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KAPLAN v. CITY OF CHICAGO

November 2, 2004.

SHELLY KAPLAN, Plaintiff,
v.
CITY OF CHICAGO Defendant.



The opinion of the court was delivered by: BLANCHE MANNING, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Shelly Kaplan, a Chicago police officer, brought this action against the City of Chicago ("the City") alleging discrimination/harassment (based on her religion, Judaism) and retaliation, in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). The present matter comes before this Court on the City's Motion to Strike and Motion for Summary Judgment. For the reasons set forth herein, the Court GRANTS the Motion to Strike and GRANTS in part and DENIES in part the Motion for Summary Judgment.

MOTION TO STRIKE

  This Court will first rule on the City's Motion to Strike Portions of Kaplan's Northern District of Illinois Local Rule 56.1 Response and attached affidavit. The City contends that parts of Kaplan's response should be struck because she: (1) failed to cited to specific portions of the factual record; (2) included "additional facts" within her responses; (3) cited to non-existent factual records; and (4) responded with citations to conclusory, self-serving, and inadmissible evidence. Before addressing these specific contentions, this Court will first discuss the rules governing the obligations of the non-moving party under Local Rule 56.1. Local Rule 56.1(b) requires that the responding party submit a "concise response" to the movant's statement, which must contain "[a] response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to affidavits, parts of the record, and other supporting materials relied upon. . . ." Local Rule 56.1(b)(3)(A) (emphasis added).*fn1 A "general denial" to the movant's statement will not suffice, the nonmovant "must cite specific evidentiary materials justifying the denial." Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000).*fn2

  Furthermore, the non-movant's response is not "the place for purely argumentative denials." Id. Additional factual arguments should be submitted pursuant to Local Rule 56.1(b)(3)(B), which requires the responding party to submit "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 materials relied upon. . . ." Local Rule 56.1(b)(3)(B) (emphasis added). Rule 56.1(b)(3)(B) "provides the only acceptable means" for the opposing party to put forth additional facts. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316-17 (7th Cir. 1995) (emphasis added).

  Failure to comply with Local Rule 56.1 is not a "harmless technicality." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994). Not complying with these requirements results in the admission of the movant's facts. Local Rule 56.1(b)(3)(B) ("[a]ll material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party"); Malec, 191 F.R.D. at 584. The court is not required to scour the record to unearth material factual disputes or evidentiary support for a party's position. See, e.g., Carter v. Am. Oil Co., 139 F.3d 1158, 1162 (7th Cir. 1998). The parties must supply "specific references" to each factual assertion put forth or contested. Malec, 191 F.R.D. at 583-84. This requirement means that the party must include citations to facts which show the page (or paragraph) of the factual source. Id. Citations to depositions or affidavits generally will not suffice. Id. Accordingly, an opposing party who does not properly contest the movant's Rule 56.1(a)(3) facts is considered to have admitted those facts, to the extent that they are properly supported by the record. Rule 56.1(b)(3); Midwest Imports, Ltd., 71 F.3d at 1312; Tobey v. Extel/JWP, Inc., 985 F.2d 330, 333 (7th Cir. 1993).

  Additionally, although Rule 56.1 permits citations to affidavits, the non-movant may not raise a disputed material fact "by submitting an affidavit containing conclusory allegations which contradict plain admissions in [a] prior deposition." See Adusumilli v. City of Chicago, 164 F.3d 353, 360 (7th Cir. 1998). "[W]here a deposition and affidavit are in conflict, the affidavit is to be disregarded" and the court should only consider the deposition, "unless it is demonstrat[ed] that the statement in the deposition was mistaken." Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001).

  Here, after carefully reviewing Kaplan's Local Rule 56.1(b) Response, this Court concludes that Kaplan has completely disregarded the requirements set forth above. The Court will thus strike much of her response and deem the corresponding paragraphs in the City's Rule 56.1(a) statement admitted to the extent they are supported by the factual record.*fn3 Specifically, the Court will strike portions of Kaplan's response which she terms "additional facts" because she failed to follow Local Rule 56.1(b)(3)(B)'s requirements for asserting additional facts. Instead of submitting "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 materials relied upon," as required by Local Rule 56.1(b)(3)(B), Kaplan improperly added what she termed "additional facts" to her responses.*fn4 See Midwest Imports, Ltd., 71 F.3d at 1317 (Rule 56.1(b)(3)(B) "provides the only acceptable means" for the opposing party to put forth additional facts"). Additionally, the Court will strike portions of Kaplan's response where she failed to provide any citations to the factual record.*fn5 These paragraphs include but are not limited to: 9, 10, 17, 18, 26, 33, 34, 36, 38, 39, 42, 43, 48, 50, 55-58, 60, 68, 71-73, 79-81, 83, 85-86, 89, 90, 92, 94, 97-99, 101, 109, 111, 112, 117-119, 125, 128, 129, 135, 138, 141, 142, 146-149, 151, 156, 157, 160-164, 166, 169, 170, 175, 176, and 184.

