Opinion
No. 98 C 7137
February 10, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Katherine Radell Havey is a former employee of defendant Tenneco Packaging, Inc. ("Tenneco Packaging"). Tenneco Packaging is alleged to be a wholly owned subsidiary of defendant Tenneco, Inc. Also named as a defendant is the Secretary of the Tenneco Benefits Committee, whom plaintiff alleges is the plan administrator of Tenneco Packaging's long-term disability ("LTD") and short-term disability ("STD") plans. Plaintiff's complaint contains four counts. Count I is a claim under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001et seq., that plaintiff was improperly denied benefits under the LTD and STD plans. See id. § 1132(a)(1)(B). Count II is an ERISA claim that plaintiff was discharged in retaliation for seeking the disability benefits. See id. § 1140. Count III is an ERISA claim that defendants failed to provide requested plan documents. See Id. § 1132(c). Count IV is a supplemental state law claim that plaintiff was discharged in retaliation for pursuing a workers' compensation claim.
This claim is before the court on supplemental jurisdiction only. There is no contention that diversity jurisdiction exists and it appears that plaintiff and two or three of the named defendants are citizens of Illinois.
Presently pending are defendants' motion for summary judgment as to all counts and plaintiff's motion for partial summary judgment as to Count III. Also pending are two motions related to the briefing of the summary judgment motions. Defendants move to strike five pages of plaintiff's reply in support of her summary judgment motion on the ground that those pages are actually a surreply opposing defendants' summary judgment motion. Although defendants' characterization is accurate, no good reason exists for ignoring the arguments, which primarily concern additional factual arguments raised by defendants in their reply. Defendants' motion to strike will be denied.
Plaintiff moves to strike a supplemental affidavit of Michael Powell and the errata sheet he submitted following his deposition. Rule 30(e) of the Federal Rules of Civil Procedure provides:
If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.
There is no dispute that Powell requested that he be able to review the transcript. Plaintiff, however, contends that the changes were not submitted within 30 days. Defendants submit proof that they did not receive the transcript until July 21, 1999 and that Powell submitted his changes to the court reporter on August 19. Plaintiff notes that she did not receive any notice of the changes until filed with defendants' reply brief in November. Although not explicitly stated in Rule 30(e), the requirement that the court reporter certify and append any requested changes implies that the 30-day time limit is measured by submission to the court reporter. Cf. Mader v. Motorola Inc., 1999 WL 519020 *4 (N.D. Ill. July 14, 1999) (declining to consider changes that were not submitted to the court reporter) Powell's submission was timely.
Plaintiff also objects to some of the changes as being improper because they involve substantive changes to the deposition testimony that Powell explains as having been made following "recollection refreshed by review of a document." Rule 30(e) allows "changes in form or substance." As long as the deponent timely requests the changes and provides some explanation, the change is to be permitted regardless of the extent of the change or the merits of the explanation. Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997); Rios v. ATT Corp., 36 F. Supp.2d 1064, 1067 (N.D. Ill. 1999), aff'd by unpublished order, 2000 WL 48072 (7th Cir. Jan. 14, 2000); Mader, 1999 WL 519020 at *3; Dunning v. Chemical Waste Management, Inc., 1997 WL 222891 *7 (N.D. Ill. April 22, 1997); Innovative Marketing Technology, L.L.C. v. Norm Thompson Outfitters, Inc., 171 F.R.D. 203, 205 (W.D. Tex. 1997). See also Duff v. Lobdell-Emery Manufacturing Co., 926 F. Supp. 799, 803-04 (N.D. Ind. 1996) (declining to consider errata sheet because no explanations provided). But see Eckert v. Kemper Financial Services, Inc., 1998 WL 699656 *5-6 (N.D. Ill. Sept. 30, 1998); Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992). However, the original transcript remains intact and the deponent may be impeached by his change in testimony. Podell, 112 F.3d at 103; Mader, 1999 WL 519020 at *3; Dunning, 1997 WL 222891 at *7. Therefore, both the original testimony and any changes must be considered in determining if a genuine factual dispute exists.
