United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
Travis Hardwick, who is male, worked for Defendant Indiana
Bell Telephone Company (“Indiana Bell”)
for over five years. During his tenure, Mr. Hardwick worked
as a premises technician, installing and repairing
residential telephone, internet, and television services for
Indiana Bell customers. After Indiana Bell terminated Mr.
Hardwick's employment, he brought this lawsuit alleging
sex discrimination based on a single comment, and retaliation
under Title VII of the Civil Rights Act of 1964. Indiana Bell
moved for summary judgment, [Filing No. 66], and
that motion is now ripe for the Court's review. In
addition, Indiana Bell filed a Motion for Leave to Respond to
Mr. Hardwick's Surreply, [Filing No. 90], and
the parties objected to several pieces of evidence, each of
which the Court will also consider herein.
for Leave to Respond to Surreply
13, 2018, Indiana Bell filed a Motion for Leave to Respond to
Mr. Hardwick's Surreply. [Filing No. 90.] In
support of its Motion, Indiana Bell states that “[i]n
the interests of fairness and equity, Indiana Bell should be
allowed to briefly state why Plaintiff's Surreply exceeds
the scope of Local Rule 56-1(d) and why Plaintiff's
motion to strike must be denied.” [Filing No. 90 at
Rule 56-1(d) allows a party opposing summary judgment to file
a surreply “only if the movant cites new evidence in
the reply or objects to the admissibility of the evidence
cited in the response.” However, neither the local
rules nor the Federal Rules of Civil Procedure address when a
movant should be allowed to file a response to a surreply. In
denying such motions, some courts have summarily found
“that further briefing is unnecessary, ”
Thomas v. S. Bend Cmty. Sch. Corp. Bd. of Trustees,
2007 WL 2572395, at *1 (N.D. Ind. Aug. 31, 2007), while other
courts have found that granting motions to respond to a
surreply results in “full briefing” that is
“fair and useful to the adjudication of the case,
” Makhlouf v. Tailored Brands, Inc., 2017 WL
1092311, at *8 (S.D. Tex. Mar. 23, 2017); see also
Hammett v. Am. Bankers Ins. Co., 203 F.R.D. 690, 695
(S.D. Fla. 2001) (granting a plaintiff's motion for leave
to respond to a surreply because the plaintiff had introduced
a new legal theory in her reply brief).
Bell seeks to respond to Mr. Hardwick's surreply for two
reasons. First, Indiana Bell points out that in his surreply,
Mr. Hardwick objects to the admissibility of the Declaration
of Grace Biehl. [Filing No. 89 at 3-4.] The Court
finds that under the rationale set forth in Local Rule
56-1(d), Indiana Bell should be permitted to respond to Mr.
Hardwick's arguments regarding the admissibility of this
evidence, and therefore the Court grants Indiana Bell's
Motion for Leave to Respond to Mr. Hardwick's Surreply to
the extent that Indiana Bell is responding to admissibility
arguments in Mr. Hardwick's surreply.
addition, Indiana Bell seeks to respond to Mr. Hardwick's
Surreply in order to point out that it exceeds the scope of
Local Rule 56-1(d). [Filing No. 90 at 1.] Rather
than file a Motion to Strike, which is disfavored during the
summary judgment process by Local Rule 56-1(i), Indiana Bell
seeks to include its argument in favor of striking portions
of Mr. Hardwick's surreply within a response. Given that
this Court regularly entertains arguments regarding the scope
permitted by Local Rule 56-1(d), see, e.g. Chaib
v. GEO Grp., Inc., 92 F.Supp.3d 829, 835 (S.D. Ind.
2015), aff'd, 819 F.3d 337 (7th Cir. 2016), the
Court grants Indiana Bell's Motion for Leave to Respond
to Mr. Hardwick's Surreply to the extent that Indiana
Bell raises arguments regarding the permissible scope of Mr.
the Court GRANTS Indiana Bell's Motion
for Leave to Respond to Mr. Hardwick's Surreply,
[Filing No. 90], and will consider Indiana
Bell's response, [Filing No. 90-1], as
parties' briefs contain three evidentiary objections,
each of which the Court will consider in turn.
Motion to Strike Paragraph 6 of Mr. Hardwick's
Bell moves to strike paragraph 6 of Mr. Hardwick's
affidavit, contending that it is a “post-deposition
affidavit which contradicts his deposition testimony.”
