The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiff Gilbert Galinato filed a complaint alleging discrimination and retaliation by his employer the U.S. Department of Housing and Urban Development. The government moves for summary judgment on all claims. This Court heard oral arguments in this matter on June 21, 2012. Having considered the submissions of the parties, the arguments made in court, this Court grants the government's motion for the reasons stated below.
Before addressing the merits of the motion for summary judgment currently under consideration, the Court will first address Galinato's compliance with Local Rule 56.1. LR 56.1(b)(3) states that each party opposing a motion for summary judgment shall serve and file responses to each of the numbered paragraphs in the moving party's statement of undisputed material facts and in the case of disagreement, include specific references to the parts of the record, and other supporting materials. Here, Galinato filed his own statement of additional facts in accordance with LR 56.1 (b)(3)(C), but failed to comply with LR 56.1 (b)(3)(A) and (B). Failure to comply with LR 56.1(b) does not result in an automatic grant of summary judgment, but the Court may accept as true all the material facts set forth in the moving party's LR 56.1 statement of facts. See FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005). Accordingly, the Court accepts as true all facts put forth by the government, which are not specifically contradicted by Galinato with citations to the record.
The following facts are undisputed. Gilbert Galinato (Asian Filipino, over age 40) began working for the U.S. Department of Housing and Urban Development ("HUD") in 1990 as a GS-5 single-family loan assistant. Galinato was promoted in 1994 as a GS-7 single-family loan specialist and was promoted later that year to a GS-9. In 1998, Galinato was promoted to a GS-12 position as a public housing revitalization specialist. Galinato currently holds that position. Galinato's current position has a promotion potential only to GS-12. If Galinato wanted to be promoted to a GS-13 position or higher, Galinato had to apply for such a position and be selected after competing with other applicants. Galinato last applied for a GS-13 position in 2000; he was not selected for the position.
In July 2007, Galinato filed an EEOC complaint alleging discrimination on the basis of his race, national origin, age, and disability, and retaliation because he was not promoted between 1992 and 2000, and in 2007.*fn1 Galinato claims that he was treated worse than other employees who started working with him at HUD in 1990 because they have since been promoted to GS-13 and he has not. Galinato also claimed that he was discriminated on the basis of disability because he suffers from seizures and convulsions. Galinato claims that he was discriminated against on the basis of this disability when his supervisor assigned him to inspect houses in 1994 or 1995. However, Galinato never asked his supervisor to be excused from inspecting houses because of his seizures. Galinato's supervisor was never made aware of any medical restrictions. Moreover, Galinato never requested an accommodation.
Galinato signed an affidavit in October 2007 as part of his EEO complaint. In the affidavit, Galinato questioned why management did not stop his supervisors from discriminating against him. Galinato further stated: "by avoiding to confront them (supervisors) doesn't it mean they are tolerating them to perpetuate the same mistakes until there is a brawl, murder, or death? ... without anybody to talk to or counseling could make a person go crazy and may commit murder or commit suicide." Based on these remarks in his affidavit, HUD placed Galinato on administrative leave until a psychological evaluation could be completed.
A HUD contract psychiatrist conducted an evaluation of Galinato and determined that his statements were threats warranting concern. The psychiatrist recommended that Galinato not return to work until he participated in a treatment program and until he was released to return to work by his own therapist.
Following the evaluation, Galinato met with his supervisors and an employee from human resources. At the meeting, Galinato made remarks that he did not believe in justice anymore. Galinato also discussed the recent shooting of the family of a federal judge and stated that the shooting was justified because the judge had previously called the man responsible crazy. After the meeting, Galinato was placed on indefinite administrative leave until he was released to return to work. Galinato was ultimately released to return to work on March 29, 2008, and he returned to work some time after April 14, 2008.
In March of 2008, Galinato amended his EEOC complaint to include a retaliation claim based on his supervisor's decision to place him on administrative leave pending a psychological evaluation due to the threatening statements made in his EEOC affidavit and the threatening remarks made to supervisors at the January 2008 meeting. On March 30, 2009, the Equal Employment Opportunity Commission denied Galinato's claims in his 2007 EEOC complaint. Galinato appealed the decision, which was denied after reconsideration by the EEOC on February 25, 2010. On June 2, 2010, Galinato filed his complaint with this Court alleging discrimination based on race, national origin, age, and disability as well as retaliation.
A party is entitled to summary judgment if all of the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When considering a summary judgment motion, the Court construes the facts and all reasonable inferences in the light most favorable to the non-moving party. Abdullahi v. City of Madison, 423 F. 3d 763, 773 (7th Cir. 2005). The party who bears the burden of proof on an issue may not rest on the pleadings or mere speculation, but must affirmatively demonstrate that there is a genuine issue of material fact that requires a trial to resolve. Celotex v. Catrett, 477 U.S. 317, 324 (1986).
The government moves for summary judgment on all claims. First, the government argues that Galinato's discrimination claims based on alleged actions taken during his employment between 1992 and 2000 are untimely because Galinato did not report the alleged discriminatory conduct to an EEOC counselor within the 45 day period prescribed in 29 C.F.R. § 1614.105(a)(1). Prior to filing a complaint in federal district court, an aggrieved federal employee, who believes he or she has been subjected to discrimination on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult an EEO counselor. 29 C.F.R. § 1614.105(a). Accordingly, "federal employees must notify an EEO counselor of any discriminatory conduct within forty-five days of its occurrence in order to later assert a Title VII claim based on that conduct." Williams v. West, 1998 WL 904722 (7th Cir. 1998). Here, it is ...