Aberman v. Bd. of Educ. of Chi.

242 F.Supp.3d 672

Marcie ABERMAN, Plaintiff,

v.BOARD OF EDUCATION OF the CITY OF CHICAGO and Susan A. Lofton, Defendants.

Case No. 12–cv–10181

United States District Court, N.D. Illinois, Eastern Division.

Signed March 17, 2017

Johnny Allen Douglas, West Randolph, IL, Patrice Dayale Dziire, Law Offices of Patrice Dziire, Chicago, IL, for Plaintiff.

Kathleen D. Crawford, Kathleen Marie Gibbons, Susan Margaret O'Keefe, Linda Hogan, Erin Murphy Hillstrom, Board of Education of the City of Chicago Department of Law, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge

Plaintiff Marcie Aberman brings this action against Defendants Board of Education of the City of Chicago and Susan Lofton alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and the Illinois Human Rights Act ("IHRA") against the Board (Count I); disability discrimination in violation of the IHRA and the Americans with Disabilities Act ("ADA") against the Board (Count II); violations of the Rehabilitation Act § 504 against the Board (Count III); violations of the Family Medical Leave Act ("FMLA") against the Board and Lofton (Count IV); and breach of contract against the Board (Count VII).¹

Currently before the Court are the parties' cross-motions for summary judgment [111] and [129]. For the reasons stated below, the Court grants Defendant's motion for summary judgment on Plaintiff's federal claims in Count I through Count IV. In view of that disposition of the federal claims, Plaintiff's remaining state law claims are dismissed without prejudice. The Court will enter a final judgment and close the case.

I. Background

The following facts are drawn primarily from the parties' Local Rule 56.1 statements, [113], [129, Exhibit 56], [129, Exhibit 55], and [136]. Plaintiff, a former high school mathematics teacher, was given an "unsatisfactory" performance rating by a new principal, Defendant Susan Lofton, and was then terminated from her tenured position and placed in the Reassigned Teachers Pool. Plaintiff has an auditory impairment and was over the age of forty at the time of reassignment.

A. Local Rules

As a preliminary matter, the Court notes that Local Rule 56.1 requires a party moving for summary judgment to submit a statement of material facts as to which the movant contends there is no genuine issue and entitles the movant to judgment as a matter of law. Each party opposing a motion for summary judgment is then required to file "any opposing affidavits and other materials referred to in [ Federal Rule of Civil Procedure 56(e) ]" and a "concise response" to the movant's statement of facts containing "any disagreement, specific references to the affidavits, parts of the record, and other supporting materials." L.R. 56.1(b)(1), (3). "A general denial is insufficient to rebut a movant's factual allegations; the nonmovant must cite specific evidentiary materials justifying the denial." Malec v. Sanford , 191 F.R.D. 581, 584 (N.D. Ill. 2000). Local Rule 56.1(b)(3)(C) is not satisfied by "purely argumentative denials," id. , or "evasive denials that do not fairly meet the substance of the material facts asserted," Bordelon v. Chi. Sch. Reform Bd. of Trs. , 233 F.3d 524, 528 (7th Cir. 2000). "The purpose of the 56.1 statement is to identify for the Court the evidence supporting a party's factual assertions in an organized manner[;] it is not intended as a forum for factual or legal argument." Malec , 191 F.R.D. at 585.

Plaintiff's Response to Defendants' Statement of Facts [129, Exhibit 56] does not comply with these requirements. Many of Plaintiff's "concise responses" do not directly address Defendants' statement of facts but rather amount to lengthy recitations of unrelated allegations. [See, e.g. , 129, at ¶ 19.] Additionally, many of Plaintiff's denials assert facts without citations to the record, [see, e.g. , ¶¶ 4, 9, 20], cite exhibits which do not support the denial, [see, e.g. , ¶¶ 30, 33], or contain blank spaces with incomplete citations, [see, e.g. , ¶ 9 ("See Pl. Resp. to paragraph ___. Further Denied to the extent that Darroch, or any other administrator, actually demonstrated a willingness or ability to address student behavior issues. ___. Otherwise Denied.").] Moreover, some of the exhibits that Plaintiff cites are not in the record, [see, e.g. , Exhibit 2; Group Exhibit 12], or are allegedly "included on [sic] disk and filed under seal," [see, e.g. , Exhibit 51; Group Exhibit 8; Group Exhibit 10; Group Exhibit 11], yet said disk and courtesy copies of Plaintiff's filings were not delivered to the Court despite the Court's explicit instructions that courtesy copies should be delivered within 24 hours of filing and the Courtroom Deputy's follow-up request to Plaintiff's counsel.

