United States District Court, N.D. Indiana
OPINION AND ORDER
WILLIAM C. LEE, District Judge.
This matter is before the court on a motion for summary judgment [DE 52] filed by the defendant, SouthernCare, Inc. ("SouthernCare"), on February 20, 2014. The plaintiff, Odell Hughes ("Hughes"), filed his response on June 25, 2014, to which SouthernCare replied on July 25, 2014.
Also before the court are three motions to strike. On July 25, 2014, SouthernCare filed a motion to strike [DE 72] several of Hughes' exhibits attached to his response to the motion for summary judgment. Hughes' responded to the motion on August 4, 2014, to which SouthernCare replied on August 14, 2014.
On July 28, 2012, Hughes filed a motion to strike Cindy L. Phillips' Declaration [DE 73]. SouthernCare responded to the motion on August 14, 2014, to which Hughes replied on August 16, 2014.
On August 7, 2014, Hughes filed a motion to strike [DE 75] statements in SouthernCare's reply in support of its motion for summary judgment. Although SouthernCare responded to the motion on September 3, 2014, this response was stricken by the court on this same date for being filed untimely without good cause. [DE 81]
Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Not every dispute between the parties precludes summary judgment, however, since "[o]nly disputes over facts that might affect the outcome of the suit under the governing law" warrant a trial. Id . To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Heft v. Moore , 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in its own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc. , 621 F.3d 651, 654 (7th Cir. 2010).
Hughes, who was formerly employed at SouthernCare, filed a complaint against SouthernCare alleging racial harassment/discrimination in violation of Title VII and also alleging various state law claims, including defamation, breach of contract and intentional infliction of emotional distress. Hughes also requests punitive damages.
The court will first address SouthernCare's motion to strike. In support of his Response to the Defendant's Motion for Summary Judgment, Hughes attaches as exhibits, an affidavit of himself and former SouthernCare employee Linda Holley, a statement of former SouthernCare employee Marie Hyman, and his annual performance appraisals. (dkt.# 69-1, 69-2, 69-3 and 69-4). However, the affidavits, statement, and performance appraisals are inadmissible in this summary judgment proceeding and will be stricken.
"Admissibility is the threshold question, because a court may consider only admissible evidence in assessing a motion for summary judgment." Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). "[A] party may not rely upon inadmissible evidence to oppose a motion for summary judgment." Id. With regard to affidavits, they must be made on personal knowledge, set forth facts as would be admissible in evidence, and the affiant must be competent to testify to the matters stated therein. Reed v. Richards, 1994 WL 259442, at *2 (7th Cir. 1994). Federal Rule of Civil Procedure 56(e) also requires affidavits "be made on personal knowledge... set forth such facts as would be admissible in evidence, and... show affirmatively that the affiant is competent to testify to the matters stated therein. Affidavits that are not under oath are not sufficient for purposes of opposing a motion for summary judgment. Id. Further, where an affidavit does not reveal the source of the author's awareness, the affidavit fails to establish the affiant's personal knowledge on the sourceless subject. Ward v. First Fed. Sav. Bank, 173 F.3d 611, 618 (7th Cir. 1999). Although the personal knowledge of the affiant may include inferences and opinions, the inference must be substantiated by specific facts. Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998). Further, documents that are not properly authenticated are not admissible in a summary judgment proceeding. Gunnville, supra,
Despite having been deposed over the course of two days, rather than cite to his deposition testimony in support of his Response, Hughes submitted an affidavit. "It is a well settled rule of this Court that a plaintiff cannot create an issue of material fact merely by manufacturing a conflict in his own testimony by submitting an affidavit that contradicts an earlier deposition, and, in turn, defeat a defendant's motion for summary judgment Thus, when a conflict arises between a plaintiff's own sworn deposition and his sworn affidavit, the deposition testimony overrides statements made in the affidavit." Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir. 1999) (quotations and citations omitted), overruled on other grounds, Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013).
