United States District Court, N.D. Illinois, Eastern Division
January 11, 2005.
TANYA J. MOSS-BUCHANAN and MICHAEL A. BUCHANAN, Plaintiffs,
THE CITY OF CHICAGO, Defendant.
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Currently before the Court is Defendant's Motion for Summary
Judgment. Plaintiffs sued Defendant pursuant to Title VII of the
Civil Rights Act, as amended, 42 U.S.C. § 2000 et seq.,
claiming that Defendant terminated Plaintiffs because of their
race. For the reasons set forth below, Defendant's Motion is
Plaintiffs Tanya Moss-Buchanan and Michael Buchanan were
employed by the City of Chicago. Ms. Moss-Buchanan worked as a
Project Coordinator in the City's Department of Revenue ("DOR")
from 1987 to July 31, 2002. Mr. Buchanan worked as an
Administrative Manager in that same department from 1977 to July
31, 2002. The fact that Plaintiffs' termination dates are
identical is no coincidence; Plaintiffs were terminated pursuant
to a City ordered reduction in workforce, which was implemented
in July 2002. The DOR laid off twelve workers, including five union employees. The union employees were laid off under a
collective bargaining agreement, which dictated that the last
hired were the first fired. Plaintiffs were among the remaining
seven non-union employees terminated in the reduction in
The parties agree that four of the seven non-union employees
terminated in July 2002 were African American, and that only
fifty percent of the DOC work force at that time were African
American. The parties also agree that Ms. Moss-Buchanan's work
performance was not a factor in her termination. While Defendant
claims that its discretionary termination decisions were informed
by the employees' salaries and their middle management positions,
Plaintiffs claim that the decisions were influenced by racial
On September 23, 2002, Plaintiffs filed charges of
discrimination with the Equal Employment Opportunity Commission
(the "EEOC"), claiming that they were discriminated against
because of their race.*fn1 The EEOC issued Mr. Buchanan a
Right to Sue letter on September 25, 2002. At his deposition, Mr.
Buchanan admitted that he had no reason to doubt that he received
this letter on either September 28, 2002 or September 29, 2002. The EEOC issued Ms. Moss-Buchanan's Right to Sue letter on
November 12, 2002; the record contains no further evidence with
regard to when Ms. Moss-Buchanan actually received her right to
Plaintiffs filed this lawsuit pro se, on February 11, 2003
91 days after the EEOC issued Ms. Moss-Buchanan's Right to Sue
letter and approximately 104 days after Mr. Buchanan likely
received his Right to Sue letter.
The case was assigned to Judge Elaine E. Bucklo. Although
Plaintiffs filed their lawsuit pro se, their attorney filed his
appearance on August 1, 2003. The parties consented to proceed
before this Court on October 24, 2003.
Summary judgment will be granted where the pleadings and
supporting documents show that there is no genuine issue of
material fact, and the movant is entitled to judgment as a matter
of law. Fed R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Whether a fact is material to the dispute
is established by the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1985). A genuine issue
as to one of these material facts exists if the evidence is such
that a reasonable jury could return a verdict for the non-moving
In a summary judgment proceeding, the Court will disregard all facts not properly supported by the record. Brasic v.
Heinemann's, Inc., 121 F.3d 281, 284 (7th Cir. 1997). The Court
does not make "credibility determinations nor choose between
competing inferences" at the summary judgment stage. Sarsha v.
Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir. 1993).
However, in determining whether a genuine issue of material fact
exists, the Court views the facts in the light most favorable to
the non-moving party and draws all reasonable inferences in the
non-moving party's favor. Shank v. William R. Hague, Inc.,
192 F.3d 675, 681 (7th Cir. 1999).
The moving party initially bears the burden of showing that the
record contains no genuine issue of material fact. Celotex,
477 U.S. at 323. The moving party need not negate its opponent's
claim. Id. at 322. Instead, with respect to issues on which the
non-moving party bears the burden of proof at trial, "the burden
on the moving party may be discharged by `showing' that is,
pointing out to the district court that there is an absence of
evidence to support the non-moving party's case." Id. at 325.
If the moving party meets its burden, then the non-moving party
must set forth specific facts showing that there is a genuine
issue for trial; the non-moving party "may not rest upon the mere
allegations or denials of the adverse party's pleading. . . ."
Anderson, 477 U.S. at 248, 257. Additionally, "mere conclusory"
allegations are inadequate. Nowak v. St. Rita High Sch., 142 F.3d 999, 1002 (7th Cir. 1998). The non-moving party
must present more than a "metaphysical doubt as to the material
facts" to survive summary judgment. Matsushita Elec. Indus. Co,
v. Zenith Radio Corp., 475 U.S. 574, 596 (1986). The non-moving
party will not survive summary judgment if it cannot present
sufficient evidence to support each element of its case on which
it will bear the burden of proof at trial. Celotex,
477 U.S. at 322.
Defendant contends that summary judgment is proper against Mr.
