Opinion
No. 98 C 7583
February 17, 2000
MEMORANDUM OPINION AND ORDER
In his Amended Complaint, Trevor Bull ("Bull") alleges that he was retaliated against for exercising his First Amendment rights (Count I); that he was subject to retaliatory discharge under Illinois law (Count II); that his rights under the Americans with Disabilities Act ("ADA") were violated (Count III); that he was retaliated against in violation of the ADA (Count V); and that he was subject to intentional infliction of emotional distress ("IIED") (Count IV). Before this court is Sandra Coyner's ("Coyner"), Renee L. Hageman's ("Hageman"), and the City of Wheaton's ("City") (collectively, "Defendants") motion for summary judgement. For the reasons discussed below, Defendants' motion is granted in part and denied in part.
I. Factual Background
The City is an Illinois municipal Corporation that operates WCTV, a public cable access television station ("station") for the benefits of its residents. Hageman serves as the Director of Human Resources for the City. Don Rose ("Rose") is the City's attorney. Coyner has been employed by the City since 1992, first as a municipal cable access producer and subsequently as a station manager and production manager. Dean Smits ("Smits") is Cable Director of the station and Gary White ("White") is a producer. James Chambers ("Chambers") and Joseph Kreml ("Kreml") were also employees of the station at all relevant times. Initially, Bull volunteered as an access producer for the station from 1992 to 1994. In 1994, he became employed as a part-time cable intern.
Bull suffers from Retinitis Pigmentosa, a degenerative eye disease that renders him legally blind. Defendants were aware of Bull's condition. As an accommodation for his vision difficulties, Bull was provided with a magnifying screen for use with his computer. Claiming that the magnifier did not work, Bull discontinued its use and instead requested a large screen 17 inch monitor. Bull's vision difficulties rendered him unable to drive. Station employees often gave him rides to and from work while on the City payroll. When Coyner learned of this practice, she prohibited employees from driving Bull on City time.
In 1993, Bull first reported to his station supervisors that Coyner was, in violation of City policy and without the City's approval, using station equipment and facilities for a private commercial project for which she was paid a fee. No disciplinary action was taken against Coyner. Bull again reported Coyner's misdeeds to Smits in 1995. When Coyner was informed about Bull's allegations against her, Bull contends that she told him, prior to making her own allegations against him regarding marijuana use, "I'm going to get you for this. Just wait." Coyner denies making such a statement. When still no action was taken against Coyner, Bull met with Hageman in June 1996, providing her with the names of people who could verify his allegations of Coyner's misuse of station equipment. Bull's sources were never contacted and Coyner never disciplined, although she did admit to using station equipment for personal financial gain.
In August 1995, Coyner told Smits that she had observed Bull smoking marijuana on station premises. When asked about the details surrounding the incident, Coyner stated that she merely saw a hand-rolled cigarette and that she detected no smell of marijuana. She did not remember if Bull was alone when she saw him, nor what he was wearing, and she admit that she was basing her allegation on rumors passed on by unidentified coworkers that Bull had come to work "stoned." White also informed Smits that he believed that he had seen Bull light a marijuana cigarette "but within a couple of seconds of him lighting it, someone came in and it was gone." Bull denied the incident, and offered to take a drug test. Nevertheless, he was given a five day suspension. Bull's appeal of the suspension, which he claimed was an act of retaliation for reporting Coyner, was upheld by the City Manager. Immediately after that incident, Smits contacted Hageman and recommended that the City terminate Bull. She declined to act upon his request because she believed that "it might appear that the City was out to get [Bull] and the City would be very vulnerable in possible litigation."
In May 1996, a city-wide wage survey was conducted, as a result of which Bull's salary, among others, was increased to more than double its previous level. Before the pay raise, Bull had been receiving Social Security Disability benefits with an outside earnings limitation. During that time, he had been working approximately 30 hours per week. After his salary increase, however, his hours were cut to approximately 15 hours per week. Defendants allege that Bull requested the cut in hours so that he could remain eligible for the disability benefits. Bull offers a different version of events. He maintains that he preferred the new pay scale so that he could get off the benefits. In fact, he called social security to inform them that he would no longer be on their rolls.
