United States District Court, S.D. Indiana, Indianapolis Division
MAGNTTS-STINSON, CHIEF JUDGE
Haile Abebe worked at Eli Lilly and Company
(“Lilly”) for seventeen years as a
scientist, holding various positions. In March 2010, Lilly
outsourced certain services related to clinical drug trials
to Defendant Thermo Fisher Scientific, Inc.
(“Thermo Fisher”). Subsequently, Thermo
Fisher hired Mr. Abebe, along with several other Lilly
employees. While a Thermo Fisher employee, Mr. Abebe applied
for numerous positions within Thermo Fisher, complained
internally about discriminatory treatment after not being
chosen for the positions, and obtained several right to sue
letters from the Equal Employment Opportunity Commission
(“EEOC”) along the way. Mr. Abebe
remained a Thermo Fisher employee until all positions within
his department were reab-sorbed by Lilly and eliminated by
Thermo Fisher in early 2015. He rejected a severance package
from Thermo Fisher that required signing a release, and
initiated this lawsuit in February 2015, asserting claims for
violations of Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act
(“ADEA”), and 42 U.S.C. § 1981.
Specifically, Mr. Abebe claims that Thermo Fisher
discriminated against him on the basis of his gender, age,
race, and national origin, and that it retaliated against him
for complaining about the discrimination.
pending before the Court are: (1) a Motion for Summary
Judgment filed by Thermo Fisher, [Filing No. 79];
and (2) a Motion to Strike Plaintiff's Surreply in
Opposition to Defendant's Motion for Summary Judgment,
[Filing No. 100]. Both motions are now ripe for the
Motion to Strike Mr. Abebe's Surreply
analyzing the substantive arguments Thermo Fisher raises in
its Motion for Summary Judgment, the Court will consider
Thermo Fisher's Motion to Strike Surreply in Opposition
to Defendant's Motion for Summary Judgment. [Filing
No. 100.] This is necessary because the motion relates
to the scope of information that the Court could consider in
deciding the Motion for Summary Judgment.
Abebe filed a twenty-one page Surreply in Opposition to
Defendant's Motion for Summary Judgment on December 8,
2016. [Filing No. 99.] Thermo Fisher moved to strike
the surre-ply, arguing that the surreply was untimely, and
that if it is permitted it should be limited to addressing
the only new evidence Thermo Fisher submitted with its reply
brief - the Second Declaration of Virginia Campbell.
[Filing No. 100 at 2-3.]
response, Mr. Abebe argues that his surreply was not untimely
because Thermo Fisher served the reply brief when the old
version of Federal Rule of Civil Procedure 6(d) -
providing for three extra days for responding to an
electronic filing - was in effect. [Filing No. 101 at
5.] Mr. Abebe also argues that Thermo Fisher
“objected” to his evidence by arguing that it
constituted offering a personal opinion, so he was entitled
to address that evidence. [Filing No. 101 at 2.] Mr.
Abebe contends that Thermo Fisher makes new arguments in its
reply, and that he should be able to address them based on
“due process and fundamental fairness.”
[Filing No. 101 at 3.]
reply, Thermo Fisher argues that it did not object to Mr.
Abebe's evidence in its reply brief, but merely argued
that his evidence was not sufficient to overcome summary
judgment. [Filing No. 102 at 2.] Further, it asserts
that the version of Federal Rule 6(d) in effect when the
surreply was filed governs the timing of the surreply and,
consequently, it was untimely. [Filing No. 102 at
timeliness, the Court notes that Thermo Fisher filed its
reply brief on November 28, 2016, when the old version of
Rule 6(d) was in effect. [Filing No. 98.] The Court
finds it reasonable to apply the deadline set forth in the
old version of Rule 6(d), since that version governed on that
date. See Fed. R. Civ. P. 6(d) (version of
the rule in effect before December 1, 2016 providing that
“[w]hen a party may or must act within a specified time
after service and service is made under Rule 5(b)(2)(C), (D),
(E), or (F), 3 days are added after the period would
otherwise expire under Rule 6(a)”). Accordingly, Mr.