On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Schneiker v. Fortis Insurance Co., ___ F.3d ___, 2000 WL 10251 *1 (7th Cir. Jan. 6, 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852 (1988); Thomas v. Metra Rail Service, 941 F. Supp. 758, 761 (N.D. Ill. 1996). As the Seventh Circuit has summarized:
The moving party bears the initial burden of directing the district court to the determinative and the available evidence that pertains to each. "[A] party seeking summary judgment always. bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); id. at 325 ("the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992)
Furthermore, pursuant to Local Rule 56.1(a)(3), the party moving for summary judgment is required to provide a statement of material facts as to which the moving party contends there is no genuine issue. The statement is to be in the form of numbered paragraphs. The nonmovant is to reply to each paragraph, either admitting it is uncontested or stating the nonmovant's disagreement and specifically citing to supporting materials showing there is a genuine factual dispute. Loc. R. 56.1(b)(3) (A). The nonmovant is also to provide a statement of additional facts, if any, that would defeat summary judgment, again in the form of numbered paragraphs with supporting citations. Loc. R. 56.1(b)(3)(B). "All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Id. Expressing disagreement with a fact contained in the movant's Rule 56.1(a)(3) statement without providing a citation to materials supporting that dispute is also a basis for deeming the movant's factual assertions to be true. Garrison v. Burke, 165 F.3d 565, 567 (7th Cir. 1999); Valenti v. Qualex, Inc., 970 F.2d 363, 369 (7th Cir. 1992); Skagen v. Sears, Roebuck Co., 910 F.2d 1498, 1500 (7th Cir. 1990). However, it is within the district court's discretion as to how strictly to apply its own rules. Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1140 (7th Cir. 1997); Weeks v. Samsung Heavy Industries Co., 126 F.3d 926, 938 n. 5 (7th Cir. 1997); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316-17 (7th Cir. 1995); Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir. 1992); Gabriel v. City of Chicago, 9 F. Supp.2d 974, 975 n. 2 (N.D. Ill. 1998); United States v. 47 West 644 Route 38, Maple Park, Ill., 962 F. Supp. 1081, 1084 n. 2 (N.D. Ill. 1997).
In support of their motion for summary judgment, defendants filed a fully supported Rule 56.1(a)(3) statement. Plaintiff provided a Rule 56.1(b)(3)(A) statement responding to each paragraph of defendants' statement, but, when disagreeing, simply stated the fact "is disputed" without providing any citations to supporting material. Plaintiff apparently believed it was sufficient to provide a Rule 56.1(b)(3)(B) statement that included citations to supporting materials. It is not. Had plaintiff provided a Rule 56.1(b)(3)(A) statement that stated: fact No. __ is disputed, see Rule 56.1(b)(3)(B) statement ¶ No. __, it would have been sufficient. Plaintiff, however, made no attempt to cross reference its Rule 56.1(b)(3)(A) and Rule 56.1(b)(3)(B) statements. This makes the court's and the parties' tasks more difficult and defeats, in significant part, the purposes of Local Rule 56.1. Nevertheless, the basis for plaintiff's factual disagreements can be discerned from plaintiff's Rule 56.1(b)(3)(B) statement and briefs and therefore will be considered. However, counsel for plaintiff is admonished to fully comply with the Local Rules in any future filings with this court.
Resolving all factual disputes and drawing all reasonable inferences in plaintiff's favor, the facts assumed to be true for purposes of defendants' motion for summary judgment are as follows. According to Tenneco, Inc.'s 1997 annual report, it "owns and manages" the Tenneco Packaging business. Plaintiff was employed at Tenneco Packaging's Jacksonville, Illinois facility from April 22, 1997 until March 23, 1998. Tenneco Packaging manufactures aluminum and plastic-based specialty packaging for consumer, retail, food service, and food processing uses. Employees at the Jacksonville facility work with heavy and potentially dangerous equipment. For most of her tenure, plaintiff was employed as an Operator B in the OneZip Department. During that time, Fred Mooney was the unit manager of the OneZip Department and Dale Lutrell was the developer of the department. Plaintiff reported to her team leaders, Mooney, and Lutrell. Harry Sweet was the plant manager for the Jacksonville facility and Rod Rusche was the human resources manager at the facility.
Any differing factual assumptions that must be made as regards plaintiff's motion for partial summary judgment will be specifically noted.
