JOHN Z. LEE, District Judge.
Plaintiffs Elizabeth Armour ("Armour") and Julie Castro ("Castro") bring this action against Defendants Homer Tree Service, Inc.,
Defendants seek partial summary judgment on Armour's complaint, and Counterclaimants Homer Tree Service and Homer Management seek summary judgment on their breach of fiduciary duty, unjust enrichment, and conversion counterclaims. Defendants also seek summary judgment on Castro's complaint in its entirety. For the reasons that follow, the motions [146] [149] are granted in part and denied in part.
Plaintiffs are former employees of one or more of the Homer Companies. See Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 12, ECF No. 148; Defs.' LR 56.1(a)(3) Stmt. (Castro) ¶ 5, ECF No. 151. Armour was hired on July 7, 2014, by Reposh. Defs.' LR 56.1(a)(3) Stmt. ("Armour") ¶¶ 12, 32. At all times relevant to this dispute, Reposh served as president of Homer Tree Service, Homer Tree Care, and Homer Management, and managing member of Homer Industries. Id. ¶ 7.
Upon her hiring, Armour entered into an employment agreement with Homer Tree Service to serve as its Chief Executive Officer. Id. ¶ 13. The agreement provides that "[Homer Tree Service] and its affiliate companies are desirous of engaging the services of [Armour] to operate, coordinate, and manage the office and financial affairs of [Homer Tree Service] and its affiliate companies." Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 2, ECF No. 155; Defs.' LR 56.1(a)(3) Stmts. J.A., Ex. A (Armour Dep. (8/26/16)), Ex. 4. As CEO, Armour reported to Reposh, and Reposh afforded Armour substantial discretion in carrying out her duties. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 39.
Homer Tree Service, along with Homer Tree Care and Homer Industries, paid Armour's salary through January 2015. Id. ¶ 38. Armour's employment agreement remained with Homer Tree Service throughout her employment; however, in January 2015, she became CEO of Homer Management, which paid her salary thereafter. Id. ¶¶ 6, 53-54.
Armour hired Castro to serve as Director of Human Resources on October 7, 2014. Defs.' LR 56.1(a)(3) Stmt. (Castro) ¶¶ 5, 7. Castro was initially hired as an employee of Homer Tree Service. Id. ¶ 5. Like Armour, however, her position was moved under Homer Management in January 2015, and Homer Management paid her thereafter. Id. ¶¶ 7-8. Castro, for her part, asserts that "she [ ] was the Director [of Human Resources] for all of the Homer entities," and testified that she did work for all of them. Pl. Castro's LR 56.1(b)(3)(B) Stmt. ¶ 7; see Defs.' LR 56.1(a)(3) Stmts. J.A., Ex. C (Castro Dep.) at 82:1-4.
The parties dispute various facts concerning Plaintiffs' qualifications at the time of their hiring. Defendants claim that Armour misrepresented to Reposh that she had obtained a bachelor's degree from DePaul University, and that this fact was crucial to his decision to hire her. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶¶ 31-33, 90, 92. Armour, however, maintains that, prior to her hiring, she informed Reposh that she had not yet formally obtained her bachelor's degree. She claims that Reposh responded by telling her that this would not be an issue and she should nevertheless indicate that she had a bachelor's degree on her resume. Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶¶ 31-33, 90, 92;
According to Plaintiffs, a number of unlawful practices occurred at Homer during their terms of employment.
First, Plaintiffs claim that, during their employment, Reposh told them "on various occasions" that he did not want African-Americans working for the Homer Companies because of their race. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 10.
Plaintiffs cannot identify any specific time they spoke out against Reposh's discriminatory hiring practices other than February 2015. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 52; Defs.' LR 56.1(a)(3) Stmt. (Castro) ¶ 53. In February 2015, Plaintiffs describe a meeting that occurred at which both of them, along with Reposh, were present. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 14; see Castro Dep. at 49:9-53:24. At that meeting, Castro gave Reposh resumes and applications she had obtained at a job fair. Castro Dep. at 49:9-16. Castro claims that Reposh instructed Plaintiffs that "[they] were not to consider [the applicants] because most applicants were African-American." Id. at 52:8-12. Castro testified that she told Reposh, "[w]e have to consider them." Id. at 53:6-10. She further claims that, following the meeting with Reposh, she forwarded the resumes and applications to Aaron Hocking, a manager at one of the Homer Companies, told him that there were many qualified applicants in the group, and "left him to review them." Id. at 50:14-23. Defendants dispute Plaintiffs' account of the meeting on various grounds. Defs.' Resp. Pls.' 56.1(b)(3)(C) Stmt. ¶ 14. Notwithstanding what occurred at this meeting, Plaintiffs concede that they never interviewed, hired, or otherwise considered any African-American applicants during their tenure. Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶ 47; Pl. Castro's LR 56.1(b)(3)(B) Stmt. ¶¶ 31-32, 56.
Several months later, on August 17, 2015, Hocking hired Taurus Moore, an African-American applicant. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 43; Defs.' Resp. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 18; Defs.' LR 56.1(a)(3) Stmts. J.A., Ex. BB, at 11. Moore is the only African-American applicant that Defendants have identified by name as being hired by the Homer Companies during Plaintiffs' employment. See Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 43; Defs.' LR 56.1(a)(3) Stmt. (Castro) ¶ 24.
At some point around July 27, 2015, according to Plaintiffs, Reposh directed them to "terminate injured employees upon their return to work or else make them as uncomfortable [sic] to foment their departures (such as turning off the air conditioning)." Pls.' LR 56.1(b)(3)(C) Stmt. ¶¶ 43, 45. Reposh disputes that he gave any such directive. Defs.' Resp. Pls.' 56.1(b)(3)(C) Stmt. ¶¶ 43, 45. In August 2015, Plaintiffs contacted the Homer Companies' counsel with their concerns about Reposh's practices. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 46. According to them, counsel wrote a memo confirming their belief that Reposh's directive was unlawful. Id.
