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McPherson v. City of Chicago

June 10, 2008

HARRIETTE B. MCPHERSON, PLAINTIFF,
v.
CITY OF CHICAGO, DEFENDANT.



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

MEMORANDUM AND ORDER

City of Chicago hand laborers perform manual labor, including loading tools into work vans, collecting garbage, cleaning streets, shoveling snow, and cutting weeds and trees. Plaintiff Harriette McPherson, a hand laborer, sued the City of Chicago under Title VII, contending that the City: (1) is liable for undisputed sexual harassment by her former crew chief, Thomas Sadzak (Count I); (2) retaliated against her after she complained about Sadzak's sexual advances (Count II); and (3) negligently supervised and retained Sadzak and thus created a situation where the harassment could continue for five years (Count III).

The parties filed cross motions for summary judgment on Count I, the City moved for summary judgment on Counts II and III, and McPherson filed a motion to strike certain affidavits attached to the City's motion. For the following reasons, McPherson's motion to strike and the cross motions for summary judgment on Count I are denied, and the City's motion for summary judgment on Counts II and III is granted.

I. McPherson's Motion to Strike

McPherson seeks to strike affidavits submitted by the City (specifically, affidavits from Joseph Rodish, Joseph Chojnowski, John Drosos, and Mickey Grasz), contending that: (1) they improperly contradict prior deposition testimony; (2) the City failed to produce them in discovery; and (3) they are self-serving.

A. Do the Affidavits Improperly Contradict Deposition Testimony?

A deponent may not use an affidavit to change her prior deposition testimony. Miller v. A.H. Robins Co., 766 F.2d 1102, 1104-05 (7th Cir. 1985). She may, however, submit an affidavit if it explains her prior deposition testimony or relates to newly-discovered evidence. Miller, 766 F.2d at 1104. Here, McPherson asserts that portions of the City's affidavits are inadmissible because they contradict prior deposition testimony.

First, she contends that certain affidavits are inconsistent with other witnesses' deposition testimony. The only relevant contradictions, however, are between an affidavit and the deposition of the same affiant. Id. at 1104-05. Thus, the alleged inconsistencies between the affidavits from certain witnesses and deposition testimony from different witnesses do not require the court to strike the affidavits.

Second, McPherson asserts that Chojnowski and Drosos' affidavits are improper attempts to change their own prior deposition testimony. The court has confined its review to the alleged inconsistencies identified by McPherson. See Docket No. 58. The cited portions of the deposition testimony, while not word-for-word recitations of the subsequent affidavits, are generally consistent. Moreover, McPherson's parsing of the deposition and affidavit testimony is not the only possible way -- and often not a natural way -- to read these documents. Finally, the court will not blindly accept lay witnesses' testimony on dispositive legal issues. Thus, the motion to strike based on alleged inconsistencies is denied.

B. The City's Obligation to Produce the Affidavits

McPherson next contends that the City's obligation to supplement its discovery responses meant that it was required to provide her with affidavits used in support of its summary judgment filings (specifically, affidavits from Joseph Rodish, Joseph Chojnowski, John Drosos, and Mickey Grasz). A party must "seasonably amend" its prior discovery responses "if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e)(2). This rule prevents unfair surprise by ensuring that the other side receives adequate notice of new information. See Westefer v. Snyder, 422 F.3d 570, 584 (7th Cir. 2005); Gutierrez v. AT & T Broadband, LLC, 382 F.3d 725, 732-34 (7th Cir. 2004). Where information has "otherwise been made known" during the course of discovery, however, there is no duty to supplement because the other party has received adequate notice. See Fed. R. Civ. P. 26(e)(2) Advisory Committee's Note.

The parties dispute whether McPherson knew about the four witnesses who prepared affidavits for the City. The City correctly points out that all four witnesses were identified in discovery and McPherson deposed Chojnowski, Drosos, and Grasz. In addition, as discussed above, the affidavits of these three witnesses are consistent with the affiants' depositions. Because McPherson deposed these witnesses, she cannot claim that affidavits from them unfairly surprised her. See RIV VIL, Inc. v. Tucker, 979 F.Supp. 645, 661 (N.D. Ill. 1997) (declining to strike declaration submitted in support of a motion for summary judgment when it was consistent with positions taken by the moving party earlier in case and was based on data that had been disclosed in discovery).

