Mashni v. Bd. of Educ. of Chi.
| Decision Date | 01 September 2017 |
| Docket Number | No. 15 C 10951,15 C 10951 |
| Parties | ANTHONY MASHNI, Plaintiff, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Anthony Mashni brings this lawsuit against his employer, the Board of Education of the City of Chicago, for discrimination and retaliation in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA," for short) and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and for intentional infliction of emotional distress.1 R. 1, Compl.2 Mashni claims that the principal and assistant principal at the Norman A. Bridge School (which is a Chicago public school) mocked, insulted, and harassed him because of his generalized anxiety disorder. Id. Mashni also claims that the Board failed to accommodate his disability and retaliated against him for requesting the accommodation. Id. The Board seeks summary judgment on all of Mashni's claims. R. 41, Mot. Summ. J. For the reasons discussed below, the motion is granted in part and denied in part.
In deciding the Board's motion for summary judgment, the Court views the evidence in the light most favorable to Mashni, because he is the non-movant. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Before summarizing the facts of this case, the Court first addresses two arguments raised by the Board: (1) that Mashni's statement of additional facts violates Local Rule 56.1, and (2) that several statements in Mashni's declaration should not be considered. See R. 59, Def.'s Reply Br. at 2-3.
The Board argues that a number of statements in Mashni's Local Rule 56.1 Statement of Additional Facts, R. 49, should be disregarded. Def.'s Reply Br. at 2. The Board generally alleges that PSOF3 ¶¶ 6-16, 18, 19, 25, 26, 31, 33, 34, 41, 46, and 49 are "opinion/argumentative, conclusory, vague, immaterial, speculative, and/or hearsay" are therefore improperly asserted—but fails to elucidate each individual statement's shortcomings. Id. This scattershot approach does not warrant striking those statements in their entirety.
First of all, the Board has not cited "specific references to the affidavits, parts of the record, and other supporting materials relied upon ..." in its responses to PSOF ¶¶ 6-11, 14, and 33, as required by Local Rule 56.1. See L.R. 56.1(a), (b)(3)(B)(emphasis added). So far from precluding Mashni's reliance on those statements, it is the Board that actually has conceded them as admitted. See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) ()
In its responses to the remaining statements, the Board at least refers to the record. But even with those references, the Board neglects to explain exactly what about the statements is improper. PSOF ¶¶ 12-13, 15-16, 18, 19, 25, 26, 31, 34, 41, 46, and 49 state facts and cite to supporting material in compliance with Local Rule 56.1(b)(3)(C). Without any insight into the Board's specific reasons for asking to exclude the statements, the Court finds no reason to strike them out entirely. But because the Board's responses to those statements comply with Local Rule 56.1, properly disputed statements will be treated as such.
Two of these statements require additional comment. The Court will not strike PSOF ¶¶ 6 and 46, but Mashni must reduce their substance to admissible form before trial. See Payne v. Pauley, 337 F.3d 767, 775 n.3 (7th Cir. 2003) (). PSOF ¶ 6 relies on hearsay statements from Mashni's psychiatrist, Theodore Handrup. Because the statements were made for the purpose of supporting Mashni's request for a reasonable accommodation of his alleged disability, they are not records of a regularly conducted activity. See Fed. R. Evid. 803(6). So Dr. Handrup must testify to the substance of PSOF ¶ 6 if it is to be allowed at trial. PSOF ¶ 46 relies partly ondocuments that were produced in discovery and discussed in Mashni's declaration, but were not included in the record. See R. 50-1, Mashni Dec. ¶ 3 (). At trial, Mashni must offer the actual documents, and then they may be allowed for a nonhearsay purpose or under Federal Rule of Evidence 803(6) ().
