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BUTTRON v. SHEEHAN

August 4, 2003

BONNIE BUTTRON, LAVERNE WILLIAMS AND LORETTA MCCLURE, PLAINTIFFS, VS. MICHAEL F. SHEEHAN, JAMES KELLY, JOHN MAUL, AND MARCUS LYLES, DEFENDANTS.


The opinion of the court was delivered by: Amy J. St. Eve, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs brought a twenty-two count complaint against Defendants, alleging various forms of sexual harassment, sexual discrimination and retaliation under Title VII and Section 1983. Defendants move for summary judgment. For the reasons stated herein, Defendants' motion is granted.

BACKGROUND

It is evident from the parties' filings that they need a refresher in both the Local Rules and Federal Rules of Civil Procedure. The parties propounded and responded to an overwhelming one-thousand sixteen statements of fact in this relatively simple Title VII case. Defendants initially filed a daunting four-hundred thirty-nine Statements of Uncontested Facts. Plaintiffs, not to be outdone, submitted five-hundred seventy-seven additional statements of fact.*fn1 [ Page 2]

Obviously, the Court had its work cut out to determine whether a genuine issue of fact existed for trial.

The Court quickly realized, however, that the speed of justice would be further reined in by the substance of the parties' statements of fact and responses. In the end, the parties failed in hundreds of their statements and responses to heed the Federal Rules of Civil Procedure and the Local Rules. With this realization and the record before it, the Court ordered the parties to file a chronology of events. (See R. 106-1, July 16, 2003 Order.) Plaintiffs failed to comply with this Order. (See R. 109-1.) Before proceeding with the merits, the Court will address the parties' errors.*fn2

I. Federal Rule Of Civil Procedure 56 And Local Rule 56.1

The Federal Rules of Civil Procedure require the Court to render a decision based on "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Fed.R.Civ.P. 56 (emphasis added). In responding to a motion for summary judgment, a party "must set forth specific facts showing that there is a genuine issue for trial." Id.

The Local Rules provide parties with specific details as to how litigants in the Northern District of Illinois should approach summary judgment motions and responses. Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the [ Page 3]

moving party contends there is no genuine issue." A party opposing a motion for summary judgment must file, inter alia, "a concise response to the movant's statement" that includes:

(A) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting material relied upon, and
(B) a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting material relied upon.
Local Rule 56.1(b)(3). The movant may oppose a respondent's additional facts with a "concise reply." Local Rule 56.1(a).

A. Conciseness

As just seen, the Local Rules twice emphasize that parties' filings shall be concise.*fn3 The Court has already discussed the number of statements propounded by both parties. Even the shear number, however, does not convey how bloated the filings are. Defendants' Statement of Facts is a relatively terse thirty-seven pages. Plaintiffs' Response weighs in at one-hundred one pages. Plaintiffs simultaneously filed a one-hundred nineteen page Counterstatement of Facts. Defendants' Reply to Defendant's Counterstatement was a back-breaking three-hundred pages. Needless to say, these last three filings do not meet the Local Rules' requirement that the responses and reply be concise. Schrag v. Dinges, 150 F.R.D. 664, 679 (D. Kan. 1993) (statements of material facts were "by no definition `concise'" where they were "rambling, [ Page 4]

repetitive, and comprise[d] [of] as many as ninety pages.")

B. Defendants' Statements of Uncontested Facts and Plaintiffs' Counterstatements

1. Failure to attach supporting material

As stated by Federal Rule of Civil Procedure 56, the evidence in support of or opposing summary judgment must be "on file" with the Court. Defendants fail to attach evidence supporting Statement of Fact No. 23. This statement is therefore stricken.

2. Failure to properly cite to supporting evidence

In addition to needing to attach evidence, movants and respondents must adequately cite to the appropriate part of the record that supports their position. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried" in the record). See also Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001) ("a lawsuit is not a game of hunt the peanut."). Defendants have not cited to any evidence in their Statement Nos. 5-8. These Statements are therefore stricken. Similarly, Plaintiffs have not complied with this rule with respect to several of their exhibits.

a. Exhibit 8

Plaintiffs' Exhibit 8 is a one-hundred twenty-six page transcript of Marcus Lyles' deposition testimony. Plaintiffs rely on Lyles' testimony in twenty-seven of their Counterstatements. Remarkably, Plaintiffs have cited to a wrong portion of the transcript in each instance. The referenced page has nothing to do with the underlying Counterstatement. Further, the correct page is not evident to the Court. Two instances of Plaintiffs' erroneous citations are saved by other evidence that is properly before the Court that supports the Counterstatements. [ Page 5]

The others, however, have no other support.*fn4 Accordingly, the Court strikes Plaintiffs' Counterstatement Nos. 31, 35-36, 40-47, 50, 59-60, 339-340, 343, 448, 452-455 and 534-536.

b. Exhibit 13

Plaintiffs claim that Exhibit 13 supports their Counterstatement Nos. 330, 343, 506, 508-509, 539 and 542. Plaintiffs describe Exhibit 13 as McNamara's deposition transcript. Exhibit 13, however, is a one-page mocked-up weight-loss advertisement. It provides no support to the underlying Counterstatements. Accordingly, the Court strikes Plaintiffs' Counterstatement Nos. 330, 343, 506, 508-509, 539 and 542.

