Malik v. Falcon Holdings, LLC
Filing
54
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 12/29/2011:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TARIQ MALIK,
Case No. 10 C 3451
Plaintiff,
v.
Hon. Harry D. Leinenweber
FALCON HOLDINGS, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Falcon Holdings, LLC (hereinafter, “Falcon”) moves
for summary judgment in this employment discrimination case brought
by former employee Tariq Malik (hereinafter, “Malik”).
The sole
issue on which Defendant claims it is entitled to summary judgment
is its contention that Malik has not presented any evidence of
damages, which is essential to his claim for age discrimination.
For the reasons stated, the Court denies the motion.
I.
The
following
facts
BACKGROUND
are
taken
from
the
parties’
Local
Rule 56.1 statements, deposition testimony, and exhibits, with
disputes noted as they occur.
Because the specifics of Malik’s
discrimination claims are largely irrelevant to the present motion,
the Court will only briefly summarize them.
Malik brought this suit under the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq., against Falcon, a Delaware
corporation doing business in the Northern District of Illinois.
He first began working for Falcon in December 1999. His employment
was terminated in 2001, but he subsequently rejoined the company in
March 2005.
In October 2009, at age 52, Malik was fired.
He
contends that the company’s CEO Aslam Khan (“Khan”), frequently
denigrated him during meetings, and told other executives that
Malik was “too old.”
He also contends that when company president
Khaled Habash (“Habash”) fired him, Habash told him he was too old
for the job.
Falcon denies these allegations.
After his firing,
Malik tried to work for a start up venture that failed, and
unsuccessfully sought other employment.
Malik’s Complaint alleges that he suffered emotional and
physical
distress,
mental
and
physical
anguish,
and
loss
of
reputation, humiliation, and embarrassment as a result of his
firing.
(Malik now agrees, however, that he is not entitled to
damages for emotional distress under the ADEA.) The Complaint also
alleges that Malik suffered lost earnings and benefits, and an
impairment of his ability to work in the future.
Apparently,
although
the
parties
agreed
to
make
initial
disclosures under Rule 26(a) by September 31, 2010, neither did so.
In an interrogatory, Falcon asked Malik to “describe in detail and
categorize all damages or injuries you claim to have sustained as
a result of any discriminatory action or conduct by Falcon, Khan,
or any other employee or agent of Falcon as described in the
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Complaint.”
(“Interrogatory No. 14”)
In response, Malik replied,
“Malik has suffered loss of income and emotional distress, mental
anguish, humiliation
and
loss
of
self-esteem as
a
result
of
discriminatory conduct alleged in My Complaint.”
In another interrogatory, Falcon inquired as to whether Malik
had received any medical or psychiatric treatment as a result of
the
alleged
discrimination
(“Interrogatory
No.
15”).
Malik
responded that he had not.
During his deposition, Falcon’s counsel asked Malik whether he
had given complete and full answers to these interrogatories, as
well as others.
He said he had.
II.
LEGAL STANDARD
Summary judgment is appropriate where the record shows that
there is no genuine dispute as to an issue of material fact.
R. CIV. P. 56(a).
FED .
A fact is material if it could affect the outcome
of the suit under the governing law, and a dispute is genuine where
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
In ruling on summary judgment, the Court does not weigh the
evidence or determine the truth of the matter, but determines
whether a genuine issue of material fact exists that warrants
trial.
Id. at 249.
In addressing a motion for summary judgment,
the court must review the record in the light most favorable to the
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non-moving party and draw all reasonable inferences in that party’s
favor.
Vanasco v. National-Louis Univ., 137 F.3d 962, 965 (7th
Cir. 1998).
A genuine issue of fact, however, is not shown by
“some metaphysical doubt as to the material facts.”
Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986).
The moving party bears the burden of establishing the basis
for its motion, together with evidence demonstrating the absence of
any genuine issue of material fact.
U.S. 317, 323 (1986).
