Myvett v. Kraft Heinz Foods Company, LLC

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ASHLEY N. MYVETT a/k/a )

ASHLEY N. LIDDELL, )

)

Plaintiff, )

) 17 C 8711

v. )

) Judge John Z. Lee

)

KRAFT HEINZ FOODS )

COMPANY, LLC, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Ashley Myvett was fired in June 2017 from her position as an in-

store partner at Kraft Heinz Food Company (“Kraft Heinz”). She then filed this

lawsuit, alleging that Kraft Heinz fired her because of her physical disability (Count

I) and failed to reasonably accommodate her (Count II), both in violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. Kraft Heinz has

moved for summary judgment [64] as to both of Myvett’s claims. For the following

reasons, that motion is granted in part and denied in part.

Background1

Myvett is a former employee of Kraft Heinz, a marketer of food and beverage

products that is a “covered” employer as defined by the ADA. Defs.’ L.R. 56.1

Statement of Facts (“DSOF”) ¶¶ 1, 2, ECF No. 66. In 2016, Kraft Heinz started

1 The following facts are undisputed or have been deemed admitted, unless otherwise

noted.

“Project LEGO” to increase purchases of its food and beverage products, including

by using a new in-store sales team to execute merchandising and sales objectives.

Id. ¶ 5.

Myvett began working full-time as an in-store partner (“ISP”) in Kraft Heinz’s

LEGO division on January 17, 2017. Id. ¶ 8. ISPs are responsible for visiting and

working with stores in a specifically assigned territory. Id. ¶ 9. Myvett was

assigned to seventeen stores in the “Chicago South” territory. Id.

Myvett reported to Associate Manager Nhora Rodriguez. Id. ¶ 11. Starting

in late March 2017, Rodriguez began reporting to Regional Manager Heath Harlem.

Id. ¶ 12. Harlem in turn reported to Gabriel de Sousa, the Director of In-Store Sales

and one of the leaders of the LEGO division. Id. ¶ 13. According to Harlem, during

his first conversation with Rodriguez about Myvett in March 2017, Rodriguez told

him that Myvett sometimes had a negative attitude and did not follow instructions.

Id. ¶ 37.

On March 8, 2017, Myvett began a medical leave of absence relating to a

surgical procedure. Id. ¶¶ 24–25. She returned to work on April 10, 2017. Id. ¶ 28.

Her doctor’s note, which she emailed to Kraft Heinz a few days before returning,

stated that she could not lift more than ten pounds, and that she would need to stop

and take breaks if she experienced pain while driving. Id. ¶ 27.

Late in the evening on May 24, 2017, Harlem learned of Myvett’s lifting

restriction. Id. ¶ 30. Within minutes, he emailed de Sousa, HR Group Lead Maria

Aliberti, and HR Specialist Pearl Patel with the subject line “Ashley Liddell Myvett

Accommodation request.” Def.’s Ex. A, Harlem Dep. Ex. 16 at 1, ECF No. 66-1. In

the email, Harlem expressed concern about the lifting restriction, saying, inter alia,

that there was “not an end in [sight],” that it would make “much of our

merchandising impossible for her to complete,” and asking, “how do we handle our

merchandising commitments that we made our retail teams for her stores?” Id.

Harlem ended the email by stating that “Ashley has been a problem ISP, with poor

communication, and earlier this week committed a major offense.” Id.

Roughly ten minutes later, Harlem sent another email to Pearl, Aliberti, and

de Sousa detailing Myvett’s failure to bring her iPad to work two days earlier and

seeking to generate a warning letter. Harlem Dep. Ex. 21 at 2. As a result of these

emails, Aliberti initiated an investigation into Myvett’s performance, DSOF ¶ 53,

and Patel sent Myvett paperwork so that she could formally request a reasonable

accommodation, id. ¶ 31. Myvett did not fill out the forms. Id.

Aliberti’s investigation eventually led to Myvett’s termination on June 16,

2017. Id. ¶ 61. Her termination was a collective decision made by Harlem, Aliberti,

and de Sousa, id. ¶ 63; Kraft Heinz asserts that they concluded that Myvett had

suffered from performance and integrity deficiencies, including failing to spend

sufficient time in her stores, having attitude problems, and artificially inflating her

quarterly bonus. Id. ¶ 64. Myvett disputes the existence or severity of these

deficiencies. See, e.g., Resp. to DSOF ¶¶ 53–63, ECF No. 73.

