Phillips v. Quality Terminal Servs., LLC

• Decision Date: 29 February 2012
• Docket Number: Case No. 08–cv–6633.
• Citation: 855 F.Supp.2d 764
• Parties: Wendell PHILLIPS, Plaintiff, v. QUALITY TERMINAL SERVICES, LLC, d/b/a Quality Terminal Services, Inc., a Colorado limited liability company, Burlington Northern Santa Fe Railway Company, a Delaware corporation, and Psychemedics Corporation, a Delaware corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

855 F.Supp.2d 764

Wendell PHILLIPS, Plaintiff,

v.QUALITY TERMINAL SERVICES, LLC, d/b/a Quality Terminal Services, Inc., a Colorado limited liability company, Burlington Northern Santa Fe Railway Company, a Delaware corporation, and Psychemedics Corporation, a Delaware corporation, Defendants.

Case No. 08–cv–6633.

United States District Court,

N.D. Illinois,

Eastern Division.

Feb. 29, 2012.

Howard Marks, Frank T. Davenport, Matthew Francis Policastro, Berger, Newmark & Fenchel P.C., Michael Aaron Zalay, Bronson & Kahn LLC, Chicago, IL, for Plaintiff.

James A. Fletcher, Jeremy M. Berman, Ronald A. Lane, Elizabeth O. Bryant, Fletcher & Sippel LLC, Kevin William Doherty, Michael Thomas Sprengnether, Doherty & Progar, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, JR., District Judge.

Plaintiff Wendell Phillips (“Plaintiff”) filed a seven-count amended complaint [25] against Defendants Quality Terminal Services, LLC (“QTS”), BNSF Railway Company (“BNSF”) ¹, and Psychemedics Corporation (“Psychemedics”) on March 27, 2009. The Court has jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332. All of Plaintiff's claims arise out of a 2008 drug test, which resulted in Plaintiff being barred from a BNSF facility operated by QTS and effectively ended Plaintiff's employment with QTS. The Court granted BNSF's motion to dismiss as to some of the counts, but Plaintiff's claims against BNSF for defamation (Count V) and tortious interference with a prospective economic advantage (Count VI) survived. Plaintiff also brought the following claims against QTS, all of which remain pending: violation of due process pursuant to 42 U.S.C. § 1983 (Count I); QTS's liability for the negligence of Psychemedics (Count II); negligence by QTS (Count III); and intentional or reckless infliction of emotional distress (Count VII).

Defendant BNSF has moved for summary judgment [133] on all remaining claims, and Defendant QTS also has moved, in two separate motions [127 & 132], for summary judgment on all claims asserted against it. Defendant BNSF also moved to strike [152] Plaintiff's response to BNSF's Local Rule 56.1 statement of facts for failure to comply with Local Rule 56.1. For the reasons stated below, the Court grants BNSF's motion to strike [152] but allows Plaintiff to submit amended responses (already on file) to BNSF's statements of fact consistent with the Court's discussion below. The Court also grants the summary judgment motions [127, 132, & 152] filed by BNSF and QTS.

I. BackgroundA. BNSF's Motion to Strike Plaintiff's Local Rule 56.1 Statement of Facts

Plaintiff filed a Local Rule 56.1(b) Statement of Material Facts in Opposition to BNSF's Motion for Summary Judgment, which included both supplemental facts and Plaintiff's response to BNSF's Local Rule 56.1(a) Statement of Material Facts (“the Response to BNSF's SOF”). In the Response to BNSF's SOF, Plaintiff provided written objections or challenges to twenty-six of BNSF's statements. However, as pointed out by Defendant in its motion to strike, almost every one of Plaintiff's objections or challenges fails to either admit or deny the fact or to provide any citations to evidence that raises a genuine issue of material fact as to BNSF's statement. BNSF asks the Court to strike the Response to BNSF's SOF in its entirety. See Cady v. Sheahan, 467 F.3d 1057, 1060–61 (7th Cir.2006) (affirming summary judgment where trial judge relied solely on defendant's statement of facts because plaintiff violated Local Rule 56.1); Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 527–28 (7th Cir.2000) (striking a statement of facts in its entirety because Local Rule 12(N), which is now Local Rule 56.1(b), was violated).

