On May 5, 2023, the U.S. District Court for the Northern District of Illinois granted a defendant-employer’s motion for summary judgment on whistleblower retaliation claims, holding that the company demonstrated that it would have terminated Plaintiff’s employment even in the absence of any alleged protected activity due to his refusal to cooperate in the company’s efforts to confirm that he was fit to return to work after taking a short-term disability leave.  Del Signore v. Nokia of America Corporation, No. 20 C 4019.

Background

Plaintiff, a former Lab Infrastructure Engineer at the company, which makes equipment used by large telecommunications providers, allegedly noticed a flaw in the performance of a wireless network which resulted in an excess of roaming operations.  In the fall of 2017, Plaintiff proposed to create an improved smartphone measurement system to address the issue.  Plaintiff alleged that he was initially told his idea was lucrative but subsequently received feedback that the project’s business plan needed more work, leading Plaintiff to believe the project was cancelled.  Plaintiff then began short-term disability leave in May 2018 for “work-related stress.”  While on leave, Plaintiff filed two internal ethics complaints, alleging that the delay or cancellation of the project left him suspicious that the company may have been colluding with the wireless carrier to benefit from the inflated measurements of roaming usage by customers.

In September 2018, Plaintiff filed a whistleblower retaliation complaint with OSHA, which was later dismissed.  Around the same time, the company, pursuant to its short-term disability policy, requested that Plaintiff submit medical documentation showing that he was either fit to return to work or would be eligible for a long-term disability leave of absence.  After Plaintiff refused to provide any of the required documentation or otherwise cooperate, the company terminated his employment upon the expiration of his short-term disability leave.  Plaintiff subsequently filed suit, alleging that the defendant-employer terminated him and subjected him to other retaliatory treatment in retaliation for his whistleblower complaint, in violation of SOX, the False Claims Act, the Illinois False Claims Act, and the Illinois Whistleblower Act.

Ruling

After noting that the various statutes under which Plaintiff sued shared the same basic elements, the court granted the company’s motion for summary judgment and dismissed all of Plaintiff’s claims.  The court held that although Plaintiff had adduced sufficient evidence that he had engaged in protected activity and had suffered some materially adverse employment actions, he failed to demonstrate that his protected activity caused the defendant-employer’s adverse actions against him.  The court noted that the adverse actions upon which Plaintiff relied had either occurred prior to his complaints, or were attributable to his refusal to return to work or provide required medical documentation after his short-term disability leave expired.

Implications

This decision is valuable precedent for employers considering an adverse employment action against an employee who has recently submitted a complaint, as it confirms that whistleblower claims by such an employee may not survive summary judgment if the employer can demonstrate the legitimate, non-retaliatory business reasons for its decision.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice.

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice. Steven’s national practice focuses on defending companies in federal and state courts and arbitration against claims of: discrimination, retaliation and harassment, including claims brought by high-level executives; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations (including class, collective and PAGA actions).

Illustrating his versatility, Steven has successfully handled bench and jury trials in multiple jurisdictions (e.g., Illinois, California, Florida and Texas); defended one of the largest Illinois-only class actions in the history of the federal courts in Chicago; and prevailed following his oral arguments before the Seventh Circuit and state appellate courts. Steven brings his litigation experience to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He was also named as One of the Top 10 Impactful Labor & Employment Lawyers in Illinois for 2023 by Business Today. He is a Fellow of the College of Labor and Employment Lawyers. Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Chambers also reports that “He is someone who can navigate the twists and turns of litigation without difficulty. Steven is great with brief-writing, crafting arguments, and making sure the client is always happy.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC, and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.

Photo of Shanice Z. Smith-Banks Shanice Z. Smith-Banks

Shanice is an associate in the Labor Department. Shanice is a member of several of the firm’s Practice Groups, including Investigations, Labor Management Relations and Counseling, Training & Pay Equity. Her practice involves assisting clients in litigations, arbitrations, and administrative proceedings surrounding claims…

Shanice is an associate in the Labor Department. Shanice is a member of several of the firm’s Practice Groups, including Investigations, Labor Management Relations and Counseling, Training & Pay Equity. Her practice involves assisting clients in litigations, arbitrations, and administrative proceedings surrounding claims of unlawful discrimination, harassment, and retaliation. She has experience assisting with workplace investigations, pay equity analyses, and counseling clients on a range of employment matters. Relative to her labor relations practice, Shanice assists with representation proceedings, responding to unfair labor practice charges and counseling clients surrounding union organizing efforts and collective bargaining.

Shanice was awarded one of Proskauer’s Golden Gavel Awards in 2023 celebrating excellence in pro bono work. Shanice’s pro bono efforts focus on criminal justice and immigration work. She earned her J.D. from Loyola University New Orleans College of Law, where immediately upon graduation, Shanice argued a case on behalf of the Loyola Criminal Defense Law Clinic in front of the Louisiana Supreme Court.