Case: 1:20-cv-06616 Document #: 1 Filed: 11/06/20 Page 1 of 9 PageID #:1
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`CARINA ORTEGA,
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`ELI LILLY AND COMPANY,
`a Corporation,
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`
`
` JURY TRIAL DEMANDED
`
`COMPLAINT
`
`Plaintiff, Carina Ortega, by and through her attorneys, complains of Defendant, Eli Lilly
`
`and Company, as follows.
`
`NATURE OF ACTION
`
`1.
`
`This is an action brought under the Americans with Disabilities Act. Plaintiff, a
`
`former employee of Defendant, suffers from a variety of medical conditions, including
`
`polyarthralgia and fibromyalgia, which require significant monitoring, medication, and care, and
`
`which ultimately necessitated disability and medical leaves of absence from work. Her disability
`
`was exacerbated by attempting to return to work too soon and even with continued treatment her
`
`debilitating symptoms escalated, forcing her doctor to again restrict her from work and return her
`
`to medical leave. At the end of the period initially granted for her medical leave of absence,
`
`Plaintiff requested reasonable accommodations that would have allowed her to remain employed.
`
`Defendant, however, refused to engage in the interactive process to assess her requests for
`
`reasonable accommodation, refused to grant the requests without any claim of undue hardship, and
`
`instead terminated her employment.
`
`
`
`

`

`Case: 1:20-cv-06616 Document #: 1 Filed: 11/06/20 Page 2 of 9 PageID #:2
`
`
`
`JURISDICTION AND VENUE
`
`2.
`
`Jurisdiction is provided by 28 U.S.C. §1331, as the claim involves a violation of
`
`the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.
`
`3.
`
`Plaintiff has complied with all administrative prerequisites by timely filing a
`
`Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”),
`
`against Defendant. The EEOC has issued a Notice of Right to Sue and Plaintiff has brought the
`
`action within 90 days of its receipt.
`
`4.
`
`Venue is proper in the Northern District of Illinois pursuant to 28 U.S.C.
`
`§1391(b)(2) because the events giving rise to this action occurred within this judicial district.
`
`PARTIES
`
`5.
`
`Plaintiff, Carina Ortega, an individual, (hereinafter “Plaintiff”), is a citizen of the
`
`State of Illinois and resident of DuPage County and was formerly employed by Defendant.
`
`6.
`
`Defendant, Eli Lilly and Company (hereinafter “Defendant” or “Eli Lilly”), is an
`
`Indiana corporation, is registered as a foreign corporation with the State of Illinois, and regularly
`
`conducts business throughout the State of Illinois, including in DuPage County.
`
`7.
`
`At all times relevant hereto, Defendant was a covered employer under the
`
`Americans with Disabilities Act (“ADA”), 42 U.S.C. §12111(5).
`
`FACTUAL ALLEGATIONS
`
`8.
`
`Plaintiff began her employment with Defendant in approximately April of 2015,
`
`working as a Senior Sales Representative.
`
`9.
`
`Defendant is a large corporation, employing approximately 35,000 individuals,
`
`with offices in some 18 different countries, while selling its products in over 125 countries, and
`
`generating annual revenue of roughly $24 billion dollars.
`
`
`
`2
`
`

`

`Case: 1:20-cv-06616 Document #: 1 Filed: 11/06/20 Page 3 of 9 PageID #:3
`
`
`
`10.
`
`From April of 2015 through April of 2019, Plaintiff performed her job in an
`
`excellent manner, for which she received various merit and performance-based awards, including
`
`being routinely recognized in the performance based rewards systems, receiving annual base pay
`
`increases, and annually receiving bonuses for always exceeding her sales target. Plaintiff was on
`
`track to exceed her target for the 2019 year, as well.
`
`11.
`
`As a Senior Sales Representative, Plaintiff’s essential job duties included
`
`physically visiting and educating the primary care physicians in her territory about her assigned
`
`medications. At the time of her termination she was in charge of at least 5 different medications
`
`and for all of which she had to know the drug facts, the interactions, instructions for dosage and
`
`usage, and the treatment of the medical conditions for each. She was personally responsible for
`
`carrying and distributing a large number of sample medications – often in a large cooler, with
`
`additional samples in a large bag, and written promotional materials – to the primary care
`
`physicians; all samples and materials had to be picked up from a storage area, placed in her car
`
`daily, walked to each facility visited, brought back from the facility to her car, and then at the end
`
`of the day removed from her car and again walked to the proper storage area, sometimes requiring
`
`multiple trips.
`
`12.
`
`In approximately late April 2019, Plaintiff was suffering from extreme
`
`musculoskeletal pain, excessive fatigue, swelling, dizziness, peripheral neuropathy in her legs, loss
`
`of sleep, and other debilitating symptoms requiring constant treatment through medications and
`
`physical therapy.
`
`13.
`
`Because of this, Plaintiff routinely and repeatedly had issues concentrating and
`
`focusing, caring for herself, sleeping, and performing physical tasks as simple as walking,
`
`standing, and working; she required daily medications to treat her symptoms and to tolerate her
`
`
`
`3
`
`

