The opinion of the court was delivered by: Joan B. Gottschall United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Detlef Sommerfield has been a Chicago Police Officer for many years. During much of that time, he served in the Chicago Police Department's ("CPD's") Eighth District. Sommerfield sued the City of Chicago (the "City") alleging that one of his supervisors at the Eighth District, Sergeant Lawrence Knasiak, engaged in a pattern of anti-Semitic and anti-German harassment against Sommerfield. Sommerfield is of German national origin, and he identifies as Jewish. Sommerfield also alleges that he was subject to other forms of discrimination based on his religion and national origin, and that, once he complained about this discrimination, his supervisors began retaliating against him. Sommerfield and the City have filed cross-motions for summary judgment.
Sommerfield joined the CPD in July 1994 and has continued to serve as a police officer since that time. (See Def.'s Ex. 1 at D0739.) By the year 2000, Sommerfield had been assigned to the CPD's Eighth District. He served on the third watch in the Eighth District until August 2007, when he received a requested transfer to the First District. (Def.'s Rule 56.1 Stmt. ¶ 1.) During much of Sommerfield's time at the Eighth District, Lieutenant Carson Earnest served as the Watch Commander and was responsible for assigning officers to specific beats or duties each day. (Id. ¶ 2.) Other senior officers who worked at the Eighth District with Sommerfield included Knasiak and Sergeants Betty Woods and Christine Deierl (formerly Christine Pickering). (Id. ¶¶ 3-6.) The parties dispute the extent to which these other officers, especially Knasiak, exercised control over Sommerfield's day-to-day activities.
Sommerfield alleges that, in approximately 2000, Knasiak began publicly making frequent offensive and hostile comments about Sommerfield's Jewish religion and German national origin:
Sgt. Knasiak would say to me and/or others at the Chicago Police Department:
1) why didn't Hitler kill all of you Jews; you should know, you are one; 2) burn Jew burn; 3) f--k--g Jew boy; 4) you Jews are bloodsucking parasites; 5) don't you two jagoffs go pulling over Jews and niggers all night; 6) Germans should be shot in the head for not getting rid of the Jew problem; 7) did your parents crawl from under the fence in the concentration camp; 8) f-k--g Germans can't do anything right; they missed a whole bunch of Jews and now they are living in this f--ked up country; 9) Germans are just like niggers, couldn't get rid of them then, can't get rid of them now; 10) how do you fit 1000 Jews inside of a car--by putting them in the ashtray and so forth. (Pl.'s Ex.1 ¶ 3.) The exact details of the harassment are somewhat hazy. Sommerfield cannot recall any specific dates on which harassing remarks were made. But he insists that Knasiak made these remarks repeatedly and continuously over multiple years. In affidavits provided to the court, some of Sommerfield's co-workers corroborate Sommerfield's account, although none of these other officers are able provide many specifics.
Sommerfield avers that he complained repeatedly to Knasiak, Earnest, Woods, and Deierl. (Pl.'s Ex. 1 ¶¶ 4-5.) Sommerfield complained to CPD's Internal Affairs Division ("IAD") about harassment in March 2004, and an official investigation or complaint register ("CR") was initiated on March 16, 2004. (Pl.'s Ex. K at D0819.) IAD investigator Christopher Taliaferro conducted the investigation into Sommerfield's CR, and as a result, on April 30, 2007, the Superintendant ordered that Knasiak be suspended. In June 2004, Sommerfield filed a charge against the City with the Equal Employment Opportunity Commission ("EEOC"). (Def.'s Ex. 1 at D0761.) The EEOC investigated the charge and issued a determination on November 29, 2004 stating that "evidence obtained in the investigation establishes reasonable cause to believe that [CPD] violated Title VII by harassing [Sommerfield] based on his national origin, German, and religion, Jewish." (Pl.'s Ex. 17.)
