that Stolarezyk suffered from an adverse employment action, summary judgment is proper.

B. Stolarezyk Was Not a “Qualified Individual With a Disability”

Even if Plaintiff had discharged the burden of providing admissible evidence of an
adverse job action, summary judgment is proper for the independent reason that Stolarczyk was
not a “qualified individual with a disability.” To make this determination, the Court must see
whether she was “qualified to perform the essential functions of the job either with or without
reasonable accommodation.” Dvorak, 289 F.3d at 483. This is the second prong of a prima facie
case. See id. The determination as to whether the individual is a “qualified individual with a
disability” must be made at the time of the putative adverse employment decision. Weiler v.
Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996) (citation omitted); Sutton v. Potter, No.
02 C 2702, 2004 WL 603477, at *7 (N.D. Ill. March 22, 2004) (Leinenweber, J.) (citing Nowak
v, St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998).

Senator relies on Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003), for the
proposition that an inability to work for an extended period of time (in that case, two months)
means that a litigant cannot perform the job’s essential functions and thus is not “qualified”
within the meaning of the ADA. /d. at 381. In this regard, the Seventh Circuit has repeatedly
found that plaintiffs with lengthy absences do not qualify for protection under the ADA because
they cannot perform the essential functions of their jobs. See Jovanovic v. In-Sink-Erator Div. of
Emerson Elec. Co., 201 F.3d 894, 899-00 (7th Cir. 2000) (plaintiff could not perform essential
function of regular and timely attendance where he missed 24 days in twelve months), id.
(“Common sense dictates that regular attendance is usually an essential function in most every

employment setting; if one is not present, he is usually unable to perform his job.”); accord, e.g.,

20


21, 2002, Sedor was advised by another Senator employee that Stolarezyk had been diagnosed
with cancer. (/d.4 18.)

Plaintiff does not dispute that as of October 24, 2002, Stolarezyk knew that surgery was
scheduled for her on or about November 8, 2002, and that she could not thereafter return to work
before the end of January 2003. (Def. SF { 19; Pl. Resp. to SF { 19 (admitting fact).) On
October 24, Stolarczyk came to Sedor’s office without prior notice and told Sedor that (1) she
had cancer and could not work; (2) she would have surgery in early November and then would be
treated with chemotherapy and radiation; (3) she would be unable to work prior to the end of
January 2003 when her doctor hoped that she would finish her treatment, but she did not know if
she would be able to return to work at that time because her doctor had told her the treatment
tended to make people ill for awhile thereafter; (4) she realized Sedor could not hold her job
open for her under the circumstances and did not expect Sedor to do so; and (5) she hoped that
she could get her job back if it happened to be open when she got better.” (Def. SF 4] 20; PI. SAF

49.) Stolarezyk did not request a medical disability leave of absence during that meeting with

Stolarezyk at Senator (Def. SF § 11), and Plaintiff offers no argument that Sedor could not
competently testify concerning Stolarczyk’s attendance. That Stolarezyk would have been paid
beyond October 14 is not inconsistent with the statement that the last day she actually performed
work for Senator was October 14. Thus, the Court deems the statement admitted for lack of a
denial supported by record evidence. See Malec, 191 F.R.D. at 584.

° Plaintiff does not dispute (1) and (2). (PI. Resp. to SF q 20.) Plaintiff attempts to
dispute (3) by offering a statement in a medical report by a doctor who examined Stolarezyk that,
in the doctor’s opinion, some individuals are able to work in an administrative capacity while
undergoing chemotherapy and radiation treatments, depending on the disease, treatment, and
physical state of the patient. (/d.) This evidence as to “some individuals” does not create a
dispute as to whether Stolarczyk told Sedor that she might not be able to come back to work.
Plaintiff also attempts to deny (4) and (5) by offering statements from Stolarezyk’s EEOC charge
that she was terminated. Thus, the statements in (3), (4), and (5) are deemed admitted for lack of
a denial supported by appropriate record evidence. See Malec, 191 F.R.D. at 584.

14


Corp., 649 F.2d 816, 821 (10th Cir. 1981)); accord Frazier v. Ind. Dept. of Labor, No. IP01-
0198-C-T/G, 2003 WL 21254424, at *4 (S.D. Ind. Mar. 17, 2003) (excluding numerous
proffered matters from an EEOC file, including the EEOC charges and position statements of the
complainants, on grounds of, inter alia, the general hearsay prohibition and Rule 403) (citing
Tulloss v. Near N. Montessori Sch., 776 F.2d 150, 154 (7th Cir. 1985)); Lewis v. Velez, 149
F.R.D. 474, 487 (S.D.N.Y. 1993) (noting that “Rule 803(8) does not circumvent the hearsay
tule” and noting that “[tJhis principle excludes much of the Bryan Report [concerning a prison
incident], which is comprised largely of hearsay statements from correction officers involved in
the... incident.”); Budden v. United States, 748 F. Supp. 1374, 1377-78 (D. Neb. 1990) (stating
that “[e]vidence reported in a government document is only admissible to the extent that the
maker of the document could testify to that evidence were he or she present in court,” and
accordingly “disregard[ing]” “the reported statements” of numerous witnesses).

