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HUDGENS v. WEXLER

January 3, 2005.

SHADRACK H. HUDGENS, Plaintiff,
v.
WEXLER AND WEXLER, ATTORNEYS, and NORMAN PAUL WEXLER Defendants.



The opinion of the court was delivered by: MARK FILIP, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Shadrack A. Hudgens ("Plaintiff" or "Hudgens") filed an amended complaint (D.E. 19)*fn1 on July 2, 2001, against Defendants Wexler and Wexler, Attorneys, and Norman Paul Wexler (collectively, "Defendants") alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), for discriminatory discharge based on race and unlawful retaliation (Counts I and II), and a violation of the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. § 1161 et seq. ("COBRA") and the Employee Retirement Security Act of 1974, 29 U.S.C. §§ 1001 et seq. ("ERISA"), for failure to notify Plaintiff of his rights to continue his healthcare coverage (Count III). The case is before the Court on Defendants' Motion for Summary Judgment ("Motion") on all counts. (D.E. 46.) For the reasons stated, infra, the Motion is granted in part and denied in part.

BACKGROUND

  I. Local Rule 56.1

  Before reciting the factual background of this case, the Court is compelled to comment on the parties' compliance (and non-compliance) with Northern District of Illinois Local Rule 56.1 ("L.R. 56.1") in this case. L.R. 56.1 requires that statements of facts contain allegations of discrete material facts, and the factual allegations must be supported by admissible record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000) (Castillo, J.). The Seventh Circuit teaches that a district court has broad discretion to require strict compliance with L.R. 56.1. See, e.g., Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v. Kwon, 153 F.3d 481, 486 (7th Cir. 1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995) (collecting cases)). The Seventh Circuit and district courts have not been wedded to enforcement of the local rule as a matter of mere formalism. Rather, precedent acknowledges that it is a "reasonable judgment" that "consistent, `bright-line' enforcement is essential" — not only in promoting compliance with the local rule, but even more importantly — "to ensuring that [the] long-run aggregate benefits in efficiency" that L.R. 56.1 is intended to produce are realized for the system of justice in the Northern District. Koszola, 385 F.3d at 1109 (collecting cases; citations and internal quotation marks omitted); accord, e.g., Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995).

  In this case, each of the parties variously has violated L.R. 56.1. For example, both parties have made numerous affirmative statements of fact without offering proper evidentiary support, and the Court will not consider those statements. See, e.g., Malec, 191 F.R.D. at 583 ("Factual allegations not properly supported by citation to the record are nullities."). Additionally, Defendants improperly filed a Reply to Plaintiff's Answer to Statement of Material Facts Under Rule 56. (See D.E. 59 at 1-4.) While Defendants are permitted to file a response to Hudgens's statement of additional facts, see L.R. 56.1(a), nowhere does the rule state that a movant may reply to the responses of the non-movant. Thus, while the Court will consider the latter half of Defendants' Reply, which responds to Hudgens's additional statements of fact, the Court will not consider the unnecessary and improper "replies" to Plaintiff's responses. See Schulz v. Varian Med. Sys., Inc., 315 F. Supp. 2d 923, 925 n. 1 (N.D. Ill. 2004) (Castillo, J.); accord Kozlowski v. Fry, 238 F. Supp. 2d 996, 1000 n. 2 (N.D. Ill. 2002) (Keys, M.J.) (citing White v. Sundstrand Corp., No. 98 C 50070, 2000 WL 713739, at *2 (N.D. Ill. May 23, 2000) (Reinhard, J.), aff'd, 256 F.3d 580 (7th Cir. 2001)). Each side also fails to provide foundation for numerous documents that it uses to support its statements and denials. But as neither side objects to these exhibits on an evidentiary basis, and those objections are thus arguably waived, see Fed.R. Evid. 103(a), the Court will consider the documents to the extent they are relevant and not plainly inadmissible.

  The Court also notes L.R. 56.1's provision that deems admitted for purposes of summary judgment any statement of fact not controverted by the statement of the opposing party. See L.R. 56.1(a), (b)(3)(B). Both parties have improperly denied a number of factual assertions by failing to provide adequate or proper record support — sometimes by failing to provide any record support at all — for their denials. Thus, where those factual assertions are properly supported by evidence in the record, the Court deems them admitted. See, e.g., Malec, 191 F.R.D. at 584 ("[A] general denial is insufficient to rebut a movant's factual allegations."); id. (failure to adhere to L.R. 56.1 requirements, including citation to specific evidentiary materials justifying denial, is equivalent to admission). The Court will note such deemed admissions throughout its recitation of the relevant facts below. II. Facts*fn2

