UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ROBERT GREEN, 

 Plaintiff, 

 v. 

AMERICAN FEDERATION OF 

TEACHERS / ILLINOIS 

FEDERATION OF TEACHERS 

LOCAL 604, 

 Defendant. 

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No. 12 CV 1162 

Magistrate Judge Young B. Kim 

March 30, 2015 

 

MEMORANDUM OPINION and ORDER 

In 2010 Aurora East School District 131 (the “School District”) fired Plaintiff 

Robert Green from his teaching position. Green sought help from his union, 

Defendant American Federation of Teachers/Illinois Federation of Teachers Local 

604 (the “Union”), to file a grievance against the School District on his behalf. The 

Union refused. Green filed this action against the Union under Title VII of the Civil 

Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq. The district judge 

assigned to this case entered summary judgment in favor of the Union on July 24, 

2013. (R. 26.) On January 23, 2014, the Seventh Circuit reversed and vacated the 

summary judgment on appeal. (R. 38.) On October 23, 2014, the Union again 

moved for summary judgment. (R. 46.) After the parties fully briefed the motion, 

they jointly consented to the jurisdiction of this court on January 28, 2015. (R. 66); 

see 28 U.S.C. § 636(c). For the following reasons, the Union’s motion for summary 

judgment is denied: 
2 

Facts 

 As an initial matter, the court notes that there are instances in the parties’ 

Local Rule (“L.R.”) 56.1 statements and responses thereto in which the parties 

failed to cite to supporting materials.1 When moving for summary judgment, L.R. 

56.1(a) requires movants to provide a statement containing: 

short numbered paragraphs, including within each paragraph specific 

references to the affidavits, parts of the record, and other supporting 

materials relied upon to support the facts set forth in that paragraph. 

Failure to submit such a statement constitutes grounds for denial of 

the motion. 

L.R. 56.1(b) places a similar duty on the party opposing summary judgment. 

Failure to comply with L.R. 56.1 is sufficient ground for courts to strike or disregard 

unsupported facts. Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 

(7th Cir. 2004) (“we have . . . consistently and repeatedly held that a district court is 

entitled to expect strict compliance with Rule 56.1”) (citing Bordelon v. Chi. School 

Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000)); Cichon v. Exelon Generation 

Co., 401 F.3d 803, 809 (7th Cir. 2005) (district court decision to strike statements of 

fact for noncompliance with L.R. 56.1 is only reviewable for abuse of discretion); see 

also Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (applying strict 

compliance even to pro se litigants). 

 The most glaring problem with the Union’s statements of fact is that they are 

composed of lengthy paragraphs containing many different proposed facts but 

 

1 The court will refer to the Union’s L.R. 56.1 Statement of Material Facts as “Def.’s 

Facts ¶__,” to Green’s Statements of Additional Fact as “Pl.’s Facts ¶__,” to Green’s 

Response to Defendant’s Rule 56.1 Statement of Material Facts as “Pl.’s Fact Resp. 

¶__,” and to the Union’s L.R. 56.1(A)(3)(b) Reply as “Def.’s Fact Reply ¶__.”
3 

without any identifiable support. (See, e.g., R. 52-1, Def.’s Facts ¶¶ 3, 6, 12, 17, 19, 

23, 24.) L.R. 56.1(a) requires not only citations at the conclusion of each paragraph, 

but “within each paragraph specific references to the affidavits, parts of the record 

or other supporting material.” Just as often, the only citation offered by the Union 

is to a nearly identical paragraph in the affidavit of Gilbert Feldman, the Union’s 

attorney, but without proper foundation. (See R. 52-1, Def.’s Facts ¶¶ 14, 15, 17-

19.) Merely transposing statements from an affidavit does not make them proper if 

the declarant is attesting to hearsay or statements that are not admissible. 

Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (in a motion for summary 

judgment, factual assertions must be competent evidence that is admissible at 

trial); Bombard v. Fort Wayne Newspapers, 92 F.3d 560, 562 (7th Cir. 1996) (same). 

For example, Feldman testifies in his affidavit that the Union “consistently adhered 

to” certain policies, (R. 52-2, Feldman Aff. ¶ 14), or that it “had a practice with 

respect to bargaining unit employees,” (id. ¶ 19), but he fails to explain how he is 

qualified to testify to these facts. The Union did not provide any other testimony to 

support these factual assertions. In this district, unsupported factual statements 

are to be disregarded. See Menasha Corp. v. News Am. Mktg. In-Store, 238 F. Supp. 

2d 1024, 1029 (N.D. Ill. 2003). 