These cases are consistent with Fed. R. Evid. 805, which requires that hearsay within
hearsay may be admitted only if there is an exception for each “layer” of hearsay. See Fed. R.
Evid. 805. Plaintiff has not offered any exception for the statements made by Stolarczyk
contained in the EEOC notes—which are the statements upon which Plaintiff would rely for their
truth to support Plaintiff's statements of fact and denials. Although the Court is sympathetic to
the Plaintiff in that Ms. Stolarezyk has unfortunately died, if the EEOC investigator were called
as a witness at trial, the Court could not allow that individual to relate rank hearsay in the form of

out-of-court statements made by an interested party and in reasonable anticipation of ensuing

' The district court judgment in Budden was vacated on other grounds in Budden v.
United States, 963 F.2d 188 (8th Cir.1992).


Byrne, 328 F.3d at 381; Amadio v. Ford Motor Co. 238 F.3d 919, 927-28 (7th Cir. 2001).
According to precedent, this type of request to an employer is not a “reasonable accommodation”
because the “sort of accommodation contemplated by the ADA is one that will allow the person
to ‘perform the essential functions of the employment position.” /d., 328 F.3d at 381 (quoting 42
U.S.C. § 12111(8)). While a certain amount of “time off may be an apt accommodation for
intermittent conditions,” the Seventh Circuit held in Byrne that an “[iJnability to work for a
multi-month period removes a person from the class protected by the ADA.” Jd.

Here, Stolarezyk worked her last day on October 14, 2002. (Def. SF 15, 16.) She
informed Sedor on October 24, 2002, that she would be out until at least the end of January 2003.
(Def. SF 4 20.) Thus, the evidence before the Court demonstrates that on the date Stolarczyk met
with Sedor (assuming for the purposes of this discussion that she was terminated), October 24,
2002, Senator was faced with an employee who would be out of work for some two-and-a-half to
three-and-a-half months (mid-October to sometime in January). Given that Plaintiff does not
dispute that attendance was a “central and critical aspect” of Stolarczyk’s position (PI. Resp. to
SF 4 10), the Court finds that, under the applicable precedent, an imminent absence of this length

takes Stolarczyk out of the realm of protection of the ADA.'* Because Plaintiff has failed to

'S plaintiff suggests that Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495 (7th
Cir. 2000), militates in favor of a different result. But Pals dealt with a materially different
scenario: there was evidence in that case that a person had been able to temporarily replace the
plaintiff and long-time employee during an absence, and as a result, it was possible that the
plaintiff/absent worker’s request to return to work gradually could be a reasonable
accommodation. See id. at 498. In this case, there was no evidence of any readily available
temporary replacement; instead, the undisputed evidence is that Stolarczyk’s regular attendance
was a “central and critical” (Def. SF { 10) component of her job at the transportation facility and
that, unfortunately, as a result of her cancer, she necessarily would be out for months at the least.
(As events unfolded, she was unavailable, at a minimum, for some five months—from mid-
October 2002 until mid-March 2003.)

21


IV. Conclusion

For the reasons stated above, Senator’s motion for summary judgment (D.E. 27) is

granted,
So ordered. if | tbe.
Mark Filip \t
United States District Aydge
Northern District of Illinois
ve
Date: 7 §- os

23


individual with a disability” as “an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8); accord Ammons v. Aramark Unif. Servs.,
Inc., 368 F.3d 809, 818 (7th Cir. 2004). Section 12102(2) defines a disability, in relevant part, as
“(A) a physical or mental impairment that substantially limits one or more of the major life
activities of such individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment.” 42 U.S.C. § 12102(2).

To make out a prima facie case of discrimination under the ADA, Plaintiff must show
that (1) Stolarezyk is disabled within the meaning of the ADA, (2) she was qualified to perform
her essential job functions either with or without a reasonable accommodation, and (3) she
suffered from an adverse employment action because of her disability. Dvorak v. Mostardi Platt
Assocs., Inc., 289 F.3d 479, 483 (7th Cir. 2002) (citing Bekker v. Humana Health Plan, Inc., 229
F.3d 662, 669-70 (7th Cir. 2000)). The burden is on a plaintiff to show that the plaintiff can meet
these requirements. See Feldman v. Am. Mem'l Life Ins. Co., 196 F.3d 783, 789-90 (7th Cir.
1999).

A. Plaintiff Has Failed to Adduce Evidence that Stolarezyk Was Terminated

Based on the admissible record evidence in the case, summary judgment is warranted on
the ground that Plaintiff has failed to adduce evidence that Stolarczyk suffered from an adverse
employment action. The only evidence Plaintiff offered to support the contention that Stolarezyk
was terminated by Senator, as opposed to not being discharged by Senator or Sedor, (see Def. SF
| 22, 23), are the excluded hearsay statements in Stolarczyk’s EEOC charge and the statements

that Stolarezyk apparently made to the EEOC investigator, as reflected in the notes of those

18


presumption is in favor of untrustworthiness). In sum, although at least some of the factors
identified in precedent support potential admissibility (e.g., the statements were made under oath,
the testimony concerns a subject within the hearsay declarant’s personal knowledge, the hearsay
declarant never recanted her testimony), there are also substantial factors weighing against
admissibility (e.g., the witness was never subject to cross-examination, the hearsay declarant was
an interested party, the statements were made in anticipation of potential litigation). Under the
circumstances, the ordinary presumption in Seventh Circuit precedent against admission of
hearsay statements under the residual exception controls. Or, put differently, Plaintiff has failed
to rebut the applicable presumption of inadmissibility.

