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Arroyo v. Volvo Group North America, LLC

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

September 30, 2019

LUZMARIA ARROYO, Plaintiff,
v.
VOLVO GROUP NORTH AMERICA, LLC, d/b/a VOLVO PARTS NORTH AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr., United States District Judge.

         Plaintiff LuzMaria Arroyo sued Defendant Volvo Group North America, LLC, d/b/a Volvo Parts North America (“Volvo”) for discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. (“USERRA”). Before the Court are (1) Defendant's motion for judgment as a matter of law, or, in the alternative, a new trial, or, in the alternative, remittitur and amendment of judgment [192] and (2) Plaintiff's motion to alter judgment [204]. For the reasons set forth below, Defendant's motion [192] is granted to the following extent: the Court will enter judgment as a matter of law in favor of Defendant on Plaintiff's ADA discrimination claim and grant a new trial on Plaintiff's USERRA claim. Defendant's remaining requests for relief are denied. In addition, the Court denies Plaintiff's motion to alter judgment [204] in its entirety as moot. This case is set for further status hearing on October 10, 2019 at 9:30 a.m.

         I. Background

         A. Procedural History

         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, Plaintiff alleged 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. [See 51.] The Court granted summary judgment against Plaintiff and in favor of Defendant on all claims. The Seventh Circuit affirmed the Court's ruling with respect to Plaintiff's claims for retaliation, failure to accommodate, intentional infliction of emotional distress, and with respect to the Court's analysis of Plaintiff's ADA discrimination claim under the now defunct “indirect method” of proof. However, the Seventh Circuit reversed the Court's ruling with respect to Plaintiff's USERRA claim and Plaintiff's ADA discrimination claim under the “direct method” of proof.

         After a trial on the merits of Plaintiff's remaining ADA and USERRA claims, a jury returned a verdict in favor of Plaintiff on both claims. [See 161.] The jury awarded Plaintiff $2, 600, 000.00 in compensatory damages and $5, 200, 000.00 in punitive damages on Plaintiff's ADA discrimination claim. [Id. at 2.] The jury concluded that Defendant did not prove its affirmative defense under USERRA by a preponderance of the evidence. [Id. at 3.] The jury further concluded that Defendant willfully violated the USERRA when it terminated Plaintiff's employment. [Id.] After post-trial briefing, the Court awarded Plaintiff $141, 388.53 in back pay, $84, 131.92 in front pay, $41, 348.61 in other employment-related compensation, $8, 546.10 in prejudgment interest, and $275, 415.16 in liquidated damages. [177, at 1.] Pursuant to 42 U.S.C. § 1981a(b)(3), the applicable damages cap under the ADA, the Court also reduced the jury's $2.6 million compensatory damages award to $300, 000 and vacated the jury's $5.2 million punitive damages award. [Id.] The Court denied all other forms of equitable relief. [Id.] Defendant filed a motion for judgment as a matter of law, or, in the alternative, a new trial, or, in the alternative, remittitur and amendment of judgment [192]. Plaintiff filed a motion to alter judgment [204]. These motions currently are before the Court.

         B. Plaintiff's Early Employment and Military Service

         The trial evidence established that Plaintiff was employed as a material handler at Defendant's facility in Joliet, Illinois from June 2005 until her employment was terminated in November 2011. When Plaintiff began her employment with Defendant, she was in the Army Reserves. [Tr. 1059.] Plaintiff informed Defendant of her status as an active reservist in the Army by noting it on her resume. [Tr. 492.] Throughout her employment, Plaintiff was subject to the facility's attendance policy (the “Attendance Policy”), which was administered by supervisors Keith Schroeder and Michael Temko. After Plaintiff was employed with Defendant for a couple months, she had a discussion with Schroeder and Human Resources Manager Celia Jarvis (who was present telephonically) about time off of work to travel to and from Fort Benning, Georgia for Plaintiff's Army Reserves duties. [Tr. 807.] During that discussion, Jarvis told Plaintiff that the extra time she needed to travel to and from Fort Benning was not authorized. [Tr. 807-08.] Plaintiff responded that the time should be authorized under USERRA. [Tr. 808.]