Abebe timely filed his surreply on December 8, 2016 - ten
days after service of Thermo Fisher's reply brief.
the scope of the surreply, Local Rule 56-1(d) permits the
filing of a surreply “only if the movant cites new
evidence in the reply or objects to the admissibility of the
evidence cited in the response.” Thermo Fisher concedes
that it submitted, and cited to, the Second Declaration of
Virginia Campbell for the first time in its reply brief. Mr.
Abebe is permitted to address that declaration in a surreply.
The Court rejects Mr. Abebe's argument, however, that
Thermo Fisher generally objected to the admissibility of all
of his evidence as expressing his personal opinion in its
reply, so he is permitted to discuss that evidence again in
his surreply. Thermo Fisher does not object to the
admissibility of Mr. Abebe's evidence, but argued instead
that the evidence is not sufficient because it merely
constitutes Mr. Abebe's opinion. Admissibility and
sufficiency are distinctly different concepts, and Mr. Abebe
cannot address the latter in a surreply.
Court GRANTS IN PART Thermo Fisher's Motion to Strike,
[Filing No. 100], to the extent that it strikes the
portions of Mr. Abebe's surreply that do not relate to
the Second Declara- tion of Virginia Campbell, but DENIES IN
PART the Motion to Strike to the extent that it declines to
strike the portions of the surreply that relate to the Second
Declaration of Virginia Campbell. The Court notes that only
three sentences of Mr. Abebe's 21-page surreply address
that issue. [See Filing No. 99 at 4 (Mr.
Abebe addressing Lillian Knarr's resume, which was
submitted with the Second Declaration of Virginia
Motion for Summary Judgment
Standard of Review
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(a).
As the current version of Rule 56 makes clear, whether a
party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A).
A party can also support a fact by showing that the materials
cited do not establish the absence or presence of a genuine
dispute or that the adverse party cannot produce admissible
evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B).
Affidavits or declarations must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant is competent to testify
on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly
support a fact in opposition to a movant's factual
assertion can result in the movant's fact being
considered undisputed, and potentially in the grant of
summary judgment. Fed. R. Civ. P. 56(e).
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Hampton v. Ford Motor
Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words,
while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not outcome
determinative. Harper v. Vigilant Ins. Co., 433 F.3d
521, 525 (7th Cir. 2005). Fact disputes that are irrelevant
to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Johnson v. Cambridge Indus.,
325 F.3d 892, 901 (7th Cir. 2003). The moving party is
entitled to summary judgment if no reasonable fact-finder
could return a verdict for the non-moving party. Nelson
v. Miller, 570 F.3d 868, 875 (7th Cir. 2009).
The Court views the record in the light most favorable to the
non-moving party and draws all reasonable inferences in that
party's favor. Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence
or make credibility determinations on summary judgment
because those tasks are left to the fact-finder.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011). The Court need only consider the cited
materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit
Court of Appeals has “repeatedly assured the district
courts that they are not required to scour every inch of the
record for evidence that is potentially relevant to the
summary judgment motion before them, ”
Johnson, 325 F.3d at 898. Any doubt as to the
existence of a genuine issue for trial is resolved against
the moving party. Ponsetti v. GE Pension Plan, 614
F.3d 684, 691 (7th Cir. 2010).
Statement of Facts
following statement of facts was evaluated pursuant to the
standards set forth above, that is, they are either
undisputed or presented in the light most favorable to Mr.
Mr. Abebe's Background and Employment at Lilly
Abebe is a black male of Ethiopian descent, who was born in
1953. [Filing No. 57 at 2; Filing No. 93-4 at
2.] He has a Bachelor's Degree in Agriculture, a
Master's Degree in Soil Microbial Ecology, a Master's
Degree in Microbiology, and has completed course work toward
a PhD in Microbiology. [Filing No. 93-4 at 9-10.]
Abebe began working for Lilly in 1995 as a Technical Services
Representative, and received several promotions within Lilly
over the next several years, culminating with his promotion
to a Manager of Clinical Trial Support Operations in August
2009. [Filing No. 93-10 at 6-15.] During his
employment at Lilly, Mr. Abebe received good performance
evaluations. [Filing No. 93-9.]
