Hentschel v. County Of Dupage

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD HENTSCHEL,

Plaintiff,

v. Case No. 21 C 6503

COUNTY OF DUPAGE, JENNIFER Judge Harry D. Leinenweber

SINN and MARGARET EWING,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant DuPage County’s Motion for

Summary Judgment. For the reasons stated herein, the Court grants

Defendants’ Motion.

I. BACKGROUND

Plaintiff Richard Hentschel (hereinafter, “Hentschel,” or

“Plaintiff”) filed this lawsuit against Defendants DuPage County

(“DuPage”), Jennifer Sinn, and Margaret Ewing (collectively,

“Defendants”), in December 2021 alleging claims of associational

disability discrimination under the Americans with Disabilities

Act (“ADA”); retaliation under the Family Medical Leave Act

(“FMLA”); and defamation. The Defendants now seek summary judgment

in its favor on all claims.

A. Plaintiff’s Performance at DuPage

Hentschel worked as a Senior Budget Analyst for Defendant

DuPage in the Finance Department beginning in April 2019. (Dkt.

No. 1, Complaint (“Compl.”) ¶ 7; Dkt. No. 39, Defendants’ Statement

of Facts (“Def. SOF”) ¶ 7.) The Senior Budget Analyst position is

expected to be a team lead and complete budget tasks independently,

taking the burden off management. (Def. SOF ¶ 8.) Within the Budget

Team, Hentschel worked alongside two other members – Defendant

Jennifer Sinn (“Sinn”), who supervised the team, and a budget

analyst. (Id.)

One of the Budget Team’s tasks in 2020 was to prepare the

DuPage County “Budget Book” for the County’s financial plan for

fiscal year 2021. (Def. SOF ¶ 10.) The preparation for the Budget

Book takes place primarily from August through December, and

everyone on the budget team works on the Budget Book. (Id.) The

process for developing the financial plan begins in April, when

County departments begin preparing their budgets to deliver to the

Finance Department in July. (Id. ¶ 14.) After incorporating

feedback from the Financial Department, the Budget Team prepares

the schedules for the Budget Book and presents it to the County

Board Chair, who presents it to the Board at the end of September.

(Id.) The Board has until the end of November to present a budget

for the County. (Id.) Those on the Budget Team were informed about

how to operate Infor ERP System (“Infor”) and were expected to

update Microsoft OneNote – a software documenting aspects of the

budget process. (Id. ¶ 11.)

Hentschel’s performance was reviewed twice during his time at

DuPage — first in October 2019, six months after he started, and

once in October 2020, a few months before his termination in

December 2020. (Id. ¶ 16.) In his first review, Hentschel received

a score of 3.4, indicating that his performance “meets jobs

expectations.” (Id. ¶ 17.) The comments documented his Excel and

communication skills but also noted his “need to be proactive by

learning all tasks in One Note and keeping it up to date.” (Dkt.

No. 39-9, Exhibit I, at 3.) The comments also documented

Hentschel’s failure to take initiative to consult reference

documents when he had a question, failure to work independently of

management instruction, and his need to document in a notebook

what was said and assigned to him in meetings. (Id. at 2-4.) Among

the “goals” listed in his review included proficiency in use of

the Infor system, more regular updating of Microsoft OneNote, and

checking work for errors prior to submitting. (Id. at 5.) Plaintiff

signed off on this evaluation and did not request changes. (Def.

SOF ¶ 18.)

In his October 18, 2020, review, Hentschel received a score

of 3.1, meeting job expectations. His reviewers again noted his

need to “be more thorough and detail oriented in reviewing

documents/budgets,” especially when documents were being released

“to the County Board/public.” (Dkt. No. 39-10, Exhibit J, at 1.)

The comments also describe errors that Hentschel made in documents

and budgets, as well as “budget numbers not analyzed,” and “budget

items [] not completed even after direction was given in early

July.” (Id.) One comment noted once more that “Rich needs to take

notes when talking to others” and “needs to be proactive by

learning all tasks in OneNote and keeping it up to date.” (Id.

at 2.) The goals listed were the same as those listed the previous

year. (Id. at 2, 4.) Hentschel signed the evaluation and provided

no comments. (Def. SOF ¶ 21.)