On the morning of June 6, 1996, Chana Bernstein ("Bernstein"), an independent access producer, came to the station to check out station equipment. Bull told her that she would have to come back later that afternoon when the station opened. Bull alleges that the station did not open to the public until 2 p.m. to allow station staff to work uninterrupted. The City contends that Bull had no authority to turn away Bernstein's request. Bernstein lodged a complaint against Bull and Bull was issued a verbal reprimand by Coyner. In addition, on June 19, Bull had a verbal disagreement with White, for which he was given a written reprimand, because Bull complained about having to answer an excessive number of personal phone calls for Bernstein. Station policy dictated that personal phone calls be limited to emergency situations. Defendants concede that Bernstein indeed "demanded more attention than other producers" and that she was considered by most of the staff as an extremely difficult person with whom to work.
In June 1996, Coyner began keeping a daily log concerning Bull. In a 1997 evaluation, Coyner rated Bull's work performance as a low satisfactory, but allegedly recommended a pay raise nevertheless. Bull was never given one. In May of 1998, Bull asked to work on a project with the Kane County Cougars, but the project was instead assigned to a Public Relations staff person. Apparently, Bull had been initially working on the project, and when it was reassigned, he refused to reveal the name and telephone number of the Cougars contact person with whom he had been talking. In a meeting held on May 13, Bull was questioned by Hageman about the Cougars incident. At that same meeting, Hageman, relying on scripted questions, interrogated Bull about whether he had a valid driver's license and whether he drove himself to work. In a July 1998 evaluation, Coyner gave Bull a less than satisfactory rating, but she recommended a retroactive pay increase. Bull's raise had in fact taken effect in May 1998, well before Coyner's recommendation, and thus no further change was made in response to Coyner's request. On August 7, 1998, Bull was instructed to write a newsletter article, but failed to do so. Bull states that he was given less than ten minutes to complete the assignment, while Defendants maintain that he was given two hours.
On or about July 1998, Bull's work schedule was revised so that he would work the evening shift. Defendants claim that station employees lodged complaints against him, thus triggering the schedule change. Defendants identified two employees who had complained, but one of them, when deposed, denied that he had ever done so. Defendants now assert that the schedule change was based on the other employee's complaint. Defendants maintain that they decided to terminate Bull on August 11, 1998, but Bull points out that Rose authorized the termination at a May 15, 1998 meeting. On August 12, Bull filed a complaint alleging discrimination in violation of the ADA with the EEOC. On August 13, Bull met with Hageman. At that meeting, Bull gave her his EEOC charge and she handed him a termination letter. On August 14, Bull filed his second EEOC complaint, this time alleging retaliatory discharge.
II. Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv. Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
The movant bears the burden of establishing that there exists no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). If the movant meets this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. A scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]."Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Weighing evidence, determining credibility, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Anderson, 477 U.S. at 255, 106 S.Ct. at 2515.
III. Analysis
A. Free Speech Claims
A state cannot discharge an employee for reasons that infringe on the employee's constitutionally protected interest in freedom of expression. Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1648, 1687 (1983). In mounting a challenge to such a discharge, a plaintiff must demonstrate first, that her speech was constitutionally protected, and second, that the defendant retaliated against her because of that speech. Vukadinovich v. Bd. of Sch. Trustees of the Michigan City Area Sch., 978 F.2d 403, 408 (7th Cir. 1992). In Counts I and II respectively, Bull asserts a claim under § 1983 in which he alleges that his termination constituted retaliatory discharge in violation of his First Amendment rights as well as Illinois law.
1. Constitutionally Protected Speech
Speech concerning public issues occupies the "highest rung of the hierarchy of First Amendment values." Connick, 461 U.S. at 145, 103 S.Ct. at 1689. When, on the other hand, employee expression is not related to a matter of political or social concern to the community, government officials enjoy wide latitude in managing their offices without intrusive oversight by the judiciary. Id 461 U.S. at 146, 103 S.Ct. at 1690. A determination of whether speech deserves constitutional protection is made by balancing opposing interests. Accordingly, the courts are charged with weighing "the interests of the employee as a citizen, in commenting upon matters of public concern [against the] the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees" Id., 461 U.S. at 142, 103 S. Ct. at 1687 (quoting Pickering v. Bd. of Educ., 391 U.S. 589, 568, 88 S.Ct. 1731, 1734 (1968)).
