author: PETERSON, District Judge.

text:
    Matthew SCHAEFER, et al., Plaintiffs-Appellants, v. UNIVERSAL SCAFFOLDING & EQUIPMENT, LLC, et al., Defendants-Appellees.
    No. 15-2393
    United States Court of Appeals, Seventh Circuit.
    Argued January 14, 2016
    Decided October 7, 2016

      Andrew Gerard Toennies, Lashly & Baer, P.C., St. Louis, MO, for Plaintiffs-Appellants.
    Christopher D. Baucom, James Stock-berger, Armstrong Teasdale, St. Louis, MO, for Defendant-Appellee Universal Scaffolding & Equipment, LLC.
    Stephen S. Weiss, Laura L. Milnichuk, David E. Schroeder, Tribler Orpett & Meyer, P.C., Chicago, IL, for Defendant-Appellee Brand Energy Services, LLC.
    Sean Malone Sullivan, Daley Mohan Groble, P.C., Chicago, IL, for Defendant-Appellee Dynegy Midwest Generation, LLC.
    Before FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.

       Of the Western District of Wisconsin, sitting by designation.

   PETERSON, District Judge.

This diversity case requires us to review the district court’s application of Illinois tort law, particularly concerning spoliation of evidence. Matthew Schaefer, a construction worker, alleges that he was seriously injured when a defective piece of scaffolding fell and struck him on the head. So, in addition to bringing a workers’ compensation claim against his employer, Schaefer sued the scaffolding manufacturer, Universal Scaffolding & Equipment, LLC. When he learned that the piece of scaffolding that hit him had been lost, he added claims for negligent spoliation of evidence against his employer, Brand Energy Services, LLC, and against Dynegy Midwest Generation, LLC, the company that had engaged Brand to build scaffolding at a Dynegy power plant. Schaefer also alleged claims for construction negligence and failure to warn against Dynegy. Schaefer’s wife joined his claims for negligent spoliation and brought claims for loss of consortium against each of the defendants.

In a series of decisions, the district court granted summary judgment for defendants. At the heart of the case is the missing piece of scaffolding, which had been lost while in Dynegy’s possession, before anyone had tested it for defects. The district court held that without the missing piece, Schaefer could not prove his product liability claims against Universal. The district court also held that Dynegy was not liable for any defects or negligence in the construction of the scaffolding. We affirm these decisions.

But the district court also held that Schaefer and his wife could not prove their spoliation claims either, reasoning that because the Schaefers were unable to prove that the missing piece was in fact defective, they would be unable to prove that the loss of the piece caused them any damage. The district court here relied on an incorrect statement of Illinois spoliation law, which does not require a plaintiff to prove that he would have won his case but for the spoliation. A spoliation claim under Illinois law requires only that the plaintiff show a “reasonable probability” of success on the underlying suit. Because the Schae-fers adduced evidence from which a jury could make this finding—the batch of scaffolding used on the Dynegy project had a large number of defective pieces—the grant of summary judgment on the spoliation claims was improper. Accordingly, we reverse the grant of summary judgment on the spoliation claims against Brand and Dynegy.

I. Background

Matthew Schaefer was an employee of Brand Energy Services, LLC, which had been engaged by Dynegy Midwest Generation, LLC, to erect scaffolding at a Dynegy power plant. Under its contract with Dyne-gy, Brand had complete and authoritative control over the scaffold construction. Ryan Wampler was Brand’s project manager. Dynegy also had a safety manager at the power plant, Don Watson. Brand acquired the scaffold components from Universal Scaffolding & Equipment, LLC, but Dynegy paid for the scaffolding and owned it.

The Universal scaffolding used a “cup-lock” system in which metal' tabs on the horizontal bars, called “ears,” would fit into a cup attached to the vertical members. A second cup would be locked down onto the ears to hold the components in place. Brand workers had difficulties with the Universal scaffolding components because some of the bars were not the proper length and some had bent ears, and those faulty components would not readily lock into the cups. Eventually the problem became prevalent enough that Wampler had his crew inspect the new Universal components as they arrived and then mark and set aside the defective pieces.

At the time of Schaefer’s accident, November 2008, Schaefer and other Brand employees, including Maynard Hudson, were assembling scaffolding. Schaefer was a level below Hudson. A laborer would hand Schaefer a piece- of scaffolding, and Schaefer would hand it up to Hudson, who would assemble the pieces. Hudson placed a three-foot, six-inch horizontal bar in the cups; but when he placed the next bar, the three-foot, six-inch bar popped out of its cups, fell, and struck Schaefer on the head. Schaefer suffered serious injuries to his neck, back, shoulders, and arms.

Precisely what caused the bar to fall is sharply disputed. Neither Schaefer nor Hudson noticed any defects in the bars, although during the assembly process they did not have time to look carefully. Wam-pler investigated the accident, and he reported that Hudson had knocked the bar with his hip or tool bag; but Hudson denies this. Schaefer contends that the root cause was Universal’s defective scaffolding, but proving that theory is problematic because of what happened to the bar.

Immediately after Schaefer’s accident, Watson (Dynegy’s safety manager) asked Wampler to retrieve the bar that struck Schaefer. Watson stored the bar in his office at the power plant. When he moved offices in December 2009, he left the bar behind, and it was eventually moved to a storage room in the power plant. The last time that anyone saw the bar was in September or October of 2010, when a safely worker saw it in the storage room. By November 2011, the first time that Schae-fer sought to examine the bar as part of discovery in this case, it had been lost.

Schaefer filed a workers’ compensation claim in March 2009. He filed a discovery action against Brand in Illinois state court in December 2009. Brand never responded to the suit or to Schaefer’s interrogatories asking who had sold Brand the scaffolding used at the construction site and what the company had done with the scaffolding after finishing the project. Schaefer did not press the discovery action.

In June 2010, Schaefer and his wife, Cynthia, filed a complaint against Universal in state court, bringing claims for negligence, strict liability for product defect, strict liability for failure to warn, and loss of consortium. (Both Matthew and Cynthia Schaefer are plaintiffs and appellants, but for simplicity, we will refer to them collectively as “the Schaefers,” and we will refer to Matthew as “Schaefer.”) Universal removed the case to federal court on the basis of diversity. Two amended complaints later, Schaefer had six causes of action under Illinois law: three against Universal for negligence (product liability), strict liability for product defect, and strict liability for failure to warn; two against Dynegy for negligence and negligent spoliation; and one against Brand for negligent spoliation. Schaefer’s wife also brought three claims of her own: one against Dyne-gy for negligent spoliation; one against Brand for negligent spoliation; and one against all defendants for loss of consortium.

The district court granted summary judgment to defendants on all claims in a series of decisions issued over the course of two years. In June 2013, a now-retired district judge denied Brand’s motion for summary judgment on the spoliation claim against it. In February 2014, the district judge who took over the case denied cross-motions from the Schaefers and from Brand and Dynegy for summary judgment on the spoliation claims, but he granted Universal’s motion for summary judgment on all claims against it.

The parties then consented to have a magistrate judge preside over the remainder of the case (i.e., the claims against Dynegy and Brand). In January 2015, the magistrate judge granted Dynegy’s motion for summary judgment on Schaefer’s negligence claim against it. A month later, as the case neared trial on the remaining claims for spoliation and loss of consortium, the magistrate judge granted Brand and Dynegy’s joint motion in limine to exclude all evidence and testimony that the missing scaffolding bar was defective. At the magistrate judge’s invitation, Brand and Dynegy renewed their motions for summary judgment on the spoliation and loss of consortium claims. The magistrate judge,-granted Brand and Dynegy’s renewed motion and the case was over. This appeal followed.

II. Discussion

The Schaefers contend that the district court erred in entering summary judgment on each of their claims. We review the district court’s grant of summary judgment de novo, examining the record in the light most favorable to the Schaefers. Carson v. ALL Erection & Crane Rental Corp., 811 F.3d 993, 995 (7th Cir. 2016). Under Federal Rule of Civil Procedure 56, summary judgment is .appropriate only when there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law.

A. Product liability and negligence claims

We begin with Schaefer’s product liability claims against Universal. Relying on Shramek v. General Motors Corp., Chevrolet Motor Division, 69 Ill.App.2d 72, 216 N.E.2d 244 (1966), and its progeny, the district court concluded that product liability claims fail under Illinois law when the plaintiff does not present the allegedly defective product itself, or at least other admissible evidence that the product was defective. On appeal, Schaefer contends that the district court erred in concluding that he lacked evidence that the bar was defective. We disagree.

