Essex v. Permobil, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOSEPH G. ESSEX,

Plaintiff,

v. Case No. 24-cv-01941-SPM

PERMOBIL, INC.,

Defendant.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Pending before the Court is Defendant Permobil Inc.’s (“Permobil’s”) Motion for

Summary Judgment (Doc. 19) and Plaintiff Joseph Essex’s Motion to Continue

Permobil’s Motion for Summary Judgment (Doc. 28). For the reasons stated below,

the Court GRANTS in part and DENIES in part each motion. Moreover, the Court

DENIES Plaintiff’s Motion for Sanctions (Doc. 24).

BACKGROUND

Essex originally brought this action in the Circuit Court of St. Clair County,

Illinois against two defendants, Permobil and Peggy Spilker. (Doc. 1, Ex. A). In his

original Complaint, Essex alleges that his employer Permobil failed to grant him leave

under the Family and Medical Leave Act (“FMLA”) including leave and reporting

associated with “personal injuries,” and that they defamed him and terminated him

as a result of his disability. (Id.). Essex alleges that Spilker’s negligence resulted in

an automobile accident which led to the personal injuries that serve as the impetus

for his cause of action against Permobil. (Id.). Permobil removed this action to federal

court, asserting that this Court has federal question jurisdiction, or, in the alternative,

diversity jurisdiction. (Id.). Essex filed a Motion to Remand. (Doc. 7). Because the

causes of action were entirely unrelated, this Court determined that the Defendants

were improperly joined and, therefore, severed the case, creating complete diversity

and rendering the motion to remand moot. (Doc. 13). Essex filed his Amended

Complaint on January 2, 2025. (Doc. 14). Rather than filing an answer or motion to

dismiss, Permobil filed a Motion for Summary Judgment. (Doc. 19). Essex filed a

Motion to Strike the Motion for Summary Judgment on March 27, 2025. (Doc. 22).

Permobil filed a Reply on April 10, 2025. (Doc. 23). The Court determined that Essex’s

Rule 56(d) affidavit lacked the requisite specificity, and, therefore, denied his motion.

(See Doc. 27). However, as a courtesy, the Court gave Essex an opportunity to file an

amended motion. (See id.). Essex filed his Amended Motion on June 16, 2025. (Doc.

28). Permobil filed a Response on June 30, 2025 (Doc. 29), to which Essex filed a Reply

on July 25, 2025 (Doc. 33). The Court heard oral arguments on the motion on August

20, 2025. (Doc. 34).

LEGAL STANDARDS

The Court notes that as to Counts I and III, Permobil exclusively argues that

Essex fails to state a cause of action. Furthermore, at oral argument, counsel for

Permobil stated that the Court may treat its motion as a Motion to Dismiss, rather

than as a Motion for Summary Judgment. Accordingly, as to Counts I and II, the

Court will use the legal standard for a Motion to Dismiss. As to Counts II and IV,

however, where Permobil relies on the record to argue that no dispute of material fact

exists, the Court will use the standard for a Motion for Summary Judgment, and

evaluate Essex’s Motion to Continue pursuant to Rule 56(d) of the Federal Rules of

Civil Procedure.

I. Federal Rule of Civil Procedure 12(b)(6)

In analyzing a motion to dismiss for failure to state a claim filed pursuant to

Federal Rule of Civil Procedure 12(b)(6), this Court must determine whether or not

the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court of Appeals for the

Seventh Circuit has explained that “‘[p]lausibility’ is not a synonym for ‘probability’

in this context, but it asks for ‘more than a sheer possibility that a defendant has acted

unlawfully.’” Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015)

(quoting Olson v. Champaign County, 784 F.3d 1093, 1099 (7th Cir. 2015)). “While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations . . . [the] [f]actual allegations must be enough to raise a right to relief above

the speculative level . . . .” Twombly, 550 U.S. at 555.

District courts are required by the Court of Appeals for the Seventh Circuit to

review the facts and arguments in Rule 12(b)(6) motions “in the light most favorable

to the plaintiff, accepting as true all well-pleaded facts alleged and drawing all

possible inferences in her favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.

2008). “The purpose of a motion to dismiss is to test the sufficiency of the complaint,

not to decide the merits.” Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.