         Plaintiff presented emails indicating that Plaintiff's supervisors were unhappy with Plaintiff taking time off to travel to and from her military service in Fort Benning, Georgia. [See, e.g., 205-1 (Pl.'s Ex. 19); 205-2 (Pl.'s Ex. 20); 205-3 (Pl.'s Ex. 21); 205-4 (Pl.'s Ex. 22); 205-6 (Pl.'s Ex. 24); 205-7 (Pl.'s Ex. 25); 205-8 (Pl.'s Ex. 32); 205-9 (Pl.'s Ex. 50).] For example, Plaintiff presented an email in which Temko questioned Plaintiff about why she needed the additional travel time. [205-1 (Pl.'s Ex. 19), at 2.] Temko also emailed Schroeder to ask whether Defendant was required to provide this time for travel. [205-3 (Pl.'s Ex. 21), at 1-2.] Schroeder forwarded the inquiry to Bruce Olin, stating “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty * * * I certainly give her credit for serving our country but of course I am also responsible for our business needs.” [Id. at 1.]

         On October 28, Olin responded to an earlier email from Schroeder discussing various legal authorities provided by Plaintiff, stating:

First, we do not have to grant time off for [Plaintiff's] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.

[205-4 (Pl.'s Ex. 22), at 1.] Schroeder forwarded the email to Temko, predicting “LuzMaria will challenge us.” [Id.] As noted by the Seventh Circuit, the advice regarding travel time initially given by Defendant was wrong. [110, at 4.] Jarvis did additional research and concluded that the law treats voluntary and involuntary orders the same, and Plaintiff was entitled to travel time plus an eight-hour rest period following her drill before having to report to work. [205-7 (Pl.'s Ex. 25), at 1.][1] Plaintiff also presented emails in which supervisors complained about a lack of communication from Plaintiff regarding her military leave. [205-1 (Pl.'s Ex. 19), at 2 (Temko); 205-9 (Pl.'s Ex. 50), at 1 (Schroeder).] Temko sent an email to Schroeder and others discussing the benefits to Defendant of Plaintiff transferring to a local Reserve facility in Darien, Illinois so that she would not have to travel to Georgia anymore. [225-1 (Pl.'s Ex. 40); Tr. 542-44.] According to Plaintiff, in 2007, after she returned from a tour of duty in Iraq, Schroeder told her that her military service was becoming an undue hardship on the company and that it would greatly help the company if Plaintiff could move to a local unit. [Tr. 817-18.]

         After Plaintiff forwarded to her supervisors materials regarding Defendant's obligations under USERRA, Plaintiff's supervisor Sherrie Jankowski stated that Plaintiff was “becoming a pain with all this.” [211-3 (Pl.'s Ex. 107).] Jankowski testified that she simply meant that Plaintiff was being burdensome by forwarding materials relating to USERRA to Jankowski and not to Schroeder, as had been requested. [Tr. 333.] Plaintiff also asserts that Jankowski and Schroeder did nothing to curtail rumors in the workplace that Plaintiff was on vacation in Hawaii. In support of that assertion, Plaintiff cites to an email from Jankowski to Schroeder discussing these rumors and testimony in which Jankowski explained that she told employees to stop spreading rumors. [211-5 (Pl.'s Ex. 124); Tr. 338-344.]

         Plaintiff was deployed twice during her time working for Defendant-these deployments were from April 17, 2006 through May 7, 2007 and from April 15, 2009 through August 15, 2010. [Tr. 210.] When Plaintiff came back from Iraq in 2010, Temko sent an email to Schroeder and Somersett discussing how Plaintiff could decide when she returned back to work. [225-5 (Pl.'s Ex. 62).][2] Upon her return, Temko and Schroeder took steps to offer her a severance package that had been offered to other employees while Plaintiff was on a tour of military duty. [225-6 (Pl.'s Ex. 69); Tr. 163-64.]

         C. Defendant's Attendance Policy

         Under the Attendance Policy, when an employee was late or absent without providing the required documentation, the employee was issued a whole or fractional “occurrence.” [Tr. 1012.] Each time an employee received an occurrence, Defendant applied a four-week and six-month look-back period to determine whether the employee incurred enough occurrences during either of those periods to receive a step in the progressive disciplinary process. [Tr. 1014-15.] Corrective action would be taken if the employee had a total of two occurrence points within the four-week period or a total of five occurrences within the six-month period. [Id.] The disciplinary steps under the policy were (1) verbal warning, (2) formal written warning, (3) three-day suspension, and finally, (4) termination. [205-15 (Def.'s Ex. 11), at 4.] For the purposes of calculating time periods under the Attendance Policy, Defendant did not count absences other than ETO vacation and scheduled holidays. [Tr. 580-82.]