Sommerfield alleges that, after complaining, the harassment continued and that his supervisors began inflicting further acts of discrimination. According to Sommerfield, he was often assigned undesirable duties, was forced to use his own car, to work alone, to work in dangerous parts of the city, and had his starting times changed regularly. (Pl.'s Ex. 1 ¶¶ 6-17.) On March 15, 2004, Knasiak initiated a CR against Sommerfield for alleged insubordination. (Def.'s Ex. 16 at D0998.) After a lengthy investigation, the Superintendent of Police, Philip Cline, ordered that Sommerfield be suspended on June 14, 2006. (Id. at D0987.) Other police officers initiated CRs against Sommerfield in January 2003, December 2004, and April 2005. (Def.'s Ex.1 at D1090, D1148, D0938.) As a result, Sommerfield served two more suspensions and was reprimanded once. (Id. at D1071, D02128.) Sommerfield was also denied a position as a K-9 handler sometime in 2006 or 2007, even though he was on a list of well-qualified candidates. (Def.'s Rule 56.1 Stmt. ¶ 22.)
On July 12, 2006, Sommerfield filed an additional EEOC charge complaining of retaliation. The EEOC investigated the charge and issued a determination on August 14, 2009 that there was "reasonable cause to believe that [Sommerfield] was retaliated against for engaging in protected activity, in that he was subjected to different terms and conditions of employment, discipline and suspension in violation of Title VII." (Pl.'s Ex. C.)
Sommerfield filed his original complaint in this case on June 6, 2006. (Doc. 1.) The most recent version, Sommerfield's Second Amended Complaint (the "Complaint"), was filed May 10, 2008. That Complaint asserted five counts. Count I alleges discrimination and harassment based on religion. Count II alleges discrimination and harassment based on national origin. Count III alleges retaliation. And Counts IV and V each allege violations of 42 U.S.C. §§ 1981 and 1983. Sommerfield's case has a long history which need not be discussed for the purposes of this opinion. At this point, the only defendant in this case is the City, and it has moved for summary judgment on all of Sommerfield's claims. (Doc. 413.) Sommerfield has made cross motions for summary judgment and has moved to strike the City's affirmative defense. (Docs. 354, 355, 375.) There are a number of other related motions that remain pending which the court will also address.
A. Sommerfield's Motion for Sanctions
As a preliminary matter, Sommerfield has filed a motion for sanctions against the City. (Doc. 488.) Sommerfield complains that the City failed to disclose evidence in response to his document requests. The allegedly withheld evidence is apparently two resolutions passed by the Chicago City Council congratulating Knasiak on his retirement from CPD on November 13, 2007 and February 6, 2008. The resolutions are, of course, publicly available. As the City points out, when searching for "Lawrence Knasiak" on Google, the first two search results link to the evidence.
Even if Sommerfield could show that the City's conduct is technically sanctionable, the court does not see any reason to believe the City acted in bad faith or that Sommerfield has suffered any prejudice whatsoever. Sommerfield contends that this latest slight by the City is part of a pattern of discovery misconduct. In support of this argument, Sommerfield points to court orders regarding depositions and settlement negotiations which the City allegedly violated, and he contends, the City repeatedly acted to obstruct depositions. All of this earlier complained of conduct occurred more than two years ago. This is ancient history, and the court declines Sommerfield's offer to peer back in time to examine the City's conduct in 2007 and 2008.
Sommerfield's motion is denied.
B. Summary Judgment Standard and Procedure
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
At the summary judgment stage, the court should view the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor. Cedillo v. Int'l Ass'n of Bridge & Structural Iron Works, Local Union No. 1, 603 F.2d 7, 11 (7th Cir. 1979). However, the evidence presented at this stage must comport with the Federal Rules of Evidence and be admissible at trial, United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010), or it must consist of affidavits "made on personal knowledge, set[ting] out facts that would be admissible in evidence, and show[ing] that the affiant is competent to testify on the matters stated," Fed. R. Civ. P. 56(e)(1).