Under Illinois law, plaintiffs in product-liability actions “must identify the manufacturer of the product and demonstrate a causal relationship between the injury and the manufacturer’s product.” Tragarz v. Keene Corp., 980 F.2d 411, 418 (7th Cir. 1992) (citing Zimmer v. Celotex Corp., 192 Ill.App.3d 1088, 1091, 140 Ill. Dec. 230, 549 N.E.2d 881, 883 (1989)). As part of proving a causal relationship, Schaefer must adduce evidence that the bar was, in fact, defective. This evidence can be direct or circumstantial, but Schae-fer must establish that- a defect in the scaffolding caused the accident. Shramek, 216 N.E.2d at 247; see also Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App.3d 872, 874, 178 Ill.Dec. 425, 604 N.E.2d 948, 950 (1992) (“Proper circumstantial evidence includes either proof that tends to exclude other extrinsic causes or expert testimony that the product was defective.”). The mere fact that an accident occurred does not establish causation. Shramek, 216 N.E.2d at 247.

Schaefer relies on deposition testimony from four witnesses, arguing that this testimony creates a genuine dispute of material fact as to whether the bar was defective. But, these witnesses merely confirm that workers at the construction site had identified some defective scaffolding pieces. The record does not establish that every piece of scaffolding at the jobsite was defective, and there is no evidence in the record that the specific bar that caused Schaefer’s injury was defective. And one of Schaefer’s own experts, Geno Maniago, conceded at his deposition that even if that specific bar had been defective, the bar could have been damaged at the work site, which would mean that the defect was not attributable to Universal.

Without the bar itself, which was lost before it was analyzed, Schaefer cannot prove that Universal’s defective product caused his injuries, and thus he cannot succeed on his product liability claims against Universal. At most, he has adduced expert opinions that the bar that hit him might have been one of the defective ones. But this is not enough to get the case to a jury. See Sanchez, 178 Ill.Dec. 425, 604 N.E.2d at, 950 (“[Liability in a products liability action cannot be based on mere speculation, guess, or conjecture, and the circumstances shown must justify an inference of probability as distinguished from mere possibility.”); Phillips v. U.S. Waco Corp., 163 Ill.App.3d 410, 419, 516 N.E.2d 670, 675, 114 Ill.Dec. 515 (1987) (“Without an examination of the scaffold itself to determine if the collapse was a result of a preexisting defect, Phillips could never prove, directly or inferentially, a claim based in negligence or strict liability.”). The district court properly granted summary judgment to Universal on Schae-fer’s product liability claims. And, consequently, Cynthia Schaefer’s loss of consortium claim against Universal necessarily fails, and the district court properly granted summary judgment oh that claim,, too.

This leaves Schaefer’s negligence claim against Dynegy. As a general rule of Illinois law, a party who hires an independent contractor is not liable for the acts of the independent contractor. Wilfong v. L.J. Dodd Const., 401 Ill.App.3d 1044, 1060, 341 Ill.Dec. 301, 930 N.E.2d 511, 526 (2010). Dynegy hired Brand to build the scaffolding, so if the general rule applies, Dynegy is not liable for the defective construction. On appeal, Schaefer gives three reasons (the same reasons he gave to the district court) why the general rule should not apply. We are not persuaded.

Schaefer relies first on the “retained control” exception to the general rule, as articulated in § 414 of the Restatement (Second) of Torts, which Illinois has adopted. Section 414 provides:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Restatement (Second) of Torts § 414 (1965). Schaefer contends that Dynegy retained enough control over Brand’s work that Dynegy owed him a duty to exercise reasonable care over the scaffolding project.

Schaefer argues that Dynegy exercised control through Watson, Dynegy’s on-site safety director at the power plant. According to Schaefer, Watson “would walk around the job site, talk to workers and try to correct unsafe things.” Appellants’ Brief, at 35. Watson’s authority, according to Schaefer, was conferred through the Master Services Agreement (MSA), under which “Dynegy reserve[d] the right to inspect and deny access or use of any equipment or substance brought on site.” Id. at 9 (citing Dkt. 197-6). The MSA also required Brand to participate in Dynegy’s safety program.

But Watson’s work and Dynegy’s safety program establish only that Dynegy had a right to inspect and to require general safety. The comments to § 414 make clear that retaining these general rights do not give rise to liability under the retained control exception. As comment C provides:

In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

Restatement (Second) of Torts § 414, Comment C.

Schaefer contends that Watson’s activities are comparable to those that were sufficient to show “retained control” in Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill.App.3d 1051, 245 Ill.Dec. 644, 728 N.E.2d 726 (2000). But in Bokodi, “defendants’ actions indicated a substantial level of involvement in the incidental activities at the work site.” 245 Ill.Dec. 644, 728 N.E.2d at 735. Watson’s safety inspection activities, which extended to the entire plant and not just to the scaffolding project, did not get him involved in incidental activities of the scaffold construction. The contract between Dynegy and Brand expressly gave Brand control:

Contractor is, and shall continue to be, an independent contractor, and any provisions of this Agreement or any Purchase Order which may appear to give Dynegy the right to direct Contractor as to details of performing any Services, or to exercise a measure of control over Contractor’s performance of the Services, shall be interpreted to mean that Contractor will follow the instructions of Dynegy with respect to the results of the Services achieved only and not in the means whereby the Services are to be accomplished. Contractor shall have complete and authoritative control as to the details of performing the Services.

Dkt. 197-6, at 12 (MSA, § A.23) (emphasis added). Other sections of the contract gave Dynegy the right to inspect Brand’s work and to halt work when unsafe, but the contract did not give Dynegy control over operational details of the scaffold construction. Without control over operational details, the right of inspection and the authority to stop work is insufficient to establish “retained control” under § 414 of the Restatement. Moiseyev v. Rot’s Bldg. & Dev. Inc., 369 Ill.App.3d 338, 351, 308 Ill.Dec. 46, 860 N.E.2d 1128, 1139 (2006). And when, as in this case, the evidence establishes only the right to inspect, to halt work, and to make safety suggestions, the question is decidable as a matter of law. Id. 308 Ill.Dec. 46, 860 N.E.2d at 1139-40.

Second, Schaefer contends that Dynegy, as the landowner, is liable for unsafe conditions on its premises. But Schaefer devotes only a scant paragraph to the issue.He cites no authority and simply asserts that the ill-fitting scaffolding components constitute a condition of the land. Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal authority. United States v. Hook, 471 F.3d 766, 775 (7th Cir. 2006).

But Schaefer’s argument would fail even if not waived. Illinois courts have adopted §§ 343 and 343A of the Restatement (Second) of Torts for purposes of evaluating premises liability claims. Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1015 (7th Cir. 2000), as amended on denial of reh’g and reh’g en banc, (June 1, 2000) (citing Genaust v. Ill. Power Co., 62 Ill.2d 456, 468, 343 N.E.2d 465, 472 (1976)). These provisions impose liability on landowners, under certain circumstances, for harm caused “by a condition on the land.” Restatement (Second) of Torts § 343. But not everything located on a landowner’s property is a “condition on the land.” See, e.g., Gregory v. Beazer E., 384 Ill.App.3d 178, 191, 322 Ill.Dec. 926, 892 N.E.2d 563, 577 (2008) (asbestos blankets and gloves were not conditions on the land); Quinton v. Buffer, 221 Ill.App.3d 466, 472, 164 Ill. Dec. 88, 582 N.E.2d 296, 300 (1991) (a flammable 55-gallon drum that exploded was not a condition on the land). Schaefer was not injured by already-assembled scaffolding, which could arguably be a condition on the land. He alleges that he was injured as a result of an activity taking place on the Dynegy property, one that involved a defective piece of equipment. The cause of Schaefer’s injury is unlike those things that constitute conditions on the land, so premises liability is a poor fit for-Schaefer’s negligence claim against Dy-negy.

Schaefer’s third basis for holding Dynegy liable is a “failure to warn” theory. The Illinois Supreme Court has applied § 388 of the Restatement (Second) of Torts to failure to warn claims. See Busch v. Graphic Color Corp., 169 Ill.2d 325, 348, 214 Ill.Dec. 831, 662 N.E.2d 397, 409 (1996). Under § 388, in certain circumstances, one who provides chattel for another to use has a duty to warn of known defects in the chattel. Schaefer contends that Dynegy should have warned him about the defective scaffolding. The district court held that Schaefer could not proceed under this theory of negligence because he had failed to adduce evidence of any unequal knowledge between Schae-fer and Dynegy. The district court was correct.