[Filing No. 84 at 5.] Indiana Bell argues that in
his deposition, Mr. Hardwick stated that he asked garage
manager Charlie Smith if he remembered the situation with
area manager Lisa Brantley. [Filing No. 84 at 5.]
Subsequently, in his affidavit, Indiana Bell states that Mr.
Hardwick “now claims he affirmatively stated he
believed the ‘nice ass' comment constituted
‘sexual harassment.'” [Filing No. 84 at
6.] Indiana Bell contends that the affidavit “is
entirely new testimony which [Mr.] Hardwick should have
provided during his deposition, if true.” [Filing
No. 84 at 6.]
response, Mr. Hardwick contends that his deposition testimony
“is not in conflict with his affidavit
testimony.” [Filing No. 89 at 2.] Mr. Hardwick
contends that he “was not asked to remember and recite
each and every statement that he made to Mr. Smith in his
deposition, ” and that his “affidavit testimony
discusses in further depth what was said during this meeting
with Mr. Smith.” [Filing No. 89 at 2.]
Dunn v. Menard, Inc., the Seventh Circuit set forth
the following rule for when deposition testimony and a
subsequent affidavit are in conflict:
As a general rule . . . this circuit does not permit a party
to create an issue of fact by submitting an affidavit whose
conclusions contradict prior deposition or other sworn
testimony. Thus, where deposition testimony and an affidavit
conflict, the affidavit is to be disregarded unless it is
demonstrable that the statement in the deposition was
mistaken, perhaps because the question was phrased in a
confusing manner or because a lapse of memory is in the
circumstances a plausible explanation for the discrepancy.
880 F.3d 899, 910-11 (7th Cir. 2018) (internal quotations and
citations omitted). Helpful to this analysis is a prior
Seventh Circuit case that distinguished conflicting
statements given by two separate individuals from those
originating from the same individual. Bank of Illinois v.
Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168
(7th Cir. 1996). There, the Court set forth the same rule as
Dunn, but stated that it is to be applied
“with great caution” and in instances “when
a witness has contradicted directly his or her own earlier
statements without explaining adequately the contradiction or
without attempting to resolve the disparity.”
Id. at 1168-69.
to the facts of this case, the Court finds that Mr.
Hardwick's affidavit, stating “I told Mr. Smith
that I considered the ‘Nice ass' statement to be
sexual harassment, ” [Filing No. 80-2 at 1],
is not in direct conflict with his prior deposition testimony
regarding Mr. Smith where Mr. Hardwick stated, “I asked
him to come out in the garage so I could talk to him. I just
asked him if he could remember the situation, because
that's when I was considering calling the EEOC, ”
[Filing No. 67-1 at 35]. Mr. Hardwick was not
specifically asked the content of this conversation, nor was
he asked any follow-up questions regarding the conversation.
Moreover, Mr. Hardwick's affidavit testimony that he felt
the comment was sexual harassment is consistent with his
consideration of calling the EEOC and is consistent with Mr.
Smith's reply that “if it went where he had to go
in front of a court or give testimony, then he would tell the
truth.” [Filing No. 67-1 at 35.] To be sure,
Mr. Hardwick's affidavit contains information that was
not disclosed during the deposition, but it does not contain
a statement that is in direct conflict with his deposition
testimony. Accordingly, Indiana Bell's Motion to Strike
paragraph 6 of Mr. Hardwick's affidavit is
Motion to Strike the Declaration of Grace Biehl
Hardwick moves to strike the Declaration of Grace Biehl,
arguing that it is hearsay because Ms. Biehl lacks personal
knowledge to support her testimony and instead relies upon
company documents that were not attached to her Declaration.
[Filing No. 89 at 3-4.]
response, Indiana Bell contends that Ms. Biehl's
Declaration contains “matters within her personal
knowledge - steps she took to investigate [Mr.
Hardwick's] responses to the charges against him and the
authentication of notes she took during the
Union-Management Review Board hearing.” [Filing No.
90-1 at 3 (emphasis in original).] Indiana Bell further
contends that the Declaration is an admissible exception to
the hearsay rule under Federal Rule of Evidence 803(3).
[Filing No. 90-1 at 3-4.]
