1005-00004 · Nexford Industrial Holdings · Pleadings

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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.

Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its undersigned attorneys, Calderwood & Harkness LLP, hereby respectfully answers the Complaint filed by Plaintiff Darren K. Maciejewski ("Plaintiff") on March 15, 2022, and states its Affirmative Defenses as set forth below. In responding to the Complaint, Defendant reserves all objections to the form, substance, relevance, and sufficiency of each and every allegation contained therein. Any allegation of the Complaint not expressly and specifically admitted herein is hereby denied. To the extent that any heading, caption, or introductory language in the Complaint purports to state a factual allegation or legal conclusion, Defendant denies any such allegation or conclusion unless expressly admitted below.

ANSWER

RESPONSES TO GENERAL AND INTRODUCTORY ALLEGATIONS OF THE COMPLAINT

1. Paragraph 1 of the Complaint alleges that Plaintiff is Darren K. Maciejewski, an individual residing in the State of Illinois.

RESPONSE: Defendant admits that Plaintiff Darren K. Maciejewski is an individual. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation regarding Plaintiff's current residence, and therefore denies the same. To the extent that Paragraph 1 contains any characterizations, conclusions, or assertions beyond the simple identification of Plaintiff as an individual, Defendant denies such characterizations, conclusions, or assertions.

2. Paragraph 2 of the Complaint alleges that Defendant Nexford Industrial Holdings Inc. is a corporation organized under the laws of the State of Delaware and authorized to do business in the State of Illinois, with its principal place of business in Schaumburg, Illinois.

RESPONSE: Admitted. Defendant Nexford Industrial Holdings Inc. is a corporation duly organized and existing under the laws of the State of Delaware, qualified and authorized to transact business in the State of Illinois, and maintains its corporate headquarters and principal place of business at 500 Commerce Drive, Suite 400, Schaumburg, Illinois 60173.

3. Paragraph 3 of the Complaint alleges that jurisdiction and venue are proper in the Circuit Court of Cook County, Illinois.

RESPONSE: Admitted. Defendant admits that the Circuit Court of Cook County, Illinois possesses subject matter jurisdiction over this matter and that venue is proper in Cook County, Illinois, pursuant to applicable provisions of the Illinois Code of Civil Procedure.

4. Paragraph 4 of the Complaint alleges that Plaintiff was employed by Defendant as a Quality Assurance Supervisor at Defendant's manufacturing facility located in Elgin, Illinois, from approximately June 2017 until his termination on September 24, 2021.

RESPONSE: Admitted in part and denied in part. Defendant admits that Plaintiff was employed by Nexford at its manufacturing facility located at 2700 Industrial Parkway, Elgin, Illinois 60123 (the "Elgin Facility"), commencing on June 12, 2017, and that Plaintiff's employment with Nexford ended on September 24, 2021. However, Defendant clarifies that Plaintiff's title at the time of his separation was Senior Quality Assurance Supervisor, a position to which Plaintiff was promoted in or about March 2019. Defendant further admits that Plaintiff's employment ended on September 24, 2021. Defendant denies the allegation to the extent it characterizes or implies that the end of Plaintiff's employment was anything other than a lawful termination for cause, carried out in accordance with Nexford's established policies and procedures for progressive discipline.

5. Paragraph 5 of the Complaint alleges that Plaintiff's annual salary at the time of termination was $78,400.

RESPONSE: Admitted. Defendant admits that Plaintiff's annual base salary at the time of his termination on September 24, 2021 was $78,400.00.

6. Paragraph 6 of the Complaint alleges that Defendant operates manufacturing facilities in the greater Chicago area and is engaged in the manufacture of industrial components.

RESPONSE: Admitted. Defendant admits that Nexford is an industrial manufacturing company that operates manufacturing facilities in the greater Chicago metropolitan area. Defendant further clarifies that Nexford specializes in the design, engineering, and manufacture of precision-machined components for heavy equipment and infrastructure applications, serving customers in the construction, transportation, energy, and defense sectors.

RESPONSES TO FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

7. Paragraph 7 of the Complaint alleges that, beginning in or about April 2021, Plaintiff made multiple internal reports to his supervisor and to Defendant's Environmental Health & Safety department concerning unsafe chemical storage conditions in Building C of the Elgin Facility.

RESPONSE: Admitted in part and denied in part. Defendant admits that Plaintiff communicated concerns regarding chemical storage conditions in Building C of the Elgin Facility to his direct supervisor, Plant Manager Frank Bosch, on or about April 5, 2021. Defendant further admits that Plaintiff submitted a follow-up written report to Nexford's Environmental Health & Safety ("EHS") Department, directed to EHS Director Liam Gallagher, on or about April 19, 2021, regarding chemical storage conditions in Building C. Defendant denies, however, the characterization of the chemical storage conditions in Building C as "unsafe." Upon receiving Plaintiff's report, the EHS Department promptly initiated a thorough investigation of the chemical storage conditions in Building C. On or about May 3, 2021, the EHS Department completed its investigation and concluded that the chemical storage in Building C was in material compliance with all applicable federal, state, and local regulations, including without limitation the requirements of the Occupational Safety and Health Act, applicable OSHA standards, and the Illinois Environmental Protection Act. The EHS Department's investigation report recommended only minor labeling improvements to certain secondary containment labels, which were implemented within two weeks of the report's issuance. To the extent that Paragraph 7 contains any further allegations not specifically addressed herein, Defendant denies the same.

8. Paragraph 8 of the Complaint alleges that, on or about June 8, 2021, Plaintiff filed a complaint with the Occupational Safety and Health Administration ("OSHA") regarding the chemical storage conditions in Building C.

RESPONSE: Admitted. Defendant admits that Plaintiff filed a complaint with the Occupational Safety and Health Administration, designated as OSHA Complaint No. 1734892, on or about June 8, 2021, with the OSHA Area Office located at 701 Lee Street, Suite 950, Des Plaines, Illinois 60016. Defendant further admits that Nexford received notification from OSHA of the filing of the complaint on or about June 14, 2021.

9. Paragraph 9 of the Complaint alleges that OSHA conducted an inspection of Building C at the Elgin Facility.

RESPONSE: Admitted. Defendant admits that OSHA conducted an on-site inspection of Building C at the Elgin Facility on July 12, 2021, in connection with Plaintiff's OSHA Complaint No. 1734892. Defendant further states, upon information and belief, that the substance of the complaint pertained to the alleged improper storage of Class 3 flammable liquids, including acetone and isopropanol, in quantities purportedly exceeding flammable storage cabinet capacity limits under 29 C.F.R. § 1910.106. However, Defendant affirmatively states that OSHA closed Complaint No. 1734892 on or about August 18, 2021, with no citations issued and no findings of any violation of any applicable OSHA standard, rule, regulation, or order. The OSHA closing letter confirmed that the inspection did not identify conditions warranting the issuance of citations or the imposition of penalties.