Under Illinois law, “[a] duty to warn exists where there is unequal knowledge, actual or constructive of a dangerous condition, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given.” Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 186, 262 Ill.Dec. 815, 766 N.E.2d 1118, 1123 (2002) (citations, internal quotation marks, and alterations omitted). Schaefer’s knowledge of the defective scaffolding was undisputedly equal to, and likely much greater than, Dynegy s knowledge. By the time of the accident, Brand workers had already had several problems with the scaffolding, Brand’s project supervisor Wampler (Schaefer’s boss) had directed Brand workers to go through new shipments of scaffolding, mark the bad pieces, and set them aside. Wampler had also talked to his crews about the bad scaffolding. Schaefer himself testified that he had noticed problems with the scaffolding on the jobsite. As for the specific bar that struck him, Schaefer handled it when he passed it up to Hudson to put it into place. Because Schaefer had at least as much knowledge as Dynegy had about the bar’s defects, Schaefer’s failure to warn theory necessarily fails. And with that, Schaefer’s negligence claim against Dynegy is doomed, along with his wife’s related loss of consortium claim.

In sum, based on undisputed facts of the record, the district court properly granted summary judgment on Schaefer’s product liability claims against Universal and his negligence claim against Dynegy.

B. Spoliation claims

The Illinois Supreme Court recognized a cause of action for negligent spoliation of evidence in Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 193, 209 Ill.Dec. 727, 662 N.E.2d 267, 270 (1996), as modified on denial of reh’g, (June 22, 1996). In that case, the plaintiff, Boyd, was injured in an explosion that he alleged was caused by a defective propane heater. Insurance company employees took the heater for testing to determine the cause of the explosion, but the heater was lost while in the insurance company’s possession, before it had been tested for defects. Boyd brought spoliation claims against the insurance company, which the insurance company moved to dismiss. The case was certified to the Illinois Supreme Court, which held for the first time that Illinois recognizes a claim for negligent spoliation, and that Boyd had stated such a claim, even though he would not be able to prove that the heater was actually defective. Boyd, 209 Ill.Dec. 727, 652 N.E.2d at 272.

Under Boyd, spoliation is not a separate, new tort, but a species of negligence. Accordingly, a negligent spoliation claim requires the plaintiff to prove the traditional four elements of negligence: a duty to preserve the evidence; breach of that duty by loss of the evidence; that the loss proximately caused the plaintiffs inability to prove his underlying claim; and actual damages as a result. Id. 209 Ill.Dec. 727, 662 N.E.2d at 270; see also Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶ 26, 365 Ill.Dec. 656, 979 N.E.2d 22, 27.

In this case, the district court twice denied motions for summary judgment on the Schaefers’ spoliation claims. A-8-16. The district court held that both Brand and Dynegy had a duty to preserve the scaffolding piece, but that questions of fact about the other elements precluded summary judgment for either side. As trial approached, Brand and Dynegy filed a joint motion in limine to exclude any evidence or argument that the scaffolding was defective. Dkt. 220. The motion prompted the district court (now with Magistrate. Judge Frazier presiding) to revisit the proximate cause issue. The district court granted the motion in limine, reasoning that without the missing scaffolding piece, the Schaefers could never prove by a preponderance of the evidence that the loss of the bar caused them to lose their underlying claims. With that eviden-tiary ruling made, the Schaefers’ spoliation claims were doomed. The court invited Brand and Dynegy to renew their motions for summary judgment and granted them.

On appeal, the Schaefers contend that the district court applied the wrong legal standard to their spoliation claims, which led the court to incorrectly grant the motion in limine. The Schaefers contend that they had adduced admissible evidence that the bar was defective, and thus they should have been allowed to proceed to trial on their negligent spoliation claims. Brand and Dynegy disagree, and they contend that the district court also erred in its earlier decisions that they had a duty to preserve the bar. We may affirm a district court’s grant of summary judgment based on any ground that the record supports, so long as the non-moving party had the opportunity to contest the issue. Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir.), cert. denied, — U.S.-, 136 S.Ct. 319, 193 L.Ed.2d 229 (2015), Accordingly, we consider both issues, duty-and causation.

1. Duty

Illinois law imposes no general duty to preserve evidence, but a duty arises if two conditions are satisfied. First, a “relationship” condition: the duty must “arise[ ] by agreement, contract,' statute, special circumstance, or voluntary undertaking.” Dardeen v. Kuehling, 213 Ill.2d 329, 336, 290 Ill.Dec, 176, 821 N.E.2d 227, 231 (2004). Second, a “foreseeability” condition: the duty to preserve must “ex-tendí] to the evidence at issue—ie., whether a reasonable person should have foreseen that the evidence was material to a potential civil action.” Id. A plaintiff must satisfy both the relationship condition and the foreseeability condition to prove that a duty to preserve evidence existed. Id.

The foreseeability condition is straightforward here: both Brand and Dynegy knew that the bar was involved in a serious workplace injury, which is. why Dyne-gy’s Watson sought to preserve it in the first place. Dynegy contends that, the foreseeability condition had “expired,” so to speak, by the time Dynegy lost, the bar in October 2010, because Schaefer had not asked Dynegy for the bar by then, and no one in. Dynegy’s position would think that the bar mattered anymore. But that is merely conclusory, We agree with the district court that Dynegy, having collected the bar because of its role in a workplace accident, could not simply assume after less than two years that the bar was no longer pertinent to a personal injury claim.

The relationship condition is more complex. As one district court in this circuit has recently observed, “Illinois courts have not precisely • defined what constitutes a ‘special-circumstance,’ but ‘something more than possession and control are required, such as a request by the plaintiff to preserve the evidence and/or the defendant’s segregation of the evidence for the plaintiff[’]s benefit.’” Hart v. Amazon.com, Inc., No. 15-CV-1217, 2015 WL 8489973, at *6 (N.D. Ill. Dec. 8, 2015) (quoting Martin, 365 Ill.Dec. 656, 979 N.E.2d at 31). It would be an understatement to say that this area of Illinois law is not governed by bright-line rules. But Martin makes clear that mere possession of the evidence is not enough to impose a duty. 365 Ill.Dec. 656, 979 N.E.2d at 31-32. Nor is being the plaintiffs employer, or being a potential litigant. Id. But a request by a plaintiff to preserve the evidence, or a defendant’s segregation of the evidence for the plaintiff, are recognized as special circumstances. Id.

For ■ Brand, those special circumstances are present, although in a factually complicated way. Brand did not take long-term possession of the bar. But after the accident, Wampler, Brand’s project supervisor, collected the bar and delivered it to Watson, Dynegy’s safety supervisor, for safekeeping because of its role in Schae-fer’s accident. Schaefer filed a discovery action against Brand in December 2009. His discovery requests did not ask Brand to produce the bar itself, but Schaefer was plainly seeking information about the bar, which at the time Brand knew was in Dynegy’s possession. Brand contends now that Schaefer’s discovery complaint was legally unsound, and that Brand was entitled to ignore it. Maybe so, but the potential infirmities of the discovery action are beside the point. What matters is that a little more than a year after Schaefer’s accident, Brand knew that Schaefer was looking to Brand for information about the allegedly defective bar, which Brand had collected and delivered to Dynegy to preserve. These facts bring the case close to Miller v. Gupta, 174 Ill.2d 120, 129, 220 Ill.Dec. 217, 672 N.E.2d 1229, 1233 (1996), where analogous special circumstances satisfied the relationship prong. In Miller, the plaintiffs attorney requested X-rays from the plaintiffs doctor, and the doctor collected them. But the cleaning staff inadvertently tossed them out before copies were provided to plaintiffs attorney. The district court here was right: having collected the bar, and knowing that Schaefer was looking for it, Brand had a duty to preserve it.

We reach the same conclusion with regard to Dynegy because Dynegy voluntarily assumed a duty to preserve the bar. “A voluntary undertaking requires a showing of affirmative conduct by the defendant evincing defendant’s intent to voluntarily assume a duty to preserve evidence.” Martin, 365 Ill.Dec. 656, 979 N.E.2d at 28. Dynegy knew that Schaefer had been injured when the bar fell on him, and Watson asked a Brand employee to retrieve the bar so that Watson could store it in his office so that “there wasn’t any issue later.” And Watson recognized the potential importance of the bar to Schae-fer’s case: sometime after the accident, Watson went to the internet to find out how much the bar weighed and what amount of force it had when it fell and struck Schaefer. Dynegy took affirmative steps to take possession of the bar, and to save it for potential litigation. Thus, Dyne-gy’s voluntary undertaking satisfies the relationship condition of the duty analysis.

2. Causation

We turn now to whether the district court applied the correct standard for causation, and whether under the correct standard, the Schaefers had raised a genuine issue of fact regarding whether the loss of the bar was the proximate cause of Schaefer’s inability to prove his underlying negligence claims.

Causation in a spoliation case is a subtle concept. Under the principles set out in Boyd, the spoliation plaintiff has to prove that the loss of the evidence would cause him to lose the underlying case. 209 Ill. Dec. 727, 652 N.E.2d at 271. This showing prevents a spoliation claim from succeeding on the loss of some inconsequential evidence. But, as explained in a critical footnote in Boyd, the spoliation plaintiff does not have to prove that he would have actually won his case with the missing piece:

A plaintiff need not show that, but for the loss or destruction of the evidence, the plaintiff would have prevailed in the underlying action. This is too difficult a burden, as it may be impossible to know what the missing evidence would have shown.