In order to fall within the purview of constitutionally protected expression, the speech at issue must relate to a matter of public concern. Connick, 461 U.S. at 146, 103 S.Ct. at 1690;Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir. 1998). Bull made repeated charges to his supervisors of misappropriation of public resources by Defendant Coyner. Although Defendants argue that Bull's speech did not constitute a matter of public concern, their contention is baseless. First of all, Bull had nothing to gain personally from exposing Coyner's wrongdoings. See Harding v. Rosewell, 22 F. Supp. 806, 813 (N.D. Ill. 1998) ("If the speech was to further some purely private interest rather than to bring wrongdoing to light, it would not be constitutionally protected."). Moreover, the courts have repeatedly underscored the "importance of an employee's interest in pointing out a misuse of public funds or other breach of public trust." Pronst v. Bitzer, 39 F.3d 148, 152 (7th Cir. 1994) (also stating that "speech that seeks to expose improper operations of the government or questions the integrity of government officials clearly concerns vital public interests"). See also Pickering, 391 U.S. at 571-72, 88 S. Ct. at 1736 (finding that a teacher's criticism of the school board's allocation of funds constitutes protected expression); Conner v. Reinhard, 847 F.2d 384, 393 (7th Cir. 1988) ("[Plaintiff was] voicing her personal opinion as to whether the taxpayer's money could be used for a particular purpose. Because that topic is a matter of public concern, it is entitled to first amendment protection.") In light of the law, this Court finds that Bull's allegations constituted a matter of public concern. If his termination occurred in response to these allegations, that decision cannot be relegated to a mere "personnel decision" falling outside the purview of First Amendment scrutiny.
In their statements of fact as well as their briefs, Bull and Defendants argue at substantial length in an effort to prove or disprove Coyner's wrongdoings. In effect, the parties use this motion to try Coyner's alleged misdeeds in using City equipment for private financial gain. If Bull's allegations are indeed true, this Court is less than favorably impressed by Coyner's and the City's blatant breach of the public trust. Nevertheless, the veracity of Bull's allegations and the wrongfulness of Coyner's actions are entirely irrelevant to the instant case. Should this case proceed to trial, the Court will not tolerate the parties using the trial as a venue for trying Coyner's actions.
Once the Court finds that Bull's speech embraced a matter of public concern, the burden shifts to Defendants to "clearly demonstrate" that the exercise of his speech "substantially interfered" with official responsibilities. Connick, 461 U.S. at 150, 103 S.Ct. at 1691. Defendants make no claim that Bull's protected expression impeded his ability to carry out his own work responsibilities or the station's. Compare Propst, 39 F.3d at 153 (employer's operations significantly disrupted where employee's speech caused low morale among workers and delayed laboratory work of the employer). When Bull's right to expose public misdeeds is weighed against Defendants' interest in management of City work, the former prevails. As a matter of law, Bull's expression was constitutionally protected.
2. Causal Connection
Establishing that his speech is constitutionally protected is only the first obstacle Bull must overcome to survive summary judgment. He must also establish a causal connection between his reporting of Coyner's misdeed and the adverse actions taken against him. In other words, Bull's speech must have served as a "substantial or motivating factor" for the alleged acts of retaliation. Vukadinovich, 978 F.2d at 408. The plaintiff bears the burden of showing that defendants would not have taken the challenged actions "but for" the constitutionally protected conduct. Thomsen v. Romeis, 198 F.3d 1022, 2000 WL 10271, at *4 (7th Cir. 2000). Once the plaintiff meets this burden, the burden shifts to the defendant to show by a preponderance of the evidence that it would have taken the same action even in the absence of the protected conduct. Id.
As a preliminary matter, Defendants question whether Bull suffered any adverse actions at all. To be considered materially adverse, the challenged action must make the employee worse off.Id. Adverse actions need not be "monstrous" to be actionable.Thomsen, 2000 WL 10271, at *5 Instead, the acts need only "create the potential for chilling [an] employee's [constitutionally protected] speech." Id. Clearly, Bull's termination constitutes an adverse act. The events leading up to it — including the sharp reduction in his hours which effectively nullified Bull's substantial pay raise, as well as the flimsily supported marijuana allegations that lead to his suspension — also represent adverse actions.
Defendants are entitled to summary judgment if no reasonable jury could find that these adverse actions were taken against Bull because of his protected expression. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Viewing all reasonable inferences in Bull's favor, the Court finds that genuine issues of fact remain for resolution by the jury. Bull first brought Coyner's alleged misdeeds to the attention of City officials in 1993. At that time, he was volunteering at the station. Although Bull does not allege that any adverse actions were taken against him in the aftermath of this first report, a jury could reasonably conclude that Defendants did not and could not do so because they did not possess authority as an employer to retaliate against Bull.
