Smith v. Levy Sec. Corp.

ARTHUR A. SMITH, Plaintiff,

v.LEVY SECURITY CORPORATION, Defendant.

No. 09 CV 7472

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Dated: May 10, 2012

Judge Joan H. Lefkow

OPINION AND ORDER

Plaintiff Arthur A. Smith filed suit against Levy Security Corporation, alleging age discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and disability discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"),¹ 42 U.S.C. § 12101 et seq.² Before the court is Levy's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the motion [#43] will be granted.³

BACKGROUND⁴

I. Smith's Employment With Levy

Smith worked for Levy as a door ambassador at Evanston Hospital from April 24, 2006 until his termination on December 29, 2006. Beginning in July 2006, Michael Potter was the corporate director of public safety assigned to Evanston Hospital. Justin Dodson was the assistant director of public safety, and he reported directly to Potter. Dodson was Smith's supervisor.

Johnnie Robinson was another door ambassador at Evanston Hospital. He and Smith were often scheduled to work at the same time, and they had ongoing disputes about relieving each other from breaks. Smith and Robinson complained about each other to Dobson, who concluded, based on the nature of the complaints and his own observation of the situation, that both employees were sometimes intentionally late in providing relief to the other. Because of the frequent complaints, Dobson prepared a written schedule outlining break and shift times for Robinson and Smith.

Smith was hospitalized on November 8, 9, and 10, 2006. When he returned to work on Monday, November 13, Smith gave Potter a note from his doctor that stated, "Art Smith may return to work on Monday 11/13/06. He needs to sit frequently and be able to use [the] restroom frequently." (Amend. Compl. Ex. C.) Neither Potter nor Smith gave the note to Dodson.

Shortly after Smith returned to work, Potter told him that he could use the restroom whenever he needed and that he did not need to request permission to take bathroom breaks.Dodson and the other supervisors, on the other hand, indicated that Smith still needed to request relief from another door ambassador before he could go to the bathroom.

On December 5, 2006, Dodson distributed a memorandum outlining new break reporting procedures for all door attendants and dispatch officers. (Def.'s Ex. J.) The policy required door attendants to inform dispatch officers of breaks and report the nature and duration of each break, including bathroom breaks. (Id. ¶¶ 5-7; Dodson Dep. at 61.) Sometime thereafter, Smith complained about Dodson's policy to Potter and said that he was not able to use the bathroom whenever he needed. Potter brushed Smith off, and told him to talk to Dodson about the issue first.⁵

On December 7, 2006, Dodson prepared an employee action form asserting that Smith had been eating while on duty. (Def.'s Ex. K.) The next day, Dodson prepared an employee action form asserting that Smith had failed to relieve Robinson for his lunch break. (Def.'s Ex. L.) The December 8, 2006 form states that Smith had been verbally counseled by Porter on December 7, 2006, for his failure to relieve Robinson, and that Smith's subsequent conduct was "indicative of an unacceptable behavior pattern by Arthur Smith." (Id.) The December 7 and December 8 forms state that Smith received "counseling/discussion" as a result of his infractions.

Dodson prepared another employee action form on December 13, 2006 that asserted that Smith had failed to relieve Robinson for a lunch break. (Def.'s Ex. M.) The form states that "[a]ny further disobedience by Smith will result [in] further disciplinary action up to and including discharge from employment." (Id.) The form states that Smith received a "written warning" as a result of his conduct. (Id.) Sometime between December 1 and December 13, 2006, Dodson prepared another employee action form because Smith was sitting while on duty.

Smith complained about the employee action forms to Potter, who decided to investigate them before they were formally issued and placed in Smith's file. (Dodson Dep. at 78.)

At some other time, Dodson prepared an employee action form stating that Smith had been publicly disrespectful and unprofessional during a telephone call with Dodson. (Def.'s Ex. I.) Although the form indicates that it was presented to Smith and that he refused to acknowledge the discipline, Smith denies that he was ever presented with this employee action form. He notes that the footer at the bottom of the document indicates that it was not printed until December 26, 2006, over three weeks after it was allegedly signed by Dodson. (See id.) The form states that Smith received "counseling/discussion" as a result of his misconduct. (Id.)

