LuzMaria Arroyo v. Volvo Group North America, LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3618
LUZMARIA ARROYO,
Plaintiff-Appellant,
v.
VOLVO GROUP NORTH AMERICA, LLC,
d/b/a VOLVO PARTS NORTH AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12-cv-6859 — Robert M. Dow, Jr., Judge.
____________________
ARGUED MAY 26, 2015 — DECIDED OCTOBER 6, 2015
____________________
Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. LuzMaria Arroyo is an Army Re-
servist and veteran who suffers from post-traumatic stress
disorder (“PTSD”). She worked for Volvo Group North
America, LLC, d/b/a Volvo Parts North America (“Volvo”)
from June 2005 until she was fired in November 2011. Volvo
says it fired her for violations of its attendance policy, but
2 No. 14-3618
Arroyo claims the real reason was discrimination on the ba-
sis of her military service and her disability.
Arroyo sued Volvo in federal district court for discrimi-
nation, retaliation, and failure to provide reasonable accom-
modations in violation the Uniformed Services Employment
and Reemployment Rights Act, 38 U.S.C. § 4301 et seq.
(“USERRA”), the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq. (“ADA”), the Rehabilitation Act of 1973, 29
U.S.C. § 791 et seq., and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. Arroyo also brought a state-law
claim for intentional infliction of emotional distress. The dis-
trict court granted Volvo’s motion for summary judgment on
all counts and awarded Volvo, as the prevailing party, its
reasonable costs.
We now reverse the district court’s order with respect to
Arroyo’s discrimination claims under USERRA and the ADA
because Arroyo has raised genuine, material factual issues
that should be resolved at trial. We also vacate the district
court’s award of Volvo’s costs. In all other respects, however,
we affirm the judgment of the district court.
I. BACKGROUND
Because this is an appeal from summary judgment, we
summarize the facts in the light most favorable to the non-
moving party and draw all reasonable inferences in her fa-
vor, without necessarily vouching for their accuracy. Malin v.
Hospira, Inc., 762 F.3d 552, 554 (7th Cir. 2014). LuzMaria Ar-
royo worked as a material handler in Volvo’s Parts Distribu-
tion Center in Joliet, Illinois, from June 13, 2005, to Novem-
ber 8, 2011. Her main job was to retrieve vehicle parts with a
No. 14-3618 3
forklift and pack them for shipment. From 2009 on, she
worked the second shift from 4:30 p.m. to 12:30 a.m.
A. Arroyo’s Military Leave; Management’s Reaction
Volvo hired Arroyo with knowledge that she was a
member of the U.S. Army Reserve. She was the only active
reservist at the Joliet facility. During her employment, she
deployed twice to Iraq and Kuwait: from April 2006 to May
2007 and from April 2009 to August 2010. (She had also de-
ployed another time before she came to work at Volvo.) Ad-
ditionally, Arroyo took regular leave for weekend drills,
training, and other military activities. In all, she received
more than 900 days of military leave during her six-and-a-
half years at Volvo. The company allowed her to modify her
work schedule to take leave, and she was never directly dis-
ciplined for doing so.
But Arroyo points to evidence, including numerous in-
ternal emails obtained in discovery, suggesting that her su-
pervisors were frustrated from the beginning about her
schedule and absences. In the fall of 2005, Arroyo traveled
several times to Fort Benning, Georgia, where her unit was
based, for military drills. In addition to the days of actual
training, Arroyo also took off time beforehand and afterward
to drive to and from Georgia. That apparently frustrated ma-
terial handling supervisor Michael Temko, who questioned
her about why she needed the additional time. Temko later
emailed Keith Schroeder, the director of distribution, to ask,
“[A]re we required to give her the day before and day after
for travel?” Schroeder forwarded the inquiry to Bruce Olin,
the Director of Labor Relations, adding:
I find myself with a dilemma if I were to discipline
a person for taking too much time off for military
4 No. 14-3618
reserve duty …. I certainly give her credit for serv-
ing our country but of course I am also responsible
for our business needs.
