The opinion of the court was delivered by: Stiehl, District Judge
Before the Court are several dispositive motions. DefendantsKarena Gleason, Nelson Adams, Bill Peyton and Pete Wessel filed a motion for summary judgment (Doc. 46). Defendant Department of Children and Family Services (DCFS) filed a separate motion for summary judgment (Doc. 52). Plaintiff has filed a lengthy response to these motions with some 27 exhibits comprising 127 pages (Doc. 63) and a supplement to the response as to the motion filed by DCFS (Doc. 67), which includes 18 more exhibits and 174 pages. Defendants have filed replies at Docs. 74 and 75.
Plaintiff has her own motion for partial summary judgment with respect to Count V (Doc. 48), to which defendants have filed a joint response (Doc. 58).
The parties have filed opposing motions to strike (Docs. 77 and 80), and defendant DCFS has filed a supplement to its motion for summary judgment, raising the issue of collateral estoppel (Doc. 94). In response to the supplement, plaintiff has filed her own motion for collateral estoppel (Doc. 101), to which defendants have filed a joint reply (Doc. 104).
Plaintiff, who is a black female, was an employee of the Illinois Department of Children and Family Services at all times related to the complaint. The record reveals that plaintiff was a Child Protection Advanced Specialist, an investigator, with the Murphysboro field office of DCFS. Plaintiff filed a six count amended complaint (Doc. 35) alleging that the defendants discriminated against her on the basis of race and disability, and alleging intentional infliction of emotional distress by defendants Gleason and Adams. Specifically, plaintiff alleges that from December, 2003 through November, 2007, she was subject to race discrimination and retaliation by her direct supervisor, Gleason, by Gleason's supervisor, Adams, by the Regional Administrator, Peyton, and by Wessel, who was the Labor Relations Specialist for the Southern Division.
Count I alleges disparate treatment and racial discrimination in violation of the Fourteenth Amendment and § 1981 against all defendants; Count II alleges hostile work environment in violation of the Fourteenth Amendment and § 1981 against all defendants; Count III alleges disability discrimination under the ADA against defendants Gibson, Adams, and DCFS; Count IV alleges that defendant DCFS engaged in FEMA leave interference; Count V alleges defendants Gleason, Adams, and DCFS retaliated against plaintiff for filing this action, all in violation of the ADA, and §§ 1981 and 1983; and Count VI alleges intentional infliction of emotional distress against Gleason and Adams which allegedly caused her to take leave from April, 2006 thru January, 2007.
Specifically, the Amended Complaint alleges that the plaintiff was the only black investigator on her "team" from 2003 until 2005. That in 2005 she was evaluated as having work deficiencies, including spelling and grammar errors, and that after she came under the supervision of defendant Gleason, plaintiff was selectively assigned to cases in poor, black neighborhoods which the white investigators did not want. Plaintiff alleges that she objected to this selective assignment, but that her complaints were to no avail, and she was repeatedly harassed. She charges that defendants Adams and Gleason began a campaign to make false disciplinary complaints against plaintiff, with the goal of forcing her to resign or to establish a basis for firing her. Plaintiff alleges that despite an existing policy for "progressive disciplinary" action, plaintiff was not afforded the appropriate protection of that policy and was subject to sham hearings. Plaintiff further alleges that she had a medically certified disability, the result of a childhood trauma, which led to an auditory processing impairment. She asserts that this impairment resulted in trouble with grammar and spelling and hearing within a group. She alleges that she requested reasonable accommodations for her disability, which were denied by defendants. Finally, she avers that she was terminated in retaliation for the filing of her ADA claims and this claim.*fn1
The record reveals that plaintiff's discharge by DCFS was based upon falsification of records.*fn2 Plaintiff filed an action with the Civil Service Commission appealing the decision of the DCFS to fire her. The Administrative Law Judge, determined that the first falsification charge (that she asked a Ms. Lynn for permission to interview the younger siblings of the victim, but that Ms. Lynn refused that request) was supported by evidence and gave a basis for her firing.
I. Cross Motions to Strike
The parties each seek to strike matters in the file related to the various motions for summary judgment, therefore, the Court will address these motion before turning to the dispositive motions. Initially, defendants jointly moved to strike much of plaintiff's affidavit, on the grounds that it contains argument and opinion and is rife with immaterial matters; that it contains matters on which plaintiff is not competent to testify; includes hearsay; and includes matters without a foundation. Defendants have filed a response (Doc. 75) which details the specifics of their objections to the plaintiff's affidavit, exhibits and documents. In response to the defendants' motion to strike, plaintiff has filed a motion of her own seeking to strike defendants' motion to strike (See motion at Doc. 80).