Tenneco Packaging seeks to maintain a safe working environment by having a loss prevention supervisor who is responsible for safety at the Jacksonville plant; having an employee handbook that reminds employees of their safety responsibilities; sponsoring incentive programs to reward employees for safe conduct; designating certain hourly employees as safety coordinators; and participating in the Occupational Safety and Health Administration's Voluntary Participation Program. Tenneco Packaging holds safety investigation meetings following work-related injuries that are serious enough to require more than first aid. According to its procedures, the purpose of such meetings is: "To conduct incident investigations in a consistent, team-oriented method with the goal of finding the pertinent and fixable root causes of equipment, procedures and performance with assigned responsibilities for correction. The ultimate goal is to prevent reoccurrence." Safety investigation meetings have been held for incidents both that involve claims for workers' compensation and that do not involve claims for workers' compensation.
During the course of her employment, plaintiff suffered an injury to her right arm that she subsequently reported as occurring when she was flipping chips. A number of other Tenneco Packaging employees had previously suffered injuries while flipping chips. In 1997, Tenneco Packaging formed a special committee to investigate such injuries. On March 9, 1998, Lutrell completed an occupational and injury report regarding plaintiff's arm injury. Plaintiff had reported that her arm hurt when she flipped chips. Lutrell did not indicate in the report that a safety investigation was necessary. The same day, Lutrell and Bradley Edwards also completed an incident and duty investigation report. At the time, the cause of the injury was unknown, but Lutrell recognized that it may have been caused by flipping chips. Copies of at least one of the reports were forwarded to Wanda Streeter, an administrative assistant in the Loss Prevention Department. Streeter wrote "Investigation to be Held" on one of the reports and placed a copy in plaintiff's workers' compensation file. Streeter forwarded a copy to the workers' compensation carrier once she determined there would be costs associated with a claim because plaintiff had missed time at work. On March 18, 1998, Streeter completed an employers first report of injury or illness form for the Illinois Industrial Commission. A copy of this form was also submitted to the insurance carrier. On March 17, Lutrell and Mooney discussed setting up a safety investigation meeting. On March 18, Lutrell issued a memorandum setting March 23 as the date for the safety investigation, which was the next weekday that plaintiff would be working. Although the injury had occurred a few weeks earlier and no safety investigation had previously been suggested, Lutrell's March 18 memorandum said to get it done "right away."
Plaintiff did not submit a claim to the Illinois Industrial Commission until March 30, 1998.
On March 20, an adjuster from the carrier contacted plaintiff and taperecorded their detailed conversation regarding plaintiff's injury and claim. When plaintiff informed her attorney about this conversation, the attorney told her that, if a safety investigation meeting was held, she should not discuss her injury unless the attorney is present.
The safety investigation meeting was held on March 23, during the last hour of plaintiff's shift, approximately 7:00 a.m. Present at the meeting were safety coordinator Bradley Edwards, team leader Stewart Rives, human resources advisor Powell, Lutrell, Mooney, loss prevention supervisor Robert Crum, and plaintiff. From the beginning, plaintiff informed those present that, on her attorney's advice, she would not discuss the matter without her attorney present. Plaintiff offered the attorney's name, telephone number, and card. Crum stated that her conduct sounded like insubordination and it was suggested that plaintiff was attempting to resign. Mooney told plaintiff that she had until 8:00 a.m. to change her mind and plaintiff left the meeting. After plaintiff left, Crum suggested that plaintiff had been insubordinate and therefore could be terminated. Rives expressed disagreement, stating that plaintiff had previously disclosed all the pertinent information about the incident and that they had all the information they needed. Nevertheless, no further attempt was made to consider the cause of plaintiff's injury or otherwise discuss her injury.
Tenneco Packaging has no written policy prohibiting the presence of attorneys at safety investigation meetings. Some of those at the March 23 meeting later testified that they believed there was an informal policy prohibiting attorneys being present, basing this belief on their having no knowledge of an attorney ever being present and two instances (one of which is plaintiff's) of such requests being denied. Sweet, who was not present at the meeting, testified that he believed there was an unwritten policy prohibiting attorneys, but admitted he did not know if employees had a legal right to have an attorney present. Also, Sweet testified that, ordinarily, there is no rush to complete a safety investigation meeting such that it must be completed within a 40-minute time period. He also testified that sometimes safety investigations are conducted without the participation of the employee, usually when the employee has already been terminated.