Sinn testified during her deposition that before Hentschel’s

six-month probationary period was over in October 2019, she had

wanted to terminate Hentschel as a result of his “argumentation

and debating.” (Dkt. No. 39-4 (“Sinn Dep.”) at 14:2-6.) Sinn

raised the issue with the Deputy Chief Financial Officer (CFO),

Mary Catherine Wells (“Wells”), who agreed with the suggested

termination, but Jeffrey Martynowicz (“Martynowicz”), the CFO of

DuPage County, selected to keep Hentschel on. (Id. at 14:7-14.)

B. Plaintiff’s FMLA Leave

Two days after his second performance review, Hetschel

applied for Family Medical Leave (“FMLA”), on October 20, 2020.

(Def. SOF ¶ 63.) Hentschel’s FMLA leave was approved on November 4,

2020. (Id. ¶ 64.) Hentschel sought leave to care for his teenage

daughter who was struggling with and hospitalized for mental health

issues. (Compl. ¶ 9.) Hentschel needed to be available for meetings

or calls during the workday regarding her care. (Id.) Defendant

Sinn was notified of his intermittent FMLA on November 4, the date

he was approved. (Def. SOF ¶ 65.) Sinn did not discuss Hentschel’s

FMLA leave with anyone beyond forwarding the FMLA memoranda to

Martynowicz. (Id. ¶¶ 68, 73.) Mason-Ewing, in HR, also knew of

Hentschel’s FMLA status. (Dkt. No. 43, Plaintiff’s Statement of

Facts (“Pl. SOF”) ¶ 10.)

Plaintiff took FMLA leave exactly five times, for two hours

on October 28, 2020; one hour on October 30, 2020; seven hours on

November 5, 2020; one hour on November 19, 2020, and four hours on

November 25, 2020, totaling fifteen hours. (Def. SOF ¶ 69.)

C. Plaintiff’s Termination

Hentschel was terminated on December 21, 2020. Leading up to

his termination, Hentschel had been working on the Coronavirus

Relief Fund (“CRF Project”) under the supervision of Deputy Chief

Financial Officer Mary Catherine Wells (“Wells”). (Def. SOF ¶ 30.)

The CRF Project related to $161 million dollars that the County

received from the Federal Government as a part of the Federal

Government’s Coronavirus Relief legislation to aid the County’s

response to the pandemic. (Id. ¶ 31.) After Plaintiff completed

his work on the CRF project, it would be reviewed by the Finance

Department’s senior accountants, the accounting manager, Ms.

Wells, internal audit, external audit, single audit, the County

Board for passage and ultimately the State’s auditor and the U.S.

Treasury Department. (Id. ¶ 33.)

The deadline for the CRF project was December 30, 2020, and

the County Board needed to approve the journal entry before that

date. (Id. ¶ 34.) The County Board was set to have a special call

meeting on December 22, 2020 to approve the journal entry that

Hentschel was preparing. (Id. ¶ 35.) In order to meet the deadline

and comply with the Illinois Open Meetings Act and County

procedure, the deadline to review and provide the agenda to the

County Board staff was Thursday night (December 17, 2020) or, at

the latest, Friday morning (December 18, 2020). (Id. ¶ 36.) Wells

testified that Hentschel’s inability to use the Infor system

significantly delayed the CRF team, and that the delay would have

been avoidable had Hentschel followed instructions and known how

to use Infor. (Id. ¶ 42.) Wells also testified that Hentschel

changed the County’s standard practice in presenting the

information and became oppositional with Wells when she told him

to correct his mistakes – each of which further caused delays.

(Id. ¶¶ 45, 47.) Hentschel completed the project on Friday,

December 18. Hentschel argues he understood the deadline to be

Friday. (Pl. SOF ¶ 31.) In order to meet the deadline and comply

with the Illinois Open Meetings Act and County procedure to produce

the agenda to the County Board staff by Friday (December 18, 2020),

DuPage asserts that the Budget Team’s deadline was Thursday

(December 17, 2020). Because Hentschel did not submit his portion

of the assignment until Friday morning, Defendants allege the

Budget Team missed its deadline to present to the County Board.

