Gross v. The Peoples Gas Light and Coke Company et al
Filing
152
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 9/30/2022. Mailed notice(mjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Jerry Gross,
Plaintiff,
v.
Peoples Gas Light and Coke Co. and
WEC Business Services, LLC,
Defendants.
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Case No. 17-cv-3214
Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
This employment discrimination, failure to accommodate, and retaliation suit comes
before the court on defendants’ renewed motion for summary judgment. Plaintiff Jerry Gross
(“Gross”), who at all relevant times identified as an African American man with a disability over
the age of 40 (see Defs.’ Resp. to Pl.’s LR 56.1(b)(3) Am. Stmt. of Material Facts (“RSAF”)
¶ 10, ECF No. 149), brings claims against his alleged former joint employers, The Peoples Gas
Light and Coke Company (“Peoples Gas”), and WEC Business Services, LLC (“WBS”), under
42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C.
§ 2000e et seq.; the Americans with Disabilities Act, as amended (“ADA”), 42 U.S.C. § 12101
et seq.; and the Age Discrimination and Employment Act of 1967, as amended (“ADEA”),
29 U.S.C. § 621 et seq. See Third Am. Compl. 1–2, 7–14, ECF No. 55. Peoples Gas contends
that no reasonable jury could find that it was Gross’s joint employer. Both defendants argue that
Gross has failed to come forward with sufficient evidence to proceed to trial on all claims. For
the following reasons, defendants’ motion is granted except for Gross’s claims based on his nonselection for two internal job vacancies.
I. Summary Judgment Standard and Local Rule 56.1
A. Rule 56 Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that 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 dispute as to any 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). In resolving summary judgment motions, “facts must be viewed
in the light most favorable to,” and all reasonable inferences from the evidence must be drawn in
favor of the nonmoving party–but “only if there is a genuine dispute as to those facts.” Scott v.
Harris, 550 U.S. 372, 380 (2007) (quotation omitted); Blasius v. Angel Auto., Inc., 839 F.3d 639,
644 (7th Cir. 2016) (citing Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016)).
The party seeking summary judgment has the burden of establishing that there is no
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). After “a properly supported motion
for summary judgment is made, the adverse party must” go beyond the pleadings and “set forth
specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 255
(quotation omitted); see also Modrowski, 712 F.3d at 1169 (stating party opposing summary
judgment “must go beyond the pleadings (e.g., produce affidavits, depositions, answers to
interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury
could properly proceed to find a verdict in her favor” (citations and quotations omitted)).
Summary judgment is warranted when the nonmoving party cannot establish an essential
element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer,
679 F.3d 957, 964 (7th Cir. 2012).
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B. Local Rule 56.1 Fact Statements and Memoranda of Law
This court’s Local Rule (“LR”) 56.1 specifies the procedure for presenting facts a party
contends are undisputed and material. The formal requirements of LR 56.1 aid the just, speedy,
and inexpensive resolution of litigation by ensuring that “the facts material to the issues in the
case and the evidence supporting such facts are clearly organized and presented for the court's
summary judgment determination.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219
(7th Cir. 2015). The Seventh Circuit has therefore “routinely upheld the district court’s
discretion in requiring parties to comply strictly with local rule requirements.” Id. (quoting
Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)).
Local Rule 56.1(a)(2) requires a party moving for summary judgment to submit “a
statement of material facts.” The nonmoving party may also submit a “statement of additional
material facts.” LR 56.1(b)(3). These fact statements must “consist of concise numbered
paragraphs” and each paragraph must be “supported by citation to the specific evidentiary
material, including the specific page number, that supports it. The court may disregard any
asserted fact that is not supported with such a citation.” LR 56.1(d)(1)‒(2). The opposing party
may file a response to these fact statements. See LR 56.1(b)(2), (c)(2). “Each paragraph [of the
response] shall set forth the text of the asserted fact (including its citations to the supporting
evidentiary material), and then shall set forth the response.” LR 56.1(e)(1).
(2) Content. Each [paragraph of the] response must admit the asserted fact,
dispute the asserted fact, or admit in part and dispute in part the asserted fact. If
the response admits in part and disputes in part the asserted fact, it must specify
which part of the asserted fact is admitted and which part is disputed. A response
may not set forth any new facts, meaning facts that are not fairly responsive to the
asserted fact to which the response is made. A response may not assert legal
arguments except to make an objection, including objections based on
admissibility, materiality, or absence of evidentiary support. . . .
(3) Citations. To dispute an asserted fact, a party must cite specific evidentiary
material that controverts the fact and must concisely explain how the cited
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material controverts the asserted fact. Asserted facts may be deemed admitted if
not controverted with specific citations to evidentiary material.
LR 56.1(e)(2)‒(3).
This court struck the parties’ first round of summary judgment briefing and fact
statements because both sides violated LR 56.1, and, given the state of the record, the court
determined “that strict enforcement of LR 56.1 is required to ensure an accurate and clear
presentation of the facts at summary judgment.” Order at 5, ECF No. 134 (Jan. 21, 2022). The
“most confounding” of the parties’ violations was Gross’s summary judgment response
memorandum, which contained at least 131 direct citations to summary judgment exhibits and no
citations to the LR 56.1 fact statements. Id. at 3. As this court explained, including direct
citations to summary judgment evidence makes identifying what facts are disputed and what
evidence supports the parties’ factual positions exceedingly difficult. See id. at 3–4 (quoting
Magee v. McDonald’s Corp., 2019 WL 10447014, at *4 (N.D. Ill. Mar. 28, 2019)). The court
also found the citations in defendants’ LR 56.1(a)(2) fact statement lacked the specificity
required by the rule, leaving the court to search through the entire index of exhibits to locate each
document cited. See id. at 4–5 (citing Magee, 2019 WL 10447014, at *4). In ordering
rebriefing, this court stated:
The court does not lightly take the step of ordering rebriefing. A great deal of
time and effort likely went into preparing and submitting the parties’ summary
judgment memoranda and LR 56.1 fact statements and responses. Rebriefing
summary judgment will both delay this four-year-old case and impose costs upon
the parties and their counsel. Nevertheless, after attempting to sift through the
exhibits, legal memoranda, and fact statements, the court concludes that strict
enforcement of LR 56.1 is required to ensure an accurate and clear presentation of
the facts at summary judgment.
Id. at 5.
The present round of summary judgment memoranda and fact statements have remedied
some of the issues the court identified. But, overall, the amended memoranda and LR 56.1 fact
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statements continue to make determining what facts are disputed and, in some instances, what
arguments the parties are making exceedingly difficult.
First, Gross added occasional citations to the LR 56.1 fact statements to his amended
memorandum of law opposing summary judgment, but he continues to cite directly to summary
judgment evidence throughout, in violation of LR 56.1. See, e.g., Pl.’s Resp. in Opp. to Defs.’
Mem. Supp. Mot. Summ. J. (“Resp.”) 7–25, ECF No. 144. For example, Gross supports his
factual position on joint employment entirely with direct citations to his deposition testimony.
See id. at 6–7. For the reasons given when the first round of summary judgment briefing was
stricken, the court disregards all of Gross’s direct citations to summary judgment evidence in his
amended response memorandum. See, e.g., Mervyn v. Nelson Westerberg, Inc., 142 F. Supp. 3d
663, 664‒66 (N.D. Ill. 2015) (collecting cases).
Next, both sides contend that the evidence their opponent cites does not support, in part
or in full, certain paragraphs of the LR 56.1 fact statements. See, e.g., Pl.’s Resp. to Defs.’
LR 56.1(a)(2) Am. Stmt. of Material Facts (“RSOF”) ¶¶ 8, 12, 25, 36, 38, ECF No. 143; RSAF
¶¶ 9, 16, 25. As it is required to do, the court independently determines whether and to what
extent each paragraph of the LR 56.1 fact statements is supported by the cited evidence. See
Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). Indeed, the evidence cited in
support of certain undisputed paragraphs of the parties’ fact statements does not stand for the
proposition for which it is cited. See, e.g., RSOF ¶¶ 46, 52. To the extent the facts not supported
by the cited evidence are material, they will be discussed below.
Third, both sides rely on Gross’s complaint to support some paragraphs of their fact
statement. At summary judgment, the nonmoving party, here Gross, must “go beyond the
pleadings . . . [and] designate specific facts showing that there is a genuine issue for trial.”
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Celotex, 477 U.S. at 324 (quotation omitted); see also Fed. R. Civ. P. 56(c)(1)(A). Since an
unverified complaint is a pleading, Fed. R. Civ. P. 7(a)(1), “Citations to the complaint do little, if
anything, to show the absence of any genuine issue of material fact.” Baldonado v. Wyeth, 2012
WL 729228, at *2 (N.D. Ill. Mar. 6, 2012) (citing Cracco, 559 F.3d at 632 (other citations
omitted)); see also LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997); Hintz v.
Prudential Ins. Co. of Am., 687 F. Supp. 2d 772, 774 n.2 (N.D. Ill. 2009); Malec v. Sanford,
191 F.R.D. 581, 585 (N.D. Ill. 2000). The court therefore disregards the citations to the third
amended complaint in the parties’ fact statements and responses insofar as the parties rely on
them to show that a material fact is, or is not, genuinely disputed. In some instances, the parties
cite other evidence to support a factual position, so the citation to the complaint is not fatal. See,
e.g., Defs.’ LR 56.1(a)(2) Am. Stmt. of Material Facts (“SOF”) ¶ 23, ECF No. 142; Pl.’s
LR 56.1(b)(3) Am. Stmt. of Material Facts (“SAF”) ¶ 7, 9, ECF No. 143. The court therefore
disregards paragraph 42 of defendants’ fact statement, ECF No. 142, and paragraphs 2 and 4 of
Gross’s statement of additional facts,1 ECF No. 143, because they rely solely on a citation to a
portion of the third amended complaint (denied by defendants in their answer, see Defs.’ Ans. to
Pl.’s Third Am. Compl. ¶¶ 5, 11, 54, ECF No. 57).
