Gross v. Peoples Gas Light & Coke Co.

• Decision Date: 30 September 2022
• Docket Number: 17-cv-3214
• Parties: Jerry Gross, Plaintiff, v. Peoples Gas Light and Coke Co. and WEC Business Services, LLC, Defendants.
• Court: U.S. District Court — Northern District of Illinois

Jerry Gross, Plaintiff, v. Peoples Gas Light and Coke Co. and WEC Business Services, LLC, Defendants.

No. 17-cv-3214

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

September 30, 2022

MEMORANDUM OPINION AND ORDER

JOAN B. GOTTSCHALL, UNITED STATES DISTRICT JUDGE

This employment discrimination, failure to accommodate, and retaliation suit comes before the court on defendants' renewed motion for summary judgment. Plaintiff Jerry Gross (“Gross”), who at all relevant times identified as an African American man with a disability over the age of 40 (see Defs.' Resp. to Pl.'s LR 56.1(b)(3) Am. Stmt. of Material Facts (“RSAF”) ¶ 10 ECF No. 149), brings claims against his alleged former joint employers, The Peoples Gas Light and Coke Company (“Peoples Gas”), and WEC Business Services, LLC (“WBS”), under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e et seq.; the Americans with Disabilities Act, as amended (“ADA”), 42 U.S.C. § 12101 et seq.; and the Age Discrimination and Employment Act of 1967, as amended (“ADEA”), 29 U.S.C. § 621 et seq. See Third Am. Compl. 1-2 7-14, ECF No. 55. Peoples Gas contends that no reasonable jury could find that it was Gross's joint employer. Both defendants argue that Gross has failed to come forward with sufficient evidence to proceed to trial on all claims. For the following reasons, defendants' motion is granted except for Gross's claims based on his non-selection for two internal job vacancies.

I. Summary Judgment Standard and Local Rule 56.1

A. Rule 56 Summary Judgment Standard

Summary judgment is appropriate “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). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In resolving summary judgment motions, “facts must be viewed in the light most favorable to,” and all reasonable inferences from the evidence must be drawn in favor of the nonmoving party-but “only if there is a genuine dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quotation omitted); Blasius v. Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016) (citing Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016)).

The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). After “a properly supported motion for summary judgment is made, the adverse party must” go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 255 (quotation omitted); see also Modrowski, 712 F.3d at 1169 (stating party opposing summary judgment “must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in her favor” (citations and quotations omitted)). Summary judgment is warranted when the nonmoving party cannot establish an essential element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).

B. Local Rule 56.1 Fact Statements and Memoranda of Law

This court's Local Rule (“LR”) 56.1 specifies the procedure for presenting facts a party contends are undisputed and material. The formal requirements of LR 56.1 aid the just, speedy, and inexpensive resolution of litigation by ensuring that “the facts material to the issues in the case and the evidence supporting such facts are clearly organized and presented for the court's summary judgment determination.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015). The Seventh Circuit has therefore “routinely upheld the district court's discretion in requiring parties to comply strictly with local rule requirements.” Id. (quoting Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)).

Local Rule 56.1(a)(2) requires a party moving for summary judgment to submit “a statement of material facts.” The nonmoving party may also submit a “statement of additional material facts.” LR 56.1(b)(3). These fact statements must “consist of concise numbered paragraphs” and each paragraph must be “supported by citation to the specific evidentiary material, including the specific page number, that supports it. The court may disregard any asserted fact that is not supported with such a citation.” LR 56.1(d)(1)‒(2). The opposing party may file a response to these fact statements. See LR 56.1(b)(2), (c)(2). “Each paragraph [of the response] shall set forth the text of the asserted fact (including its citations to the supporting evidentiary material), and then shall set forth the response.” LR 56.1(e)(1).