1990).

Because the instant suit was filed in Illinois and both parties have applied

Illinois law, the Court applies the same. See Ryerson Inc. v. Fed. Ins. Co., 676 F.3d

610, 611–12 (7th Cir. 2012).

II. Federal Rule of Civil Procecure 56(d)

Under the Federal Rules of Civil Procedure, a party “may move for summary

judgment at any time.” Am. Nurses’ Ass’n v. Illinois, 783 F.2d 716, 729 (7th Cir. 1986).

“The fact that discovery is not complete—indeed, has not begun—need not defeat the

[summary judgment] motion.” Id. Where a party requires additional discovery to

oppose a motion for summary judgment, federal law sets forth specific procedures for

obtaining such discovery. Under federal law, “[w]hen a party thinks it needs

additional discovery in order to oppose a motion for summary judgment . . . Rule 56(f)

[now Rule 56(d)] of the Federal Rules of Civil Procedure provides a simple procedure

for requesting relief: move for a continuance and submit an affidavit explaining why

the additional discovery is necessary.” Deere & Co. v. Ohio Gear, 462 F.3d 701, 706

(7th Cir. 2006).

A party seeking Rule 56(d)’s protection must make a good faith showing that it

cannot respond to the movant’s affidavit. Kalis v. Colgate–Palmolive Co., 231 F.3d

1049, 1058 n.5 (7th Cir. 2000). This requires an affidavit from the nonmovant

specifically identifying the material facts that it anticipates discovering. See

Grundstat v. Ritt, 166 F.3d 867, 873 (7th Cir. 1999) (finding vague assertions that

discovery would develop genuine issues of material fact insufficient to grant

continuance). Rule 56(d) “requires a party opposing summary judgment to do more

than request a ‘fishing expedition’ in the hope of finding evidence sufficient to

establish the existence of a genuine issue of material fact.” Cima v. WellPoint Health

Networks, Inc., 556 F. Supp. 2d 901, 905 (S.D. Ill. 2008) (citing Davis v. G.N. Mortgage

Corp., 396 F.3d 869, 885 (7th Cir. 2005)). Specifically, requests for additional

discovery must be specific, cannot be based upon speculation, and must demonstrate

how discovery would be likely to reveal genuine disputes of material fact. Trzeciak v.

State Farm Fire & Cas. Co., 809 F. Supp. 2d 900, 905 (N.D. Ind. 2011) (citing Davis,

396 F.3d at 885; Woods v. City of Chicago, 234 F.3d 979, 990 (7th Cir. 2000)).

III. Rule 11 Sanctions

Federal Rule of Civil Procedure 11(b) provides that any attorney filing “a

pleading, written motion, or other paper . . . certifies that to the best of the person’s

knowledge, information, and belief, formed after an inquiry reasonable under the

circumstances” that:

(1) it is not being presented for any improper purpose, such as to harass,

cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by

existing law or by a nonfrivolous argument for extending, modifying, or

reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so

identified, will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or,

if specifically so identified, are reasonably based on belief or a lack of

information.

Additionally, “[i]f, after notice and a reasonable opportunity to respond, the court

determines that Rule 11(b) has been violated, the court may impose an appropriate

sanction on any attorney, law firm, or party that violated the rule or is responsible for

the violation.” Id. R. 11(c)(1). Sanctions can be monetary or “may include nonmonetary

directives; an order to pay a penalty into court; or, if imposed on motion and warranted

for effective deterrence, an order directing payment to the movant of part or all of the

reasonable attorney's fees and other expenses directly resulting from the violation.”

Id. R. 11(c)(4).

