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Curtis v. Costco Wholesale Corp.

United States Court of Appeals, Seventh Circuit

November 24, 2015

KEITH CURTIS, Plaintiff-Appellant,
COSTCO WHOLESALE CORPORATION, et al., Defendants-Appellees

Argued September 25, 2015.

Page 216

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 3432 -- Samuel Der-Yeghiayan, Judge.

For Keith Curtis, Plaintiff - Appellant: Timothy J. Coffey, Attorney, Chicago, IL.

For Costco Wholesale Corporation, Gail Hinds, Defendants - Appellees: William F. Dugan, Attorney, Seyfarth Shaw LLP, Chicago, IL.

Before WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.


Page 217

Bauer, Circuit Judge.

Plaintiff-appellant, Keith Curtis (" Curtis" ), appeals the district court's order granting summary judgment in favor of defendants-appellees, Costco Wholesale Corporation (" Costco" ) and Gail Hinds (" Hinds" ), on all of Curtis's causes of action. These include retaliation in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., (" FMLA" ), a FMLA interference claim, discrimination based on a violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (" ADA" ), and a claim for failure to accommodate under the ADA. For the following reasons, we affirm.


Costco hired Curtis in 2001. Curtis was promoted to optical manager by Hinds, the general warehouse manager at Costco's Orland Park location, in 2008. In 2011, Curtis was still working as an optical manager under the supervision of Hinds. Hinds and Costco's assistant warehouse manager, Leslie Ingram, counseled Curtis in March and May 2011, regarding customer complaints about him. Because of these complaints, Hinds began monitoring

Page 218

the optical department more carefully and determined that Curtis was failing to sufficiently schedule workers within his department, as was Curtis's duty as optical manager.

In September 2011, Curtis requested and was given a medical leave under the FMLA due to stress and anxiety. Curtis returned to work on November 1, 2011, but his work performance did not improve. Costco management counseled Curtis numerous times over the next six months about the insufficient scheduling of optical department employees and other Costco policy violations. Due to these performance issues, Curtis was placed on a 90-day performance improvement plan (" PIP" ) in April 2012.

In early May 2012, Jan Jalowiec (" Jalowiec" ), an employee working under Curtis in the optical department, informed the Costco managerial staff that she was concerned that Curtis was going to " scam" the company. She said Curtis told her he intended to take a medical leave to secure his managerial rate of pay and position in the event of demotion. Costco determined that, by this comment, Curtis had violated its Manager Standard of Ethics. On May 19, 2012, Curtis was demoted from optical manager to cashier. Two days later, Curtis requested and was given a second FMLA leave.

On June 6, 2012, Curtis submitted a request to be transferred to the Merrillville, Indiana, Costco store. Costco refused to transfer Curtis while he was on his FMLA leave. In January 2013, Curtis gave notice that he was released to work by his doctor, but only to a store other than the one in Orland Park. In July 2013, an optical position became available at the Costco in Merrillville, Indiana, and Curtis was given the position. He currently works in that position at that location.

In his complaint filed May 7, 2013, Curtis alleges four causes of action against Costco and Hinds: retaliation and interference, both in violation of the FMLA, and discrimination based upon a disability and failure to accommodate, both in violation of the ADA. Costco and Hinds moved for summary judgment on all of Curtis's causes of action. The district court granted the motion. The district court found that Curtis had failed to comply with Northern District of Illinois Local Rule 56.1 by submitting an insufficient response to Costco's separate statement of material facts.


A. Local Rule 56.1

We first determine whether the district court erred in finding Curtis failed to comply with the requirements of Northern District of Illinois Local Rule 56.1. The rule requires the party moving for summary judgment to file and serve a " statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." N.D.Ill. R. 56.1(a)(3). Further, the party opposing the motion for summary judgment is required to file and serve " a concise response to the movant's statement that shall contain ... a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." N.D.Ill. R. 56.1(b)(3)(B).

" When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion." Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. ...

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