`

`Case: 1:20-cv-06616 Document #: 1 Filed: 11/06/20 Page 4 of 9 PageID #:4
`
`
`
`concentration impairment, poor sleep quality, and severe physical pain.
`
`14.
`
` From April to June of 2019, Plaintiff’s condition progressively worsened until
`
`finally her doctor placed her on a full work restriction at the beginning of June.
`
`15.
`
`Plaintiff then completed an application for Family and Medical Leave and under
`
`the company’s Short Term Disability leave policy, with the intention to return to work by the end
`
`of June.
`
`16.
`
`Because of the deterioration of her condition and the exacerbation of her symptoms,
`
`Plaintiff began receiving additional treatment and care by multiple health professionals and
`
`remained under the care of a health professional for her disability while on leave.
`
`17.
`
`18.
`
`Plaintiff initially returned to work from her medical leave on June 27, 2019.
`
`Later, in July, Defendant, through its agent, approved the previous request for
`
`FMLA leave because of Plaintiff’s serious health condition, and also approved her claim for Short
`
`Term Disability benefits.
`
`19.
`
`Plaintiff’s attempt to return to work, however, only increased her symptoms,
`
`exacerbating her musculoskeletal pain, excessive fatigue, dizziness, and impairing her ability to
`
`concentrate, focus, sleep, care for herself, perform manual tasks, walk, stand, and lift.
`
`20.
`
`Because of the decline in Plaintiff’s condition following her return to work,
`
`Plaintiff’s physician again placed her on a full work restriction, taking her off of work beginning
`
`July 22, 2019.
`
`21.
`
`Plaintiff thereafter filed another request for FMLA leave and for Short Term
`
`Disability benefits.
`
`22.
`
`Around September 13, 2019, Plaintiff submitted medical documentation to
`
`Defendant from her physician noting her diagnosis of polyarthralgia (fibromyalgia) and fatigue
`
`
`
`4
`
`

`

`Case: 1:20-cv-06616 Document #: 1 Filed: 11/06/20 Page 5 of 9 PageID #:5
`
`
`
`and that she was currently incapable of returning to work but anticipated that, with continued
`
`treatment, she would be medically able to return by November 1, 2019.
`
`23.
`
`Approximately a week later, Defendant gave Plaintiff notice that her FMLA claim,
`
`based on her serious medical condition, was approved, but only for the period of July 22 through
`
`September 26, 2019.
`
`24.
`
`At the same time, Defendant informed Plaintiff that it had denied her request for
`
`Short Term Disability leave benefits, because of which, as of September 27, Defendant placed
`
`Plaintiff into an unpaid leave of absence status.
`
`25.
`
`On or around October 2, 2019, Plaintiff emailed Defendant several questions about
`
`the consequences of, and processes following, the denial of the Short Term Disability claim, one
`
`of which was: “What type of reasonable accommodations can the [sic ] Lilly afford me given my
`
`disability?”
`
`26.
`
`In a later email to Defendant on October 7, 2019, Plaintiff noted that the questions
`
`from her October 2 email had gone unanswered and again made a request for accommodation,
`
`writing, “…I am currently suffering from chronic pain, chronic fatigue and a number of other
`
`symptoms…Additionally, in reviewing the employee handbook, I’ve noted that Lilly offers several
`
`‘Personal Leaves’ of absence. I would like consideration to extend my leave at a minimum until
`
`November 1, 2019. My Rheumatologist has instructed me to stay off work until then and I want to
`
`be compliant with his instructions. What additional medical justification is needed for this
`
`request?”
`
`27.
`
`On Wednesday, October 9, 2019, after a phone call with Plaintiff discussing her
`
`condition and inability to return until November, Defendant responded to Plaintiff’s email by
`
`instructing her and her healthcare provider to complete another medical certification form, even
`
`
`
`5
`
`

