Chuipek v. Gilmore (In re Gilmore)

• Decision Date: 27 September 2018
• Docket Number: Adversary Case No. 15-00771,Bankruptcy Case No. 15-26538
• Citation: 590 B.R. 819
• Parties: IN RE: Scott C. GILMORE, Debtor. Raymond Michael Chuipek, Plaintiff, v. Scott C. Gilmore, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Illinois

590 B.R. 819

IN RE: Scott C. GILMORE, Debtor.Raymond Michael Chuipek, Plaintiff,

v.Scott C. Gilmore, Defendant.

Bankruptcy Case No. 15-26538

Adversary Case No. 15-00771

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

Signed September 27, 2018

Attorneys for Plaintiff: Lisa M. Nyuli, Scott G. Richmond, Ariano Hardy Ritt et al., 2000 McDonald Road, Suite 200, South Elgin, IL 60177

Attorney for Defendant: Bryan E. Minier, Lathrop Gage LLP, 155 North Wacker Drive, Suite 3000, Chicago, IL 60606

MEMORANDUM OPINION

Janet S. Baer, United States Bankruptcy Judge

Raymond Michael Chuipek filed an adversary complaint in the chapter 7 bankruptcy case of Scott C. Gilmore, seeking a determination that a judgment debt owed to him by Gilmore is not dischargeable pursuant to 11 U.S.C. § 523(a)(6).¹ This matter is now before the Court on Chuipek's motion for summary judgment. For the reasons set forth below, the Court finds that there are no genuine issues of material fact and that Chuipek is entitled to judgment as a matter of law. As such, Chuipek's motion will be granted, and judgment will be entered in his favor.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I).

BACKGROUND

The facts in this case are gleaned from the docket, the pleadings, and the summary judgment statements and responses, as well as the exhibits attached thereto. Among those exhibits are the transcripts from a joint jury-and-bench trial that was held over five days in February 2014 in the Sixteenth Judicial Circuit Court of Kane County, Illinois (the "state court"); the jury instructions from that trial; the verdict form completed by the jury on Chuipek's claims of retaliation; and an order entered by the state court on his claims for unpaid wages or commissions. (See Adv. No. 15-00771, Docket No. 38, Def.'s Resp. to Mot. for Summ. J. ("Resp."), Exs. A-D & Docket No. 39, Pl.'s Reply to Def.'s Resp. ("Reply"), Exs. A-F.² ) Most of the facts that follow are drawn from the parties' statements of material facts, which are supported by citations to these exhibits, as well as from the exhibits themselves.

At all times relevant to this matter, Chuipek suffered from Crohn's disease, a debilitating digestive disorder with which he was diagnosed at the age of eleven.³ (Docket No. 9, Answer to Adv. Compl. ¶ 20; Docket No. 29-1, Pl.'s Stmt. of Facts ("PSOF") ¶ 7; Tr. Ex. A at 245:13-246:21.⁴ ) As a result of this condition, Chuipek had chronic diarrhea and needed to use the bathroom on a frequent basis, sometimes as often as fifteen times a day. (PSOF ¶ 9; Tr. Ex. A at 247:13-21.) According to Chuipek, the disorder also caused him to suffer from severe abdominal pain, anemia, rectal bleeding, fissures, and abscesses. (Tr. Ex. A at 247:22-248:11.) To control the symptoms of his Crohn's disease, Chuipek took a variety of medications, including a drug called Humira. (PSOF ¶ 11; Tr. Ex. A at 248:18-249:20.) While taking Humira, he had an adverse reaction that caused the formation of hundreds of cysts, or lipomas, in his body, some of which were painful and required surgical removal during the time in question. (PSOF ¶¶ 12 & 30; Tr. Ex. A at 249:15-250:12; Tr. Ex. B at 37:8-20.) In addition to surgery, treatment for Chuipek's condition and its symptoms included regular visits to his gastroenterologist and appointments with his internist every other month. (PSOF ¶ 10; Tr. Ex. A at 250:13-251:6.)

In or around 1990, two years after his diagnosis, Chuipek met Gilmore. (Tr. Ex. A at 251:20-252:3.) Both of their families attended the same church, and Chuipek and Gilmore were actively involved in church-related projects. (Docket No. 38-5, Def.'s Stmt. of Facts ("DSOF") ¶ 6; Tr. Ex. A at 251:24-252:3; Tr. Ex. D at 51:12-16.) Gilmore knew at that time that Chuipek had Crohn's disease. (PSOF ¶ 8; Tr. Ex. A at 255:11-14; Tr. Ex. C at 49:3-9.) According to Chuipek, it was "no secret," and, in fact, he and Gilmore had conversations about his disorder. (Tr. Ex. A at 255:11-21.)

Chuipek's Employment at Smart Motion

Although the parties did not have contact for many years after Chuipek began college in 1995 (Tr. Ex. A at 254:15-255:2; Tr. Ex. C at 49:18-50:1), Gilmore reached out to him in May of 2008 to discuss a job opportunity. (Tr. Ex. A at 255:23-256:18; Tr. Ex. D at 50:6-19.) At the time, Gilmore was the president and co-owner of Smart Motion Robotics, Inc. ("Smart Motion"), a company that developed and sold robotic products for use in the egg industry.⁵ (PSOF ¶¶ 3 & 4; DSOF ¶¶ 1 & 2; Tr. Ex. D at 36:15-24, 43:13-45:6.) According to Chuipek, Gilmore met with him at Smart Motion, where Chuipek learned about the company's operations and told Gilmore about his education and previous work experience.⁶ (Tr. Ex. A at 257:3-24.) During the meeting, the parties also discussed Chuipek's Crohn's disease. (Id. at 258:24-259:9; Tr. Ex. D at 53:7-14.) Specifically, Chuipek testified that Gilmore asked him how he was feeling, and Chuipek responded that he was "doing okay," was "working through some issues," and had recently been to several doctor's appointments in connection with his disorder. (Tr. Ex. A at 258:24-259:9.)

