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CURDE v. XYTEL CORP.

October 24, 1995

ILEANA CURDE, Plaintiff,
v.
XYTEL CORPORATION, Defendant.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Ileana Curde brings this two-count complaint against Defendant Xytel Corporation, alleging that she endured a sexually harassing environment while working for Xytel, and that she was constructively discharged because of her complaints of harassment. Defendant moves for summary judgment or both counts, arguing that Curde has failed to introduce evidence demonstrating that she endured a hostile work environment at the company, or that she was forced to quit her employment because of her complaints. Defendant also moves to strike certain portions of Plaintiff's submissions made in response to the motion for summary judgment. For the reasons set forth below, the defendant's motion to strike and its motion for summary judgment are denied.

 Plaintiff began her employment with Xytel in December 1992 as one of two computer assisted design ("CAD") operators. The other CAD operator in the division, Recto Santos, worked in close proximity to Curde. During a two-week period in December 1992, Santos placed his hands on Curde's hands and face when helping her become acquainted with her position. Curde complained of this behavior to her supervisor, Ms. Artie Patel, who referred the matter to the group manager, Mr. Vinod Patel (no relation to Ms. Patel). Mr. Patel immediately spoke with Santos about Curde's complaints, and the touching stopped.

 Plaintiff contends, however, that Santos continued to harass her and make her job more difficult because she was a woman. She claims that he withheld information she needed to complete her assignments, removed drawings and computer discs from her desk without her knowledge, erased files from her computer without her permission, obstructed her ability to utilize the shared printer, and told co-workers not to help her. *fn2" She also claims that Santos verbally harassed her by (1) telling her that he hated women and only wanted to use them for sex, (2) making sarcastic remarks after she returned from lunch meetings with her male friends, and implying that she actually had gone to have sex with them, (3) repeatedly asking Curde why she didn't move into the house of a male co-worker with whom she ate lunch, (4) asking her personal questions about her family, boyfriend, and former husband, and (5) one time in August 1993, yelling at her in a threatening manner "Fuck you, I don't trust you!" *fn3" In addition, Santos is also alleged to have repeatedly blocked access to Curde's desk with his garbage can.

 Although Ms. Patel was not present for the great majority of these incidents, Plaintiff contends that she complained several times to Ms. Patel and Mr. Patel about Santos's conduct, but they refused to take any action. Consequently, in March 1994 Plaintiff went to Xytel's president, Bob Lo, to complain about the harassment. Lo held a joint meeting with Curde, Santos, and their supervisors, at which time Lo decided to move Curde and her group to a new location in the building so that Santos and Curde would be seated apart from each other and another supervisor would always be present. However, Curde claims that in this new arrangement she would still be required to sit adjacent to Santos, and that the new supervisor would not be present for much of the day since his duties frequently required him to be out of the office area. In addition, Curde claims that Lo said if she couldn't work together with Santos, she could resign. Curde reported to her new assignment for only a short period of time *fn4" before concluding that she could not endure the conditions any longer. She left Xytel and filed this lawsuit, claiming that she was exposed to a hostile work environment, and constructively discharged because of her complaints of sexual harassment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ┬ž 2000e-2(a)(1).

 Defendant now moves for summary judgment on both counts, arguing (1) that Curde has failed to demonstrate that she was exposed to a hostile work environment, (2) that Xytel's prompt corrective action bars her claim against the company, and (3) that Curde's employment conditions were not so intolerable as to consider her constructively discharged.

 We first address Xytel's motion to strike. Defendant asks us to strike portions of the plaintiff's submissions in response to the motion for summary judgment on the ground that these statements do not comply with the requirements of General Rules 12(M) and 12(N) of the United States District Court for the Northern District of Illinois ("Local Rule 12(M)" and "Local Rule 12(N)"). Local Rule 12(M) requires a party moving for summary judgment to submit "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law." In response, Local Rule 12(N) requires the non-movant to submit "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references the affidavits, parts of the record, and other supporting materials relied upon." In addition, Local Rule 12(N)(3)(b) requires the non-movant to submit "a statement, consisting of short numbered paragraphs, of any additional facts that requires the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." If either the movant or the non-movant fails to properly respond to a material fact set forth in the opponent's statement, such fact will be deemed admitted. Local Rules 12(M), 12(N)(3)(b). In other words, "if the party opposing summary judgment fails to respond to the facts set out by the movant, the court may assume those facts to be admitted and use them in determining whether the movant is entitled to judgment as a matter of law." LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389 (7th Cir. 1995). Xytel contends that Plaintiff's responses to paragraphs 4, 7, 8, 9, 11, 13, and 14 of its Local Rule 12(M) statement are improper because they contain additional, qualifying information not permitted by the rule, and thus should be stricken. Defendant also argues that paragraphs 17, 18, and 19 of Plaintiff's Local Rule 12(N)(3)(b) statement of additional facts should be stricken because Curde's affidavit in support of these statements is contradicted by her own deposition testimony.

