Dobosz v. Quaker Chem. Corp.

• Decision Date: 16 August 2016
• Docket Number: CAUSE NO.: 2:15-CV-203-PRC
• Parties: THOMAS DOBOSZ, Plaintiff, v. QUAKER CHEMICAL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Indiana

THOMAS DOBOSZ, Plaintiff, v. QUAKER CHEMICAL CORPORATION, Defendant.

CAUSE NO.: 2:15-CV-203-PRC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

August 16, 2016

OPINION AND ORDER

This matter is before the Court on (1) Defendant Quaker Chemical Corporation's Motion for Summary Judgment [DE 21], filed by Defendant Quaker Chemical Corporation ("Quaker Chemical") on April 22, 2016; (2) Defendant Quaker Chemical Corporation's Motion to Strike the Unsworn Statements of Brian King and Thomas Dobosz [DE 33], filed by Quaker Chemical on June 21, 2016; and (3) Plaintiff's Motion to Substitute Exhibits [DE 34], filed by Plaintiff Thomas Dobosz on June 22, 2016. For the reasons set forth below, the Court grants the Motion for Summary Judgment in favor of Defendant and against Plaintiff on all claims.

PROCEDURAL BACKGROUND

Plaintiff Thomas Dobosz filed his Complaint in the Lake County, Indiana, Superior Court on April 15, 2015, alleging that Defendant Quaker Chemical, his former employer, discriminated against him based on his disability by refusing to provide a reasonable accommodation and by terminating his employment, discriminated against him based on his age by replacing him with a younger individual he had trained, and violated his due process and equal protection rights guaranteed by the United States Constitution.

Defendant Quaker Chemical removed the action to this Court on May 26, 2015, and filed an Answer on June 25, 2015.

Quaker Chemical filed the instant Motion for Summary Judgment on April 22, 2016. Dobosz filed a response on June 7, 2016, attaching the unsworn Declarations of Brian King and himself. Quaker Chemical filed a reply on June 21, 2016.

The same date, Quaker Chemical filed a Motion to Strike the Unsworn Statements of Brian King and Thomas Dobosz. In lieu of a response brief, Dobosz filed a Motion to Substitute Exhibits on June 22, 2016. In response to the Motion to Substitute and in reply in support of the Motion to Strike, Quaker Chemical filed a brief on June 24, 2016. Dobosz did not file a reply in support of the Motion to Substitute, and the time to do so has passed.

The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure require that a motion for summary judgment be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Summary judgment is appropriate when no material fact is disputed and the moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury couldfind for the other party based on the evidence in the record." Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).

A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R. Civ. P. 56 (a), (c). The moving party may discharge its initial responsibility by simply "'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08; Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).

"Once the moving party puts forth evidence showing the absence of a genuine dispute of material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating a genuine dispute." Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See Fed. R. Civ. P. 56(c)(1), (e); see also Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e) (1986)). Rule 56(e) provides that "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), thecourt may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it . . . ." Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.

In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765 (7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249-50.

MOTION TO STRIKE

In support of his response to the Motion for Summary Judgment, Dobosz submitted two declarations—those of himself and Brian King, a former employee of ArcelorMittal Steel.¹ Quaker Chemical asks the Court to strike both because they are undated, unsworn, and not made based on personal knowledge and to strike Dobosz's Declaration for the further reason that it conflicts with his prior deposition testimony.

In federal court, an unsworn declaration must be dated, made in writing, and subscribed by the declarant "as true under penalty of perjury." 28 U.S.C. § 1746. The Seventh Circuit Court of Appeals has stated that, "so long as the documents comply with 28 U.S.C. § 1746, and in the interests of justice, a district court should not be unnecessarily hyper-technical and overly harsh on a party who unintentionally fails to make certain that all technical, non-substantiverequirements of execution are satisfied." Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985) (emphasis added); see also Davis v. Wells Fargo Bank, 685 F. Supp. 2d 838, 842 (N.D. Ill. 2010) (quoting Knights v. Williams, No. 02 C 5017, 2005 WL 1838427, at *3 (N.D. Ill. July 28, 2005)) (internal quotation marks omitted).

Some courts have stricken unsworn and/or undated declarations for failing to comply with § 1746. See Kalra v. United States, No. 12-CV-3154, 2013 WL 1749385, at *3 (N.D. Ill. Apr. 23, 2013) (striking the unsworn declaration because it was not dated (citing Pfeil, 757 F.2d at 859)); Mitchel v. Buncich, No. 2:11-CV-91, 2013 WL 275592, at *4 (N.D. Ind. Jan. 24, 2013); see also Counts v. Kraton Polymers U.S., LLC, 260 F. App'x 825, 829 (6th Cir. 2008). However, the absence of a date may be excused when "extrinsic evidence demonstrates the approximate date of signing." Brown v. White's Ferry, Inc., 280 F.R.D. 238, 244 (D. Md. 2012) (citing Peters v. Lincoln Elec. Co., 285 F.3d 456, 475-76 (6th Cir. 2002) (citing EEOC v. World's Finest Chocolate, Inc., 701 F. Supp. 637, 639 (N.D. Ill. 1988))); see also Kennedy v. Schneider Elec., No. 2:12-CV-122-PRC, 2014 WL 4388147, at *1 (N.D. Ind. Sept., 5, 2014); Davis, 685 F. Supp. 2d at 842; Montgomery v. Ruxton Health Care, IX, LLC, No. 3:06-CV-24, 2006 WL 3746145, *3 (E.D. Va. Dec. 15, 2006).

In response to Quaker Chemical's Motion to Strike, Dobosz filed a Motion to Substitute, resubmitting the two declarations with the date June 2, 2016, typed on each. Counsel for Dobosz states in the Motion to Substitute that the "dates have been confirmed with the affiants." (Pl. Mot. 1). Because Dobosz's counsel confirmed the dates with Dobosz and King, the Court finds that Dobosz has provided extrinsic evidence to show that the declarations were signed on June 2, 2016, and, thus, denies the Motion to Strike on the basis that the declarations are undated. As a result, the Court denies as moot the Motion to Substitute.

Nevertheless, the Court finds that portions of both declarations are not made based on personal knowledge, as required by Federal Rule of Civil Procedure 56. See Fed. R. Civ. P. 56(c)(4) ("An 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."). In this case, both declarations "affirm under the penalties of perjury that the representations are true and correct to the best of my knowledge and belief." (Pl. Resp., Ex. 14, Ex. 15) (emphasis added). "Declaring that a person believes something or knows something to the best of one's knowledge is not equivalent to saying the person has personal knowledge." Estate of Cape v. United States, No. 11-C-0357, 2015 WL 5794209, at *2 (E.D. Wis. Oct. 2, 2015) (...