10. Paragraph 10 of the Complaint alleges that, in retaliation for Plaintiff's protected activity in reporting safety violations internally and to OSHA, Defendant terminated Plaintiff's employment on September 24, 2021.

RESPONSE: Denied. Defendant specifically and categorically denies that Plaintiff's termination on September 24, 2021 was in any way motivated by, connected to, or taken in retaliation for Plaintiff's internal safety reports, his filing of OSHA Complaint No. 1734892, or any other activity alleged to be protected under federal or state law. Plaintiff's termination was based solely and exclusively on legitimate, non-retaliatory business reasons — specifically, Plaintiff's documented, repeated violations of Nexford's attendance and tardiness policy, as set forth in Section 4.3 of the Nexford Employee Handbook (revised January 2020), following progressive discipline administered in accordance with Nexford's established human resources policies and procedures. Defendant denies any retaliatory motive, animus, or causal connection between any alleged protected activity and Plaintiff's termination.

11. Paragraph 11 of the Complaint alleges that Defendant issued disciplinary warnings to Plaintiff as a pretext for termination.

RESPONSE: Denied. Defendant denies that any disciplinary action taken against Plaintiff was pretextual, contrived, or motivated by any improper purpose. Defendant admits the following facts regarding the progressive discipline administered to Plaintiff:

(a) On May 24, 2021, Nexford issued a first written warning to Plaintiff for violations of the attendance and tardiness policy set forth in Employee Handbook § 4.3. Specifically, Plaintiff had arrived more than fifteen (15) minutes late for his scheduled shift on four (4) separate occasions within a thirty (30) day period, in contravention of the policy's clear terms.

(b) On August 2, 2021, Nexford issued a final written warning to Plaintiff for continued and ongoing attendance violations. Specifically, Plaintiff incurred three (3) additional instances of unexcused tardiness during the period between June 1, 2021 and July 31, 2021, in further contravention of Employee Handbook § 4.3.

(c) On September 20, 2021, Plaintiff failed to report for his scheduled shift and did not contact his supervisor or the plant to provide notice of his absence, as required under Employee Handbook § 4.3. This constituted an unexcused absence — commonly referred to as a "no call, no show" — under the attendance policy.

(d) On September 24, 2021, a termination meeting was conducted by Plant Manager Frank Bosch and Vice President of Human Resources Catherine Donnelly. During this meeting, Plaintiff was informed that his employment was being terminated due to his cumulative attendance violations and his failure to comply with the terms of the progressive discipline process, including the final written warning issued on August 2, 2021.

Defendant affirmatively states that all disciplinary actions taken against Plaintiff were documented contemporaneously, were reviewed and approved by the Human Resources Department prior to issuance, and were consistent with Nexford's uniform application of its attendance and progressive discipline policies to similarly situated employees across the organization. Defendant denies any allegation that the progressive discipline was a pretext for retaliation or was otherwise improperly motivated.

12. Paragraph 12 of the Complaint alleges that the temporal proximity between Plaintiff's protected activities and his termination demonstrates retaliatory intent.

RESPONSE: Denied. Defendant denies that any temporal relationship between Plaintiff's alleged protected activities and his termination, to the extent one exists, establishes or is probative of retaliatory intent or causation. Any perceived temporal relationship is entirely coincidental and does not, as a matter of law or fact, give rise to an inference of retaliation. Plaintiff's attendance violations were independently documented and warranted progressive discipline irrespective of any activity alleged to be protected under federal or state law. The disciplinary actions were the product of Plaintiff's own conduct and Nexford's consistent application of its workplace policies.

13. Paragraph 13 of the Complaint alleges that, as a result of Defendant's retaliatory conduct, Plaintiff has suffered lost wages, emotional distress, and other damages.

RESPONSE: Denied. Defendant denies that Plaintiff's termination was retaliatory, unlawful, or wrongful in any respect. Defendant further denies that Plaintiff has suffered any cognizable injury, loss, or damage attributable to any act or omission of Defendant, and therefore denies that Plaintiff is entitled to any damages, whether in the form of lost wages, emotional distress, or otherwise.

RESPONSES TO COUNT I — RETALIATORY DISCHARGE (ILLINOIS COMMON LAW)

14. Paragraph 14 of the Complaint purports to incorporate by reference all prior paragraphs.

RESPONSE: Defendant incorporates by reference its responses to all prior paragraphs of this Answer as though fully set forth herein.

15. Paragraph 15 of the Complaint alleges that Plaintiff's termination violated the clearly mandated public policy of the State of Illinois protecting employees who report workplace safety violations.

RESPONSE: Denied. Defendant denies that Plaintiff's termination violated any clearly mandated public policy of the State of Illinois or any other jurisdiction. Plaintiff was terminated for documented and repeated violations of Nexford's attendance policy following progressive discipline, and not for any activity alleged to constitute the exercise of a right protected by public policy. Defendant further denies that Plaintiff's reports, whether internal or to OSHA, played any role whatsoever in the decision to terminate Plaintiff's employment.

16. Paragraph 16 of the Complaint alleges that Plaintiff seeks back pay, front pay, compensatory damages for emotional distress in the amount of $150,000, punitive damages in the amount of $500,000, and attorneys' fees and costs.

RESPONSE: Denied. Defendant denies that Plaintiff is entitled to any relief whatsoever under Count I of the Complaint, including but not limited to back pay, front pay, compensatory damages, punitive damages, attorneys' fees, costs, or any other form of relief. Paragraph 16 states legal conclusions and requests for relief to which no responsive pleading is required; to the extent a response is deemed required, the allegations and requests are denied in their entirety.

RESPONSES TO COUNT II — RETALIATION UNDER SECTION 11(c) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT (29 U.S.C. § 660(c))

17. Paragraph 17 of the Complaint purports to incorporate by reference all prior paragraphs.

RESPONSE: Defendant incorporates by reference its responses to all prior paragraphs of this Answer as though fully set forth herein.

18. Paragraph 18 of the Complaint alleges that Defendant retaliated against Plaintiff for filing OSHA Complaint No. 1734892 in violation of Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c).

RESPONSE: Denied. Defendant categorically denies that Plaintiff's termination was in any way related to, motivated by, or taken in retaliation for Plaintiff's filing of OSHA Complaint No. 1734892 or any other complaint or communication with OSHA. Plaintiff's termination was the result of legitimate, non-retaliatory business reasons, as set forth in detail in Defendant's responses to Paragraphs 10 and 11 above. Defendant further denies that Plaintiff possesses a private right of action under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c). The statutory scheme of Section 11(c) vests enforcement authority exclusively in the Secretary of Labor, and does not create an independent private right of action for individual employees. Defendant further asserts, upon information and belief, that Plaintiff has failed to exhaust the administrative remedies required as a precondition to any claim under Section 11(c), including the filing of a timely complaint with the Secretary of Labor within thirty (30) days of the alleged discriminatory act, as required by 29 U.S.C. § 660(c)(2). Accordingly, Count II fails as a matter of law and should be dismissed.

