The opinion of the court was delivered by: Judge George M. Marovich
MEMORANDUM OPINION AND ORDER
Plaintiff Lindsey Haugen ("Haugen") filed against defendant Tishman Speyer Properties, L.P. ("Tishman Speyer") a first amended complaint in which she alleged that she was discriminated against and retaliated against in violation of Title VII of the Civil Rights Act of 1964. Haugen alleges that she worked for Tishman Speyer from March to December 2005 and that, during that time, she was subjected to a hostile environment by her supervisor, Lenny Sciascia ("Sciascia"), and her Regional Manager, Mike Norton ("Norton"). Attached to plaintiff's amended complaint are: (1) plaintiff's charge of discrimination, which she filed on February 15, 2006; (2) a reasonable cause finding issued by the EEOC on August 31, 2009; and (3) a notice of right to sue, which the EEOC issued on October 27, 2009. Plaintiff timely filed her complaint on January 23, 2010.
Defendant has filed a motion for summary judgment as to its affirmative defense, laches. For the reasons set forth below, the Court denies defendant's motion for summary judgment.
Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. The Court enforces Local Rule 56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This does not, however, absolve the party putting forth the fact of its duty to support the fact with admissible evidence. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court.*fn1
Only a few of the facts defendant included in its statement of facts relate to plaintiff Haugen. Many of the facts defendant put forth relate to litigation filed by Lauren Hobson, who, it appears, worked at Tishman Speyer at the same time as Haugen and was represented by an attorney who, at one point, also represented Haugen. The following facts are undisputed unless otherwise noted.
The other former Tishman Speyer employee, Hobson, filed with the EEOC a charge of discrimination on December 16, 2005. Before obtaining a notice of right to sue, Hobson filed suit in federal court. That case was quickly dismissed for failure to obtain a notice of right to sue from the EEOC. Hobson asked the EEOC for a right to sue letter, which she received on or about January 8, 2008. She filed suit again. Tishman Speyer and Hobson settled the case in February 2009, and on February 17, 2009, Hobson's complaint was dismissed with prejudice. In September 2009, the EEOC destroyed its file on Hobson.
For her part, Haugen filed her charge with the EEOC on February 15, 2006. In February 2010, Tishman Speyer requested (and subsequently obtained) a copy of plaintiff's EEOC file. The file did not include any written request from plaintiff for a notice of right to sue.
The following facts are disputed. Tishman Speyer asserts that if plaintiff had filed suit earlier, it would have made one claim on its insurance for both suits (Hobson's and Haugen's) instead of making two separate claims. Tishman Speyer's deductible is $100,000.00. Plaintiff points out that Tishman Speyer had notice of plaintiff's claim in February 2006 and was required, under the terms of the insurance, to have alerted its insurance carrier at that time about plaintiff's claim.
II. Summary Judgment Standard
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). When making such a determination, the Court must construe the evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party." Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir. 2005). Where, as here, a defendant moves for summary judgment with respect to an affirmative defense, the burden of proof rests with the defendant. Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 475 (7th Cir. 2009).
Employers may raise a laches defense to an employment discrimination claim under Title VII. National RR Passenger Corp. v. Morgan, 536 U.S. 101, 121-122 (2002). In National RR Passenger Corp. v. Morgan, the Supreme Court concluded that a hostile environment claim is "composed of a series of separate acts that collectively constitute one 'unlawful employment practice'" such that where "an act contributing to the claim occurs" within the time for filing a charge of discrimination, the "entire time period of the hostile environment could be considered by a court for the purposes of determining liability." Morgan, 536 U.S. at 117. The Supreme Court also recognized that they were not leaving employers defenseless against hostile environment claims that last a long period of time, because employers could raise the defense of laches. Morgan, 536 U.S. at 121-122. A laches defense is also appropriate where an employee fails, for an unreasonable period of time, to obtain a notice of right to sue from the EEOC and the employer suffers prejudice. Smith v. Caterpillar, Inc., 338 F.3d 730 (7th Cir. 2003).
To establish the defense of laches, the employer must show (1) a lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense. Pruitt v. City of Chi., 472 F.3d 925, 928 (7th Cir. 2006). The Seventh Circuit has said that the "decision to apply laches rests on a sliding scale: the longer the plaintiff delays in filing her claim, the less prejudice the defendant must show in order to defend on laches." Caterpillar, Inc., 338 F.3d at 734. The prejudice must be material which means "it affects the substantial rights of the defendant to such a degree that it justifies the equitable relief of barring the plaintiff's claims." Caterpillar, 338 F.3d at 734. Even if the defendant establishes laches, that does not necessarily mean outright dismissal is appropriate. See Pruitt, 472 F.3d at 929 ("A less severe consequence would be to carve off the aspects of the plaintiffs' ...