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Sherden v. Cellular Advantage

June 9, 2009

EDWARD SHERDEN, PLAINTIFF,
v.
CELLULAR ADVANTAGE, INC. D/B/A ANSWER WIRELESS, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Currently before the Court is Defendant' s motion for summary judgment [39] and Plaintiff's motion to strike all -- or in the alternative, portions -- of Defendant' s Local Rule 56.1 statement of facts [47]. For the reasons set forth below, both motions are denied.

Plaintiff, Edward Sherden ("Sherden"), filed this lawsuit on February 21, 2007. Sherden's complaint alleges that Defendant, Cellular Advantage, Inc. d/b/a Answer Wireless, Inc. ("AWI"),*fn1 violated Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) ("Title VII" or "the Act") when it fired Sherden -- yet, merely suspended another employee -- for committing a workplace infraction. Both employees were accused of engaging in personal, unauthorized use of their employer' s online shipping account. Sherden is African-American; the other employee is Caucasian. Sherden filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") on January 12, 2006. (Pl. SOAF, Ex. K.) The EEOC issued a right to sue letter on December 16, 2006. (Answer ¶ 16.)

AWI' s answer states that its actions were based on legitimate, non-discriminatory reasons. (Id. at 6.) Its motion for summary judgment invokes the familiar McDonnell Douglas burden-shifting framework, arguing (1) that Sherden cannot make out a prima facie case of discrimination and (2) that Sherden cannot show that the non-discriminatory reasons for Sherden's termination proffered by AWI are pretextual.

Sherden's motion to strike makes multiple objections to AWI's Local Rule ("L.R.") 56.1 Statement of Facts and argues that AWI' s summary judgment motion should be denied as a result of the various defects. Because of the shaping role of L.R. 56.1 fact statements in resolving motions for summary judgment, the Court first addresses Sherden' s motion to strike.

I. Plaintiff's Motion to Strike Defendant's L.R. 56.1 Statement is Denied

A party who wishes to argue that portions of an opposing party' s statement of facts contain errors or are inadmissible on evidentiary grounds may file a motion to strike those portions of the statement. See, e.g., Goltz v. University of Notre Dame du Lac, 177 F.R.D. 638, 639-40 (N.D. Ind. 1997). "Pleadings that do not conform with the local rules may be stricken at the discretion of the court." Id. at 640 (citing Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir. 1990)); Pfeil v. Rogers, 757 F.2d 850, 858 (7th Cir. 1985); Graham v. Security Sav. & Loan, 125 F.R.D. 687, 688-89 (N.D. Ind. 1989), aff'd, 914 F.2d 909 (7th Cir. 1990)). Indeed, it is the task of the Court, with or without a motion to strike, to review statements of material fact and to eliminate from consideration any arguments, conclusions, and assertions that are unsupported by the documented evidence on record yet offered in support of fact statements. See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324 F. Supp. 2d 917, 920 n.1 (N.D. Ind. 2004). The Court is capable of redacting the statement of facts and disregarding interpretation or analysis of the facts, or unfounded assertions of fact found in the statement. The Court' s scrutiny of fact statements applies equally to the party seeking summary judgment and to the party opposing it.

For example, testimony must be based on personal knowledge. See, e.g., Joseph P. Caulfield & Assocs., Inc. v. Litho Prods., Inc., 155 F.3d 883, 888 (7th Cir. 1998) (testimony "that was necessarily speculative and lacking in foundation * * * is insufficient"); Fed. R. Civ. P. 56(e). In addition, although the evidence supporting a factual contention need not be admissible itself, it must represent admissible evidence. By way of illustration, a deposition transcript usually is not admissible at trial but may be used in support of summary judgment; however, a hearsay statement made during a deposition does not constitute adequate evidentiary support for a factual proposition. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) ("hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial, except that affidavits and depositions * * * are admissible in summary judgment proceedings to establish the truth of what is attested or deposed").

Likewise, and pertinent here, where a party offers with its summary judgment materials a document that is referred to in an affidavit, the document must be admissible. "To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Scott v. Edinburg, 346 F.3d 752, 760 n.7 (7th Cir. 2003) (quoting 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2722, at 379-80 & 382-84 (1998)). To meet the requirements of Rule 56(e), a document that is referred to in an affidavit must be attached to the affidavit and be a "sworn or certified copy." Fed. R. Civ. P. 56(e)(1). See also Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008); Fed. R. Evid. 803(6), 902(11).

