O'Toole v. Acosta
| Decision Date | 26 March 2018 |
| Docket Number | Case No. 14-cv-2467 |
| Parties | THOMAS O'TOOLE, Plaintiff, v. R. ALEXANDER ACOSTA, Secretary of Labor, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas O'Toole sued his former employer, the Department of Labor (DOL), for alleged violations of the Rehabilitation Act, 29 U.S.C. § 701 et seq., and for alleged spoliation of evidence under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. [33]. Defendant moved for summary judgment [95], and Plaintiff cross-filed for partial summary judgment, [104]. For the reasons explained below, this Court denies Plaintiff's motion and grants Defendant's motion.
The facts in this discussion come from the parties' Local Rule 56.1 statements of material fact.2 Defendant asks this Court to deem a number of its statements of fact admitted as a result of Plaintiff's inadequate responses. [111] at 2-3. ThisCourt has broad discretion to enforce the local rules governing summary judgment motions. See, e.g., Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014). Under those rules, simply denying a fact that has evidentiary support "does not transform it into a disputed issue of fact sufficient to survive a motion for summary judgment," and this Court may disregard improper denials. Roberts v. Advocate Health Care, 119 F. Supp. 3d 852, 854 (N.D. Ill. 2015) (citation omitted); see also Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). Thus, purely argumentative denials, legal conclusions, and unsupported general denials do not belong in Local Rule 56.1 statements. See Phillips v. Quality Terminal Servs., LLC, 855 F. Supp. 2d 764, 771 (N.D. Ill. 2012); Malec, 191 F.R.D. at 584; Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000) (). A proper denial must "cite specific evidentiary materials justifying the denial." Malec, 191 F.R.D. at 584.
Here, this Court takes into account Plaintiff's pro se status. Pro se plaintiffs normally receive "flexible treatment," but that courtesy does not extend to "pro se litigants who are attorneys." See Cole v. C.I.R., 637 F.3d 767, 773 (7th Cir. 2011). Plaintiff admits that he is a licensed attorney in Ohio. R. DSOF ¶ 53. Moreover, even pro se litigants "must follow the rules of civil procedure," Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)), and district courts may strictly enforce them, particularly where the litigant received an explanation of the relevant rule, see id.; Coleman v. GoodwillIndus. of Se. Wis., Inc., 423 F. App'x 642, 643 (7th Cir. 2011). Plaintiff received an explanation of the summary judgment procedures here. See [98].
Accordingly, this Court disregards the following denials from Plaintiff's response to Defendant's statement of facts:
See Phillips, LLC, 855 F. Supp. 2d at 771 (); Malec, 191 F.R.D. at 584 (). Defendant's corresponding statements of fact are deemed admitted. See Phillips, LLC, 855 F. Supp. 2d at 771.
As an exercise of discretion, this Court declines to strike Plaintiff's statement of additional facts wholesale for Plaintiff's failure to separate his additional facts from his response to Defendant's statement of facts, in accordance with this Court's local rules. See [106] at 60; Local R. 56.1(b)(3)(C). But those statements of fact must still contain "specific references to the record" and rest upon admissible evidence. Malec, 191 F.R.D. at 584, 585; see also Gunville v. Walker, 583 F.3d 979,985 (7th Cir. 2009) (). Accordingly, this Court strikes the following statements of additional facts: the second half of paragraph 81, which lacks citation to the record; paragraph 83, because the cited material does not support the statement; and paragraph 84 (misnumbered 85) for the same reason. See [106] at 60.
Plaintiff worked for DOL's Bureau of Labor Statistics (BLS) as a statistician from February 2012 to August 2014. DSOF ¶¶ 1, 75; R. DSOF ¶ 1; [33] ¶ 10. Plaintiff has Type 2 diabetes, which he disclosed on his first day of work. DSOF ¶ 2; [107] at 7. Plaintiff admits that he did not then request an accommodation for his disability, but states that within his first few days at BLS he discussed his need to take consistently timed meals with his supervisor, Autumn Nguyen. DSOF ¶ 1; [107] at 7. Given the circumstances, Plaintiff and Nguyen foresaw no reason that this would pose a problem, especially in light of Plaintiff's schedule and right to a lunch break. [107] at 7; [97-12] at 3.