 At other times, the Union offers purely legal arguments in its statements of 

fact, sometimes interspersed with case citations. (See R. 52-1, Def.’s Facts ¶¶ 8, 9, 

26.) Legal arguments with case citations have no business in L.R. 56.1 statements. 

See Servin v. GATX Logistics, Inc., 187 F.R.D. 561, 562 (N.D. Ill. 1999); Porties v. 
4 

Gen. Elec. Co., No. 02 CV 3995, 2004 WL 1151594, at *4 (N.D. Ill. Apr. 28, 2004). 

As such, the court disregards the Union’s legal arguments in the statements of fact 

for purposes of sorting through its proposed facts that are allegedly not in dispute. 

 The Union complicates the identification of undisputed facts further by 

commingling supported facts with unsupported facts within its paragraphs. Green 

in turn misses an opportunity to make the court’s job easier in weeding out the 

disputed facts because many of Green’s objections also fall short of the requirements 

of L.R. 56.1(b) for lack of “specific references to the affidavits, parts of the record, 

and other supporting materials relied upon.” (See, e.g., R. 57, Pl.’s Fact Resp. ¶¶ 7, 

20, 21, 25, 27.) Wherever Green’s objections or denials of the Union’s statements of 

facts lack specific citations to the record, the court deems the Union’s facts to be 

admitted. See Howard-Ahmad v. Chi. Sch. Reform Bd. of Trs., 161 F. Supp. 2d 857, 

859 n.1 (N.D. Ill. 2001) (strictly enforcing L.R. 56.1 against unsupported responses 

to proposed facts); Waugaman v. Univ. of Chi. Hosps., No. 00 CV 2581, 2002 WL 

472278, at *3 n.6 (N.D. Ill. Mar. 28, 2002) (refusing to consider “wholesale” denials 

without supporting citations to the record). 

 A strict application of L.R. 56.1 to the statements in this case yields the 

following facts which are relatively straightforward, if occasionally wanting for 

context. Green began employment with the School District in August 1980 and he 

obtained tenured status three years later in June 1983. (R. 58, Pl.’s Facts ¶ 1.) 

However, Green’s employment was not without difficulties and his relationship with 

the Union was also strained. Since 2003 Green has filed several other actions 
5 

against the Union, including a charge of race discrimination with the Equal 

Employment Opportunity Commission (“EEOC”) and with the Illinois Department 

of Human Rights on September 26, 2005. (Id. ¶ 22; R. 52-1, Def.’s Facts ¶ 3.) 

On April 5, 2010, the School District fired Green from his position. (Id. ¶ 2.) 

In response, Green sought representation from the Union to contest his 

termination. (R. 58, Pl.’s Facts ¶ 5.) The Union referred Green’s request to its 

attorney, Feldman. (Id.) Feldman is also the attorney who represented the Union 

in several matters Green filed against the Union. (R. 52-1, Def.’s Facts ¶ 3.) On 

April 12, 2010, Feldman communicated the following to Green: 

I am writing in response to your request that my client, [the Union], 

provide you with representation in your pending dismissal case under 

the Teacher Tenure Act. After lengthy consideration, a determination 

has been made not to provide you with such representation for the 

following reasons. 

The Union and its legal counsel each have an adversarial relationship 

with you because you have repeatedly instituted litigation against the 

Union and we have represented the Union in these cases. 

This decision would be more complicated if the issue arose in the 

context of collective bargaining negotiations or the contract grievance 

procedure. That is because the Union is the legal owner of such 

proceedings and owes you a duty of fair representation with respect to 

them; and the law is that a Union can represent employees in these 

cases regardless of conflicting interests. However, you and not the 

Union own your claim under the Tenure Act, conflict of interest rules 

are applicable and the Union has no duty of fair representation with 

respect to your claim. 

(R. 58-4 at 2.) When he made this decision to deny Greens request, Feldman 

explains in his affidavit that he was unaware of Green’s 2005 EEOC charge of race 

discrimination against the Union. (R. 52-2, Feldman Aff. ¶ 25.) 
6 

After Feldman denied his request for representation, Green requested that 

the Union provide and pay for an attorney other than Feldman to represent him at 

his termination hearing, but the Union denied this request as well. (R. 58, Pl.’s 

Facts ¶ 8.) Green alleges that the Union provided representation to white and 

female employees in Tenure Act cases, all of whom were represented by Feldman. 

(Id. ¶ 21.) The Union admits that Feldman represented white teachers who had 

been terminated, but denies that he did so “through the union.” (R. 62, Def.’s Fact 

Reply ¶¶ 9-10.) In support of his assertion that the Union does represent teachers 

in Tenure Act cases, Green points to an Illinois State Board of Education Opinion 

and Decision (Arb. Ref. 06.341) in a Teacher Tenure Act case that explains “the 

teachers in the District are represented by the District 211 Teachers Union, 

IFT/AFT,” and lists Feldman as the attorney for the teacher. (R. 58-1, Green Decl. 