In addition to complying with the Federal Rules, the parties must also adhere to the Local Rules for the Northern District of Illinois and this court's Standing Order Regarding Motions for Summary Judgment. Local Rule 56.1 provides that the moving party shall serve and file:
1) any affidavits and other materials referred to in Fed. R. Civ. P. 56(e);
2) a supporting memorandum of law; and
3) a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law . . . .
The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.
L.R. 56.1(a). The party opposing summary judgment is required to respond with its own supporting evidence, memorandum of law, and "a concise response to the movant's statement . . . ." L.R. 56.1(b). The opposing party's Rule 56.1 statement should also contain "any additional facts that require the denial of summary judgment." Id. The opponent must include references to its supporting materials. Id. Local Rule 7.1 sets a page limit of fifteen pages for all briefs. Any briefs exceeding that limit must contain a table of contents and table of cases, and, if a party fails to seek prior leave to file a brief in excess of the limit, the brief is subject to being stricken by the court. L.R. 7.1. This court's Standing Order makes clear that all argument must be contained in the party's brief, and not in the Rule 56.1 statement. Standing Order at 1-2. The court may deny a motion for summary judgment for failure to comply with the rules.
The purpose of the procedures set forth in these rules is not to burden counsel with technical requirements. Rather, this process is designed to assist the court in focusing on the actual disputes in the case. The Rule 56.1 statements should be limited to key facts upon which the summary judgment motion will succeed or fail. Each paragraph should contain a single fact, and a reference to the party's best evidence for that fact. A long list of references to the record is not necessary because, at this stage, the party need only show that a dispute exists. This is not the opportunity for each side to try and prove its case. If multiple references are necessary to support a paragraph, that suggests the paragraph includes an inference, rather than a fact. All inferences from the facts should be contained in the party's brief. See Standing Order at 2. The opposing party's response should be brief. If the fact is undisputed, nothing more need be said. If the fact is disputed, the opponent should simply state "Disputed," give no more than a brief explanation, and include a reference to the record. Again, one or two references to the record is sufficient.
The parties in this case have failed to conform their motions to this procedure. The City's Rule 56.1 statement includes seventy-nine paragraphs-one less than the maximum of eighty permitted by Local Rule 56.1(a). But each paragraph contains numerous facts. This bulking up of the statement makes it very difficult for the opposing party to respond concisely, and it is almost impossible for the court to discern where the true dispute lies. Sommerfield's failure to comply with the rules is even more egregious. Sommerfield has divided his motion for summary judgment into two separate motions (not including his additional motion to strike the City's affirmative defense). For each one, Sommerfield has filed a lengthy motion filled with argument in addition to an oversized memorandum of law. He includes no table of cases. The court could strike Sommerfield's motions for failure to comply with Local Rule 7.1, but, as shown below, each one is easily disposed of on the merits. Both parties have violated the letter and spirit of the rules regarding the Rule 56.1 statements by including lengthy argument in these documents and by loading up each paragraph with long string citations to portions of the record.
As a result, these statements are mostly unhelpful to the court. The court has little confidence that a second round of briefing would improve the situation, so the court proceeds to address the merits of each motion.*fn1
C. Sommerfield's Motion to Strike the City's Affirmative Defense and Motions for Summary Judgment
Sommerfield has moved to strike the City's affirmative defense. Sommerfield, himself, recognizes that the motion is untimely. Federal Rule of Civil Procedure 12(f) permits a party to make a motion to strike an affirmative defense within 21 days of being served with the answer containing the defense. The city filed its amended answer on April 20, 2009. (Doc. 315.) Sommerfield's motion was filed on September 14, 2009. (Doc. 354.) On its own initiative, however, the court may choose to address the merits of a motion to strike. Williams v. Jader Fuel Co., 944 F.2d 1388, 1399 (7th Cir. 1991). Looking to the merits in this case, it is clear that Sommerfield's motion should be denied.
