Atkinson v. UA Airlines

Filing 61

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 1/4/2017: Defendant's motion for summary judgment is granted. Enter judgment and terminate civil case. [For further detail see attached order.] Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY J. ATKINSON,
Plaintiff,

No. 14 CV 10367

v.

Judge Manish S. Shah

UA AIRLINES,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Anthony J. Atkinson alleged that his former employer, UA Airlines,
fired him on the basis of his age and race and in retaliation for making a racediscrimination claim. Defendant moved for summary judgment, and during the
briefing of this motion, Plaintiff withdrew his age-discrimination claim, leaving only
the Title VII discrimination and retaliation charges at issue. See 42 U.S.C.
§§ 2000e, et seq. For the following reasons, defendant’s motion is granted.
I.

Legal Standard
Summary judgment obviates the need for a trial where there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “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 (1986). To determine
whether any genuine fact issue exists, a court must assess the proof as presented in
the record, including depositions, answers to interrogatories, admissions, and

affidavits, view the facts in the light most favorable to the non-moving party, and
draw all reasonable inferences in that party’s favor. Fed. R. Civ. P. 56(c); Scott v.
Harris, 550 U.S. 372, 378 (2007). The court may not weigh conflicting evidence or
make credibility determinations. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629
F.3d 697, 704 (7th Cir. 2011). If a claim or defense is factually unsupported, the
court should dispose of it at the summary judgment stage. Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986). The party seeking summary judgment bears
the initial burden of proving there is no genuine issue of material fact. Id. at 323. In
response, the non-moving party cannot rest on bare pleadings but must designate
specific material facts showing there is a genuine issue for trial. Id. at 324; Insolia
v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000).
II.

Background
Defendant

UA

Airlines

employed

Plaintiff

Anthony

Atkinson

from

approximately October 28, 1985 to October 6, 2014. Atkinson is African-American.
United maintains an Employee Handbook called the Working Together
Guidelines,

and

Atkinson

received

a

copy.

Within

the

Guidelines,

a

“Professionalism” policy states in relevant part that employees must “communicate
and perform all duties in a safe, courteous, helpful, competent, dependable and
businesslike manner[,] act in ways that reflect favorably on the company, yourself
and your co-workers[, and] refrain from aggressive or threatening behavior,
whether through words or actions.” Additionally, the Guidelines contain a ViolenceFree Workplace Policy stating in part:

2

United Airlines is committed to providing a work
environment that is free from acts and/or threats of
violence. We recognize that our co-workers face some
significant challenges every day when they report to
work, but dealing with threats and physical violence
should not be one of them. United Airlines will not
tolerate any form of violence and/or threat of violence in
our workplaces or to co-workers as they perform their
work duties. We believe that all co-workers have a basic
right to be safe and secure in the workplace. The
Company will not tolerate any behavior which endangers
the safety of its co-workers or customers.
Co-workers who violate this policy may be subject to
disciplinary action, up to and including discharge.
Customers and other non-co-workers are also subject to
this policy while on United Airlines’ premises or otherwise
interacting with United Airlines co-workers during the
course of, or as a result of, performing their work duties.
In 2013, Atkinson read and signed the Terminal Lead Minimum
Expectations, which state in part that Terminal Leads shall “[l]ead and direct your
people setting a good professional example.”
Atkinson began his tenure with United as a mechanic in San Francisco and
transferred to the same position at Chicago O’Hare International Airport in 2003.
In 2012 he became a Lead Line Technician, a promotion that accrued strictly as a
result of his seniority. From October 1985 to July of 2011, Atkinson did not receive
any discipline for violent or aggressive language or behavior in the workplace, nor
was he aware of being investigated for such behavior.
A.