Myvett subsequently brought this action under the ADA, alleging that Kraft

Heinz wrongfully terminated her on the basis of her disability (Count I) and failed

to reasonably accommodate her (Count II). See Compl., ECF No. 8. Kraft Heinz

moves for summary judgment as to both claims. See Mot. for Summ. J., ECF No.

64; Mem. in Supp. of Summ. J, ECF No. 65.

Legal Standard

“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). 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), and instead must “establish some genuine issue for trial

such that a reasonable jury could return a verdict in her 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.

2013).

Analysis

I. Local Rule 56.1

Under Local Rule 56.1, “a non-movant seeking to assert facts that go beyond

what is fairly responsive to the movant’s Local Rule 56.1(a)(3) assertions must do

so not in [their] Local Rule 56.1(b)(3)(B) response, but rather in a Local Rule

56.1(b)(3)(C) statement of additional facts.” Buford v. Laborers’ Int’l Union Local

269, No. 16 C 10218, 2019 WL 184052, at *3 (N.D. Ill. Jan. 14, 2019); see Eason v.

Nolan, 416 F. App’x 569, 570 (7th Cir. 2011) (“[T]he district court did not abuse its

discretion when it disregarded the additional facts that [the non-movant] included

in his [Local Rule 56.1(b)(3)(B) response.”]).

Myvett’s responses to Kraft Heinz’s Local Rule 56.1(a)(3) statement of facts

often contain additional facts that were not properly included with her Local Rule

56.1(b)(3)(C) statement of additional facts. See Resp. to DSOF; Pl.’s Rule 56.1

Statement of Additional Facts (“PSOAF”), ECF No. 74. Those additional factual

statements have been disregarded. See Eason, 416 F. App’x at 570; Ciomber v. Coop.

Plus, Inc., 527 F.3d 643–44 (7th Cir. 2008). That said, the Court still considered

some of the underlying evidence referenced by Myvett, as noted below by citations

to the raw record materials. See Fed. R. Civ. P. 56(c)(3) (“The court need consider

only the cited materials, but it may consider other materials in the record.”).

II. Myvett’s Discriminatory-Discharge Claim

The Court turns to Myvett’s claim that Kraft Heinz discriminated against her

on the basis of her disability when it fired her in June 2017. “In order to defeat

summary judgment on her disability discrimination claim, [Myvett] must point to

evidence capable of establishing that (1) she is a person with a disability within the

meaning of the ADA . . .; (2) she is qualified to perform the essential functions of her

job with or without a reasonable accommodation; and (3) she suffered from an

adverse employment decision as a result of her disability.” Guzman v. Brown

County, 884 F.3d 633, 641 (7th Cir. 2018).

Kraft Heinz does not dispute that Myvett was a qualified individual with a

disability. Instead, the company argues that Myvett was fired because of her

performance deficiencies rather than her disability. In support, Kraft Heinz invokes

the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and contends that Myvett cannot establish that she was meeting its

legitimate employment expectations or that she was treated worse than any non-

disabled comparator. See Mem. in Supp. of Summ. J. at 4–10; Coleman v. Donahoe,

667 F.3d 835, 845 (7th Cir. 2012) (noting that, under the McDonnell Douglas

framework, “[t]o establish a prima facie case of discrimination a plaintiff must offer

evidence that: ‘(1) she is a member of a protected class, (2) her job performance met

[the employer’s] legitimate expectations, (3) she suffered an adverse employment

action, and (4) another similarly situated individual who was not in the protected

class was treated more favorable than the plaintiff.’” (citation omitted)).

But McDonnell Douglas is only one approach to answering the ultimate

question of whether there is evidence that “would permit a reasonable factfinder to

conclude that [her disability] . . . caused the discharge.” Ortiz v. Werner Enters.,

Inc., 834 F.3d 760, 765 (7th Cir. 2016). That is, even assuming that Myvett was a

substandard employee who cannot readily point to a similarly-situated co-worker

who was treated more favorably, she can survive summary judgment on her

unlawful-discharge claim if there is evidence in the record that would permit a

reasonable juror to conclude that her disability was the but-for cause of her firing.

