UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 

RICKY FREDERICK, ROBERT LEIS, and

ROBERT MARTIN, 

Plaintiffs,

v.

ABBOTT LABORATORIES,

Defendant.

No. 03 C 5038

Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiffs Ricky Frederick, Robert Leis, and Robert Martin were previously employed by

Defendant Abbott Laboratories ("Abbott") as heating ventilation air conditioning ("HVAC")

mechanics. The Plaintiffs were terminated on February 20, 2003, and later filed a two-count

Complaint against Abbott. Count I alleges that the Plaintiffs were discriminated against based on

their gender in violation of Title VII when they were terminated. Count II alleges that Abbott

intentionally terminated the Plaintiffs' employment for the purpose of interfering with their

medical and pension benefits in violation of the Employee Retirement Income Security Act

("ERISA"). Abbott now moves for summary judgment.

I. Background

During the relevant time period, Abbott employed approximately twelve HVAC

mechanics in its Corporate Engineering Division. These mechanics were tasked with completing

work orders assigned to them by the HVAC Group Leader, Pete DeBree. Some of these work

orders were preventative maintenance ("PM") work orders generated by a computer on a set

schedule, which required the HVAC mechanic to inspect airhandling units, read the unit's
2

manometers (devices used to measure air pressure across a filter), and record the readings in a

filter performance log book. When an HVAC mechanic completed a PM work order, he was

required to sign and date the work order under the words "Work Order Completed By,"

indicating that the work order had been completed. Directly beneath this section were the words

"Work Order Not Completed," followed by the word "Reason." If an HVAC mechanic could not

locate the log book to record the manometer readings, he was permitted to record the manometer

readings on a sheet of paper, staple it to the work order and transfer the readings to the log book

at a later date. The two filter performance log books, one for production areas and one for office

space, were three-ring binders containing log sheets listing various equipment by building and

floor. HVAC mechanics, including the Plaintiffs, received annual Good Manufacturing Practices

("GMP") training on how to properly complete a work order. Kimberly Richtmyre, Supervisor of

the HVAC group, conducted monthly HVAC group meetings where HVAC mechanics could ask

questions about their work orders.

In early February 2003, the Federal Drug Administration ("FDA") conducted an audit of

one of Abbott's divisions. In anticipation of the FDA's audit, Richtmyre retrieved the log book,

discovered that some of the log book data was missing and informed David Taylor (Section

Manager) and Daniel Fruehe (Manager of Maintenance) of the problem. Fruehe notified his

boss, Patrick Killian (Director of Plant Maintenance), about the missing log book data, which by

that time the FDA had requested. Killian contacted Lynne Faragher (Human Resources

Manager), informing her of the FDA's request, the missing data, and the possibility that there had

been falsification of documentation. This information was then relayed to Faragher's boss, Mark

Naidicz, Human Resources Director. 
1

 According to Richtmyre, Galauskas had recorded his readings in the log book, but did

not sign and date the entries and missed one reading. (See Richtmyre Dep. Ex. 33). Galauskas

was placed on six-month probation for failing to sign and date his log-book entries.

2The Plaintiffs were accused of signing six work orders as complete without recording the

readings in the filter performance log book. The work orders contained an instruction requiring

the HVAC mechanic to document the manometer reading in the filter performance log. Of the

six work orders in question, Plaintiff Martin was responsible for completing two of them, dated

complete 7/4/02 and 7/26/02; Plaintiff Leis was responsible for two, dated complete 8/15/02 and

12/6/02; and Plaintiff Frederick was responsible for one, dated complete 11/6/02.

3

Richtmyre obtained the corresponding work orders that required the HVAC mechanics to

record the manometer readings in the log book. The work orders were signed as complete by

four HVAC mechanics: the three Plaintiffs and Christopher Galauskas.1 On February 6, 2003,

Naidicz instructed Killian, Fruehe, and Faragher to interview the four mechanics and obtain

written statements from them. The Plaintiffs admitted that they had signed the work orders as

complete but had not recorded the manometer readings in the filter performance log book.2

Abbott terminated the Plaintiffs, on February 20, 2003, for falsification of documentation. The

Plaintiffs allege that their Group Leader, DeBree, and the Scheduler / Planner, Dennis Hauser,

had previously told them that the log books were no longer being used. Also, the Plaintiffs point

out that the work orders contained a line which read "Log Entry Required: N."

