Vandeveer v. Fort James Corp.
| Citation | 192 F.Supp.2d 918 |
| Decision Date | 28 March 2002 |
| Docket Number | No. 00-C-1133.,00-C-1133. |
| Parties | Tracey Rae VANDEVEER, Plaintiff, v. FORT JAMES CORPORATION, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Scott C. Beiqhtol, Amy D. Katarincic, Michael Best & Friedrich, Milwaukee, for Defendant or Respondent.
On August 18, 2000, Tracey Vandeveer filed a pro se complaint in this court alleging that her former employer the Fort James Corporation ["Fort James"] discriminated against her in violation of the Americans with Disabilities Act ["ADA"], 42 U.S.C. § 12101 et seq., by failing reasonably to accommodate her multiple sclerosis ["MS"]-related workplace limitations. In the months this litigation has been pending the court has been called upon to resolve an unusually large number of motions. Currently before the court are four additional motions: cross-motions to strike proposed findings of fact, and cross-motions for summary judgment. The court will address each in turn.
For six months from August 3, 1998, to February 2, 1999, Ms. Vandeveer worked at Fort James as a customer service representative. Beginning in November 1998, Ms. Vandeveer experienced what she considered to be a stressful working environment. Specifically, one of her supervisors criticized her work on at least two occasions and eventually presented her with a written warning that should her performance fail to improve she would be terminated. She claims that her performance was satisfactory and that stress related to this allegedly unwarranted criticism exacerbated her multiple sclerosis to such a degree that she was forced to take disability leave. In fact, she claims that her physical condition deteriorated to such an extent that she lost her eyesight, thereby becoming largely dependent on her life partner, Peggy Vandeveer, for assistance in day-to-day living.
Before getting into the details of the case, the court must resolve the parties' competing motions to strike from the record certain proposed findings of fact. The court begins by noting that under the local rules of this district, parties are not required to file proposed findings of fact when one of the parties is proceeding pro se. See Civil L.R. 56.2 (E.D.Wis.). In such a situation, the court, in compliance with Federal Rule of Civil Procedure 56 decides any motion for summary judgment based on the admissible evidence in the record that has been brought to the court's attention via the parties' briefs. Here, however, the parties did elect to file proposed findings of fact. As such, the court will rely upon those when deciding the pending motions for summary judgment, provided, of course, that they are supported by admissible evidence. See Civil L.R. 56.2(d); (e)(E.D.Wis.).
Inadmissible evidence (or proposed findings of fact premised on inadmissible evidence) may be stricken from the record at a party's request. See Friedel v. City of Madison 832 F.2d 965, 971 n. 4 (7th Cir.1987). Evidence that is inadmissible includes affidavit testimony not based on personal knowledge, see Fed. R.Civ.P. 56(e), conclusory self-serving statements, see Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.2001), hearsay, see Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.1997), and irrelevant material, see Fed.R.Evid. 402. Proposed findings of fact not supported by independent record evidence are not themselves "evidence" and are not considered by the court. See Fed.R.Civ.P. 56(c)(motions for summary judgment are to be decided based on depositions, answers to interrogatories, admissions on file, and affidavits).
The defendant has combed the plaintiff's proposed findings of fact and has alleged that 153 of the 235 offered findings are inadmissible for one or more reasons and should be stricken from the record. The court has reviewed Ms. Vandeveer's proposed findings and agrees that a great many are, indeed, inadmissible. However, while some proposed findings suffer serious flaws such as a lack of support in the cited evidence, the most common flaw in Ms. Vandeveer's submissions is simple irrelevance. Further, in several instances the proposed facts are improperly supported by the evidence cited, but do have bases in other record evidence. On the whole, the problems with Ms. Vandeveer's submissions are not as extensive as alleged.
Unfortunately, the court does not have the judicial resources to rule individually upon each of the 153 items challenged by Fort James. In the interest of economy, irrelevant items will not be discussed at all. The remaining items will be addressed within the context of court's discussion of the background facts. Where appropriate the court will note that disputes exist regarding these items. As Ms. Vandeveer is a pro se litigant, the court will refrain from striking her submissions on technical or easily-corrected grounds. Cf. Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir.1998)(courts should give pro se pleadings a liberal construction, overlooking technical errors where possible). Where Ms. Vandeveer seeks to rely upon nonexistent or inadmissible evidence, however, the court will not refrain from striking the challenged material. In essence, then, the court will grant in part and deny in part Fort James's motion to strike, as described more fully below.
