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September 14, 2005.

BRENT L. MILLER, Plaintiff,

The opinion of the court was delivered by: JOAN LEFKOW, District Judge


Plaintiff Brent L. Miller ("Miller") filed this action against defendant Ameritech Corporation ("Ameritech"),*fn1 alleging that Ameritech violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., by failing to accommodate his disability, by terminating him because of a protected disability, and by retaliating against him for filing an EEOC complaint by terminating his employment. Miller also asserts a state law claim of retaliatory discharge under the Illinois Workers' Compensation Act ("IWCA"). Before the court are Ameritech's motion for summary judgment and motion to strike. For the reasons stated below, the court grants in part and denies in part Ameritech's motion to strike and grants Ameritech's motion for summary judgment.


  Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).


  Before deciding whether a genuine issue of material fact exists with regard to Miller's claims, the court must address Ameritech's motion to strike and objections to Miller's statement of additional facts.*fn2

  A. Local Rule 56.1

  Local Rule 56.1(a) provides that a motion for summary judgment must include, inter alia, a "statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." This statement of material facts "shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." Part (b) of Local Rule 56.1 requires a party opposing summary judgment to file a concise response to the movant's statement of material facts. The rule is very clear that "all 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." Local Rule 56.1(b)(3)(B). The responding party may not include additional facts in its response to the movant's statement of material facts; instead, the responding party must file a statement of additional facts. Local Rule 56.1(b)(3)(B). See also Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) ("Rule 56.1(b)(3)(B) provides the only acceptable means of . . . presenting additional facts.") (citation and internal quotations omitted) (emphasis in original). It is also improper to include legal argument or legal conclusions in the Local Rule 56.1 statements of material facts and responses thereto. See Cady v. Miss Paige, Ltd., No. 02 C 4867, 2004 U.S. Dist. LEXIS 7613, 2004 WL 1144044 (N.D. Ill. Apr. 30, 2004) ("Local Rule 56.1 . . . emphasizes that it is inappropriate to include legal conclusions and/or argument in the Rule 56.1 statements of fact.").

  Ameritech objects to Miller's responses to ¶¶ 21, 48, 60, 61, 73-76, 79, 95, 102, and 103, arguing that Miller failed to offer any admissible evidence that contradicts or rebuts the evidence cited in Ameritech's statement of material facts. The court agrees that Miller failed to offer admissible evidence contradicting the evidence cited by Ameritech in ¶¶ 21,*fn3 48, 60, 61, 73, 79, 102, and 103. Accordingly, the court strikes Miller's responses and deems admitted the facts contained in those paragraphs.

  As for paragraph 74, it appears that Ameritech's citation includes multiple citation errors. Rather than citing to exhibit 36, paragraph 74 cites to exhibit 3. If this were its only error, the court would not penalize Ameritech. Every other paragraph referring to Dr. Elias's testimony refers to exhibit 36, and all of the other paragraphs on that page refer to exhibit 36. Paragraph 74, however, is not supported by exhibit 36, pages 112-113. Ameritech has not moved to file a corrected statement of facts or amend its statement of facts. Accordingly, the court will not consider the facts contained in paragraph 74 in its analysis because they are not supported by the cited materials. The court also denies Ameritech's motion to strike Miller's responses to paragraphs 75, 76, and 95 because Miller's responses sufficiently disputed the statements contained in Ameritech's statement of facts.

  Ameritech objects to Miller's inclusion of additional statements in his response to Ameritech's statement of material facts in ¶¶ 9, 18, 20, 50, 73, 100, 102, and 103. The court agrees that ¶¶ 9, 18, 20, 50, and 100 contain additional facts and arguments in violation of the local rules. See Malec, supra, 191 F.R.D. at 584. The court strikes such statements. The court has already stricken Miller's responses to paragraphs 73, 102, and 103 in their entirety. Additionally, Ameritech objects to narrative statements contained in Miller's responses to ¶¶ 22, 30, 42, 50, 57, 58, 59, 62, 71, 72, 77, 78, 82, 85, 86, 88, 89, 90, 97, 105, and 106. The court agrees that these paragraphs contain improper narrative or attempts to qualify otherwise undisputed materials and, accordingly, strikes the narrative statements.

