United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on (1) Defendant Quaker Chemical
Corporation’s Motion for Summary Judgment [DE 21],
filed by Defendant Quaker Chemical Corporation (“Quaker
Chemical”) on April 22, 2016; (2) Defendant Quaker
Chemical Corporation’s Motion to Strike the Unsworn
Statements of Brian King and Thomas Dobosz [DE 33], filed by
Quaker Chemical on June 21, 2016; and (3) Plaintiff’s
Motion to Substitute Exhibits [DE 34], filed by Plaintiff
Thomas Dobosz on June 22, 2016. For the reasons set forth
below, the Court grants the Motion for Summary Judgment in
favor of Defendant and against Plaintiff on all claims.
Thomas Dobosz filed his Complaint in the Lake County,
Indiana, Superior Court on April 15, 2015, alleging that
Defendant Quaker Chemical, his former employer, discriminated
against him based on his disability by refusing to provide a
reasonable accommodation and by terminating his employment,
discriminated against him based on his age by replacing him
with a younger individual he had trained, and violated his
due process and equal protection rights guaranteed by the
United States Constitution.
Quaker Chemical removed the action to this Court on May 26,
2015, and filed an Answer on June 25, 2015.
Chemical filed the instant Motion for Summary Judgment on
April 22, 2016. Dobosz filed a response on June 7, 2016,
attaching the unsworn Declarations of Brian King and himself.
Quaker Chemical filed a reply on June 21, 2016.
same date, Quaker Chemical filed a Motion to Strike the
Unsworn Statements of Brian King and Thomas Dobosz. In lieu
of a response brief, Dobosz filed a Motion to Substitute
Exhibits on June 22, 2016. In response to the Motion to
Substitute and in reply in support of the Motion to Strike,
Quaker Chemical filed a brief on June 24, 2016. Dobosz did
not file a reply in support of the Motion to Substitute, and
the time to do so has passed.
parties filed forms of consent to have this case assigned to
a United States Magistrate Judge to conduct all further
proceedings and to order the entry of a final judgment in
this case. Therefore, this Court has jurisdiction to decide
this case pursuant to 28 U.S.C. § 636(c).
Federal Rules of Civil Procedure require that a motion for
summary judgment be granted “if the movant shows that
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). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “Summary
judgment is appropriate when no material fact is disputed and
the moving parties are entitled to judgment as a matter of
law, meaning that no reasonable jury could find for the other
party based on the evidence in the record.” Carman
v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).
seeking summary judgment bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact. See
Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56 (a), (c). The
moving party may discharge its initial responsibility by
simply “‘showing’-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party’s case.”
Celotex, 477 U.S. at 325; see also Spierer v.
Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the
nonmoving party would have the burden of proof at trial, the
moving party is not required to support its motion with
affidavits or other similar materials negating the
opponent’s claim. Celotex, 477 U.S. at 323,
325; Spierer, 798 F.3d at 507-08; Modrowski v.
Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).
the moving party puts forth evidence showing the absence of a
genuine dispute of material fact, the burden shifts to the
non-moving party to provide evidence of specific facts
creating a genuine dispute.” Carroll v. Lynch,
698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by
merely resting on its pleadings. See Fed. R. Civ. P.
56(c)(1), (e); see also Flint v. City of Belvidere,
791 F.3d 764, 769 (7th Cir. 2015) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The
nonmoving party must “do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P.
56(e) (1986)). Rule 56(e) provides that “[i]f a party
fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as
required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion [or] grant summary
judgment if the motion and supporting materials-including the
facts considered undisputed-show that the movant is entitled
to it . . . .” Fed.R.Civ.P. 56(e); see also
Anderson, 477 U.S. at 248-50.
viewing the facts presented on a motion for summary judgment,
a court must construe all facts in a light most favorable to
the non-moving party and draw all legitimate inferences in
favor of that party. See Anderson, 477 U.S. at 255;
McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d
940, 948 (7th Cir. 2009). A court’s role is not to
evaluate the weight of the evidence, to judge the credibility
of witnesses, or to determine the truth of the matter, but
instead to determine whether there is a genuine issue of
triable fact. See Anderson, 477 U.S. at 249-50.
support of his response to the Motion for Summary Judgment,
Dobosz submitted two declarations-those of himself and Brian
King, a former employee of ArcelorMittal Steel. Quaker Chemical
asks the Court to strike both because they are undated,
unsworn, and not made based on personal knowledge and to
strike Dobosz’s Declaration for the further reason that
it conflicts with his prior deposition testimony.
