United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
This matter is before the Court on Defendants' motion for summary judgment  and Plaintiff's motion to allow surreply instanter . For the reasons set forth below, the Court grants in part and denies in part Defendants' motion for summary judgment  and grants Plaintiff's motion to allow surreply instanter .
A. Procedural History
Plaintiff Robert Smith sued Defendants Rosebud Farmstand, Rocky Mendoza, and Carlos Casteneda for sexual and racial harassment (Counts I and II), retaliation (Count III), and constructive discharge (Count IV) pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), a violation of the Illinois Gender Violence Act (Count V), and for violating 42 U.S.C. § 1981 (Count VI). Defendants moved to dismiss all claims except Plaintiff's sexual harassment claim against Defendant Rosebud. In November 2012, the Court granted in part and denied in part Defendants' motion to dismiss, granting the motion with respect to Plaintiff's claims of racial harassment (Count II) and constructive discharge (Count IV) and denying the motion in all other respects. In dismissing Plaintiff's claim for racial harassment, the Court pointed out:
Nothing in [Plaintiff's EEOC Charge] suggests that Plaintiff was alleging that he was the victim of racial harassment (as opposed to racial discrimination, a claim clearly set forth in his EEOC charge but not included as a claim in his complaint). Plaintiff makes no mention of harassment on account of race in either his statement of the bases for his Charge or the body of the Charge. He does not mention any of the alleged comments (racial slurs, racial remarks, and racial epithets), conduct, or incidents that he now alleges in Count II of his complaint. Instead, Plaintiff specifically alleges that he was "sent home * * * due to his race" and that he had a "reduction in hours * * * due to his race." Being sent home from work and suffering a reduction in hours are classic examples of race discrimination, which is a different claim from being harassed with racial epithets, slurs, and comments. See Rush v. McDonald's Corp., 966 F.2d 1104, 1110-1111 (7th Cir. 1992) (concluding that racial harassment claim was beyond the scope of plaintiff's charge where plaintiff included a specific race discrimination claim in her charge, but failed to include any reference to racial harassment) * * * * The specificity in Plaintiff's Charge with respect to his claims for sexual harassment and race discrimination belie his argument that he did not understand how to plead a racial harassment claim. He set forth detailed facts to support both sexual harassment and race discrimination claims, yet failed to include any reference to conduct that would support a racial harassment claim. To allow him now to claim additional instances of racial harassment would not be consistent with Title VII's goal of providing notice to an employer of the nature of the claims.
See DE 30 at 6-7. Despite the Court's clear ruling that Plaintiff's racial harassment claim was beyond the scope of his EEOC charge, Plaintiff in a footnote in his response brief appears to reassert his racial harassment claim, contending that the Court "dismissed plaintiff's racial harassment claim under Title VII without prejudice" and "plaintiff's racial harassment claim was incorporated within his race discrimination charge." Plaintiff's untimely, informal attempt to reassert his racial harassment claim fails. Plaintiff never moved for leave to amend his complaint or sought reconsideration of the motion to dismiss. Nor would he have been successful: Plaintiff's EEOC Charge clearly failed to raise any, let alone the detailed, allegations he now makes about racial harassment. Attempting to reassert in a footnote of a response to Defendant's summary judgment motion a claim that was previously dismissed does not suffice. Plaintiff (i) no longer has a racial harassment claim and (ii) never asserted a claim for race discrimination in his complaint. Thus, the only claims remaining that are related to Plaintiff's race are his Title VII retaliation and § 1981 claims.
B. Statements of Fact
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). 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).
While Plaintiff has complied with the local rules in some respects, many of Plaintiff's "admitted but" or "otherwise admitted" responses to Defendants' fact statements contain argument and information not responsive to or extraneous to the paragraph to which Plaintiff is responding. See generally Pls.' Resp. to Defs. SOF at 5, 11, 12, 16, 17, 19, 20, 21, 23, 25, 26, 27, 38, 29, 32, 33, 34, 35, 36, 37, 38, 39, 40, 47, 49, 51, 53, 54, 57, 61, 65. To the extent that Plaintiff's responses are improper, Defendants' fact statements will be admitted. See, e.g., Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (citing Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003)); Nehan v. Tootsie Roll Industries, Inc., ___ F.Supp.2d ___, 2014 WL 3734232 at *1 (N.D. Ill. July 23, 2014) ("To the extent that [plaintiff] fails to effectively dispute facts properly set forth and supported by [defendant], those facts are deemed admitted for the purposes of this motion.").