Armour also claims that Reposh instructed her to terminate Homer employee Matt Lovas, who complained about a ventilation issue at a shop affiliated with the Homer Companies. Armour asserts that, on August 17, 2015, she spoke with Reposh about Lovas. Pls. LR 56.1(b)(3)(C) Stmt. ¶ 60.
As noted previously, on August 18, 2015, Reposh instructed Armour to fire Castro, which she did. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 47; see also Defs.' LR 56.1(a)(3) Stmt. (Castro) ¶ 75. Three days later, on August 21, 2015, Reposh fired Armour. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 77; see also Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 69. According to Defendants, Castro was terminated because she was unqualified to perform her duties as Director of Human Resources despite representing otherwise, and she exceeded the number of permissible absences during the time she worked for Homer Management. Defs.' LR 56.1(a)(3) Stmt. (Castro) ¶ 75. Castro disputes these assertions and denies that they were the true reasons for her termination. First, she contends that she was qualified because she performed human resources management at Home Depot prior to being hired. Pl. Castro's LR 56.1(b)(3)(B) Stmt. ¶¶ 9, 75; see Castro Dep. at 195:9-15. She also denies that she exceeded her allowable leave, pointing out that Homer Management paid out some of her remaining leave balance upon her termination. Pl. Castro's LR 56.1(b)(3)(B) Stmt. ¶¶ 71,
With respect to Armour, Defendants assert that Reposh's decision to terminate her "stemmed from several breaches of her Employment Agreement, in addition to other instances of misconduct and [a] substantial decrease in employee morale that occurred during her reign." Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 71. "Among other things, Armour forwarded confidential information to her personal email address and disclosed confidential information to several third parties, obtained tuition reimbursement to which she was not entitled, purchased a new fuel management system—without authorization—for which the company had to pay a restocking fee, improperly accessed Reposh's company email account, deleting and altering an email therein, ordered surveillance on personal acquaintances and other employees, and directed [another Homer employee] to increase the hours in [her] PTO bank prior to termination." Id. ¶ 72. This purported misconduct occurred throughout Armour's employment, beginning as early as 2014. Id. ¶¶ 75, 80. For her part, Armour concedes that company morale decreased during her tenure and that certain employees complained about her management as CEO. Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶¶ 64, 66. With two exceptions,
Armour's employment agreement stated in part: "[t]his Agreement may be terminated by either party before the end of the term with or without cause, by giving thirty (30) days written notice. If [Homer Tree Service] terminates [Armour] without cause, it shall pay [her] the equivalent of four (4) months of her current salary." Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 14; Armour Dep. 8/26/16, Ex. 4, at 4-5. Upon her termination, Armour did not receive any severance pay. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 23; see Defs.' LR 56.1(a)(3) Stmts. J.A., Ex. MM, at 7.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Shell v. Smith, 789 F.3d 715, 717 (7th Cir. 2015). To survive summary judgment, the nonmoving 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). Rather, he must "establish some genuine issue for trial such that a reasonable jury could return a verdict in [his] favor." Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772-73 (7th Cir. 2012). In reviewing a motion for summary judgment, the Court gives the nonmoving party "the benefit of conflicts in the evidence and reasonable inferences that could be drawn from it." Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir. 2013). The Court must not make credibility determinations or weigh conflicting evidence. McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 752 (7th Cir. 2010).
Plaintiffs' First Amended Complaint comprises the following counts: § 1981 retaliation claim asserted by Armour against all Defendants (Count I); violation of § 20 of the IWA claim by Armour against the Homer Companies (Count II); breach of employment contract claim by Armour against Homer Tree Service (Count III); assault and battery claim by Armour against Reposh (Count IV); assault and battery claim by Armour against the Homer Companies (Count V); § 1981 retaliation claim asserted by Castro against Homer Tree Service, Homer Management, and Reposh (Count VI); and violation of § 20 of the IWA claim by Castro against Homer Tree Service and Homer Management. In their motions, Defendants seek summary judgment as to all counts except Count IV.
In Count I of Plaintiffs' amended complaint, Armour claims that she was terminated in retaliation for opposing Reposh's policy of refusing to consider African-American candidates for employment because of their race. 42 U.S.C. § 1981 "protects the right of all persons `to make and enforce contracts' regardless of race." Carter v. Chi. State Univ., 778 F.3d 651, 657 (7th Cir. 2015) (quoting 42 U.S.C. § 1981(a)). Section 1981, like Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq., encompasses retaliation claims. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008). Retaliation claims under § 1981 and Title VII are evaluated under the same framework. Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017). "Retaliation occurs `when an employer takes an adverse employment action against an employee for opposing impermissible discrimination.'" Carter, 778 F.3d at 657 (quoting Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012)).
In addition to employers, individual employees who participate in retaliatory conduct can also be liable under § 1981. Id. A § 1981 retaliation claim requires the plaintiff to prove that (1) she engaged in protected activity, (2) she suffered an adverse employment action, and (3) a causal connection between the protected activity and adverse employment action. Id. At summary judgment, there is no distinction between direct or indirect evidence of causation; rather, the court must simply inquire whether a reasonable factfinder could conclude that a plaintiff's protected activity caused the adverse employment action. Williams v. Office of Chief Judge of Cook Cty., 839 F.3d 617, 626 (7th Cir. 2016) (citing Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016)).
Defendants first move for summary judgment on behalf of Homer Tree Care and Homer Industries, arguing that Armour has not provided evidence from which a reasonable jury could conclude that Homer Tree Care and Homer Industries employed Armour. They therefore argue that Homer Tree Care and Homer Industries cannot be held to have retaliated against her under § 1981. In the Title VII context—and, by extension, under § 1981
Here, there are numerous facts from which a reasonable jury could conclude that at least some of the relevant factors weigh in favor of finding that Homer Tree Care and Homer Industries were Armour's joint employers.
