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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF 

ILLINOIS EASTERN DIVISION 

NANCY TRUMBULL, ) 

) 

Plaintiff, ) Case No. 12-CV-00321 

) 

v. ) Judge Amy J. St. Eve 

) Magistrate Judge Maria Valdez 

SCI ILLINOIS SERVICES, INC. d/b/a 

ROSEHILL CEMETERY, 

) 

) 

) 

Defendant. ) 

PLAINTIFF, NANCY TRUMBULL’S, MOTION FOR RELIEF FROM JUDGMENT AND IN THE 

ALTERNATIVE MOTION TO ALTER OR AMEND A JUDGMENT

NOW COMES the Plaintiff, NANCY TRUMBULL, by and through her attorneys, EILEEN 

M. LETTS, MARTIN P. GREENE and KEVIN T. LEE of the law firm Greene and Letts, and for 

her Federal Rule of Civil Procedure Rule 60 Motion for Relief from Judgment or Order and, in 

the alternative, Federal Rule 59(e) Motion to Alter or Amend a Judgment, and states as follows: 

PROCEDURAL HISTORY 

1. On September 5, 2013 at 2:16 PM central time, plaintiff’s counsel received a notice that 

defendant’s attorneys had filed a supplement to their Rule 56 statement. (Ex. A, Email from the 

CM/ECF system dated September 5, 2013). The attachments were not served upon Plaintiff’s 

counsel, but a check of the court’s docket sheet discloses that the documents filed consisted of: 

(i) a January 9, 2009 email from Leonard Hayes to Gary Ritter, Larry Michael, Jeffrey Craig, and 

David Klein (Exhibit 1) regarding Hayes’ understanding of pre-need versus at-need contracts; 

(ii) a September 30, 2008 email from Emmanual Diakoumakis, SCI Human Resources, to Gary 

Ritter regarding plaintiff’s alleged fraud. (Exhibit 2); (iii) handwritten notes regarding Bob 

LaVoncher’s interactions with Nancy Trumbull (Exhibit 3); and (iv) a copy of the Charles Hall 

contract (Exhibit 4). (Dkt. No. 19). 

2. Since plaintiff had not received a notice of a motion seeking leave for defendant to 

supplement its Rule 56 statement, one of plaintiff’s attorneys, Martin P. Greene, contacted one 

Case: 1:12-cv-00321 Document #: 96 Filed: 10/08/13 Page 1 of 10 PageID #:1344
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of defendant’s attorneys, Jonathan Linas, and inquired as to any motion seeing leave to file a 

supplement. Mr. Greene’s September 5, 2013 email read: 

From :      "Martin P. Greene" <mpgreene@greeneandletts.com>

To :    "Jonathan Linas (jlinas@JonesDay.com)" <jlinas@JonesDay.com>

Cc :        "Eileen M. Letts" <emletts@greeneandletts.com>, Kevin Lee

<ktlee@greeneandletts.com>, "Brent D. Knight (bdknight@JonesDay.com)"

<bdknight@JonesDay.com>

Sent on : 09/05 06:34:09 PM EDT

Subject : FW: Activity in Case 1:12‐cv‐00321 Trumbull v. SCI Illinois Services, Inc.

supplement

Jonathan,

I am receipt of the notice of filing set out below.  I do not recall seeing a motion for

leave to file.  Did I miss something in that regard?

Thanks.  (Ex. B, Email from Martin P. Greene to Jonathan Linus, Sept. 5, 6:34 pm EST)

3. Defendant’s counsel responded as follows: 

‐‐‐‐‐Original Message‐‐‐‐‐ 

From: Jonathan Linas [mailto:jlinas@JonesDay.com]  

Sent: Thursday, September 05, 2013 5:49 PM

To: Martin P. Greene

Cc: Eileen M. Letts; Kevin Lee; Brent D. Knight (bdknight@JonesDay.com)

Subject: RE: Activity in Case 1:12‐cv‐00321 Trumbull v. SCI Illinois Services, Inc.

supplement

Martin,

Chambers called me and asked me to file it.