Sweet and Rusche made the decision to terminate plaintiff for the stated reason that she was insubordinate at the March 23 meeting. That decision was made on March 23 and communicated to plaintiff on that same day. Although Sweet did not know whether a workers' compensation or disabilities benefit claim had been filed or was planned, he assumed that the reference to an attorney meant that plaintiff would be seeking workers' compensation and/or disability benefits. Although not directly involved in the final decision to terminate plaintiff, at the time of the March 23 meeting Powell was aware of the possibility of a workers' compensation claim. Powell, along with Crum, informed Rusche of the events at the March 23 meeting and Rusche thereafter informed Sweet.
Tenneco Packaging has a three-step, progressive discipline procedure for discharging an employee. Tenneco Packaging reserves the right to discharge an employee immediately, but ordinarily follows the three-step procedure. Plaintiff did not have a prior discipline problem and her refusal to participate in the meeting did not affect productivity or otherwise adversely affect her employer. Also, there were a number of other injuries from flipping chips that Tenneco Packaging had previously investigated. There is sufficient evidence for a reasonable trier of fact to conclude that plaintiff's conduct at the safety investigation meeting, particularly in light of her lack of prior misconduct, was not so severe that it ordinarily would have resulted in a discharge, especially on the same day and without following the three-step procedure.
Tenneco Packaging's STD plan provides benefits when an employee is unable to work due to a non-occupational illness or injury. An employee must be absent from work for medical reasons to receive STD benefits. Plaintiff did not receive STD benefits on the ground that her injury was work related.
The parties agree that Tenneco Packaging's LTD plan is an ERISA benefit plan. The LTD plan specifically provides: "The Plan Administrator shall have all powers necessary or appropriate to carry out its duties, including the discretionary authority to interpret the provisions of the Plan and the facts and circumstances of claims for benefits." An employee qualifies for LTD benefits if the employee: (1) is continuously and totally disabled for 26 weeks; (2) worked less than 30 days during the 26-week waiting period; (3) is under the regular care of a physician; (4) is suffering from the same illness that caused the disability during the 26-week period; and (5) is determined to be disabled by the claims administrator. An employee is disabled if he or she is unable to substantially perform all of the material duties of his or her regular occupation and, after receiving benefits for 24 months, unable to perform the material duties of any occupation for which the employee is or may reasonably become qualified. Plaintiff never applied for LTD benefits. Plaintiff presently is physically able to work in her former position. There is no evidence presented to show that, as of 26 weeks after her injury, she was physically unable to perform the duties of an Operator B.
The following facts are uncontested and therefore assumed to be true for purposes of resolving both of the cross motions regarding Count III. On August 18, 1998, plaintiff's counsel sent a letter to defendants requesting documents for the STD plan. Plaintiff was provided with the documents that do exist, but was not provided a summary plan description because no summary plan description was ever created. Tenneco Packaging has an employee handbook for its Jacksonville facility that includes a description of the STD benefits under the heading "Employee Benefits," not under the heading "Pay Practices." The section concerning STD benefits states in part: "Benefits will be administered under the terms and conditions of the official text of the plan." Tenneco Packaging distributes a booklet to its employee entitled: "Your Tenneco Health and Welfare Benefits: Highlights of Plan Provisions." The title page of the booklet lists nine different benefits, including "Employee Short-Term Disability Insurance," and states in reference to all of the benefits: "This document highlights selected features of the health and welfare plans. A more detailed description is found in the summary plan description available upon request from the Benefits Center." STD benefits are only paid for absences based on medical reasons. Payments are for less than a participant's normal compensation.
It is also uncontested that defendants maintain a "Master Non-Medical Benefits Plan, restated effective as of January 1, 1997." The STD plan is a "component plan" of the master plan. Pursuant to ERISA, defendants filed a Form 5500 (Annual Return/Report of Employee Benefit Plan) for the Master Plan.
Defendants contend that the STD plan was excluded from this form, but there is no such indication on the form that is provided. Defendants make reference to the instructions for the form and an "F" code, but there is no mention of an "F" code in the copy of the form and instructions that is provided.
