United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
ANDREW
P. RODOVICH UNITED STATES MAGISTRATE JUDGE
This
matter is before the court on the Motion for Summary Judgment
[DE 59] and the Motion to Strike Potions [sic] of
Plaintiff's Response to Defendant's Motion for
Summary Judgment [DE 70] filed by the defendant, City of
Gary, on May 14, 2018 and July 3, 2018. The Motion for
Summary Judgment [DE 59] is GRANTED, and the
Motion to Strike Potions [sic] of Plaintiff's Response to
Defendant's Motion for Summary Judgment [DE 70] is
GRANTED.
Background
The
plaintiff, Ebony Appleton, filed her complaint on October 18,
2016, alleging that the defendant, City of Gary, violated
Title VII of the Civil Rights Act of 1964. Based on
Appleton's pro se complaint, she has alleged sex
discrimination and retaliation in violation of Title VII.
Appleton, in her response to the City's motion for
partial dismissal of the complaint, indicated that she was
not alleging a sexual harassment claim. Therefore,
Appleton's claims in the instant matter are limited to
sex discrimination and retaliation.
Appleton
began working for the City of Gary in the Youth Services
Bureau (YSB) of the City's Parks Department as the
part-time After School Group Leader on September 16, 2014. On
April 6, 2015, Appleton was promoted to a part-time Site
Manager. However, her pay remained the same. Appleton
reported to YSB Director, Ken Barry, and then Cecelia Garmon,
beginning late April of 2015. At the start of January of
2016, she began reporting to Marcus Hare. On March 31, 2016,
Appleton sent a letter to the City's Human Resources
Department requesting a transfer. She advised the City's
Director of Human Resources, Marianetta Barber, that she had
difficulty working with Hare, Garmon, and Patricia Covington.
Appleton remained a YSB Site Director until she was
transferred to a vacant Recreational Aide position in the
Parks Department on September 6, 2016 and was given a pay
raise. She reported to the City's Superintendent of the
Park's Department, Lori Latham, from April of 2016 until
her discharge on September 23, 2016.
Appleton
filed a Charge of Discrimination with the Gary Human
Relations Commission (GHRC) on May 12, 2016 alleging sex
discrimination. The GHRC found no probable cause to support
her claims, and on September 13, 2016 the EEOC adopted those
findings and issued a Dismissal and Notice of Rights to
Appleton. On September 23, 2016, Appleton's employment
with the City was terminated. She then filed a second Charge
of Discrimination with the GHRC on September 27, 2016
alleging retaliation. Appleton contends that she was
retaliated against for filing the first charge. Appleton did
not provide a Dismissal and Notice of Rights letter in
connection with her second charge of retaliation. However,
the court determined that her retaliation claim grew out of
her earlier sex discrimination charge, and therefore she was
not required to exhaust her administrative remedies.
The
City has argued that the allegations that Appleton has
asserted against the City are not sufficient to support
claims of sex discrimination and retaliation. The City
contends that Appleton has not presented any actual evidence
of sex discrimination. Moreover, as for Appleton's
retaliation claim, the City represents that Appleton
continuously disobeyed City policies, particularly right
before her dismissal.
Discussion
Before
addressing the City's motion for summary judgment, the
court first must determine what evidence it may consider by
addressing the City's motion to strike certain portions
of Appleton's response. Appleton has filed four separate
documents in response to the City's motion for summary
judgment including: Plaintiff Request that Defendant Summary
Judgement [sic] be Denied [DE 65]; Plaintiffs Support to
Dismiss Defendant Summary Judgement [sic] [DE 66]; Plaintiffs
Support for Dismissal of Defendants Summary Judgement [sic]
[DE 67]; and Declaration of Ebony Appleton [DE 68]. The City
has argued that Appleton's response relies on documents,
assertions, and personal statements that are unrelated to the
claims in the instant matter.
