United States District Court, S.D. Indiana, Indianapolis Division
RAY K. HAYNES Ph.D., Plaintiff,
INDIANA UNIVERSITY, THE BOARD OF TRUSTEES OF INDIANA UNIVERSITY, Defendants.
ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO FILE
SURREPLY AND MOTION TO SUPPLEMENT EVIDENCE
J. McKINNEY, United States District Court Judge
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.
MOTION FOR LEAVE
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.
Haynes has submitted his proposed surreply with his Motion
for Leave. Dkt. 130-1.
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.
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.
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'
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
Dr. Hayne's Motion for Leave to respond to
Defendants' new evidence is GRANTED in part and DENIED in
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.