¶ 6 (citing R. 58-5, Ex. D at 1, 3).) The Union disputes this proposed fact, (R. 62, 

Def.’s Fact Reply ¶ 12), basing its objection solely on Feldman’s affidavit. The court 

does not consider this objection as proper for purposes of this motion because 

Feldman fails to establish that he has personal knowledge and is qualified to testify 

about the Union’s practices and policies. See Wyche v. Ill. Dep’t of Human Servs., 

No. 06 CV 2547, 2008 WL 4866354, at *7 (N.D. Ill. June 3, 2008) (affidavit of 

attorney who lacks personal knowledge is not admissible at the summary judgment 

stage); Roloff v. Sullivan, 772 F. Supp. 1083, 1088-89 (N.D. Ind. 1991) (“[A]ffidavits 

of attorneys who lack personal knowledge of information related in supporting 

documentation are not entitled to consideration on a summary judgment motion.”). 
7 

Analysis 

 Cobbling together the surviving facts after applying L.R. 56.1, the legal 

analysis on the claim of unlawful retaliation2 in this case is fairly straight forward. 

Summary judgment is appropriate when “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). For a claim to survive a summary judgment challenge, “a nonmovant 

must be able to show that a reasonable jury could return a verdict in [his] favor.” 

Benuzzi v. Bd. of Educ. of City of Chi., 647 F.3d 652, 662 (7th Cir. 2011). Courts 

must view the evidence in the light most favorable to the nonmovant, but “the 

nonmoving party must come forward with specific facts showing that there is a 

genuine issue for trial.” Armato v. Grounds, 766 F.3d 713, 719 (7th Cir. 2014) 

(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986)). And, “[w]here the record taken as a whole could not lead a rational trier of 

fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Id. 

 Green may prove retaliation directly or indirectly. See Greengrass v. Int’l 

Monetary Sys., 776 F.3d 481, 485 (7th Cir. 2015) (citing Majors v. Gen. Elec. Co.,

714 F.3d 527, 537 (7th Cir. 2013)). Here, Green opts for the direct method, which 

requires him to demonstrate that: (1) he engaged in statutorily protected conduct; 

(2) he was subjected to an adverse employment action; and (3) a causal connection 

exists between the two. Greengrass, 776 F.3d at 485. If a rational trier of fact could 

 

2 The court declines to consider any summary judgment issues, if any, pertaining to 

Plaintiff’s claims of race and sex discrimination because the Union failed to submit 

adequate undisputed facts or developed arguments warranting this court’s analysis. 
8 

conclude and find that the Union retaliated against Green, summary judgment is 

not appropriate. See Armato, 766 F.3d at 719. 

 There are no controversies over the first two elements for purposes of 

assessing summary judgment. As to the first element, Green’s discrimination filing 

against the Union with the EEOC constitutes statutorily protected conduct. See 

Tomanovich v. City of Indianapolis, 457 F.3d 646, 663 (7th Cir. 2006) (there is “no 

dispute” that filing an EEOC discrimination charge is a statutorily protected act). 

As to the second element, Green must show that a reasonable employee would have 

found the Union’s action to be “materially adverse.” Id. In the context of a Title VII 

retaliation claim, “[a] ‘materially adverse action’ . . . means any conduct that might 

dissuade a reasonable employee from lodging a discrimination charge.” Metzger v. 

Ill. State Police, 519 F.3d 677, 684 (7th Cir. 2008). And as the Seventh Circuit 

already explained in this case on appeal, “[a] claim against a labor organization 

under § 2000e-2(c)(1) or § 2000e-3(a) does not depend on showing that either the 

employer or the union violated any state statute or contract.” Green v. Am. Fed. of 

Teachers/Ill. Fed. of Teachers Local 604, 740 F.3d 1104, 1107 (7th Cir. 2014). The 

key inquiry in this case therefore centers on the third element and whether the 

Union had “actual knowledge” of Green’s protected activity. See Luckie v. Ameritech 

Corp., 389 F.3d 708, 715 (7th Cir. 2004). 

 The Union argues that Green has produced “no evidence” of retaliation. 

