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Davis v. Munster Medical Research Foundation, Inc.

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

September 30, 2016

LINDA J. DAVIS Plaintiff,
v.
MUNSTER MEDICAL RESEARCH FOUNDATION, INC. d/b/a COMMUNITY HOSPITAL. Defendant.

          OPINION AND ORDER

          RUDY LOZANO, Judge United States District Court

         This matter is before the Court on the “Defendant's Motion for Summary Judgment, ” filed by Defendant Munster Medical Research Foundation d/b/a Community Hospital (“Hospital”) on February 19, 2016 (DE #67), “Defendant's Motion to Strike Portions of Plaintiff's Evidence, Statement of Genuine Disputes and Plaintiff's Affidavit from Plaintiff's Response to Defendant's Motion for Summary Judgment, ” filed on August 19, 2016 (DE #91), “Defendant's Motion to Strike Portions of Plaintiff's Evidence based upon Failure to Disclose during Discovery, ” filed on August 19, 2016 (DE #93), and “Stipulated Motion to Apply the Legal Standards Set Forth in Ortiz vs. Werner to the Parties' Pending Summary Judgment Pleadings and Evidence, ” filed by both parties on September 14, 2016 (DE #98). For the reasons set forth below, Defendant's Motion for Summary Judgment (DE #67) is GRANTED IN PART and DENIED IN PART, Defendant's Motion to Strike (DE #91) is DENIED, Defendant's Motion to Strike (DE #93) is GRANTED IN PART and DENIED IN PART, and the “Stipulated Motion to Apply the Legal Standards Set Forth in Ortiz vs. Werner to the Parties' Pending Summary Judgment Pleadings and Evidence” (DE #98) is GRANTED. Count II of the First Amended Complaint is hereby DISMISSED.

         BACKGROUND

         Plaintiff Linda J. Davis (“Davis”) had been employed by the Hospital as a security officer for more than a decade when she took FMLA leave for knee surgery in 2013. When she returned to work, she was informed that her usual position in the Hospital had been assigned to another security officer. The Hospital allegedly assigned her to a different position that required more walking, as well as pushing and lifting. The increased walking allegedly caused Davis's knee to swell. Davis requested to be returned to her pre-FMLA leave position, which the Hospital denied.

         Davis filed this action against the Hospital, asserting that the Hospital violated the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Her First Amended Complaint (“Complaint”) alleges three causes of action: Count I - FMLA interference and retaliation; Count II - ADA failure to accommodate; and Count III - ADA retaliation. (DE #36.) The Hospital denies that it violated the FMLA or the ADA. The Hospital filed the instant motion for summary judgment and two motions to strike portions of the evidence Davis submitted in response to the Hospital's summary judgment motion. The motions have been fully briefed and are ripe for adjudication. The parties also jointly filed the “Stipulated Motion to Apply the Legal Standards Set Forth in Ortiz vs. Werner to the Parties' Pending Summary Judgment Pleadings and Evidence, ” which the Court will address below.

         DISCUSSION

         Motions to Strike

         The Hospital's first motion to strike urges the Court to strike portions of Davis's evidence based on her alleged failure to disclose them during discovery. (DE #93.) The Hospital had propounded an interrogatory to Davis seeking information regarding “every unfavorable or adverse employment action which affected the terms or conditions of [her] employment that [she] suffered or experienced due to [the Hospital's] action or conduct.” (DE #94-1 at 7.) Davis answered this interrogatory by identifying five allegedly adverse employment actions. (Id. at 8-9.) She confirmed that her answer to this interrogatory was complete during her deposition, and never supplemented this interrogatory answer. The Hospital contends that Davis's response brief to its motion for summary judgment raises new issues and evidence not previously disclosed by Davis.

         Federal Rule of Civil Procedure 26(e) provides that a party who has responded to an interrogatory must supplement or correct its response “in a timely manner if the party learns that in some material respect the . . . response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1)(A). If a party fails to provide information as required by Rule 26(e), “the party is not allowed to use that information . . . to supply evidence on a motion, . . . unless the failure was substantially justified or is harmless.” Fed R. Civ. P. 37(c)(1). “The exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless.” Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004) (citation omitted). The Court considers the following factors to determine whether the failure was substantially justified or harmless: “(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date.” Westefer v. Snyder, 422 F.3d 570, 584 n.21 (7th Cir. 2005) (citation omitted). Here, there is no indication that Davis acted willfully or in bad faith, and this litigation is not at the trial stage.[1] Thus, the Court's inquiry focuses on the prejudice to the Hospital.