Jon  (Ex. C, Email from Jonathan Linus to Martin P. Greene, September 5, 2013, 5:49 pm

CST)

4. At no point were any of plaintiff’s attorneys contacted by the Court’s Chambers regarding 

a request to defendant that it supplement its 56.1 Statement of Facts. Nor was plaintiff 

requested to be a part of any communication between the Court’s Chambers and defendant’s 

counsel regarding a supplementation of its Rule 56.1 Statement. 

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5. Plaintiff does not suggest any ex parte communication in this matter was anything other 

than through inadvertence; however it should be noted that prohibitions on communications of 

this type are taken very seriously. ABA Code of Judicial Conduct 2.9 and Illinois Supreme Court 

Code of Judicial Conduct Rule 63(A) provide that “a judge shall not initiate, permit, or consider 

ex parte communications, or consider other communications made to the judge outside the 

presence of the parties or their lawyers, concerning a pending or impending matter,” ABA Model 

Code of Judicial Conduct 2.9(A)(1)-(5); See Ill. Sup, Ct. R. 63(A). Furthermore, the ABA Code 

of Conduct requires that a judge make reasonable efforts, including providing appropriate 

supervision, to ensure that this rule is not violated by court staff, court officials, and others 

subject to the judge’s discretion and control. ABA Model Code of Judicial Conduct 2.9(D). 

However, where “a judge inadvertently receives and ex partee communication bearing upon the 

substance of a matter, the judge shall make provision promptly to notify the parties with an 

opportunity to respond.” ABA Model Code of Judicial Conduct Rule 2.9(B). 

6. It is now apparent that an ex parte communication has occured and that communication 

had a bearing upon the Court’s summary judgment ruling. Plaintiff’s counsel was not given an 

opportunity to respond to any request by the Court’s Chambers to allow defendant to 

supplement its Rule 56 Statement of Facts. Had plaintiff been given such an opportunity, 

plaintiff would have argued that she should be given a similar opportunity to supplement or 

amend her summary judgment filings. As it stands, plaintiff was denied the opportunity to make 

such an argument, which would only have been a fair result. Such a result would also have 

allowed the Court to avoid the appearance of impropriety, even though that appearance may 

have come about by way of inadvertence. 

7. The cure is for the Court to allow plaintiff’s present motion to serve as plaintiff’s 

opportunity to respond to defendant being granted leave to file a supplement to their Rule 56 

Statement of Facts. Plaintiff does not object to defendant being granted leave to supplement its 

Statement, provided plaintiff is given a similar opportunity to supplement or amend her 

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Statement. Such supplement or amendment consists of: (i) Plaintiff’s Second Amended 

Response to Defendant’s Statement of Undisputed Material Facts (Ex. D) ; and (ii) Plaintiff’s 

Second Amended Statement of Additional Facts (Ex. E). 

The Court’s Granting of Defendant’s Motion from Summary Judgment 

8. On September 10, 2013, this Court entered an order granting Defendant’s Motion for 

Summary judgment and dismissing the Plaintiff’s lawsuit in its entirety. (Memorandum and 

Order. Sept. 10, 2013). 

9. The Court held that Plaintiff failed to demonstrate SCI’s stated reason for terminating 

her employment was mere pretext because the record evidence showed that Larry Michael 

honestly believed that Trumbull was untruthful when he decided to terminate her employment. 

(Memorandum and Order, 12,16). 

10. The Court also found that Plaintiff had in fact committed theft by misapplying the preneed/at-need policy and held that it was unclear whether the misconduct engaged in by other 

employees, such as, admittedly lying to one’s supervisor or violating the Defendant’s internment 

verification procedure, is the same or similar conduct to the Plaintiff’s conduct. The Court also 

found that it could not engage in a similarly situated comparator analysis because Plaintiff cited 

facts in support of this argument in her 56.1 Responses to the Defendant’s Statement of facts 

rather than in her 56.1 Statement of Additional Material Facts. (Memorandum and Order, 14-

15). 

11. In fact, the Court disregarded many of the Plaintiff’s factual assertions because they 

were made in contravention of Local Rule 56.1(b)(3)(B). (Memorandum and Order, 2). 

