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Kirkland v. Kenny Construction

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

July 18, 2014

KENNY CONSTRUCTION, et al., Defendants.


AMY J. ST. EVE, District Judge.

On June 3, 2013, Plaintiff Dwight Kirkland ("Kirkland"), by counsel, filed the present Complaint alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981, against his former employer Kenny Construction ("Kenny Construction") and Kenny Construction's Deputy Program Manager for Cost and Budget, Michael McCarthy ("McCarthy"). Before the Court are Defendants' motions for summary judgment brought pursuant to Federal Rule of Civil Procedure 56(a). For the following reasons, the Court grants Defendants' motions for summary judgment and dismisses this lawsuit in its entirety. The Court denies Defendants' motion to strike Kirkland's Local Rule 56.1(b)(3)(B) Response and Appendix, for the reasons discussed below.


I. Northern District of Illinois Local Rule 56.1

Because Kirkland has been proceeding pro se since April 14, 2014, Defendants served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by Northern District of Illinois Local Rule 56.2. The notice explains the consequences of failing to properly respond to a motion for summary judgment and statement of material facts under Federal Rule of Civil Procedure 56 and Local Rule 56.1.

Local Rule 56.1 "is designed, in part, to aid the district court, which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information, ' in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue." Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). "The opposing party is required to file a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Id. (citing N.D.Ill. R. 56.1(b)(3)(B)). Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts that requires the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

In general, the purpose of Local Rule 56.1 statements and responses is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) ("statement of material facts did [] not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture"). "When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion." Cracco, 559 F.3d at 632; see also Frey Corp. v. City of Peoria, Ill., 735 F.3d 505, 513 (7th Cir. 2013).

Courts must construe pro se pleadings liberally, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014), but a plaintiff's pro se status does not absolve him from complying with the federal and local procedural rules. See Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008); Greer v. Board of Ed. of City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001). As the Supreme Court instructs, "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." McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).

Although Kirkland cites to evidence in the record concerning some of his responses in his Local Rule 56.1(b)(3)(B) Response, he fails to cite any evidence to refute other statements of fact. In other responses, he directs the Court's attention to his Appendix, which contains many documents that he did not produce during discovery and/or documents that lack an evidentiary foundation. It is well-established that the Court is not required to scour the record looking for factual disputes nor is the Court required to piece together Kirkland's factual and legal arguments for him. See Diadenko v. Folino, 741 F.3d 751, 757 (7th Cir. 2013). That being said, the Court will consider Defendants' individual challenges to the facts and evidence within the context of Northern District of Illinois Local Rule 56.1. The Court thus denies Defendants' motion to strike the entire Appendix and Kirkland's Local Rule 56.1(b)(3)(B) Response. Finally, the Court notes that Kirkland did not file a Local Rule 56.1(b)(3)(C) Statement of Additional Facts.

II. Relevant Facts

Kenny Construction is a wholly-owned subsidiary of the publicly-held corporation Granite Construction Inc. and maintains its corporate headquarters in Northbrook, Illinois. (R. 48, Defs.' Rule 56.1 Stmt. Facts ¶ 2.) Kenny's Construction Management Group represents owners undertaking large construction projects and one such project includes assisting in the management of the Chicago Transit Authority's ("CTA") capital program. ( Id. ¶ 11.) Chicago Transit Partners ("CTP") is a joint venture, which includes, but is not limited to Kenny Construction, which worked and continues to work on projects for the CTA, including the Dan Ryan Track Renewal Project. ( Id. ¶¶ 11, 65.)

The CTA mandated pay ranges for each job category and the CTA must approve the wages paid to employees working on its projects, including those employed by third party contractors such as Kenny Construction. ( Id. ¶ 12.) During the relevant time period, Kenny Construction's former Division Manager for the Construction Management Group, Joe Jaskulski, would recommend the employees' pay rates to the CTA in accordance with the CTA's wage ranges and subject to the CTA's approval. ( Id. ¶ 13.) In determining the pay rate for CTA projects, Jaskulski considers such factors as the individual's pay rate at his or her prior work, the individual's prior construction-related experience, the individual's construction-related education, including licenses and certificates, and the individual's seniority at Kenny Construction. ( Id. ¶ 14.)

Kirkland is an African-American male, who currently resides in Orlando, Florida. (Defs.' Stmt. Facts ¶ 1.) Kenny Construction hired Kirkland on March 3, 2008, for the position of Cost Estimator at a salary of $91, 200.00 per year or $43.85 per hour. ( Id. ¶ 25.) In 1988, Kirkland earned his undergraduate degree from Judson University in business administration, specializing in finance. ( Id. ¶ 26.) Prior to his employment with Kenny Construction, Kirkland worked for the Cook County Assessor's Office where he developed estimates of value for industrial, commercial, and residential property used for tax purposes. ( Id. ¶ 27.) During his employment with Kenny Construction, Kirkland worked on his Masters in Construction Engineering and Management earning a Masters Degree in May 2011. ( Id. ¶ 30.)

At the time Kenny Construction hired Kirkland in March 2008, he reported to Tom Szyska, who was a Senior Cost Estimator. ( Id. ¶ 33.) From April 2008 through May 2011, John Etten, the former Deputy Program Manager of Cost Control, supervised Kirkland. ( Id. ¶ 35.) In Kirkland's 2009 performance review, Kirkland's Division Manager noted that Kirkland failed to get a LEED certification, which was an optional certification. ( Id. ¶ 55.) While Etten was supervising Kirkland, Etten gave Kirkland a written warning on January 4, 2011, because Kirkland did not show up to work on December 31, 2010. ( Id. ¶ 56.) In June 2011, Defendant McCarthy took over the position of Deputy Program Manager of Cost Control and became Kirkland's direct supervisor. ( Id. ¶ 37.) In Kirkland's 2011 ...

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