Jackson v. American Water Co.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

LYNETTE R. JACKSON,

Plaintiff,

v. Case No. 20-cv-413-SPM

AMERICAN WATER CO.,

Defendant.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Pending before the Court is a Motion for Summary Judgment and supporting

Memorandum of Law filed by Defendant, American Water Works Service Company,

Inc., incorrectly named as American Water Co. (“American Water”) (Docs. 81, 82). For

the reason’s set forth below, the Court GRANTS the Motion for Summary Judgment.

This action arises from the employment of Plaintiff Lynette R. Jackson

(“Jackson”) at American Water (Doc. 1). In the second amended complaint, Jackson

alleged violations of Title VII of the Civil Rights Act (“Title VII”) on the basis of race and

color (Doc. 31). Specifically, Jackson asserted that the alleged discriminatory conduct

included retaliation, and ultimately resulted in the termination of her employment. (Id.)

Jackson also raised claims under the Americans with Disabilities Act (“ADA”) (Id.).

FACTUAL BACKGROUND

Within its Motion for Summary Judgment, American Water set forth its factual

allegations, breaking it down into several sections (Doc. 49). In accordance with Rule

56(c)(1)(A) of the Federal Rules of Civil Procedure, American Water cited to particular

portions of the record to support its contention that each and every fact alleged was

material and undisputed (Id.). Furthermore, American Water provided to Jackson, a pro

se litigant, the requisite Notice of the filing of its Motion for Summary Judgment

pursuant to Rule 56(a) of the Federal Rules of Civil Procedure (Doc. 87). This notice set

forth the particular procedures necessary in summary judgment proceedings and

advised that,

“This Rule provides that any factual assertion or statement made in the

movant’s affidavits and/or other documentary evidence will be taken as

true by the Court unless the non-movant contradicts the movant with

counter-affidavits and/or other documentary evidence.” (Id); see Fed. R.

Civ. P. 56(c).

Jackson addressed summary judgment on July 25, 2022 with a filing (Doc. 97).

Although the filing indicated, “Plaintiff, Motion for Summary Judgment”, and was

originally docketed as Plaintiff’s Motion for Summary Judgment, this Court only

accepted it as plaintiff’s response to American Water’s Motion for Summary Judgment

for two reasons (Doc. 98). First, this Court is constrained to note that the dispositive

motion deadline had passed on June 17, 2022, which was more than a month before

plaintiff’s purported motion was filed. Second, this Court points out that the parties

(including Jackson) were advised via docket entry 92 on June 23, 2022, that “any

response to [American Water’s] Motion for Summary Judgment shall be filed on or

before July 25, 2022”, which was the date of filing of plaintiff’s purported motion.

In the “response”, Jackson did not comply with the Rule 56 provisions set forth

infra (Doc. 97). Instead, she restated her prior allegations in a non-sensical and

unsupported diatribe (Id.).

As such, and in accordance with Rule 56(e)(2), this Court may consider the facts

set forth by American Water as undisputed for purposes of this motion. Nevertheless,

the Court is still obligated to ensure that the evidence submitted by American Water

properly substantiates its assertions of entitlement to summary judgment. Fed. R. Civ.

P. 56(e)(3). Indeed, the [movant] must still demonstrate that it is entitled to judgment

as a matter of law.” Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012).

The following is a summary of the facts alleged by American Water1:

American Water is a water and waste utility company headquartered in Camden,

New Jersey. In 2002, Jackson began working for American Water at its customer service

call center in Alton, IL as a customer service representative. Jackson’s employment was

governed, in part, by a Collective Bargaining Agreement (“CBA”) between American

Water and the Utility Workers Union of America, Local 640 (“Union). In or around 2013,

Jackson transferred from her role as a customer service representative to a billing

specialist, where she was tasked with providing billing services and responding to

inquiries from American Water customers.

