Opinion
CAUSE NO. IP 99-1338-C H/K
January 16, 2002
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND RELATED MATTERS
Plaintiff Jacqueline Haskins was fired after working for defendant New Venture Gear for a few months. Acting pro se, Haskins filed the present action asserting claims under several federal employment discrimination statutes. At this time, however, the operative pleading is the amended complaint filed on July 18, 2000, which asserts only a claim for retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The pleadings frame the issues in a case, subject to modification through pretrial orders. In paragraph 3 of the Entry issued on March 30, 2001, the court explained that the amended complaint filed on July 18, 2000, completely superseded the prior complaint. Claims presented in the original complaint are removed from the case by virtue of the filing of the amended complaint. This is the legal effect of the filing of an amended complaint, and neither party objected to or sought modification of application of this principle to the filing of the amended complaint in this case. Haskins' effort in her briefs to inject a claim never asserted in a pleading, a claim of retaliatory discharge under Indiana state law in violation of the principle announced in Frampton v. Central Indiana Gas Co., 297 N.E.2d 425, 428 (Ind. 1973), is improper and will be disregarded. The same is true as to Haskins' claim that her union did not represent her properly in certain grievances or in protecting her from mistreatment by the defendant. The union has never been a party to this case.
New Venture Gear seeks resolution of Haskins' claim through the entry of summary judgment. A number of other motions have been filed associated with the motion for summary judgment and claims extinguished through the filing of Haskins' amended complaint.
I. Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also, e.g., Liberles v. County of Cook, 709 F.3d 1122, 1126 (7th Cir. 1983) ("It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered.").
The party opposing summary judgment must do more than simply "show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 586. "It is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained." Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 366 (7th Cir. 1983). In light of the record in this case, it should also be noted that a party cannot create a genuine issue of fact merely by contradicting her own sworn testimony. E.g., Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995) (affirming summary judgment for employer despite employee's attempts to contradict earlier deposition testimony).
Haskins has filed with the court a "Report of Neuropsychological Examination" that she received. Docket No. 106. The document includes findings on a number of limitations and difficulties, including diagnoses of schizoid personality disorder, mild mental handicap, and agoraphobia with panic attacks.
Because Haskins is proceeding without counsel, the notice required by Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), was issued. Through this notice, Haskins was notified of the nature of the defendant's motion, the proper manner in which to respond, and the consequences of failing to respond. She has responded with evidentiary materials and a supporting brief.
II. Preliminary Matters
On October 27, 2000, Haskins filed a motion for protective order. In that motion, Haskins objected to the requested disclosure of the names of anticipated witnesses and also sought to have certain discovery sought by New Venture Gear determined to be outside the scope of permissible discovery. The motion itself reveals the names of at least some of the persons Haskins intended to call as witnesses. To the extent her motion sought any other relief, it is denied as moot in light of the resolution of New Venture Gear's motion for summary judgment directed to the amended complaint.
On December 1, 2000, Haskins filed a request for an enlargement of time in which to respond to New Venture Gear's first motion for summary judgment. Haskins' motion for an enlargement of time is denied as moot in light of the court's ruling in paragraph 3 of the Entry issued on March 30, 2001, denying the first motion for summary judgment as moot.
On November 12, 2000, New Venture Gear filed a motion to strike and to exclude insufficient affidavits submitted by Haskins. This motion was accompanied by New Venture Gear's motion to strike unverified material submitted by Haskins. Haskins has responded, in part, by stating unequivocally that she has not offered the affidavits of Travis Jones, Haskins herself, Michael Wright, Jermaine Bond, Louis Thompson, Nicole Watson, Rebecca D. Thompson, Dion Sloss, Jeffer Wright, Brandon Haskins, Dwight Jefferson, Tyson McCoy and Robert L. Thompson "to avoid summary judgment." Plaintiff's Response to Brief, filed April 10, 2001, at 1. She states that she has offered these affidavits to "prove to the Court the problems these employees have encountered" with New Venture Gear. She then states that her own affidavit includes material facts set forth in her response to the motion for summary judgment. Because the "problems" of New Venture Gear employees other than Haskins are not within the scope of Haskins' claim of retaliation (nor within the scope of the other claims included in the original complaint), defendant's motions to strike are granted to the extent that the affidavits of Travis Jones, Michael Wright, Jermaine Bond, Louis Thompson, Nicole Watson, Rebecca D. Thompson, Dion Sloss, Jeffer Wright, Brandon Haskins, Dwight Jefferson, Tyson McCoy and Robert L. Thompson are stricken.
