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Somers v. Express Scripts Holdings

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

April 11, 2017

BRIAN M. SOMERS, Plaintiff,
v.
EXPRESS SCRIPTS HOLDINGS, Defendant.

          ORDER

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Plaintiff Brian Somers worked at Express Scripts Holdings (“Express Scripts”) as an Electrical Maintenance Technician (“EMT”).[1] Beginning during the first month of his employment, in February 2012, Mr. Somers complained to his managers and supervisors that he was being harassed by a fellow male employee on the basis of his Jewish religion and his gender. Mr. Somers alleges that the harassment continued, despite repeated complaints to supervisors and the human resources department, through his resignation in March 2014. Shortly after his resignation, Mr. Somers filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). Mr. Somers claims that Express Scripts subjected him to a hostile work environment, constructively discharged him, and retaliated against him by failing to rehire him after his alleged harasser was terminated, all in violation Title VII.

         Presently pending before the Court are (1) a Motion for Summary Judgment filed by Express Scripts, [Filing No. 52]; and (2) Motions to Strike certain evidentiary submissions and statements of fact filed by both Express Scripts and Mr. Somers, [Filing No. 63; Filing No. 67]. All motions are now ripe for the Court's review. For the reasons that follow, the Court denies in part and grants in part Express Scripts' Motion for Summary Judgment and denies in part and grants in part the parties' Motions to Strike certain evidence.

         I. Motions to Strike Certain Evidence and Statements of Fact

         Before analyzing the substantive arguments Express Scripts raises in its Motion for Summary Judgment, the Court will consider both Express Scripts' and Mr. Somers' Motions to Strike certain evidence, as raised in their reply and surreply briefs. [Filing No. 63; Filing No. 67.] This is necessary because these motions relate to the scope of information that the Court could consider in deciding the Motion for Summary Judgment.[2]

         Express Scripts moves the Court to strike the entire affidavit sworn by Mr. Somers, [Filing No. 63 at 4], one paragraph in the affidavit sworn by Marshall Tucker, [Filing No. 63 at 6], and certain paragraphs of Mr. Somers' statement of material facts, [Filing No. 63 at 6-8]. Mr. Somers opposes these Motions to Strike. [Filing No. 67 at 2-3.] Mr. Somers moves to strike one piece of evidence submitted by Express Scripts, and he moves for the substitution of an affidavit whose original contained an inadvertent error. [Filing No. 67.]

         A. Challenged Affidavits

         Mr. Somers executed an affidavit on December 16, 2016 and submitted it with his response in opposition to Express Scripts' Motion for Summary Judgment. [Filing No. 58-1.] Express Scripts argues that this affidavit violates the Seventh Circuit's “sham affidavit rule, ” in that it directly contradicts Mr. Somers' deposition testimony. [Filing No. 63 at 4.] It is true that “courts do not countenance the use of so-called ‘sham affidavits, ' which contradict prior sworn testimony, to defeat summary judgment.” U.S. v. Funds in Amount of $3, 670, 403 F.3d 448, 466 (7th Cir. 2005). However, Express Scripts has identified no specific instance in which Mr. Somers' affidavit conflicts with his deposition testimony. Indeed, Express Scripts provides no citations at all to Mr. Somers' deposition in making this argument.[3] The Court will not scrutinize the 78 pages of deposition transcript submitted by Express Scripts with its Motion for Summary Judgment in order to determine whether the two documents contain conflicting testimony, and if so, whether the affidavit constitutes a “sham”. As the Seventh Circuit and this Court have cautioned on multiple occasions, “parties cannot leave it to this court to scour the record in search of factual or legal support for a claim.” Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 547 fn. 10 (7th Cir. 2002) (internal quotation and citation omitted). Express Scripts' Motion to Strike Mr. Somers' affidavit is DENIED.

         Express Scripts also objects to Paragraph 4 of Marshall Tucker's affidavit, [Filing No. 58-12], arguing that Mr. Tucker attests to a fact that is contradicted by other record evidence. [Filing No. 63 at 6.] Mr. Tucker states in his affidavit that Mr. Somers complained to him in November 2013 of harassment. But Mr. Tucker only worked for Express Scripts through January of 2013, as stated in a prior paragraph of his affidavit. Express Scripts argues that because Mr. Somers could not have complained to Mr. Tucker when Mr. Tucker no longer worked with Mr. Somers, that statement should be stricken. [Filing No. 63 at 6.]

