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Daniel H. Hoskins v. Premier Security Corp

September 5, 2012


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


Daniel H. Hoskins brings this pro se suit against his former employer, Premier Security Corporation, alleging race discrimination, retaliation, and harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 (Count I), breach of contract for unlawful termination (Count II), breach of contract for the underpayment of wages (Count III), and breach of contract for failure to make reinstatement payments pursuant to a 2008 settlement agreement (Count IV). On July 21, 2011, this Court dismissed Count III of Hoskins's Amended Complaint alleging breach of contract for the underpayment of wages for the reasons set forth in the Court's Order. See Hoskins v. Premier Security, No. 10 C 3018, 2011 WL 2940989 (N.D. Ill. July 21, 2011). Of the remaining claims, Premier argues that Hoskins's discrimination claims contained in Count I fail as a matter of law because he cannot carry his burden of establishing a case of discrimination, retaliation or harassment in violation of Title VII or 42 U.S.C. § 1981 using either the direct method of proof or the indirect burden-shifting method of proof used to establish such claims. Premier further argues that Hoskins's breach of contract claim in Count II for unlawful termination fails as a matter of law because the Employee Handbook and Discipline Policy in the Human Resources Manual upon which Hoskins relies do not create a binding and enforceable contract. Finally, Premier argues that Hoskins's breach of contract claim for failure to make reinstatement payments contained in Count IV fails as a matter of law because there is no evidence in the record to support his claim that repayment of back wages was ever a term of the 2008 settlement agreement. Both parties moved for summary judgment, each arguing that it is entitled to judgment as a matter of law. For the reasons set forth herein, Daniel H. Hoskins's Motion for Summary Judgment is denied. Hoskins cannot establish his discrimination claims under either the direct method of proof or the indirect burden-shifting method of proof, and because his breach of contract claims fail as a matter of law, Premier Security Corporation in entitled to judgment as a matter of law in its favor and thus its Motion for Summary Judgment is granted.

I. The Undisputed Material Facts

As an initial matter, Hoskins has not offered any admissible evidence to support his Motion for Summary Judgment. The factual allegations offered by a party in support of a motion for summary judgment must be supported by admissible evidence or at least "represent admissible evidence." See Fed. R. Civ. P. 56(c)(2); Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) ("The evidence supporting a factual assertion must represent admissible evidence."); Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir. 2003) (evidence relied on by a party on a motion for summary judgment must be evidence of a type admissible at trial).

The Northern District of Illinois' Local Rule 56.1 prescribes the manner in which a party moving for summary judgment submits a statement of material undisputed facts in support of its motion pursuant to Federal Rule of Civil Procedure 56, as well as the manner for the nonmoving party to respond to those facts and offer its own statement of additional facts that requires the denial of summary judgment. See L.R. 56.1(a)(3), (b)(3), (b)(3)(C). For a case that comes before the Court on cross-motions for summary judgment each party submits a statement of undisputed material facts that it contends requires the Court grant summary judgment in its favor, the opportunity to respond to the statement of undisputed material facts of the opposing party, as well as the opportunity to offer additional facts that require the denial of summary judgment. In this case, neither party submitted a statement of additional facts that requires the denial of summary judgment pursuant to Local Rule 56.1(b)(3)(C).

District courts have broad discretion to enforce strict compliance with Local Rule 56.1-indeed they are encouraged to do so. See Judson Atkinson Candies, Inc., 529 F.3d at 382 n.2; F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005) (collecting cases); Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v. Kwon, 153 F.3d 481, 486 (7th Cir. 1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (collecting cases)). Even though Hoskins is pro se and his filings are subject to more liberal review and interpretation by the Court, he still must comply with the governing local rules of procedure. See Dale v. Poston 548 F.3d 563, 568 (7th Cir. 2008) ("Even in pro se pleadings, "procedural rules cannot be ignored.") (internal citations omitted); Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001) (a pro se plaintiff's failure to comply with Local Rule 56.1 is not excused by the rule that courts should construe the pleadings of pro se plaintiffs liberally). This Court appointed counsel to assist Mr. Hopkins in February 2011, but he moved in November 2011 to have the appointment withdrawn and requested he be permitted to continue pro se.Following termination of Hoskins' appointed counsel, the Court informed him about the pro se help desk and his obligation to comply with the Court's rules, including Rule 56.

