on June 2, 2000. At all times relevant to this case, Liorens worked as a phone clerk in
the Wire Room, also known as the 24-hour trading desk. George Recchia was in
charge of the Wire Room and John Scriba was the Wire Room manager who
supervised Llorens’ work.? Liorens’ 56.1 Stmt., 20. According to Llorens, her job was
to “transfer various customer phone orders to writing, and then to communicate them by
computer to the trading floor to be filled." Liorens’ 56.1 Stmt., 19. At the time of her
termination, Llorens was not given a reason for her termination. Llorens’ Aff., 16.

RCG states that Llorens was fired “because of her refusal to accept responsibility for
her errors and therefore be rehabilitated so they did not happen again. Her
belligerence, insubordination and her over-all bad attitude was dragging down her entire
department.” Recchia's Aff., J11. Llorens contends that she did take responsibility for

her errors and that she was not insubordinate and did not have a bad attitude. Llorens'

Aff., 1120, 22, 23.
Legal Standard

Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp v. Catrett,

"According to John Scriba’s deposition, there were two shifts in the Wire Room, day and
night, and separate managers for each shift. Scriba Dep., p. 28. From before 1996 until
March, 2003, Scriba was the day manager. /d. In March, 2003 Scriba became the night
manager and Natalie Davis became the day manager. /d. at 29. However, there were times
during the day when both managers were present and shared managerial control. /d. at 30-31.
At all times relevant to this case Llorens worked the day shift.

4



which contained conclusions, rather than facts. Plaintiff's 56.1 statement included 62
additional facts, however, a majority of those facts were not relevant to her only viable
claim, unlawful termination. Because of the scant record, a genuine issue of material
fact could exist, making summary judgment for either party improper. See Sawyer v.
United States, 831 F.2d 755, 760 (7th Cir. 1987) (“[B]ecause the evidentiary record was
incomplete and genuine issues of material fact could exist... summary judgment is
inappropriate.”).

From the parties’ submissions, we cannot determine RCG’s legitimate
employment expectations. In its memorandum in support of its motion, RCG states that
“common sense dictates that one of the basic requirements of any employment is
acceptance of responsibility." RCG’s Reply B8r., p. 5. Plaintiff disagrees stating that she
was never informed that acceptance of responsibility was a requirement of her
employment. Liorens’ Resp. Br., p. 6. Defendant has not provided any evidence -
through documents, affidavits, or depositions - that acceptance of responsibility was in
fact a requirement of employment at RCG. Both parties argue the issues in their briefs,
but fail to provide any factual citations to the record. Whether acceptance of

responsibility was an employment requirement is a question of fact for the jury.

Furthermore, we cannot determine which RCG employees, if any, were similarly
situated to Llorens. A similarly situated employee is someone similarly situated with
respect to performance, qualifications and conduct. Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617-618 (7th Cir. 2000). Similarly situated employees also usually deal

with the same supervisor. /d. Neither party's 56.1 statement specifically addresses


McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Once the plaintiff succeeds in establishing a prima facie case of discrimination,
the burden shifts to the defendant to provide a legitimate, non-discriminatory reason for
its action. McDonnell Douglas Corp., 411 U.S. at 802-803. If the defendant meets its
burden, the burden shifts back to the plaintiff to show that the defendant's stated
reason for the adverse action is pretextual, that is, a lie, or not the real reason for its
action. To prove pretext, the plaintiff must show: 1) defendant's explanation for its
actions had no basis in fact; 2) the explanation was not the real reason; or 3) the
reason given was insufficient to support the action. See Hoffman-Dombrowski v,

Arlington International Racecourse, Inc., 254 F.3d 644, 652 (7th Cir. 2001).
Analysis

Local Rule 56.1 sets out certain requirements for filing and responding to a
motion for summary judgment. The purpose of Rule 56.1 is to “assist the court in
identifying the material facts that entitle the movant to judgment as a matter of law, and
determining whether those material facts are in dispute. To that end, the rule requires
the parties to point the court to the specific undisputed evidence in the record that
supports the party's position on each of these questions.” Ford v. Lumbermens Mutual
Company, 197 F.R.D. 365, 366 (N.D. Ill. 2000). Rule 56.1 statements are road maps
and “without them, the court should not have to proceed further.” Waldridge v.
American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994). The road maps we received

were inaccurate, incorrect, and provided absolutely no direction.
Defendant's 14-paragraph 56.1 statement utterly fails in its purpose. It is