What is more, there is evidence that the nature of Armour's employment was such that she served as CEO of all of the companies, including Homer Tree Care and Homer Industries. Her employment contract stated that "[Homer Tree Service] and its affiliate companies are desirous of engaging the services of [a] CEO to operate, coordinate, and manage the office and financial affairs of [Homer Tree Service] and its affiliate companies." Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 2 (emphasis added). While Homer Tree Service is named as the contracting party, the contract's plain language nevertheless envisions Armour serving all of the Homer Companies. To that end, Homer Tree Care and Homer Industries paid her directly through January 2015. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 38. Defendants make much of the fact that, starting in January 2015, Homer Management was created and began paying Armour's salary. Id. ¶¶ 4, 35. But Defendants describe Homer Management as having been created for the purpose of supporting and managing the other companies. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶¶ 6, 55. Thus, a reasonable jury could conclude that, notwithstanding the creation of Homer Management, Armour remained an employee at the service of the Homer Companies, including Homer Tree Care and Homer Industries. Further evidence of this fact is that Armour continued to receive payments from Homer Tree Care and Homer Industries after her position moved under Homer Management.
In sum, there is evidence from which a reasonable jury could find that Homer Tree Care and Homer Industries exercised control over and supervised Plaintiff's employment, sought to employ her as their CEO, and either paid her or were responsible for reimbursing her for work-related expenses. Based on these factors, a reasonable jury could conclude that Homer Tree Care and Homer Industries were her joint employers. Defendants' motion for summary judgment on their behalf is therefore denied.
Next, Defendants make various challenges to Armour's prima facie case of retaliation under § 1981, beginning with the contention that she never engaged in protected activity. To demonstrate that she engaged in protected activity, Armour must show that she "took some step in opposition to a form of discrimination that [§ 1981] prohibits." See O'Leary v. Accretive Health, Inc., 657 F.3d 625, 631 (7th Cir. 2011). Her opposition must have been "based on a good-faith and reasonable belief that [she was] opposing unlawful conduct." Id.
According to Armour, Reposh on various occasions stated that he did not want African-Americans working for the Homer Companies because of their race, and Armour "repeatedly advised" him that such a hiring practice was unlawful. Pls.' LR 56.1(b)(3)(C) Stmt. ¶¶ 10, 12. Defendants contend that her complaints did not constitute protected activity because there is no evidence of any specific African-American applicant whose application was rejected. Defs.' Mem. (Armour) at 7; Defs.' Reply (Armour) at 5. Plaintiffs, however, testified otherwise, and the parties dispute whether the Homer Companies rejected qualified African-American applicants during Armour's employment. See Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶¶ 45, 47. Even putting aside this dispute, a reasonable jury could find that Armour had a reasonable, good-faith basis for believing such, given that, at least according to her, Reposh told her that he did not want African-Americans working at the Homer Companies because of their race, and, at the February 2015 meeting, specifically refused to consider African-American applicants. Thus, a reasonable jury could conclude from this record that Armour engaged in protected activity.
Defendants further argue that, even if Armour's complaints to Reposh constituted protected activity, there is no evidence from which a reasonable jury could conclude that she was terminated because of those complaints.
In addition, the events immediately leading up to Armour's termination provide further evidence from which a reasonable jury could conclude that her protected activity caused her termination. On August 17, 2015, Hocking hired Moore, the only African-American offered employment at the Homer Companies during Armour's employment that Defendants have identified by name. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 43; Defs.' Resp. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 18; Defs.' LR 56.1(a)(3) Stmts. J.A., Ex. BB, at 11. One day later, on August 18, 2015, Reposh instructed Armour to fire Castro. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 47. And three days later, on August 21, 2015, Reposh fired Armour. Id. ¶ 77. If, as Armour claims, Reposh had instituted a company-wide policy of not hiring African-Americans and threatened Armour and Castro with termination when they complained about it, a reasonable jury could conclude that he would have been displeased about Moore's hiring and manifest this displeasure through firing Armour. Moreover, a jury might make much of the fact that, a day after Moore's hiring, Reposh instructed Armour to hire Castro, having threatened both of them with termination based on the same protected activity. And, mere days later, Reposh fired Armour. Drawing all reasonable inferences in Plaintiffs' favor, a reasonable jury might conclude that Reposh elected to terminate Plaintiffs within days of each other because they had opposed his allegedly discriminatory hiring practices together. In sum, this sequence of events could lead a reasonable jury to infer that Reposh acted with a retaliatory motive. Granted, as Defendants point out, Armour did not hire Moore, and there is no evidence that Reposh took retaliatory action against Hocking, who hired him. Defs.' Reply (Armour) at 10-11 & nn. 9-10. But while these facts may certainly weaken an inference of retaliatory motive, they do not eliminate it.
Defendants, of course, maintain that Reposh had various legitimate business reasons for terminating Armour. Defs.' Mem. (Armour) at 13-14; Defs.' Reply (Armour) at 6-10. Specifically, Defendants claim that her termination resulted from various breaches of her employment agreement and a decrease in employee morale during her time as CEO. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶¶ 71-72. But, while Armour admits that there were some issues with company morale and that employees had complained to Reposh about her management, Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶¶ 64, 66, she testified at her deposition that the other stated bases for her termination did not occur, or were actions Reposh authorized or acknowledged without discipline, id. ¶¶ 71-72.
Ultimately, a jury must decide what in fact occurred and why Reposh fired Armour. At this stage, however, construing every reasonable inference in her favor, a reasonable jury could conclude that she was fired because of her complaints to Reposh about his racially discriminatory hiring practices.
