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King v. Indiana Harbor Belt Railroad

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

November 13, 2018

MATTHEW KING, Plaintiff,



         Plaintiff Matthew King brings this lawsuit under the Federal Railroad Safety Act, 49 U.S.C. § 20109, et seq., alleging that his employer retaliated against him for engaging in various protected activities. The stay in this case has been lifted, and the Court now returns to address the rest of Defendant Indiana Harbor Belt Railroad's (“IHB”) motion for summary judgment [DE 55] after having dealt with the interrelated issues of standing, bankruptcy, and judicial estoppel in its March 30, 2018, order. [DE 81][1] Also pending are two motions to strike, filed by IHB. [DE 67; DE 68] For the reasons stated herein, the Court will grant in part IHB's motions to strike, and will grant summary judgment for IHB on all of King's retaliation claims.


         Before turning to the substantive issues presented for summary judgment, the Court must at least partially address IHB's two successive motions to strike. In its first motion, IHB seeks to strike portions of King's statement of genuine disputes for failing to comply with the Local Rules. [DE 67] IHB's second motion asks the Court to strike a corporate organization chart, various notes scribbled on some of King's exhibits, and a series of handwritten memos (King's Exhibits 2-7, 10, and 11) that King purports to have jotted down contemporaneously with the events described therein. [DE 68] Predominantly, the memos summarize conversations King claims to have had with other IHB employees about his allegations of retaliation. [DE 68 at 3-6]

         The Court will focus its analysis on King's handwritten memos because King attempts to rely on two of them in particular to create an inference that IHB acted with a retaliatory motive: Exhibits 2 and 10.[2] In Exhibit 2, King recaps a conversation he had with an IHB crew dispatcher in which she told King that IHB disciplined him because he brought a lawsuit against the company. [DE 61-2] In Exhibit 10, King recites what an IHB human resources employee apparently told his union chairman (who then told King), that King's requests were being denied because of an open OSHA case. [DE 61-10] The memos themselves are hand-dated and unsigned. Neither King nor his counsel disclosed the existence of these handwritten memos prior to his deposition; he first alluded to these “statements” at the deposition itself and then later produced them to IHB via supplemental disclosure.

         “When determining whether to grant a motion for summary judgment, the court may consider evidence beyond the pleadings, but may only consider evidence which would be otherwise admissible at trial.” Sissom v. Purdue Univ., No. 4:04-CV-72, 2006 WL 897572, at *4 (N.D. Ind. Mar. 31, 2006), aff'd, 207 Fed.Appx. 715 (7th Cir. 2006) (citing Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2000)). “To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.” Scott v. Edinburg, 346 F.3d 752, 760 n.7 (7th Cir. 2003) (quoting 10A Charles Alan Wright et al., Federal Practice & Procedure § 2722, at 379-80, 382-84 (1998)); see also Szymankiewwicz v. Doying, 187 Fed.Appx. 618, 622 (7th Cir. 2006). As set forth in Federal Rule of Evidence 901(a), “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

         King has not satisfied Rule 901(a) as to these handwritten memos. The memos have not been introduced by affidavit or any other sworn statement. King's own declaration [DE 61-12] makes no mention of these writings, nor do any of the declarations submitted by his attorneys. [DE 61-17; DE 75] Furthermore, the memos themselves are unsworn, so even if the Court were to consider them as individual affidavits, they would still fail for want of admissibility. See Sexson v. State Farm Fire & Cas. Co., 61 Fed.Appx. 267, 270 (7th Cir. 2003) (“On a motion for summary judgment, a court must not consider those parts of an affidavit that are insufficient” under Fed.R.Civ.P. 56(c)(4), which sets out mandatory requirements, “and the failure to follow those requirements makes the proposed evidence inadmissible during the consideration of a summary judgment motion.”) (internal citations omitted); see also Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985) (On summary judgment, affidavits are only admissible under 28 U.S.C. § 1746 if they are “made under penalties of perjury; only unsworn documents purporting to be affidavits may be rejected.”).

