Lockwood v. McMillan

Citation237 F.Supp.3d 840
Decision Date24 February 2017
Docket NumberNo. 1:15–cv–01348–JMS–MPB,1:15–cv–01348–JMS–MPB
Parties Julie LOCKWOOD, Linda Mohr, Plaintiffs, v. Dan MCMILLAN in his individual capacity and in his official capacity as Clerk Treasurer, City of Beech Grove, Defendants.
CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)

Barry A. Macey, Quincy Erica Sauer, Macey Swanson and Allman, Indianapolis, IN, for Plaintiffs.

Cory Christian Voight, Matthew L. Hinkle, Coots Henke & Wheeler, P.C., Carmel, IN, James S. Stephenson, Rosemary L. Borek, Stephenson Morow & Semler, Indianapolis, IN, for Defendants.

ORDER

Hon. Jane Magnus–Stinson, Judge

Plaintiff Linda Mohr is the wastewater clerk in the office of the clerk-treasurer of the City of Beech Grove ("the City "). Plaintiff Julie Lockwood is the administrative assistant to the Mayor of Beech Grove, Dennis Buckley ("Mayor Buckley "). Defendant Dan McMillan was elected clerk-treasurer of Beech Grove in 2011 and took office in January 2012. The Plaintiffs allege that shortly after taking office, Mr. McMillan began harassing the Plaintiffs and other female employees based on their gender. The Plaintiffs have raised claims asserting that the City violated 42 U.S.C. § 2000e ("Title VII "), and that both the City and Mr. McMillan violated 42 U.S.C. § 1983 and the Equal Protection Clause of the United States Constitution by subjecting them to a hostile work environment, thereby discriminating against them based on their gender.

Presently pending before the Court are: (1) Motions for Summary Judgment filed by the City, [Filing No. 63 ], and Mr. McMillan, [Filing No. 68 ]; and (2) Mr. McMillan's objections to the admission of certain evidence, [Filing No. 96 ]. For the reasons that follow, the Defendants' Motions for Summary Judgment are granted, and the objections to the admission of certain evidence are overruled in part and sustained in part.

I. OBJECTIONS TO ADMISSIBILITY OF CERTAIN EVIDENCE AND STATEMENTS

Mr. McMillan objects to the admissibility of several pieces of evidence: (1) the resignation letters submitted by Brenda Michael and Janet Moore; (2) the Ogletree Report; and (3) certain statements contained within the Plaintiffs' statement of facts.

The Court emphasizes that whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). The evidence to which the parties cite must be admissible. Fed. R. C. P. 56(c)(2).

A. Resignation Letters

In support of their brief in opposition to the Defendants' Motions for Summary Judgment, the Plaintiffs submitted two exhibits at issue here: the resignation letters of Brenda Michael and Janet Moore, who are both former employees of the clerk-treasurer. [Filing No. 85–15 ; Filing No. 85–16 .] Mr. McMillan objects to the admissibility of these letters, contending that they constitute hearsay and are not subject to an applicable exception. The Plaintiffs respond that the statements are admissible under Federal Rule of Evidence 803(6), the "business records" exception to the hearsay rule.

The resignation letters are both in email form. [Filing No. 85–15 ; Filing No. 85–16 .] Ms. Michael's letter is addressed solely to Mr. McMillan, and Ms. Moore's letter is addressed to Mr. McMillan, his assistant Debbie Springer, Mr. Wiley, Mr. Bell, and Mayor Buckley. [Filing No. 85–15 ; Filing No. 85–16 .] Mr. McMillan stated in his deposition that he kept his own separate personnel files on the employees who worked in his office. [Filing No. 85–6 at 7 .] He testified that those records were kept in a locked file cabinet, which only he and Ms. Springer had access to. [Filing No. 85–6 at 7 .] The deposition testimony is not entirely clear, but it appears that Mr. McMillan wrote responses to resigning employees' resignation letters, which he placed into their personnel files. [Filing No. 85–6 at 16 .]

The Plaintiffs appear to acknowledge that the resignation letters constitute hearsay, in that they are out-of-court statements that are being introduced to prove the truth of the matters they assert. [Filing No. 99 at 3 .] Rule 803 creates exceptions to the hearsay rule, including Rule 803(6), which allows for the admission of:

[a] record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6).

