Darnell v. Target Stores
| Decision Date | 29 March 1994 |
| Docket Number | No. 93-1061,93-1061 |
| Citation | 16 F.3d 174 |
| Parties | 64 Fair Empl.Prac.Cas. (BNA) 53, 63 Empl. Prac. Dec. P 42,832, 27 Fed.R.Serv.3d 1341 George A. DARNELL, Plaintiff-Appellant, v. TARGET STORES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Raymond J. Hafsten, Jr. (argued), Indianapolis, IN, for plaintiff-appellant.
Richard A. Smikle, Ice, Miller, Donadio & Ryan, Indianapolis, IN, Robert L. Grossman (argued), Grossman & Millard, Minneapolis, MN, for defendant-appellee.
Before ESCHBACH, FLAUM, and KANNE, Circuit Judges.
George Darnell had a long career with his employer, "Target Stores," and its predecessor, "L.S. Ayres." He began working for L.S. Ayres in 1946, and by 1980 Darnell was a store manager for an Ayres discount spin off "Ayr-Way." In June of 1980 Darnell was demoted to assistant store manager. He no longer had responsibility for payroll, his pay was cut, and he was transferred to a store which had a lower volume of sales.
In the fall of 1980 Target purchased Ayr-Way. Darnell's title changed from assistant store manager to merchandise manager, while his duties remained essentially the same. In 1982 Darnell asked his district manager, Robert Martin if he could transfer to another store designated as T-102. His request was granted. Darnell claims that he asked to be transferred because he was told by a factory representative that the store manager, Tom Magill had a "program" to force him to retire.
Darnell was at store T-102 for two years, until it closed in 1984. At this time Darnell inquired about retirement. However district manager Richard Larson told Darnell he wanted Darnell to stay on. Darnell did stay on. He was transferred to store T-116, but he had not been there long before Larson asked Darnell to go to store T-112 to help with the Christmas season. Darnell was there for approximately five months. He liked working for T-112 store manager Linda Costello, in his view she was "marvelous" and they "got along beautiful."
Darnell returned to store T-116 for several months. In March of 1985, Larson approached him again, and told him that he wanted Darnell to go to store T-110 because he was having trouble with the store. Darnell took this as a compliment, perceiving himself as a valued troubleshooter. In March of 1985 Darnell was transferred to store T-110, where his supervisor was store manager Brenda Hickman.
Darnell did not like working for Hickman. However, he did not complain or otherwise notify district manager Larson about his difficulties with Hickman. He mentioned to regional personnel manager Nancy Laggard that Hickman did not like him. Darnell said that Laggard asked him not to retire. Darnell also complained to the other assistant manager at T-110, Herb Vanderploeg, about Hickman's treatment. Vanderploeg told Darnell that she treated him the same way.
In October of 1985 Darnell met with Larson. He told Larson that he could not work for Hickman anymore, and that he had decided to retire. Larson told Darnell that if he would agree not to retire, he would transfer Darnell to another store as soon as he could find a replacement. But Darnell stood firm with his decision to retire.
Darnell was not happy with the way his career at Target had ended. He filed a complaint alleging age discrimination with the EEOC in February 1986. After having failed to prevail before the EEOC, Darnell filed a suit in federal court under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621 et seq. and 29 U.S.C. Sec. 216.
Target, after taking Darnell's deposition, moved for summary judgment in March of 1989. Four months later, in July, Darnell filed a response to Target's motion for summary judgment relying on three affidavits, his own, and one each from his former coworkers Cathy Martin and Barbara Sisler. Darnell's response to the summary judgment motion made no reference to his own earlier deposition testimony, but relied entirely on the three affidavits. Target thereafter took the depositions of Sisler and Martin.
The district court denied Target's summary judgment motion in August, relying on the affidavits, and without reference to the depositions of Darnell, Sisler, or Martin. Then, in December of 1989, after receiving the parties' pre-trial material, the district court examined the affidavits and the deposition testimony of Darnell, Sisler, and Martin. After reviewing this material the district court sua sponte vacated its denial of Target's summary judgment motion, finding that the "affidavits were replete with hearsay and speculation" and that in their deposition testimony "Sisler, Martin and Darnell capitulated on their affidavit statements."