Subsequently, Chuipek was offered a job as vice president of sales and marketing at Smart Motion. (PSOF ¶ 1; Tr. Ex. A at 258:1-6, 263:14-21; Tr. Ex. C at 53:3-6; Tr. Ex. D at 53:15-20.) The offer letter, dated June 9, 2008, provided for a compensation package of $48,000 per year, plus 4.25% of the company's total gross sales. (PSOF ¶ 2; Tr. Ex. A at 258:18-23, 260:1-261:3; Tr. Ex. C at 54:3-13; Tr. Ex. D at 55:9-56:21.) At the time of hire, Chuipek told Gilmore that he would need to take time off to attend doctor's appointments in connection with his Crohn's disease. (PSOF ¶ 13; Tr. Ex. A at 259:10-23; Tr. Ex. C at 58:16-22.) Gilmore assured Chuipek that he would be able to go to those appointments, telling him not to "worry about any of that." (Tr. Ex. A at 259:10-23; Tr. Ex. C at 58:16-59:6.)

On June 16, 2008, Chuipek began working at Smart Motion. (PSOF ¶ 5; DSOF ¶ 10; Tr. Ex. A at 251:16-17, 263:21-24.) According to his testimony, Chuipek used an existing list of leads to start forming relationships with potential customers. (Tr. Ex. A at 266:19-270:21.) He also testified that he began to build the marketing department, developing a completely new marketing campaign for Smart Motion. (Id. at 271:16-272:14.) Chuipek further testified that in 2008, his first year at the company, he brought in just under half a million dollars in business. (Id. at 272:15-273:3.) That figure nearly quadrupled the following year, during which, Chuipek said, he generated approximately $1.8 million in sales. (Id. at 277:23-278:18.) Correspondingly, Gilmore testified that Smart Motion grossed over $1 million in sales in 2008 and more than $2.3 million in 2009. (Tr. Ex. C at 66:6-19.)

In addition to his domestic clients, Chuipek testified that he started to expand Smart Motion's business beyond the United States by creating a list of potential customers in Latin America, South America, Canada, and Europe. (Tr. Ex. A at 274:15-275:5.) According to Chuipek, he was ultimately able to procure a letter of intent, dated October 2, 2009, from a Latin American company called El Tunal, which promised more than $1.2 million in business for Smart Motion. (Id. at 276:22-277:22, 279:3-281:16; see also Tr. Ex. B at 6:19-8:4.) Although no formal performance appraisal was conducted, Chuipek testified that Gilmore told him that his sales performance in 2009 had given Gilmore "the best year [he had] ever had." (Tr. Ex. A at 278:19-23.)

In the summer of 2009, Gilmore asked Chuipek to meet with him and his wife Vickie Gilmore ("Vickie") to report on his sales activities. The parties gave starkly conflicting accounts of what took place during that meeting, which was held on August 24, 2009.

According to Gilmore, Chuipek told him that he was following no leads, and, in response to Gilmore's questions about specific leads, Chuipek "just shrugged his shoulders." (DSOF ¶¶ 12-14; Tr. Ex. D at 87:1-88:20.) In addition, Gilmore testified that when questioned about the status of a leasing program, Chuipek's response was that "[h]e [had not] done anything on it for months, never." (DSOF ¶ 15; Tr. Ex. D at 88:21-89:15.) After the meeting, Gilmore said, he gave Chuipek sixty days to "turn around" his sales performance. (DSOF ¶ 16; Tr. Ex. D at 100:9-11.)

Chuipek's version of the events markedly differs from Gilmore's. According to Chuipek, Gilmore called the meeting not out of concern about Chuipek's performance but because he needed sales projections to obtain a bank loan to build a new facility. (Tr. Ex. B at 15:21-16:18; see also Tr. Ex. C at 84:7-86:10.) In preparation for the meeting, Chuipek said that he prepared a list of leads he was pursuing and then, during the meeting, provided Gilmore with a detailed update on those leads. (Tr. Ex. B at 17:12-19:4.) Chuipek testified that at no point during the meeting did Gilmore criticize his sales performance. (Id. at 19:13-21.)

Complaints Against Gilmore

In addition to issues regarding Chuipek's sales performance, an uneasy storm was building on various other fronts at Smart Motion. One of those centered on the language that Gilmore allegedly used in the workplace. Specifically, Chuipek testified that throughout his employment at Smart Motion, he heard Gilmore make comments that were inappropriate and offensive. According to Chuipek:

• Gilmore would refer to African-Americans as "niggers" and say that he did not want to hire them because "they were lazy." (PSOF ¶ 23; Tr. Ex. B at 27:23-28:9.)

• He stated both in the office and on the shop floor that he would hire only "short, fat, ugly Mexican women" so that they could "do their work and no one would look at them." (PSOF ¶¶ 22, 49,

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