Finally, defendants assert that paragraphs 4 and 6 of Gross’s LR 56.1(b)(3) statement of
additional facts are disputed, but defendants cite no evidence in their response to either
paragraph. See RSAF¶¶ 4, 6. Gross similarly disputes paragraphs 4–7 of defendants’
LR 56.1(a)(2) statement of material facts, but he cites no evidence in response to those
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Gross relies solely on his third amended complaint to establish his race, age, and disability status in
paragraph 10 of his statement of additional facts. Defendants admit that Gross identified as a black
man over age 40. ECF No. 57 ¶ 7. Gross’s age and race are therefore undisputed. The court
addresses the dispute over whether Gross was a qualified individual with a disability in Part IV.C,
infra.
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paragraphs.2 RSOF ¶¶ 4–7. The parties’ failure to cite evidence in response to a properly
supported paragraph of a LR 56.1 fact statement results in the paragraph being deemed
undisputed. See Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 710 (7th Cir.
2015) (citing Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)).
However, since Gross cites only his complaint to support paragraph 4 of the SAF, and the
defendants denied the cited paragraph in their answer, the court disregards it.
II. Facts at Summary Judgment
Consistent with the above rulings and the summary judgment standard, the court recites
the facts supported by the admissible summary judgment evidence in the light most favorable to
Gross. Torres v. Madrid, 141 S. Ct. 989, 994 (2021).
A. The Parties
“Gross has a master’s degree in public administration and over 20 years of experience in
Human Resources [(“HR”)], consulting, labor negotiations, and leadership positions.” RSAF ¶ 1
(citing Gross Resume, Pl.’s Tab A, ECF No. 143-2)3. Gross has had high-level HR
responsibilities. For instance, according to his resume, AT&T recruited Gross in 1993 to
establish HR services for a new spinoff company. Gross Resume at 2.
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The facts asserted in paragraphs 4–7 concern joint employer liability. Gross responds that his
memorandum of law will contain argument concerning the inferences to be drawn from the
undisputed facts in these paragraphs. See RSOF ¶¶ 4–7. Gross’s memorandum of law contains no
such argument, however. See Resp. at 6–7. The court sustains Gross’s objection to paragraph 8 of
defendants’ LR 56.1(a)(2) fact statement. Viewed favorably to Gross, the affidavit cited to support
paragraph 8 states that WBS and Peoples Gas are separate companies with separate officers and
employees, but it does not state that Peoples Gas maintains independent corporate bylaws, minutes, or
financial records. See Affidavit of William J. Guc (“Guc Aff.”) ¶ 6, Defs.’ Tab 1, ECF No. 142-1.
The court does not find this factual dispute (or, more accurately, this gap in proof) to be material,
however, because Gross does not rely on it as a basis for imposing joint employer liability. See Resp.
at 6–7.
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Plaintiff’s Tabs A‒O have been docketed electronically as ECF Nos. 143-2 through 143-16,
respectively. Defendants filed their Tabs 1‒7 as a single electronic document, ECF No. 142-1.
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The two defendants–WBS and Peoples Gas–are corporate cousins. In 2015, non-party
holding company, WEC Energy Group, Inc. (“WEC”), acquired Peoples Gas and WBS’s
predecessor company, Integrys Business Services (“IBS”). See RSOF ¶¶ 1–5. Peoples Gas and
WBS have separate employees and corporate officers. RSOF ¶¶ 4, 5; but see id. ¶ 8 (additional
assertions regarding Peoples Gas’s corporate activities not supported by the cited summary
judgment evidence); Guc Aff. ¶¶ 6‒7. In their briefing, the parties use the term WBS to refer
interchangeably to IBS and WBS. The court does as well.
Under an affiliate agreement, WBS provides administrative services to other companies
affiliated with WEC, including Peoples Gas. RSOF ¶ 6. These services include accounting,
safety consulting, and claims administration. Id. As occurred with Gross, WBS employees may
be temporarily or permanently assigned to a Peoples Gas (or another regulated entity’s) facility.
See RSOF ¶¶ 6, 28–29. The affiliate agreement provides that the employee remains a WBS
employee at all times during such an assignment.4 See RSOF ¶ 7.
B. Corporate Policies and Forms
On July 17, 2015, Gross digitally signed a statement attesting that he completed a course
on corporate policies (the record does not disclose the course’s contents). See RSOF ¶ 10;
Affidavit of Amber Tucker (“Tucker Aff.”) ¶ 19, Defs.’ Tab 2, ECF No. 142-1; Tucker Aff. Ex. 8
at 1. Defendants identify a form and several written policies applicable to WBS employees:
(a) Anti-Harassment and Sexual Harassment Policy; (b) Safety and Health Policy; (c) Employee
Selection Policy and Equal Employment Opportunity (“EEO”) Policy; (d) Family and Medical
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The parties have not directed the court to a copy of the affiliate agreement. Defendants rely on an
affidavit summarizing it. See Defs.’ LR 56.1(a)(2) Am. Stmt. of Material Facts (“SOF”) ¶ 7, ECF
No. 142 (citing Guc Aff. ¶ 10). The court implies no findings on the legal effect of the affiliate
agreement.
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Leave Act (“FMLA”) Policy; (e) Time Away From Work Policy; (f) a Non-Occupational Illness
or Injury Return to Work (“RTW”) Form; and (g) Job Accommodations under the Americans
with Disability Act Policy. See RSOF ¶¶ 9, 11–20; Tucker Aff. Exs. 1‒7. Some of the policies in
the record predate WEC’s acquisition in 2015 and refer to one or more predecessor companies,
and the policies state that they were last revised or reviewed on various dates between
October 2014 and August 2015. See, e.g., Tucker Aff. Ex. 4 at 1 (FMLA policy with logo of
predecessor company, Integrys). With one exception discussed in the next paragraph, a policy
which is incomplete in the record, no question has been raised concerning whether the policies in
the record were in effect at all relevant times.5 See RSOF ¶¶ 9–20. Gross contends that a
reasonable jury could conclude that defendants did not consistently follow these written policies.
See id. ¶ 9.
As Gross points out, a portion of the Employee Selection policy in the record has been
omitted due to what appears to be a scanning or copying error. See Tucker Aff. Ex. 3 at 1‒3;
RSOF ¶ 12. Since the omitted portion sets out in part the employees to whom the policy applies,
the court does not rely on the Employee Selection policy, as it cannot be determined whether this
policy applied to Gross. See Tucker Aff. Ex. 3 at 1‒2. Additionally, the Employee Selection
policy incorporates a separate EEO policy that is not in this record. See Tucker Aff. Ex. 3 at 3.
Gross has not raised any concerns about the absence of the EEO policy from the record, but he
disputes that the “EEO policies were followed.” See RSOF ¶ 13.
Defendants highlight several provisions of these policies. The safety policy states
broadly that “employee safety is a prime consideration . . . and shall not be compromised.”
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Although this issue is not raised by Gross, pages 2 and 4 of the Time Away From Work policy have
been omitted from the record, see Tucker Aff. Ex. 5, and the court cannot independently confirm that
the policy provides for employees to be paid during a medical leave.
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RSOF ¶ 11. The FMLA policy permits statutorily eligible employees to take up to 12 weeks of
job-protected leave. RSOF ¶ 14. The ADA policy sets out a procedure for requesting a
reasonable job accommodation: completing, signing, and submitting a job accommodation
request form. See RSOF ¶ 20; Tucker Aff. Ex. 7 at 1.
With company approval, employees may also take short- and long-term medical leave;
employees continue to receive a portion of their salary while on medical leave. RSOF ¶ 15
(undisputed but not supported in its entirety by cited materials, see Tucker Aff. ¶ 16; id. Ex. 5).
WBS reserves the right to request a medical certification regarding these absences. RSOF ¶ 17.
And employees on approved medical leave must keep their managers updated on their status and
projected return to work date. RSOF ¶ 16.
When returning from medical leave, the employee must submit an RTW form completed
by a doctor. RSOF ¶ 18; Blank RTW Form, Tucker Aff. Ex. 6. Gross submitted several RTW
forms. See, e.g., RSAF ¶¶ 30, 34, 36, 38. A copy of the blank RTW form follows:
10
Tucker Aff. Ex. 6; see also RSOF ¶¶ 18‒19.
C. Gross’s Position, Duties, and Performance Reviews
Gross was hired as a corporate safety consultant in 2012, and he continued in that role
until his termination in 2017. See RSOF ¶¶ 21–22; RSAF ¶¶ 2, 39. Gross reported to Charles
Wagner (“Wagner”) throughout his employment. See RSOF ¶¶ 23, 25 (immaterial, but genuine,
dispute in paragraph 25 concerning Wagner’s purported change in title); RSAF ¶ 26. WBS
assigned Gross to work at a Peoples Gas location in Chicago known as “Central Shop.” RSOF
¶ 29.
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According to WBS’s written job description, a safety consultant “administers safety
initiatives across WBS, through the delivery of standardized, results driven safety and industrial
hygiene programs and processes that safeguard the well-being of employees in the work
environment and ensure regulatory compliance.” RSOF ¶ 26 (citing Defs.’ Tab 4 Ex. 3 at 1, ECF
No. 142-1 (job description)). Per the description, physical requirements of the job include
sitting, reaching, lifting, standing, walking, pushing, and climbing stairs. Id. Also listed is a
requirement that the safety consultant operate a truck or crane 34–66% of the time on the job. Id.
Gross’s day-to-day duties are genuinely disputed. See RSOF ¶ 29. Resolving these
disputes for Gross, his position involved more hands-on work in the field than planning or
strategic work. RSOF ¶ 27 (citing Gross Dep. 25‒26, Defs.’ Tab 4, ECF No. 142-1). When
conducting training in the field, Gross regularly climbed ladders and engaged in digging. Id.
(citing Gross Dep. 84).
From 2012–15, Gross received ratings of “fully successful” on annual and mid-year
performance reviews completed by Wagner. RSOF ¶ 43; RSAF ¶ 3. In August 2015, Gross
complained to William Lasko (“Lasko”), WBS’s Vice President and Chief HR officer at the time,
about a lack of advancement opportunities for minority employees; Lasko told Gross that he
would look into the matter.6 See RSOF ¶ 41. The next month (September 2015), Gross filed a
charge of discrimination and retaliation with the Equal Employment Opportunity Commission
(EEOC) (a copy of the charge is not cited in the LR 56.1 fact statements or responses). See
RSAF ¶ 22; RSOF ¶ 42 (undisputed but not supported by citation to proper summary judgment
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The summary judgment evidence shows that Gross made this complaint on or around August 10,
2015. See RSOF ¶ 41. In his response memorandum, Gross lists the complaint date as in or around
September 2015. Resp. 22. The date supported by the summary judgment evidence has been used.