The Bokowy-Martinez Incident

On July 2, 2011, Atkinson was late for his shift. The lead, Jerry Martinez,
assigned another employee, Tom Bokowy, to Atkinson’s area and reassigned

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Atkinson to a different area once he arrived. Atkinson then called his supervisor,
Robert Raizk, to complain. Atkinson asked Raizk, in reference to Martinez, “How do
you want me to bring him down, by the throat?” Atkinson does not deny saying this,
but clarifies that he was joking. Bokowy complained to Martinez that Atkinson
threatened him and told him to “shut the fuck up,” which Atkinson does not deny
but says was prompted by Bokowy yelling at him and interrupting him.
This incident resulted in Atkinson being held out of service, suspended,
losing a week of pay, and receiving a Level 3 discipline, which stated in part:
“Anthony on July 2, 2011 you were held out of service after an investigation found
you had violated the working together guidelines and the violence-free workplace
policy. We found that the remarks you made to your co-workers were threatening
and intimidating. . . . Threatening behavior is unacceptable and under no
circumstances will physical violence or threatening behavior be tolerated. . . . It is
with the violation of these guidelines that we are proposing a Level 3 and asking
you to seek the assistance from [the Employee Assistance Program] offered by
United Airlines.” Garrett West, Senior Manager of Technical Operations, issued
Atkinson’s Level 3 discipline. West is white and is aware that Atkinson is AfricanAmerican.
Atkinson did not go to the EAP as requested. On September 19, 2011, after
challenging the disciplinary action against him, Atkinson received a response from
Employee Compliance Senior Manager Wayne Slaughter, who affirmed that the
discipline was justified.

4

B.

The Le Pla Incident

On December 16, 2013, day-shift Lead Line Technician Glenn Le Pla told his
shift manager Brian Kummerer that Le Pla and Atkinson had gotten into an
altercation in the lead’s office. Kummerer collected witness statements from Jerome
Bovy, Bob Jensky, Matt Billen, Michael Churas, Doug Adams, Atkinson and Le Pla.
All were witnesses to the incident and all but Atkinson are white. Kummerer
turned the witness statements over to Linda Ross, Human Resources Manager, who
reviewed them. Additionally, Atkinson made a complaint against Le Pla to United’s
ethics and compliance hotline, which Ross investigated. She personally interviewed
all seven witnesses during the course of her investigation.
According to witnesses, during the heated confrontation the men yelled,
screamed, cursed, and slammed doors. Atkinson jumped or lunged out of his seat,
stood close to Le Pla’s face in a threatening manner, and “verbally attacked” Le Pla.
Atkinson alleges that Le Pla slammed the door on Atkinson’s hand twice, injuring
it, but the other witnesses do not corroborate this. Le Pla does admit to slamming
the door, but Ross’s understanding based on her investigation was that he slammed
the door so he could speak privately with Atkinson. Atkinson reported the incident
to his foreman and saw a doctor for injuries to his hand. He also provided a typed
written statement, which he had someone else sign for him due to his hand injury.
West decided not to place either Le Pla or Atkinson out of service at this time.
On December 23, 2013, Atkinson told Ross that he had been assaulted during
the Le Pla Incident and was upset that no one had contacted him. That day,

5

Atkinson met with West and Kummerer, with Ross participating by telephone.
During the meeting, Atkinson grew agitated as he explained his side of the story.
Atkinson admits to saying in reference to Le Pla, “I’m going to fight him to his
death if—if this happens again.” However, he denies saying, “People keep pushing
me, I’m going to take them out,” which both Ross and West recall him saying.
Atkinson also denies that West ever asked him to sit down or calm down, though
West recalls doing so in response to Atkinson’s “very agitated, aggravated, and
aggressive” demeanor.
Pursuant to policy, Atkinson received a “close out” letter on February 4, 2014,
from Ross in response to his complaint to the ethics and compliance hotline. The
letter stated in part, “I was unable to substantiate that an assault occurred;
however the facts support that there was an argument and the Day Shift Lead did
swing the door open abruptly which may have struck your hand.” Ross also noted
that Le Pla’s behavior was in violation of the Working Together Guidelines and
Violence-Free Workplace. The close-out letter did not mention any potential or
recommended discipline with respect to Atkinson, since he was the complainant in
this particular investigation and discussion of a complainant’s infractions would not
have been dealt with in a close-out letter.
Nevertheless, Atkinson was not disciplined or verbally counseled on or
immediately after December 23. He was not advised that his fight with Le Pla had
violated United’s policies until he received notice of his pending termination on

6

April 1, 2014. Ross did recommend to West that Le Pla be disciplined and West
provided him with verbal counseling.
C.

