much is needed to cross the line from nonactiénable to actionable
conduct. Yet on other occasions that court has found quite
comparable activity to be sufficient to support a plaintiff's
claim. In this instance the potential for crossing over the line
to possible liability is surely arguable. And as the Farrow
Appendix has pointed out, any rejection of a Rule 56
motion--whether at the District Court level or on appeal--sends
the litigants back to square one to present the issues at trial.

Any reading of DataKom's Memorandum and McKinney's
responsive Memorandum leaves the reader with the strong sense
that two wholly different cases are under discussion. As
Russell, 243 F.3d at 340 said earlier this year, “summary
judgment is a singularly inappropriate time to resolve a ‘he
said, she said' kind of dispute.” What this case poses is a
classic situation for submission to a factfinding jury that can,
properly instructed regarding the applicable law (as to which it
does not appear the parties differ), decide whose version should
be accepted and hence which side should prevail.

As the Farrow Appendix and its later opinion suggest, if
McKinney were to prevail at trial and if she were then successful
in obtaining a fee-shifting award that would encompass the work
done in responding to the current Rule 56 motion, that would
presumably produce a no-harm, no-foul situation. If however

DataKom ends up winning at trial, it will then be time to


period of limitations under Title VII, even though such earlier
acts or manifestations could not themselves be the subject of a
viable claim because of the 300-day limit (in the sexual
harassment context, see Russell v. Board of Trustees of Univ. of
Ill. at Chicago, 243 F.3d 336, 343 (7% Cir. 2001)). Hence this
Court rejects the Chinese Wall sought to be erected by DataKom in
that respect.

Second, despite the universally accepted doctrine that all
evidence, and all reasonable inferences to be drawn from such
evidence, must be viewed through a lens favorable to the putative

summary judgment target (see, e.g., St. Louis N. Joint Venture v.

P_& L Enters., Inc., 116 F.3d 262, 264, 265 n.2 (7th Cir. 1997)),
DataKom essentially treats McKinney's principal confirmatory
witness Don Kohloff (“Kohloff”) as a nonperson. Its Ex. 13
reproduces just two pages (Dep. 17-18) from Kohloff's 65-page
deposition (McKinney Ex. 3). Yet McKinney's responsive
Memorandum points to numerous aspects of his testimony (such as
testimony found at his Dep. 8-10, 13, 20-21 and 26-28) as
corroborative of Gomez' ongoing activities that could be viewed
by a reasonable factfinder as sexual harassment that could
potentially trigger employer liability on DataKom's part.

It is of course true that our Court of Appeals has often
sent mixed signals in the sexual harassment area, sometimes to

the point of approaching a factfinder's role in determining how


consider whether it should nonetheless be required to bear the
incremental expenses imposed on McKinney in connection with the
current dry run. In the meantime, this action is set for a
status hearing at 8:45 a.m. December 14, 2001 to discuss the

necessary steps and timetable to ready the case for trial.

Milton I. Shadur
Senior United States District Judge

Date: December 5, 2001


Minage Order Form (0697)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Milton I. Shadur

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 01C 817 DATE 12/5/2001
CASE Jodi McKinney vs. Datakom, Inc.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) ao Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) oO Answer brief to motion due . Reply to answer brief due.

(4) Oo Ruling/Hearing on__set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on setfor sat

(6) QO Pretrial conference{held/continued to] [set for/re-set for] on set for at :

(7) Oo Trial[set for/re-set for] on at

(8) 0 [Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) O General Rule21 OFRCP4I(a)(1) OO FRCP41(a)(2).

(10) WI [Otherdocket entry) Enter Memorandum Opinion and Order. Datakom’s Rule 56 motion is denied.
(11-1) This action is set for a status hearing on December 14, 2001 at 8:45 a.m. to discuss the necessary
steps and timetable to ready the case for trial.

(1) @f [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. runes of wotices

Document
Number

Y | Notices mailed by judge’s staff.

DEC 06 2001

Notified counsel by telephone. fate docketed

Docketing to mail notices. an
Qy
Mail AO 450 form. Sous deputypitials
Copy to judge/magistrate judge. . wa CNG
1218/2001
courtroom pe GEG Oy ts c2 date mailed notice
SN deputy’s sw

initials

Date/time received in

central Clerk’s Office mailing deputy initials

f



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

4y

JODI D. MCKINNEY,

vas Xp lee
Plaintiff, ) 9 “D
v. No. 01 ¢ 817 dy
DATAKOM, INC.,
Defendant. }
MEMORANDUM OPINION AND ORDER
DataKom Publishing Corp. (“DataKom”) has filed a Fed. R.
Civ. P. ("Rule”) 56 summary judgment in this Title VII action

brought against it by its ex-employee Jodi McKinney (“McKinney”),
in which McKinney charges DataKom with sexual harassment and then
with retaliation for her opposition to that course of conduct.
Two of the three scheduled legs of the Rule 56 and LR 56.1
procedure’ have been completed, but the clear presence of genuine
issues of material fact obviates the need for the third leg
(DataKom's reply) and requires the denial of its Rule 56 motion.
Before launching on what is so often a major logistical
effort required to comply with the demands of LR 56.1, DataKom
would have done better to take heed of this Court's analysis and
caveat set out in the Appendix to its July 22, 1999 opinion in

Farrow v. Humana Health Plan, Inc., 1999 WL 558132, quoted in

1 LR 56.1 is designed to facilitate the resolution of
Rule 56 motions by calling for evidentiary statements and
responses to such statements (in each instance with record
citations), thus highlighting the existence or nonexistence of
factual disputes.


part in the later Farrow opinion, 69 F.Supp.2d 1050, 1062-63
(N.D. Ill. 1999). In this instance the required LR 56.1
statements, evidentiary materials and memoranda at steps 1 and 2
alone combine to form a stack over 4-1/2 inches high, while the
same effort could have been expended more profitably in
preparation for trial (calling for submission of a far more
modest and less demanding final pretrial order, with no trial
briefs being required) .

Just a few points should be made in substantive terms as
illustrative of the presence of such material and disputed
factual issues. They may be dealt with briefly.

For one thing, DataKom Mem. 6-7 is simply wrong in
contending that McKinney cannot point to sexually harassing
activity by her then co-worker Ed Gomez (“Gomez”) during the
period when McKinney worked for DataKom as a contractor, before
she became a DataKom employee in December 1999. Because the
gravamen of McKinney's claim is the existence of a hostile work
environment, she is entitled to adduce evidence of the genesis of
that claimed environment before her status changed to that of a
DataKom employee, at which point the matter could become
potentially actionable under Title VII for the first time. This
is no different from the uniform caselaw holdings that permit a
plaintiff to introduce evidence of conduct manifesting an

employer's discriminatory intent that has antedated the 300-day