Elizabeth McGruder was an apprentice in Abbott's Skilled Trades Education Program

("STEP") training to be an HVAC mechanic. As a STEP employee, McGruder was required to

work with full-time HVAC mechanics during the day and attend classes at a local college at

night. McGruder received her work assignments from HVAC Group Leader DeBree. The

Plaintiffs allege that McGruder was treated more favorably because she was not terminated

following the discovery of the missing filter performance log book data. 
4

II. Analysis

A. Count I - Gender Discrimination

Summary judgment is proper when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322 23 (1986). In determining whether any genuine issue of material fact exists, I must construe

all facts in the light most favorable to the non-moving party and draw all reasonable and

justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A

genuine issue of fact exists only when, based on the record as a whole, a reasonable jury could

find for the non-movant. Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999).

In the absence of direct evidence of gender discrimination, as is the case here, plaintiffs

must present indirect evidence of discrimination through the three-part burden-shifting test

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the burdenshifting method, the plaintiff has the burden of establishing a prima facie case for discrimination. 

Id. To establish a prima facie case, the plaintiff must show that (1) he was a member of a

protected class; (2) he was qualified for the job in question or was meeting his employer's

legitimate performance expectations; (3) he suffered an adverse employment action; and (4) the

employer treated similarly situated persons not in the protected class more favorably. Bragg v.

Navistar Int'l Transp. Corp., 164 F.3d 373, 376 (7th Cir. 1998). 

If the plaintiff makes out his prima facie case, the burden shifts to the defendant to

present a legitimate, non-discriminatory basis for the adverse action. Cowan v. Glenbrook Sec.

Servs., 123 F.3d 438, 445 (7th Cir. 1997); Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997,

1007 (7th Cir. 2000). If the defendant is able to do so, the burden shifts back to the plaintiff to
3

 With respect to the first element (that the male Plaintiffs are part of a protected class in

a gender discrimination suit), this may be somewhat of an oversight on the part of Abbott. I may

be wrong, but it seems that Plaintiffs may have a difficult time establishing the existence of

background circumstances, which would suggest that the Defendant is one of those unusual

employers who discriminates against the majority. Mills v. Health Care Serv. Corp., 171 F.3d

450, 456-57 (7th Cir. 1999). 

5

establish that the proffered reason is merely a pretext for discrimination. Cowan, 123 F.3d at

445; Miller, 203 F.3d at 1007.

1. The Plaintiffs' Prima Facie Case 

Since the parties do not dispute that elements (1) and (3) of the prima facie test had been

met, I consider here only whether the Plaintiffs were meeting Abbott's legitimate expectations

and whether McGruder was a similarly situated female employee who received more favorable

treatment. 3

 First, Abbott argues that summary judgment is appropriate because the Plaintiffs

cannot establish that they were meeting Abbott's legitimate expectations. Abbott claims that the

Plaintiffs falsified documentation when they signed work orders as complete but did not record

the manometer readings in the filter log book. Plaintiffs neither made any notation on the work

orders indicating that the work orders could not be completed nor recorded the manometer

readings on a separate sheet of paper to be transferred into the log book at a later date. Abbott

maintains that it had a legitimate expectation that the Plaintiffs would not sign work orders that

state that they had performed work that they had not, in fact, performed. 

In response, the Plaintiffs make four brief arguments. First, the Plaintiffs indicate that

prior to their termination, each of the three Plaintiffs had consistently received positive

performance evaluations from Group Leader DeBree and Supervisor Richtmyre. Second, the

Plaintiffs assert that, as HVAC Group employees, they attended annual GMP training conducted
6

by Abbott's Quality Group and monthly meetings conducted by DeBree and Richtmyre where the

HVAC employees were instructed on how to complete their assigned work orders. During these

meetings, the Plaintiffs say they were explicitly told to sign and date the work orders upon 

completion without making any other marks on the work orders. Third, the Plaintiffs claim that,

in late spring or early summer of 2002, they were explicitly instructed by DeBree and Planner /

Scheduler Hauser that the filter performance log books were no longer being used and that the

filter log readings did not need to be recorded until further notice. The Plaintiffs maintain that

neither DeBree nor Hauser ever informed them that the log book procedure was being reinstituted. Finally, the Plaintiffs point to a line contained on the work orders that reads "Log

Entry Required: N." The Plaintiffs claim that they understood this line to mean that they were

not required to record their manometer readings in the filter performance log book. 