Id. 209 Ill.Dec. 727, 652 N.E.2d at 271 n.2. If the spoliation plaintiff had to prove that he would have won the underlying suit if he had the missing evidence, he would be in a hopeless Catch-22: if he could prove that he would have won the underlying case even without the lost evidence, then he could not show that the loss of that evidence actually harmed him. In other words, it would be impossible for the spoliation plaintiff to show both that without the lost evidence he would necessarily lose the underlying case, and that with it, he would win.

So, to prevail on their spoliation claims, the Schaefers must make two showings. First, they must show that the loss of the scaffolding piece would cause them to lose their underlying suit. Id. And second, they must .show that if they had the scaffolding piece, they would have a “reasonable probability” of winning. Id. But “reasonable probability” is less than proof of success by a preponderance of the evidence, because that is the standard required to show that they would have won the underlying suit.

Boyd makes clear that the burden is on the Schaefers to make these showings; there is no evidentiary presumption that negligently lost evidence is favorable to the plaintiff. Id. at 273, 652 N.E.2d 267, 270. Although the burden is on the plaintiff, if a defendant shows that the plaintiff could not win the. underlying suit even with the lost evidence, then the spoliation claim necessarily fails. Id. 209 Ill.Dec. 727, 652 N.E.2d at 271 n.2. Causation in a negligence case is generally question for the trier of fact, unless there is no material dispute or only one conclusion is clearly evident. Williams v. Univ. of Chi. Hosps., 179 Ill.2d 80, 88, 227 Ill.Dec. 793, 688 N.E.2d 130, 134 (1997).

The magistrate judge in this case held the Schaefers to the wrong standard. The magistrate judge correctly acknowledged that to succeed on the spoliation claims, Boyd “would require plaintiff to show a reasonable probability of success” on the underlying negligence claims. A-42. But the magistrate judge conflated reasonable probability of success with proof by a preponderance of the evidence:

And plaintiff must prove a reasonable probability of success on the merits. Now I have a hard time distinguishing in my mind any qualitative difference between reasonable probability of success on the merits- and the ability to show a preponderance of the evidence. Both mean more likely than not.

A-40. The magistrate judge also incorrectly paraphrased the holding in Boyd: “Or I think another way that it was put in Boyd is that, but for the loss of the scaffolding they would have been able to succeed on their claims.” A-42. This contradicts the actual holding in Boyd, which is that a spoliation plaintiff need not prove that he would have succeeded on the underlying claim but for the loss of the evidence.

Applying the proper standard, and viewing the record in the light most favorable to the Schaefers (as we must on the defense motions for summary judgment), the Schaefers have adduced sufficient evidence to put the issue of causation into genuine dispute. There was a pervasive problem with the scaffolding at the Dyne-gy jobsite, and workers were having ongoing problems with the horizontal bars popping out of cups. The problem got so bad that Brand’s project supervisor had workers go through each new shipment of scaffolding and set aside the bad pieces. No one has provided testimony that the bar that hit Schaefer was actually defective. Several employees testified that they did not notice any defects in the bar that fell on Schaefer, but there is ample testimony that the defects would not be readily apparent after only a quick glance, which is all that Schaefer and his colleagues had time for while assembling the scaffolding, Hudson, the employee who installed the bars involved in the accident, testified that he did not bump any of them, despite Wampler’s report. If the jury were to believe Hudson, a reasonable jury could eliminate his negligence as a cause of the accident. It may be impossible for Schae-fer to prove his negligence case without the missing evidence, but the finger of suspicion points distinctly toward the missing bar,' just as it pointed to the missing propane heater in Boyd. If Schaefer’s experts had had the opportunity to test the missing piece, they might have been able to confirm that the piece had defects that had gone unnoticed by the lay witnesses at the jobsite. But the loss of the piece deprived Schaefer of the opportunity to develop this important proof.

We conclude that the. Schaefers have raised a- genuine issue of fact as to whether, with the missing scaffolding, they would have had a reasonable probability of success on their underlying claims. The district court’s grant of summary judgment on this issue is reversed.

3. Motion in limine

Our ruling necessarily means that the district court also erred in granting the joint motion in limine No. 21, which excluded all evidence that the missing piece was defective. We review rulings on motions in limine for abuse of discretion; decisions about admitting and excluding evidence “are peculiarly within the competence of the district court.” Von der Ruhr v. Immtech Int'l, Inc., 570 F.3d 858, 862 (7th Cir. 2009) (citations and internal quotation marks omitted). But we will overturn the district court’s ruling if it is based on the wrong legal standard. See Aldridge v. Forest River, Inc., 635 F.3d 870, 875 (7th Cir. 2011) (“[T]he district court’s decision [on a motion in limine] is to be overturned only if no reasonable person would agree with the trial court’s ruling;”).

The district court’s ruling on motion in limine No. 21 was based on the notion that any evidence that the missing scaffolding was defective would be necessarily speculative. The district court’s reason for excluding Schaefer’s experts was that they could' not reliably testify that the missing scaffolding actually had any of the defects that had been common in the Universal scaffolding at the work site:

I’m not going to allow Maniago or Un-ger to offer any opinion as to any defect that existed or that the defect may have caused the accident to happen, the incident to happen for the simple reason that, by their own admission and just by the application of just common sense, is that, that is just purely speculation on their part.

A-45. Both Maniago and Unger conceded that without the opportunity to test the lost scaffolding piece they could not say whether it was defective. But that is part of the showing that the Schaefers had to make to support their spoliation claims. They offered Maniago and Unger to help explain how the scaffolding worked, and to offer explanations of ■ how the alleged defects in the scaffolding could have caused the bar to fall and thereby cause Schae-fer’s injuries. Maniago’s and Unger’s testimony could have been admitted for these purposes, even if they could not testify whether the missing bar was actually defective. And the prevalence of defects among the Universal scaffolding pieces at the worksite 'certainly makes it more' likely that the piece that hit Schaefer was defective. The district court’s grant of motion in limine No. 21, excluding all evidence that the missing scaffolding was defective, was in error because it evaluated the relevance of their testimony under the wrong legal standard applicable to spoliation claims.

This is not to say that Maniago’s and Unger’s testimony must be .admitted. On remand, the parties may revisit their qualifications and the reliability of their testimony. But the district court must evaluate ■these issues under the correct standard for evaluating a negligent spoliation claim under Illinois law..

III. Conclusion

For the foregoing reasons, we AFFIRM the entry of summary judgment on all claims against Universal, and the entry of summary judgment on Schaefer’s negligence claim and Cynthia Schaefer’s related loss of consortium claim against Dynegy. We REVERSE the grant of summary judgment on the Schaefers’ spoliation claims against Dynegy and Brand. We REMAND for further proceedings.consistent with this opinion.

      . Under Illinois law, “actions for personal • injuries and actions for loss of consortium ... are legally distinct.” Mitchell v. White Motor Co., 58 Ill.2d 159, 163, 317 N.E.2d 505, 507 (1974). But when a defendant is not liable for the underlying claim, it is appropriate to dismiss attached claims for loss of consortium. See, e.g., Fluker v. County of Kankakee, 945 F.Supp.2d 972, 994 (C.D. Ill.), aff'd, 741 F.3d 787 (7th Cir. 2013).

      . All docket citations refer to the district court docket.

      . It bears mentioning that Schaefer’s arguments in support of his negligence claim against Dynegy generally presume that the bar was defective. But without the bar, he cannot prove that it was defective, so his negligence claim against Dynegy would fail for the same reason that his product liability claims against Universal fail.


source: Caselaw Access Project

author: POSNER, Circuit Judge.

license: Public Domain

text:
    JOE SANFELIPPO CABS, INC., et al., Plaintiffs-Appellants, v. CITY OF MILWAUKEE, Defendant-Appellee, and Jatinder Cheema and Saad Malik, Intervening Defendants-Appellees.
    No. 16-1008
    United States Court of Appeals, Seventh Circuit.
    Argued September 19, 2016
    Decided October 7, 2016

      Steven D. Sanfelippo, Attorney, Cunningham Swaim, LLP, Dallas, TX, for Plaintiffs-Appellants.
    Adam B. Stephens, Attorney, Milwaukee City Attorney’s Office, Milwaukee, WI, for Defendant-Appellee City of Milwaukee.
    Anthony Brian Sanders, Meagan A. Forbes, Attorneys, Institute for Justice, Minneapolis, MN, for Defendants-Appel-lees Jatinder Cheema and Saad Malik.
    Cynthia Fleming Crawford, Attorney, LeClairRyan, Washington, DC, for Amicus Curiae Reason Foundation.
    Before POSNER, WILLIAMS, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

The issue presented by this appeal, as by the similar appeal in Illinois Transportation Trade Association, et al. v. City of Chicago, et al., Nos. 16-2009, 16-2077 & 16-2980, also decided today, is whether the Fifth Amendment’s prohibition against the taking of private property for public use without just compensation forbids Milwaukee, in this case, and Chicago, in the parallel case, to allow competition with established taxi services in the city, whether from new taxi companies (in Milwaukee) or from companies that provide close though not identical substitutes for conventional taxi services, such as Uber Technologies, Inc. (better known just as “Uber”) (in Chicago).