Plaintiff relies heavily on the fact that, given Stolarezyk’s death after the instigation of the
lawsuit, she is unavailable to testify as to the statements in the EEOC documents. While the
Court agrees with Plaintiff that the EEOC documents constitute the only evidence available that
gives Stolarczyk’s version of events, they are not the only evidence available as to the events
surrounding the end of her employment with Senator. (See, e.g., D.E. 27 (Sedor Aff.).) Thus,
the “clear necessity” which Plaintiff argues (D.E. 37 at 3) is only necessary given that the other
evidence offered concerning the same events does not corroborate or support Stolarczyk’s
litigation position. Additionally, a witness’s death is not enough to justify discarding the
trustworthiness requirement of the residual hearsay exception. See, e.g., United Sanitation Serv.,
737 F.2d at 940-41 (reversing ALJ’s decision to admit dead witness’s self-serving affidavit
because no “clear basis of trustworthiness” found). Indeed, Congress has specifically delineated
circumstances for admission of evidence where a declarant is unavailable, see Fed. R. Evid. 803,

so Stolarezyk’s death cannot, alone, justify the use of hearsay evidence.

10


James Green Mgmt. Inc., 327 F.3d 616 (7th Cir. 2003),? that case affirmed the exclusion at trial
of administrative findings of discrimination by the EEOC. Jd. at 624. In this case, Plaintiff has
not offered such findings, but rather has offered hearsay notes of out-of-court statements by Ms.
Stolarezyk. In addition, the appellants in that case did not even challenge the district court’s
decision (mirrored by this Court here) not to admit the contents of the EEOC file. See id. at 624
& n.5 (noting that the appellants did not even challenge the district court’s decision to exclude
raw evidence from the EEOC files, based on the “general unreliability of these files in
general.’”) (quoting district court).

For the reasons stated above, the interview notes of out-of-court statements made by Ms.
Stolarezyk will not be considered in this summary judgment proceeding.

2. Ms. Stolarezyk’s EEOC Charge

Plaintiff also seeks to rely on Ms. Stolarczyk’s EEOC charge that she submitted when
initiating the EEOC proceedings. Plaintiff contends that this EEOC charge should be exempted
from the general prohibition against hearsay evidence under Fed. R. Evid. 807, the residual
exception to the hearsay bar.*

If a statement not covered by the hearsay exceptions in Rules 803 or 804 has “equivalent

> In Plaintiff's filing, Plaintiff cited “Young & Mays v. Glen Management 372 F.3d 616,
623 (7th Cir. 2003).” (D.E. 33 at 5.) An initial attempt at retrieving the case electronically
revealed that the case corresponding to the federal reporter cite is GTE Corp. v. Allendale Mut.
Ins. Co., 372 F.3d 598 (3d Cir. 2004), which does not relate to the issues at hand. Furthermore, a
search for cases involving “Glen Management” revealed nothing material. Finally, additional
searches uncovered Young v. James Green Mgmt. Inc., 327 F.3d 616 (7th Cir. 2003), which
appears to be the case Plaintiff offers.

+ In 1997, the contents of former Rules 803(24) and 804(b)(5) were combined and
transferred to a new Rule 807 to facilitate additions to Rules 803 and 804. No change in
meaning was intended by the amendment. See Fed. R. Evid. 807, advisory committee’s notes.

7


litigation. As the Seventh Circuit has noted, “the EEOC file is a ‘mish-mash of self-serving and
hearsay statements and records; . . . justice requires that the testimony of witnesses be given in
open court, under oath, and subject to cross-examination.” Tudloss, 776 F.2d at 154 (internal
quotation marks and citation omitted). The Court would follow the Seventh Circuit’s admonition
at any trial and exclude the hearsay, as nothing in the Plaintiff's invocation of Rule 803(8) would
allow for the admission of the proffered out-of-court interview statements by Ms. Stolarczyk to
the EEOC investigator.”

None of the three cases cited by Plaintiff alters the analysis above. Chandler v.
Roudebush, 425 U.S. 840 (1976) (cited by Plaintiff in D.E. 33 at 5), simply noted in a footnote
that prior “administrative findings” concerning employment discrimination cases involving
federal employees could be admitted at trial. /d. at 864 n.39. But, as explained above, the
interview notes that Plaintiff proffers are not “administrative findings,” they are just shorthand
notes of statements that Ms. Stolarczyk made before her death, offered for the truth of those out-
of-court assertions. Similarly, Beech Aircraft v. Rainey, 488 U.S. 153 (1988), addressed the
question of whether Rule 803(8)(C)’s exception to the hearsay prohibition “for public
investigatory reports containing ‘factual findings,’ extends to conclusions and opinions contained
in such reports.” Jd. at 156. Again, the proffered interview notes are not public investigatory

reports, nor do they contain “factual findings.” Finally, to the extent Plaintiff offers Young v.

