United States District Court, N.D. Indiana
JAMES E. STARKS SR., Plaintiff,
OMNISOURCE CORPORATION, Defendant.
OPINION AND ORDER
S. Van Bokkelen United States District Judge
matter is before the Court on Defendant OmniSource
Corporation's motion for summary judgment (DE 57) and
supporting brief, Plaintiff James Starks's response
brief, and Defendant's reply. Also before the Court is
Defendant's motion to strike portions of Plaintiff's
affidavit and his proposed errata changes to his deposition
(DE 61), to which Plaintiff has not responded.
The Motion to Strike
first statement in Plaintiff's affidavit of concern to
Defendant is ¶ 19: “There was no knowledge or
information of alcohol impairment or consumption known to the
Defendant or communicated to the undersigned by the Defendant
on the date of termination.” (DE 59-1 at 7.) Defendant
argues that Starks does not have first-hand knowledge of what
Defendant, through its agents, knew about alcohol impairment
and consumption. The Court agrees and will strike the words
“known to the Defendant or” from ¶ 19.
next moves to strike ¶ 33 of the affidavit, in which
Plaintiff states: “Others in the non-protected class
were not disciplined for similar or worse conduct involving
alcohol on the Defendant's workplace premises.” (DE
59-1 at 9.) Defendant also objects to ¶ 36. There
Other white male co-employees who were not disciplined for
possession and consumption of alcohol during this period were
Samuel Shinaberry, Gary Hedges, Robert Yagle, Timothy
Southivong [Asian American], Chris Banks and Kyle Weible.
Starks could smell alcohol on their breath and/or Southivong,
Banks and Weible were sent home by OmniSource management for
consumption of alcohol. [Exhibit E, Starks Depo., pp. 37-39,
Appendix, pp. 26-28 and Worrell Affidavit, Exhibit B,
Id. Defendant maintains that these assertions
contradict statements in Plaintiff's deposition and run
afoul of the rule that a party cannot defeat summary judgment
by such means. See Miller v. A.H. Robins Co., Inc.,
766 F.2d 1102, 1104 (7th Cir. 1985).
deposition, Plaintiff said that Scott Worrell, Sammy
Shinaberry, Gary Hedges, Robert Yagle, and Timothy Southivong
were employees whose names he could think of on the day of
the deposition who had consumed alcohol before coming to work
and that he knew that because he smelled it on them. He
further testified that he believed that Chris Banks, Timothy
Softhong, and Kyle Weible were sent home from work because
someone thought they had alcohol in their systems. However,
he also stated in his deposition that he only heard rumors
that they had been sent home and didn't know the details.
has not shown the Court how Plaintiff's statement in
¶ 33 contradicts anything he said in his deposition.
Accordingly, the Court DENIES its motion to
strike as to that paragraph.
to ¶ 36, the statement that Southivong, Banks, and
Weible were sent home for consumption of alcohol will be
stricken, because Plaintiff's claim in his affidavit of
personal knowledge of these events contradicts his deposition
testimony that he had only heard rumors about them. However,
the other statements in ¶ 36 will not be stricken
because, once again, Defendant has not shown how they
contradict his deposition testimony.
Defendant asks the Court to strike a statement Plaintiff made
in the errata sheet to his deposition, in which he answers a
question he wasn't asked during the deposition. He
admitted in his deposition testimony that he brought a lunch
bag to work that had two wine cooler bottles in it. However,
in his errata sheet he added that he didn't know the
bottles were there. This statement contradicts nothing in his
deposition, but merely adds to it. Moreover, Plaintiff makes
the same statement in his affidavit, so that striking it from
the errata sheet would be pointless. The Court
DENIES Defendant's motion with regard to
striking the statement in the errata sheet.
Federal Rule of Civil Procedure 56(a), the Court must grant a
motion for summary judgment if the moving party shows
“that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” 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