c. Exhibit 50

Plaintiffs' Exhibit 50 is approximately three-hundred pages long. Plaintiffs routinely cite to tabs that do not exist within this exhibit. The Court has made a good-faith, but ultimately futile, effort to determine what portion of Exhibit 50 purportedly supports Plaintiffs' statements. Accordingly, the Court must strike Plaintiffs' Response Nos. 189 and 361, as well as Counterstatement Nos. 131, 462-68, 472-76, 493, 510-512 and 524-529.*fn5

d. Other Counterstatements not in compliance

The Court also strikes Plaintiffs' Counterstatement Nos. 136, 148-149, 190, 288, 333, 336, 351, 353, 401, 407, 457, 469-471, 548 and 551-552 because Plaintiffs have failed to provide [ Page 6]

proper and specific references or have mischaracterized the evidence.

3. Lack of specificity and conclusory statements

Plaintiffs attempt to put forth general, conclusory statements in their Counterstatements and Responses. They are inadequate. For example, in Statement No. 189, Defendants proffer an assertion that "Buttron does not believe that she has been subjected to retaliation for filing this lawsuit." In support, Defendants reference Buttron's deposition testimony. Plaintiffs' denial in their response cites, inter alia, to a declaration by Buttron that simply says, "I was subjected to extreme and pervasive retaliation following the filing of my complaint." Buttron provides no other details or specifics as to how Defendants manifested this retaliation.

Rule 56 requires a responding party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Conclusory statements of fact should be afforded no weight at the summary judgment stage. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990) (summary judgment is not a place "to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."). Instead, "the non-movant must allege specific facts creating a genuine issue for trial and may not rely on vague, conclusory allegations." Gabrielle M. v. Park-Forest-Chicago Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 822 (7th Cir. 2003) (emphasis in original). The specificity needed in sexual harassment cases includes an identification of the harassing party, along with the "when, where, or how often this alleged conduct occurred. . . . Those details are necessary to evaluate the severity and pervasiveness of the conduct." Id. In many instances, Plaintiffs fail to provide any level of detail needed to create an issue of material fact. Accordingly, the Court strikes Plaintiffs' Response No. 189, as well as Plaintiffs' Counterstatement Nos. 71, 73-75, 91-92, 115, [ Page 7]

122-129, 131, 135, 137, 164, 174, 224, 260, 271, 276, 280, 287, 291, 477-479 and 490-492.

4. Beliefs, speculation and lack of personal knowledge

Plaintiffs attempt to support many Counterstatements through deposition testimony where that witness has no personal knowledge of the subject matter of her statements. Such references cannot be used to establish the existence of a genuine issue of material fact. Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1267 (7th Cir. 1986). Similarly, Plaintiffs' Counterstatements include testimony as to witnesses' beliefs and inferences from others' statements and conduct. This strategy also fails to create a genuine issue of material fact. McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir. 1989). Accordingly, the Court strikes Plaintiffs' Counterstatement Nos. 69-71, 82-84, 125, 134, 155-156, 158, 173, 176, 223, 313, 320, 338, 344, 514, 519-20, 523 and 559, as well as the last sixteen words in Counterstatement No. 97.

5. Comments and conduct outside of Plaintiffs' presence or not affecting Plaintiffs

Plaintiffs seek to create an issue of fact by relying on inappropriate employee statements or conduct where there is no evidence that Plaintiffs overheard these statements, observed this conduct, or were affected by this conduct. While these facts may be relevant to show the employer's animus towards Plaintiffs' gender, Sutton v. Ill. Dep't. of Transp., No. 99 C 0265, 2003 WL 1719996, at *9 (N.D. Ill. Mar 31, 2003), Plaintiffs must have known of these statements and this conduct during the time they experienced the purported harassment for the evidence to be probative of a hostile work environment. Carter v. Chrysler Corp., 173 F.3d 693, 701 n. 7 (8th Cir. 1999). Although Plaintiffs put forth many statements concerning these types of statements and this kind of conduct, there is nothing in the record to show that they knew about [ Page 8]

them. Further, the facts have absolutely no probative value for this summary judgment motion, since Defendants do not argue whether the Cook County Sheriff's Office had animus toward women. Therefore, the statements uttered and the acts engaged in outside of Plaintiffs' presence are immaterial to the issues before the Court. Accordingly, the Court strikes Plaintiffs' Counterstatements Nos. 71, 76, 86, 98-110, 132, 135, 137-139, 145-146, 148-49, 150-154, 159-163, 165-166, 181-184, 186, 190-192, 195-198, 200-203, 214-222, 242, 247-248, 251, 263, 356-360, 365-386, and 408-409.

6. Reliance on hearsay

Plaintiffs rely on inadmissable hearsay in an attempt to show that summary judgment is not appropriate. This is improper. See Winskunas v. Birnbaum, 23 F.3d 1264, 1268 (7th Cir. 1994) (hearsay incapable of creating a genuine issue of material fact). Therefore, the Court strikes Plaintiffs' Response Nos. 173, 199, 200, 310 and 316, as well as Plaintiffs' Counterstatement Nos. 77, 136, 140, 149, 177, 187, 204, 206-207, 236-239, 281, 284, 300-301, 307-309, 390 and 503.

