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WATSON v. HOME DEPOT USA

July 31, 2003

KELLIE R. WATSON, PLAINTIFF,
v.
HOME DEPOT USA, INC., DEFENDANT.



The opinion of the court was delivered by: Harry Leinenweber, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Kellie R. Watson ("Watson") filed a six-count Second Amended Complaint against Home Depot U.S.A., Inc. ("Home Depot") and its former employee, Victor W. Terrell ("Terrell"). In her complaint, Watson asserted claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Counts I and II), and a claim of negligent hiring and retention (Count III) against Home Depot. She also asserted state law claims of assault (Count IV), battery/rape (Count V), and intentional infliction of emotional distress (Count VI) against Terrell. On February 4, 2002, the Court dismissed Count III for lack of subject matter jurisdiction and on October 25, 2002, the Court dismissed Counts IV through VI because Watson had failed to serve Terrell with a copy of the complaint. Home Depot now moves for summary judgment on Counts I and II, Watson's only remaining claims. For the following reasons, the Court grants the motion and dismisses this action in its entirety. [ Page 2]

I. BACKGROUND

A. Local Rule 56.1 Responses

Local Rule 56.1 of the United States District Court for the Northern District of Illinois ("Local Rule 56.1") establishes procedures that both the moving and opposing parties must follow in filing and responding to a motion for summary judgment. Under Local Rule 56.1, the moving party must submit a statement of material facts with "references to the affidavits, parts of the record, and other supporting materials relied upon." Local Rule 56.1(a)(3). In turn, the opposing party must file "a response to each numbered paragraph in the moving party's statement," and, in the case of disagreement, provide specific references to supporting evidentiary material. Local Rule 56.1(b)(3)(A). If the opposing party wishes to present additional facts that require the denial of summary judgment, it must do so in a concise statement that is also supported by citations to the record. Local Rule 56.1(b)(3)(B).

Although Watson, who now proceeds pro se, is entitled to a more lenient standard in some instances, she is not released from compliance with procedural rules. Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994). Indeed, Home Depot provided Watson with the required "Notice to Pro Se Litigants Opposing Summary Judgment," which explains the purpose of summary judgment, Watson's obligations to respond to Home Depot's motion, and the consequences of not doing so. See Local Rule 56.2. Despite receiving this [ Page 3]

notice, Watson's submissions do not conform to two critical requirements set forth in Local Rule 56.1(b). First, she fails to file any response to Home Depot's Rule 56.1 Statement of Material Facts (the "56.1 Statement") as required by Local Rule 56.1(b)(3). If the opposing party does not controvert the moving party's statement of material facts, those facts are deemed to be admitted for the purposes of the motion. Local Rule 56.1(b)(3)(B); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). As a result, all of Home Depot's Rule 56.1 facts that are supported by the record must be deemed admitted.

Second, none of the facts set forth by Watson in a document titled List of Facts refer appropriately to admissible supporting evidence. Indeed, only paragraphs 1, 6, and 10 even cite to a supporting document. Paragraph 1 cites to a "forensic Report," but the only document that fits this description gives no support to the contentions in paragraph 1. Paragraph 6 merely refers the Court to "see attached," which is of little guidance given the numerous documents that Watson has attached to her List of Facts. Nevertheless, a review of the attached documents does not reveal any support for Paragraph 6. Paragraph 10 directs the Court to the attached "Employee Statements," which Home Depot correctly argues are inadmissible. These statements are interviewer's notes of conversations with third parties and are, therefore, double hearsay. Dority v. City of Chicago, No. 98 C 4893, 2001 WL 1155286, at *2 (N.D. Ill. Sept. 28, 2001). The documents themselves could perhaps be admissible and self-authenticating [ Page 4]

under the business records exception to the hearsay rule, see FED. R. EVID. 803(6), but there is no evidence that these exhibits meet the requirements of Rule 803(6). Moreover, the third parties' statements contained in the documents are hearsay and cannot be considered for their truth. Any facts set forth in a 56.1 Statement that are "not properly supported by the record evidence must be disregarded." Naughton v. Sears, Roebuck & Co., No. 02 C 4761, 2003 WL 360085, at *1 (N.D. Ill. Feb. 18, 2003). As a result of Watson's failure to respond to Home Depot's statement of facts and her failure to set forth additional facts in compliance with Local Rule 56.1, the Court draws the background facts of this case from Home Depot's 56.1 Statement. The Court will not, however, consider any evidence adduced by Home Depot that is inadmissible pursuant to Federal Rule of Evidence 412.