Additionally, although Mashni did not raise this issue in a sur-reply (at some point the back and forth must cease), the Court will strike the first sentence of DSOF ¶ 29 on its own initiative, because that statement is not supported by the record. DSOF ¶ 29 states that Christopher Brake closed Mashni's position at the Bridge School on April 18, 2015, citing Brake's declaration. DSOF ¶ 29; R. 42-6, Brake Dec. ¶ 12.4 But Brake testified in his deposition that he did not remember when he closed the position. Pl.'s Resp. DSOF ¶ 29; R. 50-6, Brake Dep. at 35:16-20. The Board "may not raise a disputed material fact by submitting an affidavit containing conclusory allegations which contradict plain admissions in a prior deposition." See Adusumilli v. City of Chi., 164 F.3d 353, 360 (7th Cir. 1998). Without an explanation as where the April 18 date came from, the Board cannot assert that Brake closed Mashni's position on that date.
Next, the Board argues that paragraphs 2-7, 9, 11, 16, 18, and 19 of the Mashni Declaration should be stricken, adopting the same kitchen-sink arguments it deployed against the PSOF statements discussed above. For the same reasons discussed in the previous section, the Court leaves those paragraphs in place.
But the Court will strike paragraphs 12-14 of the Declaration. In these paragraphs, Mashni attempts to supplement his deposition testimony with additional instances of alleged harassment—even though he repeatedly attested to the completeness of his answers during the deposition itself. See, e.g., R. 50-2, Mashni Dep. at 355:21-356:8 ( ) This inconsistency between affidavit and deposition testimony is not permitted, at least without a reasonable explanation. "Where a deposition and affidavit are in conflict, the affidavit is to be disregarded and the court should only consider the deposition unless it is demonstrated that the statement in the deposition was mistaken." Kaplan v. City of Chi., 2004 WL 2496462, at *2 (N.D. Ill. Nov. 4, 2004) (quoting Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001)) (quotations omitted). Mashni attempts to explain his earlier omission by arguing that his anxiety medication, Klonopin, "caused [him] to feel foggy[,] making it difficult to retriev[e] information." Mashni Dec. ¶ 12. But Mashni does not offer any evidence that Klonopin has that side effect, or any details about what would aggravate or mitigate the memory problems (such as dosage, timepassage since taking the medication, whether time of day affects the purported problem, and so on). At that level of generality, the Board cannot begin to test Mashni's conclusory assertion about how memory problems would impair the recall of the facts concerning Brake's alleged harassment. And even if the medication had that effect, there was nothing preventing his attorney from trying to refresh Mashni's memory on redirect examination over the course of his three-day-long deposition. At least if Mashni's attorney had done that, then the defense could have asked Mashni questions during the deposition (or, at worst, sought to re-open the deposition during the fact discovery period). What's more, there is no suggestion in the record that Mashni attempted to correct his deposition answers after reviewing the transcript, under Federal Rule of Civil Procedure 30(e)(1). If he had done that, the Board again would have had a chance to follow-up on the newly averred facts. The omitted facts are central to Mashni's hostile work environment claim, so his failure to disclose them earlier is not reasonable. So the paragraphs will be disregarded, as will any PSOF statements that rely on them. With these issues now addressed, the Court turns to a description of the facts.
Mashni is an employee of the Board of Education of the City of Chicago, which operates the Chicago public-school system. DSOF ¶¶ 1-2. He has worked for the Board as a Technology Coordinator since 2008. Pl.'s Resp. DSOF ¶ 7. In 2011, he began working in that role at Norman A. Bridge School, where the pertinent events took place. DSOF ¶¶ 7-8; Pl.'s Resp. DSOF ¶ 7. The Bridge School consists oftwo campuses (a junior high school and an elementary school) and serves students from pre-kindergarten through the eighth grade. DSOF ¶ 9. Its principal, Christopher Brake, manages the School's operations and supervises the Board employees staffed at the School. Id. ¶¶ 10-11.
In August 2011, Brake hired Mashni to oversee the School's technological equipment and assist staff with technology-related issues. DSOF ¶ 11. Mashni's responsibilities extended to both campuses—he had an office at both the elementary school and the junior high and worked at both locations on a daily basis. Id. ¶ 15.
At first, Mashni worked well under Brake, receiving good reviews for his performance. PSOF ¶ 1; 11. But their relationship started to sour in the summer of 2014, when Mashni began experiencing the symptoms of what was later diagnosed as generalized anxiety disorder. Id. ¶¶ 11-12. Although Mashni believes that he has suffered from anxiety for his entire life, the condition did not become...
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