Celotex Corp. v. Catrett, 477
Once the moving party has met its burden,
the nonmoving party may not rest on mere allegations, but must
present specific facts showing that a genuine issue exists for
trial.
Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160,
163 (7th Cir. 1984).
To support their positions that a genuine
issue of material fact does or does not exist, the parties may cite
to materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations, admissions, and interrogatory answers, or show that
the materials in the record do or do not establish a genuine
dispute.
FED. R. CIV. P. 56(c).
III.
ANALYSIS
As a preliminary matter, Falcon asks this Court to disregard
Malik’s response to its summary judgment motion because he filed it
a week late and without leave of the Court.
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However, given that
Falcon had an opportunity to reply to this response, the Court will
consider it.
Edmonds v. Operating Eng’r Local 139,
620 F.Supp.2d
966, 968 (W.D. Wis. 2009).
Falcon also moves to strike Paragraphs 11–14 of Malik’s
Counter Statement of Material Facts. In Paragraph 11, Malik stated
that he reaffirmed his interrogatory answers during his deposition
testimony.
In Paragraph 12, he pointed to his tax returns from
2005 until his termination in 2009 as forming the basis for his
calculation of damages.
In Paragraph 13, he stated that he was
competent to testify regarding his wage loss, and pointed to an
affidavit in which he said his income from Falcon Holdings from
2005 through 2009 was the basis for his damages.
Paragraph
14,
Malik
stated
that
although
Finally, in
neither
party
has
explicitly exchanged information under Rule 26, he provided the
information required to be exchanged under it.
Falcon takes issue with Paragraph 11 because Malik does not
point to where in the deposition he reaffirmed his interrogatory
answers.
Although Malik failed to give a citation to the record,
there is no dispute that he reaffirmed these answers.
See Malik
Dep.
basis
8:24–9:13.
In
fact,
this
forms
part
of
the
of
Defendant’s Summary Judgment Motion, so Paragraph 11 will not be
stricken.
Similarly, and more problematic, in Paragraph 14 Malik does
not provide record support for his assertion that although neither
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party
exchanged
Rule
26(a)
disclosures,
information required by this rule.
he
did
supply
the
In fact, it appears to the
Court that Malik did not provide a computation of his damages until
filing
his
response
to
this
motion,
so
the
Court
strikes
Paragraph 14.
Essentially, the basis for the remainder of Falcon’s Motion to
Strike is that because Malik offers this information for the first
time with his response brief, the Court cannot consider Malik’s
affidavit or his tax returns.
Because the question of whether
to
strike these paragraphs is bound up with the question of whether to
grant Falcon’s summary judgment motion, the Court will consider
them together.
In his affidavit, Malik provides his annual income from Falcon
from 2005 until the date of his firing in 2009.
amounts listed on his tax returns.
These are the same
Malik plans to testify that had
he not been terminated, his annual income would have been $122,852,
based on his 2009 salary prior to his termination.
He uses this
figure as the basis for this claim for both back and front pay.
Rule 26 requires that, as party of his initial disclosures, a
party claiming damages must give the opposing party:
a computation of each category of damages claimed by the
disclosing party — who must also make available for
inspection and copying as under Rule 34 the documents or
other evidentiary material, unless privileged or
protected from disclosure, on which each computation is
based, including materials bearing on the nature and
extent of injuries suffered. . . .
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FED. R. 26(a)(1)(A)(iii).
If a party fails to so disclose, the
party may not use that information to supply evidence on a motion,
or at trial, unless the failure was substantially justified or
harmless.
FED. R. CIV. P. 37(c)(1); see Dynegy Mktg. and Trade v.
Multiut Corp.,
failure
to
648 F.3d 506, 514 (7th Cir. 2011).
comply
warrants
sanctions
is
“left
to
Whether a
the
broad
discretion of the district court.” Dynegy Mktg., 648 F.3d at 514.
