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GILBERT v. AMERICAN AIRLINES

January 6, 2004.

DEAN E. GILBERT, Plaintiff, v., AMERICAN AIRLINES, INC., et al. Defendants


The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Dean Gilbert, acting pro se, has sued his former employer, American Airlines, Inc. ("American"), as well as Ann McNamara, American's general counsel, and Neil Holman, Cardelle Braxton, and Denise Kraujalis, who are, respectively, a partner, an associate, and a legal assistant from Winston & Strawn, the law firm that represented American in previous lawsuits filed by Gilbert. In this litigation, Gilbert alleges that defendants unlawfully retaliated against him for filing an employment discrimination lawsuit against American, thus violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1981.*fn1 Additionally, Gilbert claims defendants unlawfully discriminated against him on the basis of his race. The Page 2 parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons explained below, the court grants summary judgment in favor of defendants.*fn2

I. Summary Judgment Standard & Local Rule 56.1

  Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, Page 3 and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the movant sets forth its argument, properly supported by the record, that there is no genuine issue of material fact requiring trial, the burden shifts to the nonmovant to identify specific facts that preclude summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[U]nless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," there is no issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

  Further, in this district, all parties must comply with Local Rule 56.1 which governs motions for summary judgment. Local Rule 56.1 requires the movant to file a statement of material facts demonstrating why the movant believes it is entitled to judgment as a matter of law. This statement "shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." L.R. 56.1(a)(3). The opposing party must respond to each numbered paragraph in the movant's L.R. 56.1(a)(3) statement. L.R. 56.1(b)(3). If the opposing party contests any fact set forth by movant, the opposing party must expressly state its disagreement and include "specific references to the affidavits, parts of the record, and other supporting materials" that establish the basis for the disagreement. Id. "All material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party." Id. The opposing party may also file a statement of any additional material facts demonstrating why summary judgment cannot be granted. Id. If the movant fails to properly controvert those additional material facts, they are Page 4 also deemed admitted. L.R. 56.1(a)(3).

  Here, American properly filed its L.R. 56.1(a)(3) statement of material facts ("American's SUF" or "Am. SUF"). Although Gilbert filed a response, his response failed to comply with L.R. 56.1(b)(3). Rather than responding to each numbered paragraph with an admission or a denial supported by the record as required, Gilbert submitted an affidavit consisting of twenty numbered paragraphs asserting various "facts" without a single citation to support in the record. Even overlooking Gilbert's failure to comply with the rule and examining the substance of Gilbert's response, as it turns out, Gilbert's response lacks much substance. With the exception of paragraph 11, which sets forth Gilbert's version of a statement McNamara made to him in August 1998 (and effectively disputes paragraph 12 in American's SUF, setting forth McNamara's version of that same conversation), nothing in Gilbert's response serves to dispute any material fact in American's SUF. Indeed, many of the "facts" asserted in Gilbert's response, even if they were properly supported, are immaterial to the case at bar. (See, e.g., Pl.'s Resp. to Defs.' L.R. 56.1 Statement ("Pl.'s SUF Resp."), ¶¶ 2, 5-10, 12-13, 19.)

  Because of Gilbert's failure to adequately respond to American's SUF, with the exception of paragraph 12, all of the material facts set forth American's SUF are deemed admitted, provided they are properly supported by the record.*fn3 N.D. Ill. L.R. 56.1(b)(3); Smith v. Lamz, 321 F.3d 680, 682-83 (7th Cir. 2003). To the extent any statement in Gilbert's response can be Page 5 considered a statement of additional fact,*fn4 the court will address such facts as necessary.

  II. Background*fn5

  Gilbert, who worked for American for less than nine months,*fn6 has not been employed by American since September 1986.*fn7 In March 1987, Gilbert filed a race discrimination charge with both the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC"), alleging that American terminated him because he is African — American. In June 1989, Gilbert filed a complaint before the IDHR based on the 1987 charge. That proceeding was voluntarily dismissed in June 1996, over American's objection, before any ruling was issued on American's motion for summary decision. Gilbert subsequently obtained a right to sue letter from the EEOC, and initiated a Title VII claim for racial discrimination and retaliation in the Northern District of Illinois on May 28, 1998, Gilbert v. American Airlines, Inc., 98 C 3263. On January 25, 1999, Judge Lindberg granted summary judgment in favor of American, finding that in addition to being time — barred, Gilbert was unable to establish a prima facie case of either racial discrimination or retaliation, and was also unable to show that American's articulated, non — discriminatory reason for its actions was pretextual. When Gilbert appealed that ruling, the Seventh Circuit affirmed Judge Lindberg's decision. Gilbert v. Page 6 American Airlines, Inc., 234 F.3d 1273 (7th Cir. 2000).*fn8

  Events that occurred during the litigation before Judge Lindberg and the subsequent appeal form the basis of the present litigation. In the summer of 1998, Judge Lindberg ordered the parties to participate in a settlement conference. After the first settlement conference failed, Judge Lindberg ordered McNamara, American's general counsel, to participate in a second settlement conference. According to Gilbert, at that second settlement conference "McNamara told [him] that American would obtain its costs and attorneys fees from him and use its vast resources to ruin his life the way it had ruined the lives of other female plaintiffs who were unsuccessful [in their claims]." (Pl.'s SUF Resp., ¶ 11.) Although McNamara's version of her statement to Gilbert differs significantly, for purposes of summary judgment, defendants concede Gilbert's version of the facts concerning that conversation. (Am.'s Resp. to Pl.'s Add'l Facts, ¶ 11.)

  Later, while Gilbert's appeal of the summary judgment ruling was pending, he was erroneously billed for two Non — Revenue Space Available ("NRSA") flights that had actually been taken by two American employees. The first invoice Gilbert received, dated July 31, 2000, was for $20.54, The second invoice, dated September 30, 2000, was for the previously billed $20.54, plus a $7.53 charge for another trip, totaling $28.07.

  The NRSA system, as relevant to this case, works as follows. American provides NRSA tickets to American employees and some former American employees.*fn9 Even though individuals Page 7 using NRSA tickets may fly for free or at a reduced rate depending on various factors, they are generally assessed certain service charges, fees, and taxes. Former employees who retain their NRSA privileges are identified by their former employee identification numbers. Accordingly, American's computer system includes employee identification numbers for all former employees who are off — payroll, regardless of whether they have NRSA privileges. Recognition of a former employee's identification number by American's computer system does not depend on that individual having "active" employment status with the airline.

  NRSA travelers use either paper or electronic tickets. During 2000, the paper tickets were sent for processing to a third — party vendor in Mexico, National Processing Company ("NPC"). Once the ticket information (employee identification number, ticket number, flight segment origin and destination, etc.) is entered into the computer, the information is transferred electronically to the NRSA facility in Tulsa, where the computer system determines the amount the employee or former employee should be charged. If the NRSA traveler is a former employee, a paper invoice is then sent to the last known address.

  Gilbert's former employee identification number is 014732.*fn10 The first invoice he received, for $20.54, was for a flight taken by American employee S. Caballero, whose employee identification number is 414732. The second charge misbilled to him, for $7.53, was for a flight Page 8 actually taken by American employee L. Marchand, whose employee identification number is 014733. In the Fall of 2000, while the appeal was pending, Gilbert raised the issue of the NRSA invoices with Holman, who in turn ...


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