II. The December 14, 2006 Meeting and Smith's Termination

Smith, Dodson, and Potter met on December 14, 2006 to discuss the employee action forms. During the meeting, Smith told Potter that he felt that he was being treated unfairly based on the series of disciplines. Smith said that it was unfair to discipline him for sitting while on duty because his doctor's note stated that he should be able to sit frequently. Potter retracted the employee action form for sitting while on duty. Smith also requested Potter to retract the discipline for eating while on duty, but Potter refused. Potter explained that Smith's doctor'snote did not say that Smith needed to eat while he was on duty. Dodson testified that the December 14 meeting was the first time he learned that Smith had a doctor's note regarding any medical condition.

After Potter refused to withdraw the discipline, Smith told him something to the effect of "Levy policy is Levy policy and outside of here Levy policy doesn't matter and what happens on the outside happens on the outside." (Potter Dep. at 71; Dodson Dep. at 100.) Potter perceived the statement as a threat. He understood Smith to mean, "Hey, I'll see you outside of here when we're done . . . based on Smith's body language, movements, [and] his elevated voice levels." (Potter Dep. at 77-78.)⁶ Potter thought that Smith was saying "basically I can do whatever I want to you outside of this, because Levy policies don't apply." (Id. at 87.) Potter then asked Dodson whether he thought the statement was a threat, and Dodson stated that he did. Smith then yelled that Potter should not "put words in his mouth." (Id. at 74.) Potter also asked Smith, "Are you threatening me?" (Smith Dep. at 95.) Smith responded, "No, I'm not threatening you." (Id.) Potter then said, "Yeah, you did. You threatened me," and ordered Smith to leave the office. (Id.) Smith reiterated that he had not made a threat as he was leaving Potter's office. (Id.)

After the meeting, Dodson prepared another employee action form documenting the events that occurred. (Def.'s Ex. N.) He recommended that Smith be suspended or discharged. (Id.) Potter contacted Patricia Hoppenstedt, the assistant vice president of human resources, and reported that Smith had threatened him. Hoppenstedt assigned William Larson, a humanrelations manager, to investigate the incident. Potter then prepared a written statement documenting his recollection of the incident.

Larson and Hoppenstedt held a telephone conference with Smith and his attorney on December 21, 2006. Smith declined to give his version of events over the phone, and instead submitted a written response to Potter's allegations via email on December 28, 2006. (Pl.'s Exs. G-14, G-20.) Smith denied that he had threatened Potter or Dodson and stated that he had simply been trying to explain that he had a medical condition that required him to sit and to take medications with food. (Pl.'s Ex. G-14.) Smith's response also states that Potter and Dodson had previously been unwilling to provide him with accommodation for a medical condition that required him to take bathroom breaks at unassigned times. (Id.) Smith wrote that he had complained to Larson about Potter and Dodson on December 8, 2006, and that since then the two supervisors had retaliated against him for making the complaint by scrutinizing his work and presenting him with numerous disciplinary action forms. (Id.)

During their investigation, Larson and Hoppenstedt reviewed Smith's file together. (Hoppenstedt Dep. at 67.) At the end of the investigation, Hoppenstedt concluded that Smith had threatened Potter and that he should be terminated. Hoppenstedt testified that Smith's conduct towards Potter was "completely unacceptable" because it was "threatening . . . insubordinate [and] disrespectful. And I cannot have supervisors feel threatened or afraid of being around their employees because of the actions the employee chose to take." (Id. at 182.) At her deposition, Hoppenstedt could not recall what documents she relied on in reaching the decision to terminate Smith.

Approximately six weeks after he was terminated from Levy, Smith began a new job at the Park Newberry Condominiums, where he is still employed. Smith filed a charge with the Equal Employment Opportunity Commission ("EEOC") on March 15, 2007. (Compl. Ex. A.)

SUMMARY JUDGMENT 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(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Id. While the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L....