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evidence). Gross received an “achieves expectation” rating on his next performance review at
the end of 2015. RSAF ¶ 22 (undisputed fact).
D. Disparate Treatment/Hostile Work Environment
Gross compares Wagner’s treatment of him to two Caucasian employees who also
reported to Wagner: Danielle Clopton (“Clopton”) and William Dorst (“Dorst”).7 RSAF ¶ 5.
According to Gross’s testimony, Wagner asked him to make coffee, set up training rooms, and
perform other menial and undesirable tasks. RSAF ¶ 9 (partially disputed). Wagner did not ask
Clopton or Dorst to perform similar tasks. See id. Gross points to three specific incidents of
alleged disparate treatment.
First, on one occasion in 2015, Wagner assigned Gross to lead a training class. See RSAF
¶ 6; Gross Dep. 122. Gross responded that Clopton was fully capable of conducting the class,
and, according to Gross’s testimony, Wagner asked him whether he was being insubordinate and
directed him to conduct the class. See Gross Dep. 122 (“[Wagner] said you’re doing it, and I did
it.”).
Second, on or around August 7, 2015, Clopton missed a “Confined Space Training”
meeting Gross scheduled. See RSAF ¶ 7; Pl.’s Tab D Ex. 1 at 1, ECF No. 143-5 (emails dated
July 20, 2015, and Aug. 10, 2015). Gross had to do extra work as a result. See RSAF ¶ 7; Pl.’s
Tab D Ex. 1 at 1. According to an email message from Clopton, she missed the meeting because
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7 The interrogatory answer Gross cites in paragraph 5 of his statement of additional facts identifies
Clopton and Dorst as comparators but does not state their race, age, or disability status. See Pl.’s
Tab. C Ex. 1 ¶ 8, ECF No. 143-4. In the interrogatory he cites, Gross asked for the “name, age, race,
disabled or non-disabled [status], and position title” of every employee who reported to Wagner
between January 2012 and January 2018. See id. Defendants objected to this question in part and
identified Clopton and Dorst as reporting to Wagner, but defendants did not disclose their races, ages,
or disability status, arguing that the question was “vague.” See id. As far as the record shows, Gross
did not follow up or file a motion to compel defendants to answer fully this interrogatory.
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she had “personal items come up” that made her unable to drive her car. Id. at 1 (email dated
Aug. 10, 2015).
Finally, following a meeting in October 2015, Wagner assigned Gross to prepare lesson
plans and materials needed to lead a one-hour discussion based on ideas that were discussed at a
recent meeting. See RSAF ¶ 8; Pl.’s Tab D Ex. 2 at 1‒2. Gross responded that he believed the
assignment could not be completed in the allotted timeline and that it needed to be a group
project. Pl.’s Tab D Ex. 2 at 1. Wagner disagreed and instructed Gross to work on the
assignment. See id.
E. Internal Job Applications - Failure to Promote
Gross applied for six internal vacancies during his employment, all of which paid more
than his safety consultant job and were in a different department. See RSOF ¶¶ 44–45, 51–52;
RSAF ¶¶ 14, 17 (exact dates of applications unclear from the record); RSOF ¶ 44. Gross applied
for the following positions between April 2013 and April 2015: Business Developer, Director of
Corporate Security,8 HR Business/Labor Consultant, Employee Relations Consultant, and
Manager of Workforce Planning. RSOF ¶ 44. In January 2017, Gross applied for the sixth
position: Manager of Safety. Id. ¶ 51.
Gross received interviews for three of the positions but was not offered any of the jobs
for which he applied. RSOF ¶ 46, 51–52; RSAF ¶ 18. A non-African American person was
selected to fill three of these vacancies and an African American woman was hired for the
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In his statement of additional facts, Gross lists “Director of Corporate Safety” instead of “Director of
Corporate Security” as one of the jobs for which he applied. See RSAF ¶ 14; Pl.’s Tab C Ex. 3 ¶ 5.
Defendants identify this position as “Director-Corporate Security,” see RSOF ¶ 44, and Gross
included the job description for “Director-Corporate Security” as an exhibit to his statement of
additional facts, see Pl.’s Tab C Ex. 4 at WBS885‒86 (exhibit described as containing the “Job
Profiles of Six Positions [for which] Gross Applied”).
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“Manager of Safety” position. See RSAF ¶ 19. No evidence of who was selected for the other
two positions has been provided. See id. Defendants contend that Gross was not selected
because he was not the most qualified candidate, but the affidavit they cite says only that Gross
was not selected without giving a reason. See Aff. of Geeta S. Nagarajan (“Nagarajan Aff.”)
¶ 12, Defs.’ Tab 5, ECF No. 142-1.
In support of his failure to promote claims, Gross also points to a 2015 internal WEC
PowerPoint presentation entitled “Human Resources & Organizational Effectiveness – Update
Meeting Mid October 2015.” RSAF ¶ 20; Pl.’s Tab E at 1, ECF No. 143-6. The presentation
summarizes the results of employee interviews. See Pl.’s Tab E at 6‒21. The presentation states
that the employee interview process had “perceived gaps” and that several ethics complaints had
been filed. Id. at 12; RSAF ¶ 20.
F. Disability Discrimination and Gross’s Termination
Defendants approved Gross for a disability-related, long-term medical leave not directly
related to his claims here beginning in December 2013. See RSOF ¶ 30. Gross testified that he
underwent several surgeries during this period, including heart surgery. See Gross Dep. 45–51
(portion of deposition not cited by the parties).
Gross returned to work on December 29, 2014. RSOF ¶ 31. Earlier that month, on or
around December 15, 2014, Gross was diagnosed with pseudogout and osteoarthritis in his right
ankle. RSAF ¶ 23. It is undisputed that these conditions, which are incurable, “limit Gross’s
walking and standing because [they cause] pain, swelling, and inflammation [of] the joints.”
RSAF ¶ 25. A reasonable jury could also find that, due to pain, these conditions limited Gross’s
ability to climb stairs, climb ladders, wear heavy boots or safety shoes, and stand or walk for
extended periods of time. See RSOF ¶¶ 35, 38, 50 (walking restrictions); Letter from
15
Dr. Anjali R. Gopal at 1, Oct. 14, 2015, Pl.’s Tab. F, ECF No. 143-7, cited in RSAF ¶ 25 (other
limitations).
Gross reported his diagnoses to Wagner and an HR representative by submitting a note
from his doctor on or around December 16, 2014. See RSAF ¶ 28. Between January and
December 2015, Gross submitted several RTW forms to his employer as his doctors followed up
and reevaluated him. See RSAF ¶ 30; RSOF ¶¶ 33, 35, 37, 38 (reflecting immaterial disputes
over the precise dates on which the RTW forms were submitted). The restrictions on Gross’s
activities reflected on the RTW forms changed over time. See ibid. All RTW forms except the
first stated that Gross should not do any squatting or climbing and restricted his standing/walking
time to four or fewer hours. See RSOF ¶¶ 34–35, 37–38; Tucker Aff. Ex. 10–13 (copies of RTW
forms).
It is undisputed that, as an accommodation, defendants allowed Gross to wear specially
fitting safety shoes, though it is unclear if or how the shoes helped Gross. See RSOF ¶ 39;
Tucker Aff. ¶ 31. Defendants also moved Gross’s office to the first floor so that he would not
have to climb stairs to reach his office. See RSOF ¶ 39. And Wagner and another HR employee
“told [Gross] that he no longer had to walk up any stair sets.” RSOF ¶ 39 (undisputed fact).
At his deposition, Gross testified that “no one explicitly asked” him to climb ladders or
stairs or do anything else not permitted by his restrictions. Gross Dep. 84; RSOF ¶ 40. He
nevertheless continued to be assigned to conduct field training outdoors, which required him to
use ladders and work in the cold for an extended period of time. RSAF ¶ 32 (undisputed). Gross
injured his ankle while conducting field training at Crawford Station on November 19, 2015.
RSAF ¶ 33. The incident report dated November 20, 2015, states that Gross conducted training,
including field training outdoors, on November 19, 2015, and complained that a “preexisting
16
ankle condition was causing swelling in his right ankle,” requiring him to rest and be off his feet.
Pl.’s Tab K at 2‒3, ECF No. 143-12. According to the report, seen favorably to Gross, prolonged
exposure to wind and cold temperatures and uneven, slippery surfaces caused this injury. See id.
at 3.
Gross submitted RTW forms in December 2015 and January 2016 in which his doctor
stated that he was totally incapacitated. See RSAF ¶ 34; RSOF ¶ 48. Wagner approved Gross
for a medical leave and leave of absence lasting until August 1, 2016. See RSOF ¶¶ 47, 49.
Gross continued to receive treatment for his ankle during this leave of absence. See, e.g., RSAF
¶ 35. Gross submitted additional RTW forms with certain restrictions between June and
December 2016. See RSAF ¶ 36; RSOF ¶¶ 49–50.
Defendants approved Gross for a further leave of absence beginning in February 2017.
RSOF ¶ 53. At some point around this time, Gross submitted a claim to WBS’s long-term
disability insurance provider. See RSAF ¶¶ 39–40; Termination Letter at 1, Oct. 27, 2017, Pl.’s
Tab H, ECF No. 143-9.
Defendants terminated Gross in October 2017. RSAF ¶ 40. His termination letter states:
Based upon our conversation on October 20, 2017, you stated that you are not
cleared to return to work and you do not have any indication of when you can
return to work. Your position regarding your ability to work is inconsistent with
the review conducted by Prudential, our third party administrator, which indicated
that you are not disabled from performing your job. Prudential has denied your
claims and appeals finding that you are not disabled from performing your current
position.
Our records show that you were not eligible for FMLA because you have not
worked the requisite 1250 hours in the previous 12 months.
