United States District Court, S.D. Indiana, Indianapolis Division
BRIAN M. SOMERS, Plaintiff,
EXPRESS SCRIPTS HOLDINGS, Defendant.
JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT COURT
Brian Somers worked at Express Scripts Holdings
(“Express Scripts”) as an Electrical
(“EMT”). 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.
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.
Motions to Strike Certain Evidence and Statements of Fact
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.
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.]
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. 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.
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.]
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
Challenged Statements of Material Fact
Scripts also raises multiple objections to statements in Mr.
Somers' statement of material facts. The Court addresses
each in turn.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
Challenged Medical Records
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
Motion for Summary Judgment A. Legal Standard
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.
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).
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).
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
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