During Jackson’s employment, American Water maintained a Code of Ethics and

other policies that prohibited retaliation, discrimination, and bullying. American Water

employees who experienced or suspected any violations of these policies were directed

to contact either their manager, Human Resources, the Compliance and Ethics

Department, a member of the Legal Department, or the Ethics Helpline. American

1 These facts are limited to those facts which would be admissible at trial and which are adequately

supported in the Motion for Summary Judgment and are material to the issues in this case.

Water also implemented policies regarding respect and dignity in its workplace, and

Jackson admitted she was aware of the policies and methods for report any violations.

American Water maintained attendance requirements for all its employees, to

wit: American Water employees were expected to be at work on time, unless approved

to be absent. Employees with four or more unexcused absences were subject to

discipline, including discharge. When employees anticipated a need for a leave of

absence, American Water required they communicate the request for leave to their

immediate supervisor, as well as American Water’s third-party administrator, ‘The

Hartford’. Once the need for leave is requested, the employee’s supervisors will

coordinate with The Hartford and American Water’s leave of absence coordinators

regarding the leave and return to work. Disability benefits and terms for union

employees are governed by the applicable CBA, as well as health and welfare benefits.

When anticipating a return to work from leave, the employee must provide a return to

work certificate clearing them for duties. Disability benefits and terms for union

employees are governed by the applicable CBA, along with American Water’s health and

welfare benefits. Jackson’s CBA offered a maximum of fifty-two (52) weeks of short-term

disability benefits. Union employees were not offered long-term disability benefits.

In 2016, American Water terminated for violations of the attendance policy. In

May 2016, the Union filed a grievance on behalf of Jackson after her termination. The

grievance was settled in December 2017 when American Water agreed to reinstate her

in exchange for a withdrawal of the grievance. The terms of the agreement are

confidential.

In January 2018, Jackson was reinstated in her former role as a billing specialist.

Upon her return to work, Jackson was provided over two weeks of retraining on the

essential functions of her job, which included shadowing other employees, classroom

training, and access to online training materials and training aids. According to Key

Performance Indicators (“KPI”)2, Jackson’s performance declined despite the retraining.

Three months after her return, Jackson was notified that her performance was

unsatisfactory, and on July 19, 2018, she was placed on a 90 day Performance

Improvement Plan (“PIP”). Jackson’s PIP was set up in three 30-day increments and

created an action plan to improve her performance, which included additional training,

which she claimed helped.

In August 2019, Jackson filed a Charge of Discrimination with the Illinois

Department of Human Rights and the EEOC, claiming she was discriminated against

because of her race and was retaliated against because she was reinstated after her

discharge grievance was overturned. The charge indicated the conduct took place

between June 1, 2018 and August 20, 2019 and was for race discrimination and

retaliation.

In October 2019, Jackson applied for short-term disability (“STD”) benefits due

to medical reasons. Jackson’s STD benefits were approved on October 17, 2019 through

October 25, 2020, so she began a leave of absence. On December 6, 2019, Jackson

returned to work, but left after a partial-day at American Water, and then she remained

on leave receiving STD benefits for the maximum allowed fifty-two (52) weeks, which

had begun on October 17, 2019 and was not reset on December 6, 2019.

2 KPI scores are provided as a productivity percentage rate, with 100 considered excellent.

On October 20, 2020, American Water sent Jackson a notice of the imminent

exhaustion of the STD benefits on October 25, 2020. American Water requested Jackson

confirm her availability to return to work on October 26, 2020, with or without

reasonable accommodations. The letter advised Jackson that if she was seeking

accommodation under the ADA, she needed to have her health care provider complete a

medical certification establishing the need. American Water provided Jackson until

November 4, 2020 to either return to work or seek additional leave as an

accommodation, and Jackson was advised if she did not comply by November 4, 2020,

her employment with American Water would be terminated.

On October 27, 2020, Jackson requested to return to work on November 9, 2020,

American Water agreed to this request provided Jackson supply a medical release from

her health care provider. On November 10, 2020, Jackson sent an e-mail to American

Water advising she was unable to return to work and had no estimated return date.