2 while it is possible that the EEOC somewhere made internal “findings” concerning this
case, Plaintiff does not offer any such documents or evidence, and instead only proffers the
selected interview notes. The Court notes that the EEOC often (perhaps typically) resists
production of internal deliberative or evaluative materials under an invocation of privilege. See,
e.g., Lang v. Kohl’s Food Stores, Inc., 186 F.R.D. 534, 535 (W.D. Wis. 1998) (Crabb, J.)
(sustaining deliberative process objection by the EEOC).

6


conversations (see Pl. SAF §§ 1, 2). In contrast, the admissible record evidence establishes that
Ms. Stolarczyk went to the office of Ms. Sedor without prior notice in late October 2002 and
informed Sedor that Stolarezyk had cancer and would be unable to work prior to at least the end
of January 2003; at the meeting, Stolarczyk also stated that she realized Sedor could not hold her
job open for her under the circumstances and did not expect Sedor to do so. (Def. SF { 20; Pl.
SAF 4 9.) Ms. Sedor did not discharge Ms. Stolarezyk (/d. | 23), and Sedor considered Ms.
Stolarezyk to have voluntarily resigned. (/d. § 22). Ms. Stolarczyk thereafter was unable to work
until mid-March 2003, at the earliest. (Def. SF {] 31, 34.)

Put simply, nothing in the admissible record evidence supports the idea of an involuntary
termination as opposed to a voluntary resignation. Precedent establishes that a voluntary
decision to cease employment is not an adverse employment action. See Bean v. Wisc. Bell, Inc.,
366 F.3d 451, 453 (7th Cir. 2004) (“[I]f she resigned, what is the adverse employment action of
which she is complaining?”); Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876 (7th
Cir. 1999) (voluntary demotion not adverse employment action).

Plaintiff also has not argued for, nor put forward evidence that would support a finding
of, an adverse employment action under a theory of constructive discharge. See, e.g., Bean, 366
F.3d at 454 (“[C]onstructive discharge, refers to the situation in which an employer precipitates
an employee’s resignation by making the employee’s working conditions unbearable.”)
(collecting cases); Simpson, 196 F.3d at 877 (establishing constructive discharge requires a
showing that (1) working conditions “were so intolerable that a reasonable person would have
been compelled to resign,” and (2) the conditions were intolerable because of unlawful

discrimination). Because Plaintiff has failed to satisfy Plaintiff's burden of adducing evidence

19


“the probable motivation of the declarant in making the statement;’ (2) ‘the circumstances under
which it was made;’ and (3) ‘the knowledge and qualifications of the declarant.”” Hall, 165 F.3d
at 1110 (quoting Cook v. Hoppin, 783 F.2d 684, 690-91 (7th Cir. 1986)). The Court also may
appropriately consider, when exercising its informed discretion concerning admissibility, any
other circumstances concerning the statement; no particular criterion is a necessary prerequisite.
See id. at 1111 (discussing various possible other factors, including the character of the declarant
for truthfulness and honesty, and whether the hearsay statement is corroborated).

After considering the statements in the EEOC charge, the Court respectfully declines the
invitation to admit them under the residual hearsay exception. As stated before, these statements
are presumed to be inadmissible. Precedent teaches that courts typically should not admit
documents made in anticipation of litigation as they “lack sufficient guarantees of
trustworthiness to be excerpted from the hearsay rule.” Moffett v. McCauley, 724 F.2d 581, 584
n.l (7th Cir. 1984) (citing Palmer v. Hoffman, 318 U.S. 109, 111 (1943)) (considering former
Rule 803(24)); see also U.S. v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993) (“[W]e adhere to
the well-established rule that documents made in anticipation of litigation are inadmissible under
the business records exception [to the general hearsay prohibition].”). The statements contained
in the documents are favorable to Stolarczyk and to her alone, and she had substantial
motivation, with all respect, to embellish, as she clearly appreciated that she was laying out her
litigation position. To be sure, as Plaintiff highlights, the statements were given under a penalty
of perjury, but Ms. Stolarczyk was never subject to cross-examination by anyone concerning the
statements and there is nothing inherently trustworthy about the statements (indeed, precedent

instructs that, based on the context they were made in anticipation of potential litigation, the


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LESTER W. STOLARCZYK, Independent
Executor of the Estate of REBECCA M.
STOLARCZYK, Deceased,

Plaintiff,

Judge Mark Filip
SENATOR INTERNATIONAL

)
)
)
)
)
)
v. ) No. 03 C 8709
)
)
)
FREIGHT FORWARDING, LLC, )
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Lester Stolarezyk (“Plaintiff”) is suing, on behalf of the estate of Rebecca
Stolarczyk (“‘Stolarezyk”), Senator International Freight Forwarding, LLC (“Defendant” or
“Senator”), for allegedly unlawfully terminating Stolarczyk and failing to offer her a reasonable
accommodation for her alleged disability in violation of the Americans with Disabilities Act, 42
U.S.C. §§ 12101, et seq. (D.E. 24 (Am. Compl.).) The case is before the Court on Defendant’s

motion for summary judgment (“Motion”). (D.E. 27.) For the reasons stated below, the Motion

is granted.
1. Background
A. Preliminary Issues

The relevant facts are taken from Defendant’s Local Rule 56.1 (“L.R. 56.1”) statement of
facts and exhibits (“Def. SF”), Plaintiff's response to Defendant’s statement of facts (“Pl. Resp.
to SF”), Plaintiff's L.R. 56.1 statement of additional facts (“P1. SAF”), and Defendant’s response