In paragraph three of his affidavit, Hughes claims that as a result of the June 2011 incident, he was suspended, and SouthernCare threatened not to pay him. However, nowhere in Hughes' explanation of the June 2011 incident in his deposition, did he describe this treatment. (Hughes Dep., p. 111, lns. 2-25; p. 112, lns. 1-24). Further, the corrective action plan that Hughes acknowledged he signed does not indicate that he was suspended, either with or without pay. (Hughes Dep., p. 102, lns. 1-4, Exh. 11). In paragraph three, Hughes also claims other employees involved in the June 2011 incident were not suspended. However, this is a conclusory statement, outside the scope of Hughes' personal knowledge, and the source of this conclusory statement is not identified in Hughes' affidavit.
In paragraph five, Hughes denies that he committed mileage fraud. However, he admitted in his deposition that he claimed miles for miles not driven. Hughes admits that he logged in to CellTrak as if he was in the office when he was really at home. (Hughes Dep., p. 230, lns. 19-25; p. 231, lns. 1-7). Hughes admits that he made hand corrections to his CellTrak record to reflect that on September 21, 2011, he was in the office from 2:30 to 3:30 and gave those corrections to Thacker, when he was actually never at the office. (Hughes Dep., p. 237, lns. 19-22). He also admits that on that same date he claimed he was in the office in the morning from 9:41 to 11:13 when the CellTrak mapping showed he was not at the office. (Hughes Dep., p. 238, lns. 8-15). He also agreed that his last visit at 2:27 p.m., was not at the office or at a work-related visit, and was where his CellTrak phone remained for the next nine hours. (Hughes Dep., page 238, lns. 18-25) On September 23, 2011, Hughes admits he claimed mileage to the office in the morning, but was never in the office that morning. (Hughes Dep., p. 239, lns. 1-9) He also agreed that he was aware of the law and the policy that he could not claim mileage for the first and last stops of the day. (Hughes Dep., p. 243, lns. 3-8). Thus, the statement in his affidavit that he did not commit mileage fraud, directly conflicts with his deposition testimony, and should be stricken.
As to paragraph six, Hughes cannot turn Ms. Hyman's inadmissible statement (discussed below) into admissible evidence, simply by including it in his affidavit. For the reasons stated below, the statement is inadmissible hearsay and will be stricken. As to paragraph 10, for the reasons below, Hughes' performance appraisals are inadmissible hearsay and not properly authenticated. Hughes cannot make them admissible by referencing them in his affidavit, and they will also be stricken.
As to the admissibility of Linda Holley's affidavit, at issue in this case is Hughes' seeking mileage reimbursement under SouthernCare's CellTrak policy. SouthernCare's CellTrak and related mileage policy went into effect in August 2009. (Defendants' Response to Plaintiff's Interrogatories). Linda Holley's employment terminated with Southern Care in 2006. (Declaration of Cindy L. Phillips). As Linda Holley's employment terminated before SouthernCare's CellTrak and mileage policies went into effect, she has no personal knowledge as to those policies, or the enforcement thereof. Nor does she in her affidavit claim to have knowledge of the CellTrack policy. Thus her affidavit will be stricken.
As to Marie Hyman's statement, it is an unsworn statement, and offered for the truth of the matter. It is thus inadmissible hearsay, and will also be stricken. As to Hughes' annual performance appraisals, they will also be stricken. No witness has laid the foundation for the admissibility of these documents, and thus they are inadmissible.