         The Hospital argues that it relied upon Davis's interrogatory answer in preparing its summary judgment motion, and thus, is unduly prejudiced by the following evidence Davis disclosed in her response to that motion:

1. Davis's receipt of attendance points for absenteeism, and statements made by the Director of the Security Department, David Heard (“Heard”), regarding same.
2. Davis was allegedly told to hand over her computer pass code to a co-worker, then was nearly written up for handing over her pass code.
3. Heard's alleged admonishment to the Security Department and Davis that they are not to go to Human Resources for problems, and that Davis was almost written up for standing down on a call.
4. Heard allegedly prevented Davis from seeing her personnel file and his alleged comments regarding same.
5. Davis's allegations of being under “increased scrutiny” and being “disciplined for things she had been allowed to do, ” aside from the adverse employment actions that she disclosed prior to the close of discovery.

         Davis does not deny that she failed to supplement her interrogatory answer or disclose these actions during her deposition. However, the first of these actions was disclosed to the Hospital prior to the close of discovery. The Hospital's Statement of Material Facts in support of its motion for summary judgment acknowledges that Davis identified her February 17, 2014, Problem Solving Request Form “addressing the assessment of two attendance points for calling off of work” as a report, complaint or communication she made to the Hospital regarding occurrences of discrimination, retaliation or unlawful conduct. (DE #69-1 at 4 (citing DE #69-4 at 6-7 (Davis's interrog. answer no. 7).) Because Davis disclosed this action prior to the close of discovery, the Court DENIES the Hospital's motion to strike it.

         As to the four other actions, Davis attempts to justify their late disclosure by asserting that she first learned that these actions were material when she went through the summary judgment process with her current counsel. She insists that her failure to remember to disclose these actions during her deposition demonstrates that she is not an attorney and is not familiar with what constitutes an adverse employment action under Federal law. However, “[a] misunderstanding of the law does not equate to a substantial justification for failing to comply with the disclosure deadline.” Musser, 356 F.3d at 758. Davis argues that the Hospital is not prejudiced because it still employs nearly all of the individuals identified in the Davis Affidavit and has full access to people who can corroborate or deny her allegations. She suggests that the Hospital may ask her at trial about how she learned of the materiality of the newly disclosed actions, i.e., when her new counsel was preparing her response to its summary judgment motion.

         “Motions to strike are heavily disfavored, and usually only granted in circumstances where the contested evidence causes prejudice to the moving party.” The Cincinnati Ins. Co. v. Lennox Industs., Inc., No. 3:14-CV-1731, 2016 WL 495600, at *4 (N.D. Ind. Feb. 9, 2016) (citing Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695 (N.D. Ind. 2009), and Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303, 2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007)). The Court agrees that the Hospital would be unduly prejudiced by allowing Davis to rely on adverse employment actions first disclosed in response to the Hospital's summary judgment motion. Davis's late disclosure prevented the Hospital from having a full and fair opportunity to investigate or seek additional discovery relative to these actions. Even if Davis did not learn of the materiality of these alleged adverse employment actions until reaching the summary judgment stage of litigation, she unduly surprised the Hospital by simply presenting evidence of these actions along with her opposition to summary judgment. Davis's suggestion of allowing the Hospital to question Davis at trial about when she learned of the materiality of these events does nothing to cure the prejudice caused by the late disclosure. The Court therefore GRANTS the Hospital's motion to strike references to the four alleged adverse employment actions because they were not disclosed during discovery.

         The Hospital also maintains that it was prejudiced by the following allegations:

1. Davis allegedly was not reinstated to her post-FMLA leave position or an equivalent position upon her return from leave in February 2013.
2. The Hospital allegedly failed to make a reasonable accommodation as to Davis's purported disability.
3. The Hospital allegedly failed to engage in an interactive process with Davis to determine accommodations.

