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Atkinson v. SG Americas Securities, LLC

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

December 12, 2016




         Defendant SG Americas Securities, LLC (“SGAS”), filed a motion for summary judgment [154], arguing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law on the remaining three counts of plaintiff Anthony David Atkinson's complaint. This Court heard oral arguments on the motion on November 4, 2016. For the reasons stated below, this Court grants the motion.


         The following facts are taken as true and undisputed for purposes of ruling on the instant motion. As discussed below, plaintiff failed to respond to SGAS' Local Rule 56.1(a)(3) Statement of Undisputed Facts in compliance with L.R. 56.1(b)(3) and therefore the Court deems admitted the facts in SGAS' L.R. 56.1(a)(3) statement. L.R. 56.1(b)(3)(C).

         SGAS and its predecessor firms, including Newedge USA, LLC, employed David Atkinson from August 2002 until January 14, 2015. (SGAS' L.R. 56.1(a)(3) Statement of Undisputed Facts, Dkt. 157 at ¶1). SGAS is a futures commodity merchant that provides its customers with electronic trading software platforms, trade clearing services, and trading support. (Id. at ¶3). Between August 2002 and February 2013, Atkinson was an eSolutions Support Analyst or eTrading Support Analyst on the Trade Mitigation Team (“TMT”) in the eSolutions Department. (Id. at ¶4). TMT provides telephone support to external customers and internal SGAS traders, known as “business lines, ” to resolve issues with eTrading, such as online access to trading systems, confirmation of executed trades, and adjustments to customers' trading limits. (Id. at ¶5). Atkinson's work station was on the eSolutions floor in SGAS' Chicago office, which contained 35 to 40 other eSolutions employees. (Id. at ¶7). Each eSolutions team, including TMT and Administration, had its own dedicated area on the eSolutions floor. (Id.). The Administration team generally performs back-office software and eSolutions support functions, and typically does not deal directly with customers. (Id. at ¶8).

         1. Atkinson's Medical Leave and Return to Work

         In October 2011, Atkinson was hit by a car and was on medical leave due to his injuries, including permanent loss of hearing in his left ear. (Id. at ¶¶9-10). His physician released him to work without restrictions on December 1, 2011. (Id.). Atkinson successfully resumed his duties upon returning to work. (Id. at ¶11).

         Approximately three months later, in March 2012, Atkinson suffered a brain hemorrhage while on vacation, which required a second medical leave. On August 7, 2012, Atkinson's father emailed SGAS (then Newedge) to notify them that Atkinson “is doing quite well and would like to return to work soon, ” and asked what the company would require for him to return. (Id. at ¶13). The company proposed a return date of August 20, 2012, and stated that it would need a doctor's release stating “any special conditions or accommodations for Anthony [Atkinson]'s return to work, if any.” (Id.). Atkinson's father informed the company that August 20 was too soon. (Id. at ¶14). The company did not require Atkinson to return work. (Id.). On September 19, 2012, Atkinson's doctor sent SGAS a return to work release, stating that “Mr. Anthony David Atkinson may return to work for 6 hour days from 9/20/12 through 9/30/12 and full time thereafter.” (Id. at ¶15). The release did not specify any ongoing work restrictions or describe any hearing, speech, balance, or other disabilities. (Id.). SGAS requested Atkinson return to work as of October 1, 2012, which he did. (Id. at ¶12, 16).

         Prior to his return to work, Atkinson informed Human Resources representative Lisa Foster that his doctor would like him to start with 6-hour days at first, but he agreed to return full-time on October 1, 2012. (Id. at ¶17). Foster responded, “If you need to work a shorter day at first because of your doctor's recommendation it is totally fine. Let's see how it goes. We are glad to have you back.” (Id. at ¶18). Atkinson returned to work on October 1 in the same position as an eSolutions Support Analyst with TMT at the same pay without taking any shortened days. (Id.).

         After Atkinson's return to work, SGAS began receiving complaints from several external customers and business line representatives about Atkinson's handling of their calls to the eSolutions' support line. (Id. at ¶21). Vendors and exchanges also complained about interactions with Atkinson, causing his then-manager Greg Stephens to require Atkinson to seek permission before contacting vendors. (Id. at ¶22). SGAS received more complaints about Atkinson's performance after his return from medical leave than it had received before he went on leave. (Id. at ¶23). The complaints continued during the fourth quarter of 2012 and into 2013. (Id.). SGAS regularly records support calls for quality assurance for review in case of complaints. (Id. at ¶24). Stephens reviewed recordings of some of Atkinson's support calls to determine if the complaints were well-founded and he found that the complaints were valid. (Id.). The complaints included Atkinson not providing requested information to clients and failing to escalate complaints to a manager when he was unable to answer. (Dkt. 158-1, Stephens Tr. at 182-83).

         2. Performance Evaluation and Reassignment

         SGAS generally conducts its performance evaluations for the preceding year in January. (Id. at ¶26). In January 2013, Stephens delivered Atkinson's annual performance evaluation for 2012. (Id.). The review took into account Atkinson's performance issues since his return to work, provided some criticism, and gave him an overall rating of 2 (out of 5)- “Meets Some but Not All Expectations.” (Id.). In February 2013, management assigned Atkinson to a project on the Administration team because they believed it would be a better fit since the project did not involve direct customer contact, was less time-sensitive, and was less stressful. (Id. at ¶27). Atkinson's title of eSolutions Support Analyst and pay did not change with the assignment on the Administration team. (Id. at ¶28). The Administration team manager, Jason Sutton, gave Atkinson more discrete “static data” analysis tasks on the project because Atkinson was having some performance difficulties on his new team in February and March 2013. (Id. at ¶29).

         In August 2013, Atkinson was permanently assigned to the Administration team and his title changed to eSolutions Static Data Analyst. (Id. at ¶30). He remained in this position until leaving SGAS in January 2015. (Id.). According to Sutton, Atkinson was better able to perform the duties of this position, although he did identify some areas for improvement in 2013 and 2014. (Id. at ¶31). Atkinson admitted in his deposition that Sutton was “a fair man” and that there “probably” was some legitimacy to Sutton's critiques. (Id.).

         In November 2014, Newedge announced its merger with SGAS effective in early January 2015. (Id. at ¶74). All Newedge employees were required to sign a form SGAS employment agreement if they intended to continue their employment after the merger. (Id.). Employees who failed to sign the document would be deemed to have resigned. (Id.). Atkinson refused to sign the employment agreement because he did not agree with the arbitration clause, among other provisions. (Id. at ¶75). SGAS agreed to waive the arbitration clause. (Id.). Atkinson still refused to sign the agreement. (Id.). SGAS therefore considered Atkinson to have resigned as of January 14, 2015. (Id. at ¶76). As a result of his resignation, Atkinson did not receive any severance benefits. (Id.). Three other Newedge employees also refused to sign the employment agreement. (Id. at ¶78). All three were deemed to have resigned and none received severance packages. (Id.).

         3. Requests and Accommodations

         In March 2012, Atkinson's work station was in the far left corner of the TMT area, where he had his left ear towards the wall. (Id. at ¶33). Prior to his return from medical leave in October 2012, his previous corner workstation had been dismantled and was no longer available to anyone. (Id. at ¶34). Upon his return to work, Atkinson chose a workstation near his prior location that was closer to other TMT and Administration team members. (Id. at ΒΆ35). Greg Stephens, the TMT supervisor in October 2012, was not aware of ...

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