Atkinson v. Newedge USA LLC

Filing 50

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 8/7/2015:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY DAVID ATKINSON,

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Plaintiff,
v.
SG AMERICAS SECURITIES, LLC,
Defendant.

Case No. 14 cv 9923
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff, Anthony David Atkinson, filed an eight-Count pro se Amended Complaint on
March 10, 2015, alleging disability discrimination, retaliation, and wrongful discharge under the
Americans with Disabilities Act, intentional infliction of emotional distress, ERISA interference and
retaliation, monetary and trade manipulation, and improper medical review. Defendant, SG
Americas Securities, LLC, (“SGAS”) moves to dismiss and/or strike Counts IV-VII [43]. The Court
heard oral argument on the motion on July 31, 2015. For the reasons stated below, the Court grants
the motion.
Background
The following facts are derived from the Amended Complaint and taken as true for
purposes of this motion. Plaintiff Atkinson began his employment with defendant SGAS, then
known as Fimat Facilities Management, as an eTrading Support Analyst in August 2002. He later
became an eSolutions Support Analyst until August 2013. In this role, Atkinson provided support to
500 traders and clients with electronic trading issues. His usual schedule was 6:00 a.m. to 2:30 p.m.
Monday through Friday, working at a well-equipped workstation that had a wall to his left.
On October 18, 2011, Atkinson was in a motorcycle accident and went into a coma. His
injuries from the accident included: total loss of hearing in the left ear; traumatic brain injury;
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fractured skull, injuries to his wrist and arms. Six weeks after the accident, Atkinson returned to
work on November 28, 2011, resuming his normal duties. On March 11, 2012, Atkinson suffered a
traumatic intracerebral hemorrhage while in South Africa. Atkinson remained hospitalized in South
Africa for nearly a month before returning home where he was hospitalized for several days. The
brain hemorrhage left Atkinson with speech problems and balance issues.
Atkinson was originally scheduled to return to work on or about September 14, 2012,
depending on his progress. His physician recommended returning on a half-day schedule to
acclimate to the office and then resume full-time duties. Atkinson returned to full-time work on
October 1, 2012, rather than part-time as his doctor recommended. SGAS told Atkinson the delay
was to prepare his workstation. Upon his return on October 1, 2012, Atkinson’s prior workstation
had been dismantled and he was placed in a different workspace without a functioning phone, or a
computer, and lacked many of the tools and systems access that he had prior to his injury. The other
team members in his department had the tools, access, and functionality required to perform their
jobs within reasonable reach of their workstations. Atkinson’s prior desktop computers had been
removed. They contained his work of the previous 10 years, including contacts, notes, etc. When
Atkinson found his old computer in another workspace, his supervise told him he could not use it.
Atkinson resumed his duties on an unused laptop. SGAS eventually provided a new desktop
computer and ergonomic keyboard.
Atkinson alleges that his manager, Greg Stephens, began to unreasonably increase his
workload and responsibilities, most of which were menial and normally divided among the whole
team or assigned to junior staff. In January 2012, Atkinson asked his manager, Greg Stephens, the
Manager of eSolutions Support US, Graham Hughes, Global Head of Front Office Support, and
Lisa Foster, Human Resources Manager, for accommodations including: his old workspace where
his left ear would be to the wall, an ergonomic keyboard, and a work schedule with the hours he had
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before his injury so that he could attend therapy and medical visits in the afternoons. Foster inquired
whether he was capable of performing his duties, to which Atkinson replied that he was able to
perform his job functions. SGAS did not provide the accommodations.
Atkinson alleges that since his return to work and until his termination, SGAS withheld
access and passwords to systems that he needed to perform his job functions. His manager has
attributed e-trading system errors to him when they were due to someone else’s error. Stephens
refused to give Atkinson access to the error reports so that he could fix the inaccuracy. After his
return to the office, Atkinson was on a variable work schedule that interfered with his ability to
schedule and to attend speech and physical therapy and doctor’s visits. As a result, his speech
worsened.
Three months after his return to work, Atkinson formally submitted a letter of complaint,
per company policy, to Lisa Foster, Harry Kaplan, Andy Roberts, Greg Stephens, and Graham
Hughes, in which he outlined the following complaints: Atkinson’s inability to work overtime even
though his peers were allowed; their refusal to train or assist Atkinson on the systems required to do
his job, including Fidessa, when his peers had already been trained on Fidessa; their refusal to
provide Atkinson with equitable training and support for his Series 99 license, when his peers were
given more support, and their refusal to approach FINRA to renew Atkinson’s expired Series 7
license making the Series 99 unnecessary; their refusal of Atkinson’s requests for error reports to
clear his record when management incorrectly cited him for errors that were not his and were not
found in his employment file in December 2012; their surveillance of Atkinson’s phone calls without
reason, when his peers’ calls were not monitored. Two weeks after Atkinson submitted his
complaint letter, his manager held Atkinson’s 2012 Annual Performance Review, focusing on
October, November, and December. Atkinson received below average ratings on his review for the
first time in his career.
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On January 9, 2013, SGAS responded to Atkinson’s request for accommodation by moving
his workstation, providing an ergonomic keyboard, and a consistent work schedule. According to
Atkinson, the accommodations were temporary and he was assigned to a new project in February
2013, with a different work space and different, variable, schedule. Atkinson’s new workstation was
a two foot by two foot folding table directly under an IT air conditioning vent designed to cool
servers. He claims he was isolated from the eSolutions Support Team and the cold air aggravated his
injuries. Atkinson continued to request a change in workstation and accommodations for his
injuries. In June of 2013, Atkinson alleges that SGAS required him to undergo a medical evaluation.
Atkinson provided letters from his Internist and ENT doctors as documentation of his condition
instead of seeing SGAS’s physician.
In August 2013, SGAS informed Atkinson that his position was being eliminated and
offered him a position as eSolutions Static Data Analyst, which Atkinson considered a demotion.
Lisa Foster in the Human Resources department allegedly told Atkinson to take the position or
SGAS would consider it a resignation. The new position meant that he had to sign various forms
and waivers, which Atkinson believes compromised his rights as an employee. When SGAS bought
out the previous entity Newedge USA LLC, effective January 1, 2015, Atkinson alleges that he was
required to participate in a new private investment policy and a new severance policy. He requested
an exemption from the investment policy to pay for his medical expenses. That request was denied.
On January 14, 2015, SGAS terminated Atkinson’s employment allegedly under the guise of a
resignation.
Atkinson filed a charge of discrimination and retaliation with the Equal Employment
Opportunity Commission on March 11, 2013. He filed an amended charge on June 18, 2014, and an
additional EEOC charge on March 6, 2015. The instant lawsuit followed.

