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Anderson v. Foster Group

October 16, 2007


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


From January 2000 until June 2004, Clark Anderson ("Plaintiff"), an African-American, was employed by The Foster Group ("Defendant"), an information technology consulting company owned and operated by African-Americans. On June 25, 2004, Defendant terminated Plaintiff for the stated reason of insubordination after Plaintiff refused to meet with one of his superiors and then hung up the phone on him. In this action, Plaintiff claims that Defendant discriminated against him on the basis of his race and on the basis of what he claims is a disability resulting from a herniated disc in his back. Plaintiff further claims that his termination was a product of retaliation. Plaintiff now sues Defendant for race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. (Count I); retaliation for complaints of race discrimination under Title VII (Count II); disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq. (Count III); retaliation for complaints of disability discrimination in violation of the ADA (Count IV); and retaliatory discharge under Illinois law (Counts V, VI, and VII). Defendant has moved for summary judgment on all counts. For the reasons explained below, the court grants Defendant's motion as to Plaintiff's federal law claims (Counts I, II, III, IV, and VII). Plaintiff's state law claims (Counts V and VI) are dismissed without prejudice.


A. Plaintiff's Employment Prior To His July 2003 Medical Leave

Plaintiff, who is a high school graduate and took some classes at the Computer Learning Center in the early 1980's, began working for Defendant as a Senior Consultant in January 2000. (Def. LR 56.1 Stmt. ¶¶ 2, 7-8.)*fn2 Plaintiff's initial salary was $65,000 a year; by the time he was terminated on June 25, 2004, Plaintiff was earning a salary of $75,354. (Id. ¶¶ 3, 5.) During the time Defendant employed Plaintiff, he never experienced a decrease in pay. (Id. ¶ 6.)

Defendant uses one set of job titles internally and another set in its dealings with its clients. (Id. ¶ 26.) Internally, "Senior Consultants" report to "Managers" or "Directors," and "Managers" or "Directors" report to "Partners." (Pl. LR 56.1 Stmt. ¶ 4.) Though the parties disagree about Plaintiff's internal job title at certain points during his employment, it is undisputed that when he began working for Defendant, Plaintiff's internal title was Senior Consultant, and his duties included supervising two other employees. (Def. LR 56.1 Stmt. ¶ 28; Pl. LR 56.1 Stmt. ¶ 2.) Defendant claims that Plaintiff's title never changed, (Def. LR 56.1 Stmt. ¶ 23), but the portion of Plaintiff's deposition to which Defendant cites establishes only that Plaintiff had the title Senior Consultant at some point, and does not make clear how long Plaintiff held that title. (See 4/8/05 Anderson Dep. at 169, Tab A to Def. LR 56.1 Stmt.) Although Plaintiff did testify that his title was Senior Consultant, (id.), he also asserts that his internal title was Manager for several years and that, as Manager, he supervised from six to eleven employees. (Pl. LR 56.1 Resp. ¶ 28; Pl. LR 56.1 Stmt. ¶ 5.) In support, Plaintiff cites to a December 6, 2000 Staff Evaluation Form that refers to his job title as of that date as Manager. (12/6/00 Staff Evaluation Form, Tab KK to Pl. LR 56.1 Stmt.) A Staff Evaluation Form dated October 17, 2001 also lists Plaintiff as Manager, (10/17/01 Staff Evaluation Form, Tab LL to Pl. LR 56.1 Stmt.), but Staff Evaluation Forms completed in each of the next two years identify Plaintiff as a Senior Consultant. (11/22/02 Staff Evaluation Form, Tab MM to Pl. LR 56.1 Stmt.; 11/5/03 Staff Evaluation Form, Tab NN to Pl. LR 56.1 Stmt.)