Appleton,
despite being advised by the court, has failed to respond to
the City's statement of material facts as required by the
court's summary judgment procedures and has failed to
properly submit any proposed findings of fact of her own.
Under the procedures, Appleton was required to include a
section labeled “Statement of Genuine Disputes”
that identifies the material facts that the party contends
are genuinely disputed so as to make a trial necessary. N.D.
Ind. L.R. 56-1. Instead, Appleton has
presented the court with a plethora of information without
citing affidavits, discovery responses, or other admissible
evidence. It is not the court's job to “figure out
for which issues which parts” of the designated
evidence might be admissible. Bradley v. Work, 154
F.3d 704, 707 (7th Cir. 1998). The court recognizes
that the Appleton is pro se and should not be held
to the same standards as a litigant with an attorney and that
pro se litigants face special challenges that
litigants represented by counsel do not. However, pro
se litigants are not excused from following procedural
rules simply because the rules of procedure assume that
litigation is normally conducted by lawyers. Lee v.
Wal-Mart Stores, 1994 WL 899240, * 1 (N.D. Ind. 1994).
Federal
Rule of Civil Procedure 56(c)(2) provides that “[a]
party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.” Appleton has provided the
determination of the Indiana Department of Workforce
Development (IDWD) [DE 66] for unemployment compensation. The
IDWD determination record submitted by Appleton has nothing
to do with her sex discrimination and/or retaliation claims.
Instead, it focused on if she was “discharged for just
cause.” The award of unemployment benefits is not
helpful, or even admissible. See McClendon v. Ind.
Sugars, Inc., 108 F.3d 789, 798 (7th Cir. 1997)
(explaining that the plaintiff was precluded from using an
unemployment compensation determination from an Indiana
administrative proceeding to support his assertion that the
employer's proffered reason was a pretext for retaliation
because the ultimate issue decided in the Indiana proceeding
was different from the ultimate issue presented in the
retaliatory discharge case and because the allocation of the
burden of proof with respect to the underlying facts was
significantly different in the two proceedings). “The
nature of the proceeding to determine eligibility for
unemployment compensation is fundamentally different than a
Title VII action, and the conclusions of that state agency
are in no way binding on the district court. Martin v.
Dep't of Corr., 2005 U.S. Dist. LEXIS 6715, at *18
(S.D. Ind. 2005). Accordingly, IDWD determination submitted
by Appleton must be stricken.
Additionally,
Appleton submitted an unrelated criminal decision. She has
not offered any explanation for how the criminal matter is
related to the instant case. Therefore, the court will not
consider the criminal case in determining whether summary
judgment is appropriate. Appleton also has made references to
an unrelated claim for lost wages and allegations that her
“guaranteed” hours were reduced. She has not
filed a timely charge of discrimination relating to these
allegations. Thus, the criminal case submitted and the above
allegations are stricken.
The
City has argued that Appleton has devoted a large portion of
her response to facts, opinions, and allegations of
harassment. However, she specifically indicated in her
response to the motion for partial dismissal that she did not
file a claim for sexual harassment. Therefore, the City has
argued that because a claim for sexual harassment is not
before the court her allegations of harassment should be
stricken. Moreover, the City contends that the statements
made by Appleton are opinion and conjecture, and thus are not
admissible.
Federal
Rule of Evidence 602 requires that a declarant have personal
knowledge about the matters to which she testifies.
Additionally, Federal Rule of Civil Procedure 56(c)(4)
mandates 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." The affiant may
include reasonable inferences drawn from her own observations
but may not testify as to the knowledge or observations of
another. Payne v. Pauley, 337 F.3d 767, 772 (7th
Cir. 2003). The City has cited specific allegations submitted
by Appleton in the Plaintiffs Support for Dismissal [DE 67]
and Declaration of Ebony Appleton [DE 68] that it asserts are
unrelated and inadmissible. The court finds that
Appleton's response contains inadmissible hearsay,
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