         King argues that he authenticated these documents at his deposition, but the Court does not agree. First of all, King's handwritten memos were not present at his deposition, and so he could not identify them on the record as the same documents he now submits. Cf. First Nat'l Bank Co. of Clinton, Ill. v. Ins. Co. of N. Am., 606 F.2d 760, 766 (7th Cir. 1979) (“When called on to decide whether there is any genuine issue of material fact to be resolved, a district judge in a federal summary judgment proceeding is authorized to consider … exhibits which are made part of a deposition record.”) (citation omitted); Hackel v. Nat'l Feeds, Inc., 986 F.Supp.2d 963, 968-69 (W.D. Wisc. 2013) (denying challenge to authenticity of documents where those documents were themselves deposition exhibits). Second, after testifying that he kept “written statements” about his interactions with fellow employees for “[his] own mind to remember” (Deposition of Matthew King at 125:18-126:15), King provided no details to corroborate whether the handwritten memos at issue are the same documents he vaguely mentioned on the record. As summarized by IHB, and as independently verified by the Court, King could not recall anything about his alleged written statements during his deposition. [DE 78 at 7-9] He answered counsel's thorough questions about these statements almost exclusively with either “I'm not sure” or “I don't know.” King cannot fairly say that he authenticated these items at his deposition. See, e.g., Circuitronics, Inc. v. Tech. Serv. Grp., Inc., No. 94 C 4072, 1996 WL 84187, at *3 (N.D. Ill. Feb. 22, 1996) (declining to consider document on summary judgment for lack of authentication where witness stated during his deposition only that the document “was given to [him]”; vague references to documents by a witness in a deposition do not serve to authenticate those documents).

         Tellingly, not only did King fail to submit these handwritten memos by way of declaration or affidavit in opposing summary judgment, but he made no effort to cure this glaring deficiency once alerted to it by IHB's motion to strike. Despite ample opportunity to swear to the contents of his handwritten memos, King has not made a sufficient showing that they are indeed what he claims them to be: accurate accounts of real events.

         Granted, King's failure to authenticate his handwritten memos does not itself render them meaningless at summary judgment, because the nonmoving party need only produce evidence that would be admissible in content at trial. Stinnett v. Iron Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). However, King's handwritten memos will not be considered here because they would nevertheless be inadmissible at trial under the rules against hearsay. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) (“[H]earsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial.”). The parties do not dispute that the handwritten memos fall under the definition of hearsay; the memos are out-of-court statements made by King and offered to prove the truth of the matters asserted therein (i.e., the events they describe). Fed.R.Evid. 801; see also Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004) (“A memo normally is hearsay, being offered to prove the truth of a statement made out of court ….”). King argues that the handwritten memos would still be admissible at trial under any of the following exceptions to the rule against hearsay: present sense impressions (Rule 803(1)); recorded recollections (Rule 803(5)); and records of a regularly conducted activity (Rule 803(6)).

         King's arguments do not persuade the Court. First, his memos do not qualify as records of a regularly conducted activity under Rule 803(6). That exception requires such records be “kept in the course of a regularly conducted activity of a[n] … occupation.” Fed.R.Evid. 803(6)(A). King presents no argument that his occupation as a conductor at IHB requires him to make these recordings, and nothing in the record reflects such a notion. In fact, King's counsel admitted that these memos were created for purposes of litigation. (King Dep. 128:8-12); Lust, 383 F.3d at 588 (The only purpose of the memoranda “was to create evidence for use in [plaintiff's] anticipated lawsuit, and that purpose disqualifies them from admission as business records.”).