         In his surreply, Mr. Somers responds that while the affidavit states “2013, ” it should read “2012, ” and that Mr. Tucker made an inadvertent error in stating that the relevant year was 2012. [Filing No. 67 at 4.] Mr. Somers argues that the mistake is evident from the face of the affidavit, in that Mr. Tucker clearly acknowledges that he worked as a maintenance supervisor only until January of 2013. [Filing No. 67 at 4.] Mr. Somers submitted an amended affidavit, which corrects the error, and in which Mr. Tucker states, “I am submitting this amended affidavit because I inadvertently stated in my original affidavit that ‘In November of 2013 Brian Somers complained to me… .' I meant to say Brian Somers complained to me in November 2012 when I was still working for Defendant.” [Filing No. 67-1 at 1.] Mr. Somers moves the Court to substitute this amended affidavit for the original one. [Filing No. 67 at 4.] The Court GRANTS Mr. Somers' Motion to Substitute the amended affidavit, and therefore DENIES Express Scripts' Motion to Strike as moot.

         B. Challenged Statements of Material Fact

         Express Scripts also raises multiple objections to statements in Mr. Somers' statement of material facts. The Court addresses each in turn.

         Express Scripts moves to strike the following statement: “Mr. Somers estimates [Mr. Nakabayashi] is about 6'4” 300 [pounds].” [Filing No. 57 at 5.] Express Scripts argues that this statement must be stricken, because Mr. Somers does not have personal knowledge as to Mr. Nakabayashi's height or weight. [Filing No. 63 at 6.] Federal Rule of Civil Procedure 56(c)(4) requires that affidavits “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.” Fed.R.Civ.P. 56(c)(4). Mr. Somers' deposition testimony and affidavit established that he worked with Mr. Nakabayashi, and was therefore in a position to make observations as to Mr. Nakabayashi's height and weight. Express Scripts has not suggested that Mr. Somers' estimate is not “rationally based on the perception of the witness, ” as required by Fed.R.Evid. 701(a). And Express Scripts has offered no reason to conclude that Mr. Somers' estimate was not reasonable or was not “grounded in observation or other first-hand personal experience, ” as opposed to “flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.” Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003). Express Scripts' Motion to Strike this statement is therefore DENIED.

         Express Scripts also objects to the statement that “Mr. Somers suffered extreme stress and mental anxiety to the point it resulted in depression and marital difficulties.” [Filing No. 57 at 5.] Express Scripts argues that (1) this is not an issue for summary judgment; and (2) medical records from Mr. Somers' primary care physician do not state that his stress was related to his job, but instead state that Mr. Somers suffered “significant anxiety due to recent stressors, death in the family.” [Filing No. 63 at 6.] Express Scripts argues that there is “no evidence of extreme stress and mental anxiety.” [Filing No. 63 at 6-7.] First, the effects of workplace stress on Mr. Somers could be relevant, to the extent that they tend to prove the existence or absence of a hostile work environment. Second, Mr. Somers testified about his stress and anxiety during his deposition, so he has provided some evidence in support of this allegation. [Filing No. 58-2 at 33-34.] And third, for the reasons described below, the Court will not consider the medical records proffered by Express Scripts. Express Scripts' Motion to Strike this statement is therefore DENIED.

         Express Scripts objects to the statement that “Nakabayashi was not disciplined as a result of the complaint made by Mr. Somers to Human Resources in November 2012.” [Filing No. 57 at 8.] Express Scripts argues that Mr. Somers does not have personal knowledge as to whether Mr. Nakabayashi was disciplined. [Filing No. 63 at 7.] The material cited to by Mr. Somers in support of his statement does not support the conclusion that Mr. Somers had personal knowledge regarding whether Mr. Nakabayashi was disciplined. Express Scripts' Motion to Strike this statement is GRANTED.