Powell testified at his deposition that he has a general understanding of benefit practices, but that he was not a "benefits expert." He testified that "Tenneco outsources its benefits through a third party." He also testified that he believed STD benefits are paid out of general assets. Presently, defendants provide a supplemental affidavit of Powell in which he more firmly states that STD benefits are paid by the company, not a third-party insurer, and that he has knowledge of this fact. Human resources administrator Marcia Johnson testified at her deposition that STD benefits are paid by the company through payroll. Plaintiff points to no evidence that STD benefits are not paid out of the company's general assets or that they are paid by a third party.
The first issue to resolve is whether the STD plan should be considered to be an ERISA plan. Plaintiff contends the uncontested facts show that the STD plan is an ERISA plan and defendants contend that the uncontested facts show that it is not an ERISA plan, but a payroll practice. Regulations define a payroll practice as including "payment of an employee's normal compensation, out of the employer's general assets, on account of periods of time during which the employee is physically or mentally unable to perform his or her duties, or is otherwise absent for medical reasons (such as pregnancy, a physical examination or psychiatric treatment)." 29 C.F.R. § 2510.3-1 (b)(2). Plaintiff contends that the STD plan is not a payroll practice because it is not paid out of general assets and employees receive only 60% of normal compensation. Plaintiff also relies on indications in the employee handbook and benefits booklet, as well as Form 5500, that the STD plan is an ERISA plan.
The burden is on the party claiming that an ERISA plan exists to show that the benefit plan is an ERISA plan. See Zavora v. Paul Revere Life Insurance Co., 145 F.3d 1118, 1120 n. 2 (9th Cir. 1998); Kanne v. Connecticut Gen. Life Insurance Co., 867 F.2d 489, 492 n. 4 (9th Cir. 1988). This is true even when the opposing party is invoking a regulation that excepts the plan from being an ERISA plan. See Zavora, supra; Kanne, supra. Therefore, the burden is on plaintiff to show that the STD plan is a plan as that term is used in ERISA. This includes the burden of showing that the STD plan is funded in a manner other than through Tenneco Packaging or Tenneco, Inc.'s general assets. Since plaintiff has presented no proof to that effect, it must be assumed that the STD benefits are paid out of general assets. But even if the burden is on defendants to prove that the STD plan falls within the payroll practices exception, defendants have met their burden of showing that the benefits are paid out of general assets. Although questions can be raised regarding how detailed Powell's knowledge is regarding funding practices, there is no contrary evidence that would allow a reasonable trier of fact to conclude his testimony is insufficient. Moreover, Johnson clearly states that the benefits are paid by the company. On both motions for summary judgment, it must be assumed that the STD benefits are paid out of general assets.
As to plaintiff's contention regarding STD benefits being less than full compensation, Department of Labor Opinion Letters make clear that normal compensation is the maximum compensation that may be paid while still falling within the (b)(2) payroll practices exception. Payments of less than full compensation still fall within this exception and case law upholds this rule.Hite v. Biomet, Inc., 38 F. Supp.2d 720, 729-30 (N.D. Ind. 1999);Williams v. Great Dane Trailer Tennessee. Inc., 1995 WL 447268 *2 (W.D. Tenn. Jan. 20, 1995); Martin Marietta Energy Systems. Inc. v. Industrial Commission of Ohio, 843 F. Supp. 1206, 1211 (S.D. Ohio 1994). The undisputed facts show that the payroll practices exception is satisfied.
Plaintiff's remaining contention is that the STD plan should be considered an ERISA plan because defendants indicated it was by referring to it as a welfare benefit plan, representing that it had a summary plan description, and including it in the Form 5500 filing. Plaintiff cites no case law or regulation supporting that such conduct is a basis for treating as a plan a practice that otherwise satisfies the payroll practice exception. At least one court has rejected a similar argument. See Williams, 1995 WL 447268 at *2. Compare also Scott v. Gulf Oil Corp., 754 F.2d 1499, 1503 (9th Cir. 1985) (treating plan as if it was not covered by ERISA does not by itself exclude the plan from ERISA coverage); du Mortier v. Massachusetts General Life Insurance Co., 805 F. Supp. 816, 820 (C.D. Cal. 1992) (same). Since defendants satisfied the requirement for a payroll practice, the STD plan was a payroll practice, not an ERISA plan.