The Seventh Circuit has stated that “Rule 11 imposes a duty on attorneys to

ensure that any papers filed with the court are well-grounded in fact, legally tenable,

and not interposed for any improper purpose.” Brunt v. Serv. Emps. Int’l Union, 284

F.3d 715, 721 (7th Cir. 2002) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

392 (1990)). Additionally, “for Rule 11 purposes a frivolous argument is simply one

that is ‘baseless or made without a reasonable and competent inquiry.’” Berwick Grain

Co. v. Illinois Dep’t of Agric., 217 F.3d 502, 504 (7th Cir. 2000) (quoting Indep. Lift

Truck Builders Union v. NACCO Materials Handling Group, Inc., 202 F.3d 965, 969

(7th Cir. 2000)). Moreover, “[t]he very point of Rule 11 is to lend incentive for litigants

‘to stop, think and investigate more carefully before serving and filing papers.’” Id. at

505 (quoting Cooter & Gell, 496 U.S. at 398). While “[s]anctions will be imposed if

counsel files a complaint with improper motives or without adequate investigation[,]

. . . [e]ven ‘objectively frivolous filings support but do not compel an inference of

unreasonable investigation.’” Brunt, 284 F.3d at 721 (citing Mars Steel Corp. v. Cont’l

Bank, 880 F.2d 928, 932–33 (7th Cir. 1989)).

ANALYSIS

I. Breach of Contract

Count I alleges a cause of action for breach of contract, specifically the covenant

of good faith and fair dealing. (Doc. 1, Ex. B, p. 5). Essex attached a copy of his offer

letter to the Complaint. (See id., p. 13). Federal Rule of Civil Procedure 10(c) provides

that “written instruments” attached to a pleading become part of that pleading for all

purposes. Thus, when a plaintiff attaches to the complaint a document that qualifies

as a written instrument, and his complaint references and relies upon that document

in asserting her claim, the contents of that document become part of the complaint

and may be considered as such when the court decides a motion attacking the

sufficiency of the complaint. See Centers v. Centennial Mortg., Inc., 398 F.3d 930, 933

(7th Cir. 2005); N. Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163

F.3d 449, 452–53 (7th Cir. 1998).

Essex’s offer letter states that he is an at-will employee. (See Doc. 1, Ex. B, p.

13). “In Illinois, at-will employees have no enforceable contract rights against their

employers.” Emery v. Ne. Ill. Reg’l Commuter R.R. Corp., 2003 WL 22176077, *8 (N.D.

Ill. Sept. 18, 2003). An employment at-will relationship “gives the employer the right

to terminate the employment at any time. Therefore, it is incongruous to imply a

covenant [the implied covenant of good faith and fair dealing] which restricts that

right.” LaScola v. U.S. Sprint Commc’ns, 946 F.2d 559, 565 (7th Cir. 1991) (quoting

Harrison v. Sears, Roebuck & Co., 546 N.E.2d 248, 256 (Ill. App. Ct. 1989)). Moreover,

regardless of whether an employee is at-will, “Illinois courts . . . have consistently

recognized that no cause of action exists for an alleged breach of a covenant of good

faith and fair dealing between an employer and employee.” Ring v. R.J. Reynolds

Indus. Inc., 597 F. Supp. 1277, 1281 (N.D. Ill. 1984), aff’d, appeal dismissed sub nom.

Ring v. R.J. Reynolds Indus., Inc., 804 F.2d 143 (7th Cir. 1986). Consequently, under

Illinois law, Essex’s claim for breach of contract fails and must be dismissed

II. Negligence/Willful & Wanton Conduct

In Count III, Essex alleges theories of negligence and willful and wanton

conduct against Permobil for the Company’s failure to investigate and supply

information to the Illinois Department of Employment Services (“IDES”) related to

the reasons for his termination, and to “otherwise act as a reasonable person.” (Doc.

1, Ex. B, p. 7). Illinois courts do not recognize a cause of action for negligent

investigation in at-will employment relationships. See Jones v. Britt Airways, Inc.,

622 F. Supp. 389, 394 (N.D. Ill. 1985); see also Spann v. Springfield Clinic, 577 N.E.2d

488, 489 (Ill. 1991) (rejecting claim that at-will employee was entitled to redress where

she was discharged based on mistaken conclusions of a faulty investigation). In fact,

there are no Illinois cases suggesting that there is a cause of action for “negligent

investigation” even when there is a non-at-will employment relationship. Miller v.

Ford Motor Co., 152 F. Supp. 2d 1046, 1050 (N.D. Ill. 2001). Accordingly, this claim

also fails under Illinois law and must be dismissed.

III. Defamation

In Count II, Essex alleges that Permobil defamed him by falsely and

maliciously publishing to at least one third party that Essex was terminated due to

his attempt to sabotage Permobil by leaving one of its ovens in an explosive state.