According to Arroyo’s affidavit, Schroeder later told her
in a meeting, with Temko present, that her military duties
were becoming an undue hardship for Volvo and that she
needed to transfer to a local unit. Corroborating this account,
an email several weeks later from HR Manager Cecilia Jarvis
to Schroeder referred to “the undue hardship it [i.e., Arroyo’s
absences] is causing to our operation.”
On October 28, Olin responded to Schroeder’s earlier
email. Olin explained:
First, we do not have to grant time off for [Ar-
royo‘s] travel time. Her legal obligation is 2 weeks
per year, which we do give off, and 1 weekend per
month. The drills she attended were most likely ex-
tra training, which we do not have to grant the
time. We do not have to give extra time for her
travel to and from her weekend duty. She does
have the option to transfer to a closer unit, we can-
not make her transfer.
Schroeder forwarded the email to Temko, predicting “Luz-
Maria will challenge us.” Following Olin’s advice, Temko
told Arroyo “that she is not entitled to a travel day …. [A]ny
day that she takes for travel … will fall under our attendance
policy.” In other words, she would be penalized.
As it turned out, Olin’s advice was wrong. After doing
some research, Jarvis clarified that the law “now treats vol-
untary orders and involuntary orders [what Olin called ‘ex-
tra training’] the same.” And the Employer Support for the
Guard and Reserve (“ESGR”), which got involved at Ar-
No. 14-3618 5
royo’s request, explained that she was entitled to “travel time
plus an eight hour rest period following her drill before hav-
ing to report to work” (as Jarvis reported to Temko at the
end of December).
Arroyo deployed to Baghdad from April 2006 to May
2007. In April 2007, Temko complained to Olin that Arroyo
had contacted him only once since she deployed. “For our
planning/scheduling purposes,” Temko explained, “it would
be beneficial for us to know her status.” He asked whether
he could contact her unit. Olin responded: “Unfortunately,
there isn’t a lot we can do…. Per the law we have to wait for
her. Sorry it isn’t what you wanted to hear.”
When Arroyo returned to work, according to her affida-
vit, Temko again suggested that she seriously consider trans-
ferring to a local unit, and Schroeder called her into his office
and made it “very clear” that her job depended on her doing
so. Therefore, in March 2008, she changed her duty station
(reluctantly, she says) to Darien, Illinois.
Arroyo received orders to go on active-duty training with
her new unit from April to October 2008. When she re-
turned, Arroyo reports, Temko and Schroeder expressed dis-
satisfaction with the fact that she had been away for so long.
The next month, Arroyo was away again for training from
November 3 to 10. She had the next day off for travel, but
then did not show up for three more days of work. In an in-
ternal email, Temko discussed disciplining, suspending, or
possibly firing her for her absences. But when Schroeder
called Arroyo, he received a copy of new orders extending
her training from November 12 to 26. Although Schroeder
had “issues with her lack of communications,” as he ex-
6 No. 14-3618
plained in an email, “we likely have no recourse due to her
military service.”
From mid-April 2009 to mid-August 2010, Arroyo de-
ployed overseas again in support of Operation Iraqi Free-
dom. Although USERRA gave her 90 days post-deployment
to notify Volvo of her plans, see 38 U.S.C. § 4312(e)(1)(D),
Schroeder opined in an email that she “should have returned
to work on August 15, 2010.” Management decided to offer
her a voluntary severance package and expressed hope that
she would accept it. They presented it to her on the first day
after Arroyo returned to work, September 28, 2010. But she
declined the package.
B. Arroyo’s PTSD and Requested Accommodations
After returning from her second deployment, Arroyo re-
ceived treatment for symptoms of PTSD and was formally
diagnosed in January 2011. She checked herself into the
emergency room on December 23, 2010; the next day she
emailed Schroeder to tell him what was happening and that
the doctor ordered her not to work through the 30th. In an
internal email, Schroeder considered disciplining her, but
she later provided a doctor’s note and discharge paperwork
excusing the absences.
Around the same time, Arroyo provided documentation
about her rights to one of her supervisors, Sherrie Jankow-
ski. Jankowski then wrote to Schroeder on December 2, 2010,
that “[Arroyo] is really becoming a pain with all this.” Later
that month, after Arroyo checked into the ER, Jankowski re-
ported in an email to Schroeder (possibly in jest) “several
rumors for [Arroyo’s] not being here,” including that “[s]he’s
on vacation in Hawaii.”
