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Shuster v. People's Energy Corp.

January 8, 2008

PATRICIA SHUSTER, PLAINTIFF,
v.
PEOPLE'S ENERGY CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

Plaintiff, Patricia Shuster ("Shuster"), believes that she was terminated from her job because she was a 46-year-old woman and because she filed a charge of discrimination with the Equal Employment Opportunity Commission. She filed a three count complaint in this court alleging sex and age discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), as well as retaliation under both statutes. Defendants, People's Energy Corporation and North Shore Gas Company ("NSG") (collectively, "defendants"), have now moved for summary judgment on all three claims. Dkt. No. 26. For the following reasons, their motion will be granted and this case will be dismissed with prejudice and terminated.

I. Facts

Patricia Shuster ("Shuster") is a woman who worked for North Shore Gas Company ("NSG") for almost 19 years: from June 2, 1986 until her involuntary termination on May 6, 2005. Defendants' L.R. 56.1(a)(3) Statement of Undisputed Material Fact (hereinafter "DS"), at ¶¶ 2, 4; Plaintiff's L.R. 56.1(b) Statement of Uncontested Facts (hereinafter "PS"), at ¶ 1. She was 46 years old at the time of her termination. Id. NSG is an "employer" as that term is defined by Title VII and the ADEA. DS, at ¶ 3.*fn1

Shuster's final position with NSG was "Fitter Over 4," a position which required her to maintain and repair gas pipes, meters and appliances. DS, at ¶ 6. Fitter Over 4 is the highest classification of fitter positions at NSG and is attained through a progression of time and successively higher positions as set forth in the collective bargaining agreement that applied to Shuster's employment. DS, at ¶ 8; PS, at ¶¶ 1, 2. Throughout the period of her employment with NSG, Shuster was a member of a collective bargaining unit. DS, at ¶ 7. From 1993 until approximately October, 2004, Shuster was directly supervised by various first-line supervisors, who were in turn supervised by John Kleczynski ("Kleczynski"), NSG's former Manager of Customer Service. DS, at ¶ 9. Shuster also reported indirectly to Calixto Arroyo ("Arroyo"), NSG's Operations Manager. DS, at ¶ 9. At the time of her termination, Shuster had two direct supervisors: Mark Ehman ("Ehman") and Tracy Gilliland ("Gilliland"). DS, at ¶ 10. Ehman became Shuster's supervisor in the summer of 2001 and Gilliland in 2004. Id., Ex. 1 to Shuster's Statement of Additional Material Facts (Shuster Deposition), at 67. Neither Ehmen nor Gilliland had the authority to terminate Shuster's employment. DS, at ¶ 10.

In or about May, 2002, Shuster underwent a random drug test in the course of her employment with NSG. DS, at ¶ 11. She tested positive for cocaine use. Id. She neither contested the results of the test nor requested to be re-tested. Id. In lieu of termination for the positive test, on or about May 10, 2002 Shuster signed and entered into a "last chance agreement" (the "LCA") with NSG, also known as "Conditions for Continued Employment." DS, at ¶ 12. All Fitters Over 4 are required to submit to random drug tests and must comply with a last chance agreement if they fail a test. DS, at ¶ 13; PS, at ¶ 15.

The LCA provides, among other things, that Shuster would (a) observe all terms of a rehabilitation program, (b) obtain a written after-care plan from a treatment provider which would be approved by NSG's medical review officer and comply with all terms of the plan, and (c) comply with all terms of the medical review officer's return-to-duty letter. DS, at ¶ 14. It also states, above Shuster's signature, "It shall be my [the employee's] obligation to observe these conditions, and the Company does not undertake to ensure my compliance. Violation of any of these conditions will result in my discharge." Exhibit B to Defendants' Statement of Facts (Plaintiff's Responses to Defendants' Request for Admissions, Exhibit A (Shuster's LCA)).