Because the STD plan is not covered by ERISA, the requirements of § 1132(c) did not apply. Therefore, Count III will be dismissed. Also, Counts I and II will be dismissed to the extent they contain ERISA claims related to the STD plan.
Since the STD plan is not an ERISA plan, a state law claim that plaintiff was retaliated against for pursuing STD benefits would not be preempted by ERISA. But even if the Count II STD benefits claim were to be construed as a state law retaliatory discharge claim, it has been held that interference with disability benefits is not a basis for claiming retaliatory discharge under Illinois law. Langford v. County of Cook, 965 F. Supp. 1091, 1099 (N.D. Ill. 1997)
As to Count II, plaintiff does not contend that she has direct evidence of a retaliatory motive. Therefore, she must proceed in accordance with the familiar burden-shifting analysis set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and its progeny. See Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir. 1996). Plaintiff must first establish a prima facie case of discrimination. If the plaintiff does so, the burden shifts to the defendant to offer a legitimate and nondiscriminatory reason for the employment action. If the defendant makes this showing, the burden shifts back to the plaintiff to show that the defendant's proffered reason was pretext. Id. At all times, the burden of persuasion remains with plaintiff. Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 394 (7th Cir. 1998). To show that an employer's stated grounds for an adverse action are pretextual, a plaintiff generally must present either direct evidence that an illegitimate ground was a motivating factor in the employer's decision or present a material factual dispute as to the sincerity of the proffered reason. See Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995) (quoting Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7th Cir. 1992)). As to the latter, it must be shown (a) that the proffered reason had no basis in fact, (b) that the proffered reason did not actually motivate the decision, or (c) that the reason was an insufficient reason to motivate the adverse action. O'Connor v. DePaul University, 123 F.3d 665, 670 (7th Cir. 1997); McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 798 (7th Cir. 1997); Collier, 66 F.3d at 892 (quoting Cliff v. Board of School Commissioners, 42 F.3d 403, 412 (7th Cir. 1994)). A prima facie case of retaliation in violation of § 1140 can be made out by showing plaintiff (1) belongs to the protected class; (2) was qualified for [her] job position; and (3) was discharged or denied employment under circumstances that provide some basis for believing that the prohibited intent to retaliate was present. Grottkau, 79 F.3d at 73.
Defendants contend there is no evidence from which it may be concluded that the decisionmakers who discharged plaintiff were motivated by any LTD benefits claim that plaintiff might submit. To the extent plaintiff can make out a prima facie case of retaliation, defendants contend the undisputed facts show that they discharged plaintiff for the legitimate nondiscriminatory reason that she was insubordinate. As is discussed in the presentation of the facts, there is evidence from which it can be found that Sweet, one of the decisionmakers, believed that plaintiff had an attorney because she was pursuing workers' compensation and/or disability benefits. Also, a genuine factual dispute exists regarding whether plaintiff's insubordination would ordinarily have been a sufficient basis for discharging an employee, especially in the swift manner in which it occurred. Since plaintiff was otherwise meeting her employer's legitimate expectations and she was discharged on the same day that at least one of the decisionmakers learned she might be pursuing a disability claim, it can be inferred that plaintiff's discharge was motivated by an attempt to punish her for or prevent her from obtaining LTD benefits under an ERISA plan. Since factual disputes exist as to whether her insubordination actually motivated the discharge, a factual dispute also exists as to whether defendants' stated ground for the discharge is pretextual. Count II will not be dismissed to the extent that it is based on retaliation for pursuing LTD benefits.
Similarly, factual disputes exist as to whether the discharge was motivated by retaliation for possibly pursuing a workers' compensation claim. Count IV will not be dismissed.
Defendants contend the Count I LTD benefits claim fails because (a) plaintiff failed to exhaust her administrative remedies, (b) she has not shown she qualifies for LTD benefits, and (c) the denial of benefits was not an abuse of discretion. Since plaintiff has not presented evidence that she was disabled for at least 26 weeks, she has not shown that she could be entitled to LTD benefits. Therefore, she cannot succeed on her Count I LTD benefits claim regardless of whether exhaustion may be excused and regardless of whether review is de novo or abuse of discretion. Count I will be dismissed.