This exchange of motions is indicative of the manner in which this litigation has proceeded. The parties have taken every opportunity to over-paper the Court's file with lengthy exhibits, irrelevant materials and other documents that, frankly, only muddy the waters with respect to the resolution of the issues before the Court. Plaintiff seeks to strike the defendants' motion to strike on the grounds that it is too long. Although the Court does have rules limiting memoranda of law, and requires parties to seek leave to file memoranda that exceed that length, defendants' motion to strike does not fall within that restriction. It seems, also, rather obviously, that the defendants would not have been placed in the position of filing a 56 page motion to strike if plaintiff had not seen fit to file questionable, lengthy exhibits in support of her response to the motions for summary judgment. Therefore, the Court DENIES plaintiff's motion to strike defendants' motion to strike (Doc. 80). Plaintiff has not directly replied to the motion to strike (stating that it would require some 150 more pages of pleadings for plaintiff to adequately respond to the defendants' motion to strike).
This Court is well aware of the standards which apply, under Fed. R. Civ. P. 56, to affidavits. When filing or responding to summary judgment motions, the parties often submit affidavits to support their relative positions. Plaintiff, as the non-moving party, must do more than simply rest on her pleadings to defeat summary judgment, she must set forth a genuine issue of material fact which requires trial. It is well settled that "to demonstrate a genuine issue of fact, the non-moving party must do more than raise some metaphysical doubt as to the material facts; the non-moving party must come forward with specific facts showing that there is a genuine issue for trial." Keri v. Barod of Trustees of Purdue University, 458 F.3d 620, 628 (7th Cir. 2006), (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586(1986); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir.1992)). It is also well settled that "conclusory allegations and self-serving affidavits, if not supported by the record, will not preclude summary judgment." Keri 458 F.3d at 628 (citing Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir.1997)).
Keeping in mind the legal standards governing summary judgment motions, the responses to the motions and any exhibits and affidavits to any of these pleadings, the Court declines to engage in a line-by-line, detailed ruling on defendants' motion to strike. The Court DENIES defendants' motion to strike (Doc. 77), but notes that it will not consider improper pleadings in support of the motions or responses. The Court also DENIES plaintiff's second motion for extension of time to file response to the defendants' motion to strike as moot (Doc. 81).
II. Pending Summary Judgment Motions
Defendants seek summary judgment on all claims. Plaintiff seeks partial summary judgment on Count V (the retaliation claim). A district court will grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating that judgment should be granted as a matter of law. See Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1999) (citing Celotex, 477 U.S. at 323). Once a motion for summary judgment has been made and properly supported, however, the non-movant has the burden of setting forth specific facts showing the existence of a genuine issue for trial. See id. In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable and justifiable inferences in that party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, the Court will not resolve factual disputes, weigh conflicting evidence, or make credibility determinations. See Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001); see also Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996).
Although the parties disagree on many of the facts which underlie this cause of action, the record reveals that plaintiff claims in her affidavit that she is a disabled veteran with a 10% disability which includes auditory processing, and problems with reading and grammar.*fn3
Plaintiff was employed by DCFS in 2000 in its Belleville office, and, while there, was allowed to use a tape recorder for training sessions, team and staff meetings. She transferred to the Murphysboro office of DCFS in 2003. During the first year and a half in the Murphysboro office, she did not seek the use of any accommodations for her disability. At various times in plaintiff's employment with DCFS she was evaluated as having trouble with spelling and grammar. In 2003 these issues were noted, but as part of the evaluation, it was noted that plaintiff, with the help of a computer system, improved the quality of her documentation, and had the ability to be a "competent and effective investigator." (Doc. 63, ex D). Plaintiff was supervised by defendant Gleason beginning in December of 2003. The first evaluation by Gleason does not mention any problems with plaintiff's grammar and spelling. (Id. ex. E).
Plaintiff was first negatively evaluated by defendant Gleason in 2004 for grammar and spelling. Plaintiff then asked for a proofreader and to use a tape recorder, and Gleason gave plaintiff a "Supervisor's Note" stating that she, Gleason, would proofread plaintiff's work. In August of 2004 plaintiff received a suspension for poor work performance. It is agreed by the parties that at this time DCFS was understaffed. Plaintiff asserts that other workers made errors, similar to those she was making.*fn4
Defendant DCFS has recently filed a supplement asserting that plaintiff is collaterally estopped from raising her claims against DCFS as a result of the ruling by the Sangamon County Circuit Court in Altman v. State of Illinois Civil Service Commission and Illinois DCFS, No. 09-MR-28, which affirmed the decision of the administrative law judge for the Civil Service Commission finding that plaintiff's discharge was proper because plaintiff falsely documented notes in a client file which was good cause for discipline, including termination. (Doc. 94, exhibits 35 & 36). The Circuit Court determined that DCFS had legitimate grounds for taking the adverse employment action. DCFS asserts that plaintiff cannot, based upon the principles of collateral estoppel, now claim that any action was based on discriminatory animus. Plaintiff, in turn, ...