         The evidence at trial established that the Attendance Policy changed during the course of Plaintiff's employment. When Plaintiff started working for Defendant in 2005, any unexcused absence from work (including tardies) ranging from three minutes to one hour would result in 0.25 occurrences. [Tr. 1026-27.] After the policy changed [Tr. 1027], any absence from work for an hour or less would result in a half occurrence. [205-15 (Def.'s Ex. 11).] Defendant also previously had an unwritten policy that effectively gave employees a two-minute grace period, meaning that the employee would not receive an occurrence for being less than three minutes late. [Tr. 587-88.] However, Defendant eliminated the policy in 2008 after employees were abusing it. [Tr. 210-11, 586.]

         Schroeder testified that he may have had discretion to excuse Plaintiff from coming in one to three minutes late. [Tr. 649-51.] Although Schroeder testified that he had exercised his discretion to excuse tardies for other employees that purportedly resulted from car trouble or weather issues [id.], he did not say whether those employees provided documentation for any such excused tardies. Schroeder did testify, however, that the Attendance Policy allows for tardies resulting from car trouble to be excused. [Tr. 650-51.]

         D. PTSD

         On December 23, 2010, Plaintiff sent an email to Schroeder describing her serious medical issues relating to stress at work and her military service. [225-9 (Pl.'s Ex. 119); Tr. 593-98.] In that email, Plaintiff stated:

The doctor gave me a note for no work through 12/30. * * * Between the stress at work and the stress of reliving the events of my deployment through writing my story, I have been having panic attacks. I have been waking up feeling scared. Not able to get more than 4 hours of sleep a day.

[Id.] After receiving the email, Schroeder discussed disciplining Plaintiff for her subsequent absences with Olin. [Tr. 593-98.] Although Plaintiff's December 23, 2010 absence initially was categorized as inexcused, on September 6, 2011, Temko retroactively changed Plaintiff's attendance record to reflect an excused absence for that date. [205-21 (Def.'s Ex. 24).] The parties stipulated that Plaintiff was treated for Post-Traumatic Stress Disorder (“PTSD”) in December 2010 and formally diagnosed in January 2011. [Tr. 434.] Schroeder later learned of this diagnosis, but he could not remember exactly when. [Tr. 600-01.] The parties further stipulated that Plaintiff's PTSD was due to and caused by her military service. [Tr. 434.] PTSD is a mental disorder that can develop after a person is exposed to a traumatic event, such as warfare. [Id.] The symptoms of PTSD may include disturbing thoughts, feelings or dreams related to the events, mental or physical distress to trauma-related cues, attempt to avoid trauma-related cues, alterations in how a person thinks and feels, and increased arousal. [Id.] The term “posttraumatic stress disorder” came into use in the 1970s in large part due to the diagnoses of U.S. military veterans of the Vietnam War. [Id. at 434-35.] It was officially recognized by the American Psychiatric Association in 1980 in the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III). [Id. at 435] PTSD is a disability under the ADA. [Id.]

         As an accommodation for Plaintiff's PTSD, Plaintiff was allowed to use a meditation room for up to fifteen minutes before the start of her shift. [Tr. 871, 873.] Plaintiff also was given a revised schedule to allow her to attend PTSD therapy appointments. [Tr. 227-28.] When Plaintiff punched in late after those appointments, Plaintiff did not incur any occurrences. [Tr. 640, 958.]

         E. Attendance Issues and Termination

         After Plaintiff returned from her tour of duty in 2010, she was issued a corrective action plan for being one minute late on October 29, 2010. [Tr. 866.] However, Plaintiff explained that she was unaware that the grace period had been eliminated. [211-2 (Pl.'s Ex. 95), at 2.] At trial, Plaintiff presented an email from Olin to Schroeder expressing some concern about disciplining Plaintiff for this tardy, stating:

The only issue I have concern is the last tardy of one minute. Yes, she signed the form, but has been away from work for some time. Were the policies reviewed with her when she returned? I understand we enforce the rules completely and non-discriminatory, but I can see some outsider having a different view of this.