As of November 13, 2020, Jackson had failed to provide American Water with a

release from a health care professional that she was able to return to work or any

request for an accommodation for continued leave. Jackson had fifteen consecutive

absences that began on October 25, 2020 that were considered unexcused and

unapproved, so American Water notified her of her termination in accordance with their

attendance policy for having more than four unexcused absences. Jackson admits she

did not return to work for American Water and only worked a portion of a day over the

previous 52 weeks while receiving her STD benefits.

PROCEDURAL HISTORY

On February 25, 2020, Jackson filed her complaint against American Water,

albeit in the Eastern District of Missouri (Doc. 1). On April 20, 2020, the Eastern District

provisionally granted in forma pauperis (“IFP”) status and transferred this action to this

Court (Doc. 5). On June 12, 2020, Jackson’s IFP status was permanently granted, even

though no preliminary review was conducted of the complaint (Doc. 11). American

Water filed a motion to dismiss, which was granted without prejudice and Jackson was

also granted leave to amend (Doc. 30).

On February 11, 2021, Jackson filed her amended complaint (Doc. 31). On March

3, 2021, American Water filed a motion to dismiss. Shortly thereafter, Jackson was

advised that any response to the motion was due or on before April 5, 2021 (Doc. 36).

On April 12, 2021, an Order to Show Cause was entered as Jackson had not responded

to the pending motion to dismiss (Doc. 38). On April 26, 2021, Jackson filed her response,

and on June 1, 2021, this Court denied the aforementioned motion to dismiss, finding

that Jackson had pled enough to state the following claims: (1) Retaliation under Title

VII of the Civil Rights Act of 1967; (2) Race and/or national origin discrimination under

Title VII of the Civil Rights Act of 1967 and 42 U.S.C. §1981; and, (3) Discrimination

under the Americans with Disabilities Act of 1990 (Docs. 39, 40).

On June 17, 2021, this case was assigned CJRA Track B with a final pretrial

conference setting on June 20, 2022 and a presumptive jury month of July 2022 (Doc.

42). On July 19, 2021 a scheduling order was entered regarding the handling of

discovery and providing a deadline of March 4, 2022 for the filing of dispositive motions

(Doc. 34). On November 16, 2021 and November 19, 2021, the Court received letters

from Jackson regarding perceived discovery issues (Docs. 47, 48). At a December 1, 2021

status hearing, the parties advised the Court of ongoing discovery delays and were

Ordered to prepare a revised Scheduling Order by December 22, 2021 (Doc 50). On

December 20, 2021, the amended report was accepted and the final pretrial setting was

changed to September 12, 2022 with jury trial presumptively scheduled in October 2022

(Doc. 53). The amended Order extended the discovery deadline to 5/6/2022 and the

dispositive motion deadline to 6/3/2022 (Id.). On May 24, 2022, the dispositive motion

deadline was extended to June 17, 20223 (Doc. 76).

On June 17, 2022, American Water its motion for summary judgment and

supporting memorandum of law (Docs. 81, 82). On June 22, 2022, American Water filed

a notice of filing pursuant to Rule 56 of the Federal Rules of Civil Procedure, regarding

the motion for summary judgment that advised Jackson, as a pro se litigant, of the

procedures and potential pitfalls of Rule 56 (Doc. 51). Jackson’s response was due on

July 25, 2022; on which date plaintiff filed a motion, which was deemed to be response

(Doc. 97).

On August 8, 2022, American Water filed a reply, claiming the reply was

necessary to address the deficiencies in Jackson’s response (Doc. 99). Within its reply,

American Water argued that even though Jackson was pro se, she was still required to

comply with procedural rules, including Local Rules and the Federal Rules of Civil

Procedure (Id.). American Water also emphasized that Jackson has not shown any

evidence that supports her claims (Id.)