See Knapp v. Evgeros, Inc., 205 F. Supp. 3d 946, 957–58 (N.D. Ill. 2016) (“McDonnell

Douglas is just one way that the record evidence could enable a reasonable juror to

find discrimination.”).

The record contains such evidence. The record suggests that Harlem, de

Sousa, and Aliberti—the three individuals who together decided to fire Myvett, see

DSOF ¶ 63—communicated about Myvett’s performance issues for the first time

within minutes after Harlem had become aware of Myvett’s lifting restriction.

Specifically, Harlem emailed de Sousa, Aliberti, and Pearl Patel at 10:53 p.m. on

May 24, 2017—with a subject line of “Ashley Liddell Myvett Accommodation

request”—stating that he had just became aware (“in the last [five] minutes”) of

Myvett’s lifting restriction. Harlem Dep. Ex. 16 at 1. He expressed concern that

there was “not an end in [sight]” for the restriction and that it would make “much

of our merchandising impossible for [Myvett] to complete.” Id.

Harlem’s email then proceeded to ask if the company would be able to

accommodate Myvett’s restriction, adding that even if she could be accommodated,

“how do we handle our merchandising commitments that we made our retail teams

for her stores?” Id. Only after noting these concerns did Harlem add that “[Myvett]

has been a problem ISP, with poor communication, and earlier this week committed

a major offense.” Id.

Within ten minutes of sending that message, Harlem again emailed de Sousa,

Aliberti, and Patel, stating that he wanted to issue a warning letter to Myvett about

forgetting to bring her iPad to work two days earlier. Harlem Dep. Ex. 21 at 2.

Aliberti responded the following morning and asked whether a Performance

Improvement Plan (“PIP”) grid had been filled out for Myvett yet, writing that “[w]e

want to document all of the performance issues . . . (do we have other examples of

when she did not bring the tablet)? What other performance issues is she having?”

Id. Aliberti finished the email by asking Patel whether “any additional

accommodation requests from [Myvett had] come through.” Id. And, as Kraft Heinz

acknowledges, Harlem’s late-night emails on May 24 prompted Aliberti to conduct

an investigation into Myvett’s performance which ultimately led to her termination.

DSOF ¶¶ 53, 61.

The timing and content of these communications would allow a reasonable

juror to conclude that the decisionmakers’ awareness of Myvett’s lifting restriction

set in motion the events that led to her termination. See Lang v. Illinois Dept. of

Children and Family Servs., 361 F.3d 416, 419 (7th Cir. 2004) (“[T]he timing of

events ‘is often an important evidentiary ally of the plaintiff.’” (quoting Lalvani v.

Cook County, 260 F.3d 785, 790 (7th Cir. 2001))). Not only did the relevant actors

initiate an investigation into Myvett’s performance almost immediately after

becoming aware of her lifting restriction, but they also indicated substantial concern

about that restriction and its ramifications in their contemporaneous emails. See

id. (“Close temporal proximity provides evidence of causation and may permit a

plaintiff to survive summary judgment provided that there is also other evidence

that supports the inference of a causal link.” (citation omitted)).

The record also contains other evidence casting doubt on the contention that

Myvett’s firing was unrelated to her disability. For instance, the PIP created at the

direction of Aliberti includes an entry noting that Myvett had an upcoming doctor’s

appointment on June 1, 2017, and that she “can only lift under [10 lbs] and has

limited [ability to] driv[e] should she experience pain.” Defs.’ Ex. J, Rodriguez Decl.

Ex. D at 1, ECF No. 66–10. Under the field “ISP Competency at Risk,” this entry

states “Cannot perform ISP duties.” Id.

Moreover, Kraft Heinz justifies the firing in part by noting that Rodriguez

had told Harlem in March 2017 that Myvett “had a negative attitude,” and “did not

take well to coaching,” Mem. in Supp. of Summ. J. at 6, but the record indicates that

these behavioral issues may been resolved by the time Myvett was fired.

Specifically, Rodriguez has testified that she “counseled [] Myvett” about these

deficiencies and that “by the beginning of June 2017”—shortly before Myvett was

fired—Rodriguez’s “opinion was that [Myvett] was making progress and had a lot of

potential.” Def.’s Ex. E, Rodriguez Decl. at 1–2, ECF No. 66-5. Furthermore,

although Kraft Heinz stresses that Chicago South was the “absolute most critical”

territory in the LEGO division, DSOF ¶ 10—and thus Myvett’s performance

deficiencies were “particularly disconcerting,” Mem. in Supp. of Summ. J. at 1—

there is evidence that Chicago South went without an ISP for “a few months” after

Myvett’s immediate successor was transferred to a different territory. Def.’s Ex. F,

Bright Decl. ¶ 7, ECF No. 66-6.