Apparently aware of the instructions to litigants on the Court' s website, -- which informs parties that "[m]otions to strike all or portions of an opposing party' s Local Rule 56.1 submission are disfavored"*fn2 --Sherden includes various objections within his Response to Defendant' s Statement of Facts [46]. That is the preferred practice.*fn3 By including objections in its responses to fact statements, a party aids the Court in determining which facts are in dispute. The efficiency gains generally associated with summary judgment are served, and often are increased. Sherden's separate motion to strike, however, has less salutary effects. That is true as a general matter and particularly here, given that the objections in Sherden' s separate motion are at once duplicative and less detailed than the objections submitted as part of Sherden's response.

In sum, the Court need not rule on the particulars of Sherden' s motion to strike portions of AWI' s L.R. 56.1 Statement of Facts because any statements or responses which contain legal conclusions or argument, are evasive, contain hearsay, are not based on personal knowledge, are irrelevant, are not supported by evidence in the record, are based on exhibits which have not been authenticated, and so forth, will not be considered by the Court in ruling on AWI's summary judgment motion. For the foregoing reasons, and consistent with the discussion above, the Court denies Sherden' s motion to strike [47]. In resolving AWI' s motion for summary judgment, the Court will rely only on compliant fact statements that are properly supported by admissible*fn4 evidence. See Fed. R. Civ. P. 56(e); L.R. 56.1; see also Davis v. Elec. Ins. Trs., 519 F. Supp. 2d 834, 836 n.1 (N.D. Ill. 2007) (denying a separate motion to strike because the trial judge "did not rely on inadmissible evidence or statements that were not supported by the record"); Lawrence v. Bd. of Election Com'rs of City of Chicago, 524 F. Supp. 2d 1011, 1014 (N.D. Ill. 2007).

One additional matter related to Sherden's motion merits further discussion, as it potentially touches upon the Court' s jurisdiction. Sherden argues that the Court should strike

Defendant' s L.R. 56.1 Statement of Facts in its entirety because Defendant failed to include facts related to venue and jurisdiction. (Pl. Mot. ¶¶ 10-11.) Local Rule 56.1(a)(1)(B) directs a summary judgment movant to include "all facts supporting venue and jurisdiction in this court." Sherden argues that AWI has failed to comply with the rule. Nonetheless, the Court denies Sherden's motion to strike AWI's fact statement in its entirety: just as district courts have authority to demand strict compliance with L.R. 56.1 (Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004)), they also have the power to forgive transgressions (Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995)). The exercise of such discretion is appropriate in this case: Sherden' s complaint alleges, and AWI's answer admits, that the Court has federal question jurisdiction over this matter*fn5 pursuant to Title VII, as well as 28 U.S.C. §§ 1331 and 1343. (Compl. ¶ 1; Answer ¶ 1.) Similarly, AWI has conceded that venue properly lies in this court, both because its answer admits as much and because Federal Rule of Civil Procedure 12(h) prevents AWI from challenging venue at this stage of the litigation. (Compl. ¶ 2; Answer ¶ 2.)

II. Facts

The Court takes the relevant facts primarily from the parties'respective Local Rule ("L.R.") 56.1 statements: Defendant' s Statement of Facts ("Def. SOF") [41], Plaintiff's Response to Defendant' s Statement of Facts ("Pl. Resp. Def. SOF") [46], Plaintiff's Statement of Additional Facts ("Pl. SOAF") [48], and Defendant' s Response to Plaintiff's Statement of Additional Facts ("Pl. Resp. Def. SOAF") [53].*fn6

AWI is headquartered in Iowa. The company sells and services cellular phones and cellular products for U.S. Cellular Company. It has stores in Iowa, Illinois, Nebraska, and Missouri -- including several in the "Chicagoland area." (Def. SOF ¶¶ 1-2.)*fn7 There are twelve Chicagoland stores, including one in Schaumburg (id. ¶ 4), where the operative facts in this case took place (id. ¶ 22). The "area manager" for these stores is Rick Turco, who works in McHenry, Illinois. (Id. ¶ 3.) Sherden' s store manager at the time of Sherden' s termination*fn8 was Jake Faust. (Id. ΒΆΒΆ 23, 25.) The Schaumburg store was ...


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