No.

03 C 8709
United States District Court, N.D. Illinois

Stolarczyk v. Senator Intern. Freight Forwarding

376 F. Supp. 2d 834 (N.D. Ill. 2005)
Decided Jul 8, 2005

No. 03 C 8709. Defendant's statement of facts ("Pl. Resp. to SF"),

Plaintiff's L.R. 56.1 statement of additional facts
835 July 8, 2005. *835
("Pl. SAF"), and Defendant's response to
Anna Coleen Pittman, Anthony J. Madonia Plaintiff's statement of facts ("Def. Resp. to
Associates, Ltd., Chicago, IL, for Plaintiff. 2 SAF"). As is the practice in this district, the *2
Court only considers those facts or additional facts
Whitman Henry Brisky, Leon E. Lindenbaum,
that are presented in compliance with Local Rule
Lindenbaum, Coffman, Kurlander Brisky, Ltd.,
56.1 ("L.R. 56.1"). The Seventh Circuit has
Chicago, IL, for Defendant.
"consistently and repeatedly upheld a district
court's discretion to require strict compliance"
837 *837
with L.R. 56.1. See Bordelon v. Chicago Sch.
Reform Bd. Of Trs., 233 F.3d 524, 527 (7th Cir.
MEMORANDUM OPINION AND 2000).
ORDER
When denying a movant's factual allegations, "a
general denial is insufficient." Malec v. Sanford,
FILIP, District Judge.
191 F.R.D. 581, 584 (N.D. Ill. 2000). Rather, "the
Plaintiff Lester Stolarczyk ("Plaintiff") is suing, on nonmovant must cite specific evidentiary
behalf of the estate of Rebecca Stolarczyk materials justifying the denial." Id.; see also id.
("Stolarczyk"), Senator International Freight (failure to adhere to L.R. 56.1 requirements,
Forwarding, LLC ("Defendant" or "Senator"), for including citation to specific evidentiary materials
allegedly unlawfully terminating Stolarczyk and justifying denial, is equivalent to admission). In
failing to offer her a reasonable accommodation deciding a summary judgment motion, a court
for her alleged disability in violation of the may consider, along with deposition testimony and
Americans with Disabilities Act, 42 U.S.C. §§ other material discussed in Federal Rule of Civil
12101, et seq. (D.E. 24 (Am. Compl.).) The case Procedure 56(c) and 56(e), "any material that
is before the Court on Defendant's motion for would be admissible or usable at trial, including
summary judgment ("Motion"). (D.E. 27.) For the properly authenticated and admissible documents
reasons stated below, the Motion is granted. or exhibits." Smith v. City of Chicago, 242 F.3d
737, 741 (7th Cir. 2001) (internal quotations
I. Background 838 omitted). A *838 court must disregard, however,
A. Preliminary Issues evidence that constitutes inadmissible hearsay. See
Davis v. G.N. Mortg. Corp., 396 F.3d 869, 874 n. 3
The relevant facts are taken from Defendant's (7th Cir. 2005) (citing Bombard v. Fort Wayne
Local Rule 56.1 ("L.R. 56.1") statement of facts Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.
and exhibits ("Def. SF"), Plaintiff's response to 1996)); Eisenstadt v. Centel Corp., 113 F.3d 738,

1
 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

742 (7th Cir. 1997) ("[H]earsay is inadmissible in considered in the summary judgment analysis,
summary judgment proceedings to the same extent given the fact that Ms. Stolarczyk would be
that it is inadmissible in a trial . . . except that unavailable as a witness at trial and was never
affidavits and depositions, which (especially deposed in this case.
affidavits) are not generally admissible at trial, are
1. The EEOC Investigator's Notes
admissible in summary judgment proceedings to
establish the truth of what is attested or deposed . . Plaintiff argues that the EEOC investigator's
. provided, of course, that the affiant's or handwritten notes concerning Ms. Stolarczyk's
deponent's testimony would be admissible if he statements are admissible as substantive evidence
were testifying live."). pursuant to Federal Rule of Evidence 803(8)(C). (
See D.E. 38 at 5-6.) This argument is respectfully
Here, Senator argues that most of Plaintiff's
4 rejected. *4
3 responses to its statements of fact, as well as *3
various of Plaintiff's statements of additional fact, Rule 803(8)(C) excepts from the general hearsay
are supported only by inadmissible hearsay. In bar "[r]ecords, reports, statements, or data
particular, Senator objects to the use of compilations, in any form, of public offices or
Stolarczyk's EEOC charge (D.E. 33, Ex. 3) and to agencies, setting forth . . . in civil actions and
notes apparently taken by an EEOC investigator proceedings . . . factual findings resulting from an
that document statements made by Stolarczyk investigation made pursuant to authority granted
during an interview ( id., Ex. 4). ( See Def. Resp. by law, unless the sources of information or other
¶¶ 1, 2, 4, 5; D.E. 35 at 2-5.) Plaintiff is using circumstances indicate lack of trustworthiness."
these documents for the truth of the matters
To begin, it is clear from a review of the proffered
asserted in them to argue, for example, that
investigator's notes that they cannot fairly be
Stolarczyk was terminated by Senator rather than,
characterized as "factual findings" resulting from
as other evidence reflects, that she was not.
an investigation made pursuant to authority
Defendant argues that these documents do not fall granted by law. Instead, a review of the notes ( see
within any of the exceptions to the generally D.E. 33, Ex. 4) makes clear that they are instead
applicable prohibition on hearsay contained in the selective portions of notes concerning statements
Federal Rules of Evidence. In a supplemental brief made by Ms. Stolarczyk during an interview with
ordered by the Court regarding these evidentiary an EEOC investigator. ( See, e.g., D.E. 33, Ex.
issues ( see D.E. 37), Plaintiff does not dispute Akbar Aff. (affidavit of EEOC investigator stating
that Ms. Stolarczyk unfortunately died during the 839 that "I interviewed Rebecca Stolarczyk *839 and
course of this litigation (and prior to any compiled handwritten notes documenting the
deposition) and therefore cannot testify at any contents of the interview and what was said to me
trial. Plaintiff nonetheless argues that the EEOC by her. My notes are attached hereto. . . .").)
charge meets the requisite guarantees of Indeed, Plaintiff refers to the notes as the "EEOC
trustworthiness to be admitted under the residual interview with Rebecca Stolarczyk." ( E.g., D.E.
exception to the hearsay rule, see Fed.R.Evid. 807, 33 at 2.)
and that the EEOC investigator's notes are
Caselaw teaches, however, that hearsay statements
admissible as factual findings resulting from an
are not exempted from the hearsay bar simply
investigation authorized by law, see Fed.R.Evid.
because they were related to a government officer
803(8)(C). As explained below, the Court agrees
or investigator. Thus, In re Air Crash Disaster at
with Senator that the EEOC charge and notes of
Stapleton Int'l Airport, Denver, Colorado, 720 F.
the interview with Stolarczyk constitute
Supp. 1493 (D. Col. 1989) (Finesilver, C.J.),
inadmissible hearsay that is not properly