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Legal Standard
In order to withstand a motion to dismiss pursuant to Rule 12(b)(6), the allegations must
contain sufficient factual material that, when accepted as true, state a claim that is plausible on its
face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 570 (2007).
When considering a motion to dismiss, the Court accepts as true all well-pleaded facts and draws all
reasonable inferences in the light most favorable to the non-moving party. Pisciotta v. Old Nat’l
Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). However, a pro se complaint is held to “less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct.
594, 30 L. Ed. 2d 652 (1972).
Pursuant to Rule 12(f), the court “may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Generally, motions to
strike are disfavored as they often serve to delay the proceedings. Heller Financial, Inc. v. Midwhey
Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); Anderson v. Bd. of Educ. of City of Chicago, 169 F.
Supp. 2d 864, 867 (N.D. Ill. 2001). However, motions to strike may also expedite the proceedings by
removing unnecessary clutter from the complaint. Heller Financial Inc., 883 F.2d at 1294.
Discussion
SGAS moves to dismiss Count IV (intentional infliction of emotional distress) and Count V
(interference and retaliation under ERISA), to strike Count VI (improper discharge under the ADA)
and Count VII (monetary and trade manipulation), and to strike or dismiss Count VIII (mandated
medical review in violation of ADA). At oral argument, Atkinson voluntarily withdrew Count VI as
duplicative of his ADA claims in Counts I-III. As explained below, this Court grants the remainder
of the motion.

