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Otis R. Nicholson, Jr v. Allstate Insurance Company

January 23, 2012


The opinion of the court was delivered by: Judge Feinerman


Otis R. Nicholson, Jr., is no stranger to employment discrimination litigation. Over the past eight years, Nicholson has filed three lawsuits against three former employers, one Equal Employment Opportunity Commission ("EEOC") charge against another former employer, and six lawsuits against supervisors or co-workers. Doc. 69 at ¶¶ 74-80. In this lawsuit against what appears to be his most recent former employer, Allstate Insurance Company, Nicholson asserts an broad array of claims, alleging discrimination, retaliation, and harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Allstate has moved for summary judgment on all of Nicholson's claims. Because Nicholson has not adduced evidence sufficient to survive summary judgment, the motion is granted.


The facts are set forth as favorably to Nicholson as the record and Local Rule 56.1 allow. Nicholson is a fifty-two years old African-American male who suffers from diabetes and sleep apnea. Allstate hired Nicholson in December 2007 as a project manager consultant in its Information Technology ("IT") department. Project manager consultants have both a direct supervisor, known as a project management partner, and an assignment-specific supervisor, known as a delivery manager. In January 2009, Nicholson's co-worker Debra "Dee" Payne, an African-American female, was promoted and became his project management partner. Having been told about problems with Nicholson's performance, Payne took actions that Nicholson described as "exerting herself," such as pulling him into meetings, standing behind him with her arms folded while he was working, and speaking with IT Systems Director John Krinitsky about him. Doc. 69 at ¶ 31; Doc. 69-3 at 96-97. Payne coached Nicholson throughout 2009 to address, among other things, his failure to handle issues appropriately, his lack of understanding of project management processes and procedures, and his failure to thoroughly and accurately document on Allstate's database the status of his projects. Doc. 69 at ¶¶ 32-33; Doc. 69-6 at ¶¶ 5-6. Payne became "violent" and "verbally abusive" towards Nicholson during one coaching session, physically threatening him by jumping up with a pen in her hand and angrily shouting. Doc. 68 at 4.

From late 2008 through early 2009, Kelly Coomer was one of Nicholson's delivery managers. In April 2009, Coomer e-mailed Nicholson about the way he handled a problem with her project, specifically referencing his failure to bring the problem to her attention. The e-mail opened by saying, "What the heck is going on." Doc. 77-1 at 15. In a May 2009 e-mail to Payne, Coomer expressed concern about Nicholson's performance, stating that he "just doesn't get it." Doc. 74 at 26. Coomer also spoke to Krinitsky about her concerns. Nicholson found Coomer's actions to be "demeaning and disrespectful." Doc. 69-3 at 77.

Allstate employees receive two performance reviews per year. During mid-year reviews, employees discuss their performance with their project management partner and may receive a performance review rating. At year-end reviews, employees must receive a performance review rating. From best to worst, the available ratings are: exceptional, outstanding, successful, fair, and unacceptable. In 2008, Nicholson received a "fair" rating at his mid-year review and a "successful" rating at his year-end review. Doc. 69 at ¶¶ 39-40. In June 2009, Nicholson received a "fair" rating at his mid-year review, which Payne conducted. Id. at ¶¶ 41-42.

During Nicholson's tenure at Allstate, IT department policy allowed employees to work from home one day per week if they maintained a performance rating of "successful" or higher. After receiving a "fair" rating at his 2009 mid-year review, Nicholson sought permission to continue working from home as an accommodation for his disabilities. Doc. 69 at ¶ 47; Doc. 69-3 at 100. Nicholson explained that the accommodation, by eliminating his commute, would help him on the days he had sleep problems caused by his sleep apnea. Allstate repeatedly asked Nicholson for medical documentation to support the proposition that he had to work from home for medical reasons. Doc. 69 at ¶ 48; Doc. 69-3 at 101-04; Doc. 69-4 at ¶ 10. Nicholson gave Allstate four different documents addressing his medical conditions, but none stated that those conditions required that he be allowed to work from home. Doc. 69 at ¶¶ 48-49; Doc. 69-3 at 110. Because Nicholson did not provide the medical documentation Allstate requested, his request to work from home was denied. Doc. 69 at ¶ 50; Doc. 69-4 at ¶ 11.