As part of its technology consulting business, Defendant had a contract to provide services to the Cook County Bureau of Health. (Def. LR 56.1 Stmt. ¶ 24.) When Defendant hired Plaintiff in January 2000, his external or "client" title was "Manager of Network Services" for Cook County Hospital; in April 2000, Defendant assigned Plaintiff the client title of "Associate Director of Network Services." (Id. ¶ 30.) Plaintiff characterizes this assignment as a promotion because his salary increased at the same time from $65,000 to $69,000 and, in a letter dated May 25, 2000, John Foster, Defendant's Managing Partner, congratulated Plaintiff on his "new position." (Id. ¶ 30; 4/08/05 Anderson Dep. at 176-78; 5/25/00 Letter, Tab CC to Pl. LR 56.1 Stmt.)*fn3 It is undisputed that Plaintiff supervised between six and eleven employees in this position. (Pl. LR 56.1 Stmt. ¶ 5.) Both Plaintiff's December 6, 2000 and October 17, 2001 Staff Evaluation Forms, which list Plaintiff's internal title as Manager, also list his client title as "Associate Director of Networking Services." (12/6/00 Staff Evaluation Form; 10/17/01 Staff Evaluation Form.) The parties agree that this client title was reassigned to other employees, Haitao Yao and Donna Hart, in late 2000, though Plaintiff claims he was not informed at that time that his duties in that position were reassigned as well.

(Def. LR 56.1 Stmt. ¶¶ 30-31; Pl. LR 56.1 Stmt. ¶ 11.)*fn4 The parties dispute whether this reassignment of Plaintiff's title and duties in late 2000 constituted a demotion. Defendant contends that Plaintiff was never demoted because his pay was never reduced. Although Plaintiff characterizes the reassignment as a demotion, (Pl. Aff. ¶ 6, Tab AAA to Pl. LR 56.1 Stmt.), he does not say what his own client title was after this reassignment, and the court notes that Plaintiff's October 17, 2001 Staff Evaluation Form continued to list Plaintiff as the Associate Director of Networking Services. Plaintiff's November 22, 2002 Staff Evaluation Form lists his client title as "Network and Server Services," and his November 5, 2003 Staff Evaluation Form lists his client title as "Server Analyst." (11/22/02 Staff Evaluation Form; 11/5/03 Staff Evaluation Form.)

Plaintiff has not explained exactly when or how he became aware of the purported demotion. He asserts, however, that in February 2001, Mike Sommers, a Partner who at times gave Plaintiff assignments, told him that he would have to share his position with Donna Hart. (Pl. LR 56.1 Stmt. ¶ 12.)*fn5 Plaintiff also asserts that in February 2001, Sommers admitted to Plaintiff that he had told Plaintiff's subordinates to ignore his attempts to supervise them. (Id. ¶ 13.) And, Plaintiff claims, for several months in 2001, Sommers gave him no assignments, with the result that Plaintiff was forced to search for and create work for himself. (Id. ¶ 14.) According to Plaintiff, by mid-2001, Sommers began giving him "entry-level, desk-top [sic] assignments." (Id.) From early 2001 on, Plaintiff's duties included taking computer equipment to outlying clinics of the Cook County Hospital and resolving problems on personal computers. (Def. LR 56.1 Stmt. ¶ 34.)*fn6 It is undisputed that, by late 2001, Plaintiff was no longer supervising any employees. (Pl. LR 56.1 Stmt. ¶ 16.) Although Plaintiff claims (and his October 2001 Staff Evaluation Form reflects) that he continued to hold the internal title of Manager, Plaintiff asserts that in October 2001, Sommers began treating him as if he were a desktop computer technician and told him to take directions from Winslow Redmond, an employee Plaintiff had previously supervised. (Id. ¶ 17.)

