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Gunty v. Exelon Nuclear Security

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

April 18, 2017

BETH GUNTY, Plaintiff,
v.
EXELON NUCLEAR SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          JORGE L. ALONSO United States District Judge

         Before the Court is defendant's motion for summary judgment [49], which is granted for the reasons explained below.

         BACKGROUND

         Plaintiff, Beth Gunty, brought this action against her former employer, Exelon Nuclear Security, LLC (“Exelon”), for unlawful discrimination on the basis of disability and sex, in violation of the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).

         LOCAL RULE 56.1

         Before reciting the facts, the Court must discuss Local Rule 56.1. “The purpose of Rule 56.1 is to have the litigants present to the district court a clear, concise list of material facts that are central to the summary judgment determination. It is the litigants' duty to clearly identify material facts in dispute and provide the admissible evidence that tends to prove or disprove the proffered fact.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015). The Seventh Circuit has “consistently upheld district judges' discretion to require strict compliance” with the Rule. Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015).

         Plaintiff failed to comply with Rule 56.1 in several respects. First, throughout her response to Exelon's Rule 56.1(a)(3) statement of material facts, plaintiff states that Exelon's assertions are undisputed or partially disputed but “incomplete” and then goes on to state her own multiple additional facts. That is an impermissible tactic that serves only to clutter plaintiff's response. “Using such evidence to directly dispute the Defendant's facts is fine, but to be considered as facts affirmatively demonstrating why summary judgment should be denied, the Plaintiff's evidence must also appear in [her] statement of additional facts under the local rules. Putting this evidence in the statement of additional facts is necessary because the Defendant has no mechanism to ‘reply' to the Plaintiff's responses to the Defendant's facts and thereby dispute the contentions raised in the Plaintiff's responses.” Anderson v. Iacullo, 963 F.Supp.2d 818, 821-22 (N.D. Ill. 2013) (ellipsis, citation, and some brackets omitted). The Court has therefore disregarded all additional assertions of fact contained in plaintiff's response to Exelon's Rule 56.1(a)(3) statement that do not directly dispute Exelon's facts. The proper vehicle for asserting additional facts is plaintiff's Rule 56.1(b)(3)(C) statement, which plaintiff submitted.[1]

         Second, plaintiff sometimes “disputes” an assertion yet her response is not germane, and she instead provides additional unresponsive facts that do not support a dispute and/or which the cited evidence does not support. In those instances (among them paragraphs 17, 22, 23, 24, and 41), the Court has deemed Exelon's statements admitted. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (failure to respond as mandated by the local rule results in an admission, and a district court is not required to “wade through improper denials and legal argument in search of a genuinely disputed fact”) (internal quotation marks and citation omitted); Burrell v. United Parcel Serv., Inc., 163 F.Supp.3d 509, 514 (N.D. Ill. 2016).

         Third, in a few instances, plaintiff fails to cite evidence that supports the assertions set forth in her Local Rule 56.1(b)(3)(C) statement or cites evidence that does not support the assertions (for example, paragraph 46), so the Court has disregarded those assertions.

         MATERIAL FACTS

         Gunty was employed as an armed security officer at an Exelon affiliate's Braidwood Nuclear Generating Station in Braceville, Illinois from February 2004 until her employment was terminated in December 2012. For the first four years or so of this employment, plaintiff's employer was Wackenhut Corporation, which had a contract to provide security at the generating station until Exelon took over security functions and became plaintiff's employer in 2008. At the time her employment was terminated, plaintiff's formal job title was “senior security officer.”

Gunty gave birth to a child on August 31, 2011 and returned to work about a month later. On April 28, 2012, at the beginning of her shift, Gunty became “very angry for no good reason.” (ECF Nos. 93 & 94, Dep. of Beth Gunty 46.)[2] She told her supervisor that she was “feeling just not the same” as she normally felt and that she wanted to talk to the nurse at work. (Id. at 46-47.) Plaintiff then visited the nurse, Kelli Unger. Gunty told Unger that she was feeling short-tempered, irritable and anxious, and discussed her family- and work-related stress. After their conversation, Gunty was sent home and issued a mandatory referral to Exelon's Employee Assistance Program (“EAP”), which entailed a mandatory leave of absence. Gunty began taking leave under the Family Medical Leave Act (“FMLA”) and receiving short-term disability benefits.

         As part of the EAP process, plaintiff received mental-health counseling from Linda Gjerde, a licensed clinical social worker. Plaintiff's first appointment with Gjerde was on May 2, 2012, at which time Gjerde recommended that plaintiff have at least one more counseling session with Gjerde and that plaintiff seek a psychiatric evaluation. On June 11, 2012, plaintiff was evaluated by a psychiatrist, Leah Ustas, M.D., who prescribed her medication for depression and anxiety. Thereafter, throughout the summer, plaintiff continued to see Gjerde and Dr. Ustas, whose SOAP notes[3] regarding plaintiff's treatment were communicated to staff at Optum Health (which contracted with Exelon to provide EAP services), and were in turn communicated to staff in Exelon's Occupational Health Services department (“OHS”), which administers FMLA and disability claims.

         On September 19, 2012, Rebecca Peed, a Senior Human Resources Generalist for Exelon, sent Gunty a letter stating, in part, the following. As of July 20, 2012, Gunty had exhausted all of her FMLA leave. Peed had not received any notification that Gunty's medical providers had released her to return to work, with or without reasonable accommodations, so Gunty would no longer hold the position of armed security officer. In the event that Gunty was released to return to those duties and was capable of performing the essential functions of the position with or without reasonable accommodations, Gunty would be considered for “open and available” armed security officer positions. Exelon had determined, based on the information provided to OHS by Gunty's doctor, that Gunty was no longer eligible for short-term disability benefits. If Gunty was interested in other jobs with an Exelon company, Exelon would give her a sixty-day job-search period during which she could seek and apply for open and available positions. During this period, Gunty would remain off work without pay and would be required to use vacation, holidays, and other paid time off until such time off was exhausted. If Gunty wanted to “search for open and available positions, ” she was to let Peed know “as soon as possible, ” but if Gunty did not contact Peed, no steps would be taken to assist her in seeking other positions with an Exelon company. If Gunty did not obtain a position by the expiration of the sixty-day period, her employment would be terminated at that point. (ECF No. 72-6.)

         According to Peed and as Gunty testified at her deposition, Gunty did not contact Peed or the Human Resources department to seek help in obtaining an alternative position. (ECF No. 52-9, Aff. of Rebecca Peed ¶ 10; Gunty Dep. 236.)[4] Plaintiff instead consulted her sister-in-law, Patricia Gunty (“Patricia”), who worked as a secretary for an Exelon company and had access to Exelon's internal job-posting website, to get information about postings for open positions.

         On October 29, 2012, plaintiff's counsel sent Peed a letter that stated in pertinent part: “We represent your employee Beth Gunty concerning her medical and disability claims. She requires accommodation. Beth has applied for other non-security positions. Alternatively, she requires an extended paid leave of absence during the period of her disability.” (ECF No. 72-21.) Peed then searched for open positions for which Gunty might have been qualified.[5] Peed determined that the only available position for which Gunty could qualify was an Office Service Specialist (“OSS”) position, a clerical job in the Engineering department. (Patricia also notified plaintiff about this position.) OSS jobs involve entering data, editing text, and general clerical work, so typing skills are required. The description for the OSS position stated that the applicant would have to successfully complete the “SASS” test, which assesses clerical skills, ...


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