Defendants also maintain that, even if a reasonable jury could conclude that Armour has proven the elements of a § 1981 retaliation claim, her claim should nevertheless be foreclosed by the so-called "manager rule." Under this rule, "a management employee that, in the course of her normal job performance, disagrees with or opposes the actions of an employer does not engage in protected activity" for purposes of a Title VII retaliation claim. Brush v. Sears Holdings Corp., 466 F. App'x 781, 787 (11th Cir. 2012) (internal quotation marks omitted). While acknowledging that the Seventh Circuit has not adopted, let alone addressed, the viability of the manager rule, Defendants nevertheless urge the Court to apply it in this case. Defs.' Mem. (Armour) at 9-10; Defs.' Reply (Armour) at 4-5.
The manager rule originated from certain circuits' interpretation of the anti-retaliation provision of the Fair Labor Standards Act (FLSA), which proscribes "discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." 29 U.S.C. § 215(a)(3). In interpreting this language, several circuits have arrived at the conclusion that the FLSA's anti-retaliation provision does not reach "activities which are neither adverse to the company nor supportive of adverse rights under the statute which are asserted against the company." McKenzie v. Renberg's Inc., 94 F.3d 1478, 1486-87 (10th Cir. 1996); accord Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 627-30 (5th Cir. 2008); Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102-03 (1st Cir. 2004). Thus, under the manager rule in these circuits, an employee must "cross[ ] the line from being an employee merely performing her job . . . to an employee lodging a personal complaint about [ ] wage and hour practices of her employer and assert[ ] a right adverse to the company" in order to prevail on an FLSA retaliation claim. McKenzie, 94 F.3d at 1486 (emphasis omitted). In support of the rule, the Fifth Circuit has explained that, without it, "nearly every activity in the normal course of a manager's job would potentially be protected activity under [§] 215(a)(3)" and "[a]n otherwise typical at-will employment relationship could quickly degrade into a litigation minefield, with whole groups of employees . . . being difficult to discharge without fear of a lawsuit." Hagan, 529 F.3d at 628.
Two circuits have signaled support for the manager rule in the Title VII context, as well. Weeks v. Kansas, 503 F. App'x 640, 642-43 (10th Cir. 2012); Brush, 466 F. App'x at 787. Three other circuits, however, as well as the only lower court in this circuit to have considered the issue, have declined to extend the rule. DeMasters v. Carilion Clinic, 796 F.3d 409, 424 (4th Cir. 2015); Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015); Chapman v. Milwaukee Cty., 151 F.Supp.3d 892, 900 (E.D. Wis. 2015); see Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000) ("[T]he fact that Plaintiff may have had a contractual duty to voice [discrimination] concerns is of no consequence to his claim."). These courts have provided persuasive reasons for declining to apply the manager rule in the Title VII context, and the Court concludes that these reasons apply with equal force to a § 1981 retaliation claim.
First, while the FLSA narrowly defines the formal conduct that it protects, rprotected activity under Title VII (and, by extension, § 1981) is not so constrained. DeMasters, 796 F.3d at 422. Under the FLSA, protected activity is limited to those instances where an individual has "filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." 29 U.S.C. § 215(a)(3). By contrast, Title VII protects "any. . . employees" who "oppos[e] any practice" made unlawful under the statute, "or [who have] made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under the statute. 42 U.S.C. § 2000e-3 (emphasis added). The Supreme Court has therefore interpreted Title VII to provide "broad protection from retaliation." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Thus, whereas the FLSA protects only a narrow set of formal actions that an employee would seem to take only outside of his or her prescribed duties, Title VII contains no such limits, explicitly protecting any action of opposition, and specifically distinguishing the more formal actions listed in the FLSA's anti-retaliation provision. Here, of course, Armour's complaint arises under § 1981. But, as noted above, claims under Title VII and § 1981 are treated under the same framework, Baines, 863 F.3d at 661, and Defendants have offered no argument for why § 1981 claims should be treated differently.
Because there is no basis for the manager rule in Title VII's text, its proponents have resorted to a policy concern: namely, that permitting human resources personnel or other such employees to file retaliation claims might open employers to suit any time they terminate such an employee. See Hagan, 529 F.3d at 628. But the manager rule solves this problem by creating an arguably larger one. As the Fourth Circuit has aptly explained: "under [the manager rule], the categories of employees best able to assist employees with discrimination claims— the personnel that make up [employee assistance programs], [human resources], and legal departments—would receive no protection from Title VII if they oppose discrimination targeted at the employees they are duty-bound to protect." DeMasters, 796 F.3d at 423. In any case, surely the exceedingly broad language in Title VII that protects "any" employees who oppose "any practice" made unlawful by the statute evinces Congress's intent to favor broad protections at the risk of increased litigation, and it, rather than the judiciary, is better suited to revisit this policy calculus if necessary. See Chapman, 151 F. Supp. 3d at 900.
If this were not enough, the manager rule, at least as posited in the FLSA context, would be inordinately difficult to apply in practice in cases involving claims under Title VII and § 1981, which protect a much wider array of employee conduct. Under the Tenth Circuit's articulation of the rule, a court must discern when an employee has "crossed the line from being an employee merely performing her job. . . to an employee lodging a personal complaint." McKenzie, 94 F.3d at 1486. It is not hard to imagine instances in which this line will be difficult to draw. This case is no exception. If a CEO of a company goes to the company president and says, "I have serious reservations about our discriminatory hiring practices," as Armour claims to have done here, see Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 12, is the CEO merely performing her job, or lodging a personal complaint? Courts would struggle to answer such a question, and whatever the merits of the manager rule in the FLSA context, the importation of such a rule whole-cloth to Title VII and § 1981 retaliation claims would raise significant adjudicatory concerns.
For all of these reasons, the Court declines to apply the manager rule to Armour's retaliation claim.