In March 2002, Sommers assigned Plaintiff to take a one-week class in systems engineering. (Id. ¶ 18.) Plaintiff stopped taking the class before its completion because, he asserts, systems engineering was really no more than data entry; thus, in completing the class, he would "appear to be acquiescing to [his own] . . . demotion." (Id.) In the fall of 2002, Sommers frequently sent Plaintiff to outlying clinics to perform desktop work, such as installing computer systems. (Id. ¶ 20.) In 2002, Plaintiff was also assigned to work under the supervision of Henry O'Neal, an African-American, who had the rank of a Director and therefore reported to a Partner. (Def. LR 56.1 Stmt. ¶¶ 22, 36.) While under O'Neal's supervision, Plaintiff worked on the "time and attendance" project, which involved deploying several kinds of devices and software to meet clients' needs for managing their employees' time and attendance records, and ensuring that the devices worked. (Id. ¶¶ 37-38; Howard Dep. at 34-36.)*fn7 As stated above, Plaintiff's November 2002 Staff Evaluation Form reflected that, as of that date, his internal title had been reduced from Manager to Senior Consultant, that his client title was Network and Server Services for Cook County Hospital, and that he no longer supervised any employees. (Pl. LR 56.1 Stmt. ¶ 21; 11/22/02 Evaluation Form.)

B. Plaintiff's Complaint Of Race Discrimination In Pay

Plaintiff claims that in late 2000, he complained to Russell Pike, Defendant's Chief Operating Officer, about race discrimination in pay. (Pl. LR 56.1 Stmt. ¶ 9.) Specifically, as the result of information he received from Stephanie Osabouhien, a Senior Consultant, Plaintiff came to believe that two of his peers who are both white males, Tony Bullaro, a Manager, and Richard Balluff, were earning over $100,000.*fn8 (Id. ¶ 6.) In fact, however, it is undisputed that both Bullaro and Balluff were earning only $78,000 as of May 2001. (Id. ¶¶ 7-8.) Plaintiff asserts that when he complained to Pike in 2000, Pike instructed him to take his complaint to Mike Sommers, who had the rank of Partner. (Id. ¶ 9.) Plaintiff claims that he did speak to Sommers about the matter several weeks later, and that Sommers told him to talk to Mr. Foster, Defendant's owner. (Id. ¶ 10.) Pike testified that neither Plaintiff nor any other employee ever complained to him about race discrimination, (Pike Dep. at 56, Tab D to Def. LR 56.1 Stmt.), and there is no evidence that Plaintiff ever spoke to Mr. Foster.

C. Plaintiff's Herniated Disc And Resulting Limitations

In October 2002, Plaintiff developed back pain. (Pl. LR 56.1 Stmt. ¶ 41.)*fn9 On January 28, 2003, Dr. Sunil Patel diagnosed Plaintiff as suffering from a herniated disc, a condition he claims is a disability. (4/8/05 Anderson Dep. at 271-72; Def. LR 56.1 Stmt. ¶ 40; Pl. LR 56.1 Stmt. ¶ 44.) Plaintiff's herniated disc caused acute low back pain with pain radiating down his legs to his feet.

(PL. LR 56.1 Stmt. ¶ 43.) An evaluation dated February 21, 2003 noted degeneration of Plaintiff's L4-L5 disc with some "minimal bulging." (2/21/03 Neurological Evaluation, Tab K to Pl. LR 56.1 Stmt.) In notes of an office visit on March 5, 2003, Dr. Patel confirmed the herniated disc diagnosis. (PL. LR 56.1 Stmt. ¶ 48.) In May 2003, Dr. Patel concluded that Plaintiff's symptoms had improved as a result of physical therapy. (Id. ¶ 51.) By July 2003, however, Dr. Patel imposed restrictions on Plaintiff's activities; specifically, Plaintiff was not permitted to lift more than five pounds at a time, or to stand for more than fifteen minutes at one time or more than twenty minutes in an hour. (Def. LR 56.1 Stmt. ¶ 42; 7/25/03 Letter from Sunil Patel, M.D., Ex. L to Def. LR 56.1 Stmt.) Despite his condition, Plaintiff is able to talk, eat, sleep, relieve himself, breathe, and have sexual intercourse. (Def. LR 56.1 Stmt. ¶ 41.)*fn10

