Opinion
NA 97-1762-C-B/G
March 8, 2001
ORDER DENYING PLAINTIFF'S MOTION TO ALTER AND CLARIFYING PRIOR RULING ON DEFENDANT'S MOTION TO STRIKE
This litigation arose out of the unhappy termination of Rita Manning's employment at The Medical Center of Southern Indiana ("MCSI" or "the Hospital"). The Court's decision granting summary judgment to Defendant and ruling on Defendant's Motion to Strike Plaintiff's Surreply ("Motion to Strike") was issued on September 29, 2000 ("the Entry"). Manning v. Charlestown Hosp., Inc., 2000 WL 1469352 (S.D. Ind. Sept. 29, 2000). Plaintiff then filed a "Motion to Alter, Amend, or Vacate Judgment and to Find Facts Under Rule 56(d)" ("Motion to Alter") and a "Motion to Reconsider or Clarify Ruling on Defendant's Motion to Strike." For the reasons set forth below, Plaintiff's Motion to Alter is DENIED. The Court's prior ruling on Defendant's Motion to Strike is also CLARIFIED as set forth below.
The full story of the facts in this case can be found at Manning, 2000 WL 1469352, *1-*5, and will not be repeated here.
Plaintiff's Motion to Alter
The arguments put forth in Plaintiff's briefing in support of her Motion to Alter, boil down to two main complaints about the Court's decision of September 29, 2000. First, Manning contends that the Court ignored the impact of Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Memo to Alter at 1. Second, Manning complains that the Court failed to take account of evidence that she was treated differently from male managers at the Hospital. Id. at 4. Plaintiff submits that this evidence establishes pretext and that the evidence, had it been considered, would have required the Court to reject Defendant's summary judgment motion. In the lengthy process of distilling Plaintiff's numerous, but often poorly-developed arguments, the Court did not succeed in addressing all of them in the original opinion. We take Plaintiff's Motion to Alter as an opportunity to address these two omissions at this time.
Interpreting Reeves
According to Plaintiff, the first way in which the Court ignored Reeves is in imposing a "virtually insurmountable standard of proof on Plaintiff not required by Title VII and specifically prohibited by the Supreme Court in Reeves." Memo. to Alter at 1. Specifically, Plaintiff's position is that Reeves establishes that "[d]ishonesty as to any single reason proffered by the employer is a sufficient basis for a jury to infer an unlawful motive." Reply at 2 (emphasis in original). For instance, in the Entry of September 29, 2000, the Court found that Manning had created a genuine issue of material fact as to whether Defendant's claim that the Hospital fired her because she insulted Kevin Miller, Hospital CEO, was pretext. Manning, 2000 WL 1469352, at *15. Plaintiff's argument under Reeves is that finding this reason to be pretextual should preclude summary judgment even though the Court did not find that Manning had created a genuine issue of material fact as to whether the other reasons Defendant gave for firing her were pretextual.
The Court does not read Reeves so expansively. Neither does the Seventh Circuit. In Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000), the Seventh Circuit rejected this same argument, stating that:
The Court feels compelled to remind counsel for Plaintiff that Seventh Circuit precedent is controlling in this jurisdiction. Plaintiff's briefs cite almost exclusively to Reeves and fail to examine (or even mention) Seventh Circuit interpretation of this recent Supreme Court ruling.
Kulumani [the plaintiff] pins his hopes on the proposition that if doubt can be cast on any part of the employer's [decision making] process, then the trier of fact may deem the whole explanation a pretext for discrimination. Reeves makes it clear, however, that pretext means a dishonest explanation, a lie rather than an oddity or an error.
(citation omitted). A more recent opinion from the same court states this proposition even more succinctly and clearly establishes that Kulumani was not a fluke. Walker v. Glickman, 2001 WL 194510, at *5 (7th Cir. Feb. 27, 2001), cites with approval the holding of Russell v. Acme Evans Co., 51 F.3d 64, 69 (7th Cir. 1995) that "the fact that one reason is successfully called into question by the plaintiff does not defeat summary judgment for the employer if at least one reason for the employer's actions stands unquestioned." Based on this argument, Reeves does not grant Plaintiff a second chance at surviving summary judgment.
Manning's second argument under Reeves avails her no better. Manning complains that the Entry disregarded several sexist comments made by the decision makers at the Hospital. Memo. to Alter at 3. She argues that by disregarding these comments, the Court failed to draw all reasonable inferences in favor of the nonmoving party, in contravention of Reeves. Id. at 3-4. Plaintiff is correct to note that Reeves admonishes courts to pay attention to discriminatory remarks made in the workplace. Reeves, 120 S.Ct. at 2110-11 (suggesting that circuit court improperly ignored comments that plaintiff "was so old he must have come over on the Mayflower" and that he "was too damn old to do his job" in age discrimination case). However, the comments in this case differ from those in Reeves.