The Rothlisberger Incident

On December 29, 2013, two weeks after the Le Pla Incident, Atkinson
encountered Mike Rothlisberger in the doorway of the lead office. Defendant states
that Atkinson brushed past Rothlisberger to get into the office without first asking
him to move, and made physical contact with Rothlisberger’s shoulder as he did so.
Rothlisberger became angry and shouted, “Get the fuck off me.” Atkinson counters
that the only contact he made was tapping Rothlisberger on the shoulder to attempt
to move past him.
During its investigation into the Rothlisberger incident, United collected
statements from Atkinson, Rothlisberger, and other witnesses. Atkinson and Jesse
Peoples are African-American, while the remaining four witnesses are white. In
Rothlisberger’s statement, he noted, “This is yet another example of [Atkinson’s]
bullying and intimidation tactics that he employs from time to time in an attempt to
provoke anyone he can lure into a confrontation. Again, as I have stated in previous
letters, I strongly feel that United Airlines shares responsibility for continuing to
allow/enable this behavior that is at the center of the hostile work environment that
is constantly present here at Charlie North.” Co-worker Mark Simpson had a tense
encounter with Atkinson shortly before the Atkinson-Rothlisberger confrontation,
and also gave a statement to United. Simpson concluded, “Simply put [Atkinson] is
a bully.” Jesse Peoples described Atkinson trying to get through the doorway “like

7

‘you mind stepping aside so I can come in,’” and added, “[Atkinson] only put his
hands on [Rothlisberger] because he was in the room door way,” and “I wouldn’t call
it hostile it was more stupidity.”
West held Atkinson out of service during the investigation of the
Rothlisberger incident due in part to Atkinson’s accumulation of three incidents in
quick succession. The parties dispute whether Atkinson ever received his pay from
that period. West testified that he did not hold Rothlisberger out of service because
there were no allegations of physical assault or contact against Rothlisberger and
because Rothlisberger had not been involved in multiple recent incidents, as
Atkinson was. However, Ross recommended that Rothlisberger be disciplined and
Kummerer spoke to Rothlisberger about company expectations and the Working
Together Guidelines.
Atkinson made another complaint to the ethics and compliance hotline
regarding Rothlisberger’s conduct. On February 5, 2014, Ross sent Atkinson
another close-out letter stating in part, “the investigation revealed that you did not
push Mike Rothlisberger,” and that Rothlisberger was in violation of the Working
Together Guidelines and Violence-Free Workplace policy. Once again, this letter did
not comment on Atkinson’s behavior since he was the complainant in this ethics
investigation. Ross explained in her declaration to this court that the fact that she
did not include disciplinary recommendations regarding Atkinson in either the
February 4 or February 5 close-out letters did not indicate that his behavior did not
warrant discipline.

8

D.

Plaintiff’s Workplace Complaints

On a series of occasions overlapping with these co-worker incidents, Atkinson
lodged complaints of racial discrimination against United. On December 30, 2013,
he filed a complaint with Ethics and Compliance alleging that West, Rothlisberger
and Bill Zydel racially discriminated against him by placing him out of service
pending investigation of the Rothlisberger incident, and that African Americans are
placed out of service for incidents that are discounted when white workers are
involved. Ross investigated this complaint.
On January 15, 2014, Atkinson complained to Ross that he was being
discriminated against on the basis of his race. Ross testified that she discussed this
complaint with West after the investigations were closed out and that in the
January 15 meeting, Atkinson could not give any details supporting his belief that
he was the victim of racial discrimination.
On January 22, 2014, Atkinson filed a charge of race discrimination and
retaliation with the Equal Employment Opportunity Commission. He amended this
charge on March 17, 2014, and again on April 22, 2014, to reflect the further
disciplinary action against him, including the Last Chance Agreement described
below.
E.