6


477 U.S. 317, 322-23 (1986). The moving party has the burden of demonstrating the
absence of genuine issues of material fact. Celotex, 477 U.S. at 323. “A genuine issue
of material fact exists only if there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party.” Alexander v. Dept. of Health and Family
Services, 263 F.3d 673, 680 (7th Cir, 2001). When making this determination, we
review the record in the light most favorable to the nonmovant, and draw all reasonable
inferences in her favor. Id. “Rule 56(c) mandates summary judgment when the
nonmoving party fails to establish the existence of an element essential to its case and
on which that party will bear the burden of proof at trial." Jefferson v. City of Chicago,
No. 97 C 4895, 2000 WL 1368036 (N.D.III. Sept. 15, 2000)(citing Anderson, v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)).

In order to prevail on her unlawful termination claim, Llorens may use either
direct or indirect evidence to demonstrate that the defendant discriminated against her
on the basis of her race. See Simmons v. Chicago Bd. Of Ed., 289 F.3d 488, 492 (7th
Cir., 2002). In this case, as in most employment discrimination matters, there is no
direct, or “smoking gun” evidence, so plaintiff must proceed under the indirect method
first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the
McDonnell Douglas method, plaintiff must first make a prima facie case of
discrimination. In an unlawful termination case, this involves demonstrating that: 1) she
was a member of a protected class, 2) at the time of her discharge she was meeting
her employer's legitimate expectations, 3) she was discharged, and 4) that the

employer treated similarly situated employees not in the protected class more favorably.


case is not ripe for decision on summary judgment. RCG’s 56.1 statement only
contains evidentiary cites to affidavits and depositions from its own employees. RCG's
56.1 statement does not reference any of the plaintiff's evidence.® This should have
been a red flag to RCG that this case was going to come down “to a swearing contest
that would necessarily doom any Rule 56 motion.” Grace v. Ansul, Inc., 61 F.Supp.2d

788, 794 (N.D.III. 1999).

The most glaring example of the swearing contest is defendant's assertion that
“Llorens was fired because of her refusal to accept responsibility for her errors and
refused [sic] to accept rehabilitation to limit errors in the future and her insubordination
that affected her entire department.” Recchia’s Aff., 11. Obviously, plaintiff contests
the reasons for her termination. In her affidavit, Llorens states that “at all times during
her employment she did take responsibility for errors that she made,” “did not have a
bad attitude,” “was not dragging down the other employees in her department,” and
“was not insubordinate.” Liorens’ Aff., 1/72, 74, 75. This is a classic battle of contrary
affidavits and neither party provides any supplemental evidentiary support for its
respective position. This is an obvious dispute of material fact that precludes summary

judgment. See Grace, 61 F.Supp.2d at 794.

Finally, the record before us is not complete and cannot provide an adequate
basis on which to rule on plaintiff's unlawful termination claim as a matter of law. As

stated above, defendant's 56.1 statement only contained 14 paragraphs, a majority of

Sit does not appear as through Llorens was deposed in this case. RCG does not cite
her deposition and Llorens relies on her own affidavit, not deposition, as support for her 56.1
statement.


Minute Orde? Form (06/97)

United States District Court, Northern District of Illinois

Rameetasieiaees | Michael T. Mason | nyo
CASE NUMBER 02 C 5792 DATE 4/20/2004
CASE : Llorens v. Rosenthal Collins Group, LLC
TITLE
[ls the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
q) oO Filed motion of [ use listing in “Motion” box above.]
(2) im) Brief in support of motiondue
(3) oO Answer brief to motion due. . Reply to answer briefdue___.
(4) oO Ruling/Hearing on setfor_ at
(5) a Status hearing[held/continued to] [set for/re-set for] on setfor_____at
(()) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__—ssat_—
(7) Oo Trial[set for/re-set for]on__—_—aat
(8) go [Bench/Jury trial] [Hearing] held/continued to__at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) (ClLocal Rule 41.1 CUFRCP41(a)(1) [OI FRCP41(a)(2).

