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Brown v. K.R. Miller Contractors Inc.

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

June 13, 2018



          Gary Feinerman, Judge.

         In this 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.


         Consistent 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 due”).)

         Despite 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 a denial.”).

         Brown's 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).

         That 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. 2015).

         K.R. 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.

         Years 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.

         On July 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 ¶ 19.

         Upon 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.

         Brown 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 ¶¶ 24, 38.


         The 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 ...

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