Humes v. EMF Corp.
| Decision Date | 03 June 2011 |
| Docket Number | CAUSE NO. 1:10-CV-00070 |
| Parties | JUDY HUMES, Plaintiff, v. EMF CORP., Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
I. INTRODUCTION
Plaintiff Judy Humes, Rick Wells, and Vern Smith filed this suit against their former employer, Defendant EMF Corp., under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., asserting that EMF discriminated against them due to their age when it terminated their employment in a purported reduction in force ("RIF").1 (Docket # 1.) On December 1, 2010, the Court granted EMF's first motion for summary judgment in part and dismissed Wells's and Smith's claims. (Docket # 40.) Humes's age discrimination claim, however, survived the summary judgment motion because, after Humes established a prima facie case, EMF failed to produce a legitimate, non-discriminatory reason for including her in the RIF. (Docket # 40.)
Since EMF filed its first summary judgment motion well in advance of the dispositive motion deadline, the Court granted EMF leave to file a second motion for summary judgment pertaining to Humes's age discrimination claim. (Docket # 40.) Now before the Court is EMF'ssecond motion for summary judgment and corresponding motion to strike, seeking to dispose of Humes's claim. (Docket # 46, 55.) The motions are both fully briefed. (Docket # 47-51, 53-54, 56-59.)
Because Humes's opposition to the motion for summary judgment relies upon evidence subject to EMF's motion to strike, the Court will first turn to that motion. For the following reasons, EMF's motion to strike will be GRANTED IN PART and DENIED IN PART, and its motion for summary judgment will be GRANTED.
I. MOTION TO STRIKE
Federal Rule of Civil Procedure 56 states that affidavits filed in support of summary judgment "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." Fed. R. Civ. P. 56(c)(4). "An affidavit not in compliance with Rule 56 can neither lend support to, nor defeat, a summary judgment motion." Paniaguas v. Aldon Cos, No. 2:04-cv-468-PRC, 2006 WL 2568210, at *4 (N.D. Ind. Sept. 5, 2006) (citing Zayre Corp. v. S.M. & R. Co., 882 F.2d 1145, 1148-49 (7th Cir. 1989); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989)).
"[W]hen considering a motion to strike portions of an affidavit in support of a motion for summary judgment, courts will only strike and disregard the improper portions of the affidavit and allow all appropriate recitations of fact to stand." Id.; see also Stromsen v. Alumna Shield Indus., Inc., No. 89-C5036, 1993 WL 34727, at *4 (N.D. Ill. Feb. 8, 1993); Toro Co. v. Krouse, Kern & Co., 644 F. Supp. 986, 989 (N.D. Ind. 1986); CHARLES ALAN WRIGHT, ET AL., FEDERALPRACTICE & PROCEDURE § 2738 (3d ed. 2006). Specifically, the following statements are not properly included in an affidavit and should be disregarded: (1) conclusory allegations lacking supporting evidence, see DeLoach v. Infinity Broad., 164 F.3d 398, 402 (7th Cir. 1999); (2) legal argument, see Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir. 1985); (3) self-serving statements without factual support in the record, see Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999); (4) inferences or opinions not "grounded in observation or other first-hand experience," Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991); (5) mere speculation or conjecture, see Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999), and (6) statements or conclusions that "contradict prior deposition or other sworn testimony", without explaining the contradiction or attempting to resolve the disparity, see Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996) (collecting cases); Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7th Cir. 1985).
In its motion to strike, EMF seeks to strike portions of Humes's Affidavit, portions of the Affidavits of four other former employees, and Humes's exhibit offering her attorney's mathematical analysis of EMF's income statements. For the following reasons, EMF's motion will be granted in part and denied in part.
a. Paragraph 2. EMF seeks to strike as immaterial the second paragraph of Humes's Affidavit, which states that in 2008 she and her husband filed more than fifty claims for benefits with EMF's health insurance plan. Generally, an employer's attempt to reduce operating costs through cutting salary or benefit expenses is a legitimate, nondiscriminatory justification forterminating employees, provided it is not simply a proxy for age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 613 (1993). Here, Humes offers her medical claims experience as an arguable attempt to establish that EMF used medical costs synonymously with age. Because EMF's argument ultimately goes to the weight and not the admissibility of this evidence, however, see, e.g., Dority v. City of Chicago, No. 98 C 4893, 2001 WL 1155286, at *3 (N.D. Ill. Sept. 28, 2001), its motion to strike is DENIED concerning this paragraph.