Plaintiff worked in BLS' Chicago Regional Office, starting at the GS-12 government pay grade. DSOF ¶ 1; [107] at 6. BLS assigned him to its Division of Price Programs, which collects data for the Producer Price Index (PPI). DSOF ¶ 1; [107] at 6. Plaintiff's job as a field statistician required him to visit private businesses, secure their agreement to provide data on their products for inclusion in the PPI, and obtain additional information on those products from buyers. DSOF ¶ 3; [107] at 6. After Plaintiff collected that information, he had to submit it to the BLS office in Washington, D.C., in the form of written "schedules" containinginformation on the businesses, goods, and pricing. DSOF ¶ 3. These schedules needed to meet BLS' internal deadlines and quality parameters. Id. Plaintiff's Performance Management Plan—which he signed on his first day—evaluated his work with respect to four "result elements": collecting quality data, collecting data efficiently, timely collecting and submitting data, and supporting DOL's mission. See [97-7] at 2-6.3
To meet with businesses and collect data, statisticians like Plaintiff were required to travel within their regions. DSOF ¶ 4; [97-5] at 17; [97-2] at 6, 8. The position description does not specify that the job involves interstate travel, but does state that travel is "extensive," frequent, and that the job requires the ability to drive. [97-2] at 8.
The statistician position also incorporated a lengthy certification process. DSOF ¶ 5. New hires attended a course in Washington, D.C., and had to pass a written test. Id. ¶ 6; [107] at 8. Next, statisticians like Plaintiff participated in on-the-job training (OJT), which involved shadowing a mentor, conducting appointments under the mentor's observation, observing the mentor's data collection, and collecting "at least four productive schedules" under observation. DSOF ¶ 7; [107] at 8. If these schedules were completed successfully, a statistician could receive "interim certification," permitting them to collect data independently,though a more senior BLS employee would still fully review any work they produced ("100% review"). DSOF ¶ 7; [97-8] at 20. Once statisticians began independent data collection, they had to successfully complete additional schedules to receive final certification. See DSOF ¶ 8; [97-8] at 20-21. If five consecutive schedules met the quality parameters, the statistician could move from 100% review to 10% review. DSOF ¶ 8. This phase ordinarily took two to four months. [97-8] at 21. The final step before certification required statisticians to complete two interviews with businesses while observed by their mentor, and have the data for five schedules verified by a more senior BLS employee. See DSOF ¶ 9.
All BLS employees had to record their hours worked in PeopleTime, DOL's timekeeping software, and submit reports itemizing how they spent those hours. Id. ¶ 10. BLS employees could work different schedules, including the "fixed" schedule—five, eight-hour days with a 30-minute unpaid lunch break—and the "flexible" or "variable" schedule, which permitted employees to vary their hours as long as they completed eighty hours each biweekly pay period. Id. ¶ 11; [107] at 46 (). Either schedule entitled employees to a 30-minute lunch break and two 15-minute breaks per day. See [97-12] at 3; [107] at 47. Employees on the variable schedule also needed to sign in and out of the office each day. DSOF ¶ 11; [107] at 51-52.
Plaintiff states that when he started at BLS, Nguyen told him that he had to work a "fixed schedule." [107] at 15. Plaintiff admits, however, that union rules show that employees could opt out of default schedules. See R. DSOF ¶ 11 Theparties dispute the evidence as to Plaintiff's schedule, and compliance with these rules, as discussed below.
Plaintiff successfully completed the price certification training course and exam in March 2012. DSOF ¶ 13. At this point, Sharon Isaac, a senior economist based in BLS' Milwaukee office, became Plaintiff's OJT mentor. See id.; [97-9] at 2. Plaintiff also received observational mentoring from Mary...
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