Straub v. Jewel Foods

• Decision Date: 20 April 2020
• Docket Number: Case No. 1:17-cv-6401
• Parties: PRESTON STRAUB, Plaintiff, v. JEWEL FOODS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

PRESTON STRAUB, Plaintiff, v. JEWEL FOODS, Defendant.

Case No. 1:17-cv-6401

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

April 20, 2020

Hon. Steven C. Seeger

MEMORANDUM OPINION AND ORDER

An employee of a grocery store got into a shoving match with another employee in the produce section. Both men were in their 60s. And both were fired.

One of the participants in the scrap, Preston Straub, later sued his former employer, Jewel Foods. He claims that Jewel terminated him because of his age, not because of the fight. He also claims that his managers harassed him for years because of his age, pointing to other examples when store managers made comments about how old he was.

Jewel now moves for summary judgment, arguing that it fired Straub because of the scuffle, and that there is no evidence of age discrimination. For the reasons described below, Jewel's motion is granted.

Non-Compliance With Local Rules

At the outset, the Court notes that Straub - a pro se litigant - did not comply with the Local Rules about how to present and respond to facts. By and large, Straub did not respond to Jewel's Statement of Facts by offering admissible evidence of his own. On the flipside, Straub's Statement of Additional Facts did not comply with the Local Rules. He made a number of generalized statements, and largely failed to support his statements with admissible evidence.

Jewel submitted a Statement of Facts in compliance with Local Rule 56.1(a). See Jewel Local Rule 56.1 Statement of Undisputed Material Facts ("Jewel Statement of Facts") (Dckt. No. 89). Jewel set out its facts in short numbered paragraphs, and supported each statement with declarations, deposition testimony, and other material in the record. Id.

In response, Straub followed the Local Rules in part. He filed "a concise response" to each of Jewel's paragraphs. See Local Rule 56.1(b)(3)(B); see also Straub Response to Jewel 56.1 Statement of Facts ("Straub Resp.") (Dckt. No. 103). But all too often, Straub failed to support his "disagreement[s]" with evidence of his own. See Local Rule 56.1(b)(3)(B) (requiring the non-moving party to provide "references to the affidavits, parts of the record, and other supporting materials relied upon"); see also Straub Resp., at ¶¶ 1-24, 26, 28-55 (Dckt. No. 103). Straub often stated that he "disagrees with" certain facts, without more. See Straub Resp., at ¶¶ 6-7, 13, 16, 20, 24-25, 42 (Dckt. No. 103). Straub also said that he "has no way to confirm" or "has no knowledge" of other facts submitted by Jewel. Id. at ¶¶ 14-15, 17-19, 28, 43-53.

At other times, Straub made blanket statements without offering any admissible evidence (such as an affidavit, or deposition testimony). For example, in response to paragraph 6 of Jewel's Statement of Facts, Straub recounted a story about a bakery department employee in her 70s who was demoted. See Straub Resp., at ¶ 6 (Dckt. No. 103). But he offered no evidence. Id. An unsworn retelling of the story by Straub does not count. In response to paragraphs 8 and 12, Straub stated that Jewel "selectively uses [its] policy" against violence and "selectively enforces the Employee Policy Handbook." Id. at ¶¶ 8, 12. Again, just bare statements, unadorned with evidence.

A statement of disagreement or a lack of knowledge, without more, does not create a disputed question of fact. See Fed. R. Civ. P. 56(c); see also Local Rule 56.1(b)(3). Summary judgment is the time for evidence, not allegations. All too often, Straub presented no evidence on his side of the ledger. There was nothing to weigh against Jewel's evidence.

Straub also filed a Statement of Additional Facts that halfway complied with the Local Rules. His Statement did include numbered paragraphs. See Local Rule 56.1(b)(3)(C); see also Straub Statement of Additional Facts (Dckt. No. 105). But again, Straub often failed to include any "references to the affidavits, parts of the record, and other supporting materials relied upon" to support his factual assertions. See Local Rule 56.1(b)(3)(C); see also Straub Statement of Additional Facts, at ¶¶ 2, 4, 6-13, 15-16, 18-24 (Dckt. No. 105). The Court cannot consider unsupported assertions at summary judgment. See Fed. R. Civ. P. 56(c)(1).

For example, in paragraph 8, Straub stated that a customer told him that "you were attacked" by the other Jewel employee in the produce section. See Straub Statement of Additional Facts, at ¶ 8 (Dckt. No. 105). But he offered no evidence. Id. In paragraphs 22 and 23, Straub stated that a "young black male (MAX)" was "involved in a fight and never fired," and so was Jewel Store Director Jim Fanella. Id. at ¶¶ 22-23. But again, nothing. Id.

