Prochaska v. Menard, Inc.

• Decision Date: 19 December 2011
• Docket Number: No. 10–cv–686–bbc.,10–cv–686–bbc.
• Citation: 829 F.Supp.2d 710
• Parties: Marvin PROCHASKA, Plaintiff, v. MENARD, INC., Defendant.
• Court: U.S. District Court — Western District of Wisconsin

829 F.Supp.2d 710

Marvin PROCHASKA, Plaintiff,
v.
MENARD, INC., Defendant.

No. 10–cv–686–bbc.

United States District Court, W.D. Wisconsin.

Dec. 19, 2011.

[829 F.Supp.2d 712]

Adrianna Salsbery Shannon, James Kaster, Nichols Kaster, PLLP, Minneapolis, MN, Michael Robert Fox, Fox & Fox, S.C., Madison, WI, for Plaintiff.

Michael J. Modl, Michael J. Westcott, Timothy D. Edwards, Axley Brynelson, LLP, Madison, WI, Ryan J. Steffes, Thomas J. Graham, Jr., Weld, Riley, Prenn & Ricci, S.C., Eau Claire, WI, for Defendant.

OPINION and ORDER BARBARA B. CRABB, District Judge.

The question in this case is whether defendant Menard, Inc. fired plaintiff Marvin Prochaska from his job as vice president of real estate because of plaintiff's age, in violation of the Age Discrimination in Employment Act. 29 U.S.C. § 623. Defendant has filed a motion for summary judgment under Fed.R.Civ.P. 56, in which it argues that no reasonable jury could find in plaintiff's favor. Dkt. # 39. In the alternative, it argues that plaintiff's damages should be limited under the “after acquired evidence” doctrine articulated in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). Because I conclude that genuine issues of material fact remain with respect to both questions, Fed.R.Civ.P. 56(a), I am denying defendant's motion for summary judgment.

PRELIMINARY ISSUES

Before setting forth the undisputed facts, there are a number of procedural matters I must address. First, defendant has filed a motion to substitute an exhibit it filed with its motion for summary judgment. Dkt. # 152. Because plaintiff does not oppose the motion, I will grant it. Second, defendant has filed motions to “strike” the testimony of Adam Ray and Debra Sands that plaintiff submitted with his summary judgment materials and a motion for leave to file a reply brief in support of the motion to strike Ray's declaration. Dkt. 122, 148 and 157. I am denying the motions related to Ray as moot because I did not need to rely on any of his testimony in deciding the motion for summary judgment.

Defendant raises several arguments for striking Sands's testimony. First, it says that she “claims that she provided legal services to Menard from 1998 to 2006,” so any information she learned about the company is protected by the attorney-client privilege. An initial problem with this argument is that defendant seems to be unwilling to concede that Sands even provided any legal services to defendant, presumably because of the litigation between defendant and Sands that defendant discusses repeatedly throughout its summary judgment submissions. Obviously, unless it is established that Sands had a lawyer-client relationship with defendant, I cannot find that she violated a privilege.

Even if I assume that Sands was employed by defendant as a lawyer and I assume that it would be appropriate to strike testimony that violated the privilege (defendant cites no authority on that point), defendant has not shown that it is entitled to relief. Sands may have been counsel for defendant, but she was John Menard's fiancée as well, so I cannot simply assume that any personal knowledge she gained in this case is attributable to her work as a lawyer for defendant. Defendant cites no evidence that this would be the situation. Further, as plaintiff points out, it was defendant who took Sands's deposition and elicited many of the answers it now wishes to strike, so it is likely that any potential privilege has been waived.

[829 F.Supp.2d 713]

Second, defendant says that one paragraph in Sands's declaration violates a protective order from a state court lawsuit in 2009 (involving defendant and Sands's sister) that prohibited her from “comment[ing] publicly about the pending litigation.” However, defendant cites no evidence to show that the other lawsuit is “pending” and cites no authority for the proposition that the proper remedy for a violation of that order is to exclude evidence in this case rather than seek relief from the issuing court. In any event, this argument is moot because I did not rely on the testimony in that paragraph.

Finally, defendant says that Sands's testimony is inadmissible under the Federal Rules of Evidence. However, as the Court of Appeals for the Seventh Circuit has reminded parties on multiple occasions, a motion to “strike” is not the appropriate vehicle for raising an evidentiary objection. E.g., Wiesmueller v. Kosobucki, 547 F.3d 740, 741 (7th Cir.2008); Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725 (7th Cir.2006); Redwood v. Dobson, 476 F.3d 462, 470–71 (7th Cir.2007). “If [a party] believe[s] any of the averments in [an] affidavit [a]re inadmissible, the proper response [i]s not to move to strike the affidavits themselves, but to dispute each of the facts proposed by [the other party] that relied on those affidavits, on the ground that the proposed facts [a]re not supported by admissible evidence.” Stocker v. Kalahari Development, LLC, 2007 WL 1140246, *1 (W.D.Wis.2007). Defendant repeated its objections in the context of its responses to plaintiff's proposed findings of fact and I considered them individually in that context.