No. 14-3618 7
Arroyo took FMLA and disability leave from December
23, 2010, through March 22, 2011. When she returned, she
began therapy for her PTSD. Volvo allowed her to leave her
shift early or arrive late once a week to attend therapy ses-
sions from April through October 2011. Arroyo also request-
ed a number of other accommodations. Volvo granted many
of them, including: a quiet place to meditate before work
and during breaks; a mentor; time off for counseling; and
breaks and support during panic or anxiety attacks. Other
requested accommodations—a more flexible schedule, use of
earplugs or headphones in both ears, day-to-day guidance
and feedback, putting all communications in writing, and
disability awareness training—were under review.
C. Volvo’s Discipline and Termination of Arroyo
Material handlers at the Joliet facility were subject to a lo-
cal attendance policy, administered by Temko and Schroed-
er. Employees receive whole or fractional “occurrences” for
unexcused absences or tardiness. Each time there is an oc-
currence, Volvo looks back at the employee’s history. If the
employee compiles two occurrences within four weeks or
five occurrences within six months, the company takes “cor-
rective action.” There are four progressive disciplinary steps:
verbal warning, written warning, three-day suspension, and
termination. If an employee goes six months without an oc-
currence, her disciplinary “level” decreases a step. Months
spent on military or most other types of leave do not count
toward the six-month clock.
In 2009, Arroyo received a verbal warning. In October
2010, after Arroyo returned from her second deployment,
she received two half-occurrences for being 22 and 20
minutes late to her work station, plus one full occurrence for
8 No. 14-3618
missing a day of work. Therefore, on October 29, she re-
ceived a verbal warning. That same day, she punched in one
minute late, for which she received another half-occurrence.
This triggered a formal written warning—the second disci-
plinary step. But Schroeder retracted that warning because
Arroyo said she was unaware that there was no longer a
two-minute grace period.
From the fall of 2010 to the fall of 2011, Arroyo continued
to receive occurrences for tardiness, often of only a short du-
ration. She was cited four times for being 1 minute late, once
for being 2 minutes late, twice for being 5 minutes late, and
once for being 10 minutes late. On August 31, 2011, Schroed-
er issued Arroyo a written warning (step two) for the period
preceding August 19 and a suspension (step three) for the
period up to August 20.
The next month, Arroyo filed an internal complaint re-
questing an investigation of Schroeder for disability-based
harassment. Volvo assigned an investigator to the case, but
Arroyo refused to answer any of her questions. One of Vol-
vo’s upper managers emailed Schroeder to reassure him,
“[P]lease do not be concerned about the investigation.” Ar-
royo also filed a discrimination charge with the EEOC on
September 13, 2011.
On October 10, 2011, Arroyo punched in one minute after
her shift started. After another incident on October 31,
Schroeder met with Arroyo to explain that her use of the
meditation/relaxation room before work did not excuse her
arriving late to her work station.
Arroyo started work late again on November 2 and 4 (the
record does not reflect how late), so Schroeder issued both a
No. 14-3618 9
verbal and a written warning. He and Temko then audited
her attendance record and discovered that she had incurred
five occurrences within six months. That brought Arroyo to
the fourth step in the disciplinary process: termination. Vol-
vo fired her.
Arroyo sued in the Northern District of Illinois. After dis-
covery, Volvo moved for summary judgment, and the district
court granted its motion in full. Arroyo v. Volvo Grp. N. Am.,
LLC, No. 12-cv-6859, 2014 U.S. Dist. LEXIS 138696 (N.D. Ill.
Sept. 30, 2014) (“Arroyo I”). Arroyo filed a Rule 59 motion to
reconsider, which was denied. Arroyo timely appealed.
II. ANALYSIS
We review a district court’s grant of summary judgment
de novo. Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 938 (7th
Cir. 2003). To obtain summary judgment, the movant must
show that there is no genuine dispute as to any material fact
and that he is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).