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 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

taught that while "[g]overnment accident would rely for their truth to support Plaintiff's
investigation reports are generally admissible statements of fact and denials. Although the Court
under the public records exception [of Rule is sympathetic to the Plaintiff in that Ms.
803(8)] . . . portions of those reports or exhibits Stolarczyk has unfortunately died, if the EEOC
may present other hearsay problems." Id. at 1497 investigator were called as a witness at trial, the
(citation omitted). "Evidence reported in a Court could not allow that individual to relate rank
government document is only admissible to the hearsay in the form of out-of-court statements
extent that the maker of [the] document could made by an interested party and in reasonable
testify to that evidence were he present in court." 6 anticipation of ensuing *6 litigation. As the
5 Id. (citing Denny v. Hutchinson Sales *5 Corp., Seventh Circuit has noted, "the EEOC file is a
649 F.2d 816, 821 (10th Cir. 1981)); accord `mish-mash of self-serving and hearsay statements
Frazier v. Ind. Dept. of Labor, No. IP01-0198-C- and records; . . . justice requires that the testimony
T/G, 2003 WL 21254424, at *4 (S.D. Ind. Mar. of witnesses be given in open court, under oath,
17, 2003) (excluding numerous proffered matters and subject to cross-examination." Tulloss, 776
from an EEOC file, including the EEOC charges F.2d at 154 (internal quotation marks and citation
and position statements of the complainants, on omitted). The Court would follow the Seventh
grounds of, inter alia, the general hearsay Circuit's admonition at any trial and exclude the
prohibition and Rule 403) (citing Tulloss v. Near hearsay, as nothing in the Plaintiff's invocation of
N. Montessori Sch., 776 F.2d 150, 154 (7th Cir. Rule 803(8) would allow for the admission of the
1985)); Lewis v. Velez, 149 F.R.D. 474, 487 proffered out-of-court interview statements by Ms.
(S.D.N.Y. 1993) (noting that "Rule 803(8) does 840 Stolarczyk to the EEOC investigator.2 *840
not circumvent the hearsay rule" and noting that "
2 While it is possible that the EEOC
[t]his principle excludes much of the Bryan Report
somewhere made internal "findings"
[concerning a prison incident], which is comprised
concerning this case, Plaintiff does not
largely of hearsay statements from correction offer any such documents or evidence, and
officers involved in the . . . incident."); Budden v. instead only proffers the selected interview
United States, 748 F. Supp. 1374, 1377-78 (D. notes. The Court notes that the EEOC often
Neb. 1990) (stating that "[e]vidence reported in a (perhaps typically) resists production of
government document is only admissible to the internal deliberative or evaluative materials
extent that the maker of the document could testify under an invocation of privilege. See, e.g.,
to that evidence were he or she present in court," Lang v. Kohl's Food Stores, Inc., 186
and accordingly "disregard[ing]" "the reported F.R.D. 534, 535 (W.D. Wis. 1998) (Crabb,

statements" of numerous witnesses).1 J.) (sustaining deliberative process

objection by the EEOC).
1 The district court judgment in Budden was

vacated on other grounds in Budden v. None of the three cases cited by Plaintiff alters the
United States, 963 F.2d 188 (8th Cir. analysis above. Chandler v. Roudebush, 425 U.S.
1992). 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) (cited
by Plaintiff in D.E. 33 at 5), simply noted in a
These cases are consistent with Fed.R.Evid. 805,
footnote that prior "administrative findings"
which requires that hearsay within hearsay may be
concerning employment discrimination cases
admitted only if there is an exception for each
involving federal employees could be admitted at
"layer" of hearsay. See Fed.R.Evid. 805. Plaintiff
trial. Id. at 864 n. 39. But, as explained above, the
has not offered any exception for the statements
interview notes that Plaintiff proffers are not
made by Stolarczyk contained in the EEOC notes
"administrative findings," they are just shorthand
— which are the statements upon which Plaintiff
notes of statements that Ms. Stolarczyk made