Potential Comparators

Atkinson also made four accusations regarding verbal altercations and cursefilled arguments with white co-workers who he contends were responsible for the
altercations and were not disciplined to the degree that Atkinson was. The first of

9

these involved Le Pla, in the incident described above. The second is a separate
incident involving Rothlisberger, who allegedly swore at Atkinson and got in his
face, calling him stupid and acting as though he were going to hit him. John
Maddox, an African-American co-worker, had to restrain Rothlisberger and tell him,
“It’s not worth it.” Maddox also stated that Atkinson provoked the incident.
Atkinson reported this incident to his foreman, who promised to speak to
Rothlisberger but later told Atkinson he had forgotten all about it. Atkinson then
filed a written complaint and discussed the issue with managers Brian Kummerer
and Dave Hostetler as well as a union steward. There is no documentation
suggesting the incident was further investigated.
The third incident involved Thomas Bokowy, who allegedly told Atkinson
that Martin Luther King and Muhammad Ali were “fakes” and made reference to
what he would do to Atkinson with a gun if he were in Atkinson’s neighborhood.*
There is no record of a hotline complaint regarding Bokowy’s gun comments, and
Atkinson admitted that he didn’t report them to West but instead reported only the
Martin Luther King and Muhammad Ali comments. Atkinson also complained that
Bokowy was sharpening knives in front of him and making threatening facial
expressions. TSA later confiscated the knives and Bokowy was moved to another
area of the workplace and counseled on the Working Together Guidelines. This was
Bokowy’s first disciplinary incident. Atkinson called the Ethics hotline on November
22, 2011, to complain that he had been held out service for the Martinez incident
This incident occurred in 2011 and is thus time-barred. However, it is relevant evidence of
plaintiff’s claim of United’s practice of discrimination. Mathewson v. National Automatic
Tool Co., Inc., 807 F.2d 87, 90 (7th Cir. 1986).

*

10

while Bokowy was not held out of service for the knife-sharpening incident. United
confirmed that Bokowy had brought knives to work, but could not confirm whether
they were used specifically to intimidate Atkinson.
The fourth incident occurred on August 21, 2012, and involved John Del
Carlo, who United confirms yelled “fuck you” at Atkinson in a “very loud and
aggressive manner.” Atkinson did not allege threatening or violent behavior by Del
Carlo. In an October 22, 2012 letter to Atkinson, United stated that “corrective
action was taken” against Del Carlo but did not elaborate on what that entailed.
Del Carlo, Rothlisberger, Bokowy, and Le Pla were all managed by West at
the time of these incidents, were all either Mechanics or Lead Mechanics, and were
all subject to the Working Together Guidelines and Violence-Free Workplace Policy,
as was Atkinson.
F.

The Last Chance Agreement and Termination

Ross prepared an Investigation Summary Report in which she considered
Atkinson’s entire disciplinary history and concluded that his behavior was creating
“a hostile work environment . . . His crew has advised each other not to be alone
with Atkinson; he intimidates, ‘He traps you. He gets between you and a door so
there’s no escape’; and ‘gets inches from people’s face.’” In mid-January 2014, Ross
completed her investigation of the Le Pla and Rothlisberger incidents and embarked
on several months of conversations and meetings with West and other leadership,
United’s legal, HR and Labor departments, Employee Compliance, and the EAP
regarding whether to give Atkinson a Last Chance Agreement or terminate his

