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Merryman v. Sarah Fisher/Hartman Racing LLC

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

December 3, 2014




This matter is before the Court on Defendant Sarah Fisher/Hartman Racing, LLC's ("SFHR") Motion for Summary Judgment (Filing No. 28). Plaintiff Scotty Merryman ("Mr. Merryman") asserts claims under 42 U.S.C. 2000e et seq. ("Title VII") for sex discrimination, religious discrimination, and retaliation, along with state law claims for battery, intentional infliction of emotional distress, and wrongful discharge. A hearing was held on the motion on October 23, 2014. Defendant SFHR was represented by counsel, Jeffrey Scott Beck and Ryann E. Ricchio. Plaintiff Mr. Merryman was represented by counsel, Brent R. Borg and Kelleigh Fagan. The court reporter was David Moxley.

Mr. Merryman has not responded to SFHR's arguments on his state law battery, intentional infliction of emotional distress, and wrongful discharge claims, and only addresses his Title VII claims; therefore, the Court find that the state law claims are waived. Thus, the Court is left to resolve only the motion on Mr. Merryman's Title VII claims. For the reasons set forth below, SFHR's Motion for Summary Judgment is GRANTED.


The following material facts are not disputed and are viewed in the light most favorable to Mr. Merryman as the non-moving party. Mr. Merryman was an employee of SFHR during 2011 and 2012. SFHR is an auto racing team that competes in the IndyCar Series. The majority of SFHR's employees were male, including all garage/shop employees during the 2011 and 2012 racing seasons. Andy O'Gara ("Andy") served as SFHR's General Manager, and was ultimately responsible for the day-to-day operations of the race team, including overseeing the garage and engineering departments. Mike O'Gara ("Mike") was SFHR's technical director in 2011 and he was promoted to Team Manager for the 2012 racing season. Mike was responsible for organizing timelines for building the racecar, approving time off of work, and race strategy. He reported directly to Andy. Anton Julian ("Mr. Julian") was the SFHR Crew Chief. As Crew Chief, Mr. Julian was responsible for building the car to engineering and manufacturer specifications, including coordination of the car build and assignment of tasks to the mechanics. Mr. Merryman stipulates to the fact that Mr. Julian was not a supervisor, and he had no power to hire, terminate, fail to promote, reassign, or affect a decision causing a significant change in benefits for any SFHR employee. Mr. Julian reported directly to Mike.

Mr. Merryman had a long-standing relationship with Sarah Fisher ("Ms. Fisher"), Andy and Mike. He had previously worked as a tire changer for race weekends in 2008, 2009, and 2010. In early 2011, Andy hired Mr. Merryman as a full-time damper technician. After the 2011 racing season, the team switched damper brands. Andy moved Mr. Merryman from dampers to a frontend mechanic position for the 2012 racing season, and he was replaced by Casey O'Gara. As front-end mechanic, Mr. Merryman was responsible for building and maintaining the front end of the racecar. Mr. Merryman is a non-denominational Christian, and Mr. Julian and SFHR's management were aware of his religion. SFHR granted Mr. Merryman's requests for time off from work for church activities.

Mr. Merryman alleges that he was subjected to discrimination and harassment based upon his sex and his religion. Specifically, employees would often make derogatory comments and jokes amongst themselves about women and homosexuals. They would also go out drinking and to strip clubs together. Mr. Merryman, however, did not engage in such conduct and "locker room talk" because of his religious beliefs. His allegations of harassment primarily stem from comments and actions directed toward him by Mr. Julian. During the first four months of his employment, Mr. Julian would ask him daily, "how long has it been since you've been laid?" Mr. Julian asked Mr. Merryman about why he quoted so many Bible verses on his Facebook page. When he heard that Mr. Merryman was dating a woman from his church, Mr. Julian made comments that Mr. Merryman was "preying on the weak". Mr. Julian would give Mr. Merryman the "silent treatment" and refuse to answer work-related questions or allow him to borrow his mechanic's book. Mr. Julian also made fun of Mr. Merryman's tattoo of a Christian cross on his arm, but also mocked Mr. Merryman's Indianapolis 500 tattoo. Mr. Julian also would make comments in Mr. Merryman's presence such as "What would Jesus do, " "Amen, " "Hallelujah, " and "Praise the Lord." Mr. Merryman felt he was singled out by Mr. Julian.

