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Mary P. Egan v. Timothy F. Geithner

September 28, 2011


The opinion of the court was delivered by: Marvin E. Aspen, District Judge:


Presently before us is a motion for summary judgment filed by Defendant Timothy F. Geithner, Secretary of the Treasury ("IRS"), seeking dismissal of the two remaining claims filed by Plaintiff Mary Egan. Egan alleges that the IRS discriminated against her on the basis of age, culminating in her termination. She also seeks review of the Merit Systems Protection Board's ("MSPB") ruling, which upheld the IRS' decision to discharge her. For the reasons set forth below, we grant the IRS' motion in its entirety.


As a preliminary note, the facts described herein are undisputed and culled primarily from the IRS' Local Rule 56.1 statements of fact and exhibits. For her part, Egan did not provide any additional statements of fact or a supporting memorandum of law, as required by Local Rule 56.1(b)(1)--(2). Nor did she respond to the IRS' statements in compliance with Local Rule 56.1(b)(3). Rather, Egan submitted a response to the IRS' statements that parrots her affidavit, the only other document she filed in opposition to the motion. (See Dkt. Nos. 63--64.)

Moreover, Egan's affidavit-her sole attempt at defending her claims-was not properly signed and filed. A declarant or affiant must personally sign a statement. For e-filing purposes, that original document should be scanned and then submitted to the court electronically. See Rule 56(e); N.D. Ill. Gen'l Order on Elec. Filing, Gen'l Order No. 2011-24, at 6--8 (July 6, 2011). Here, however, Egan's signature on her affidavit is not original but electronic ("/S/ Mary Egan"). We decline to sua sponte strike the affidavit as unsigned. See Magyar v. Saint Joseph Reg'l Med. Ctr.,544 F.3d 766, 770 (7th Cir.2008) (finding no abuse of discretion where district judge allowed affidavit signed by electronic signature, in part because opponent was not prejudiced); but see Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir. 2004) ("A court must not consider . . . an affidavit that fail[s] to meet the standards of Rule 56(e) when considering summary judgment."); Markel v. Bd. of Regents of Univ. of Wis., 276 F.3d 906, 912 (7th Cir. 2002) (rejecting unsigned affidavit). Nonetheless, we rely heavily on the IRS' well-supported statements of fact and consider Egan's affidavit only to the extent necessary. With that in mind, we briefly recount the basic facts.

Mary Egan was a revenue agent with the IRS and responsible for examining the tax returns of small businesses and self-employed individuals. Revenue agents work with some independence and, depending on the taxpayer at issue, often work in the field. The IRS' bases its performance reviews of agents on their efficiency, including their ability to prioritize and complete work in a timely fashion.

Egan's direct supervisor was Keith Roach. In his review for the December 2004 through November 2005 evaluations period, Roach identified several problems with Egan's performance. (See Def.'s Facts, Ex. B, 1/31/06 Review.) With respect to business results efficiency, Roach rated Egan's performance as unacceptable, the lowest rating possible. In particular, Roach found that most of Egan's cases were "overage," meaning that they had been pending for more than 270 days. Egan does not dispute that the majority of her cases were 300 to 500 days old and that she closed only two cases during that review period. (Resp. Def.'s Facts ¶¶ 10, 12.) Egan asserts that her cases became overage because of taxpayers' dilatory tactics and because her computer was not functioning properly. (Id. ¶¶ 7, 10.) Although the parties dispute the underlying rationale, they agree that the IRS disapproves of overage cases lingering in the audit process.

Roach also found in his review that Egan failed to prioritize her work, meet her own estimated deadlines, and maintain an organized work space. Roach testified that he addressed these problems-particularly Egan's overage cases-on several occasions. (Def.'s Facts, Ex. A, Hrg. Tr. at 19--20; see also 1/31/06 Review at 5 (summarizing requests for an uncluttered workspace).)

In March 2006, Roach issued Egan a detailed letter identifying numerous overage cases and prioritization complaints. (See Def.'s Facts, Ex. C, PIP Ltr.) At that time, Roach placed Egan under a Performance Improvement Period ("PIP"), which required her to close certain cases within 60 days. (Id. at 16.) In May 2006, Roach extended Egan's PIP for an additional thirty days, to June 21, 2006. Roach initially paired Egan with another IRS employee, Linda King, for coaching during the PIP, but this arrangement did not pan out. Accord to Roach, he then volunteered to work with Egan and met with her repeatedly and consistently for eighteen weeks of the nineteen-week PIP. (Hrg. Tr. at 47--49.) Egan denies that Roach provided any meaningful coaching or feedback.

At the end of the extended PIP, Egan had closed six of the eleven overage cases identified in the PIP letter. Egan contends that Roach is partially responsible for this failure to close all of the pending cases but she neither explains Roach's conduct and its impact on her efforts and timeframe, nor specifies which cases or how many were affected. (Resp. Def.'s Facts ¶¶ 32--33.) On October 31, 2006, the IRS issued Egan a proposed notice of removal, and she was discharged on March 21, 2007. (See Compl. ¶ 4.)

Egan challenged the IRS' decision to terminate her before the MSPB. The administrative law judge ("ALJ") presiding over that appeal ordered the parties to submit exhibit and witness lists prior to the hearing. Egan admittedly failed to timely comply with this order and was barred from presenting testimony other than her own at the hearing. (Resp. Def.'s Facts ¶¶ 37--39.) By written decision dated November 9, 2007, the ALJ affirmed the IRS' decision to terminate Egan.


Summary judgment is proper only when "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). A genuine issue for trial exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). This standard places the initial burden on the moving party to identify those portions of the record that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986) (internal quotations omitted). Once the moving party meets this burden of production, the nonmoving party "must go beyond the pleadings" and identify portions of the record demonstrating that a material fact is genuinely disputed. ...

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