United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. SHAH, UNITED STATES DISTRICT JUDGE.
Robert Crum brings this action against his former employer,
defendant Advocate North Side Health Network, for age
discrimination, retaliation, and a hostile work environment
under the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621 et seq. Advocate moves for summary
judgment on Crum's claims. That 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).
A genuine dispute as to any material fact exists if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party seeking summary judgment has the burden of establishing
that there is no genuine dispute as to any material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A court must view all facts and reasonable inferences
in the light most favorable to the non-moving party. Roh
v. Starbucks Corp., 2018 WL 663093, at *2 (7th Cir.
Crum worked as a Public Safety Officer for Advocate Illinois
Masonic Medical Center.  ¶¶ 1-2. During the period of
Crum's employment that is relevant to this case, Lee
Matthews was Crum's supervisor. Id. ¶ 2.
Crum and Matthews were both born in 1953. Id. ¶
has a progressive disciplinary policy, which describes the
bases for discipline and the various levels of discipline.
Id. ¶ 4. Level 1 and 2 Corrective Actions are
warnings that are “active” for six months,
meaning that if an employee on one of those levels receives
another corrective action, then that new corrective action
will be deemed to be at the next highest level. Id.
Level 3 is a final warning, and it is “active”
for one year; if an employee is disciplined within one year
of receiving a Level 3, then that employee may be terminated.
Id. The policy includes a “Just Culture
Decision Matrix, ” which helps managers to make fair
decisions in disciplining employees. Id.
Advocate has an Associate Conflict Resolution program, which
allows an employee to submit certain workplace concerns for
resolution, such as a challenge to a corrective action.
Id. ¶ 7. First, the employee is encouraged to
resolve the matter by conferring with his manager.
Id. If the situation is not resolved, then the
employee must contact a Human Resources Professional within
seven calendar days. Id. At that point, the
unresolved issues may be addressed under one of five
different “tracks” or methods of resolution.
Id. One of these tracks involves facilitated
discussions between the employee, his manager (or the
manager's superior), and a Human Resources Professional.
Id. If the issue is still unresolved after having
been submitted to one of these five tracks, then the employee
may formally request either mediation or arbitration.
Crum's Employment History
19, 2015, Matthews gave Crum a Level 1 Corrective Action
Id. ¶ 5; see also [52-1] at 276, 280.
The CAN stated that Crum used the department radio to
broadcast rude and discourteous comments about another public
safety officer on April 24, 2015, in violation of
Advocate's policies.  ¶ 5; see also
[52-1] at 280. At his deposition, Advocate asked Crum if he
recalled using the radio in April 2015 to criticize another
officer; Crum testified: “I recall talking over the
radio but not - not this incident. It was just the opposite
of the way that he got this written.” [52-1] at 40-41,
153:16-154:4. When Advocate followed up by asking what Crum
did recall, he said: “I don't - I
don't remember the incident.” Id. at 41,
22, 2015, Matthews gave Crum a Level 2 CAN, which stated that
Crum slept while on duty and that he failed to communicate
with fellow public safety officers.  ¶ 10; see
also [52-1] at 300, 304. Matthews concluded that Crum
engaged in such behavior after Matthews reviewed relevant
video footage and conducted interviews with relevant staff.
 ¶ 11. Then, on September 22, 2015, Matthews gave
Crum a Level 3 CAN, which stated that Crum failed to properly
screen a patient's property for contraband. Id.
¶ 19; see also [52-1] at 375; [52-5] at 108.
Matthews concluded that Crum engaged in such behavior after
Matthews reviewed video footage and conducted interviews with
staff.  ¶ 20. Per advice from Advocate's
Associate Relations Specialist, Robert Favaro, Matthews
applied Advocate's Just Culture Decision Matrix to
Crum's case and Matthews decided to give Crum a Level 3
CAN for the incident, instead of terminating Crum at that
time. Id. ¶ 21; [52-5] at 2, ¶ 2.
used Advocate's Associate Conflict Resolution program to
object to all three of the CANs he received. 
¶¶ 6, 13, 22. Pursuant to this program, Crum met
with Matthews, Favaro, and the Administrator of Finance on
two separate occasions-first to discuss his concerns about
the Level 1 CAN, and next to discuss his concerns about the
Level 2 CAN. Id. ¶ 8, 13. Ultimately, the
finance administrator decided to uphold both CANs.