to Plaintiffs statement of facts (“Def. Resp. to SAF”). As is the practice in this district, the


justification fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless
such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any
witness or information not so disclosed.” The following factors guide the Court’s decision
whether to exclude evidence pursuant to Rule 27(c): “(1) the prejudice or surprise to the party
against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the
likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing
the evidence at an earlier date.” David v, Caterpillar, 324 F.3d 851, 857 (7th Cir. 2003) (citing,
inter alia, Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir. 1995)). In particular, harmlessness may
be proved by a showing that a witness was disclosed during discovery. Weiland v. Linear Const.,
Ltd., No. 00-6172, 2002 WL 31307622, at *2 (N.D. Ill. Oct. 15, 2002). Plaintiff offers
deposition testimony from Lester Stolarczyk in which Anastasia O’Donnell was identified as (1)
Stolarezyk’s daughter who (2) attended doctor’s appointments with her. (See D.E. 39, Ex. C at
12, 17, 23, 39.) Defendant thus had notice that O’Donnell may have had information relevant to
the case, and the Court declines to exclude her affidavit under Rule 39 because the failure to
disclose O’Donnell in Plaintiff's Rule 26 disclosures was harmless.

B. Facts®

Senator is in the business of transporting freight internationally by air or water. (Def. SF

4/3.) Stolarezyk was employed by Senator at its Mt. Prospect, Illinois, facility from May 15,

© The Court notes that many of Plaintiff's Statements of Additional Facts are supported
by inadmissible or otherwise improper evidence and are thus not included in the recitation of the
facts. (See, e.g., Pl. SAF 4] 1-2 (EEOC charge), 3 (inadmissible hearsay), 5 (EEOC notes), 8
(Sedor Dep. cited does not support statement).) Additionally, legal conclusions are not properly
submitted as statements of fact. (/d. {11 (offering Sedor’s answer to the question whether there
was need to provide Stolarczyk with a reasonable accommodation).) See Greer v. Bd. of Educ. of
City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001).

12


In this regard, the Court notes that the issue of a deceased witness is one that the law has
addressed for many years. It is not irrelevant that the “dying declaration” exception to the
hearsay rule—for the statements of a deceased witness made while under an apprehension of
impeding death—has long been understood to be a relatively narrow one. See, e.g., Carver v.
United States, 164 U.S. 694, 697 (1897) (“Dying declarations are a marked exception to the
general rule that hearsay testimony is not admissible, and are received from the necessities of the
case, and to prevent an entire failure of justice, as it frequently happens that no other witnesses to
the homicide are present. .. . They are received only when the court is satisfied that the witness
was fully aware of the fact that his recovery was impossible, and in this particular requirement
the law is very stringent.”); accord, e.g., Pfeil v. Rogers 757 F.2d 850, 860-61 (7th Cir. 1985)
(excluding out-of-court statements of deceased witness related in affidavit where statements did
not qualify as dying declarations). While the Court is not unsympathetic to the fact that Ms.
Stolarczyk unfortunately has died, the rules of evidence have been created over many years and
they, at least on balance, are generally seen as an essential part of the truth-finding process.
Under the circumstances presented, the EEOC charge shall not be considered.>

3. The Anastasia O’Donnell Undisclosed Witness Issue

Senator also objects to Plaintiff's statements of fact supported only by the affidavit
testimony of Anastasia O’Donnell. Senator asserts that O’Donnell was not disclosed as a
potential witness under Federal Rule of Civil Procedure 26(a).

Federal Rule of Civil Procedure 37(c)(1) states, “A party that without substantial

5 As best the Court can tell, after Ms. Stolarczyk initiated EEOC proceedings, and after
this lawsuit also was filed, neither Plaintiff nor Ms. Stolarczyk invoked Fed. R. Civ. P. 27 to
attempt to secure Ms. Stolarczyk’s testimony in admissible form for purposes of this lawsuit.

11


circumstantial guarantees of trustworthiness,” Rule 807 allows a court to admit the statement if it
determines “(A) the statement is offered as evidence of material fact; (B) the statement is more
probative on the point for which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes of these rules and the interests
of justice will best be served by admission of the statement into evidence.” Fed. R. Evid. 807.
Precedent teaches that ““[o]ut-of-court statements are generally inadmissible because they are
presumed to be unreliable.” United States v. Hall, 165 F.3d 1095, 1110 (7th Cir. 1995) (quoting
United States v. Hooks, 848 F.2d 785, 796 (7th Cir. 1988)) (emphasis added; analyzing former
Rules 803(24) and 804(b)(5)). “Thus, the party wishing to introduce hearsay evidence must rebut
the presumption of unreliability by appropriate proof of ‘trustworthiness.”” /d. (internal
quotation omitted). In addition to the presumption of unreliability afforded to hearsay
statements, Plaintiff also faces the Seventh Circuit’s repeated “emphasis on narrowly construing
the residual provision,” Akrabawi v. Carnes Co., 152 F.3d 688, 697 (7th Cir. 1998) (citing
United States v. Sinclair, 74 F.3d 753, 759 (7th Cir. 1996)), and the Seventh Circuit’s teaching
that such narrow construction is appropriate to prevent the residual exception “from becoming
the exception that swallows the hearsay rule.” /d. (citing Sinclair, 74 F.3d at 759); accord, e.g.,
NLRB vy. United Sanitation Serv., Div. of Sanitas Serv. Corp., 737 F.2d 936, 941 (11th Cir, 1984)
(“[UJnless application of [the predecessor to Rule 807] be limited to circumstances evidencing a
clear basis of trustworthiness, exceptions to the rule against hearsay could swallow the rule.”)
(internal quotation omitted)).

