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Howard v. Inland SBA Management Corp.

United States District Court, N.D. Illinois, Eastern Division

March 26, 2014

INLAND SBA MANAGEMENT CORPORATION, an Illinois corporation, and SOMERCOR 504, INC., an Illinois corporation, Defendants

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For Crystal G. Howard, Plaintiff: Waite P. Stuhl, PRO HAC VICE, Law Office of Waite P. Stuhl, St. Louis , MO.

For Inland Sba Management Corp., Defendant: Catherine Marie Chapman, LEAD ATTORNEY, Jennifer L. Dunitz-Geiringer, Baum, Sigman, Auerbach, & Neuman Ltd., Chicago , IL.

For Somercor 504, Inc., Defendant: Elliot S. Richardson, LEAD ATTORNEY, Carter A. Korey, Navdeep Kaur Gill, Ryan D Gibson, Korey Cotter Heather & Richardson, LLC, Chicago , IL; Jennifer L. Dunitz-Geiringer, Baum, Sigman, Auerbach, & Neuman Ltd., Chicago , IL.

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Robert M. Dow, Jr., United States District Judge.

Plaintiff Crystal Howard worked at SomerCor 504, Inc. (" SomerCor" ) from March 2004 until September 2009. Plaintiff alleges that the company passed her over for a promotion because of her race and gender and that her boss sexually harassed her for more than two years. She further alleges that in retaliation for her complaints about the discrimination and harassment, the company demoted her, created a hostile work environment, and ultimately terminated her employment. Because Plaintiff technically was employed by Inland SBA Management Corporation (" Inland" ), which provided SomerCor with its employees, Plaintiff has sued both companies for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Before the Court are motions for summary judgment [62, 73], filed by Defendants SomerCor and Inland, respectively, which argue that Plaintiff has presented no genuine issue of material fact as to any Count and that Defendants are entitled to judgment as a matter of law. For the reasons stated below, the Court grants in part and denies in part Defendants' motions for summary judgment [62, 73].

I. Background

A. Statement of Facts

The Court has taken the relevant facts from the parties' Local Rule (" L.R." ) 56.1 statements. Local Rule 56.1 requires a party moving for summary judgment to submit a statement of material facts as to which the movant contends there is no genuine issue and entitles the movant to judgment as a matter of law. The rule permits a movant to file up to 80 separately-numbered statements of undisputed facts. L.R. 56.1(a)(3). Both SomerCor and Inland have complied with this requirement of the Rule. The Rule also requires the non-movant (here, Plaintiff) to file a concise response to a movant's statement of facts containing " any disagreement, specific references to the affidavits, parts of the record, and other supporting materials." L.R. 56.1(b)(3)(A). Plaintiff has done that.

Regrettably, however, Plaintiff has not fully complied with other aspects of Local Rule 56.1. To begin with, Plaintiff has not adhered to the Rule's directive that she submit her own statement of up to 40 additional facts if Plaintiff wishes the Court to consider facts in addition to those set forth in the movants' statements. L.R. 56.1(b)(3)(C). Instead, Plaintiff included an unnumbered, nearly 20-page " statement of facts" section in her opposition brief. The Rule is clear that this is an improper instrument and format by which to set out facts at summary judgment and is insufficient to put issues before the

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Court. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th Cir. 1995); Malec v. Sanford, 191 F.R.D. 581, 594 (N.D. Ill. 2000). In addition, Plaintiff's 20-page statement of facts far exceeds the " 40 separately-numbered statements of additional facts" that the Rule permits. See L.R. 56.1(b)(3)(C). Finally, many of Plaintiff's facts contain no citation to the underlying record, in violation of part (b)(3)(B) of the Rule.

As the Seventh Circuit has stressed, facts are to be set forth in Rule 56.1 statements, and it is not the role of the Court to parse the parties' exhibits to construct the facts. Judges are not " like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). " Nor are they archaeologists searching for treasure." Jeralds ex rel. Jeralds v. Astrue, 754 F.Supp.2d 984, 2010 WL 4942161, at *7 (N.D. Ill.Dec. 8, 2010) (citing DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999)). It simply is not the court's job to sift through the record to find evidence to support a party's claim. Davis v. Carter, 452 F.3d 686, 692 (7th Cir. 2006). Rather, it is " [a]n advocate's job . . . to make it easy for the court to rule in [her] client's favor . . . ." Dal Pozzo v. Basic Machinery Co., Inc., 463 F.3d 609, 613 (7th Cir. 2006). Because Plaintiff's submissions on summary judgment miss the mark set out in Local Rule 56.1(b)(3)(C) by a wide margin, the Court will disregard the statement of facts contained in Plaintiff's memorandum in opposition to the Defendants' motions for summary judgment [84].

Defendant SomerCor argues that many of Plaintiff's responses to SomerCor's L.R. 56.1 Statement should be stricken because they violate the Rule by including facts and information that exceed the scope of an appropriate response. See Prewitt v. U.S., 2012 WL 5381281, *1 (N.D. Ill. Oct. 31, 2012) (" District Courts are entitled to expect strict compliance with Local Rule 56.1" and " [w]hen a nonmovant fails to adhere to Local Rule 56.1(b), the Court may admit the movant's 56.1 Statement and disregard the nonmovant's submissions." ). For example, one of SomerCor's undisputed facts states that " Howard's performance evaluation dated July 1, 2006, contained a supervisor comment which 'stressed better portfolio management' by Howard and encouraged her to 'continue to upgrade day to day servicing actions.'" SomerCor L.R. 56.1 Stmt ¶ 10. Rather than admit or deny the fact, Plaintiff responded: " Admitted. However, the evaluation reveals . . ." and then added new facts in an effort to provide context and supplement the record.

