United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge
Rodney Lester sued his former employer, the Department of
Veterans Affairs (VA), alleging that it unlawfully
discriminated and retaliated against him because of his race
and age. Defendant moved for summary judgment. For the
reasons explained below, this Court partially grants the
facts come from Defendant's Local Rule 56.1 statement of
facts  and Plaintiff's statement of additional facts
Declarations as Evidence
Plaintiff's facts rely-at least in part-upon signed and
dated declarations from Plaintiff and Thomas Johnson, one of
Plaintiff's union representatives. See [34-1] at
2-12. Declarations may substitute for affidavits and
constitute evidence if they comply with 27 U.S.C. §
1746, which requires a dated signature. See Sheikh v.
Grant Reg'l Health Ctr., 769 F.3d 549, 551 (7th Cir.
2014). The Seventh Circuit has “repeatedly
emphasized” that parties may not use the term
“self-serving” to “denigrate perfectly
admissible evidence through which a party tries to present
its side of the story at summary judgement.” Hill
v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013). As
long as a competent declarant makes statements based upon
personal knowledge, the declaration can support a summary
judgment motion. Id. at 968; see also Fed.
R. Civ. P. 56(c)(4). In short, Plaintiff and Johnson's
declarations constitute admissible evidence at this point in
response to every paragraph in Plaintiff's statement of
additional facts that cites one of the declarations,
Defendant states a variation of the following: “Deny
that [Plaintiff's] allegations are supported by any
evidence other than his own testimony and declaration and
Thomas Johnson's declaration.” See, e.g.,
 at 3. Apparently, these purported denials indicate that
Defendant believes that Plaintiff and Johnson's
declarations, for whatever unspecified reason, do not
constitute evidence. But as this Court explained above,
Plaintiff may use those declarations as evidence to oppose
the motion. Defendant's improper denials fail to
controvert Plaintiff's facts, so for present purposes,
this Court deems admitted any fact that Defendant denied
solely by objecting to one of the declarations. See
N.D. Ill. L.R. 56.1(a); Smith v. Lamz, 321 F.3d 680,
683 (7th Cir. 2003).
Plaintiff's Disciplinary History and EEO
a 60-year-old African-American man, worked for the VA in
various jobs from 1979 to 2011.  at 10;  ¶ 3. In
1992, Plaintiff joined the IT Department at the VA's
Edward Hines, Jr. Hospital as an electronics technician. 
¶ 6. At some unspecified point, the VA promoted
Plaintiff to the position of computer electrician at Hines.
Id. ¶ 8. Gordon Brown, a Caucasian man, worked
as the Chief Information Officer at Hines and served as
Plaintiff's second line supervisor, but never his direct
supervisor. Id. ¶ 9.
2005 to 2009, Defendant disciplined Plaintiff multiple times
(with written reprimands and sometimes suspensions as long as
14 days) for performance and conduct issues, including
unauthorized absences and failing to follow instructions.
Id. ¶ 10. Plaintiff filed EEO claims against
the VA for each instance of discipline and disputes the
legitimacy of the disciplinary measures.  at 2. In
December 2009, Brown sent Plaintiff three “letters of
inquiry” about his continued performance and conduct
issues.  ¶ 11. Plaintiff contends that Brown sent
the letters and ordered the previous suspensions because
Plaintiff filed EEO complaints about Brown.  at 2, 12.
Plaintiff's earlier EEO complaints alleged that Brown
racially discriminated and retaliated against him. See,
e.g., id. at 11-12.
November 2009 and February 2010, Plaintiff and Defendant
participated in several mediation sessions regarding one of
Plaintiff's EEO complaints. Id. at 12. Various
union representatives, including Johnson, represented
Plaintiff throughout the mediation. Id. at 13. At
one session, a VA officer named Jeff Fears suggested that
Plaintiff transfer to a different facility, the Jesse Brown
VA Medical Center, because Plaintiff claimed that Brown
“was going after him.” Id. at 12; 
mediation continued, Brown sent Plaintiff a notice of
proposed removal in February 2010.  ¶ 12. The notice
charged Plaintiff with, among other things, failing to
complete work on time and behaving inappropriately at work.
Id. Again, Plaintiff filed EEO claims against the VA
for each instance of discipline and suggests that Brown
disciplined him for illegitimate reasons.  at 3.
Plaintiff received Brown's notice of proposed removal,
Johnson emailed Fears and asked him to stay a decision on
Plaintiff's removal until he knew the outcome of
Plaintiff's mediation. Id. at 13. Johnson
suggested the stay because the mediation might have resulted
in removing the suspensions from Plaintiff's record,
which would have meant that Defendant could not use those
suspensions as an “aggravating factor” to fire
Johnson, and Fears met for an unsuccessful mediation session
in March 2010, during which Fears refused to discuss
Plaintiff's pending EEO complaint or proposed removal.
Id. They met again in May 2010 with an EEO
representative present, and Fears again refused to discuss
Plaintiff's pending EEO complaint. Id. Instead,
Defendant offered Plaintiff a “Last Chance
The Last Chance Agreement (LCA)
name suggests, Plaintiff had a choice between signing the LCA
and losing his job. Id. He signed the agreement
(although not until September 2010).  ¶ 14. Per the
LCA, Defendant agreed to hold Plaintiff's removal in
abeyance for ten months, remove certain discipline-related
documents from his file, and transfer him to another
facility. Id. ¶ 16. Plaintiff agreed that
Defendant had sufficient evidence supporting the charges
against him to justify his removal, and agreed to
“maintain satisfactory conduct and work habits”
and be respectful of VA employees, patients, and visitors.
also required Plaintiff to voluntarily dismiss his pending
EEO complaints and waive his right to seek relief with the
EEOC or a United States district court under federal
employment statutes if Defendant disciplined or terminated
him pursuant to the LCA.  at 13-14. Johnson stated in his
declaration that Defendant often uses LCAs for employees with
EEO claims to force them to relinquish their claims,
“even in cases where there is no valid reason to remove
the employee.” Id. at 13; [34-1] at 10.
Johnson also indicated that LCAs are “a trap” for
employees, and that Defendant fires most employees on LCAs
shortly after they sign the agreements. [34-1] at 11. Before
signing the LCA, Plaintiff protested the provision that
required him to voluntarily dismiss his pending EEO
complaints.  at 13.
Plaintiff's Time at ...