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Hardwick v. Indiana Bell Telephone Company, Inc.

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

September 26, 2018



          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff 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.


         Motion for Leave to Respond to Surreply

         On July 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 1.]

         Local 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).

         Indiana 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.

         In 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. Hardwick's surreply.

         Accordingly, 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 appropriate herein.


         Evidentiary Objections

         The parties' briefs contain three evidentiary objections, each of which the Court will consider in turn.

         A. Motion to Strike Paragraph 6 of Mr. Hardwick's Affidavit

         Indiana 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.]

         In 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.]

         In 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.

         Applied 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 DENIED.

         B. Motion to Strike the Declaration of Grace Biehl

         Mr. 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.]

         In 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.]

         The 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).

         In this 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 DENIED.

         C. Motion to Strike Portions of Mr. Hardwick's Surreply

         Indiana 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 at 2.]

         Turning 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.]

         “Although 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 STRICKEN.


         Standard of Review

         A 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. 56(e).

         In 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).

         On 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).


         Statement of Facts

         The following factual background is set forth pursuant to the standards detailed in Part I.[1] 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).

         A. Mr. Hardwick's Chain of Command at Indiana Bell

         Mr. 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.]

         Mr. 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.]

         While 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 49.]

         B. The Collective Bargaining Agreement, Code of Business Conduct, and Guidelines governing Mr. Hardwick's Employment

         Mr. 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.]

         Mr. 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:

         (Image Omitted)

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 things:
• 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.

         [Filing 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].

         Mr. Hardwick also received a copy of the guidelines for premises technicians (the “Guidelines”). [Filing No. 67-1 at 18-20.] The Guidelines provided as follows:

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 instructions.

[Filing No. 67-1 at 91.]

         3.1. 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

         [Filing No. 67-1 at 92.]

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         [Filing No. 67-1 at 95.]

         (Image Omitted)

         [Filing ...

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