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Buhe v. Amica Mutual Insurance Co.

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

February 13, 2018

TIMOTHY BUHE, Plaintiff,



         Plaintiff Timothy Buhe brings this suit against his former employer, defendant Amica Mutual Insurance Company (“Amica”), asserting claims of discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., as well as retaliatory discharge and promissory estoppel under Illinois law. Defendant has moved for summary judgment. For the following reasons, defendant's motion is granted in part and denied in part.


         This case arises from a grievous injury that plaintiff suffered in 2013 while working for defendant, an insurance company, as a Senior Claims Adjuster. Plaintiff's job, which he had held since 1994, was to investigate and adjust bodily injury claims stemming from auto accidents or property damage claims made by homeowners. (Pl.'s LR 56.1 Resp. ¶¶ 3-5, ECF No. 36.) On February 25, 2013, while adjusting a claim, plaintiff fell off of a policyholder's roof, injuring himself. (Id. ¶ 16.) Plaintiff suffered a broken ankle that required two pins with internal fixation, a torn meniscus in each knee, back pain, and a rotator cuff tear in his right shoulder. (Id. ¶ 17.) Marvin Konkle, plaintiff's supervisor and the manager of the Lisle, Illinois branch office out of which plaintiff was based, promptly provided notice of the incident to the Chubb Group of Insurance Companies, defendant's worker's compensation insurance carrier, and plaintiff filed a workers' compensation claim on June 5, 2013. (Id. ¶¶ 6-8, 20-21.) At the time, plaintiff was on a form of “probation, ” having received an Initial Warning of Termination in August 2012 for dress code violations; missing an after-hours call while on on-call duty; slowness in completing auto expense reports, estimates, and assignment downloads; and lax documentation in the claims files assigned to him. (Id. ¶ 44; see Def.'s LR 56.1 Stmt., Tab 2, Buhe Dep. at 118:23-128:22, ECF No. 32-3; id., Buhe Dep. Ex. 9, ECF No. 32-6 at 18-19.)

         On March 13, 2013, plaintiff requested an eight-week disability leave, beginning March 1 and ending on May 1, 2013. (Pl.'s LR 56.1 Resp. ¶ 22.) On May 14, 2013, plaintiff told John Grikas, who worked in human resources for defendant, that his injuries required multiple surgeries and he would probably be unable to return to work until late summer or early fall. (Id. ¶ 23.) On September 9, 2013, Grikas received an email from Ashley Sullivan, a “Relocation Coordinator” at Amica whose responsibilities included facilitating workers' compensation claims and exchanging information with Amica's workers' compensation insurers. (Def.'s LR 56.1 Stmt., Tab 5, Grikas Dep. Ex. 7, ECF No. 32-14 at 133; see id., Tab 6, Sullivan Aff. ¶¶ 2-3.) Sullivan reported that she had discussed plaintiff's workers' compensation claim with the Chubb adjuster assigned to his case, and she had learned that plaintiff's treatment was not yet nearing a conclusion, as he would likely need additional surgeries. (Id., Tab 5, Grikas Dep. Ex. 7, ECF No. 32-14 at 133.) Sullivan wrote, “I advised the adjuster that we can provide light duty work for Tim but she feels that the doctors will not agree to this. She asked if we can have Tim work from home. From my perspective, I don't recommend that we provide a work from home accommodation because this tends to pro-long [sic] the WC claim.” (Id.)

         On September 20, 2013, Grikas sent plaintiff a letter explaining that plaintiff had not yet indicated when he anticipated returning to work and had already taken six months of disability leave, the maximum amount allowed by defendant's employee handbook-although Grikas recognized that Amica could extend the leave, at its own discretion, based on its business needs and any information it might receive about plaintiff's anticipated return date. (Id. ¶ 27; see also Id. ¶ 11 (quoting language of disability leave policy); Def.'s LR 56.1 Stmt., Tab 2, Buhe Dep. Ex. 18, September 20, 2013 Grikas Letter, ECF No. 32-6 at 51.)

