Peak v. Laborers Union Local No.1

MEMORANDUM OPINION AND ORDER

Franklin U. Valderrama, United States District Judge

Plaintiff Bobby P. Peak II (Peak), worked for Defendant Laborers' Local No. 1 (Local 1) as a Business Agent. Defendant, Leonel Esparza (Esparza) (collectively with Local 1, Defendants), was Local 1's Business Manager and Peak's supervisor. Local 1 allegedly fired Peak after it discovered that he had a felony record which disqualified him from holding the position of Business Agent under the Labor-Management and Reporting Disclosure Act of 1959, (“LMRDA”), 29 U.S.C. § 504(a). Peak, an African-American, sued Defendants for race discrimination, race-based harassment during his employment, and retaliation under 42 U.S.C. § 1981 (Section 1981). R.^[1]60, Am. Compl.^[2]

Before the Court is Defendants' motion for summary judgment (Motion) pursuant to Federal Rule of Civil Procedure 56. R. 122, Mot. Summ. J. For the reasons stated below, the Court grants in part and denies in part Defendants' Motion.^[3]

Background

I. Local Rule 56.1 Statements and Responses

Before considering the merits of the Motion, the Court first addresses certain objections to, and evidentiary issues with, certain statements of fact, and Peak's alleged failure to comply with the Northern District of Illinois' local rules relating to the statement of facts.

When “a party moves for summary judgment in the Northern District of Illinois, it must submit a memorandum of law, a short statement of undisputed material facts [(L.R. 56.1 Statement)], and copies of documents (and other materials) that demonstrate the existence of those facts.” ABC Acq. Co., LLC v. AIP Products Corp., 2020 WL 4607247, at *7 (N.D. Ill. Aug. 11, 2020) (citing N.D.Ill. Local R. 56.1)). The L.R. 56.1 Statement must cite to specific pages or paragraphs of the documents and materials in the record. Id. (citing Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 818 (7th Cir. 2004)). Under Local Rule 56.1(b) and (e), the nonmovant must

counter with a response to the separate statement of facts, and either admit each fact, or, “[t]o dispute an asserted fact, a party must cite specific evidentiary material that controverts the fact and must concisely explain how the cited material controverts the asserted fact.” N.D.Ill. Local R. 56.1(e)(3). “Asserted facts may be deemed admitted if not controverted with specific citations to evidentiary material.” Id.; see Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (“When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.”); see also Daniels v. Janca, 2019 WL 2772525, at *1-2 (N.D. Ill. July 2, 2019). If the non-moving party asserts additional facts not included in the moving party's statement of facts, the non-moving party is to file a statement of additional material facts “that attaches any cited evidentiary material not attached to the [moving party's statement of facts] or the non-moving party's response [thereto].” N.D.Ill. Local R. 56.1(b)(3). The Seventh Circuit has repeated that “a district court may strictly, but reasonably, enforce local rules.” Igasaki v. Illinois Department of Financial and Professional Regulation, 988 F.3d 948, 957 (7th Cir. 2021).

Defendants argue that Peak violated the Local Rules. Specifically, Defendants contend that Peak violated the Local Rules by “inserting new, alleged statements of facts without citing to a L.R. 56.1 statement or response.” Reply at 1. Defendants ask the Court to strike said statements. Id. at 2-3.

The Court agrees with Defendants that Peak has disregarded Local Rule 56.1 by relying on facts throughout his response brief which are not included in his L.R. 56.1

Statement or response to Defendants' L.R. 56.1 Statement. See Reply at 2-3 (itemizing alleged facts which do not cite to any L.R. 56.1 Statement or response).“[P]roviding additional facts in one's responsive memorandum is insufficient to put those facts before the Court.” Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000); see also Igasaki, 2018 WL 4699791 at *2 (“Citing directly to new facts in the opposition brief is a clear violation of Local Rule 56.1.”). Accordingly, where Peak includes a statement of fact in his response without citing to the summary judgment record to support that statement of fact, the Court will not consider the unsupported statement. Further, the Court admonishes Peak for citing to the record and not to the statement of fact in violation of Local Rule 56.1(g) (“When addressing facts, the memorandum must cite directly to specific paragraphs in the LR 56.1 statements or responses.”); see Little v. Ill. Dept. of Pub. Health, 2020 WL 1530736, at *1 (N.D. Ill. Mar. 31, 2020) (disregarding facts set forth in response brief and not within a statement of facts, including when plaintiff cites directly to the record instead of a statement of fact).