Defendant's motions to strike are also granted to the extent that documents submitted by Haskins which are not authenticated will not be considered in resolving New Venture Gear's motion for summary judgment. When a party seeks to offer evidence through exhibits in conjunction with a motion for summary judgment, the exhibits must be identified by affidavit or otherwise be admissible. Martz v. Union Labor Life Insurance Co., 757 F.2d 135, 138 (7th Cir. 1985). "Supporting materials designed to establish issues of fact in a summary judgment proceeding `must be established through one of the vehicles designed to ensure reliability and veracity — depositions, answers to interrogatories, admissions and affidavits. When a party seeks to offer evidence through other exhibits, they must be identified by affidavit or otherwise made admissible in evidence.'" Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987), quoting Martz, 757 F.2d at 139.
The motions to strike are also granted to the extent that New Venture Gear seeks to have excluded from consideration in resolving its motion for summary judgment statements made by Haskins herself, even under oath, which are conclusory, which are statements of Haskins' opinion (as to either factual matters or legal effect), and for which there is no showing of her personal knowledge about the matters she sets forth. See Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1080-81 (7th Cir. 1992); Becker v. Tanenbaum-Hill Assocs., Inc., 914 F.2d 107, 112 (7th Cir. 1990). In addition, any portion of Haskins' affidavit consisting of inadmissible hearsay must be disregarded. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996); see also Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1265 (7th Cir. 1993); Russell v. Keyes Fibre Co., 771 F. Supp. 951, 957 n. 5 (N.D.Ind. 1991).
Accordingly, New Venture Gear's motions to strike filed on March 12, 2001, are granted to the extent set forth above.
On May 9, 2001, Haskins filed a request to subpoena employee records. This request was made after the time to complete discovery had passed and after Haskins had responded to the motion for summary judgment on the amended complaint. Her request has a stated purpose of seeking records involving certain New Venture Gear employees and a union. Haskins' claim in her amended complaint does not involve union or union/management issues, and her request fails to suggest that she would use or need the records sought in further opposition to New Venture Gear's motion for summary judgment directed to the amended complaint. Although there are circumstances under which specific and additional discovery may be required in order to provide a party a full and fair opportunity to oppose a motion for summary judgment, no such circumstances are present here. See United States v. On Leong Chinese Merchants Assoc. Bldg., 918 F.2d 1289, 1295 (7th Cir. 1990) ("A party invoking [Rule 56(f)'s] protections must do so in good faith by affirmatively demonstrating why he cannot respond to movant's affidavits . . . and how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.") (citation omitted). Under the circumstances just described, Haskins' request to subpoena more records is denied.
On May 4, 2001, Haskins filed a letter addressed to the clerk seeking assistance in obtaining employee records. These may or may not be the same items covered by the May 9, 2001, request to subpoena employee records. In either event, this request is covered by the discussion of the preceding paragraph and must be denied for the additional reason that Haskins seeks those records only in conjunction with claims not preserved in her amended complaint.
On May 11, 2001, New Venture Gear filed a motion for protective order. Under the circumstances described in the preceding paragraphs, the motion for protective order is granted.
On November 9, 2001, New Venture Gear filed a motion to strike Haskins' response to a motion to dismiss. This motion to strike is granted because no motion to dismiss is pending.
III. Undisputed Facts
For purposes of New Venture Gear's summary judgment motion, the following facts are either undisputed or reflect the actual evidence in the record (as distinct from unsupported rhetoric and conclusions) in the light reasonably most favorable to Haskins.