Hughes claims that Hyman's unsworn statement is admissible pursuant to Fed.R.Evid. 807(a). As an initial matter, Rule 807(b) requires that a statement is only admissible under 807(a), if before a trial or hearing, the proponent gives the adverse party notice of the intent to offer the statement, and provides the declarant's name and address so that the adverse party has a fair opportunity to meet it. Thus, Rule 807, parts (a) and (b) together, contemplate the use of such statements only at an evidentiary hearing or trial, with pre-trial or pre-hearing notice to the opposing party. Thus Rule 807 is inapplicable to this summary judgment proceeding. Further, the Rule requires Hughes to provide SouthernCare notice of his intent to use the statement, which he did not do. Discovery is now closed, and SouthernCare now has no opportunity to "meet" the declaration and the summary judgment briefing is complete. Last, he claims that Rule 807 applies based on Ms. Hyman's refusal to cooperate in providing Hughes an affidavit. However, Hughes has not demonstrated that he was unable to acquire the sought after testimony through a deposition subpoena of Ms. Hyman before the close of discovery. Thus, Rule 807 does not save Hyman's statement from the hearsay rule.
As noted, at issue in this case is SouthernCare's policies and procedures for claiming mileage reimbursement through use of the CellTrak system at the time in question. Hughes claims that because Ms. Holley had knowledge of SouthernCare's mileage claim procedures at the time SouthernCare employed her, her affidavit should not be stricken. However, any mileage reimbursement policies that may have been in effect prior to the time in question and prior to the institution of the CellTrak policy are irrelevant to this lawsuit. As stated in its memorandum in support of its motion for summary judgment, SouthernCare had a written CellTrak policy that was instituted after Ms. Holley's employment ended with SouthermCare, which specifically states that mileage cannot be claimed for the first and last visits of the day. Thus, Ms. Holley's affidavit regarding any policies in effect prior to the time in question and prior to the CellTrak policy is irrelevant and will be stricken.
As to Hughes' statement that he was initially suspended after the June 8, 2011, incident, his description of this event is lacking from his deposition testimony in which he was given every opportunity to fully explain the June 8, 2011 incident. What Patricia Pancner may have said about his getting paid while at home is irrelevant to whether Hughes' affidavit is consistent with his own testimony. Thus, the statement will be stricken. As to whether or not others were suspended as a result of the June 8, 2011, incident, Hughes attached a second affidavit signed by himself stating that it was general knowledge that others involved in the incident were not disciplined. Hughes does not claim that he had access to any personnel files or disciplinary records to support this statement. While he claims that SouthernCare did not produce any documents that it disciplined, suspended, or threatened others as a result of the June 2011 incident, he has not attached said discovery requests and responses to support this allegation. As to Hughes' statement that SouthernCare threatened to not pay him after the June 2011 incident, the evidence to which Hughes cites in the record in the form of the Pancner memo does not constitute a threat. It speaks for itself and does not state or support his assertion. As for Hughes' statements that he denied committing mileage fraud, he claims that SouthernCare misleads with its use of two days worth of deposition testimony. However, Hughes repeatedly admitted in his deposition that he was making claims for miles not driven which constitutes mileage fraud. Thus, the above statements will be stricken from Hughes' affidavit.
The court will now turn to the motion for summary judgment. The factual evidence demonstrates that Hughes was hired by SouthernCare as a Chaplain on February 18, 2004. (Complaint, ¶6). At the time he was hired, and on several occasions thereafter, Hughes acknowledged in writing that his employment with SouthernCare was "at will, " and that he could be terminated at any time without notice for cause. (Hughes Dep. Exhibit C, p. 64, 65, 66, 67, 68, 76, 77, 78, 153; Hughes Dep. Exs. 2, 4, 7 and 14). Hughes also understood that his employment with SouthernCare was not for a fixed period. (Hughes Dep., p. 65, lns. 11-17; p. 275, lns. 10-19).
