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Starks v. OmniSource Corp.

United States District Court, N.D. Indiana

February 27, 2019

JAMES E. STARKS SR., Plaintiff,


          Joseph S. Van Bokkelen United States District Judge

         This 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.

         A. The Motion to Strike

          The 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.

         Defendant 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 Plaintiff states:

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, Defendant's Index]

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).

         In his 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.

         Defendant 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.

         Turning 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.

         Finally, 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.

         B. Summary Judgment

         (1) Legal Standard

          Under 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 ...

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