Plaintiff has not fully complied with other aspects of Local Rule 56.1. 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, 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). A Rule 56.1(b)(3) response is not the place for a party to assert additional facts. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995)). Thus, such extraneous assertions in Plaintiff's response to Defendants' statement will be disregarded.
Another flaw is Plaintiff's repeated references either to his or former employees' post-deposition affidavits. See Pls.' Resp. to Defs. SOF at 18, 20, 28, 29, 33, 35, 36, 38, 39, 54, 57, 68. Affidavits "used to support or oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant * * * is competent to testify on the matters stated * * * speculation and conjecture contained in a declaration cannot create a material issue of fact." Hoosier v. Greenwood Hospitality Mgmt., LLC, 2014 WL 1245112 at *1 n.1 (N.D. Ill. 2014) (quotations and citations omitted). Courts here are highly critical of efforts to patch up a deponent's testimony with his or her subsequent affidavit without a credible explanation. Nehan, 2014 WL 3734232 at *2 (N.D. Ill. July 23, 2014) (citation omitted). Thus, to the extent that Plaintiff's post-deposition affidavits conflict with deposition testimony in the record, the assertions in the affidavits will be disregarded. See Janky v. Lake Cnty. Convention & Visitors Bureau, 576 F.3d 356, 362 (7th Cir. 2009) (quoting Lorillard Tobacco Co. v. A & E Oil, Inc., 503 F.3d 588, 592 (7th Cir. 2007) ("[L]itigants cannot create sham issues of fact with affidavits that contradict their prior depositions."); see also Basta v. American Hotel Register Co., 872 F.Supp.2d 694, 699 (N.D. Ill. 2012).
Because Plaintiff achieved partial compliance with the local rules governing summary judgment motions, the Court will exercise its discretion in the direction of leniency and consider those responses and additional fact statements that arguably meet the requirements of the local and federal rules. Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (making 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."). 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.
Defendant Rosebud Farm, Inc. is an Illinois corporation with its principal place of business located in Chicago, Illinois. Rosebud's business has two factions: one side is the wholesale distribution of meat to restaurants, and the other side is the operation of a retail grocery store called Rosebud Farmstand. Defendant Carlos Castaneda has been the general manager of Rosebud Farmstand and has done all of the hiring, firing, and scheduling of employees since the store opened in 1996. Defendant Roque Mendoza has been an assistant manager for the last six or seven years. Mendoza could not and did not hire employees, fire employees, or suspend employees. He also testified that he did not recommend that employees be suspended or fired.
Rosebud rehired Plaintiff Robert Smith on November 14, 2003, to work as a customer server in the meat department at Rosebud Farmstand. Plaintiff's duties as a customer server in the meat department included taking care of customers as quickly as possible, paying attention to customer's orders, being friendly, communicating, keeping the work area clean, and keeping the meat bins filled. When he worked, Plaintiff wore a long jacket and an apron, unless there were not enough aprons available, and wore clothes under his coat and apron. During his employment at Rosebud Farmstand, Plaintiff would tell Castaneda the dates and times that he was available to work. Plaintiff typically worked on Tuesdays, Thursdays, Saturdays, and Sundays.
All of the regular employees in the Rosebud Farmstand meat department were male. Castaneda testified that Rosebud had an "open door policy" and that he told employees that if problems arose in the store or with other employees, they should report it to him. However, Rosebud did not have training on or a formal policy for dealing with discrimination or harassment.
Plaintiff testified that his performance at work was always excellent, from the day he started in 2003 until the day he left, and that he never had a single performance problem. Plaintiff described himself as a sociable person at work who got along with people regardless of race. During his deposition, Plaintiff testified that between the time he filed a charge of discrimination in January 2008 and the day he quit, he was never written up, disciplined, or ...