Ronald Sweatt v. Union Pacific Railroad Co

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-2451

RONALD SWEATT,

Plaintiff-Appellant,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 9579 — Sara L. Ellis, Judge.

____________________

ARGUED FEBRUARY 20, 2015 — DECIDED AUGUST 6, 2015

____________________

Before RIPPLE, KANNE, and TINDER, Circuit Judges.

KANNE, Circuit Judge. Appellant Ronald Sweatt is an Afri-

can-American male who worked for Union Pacific Railroad

Company (“Union Pacific”). Union Pacific hired him in 2006

to perform manual labor jobs, and during his time there, he

did just that. He served as a Laborer, Assistant Foreman,

Trackwalker, Trackman, and Tie Inserter. After a few years

on the job, Sweatt manifested pain in his shoulder and

hands. The pain progressed to the point that Sweatt could no

2 No. 14-2451

longer do his job. So he sought a less strenuous position—

Security Officer—through Union Pacific’s Vocational Reha-

bilitation Program. Sweatt did not get the job.

Sweatt subsequently filed suit against Union Pacific. For

his physical injuries, he alleged violations of the Federal

Employers’ Liability Act (“FELA”). For the denial of the Se-

curity Officer position, he alleged violations of the Civil

Rights Act of 1991 and the Age Discrimination in Employ-

ment Act (“ADEA”), among other statutes.1 He bundled

these claims into one action (with five counts) in the North-

ern District of Illinois. Discovery ensued, and Union Pacific

eventually filed a motion for summary judgment on each of

Sweatt’s claims. The district court granted Union Pacific’s

motion in its entirety. For the reasons below, we affirm.

I. BACKGROUND

Sweatt’s job as a railroad worker was hard work. No one

disputes that. During his time at Union Pacific, he operated

spike mauls, hydraulic tampers, and spiker guns. He swung

sledgehammers, pulled spikes with claw bars, and assisted

with welding. He also inserted—and removed—railroad

ties. Unsurprisingly, this strenuous work caused Sweatt to

develop pain in his shoulder and hands. Sweatt addressed

his shoulder pain in his deposition.

A. I started having a lot of pain during 2009, the

year 2009, that year when I was up at Lake Street

when we started doing a lot of tampering [sic].

1Sweatt also brought claims under the Americans with Disabilities Act,

42 U.S.C. § 12101 et seq., and the Illinois Human Rights Act, 775 ILCS 5/2-

103, but those claims are not before us on appeal.

No. 14-2451 3

Q. What time of year was it?

A. What time of year?

Q. Uh-huh—yes.

A. Oh, like in the summer.

Q. Somewhere in June or July or August?

A. It might have been—I know it was—it was

warm. It might have been before then.

Q. So it could have been before June?

A. Yeah.

Q. And when you would use the claw bars back

probably before June of 2009, you would notice the

pain in your shoulder?

A. Yes. Because when I would—when I would use

the—use the claw bar, it was just—it was unbeara-

ble, you know, I would, you know, try to—I called

one of the guys, come over, you know, and give me

a hand.

Q. Did you seek medical attention at that time?

A. See I—over the counter I was taking pain medi-

cation because I didn’t want—I didn’t really want

no time off work.

During that same timeframe, Sweatt began experiencing

pain in his hands. He attributed the cause of the hand pain

to repetitive use of hydraulic tools and other hand tools. On

November 19, 2009, Sweatt saw a medical professional to

address the hand pain. His provider for that healthcare visit,

Nurse Practitioner Valentin, entered the following note into

Sweatt’s medical record: “complaining of bilateral hand

pain. The patient has had pain in his hands for quite a while

4 No. 14-2451

now. He might have carpal tunnel syndrome. He does repet-

itive motion at his job.”

Eleven days later, on November 30, 2009, Sweatt met

with Dr. Coates. According to Dr. Coates, Sweatt first com-

plained of hand pain, which he attributed to his work at Un-

ion Pacific, in May of 2009. Sweatt was a Trackman at the

time. Upon examination, Dr. Coates believed that Sweatt was

unable to perform the job of Trackman.

We pay particular attention to these dates. They are sig-

nificant because Union Pacific contends that Sweatt’s FELA

claims2 are barred by the statute of limitations. To recap:

 May / June 2009–Sweatt notices hand pain. He also

describes experiencing “unbearable” shoulder pain.

