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Ronald A. Ferguson v. Exelon Nuclear

March 30, 2011


The opinion of the court was delivered by: Judge Ronald A. Guzman


Pro se plaintiff Ronald A. Ferguson ("Ferguson") has sued defendant Exelon Nuclear*fn1 ("Exelon") for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and age discrimination and retaliation under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621--634.*fn2 Before the Court is Exelon's motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons provided herein, the Court grants the motion.


Unless otherwise noted, the following facts are uncontested.*fn3 On February 21, 1990, Ferguson began working for Exelon at the Braidwood Station. (Def.'s LR 56.1(a)(3) Stmt. ¶ 5.) The last position he held was Senior Maintenance Electrician A in the Electrical Maintenance Department, which is part of the bargaining unit represented by Local 15 of the International Brotherhood of Electrical Workers. (Id. ¶ 6.) Exelon outlines its standards for employee conduct and its discipline policy in its Employee Standards of Conduct ("ESOC"). (Id. ¶ 7.)

Ferguson's history at Exelon includes past disciplinary actions. In 2004, he served a five-day suspension because he admittedly violated ESOC Rule 2 when he refused to participate in an "Out-of-the-Box" evaluation and further yelled at his supervisor, which included the use of profanity. (Def.'s LR 56.1(a)(3) Stmt. ¶¶ 8-12.) Another incident occurred on November 11, 2005, when Ferguson grabbed Ted Melcher, another employer, by his shirt and shoved him. (Id. ¶ 13.) The ESOC states that a violation of ESOC Rule 26, i.e., "[a]ny act of physical aggression or righting while on the job or in connect with Company business," may result in discharge. (Id. ¶ 15.) Ferguson conceded that he violated the ESOC, (id. ¶ 16), but instead of firing him, Exelon and Ferguson entered into a Last Chance Agreement, which stated, in part, that "any future verbal or physical altercations by Mr. Ferguson will be deemed proper cause for termination and will result in his immediate dismissal from the company," (id. ¶ 19). Ferguson testified that he did not believe he was placed on the Last Chance Agreement because of his age; rather, he was placed on it solely because of his misconduct involving Melcher. (Id. ¶ 22.)

During the week prior to September 5, 2008, Ferguson and Mendez had a conflict over a job assignment because Mendez requested that Ferguson perform a job with equipment that had not been properly inspected for safety by an engineer. (Pl.'s Resp. Def.'s Mot. Summ. J. ("Pl.'s Resp.") ¶ 27; Ferguson Dep. 23--27, May 18, 2010.) Mendez became "belligerent" when Ferguson objected to the assignment, and Ferguson eventually completed the assignment. (Ferguson Dep. 25.) Although Ferguson contends that only this one conflict led to his complaining to Exelon's Human Resources ("HR") department on September 5, 2008, (Pl.'s LR 56.1(b)(3)(A) Stmt. ¶ 27), he admits that Mendez repeatedly picked on him until he finished his job assignments for the week leading up to his HR Complaint. (Ferguson Dep. 30.)

On September 5, 2008, Ferguson visited the HR office with his supervisor, Mike Mendez, to complain that Mendez was harassing him. (Dillon Aff. ¶¶ 14-15, July 27, 2010.) Sandy Malone was the HR employee present, and she states in her affidavit that Ferguson said Mendez was "f***ing harassing him" and making comments when Ferguson walked by him. (Def.'s LR 56.1(a)(3) Stmt. ¶¶ 24-25; Malone Aff., July 2010, Ex. 1, Malone Witness Stmt., Sept. 5, 2008.) Although Ferguson made Malone uncomfortable at the meeting with his complaints of harassment, at no time did Ferguson reference age as the basis of the harassment.

(Def.'s LR 56.1(a)(3) Stmt. ¶ 25.) After Ferguson's visit to the HR office, Exelon's Braidwood management sent him home pending an investigation into his behavior. (Dillon Aff. ¶ 15.)

The investigation, which included interviewing three employee-witnesses about Ferguson's recent conduct at the time, resulted in Ferguson's discharge decision on October 10, 2008. (Def.'s LR 56.1(a)(3) Stmt. ¶ 34.) Dan Burgess, an engineer at Exelon, stated that he heard Ferguson swearing and raising his voice at others on many occasions. (Dillon Aff., Ex. B3, Burgess Stmt., Oct. 8, 2008.) He further stated that Ferguson has an anger problem, and that Ferguson took issue with working the back shift, which, although a legitimate gripe, he dealt with inappropriately. (Id.) Tom Bessman, a first line supervisor at Exelon at the time, also stated that he heard Ferguson swearing and raising his voice at others at work. (Dillon Aff., Ex. B4, Bessman Stmt., Oct. 8 , 2008.) Grady Jones, a manager at Exelon at the time, likewise stated that he witnessed Ferguson being loud, interrupting job briefs and cursing. (Dillon Aff., Ex. B5, Jones Stmt., Oct. 8 , 2008.) Mendez did not participate in Exelon's discharge decision, but he did provide a written statement describing Ferguson's conduct as inappropriate and insubordinate in the week leading up to Ferguson's HR complaint. (Dillon Aff. ¶ 19.) In his statement, Mendez states that on September 4, 2008, Ferguson told him: "They should kill all Puerto Ricans." (Dillon Aff., Ex. B2, Mendez Stmt., Sept. 12, 2008.) This greatly offended Mendez. (Id.) However, none of the three interviewed witnesses, Burgess, Bessman, or Jones, heard Ferguson make this statement. (Dillon Aff., Exs. B3-B5.)

On October 15, 2008, Ferguson received Exelon's letter of termination. (Def.'s LR 56.1(a)(3) Stmt. ¶ 34.) The letter stated that the decision was based on his overall disciplinary record and his recent behavior toward his supervisor and other employees, which violated Company policy, the ESOC, and his Last Chance Agreement. (Id.) Ferguson testified that Richard Gadbois, the Electrical Maintenance Director, selected Ferguson for termination because of his Last Chance Agreement and because he was eager to fire someone-in Ferguson's words, he "wanted everybody to be afraid of him." (Id. ¶ 39; Ferguson Dep. 126-27.) Ferguson could not provide any other motive that Gadbois may have had. (Def.'s LR 56.1(a)(3) Stmt. ¶ 39.)

On November 10, 2008, Ferguson filed a charge with the Equal Employment Opportunity Commission ("EEOC") challenging his discharge solely on the grounds of age discrimination and retaliation under the ADEA. (Def.'s LR 56.1(a)(3) Stmt. ¶ 40; Def.'s Ex. A7, EEOC Charge.) After receiving a right-to-sue letter from the EEOC, Ferguson filed a complaint in federal court. (Compl. at 1, 6.)


"The court shall grant summary judgment 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). To support whether a fact can be or is in genuine dispute, a party must either "(A) cit[e] to particular parts of materials in the record, including depositions, . . . affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials; or (B) show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

Moreover, the court "construe[s] all facts and draw[s] all inferences in the light most favorable to the non-moving party." Srail v. Vill. of Lisle, 588 F.3d 940, 943 (7th Cir. 2009). "The existence of merely a scintilla of evidence in support of the non-moving party's position is insufficient; there must be evidence on which the jury could reasonably find for the non-moving ...

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