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 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

before her death, offered for the truth of those out- 2. Ms. Stolarczyk's EEOC Charge
of-court assertions. Similarly, Beech Aircraft v.
Plaintiff also seeks to rely on Ms. Stolarczyk's
Rainey, 488 U.S. 153 (1988), addressed the
EEOC charge that she submitted when initiating
question of whether Rule 803(8)(C)'s exception to
the EEOC proceedings. Plaintiff contends that this
the hearsay prohibition "for public investigatory
EEOC charge should be exempted from the
reports containing `factual findings,' extends to
general prohibition against hearsay evidence under
conclusions and opinions contained in such
Fed.R.Evid. 807, the residual exception to the
reports." Id. at 156. Again, the proffered interview
hearsay bar.4
notes are not public investigatory reports, nor do
they contain "factual findings." Finally, to the 4 In 1997, the contents of former Rules

7 extent Plaintiff offers Young v. *7 James Green 803(24) and 804(b)(5) were combined and
Mgmt. Inc., 327 F.3d 616 (7th Cir. 2003),3 that transferred to a new Rule 807 to facilitate

case affirmed the exclusion at trial of additions to Rules 803 and 804. No change
in meaning was intended by the
administrative findings of discrimination by the
amendment. See Fed.R.Evid. 807, advisory
EEOC. Id. at 624. In this case, Plaintiff has not
committee's notes.
offered such findings, but rather has offered
hearsay notes of out-of-court statements by Ms. If a statement not covered by the hearsay
Stolarczyk. In addition, the appellants in that case 8 exceptions in Rules 803 or 804 has "equivalent *8
did not even challenge the district court's decision circumstantial guarantees of trustworthiness,"
(mirrored by this Court here) not to admit the Rule 807 allows a court to admit the statement if it
contents of the EEOC file. See id. at 624 n. 5 determines "(A) the statement is offered as
(noting that the appellants did not even challenge evidence of material fact; (B) the statement is
the district court's decision to exclude raw 841 more *841 probative on the point for which it is
evidence from the EEOC files, based on the offered than any other evidence which the
"`general unreliability of these files in general.'") proponent can procure through reasonable efforts;
(quoting district court). and (C) the general purposes of these rules and the
3 In Plaintiff's filing, Plaintiff cited " Young interests of justice will best be served by
Mays v. Glen Management 372 F.3d 616, admission of the statement into evidence."
623 (7th Cir. 2003)." (D.E. 33 at 5.) An Fed.R.Evid. 807. Precedent teaches that "`[o]ut-of-
initial attempt at retrieving the case court statements are generally inadmissible
electronically revealed that the case because they are presumed to be unreliable.'"
corresponding to the federal reporter cite is United States v. Hall, 165 F.3d 1095, 1110 (7th
GTE Corp. v. Allendale Mut. Ins. Co., 372 Cir. 1995) (quoting United States v. Hooks, 848
F.3d 598 (3d Cir. 2004), which does not F.2d 785, 796 (7th Cir. 1988)) (emphasis added;
relate to the issues at hand. Furthermore, a analyzing former Rules 803(24) and 804(b)(5)).
search for cases involving "Glen
"Thus, the party wishing to introduce hearsay
Management" revealed nothing material.
evidence must rebut the presumption of
Finally, additional searches uncovered
unreliability by appropriate proof of
Young v. James Green Mgmt. Inc., 327 F.3d
`trustworthiness.'" Id. (internal quotation omitted).
616 (7th Cir. 2003), which appears to be
the case Plaintiff offers.
In addition to the presumption of unreliability
afforded to hearsay statements, Plaintiff also faces
For the reasons stated above, the interview notes the Seventh Circuit's repeated "emphasis on
of out-of-court statements made by Ms. Stolarczyk narrowly construing the residual provision,"
will not be considered in this summary judgment Akrabawi v. Carnes Co., 152 F.3d 688, 697 (7th
proceeding. Cir. 1998) (citing United States v. Sinclair, 74 F.3d

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 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

753, 759 (7th Cir. 1996)), and the Seventh 1993) ("[W]e adhere to the well-established rule
Circuit's teaching that such narrow construction is that documents made in anticipation of litigation
appropriate to prevent the residual exception are inadmissible under the business records
"from becoming the exception that swallows the exception [to the general hearsay prohibition].").
hearsay rule." Id. (citing Sinclair, 74 F.3d at 759); The statements contained in the documents are
accord, e.g., NLRB v. United Sanitation Serv., Div. favorable to Stolarczyk and to her alone, and she
of Sanitas Serv. Corp., 737 F.2d 936, 941 (11th had substantial motivation, with all respect, to
Cir. 1984) ("[U]nless application of [the embellish, as she clearly appreciated that she was
predecessor to Rule 807] be limited to laying out her litigation position. To be sure, as
circumstances evidencing a clear basis of Plaintiff highlights, the statements were given
trustworthiness, exceptions to the rule against under a penalty of perjury, but Ms. Stolarczyk was
hearsay could swallow the rule.") (internal never subject to cross-examination by anyone
quotation omitted)). concerning the statements and there is nothing
inherently trustworthy about the statements
In determining whether a statement is sufficiently
(indeed, precedent instructs that, based on the
reliable to qualify under the residual exception to
context they were made in anticipation of potential
the general hearsay prohibition, a court "should
842
10 litigation, the *10 *842 presumption is in favor of
9 examine, among other factors: (1) *9 `the probable
untrustworthiness). In sum, although at least some
motivation of the declarant in making the
of the factors identified in precedent support
statement;' (2) `the circumstances under which it
potential admissibility ( e.g., the statements were
was made;' and (3) `the knowledge and
made under oath, the testimony concerns a subject
qualifications of the declarant.'" Hall, 165 F.3d at
within the hearsay declarant's personal knowledge,
1110 (quoting Cook v. Hoppin, 783 F.2d 684, 690-
the hearsay declarant never recanted her
91 (7th Cir. 1986)). The Court also may
testimony), there are also substantial factors
appropriately consider, when exercising its
weighing against admissibility ( e.g., the witness
informed discretion concerning admissibility, any
was never subject to cross-examination, the
other circumstances concerning the statement; no
hearsay declarant was an interested party, the
particular criterion is a necessary prerequisite. See
statements were made in anticipation of potential
id. at 1111 (discussing various possible other
litigation). Under the circumstances, the ordinary
factors, including the character of the declarant for
presumption in Seventh Circuit precedent against
truthfulness and honesty, and whether the hearsay
admission of hearsay statements under the residual
statement is corroborated).
exception controls. Or, put differently, Plaintiff has
After considering the statements in the EEOC failed to rebut the applicable presumption of
charge, the Court respectfully declines the inadmissibility.
invitation to admit them under the residual hearsay
Plaintiff relies heavily on the fact that, given
exception. As stated before, these statements are
Stolarczyk's death after the instigation of the
presumed to be inadmissible. Precedent teaches
lawsuit, she is unavailable to testify as to the
that courts typically should not admit documents
statements in the EEOC documents. While the
made in anticipation of litigation as they "lack
Court agrees with Plaintiff that the EEOC
sufficient guarantees of trustworthiness to be
documents constitute the only evidence available
excerpted from the hearsay rule." Moffett v.
that gives Stolarczyk's version of events, they are
McCauley, 724 F.2d 581, 584 n. 1 (7th Cir. 1984)
not the only evidence available as to the events
(citing Palmer v. Hoffman, 318 U.S. 109, 111
surrounding the end of her employment with
(1943)) (considering former Rule 803(24)); see
Senator. ( See, e.g., D.E. 27 (Sedor Aff.).) Thus,
also U.S. v. Blackburn, 992 F.2d 666, 670 (7th Cir.