(Id. ¶ 50.)

Martynowicz watched Hentschel leave the Finance Department at

4:30 p.m. on Thursday, before delivering his portion of the

project, while other senior staff, including himself, stayed late

to complete the CRF project. After this, Martynowicz initiated the

procedure to terminate Hentschel. (Id. ¶¶ 51-52.) Sinn testified

that she had not wanted to terminate Hentschel at this stage, but

rather wanted him placed on a Performance Improvement Plan (“PIP”).

(Sinn Dep. at 30:6-9.) However, the guidance from Defendant Mason-

Ewing in the Human Resources Department was to terminate Hentschel.

(Def. SOF. ¶ 55.) After this decision was made, Sinn drafted

Hentschel’s termination letter with input from Wells, who also

signed the letter, and a copy of the letter was placed in

Hentschel’s personnel file. (Def. SOF ¶ 80.) Sinn testified that

she never told anyone she thought Hentschel’s performance issues

were related to his daughter’s care and his FMLA leave. (Sinn Dep.

at 37:10-22.)

II. LEGAL STANDARD

Summary Judgment is appropriate if there is “no genuine

dispute of material fact and the movant is entitled to judgment as

a matter of law.” FED. R. CIV. P. 56(a). A dispute is genuine if a

reasonable jury could return a verdict for the nonmoving party.

Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The relevant

substantive law governs whether a fact is material. Id. When

reviewing the record on a summary judgment motion, the Court must

view the facts and draw reasonable inferences in the light most

favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372,

378 (2007). If, however, the factual record cannot support a

rational trier of fact to find for the nonmoving party, summary

judgment is appropriate. Id. at 380.

III. DISCUSSION

A. ADA Claim

The Complaint alleges that DuPage discriminated against

Hentschel based on his association with an individual (in his case,

his daughter), with a disability. (Compl. ¶¶ 15-18.) An employer

is prohibited from “excluding or otherwise denying equal jobs or

benefits to a qualified individual because of the known disability

of an individual with whom the qualified individual is known to

have a relationship or association.” 42 U.S.C. § 12112(b)(4); see

also 29 C.F.R. § 1630.8. Even though “an employer does not have to

accommodate an employee because of her association with a disabled

person, the employer cannot [adversely treat] the employee for

unfounded assumptions about the need to care for a disabled

person.” Magnus v. St. Mark United Methodist Church, 688 F.3d

331, 337 (7th Cir. 2012).

The Seventh Circuit endorsed a modified McDonnell Douglas

test for association discrimination claims, stating that a

plaintiff can prove his prima facie case by establishing: (1) he

was qualified for the job at the time of the adverse employment

action; (2) he was subjected to an adverse employment action; (3)

at the time, his employer knew he had a relative or associate with

a disability; and (4) his case falls into one of the three relevant

categories of expense, distraction, or association. Ciesielski v.

JP Morgan Chase & Co., 2016 WL 3406399, at *6 (N.D. Ill. June 21,

2016) (citing Magnus, 688 F.3d at 336). After making a prima facie

case, “the burden shifts to the employer to offer a

nondiscriminatory motive, and, if the employer does so, the burden

shifts back to the plaintiff to show that the employer's stated

reason was a pretext.” Igasaki v. Illinois Dep't of Fin. & Pro.

Regul., 988 F.3d 948, 957 (7th Cir. 2021) (internal citation

omitted).

In seeking summary judgment on this claim, Defendants argue

that Hentschel cannot make a prima facie case of disability

discrimination under this modified test because he failed to show

that any decision maker who chose to terminate Hentschel knew about

Hentschel’s daughter’s alleged disability. Defendants argue that

only Sinn knew details about Hentschel’s daughter’s disability.

