Matthews v. Waukesha Cnty.

• Decision Date: 28 March 2013
• Docket Number: Case No. 10–C–440.
• Citation: 937 F.Supp.2d 975
• Parties: Bernadine E. MATTHEWS, Plaintiff, v. WAUKESHA COUNTY, Debbie Rapp, ABC Insurance Company, and XYZ Insurance Company, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

937 F.Supp.2d 975

Bernadine E. MATTHEWS, Plaintiff,

v.WAUKESHA COUNTY, Debbie Rapp, ABC Insurance Company, and XYZ Insurance Company, Defendants.

Case No. 10–C–440.

United States District Court,

E.D. Wisconsin.

March 28, 2013.

David F. Loeffler, Krukowski & Costello SC, Milwaukee, WI, Paul A. Kinne, Gingras Cates & Luebke SC, Madison, WI, for Plaintiff.

Amy J. Doyle, Mary E. Nelson, Raymond J. Pollen, Crivello Carlson SC, Milwaukee, WI, for Defendants.

DECISION AND ORDER

RUDOLPH T. RANDA, District Judge.

The Plaintiff, Bernadine E. Matthews (“Matthews”), an African–American woman, filed this employment discrimination action against the Defendants, Waukesha County (“County”) and Debbie Rapp (“Rapp”), a human resources assistant for the County (collectively the “Defendants”). Matthews claims that she was not hired for job vacancies as an Economic Support Specialist (“ESS”) with the County Department of Health and Human Services (“HHS”) in January 2006 and April 2006 because the Defendants discriminated against her on the basis of her race.

Matthews asserts violations of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., against the County (first cause of action); 42 U.S.C. § 1981 against the County and Rapp (second cause of action); and the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983 against the County and Rapp (third cause of action).

This Decision and Order addresses the Defendants' motions to strike portions of the Matthews declaration and attached exhibits,and the entire declarations of Rhonda Graves (“Graves”), and Lilley Wilson (“Wilson”), and to strike Matthews' expert witness Mary Gray (“Gray”), and their amended motion for summary judgment dismissing this action.

MOTION TO STRIKE DECLARATIONS & EXHIBITS

The Defendants request that portions of Matthews' 31–page declaration consisting of 145 paragraphs, and exhibits 4 through 28, 31 through 47, and 49 through 52 ¹ attached to Matthews' declaration be struck.² They also request that the declarations of Graves and Wilson be struck.

The Defendants contend that a number of paragraphs in the Matthews declaration and the entire declarations of Graves and Wilson should be struck because they are not cited by Matthews in her response to the Defendants' proposed statements of fact (“PSOF”) and Matthews' proposed findings of fact (“PFOF”).

Civil Local Rule 56(b)(9) states that collateral motions, such as motions to strike, are disfavored. The Committee Comment to the Rule also states that whenever possible all arguments relating to the other party's submissions should be contained in a memorandum. Furthermore, to the extent that an individual's averments are not cited or relied upon in proposed findings of fact, they are immaterial to the summary judgment process.

Additionally, Matthews states that exhibits 5, 6, 8, 10 through 12, 17 through 8, 20 through 24, 26, 35 through 45, and 48 to her declaration are also attached to the Kinne affidavit. The Defendants have not objected to those exhibits, and they are part of the record before the Court. For those reasons, the portions of the motions to strike that address evidence not material to the outcome of the motion for summary judgment are denied as moot.

Exhibits 4, 7, 27, 28, and 32 attached to the Matthews declaration are described as newspaper articles. Those exhibits are struck. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.1997) (holding newspaper articles are hearsay.) With respect to the remainder of the exhibits—exhibits 1 (Matthews' employment application packet); 9 (a letter from the DOJ to Waukesha County), 13–16, 19 (employment applications), 25 (interview notes), 31 (County's response to DOJ),³ 46 and 47 (employment applications); and 50 through 53 (deposition summaries prepared by Matthews), the Defendants offer a number of general objections. However, having considered Matthews' response to the motion and the lack of specificity of the motion, the Court declines to strike the remaining exhibits. Even if Matthews has not established sufficient foundation for some of the exhibits, it is likely she could do so at trial and the evidence challenged as hearsay is not offered for the truth of the matter asserted.