A. USERRA Discrimination Claim
USERRA prohibits employment discrimination against
members of the armed services. It provides:
A person who is a member of … a uniformed ser-
vice shall not be denied … retention in employ-
ment, promotion, or any benefit of employment by
an employer on the basis of that membership ….
38 U.S.C. § 4311(a). The statute provides further that such
discrimination exists where the employee’s service member-
ship was “a motivating factor” in the employer’s adverse ac-
tion “unless the employer can prove that the action would
have been taken in the absence of such membership.” Id.10 No. 14-3618
§ 4311(c)(1). This provision creates a two-step burden-
shifting scheme: (1) once a plaintiff makes out a prima facie
case by showing that his membership was “a motivating fac-
tor,” (2) the burden shifts to the employer to prove that it
would have taken the same action regardless. Crews v. City of
Mt. Vernon, 567 F.3d 860, 864 (7th Cir. 2009).
To meet the “motivating factor” standard, a plaintiff does
not necessarily need a direct admission from the employer.
She may rely instead on circumstantial evidence that creates
a “convincing mosaic” from which a reasonable jury could
infer discriminatory motive. See Adams, 324 F.3d at 939 (dis-
cussing the “convincing mosaic” route to proving discrimi-
nation); Troupe v. May Dept. Stores Co., 20 F.3d 734, 736–37
(7th Cir. 1994) (same). Such evidence could include, for ex-
ample, suspicious timing, statements, or behavior. In the ag-
gregate, these individual pieces might be enough to prove—
or at least to create a genuine issue about—the employer’s ill
motive. See Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 643–44
(7th Cir. 2013).
Obviously, Arroyo suffered an adverse action—she lost
her job. The question is whether her military service was a
motivating factor in Volvo’s decision to fire her. The district
court did not think so. It found that the emails merely
“demonstrate an awareness of Plaintiff’s rights as an active
service member, as well as discussions about the company’s
rights and obligations.” Arroyo I at *35. Volvo was, in other
words, simply trying to comply with the law.
We think this assessment underestimates the strength of
the emails as support for Arroyo’s case. Granted, Arroyo did
a poor job of presenting her case to the district court. Her
statement of undisputed facts under Local Rule 56.1 made
No. 14-3618 11
only general, broad-brush statements about Volvo’s discrim-
ination, accompanied by bulk citations to the emails, affida-
vits, and other materials. As the district court noted, she
“[did] not cite to any specific emails,” and it is “not the
Court’s job to sift through the record to find the evidence.”
Arroyo I at *34. Nevertheless, Arroyo did include the emails
and other materials in the record, so we are free to consider
them. 1 See Fed. R. Civ. P. 56(c)(3).
Taking all the evidence as a whole, a reasonable jury
could infer that Volvo was motivated, at least in part, by an-
ti-military animus toward Arroyo. There is evidence that
from the beginning of her employment, her supervisors dis-
liked the burden her frequent military leave placed on the
company. They repeatedly discussed disciplining her and
denied her rights, such as travel time, to which she was enti-
tled. Some of the emails come close to a direct admission of
management’s frustration. For example, Schroeder discussed
his “dilemma” of “disciplin[ing] a person for taking too
much time off for military reserve duty.” He later reportedly
told Arroyo that accommodating her orders placed an undue
hardship on Volvo; Jarvis repeated the same sentiment.
Temko complained about Arroyo’s lack of communication
while she was deployed in Iraq. A jury could understandably
detect in these communications animus toward Arroyo’s mil-
itary service.
1 Arroyo also recounted the emails, quoting many of them at length, in
her Third Amended Complaint. Finally, she brought them to the district
court’s attention when she moved for reconsideration of the summary
judgment decision.
12 No. 14-3618
Animus or frustration alone, however, does not support a
claim of discrimination. It must have been linked, as a moti-
vating factor, to an adverse employment action. 38 U.S.C.
§ 4311(c)(1); Adams, 324 F.3d at 939. Again, we think a jury
could reasonably conclude that there was such a link here.