19. Paragraph 19 of the Complaint alleges that Plaintiff seeks the same categories of damages as set forth in Count I.

RESPONSE: Denied. Defendant denies that Plaintiff is entitled to any relief whatsoever under Count II of the Complaint, for the reasons set forth in Defendant's response to Paragraph 18 and throughout this Answer. To the extent Paragraph 19 states legal conclusions or requests for relief to which no responsive pleading is required, Defendant denies the same.

RESPONSES TO COUNT III — VIOLATION OF THE ILLINOIS WHISTLEBLOWER ACT (740 ILCS 174/1 ET SEQ.)

20. Paragraph 20 of the Complaint purports to incorporate by reference all prior paragraphs.

RESPONSE: Defendant incorporates by reference its responses to all prior paragraphs of this Answer as though fully set forth herein.

21. Paragraph 21 of the Complaint alleges that Defendant retaliated against Plaintiff in violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., for reporting or threatening to report activities of Defendant that Plaintiff had reasonable cause to believe were in violation of a law, rule, or regulation.

RESPONSE: Denied. Defendant denies that Plaintiff's termination was retaliatory or that it violated the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., or any other provision of Illinois law. Plaintiff's termination was based on legitimate, documented reasons wholly unrelated to any activity alleged to be protected by the Illinois Whistleblower Act, as set forth in detail in Defendant's responses to Paragraphs 10 and 11 above. Moreover, the EHS Department's investigation, completed on or about May 3, 2021, concluded that the chemical storage conditions in Building C were in compliance with applicable regulations, and OSHA's on-site inspection of Building C on July 12, 2021 resulted in no citations and no findings of any violation of any applicable OSHA standard, rule, regulation, or order. The OSHA complaint was closed on August 18, 2021 without any adverse finding against Defendant. These facts further undermine any claim that Defendant had a retaliatory motive for terminating Plaintiff's employment.

22. Paragraph 22 of the Complaint alleges that Plaintiff seeks the same categories of damages as set forth in the prior Counts, plus any additional remedies available under 740 ILCS 174/1 et seq.

RESPONSE: Denied. Defendant denies that Plaintiff is entitled to any relief whatsoever under Count III of the Complaint, including but not limited to any remedies provided under the Illinois Whistleblower Act or otherwise. To the extent Paragraph 22 states legal conclusions or requests for relief to which no responsive pleading is required, Defendant denies the same.

GENERAL DENIAL

Defendant denies each and every allegation of the Complaint not expressly admitted herein. To the extent any allegation in the Complaint has not been specifically addressed in this Answer, Defendant denies such allegation. Defendant further reserves the right to amend or supplement this Answer as discovery progresses or as further investigation warrants, in accordance with the Illinois Code of Civil Procedure and the applicable Rules of the Circuit Court of Cook County.

AFFIRMATIVE DEFENSES

Without waiving or diminishing its denials set forth above, and without assuming any burden of proof that would otherwise rest with Plaintiff, Defendant Nexford Industrial Holdings Inc. asserts the following Affirmative Defenses:

FIRST AFFIRMATIVE DEFENSE

Legitimate, Non-Retaliatory Business Reason

Plaintiff's termination on September 24, 2021 was based exclusively on legitimate, non-retaliatory business reasons and was in no way connected to, motivated by, or taken in retaliation for any activity alleged by Plaintiff to be protected under federal or state law. Specifically, Plaintiff was subjected to progressive discipline under Nexford's Employee Handbook § 4.3 (Attendance and Tardiness Policy), as follows:

(a) On May 24, 2021, Nexford issued a first written warning to Plaintiff for violations of the attendance and tardiness policy. Plaintiff had arrived more than fifteen (15) minutes late for his scheduled shift on four (4) separate occasions within a thirty (30) day period, in direct contravention of the attendance policy's clearly stated terms.

(b) On August 2, 2021, Nexford issued a final written warning to Plaintiff for continued and repeated attendance violations. Plaintiff incurred three (3) additional instances of unexcused tardiness during the period between June 1, 2021 and July 31, 2021, notwithstanding the first written warning previously issued.

(c) On September 20, 2021, Plaintiff failed to report for his scheduled shift at the Elgin Facility and did not call in or otherwise provide notice to his supervisor or the plant of his intended absence, constituting an unexcused absence — a "no call, no show" — under Employee Handbook § 4.3.

The termination meeting was held on September 24, 2021, and was conducted by Plant Manager Frank Bosch and Vice President of Human Resources Catherine Donnelly, in accordance with Nexford's established progressive discipline procedures. The decision to terminate Plaintiff's employment was made based solely on Plaintiff's documented attendance violations and his failure to comply with the terms of the progressive discipline imposed upon him. All disciplinary actions taken against Plaintiff were documented contemporaneously, reviewed and approved by the Human Resources Department, and were consistent with Nexford's uniform and even-handed application of its attendance policies to all employees, including similarly situated employees who had no involvement in safety reporting or other allegedly protected activity.

Accordingly, Plaintiff cannot establish that his termination was retaliatory, and his claims under all Counts of the Complaint fail as a matter of law.

SECOND AFFIRMATIVE DEFENSE

Failure to Exhaust Administrative Remedies (as to Count II)

As to Count II of the Complaint, which alleges retaliation in violation of Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), Plaintiff has failed to exhaust the administrative remedies required as a precondition to bringing suit under that provision.

Section 11(c) of the Occupational Safety and Health Act requires that a complaint of retaliation or discrimination be filed with the Secretary of Labor within thirty (30) days of the date of the alleged discriminatory act. See 29 U.S.C. § 660(c)(2). Upon information and belief, Plaintiff did not file a timely complaint with the Secretary of Labor alleging retaliation or discrimination in connection with his termination on September 24, 2021, within the time period required by statute.

Moreover, Section 11(c) of the Occupational Safety and Health Act does not create or provide a private right of action independent of the administrative proceedings that must be initiated and prosecuted by the Secretary of Labor. The enforcement mechanism under Section 11(c) is vested exclusively in the Secretary of Labor, who, upon receipt of a complaint, is authorized to investigate and, if appropriate, bring an action in United States District Court on behalf of the complainant. Individual employees may not maintain an independent private action under Section 11(c). See, e.g., Taylor v. Brighton Corp., 616 F.2d 256, 263–64 (6th Cir. 1980); Donovan v. Diplomat Envelope Corp., 587 F. Supp. 1417, 1424 (E.D.N.Y. 1984).

Accordingly, Count II of the Complaint should be dismissed in its entirety for failure to exhaust administrative remedies and/or for lack of a cognizable private right of action.