This is unpersuasive, as Defendants do not dispute that Wells,

Mason-Ewing, and Martynowicz were each aware that Hentschel had

applied and was approved for FMLA, even if they did not know

specifics about Hentschel’s daughter. (Pl. SOF ¶ 10; Def. SOF

¶ 65.)

In its memorandum opinion on the Motion to Dismiss, this Court

already ruled that Hentschel had not alleged facts such that his

claim would fall under any of the three categories – expense,

distraction, or association – but that Plaintiff’s Complaint

survived because it adequately pleaded that Plaintiff was fired

“under circumstances raising a reasonable inference that the

disability of the relative or associate was a determining factor

in the employer’s decision.” Magnus, 688 F.3d at 337 (citing

Dewitt v. Proctor Hosp., 517 F.3d 944, 952 (7th Cir. 2008)). The

remaining question, then, is whether Plaintiff can demonstrate

that Defendants’ proffered justifications for terminating

Plaintiff were pretextual and whether Plaintiff’s FMLA was a

“determining factor” in the decision to terminate. Id. Defendants

argue that even if Plaintiff had presented a prima facie case of

disability discrimination, Plaintiff’s claim nevertheless fails to

overcome the County’s non-discriminatory reason for terminating

Plaintiff and offers no evidence of discriminatory intent. The

Court agrees.

Defendants offer and the record exhibits several legitimate

justifications for terminating Hentschel relating to Hentschel’s

unresolved and repeated errors in his work product. First,

Defendants point to the termination letter listing several

deficiencies: numerous errors in the FY2021 Financial Plan;

failure to learn the Infor ERP system; reliance on management to

perform research tasks that were assigned to Hentschel; and

incorrect/unsatisfactory work on the CRF Fund Payroll estimates.

(Dkt. No. 43-7, Termination Letter). Second, Hentschel’s two

performance reviews elicit critiques that his supervisors had with

his work, even before Hentschel even applied for FMLA. Third,

Defendants offer evidence conveying dissatisfaction with

Hentschel’s work on the CRF project, including that Hentschel took

nearly five hours to obtain necessary information for the CRF

project for an assignment that should have taken 30 minutes,

because of Hentschel’s inability to utilize Infor. (Def. SOF

¶¶ 40-41.) And fourth, Hentschel submitted his portion of the CRF

assignment on Friday, December 18, when the deadline was Thursday,

December 17.

Plaintiff argues Defendants’ justifications are pretextual.

To meet the burden of showing that the employer's stated reason

was pretextual, a plaintiff “must identify such weaknesses,

implausibilities, inconsistencies, or contradictions” in the

employer's stated reason “that a reasonable person could find [it]

unworthy of credence.” Harper v. C.R. England, Inc., 687 F.3d 297,

311 (7th Cir. 2012) (internal quotations omitted). First,

Plaintiff disputes the Friday deadline error, testifying that he

was told the deadline was noon on Friday December 18, and he

submitted his assignment before 11 a.m. that day without error.

There seems to be a genuine dispute about when Plaintiff understood

the deadline to be. But because Defendants do not rely solely on

the missed deadline as justification for Plaintiff’s termination,

the Court does not find this constitutes sufficient evidence of

pretext as to deny summary judgment.

Second, Plaintiff argues that because Martynowicz did not

check to confirm whether Plaintiff actually left the office early

on Thursday, the idea that he fired Plaintiff for doing so is

“unworthy of credence” and thus pretextual. (Dkt. No. 41,

Plaintiff’s Opposition, at 9.) There is no dispute that Plaintiff

left early on Thursday. And again, Defendants offer sufficient

additional justification for firing Plaintiff beyond the Friday

deadline issue. Further, even if Martynowicz mistakenly believed

that Plaintiff knew the deadline was Thursday evening, in assessing

pretext, a court does “not evaluate whether the stated reason ‘was

inaccurate or unfair, but whether the employer honestly believed

the reason it has offered to explain’” the adverse action. Harden

v. Marion Cnty. Sheriff's Dep't, 799 F.3d 857, 864 (7th Cir. 2015)

(citation omitted); see also Castetter v. Dolgencorp, LLC, 953

F.3d 994, 997 (7th Cir. 2020) (same). Contrary to Plaintiff’s

suggestion, that Martynowicz did not literally follow Hentschel

out of the building to confirm he left does not suggest he did not

honestly believe he left before the deadline.

