Keen v. Teva Sales & Mktg., Inc.

• Decision Date: 20 March 2018
• Docket Number: No. 16 C 9964,16 C 9964
• Citation: 303 F.Supp.3d 690
• Parties: Janice KEEN, Plaintiff, v. TEVA SALES AND MARKETING, INC., and Teva Pharmaecueticals USA, Inc., Defendants.
• Court: U.S. District Court — Northern District of Illinois

303 F.Supp.3d 690

Janice KEEN, Plaintiff,

v.TEVA SALES AND MARKETING, INC., and Teva Pharmaecueticals USA, Inc., Defendants.

No. 16 C 9964

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

Signed March 20, 2018

Edward R. Theobald, Law Offices of Edward R. Theobald, Chicago, IL, for Plaintiff.

Larry J. Rappoport, Stevens & Lee, Philadelphia, PA, Scott A. Schaefers, Brotschul Potts LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Chief Judge Rubén Castillo, United States District Court

Janice Keen ("Plaintiff") brings this 37–count employment discrimination lawsuit alleging that Teva Sales and Marketing, Inc. and Teva Pharmaceuticals USA, Inc. (collectively, "Teva" or "Defendants") discriminated and retaliated against her because of her disability and gender in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , the Illinois Human Rights Act ("IHRA"), 775 ILL. COMP. STAT. 5/1–101 et seq. , and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (16–cv–9964, R. 26, Am. Compl. at 1–172.¹ ) Plaintiff also brings claims under the Illinois Whistleblower Act ("IWA"), 740 ILL. COMP. STAT. 174/1 et seq. , and a claim for retaliatory discharge under Illinois law. (Id. ) Defendants move for summary judgment on all of Plaintiff's claims.² (14–cv–9626, R. 81, Mot. for Summ. J. at 1; 16–cv–9964, R. 30, Suppl. Mot. for Summ. J. at 3.) Plaintiff opposes the motion, and moves to strike Defendants' reply brief and sanction Defendants for raising arguments in their reply that were not raised in their motion for summary judgment. (Id. , R. 47, Mot. to Strike.) For the reasons set forth below, Defendants' motion for summary judgment is granted, and Plaintiff's motion to strike and for sanctions is denied.

RELEVANT FACTS³

This suit implicates facts and numerous discrete incidents that occurred over several years during Plaintiff's employment. The Court, therefore, only summarizes those facts that are material to Plaintiff's claims. The following facts are undisputed unless otherwise stated.

I. The Parties and Plaintiff's Supervisors

Defendants are Delaware corporations and pharmaceutical companies. (14–cv–9626, R. 86–1, Pl.'s Resp. to Defs.' Statement of Material Facts [hereinafter "SOMF"] ¶ 1; 16–cv–9964, R. 28, Answer to Am. Compl. at 2.) In June 2005, Keen was hired as a sales specialist by Cephalon, a pharmaceutical company later acquired by Teva. (14–cv–9626, R. 86–1, Pl.'s Resp. to Defs.' SOMF ¶ 3.) As a sales specialist, she was responsible for selling pharmaceuticals in the Chicago area. (Id. ) The physical requirements of her job included daily driving, getting in and out of her car, carrying promotional materials, climbing and descending stairs, and walking to and from physicians' offices. (16–cv–9964, R. 28, Answer to Am. Compl. at 3.)

Prior to Teva's acquisition of Cephalon in October 2011, Plaintiff reported to Katherine Stanek. (14–cv–9626, R. 86–1, Pl.'s Resp. to Defs.' SOMF ¶ 3.) Shortly after the acquisition, Plaintiff began reporting to Scott Bischoff, Teva's Chicago regional sales manager. (Id. ¶ 4.) Sometime in 2013, Mike Rothweiler replaced Bischoff as the regional sales manager, and Plaintiff then began reporting to him. (Id. ) Stanek, Bischoff, and Rothweiler all reported to Matthew Muller, who was a director of sales at Cephalon and later the director of sales for Teva's "central nervous division" following Teva's acquisition of Cephalon. (Id. ¶ 5.)

II. Plaintiff's Leaves of Absence in 2010–2012

In November 2010, Plaintiff was involved in an automobile accident while she was working and injured her neck and shoulder as a result. (Id. , R. 86–5, Keen Oct. 14 Dep. Tr. at 34, 37.) After the accident, she took a leave of absence for approximately five months and returned to work either "at the end of April or early May" in 2011. (Id. at 40–41.) Shortly after the accident, Plaintiff filed a claim with the Illinois Workers' Compensation Commission ("IWCC") related to the accident. (16–cv–9964, R. 41–2 at 86, Workers' Comp. Claims.) In November 2011, Plaintiff underwent surgery to repair a torn rotator cuff, and she took a one month leave of absence following her surgery. (14–cv–9626, R. 86–1, Pl.'s Resp. to Defs.' SOMF ¶ 11.)