federal court, an unsworn declaration must be dated, made in
writing, and subscribed by the declarant “as true under
penalty of perjury.” 28 U.S.C. § 1746. The Seventh
Circuit Court of Appeals has stated that, “so long
as the documents comply with 28 U.S.C. § 1746, and
in the interests of justice, a district court should not be
unnecessarily hyper-technical and overly harsh on a party who
unintentionally fails to make certain that all technical,
non-substantive requirements of execution are
satisfied.” Pfeil v. Rogers, 757 F.2d 850, 859
(7th Cir. 1985) (emphasis added); see also Davis v. Wells
Fargo Bank, 685 F.Supp.2d 838, 842 (N.D. Ill. 2010)
(quoting Knights v. Williams, No. 02 C 5017, 2005 WL
1838427, at *3 (N.D. Ill. July 28, 2005)) (internal quotation
courts have stricken unsworn and/or undated declarations for
failing to comply with § 1746. See Kalra v. United
States, No. 12-CV-3154, 2013 WL 1749385, at *3 (N.D.
Ill. Apr. 23, 2013) (striking the unsworn declaration because
it was not dated (citing Pfeil, 757 F.2d at 859));
Mitchel v. Buncich, No. 2:11-CV-91, 2013 WL 275592,
at *4 (N.D. Ind. Jan. 24, 2013); see also Counts v.
Kraton Polymers U.S., LLC, 260 F. App’x 825, 829
(6th Cir. 2008). However, the absence of a date may be
excused when “extrinsic evidence demonstrates the
approximate date of signing.” Brown v.
White’s Ferry, Inc., 280 F.R.D. 238, 244 (D. Md.
2012) (citing Peters v. Lincoln Elec. Co., 285 F.3d
456, 475-76 (6th Cir. 2002) (citing EEOC v. World’s
Finest Chocolate, Inc., 701 F.Supp. 637, 639 (N.D. Ill.
1988))); see also Kennedy v. Schneider Elec., No.
2:12-CV-122-PRC, 2014 WL 4388147, at *1 (N.D. Ind. Sept., 5,
2014); Davis, 685 F.Supp.2d at 842; Montgomery
v. Ruxton Health Care, IX, LLC, No. 3:06-CV-24, 2006 WL
3746145, *3 (E.D. Va. Dec. 15, 2006).
response to Quaker Chemical’s Motion to Strike, Dobosz
filed a Motion to Substitute, resubmitting the two
declarations with the date June 2, 2016, typed on each.
Counsel for Dobosz states in the Motion to Substitute that
the “dates have been confirmed with the
affiants.” (Pl. Mot. 1). Because Dobosz’s counsel
confirmed the dates with Dobosz and King, the Court finds
that Dobosz has provided extrinsic evidence to show that the
declarations were Dated: June 2, 2016, and, thus, denies the
Motion to Strike on the basis that the declarations are
undated. As a result, the Court denies as moot the Motion to
the Court finds that portions of both declarations are not
made based on personal knowledge, as required by Federal Rule
of Civil Procedure 56. See Fed. R. Civ. P. 56(c)(4)
(“An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.”). In this case, both declarations
“affirm under the penalties of perjury that the
representations are true and correct to the best of my
knowledge and belief.” (Pl. Resp., Ex. 14, Ex. 15)
(emphasis added). “Declaring that a person believes
something or knows something to the best of one’s
knowledge is not equivalent to saying the person has personal
knowledge.” Estate of Cape v. United States,
No. 11-C-0357, 2015 WL 5794209, at *2 (E.D. Wis. Oct. 2,
2015) (disregarding statements that were made to “the
best of [Walther’s] knowledge and belief”).
personal knowledge can be inferred from the content of a
declaration. See Wine & Canvas Dev., LLC v.
Roberts, No. 1:12-CV-1752, 2013 WL 1099895, at *2 (S.D.
Ind. Mar. 15, 2013) (citing Credentials Plus, LLC v.
Calderone, 230 F.Supp.2d 890, 904-05 (N.D. Ind. 2002);
11 Moore’s Fed. Practice § 56.14[c] (Matthew
Bender 3d ed. 2002)). Thus, the Court infers that certain of
Dobosz’s and King’s statements are based on
personal knowledge because the content of the statements
logically flows from personal experience. Accordingly, the
Court grants the Motion to Strike only as to the following
portions of the declarations for which personal knowledge
cannot be inferred:
1. Paragraph 4: “No Physical Demand Analysis was done
back in 2008.”