  Mr. Shadrack H. Hudgens is an African-American male. (Defendants' Statement of Material Facts (D.E. 47) ("Def. SF") ¶ 1 (admitted).) Defendant Wexler & Wexler is a firm operated by a sole proprietor, Norman P. Wexler, which employs over 20 full-time employees, and which in 1999 offered health insurance under a group plan. (Def. SF ¶ 2 (admitted); Plaintiff's Amended Local Rule 56 Statement of Additional Facts in Opposition to Summary Judgment (D.E. 57) ("Pl. SAF") ¶ 2 (admitted).) Hudgens was hired by Wexler & Wexler in 1993 into the position of collector within the collections department. (Pl. SAF ¶ 1 (admitted).) Several days after he was hired, Hudgens was assigned to work as a skip tracer, locating debtors and debtor assets. (Pl. SAF ¶ 3 (admitted).) Within months, Hudgens was performing the duties of a person managing the skip tracing department. (Pl. SAF ¶ 4 (admitted).) Plaintiff was recognized by Wexler & Wexler as a manager of the skip tracing department in 1998. (Pl. SAF ¶ 5 (deemed admitted for lack of support for denial).) Throughout Hudgens's employment, including after he was recognized as a manager, until the last few months of his employment, Hudgens reported to a supervisor, Roy Yarber. (Pl. SAF ¶ 6 (deemed admitted for non-responsive denial); id. ¶ 7 (deemed admitted for lack of support for denial).) Gerald Levy served as the director of operations and had supervisory power over everyone at Wexler & Wexler except for Norman Wexler. (Pl. SAF ¶ 8 (admitted).)

  Plaintiff alleges that he was treated less favorably than other persons in a management position at Wexler & Wexler and also treated less favorably than non-management employees who were Caucasian. In support of this conclusion, Plaintiff points to the fact that he was the only person in the office with managerial responsibilities who was required to punch in and out of the office. (Pl. SAF ¶ 10.) Defendants dispute this by pointing out that Plaintiff admits that he was taken off the clock in March 1997, but they do not dispute that he was required to punch in and out until then. (Defendants' Reply to Plaintiff's Rule 56 Statement of Addition of [sic] Facts in Opposition to Motion for Summary Judgment (D.E. 59) ("Def. Reply") ¶ 10; Pl. SAF ¶ 11.) Hudgens complained about this "unfair" treatment to Yarber, Patti Wexler (who handled time cards), Gerald Levy, and Norman Wexler. (Pl. SAF ¶ 11 (admitted).) Hudgens made complaints several times in 1995, in 1996, and in 1997 about being required to utilize a punch card and about management's failure to recognize him as a manager. (Id.)

  According to Hudgens, African-American employees in the skip tracing department were treated differently than Caucasian employees.*fn3 He offers as evidence of this treatment that Norman Wexler and Mitchell Wexler (whose position in the law office is not clear from the summary judgment papers) would regularly greet and address in a friendly manner Patrick Pilewski, a white employee, while ignoring Hasson Garland, an African-American employee who accompanied Pilewski. (Pl. SAF ¶ 12 (deemed admitted for non-responsive denial).) From 1995 to 1998, Hudgens and Yarber, both African Americans, were the only managers who were not supplied private offices. (Pl. SAF ¶ 14 (deemed admitted for non-responsive denial).) Mara Salganik, a Caucasian female and manager of accounting, Gerald Levy, a Caucasian male and director of operations, Marty Bass, a Caucasian male and manager of the clerical department, and Norman Wexler, a Caucasian male and manager of the legal department, all had private offices. (Id.) In 1998, Hudgens was given a private office.*fn4 (Pl. SAF ¶ 15.) Yarber sometimes referred to senior management in ways that reflected his view that they were racist, such as by saying, "don't trust that white boy," "they are racist," and "they are prejudiced." (Pl. SAF ¶ 16 (deemed admitted for non-responsive denial).) (Yarber also specifically testified that Wexler & Wexler never engaged in racially motivated activity (Pl. SAF, Ex. 45 at 50:15-19), never made any hiring or firing decisions based on racial considerations (id. at 50:11-14), and that while he did not always approve of Defendants' actions, their actions were "[n]ot racially motivated," but were "[m]oney motivated." (id. at 50:20-23; see also id. at 50:11-52:21).)

  More than ten times from 1995 to 1999, Hudgens complained to Yarber about the treatment of non-Caucasians, including himself, by management at Wexler & Wexler. (Pl. SAF ¶ 18 (deemed admitted for non-responsive denial).) From at least December 31, 1996, Wexler & Wexler had in place a harassment policy and grievance procedure in its employee policy manual.*fn5 (Pl. SAF ¶ 19 (deemed admitted for non-responsive denial).) In response to Plaintiff's complaints to Yarber, Yarber told Plaintiff "to do his best job and to stay away from the Wexlers." (Id. (deemed admitted for non-responsive denial).) Plaintiff also brought his concerns to the attention of Norman Wexler in letters he says he sent in 1996 and 1997.*fn6 (Pl. SAF ¶ 20.) Defendants deny that Hudgens complained of treatment based on race and offer three letters sent by Hudgens to Wexler in 1997, 1998, and August 1999. (Def. Reply ¶ 20; D.E. 59 (Def. Reply Br.), Ex. K.) None of these letters makes any reference to race or race-based discrimination against Hudgens or any other employee at Wexler & Wexler. Norman Wexler did not discuss the concerns that Hudgens raised in his letters, and at one point, Wexler dismissively referred to one of the letters as a "love letter" while "thumping" the paper on the side of Plaintiff's head. (Pl. SAF ¶ 22 (deemed admitted for non-responsive denial).)

