Donnelly v. Chicago Park District

Decision Date24 February 2006
Docket NumberNo. 03 C 5201.,03 C 5201.
PartiesTheresa DONNELLY, Plaintiff, v. CHICAGO PARK DISTRICT, Defendants.
CourtU.S. District Court — Northern District of Illinois

Thomas E. Patterson, Dennis Neri Ventura, Scott W. Berends, The Patterson Law Firm, Chicago, IL, for Plaintiff.

Sean F. Taylor, Jeanne G. Toft, Chicago Park District, Law Department, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

COLE, United States Magistrate Judge.

The Chicago Park District has moved for summary judgment on the three-count complaint of Theresa Donnelly. The motion is granted as to Count II, denied as to Count III and as more fully explained below, further briefing is ordered on Count I.

INTRODUCTION
A.

For many years there have been complaints from the most responsible of quarters about the quality of briefing at all levels of the judicial system. The late Karl Llewellyn recounted how every one of his many law professor friends who became judges told him that "the general run of briefs which has come before his court—with of course many gratifying exceptions—seems to him barely and scrapingly passable, or else inadequate or worse." The Common Law Tradition: Deciding Appeals, 30 (1960). Much to his amazement and some dismay, Professor Llewellyn's own endeavors confirmed the "frequency with which the relevant briefs miss or obscure telling points, choose foreseeably losing ground, or mismanage promising positions." Id.

Judge Friendly and Judge Posner have expressed the same views. See Friendly, The Common Law Tradition: Deciding Appeals, in Friendly, Benchmarks, 34, 39 (1967); Jeffrey Cole, Economics of Law: An Interview With Judge Posner, 22 LITIGATION 23, 31 (Fall 1995). So has Judge Gettleman, who has said that he has seen "some of the most astonishingly incompetent writing imaginable." Robert Gettleman, We Can Do Better, 25 LITIGATION 3, 62 (Summer 1999). See also Alexander v. City of South Bend, 433 F.3d 550, 552 (7th Cir.2006)("the parties' attorney have not presented the factual background of this case in a clear and well-organized way; the district court characterized Alexander's pleadings as `poorly written, convoluted and confusing,' and the same is true of his appellate briefs.").

Underinclusive and inadequate presentations shift the responsibility to the court to do the lawyer's work. That's a risky business, for it requires the judge to be clairvoyant or intuitively to know the contours of the unmade argument. And, it rests on the hope that the judge will explicate the arguments that the briefs have left undeveloped, rather than resorting to the rule that superficial, skeletal, and unsupported arguments will be deemed waived or forfeited. United States v. Cusimano, 148 F.3d 824, 828 n. 2 (7th Cir.1998). The hope is, more often than not, vain, for judges are not like pigs hunting for truffles buried in the briefs. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). It is not their responsibility to research and construct the parties' arguments. United States v. McLee, 436 F.3d 751 (7th Cir.2006).1

In the instant case, the briefing of the Chicago Park District in support of its motion for summary judgment provided, at best, only the most minimal assistance to the court. Indeed, in a number of instances, it was of no help at all, resorting as it did to the "ostrich-like tactic of pretending that potentially dispositive authority [and argument] against [the Park District's] contention[s] d[id] not exist"—a tactic the Seventh Circuit has said "is as unprofessional as it is pointless." Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1198 (7th Cir.1987); Fred A. Smith Lumber Company v. Edidin, 845 F.2d 750, 753 (7th Cir. 1988). See also, Smith v. Chicago School Reform Bd. Of Trustees, 165 F.3d 1142, 1148 (7th Cir.1999)("The School Board's brief relies heavily on Stafford; tellingly, Smith's brief does not mention that case.").

As a consequence of the Chicago Park District's inadequate and disappointing briefing—both its opening and its reply brief—it is impossible to make an informed judgment about Count I, which alleges gender discrimination under Title VII. While it would be permissible simply to deny the motion as it relates to Count I, enough questions appear to be implicated that it would not be institutionally responsible to take that course, which would necessitate a trial where perhaps there should be none. Thus, the defendant is accorded the option of filing an additional brief on Count I only directed to the specific questions discussed at the conclusion of Argument II, infra.

B.