(Doc. 1, Ex. B, p. 6). “To state a defamation claim, a plaintiff must present facts

showing that the defendant made a false statement about the plaintiff, that the

defendant made an unprivileged publication of that statement to a third party, and

that this publication caused damages.” Green v. Rogers, 917 N.E.2d 450, 459 (Ill.

2009). “A defamatory statement is a statement that harms a person’s reputation to

the extent it lowers the person in the eyes of the community or deters the community

from associating with her or him.” Id. Under Illinois law, the elements of a defamation

claim are the same whether the plaintiff alleges defamation per se or per quod. See

Doctor’s Data, Inc. v. Barrett, 170 F. Supp. 3d 1087, 1102 (N.D. Ill. 2016).

820 ILL. COMP. STAT. 405/1900.1 states that:

All letters, reports, or communications of any kind, either oral or written, from

an employer or his workers to each other, or to the Director or any of his agents,

representatives, or employees, made in connection with the administration of

this Act shall be absolutely privileged and shall not be the basis of any slander

or libel suit in any court of this State unless they are false in fact and malicious

in intent.

Even if a qualified privilege exists, the communication can still be defamatory and

actionable if the privilege has been abused. “In general terms, overcoming the

qualified privilege requires a showing that the defendant either intentionally

published the material while knowing the matter was false, or displayed a reckless

disregard as to the matter’s falseness.” Smock v. Nolan, 361 F.3d 367, 372 (7th Cir.

2004) (citing Kuwik v. Starmark Star Mktg. and Admin., Inc., 619 N.E.2d 129, 133

(1993)). To prove such abuse, a plaintiff must show “a direct intention to injure

another, or a reckless disregard of [the defamed party’s] rights and of the

consequences that may result to him.” Kuwik, 619 N.E.2d at 135. Importantly, a

defendant acts with reckless disregard when it makes a statement “despite a high

degree of awareness of probable falsity or entertaining serious doubts as to its truth.”

Id. at 133 (citation omitted). Reckless disregard of a plaintiff’s rights can also include

the failure to properly investigate the truth of the matter. Id. at 136. Although

whether a qualified privilege exists is a question of law for the court, the issue of

whether the privilege was abused is a question of fact for the jury. Id. at 133.

In its Motion for Summary Judgment, Permobil asserts that:

There is nothing whatsoever in the documents provided by Permobil to IDES

from which any reasonable jury could infer that Permobil’s reasons for

Plaintiff’s termination included that he “attempted to maliciously sabotage the

company by intentionally leaving ovens in an explosive state” or that Permobil

believed Plaintiff had committed a crime.

(Doc. 20, pp. 11–12) (citing Doc. 1, Ex. B, p. 6). In his Rule 56(d) Affidavit, Essex states

that the interrogatories he seeks from Permobil will require Permobil to state “each

reason why Plaintiff's employment at issue was terminated,” identify each person

(with contact information) “who participated in the decision and/or investigation to

terminate Plaintiff's employment,” and reveal what it has told others who have

inquired about Essex for job references. (Doc. 28, Ex. A, pp. 1–2). Essex also seeks

records seeking Permobil’s knowledge of his medical condition. (Id., p. 2). He also

asserts that he requires the deposition of Permobil’s affiant, Katie Raatz, to establish

“the lack of her personal knowledge and the lack of validity of many terms in her

affidavit.” (Id., p. 3). Permobil argues that while Essex believes this discovery is

relevant to the merits of his claim, “[Essex] does not explain how any of the

information is relevant to his response to Defendant’s Motion for Summary Judgment,

which is premised on Plaintiff’s failure to exhaust administrative remedies, the

statute of limitations, and the fact that several of his claims are not legally cognizable

under Illinois law.” (Doc. 29, p. 7).

The Court finds Permobil’s argument unpersuasive. First, Permobil’s argument

is incorrect as to the defamation claim. Its argument for summary judgment as to the

defamation claim is entirely premised on the facts Permobil presents, not on purely

legal arguments. Therefore, its argument that “Plaintiff also confuses the concepts of

discovery that he needs to respond to the motion for summary judgment as opposed

to discovery he believes he needs to prevail on the merits of his claims” is

unpersuasive, as it is a distinction without a difference as to the defamation count.