The following year, Plaintiff underwent spinal surgery to repair injuries she suffered in the November 2010 car accident and took another leave of absence. (Id. , R. 86–5, Keen Oct. 14 Dep. Tr. at 51–53.) Her leave began in June 2012 and lasted for twelve weeks, at which time Plaintiff exhausted her leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. (Id. at 52–53.) Just a few months after she returned, Plaintiff discovered that her spinal surgery had failed and that she would need another surgery. (Id. , R. 86–1, Pl.'s Resp. to Defs.' SOMF ¶ 16.) On December 12, 2012, Plaintiff met with Teva's director of human resources, Rob Bobrowski, and explained to him that "she was going to be off work for an extended period of time because of her disability of degenerative cervical disc disease

" and surgery she had scheduled. (Id. , R. 89, Defs.' Resp. to Pl.'s Statement of Additional Material Facts [hereinafter "SOAMF"] ¶ 22.) Later in December 2012, Plaintiff underwent a second spinal surgery which led to an extended leave of absence from Teva. (Id. ¶¶ 5, 11, 22.)

III. Plaintiff's Leave and Return to Work in 2013⁴

While Plaintiff was still on leave, Plaintiff's physician, Dr. Gary Shapiro, wrote a letter to Defendants on May 8, 2013, informing them that Plaintiff was scheduled for another spinal surgery on May 17, 2013, and that she was to refrain from work until the surgery. (Id. , R. 81–12 at 16, May 8, 2013, Shapiro Letter.) Dr. Shapiro also informed Defendants that Plaintiff would need two to six weeks to recover. (Id. ) Plaintiff's surgery, however, was cancelled. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 9.) Soon after, on May 23, 2013, Bobrowski wrote a letter to Plaintiff, which stated:

As you know, you have been out of the workplace and field since December 21, 2012. In addition, this time has not been approved under Teva's Family Medical Leave Policy and Teva's Short Term/Long Term disability plans. Thus, your time is currently categorized as personal, unpaid, non-FML leave. Also, since that time, Teva has provided you with full benefits and use of a company car.

For approximately five (5) months, the Company has accommodated your requested leave and kept your position vacant pending your return. We ask that you notify us no later than May 31, 2013 as to your work status. Please have your physician review your job description and complete the Physical Capabilities Checklist (attached), confirming if you are fit for duty and identifying any restrictions or accommodations necessary and, indicating if/when you will be able to return to work....

If you are unable to return to work on or around June 3, 2013, and perform the essential function of your job, with or without accommodation, you will be administratively laid off from your employment. However, if you are laid off, you are invited to contact us when you are able to return to work to discuss any available positions for which you may be qualified[.]

(Id. , R. 81–12 at 18, May 23, 2013, Bobrowski Letter.)

In response, on May 29, 2013, Plaintiff faxed a letter to Teva's nurse care manager, Donna Montagna, representing that her physician had released her to return to work on June 3, 2013. (Id. , R. 81–12 at 20, May 29, 2013, Keen Letter.) Attached to the fax was the Physical Capabilities Checklist (the "Checklist") that Teva had enclosed with Bobrowski's May 23 letter, which was completed and signed by Dr. Shapiro. (Id. ) The Checklist detailed Plaintiff's physical capabilities and limitations, indicating that she could: (1) lift, carry, push, and pull up to 10 pounds; (2) sit continuously; (3) stand, walk, and drive frequently; and (4) bend, squat, reach above her shoulder, and kneel occasionally. (Id. )

Despite Plaintiff's letter enclosing the Checklist, Montagna instructed Plaintiff to not return to work on June 3, 2013. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 10.) Montagna told Plaintiff that she was not cleared to return to work because "someone in HR thinks you need surgery." (Id. , R. 86–5, Keen Oct. 14 Dep. Tr. at 74.) Specifically, Plaintiff understood that someone in Teva's human resources department told Montagna that Plaintiff could not return to work until she underwent the surgery that was previously scheduled for May 17, 2013, but had been cancelled. (Id. at 74–76.) Shortly thereafter, on June 5, Plaintiff called Defendants' compliance hotline and claimed that Defendants discriminated against her on the basis of her disability. (16–cv–9964, R. 28, Answer to Am. Compl. at 5.)

Defendants denied Plaintiff's return in early June because they had reviewed the Checklist and concluded that there was a lack of clarity and agreement as to Plaintiff's work-related restrictions and necessary accommodations. (14–cv–9626, R. 86–8, Bobrowski Oct. 19 Dep. Tr. at 103–09.) Plaintiff's surgery that was originally scheduled for May 17, 2013, but later cancelled, eventually took place in July 2013. (Id. , R. 89, Defs.' Resp. to Pl.'s SOAMF ¶ 10.) Following the surgery, on August 22, 2013, Plaintiff faxed another Checklist to Teva. (See id. , R. 86–1, Pl.'s Resp. to Defs.' SOMF ¶ 23.) Teva advised her that, because she had been absent from work for over six months, she needed to complete a "return-to-work" examination. (Id. , R. 86–5, Keen Oct. 14 Dep. Tr. at 78.)

On August 27, 2013, Plaintiff completed that examination. (Id. at 78–79, 85.) Following this examination, Montagna called Plaintiff and told her that there was "a problem" with the results and therefore she requested that Plaintiff undergo a second examination. (Id. at 86–87.) Specifically, Plaintiff was informed that she had to undergo a second test because the first test found...