Atkinson v. Newedge USA LLC
Filing
167
MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 12/12/2016:Mailed notice(rth, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY DAVID ATKINSON,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SG AMERICAS SECURITIES, LLC,
Defendant.
Case No. 14 cv 9923
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Defendant SG Americas Securities, LLC (“SGAS”), filed a motion for summary judgment
[154], arguing that there is no genuine issue of material fact and it is entitled to judgment as a matter
of law on the remaining three counts of plaintiff Anthony David Atkinson’s complaint. This Court
heard oral arguments on the motion on November 4, 2016. For the reasons stated below, this Court
grants the motion.
Background
The following facts are taken as true and undisputed for purposes of ruling on the instant
motion. As discussed below, plaintiff failed to respond to SGAS’ Local Rule 56.1(a)(3) Statement of
Undisputed Facts in compliance with L.R. 56.1(b)(3) and therefore the Court deems admitted the
facts in SGAS’ L.R. 56.1(a)(3) statement. L.R. 56.1(b)(3)(C).
SGAS and its predecessor firms, including Newedge USA, LLC, employed David Atkinson
from August 2002 until January 14, 2015. (SGAS’ L.R. 56.1(a)(3) Statement of Undisputed Facts,
Dkt. 157 at ¶1). SGAS is a futures commodity merchant that provides its customers with electronic
trading software platforms, trade clearing services, and trading support. (Id. at ¶3). Between August
2002 and February 2013, Atkinson was an eSolutions Support Analyst or eTrading Support Analyst
on the Trade Mitigation Team (“TMT”) in the eSolutions Department. (Id. at ¶4). TMT provides
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telephone support to external customers and internal SGAS traders, known as “business lines,” to
resolve issues with eTrading, such as online access to trading systems, confirmation of executed
trades, and adjustments to customers’ trading limits. (Id. at ¶5). Atkinson’s work station was on the
eSolutions floor in SGAS’ Chicago office, which contained 35 to 40 other eSolutions employees. (Id.
at ¶7). Each eSolutions team, including TMT and Administration, had its own dedicated area on the
eSolutions floor. (Id.). The Administration team generally performs back-office software and
eSolutions support functions, and typically does not deal directly with customers. (Id. at ¶8).
1. Atkinson’s Medical Leave and Return to Work
In October 2011, Atkinson was hit by a car and was on medical leave due to his injuries,
including permanent loss of hearing in his left ear. (Id. at ¶¶9-10). His physician released him to work
without restrictions on December 1, 2011. (Id.). Atkinson successfully resumed his duties upon
returning to work. (Id. at ¶11).
Approximately three months later, in March 2012, Atkinson suffered a brain hemorrhage
while on vacation, which required a second medical leave. On August 7, 2012, Atkinson’s father
emailed SGAS (then Newedge) to notify them that Atkinson “is doing quite well and would like to
return to work soon,” and asked what the company would require for him to return. (Id. at ¶13).
The company proposed a return date of August 20, 2012, and stated that it would need a doctor’s
release stating “any special conditions or accommodations for Anthony [Atkinson]’s return to work,
if any.” (Id.). Atkinson’s father informed the company that August 20 was too soon. (Id. at ¶14). The
company did not require Atkinson to return work. (Id.). On September 19, 2012, Atkinson’s doctor
sent SGAS a return to work release, stating that “Mr. Anthony David Atkinson may return to work
for 6 hour days from 9/20/12 through 9/30/12 and full time thereafter.” (Id. at ¶15). The release
did not specify any ongoing work restrictions or describe any hearing, speech, balance, or other
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disabilities. (Id.). SGAS requested Atkinson return to work as of October 1, 2012, which he did. (Id.
at ¶12, 16).
Prior to his return to work, Atkinson informed Human Resources representative Lisa Foster
that his doctor would like him to start with 6-hour days at first, but he agreed to return full-time on
October 1, 2012. (Id. at ¶17). Foster responded, “If you need to work a shorter day at first because
of your doctor’s recommendation it is totally fine. Let’s see how it goes. We are glad to have you
back.” (Id. at ¶18). Atkinson returned to work on October 1 in the same position as an eSolutions
Support Analyst with TMT at the same pay without taking any shortened days. (Id.).
