Fedorenko v. Village of Dolton

Filing 84

Memorandum Opinion and Order in 13 cv 3383 by Village of Dolton (Mitchell, Gregory) (Modified by the Clerk's Office on 9/2/2015) (rm, ).

Case: 1:13-cv-03383 Document #: 108 Filed: 08/04/15 Page 1 of 7 PageID #:2590

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LINDA PASTERNAK, NANCY
)
DYKSHORN, and ALICE MCMILLEN, )
)
Plaintiffs,
)
)
v.
)
)
VILLAGE OF DOLTON, a municipal
)
corporation,
)
)
Defendant.
)

13 C 3383
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Plaintiffs sue defendant for its alleged violations of Title VII, the Age Discrimination in
Employment Act (“ADEA”), 42 U.S.C. § 1981, and the Fourteenth Amendment and for retaliatory
discharge. The case is before the Court on the parties’ cross-motions for summary judgment
pursuant to Federal Rule of Civil Procedure (“Rule”) 56 and defendant’s motion to strike plaintiffs’
Local Rule (“LR”) 56.1(a) Statement. For the reasons set forth below, the Court strikes as moot the
motion to strike, denies in part and strikes as moot in part plaintiffs’ motion, and grants in part and
strikes as moot in part defendant’s motion.

Motion to Strike
Defendant moves to strike four of the six statements asserted by plaintiffs in their LR 56.1(a)
Statement because they are hearsay, argumentative, or assert legal conclusions. (See Def.’s Mot.
Strike ¶¶ 1, 3-4, 6.) Because the Court disregards inadmissible or improper statements as a matter
of course, it strikes as moot defendant’s motion to strike.

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Motions for Summary Judgment
LR 56.1 requires a party opposing summary judgment to file “a concise response to the
movant’s statement [of material undisputed facts] that shall contain,” among other things, “a
response to each numbered paragraph in the moving party’s statement, including, in the case of any
disagreement, specific references to the affidavits, parts of the record, and other supporting materials
relied upon.” LR 56.1(b)(3)(B). The purpose of the Rule is “to isolate legitimately disputed facts
and assist the court in its summary judgment determination.” Brown v. GES Exposition Servs., Inc.,
No. 03 C 3921, 2006 WL 861174, at *1 (N.D. Ill. Mar. 31, 2006). This Court can and does require
strict compliance with LR 56.1. See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817
(7th Cir. 2004) (“We have . . . repeatedly held that a district court is entitled to expect strict
compliance with Rule 56.1.”) (citing Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 527
(7th Cir. 2000); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994)).
Plaintiffs did not follow the Rule. Instead, they “[d]isputed in part” most of the fact
statements made by defendant, without identifying the part(s) of the statements with which they
disagreed, and supported the partial denials with general citations to lengthy documents or their own
memorandum of law, neither of which is appropriate. (See Pls.’ LR 56.1(b)(3)(B) Stmt. ¶¶ 4-6, 8,
13, 16-17, 19-22, 25, 28-30, 32-41, 43-56, 60-61, 63-68); see also LR 56.1(b)(3)(B) (stating that any
fact dispute must be supported by evidence); Ammons, 368 F.3d at 817-18 (7th Cir. 2004)
(“Citations to . . . a lengthy exhibit are not specific and are . . . inappropriate. A court should not
be expected to review a lengthy record for facts that a party could have easily identified with greater
particularity.”). The Court could only make sense of plaintiffs’ “disputed in part” responses by
combing through the record for factual disputes, which it is not required to do. See Greer v. Bd. of