During the early months of 2003 when he was first diagnosed with a herniated disc, Plaintiff's duties included setting up computers for hospital staff. (Pl. LR 56.1 Stmt. ¶ 50.) Plaintiff acknowledges that an "essential function" of his job was setting up end-user devices, (Def. LR 56.1 Stmt. ¶ 43), which required him to lift computers to and from a cart. These devices exceeded Plaintiff's five-pound lifting restriction: monitors weighed twelve pounds, PC's weighed from ten pounds to fifteen pounds, and printers weighed close to thirty-two pounds. (Id. ¶ 44.) Plaintiff claims that his own co-workers or Cook County employees always volunteered to help him with this lifting. (Pl. LR 56.1 Stmt. ¶ 50.) He also asserts, however, that carrying equipment was not a part of his duties at all and that he was mainly working on tasks such as fighting computer viruses, (id. ¶ 89), though he does remember carrying "thin" monitors on a couple of occasions in late 2002 and early 2003. (4/20/05 Anderson Dep. at 544.) The court concludes that it is undisputed that at least some lifting was required of Plaintiff during the time period preceding his leave of absence. Plaintiff's work also required him to stand in order to work with the equipment, and, Defendant notes, "he could not have accomplished these duties from a chair." (Def. LR 56.1 ¶¶ 46-47.)*fn11

Plaintiff insists, however, that his duties did not require him to stand for more than fifteen minutes without sitting down occasionally. (PL. LR 56.1 Stmt. ¶ 49.)*fn12 With the use of a medicated patch, which made Plaintiff's self-described "miserable pain" manageable, Plaintiff was able to stand for fifteen minutes and sit for up to an hour. (Def. LR 56.1 Stmt. ¶¶ 57, 59; 4/8/05 Anderson Dep. at 275-77.)

Russell Pike, Defendant's Chief Operating Officer, did not believe that Plaintiff could perform his responsibilities with the five-pound limitation imposed by Dr. Patel in July 2003. (Def. LR 56.1 Stmt. ¶ 48; Pike Dep. at 151, Tab D to Def. LR 56.1 Stmt.) Pike testified that Defendant was unable to reassign Plaintiff to another position because no other employee who might replace Plaintiff was performing a job that Plaintiff could fulfill, given his limitations. (Def. LR 56.1 Stmt. ¶ 49; Pike Dep. at 149-50.) It is undisputed that Defendant could not provide an accommodation short of hiring someone to assist Plaintiff. (Def. LR 56.1 Stmt. ¶¶ 50-51.)*fn13 Defendant asserts that it would not have been practicable to offer Plaintiff the aid of a board or piece of plastic so that Plaintiff could slide equipment off of a cart, rather than lifting it. (Id. ¶ 51.)*fn14 Dan Howard, a Director for the Cook County Project, explained that even with the aid of a board, some lifting of the equipment would be required to put the equipment on the board or the cart; O'Neal explained that sliding equipment on a board would create a risk that something could tip over in the process. (Howard Dep. at 147; O'Neal Dep. at 87-88, Tab C to Def. LR 56.1 Stmt.) As a result, Defendant contends, Pike suggested to Plaintiff that he take a medical leave until his condition improved. (Def. LR 56.1 Stmt. ¶¶ 52-53, 55.) Plaintiff disputes that the option of a medical leave was merely a suggestion and claims that he was forced to take the leave. (Pl. LR 56.1 Stmt. ¶ 22; Pl. Aff. ¶ 18.) There is substantial evidence that the leave was, in fact, involuntary: in a July 28, 2003 letter, Mike Sommers wrote to Plaintiff that Defendant "must insist that [he] take an unpaid leave until [his] health issues, as documented by Dr. Patel, have been completely resolved." (Pl. LR 56.1 Stmt. ¶ 53; 7/28/03 Letter, Tab O to PL. LR 56.1 Stmt.) Sommers further explained that the "restrictions indicated [would] prevent [Plaintiff] from adequately performing [his] day-to-day job responsibilities and furthermore, the nature of [his] work could jeopardize and/or hinder [his] full recovery." (7/28/03 Letter.) In a letter dated August 1, 2003, Pike wrote to Plaintiff that it was Defendant's understanding that Plaintiff was "in complete agreement with The Foster Group's decision to place [him] on an unpaid medical leave." (8/1/03 Letter, Tab AA to Pl. LR 56.1 Stmt.) But Dan Howard, who was at that time the Director for all of Defendant's information technology work related to the Cook County Bureau of Health, admits that before going on medical leave, Plaintiff told Howard that he did not believe he needed to go on leave, and, in a July 30, 2003 e-mail, Plaintiff reiterated that he did not ask for the medical leave and would take it only if he qualified for "short term disability" coverage under his insurance. (Pl. LR 56.1 Stmt. ¶ 54; Howard Dep. at 96; 7/30/03 Email, Tab Q to Pl. LR 56.1 Stmt.) Though the parties do not clarify whether Plaintiff eventually qualified for "short term disability," Plaintiff did take a leave of absence beginning in July 2003 and continuing until his return to work in October 2003.*fn15 (Def. LR 56.1 Stmt. ¶¶ 53, 55.)