The intervenors, who support Milwaukee’s opposition to the plaintiffs’ claims, obtained taxi permits under a new Milwaukee ordinance that is the target of the plaintiff-appellant taxi companies; they could not have afforded to buy taxi permits under the old ordinance that the plaintiffs wish to see reinstated. The district judge dismissed the plaintiffs’ suit on the pleadings, precipitating the appeal and the filing of a brief in opposition by the intervenors, which need not be discussed separately however because it differs from Milwaukee’s brief only in that the intervenors are intensely suspicious of the City’s bona fides and fear it will revert to the old ordinance. Suspicion alone can’t support a legal claim, but the intervenors were the plaintiffs in the state-court case that held that the permit cap violated the Wisconsin constitution, and the district court reasoned that if Milwaukee’s new ordinance was found to be a taking, this would be in conflict with the state court’s decision. As we’ll see, there’s no conflict.

From 1992 to 2013, a Milwaukee city ordinance (a component of Wisconsin state law, because Milwaukee’s local government is part of the state government) limited the number of taxicab permits in the city to the number in existence on January 1, 1992, that were renewed. No new permits would be issued; and although permits could be sold, this would not increase the number of permits. Since not all taxicab permits are renewed, the effect of the ordinance was not only to place a ceiling on the number of permits but also to lower the ceiling over time by virtue of the non-renewals; the number of permits could not increase, because no new permits could be issued, but it decreased every time a permit was not renewed. By 2013 the number of permits (equal to the number of cabs) had diminished from about 370 to about 320, and as a result the price of permits on the open market (for remember that while no more permits could be issued, existing permits could be sold) soared as high as $150,000. (We don’t know what the average price was just after the 1992 ordinance.)

In 2013, after a lawsuit successfully challenged this permit-cap ordinance as a violation of the equal protection and substantive due process clauses of the Wisconsin state constitution, the City experimented with conducting a lottery offering as prizes 100 brand-new taxicab permits to be issued by the city. The lottery attracted 1700 permit seekers, which suggested that the market was believed to be under-served. There were other indications that as a result of the 1992 ordinance there was a taxi shortage. Milwaukee had in fact only one taxicab per 1850 city residents, a much lower ratio than comparable cities. See Bruce Vielmetti, “Cab Drivers to Sue Milwaukee over Limit on Permits,” Milwaukee Journal Sentinel, Sept. 26, 2011, archive.jsonline.com/news/milwaukee/ 130609278.html.

The City responded to the shortage the following year (2014) by taking the lid off the number of permits that the city would issue. Now a new permit would be issued to any qualified applicant. The shortage flagged by the lottery attracted not only permit applicants, theretofore barred since 1992, but also substitutes for conventional taxicab service, such as Uber. The combination' of new taxi permittees and taxi substitutes (sometimes called “rideshar-ing” companies, more precisely app-based such companies) such as Uber and Lyft diminished the profitability of the existing taxi companies, which had faced little competition under the ancien régime. Indeed that regime had created an oligopoly of taxi service in Milwaukee. The theory of oligopoly teaches that the fewer the number of competitors in a market, the less vigorously they are likely to compete, preferring to share the profits than to fight with each other. In other words they collude, though tacitly to avoid attracting the attention of the antitrust agencies.

The plaintiffs’ contention that the increased number of permits has taken property away from the plaintiffs without compensation, in violation of the constitutional protection of property, borders on the absurd. Property can take a variety of forms, some of them intangible, such as patents.-But a taxi permit confers only a right to operate a taxicab (a right which, in Milwaukee, may be sold). It does not create a right to be an oligopolist, and thus confers no right to exclude others from operating taxis. An excellent amicus curiae brief filed by Reason Foundation offers the hypothetical example of a city government that “issued a license to the first grocery store or gas station in a growing town. Years later, after the population had grown, other individuals applied for licenses to create competing grocery stores and gas stations to better serve the needs of the expanding market. ... Ultimately, the pressure for additional services might drive the City to issue additional licenses,” thus breaking the monopoly of the initial, single licensee. “It would be absurd for the incumbent owners of the sole grocery store and gas station to assert a property right in the monopoly value of their businesses and claim a ‘taking’ for any reduction in secondary market value due to the newly-issued licenses, just as it would be absurd to claim a taking for reduced profits resulting from increased competition.” (The term “primary market” in the preceding sentence refers to the issuance of the licenses, “secondary market” to the resulting competition among the licensees, which is to say the taxi companies, including however the app-based ridesharing companies.)

We might have a different case had the city contractually obligated itself to freeze taxi permits for 50 years in order to encourage the taxicab owners to improve their equipment, work harder, and hire better drivers. But it did not do that. The no-new-permit ordinance of 1992 froze taxi permits (indeed made it inevitable that their number would shrink over time), but only for as long as the ordinance remained in effect—and it could be repealed at any time because it had no fixed duration. The plaintiffs cite statements by Milwaukee aldermen that they allege understood the 1992 ordinance to be creating a property interest in the permits’ value, but other aldermen warned that the ordinance could be changed to the disadvantage of the taxi companies. The companies were thus on notice that there was no guarantee that the ordinance would remain in force indefinitely, and they must also have known that were it repealed they would be faced with new competition that would threaten their profits.

The city gave them no protection against such an eventuality. The ordinance gave them no property right, and its repeal therefore invaded no right conferred on them by the Constitution. See Minneapolis Taxi Owners Coalition v. City of Minneapolis, 572 F.3d 502, 508-09 (8th Cir. 2009); David K. Suska, “Regulatory Takings and Ridesharing: Must Compensation’ for Taxi Medallion Owners?” 19 Legislation & Public Policy 183, 198-201 (2016). Apropos is Holmes’s remark in his famous opinion in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 67 L.Ed. 322 (1922), that “government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” The taxi permits issued by the Milwaukee city government are property, but have not been “taken,” as they do not confer on the holders a property right in, amounting to control over, all transportation by taxis and taxi substitutes (such as Uber) in Milwaukee.

Undoubtedly by freeing up entry into the taxi business the new ordinance will reduce the revenues of individual taxicab companies; that is simply the normal consequence of replacing a cartelized with a competitive market. But the plaintiffs exaggerate when they predict ruination for themselves. Buses and subways and livery services and other taxi substitutes have not destroyed the taxi business; nor has Uber or Lyft or the private automobile or for that matter the bicycle. Taxicabs will not go the way of the horse and buggy—at least for some time.

We have one more set of issues to discuss, though very briefly. The plaintiffs’ complaint includes claims under state law as well as under federal constitutional law, claims thus within the supplemental jurisdiction of the district court, which decided to decide them rather than relinquish them to the Wisconsin state courts, as it could have done. See 28 U.S.C. § 1367. The claims are of breach of contract, promissory estoppel, and equitable estoppel. The district judge rejected all three, pointing out that ordinances are not contracts, let alone perpetual contracts; that there was no promise by the City never to rescind or amend the 1992 ordinance and so no contract and no promise, or reason for the taxi companies to believe, that the ordinance would continue in perpetuo, unaltered. He was right on all counts.

The parties raise additional issues, but none that has sufficient merit to require discussion. The judgment of the district court, rejecting the plaintiffs’ claims, is

Affirmed.


author: WILLIAMS, Circuit Judge.

text:
    Paula Y. WILLIAMS, Plaintiff-Appellant, v. OFFICE OF the CHIEF JUDGE OF COOK COUNTY, ILLINOIS and Michael Rohan, Defendants-Appellees.
    Nos. 15-2325 & 15-2554
    United States Court of Appeals, Seventh Circuit.
    Argued April 5, 2016
    Decided October 11, 2016

      Jonathan B. Piper, Bock, Hatch, Lewis & Oppenheim, LLC, Chicago, IL, for Plaintiff-Appellant.
    Maureen O’Donoghue Hannon, Office of the Cook County State’s Attorney, Chicago, IL, for Defendants-Appellees.
    Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

Paula Williams was told she was fired from her position as a probation officer for abandoning her job. She brought this lawsuit alleging that she was actually fired for contesting a workers’ compensation claim, reporting another employee’s misconduct, being African-American, and reporting coworkers for racial hostility. Because Williams has failed to establish a material factual dispute as to any of her claims, we affirm the district court’s grant of summary judgment to the defendants.