In 1995, after Bull started working at the station and Coyner became his supervisor, Bull again advised the City, this time speaking with Smits, about the alleged misappropriation of City resources. After Smits confronted Coyner about Bull's charges, Bull alleges that she told him, "I'm going to get you for this. Just wait." Coyner, on the other hand, denies ever having made the remark. Shortly thereafter, Coyner accused Bull of smoking marijuana on station property. When asked about the details surrounding the incident, Coyner stated that she merely saw a hand-rolled cigarette and that she detected no smell of marijuana. She did not remember if Bull was alone when she saw him, nor what he was wearing, and she admit that she was basing her allegation on rumors spread by unidentified co-workers that Bull had come to work "stoned." White also informed Smits that he believed that he had seen Bull light a marijuana cigarette, but his story was based on a sighting of Bull wherein "within a couple of seconds of him lighting [the cigarette], someone came in and it was gone." Bull denied the incident, and offered to take a drug test. Nevertheless, he was given a five day suspension.
In May 1996, Bull was given a salary increase, but at the same time, Coyner cut his hours, effectively nullifying his pay raise. Defendants allege that Bull requested the cut in hours so that he could remain eligible for disability benefits. On the other hand, Bull maintains that he preferred the new pay scale so that he could get off the benefits. In fact, he called social security to inform them that he would no longer be on their rolls. A number of fact issues remain for the jury. First, the jury must assess Coyner's credibility against Bull's in order to determine whether Coyner indeed made the direct threat of retaliation. Moreover, the jury must weigh the evidence presented in order to determine whether Coyner's threats were carried out, first in the form of weakly founded accusations of marijuana use, then by Bull's suspension, as well the cutting of his work hours. Anderson, 477 U.S. at 255, 106 S.Ct. at 2515.
Furthermore, a reasonable jury could find that, rather than the explanations proffered by Defendants, Bull's speech in fact served as the motivating factor for the ultimate retaliatory act taken against him, his discharge. In June of 1996, Bull again brought charges of Coyner's misuse of City equipment to the attention of his supervisors, this time to Hageman. That same month, Coyner began keeping a daily log concerning Bull. Shortly thereafter, in July 1996, Bull was issued two reprimands over incidents with Bernstein. With respect to the first Bernstein incident, the jury must decide whether or not Bull properly precluded Bernstein from checking out equipment in the morning. Bull contends that he was authorized to tell Bernstein to return later that afternoon because the station did not open to the public until 2 p.m. In contrast, the City contends that Bull had no authority to turn away Bernstein. With regard to the second Bernstein incident, as Defendants concede, Bernstein demanded a lot of attention. In light of the station policy prohibiting non-emergency personal calls that Bernstein herself seemed to be violating, a jury might conclude that Bull's actions were consistent with company policy when he refused to take messages for her. Therefore, a jury could conclude that the reprimands that Bull received for the Bernstein incidents were not warranted and accordingly did not serve as the real motivating factors for his discharge.
In May of 1998, Bull asked to work on a project with the Kane County Cougars, but the project was instead assigned to a Public Relations staff person. Apparently, Bull had been initially working on the project, and when it was reassigned, he refused to reveal the name and telephone number of the Cougars contact person with whom he had been talking. In a meeting held on May 13, Bull was questioned by Hageman about the Cougars incident. At that same meeting, Hageman, relying on scripted questions, interrogated Bull about whether he had a valid driver's license and whether he drove himself to work.
In addition, Defendants contend that Bull's work schedule was revised in an effort to separate him from his colleagues. Apparently, two co-workers had complained that they did not want to work with Bull without a supervisor present. One of the alleged complaining co-workers, however, denied during his deposition ever asking to be separated from Bull. The complaints of the other co-worker have not been substantiated as far as the Court is aware, although Defendants conveniently assert that Bull's schedule change was based "primarily" on the second co-worker's complaints. On August 7, 1998, Bull was instructed to write a newsletter article, but failed to do so. Bull states that he was given less than ten minutes to complete the assignment, while Defendants maintain that he was given two hours. Viewing the evidence in a light most favorable to Bull, a jury could conclude that Defendants were attempting to fabricate complaints against Bull in an effort to discharge him — whether it be by meddling in Bull's personal business regarding the validity of his driver's license, devising purported complaints by colleagues, or setting Bull up in circumstances in which he was bound to fail. On August 13, 1998, Bull was terminated.