Local Rule 56.1 imposes an "exacting obligation. . . on a party contesting summary judgment." Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-922 (7th Cir. 1994). When a party offers a legal conclusion or a statement of fact without offering proper evidentiary support, the Court is not to consider the matter asserted. See Id. at 923 (the purpose of Rule 56.1 is "to alert the court to precisely what factual questions are in dispute and point the court to the specific evidence in the record that supports a party's position on each of these questions"); see, e.g., Alvarado v. Corporate Cleaning Service, Inc., 719 F. Supp. 2d 935, 937 n.1 (N.D. Ill. 2010) (the court is not to consider a statement of fact when the party offering the statement has not provided proper evidentiary support for it); Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (same).

Rule 901(a) of the Federal Rules of Evidence states: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." F.R.E. 901(a). Evidence offered by a party that has not been properly authenticated or identified is not to be admitted into evidence. See Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006) (quoting Scott v. Edinburg, 346 F.3d 752, 760 n.7 (7th Cir. 2003) ("To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence."); Smith v. City of Chicago, 242 F.3d 737, 741 (in deciding a motion for summary judgment, the supporting documents or exhibits offered by a party in support of its motion must be properly authenticated and admissible).

Here, Hoskins has not included any affidavits or deposition transcripts-including his own-with his Local Rule 56.1 Statement of Undisputed Material Facts. Instead, he simply attached a series of documents to his Statement of Undisputed Material Facts without establishing any of the necessary evidentiary foundation for their admissibility.*fn1 Without the necessary evidentiary support, the documents are inadmissible hearsay. See Bodor v. Town of Lowell, 248 Fed.Appx 752, 753 (7th Cir. 2007) (citing Fed. R. Evid. 901) (blank administrative inspection warrant that is not accompanied by a supporting affidavit to verify its authenticity is therefore inadmissible on a motion for summary judgment); Scott, 346 F.3d at 759 (expert report introduced into the record without any supporting affidavit verifying its authenticity renders the report inadmissible hearsay and precluded from consideration by the court on summary judgment); Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985) (correspondence filed with the district court was not supported by affidavit or otherwise authenticated, and thus in the form it was presented it constituted impermissible hearsay). "And hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial, except that affidavits and depositions, which (especially affidavits) are not generally admissible at trial, are admissible in summary judgment proceedings to establish the truth of what is attested or deposed." Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) (internal citations omitted).

Hoskins has not demonstrated that any of the documents attached as exhibits to his Motion for Summary Judgment are what he claims they are. It is also unlikely that Hoskins will ever be able to meet this evidentiary threshold for the majority of the exhibits that he offered in support of his Motion because he testified at his deposition that he does not recall anything that occurred during his employment with Premier or the subsequent termination of his employment. As a result, all of Hoskin's Statement of Undisputed Material Facts must be disregarded by the Court because they are founded in inadmissible evidence in violation of Federal Rule of Civil Procedure 56 and Local Rule 56.1. See Scott, 349 F.3d at 759; Haywood, 323 F.3d at 533. They are therefore stricken. See Bordelon v. Chicago Sch. Reform Bd. of Tr., 233 F.3d 524, 529 (7th Cir. 2000) (district court is entitled to enforce strict compliance with Rule 56.1, and may strike a party's entire statement of facts as a penalty for failing to comply with the Rule).

Hoskins's response to Premier's Statement of Undisputed Material Facts is equally problematic. In responding to the moving party's statement of fact, the nonmoving party must point to "specific references to the affidavits, parts of the record, and other supporting material." See L.R. 56.1(b)(3)(B). An adequate denial of a statement of fact must specifically admit or deny the relevant fact, cite to facts in support of the denial, and cite to specific references in an affidavit or other parts of the record that supports such a denial. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817 (7th Cir. 2004). The Local Rules make special provision for notice to pro se litigants opposing summary judgment by requiring the moving party to issue a letter with their motion describing the proper manner for responding in opposition to the motion. See L.R. 56.2. Premier sent a Rule 56.2 letter to Hoskins with its Motion. When a pro se litigant is provided with a Rule 56.2 letter, then he is presumed to be on notice of his obligations under Rule 56.1, and failure to comply with that Rule results in the admission of the moving party's facts. See Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002).