I. BACKGROUND

Williams began working for the Juvenile Probation Department of the Office of the Chief Judge of Cook County (OCJ) in November 1995. OCJ has more than two thousand employees and seven departments, one of which is the Juvenile Division. At the time she was fired, OCJ was run by Michael Rohan, who had the final say in all termination decisions. Starting in 2008, Williams had a series of interactions with the personnel department which she contends caused her termination.

A. Race Discrimination Complaint

In December 2008, Williams, who is African American, reported an incident of racial intimidation by two white coworkers. She wrote a memorandum to Charles Young, the deputy director of the Juvenile Probation Department, stating that one of the co-workers called her over and the other said to her, “When you go black you never go back and when you are white, you are always right.” Williams found this comment to be “venomous.” Two days later, Williams received a memo from Rohan acknowledging receipt of her report, apologizing for the behavior she described, and informing her that he was opening an investigation into the matter. Williams claims that later that month, Rohan approached her at the Probation Department’s holiday party, and instructed her not to mention her memorandum to anyone outside of the building. Rohan does not recall such a conversation.

Eventually (the timing is disputed), the co-workers were interviewed, denied that their remarks were racially motivated, and were counseled not to make such remarks again. Over a year after the investigation was finished, Young created a memorandum of his investigation and placed it in Williams’s personnel file. He testified he forgot to do so right after he finished his investigation.

B. Complaint to Office of Inspector General

In March 2010, Williams reported a supervisor in her department who was making phone calls about union matters to her work phone and to her parents’ home. The Office of the Inspector General investigated the report as a potential misuse of County resources to support union candidates. The supervisor was eventually disciplined with a short suspension.

C.Workers’ Compensation Dispute

In May 2010, Williams was injured at work by Anthony Jordan, a co-worker. Jordan yanked a door open while Williams was holding it, causing her to injure her shoulder. During the incident, he yelled, “Why don’t you report this too, b* *ch?” She took a medical leave for the injury, filed a workers’ compensation claim, and began receiving temporary total disability (TTD) benefits. At the start of her leave, Rose Golden, the director of Human Resources for the department, sent Williams a letter asking her to let Golden know when she was able to return.

In December 2010, Williams received an independent medical evaluation (IME) from the Cook County Medical Office, which determined she was capable of returning to work. No one noticed the report until June 2011, when Jason Henschel, a claims adjuster for the risk management department, saw the report in Williams’s workers’ compensation file. Henschel informed Golden about the IME, and Golden sent Williams a letter asking her to' return to work on August 2. It also directed her to obtain a return to work certification from the Medical Office and a release to return to work from her personal physician. The letter warned that if Williams failed to return to work, the Department would consider it an implied resignation, which was grounds for termination.

Williams went to the Medical Office for an evaluation on August 1. The county doctor approved Williams to return to work, but the form releasing her to return to work also noted that her personal physician provided a note stating that she was not able to return to work.

Meanwhile, Williams’s attorney, Jason Marzal, was negotiating her TTD benefits with Andrew Schwartz, an attorney for the risk management office. Based on the IME, Schwartz informed Marzal that the County would only pay benefits through August 2. Marzal responded with a letter from Williams’s personal physician stating she was unable to worls until August 10. On August 16, Marzal sent Schwartz a new note from Williams’s physician, stating she would be allowed to return to work on September 3. On approximately August 22, the attorneys discussed the case at the Illinois Workers’ Compensation Commission, and Marzal testified that the two orally agreed that Williams would return to work on September 6. Schwartz denies reaching this agreement, and says the conversation was only about settling the.benefits dispute. A couple of days later, Marzal sent Schwartz a fax informing him that Williams would return to work on September 6 and demanding reinstatement of her benefits.

During these negotiations, Williams did not inform Golden of her new return to work date. Golden testified that she did not know the negotiations were taking place at all. After consulting with Rohan, Golden sent Williams a termination letter on August .30, stating that based on Williams’s failure to communicate any intent to return to work, and the apparent expiration of her workers’ compensation benefits, OCJ was terminating her for implied resignation.

On September 6, Williams went to Golden and told her she did not think she was supposed to return to work until that day. Surprised, Golden called Schwartz to ask if he had authorized a September 6 return to work date, and he denied doing so. Golden reaffirmed the termination decision. On September 22, Marzal .and Schwartz finalized a settlement agreement which provided Williams a lump-sum award and 6 weeks of TTD benefits for her workers’ compensation claim. That agreement listed Williams’s return to work date as September 6.

D. Proceedings Below

Williams brought this suit alleging that OCJ and Rohan terminated her for a variety of unlawful reasons. She sued under the Illinois Workers’ Compensation Act, the Illinois Whistleblower Act, Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §§ 1981 and 1983. She also brought breach of contract and promissory estoppel claims. At' the close of discovery, she moved for summary judgment on her workers’ compensation claim, and the defendants moved for summary judgment on all of her claims. The district court granted the defendants summary judgment on all of her claims, and she appeals.

II. ANALYSIS

On appeal, Williams argues that the district court erred in granting summary judgment to the defendants on each of her claims, and by denying her summary judgment on her workers’ compensation claim. We review a district court’s grant of summary judgment de novo, and construe all facts and draw all reasonable inferences in favor of the non-moving "party. Ellis v. DHL Express, Inc., 633 F.3d 522, 525 (7th Cir. 2011).

A. Williams Failed to Meet Causation Requirement of Workers’ Compensation Retaliation Claim

The Illinois Supreme Court has recognized a common-law cause of action for retaliatory discharge when an employee is terminated because of his actual or anticipated exercise of workers’ compensation rights. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 357 (1978). That cause of action is codified under the Illinois Workers’ Compensation Act, 820 III. Comp. Stat. 305/4(h). In order to prevail on a retaliatory discharge claim, an employee must show (1) that he was an employee before the workplace injury, (2) that he exercised a right granted by the Act, and (3) that he was discharged for a reason that was causally related to his filing a claim under the Act. Clemons v. Meek Devices Co., 184 Ill.2d 328, 235 Ill.Dec. 54, 704 N.E.2d 403, 406 (1998). For example, a discharge based on a dispute about the extent or duration of a compen-sable injury can, be retaliation under the Act. Id] see also Hollowell v. Wilder Corp. of Del., 318 Ill.App.3d 984, 252 Ill.Dec. 839, 743 N.E.2d 707, 712 (2001) (holding employer may not discharge an employee by unilaterally relying on independent physician’s favorable diagnosis while at the same time dismissing employee’s unfavorable diagnosis by his own physician). Even when an employee’s filing of a claim only proximately causes the discharge, the employee can sustain a retaliatory discharge claim. Clark v. Owens-Brockway Glass Container, Inc., 297 Ill.App.3d 694, 232 Ill.Dec. 1, 697 N.E.2d 743, 746 (1998). But that does not mean an employer can never discharge an employee who has filed a claim. So long as the reason for a discharge is wholly unrelated to an employee’s claim for benefits, the employer is not liable for retaliatory discharge. See id.; see also Horton v. Miller Chem. Co., Inc., 776 F.2d 1351, 1359 (7th Cir. 1985) (termination based on employer’s incorrect assumption that employee could never perform job duties again not retaliatory); Thomas v. Zamberletti, 134 Ill.App.3d 387, 89 Ill.Dec. 387, 480 N.E.2d 869, 871 (1985) (no retaliatory discharge when plaintiff discharged for failing to report to work); Marin v. Am. Meat Packing Co., 204 Ill. App.3d 302, 149 Ill.Dec. 818, 562 N.E.2d 282, 286 (1990) (employer may fire employee for absenteeism, even if absenteeism is caused by an injury which is compensable by workers’ compensation).

Williams argues that her doctor’s opinion about her return to work date caused her to believe she was permitted to stay off work until September 6. So, she argues, the conflict between her personal doctor’s opinion and the IME caused her termination. In support of this argument, she relies heavily on Grabs v. Safeway, 395 Ill.App.3d 286, 334 Ill.Dec. 525, 917 N.E.2d 122 (2009), an Illinois appellate case which held that an employer may not rely solely on an IME in terminating an employee for failing to call in his absences. There, the plaintiff was injured and filed a claim with his employer, which was initially approved. His physician ordered him to continue off work, but an independent examiner disagreed. Id. 334 Ill.Dec. 525, 917 N.E.2d at 125-26. Grabs followed his physician’s advice, but as a result of the IME, his employer recoded his absence in the attendance system, which imposed a new requirement on him to call in to work, a requirement from which he was exempt while on workers’ compensation leave. Because Grabs was unaware of the change, he failed to call in to report his absences, and was fired. The court held that it would be improper for the employer to take an employment action (recoding the plaintiffs attendance status) based on a medical report that was disputed by other physicians. Id. 334 Ill.Dec. 525, 917 N.E.2d at 124. But it also noted that a plaintiff cannot use his workers’ compensation claim as a shield from compliance with other personnel rules. Id. 334 Ill.Dec. 525, 917 N.E.2d at 134 (citing Finnerty v. Personnel Bd. of the City of Chi., 303 Ill.App.3d 1, 236 Ill.Dec. 473, 707 N.E.2d 600 (1999)).