The Defendants also object to paragraphs 34, 38 through 61, 69, 70, 112, 113, 115 through 122, 124, 125, 127, and 139 of the Matthews declaration on the grounds that they are “riddled with inadmissible hearsay and self-serving, irrelevant and inadmissible commentary, opinions and conclusory statements.” (Defs. Mot. Strike Decl. Matthews, Graves, & Wilson 3.)

Under Rule 56, “[a]n 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.” Fed.R.Civ.P. 56(c)(4). Payne v. Pauley, 337 F.3d 767, 771 (7th Cir.2003) holds that even self-serving affidavits can be enough to defeat summary judgment, provided that they allege facts (and not conclusions) and otherwise comply with Rule 56(c)(4). Although “self-serving statements in affidavits without factual support in the record carry no weight,” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir.2004) (emphasis omitted), “a self-serving affidavit supported by facts in the record [can] defeat summary judgment,” and the record “may include the self-serving affidavit itself, provided that the affidavit meets the usual requirements for evidence on summary judgment—including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there was a genuine issue for trial.” Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir.2004) (quotation marks and citations omitted).

Federal Rule of Evidence 401 provides that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed.R.Evid. 401; United States v. Boros, 668 F.3d 901, 907 (7th Cir.2012). “Rule 402 provides the corollary that, with certain exceptions, ‘[r]elevant evidence is admissible’ and ‘[i]rrelevant evidence is not admissible.’ ” Id.; see alsoFed.R.Evid. 402.

“Admissibility is the threshold question because a court may consider only admissible evidence in assessing a motion for summary judgment.” Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009) (citing Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir.2003) (inadmissible evidence will not overcome a motion for summary judgment)). See also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996) (evidence relied upon at the summary judgment stage must be competent evidence of a type otherwise admissible at trial).

The Defendants also raise challenges under Rule 403, which provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” “[W]hile it is not unheard of to exclude evidence under Rule 403 at the summary judgment stage, see, e.g., Weit v. Continental Ill. Bank & Trust Co., 641 F.2d 457, 467 (7th Cir.1981), normally the balancing process contemplated by that rule is best undertaken at trial itself.” See Adams v. Ameritech Servs., Inc., 231 F.3d 414, 428 (7th Cir.2000). At this juncture in the case, the Court declines to exclude any of the challenged evidence on Rule 403 grounds.

The Defendants ask that paragraph 34 of the Matthews declaration be struck. The paragraph states:

After I filed the charge, [the] County changed its story. [The] County said I met the qualifications and I was referred.At the same time, [the] County was telling the EEOC that I did not meet the qualifications. To try to make me look unqualified, [the] County omitted my Associates Degree in Social Work from what it submitted to the EEOC. (That submission is attached as Exhibit 6). By giving this false submission, [the] County tried to make me look like I had only a Bachelors Degree, but that Julie Vetter had an Associates Degree and a Bachelors Degree. After I filed the charge, no one provided me with any information that my application was referred. I received nothing in writing or orally indicating that my application had been referred.

(ECF No. 88). Exhibit six to the Matthews declaration is a September 22, 2008, supplemental letter response from the County to the EEOC regarding Matthews' EEOC charge against it, and states that a copy of Matthews' “application and resume are attached” as exhibit four. (Ex. 6, 2.) (ECF No. 88–6.)

Matthews states that she relies, in part, on paragraph 34 to dispute paragraph 61 of the Defendants' PSOF which states that the County told Matthews her application would be forwarded to the hiring authority.⁴ (Pl.'s Br. Opp'n Defs. Mot. Strike Decls. 3.) (ECF No. 98.) Those portions of paragraph 34 stating that Matthews never received any notification from the County that her application had been referred are based on her personal knowledge and set out facts that would be admissible in evidence. Therefore, the motion to strike is denied as to those portions of paragraph 34.

Matthews argues that in the “majority of” paragraphs 38 though 61 she cites to facts about which she has personal knowledge because most recite facts taken directly from the applications for the ESS position which, according to the County were the sole basis upon which the applicants were grouped. She also states that she is using those facts to show the County's knowledge, not the truth of the matter asserted, so they are not hearsay. She also states that her opinions in the paragraphs are admissible as lay opinions under Rule 701.

Paragraph 38 states that Matthews found many problems with Luann...