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Duah v. ABM Parking Services, Inc.

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

August 30, 2016

SAMPSON DUAH, Plaintiff,


          JORGE L. ALONSO, United States District Judge

         Before the Court are defendant's motion for summary judgment and plaintiff's motion to withdraw his request to voluntarily dismiss his ADEA claim. For the reasons explained below, the motions are granted.


         Plaintiff, Sampson Duah, brought this employment discrimination action against his employer, ABM Parking Services, Inc. (“ABM”). He asserts the following claims: unlawful race and national-origin discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Counts I, III, and V); unlawful race discrimination in violation of 42 U.S.C. § 1981 (Count II); and violation of the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. §§ 621 et seq. (Count IV).[1] (ECF No. 1, V. Compl.) ABM moves for summary judgment.


         A. Legal Standards

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court must construe the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014); McKinney v. Cadleway Props., Inc., 548 F.3d 496, 499-500 (7th Cir. 2008). A factual dispute is “genuine” only if a reasonable jury could find for either party. Nichols v. Mich. City Plant Planning Dep't, 755 F.3d 594, 599 (7th Cir. 2014). Rule 56 imposes the initial burden on the movant to inform the court why a trial is not necessary. Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Where the nonmovant bears the ultimate burden of persuasion on a particular issue, the movant's initial burden may be discharged by pointing out to the court that there is an absence of evidence to support the nonmoving party's case. Id. Upon such a showing, the nonmovant must then “make a showing sufficient to establish the existence of an element essential to that party's case.” Id. (internal quotation marks and citation omitted). The nonmovant need not depose his own witnesses or produce evidence in a form that would be admissible at trial, but he must go beyond the pleadings to demonstrate that there is evidence upon which a jury could find in his favor. Id. at 1168-69 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)).

         Local Rule 56.1 requires the party moving for summary judgment to submit “a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law.” L.R. 56.1(a)(3). It requires the party opposing the motion to respond to each fact asserted in the movant's statement and, in the case of any disagreement, include “specific references to the affidavits, parts of the record, and other supporting materials” upon which the opposing party relies. L.R. 56.1(b)(3)(B). If the nonmovant fails to follow the dictates of the Local Rule, he is deemed to have admitted the facts asserted by the movant. Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir. 2015) (“‘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.'”) (quoting Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)). The district court may rigorously enforce Local Rule 56.1. See Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015); Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). The rule “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) (internal quotation marks omitted).

         Plaintiff has not complied with the requirements of Local Rule 56.1. In his response to defendant's statement of material facts, he fails to support any of his denials with specific references to the affidavits, parts of the record, or other supporting materials on which he relies.[2](ECF No. 53, Pl's L.R. 56.1 Resp., ¶¶ 6, 7, 10, 11, 13-22, 24-29, 31-40, 43-46, 48-60, 62-65, 69-72, 74-77, 79, 81-86, 89-91, 93-96, 98, 99, 101, 102, 104, 113, 115-118.) In several instances, he states that he has insufficient information to either admit or deny, which is an improper response that constitutes an admission. (Id. ¶¶ 2, 8, 9, 12, 23, 66-68, 87, 88, 92.) See McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998). Accordingly, the Court deems plaintiff to have admitted all of the facts set out in defendant's statement. See Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000) (stating that the “consequence for noncompliance” with Local Rule 56.1 is that “the movants' assertions of material fact are deemed admitted . . . regardless of what contrary evidence is in the record”); Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001) (“[A] lawsuit is not a game of hunt the peanut. Employment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are obliged in our adversary system to scour the record looking for factual disputes.”) (internal quotation marks and ellipsis omitted).

         B. Undisputed Facts

         Because plaintiff has conceded ABM's version of the facts, the Court's recitation is drawn primarily from ABM's fact statement.

         1. Plaintiff's Employment and Job Title

         Plaintiff is a 68-year-old black man who was born in Ghana. In February 1999, he began his full-time employment in the parking industry with System Parking, Inc., which was acquired by L&R Group of Companies (“L&R”) on March 4, 2008 and then by ABM on November 1, 2010. When plaintiff was employed by System Parking, his job title was “auditor” (except during a brief training period). He spent the large part of his workday visiting parking facilities, checking the pay machines or boxes to ensure that customers had paid for parking, and issuing parking violations in the event they had not paid. Plaintiff also uploaded the parking violations into a master database and processed payments for parking violations. Before the acquisitions of System Parking, plaintiff also performed various other job duties from time to time, such as training co-workers and conducting “rate surveys” of other parking lots near System Parking facilities where he was checking payments.

         On February 4, 2009, plaintiff filed charges with the EEOC and Illinois Department of Human Rights (“IDHR”) in which he complained that System Parking had discriminated against him on the basis of age and/or national origin by delaying his approval to become a union member, [3] denying him the use of office space with a computer, and taking away his title of “auditor.” After System Parking's president told plaintiff that he could keep the job title, plaintiff decided not to file suit. His primary job duties remained unchanged.

         After ABM acquired System Parking in November 2010, plaintiff's primary job duties remained the same: he still checked ABM's parking lots to ensure that customers paid for parking and issued parking violations. At the time of the acquisition, System Parking provided ABM with information about its employees and their job titles. System Parking informed ABM that plaintiff's job title was “auditor, ” and plaintiff's title remained “auditor” despite the fact that it did not jibe with ABM's definition of “auditor.” The title means different things at different companies in the parking industry and has evolved over the years. A System Parking “auditor” performs mainly the same duties as an ABM “lot checker.” Plaintiff was performing the same duties as ABM “lot checkers” Demetrius Ewing, Abdul Raja Jimjimo, Marvis Hiner, and Christopher Petty, all or most of whom are African-American.

         Plaintiff performed less than ten percent of the duties performed by an ABM “auditor.” An ABM “auditor” completes daily audits; maintains and files audit reports; reviews and reports errors in financial entries, documents, and reports; documents and discusses with management any weaknesses in operating procedures and internal controls; acts as a liaison with ABM corporate employees regarding internal control issues; and assists in preparing for audits. ABM “auditors” use a software program called Business Intelligence to obtain their data to perform audits. To qualify for employment as an “auditor” at ABM, one must have, among other things, a bachelor's degree in accounting ...

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