United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN, UNITED STATES DISTRICT JUDGE
SG Americas Securities, LLC (“SGAS”), filed a
motion for summary judgment , 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.
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.
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).
Atkinson's Medical Leave and Return to Work
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
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,
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.).
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).
Performance Evaluation and Reassignment
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).
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.).
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.).
Requests and Accommodations
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 ¶35). Greg Stephens, the TMT supervisor
in October 2012, was not aware of ...