Kuntzman v. Wal-Mart

Decision Date20 November 2009
Docket NumberNo. 1:07 CV 209.,1:07 CV 209.
Citation673 F.Supp.2d 690
PartiesBethany KUNTZMAN, Plaintiff, v. WAL-MART, Defendant.
CourtU.S. District Court — Northern District of Indiana

Denise K. Larue, Jay Meisenhelder, Haskin & Larue LLP, Indianapolis, IN, for Plaintiff.

Shannon M. Shaw, Susan M. Zoeller, Barnes & Thornburg LLP, Indianapolis, IN, Shaun E. Graham, Barnes & Thornburg LLP, Fort Wayne, IN, for Defendant.


JAMES T. MOODY, District Judge.

Defendant Wal-Mart Stores East, L.P.1 ("Wal-Mart East") has moved for summary judgment (Def.'s Mot. for Summ. J., DE # 53) and to strike portions of plaintiff Bethany Kuntzman's ("Kuntzman"), sur-reply (Def.'s Rule 56 Mot. to Strike, DE # 66). As the motion to strike must be dealt with as a preliminary matter, the court will address it first.

Motion to Strike

After Wal-Mart East's motion was fully briefed, Kuntzman moved for leave to file a sur-reply claiming that Wal-Mart's reply brief in support of its motion for summary judgment "assert[ed] inapplicable jurisprudence and inaccurate factual claims." (Pl.'s Mot. for Leave to File Sur-reply in Opp. to Summ. J., DE # 62.) This court granted Kuntzman's motion for leave to file a sur-reply noting that much of defendant's reply brief contested the admissibility of evidence. (Order Granting Pl.'s Mot. for Leave to File Sur-reply, DE # 64.) Because Wal-Mart East did not file a separate motion addressed to admissibility of evidence as required by NORTHERN DISTRICT OF INDIANA LOCAL RULE 7.1, this court ruled that Kuntzman should have an opportunity to address admissibility of evidence. (Id.) Kuntzman filed her sur-reply. (Pl.'s Sur-reply, DE # 65.) Defendant has moved to strike sections D, E, F, G, H, and I of Kuntzman's sur-reply, arguing that they exceed the scope of the order allowing the sur-reply to be filed. (Def.'s Mot. to Strike, DE # 66.) Kuntzman denies this contention. (Pl.'s Resp. in Opp. to Def.'s Mot. to Strike, DE # 67.) The court now addresses the motion to strike.

While FED. R. CIV. P. 12(f) allows a court to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter," motions to strike are generally disfavored and usually only granted in situations in which the contested material causes some prejudice to the moving party. Rivertree Landing LLC v. Murphy, 246 F.R.D. 667, 667 (N.D.Ill.2007). While some courts have held that RULE 12(f) applies only to pleadings and does not allow the court to strike parts of motions or briefs on summary judgment, in practice motions to strike are often used to attack the use of inadmissable evidence at the summary judgment stage. Compare E.E.O.C. v. Admiral Maint. Serv., L.P., 174 F.R.D. 643, 645-46 (N.D.Ill.1997) (finding that summary judgment motions and the documents that support them are not pleadings and therefore are not subject to motions to strike pursuant to FED. R. CIV. P. 12(f)) with Officer v. Chase Ins. Life & Annuity Co., 478 F.Supp.2d 1069, 1073 (N.D.Ind.2007) (granting a motion to strike an exhibit to a summary judgment motion because it did not comply with RULE 56(e)).

NORTHERN DISTRICT OF INDIANA LOCAL RULE 7.1 only provides for filing of an initial brief, a response to that brief, and a reply brief. Therefore, courts have struck down both sur-replies filed without leave of the court and, when leave has been granted, parts of sur-replies that extend beyond the scope of the leave. Cleveland v. Porca Co., 38 F.3d 289, 297 (7th Cir.1994) (also suggesting that parties can move to strike parts of summary judgment reply briefs that raise new issues); Quade v. Kaplan, No. 06 C 1505, 2008 WL 905187, at *6-7, 2008 U.S. Dist. LEXIS 32467, at *19-20 (N.D.Ill. Mar. 31, 2008) (striking the portions of Kuntzman's sur-reply that went beyond what the court had given him leave to address).

In this case, while Wal-Mart East has labeled its motion to strike a "Rule 56 Motion," the document is not directed towards the admissibility of any evidence. (Def.'s Mot. to Strike 1.) Wal-Mart East moves to strike only arguments in Kuntzman's sur-reply. Wal-Mart East's sole argument for striking sections of Kuntzman's sur-reply is that they exceed the scope of the order granting leave for the sur-reply. (Id.) Wal-Mart East does not claim that the sur-reply causes it any prejudice, most likely because it does not appear to, that the sur-reply sections are redundant or immaterial, or that it needs an opportunity to respond to the sur-reply.