Further, as an ADA accommodation, the Company previously approved a multimonth leave which first began in February, 2017 which has expanded more than
36 weeks. Additionally, you have submitted your physician's most recent
evaluation, dated October 18, 2017 that provides that you are "totally
incapacitated at this time".
17
Based upon the information provided by your physician indicating you are
not able to work, the Company has decided that your employment will be
terminated effective October 27, 2017.
Termination Letter at 1 (emphasis in original).
Gross subsequently appealed the denial of his long-term disability insurance claim. See
RSAF ¶ 40. On May 31, 2018, the insurer approved Gross for long-term disability benefits
retroactive to August 13, 2017. Id. Defendants did not rehire Gross. Id.
III. Joint Employment
Gross seeks to hold WBS and Peoples Gas liable as joint employers. See Third Am.
Compl. ¶¶ 4, 31–35, 53; Resp. 6–7. The parties agree that at all relevant times WBS, or its
predecessor, directly employed Gross and that WBS provided services to Peoples Gas, and other
WEC affiliates, under an affiliate agreement. See RSOF ¶¶ 4–7 (deemed undisputed because no
evidence cited in response); Defs.’ Mem. Supp. Mot. Summ. J. (“Mem. Supp. Mot. Summ.
J.”) 10, ECF No. 137. Peoples Gas argues that Gross has not identified enough competent
summary judgment evidence to hold it liable under a joint employment theory. Mem. Supp.
Mot. Summ. J. 10–12. The court agrees.
A. Joint Employment Standard
An employee can have more than one employer under Title VII and the other civil rights
statutes under which Gross sues. See McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783,
790 (7th Cir. 2019) (42 U.S.C. § 1981); Frey v. Coleman, 903 F.3d 671, 676 (7th Cir. 2018)
(citing Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 701 (7th Cir. 2015)) (Title VII); Harris v.
Allen Cnty. Bd. of Comm’rs, 890 F.3d 680, 683–84 (7th Cir. 2018) (ADA); Hayden v. La-Z-Boy
Chair Co., 9 F.3d 617, 622 (7th Cir. 1993) (age discrimination under the ADEA). To assess joint
employment, courts in the Seventh Circuit “must employ an ‘economic realities’ test which is, in
its essence, an application of general principles of agency law to the facts of the case.” Frey,
18
903 F.3d at 676 (quoting Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378
(7th Cir. 1991) (other citation omitted)). Courts applying the economic realities test must
consider the following, non-exhaustive factors:
(1) the extent of the employer’s control and supervision over the worker,
including directions on scheduling and performance of work, (2) the kind of
occupation and nature of skill required, including whether skills are obtained in
the workplace, (3) responsibility for the costs of operation, such as equipment,
supplies, fees, licenses, workplace, and maintenance of operations, (4) method
and form of payment and benefits, and (5) length of job commitment and/or
expectations.
Frey, 903 F.3d at 676 (quoting Knight, 950 F.2d at 378–79); see also McCurry, 942 F.3d at 790;
Harris, 890 F.3d at 683–85; Hayden, 9 F.3d at 622.
“[T]he Knight test is merely a more structured analysis of whether the putative employer
exercised sufficient control, and whether the ‘economic realities’ are such that the putative
employer can be held liable under Title VII” and in other contexts where it is used. Love,
779 F.3d at 702. The first factor “is the most important,” and a court must give it the most
weight. Id. (citing Knight, 952 F.2d at 378‒79); see also Harris, 890 F.3d at 684.
B. Analysis
As the plaintiff, Gross bears the burden of establishing an employer-employee
relationship between him and Peoples Gas. See Logan v. City of Chicago, 4 F.4th 529, 537
(7th Cir. 2021) (citation omitted); Love, 779 F.3d at 701 (citing Knight, 950 F.2d at 380);
Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 492 (7th Cir. 1996). Gross lists the five
Knight factors and the elements of the economic realities test in his response memorandum, but
he discusses only the first factor, which is again the most important. See Resp. at 6.
To carry his burden of proof, Gross makes the following factual assertions in his response
memorandum concerning the amount of control Peoples Gas exercised over him: (1) although
Wagner, a WBS employee, “drafted and signed off on” Gross’s annual performance reviews, the
19
reviews contained feedback from Peoples Gas employees who managed him; (2) at his
deposition, Gross identified several Peoples Gas employees who supervised him; (3) Peoples
Gas managers gave him more daily assignments than did Wagner; (4) Gross met with Wagner
only once a month; (5) Wagner worked in a different building than Gross; and (6) Gross worked
alongside more Peoples Gas employees than WBS employees. See id. at 6–7. All of these facts
are supported exclusively by direct citations to Gross’s deposition transcript, which citations the
court must disregard: no case law is cited, and Gross does not cite to the LR 56.1 fact statements
or responses. See id. As the leading case on LR 56.1 practice in this district states, “providing
additional facts in one's responsive memorandum is insufficient to put those facts before the
Court.” Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (citing Midwest Imports, Ltd. v.
Coval, 71 F.3d 1311, 1317 (7th Cir. 1995)). Nor do factual assertions comparable to those made
in Gross’s response memorandum (pp. 6–7) appear in the parties’ LR 56.1 fact statements. See
ECF Nos. 143, 149.
In addition, Gross does not identify any specific statements in his performance reviews
based on input from Peoples Gas employees, nor are specific statements clear on the face of the
reviews in the record. See Tucker Aff. Ex. 14, cited in RSOF ¶ 43; Pl.’s Tab B, ECF No. 143-3,
cited in RSAF ¶¶ 3, 22. Wagner’s notes on the performance reviews reference Gross’s
integration with “the team” and managers at his workplace, but nothing has been cited indicating
whether the personnel involved were Peoples Gas or WBS employees. See, e.g., Tucker Aff.
Ex. 14 at WBS22, WBS29, WBS42. If support exists in the record for finding that material
statements were made by Peoples Gas employees, this court is not required to “scour the record”
to locate that support. Hildreth v. Butler, 960 F.3d 420, 429‒30 (7th Cir. 2020), cert. denied,
20
209 L. Ed. 2d 260 (Mar. 8, 2021) (quoting Harney v. Speedway SuperAmerica, LLC, 526 F.3d
1099, 1104 (7th Cir. 2008)).
Accordingly, Gross has identified no competent summary judgment evidence establishing
the factual foundation he purports to lay for holding Peoples Gas liable as his joint employer.
Since Gross bears the burden to demonstrate the existence of an employment relationship with
Peoples Gas, summary judgment is appropriate.
IV. Discrimination and Retaliation Claims
The Seventh Circuit has instructed district courts to “stop separating ‘direct’ from
‘indirect’ evidence and proceeding as if they were subject to different legal standards” in
employment discrimination cases. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir.
2016). Instead, “all evidence” of intentional discrimination “belongs in a single pile and must be
evaluated as a whole.” Id. at 766. The three-step burden-shifting framework of McDonnell
Douglas v. Green, 411 U.S. 792 (1973), remains available to litigants seeking to prove
intentional discrimination claims at summary judgment. See Igasaki v. Ill. Dep’t of Fin. & Pro.
Regul., 988 F.3d 948, 957 (7th Cir. 2021); Ortiz, 834 F.3d at 766; see also Brooks v. Avancez,
39 F.4th 424, 435 (7th Cir. 2022) (collecting cases applying these principles to ADA and ADEA
claims). Gross has elected to use the McDonnell Douglas framework for some of his claims, see
Resp. 7–8, 12–13, so the court will analyze his evidence as he requests, keeping in mind that the
evidence must be viewed holistically. See Boss v. Castro, 816 F.3d 910, 918 (7th Cir. 2016)
(citing Hall v. City of Chicago, 713 F.3d 325, 334 (7th Cir. 2013) (other citation omitted)).
The McDonnell Douglas framework “is merely one way of culling the relevant evidence
needed to demonstrate whether a reasonable factfinder could conclude that an employer engaged
in an adverse employment action based on the plaintiff's race or other proscribed factor.”
Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018).
21
The familiar McDonnell Douglas approach requires a plaintiff to make a prima
facie case of discrimination, at which point the burden shifts to the employer to
offer a nondiscriminatory motive, and, if the employer does so, the burden shifts
back to the plaintiff to show that the employer’s stated reason was a pretext.
Igasaki, 988 F.3d at 957 (quoting Purtue v. Wis. Dep't of Corr., 963 F.3d 598, 601 (7th Cir.
2020)). The elements of the plaintiff’s prima facie case under the McDonnell Douglas
framework “vary depending on the factual context of the plaintiff’s claim.” Kidd v. Ill. State
Police, 167 F.3d 1084, 1093 n.13 (7th Cir. 1999) (citing McDonnell Douglas, 411 U.S. at 802
n.13, and Leffel v. Valley Fin. Servs., 113 F.3d 787, 793–95 (7th Cir. 1997)).
The parties sort the facts and claims into four categories: (i) disparate treatment claims
based on Gross’s race and age; (ii) Gross’s ADA claims of disability discrimination and alleged
failures to provide him with reasonable accommodations during his employment; (iii) race, age,
and disability discrimination claims premised on Gross’s non-selection for several internal jobs
(“failure to promote” claims); and (iv) claims of retaliation. Mem. Supp. Mot. Summ. J. 12, 16,
19, 20; Resp. 8, 12, 16, 22. Because Gross asks the court to apply a set of prima facie elements
specific to his hostile work environment claims, they will be analyzed separately. See Resp. 8.
A. Disparate Treatment: Gross’s Termination
With the exception of the ADA claims discussed below, Gross and defendants apply the
McDonnell Douglas framework to his claims based on his termination. Stated broadly, a prima
facie case of discrimination has four elements: (1) the plaintiff falls into one or more statutorily
protected categories; (2) he was meeting his employer’s legitimate employment expectations;
(3) he suffered one or more legally cognizable adverse employment actions; and (4) one or more
similarly situated individuals outside his protected class received better treatment. See Brooks,
39 F.4th at 434 (citations omitted) (ADA and ADEA); Marshall v. Ind. Dep’t of Corr., 973 F.3d
789, 791‒92 (7th Cir. 2020) (Title VII). The first two elements are not contested: “For purposes
22
of summary judgment, WBS does not dispute that Gross is a member of protected classes (black
and over forty years of age) or that he met WBS’ performance expectations.” Mem. Supp. Mot.