The relevant factors to consider include:
(1) the prejudice or
surprise to the opposing party; (2) the ability of the offending
party to cure the prejudice; (3) the likelihood of disruption at
trial; and (4) whether the failure to disclose involved bad faith
or willfulness. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th
Cir. 2003).
In arguing that Malik should not be able to present evidence
of his wages, Falcon relies in part on Dunkin’ Donuts, Inc. v.
N.A.S.T. Inc., 428 F.Supp.2d. 761, 771 (N.D. Ill. 2005), in which
the court found that a franchisor was entitled to summary judgment
on a claim brought under the Illinois Franchise Disclosure Act
because the franchisee had failed to provide any competent and
admissible evidence of damages.
In Dunkin’ Donuts, the franchisee
claimed losses due to his inability to sell and remodel his
franchises.
Id.
But while the franchisee claimed he suffered
losses in excess of $2 million, he made no attempt to allocate
those
damages
or
provide
documentary
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support
as
to
that
computation.
Id. at 769.
Nor did he provide documentary support
as to his claimed damages.
Id.
When asked about his damages at his deposition, the franchisee
“did his level best to avoid answering,” and offered only vague
estimates.
Id. at 770.
At summary judgment, the franchisee
offered an affidavit and financial documents purportedly showing
his
damages,
but
the
court
rejected
them
because
of
the
franchisee’s failure to make the required initial disclosures. Id.
at 770–71.
However, this case has some important differences from Dunkin’
Donuts and the other authority upon which Falcon relies. The Court
notes that during Malik’s deposition, counsel for Falcon had ample
opportunity to ask Malik about the basis for his damages, but did
not do so.
Instead, he merely asked him if his interrogatory
answers were “full and complete,” and whether he had omitted any
information.
Malik responded that his answers were complete, and
Falcon’s counsel did not further question him about his damages.
Nor did Falcon’s counsel raise with this Court Defendant’s
belief that Malik’s interrogatory response in regard to his damages
was insufficient.
Rather, it appears, Falcon preferred to “save”
this issue for summary judgment in the hopes of prevailing in what
otherwise appears to be a case fraught with disputed issues of
material fact.
Further, this is not a case like Dunkin’ Donuts in
which damages are speculative. If Malik was wrongfully terminated,
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he certainly suffered damages, and those damages are tied to his
wages.
Cf. Woltman v. Am. States Ins. Co., No. 05–2198, 2006 WL
3004009, at *3 (C.D. Ill. Oct. 20, 2006) (allowing breach of
contract claim to go forward without expert testimony as to damages
because damages were within the plaintiff’s personal knowledge).
Frustratingly, Malik’s response in support of his motion for
summary judgment does not address the issue at hand, namely why he
did not disclose the basis for his damage computations earlier, and
whether Rule 37 requires this Court to disregard them.
Instead,
Malik unhelpfully recounts the various types of damages available
in an employment discrimination case and argues that he is not
required to prove damages “with mathematical precision.”
This is
true, but is not the real issue here.
Nonetheless, it appears that Malik’s damages claims are based
entirely on his salary while employed with Falcon, and the company
clearly knows, and knew from the start of this case, how much it
paid Malik.
So it is difficult to see how allowing Malik to
present evidence as to his lost wages harms Falcon.
Falcon claims
that it has had no opportunity to rebut or probe Malik’s theories
or offer its own theories. However, the theories upon which Falcon
claims damages — back pay, front pay, and liquidated damages for
willful conduct — are not surprising in this type of case.
Nor
does Falcon explain what it would have done differently had Malik
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disclosed his wage data sooner.
Because the Court cannot see how
Falcon will be prejudiced, it cannot prevail on its motions.
IV.
CONCLUSION
For the reasons stated herein, Defendant Falcon’s Motion for
Summary Judgment
[29]
is denied.
Falcon’s Motion
to
Strike
Portions of Plaintiff’s Response to Defendant’s Motion for Summary
Judgment [43] is granted in part and denied in part.
Paragraph 14
of Malik’s Counter Statement of Material Facts is stricken.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE: 12/29/2011
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