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Alexander v. Wireless

March 8, 2006

NICOLE ALEXANDER, PLAINTIFF,
v.
CINGULAR WIRELESS, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on Defendant Cingular Wireless's Motion to Strike Plaintiff Nicole Alexander's Response to Defendant's Statement of Undisputed Material Facts (d/e 28), Motion to Strike Portions of the Affidavit of Sabrina Orr (d/e 29), and Motion for Summary Judgment (d/e 25). Plaintiff Nicole Alexander brings this action against Defendant Cingular Wireless (Cingular) alleging retaliation under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Cingular moves to strike, in whole or in part, Plaintiff Alexander's Response to Defendant's Statement of Undisputed Material Facts for failure to comply with Central District of Illinois Local Rule 7.1(D)(2). Cingular also moves to strike paragraphs 4, 5, 6, 9, 10,13 and 15 of the Affidavit of Sabrina Orr. See Plaintiff's Response to Defendant's Motion for Summary Judgment (d/e 26), Exhibit B, Affidavit of Sabrina Orr (Orr Affidavit). Cingular further moves for summary judgment. For the reasons set forth below, Defendant's Motion to Strike Plaintiff's Response to Defendant's Undisputed Material Facts is DENIED; Defendant's Motion to Strike Portions of the Affidavit of Sabrina Orr is ALLOWED, in part, and DENIED, in part; and Defendant's Motion for Summary Judgment is ALLOWED.

ANALYSIS

A. DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S RESPONSE TO DEFENDANT'S STATEMENT OF UNDISPUTED MATERIAL FACTS

Defendant moves to strike 22 separate paragraphs of Alexander's disputed material facts, as set forth in her Response to Defendant's Motion for Summary Judgment, based on the fact that the paragraphs fail to comply with the Central District of Illinois Local Rules. Cingular complains that, in disputing the portions of Defendant's Statement of Undisputed Material Facts contained in Defendant's Motion for Summary Judgment, Plaintiff includes additional facts that should have been set forth in her statement of additional facts, as required under the Local Rule. Defendant complains that this defect prevents Defendant from properly responding to these additional facts because Local Rule 7.1(D)(3) requires Plaintiff to reply only to Plaintiff's statement of Additional Material Facts. Defendant further complains that many of the statements in Plaintiff's Response to Defendant's Statement of Undisputed Material Facts do not constitute specific denials of the facts set forth by Defendant, and are argumentative and evasive.

Local Rule 7.1(D) provides that "[a]ny filings not in compliance may be stricken by the court." The Seventh Circuit, in Waldridge v. American Hoechst Corp., held that the district courts have discretion to determine whether the Local Rules governing summary judgment motions should be applied strictly. Waldridge, 24 F.3d 918, 923 (7th Cir. 1994). Under Local Rule 7.1(D)(2)(b)(2), a party responding to a motion for summary judgment must: "List by number each fact from Section B of the motion for summary judgment which is claimed to be disputed. Each such claim of disputed fact shall be supported by evidentiary documentation referenced by specific page." Local Rule 7.1(D)(2)(b)(2). Plaintiff responds that she complied with the requirements of Local Rule 7.1(D)(2)(b)(2). The Court agrees. Plaintiff complied with the requirements of this rule by listing each fact that she believed was in dispute and by supporting such claim of disputed fact by providing evidentiary documentation with appropriate citations. The Court further finds that the plain reading of Local Rule 7.1(D)(2)(b)(4) does not require Plaintiff to list those facts which she cites as evidence of the existence of disputed material facts as "additional material facts." This rule states that, in responding to a motion for summary judgment, a party must "[l]ist and number each additional material fact raised in opposition to the motion for summary judgment." Local Rule 7.1(D)(2)(b)(4). Thus, this rule requires the party to list "additional material fact" not listed elsewhere in the non-moving party's response. Accordingly, Plaintiff complied with the requirements of the Local Rules in her response to Defendant's summary judgment motion. The Court further finds that Plaintiff's Response to Defendant's Statement of Undisputed Material Facts contains specific denials. The Motion to Strike is denied.

B. DEFENDANT'S MOTION TO STRIKE PORTIONS OF THE AFFIDAVIT OF SABRINA ORR

Defendant moves to strike ¶¶ 4, 5, 6, 9, 10, 13, and 15 of Orr's Affidavit pursuant to Federal Rule of Civil Procedure 56(e) which requires that an affidavit be based on personal knowledge of the affiant, set forth facts admissible in evidence, and show that the affiant is competent to testify to the matters stated in the affidavit. Fed. R. Civ. P. 56(e).