(10) WW [Otherdocket entry] As stated in the attached Memorandum Opinion and Order, defendant’s motion
for summary judgment [20-1] is denied and plaintiff's motion to deem facts admitted [26-1] is granted.
Status hearing set for 5/6/04 at 9:00 a.m. Enter Memorandum Opinion and Order.
(1) @ For further detail see order attached to the original minute order.
No notices required, advised in open court.
. 2
No notices required. aber of ties
7 | Notices mailed by judge’s staff.
Notified counsel by telephone. APR 2 3 2004
Docketing to mail notices.
Mail AO 450 form. LYNGa

Copy to judge/magistrate judge.

courvoom MMe} id C2 ode
KF deputy’s
initials

‘Date/time received in

~, central Clerk’s Office



Conclusion

Because defendant has failed to comply with Local Rule 56.1, and because the
parties’ submissions indicate disputed issues of material fact, defendant's motion for
summary judgment is denied. Plaintiffs motion to deem facts admitted is granted. It is

so ordered.

ENTER:

MICHAEL 7 MASON

United States Magistrate Judge

Dated: April 20, 2004

11



whether there were any other RCG employees similarly situated to plaintiff. Llorens
apparently assumes that Jim Kenney, Jim Maloney, Teena Owens, Myrna Gonzalez
and John Linkowicz were similarly situated employees by virtue of being phone clerks in
the Wire Room in 1999 and 2000. Liorens’ 56.1 Stmt., 1167-71. However, a brief
review of John Scriba’s deposition transcript shows that the Wire Room has a day shift
and a night shift, with different managers for both shifts. Neither party's 56.1 statement
addresses which shift Llorens worked’, much less the shifts of allegedly similarly
situated employees. Additionally, to determine who, if anyone, was similarly situated,
we must be able to determine whether another employee was treated more favorably
for similar conduct, or that no other employee engaged in similar conduct. The record
is void of any evidence as to whether any other employees were insubordinate or failed
to accept responsibility for their errors. Again, leaving open that possibility that a

genuine issue of material fact could exist.

7 We learned that Llorens worked the day shift by reading Scriba’s deposition in its
entirety. That fact should have been included in the parties’ 56.1 statements.

10


primarily comprised of conclusory statements and is woefully lacking in “facts” and
supporting materials.° In fact, RCG's 56.1 statement does not contain any facts relating
to two of the four required elements in plaintiffs case. RCG's 56.1 statement does not
contain any facts related to what constitutes its legitimate employment expectations and
whether it treated employees similarly situated to Llorens and not in her protected class

more favorably.*

Furthermore, RCG attached six exhibits, numbered 1-6, in support of its 56.1
statement. However, RCG only referenced exhibits 1-4 in its 56.1 statement. RCG
repeatedly referred to exhibit 4, when it meant exhibit 5 or 6. Even more disturbing,
exhibits 4-6 were suppose to be excerpts from Natalie Davis’ deposition transcript, but
were actually excerpts from John Scriba’s deposition transcript. RCG never provided us
with a copy of Natalie Davis’ deposition transcript. These violations alone justify

striking RCG's 56.1 statement and denying its motion for summary judgment.

RCG's record cites in support of its 56.1 statement are even more telling that this

3For example, paragraph 8 states “the wire room where Ms. Llorens worked is ethnically
diverse..." Paragraph 9 states “[e]very department at RCG is racially diverse.” Paragraph 13
states “[nJone of plaintiff's supervisors discriminated against her.” Paragraph 14 states “RCG
does not discriminate against any of its employees.” These statements are conclusions, not
facts, for the purpose of summary judgment.

‘Plaintiff responded to defendant's 56.1 statement and included additional undisputed
facts. Defendant did not respond to plaintiff's additional facts, precipitating plaintiff's motion to
deem those facts admitted. Plaintiff's motion to deem her facts admitted is GRANTED.
However, we note that plaintiff filed her motion pursuant to Rule 56.1(b) instead of the proper
56.1(a). 56.1(a) deems facts set forth by the opposing party, Llorens, admitted uniess
controverted by the statement of the moving party, RCG.

S5However, plaintiff did attach a copy of Davis’ deposition to her 56.1 statement of
additional facts.


Llorens has not provided any basis for such a claim, therefore, her failure to promote
claim is also dismissed with prejudice.

