United States District Court, N.D. Indiana, Hammond Division
FATIMA H. SHABAZ, Plaintiff,
SENIOR CARE INSURANCE SERVICES, INC., d/b/a SENIOR CARE INSURANCE SERVICES, Defendant.
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
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.
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.
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).
Summary Judgment Standard
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).
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).
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)).
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.
Motion to Strike
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
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.
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 ...