We see a critical difference between Grabs and this case. In Grabs, a decision-maker acted improperly on the knowledge of the disputed IME by recoding the plaintiffs work status in the attendance system. That improper act caused the plaintiffs termination. There is no evidence here that Golden acted with knowledge that Williams disputed her return to work date. In fact, Golden testified she had no idea Williams believed her return to work date was September 6. From Golden’s vantage point, Williams simply decided not to return to work.

The facts here are more akin to Beatty v. Olin, 693 F.3d 750 (7th Cir. 2012), where the decision-maker who fired the plaintiff had no knowledge of his return to work status. Id. at 751-52. We held there that firing someone based on incomplete or inaccurate information is legally insufficient to make out a retaliatory discharge claim—rather, a plaintiff must provide evidence that her employer was motivated to fire her for exercising her workers’ compensation rights. Id. at 754. We also required that a plaintiff who argues that a decision-maker is lying about his ignorance of an underlying workers’ compensation dispute provide evidence to support that position. Id. Similar to the plaintiff in Beatty, Williams failed to provide any evidence that Golden knew that there was a dispute about her readiness to return to work. She argues that Marzal told Schwartz that she would return on September 6, who in turn said he would pass the message to “his client.” But there is no evidence that Schwartz meant he would tell Golden about the return to work date, and he denies talking to Golden about the matter prior to Williams’s termination. A fact-finder could not reasonably leap from Schwartz’s nebulous assurance to Marzal to the inference that Golden knew about the disputed return-to-work date when she fired Williams.

To surmount this obstacle, Williams draws on Illinois case law that notice to an attorney constitutes notice to her client. Segal v. Ill. Dep’t of Ins., 404 Ill.App.3d 998, 344 Ill.Dec. 923, 938 N.E.2d 192, 195 (2010); Williams v. Dorsey, 273 Ill.App.3d 893, 210 Ill.Dec. 310, 652 N.E.2d 1286, 1290 (1995); Eckel v. Bynum, 240 Ill.App.3d 867, 181 Ill.Dec. 94, 608 N.E.2d 167, 174 (1992). But each of these cases deals with notice of judicial proceedings, not notice of the contents of every discussion between attorneys during a settlement negotiation. While we agree with the district court that the lack of coordination between departments is unfortunate, “the retaliatory-discharge cause of action is narrow and requires evidence of retaliatory motive, not just sloppy personnel practices.” Beatty, 693 F.3d at 754 (emphasis in original). Employees can avert the danger of falling victim to disjointed intra-agency communications by keeping decision-makers informed of the status of their claims.

B. No Breach of Contract or Estop-pel

Williams’s second argument on appeal is that the district court erred in granting summary judgment to the defendants on her breach of contract and promissory es-toppel claims. She argues that by firing her, OCJ breached a verbal contract formed by Marzal and Schwartz regarding her return date.

Under Illinois contract law, which applies here, a plaintiff must show evidence of offer and acceptance to sustain a breach of contract claim. Ass’n Benefit Servs., Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007) (citing MC Baldwin Fin. Co. v. DiMaggio, Rosario & Veraja, LLC, 364 Ill.App.3d 6, 300 Ill.Dec. 601, 845 N.E.2d 22, 30 (2006)). For an oral contract to exist, the parties must have a meeting of the minds with respect to the terms of the agreement and must intend to be bound by the agreement. Podolsky v. Alma Energy Corp., Inc., 143 F.3d 364, 369 (7th Cir. 1998).

Williams needed to put forth evidence to create a factual dispute about the following two issues: first, that Schwartz entered into an agreement with Marzal about Williams’s return date, and second, that OCJ authorized him to do so. Danziger v. Pittsfield Shoe Co., 204 Ill. 145, 68 N.E. 534, 535-36 (1903). To support Schwartz’s authority to enter into the agreement, Williams provides Marzal’s deposition testimony that he regularly negotiated return to work dates with attorneys in Schwartz’s office, and argues that Golden would not have called Schwartz to inquire about whether he had altered her return to work date if he lacked the authority to do so, To support the fact that Schwartz actually bound OCJ to the September 6 return date, she points to Marzal’s deposition testimony that on August 22, he had a conversation with Schwartz in which Schwartz agreed to let Williams return on September 6, and to the written settlement agreement, which listed her return to work date as September 6.

At his deposition, Marzal testified that his understanding from verbal- conversations with Schwartz was that Williams was authorized to return to work on September 6. When asked why he believed this, he testified it was because “verbatim I can’t tell you, but basically [Schwartz] was in concurrence with her returning back to work on the 6th, and he would communicate that to his client.” He also stated that “[Schwartz] represented that [Williams returning to work on September 6] is .a problem and that we have to resolve it- in Paula Williams’s favor.” When pressed as to how OCJ would resolve it in Williams’s favor, Marzal stated, “[Schwartz] said that Dr. Labanauskis is releasing her to go back to work and we will let her go back to work on the 6th. Basically that’s what he’s saying. I didn’t write down my conversation with him.” A reasonable jury could conclude that saying “we will let her go back to work on the 6th” was a clear, unambiguous promise from Schwartz to Marzal that Williams could return to work on August 6. So it seems that Williams has mounted her first hurdle.

The trickier question is whether Schwartz was actually authorized to bind OCJ to such a promise. Whether an agency relationship exists is generally a fact question, although a court may decide it as a question of law if only one conclusion may be drawn from the undisputed facts. Churkey v. Rustia, 329 Ill.App.3d 239, 263 Ill.Dec. 761, 768 N.E.2d 842, 845 (2002). A party can establish an implied agency relationship through circumstantial evidence. C.A.M. Affiliates, Inc. v. First Am. Title Ins. Co., 306 Ill.App.3d 1015, 240 Ill.Dec; 91, 715 N.E.2d 778, 783 (1999). When settlements are made out of court, Illinois law does not presume that an attorney has authority to bind his client, and assigns the burden of proof to the party alleging authority. Brewer v. Nat’l R.R. Passenger Corp., 165 Ill.2d 100, 208 Ill.Dec. 670, 649 N.E.2d 1331, 1334 (1995) (citing Danziger, 68 N.E. at 535-36). In the absence of proof of express authority, an attorney’s representations are not binding when they are later invoked against his client. Id.

The two pieces of evidence that Williams provides—Marzal’s testimony that he regularly negotiated return dates with Cook County state’s attorneys, and Golden’s testimony that she checked with Schwartz about promising Williams a later return date—could not lead a reasonable fact-finder to conclude that OCJ expressly authorized Schwartz to determine Williams’s return date. She also points to the settlement agreement the attorneys eventually entered with the Commission on November 26, which states that Williams was temporarily totally disabled through September 6. But the same document states that Williams was terminated on August 30 for alleged job abandonment. So the document cannot reasonably support an inference that OCJ authorized Schwartz to permit Williams to return to work on September 6.

As an alternative to her contract theory, Williams advances an estoppel theory. (She does not specify if it is an equitable or promissory estoppel theory, but she appears to advance arguments under both doctrines, arid similar considerations apply for each under our analysis. Matthews v. Chi Transit Auth., 402 Ill.Dec. 1, 51 N.E.3d 753, 780 n. 11 (2016)). She argues that regardless of whether Schwartz was expressly authorized by OCJ to set her return to work date, she reasonably relied on his promise that she could return to work on September 6 and was detrimentally impacted as a result. Schwartz is not a named defendant in this lawsuit, so we assume that OCJ and Rohan are the targets of her estoppel claim.

Under Illinois law, to obtain equitable estoppel against a municipality, a plaintiff must demonstrate that (1) the municipality affirmatively acted, (2) the affirmative act induced substantial reliance, and (3) the aggrieved party substantially changed its position as a result of its justifiable reliance. Morgan Place of Chi v. City of Chi, 363 Ill.Dec. 385, 975 N.E.2d 187, 195 (2012) (holding that plaintiffs’ reliance on assertions by city officials about building permits did not warrant equitable estoppel against city). Justifiable reliance means that a plaintiff cannot “shut his eyes to obvious facts, or neglect to seek information that is easily accessible, and then charge his ignorance to others.” Village of Wadsworth v. Kerton, 311 Ill.App.3d 829, 244 Ill.Dec. 560, 726 N.E.2d 156, 164-65 (2000).