In determining whether a statement is sufficiently reliable to qualify under the residual

exception to the general hearsay prohibition, a court “should examine, among other factors: (1)


establish that Stolarezyk was qualified to perform her essential job functions either with or
without a reasonable accommodation, Plaintiff has failed to make out a prima facie case of
discrimination, and summary judgment would be independently warranted on such basis.

Cc. Senator Did Not Fail to Reasonably Accommodate Stolarezyk’s Disability

Plaintiffs claim that Senator failed to reasonably accommodate Stolarezyk’s disability
does not survive summary judgment. As discussed, supra, precedent teaches that a multi-month
leave is not a reasonable accommodation under the ADA. Compare Byrne, 328 F.3d at 381
(leave of more than two months not reasonable) with Haschmann v. Time Warner Entm t Co.,
L.P., 151 F.3d 591, 601 (7th Cir. 1998) (two to four week leave reasonable). Plaintiff has
adduced no admissible evidence that Stolarezyk requested any accommodation, much less
anything other than a multi-month leave. Indeed, unfortunately, it is hard to imagine what
possible accommodation could have been given to Ms. Stolarezyk, given that it is undisputed that
regular attendance was “a central and critical aspect of her position” (D.E. 32 (Pl. Resp. to SF) §
10) and further undisputed that she was unable to work until mid-March 2003, at the earliest.
(Def. SF 4 31, 34.) Accord Kemerly v, Bi-County Servs., Inc., No. 1:00-CV-254, 2003 WL
22595802, at *14 n.22 (N.D. Ind. Oct. 7, 2003). Senator, of course, was free to keep her position
open if it chose, but, as explained above, the ADA does not mandate such a step. Thus, summary
judgment is proper on Plaintiff's claim that Senator failed to offer Stolarezyk a reasonable

accommodation.

22


Rule 803(8)(C) excepts from the general hearsay bar “[r]ecords, reports, statements, or
data compilations, in any form, of public offices or agencies, setting forth . . . in civil actions and
proceedings . . . factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances indicate lack of
trustworthiness.”

To begin, it is clear from a review of the proffered investigator’s notes that they cannot
fairly be characterized as “factual findings” resulting from an investigation made pursuant to
authority granted by law. Instead, a review of the notes (see D.E. 33, Ex. 4) makes clear that they
are instead selective portions of notes concerning statements made by Ms. Stolarezyk during an
interview with an EEOC investigator. (See, e.g., D.E. 33, Ex. Akbar Aff. (affidavit of EEOC
investigator stating that “I interviewed Rebecca Stolarezyk and compiled handwritten notes
documenting the contents of the interview and what was said to me by her. My notes are
attached hereto... .”).) Indeed, Plaintiff refers to the notes as the “EEOC interview with
Rebecca Stolarczyk.” (£.g., D.E. 33 at 2.)

Caselaw teaches, however, that hearsay statements are not exempted from the hearsay bar
simply because they were related to a government officer or investigator. Thus, /n re Air Crash
Disaster at Stapleton Int’l Airport, Denver, Colorado, 720 F. Supp. 1493 (D. Col. 1989)
(Finesilver, C.J.), taught that while “[g]overnment accident investigation reports are generally
admissible under the public records exception [of Rule 803(8)] . . . portions of those reports or
exhibits may present other hearsay problems.” Jd. at 1497 (citation omitted). “Evidence reported
in a government document is only admissible to the extent that the maker of [the] document

could testify to that evidence were he present in court.” /d. (citing Denny v. Hutchinson Sales


Sedor or at any other time.'° (Def. SF 21.) At the end of the meeting, Sedor told Stolarczyk
that she should inform Sedor when she was well enough to return because Senator would do
whatever it could for her. (d.) Sedor did not terminate Stolarezyk."' (Id. J 23.) Sedor
considered Stolarezyk to have voluntarily resigned her employment with Senator.” (/d. 422.)

Sedor called Stolarczyk at home later on October 24, 2002, to tell her that Senator was
going to continue to pay for her medical insurance until February 2003, and, at Stolarezyk’s
request, gave written confirmation of this to her on October 28, 2002. (Def. SF 24.) Senator
continued to pay Stolarczyk’s medical insurance until August 2003. (id. 25.)

Stolarezyk was at her doctor’s office or at the hospital on October 15, 17, 18, 19, and 23,

2002. (Def. SF ] 17.) After her meeting with Sedor, she was at her doctor’s office or at the
hospital on October 25 and 30 and November 4 and 6, 2002, before her surgery on November 8,

2002. (Id. | 26.) Stolarczyk was treated with chemotherapy and radiation after her surgery,

‘© Plaintiff attempts to dispute that Stolarczyk did not request a leave of absence, but the
denial is supported by Stolarczyk’s EEOC charge and the EEOC investigator’s notes only. As
the Court discussed in detail, supra, the EEOC documents are not admissible evidence. Thus,
the statement is deemed admitted for lack of a denial supported by admissible record evidence.
See Malec, 191 F.R.D. at 584.

