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Allen v. Potter

November 17, 2009


The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge


The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the court is the motion by Defendant for summary judgment (#9). I have carefully considered the arguments and evidence submitted by the parties. As explained more fully below, the motion is GRANTED.


The Plaintiff is proceeding pro se. She has been notified, by both the Defendant and by the Clerk of this Court, of her obligation to respond properly to this dispositive motion. See, Defendant's Motion for Summary Judgment (Doc. #9, p.1) and Notice re filing of summary judgment motion. (Doc. #12). Plaintiff's initial response to the Motion was to seek a continuance in order to obtain an attorney. On the same date that Motion was filed, she filed a Response to the Motion for Summary Judgment.

Her motion to continue was granted to a limited extent: she was given a short continuance to find an attorney. See Text Order of 9/1/09. That Order noted, however, that a longer continuance was not allowed, because she had proceeded for over 2 years without counsel and without seeking counsel. The Order also noted that if Plaintiff did not retain counsel, the Response she had filed would stand as her response to the summary judgment motion. Plaintiff did not obtain counsel, but instead of letting her Response stand, she has continued to file evidence (i.e. affidavits) in support of her Response. See Docs. #15 and 16.

As a side note, this is not the Plaintiff's first lawsuit against her employer. She has litigated two previous lawsuits in this Court. In case 98-1238, Allen was represented by counsel; she sought to litigate numerous (by Defendant's count, about 130) allegations of perceived discriminatory treatment, most dealing with denial of overtime. Summary judgment was granted in favor of the Defendant; the Seventh Circuit affirmed in an unpublished opinion, Allen v. Potter, Case No. 03-3618, Sept. 8, 2004 (7th Cir.).

In case 04-1262, Allen, represented by counsel, sued again, this time alleging that denial of two overtime opportunities was discriminatory or retaliatory. Once again, summary judgment was entered in favor of Defendant. The Order granting summary judgment held in part that the loss of two overtime opportunities did not constitute an adverse employment action. That case was not appealed.

In the case now before this Court, Allen's complaint states that the issue is whether the Postal Service "discriminated against plaintiff on the basis of race (African-American), sex - female, retaliation and hostile work environment when on Sunday, May 2, 2004, she was denied 8 hours of penalty overtime by white managers, Mike Gaa...and Jerry Redshaw..." Her claim is that her direct supervisor had assigned her to work those hours, but Gaa and Redshaw changed the schedule. She believes that they did so for improper purposes.

Discovery Issues and Preliminary Matters

On December 24, 2008, Defendant served on Plaintiff written discovery. The Interrogatories sought information about the facts that are alleged, such as factual details and the names of witnesses and other participants. Defendant's Request for Production of Documents sought eleven categories of documents, including all documents relating to any EEO complaints she filed regarding the issues raised in this litigation, any notes Plaintiff made, any documents that Plaintiff intended to use at trial, and any documents relative to her claim that denial of annual leave was discriminatory, hostile, or retaliatory. The Request also sought a computation of damages.

Allen did not respond to the written discovery within the 30 days allowed by the Federal Rules, although she admits that she received the discovery (See Doc.#13, response to Defendant's Statement of Undisputed Facts #4). On February 25, 2009, defense counsel sent Allen a letter reminding her that she had 30 days to respond to the discovery and requesting prompt compliance. Allen neither responded to the discovery nor answered the letter.

Allen should have provided this information to Defendant as part of the disclosures mandated under Fed.R.Civ.P. 26(a)(1). This Rule requires a party to disclose, without awaiting a request from the opposing party, the identity of all witnesses, along with a summary of the subject of their information; a copy of documents that will be used to support the party's position; and a computation of damages. Fed.R.Civ.P. 26(a)(1)(A). Her failure to provide this information means that she "is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1).

Although Allen is proceeding pro se, pro se plaintiffs are obligated to comply with the requirements of the Federal Rules and with the local rules of the various courts. As the Supreme Court has held, "in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). See also, McMasters v. U.S., 260 F.3d 814, 817 (7th Cir. 2001); Myles v. U.S., 416 F.3d 551, 552 (7th Cir. 2005). At no time in her Response to the motion for summary judgment - which clearly raised this issue - did she offer any sort of substantial justification for her failure to respond, nor can it be said that her failure was harmless. Defendant still has none of the information that Plaintiff was obligated to provide voluntarily. As a result, the Court will disregard any portions of her belatedly-filed Affidavits which rely on information that should have been provided as part of mandatory disclosures or in response to written discovery.

In addition to the written discovery served in December of 2008, Defendant sent to Allen Requests for Admission on February 25, 2009. These Requests were accompanied by a cover letter advising that "[i]f you fail to deny the Request for Admission within the 30 day period the requests will be deemed admitted." The Request itself contained the following notice: "Plaintiff is cautioned that under Rule 36, a matter is deemed admitted unless it is ...

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