B. Facts

1. Watson's Employment and Orientation

In August 1999, Home Depot hired Watson as a sales associate for its North Avenue store in Chicago, Illinois. Shortly after being hired, Watson participated in Home Depot's orientation program, which lasted for about two weeks. Like all Home Depot employees, Watson received copies of Home Depot's Respect, Harassment/Discrimination, Equal Employment Opportunity, and Open Door Policies as well as training on those polices. The Harassment/Discrimination Policy prohibits harassment or discrimination and states that "[a]nyone who condones or fails to take appropriate action to address a violation of Home Depot's [ Page 5]

harassment/discrimination policy will be subject to disciplinary action up to and including termination." It further "prohibits retaliation against any associate who comes forward to report harassment and/or discrimination." The policy emphasizes the importance of reporting any harassing or disrespectful behavior and sets forth resources that an employee may use if they feel that the policy has been violated. These resources include contacting a member of management, the Store Manager, District Manager, Human Resource Manager, or Division Vice President of Human Resources, or using the Alert Line, a phone line that enables employees to report harassment anonymously. Watson also participated in a Respect for All People training program, which further addressed workplace harassment and discrimination issues and which again informed employees about procedures available at Home Depot for resolving harassment or discrimination concerns.

A few months after hiring Watson, Home Depot transferred her to the Pro Sales Department, where her responsibilities included building relationships with and selling products to industrial, commercial, and other business customers. She appears to have performed her job satisfactorily and received a raise on July 3, 2000.

2. The Performance Notice

In the afternoon of July 13, 2000, however, Watson received an Associate Performance Notice (the "Performance Notice") for allegedly violating company policies or procedures. According to the Performance Notice, Watson's supervisors in the Pro Sales [ Page 6]

Department, Terrell, who served as Assistant Store Manager, and Ford Neubert ("Neubert"), the Department Supervisor, found Watson in a friend's car in the Home Depot parking lot while she was supposed to be at her desk. Terrell and Neubert prepared the Performance Notice, which warned Watson to stay at her desk in the future and Terrell asked Watson to "clock out and go home." The Performance Notice was placed in Watson's file, but Home Depot took no further disciplinary action for this incident. Indeed, despite the fact that Watson had only worked for part of that day, Home Depot paid her for a full shift.

3. Events After July 13, 2000

Watson's relationship with Home Depot changed swiftly in the wake of the parking lot incident. Before leaving the store on July 13, she complained to Co-Store Manager, Al Stermer, about the confrontation and about being sent home for the day. Watson also contacted Home Depot's Midwest Region Human Resources Manager, James Owens ("Owens"), that day to complain that Terrell had belittled her and disciplined her unfairly.

According to a sworn statement that Watson submitted to Home Depot on July 24, 2000, and which Home Depot attaches as an exhibit to its 56.1 Statement, on July 14, Watson learned that her work schedule had been changed. Instead of working Monday to Friday from 8:00 a.m. to 5:00 p.m., she was now expected to work on the weekends with two weekdays off. As a single mother, Watson found this change burdensome and also complained about it to Owens. [ Page 7]

On July 20, 2000, Owens called Jay Tippieconnic ("Tippieconnic"), the Store Manager, to tell him that Watson had complained about a write-up she received. The next day, after a week of confusion about Watson's new schedule, Tippieconnic met with Watson to discuss the entire situation. During their conversation, Watson broke down and explained that the situation went beyond the write-up. She described how on April 6, 2000, Terrell had followed her home during lunch, had asked to come into her apartment, and had then forced her into having sex with him. In Watson's statement, she alleges that she also described Terrell's poor treatment of her, but it is unclear what poor treatment she described. After hearing Watson's story, Tippieconnic sent Watson home, telling her he would pay her for the rest of that day and for the weekend and assuring Watson that he would have Michelle Williams ("Williams"), a Loss Prevention Specialist with whom Watson appeared to be comfortable, ...


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