United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge
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.
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).
Local Rule 56.1
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.
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.
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.
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.
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).
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).
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.)
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.
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.
filed the discrimination charge with the EEOC that
precipitated this case on December 4, 2012. Id.
¶ 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 ...