         As noted above, Rule 26(e) is violated where the information “has not otherwise been made known to the other parties during the discovery process or in writing.” These first two allegations form the basis of Davis's FMLA and ADA claims against the Hospital. The Complaint asserts that (1) the Hospital assigned Davis to a different position after her FMLA leave for knee surgery, (2) her new position required walking, pushing, and lifting, which caused her knee to swell, and (3) the Hospital denied her request for reassignment. (See DE #36 (Compl. ¶¶ 7, 10-14, 19, 27).) In its summary judgment briefing, the Hospital proffers evidence explaining the positions assigned to Davis and reasons therefore (see, e.g., DE #69-1 at 81-82, 87-89), as well as evidence of the Hospital's efforts to reasonably accommodate Davis (see, e.g., id. at 88 (Heard Aff. ¶67)). Thus, the Hospital was aware of these allegations before the close of discovery. The third allegation is an element of proof of Davis's failure to accommodate claim. See E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005) (“the ADA requires that employer and employee engage in an interactive process to determine a reasonable accommodation”). The Hospital should not be surprised that Davis made these three allegations in response to its motion for summary judgment. And while Davis has made these allegations, she must support them with evidence in order to survive summary judgment. See Gekas v. Vasiliades, 814 F.3d 890, 896 (7th Cir. 2016) (“summary judgment is the ‘put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events”). The Court finds that the Hospital was not unduly prejudiced by these three allegations, and therefore, DENIES the motion to strike them from Davis's response brief.

         The Hospital's second motion seeks to strike portions of the Affidavit of Linda J. Davis (“Davis Affidavit”) (DE #81-3), portions of Davis's Statement of Genuine Disputes (DE #81-2), and three exhibits to Davis's Statement of Genuine Disputes. (DE #91.) The Court will address the exhibits at issue first.

         The Hospital moves to strike Davis's Exhibits 3, 5 and 7. (DE #81-4, DE #81-6, DE #81-8.) Each of these exhibits is a “Memorandum to File” purportedly prepared by EEOC Investigator J.R. Andrews in connection with an onsite visit to the Hospital on March 19, 2014. Exhibit 4 describes Andrews's interview of Michael Graham (“Graham”), the Hospital's former Human Resources Director. Exhibit 5 describes Andrews's interview of Dave Slacian, the Hospital's Security Supervisor. Exhibit 7 describes Andrews's interview of Heard, the Hospital's Director of Security. None of the memoranda are signed or verified by Andrews.

         “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). Thus, the Rules “allow parties to oppose summary judgment with materials that would be inadmissible at trial so long as facts therein could later be presented in an admissible form.” Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014). The Hospital relies upon Stolarczyk ex rel. Estate of Stolarczyk v. Senator International Freight Forwarding, LLC, 376 F.Supp.2d 834 (N.D.Ill. 2005), in which the court held that an “EEOC charge and notes of the interview with [an interviewee] constitute inadmissible hearsay that is not properly considered in the summary judgment analysis, given the fact that [interviewee] would be unavailable as a witness at trial and was never deposed in this case.Id. at 838 (emphasis added). In that case, the interviewee had died before providing sworn testimony in a deposition or at trial. Here, in contrast, there is no indication that Andrews, Graham, Slacian, or Heard will be unavailable as witnesses at trial. Indeed, the Hospital proffers affidavits from Graham, Slacian, and Heard in support of its motion for summary judgment. (See DE #69-1 at 42-54, 61-65, 77-94.) As such, the facts set forth in Exhibits 3, 5, and 7 could later be presented in an admissible form. Therefore, the motion to strike Davis's exhibits is DENIED.

         The Hospital argues that portions of the Davis Affidavit and Statement of Genuine Disputes contain hearsay, are not based on personal knowledge, and are speculative. Davis responds that the Hospital has failed to analyze whether any of the statements were offered “to prove the truth of the matter asserted, ” as required to exclude them as hearsay. Fed.R.Evid. 801(c)(2). Regarding her alleged lack of personal knowledge, Davis argues that the statements at issue can be presented in an admissible form at trial, as allowed by Rule 56(c)(2), through the live testimony of Davis and other individuals identified in the Davis Affidavit. The Hospital disputes Davis's arguments.

         The Court has reviewed the Davis Affidavit and Statement of Genuine Disputes in their entirety. It is the function of the Court, with or without a motion to strike, to carefully review the evidence and to eliminate from consideration any argument, conclusions, and assertions unsupported by the documented evidence of record offered in support of the statement. Wajvoda v. Menard, Inc., No. 2:11-CV-393, 2015 WL 5773648, at *3 (N.D. Ind. Sept. 30, 2015); see, e.g., S.E.C. v. KPMG LLP, 412 F.Supp.2d 349, 392 (S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co., Inc., No. 04 C 5167, 2006 WL 980740, at *2 n.2 (N.D.Ill. Apr. 10, 2006). When ruling on the motion for summary judgment, the Court is capable of sifting through the evidence and considering it under the applicable federal rules and case law, giving each statement the credit to which it is due. Therefore, the Hospital's motion to strike portions of the Davis Affidavit and Statement of Genuine Disputes is DENIED as unnecessary.

         Stipulated ...


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