THIRD AFFIRMATIVE DEFENSE

After-Acquired Evidence. In the event that Defendant discovers, through the course of discovery or otherwise, evidence of wrongdoing, misconduct, dishonesty, policy violations, or other grounds for termination on the part of Plaintiff that were not known to Defendant at the time of Plaintiff's termination on September 24, 2021, Defendant asserts the after-acquired evidence doctrine as a complete or partial limitation on any potential remedies that might otherwise be available to Plaintiff.

Under the United States Supreme Court's decision in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), and its progeny as applied in Illinois courts, after-acquired evidence of employee misconduct or other just cause for termination may limit or entirely eliminate certain categories of remedies, including but not limited to front pay, reinstatement, and back pay accruing after the date on which the employer discovered or reasonably should have discovered the evidence of misconduct. Defendant expressly reserves the right to supplement this defense upon completion of discovery.

FOURTH AFFIRMATIVE DEFENSE

Failure to Mitigate Damages

Plaintiff has failed to exercise reasonable diligence to mitigate his damages by seeking and obtaining comparable employment following his termination on September 24, 2021. Under well-established principles of Illinois law, a plaintiff who has been terminated from employment has a duty to exercise reasonable diligence to find suitable, comparable employment in order to minimize the damages attributable to the alleged wrongful act. To the extent Plaintiff failed to actively search for and accept comparable employment opportunities, or unreasonably declined such opportunities, his recoverable damages, if any, should be reduced accordingly.

Any recovery by Plaintiff, should liability be established, which Defendant expressly denies, must be reduced by the amounts that Plaintiff actually earned, or could have earned through the exercise of reasonable diligence, in mitigation of his alleged damages during the period following his termination.

FIFTH AFFIRMATIVE DEFENSE

No Punitive Damages

Plaintiff's claim for punitive damages in the amount of $500,000 is unsupported by the facts alleged in the Complaint and is not permitted as a matter of law. Defendant's conduct in terminating Plaintiff's employment was not willful, wanton, malicious, fraudulent, or undertaken with reckless disregard for Plaintiff's rights or well-being. To the contrary, Defendant's actions were taken in good faith, in accordance with its established policies and procedures, and for legitimate business reasons.

Furthermore, punitive damages are not available as a remedy under the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., which provides specific statutory remedies that do not include punitive damages. Punitive damages are likewise not available under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), which provides for reinstatement, back pay, and compensatory damages, but does not authorize the award of punitive damages.

To the extent punitive damages may theoretically be available under the Illinois common law tort of retaliatory discharge, as alleged in Count I, Defendant's conduct does not rise to the level of willful, wanton, or malicious behavior required to support such an award under Illinois law. The undisputed facts establish that Plaintiff was terminated following a documented course of progressive discipline for attendance violations, and there is no factual basis for an award of punitive damages.

SIXTH AFFIRMATIVE DEFENSE

OSHA Found No Violation

OSHA conducted an on-site inspection of Building C of the Elgin Facility on July 12, 2021, in response to Plaintiff's OSHA Complaint No. 1734892. Following its inspection, OSHA closed the complaint on or about August 18, 2021, without issuing any citations, without imposing any penalties, and without making any findings of violation of any applicable OSHA standard, rule, regulation, or order.

This finding by the federal agency charged with enforcement of workplace safety standards is directly relevant to, and materially undermines, Plaintiff's claims that his termination was motivated by retaliation for reporting bona fide safety violations. The fact that neither Nexford's own EHS Department (which completed its internal investigation on May 3, 2021) nor OSHA (which completed its inspection and closed the complaint on August 18, 2021) found any violation of applicable safety regulations undercuts Plaintiff's contention that Defendant had a retaliatory motive to terminate Plaintiff for reporting purported safety hazards.

SEVENTH AFFIRMATIVE DEFENSE

Reservation of Additional Defenses

Defendant reserves the right to assert additional affirmative defenses as may become apparent or appropriate through the course of discovery, motion practice, and further investigation of the facts and circumstances underlying this litigation. Discovery has not yet commenced, and Defendant has not had the opportunity to fully investigate all facts relevant to this matter. This Answer is filed without waiver of any defense, affirmative or otherwise, that may be available to Defendant, including but not limited to defenses based upon:

(a) statutes of limitations or statutes of repose;

(b) laches;

(d) waiver;

(e) unclean hands;

(f) failure to state a claim upon which relief can be granted;

(g) setoff and recoupment;

(h) comparative fault or contributory negligence;

(i) lack of standing; and

(j) any other applicable legal or equitable defense.

Defendant's assertion or omission of any particular defense in this Answer shall not be construed as a waiver of any defense, right, or privilege available to Defendant under applicable law.

PRAYER FOR RELIEF

WHEREFORE, Defendant Nexford Industrial Holdings Inc. respectfully requests that this Honorable Court enter an Order:

1. Dismissing Plaintiff's Complaint in its entirety, with prejudice, and on the merits;

2. Entering judgment in favor of Defendant Nexford Industrial Holdings Inc. and against Plaintiff Darren K. Maciejewski on all Counts of the Complaint;

3. Awarding Defendant its costs of suit and reasonable attorneys' fees to the extent permitted by applicable law;

4. Denying Plaintiff any and all relief requested in the Complaint; and

5. Granting such other and further relief as this Court deems just, equitable, and proper.

Respectfully submitted,

NEXFORD INDUSTRIAL HOLDINGS INC.,

By its Attorneys,

CALDERWOOD & HARKNESS LLP

By: ________

Bernard Crawford (ARDC No. 6312487) CALDERWOOD & HARKNESS LLP 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 Telephone: (312) 555-4200 Facsimile: (312) 555-4201

Email: bcrawford@calderwoodharkness.com

Attorneys for Defendant Nexford Industrial Holdings Inc.

Date: April 18, 2022

CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that on April 18, 2022, a true and correct copy of the foregoing Answer and Affirmative Defenses of Defendant Nexford Industrial Holdings Inc. was served upon counsel for Plaintiff at the following address:

Gerald P. Hess Hess & Loughlin, P.C. 3412 Harlem Avenue, Suite 205 Berwyn, Illinois 60402 Telephone: (708) 555-3100

Email: ghess@hessloughlin.com

by depositing the same in the United States Mail, first class, postage prepaid, and by transmitting a copy via electronic mail to the email address set forth above, on this 18th day of April, 2022.

________________________________________

Bernard Crawford

DARREN K. MACIEJEWSKI,

<!-- indent:1 -->Plaintiff,<!-- /indent -->	Case No. 2022-L-002847
v.	Hon. Helena R. Vasquez-Torres

NEXFORD INDUSTRIAL HOLDINGS INC.,

Defendant.

