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Haynes v. Indiana University

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

July 31, 2017

RAY K. HAYNES Ph.D., Plaintiff,


          LARRY J. McKINNEY, United States District Court Judge

         This matter is before the Court on Plaintiff Dr. Ray Haynes' Motion for Leave to File Surreply in Opposition to Defendants' Motion for Summary Judgment (“Motion for Leave”). Dkt. 130. Dr. Haynes asserts that Defendants raised new arguments, evidence, and objections in their reply brief. Dkt. 94. Dr. Haynes has also submitted a Motion to Supplement Plaintiff's Designation of Evidence in Opposition to Defendant's [sic] Motion for Summary Judgment (“Motion to Supplement”). Dkt. 132. The Court will address each of these motions in turn.


         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.” It further states that the surreply “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)).

         Dr. Haynes has submitted his proposed surreply with his Motion for Leave. Dkt. 130-1.

         A. NEW EVIDENCE

         Dr. Haynes claims that Defendants introduced new evidence in their reply brief, including: (1) an affidavit from Defendants' counsel (Dkt. 121-1); (2) an affidavit from Krista Glazewski (Dkt. 121-2); (3) a book chapter entitled “Complex Adaptive Mentoring Programs: How to Use in Developmental Networks” by Dr. Haynes (Dkt. 121-3); (4) additional designations from the deposition of Gerardo Gonzalez (Dkt. 121-4); (5) an email from Thomas Brush to Elizabeth Boling (Dkt. 121-5); (6) additional designations from the deposition of Joyce Alexander (Dkt. 121-6); (7) external reviews of Yonjoo Cho (Dkt. 121-7); (8) an affidavit from Jane Kaho (Dkt. 121-8); and (9) excerpts from the deposition of Barbara Bichelmeyer (Dkt. 121-9). Dkt. 130 at 2. Dr. Haynes asserts that this new evidence is not admissible and that Defendants use it to advance new arguments. Dkt. 130 at 2.

         Dr. Haynes first challenges the affidavit from Defendants' counsel and how it relates to when Dr. Haynes acquired knowledge of alleged discrimination. Dr. Haynes claims that this affidavit is not admissible because Defendants' counsel lacked personal knowledge. Dkt. 143 at 6-7. “An affidavit or declaration used to support 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) (“Rule 56(c)(4)”). The affidavit states Defendants' counsel was responsible for the production of documents to Dr. Haynes, which is sufficient to establish that Defendants' counsel possessed personal knowledge and was competent to testify as to their production. Dkt. 121-1. Therefore, the affidavit is admissible.

         Nonetheless, the affidavit does raise new evidence in support of Defendants' allegation that Dr. Haynes' claims were not timely filed. In their original brief, Defendants simply cite to the Complaint to prove that Dr. Haynes was aware of the alleged evidence of discrimination as early as October 24, 2014. Dk. 67 at 15-16. The affidavit of Defense counsel, however, sheds new light on this alleged admission and constitutes new evidence. Accordingly, Dr. Haynes shall be permitted to respond to the allegations in Defendants' counsel's affidavit.

         Dr. Haynes also cites the other evidence raised for the first time in Defendants' reply brief as “new evidence and new arguments” to which he should be able to respond. Dkt. 143 at 13. Dr. Haynes specifically cites to his proposed surreply to demonstrate that there was: (1) admissible evidence that he was qualified for tenure; (2) ample evidence of a pattern of discrimination against African American males; and (3) sufficient evidence of bias against Dr. Haynes during his tenure review process. Dkt. 143 at 13. In his proposed surreply, Dr. Haynes introduces evidence from two experts, Dr. Laura Perna, to establish that he was as qualified as a professor that received tenure the year before Dr. Haynes' review; and Dr. Anthony Greenwald, to establish that there were multiple indications of implicit bias in Dr. Haynes' tenure review. Dkt. 130-1 at 13-17. Notably, however, neither of the experts' proposed evidence relates to alleged the “new evidence” that Dr. Haynes cites in his Motion for Leave. Moreover, none of the allegedly new evidence or new arguments cited by Dr. Haynes is mentioned in this section of his proposed surreply. Dr. Haynes' proposed argument is not related to the allegedly new evidence or new arguments he cites and must be rejected.

         Accordingly, Dr. Hayne's Motion for Leave to respond to Defendants' new evidence is GRANTED in part and DENIED in part.


         Defendants argued in their initial brief that both Indiana University and the individually named defendants have sovereign immunity from Dr. Haynes' Section 1981 claims. Dkt. 67 at 15-17. Specifically, Defendants argued that all of them are immune from monetary losses incurred by Dr. Haynes' denial of tenure. Dkt. 67 at 15-17. Dr. Haynes claims that the Defendants argued in their reply brief, for the first time, that Defendants seek immunity from both monetary and injunctive relief and assert qualified immunity as a defense. Dkt. 130, ¶¶ 9, 10. Defendants made clear in their initial brief that they only sought to bar Dr. Haynes' monetary claims. Dkt. 67 at 15-17. Defendants did not, however, raise the qualified immunity defense until their reply brief. Therefore, Dr. Haynes' Motion for Leave to respond to Defendants' qualified immunity argument is GRANTED in part and DENIED in part.

         C. ...

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