12. Most damaging is the Court’s discarding of Plaintiff’s response to Defendant’s Statement 

of Undisputed fact number 32, which contains citations evidencing that: (a) Tom Bornstein and 

Tom Hetman are similarly situated comparators based on the nature of their misconduct and 

violations of company policy; (b) SCI’s Internment Verification Procedures are some of SCI’s 

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most important and; (c) that SCI employees have been terminated for violating the procedures. 

(Ex. F, Pl’s Am. Resp. to Def.’s Statement of Undisputed Facts, ¶ 32, June 6, 2013). 

ARGUMENT

I. PLAINTIFF’S RULE 60(b) MOTION FOR RELIEF FROM JUDGMENT

Trumbull’s motion is based, in part, on subsection (6) of Rule 60(b). Rule 60 is an 

extraordinary remedy that grants the court the power to modify its orders to correct inadvertent 

errors detected within a reasonable time, in exceptional circumstances, where there is 

substantial danger that the underlying judgment was unjust. Knox v. Lichtenstein, 654 F.2d 

19,21 (Eighth Cir. 1981); Dickerson v. Board of Education, 32 F.3d 1114, 1116 (7th Cir. 1994); 

Daniels v. Brennan, 887 F.2d 783, 790 (7th Cir. 1989) (citations omitted). Rule 60(b)(6) 

provides that the court may relieve a party or its legal representative from a final judgment, 

order, or proceeding for any reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). 

Sometime before September 15, 2013, Defendant’s counsel tendered to the Court, 

without notice to the plaintiff, four supplemental documents bearing on the substance of this 

case. (See ¶ 1, Procedural Background). Plaintiff counsel does not know whether this ex parte

communication had any prejudicial impact in the Court’s ultimate decision to grant, in full, 

Defendant’s Motion for Summary Judgment. Nevertheless, plaintiff should have been promptly 

notified and given an opportunity to respond. See ABA Model Code of Judicial Conduct Rule 

2.9(B). 

It is also unknown for what purpose the Court’s Chambers requested the defendant to 

supplement the record. However, the Court dismissed Plaintiff case based substantially, in part, 

on Plaintiff non-compliance with Local Rule 56.1. Many of the Plaintiff citations to record 

evidence supporting plaintiff’s discrimination and retaliation claims were contained solely in her 

Response to the Defendant’s Statement of Undisputed Facts, which were disregarded by the 

Court. While the Court does have the discretion to require strict compliance with Local Rule 

56.1, it is equally endowed with the discretion to consider less severe sanctions for plaintiff’s 

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failed compliance with Local Rule 56.1 instead of the wholesale discarding of facts citied in her 

Response to Defendants Statement of Facts. See Cracco v. Vitrqan Express, Inc., 559 F.3d 

625, 632 (7th Cir. 2009). Certainly, the Court’s Chamber’s exercised such judicial discretion in 

affording the defendant an opportunity to supplement the record. In the interest of providing 

Plaintiff an opportunity to present her case, in its entirety, on the merits, plaintiff requests the 

this Court grant her the opportunity to amend her Response to Defendant’s Statement of Facts 

as well as her Statement of Additional Facts. 

II. PLANITIFF’S 59(e) MOTION TO ALTER OR AMEND A JUDGMENT

Federal Rule of Civil Procedure 59(e) allows a party against whom an unfavorable 

decision has been issued to "direct a court's attention to matters such as newly discovered 

evidence or a manifest error of law or fact." Wilczynski v. Kemper Nat'l Ins. Cos., 1995 U.S. 

Dist. LEXIS 10304, 2 (N.D. Ill. July 19, 1995). "The rule essentially enables a court to correct its 

own errors, sparing the parties and the appellate courts the burden of unnecessary appellate 

proceedings." Id. A Rule 59(e) motion should not be used by the losing party "as a vehicle to 

rehash arguments previously considered and rejected by the court." Id. at 3. 

A. The Court Made an Improper Credibility Assessment Regarding Larry 

Michael’s Honest Belief That Trumbull Committed Theft. 

