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Clark v. Cook County

January 26, 2009


The opinion of the court was delivered by: Judge George M. Marovich


Plaintiff Arnita Clark ("Clark") filed a three-count complaint in which she alleged that defendant Cook County violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., by failing to provide a reasonable accommodation, by terminating her employment and by retaliating against her for filing a charge of discrimination. Before the Court is defendant's motion for summary judgment and defendant's motion to strike. For the reasons set forth below, the Court denies defendant's motion to strike. The Court grants defendant's motion for summary judgment.

I. Background

a. Motion to Strike and Evidence Objections

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. As the Court notes on its website (and has mentioned in multiple opinions), the Court enforces Local Rule 56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). It is not enough at the summary judgment stage for either party to say a fact is disputed. The Court considers a fact disputed only if both parties put forth admissible evidence of her or its version of the fact. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court. The Court enforces Local Rule 56.1 with respect to both parties regardless of whether either party moves to strike non-complying portions, because the purpose of the rule is to make the Court's job manageable, not to give litigants additional ammunition to use against one another.

Based on Local Rule 56.1, defendant moves to strike portions of plaintiff's response to defendant's statement of material facts. This is unnecessary. As the Court has already explained, it does not consider facts that do not comply with Local Rule 56.1. The Court need not take the time to strike that which it can simply ignore. The Court will not strike plaintiff's pleading, and defendant's motion to strike is denied.

Next, the Court considers the parties' evidentiary objections. In response to defendant's statement of facts, plaintiff objected to the admissibility of a number of defendant's exhibits. Specifically, plaintiff objects that defendant's exhibits 5, 6, 7, 11, 13, 14, 15, 17, 18 and 19 are inadmissible hearsay. Defendant failed to include an affidavit authenticating the documents and establishing how they come within an exception (such as the business record exception) to the hearsay rule. Accordingly, the Court sustains plaintiff's objections as to the admissibility of those exhibits. See Woods v. City of Chi, 234 F.3d 979, 988 (7th Cir. 2001) ("Normally, . . . at the summary judgment stage, a party seeking to offer the business record must attach an affidavit sworn to by a person who would be qualified to introduce the record as evidence at trial."). The upshot is that defendant's fact paragraphs 17, 18, 26, 28, 29, 30, 33, 37, 38, 39, 40, 41, 42, 43, 48, 49 and 50 are not supported by admissible evidence and, hence, are not considered by the Court.

Defendant, too, objected to some of plaintiff's evidence. First, defendant objects, on the grounds of hearsay, to plaintiff's testimony that she was told by June Cole, defendant's director of rehabilitation services, that plaintiff could not be accommodated because she was not injured on the job. The objection is overruled. Admissions of party-opponents are not hearsay. See Fed. R. Evid. 801(d)(2). Thus, statements by defendant's employees that were made with respect to matters in the course of their employment and during the duration of their employment are not hearsay. Id. Next, defendant objects that plaintiff's exhibit L is hearsay and lacks foundation. The exhibit is a printout from a website that appears to be a tracking record for the United States Postal Service. No affidavit accompanies the exhibit. The objection is sustained.

B. Facts Relevant to the Motion

The following facts are undisputed unless otherwise noted.

Clark began working for Oak Forest Hospital in 1978 as a nurse's aide. Clark continued working as a nurse's aide until she was injured on the job in 1987 or 1988.

Clark returned to work after about four months. When she returned, she was under medical restrictions that prohibited heavy lifting and bending. The parties agree that Clark's restrictions were accommodated by placing her in a modified janitorial position. The parties disagree about where Clark worked from 1987 until 1998. Defendant asserts that Clark was a janitor at Oak Forest Hospital, and Clark asserts that she was a janitor at Robbins Health Center ("Robbins"). It does not matter. The parties agree that by 1998, Clark performed janitorial work at Robbins.

At Robbins, Clark's duties included emptying trash cans, cleaning sinks and filling paper towel holders and soap dispensers. Clark's official title was "building service worker" and her wages were paid from Oak Forest's budget. While she worked at Robbins, Clark walked approximately three hours per day in fifteen minute intervals. The rest of the day she sat. By 1999, Dr. Jacqueline Marshall ("Dr. Marshall") served as Medical Director at Robbins. Dr. Marshall sometimes assigned Clark additional administrative tasks (such as answering telephones and filing records) because she felt Clark did not have enough to do. At some point (and it is not clear from the record when), Dr. Marshall stopped giving Clark the additional administrative tasks because she was told (by whom it is unclear) that the administrative tasks were required to be performed by someone with a different union classification.

In June 2002, Clark had knee-replacement surgery and was granted a medical leave. Since then, Clark has been permanently limited in her ability to walk, squat, climb, stand for prolonged periods of time, bend, kneel or lift heavy objects. The parties agree that Clark had a disability, for purposes of the ADA, by 2003.

This is where the record gets foggy, because the parties' fact statements omit details and because some of the parties' facts were ...

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