Darnell now asks us to reverse the district court's grant of summary judgment. 808 F.Supp. 1370 (1992).
The standard of review we apply when reviewing a district court's summary judgment decision is de novo. Witham v. Whiting Corp., 975 F.2d 1342, 1345 (7th Cir.1992). Fed.R.Civ.P. 56(c) states that a party is entitled to judgment as a matter of law if the pleadings, depositions, answers to interrogatories and affidavits "show that there is no genuine issue of material fact." Fed.R.Civ.P. 56(e) states that plaintiff must oppose defendant's motion with more than mere allegations or denials of the other party's pleading. The response must set forth "specific facts showing that there is a genuine issue for trial."
The issue we must resolve in this case is whether or not the district court, when faced by contradicting deposition testimony and affidavits from the same person, may grant summary judgment based on the facts revealed by the deposition testimony.
The controlling case is Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7th Cir.1985). At issue in Babrocky was "whether summary judgment is appropriate when a deponent contradicts in an affidavit an earlier admission of fact in a deposition that if true would entitle the moving party to a judgment." Id. In Babrocky the plaintiffs made admissions in deposition testimony which would have entitled the defendant to summary judgment. They subsequently sought to ameliorate the admissions by filing affidavits which contradicted the deposition testimony. The affidavit consisted of "bald assertions, entirely lacking in any recounting of specific facts such as required by Fed.R.Civ.P. 56(e)." Id. The district court in Babrocky determined that "conclusory allegations could not create a conflict with plain admissions in deposition testimony" and granted summary judgment. Id. This court affirmed the district court on appeal, noting that a "party should not be allowed to create issues of credibility by contradicting his own earlier testimony." Id.
This is precisely what Darnell attempts to do. For example, in his deposition he did not name any specific person as the chief instigator of the alleged program to terminate him. Then, in his affidavit, he specifically blamed Larson. Following Babrocky, the district court properly relied on Darnell's deposition testimony and disregarded Darnell's subsequent, contradictory affidavit. Inherently depositions carry an increased level of reliability. Depositions are adversarial in nature and provide the opportunity for direct and cross-examination.
The situation with Sisler and Martin is somewhat different from that of Darnell because they were deposed after filing affidavits. When they were deposed, they recanted all of the relevant elements in their affidavits. Martin's affidavit states that Darnell was excluded from "manager meetings." In her deposition she explained that she had seen the other managers drinking coffee together without Darnell present and that she had assumed that they were talking about business. Sisler similarly backed away from the specific allegations in her affidavit. In her affidavit she claimed that McGill had made demeaning statements about Darnell. In her deposition she said that she had not heard McGill make any demeaning statements about Darnell.
In Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1105 (7th Cir.1985) we held that "[p]arties cannot thwart the purpose of Rule 56 by creating issues of fact through affidavits that contradict their own depositions." Herein, though the timing is reversed, the rule is the same. Darnell cannot "create issues of fact" by relying on the affidavits of Sisler and Martin, which they contradicted in their own depositions.
More recently, in Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.1993), we held that "[s]elf-serving affidavits without factual support in the record will not defeat a motion for summary judgment." In Slowiak the affidavits in question were generated by plaintiffs after admissions they made in their own depositions signalled the imminent demise of their case. Similarly, in this case, Darnell enlisted Sisler and Martin to buttress his case after his own deposition proved to be a disaster for him. Their depositions were taken by Target soon after receiving their affidavits. Sisler's and Martin's deposition testimony showed their affidavits to be without factual support, and therefore they cannot defeat Target's summary judgment motion.
We find, consistent with the district court, that the affidavits of Martin and Sisler are without factual support in the record, specifically that they are contradicted by their own deposition testimony. Therefore, following Slowiak, they cannot defeat a motion for summary judgment.
The district court, having determined that there were contradictions between the affidavits and the depositions of the plaintiff, found the depositions to be the proper basis for its decision on the issue of summary judgment. The district court applied the facts found in the record to the relevant law to determine whether or not Darnell had raised genuine issues of material fact to support each of the...
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