Both before and during his employment with SouthernCare, Hughes signed numerous documents indicating his agreement to conform to the policies and regulations of SouthernCare. (Hughes Dep., p. 64, lns. 2-25, p. 65, lns. 1-10; p. 66, lns. 19-25; p. 67, lns. 1-25; p. 68, lns. 1-19; p. 76, lns. 16-25; p. 77, lns. 1-25; p. 78, lns. 1-3; p. 153, lns. 13-25; p. 156, lns. 23-25; p. 157, lns. 1-13; Hughes Dep. Exs. 2, 4, 7, 14 and 16). One specific policy to which Hughes agreed was titled "Conduct and Working Environment." (Hughes Dep., p. 69, lns. 2-11; Hughes Dep. Ex. 3). The policy provided that employees must maintain a civil working environment that encourages mutual respect and professionalism, required employees to abide by SouthernCare's policies, provided that employees have the right to work without disorderly or undue influence from others, and that gross misconduct would be grounds for immediate termination. (Hughes Dep., p. 69, lns. 12-25; p. 70, lns. 1-25; p. 71, lns. 1-25; Hughes Dep. Ex. 3). Malicious or abusive language, and behavior and falsification of any documentation, were within the definition of gross misconduct, and Hughes was aware that a violation of these two policies could lead to immediate termination. (Hughes Dep., p. 72, lns. 5-25; p. 73, lns. 2-15; Hughes Dep. Ex. 3).
Hughes also acknowledged that SouthernCare had an equal opportunity policy that it would comply with all provisions of Title VII of the Civil Rights Act of 1964, and that all decisions regarding employment would be made without regard to race, among other factors. (Hughes Dep., p. 88, lns. 23-25; p. 89, lns. 1-25; p. 90, lns. 1-15; Hughes Dep. Ex. 9). Pursuant to that policy, managers and supervisory staff enforce the policy and equal opportunity posters are posted. (Hughes Dep. Ex. 9). Supervisors also receive formal training on EEOC policies, and employees are advised of the EEOC policies through the handbook. (Hughes Dep. Ex. 9). SouthernCare's harassment and discrimination policies also are documented in its employee handbook. (Hughes Dep., p. 73, lns. 21-25; p. 74, lns. 1-25; p. 75, lns. 1-22; Hughes Dep. Ex. 6). This policy also prohibits harassment and discrimination based on an individual's race, prohibits conduct demeaning to another person, and provides an investigatory mechanism. (Hughes Dep. Ex. 6).
SouthernCare also had in place procedures for reporting incidents of harassment or other employment-related concerns. (Hughes Dep., p. 75, lns. 23-25; p. 76, lns. 1-12; p. 78, lns. 22-25; p. 79, lns. 1-18; Hughes Dep. Exs. 6 and 8). Hughes acknowledged that such grievances could even be voiced anonymously by calling a hotline without fear of retaliation. (Hughes Dep., p. 79, lns. 19-25; p. 80, lns. 1-6; Hughes Dep. Exs. 6 and 8). SouthernCare's policies also provided for an investigative and disciplinary mechanism for acts motivated by or related to any form of harassment or a violation of any of SouthernCare's policies. (Hughes Dep. Exs. 3, 6, and 8; Duren Dec. ¶6). Hughes admits that he never made any complaints to, or filed any grievances with SouthernCare during his employment in which he alleged that he was being treated differently based on his race. (Hughes Dep. p. 80, lns. 23-25; p. 81, lns. 1-8).
According to Hughes, on June 8, 2011, he became irritated with other SouthernCare employees when he could not find notebooks to complete paperwork. (Hughes Dep., p. 102, lns. 1-25; p. 103, lns. 1-25; p. 104, lns. 1-25; p. 105, lns. 1-25; p. 106, lns. 1-15). After a SouthernCare investigation, Hughes received an employee counseling form and an employee corrective action form from SouthernCare. (Hughes dep. p. 100, lns. 22-25; p. 101, lns. 1-25; p. 102, lns. 1-4; Hughes Dep., Ex 11 and 12; Defendant's Production Responses, ("RFP"), 1(a) SC00070-71). The employee counseling form indicated that Hughes was written up for violation of company policy and improper conduct and failure to meet standards of performance. (Hughes Dep. p. 102, lns. 1-4; Hughes Dep., Ex. ...