         Express Scripts objects to the statement that “Dave Miller was not given a written warning.” [Filing No. 57 at 12.] It argues that this statement directly contradicts the preceding allegation in the statement of facts, and that Mr. Miller did in fact receive a written warning. [Filing No. 63 at 7.] First, the preceding paragraph states that it was recommended that Mr. Miller be given a written warning-it did not address whether Mr. Miller actually received a warning. [Filing No. 57 at 11.] It is of course possible that no one followed or carried out the recommendation, and the Court cannot conclude that these statements are contradictory. Second, Mr. Somers cites the deposition testimony of Mr. Miller as supporting the allegation that Mr. Miller was not given a written warning. Mr. Miller's cited deposition testimony is as follows: “Q: Did you receive a written warning? A: No, I did not.” [Filing No. 58-10 at 10.] Express Scripts' Motion to Strike this statement is DENIED.

         Express Scripts objects to the statement that “Mr. Somers did report his concerns and Loren Murphy's response to Tracie Oden, Human Resource Director; VaShound Taylor, Director of Engineering; Jerry Barksdale, Senior Manager of Engineering and Maintenance; Dave Miller, Senior Manager of Engineering; and an individual in Defendant's corporate office in St. Louis.” [Filing No. 57 at 13.] Express Scripts objects on the basis that the incident described within this statement is time-barred by the statute of limitations applicable to Title VII claims. [Filing No. 63 at 7.] Express Scripts also argues that these statements are based on Mr. Somers' inadmissible affidavit.

         As described in Section II.C.1 below, the Court concludes that the incident referenced by Mr. Somers is not barred by the statute of limitations. However, even if it were, Express Scripts would still not be entitled to strike the challenged statement. As the statute of limitations analysis makes clear, in order to determine whether a particular incident falls within the “continuing violation” theory of a hostile work environment claim, the Court will often need to examine incidents alleged to fall outside of the limitations period. Therefore, evidence regarding such incidents-even if the Court later determines them to be barred by the statute of limitations-are in the first instance properly before the Court. Moreover, for the reasons described above, Mr. Somers' affidavit is admissible, and therefore reliance upon it is proper. Express Scripts' Motion to Strike this statement is DENIED.

         Express Scripts objects to the statement that “[t]here was no investigation of Mr. Somers' November 2012 complaint to Human Resources and VaShound Taylor.” [Filing No. 57 at 13.] Express Scripts contends that Mr. Somers' own testimony establishes that an investigation did occur. [Filing No. 63 at 7.] After reviewing the cited materials, the parties appear to be disputing what constitutes an “investigation, ” or whether Express Scripts' activities can be properly classified as investigatory. The same is true regarding the statements challenged in Paragraph 71. This involves a genuine dispute of material fact, so Express Scripts' Motion to Strike these statements is DENIED.

         Express Scripts appears to take issue with the word “first investigation, ” as used in Paragraph 76 of Mr. Somers' objections to Express Scripts' statement of material facts. It is not clear from Express Scripts' brief precisely what language it asks the Court to strike, and upon what basis. Express Scripts' Motion to Strike as to this statement is DENIED.

         Express Scripts also objects to the statement that “Mr. Somers did not tell Mrs. Oden that there had not been any further issues with Nakabayashi as of April 2013.” [Filing No. 57 at 17.] Express Scripts argues that this statement, which cites Mr. Somers' affidavit, conflicts with his deposition testimony and therefore must be stricken. Express Scripts cites to “Somers Dep. at 67, 101-103, Ex. 9” as including the relevant deposition testimony. The Court reviewed the portion of Mr. Somers' deposition transcript submitted by Express Scripts, and the cited pages contain no reference to Ms. Oden. The Court will look no further to attempt to locate the deposition testimony to which Express Scripts refers. The Motion to Strike this statement is DENIED.