11

employment immediately. Ross testified that management ultimately decided to
give Atkinson an LCA out of consideration for his long tenure with United.
On April 1, 2014, Atkinson and his union representative attended a meeting
where Atkinson was told that his conduct warranted termination but that he could
avoid termination by signing the LCA. A letter dated the same day informed
Atkinson that “we value your employment at United and hope you will take the
necessary steps to continue a long and successful career,” and urged him to contact
the EAP with any issues. A separate letter on April 1, 2014, laid out of the terms of
the LCA, which included a mandatory referral to the EAP and an undated
resignation letter to be used by United in the event Atkinson failed to satisfy the
terms and conditions of the LCA. The LCA also stated: “You expressly waive all
other right to contest, inter alia, the propriety, severity, fairness, or reasonableness
of any termination pursuant to this paragraph.” Initially, Atkinson signed and
dated the LCA but refused to sign the letter of resignation. He and/or his attorney
then negotiated over the wording of the resignation letter.
On July 14, 2014, HR re-sent the LCA and a revised letter of resignation to
Atkinson. The July 14 letter also referenced a complaint Atkinson had lodged with
the Ethics & Compliance office, alleging a conspiracy to frame him with false
allegations and stating in part: “THIS COMPANY HAVE [sic] A LOT OF EVIL
LURKING WITHIN ITSELF. MY NEW PURPOSE AND JOB IS TO DESTROY
THIS EVIL . . . I WILL DESTROYED [sic] THIS LURKING EVIL WITH GODS
HELP OF COURSE. YOU PEOPLE HAVE NO BELIEF IN GOD. GOOD LUCK U

12

WILL NEED IT.” The July 14, 2014 letter stated that United considered Atkinson’s
letter to be a threat in violation of company policy and that similar threats or
conduct would result in termination.
After receiving the July 14 letter, Atkinson refused to sign either the re-sent
LCA or the revised resignation letter. However, neither Atkinson nor his attorney
raised other issues with United regarding either the LCA or the resignation letter.
On October 7, 2014, Atkinson received a letter of termination from United,
stating that because he failed to respond to their offer, his employment was
terminated.
III.

Discussion
Title VII makes it unlawful for employers to discriminate against employees

because of their sex or race. 42 U.S.C. § 2000e, et seq. “In order to succeed in
a Title VII lawsuit, a plaintiff must show that he is a member of a class protected by
the statute, that he has been the subject of some form of adverse employment
action. . . and that the employer took this adverse action on account of the plaintiff’s
membership in the protected class.” Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th
Cir. 2013) (citing Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J.,
concurring)). Additionally, Title VII forbids retaliating against an employee because
he has opposed any practice made unlawful by the act, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter. Collins v. Am. Red Cross, 715 F.3d
994, 998 (7th Cir. 2013) (quoting 42 U.S.C. § 2000e–3(a)).

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A plaintiff can demonstrate discrimination by proving that he 1) belongs to a
protected class, 2) met his employer’s legitimate expectations, 3) suffered an
adverse employment action, and 4) received disparate treatment from similarly
situated employees who were not members of the protected class. But this is just
one possible pattern that suggests discrimination. Direct and indirect evidence can
and must be considered together. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760,
765–66 (7th Cir. 2016). The district courts must consider “the broader question [of]
whether ‘a reasonable factfinder [could] conclude that the plaintiff’s race, ethnicity,
sex, religion, or other proscribed factor caused the discharge or other adverse
employment action.” Hudson v. Miramed Revenue Grp., 2016 WL 6948374, at *5
(N.D. Ill. 2016) (citing Ortiz, 834 F.3d at 765). Under Ortiz, “[T]he sole question that
matters [is w]hether a reasonable juror could conclude that [the plaintiff] would
have kept his job if he had a different ethnicity, and everything else had remained
the same . . . all evidence belongs in a single pile and must be evaluated as a whole.”
Ortiz, 834 F.3d at 764–66.
A.