[211-2 (Pl.'s Ex. 95), at 1.] Ultimately, Plaintiff was not assessed an occurrence for her October 29, 2010 tardy. [Tr. 867.] On November 4, 2010, Plaintiff was given a copy of the Attendance Policy. [Tr. 867.]

         On August 31, 2011, Plaintiff received a three-day suspension for accumulating a total of five occurrences in a six-month period, from October 19, 2010 through August 20, 2011 (excluding A&S, FMLA, and military leave). [211-16 (Def.'s Ex. 22).] Specifically, Plaintiff incurred one occurrence for being absent on October 19, 2010 for an undocumented family issue. [205-17 (Def.'s Ex. 15), at 3; Tr. 573.] Plaintiff also incurred half of an occurrence for being two minutes late on November 23, 2010, half of an occurrence for being ten minutes late on April 14, 2011, half of an occurrence for being one minute late on May 10, 2011, half of an occurrence for being one minute late on May 12, 2011, half of an occurrence for being five minutes late on May 27, 2011, half of an occurrence for being one minute later on July 29 2011, half of an occurrence for being five minutes late on August 19, 2011, and half of an occurrence for being one minute late on August 20, 2011. [Id. at 1, 3.] Plaintiff earlier had received a verbal warning (Step 1) in connection with her unexcused absence on October 19, 2010 and a written warning (Step 2) in connection with her tardy on August 19, 2011. [Id.] Although Defendant used a look-back period of more than six months in disciplining Plaintiff, this was pursuant to the Attendance Policy, which did not include absences other than ETO vacation or scheduled holidays in calculating time periods under the Attendance Policy. [Tr. 582.]

         Around this time, tensions between Plaintiff and her supervisors increased. Plaintiff started telling Schroeder and others that they were not following the law. [Tr. 608.] Plaintiff told Schroeder that she was afraid of him. [Tr. 608-09.] Although Schroeder denies that it ever happened, Plaintiff claimed that Schroeder cornered her in a room with no windows in it. [Tr. 609.] At some point, Plaintiff started parking behind the warehouse of the Joliet facility to access the meditation room that she was allowed to use before work. [Tr. 871.] On October 24, 2011, Schroeder sent an email to management instructing them not to park in the rear of the building. [225-10 (Pl.'s Ex. 226A).] In that email, Schroeder stated:

[T]o avoid a charge of retaliation[, ] I must first review this with legal. We cannot afford a circumstance where it is perceived that I am singling out [Plaintiff] when others in this facility have on occasion been allowed to do this.

[Id.] The email was marked “Read and Delete” and instructed recipients not to print the email. [Id.; Tr. 622-23.] At trial, Schroeder could not explain why he included this language. [Tr. 623.]

         On October 27, 2011, Jankowski sent Schroeder an email stating:

I was just informed that today when [Plaintiff] got to work, she parked in the first parking spot by the door, punched in, sped around to the back of the building (nearly hitting John Sarpalious) and parked by Door 24. After the 4:30 bell rang, she left Bernie's office, went back to her car, drove to the front, THEN went to the locker room to get her shoes and other work gear. So once again she is doing whatever suits her.

[225-10 (Pl.'s Ex. 226A).] At trial, Jankowski testified that she did not believe that there was a prohibition against parking in the back at that time. [Tr. 382.] Temko testified that Schroeder several times had told Temko and others not to park in the back and Temko stopped once so directed. [Tr. 240.] Temko also explained that there were no parking spaces in the back and noted that it was dangerous to park back there because of the 18-wheeler trucks that were in that area. [Id.] Still, there was no evidence presented at trial indicating that Plaintiff previously had been told not to park in the back.