b. Paragraph 5. Humes states in this paragraph that upon her information and belief, her employment file was removed from EMF shortly after she filed an EEOC charge. EMF seeks to strike this paragraph because it is not based upon Humes's personal knowledge but rather upon her "information and belief." Indeed, Federal Rule of Civil Procedure 56(c)(4) provides that affidavits "must be made on personal knowledge"; therefore, "[a]ffidavits based on 'information and belief—facts that the affiant believes are true, but which the affiant does not know are true—are not proper." Abdullah v. Frank, No. 04C1181, 2007 WL 636185, at *5 (E.D. Wis. Feb. 26, 2007) (citing Toro, 827 F.2d at 162-63; Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987)); see also Weiss v. Cooley, 230 F.3d 1027, 1034 (7th Cir. 2000) (). Therefore, the motion to strike is GRANTED with respect to paragraph 5.
c. Paragraph 7. Here, Humes states that at no time during her employment did Tami Kipfer, the substantially younger employee who absorbed her duties, "oversee" or "supervise" her work. EMF seeks to strike this statement, arguing that it contradicts Humes's depositiontestimony concerning Kipfer's coordination of the ISO-9000 Program2 in which Humes admitted that Kipfer would "tell [her] what things had to be done [and] . . . didn't have to be done." (Humes Dep. 37.) EMF's motion is DENIED, as Humes's statement in her Affidavit concerning supervision or oversight does not necessarily contradict her deposition testimony about her communications with Kipfer pertaining to the ISO-9000 Program tasks. See, e.g., DeCalonne v. G.I. Consultants, Inc., 197 F. Supp. 2d 1126, 1138 (N.D. Ind. 2002) (); see generally Osborn v. Consol. Rail Corp., No. 3:05CV161CAN, 2006 WL 37016, at *2 (N.D. Ind. Jan. 4, 2006) ().
d. Paragraph 8. Humes states in this paragraph that upon her information and belief Kipfer never held a "management" position with EMF. As discussed with respect to paragraph 5, an affidavit may not be made on "information and belief, and EMF's motion to strike this evidence is therefore GRANTED.
e. Paragraph 9. EMF's motion to strike the first sentence of paragraph 9, which states that upon her information and belief Kipfer never held the position of "Plant Clerk" at EMF's Angola facility, is also GRANTED for the reasons set forth with respect to paragraph 5 above. The motion is DENIED, however, as to the second sentence of paragraph 9, stating that "BettyLocke was Plant Clerk", since it is based upon personal knowledge, not information and belief.
a. Paragraphs 7, 8, and 12. EMF seeks to strike paragraphs 7, 8, and 12 of the Affidavit of Rick Wells, EMF's former Purchasing Manager, pertaining to his receipt of weekly reports on the status of the business, the cause of the Mississippi plant closure, and whether Kipfer ever held a "management" position, because they are conditioned upon Wells's information and belief. For the reasons set forth above with respect to paragraph 5 of Humes's Affidavit, the motion to strike is GRANTED.
b. Paragraphs 13, 14, and 15. Similarly, the motion to strike the first sentences of paragraphs 13, 14, and 15, concerning whether Kipfer was responsible for estimating, whether she ever held the "Plant Clerk" position, and whether she wrote job descriptions and work instructions, is GRANTED because they too are conditioned upon Wells's information and belief.
In contrast, the second sentences of those paragraphs—stating that Dave Daughterly was responsible for estimating, that Becky Locke was Plant Clerk, and that Kipfer as the ISO-9000 Coordinator was responsible for ensuring that the managers provided job descriptions and instructions—survive, since they are based upon personal knowledge, rather than information and belief. Wells was the Purchasing Manager for all EMF facilities (Wells's Aff. ¶ 2), and "[c]ommon sense dictates that if an affiant is an employee of a company, [he] has personal knowledge of events and circumstances that occurred at the company within [his] sphere of observation." Westchester Fire Ins. Co. v. Am. Wood Fibers, Inc., No. 2:03-CV-178-TS, 2006 WL 752584, at...
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