The fact that the Plaintiffs had received positive performance evaluations is not sufficient

evidence that they were meeting their employer's legitimate expectations. Peele v. Country Mut.

Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002) (quoting Karazanos v. Navistar Int'l Transp. Corp.,

948 F.2d 332, 336 (7th Cir.1991) (In ascertaining whether a plaintiff has met his employer's

legitimate expectations, the issue is not the employee's past performance, but "whether the

employee was performing well at the time of his termination."). Furthermore, employers

generally have a legitimate expectation that its employees will not falsify documents. See Hiatt

v. Rockwell Int'l Corp., 26 F.3d 761, 767 (7th Cir. 1994); Contreras v. Suncast Corp., 129 F.

Supp. 2d 1173, 1180-81 (N.D. Ill. 2001). 

However, the Plaintiffs' allegations that, in late spring or early summer of 2002, they were

explicitly instructed by DeBree and Hauser that the filter performance log books were no longer
4

 At her deposition, Richtmyre testified that the HVAC Group changed the work order

policy after the Plaintiffs were terminated, in March or April of 2003, by eliminating the log

book entry requirement and allowing HVAC mechanics to record the manometer readings

directly on the work order. (Richtmyre Dep. at 87-88).

7

being used and that the filter log readings did not need to be recorded, if true, would rebut

Abbott's claim that they were not meeting the company's legitimate expectations. Stripped down,

this is a case of one party's word against the other. DeBree denies telling any HVAC mechanics

that the filter performance log book was no longer being used or that the manometer readings

were not to be recorded. Richtmyre also denies that she discontinued the use of the filter

performance log book prior to the Plaintiffs' termination.4 

Plaintiff Martin stated that in June or July of 2002, DeBree informed him that filter log

readings were no longer being taken and recorded and then took his filter log book. (Martin Dep.

at 58-62). The reason given by DeBree for the discontinuation of the log book entry procedure,

according to Martin, was that the HVAC mechanics' time could no longer be billed to the

department in which the equipment being recorded was located. The next day, Martin inquired

about the filter log readings with Planner / Scheduler Hauser who likewise informed Martin that

the filter performance logs were no longer being recorded. Plaintiff Leis testified that, sometime

in 2002, DeBree informed him and Plaintiff Frederick that the log books were no longer being

used. (Leis Dep. at 66-69). Leis also stated that he repeatedly asked both DeBree and Hauser for

the log books when he received a work order instructing him to record a filter log reading. 

Other HVAC Group employees also testified that the filter log books were no longer

being used. Matt Walker, HVAC mechanic, claims he was instructed by DeBree that the filter

log books were no longer being utilized in late 2002. (Walker Dep. at 33-34). According to
5

 It should be noted that Galauskas did not testify as to the date that he was allegedly told

that the log books were no longer being used. Thus, it could have been after March or April of

2003 when Richtmyre testified that Abbott discontinued the log book entry procedure, as

mentioned above.

8

Walker, after stating to DeBree that he could not sign work orders as complete unless he

recorded the filter log readings, DeBree specifically instructed Walker to sign off on work orders

and not to worry about recording the readings in the filter log book. Chris Galauskas, former

HVAC mechanic and one of the mechanics who, along with the Plaintiffs, was investigated for

missing log book data, testified at his deposition that he was instructed that the filter log books

were no longer being used; yet, he continued to receive work orders that required filter log

readings to be taken and recorded.5

 (Galauskas Dep. at 29; 32-33). Kevin Ehmke, former

HVAC mechanic, testified that the filter log books were removed from the HVAC Group by

Richtmyre and that he overheard her say that the log books were "a waste of time." (Ehmke Dep.

at 27).