The Court now turns to resolving specific evidentiary objections made in the responses to certain statements of fact. Peak launches several hearsay objections to communications between himself and other Local 1 employees or Business Agents contained in Defendants' Statement of Facts. See Resp. DSOF ¶¶ 15-16, 18-22, 2933, 43, 71. Peak also objects to most of those communications based on lack of foundation or authentication. Resp. DSOF ¶¶ 16, 18-22, 29-33, 43, 71. Peak also objects to photographs based upon a purported lack of foundation or authentication.

Id. ¶ 98. Last, Peak objects to one statement of fact as calling for a legal conclusion. Id. ¶ 45. The Court addresses each objection, in turn, below.

A. Hearsay Objections

Peak argues that certain text messages relied upon by the Defendants between himself and other Local 1 employees or Business Agents constitute inadmissible hearsay. See Resp. DSOF ¶¶ 15-16, 18-22, 29-33, 43, 71. Surprisingly, Defendants fail to address the hearsay objections in their reply brief. Therefore, Defendants waive any response. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument . . . results in waiver.”)

“An out-of-court statement offered to prove the truth of the matter asserted is generally inadmissible hearsay. Conversely, an out-of-court statement is not hearsay-and is generally admissible-if it is not offered to prove the truth of the matter asserted.” Lovelace v. McKenna, 894 F.3d 845, 849 (7th Cir. 2018) (cleaned up).^[4] In deciding a motion for summary judgment, the Court may only consider evidence that can “be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). However, the evidence offered at summary judgment must only “be of a kind admissible at trial” and “it need not be in the precise form that it would be offered (or admissible)” at trial. Taylor v. Dart, 2022 WL 4483908, at *2 (N.D. Ill. Sept. 27, 2022), appeal dismissed sub nom. Taylor v. Pretty, 2023 WL 7279288 (7^th Cir. June 1, 2023)

(citing Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 & n.2 (7th Cir. 1994)).

As a preliminary matter, the text messages that Peak sent do not constitute hearsay. See Fed.R.Evid. 801(d)(2)(A); see United States v. Lewisbey, 843 F.3d 653, 658 (7th Cir. 2016) (“The text messages [the defendant] sent are his own statements and as such are excluded from the definition of hearsay by Rule 801(d)(2)(A).”) As for the text messages sent by others, as the Court understands it, Defendants primarily rely upon the text messages not for the truth of the matter asserted within the text messages, but as examples of the nature and kind of communications between Peak and his co-workers at Local 1, and the effect of the communications on Peak as the listener, which is permitted. See Fed.R.Evid. 801(c). On this basis, the Court may consider the communications not for the truth of the matter asserted within the communications, but for context of the relationship between Peak and his co-workers, and the effect of the communications on Peak as the listener, provided that Defendants have laid a foundation for such communications. See Noone v. Presence Hosps. PRV, 149 F.Supp.3d 904, 909 (N.D. Ill. 2015) (collecting cases finding out-ofcourt statements introduced to show the effect on the listener are not hearsay).

B. Foundation Objections

Peak also objects to the admissibility of certain text messages based on lack of foundation or authentication. See Resp. DSOF ¶¶ 16, 18-22, 29-33, 43, 71, 98. Interestingly, Peak cherry-picks the text messages he claims lack foundation. Not surprisingly, he takes no issue with those text messages which support his narrative,

but objects to those text messages that undermine his claims. See id.; cf. with PSOAF ¶ 11. The Court considers Peak's objections below.

“When an objection to summary judgment evidence is raised, the objected-to-evidence maybe considered ‘only if the court concludes that the evidence would be admissible at trial.'” Keenan v. Home Depot U.S.A., Inc., 2021 WL 4264358, at *22 (N.D. Ill. Sept. 20, 2020) (quoting Steffek v. Client Servs., Inc., 948 F.3d 761, 769 (7th Cir. 2020)). “Thus, when an objection is raised, documents must be authenticated by an affidavit that lays a proper foundation for their admissibility.” Id. Federal Rule 901(a) governs the authentication of evidence and provides that, to authenticate an item of evidence, the proponent “must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” United States v. Jackson, 940 F.3d 347, 351 (7th Cir. 2019) (quoting Fed.R.Evid. 901(a)).

Here, while Esparza submitted a Declaration in support of Defendants'...