The emails expressing management’s frustration often transi-
tioned directly to a discussion about disciplining Arroyo un-
der the local attendance policy for her tardiness and absenc-
es. In the end, she was not disciplined directly for her mili-
tary leave. But she was disciplined for other instances of tar-
diness, often of a relatively minor nature—one or only a few
minutes late. A jury could infer from the evidence that Ar-
royo’s punishment for such infractions was actually motivat-
ed by her supervisors’ long-standing frustration about her
frequent absences.
These facts distinguish Arroyo’s case from cases where
the employer demonstrated frustration but took no material-
ly adverse action, e.g., Breneisen v. Motorola, Inc., 512 F.3d 972,
981–82 (7th Cir. 2008), where the employer’s negative com-
ments were isolated and unconnected to the termination de-
cision, e.g., Teruggi v. CIT Grp./Capital Fin., Inc., 709 F.3d 654,
656–57 (7th Cir. 2013), or where there were merely “[s]tray
remarks by non-decisionmakers or by decisionmakers unre-
lated to the decision process,” Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992). In contrast to
these cases, Arroyo suffered adverse action (termination),
the emails were arguably connected to the termination, and
the complaining Volvo personnel were supervisors and deci-
sion-makers with power over her job.
It is true that Volvo granted Arroyo a considerable
amount of military leave during her tenure at the company
No. 14-3618 13
and did not directly discipline her for those particular ab-
sences. That fact will likely support Volvo’s arguments be-
fore a jury. But it does not negate an inference of discrimina-
tory motive on summary judgment. See Maxfield v. Cintas
Corp. No. 2, 427 F.3d 544, 554 (8th Cir. 2005). Here, a jury
could reasonably conclude that Volvo “was looking for a
reason to discharge [Arroyo] because of the large number of
absences from work due to [her] reserve status.” Id. (revers-
ing summary judgment on USERRA claims).
We conclude, then, that Arroyo presented sufficient evi-
dence to make a prima facie case of USERRA discrimination.
The burden therefore shifted to Volvo to show that it would
have fired her even in the absence of her military service. 38
U.S.C. § 4311(c)(1). Volvo did not carry that burden; genuine
issues of fact remain on this critical issue.
The district court emphasized that “Volvo’s decision to
hold employees to a strict start time is within its discretion.”
Arroyo I at *48–49. But that is the wrong standard. Even if
Arroyo’s tardiness was a “fireable offense … that is only the
beginning of the analysis.” Velazquez-Garcia v. Horizon Lines of
Puerto Rico, Inc., 473 F.3d 11, 20 (1st Cir. 2007) (reversing
summary judgment on USERRA claims). Instead, Volvo
must prove that it would have fired Arroyo regardless of her
military service. Id.Volvo points out that it disciplined five other employees,
and not just Arroyo, for being between one and ten minutes
late to work. But Volvo only contends that one of them, Vic-
tor Jackson, was disciplined and fired. Arroyo counters that
Volvo did not enforce its policy so rigorously against other
employees. Volvo has not conclusively established that it
necessarily would have terminated Arroyo for her tardiness.
14 No. 14-3618
There is sufficient doubt on this issue to make it a jury ques-
tion.
For these reasons, Volvo is not entitled to summary
judgment on Arroyo’s discrimination claim under USERRA.
B. ADA Discrimination Claim
The ADA prohibits employers from discriminating
against their employees “on the basis of disability.” 42 U.S.C.
§ 12112(a). To establish a violation of the ADA, an employee
must show “1) that she is disabled; 2) that she is otherwise
qualified to perform the essential functions of the job with or
without reasonable accommodation; and 3) that the employ-
er took an adverse job action against her because of her disa-
bility….” Winsley v. Cook Cty., 563 F.3d 598, 603 (7th Cir.
2009). An employee can prove discrimination either “direct-
ly” through admissions or circumstantial evidence, Troupe,
20 F.3d at 736–37, or “indirectly” through the familiar bur-
den-shifting scheme of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Arroyo proceeds under the direct route. 2
The ADA claim presents a closer call than the USERRA
claim for two reasons. First, the ADA standard is more exact-
ing for Arroyo: she must prove that her PTSD was a “but
for” cause of her discipline and termination. Serwatka v.
Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010). 3
2 To the extent Arroyo also attempts to satisfy the indirect method, her
claim fails, as the district court correctly concluded. Arroyo I at *36–45.
3 It is an open question whether the 2008 amendments to the ADA,
which changed the operative causation language from “because of” to
“on the basis of,” altered the substantive standard. See Serwatka, 591 F.3d
at 962 n.1; Silk v. Bd. of Trustees, 795 F.3d 698, *12–14 (7th Cir. 2015). The
(continued…)
No. 14-3618 15
Second, there is less evidence of animus toward Arroyo’s
PTSD than there is concerning her military service.
Nevertheless, we think the evidence is sufficient to con-
vince a reasonable jury that Arroyo was the victim of disabil-
ity discrimination. Internal emails indicate that Volvo man-
agement considered disciplining Arroyo for her absences
while she was in the hospital in December 2010, even though
she emailed Schroeder to tell him about her condition. An-
other one of her supervisors, Sherrie Jankowski, joked about
Arroyo’s absence, writing that she heard rumors Arroyo was
actually vacationing in Hawaii. A few weeks earlier, Jankow-
ski had complained to Schroeder that Arroyo was “really be-
coming a pain with all this.” This is enough for a jury to find
discriminatory motive.
There is also enough to support a finding of “but for”
causation. Management’s expressions of frustration about
Arroyo’s military absences goes back to the beginning of her
employment in 2005, but it was not until she returned from
her second deployment in the fall of 2010 that Volvo began
implementing the series of disciplinary steps that led to her
termination. That timing coincides with the onset and diag-
nosis of Arroyo’s PTSD. This kind of suspicious timing can
support an inference of discrimination. Hobgood, 731 F.3d at
643–44.
We therefore conclude that summary judgment was also
improper on Arroyo’s ADA discrimination claim.
(…continued)
issue was not briefed by the parties, and the answer would not affect the
outcome here in any case, so we need not resolve this issue.
16 No. 14-3618
C. Remaining Claims
On Arroyo’s remaining claims, however, we agree with
the district court’s ruling and have little to add to its analy-
sis. To recap briefly: Arroyo’s retaliation claim fails because
the statutorily protected activity in which she engaged—her
internal complaint, EEOC complaint, and accommodation
requests in 2011—all came after Volvo began disciplining her
for her tardiness. Arroyo has not offered sufficient evidence
of a causal link between her protected activity and the ad-
verse employment actions.
Arroyo’s failure-to-accommodate claim fails because the
undisputed evidence shows that Volvo made numerous ac-
commodations so that she could fulfill her military duties
and cope with her PTSD (even if, as she claims, the company
did so grudgingly). Volvo was also in the process of consid-
ering other requests and investigating Arroyo’s complaints
through an interactive process. But Arroyo was less than co-
operative; for example, she refused to meet with the HR rep-
resentative assigned to her case. On these facts, we perceive
no genuine issue of material fact regarding the adequacy of
Volvo’s accommodations.
Finally, Volvo’s actions, while perhaps discriminatory
(that is for a jury to decide), did not rise to the level of “ex-
treme and outrageous” under Illinois law. See Welsh v. Com-
monwealth Edison Co., 713 N.E.2d 679, 684 (Ill. App. Ct. 1999)
(“[I]n the absence of conduct calculated to coerce an employ-
ee to do something illegal, courts have generally declined to
find an employer's retaliatory conduct sufficiently extreme
and outrageous as to give rise to an action for intentional in-
fliction of emotional distress.”). Arroyo’s claim for intention-
al infliction of emotional distress therefore fails.
No. 14-3618 17
D. Award of Costs
The district court awarded Volvo its reasonable costs,
amounting to $9,476.30, as the prevailing party under Fed. R.
Civ. P. 54(d)(1). In light of our decision, that award was at the
very least premature and should be vacated. The district
court may revisit this issue, however, after a final resolution
of the case.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment on Arroyo’s claims of
discrimination under USERRA and the ADA; we VACATE
the district court’s award of Volvo’s costs; and we AFFIRM in
all other respects. This case is REMANDED for further pro-
ceedings consistent with this opinion.