Hillmann v. City of Chi.

834 F.3d 787

Robert P. Hillmann, Plaintiff-Appellee/Cross-Appellant,

v.City of Chicago, Defendant-Appellant/Cross-Appellee.

Nos. 14-3438 &

14-3494

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2015

Decided August 23, 2016

Rehearing and Rehearing En Banc Denied October 17, 2016

Kathryn M. Reidy, Esq., Bayview, ID, for Plaintiff-Appellee/Cross-Appellant.

Myriam Z. Kasper, Office of the Corporation Counsel, Chicago, IL, Ruth F. Masters, Oak Park, IL, for Defendant-Appellant/Cross-Appellee.

Before Flaum, Manion, and Sykes, Circuit Judges.

Sykes, Circuit Judge.

For nearly three decades, Robert Hillmann worked for the City of Chicago in its Department of Streets and Sanitation. In July 2002 the City eliminated his position in a citywide reduction in force (“RIF”). Two years later he sued the City alleging that he was targeted for inclusion in the RIF because he asserted his rights under the Illinois Workers' Compensation Act (“IWCA”), 820 ILL. COMP. STAT. 305/1 et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.

This long-running case twice proceeded to trial. In the first trial, a jury found for the City on the IWCA retaliatory-discharge claim. For reasons not entirely clear to us, the ADA claim was tried to the court at the same time. But the judge died before issuing a decision, and a successor judge ordered a new trial on both claims based on an evidentiary error. The second trial yielded a split result. The jury found in Hillmann's favor on the IWCA claim and returned a seven-figure damages verdict. The judge found for the City on the ADA claim.

Both sides appealed. The City contends that the judge's new-trial order was improper and asks us to reinstate the first jury's verdict. Alternatively, the City argues that the IWCA claim fails as a matter of law because Hillmann produced no evidence of causation. As a fallback argument, the City seeks a new trial limited to damages. Hillmann's cross-appeal asks us to reverse the judge's bench decision rejecting his ADA claim.

We decline the City's invitation to second-guess the successor judge's decision to order a new trial. The first judge had excused two of the City's managerial employees from testifying based on their invocation of the Fifth Amendment; the second judge reasonably questioned the breadth of that ruling. Regardless, we agree with the City on the merits: Neither of these claims should have been tried. To prevail on his claim that he was discharged for exercising his rights under the IWCA, Hillmann needed to prove causation. At a minimum this required proof that the relevant decision-maker knew about his workers' compensation claim. But no evidence suggests that the RIF decision-maker knew about Hillmann's claim. The ADA claim likewise fails for lack of proof of causation. Hillmann has no evidence that the City withheld merit raises or targeted him for the RIF based on his request for an ADA accommodation. The City is entitled to judgment across the board.

I. Background

Hillmann began working for the City of Chicago's Parks District in 1973. About five years later he moved to a job as a truck driver in the City's Department of Streets and Sanitation. In 1984 he developed cervical radiculopathy, a work-related injury that caused pain, weakness, limited mobility, and loss of sensation in his right arm. In 1995 he entered into an accommodation agreement with the City that allowed him to avoid repetitive work with his injured right arm. As part of this agreement, Hillmann was reassigned to the position of chief timekeeper in the Bureau of Electricity, a division of the Streets and Sanitation Department. He never performed all of the timekeeping duties required by the job description, but he performed the essential functions and did other tasks as directed by his supervisor.

Hillmann's supervisor during this time was Deputy Commissioner Jim Heffernan. In May 2000 Heffernan was reassigned to a different post and Bart Vittori was temporarily assigned to run the Bureau. Vittori gave Hillmann additional duties that required repetitive use of his injured right arm, but Hillmann did not immediately inform Vittori of his physical restrictions. Instead, he went to Heffernan and Hugh Donlan, the Bureau's personnel liaison to the Department. Heffernan told Hillmann that he was no longer in charge and couldn't help. For the next two months, Hillmann performed the additional tasks Vittori assigned to him, exacerbating his condition.

On July 1, for the first time in his career, Hillmann did not receive a merit raise. On August 8 Hillmann finally went to Vittori and told him that he could not physically perform the additional duties he was assigned. In response Vittori reassigned a supervising timekeeper to other responsibilities and assigned the supervisor's duties to Hillmann. About ten days passed before this shift of responsibilities could be accomplished, however, so Hillmann reported for work but performed no tasks.