Buchanan, because he failed to file his lawsuit within 90 days of
receiving his Right to Sue letter from the EEOC. Defendant
further argues that, because Ms. Moss-Buchanan has failed to
comply with Local Rule 56.1, all of Defendant's material facts
are deemed admitted. As such, the Court should grant Defendant's
Motion for Summary Judgment with regard to Ms. Moss-Buchanan as
well. The Court will address Defendant's arguments with respect
to each Plaintiff in turn.
A. Mr. Buchanan's Suit is Untimely
Initially, the Court notes that Mr. Buchanan has not bothered
to file any response whatsoever to Defendant's Motion and
Statement of Material Fact. Just as well; the Court agrees that
his lawsuit is time barred.
A plaintiff must file his suit within ninety days from the date the EEOC gives notice of the right to sue.
42 U.S.C. § 12117(a); Houston v. Sidley & Austin, 185 F.3d 837, 838-39 (7th
Cir. 1999). This deadline is not simply a jurisdictional
prerequisite, but is a condition precedent to relief. Perkins v.
Silverstein, 939 F.2d 463, 469-70 (7th Cir. 1991). This strict
rule often yields harsh results, as filing even a few days late
is fatal. See, e.g., Jones v. Madison Service Corp.,
744 F.2d 1309, 1314 (7th Cir. 1984) (affirming an award of summary
judgment in the defendant's favor based on the fact that the
plaintiffs filed their suit two days late); Wilson v. Doctor's
Hospital of Hyde Park, 909 F. Supp. 580, 581 (N.D. Ill. 2000)
(dismissing a complaint because it was filed one day late);
Brown v. City of Chicago, No. 96 C 3078, 1998 WL 704278, at *3
(N.D. Ill. Sept. 30, 1998) (granting summary judgment in favor of
the defendant based on the fact that the plaintiff filed his suit
three days late).
In the Seventh Circuit, the ninety-day period generally does
not begin to run until the plaintiff actually receives notice of
his right to sue letter. Houston, 185 F.3d at 839. However,
this actual notice rule only protects a plaintiff where actual
notice was not delayed by the plaintiff's own fault. Bobbitt v.
Freeman Co., 268 F.3d 535, 538 (7th Cir. 2001). Courts have
frequently determined that a plaintiff is at fault for a delay if
he does not acquire his right-to-sue letter from his mailbox before the Postal Service returns the letter to the EEOC. See,
e.g., Houston, 185 F.3d at 839; Ungeran v. Commonwealth
Edison, No. 00 C 5312, 2001 WL 1035181, at *2 (N.D. Ill. Sept.
7, 2001); Jones v. Motorola, No. 00 C 6439, 2001 WL 864273, at
*5 (N.D. Ill. July 30, 2001).
At his deposition, Mr. Buchanan stated that he had no reason to
doubt that he received his Right to Sue letter within three or
four days of its issuance, on September 25, 2002.*fn2 But
Mr. Buchanan did not file his lawsuit until February 11, 2003,
approximately 104 days after he likely received the letter.
Therefore, the Court agrees that Mr. Buchanan's suit cannot
proceed and grants Defendant's Motion for Summary Judgment with
respect to Mr. Buchanan.
B. Ms. Moss-Buchanan has not Introduced Direct Evidence of
Ms. Moss Buchanan argues that the statistical, racial breakdown
of the employees terminated on July 31, 2002 amounts to direct
evidence of discrimination. Both parties acknowledge that, at the time of the reduction, approximately 53% of the
DOR's employees were African American. Ms. Moss-Buchanan notes
that, although less than 50% of the total number of employees
terminated in the DOR's reduction in workforce were African
American, that figure is distorted, because the City was
obligated to terminate five of those twelve employees pursuant to
a union contract. Looking at just the discretionary terminations,
Ms. Moss-Buchanan points out that four of the seven employees
were African American.*fn3 But this amounts to only 57% of
those terminated*fn4 not exactly the "overwhelming"
evidence that Ms. Moss-Buchanan portrays it to be.
Even if more compelling, Plaintiff's statistical evidence is
not direct evidence of discrimination. "Direct evidence
essentially requires an admission by the decision-maker that his
actions were based on the prohibited animus." Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000)
(citations omitted). Generally, statistical evidence in reduction
in workforce cases also fails to establish circumstantial
evidence of discrimination, because it can "only show a relationship
between an employer's decision and the affected employees'
traits; they do not show causation." Id. In this case, Ms.
Moss-Buchanan's statistical evidence sheds no light on the
terminated employees' roles, responsibilities or salaries, and,
therefore, fails to establish discrimination. Id. at 616-17.
("[s]tatistical evidence which fails to properly take into
account nondiscrimination explanations does not permit an
inference of discrimination.")
C. Ms. Moss-Buchanan's Failure to Comply with Local Rule 56.1
Prevents Her from Demonstrating a Genuine Issue of Material Fact
Under McDonnell Douglas.
Ms. Moss-Buchanan further argues that summary judgment should
be denied under the indirect McDonnell-Douglas*fn5 method
of proof, because she has submitted evidence that similarly
situated, non-protected individuals were not terminated, and that
Defendant's proffered explanation for terminating her was a mere
pretext for discrimination.