Id. ¶¶ 8, 13. With respect to his Level
3 CAN, Crum met with Matthews and Favaro to discuss his
objections, id. ¶ 22, and after that meeting, Matthews
decided to uphold the Level 3 CAN, [52-5] at 8, ¶ 35.
with Advocate's reconsideration of his disciplinary
actions, Crum pursued arbitration through Advocate's
Conflict Resolution program.  ¶ 24. Crum wished to
arbitrate all three of his CANs, but Favaro decided to narrow
the subject of the arbitration to Crum's Level 3 CAN,
since the first two were over six-months old, thereby
rendering them inactive under Advocate's policy.
Id. The arbitration did not occur because Crum did
not submit the required forms. Id. ¶ 27;
see also [52-5] at 10, ¶¶ 43-46.
Crum maintains that the incident involved in the Level 1 CAN
“happened just the opposite of the way that Matthews
wrote it down.”  ¶ 61. In other words, it was
the other officer and not Crum who displayed rude and
discourteous behavior. Id. Although Crum does not
believe that he was rude, he does admit that he used the
radio to broadcast a comment about the other officer
sleeping. Id. As for the Level 2 CAN, Crum says that
Advocate relied on an unsubstantiated report by a security
guard that Crum was sleeping and that the image that the
guard supposedly took of Crum does not look like Crum nor
does it look like a sleeping person. Id.
¶¶ 63-64. With respect to the Level 3 CAN, Crum
says he was at home and not working when the patient was
improperly screened and was able to sneak a box cutter into
the facility. Id. ¶ 65. Crum points to
surveillance video of him working during his midnight shift.
Id. Such evidence, however, does not prove that Crum
was at home and not working earlier in the day, when the box
cutter escaped detection. Crum's reliance on statements
by the nurse who authored a report about the incident is
improper, see Id. ¶¶ 66-67; the
nurse's statements are inadmissible hearsay. The same is
true of Crum's reference to conversation he overheard two
staff members having about the incident. Id. ¶
March 6, 2016, the Chicago Police Department arrested Crum
because a fellow public safety officer had called the police
alleging that he felt threatened by Crum.  ¶ 28;
see also [52-4] at 11, ¶ 45;  ¶ 42.
Matthews was not on-site during the incident, and he did not
direct anyone to call the police, nor did he request that the
police arrest Crum.  ¶ 28. Due to company policy,
Advocate suspended Crum during the investigation into his
Id. ¶ 29. After the investigation concluded,
Advocate did not discipline Crum; instead, Advocate
reinstated Crum and after some delay due to an
“oversight, ” Advocate granted Crum his back pay
for the duration of his suspension. Id. ¶¶ 30-31.
months before the arrest, Matthews rated Crum as
“Approaching Expectations” on his performance
evaluation because of Crum's “performance
issues.” Id. ¶ 34; see also
[52-4] at 12-13, ¶ 58. Several weeks after his arrest,
Crum met with Matthews and the Director of Human Resources,
Bill Corbin, to discuss his continuing poor performance. 
¶ 36. Matthews and Corbin presented a “Memo of
Concern” to Crum and instructed Crum to obey its
instructions since he was already on a Level 3 CAN.
2016, Crum asked Matthews for a shift transfer within
Advocate's Public Safety Department. Id. ¶
79. Crum also tried to transfer to other Advocate facilities.
Id. ¶ 83. At the time of those applications,
Crum's Level 3 CAN was in effect. Id. Advocate
rejected Crum's four applications and offered employees
ranging from ages thirty-three to sixty-one each of the
positions. Id. Although Crum believes that HR,
specifically Corbin and Favaro, prevented his applications
from being accepted, Crum's citation to the record does
not contain admissible evidence to support his theory.
Id.; see also  ¶ 85. Rather,
recruiters at Advocate's headquarters rejected Crum's
applications at the initial screening phase, and neither
Corbin nor Favaro had any involvement in that process. 
