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Frazier v. American Pharmaceutical Partners

December 20, 2007


The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow


Plaintiff Johnny Frazier ("Frazier") filed a three-count amended complaint against defendant American Pharmaceutical Partners, Inc., now known as Abraxis BioScience, Inc. ("Abraxis"), for employment discrimination pursuant to Title VII of the of the Civil Rights Act of 1964 and 28 U.S.C. § 1981. Counts I and III, brought pursuant to Title VII and § 1981, respectively, allege that Abraxis Pharmaceutical discriminated against Frazier on the basis of his race by discharging him and treating him differently from employees not of his race. Count II, brought pursuant to Title VII, alleges that Abraxis, after rehiring Frazier, retaliated against him for his filing of a charge of discrimination with a government civil rights agency. Presently before the court is Abraxis's motion for summary judgment. For the following reasons, defendant's motion [#33] is granted.


The court has jurisdiction to hear this case pursuant to 28 U.S.C. §§ 1343 (civil rights claim) and 42 U.S.C. § 2000e-5(f)(3) (Title VII claims).


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 issue of fact exists, the court must pierce the pleadings and assess the proof as presented in the pleadings, 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 that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). In response, the non-moving party cannot rest on mere 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 is one which might affect the outcome of the suit. 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 non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). In the context of employment discrimination, "summary judgment is warranted where the evidence, interpreted favorably to the plaintiff, could not persuade a reasonable jury that the employer had discriminated against the plaintiff." Jones v. Union Pacific R.R. Co., 302 F.3d 735, 739--40 (7th Cir. 2002) (internal quotation marks and alterations omitted).


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." N.D. Ill. R. 56.1(a). 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." Id. Part (b) of Local Rule 56.1 requires a party opposing summary judgment to file, inter alia, a concise response to the movant's statement of material facts. N.D. Ill. R. 56.1(b). For purposes relevant here, that statement is required to include "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." N.D. Ill. R. 56.1(b)(3). The rule makes clear that "[a]ll 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." N.D. Ill. R. 56.1; Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000) (noting "the consequence for noncompliance-the movant's assertions of material fact are deemed admitted").

As required by Local Rule 56.1, Abraxis, the moving party, filed a statement of material facts. Def.'s R. 56.1 Statement of Material Facts, Dkt. No. 36. In response to the motion for summary judgment, Frazier purports to submit "a supporting Memorandum of Law and Statement of Facts." Dkt. No. 43, at 1. Neither of the two documents filed by Frazier in response to defendant's motion, however, could be said to comply even partially with the requirements of Local Rule 56.1(b)(3). The first is a one-page document entitled "Plaintiff's Response to Motion for Summary Judgment," which merely requests that the court deny defendant's motion for summary judgment and refers to the second document. Dkt. No. 43, at 1. The second is a twelve-page memorandum entitled "Plaintiff's Memorandum in Support of Its [sic] Response to Defendant's Motion for Summary Judgment." Pl.'s Resp., Dkt. No. 44, at 1. Although this memorandum is composed largely of sentences containing factual allegations followed by specific citations to the record, the document is organized not in the form of short numbered paragraphs, as required by Local Rule 56.1, but as a legal memorandum, in the form of long unnumbered paragraphs organized under broad subject headings, such as "(1) Discrimination" and "(2) Retaliation." Pl.'s Resp., Dkt. No. 44, at 6. Nowhere, moreover, does plaintiff respond to defendant's Local Rule 56.1 statement of material facts as required by Local Rule 56.1(b). Plaintiff's failure to file such a response requires that, to the extent that defendant's material facts were submitted in conformity with Local Rule 56.1 and are adequately supported by the record, those facts be deemed admitted.


Frazier, who is African-American, began working at Abraxis in June 2004. At first, Frazier was a contract, temporary-to-hire employee in the company's Microbiology Finished Product Group, but in December 2004 he became a regular full-time employee in the same group. From June 14, 2004 until December 15, 2005, plaintiff worked the first shift and reported to Finished Group Supervisor Christine Rizk ("Rizk"). Rizk reported to Jeff DeSario ("DeSario"), Manager of the Microbiology Department. As part of the Finished Product Group, Frazier's primary responsibility was to perform "sterility testing" of products. This task involved obtaining samples from the manufacturing department, preparing them for testing, transferring them to the "sterility suite" within the microbiology lab, and performing tests. Within the sterility suite, there are two "hoods"-benches that provide air flow to keep out contaminants-which means that two individuals may conduct sterility testing at the same time.

Plaintiff was the person primarily responsible for doing sterility testing on the first shift.Due to contamination that was discovered in the manufacturing area in the summer of 2005, new protocols were put into place which required triplicate sterility testing of products and other more stringent cleaning processes. These new protocols required Frazier and other employees to work longer hours. Frazier was paid for any overtime he worked. Frazier was also required, on occasion, to retrieve empty blue drums from the loading dock, in addition to his primary sterility testing duties. The drums were then filled with sterility suite waste, such as glassware used for testing, and placed in the hallway outside of the lab for removal by one of the Finished Product Group employees.

Beginning in the summer of 2005, Supervisor Rizk required each employee in the Finished Product Group to provide her with a list of his or her daily activities. Frazier did so from at least July 2005 to September 2005 but stopped around September 16, 2005 when, after seeing some of the summaries piled up in Rizk's mailbox, he came to believe the lists were not being reviewed by anyone.

On or about December 13, 2005, plaintiff noticed that lots of a product named Vancomycin would be coming up for testing. Frazier told Rizk that, because of the new triplicate testing protocol, he anticipated that the Vancomycin would put a strain on the department. In particular, Frazier was concerned that it would now take him three times as long-seven and half hours instead of the usual two and half-to conduct the testing of the Vancomycin. Rizk told Frazier that she would do what she could in order to assist him in getting the testing done. On December 14, Rizk showed Frazier a list of his assignments for the following day, which included sterility testing for Vancomycin and two other drugs, and told him that she had done her best with the schedule.

Upon arrival at work on the morning of December 15, Frazier found on his desk the same list that Rizk had shown him the night before. Plaintiff again complained to Rizk that the testing would require him to stay longer than his scheduled shift and that he would like other lab employees to assist him. Rizk told him that she had done the best she could with his assignments. From about 7:00 a.m. to 10:00 a.m., Frazier gathered, labeled and prepped the samples for testing. At 10:00 a.m., Frazier, Rizk, and DeSario (to whom Rizk reported) met to discuss Frazier's complaints about his workload. They told ...

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