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Potnick v. Village of Glenview

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

February 27, 2018



          Gary Feinerman United States District Judge

         Jeffrey Potnick alleges that his former employer, the Village of Glenview, terminated him in violation of the Age Discrimination in Employment Act (“ADEA”), 20 U.S.C. § 621 et seq., and the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Doc. 10. The Village moves for summary judgment. Doc. 25. The motion is granted.


         As a preliminary matter, Potnick's opposition brief asserts facts not presented in either his Local Rule 56.1(b)(3)(B) response to the Village's Local Rule 56.1(a)(3) statement or his Local Rule 56.1(b)(3)(C) statement. Doc. 43 at 6, 10-12. Those facts are disregarded because facts may be considered on summary judgment only if presented in a compliant Local Rule 56.1 statement or response. See Midwest Imps., Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (holding that the predecessor to Local Rule 56.1(b)(3) “provides the only acceptable means of … presenting additional facts to the district court”); Perez v. Town of Cicero, 2011 WL 4626034, at *2 (N.D. Ill. Sept. 30, 2011) (“Under settled law, facts asserted in a brief but not presented in a Local Rule 56.1 statement are disregarded in resolving a summary judgment motion.”) (internal quotation marks omitted). The court also disregards the portions of Potnick's Local Rule 56.1(b)(3)(B) response that simply assert, without record support, that he “objects to [the Village's] statement … [because it] is argumentative and self-serving, and has no probative value whatsoever, ” or some variation thereof. Doc. 44 at ¶¶ 9, 11, 27-38, 40, 44-52, 59-74, 76-80; see Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004) (holding that “where a non-moving party denies a factual allegation by the party moving for summary judgment, that denial must include a specific reference to the affidavit or other part of the record that supports such a denial”); Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (“[A] general denial is insufficient to rebut a movant's factual allegations; the nonmovant must cite specific evidentiary materials justifying the denial.”).

         Another preliminary matter arises from Potnick's hearsay objections to several assertions in the Village's Local Rule 56.1(a)(3) statement. “[H]earsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial.” Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). Hearsay is an out-of-court statement offered “to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c)(2). The bulk of Potnick's hearsay objections pertain to negative comments regarding his performance that his supervisor, Brent Reynolds, received from others, or similar negative comments that Reynolds himself made. Doc. 44 at ¶¶ 30-36, 38, 40, 44-45, 50-52, 61, 68, 74. The objections are overruled. While those out-of-court statements are not admissible for the truth of the matter asserted-i.e., that Potnick in fact failed to perform his duties adequately-they may be considered when evaluating the effect they had on Reynolds as his supervisor and the principal decisionmaker regarding his employment. See Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 796 (7th Cir. 2015) (holding that a negative reference from the plaintiff's former employer was not hearsay because it had been “considered not for its truth, but to show its effect on the state of mind” of the defendant hospital in rejecting the plaintiff's application); United States v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993) (“An out of court statement that is offered to show its effect on the hearer's state of mind is not hearsay.”); Corral v. Chi. Faucet Co., 2000 WL 628981, at *5 & n.4 (N.D. Ill. Mar. 9, 2000) (holding that a co-worker's statement that the plaintiff made a threat was “admissible on summary judgment not for the truth of the matter asserted, but to show [the decisionmaker's] state of mind and reason for recommending [the plaintiff's] termination”).

         Potnick's other hearsay objections pertain to his own out-of-court statements. Doc. 44 at ¶¶ 47, 51, 62. Because Potnick is the party opponent of the party (the Village) introducing those statements, they are non-hearsay. See Fed. R. Evid. Rule 801(d)(2)(A) (providing that a statement that is offered against an opposing party and that “was made by the party in an individual or representative capacity” is not hearsay); Baines v. Walgreen Co., 863 F.3d 656, 663 (7th Cir. 2017) (holding that because a “statement is not hearsay when offered against an opposing party and … made by the party's agent or employee on a matter within the scope of that relationship, ” a non-party employee of the defendant employer could testify regarding what her supervisor had said about the employer's decision not to hire the plaintiff); Halloway v. Milwaukee Cnty., 180 F.3d 820, 825 n.4 (7th Cir. 1999) (“[S]tatements made by … [the] defendants … are not hearsay because they are made by party opponents.”).

         With these preliminaries resolved, the following facts are set forth as favorably to Potnick as the record and Local Rule 56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281 (7th Cir. 2015).

