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Michael Noe v. R.R. Donnelley & Sons

October 25, 2011


The opinion of the court was delivered by: Judge Sharon Johnson Coleman

Memorandum Opinion and Order

This case comes before the Court on defendant R.R. Donnelley & Sons' ("Donnelley") Motion for Summary Judgment [38] and Motion to Strike plaintiff Michael Noe's Local Rule 56.1(b)(3) Statement [56]. On March 31, 2010, Noe filed a four count complaint alleging retaliation and interference in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. §2611 ("FMLA"), violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., and common law retaliation. The Court heard oral arguments on the summary judgment motion on October 17, 2011. For the reasons stated below, Donnelley's motion to strike is denied and summary judgment is granted in favor of Donnelley.

Motion to Strike Plaintiff's 56.1(b)(3) Statement

The Court will first address Donnelley's motion to strike because of the role Rule 56 statements of fact play in resolving motions for summary judgment. Donnelly moves to strike in its entirety Plaintiff's Response to Moving Party's Rule 56.1 Statement of Undisputed Material Facts, or alternatively, to strike certain enumerated portions of the Response that lack record citations, are based on inadmissible evidence, or are unsupported by the record. Specifically, Donnelley argues that Noe's Response to Donnelley's Rule 56 Statement of Facts should be stricken because: (1) Noe fails to provide specific references to affidavits, parts of the record or other supporting material, (2) Noe's own inconclusive testimony does not create a factual issue, (3) Noe's objections based on Donnelley's "interested party affidavits," hearsay, relevance, and legal conclusions should be rejected, and (4) Noe's other denials are unsupported by the record.

Local Rule 56.1(b)(3) explains the requirements for a response to the movant's statement of facts on summary judgment:

"(A) numbered paragraphs, each corresponding to and stating a concise summary of the paragraph to which it is directed, and

(B) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." N.D. Ill. Loc., R. 56.1.

The Court has discretion to strike any pleadings that do not conform to the local rules. Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir. 1990). With or without a motion to strike, the Court reviews statements of material fact and eliminates from consideration any arguments, conclusions, or assertions that are unsupported by the record that are offered in support of fact statements. See, e.g., Sherden v. Cellular Advantage, Inc., 2009 U.S. Dist. LEXIS 47991, *2-4 (N.D. Ill. June 9, 2009); Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 U.S. Dist. LEXIS 22455, *2 n.2 (N.D. Ill. Apr. 10, 2006). The Court is able to disregard improper interpretation, analysis, and unfounded assertions contained in a Rule 56 statement.

The rule itself requires that factual assertions and denials be supported by material in the record with specific citations. Fed.R.Civ.P. 56(c). Federal Rule of Civil Procedure 56(c)(4) mandates that supporting and opposing affidavits be made on personal knowledge. Fed.R.Civ.P. 56(c)(4). Personal knowledge may include reasonable inferences that are "grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience." Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (quoting Visser v. Packer Eng'g Assoc., 924 F.2d 655, 659 (7th Cir. 1991)(en banc)). Statements, which would otherwise be inadmissible hearsay, may be admissible on summary judgment if the statements are offered, not for the truth of the matter asserted, but for a non-hearsay reason to show intent or state of mind. See, e.g., Corral v. Chicago Faucet Co., 2000 U.S. Dist. LEXIS 5732, *15 n.4 (N.D. Ill. Mar. 9, 2000)(finding co-workers' statements to a supervisor about the plaintiff's conduct admissible to show the employer's state of mind and reason for terminating the plaintiff); Schmucker v. Data-Link Systems, Inc., 1997 U.S. Dist. LEXIS 8735, at *7 (N.D. Ind. June 5, 1997)(information reported by the plaintiff's co-workers during an investigation was admissible to show the company president's "state of mind and good faith belief that he terminated [the plaintiff] because of his inappropriate and intimidating behavior.").

Based on the foregoing discussion, the Court need not rule on the particulars of Donnelley's motion to strike Noe's L.R. 56.1 Response to Donnelley's Statement of Facts because any statements or responses that lack evidentiary support, contain legal conclusions or are otherwise noncompliant with Rule 56 will not be considered by the Court in ruling on Donnelley's motion for summary judgment. Donnelley's motion to strike is denied consistent with the discussion above.

Motion for Summary Judgment


Unless otherwise noted, the following facts are undisputed, admitted or deemed admitted under Local Rule 56.1. Donnelley is a printing company headquartered in Chicago, Illinois, with a printing plant in Dwight, Illinois, where Michael Noe was employed. Each printing press is staffed by a team consisting of a Press Operator, an Assistant Press Operator, a Rolltender, a Press Helper and a Material Handler, all of whom report to a shift supervisor and a department manager. Noe was hired in 1994 as a Material Handler. In May 1999, he was promoted to Press Helper. Noe continued as a Press Helper until his termination on April 21, 2008. From May 7, 2006, through April 2008, Noe worked on either the first shift (7:00 a.m. to 3:00 p.m.) or second shift (3:00 p.m. to 11:00 p.m.), reporting directly to Shift Supervisors Earl Alexander and Jeff Juergens, and indirectly to Pressroom Managers Dave Cornale and Michael Ryan.

Donnelley's attendance policy, effective May 1, 2004, provided that "An Occurrence is one or more consecutive workdays missed for the same cause. Non-consecutive days are considered separate and unrelated occurrences except when taken as part of a Family Medical Leave Act (FMLA) qualifying leave. A Tardy/Leave Early is defined as any absence less than two hours at the beginning or end of a shift. tardies/leave earlies will also count as .5 of an absence occurrence." The policy also provides that employees at the Informal Reminder/Record of Conversation level are not eligible for promotion. Positive counseling up to and including separation may be imposed for making false or misleading statements concerning absences. In January 2007, Donnelley revised the policy to add that personal absences and illnesses in the family will be counted as individual occurrences.

Donnelley's Family and Medical Leave Act policy was posted in the plant and on the company's intranet. The FMLA policy indicated that notice and application was necessary with 30 days notice when foreseeable and generally within one to two business days of learning of a non-foreseeable absence. The policy also provided for procedures for notifying the company and providing medical certification. Medical certification was required within 15 days. The policy warned that the failure to provide adequate medical certification in a timely manner may result in the denial of leave unless or until it is provided.

On September 26, 2006, Noe's wife was taken to the hospital and Noe took off work from that date through October 3, 2006, to care for her. On September 28, 2006, Noe contacted the company to request continuous FMLA leave for those dates. He submitted the completed documentation on November 8, 2006, and Donnelley approved the request. On November 15, 2006, Noe requested intermittent FMLA leave to care for his wife. He submitted the documentation on December 6, 2006. Noe missed work on several days in October and November 2006 without prior FMLA approval, though Noe states he requested FMLA leave for November 18-19 and November 30, 2006. On December 4, 2006, Noe was issued a "Final Warning" consisting of seven absence occurrences, including the disputed November dates. Noe contacted the company on December 5, 2006, to obtain intermittent FMLA authorization for all of his October and November absences. On December 6, 2006, he ...

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