         Second, even assuming that King actually wrote these memos on the same dates as the events described therein, they still cannot satisfy the hearsay exception for present sense impressions. As the Seventh Circuit explained in Lust, “unlike some other forms of hearsay, the argument for excluding [a memo] from evidence unless it falls within one of the exceptions to the hearsay rule is compelling.” 383 F.3d at 588 (holding memos written by plaintiff's supervisor documenting plaintiff's complaints about discrimination constituted inadmissible hearsay). Even when such memos are “contemporaneous with the events narrated in them, they fall outside the spontaneity exceptions in Fed.R.Evid. 803(1)-(3). The rationale for these exceptions is that spontaneous utterances … are unlikely to be fabricated, because fabrication requires an opportunity for conscious reflection.” Id. (citing United States v. Santos, 201 F.3d 953, 963-64 (7th Cir. 2000); United States v. Hall, 165 F.3d 1095, 1108-09 (7th Cir. 1999)). Like a diary entry, King “had the opportunity to write down whatever [he] wanted to when [he made his entries]; they were not spontaneous utterances, but rather the rendition of events that [he] chose to put down on paper.” Hughes v. Indianapolis Radio License Co., 2009 WL 226209, at *7 (S.D. Ind. Jan. 30, 2009) (rejecting plaintiff's argument that her diary was admissible under Rule 803(1)). Theoretically, King might be able to satisfy Rule 803(1) if he could show that the he wrote his memos immediately after the events took place, but he has not made that showing here, and indeed the language used in the memos would suggest otherwise. Therefore, if this case proceeded to trial, King's handwritten memos would not be admissible as present sense impressions. Lust, 383 F.3d at 588 (“There is no more facile a method of creating favorable evidence than writing a self-exculpatory note. Such notes have no warrants of reliability and allowing them to be placed in evidence would operate merely as a subsidy to the forest-products industry.”).

         Third, King suggests that the handwritten memos may be read into evidence at trial via Rule 803(5), which requires: (1) that the memos concern matters about which King once had knowledge but now has insufficient recollection to testify fully and accurately; and (2) that King made or adopted the memos when the matters were fresh in his memory and the memos reflect that knowledge correctly. Collins v. Kibort, 143 F.3d 331, 338 (7th Cir. 1998). King has made no showing that he can satisfy these elements at trial. But regardless, King overlooks the fact that the memos suffer from separate evidentiary issues of their own. For example, King's memo relating to his interaction with his union chairman contains multiple layers of hearsay:

I asked him wut [sic] about my stuff and he told me and I quote I spoke to Mary Kay (Human Resources) about all of your stuff and she told me that everything he has or had I am gonna [sic] deny it because he has a [sic] open OSHA case.

[DE 61-10] This excerpt does not adhere to Rule 805's requirement that “each part of the combined statements conform[ ] with an exception to the rule [against hearsay].” What the union chairman heard from Mary Kay and relayed to King is itself hearsay, and King has not raised any exception that would make it independently admissible. See Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 883 (7th Cir. 2016), cert. denied, 137 S.Ct. 82, 196 L.Ed. 2D 36 (2016) (“‘Where a plaintiff attempts to introduce the testimony of an individual who did not personally witness the alleged … statement but was later told by another that the statement was made, such testimony is rejected as hearsay' on summary judgment.”) (quoting Schindler v. Seiler, 474 F.3d 1008, 1011 (7th Cir. 2007)). As such, Exhibit 10 does not conform with Rule 805, and therefore will not be considered here.

I told her I don't know why they just won't leave me alone. And she said I know and didn't you … have or had something going against the company like a lawsuit now or then and I said yea now and she said well that's why so keep fighting along and good luck.

[DE 61-2] Although not raised by the parties, it could be argued that the dispatcher's statement constitutes non-hearsay, because, as an agent of IHB, her statements may qualify as a statement by a party opponent under Rule 801(d)(2). But even if that were so, “a plaintiff seeking to thwart summary judgment must comply with Federal Rule of Civil Procedure 56(e) and Federal Rule of Evidence 602, both of which require that the testimony be based on personal knowledge.” Widmar v. Sun Chem. Corp., 772, F.3d 457, 460 (7th Cir. 2014). King has not established that the dispatcher had personal knowledge that King was being retaliated against because of his lawsuit. In the absence of such a showing, the dispatcher's analysis is nothing more than speculation, and her statement is therefore irrelevant for the purpose of creating an inference of retaliatory animus in King's favor. See Id. (“Personal knowledge can include reasonable inferences, but it does not include speculating as to an employer's state of mind, or other intuitions, hunches, or rumors.”) (citing Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003)).

         For all foregoing reasons, the Court will grant IHB's motion to strike with respect to King's Exhibits 2 and 10. The Court need not address the other items IHB seeks to strike, because the Court's conclusion on ...

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