  Furthermore, as detailed below, the Court will disregard Kaplan's responses which contain argumentative answers, cite to non-existent factual records, or cite to improper or inadmissible factual records, such as portions of Kaplan's affidavit, which contradict her deposition testimony, unnoticed depositions, and statements from undisclosed witnesses.

  MOTION FOR SUMMARY JUDGMENT

  With the above rulings in mind, the Court will now address the City's Motion for Summary Judgment.

  BACKGROUND*fn6

  Kaplan, who is Jewish, has been employed as a Chicago police officer since 1991. In 1993, she requested to be put on "limited duty" due to back problems and arthritis. According to Kaplan's doctor, she could not be placed in a position which required prolonged standing, walking, running, or lifting more than 20 pounds. The City granted her request and placed Kaplan in light duty positions, including working at the City's 311 non-emergency center as a call taker. While on limited duty, Kaplan received her regular salary and benefits.

  Request for Injured on Duty Status

  While working as a call taker at the 311 center, Kaplan made several requests to be put on "injured on duty status," which would have permitted her to take time off with full pay and benefits without using her "sick days." Whether an employee is eligible for injured on duty status is determined by the City's Committee on Finance.

  Kaplan's first two requests for injured on duty status, made in July 1995, were based on her contention that the "air" at the police station had made her sick. The City denied both of those requests in August of 1995, after conducting an investigation and concluding that there was no substantive proof that her alleged injuries occurred on the job. In August and November of 1996, Kaplan again sought injured on duty status based on the air quality at another police station. Those requests were likewise denied. In March of 1996, Kaplan again applied for injured on duty status, claiming that she injured herself while exercising at lunch. After conducting an investigation, the City denied this claim based on a lack of proof that the alleged injuries were sustained in the performance of her employment.

  Kaplan further requested injured on duty status in August of 2000, for a swollen finger, in March of 2001, after she tripped on her book bag, and in June of 2003, after she allegedly slipped on a wet floor. As with her other claims, the City denied each of these requests after conducting an investigation and concluding that there was no substantive proof that her alleged injuries occurred on the job.

  EEOC Complaints

  While working for the City, Kaplan filed nine complaints with the Equal Employment Opportunity Commission ("EEOC"). She brought her first complaint in December of 1995 for disability discrimination based on the City's failure to grant her injured on duty status after she allegedly became ill from the air at the police station. In September of 1996, Kaplan filed another EEOC charge alleging that the City retaliated against her for filing her first EEOC charge.

  In December of 1996, Kaplan made a third EEOC complaint again alleging retaliation and disability discrimination and also, for the first time, religious discrimination. Over the next five years (1997 to 2002), Kaplan made six more EEOC complaints alleging retaliation, disability discrimination, and religious discrimination based on the City's alleged failure to accommodate her religious practices.

  Promotional Exams

  Due to operational requirements and costs, the City only offers promotional tests to police officers on Saturdays. Unfortunately, for Kaplan, as a Jewish person who observes the Jewish Sabbath, her religious practices prevent her from taking Saturday exams before sundown. According to police procedure, the City worked with Kaplan to accommodate her religious beliefs. On at least two occasions, Kaplan took the promotional exams at a time other than regularly scheduled. For example, the City permitted Kaplan to take the 1993 sergeant exam after the conclusion of her Sabbath. To ensure the integrity of the test, a fellow police officer accompanied Kaplan throughout the day. In 1994, the City again accommodated Kaplan by allowing her to take the detective promotion exam before the start of the Jewish Sabbath, which begins at sundown on Friday. To ensure the integrity the test, after taking the exam on Friday afternoon, Kaplan stayed in a hotel with a fellow police officer, who also accompanied her on Saturday, until the regularly scheduled test was completed.

  Despite having reached an accommodation agreement in 1993 and 1994, Kaplan and the City were unable to reach an arrangement for her to take promotional tests in 1998, 1999, and 2002. As with the previous tests, the City offered to accommodate Kaplan by permitting her to take the promotion tests Saturday evening. To take the rescheduled test, however, the City required that Kaplan permit a Chicago policewoman and a female employee of the testing service to accompany her to her synagogue and watch her there the entire day while she attended Sabbath services and then accompany her to take the test that evening. The City contends that Kaplan had to be accompanied and watched all day to ensure the integrity of the tests. Although she had previously agreed to this or similar arrangements, Kaplan rejected these offers as unreasonable. Suspensions

  The City suspended Kaplan twice — once for five days for "abuse of medical roll" and for 30 days for unauthorized leave of absence. Under police regulations, when an employee makes a report of being injured on duty, she must report to the medical department within 24 hours and inform her commander. The City contends that in August of 1996 Kaplan failed to follow these requirements. As a result, the office of internal affairs ...


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