Equitable estoppel is generally disfavored against municipal bodies, unless “it is necessary to prevent fraud and injustice.” Halleck v. Cnty. of Cook, 264 Ill.App.3d 887, 202 Ill.Dec. 374, 637 N.E.2d 1110, 1114 (1994). The affirmative act must be made by the body itself, such as by a legislative enactment. See Schivarelli v. Chi Transit Auth., 355 Ill.App.3d 93, 291 Ill.Dec. 148, 823 N.E.2d 158, 167-68 (2005). Unauthorized acts of ministerial officers or misinterpretations generally do not meet the affirmative act requirement. Id. (finding no estoppel against transit authority board when it did not approve an agreement made between one of its employees and plaintiff). Representations by an attorney have been held insufficient to bind a municipality under the doctrine of estop-pel. Hamwi v. Zollar, 299 Ill.App.3d 1088, 234 Ill.Dec. 253, 702 N.E.2d 593, 598 (1998) (finding no estoppel where department attorney represented that plaintiffs disciplinary record would be expunged and department later denied his expungement application); Marx v. State Dept. of Revenue, 165 Ill.App.3d 332, 116 Ill.Dec. 492, 519 N.E.2d 82, 84 (1988) (representations of Attorney General’s office regarding monetary penalty did not work an estoppel against the state when it imposed greater penalties).

However, occasionally, Illinois courts have found circumstances to be unjust enough to warrant estoppel. The general disfavoring of estoppel against a municipality is “qualified to enable a party to invoke [estoppel] where his action was induced by the conduct of a municipal official, and where, in the absence of such relief, he would suffer a substantial loss.” Chicago v. Miller, 27 Ill.2d 211, 188 N.E.2d 694, 696 (1963). For example, erroneous conferral of public benefits is not normally a ground for estoppel, but at least one appellate court has held that the Ulinpis Department of Public Aid can be estopped from recouping benefits from a plaintiff when one of its employees repeatedly miscalculated a claimant’s benefits over the course of five years. Kruse v. Dep’t of Pub. Aid, 231 Ill.App.3d 1052, 173 Ill.Dec. 119, 596 N.E.2d 743, 745-46 (1992). Similarly, while injury stemming from the issuance of an unauthorized permit does not typically warrant estoppel, where a municipal body “ratifies” the issuance by failing to revoke the permit for an extended period of time, estoppel has been found appropriate. Cities Service Oil Co. v. Des Plaines, 21 Ill.2d 157, 171 N.E.2d 605, 608 (1961); Hagee v. Evanston, 91 Ill.App.3d 729, 47 Ill.Dec. 68, 414 N.E.2d 1184, 1187 (1980).

It is hard to draw a clear line from this precedent to delineate where under Illinois law, an injustice is severe enough, and unfair enough, to warrant es-toppel. But we find even taking all of Williams’s factual allegations as true, they are insufficient to justify estoppel. Here, Marzal testified that Schwartz agreed to the September 6 return date and that he explicitly promised to convey the new date to “his client.” But distinct from the rare cases in which Illinois courts have applied estoppel, there is no evidence that Schwartz’s misrepresentation was ratified by OCJ. In the absence of proof that he was authorized to give Williams a new return to work date, Schwartz’s promises regarding Williams’s return date must be viewed as ultra vires acts by a municipal employee. When OCJ discovered that he may have promised Williams a different return date, it did not permit Williams to return to work, or otherwise ratify his misrepresentation. To the contrary, Golden sent Williams home, and later reaffirmed her termination. Williams was misled by Schwartz, but not by OCJ. While it is a close question, we find estoppel to be an inappropriate remedy for the factual circumstances before us.

C. Williams Has Failed to Produce a Material Factual Dispute About Race Discrimination or Retaliation

Williams next argues that she provided enough evidence to create a material factual dispute about whether she was fired because of her race, in violation of Title VII. We recently discarded the direct and indirect methods of proof for retaliation claims, and held that a plaintiff can surmount summary judgment if a reasonable factfinder could conclude that the plaintiffs race caused the discharge. Ortiz v. Werner Enters., No. 15-2574, 834 F.3d 760, 764-65, 2016 WL 4411434, at *4 (7th Cir. Aug. 9, 2016). We must consider evidence as a whole, rather than by asking whether any particular piece of evidence proves the case by itself. Id.

There is simply not enough evidence for a reasonable factfinder to rule in favor of Williams. Her only evidence is that a white employee was given several chances to return to work after taking a similar leave. But to prevail by showing differential treatment of a similarly situated employee, a plaintiff must identify a comparator who is “directly comparable to her in all material respects ... to eliminate other possible explanatory variables.” Perez v. Thorntons, Inc., 731 F.3d 699, 704 (7th Cir. 2013). Here, the record evidence shows that the white employee repeatedly contacted Golden to keep her abreast of her extension requests. Golden testified that Williams was not fired for asking for extensions of leave, but for failing to get in touch at all. This was a material difference between the two employees, which prevents Williams from arguing she was treated differently when all things were “in fact equal.” Filar v. Bd. of Educ. of City of Chi, 526 F.3d 1054, 1061 (7th Cir. 2008). Williams has not identified a similarly situated employee, which is fatal to her discrimination theory.

Williams also argues that she was fired for reporting racial discrimination by her white co-workers, in violation of 42 U.S.C. § 2000e-3(a). To overcome summary judgment On this claim, she needs to show that she was fired, that she engaged in protected activity, and that the latter caused the former. Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013). In support of her retaliation claim, Williams offers that Rohan instructed her not to talk about the incident outside of the building, that the department’s investigation into the incident lagged after she made the initial report, that a copy of her report was placed into her personnel file but not' her co-workers’, and that Rohan reviewed her personnel file before deciding to fire her. Again, Williams has not met her summary judgment burden. Williams made the report close to three years before she was terminated. The handling of the report did not create an inference of retaliation. While there may have been some delays in the investigation, there is no evidence that the delays were in any way related to Williams’s eventual termination. The most nefarious inference that can be drawn from Williams’s version of the facts is that the department felt the need to get Williams’s personnel file in order before terminating her. That still does not support an inference that her report of racial harassment caused her termination. And a reasonable factfinder could not infer that Rohan’s comment three years before Williams’s termination to keep the matter confidential was evidence that he planned to fire her.

Williams also asks us to overrule our own precedent and find that Rohan can be held liable for race' discrimination and retaliation under 42 U.S.C. § 1981. We decline to do so. See Campbell v. Forest Preserve Dist. of Cook Cnty., 752 F.3d 665, 671 (7th Cir. 2014) (§ 1981 does not create a private right of action against state actors).

D. No Illinois Whistleblower Act Violation

Williams’s final theory of liability against the defendants is that they violated the Illinois Whistleblower Act by terminating her for reporting unlawful misconduct against her coworkers and for reporting misconduct by a supervisor to the OIG. The parties dispute whether Williams brought this claim in time to avoid the one year statute of limitations for tort actions against governmental entities! 745 III. Comp. Stat. 10/8-101(a). It is unclear under Illinois law whether this statute of limitations applies to retaliatory discharge claims under the Illinois Whistleblower Act, although one appellate court seemed to suggest that it might. See Taylor v. City of Chi., 381 Ill.Dec. 298, 10 N.E.3d 383, 395 (2014). Rather than attempting to resolve this question, we conclude that even if the claim was timely, it did not meet the sum mary judgment standard for whistleblower claims. In order to show whistleblower retaliation, a plaintiff must provide some evidence that the employer had a retaliatory motive. See Michael v. Precision Alliance Grp., LLC, 351 Ill.Dec. 890, 952 N.E.2d 682, 688 (2011). There is no evidence of a retaliatory motive here. Williams points to Anthony Jordan’s remark (“Why don’t you go report this too, b* *eh?”), indicating that others knew about her prior reports. But Jordan was not a decision-maker at OCJ, and there is no evidence that his views of Williams’s whistleblowing activities—or anyone else’s—influenced Rohan or Golden’s decision to fire her.

E. No Abuse of Discretion to Award of Costs to OCJ

Finally, Williams argues that the district court abused its discretion by awarding the defendants costs. A district court should provide an explanation for its decision to award or deny costs. Rivera v. City of Chicago, 469 F.3d 631, 636 (7th Cir. 2006). It only abuses its discretion in reviewing a bill of costs if “no reasonable person could take the view adopted by the trial court.” Id. The district court evaluated the documentation that Williams provided and found that she had more than sufficient income to pay the bill of costs. While Williams referenced an outstanding medical bill, she did not provide any documentation or explanation for the bill and its impact on her ability to pay the bill of costs. Under an abuse-of-discretion standard, there is no basis for vacating the award.

III. CONCLUSION

For the foregoing reasons, we Affirm the district court’s grant of summary judgment.