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 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

the "clear necessity" which Plaintiff argues (D.E. seen as an essential part of the truth-finding
37 at 3) is only necessary given that the other process. Under the circumstances presented, the
evidence offered concerning the same events does 843 EEOC charge shall not be considered.5 *843
not corroborate or support Stolarczyk's litigation
5 As best the Court can tell, after Ms.
position. Additionally, a witness's death is not
Stolarczyk initiated EEOC proceedings,
enough to justify discarding the trustworthiness
and after this lawsuit also was filed, neither
requirement of the residual hearsay exception. See, Plaintiff nor Ms. Stolarczyk invoked
e.g., United Sanitation Serv., 737 F.2d at 940-41 Fed.R.Civ.P. 27 to attempt to secure Ms.
(reversing ALJ's decision to admit dead witness's Stolarczyk's testimony in admissible form
self-serving affidavit because no "clear basis of for purposes of this lawsuit.
trustworthiness" found). Indeed, Congress has
specifically delineated circumstances for 3. The Anastasia O'Donnell Undisclosed Witness
admission of evidence where a declarant is Issue
unavailable, see Fed.R.Evid. 803, so Stolarczyk's Senator also objects to Plaintiff's statements of
death cannot, alone, justify the use of hearsay fact supported only by the affidavit testimony of
11 evidence. *11 Anastasia O'Donnell. Senator asserts that
In this regard, the Court notes that the issue of a O'Donnell was not disclosed as a potential witness
deceased witness is one that the law has addressed under Federal Rule of Civil Procedure 26(a).
for many years. It is not irrelevant that the "dying Federal Rule of Civil Procedure 37(c)(1) states,
declaration" exception to the hearsay rule — for 12 "A party that without substantial *12 justification
the statements of a deceased witness made while fails to disclose information required by Rule
under an apprehension of impeding death — has 26(a) or 26(e)(1) . . . is not, unless such failure is
long been understood to be a relatively narrow harmless, permitted to use as evidence at a trial, at
one. See, e.g., Carver v. United States, 164 U.S. a hearing, or on a motion any witness or
694, 697 (1897) ("Dying declarations are a information not so disclosed." The following
marked exception to the general rule that hearsay factors guide the Court's decision whether to
testimony is not admissible, and are received from exclude evidence pursuant to Rule 27(c): "(1) the
the necessities of the case, and to prevent an entire prejudice or surprise to the party against whom the
failure of justice, as it frequently happens that no evidence is offered; (2) the ability of the party to
other witnesses to the homicide are present. . . . cure the prejudice; (3) the likelihood of disruption
They are received only when the court is satisfied to the trial; and (4) the bad faith or willfulness
that the witness was fully aware of the fact that his involved in not disclosing the evidence at an
recovery was impossible, and in this particular earlier date." David v. Caterpillar, 324 F.3d 851,
requirement the law is very stringent."); accord, 857 (7th Cir. 2003) (citing, inter alia, Bronk v.
e.g., Pfeil v. Rogers 757 F.2d 850, 860-61 (7th Cir. Ineichen, 54 F.3d 425, 428 (7th Cir. 1995)). In
1985) (excluding out-of-court statements of particular, harmlessness may be proved by a
deceased witness related in affidavit where showing that a witness was disclosed during
statements did not qualify as dying declarations). discovery. Weiland v. Linear Const., Ltd., No. 00-
While the Court is not unsympathetic to the fact 6172, 2002 WL 31307622, at *2 (N.D. Ill. Oct.
that Ms. Stolarczyk unfortunately has died, the 15, 2002). Plaintiff offers deposition testimony
rules of evidence have been created over many from Lester Stolarczyk in which Anastasia
years and they, at least on balance, are generally O'Donnell was identified as (1) Stolarczyk's
daughter who (2) attended doctor's appointments
with her. ( See D.E. 39, Ex. C at 12, 17, 23, 39.)

