Nehan v. Tootsie Roll Indus., Inc.
| Decision Date | 23 July 2014 |
| Docket Number | No. 11 C 646,11 C 646 |
| Citation | 54 F.Supp.3d 957 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | Beugre S. Nehan, Plaintiff, v. Tootsie Roll Industries, Inc., Defendant. |
H. Yvonne Coleman, Lanre O. Amu, Law Office of H. Yvonne Coleman, P.C., Chicago, IL, for Plaintiff.
Tracy Marie Billows, Abigail Deirdre Flynn–Kozara, Sheldon Leigh Jeter, Seyfarth Shaw LLP, Chicago, IL, for Defendant.
The plaintiff, Beugre S. Nehan, alleges that his employer, Tootsie Roll Industries, Inc. (“Tootsie Roll”), discriminated against him on the basis of his race, national origin, and disability, and retaliated against him for having engaged in protected conduct. Tootsie Roll now moves for summary judgment on all counts. For the following reasons, the motion is granted.
As an initial matter, Tootsie Roll requests that the Court strike from the record an enumerated list of Nehan's responses to its Local Rule 56.1 Statement and certain entries in his Supplemental Statement of Undisputed Facts. Tootsie Roll complains that Nehan does not cite specific paragraphs of his affidavit in his Supplemental Statement and argues that the denials that are based solely on his opinions, speculation, and legal argument should be stricken. Local Rule 56.1(b)(3) requires the party opposing summary judgment, when disputing a fact, to include “specific references to the affidavits, parts of the records, and other supporting materials relied upon,” and a separate and additional statement for “any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.” 56.1(b)(3)(B), (C). It is the usual practice of courts to disregard improperly supported denials and fact statements, as well as immaterial assertions. See Cady v. Sheahan, 467 F.3d 1057, 1060–61 (7th Cir.2006) (); Ammons v. Arama r k Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004) (); Payne v. Pauley , 337 F.3d 767, 773 (7th Cir.2003) (). The Court has followed these practices here. To the extent that Nehan fails to effectively dispute facts properly set forth and supported by Tootsie Roll, those facts are deemed admitted for the purposes of this motion. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir.2009) (citing Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) ). Finally, because a Rule 56.1(b)(3) response is not the place for a party to assert additional facts, see Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643–44 (7th Cir.2008) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir.1995) ), such extraneous assertions in Nehan's response to Tootsie Roll's statement are disregarded here. The factual background is accordingly taken from the parties' Local Rule 56.1 Statements to the extent that they are material, properly supported, and do not violate the local rules.
Tootsie Roll also requests that the Court strike from the record two affidavits submitted by Nehan, the first being his own. Tootsie Roll argues that Nehan's affidavit includes only his own speculative beliefs about matters on which he is not qualified to testify and that it conflicts with his earlier deposition testimony. The Seventh Circuit “ha[s] been highly critical of efforts to patch up a party's deposition with his own subsequent affidavit.”Russell v. Acme–Evans Co., 51 F.3d 64, 67 (7th Cir.1995). Where deposition testimony and an affidavit conflict, the affidavit is to be disregarded “unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.” Id. at 67–68 ; see also United States v. Funds in Amount of One Hundred Thousand One Hundred and Twenty Dollars, 730 F.3d 711, 718 (7th Cir.2013) (). Nehan makes clear in his deposition that he was permitted to use a forklift after June 4, 2010. See, e.g., Dep. 268:23–269:1 (); Dep. 318:20–319:3 ( ). Likewise, Nehan clearly stated in his deposition that Ed Weber, a warehouse and distribution manager at Tootsie Roll, told him that he did not have to use a forklift when he came to work. In his affidavit, however, Nehan states that Pl.'s Aff. ¶ 3, Dkt. 59–1. Nehan attempts to explain the inconsistency by adverting to the fact that English is his second language, asserting in his affidavit that “[s]ometimes when I express myself and communicate, my phrasing and choice of words is different than what I mean to say.” That English is Nehan's second language, however, fails to account for the problem, for at least three reasons. First, Nehan repeated his testimony that Weber told him he did not “have to” use the forklift several times throughout the deposition, e.g., 19:17–19; 268:18–19, suggesting that his phrasing was not simply an isolated misstatement. Second, Nehan mischaracterizes the statement in his affidavit; he testified in his deposition that Weber told him that if he was told to go pick (i.e., to pick cases of candy to be assembled on a pallet for shipping, see infra at 5), “you don't have to pick [with a] forklift,” and in the context of picking a pallet, a task that requires the candy to be placed on the pallet by hand, the comment makes perfect sense. See also Nehan Dep. Ex. 14 (). Most significant, Nehan's contention that he meant to say that Weber told him he could no longer use forklifts at all is contrary to his multiple acknowledgements during his deposition that he used a forklift after June 4, 2010—acknowledgments that cannot be explained away as the result of poor phrasing on Nehan's part. Accordingly, the portions of Nehan's affidavit and statements of fact that rely on his claim that Weber told him he could no longer use a forklift are stricken and disregarded here.
Tootsie Roll also argues that the affidavit of Nehan's former coworker, Hi–Lo Operator Byron Rush, should be stricken because no foundation exists for certain of his allegations, his allegations are conclusory, and some of his allegations are irrelevant. Federal Rule of Civil Procedure 56(c)(4) requires affidavits used to support or oppose a motion for summary judgment to “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” “Although ‘personal knowledge’ may include inferences and opinions, those inferences must be substantiated by specific facts.” Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878, 887 (7th Cir.1998) (citation omitted). In his affidavit, Rush claims that forklifts are available to workers on a first-come, first-served basis and that “[w]hoever arrives first is entitled to use the forklift.” PL's Ex. I, Dkt. 59–4. While Rush also works as a Hi–Lo Operator and so would have observed how forklifts are used at Tootsie Roll, he does not identify the foundation for his claim that the first worker is “entitled,” as though by policy, to use a forklift. Tootsie Roll's motion to strike is therefore granted as to this portion of the affidavit. Rush's other assertions are irrelevant to the determinative issues here, therefore it is unnecessary to further consider this request to strike.
Tootsie Roll is a confectionary company that manufactures and distributes candy, including Tootsie Rolls, Junior Mints, Fluffy Stuff, and Dubble Bubble bubble gum. Nehan, an African American who immigrated to the United States from the Ivory Coast, was employed at Tootsie Roll's Chicago, Illinois, plant from June 18, 2002, to August 18, 2010 (though he was laid off for some portions of this tenure). Nehan was initially hired as a Laborer. Throughout his employment, he worked in different departments. At the time of his discharge, Nehan was working as a Hi–Lo Shipping and Receiving Operator in Tootsie Roll's shipping and receiving department, a position that Nehan asserts is interchangeably called a “forklift driver.”
In his role as a Hi–Lo Shipping and Receiving Operator, Nehan moved products from one location to another, loaded trucks by forklift or by hand, and “picked” cases of candy to create pallets for shipping. Picking cases involves logging into a computer and selecting what the computer indicates should be included in the case. Tootsie Roll expects employees to use a motorized pallet jack, known as a “walkie,” when picking cases. Employees stand on the walkies and maneuver them between pallets. Walkies are lower to the ground and smaller than forklifts. If no walkies are available, employees may use forklifts. When using a...
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