Sweatt requests coworkers to help him use claw bars.

 Nov. 19, 2009–Sweatt sees Nurse Practitioner Valentin

for bilateral hand pain.

 Nov. 30, 2009–Sweatt sees Dr. Coates. Dr. Coates says

Sweatt is unfit to perform the duties of Trackman.

2 Sweatt alleged nine theories of negligence against Union Pacific under

the FELA. According to Sweatt, Union Pacific: (1) neglected to provide

him with a reasonably safe place to work; (2) neglected to provide him

with safe and proper tools; (3) neglected to provide him with the proper

safety equipment; (4) neglected to inspect and maintain its equipment;

(5) neglected to warn him about defective tools and equipment; (6) negli-

gently created and permitted a dangerous and hazardous workplace

condition; (7) neglected to adopt safe customs and practices; (8) neglect-

ed to adopt safe methods and procedures; and (9) committed other acts

of negligence. These separate harms resulted, he alleged, in “permanent

injuries to his shoulders, arms, hands and wrists and the bones, muscles,

tissues, ligaments and internal parts thereof.”

No. 14-2451 5

 Nov. 30, 2012–Sweatt files suit.

Given this series of events, the district court agreed with Un-

ion Pacific. It ruled the claims time-barred by the applicable

three-year statute of limitations, 45 U.S.C. § 56, and granted

summary judgment in favor of Union Pacific.

That brings us to Sweatt’s age- and race-based discrimi-

nation claims. These claims flow from Sweatt’s rejection for

the Security Officer position, a position he sought once he

could no longer perform his manual-labor jobs. In January

2011, Union Pacific gave Sweatt an opportunity to partici-

pate in the Vocational Rehabilitation Program (“VRP”). This

program facilitates job placement for railroad workers who

are no longer able to perform their existing jobs to due injury

or illness. VRP Counselors try to place workers in their pre-

vious jobs, in different jobs within Union Pacific, or in posi-

tions outside Union Pacific. During their placement efforts,

VRP Counselors help workers develop skills in interviewing

and résumé drafting.

Sweatt seized the opportunity. When he learned of an

open Security Officer position in the greater Chicago area, he

expressed interest and applied. Union Pacific scheduled him

for an interview in Omaha, Nebraska, where its corporate

headquarters are located. Before Sweatt left, VRP Counselor

Elizabeth Watson gave him a document that alerted him to

areas of interest that could be discussed during the inter-

view. The document, “Information requested on Personal

History form for background check,” requested information

pertaining to arrests, traffic citations, military service, family,

education, and references. Watson discussed the form with

Sweatt and generally helped him to prepare for the inter-

view.

6 No. 14-2451

Sweatt arrived in Omaha on March 16, 2011. Before he

began his interviews, he completed a “Personal History

Statement.” This document was different from the form Wat-

son had given him. Under a heading entitled “ARRESTS,”

the form asked if he had ever been convicted of a misde-

meanor or a felony offense. It also asked if he had ever been

on probation or parole, and if he had ever been under in-

dictment or charges for a criminal offense. The form then

provided an admonishment: “A conviction may not disquali-

fy you, but a false statement will.” Sweatt answered “no” to

each of the questions.

Then he met with Candace Girard, Director of Disability

Management. She informed him that Union Pacific favors a

candidate with integrity and honesty because a Security Of-

ficer is charged with guarding multi-million dollar vehicles.

After his meeting with Girard, Sweatt met with Bruce Finger,

Director of Internal Placement, and Ken Eultgen, Director of

Homeland Security. Finger used an “Interview Questioner’s

Form,” the same form he always used when interviewing

candidates for the Security Officer position. In accordance

with that form, Finger asked Sweatt if he had ever been ar-

rested or convicted of a misdemeanor or felony. Sweatt an-

swered in the negative, and Finger recommended Sweatt for

the position.

Then Union Pacific ran a background check. Union Pacif-

ic first conducted an “eVerifile” criminal report, which it

runs on all prospective employees. That report returned a

clean record. The background check did not stop there, how-

ever. When someone applies for a position in the police de-

No. 14-2451 7

partment,3 Union Pacific conducts a more thorough investi-

gation. So Special Agent James Weller, Union Pacific (North-

ern Region), ran a “LEADS/NCIC” criminal check on Sweatt.

