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Gronimo Hernandez v. Forest Preserve District of Cook County

September 21, 2011


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


Plaintiff Gronimo Hernandez filed this civil rights action against the Forest Preserve District of Cook County ("District") on October 7, 2008, alleging national origin discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. Before the Court is the District's second motion for summary judgment [71], along with three motions to strike [82, 84, 86] filed by Defendant. For the reasons stated below, the Court denies the District's three motions to strike [82, 84, 86] and grants the District's second motion for summary judgment [71].

I. Background

A. Motions to Strike

Before the Court are three motions to strike filed by Defendant. These three motions were filed after the Court previously denied a motion to strike filed by Defendant in conjunction with its first motion for summary judgment. The Court's ruling on the previously filed motion to strike was as follows:

Defendant asks the Court to strike Plaintiff's additional fact number 6 on the ground that Plaintiff lacks personal knowledge of the matter asserted. On its web page (see, this Court has included among its Case Management Procedures a link for Summary Judgment Local Rule 56.1 Submissions. That link contains the following statement: Motions to strike all or portions of an opposing party's Local Rule 56.1 submission are disfavored. Under ordinary circumstances, if a party contends that its opponent has included inadmissible evidence, improper argument, or other objectionable material in a Rule 56.1 submission, the party's argument that the offending material should not be considered should be included in its response or reply brief, not in a separate motion to strike. Local Rule 56.1(a) provides the means for implementing the Court's preferred practice: [i]f additional material facts are submitted by the opposing party pursuant to section (b), the moving party may submit a concise reply in the form prescribed in that section for a response. Local Rule 56.1 also requires that assertions advanced as proposed statements of material fact be supported by admissible record evidence, and where such evidence is lacking, the Court is within its discretion to disregard the statement.

See, e.g., Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). Consistent with these procedures, Defendant's motion to strike [51] is respectfully denied; however, the Court may disregard any assertions of fact that lack proper evidentiary support.

As with the prior motion to strike, the current motions to strike challenge three affidavits submitted by Plaintiff based on the requirement that affidavits "be made on personal knowledge, setting forth such facts as would be admissible in evidence, and showing affirmatively that the affiant is competent to testify to the matters stated therein." Drake v. Minnesota Mining & Manufacturing Co., 134 F.3d 878, 887 (7th Cir. 1998); see also Joseph P. Caulfield & Assocs., Inc. v. Litho Prods., Inc., 155 F.3d 883, 888 (7th Cir. 1998) (testimony "that was necessarily speculative and lacking in foundation * * * is insufficient."); Fed. R. Civ. P. 56(e).

To the extent that Defendant believes that the Court's approach to motions to strike has changed over the course of the year between summary judgment motions, it has not. The Court is capable of disregarding unfounded assertions of fact found in Plaintiff's statement. 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. Consistent with its obligations under the federal and local rules, the Court will rely only on material statements of fact which are both admissible and supported by the record compiled at the summary judgment stage. See Fed. R. Civ. P. 56(e); L.R. 56.1; see also Davis v. Elec. Ins. Trs., 519 F. Supp. 2d 834, 836 (N.D. Ill. 2007); Lawrence v. Bd. of Election Com'rs of City of Chicago, 524 F. Supp. 2d 1011, 1014 (N.D. Ill. 2007). As far as the District's attacks on the credibility of the three affiants (Gronimo Hernandez, Joseph Hruska, and Dwaine Hicks), those matters would be for a jury, not the Court, to resolve. Defendant's three motions to strike are denied.

B. Facts

In September 2006, the District hired Gronimo Hernandez, who is Puerto Rican, as a maintenance mechanic. He was assigned to the Central Garage under the supervision of Thomas Thompson. As a maintenance mechanic, Hernandez's primary duty was to repair the District's trucks. As of September 1, 2006, the District had four maintenance mechanics: Hernandez, Dwaine Hicks (African American), David Benevidez (Hispanic American), and Ted Adams (African American). Hicks was hired on the same day as Hernandez, while Benevidez and Adams had been hired years before. With the exception of David Benevidez, who was assigned to repair police vehicles, all mechanics worked on all of the trucks without regard to the trucks' age. All of the jobs that Thompson assigned to Hernandez were jobs that were properly assigned to a mechanic and that fell within Hernandez's job description.

On February 1, 2007, Hernandez filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that the District discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964.*fn1 On October 7, 2008, after obtaining a Notice of Right to Sue from the EEOC, Hernandez filed this action. In his complaint, Hernandez claims that the District harassed him in the terms and conditions of his employment by refusing to allow him to leave work to go for medical treatment after he cut himself at work, orally reprimanding him for speaking Spanish during working hours, and calling him derogatory names.

During his deposition, Hernandez testified that Thompson told him and a Mexican-American co-worker to stop speaking in Spanish to each other on October 24, 2006. He also testified that, during one conversation in November 2006, Thompson called him names such as "pig pen," "dirty," "stupid," "a junkyard mechanic," and a "Pollack."*fn2 He also maintains that he was required to work primarily on older vehicles in poor condition and that sometime in 2008 his work area was moved to in front of the main office to prevent him from talking with co-worker Hicks and so that he could be observed by his supervisor. Hernandez claims that he had to request that parts be ordered, whereas other co-workers were not subject to the same restrictions.

He testified that he was not allowed to go into office to "sit around" like other employees; rather, he could only go into the office to get his work orders. Finally, he maintains that on October 17, 2006, a district employee (not Thompson) did not allow him to go to the hospital after he cut his leg while working. After work on October 17, Hernandez ...

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