United States District Court, N.D. Indiana, LaFayette Division
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
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.
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).
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
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
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.
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).
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).
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,
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.
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.
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.
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.
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