When analyzing Local Rule 56.1(b) statements, courts are not required to “wade through improper denials and legal argument in search of a genuinely disputed fact.” Bordelon, 233 F.3d at 529. Rather, fact statements are designed to “assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose [s] to prove a disputed fact with admissible evidence.” Id. at 527 (citation omitted). “Opinion, suggested inferences, legal arguments and conclusions are not the proper subject matter of a [Local Rule 56.1] statement. Including legal arguments in a [56.1] statement is wholly improper, redundant, unpersuasive and irksome; in short, it advances neither the interests of the parties nor of th[e] court.” Servin v. GATX Logistics, Inc., 187 F.R.D. 561, 562 (N.D.Ill.1999) (citation omitted). Malec v. Sanford, 191 F.R.D. 581, 584 (N.D.Ill.2000) (legal argument is improper within a Local Rule 56.1 statement of facts); Judson Atkinson Candies, Inc. v. Latini–Hohberger, 476 F.Supp.2d 913, 922 (N.D.Ill.2007) (legal argument is improper within a Local Rule 56.1 statement of facts). In response to Defendant's motion to strike, Plaintiff submitted his response to BNSF's motion to strike and a request that the Court allow him to file amended Local Rule 56.1(b)(3)(B) and (b)(3)(C) statements.

It is the function of the Court, with or without a motion to strike, to review carefully statements of material facts and to eliminate from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement. See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, at *2 n. 2 (N.D.Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D.Ill. Sept. 29, 2004); Rosado v. Taylor, 324 F.Supp.2d 917, 920 n. 1 (N.D.Ind.2004). The Court's scrutiny of material statements of facts applies equally to the party seeking summary judgment and the party opposing it.

Where a party offers a legal conclusion or statement of fact without proper evidentiary support, the Court will not consider that statement. Malec v. Sanford, 191 F.R.D. at 583. In the present cases, both parties at times have offered legal conclusions in their statements of fact. Those conclusions will not be accepted by the Court as “facts.” In addition, where a party improperly denies a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems that statement of fact to be admitted. Thus, any statements or responses that contain legal conclusions or argument, are evasive, contain hearsay or are not based on personal knowledge, are irrelevant, or are not supported by evidence in the record will not be considered by the Court in ruling on the summary judgment motions.

With these principles in mind, the Court grants Defendant's motion to strike, but allows Plaintiff to submit amended responses to Defendant's statements of fact, which will be considered by the Court in ruling on the motions for summary judgment. However, to the extent that Plaintiff attempts to introduce new, supplemental facts not previously raised in Plaintiff's original statement of facts, the Court will not consider those new facts in ruling on the motions for summary judgment. Plaintiff had all the facts available to him at the time that he filed his response to BNSF's motion for summary judgment. The Court will allow him to amend the technical defects in his responses—the glaring ones being his failure to admit or deny BNSF's statements and his failure to cite record evidence in support of certain denials—but the Court will not allow him to inject supplemental facts into the record after the motions have been fully briefed.

B. Facts

BNSF, a Delaware corporation with its corporate headquarters located in Fort Worth, Texas, is a rail carrier which operates throughout parts of the United States including in Cicero, Illinois, where it owns an intermodal facility that was operated by QTS in 2008. Quality Terminal Services, LLC (“QTS”), a Colorado limited liability company with corporate headquarters located in Denver, Colorado, was contracted by BNSF to operate BNSF's intermodal facility in Cicero, Illinois, and did so through December 31, 2008. QTS provides, among other things, “lift services” to railroads at intermodal yards. Lift services consist of operating cranes or similar equipment to lift highway trailers or shipping containers on and off of railroad flatcars for long distance movement over railroads. The service includes driving the trailers and containers within the yard between the parking area and the tracks where they are loaded and unloaded. This driving operation is called “hostling.”

In May 2000, Plaintiff Wendell Phillips was hired by QTS to work at QTS's intermodal facility operations located in Cicero, Illinois (“the Cicero facility”). Plaintiff worked as a spotter, hostler driver, hitch inspector, and securement verifier at QTS. During his employment with QTS, Plaintiff was a member of Union Local 705, which had a collective bargaining agreement with QTS. In the spring of 2008, Plaintiff learned that BNSF would be taking over QTS's operations at the Cicero facility in 2009.² BNSF, which was aware of the collective bargaining agreement between QTS and Union Local 705, invited the QTS employees to apply with BNSF for the positions that were going to be vacated by QTS in 2009. On June 25, 2008, Plaintiff applied to be an intermodal equipment operator with BNSF. At BNSF, an intermodal equipment operator acts as a hostler, driver, hitch inspector, and/or securement verifier.

On July 23, 2008, Plaintiff attended an orientation held by BNSF. At the orientation, BNSF informed the applicants that they would be required to submit to a pre-employment drug test. Plaintiff agreed to submit to the drug test, and, during the July 23 orientation, an agent of Examination Management Services, Inc. (“EMSI”) took a hair sample from Plaintiff's head for drug testing. Phillips' donor number, used to identify his hair sample, was 325–62–9904. Plaintiff's hair sample was sent to a laboratory at Psychemedics, a...