The Court held that the record evidence showed that Larry Michael actually believed that 

Trumbull was untruthful and that “pretext does not exist if the decision maker honestly believed 

the nondiscriminatory reason for its employment action.” (Memorandum and Order, 16). 

However, Michael possessed a professional and financial interest in avoiding liability for 

discrimination and retaliation. The Supreme Court and the Seventh Circuit have both recognized 

that “credibility determinations, the weighing of the evidence, and the drawing of legitimate 

inferences from the facts are jury functions, not those of a judge...” Moreover, the court should 

give credence to the evidence favoring the nonmovant as well as that “evidence supporting the 

moving party that is uncontradicted and unimpeached, at least to the extent that the evidence 

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comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,151 

(2000). (emphasis added and internal citations omitted). The Court’s decision overlooks this 

vital nuance to the rule. 

In Stalter v. Wal-mart Stores, Inc., 195 F.3d 285 (7th Cir. 1999), the Seventh circuit 

found incredible Wal-Mart’s justification for terminating an employee who Wal-Mart, purportedly, 

honestly believed had committed theft under Wal-mart’s company policies. Stalter, 195 F.3d at 

278. There, Wal-mart terminated the employment of an African-American employee, for taking 

and eating a “handful of taco chips” from an open bag on a countertop in an employee 

breakroom. Stalter, 195 F.3d at 278. Wal-mart had an unwritten policy permitting employees to 

eat food items “abandoned” in the breakroom. Stalter, 195 F.3d at 287. However, unbeknownst 

to the employee, the chips belonged to a co-worker. Stalter, 195 F.3d at 287. The employee’s 

supervisor terminated him after conducting an independent investigation, and determining that 

the taking of the taco chips constituted theft under Wal-Mart’s policies. Stalter, 195 F.3d at 287. 

The policy at issue provided that “certain actions of gross misconduct may result in immediate 

termination... These actions include, but are not limited to...”[t]heft...” Stalter, 195 F.3d at 286. 

The district court held that the employee had failed to present any evidence that WalMart’s stated reason for discharging him was pretextual since he had technically committed theft 

under the policy. Stalter, 195 F.3d at 286, 288. The Seventh Circuit reversed, finding that WalMart’s interpretation of theft under the policy and the severity of the punishment levied against 

the employee were so unreasonable that it called into question the credibility of Wal-mart’s 

stated “honest” reason for terminating the employee. Evidence was also presented that a 

similarly situated white co-worker was not terminated for lying to her supervisor regarding her 

absenteeism, conduct that also constitutes gross misconduct under Walk-Mart’s policies.. 

Stalter, 195 F.3d at 291. The Seventh Circuit held that based on the evidence “a jury is 

certainly free to believe that [theft] was not the true reason Wal-Mart fired Stalter.” Stalter, 195 

F.3d at 290. 

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Here, like in Wal-mart, plaintiff was technically guilty of violating the pre-need/at-need 

policy. Moreover, like in Wal-mart, plaintiff supervisor, Larry Michael, conducted an 

independent investigation and plaintiff pointed to record evidence that a non-African American 

employee was given a comparatively lenient punishment for admittedly lying to his supervisor, 

an offense which, pursuant to Rules of Conduct and Uniform Code could have been punished 

with immediate termination. 

The Court also did not afford the Leonard Hayes' testimony the same weight it afforded 

to Larry Michael’s. In plaintiff’s Statement of Additional Material Facts, she cites deposition 

testimony from Leonard Hayes, stating that: (a) sales counselors would sometimes use the 

wrong contract and that happened possible more than 15 times; (b) when sales counselors 

used the wrong contact the counselor would typically be sent back to the family to have the 

contract re-written; and (c) he could not remember anyone being fired for using a preneed 

contract when an at-need contract was required. (Ex. G, Pl’s First Am. Statement of Additional 

Facts, ¶¶ 4-6). Based on this evidence a jury is certainly free to believe that [theft] was not the 

true reason SCI fired plaintiff. See Stalter, 195 F.3d at 290. 

B. The Plaintiff Raised Sufficient Evidence of Pretext and Triable Issues of 

Discrimination and Retaliation. 