         On October 9, 2013, Grikas sent plaintiff a letter enclosing two copies of a Separation Agreement and Release, in which defendant offered plaintiff several months' pay in exchange for agreeing to terminate his employment with defendant and release any claims against Amica arising out of the employment relationship. (Pl.'s LR 56.1 Resp. ¶ 31; Def.'s LR 56.1 Stmt., Tab 2, Buhe Dep. Ex. 20, October 9, 2013 Grikas Letter, ECF No. 32-6 at 54.)

         On October 16, 2013, plaintiff responded to the October 9 letter by sending an email to Grikas. (Pl's LR 56.1 Resp. ¶ 34.) The email states as follows:

Thank you for your letter of October 9, 2013. My review of the Employee handbook notes that the maximum duration of a disability leave is GENERALLY six months. I am confused by this language. Does that mean that some employees are granted an extension of leave in addition to the six months?
Can you please clarify the reason for my proposed termination noted in the Separation Agreement?
I have been a loyal employee of Amica Mutual Insurance for 22 years. My unfortunate injuries causing my disability were due to being injured during the course of employment. I expected to be treated with good faith due to my years of service. I pray that I make a full recovery from my injuries after all surgeries and physical therapy are completed. I am currently being paid by workers compensation. Therefore, the cost of keeping me as a salaried employee is nominal. I have a family to provide for now and for many years to come.
I am respectfully requesting an extension to my leave in order to return to work in the near future with reasonable accommodations. I can not [sic] return to work until all surgical procedures are completed based on workers compensation laws.[1]
Please let me know if this is possible. Otherwise, I have questions regarding the proposed separation agreement. . . .
Timothy J. Buhe

(Def.'s LR 56.1 Stmt., Tab 2, Buhe Dep. Ex. 21, October 16, 2013 Buhe Email, ECF No. 32-6 at 59.)

         The following day, Grikas sent Buhe an email in response, in which he provided Buhe with the information Buhe had requested and admonished him, “the business needs of [your department and branch] are such that your position will be required to be filled unless your doctor(s) advises us that you may return to work in the near future.” (Id., Buhe Dep. Ex. 22, October 17, 2013 Grikas Email, ECF No. 32-6 at 60.) In bold typeface, Grikas requested, “By no later than Thursday, October 31, 2013, please provide us with updated medical documentation to provide an anticipated date for your return to work” because “Amica is under no obligation to allow you to have an open-ended Leave of Absence.” (Id.)

         On October 31, 2013, Buhe sent an email to Grikas outlining a time frame for his return to work and attaching a letter from his doctor. (Id., Buhe Dep. Ex. 23, October 31, 2013 Buhe Email, ECF No. 32-6 at 61.) Buhe stressed that he was “not requesting an open ended leave of absence, ” he had been “a loyal employee for . . . 22 years, ” he needed to remain employed to provide health insurance for his sons, and he was “pray[ing]” that Amica “understands the situation” and would allow him to “finish [his] professional career over the next 20 years.” (Id.) The attached letter from plaintiff's doctor, Dr. Corcoran, stated that plaintiff was scheduled to undergo a surgical procedure on his right knee on November 11, 2013, from which plaintiff would need two to three months to fully recover. (Id., Dr. Corcoran Letter, ECF No. 32-6 at 62.) However, plaintiff would be able to return to work on “light duty (sitting job[, ] minimal walking) about 3-4 weeks” after the procedure, “if all goes as planned.” (Id.) Dr. Corcoran also described a further surgical procedure, not yet scheduled, that plaintiff would have to undergo on his right shoulder, after plaintiff had fully recovered from his knee surgery, and which would require another lengthy recovery period. (Id.) After the shoulder surgery, plaintiff would be out another six to eight weeks, when he would be able to return on “some form of light duty.” (Id.)

         In early November 2013, Grikas and plaintiff spoke by phone. (Pl.'s LR 56.1 Resp. ¶ 39.) Grikas asked plaintiff if he intended to return to work on light duty three to four weeks after his upcoming knee surgery, and plantiff responded that that was his intention. (Id. ¶¶ 39-40.) In late November and early December, Grikas and Buhe traded voicemails about setting up a meeting between Buhe and Konkle. (Id. ¶ 52.) Buhe told Grikas on December 2, 2013, that he had an appointment with Dr. Corcoran the next day and he would have a better idea of exactly when he could return to work after that appointment, and he agreed to meet with Konkle on December 10, 2013. (Id. ¶ 53.)

