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Rush v. MacArthur Foundation

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

May 6, 2014

RONNIE RUSH, Plaintiff,
v.
MacARTHUR FOUNDATION and HILL MECHANICAL OPERATIONS, Defendants.

MEMORANDUM OPINION AND ORDER

GARY FEINERMAN, District Judge.

Ronnie Rush alleges in this suit that MacArthur Foundation and Hill Mechanical Operations violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by subjecting him to a racially hostile work environment and by retaliating against him for filing a charge of discrimination with the EEOC. Doc. 25. Defendants answered, Docs. 30, 32, and the parties engaged in discovery, Docs. 37, 44, 62, 65, 70. Defendants have separately moved for summary judgment. Docs. 82, 86. The motions are granted.

Background

Consistent with the local rules, Defendants each filed a Local Rule 56.1(a)(3) statement of undisputed facts along with their summary judgment motions. Docs. 85, 88. Despite having been served by Defendants with Local Rule 56.2 Notices, which explain in detail the requirements of Local Rule 56.1, Docs. 83, 90, Rush did not file a Local Rule 56.1(b)(3)(B) response to Hill's Local Rule 56.1(a)(3) statement. Rush's status as a pro se litigant does not excuse him from complying with Local Rule 56.1. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel"); Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 F.App'x 642, 643 (7th Cir. 2011) ("Though courts are solicitous of pro se litigants, they may nonetheless require strict compliance with local rules."); Wilson v. Kautex, Inc., 371 F.App'x 663, 664 (7th Cir. 2010) ("strictly enforcing Local Rule 56.1 was well within the district court's discretion, even though Wilson is a pro se litigant") (citations omitted); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) ("even pro se litigants must follow rules of civil procedure"). Given Rush's failure to file a Local Rule 56.1(b)(3)(B) response to Hill's Local Rule 56.1(a)(3) statement, the facts set forth in Hill's statement are deemed admitted. See N.D.Ill. L.R. 56.1(b)(3)(C) ("All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party."); Keeton v. Morningstar, Inc., 667 F.3d 877, 880-81, 884 (7th Cir. 2012); Parra v. Neal, 614 F.3d 635, 636 (7th Cir. 2010); Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 393 (7th Cir. 2009); Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006); Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 943-44 (7th Cir. 2005); Smith v. Lamz, 321 F.3d 680, 682-83 (7th Cir. 2003).

Although Rush filed a Local Rule 56.1(b)(3)(B) response to MacArthur's Local Rule 56.1(a)(3) statement, Doc. 96, he asserts certain facts in his response brief, Doc. 98, that are not set forth in his Local Rule 56.1(b)(3)(B) response. Those facts are disregarded because facts may be considered on summary judgment only if they are presented in a compliant Local Rule 56.1 statement or response. See Midwest Imps., Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (holding that the predecessor to Local Rule 56.1(b)(3) "provides the only acceptable means of... presenting additional facts to the district court"); Bolden v. Barnes, 2013 WL 5737359, at *2 (N.D. Ill. Oct. 22, 2013) (disregarding facts in the plaintiff's response brief that were not properly set forth in a Local Rule 56.1 statement or response); Dunhill Asset Servs. III, LLC v. Tinberg, 2012 WL 3028334, at *3 (N.D. Ill. July 23, 2012) ("Under settled law, facts asserted in a brief but not presented in a Local Rule 56.1 statement are disregarded in resolving a summary judgment motion.") (internal quotation marks omitted); Garner v. Lakeside Cmty. Comm., 2011 WL 2415754, at *1 n.1 (N.D. Ill. June 13, 2011) ("the Court disregards any additional statements of fact contained in a party's response brief but not in its L.R. 56.1(b)(3)[C] statement of additional facts"); Curtis v. Wilks, 704 F.Supp.2d 771, 789 (N.D. Ill. 2010) ("Any facts plaintiffs assert in their response brief that were not included in their LR 56.1 submissions will not be considered."); Byrd-Tolson v. Supervalu, Inc., 500 F.Supp.2d 962, 966 (N.D. Ill. 2007) ("facts are properly presented through the framework of the Rule 56.1 statements, and not through citation in the briefs to raw record material").

Moreover, certain paragraphs of Rush's Local Rule 56.1(b)(3)(B) response assert facts that are not fairly responsive to the corresponding paragraphs of MacArthur's Local Rule 56.1(a)(3) statement. Doc. 96 at ¶¶ 11, 21, 25. Those facts will be disregarded because they are not set forth in a Local Rule 56.1(b)(3)(C) statement of additional facts; Rush did not file one. See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (holding that "Rule 56.1 envisions a separate statement of additional facts" and that non-responsive facts in a Local Rule 56.1(b)(3)(B) response "should have been included in a separate statement"); Bolden v. Dart, 2013 WL 3819638, at *2 (N.D. Ill. July 23, 2013) ("a non-movant seeking to assert facts that go beyond what is fairly responsive to the movant's factual assertions must do so not in his Local Rule 56.1(b)(3)(B) response, but in a Local Rule 56.1(b)(3)(C) statement of additional facts"); Johnson v. Cnty. of Cook, 2012 WL 2905485, at *12 (N.D. Ill. July 16, 2012) ("It is inappropriate for a non-movant to include additional facts, meaning facts extraneous to the substance of the paragraph to which the non-movant is responding, in a Local Rule 56.1(b)(3)(B) response. Rather, Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate statement under Local Rule 56.1(b)(3)(C) of any additional facts that require the denial of summary judgment.") (citations and internal quotation marks omitted). The court will also disregard those paragraphs of Rush's Local Rule 56.1(b)(3)(B) response that lack specific references to the record or that do not include a statement to the effect that Rush agrees with or denies MacArthur's assertions. Doc. 96 at ¶¶ 4, 6, 8, 10, 11, 23-24, 26, 28-29; see Ammons, 368 F.3d at 817-18 (holding that "where a non-moving party denies a factual allegation by the party moving for summary judgment, that denial must include a specific reference to the affidavit or other party of the record that supports such a denial, " noting that "[c]itations to an entire transcript of a deposition or to a lengthy exhibit are not specific and are, accordingly, inappropriate"); id. at 818 (affirming the district court's decision to strike responses that gave no "indicati[on] that [the non-moving party] agrees with or denies the allegation [in the moving party's Local Rule 56.1 statement]"); Erwin v. U.S. Dep't of State, 2013 WL 6452758, at *1 (N.D. Ill.Dec. 9, 2013) (disregarding assertions in the plaintiff's Local Rule 56.1(b)(3)(B) response that failed to cite specific record material). Finally, the court deems admitted certain facts in MacArthur's Local Rule 56.1(a)(3) statement to which Rush altogether failed to respond. Doc. 96 at ¶¶ 13, 17; see Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 937 (7th Cir. 2003) ("accepting as true the material facts submitted by Wal-Mart that Adams did not properly contest").

