United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION and ORDER
YOUNG B. KIM, Magistrate Judge.
In 2010 Aurora East School District 131 (the "School District") fired Plaintiff Robert Green from his teaching position. Green sought help from his union, Defendant American Federation of Teachers/Illinois Federation of Teachers Local 604 (the "Union"), to file a grievance against the School District on his behalf. The Union refused. Green filed this action against the Union under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq. The district judge assigned to this case entered summary judgment in favor of the Union on July 24, 2013. (R. 26.) On January 23, 2014, the Seventh Circuit reversed and vacated the summary judgment on appeal. (R. 38.) On October 23, 2014, the Union again moved for summary judgment. (R. 46.) After the parties fully briefed the motion, they jointly consented to the jurisdiction of this court on January 28, 2015. (R. 66); see 28 U.S.C. § 636(c). For the following reasons, the Union's motion for summary judgment is denied:
As an initial matter, the court notes that there are instances in the parties' Local Rule ("L.R.") 56.1 statements and responses thereto in which the parties failed to cite to supporting materials. When moving for summary judgment, L.R. 56.1(a) requires movants to provide a statement containing:
short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial of the motion.
L.R. 56.1(b) places a similar duty on the party opposing summary judgment. Failure to comply with L.R. 56.1 is sufficient ground for courts to strike or disregard unsupported facts. Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) ("we have... consistently and repeatedly held that a district court is entitled to expect strict compliance with Rule 56.1") (citing Bordelon v. Chi. School Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000)); Cichon v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir. 2005) (district court decision to strike statements of fact for noncompliance with L.R. 56.1 is only reviewable for abuse of discretion); see also Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (applying strict compliance even to pro se litigants).
The most glaring problem with the Union's statements of fact is that they are composed of lengthy paragraphs containing many different proposed facts but without any identifiable support. (See, e.g., R. 52-1, Def.'s Facts ¶¶ 3, 6, 12, 17, 19, 23, 24.) L.R. 56.1(a) requires not only citations at the conclusion of each paragraph, but "within each paragraph specific references to the affidavits, parts of the record or other supporting material." Just as often, the only citation offered by the Union is to a nearly identical paragraph in the affidavit of Gilbert Feldman, the Union's attorney, but without proper foundation. (See R. 52-1, Def.'s Facts ¶¶ 14, 15, 17-19.) Merely transposing statements from an affidavit does not make them proper if the declarant is attesting to hearsay or statements that are not admissible. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (in a motion for summary judgment, factual assertions must be competent evidence that is admissible at trial); Bombard v. Fort Wayne Newspapers, 92 F.3d 560, 562 (7th Cir. 1996) (same). For example, Feldman testifies in his affidavit that the Union "consistently adhered to" certain policies, (R. 52-2, Feldman Aff. ¶ 14), or that it "had a practice with respect to bargaining unit employees, " (id. ¶ 19), but he fails to explain how he is qualified to testify to these facts. The Union did not provide any other testimony to support these factual assertions. In this district, unsupported factual statements are to be disregarded. See Menasha Corp. v. News Am. Mktg. In-Store, 238 F.Supp.2d 1024, 1029 (N.D. Ill. 2003).
At other times, the Union offers purely legal arguments in its statements of fact, sometimes interspersed with case citations. (See R. 52-1, Def.'s Facts ¶¶ 8, 9, 26.) Legal arguments with case citations have no business in L.R. 56.1 statements. See Servin v. GATX Logistics, Inc., 187 F.R.D. 561, 562 (N.D. Ill. 1999); Porties v. Gen. Elec. Co., No. 02 CV 3995, 2004 WL 1151594, at *4 (N.D. Ill. Apr. 28, 2004). As such, the court disregards the Union's legal arguments in the statements of fact for purposes of sorting through its proposed facts that are allegedly not in dispute.
The Union complicates the identification of undisputed facts further by commingling supported facts with unsupported facts within its paragraphs. Green in turn misses an opportunity to make the court's job easier in weeding out the disputed facts because many of Green's objections also fall short of the requirements of L.R. 56.1(b) for lack of "specific references to the affidavits, parts of the record, and other supporting materials relied upon." (See, e.g., R. 57, Pl.'s Fact Resp. ¶¶ 7, 20, 21, 25, 27.) Wherever Green's objections or denials of the Union's statements of facts lack specific citations to the record, the court deems the Union's facts to be admitted. See Howard-Ahmad v. Chi. Sch. Reform Bd. of Trs., 161 F.Supp.2d 857, 859 n.1 (N.D. Ill. 2001) (strictly enforcing L.R. 56.1 against unsupported responses to proposed facts); Waugaman v. Univ. of Chi. Hosps., No. 00 CV 2581, 2002 WL 472278, at *3 n.6 (N.D. Ill. Mar. 28, 2002) (refusing to consider "wholesale" denials without supporting citations to the record).
A strict application of L.R. 56.1 to the statements in this case yields the following facts which are relatively straightforward, if occasionally wanting for context. Green began employment with the School District in August 1980 and he obtained tenured status three years later in June 1983. (R. 58, Pl.'s Facts ¶ 1.) However, Green's employment was not without difficulties and his relationship with the Union was also strained. Since 2003 Green has filed several other actions against the Union, including a charge of race discrimination with the Equal Employment Opportunity Commission ("EEOC") and with the Illinois Department of Human Rights on September 26, 2005. (Id. ¶ 22; R. 52-1, Def.'s Facts ¶ 3.)
On April 5, 2010, the School District fired Green from his position. (Id. ¶ 2.) In response, Green sought representation from the Union to contest his termination. (R. 58, Pl.'s Facts ¶ 5.) The Union referred Green's request to its attorney, Feldman. (Id.) Feldman is also the attorney who represented the Union in several matters Green filed against the Union. (R. 52-1, Def.'s Facts ¶ 3.) On April 12, 2010, Feldman communicated the following to Green:
I am writing in response to your request that my client, [the Union], provide you with representation in your pending dismissal case under the Teacher Tenure Act. After lengthy consideration, a determination has been made not to provide you with such representation for the following reasons.
The Union and its legal counsel each have an adversarial relationship with you because you have repeatedly instituted litigation against the Union and we have represented the Union in these cases.
This decision would be more complicated if the issue arose in the context of collective bargaining negotiations or the contract grievance procedure. That is because the Union is the legal owner of such proceedings and owes you a duty of fair representation with respect to them; and the law is that a Union can represent employees in these cases regardless of conflicting interests. However, you and not the Union own your claim under the Tenure Act, ...