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Lynda Halverson Selan v. Valley View Community Unit School District 365-U

January 11, 2013


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Lynda Halverson Selan ("Selan") has sued Valley View Community Unit School District 365-U ("District"), where Selan had worked as a teacher. Selan asserts four theories of recovery under the Americans with Disabilities Act ("ADA"): disparate treatment (Count I), hostile work environment (Count II), failure to accommodate (Count III) and retaliation (Count IV).

After the parties completed discovery District filed a motion for summary judgment on all four counts, and the litigants have briefed the issues fully. For the reasons stated below, District's motion is granted as to Counts I, II and IV and denied as to Count III.

Standard of Review

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986)). For that purpose courts consider the entire evidentiary record and must view all of the evidence, together with all reasonable inferences drawn from that evidence, in the light most favorable to nonmovants (Egan Marine Corp. v. Great Am. Ins. Co. of N.Y., 665 F.3d 800, 811 (7th Cir. 2011)). But a non-movant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists and "must come forward with specific facts demonstrating that there is a genuine issue for trial" (Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010), quoting Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). As Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003) has explained:

[T]he Federal Rules of Civil Procedure require the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."

Fed. R. Civ. P. 56(e). Conclusory allegations, unsupported by specific facts, will not suffice.

Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Compliance with LR 56.1*fn1

Before the facts of the case are addressed it is necessary to speak briefly about the litigation's recent history. All of the materials submitted by Selan's counsel in opposition to summary judgment reflect not only their complete noncompliance with LR 56.1 but also his misunderstanding of the summary judgment standard itself (see S. Mem. 3-4).

District submitted its motion for summary judgment on August 9, 2012. After this Court rejected Selan's belated attempt to file a Second Amended Complaint on August 27 and gave Selan's counsel extended time to respond to District's motion (extensions were granted until October 8--a full two months), October 10, 11, 12 and 17 saw the delivery of an untimely and jumbled compilation of documents in complete noncompliance with LR 56.1 (see Dkt. Nos. 5-91). District was given until November 16 to submit its reply.

On November 14 Selan's counsel--apparently realizing at least some of the flaws in his original submissions--submitted a baffling "Motion for Leave to Amend/Correct Response to Local Rule 56.1 Statement in Opposition to Defendant's Motion for Summary Judgment," accompanied by an entirely new set of disjointed documents and exhibits (see Dkt. Nos. 95-97). That troubling motion was denied orally on November 16, for (1) it would have caused substantial prejudice to District and (2) Selan's counsel had already had more than an adequate opportunity to make his submissions.

Thus Selan's original submissions in opposition to summary judgment (Dkt. Nos. 75-91) stand. Although this Court has done its best to penetrate the maze for interpretive and analytical purposes, many essential flaws remain. While it is unfortunate that those flawed submissions might possibly impact the substantive outcome adversely (though this Court does not believe that to have been the case), this Court is well within its discretion to penalize a party for noncompliance with the local rules ( see, e.g., Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005) and numerous cases cited there). Mere grammatical and typographical mistakes are certainly forgivable, but if a non-movant fails to point out any genuine issues of material fact it is not this Court's job to invent them or to sift through hundreds of pages of documents "like pigs hunting for truffles" (United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam)). Accordingly, when a response is completely noncompliant with LR 56.1 this Court is entitled to disregard that response or to consider a matter admitted (Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004)).*fn2

Thus responses in purported opposition to a movant's properly supported statements but providing absolutely no supporting citation (see, e.g., S. R. St. ¶24), or only an extremely vague or incomprehensible citation (see, e.g., id. ¶19 n. 2*fn3 ), call for the admission of the movant's statements. Additionally, statements that introduce new and unsupported facts that are purportedly in response to a statement dealing with an entirely different subject matter will be disregarded (see, e.g., id. ¶20). Although it is the client such as Selan who ultimately bears the consequences of such lawyer deficiencies, the Supreme Court spoke to that problem fully a half century ago in Link v. Wabash Railroad, 370 U.S. 626, 633-34 (1962) (internal quotation marks omitted):

Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent . . .

Statement of Facts

Beginning in 2006 (Compl. ¶4) Selan was employed as a special education teacher at Hubert H. Humphrey Middle School ("the School") (D. St. at 1). Throughout the course of her employment Selan suffered from several disabilities, including Bipolar Disorder, Attention Deficit Disorder ("ADD"), diabetes and Obsessive Compulsive Disorder (S. St. ¶7).

Selan's duties at the School involved teaching a special education class in a regular sized classroom, with one para-educator and one other teacher assigned to use the room during her planning period (id. ¶11). Selan claims that her duties were interrupted when at least two additional teachers used her classroom as a "personal office" at times when she was teaching (id.).*fn4 According to Selan the teachers would "eat their lunch during her lessons, talk on the phone and even directly interject themselves into the lesson" (id.).

Selan claims that those interruptions "greatly exacerbated Plaintiff's disabilities" and interfered with the performance of her duties (id.), and Kathy Ficorotta (a special education secretary) testified that she witnessed Selan have some kind of a breakdown in response to her teaching conditions (id. ¶22). After that "breakdown" Selan was approved for 12 weeks of Family and Medical Leave Act ("FMLA") leave beginning in January 2009*fn5 and ending on April 15 (D. St. ¶51). When Selan went on leave she was replaced by Carolyn Norton, a non-disabled substitute teacher (id. ¶19). Norton was assigned to the same room as Selan where the same three other teachers were also located (id. ¶¶19-20). Norton complained to the District about the three additional teachers, but they were not removed from the classroom (S. St. ¶¶32, 44; D. R. St. ¶¶32, 44).

On January 12 Selan had a telephone conversation with District's Assistant Superintendent for Human Resources Chris Israelson ("Israelson") about her inability to return to work under the then-current conditions (D. St. ¶¶10, 15).

Before then Selan had never specifically discussed her disabilities with anyone in District's administration (id. ¶14), although she claims that she had discussed her general work-related issues with members of the administration (S. R. St. ¶14). Next day Selan and her husband met with Israelson (D. St. ¶16), and Selan identified her disability as ADD and requested a transfer to another open teaching position (id. ¶¶16-17). District claims that from January through May "no open teaching position existed for which Selan was qualified and into which she could have transferred" (id. ¶18 and Ex. 6 ¶19), though Selan disputes that claim (S. R. St. ¶18).

On February 25 Selan--accompanied by her union representatives and her personal representative from the Illinois Department of Human Services--met with Israelson and District's Executive Director for Human Resources to discuss Selan's accommodation requests (D. St. ¶¶12, 21). District claims that it used the meeting to offer Selan "various options and alternative accommodations in lieu of a transfer" (id. ¶21). Both sides agree that at the ...

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