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 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

Defendant thus had notice that O'Donnell may a doctor with regard to her jaundice and
have had information relevant to the case, and the discomfort. ( Id. ¶ 12; Pl. Resp. to SF ¶ 12.) On or
Court declines to exclude her affidavit under Rule just prior to October 14, 2002, Stolarczyk told
39 because the failure to disclose O'Donnell in Sedor that she was not feeling well and did not
Plaintiff's Rule 26 disclosures was harmless. feel up to continuing to work.7 (Def. SF ¶ 14.) The
844 *844 last day Stolarczyk came to work to perform
B. Facts6
her job was October 14, 2002, and she never
6 The Court notes that many of Plaintiff's performed work for Senator after that date.8 ( Id.
Statements of Additional Facts are 14 ¶¶ 15, 16.) On or about October *14 21, 2002,
supported by inadmissible or otherwise Sedor was advised by another Senator employee
improper evidence and are thus not
that Stolarczyk had been diagnosed with cancer. (
included in the recitation of the facts. ( See,
Id. ¶ 18.)
e.g., Pl. SAF ¶¶ 1-2 (EEOC charge), 3
(inadmissible hearsay), 5 (EEOC notes), 8 7 Plaintiff attempts to dispute this statement

(Sedor Dep. cited does not support of fact. In support of that denial, Plaintiff
statement).) Additionally, legal conclusions submits correspondence from Stolarczyk
are not properly submitted as statements of that was written by her at work on October
fact. ( Id. ¶ 11 (offering Sedor's answer to 14, 2002. (Pl. Resp. to SF ¶ 14.) This
the question whether there was need to evidence does not dispute the evidence that
provide Stolarczyk with a reasonable Stolarczyk told Sedor she was not feeling
accommodation).) See Greer v. Bd. of well enough to work, especially given
Educ. of City of Chicago, 267 F.3d 723, Sedor's testimony that the last day
727 (7th Cir. 2001). Stolarczyk came to work to perform her
job was October 14, 2002. (Def. SF ¶ 15.)
Senator is in the business of transporting freight Thus, the Court deems the statement
internationally by air or water. (Def. SF ¶ 3.) admitted for lack of a denial supported by
Stolarczyk was employed by Senator at its Mt. record evidence. See Malec v. Sanford, 191
13 Prospect, Illinois, facility from May 15, *13 2002, F.R.D. 581, 584 (N.D. Ill. 2000).
until October 24, 2002. ( Id. ¶ 4.) Karen Sedor,
8 Plaintiff attempts to dispute these
Senator's District Manager for its Chicago and
statements on the grounds that (1) they are
Detroit area facilities, hired Stolarczyk to work for
not supported by documentary evidence;
Senator as an ocean export coordinator and (2) Senator has admitted that it did not
supervised her during her employment. ( Id. ¶¶ 7, keep records of Stolarczyk's attendance,
8, 11.) Stolarczyk's duties were to book ocean including in the month of October 2002;
freight, to receive phone calls relating thereto, to and (3) Stolarczyk was paid through
give quotes relating thereto, and to do the October 30 or 31, 2002. (Pl. Resp. to SF ¶¶
documentation required for ocean freight 15, 16.) None of these issues creates a
movement. ( Id. ¶ 9.) It is undisputed that dispute of fact under Rule 56.
Stolarczyk's regular attendance was a central and Documentary evidence is not needed as

critical part of her position. ( Id. ¶ 10; Pl. Resp to long as the statement is supported by

SF ¶ 10 (admitting fact).) affidavit testimony of a witness of personal

knowledge who could competently testify
Sedor first noticed that Stolarczyk was ill in late to the fact at trial. See Fed.R.Civ.P.56(c).
September and October 2002 because Stolarczyk Sedor testified that she supervised
was turning yellow. (Def. SF ¶ 12). Between late Stolarczyk at Senator (Def. SF ¶ 11), and
September and October 14, 2002, Stolarczyk took Plaintiff offers no argument that Sedor

at least portions of occasional days off work to see could not competently testify concerning

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 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

Stolarczyk's attendance. That Stolarczyk Stolarczyk that, in the doctor's opinion,

would have been paid beyond October 14 some individuals are able to work in an
is not inconsistent with the statement that administrative capacity while undergoing
the last day she actually performed work chemotherapy and radiation treatments,
for Senator was October 14. Thus, the depending on the disease, treatment, and
Court deems the statement admitted for physical state of the patient. ( Id.) This
lack of a denial supported by record evidence as to "some individuals" does not
evidence. See Malec, 191 F.R.D. at 584. create a dispute as to whether Stolarczyk
told Sedor that she might not be able to
Plaintiff does not dispute that as of October 24, come back to work. Plaintiff also attempts
2002, Stolarczyk knew that surgery was scheduled to deny (4) and (5) by offering statements
for her on or about November 8, 2002, and that from Stolarczyk's EEOC charge that she
she could not thereafter return to work before the was terminated. Thus, the statements in (3),
end of January 2003. (Def. SF ¶ 19; Pl. Resp. to (4), and (5) are deemed admitted for lack
SF ¶ 19 (admitting fact).) On October 24, of a denial supported by appropriate record
Stolarczyk came to Sedor's office without prior evidence. See Malec, 191 F.R.D. at 584.

notice and told Sedor that (1) she had cancer and 10 Plaintiff attempts to dispute that Stolarczyk
could not work; (2) she would have surgery in did not request a leave of absence, but the
early November and then would be treated with denial is supported by Stolarczyk's EEOC
chemotherapy and radiation; (3) she would be charge and the EEOC investigator's notes
unable to work prior to the end of January 2003 only. As the Court discussed in detail,
when her doctor hoped that she would finish her supra, the EEOC documents are not
treatment, but she did not know if she would be admissible evidence. Thus, the statement is
able to return to work at that time because her deemed admitted for lack of a denial
doctor had told her the treatment tended to make supported by admissible record evidence.

people ill for awhile thereafter; (4) she realized See Malec, 191 F.R.D. at 584.