`

`Case: 1:20-cv-06616 Document #: 1 Filed: 11/06/20 Page 6 of 9 PageID #:6
`
`
`
`though Plaintiff had submitted many supporting medical records in the previous months.
`
`28.
`
`In the call on October 9, Plaintiff advised Defendant that she was scheduled for
`
`another appointment with her doctor on October 17 and could provide the additional medical
`
`certification after that appointment, to which plan Defendant agreed.
`
`29.
`
`On Monday, October 14, 2019, by letter, Defendant instructed Plaintiff that she was
`
`on an unauthorized leave and must return to work by 9 a.m. on October 16, 2019, and must be
`
`actively making sales visits by 1 p.m. or it would consider her failure to work as a “voluntary
`
`resignation.”
`
`30.
`
`Plaintiff received Defendant’s letter on Tuesday, October 15, and responded by
`
`calling, leaving a voicemail, and also by email explaining that Defendant knew she remained
`
`unable to return to work by October 16 and further reminding Defendant that she had been
`
`requesting an accommodation to extend her unpaid medical leave to November 1, and also to
`
`discuss a part-time schedule on her return; Plaintiff’s email asked specifically, “Does this mean
`
`that Lilly is not considering the request for reasonable accommodations?”
`
`31.
`
`Defendant did not respond to the follow up inquiry about her request for
`
`accommodations, provide any alternatives, or suggest they continue to evaluate or discuss how
`
`Plaintiff could potentially be accommodated.
`
`32.
`
`Further, Defendant did not provide any explanation as to how Plaintiff’s proposed
`
`accommodations, that were consistent with her medical restrictions, would pose an undue hardship
`
`for Defendant.
`
`33.
`
`Instead, the next day, October 16, 2019, Defendant terminated Plaintiff’s
`
`employment.
`
`34.
`
`As a result of Defendant’s conduct, Plaintiff has lost wages and other benefits and
`
`
`
`6
`
`

`

`Case: 1:20-cv-06616 Document #: 1 Filed: 11/06/20 Page 7 of 9 PageID #:7
`
`
`
`has suffered financial hardship and damage to her career and reputation, as well as emotional
`
`distress, loss of enjoyment of life, inconvenience, and similar non-pecuniary losses.
`
`
`
`35.
`
`forth herein.
`
`COUNT I
`FAILURE TO ACCOMMODATE IN VIOLATION
`OF THE AMERICANS WITH DISABILITIES ACT
`
`Plaintiff realleges paragraphs 1 through 34 and incorporates them as if fully set
`
`36.
`
`Title I of the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., as
`
`amended, makes it unlawful for an employer to fail to accommodate an employee’s disability.
`
`37.
`
`By its conduct as alleged herein, Defendant failed to accommodate Plaintiff’s
`
`disabling medical condition.
`
`38.
`
`Defendant’s conduct toward Plaintiff illustrates a willful and/or reckless disregard
`
`of Plaintiff’s rights to be free from impermissible disability discrimination.
`
`39.
`
`Plaintiff demands to exercise her right to a jury trial of this matter.
`
`
`
`WHEREFORE, Plaintiff respectfully requests that this Court find in her favor and against
`
`Defendant on Count I as follows:
`
`a) Declare that Defendant’s conduct was in violation of the Americans with
`Disabilities Act, as amended, and enjoin all officers, agents, employees, and all
`persons in active concert or participation with it from engaging in further unlawful
`conduct prohibited by the ADA;
`
`b) Enjoin Defendant and all officers, agents, employees, and all persons in active
`concert or participation with it to institute and carry out all policies and practices to
`provide equal employment opportunities for all and to prevent discrimination;
`
`c) Order Defendant to reinstate Plaintiff to a position equal to or greater than her
`former position; or, in the alternative, award Plaintiff the value of compensation
`and benefits she will lose in the future as a result of Defendant’s unlawful conduct;
`
`
`
`
`7
`
`