Bull's refusal to pass on the contact information for the Kane County Cougars does seem to have been a legitimate instance of his insubordination. Yet taken together, Defendants' proffered reasons for discharge ring hollow. The timing as well as the nature of the incidents detailed previously provide a reasonable basis for jurors to conclude that, but for Bull's protected expression, he would not have suffered the adverse actions taken against him. Whether Bull's exercise of his First Amendment rights played a substantial motivating factor in the decision to terminate him is a genuine issue of material fact that must be resolved by the jury.
3. State Claim
In addition to the Federal constitutional claim, Bull also mounts a challenge against Defendants under Illinois law. Generally, Illinois law permits an employer to discharge an employee-at-will "for any reason or for no reason." Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 525, 478 N.E.2d 1354, 1356 (Ill. 1985). An exception to that general rule, however, has been carved out by the Illinois courts. To prevail on a claim for retaliatory discharge, a plaintiff must demonstrate that (1) she was discharged; (2) the discharge was in retaliation for her activities; and (3) the discharge violated a clearly mandated public policy of the state. Propst, 39 F.3d at 154. Illinois public policy embraces "what is right and just and what affects the citizens of the State collectively. It is to be found in the State's constitutions and statutes and, when they are silent, in its judicial decisions." Daniel v. Village of Hoffman Estates, 165 Ill. App.3d 772, 774, 520 N.E.2d 754, 756 (Ill.App.Ct. 1987).
As discussed previously with respect to his federal claim, a genuine issue exists as to whether Bull was terminated for engaging in protected speech. In Barr, the Illinois Supreme Court rejected a claim of retaliatory discharge based on the infringement of an employee's First Amendment rights. 106 Ill.2d at 527, 478 N.E.2d at 1357. In dismissing that claim, however, the court in Barr stressed that the constitutional guarantee of free speech is directed only at only governmental actors, not private employers. 106 Ill.2d at 526, 478 N.E.2d 1356. "When, as here, the employer is a governmental actor, there is no doubt Illinois would regard the First Amendment and the parallel state constitutional provision (Ill. Const. Art. I, § 4) as establishing a clearly mandated public policy." Miller v. State of Illinois, 681 F. Supp. 538, 547 (N.D. Ill. 1988). See also Russ v. Pension Consultants Co., 182 Ill. App.3d 769, 775, 538 N.E.2d 693, 696 (Ill.App.Ct. 1989) (noting that the Illinois Supreme Court has "held that public policy may be found in federal law);Id. 182 Ill. App.3d at 775, 538 N.E.2d at 696 (discussing how courts have found a contravention of clearly mandated public policy in "whistle blowing" cases "where the employee is dismissed for reporting that illegal or wrongful activities have been engaged in by a fellow employee or employer"). Accordingly, Bull survives summary judgment on his state claim of retaliatory discharge.
B. ADA Claims
In Counts III and V, Bull contends that Defendants discriminated against him in violation of the ADA and retaliated against him for filing such charges.
1. Disability Discrimination
The ADA requires employers to make reasonable accommodations to qualified individual with a disability. Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996). In his amended complaint, Bull maintains that Defendants failed to provide him with the following accommodations: requiring employees to drive him to and from work; a schedule in which he would not have to work at nights; and a 17 inch monitor for his computer.
Bull suffers from Retinitis Pigmentosa, which renders him legally blind, as well as a back injury. The parties do not dispute that Coyner was aware of Bull's condition. The requested accommodations, however, were not proper. Defendants insisted that Bull's colleagues not drive him to and from work on company time. Coyner also changed Bull's schedule so that he was forced to work at nights, even though it was a hardship because of his vision problems to travel to and from work in the evenings. Accommodations are directed at enabling an employee to perform the essential functions of a job. 29 C.F.R. § 1630.2 (o)(1)(ii). Activities that fall outside the scope of the job, like commuting to and from the workplace, are not within the province of an employer's obligations under the ADA. After all, the ADA addresses discrimination with respect to any "terms, condition or privilege of employment." 42 U.S.C. § 12112 [emphasis supplied]. Coyner, with full knowledge of Bull's vision problems, may have been insensitive or even malicious in requiring him to work at nights. But she had no legally-imposed obligation to be thoughtful and certainly no duty to require her employees to drive Bull on company time. Therefore, Defendants cannot be charged under the ADA with the duty of providing for Bull's transportation. See Arbogast v. Alcoa Build. Prod., 165 F.3d 31, 1998 WL 551933, at *2 (7th Cir. Aug. 27, 1998) (stating that an employer "might voluntarily choose to provide [an employee with] transportation to be helpful, or to maximize its employees' capabilities, but the ADA does not require that it do so.")