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1. Intentional Infliction of Emotional Distress
SGAS moves to dismiss Count IV, Atkinson’s intentional infliction of emotional distress
pursuant to Rule 12(b)(6) for failure to state a claim and because it is preempted by the Illinois
Human Rights Act. As this Court noted in Carroll v. YMCA of Metro Chicago, LLC, No. 13-cv-9307,
2015 WL 149024, 2015 U.S. Dist. LEXIS 3217, at *14 n.2 (N.D. Ill. Jan. 9, 2015), there is
considerable disagreement in this district as to whether the IHRA bars a claim for common law
IIED. Although it appears that Atkinson’s IIED claim is inextricably linked to his discrimination
claims under the ADA that the claim would be preempted by the IHRA, (see Maksimovic v. Tsogalis,
177 Ill. 2d 511, 687 N.E.2d 21, 23, 227 Ill. Dec. 98 (Ill. 1997)), this Court need not reach that issue
since Atkinson fails to state a claim for IIED.
In Illinois, to state a claim for IIED Atkinson must allege: (1) “truly extreme and
outrageous” conduct; (2) either SGAS’s intent to inflict severe emotional distress or knowledge of a
high probability that conduct will cause severe emotional distress; and (3) “the conduct must in fact
cause severe emotional distress.” Feltmeier v. Feltmeier, 207 Ill. 2d 263, 798 N.E.2d 75, 80, 278 Ill. Dec.
228 (2003) (emphasis in original). To qualify as IIED, outrageous conduct must be “so extreme as to
go beyond all possible bounds of decency and be regarded as intolerable in a civilized community.”
Id. at 83.
While Atkinson undoubtedly feels aggrieved by SGAS’s conduct, the conduct alleged in the
Amended Complaint does not rise to the level of “truly extreme and outrageous.” Even “a
continuous series of intentionally discriminatory acts” does not necessarily constitute IIED in
Illinois. Van Stan v. Fancy Colours & Co., 125 F.3d 563, 568 (7th Cir. 1997) (finding no viable IIED
claim where the plaintiff’s supervisors knew that he suffered from a bipolar disorder, fired him
because the condition required him to work fewer hours, telephoned him at home while he was on
vacation to tell him that he had been terminated, and falsified the reason for his termination). The
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Seventh Circuit has also held that a plaintiff failed to allege extreme and outrageous conduct even
though she contended that, among other things, her employer refused to allow her to supervise
white subordinates, reprimanded her for no reason, refused to allow her to participate in a
management incentive fund, forced her out of her management position, promised her a promotion
she never received, took away from her major accounts and gave her less lucrative accounts in
return, excluded her from office activities, monitored her telephone calls with an eavesdropping
device and ignored concerns for her health and safety after her personal property was damaged on
company property. Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993). Accordingly,
this Court finds that Atkinson’s allegations, among others, regarding SGAS’s failure to provide a
suitable workstation, consistent schedule, ergonomic keyboard, and adequate training, etc. are
problematic, they do not rise to the level of extreme and outrageous conduct. Count IV is dismissed.
2. Interference and retaliation under ERISA
SGAS moves to dismiss Count V, alleging interference and retaliation under ERISA, for
failure to state a claim. Atkinson alleges in Count V that SGAS violated his rights under ERISA by
failing to take action to implement certain benefits to which Atkinson was entitled. The allegations
in the Amended Complaint on this issue are too vague and conclusory to meet even the low
standard of Iqbal and Twombly. Atkinson contends that he participated in certain plans and disability
policies as an employee and incurred considerable costs as a result of his injury. Additionally, the
Amended Complaint lacks any allegation of SGAS’s specific intent to deprive Atkinson of his
benefits, which is required to establish a claim under section 510 of ERISA. See Isbell v. Allstate Ins.
Co., 418 F.3d 788, 796 (7th Cir. 2005). “The loss of benefits to an employee as a result of an
employer’s action is not, by itself, sufficient to prove a violation of § 510.” Id. Even if Atkinson
could amend his allegations to state a claim, he fails to allege that he exhausted his administrative

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remedies as a precondition to suit. See Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 360 (7th
Cir. 2011). This Court therefore dismisses Count V.
3. Monetary and Trade Manipulation
SGAS moves to strike Count VII under Rule 12(f) as duplicative of Atkinson’s ADA claims
in Counts I, II, and III. As stated on the record during oral argument, this Court agrees. The
allegations asserted in Count VII are adequately addressed in the other ADA Counts and are thus
redundant and need not be brought separately.
4. Requirement of a Medical Exam in Violation of the ADA
SGAS moves to dismiss or strike Count VIII, which alleges that SGAS required Atkinson to
submit to a medical evaluation of his disability in violation of the ADA. SGAS asserts that this claim
was never submitted to the EEOC and should be dismissed for failure to exhaust administrative
remedies. Further, SGAS argues that the Amended Complaint fails to state a claim for a violation of
42 U.S.C. § 12112(d)(4)(A) because it does not show that SGAS required Atkinson to submit to the
exam. Alternatively, SGAS moves to strike this Count as redundant of Atkinson’s other ADA
claims.
At the outset, this Court agrees that the allegations in this Count are redundant to Atkinson’s
ADA claims and thus will be stricken. Additionally, it appears from the EEOC charges that
Atkinson did not raise this issue administratively and therefore he has failed to exhaust his
administrative remedies. At oral argument, Atkinson asserted that he had indeed raised the issue of
the medical exam administratively via a letter. Atkinson also presented several additional facts during
the hearing that appeared not be in the current complaint. 1 This Court finds that Atkinson’s claim
regarding the medical exam should be considered part of his overall claims of discrimination under

Ordinarily, a party opposing a motion to dismiss may not amend the complaint by way of arguments. Pirelli Armstrong
Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 448 (7th Cir. 2011).
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the ADA and thus this Court will not dismiss it for lack of exhaustion. Nevertheless, Count VIII is
stricken as redundant of Counts I, II, and III.
Conclusion
Based on the foregoing discussion, this Court grants defendant SG Americas Securities,
LLC’s motion to dismiss or to strike Counts IV, V, VI, VII, and VIII of the Amended Complaint
[43]. Counts IV and V are dismissed and Counts VI, VII, and VIII are stricken. Prior to the next
status, the parties should meet pursuant to Rule 26(f) and conduct a planning conference and file a
joint status report, proposing a discovery schedule. Status hearing set for Monday, September 21,
2015, at 9:00 a.m.
IT IS SO ORDERED.
Date: August 7, 2015

Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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