Robert Hillmann v. City of Chicago , 834 F.3d 787 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3438 & 14-3494
ROBERT P. HILLMANN,
Plaintiff-Appellee/
Cross-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellant/
Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 C 6671 — Rubén Castillo, Chief Judge.
____________________
ARGUED SEPTEMBER 17, 2015 — DECIDED AUGUST 23, 2016
____________________
Before FLAUM, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. For nearly three decades, Robert
Hillmann worked for the City of Chicago in its Department
of Streets and Sanitation. In July 2002 the City eliminated his
position in a citywide reduction in force (“RIF”). Two years
2 Nos. 14-3438 & 14-3494
later he sued the City alleging that he was targeted for
inclusion in the RIF because he asserted his rights under the
Illinois Workers’ Compensation Act (“IWCA”), 820 ILL.
COMP. STAT. 305/1 et seq., and the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12101 et seq.
This long-running case twice proceeded to trial. In the
first trial, a jury found for the City on the IWCA retaliatory-
discharge claim. For reasons not entirely clear to us, the
ADA claim was tried to the court at the same time. But the
judge died before issuing a decision, and a successor judge
ordered a new trial on both claims based on an evidentiary
error. The second trial yielded a split result. The jury found
in Hillmann’s favor on the IWCA claim and returned a
seven-figure damages verdict. The judge found for the City
on the ADA claim.
Both sides appealed. The City contends that the judge’s
new-trial order was improper and asks us to reinstate the
first jury’s verdict. Alternatively, the City argues that the
IWCA claim fails as a matter of law because Hillmann
produced no evidence of causation. As a fallback argument,
the City seeks a new trial limited to damages. Hillmann’s
cross-appeal asks us to reverse the judge’s bench decision
rejecting his ADA claim.
We decline the City’s invitation to second-guess the suc-
cessor 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
Nos. 14-3438 & 14-3494 3
under the IWCA, Hillmann needed to prove causation. At a
minimum this required proof that the relevant decision-
maker knew about his workers’ compensation claim. But no
evidence suggests that the RIF decision-maker knew about
Hillmann’s claim. The ADA claim likewise fails for lack of
proof of causation. Hillmann has no evidence that the City
withheld merit raises or targeted him for the RIF based on
his request for an ADA accommodation. The City is entitled
to judgment across the board.
I. Background
Hillmann began working for the City of Chicago’s Parks
District in 1973. About five years later he moved to a job as a
truck driver in the City’s Department of Streets and Sanita-
tion. In 1984 he developed cervical radiculopathy, a work-
related injury that caused pain, weakness, limited mobility,
and loss of sensation in his right arm. In 1995 he entered into
an accommodation agreement with the City that allowed
him to avoid repetitive work with his injured right arm. As
part of this agreement, Hillmann was reassigned to the
position of chief timekeeper in the Bureau of Electricity, a
division of the Streets and Sanitation Department. He never
performed all of the timekeeping duties required by the job
description, but he performed the essential functions and
did other tasks as directed by his supervisor.
Hillmann’s supervisor during this time was Deputy
Commissioner Jim Heffernan. In May 2000 Heffernan was
reassigned to a different post and Bart Vittori was tempo-
rarily 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
4 Nos. 14-3438 & 14-3494
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, Hill-
mann performed the additional tasks Vittori assigned to
him, exacerbating his condition.
On July 1, for the first time in his career, Hillmann did
not receive a merit raise. On August 8 Hillmann finally went
to Vittori and told him that he could not physically perform
the additional duties he was assigned. In response Vittori
reassigned a supervising timekeeper to other responsibilities
and assigned the supervisor’s duties to Hillmann. About ten
days passed before this shift of responsibilities could be
accomplished, however, so Hillmann reported for work but
performed no tasks.
On August 15 Hillmann’s attorney sent a letter to
Barbara Smith in the City’s Corporation Counsel’s office
requesting that Hillmann’s 1995 accommodation agreement
be honored. The next day Smith discussed the matter with
Catharine Hennessey, the Department’s labor-relations
liaison. In response Hennessey instructed Donlan to write a
new job description for Hillmann. The first paragraph of the
description covered the duties Hillmann had performed as
chief timekeeper; the second paragraph covered the reas-
signed 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 descrip-
tion included tasks that he could not physically perform.
