Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ripberger v. Corizon Inc.

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

March 27, 2017

DIANE M RIPBERGER, Plaintiff,
v.
CORIZON INC., Defendant.

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Tim A. Baker United States Magistrate Judge

         I. Introduction

         Plaintiff Diane M. Ripberger applied for an open position with Defendant Corizon, Inc., but Corizon never contacted her for an interview. Ripberger believes the reason she was passed over for this position is a prior lawsuit she filed against Corizon. Corizon moves for summary judgment on all of Ripberger's claims, but Ripberger points to sufficient evidence to put her retaliation claim before a jury, including troubling emails suggesting Ripberger's prior lawsuit was the real reason Corizon never interviewed her.

         II. Preliminary issues

         The Court first must address three preliminary issues: (1) whether to allow Ripberger's surreply; (2) whether Ripberger's statement of material facts in dispute is sufficient; and (3) whether Ripberger exhausted her administrative remedies.

         A. Ripberger's Surreply

         The briefing on Corizon's summary judgment motion drew a surreply from Ripberger, to which Corizon objected. Corizon asks the Court to disregard all or part of Ripberger's surreply. In limited situations, surreplies are allowed as a matter of right with summary judgment motions.

         Local Rule 56-1(d) states:

A party opposing a summary judgment motion may file a surreply brief only if the movant cites new evidence in the reply or objects to the admissibility of the evidence cited in the response. The surreply must be filed within 7 days after the movant serves the reply and must be limited to the new evidence and objections.

         “District courts are entitled to ‘considerable discretion in interpreting and applying their local rules.'” Dr. Robert L. Meinders, D.C., Ltd. v. UnitedHealthcare, Inc., 800 F.3d 853, 858 (7th Cir. 2015) (quoting Cuevas v. United States, 317 F.3d 751, 752 (7th Cir. 2003)).

         Ripberger had the right to file a surreply because Corizon's reply brief objects to the admissibility of her evidence and presents a new argument. Corizon's reply brief argues for the first time that Ripberger's statement of material facts in dispute is deficient under Rule 56-1(f). Ripberger's surreply responds to Corizon's argument that the Court should admit Corizon's statement of material facts over Ripberger's. Thus, a surreply is appropriate.

         Additionally, Ripberger points out that Corizon's reply brief expressly criticizes the evidence cited in her response and broadly paints her evidence as inadmissible. For example, Corizon's reply brief asserts:

• “In fact, most of Ripberger's ‘evidence' is not admissible evidence at all, but her own speculation, unsupported argument, and mischaracterization of the record.” [Filing No. 58, at ECF p. 1.]
• “Ripberger's conclusory attacks on the credibility of Corizon and its employees are unsupported by any admissible evidence whatsoever, entirely legally inappropriate during summary judgment analysis under Seventh Circuit law, and cannot defeat summary judgment.” [Id. at 1-2.]
• “Ripberger's support for the ‘disputed' statements of fact is nothing more than … irrelevant and inadmissible statements. Ripberger's approach wholly fails to … ‘specifically controvert[]' the moving party's statement of facts with admissible evidence.” [Id. at 3.]
• “Ripberger either overtly admits, or fails to offer any admissible evidence in her Opposition or supporting materials to rebut, the key facts.” [Id. at 4.]
• “But she offers no admissible evidence to back up this allegation.” [Id. at 9.]

         Corizon contends it “did not object to the admissibility of evidence, ” but points to the absence of evidence. [Filing No. 60, at ECF p. 2.] However, the examples above demonstrate Corizon attacked the admissibility of Ripberger's evidence. If Corizon only intended to point to an absence of evidence, it failed to make that distinction clear.

         Overall, Ripberger limits her surreply to responding to Corizon's new argument and each of evidentiary objections. Ripberger organizes her surreply by copying the headings from Corizon's reply brief, identifying Corizon's objections, and presenting a response. In this way, the surreply is limited to Corizon's objections. To some extent, the surreply repeats parts of Ripberger's arguments, but the main focus of the surreply is the evidence at issue. This is a surreply anticipated by the local rules and, therefore, Ripberger's surreply is largely proper.

         Nevertheless, three portions of Ripberger's surreply are unwarranted and will be ignored.