The Court agrees with Defendant that some of Plaintiff's responses arguably go beyond what fairly can be considered responsive and would have been more appropriate to convey in Plaintiff's own L.R. 56.1 statement of up to 40 additional facts. But because Plaintiff achieved partial -- and perhaps even substantial -- compliance with this aspect of the Local Rule, the Court will exercise its discretion in the direction of leniency. Rather than analyzing each of the 39 responses with which Defendants take issue to determine which (and to what extent) the responses exceed the bounds of " responsiveness," the Court instead will consider the 39 replies to Plaintiff's responses that Defendant SomerCor has submitted to the Court in the event that Plaintiff's responses are not stricken. Although L.R. 56.1 does not permit replies, the Court is given wide latitude in interpreting and enforcing its local rules. See Cichon v. Exelon Generation Co., LLC, 401 F.3d 803, 809 (7th Cir. 2005) (" We review a district court's decision concerning whether a litigant complied with a local rule, such as Local Rule 56.1, for an abuse of discretion." ).

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The Seventh Circuit has been clear that, although district courts have discretion to require strict compliance with Rule 56.1, " [i]t does not follow . . . that district courts cannot exercise their discretion in a more lenient direction: litigants have no right to demand strict enforcement of local rules by district judges." Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013). " To the contrary, unless the district court 'enforces (or relax[es]) the rules unequally as between the parties,' the decision 'to overlook any transgression [of the local rules] is left to the district court's discretion." Id. (quoting Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011)). The Court concludes that admitting Defendant's replies [98] is the equitable result here, particularly because SomerCor has only replied to 39 of Plaintiff's responses, which is fewer than the number of responses to which SomerCor would have been entitled if Plaintiff had complied strictly with L.R. 56.1 and appropriately submitted these 39 (arguably) additional facts in a separate document. Accordingly, the Court only has taken facts from SomerCor's Statement of Facts (" SomerCor SOF" ) [63], Inland's Statement of Facts (" Inland SOF" ) [75], Plaintiff's Response to Inland's Statement of Facts (" Pl. Response to Inland" ) [85], Plaintiff's Response to SomerCor's Statement of Facts (" Pl. Response to Inland" ) [86], and SomerCor's Reply to Plaintiff's Response to SomerCor's Statement of Facts [98].

With that said, it is still within the district court's discretion to strictly enforce compliance with Rule 56.1 within the universe of facts that the Court will consider here. See Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 359 (7th Cir. 2009); Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000). It is the function of the Court, with or without a motion to strike, to review carefully statements of material facts and to eliminate from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement. See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004). As discussed above, merely including facts in a responsive memorandum is insufficient to put issues before the Court. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th Cir. 1995); Malec v. Sanford, 191 F.R.D. 581, 594 (N.D. Ill. 2000). The Court's scrutiny of material statements of facts applies equally to the party seeking summary judgment and the party opposing it.

In addition, Local Rule 56.1 requires that statements of facts contain allegations of material fact and that factual allegations be supported by admissible record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). Where a party improperly denies a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems that statement of fact to be admitted. Thus, any statements or responses that contain legal conclusions or argument, are evasive, contain hearsay or are not based on personal knowledge, are irrelevant, or are not supported by evidence in the record will not be considered by the Court in ruling on the summary judgment motions. Any paragraph or fact that is not supported by record evidence will be disregarded.

B. Facts

Plaintiff Crystal Howard (" Howard" ) is an African-American female. From

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March 2004 until her termination on September 11, 2009, Howard worked at SomerCor. SomerCor is a nonprofit company that provides financing for small businesses. Although Howard was hired by (and worked at) SomerCor, she technically became an Inland employee in February 2005 when SomerCor and Inland entered into a contractual arrangement by which Inland provided all personnel and human resource services to SomerCor. Also in February 2005, Howard was promoted to director of portfolio management in SomerCor's loan servicing department, a role which included managing the department itself. Howard's supervisors were Mickey Maslic (" Maslic" ), President of Inland, and David Frank (" Frank" ), SomerCor's executive director.

In July 2006, Howard's performance evaluation " stressed better portfolio management," but noted that Frank, Howard's supervisor, was " very pleased with [Howard's] performance from the past year" and rated her " commendable." Howard received a pay increase at the time of the evaluation. Howard's evaluation the following year, conducted by Maslic in June 2007, noted that Howard should focus on " tak[ing] control of the department" and elevating the department's service to the highest level. Howard also received a pay increase with this evaluation. Howard's June 2008 performance evaluation included comments by Howard that reflected her desire for a promotion to assistant vice president or vice president, which she previously had discussed with Maslic and would require approval by SomerCor's Board of Directors. Howard's evaluation rated her " proficient," and she received another pay increase.

In June 2008, SomerCor engaged The Preston Group, Inc. to conduct an independent audit of SomerCor's operations to help SomerCor prepare for an upcoming audit by the Small Business Administration. The Preston Group prepared a report of their findings, which outlined twenty-four recommendations for the improvement of each of SomerCor's departments, six of which concerned Howard's servicing department. Lisa Preston, the Preston Group's President, authored the report. According to Frank and Maslic, the Preston Group's findings convinced them that the servicing department needed an overhaul and that Howard, while still an asset to SomerCor, was not the right leader for that department.

On July 25, 2008, SomerCor's Board of Directors met and discussed, among other things, the Preston Group's report and Howard's promotion request. During the meeting, Frank told the Board that Lisa Preston had suggested to him that Howard be replaced as head of the servicing department. Frank expressed his agreement with Preston's recommendation, as well as his view that the Board should ...

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