(2) Content. Each [paragraph of the] response must admit the asserted fact, dispute the asserted fact, or admit in part and dispute in part the asserted fact. If the response admits in part and disputes in part the asserted fact, it must specify which part of the asserted fact is admitted and which part is disputed. A response may not set forth any new facts, meaning facts that are not fairly responsive to the asserted fact to which the response is made. A response may not assert legal arguments except to make an objection, including objections based on admissibility, materiality, or absence of evidentiary support. . . .

(3) Citations. To dispute an asserted fact, a party must cite specific evidentiary material that controverts the fact and must concisely explain how the cited material controverts the asserted fact. Asserted facts may be deemed admitted if not controverted with specific citations to evidentiary material.

LR 56.1(e)(2)‒(3).

This court struck the parties' first round of summary judgment briefing and fact statements because both sides violated LR 56.1, and, given the state of the record, the court determined “that strict enforcement of LR 56.1 is required to ensure an accurate and clear presentation of the facts at summary judgment.” Order at 5, ECF No. 134 (Jan. 21, 2022). The “most confounding” of the parties' violations was Gross's summary judgment response memorandum, which contained at least 131 direct citations to summary judgment exhibits and no citations to the LR 56.1 fact statements. Id. at 3. As this court explained, including direct citations to summary judgment evidence makes identifying what facts are disputed and what evidence supports the parties' factual positions exceedingly difficult. See id. at 3-4 (quoting Magee v. McDonald's Corp., 2019 WL 10447014, at *4 (N.D. Ill. Mar. 28, 2019)). The court also found the citations in defendants' LR 56.1(a)(2) fact statement lacked the specificity required by the rule, leaving the court to search through the entire index of exhibits to locate each document cited. See id. at 4-5 (citing Magee, 2019 WL 10447014, at *4). In ordering rebriefing, this court stated:

The court does not lightly take the step of ordering rebriefing. A great deal of time and effort likely went into preparing and submitting the parties' summary judgment memoranda and LR 56.1 fact statements and responses. Rebriefing summary judgment will both delay this four-year-old case and impose costs upon the parties and their counsel. Nevertheless, after attempting to sift through the exhibits, legal memoranda, and fact statements, the court concludes that strict enforcement of LR 56.1 is required to ensure an accurate and clear presentation of the facts at summary judgment.

Id. at 5.

The present round of summary judgment memoranda and fact statements have remedied some of the issues the court identified. But, overall, the amended memoranda and LR 56.1 fact statements continue to make determining what facts are disputed and, in some instances, what arguments the parties are making exceedingly difficult.

First, Gross added occasional citations to the LR 56.1 fact statements to his amended memorandum of law opposing summary judgment, but he continues to cite directly to summary judgment evidence throughout, in violation of LR 56.1. See, e.g., Pl.'s Resp. in Opp. to Defs.' Mem. Supp. Mot. Summ. J. (“Resp.”) 7-25, ECF No. 144. For example, Gross supports his factual position on joint employment entirely with direct citations to his deposition testimony. See id. at 6-7. For the reasons given when the first round of summary judgment briefing was stricken, the court disregards all of Gross's direct citations to summary judgment evidence in his amended response memorandum. See, e.g., Mervyn v. Nelson Westerberg, Inc., 142 F.Supp.3d 663, 664‒66 (N.D. Ill. 2015) (collecting cases).

Next, both sides contend that the evidence their opponent cites does not support, in part or in full, certain paragraphs of the LR 56.1 fact statements. See, e.g., Pl.'s Resp. to Defs.' LR 56.1(a)(2) Am. Stmt. of Material Facts (“RSOF”) ¶¶ 8, 12, 25, 36, 38, ECF No. 143; RSAF ¶¶ 9, 16, 25. As it is required to do, the court independently determines whether and to what extent each paragraph of the LR 56.1 fact statements is supported by the cited evidence. See Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). Indeed, the evidence cited in support of certain undisputed paragraphs of the parties' fact statements does not stand for the proposition for which it is cited. See, e.g., RSOF ¶¶ 46, 52. To the extent the facts not supported by the cited evidence are material, they will be discussed below.

Third both sides rely on Gross's...