3 The discovery deadline was not extended and remained May 6, 2022. Accordingly, discovery has been

closed in this case for more than 3 months (as of August 22, 2022).

LEGAL STANDARD

Summary Judgment – Rule 56 of the Federal Rules of Civil Procedure

The court shall grant summary judgment “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.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014) (quoting

Fed. R. Civ. P. 56(a)). Once the moving party has set forth the basis for summary

judgment, the burden then shifts to the nonmoving party who must go beyond mere

allegations and offer specific facts showing that there is a genuine issue of fact for trial.

Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Stated another

way, the nonmoving party must offer more than “[c]onclusory allegations, unsupported

by specific facts,” to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d

767 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990)).

Summary judgment is proper against “a party who fails to make a showing

sufficient to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial.” Id. at 322. The non-moving party

“must do more than simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). “The mere existence of a scintilla of evidence in support of the [non-movant's]

position will be insufficient; there must be evidence on which the jury could reasonably

find for the [non-movant].” Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). Indeed,

the nonmovant must present admissible evidence that sufficiently shows the existence

of each element of its case on which it will bear the burden of proof at trial. Midwest

Imports, Ltd. v. Coval, 71 F.3d 1311 (7th Cir. 1995) (citing Serfecz v. Jewel Food Stores,

67 F.3d 591 (7th Cir. 1995); Greater Rockford Energy and Technology Corp. v. Shell Oil

Co., 998 F.2d 391 (7th Cir. 1993)).

Local Rules – Rule 7.1 of the Southern District of Illinois

According to Local Rule 7.1(e) of the U.S. District Court for the Southern District

of Illinois, “Any brief in support of or in opposition to a motion for summary judgment

shall contain citation to relevant legal authority and to the record, together with any

affidavits or documentary material designated pursuant to Federal Rule of Civil

Procedure 56 supporting the party’s position.” (SDIL-LR 7.1(e)). Additionally, Local

Rule 7.1(d) states in pertinent part that:

“Allegations of fact not supported by citation, may, in the Court’s

discretion, not be considered.” (SDIL-LR 7.1(d)).

Pro Se Filings

While it is true that pro se pleadings are liberally construed; leniency toward

a pro se litigant is circumscribed. See Greer v. Bd. Of Educ., 267 F.3d 723, 727 (7th Cir.

2001) (courts are not “obliged ... to scour the record looking for factual disputes” to rescue

a pro se litigant from losing summary judgment). Pro se status does not serve as a

license to ignore the Federal Rules of Civil Procedure or the Local Rules. See Members

v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (“[procedural] rules apply to uncounseled

litigants”); Downs v. Weslphal, 78 F.3d 1252, 1257 (7th Cir. 1996) (“pro se litigants are

not entitled to a general dispensation from the rules of procedure”). Furthermore,

although severe, the Seventh Circuit has consistently upheld district judges’ discretion

to require strict compliance with local rules. Coleman v. Goodwill Indus. of Se. Wis.,

Inc., 423 Fed.Appx. 642, 643 (7th Cir. 2011) (“Though courts are solicitous of pro se

litigants, they may nonetheless require strict compliance with local rules); Wilson v.

Kautex, Inc., 371 Fed.Appx. 663, 664 (7th Cir. 2010) (“[S]trictly

enforcing Local Rule 56.1 was well within the district court’s discretion, even though

Wilson is a pro se litigant.”) (citation omitted); Cady v. Sheahan, 467 F.3d 1057, 1061

(7th Cir. 2006) (“[E]ven pro se litigants must follow rules of civil procedure.”).

ANALYSIS

I. Retaliation under Title VII of the Civil Rights Act of 1967

In general, Title VII forbids employer retaliation where an employee “has opposed

any practice made an unlawful employment practice” or “has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing

under” Title VII, 42 U.S.C. § 2000e–3(a).