Summ. J. 13; accord RSAF ¶ 10.
For purposes of an intentional discrimination claim, a materially adverse employment
action means one that “visits upon a plaintiff ‘a significant change in employment status.’ ”
Boss, 816 F.3d at 917 (quoting Andrews v. CBOCS W., Inc., 743 F.3d 230, 235 (7th Cir. 2014)).
“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.” Id. (citing Lewis v. City of Chicago, 496 F.3d 645, 653
(7th Cir. 2007)). Gross’s termination in 2017, RSAF ¶ 40, constitutes a paradigmatic adverse
employment action. See, e g., Marshall, 973 F.3d at 793. Except as they pertain to his hostile
work environment claims, Gross does not argue that several other actions reflected in the
summary judgment evidence properly before the court rise to the level of a materially adverse
employment action. For example, Gross received an “achieves expectation” rating on his 2015
year-end performance review; he had received “fully successful” ratings in each of the past three
years. RSOF ¶ 43; RSAF ¶¶ 3, 22; Pl.’s Tab B at 1. Gross identifies no consequences (economic
or otherwise), such as a change in salary or advancement opportunities, flowing from his 2015
performance review rating. See RSAF ¶ 22; Resp. 8–11. Thus, Gross has not shown that his
2015 performance review rating constituted an adverse employment action for purposes of his
intentional discrimination claims. See McCurry, 942 F.3d at 789 (citing Lloyd v. Swifty Transp.,
Inc., 552 F.3d 594, 602 (7th Cir. 2009)); see also Part III.E, infra (applying the test for adverse
employment actions applicable to retaliation claims); Krause v. City of LaCrosse, 246 F.3d 995,
999 (7th Cir. 2001).
23
Gross’s prima facie case based on his termination fails on the fourth element: Gross does
not identify a similarly situated comparator whom WBS did not terminate. Gross provides
evidence of Wagner’s alleged better treatment of Clopton in 2015, such as Wagner’s assigning
Gross to do work Gross believed Clopton could do. See RSAF ¶¶ 5–9. Gross also identifies
Dorst as a comparator but cites no specific incidents of Wagner’s treatment of Dorst. See id. But
Gross cites nothing showing whether Clopton or Dorst were, or were not, terminated, which is
minimally necessary to make them proper comparators for a discriminatory discharge claim. See
id.; see also, e.g., Marshall, 973 F.3d at 792; Igasaki, 988 F.3d at 958–59. “Although they need
not be identically positioned, ‘similarly situated employees must be directly comparable to the
plaintiff in all material respects.’ ” Igasaki, 988 F.3d at 958 (quoting Patterson v. Ind.
Newspapers, Inc., 589 F.3d 357, 365–66 (7th Cir. 2009)). Gross cites no evidence showing that
Clopton or Dorst had a materially comparable history so as to make either an appropriate
comparator considering the specific reasons WBS gave for terminating him. Compare RSAF
¶ 40 and Termination Letter at 1; with RSAF ¶¶ 5–9. Thus, Gross has not carried his burden to
show that a similarly situated employee outside the protected categories to which he belongs
received more favorable treatment, so his disparate treatment claims based on his termination are
dismissed.
B. Hostile Work Environment
The Supreme Court has held that “discrimination in the workplace can emanate not only
from the terms and conditions of employment, but also when ‘the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working environment.’ ” Brooks,
39 F.4th at 441 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)).
The Seventh Circuit has applied the hostile work environment theory to ADA claims, id.
24
(citing Ford v. Marion Cnty. Sheriff's Off., 942 F.3d 839, 852 (7th Cir. 2019)), and has assumed,
without deciding, that a hostile work environment claim can be maintained under the ADEA, id.
(citations omitted). A plaintiff proceeding under the McDonnell Douglas framework must make
a prima facie hostile work environment case by showing:
(1) she was subject to unwelcome harassment; (2) the harassment was based on
disability or age or another protected category; (3) the harassment was sufficiently
severe or pervasive, both subjectively and objectively, so as to alter the conditions
of her employment and create a hostile or abusive atmosphere; and (4) there is a
basis for employer liability.
Id. (citing Mahran v. Advoc. Christ Med. Ctr., 12 F.4th 708, 714–15 (7th Cir. 2021) (other
citations omitted)). Defendants did not use this formulation of the prima facie test in their
opening summary judgment memorandum; Gross introduced it in his response. See Mem. Supp.
Mot. Summ. J. 12‒16; Resp. 7‒8. Defendants’ opening memorandum puts only the second and
third elements at issue. See Mem. Supp. Mot. Summ. J. 14 (“Gross cannot present any evidence
that he was subject to any unwelcome harassment that was based on his race, age, or a
disability.”).
Gross relies almost entirely on direct citations to his third amended complaint and
deposition transcript to establish the factual basis for his hostile work environment claim. See
Resp. 8–12. Since the complaint’s allegations are not competent summary judgment evidence
and Gross bypassed the LR 56.1 adversary process for presenting facts by citing directly to his
deposition transcript, the court does not consider the citations to Gross’s third amended
complaint and deposition transcript in his response memorandum. See Part I.B, supra. The
court acknowledges that Gross’s LR 56.1(b)(3) statement of additional facts describes additional
incidents of the type many plaintiffs would ordinarily use to support a hostile work environment
claim. Examples include a comment Wagner allegedly made that older people have difficulty
with computers, Gross’s being assigned to make coffee, and Wagner assigning Gross to conduct
25
a training course that Gross believed Clopton was capable of conducting. See SAF ¶¶ 6–9, 21.
However, Gross does not reference these incidents as support for his hostile work environment
claim in his response memorandum and instead points the court, improperly, to his deposition
testimony concerning still other alleged incidents of harassment mentioned nowhere in the
LR 56.1 fact statements. See Resp. 8–10, 12. The court declines to delve into incidents Gross
has not properly put before it at summary judgment or to attempt to analyze a hostile work
environment theory Gross has not articulated because “[i]t is not the responsibility of this court
to make arguments for the parties.” United States v. Phillips, 596 F.3d 414, 418 (7th Cir. 2010)
(quoting Vaughn v. King, 167 F.3d 347, 354 (7th Cir. 1999)).
Disregarding improper citations, one incident supporting Gross’s hostile work
environment claim is properly before the court at summary judgment: “The unwelcome
harassment included Gross required [sic] to complete the work of his peers, whereas his peers
did not have to complete Gross’s work.” Resp. 9 (citing SAF ¶ 6). Paragraph 6 of Gross’s
statement of additional facts relies on the following portion of Gross’s deposition testimony:
Q.
When?
A.
Several instances.
There was one instance in 2015 when I was asked to do a training program for
someone who refused to do it after Dani Clopton and Chuck [Wagner] instructed
me to do the training class and I told him that it wasn’t fair and that she should do
it.
Q.
Okay. And then what happened?
A.
And he asked me are you being insubordinate and I said I am not, and I
pointed out to him that she had been with us for eight or nine months and fully
capable of doing a training class.
Q.
And what happened next?
A.
He said you’re doing it, and I did it.
Gross Dep. 122:2‒15.
26
With inferences favorable to Gross, nothing in this testimony suggests that Wagner’s
actions were based on Gross’s race, age, or disability status. See, e.g., Brooks, 39 F.4th at 441
(holding that coworkers’ “abusive conduct—swearing, refusing to follow her directions, using
disrespectful language—were not focused on [the plaintiff’s] age or disability and thus could not
create a hostile work environment”). As the Supreme Court has emphasized in the Title VII
context, the statutes under which Gross sues prohibit mistreatment based on protected
characteristics, so that Gross “must show the link between this treatment” and his age, race, or
disability. Jackson v. Cnty. of Racine, 474 F. 3d 493, 499 (7th Cir. 2007) (citing Oncale,
523 U.S. at 80). To the extent Gross cites his deposition testimony (which again is not properly
before the court, see Resp. 8–10, 12) to show that he believed Wagner was motivated by
improper animas, a plaintiff’s “speculation as to an employer’s state of mind is not sufficient to
create an issue of material fact.” Johnson, supra, 892 F.3d at 899 (citing Payne v. Pauley,
337 F.3d 767, 772 (7th Cir. 2003)). Hence, Gross has not identified evidence from which a
reasonable jury could find that, to the extent this incident was harassing, Wagner harassed Gross
based on Gross’s age, race, or disability. See id.
Gross also has not carried his burden on the third element of his prima facie case, by
showing that harassment he experienced was objectively severe or pervasive enough to alter the
terms and conditions of his employment. “One instance of conduct that is sufficiently severe
may be enough” to survive summary judgment on a hostile work environment claim. Jackson,
474 F.3d at 499 (citing Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999)). Smith is often cited
as an example. There, the summary judgment record showed that the female plaintiff’s male coworker pinned her against a wall, called her a bitch, threatened to “fuck her up,” and hurt her
wrist severely enough to require surgery. 189 F.3d at 531, 534. The Seventh Circuit held that
27
this single incident was severe enough on its own to permit the plaintiff to go to trial on a hostile
work environment claim. See id. at 534–35; see also Rosa v. Bd. of Trs. of the Univ. of Ill., 2020
WL 7319574, at *8 (N.D. Ill. Dec. 11, 2020) (collecting and discussing several district court
opinions holding that a single incident was severe enough to survive summary judgment).
Judge Bucklo’s opinion in Walls v. Turano Baking Co., 221 F. Supp. 2d 924 (N.D.
Ill. 2002), provides a contrasting example. In Walls, the plaintiff, an African American man hired
as a salesman, alleged that his immediate supervisor, Hurt, harassed him and used a highly
offensive racial slur in his presence and the presence of coworkers. See id. at 928, 929. The
court held, at the complaint stage, that “considering Hurt’s non-racial abusive language in
conjunction with his use of the racial slur, Walls’ claim falls short of those cases in which
isolated instances of harassment created a hostile environment.” Id. at 930 (citations omitted);
see also id. at 930–31 (holding that allegations concerning coworkers’ conduct were insufficient,
considered cumulatively, to support hostile work environment theory); Diab v. Chi. Bd. of Educ.,
850 F. Supp. 2d 899, 916 (N.D. Ill. 2012) (dismissing hostile work environment claim at
summary judgment); Scholl v. Educ. Mgmt. Corp., 2012 WL 3915662, at *9 (N.D. Ind. Sept. 7,
2012) (same).