Once Mr. Julian became a front end mechanic, Mr. Merryman believes he was subjected to more severe harassing behavior. In March 2012, Mr. Merryman and Mr. Julian had to share a hotel room at a race test in Birmingham, Alabama. Mr. Julian made a statement about "roommate rules" and said that he was to get the bed by the air conditioner, and both he and Mr. Merryman had to be naked. When they got to the hotel room, Mr. Julian went into the room first and pulled his pants and underwear down, and then laughed and pulled them back up. Mr. Merryman did not report the statement or the incident in the room to anyone in SFHR management. On the final day of the same trip, Mr. Merryman believes that Mr. Julian hit him on the back of the head with his penis. Mr. Merryman had his back turned to Mr. Julian, but turned around to see Mr. Julian zipping up his pants after feeling at tap on the back of his head, and later heard general gossip about the penis incident in the following days. Mr. Merryman discussed the penis incident with two coworkers, Mr. Albert and Mr. Ward, but did not report it to Andy, Mike, or any other SFHR management. Mr. Merryman believes that Mr. Albert discussed the penis incident with Mike, but this is based upon his discussions with Mr. Albert. Sometime later, Mike had a meeting with Mr. Julian in which he told him to sort out his issues with Mr. Merryman. Mr. Merryman also claims he was told by Mr. Ward that he had a conversation with Andy about the incident. The factual allegations regarding the conversations between Mike, Andy, Mr. Ward, Mr. Albert, and Mr. Julian are all based upon what was relayed to Mr. Merryman after their conversations with Mike and Andy.

SFHR claims that Mr. Merryman had a number of performance deficiencies during his employment. At the Seabring International Raceway test held March 7 through 10, 2012, Mr. Merryman failed to properly tighten the left front suspension bolt. He reported the loose nut to Andy and Mike, and apologized for the error. Andy discussed with Mr. Merryman, and later Mike, the serious implications of such an error. At the Barber race test held March 12 through 14, 2012, Mr. Merryman used the wrong bolts on the steering rack and failed to tighten bolts on the steering arm to specification. Mr. Julian reported these errors to Mike. Additionally, there were reports that Mr. Merryman left bolts on the front suspension loose at a race in Detroit in June 2012. There was also a problem at a race in Alabama in April 2012 in which Mr. Merryman improperly installed the racecar's steering wheel, resulting in an offset between 10 and 30 degrees. The driver informed Mike and Andy of the problem over the radio during the race. Mr. Merryman also failed to properly prepare the driver's hydration system in March and June 2012. And, at a race in July 2012, Mr. Merryman failed to bring the jump battery with the car before a race, and then had an angry outburst in the pit in front of the team's sponsors. Mr. Merryman speculates that he was "set up" by Mr. Julian with respect to the jump battery incident, but does not cite to any evidence to support this claim.

Mr. Merryman was discharged in July 2012 for numerous performance deficiencies. Andy, Mike, and Ms. Fisher met to discuss concerns about Mr. Merryman's errors, attitude, and inability to get along with other team members. Andy and Mike made the decision to terminate his employment, and Ms. Fisher concurred. Andy sent an e-mail to Wink Hartman ("Mr. Hartman"), the other owner of the race team, on July 10, 2012, informing him that he was terminating Mr. Merryman's employment. Andy explained that Mr. Merryman had made "multiple mistakes that we deem unacceptable on the racecar" and has not been prepared. The email also stated that Mr. Merryman could not accept Mr. Julian as an authority figure and "has come to Mikey and I with too much whining and it's just not working." Mr. Merryman acknowledged that he had no reason to believe that Andy did not honestly believe that he had performance issues. Additional facts will be addressed below as necessary.


Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews "the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Hemsworth, 476 F.3d at 490 (citation omitted). "In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Finally, "neither the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment." Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).


A. Motion to Strike ...

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