Although the Court noted that Jackson’s amended complaint was “not a model of

clarity”, it determined that she could proceed with her cause of action and divided

Jackson’s claims into counts, including Count I as a claim for retaliation under Title VII

of the Civil Rights Act of 1967 (Doc. 28). In this count, the Court inferred that Jackson

claimed American Water retaliated against her by the subsequent termination because

it was not happy with the CBA grievance and settlement authorizing her to return to

work (Doc. 31).

There are two different ways to make a prima facie showing of retaliation, the

direct method and the indirect method. Boss v. Castro, 816 F.3d 910 (7th Cir. 2016).

Under both methods, Jackson fails.

A Title VII plaintiff proceeding under the direct method of retaliation must show

that (1) she engaged in protected activity; (2) she suffered a materially adverse

employment action; and (3) there was a causal link between the protected activity and

the adverse action. Harden v. Marion County Sheriff’s Dept., 799 F.3d 857, 861-862 (7th

Cir. 2015) (citing Colman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). To

prove retaliation under the indirect method, a plaintiff must show that (1) she engaged

in protected activity; (2) she suffered a materially adverse employment action; (3) she

was meeting his employer's legitimate expectations; and (4) she was treated less

favorably than similarly-situated employees who did not engage in protected

activity. Harden, 799 F.3d at 862 (citing Argyropoulos v. City of Alton, 539 F.3d 724, 733

(7th Cir.2008)).

The first two elements of proof are the same under both the direct or indirect

methods. While it is clear that Jackson engaged in protected conduct by being a member

of CBA that filed a grievance on her behalf and that she later suffered a materially

adverse employment action, i.e. termination, she still cannot prevail under either

scenario as she cannot prove the remaining elements. Under the direct method, Jackson

cannot show a causal connection between the filing of the grievance with her subsequent

termination. Furthermore, under the indirect method, she cannot show that she was

meeting job expectations and was treated less favorably than similarly situated

employees.

While not conceding all the elements have been established under one of the

methods, even if they were, he would still fail. Under both methods, once a prima

facie case is established, a presumption of retaliation is triggered, and the burden shifts

to the employer to articulate some legitimate, nonretaliatory reason for its

action. Id. (citing Coleman, 667 F.3d at 845). American Water can articulate that the

subsequent termination was due to a failure to comply with the terms of the STD, which

a non-pretextual reason.

II. Race and/or National Origian Discrimination under Title VII of the

Civil Rights Act or 1967 and 42 U.S.C. §1981

This Court determined that Count II of Jackson’s Amended Complaint was race

and/or national origin in violation of Title VII of the Civil Rights Act of 1967 and 42

U.S.C. §1981 (Doc. 40). Title VII prohibits employers from discriminating against

employees because of their race, color, religion, sex, or national origin. 42 U.S.C. §

2000e–2(a)(1).

The test for proving discrimination “is simply whether the evidence would permit

a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or

other proscribed factor caused the discharge or other adverse employment action”.

David v. Board of Trustees of Community College District No. 508, 846 F.3d 216, 224

(7th Cir. 2017) citing Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).

Generally speaking, the plaintiff has the initial burden of establishing that: (1) he is a

member of a protected class, (2) he performed reasonably on the job in accord with his

employer[’s] legitimate expectations, (3) despite his reasonable performance, he was

subjected to an adverse employment action, and (4) similarly situated employees outside

of his protected class were treated more favorably by the employer.” Andrews v. CBOCS

West, Inc., 743 F.3d 230, 234 (7th Cir. 2014), overruled on other grounds by Ortiz, 834

F.3d at 765. “If the plaintiff satisfies that burden, then the employer must articulate a

legitimate, nondiscriminatory reason for the adverse employment action, at which point

the burden shifts back to the plaintiff to submit evidence that the employer's

explanation is pretextual.” Id.

There is no question that Jackson, an African American female, is a member of

at least one protected class, and that she was terminated, which is an adverse

employment action. However, Jackson has not shown that she was performing

reasonably, nor has she shown that any similarly situated employee outside of her

protected class was treated more favorably.

