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Dobosz v. Quaker Chemical Corp.

United States District Court, N.D. Indiana, Hammond Division

August 16, 2016

THOMAS DOBOSZ, Plaintiff,
v.
QUAKER CHEMICAL CORPORATION, Defendant.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE

         This 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.

         PROCEDURAL BACKGROUND

         Plaintiff 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.

         Defendant Quaker Chemical removed the action to this Court on May 26, 2015, and filed an Answer on June 25, 2015.

         Quaker 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.

         The 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.

         The 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).

         SUMMARY JUDGMENT STANDARD

         The 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).

         A party 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).

         “Once 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.

         In 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.

         MOTION TO STRIKE

         In 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.[1] 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.

         In 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 marks omitted).

         Some 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).

         In 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 Substitute.

         Nevertheless, 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”).

         However, 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[1][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:

Dobosz Declaration
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 them”
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”
King Declaration
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”

         Finally, 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 motion.

         MATERIAL FACTS [2]

         1.Dobosz Is Hired by Quaker Chemical

         Quaker 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 oil solutions.

         2. Dobosz’s September 2005 Injury

         On 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 work restrictions.

         3. Dobosz’s Promotion to Site Engineer I

         Dobosz 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 higher salary.

         4. December 2008 OSHA Physical Examination

         On 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., Ex. 3).

         Michelle 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 ...


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