Robert P. Hillmann, Plaintiff-Appellee/ Cross-Appellant,
City of Chicago, Defendant-Appellant/ Cross-Appellee.
September 17, 2015
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 04 C 6671 - Ruben
Castillo, Chief Judge.
Flaum, Manion, and Sykes, Circuit Judges.
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 III.
Comp. Stat. 305/1 et seq., and the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§
12101 et seq.
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.
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.
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 decisionmaker 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
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 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.
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.
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.
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.
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
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