Plaintiff’s Discrimination Claim

A jury could not conclude that, but for his race, Atkinson’s employment would
not have been terminated. Among the disruptive and aggressive incidents that are
catalogued above, there are at least three documented, undisputed instances in
which Atkinson voiced threats to his co-workers: the Martinez incident (“How do
you want me to bring him down, by the throat?”), the Le Pla incident (“I’m going to
fight him to the death if—if this happens again”), and the 2014 ethics & compliance

14

complaint (“THIS COMPANY HAVE A LOT OF EVIL LURKING WITHIN ITSELF.
MY NEW PURPOSE AND JOB IS TO DESTROY THIS EVIL . . . GOOD LUCK U
WILL NEED IT.”) Although I accept Atkinson’s characterization that he was joking
with respect to Martinez, Atkinson still had multiple violations of United’s Working
Together Guidelines and Violence-Free Workplace Policy. The incidents accelerated
in the months preceding Atkinson’s termination. Moreover, he was given frequent
warnings and opportunities to conform to company standards and his behavior did
not improve.
Atkinson attempts to offset his own admitted violations of company policy by
contrasting his disciplinary history and conduct with that of four white co-workers.
“Whether a comparator is similarly situated is ‘usually a question for the factfinder,’ and summary judgment is appropriate only when ‘no reasonable fact-finder
could find that plaintiffs have met their burden on the issue.’” Coleman v. Donahoe,
667 F.3d 835, 846–47 (7th Cir. 2012) (quoting Srail v. Village of Lisle, 588 F.3d 940,
945 (7th Cir. 2009)). “There must be ‘enough common factors . . . to allow for a
meaningful comparison in order to divine whether intentional discrimination was at
play.’” Id. at 847 (quoting Barricks v. Eli Lilly and Co., 481 F.3d 556, 560 (7th Cir.
2007)).
First, Atkinson argues that he was unfairly placed out of service after the Le
Pla incident while Le Pla was not placed out of service, even though the allegations
against Atkinson were merely lunging at Le Pla and verbally attacking him
whereas the allegations against Le Pla included slamming Atkinson’s finger in the

15

door. However, Atkinson was not placed out of service immediately; it was only
after the December 29 Rothlisberger incident—Plaintiff’s third incident in a short
period of time—that West decided to take that action against Atkinson. Unlike Le
Pla, Atkinson had a disciplinary history (the 2011 Martinez incident) and witnesses
corroborated his aggressive behavior, while no witnesses corroborated Atkinson’s
claim about Le Pla. Although West had not yet interviewed witnesses when he
made the decision to hold Atkinson out of service, he had received the report from
Kummerer that did not contain any corroboration of Atkinson’s claim. Moreover,
even Atkinson did not claim that Le Pla intentionally slammed the door on his
hand, rendering this allegation less serious than it might seem at first glance.
Because the claims against Le Pla were not corroborated and were of a less serious
nature, because Le Pla was not involved in three aggressive incidents in a short
period of time, and because Le Pla had no documented, prior history of workplace
policy violations, he is not similarly situated to Atkinson and thus not a useful
comparator.
Next, Atkinson alleges that Rothlisberger was never disciplined after he
swore at Atkinson, got in his face, called him stupid, and acted as if he were going
to hit him. Yet Atkinson doesn’t contend that Rothlisberger had a long or checkered
disciplinary history, which United has consistently cited as the reason for its
harsher treatment of Atkinson. Additionally, Maddox, an African-American coworker who witnessed the event, said that Atkinson, not Rothlisberger, started the
altercation. By contrast, in the incidents where Atkinson was disciplined, witnesses