With regard to Bull's request for a 17 inch monitor, there is no allegation that Bull was unable to perform the essential function of his job without it. Even though he may have preferred the monitor over the screen magnifier that he was provided with, Defendants were not bound to oblige him under the law. Accommodations are defined as "[m]odifications or adjustments to the work environment . . . that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2 (o)(1)(ii). Since Bull was able to perform his job with the screen magnifier, that was a sufficient accommodation. See Gile, 95 F.3d at 499 ("An employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation.") Therefore, summary judgment is granted with respect to Bull's ADA claim.
2. Retaliation under ADA
Furthermore, Bull maintains that he was retaliated against for filing an ADA claim against Defendants.
The ADA protects any individual who "has opposed any act or practice made unlawful by [the ADA] or . . . has made a charge [under the ADA]." 42 U.S.C. § 12203 (a). The ADA further makes it "unlawful to coerce, intimidate, threaten, or interfere with any individual . . . on account of his or her having . . . exercise[d] . . . any right granted or protected by [the ADA]." 42 U.S.C. § 12203 (b). A plaintiff bringing a retaliation claim may prevail by presenting either direct evidence of discrimination or indirect evidence under the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Under the indirect method, a plaintiff must demonstrate that (1) she engaged in statutorily protected expression; (2) she suffered an adverse action; and (3) there is a causal link between the protected expression and the adverse action. Silk v. City of Chicago, 194 F.3d 788, 799 (7th Cir. 1999).
Bull filed a complaint with the EEOC on August 12, 1998. On August 13, 1998, Bull met with Defendants. During this meeting, the parties exchanged documents: Bull handing over his EEOC charge and Defendants handing over Bull's termination letter. The parties dispute which letter was handed over first. This was not a duel and the sequence of the exchanged letters is not critical to this case. What is important is that the decision to discharge Bull was made well before his EEOC charge was filed. According to the parties, the termination decision was made, at the latest, on August 11, 1998, prior to the filing of the EEOC complaint. As such, there exists no causal connection between Bull's termination and his filing of the charge. Defendants are entitled to summary judgment on Bull's retaliation claim under the ADA.
See Def.'s 12M Statement ¶ 47 (stating that Defendants made the decision to terminate Plaintiff on August 11, 1998); Pl.'s 12N Response ¶ 47 (disputing that date and asserting that emails regarding Bull's discharge were exchanged well before that time and that Rose had authorized the discharge as early as May 15).
C. Intentional Infliction of Emotional Distress
In his amended complaint, Bull also includes a claim for intentional infliction of emotional distress ("IIED") under Illinois law.
To establish this claim, a plaintiff must demonstrate that (1) she was subject to extreme and outrageous conduct; (2) she suffered severe emotional distress as a result of such conduct; and (3) the defendant intended to cause or recklessly disregarded the probability of causing severe emotional distress. McGrath v. Fahey, 126 Ill.2d 78, 85, 533 N.E.2d 806, 809 (Ill. 1989); Grey v. First Nat'l Bank of Chicago, 169 Ill. App.3d 936, 943, 523 N.E.2d 1138, 1143 (Ill.App.Ct. 1988). Extreme and outrageous conduct is defined as conduct that is "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency." Public Fin. Corp. v. Davis, 66 Ill.2d 65, 90, 360 N.E.2d 765, 768 (Ill. 1976). Moreover, the emotional distress must be "so severe that no reasonable person could be expected to endure it." Grey, 169 Ill. App.3d at 943, 523 N.E.2d at 1143.
Even when viewed in a light most favorable to Bull, Defendants' conduct cannot be deemed, for the purposes of an LIED claim, "extreme and outrageous." Even if a question of fact remains as to whether Defendants' conduct violated Bull's free speech rights, their conduct does not go beyond the "bounds of decency" as that term is construed in Illinois law. The IIED claim is accordingly dismissed. Cf. Grey, 169 Ill. App.3d at 945, 523 N.E.2d at 1144 ("The courts have recognized that questioning of job performance and personality conflicts are unavoidable aspects of employment and that stress is often the result; however, such stress cannot from the basis of the tort of intentional infliction of emotional distress or virtually every employee would have a cause of action.")
IV. Conclusion
For the foregoing reasons, summary judgment is DENIED with respect to Counts I (retaliation in violation of the First Amendment) and II (retaliatory discharge under Illinois law), and GRANTED with respect to Counts III (ADA), IV (IIED), and V (retaliation in violation of ADA).