As their last stand against Armour's retaliation claim, Defendants argue that, assuming she can prove liability arguendo, her damages should nevertheless be substantially reduced under the after-acquired evidence doctrine. Under the after-acquired evidence doctrine, "[a]n employer may be found liable for employment discrimination, but if the employer later—typically in discovery—turns up evidence of employee wrongdoing which would have led to the employee's discharge, then the employee's right to back pay is limited to the period before the discovery of this after-acquired evidence." Sheehan v. Donlen Corp., 173 F.3d 1039, 1047 (7th Cir. 1999) (citing McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 361-62 (1995)). To make out an after-acquired evidence defense, the defendant must show, "by a preponderance of the evidence[,] that the after-acquired evidence would have led to [plaintiff's] termination." Id. at 1047-48.
Here, Defendants maintain that Armour misrepresented that she had obtained a bachelor's degree in her employment application, a fact they did not learn until discovery, and which would have resulted in her immediate termination. Defs.' Mem. (Armour) at 14; Defs.' Reply (Armour) at 12 n.11. But a genuine dispute of material fact precludes a ruling in favor of Defendants' after-acquired evidence at this stage. Armour testified that she informed Reposh that she did not have a bachelor's degree prior to her hiring, and claims that he told her to apply anyway and indicate that she did have a degree on her resume. See Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶¶ 90, 92; Armour Dep. (8/26/16) at 127:8-23. Thus, according to Armour, this evidence was not newly discovered, but was known to Reposh at the inception of her employment. This dispute of fact precludes a finding that Defendants are entitled to a reduction in possible damages as a matter of law. Defendants' motion for summary judgment on this basis is therefore denied.
Defendants also move for summary judgment on Count II of Plaintiffs' amended complaint, in which Armour alleges a number of violations of § 20 of the IWA. Under § 20 of the IWA, "[a]n employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule, or regulation." 740 Ill. Comp. Stat. 174/20. A claim under § 20 comprises two elements: (1) that plaintiff "refused to participate in an activity that would result in a violation of a state or federal law, rule, or regulation," and (2) that plaintiff's employer "retaliated against [plaintiff] because of that refusal." Sardiga v. N. Tr. Co., 948 N.E.2d 652, 657 (Ill. App. Ct. 2011). Importantly, to prevail on a § 20 claim, "the plaintiff must actually refuse to participate . . . `refusing' means refusing; it does not mean `complaining' or `questioning.'" Id.; see also Robinson v. Alter Barge Line, Inc., 513 F.3d 668, 670 (7th Cir. 2008) (affirming grant of summary judgment against IWA § 20 plaintiff where there was "no evidence that the plaintiff refused to engage in" unlawful activity). It is the Plaintiff's burden to demonstrate a refusal and that the activity at issue would have violated a law, rule, or regulation. Corah v. Bruss Co., 77 N.E.3d 1038, 1043 (Ill. App. Ct. 2017) ("Plaintiff bears the burden of establishing [her] claim under the [IWA].").
In Count II of Plaintiffs' amended complaint, Armour alleges that she refused to participate in Reposh's policy of refusing to hire African-Americans, which she claims would violate § 1981, Title VII, and the IHRA. Am. Compl., Count II, ¶ 3, ECF No. 41. In addition, she asserts that she "refused to follow or participate in other directives by Reposh . . . including, but not limited to"
Id., Count II, ¶ 4. Defendants contend that Armour cannot make out an IWA § 20 claim with respect to any of these purported directives. The Court will address each in turn.
Defendants first argue that Armour cannot maintain her IWA § 20 claim on the basis of refusing to participate in Reposh's practice of refusing to hire African-Americans. They contend, in pertinent part, that "[Armour] could only have `refused to participate' by engaging in the conduct she was supposedly prohibited from doing," but that there is no evidence that she hired or even interviewed any African-American job applicants. Defs.' Mem. (Armour) at 17; Defs.' Reply (Armour) at 13-14. Armour, for her part, maintains that she told Reposh that she "could not follow his illegal directives," Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 12, but concedes that she never interviewed an African-American job applicant during her employment, Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶ 47. She further concedes that Castro is the only applicant for any position she ever interviewed. Id. The record, therefore, at most demonstrates that Armour complained to Reposh about his practice and told him that she could not follow it, not that she actually refused to participate in it by interviewing, hiring, or otherwise considering an African-American applicant.
Second, Defendants contend that Armour cannot sustain her IWA § 20 claim with respect to refusing to retaliate against employees who invoked their rights under the Illinois Workers' Compensation Act (IWCA).
820 Ill. Comp. Stat. 305/4(h).
In their opening brief, Defendants further maintain that there is no evidence that her refusal caused her termination. Defs.' Mem. (Armour) at 20.
Third, Defendants assert that Armour cannot proceed with her IWA § 20 claim as it relates to refusing to retaliate against employees who invoked their rights under OSHA.
29 U.S.C. § 660(c)(1). Accompanying regulations clarify that complaints include those made directly to employers "if made in good faith." 29 C.F.R. § 1977.9(c). Thus, if a jury elects to credit Armour's testimony about Lovas's complaint and Reposh's instruction, it could reasonably conclude that she refused to participate in conduct that would violate OSHA. Defendants dispute whether Lovas ever even made the complaint at issue. Resp. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 60. It is for a jury, however, to decide whose version to believe. Defendants also point out that the shop at issue is not a defendant in this action, and that no OSHA violations or citations were issued. Defs.' Reply (Armour) at 15-16; Defs.' Resp. Pls.' LR 56.1(b)(3)(C) Stmt. ¶¶ 60-61. But it is irrelevant that the shop is not a defendant, because Reposh—in his capacity as president of the Homer Companies—gave the directive at issue. It would be another matter if Armour did not have the power to carry out the directive, but Defendants do not argue that she did not. And, because OSHA protects good-faith complaints, it is also irrelevant that no OSHA violations or citations resulted. To that end, Defendants' assertion that an inspection revealed that further testing would be needed on the ventilation system at issue suggests a good-faith basis for Lovas's complaint indeed existed.