Taken in the light most favorable to Gross, the single incident of alleged harassment
properly before this court is more like the facts of Walls than those of Smith. See RSAF ¶ 6.
Wagner did not physically menace Gross or make physical contact with him. See id. Nor did
Wagner use overtly racist, ageist, or ableist slurs or physically threaten Gross. Id. Accordingly,
Gross’s hostile work environment claim fails for lack of competent summary judgment evidence
that he was subjected to objectively severe or pervasive harassment.
28
C. Disability Discrimination and Failure to Accommodate
The ADA prohibits covered employers (referred to as “covered entities”) from
discriminating “against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). Discrimination includes “not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such covered entity.”
§ 12112(b)(5)(A). Accordingly, the ADA creates “two distinct categories of disability
discrimination claims: failure to accommodate and disparate treatment.” Basith v. Cook Cnty.,
241 F.3d 919, 927 (7th Cir. 2001) (citing Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1021–
22 (7th Cir. 1997)). Gross raises both types of claims.
To prove a violation of § 12112(a), Gross must establish: (1) he was a qualified person
with a disability; (2) he was otherwise qualified to perform the essential functions of his job with
or without reasonable accommodation; (3) he suffered an adverse employment action, including
the denial of a reasonable accommodation; and (4) the adverse action was caused by his
disability. See Brooks, supra, 39 F.4th at 433 (citing Kurtzhals v. Cnty. of Dunn, 969 F.3d 725,
728 (7th Cir. 2020)); Basith, 241 F.3d at 927.
Defendants maintain that Gross has not shown that he had a disability in 2015 or when he
was terminated in 2017. See Mem. Supp. Mot. Summ. J. 16‒17. They further argue that the
record shows that they provided Gross with reasonable accommodations throughout most of
2015, when he was not on medical leave and returned to work with restrictions. Id. at 18–19.
29
These two issues bleed together somewhat because Gross responds that defendants’ failure to
accommodate him in 2015 made his ankle condition worse.9 See Resp. 15–16.
The parties’ arguments can be resolved under the ADA’s definition of a qualified
individual with a disability:
an individual with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such
individual holds or desires.
42 U.S.C. § 12111(8).
“Applying this definition typically entails a two-step inquiry.” Conners v. Wilkie,
984 F.3d 1255, 1261 (7th Cir. 2021). At the first step, the court “asks whether the plaintiff has
the basic qualifications required for the position, such as educational prerequisites, employment
experience, skills, or licenses.” Id. (quoting Rodrigo v. Carle Found. Hosp., 879 F.3d 236, 241–
42 (7th Cir. 2018)). Gross’s basic qualifications–education, experience, etc.–for the safety
consultant job are not in dispute, particularly given that he performed his job and received strong
performance ratings for three years. See RSOF ¶ 43; RSAF ¶¶ 1, 3. At the second step, the court
inquires “whether the plaintiff can perform the essential functions of the job with or without
reasonable accommodations,” considering “the employer’s judgment, the employee’s written job
————————————————————
9 Gross points to three additional putative adverse employment actions. See Resp. 16–17. First, he
argues that his failure to promote claims are based on the ADA, id., but he provides no evidence of
the disability status of any of the persons selected for the positions for which he applied. See RSAF
¶ 19. Only the race of the listed selectees has been provided. See id. Second, Gross contends that the
hostile work environment he experienced was due to his disability. Resp. 16–17. Part IV.B, supra,
explains why summary judgment is proper on Gross’s hostile work environment claims. Finally,
Gross asserts that he suffered a materially adverse employment action when Wagner mentioned his
hospitalization at a meeting. Resp. 15 (citing SAF ¶ 28). Gross cites no legal authority supporting
his contention that this comment rose to the level of a materially adverse action and does not develop
this one-sentence argument further. See id. Gross has therefore waived this argument under the wellsettled rule that “perfunctory and underdeveloped arguments, and arguments that are unsupported by
pertinent authority are waived.” Greenbank v. Great Am. Assurance Co., ––– F.4th –––, 2022
WL 3754722, at *7 (7th Cir. Aug. 30, 2022) (citing Gross v. Town of Cicero, 619 F.3d 697, 705
(7th Cir. 2010)).
30
description, the amount of time the employee spends performing that function, the consequences
of not requiring the employee to perform the function, and the experiences of past and current
workers.” Conners, 984 F.3d at 1261 (quoting Rodrigo, 879 F.3d at 242).
The parties have provided very little evidence on most of these factors; they rely on the
written job description for Gross’s job and a smattering of testimony. According to the job
description, requirements included sitting, reaching, standing, walking, lifting, pushing, and
climbing stairs. Defs.’ Tab 4 Ex. 3 at 2‒3; see also RSOF ¶ 26 (contents of job description
undisputed). The written job description reflects defendants’ understanding of the job’s essential
functions, and the court “presume[s] that an employer’s understanding of the essential functions
of the job is correct, unless the plaintiff offers sufficient evidence to the contrary.” Conners,
984 F.3d at 1261–62 (quoting Gratzl v. Off. of the Chief Judges of the 12th, 18th, 19th, & 22nd
Judicial Cirs., 601 F.3d 674, 679 (7th Cir. 2010)) (applying this presumption to a written job
description). Gross offers no contrary evidence. If anything, he amplifies the job’s physical
requirements. Gross testified at his deposition that his job involved more hands-on work in the
field than planning or strategic work. RSOF ¶ 29 (citing Gross Dep. 25‒26) (disputed fact
resolved in favor of Gross).
1. 2017 Termination
There is no genuine dispute that Gross could not perform the essential functions of his
job discussed in the prior paragraph when he was terminated in 2017. In February 2017, WBS
approved Gross’s request for a leave of absence. RSOF ¶ 53. WBS asked Gross for an update in
October 2017. RSOF ¶ 53. Gross submitted an updated RTW form and a letter from his
physician, which stated that he was totally incapacitated and could not walk, stand, or climb. See
RSOF ¶ 54; RSAF ¶ 38; Tucker Aff. Ex. 19 at 1–2. As the Seventh Circuit stated in McAllister v.
Innovation Ventures, LLC, “Once an employee is evaluated by a doctor, an ‘employer is entitled
31
to rely on a physician’s recommendation that the employee is not able to safely perform an
essential function of his job.’ ” 983 F.3d 963, 968 (7th Cir. 2020) (quoting Stern v. St. Anthony's
Health Ctr., 788 F.3d 276, 294 (7th Cir. 2015)). Gross cites no contrary evidence and offers no
proposed reasonable accommodation that would have allowed him to perform the essential
functions of his job. Thus, he has failed to rebut what his doctor undisputedly told his employer
just before he was terminated: Gross could not perform the essential functions of his job at the
time (RSAF ¶ 39). See McAllister, 983 F.3d at 968–69; Vargas v. DeJoy, 980 F.3d 1184, 1189–90
(7th Cir. 2020); Davidson v. State Collection Serv., Inc., 824 F. App'x 424, 427 (7th Cir. 2020).
The notation on the RTW form that Gross was scheduled to be re-evaluated on
November 8, 2017, Tucker Aff. Ex. 19 at 2, does not show that Gross was able to perform the
job’s essential functions or that he would be able to do so at any specific time in the future.
Since Gross had been on medical leave for eight months, the notation at most showed Gross’s
medical incapacity to be indefinite. See id. Gross cites no evidence that his condition has
improved. The summary judgment evidence establishes that Gross’s long-term disability appeal
was subsequently granted in May 2018. See RSAF ¶ 40. By the time Gross was terminated, he
had exhausted his Family and Medical Leave Act time. See RSAF ¶ 39; RSOF ¶ 54; Termination
Letter at 1. As the Seventh Circuit reaffirmed in a case in which the plaintiff sought a long-term
medical leave of absence as a reasonable accommodation, “an extended leave of absence does
not give a disabled individual the means to work; it excuses his not working.” Severson v.
Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir. 2017). Quoting its holding in Byrne v.
Avon Products, Inc., 328 F.3d 379, 381 (7th Cir. 2003), the Seventh Circuit ruled that “an
inability to do the job’s essential tasks means that one is not ‘qualified’; it does not mean that the
employer must excuse the inability.” Severson, 872 F.3d at 481 (alteration omitted) (also citing
32
Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999)); but see Severson, 872 F.3d at 481
(noting that Byrne left open the possibility of short medical leaves to accommodate intermittent
medical conditions (citations omitted)). In language applicable to the case at hand, the Severson
court stated, “Long-term medical leave is the domain of the FMLA.” 872 F.3d at 481 (citation
omitted). Under Severson and Byrne, Gross’s undisputed inability to work at the time of his
termination meant that he did not meet the ADA’s definition of a qualified person with a
disability, so his ADA claim based on his termination is dismissed.
2. Failure to Accommodate in 2015 and 2016
Gross submitted several RTW forms beginning in December 2014 in which his doctor
placed restrictions on his abilities to perform physical tasks. See RSAF ¶¶ 28, 30; RSOF
¶¶ 33‒35, 37, 38. Gross’s doctor advised that he should not do any squatting or climbing and
restricted his standing/walking time to four or fewer hours. See RSOF ¶¶ 34, 35, 37, 38; Tucker
Aff. Exs. 10–13 (copies of RTW forms). The accommodations defendants provided Gross are
not disputed: (1) permitting Gross to wear specially fitting safety shoes, see RSOF ¶ 39;
(2) moving Gross’s office to the first floor, so he would not have to climb stairs, id.; and
(3) telling Gross that he did not have to walk up any stairs or do anything else prohibited by the
RTW forms, see id. Gross testified at his deposition that “no one explicitly asked” him to climb
ladders or stairs or do anything else not permitted by his restrictions. See Gross Dep. 84; RSOF
¶ 40.