Sedor could not hold her job open for her under 11 Plaintiff attempts to dispute this statement
the circumstances and did not expect Sedor to do by offering Stolarczyk's statement from her
so; and (5) she hoped that she could get her job EEOC charge that she was terminated by
back if it happened to be open when she got Sedor. (Pl. Resp. ¶ 23.) As the Court
better.9 (Def. SF ¶ 20; P1. SAF ¶ 9.) Stolarczyk discussed above, the EEOC charge is not
did not request a medical disability leave of admissible evidence. Thus, the statement is

15 absence during that meeting with *15 Sedor or at deemed admitted for lack of a denial
supported by record evidence. See Malec,
any other time.10 (Def. SF ¶ 21.) At the end of the
191 F.R.D. at 584.
845 *845 meeting, Sedor told Stolarczyk that she
should inform Sedor when she was well enough to 12 Plaintiff attempts to dispute this statement

return because Senator would do whatever it could by offering Stolarczyk's statement from her
for her. ( Id.) Sedor did not terminate Stolarczyk.11 EEOC charge that she was terminated by

( Id. ¶ 23.) Sedor considered Stolarczyk to have Sedor. (Pl. Resp. ¶ 23.) As the Court
discussed above, the EEOC charge is not
voluntarily resigned her employment with
admissible evidence. Thus, the statement is
Senator.12 ( Id. ¶ 22.)
deemed admitted for lack of a denial
9 Plaintiff does not dispute (1) and (2). (Pl. supported by record evidence. See Malec,
Resp. to SF ¶ 20.) Plaintiff attempts to 191 F.R.D. at 584. Moreover, nothing
dispute (3) by offering a statement in a about this particular statement — i.e., as to
medical report by a doctor who examined what Sedor considered to have happened

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 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

— is material to the bottom-line result, 14 Plaintiff attempts to dispute this statement

given that Plaintiff has pointed to no by offering Stolarczyk's statement from her
admissible record evidence of an adverse EEOC charge that she anticipated returning
job action sufficient to discharge Plaintiff's to work at the end of January 2003. (Pl.
threshold burden on that score. Resp. ¶ 34.) As the Court discussed above,
the EEOC charge is not admissible
Sedor called Stolarczyk at home later on October evidence. Thus, the statement is deemed
24, 2002, to tell her that Senator was going to admitted for lack of a denial supported by
continue to pay for her medical insurance until record evidence. See Malec, 191 F.R.D. at
February 2003, and, at Stolarczyk's request, gave 584. In any event, what she anticipated
written confirmation of this to her on October 28, does not create a dispute as to what
2002. (Def. SF ¶ 24.) Senator continued to pay actually occurred.
Stolarczyk's medical insurance until August 2003.
Stolarczyk filed a charge with the EEOC on April
( Id. ¶ 25.)
4, 2003, alleging that she had been discriminated
Stolarczyk was at her doctor's office or at the against on the basis of her disability when Senator
hospital on October 15, 17, 18, 19, and 23, 2002. allegedly terminated her and failed to
(Def. SF ¶ 17.) After her meeting with Sedor, she accommodate her disability. (Am. Compl., Ex. A.)
was at her doctor's office or at the hospital on The EEOC issued her a right to sue letter on
October 25 and 30 and November 4 and 6, 2002, September 23, 2003 ( id., Ex. C), and Stolarczyk
before her surgery on November 8, 2002. ( Id. ¶ filed her original complaint some ten weeks later
26.) Stolarczyk was treated with chemotherapy on December 2, 2003 (D.E. 1). In the amended
16 and radiation after her surgery, *16 which 846 complaint filed *846 after Stolarczyk's death,
treatment ended in February 2003. ( Id. ¶¶ 28, 29.) Plaintiff alleges that Senator violated Stolarczyk's
Stolarczyk's physician did not release Stolarczyk rights under the ADA by terminating her because
to work until March 2003. ( Id. ¶ 30.) Sedor called she had cancer and by failing to accommodate her
Stolarczyk in mid-March 2003, and was told by need for time off work to undergo surgery and
Stolarczyk that she was not feeling well enough to 17 treatment. (Am. Compl. ¶¶ 22-29.) *17
return to work. ( Id. ¶ 31.) Stolarczyk never
informed Sedor that she was well enough to return II. Summary Judgment Standard
to work.13 ( Id. ¶ 32.) The time off work required Summary judgment is proper where "the
by Stolarczyk to undergo her surgery and follow- pleadings, depositions, answers to interrogatories,
up treatment exceeded two months. ( Id. ¶ 33.) In and admissions on file, together with the
fact, Stolarczyk was unavailable to work from affidavits, if any, show that there is no genuine
mid-October 2002 until at least mid-March issue as to any material fact and that the moving
2003.14 ( Id. ¶ 34.) party is entitled to a judgment as a matter of law."
13 Plaintiff attempts to dispute this statement
Fed.R.Civ.P. 56(c). In determining whether there
is a genuine issue of fact, the court "must construe
by offering Stolarczyk's statements from
her EEOC charge and the EEOC
the facts and draw all reasonable inferences in the
investigator's notes that she was not light most favorable to the nonmoving party."
allowed to return to work. (Pl. Resp. ¶ 32.) Foley v. City of Lafayette, 359 F.3d 925, 928 (7th
As the Court discussed above, the EEOC Cir. 2004). To avoid summary judgment, the
documents are not admissible evidence. opposing party must go beyond the pleadings and
Thus, the statement is deemed admitted for "set forth specific facts showing that there is a
lack of a denial supported by record genuine issue for trial." Anderson v. Liberty
evidence. See Malec, 191 F.R.D. at 584. Lobby, Inc., 477 U.S. 242, 250 (1986). Summary