On August 16 Brian Murphy replaced Heffernan as
Deputy Commissioner. In that role Murphy was responsible
for supervising all Bureau of Electricity employees.
Nos. 14-3438 & 14-3494 5
Murphy’s direct supervisor was John Sullivan, the Manag-
ing Deputy Commissioner of the Department of Streets and
Sanitation.
On August 23 Hennessey instructed Hillmann to report
for a fitness-for-duty medical examination to reassess the
question of his accommodation. During this time, Hillmann
also saw his own physician, who noted that his condition
had worsened. On September 1 Hillmann was transferred to
the Construction Division of the Bureau of Electricity where
he was assigned to answer phones. That same day Hillmann
filed a workers’ compensation claim with the Illinois Indus-
trial Commission. On October 1 another merit raise was
denied. On October 7 he was again transferred within the
Bureau, this time to the Transportation Division, where he
was assigned to answer phones.
Throughout the late summer and fall, Hillmann contin-
ued 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 ac-
knowledging 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 De-
partment of Personnel to determine if your physical re-
strictions will allow you to perform in some other capacity in
another job title.” Hillmann testified that when Donlan gave
him the letter, he advised him not to report to work. Hill-
6 Nos. 14-3438 & 14-3494
mann stopped reporting for work but did not apply for a
leave of absence.
For the next two months, Hillmann underwent further
medical evaluations in connection with his workers’ com-
pensation claim. In January 2001 he was referred to
Dr. Damon Arnold, director of occupational health at Mercy
Works, an agency the City consults with on workers’ com-
pensation matters. On February 26, 2001, Dr. Arnold issued
a “discharge sheet” clearing Hillmann to perform sedentary
work with limited use of his right upper arm—in other
words, a desk job with minor office work. The discharge
sheet was sent to Jack Drumgould, the Department’s Assis-
tant Commissioner in charge of personnel. Drumgould
wrote the following on the discharge sheet: “Cannot ac-
commodate with restrictions” but “CAN accommodate in
Bureau of Traffic Services with restrictions as of 3–02–01.”
Cleared to return to work, Hillmann reported to
Drumgould and was “detailed” to the Bureau of Traffic
Services. A “detail” is just a temporary work assignment;
Hillmann remained an employee of the Bureau of Electricity
with the title of chief timekeeper. When Hillmann showed
up for work in the Bureau of Traffic Services, he was di-
rected to the auto pound where he was verbally assigned
minor, menial duties. In this assignment he racked up a
pattern of tardiness and absenteeism due to sick leave. In the
late spring he applied for and was granted a transfer from
the 8 a.m.-to-3 p.m. shift to the noon-to-8 p.m. shift. He was
denied merit raises in January 2002, March 2002, and May
2002.
In 2002 the City faced a serious budget shortfall necessi-
tating a citywide RIF. Each department was given a target
Nos. 14-3438 & 14-3494 7
for reducing its workforce, and department heads were
directed to identify which positions to include in the RIF and
submit a list to the Office of Budget and Management.
Sullivan was the Department’s main contact for its RIF list,
but Al Sanchez, the Streets and Sanitation Commissioner,
made the final decision about which departmental positions
would be included.
Murphy prepared a preliminary list of positions he
thought could be eliminated from the Bureau of Electricity
without damaging the delivery of services. He included the
chief timekeeper and supervising timekeeper positions
because no one was then performing those functions and the
Department was completing its transition to Kronos, a
computerized payroll system, making these positions obso-
lete. Jack Kenney, the Department’s Deputy Commissioner
of Administration, reviewed Murphy’s preliminary list and
agreed with the recommendation to include the timekeeping
positions in the RIF. Kenney approved the list and sent it up
the chain of command. Sullivan, in turn, reviewed the list
and recommended that Sanchez approve it. Sanchez, the
final authority, reviewed and approved the list and sent it to
the Office of Budget and Management. Sanchez did not
know that Hillmann had filed a workers’ compensation
claim.
On July 1, 2002, Hillmann received a letter from Sanchez
notifying him that he was being placed on administrative
leave until further notice and that his chief timekeeper’s
position would be eliminated effective July 31, 2002, as a
part of the citywide RIF.