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION
ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.
Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its undersigned attorneys, Calderwood & Harkness LLP, hereby respectfully answers the Complaint filed by Plaintiff Darren K. Maciejewski ("Plaintiff") on March 15, 2022, and states its Affirmative Defenses as set forth below. In responding to the Complaint, Defendant reserves all objections to the form, substance, relevance, and sufficiency of each and every allegation contained therein. Any allegation of the Complaint not expressly and specifically admitted herein is hereby denied. To the extent that any heading, caption, or introductory language in the Complaint purports to state a factual allegation or legal conclusion, Defendant denies any such allegation or conclusion unless expressly admitted below.
ANSWER
RESPONSES TO GENERAL AND INTRODUCTORY ALLEGATIONS OF THE COMPLAINT
1. Paragraph 1 of the Complaint alleges that Plaintiff is Darren K. Maciejewski, an individual residing in the State of Illinois.
RESPONSE: Defendant admits that Plaintiff Darren K. Maciejewski is an individual. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation regarding Plaintiff's current residence, and therefore denies the same. To the extent that Paragraph 1 contains any characterizations, conclusions, or assertions beyond the simple identification of Plaintiff as an individual, Defendant denies such characterizations, conclusions, or assertions.
2. Paragraph 2 of the Complaint alleges that Defendant Nexford Industrial Holdings Inc. is a corporation organized under the laws of the State of Delaware and authorized to do business in the State of Illinois, with its principal place of business in Schaumburg, Illinois.
RESPONSE: Admitted. Defendant Nexford Industrial Holdings Inc. is a corporation duly organized and existing under the laws of the State of Delaware, qualified and authorized to transact business in the State of Illinois, and maintains its corporate headquarters and principal place of business at 500 Commerce Drive, Suite 400, Schaumburg, Illinois 60173.
3. Paragraph 3 of the Complaint alleges that jurisdiction and venue are proper in the Circuit Court of Cook County, Illinois.
RESPONSE: Admitted. Defendant admits that the Circuit Court of Cook County, Illinois possesses subject matter jurisdiction over this matter and that venue is proper in Cook County, Illinois, pursuant to applicable provisions of the Illinois Code of Civil Procedure.
4. Paragraph 4 of the Complaint alleges that Plaintiff was employed by Defendant as a Quality Assurance Supervisor at Defendant's manufacturing facility located in Elgin, Illinois, from approximately June 2017 until his termination on September 24, 2021.
RESPONSE: Admitted in part and denied in part. Defendant admits that Plaintiff was employed by Nexford at its manufacturing facility located at 2700 Industrial Parkway, Elgin, Illinois 60123 (the "Elgin Facility"), commencing on June 12, 2017, and that Plaintiff's employment with Nexford ended on September 24, 2021. However, Defendant clarifies that Plaintiff's title at the time of his separation was Senior Quality Assurance Supervisor, a position to which Plaintiff was promoted in or about March 2019. Defendant further admits that Plaintiff's employment ended on September 24, 2021. Defendant denies the allegation to the extent it characterizes or implies that the end of Plaintiff's employment was anything other than a lawful termination for cause, carried out in accordance with Nexford's established policies and procedures for progressive discipline.
5. Paragraph 5 of the Complaint alleges that Plaintiff's annual salary at the time of termination was $78,400.
RESPONSE: Admitted. Defendant admits that Plaintiff's annual base salary at the time of his termination on September 24, 2021 was $78,400.00.
6. Paragraph 6 of the Complaint alleges that Defendant operates manufacturing facilities in the greater Chicago area and is engaged in the manufacture of industrial components.
RESPONSE: Admitted. Defendant admits that Nexford is an industrial manufacturing company that operates manufacturing facilities in the greater Chicago metropolitan area. Defendant further clarifies that Nexford specializes in the design, engineering, and manufacture of precision-machined components for heavy equipment and infrastructure applications, serving customers in the construction, transportation, energy, and defense sectors.
RESPONSES TO FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
7. Paragraph 7 of the Complaint alleges that, beginning in or about April 2021, Plaintiff made multiple internal reports to his supervisor and to Defendant's Environmental Health & Safety department concerning unsafe chemical storage conditions in Building C of the Elgin Facility.
RESPONSE: Admitted in part and denied in part. Defendant admits that Plaintiff communicated concerns regarding chemical storage conditions in Building C of the Elgin Facility to his direct supervisor, Plant Manager Frank Bosch, on or about April 5, 2021. Defendant further admits that Plaintiff submitted a follow-up written report to Nexford's Environmental Health & Safety ("EHS") Department, directed to EHS Director Liam Gallagher, on or about April 19, 2021, regarding chemical storage conditions in Building C. Defendant denies, however, the characterization of the chemical storage conditions in Building C as "unsafe." Upon receiving Plaintiff's report, the EHS Department promptly initiated a thorough investigation of the chemical storage conditions in Building C. On or about May 3, 2021, the EHS Department completed its investigation and concluded that the chemical storage in Building C was in material compliance with all applicable federal, state, and local regulations, including without limitation the requirements of the Occupational Safety and Health Act, applicable OSHA standards, and the Illinois Environmental Protection Act. The EHS Department's investigation report recommended only minor labeling improvements to certain secondary containment labels, which were implemented within two weeks of the report's issuance. To the extent that Paragraph 7 contains any further allegations not specifically addressed herein, Defendant denies the same.
8. Paragraph 8 of the Complaint alleges that, on or about June 8, 2021, Plaintiff filed a complaint with the Occupational Safety and Health Administration ("OSHA") regarding the chemical storage conditions in Building C.
RESPONSE: Admitted. Defendant admits that Plaintiff filed a complaint with the Occupational Safety and Health Administration, designated as OSHA Complaint No. 1734892, on or about June 8, 2021, with the OSHA Area Office located at 701 Lee Street, Suite 950, Des Plaines, Illinois 60016. Defendant further admits that Nexford received notification from OSHA of the filing of the complaint on or about June 14, 2021.
9. Paragraph 9 of the Complaint alleges that OSHA conducted an inspection of Building C at the Elgin Facility.
RESPONSE: Admitted. Defendant admits that OSHA conducted an on-site inspection of Building C at the Elgin Facility on July 12, 2021, in connection with Plaintiff's OSHA Complaint No. 1734892. Defendant further states, upon information and belief, that the substance of the complaint pertained to the alleged improper storage of Class 3 flammable liquids, including acetone and isopropanol, in quantities purportedly exceeding flammable storage cabinet capacity limits under 29 C.F.R. § 1910.106. However, Defendant affirmatively states that OSHA closed Complaint No. 1734892 on or about August 18, 2021, with no citations issued and no findings of any violation of any applicable OSHA standard, rule, regulation, or order. The OSHA closing letter confirmed that the inspection did not identify conditions warranting the issuance of citations or the imposition of penalties.