After Atkinson’s return to work, SGAS began receiving complaints from several external
customers and business line representatives about Atkinson’s handling of their calls to the
eSolutions’ support line. (Id. at ¶21). Vendors and exchanges also complained about interactions
with Atkinson, causing his then-manager Greg Stephens to require Atkinson to seek permission
before contacting vendors. (Id. at ¶22). SGAS received more complaints about Atkinson’s
performance after his return from medical leave than it had received before he went on leave. (Id. at
¶23). The complaints continued during the fourth quarter of 2012 and into 2013. (Id.). SGAS
regularly records support calls for quality assurance for review in case of complaints. (Id. at ¶24).
Stephens reviewed recordings of some of Atkinson’s support calls to determine if the complaints
were well-founded and he found that the complaints were valid. (Id.). The complaints included
Atkinson not providing requested information to clients and failing to escalate complaints to a
manager when he was unable to answer. (Dkt. 158-1, Stephens Tr. at 182-83).
2. Performance Evaluation and Reassignment
SGAS generally conducts its performance evaluations for the preceding year in January. (Id.
at ¶26). In January 2013, Stephens delivered Atkinson’s annual performance evaluation for 2012.
(Id.). The review took into account Atkinson’s performance issues since his return to work, provided
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some criticism, and gave him an overall rating of 2 (out of 5)- “Meets Some but Not All
Expectations.” (Id.). In February 2013, management assigned Atkinson to a project on the
Administration team because they believed it would be a better fit since the project did not involve
direct customer contact, was less time-sensitive, and was less stressful. (Id. at ¶27). Atkinson’s title of
eSolutions Support Analyst and pay did not change with the assignment on the Administration team.
(Id. at ¶28). The Administration team manager, Jason Sutton, gave Atkinson more discrete “static
data” analysis tasks on the project because Atkinson was having some performance difficulties on
his new team in February and March 2013. (Id. at ¶29).
In August 2013, Atkinson was permanently assigned to the Administration team and his title
changed to eSolutions Static Data Analyst. (Id. at ¶30). He remained in this position until leaving
SGAS in January 2015. (Id.). According to Sutton, Atkinson was better able to perform the duties of
this position, although he did identify some areas for improvement in 2013 and 2014. (Id. at ¶31).
Atkinson admitted in his deposition that Sutton was “a fair man” and that there “probably” was
some legitimacy to Sutton’s critiques. (Id.).
In November 2014, Newedge announced its merger with SGAS effective in early January
2015. (Id. at ¶74). All Newedge employees were required to sign a form SGAS employment
agreement if they intended to continue their employment after the merger. (Id.). Employees who
failed to sign the document would be deemed to have resigned. (Id.). Atkinson refused to sign the
employment agreement because he did not agree with the arbitration clause, among other
provisions. (Id. at ¶75). SGAS agreed to waive the arbitration clause. (Id.). Atkinson still refused to
sign the agreement. (Id.). SGAS therefore considered Atkinson to have resigned as of January 14,
2015. (Id. at ¶76). As a result of his resignation, Atkinson did not receive any severance benefits.
(Id.). Three other Newedge employees also refused to sign the employment agreement. (Id. at ¶78).
All three were deemed to have resigned and none received severance packages. (Id.).
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3. Requests and Accommodations
In March 2012, Atkinson’s work station was in the far left corner of the TMT area, where he
had his left ear towards the wall. (Id. at ¶33). Prior to his return from medical leave in October 2012,
his previous corner workstation had been dismantled and was no longer available to anyone. (Id. at
¶34). Upon his return to work, Atkinson chose a workstation near his prior location that was closer
to other TMT and Administration team members. (Id. at ¶35). Greg Stephens, the TMT supervisor
in October 2012, was not aware of Atkinson’s hearing loss and believed the new workstation near
other employees would help Atkinson’s transition back on the team. (Id. at ¶36).