First, Defendant argues that statements contained in ¶¶ 4, 5, and 6 should be stricken because they fail to set forth sufficient basis for affiant's knowledge and thus are merely speculation. Paragraphs 4, 5, and 6 state as follows:

4. While assigned to the Paperwork Department, I regularly witnessed, on an almost daily basis, Cingular Wireless employees assigned to the Paperwork Department eat meals purchased from restaurants such as McDonald's or plates of food purchased from the cafeteria located within the Springfield Call Center at their work stations or in the "break room" while logged into the Cingular Wireless phone system and "on the clock." These employees included, but were not limited to, Travis Lipe, Tember Day, Nancy Moomy, Samantha Stout, Steve McMillan, (first name unknown) Lehman, Michelle (last name unknown) and Amy Burlison. I witnessed Cingular Wireless management personnel Jim Graham, Reba Roberts and Amy Burlison observe Paperwork Department employees eat meals at their work stations.

5. While assigned to the Paperwork Department, I regularly witnessed Cingular Wireless employees assigned to the Paperwork Department leave their workstations to go down to the cafeteria to purchase food while logged into the Cingular Wireless phone system and "on the clock." Amy Burlison would often accompany Paperwork Department employees as they left workstations to go down to the cafeteria to purchase food while logged into the Cingular Wireless phone system and "on the clock."

6. While assigned to the Paperwork Department, I regularly witnessed Cingular Wireless employees assigned to the Paperwork Department leave their workstations five or six times per day to take smoke breaks while logged into the Cingular Wireless phone system and "on the clock." These employees included, but were not limited to, Tim (last name unknown), Stephanie (last name unknown) Nancy Moomy, and Amy Burlison.

Orr Affidavit, ¶¶ 4-6. Plaintiff argues that Orr has sufficiently provided the factual support for the assertions in ¶¶ 4, 5, and 6 because Orr has personally witnessed the acts described in these paragraphs. The Court, however, strikes ¶¶ 4, 5 and 6 because Orr fails to set forth a sufficient basis of her knowledge. Even though Orr could have personally witnessed these employees (including, Travis Lipe, Tember Day, Nancy Moomy, Stephan McMillan) eating meals at their work stations, going to the cafeteria, or taking breaks, she fails to sufficiently set forth the factual basis of how she knew these employees were "logged" into the phone system and "on the clock" while engaging in the aforementioned activities.*fn1

Second, Defendant contends that ¶ 9 should be stricken because it contains statements that are merely speculation. In ¶ 9, Orr states as follows:

9. While I was assigned to the Paperwork Department, I observed Amy Burlison treat Nicole Alexander more harshly than she treated other employees assigned to the Paperwork Department. This disparity in treatment included Amy Burlison "writing up" Nicole Alexander for errors when other employees would simply receive verbal instructions to correct similar errors that they had made.

Orr Affidavit, ¶ 9. The statements contained in ¶ 9 are within a recognized hearsay exception, specifically Federal Rule of Evidence 801(d)(2)(D), and thus need not be stricken. Rule 801(d)(2)(D) states that a statement is not hearsay if it is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R.Evid. 801(d)(2)(D). Orr has personal knowledge of the facts stated in ¶ 9 concerning Burlison's "writing up" of Plaintiff because she witnessed the above event. Further, Amy Burlison is a manager of the Paperwork Department at Cingular. Any statement or conduct attributed to Amy Burlison concerning the scope of her employment with Cingular is non-hearsay.

Third, Defendant argues that ¶ 10 should be stricken because it contains a statement that fails to set forth sufficient basis of affiant's knowledge. Specifically, Defendant contends that the following statement in ¶ 10 should be stricken: "While in the break room finishing our lunches, Nicole and I were unaware that we were violating any Cingular Wireless policy by finishing our lunches in the break room as we were simply doing as we had been instructed to do by Lisa Holt." Orr Affidavit, ¶ 10. Moreover, Defendant contends that the above statement contradicts Plaintiff Alexander's deposition testimony. In her deposition, Plaintiff testified:

Q: Were you aware that you couldn't engage in personal business while on the clock, you were well aware of that?

A: Okay. See, I was aware of that. However, in my department, that was never enforced.

Q: Okay. But you were aware that was Cingular's policy that you could not do that?

A: Yes, I was aware that was a policy of the company, yes, I was.

Defendant's Motion for Summary Judgment, Exhibit A, Deposition of Nicole Alexander (Alexander Dep.) at 146. The above statement is stricken because it not only fails to provide sufficient factual support of Orr's knowledge regarding whether Plaintiff knew she was violating Cingular's policies, but also because the statement contradicts Plaintiff Alexander's deposition testimony.

Fourth, Defendant argues that ΒΆΒΆ 13 and 15 should be stricken because each contains hearsay statements. Paragraphs 13 and 15 provide statements attributed to Travis Lipe. Plaintiff argues that the assertions contained in these paragraphs are within a recognized hearsay exception, specifically Rule 801(d)(2)(D). The Court disagrees. The statements attributed to Lipe in these paragraphs were not made by Cingular's agent during the scope of his employment with Cingular; they were allegedly made during non-working hours. Thus, the statements ...


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