2. Paragraph 6: “and received a report” and
“they just filed the report away and ignored
3. Paragraph 8: “contrary to Quaker’s counsel
telling EEOC investigator they did so”
4. Paragraphs 11 and 17 in their entirety.
5. Paragraph 18: “and I was not able to make them
understand . . . concerned at the time”
6. Paragraph 20: “and would have probably . . .
Physical Demand Analysis that again”
1. Paragraphs 5 and 6 in their entirety
2. Paragraph 9: “and as far as I am concerned . . .
people who came there knew”
3. Paragraph 11 first sentence
4. Paragraph 13: “and, to the best of my knowledge . .
. complete the tasks of his job”
although Quaker Chemical argues generally that Dobosz’s
Declaration conflicts with his prior deposition testimony,
Quaker Chemical has not identified any declaration statements
and deposition testimony that conflict. It is not the
Court’s job to search the record for all such conflicts
on a motion to strike. Because Quaker Chemical fails to point
to any conflicting statements, the Court denies the motion to
strike on this ground. However, the Court will address any
conflict that may arise during the course of ruling on the
Is Hired by Quaker Chemical
Chemical contracted with ArcelorMittal to provide on-site
chemical management services at ArcelorMittal’s Indiana
Harbor West facility in East Chicago, Indiana. Dobosz began
working for Quaker Chemical at the ArcelorMittal facility on
October 27, 2003, as a Technical Service Specialist I when he
was fifty-four years old with an annual salary of over $42,
000.00. Dobosz’s primary job responsibility was testing
Dobosz’s September 2005 Injury
September 23, 2005, while working as a Technical Service
Specialist I, Dobosz injured his neck when he hit his head on
a doorway at the ArcelorMittal steel mill; Dobosz was wearing
a helmet at the time. Dobosz’s treating physician
“gav[e] him an ice pack” and told him to take
over-the-counter pain medication for his neck pain. Dobosz
had pain injections and took anti-inflammatory medication.
Dobosz missed at most three days of work due to this injury.
During these three days, Dobosz requested that someone cover
his job while he was receiving treatment for his injury, and
Quaker Chemical had his superiors cover his shifts while he
received treatment. Dobosz did not request any additional
accommodations for his 2005 injury, and he continued to
perform all of the required physical activities at Quaker
Chemical that he performed prior to his injury. On September
25, 2006, Dobosz denied numbness, weakness, or tingling in
his arms as a result of the 2005 injury. On December 13,
2006, Quaker Chemical paid Dobosz $5, 200.00 for his
worker’s compensation claim arising out of the 2005
injury. As part of the claims process, a non-treating
physician evaluated Dobosz’s medical records and
determined that Dobosz had a permanent partial impairment
affecting four percent of his total person. The 2006
worker’s compensation settlement did not contain any
Dobosz’s Promotion to Site Engineer I
worked as a Technical Service Specialist I until Quaker
Chemical promoted him to Site Engineer I on March 1, 2008, at
the age of fifty-nine years. Dobosz’s promotion
resulted in more responsibility, more diverse duties, and a
December 2008 OSHA Physical Examination
December 8, 2008, Dobosz underwent a routine examination
required by OSHA to determine the state of his health and his
ability to perform his duties as Site Engineer I. The
resulting report, dated January 27, 2009, provided that
Dobosz’s physical examination was “normal except
for symptoms related to a neck injury in 2005.” (Def.
Mot., Ex. 3). The reviewing physician stated Dobosz was
“medically cleared with the following restrictions: No
lifting over 35 lbs.; no climbing ladders.” (Def. Mot.,
Carter, the human resources manager for Quaker Chemical,
stated that she was not aware of any permanent restrictions
stemming from Dobosz’s 2005 injury. (Def. Mot., Ex. 2,
p. 17). However, Dobosz testified that he had permanent
restrictions of no lifting over 35 pounds and no climbing
ladders following his 2005 injury. He then testified that the
2009 restrictions were the same as the restrictions following
the 2005 injury. Dobosz testified that Quaker Chemical
accommodated his restrictions between 2006 and his surgery in
2012 by letting “me do my job the whole time, even
though the doctor says I couldn’t do certain
things.” (Def. Mot., Ex. 1, 171, ll. 7-8). He further
testified, “I was doing whatever I needed to do to
work. When you’re a one-man show, you do what’s
got to be done. You make the customer happy. Whatever the
customer wants, you do, and if you’re the only guy on