LEADS/NCIC (Law Enforcement Agencies Data System /

National Crime Information Center) is a computerized data-

base that is maintained by the government. It facilitates

background checks on all prospective employees in the

Northern Region. Here, it indicated that Sweatt had been ar-

rested in the Homewood-Flossmoor area of Illinois. The re-

port disclosed a case number from the Flossmoor Police De-

partment and a State ID number for the arrest. Agent Weller

confirmed the arrest.

He then contacted Sweatt’s former supervisor, Richard

Johnson, who gave Sweatt a positive referral. Johnson stated

that Sweatt earned an award for his hard work, never

abused sick time, and never gave anyone a hard time. He

recommended Sweatt for the job. After receiving a similar,

positive referral from Sweatt’s former employer of fifteen

years, Agent Weller conducted an in-person interview of

Sweatt.

During that interview, Agent Weller asked Sweatt if he

had ever been arrested. Sweatt again said “no.” Agent Weller

asked him that question at least three times, and each time

Sweatt gave him the same answer—“no.” Armed with the

background report, Agent Weller decided to confront Sweatt

3 According to Union Pacific’s website, the railroad police force dates to

the mid-nineteenth century, “when the number of U.S. Marshals was

insufficient to police America’s growing rail network.” See

https://www.up.com/aboutup/community/safety/special_agents/index.ht

m (last visited on July 24, 2015).

8 No. 14-2451

with the details of the arrest. He asked Sweatt if he had been

arrested in Flossmoor, Illinois. Sweatt finally acknowledged

that he had. He quickly called the incident a misunderstand-

ing, noting that the judge tossed the case out of court. He al-

so added that it was a domestic dispute, and that he re-

mained friends with everyone involved.

Agent Weller summarized the results of his background

investigation and sent his final report to Jack Harris, North-

ern Division Captain. Upon review, Harris emailed Finger to

memorialize his concerns about the inconsistencies in

Sweatt’s responses to the arrest questions. Finger, who had

previously recommended Sweatt, e-mailed Mark Kalinow-

ski, Regional Director, asking for his opinion on the matter.

Kalinowski responded with a negative endorsement on

Sweatt’s candidacy. In his view, Sweatt did not deserve the

Security Officer position due to his untruthfulness related to

the prior arrest. Recall Girard’s notice: Union Pacific was

looking for a person with integrity and honesty.

Finger subsequently notified Sweatt in writing that he

was disqualified for the Security Officer position. The form

letter, dated March 31, 2011, stated that Sweatt’s “back-

ground investigation has disclosed information and circum-

stances that disqualify you as a candidate for Security Of-

ficer.”

Sweat subsequently filed suit against Union Pacific, alleg-

ing, in part, age- and race-based discrimination. In support

of his case, Sweatt offers nineteen comparators who have

been offered the position of Security Officer since 2009. He

argues that these comparators reveal a less-than-level play-

ing field when it comes to competition for the Security Of-

ficer position. In his view, the case boils down to questions of

No. 14-2451 9

credibility, so his claims should have survived summary

judgment.

There is more. Sweatt links the district court’s judgment

against him to its case management procedure (“CMP”) re-

garding summary judgment. He argues that Judge Sara L.

Ellis exceeded her authority by promulgating a CMP that

prevents parties from filing separate statements of fact.4 In

Sweatt’s view, this rule is inconsistent with Local Rule 56.1

and Federal Rule of Civil Procedure 83. We unfurl this novel

argument below.

II. ANALYSIS

We review a district court’s grant of summary judgment

de novo. Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th

Cir. 2014). Summary judgment is appropriate where the ad-

missible evidence reveals no genuine issue of any material

fact. FED. R. CIV. P. 56(c); Lawson v. CSX Transp., Inc., 245 F.3d

916, 922 (7th Cir. 2001). A fact is “material” if it is one identi-

fied by the law as affecting the outcome of the case. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of ma-

terial fact is “genuine” if “the evidence is such that a reason-

able jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248. We “construe all facts and reason-

able inferences in the light most favorable to the non-moving

party.” Apex Digital, Inc. v. Sears, Roebuck, & Co., 735 F.3d 962,

965 (7th Cir. 2013). Here, Sweatt is the non-moving party. So

we construe all facts and reasonable inferences in his favor.