Assuming arguendo that Jackson can meet the burden, Count II would still fail.

American Water has articulated legitimate, nondiscriminatory reasons for what

transpired. Jackson did not comply with the STD protocol and did not return to work.

American Water had an attendance policy that included progressive discipline and

emphasized that “An employee may not return to work without appropriate

documentation.” (Doc. 82-1, p. 276, 277). Additionally, Jackson never provided any

physician’s release and in essence, abandoned her job after failing to return at the end

of her STD (Id.).

In the employment discrimination context, summary judgment is warranted

where “the evidence, interpreted favorably to the plaintiff, could not persuade a

reasonable jury that the employer had discriminated against the plaintiff.” Palucki v.

Sears, Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989). Because Jackson is unable

to prove a prima facie case of discrimination; summary judgment is clearly appropriate.

III. Discrimination under the Americans with Disabilities Act of 1990

This Court determined that Count III of Jackson’s Amended Complaint alleged

discrimination under the ADA (Doc. 40). “The ADA prohibits an employer from

discriminating against a qualified person on the basis of disability.” McCurry, 942 F.3d

at 789 (citing 42 U.S.C. § 12112(a)). To prove a violation of this provision, a plaintiff

must show “(1) he is disabled; (2) he is otherwise qualified to perform the essential

functions of the job with or without reasonable accommodation; and (3) the adverse job

action was caused by his disability.” Shell v. Burlington N. Santa Fe Ry. Co., 941 F.3d

331, 335 (7th Cir. 2019), reh’g denied (Dec. 20, 2019).

In this case, Jackson has not satisfied any of the requisite elements, much less

even one. She has not proven a disability; she has not shown that she is otherwise

qualified to person the functions of her job, with or without reasonable accommodations;

nor has she shown that any adverse action was caused by her alleged disability.

With respect to the ADA, summary judgment for a defendant is appropriate when

the plaintiff “fails to make a showing sufficient to establish the existence of an element

essential to [his] case, and on which [he] will bear the burden of proof at trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). Given the facts before the Court, summary

judgment is clearly warranted on Count III of the amended complaint.

Notwithstanding the forgoing, Jackson’s claim under the ADA is also precluded

as he did not exhaust his administrative remedies. Under the ADA, “a plaintiff filing

suit in federal court may bring only those claims that were included in her

EEOC charge, or that are like or reasonably related to the allegations of the charge and

growing out of such allegations.” See Chaidez v. Ford Motor Co., 937 F.3d 998, 1004 (7th

Cir. 2019) . “Claims are ‘like or reasonably related’ when (1) there is a reasonable

relationship between the allegations in the charge and the claims in the complaint and

(2) the claim in the complaint can reasonably be expected to grow out of an EEOC

investigation of the allegations in the charge.” Id. ). “The charge and complaint must, at

minimum, describe the same conduct and implicate the same individuals.”

Id. (emphases in original).

In her Charge of Discrimination, Jackson stated,

“I believe I have been discriminated against due to my race, African

American and retaliated against for participating in protected

activity, in violation of Title VII of the Civil Rights Act ...” (Doc. 18-

1).

While the charge named American Water as respondent, so clearly implicated the

same party, the same conduct is not implicated. The EEOC charge only mentions Title

VII and instances where Jackson claims racial discrimination and retaliation. At no

point does the EEOC charge refer to the ADA and/or any alleged disability.

CONCLUSION

For the reasons set forth above, the Court GRANTS the Motion for Summary

Judgment filed by Defendant, American Water Works Service Company, Inc.,

incorrectly named as American Water Co. This action is DISMISSED with prejudice

and the Clerk of Court is DIRECTED to close this case and enter judgment accordingly.

As such, all pending court dates are cancelled and terminated.

IT IS SO ORDERED.

DATED: August 26, 2022

/s/ Stephen P. McGlynn_

STEPHEN P. McGLYNN

U.S. District Judge