By discarding much of plaintiff cited facts for violating rule 56.1, plaintiff’s arguments 

were impoverished of any evidentiary force to show pretext. Had the Court considered the 

record evidence cited by plaintiff, it would have found several disputed issues of material fact. 

1. SCI’s Employee Handbook Provides That Theft, Providing False 

Information to Supervisors and Being Deceitful are All Violations of the 

Rules of Conduct. 

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The defendant’s Employee Handbook provides Rules of Conduct (“Rules”).1 The Rules 

provide that “there are some forms of behavior that will not be tolerated, including, but not 

limited to “[d]amage, destruction, theft, or misuse of Company property...” 

SCI’s Rules of Conduct provide that any violation may be grounds for immediate 

termination, regardless of whether the offense involves theft, providing false information to 

supervisors, or deception. Thus, the Rules of Conduct themselves resolve the Court’s question 

as to whether lying and deceiving one’s supervisor is conduct the same or similar conduct to 

plaintiff alleged theft and deception. 

Moreover, under defendant’s expansive interpretation of its theft policy, any conduct that 

results in an increase commission payment to an employee, whether by intention, error, or 

mistake, is theft warranting of immediate termination. Such a drastic and unreasonable position 

calls into question whether SCI has adopted this stance in this case merely as pretext for 

discrimination and retaliation; especially given that plaintiff: (1) informed SCI human resources 

that she was subject to harassment by Bob LaVoncher because she was African American and 

female; (2) spoke with Leonard Hayes at least twice regarding LaVoncher’s harassment; (3) 

contacted the Careline four times regarding LaVoncher’s harassment and other workplace 

irregularities; (4) transferred from her previous position as a Family Services Counselor to a 

Community Service counselor to escape the strained relationship with LaVoncher; and (6) was 

subject to an investigation for theft initiated and conducted by Bob LaVoncher. 

2. Whether the Violations of Internment Verification Procedures and 

Violations of the At-need/Pre-need Procedures are Comparable Offenses 

Should be Resolved by the Jury. 

Much is made of the difference between the plaintiff’s violation of the pre-need and atneed policy and Tom Bornstein’s violation of the internment verification policy. However, “[t]his 

 

1

 The Employee handbook was introduced as a part of the record as Exhibit 7 to Nancy Trumbull’s 

Deposition and is cited by the Defendant in ¶¶ 14 and 55 of Defendant’s Statement of Undisputed Facts. 

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is a classic dispute of material fact, best left to the finder of fact to resolve, and on summary 

judgment should be construed in [the Plaintiff] favor. Wal-Mart Stores, Inc., 195 F. 3d at 290. 

Plaintiff presented evidence, albeit in her Response to the Defendant’s Statement of Facts, 

that Internment Verification Procedures are some of SCI’s most important because they prevent 

the burial of a body or remains in the wrong plot, which would levy a heavy financial cost upon 

SCI. (Ex. F, Pl.’s First Am. Resp. to Def.’s Statement of Undisputed Material Facts, ¶ 32). 

Furthermore, the Plaintiff cites deposition testimony from Leonard Hayes, that: (a) violation of 

internment Verification Procedures is a more egregious violation than incorrectly writing a preneed contract; (b) the Defendant has terminated quite a few employees for violating the 

Internment Verification Procedures; and (c) he cannot recall any employee being terminated for 

violating the Defendant’s at-need/pre-need procedures. (Ex. F, Pl.’s First Am. Resp. to Def.’s 

Statement of Undisputed Material Facts, ¶ 32). 

WHEREFORE, Plaintiff, NANCY TRUMBULL, prays that this Honorable Court grant 

plaintiff’s Rule 60 Motion for Relief from Judgment or Order or, in the alternative, grant plaintiff’s 

Federal Rule 59(e) Motion to Alter or Amend a Judgment. 

Respectfully submitted, 

By:/s/ Martin P. Greene

Martin P. Greene 

GREENE AND LETTS 

Attorneys for Plaintiff 

55 W. Monroe St., Suite 600 

Chicago, Illinois 60602 

312-346-1100 

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