Abbott argues that even if DeBree told the Plaintiffs that the filter performance log book

was no longer being used, which he denies, the Plaintiffs still have not established that they were

meeting Abbott's legitimate expectations because the Plaintiffs knew that if the log book was

unavailable, HVAC mechanics were to record the manometer readings on a separate sheet of

paper and attach the readings to the work order. Also, if a work order could not be completed as

written, HVAC mechanics were required to write the reason the work order could not be

completed in the space marked "Work Order Not Completed.." Rather than doing either of these

things, the Plaintiffs simply signed the work orders as completed. However, the validity of this

argument is contingent upon whether DeBree told the Plaintiffs that the filter performance log
9

book was no longer being used or that the manometer readings were not to be recorded. DeBree

was the Group Leader and the Plaintiffs' direct superior. Additionally, at their annual and

monthly training meetings, the Plaintiffs say, they were explicitly told to sign and date the work

orders upon completion without making any other marks on the work order. The Plaintiffs

suggest this instruction as a reason for not marking the "Work Order Not Completed" section of

the work order. 

Drawing all reasonable inferences in the Plaintiffs' favor, I conclude that the Plaintiffs

have satisfied the second element of their prima facie case because they have presented a genuine

issue of fact as to whether they were meeting Abbott's legitimate expectations. 

Abbott also argues that summary judgment is appropriate because the Plaintiffs failed to

establish that similarly situated female employees were treated more favorably than the Plaintiffs. 

A plaintiff may demonstrate that another employee is similarly situated by showing that there is

someone who is directly comparable to him in all material respects. Patterson v. Avery Dennison

Corp., 281 F.3d 676, 680 (7th Cir. 2002). In determining whether employees are similarly

situated, "a court must look at all relevant factors," and "in disciplinary cases– in which a

plaintiff claims that he was disciplined by his employer more harshly than a similarly situated

employee based on some prohibited reason– a plaintiff must show that he is similarly situated

with respect to performance, qualifications, and conduct." Radue v. Kimberly Clark Corp., 219

F.3d 612, 617-18 (7th Cir. 2000). For example, "[t]his normally entails a showing that the two

employees dealt with the same supervisor, were subject to the same standards, and had engaged

in similar conduct without such differentiating or mitigating circumstances as would distinguish

their conduct or the employer's treatment of them." Id. 
10

The Plaintiffs identify Ms. McGruder as a similarly situated female employee who was

treated more favorably than themselves. Abbott sets forth several factual arguments seeking to

point out differences between the Plaintiffs and McGruder. First, Abbott indicates that

McGruder was not an HVAC mechanic; rather, she was an apprentice in the STEP program. As

such, she worked at Abbott during the day and attended classes at a local college at night. STEP

employees typically rotate through different departments within Abbott, usually for six months at

a time. Upon completion of the apprenticeship, a STEP employee can apply for a full-time

position with Abbott. Second, Abbott claims that even though McGruder received work

assignments from Group Leader DeBree, McGruder's manager and the person to whom she

ultimately reported was the STEP coordinator, Bob Lynch, a manager in a different department. 

Third, Abbott argues that the Plaintiffs and McGruder differed in their duties. McGruder was

required to work with an HVAC mechanic because, as a STEP employee, she was not allowed to

work alone. Abbott claims that, while she was assigned PM work orders, McGruder was not

assigned any work orders that required her to take filter readings on airhandlers because that was

a "one person job." Finally, Abbott found no evidence that McGruder signed any work orders

stating that she had completed work that she had not completed.

Plaintiffs counter each of Abbott’s assertions. First, Plaintiffs contend that McGruder

was a full-time employee in the HVAC Group and point out that she worked in the HVAC Group

from February 2002 until October 2003, considerably longer than the typical six-month rotation

within Abbott. Also, many full-time HVAC mechanics have attended classes at a local college at

night; in fact, Plaintiff Frederick began his employment at Abbott in the STEP program,

attending HVAC training classes at a local college at night. Additionally, like Plaintiffs,

McGruder was required to obtain her refrigerant certification card to maintain employment in the
6

 A performance evaluation was never actually completed because McGruder took

maternity leave before completing her HVAC rotation. 