This leads to the last procedural issue. Although the parties submitted nearly 500 proposed findings of fact, most of them were inadmissible or unhelpful. Because the problems with both sides' submissions were numerous, I will identify the most common ones so that the parties understand why so many of their proposed findings have been omitted and to help counsel prepare for any future motions they may file in this court.

The biggest problem on both sides was that counsel submitted many proposed findings of fact that lacked any probative value because they were vague or conclusory. E.g., Plt.'s PFOF ¶ 28, dkt. # 113 (“Mr. Prochaska's loyalty to the company was also unparalleled.”); id. at ¶ 90 (“John Menard made several comments at this party that in retrospect Mr. Prochaska realizes were critical of his age.”); Dft's PFOF ¶ 19, dkt. # 56 (“Menard strictly and consistently enforces its anti-fraternization and conflict of interest policies.”); id. at ¶ 146 (“Prochaska's leadership over his team members was ‘lackluster at best’ and he really provided ‘no oversight to the group of people at all.’ ”). What were these comments about plaintiff's age? What is the evidence for the alleged “strict and consistent” enforcement of defendant's policies? In the context of a motion for summary judgment, the parties must provide specific facts to support their positions, not conclusory allegations. Cedar Farm, Harrison County, Inc. v. Louisville Gas and Electrical Co., 658 F.3d 807, 812 (7th Cir.2011); Hall v. Bodine Electrical Co., 276 F.3d 345, 354 (7th Cir.2002).

Other problems plagued plaintiff's proposed findings of fact in particular. Many lacked foundation, mischaracterized the cited evidence, included argument about the evidence, made sweeping generalizations from specific examples or consisted of long excerpts from depositions rather than a proposal of a specific fact. E.g., Plt.'s PFOF ¶ 64, dkt. # 113 (“[John Menard] also did not enjoy being around other individuals who were of his vintage, because it reminded him of his own progressing age.”) (citing testimony of Debra

[829 F.Supp.2d 714]

Sands); id. at ¶ 83 (“With a complete lack of a checks-and-balances system to prevent a pattern and practice of age discrimination ...”); id. at ¶ 84 (citing long deposition excerpt); id. at ¶ 170 (“Perhaps realizing how incredible this proffered brochure rationale was, Mr. Collette attempted to expand his asserted reason for the termination to allege a failure to have an established overall marketing plan.”) (citing document prepared by defendant that includes none of these characterizations). In addition to these problems, both sides proposed many facts that were irrelevant to the issues raised in defendant's motion for summary judgment. E.g., Plt.'s PFOF ¶ 53, dkt. # 113 (citing defendant's own deposition testimony that he “used the same bathroom” as John Menard); Dft.'s PFOF ¶ 234, dkt. # 56 (“Ms. Hammersmith identified the Anti–Discrimination Policy and affirmed that Menard takes this policy very seriously.”) I have disregarded all of those facts.

Counsel is reminded that each proposed finding should relate to one discrete, specific fact that is supported directly by the cited evidence without any need for drawing inferences or making interpretations. If the parties wish to make arguments about what the facts mean or how they support that party's position, they should do that in the briefs.

From the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

UNDISPUTED FACTS

Plaintiff Marvin Prochaska was born in 1948. In 1965, while still in high school, he began working for defendant Menard, Inc., which operates a chain of home improvement retail stores throughout the Midwest. Plaintiff started as a lumberyard foreman and was later promoted to store manager.

John Menard, then chief executive officer and owner of the company (now the president), asked plaintiff to manage and plan real estate for the entire company. Some time in the 1970s, plaintiff received the title “vice president of real estate,” which made him responsible for site selection of the stores, among other things. From 1972 to the present, defendant grew from four to 250 stores.

In 2002, plaintiff attempted to tender his resignation because he believed “his position and compensation had stalemated,” Plt.'s PFOF ¶ 3 9, dkt. # 113, but he decided to stay after Menard offered to double his salary, from $110,000 to $220,000. Plaintiff was 54 years old at the time.

Charles Menard was defendant's chief operating officer from 2004 to 2007. He did not have authority to fire anyone without John Menard's approval. In Charles Menard's view, plaintiff had no performance problems. In 2007, Charles Menard was terminated for...