Defendant argues that the "evidence" that Ms. Moss-Buchanan
relies upon is not admissible, and, therefore, there is no genuine issue of fact that its decision to terminate her was not
discriminatory. Specifically, Defendant contends that Plaintiff's
failure to comply with Local Rule 56.1 renders all facts
Under Local Rule 56.1, the party moving for summary judgment
must submit a statement of material facts, written in short
numbered paragraphs with citations to admissible evidence. Loc.
R. 56.1(a); Smith v. Lamz, 321 F.3d 680, 682 (7th Cir. 2003).
The opposing party must respond to each paragraph by either
admitting or denying the allegations, and specifically citing to
supporting materials showing the existence of a genuine factual
dispute. Loc. R. 56.1(b) (3) (A). Statements of additional facts
must also be supported by specific "references to the affidavits,
parts of the record, and other supporting materials relied upon."
Loc. R. 56.1(b) (3) (B).
The Seventh Circuit has repeatedly held that a district court
is entitled to expect firm compliance with Rule 56.1. Bordelon
v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir.
2000) ("Given their importance, we have consistently and
repeatedly upheld a district court's discretion to require strict
compliance with its local rules governing summary judgment"). If
the party opposing summary judgment fails to identify supporting
material in the record, the moving party's statements will be
deemed admitted assuming these statements are properly supported in the record. Loc. R. 56.1(b) (3) (B);
Garrison v. Burke, 165 F.3d 565, 567 (7th Cir. 1999).
First, the Court notes that Ms. Moss-Buchanan's attempts to
deny Defendant's Statement of Material Facts are deficient. In
her response, Ms. Moss-Buchanan denied the factual assertions
contained in ¶¶ 20, 21, 47-49, 54, and 59. With the exception of
¶¶ 20, 21, and 59, the denials are without citation to any
evidence. These facts are, therefore, deemed admitted.*fn6
And Paragraphs 20, 21, and 59 cite only to Ms. Moss-Buchanan's
affidavit, which, Defendant claims, lacks foundation, is not
based upon personal knowledge, and is inadmissible.
Similarly, Ms. Moss-Buchanan's Statement of Additional
Facts,*fn7 which she further relies upon in support of her
argument that there is a genuine issue of fact warranting trial,
fails to cite to any record evidence. Ms. Moss-Buchanan's
affidavit was, however, submitted at the same time as her
Statement of Additional Facts, and is virtually identical to her
Statement of Additional Facts, except that her affidavit refers
to herself in the first person, not the third person.
Ms. Moss-Buchanan's affidavit (and Statement of Additional Facts) identifies the terminated employees and their races;
identifies the employees who selected the non-union employees for
termination and their races; claims that she was effectively
replaced by an employee making more money than she; and notes
that two of the four project coordinators who remained with the
DOR were white, had less years experience than her, and (on
average) earned more money than Plaintiff. This evidence,
Plaintiff claims, necessarily defeats Defendant's Motion for
However, Ms. Moss-Buchanan's affidavit is insufficient to
create a genuine issue of fact because it is self-serving and
lacking in personal knowledge. Therefore, she has submitted no
admissible evidence that would permit the Court to infer that
similarly situated, non-African-American employees were not
terminated and that Defendant's proffered explanation for
terminating Ms. Moss-Buchanan was merely a pretext for
Rule 56(e) states that affidavits opposing summary judgment
motions "shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein." Fed R. Civ. P. 56(e). Ms. Moss-Buchanan
fails to demonstrate how she has personal knowledge as to 1)
which employees participated in the selection of which non-union employees to terminate, 2) which employees assumed her
responsibilities after her termination; and 3) the race, salaries
and years of service of the remaining employees. Instead, Ms.
Moss-Buchanan's affidavit is nothing more than a self-serving
affidavit, lacking factual support in the record. As the Seventh
Circuit has explained, such affidavits will not defeat a motion
for summary judgment:
Conclusory Statements, unsupported by the evidence of
record, are insufficient to avoid summary judgment. . . .
`Rule 56 demands something more specific than the
bald assertion of the general truth of a particular
matter . . . rather it requires affidavits that cite
specific concrete facts establishing the existence of
the truth of the matter asserted. . . . We require
that the party opposing the motion take reasonable
steps to provide the district court sufficient
evidence to create a genuine issue of material fact.
Albiero v. City of Kankakee, 246 F.3d 927
, 933 (7th Cir.
2001) (quotations and citation omitted.) (Noting that the
plaintiff's submission of a self-serving affidavit could not take
the place of submit photographs, independent inspection report,
or other independent evidence.)
Finally, Ms. Moss-Buchanan's Statement of Additional Facts is
deficient, even though it was submitted with her affidavit,
because it fails to comply with Local Rule 56.1 by specifically
citing to record evidence.
Therefore, the Court finds that there is no genuine issue of
material fact that Defendant terminated Ms. Moss-Buchanan as a
part of its reduction in workforce, because of her middle management position and her salary, and not because of her race.
For the reasons set forth above, the Court finds that there is
no genuine issue of material fact that Defendant's decision to
terminate Plaintiffs was motivated by racial animus. Accordingly,
the Court grants the City's Motion for Summary Judgment.