Ms. Vandeveer also filed a motion to strike material from the record. The brief she filed in support of her motion reads like an additional brief addressing summary judgment, however, and cites no case law in support of her position. As far as the court can tell, Ms. Vandeveer is requesting that four items be stricken: 1) all of Marilyn Peters's testimony regarding Ms. Vandeveer's alleged performance problems, 2) any load candidate reports that might address Ms. Vandeveer's performance, 3) a "CASI" report, and 4) Ms. Peters's final declaration.
The basis of Ms. Vandeveer's objections to Ms. Peters's testimony (whether in deposition or declaration form) is that Ms. Vandeveer believes it to be incorrect. This is not a proper basis for striking material from the record, however. Inconsistent recollections may create disputed issues of fact ultimately resolvable at trial, but they do not create a situation where one party's recollections may simply be jettisoned in favor of another's. To partake in the redlining suggested by Ms. Vandeveer the court would need to engage in a credibility determination-something the court is forbidden to do at this time. See Equal Employment Opportunity Comm'n v. United Parcel Serv., 94 F.3d 314, 319 (7th Cir.1996).
Ms. Vandeveer's objections to Ms. Peters's testimony suffer a further flaw in that they have been presented en gross. While there may (or may not) be evidentiary problems with particular statements made by Ms. Peters, Ms. Vandeveer has chosen to attack the testimony as a whole. The court does not have the resources to scour the record to determine what specific factual assertions may be objectionable and to determine for itself the bases for such objections. As such, the court will not engage in the hunting expedition proposed by Ms. Vandeveer. See generally Sachs v. Ohio Nat'l Life Ins. Co., 2 F.R.D. 348 (N.D.Ill.1942).
Ms. Vandeveer's remaining objections have the advantage of addressing specific evidentiary materials but nonetheless fail to persuade the court. Ms. Vandeveer has asked that the court strike any evidence that relies upon a "load candidate report" to show that Ms. Vandeveer was an under-performing employee, apparently on the grounds that such reports do not present a complete picture. The court hesitates to address this objection because Ms. Vandeveer's competence as an employee is not a dispositive issue in the court's decision today. As it is conceivable that it later would become one if the case were permitted to remain in this court, however, the court will direct one brief comment to Ms. Vandeveer's objection: The court has examined the material addressed by Ms. Vandeveer and has determined that the defendant has used it only to rebut Ms. Vandeveer's own attempted use of load candidate reports. To the extent the reports are admissible on behalf of either party (something the court chooses not address now), they would be admissible (or not) for use by both parties. The court will deny without prejudice Ms. Vandeveer's motion as it regards the load candidate reports.
Ms. Vandeveer's objection will be denied as to the CASI report, as well. It appears that the basis of Ms. Vandeveer's objection is that the report has not been "verified." While it is true that many sorts of evidence must be verified ("authenticated") before they may be considered by a finder of fact or a court resolving a summary judgment motion, see Fed.R.Evid. 901(a), the material disputed by Ms. Vandeveer has been verified in the most common manner—by sworn testimony that the item is what it is claimed to be, cf. Fed.R.Evid. 901(b)(1)(evidence may be authenticated through testimony of a witness with personal knowledge of the item). Ms. Peters has testified that she has personal knowledge that the CASI report is an actual and accurate report kept by Fort James. No more is required. The report is admissible (though will not be relied upon by the court as it is of little relevance). Ms. Vandeveer's motion to strike shall be denied in full. With those considerations addressed, the court will proceed to provide a fuller account of the facts underlying Ms. Vandeveer's lawsuit.
Ms. Vandeveer was preliminarily diagnosed with MS in 1991.1 At that time Ms. Vandeveer was working as a benefit analyst at Humana/Employers Health Insurance. Ms. Vandeveer has not drawn the court's attention to any facts suggesting that the symptoms2 that resulted in her preliminary diagnosis interfered with her work in any way. On May 21, 1997, however, Ms. Vandeveer did miss work as a result of symptoms consistent with MS. The court...
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