Second, the Court is satisfied that Essex has met his burden under Rule 56(d).

As a general matter, “[s]ummary judgment should not be entered ‘until the party

opposing the motion has had a fair opportunity to conduct such discovery as may be

necessary to meet the factual basis for the motion.’” Chalimoniuk v. Interstate Brands

Corp., 172 F.Supp.2d 1055, 1057–58 (S.D. Ind. 2001) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 326 (1986)). That is, “when issues material to the outcome of the matter

are in question, the full benefit of discovery is preferable.” Chalimoniuk, 172 F. Supp.

2d at 1059. Here, Essex seeks facts material to the truth of Permobil’s publications,

and/or whether they abused their privilege, and has stated the discovery he seeks

necessary to discover these facts. This is sufficient under Rule 56(d). See Snyder v.

Livingston, 2012 WL 32984, at *2 (N.D. Ind. Jan. 5, 2012) (finding that Rule 56(d) is

was satisfied where plaintiff expected to obtain evidence of “communications” by

defendants that indicate, among other things, that defendants (1) viewed her as

disabled from a medical or psychological condition that caused her to be “mentally

unstable,” and (2) repeated false, damaging statements about her mental status and

her ability to do her job). Accordingly, Essex’s defamation claim survives Permobils’s

Motion for Summary Judgment.

IV. Discrimination

Count IV alleges that Defendant discriminated against Plaintiff based on his

“medical disability” in violation of the Illinois Human Rights Act. (Doc. 1, Ex. B, pp.

8–10). After evaluating both parties’ arguments, the Court determined that the key

issue to be resolved at this stage is whether Essex timely filed his discrimination claim

with the Illinois Department of Human Rights (“IDHR”). Accordingly, this Court

ordered the parties to provide supplemental briefing on that issue specifically. (See

Doc. 35). Plaintiff argues that, because he was as a pro se filer at the relevant time,

he satisfied the “charge” requirement by timely filing a Complainant Information

Sheet (“CIS”) with the IDHR. (See Doc. 36). Defendant argues that Plaintiff filed this

action before receiving the final report from the IDHR, thus failing to exhaust

administrative remedies, and that his charge was not timely perfected. (See Doc. 37).

As a general matter, intake forms and questionnaires are insufficient to satisfy

the 300-day charge-filing requirement. See Novitsky v. American Consulting Eng’rs,

L.L.C., 196 F.3d 699, 702 (7th Cir. 1999) (“Under the statute, however, it is the charge

rather than the questionnaire that matters. Only the charge is sent to the employer,

and therefore only the charge can affect the process of conciliation.” (citing 42 U.S.C.

§ 2000e–5(b); Perkins v. Silverstein, 939 F.2d 463, 470 (7th Cir. 1991))); see also Early

v. Bankers Life and Cas. Co., 959 F.2d 75, 80 (7th Cir. 1992) (“To treat Intake

Questionnaires willy-nilly as charges would be to dispense with the requirement of

notification of the prospective defendant, since that is a requirement only of the

charge and not of the questionnaire.”). However, the Supreme Court softened this

requirement in Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), holding that

an intake form may be construed as a “charge” where the intake form contains

sufficient detail and can reasonably be construed as a request by the employee for

agency action. Id. at 405. “Without such a request the CIS is just a pre-charge

screening form, which does not prompt IDHR to notify the employer, launch an

investigation, or sponsor mediation between the parties—filing a charge form does.”

Carlson v. Christian Bros. Servs., 840 F.3d 466, 467 (7th Cir. 2016). The regulation

that informed the Holowecki decision requires a “charge” to include a “clear concise

statement of the facts . . . constituting the alleged unlawful employment practices.”