  Ameritech objects to Miller's responses to ¶¶ 20, 48, 57, 61, 88, 89, and 101 because Miller cites to his affidavit as evidence contradicting his own deposition testimony. Miller's affidavit does not contradict his deposition testimony with respect to his response to paragraph 20; however, his cited evidence does not contradict Ameritech's statement of fact in paragraph 20. At the same time, Ameritech's cited evidence does not establish that heavy lifting of 60 to 70 pounds was a requirement of the job of a cable splicing technician. It establishes, instead, that heavy lifting of objects weighing 60 to 70 pounds was involved in Miller's job. As a result, the court will not strike Miller's response to paragraph 20. The evidence cited by Miller with respect to paragraph 61 does not contradict the fact that Miller never communicated to the Social Security Administration ("SSA") that his disability had ceased. Miller's cited evidence only states that during his visit to the SSA, he informed the SSA employees that he desired to return to work at Ameritech either on light duty or as a cable splicing technician assigned to work in a bucket truck who would not be required to lift heavy objects without assistance. See Pl. Ex. 1 at ¶¶ 10-11. The court has considered and stricken paragraphs 48, portions of paragraph 57, paragraph 61, and portions of 88 and 89 already.

  Paragraph 101 presents a slightly more complicated issue. Miller was asked the following questions during his deposition: "Since you indicated that you were able to do most any job, other than ones that involve climbing ladders and lifting weights or heavy weights, 100-pound weights, do you feel you were substantially limited in any major life activity at the time of your discharge?" Miller responded, "No. I mean, obviously I still had pain, and those things were slightly affected, but majorly affected, no." Def. Ex. 2 at 362. Miller was then asked, "So you felt you were not substantially limited in any major life activity at the time of your discharge, right?" He answered, "Correct." Def. Ex. 2 at 362-363. Paragraph 101 states, "Miller was not substantially impaired in any major life activity in 1998," citing to Miller's admission in his deposition. Miller, however, disputes paragraph 101, citing to his affidavit. His affidavit states, in relevant part, "Since 1993, including during 1997 and 1998, these conditions substantially impaired by [sic] ability to engage in sexual relations, urinate, walk long distances, stand or sit for long periods of time, climb ladders safely and drive long distances." Pl. Ex. 1 at ¶ 6.

  It is well-settled that parties cannot create a genuine issue of material fact and avoid summary judgment "by creating `sham' issues of fact with affidavits that contradict their prior depositions. . . ." Ineichen v. Ameritech, 410 F.3d 956 at 963 (7th Cir. 2005), quoting Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168-69 (7th Cir. 1996). In this case, Miller attempts to blame his admission on the failure of Ameritech's counsel to provide a definition of "substantially limited" or "any major life activity." See Pl.'s Response at 3. Miller has not cited to any authority for the proposition that counsel must define terms for deponents when the deponent has not demonstrated a lack of understanding, nor has Miller even stated, in his affidavit or otherwise, that he did not understand the questions. Accordingly, the court strikes Miller's response to paragraph 101 and paragraph 6 of Miller's affidavit because his affidavit contradicts his prior deposition testimony and Miller has not provided an explanation as to the discrepancies. See Stinnett v. Iron Works Gym/Exec. Health Spa, 301 F.3d 610, 615 (7th Cir. 2002) (holding that district court did not err in striking portions of the plaintiffs affidavit that conflicted with his prior deposition testimony in the absence of an explanation as to those discrepancies).

  B. Miller's Affidavit

  Ameritech also raises numerous objections to Miller's affidavit and moves that it be stricken. First, Ameritech argues that Miller's affidavit fails to satisfy Rule 56(e), Fed.R.Civ.P., which requires that "[s]upporting and opposing affidavits 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). Although Miller did not have his affidavit notarized, he signed his affidavit under penalty of perjury attesting that the facts contained in his affidavit were true. Miller's affidavit is sufficient and Ameritech's objections in that regard are overruled. See 28 U.S.C. § 1746 (permits unsworn affidavits if made "under penalty of perjury" and verified as "true and correct"). Ameritech argues further that the ...

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