Seventh Circuit: Contradictory Evidence Cannot Be “Admitted” as a “Gotcha” on Summary Judgment
Appellate Law Update 03/05/14 E. King Poor, Vincent Angermeier, William Walden
Summary judgment practice in federal court requires the non-moving party to specifically respond to alleged statements of undisputed fact. And certain courts, such as the Northern District of Illinois and the Eastern District of Wisconsin, have their own familiar local rule, Rule 56.1, requiring parties to respond to their opponents’ statements of undisputed facts, point-by-point, with the admonition that a failure to do so means the court may adopt the moving party’s version of events. Recently, the Court of Appeals for the Seventh Circuit in Perez v. Thorntons, Inc., 731 F.3d 699 (7th Cir. 2013), appears to have added an exception: By failing to respond, parties do not necessarily “admit” facts that are contradicted by other evidence in the record.
The appeal arose from a discrimination suit in which a retail store employer fired the plaintiff for “selling” herself 80 candy bars at a steep discount. After these acts came to light, the plaintiff claimed that her supervisor had approved this practice. The supervisor denied this, and the employer relied on the supervisor’s version to fire the plaintiff.
The plaintiff filed suit in the Northern District of Illinois under Title VII, alleging national origin and gender discrimination. She claimed that her supervisor had also violated company policy by ringing up false purchases to conceal recent inventory losses from management, yet he had received only a written reprimand. This allegedly disparate treatment, which the plaintiff believed was the product of her gender and ethnicity, was at the center of her case.
The employer moved for summary judgment and filed a statement of undisputed facts, which included the proposed fact that the plaintiff and her supervisor had been punished by different decision makers, a fact that would undermine her theory of disparate treatment if true. When she failed to directly challenge that fact, as required by Local Rule 56.1, the district court deemed this fact admitted and granted summary judgment.
On appeal, in a two-to-one decision, the court concluded that failing to directly respond to the Rule 56.1 statement was not by itself grounds for summary judgment. The majority recognized that while the plaintiff could have responded more clearly to the statement of undisputed facts, her “admission” would not stand in the face of contradictory evidence, pointing to evidence that the manager who fired her had also been involved in the decision to reprimand the supervisor. Id. at 705-06. The problem, as the court described it, was that the employer’s Rule 56.1 statement contained other facts that essentially contradicted the fact that it sought to have deemed admitted. Id. at 706. Thus, the court continued, if the moving party has “undermined” its own Rule 56.1 statement with contradictory evidence, the non-movant’s failure to comply with 56.1 is not decisive. To do otherwise, the court noted, would be to “reward” parties who “successfully obfuscate the record and engage in ‘gotcha’ litigation tactics.” Id. Accordingly, the majority remanded the case, concluding that a jury should decide whether a single decision maker had treated the plaintiff differently from her supervisor.
Judge Ripple dissented and maintained that the majority had tried to make the plaintiff’s case for her (despite her failure to comply with Rule 56.1) by “scour[ing] the record in a futile search for factual disputes.” Id. at 713 n.3. The dissent concludes that [“t]his decision signals the end of Rule 56.1 statements as an effective means of narrowing the factual issues before the district courts.” And “[i]t will unduly confuse and complicate the tasks of the those who judge, litigate, and counsel in the important area of discrimination law.” Id. at 717-18.
Time will tell how far and wide the Perez decision will be applied in other cases. In the meantime, the decision is significant for revealing a divergence of opinions among federal judges as to how to treat failures to comply with the local rules governing motions for summary judgment. The opinion serves as a caution for parties to avoid an over-reliance on an opponent’s failure to fully respond to allegations of undisputed facts and to be alert to other evidence that reinforces what would be deemed admitted under the local rule. The majority’s view in Perez may be seen as not permitting a single failure to comply with the local rule as trumping other evidence that is contradictory.
If you have questions about the Perez case or the local summary judgment rule generally, please contact King Poor (312-715-5143 / email@example.com), Vincent Angermeier (312-715-5219 /