11

HVAC Group. Second, Plaintiffs stress that McGruder received her assignments and work

orders from Group Leader DeBree, in an identical fashion as Plaintiffs. Furthermore, DeBree

and Richtmyre were responsible for evaluating McGruder's performance.6 (Richtmyre Dep. at

141). Third, while McGruder was not allowed to work alone, it was common for DeBree to

assign HVAC mechanics to work in pairs, including the Plaintiffs. (In her affidavit, McGruder

stated that she performed all the job functions and duties of an HVAC mechanic) (McGruder Aff. 

4, 8). Plaintiff Martin stated in his deposition that when McGruder was assigned to work with

him, "[t]here was nothing [Martin] did that [McGruder] didn't do." (Martin Dep. at 146). 

DeBree has admitted that McGruder may have signed and completed work orders that she had

been assigned to perform with a full-time HVAC mechanic. (DeBree Dep. at 62). According to

McGruder's affidavit and Plaintiff Frederick's deposition testimony, McGruder executed PM

work orders and made entries into the filter performance log book during the time she worked in

the HVAC Group. (McGruder Aff. at 2-3; Frederick Dep. at 83, 86). Finally, McGruder

claimed in her affidavit that, during her employment in the HVAC Group, she received

assignments to perform work orders that instructed her to record filter log readings in the filter

performance log book after the log book procedure allegedly had been eliminated. (McGruder

Aff. at 19). She was, therefore, unable to record the filter log readings as required by the work

order.

Abbott argues, even if McGruder did falsify work order documents, the decision maker,

Paul Finegan (Vice President, Corporate Engineering Department), was not aware of any such

conduct by McGruder. On February 6, 2003, according to Abbott, after interviewing and
7

 There is some dispute as to whether Finegan alone had the power to terminate an

employee and whether he was involved in the decision to terminate the Plaintiffs' employment. 

12

obtaining the written statements from the Plaintiffs, Richtmyre, Faragher, Taylor, and Fruehe met

to discuss the situation. The following day, Richtmyre sent an e-mail to Faragher, Taylor,

Fruehe, and Killian confirming that the general consensus from their conversations was that the

Plaintiffs should be terminated for falsification of documentation. Killian, one of the four

recipients of the e-mail, testified at his deposition that he recommended to his superior, Finegan,

that the Plaintiffs be terminated. (Killian Dep. at 24-25). Finegan approved the recommendation

and Plaintiffs were subsequently terminated on February 20, 2003. 7

According to Abbott, even if Richtmyre had knowledge regarding any falsification of

work orders by McGruder, which Richtmyre denies, Finegan alone was the decision maker, and

"[t]he law is clear that the knowledge of a non-decision maker is irrelevant." (Df. Memo. At 8). 

In support of this proposition, Abbott cites to Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359,

1366 (7th Cir. 1988); Lindsey v. Baxter Healthcare Corp., 757 F. Supp. 888, 896 (N.D. Ill.

1991); and Hempstead v. Rockford Hous. Auth., 2000 WL 516187 (N.D. Ill. Apr. 25, 2000). 

However, this argument is somewhat misplaced. All three of the cases referenced by Abbott

consider the non-decision maker’s knowledge in determining pretext, not whether an employee is

similarly situated. The central question here is whether McGruder had essentially the same job

and followed the same procedures as the Plaintiffs. Whether Finegan knew of McGruder’s

actions and responsibilities at the time is simply irrelevant. 

Drawing all reasonable inferences in the Plaintiffs' favor, I conclude that the Plaintiffs

have satisfied the fourth element of their prima facie case because they have presented a genuine
13

issue of fact as to whether McGruder was a similarly situated female employee who was treated

more favorably than the Plaintiffs were treated.

2. Pretext

Finally, Abbott argues that even if the Plaintiffs are able to establish a prima facie case of

gender discrimination, Abbott would nonetheless be entitled to summary judgment because

Abbott had a legitimate, non-discriminatory reason for terminating their employment. A plaintiff

may establish that the defendant’s proffered reason for termination was pretextual "either directly

by persuading the court that a discriminatory reason more likely motivated the employer or

indirectly by showing that the employer's proffered explanation is unworthy of credence." 