Sommerfield contends that, in violation of Magistrate Judge Cole's May 12, 2008 order (Doc. 199), the City expanded its affirmative defense based on the Supreme Court cases Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). In the May 2008 order, Judge Cole denied Sommerfield's request to strike the City's Farragher/Ellerth defense as lacking sufficient factual definition. Judge Cole concluded that although the City's answer included only a bare bones statement of the defense, Sommerfield had sufficient notice through the City's interrogatory responses that the defense would "be based on plaintiff's failure to have availed himself of procedures that the City has put in place to deal with the kind of discrimination claims involved in this case." (Doc. 199 at 13.) Sommerfield thus understood that the Farragher/Ellerth defense required the City to prove that it "had a policy and procedure in place to resolve and handle discrimination complaints" and that Sommerfield failed to avail himself of the appropriate procedure. (Id. (quoting Sommerfield's motion).) Judge Cole ordered that, "If, however, the defense is something other than Mr. Sommerfield's mere failure to have complained about the discrimination and retaliation alleged in the complaint, the City must inform Mr. Sommerfield of the additional aspects of that defense." (Id. at 14.) This court later affirmed Judge Cole's order. (See Doc. 224.)
In an amended answer, the City rephrased its bare bones defense as follows: If plaintiff were subjected to a hostile working environment under applicable law, defendant is not liable because defendant exercised reasonable care to prevent and promptly correct any harassing behavior and plaintiff unreasonably failed to take advantage of preventative or corrective avenues or otherwise avoid injury. (Doc. 315 at 36 ¶ 3.) This statement of the defense does not appear to materially differ from the defense as described in Judge Cole's order. The court does not agree with the premise of Sommerfield's motion that the City has somehow expanded its defense.
Sommerfield suggests that Judge Cole's order had the effect of limiting the City to arguing only the second element of the Farragher/Ellerth defense: that Sommerfield failed to avail himself of the City's procedure for addressing discrimination. Sommerfield contends that he was denied discovery regarding the existence of procedures to prevent and correct discrimination. This argument is nonsensical. The City can only establish the second element of the defense if it first establishes that it had a procedure in place for responding to discrimination. And Judge Cole found that Sommerfield had already obtained discovery of the City's policy. (Doc. 199 at 13.) The contours of City's defense are clear, and the motion is denied.
Sommerfield has also filed a separate motion for summary judgment on the City's Farragher/Ellerth defense. (Doc. 354.) Sommerfield's motion first argues that, because Supreme Court case law requires the City to prove both elements of the Farragher/Ellerth defense, and because the court previously limited the City to arguing only the second element, the City cannot establish the defense as a matter of law. If this argument is not completely disingenuous, it is certainly meritless. Neither Judge Cole nor this court would have refused to strike the City's defense while, at the same time, limiting the defense in a way which would make it impossible to establish the defense. In any event, the court will deny Sommerfield's motion as moot. The Farragher/Ellerth defense only becomes necessary if Sommerfield can first establish that he was subjected to discrimination by a supervisor. See Ellerth, 524 U.S. at 765. As explained below, Sommerfield has failed to make this required showing, so the affirmative defense will never be at issue.
Sommerfield's other motion for summary judgment is also easily disposed of. Sommerfield contends that the City's internal investigation which resulted in the suspension of Knasiak is an admission of guilt, and that the admission along with other evidence conclusively establishes liability on each of the counts of the complaint. Sommerfield cites cases dealing with Federal Rule of Evidence 801(d)(2) and party admissions. Even if it were true that evidence of the investigation is admissible-and the court does not so hold at this time-Sommerfield cites no authority for the proposition that the admission binds the city in this litigation. The City and the CPD officials involved with this case have denied that any harassment or act of discrimination or retaliation occurred. Sommerfield, as the plaintiff, bears the burden of establishing a prima facie case of discrimination. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) ("[T]he ultimate burden of persuading the trier of fact that the ...