In analyzing whether the letters fall within the 803(6) exception, the Court first finds that the letters were drafted by the employees based on their own personal knowledge. Mr. McMillan's deposition testimony supports the conclusion that records regarding personnel matters were kept in the course of his regularly conducted business activities, and that he was the custodian of those records. [Filing No. 85–6 at 16 ]; see also Corral v. Chicago Faucet Co. , 2000 WL 628981, at *3 (N.D. Ill. 2000) (concluding "the memo appears to have been produced by Chicago Faucet from Jolley's personnel file, which is enough for present purposes to authenticate the memo and perhaps enough to overcome a hearsay objection via either Fed.R.Evid. 803(6), as the memo is likely a business record of Chicago Faucet."). While the admission of a business record normally requires an affidavit "sworn to by a person who would be qualified to introduce the record as evidence at trial," Mr. McMillan's sworn deposition testimony is sufficient for that purpose. See Woods v. City of Chicago , 234 F.3d 979, 988 (7th Cir. 2000). Finally, Mr. McMillan does not show that the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness. Mr. McMillan simply asserts that "there is no exception to the hearsay rule to allow for these statements." [Filing No. 96 at 3 .] The Court concludes that, at this stage, the Plaintiffs have provided a sufficient showing of admissibility for the Court to consider Ms. Michael's and Ms. Moore's letters of resignation for purposes of summary judgment.

Mr. McMillan's objection to the Court's consideration of this evidence is OVERRULED.

B. The Ogletree Report

Mr. McMillan also objects to the Court's consideration of the Ogletree Report submitted by the Plaintiffs.1 [Filing No. 96 at 3–5 .] The Report was drafted by the Ogletree Deakins law firm, and was created based upon interviews conducted with a hand-picked selection of current and former City and clerk-treasurer employees. The interviews were conducted both in person and by telephone. The drafters also reviewed "some email communications between [Mr.] McMillan and others relating to employee resignations and [Mr.] McMillan's conduct towards current and former Beech Grove Employees." [Filing No. 85–18 at 2.] Approximately six of the Report's nine pages summarize the interviews conducted, and the final three pages describe options for addressing Mr. McMillan's (and his assistant's) behavior. [Filing No. 85–18.]

Mr. McMillan argues that the methodology used to create the Report is not sufficiently reliable for its admission under the "public records" exception to the rule against hearsay. [Filing No. 96 at 4 ]; see also Fed. R. Evid. 803(8)(iii). In addition, Mr. McMillan contends that the Plaintiffs have not shown that the Report was created pursuant to a legally authorized investigation, as required by the rule. [Filing No. 96 at 4 ]; see also Fed. R. Evid. 803(8)(A)(iii). And finally, Mr. McMillan argues that even if portions of the Report were admissible, the report's conclusions and opinions would not be admissible. [Filing No. 96 at 4 .] The Plaintiffs respond that the language "legally authorized investigation" refers only to criminal cases. [Filing No. 99 at 3 .] They also argue that Mr. McMillan has not shown that the Report lacks sufficient indicia of trustworthiness. [Filing No. 99 at 3 .]

Federal Rule of Evidence 803 enumerates several exceptions to the prohibition against hearsay, directing that statements falling within the exceptions are "not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness." Fed. R. Evid. 803. Subsection (8) provides that the record or statement of a public office is not excluded by the rule, if "it sets out ... in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation," Fed. R. Evid. 803(8)(A)(iii), and if "the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness." Fed. R. Evid. 803(8)(B). The proponent of the evidence bears the burden of establishing that it meets the Rule's requirements for admissibility. See Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 705 (7th Cir. 2009) (citing Bourjaily v. United States , 483 U.S. 171, 175–76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (holding that the proponent of hearsay evidence must prove to the court, by a preponderance of the evidence, that the Rules of Evidence have been satisfied)).

As for the requirements of subsection (A)(iii), the Plaintiffs first argue that the "legally authorized investigation" language applies only in criminal cases. The Court disagrees. The provision states that a report will be admissible if "it sets out ... in a civil case or against the government in a criminal case, factual findings from a...

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