29 C.F.R. § 1626.8(a)(3).

First, the CIS attached to Essex’s July 2, 2024 intake questionnaire provides

the relevant events and dates associated with the alleged discriminatory conduct by

Defendant. (See Doc. 36, Ex. D). In addition to providing the name and address of his

employer, Essex filled out the sections requiring him to briefly state the date(s) of the

alleged discriminatory conduct as well as a brief summary of the events. (Id.). This

satisfies the requirements set forth by the regulations and Holowecki. Moreover, the

record shows that the IDHR determined that the July 2, 2024 CIS did satisfy the

“charge requirements.” (Doc. 36, Ex. A p. 30). In fact, on March 27, 2025, the IDHR

emailed Defendant’s counsel to expressly inform Defendant that the IDHR: “case

records show that complainant filed the above identified charge on July 2, 2024. The

filing substantially complied with the requirements of a charge, and IDHR docketed

the filing under control No. #25M070221.” (Id.). Both cases cited by Defendant in

arguing that this was not a formal charge, Carlson, 840 F.3d at 468, and Amen Ra v.

BNSF Ry. Co., 795 F. App’x 463, 465 (7th Cir. 2020), rely, in part, on the fact that the

CIS told Plaintiff that “THIS IS NOT A CHARGE” to conclude that the plaintiff in

each case did not meet the charge requirement. In this case, however, despite that

language appearing on Plaintiff’s CIS, the IDHR clearly believed that Plaintiff’s CIS

met the requirements of a charge, nonetheless. Therefore, the cases on which

Defendant relies are unpersuasive. Moreover, in both Carlson and Amen Ra, the

Seventh Circuit relied on the fact that the respective plaintiffs failed to request

remedial action. The Court in Holowecki concluded that the plaintiff had requested

remedial action when she “gave consent for the agency to disclose the affidavit in a

‘formal proceeding’” and “checked a box on the Intake Questionnaire giving consent

for the agency to disclose her identity to the employer.” Id. at 406 (internal citations

omitted). Here, Plaintiff checked the box permitting the same. (Doc. 36. Ex. D).

Therefore, this Court holds that Plaintiff filed a timely charge based on the rationale

in Holowecki and the IDHR’s independent assessment.

Generally, the complainant first must file a charge with the IDHR within 300

days of the alleged civil rights violation. See 775 ILL. COMP. STAT. 5/7A–102(A). Ten

days after the filing of a charge, the IDHR notifies the complainant of his right, which

must be exercised within 60 days of receiving the notice to “opt out” of its investigation

of the charge and directly commence a civil action in court. Id. § 5/7A–102(B). (“The

Department shall, within 10 days of the date on which the charge was filed, serve a

copy of the charge on the respondent and provide all parties with a notice of the

complainant’s right to opt out of the investigation within 60 days . . . .”); id. § 5/7A–

102(C-1) (“At any time within 60 days after receipt of notice of the right to opt out, a

complainant may submit a written request seeking notice from the Director indicating

that the complainant has opted out of the investigation and may commence a civil

action in the appropriate circuit court or other appropriate court of competent

jurisdiction.”). If the complainant does not timely opt out of IDHR’s investigation, he

may file a civil suit once the IDHR investigates the charge and issues a report, see id.

§ 5/7A–102(D), or in the event that IDHR fails to issue a report within a year of the

charge being filed, see id. § 5/7A–102(G)(2). Failure to comply with the IHRA’s

exhaustion requirements warrants dismissal of an IHRA claim. See Garcia v. Village

of Mount Prospect, 360 F.3d 630, 640 (7th Cir. 2004).

Here, there is no dispute that Plaintiff commenced his civil action before he

received the final report of the IDHR and before 365 days had elapsed after he filed

his charge; moreover, Essex also failed to submit a written request to opt out.

Typically, the Court would determine that because Plaintiff filed a civil action just

eight days after he submitted a CIS to the IDHR, he did not exhaust his

administrative remedies as required to commence a civil action for discrimination

under the IHRA. However, this is a unique set of circumstances requiring the use of

judicial estoppel. A review of the record demonstrates that the IDHR dismissed

Plaintiff’s charge precisely because of the filing of this suit. (See Doc. 33, Ex. A).

Defendant does not challenge Plaintiff’s contention that it notified the IDHR of the

commencement of this suit. (“[T]he proper remedy for a failure to exhaust

administrative remedies is to dismiss the suit without prejudice, thereby leaving the

plaintiff free to refile his suit when and if he exhausts all of his administrative

remedies or drops the unexhausted claims.”). Cora v. Tootsie Roll Indus., LLC, 2024

WL 1363537, at *10 (N.D. Ill. 2024) (citing Greene v. Meese, 875 F.2d 639, 643 (7th

Cir. 1989)). However, as Plaintiff’s access to administrative remedies was impeded by

Defendant, the purpose of the exhaustion requirement would be frustrated without

the use of judicial estoppel.