'! Plaintiff attempts to dispute this statement by offering Stolarczyk’s statement from her
EEOC charge that she was terminated by Sedor. (Pl. Resp. {[23.) As the Court discussed above,
the EEOC charge is not admissible evidence. Thus, the statement is deemed admitted for lack of
a denial supported by record evidence, See Malec, 191 F.R.D. at 584.

"2 Plaintiff attempts to dispute this statement by offering Stolarczyk’s statement from her
EEOC charge that she was terminated by Sedor. (PI. Resp. 23.) As the Court discussed above,
the EEOC charge is not admissible evidence. Thus, the statement is deemed admitted for lack of
a denial supported by record evidence. See Malec, 191 F.R.D. at 584. Moreover, nothing about
this particular statement—i.e., as to what Sedor considered to have happened—is material to the
bottom-line result, given that Plaintiff has pointed to no admissible record evidence of an adverse
job action sufficient to discharge Plaintiff's threshold burden on that score.

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Il. Summary Judgment Standard

Summary judgment is proper where “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). In determining whether there is a genuine issue of fact, the
court “must construe the facts and draw all reasonable inferences in the light most favorable to
the nonmoving party.” Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid
summary judgment, the opposing party must go beyond the pleadings and “set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). Summary judgment is proper against “a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 US. 317, 322 (1986).
Ill. Discussion

Plaintiff alleges that Stolarczyk was unlawfully discharged because of her disability and
that Senator failed to make reasonable accommodations to her known disability. Section
12112(a) of the ADA prohibits, among other things, discrimination “against a qualified
individual with a disability because of the disability of such individual in regard to . . . the
discharge of employees.” 42 U.S.C. § 12112(a); accord Buie v. Quad/Graphics, Inc., 366 F.3d
496, 502 (7th Cir. 2004). It is also unlawful under the ADA for an employer to fail to make
reasonable accommodations to the known physical or mental disabilities of an otherwise
qualified individual with a disability. 42 U.S.C. § 121 12(b)(5)(A); accord Green v, Nat'l Steel

Corp., Midwest Div., 197 F.3d 894, 897 (7th Cir. 1999). Section 12111(8) defines a “qualified

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various of Plaintiff's statements of additional fact, are supported only by inadmissible hearsay.
In particular, Senator objects to the use of Stolarczyk’s EEOC charge (D.E. 33, Ex. 3) and to
notes apparently taken by an EEOC investigator that document statements made by Stolarezyk
during an interview (id., Ex. 4). (See Def. Resp. ff] 1, 2, 4, 5; D.E. 35 at 2-5.) Plaintiff is using
these documents for the truth of the matters asserted in them to argue, for example, that
Stolarezyk was terminated by Senator rather than, as other evidence reflects, that she was not.

Defendant argues that these documents do not fall within any of the exceptions to the
generally applicable prohibition on hearsay contained in the Federal Rules of Evidence. Ina
supplemental brief ordered by the Court regarding these evidentiary issues (see D.E. 37), Plaintiff
does not dispute that Ms. Stolarczyk unfortunately died during the course of this litigation (and
prior to any deposition) and therefore cannot testify at any trial. Plaintiff nonetheless argues that
the EEOC charge meets the requisite guarantees of trustworthiness to be admitted under the
residual exception to the hearsay rule, see Fed. R. Evid. 807, and that the EEOC investigator’s
notes are admissible as factual findings resulting from an investigation authorized by law, see
Fed. R. Evid. 803(8)(C). As explained below, the Court agrees with Senator that the EEOC
charge and notes of the interview with Stolarczyk constitute inadmissible hearsay that is not
properly considered in the summary judgment analysis, given the fact that Ms. Stolarczyk would
be unavailable as a witness at trial and was never deposed in this case.

1. The EEOC Investigator’s Notes

Plaintiff argues that the EEOC investigator’s handwritten notes concerning Ms.

Stolarczyk’s statements are admissible as substantive evidence pursuant to Federal Rule of

Evidence 803(8)(C). (See D.E. 38 at 5-6.) This argument is respectfully rejected.


Court only considers those facts or additional facts that are presented in compliance with Local
Rule 56.1 (“L.R. 56.1”). The Seventh Circuit has “consistently and repeatedly upheld a district
court’s discretion to require strict compliance” with L.R. 56.1. See Bordelon v. Chicago Sch.
Reform Bd. Of Trs., 233 F.3d 524, 527 (7th Cir. 2000).