On January 6, 2013, Atkinson submitted a formal internal complaint to SGAS personnel,
including his manager Stephens and Human Resources representative Lisa Foster. (Id. at ¶79). In
this complaint, Atkinson stated that he had suffered two traumatic brain injuries over a 15 month
period and had lost hearing in his left ear. (Id.). The complaint further asserted that SGAS had failed
to accommodate him by not giving him his old workspace in the corner, and had harassed and
discriminated against him by not giving him systems access or a regular schedule. (Id. at ¶80). Foster
investigated the complaint and confirmed with Stephens that Atkinson had what he needed to do his
job. (Id. at ¶81).
On January 9, 2013, Stephens and Foster met with Atkinson to discuss his complaint. (Id. at
¶82). At the meeting, Atkinson’s only request for accommodation was a change of seating due to his
hearing loss. (Id.). Atkinson made other requests unrelated to his hearing, including a set work
schedule, instead of variable, an ergonomic keyboard, and use of his old PC as his main
computer. 1(Id. at ¶83). All of Atkinson’s requests were granted. (Id.). Immediately following this
Prior to Atkinson’s return from medical leave on October 1, 2012, SGAS upgraded the computers for all of its
employees in eSolutions. (Id. at ¶46). Atkinson’s two desktop PCs that he had been using for approximately 10 years
were replaced by a laptop upon Atkinson’s return. (Id.). Atkinson found his old PC and asked Stephens if he could use it.
(Id. at ¶47). Stephens allowed him to use his old PC when necessary, but the laptop was intended to be Atkinson’s main
computer given the upgrades. (Id.). Atkinson also found his old file cabinet and notebook, which he was able to use.
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meeting, Atkinson sent Foster a 12-page email that began, “The harassment stops now” and
repeated the same complaints that SGAS had already addressed in the meeting. (Id. at ¶84). On
January 22, 2013, Foster sent Atkinson an email confirming that SGAS had moved Atkinson’s
workspace to better accommodate his hearing loss, had provided the other things he had asked for
in his formal complaint, and reiterated that SGAS is committed to giving him access, training, tools
to do his job. (Id. at ¶85).
Stephens and his manager, Graham Hughes, met with Atkinson to discuss his concerns
again. (Id. at ¶88). Hughes emailed Atkinson on February 8, 2013, stating that they have
accommodated Atkinson, but will continue to work with him if he has concerns. (Id.). Atkinson
continued to raise the same complaints. (Id. at ¶89).
In February 2013, when Atkinson was assigned to the Administration team, his supervisor
Sutton moved him closer to the Administration team and Sutton’s office. (Id. at ¶39). Sutton asked
the Administration team to make efforts to speak into Atkinson’s functioning ear. Atkinson’s new
workspace had his co-workers to his right and behind him. (Id. at ¶40). This initial workspace with
the Administration team was a temporary desk because a “permanent” desk was not available when
Atkinson joined the team. (Id. at ¶42). Atkinson was seated at the temporary desk from February
2013 until January 2014. Although the workstation was smaller than a permanent desk, there was
enough space for Atkinson’s computer, telephone, and several monitors. (Id.).
Atkinson claims that his temporary desk was under a vent that blew cold air onto him,
aggravating his wrists and ankles. (Id. at ¶44). The eSolutions room had temperature variations,
drafts, and vents. Non-disabled supervisor, Erica Brown, was also frequently cold. (Id.). Jason
Zdora, a non-disabled temporary staff member, used the same temporary desk to which Atkinson
(Id.). Atkinson submitted an internal complaint, asking to use his PC as his main computer because his laptop was having
problems. (Id. at ¶48). SGAS allowed him to use his PC instead of the laptop. (Id.).
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was assigned. (Id. at ¶43). In January 2014, a permanent desk opened up in the Administration team
area and Atkinson was moved to that desk until his employment ended. (Id. at ¶45). Atkinson
testified that the permanent desk addressed his concerns about workspace and drafts. (Id.).