10. Paragraph 10 of the Complaint alleges that, in retaliation for Plaintiff's protected activity in reporting safety violations internally and to OSHA, Defendant terminated Plaintiff's employment on September 24, 2021.
RESPONSE: Denied. Defendant specifically and categorically denies that Plaintiff's termination on September 24, 2021 was in any way motivated by, connected to, or taken in retaliation for Plaintiff's internal safety reports, his filing of OSHA Complaint No. 1734892, or any other activity alleged to be protected under federal or state law. Plaintiff's termination was based solely and exclusively on legitimate, non-retaliatory business reasons — specifically, Plaintiff's documented, repeated violations of Nexford's attendance and tardiness policy, as set forth in Section 4.3 of the Nexford Employee Handbook (revised January 2020), following progressive discipline administered in accordance with Nexford's established human resources policies and procedures. Defendant denies any retaliatory motive, animus, or causal connection between any alleged protected activity and Plaintiff's termination.
11. Paragraph 11 of the Complaint alleges that Defendant issued disciplinary warnings to Plaintiff as a pretext for termination.
RESPONSE: Denied. Defendant denies that any disciplinary action taken against Plaintiff was pretextual, contrived, or motivated by any improper purpose. Defendant admits the following facts regarding the progressive discipline administered to Plaintiff:
(a) On May 24, 2021, Nexford issued a first written warning to Plaintiff for violations of the attendance and tardiness policy set forth in Employee Handbook § 4.3. Specifically, Plaintiff had arrived more than fifteen (15) minutes late for his scheduled shift on four (4) separate occasions within a thirty (30) day period, in contravention of the policy's clear terms.
(b) On August 2, 2021, Nexford issued a final written warning to Plaintiff for continued and ongoing attendance violations. Specifically, Plaintiff incurred three (3) additional instances of unexcused tardiness during the period between June 1, 2021 and July 31, 2021, in further contravention of Employee Handbook § 4.3.
(c) On September 20, 2021, Plaintiff failed to report for his scheduled shift and did not contact his supervisor or the plant to provide notice of his absence, as required under Employee Handbook § 4.3. This constituted an unexcused absence — commonly referred to as a "no call, no show" — under the attendance policy.
(d) On September 24, 2021, a termination meeting was conducted by Plant Manager Frank Bosch and Vice President of Human Resources Catherine Donnelly. During this meeting, Plaintiff was informed that his employment was being terminated due to his cumulative attendance violations and his failure to comply with the terms of the progressive discipline process, including the final written warning issued on August 2, 2021.
Defendant affirmatively states that all disciplinary actions taken against Plaintiff were documented contemporaneously, were reviewed and approved by the Human Resources Department prior to issuance, and were consistent with Nexford's uniform application of its attendance and progressive discipline policies to similarly situated employees across the organization. Defendant denies any allegation that the progressive discipline was a pretext for retaliation or was otherwise improperly motivated.
12. Paragraph 12 of the Complaint alleges that the temporal proximity between Plaintiff's protected activities and his termination demonstrates retaliatory intent.
RESPONSE: Denied. Defendant denies that any temporal relationship between Plaintiff's alleged protected activities and his termination, to the extent one exists, establishes or is probative of retaliatory intent or causation. Any perceived temporal relationship is entirely coincidental and does not, as a matter of law or fact, give rise to an inference of retaliation. Plaintiff's attendance violations were independently documented and warranted progressive discipline irrespective of any activity alleged to be protected under federal or state law. The disciplinary actions were the product of Plaintiff's own conduct and Nexford's consistent application of its workplace policies.
13. Paragraph 13 of the Complaint alleges that, as a result of Defendant's retaliatory conduct, Plaintiff has suffered lost wages, emotional distress, and other damages.
RESPONSE: Denied. Defendant denies that Plaintiff's termination was retaliatory, unlawful, or wrongful in any respect. Defendant further denies that Plaintiff has suffered any cognizable injury, loss, or damage attributable to any act or omission of Defendant, and therefore denies that Plaintiff is entitled to any damages, whether in the form of lost wages, emotional distress, or otherwise.
RESPONSES TO COUNT I — RETALIATORY DISCHARGE (ILLINOIS COMMON LAW)
14. Paragraph 14 of the Complaint purports to incorporate by reference all prior paragraphs.
RESPONSE: Defendant incorporates by reference its responses to all prior paragraphs of this Answer as though fully set forth herein.
15. Paragraph 15 of the Complaint alleges that Plaintiff's termination violated the clearly mandated public policy of the State of Illinois protecting employees who report workplace safety violations.
RESPONSE: Denied. Defendant denies that Plaintiff's termination violated any clearly mandated public policy of the State of Illinois or any other jurisdiction. Plaintiff was terminated for documented and repeated violations of Nexford's attendance policy following progressive discipline, and not for any activity alleged to constitute the exercise of a right protected by public policy. Defendant further denies that Plaintiff's reports, whether internal or to OSHA, played any role whatsoever in the decision to terminate Plaintiff's employment.
16. Paragraph 16 of the Complaint alleges that Plaintiff seeks back pay, front pay, compensatory damages for emotional distress in the amount of $150,000, punitive damages in the amount of $500,000, and attorneys' fees and costs.
RESPONSE: Denied. Defendant denies that Plaintiff is entitled to any relief whatsoever under Count I of the Complaint, including but not limited to back pay, front pay, compensatory damages, punitive damages, attorneys' fees, costs, or any other form of relief. Paragraph 16 states legal conclusions and requests for relief to which no responsive pleading is required; to the extent a response is deemed required, the allegations and requests are denied in their entirety.
RESPONSES TO COUNT II — RETALIATION UNDER SECTION 11(c) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT (29 U.S.C. § 660(c))
17. Paragraph 17 of the Complaint purports to incorporate by reference all prior paragraphs.
RESPONSE: Defendant incorporates by reference its responses to all prior paragraphs of this Answer as though fully set forth herein.
18. Paragraph 18 of the Complaint alleges that Defendant retaliated against Plaintiff for filing OSHA Complaint No. 1734892 in violation of Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c).
RESPONSE: Denied. Defendant categorically denies that Plaintiff's termination was in any way related to, motivated by, or taken in retaliation for Plaintiff's filing of OSHA Complaint No. 1734892 or any other complaint or communication with OSHA. Plaintiff's termination was the result of legitimate, non-retaliatory business reasons, as set forth in detail in Defendant's responses to Paragraphs 10 and 11 above. Defendant further denies that Plaintiff possesses a private right of action under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c). The statutory scheme of Section 11(c) vests enforcement authority exclusively in the Secretary of Labor, and does not create an independent private right of action for individual employees. Defendant further asserts, upon information and belief, that Plaintiff has failed to exhaust the administrative remedies required as a precondition to any claim under Section 11(c), including the filing of a timely complaint with the Secretary of Labor within thirty (30) days of the alleged discriminatory act, as required by 29 U.S.C. § 660(c)(2). Accordingly, Count II fails as a matter of law and should be dismissed.
