The opinion of the court was delivered by: MARK FILIP, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Lester Stolarczyk ("Plaintiff") is suing, on behalf
of the estate of Rebecca Stolarczyk ("Stolarczyk"), Senator
International Freight Forwarding, LLC ("Defendant" or "Senator"),
for allegedly unlawfully terminating Stolarczyk and failing to
offer her a reasonable accommodation for her alleged disability
in violation of the Americans with Disabilities Act,
42 U.S.C. §§ 12101, et seq. (D.E. 24 (Am. Compl.).) The case is before the
Court on Defendant's motion for summary judgment ("Motion").
(D.E. 27.) For the reasons stated below, the Motion is granted.
The relevant facts are taken from Defendant's Local Rule 56.1
("L.R. 56.1") statement of facts and exhibits ("Def. SF"),
Plaintiff's response to Defendant's statement of facts ("Pl.
Resp. to SF"), Plaintiff's L.R. 56.1 statement of additional
facts ("Pl. SAF"), and Defendant's response to Plaintiff's
statement of facts ("Def. Resp. to SAF"). As is the practice in
this district, the Court only considers those facts or additional facts that are
presented in compliance with Local Rule 56.1 ("L.R. 56.1"). The
Seventh Circuit has "consistently and repeatedly upheld a
district court's discretion to require strict compliance" with
L.R. 56.1. See Bordelon v. Chicago Sch. Reform Bd. Of Trs.,
233 F.3d 524, 527 (7th Cir. 2000).
When denying a movant's factual allegations, "a general denial
is insufficient." Malec v. Sanford, 191 F.R.D. 581, 584 (N.D.
Ill. 2000). Rather, "the nonmovant must cite specific evidentiary
materials justifying the denial." Id.; see also id. (failure to
adhere to L.R. 56.1 requirements, including citation to specific
evidentiary materials justifying denial, is equivalent to
admission). In deciding a summary judgment motion, a court may
consider, along with deposition testimony and other material
discussed in Federal Rule of Civil Procedure 56(c) and 56(e),
"any material that would be admissible or usable at trial,
including properly authenticated and admissible documents or
exhibits." Smith v. City of Chicago, 242 F.3d 737, 741 (7th
Cir. 2001) (internal quotations omitted). A court must disregard,
however, evidence that constitutes inadmissible hearsay. See
Davis v. G.N. Mortg. Corp., 396 F.3d 869, 874 n. 3 (7th Cir.
2005) (citing Bombard v. Fort Wayne Newspapers, Inc.,
92 F.3d 560, 562 (7th Cir. 1996)); Eisenstadt v. Centel Corp.,
113 F.3d 738, 742 (7th Cir. 1997) ("[H]earsay is inadmissible in summary
judgment proceedings to the same extent that it is inadmissible
in a trial . . . except that affidavits and depositions, which
(especially affidavits) are not generally admissible at trial,
are admissible in summary judgment proceedings to establish the
truth of what is attested or deposed . . . provided, of course,
that the affiant's or deponent's testimony would be admissible if
he were testifying live.").
Here, Senator argues that most of Plaintiff's responses to its
statements of fact, as well as various of Plaintiff's statements of additional fact, are
supported only by inadmissible hearsay. In particular, Senator
objects to the use of Stolarczyk's EEOC charge (D.E. 33, Ex. 3)
and to notes apparently taken by an EEOC investigator that
document statements made by Stolarczyk during an interview
(id., Ex. 4). (See Def. Resp. ¶¶ 1, 2, 4, 5; D.E. 35 at 2-5.)
Plaintiff is using these documents for the truth of the matters
asserted in them to argue, for example, that Stolarczyk was
terminated by Senator rather than, as other evidence reflects,
that she was not.
Defendant argues that these documents do not fall within any of
the exceptions to the generally applicable prohibition on hearsay
contained in the Federal Rules of Evidence. In a supplemental
brief ordered by the Court regarding these evidentiary issues
(see D.E. 37), Plaintiff does not dispute that Ms. Stolarczyk
unfortunately died during the course of this litigation (and
prior to any deposition) and therefore cannot testify at any
trial. Plaintiff nonetheless argues that the EEOC charge meets
the requisite guarantees of trustworthiness to be admitted under
the residual exception to the hearsay rule, see Fed.R. Evid.
807, and that the EEOC investigator's notes are admissible as
factual findings resulting from an investigation authorized by
law, see Fed.R. Evid. 803(8)(C). As explained below, the Court
agrees with Senator that the EEOC charge and notes of the
interview with Stolarczyk constitute inadmissible hearsay that is
not properly considered in the summary judgment analysis, given
the fact that Ms. Stolarczyk would be unavailable as a witness at
trial and was never deposed in this case.
1. The EEOC Investigator's Notes
Plaintiff argues that the EEOC investigator's handwritten notes concerning
Ms. Stolarczyk's statements are admissible as substantive evidence pursuant
to Federal Rule of Evidence 803(8)(C). (See D.E. 38 at 5-6.) This argument
is respectfully rejected. Rule 803(8)(C) excepts from the general hearsay bar "[r]ecords,
reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth . . . in civil actions and
proceedings . . . factual findings resulting from an
investigation made pursuant to authority granted by law, unless
the sources of information or other circumstances indicate lack
To begin, it is clear from a review of the proffered
investigator's notes that they cannot fairly be characterized as
"factual findings" resulting from an investigation made pursuant
to authority granted by law. Instead, a review of the notes
(see D.E. 33, Ex. 4) makes clear that they are instead
selective portions of notes concerning statements made by Ms.