Straub's statements about other discriminatory acts against him illustrate the problem. In an attachment to his complaint, Straub gave examples of times when Jewel allegedly discriminated against him, such as a demotion to an undesirable job. See Am. Cplt., at 9 of 25 (Dckt. No. 38). But in his Statement of Additional Facts, Straub didn't offer specific facts about those incidents. Instead, he lumped them all together. He made broad-sweeping statements such as "Straub was the recipient of ongoing and continual indignant and harassing treatment." See Straub Statement of Additional Facts, at ¶ 3 (Dckt. No. 105) (citing Straub Exhibit 2); see alsoid. at ¶ 25 ("Straub's Exhibit 7 shows he was discriminated over younger employees. Teenagers with much less seniority were given preference of vacation time over Straub."); id. at ¶ 26 ("Straub's Exhibit 6 and 8 shows [sic] he was discriminated against continually and no 300 day limit is applicable.").

To compound the problem, Straub in large part failed to support those general statements with admissible evidence. He cited as support his own (unsworn) statements or letters. For example, his Exhibit 2 is a "Statement of Incidents for Jewel Foods by Preston Straub" dated August 10, 2015. See Straub Appendix of Exhibits in Opposition to Motion for Summary Judgment ("Straub App. Exs."), at 5-6 of 24 (Dckt. No. 106). The document is an unsworn summary of complaints that he made to Jewel about alleged harassment.

Those paragraphs did not comply with Local Rule 56.1, and the supporting evidence is inadmissible hearsay. But then again, Jewel did not object to Straub's Exhibit 2 - or several other exhibits - on admissibility grounds. See Straub App. Exs., at 3 of 24 (Dckt. No. 106) (Jewel Candidate Evaluation Form of Preston Straub, dated June 18, 2001); id. at 5-6 of 24 ("Statement of Incidents for Jewel Foods by Preston Straub," dated August 10, 2015); id. at 8 of 24 (Jewel Associate Corrective Action Review of Preston Straub, dated April 27, 2009); id. at 14 of 24 (LOCAL 881 UFCW Grievance Investigation Report for Member Preston P. Straub, dated March 3, 2016); id. at 18-19 of 24 (Letter from Preston P. Straub to Cathy Howe, 881 UFCW, dated January 18, 2019); see also Jewel Response to Straub Statement of Additional Facts ("Jewel Resp."), at ¶¶ 1, 3, 5, 14, 26 (Dckt. No. 111).

The Seventh Circuit "has consistently upheld district judges' discretion to require strict compliance with Local Rule 56.1." Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015) (collecting cases); see also Boss v. Castro, 816 F.3d 910, 914 (7th Cir. 2016) (same, collectingcases); Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) ("Because of the high volume of summary judgment motions and the benefits of clear presentation of relevant evidence and law, we have repeatedly held that district judges are entitled to insist on strict compliance with local rules designed to promote the clarity of summary judgment filings."); Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 360 (7th Cir. 2009) (same). The Local Rules apply equally to pro se litigants like Straub. See Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 F. App'x 642, 643 (7th Cir. 2011) ("Though courts are solicitous of pro se litigants, they may nonetheless require strict compliance with local rules."); Wilson v. Kautex, Inc., 371 F. App'x 663, 664 (7th Cir. 2010) (citations omitted); see also McNeil v. United States, 508 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.").

As a result, this Court could consider all of Jewel's facts to be true, and deem them admitted, except for the limited instances when Straub responded in compliance with the Local Rules. See Local Rule 56.1(b)(3)(C) ("All material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party."); Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 411 (7th Cir. 2019) ("The [district] court addressed at the outset VitalGo's noncompliance with Local Rule 56.1. According to well-established Seventh Circuit law, that noncompliance meant that the district court could exercise its discretion to accept Kreg's statements of fact as undisputed."); Olivet Baptist Church v. Church Mut. Ins. Co., 672 F. App'x 607, 607 (7th Cir. 2017); Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218-19 (7th Cir. 2015) (citation omitted); Keeton v. Morningstar, Inc., 667 F.3d 877, 880, 884 (7th Cir. 2012); Parra v. Neal, 614 F.3d 635, 636 (7th Cir. 2010); Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 393 (7th Cir. 2009).

Similarly, this Court could disregard Straub's Statement of Additional Facts, except where he complied with Local Rule 56.1(b)(3)(C). See Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 711 (7th Cir. 2015) ("[The plaintiff's] efforts cannot be considered compliant, let alone strictly compliant, with the requirements of [Local] Rule 56.1. . . . Accordingly, the district court did not abuse its discretion in disregarding the facts contained in [the Local Rule 56.1(b)(3)(C)] statement of additional facts that were not...