 To be sure, we have the authority to strike the submissions of the parties if they violate the requirements of Local Rules 12(M) and 12(N). See Rosemary B. v. Board of Educ. of Community High Sch. Dist. No. 155, 52 F.3d 156, 158-59 (7th Cir. 1995). However, we do not believe that Curde's submissions deserve such treatment. The additional factual assertions made in paragraphs 4, 7, 8, 9, 11, 13, and 14 of Curde's 12(N) response do not directly contradict the affirmance or denial that she makes to each corresponding 12(M) statement; rather, these additional statements either clarify the extent to which Plaintiff agrees with the Defendant's statement, or point out exactly how she disagrees with it. For example, in response to the defendant's claim that Santos "neither made any statements of a sexual nature to Plaintiff nor engaged in any conduct of a sexual nature" after December 1992, Defendant's 12(M) P 7, the plaintiff denies that Santos stopped making sexual comments or remarks after December 1992, and affirmatively asserts that Santos continued to engage in sexually harassing behavior after that time. Her response then details Santos's sexually related and non-sexually related harassment of her after December 1992. While such information could have been included in her statement of additional facts, we do not believe that its placement in the responsive section of her 12(N) statement justifies granting a motion to strike. Similarly, in her response to paragraph 8, Curde states that she partially agrees with the nine statements of fact contained in Defendant's 12(M), *fn5" but disagrees with some of the characterizations or quotations. We recognize that parties are not permitted to admit the veracity of a 12(M) statement, and then in the same breath qualify or contradict their admission with additional facts. See Callahan v. City of Rockford, No. 90 C 20090, 1994 U.S. Dist. LEXIS 3320, 1994 WL 92391, at *4 (N.D. Ill. Mar. 4, 1994), aff'd, 41 F.3d 1510 (7th Cir. 1994). However, in this case we do not read any of Plaintiff's additional statements as contradictory, but as explanatory of her responses. Accordingly, we deny Defendant's motion to strike portions of paragraphs 4, 7, 8, 9, 11, 13, and 14.

 Defendant also challenges the plaintiff's statements of additional facts in paragraphs 17-19 of her 12(N) response. Xytel contends that these statements, and Curde's affidavit supporting them, are directly contradicted by Plaintiff's prior deposition testimony, and thus cannot be used to argue that material issues of fact remain in dispute. In this circuit, "where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken." Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 379 (7th Cir. 1995) (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995)); see also Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993) ("Self-serving affidavits without factual support in the record will not defeat a motion for summary judgment."). Again, however, we find that Plaintiff's submissions do not fall within this rule.

 In paragraph 17, Plaintiff asserts that when she would "go out to lunch with male co-workers Santos would repeatedly ask when they had gone and sarcastically reply that Plaintiff had gone out to have sex, not eat lunch." Defendant correctly points out that neither Plaintiff's affidavit nor her deposition testimony supports the contention that Santos verbally accused her of a mid-day tryst; rather, both sources indicate that Santos implied that Curde was having sexual relations with other men. Curde Affidavit P 5; Trans. at 150-52. *fn6" In response to the motion to strike, however, Plaintiff concedes this point and effectively amends her 12(N) statement to comport with her testimony. Thus, because Plaintiff has adequately clarified paragraph 17, we see no conflict between this statement and her prior testimony and therefore decline to strike the statement from our consideration.

 Defendant next challenges paragraph 18, which states that Santos asked Curde several times why she did not move in with her co-worker Frank Calderone. Xytel argues that this statement is inconsistent with Curde's deposition testimony, in which she stated that Santos made this remark "one time." Trans. at 152. However, the deposition statement referred to by Xytel was just one sentence in a two-paragraph answer. Curde was never asked how many times Santos made such a statement, and only a few sentences later in the deposition she reaffirmed her claim that Santos ...


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