In June 2013, SGAS informed Atkinson that he would have to undergo an independent
medical evaluation (“IME”) to determine if any further accommodation was medically necessary
because Atkinson had not provided any medical documentation to support his requests. (Id. at ¶90).
SGAS told Atkinson that an IME would not be necessary if he confirmed that he had no medical
accommodation need beyond his hearing. (Id. at ¶91). Atkinson neither made such a confirmation
nor did he submit to an IME. (Id.). Atkinson told SGAS he would provide doctor’s notes, which
SGAS allowed him to do. (Id. at ¶92). Atkinson provided two notes. One note, dated June 28, 2013,
stated that “due to his left sided hearing loss he needs appropriate seating accommodations.” (Id. at
¶93). The second note, dated July 2, 2013, stated that Atkinson “needs time to be able to schedule
appointments for ongoing medical care and also a consistent work schedule. Additionally, he needs
an ergonomic keyboard and should not be using computer monitors that flash heavily.” (Id. at ¶94).
SGAS’s position is that it had already provided the accommodations requested in the notes. (Id. at
¶94).
4. Other Complaints and Accommodations
When Atkinson returned to work after his medical leave in October 2012, SGAS provided
him with access to TMT systems and all standard work tools, including internet access, email, and
access to internal eSolutions databases that contained TMT and Administration systems and tools.
(Id. at ¶49). SGAS did not remove any systems access that Atkinson had prior to his medical leave.
(Id. at ¶51). Atkinson was not provided with access to every eSolutions system, but no employee was
provided with such access. (Id. at ¶52). Management decides what access employees need based on
their duties. (Id. at ¶54). Atkinson had access to some systems that other employees did not have and
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Atkinson admitted that he does not know what systems other TMT employees had access to. (Id.).
Atkinson’s managers and Human Resources representative Lisa Foster confirmed that Atkinson had
the tools need to do his job. (Id. at ¶51).
If employees could not access a system, lacked a password, or needed help, they were able to
obtain shared login and passwords from colleagues, managers, the IT help desk, exchanges or
vendors. (Id. at ¶51). Stephens took steps to provide Atkinson with access and equipment when he
learned Atkinson was having issues. (Id. at ¶57). Atkinson has not presented any evidence that
Stephens or anyone else denied him access to systems, logins, passwords, or other tools. (Id.).
Atkinson testified that Stephens was not a good manager and did not understand what everyone
needed, but admitted he was making efforts to help him. (Id. at ¶58).
SGAS does not provide specific training for employees on most eSolutions systems, but
employees must learn on the job, using their knowledge, material on SGAS databases, and their
colleagues for assistance. (Id. at ¶60). Atkinson received the same training opportunities as other
employees and has offered no evidence of non-disabled employees who were offered more training.
(Id. at ¶61).
In March 2012, Atkinson’s work schedule was 6:00 a.m. to 2:30 p.m. to provide early
morning TMT coverage for certain customers outside the United States. (Id. at ¶66). During
Atkinson’s leave, SGAS changed its practices, including providing non-U.S. customers with
eSolutions assistance from non-U.S. personnel. (Id.). When Atkinson returned to work in October
2012, his start time varied between 6:30 a.m. and 7:15 a.m. depending on business needs. (Id. at ¶67).
In January 2013, Atkinson requested a regular schedule with a 6:00 a.m. start, which Stephens gave
him. (Id. at ¶68). The TMT team had no business need for Atkinson to start at 6:00 a.m. (Id.). Only
one other employee started that early and he was in a different role. (Id.).
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When SGAS reassigned him to the Administration team, his supervisor Sutton gave him a
regular schedule with a 6:45 a.m. start. (Id. at ¶69). There was no business need for Atkinson to start
earlier than 6:45 a.m. and that is the time that Sutton started work. (Id.). Atkinson claimed that he
needed an earlier start time for therapy sessions four times per week, but he did not provide any
medical documentation requiring a specific work schedule. (Id. at ¶70). SGAS indicated to Atkinson
that it would make accommodations for specific appointments if he engaged with them to adjust his
schedule. (Id. at ¶72). Atkinson admitted in his deposition that he was never prevented from going
to any appointments. (Id. at ¶73).