9
 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

judgment is proper against "a party who fails to reasonable accommodation, and (3) she suffered
make a showing sufficient to establish the from an adverse employment action because of
existence of an element essential to that party's her disability. Dvorak v. Mostardi Platt Assocs.,
case, and on which that party will bear the burden Inc., 289 F.3d 479, 483 (7th Cir. 2002) (citing
of proof at trial." Celotex Corp. v. Catrett, 477 Bekker v. Humana Health Plan, Inc., 229 F.3d
U.S. 317, 322 (1986). 662, 669-70 (7th Cir. 2000)). The burden is on a
plaintiff to show that the plaintiff can meet these
III. Discussion requirements. See Feldman v. Am. Mem'l Life Ins.
Plaintiff alleges that Stolarczyk was unlawfully Co., 196 F.3d 783, 789-90 (7th Cir. 1999).
discharged because of her disability and that
A. Plaintiff Has Failed to Adduce Evidence that
Senator failed to make reasonable
Stolarczyk Was Terminated
accommodations to her known disability. Section
12112(a) of the ADA prohibits, among other Based on the admissible record evidence in the
things, discrimination "against a qualified 847 case, summary judgment *847 is warranted on the
individual with a disability because of the ground that Plaintiff has failed to adduce evidence
disability of such individual in regard to . . . the that Stolarczyk suffered from an adverse
discharge of employees." 42 U.S.C. § 12112(a); employment action. The only evidence Plaintiff
accord Buie v. Quad/Graphics, Inc., 366 F.3d 496, offered to support the contention that Stolarczyk
502 (7th Cir. 2004). It is also unlawful under the was terminated by Senator, as opposed to not
ADA for an employer to fail to make reasonable being discharged by Senator or Sedor, ( see Def.
accommodations to the known physical or mental SF ¶¶ 22, 23), are the excluded hearsay statements
disabilities of an otherwise qualified individual in Stolarczyk's EEOC charge and the statements
with a disability. 42 U.S.C. § 12112(b)(5)(A); that Stolarczyk apparently made to the EEOC
accord Green v. Nat'l Steel Corp., Midwest Div., 19 investigator, as reflected in the notes of those *19
197 F.3d 894, 897 (7th Cir. 1999). Section conversations ( see Pl. SAF ¶¶ 1, 2). In contrast,
18 12111(8) defines a "qualified *18 individual with a the admissible record evidence establishes that
disability" as "an individual with a disability who, Ms. Stolarczyk went to the office of Ms. Sedor
with or without reasonable accommodation, can without prior notice in late October 2002 and
perform the essential functions of the employment informed Sedor that Stolarczyk had cancer and
position that such individual holds or desires." 42 would be unable to work prior to at least the end
U.S.C. § 12111(8); accord Ammons v. Aramark of January 2003; at the meeting, Stolarczyk also
Unif. Servs., Inc., 368 F.3d 809, 818 (7th Cir. stated that she realized Sedor could not hold her
2004). Section 12102(2) defines a disability, in job open for her under the circumstances and did
relevant part, as "(A) a physical or mental not expect Sedor to do so. (Def. SF ¶ 20; Pl. SAF
impairment that substantially limits one or more of ¶ 9.) Ms. Sedor did not discharge Ms. Stolarczyk (
the major life activities of such individual; (B) a Id. ¶ 23), and Sedor considered Ms. Stolarczyk to
record of such an impairment; or (C) being have voluntarily resigned. ( Id. ¶ 22). Ms.
regarded as having such an impairment." 42 Stolarczyk thereafter was unable to work until
U.S.C. § 12102(2). mid-March 2003, at the earliest. (Def. SF ¶¶ 31,
34.)
To make out a prima facie case of discrimination
under the ADA, Plaintiff must show that (1) Put simply, nothing in the admissible record
Stolarczyk is disabled within the meaning of the evidence supports the idea of an involuntary
ADA, (2) she was qualified to perform her termination as opposed to a voluntary resignation.
essential job functions either with or without a Precedent establishes that a voluntary decision to