With respect to Rodish, the City asserts that McPherson is responsible for her decision not to depose him. In support, it notes that McPherson's own supplemental Rule 26(a) disclosures identified Rodish as an individual "likely to have discoverable information" and McPherson herself testified at her deposition that Rodish had knowledge relevant to her harassment claim. Because McPherson knew that Rodish possessed relevant information and could have deposed him had she desired to do so, the court declines to strike Rodish's affidavit. See Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725, 733 (7th Cir. 2004) (where plaintiff knew of the affiant and knew that he possessed relevant information, the information contained in the affidavit the plaintiff sought to strike was "otherwise made known" to the plaintiff).

C. The Self-Serving Nature of the Affidavits

McPherson argues that the City's affidavits do not clarify the record, but instead are improperly self-serving. Generally, much if not all testimony introduced by a party via affidavit is self-serving, so a rule requiring the court to strike all self-serving testimony would require it to jettison virtually all affidavits. The Seventh Circuit has thus held that an affidavit can be self-serving if it does not contradict earlier deposition testimony and is otherwise admissible. See Rogers v. City of Chicago, 320 F.3d 748, 751 (7th Cir. 2003); see also Paz v. Wauconda Healthcare & Rehabilitation Centre, LLC, 464 F.3d 659, 664-65 (7th Cir. 2006). The court has already found that the affidavits do not contradict prior deposition testimony and McPherson does not contend that the affidavits are otherwise admissible. Thus, this argument is unconvincing. For all of these reasons, McPherson's motion to strike is denied.

II. Background

A. Local Rule 56

McPherson filed a motion seeking leave to exceed the 80-paragraph limit in Rule 56. McPherson requested extra paragraphs due to the large number of deponents and her desire to keep each paragraph short. The motion is granted.

The court also notes that it ordered the parties to submit a joint statement of facts in connection with their cross-motions for summary judgment, with separate supplemental statements of additional facts as necessary. The parties failed to comply with this order. Counsel for the City reports that McPherson's counsel failed to respond to its draft, so it simply submitted its own statement, as did McPherson. This is unacceptable. If counsel experiences difficulties, they should bring the situation to the court's attention, as opposed to forging their own path. Both sides have come perilously close to having their statements stricken. The court will not require rebriefing but admonishes counsel to strictly comply with briefing orders in the future.

This brings the court to McPherson's Rule 56 submissions. The local rules require the party moving for summary judgment to submit a statement of material facts consisting of short numbered paragraphs accompanied by citations to admissible evidence. Loc. R. 56.1(a). The opposing party must respond to each paragraph by either admitting or denying the allegations, and must specifically cite to the supporting evidence. Loc. R. 56.1(b)(3)(A).

Many of the paragraphs in McPherson's statement of facts do not contain appropriate citations to the record. Failure to comply with the local rules governing the form of summary judgment motions is not a "harmless technicality." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994). Moreover, the Seventh Circuit has unequivocally held that Rule 56 statements that fail to include "specific references to the affidavits, parts of the record, and other supporting materials relied upon" may be stricken at the court's discretion. See, e.g., Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997); see also Ciomber v. Cooperative Plus, Inc., - F.3d -, No. 06-3807, 2008 WL 2185848, at *6 (7th Cir. May 28, 2008) ("District courts are entitled to expect strict compliance with Rule 56.1") (internal quotations omitted).

In its discretion, the court declines to strike the unsupported portions of McPherson's Rule 56 statement. It nevertheless notes that it is not required to scour the record to unearth evidentiary support for her position. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-18 (7th Cir. 2004). In the interests of justice, the court examined McPherson's statement of facts and attempted to match the relevant evidence up with her submission. This task properly belongs to McPherson, whose failure to comply with the longstanding local rules governing summary judgment motions means that she has forfeited any ability to express dissatisfaction with the court's efforts to reach the merits despite the ...


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