To the extent the Count I claim regarding STD benefits should be construed as a state law contract claim and plaintiff has an enforceable contract, that claim would fail because plaintiff has not shown that she qualified for STD benefits.
Still to be considered is which defendants should remain as to Count II and IV. Since the Benefits Committee was not responsible for plaintiff's discharge, all claims against it will be dismissed.
As to Tenneco, Inc., plaintiff contends that it may be held liable as the parent company of Tenneco Packaging. Under Illinois law, a retaliatory discharge claim is limited to being brought against the plaintiff's employer. Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill.2d 12, 694 N.E.2d 565, 567-70 (1998);Jones v. Sabis Educational Systems, Inc., 52 F. Supp.2d 868, 882 (N.D. Ill. 1999). Therefore, as to the Count IV state law retaliation claim, Tenneco, Inc. can only be held liable if it is possible to pierce the corporate veil. For purposes of piercing the corporate veil, Illinois applies the law of the state in which the corporations were incorporated. Retzler v. Pratt Whitney Co., ___ Ill. App.3d ___, ___ N.E.2d ___, 1999 WL 1249719 *8 (1st Dist. Dec. 23, 1999). Both Tenneco Packaging and Tenneco, Inc. are Delaware corporations. Under Delaware law, being a wholly owned subsidiary is an insufficient basis, by itself, for piercing the corporate veil. Id. The Count IV claim against Tenneco, Inc. will be dismissed.
As to the Count II claim, § 1140 provides that it is unlawful for "any person" to discriminate against a participant because of the participant's attempt to enforce rights under a benefit plan. Liability under § 1140 is not limited to the participant's employer. Mattei v. Mattei, 126 F.3d 794, 806 n. 11 (6th Cir. 1997), cert. denied, 523 U.S. 1120 (1998); Maez v. Mountain States Telephone Telegraph, Inc., 54 F.3d 1488, 1501 n. 8 (10th Cir. 1995); Custer v. Pan American Life Insurance Co., 12 F.3d 410, 421 (4th Cir. 1993); Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124, 1132 n. 4 (9th Cir. 1992); Place v. Abbott Laboratories, Inc., 938 F. Supp. 1373, 1377 (N.D. Ill. 1996). But see Byrd v. MacPapers, Inc., 961 F.2d 157, 161 (11th Cir. 1992). Still, to be held liable, Tenneco, Inc. must have participated in the retaliatory conduct. Plaintiff points to no evidence that Sweet or Rusche were employees of Tenneco, Inc., nor any other evidence that Tenneco, Inc. participated in the decision to discharge plaintiff. Statements in a 1997 annual report that Tenneco, Inc. "owns and manages" Tenneco Packaging does not show that Tenneco, Inc. participated in the decision to discharge plaintiff. Therefore, plaintiff must instead show that it is appropriate to pierce the corporate veil. To the extent such a basis for liability exists for underlying ERISA liability, it is limited to a state law claim. See Peacock v. Thomas, 516 U.S. 349, 353-54 (1996). See also Board of Trustees, Sheet Metal Workers' National Pension Fund v. Elite Erectors, Inc., 46 F. Supp.2d 852, 856-57, reconsideration denied, 64 F. Supp.2d 839, 842 (S.D. Ind. 1999). As previously discussed, plaintiff has not shown a basis for piercing the corporate veil. All claims against Tenneco, Inc. will be dismissed.
IT IS THEREFORE ORDERED that plaintiff's motions to strike supplemental affidavits and corrections to the deposition of Michael Powell [46] and for partial summary judgment [16] are denied. Defendants' motion to strike pages 9-14 of plaintiff's reply to defendants' response [48] is denied. Defendants' motion for summary judgment [31] is granted in part and denied in part. Counts I and III are dismissed in their entirety. Count II is dismissed to the extent it is based on retaliation for seeking short-term disability benefits. All claims against defendants Tenneco, Inc. and Secretary Tenneco Benefits Committee are dismissed. In open court on March 29, 2000 at 11:00 a.m., the remaining parties shall present an original and one copy of a topbound, final pretrial order in full compliance with Local Rule 16.1(a) and Local Rule Form 16.1.1.