With all that said, the following facts are stated as favorably to Rush as the record and Local Rule 56.1 allow. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). Rush is an African-American man who was hired in 2001 as an operating engineer for the Marquette Building in Chicago, Illinois. Doc. 85 at ¶¶ 1, 16; Doc. 96 at ¶¶ 5, 7. MacArthur owns the Marquette Building and is headquartered there. Doc. 96 at ¶ 5. MacArthur is a not-for-profit charitable foundation that makes grants "in a variety of programs, including juvenile justice, community development, affordable housing, conservation, human rights and international justice, maternal mortality, higher education, migration and public media." Doc. 85 at ¶ 3; Doc. 96 at ¶ 4.

In 2003, MacArthur retained L.J. Sheridan & Company to manage the Marquette Building. Doc. 85 at ¶ 17; Doc. 96 at ¶ 8. L.J. Sheridan's duties involved managing the operating engineers, including Rush. Doc. 96 at ¶¶ 9-10. A few years later, ABM Industries took over management of the building. Doc. 85 at ¶ 18; Doc. 96 at ¶ 11. On January 1, 2010, Hill assumed ABM Industries' management role. Doc. 85 at ¶ 19; Doc. 96 at ¶ 13. Hill is "a building engineering and operations company that provides operating engineers to industrial, residential, and medical buildings in the Northern District of Illinois." Doc. 85 at ¶ 2. MacArthur's "Operating Engineers and Maintenance Personnel Contract" with Hill, dated October 1, 2009, provides that Hill is "the sole employer of all employees placed by it at [the Marquette Building], and the relationship between Hill and the Foundation is solely that of independent contractors." Doc. 96 at ¶ 17.

Through these changes in management, Rush continued working as an operating engineer, though he had to submit job applications to each successor management company- first to ABM Industries, and then to Hill. Id. at ¶¶ 12, 15. After assuming management of the Marquette Building in 2010, Hill issued Rush paychecks as well as a W-2 form, an employee handbook, and applicable rules and regulations. Doc. 85 at ¶ 20; Doc. 96 at ¶¶ 15-16, 18. Hill was responsible for issuing disciplinary write-ups and performance evaluations to Rush. Doc. 96 at ¶ 19. Rush reported to Scott Hultgren and Jerry Meehan, Hill's Chief Operating Engineer and Assistant Chief Operating Engineer, respectively. Doc. 85 at ¶¶ 8-9, 21.

MacArthur took no part in hiring Rush to work in the Marquette Building, and nor was MacArthur responsible for the supervision, direction, or control of Rush's work as an operating engineer. Doc. 96 at ¶¶ 25-27. MacArthur did not determine or issue Rush's salary, hours, or benefits. Id. at ¶¶ 28-30. At all relevant times, Michael Curtis worked as the building manager for the Marquette Building, and was not employed by Hill. Doc. 85 at ¶¶ 11, 38.

On March 26, 2010, Rush filed an EEOC discrimination charge against MacArthur. Id. at ¶ 22; Doc. 96 at ¶ 20. Some time later in 2010, Rush filed an EEOC discrimination charge against Hill. Doc. 85 at ¶ 23. Rush then voluntarily withdrew both discrimination charges. Id. at ¶¶ 24-25. After withdrawing the charges, Rush did not have contact with any Hill employees except for Meehan, Hultgren, Harold Hacker (the Vice President of Operations), and Nassar Dollah (the Operations Manager). Id. at ¶¶ 5-7, 26.

On November 8, 2012, Rush filed this suit. Doc. 1. On January 24, 2013, Rush filed an EEOC charge against Hill for race discrimination and retaliation. Doc. 85 at ¶ 14. Rush claimed that in October 2012, Curtis "mumbled nigger' at [Rush] under his breath." Doc. 96 at ¶ 22. On February 11, 2013, the EEOC issued Rush a right-to-sue letter. Doc. 85 at ¶ 15.

On October 3, 2013, Hacker informed MacArthur that "effective October 2, 2013[, ] Ron Rush is no longer employed with Hill Mechanical Operations" and that Hill was interviewing candidates to replace him. Doc. 96 at ¶ 23. MacArthur had no prior notice of Rush's termination and did not participate in the decision. Id. at ¶ 24. From 2010 to his termination, Rush did not experience any change in his job title or responsibilities, and ...


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