19. Paragraph 19 of the Complaint alleges that Plaintiff seeks the same categories of damages as set forth in Count I.
RESPONSE: Denied. Defendant denies that Plaintiff is entitled to any relief whatsoever under Count II of the Complaint, for the reasons set forth in Defendant's response to Paragraph 18 and throughout this Answer. To the extent Paragraph 19 states legal conclusions or requests for relief to which no responsive pleading is required, Defendant denies the same.
RESPONSES TO COUNT III — VIOLATION OF THE ILLINOIS WHISTLEBLOWER ACT (740 ILCS 174/1 ET SEQ.)
20. Paragraph 20 of the Complaint purports to incorporate by reference all prior paragraphs.
RESPONSE: Defendant incorporates by reference its responses to all prior paragraphs of this Answer as though fully set forth herein.
21. Paragraph 21 of the Complaint alleges that Defendant retaliated against Plaintiff in violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., for reporting or threatening to report activities of Defendant that Plaintiff had reasonable cause to believe were in violation of a law, rule, or regulation.
RESPONSE: Denied. Defendant denies that Plaintiff's termination was retaliatory or that it violated the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., or any other provision of Illinois law. Plaintiff's termination was based on legitimate, documented reasons wholly unrelated to any activity alleged to be protected by the Illinois Whistleblower Act, as set forth in detail in Defendant's responses to Paragraphs 10 and 11 above. Moreover, the EHS Department's investigation, completed on or about May 3, 2021, concluded that the chemical storage conditions in Building C were in compliance with applicable regulations, and OSHA's on-site inspection of Building C on July 12, 2021 resulted in no citations and no findings of any violation of any applicable OSHA standard, rule, regulation, or order. The OSHA complaint was closed on August 18, 2021 without any adverse finding against Defendant. These facts further undermine any claim that Defendant had a retaliatory motive for terminating Plaintiff's employment.
22. Paragraph 22 of the Complaint alleges that Plaintiff seeks the same categories of damages as set forth in the prior Counts, plus any additional remedies available under 740 ILCS 174/1 et seq.
RESPONSE: Denied. Defendant denies that Plaintiff is entitled to any relief whatsoever under Count III of the Complaint, including but not limited to any remedies provided under the Illinois Whistleblower Act or otherwise. To the extent Paragraph 22 states legal conclusions or requests for relief to which no responsive pleading is required, Defendant denies the same.
GENERAL DENIAL
Defendant denies each and every allegation of the Complaint not expressly admitted herein. To the extent any allegation in the Complaint has not been specifically addressed in this Answer, Defendant denies such allegation. Defendant further reserves the right to amend or supplement this Answer as discovery progresses or as further investigation warrants, in accordance with the Illinois Code of Civil Procedure and the applicable Rules of the Circuit Court of Cook County.
AFFIRMATIVE DEFENSES
Without waiving or diminishing its denials set forth above, and without assuming any burden of proof that would otherwise rest with Plaintiff, Defendant Nexford Industrial Holdings Inc. asserts the following Affirmative Defenses:
FIRST AFFIRMATIVE DEFENSE
Legitimate, Non-Retaliatory Business Reason
Plaintiff's termination on September 24, 2021 was based exclusively on legitimate, non-retaliatory business reasons and was in no way connected to, motivated by, or taken in retaliation for any activity alleged by Plaintiff to be protected under federal or state law. Specifically, Plaintiff was subjected to progressive discipline under Nexford's Employee Handbook § 4.3 (Attendance and Tardiness Policy), as follows:
(a) On May 24, 2021, Nexford issued a first written warning to Plaintiff for violations of the attendance and tardiness policy. Plaintiff had arrived more than fifteen (15) minutes late for his scheduled shift on four (4) separate occasions within a thirty (30) day period, in direct contravention of the attendance policy's clearly stated terms.
(b) On August 2, 2021, Nexford issued a final written warning to Plaintiff for continued and repeated attendance violations. Plaintiff incurred three (3) additional instances of unexcused tardiness during the period between June 1, 2021 and July 31, 2021, notwithstanding the first written warning previously issued.
(c) On September 20, 2021, Plaintiff failed to report for his scheduled shift at the Elgin Facility and did not call in or otherwise provide notice to his supervisor or the plant of his intended absence, constituting an unexcused absence — a "no call, no show" — under Employee Handbook § 4.3.
The termination meeting was held on September 24, 2021, and was conducted by Plant Manager Frank Bosch and Vice President of Human Resources Catherine Donnelly, in accordance with Nexford's established progressive discipline procedures. The decision to terminate Plaintiff's employment was made based solely on Plaintiff's documented attendance violations and his failure to comply with the terms of the progressive discipline imposed upon him. All disciplinary actions taken against Plaintiff were documented contemporaneously, reviewed and approved by the Human Resources Department, and were consistent with Nexford's uniform and even-handed application of its attendance policies to all employees, including similarly situated employees who had no involvement in safety reporting or other allegedly protected activity.
Accordingly, Plaintiff cannot establish that his termination was retaliatory, and his claims under all Counts of the Complaint fail as a matter of law.
SECOND AFFIRMATIVE DEFENSE
Failure to Exhaust Administrative Remedies (as to Count II)
As to Count II of the Complaint, which alleges retaliation in violation of Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), Plaintiff has failed to exhaust the administrative remedies required as a precondition to bringing suit under that provision.
Section 11(c) of the Occupational Safety and Health Act requires that a complaint of retaliation or discrimination be filed with the Secretary of Labor within thirty (30) days of the date of the alleged discriminatory act. See 29 U.S.C. § 660(c)(2). Upon information and belief, Plaintiff did not file a timely complaint with the Secretary of Labor alleging retaliation or discrimination in connection with his termination on September 24, 2021, within the time period required by statute.
Moreover, Section 11(c) of the Occupational Safety and Health Act does not create or provide a private right of action independent of the administrative proceedings that must be initiated and prosecuted by the Secretary of Labor. The enforcement mechanism under Section 11(c) is vested exclusively in the Secretary of Labor, who, upon receipt of a complaint, is authorized to investigate and, if appropriate, bring an action in United States District Court on behalf of the complainant. Individual employees may not maintain an independent private action under Section 11(c). See, e.g., Taylor v. Brighton Corp., 616 F.2d 256, 263–64 (6th Cir. 1980); Donovan v. Diplomat Envelope Corp., 587 F. Supp. 1417, 1424 (E.D.N.Y. 1984).
Accordingly, Count II of the Complaint should be dismissed in its entirety for failure to exhaust administrative remedies and/or for lack of a cognizable private right of action.
THIRD AFFIRMATIVE DEFENSE
After-Acquired Evidence.  In the event that Defendant discovers, through the course of discovery or otherwise, evidence of wrongdoing, misconduct, dishonesty, policy violations, or other grounds for termination on the part of Plaintiff that were not known to Defendant at the time of Plaintiff's termination on September 24, 2021, Defendant asserts the after-acquired evidence doctrine as a complete or partial limitation on any potential remedies that might otherwise be available to Plaintiff.
