United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
On September 17, 2013, Rajesh Tank filed a Second Amended Complaint against T-Mobile USA, Inc. ("T-Mobile"), alleging one count of violating his rights under the Telecommunications Act of 1996, 47 U.S.C. § 201 et seq. ("TCA"). T-Mobile now moves for summary judgment of the Second Amended Complaint. The Motion has been fully briefed.
Local Rule 56.1(a) requires the party moving for summary judgment to provide "a statement of material facts as to which the moving party contends there is no genuine issue" and to cite to the relevant admissible evidence supporting each fact. Local Rule 56.1(b)(3)(B) then requires the nonmoving party to admit or deny each factual statement proffered by the moving party and to concisely designate any material facts that establish a genuine dispute for trial. Martin v. Gonzalez, 526 F.Appx. 681, 682 (7th Cir. 2013). Under Local Rule 56.1(b)(3)(C), the nonmoving party may file a statement of additional facts, and the moving party may submit a concise reply under Local Rule 56.1(a)(3). To the extent that a purported fact is merely a legal conclusion, it is disregarded. See Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371 (7th Cir. 2008).
A litigant's failure to respond to a Rule 56.1 statement, or to dispute the statement without "specific references to the affidavits, parts of the record, and other supporting material, " results in the court's admitting the uncontroverted statement as true. Banks v. Fuentes, 545 F.Appx. 518, 520 (7th Cir.2013). Similarly, responses containing argumentative denials or extraneous information do not properly dispute a fact. See Graziano v. Village of Oak Park, 401 F.Supp.2d 918, 937 (N.D. Ill. 2005).
T-Mobile is a telecommunications carrier with its headquarters in Bellvue, Washington. (Def.'s SOF ¶ 3.) Tank served as T-Mobile's Vice President of Engineering and Operations from September 25, 2006, until his termination on August 4, 2010. (Def.'s SOF ¶ 5.) During this time, Tank worked in T-Mobile's office in Downers Grove, Illinois, and reported to Senior Vice President of Engineering and Operations Neville Ray. ( Id. )
In September of 2007, a T-Mobile employee complained to the Human Resources department that Tank had engaged in "abrasive, unprofessional, demoralizing, and accusational (sic)" conduct, prompting an investigation. (Def.'s SOF ¶¶ 6-7.) The investigation turned up a perception of favoritism exhibited by Tank to certain employees. (Def.'s SOF ¶ 8.) In light of Tank's leadership position, Ray placed Tank under a corrective action coaching plan. (Def.'s SOF ¶ 9.)
On May 20, 2010, one of T-Mobile's managing attorneys sent an email to the Senior Vice President of its Legal Department, after receiving an invoice from outside counsel that had been retained to attempt to obtain a position for Tank on the Illinois Science and Technology Commission. (Def.'s SOF ¶ 10.) The attorney questioned whether "paying outside counsel $535 an hour to help achieve this might be a dubious use of T-Mobile resources." ( Id. ) Just two days later, T-Mobile received an anonymous email, purportedly from one of its vendors, alleging that Tank had inappropriate relationships with his indirect reports; allowed a banned contractor to work on a T-Mobile project under a false name; and "single-handedly destroyed company morale and driven away some of the best, most competent persons [the vendor] had a chance to work with in the wireless industry." (Def.'s SOF ¶ 11.) As a result of these allegations, T-Mobile's Corporate Investigations team opened an investigation. (Def.'s SOF ¶ 12.)
Ryan Messinger was an investigator for Corporate Investigations. (Def.'s SOF ¶ 14.) During the course of Messinger's investigation, he accessed certain of Tank's Customer Proprietary Network Information ("CPNI"). (Def.'s SOF ¶ 15.) CPNI includes information regarding the quantity, technical configuration, type, destination, location, and amount of use of telecommunications service provided to a customer by a telecommunications provider, as well as information contained in the bills for the service received by the customer. (Def.'s SOF ¶ 16.) On May 27, 2010, June 1, 2010, and July 7, 2010, Messinger accessed Tank's wireless account information through T-Mobile's record system, Samson, which automatically displays account balance information. (Def.'s SOF ¶ 17; Pl.'s SOF ¶ 17.) Account balance information is CPNI. ( Id. ) In addition to the automatic display of account information, other types of CPNI - like call data records ("CDRs"), showing which numbers are dialed and the duration of the calls - can be accessed. (Pl.'s SOF ¶¶ 4, 6.) There is no way to electronically track specifically which CPNI has been viewed when an account is accessed on Samson. (Pl.'s SOF ¶ 7.)
Messinger interpreted the allegations prompting the investigation to include concerns that Tank was misusing T-Mobile-owned telephones by distributing them without authorization, known as "downward distribution." (Def.'s SOF ¶ 18.) However, none of the allegations against Tank asserted misuse of company phones or devices. (Pl.'s SOF ¶¶ 11, 14.) Messinger claims to have accessed Samson to determine which numbers were associated with Tank's account, but does not recall ever obtaining that information. (Def.'s SOF ¶ 18.)
After the investigation, Messinger prepared an investigation report and a policy violations report that substantiated the allegations that Tank demonstrated favoritism among employees, made questionable use of T-Mobile funds, and allowed a banned contractor to work on T-Mobile projects. (Def.'s SOF ¶¶ 20-21.) Based on the investigation's results, Tank was terminated. (Def.'s SOF ¶ 23.)
Summary judgment is appropriate when there remains "no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); See Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012). The party seeking summary judgment must first identify those portions of the record that establish there is no genuine issue of material fact. U.S. v. King-Vassel, 728 F.3d 707, 711 (7th Cir. 2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To survive such a showing, the nonmoving party must "present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Tri-Gen Inc. v. Int'l Union of Operating Eng'rs, Local 150, AFL-CIO, 433 F.3d 1024, 1030-31 (7th Cir. 2006) (citing Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995)). Opposition to summary judgment requires more than a scintilla of evidence or some metaphysical doubt. Nat'l Inspection Repairs, Inc. v. George S. May Int'l Co., 600 F.3d 878, 882 (7th Cir. 2010) (citations omitted). The evidence must be such "that a reasonable jury could return a verdict for the nonmoving party." Wells v. Coker, 707 F.3d 756, 760 (7th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
When considering a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010) (citations omitted). The court does not make credibility determinations or weigh conflicting ...