Third, Plaintiff argues Defendants’ justifications for

terminating Plaintiff have shifted, since the termination letter

mentioned nothing about Plaintiff leaving early from work before

the December 17 deadline. Plaintiff’s reliance on Perfetti v. First

Nat. Bank is inapt here. 950 F.2d 449, 456 (7th Cir. 1991). The

Seventh Circuit in Perfetti noted that if at the time of the

adverse employment decision the decision-maker gave one

justification, and then at trial gave a different reason

unsupported by documentary evidence, the jury could reasonably

conclude pretext. Id. This case is not at trial, and Defendants’

justifications here are not “shifting.” The record evidence

supports that there were several reasons why Defendants felt

justified in terminating Plaintiff, and Plaintiff provides no

reason why Defendants must include each of these justifications in

the formal termination letter.

Fourth, Plaintiff offers “similarly situated” employees that

were allegedly treated more favorably than Plaintiff because they

received progressive discipline for performance problems, which

Plaintiff was not afforded before termination. Plaintiff concludes

the other employees were “similarly situated” to Plaintiff because

they, too, were in the Finance Department and reported to Sinn,

though were not on FMLA leave. Although the “similarly situated”

concept is a flexible one, Henry v. Jones, 507 F.3d 558, 564 (7th

Cir. 2007), the comparators must be similar enough that differences

in their treatment cannot be explained by other variables, such as

distinctions in their roles or performance histories, Filar v. Bd.

of Educ. of Chi., 526 F.3d 1054, 1061 (7th Cir. 2008). Here, each

of the four comparators was lower in rank than Plaintiff, who was

second to Defendant Sinn’s on the Budget Team. (Pl. SOF ¶ 19.) See

Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009) (salesmen

with “lower-ranking sales positions” were not similarly situated

to the plaintiff, who was fired for performance reasons).

Defendants were entitled to hold lower ranking employees to a lower

standard than Hentschel. Id.

Fifth, Plaintiff contends that Defendants’ failure to follow

its own policies pertaining to discipline and termination suggests

Defendants’ justifications were pretextual. Plaintiff points to

DuPage County procedures that provide for the employee’s

opportunity to explain his or her conduct before disciplinary

action, as well as a human resources review of the manager’s

documentation before disciplinary action. Yet the policy carves

out termination as a possibility in the case of a “severe

violation, or repeated violations.” (Dkt. No. 43-9, Disciplinary

Guidelines, at 4.) It was within DuPage County’s discretion to

sidestep the procedures laid out — particularly for a more senior

employee. See Bideau v. Beachner Grain, Inc., 2011 WL 4048961, at

*9 (D. Kan. Sept. 13, 2011) (“when an employer’s progressive

discipline policy is a permissive one, a failure to proceed through

each step of the disciplinary process is not indicative of

pretext.”); see also Berry v. T. Mobile USA, Inc., 490 F.3d 1211,

1222 (10th Cir. 2007) (“The mere fact that an employer failed to

follow its own internal procedures does not necessarily suggest

[the employer’s reasons for termination] were pretextual”)

(internal quotations omitted). Plaintiff correctly cites Rudin v.

Lincoln Land Cmty. Coll. for the proposition that an employer’s

failure to follow its own internal employment procedures can

constitute evidence of pretext. Rudin v. Lincoln Land Cmty. Coll.,

420 F.3d 712, 727 (7th Cir. 2005). But failure precisely to follow

internal guidelines – which already permit sidestepping – is not

sufficient on its own to raise an inference of discriminatory

intent.