Under the United States Supreme Court's decision in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), and its progeny as applied in Illinois courts, after-acquired evidence of employee misconduct or other just cause for termination may limit or entirely eliminate certain categories of remedies, including but not limited to front pay, reinstatement, and back pay accruing after the date on which the employer discovered or reasonably should have discovered the evidence of misconduct. Defendant expressly reserves the right to supplement this defense upon completion of discovery.
FOURTH AFFIRMATIVE DEFENSE
Failure to Mitigate Damages
Plaintiff has failed to exercise reasonable diligence to mitigate his damages by seeking and obtaining comparable employment following his termination on September 24, 2021. Under well-established principles of Illinois law, a plaintiff who has been terminated from employment has a duty to exercise reasonable diligence to find suitable, comparable employment in order to minimize the damages attributable to the alleged wrongful act. To the extent Plaintiff failed to actively search for and accept comparable employment opportunities, or unreasonably declined such opportunities, his recoverable damages, if any, should be reduced accordingly.
Any recovery by Plaintiff, should liability be established, which Defendant expressly denies, must be reduced by the amounts that Plaintiff actually earned, or could have earned through the exercise of reasonable diligence, in mitigation of his alleged damages during the period following his termination.
FIFTH AFFIRMATIVE DEFENSE
No Punitive Damages
Plaintiff's claim for punitive damages in the amount of $500,000 is unsupported by the facts alleged in the Complaint and is not permitted as a matter of law. Defendant's conduct in terminating Plaintiff's employment was not willful, wanton, malicious, fraudulent, or undertaken with reckless disregard for Plaintiff's rights or well-being. To the contrary, Defendant's actions were taken in good faith, in accordance with its established policies and procedures, and for legitimate business reasons.
Furthermore, punitive damages are not available as a remedy under the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., which provides specific statutory remedies that do not include punitive damages. Punitive damages are likewise not available under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), which provides for reinstatement, back pay, and compensatory damages, but does not authorize the award of punitive damages.
To the extent punitive damages may theoretically be available under the Illinois common law tort of retaliatory discharge, as alleged in Count I, Defendant's conduct does not rise to the level of willful, wanton, or malicious behavior required to support such an award under Illinois law. The undisputed facts establish that Plaintiff was terminated following a documented course of progressive discipline for attendance violations, and there is no factual basis for an award of punitive damages.
SIXTH AFFIRMATIVE DEFENSE
OSHA Found No Violation
OSHA conducted an on-site inspection of Building C of the Elgin Facility on July 12, 2021, in response to Plaintiff's OSHA Complaint No. 1734892. Following its inspection, OSHA closed the complaint on or about August 18, 2021, without issuing any citations, without imposing any penalties, and without making any findings of violation of any applicable OSHA standard, rule, regulation, or order.
This finding by the federal agency charged with enforcement of workplace safety standards is directly relevant to, and materially undermines, Plaintiff's claims that his termination was motivated by retaliation for reporting bona fide safety violations. The fact that neither Nexford's own EHS Department (which completed its internal investigation on May 3, 2021) nor OSHA (which completed its inspection and closed the complaint on August 18, 2021) found any violation of applicable safety regulations undercuts Plaintiff's contention that Defendant had a retaliatory motive to terminate Plaintiff for reporting purported safety hazards.
SEVENTH AFFIRMATIVE DEFENSE
Reservation of Additional Defenses
Defendant reserves the right to assert additional affirmative defenses as may become apparent or appropriate through the course of discovery, motion practice, and further investigation of the facts and circumstances underlying this litigation. Discovery has not yet commenced, and Defendant has not had the opportunity to fully investigate all facts relevant to this matter. This Answer is filed without waiver of any defense, affirmative or otherwise, that may be available to Defendant, including but not limited to defenses based upon:
(a) statutes of limitations or statutes of repose;
(b) laches;
(c) estoppel, including equitable estoppel and judicial estoppel;
(d) waiver;
(e) unclean hands;
(f) failure to state a claim upon which relief can be granted;
(g) setoff and recoupment;
(h) comparative fault or contributory negligence;
(i) lack of standing; and
(j) any other applicable legal or equitable defense.
Defendant's assertion or omission of any particular defense in this Answer shall not be construed as a waiver of any defense, right, or privilege available to Defendant under applicable law.
PRAYER FOR RELIEF
WHEREFORE, Defendant Nexford Industrial Holdings Inc. respectfully requests that this Honorable Court enter an Order:
1.  Dismissing Plaintiff's Complaint in its entirety, with prejudice, and on the merits;
2.  Entering judgment in favor of Defendant Nexford Industrial Holdings Inc. and against Plaintiff Darren K. Maciejewski on all Counts of the Complaint;
3.  Awarding Defendant its costs of suit and reasonable attorneys' fees to the extent permitted by applicable law;
4.  Denying Plaintiff any and all relief requested in the Complaint; and
5.  Granting such other and further relief as this Court deems just, equitable, and proper.
Respectfully submitted,
NEXFORD INDUSTRIAL HOLDINGS INC.,
By its Attorneys,
CALDERWOOD & HARKNESS LLP
By: ________
Bernard Crawford (ARDC No. 6312487) CALDERWOOD & HARKNESS LLP 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 Telephone: (312) 555-4200 Facsimile: (312) 555-4201
Email: bcrawford@calderwoodharkness.com
Attorneys for Defendant Nexford Industrial Holdings Inc.
Date: April 18, 2022
CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on April 18, 2022, a true and correct copy of the foregoing Answer and Affirmative Defenses of Defendant Nexford Industrial Holdings Inc. was served upon counsel for Plaintiff at the following address:
Gerald P. Hess Hess & Loughlin, P.C. 3412 Harlem Avenue, Suite 205 Berwyn, Illinois 60402 Telephone: (708) 555-3100
Email: ghess@hessloughlin.com
by depositing the same in the United States Mail, first class, postage prepaid, and by transmitting a copy via electronic mail to the email address set forth above, on this 18th day of April, 2022.
________________________________________
Bernard Crawford
DARREN K. MACIEJEWSKI,
<!-- indent:1 -->Plaintiff,<!-- /indent --> | Case No. 2022-L-002847
v. | Hon. Helena R. Vasquez-Torres
NEXFORD INDUSTRIAL HOLDINGS INC.,
<!-- indent:1 -->Defendant.<!-- /indent -->

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.

RESPONSES TO GENERAL AND INTRODUCTORY ALLEGATIONS OF THE COMPLAINT

RESPONSES TO FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

GENERAL DENIAL

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

SECOND AFFIRMATIVE DEFENSE

THIRD AFFIRMATIVE DEFENSE

FOURTH AFFIRMATIVE DEFENSE

FIFTH AFFIRMATIVE DEFENSE

SIXTH AFFIRMATIVE DEFENSE

SEVENTH AFFIRMATIVE DEFENSE

PRAYER FOR RELIEF

NEXFORD INDUSTRIAL HOLDINGS INC.,

CALDERWOOD & HARKNESS LLP

CERTIFICATE OF SERVICE

DARREN K. MACIEJEWSKI,

NEXFORD INDUSTRIAL HOLDINGS INC.,

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