Sections D, E, F, and G of Kuntzman's sur-reply, as well as sections A-C which are not contested, all address the admissibility of evidence, thereby staying within the scope of this court's order. While section H does go beyond a discussion of the admissibility of evidence, Kuntzman argues there that she does not allege that her constructive discharge was based on the hostile work environment. (Pl.'s Sur-reply 6.) The court's consideration of this statement does not cause any prejudice to Wal-Mart East. The arguments in section I that extend beyond admissibility are not relied upon by the court.

For the foregoing reasons, Wal-Mart East's motion to strike (Def.'s Mot. to Strike, DE # 66) is DENIED.

Summary Judgment

Defendant Wal-Mart East, has moved for summary judgment against plaintiff Kuntzman. (Def.'s Mot. for Summ. J., DE # 53; Br. in Supp. of Def.'s Mot. for Summ. J., DE # 54.) Kuntzman has responded (Pl.'s Resp. in Opp'n of Summ. J., DE # 59), Wal-Mart East has replied (Def.'s Reply, DE # 61), and Kuntzman has filed a sur-reply (Pl.'s Sur-Reply, DE # 65). For the reasons explained below, the motion will be GRANTED in part and DENIED in part.


The facts discussed herein are either undisputed, or, when in dispute, resolved in favor of Kuntzman. Although this summary is largely based on the facts not in dispute, it should nevertheless not be taken as a statement of undisputed facts. The court has included some facts as Wal-Mart East sees them in order to explain the parties' dispute. But in ruling on the motion, the court has relied upon facts either not in dispute or, if disputed, resolved in favor Kuntzman.

A. Parties

Wal-Mart East is a subsidiary of the corporation Wal-Mart. Kuntzman was an employee of Wal-Mart East from 2001 until 2006, working for the company while in college. (Bethany Kuntzman Dep., App. to Br. in Supp. of Def.'s Mot. for Summ. J., DE # 55-4 at 20.)2 After completing her studies, Kuntzman quit working for Wal-Mart East and took a position as an accountant at Ernst & Young. (Kuntzman Dep., App. to Def.'s Br. 21, 102-03.)

B. Sexual Harassment Allegations

Kuntzman alleges that while she was working at the Vision Center of the Wal-Mart East location in Decatur, Indiana, she was sexually harassed by a coworker, complained of the harassment to no avail, and that, in retaliation, she was subjected to more harassment, her complaints were purposefully ignored, and she was wrongly accused of criminal activity.

Kuntzman's allegations center primarily around a male coworker named Bentley Boots ("Boots"), then an assistant manager at the Decatur location. According to Kuntzman, Boots sexually harassed her for an extended period of time, with the harassment continuing even after he was transferred to a different store. When the harassment began, shortly after the Decatur store opened in October 2005, it consisted primarily of "continual sexual comments" coming from Boots, such as comments about her body and requests to have sex. (Kuntzman Dep., Pl.'s App. to Resp., DE # 60-2 at 49-51.)

In December 2005, Boots, after apparently getting Kuntzman's cellular phone number from Wal-Mart's oil change service, began sending harassing text messages to her. (Id. at 53-55.) These messages were in addition to the sexually-tinged comments he would make to Kuntzman when he came by the store's Vison Center. (Id. at 55-56.) Boots would make sexual comments to Kuntzman, in person, about three or four times every workday. (Id. at 57-58.) Boots also harassed Kuntzman outside the workplace, once driving to her apartment complex, parking in her spot, and texting her that he wanted to have sex. (Id. at 62-63.)

The most egregious alleged harassment occurred in January 2006, when Kuntzman went into an unused office at the Vison Center, and Boots followed her inside, shut and blocked the door, demanded oral sex, and told Kuntzman that he wanted her to touch his penis. (Id. at 70-72.) According to Kuntzman, during this encounter, Boots blocked the door to the office for several minutes, until he finally relented and let Kuntzman leave. (Id.) In her complaint to the Equal Employment Opportunity Commission ("EEOC"), Kuntzman claimed that during this encounter, Boots also unzipped his pants, showed his penis to Kuntzman, tried to kiss her on the mouth, and grabbed her hand and forced her to touch his genitals. (Am. Charge of Discr. to EEOC, Pl.'s App. to Resp., DE # 60-3 at 2.)

Boots transferred to a different store at some point toward the end of January or beginning of February 2006, but, according to Kuntzman, continued to send sexually harassing text messages to her cellular phone. (Kuntzman Dep., App. to Def.'s Br. 117-19.) Through April 2006, Boots would still occasionally come by the Decatur store when she was working and try to talk to her and get her to "meet up with him." (Id. at 116; Kuntzman Dep., Pl.'s App. to Resp. 114-16, 140.) Kuntzman stated that she could not remember Boots having come to the store in May, that his last text message to her was in May 2006 and that he called the store once in May and talked to another employee. (Kuntzman Dep., Pl.'s App. to Resp. 140-41.) She has not provided evidence of any harassing conduct from Boots after May 2006.

C. Kuntzman's Complaints to Supervisors

Kuntzman alleges that she repeatedly complained to...

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