Gross also testified, and argues before this court, that he did not receive reasonable
accommodations until August 2016. See RSAF ¶ 29 (citing Gross Dep. 155:10–18); Resp. 15–
16. Gross does not specify what accommodations he believes he needed between December
2014 and August 2016 or why they would have made him able to perform his job’s essential
33
functions. See Resp. 15–16; Gross Dep. 155; RSAF ¶ 29. Gross’s conclusory statements that he
was not being accommodated do not carry his burden at summary judgment, for he must “present
‘non-speculative, non-conclusory evidence that a proposed accommodation or treatment would
have allowed him to adequately perform the essential functions of his job.’ ” 10 McAllister,
983 F.3d at 969 (quoting Stern, 788 F.3d at 289); see also Weigel v. Target Stores, 122 F.3d 461,
468–69 (7th Cir. 1997) (holding that affidavit’s “naked conclusion unsupported by any factual
foundation” did not create an issue for trial).
Elsewhere in his response memorandum, Gross suggests that the accommodations he
received were inadequate because defendants continued to assign him to conduct field trainings,
which “required Gross to climb sets of stairs and . . . lasted for many hours.” Resp. 14 (citing
directly to deposition testimony). Putting aside the lack of a proper citation to support this
contention, if Gross means to suggest that he should not have been assigned to conduct field
trainings, he provides no evidence shedding light on whether conducting these trainings was an
essential or non-essential job function. See RSOF ¶ 26 (citing Defs.’ Tab 4 Ex. 3). So, to the
extent this is his argument, Gross provides no evidence that removing field trainings from his
duties would have been a reasonable accommodation rather than a change to an essential
function of his job. “Employers need not reshuffle staff and resources if doing so would require
reallocating an essential function from the plaintiff to another worker.” Vargas, 980 F.3d at 1189
————————————————————
10 Gross also asserts, and defendants dispute, that WBS’s policies required it to be more proactive and
not leave it to him to speak up when an assignment exceeded his medical restrictions. See Resp. 14.
Gross cites no cases or statutes supporting this argument, see id., and he does not develop it further.
To the extent that Gross argues that defendants did not engage in the interactive process concerning a
reasonable accommodation required by the ADA, “this case falls into the category of cases in which
an employer’s alleged failure to adequately engage in the interactive process is immaterial” because
Gross has not shown that he was a qualified individual with a disability. McCallister, 983 F.3d at 973
(quoting Stern, 788 F.3d at 293, and citing Basden v. Pro. Transp., Inc., 714 F.3d 1034, 1039 (7th Cir.
2013)).
34
(citing Peters v. City of Mauston, 311 F.3d 835, 845–46 (7th Cir. 2002)) (holding that assigning a
mail carrier light duty work after he aggravated a foot injury and could no longer carry up to
50 pounds, as the job required, would have altered an essential function of the job).
In sum, Gross has not carried his burden at summary judgment to show that he was a
qualified individual with a disability either in 2015‒16 or when he was terminated. His ADA
claims are dismissed.
D. Failure to Promote
The parties employ the McDonnell Douglas framework for Gross’s failure to promote
claims. Mem. Supp. Mot. to Dismiss 19; Resp. 17. To make a prima facie case of employment
discrimination based on failure to promote, Gross must come forward with evidence from which
a jury could find that: “(1) he is a member of a protected class, (2) he was qualified for the
position sought, (3) he was rejected for the position, and (4) someone outside the protected class
who was ‘not better qualified’ was hired instead.” Barnes v. Bd. of Trs. of the Univ. of Ill.,
946 F.3d 384, 389 (7th Cir. 2020) (quoting Riley v. Elkhart Cmty. Schs., 829 F.3d 886, 892
(7th Cir. 2016)). Focusing on Gross’s qualifications and those of the candidates selected,
defendants argue that Gross has not provided sufficient evidence to withstand summary
judgment on the second and fourth elements. See Mem. Supp. Mot. Summ. J. 19–20. They
assert that the jobs for which Gross applied were outside of his department, were rated at a
higher salary grade than the job Gross held, and “required more complex skills.” Id. at 20.
Gross responds by citing his resume, the job descriptions, and undisputed evidence concerning
the selected candidates. See Resp. 17–21. He argues that he met each position’s minimum
educational and experience qualifications. See id. at 17–18. The court notes first that Gross has
not identified all of the selectees and that he has not asserted, or cited evidence of, the age and
35
disability status of any of the selectees he has identified, see RSAF ¶ 19, so his failure to
promote claims are limited to race discrimination.
The requirements that a plaintiff show that he was qualified for the position and that the
employer selected someone outside his protected class who was similarly or less qualified are
distinct. See, e.g., Outley v. City of Chicago, 354 F. Supp. 3d 847, 863–64 (N.D. Ill. 2019). On
the first requirement, “If the plaintiff was not qualified for any reason, then [he] falls short of
establishing a prima facie case and there is no inference of discrimination.” Pafford v. Herman,
148 F.3d 658, 669 (7th Cir. 1998) (citing Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179
(7th Cir. 1997)).
Separately, a plaintiff must produce sufficient evidence for a jury to find that “someone
outside the protected class who was ‘not better qualified’ was hired instead.” Barnes, 946 F.3d
at 389 (quoting Riley, 829 F.3d at 892). In analyzing whether the person selected was similarly
or less qualified, the Seventh Circuit has instructed courts to consider “all the relevant factors,
which most often include whether the employees (i) held the same job description, (ii) were
subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had
comparable experience, education, and other qualifications—provided the employer considered
these latter factors in making the personnel decision.” Ajayi v. Aramark Bus. Servs., Inc.,
336 F.3d 520, 532 (7th Cir. 2003) (citing Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002)).
Gross has provided very little information from which to draw this comparison. He relies
entirely on a copy of his resume, the written job descriptions for the positions, and four of the
selectees’ cover letters and resumes. See RSAF ¶ 19 (also citing Gross Dep. 94 for different
proposition); RSAF ¶ 1 (citing Resume, Pl.’s Tab. A); RSAF ¶ 15 (citing Pl.’s Tab C Ex. 4, ECF
36
No. 143-4 (job descriptions)); Pl.’s Tab N, ECF No. 143-15 (application materials of Gross and
certain selectees). Gross argues, Resp. 17, that none of WBS’s written policies prohibit an
employee from applying for a job outside his or her department or with a higher salary grade.
See Tucker Aff. Exs. 1–7. Defendants point to no such policy. And nothing on the face of the
job descriptions disqualifies applicants outside the department or applicants presently holding a
position with a lower salary grade.
Per his resume, Gross earned a bachelor’s degree (school unspecified) in political science
and a master’s degree in public administration from Roosevelt University, likely in 1975. See
Pl.’s Tab. A at 2; Pl.’s Tab N at WBS498. He completed some coursework at Northwestern
University’s Graduate School of Business, but he did not receive a diploma. Pl.’s Tab N
at WBS499. Before he began working for WBS in 2012, Gross had approximately 20 years of
experience in Human Resources, including serving as an HR consultant for approximately
16 years. See Pl.’s Tab. A at 1‒2.
Defendants argue that Gross did not meet the formal education requirement for all
positions because public administration was not on the list of permitted degrees, but they leave
out important language in some of the job descriptions permitting a degree in a “similar” or
“related” field to be substituted for the specific disciplines listed. See Reply 14–15, ECF
No. 148. Generally, “[w]hat the qualifications for a position are, even if those qualifications
change, is a business decision, one courts should not interfere with. We do not tell employers
what the requirements for a job must be.” Schaffner v. Glencoe Park Dist., 256 F.3d 616, 621
(7th Cir. 2001) (citing Gorence v. Eagle Food Ctrs., 242 F.3d 759, 765 (7th Cir. 2001)). Where,
as here, some of the job listings require a degree in specific disciplines or an “equivalent” or
37
“similar” field, courts will not strain to read the formal education requirement beyond its
“obvious intent.” Holmberg v. Baxter Healthcare Corp., 901 F.2d 1387, 1392 (7th Cir. 1990).
The parties do not explore the question of whether Gross’s master’s degree in public
administration is similar or equivalent to the various fields listed in the job descriptions at issue,
such as human resources, business, labor relations, and psychology. The job description for
Gross’s position, Corporate Safety Consultant, required an associate’s degree in “Safety,
Industrial Hygiene, Health, Human Resources or [a] related field.” Defs.’ Tab 4 Ex. 3 at 2. WBS
obviously considered Gross’s master’s in public administration to be in a “related field” when it
hired him. Thus, on this limited record, a reasonable jury could find that Gross’s master’s degree
in public administration satisfied the stated requirements for a degree in human resources or a
related/similar field. See Lawhead v. Ceridian Corp., 463 F. Supp. 2d 856, 866 (N.D. Ill. 2006).
Based on the job descriptions, cover letters, and resumes the parties cite, see RSAF ¶¶ 1,
15, 19, Gross has made out a prima facie case as to the following two positions:
•
HR Business/Labor Consultant
o The job description required a bachelor’s degree in “Human Resources, Business,
Labor and Employee Relations, Psychology or similarly named discipline.” Pl.’s
Tab C Ex. 4 at WBS881. A reasonable jury could conclude that Gross’s degree
was in a similar field.
o The selectee, Brandon Pendleton (non-African American), had a master’s degree
in labor and industrial relations and over 14 years of HR-related experience. Pl.’s
Tab N at WBS493‒95. A reasonable jury could conclude that Gross and
Pendleton were similarly qualified for the position.
•
Employee Relations Consultant
o The job description required a bachelor’s degree in “Human Resources, Employee
Relations, Business, Psychology or related fields.” Pl.’s Tab C Ex. 4 at WBS878.
A reasonable jury could find that Gross’s degree was in a related field.
o The selectee, Marilou Counard (non-African American), had a master’s degree in
counseling psychology and a bachelor’s degree in psychology. She had 10 years’
experience as an “EAP Therapist/Senior Therapist,” eight years’ experience as a
“Team Lead” and/or “Clinic Administrator,” and three years’ experience as a
corporate recruiter. Pl.’s Tab N at WBS505‒08. Considering his 20 years of HR
38
experience, a jury could conclude that Gross and Counard were similarly qualified
for the position.