Mechnig, 864 F.2d at 1364 (quoting Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 253

(1981)). The plaintiff may demonstrate that the employer's reason is unworthy of credence by

providing "evidence tending to prove that the employer's proffered reasons are factually baseless,

were not the actual motivation . . . or were insufficient to motivate" the action. Gordon v. United

Airlines, Inc., 246 F.3d 878, 888-89 (7th Cir. 2001) (quoting Adreani v. First Colonial

Bankshares Corp., 154 F.3d 389, 395 (7th Cir. 1998)). Thus, the inquiry here is limited to

whether the employer honestly believed the reason it gave for the decision to terminate the

Plaintiffs, and not whether it made a mistake or a bad business decision. Kralman v. Illinois

Dep't of Veterans’ Affairs, 23 F.3d 150, 156 57 (7th Cir. 1994). 

Abbott asserts that the Plaintiffs were terminated because they falsified company

documents when they signed work orders indicating that they had completed their assigned tasks,

despite the fact that they did not complete those tasks. Plaintiffs, on the other hand, claim that

the circumstances surrounding their termination and this litigation support a finding of pretext. 

First, Plaintiffs allege that Abbott lied about who was involved in the Plaintiffs' terminations. 
8

 Abbott points out that the Plaintiffs did not take the opportunity to depose Finegan

during discovery. 

14

The Plaintiffs point out that when Abbott responded to Plaintiffs' First Set of Interrogatories,

Abbott stated that Richtmyre, Faragher, Taylor, Fruehe, and Killian were the individuals

involved in the decision to terminate the Plaintiffs. Not until eight months later did Abbott assert

that Finegan was the individual who made the ultimate decision to terminate Plaintiffs. This, 

Plaintiffs contend, shows that Abbott was "attempting to insulate itself from liability by

continuing to climb the corporate ladder in order to separate the decision maker from pertinent

knowledge regarding the discriminatory bases for the terminations of Plaintiffs." (Pl. Memo. at

13). The late discovery of Finegan’s identity does not, however, establish pretext. Abbott has

stated that their Answer was truthful when given and that it had later determined during

discovery that although all of the individuals listed were involved in the decision to terminate

Plaintiffs, none of those individuals possessed the authority to make the final termination

decision. Ultimately, Finegan’s decision-making responsibility was disclosed to Plaintiffs at

Killian’s deposition on July 23, 2004, leaving time for Plaintiffs to depose Finegan during the

discovery period.8 (Killian Dep. at 24-25).

Plaintiffs further allege that legitimacy of Abbott’s given reason for their termination is

disputed by the record in this case. Plaintiffs’ claims that Abbott had abandoned its policy of

taking manometer readings and recording them in the log books. Plaintiffs assert that DeBree

and Richtmyre removed the log book from the HVAC Group. DeBree stated at his deposition on

July 27, 2004, that he was unaware of where the filter log books were being kept at the time of

his testimony and that the last time DeBree saw them in his desk was a "couple of years" ago. 

(DeBree Dep. at 36). The Plaintiffs contend that, following the alleged elimination of the log
15

book entry procedure, DeBree and Hauser told the HVAC mechanics, including Plaintiffs, to

disregard instructions on the work orders regarding log book entry and sign and date them as

complete without recording the manometer readings. Plaintiffs also assert that the work orders

contained the instruction "Log Entry Required: N." Looking at the facts in the light most

favorable to the Plaintiffs, I find that the evidence presented casts sufficient doubt on Abbott's

proffered non-discriminatory reasons to survive summary judgment. 

B. Count II -ERISA

With respect to Plaintiffs' ERISA claim, Abbott argues that the Plaintiffs cannot establish

a prima facie case of interference with their ERISA because the Plaintiffs were not qualified for

their job positions and were not discharged under circumstances that provide some basis for

believing that the prohibited intent to retaliate was present. See Salus v. GTE Directories Serv.

Corp., 104 F.3d 131, 135 (7th Cir. 1997). Further, Abbott asserts that even if the Plaintiffs could

establish their prima facie case, they cannot rebut Abbott's legitimate, non-discriminatory reason

for terminating Plaintiffs' employment because they fail to show that Abbott's explanation is

pretextual and "that the motivating factor behind the termination was the specific intent to

interfere" with the Plaintiffs' ERISA rights. Id. Upon further review, Plaintiffs conceded all

claims under Count II of their Complaint. 

