Sklyarsky v. ABM Janitorial Servs.
| Decision Date | 20 January 2012 |
| Docket Number | No. 09 C 2774,09 C 2774 |
| Parties | YAROSLAV S. SKLYARSKY, Plaintiff, v. ABM JANITORIAL SERVICES, MIDWEST, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Plaintiff Yaroslav Sklyarsky was an employee of defendant ABM Janitorial Services, Midwest ("ABM"). Plaintiff was born in the Ukraine. Plaintiff alleges that, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000e et seq., and 42 U.S.C. §1981, defendant disciplined him because of his nationality. Plaintiff also alleges that, in violation of Title VII, the discipline was imposed in retaliation for prior complaints of discrimination. The prior complaint was made while working at the same location and under the same supervisor, but when a contractor other than defendant was plaintiff'semployer. Defendant moves for summary judgment dismissing plaintiff's entire cause of action. Although plaintiff has not filed a formal motion, he cites Fed. R. Civ. P. 56(f)(1) and contends he is entitled to summary judgment. Since defendant is entitled to summary judgment, it is unnecessary to separately address plaintiff's request for summary judgment.
On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Crawford v. Metro. Gov't of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 274 n.l (2009); Malen v. MTD Prods., Inc., 628 F.3d 296, 303 (7th Cir. 2010); Stokes v. Bd. of Educ. of City of Chicago, 599 F.3d 617, 619 (7th Cir. 2010). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements.Celotex, 477 U.S. at 324; Freundt v. Allied Tube & Conduit Corp., 2007 WL 4219417 *2 (N.D. Ill. Nov. 29, 2007); O'Brien v. Encotech Constr., 2004 WL 609798 * 1 (N.D. Ill. March 23, 2004). Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Lorillard Tobacco Co. v.A&E Oil, Inc., 503 F.3d 588, 594-95 (7th Cir. 2007); Yasak v. Ret. Bd. of Policemen's Annuity & Benefit Fund of Chicago, 357 F.3d 677, 679 (7th Cir. 2004); Lampley v. Mitcheff 2010 WL 4362826 *6 (N.D. Ind. Oct. 27, 2010). As the Seventh Circuit has summarized:
The party moving for summary judgment carries the initial burden of production to identify "those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by "'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S. Ct. 2548. Once the moving party satisfies this burden, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). "The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be 'material.'" Logan, 96 F.3d at 978. "Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute." Id. (citation omitted). In determining whether thenonmovant has identified a "material" issue of fact for trial, we are guided by the applicable substantive law; "[o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996) (citation omitted). Furthermore, a factual dispute is "genuine" for summary judgment purposes only when there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., All U.S. 242, 249, 106 S. Ct. 2505 (1986). Hence, a "metaphysical doubt" regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and "the nonmovant fails to demonstrate a genuine issue for trial 'where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party . . . ."' Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986)).
Plaintiff filed this action pro se. He was permitted to proceed in forma pauperis, though required to pay a partial filing fee. After defendant answered the pro se Amended Complaint, counsel was appointed to represent plaintiff. A strong factor in deciding to appoint counsel was the fact that English is plaintiff's second language and he has some problems speaking and writing English. Plaintiff presently states that he has more problem speaking English than reading and writing. Neither appointed counsel further amended the Complaint. Plaintiffand his first appointed counsel both requested that counsel be granted leave to withdraw because of irreconcilable differences. Plaintiff and his second appointed counsel also could not get along, but counsel remained in the case through the completion of discovery. Counsel also assisted plaintiff in filing plaintiff's response to summary judgment, though plaintiff apparently maintained control over the final editing. Upon both plaintiff's and his counsel's request, the second appointed counsel was granted leave to withdraw and the court declined to appoint further counsel. Plaintiff filed two pro se supplemental responses regarding summary judgment. Since plaintiff was still represented by counsel both when defendant's summary judgment motion was filed and when plaintiff filed his primary response, the notice requirement for pro se litigants contained in Local Rule 56.2 and Timms v. Frank, 953 F.2d 281, 284-85 (7th Cir. 1992), does not apply. Even if it did, plaintiff apparently was aware of summary judgment procedures and those procedures are also discussed in defendant's motion to strike, which plaintiff responded to. Even if plaintiff should have received further notice, he was not prejudiced. See Timms, 953 F. 2d at 286; McLean v. Fed. Bureau of Prisons, 2010 WL 3328038 *1 (S.D. Ind. Aug. 23, 2010).
Plaintiff has again moved for the appointment of counsel. Plaintiff states in part: "I need to have the Counsel because my English language, especially verbal communication, is not good enough for court house proceeding that creates big difficulties for all parties of the lawsuit including the Honorable Judge and big possibilities for erroneous resolving the case due to misunderstanding upon court hearing." While that is a factor to consider, plaintiff's previous failures to cooperate with appointed counsel is also a factor. After plaintiff could not get along with one attorney, he was warned that he would have to cooperate with the next attorney because there would not be a third chance. Plaintiff also could not get along with the second attorney. There is nothing to support that both attorneys were at fault for the irreconcilable differences. Moreover, at this point the court has had an opportunity to see the available evidence in this case that was gathered through the full assistance of counsel during discovery. An attorney also tried to aid plaintiff in making his factual presentation, but plaintiff apparently believed he himself knew best how to present his case. There is no indication plaintiff would cooperate with a new attorney. For the reasons discussed below, defendant is entitled to summaryjudgment. Appointment of counsel is also denied on the ground that the case is not sufficiently meritorious to justify appointment of further counsel.
Defendant moves to strike plaintiff's Local Rule 56.1 response and statement of additional facts, as well as plaintiff's affidavit. This court has discretion as to how strictly to apply the requirements of Local Rules, including Rule 56.1. Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 409 (7th Cir. 2009); Bordelon v. Chicago Sch. Reform Ed. of Tr., 233 F.3d 524, 527 (7th Cir. 2000); Zitzka v. Vill. of Westmont, 743 F. Supp. 2d 887, 897 (N.D. Ill. 2010). This bench generally does not strictly enforce Rule 56.1 if a party, in some manageable form, asserts facts and provides citations to the record. See Morrow v. Potter, 2011 WL 663029 *2 (N.D. Ill. Feb. 10, 2011) (collecting cases). While plaintiff's presentation stretches to the limits of manageable, none of plaintiff s filings will be stricken. Defendant's contentions, though, have been considered in determining whether plaintiff has properly supported his factual contentions. Inadequately supported factual statements of plaintiff are not credited. Prior letters and position statements of plaintiff that were not submitted under oath cannot be used by plaintiff as affirmative evidence of the matters statedtherein.1 The only statements of plaintiff that are presently being considered as affirmative evidence are his deposition testimony and his affidavit that is provided as Exhibit 1 to his response. Even that evidence is limited to statements of fact based on plaintiff's personal knowledge, not his stated beliefs about events that occurred outside his presence. See Marr v. Bank of Am.,...
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