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Holmes v. County of Cook

January 24, 2006


The opinion of the court was delivered by: Judge Blanche M. Manning


Plaintiff Kelvin Holmes brought suit against Cook County for alleged discrimination based on age under the Age Discrimination Employment Act; race and color under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 as well as 42 U.S.C. § 1983; and religion and sex under Title VII. Currently before the court is the defendant Cook County's ("Cook County" or "the county") motion for summary judgment seeking judgment as a matter of law as to all of Holmes' claims. For the reasons discussed below, the motion is granted.


Holmes is proceeding pro se and received the Local Rule 56.2 notice explaining the procedures used to resolve motions for summary judgment. Cook County moves to strike portions of Holmes' response to the County's Local Rule 56.1 statement of facts on the ground that it fails to comply with the requirements of Local Rule 56.1(b). Holmes' response to the defendants' motion is comprised of three documents. The first is essentially a treatise on Title VII of the Civil Rights Act of 1964 that does not apply the facts of his case to the law. The second and third documents are his response to the county's statements of facts.*fn1 For each paragraph in the statements of fact, Holmes states whether he agrees or disagrees with the statement. For those with which he disagrees, Holmes does not cite to any part of the record upon which he bases his denial, and often includes other facts (again with no citations to the record). After his response to each statement of fact, Holmes provides a statement that "I declare under penalty of perjury under the laws of the United States that the foregoing is accurate and true," and then signs and dates each statement. In addition, Holmes sometimes provides a citation to caselaw, with no particular explanation or application of the case citation to the facts at issue.

The plaintiff's failure to comply with the Local Rules is not excused by his pro se status. See Stevens v. Navistar Int'l Transp. Corp., 244 F. Supp. 2d 906, 910 (N.D. Ill. 2002) (holding that even though the court reads a pro se plaintiffs pleadings liberally, pro se status does not excuse a failure to comply with Local Rule 56.1). Nevertheless, because the plaintiff is proceeding pro se, the court will consider the factual assertions he makes in his response to the defendants' statement of facts but only to the extent that the plaintiff could properly testify about the matters asserted. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed R. Evid. 602.


General Background

Holmes applied for employment with Cook County through the Bureau of Human Resources on April 5, 2001 in response to a posting for job title 2254, Engineering Technician II. Holmes began work at the Cook County Department of Highways on or around April 22, 2002. The Cook County Bureau of Human Resources notified Holmes by letter dated February 28, 2003, that he was required to attend the Employee Orientation Program on Thursday, March 13, 2003.*fn3 Holmes denies receiving this letter. Resp. at 44. The February 28, 2003 [sic], letter states that the program "provide[s] a general overview of Cook County Government and the rules and regulations that effect you as an employee."

Holmes admitted in his deposition that he received a copy of the Cook County personnel rules and regulations. However, in his response to the county's statement of facts, Holmes states that he "did receive copies of the rules and regulations but I have not received them in its entirety or as a packet."*fn4 A party opposing a motion for summary judgment cannot create "sham" issues of fact by filing affidavits that contradict prior deposition testimony. Ineichen v. Ameritech, 410

F.3d 956, 963 (7th Cir. 2005). Accordingly, the court finds that Holmes received a copy of the county's personnel rules and regulations.

The personnel rules provide that employee behavior contrary to the rules shall be subject to disciplinary action, up to and including discharge. The rules also provide that disciplinary action for major cause infractions need not be progressive. "Major cause" includes "[s]eeking to work, reporting to work or being present on County premises, in County vehicles, or engaged in County activities while under the influence of illegal drugs, alcohol or legal drugs which adversely affect safety or job performance." Holmes states that he does agree "to these [sic] rules" but contends that he never violated them.

The county states that the Bureau of Human Resources requires all employees to comply with the Cook County Drug Free Workplace Act and requires drug testing of employees under different circumstances, including pre-employment and reasonable suspicion testing. Without pointing to anything in the record, Cook County states that Holmes received the Cook County Employee Resource Guide, the County's Drug-Free Workplace Policy, and the General Protocol for Drug Abuse Policy & Testing Procedures. Holmes denies ever having received these documents.

Holmes received a pre-employment medical examination on April 8, 2002 at the County's Medical Division, which included a drug test. On that same day, Holmes signed a form authorizing the release of any drug testing results by the Cook County Department of Human Resources to Wally Kos, Superintendent of Highways at the Cook County Highway Department. Union affiliation and procedures for promotion

Holmes started work as an Engineering Technician II with the Cook County Highway Department on April 22, 2002. At the time Holmes was hired, he was represented by the International Union of Operating Engineers Local 150, AFL-CIO under the terms of the collective bargaining agreement ("CBA") with Cook County. Holmes responds that he "disagrees" and that he was "represented by no one" but acknowledges that union dues were taken out of his paycheck. The terms of the CBA provided that Holmes was not eligible for promotion because new employees are hired under probationary status for a period of six months. Holmes states that he knew nothing of the terms of the CBA until he was terminated. Probationary employees have no seniority and may be terminated at any time during the probationary period.

Under the terms of the CBA, first preference is given in order of department seniority for any promotion or transfer. Holmes asserts (in response to statement of fact number 13) that a Highway Department vice-president, Mr. Youngblood, told him that he would be a "supervisor of the survey" and that he would train the other workers because he was experienced and work on the project was behind. Holmes also states that Youngblood "falsely gave me preference." but that Youngblood now denies that he made the aforementioned comments and has avoided talking to Holmes about an unspecified "complaint."

During Holmes' employment with the county, the Highway Department had no positions available for any promotions or transfer. Holmes, however, states that he was verbally promoted by Youngblood on April 22, 2002. During the period of Holmes' employment (April through July 2002), Holmes made no appointments for interviews for any positions within the Highway Department. Holmes contends that Youngblood told Holmes that he was a supervisor and that Youngblood did not mention anything about seniority or human resources.

Requests for leave

If requesting time off of work, either paid or unpaid, a county employee must contact either his supervisor or the Highway Department's human resources' department. The county contends that during the period of his employment, Holmes made no requests for unpaid leave or for FMLA leave. The county states that Holmes never contacted the human resources department to complain about his compensation or medical or personal leave. Holmes asserts that he did request unpaid leave to attend court and when he did request time off he went through the proper channels. He also states he had "no knowledge of FMLA leave." Moreover, Holmes responds that he complained to "management," including Youngblood and Krystiniak, Supervisor of Personnel, Cook ...

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