Myers v. Croell Redi-Mix, Inc.
| Decision Date | 04 December 2009 |
| Docket Number | No. 08-CV-2043-LRR.,08-CV-2043-LRR. |
| Citation | 672 F.Supp.2d 889 |
| Parties | Lois K. MYERS, Plaintiff, v. CROELL REDI-MIX, INC., Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Mark B. Anderson, Mark B. Anderson, PC, Cresco, IA, for Plaintiff.
Iris E. Muchmore, Leonard T. Strand, Simmons Perrine Albright Ellwood, Cedar Rapids, IA, for Defendant.
The matters before the court are Defendant Croell Redi-Mix, Inc.'s "Motion for Summary Judgment" ("Motion") (docket no. 15) and "Motion to Strike Certain Affidavits Submitted by Plaintiff" ("Motion to Strike") (docket no. 23).
On June 6, 2008, Plaintiff Lois K. Myers filed a Complaint (docket no. 2) against Defendant. In the Complaint, Plaintiff alleges that Defendant violated her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Specifically, Plaintiff alleges that Defendant discriminated against Plaintiff because of her sex. On August 21, 2008, Defendant filed an Answer (docket no. 5) in which it denied the substance of Plaintiff's claims.
On August 27, 2009, Defendant filed the Motion. On September 17, 2009, Plaintiff filed a Resistance (docket no. 20). On September 28, 2009, Defendant filed a Reply (docket no. 22).
That same date, Defendant filed the Motion to Strike. On October 9, 2009, Plaintiff filed a Resistance (docket no. 28) to the Motion to Strike. That same date, Defendant filed a Reply (docket no. 29).
The court has federal question jurisdiction over Plaintiff's Title VII claims. See 28 U.S.C. § 1331 ().
In the Motion to Strike, Defendant asks the court to strike two affidavits that Plaintiff submitted in support of her Resistance. The affidavits are from two former employees of Defendant, Misty Troester and Jon Leiran. Defendant argues that the affidavits should be stricken because Plaintiff failed to: (1) disclose these individuals as witnesses in the initial disclosures required by Federal Rule of Civil Procedure 26(a)1 and (2) identify Troester or Leiran in response to Defendant's interrogatory asking Plaintiff to "identify each person who has or claims to have any knowledge of the facts and circumstances relating to the allegations of the [C]omplaint." Def. Brief (docket no. 23-2) at 1.
Plaintiff concedes that she failed to disclose Troester and Leiran in her Rule 26(a) disclosures and discovery. However, Plaintiff argues that Defendant will not be prejudiced by the court's consideration of the affidavits. Plaintiff argues that, if the court denies the Motion, Defendant will have sufficient time to depose Troester and Leiran prior to trial. Trial in the instant action is currently scheduled for the two-week period commencing on January 19, 2010.
For purposes of the Motion, the court shall consider the Leiran and Troester affidavits. However, the court finds that, even when it considers the affidavits, Plaintiff fails to put forth sufficient evidence to create a genuine issue of material fact with regard to her Title VII claims. Accordingly, the court shall deny the Motion to Strike. In light of the fact that the court shall grant the Motion, the court finds that Defendant is not prejudiced by the court's consideration of the affidavits.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is genuine when `a reasonable jury could return a verdict for the nonmoving party' on the question." Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is material when it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "[T]o establish the existence of a genuine issue of material fact, `a plaintiff may not merely point to unsupported self-serving allegations.'" Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir.2008) (quoting Bass v. SBC Commc'ns, Inc., 418 F.3d 870, 872 (8th Cir.2005)). Rather, the nonmoving party "`must substantiate [its] allegations with sufficient probative evidence that would permit a finding in [its] favor.'" Anda, 517 F.3d at 531 (quoting Bass, 418 F.3d at 873). The court must view the record in the light most favorable to the nonmoving party and afford it all reasonable inferences. Baer Gallery, Inc. v. Citizen's Scholarship Found. of Am., Inc., 450 F.3d 816, 820 (8th Cir.2006) (citing Drake ex rel. Cotton v. Koss, 445 F.3d 1038, 1042 (8th Cir.2006)).
Procedurally, the moving party bears "the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2); see, e.g., Baum v. Helget Gas Prods., Inc., 440 F.3d 1019, 1022 (8th Cir. 2006) (). The nonmoving party must offer proof "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "`Evidence, not contentions, avoids summary judgment.'" Reasonover v. St. Louis County, Mo., 447 F.3d 569, 578 (8th Cir.2006) (quoting Mayer v. Nextel W. Corp., 318 F.3d 803, 809 (8th Cir.2003)).
Viewing the facts in the light most favorable to Plaintiff and affording her all reasonable inferences, the undisputed facts are as follows:
A. Parties
Plaintiff is a 54-year-old-female. She resides in Lawler, Iowa. Defendant is an Iowa corporation with its principal place of business...
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