         On November 1, 2011, Plaintiff had a meeting with Schroeder and Plaintiff's supervisor Patrick Dunn. At the meeting, Plaintiff was told that she could not park at that location because it was a safety issue. [Tr. 871.] Plaintiff also was told that her use of the meditation room did not negate Plaintiff's obligation to be prepared to start work when the bell rang. [Tr. 872; 205-22 (Def.'s Ex. 27).] After leaving the meeting, Plaintiff returned and asked Schroeder whether the rule applied to all employees or just to Plaintiff. [Tr. 852.] According to Plaintiff's testimony, Schroeder then stated that all of the supervisors knew of the rule, but that he hadn't yet communicated the rule to all employees.[3] [Id.] This testimony was corroborated by an email sent by Schroeder to management on November 3, 2011, stating:

After the meeting [Plaintiff] returned to the office and made an inquiry “Are all the employees aware of the parking rule or am I singled out on this?[”] My reply was that management is aware of this rule yet the hourly group is not yet[.] I plan to communicate this rule to all. Attached is the statement I plan to post.

[225-12 (Pl.'s Ex. 233), at 2.]

         On November 2, 2011, Plaintiff again waited until the bell rang before leaving the meditation room. [Tr. 872.] Plaintiff then proceeded to her car parked in the south truck-trailer area of the facility property. [205-23 (Def.'s Ex. 31).] On November 3, 2011, Plaintiff was given a verbal warning for violating the start time rule on November 2, 2011. [Id.] At trial, Temko testified that the start time rule prohibits employees from being outside the building after the start bell rings. [Tr. 1048.] Plaintiff also was given half of an occurrence for her November 2, 2011 violation of the start time rule. [Id.] Plaintiff again left the building after the start bell on November 4, 2011. [205-24 (Def.'s Ex. 32).] This time, Plaintiff was given a written warning for violating the start time rule. [Id.] Plaintiff also was given another half of an occurrence for this violation. [Id.] The occurrence issued on November 4, 2011 resulted in Plaintiff having 5 occurrences over the preceding sixth-month period (as calculated under the Attendance Policy). [205-25 (Def.'s Ex. 35); 205-17 (Def.'s Ex. 15).] This resulted in Plaintiff's termination on November 8, 2011. [Id.]

         On November 2, 2011, Plaintiff was in the meditation room for approximately 40 minutes when the start bell rang. [Tr. 873.] On November 4, 4011, Plaintiff was in the meditation room for approximately 25 minutes before the start bell rang. [Tr. 874.] Plaintiff testified that it never occurred to her to leave the meditation room five minutes earlier so that she could repark her car in the front of the building before the start bell rang. [Tr. 874.] Although Plaintiff punched in to work before going to the meditation room, [4] her attendance records were altered by Temko to reflect that she was three minutes late on November 2, 2011 and November 4, 2011 to account for the start rule violations. [Tr. 1080.] Temko acknowledged that Plaintiff punched in timely on November 2, 2011 and November 4, 2011. [Tr. 1080.] However, Plaintiff was marked tardy for violating the start time rule, which is independent of when an employee punches in. [Id.]

         Plaintiff notes that she only was given a verbal warning and a written warning with respect to her start rule violations. [See 205-23 (Def.'s Ex. 31 (verbal warning)); 205-24 (Def.'s Ex. 32 (written warning)).] However, in those corrective action plans, Plaintiff was advised that she also was being assessed partial occurrences for each start rule violation. [Id.] Plaintiff already had been given a 3-day suspension-the third step in the disciplinary process-in relation to her attendance. [211-16 (Def.'s Ex. 22).]

         Plaintiff also notes that other employees were allowed to punch in up to a half-hour early and then wait in the breakroom for the start bell. [Tr. 202.] However, because the employees were in the building ready to work, this would not be a violation of the start rule. Temko testified that the start rule requires employees to be in the building ready to work when the start bell rang. [Tr. 1048.]

         It is undisputed that Plaintiff was not terminated for performance issues. Defendant contends that Plaintiff simply was terminated for violating the Attendance Policy. [205-25 (Def.'s Ex. 35; see also Tr. 499-500 (Schroeder testimony).]

         III. Defendant's Motion for Judgment as a Matter of Law

         Defendant moves for judgment as a matter of law, arguing that Plaintiff failed to present evidence at trial that would allow a reasonable jury to find that Defendant in fact discriminated against Plaintiff based on her disability or military status. Defendant also argues that Plaintiff failed to present evidence of compensatory damages, punitive damages, or a willful violation of the USERRA.

         A. ...


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