Mr. Abebe's Employment At Thermo Fisher
Initial Position With Thermo Fisher
March 2010, Lilly outsourced its clinical trial drug
manufacturing and packaging, known as New Drug Product Trial
Support (“NDPTS”), to Thermo Fisher,
which had provided those services on-site at Lilly.
[Filing No. 93-10 at 1.] Thermo Fisher contacted
Lilly employees whose positions were being eliminated due to
the outsourcing, inviting them to submit their resumes for
consideration for a position at Thermo Fisher. [Filing
No. 93-10 at 1.] Mr. Abebe completed an application for
employment at Thermo Fisher, stating that he was seeking a
manager position. [Filing No. 93-10 at 2-5.]
April 29, 2010, Thermo Fisher offered Mr. Abebe the position
of Senior NDP Trial Support Associate, at an annual salary of
$92, 000. [Filing No. 93-10 at 16-17.] Michael
McNear, then General Manager of Thermo Fisher's
Indianapolis facility, made the decision to hire Mr. Abebe.
[Filing No. 79-5 at 1.] Mr. Abebe had a long tenure
with Lilly, and Thermo Fisher offered him a salary that was
significantly higher than other employees in similar
positions with Thermo Fisher because Thermo Fisher wanted to
provide him with a salary that was comparable to what he had
earned at Lilly. [Filing No. 79-2 at 2.] Thermo
Fisher also gave Mr. Abebe the title of Senior NDPTS
Associate, although his day-to-day job duties were the same
as the other NDPTS Associates. [Filing No. 79-2 at
2.] Although Mr. Abebe's position at Lilly as
Clinical Trial Support Manager was a supervisory role on
Lilly's NDPTS team, Thermo Fisher did not have a
comparable position in its NDPTS group. [Filing No. 79-2
at 1-2.] Mr. Abebe accepted Thermo Fisher's
employment offer on May 5, 2010. [Filing No. 93-10 at
17.] He was fifty-six years old at the time. [Filing
No. 93-4 at 2.] Mr. Abebe began working in his new
position at Thermo Fisher in July 2010. [Filing No. 93-4
April 2011, Mr. Abebe's salary increased to $93, 389.20.
[Filing No. 79-2 at 2.]
Client Services Manager and NDPTS Team Leader
September 2011, Thermo Fisher posted a position for Client
Services Manager and Mr. Abebe applied. [Filing No. 79-2
at 2.] Thermo Fisher ultimately selected Mishel Dyas for
the Client Services Manager position. [Filing No. 79-3 at
2.] Also in September 2011, Mr. Abebe applied for an
NDPTS Team Leader position. [Filing No. 79-2 at 2.]
Thermo Fisher selected Thomas Turner for the position.
[Filing No. 79-2 at 3.] Ms. Dyas was offered a
salary of $79, 279 for the Client Services Manager position,
and Mr. Turner was offered a salary of $69, 229 for the NDPTS
Team Leader position - both lower than Mr. Abebe's
then-current salary of $93, 389.20. [Filing No. 79-2 at
Mr. Abebe Expresses Concerns About the Hiring
October 2011, Mr. Abebe contacted Virginia Campbell, Human
Resources Generalist at Thermo Fisher, to express his
concerns regarding the hiring process for the Client Services
Manager and NDPTS Team Leader positions, and to suggest that
he was not selected for either position for discriminatory
reasons. [Filing No. 79-2 at 3.] Ms. Campbell and
Steve Yoder, General Manager of Thermo Fisher, met with Mr.
Abebe to discuss his concerns, and Mr. Abebe continued to
voice his concerns after the meeting. [Filing No. 79-2 at
in early 2012 Thermo Fisher assigned Kimberly Bardellini,
Human Resources Manager, to investigate Mr. Abebe's
complaints. [Filing No. 79-2 at 3.] Ms. Bardellini
reviewed numerous documents including the job descriptions
for the positions, written statements, email correspondence,
interview notes, Mr. Abebe's application and resume, and
the applications and resumes of the other applicants.