Atkinson also complains that he did not receive raises, but only two staff members received
salary increases between 2012 and 2015. (Id. at ¶¶96-98). SGAS asserts that business conditions
prevented salary increases and a reduction in bonuses during this time period. (Id. at ¶¶96-99).
Atkinson’s overtime hours and overtime pay increased each year from 2011 to 2014. (Id. at ¶100).
SGAS kept Atkinson’s medical information in confidential files and only shared limited information
with employees on a need to know basis, particularly with regards to Atkinson’s hearing loss. (Id. at
¶102). Atkinson himself informed several managers and coworkers at SGAS that he had suffered a
traumatic brain injury and lost hearing in his left ear. (Id. at ¶102). SGAS sent Atkinson COBRA
paperwork to continue his health coverage after his January 2015 separation from the company, but
he never filled it out. (Id. at ¶105).
Legal Standard
Summary judgment is proper only when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue for
trial exists when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.
2d 202 (1986); Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004). The standard places the
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initial burden on the moving party to identify those portions of the record that “it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (internal quotations omitted). Once the moving
party meets this burden of production, the nonmoving party “must go beyond the pleadings” and
identify portions of the record demonstrating that a material fact is genuinely disputed. Id.; Fed. R.
Civ. P. 56(c). In deciding whether summary judgment is appropriate, this Court accepts the
nonmoving party’s evidence as true and draw all reasonable inferences in that party’s favor. Anderson,
477 U.S. at 244.
Discussion
1. Local Rule 56.1
Pro se litigants are not held to the same stringent standards expected of attorneys. However,
the Court is entitled to expect conformity with its orders and with the local rules. Here, Atkinson’s
opposition brief is thirty-five pages, which exceeds the additional page-limit that the Court allowed
of each party. Additionally, Atkinson’s brief failed to conform to font size, margins, and line spacing
requirements contained in Local Rule 5.2(c). The Court would be within its discretion to strike the
brief in its entirety, though the Court declines to do so.
2. Count I: ADA Failure to Accommodate
SGAS argues that it is entitled to summary judgment on Count I because SGAS fully
accommodated Atkinson’s disability. “A plaintiff claiming failure of reasonable accommodation
must show: ‘(1) he is a qualified individual with a disability; (2) the employer was aware of his
disability; and (3) the employer failed to reasonably accommodate the disability.’” Curtis v. Costco
Wholesale Corp., 807 F.3d 215, 224 (7th Cir. 2015) (quoting James v. Hyatt Regency Chicago, 707 F.3d
775, 782 (7th Cir. 2013)). The ADA sets forth three ways in which an individual may assert a
statutory disability: “(A) a physical or mental impairment that substantially limits one or more major
life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment.” 42 U.S.C. § 12131(1).
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SGAS argues that it was only required to reasonably accommodate Atkinson’s hearing loss
because Atkinson never gave them notice of other disabilities and the medically necessary
accommodations. He never mentioned other impairments in a doctor’s note or provided any
evidence of disability apart from the hearing loss. He also did not include them in his January 6,
2013, internal complaint or his EEOC charge. Ekstrand v. School Dist. Of Somerset, 583 F.3d 972, 976
(7th Cir. 2009) (“[T]he ADA demonstrates that a reasonable accommodation is connected to what
the employer knows about the employee’s precise limitations. See 42 U.S.C. § 12112(b)(5)(A).”).
Thus, the only disability that Atkinson established is deafness in his left ear.
SGAS argues that it reasonably accommodated Atkinson’s disabling hearing loss. On both
the TMT and Administration teams, SGAS located Atkinson’s workstation near his co-workers, who
were instructed to communicate with him by walking to him and speaking into his functioning ear.