This leaves the matter of whether a reasonable jury could conclude that Reposh terminated Armour because she refused to fire Lovas. As noted previously, evidence of suspicious timing alone is rarely enough to survive summary judgment. E.g., Sklyarsky v. Means-Knaus Partners, L.P., 777 F.3d 892, 898 (7th Cir. 2015). Here, however, a reasonable jury could infer causation because Reposh terminated Armour so closely on the heels of her refusal to terminate Lovas four days earlier. See, e.g., Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). For these reasons, Defendants' motion for summary judgment on this aspect of Armour's IWA § 20 claim is denied.
Finally, Defendants argue that Armour cannot move forward with the portion of her IWA § 20 claim based on refusing to participate in sundry violations of the FLSA "and/or Illinois labor laws," rules requiring certain construction permits or licenses, and "other federal and/or Illinois laws, rules[,] or regulations, including tax laws, rules[,] and regulations." Here as well, they argue that there is insufficient evidence in the record that Armour refused to engage in conduct that would violate the FLSA. Defs.' Mem. (Armour) at 16.
Beginning with the FLSA, even assuming that there is admissible evidence in the record that Armour refused to participate in conduct she believes violated the statute, Pls.' LR 56.1(b)(3)(B) Stmt. ¶¶ 48, 54; Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶¶ 101, 105, 107, Armour nevertheless fails to provide any analysis as to why any of these directives would violate the FLSA (or some other unspecified Illinois labor law). The FLSA is a complex statute, and its application depends upon various circumstances. But Armour has not cited a single provision of the FLSA, let alone explained why such a provision would bar the various activities at issue. As just one example, while the FLSA details various exemptions from its overtime pay requirements, 29 U.S.C. § 213(a), Armour has provided no evidence from which the Court can discern whether Reposh instructed Armour to deem certain employees exempt who should not be. The same analysis is lacking for each of Reposh's purported directives. It is Armour's burden to create a triable issue of fact that the FLSA would have been violated if she had done as Reposh requested, see Corah, 77 N.E.3d at 1043, and she has not satisfied her burden, see Reed, 2016 WL 1019830, at *4; see also Ulm, 964 N.E.2d at 641.
The same is true with respect to her claim predicated on refusing to participate in conducting "certain construction and related activities . . . without first obtaining legally required permits or licenses," specifically with regard to the installation of certain above-ground fuel tanks. See Am. Compl., Count II, ¶ 4(c). Armour again fails to cite any particular law, rule, or regulation that she claims would have been violated, nor has she provided any explanation as to how such a law, rule, or regulation would have been violated. For the same reason, insofar as Armour's claim is based on refusing to participate in "[o]ther directives by Reposh that . . . would violate other federal and/or Illinois laws, rules[,] or regulations, including tax laws, rules[,] and regulations," see id., Count II, ¶ 4(e), Armour cannot discharge her burden of proving that a law, rule, or regulation would have been violated simply by testifying such a violation occurred. This is especially so when the Court has no way of determining what laws, rules, or regulations Armour means to refer to in the first place.
No reasonable jury, therefore, could rule in her favor on these aspects of her IWA § 20 claim. Defendants' motion for summary judgment in this respect is granted.
Defendant Homer Tree Service also seeks summary judgment on Count III of Plaintiffs' amended complaint, Armour's breach of contract claim. Armour's employment contract with Homer Tree Service stated, in pertinent part, that "[t]his Agreement may be terminated by either party before the end of the term with or without cause, by giving thirty (30) days written notice. If [Homer Tree Service] terminates [Armour] without cause, it shall pay [her] the equivalent of four (4) months of her current salary." Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 14; Armour Dep. (8/26/16), Ex. 4, at 4-5. Armour alleges that Homer Tree Service breached her employment contract in two ways: first, by failing to give her thirty days' notice of her termination, and second, by failing to pay her four months of her current salary despite terminating her without cause. Pls.' Resp. at 41; Am. Compl., Count III, ¶¶ 4-6. With regard to the first ground for breach, Homer Tree Service argues that Plaintiff has not adduced evidence of damages. Defs.' Reply (Armour) at 18 n.19. This argument, however, is plainly mistaken: Armour offers evidence that Homer Tree Service "failed . . . [to] pay Armour her contractually mandated termination pay in lieu of 30 days['] notice," and that she suffered damages that include "lost income." Pls.' Resp. at 41; see Defs.' LR 56.1(a)(3) Stmts. J.A., Ex. MM, at 7. Homer Tree Service has presented no reason that Armour cannot recover the income she would have received during the period of thirty days' notice.
As for the second ground, a genuine issue of fact remains as to whether Armour was terminated "for cause." For the reasons explained above, a reasonable jury could conclude that Armour was terminated because of her complaints about Reposh's purported discriminatory hiring practices. In such a case, her termination would be without cause. Alternatively, a reasonable jury could conclude that she was terminated based on some or all of the grounds that Reposh and the Homer Companies have asserted. Because a factual dispute remains as to whether cause for her termination existed, summary judgment is inappropriate. Rosenberger v. United Cmty. Bancshares, Inc., 73 N.E.3d 642, 653 (Ill. App. Ct. 2017) (citing Mitchell v. Jewel Food Stores, 568 N.E.2d 827, 832 (1990)) (explaining that "whether an employee engaged in misconduct [justifying termination] is a question for the trier of fact to resolve"). Homer Tree Service's motion for summary judgment on Armour's breach of contract claim is therefore denied.
Next, the Defendants move for summary judgment on Armour's assault and battery claims as against the Homer Companies, Count V of Plaintiffs' Amended Complaint. The Court permitted these claims to proceed at the motion to dismiss stage, holding that the claims were not preempted by the Illinois Human Rights Act (IHRA), and that insofar as Armour sought to hold the Homer Companies liable for Reposh's conduct on the basis of an alter ego theory, her pleadings were sufficient. Armour v. Homer Tree Servs., Inc., No. 15 C 10305, 2016 WL 3014819, at *3 (N.D. Ill. May 26, 2016). Defendants now renew their effort to dismiss the claims, focusing on the IWCA. They argue that discovery has produced no evidence that would support liability under an alter ego theory.