16

corroborated his aggressive behavior and no one besides Atkinson himself argued
that he was responding to provocation. Thus, even if United mishandled its
investigation of Rothlisberger, his underlying conduct does not serve as a useful
comparison to Atkinson’s own slew of aggressive behavior.
The third comparator, Bokowy, was in fact disciplined for the knifesharpening incident. This was his first disciplinary incident. In its investigation,
United could not confirm whether the knives were used to specifically intimidate
Atkinson but nevertheless, they responded to Atkinson’s complaint by counseling
Bokowy and moving his workplace. With respect to the allegation that he spoke
threateningly of what he would do with a gun if he were in Atkinson’s
neighborhood, Atkinson himself admits that he did not report this to West, so the
company’s inaction here is irrelevant. Finally, Bokowy’s comments about Martin
Luther King and Muhammad Ali being “fakes” were disrespectful and antagonizing,
but they were not threatening and as such cannot be put in the same category as
the allegations against Atkinson. So although Bokowy was not placed out of service,
his threatening conduct did not repeat over time. He is not similarly situated to
Atkinson.
The fourth and final comparator is Del Carlo, who angrily and loudly yelled
“fuck you” at Atkinson. This incident is less severe than the Atkinson incidents and
therefore not an instructive comparator. Moreover, Del Carlo did receive corrective
action and it was his first incident.

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Atkinson argues that the reason these four white co-workers have lighter
disciplinary histories than he does is precisely because United punishes AfricanAmerican employees more harshly for similar infractions. While this is theoretically
possible, in this case the argument does not stand up to scrutiny. As discussed
above, Atkinson does not offer any evidence that these comparators engaged in
frequent threats and severe misconduct for which they were not punished or
punished more leniently. Rather, they committed a variety of infractions, many of
which were less serious than Atkinson’s infractions, and some of which triggered
disciplinary action. And none of the four comparators had as many alleged incidents
in as short a time as Atkinson. On this record, no inference of intentional
discrimination can be drawn because there is no pattern of treating similar,
repeated acts of hostility by white employees more favorably than Atkinson was
treated.
Finally, it is undisputed that West testified that throughout his entire tenure
at United, he was unaware of any other employee with three aggressive or
threatening incidents within a short time period. In this context, United has
provided a valid, race-neutral explanation for Atkinson’s firing. The burden thus
shifts to Atkinson to prove that this explanation is a pretext.
To show pretext, “[t]he question is not whether the employer’s stated reason
was inaccurate or unfair, but whether the employer honestly believed the reasons it
has offered to explain the discharge.” Coleman v. Donahoe, 667 F.3d 835, 852 (7th
Cir. 2012) (citing O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.

18

2011)). Atkinson has offered no evidence to suggest that United did not honestly
believe that his disciplinary infractions merited discharge. On the contrary, United
appears to have extended Atkinson many opportunities to correct his behavior and
retain his job, which he declined to do.
For these reasons, no jury could find that but for his race, Atkinson would not
have been discharged. Defendant’s motion for summary judgment on Count I is
granted.
B.

Plaintiff’s Retaliation Claim

Plaintiff’s retaliation claim consists of two parts. First, he contends that the
timing of the termination is suspicious because it was set into motion on April 1,
2014, just a few months after Plaintiff’s January 22, 2014 EEOC charge.
Furthermore, Atkinson received a close-out letter to the Rothlisberger investigation
on February 5, 2014, which found that 1) he did not push Rothlisberger, 2)
Rothlisberger was in violation of the Violence-Free Workplace Policy and Working
Together Guidelines, and 3) Atkinson “would be made whole for being suspended
without pay pending the investigation.” Atkinson argues that the sequence of
events suggests retaliation, since nothing changed between United’s conciliatory
letter on February 5 and the introduction of the LCA on April 1, other than his
EEOC charge. But the February 5 letter was a close-out letter to an investigation of
a complaint against Rothlisberger—any disciplinary decisions made with regard to
Atkinson would have been dealt with separately. In fact, Ross and other managers