On July 13, 2009, Nicholson contacted Allstate's conflict resolution call center, complaining that Payne had subjected him to race- and sex-based discrimination and harassment since January 2009. Allstate human resources employee Juan Cortez investigated the complaint. Nicholson later reported to Cortez that by September 2009, "some of the issues had been addressed and that things were appearing to change for the better." Doc. 69 at ¶ 46; Doc. 69-3 at 120.

On September 14, 2009, Nicholson filed an EEOC charge alleging that Allstate discriminated against him based on his race, sex, age, and disabilities. The charge claimed that Allstate "subjected [Nicholson] to different terms and conditions of employment, including, but not limited to, not being allowed to work from home and having [his] work scrutinized[,] . a poor performance evaluation[,] . [and s]imilarly situated younger, non-Black, female, non-disabled employees [being] treated more favorably." Doc. 69-2 at 19. Nicholson's charge also claimed that Allstate retaliated against him for lodging his internal complaint about discrimination and harassment. Ibid. On October 21, 2009, the EEOC reached a no-cause finding and issued a right-to-sue notice to Nicholson. Doc. 69 at ¶ 63; Doc. 69-15 at 4.

On October 22, 2009, Nicholson received a letter from Allstate informing him that he would be effective December 31, 2009, due to a department-wide reduction-in-force ("RIF"). Doc. 69 at ¶ 61; Doc. 69-4 at ¶ 13. Allstate implemented the RIF to reduce operating expenses in response to fiscal pressures and a decline in work for project managers. Doc. 69 at ¶¶ 52-53; Doc. 69-4 at ¶ 12. Allstate used several criteria to determine who would be terminated. Doc. 69 at ¶ 54; Doc. 69-4 at ¶ 13. Employees with the skills needed for current and upcoming work demands were retained. Doc. 69 at ¶ 54; Doc. 69-4 at ¶ 13. Within the IT department, project manager consultants who had the skills necessary for integration and vendor engagement projects were retained. Doc. 69 at ¶ 55; Doc. 69-4 at ¶ 14. Project manager consultants who did not have that skill set were retained or terminated based on their most recent annual performance review rating, and then based on their years of service to Allstate. Doc. 69 at ¶ 54; Doc. 69-4 at ¶ 13.

Allstate terminated fifty-four employees as part of the RIF, including Nicholson and four other project manager consultants. Doc. 69 at ¶ 58; Doc. 69-4 at ¶ 16. Nicholson was selected for termination because he did not possess the skill set necessary for integration and vendor engagement work, and because he had the fewest years of service (1.78 years) of the remaining project manager consultants rated "successful" in their most recent annual review. Doc. 69 at ¶ 56; Doc. 69-4 at ¶ 15. Of the four other terminated project manager consultants, one was a white non-disabled female and three were white non-disabled males. Doc. 69 at ¶ 58; Doc. 69-4 at ¶ 16. Thirty project manager consultants were retained, of whom twenty-six were over forty years old, ten were men, and four were African-American. Doc. 69 at ¶ 59; Doc. 69-4 at ¶ 17.

Nicholson filed this lawsuit on January 29, 2010. On October 25, 2010, Nicholson filed a second EEOC charge, which largely duplicates the first EEOC charge but adds a claim based on his termination. Doc. 69 at ¶ 65; Doc. 69-17 at 2. To date, the EEOC has not concluded its proceedings on the second charge, and no right-to-sue notice has been issued. For purposes of summary judgment, however, Allstate expressly waived any exhaustion issues arising from Nicholson's failure to receive a right-to-sue notice for the only EEOC charge alleging a wrongful termination. Doc. 68 at 6 n.11; see Volovsek v. Wis. Dep't of Agric., Trade & Consumer Prot., 344 F.3d 680, 687 (7th Cir. 2003) (holding that the employment discrimination defendant "waived" any argument that the plaintiff failed "to exhaust her administrative remedies"); Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000) (the requirement that an employment discrimination plaintiff exhaust administrative remedies before the EEOC is subject to "the doctrines of waiver, estoppel, and equitable tolling") (internal quotation marks omitted). Accordingly, Nicholson's wrongful termination claims will be considered on the merits.