Federal Rules of Evidence provide that “[a] statement
of the declarant's then-existing state of mind (such as
motive, intent, or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health),
but not including a statement of memory or belief to prove
the fact remembered or believed . . .” is not excluded
by the rule against hearsay. Fed.R.Evid. 803(3).
case, Ms. Biehl's Declaration consists of two pages that
Indiana Bell attached in support of its reply brief.
[Filing No. 82-4 at 2-3.] Indiana Bell cited Ms.
Biehl's Declaration only once throughout its briefing,
and did so to support its argument that the “evidence
does nothing to call into question the honesty of the
Company's belief that [Mr.] Hardwick's conduct
violated Company rules. Biehl's notations on [Mr.]
Hardwick's submissions demonstrate the Company
investigated [Mr.] Hardwick's explanations and found them
to be discredited by other information in the Company's
possession.” [Filing No. 84 at 9-10.]
Accordingly, the Court finds that the statements set forth in
Ms. Biehl's Declaration were offered by Indiana Bell to
show Ms. Biehl's state of mind and not for the truth of
the matter asserted. As such, Ms. Biehl's Declaration is
not hearsay and Mr. Hardwick's Motion to Strike Ms.
Biehl's Declaration, [Filing No. 89 at 3-4], is
Motion to Strike Portions of Mr. Hardwick's
Bell moves to strike paragraphs 8 through 14 of Mr.
Hardwick's surreply, contending that the arguments
contained therein exceed the scope of Local Rule 56-1(d) by
reiterating and expanding upon substantive arguments
regarding the merits of Mr. Hardwick's retaliation claim.
[Filing No. 90-1 at 1.] Indiana Bell argues that the
local rules “do not allow [Mr. Hardwick] the final word
on these substantive arguments.” [Filing No. 90-1
to paragraphs 8 through 14 of Mr. Hardwick's surreply,
the Court observes that Mr. Hardwick is not responding to new
arguments in Indiana Bell's reply brief. Mr. Hardwick
essentially argues that even though there is no “direct
evidence that Ms. Brantley was aware that he had engaged in
protected activity, ” [Filing No. 89 at 2],
she had circumstantial knowledge of the same. That this
argument could have been made in Mr. Hardwick's response
brief is demonstrated by Mr. Hardwick's contention that
Indiana Bell incorrectly interpreted Luckie v. Ameritech
Corp., 389 F.3d 708 (7th Cir. 2004), [Filing No. 89
at 2], because this case was cited by Indiana Bell in
its brief in support of summary judgment concerning Indiana
Bell and Ms. Brantly's knowledge of Mr. Hardwick's
complaints (or lack thereof). [Filing No. 69 at 21.]
the Court always tries to allow litigants a full and fair
opportunity to respond to arguments made by their adversary,
including allowing surreplies, surreplies are not allowed
under the local rules unless they are to address newly raised
evidence or arguments, or respond to objections raised in the
reply.” Chaib, 92 F.Supp.3d at 835. Here, Mr.
Hardwick used his Surreply not to respond to new arguments or
evidentiary objections, but to make arguments that he could
have made in his response brief. As such, Indiana Bell's
motion to strike Paragraphs 8 through 14 of Mr.
Hardwick's Surreply, [Filing No. 90-1], is
GRANTED and Paragraphs 8 through 14 of Mr.
Hardwick's Surreply, [Filing No. 89], are
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. SeeFed. 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 in Part I. 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
“the party against whom the motion under consideration
is made.” Premcor USA, Inc. v. American Home
Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
Mr. Hardwick's Chain of Command at Indiana Bell
Hardwick began working for Indiana Bell as a premises
technician in June 2008. [Filing No. 67-1 at 9.] His
job duties involved installing “U-Verse products for
AT&T.” [Filing No. 67-1 at 10.] In the
course of his duties, which Mr. Hardwick primarily performed
alone, he accepted new job assignments by touching a
“Dispatch” button on his iPad, at which point he
would be given information about his first job. [Filing
No. 67-1 at 10-13.] Similarly, Mr. Hardwick would close
out completed jobs and receive his next job of the day by
touching the “Close” button on the iPad.
[Filing No. 67-1 at 13.] At the end of his shift,
Mr. Hardwick would go home after receiving a text message
from his immediate manager permitting him to do so.
