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Phillipson v. McAleenan

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

September 30, 2019

KEVIN MCALEENAN, Acting Secretary, Department of Homeland Security, Defendant.



         Plaintiff Eric Phillipson worked as a planner for the Federal Emergency Management Agency (“FEMA”), an agency within the United States Department of Homeland Security (“DHS”), from 2012 until his termination in 2015. Phillipson has sued FEMA[1] pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., alleging that he was subjected to discrimination on account of his age and retaliation for complaining about it. Defendant now moves for summary judgment on both of Phillipson's claims. (Dkt. No. 51.) For the following reasons, Defendant's motion is granted.


         I. Federal Rule of Civil Procedure 56 and Local Rule 56.1

         Before summarizing the material facts, the Court must first address Phillipson's violations of Federal Rule of Civil Procedure 56 and Northern District of Illinois Local Rule 56.1. Rule 56 and Local Rule 56.1 set forth the manner in which parties are required to present their factual assertions when supporting or opposing a motion for summary judgment. Under Federal Rule 56(c):

         A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

         Fed. R. Civ. P. 56(c)(1). In addition, the rule allows a party to object that the material supporting or disputing a fact “cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). Where a party fails to properly support an assertion of fact or address another party's factual assertion, the court may afford the party the opportunity to properly support or address the fact, consider the fact undisputed for purposes of the motion, or grant summary judgment if the motion and facts, including those considered undisputed, show that the movant is entitled to it. Fed.R.Civ.P. 56(e).

         Local Rule 56.1 requires the party moving for summary judgment to submit a statement of material facts that it contends are undisputed and entitle it to summary judgment. L.R. 56.1(a)(3). The statement of facts “shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, part of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.” L.R. 56.1(a). In addition, the rule requires the party opposing summary judgment to file a “concise response to the movant's statement.” L.R. 56.1(b)(3). The response should respond to each numbered paragraph in the moving party's statement and where the opposing party disputes a fact, it must include specific references to the affidavits, parts of the record, or other supporting materials relied on to controvert the fact. Id. Notably, Local Rule 56.1 does not allow the nonmoving party to set forth nonresponsive additional facts in its response to the statement of material facts. De v. City of Chicago, 912 F.Supp.2d 709, 714-15 (N.D. Ill. 2012). To the extent the opposing party wishes to submit any additional facts, it must do so by submitting a separate statement of additional facts in a similar format to the moving party's statement of facts. L.R. 56.1(b)(3)(C); De, 912 F.Supp.2d at 715 (“It is improper, and a violation of Local Rule 56.1, for the nonmoving party to add additional facts to his Local Rule 56.1(b)(3)(B) response; the nonmoving party's additional facts belong in a separate statement.”). District courts are “entitled to expect strict compliance with Rule 56.1.” Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). Consequently, a district court is empowered to penalize noncompliance by striking improperly submitted additional facts or deeming admitted facts to which a party has not properly responded. See De, 912 F.Supp.2d at 711-16.

         Phillipson's counsel has violated both Rule 56 and Local Rule 56.1 in numerous ways. First, Phillipson's response to FEMA's statement of material facts disputes the vast majority of those facts. Yet many of the responses fail actually to controvert FEMA's factual allegations. Local Rule 56.1 “is not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted.” Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000) (interpreting the local rule that was later renumbered as L.R. 56.1). For example, FEMA states that Phillipson sent an email to Denise Dukes, Chief of FEMA's Specialized Planning Section, stating that Dukes had “fabricated” an issue, criticizing her grammar as “not clear, ” calling her concerns “spurious” and advocating that her conduct be investigated and prosecuted. (Def.'s Rule 56.1 Statement of Facts (“DSF”) ¶ 3, Dkt. No. 53.) Phillipson responds “Disputed, ” but then launches into a long colloquy describing his career experience as a “contracting officer and contracting officer's technical representative” working on billion-dollar programs overseas and his completion of a FEMA training course in April 2011 with “the highest score in the course.” Phillipson then accuses Dukes of not being certified through the same FEMA training course at the time of their email exchange, before ultimately concluding that “there was no personal attack on Denise Dukes as alleged by her.” (Pl.'s Resp. to Def.'s Rule 56.1 Statement (“PRSF”) ¶ 3, Dkt. No. 61.) Phillipson's response did nothing to address the substance of FEMA's factual assertion that he sent an email to Dukes and Wulfkuhle with certain statements. Similarly deficient responses abound throughout Phillipson's response. Thus, in the many instances where Phillipson failed to squarely dispute an asserted fact, the fact will be treated as admitted.