4 Under the CMP, the parties must file a “joint” statement of undisputed

facts.

10 No. 14-2451

A. FELA Claims

Our discussion begins with Sweatt’s FELA claims. The

FELA affords redress to injured employees of railroad com-

panies that are engaged in interstate commerce. 45 U.S.C.

§ 51 et seq.; see also Conrail v. Gottshall, 512 U.S. 532, 542 (1994)

(“Cognizant of the physical dangers of railroading that re-

sulted in the death or maiming of thousands of workers eve-

ry year, Congress crafted a federal remedy that shifted part

of the human overhead of doing business from employees to

their employers.”) (internal quotation marks and citations

omitted). In crafting this remedy, Congress imposed a three-

year statute of limitations. 45 U.S.C. § 56 (“No action shall be

maintained under this chapter unless commenced within

three years from the day the cause of action accrued.”).

In cases like this one, where the statute of limitations is at

issue, the date of accrual is key. Accrual is defined in two

parts: notice of injury and notice of cause. See Fries v. Chicago

& Nw. Transp. Co., 909 F.2d 1092, 1095 (7th Cir. 1990) (“[O]nce

a plaintiff is in possession of the critical facts of both injury

and governing cause of that injury the action accrues even

though he may be unaware that a legal wrong has oc-

curred.”) (citation omitted). Actual notice is not required for

accrual. Tolston v. Nat’l R.R. Passenger Corp., 102 F.3d 863, 866

(7th Cir. 1996). After a condition manifests itself, the question

becomes whether the plaintiff knew or, through the exercise

of reasonable diligence, should have known of the cause of his

injury. Id.

Here, Sweatt was on notice of his injuries and the cause

of his injuries as early as May or June 2009. Sweatt testified

that he first observed his hand and shoulder pain in the

summer months of 2009: “I started having [shoulder] pain

No. 14-2451 11

during 2009 … like in the summer.” When asked if it was “in

June or July or August,” he answered, “I know it was …

warm. It might have been before then.” Dr. Coates corrobo-

rated that testimony. He testified that Sweatt first noticed his

hand pain in May of 2009. And Nurse Practitioner Valentin’s

notes from Sweatt’s November 19, 2009, appointment states

that he experienced “pain in his hands for quite a while

now.” Clearly then, Sweatt’s injury manifested itself well be-

fore November 30, 2009—the critical three-year mark from

his filing in district court. See Green v. CSX Transp., Inc., 414

F.3d 758, 763 (7th Cir. 2005) (“When the specific date of inju-

ry cannot be determined because an injury results from con-

tinual exposure to a harmful condition over a period of time,

a plaintiff’s cause of action accrues when the injury mani-

fests itself.”).

Sweatt’s arguments to the contrary are unavailing. He

first argues that “intermittent pain associated with a minor

injury” is insufficient to trigger accrual of a claim under the

FELA. We do not disagree with that proposition of law, see

Green, 414 F.3d at 764; we disagree with its applicability to

this case. Sweatt’s own testimony belies the notion that he

experienced “intermittent pain associated with a minor inju-

ry.” Indeed, he described his shoulder pain as “unbearable,”

particularly when using the claw bar.5 He testified that he

needed help from his coworkers to use that tool. And by

November 30, 2009 (exactly three years before he filed this

action), Dr. Coates opined that Sweatt could no longer per-

5 We are unsure why Sweatt questions the district court’s reliance on this

fact. It is beyond dispute that he testified to enduring “unbearable” pain.

12 No. 14-2451

form the work as a Trackman.6 To be sure, Sweatt testified

that he did not miss work as a result of these injuries. But his

effort in working in the face of injury does not forestall the

date of accrual.

Sweatt next argues that he was unaware that his malady

was anything more than muscle soreness. This plea of igno-

rance is similar to the argument the appellant advanced in

Fries. In that case, the appellant argued that the statute of

limitations for his FELA claim was tolled until a doctor di-

agnosed him with the relevant injury. 909 F.2d at 1095. We

rejected that argument, and held that a plaintiff cannot wait

until he receives a medical diagnosis to begin pursuit of his

claim. Id. We are not alone in this approach. In the cause-of-

injury context, the Fifth Circuit also rejects the use of a medi-

cal diagnosis as a starting point for the statute of limitations.

