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Solomon v. Wardlaw Claim Services, LLC

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

June 19, 2019

MARLO SOLOMON, Plaintiff,
v.
WARDLAW CLAIM SERVICES, LLC, Defendant.

          OPINION AND ORDER

          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on the Motion for Summary Judgment [DE 50], and the Objections and Motion to Strike Portions of Plaintiff's Summary Judgment Exhibits [DE 65] filed by the defendant, Wardlaw Claim Services, LLC, on October 31, 2018 and January 4, 2019. For the following reasons, the Motion for Summary Judgment [DE 50] is GRANTED, and the Objections and Motion to Strike Portions of Plaintiff's Summary Judgment Exhibits [DE 65] is GRANTED.

         Background

         The plaintiff, Marlo Solomon, filed her Complaint on November 30, 2017, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. Solomon has brought claims under Title VII for race discrimination and hostile work environment (Count I); sex discrimination and hostile work environment (Count II); retaliation (Count III); and an Indiana statutory and state law claim for blacklisting (Count IV).

         The defendant, Wardlaw Claim Services, LLC, is an independent insurance claims adjusting company headquartered in Waco, Texas. Wardlaw staffed claim operations centers in various parts of the country for State Farm Insurance, including West Lafayette, Indiana.

         Solomon, a black female, was hired by Wardlaw in October of 2014 to work at the West Lafayette operations center as a trainer. She was promoted from trainer to Assistant Site Manager, effective July 1, 2015. Solomon reported to Diana Waggoner, the National Account Manager, and Crystal Bell, the Director of HR.

         On October 17, 2015, Wardlaw hired Randy Kinder, a white male, as a trainer at the West Lafayette operations center. He was promoted to Assistant Site Manager on December 30, 2015. Solomon has alleged that she received complaints from other female employees concerning Kinder's conduct. Additionally, Solomon alleged that she was subjected to Kinder's harassment when he referred to her as a “bitch” and stared and stood over her while she worked. Solomon contends that she reported the complaints about Kinder to Waggoner. On January 5, 2016, Solomon sent Bell an email that a female employee had approached her about a sexual harassment complaint against Kinder. Less than forty-eight hours after receiving this complaint, Kinder was terminated from Wardlaw.

         Solomon contends that after she reported Kinder's conduct, Wardlaw commenced a “campaign to terminate [her] employment.” First, she has indicated that Wardlaw questioned her about her time sheets. On January 20, 2016, Waggoner emailed Solomon regarding her time sheet for the preceding week. (DE 50-1, Ex. 23, 24). Specifically, Waggoner questioned Solomon on why she had indicated that she worked until 6:30 p.m. on January 14, 2016, when Waggoner had personal knowledge that Solomon left an hour earlier. (DE 50-1, Ex. 24).

         Wardlaw hired Charlette Green, a black female, to replace Kinder on January 13, 2016. Green was working for Wardlaw in Missouri before she was promoted and transferred to West Lafayette. After Green began working at the West Lafayette operations center, Waggoner sent an email that instructed the West Lafayette management team, which included Solomon, about management expectations. (DE 50-1, Ex. 25). Waggoner advised that everyone was expected to be aware of updates, changes, and expectations, and therefore all email communications were to be shared with the entire management team. (DE 50-1, Ex. 25). On February 4, 2016, Solomon emailed Waggoner numerous complaints about how Green was managing her team. (DE 50-1, Ex. 27). Thereafter, on February 5, 2016, Waggoner held a conference call with the West Lafayette management team emphasizing the necessity for teamwork and cooperation, and indicating that disruptive and toxic attitudes would not be tolerated. (DE 50-1, Ex. 47). After the conference call, Green made allegations about Solomon to Waggoner. (DE 50-1, Ex. 47). Bell and Waggoner called Solomon to discuss the allegations. (DE 50-1, Ex. 47). Over the next few weeks, Green reported to Waggoner and Jason Keahey, Wardlaw's Field Manager, that Solomon was excluding her from team meetings and communications. (DE 50-1, Ex. 29).

         Waggoner and Bell interviewed two senior employees, Kenneth Jackson, a black male, and Tiffany Turnbull, a white female, who worked at the West Lafayette office on March 7, 2016 and March 8, 2016. (DE 50-1, Ex. 46, 47). Jackson indicated that Solomon created an unbearable work environment. (DE 50-1, Ex. 46, 47). Also, Turnbull indicated that there was a great divide and animosity within the office. (DE 50-1, Ex. 46, 47). Turnbull described Green as the “best manager” and as “very fair.” (DE 50-1, Ex. 46, 47). Wardlaw offered this evidence to establish Waggoner's and Bell's state of mind in deciding whether to terminate Solomon's employment. Accordingly, such evidence is admissible as non-hearsay evidence. Wardlaw terminated Solomon's employment on March 9, 2016. (DE 50-1, Ex. 46, 47).

         After Solomon was discharged, she filed a charge of discrimination with the EEOC on April 1, 2016. (DE 19-1). Solomon alleged discrimination based on race, sex, and retaliation. She indicated that the earliest date she was subjected to discrimination was December 1, 2015. Thereafter, Solomon began working for Eberl Claims Service in Duluth, Georgia. (DE 50-1, Ex. 39, 40). Her employment with Eberl was expected to last until June 25, 2016. (DE 50-1, Ex. 39). However, she was discharged by Eberl on May 24, 2016. Solomon filed a second charge of discrimination on February 13, 2017, alleging discrimination based on race, age, and retaliation. (DE 19-1).

         Solomon has alleged that Wardlaw violated Title VII by terminating her employment because of her race and sex and in retaliation for reporting the alleged harassment of Randy Kinder. Moreover, Solomon asserts that she was subjected to a racially and sexually hostile working environment. After Solomon was discharged by Wardlaw, she contends that she was placed on State Farm's “do not rehire” list, and as a result discharged by Eberl. Solomon contends that State Farm's decision to place her on the “do not rehire” list was based on false information allegedly provided by Wardlaw. Solomon claims that Wardlaw's alleged disclosure of false information constituted unlawful retaliation and backlisting under Indiana law.

         Discussion

         Before addressing Wardlaw's motion for summary judgment, the court first must determine what evidence it may consider by addressing Wardlaw's motion to strike. Wardlaw has moved to strike certain portions of Solomon's supporting affidavit and exhibits. Wardlaw asserts that certain paragraphs in Solomon's affidavit and exhibits should be stricken because the statements contain inadmissible hearsay, lack foundation to show that Solomon has personal knowledge of the facts asserted, and lack relevance. Solomon did not file a response in opposition to the motion to strike.

         Wardlaw has moved to strike paragraphs 5, 10, 11, 13, 14, 16, 21, 26, 27, 28, 29, 38, and 39 of Solomon's affidavit because the statements contain inadmissible hearsay and are not predicated on personal knowledge. (DE 60-1). Hearsay is defined as a statement that is made outside of “the current trial or hearing” that “a party offers in evidence to prove the truth of the matter asserted in the statement.” Federal Rule of Evidence 801(c). Third party out of court statements may be hearsay. Solomon's affidavit includes statements from third parties. Solomon has not submitted an affidavit from those individuals in an attempt to avoid the hearsay problem.

         Moreover, 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) (quoting Visser v. Packer Eng'g Assoc., 924 F.2d 655, 659 (7th Cir. 1991) (en banc)) (“[A]lthough personal knowledge may include reasonable inferences, those inferences must be ‘grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.'”); see also Jenkins v. Heintz, 124 F.3d 824, 831 (7th Cir. 1997) (affiant ...


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