United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
pro se suit against K.R. Miller Contractors Inc. and
Fibrwrap Construction Co., Russell Brown alleges that he
suffered discrimination based on his color and race, as well
as retaliation for complaining of that discrimination, in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and 42 U.S.C. §
1981. Doc. 8. With discovery having closed, K.R. Miller and
Fibrwrap move for summary judgment. Docs. 67, 70. Their
motions are granted.
with Local Rule 56.1(a)(3), K.R. Miller and Fibrwrap filed
statements of undisputed facts along with their summary
judgment motions. Docs. 72, 74. Local Rule 56.1(b)(3)(B)
required Brown to respond to Defendants' Local Rule
56.1(a)(3) statements with evidentiary support on a
paragraph-by-paragraph basis. See N.D. Ill. L.R.
56.1(b)(3)(B) (requiring a “concise response to the
movant's statement that shall contain … 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”). And
Fibrwrap timely served Brown with a Local Rule 56.2 Notice,
which explained in detail the requirements of Local Rule
56.1. Doc. 78. (K.R. Miller's Local Rule 56.2 Notice
appears to have been untimely, Doc. 82, but that error was
harmless given Fibrwrap's timely Notice. See Outlaw
v. Newkirk, 259 F.3d 833, 841 (7th Cir. 2001) (holding
that the failure to warn a pro se plaintiff of the
need to respond to a summary judgment motion with affidavits
was harmless because the plaintiff suffered no prejudice);
Vesey v. Owens, 2015 WL 3666730, at *1 n.2 (N.D.
Ill. June 12, 2015) (holding that any error in a
defendant's failure to serve a Local Rule 56.2 Notice was
harmless “given that defendants Miller and Thomas
served plaintiff with same … well before
plaintiff's response to defendants' motions was
having been served with a timely Local Rule 56.2 Notice,
Brown did not file a Local Rule 56.1(b)(3)(B) response. He
did file an opposition brief, though some three weeks after
the deadline and several days after K.R. Miller and Fibrwrap
had filed their replies. Doc. 85. Brown's brief, even if
liberally construed, does not include a Local Rule
56.1(b)(3)(B) response. Doc. 85 at 4. Moreover, even if the
assertions in Brown's brief were treated as Local Rule
56.1(b)(3)(B) denials of factual assertions in
Defendants' Local Rule 56.1(a)(3) statements, he does not
support his denials with citations to the record, and so
those denials would be disregarded in any event. See
Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809,
817 (7th Cir. 2004) (“[W]here 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 part of the record that supports such
status as a pro se litigant does not excuse his
failure to comply with Local Rule 56.1(b)(3)(B). See
McNeil v. United States, 508 U.S. 106, 113 (1993)
(“[W]e 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 Fed.Appx. 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
Fed.Appx. 663, 664 (7th Cir. 2010) (“[S]trictly
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)
(“[E]ven pro se litigants must follow rules of
civil procedure.”). Given Brown's failure to comply
with Local Rule 56.1(b)(3)(B), the facts set forth in
Defendants' Local Rule 56.1(a)(3) statements 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 (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); Ciomber v.
Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir.
2008); Raymond v. Ameritech Corp., 442 F.3d 600, 608
(7th Cir. 2006).
said, the court is mindful that “a nonmovant's
failure to respond to a summary judgment motion or failure to
comply with Local Rule 56.1 … does not …
automatically result in judgment for the movant. [The movant]
must still demonstrate that it is entitled to judgment as a
matter of law.” Keeton, 667 F.3d at 884
(internal citations and quotation marks omitted). The court
therefore will recite the facts in the Defendants' Local
Rule 56.1(a)(3) statements, viewing the facts and the
inferences therefrom as favorably to Brown as the record and
Local Rule 56.1 allow. See Canen v. Chapman, 847
F.3d 407, 412 (7th Cir. 2017). The court then will determine
whether, on those facts, Defendants are entitled to summary
judgment. At this juncture, the court must assume the truth
of those facts, but does not vouch for them. See Arroyo
v. Volvo Grp. N. Am., LLC, 805 F.3d 278, 281 (7th Cir.
Miller was the general contractor for a construction project
at a Chicago Public Schools job site. Doc. 74 at ¶ 6.
While working at the site in July 2013, Brown was employed by
Keyboard Enterprises, K.R. Miller's subcontractor.
Ibid. K.R. Miller's superintendent, James
Kerrigan, would tell Brown each morning what work had to be
done at the site. Id. at ¶¶ 7-8. At some
point in 2013 or 2014, Brown complained to K.R. Miller and to
the owner of Keyboard Enterprises about racially derogatory
comments that Kerrigan made to him. Doc. 72 at ¶¶
21, 31-32. Brown is African-American. Doc. 73 at 2.
later, in July 2016, Brown began working at a different
Chicago Public Schools job site, where K.R. Miller once again
was the general contractor. Doc. 74 at ¶ 9. Fibrwrap,
K.R. Miller's subcontractor, was charged with providing
structural repairs to girders and joists at the site.
Id. at ¶ 14. Brown was one of approximately ten
people hired by Fibrwrap to perform that work. Id.
at ¶¶ 9-10. Brown worked directly for and was paid
by Fibrwrap. Id. at ¶¶ 16-17. During what
turned out to be his three-day tenure with Fibrwrap, Brown
saw Kerrigan twice. Id. at ¶ 22.
27, 2016, Brown and another Fibrwrap employee, a white man
named Frazer, were assigned several tasks as part of the
night shift crew. Doc. 72 at ¶¶ 8, 13-14.
Fibrwrap's foreman, Alberto Garcia, later checked on
their work, “determined that they had made little to no
progress, ” and reported the pair's lack of
productivity to Fibrwrap's superintendent, Ted Ferrer.
Id. at ¶ 15. Ferrer directed Garcia to send
Brown and Frazer home after eight hours of work without
overtime. Id. at ¶ 17. Garcia did so.
Id. at ¶ 18. At no point did Garcia tell Brown
or Frazer that they had been fired. Id. at ¶
being informed that he would not be permitted to work
overtime, Brown told Garcia that he believed the decision was
due to the complaints he had lodged against Kerrigan in 2013.
Id. at ¶ 20. Garcia was not aware of those
complaints until Brown mentioned them. Id. at ¶
33. Brown believes that Kerrigan called Ferrer and that the
call led to Ferrer's decision to order Brown and Frazer
to leave work early. Doc. 74 at ¶ 21. However, Ferrer
never received a phone call or any other communication from
Kerrigan regarding Brown and was unaware of Brown's prior
interactions with Kerrigan when he made the decision to limit
Brown and Frazer to eight hours of work on July 27. Doc. 72
at ¶ 35.
worked only six hours before voluntarily walking off the job
site on July 27. Id. at ¶¶ 22, 37-38. He
did not return. Ibid. Frazer also did not return to
the job site, but testified that he did not believe that
Garcia had fired him on July 27. Id. at ¶¶
Seventh Circuit “generally use[s] the same standards to
review discrimination and retaliation claims under §
1981 and Title VII.” Baines v. Walgreen Co.,
863 F.3d 656, 661 (7th Cir. 2017); see also Lane v.
Riverview Hosp., 835 F.3d 691, 695 (7th Cir. 2016)
(“We analyze Title VII and § 1981 claims under the
same framework.”). For convenience's sake,
therefore, the court will principally draw on Title VII case
law when ...