Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—N.D. Ill.: Employee, fired after husband’s cancer diagnosis, advances associational bias claim, (Apr 1, 2025)

By Todd Harrison, J.D.

Although she was allegedly fired for failing to meet her performance goals, the database reports containing the purported shortcomings were never produced.

Denying an employer’s motion for summary judgment against the ADA associational disability discrimination claim brought by a former employee, a federal district court in Illinois found that a performance improvement plan’s reference to “focus” could mean that the employer’s supervisor perceived the employee to be inattentive to her daily credit collection responsibilities—but not so inattentive that she required an accommodation. As such, a genuine fact issue existed as to whether the supervisor’s unfounded beliefs about the employee being distracted by her husband’s illness was a determining factor in the termination decision. Her ADA retaliation claim also advanced. However, her FMLA interference and retaliation claims failed as there was no indication she requested leave or intended to do so once eligible for leave (Clevenger v. A.M. Castle & Co., No. 21-CV-5889 (N.D. Ill. Mar. 31, 2025)).

The employer is a distribution company that provides metal materials to customers on a transactional basis. The employee was hired as a credit representative on February 1, 2018. She has worked for the credit departments of various companies for 35 years. Her job duties included collecting on past due accounts.

Cancer diagnosis. In August 2018, the employee’s husband was diagnosed with stage four pancreatic cancer. He began treatment the following month. The employee notified the employer of her situation sometime around September 5.

Remote work. Each week, the employee and her husband traveled to a medical facility for treatment. They stayed at the facility from Thursday through Sunday. The employee suggested that she work remotely from the facility on those Thursdays and Fridays. The employer had no formal remote work policy at the time but nonetheless agreed to the request.

Attitude change. According to the employee, however, her supervisor’s “whole approach” changed toward her after he learned of her husband’s diagnosis, becoming more abrupt and exhibiting increasing hostility toward her.

Complaints. On two occasions, the supervisor attempted to cancel her remote work arrangement. On the second occasion, the supervisor pointed to issues the employee was having with her VPN and customers allegedly having difficulty reaching her. An HR representative requested documentation from the supervisor with the specific customer complaints but never received them. Following conversations with HR personnel, the employer opted to continue the remote working arrangement and also agreed to allow the employee to carry a negative PTO balance to accommodate her husband’s care needs.

PIP. On December 10, the supervisor placed her on a performance improvement plan. According to the employer, the employee’s “agings,” which are past-due amounts owed by customers, had increased in October and November. The PIP set three goals. Most importantly, the employee was tasked with reducing her agings by three percent over the next 15 to 30 days, a task the employee believed to be unrealistic as customers were used to a 60-day grace period and many companies would be closed for the holidays.

Retaliation complaint, termination. Two days before the PIP’s expiration date, the employee emailed the HR representative with a retaliation complaint. On January 10, 2019, the employee was terminated for failing to meet the goals set forth in the PIP. Subsequently, she filed this lawsuit.

Associational discrimination. First, the court addressed the employee’s claim for associational disability discrimination. The employee proceeded under a distraction theory. To be actionable, the distraction or interference with the employee’s work must not rise to the level at which a reasonable accommodation would be required for the employee to perform satisfactorily. In this instance, the dispositive question was whether a reasonable jury could find that the disability of the employee’s husband was a determining factor in the employer’s termination decision.

Arguing that there was no evidence from which a jury could find the employee was distracted at work or that the employer regarded the employee as being distracted by her husband’s illness and treatment, the employer noted that there was no indication anyone had ever made negative comments about the husband’s condition. Further, the employer argued that it attempted to accommodate the employee through remote work and allowing her to carry a negative PTO balance. The employer contended that it would not have provided these accommodations had it harbored discriminatory intent, but it failed to cite to any cases creating a safe harbor for employers who attempt to accommodate in these circumstances.

Written concerns. Although the supervisor did not comment verbally to the employee about being distracted, a jury could find that he had written down such concerns in the PIP when he stated that the employee needed to “focus on prioritizing [her] daily credit collection responsibilities.”

Given this language, a jury could reasonably conclude that the supervisor, having been thwarted in his efforts to cancel the remote work arrangement, continued to believe that the employee was not focusing on her work due to her husband’s illness, and thus began fabricating performance problems in an effort to justify terminating her, observed the court.

Considered in this context, continued the court, a reasonable jury viewing the PIP favorably to the employee could find its reference to “focus” as meaning that the supervisor perceived the employee to be inattentive to her daily responsibilities—but not so inattentive she required an accommodation. As such, a genuine fact question exists material to whether the supervisor’s unfounded beliefs about the employee being distracted was a determining factor in the decision to terminate her employment, said the court.

ADA retaliation. Turning to the employee’s ADA retaliation claim, the employer argued that she could not establish a causal connection between her protected activity—her January 8 email alleging retaliation—and her termination two days later because: (1) the events setting in motion her termination (the PIP) occurred before January 8; (2) by the time she sent her email she already knew she would not achieve the PIP’s goals; and (3) there was allegedly no dispute that she had failed to meet those goals. The court was not persuaded.

The employer’s first and third arguments improperly resolved genuine factual disputes in its favor, explained the court. As to the claim that employee knew she would be terminated by January 8, the evidence only showed that the employee believed she would be terminated based on what the supervisor told her about the fifteen-to-thirty-day aging reports.

There was ample evidence, including the January 8 email complaining of retaliation, supporting the conclusion that the employee regarded the supervisor’s claims to be a contrivance intended as pretext for prohibited discrimination, said the court. This evidence of pretext coupled with the highly suspicious timing of the termination raised genuine fact issues on the causation element of the employee’s ADA retaliation claim.

FMLA claims. Finally, the court considered the employee’s FMLA claims alleging interference and retaliation. Here, the court found no evidence that the employee had put her employer on notice that she was requesting FMLA leave once she became eligible. It was undisputed that, due to her husband’s prognosis, the employee did not know in January whether she intended to request FMLA leave in February when she would become eligible.

Although she had communicated that her husband’s future treatment was unknown and open-ended, this was not enough to indicate an intention to take FMLA leave upon eligibility, said the court. Accordingly, summary judgment was granted against her FMLA claims.

The case is No. 21-CV-5889.

Judge: Gottschall, J.

Attorneys: Colleen M. McLaughlin (Law Offices of Colleen M. McLaughlin) for Deborah Clevenger. Jessica D. Causgrove (Fisher Phillips) for A.M. Castle & Co.

Companies: A.M. Castle & Co.

Cases: Discrimination DisabilityDiscrimination Discharge EmployeeLeave Retaliation IllinoisNews GCNNews