Haskins is an African-American female. Her employment by New Venture Gear began on October 27, 1997. She worked in Department 61B as a machine operator. In that position her duties were to operate a machine and to unload parts. Haskins' factory foreman was Paul Lemaster. During Haskins' employment, a collective bargaining agreement (CBA) was in place between New Venture Gear and United Auto Workers Local 499. The CBA provided, among other things, that violation of New Venture Gear's shop rules subjected an employee to disciplinary action ranging from reprimand to immediate discharge, depending upon the seriousness of the offense in the judgment of management. In November 1997, Haskins was reprimanded for producing 122 gears without running them through the chamfer.
Lemaster rubbed Haskins' right forearm for about six seconds on January 27, 1998, after Haskins had told Lemaster that she needed to see the nurse because of a knot on her arm. Lemaster told Haskins that if she ever needed anything, she should just let him know and he would get it for her. On four other occasions, Lemaster stood next to Haskins at her work station and was so close that she could feel his breath when she turned around. Also, Lemaster told her about a meeting that she was supposed to attend, but the meeting never took place and no other employees were told of the supposed meeting.
Haskins was fired on the afternoon of February 11, 1998. The stated reason for the termination was her violation of shop rule 18, which forbids the unnecessary making of scrap and careless workmanship. Haskins never saw the parts that Lemaster said had been improperly run on February 11, 1998. She testified in her deposition that she has no evidence supporting her belief that the assessment of her violation of shop rule 18 was invalid or a "phony" reason for the termination of her employment. Haskins Dep. at 208-09. She does, however, believe that she should have been shown the defective parts.
Haskins asserts that Lemaster and the general foreman "plotted, disparaged and belittled" her abilities when they stood and watched her work and tagged parts she had produced during her shift on February 10, 1998, just one day before she was fired.
Relevant to Haskins' retaliation claim, on February 11th, Haskins told Lemaster that she had some personal things to talk about or report to his supervisor, a Mr. Crouch. Lemaster replied that Crouch would not speak with her. Haskins Dep. at 97. Haskins never did tell Crouch about any alleged sexual harassment. Id. Prior to this time, on January 28, 1998, Haskins had written a letter addressed to a Mr. Vanleer, a supervisor, reciting certain problems she was having with Lemaster and seeking a transfer to another department. Although that letter was detailed in certain respects, the letter did not mention that Lemaster had rubbed Haskins' right arm the previous day, nor did it contain any reference to alleged sexual harassment of Haskins by Lemaster. See Haskins Dep. at 116 Def. Ex. 5.
Haskins testified in her first deposition that she never mentioned race, age, or sex discrimination to Vanleer. Haskins Dep. at 170 (March 28, 2000).
When Haskins was deposed again on August 28, 2000, after filing her amended complaint, she then claimed that she had talked with Vanleer about sexual harassment. Haskins Dep. at 25 (Aug. 28, 2000). When pressed for details, the testimony went like this:
Q And what did you say to him?
A I don't recall.
Q You don't recall what you said during that conversation?
A It could have — it couldn't have been the sexual harass [sic] then, because it hadn't happened. No, I just probably hand-delivered the letter to him.
Q So I'm still confused. A Not as confused as I am.
Haskins Dep. at 28 (Aug. 28, 2000). In light of Haskins' unequivocal testimony at her first deposition that she never mentioned sex discrimination to Vanleer, this confusing effort as part of her second deposition is not sufficient to raise a genuine issue of fact about whether she ever complained about sexual harassment to anyone in New Venture Gear's management. See, e.g., Russell v. Acme Evans Co., 51 F.3d at 67-68.
Lemaster's duties included evaluating Haskins' performance as a factory worker in Department 61B. Haskins' evaluations prior to the date of her termination had consistently included directions that she needed to improve. Lemaster's decision to terminate Haskins' employment on February 11, 1998, was based solely on Haskins' violation of shop rule 18 and her prior unsatisfactory performance. At the time Haskins was fired, Lemaster had no knowledge of any complaint by Haskins concerning sexual harassment. Similarly, at that time Vanleer also had no knowledge of Haskins' complaint of sexual harassment. She complained to him after she had been fired, see Haskins Dep. at 24, 30-31 (Aug. 28, 2000) Ex. F, but he obviously could not have spoken with Lemaster about Haskins' complaint of sexual harassment until after Haskins' employment had been terminated, after she made her complaint.
