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Frieson v. County of Cook

July 21, 2010


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


Plaintiff Nichole Frieson claims that she was discriminated against on the basis of her sex when she was harassed by a homosexual co-worker. She also claims retaliation for prior EEO activity. Defendant Cook County filed a motion for summary judgment [71] on all of Plaintiff's claims. For the following reasons, the Court grants Defendant's motion.

I. Background

A. Plaintiff's Response to Defendant's Statement of Facts

It is the function of the Court, with or without a motion to strike, to review carefully statements of material facts and to eliminate from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement. 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). "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)). The Court's scrutiny of material statements of facts applies equally to the party seeking summary judgment and the party opposing it.

In the instant case, Defendant complains that Plaintiff has not complied with the local rules. In some instances, Defendant is correct. In her response to Defendant's statement of facts, she states that a number of facts are "not disputed" but then attempts to modify the statement by adding information. See Plaintiff's Response to Defendant's Statement of Facts ("SOF") ¶ ¶ 9, 11, 12, 17, 18, 24, 27, 28, 35, 37, 44, 49, 50, 63, 64, 68, 69, 71, 74, 76, 77. For example:

17. In March of 2006, a "Last-Chance Agreement" was entered into by Plaintiff, her union and Stroger Hospital. Plaintiff signed it on March 17, 2006 along with two of her union representatives. (Ex. B, Pltff. Dep. at p. 86, ll. 16-19; p. 87, ll. 2-20; Ex. I, Pltff. Dep. Ex. 6, Last Chance Agreement dated March 2006; Ex. E, Affidavit of Alisia Hill ¶ 8)

RESPONSE: Not disputed. Plaintiff, however, maintains that this agreement was signed under duress. Further Plaintiff states that the agreement was not explained to her and she was not allowed to have an attorney present. Ex. A, Frieson Affidavit, ¶ 26, 27.

Providing new or additional facts in a response is improper. See, e.g., Hanson v. Prairie Material Sales, Inc., 2001 WL 1105097, at *1 fn. 1 (N.D. Ill. Sept. 20, 2001) ("Plaintiff has provided responses which fail to deny Defendant's statement and instead attempt to supply additional facts * * * * It is deemed as admitted all 56.1 responses which fall into this category."); see also Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2004) ("Rule 56.1(b)(3)(B) provides the only acceptable means of * * * presenting additional facts.") (citations omitted).

In other instances, Plaintiff "does not dispute the quoted testimony" but attempts to modify a statement of fact by adding new information, citing only to her affidavit as support. Plaintiff does this in her responses to Defendant's SOF ¶ ¶ 64, 68, 69, 71, 74 and 77. Plaintiff's affidavit, created after her deposition, introduces new additional facts and characterizes her deposition testimony in a different way. All of Plaintiff's additional facts rely upon Plaintiff's affidavit for support. However, Plaintiff's affidavit does not comply with the requirements of Rule 56(e). An affidavit "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56 (e)(1). Although an affidavit does not necessarily need to be notarized to be admissible, an unsworn affidavit must be declared true "under penalty of perjury," signed, and dated to be admissible. See 28 U.S.C. § 1746; Cornelius v. Hondo Inc., 843 F. Supp. 1243, 1247 (N.D. Ill. 1994); Mazeika v. Architectural Specialty Products, Inc., 2006 WL 2850480, at *1 n.1 (N.D. Ill. Sept. 29, 2006). Plaintiff's affidavit is not notarized, the information contained within it is not declared true "under penalty of perjury," and it is not dated. This Court recently has held that an affidavit that is "not dated and does not contain the requisite 'under penalty of perjury' language * * * must be stricken."*fn1 Hu v. Village of Maywood, 2010 WL 276704, at *5 (N.D. Ill. Jan. 19, 2010). Because each of Plaintiff's fifty-four additional statements of fact relies solely upon Plaintiff's own affidavit, which does not comply with the requirements of Rule 56(e), this Court will not consider them.

Furthermore, a plaintiff cannot defeat a motion for summary judgment by "contradict[ing] deposition testimony with later-filed contradictory affidavits." Ineichen v. Ameritech, 410 F. 3d 956, 963 (7th Cir. 2005). See also Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). As the Seventh Circuit further explained in Bank of Illinois, "we have long followed the rule that parties cannot thwart the purpose of Rule 56 by creating 'sham' issues of fact with affidavits that contradict their prior depositions * * * * If such contradictions were permitted * * * the very purpose of the summary judgment motion -- to weed out unfounded claims, specious denials, and sham defenses -- would be severely undercut.'" Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168-69 (7th Cir. 1996).

In sum, any statements or responses that contain legal conclusions or argument, are evasive, contain hearsay or are not based on personal knowledge, are irrelevant, or are not supported by evidence in the record will not be considered by the Court in ruling on Defendant's motion for summary judgment. Any paragraph or fact that is not supported by record evidence will be disregarded. Indeed, the Court has not relied on any evidence as to which the admissibility is disputed in its disposition of Defendant's motion for summary judgment.

B. Facts

1. Plaintiff's Employment

Plaintiff Nichole Frieson began working for Cook County on June 16, 2003, as an electrocardiogram ("EKG") technician (also referred to as a telemetry technician) at John H. Stroger Hospital ("Stroger Hospital"). As an EKG technician, Plaintiff was responsible for observing and monitoring the cardiac activity of patients on monitors, receiving the EKG reports for the prior shift, and observing and reporting any abnormalities to the nurses and doctors. Plaintiff and Defendant agree that Plaintiff's job included these duties: to observe and interpret cardiac activity as seen on the monitor to ensure prompt discovery of abnormal rhythms; to notify the appropriate staff member so proper intervention can be done; to document and maintain patient records according to the required guidelines; to assist in general unit functions and indirect patient care; to function as a team member; and to facilitate cohesiveness and quality patient care.

The EKG technicians at Stroger Hospital monitor EKG's on two floors in six different areas: 8th floor East, 8 West, 8 South, 7 East, 7 West, and 7 South. Plaintiff typically was assigned to 8 East, but would "float" to relieve co-workers in other areas when they would take their lunch break. The number of patients on each floor ranged from seven or eight up to twenty-two. Two technicians were assigned on the 7th floor and two on the 8th floor, for a total of four (although sometimes three) technicians per ...

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