SGAS further asserts that it accommodated Atkinson in other ways by giving him six months leave
in 2012, providing time off for medical appointments, and giving him every item requested in his
doctor’s notes (regular start time, ergonomic keyboard, non-flashing monitors). Atkinson did not
return to work until his physician cleared him to do so. SGAS did not rush Atkinson’s return to
work and told him he could work shorter days initially.
Atkinson asserts that SGAS should have returned him to his prior work space in a corner
that allowed him to have his left ear against a wall. Atkinson’s other demands, like requests for
“tools” and “training,” were unsupported by any medical need or were wholly unrelated to any
disability or medical condition. The ADA does not entitle a disabled employee to the
accommodation of his choice. Swanson v. Vill. of Flossmoor, 794 F.3d 820, 827 (7th Cir. 2015).
Additionally, “an employer’s accommodation duty is triggered only in situations where an individual
who is qualified on paper requires an accommodation in order to be able to perform the essential
functions of the job.” Brumfield v. City of Chicago, 735 F.3d 619, 632 (7th Cir. 2013). Atkinson admits
that he was able to perform all the essential functions of his job.
This Court grants summary judgment in favor of SGAS on Count I because it made efforts
to reasonably accommodate Atkinson’s hearing disability. Furthermore, Atkinson has not presented
evidence that specific medical needs required other accommodations. Atkinson also admits that he
was able to perform his job.
3. Count II: Disability Discrimination
SGAS moves for summary judgment on Count II, arguing that Atkinson fails to show that
he suffered an adverse employment action and also fails to show a causal connection between any
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alleged action by SGAS and Atkinson’s disability. The Seventh Circuit Court of Appeals in Ortiz v.
Werner Enterprises, Inc., __ F.3d __, 2016 WL 441434 (7th Cir. Aug. 19, 2016), overrules several
opinions that use the framework of the “convincing mosaic,” which the court believes needlessly
complicates the employment discrimination analysis. Instead, the court held, the question is simply
whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s protected
class, in this case disability, caused an adverse employment action. Id. “Evidence must be considered
as a whole, rather than asking whether any particular piece of evidence proves the case by itself-or
whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence. Evidence is evidence. Relevant
evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated
differently from other evidence because it can be labeled ‘direct’ or ‘indirect.’” Id.
“In a discrimination case, a materially adverse employment action is one which visits upon a
plaintiff a significant change in employment status. Such changes can involve the employee’s current
wealth, his career prospects, or changes to work conditions that include humiliating, degrading,
unsafe, unhealthy, or otherwise significant negative alteration in the workplace.” Boss v. Castro, 816
F.3d 910, 917 (7th Cir. 2016) (internal citations omitted). Atkinson fails to establish any adverse
employment action.
First, the record shows that SGAS did not terminate his employment. Instead, he resigned
from his job by refusing to sign the employment agreement that all employees were required to sign
after the merger between Newedge and SGAS. The record indicated that the three other Newedge
employees who refused to sign the employment agreement were likewise deemed to have resigned
and did not receive severance. Second, Atkinson’s reassignment to the Administration team was not
a demotion or other type of “adverse action” for discrimination purposes because it was at the same
pay and with a comparable “Analyst” title. SGAS contends the move was better suited to Atkinson’s
skills at that time. SGAS refers to customer and business line complaints as part of what led to
Atkinson’s negative performance evaluation in January 2013 and subsequent reassignment. 2
Atkinson’s other claimed adverse actions, including failing to provide certain training,
COBRA coverage, AD&D insurance coverage, and therapy among other things, do not constitute
adverse employment actions. He admits that he cancelled some training sessions that had been
Atkinson asserts that these service complaints are hearsay. However, the complaints do not constitute hearsay in this
instance because they are not offered for their truth. Instead, SGAS relies on the complaints to show that it received
complaints directed at Atkinson’s conduct. See Fed.R.Evid. 801(c) (defining hearsay as an out-of-court statement offered
to prove the truth of the matter asserted). The complaints are also admissible as a hearsay exception to show SGAS’
motive for Atkinson’s negative performance evaluation and for transferring him to a different team. Fed.R.Evid. 803(3).