  Hudgens was fired by Wexler & Wexler on December 7, 1999. (Def. SF ¶ 8 (admitted in pertinent part).)*fn7 After Hudgens was terminated, he was replaced by a Caucasian male.*fn8 (Pl. SAF ¶ 23 (deemed admitted for non-responsive denial and lack of support for denial).) Defendants state that Hudgens was fired for insubordination. Notes prepared by Levy state the following reasons that he terminated Plaintiff: "(1) Major lack of performance and drop in production, (2) Conflicts regarding his performance of my instruction and actual implementation [(A)] reporting; [(B)] termination of non producers; (3) poisoning the atmosphere in the skip tracing department and lowering morale; (4) taking time off without advance notice and also disappearing for long periods of time during the day." (Def. SF ¶ 13 (deemed admitted for lack of support for denial).) Defendants offer payroll records that show that Hudgens's production (as measured by the amount of commission he earned) dropped $17,321 over two years. (Def. SF ¶ 14.) Plaintiff disputes that these payroll records are evidence of his lowered production. He claims that his commissions were based on the number of "hits" (not defined) that he and his department turned in, and that his decreased hits can be explained by other factors, such as his increased responsibility in non-hit-based work and the company's focus on different types of hits (which are apparently worth different commissions). (Plaintiff's Responses to Defendant's Background (D.E. 57) ("Pl. Resp.") ¶ 14.)

  The event that apparently precipitated Hudgens's termination was an act of alleged insubordination on his part. In December 1999, Levy instructed Hudgens to lay off the four "lowest producers" for that month in the skip tracing department. (Def. SF ¶ 15 (admitted in pertinent part).) Although the briefing is not explicit about which employees were laid off, the Court adduces that Angelica Calderon, William Campbell, Latrena Harthrone, and Fundador Quinones were laid off by Hudgens. (See Def. SF ¶ 15; id., Ex. F.) Wexler & Wexler offers what it calls "production sheets" (which appear to be payroll records that reflect commissions paid to each employee) for the pay period ending November 17, 1999, to support its claim that Hudgens disregarded Levy's instruction and laid off at least some high producers and not the four lowest ones. (Def. SF, Ex. F.) According to Defendants, had Hudgens followed the instructions that Hudgens said Levy gave him,*fn9 he would have laid off Maricela Aguilar, William Campbell, Hasson Garland, and Sarah Melendez. (Def. SF ¶ 15.) Plaintiff denies these facts by stating that Plaintiff relied on other "skip tracing reports he maintained" to determine skip tracer activity and that he then laid off the four lowest producers for that month.*fn10 (Pl. Resp. ¶ 15.) After Hudgens was terminated, Wexler & Wexler paid the premium for his health benefits in January 2000. (Def. SF ¶ 23 (deemed admitted for lack of support for denial).) There is a dispute over whether Wexler & Wexler sent Plaintiff a notice of termination of his health insurance. Defendants claim that Plaintiff sent Hudgens a notification letter on December 9, 1999. (Def. SF ¶ 22; D.E. 46 (Def. Motion), Ex. ¶ 12.) Plaintiff denies that he received any letter from Defendants regarding his health benefits. (Pl. SAF ¶ 26.) The address to which Defendants allegedly mailed the letter was a post office box in Chicago. (D.E. 46 (Def. Motion), Ex. ¶ 12.) Plaintiff claims that the contact address listed on his employee information form and employment application with Wexler & Wexler is a street address on West 54th Place in Chicago, which was the address at which Plaintiff received all written communication from Defendants during his employment. (Pl. SAF ¶ 35.) Plaintiff also claims that on January 11, 2000, Plaintiff sent a letter to Wexler & Wexler requesting that his contact information be changed to his post office box address. (Id.) Defendants assert that they did have Plaintiff's post office box address, as evidenced by a W-4 IRS form (withholding allowance certificate) signed by Plaintiff, dated April 3, 1999, which listed post office box. (Def. Reply ¶ 35.)

  Plaintiff first learned that his health insurance had been terminated after discovering that he was unable to get psychiatric care for lack of coverage in January or February 2000. (Pl. SAF ¶ 29 (deemed admitted for non-responsive denial).) Plaintiff contacted Defendants' insurance carrier about January 2000 and was instructed that he should contact Defendants regarding his right to COBRA (presumably referring to his right under COBRA to extend his health insurance by paying the premium himself). (Pl. SAF ¶ 30 (deemed admitted for non-responsive denial).) Hudgens then called Mara Salganik at Wexler & Wexler who told Hudgens that Defendants do not participate in COBRA. (Pl. SAF ¶ 30, 33.) Defendants deny this by offering testimony by Salganik that she terminated Plaintiff's coverage because Plaintiff called her, asked for a return of his share of the premium of January, and, when asked, told Salganik that he did not wish to continue his health coverage. (Def. Resp. ¶ 33.) Plaintiff does not dispute that Hudgens called the office in January and asked ...


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