The IWCA "bar[s] an employee from bringing a common law cause of action against his or her employer unless the employee-plaintiff proves: (1) that the injury was not accidental; (2) that the injury did not arise from his or her employment; (3) that the injury was not received during the course of employment; or (4) that the injury was not compensable under the Act." Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222, 1226 (Ill. 1990) (citing 820 Ill. Comp. Stat. 305/5, 305/11). The word "accidental" is not interpreted technically and includes intentional torts. Id. Thus, "injuries inflicted intentionally upon an employee by a co-employee are `accidental' within the meaning of the [IWCA], since such injuries are unexpected and unforeseeable from the injured employee's point of view." Id. Nevertheless, as the Court noted in its order on Defendants' motion to dismiss, the IWCA "does not bar intentional torts against the employer `for injuries which the employer or its alter ego intentionally inflicts upon an employee.'" Armour, 2016 WL 3014819, at *3 (quoting Meerbrey, 564 N.E.2d at 1226).
To hold that an individual is an alter ego of a corporation—also referred to as piercing the corporate veil—the party asserting liability must demonstrate that there is "such unity of interest and ownership that the separate personalities of the corporation and the individual [or other corporation] no longer exist; and . . . that adherence to the fiction of separate corporate existence would sanction a fraud or promote injustice." Van Dorn Co. v. Future Chem. & Oil Corp., 753 F.2d 565, 569-70 (7th Cir. 1985) (citations omitted) (applying Illinois law). Courts typically consider whether some or all of the following circumstances are present: "(1) the failure to maintain adequate corporate records or to comply with corporate formalities, (2) the commingling of funds or assets, (3) undercapitalization, and (4) one corporation treating the assets of another corporation as its own." Id. at 570 (citations omitted) (applying Illinois law).
Here, Armour points to no evidence that Reposh and the Homer Companies have such unity of interest that they should not be treated as separate entities, or that treating them as distinct legal entities would sanction a fraud or promote injustice. In her response brief, she summarily states that "at best, it will be for the jury to decide if [the Homer Companies] are liable for Reposh's misconduct as his alter ego." Pls.' Resp. at 40 (internal quotation marks omitted). But Armour provides no grounds on which a reasonable jury could make such a determination. In response to one of Defendants' statements of facts, Armour asserts that "Reposh owns and controls the Homer Companies, and as such is their alter ego." Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶ 131 (internal quotation marks omitted); see id. ¶ 73. But mere ownership and control of a corporation, without more, is insufficient for alter ego liability.
Because there is no evidence that would support Armour's alter ego theory, and she offers no other argument in support of her claims, the Court finds that her assault and battery claims against the Homer Companies are preempted by the IWCA. Accordingly, Defendants' motion for summary judgment as to Armour's claims of assault and battery against the Homer Companies is granted.
In addition to seeking summary judgment on Armour's claims, Defendants also move for summary judgment on three of Homer Tree Service's and Homer Management's counterclaims: breach of fiduciary duty (Count II of both parties' counterclaims), unjust enrichment (Count V of Homer Tree Service's counterclaims, Count III of Homer Management's), and conversion (Count VI of Homer Tree Service's counterclaims, Count IV of Homer Management's).
Beginning with the breach of fiduciary duty claims, Defendants contend that Armour:
Defs.' Mem. (Armour) at 27. A genuine dispute of material fact, however, exists as to most of these purported breaches. Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶ 18 (disputing whether Castro had prior experience in human resources); id. ¶ 72 (claiming authorization to purchase the fuel management system)
There are two exceptions. First, Armour admits that she manipulated an email sent to Reposh to make it appear as if it was sent to her. Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶ 84; see Armour Dep. (8/26/16) at 225:16-22. But Defendants fail to indicate in their briefing how this conduct amounts to a breach of fiduciary duty. A breach of fiduciary duty occurs where a fiduciary "solicit[s] his employer's customers for himself, entice[s] coworkers away from his employer, or appropriate[s] his employer's personal property." ABC Trans Nat. Transp., Inc. v. Aeronautics Forwarders, Inc., 379 N.E.2d 1228, 1237 (Ill. App. Ct. 1978). A corporate fiduciary breaches its duty "if it uses corporate assets to further its own goals or enhances its own personal interests at the expense of the corporate interests." Tully v. McLean, 948 N.E.2d 714, 739 (Ill. App. Ct. 2011). To that end, Defendants cite a number of cases that involve fiduciaries misusing company assets for their own personal gain. Defs.' Mem. (Armour) at 28. But there is no indication that Armour's manipulation of the email in question had this effect. Thus, summary judgment with relation to this conduct is not warranted.
Second, Armour admits that she ordered a background check on a non-employee through a third-party vendor at no charge, Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶ 82; see Armour Dep. (8/26/16) at 216:4-15, and that she ordered surveillance on certain employees, Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶ 82. Again, Defendants fail to demonstrate that this conduct was a breach of fiduciary duty. For these reasons, Defendants' motion for summary judgment on their breach of fiduciary counterclaims is denied.
Homer Tree Service's and Homer Management's unjust enrichment and conversion counterclaims are similarly predicated on their position that Armour was not authorized to use company funds to cover tuition for bachelor's degree courses. But, as noted above, Armour genuinely disputes this position on the ground that she reached an oral agreement with Reposh that she could use company funds for this purpose. Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶¶ 71-72; see id. ¶¶ 78-81. Accordingly, summary judgment on these counterclaims is denied as well.
