packing orders) and indicated that she "zoned out" for an unknown period of time during her shift. Arroyo provided these reports on a daily basis to Dunn-her direct supervisor at the time. Based on this comment, Volvo had safety concerns for Arroyo and her co-workers, given that much a material handler's job entails picking items with a forklift up to 20 feet off the ground. Accordingly, and at Volvo's request, John J. Koehler, M.D., conducted an independent medical exam ("IME") of Arroyo on April 14, 2011. Based on his evaluation of Arroyo, Dr. Koehler recommended that Arroyo be removed from all safety sensitive work, including operation of a forklift. Based on that recommendation, Volvo removed Arroyo from forklift duties.
Arroyo began therapy for her PTSD. Volvo, through Regina Williams (Human Resources Business Partner), allowed Arroyo to use partial ETO days (in two hour increments) to leave her shift early on Tuesday nights to attend her first set of VA therapy appointments on Wednesday mornings from 9:00 to 11:00 a.m.; these appointments ran from April through July 2011.
On May 19, 2011, Arroyo attempted to sign up to work overtime for that upcoming Saturday, May 21, 2011. Dunn, Schroeder, and Williams explained that Arroyo was not eligible to work overtime on Saturdays due to her then-existing restrictions from Dr. Koehler, as the Saturday work involved use of a forklift. In response, Arroyo complained via email to Williams on May 20, 2011, that she felt discriminated against under the ADA. Arroyo arrived at the warehouse on Saturday, May 21, 2011, even though she was not scheduled to work, and observed employees packing boxes and strapping containers. Arroyo stayed there "[m]aybe ten minutes max" and testified in her deposition that she does not know how long employees perform packing duties on Saturdays. Arroyo sent a follow-up email to Williams on May 21, 2011, describing her observations and reiterating her perception that she was being discriminated against under the ADA. Following Arroyo's complaints of discrimination, Schroeder sent the following email to his supervisors: "Due to the ongoing job issues and concerns with LuzMaria Arroyo I strongly urge you to have a witness whenever you have a conversation with this employee." Schroeder testified that he made this recommendation due to recent communications with Arroyo and a desire to make sure that supervisors got support before answering her requests.
Arroyo took military leave from May 31, 2011 through July 8, 2011, and returned to work on July 11, 2011. Shortly after her return, Dr. Koehler conducted a follow-up evaluation of Arroyo, and, contingent upon receipt of a letter from Arroyo's counselor, Koehler released Arroyo back to full-duty without restrictions. After Dr. Koehler released her to full-duty, Arroyo periodically worked overtime, including weekend overtime.
Arroyo's second set of PTSD therapy appointments were on Tuesday evenings from 4:00 to 5:30 p.m. and ran from July 19, 2011 through October 11, 2011. Due to rush hour traffic, Arroyo told Schroeder that she would not be at work before 6:30 p.m. on those days. Although Arroyo punched in after 6:30 p.m. on 11 of those Tuesdays, she ...