See Emmons v. S. Pac. Transp. Co., 701 F.2d 1112, 1122 (5th Cir.

1983) (“[W]e think it sufficient for purposes of commence-

ment of the limitations period that the plaintiff knew his

complained of condition was work related, and that it is not

additionally necessary that he have been formally so advised

by a physician.”).

Regarding cause of injury, Sweatt immediately linked his

pain to his employment with Union Pacific. He testified that

he first noticed the pain when he started doing a lot of tamp-

ing on the railroad tracks. He called his shoulder pain “un-

bearable,” particularly when he would use the claw bar—a

tool specific to his job at Union Pacific. Nurse Practitioner

6Dr. Coates performed corrective surgery on Sweatt’s shoulder in March

2010.

No. 14-2451 13

Valentin’s November 19, 2009, note corroborates the work-

related nature of the injury. She wrote that Sweatt “does repet-

itive motion at his job” (emphasis added). And Dr. Coates also

testified that Sweatt associated the pain with his work.

This connection is no leap of logic. After all, Sweatt had

performed heavy-duty jobs at Union Pacific for a period of

nearly three years. Like a machinist who, after years working

in a loud, industrial room, develops hearing loss, Fries, 909

F.2d at 1093–94, Sweatt knew or through the exercise of rea-

sonable diligence should have known that his injuries were

caused by his work for Union Pacific.

Based on our de novo review of the record, Sweatt’s FELA

claims for the injuries to his shoulder and hands began to

accrue well before November 30, 2009. That puts them out-

side the relevant three-year period, rendering them time-

barred by the statute of limitations.

B. Race and Age Discrimination Claims

Sweatt’s next issue concerns his prima facie cases of age

and race discrimination. He brings these claims in light of

Union Pacific’s failure to hire him as a Security Officer.7 Be-

cause Sweatt did not present direct evidence that he was dis-

criminated against, the district court resorted to the burden-

shifting method of McDonnell Douglas Corp. v. Green, 411 U.S.

7 Given the briefing in this case, it is unclear whether Sweatt’s race dis-

crimination claim is brought under the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2, or the Civil Rights Acts of 1991, 42 U.S.C. § 1981. (Appellant’s

Br. 36.) Sweatt’s complaint alleges a violation under § 1981, so our analy-

sis proceeds under that statute.

14 No. 14-2451

792, 802–05 (1973).8 Under this method, a plaintiff must

show that: (1) he is a member of a protected class; (2) he ap-

plied for and was qualified for an open position; (3) despite

his qualifications, he was rejected for the position; and (4) a

similarly situated person outside his protected class was

hired for the position instead, or the position remained open.

Gore v. Ind. Univ., 416 F.3d 590, 592 (7th Cir. 2005). We note

that this familiar burden-shifting framework also applies to

age discrimination claims under the ADEA. Krchnavy v.

Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002).

In any event, if a plaintiff can establish this prima facie

case, then the defendant must present evidence demonstrat-

ing a legitimate, nondiscriminatory reason for not hiring the

plaintiff for the position. Norman-Nunnery v. Madison Area

Tech. Coll., 625 F.3d 422, 432 (7th Cir. 2010). The plaintiff must

then present evidence that the stated reason for not hiring

was merely pretextual. Zaccagnini v. Chas. Levy Circulating

Co., 338 F.3d 672, 675 (7th Cir. 2003). Pretext is defined as “a

dishonest explanation, a lie rather than an oddity or an er-

ror.” Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir.

2002).

Here, Sweatt cannot make out a prima facie case for either

age- or race-based discrimination. Specifically, he fails to es-

tablish the final prong dealing with similarly situated indi-

8Although the district court laid out the McDonell Douglas framework, it

proceeded directly to analysis of pretext. Sweatt v. Union Pac. R.R. Co.,

No. 12 C 9579, 2015 U.S. Dist. LEXIS 76156, at *22-23 (N.D. Ill. June 3,

2014).

No. 14-2451 15

viduals.9 Although similarly situated individuals “need not

be identical in every conceivable way,” they “must be ‘direct-

ly comparable’ to the plaintiff ‘in all material respects[.]’”

Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012). This

record reveals no candidates for the Security Officer posi-

tion—past or present—who were comparable to Sweatt in all

material respects, and yet were treated more favorably than

he was (i.e. hired).

We begin our analysis with Sweatt’s race discrimination

claim under § 1981. Union Pacific offered nineteen people

jobs as Security Officers in the past five years. Sweatt uses

these individuals as his comparators. Discovery revealed

their racial makeup: fifteen were Caucasian, three were His-

panic, and one was African-American. Nine of these indi-

viduals hailed from the Northern Region where Sweatt

sought his Chicago position. Of those individuals, one was

outside Sweatt’s protected class and was untruthful on the

topic of traffic citations in his paper application. He was

hired. But importantly, that candidate immediately rectified

the discrepancy in his paper application during his inter-

view. Sweatt, by contrast, did not. During Sweatt’s interview,

he denied being arrested, and he corrected himself only

when confronted by Agent Weller with the specific details of

the arrest. That makes Sweatt and this particular comparator

qualitatively different.

9 Union Pacific appears to concede that Sweatt was qualified for the posi-

tion of Security Officer, which satisfies prong 2 of Sweatt’s prima facie

case. Although we doubt that an applicant who is not forthright in an

interview is qualified for a position that depends on honesty and integri-

ty, we accept Union Pacific’s concession for purposes of our analysis.

16 No. 14-2451

The same story plays out when we consider individuals

hired by Union Pacific for Security Officer outside the North-

ern Region. Three individuals from this pool also had prior

arrests and/or charges brought against them. Unlike Sweatt,

however, each of these individuals forthrightly admitted to

their prior misdeeds during the interviews. Collectively,

then, these comparators are not comparable to Sweatt in all

material aspects. It’s not the initial lie; it’s the cover-up, the

persistence in the lie. Sweatt, unlike each of his purported

comparators, engaged in the latter activity. The comparators,

therefore, are not directly comparable in all material re-

spects, Coleman, 667 F.3d at 846, and Sweatt cannot establish

his prima facie case for race discrimination.

Sweatt’s alternative argument, that members outside his

protected racial class were treated more favorably than he

was because some of their summary reports do not state that

they had background checks performed, is also unavailing.

The fact that a summary report does not contain language

indicating that a background check was performed does not

mean that it was not performed. It simply means that the

check, if one occurred, was not included in the report. And

even if this argument somehow satisfied Sweatt’s prima facie

case, which it does not, Sweatt presents no evidence suggest-

ing that Union Pacific’s reason for not hiring him—his dis-

honesty during the interview—is pretextual. EEOC v. Target

Corp., 460 F.3d 946, 960 (7th Cir. 2006) (“To satisfy [pretext], a

plaintiff must show that (a) the employer’s nondiscriminato-

ry reason was dishonest; and (b) the employer’s true reason

was based on discriminatory intent.”).

Our § 1981 analysis applies with equal force to Sweatt’s

ADEA claim. Sweatt was born on August 6, 1956, so on the

No. 14-2451 17

date of his interview, March 16, 2011, he was fifty-four. Un-

der the ADEA, that means he was a member of a protected

class, 29 U.S.C. § 631 (“The prohibitions in this chapter shall

be limited to individuals who are at least 40 years of age.”),

which covers prong 1 of his prima facie case. Union Pacific

does not contest prongs 2 or 3. It does not have to. Because

once again, the insurmountable hurdle for Sweatt is prong 4.

None of Sweatt’s purported comparators made the same fa-

tal mistake that Sweatt made during his interview—

persisting in a lie about criminal history. As a result, his

comparators are not similar in all material respects, and

Sweatt cannot make out his prima facie case for age discrimi-

nation.

Before we address Sweatt’s argument regarding the dis-

trict court’s CMP, we pause to make some final observations

on the discrimination claims. We do not doubt Sweatt’s ex-

planation that the Flossmoor arrest was a misunderstanding,

that the judge tossed the case, and that Sweatt remained

friends with all relevant parties. But these facts, which we

accept as true, do not change the fact that Sweatt was not

forthcoming about the incident during his interview. In the

context of an interview for a position where honesty and in-

tegrity are paramount (Girard told him so), Sweatt’s lack of

candor understandably served as the death knell for his can-

didacy. Sweatt offers no evidence sufficient to create a genu-

ine issue of material fact that the true reason behind the fail-

ure to hire was age or race discrimination.

C. The District Court’s Summary Judgment Procedure

Sweatt argues that the district court’s CMP denies a non-

movant the ability to respond to the movant’s statement of

facts. He further argues that the CMP prohibits a non-

18 No. 14-2451

movant from submitting additional facts that he believes

would defeat the motion. This, he contends, contravenes Lo-

cal Rule 56.1. And in this case, he claims, it prejudiced him

below. We disagree.

Our analysis begins with the relevant portion of Judge El-

lis’s CMP:

Motions for summary judgment and responses

must comply with Local Rules 56.1(a)(1)–(2) and

56.1(b)(1)–(2), as well as the procedures outlined

herein. Parties are directed to file a joint statement

of undisputed material facts that the parties agree

are not in dispute. The joint statement must in-

clude—for each undisputed fact—citations to ad-

missible evidence. The joint statement of undisput-

ed material facts shall be filed separately from the

memoranda of law and shall include the line, para-

graph, or page number where the supporting mate-

rial may be found in the record. The parties may

not file—and the court will not consider—

separate documents of undisputed facts. If the

nonmoving party refuses to join in the statement,

the moving party will nevertheless be permitted to

file the motion, accompanied by a separate declara-

tion of counsel explaining why a joint statement

was not filed. Failure to stipulate to an undisputed

fact without a reasonable basis for doing so may re-

sult in sanctions.

Judge Sara L. Ellis, Case Management Procedures, available at

http://c.ymcdn.com/sites/www.7thcircuitbar.org/resource/res

mgr/2014_materials/Ellis.pdf (last visited July 24, 2015) (em-

phasis in original).

No. 14-2451 19

This CMP is concerned solely with a statement of undis-

puted material facts to which both parties agree. Nothing in this

CMP prohibits one party from responding to another party’s

version of the disputed facts. And nothing in this CMP pro-

hibits a party from submitting additional facts, as the need

may arise. The laudable goal of this CMP is to remove the

chaff from the grain in a given case, thereby allowing the

parties—and the court—to focus on the facts that are actual-

ly in dispute.

Judge Ellis’s CMP does not disadvantage a party. If a par-

ty refuses to agree to a joint statement, that party can still

proceed with its motion for summary judgment. It simply

must include a statement explaining why the joint statement

was not filed. We note that in this case, the district court al-

lowed Sweatt to amend the joint statement by including five

additional facts. That procedure inured to Sweatt’s benefit

here.

Further, by its own terms, the CMP conforms to the Local

Rules of the Northern District of Illinois. The relevant Local

Rule, 56.1, directs each party to file “a statement of material

facts as to which the moving party contends there is no genu-

ine issue … .” N.D. Ill. L.R. 56.1 (emphasis added). That rule

aspires to the goal achieved by Judge Ellis’s CMP—agreeing

that certain material facts are beyond dispute. In practice,

however, there is a difference between contending that a fact

is beyond dispute and agreeing that a fact is beyond disput-

ed. Local Rule 56.1(3) focuses on the former. The Committee

Comment acknowledges this fact. N.D. Ill. L.R. 56.1 cmt.

(“The judges of this Court have observed that parties fre-

quently include in their LR56.1 statements facts that are un-

necessary to the motion and/or are disputed.”) (emphasis

20 No. 14-2451

added). Judge Ellis’s CMP, on the other hand, encourages the

parties to work together to focus on the latter. We find no

fault in that. And we certainly find no inconsistency between

the CMP and Local Rule 56.1.

Because we find Local Rule 56.1 wholly consistent with

Judge Ellis’s CMP, we need not discuss Sweatt’s remaining

argument concerning Federal Rule of Civil Procedure 83. See

Fed. R. Civ. P. 83 (allowing a judge to “regulate practice in

any manner consistent with federal law, rules adopted under

28 U.S.C. §§ 2072 and 2075, and the district court’s local

rules”). It is without merit.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.