The terms and conditions in Shuster's LCA set forth the standard policy for NSG employees who fail a random drug test. DS, at ¶ 17. Furthermore, termination for violation of an LCA is a "longstanding past practice" of NSG. DS, at ¶ 35. In fact, the defendants are unaware of any employee who has violated a last chance agreement within the five years preceding the date of Shuster's termination that was not terminated. DS, at ¶ 63 (referencing Exhibit I to Defendants' Statement of Facts (defendants' answers to plaintiff's first set of interrogatories (listing eleven terminated employees, ten being male (the exception being Shuster) and four being under 40))).*fn2

Shuster was on leave for outpatient treatment for approximately 30 days before returning to work at NSG. DS, at ¶ 19. She obtained a written after-care plan and a return-to-duty letter on or about June 17, 2002. DS, at ¶ 15. Shuster's return-to-duty letter, which she signed, set forth a number of compliance requirements, including that for a period of five years she would "abstain from the use of illicit drugs, alcohol, and prescription drugs that have not been prescribed by a physician." DS, at ¶ 16. Following her return, she was subjected to more frequent drug and alcohol testing and her work was monitored more closely. DS, at ¶¶ 19, 20.

Sometime in 2003, Shuster suffered a work-related injury to her knee, for which she filed a workers compensation claim. DS, at ¶ 21. Following her return to work, NSG placed Shuster on "light duty" for a period of time. Id. "Light duty was defined pursuant to negotiations between NSG and Shuster's union, and consisted of any task that fell within an employee's medical restrictions. Id.

On January 15, 2005, Shuster filed a charge of discrimination with the Equal Employment Opportunity Commission ("the E.E.O.C.") against "Peoples Energy North Shore Gas" alleging that a one-day and a three-day suspension she received were the result of sex and/or age discrimination. DS, at ¶ 22. The E.E.O.C. dismissed this charge and issued Shuster a notice of right to sue on March 28, 2005. DS, at ¶ 23. Shuster failed to initiate a federal lawsuit within 90 days of receiving that right to sue. Id.

Shuster believes that she was discriminated and retaliated against in various ways over the course of her employment for being a woman, for being over the age of 40, for filing a workers compensation claim and for filing her first charge of discrimination with the E.E.O.C. She has testified that Ehmen generally treated her badly, as did other supervisors, including Brad Lewis, Gilliland, and Kleczynski. DS, at ¶¶ 48, 58-60. Beginning at the time that Ehmen became her supervisor in 2001 and continuing through the day she was terminated, he always assigned her more work than the other fitters. DS, at ¶ 48; Shuster Deposition, at 37.*fn3 After she tested positive for cocaine use in 2002, Ehmen began giving Shuster so much work that she could not take lunches or other breaks. Shuster Deposition, at 48. Shuster knew of other fitters who also felt that they had too much work and could not take breaks because of their workload. DS, at ¶ 48.*fn4

Shuster has testified about various other instances of what she believes was discrimination or retaliation. For example, sometime prior to January, 2005, she was reprimanded for losing her identification badge. DS, at ¶ 55. She testified that a male employee who lost his badge, Charlie Walker, was not reprimanded, but later admitted that she does not know whether Walker received any discipline or not. Id. Second, following her knee injury and return to work on light duty status, Ehmen assigned Shuster to scrape paint off of a stairwell, which Shuster believes was contrary to her doctor's instructions. DS, at ¶ 46. Two male employees who were also on light duty were allowed to perform office work. DS, at ¶ 47. Shuster does not know what those employees' medical restrictions were. Id. Third, Shuster testified that she was fired for failing a drug test while certain male employees were not. DS, at ¶ 51.*fn5 She does not know whether any of those employees were subject to a last chance agreement. Id.*fn6 Fourth, Shuster was harassed for having a messy truck, while she observed that certain male fitters had similarly messy trucks but did not observe them being harassed. DS, at ¶ 54, Ex. 2 to Shuster's Statement of Additional Material Facts (Shuster's Affidavit), at ¶ 9. Fifth, Shuster was accused of being late to work when she was not late. DS, at ¶ 49. On at least one occasion when she received a verbal warning for being late, Shuster observed two male employees arrive after she did, but the men were not disciplined. Shuster Dep., at 39. Sixth, Shuster was passed over for a promotion that she wanted in December of 2002 or January of 2003 and the position she wanted went to a man.*fn7 DS, at ¶ 56. Shuster does not know what that man's education, experience, performance history or disciplinary history was. Id. Finally, Shuster was not allowed to attend a retirement luncheon, refused a requested vacation day, and berated for not completing a job when two male Fitters over 4 had also failed to complete it but were not yelled at like she was. DS, at ¶ 49; PS, at ¶ 5.

Shuster does not differentiate between which of the above actions against her were evidence of discrimination versus retaliation. She believes that any and all adverse actions taken by NSG against her were the result of discrimination, retaliation for filing a workers compensation claim, or retaliation for filing her 2005 discrimination ...


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