III. Abbott’s Motions to Strike

A. Abbott’s Motion to Strike Portions of Plaintiffs’ Response to Abbott’s Statement

of Material Facts

In addition to its Motion for Summary Judgment, Abbott has also filed a Motion to Strike

portions of Plaintiffs’ Response to Abbott’s Statement of Material Facts. Local Rule

56.1(b)(3)(A) provides that the opposing party to a motion for summary judgment must respond
16

to the movant’s Statement of Material Facts with “a response to each numbered paragraph in the

moving party’s statement, including, in the case of any disagreement, specific references to the

affidavits, parts of the record, and other supporting materials relied upon...” Local R.

56.1(b)(3)(A). If the non-moving party fails to comply with the local rules regarding its

response, the response may be stricken. Rosemary B. v. Bd. of Ed., 52 F.3d 156 (7th Cir. 1995). 

“The well-known consequence of a failure to comply with local rule [56.1] is that each of the

properly supported facts contained in the movant’s [56.1] statement of material facts is deemed

admitted.” MacDonald v. Commonwealth Edison, 810 F. Supp. 239, 242 (N.D. Ill. 1993); Local

Rule 56.1(b)(3).

First, Abbott argues that Plaintiffs’ responses to Material Facts 39, 42, 45, 48, 51, 73, 75,

76, 78, 79, 90, 97, 101, 105, 109, 110, and 119 should be stricken because they are improper. In

the responses other than 119, Plaintiffs stated they did not dispute the material fact stated and

proceeded to offer additional non-conflicting, explanatory information. Since the Plaintiffs did

not dispute these material facts, I deem them admitted. The admission of these facts is, however,

of little consequence since it does not mean that Plaintiffs are prohibited from using the

explanatory information in their motion for summary judgment. The additional information

provided by Plaintiffs is based on the record and may be used to put the facts in context. 

Material Fact 119 was properly disputed by Plaintiffs and is not deemed admitted. 

Second, Abbott argues that Plaintiffs’ responses to Material Facts 17, 18, 19, 32, 35, 36,

38, 41, 44, 47, 50, 67, 70, 71, 77, 84, 85, 86, 88, 96, 98, 102, 103, 106, and 111 should be

stricken because Plaintiffs fail to cite sufficient information to support their denial. After

reviewing Plaintiffs’ Answers and the supporting materials, I find they are sufficiently supported

and should stand.
17

B. Abbott’s Motion to Strike Certain Exhibits Offered by Plaintiffs

Abbott argues that Plaintiffs’ Exhibits DD, OO, PP, QQ, TT, WW, YY, and AAA should

be stricken because they have not been properly identified by affidavit or otherwise made

admissible. As a general rule, however, “documents produced in response to discovery are selfauthenticating.” Architectural Iron Workers Local No. 63 Welfare Fund v. United Contractors,

Inc., 46 F. Supp. 2d 769, 772 (N.D. Ill. 1999)(quoting South Cent. Bank v. Citicorp Credit

Services. 863 F. Supp. 635, 645 (N.D. Ill. 1994)(“there is no error to admit as evidence

documents that Defendants themselves possess and produced in response to Plaintiff’s request

for production of documents.”). Exhibits OO, PP, QQ, TT, WW, YY, and AAA were produced

by Abbott, and are, therefore, admissible without further authentication. Exhibit DD was not

produced during discovery and is not automatically authenticated. 

VI. Conclusion

For the reasons stated above, Abbott's Motion for Summary Judgment is GRANTED as

to Plaintiffs’ ERISA claim and is otherwise DENIED, Abbott’s Motion to Strike Portions of

Plaintiffs’ Response to Abbott’s Statement of Material Fact is GRANTED in part and DENIED

in part, and Abbott’s Motion to Strike Certain Exhibits Offered by Plaintiffs is GRANTED with

respect to Exhibit DD and is otherwise DENIED.

ENTER:

_________________ James B. Za______________ gel

James B. Zagel

United States District Judge

DATE: March 16, 2005