19

were still in the process of discussing what to do about Atkinson when the February
5 close-out letter was sent.
“[M]ere temporal proximity between the statutorily protected activity and
the action alleged to have been taken in retaliation for that activity will rarely be
sufficient in and of itself to create a triable issue.” Harper v. C.R. England, Inc., 687
F.3d 297, 308 (7th Cir. 2012) (alterations omitted). Other than timing, there is
nothing in this record that would allow a reasonable jury to infer that the EEOC
charge was a factor in Atkinson’s termination. Instead, Ross’s, West’s, and the other
decision-makers’ written reports and testimony only discuss taking disciplinary
action as a result of Atkinson’s escalating aggressive behavior and repeated
violations of workplace policies. Although Atkinson filed his EEOC charge not long
before United issued the LCA, there is simply no evidence of a causal link between
Atkinson’s protected activity and United’s decision to terminate his employment.
The second piece of Atkinson’s retaliation claim is his argument that the
terms of the LCA were facially retaliatory. The LCA required Plaintiff to “expressly
waive all other right to contest, inter alia, the propriety, severity, fairness, or
reasonableness of any termination pursuant to this paragraph,” which Atkinson
interprets to mean that he was being asked to waive his right to file a Title VII
discrimination claim, among other things. In this reading, the LCA sets up a
Hobson’s choice for Plaintiff—he must sign away his Title VII rights or be fired. The
Seventh Circuit has hinted that such a threat “would be a form of anticipatory

20

retaliation, actionable as retaliation under Title VII.” Beckel v. Wal–Mart Assoc.,
Inc., 301 F.3d 621, 624 (7th Cir. 2002).
However, the hypothesis in Beckel involved an employer who “threatened the
plaintiff with firing her if she sued,” a scenario with a clear causal link between the
protected activity and the retaliatory action. Id. That is not the case here. United
never framed the possibility of termination as a threatened consequence for
Atkinson’s failure to sign the LCA. (In fact, Atkinson did initially sign the LCA.)
Rather, both the decision-makers’ testimony and the LCA itself cited Atkinson’s
violation of workplace policies as the triggering events that led to termination.
Indeed, there is no material dispute that it was Atkinson’s workplace behavior that
set off the chain of events resulting in termination. Thus, there is simply no
evidence that but for Atkinson’s unwillingness to waive his Title VII rights, he
would not have been terminated. In addition to Beckel, Atkinson relies on E.E.O.C.
v. Cognis Corp., 2011 WL 6149819 (C.D. Ill. 2011). The plaintiff in Cognis received
an LCA that included an explicit requirement that he waive his Title VII rights.
Citing Beckel, the court found that although the language of 42 U.S.C. § 2000e–3(a)
does not explicitly prohibit threats of retaliation, “Cognis’s threat of retaliation
contained in the LCAs constitutes a retaliatory policy under Title VII.” Id. at *9.
This was particularly true because the Title VII waiver was unlikely to actually
encourage the plaintiff to improve his work performance; rather, it “simply had the
effect of protecting [the employer] from statutorily protected activity of its
employees for the duration of the LCA, a goal which cannot be achieved legally.” Id.

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There are notable differences between Cognis and the case at bar. Unlike in
Cognis, Atkinson and his counsel never raised the waiver issue when negotiating
other terms, nor did he ask anyone at United whether his interpretation of that
paragraph was correct. Indeed, it was the resignation letter and not the LCA that
he originally refused to sign. The negotiations here were over Atkinson’s
disciplinary infractions and his willingness to correct that behavior going forward.
Neither side contends that the waiver entered into these calculations, nor do they
materially dispute that Atkinson’s disciplinary history was the cause of his
termination.
United’s LCA may have been broader than enforceable. It is certainly broader
than the term that was found unenforceable in Cognis, which only required that
plaintiff to waive his Title VII rights, not “all other right to contest, inter alia, the
propriety, severity, fairness, or reasonableness of any termination pursuant to this
paragraph.” (Emphasis added). But without evidence that Atkinson’s termination
was caused by his failure to execute this waiver, a jury could not conclude that this
language constituted anticipatory retaliation as contemplated in Beckel.
Defendant’s motion for summary judgment on Count II is granted.

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IV.

Conclusion
Defendant’s motion for summary judgment is granted. Enter judgment and

terminate civil case.
ENTER:

_____________________________
Manish S. Shah
United States District Judge

Date: 1/4/2017

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