Finally, before we turn to Llorens’ unlawful termination claim, we must address
the retaliation issue raised in Llorens’ response to the motion for summary judgment. In
her response, Llorens appears to argue that she has made a claim for unlawful
retaliation in violation of federal law. We find no such claim in the record. Plaintiff's
complaint, which her counsel chose not to amend, does not mention the term
retaliation, or provide any facts that would put defendant on notice of a possible
retaliation claim. Although this is a notice pleading jurisdiction, “it still is necessary that
something be stated that apprises a defendant of the substance of the allegations”
against it. Uptown People's Community Health Services Bd. of Directors v. Board of
Com'rs of Cook County, 647 F.2d 727, 739 (7th Cir. 1981). Notice pleading still
requires fair notice. /d. Additionally, “a plaintiff may not amend [her) complaint through
arguments in [her] brief in opposition to a motion for summary judgment.” Shanahan v.
City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996). Therefore, Llorens'’ retaliation claim

is barred.
Liorens’ Termination Claim

Now we address RCG’s motion for summary judgment as to Llorens' sole
remaining claim in this case, unlawful termination in violation of Title Vil and §1981.
RCG is a registered futures commission merchant in the business of clearing
commodity futures trades and brokering customer's commodity futures orders. Llorens

is an African-American female employed by RCG from 1993 until she was terminated



the complaint and filed it with this court. After a careful review of the complaint, it
appears that Llorens is alleging unlawful termination and failure to promote based on
color and race discrimination in violation of Title VII of the Civil Rights Act of 1964 and
42 U.S.C. §1981, and a violation of 42 U.S.C. §1983 by a state or local governmental
agency. As the sole factual support for these claims, Llorens provides the following
unintelligible paragraph in her complaint; “I was alleges [sic] discharged for”
insubordination. | was not at anytime insubordinate. John Scriba yelled at me and
throw [sic] something at me.” Compl., 113. The complaint does not contain any
reference to a claim for retaliation, or give any notice of the possible basis for a failure
to promote claim.

RCG filed an answer to the complaint, and did not move to dismiss any of
Llorens’ claims. Llorens pled her §1983 claim by checking the “yes” box below
paragraph 10 of the complaint, which states “[t]he plaintiff is suing the defendant, a
state or local government agency, for discrimination on the basis of race, color, or
national origin (42 U.S.C. §1983).” Compl., $10. Inexplicably, instead of moving to
dismiss this claim and affirmatively stating that RCG is not a state or local government
agency, RCG answered paragraph 10 by stating “[dJefendant admits that Plaintiff is
suing for discrimination and affirmatively states that it did not discriminate against
Plaintiff in any manner whatsoever, including Plaintiff's color, race and national origin.”
Answer, 10. Because RCG is not a state or local government agency, plaintiff's §1983
claim is dismissed with prejudice.

Next, in paragraph 12 of her complaint, Llorens pled a failure to promote claim,

by checking a box next to the phrase “failed to promote the plaintiff." Compl., 112.
2


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SHELLY LLORENS, )
Plaintiff,
vs. } No. 02 C5792
ROSENTHAL COLLINS GROUP, LLC, } Magistrate Judge Mason
Defendant. } ;

MEMORANDUM OPINION AND ORDER
Michael! T. Mason, United States Magistrate Judge:

Plaintiff, Shelly Llorens (“Llorens’), filed a pro se suit against her employer,
Rosenthal Collins Group, LLC (“RCG’), alleging various types of employment
discrimination. Thereafter, the court granted her request for appointment of counsel,
with leave to file an amended complaint. Plaintiff's counsel declined to file an amended
complaint, therefore, plaintiff is bound by the allegations in the August 14, 2002
complaint.’ At the close of discovery, RCG moved for summary judgment. For the
reasons set forth in this opinion, we deny RCG'’s motion and narrow the scope of issues
to be litigated at trial.

Preliminary Issues

Llorens’ complaint is a form employment discrimination complaint available at the

office of the Clerk of the U.S. District Court. The form complaint contains sixteen

numbered paragraphs, with checkboxes and fill in the blank spaces. Llorens filled out

*Plaintiff did not attach a copy of her EEOC charge or right to sue letter to her federal
complaint. The parties did not address this issue in their cursory briefing on this motion for
summary judgment, so neither will we,