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Dear v. Nicholson

August 27, 2008


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant's motion for summary judgment. For the reasons stated below, we grant the motion for summary judgment in its entirety.


Plaintiff Deborah Dear ("Dear") alleges that she was employed as a Clinical Nurse Manager ("CNM") with Hines VA Hospital's emergency department beginning in February, 2004. (Compl. Par. 7). Dear alleges that, as a CNM, Dear was a supervisory nurse. (Compl. Par. 7). On or around June 2, 2006, Dear was allegedly demoted by a new manager, Ruth Jennetten ("Jennetten"), to a non-supervisory staff nurse position in the Telephone Care Program. (Compl. Par. 14, 18); (SF Par. 7). Dear alleges that she had an exemplary career as a CNM and that the reason she was demoted was due to the fact that she is an African American. Dear claims that on July 18, 2006, she filed a race discrimination complaint with the Department of Veteran's Affairs. According to Dear, after she filed her complaint Dear was subject to disparate treatment which included the assignment of unwanted shifts. Dear alleges that she subsequently amended her complaint to the Department of Veteran's Affairs to include a claim of retaliation. (Compl. 2).

Dear filed the instant action on April 27, 2007, and specifically includes a claim alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000e et seq., and a Title VII retaliation claim. Defendant moves for summary judgment on all claims.


Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that 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). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


I. Local Rule 56.1

Defendant and Dear have both filed statements of material facts under Local Rule 56.1. Pursuant to Local Rule 56.1, each party is required to respond to the opposing party's statement of facts and either admit or deny each fact. A denial is improper if the denial is not accompanied by specific references to admissible evidence or portions of the record representing admissible evidence. Dent v. Bestfoods, 2003 WL 22025008, at *1 n.1 (N.D. Ill. 2003); Malec v. Sandford, 191 F.R.D. 581, 585 (N.D. Ill 2000)(stating additionally that "[t]he purpose of the 56.1 statement is to identify for the Court the evidence supporting a party's factual assertions in an organized manner: it is not intended as a forum for factual or legal argument"). Under Local Rule 56.1, any facts included in a party's statement of facts that are not properly denied by the opposing party are deemed to be undisputed. Local Rule 56.1; Dent, 2003 WL 22025008, at *1 n.1. Courts are not "obliged in [the] adversary system to scour the record looking for factual disputes and may adopt local rules reasonably designed to streamline the resolution of summary judgment motions." Walridge v. American Hoechst Corp., 24 F.3d 918, 920, 922 (7th Cir. 1994).

In the instant action, Defendant asserts that an EEO investigative report ("Report") summarizes interviews with Dear's supervisors, in which the supervisors explain their reasons for demoting Dear to a non-supervisory position. (SF Par. 14). The Report contains examples of Dear's deficiencies as a supervisor, such as one instance in which the entire emergency room staff "complained about Dear's supervisory deficiencies and threatened to walk off the job if Dear remained as their supervisor." (SF Par. 14). The Report also includes statements by Dear's second-level supervisor, Paula Steward ("Steward"), describing Dear's lack of supervisory skills and failure to promptly address the staff complaints in a timely manner when requested to do so by Steward. (SF Par. 15, 17). Dear denies the existence and content of the Report, but makes no reference to admissible evidence in her denial. (RSF Par. 14, 17). Instead, Dear's denial refers the court to Dear's statement of additional facts. (R SF Par. 14, 17). Dear is required to do more than simply direct the court to some of her filings. In addition, Dear must specifically identify the evidence or portion of the record that supports her denial. Dear, for example, in support of her denial of Defendant's statement of material fact paragraphs 14 and 17, states: "See Plaintiff's additional facts paragraphs 25-30 and 43." (R SF Par. 14). The statements of additional facts referenced by Dear contain a massive amount of facts and citations. Statement of additional fact paragraph 29 alone has ten subparts that each has its own facts and citations. Dear fails to delineate which facts or citations would support her denials. Dear cannot avoid admitting facts by obscuring her responses with general references to the record. See, e.g., Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007)(stating that for summary judgment "the nonmoving party must identify with reasonable particularity the evidence upon which the party relies"); Crawford v. Indiana Harbor Belt R. Co., 2005 WL 1243420, at *2 (N.D. Ill. 2005)(stating that "a general reference, without additional information regarding the exhibits being referred to and the page numbers asks the court to scour the record in search of supporting evidence, which Local Rule 56.1 is intended to avoid"); Tulley v. Tharaldson Enterprises, Inc., 2001 WL 1002406, at *1 (N.D. Ill. 2001)(stating that a citation generally to portions of the record without specifying matters such as page numbers does not satisfy Local Rule 56.1).

A motion for summary judgment is the time when the parties must present the court with the evidence that would be used to convince a trier of fact to accept that party's version of the facts. Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007). Dear has failed to support her denial with any evidence to rebut Defendant's facts, thereby making the Report and Defendant's statements relating to Dear's job performance admissible and undisputed. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008)(stating that "[d]istrict courts are 'entitled to expect strict compliance' with Rule 56.1 . . . and a court does not abuse its discretion when it opts to disregard facts presented in a manner that does follow the Rule's instructions")(quoting in part Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)).

II. Dear's Discrimination Claim

Defendant moves for summary judgment on Dear's discrimination claim.

A. Direct Method of Proof

When attempting to prove a claim of discrimination, a plaintiff has the option of proceeding under either a direct method of proof or an indirect method of proof. The direct method of proof requires a plaintiff to establish a discriminatory motivation through direct or circumstantial evidence. Rudin v. Lincoln Land Cmy. Coll., 420 F.3d 712, 720 (7th Cir. 2005). Direct evidence of discrimination would constitute an "admission by" the defendant that the adverse employment action was taken on the "basis of" her membership in a protected class. Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006). Alternatively, a plaintiff can present circumstantial evidence under the direct method of proof, but such evidence must be sufficient to create "'a triable issue of whether the adverse employment action of which [the plaintiff] complains had a discriminatory motivation.'" Rudin, 420 F. 3d at 721 (quoting Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997)). Under the direct method of proof a defendant can show that there is a "convincing mosaic of discrimination against the plaintiff." Walker v. Board of Regents of University of Wisconsin System, 410 F.3d 387, 394 (7th Cir. 2005).

In the instant action, Dear has not alleged that Defendant admitted to demoting Dear because of her race. Nor has Dear put forth sufficient circumstantial evidence to support her allegation that race motivated the Defendant to demote Dear. Dear contends that Jennetten made racist statements to Dear. (SAF Par. 34). However, the only alleged statements identified by Dear as racist statements are when Jennetten recommended that Dear change her "voice" and her "facial expressions" while talking to staff. (SAF Par. 34); (Dear Dep. 41-43). Dear has not shown that Jennetten's statements had anything to do with Dear's race. The undisputed facts show that the statements related to Dear's methods of communicating with employees and were an evaluation of Dear's job performance. Dear's communication skills were clearly one aspect of her poor work performance as the Report clearly illustrates when it addresses Dear's improper communication with staff when disciplining the staff and in improving morale. (SF Par. 14, 15).

When Dear was asked at her deposition why she believed that Jennetten was referencing Dear's race when Jennetten mentioned Dear's voice and facial expressions, Dear could not provide any solid reason for coming to such a conclusion. (Dear Dep. 42). Dear admitted that her belief that Jennetten was making a racist comment is based, not upon objective facts, ...

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