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Salwa Basta v. American Hotel Register ) Company ) An

January 11, 2012

SALWA BASTA, PLAINTIFF,
v.
AMERICAN HOTEL REGISTER ) COMPANY ) AN ILLINOIS CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Salwa Basta sued her former employer, American Hotel Register Company ("American Hotel"). Basta's suit arises out of an injury that she sustained while performing her job. In her Complaint, Basta alleges that the Defendant: (1) discriminated against her on the basis of her age in violation of the Age Discrimination in Employment Act ("the ADEA"); (2) failed to accommodate her disability in violation of the Americans With Disabilities Act ("the ADA"); (3) retaliated against her in violation of the ADA and Title VII of the Civil Rights Act of 1964; and (4) retaliated against her in violation of Illinois law. The Defendant now moves for summary judgment on all of her claims. For the reasons stated below, Defendant's Motion for Summary Judgment is granted.

I. Defendant's Motion to Strike

As an initial matter the Court must address the Defendant's Motion to Strike Basta's response to the Defendant's Local Rule 56.1(a) statement of facts and Basta's statement of additional facts filed pursuant to Local Rule 56.1(b)(3)(C). The Defendant moves to strike because the response was untimely and Plaintiff failed to seek leave to file the response late. The Court declines to strike Basta's 56.1(b)(3) response in its entirety for having been untimely filed. Although this Court has considerable discretion to mandate strict compliance with Rule 56.1, including to mandate that filings pursuant to the Rule be done in compliance with the Court's own orders and deadlines, such a harsh remedy is not warranted in this case. See, e.g., Ammons v. Armark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) ("We have also repeatedly held that a district court is entitled to expect strict compliance with Rule 56.1."). Basta's failure to timely file her response will nevertheless not go completely unexcused.

Some of Basta's responses to the Defendant's statement of material facts must be stricken on other grounds. In what appears to be an attempt to manufacture disputed issues of material facts, Basta filed an affidavit in which she contradicts much of her own prior sworn testimony. Such a ploy fails to create a material issue of disputed fact. See, e.g., Purrghoraishi v. Flying J. Inc., 449 F.3d 751, 759 (7th Cir. 2006) (Plaintiff cannot create an issue of material fact by submitting an affidavit that contradicts an earlier deposition);

Amadio v. Ford Motor Co., 238 F.3d 919,926 (7th Cir. 2001) ("[W]here a deposition and affidavit are in conflict, the affidavit is to be disregarded..."); Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) ("We have long followed the rule that parties cannot thwart the purposes of Rule 56 by creating 'sham' issues of fact with affidavits that contradict their prior depositions.").

Basta attempts to salvage her claims by creating disputes where none existed before. For example, in her response to paragraph 10 of the Defendant's statement of material facts, which states: "Each of the accounts payable representatives were assigned to perform this task and the workload was divided up amongst them." (Def. 56.1 Facts ¶ 10), Basta denies this claim, citing to paragraph 15 of her affidavit. Paragraph 15 of Basta's affidavit states, among other things, that she "was the only person who was sent into the storage room in search of files..." (Basta Aff., ¶ 15). This contradicts her prior deposition testimony when she testified that all of the members of the accounts payable department were tasked with pulling files from the storage room. (Basta Dep., pg. 17). Therefore, the Court strikes the following responses to Defendant's statement of material facts because they are contradicted by Basta's prior sworn testimony: paragraphs 10, 11, and 40.

In addition, a number of Basta's responses are not substantiated by the evidence she cites to support them. See Ammons, 368 F.3d at 817 ("[W]here a non-moving party denies a factual allegation...that denial must include a specific reference to...the record that supports such a denial.") (emphasis supplied); Bradley v. Work, 154 F.3d 704, 708 (7th Cir. 1998) ("Key to this system, which is typical of the local rules governing summary judgment in this circuit, is the act of specifically correlating evidence in the record to factual propositions."). Therefore, the Court strikes paragraphs 19, 20, 23, 24, and 25 of Basta's response to the Defendant's statement of material facts because the evidence cited to support them fails to do so. As an example, Defendant's paragraph 20 states: "Plaintiff's manager did not believe that Plaintiff could perform all of her prior representative functions on a limited four hour basis because Plaintiff would not be available to respond to vendor/customer inquires in a proper fashion due to the hours that Plaintiff would now be working on her limited schedule." (Def. 56.1 Facts ¶ 20). Basta denies this claim, citing to paragraphs 7 and 21 of her affidavit and to pages 70-73 of her deposition. The portions of her affidavit to which she cites discuss Basta's feeling that she was "at odds" with Mary Wallace, whom she claims began scrutinizing her more. This fails to contradict anything in paragraph 20 and her deposition testimony concerns testimony about her duties as an accounts payable representative after she returned to work. Nothing in the cited portion of the transcript refers to, let alone rebuts, the issue that is the subject matter of paragraph

20. As a result, the Defendant's statement of facts on each of these paragraphs is deemed admitted and uncontroverted. See Smith v. Lamz, 321 F.3d 680 (7th Cir. 2003) ("[W]hen a responding party's statement fails to controvert the facts as set forth in the moving party's statement in the manner dictated by the rule, those facts shall be deemed admitted for the purposes of the motion.").