In Count VI of Plaintiffs' amended complaint, Castro similarly alleges that she was terminated in retaliation for her complaints to Reposh about his policy of refusing to consider African-American candidates for employment because of their race. Defendants raise a number of challenges to her claim, several of which are unavailing for reasons explained in connection with Armour's claim that need not be repeated here.
First, Defendants move for summary judgment on Castro's claim as against Homer Tree Service, contending Homer Tree Service was not her employer. Defs.' Mem. (Castro) at 3 n.1; Defs.' Reply (Castro) at 4-5. Castro, however, makes no argument in her response brief that Homer Tree Service was her employer.
With respect to the remaining Defendants against which Castro seeks relief (Homer Management and Reposh), Defendants also contend that, like Armour, Castro has presented insufficient evidence from which a reasonable jury could conclude that her protected activity was the cause of her termination.
And, while Defendants also point to legitimate, non-discriminatory reasons for Castro's firing, a reasonable jury could conclude that these reasons were pretextual.
Granted, Castro admits that she was aware that Reposh felt she was not qualified for her job prior to her termination, Pl. Castro's LR 56.1(b)(3)(B) Stmt. ¶ 71, and does not contest the number of days' leave she is alleged to have taken, id. But, even if a jury were to conclude that both stated reasons for Castro's termination had a basis in fact, it might nevertheless question their sincerity based on the timing of Castro's firing in connection with these rationales. Defendants have offered no explanation for why Reposh did not demand Castro's termination at a much earlier date, despite the stated bases for her termination existing well before August 18, 2015. According to Defendants, Armour complained about Castro's performance "[s]everal times during Castro's employment and approximately a month prior to" Castro's termination. Defs.' LR 56.1(a)(3) Stmt. (Castro) ¶ 74. Additionally, Reposh requested documentation of Castro's absences on August 17, 2015—one day prior to her termination—despite Castro purportedly exceeding her leave balance on March 5, 2017. Id. ¶ 73; see Castro Dep., Ex. 13. A reasonable jury might infer that Reposh summoned these rationales as a means of masking his intention to terminate Castro based on her protected activity, angered by Moore's hiring on August 17, the day before Castro was fired. Thus, a reasonable jury could conclude that Reposh instructed that Castro be fired because of her protected activity.
For all these reasons, Defendants' motion for summary judgment is granted with respect to Castro's § 1981 retaliation claim as against Homer Tree Service,
Defendants also move for summary judgment on Count VII of Plaintiffs' amended complaint, in which Castro alleges that she was terminated for refusing to participate in activities that would have violated various laws, rules, and regulations, as prohibited by § 20 of the IWA. Specifically, Castro claims that she refused to participate in Reposh's policy of refusing to hire African-Americans, which she claims would violate § 1981, Title VII, and the IHRA. Am. Compl., Count VII, ¶ 3. In addition, she asserts that she "refused to follow or participate in other directives from Reposh . . . including, but not limited to"
Id., Count VII, ¶ 4. Defendants contend that Castro cannot prove her IWA § 20 claim as to any of these purported directives.
Defendants first argue that Castro cannot sustain her IWA § 20 claim on the basis of refusing to participate in Reposh's practice of refusing to hire African-Americans. They contend, in pertinent part, that "[g]iven employment decisions were outside the scope of her employment, [Castro] could not have refused to participate in activity for which she was not authorized to partake." Defs.' Mem. (Castro) at 16; Defs.' Reply (Castro) at 16-17. Castro, like Armour, claims that she told Reposh that she "could not follow his illegal directives." Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 12. But, again like Armour, Castro cannot demonstrate that she refused to participate in Reposh's practice. Castro admits that she did not have the authority to make hiring decisions. Pl. Castro's LR 56.1(b)(3)(B) Stmt. ¶¶ 31, 56. She further admits that she cannot identify any specific African-American applicant who applied for a position but was not hired by any of the Homer Companies. Id. ¶ 32. The closest Castro comes to evidence of refusal is her conduct at the February 2015 meeting at which she presented Reposh with applicants that she claims he rejected because they were African-American, notwithstanding her admonishment that he should consider them. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 14; Castro Dep. at 49:9-53:24. But there is no evidence that she then proceeded to consider or interview any of these applicants.
Next, Defendants contend that Castro cannot proceed with her IWA § 20 claim with respect to refusing to retaliate against employees who invoked their rights under the IWCA.
Defendants also contend that Castro cannot proceed with her IWA § 20 claim to the extent it is premised on refusing to participate in violations of the FLSA "and/or Illinois labor laws," or on "[o]ther directives by Reposh that . . . would violate other federal or state laws, rules[,] or regulations." See Am. Compl., Count VII, ¶¶ 4(b), 4(c). Here, just as with Armour's claim, Castro's say-so is not enough. She has not cited a single provision of the FLSA or other law, rule, or regulation or explained why engaging in Reposh's directives would have violated it. She therefore has not satisfied her burden of demonstrating that a violation of the FLSA would have occurred. Corah, 77 N.E.3d at 1043; see Reed, 2016 WL 1019830, at *4; see also Ulm v. Mem'l Med. Ctr., 964 N.E.2d at 641. Defendants' motion for summary judgment as to this portion of Castro's IWA § 20 claim is therefore granted.
For the foregoing reasons, Defendants' motions for partial summary judgment as to Armour [146] and summary judgment as to Castro [149] are granted in part and denied in part. Defendants' motion as to Armour is granted as to Armour's IWA claims, except those based on the IWCA and OSHA (Count II), granted as to her assault and battery claims as against the Homer Companies (Count V), and denied in all other respects. Defendants' motion as to Castro is granted as to her claims against Homer Tree Service (Counts VI and VII); granted as to Castro's IWA claims, except as based on the IWCA, as against Homer Management and Reposh (Count VII), and denied in all other respects. The parties shall be prepared to set dates for pre-trial motions, the final pretrial conference, and trial at the next status hearing, which is set for 11/7/17 at 9:00 a.m.
