# Jackson v. American Water Co.

> District Court, S.D. Illinois · August 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10155431

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** August 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155431. Public record. Not legal advice.