On July 31, 2003, Dr. Patel noted in a follow-up visit that Plaintiff was considering surgery as "a last resort." (Pl. LR 56.1 Stmt. ¶ 55.) An MRI taken on August 26, 2003, during Plaintiff's leave of absence, confirmed that Plaintiff had mild degenerative disc disease at the L4-L5 location. (Id. ¶ 57; 8/26/03 St. James Hospital Report, Tab P to Pl. LR 56.1 Stmt.) Dr. Patel's notes of September 4, 2003 reflect that Plaintiff was still unable to work due to his back pain and that his condition had not improved. (Pl. LR 56.1 Stmt. ¶ 59.)*fn16 On September 18, 2003, Plaintiff began a course of physical therapy two to three times a week for his lower back pain. (Id. ¶ 60.) On October 13, 2003, Dr. Patel prescribed additional physical therapy for Plaintiff and instructed Plaintiff to attend therapy three times per week for four weeks. (Id. ¶ 61.) Plaintiff admits that although the physical therapy did not return his lifting abilities to normal, it did improve those abilities. (Pl. LR 56.1 Resp. ¶ 58.) Dr. Patel gave Plaintiff permission to return to work beginning on October 22, 2003, restricting him only to lifting no more than forty pounds and standing for no more than several hours. (Pl. LR 56.1 Stmt. ¶ 62; Def. LR 56.1 Stmt. ¶ 56.)

On October 15, 2003, just before his return to work, Plaintiff informed Pike that he understood he would have to do "some lifting and standing" in his job and would be able to meet those responsibilities, but that he would need to continue his treatment. (Def. LR 56.1 Stmt. ¶ 54; 10/15/03 Letter, Tab M to Def. LR 56.1 Stmt.) In a similar letter to Howard dated October 23, 2003, Plaintiff referred to and requested accommodation under the ADA in the form of a schedule that allowed him to work 7:00 a.m. to 3:30 p.m. so that he could get to his physical therapy appointments by 5:00 p.m. (Pl. LR 56.1 Stmt. ¶ 64; 10/23/03 Letter, Tab X to Pl. LR 56.1 Stmt.) In this letter, Plaintiff also informed Howard that he expected to need such a schedule for the next six months, until his doctor reevaluated his physical therapy needs. (Pl. LR 56.1 Stmt. ¶ 65; 10/23/03 Letter.) In January 2004, Patrick Sweeney, M.S., an employee of Midwest Minimally Invasive Spine Specialists, confirmed that Plaintiff's MRI at that time possibly showed a "small disc herniation." (Pl. LR 56.1 Stmt. ¶ 69; 1/19/04 Letter, Tab BBB to Pl. LR 56.1 Stmt.)*fn17

According to Plaintiff, at some point after he returned from his leave of absence, he learned-though it is not clear how-that Defendant wanted to change his schedule from the hours he worked before his leave of absence, which would have allowed him to receive therapy in the afternoon, to hours that would have precluded therapy; thus, in March 2004, Plaintiff complained to Dan Howard that Defendant was attempting to force him to work a schedule that would prevent him from getting physical therapy for his back condition. (Pl. LR 56.1 Stmt. ¶ 25; Pl. Aff. ¶¶ 24, 28.)*fn18 The parties agree that Defendant preferred for Plaintiff to work during regular business hours when clients and Defendant's staff were available, as opposed to the schedule Plaintiff had routinely worked, which allowed him to start early in the morning and leave earlier in the afternoon.