On August 15 Hillmann's attorney sent a letter to Barbara Smith in the City's Corporation Counsel's office requesting that Hillmann's 1995 accommodation agreement be honored. The next day Smith discussed the matter with Catharine Hennessey, the Department's labor-relations liaison. In response Hennessey instructed Donlan to write a new job description for Hillmann. The first paragraph of the description covered the duties Hillmann had performed as chief timekeeper; the second paragraph covered the reassigned duties of a supervising timekeeper. This paragraph also anticipated the Department's planned implementation of the Kronos computerized payroll system. Hillmann testified that the second paragraph of his new job description included tasks that he could not physically perform.

On August 16 Brian Murphy replaced Heffernan as Deputy Commissioner. In that role Murphy was responsible for supervising all Bureau of Electricity employees. Murphy's direct supervisor was John Sullivan, the Managing Deputy Commissioner of the Department of Streets and Sanitation.

On August 23 Hennessey instructed Hillmann to report for a fitness-for-duty medical examination to reassess the question of his accommodation. During this time, Hillmann also saw his own physician, who noted that his condition had worsened. On September 1 Hillmann was transferred to the Construction Division of the Bureau of Electricity where he was assigned to answer phones. That same day Hillmann filed a workers' compensation claim with the Illinois Industrial Commission. On October 1 another merit raise was denied. On October 7 he was again transferred within the Bureau, this time to the Transportation Division, where he was assigned to answer phones.

Throughout the late summer and fall, Hillmann continued to see his treating physician and was examined by medical professionals in connection with his workers' compensation claim. On December 21 Hillmann received a letter signed by Hennessey and delivered by Donlan acknowledging his inability to perform the tasks in his new job description and advising him that “the most viable option for you is to apply for a Leave of Absence[ ] and to return to work when your physical condition allows you to perform the duties of your job title.” The letter also suggested that Hillmann could “request a Work Evaluation from the Department of Personnel to determine if your physical restrictions will allow you to perform in some other capacity in another job title.” Hillmann testified that when Donlan gave him the letter, he advised him not to report to work. Hillmann stopped reporting for work but did not apply for a leave of absence.

For the next two months, Hillmann underwent further medical evaluations in connection with his workers' compensation claim. In January 2001 he was referred to Dr. Damon Arnold, director of occupational health at Mercy Works, an agency the City consults with on workers' compensation matters. On February 26, 2001, Dr. Arnold issued a “discharge sheet” clearing Hillmann to perform sedentary work with limited use of his right upper arm—in other words, a desk job with minor office work. The discharge sheet was sent to Jack Drumgould, the Department's Assistant Commissioner in charge of personnel. Drumgould wrote the following on the discharge sheet: “Cannot accommodate with restrictions” but “CAN accommodate in Bureau of Traffic Services with restrictions as of 3–02–01.”

Cleared to return to work, Hillmann reported to Drumgould and was “detailed” to the Bureau of Traffic Services. A “detail” is just a temporary work assignment; Hillmann remained an employee of the Bureau of Electricity with the title of chief timekeeper. When Hillmann showed up for work in the Bureau of Traffic Services, he was directed to the auto pound where he was verbally assigned minor, menial duties. In this assignment he racked up a pattern of tardiness and absenteeism due to sick leave. In the late spring he applied for and was granted a transfer from the 8 a.m.-to-3 p.m. shift to the noon-to-8 p.m. shift. He was denied merit raises in January 2002, March 2002, and May 2002.

In 2002 the City faced a serious budget shortfall necessitating a citywide RIF. Each department was given a target for reducing its workforce, and department heads were directed to identify which positions to include in the RIF and submit a list to the Office of Budget and Management. Sullivan was the Department's main contact for its RIF list, but Al Sanchez, the Streets and Sanitation Commissioner, made the final decision about which departmental positions would be included.

Murphy prepared a preliminary list of positions he thought could be eliminated from the Bureau of Electricity without damaging the delivery of services. He included the chief timekeeper and supervising timekeeper positions because no one was then performing those functions and the Department was completing its transition to Kronos, a computerized payroll system, making these positions...