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July 8, 2005.

LESTER W. STOLARCZYK, Independent Executor of the Estate of REBECCA M. STOLARCZYK, Deceased, Plaintiff,

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


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.

I. Background

  A. Preliminary Issues

  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 of trustworthiness."

  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 ...

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