When denying a movant’s factual allegations, “a general denial is insufficient.” Malec v.
Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). Rather, “the nonmovant must cite specific
evidentiary materials justifying the denial.” Jd.; see also id. (failure to adhere to L.R. 56.1
requirements, including citation to specific evidentiary materials justifying denial, is equivalent
to admission). In deciding a summary judgment motion, a court may consider, along with
deposition testimony and other material discussed in Federal Rule of Civil Procedure 56(c) and
56(e), “any material that would be admissible or usable at trial, including properly authenticated
and admissible documents or exhibits.” Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir.
2001) (internal quotations omitted). A court must disregard, however, evidence that constitutes
inadmissible hearsay. See Davis v. G.N. Mortg. Corp., 396 F.3d 869, 874 n.3 (7th Cir. 2005)
(citing Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996)); Eisenstadt
v. Centel Corp., 1\3 F.3d 738, 742 (7th Cir. 1997) (“{H]earsay is inadmissible in summary
judgment proceedings to the same extent that it is inadmissible in a trial . . . except that affidavits
and depositions, which (especially affidavits) are not generally admissible at trial, are admissible
in summary judgment proceedings to establish the truth of what is attested or deposed .. .
provided, of course, that the affiant’s or deponent’s testimony would be admissible if he were
testifying live.”).

Here, Senator argues that most of Plaintiffs responses to its statements of fact, as well as


2002, until October 24, 2002. (Id. | 4.) Karen Sedor, Senator’s District Manager for its Chicago
and Detroit area facilities, hired Stolarczyk to work for Senator as an ocean export coordinator
and supervised her during her employment. (/d. Jf 7, 8, 11.) Stolarczyk’s duties were to book
ocean freight, to receive phone calls relating thereto, to give quotes relating thereto, and to do the
documentation required for ocean freight movement. (/d. §9.) It is undisputed that Stolarczyk’s
regular attendance was a central and critical part of her position. (/d. {| 10; PI. Resp to SFY 10
(admitting fact).)

Sedor first noticed that Stolarczyk was ill in late September and October 2002 because
Stolarezyk was turning yellow. (Def. SF 12). Between late September and October 14, 2002,
Stolarezyk took at least portions of occasional days off work to see a doctor with regard to her
jaundice and discomfort. (/d. 12; Pl. Resp. to SF { 12.) On or just prior to October 14, 2002,
Stolarczyk told Sedor that she was not feeling well and did not feel up to continuing to work.’
(Def. SF | 14.) The last day Stolarczyk came to work to perform her job was October 14, 2002,

and she never performed work for Senator after that date.* (Id. 4 15, 16.) On or about October

7 Plaintiff attempts to dispute this statement of fact. In support of that denial, Plaintiff
submits correspondence from Stolarczyk that was written by her at work on October 14, 2002.
(P1. Resp. to SF § 14.) This evidence does not dispute the evidence that Stolarczyk told Sedor
she was not feeling well enough to work, especially given Sedor’s testimony that the last day
Stolarezyk came to work to perform her job was October 14, 2002. (Def. SF { 15.) Thus, the
Court deems the statement admitted for lack of a denial supported by record evidence. See
Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000).

8 Plaintiff attempts to dispute these statements on the grounds that (1) they are not
supported by documentary evidence; (2) Senator has admitted that it did not keep records of
Stolarczyk’s attendance, including in the month of October 2002; and (3) Stolarezyk was paid
through October 30 or 31, 2002. (PI. Resp. to SF ff 15, 16.) None of these issues creates a
dispute of fact under Rule 56. Documentary evidence is not needed as long as the statement is
supported by affidavit testimony of a witness of personal knowledge who could competently
testify to the fact at trial. See Fed. R. Civ. P. 56(c). Sedor testified that she supervised

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which treatment ended in February 2003. (Jd. { 28, 29.) Stolarczyk’s physician did not release
Stolarezyk to work until March 2003. (/d. 30.) Sedor called Stolarezyk in mid-March 2003,
and was told by Stolarezyk that she was not feeling well enough to return to work. (/d. 431.)
Stolarczyk never informed Sedor that she was well enough to return to work.” (/d. 432.) The
time off work required by Stolarczyk to undergo her surgery and follow-up treatment exceeded
two months. (Jd. 433.) In fact, Stolarezyk was unavailable to work from mid-October 2002
until at least mid-March 2003."* (/d. 4 34.)

Stolarezyk filed a charge with the EEOC on April 4, 2003, alleging that she had been
discriminated against on the basis of her disability when Senator allegedly terminated her and
failed to accommodate her disability. (Am. Compl., Ex. A.) The EEOC issued her a right to sue
letter on September 23, 2003 (id., Ex. C), and Stolarezyk filed her original complaint some ten
weeks later on December 2, 2003 (D.E. 1). In the amended complaint filed after Stolarczyk’s
death, Plaintiff alleges that Senator violated Stolarczyk’s rights under the ADA by terminating
her because she had cancer and by failing to accommodate her need for time off work to undergo

surgery and treatment. (Am. Compl}. { 22-29.)

3 Plaintiff attempts to dispute this statement by offering Stolarczyk’s statements from
her EEOC charge and the EEOC investigator’s notes that she was not allowed to return to work.
(Pl. Resp. | 32.) As the Court discussed above, the EEOC documents are not admissible
evidence. Thus, the statement is deemed admitted for lack of a denial supported by record
evidence. See Malec, 191 F.R.D. at 584,

‘4 Plaintiff attempts to dispute this statement by offering Stolarczyk’s statement from her
EEOC charge that she anticipated returning to work at the end of January 2003. (PI. Resp. { 34.)
As the Court discussed above, the EEOC charge is not admissible evidence. Thus, the statement
is deemed admitted for lack of a denial supported by record evidence. See Malec, 191 F.R.D. at
584. In any event, what she anticipated does not create a dispute as to what actually occurred.

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