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August 24, 1993



The opinion of the court was delivered by: JAMES H. ALESIA

Before the court are the motions of Great Western Steel Company ("Great Western") to dismiss for lack of subject matter jurisdiction, for summary judgment, and to strike certain paragraphs of the plaintiff's affidavit in support of his response brief.


 Kenneth Burton, who is black, alleges that Great Western discriminated against him based on race by rehiring Scott Kocher and Dan McCarthy, two white men, instead of Burton in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e, et seq.

 Great Western hired Burton on July 16, 1987. Defendant's 12(m) Statement, at P 1. Great Western originally hired Kocher on October 19, 1987 and McCarthy on October 8, 1987. Id. at PP 2-3. All three men worked at Great Western's facility at 2300 West 58th Street in Chicago, Illinois, albeit on various different shifts. Burton and Kocher continued to work at Great Western until the company laid off several employees on October 28, 1988 due to a decrease in the workload at the plant. Id. at P 7. McCarthy had been on disability leave since September 16, 1988 when he injured his hand while working at Great Western. Id. at P 4. It is not clear whether McCarthy was among the employees laid off on October 28, 1988. Id. at PP 27, 29; Plaintiff's 12(n) Statement, at PP 27, 29. Great Western determined which employees would be "laid-off" pursuant to and in accordance with the terms of the collective bargaining agreement in effect between Great Western and Local #714 of the International Brotherhood of Teamsters ("CBA"), which required Great Western to lay off employees in the reverse order of their hire. Id. at P 9. Great Western allowed the employees to utilize their remaining vacation time to delay the effective date of the layoff and thus both Burton's and Kocher's layoffs became effective on November 7, 1988. Id. at P 8. The CBA also provided that in the event Great Western laid off employees, any employee who had worked for the company for one to five years would retain their seniority rights for six months. Defendant's 12(m) Statement, at P 6. Burton, Kocher, and McCarthy had all worked for Great Western for one to five years. Since Burton and Kocher used their remaining vacation time to delay the effective date of their layoff until November 7, 1988, Burton and Kocher lost their seniority rights under the CBA six months after that date. Id. at P 10. Thus, it is undisputed that Burton and Kocher no longer had seniority rights in September of 1989.

 During the month of September 1989, Jim Mumford, the assistant superintendent of the plant, indicated to Tony Stimac, the plant superintendent, that he needed another employee on his shift. Id. at P 12. Stimac offered Mumford the option of rehiring Kocher or Burton, both of whom had expressed interest in returning to Great Western after their seniority recall rights expired. Id. at P 13. Great Western rehired Kocher. Id. at P 19. Thereafter, Great Western rehired McCarthy. Id. at P 28. However, the facts regarding when McCarthy was laid off, if ever, and whether his seniority status had expired before he was rehired are in dispute.


 A. Motion to Strike Certain Paragraphs of Plaintiff's Affidavit

 As a threshold issue, the court will dispose of defendant's motion to strike because the disposition of this motion may affect the disposition of the remaining motions. Great Western moves to strike paragraphs 1, 2, 4, 9, 11 and 12 of Burton's Affidavit ("Affidavit"), Exhibit C to Plaintiff's Memorandum of Law and Response to Defendant's Motion for Summary Judgment ("Response Exhibit"). Defendant moves to strike paragraphs 1, 2 and 4 because they contradict plaintiff's deposition testimony and paragraphs 9, 11 and 12 because they are not based on the affiant's personal knowledge.

 First, defendant argues that paragraphs 1, 2 and 4 of plaintiff's affidavit contradicts plaintiff's sworn deposition testimony. At Burton's deposition, defendant asked plaintiff the following questions and received the following answers:

Q: Have you kept in touch with the Illinois Department of Human Rights, that they should prosecute and pursue this?
A: No, I haven't.
Q: You haven't. Have you followed up with them in any fashion after filing this charge?
A: Oh yes, we stayed in contact. One of the gentlemen called me. Well, actually he just called and left a message at a relative's house to where he had the number. But we hadn't spoken any more about it.
Q: He called, left a message, you didn't call him back?
A: No.

 Burton Deposition, at 97-98. In paragraph 1 of his affidavit, plaintiff states that he fully cooperated with the Illinois Department of Human Rights ("IDHR"), from the time he filed his complaint on January 10, 1990, until he received his "Notice of Right to Sue" letter on September 26, 1990. In paragraph 2, plaintiff states that after his step-mother received a telephone call from the IDHR during the summer of 1991, he returned the telephone call and informed the IDHR he was proceeding with his lawsuit against the company. In paragraph 4, plaintiff states that as a result of his contact with the IDHR during the summer of 1991 he believed nothing further was required of him by the IDHR.

 The court denies defendant's motion to strike as to paragraph 1 and grants the motion as to paragraphs 2 and 4. The court agrees with the plaintiff that paragraph 1 of the affidavit and the deposition testimony are not inconsistent. Since the phone call or phone calls from the IDHR were placed on or after June 18, 1991, they can have no bearing on plaintiff's cooperation and assistance between the time he filed his complaint with the IDHR on January 10, 1990 and the date he received his "Notice of Right to Sue" letter on September 26, 1990. See Defendant's Rule 12(m) Statement, at P 39-40. As to paragraphs 2 and 4, however, the court agrees with the defendant that the affidavit directly contradicts the affiant's sworn deposition testimony. Plaintiff argues that his deposition statements that "we stayed in contact" and that "we hadn't spoken any more about it" imply that the plaintiff did communicate with the IDHR but after informing the IDHR that he had a federal lawsuit pending he and the IDHR "hadn't spoken any more about it." Plaintiff's Response to Defendant's Motion to Strike Plaintiff's Affidavit, at 3. Plaintiff's argument is belied by his very next statement in the deposition. Plaintiff was asked whether someone "called, left a message, you didn't call him back?" Burton Deposition, at 98. Plaintiff responded "No." Id. The Seventh Circuit "has consistently held that a genuine issue of material fact cannot be established by a party contradicting his own earlier statements unless there is a plausible explanation for the incongruity." Bank Leumi Le-Israel B.M. v. Lee, 928 F.2d 232, 237 (7th Cir. 1991) (citations omitted). Since the court finds plaintiff's explanation of the apparent contradiction implausible, the court strikes paragraphs 2 and 4 of Burton's affidavit.

 Second, defendant argues that paragraphs 9, 11 and 12 of plaintiff's affidavit should be stricken because they are not based on personal knowledge. In paragraph 12, plaintiff asserts that to the best of his knowledge Kocher never performed the job of slitter helper at Great Western prior to the October 28, 1988 lay-off. In paragraph 9, plaintiff asserts that the slitting machine is not a complicated piece of machinery and does not require the operator or helper to possess great skill and ability. In paragraph 11, plaintiff asserts that he was qualified to be trained as a slitter helper and the training could be accomplished in one week.

 Federal Rule of Civil Procedure 56(e) requires that "supporting and opposing affidavits be made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, an affidavit not based on personal knowledge cannot be considered by the court in ruling on a motion for summary judgment. Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989). Furthermore, statements in affidavits made "upon information and belief" that the fact alleged is true do not satisfy the requirement of personal knowledge. United States v. Crispen, 622 F. Supp. 75 (N.D. Ill. 1985). However, ...

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