[Filing No. 79-4 at 1-2.] Mr. Bardellini also
interviewed Mr. Abebe, Mr. Yoder, Ms. Campbell, Ms. Dyas, and
Mr. Turner. [Filing No. 79-4 at 1-2.] Ultimately,
she did not find any evidence to substantiate Mr. Abebe's
complaints or to suggest that he was not selected for the
positions due to discriminatory reasons. [Filing No. 79-4
Clinical Supply Chain Manager Positions
January 2012, Mr. Abebe applied for a Clinical Supply Chain
Manager position, for which there were two openings.
[Filing No. 79-2 at 3.] Thermo Fisher selected
Lindsay Simmons and Susie Haros for those positions.
[Filing No. 79-5 at 1.] Thermo Fisher offered Ms.
Simmons a salary of $77, 625, and offered Ms. Haros a salary
of $80, 000 - both lower than Mr. Abebe's then-current
salary of $93, 389.20. [Filing No. 79-2 at 2-3.]
Mr. Abebe's Mistake and Leave of Absence
the key functions of the NDPTS group is to “allocate[e]
drugs appropriately for clinical drug trials.”
[Filing No. 79-1 at 2.] In early March 2012, Mr.
Abebe failed to properly reconcile how much of a particular
drug was available, which resulted in Thermo Fisher being
unable to fill an order for the drug from Lilly. [Filing
No. 79-6 at 2-3.] In March 2012, after the incident, Mr.
Abebe requested a medical leave of absence. [Filing No.
79-2 at 4.] He remained on leave until May 14, 2012,
when he returned to his Senior NDPTS Association position.
[Filing No. 79-2 at 4.] When he returned from his
leave of absence, Mr. Abebe felt that his co-workers treated
him differently. [See Filing No. 93-22.]
Mr. Abebe's First EEOC Charge
in April 2012, Mr. Abebe filed a charge of discrimination
with the EEOC relating to Thermo Fisher's decision not to
hire him for the positions he had applied for from September
2011 to March 2012. [Filing No. 79-2 at 4;
Filing No. 84 at 20.] Specifically, Mr. Abebe stated
that the alleged discrimination took place from September 29,
2011 to March 12, 2012, and summarized his claim as follows:
I am a 58 year old black male of Ethiopian descent with a
disability, who started working for the Company in July,
2010. My present position with the Company is that of Senior
NDPTS Associate. Over the past year, I have applied for
several promotional positions with the organization. I have
not, however, been selected for any of the positions for
which I have applied. All of the successful candidates have
had far less managerial, technical, pharmaceutical and
scientific experience; far less qualified than me in the
position for which I applied. The successful candidates have
also been younger, white, mostly female, American and
non-disabled. I questioned management about my non-selection.
I further requested of management an investigation into the
suspect promotional practice. I went so far as to put
management on notice that I believed the selections were made
on discriminatory bases. I was informed the Company found no
discrimination. After complaining, I was placed on a bogus
and false coaching plan that prevented me from being
considered for other opportunities within the Company. I was
further informed by Charles Pinto, Executive Director of
Human Resources, that I had three options regarding my future
with the organization - I could either stay, relocate to
another state or leave.
I believe I have been discriminated against by not being
promoted because of my age, gender, race, national origin and
disability. I further believe I have been retaliated
against because I complained of the discriminatory activity
to management, all in violation of Title VII of the Civil
Rights Act of 1964, as amended, the Age Discrimination in
Employment Act of 1967, as amended, and the Americans with
Disabilities Act of 1990, as amended.
[Filing No. 84 at 20.]
EEOC dismissed Mr. Abebe's charge, and issued a Notice of
Right to Sue (“Right to Sue Letter”) on
December 6, 2012. [Filing No. 79-2 at 4; Filing
No. 79-2 at 17.] Mr. Abebe did not file a lawsuit
relating to the three positions that were the subject of his
April 2012 EEOC Charge within the 90-day deadline provided in
the December 6, 2012 Right to Sue Letter.
The Client Services Manager Position ...