10
 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

cease employment is not an adverse employment omitted); Sutton v. Potter, No. 02 C 2702, 2004
action. See Bean v. Wisc. Bell, Inc., 366 F.3d 451, WL 603477, at *7 (N.D. Ill. March 22, 2004)
453 (7th Cir. 2004) ("[I]f she resigned, what is the (Leinenweber, J.) (citing Nowak v. St. Rita High
adverse employment action of which she is 848 Sch., 142 F.3d 999, 1003 (7th Cir. 1998)). *848
complaining?"); Simpson v. Borg-Warner
Senator relies on Byrne v. Avon Products, Inc., 328
Automotive, Inc., 196 F.3d 873, 876 (7th Cir.
F.3d 379 (7th Cir. 2003), for the proposition that
1999) (voluntary demotion not adverse
an inability to work for an extended period of time
employment action).
(in that case, two months) means that a litigant
Plaintiff also has not argued for, nor put forward cannot perform the job's essential functions and
evidence that would support a finding of, an thus is not "qualified" within the meaning of the
adverse employment action under a theory of ADA. Id. at 381. In this regard, the Seventh
constructive discharge. See, e.g., Bean, 366 F.3d at Circuit has repeatedly found that plaintiffs with
454 ("[C]onstructive discharge, refers to the lengthy absences do not qualify for protection
situation in which an employer precipitates an under the ADA because they cannot perform the
employee's resignation by making the employee's essential functions of their jobs. See Jovanovic v.
working conditions unbearable.") (collecting In-Sink-Erator Div. of Emerson Elec. Co., 201
cases); Simpson, 196 F.3d at 877 (establishing F.3d 894, 899-00 (7th Cir. 2000) (plaintiff could
constructive discharge requires a showing that (1) not perform essential function of regular and
working conditions "were so intolerable that a timely attendance where he missed 24 days in
reasonable person would have been compelled to twelve months); id. ("Common sense dictates that
resign," and (2) the conditions were intolerable regular attendance is usually an essential function
because of unlawful discrimination). Because in most every employment setting; if one is not
Plaintiff has failed to satisfy Plaintiff's burden of present, he is usually unable to perform his job.");
20 adducing evidence *20 that Stolarczyk suffered 21 accord, e.g., *21 Byrne, 328 F.3d at 381; Amadio v.
from an adverse employment action, summary Ford Motor Co. 238 F.3d 919, 927-28 (7th Cir.
judgment is proper. 2001). According to precedent, this type of request
to an employer is not a "reasonable
B. Stolarczyk Was Not a "Qualified Individual
accommodation" because the "sort of
With a Disability"
accommodation contemplated by the ADA is one
Even if Plaintiff had discharged the burden of that will allow the person to `perform the essential
providing admissible evidence of an adverse job functions of the employment position.'" Id., 328
action, summary judgment is proper for the F.3d at 381 (quoting 42 U.S.C. § 12111(8)). While
independent reason that Stolarczyk was not a a certain amount of "time off may be an apt
"qualified individual with a disability." To make accommodation for intermittent conditions," the
this determination, the Court must see whether she Seventh Circuit held in Byrne that an "[i]nability
was "qualified to perform the essential functions to work for a multi-month period removes a
of the job either with or without reasonable person from the class protected by the ADA." Id.
accommodation." Dvorak, 289 F.3d at 483. This is
Here, Stolarczyk worked her last day on October
the second prong of a prima facie case. See id. The
14, 2002. (Def. SF ¶¶ 15, 16.) She informed Sedor
determination as to whether the individual is a
on October 24, 2002, that she would be out until at
"qualified individual with a disability" must be
least the end of January 2003. (Def. SF ¶ 20.)
made at the time of the putative adverse
Thus, the evidence before the Court demonstrates
employment decision. Weiler v. Household Fin.
that on the date Stolarczyk met with Sedor
Corp., 101 F.3d 519, 524 (7th Cir. 1996) (citation
(assuming for the purposes of this discussion that

11
 Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

she was terminated), October 24, 2002, Senator Plaintiff's claim that Senator failed to reasonably
was faced with an employee who would be out of accommodate Stolarczyk's disability does not
work for some two-and-a-half to three-and-a-half 849 survive summary *849 judgment. As discussed,
months (mid-October to sometime in January). supra, precedent teaches that a multi-month leave
Given that Plaintiff does not dispute that is not a reasonable accommodation under the
attendance was a "central and critical aspect" of ADA. Compare Byrne, 328 F.3d at 381 (leave of
Stolarczyk's position (Pl. Resp. to SF ¶ 10), the more than two months not reasonable) with
Court finds that, under the applicable precedent, Haschmann v. Time Warner Entm't Co., L.P., 151
an imminent absence of this length takes F.3d 591, 601 (7th Cir. 1998) (two to four week
Stolarczyk out of the realm of protection of the leave reasonable). Plaintiff has adduced no
22 ADA.15 Because Plaintiff has failed to *22 admissible evidence that Stolarczyk requested any
establish that Stolarczyk was qualified to perform accommodation, much less anything other than a
her essential job functions either with or without a multi-month leave. Indeed, unfortunately, it is
reasonable accommodation, Plaintiff has failed to hard to imagine what possible accommodation
make out a prima facie case of discrimination, and could have been given to Ms. Stolarczyk, given
summary judgment would be independently that it is undisputed that regular attendance was "a
warranted on such basis. central and critical aspect of her position" (D.E. 32
(Pl. Resp. to SF) ¶ 10) and further undisputed that
15 Plaintiff suggests that Pals v. Schepel Buick
she was unable to work until mid-March 2003, at
GMC Truck, Inc., 220 F.3d 495 (7th Cir.
the earliest. (Def. SF ¶¶ 31, 34.) Accord Kemerly
2000), militates in favor of a different
result. But Pals dealt with a materially
v. Bi-County Servs., Inc., No. 1:00-CV-254, 2003
different scenario: there was evidence in WL 22595802, at *14 n. 22 (N.D. Ind. Oct. 7,
that case that a person had been able to 2003). Senator, of course, was free to keep her
temporarily replace the plaintiff and long- position open if it chose, but, as explained above,
time employee during an absence, and as a the ADA does not mandate such a step. Thus,
result, it was possible that the summary judgment is proper on Plaintiff's claim
plaintiff/absent worker's request to return that Senator failed to offer Stolarczyk a reasonable
to work gradually could be a reasonable 23 accommodation. *23
accommodation. See id. at 498. In this
case, there was no evidence of any readily IV. Conclusion
available temporary replacement; instead,
For the reasons stated above, Senator's motion for
the undisputed evidence is that Stolarczyk's
summary judgment (D.E. 27) is granted.
regular attendance was a "central and
critical" (Def. SF ¶ 10) component of her So ordered.
job at the transportation facility and that,
unfortunately, as a result of her cancer, she 1 *1
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.)

C. Senator Did Not Fail to Reasonably

Accommodate Stolarczyk's Disability

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Stolarczyk v. Senator Intern. Freight Forwarding 376 F. Supp. 2d 834 (N.D. Ill. 2005)

13