(R. 52-4, Def.’s Mem. at 8-9.) The court disagrees. Green presents adequate 

evidence to show that he filed an EEOC charge against the Union, (R. 58, Pl.’s Facts 
9 

¶ 22), that he was refused representation in his Tenure Act case, (id. ¶ 5), and that 

the Union refused his request for legal representation because he had “repeatedly 

instituted litigation against the Union,” (R. 58-4 at 2). On its face─drawing 

reasonable inferences in favor of Green─Feldman’s letter states that the Union’s 

motivation for not providing Green with representation was directly related to 

Green’s litigation against the Union. (Id.) But because Green’s EEOC charge 

against the Union predates Feldman’s letter by almost five years and because the 

letter does not specifically refer to the EEOC charge, a factual question exists as to 

whether the Union was motivated by that charge when it declined to provide him 

with legal representation. Another reading of the letter is that the Union chose not 

to provide representation to Green because of their conflict of interest and not 

merely because he had filed claims against the Union in the past. But when 

considering a summary judgment motion “[a] court may not . . . choose between 

competing inferences or balance the relative weight of conflicting evidence; it must 

view all the evidence in the record in the light most favorable to the non-moving 

party and resolve all factual disputes in favor of the non-moving party.” Hanson v. 

Fincantieri Marine Group, 763 F.3d 832, 836 (7th Cir. 2014). 

 Here the factual question cannot be resolved in favor of the Union as a 

matter of law. Although Feldman did not specifically refer to the EEOC charge in 

his letter, a reasonable inference can be drawn that the EEOC charge was also part 

of the litigation he referred to in the letter. The fact that Feldman now testifies 

that he was not aware of the EEOC charge does not entitle the Union to summary 
10 

judgment. There exists a factual dispute that can only be resolved by a fact-finder 

after weighing Feldman’s credibility. 

 To the extent that the Union believes it is entitled to summary judgment on 

any other bases, it fails to adequately explain why, and the factual record is too 

broken to assess the relative merit of these arguments. The relevant portions of the 

Union’s motion contain zero citations to the record in this case, and only a few 

minimally-tailored citations to cases that set forth the applicable legal standard for 

summary judgment. For example, the Union says that it had a “policy which it 

uniformly enforced not to provide lawyers to bargaining unit members in civil 

cases,” (R. 52-4, Def.’s Mem. at 6), but fails to provide any adequate evidence to 

support this claim. Legal arguments made without any citations to the record and 

without adequate support in case law are “perfunctory, conclusory, and 

undeveloped, and need not be considered.” Donnelly v. Chi. Park Dist., 417 F. 

Supp. 2d 992, 1006 (N.D. Ill. 2006) (citing Estate of Moreland v. Dieter, 395 F.3d 

747, 759 (7th Cir. 2005)). Furthermore, “underinclusive and skeletal presentations 

impermissibly shift the responsibility to the court to do the lawyer’s work and to 

explicate the arguments that the briefs have left undeveloped.” Paulcheck v. Union 

Pacific R. Co., No. 09 CV 4226, 2010 WL 1727856, at *2 (N.D. Ill. Apr. 29, 2010) 

(citing Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir. 1987)). 

Lacking sufficient direction from the Union, the court will not seek out other bases 

for the Union’s summary judgment motion. 
11 

 As an afterword, the court identifies an issue the Union must address in the 

near future. The Union’s motion demonstrates that Feldman will be a material 

witness at trial. The guiding principles for attorneys acting as witnesses are found 

in the American Bar Association’s Model Rules of Professional Conduct (“ABA 

Model Rules”). See L.R. 83.50; Walton v. Diamond, No. 12 CV 4493, 2012 WL 

6587723, at *1 (N.D. Ill. Dec. 14, 2012). ABA Model Rule 3.7(a), entitled “Lawyer as 

Witness” provides that: 

(a) A lawyer shall not act as advocate at a trial in which the lawyer is 

likely to be a necessary witness unless: (1) the testimony relates to an 

uncontested issue; (2) the testimony relates to the nature and value of 

legal services rendered in the case; or (3) disqualification of the lawyer 

would work substantial hardship on the client. 

This rule is identical to Illinois Rule of Professional Conduct 3.7. See Ill. R. Prof’l 

Conduct 3.7. Pursuant to these professional responsibility rules, the Union is 

entitled to have Feldman assist with the preparation of this case for trial, but he 

will most likely be disqualified to serve as trial counsel. See Mercury Vapor 

Processing Techs. v. Vill. of Riverdale, 545 F. Supp. 2d 783, 789 (N.D. Ill. 2008) 

(“[E]ven if [the attorney] later becomes a witness at trial or in an evidentiary 

proceeding, he is not prohibited from conducting discovery, drafting motions, or 

serving in some other capacity at this stage in the litigation.”) 

 
12 

Conclusion 

 For the foregoing reasons, the Union’s motion for summary judgment is 

denied. 

 ENTER:

 ____________________________________ 

 Young B. Kim 

 United States Magistrate Judge