In sum, the Court concludes that the record contains evidence enabling a

reasonable jury to conclude that Myvett was fired on the basis of her disability. It

is worth noting that Myvett need only show that her disability was a but-for cause

of her firing; the disability need not be the only but-for cause of her firing. See

Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 963 (7th Cir. 2010); Knapp,

205 F. Supp. 3d at 959. So perhaps, as Kraft Heinz repeatedly protests, Myvett’s

performance deficiencies were a but-for cause of her firing. That is, perhaps Myvett,

notwithstanding her disability, would not have been fired had she been a better

employee. But because there is evidence in the record from which a reasonable juror

could conclude that, notwithstanding her performance deficiencies, Myvett would

not have been fired but-for her disability—and specifically, that it was her disability

that triggered the process that led to her eventual termination—summary judgment

is not appropriate as to Myvett’s discriminatory-discharge claim. Cf. Nigh v. School

Dist. of Mellen, 50 F. Supp. 3d 1034, 1056 (W.D. Wis. 2014) (“‘[A] single event can

have multiple but-for causes,’ and given the evidence [Plaintiff] has adduced to

support her retaliation claim, a reasonably jury might find that the Board would

[have renewed her] contract but for her FMLA leave—even if . . . her performance

deficiencies played just as great a role in the Board’s decision.” (citation omitted)).

III. Myvett’s Failure-to-Accommodate Claim

The Court, however, grants summary judgment as to Myvett’s failure-to-

accommodate claim. Myvett does not dispute that she did not request an

accommodation before she was terminated—even though Kraft Heinz gave her the

opportunity to make such a request—DSOF ¶ 31, and “the standard rule is that a

plaintiff must normally request an accommodation before liability under the ADA

attaches,” James v. Hyatt Regency Chi., 707 F.3d 775, 782 (7th Cir. 2013) (quoting

Jovanovic v. Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000)).

Myvett contends that her decision to not submit an accommodation request

had “little to do” with her own view of whether she needed an accommodation to

complete the essential functions of her job, and almost all to do with the fact that

the request paperwork was accompanied with the caveat, “[y]ou do not need to fill

out [the accommodation forms] if you do not wish to,” Defs.’ Ex. B, Myvett Dep. Ex.

19 (boldface font in the original). See Mem. in Opp. to Summ. J. at 14. But this

caveat is of limited legal significance; it is fairly innocuous boilerplate that

reasonably connotes no more than that an employee will not be punished solely

because they fail to fill out an accommodation request form. Moreover, the Court

notes that Myvett’s explanation for why she failed to fill out an accommodation

request is inconsistent with the explanation provided in her deposition. See Myvett

Dep. at 231:14–22 (stating that she did not fill out a request form because “I did not

need reasonable accommodations because I was able to do the essential job functions

that were required of me.”).

More broadly, Myvett argues that Kraft Heinz should have consulted further

with her before it determined that her disability precluded her from sufficiently

performing her job. See Mem. in Opp. to Summ. J. at 14–15 (faulting Kraft Heinz

for concluding on its own that she “[could not] do her job because of her disability”);

id. at 15 (stating that Kraft Heinz, notwithstanding their offer for her to request

accommodations, should have “notififed] her of its concerns regarding her

disability”). At bottom, though, Myvett alleges here that she could have performed

the essential functions of her job with or without reasonable accommodations, that

Kraft Heinz erred when it determined otherwise, and that the company thus

violated the ADA when it fired her. This is essentially a restatement of her

discriminatory-discharge claim. And thus, while that claim will go forward, see

supra, summary judgment is granted in favor of Kraft Heinz as to Myvett’s failure-

to-accommodate claim.

Conclusion

For the foregoing reasons, Kraft Heinz’s motion for summary judgment is

granted in part and denied in part. Myvett’s discriminatory-discharge claim will go

forward, but her failure-to-accommodate claim will not.

ENTERED: 3/16/20

JohnZ. Lee”

United States District Court Judge

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