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Shabaz v. Senior Care Insurance Services, Inc.

United States District Court, N.D. Indiana, Hammond Division

July 31, 2018

FATIMA H. SHABAZ, Plaintiff,
v.
SENIOR CARE INSURANCE SERVICES, INC., d/b/a SENIOR CARE INSURANCE SERVICES, Defendant.

          OPINION AND ORDER

          JOHN E. MARTIN MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion for Summary Judgment and Designation of Evidence in Support [DE 33], filed by Defendant Senior Care Insurance Services, Inc., on November 8, 2017, and a Motion to Strike Unsupported and Inadmissable Assertions of Fact Relied Upon by Plaintiff in Opposition to Summary Judgment [DE 43], filed by Defendant on January 15, 2018.

         I. Procedural Background

         On June 10, 2016, Plaintiff Fatima H. Shabaz filed a Complaint, and on November 10, 2016, filed an Amended Complaint, alleging that Defendant Senior Care Insurance Services discriminated against her on the basis of her gender, subjected her to a hostile work environment, and retaliated against her for complaining about the harassment, in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Equal Pay Act, as amended. On November 8, 2017, Defendant filed the instant Motion for Summary Judgment. Plaintiff filed a response on January 1, 2018, and on January 15, 2018, Defendant filed a reply and the instant Motion to Strike. Plaintiff responded to the Motion to Strike on January 29, 2018, and on February 5, 2018, Defendant filed a reply.

         The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

         II. Summary Judgment Standard

         The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). “[S]ummary judgment is appropriate - in fact, is mandated - where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotations omitted).

         A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56(c). The moving party may discharge its initial responsibility by simply “‘showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. at 323, 325; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254, 1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials, and, if the moving party has “produced sufficient evidence to support a conclusion that there are no genuine issues for trial, ” then the burden shifts to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill Assoc., 914 F.2d 107, 110-111 (7th Cir. 1990) (citations omitted); see also Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993).

         Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it . . . .” Fed.R.Civ.P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts, ” but must “come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)).

         In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Liberty Lobby, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Liberty Lobby, 477 U.S. at 249-50.

         III. Motion to Strike

         Defendant moves to strike a number of assertions of fact made by Plaintiff in her response to the Motion for Summary Judgment, arguing that they are unsupported by evidence, inadmissible hearsay, impermissible legal conclusions, contradicted by her own testimony, or otherwise do not meet the evidentiary standards. Plaintiff argues generally that her deposition testimony reflects her personal knowledge and is corroborated.

         Federal Rule of Civil Procedure 56(c)(4) provides that “[a]n affidavit or declaration 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). The Federal Rules of Evidence further provide, in relevant part, that “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony.” Fed.R.Evid. 602. Hearsay, which is defined as a declarant's out-of-court statement that a “party offers in evidence to prove the truth of the matter asserted in the statement, ” Fed.R.Evid. 801(a)(c), is not admissible unless allowed by statute, the Federal Rules of Evidence, or other rules created by the United States Supreme Court, see Fed. R. Evid. 802.

         Defendant objects to a number of statements in the fact section of Plaintiff's response brief. Defendant argues that she lacked the personal knowledge to make assertions of fact regarding the job tasks of the male insurance agents as well as those agents' salaries and commission schedules. Plaintiff's response brief cites only to her deposition testimony and interrogatory answers in support of her assertions regarding her coworkers, and the only source of that information that she identified in her deposition was other unidentified coworkers. Shabaz Dep. 41:7-42:8. This is inadmissible hearsay. See, e.g., Wilson v. Lear Seating Corp., 258 F.Supp.3d 916, 919 (N.D. Ind. 2017) (“The only evidence that [the plaintiff] cites to support this assertion is testimony from her own deposition. Because she offers [another]'s statements ‘to prove the truth of the matter asserted,' the statements are hearsay.”) (quoting Fed.R.Evid. 801(c)); Rogers v. Waukegan Pub. Sch. Dist. 60, 924 F.Supp.2d 940, 946 (N.D. Ill. 2013) (“The only record evidence that [the plaintiff] cites to support this assertion is testimony from [his] own deposition . . .This testimony is hearsay under Federal Rule of Evidence 801(c) because [the plaintiff ] testified to the statement of an out-of-court declarant . . . in an effort to establish the truth of the matter asserted by the declarant.”). In her response to the Motion to Strike, Plaintiff argues generally that other testimony corroborates her statements, but does not address the basis of Plaintiff's purported knowledge about her male co-workers' salaries, commission schedules, or job tasks, and does not point to any particular portion of the deposition testimony that bolsters her assertions. See Sommerfield v. City of Chicago, 863 F.3d 645, 650 (7th Cir. 2017) (“The judge rightly declined to wade ...


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