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Educ. of City of Chi., 267 F.3d 723, 727 (7th Cir. 2001) (“[A] lawsuit is not a game of hunt the
peanut. Employment discrimination cases are extremely fact-intensive, and neither appellate courts
nor district courts are “‘obliged in our adversary system to scour the record looking for factual
disputes.’” (quoting Waldridge, 24 F.3d at 921-22); United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991) (per curiam) (stating that “[j]udges are not like pigs, hunting for truffles buried” in the
record). Accordingly, the Court deems plaintiffs to have admitted the “disputed in part” statements
in their LR 56.1(b)(3)(B) Statement, i.e., ¶¶ 4-6, 8, 13, 16-17, 19-22, 25, 28-30, 32-41, 43-56, 60-61,
63-68.
Facts
The Dorchester Center is a senior housing and banquet facility owned by the Village of
Dolton (“Village”). (Pls.’ LR 56.1(b)(3)(B) Stmt. ¶¶ 1-2.) Sometime before 1998, the Village
contracted with a private property management company to manage the Dorchester. (Id. ¶ 3.) The
Village expected the company to pay the Dorchester’s operating expenses out of the revenues it
generated and that any profits would be assigned to the Village. (Id. ¶¶ 5-6.) If the Dorchester did
not make enough to cover operating expenses, the Village would loan the management company
money to cover essentials like payroll. (Id. ¶ 7.)
From 1998 through September 21, 2001, the management company was Schweer Senior
Care Management Company, which was owned by Fred Hansen. (Id. ¶ 8; see Def.’s LR 56.1(a)
Stmt., Ex. C, Dorchester Management Agreement (July 6, 1998).) The agreement between the
Village and Schweer states that “[t]he employees of [Schweer] shall not be considered employees
of the Village.” (Def.’s LR 56.1(a) Stmt., Ex. C, Dorchester Management Agreement ¶ 3 (July 6,
1998).)

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At some point during Schweer’s tenure as the management company, Hansen hired plaintiff
Dykshorn to work in the Dorchester’s front office and plaintiff McMillen to be head of
housekeeping. (Pls.’ LR 56.1(b)(3)(B) Stmt. ¶¶ 11, 17.)
Sometime thereafter, plaintiff Pasternak took over Hansen’s role at Schweer, and on
September 14, 2001, she filed articles of incorporation with the Illinois Secretary of State for
Schwartz Senior Care Management, Inc. (See id. ¶ 21; Def.’s LR 56.1(a) Stmt., Ex. E, Articles of
Incorporation.)
On September 21, 2001, the Village entered into an agreement with Schwartz Senior Care
Management, Inc. to have it manage the Dorchester. (See Def.’s LR 56.1(a) Stmt., Ex. D,
Dorchester Management Agreement (Sept. 21, 2001).) The agreement is signed by Pasternak as
president of Schwartz and states that “[t]he employees of [Schwartz] shall not be considered
employees of the Village.” (Id. ¶ 3 & Signature Page.) The next day, Pasternak hired McMillen and
Dykshorn to work for Schwartz. (Pls.’ LR 56.1(b)(3)(B) Stmt. ¶ 35.)
On April 28, 2008, Pasternak sustained a work-related injury that precluded her from
performing any work as the manager of the Dorchester or owner of Schwartz. (Id. ¶ 51.)
On May 2, 2008, the Village notified Pasternak that the management contract between the
Village and Schwartz was terminated effective April 30, 2008. (Id. ¶ 55.) Apparently, plaintiffs’
employment at the Dorchester ended on that date.
Discussion
To prevail on a summary judgment motion, “the movant [must] show[] that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). At this stage, we do not weigh evidence or determine the truth of the matters

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asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence and
draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill., Inc.,
209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the record as a
whole establishes that no reasonable jury could find for the non-moving party. Id.