¶ 86. Three of the positions to which Crum applied would
not have provided a higher pay rate than what Crum was
already receiving at the time he submitted his applications;
and one of the positions would have provided a lower pay
rate. Id. ¶ 84.
terminated Crum on June 23, 2016; the termination notice
stated that on May 31, 2016, Crum failed to properly
communicate with his fellow officers and that he failed to
double-check a patient's property, as he was required by
Advocate policy. Id. ¶ 40. Crum does not
believe that the reasons Matthews gave for terminating him
were genuine; he says that Matthews terminated him only after
Crum refused to take a retirement option and that only after
his refusal did Matthews claim that he was terminating Crum
for failing to communicate with co-workers, failing to
double-check a bag, and failing to wand a bag (all of which
Crum says was not true). Id. Crum's assertions,
however, do not controvert Advocate's statement regarding
Matthews's belief about his own reasoning. Matthews
investigated the May 31, 2016 incident by reviewing relevant
surveillance footage, emails, and records. Id.
¶¶ 40-41. Matthews also discussed the matter with
Corbin and Advocate's legal department, which led
Matthews and Corbin to the decision that termination was the
appropriate response. Id. ¶ 42. Crum met with
Matthews and Corbin to discuss his policy violations; but
since Crum did not provide any information to negate their
conclusion that he had violated Advocate policy, they
informed Crum that Advocate was terminating
Id. ¶¶ 43, 45. The parties dispute whether
they discussed Crum's retirement during this
Id. ¶ 43.
Advocate's Conflict Resolution program, Crum objected to
his termination. Id. ¶ 50. This prompted
Matthews and Favaro to contact Crum to schedule a meeting.
Id. Crum did not respond and eventually, Advocate
closed the Conflict Resolution case regarding his
termination. Id. Yet, Crum remains convinced that
the asserted bases for each of his CANs were invalid. 
Advocate's Treatment of Older Employees
is no evidence that Advocate had a plan to replace older
employees with younger employees.  ¶ 71. The email that Crum
relies on to claim that Advocate has such a policy, can be
summarized as follows: Corbin emailed Matthews on November
10, 2015 to “check in on the progress and
accountability” of the associates that Matthews had
rated as “a low performer” because Advocate
sought to gather more data about its “efforts to move
low performers up or out.” [65-2] at 50. Corbin
requested that Matthews identify any associate that had been
given “a DAW, Memo of Concern, Coaching, or other type
of Pre-Corrective action notification” and to identify
any associate who is improving and who will no longer be a
low performer. Id. at 51. Crum's name and three
other names (Franklin, Genever, and Robert) appeared under
“Current List.” Id. Matthews responded:
“Ms. Franklin has retired. Mr. Crum as you know has
been struggling.” Id. at 50.
Corbin's email describes Advocate's intention to move
low performers “up or out”; and Matthews's
response confirms that Crum continues to not meet performance
expectations. Crum testified that the three employees listed
in the email were “in their 60s, ” [52-2] at 23,
291:5-19, and the record shows that Advocate hired a
forty-two year old to fill Franklin's position, and a
forty-four year old to fill William's position, 
¶ 70. But this is not sufficient to permit an inference
that “low performers” was code for “old
employees.” The majority of Matthews's reports were
above the age of forty, id. ¶ 73, and he
terminated and disciplined several public safety officers who
were younger than Crum, id. ¶ 72:
Level 1, 2, and 3
Level 1, Termination
Id. Moreover, as of the filing of Advocate's
Statement of Facts, Advocate has not filled Crum's
position with another employee. Id. ¶ 50.
parties dispute whether Matthews: (1) hit Crum on the back of
his neck during a briefing on May 21, 2012, id.
¶ 64; (2) exposed Crum to “hazardous
material” (bed bugs), id. ¶ 65; (3)
denied Crum a bullet-proof vest, id. ¶ 67; and
(4) told or otherwise threatened other officers to retire,
id. ¶ 69;  ¶ 12. For purposes of this
summary judgment motion, I assume Crum's version of these
events to be true.
employed at Advocate, Crum filed three charges with the EEOC
against Advocate. The first two were on January 11, 2012 and
June 11, 2015; for both, Crum filed a charge for race and age
discrimination, as well as retaliation.  ¶¶
76-77. He did not file a lawsuit based on either charge,
though. Id. Matthews does not recall Crum filing
these charges,  and Favaro learned that Crum filed these
charges after Crum's termination. Id.
2, 2016, Crum went to the EEOC to complain about his
treatment at Advocate; Crum did not recall if he ever told
anyone at Advocate that he had visited the EEOC on that date.
Id. ¶ 74. Neither Matthews, Corbin, or Favaro
was aware that Crum intended to file ...