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O'Grady v. Commonwealth Edison Co.

October 19, 2010


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Mary F. O'Grady filed charges against defendant Commonwealth Edison Co. in the U.S. Equal Employment Opportunity Commission ("EEOC"), alleging that defendant discriminated against her based on her age and sex in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 291 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. The EEOC issued plaintiff a Notice of Right to Sue and plaintiff filed the present suit within the ninety-day limitations period. Defendant has moved for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons stated below, the court grants defendant's motion for summary judgment.


Defendant hired plaintiff as a probationary meter reader in defendant's Joliet, Illinois office on October 29, 2007. In her first week of employment, plaintiff received five days of training on reading meters. Over the next eight workdays, plaintiff accompanied veteran meter readers on their routes, observing them read meters and reading some herself. After this training period, plaintiff began reading meters on her own.

Plaintiff began a typical day by arriving the Joliet office, attending a safety meeting conducted by meter reader supervisor Bruce Douglas, and obtaining her "book" for the day and keys to a company car. The "book" was a handheld computer containing plaintiff's route for the day. Plaintiff would input the numbers from a meter into the "book," which would then be uploaded into a computer in the office.

Defendant presents records of these entries showing that plaintiff made several errors and read meters at a rate well below other probationary meter readers during her probationary period. Plaintiff argues that these records should not be considered because they are inadmissible hearsay or not founded upon personal knowledge. Alternatively, plaintiff offers several explanations for her poor performance. First, she lists several unforeseen circumstances including weather conditions, unchained dogs, and locked gates. Second, plaintiff argues that she did not receive as much overtime as younger, male probationary meter readers. Third, plaintiff notes that other probationary meter readers would receive their "books" back from the previous day. She believes that this decreased her scores in comparison to her colleagues' scores. Fourth, plaintiff argues that Douglas assigned her random jobs and errands that took her away from her meter-reading duties. Defendant does not contest these facts.

After plaintiff's first thirty, sixty, and eighty days of work, Douglas reviewed her performance, as well as the performances of the other probationary meter readers. Douglas rated probationary meter readers on scale from one to four -- four being the best score -- in eight categories, including "Quality of Work/Reading Accuracy." Plaintiff's scored substantially lower than other probationary meters readers, especially in the "Quality of Work/Reading Accuracy" category, where she received a score of one for each review period. Plaintiff contends that she never received any of the results from these reviews, but admits that Douglas told her that she received a poor score after her sixty-day review. Douglas told her she would need to perform better or she would not pass the probationary period. Plaintiff then asked Douglas to retrain her so that she could perform better, which he said he would. Douglas never fulfilled this promise. On January 24, 2008, Douglas terminated plaintiff, stating, "The only thing I could get you on was your percentage of meters read."


Plaintiff objects to several statements in defendant's Local Rule 56.1(a) Statement of Material Facts. Plaintiff alleges that the business records relied upon by defendant to demonstrate plaintiff's poor performance are inadmissible hearsay and lack foundation, and that several statements in Douglas's affidavit are not based on personal knowledge. Thus, plaintiff argues, those facts cannot be taken into consideration in support of defendant's motion for summary judgment.

Affidavits and other documents used to support a motion for summary judgment must contain information that would be admissible at trial. Judson Atkinson Candies, Inc. v. LatiniHohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008). Defendant's business records are not hearsay, however. A statement is hearsay only if it is used "to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Therefore, if defendant uses the records to prove the effect they had on Douglas's review, not plaintiff's poor performance, they are not hearsay. See Stewart v. Henderson, 207 F.3d 374, 377 (7th Cir. 2000) (finding statements used by other hiring committee members admissible for summary judgment because they were used to prove the effect on the decisionmaker); Cotter v. Village of Maple Park, No. 04 C 1794, 2006 WL 218161, at *2 (N.D. Ill. 2006) (finding statements between police officers admissible in 56.1 statement to prove effect on listener). Defendant's use of the business records to show that Douglas believed plaintiff was performing poorly and that Douglas made his termination decision based on these records is permissible under Fed. R. Evid. 801(c).

Even if defendant uses plaintiff's work records to prove the matter asserted, that plaintiff actually performed poorly, the records are still admissible as an exception to hearsay under Fed. R. Evid. 803(6). Rule 803(6) states that business records are admissible to prove the truth of the matter asserted if "a custodian or other qualified witness" can certify that the record is compiled in the course of "a regularly conducted business activity" and that it is "the regular practice of that business activity to make the . . . record . . . ." The "custodian or other qualified witness" need not be the individual that actually compiled the record, however. Thanongsinh v. Bd. of Educ., 462 F.3d 762, 777 (7th Cir. 2006). Rather, the custodian must "be familiar with the company's recordkeeping practices." Id. (quoting U.S. v. Jenkins, 345 F.3d 928, 935 (6th Cir. 2003)). For purposes of summary judgment, the party seeking to use the business record must merely demonstrate that the evidence contains "sufficient indicia of trustworthiness to be considered reliable." Id. (quoting Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000)).

In the instant case, Douglas qualifies as a "custodian or other qualified witness," as mandated by Rule 803(6). In his affidavit, Douglas lays out how records of a meter reader's performance are created: "The meter reader enters each meter reading into the handheld [computer] and that information is downloaded into the Company's computers at the end of the day." Moreover, Douglas's position as supervisor of the Meter Reading Department of Commonwealth Edison required him to use the computer printouts for performance reviews of probationary meter readers like plaintiff. Clearly, Douglas is familiar with defendant's recordkeeping practices because he is familiar with both how the information is generated and how the information is transmitted to him. Therefore, defendant's business records are admissible as an exception to the hearsay rule.

Plaintiff also challenges several assertions in defendant's Local Rule 56.1(a) Statement of Material Facts as not being based on personal knowledge as required by Fed. R. Civ. P. 56(e)(1). Also, because evidence in support of a summary judgment motion must be admissible at trial, the affidavits must also satisfy Fed. R. Evid. 602: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may . . . consist of the witness's own testimony."

Plaintiff objects to paragraphs 7 through 14 of defendant's Local Rule 56.1(a) Statement, arguing that those paragraphs contain evidence outside the personal knowledge of the witness. These paragraphs come from Douglas's affidavit and relate to the day-to-day activities of meter readers, the contents of the collective bargaining agreement between defendant and the meter readers' union, and the process of reviewing meter readers' performance. As the meter reader supervisor for defendant's Joliet office, Douglas has personal knowledge about all of these matters, particularly the performance reviews at ...

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