(Def. LR 56.1 Stmt. ¶ 68.)*fn19 Plaintiff contends that he had been able to complete his work successfully using an early morning schedule prior to his medical leave, (Pl. LR 56.1 Stmt. ¶ 26), and he objected to the proposed change in his schedule in a May 5, 2004 e-mail to Sommers, Howard, and Pike. (Id. ¶ 66; 5/5/04 E-mail, Tab Y to Pl. LR 56.1 Stmt.) In that e-mail, Plaintiff complained that Sommers and Howard were not working with him "to address [his] needs as a person with a disability." (Pl. LR 56.1 Stmt. ¶ 73.) Though Plaintiff claims that Defendant eventually did change his schedule to one that prevented him from getting therapy in the late afternoon when he began to work at the jail in May 2004, (id.),*fn20 Plaintiff also admits that Defendant ultimately allowed him to continue with a schedule that enabled him to receive therapy in the afternoon, and that Plaintiff did complete his course of physical therapy. (Id. ¶ 68; Def. LR 56.1 Stmt. ¶ 67.)

D. Plaintiff's Role Post-Medical Leave

Upon his return to work in October 2003, Plaintiff was only required to work with "thins," which did not require him to lift a full desktop PC, but only involved lifting computer monitors that weighed fifteen to twenty pounds; Plaintiff was also responsible for identifying locations for time clocks, which did not involve any lifting. (Def. LR 56.1 Stmt. ¶ 60; Pl. LR 56.1 Stmt. ¶ 63.)*fn21 Plaintiff claims that his client title was reduced in November 2003 from Network and Server Services to Server Analyst, but he cites no evidence in support of the assertion that this change in his client title amounted to a "reduction." (Pl. LR 56.1 Stmt. ¶ 24.)

While Plaintiff was on medical leave, his old office had been reassigned along with other offices, and, upon his return, Plaintiff was temporarily assigned to a cubicle, though it is not apparent for how long Plaintiff worked there. (Def. LR 56.1 Stmt. ¶¶ 63-64.) Plaintiff's office location after he moved out of this temporary cubicle is not clear; Plaintiff admits in response to Defendant's statement of facts that he moved to an office beside that of Maria Strandquist, who was a Senior Consultant, (Id. ¶ 64), but Plaintiff nevertheless contends in his own statement of facts that, in May 2004, he was assigned to work in a cubicle among entry-level help desk staff. (Pl. LR 56.1 Stmt. ¶ 23.) Regardless of whether or not Plaintiff was assigned to work in a cubicle among help desk staff, Plaintiff admits that "he did not do help desk work." (Pl. LR 56.1 Resp. ¶ 61.) Plaintiff also agrees that all of Defendant's "consulting employees," which included Plaintiff, were required to handle "tickets" generated from a help desk software program that Defendant used. (Pl. LR 56.1 Stmt. ¶ 62.)