Stolarczyk during an interview with an EEOC investigator. (See,
e.g., D.E. 33, Ex. Akbar Aff. (affidavit of EEOC investigator
stating that "I interviewed Rebecca Stolarczyk and compiled
handwritten notes documenting the contents of the interview and
what was said to me by her. My notes are attached hereto. . . .").)
Indeed, Plaintiff refers to the notes as the "EEOC interview with
Rebecca Stolarczyk." (E.g., D.E. 33 at 2.)
Caselaw teaches, however, that hearsay statements are not
exempted from the hearsay bar simply because they were related to
a government officer or investigator. Thus, In re Air Crash
Disaster at Stapleton Int'l Airport, Denver, Colorado,
720 F. Supp. 1493 (D. Col. 1989) (Finesilver, C.J.), taught that while
"[g]overnment accident investigation reports are generally
admissible under the public records exception [of Rule 803(8)] . . .
portions of those reports or exhibits may present other hearsay problems."
Id. at 1497 (citation omitted). "Evidence reported in a government document
is only admissible to the extent that the maker of [the] document could
testify to that evidence were he present in court." Id. (citing Denny v.
Hutchinson Sales Corp., 649 F.2d 816, 821 (10th Cir. 1981)); accord Frazier v.
Ind. Dept. of Labor, No. IP01-0198-C-T/G, 2003 WL 21254424, at
*4 (S.D. Ind. Mar. 17, 2003) (excluding numerous proffered
matters from an EEOC file, including the EEOC charges and
position statements of the complainants, on grounds of, inter
alia, the general hearsay prohibition and Rule 403) (citing
Tulloss v. Near N. Montessori Sch., 776 F.2d 150, 154 (7th Cir.
1985)); Lewis v. Velez, 149 F.R.D. 474, 487 (S.D.N.Y. 1993)
(noting that "Rule 803(8) does not circumvent the hearsay rule"
and noting that "[t]his principle excludes much of the Bryan
Report [concerning a prison incident], which is comprised largely
of hearsay statements from correction officers involved in the . . .
incident."); Budden v. United States, 748 F. Supp. 1374,
1377-78 (D. Neb. 1990) (stating that "[e]vidence reported in a
government document is only admissible to the extent that the
maker of the document could testify to that evidence were he or
she present in court," and accordingly "disregard[ing]" "the
reported statements" of numerous witnesses).*fn1
These cases are consistent with Fed.R. Evid. 805, which
requires that hearsay within hearsay may be admitted only if
there is an exception for each "layer" of hearsay. See
Fed.R.Evid. 805. Plaintiff has not offered any exception for the
statements made by Stolarczyk contained in the EEOC notes which
are the statements upon which Plaintiff would rely for their
truth to support Plaintiff's statements of fact and denials.
Although the Court is sympathetic to the Plaintiff in that Ms.
Stolarczyk has unfortunately died, if the EEOC investigator were
called as a witness at trial, the Court could not allow that
individual to relate rank hearsay in the form of out-of-court
statements made by an interested party and in reasonable
anticipation of ensuing litigation. As the Seventh Circuit has noted, "the EEOC file is a
`mish-mash of self-serving and hearsay statements and records; . . .
justice requires that the testimony of witnesses be given in
open court, under oath, and subject to cross-examination."
Tulloss, 776 F.2d at 154 (internal quotation marks and citation
omitted). The Court would follow the Seventh Circuit's admonition
at any trial and exclude the hearsay, as nothing in the
Plaintiff's invocation of Rule 803(8) would allow for the
admission of the proffered out-of-court interview statements by
Ms. Stolarczyk to the EEOC investigator.*fn2
None of the three cases cited by Plaintiff alters the analysis
above. Chandler v. Roudebush, 425 U.S. 840 (1976) (cited by
Plaintiff in D.E. 33 at 5), simply noted in a footnote that prior
"administrative findings" concerning employment discrimination
cases involving federal employees could be admitted at trial.
Id. at 864 n. 39. But, as explained above, the interview notes
that Plaintiff proffers are not "administrative findings," they
are just shorthand notes of statements that Ms. Stolarczyk made
before her death, offered for the truth of those out-of-court
assertions. Similarly, Beech Aircraft v. Rainey, 488 U.S. 153
(1988), addressed the question of whether Rule 803(8)(C)'s
exception to the hearsay prohibition "for public investigatory
reports containing `factual findings,' extends to conclusions and
opinions contained in such reports." Id. at 156. Again, the
proffered interview notes are not public investigatory reports,
nor do they contain "factual findings." Finally, to the extent
Plaintiff offers Young v. James Green Mgmt. Inc., 327 F.3d 616 (7th Cir. 2003),*fn3
that case affirmed the exclusion at trial of administrative
findings of discrimination by the EEOC. Id. at 624. In this
case, Plaintiff has not offered such findings, but rather has
offered hearsay notes of out-of-court statements by Ms.
Stolarczyk. In addition, the appellants in that case did not ...