Finally, Plaintiff argues the timing of Plaintiff’s

termination – 6 weeks after approval for FMLA leave – is suspicious

and suggests pretext. Although temporal proximity can serve as an

important evidentiary ally of the plaintiff, it is rarely alone

sufficient to create a triable issue on causation. Cieslieski,

2016 WL 3406399, at *9; Simpson v. Office of Chief Judge of Circuit

Court of Will Cnty., 559 F.3d 706, 713 (7th Cir. 2009). Plaintiff

took FMLA leave a total of five times, totaling fifteen hours,

between October 28, 2020, and November 25, 2020, and Plaintiff was

terminated on December 21, 2020. Any argument of suspicious timing

is undercut by preexisting and documented issues that Plaintiff’s

supervisors had with Plaintiff’s performance even before he

applied for FMLA. The more telling temporal proximity is that

between Plaintiff’s termination and Plaintiff’s delivery of his

CRF assignment on Friday, December 18 instead of Thursday,

December 17.

Ultimately, Plaintiff offers no evidence suggesting

Defendants fired Plaintiff because of his FMLA leave. Plaintiff

does not argue his claim falls under any of the three categories

of expense, distraction, or disability by association. Plaintiff

concedes that no employee discouraged Plaintiff from taking FMLA

at any time. (Def. SOF ¶¶ 60, 66-67.) Plaintiff has not offered

evidence – circumstantial or otherwise – that calls into question

whether Martynowicz, Mason-Ewing, or Wells honestly believed that

Plaintiff failed to meet expectations or that termination was the

best option. Here, the justifications for terminating Plaintiff

are credible. This is true particularly in light of the employment

context at DuPage County, where work product errors on the budget

risk directly impacting taxpayers’ money. A reasonable jury would

not be likely to find in Plaintiff’s favor here, and the Court

grants summary judgment for the ADA claim.

B. FMLA Retaliation

The FMLA “provides eligible employees the right to take unpaid

leave for a period of up to twelve work weeks in any twelve-month

period because of a serious health condition, including the serious

health condition of a family member,” and it “affords employees

protection in the event that they are retaliated against because

of their choice to exercise their rights under the Act.” Lewis v.

Sch. Dist. #70, 523 F.3d 730, 741 (7th Cir. 2008) (citing 29 U.S.C.

§ 2615(a)). “Retaliation claims under the FMLA . . . require three

familiar elements: (1) the employee engaged in statutorily

protected activity; (2) the employer took adverse action against

the employee; and (3) the protected activity caused the adverse

action.” Freelain v. Vill. of Oak Park, 888 F.3d 895, 901 (7th

Cir. 2018).

At issue here is the third element – causation. Plaintiff

relies on the same pretext arguments he made in support of the ADA

claim. This argument fails for the same reasons the Court set out

above. See Castillo v. Franciscan Alliance, Inc., 2022 WL

11762208, at *9 (N.D. Ind. Oct. 19, 2022). Summary judgment in

Defendants’ favor is appropriate.

C. Defamation

Plaintiff’s final claim alleges the statements in Plaintiff’s

termination letter were defamatory under Illinois state law. This

Court held at the Motion to Dismiss stage that Plaintiff’s

Complaint adequately pled the allegedly defamatory statements were

defamation per quod, not per se. A Plaintiff must show actual

damages of a pecuniary nature to succeed on a defamation per quod

claim. Hukic v. Aurora Loan Serv. , 588 F.3d 420, 438 (7th Cir.

2009). Plaintiff alleges that Mason-Ewing decided to recommend

Plaintiff’s termination because of the statements in the

Termination Letter. Plaintiff also asserts that as a result, the

letter caused pecuniary damages resulting in loss of income and

benefits. But this misrepresents the timing of undisputed facts.

Mason-Ewing testified, and Plaintiff does not dispute that “after

it was determined that [Hentschel] would be terminated . . . the

[termination] letter was drafted and finalized.” (Dkt. No. 39-13,

Mason-Ewing Deposition, at 28:11-15.) Thus, the statements in the

letter could not have caused Plaintiff’s termination if the letter

was drafted after the decision was made to terminate him.

As a result, Plaintiff fails to show any pecuniary harm

resulting from the statements themselves, and Summary Judgment is

appropriate on this claim.

IIL. CONCLUSION

For the reasons stated herein, the Court grants Summary

Judgment on all claims.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Dated: 10/26/2023

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