Nicholson alleges that Allstate: (1) discriminated against him because of his race, sex, and age; (2) retaliated against him for complaining about discrimination; (3) subjected him to a hostile work environment; and (4) failed to provide reasonable accommodations for his disabilities. Before addressing these claims, the court notes that Allstate, in moving for summary judgment, provided Nicholson with the notice to pro se litigants required by Local Rule 56.2. Doc. 70. Despite receiving that notice, Nicholson failed to comply with the Local Rules in numerous respects. His Local Rule 56.1(b)(3) violations are addressed in detail below. His summary judgment brief (Doc. 74 at 1-14) cites directly to raw record materials, not to the Local Rule 56.1 statements. See Jorden v. United States, 2011 WL 4808165, at *1 (N.D. Ill. Oct. 11, 2011) (citing cases); Byrd-Tolson v. Supervalu, Inc., 500 F. Supp. 2d 962, 966 (N.D. Ill. 2007) ("facts are properly presented through the framework of the Rule 56.1 statements, and not through citation in the briefs to raw record material"). And his brief is extremely disorganized and difficult to follow. All that said, the court has endeavored to view Nicholson's substantive arguments in the best possible light, although Nicholson's failures to adduce pertinent evidence under Local Rule 56.1 will not be excused. See Cichon v. Exelon Generating Co., 401 F.3d 803, 809-10 (7th Cir. 2005) ("Specifically as to Local Rule 56.1, [w]e have . repeatedly held that a district court is entitled to expect strict compliance with [Local] Rule 56.1.") (alterations in original) (internal quotation marks omitted).

I. Race, Sex, and Age Discrimination Claims

Nicholson alleges that Allstate discriminated against him based on his race in violation of Title VII and § 1981, based on his sex in violation of Title VII, and based on his age in violation of the ADEA. To survive summary judgment on the Title VII and § 1981 claims, Nicholson must adduce evidence that would allow a reasonable jury to find that Allstate's decision to subject Nicholson to an adverse employment action was motivated by his race or (for the Title VII claim only) by his sex. See Hossack v. Floor Covering Assocs. of Joliet, Inc., 492 F.3d 853, 860 (7th Cir. 2007) ("An unlawful employment practice is established when a plaintiff demonstrates that a protected characteristic, such as sex, was a motivating factor for an employment decision."); Friedel v. City of Madison, 832 F.2d 965, 966 n.1 (7th Cir. 1987) ("while section 1983 and Title VII reach both sex and race discrimination, claims of sex discrimination are not cognizable under section 1981"). "Discrimination claims under both Title VII and § 1981 are analyzed in the same manner." Patton v. Indianapolis Pub. Sch. Bd., 276 F.3d 334, 338 (7th Cir. 2002). For his ADEA claim, Nicholson must adduce evidence that would allow a reasonable jury to find that but for his age, Allstate would not have subjected him to an adverse employment action. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009); Barton v. Zimmer, Inc., 662 F.3d 448, 455 n.3 (7th Cir. 2011).

The only adverse employment action at issue here is Nicholson's termination. Allstate's Local Rule 56.1(a)(3) statement asserts that the following fact is undisputed: "Except for his termination, Plaintiff does not claim that he suffered any 'tangible job consequence' as a result of the conduct attributed to Allstate managers and co-workers of which he complains." Doc. 69 at ¶ 67. Nicholson denies this asserted fact. Doc. 77 at ¶ 67. Local Rule 56.1(b)(3)(B) requires Nicholson to support that denial with evidence. See Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 689 (7th Cir. 2000) ("An answer that does not deny the allegations in the numbered paragraph with citations to supporting evidence in the record constitutes an admission.") (internal quotation marks omitted). Nicholson's pro se status does not excuse him from complying with that rule. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel"); Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 F. App'x 642, 643 (7th Cir. 2011) ("Though courts are solicitous ...

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