8 Nos. 14-3438 & 14-3494
A. The First Trial
In 2004 Hillmann filed suit in state court alleging that the
City violated his rights under the First Amendment, the
ADA, and state law. The City removed the case to federal
court, and Judge William J. Hibbler was assigned to preside.
A long period of discovery and motions litigation followed.
Judge Hibbler eventually allowed two claims to move
forward to trial: (1) Hillmann’s claim that he was discharged
in retaliation for exercising his rights under the IWCA, and
(2) his claim that he was denied merit raises and discharged
because of his request for an ADA accommodation.
During discovery, Sullivan and Drumgould invoked
their Fifth Amendment privilege and refused to testify in
deposition, citing potential criminal exposure in connection
with a political-patronage scandal involving the Department
of Streets and Sanitation. The City moved in limine to pre-
clude their testimony and any reference to their Fifth
Amendment invocation at trial. Judge Hibbler held a hearing
on the motion, with counsel for the two witnesses present to
address the claim of privilege. After hearing from all parties,
Judge Hibbler granted the City’s motion, excused the two
witnesses from testifying, and ruled that the issue could not
be raised in front of the jury.
The City also moved in limine to exclude Hillmann’s
pension-damages expert, arguing that his testimony was
irrelevant because Hillmann was not entitled to pension
damages. In the alternative the City sought to exclude the
expert’s testimony as unreliable and based on improper
calculations. Judge Hibbler granted this motion as well but
offered no reasons.
Nos. 14-3438 & 14-3494 9
The case proceeded to trial in June 2011. The judge sub-
mitted the IWCA retaliatory-discharge claim to the jury,
which returned a verdict for the City. The jury was not
asked to decide the ADA claim (we’re not sure why), so that
part of the case was converted to a court trial and Judge
Hibbler took the matter under advisement. He died before
issuing a decision.
B. The Second Trial
Chief Judge Rubén Castillo assumed responsibility for
the case after Judge Hibbler’s death. Hillmann moved for a
new trial, arguing that it was error to excuse Sullivan and
Drumgould from testifying based on their blanket assertions
of the Fifth Amendment privilege. Chief Judge Castillo
agreed and granted the motion. He also revisited and re-
versed Judge Hibbler’s decision to exclude the testimony of
Hillmann’s pension-damages expert.
The two claims were retried in April 2013. Sullivan and
Drumgould testified, as did Hillmann’s pension-damages
expert. This time the jury returned a verdict for Hillmann on
the IWCA retaliatory-discharge claim and awarded
$2 million in damages. Chief Judge Castillo submitted the
ADA claim to the jury for an advisory verdict; the jury found
for the City on this claim.
Posttrial proceedings followed. The City moved for
judgment as a matter of law or a new trial on the IWCA
retaliatory-discharge claim. On the ADA claim, the City
urged the court to accept the jury’s advisory verdict and
enter findings and conclusions rejecting Hillmann’s claim.
Hillmann moved for judgment in his favor on both claims.
10 Nos. 14-3438 & 14-3494
Chief Judge Castillo split the difference. He denied the
City’s motion for judgment as a matter of law on the IWCA
claim. He did, however, reduce the damages award to
$1.6 million. On the ADA claim, the judge accepted the
jury’s advisory no-liability verdict and entered detailed
findings and conclusions of his own. He denied Hillmann’s
motion for judgment on the ADA claim.
The resulting judgment left something for both sides to
appeal. And they did, raising multiple claims of error.
II. Analysis
A. IWCA Retaliatory-Discharge Claim
The City’s opening salvo is a challenge to Chief Judge
Castillo’s decision to order a new trial. The district court has
the discretion to “grant a new trial on all or some of the
issues—and to any party,” FED. R. CIV. P. 59(a), and a new
trial should be granted if a prejudicial error occurred,
Bankcard Am., Inc. v. Universal Bancard Sys., Inc., 203 F.3d 477,
480 (7th Cir. 2000). We usually review an order granting a
new trial for abuse of discretion, but normally the same
judge presides at trial and also decides the posttrial motion.
McClain v. Owens–Corning Fiberglas Corp., 139 F.3d 1124, 1126
(7th Cir. 1998). Here, Chief Judge Castillo ordered a new trial
after the original trial judge died. His ruling, moreover, was
based on a legal determination concerning the Fifth
Amendment privilege. In these circumstances de novo
review applies. See Bankcard Am., 203 F.3d at 481.