2
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offered, admits that he never filled out the COBRA paperwork, and admits that he did not complete
forms for AD&D coverage. Moreover, none of these complaints constitute adverse employment
action because Atkinson cannot show material harm resulted from these actions. See Traylor v. Brown,
295 F.3d 783, 788-89 (7th Cir. 2002). “[N]ot everything that makes an employee unhappy will suffice
to meet the adverse action requirement.” Id.
SGAS also argues that Atkinson cannot establish that the alleged discrimination was on the
basis of disability. SGAS argues that even if Atkinson could show an adverse employment, there is
no evidence from which a reasonable fact finder could conclude that his left ear deafness (or any
other alleged condition) was the “but-for” cause of any adverse action. Serwatka v. Rockwell
Automation, Inc., 591 F3d 957, 962 (7th Cir. 2010). Without being able to establish an adverse
employment action for which his disability is a “but-for” cause, Atkinson cannot establish
discrimination. This Court finds nothing in the record connecting the various claimed adverse
actions to Atkinson’s hearing loss or other claimed disabling conditions. Accordingly, this Court
grants summary judgment in favor of SGAS on Count II.
4. Count III: ADA Retaliation
SGAS argues that it is entitled to summary judgment on Count III because Atkinson can
establish neither an adverse action nor can he show a causal link between the adverse action and a
protected activity. To establish retaliation based on a disability, Atkinson must present evidence,
direct or circumstantial of an adverse employment action causally connected to a protected activity,
for example complaining about a lack of accommodation. See Anderson v. Donahoe, 699 F.3d 989, 994995 (7th Cir. 2012). In the context of retaliation the standard to determine whether an action is
adverse is whether it “might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Boss, 816 F.3d at 918. Title VII does not establish a code of civility for the
workplace. “[Title VII’s] anti-retaliation provision does not protect against petty slights, minor
annoyances, and bad manners. An employee must suffer something more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Id. at 918-19.
Atkinson cannot establish retaliation caused by his engagement in a protected activity. Even
if this Court assumes that the negative performance evaluation that Atkinson received in January
2013 or his reassignment to a different team within the company in February 2013 were adverse
employment actions there is no evidence, direct or circumstantial, that either were connected to his
complaints about the accommodations he received. Although there was close temporal proximity
between his negative performance evaluation in January 2013 and his February 2013 reassignment to
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the Administration team following his formal internal complaint submitted on January 6, 2013.
SGAS regularly performed its employee reviews in January for the prior year. Not every instance of
close temporal proximity of a complaint and a change in employment constitutes retaliation because
there are many factors that contribute to employment decisions. Further, Atkinson admitted much
of the conduct that was contained in the service complaints and, even if they were an inaccurate
reflection of Atkinson’s work, SGAS reasonably relied on the complaints in good-faith. Moreover,
Atkinson does not claim that SGAS retaliated against him in his performance reviews for 2013 and
2014, but only the performance review for 2012 (performed in January 2013). In order to establish
retaliation, more is required than simply timing. See Castro v. DeVry Univ., Inc., 786 F.3d 559, 565 (7th
Cir. 2015); O'Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011) (Suspicious timing alone
is rarely sufficient to establish causation.) This Court grants summary judgment on Count III since
Atkinson cannot connect his disability or requests for accommodation or internal complaints about
lack of accommodation to any retaliatory action.
Conclusion
This Court does not discount in any way the severity of plaintiff’s injuries. Despite his
injuries, plaintiff ably represented himself in this matter. However, there is no evidence in the record
establishing a factual question for a jury to resolve. Based on the foregoing discussion, this Court
grants summary judgment in favor of defendant SGAS. Civil case terminated.
IT IS SO ORDERED.
ENTERED:
Dated: December 12, 2016
____________________________________
SHARON JOHNSON COLEMAN
United States District Judge
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