“Judicial estoppel generally prevents a party from prevailing in one phase of a

case on an argument and then relying on a contradictory argument to prevail in

another phase.” Walton v. Bayer Corp., 643 F.3d 994, 1002–03 (7th Cir. 2011). Courts

typically examine three factors in determining whether judicial estoppel applies: (1)

whether the party’s later position was “clearly inconsistent” with its earlier position;

(2) whether the party against whom estoppel is asserted in a later proceeding has

succeeded in persuading the court in the earlier proceeding; and (3) whether the party

“seeking to assert an inconsistent position would derive an unfair advantage or

impose an unfair detriment on the opposing party if not estopped.” In re Airadigm

Commc’ns, Inc., 616 F.3d 642, 661 (7th Cir. 2010). Because the purpose of judicial

estoppel is to protect the integrity of the judicial process, courts have discretion in

deciding whether to invoke the doctrine. See New Hampshire v. Maine, 532 U.S. 750,

751 (2001). All three elements are met here. First, Defendant has asserted that

Plaintiff cannot proceed with his claim because he has not exhausted an IDHR claim

(Doc. 29 pp. 2–3; Doc. 19, p. 2). However, Defendant has not challenged Plaintiff’s

contention that it represented to the IDHR that this case was filed; that implies that

the underlying representation was that Plaintiff was seeking a remedy in this case

rather than seeking a remedy through the IDHR. Now, Defendant represents that

Plaintiff is to seek a remedy through the IDHR, an inconsistent position. Second, the

IDHR relied on Defendant’s contention that Plaintiff was seeking redress in this Court

when dismissing his claim. Third, Defendant’s earlier position allowed it to dismiss

Plaintiff’s IDHR claim. Now, it seeks to deprive Plaintiff of the right to proceed in any

either forum. The Court determines that Defendant should be estopped from arguing

that Plaintiff failed to exhaust administrative remedies. Therefore, Defendant’s

arguments as to why this claim should be dismissed at this stage fail. The Court will

permit Count IV to proceed into discovery.

V. Sanctions

Rule 11 is clear that an attorney filing a pleading must ensure that “the factual

contentions have evidentiary support or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for further investigation or

discovery.” FED. R. CIV. P. 11(b)(3). Once again, “a frivolous argument is simply one

that is ‘baseless or made without a reasonable and competent inquiry.’” Berwick Grain

Co., 217 F.3d at 504 (quoting Indep. Lift Truck Builders Union, 202 F.3d at 969).

After evaluating each party’s briefs and oral arguments, the Court declines to

impose Rule 11 sanctions. The Court determines that neither party’s arguments rise

to the high standard set forth by Rule 11 and Seventh Circuit caselaw. Specifically,

the Court notes that this case is still at an early stage, before much of the factual

detail necessary for summary judgment or trial has yet to be discovered. Accordingly,

sanctions will not be imposed on either party.

CONCLUSION

For the reasons discussed above, Defendant Permobil, Inc.’s Motion for

Summary Judgment (Doc. 19) is GRANTED in part and DENIED in part.

Permobil’s Motion is GRANTED with respect to Counts I and III, which are

DISMISSED with prejudice. Permobil’s Motion is DENIED without prejudice

with respect to Counts II and IV, which shall proceed into discovery. Accordingly,

Plaintiff Joseph Essex’s Motion to Continue Motion for Summary Judgment (Doc. 28)

is GRANTED in part and DENIED in part. Essex’s Motion is GRANTED with

respect to Counts II and IV but DENIED with respect to Counts I and III. Essex is

entitled to discovery on Counts II and IV, but not Counts I and III. After evaluating

each party’s briefs and oral arguments, the Court declines to impose Rule 11

sanctions. Accordingly, Essex’s Motion for Sanctions (Doc. 24) is DENIED. Finally,

the Court will set a Rule 16 Scheduling Conference by separate order.

IT IS SO ORDERED.

DATED: September 26, 2025

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge