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Tucher v. Key Bank N.A.

United States District Court, S.D. Indiana, Indianapolis Division

February 6, 2014

ANTHONY R. TUCHER, Plaintiff,
v.
KEY BANK N.A., Defendant.

Michael E. Boring, BORING & ASSOCIATES, P.C., New Palestine, IN, Counsel for Plaintiff.

ORDER

JANE MAGNUS-STINSON, District Judge.

Plaintiff Anthony R. Tucher brings this discrimination suit against his former employer Defendant Key Bank N.A. ("Key Bank"), alleging violations of the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act. [Dkt. 1.] Currently pending before the Court is Key Bank's Motion for Summary Judgment. [Dkt. 46.] For the reasons that follow, the Court GRANTS Key Bank's Motion for Summary Judgment.

I.

PROCEDURAL STANDARDS AND COMPLIANCE

A. Summary Judgment Standard of Review

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, " Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

B. Mr. Tucher's Failure to Comply with the Federal and Local Rules

Before setting forth the factual background, the Court must first address several issues regarding Mr. Tucher's briefing and compliance with the Federal and Local Rules.

First and foremost among them is Mr. Tucher's failure to include in his response brief the "Statement of Material Facts in Dispute" section required by Local Rule 56-1(b). See Local Rule 56-1(b) ("The response must include a section labeled Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment."). Instead of including this section, Mr. Tucher includes a section entitled "Statement of Material Facts Not in Dispute, " which is simply a factual background section of his brief. [Dkt. 57 at 2 (emphasis added).] In other words, Mr. Tucher does not even attempt to identify as such the determinative facts and factual disputes precluding summary judgment, as is explicitly required Local Rule 56-1(b).

The consequence of Mr. Tucher's failure is that he concedes Key Bank's version of events. See Smith v. Lanz, 321 F.3d 680, 683 (7th Cir. 2003) ("[F]ailure to respond by the nonmovant as mandated by the local rules results in an admission."); see also Wackett v. City of Beaver Dam, 642 F.3d 578, 582 n.1 (7th Cir. 2011). The Court continues to apply the above articulated summary judgment standard, but Mr. Tucher's failure to comply with the Local Rules "reduc[es] the pool" from which the facts and inferences may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997). The Seventh Circuit has "repeatedly upheld the strict enforcement of these rules, sustaining the entry of summary judgment when the non-movant has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded the movant's version of the facts." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). Indeed, although the Court will not rest its decision solely on Mr. Tucher's failure to comply with the Federal and Local Rules, this failure, in conjunction with his numerous other failures detailed below, provide the Court an independent basis to grant summary judgment to Key Bank. See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994) ("The factual statement required by Local Rule 56.1 is not a mere formality. It follows from the obligation imposed by Fed.R.Civ.P. 56(e) on the party opposing summary judgment to identify specific facts that establish a genuine issue for trial, and it substantially facilitates the district court's task in deciding whether a trial is indeed necessary. [The plaintiff's] failure to comply with the local rule was, accordingly, not a harmless technicality, but a mistake that our precedents (for good reason) have deemed fatal.").

Unfortunately, Mr. Tucher's failure to include a "Statement of Material Facts in Dispute" section is but the first of many deficiencies with his brief, the rest of which were exhaustively (and helpfully) cataloged by Key Bank. [Dkt. 64 at 2-13.] The Court highlights many of these deficiencies here so as to further demonstrate that the pool of evidence the Court may properly consider when deciding this motion is even further reduced. In the end, Mr. Tucher is left with very little admissible evidence supporting his claims.

As a general matter, Mr. Tucher rarely points to record evidence supporting his factual assertions as in the manner prescribed by the Federal and Local Rules. See Fed.R.Civ.P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record....") (emphasis added); Fed.R.Civ.P. 56(c)(3) ("The court need consider only the cited materials...."); Local Rule 56-1(e) ("A party must support each fact the party asserts in a brief with a citation to a discovery response, a deposition, an affidavit, or other admissible evidence. The evidence must be in the record or in an appendix to the brief. The citation must refer to a page or paragraph number or otherwise similarly specify where the relevant information can be found in the supporting evidence."). Specifically, Mr. Tucher violated these rules by: (1) failing to even attempt to cite evidence following many assertions of fact; (2) citing excerpts from his deposition that are not part of the record; (3) citing portions of his deposition that in no way support the assertion of fact made in his brief; and (4) citing entire lengthy documents without referring to "a page or paragraph number or otherwise similarly specify[ing] where the relevant information can be found in the supporting evidence, " Local Rule 56-1(e).

Furthermore, as Key Bank points out, Mr. Tucher relies on his own hearsay statements from his deposition to advance his claims. Hearsay is "a statement that... a party offers in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c)(2). "And hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial, except that affidavits and depositions, which (especially affidavits) are not generally admissible at trial, are admissible in summary judgment proceedings to establish the truth of what is attested or deposed, provided, of course, that the affiant's or deponent's testimony would be admissible if he were testifying live." Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997); see MMG Fin. Corp. v. Midwest Amusements Parks, LLC, 630 F.3d 651, 656 (7th Cir. 2011) ("A party may not rely on inadmissible hearsay to avoid summary judgment."). Mr. Tucher's deposition testimony that (1) his doctor advised him to pursue a job with Key Bank more seriously; (2) his doctor ordered him to lower his stress level due to his recent heart attack; and (3) his doctor advised him to take a leave of absence from work, [ see, e.g., dkt. 58 at 13], are all hearsay statements of Mr. Tucher's doctor that cannot be considered to prove the truth of the matter asserted.

Despite the fact that "[a] party must support each fact the party asserts in a brief with citation to... admissible evidence, " Local Rule 56-1(e) (emphasis added), the entire argument section of Mr. Tucher's brief-which spans eight pages-contains five citations to the record, [ see dkt. 57 at 6-13]. Worse still, two of these citations are to deposition excerpts that he failed to submit with into evidence. [ See id. at 8.] This leaves the entire argument section of his brief with only three citations to admissible evidence. Such a brief is inexcusable; it is detrimental to both Mr. Tucher's case and the Court's decisional process. Based on the foregoing, the Court will not consider Mr. Tucher's assertions of fact accompanied only by inadmissible hearsay or one of the four improper briefing techniques detailed above. This leaves very little evidence for the Court to consider, as it would be difficult to overstate Mr. Tucher's failure to comply with the rules.

Although the Court is under no obligation to do so, it will consider the evidence to which Mr. Tucher properly cites in his section entitled "Statement of Material Facts Not in Dispute" and attempt to link it to his arguments. To facilitate this process, the Court created as an exhibit to this Order a copy of Mr. Tucher's brief, wherein the Court crossed out all factual assertions involving one of the four types of violations of the Federal and Local Rules set forth above or those accompanied only by citations to inadmissible hearsay. As demonstrated by the Court's exhibit, excluding background facts that have no bearing on Mr. Tucher's claims, he is left with the following factual assertions supporting his claims:

• Mr. Tucher returned to Key Bank from his leave of absence with a doctor's note limiting him to forty hours of work per week. Mr. Bontreger stated that the note "doesn't say you can return to work full-time, " which Mr. Tucher interpreted to mean that he needed to work more than forty hours per week. [Dkt. 57 at 3 (citing dkt. 59 at 1, 2).][1]
• Although Ms. Hampton attested that she instructed Mr. Tucher to not stay at the bank branch after hours, Mr. Tucher testified that Ms. Hampton merely discouraged him from doing so. Further, he testified that it was necessary to stay after hours to complete his work. [ Id. at 5 (citing dkt. 49-1 at 28).]
• Mr. Earley treated other Key Bank branch managers move favorably than Mr. Tucher- e.g., Kelly Gerling was allowed to arrive late to work while Mr. Tucher was not. [ Id. (citing dkt. 49-1 at 37-40).] Moreover, all employees at Mr. Tucher's branch except Mr. Tucher received a performance-based raise in 2009 and 2010; he instead received a bonus. [ Id. at 5-6 (citing dkt. 59 at 9).] Finally, another Key Bank branch manager, Gary Guevitz, was over the age of sixty and also terminated by Key Bank. [ Id. at 6 (citing dkt. 59 at 15-16).]
• After Ms. Hampton placed Mr. Tucher on the Final Level PIP and provided him with the Exit Agreement, he provided her with a doctor's note and told her he needed to be placed on leave. [ Id. at 6 (citing dkt. 59 at 1).]
• Mr. Tucher denies ever making a racially offensive comment and denies any incident involving a coworker's water bottle. [ Id. (citing dkt. 56 at 4).]

In sum, Mr. Tucher's glaring failures to comply with the Federal and Local Rules have consequences. In deciding Key Bank's Motion for Summary Judgment, the Court will only consider these factual assertions, as they are the only ones supported by citations to admissible record evidence in accordance with the Federal and Local Rules. Given the small universe of facts that can be considered in assessing Mr. Tucher's claims, it is perhaps unsurprising that he produced insufficient evidence to avoid summary judgment in Key Bank's favor.

II.

BACKGROUND

In deciding a motion for summary judgment, the Court typically draws the factual background from the undisputed evidence and, if certain evidence is disputed, views that evidence in the light most favorable to the non-moving party. The Court follows that practice here; but as discussed in detail in subsection I.B above, Mr. Tucher's brief utterly fails to comply with the briefing and evidentiary procedures mandated by the Federal and Local Rules. Once the Court cuts through his missteps in this regard, very few of his factual assertions bearing on his claims may actually be considered by the Court in deciding this motion. Therefore, the Court draws the factual background primarily from the evidence that remains-namely, the undisputed evidence submitted by Key Bank-and supplements it with the few pieces of relevant admissible evidence to which Mr. Tucher directs the Court.

Mr. Tucher applied for employment with Key Bank in April 2009. [Dkt. 49-1 at 7.] Lisa Hampton, Key Bank's Area Retail Leader, scheduled an interview with Mr. Tucher, but offered to reschedule the interview after Mr. Tucher informed her that he suffered a heart attack. [Dkt. 48-2 at 2.] After two rounds of interviews, Key Bank offered Mr. Tucher the position of Key Center Manager ("KCM"), and he accepted the position in June 2009. [ Id. ] As a KCM, Mr. Tucher was ultimately responsible for an entire Key Bank branch. [Dkt. 49-1 at 11.]

Initially, Ms. Hampton was Mr. Tucher's immediate supervisor. [ Id. at 13.] From June 2009 to April 2010, Ms. Hampton observed several deficiencies in Mr. Tucher's job performance, including his failure to report to work on time, properly document client leads, and update his calendar (despite frequent requests by Ms. Hampton for him to do so). [Dkt. 48-2 at 3.] In short, Ms. Hampton felt that Mr. Tucher's job performance declined during this period. [ Id. ] Furthermore, Ms. Hampton attests that she repeatedly instructed Mr. Tucher not to work at the branch after hours, but Mr. Tucher testified that she merely discouraged him from doing so and that he needed to stay after hours to complete his work. [Dkt. 49-1 at 28.]

Around April 2010, Brian Earley became Mr. Tucher's immediate supervisor. [ Id. at 13.] Mr. Tucher took a medical leave of absence from May to June 2010, after which he returned to Key Bank with a doctor's note limiting him to forty hours of work per week. [Dkt. 59 at 2.] Mr. Tucher showed Nick Bontreger, Key Bank's District Retail Leader, the doctor's note, to which he responded that "this doesn't say you can return to work full-time." [ Id. ] ...


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