[Filing No. 67-1 at 23.]
Hardwick initially reported to Indiana Bell's garage at
Girls School Road in Indianapolis, Indiana, but in October
2013, he transferred to Indiana Bell's Martinsville
garage. [Filing No. 67-1 at 25; Filing No. 67-1
at 45.] Mr. Hardwick reported to a garage manager who,
in turn, reported to an area manager. [Filing No. 67-1 at
29.] The area manager was responsible for managing and
overseeing all aspects of the garages, including the
performance of the premises technicians. [Filing No. 67-4
at 3.] At some point, Lisa Brantley became the area
manager who supervised Mr. Hardwick. [Filing No. 67-1 at
30.] Mr. Hardwick was supervised at various points by
the following garage mangers: Christopher Cook, Charlie
Smith, Barry Voorhees, and Norm Toothman. [Filing No.
67-1 at 25; Filing No. 80-1 at 9.] In addition,
Grace Biehl was the Lead Labor Relations Manager responsible
for advising managers of union-represented employees on
disciplinary actions. [Filing No. 67-5 at 2.]
he was assigned to the Girls School Road garage, Mr. Hardwick
applied for and became a “home dispatch technician,
” meaning he was able to hit the “dispatch”
button from his house, rather than from the garage.
[Filing No. 67-1 at 26.] However, on January 22,
2013, Barry Voorhees removed Mr. Hardwick from home dispatch
due to his “November 2012 and December 2012 performance
metrics.” [Filing No. 67-1 at 103.] Mr.
Hardwick was asked if he wanted to be reinstated to the
program on April 19, 2013, and he refused. [Filing No.
67-1 at 104.] Mr. Hardwick re-entered the program
sometime in the summer of 2013. [Filing No. 67-1 at
The Collective Bargaining Agreement, Code of Business
Conduct, and Guidelines governing Mr. Hardwick's
Hardwick was a member of a labor union - the Communications
Workers of America - and held the position of union steward.
[Filing No. 67-1 at 13-14.] As a union employee, the
terms and conditions of Mr. Hardwick's employment were
covered by a collective bargaining agreement, of which he
received a copy. [Filing No. 67-1 at 13.]
“[F]or the most part, ” Mr. Hardwick understood
the grievance process. [Filing No. 67-1 at 14-15.]
Hardwick received a copy of Indiana Bell's Code of
Business Conduct, (“COBC”), and received
annual training on the COBC. [Filing No. 67-1 at
14-15.] The COBC provided that:
All employees, at every level and across every area of our
business, should understand the Code and be personally
committed to it. So, I'm asking you ro do three simple
• Review the Code carefully; know what .t means and what
is expected of you.
• Follow the Code in everything you do.
• Do not hesitate to file a reporr if you see or suspect
that an employee or contractor is acting in an unlawful or
unethical manner, [t's your responsibility, and you can
be assured that your company will nor tolerate retaliation
against any person who reports an unlawful or unethical act.
No. 67-1 at 77.] The COBC further provided a hotline
number that could be used if reporting a violation of the
COBC to a supervisor was “uncomfortable.”
[Filing No. 67-1 at 86.] Mr. Hardwick refused to
sign an acknowledgement attesting that he read the COBC,
[Filing No. 67-1 at 88], because he was not an
attorney and did not “completely understand it, ”
but understood that his refusal to sign the COBC did not
exempt him from the requirement to read it, [Filing No.
67-1 at 18].
Hardwick also received a copy of the guidelines for premises
technicians (the “Guidelines”).
[Filing No. 67-1 at 18-20.] The Guidelines provided
1.3. Technicians are expected to be in route to their first
job within a reasonable amount of time, set by their
supervisor, not to generally exceed 15 minutes after the
start time. Technicians should proceed directly from their
fast job to their work location and generally not return to
the garage earlier than 15 minutes before the scheduled
conclusion of their shift.
1.4. If an employee does not have work and returns to the
garage more than 15 minutes before the end of the work day,
the employee must contact the supervisor for further
[Filing No. 67-1 at 91.]
Each employee is responsible for accurate and factual time
reporting as covered, n the Code of Business Conduct. All
time spent in work activities must be reported so that
employees are paid for all time worked
No. 67-1 at 92.]
No. 67-1 at 95.]