The plaintiff has worked for the Beaches and Pools Department of the Chicago Park District since 1997. She is presently a Natatorium Instructor, having been promoted to that position in December of 2004. Plaintiff began her tenure with the Park District as a lifeguard, and she was eventually promoted to the position of Natatorium Instructor on an earlier occasion before her career took a turn for the worse for several months in 2002. During that period, plaintiff contends that she was unfairly reprimanded, relieved of her supervisor duties, and transferred to a less desirable work location; all—according to her—because she made numerous requests for more desirable work hours and location and failed to discipline her staff. She claims that the Park District did not take similar action against male life guards who engaged in the same conduct. Plaintiff also claims that the Park District refused her request for family medical leave in September of that year. On July 25, 2003, the plaintiff filed a three-count complaint, alleging that the Park District discriminated against her because of her gender in violation of Title VII of the Civil Rights Act of 1964, breached its contract with her, and violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. The Park District has moved for summary judgment on all three claims. For the following reasons, the Park District's motion is granted as to Count II, but not as to Counts I and III.

FACTUAL BACKGROUND2

As already noted, the plaintiff's troubles began in 2002, when she was supervising five pool locations. At that time, the Park District initiated several new policy directives for its lifeguard staff. (Defendant's Local Rule 56.1 Statement ("Def. St.",) ¶¶ 11, 13, 19; Plaintiff's Answer to Def. St. ("Pl.Rsp.",) ¶¶ 11, 13, 19). Plaintiff admittedly disagreed with the policies and voiced her objections at a June 2002 meeting. (Def. St. ¶ 20; Pl.Rsp. ¶ 20). Several male lifeguards also voiced objections at the meeting regarding the policy changes. (Def. St. ¶ 13; Pl.Rsp. ¶ 13; Plaintiff's Local Rule 56.1 Statement of Facts, ¶¶ 26-27). The difference, according to the Park District, was that the male lifeguards did not "grandstand" or "get people riled up" the way plaintiff did. (Def. St. ¶ 14). Eric Fisher, who was the assistant manager of the Beaches and Pools Department at that time, testified that plaintiff's behavior at the meeting amounted to direct insubordination. (Def.St. ¶ 15; Pl.Rsp. ¶ 15).

According to the plaintiff, she was told "if you don't like it, there's the door." (Def. St. ¶ 11; Pl.Rsp. ¶ 11). But the parties agree that Ms. Donnelly was not asked to leave the meeting or disciplined for her remarks. (Def.St. ¶ 11; Pl.Rsp. ¶ 11). The Park District's brief focuses exclusively on this incident, and its motion for summary judgment on plaintiffs Title VII claim rests on the argument that, because neither the plaintiff nor the male lifeguards were disciplined after the meeting, plaintiff cannot show she was treated differently from similarly situated males. (Defendant's Memorandum in Support of Its Motion for Summary Judgment, at 5). In so doing, however, the Park District ignores another incident that plaintiff clearly alleges in her complaint as part of her Title VII claim. The incident, which occurred during the same time frame in the summer of 2002, involved plaintiff's response to a request to discipline two lifeguards under her supervision. (Complaint, ¶ 10-12).

In regard to this second incident, it is undisputed that plaintiff was reprimanded for failing to adequately discipline two lifeguards working at one of the pools she supervised. (Def.St. ¶ 11; Pl.Rsp. ¶ 11; Pl.St. ¶ 15). She was told to issue written reprimands to the two employees. According to the plaintiff, she issued the reprimands despite her misgivings. (Pl.St. ¶ 19; Ex. J, Fisher Dep. at 38). Plaintiff testified that she wrote a reprimand, but also included a "rebuttal," indicating that she did not feel the two lifeguards deserved disciplinary action. (Pl.St., Ex. G Plaintiff's Dep. at 43). The Park District denies that plaintiff issued the reprimands, but offers no evidence to support its position. (Defendant's Response to Plaintiffs Local Rule 56.1 Statement ("Def Rsp."), ¶ 19).

The testimony of both its Deputy Director of Beaches and Pools, and its Manager of the Beaches and Pools Department, however, both tend to support the plaintiff. Jaime Anderson, the deputy director, explained that, when Mr. Fischer instructed plaintiff to write up the two lifeguards, she attached a letter saying that "she was doing this because Mr. Fischer had seen these employees doing whatever the infraction was." (Def.St., Ex. E., Anderson Dep., at 29). At his deposition, Mr. Fischer admitted that plaintiff did, in fact, write the reprimands, but they included an explanation that she did not agree with the reprimand. (Def.St., Ex. J., Fischer Dep., at 38-40). The Park District does not discuss this testimony anywhere in its materials, however, because it does not address this incident as a part of plaintiffs Title VII claim.

Shortly thereafter, the Park District stripped the plaintiff of her supervisory responsibilities and assigned her to a single pool in Foster Park. (Pl.St. ¶ 17). In a memorandum dated August 12, 2002, the Park District informed plaintiff...

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