         1. In section D, subsection 2, Ripberger begins by stating, “Corizon does not clearly object to Ripberger's evidence in this section.” [Filing No. 59, at ECF p. 7.] As Corizon points out, this section does nothing more than rehash one of Ripberger's prior arguments. Thus, the Court disregards the section.

         2. In section E, subsection 2, Ripberger states, “Corizon raises the new argument that Dale Fleming, the Supervisor of the Addition Recovery Specialists at the Pendleton facility, and Vicki Poore, the Health Services Administrator at the Pendleton facility, were “non-decisionmakers.” [Filing No. 59, at ECF p. 7.] This is more of an allegation than an argument, but regardless, it is not new. Corizon's opening brief states, “Schoenradt made this decision and was not aware of any previous communication between Health Services Administrator Vicki Poore and local supervisor Dale Fleming about Ms. Ripberger's application, nor did any such communication influence his decision.” [Filing No. 35, at ECF p. 7.] Thus, this is not a new argument in Corizon's reply brief, and the Court disregards this portion of Ripberger's surreply.

         3. In the same subsection, Ripberger states, “Corizon makes the new argument that it did not raise the gate lock defense earlier because Schoenradt was not sure if he learned about it before ‘making the decision not to interview Ripberger.'” [Filing No. 59, at ECF p. 16.] This is not a new argument either. Ripberger brings this up in her response brief, discussing Schoenradt's deposition testimony. Thus, Corizon's reply to this part of Ripberger's response brief is not a new argument, so the Court disregards this portion of Ripberger's surreply as well.

         As such, the Court overrules Corizon's objection [Filing No. 60] in part and sustains it in part. The Court disregards the three portions of Ripberger's surreply described above. Otherwise, the surreply is properly before the Court.

         B. Sufficiency of Ripberger's fact section

         Corizon also argues Ripberger failed to comply with Local Rule 56-1's requirements regarding how she sets forth material facts in dispute. Corizon argues the Court should admit “the bulk of the facts submitted by Corizon” as true because Ripberger “wholly fails to comply with the requirement” of controverting Corizon's statement of facts with admissible evidence. [Filing No. 58, at ECF p. 3.] The Court will not guess what constitutes the “bulk” of Corizon's seven-page statement of undisputed material facts, which Corizon believes should be admitted pursuant to Local Rule 56-1(f). Nor will the Court guess why Corizon believes Ripberger's 25-page statement of disputed material facts is insufficient.

         Notably, however, Ripberger does not dispute six facts, that: (1) “On August 24, 2012, the Indiana Department of Correction (IDOC) fired Ripberger and issued a ‘gate closure' or gate lock order against her.” (2) “IDOC's gate lock order against Ripberger still remains in effect.” (3) “Ripberger believes that she has applied for employment with Corizon as an Addiction Recovery Specialist ‘several' times since 2010, always online, but does not know how many or when except for November 29, 2013.”[1] (4) “Corizon Talent Network records reflect that Ripberger first registered on February 10, 2013, and further reflect that the only application submitted from her date of registration to present is the one she submitted through CareerBuilder on November 29, 2013.” (5) “The November 29, 2013 application submitted by Ripberger contained five questions, the first of which was ‘This position pays between $24, 358 and $29, 900 per year, depending on years of experience, does that hold your interest?' and (6) “Ripberger answered “no” to the salary question on the application.” [Filing No. 58, at ECF p. 4.] Thus, the Court accepts these facts as true for summary judgment purposes.

         Seeking to have the Court accept a more sweeping view of its facts, Corizon points to U.S., ex rel. Abner v. Jewish Hosp. Health Care Servs., Inc., No. 4:05-CV-106-RLY-WGH, 2010 WL 1381816, at *2 (S.D. Ind. Mar. 31, 2010). In Abner, the Court admitted the movant's statement of facts because the non-moving party failed to comply with the requirements of Local Rule 56-1. However, the case at hand is easily distinguished from Abner, in which the non-movant only provided three sentences of material facts in dispute. Id.Ripberger devotes 25 pages to the facts she disputes. What is more, Abner did not simply accept the movant's facts as true, but first determined if the parties' arguments revealed an obvious dispute. I ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.