Chief Judge Castillo concluded that a new trial was war-
ranted because Judge Hibbler should not have wholly
excused Sullivan and Drumgould from testifying based on
blanket assertions of their Fifth Amendment privilege
Nos. 14-3438 & 14-3494 11
against self-incrimination. That ruling correctly understands
how the privilege works in this situation; in a civil case, the
jury is permitted to hear evidence of a witness’s invocation
of the privilege and may draw an adverse inference from it.
See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“[T]he Fifth
Amendment does not forbid adverse inferences against
parties to civil actions when they refuse to testify … .”);
Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc.,
No. 15-2526, 2016 WL 4097439, at *14 (Aug. 2, 2016) (“The
Fifth Amendment allows adverse inference instructions
against parties in civil actions.”); Evans v. City of Chicago,
513 F.3d 735, 745 (7th Cir. 2008); Harris v. City of Chicago,
266 F.3d 750, 755 (7th Cir. 2001); United States v. Awerkamp,
497 F.2d 832, 836 (7th Cir. 1974).
The City suggests that the error was harmless and there-
fore not a good reason to order a new trial. As a remedy, the
City asks us to reinstate the verdict of the first jury, which
found in the City’s favor on the IWCA retaliatory-discharge
claim. We don’t need to decide whether the chief judge
correctly construed this legal error as serious enough to
justify a new trial. The undisputed evidence shows that this
claim should not have gone to a jury at all.
A claim for retaliatory-discharge is not authorized by the
IWCA itself. Rather, “[t]he Illinois Supreme Court has
recognized a common-law cause of action for retaliatory
discharge where an employee is terminated because of his
actual or anticipated exercise of workers’ compensation
rights.” Beatty v. Olin Corp., 693 F.3d 750, 753 (7th Cir. 2012).
The cause of action is “a ‘narrow’ and ‘limited’ exception to
the at-will employment doctrine,” and the state high court
12 Nos. 14-3438 & 14-3494
has been “disinclined to expand” it. Id. (quoting Zimmerman
v. Buchheit of Spart, Inc., 645 N.E.2d 877, 881 (Ill. 1994)).
To prevail on his claim that he was fired in retaliation for
exercising his rights under the IWCA, Hillmann had to
prove three elements: (1) he was employed by the City at the
time of his injury; (2) he exercised a right granted by the
IWCA; and (3) his discharge was causally related to the
exercise of his rights under the IWCA. Grabs v. Safeway, Inc.,
917 N.E.2d 122, 126 (Ill. App. Ct. 2009). Hillmann’s case, like
many others, turns on the element of causation. The ultimate
question in the causation inquiry “is the employer’s motive
in discharging the employee.” Clemons v. Mech. Devices Co.,
704 N.E.2d 403, 406 (Ill. 1998). It’s not enough for the plain-
tiff to establish that his workplace injury and initiation of a
workers’ compensation claim set in motion a chain of events
that ended in his discharge. Phillips v. Cont’l Tire The Ameri-
cas, LLC, 743 F.3d 475, 478 (7th Cir. 2014); Casanova v. Am.
Airlines, Inc., 616 F.3d 695, 698 (7th Cir. 2010). That is, but-for
causation is necessary but not sufficient to prove the causa-
tion element of a retaliatory-discharge claim. Phillips,
743 F.3d at 478; Casanova, 616 F.3d at 697.
Accordingly, under Illinois law a claim for retaliatory
discharge requires—at a minimum—that the relevant deci-
sion-maker knew that the employee intended to file or had
filed a workers’ compensation claim. Beatty, 693 F.3d at 753;
Hunt v. Davita, Inc., 680 F.3d 775, 779 (7th Cir. 2012); Hiatt v.
Rockwell Int’l Corp., 26 F.3d 761, 769 n.7 (7th Cir. 1994) (“Evi-
dence that those responsible for an employee’s termination
knew he intended to file, or, as in this case, had filed, a
workers’ compensation claim is essential to a retaliatory
Nos. 14-3438 & 14-3494 13
discharge action under Illinois law.” (citing Marin v. Am.
Meat Packing Co., 562 N.E.2d 282, 286 (Ill. App. Ct. 1990))).