         Express Scripts objects to Mr. Somers' statement that “[w]hen Mr. Somers was initially hired he did not complete an application until after he was hired.” [Filing No. 57 at 19.] Mr. Somers included this statement in his objection to Express Scripts' statement of fact that “[i]n any event, Plaintiff never submitted an application to become re-employed at Express Scripts. Nor did he ever speak to anyone from Express Scripts' Human Resources Department about becoming re-employed.” [Filing No. 57 at 19.] Express Scripts argues that it is undisputed that Mr. Somers never spoke to anyone from Express Scripts' human resources department about becoming re-employed. [Filing No. 63 at 8.] Assuming that this is the basis for Express Scripts' objection to the challenged statement, what it actually objects to is the inference that this statement invites- not the statement itself. The inference invited is that Mr. Somers was not required to submit an application, as evidenced by Express Scripts' prior hiring practice. While Express Scripts may argue that this inference is incorrect, a motion to strike an otherwise admissible statement is not the proper method by which to raise that argument. Express Scripts also argues that the statement should be stricken because it cites to the “sham” affidavit. [Filing No. 63 at 8.] But, again, Express Scripts does not cite to any contradictory deposition testimony. The Motion to Strike this statement is DENIED.

         Express Scripts objects to statements in Paragraphs 2 and 82 of Mr. Somers' statement of material facts, in which he asserts that he did not voluntarily resign, but was forced to resign due to continued harassment. [Filing No. 63 at 8.] Express Scripts contends that these statements conflict with Mr. Somers' prior testimony, in that he “admit[ted] he quit his job with Express Scripts, and had arranged for another position.” [Filing No. 63 at 8.] However, Mr. Somers' deposition testimony and this statement are not inherently inconsistent: he both could have been compelled to resign due to continued harassment (which he may refer to as quitting) and have arranged for another job. Express Scripts also argues that as the statement is supported by Mr. Somers' “inadmissible affidavit, ” it must be stricken. As described above, this argument is unavailing. Express Scripts' Motion to Strike this statement is DENIED.

         C. Challenged Medical Records

         Mr. Somers moves to strike the medical records submitted by Express Scripts, arguing that (1) the medical records have not been properly authenticated and are therefore inadmissible hearsay; and (2) that the medical records are irrelevant, and therefore inadmissible. [Filing No. 67.] Express Scripts submits the medical records in order to refute Mr. Somers' contention that he suffered severe stress and anxiety as a result of his working conditions. However, Mr. Somers points out that the medical records cited by Express Scripts relate to a visit with Mr. Somers' primary care physician that occurred in February 2016. Mr. Somers left Express Scripts' employ in March 2014, almost two years before the medical visit at issue. The Court agrees with Mr. Somers that the medical records submitted by Express Scripts are not relevant to the issues before the Court on this motion for summary judgment which exclusively challenges liability, and the Court GRANTS Mr. Somers' Motion to Strike this evidence for purposes of this ruling.

         II. Motion for Summary Judgment A. Legal Standard

         A 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).

         In 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).

         On 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).

         B. Background

         The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to Plaintiffs as the non-moving parties, drawing all reasonable inferences in their favor. See, Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

         Mr. Somers is a Jewish man. [Filing No. 58-2 at 4.] Mr. Somers began working for Express Scripts in February 2012 as an EMT. [Filing No. 58-2 at 7.] His job involved servicing and repairing the automated machines that fill and prepare mail-order prescriptions. [Filing No. 58-2 at 7-8.] While Mr. Somers worked for Express Scripts, his supervisory chain of command was as follows, listed from greatest to least supervisory authority: Senior Director, John Sands; Director, VaShound Taylor; Senior Managers, Jerry Barksdale (May 2012 - April 2013) and Dave Miller (August 2013 - March 2014); Day Shift Maintenance Supervisor, Loren Murphy; and Second Shift Maintenance Supervisors, Marshall Tucker (February 2012 - January 2013) and Curtis Whitcomb (February 2013 - March 2014). [Filing No. 58-1 at 2.] Tracie Oden was Express Scripts' director of human resources at the Whitestown location from the time Mr. Somers was hired through March 2013. [Filing No. 58-1 at 2.]

         Express Scripts' employee handbook describes the following “Open Door Policy”:

[f]ree and open communication and dialogue are critical to achieving and maintaining a positive work environment. If you have a concern, we encourage you to discuss it with your immediate supervisor. While we fully expect that most issues should be able to be resolved with your supervisor, if you do not feel comfortable discussing the issue with your immediate supervisor or discussions with your supervisor have not ...

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