The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
This Court's December 5, 2011 memorandum opinion and order ("Opinion") denied the Fed. R. Civ. P. ("Rule") 56 summary judgment motion that had been filed by Waukegan Illinois Hospital Company, LLC ("Waukegan") in this action brought by its ex-employee Mary Lee ("Lee"). Now Lee has followed with a Rule 11(b) motion for sanctions, contending that what Waukegan's Rule 56 motion should never have called upon her to jump through the procedural hoops prescribed by that Rule and this District Court's LR 56.1's implementation of those requirements. With the motion having been briefed by the litigants, it is ripe for decision.
To that end, however, it is important to look at what preceded the motion. This Court's invariable procedure whenever a case on its calendar, after a series of progress reports made during periodic status hearings, reaches the point of setting a close-of-discovery date, is to schedule another status hearing on that date to discuss the next steps toward resolution of the case. And if defense counsel then announces an intention to file a motion for summary judgment (an announcement that too often resembles a Pavlovian response, as though there were a direct linear connection between the completion of discovery and a Rule 56 motion), this Court's further invariable practice is to turn to plaintiff's counsel to inquire about the existence of material factual differences that could potentially defeat summary judgment.
Typically that response leads to an inquiry of the prospective movant's counsel as to why one or more of the matters spoken of by opposing counsel will or will not stave off summary judgment. And the nature of that further inquiry requires counsel to adopt an essentially judicial-type objective approach in crediting the evidentiary version advanced on plaintiff's behalf.
This Court is of course well aware of the difficulty that defense counsel, whose accustomed role is that of an advocate, may have in taking a figurative step backward to evaluate the prospects of summary judgment objectively. In an effort to address that mindset, this Court frequently takes the occasion--whether during the earlier-mentioned status hearings, when the question is how best to implement Yogi Berra's advice ("When you come to a fork in the road, take it"), or in seminars or workshops dealing with the subject, or in its own speeches and writing in the area--to point out that from a legitimate cost-benefit perspective*fn1 a defendant is better served by directly following the path to trial rather than initiating a digression via an ill-considered Rule 56 motion.
Just a few points in such an analysis bear mention before this opinion
turns to its applicability in this case. It is hardly necessary to
remind counsel of the time and effort needed to comply with the
admittedly onerous demands imposed by LR
56.1--demands that cause the expenditure of considerable time and
effort that could instead have been devoted to readying the
evidentiary materials and witnesses needed for trial. Moreover, this
Court never requires trial briefs in conjunction with the joint final
pretrial order ("FPTO") that is the prelude to trial (after all, under
our assignment system we District Judges live with each case on our
calendars from the very beginning, so that the issues are well known
to us by the time the FPTO is submitted by the litigants).*fn2
And that contrasts dramatically with the need for counsel who
represent a Rule 56 movant to prepare and submit two often lengthy briefs--one in support of the motion
the other by way of reply.
In addition, because the laboring oar in initial preparation of a proposed FPTO must be wielded by plaintiff's counsel in the first instance, the work of defense counsel in that aspect of preparation for trial is correspondingly reduced. Finally and importantly, if it were in fact to turn out that plaintiff's claim could not succeed on the evidence presented at trial plus reasonable favorable inferences, defense counsel can move for judgment as a matter of law at the conclusion of plaintiff's case in chief (see Rule 50(a)), for which purpose the standard under that Rule is identical to the Rule 56 standard.
All of this has set out in macrocosmic terms why the regrettably Pavlovian approach of almost automatically linking the close of discovery to the filing of a summary judgment motion should instead be given a hard second look before counsel launch on that course of action. That said, it is time to examine the considerations discussed here in the microcosm of this case.
At the August 2, 2011 status hearing, with Waukegan's counsel having announced an intention to seek summary judgment, this Court posed to counsel on both sides its inquiry as to the existence or nonexistence of summary-judgment-blocking issues of material fact. Lee's counsel responded by orally identifying three evidentiary matters that the Opinion later found to mandate the rejection of Waukegan's Rule 56 motion. Waukegan's counsel replied orally with an effort to discount each of those matters--an effort that was later echoed in Waukegan's summary judgment briefs and has now been reiterated in Waukegan's current Response to Motion for Rule 11 Sanctions.
It is obvious from that last-mentioned filing that Waukegan's counsel still hasn't gotten it--that he continues to manifest the earlier-described inability to view Lee's evidentiary submissions as a reasonable jury might. One prong of that evidence, the asserted hostility of Lee's supervisor Gina Barrett ("Barrett"), reflected in her angry reaction to Lee's statement that she was going to request FMLA leave,*fn3 could reasonably lead a jury to infer that Barrett's scoring of Lee for purposes of making the termination decision in connection with Waukegan's planned RIF was materially affected (if not indeed fueled) by Barrett's anger. And it will be recalled that Lee was indeed terminated just four days after she had returned from the FMLA leave.
Another piece of evidence that links up with Barrett's asserted hostility and with the close temporal proximity between Lee's assertedly resented FMLA leave and her termination is the statement that Lee attributes to Waukegan's Vice President of Human Resources Scott Dimmick ("Dimmick") as having been made at the meeting during which he, Barrett and Barrett's superior Judy Sandler told Lee she had been fired. When Lee then told Dimmick that she found it ironic that she was being let go just four days after taking her FMLA leave, Dimmick assertedly responded "I will tell you that we need reliable and healthy employees."
That too was a piece of evidence that Lee's counsel identified in response to this Court's inquiry during the August 2 status hearing. Waukegan's counsel replied at that time, then contended later in briefing the summary judgment motion and now reasserts that the asserted statement (which is contested) came from a nondecisionmaker and was allegedly irrelevant because it was made after Lee's termination had been announced--but those arguments fail entirely to deal with the prospect that the jury might decide both that the statement was made (it would of course be admissible against Waukegan as non-hearsay under Fed. R. Evid. 801(d)(2)(D)) and that it too reflected a corporate anti-FMLA stance.
In sum it cannot be said that a reasonable jury would be unable to credit Lee's version and to find that Waukegan had violated Lee's FMLA-created rights--and that is the litmus test that Waukegan's counsel should have applied (but did not) before starting down the summary judgment road. There was really no justification for Waukegan's thus having sidetracked this action's orderly progress toward trial, with the consequent waste of resources identified earlier in this opinion.
This holding should not of course be misunderstood as any indication by this Court as to whether Lee should (or will in fact) prevail at trial. That will be for the jury to resolve, and its answer will not affect the ...