         In addition, Phillipson's counsel often introduces new facts in his responses to FEMA's statement of material facts. For example, FEMA states that in September 2013, Wulfkuhle issued Phillipson a performance review of “less than expected” in several areas, which did not affect Phillipson's pay or job responsibilities. (DSF ¶ 29.) In response, Phillipson describes an incident where Wulfkuhle denied his request for a scheduled trip in May 2012 due to lack of funding and then canceled the trip despite Phillipson's arrangement of alternate funding. (PRSF ¶ 29.) Again, a response to a statement of material facts should not contain additional facts that do not meet the substance of the moving party's asserted facts. Any new facts must be introduced in a separate statement of additional facts. Therefore, such nonresponsive additional facts are stricken and will not be considered by the Court.

         II. Factual Background

         Except where otherwise indicated, the following facts are undisputed or deemed admitted due to Phillipson's counsel's Rule 56 and Local Rule 56.1 violations.

         At all times relevant to this lawsuit, Phillipson was over 40 years old. (Def.'s Resp. to Pl.'s Rule 56.1 Statement (“DRSF”) ¶ 1, Dkt. No. 64.) Phillipson worked as a planner for FEMA Region V in Chicago. (PRSF ¶ 1.) He was hired on October 24, 2010 and ultimately fired on December 14, 2015. (Id. ¶¶ 1, 62.) During Phillipson's employment at FEMA, Gustav Wulfkuhle served as Phillipson's direct supervisor and Paul Preusse served as Wulfkuhle's supervisor and Phillipson's second-line supervisor. (Id. ¶ 2.) FEMA contends that Phillipson's termination was due to his own misconduct; namely, his poor work performance, repeated violations of FEMA policies and procedures, harassment of coworkers, and failure to follow instructions.

         A. Phillipson's Work Quality

         First, Phillipson received reviews indicating unsatisfactory work performance. In October 2010, Phillipson was assigned as the contracting officer's technical representative for the Combined Federal-State-City Improvised Nuclear Device Response Plan. (DRSF ¶ 3.) Phillipson claims that he “had superior evaluation [sic], ” but Wulfkuhle gave him a “less than expected” ranking on his performance review. (Id. ¶¶ 4-5.) In September 2013, Wulfkuhle again reviewed Phillipson as “less than expected” in several areas. (PSRF¶ 29.) However, none of those negative reviews affected Phillipson's pay or job duties. (Id. ¶¶ 29, 45.)

         B. Phillipson's Violation of FEMA Policies and Procedures

         Additionally, on multiple occasions, FEMA charged Phillipson for violating multiple policies and procedures. For example, Wulfkuhle confronted Phillipson several times for using his travel charge card to make personal purchases. In March 2011, Phillipson's travel charge card statement reflected the purchase of a U.S. Airways flight for Sarah Jardine, an acquaintance of his. (DSF ¶ 21.) And in September 2012, Phillipson's travel charge card statement reflected the purchase of a United Airlines baggage fee of $25 for Jardine. (Id.) Again, on January 2013, the statement reflected a payment of a $10 JetBlue fee for Jardine. (Id.) Phillipson attributes some of these charges to a United Airlines frequent flyer account he “shared” with Jardine but otherwise blames the various airlines for wrongly charging his card. (DSF ¶ 22, PSRF ¶ 22.)

         In April 2013, Wulfkuhle proposed that Phillipson be suspended for five days for delinquently paying his travel charge card and improperly using the card to pay for a meal at a Bennigan's restaurant in Chicago. (DSF ¶ 17.) Phillipson counters that the date on his charge card statement is inaccurate because Bennigan's had a computer issue that caused credit card charges to be posted on a later date than when they were incurred. (PRSF ¶¶ 17-19.) In addition, Wulfkuhle and Preusse heard from Mary Beth Caruso that Phillipson had his travel charge card suspended or had been delinquent in making payments at least nine times during a one-year period. (DSF ¶ 18.)

         In June 2013, Wulfkuhle denied Phillipson's request for four hours of sick leave, explaining that Phillipson failed to personally notify anyone in his supervisory chain of his departure as required by FEMA policy. (Id. ¶¶ 24-25.) According to Phillipson, he submitted a leave request online through the approved system, which generated an email to Wulfkuhle. (PSRF ¶¶ 24-25.) In September 2013, Phillipson again requested eight hours of sick leave, which Wulfkuhle denied for the same reason. (DSF ¶ 30.)

         On May 7, 2014, Wulfkuhle denied Phillipson's request for nine hours of overtime or compensation for time spent traveling because Phillipson's travel voucher indicated that he was not traveling on that date. (Id. ¶ 35.) And on October 3, 2014, Wulfkuhle denied Phillipson's request for reimbursement for an excess baggage charge because Phillipson did not submit a receipt. (Id. ¶ 51.) According to Phillipson, Wulfkuhle denied not only the baggage charge but Phillipson's entire request for reimbursement.[2] (PRSF ¶ 51.)

         C. Phillipson's ...

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