`

`Case: 1:20-cv-06616 Document #: 1 Filed: 11/06/20 Page 8 of 9 PageID #:8
`
`
`
`d) Award Plaintiff any applicable compensatory damages, including but not limited to
`the value of all past and future lost compensation and benefits as a result of
`Defendant’s unlawful conduct, as well as for emotional distress;
`
`e) Award Plaintiff pre-judgment interest and additional damages to offset the tax
`liability on the value of compensation and benefits lost, and which she will lose in
`the future, as a result of Defendant’s unlawful conduct;
`
`f) Award Plaintiff punitive damages;
`
`g) Award Plaintiff reasonable attorney’s fees, costs, and disbursements; and
`
`h) Award Plaintiff any and all other relief as the Court deems just in the premises.
`
`
`
`
`COUNT II
`DISCRIMINATION IN VIOLATION
`OF THE AMERICANS WITH DISABILTIES ACT
`
`Plaintiff realleges paragraphs 1 through 34 and incorporates them as though fully
`
`40.
`
`set forth herein.
`
`41.
`
`Title I of the Americans with Disabilities Act, specifically 42 U.S.C. §12101 et
`
`seq., makes it unlawful to discriminate against an employee on the basis of an employee’s
`
`disability, because of a record of disability, or because the employer regards the employee as
`
`suffering from a disability.
`
`42.
`
`By its conduct as alleged herein, Defendant discriminated against Plaintiff, in that
`
`Defendant refused to allow Plaintiff to return to work and effectively terminated her employment
`
`because of her disability, because Defendant was aware of Plaintiff’s record of having a disability,
`
`and/or because Defendant further regarded Plaintiff as being disabled.
`
`43.
`
`Defendant’s conduct toward Plaintiff illustrates a willful and/or reckless disregard
`
`of Plaintiff’s right to be free from impermissible disability discrimination.
`
`44.
`
`Plaintiff demands to exercise her right to a jury trial of this matter.
`
`
`
`8
`
`

`

`Case: 1:20-cv-06616 Document #: 1 Filed: 11/06/20 Page 9 of 9 PageID #:9
`
`
`
`
`
`WHEREFORE, Plaintiff respectfully requests that this Court find in her favor and against
`
`Defendant on Count II as follows:
`
`a) Declare that Defendant’s conduct was in violation of the Americans with
`Disabilities Act, as amended, and enjoin all officers, agents, employees, and all
`persons in active concert or participation with it from engaging in further unlawful
`conduct prohibited by the ADA;
`
`b) Enjoin Defendant and all officers, agents, employees, and all persons in active
`concert or participation with it to institute and carry out all policies and practices to
`provide equal employment opportunities for all and to prevent discrimination;
`
`c) Order Defendant to reinstate Plaintiff to a position equal to or greater than her
`former position; or, in the alternative, award Plaintiff the value of compensation
`and benefits she will lose in the future as a result of Defendant’s unlawful conduct;
`
`d) Award Plaintiff any applicable compensatory damages, including but not limited to
`the value of all past and future lost compensation and benefits as a result of
`Defendant’s unlawful conduct, as well as for emotional distress;
`
`e) Award Plaintiff pre-judgment interest and additional damages to offset the tax
`liability on the value of compensation and benefits lost, and which she will lose in
`the future, as a result of Defendant’s unlawful conduct;
`
`f) Award Plaintiff punitive damages;
`
`g) Award Plaintiff reasonable attorney’s fees, costs, and disbursements; and
`
`h) Award Plaintiff any and all other relief as the Court deems just in the premises.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`CARINA ORTEGA
`
`
`
`/s/ John P. Madden
`Attorney for the Plaintiff
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`John P. Madden
`Katherine D. Ellis
`& 
`542 So. Dearborn Street, Suite 660
`Chicago, Illinois 60605
`(312) 697-1382
`jmadden@ompc-law.com
`Atty No. 6243400
`
`
`
`9
`
`