Premier Security Corporation is an Illinois corporation that provides customized security services to commercial, residential and retail properties in and around downtown Chicago. (Pl. 56.1 Resp. ¶ 1).*fn2 Daniel H. Hoskins is a former security officer of Premier. (Id. ¶ 2). Premier's security officer employees such as Hoskins are union members and their employment is governed by a collective bargaining agreement which calls for termination for just cause in conjunction with Premier's progressive discipline policy. (Id. ¶ 5). The relevant sections of Premier's Human Resources Manual, as referred to in the Employee Handbook, expressly states that Premier reserves the right to change its policies and that the "progressive Discipline and Discharge Policy is not a contract for employment or a guarantee of employment for any specific duration." (Id.). At all times relevant to this suit Premier had in place a comprehensive discipline policy for its employees that called for progressive discipline over four steps starting with a verbal reprimand; followed by a written warning; followed by a final written warning; and eventually discharge from employment. (Id. ¶ 6). The progressive discipline policy also included the possibility of suspension so that Premier could conduct an investigation that might lead to dismissal from employment. (Id.). Premier expressly reserved the right to accelerate the progressive discipline policy as conditions merit. (Id.).

Hoskins was hired by Premier as a security guard on December 1, 2007. (Id. ¶ 7). He was posted as a guard at a building at 515 N. State Street. (Id.). Hoskins's supervisor at 515 N. State Street was John Schmid, who in turn reported to Timothy Madigan. (Id. ¶ 8). Hoskins does not recall experiencing any acts of racism while being posted at 515 N. State Street as an employee of Premier. (Id. ¶ 9).*fn3 After learning that Hoskins hugged a tenant or visitor of 515 N. State Street Schmid issued discipline to Hoskins on March 10, 2008. (Id. ¶ 10).*fn4 Hoskins was verbally counseled and disciplined by Schmid and told that "he needs to limit the time he interacts with tenants and the public and that any physical contact with tenants/visitors, with the exception of a handshake, will not be tolerated." (Id. ¶ 11).*fn5 Schmid prepared a Disciplinary Action form dated March 10, 2008, which characterized the disciplinary action as a "counseling session/discussion record" pursuant to Premier's progressive discipline policy. (Id. ¶ 12). Hoskins does not recall an incident on March 10, 2008, involving him hugging a tenant or visitor to 515 N. State Street or receiving disciplinary action related to that incident. (Id. ¶ 13).

On August 4, 2008, Schmid became aware of an incident between Hoskins and a film crew that was working in the lobby of 515 N. State Street. (Id. ¶ 14). When the film crew began to work Hoskins informed the crew that it could not film until he confirmed that they had permission to do so. (Id. ¶ 16). Hoskins admitted that he attempted to stop the film crew from filming by placing his hand over the camera lens and telling the film crew, "you guys think you're so slick." (Id.). On the same day Schmid received a memorandum from Hoskins setting forth his interactions with the film crew, which had been hired by a tenant of 515 N. State Street, the American Medical Association, to shoot video in the lobby of the building. (Id. ¶ 15). On August 5, 2008, Schmid prepared a second Disciplinary Action Form-Hoskins first written warning under Premier's progressive discipline policy-based on Hoskins's conduct with respect to how he interacted with the film crew. (Id. ¶ 17). Hoskins does not recall an incident with a film crew on August 4, 2009, or receiving the Disciplinary Action Form dated August 5, 2008, relating to the camera crew event. (Id. ¶ 18). Hoskins does not recall writing or signing the August 4, 2008 memorandum setting forth his interactions with the film crew despite admitting that it is his signature that appears at the bottom of the memorandum. (Id. ¶ 19).

On August 26, 2008, Hoskins was disciplined for a third time-his final warning under Premier's progressive discipline policy-when he allowed contractors to enter the building with their equipment through the lobby rather than through the loading dock as required. (Id. ¶ 20). Schmid drafted a Disciplinary Action Form regarding the incident on August 26, 2008, and provided it to Hoskins on the same day. (Id. ¶ 21). Hoskins does not recall ever receiving the August 26, 2008 Disciplinary Action Form or the incident involving allowing contractors into the building, which was recorded in the Disciplinary Action Form. (Id. ¶ 22).*fn6 On September 30, 2008, Schmid received an email correspondence from the building manager of 515 N. State Street, Omar Meyers, enclosing the complaint of a tenant regarding the actions of Hoskins, including complaints of Hoskins talking to employees of a tenant, the Hair Growth Institute, for up to thirty minutes, asking the employees for food and money, and asking the employees out on dates. (Id. ΒΆ 23). ...

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