In Hillmann’s case the relevant decision-maker was
Sanchez, who as Commissioner of Streets and Sanitation
made the final decision about which positions within his
department would be eliminated in the RIF. No evidence
suggests that Sanchez knew that Hillmann had filed a
workers’ compensation claim. Hillmann hammers away on
the evidence that Murphy and Hennessey were aware of his
injury and gave him less prestigious and more physically
rigorous assignments that seemed designed to aggravate his
injury rather than to accommodate it. But they were not the
RIF decision-makers. Illinois courts haven’t recognized a
cat’s paw theory of liability in this context, 1 and that theory
is hard to reconcile with the cases holding that the causation
element requires evidence that the relevant decision-maker
knew about the plaintiff’s workers’ compensation claim. In
any event, Hillmann hasn’t litigated his case on a cat’s paw
theory, so we have no reason to consider the question here.
Because Commissioner Sanchez made the final decision
to include the timekeeper positions in the RIF and no evi-
dence suggests that he knew about Hillmann’s workers’
compensation claim, the IWCA retaliatory-discharge claim
fails as a matter of law. It should not have been submitted to
one jury, let alone two. This conclusion makes it unnecessary
for us to consider the City’s more limited argument for a
new trial on the issue of damages.
1One recent opinion of the Illinois Appellate Court considered the cat’s
paw theory of liability but concluded that the facts did not support it. See
Cippola v. Village of Oak Lawn, 26 N.E.3d 432, 444 (Ill. App. Ct. 2015).
14 Nos. 14-3438 & 14-3494
B. The ADA Claim
Hillmann’s cross-appeal seeks review of the judge’s deci-
sion rejecting his ADA claim. We will not disturb findings of
fact made after a bench trial unless they’re clearly erroneous.
FED. R. CIV. P. 52(a). Conclusions of law are reviewed de
novo. Fillmore v. Page, 358 F.3d 496, 503 (7th Cir. 2004).
Hillmann alleged that he was denied merit-pay increases
and targeted for inclusion in the RIF because he requested an
ADA accommodation when his workplace injury worsened
in the summer of 2000. Here again, the sticking point is
causation. To prevail on this claim, Hillmann had to prove
that his request for an accommodation was the but-for cause
of the merit-pay denials and his inclusion in the RIF. See
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528
(2013). “[T]he ADA renders employers liable for employ-
ment decisions made ‘because of’ a person’s disability, …
[which] require[s] a showing of but-for causation.” Serwatka
v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010).
Put differently, Hillmann needed to prove that the City
would not have taken these adverse employment actions
“but for his actual or perceived disability; proof of mixed
motives will not suffice.” Id.
Chief Judge Castillo accepted the jury’s advisory verdict
on this claim but also entered detailed findings and conclu-
sions to support his decision. He first found that Hillmann’s
request for an accommodation did not cause the July 1, 2000
merit-pay denial because Hillmann waited until August 8 to
notify Vittori—his supervisor from May to August 16—that
he could not perform the extra duties Vittori had assigned.
The subsequent merit-pay denials, the judge found, resulted
either from the City’s confusing practice of “detailing”
Nos. 14-3438 & 14-3494 15
employees to other departments or Hillmann’s excessive
tardiness and absenteeism. Finally, the judge found that
there was “no nexus” between Hillmann’s request for an
accommodation and the inclusion of his timekeeper’s posi-
tion in the RIF.
These findings are well supported by the record. The
judge noted that Hillmann produced no evidence from
which to infer that any of the merit-pay denials were retalia-
tory or that the City’s reasons for including his position in
the RIF were pretextual. The RIF was necessitated by a
budget shortfall and entailed 300–400 jobs. Hillmann was
not singled out; all timekeeping positions in the Bureau of
Electricity were included on the RIF list. The evidence
established that no one was performing these functions
anyway, and the implementation of the Kronos computer-
ized payroll system made these positions obsolete. The
judge’s decision easily survives clear-error review.
To sum up, Hillmann lacked evidence to prove the ele-
ment of causation on either claim, so the City was entitled to
judgment as a matter of law on both. Accordingly, we
REVERSE in part and REMAND with instructions to enter
judgment for the City on the IWCA retaliatory-discharge
claim. In all other respects, the judgment is AFFIRMED.