Gross has not made out a prima facie case as to the remaining positions for the following
reasons:
•
Manager of Safety Services
o The selectee, Gyldnis King, is an African American woman, so she is not outside
Gross’s protected class. RSAF ¶ 19; see also Riley, 829 F.3d at 892 (citing
Jaburek v. Foxx, 813 F.3d 626, 631 (7th Cir. 2016)).
•
Director of Corporate Security
o Gross did not meet the minimum educational requirement of a bachelor’s degree
in “Computer Science, Information Technology, [or] Engineering.” Pl.’s Tab N
at WBS886. Gross also did not possess “[s]ecurity related experience/background
in network infrastructure, cyber security, physical security or critical
infrastructure systems.” Id.
o Unlike the prior positions, this job description does not permit substitution of a
similar or equivalent degree. Gross does not have the equivalent of a computer
science or information technology degree or any similar experience on his
resume. He has therefore failed to show he was qualified. See Holmberg,
901 F.2d at 1392; David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 2015
WL 1887752, at *5 (N.D. Ill. Apr. 24, 2015), aff'd, 846 F.3d 216 (7th Cir. 2017);
Jablonski v. Chas. Levy Circulating Co., 919 F. Supp. 298, 300 & n.1 (N.D. Ill.
1996).
•
Manager of Workforce Planning
o Gross does not identify the selectee. See RSAF ¶ 19. No comparison is therefore
possible. See Outley, 354 F. Supp. 3d at 864.
•
Business Developer
o Gross does not identify the selectee. See RSAF ¶ 19. No comparison is therefore
possible. See Outley, 354 F. Supp. 3d at 864.
As to the two positions for which Gross has made out a prima facie case,11 the burden
under the McDonnell Douglas framework shifts to defendants to provide “admissible evidence
————————————————————
11 Defendants argue for the first time in their reply that Gross failed to exhaust his administrative
remedies as to these positions because he did not file his September 2015 charge of discrimination
within 300 days of the failures to promote. See ECF No. 148 at 20. Defendants cite no evidence, and
this court knows of none, showing the dates on which any of the hiring decision were made or when,
if ever, Gross learned of them. See id. Defendants fail adequately to develop this argument, and they
have waived it by waiting to make it in their reply brief, thereby depriving Gross of an opportunity to
(continued on next page)
39
setting forth a legitimate, nondiscriminatory reason” for selecting a candidate other than Gross.
Loyd v. Phillips Bros., 25 F.3d 518, 522 (7th Cir. 1994) (citation omitted). As the Supreme
Court explained in Texas Department of Community Affairs v. Burdine, “the defendant must
clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's
rejection. The explanation provided must be legally sufficient to justify a judgment for the
defendant.” 450 U.S. 248, 255 (1981). As the Court emphasized in a footnote, “An articulation
not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely
through an answer to the complaint or by argument of counsel.” Id. at 255 n.9.
Defendants have not carried their burden at step two of the McDonnell Douglas
framework. They assert in their briefing and in their LR 56.1(a)(2) statement of undisputed
material facts that the person selected for each of the jobs to which Gross applied was considered
to be better qualified. See SOF ¶¶ 45–46. As proof, defendants rely on the affidavit of Geeta S.
Nagarajan (“Nagarajan”), a Senior Human Resources Consultant. See id. However, Nagarajan
avers only that Gross was not selected and does not purport to give the reasons for any of the
hiring decisions at issue. See Nagarajan Aff. ¶ 12. Nor does Nagarajan’s affidavit provide a
basis for finding that she was involved in those decisions or had personal knowledge of the
reasons the decisions were made. See id. On the contrary, she avers that she has personal
knowledge of job titles and pay grades but no more. Id. ¶ 4. This is insufficient to carry
defendants’ burden to articulate, through admissible evidence, a legitimate, non-discriminatory
reason for Gross’s non-selection. Thus, the McDonnell Douglas burden shifting process ends for
(continued)——————————————————
respond. See, e.g., White v. United States, 8 F.4th 547, 552 (7th Cir. 2021) (citing United States v.
Cisneros, 846 F.3d 972, 978 (7th Cir. 2017)).
40
the two positions for which Gross has made a prima facie case, and summary judgment is denied
as to those two positions and granted as to the others. See Loyd, 25 F.3d at 524.
E. Retaliation Claim (Count V)
Gross brings a retaliation claim under 42 U.S.C. § 1981 in Count V of his third amended
complaint. ECF No. 55 ¶¶ 93–101. “Section 1981 causes of action are limited to discrimination
claims based on race.” Riley, 829 F.3d at 892 (citing McDonald v. Santa Fe Trail Transp. Co.,
427 U.S. 273, 285–86 (1976), and Humphries v. CBOCS W., Inc., 474 F.3d 387, 402–03 (7th Cir.
2007)). Gross asks the court to analyze the evidence supporting his retaliation claim holistically
under Ortiz, Resp. 22. To prevail on his retaliation claim, Gross must identify sufficient
evidence for a jury to find: “(1) a statutorily protected activity; (2) a materially adverse action
taken by the employer; and (3) a causal connection between the two.” Abebe v. Health & Hosp.
Corp. of Marion Cnty., 35 F.4th 601, 608 (7th Cir. 2022) (quoting Humphries, 474 F.3d at 404);
see also Jokich v. Rush Univ. Med. Ctr., 42 F.4th 626, 633 (7th Cir. 2022) (citing Boston v. U.S.
Steel Corp., 816 F.3d 455, 464 (7th Cir. 2016)) (same elements for Title VII retaliation);
Parker v. Brooks Life Sci., Inc., 39 F.4th 931, 936 (7th Cir. 2022) (quoting Kotaska v. Fed.
Express Corp., 966 F.3d 624, 632 (7th Cir. 2020)) (same elements for ADA retaliation except that
plaintiff must show a “but for causal connection”); Brooks, supra, 39 F.4th at 433 (quoting
Rozumalski v. W.F. Baird & Assocs., Ltd., 937 F.3d 919, 924 (7th Cir. 2019)) (same elements for
ADEA retaliation claims). For purposes of a § 1981 retaliation claim, adverse action means “one
that ‘well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.’ ” Abebe, 35 F.4th at 608 (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006)).
Gross contends that he experienced several retaliatory adverse employment actions in his
response memorandum, but he relies on citations to his complaint and direct citations to his
41
deposition transcript to support nearly all of them. See Resp. 22–23. Setting aside Gross’s
improper citations to the complaint and to his deposition transcript, Gross identifies two
statutorily protected activities with support in the LR 56.1 fact statements: (1) his filing of a
charge of discrimination in September 2015; and (2) his complaint to defendants’ chief HR
officer, William Lasko, in August 2015. See RSOF ¶¶ 41–42; RSAF ¶ 22; see also Resp. 22. “A
complaint of discrimination is a protected activity . . . only if the discrimination is based on a
protected characteristic like race.” McHale v. McDonough, 41 F.4th 866, 872 (7th Cir. 2022)
(ellipses in original) (quoting Miller v. Chi. Transit Auth., 20 F.4th 1148, 1155 (7th Cir. 2021)).
It is undisputed, but not supported by the evidence cited, that Gross’s EEOC charge
alleged discrimination based on race, age, and disability. See RSOF ¶ 42. “Filing a charge with
the EEOC about the alleged discrimination is the most obvious form of statutorily protected
activity.” McHale, 41 F.4th at 871 (alteration omitted; emphasis in original) (quoting
Silverman v. Bd. of Educ. of City of Chi., 637 F.3d 729, 740 (7th Cir. 2011), overruled on other
grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016). Further, uncontested
summary judgment evidence establishes the specifics of Gross’s complaint to Lasko: He
complained about the lack of advancement opportunities for minority workers. See RSOF ¶ 41
(citing Gross Dep. 133:7–15). As these facts are undisputed at summary judgment, Gross has
carried his burden to show that his EEOC charge and his complaint to Lasko were statutorily
protected activities. Cf. McHale, 41 F.4th at 871–72 (discussing and applying test for
determining whether a particular EEOC charge or internal complaint constitutes statutorily
protected activity).
Gross argues regarding the third element of his prima facie case, “There is a casual [sic]
connection because the adverse actions against Gross were immediate after his complaints.”
42
Resp. 23–24. Gross cites nothing to support his contention of immediate reprisal, see id., and the
undisputed evidence refutes it. Defendants terminated Gross in October 2017, more than two
years after he complained to Lasko and filed his September 2015 EEOC charge. RSAF ¶ 39. It
is undisputed that Gross applied for five of the six jobs at issue in this case before he engaged in
protected activity in August and September 2015. See RSOF ¶ 44 (applications submitted
“between April 2013 and April 2015”). And Gross applied for the Manager of Safety position in
January 2017, more than a year after he engaged in protected activity. See RSOF ¶ 51
(undisputed). The parties cite no evidence showing when decisions were made on Gross’s job
applications.
The Seventh Circuit has “held that summary judgment is inappropriate where as much as
a month’s delay occurred between the protected activity and adverse employment action, where
that suspicious timing was combined with additional evidence of pretext.” Parker, 39 F.4th
at 937 (citing Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012)). But “suspicious timing
alone is not enough to establish a causal connection between the adverse action and the protected
activity.” Abebe, 35 F.4th at 608 (citing Coleman, 667 F.3d at 860). Gross’s causation argument
therefore fails both because he relies on suspicious timing alone and because he cites no
evidence showing that the amount of time between his protected activities and the adverse
employment actions he experienced falls within the window the Seventh Circuit has found to be
suspicious. Because Gross has not come forward with sufficient evidence of causation, his
retaliation claim is dismissed.
V. Conclusion
For the reasons stated, defendants’ motion for summary judgment is granted in part and
denied in part. Defendant Peoples Gas is dismissed because plaintiff has not shown that a
genuine issue for trial exists on whether it was his joint employer. All of plaintiff’s claims are
43
dismissed on the merits except for plaintiff's failure to promote claims based on his applications
for the positions of HR Business/Labor Consultant and Employee Relations Consultant.
Dated: September 30, 2022
/s/
Joan B. Gottschall
United States District Judge
44
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