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Arthur A. Smith v. Levy Security Corporation

May 10, 2012

ARTHUR A. SMITH, PLAINTIFF,
v.
LEVY SECURITY CORPORATION, DEFENDANT.



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

OPINION AND ORDER

Plaintiff Arthur A. Smith filed suit against Levy Security Corporation, alleging age discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and disability discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"),*fn1 42 U.S.C. § 12101 et seq.*fn2 Before the court is Levy's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the motion [#43] will be granted.*fn3

BACKGROUND*fn4

I. Smith's Employment With Levy

Smith worked for Levy as a door ambassador at Evanston Hospital from April 24, 2006 until his termination on December 29, 2006. Beginning in July 2006, Michael Potter was the corporate director of public safety assigned to Evanston Hospital. Justin Dodson was the assistant director of public safety, and he reported directly to Potter. Dodson was Smith's supervisor.

Johnnie Robinson was another door ambassador at Evanston Hospital. He and Smith were often scheduled to work at the same time, and they had ongoing disputes about relieving each other from breaks. Smith and Robinson complained about each other to Dobson, who concluded, based on the nature of the complaints and his own observation of the situation, that both employees were sometimes intentionally late in providing relief to the other. Because of the frequent complaints, Dobson prepared a written schedule outlining break and shift times for Robinson and Smith.

Smith was hospitalized on November 8, 9, and 10, 2006. When he returned to work on Monday, November 13, Smith gave Potter a note from his doctor that stated, "Art Smith may return to work on Monday 11/13/06. He needs to sit frequently and be able to use [the] restroom frequently." (Amend. Compl. Ex. C.) Neither Potter nor Smith gave the note to Dodson.

Shortly after Smith returned to work, Potter told him that he could use the restroom whenever he needed and that he did not need to request permission to take bathroom breaks.

Dodson and the other supervisors, on the other hand, indicated that Smith still needed to request relief from another door ambassador before he could go to the bathroom.

On December 5, 2006, Dodson distributed a memorandum outlining new break reporting procedures for all door attendants and dispatch officers. (Def.'s Ex. J.) The policy required door attendants to inform dispatch officers of breaks and report the nature and duration of each break, including bathroom breaks. (Id. ¶¶ 5--7; Dodson Dep. at 61.) Sometime thereafter, Smith complained about Dodson's policy to Potter and said that he was not able to use the bathroom whenever he needed. Potter brushed Smith off, and told him to talk to Dodson about the issue first.*fn5

On December 7, 2006, Dodson prepared an employee action form asserting that Smith had been eating while on duty. (Def.'s Ex. K.) The next day, Dodson prepared an employee action form asserting that Smith had failed to relieve Robinson for his lunch break. (Def.'s Ex.

L.) The December 8, 2006 form states that Smith had been verbally counseled by Porter on December 7, 2006, for his failure to relieve Robinson, and that Smith's subsequent conduct was "indicative of an unacceptable behavior pattern by Arthur Smith." (Id.) The December 7 and December 8 forms state that Smith received "counseling/discussion" as a result of his infractions.

Dodson prepared another employee action form on December 13, 2006 that asserted that Smith had failed to relieve Robinson for a lunch break. (Def.'s Ex. M.) The form states that "[a]ny further disobedience by Smith will result [in] further disciplinary action up to and including discharge from employment." (Id.) The form states that Smith received a "written warning" as a result of his conduct. (Id.) Sometime between December 1 and December 13, 2006, Dodson prepared another employee action form because Smith was sitting while on duty.

Smith complained about the employee action forms to Potter, who decided to investigate them before they were formally issued and placed in Smith's file. (Dodson Dep. at 78.)

At some other time, Dodson prepared an employee action form stating that Smith had been publicly disrespectful and unprofessional during a telephone call with Dodson. (Def.'s Ex. I.) Although the form indicates that it was presented to Smith and that he refused to acknowledge the discipline, Smith denies that he was ever presented with this employee action form. He notes that the footer at the bottom of the document indicates that it was not printed until December 26, 2006, over three weeks after it was allegedly signed by Dodson. (See id.) The form states that Smith received "counseling/discussion" as a result of his misconduct. (Id.)

II. The December 14, 2006 Meeting and Smith's Termination

Smith, Dodson, and Potter met on December 14, 2006 to discuss the employee action forms. During the meeting, Smith told Potter that he felt that he was being treated unfairly based on the series of disciplines. Smith said that it was unfair to discipline him for sitting while on duty because his doctor's note stated that he should be able to sit frequently. Potter retracted the employee action form for sitting while on duty. Smith also requested Potter to retract the discipline for eating while on duty, but Potter refused. Potter explained that Smith's doctor's note did not say that Smith needed to eat while ...


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