Federal Claims
Plaintiffs allege that the Village discriminated against them on the basis of their race and sex
in violation of Title VII, the Fourteenth Amendment, and 42 U.S.C. § 1981 (Counts I, III, V, VII and
IX, and XI), and on the basis of their age in violation of the ADEA (Counts II, VI, and X). To defeat
defendant’s motion and prevail on their own, plaintiffs must show that the Village was their
employer and that it discriminated against them because of their race, sex, and age. See 42 U.S.C.
§ 2000e-2(a)(1) (prohibiting race and gender discrimination by employers); 29 U.S.C. § 623(a)(1)
(prohibiting age discrimination by employers); 42 U.S.C. § 1981 (prohibiting race discrimination
in contracts); Trigg v. Fort Wayne Cmty. Schs., 766 F.2d 299, 300 (7th Cir. 1985) (“The Fourteenth
Amendment’s Equal Protection Clause prohibits intentional discrimination based on membership
in a particular class . . . including acts of employment discrimination.”). Plaintiffs contend, and
defendant denies, that the Village was plaintiffs’ employer.
However, even if it was, an issue the Court does not decide, plaintiffs could prevail only if
they showed that they were the victims of discrimination. They can do so by using either the direct
method of proof or the indirect method set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 719 (7th Cir. 2005); see Burks
v. Wis. Dep’t of Transp., 464 F.3d 744, 750 (7th Cir. 2006) (stating that the same analysis applies

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to Title VII and Fourteenth Amendment discrimination claims); Bratton v. Roadway Package Sys.,
Inc., 77 F.3d 168, 176 (7th Cir. 1996) (“We analyze § 1981 discrimination claims in the same
manner as claims brought pursuant to Title VII . . . .”). The direct method requires proof of
discriminatory animus, e.g., evidence of biased comments, that defendant gave “systematically better
treatment” to similarly-situated employees outside of the protected class or that defendant treated
such employees more favorably for incredible reasons. Rudin, 420 F.3d 712, 720-21 (quotation
omitted).

The indirect method first requires each plaintiff to make a prima facie case of

discrimination by showing that: (1) she is a member of a protected class; (2) she was meeting her
employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) a
similarly-situated employee outside of the protected class was treated more favorably. Burks, 464
F.3d at 750-51.
The record contains no evidence that suggests plaintiffs were the victims of discrimination
under either method. It is reasonable to infer from plaintiffs’ LR 56.1 Statements that they are
female and were terminated from their jobs at the Dorchester. However, those Statements do not
assert, or contain facts from which the Court can infer, the race of each plaintiff or that each plaintiff
is at least forty years old. See generally, Pls.’ LR 56.1(a) Stmt.; Pls.’ LR 56.1(b) Stmt.; see also 29
U.S.C. § 631(a) (stating that “[t]he prohibitions [in the ADEA] shall be limited to individuals who
are at least 40 years of age”). Also missing are any facts that suggest a man, of any age or race,
received more favorable treatment than plaintiffs. Absent such evidence, plaintiffs have not created
a genuine issue of material fact as to whether they were victims of discrimination, and the Village
is entitled to judgment as a matter of law on their discrimination claims.

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State Claims
In Counts IV, VIII, and XII, plaintiffs assert state-law claims for retaliatory discharge.
Having dismissed all of the federal claims in this case, the Court declines to exercise supplemental
jurisdiction over the state law claims in these counts, which are dismissed without prejudice to
refiling in state court. See 28 U.S.C. § 1367(c)(3) (stating that a district court may decline to
exercise supplemental jurisdiction over state claims if it “has dismissed all claims over which it has
original jurisdiction”).

Conclusion
For the reason set forth above, the Court: (1) strikes as moot defendant’s motion to strike
[101]; (2) denies plaintiffs’ motion for summary judgment [95] as to the federal claims (Counts I-III,
V-VII and IX-XI) and strikes it as moot as to the state claims (Counts IV, VIII, and XII); (3) grants
defendant’s motion for summary judgment [91] as to the federal claims (Counts I-III, V-VII and IXXI) and strikes it as moot as to the state claims (Counts IV, VIII, and XII); and (4) declines to
exercise supplemental jurisdiction over the state claims, which are dismissed without prejudice to
refiling in state court.
SO ORDERED.

ENTERED: August 4, 2015

__________________________________
HON. JORGE ALONSO
United States District Judge

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