The Court further strikes Basta's statement of additional facts in its entirety . Rule 56.1(b)(3)(c) gives the non-moving party the option of providing the Court with "a concise response to the movant's statement that shall contain...short numbered paragraphs[] of any additional facts that require the denial of summary judgment..." See L.R. 56.1(b)(3)(C) (emphasis supplied). The Rule creates an opportunity for the non-moving party to make factual assertions, supported by evidence, in an orderly fashion. The non-moving party's statement of additional facts is not a vehicle for factual or legal arguments. See Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 359 (7th Cir. 2009) (holding that where "much of [the party's] factual submission was argumentative" it was appropriate to strike it); Judson Atkinson Candies v. Latini-Hohberger Dhimantec, 529 F.3d 371, 381 n. 2 (7th Cir. 2008) ("It is inappropriate to make legal arguments in a Rule 56.1 statement of facts."). Legal arguments are the province of the supporting memorandum of law provided for by Rule 56.1(b)(2). Furthermore, the additional statement of facts must be concise, containing only one or two factual propositions per paragraph. See Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) ("The numbered paragraphs should be short; they should contain only one or two individual allegations, thereby allowing easy response.") (quoting Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000)). And again, the non-moving party cannot advance facts in its additional statement that are contradicted by its own prior sworn testimony or that are unsubstantiated by the record evidence. See Purrghoraishi, 449 F.3d at 759; Amadio, 238 F.3d at 926; Ammons, 368 F.3d at 817; Bank of Illinois, 75 F.3d at 1168. The Court has the discretion to strike in its entirety a party's statement of facts when the party fails to comply with the Local Rules governing summary judgment. See generally, Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000) (upholding district court's decision to entirely strike the non-moving party's statement where it "contained evasive and contradictory answers and legal arguments.").

Basta's statement of additional facts is replete with factual and legal arguments. (See, e.g., Pl. 56.1 Add'l Facts ¶¶ 2; 3; 5; 6; 7; 9; 11). For example, in paragraph 2 of her statement of additional facts Basta states: "Defendant's representatives were grossly negligent, past the threshold of criminal recklessness." (Pl. 56.1 Add'l Facts ¶ 2) (emphasis in original). This is the type of legal argument that Rule 56.1(b)(3)(C) proscribes. Likewise, several of her factual statements are contradicted by the evidence she cites to support them. (Compare Pl. 56.1 Add'l Facts ¶ 9 with Pl. Ex. 4). For example, paragraph 9 of Basta's statement of additional facts states: "Plaintiff's workers compensation attorney asked American Hotel Register to provide part-time employment for his client." (Pl. 56.1 Add'l Facts ¶ 9). By contrast, the letter that Basta refers to in paragraph 9 contains no request to provide Basta with part-time employment. Instead, the letter says that Basta can work "light duty." (See Pl. Ex. 4). Basta also attempts to offer facts that contradict her prior sworn testimony. (Compare Pl. Add'l Facts ¶ 12 with Basta Aff., ¶ 29 with Basta Dep., pg. 93). In paragraph 12 of her statement of additional facts, for example, Basta claims that she "would have refused a modified schedule when she returned to work on February 16, 2009, if [she] had known that her 'unworked' hours would be counted against her FMLA leave." (Pl. 56.1 Facts ¶ 12). For this proposition she cites to paragraph 29 of her affidavit, which directly contradicts the matter asserted in paragraph 9 of her statement of additional facts. In paragraph 29 of Basta's affidavit she claims that she protested the four hours of time that would be counted as leave under the Family Medical Leave Act. (Basta Aff., ¶ 29). This assertion, in turn, contradicts Basta's prior sworn deposition testimony that she never discussed Family Medical Leave Act leave with the Defendant. (Basta Dep., pg. 93). Finally, many of Basta's statements run afoul of the concision required by Local Rule 56.1. (See, e.g., Pl. 56.1 Add'l Facts ¶¶ 2; 3; 7). For example, paragraph 7 alone advances eight individual matters of fact. (Pl. 56.1 Add'l Facts ¶ 7). In short, Basta's statement of additional facts is improper in both its form and content and is therefore stricken.

This Court requires strict compliance with the Local Rules, and failure to comply with them may properly result in the Court disregarding the additional facts that a party has supplied. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-810 (7th Cir. 2005) ("A district court does not abuse its discretion when, in imposing a penalty for a litigant's non-compliance with Local Rule 56.1, the court chooses to ignore and not consider the additional facts that a litigant has proposed."). Because Basta was untimely in filing her response, she relies on an affidavit that is contradicted by her prior sworn testimony to support her response, she makes denials with citations to the record that do not support her position, and her statement of additional facts is improper for the reasons just set forth, the Court strikes Basta's statement of additional facts for her failure to comply with Local Rule 56.1. See Bordelon, 233 F.3d at 527 (upholding the district court's decision to strike the statement of material facts in its entirety, instead of selectively, for failure to comply with the rules).

II. The Facts

American Hotel is an Illinois corporation located in Vernon Hills, Illinois. (Pl. 56.1 Resp. ¶ 1). Basta worked for American Hotel for approximately thirteen years until she was terminated on February 22, 2010. (Id. ¶ 2). Basta began her employment with American Hotel on February 3, 1997, as a customer service representative. (Id. ¶ 7). Eventually, Basta transferred into the accounts payable department, where she held the position of accounts payable representative. (Id. ¶ 8). Basta worked in the accounts payable department until she was terminated in 2010. (Id.).

In early December of 2008, Basta's manager, Mary Wallace, assigned all of the accounts payable representatives to review vendor invoices. (Id. ¶ 9). She directed the representatives to determine whether American Hotel was due a credit from any of its vendors. (Id.). She directed each of the accounts payable representatives to perform this task, which was divided up amongst the representatives. (Id. ¶ 10). The task required each representatives to pull old invoices that were stored in two separate storage rooms. (Id. ¶ 11). One of the ...


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