         Reynolds, the Village's Director of Police and Fire Dispatch, hired Potnick to serve as a full-time telecommunicator in its Public Safety Support Services Division, referred to colloquially as the “dispatch center, ” which provides emergency and nonemergency dispatch services to several municipalities. Doc. 44 at ¶¶ 4, 6, 13, 19. Potnick began a twelve-month probationary period on December 4, 2014. Id. at ¶¶ 4, 9-10. The Village treats probationary and non-probationary employees “very differently.” Id. at ¶ 11. Non-probationary employees may be fired only for “just cause, ” while probationary employees are not protected by the “just cause” standard. Id. at ¶¶ 8-9. Moreover, the Village “typically only gives counselings, verbal warnings, and written warnings to probationary employees, ” and will, rather than suspend a probationary employee, “often skip straight to termination” after “more egregious errors or after multiple written warnings.” Id. at ¶ 11.

         Over Potnick's eleven months as a full-time probationary employee, several Daily Observation Reports prepared by his supervisors gave him marks of “4” or “5” on a scale of 5 on various assessment metrics. Doc. 48 at ¶ 31. Still, Reynolds was “periodically informed” that Potnick was performing poorly and making “dispatch errors … [and] address verification errors.” Doc. 44 at ¶ 30. Two supervisors told Reynolds in December 2014 that Potnick was “unable to work by himself as a call-taker.” Id. at ¶ 31. Reynolds received emails in January and February 2015 expressing concerns with Potnick's skills and noting that he struggled to correctly input addresses. Id. at ¶¶ 32, 34. One trainer told Reynolds in February that he had “deep concerns over [Potnick's] successful completion of his training program” and that “it would seem he is getting worse, not better.” Id. at ¶ 35.

         In March, Reynolds was told that Potnick had made two dispatch errors, and reminded him to be careful when speaking on an “open mic” because he had been recorded expressing frustration after a call. Id. at ¶¶ 36-38. In April, Reynolds received a memorandum from Potnick summarizing a dispatch error he had made. Id. at ¶ 39; Doc. 48 at ¶ 24. (Potnick asserts that a computer error was responsible, Doc. 48 at ¶ 24, but his memorandum admitted that he “immediately informed [another employee] of [his] error” and that the other employee “corrected his error, ” Doc. 27-5 at 24.) In June, Reynolds was copied on an email stating that Potnick “need[ed] some work, ” and he received another email stating that Potnick had taken responsibility for a delayed emergency dispatch call. Doc. 44 at ¶¶ 40-41. (Potnick asserts that the latter email indicates that “any error [he had] made was the result of the failure of others to properly train him, ” but the email actually states that Potnick “took full responsibility for [sic] delay in alarm call.” Doc. 27-5 at 6.)

         In July, Potnick emailed Reynolds regarding an address error that he had made. Doc. 44 at ¶ 42. (Potnick asserts that this “does not accurately state the information” in the documents cited by the Village, but the Village's reading of those documents is confirmed by Potnick's deposition testimony that he “reported an address error” to Reynolds in July. Doc. 45-3 at 26.) Shortly thereafter, Reynolds told another employee via email that they “need[ed] to look at ending [Potnick's] training program and ending his employment if he isn't finished with [all training modules] by September 1st, but if he makes another mistake with sending units to the wrong address again he should be terminated immediately.” Doc. 44 at ¶ 43.

         In August, Reynolds was notified of several “additional incidents involving Potnick, ” including an “unprofessional conversation with a fellow coworker” in which he used profanity. Id. at ¶ 44. (Potnick asserts without contradiction that “everybody swore” in the dispatch center. Doc. 48 at ¶ 25.) Reynolds was also informed that Potnick had failed to “timely dispatch a call” and that a trainer “could not recommend that Potnick be fully released to work on his own for dispatching police calls.” Doc 44 at ¶ 44.

         On August 30, Potnick had a “verbal altercation with a Highland Park police officer.” Id. at ¶ 45. The incident arose when the officer “stormed into the dispatch center, yelling and screaming, ” to confront Potnick regarding a call that he had handled earlier that day. Doc. 48 at ¶ 27; see also Doc. 44 at ¶ 45. Potnick told the officer: “You called yourself out, asshole. Listen to the fucking radio next time. You would have figured out what was going out.” Doc. 44 at ¶ 47. (Potnick disputes this, but this quotation is drawn from his own deposition testimony. Doc. 45-3 at 39.) Reynolds considered terminating Potnick for this conduct, but he instead opted for a “verbal counseling, ” which occurred on October 1. Doc. 44 at ¶ 49.

         In September, Village personnel wrote several counseling memoranda addressed to Potnick stemming from certain of his actions in August. One dealt with his “failure to help a male caller locate an intoxicated woman.” Id. at ΒΆ 51. Another highlighted his failure to dispatch a ...

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