7. Duplicative statements

Plaintiffs submitted repetitive Counterstatements on multiple occasions. Accordingly, the Court strikes Counterstatement Nos. 401-403, 418, 420, 428-432, 434 and 445-446.*fn6 [ Page 9]

C. Improper Responses

1. No citation to opposing evidence

Under Rule 56.1, a party may not simply deny a statement of fact in a response. Instead, the party must provide "specific references" to the material that shows that a factual disagreement exists. Local Rule 56.1(b)(3)(A). Accordingly, the Court strikes Plaintiffs' Response No. 313 and Defendants' Response Nos. 11, 34, 38, 450,479, 490-491, 500 and 502 for failure to provide a citation to facts that evidence a dispute. The Court deems the underlying statements of fact uncontested.

2. Contradiction in declaration

On one occasion, Plaintiffs attempt to create a genuine issue of material fact by submitting an affidavit by Buttron that directly contradicts her deposition testimony. The Seventh Circuit has stated that under these circumstances the affidavit generally is entitled to "zero weight." Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 623 (7th Cir. 2002). The only exception to this general rule is where "the affiant gives a plausible explanation for the discrepancy." Id. Plaintiffs have not even attempted to provide an explanation for the discrepancy here. Accordingly, the Court strikes Plaintiffs' Response No. 189.

3. Inclusion of additional information in responses

Plaintiffs admit many of Defendants' Statements, but provide further information in their responses. This is inappropriate. McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998). Instead, a responding party must submit such facts that it wishes the Court to consider in a separate document. See Local Rule 56.1(b). Plaintiffs obviously understand this theory, since they correctly accomplished the task five-hundred seventy-seven times. Accordingly, the Court [ Page 10]

strikes Plaintiffs' Responses Nos. 37, 44, 50-52, 57, 67, 73-74, 76, 85, 87, 90, 92, 94, 99, 101-104, 112-113, 133, 163, 165, 188, 196, 202-03, 230, 234, 237, 239, 244-245, 247, 259, 275, 279, 285, 302, 305, 307, 309, 315, 325, 326, 335, 337, 340, 346, 355, 356-357, 363, 371, 373, 383, 397-398, 403, 430 and 436, and deems the underlying statements uncontested.

4. Mischaracterization of the propounded statement

Plaintiffs' responses often mischaracterize Defendants' statements in an attempt to gain a tactical advantage. For example, in Defendants' Statement No. 144, Defendants allege that "Buttron testified that Lyles was silent after she told him about her complaints and she left the hearing a few minutes later." Plaintiffs respond that they "admit that after Buttron complained to Lyles, Lyles did nothing in response." Such responses do Plaintiffs absolutely no good. First, they result in an admission of the entire statement, as phrased initially by the Defendants. Second, the Court ignores any additional facts that are stated in the responses. McGuire, 152 F.3d at 675. Accordingly, the Court strikes Plaintiffs' Responses Nos. 34, 45, 48, 55, 75, 78, 95, 109-110, 135, 138, 144, 180, 236, 254, 286, 318, 331, 332, 359-360, 364, 374, 377, 395-396, 409, 412, 415 and 434-435, and deems the underlying statements uncontested.

5. Denial of a statement that is clearly not in dispute

Plaintiffs attempt to create an issue of fact by denying some of Defendants' statements where there is no dispute. For example, Defendants assert in Statement No. 42 that "Buttron never complained to Lieutenant Kelly about sexual harassment." The support for this Statement comes straight from Buttron's deposition:

Q. Did you ever complain to Lieutenant Kelly about sexual harassment? [ Page 11]
A. No.

(Buttron Dep. at 293.) Plaintiffs deny Statement No. 42, claiming that "Buttron complained to Kelly about behavior that is legally sexual harassment/discrimination." (R. 98, Pls.' Response ¶ 42.) The material purportedly supporting this denial comes from another part of Buttron's deposition, where she testifies that she complained to Kelly about two events. First, she told Kelly that an officer would not give her a ride in a truck. Second, she informed Kelly that she felt subordinates were "leapfrogging" her by going directly to the lieutenant for orders. These two complaints do not amount to informing Kelly that there was sexual harassment or discrimination going on in the workplace. Accordingly, the denial is inappropriate.

Another example of such an improper response relates to Defendants' Statements 171 and 172. Defendants there discuss a general order on sexual harassment. Plaintiffs respond by claiming that Buttron never received a copy of the general order. This simply mischaracterizes her testimony. Although Buttron at first did not recall receiving the general order, she later recanted this statement upon seeing the document, and admitted to receiving it. (See Buttron Dep. at 311-315.) The Court strikes Plaintiffs' Response Nos. 42, 96, 108, 145-146, 161-162, 171-172, 177, 186-187, 198-200, 205, 213, 218-219, 224, 228-229, 253, 255, 260, 278, 284, 295, 297, 311, 313, 314, 330, 350, 358, ...


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