Believing that he had been improperly forced to take a leave of absence, Plaintiff filed a complaint with the U.S. Department of Labor ("DOL") no later than October 2003, claiming that Defendant had violated the Family and Medical Leave Act ("FMLA").*fn22 Plaintiff amended this complaint in November 2003, adding allegations that Defendant had not reinstated him to the same duties he held prior to his leave of absence. (Pl. Aff. ¶ 21.) On November 3, 2003, Plaintiff filed an application for worker's compensation benefits with the Illinois Industrial Commission. (Def. LR 56.1 Stmt. ¶ 69; Illinois Industrial Commission Application for Benefits, Tab O to Def. LR 56.1 Stmt.) The following day, he filed a charge of race and disability discrimination against Defendant with the Illinois Department of Human Rights ("IDHR") and the U.S. Equal Employment Equal Opportunity Commission ("EEOC"). (Def. LR 56.1 Stmt. ¶ 70; 11/4/03 IDHR Charge, Tab P to Def. LR 56.1 Stmt.) In this charge, Plaintiff complained that Defendant was paying him lower wages and bonus payments than it paid similarly-situated Caucasian employees. (11/4/03 IDHR Charge.) Plaintiff also claimed that he requested a reasonable accommodation for his back injury, but that Defendant forced him to take a three-month leave of absence, and that Defendant treated him differently than other Caucasian employees who have taken leaves of absence. (Id.) Further, Plaintiff alleged that he was subjected to different terms of employment upon his return from his leave of absence. (Id.) Plaintiff received a Notice of Right to Sue from the EEOC on June 2, 2004. (EEOC Notice of Right to Sue, Tab P to Def. LR 56.1 Stmt.)

E. Plaintiff's Work in 2004 and Alleged Insubordination

According to Plaintiff, during the early months of 2004, Henry O'Neal required Plaintiff to meet with him daily to submit an oral report of his progress on the time and attendance project. (Pl. LR 56.1 Stmt. ¶ 29.)*fn23 In early 2004, O'Neal also sent Plaintiff to install time and attendance software programs on the computers of hospital personnel. (Id. ¶ 31.) Plaintiff claims that during the early months of 2004, when he was performing such work, O'Neal falsely accused him of causing the computers he was working on to malfunction; Plaintiff does not explain the context in which O'Neal made this accusation. (Pl. LR 56.1 Stmt. ¶ 31; Pl. Aff. ¶ 27.)

In a February 20, 2004 e-mail, O'Neal wrote to Plaintiff listing certain work-related priorities. (2/20/04 E-mails, Tab Q to Def. LR 56.1 Stmt.) Plaintiff responded to O'Neal with an e-mail stating: "Also, You don't have the right to determine my job title, I though [sic] this was Mike's and Dan's right." (Id.) In a subsequent e-mail message to Howard (but not to Plaintiff), O'Neal commented that he did not understand Plaintiff's remarks because he had not mentioned Plaintiff's job title. (Id.; Howard Dep. at 7-8, Tab B to Def. LR 56.1 Stmt.) Sommers then e-mailed Howard, O'Neal, and Pike, noting that Plaintiff's reaction was "consistent with [Plaintiff's] level of frustration"; Sommers further characterized Plaintiff's reaction as "aggressive" and asked that O'Neal "continue as normal . . . [t]reat him no better, or no worse than you would anyone else." (2/20/04 E-mails.) On February 25, 2004, Plaintiff exchanged e-mails with O'Neal again regarding "make-up time" for work hours. (2/25/04 E-mails, Tab R to Def. LR 56.1 Stmt.) In this e-mail, Plaintiff wrote to O'Neal: "Again, You are not my manager. I was told by my manager that I work for you on projects. I have not been given anything in writing saying you are my manager, and if you try to get me to sign something saying you are my manager I will not do this." (Id.; Def. LR 56.1 Stmt. ¶ 72.)

On March 3, 2004, Pike wrote Plaintiff a letter as a result of the "various memos that [Plaintiff had] recently submitted to" Sommers, Howard, and O'Neal concerning his work assignments. (3/3/04 Letter, Tab S to Def. LR 56.1 Stmt.; Def. LR 56.1 Stmt. ¶ 73.) In this letter, Pike stated that "[a]s an employee of The Foster Group you are to take direction from the company's management personnel with respect to performing various duties, tasks, assignments, etc. This is the expectation for every employee hired by our company." (3/3/04 Letter.) Pike's letter further stated that "[i]t is considered an act of insubordination for an employee to refuse direction provided by management of The Foster Group or the designated individual assigned by the manager to provide direction to an employee to carry out various duties, tasks, assignments, etc." (Id.; Def. LR 56.1 Stmt. ¶ 73.) In an e-mail exchange on April 28, 2004, ...

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