IV. Discussion
Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice to discriminate against an individual on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Title VII also protects persons from retaliation for complaining about the types of discrimination it prohibits. 42 U.S.C. § 2000e-3(a); Dey v. Colt Const. Dev. Co., 28 F.3d 1446, 1457 (7th Cir. 1994).
To survive summary judgment on a claim for retaliation, a plaintiff must come forward with evidence of a prima facie case, meaning evidence that would support findings: (1) that she engaged in statutorily protected activity; (2) that she suffered an adverse employment action; and (3) that the protected activity caused the employer to take the adverse action. See Hoffman-Dombrowski v. Arlington Int'l Racecourse, Inc., 254 F.3d 644, 653 (7th Cir. 2001). If Haskins establishes a prima facie case, the burden then shifts to New Venture Gear to articulate a non-retaliatory reason for the challenged action. See id. If New Venture Gear provides a legitimate explanation for the adverse employment action, the burden shifts back to Haskins to show that the proffered reason is a false pretext. See id. Haskins' claim of retaliation fails to survive New Venture Gear's motion for summary judgment for the following reasons.
The fit between retaliation claims and the adapted McDonnell Douglas framework (see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)), is not necessarily a comfortable one, however. See Bourbon v. Kmart, 223 F.3d 469, 475-76 (7th Cir. 2000) (Posner, J., concurring) (questioning conventional adaptation of McDonnell Douglas test to retaliation claims where plaintiff comes forward with evidence of "causal connection" between protected activity and adverse employment action). Because Haskins has no evidence of a causal connection here, this case does not require this court to address that problem.
First, to the extent this claim is based on Haskins' complaints of race and disability discrimination, the retaliation claim is not within the scope of her charge of discrimination filed with the EEOC, which alleged retaliation only for asking to speak to a supervisor about sexual harassment. See Amended Cplt. Exhibits; Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) ("a Title VII plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge"), citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974).
Second, Haskins has offered only the vaguest, and hence inadequate, evidence that she engaged in statutorily protected conduct — actually complaining to New Venture Gear about the conduct that she now claims was sexual harassment. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990) ("The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999) ("[S]tatements outside the affiant's personal knowledge or statements that are the result of speculation or conjecture or [are] merely conclusory do not meet this requirement."). As noted above, Haskins testified at her first deposition that she had not complained to Vanleer about sexual harassment before she was fired. Her later effort to contradict that testimony is not sufficient to raise a genuine issue of material fact on the point.
Third, there is no causal link — no "but for" relationship — between Haskins' firing and any arguably protected activity. The decision to fire Haskins was made by Lemaster. Haskins has no evidence that would support a finding that Lemaster knew of any such protected activity. The lack of such evidence is fatal to her claim. Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755-56 (7th Cir. 2000) (affirming summary judgment for employer on retaliation claim where plaintiff had no evidence that decision-maker knew of complaint); Oates v. Discovery Zone, 116 F.3d 1161, 1172-73 (7th Cir. 1997) (same).
