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Simkus v. United Airlines

United States District Court, N.D. Illinois, Eastern Division

September 13, 2016

Paul Simkus, Plaintiff,
United Airlines, Defendant.


          Honorable Thomas M. Durkin United States District Judge

         Paul Simkus alleges that his employer, United Airlines, retaliated and discriminated against him because he has attention deficit hyperactivity disorder (“ADHD”) and other ailments, in violation of the Americans with Disabilities Act. R. 38. United has moved for summary judgment. R. 106. For the following reasons, United's motion is granted.

         Legal Standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court considers the entire evidentiary record and must view all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To defeat summary judgment, a nonmovant must produce more than “a mere scintilla of evidence” and come forward with “specific facts showing that there is a genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).


         I. Local Rule 56.1

         Simkus filed this action pro se, R. 1, but four months later hired an attorney to represent him. R. 20. While represented, Simkus agreed to dismiss with prejudice claims hostile work environment, failure to accommodate, and ERISA claims he made in his pro se complaint, conceding that they were beyond the scope of his EEOC charge. See R. 27. Simkus's attorney then drafted first and second amended complaints on Simkus's behalf, R. 29; R. 38, and drafted a brief in opposition to United's motion to dismiss the second amended complaint. R. 34; R. 40. On April 30, 2014, the Court denied United's motion to dismiss the discrimination and retaliation claims at issue in this motion for summary judgment, but granted United's motion to dismiss Simkus's claim for intentional infliction of emotional distress. R. 43; R. 70. A little more than three months later on August 7, 2014, the Court granted Simkus's attorney's motion to withdraw his representation. R. 51.

         Along with its motion for summary judgment, United filed the notice for pro se litigants required by the Local Rules, informing Simkus of his obligations in responding to a motion for summary judgment. R. 112. Simkus confirmed that he had received that notice at a hearing on November 6, 2015. R. 113.

         Although Simkus timely filed a brief opposing United's motion, R. 114, Simkus failed to properly respond to United's statement of undisputed material facts as required by Local Rule 56.1. United asks the Court to deem Simkus to have admitted United's statements of facts, R. 115 at 3, because Local Rule 56.1(b)(3)(C) provides, “All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.” The Court agrees that Simkus has admitted United's factual allegations by failing to properly contest them. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). United's summary judgment motion is granted on this basis alone. The Court is cognizant of the fact that Simkus filed his opposition brief pro se. But, as the Court discusses below, the facts described in United's statement are supported by competent evidence (primarily Simkus's deposition testimony), and Simkus's brief does not cite any contrary facts that are supported by competent evidence. Thus, even accepting Simkus's brief as a proper response to United's statement of material facts, Simkus has failed to demonstrate that there is a genuine dispute as to any material fact regarding United's liability.

         II. Simkus's Claims

         Simkus has been employed by United since 1983, and he has held the position of Facilities Maintenance Mechanic for United at O'Hare Airport since April 2009. R. 109 ¶ 2. Simkus testified that he has been diagnosed with ADHD, anxiety disorder, depression, panic attacks, and sleep disorders. Id. ¶ 4. Simkus last worked for United in August 2012, and has been on “extended illness status” (“EIS”) since then. Id. ¶ 3. United employees are automatically placed in EIS when they have been absent from work for more than 16 consecutive calendar days. Id.

         Between 2008 and 2009, prior to the events directly relevant to this lawsuit, Simkus filed four charges of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”), which culminated in a lawsuit in this district filed on August 20, 2010, alleging race, age, and disability discrimination. R. 109 ¶ 15. The lawsuit was dismissed with prejudice for want of prosecution. See Simkus v. United Air Lines, Inc., No. 10 C 5274, 2013 WL 140455 (N.D. Ill. Jan. 11, 2013).

         Simkus filed another lawsuit in this district on March 29, 2011, alleging violations of the Sarbanes-Oxley Act, and disability discrimination. R. 109 ¶ 16. That lawsuit was dismissed for failure to state a claim. See Simkus v. United Air Lines, Inc., No. 11 C 2165, 2012 WL 3133603 (N.D. Ill. July 31, 2012).

         Simkus also filed four complaints against United with the U.S. Occupational Safety and Health Administration (“OSHA”), alleging retaliation under the Sarbanes-Oxley Act and other federal statutes. R. 109 ¶ 17. As of the completion of briefing on this motion, the later three of those complaints remained pending. Id. (The record does not reveal what happened to Simkus's first OSHA complaint.)

         Shortly before Simkus filed his second federal complaint (11 C 2165), he began an EIS leave of absence. That EIS lasted from March 7, 2011 until July 5, 2011. R. 109 ¶ 9. Simkus was again on EIS from August 25, 2011 until June 12, 2012. Id.

         Simkus alleges that when he returned from EIS on June 12, 2012, United subjected him to a number of adverse employment actions. R. 38 ¶ 21. Simkus alleges that due to this alleged harassment he stopped coming to work on August 14, 2012 and went on another EIS leave of absence effective September 13, 2012. R. 109 ¶ 74. He has not returned to work since. Id.

         Simkus filed the discrimination charge with the EEOC that precipitated this case on December 4, 2012. Id. ΒΆ 18. He received a right to sue letter from the EEOC on March 15, 2013, R. 1 at 10, and filed this case on June 13, 2013. R. 1. The operative complaint includes claims for ...

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