Further, Exhibit 3, which Plaintiff frequently cites, is purportedly an "affidavit of Marcie F. Aberman." However, the document is not sworn, signed, or dated. [129, Exhibit 3, at 10.] An affidavit is admissible in a summary judgment proceeding only if it is sworn to before an officer authorized to administer an oath, such as a notary public. See Pfeil v. Rogers , 757 F.2d 850, 859 (7th Cir. 1985). Since Exhibit 3 is not sworn to before an officer authorized to administer an oath, it is not an admissible affidavit. Under 28 U.S.C. § 1746, an unsworn declaration which is dated and signed by the declarant "under penalty of perjury" and verified as "true and correct" may be used in lieu of a sworn affidavit to support or respond to a motion for summary judgment. See DeBruyne v. Equitable Life Assur. Soc'y , 920 F.2d 457, 471 (7th Cir. 1990). Although Exhibit 3 contains the language "I certify under penalty of perjury that the facts stated herein are true and correct," it is not signed or dated, and thus is not admissible as an unsworn declaration under 28 U.S.C. § 1746.² See Trapaga v. Central States Joint Bd. Local 10 , 2007 WL 1017855 (N.D. Ill. March 30, 2007).

Because of these shortcomings in Plaintiff's filings, where Plaintiff responds to Defendants' Rule 56.1 Statement of Facts with an unsupported denial, a denial allegedly supported by an exhibit that is inadmissible or not in the record, an argument, or a legal conclusion, the Court will not consider that response, and Defendants' statement of fact will be deemed admitted. See L.R. 56.1(a), 56.1(b)(3)(B) ; see also Malec , 191 F.R.D. at 584 ; Moore–Fotso v. Bd. of Educ. of the City of Chicago , 211 F.Supp.3d 1012, 1017 (N.D. Ill. 2016). Similarly, where Plaintiff's Rule 56.1(c) Statement of Additional Facts [129, Exhibit 55] contains unsupported assertions of fact, the statements will not be considered. Although the Court will exercise its discretion in the direction of leniency and consider the portions of Plaintiff's statements and responses that arguably meet the requirements of the local and federal rules, Modrowski v. Pigatto , 712 F.3d 1166, 1169 (7th Cir. 2013) (making clear that, although district courts have discretion to require strict compliance with Rule 56.1, "[i]t does not follow * * * that district courts cannot exercise their discretion in a more lenient direction"), the Court notes that Plaintiff is not left with many facts to stand on. See Gross v. Town of Cicero, Ill. , 619 F.3d 697, 702 (7th Cir. 2010) (striking the parties' factual assertions that lacked direct citation to easily identifiable support in the record and explaining that "Judges are not like pigs, hunting for truffles buried in [the record]." (citation and internal quotation marks omitted)).

The Court also notes that Plaintiff's brief improperly cites to raw record materials rather than to its Local Rule 56.1 statement, which is a blatant violation of the local rules. This violation of Local Rule 56.1, standing alone, is enough to deny Plaintiff's partial motion for summary judgment [129]. See Sledge v. Bellwood Sch. Dist. 88 , 2011 WL 2457920, at *2 (N.D. Ill. June 17, 2011) (denying summary judgment motion based on movant's violation of Local Rule 56.1 ); Daoust v. Abbott Labs. , 2006 WL 2711844, at *4 (N.D. Ill. Sept. 19, 2006) ("Citing directly to the record in the memorandum statement of facts, as [the movant] does here, rather than citing to its 56.1(a)(3) statement, negates the purpose of the summary judgment exercise."). However, the Court will exercise leniency and consider the merits of Plaintiff's motion.

Finally, the Court notes that despite having been granted several extensions of time to file a reply brief and the Court's admonition that given the well-documented history of delay in this case, no further extensions would be granted absent the most extreme of emergencies, Plaintiff has failed to file a reply brief. Thus, the Court will decide the parties' cross-motions for summary judgment without Plaintiff's reply brief. See Raymond v. Ameritech Corp. , 442 F.3d 600, 606 (7th Cir. 2006) (district judge acted within his discretion by not excusing party's delay in filing response to summary judgment motion where case had dragged on for over one year, party had already obtained one extension to file response, and court gave clear notice of deadline).³

B. The Facts

Turning to the facts of the case, Plaintiff worked as a mathematics teacher at Nicholas Senn High School ("Senn") from September 2005 through July 8, 2011. [113, at ¶ 3.] Defendant Susan Lofton was Principal of Senn from May 3, 2010 through July 20, 2015 and was Plaintiff's direct supervisor. [Id. at ¶ 4.] During the 2010–2011 school year, Assistant Principals ("A.P.") David Darroch and Carter Carey assisted Principal Lofton in the administration of Senn. [Id. ]

1. Plaintiff's Performance for the 2010–2011 School Year

During the 2010–2011 School Year, Plaintiff was observed three times by Defendant Lofton (November 22, 2010, February 2, 2011, and March 15, 2011) and once by A.P. Darroch (March 14, 2011). [Seeid. at ¶ 8.] A.P. Carey also observed Plaintiff during his...