Fourth, even if the court needed to reach the issue of pretext, New Venture Gear has shown without contradiction from Haskins that it had a legitimate non-discriminatory reason for terminating her employment — poor performance in making gears. That ends the matter unless Haskins comes forward with evidence that New Venture Gear's reason was a false pretext. Contreras v. Suncast Corp., 237 F.3d 756, 765 (7th Cir. 2001). She has not done so other than through her own assertions that her performance was adequate. However, these self-interested assertions cannot raise a genuine issue regarding the honesty of Lemaster's view of her performance, and the evidence shows that Lemaster had consistently said that her performance needed to improve. Haskins has not presented any evidence that New Venture Gear lied about its proffered reason for firing her. In her deposition, Haskins denied any knowledge of facts that would support such an argument. See Haskins Dep. at 208-09; see also Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998) ("In demonstrating pretext, a plaintiff must show more than that the employer's decision was incorrect; the plaintiff must also show the employer lied about its proffered explanation."). Haskins' statements about what evidence "could" be presented are ineffective at this critical juncture. "[M]otions for summary judgment must be decided on the record as it stands, not on a litigant's visions of what the facts might some day reveal." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
V. Earlier Claims
Though the court has previously ruled without objection from the parties, that the only claim in this action is the retaliation claim in Haskins' amended complaint, for the sake of completeness the court will address briefly the claims from the original complaint that were not preserved in the amended complaint.
Haskins originally asserted claims for disparate treatment based on her race, age, and asserted disability, claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 (ADA). The analytical framework for resolving such claims at the summary judgment stage is the same under each of these statutes, Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156-58 (3d Cir. 1995). In the absence of direct evidence of discriminatory animus, and with an exception not material here, the analysis is the burden-shifting analysis under McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). See Michas v. Health Cost Controls of Illinois Inc., 209 F.3d 687, 692 (7th Cir. 2000) (ADEA); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (ADA).
Applying that analysis, the court would have reached the following conclusions if the original claims had been preserved in the amended complaint. First, Haskins has not produced any direct evidence of race, gender, or age discrimination, nor of retaliation. Second, with respect to the hostile environment claim in particular, Haskins has no evidence that the harassment she alleges was based on her sex or that it was of such severity that it altered the conditions of her employment and created an abusive work environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) ("Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview."); Rizzo v. Sheahan, 266 F.3d 705 (7th Cir. 2001); Austin v. Minn. Mining Mfg. Co., 193 F.3d 992, 994 (8th Cir. 1999) (employee must establish causal connection between harassment and protected-group status); Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994) (noting that Title VII is directed against conditions in employment, not "against unpleasantness per se"). Third, with respect to the claims of race and gender discrimination under Title VII, Haskins was not performing her duties satisfactorily. She has not come forward with evidence that would allow a reasonable jury to find that a male or non-minority with a similar history of unsatisfactory performance was treated differently. Fourth, with respect to her claim under the ADA, Haskins was not an individual with a disability as defined by the ADA, see 42 U.S.C. § 12102(2), nor was she regarded as such, and there is no evidence that she suffered any adverse employment action because of her asserted disability. Fifth, apart from the absence of a prima facie case as to any of these claims, New Venture Gear had a legitimate non-discriminatory reason for terminating Haskins' employment — poor performance in violation of shop rule 18, which Haskins has not shown to be a pretext. See Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001) ("this issue of satisfactory job performance often focuses on the same circumstances as must be scrutinized with respect to the matter of pretext"); Contreras v. Suncast Corp., 237 F.3d 756, 765 (7th Cir. 2001).
Thus, even if Haskins' original claims had been preserved in the amended complaint, therefore, those claims would not have survived New Venture Gear's motion for summary judgment directed toward them. By the same token, of course, there are possible claims that were never part of this case, such as those noted in footnote 1 above, and the resolution of the case here should not be understood as an adjudication of them.
VI. Conclusion
However sincere her beliefs might be, plaintiff Haskins has not come forward with evidence that would allow a reasonable jury to find that she was fired because of any supposed complaints about alleged sexual harassment on the job. Accordingly, New Venture Gear's motion for summary judgment must be granted. Any motion not specifically discussed in Part II of this Entry is denied, and judgment consistent with this Entry shall now issue. The costs of this action are assessed against the plaintiff.
So ordered.
FINAL JUDGMENT
The court, having this day made its Entry granting defendant's motion for summary judgment, it is hereby ORDERED, ADJUDGED, AND DECREED that plaintiff Jacqueline Haskins take nothing by her complaint against defendant New Venture Gear, that this action is DISMISSED WITH PREJUDICE, and that the costs of this action are assessed against the plaintiff.