         On or about November 8, 2013, the Chubb adjuster contacted Ashley Sullivan to report that she had been conducting video surveillance on plaintiff in connection with his workers' compensation claim, and it appeared that plaintiff was actively working at Electra Mortgage Solutions (“EMS”) while collecting workers' compensation benefits. (Id. ¶ 45.) Sullivan relayed this information to Grikas, and Grikas was able to verify some of it independently. (Id. ¶¶ 46-47, 50.) Plaintiff had not previously told either his supervisor Konkle or Grikas about this outside employment at EMS. (Id. ¶ 51.)

         Plaintiff founded EMS in 2007 and currently serves as its president and owner. (Id. ¶ 48.) EMS's business is originating mortgage loans, and plaintiff has operated the business as a second job for a few hours per week since its founding, although he has had a second career as a mortgage loan originator for much longer, since 1999. (Def.'s LR 56.1 Stmt., Tab 2, Buhe Dep. at 47:13-58:16.) Plaintiff has held a mortgage loan originator license since 2005, when Illinois began to require mortgage originators to hold such licenses. (Pl.'s LR 56.1 Resp. ¶ 49; Def.'s LR 56.1 Resp. to Pl.'s Stmt. of Add'l Facts ¶ 5, ECF No. 38.) Plaintiff sometimes sold mortgages to his co-workers, including his former supervisor, Gina Thies, and while he never received formal approval from Amica to work a second job as a mortgage loan originator, he believed it was generally common knowledge throughout the office at Amica that he was selling residential mortgages on the side. (Def.'s LR 56.1 Resp. to Pl.'s Stmt. of Add'l Facts ¶¶ 1-4; Def.'s LR 56.1 Stmt., Tab 2, Buhe Dep. at 47:13-58:16.) He had previously received formal approval from Amica for separate outside employment: in 2005, Konkle learned that plaintiff had held outside employment at a furniture store for the previous eight years, and after discussing it with plaintiff, he made a note in plaintiff's personnel file that the outside employment did not present a conflict of interest. (Def.'s LR 56.1 Resp. to Pl.'s Stmt. of Add'l Facts ¶ 6.)

         On December 9, 2013, Grikas sent Konkle an email, suggesting that he ask Buhe about his outside employment to verify whether the information he had received from Chubb was correct and whether plaintiff could shed additional light on the matter. (Pl.'s LR 56.1 Resp. ¶ 54.) At their meeting on December 10, Konkle asked plaintiff about his affiliation with EMS and whether it complied with the company's policies on outside employment. (Id. ¶ 55.) Amica's Outside Employment policy states, “There may be occasions when, in our opinion, holding a second job would present a conflict of interest or adversely affect your performance at Amica. Our policy requires that we be notified if you have or are planning to obtain outside employment.” (Id. ¶ 10.) Additionally, Amica maintains a Statement of Amica Claims policy, which states, “No employee shall hold a broker's, agent's, private detective's or realtor's license of any sort, or function as such, without express written approval by the Claims Executive Department, unless sponsored or otherwise approved in writing by the Office of the Secretary, ” and warns that violation of the policy is grounds for termination. (Id. ¶ 14.)

         Plaintiff told Konkle that someone else oversaw the office activities of EMS for him and he did not view his license as a violation of the company policy against broker's licenses, but he became “leery” of discussing the matter without speaking with his attorney. (Id. ¶ 55.) On December 17, 2013, Konkle attempted to set up a second meeting with plaintiff, but plaintiff responded via email as follows:

I have consulted with my attorney, Mr. Mark Hickey, regarding our previous . . . meeting and this most recent request for a meeting. I was told by Mr. Grikas that the last meeting . . . was to set up the light duty arrangement for my return to work once released by my physician. However, this was not discussed during our last meeting. The ...

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