Wayne Obertate reportedly said, "women cannot do anything" and "women will never be smart enough to do the things that men do." Affidavit of Connie Cook, ¶ 12. Obertate and Miller, in reference to a 1950s home economics textbook, joked, "This is the way women should be now, waiting on the man." Manning Depo. Vol. II at 133, lines 11-19. Neither of these comments is specific to Manning or to her job performance as "too damn old to do his job" clearly was to the plaintiff in Reeves and to his work performance. As the Seventh Circuit has stated, "one rude comment from the supervisor . . ., while certainly not to be commended, does not amount to evidence of [sex] discrimination, even after Reeves." Massey v. Blue Cross-Blue Shield of Illinois, 226 F.3d 922, 926 (7th Cir. 2000) (emphasis added). In short, we did not ignore these foolish comments. We simply find that they do not permit the reasonable inference of discrimination.
Comparison with Other Managers
The Court next considers Plaintiff's argument that we failed to address evidence about the treatment of male managers at the Hospital that would have established pretext. As discussed in Manning, 2000 WL 1469352, at *2, Marc Curtis, the MCSI employee who replaced Manning as Director of Materials Management in the spring of 1995, was accused of sexual harassment and safety violations by Joie Truman (now Joe Shields) in 1994. The parties dispute the manner in which the Hospital handled these allegations. According to Defendant, Miller investigated by questioning other employees. Miller Depo. at 108. Plaintiff challenges this characterization of events, claiming that Truman had asked employees if Miller had spoken with them about Curtis's behavior and had learned that the employees had not been questioned. Truman Aff., ¶ 9. On this basis, Plaintiff compares the rather thorough investigation of the complaints from the laboratory staff with the relative lack of follow-up on the allegations made against Curtis. She argues that the comparison is evidence of disparate treatment.
The plaintiff in Spath v. Hayes Wheels Int'l-Indiana, Inc., 211 F.3d 392, 396-97 (7th Cir. 2000), also argued that his employer "engaged in different methods of investigation" for employees in the protected class and employees not part of the protected class. To evaluate this contention, the Seventh Circuit required that the plaintiff and the other employee to whom the plaintiff sought to compare himself had to be "similarly situated in all respects." Id. at 397. Determining whether two employees are similarly situated "normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). Plaintiff cannot meet this showing. Curtis was investigated by Kevin Miller. Pl. Ex. 8; Miller Depo. at 108. At the time of her suspension, Manning's immediate supervisor was Obertate. He, along with Donna Mullins, who worked in Human Resources, conducted the investigation of the complaints about the department. Mullins Aff., ¶¶ 10-11.
It is not surprising (or unlawful) that different decision makers proceeded in different ways. Radue, 219 F.3d at 618 ("Different employment decisions, concerning different employees, made by different supervisors, are rarely sufficiently comparable to establish a prima facie case of discrimination for the simple reason that different supervisors may exercise discretion differently.") (emphasis added).
Similar reasoning explains why Obertate and Manning were not treated the same with regard to one aspect of their employment histories at MCSI. Plaintiff states that she was fired "based on an unsubstantiated accusation by Wayne Obertate that Manning is a liar and that she lied to her employees." Plaintiff's Reply at 6. Plaintiff argues that this situation is evidence of disparate treatment because Miller had specifically noted a lack of truthfulness on the part of Obertate in a performance evaluation of Obertate, but had not investigated or fired Obertate on this basis. Id. The Court first notes that Obertate, not Miller, initiated the investigation of Manning. Therefore, Miller's failure to further probe Obertate's alleged untruthfulnss is not a good comparison to the decision regarding the investigation of Manning. See Radue, 219 F.3d at 618 ("Different employment decisions, concerning different employees, made by different supervisors, are rarely sufficiently comparable to establish a prima facie case of discrimination for the simple reason that different supervisors may exercise discretion differently.") (emphasis added). Also, as explained in the Entry of September 29, 2000, Manning, 2000 WL 1469352, at *14, the decision to investigate and eventually fire Manning was not entirely based on concerns about her truthfulness. More general worries about "the management of the laboratory and how information is managed in the department" also played a role. Id. at 5 (quoting Obertate Depo. Ex. 48). Plaintiff's characterization of Defendant's reasons for firing her ignores some unrebutted parts of the evidence at hand.
Finally, Plaintiff points out that the Court did not address the allegedly disparate treatment of Kenny Stone and Manning. Memo. to Alter at 5. As discussed in the first Entry, Manning was demoted from the position of Director of Materials Management in March of 1995. Manning, 2000 WL 1469352, at *2. At the time of her demotion, her pay was cut by $10,000. Id. Kenny Stone, another one-time Director of Materials Management was later demoted from this same position but did not suffer a pay cut. Id.
Plaintiff contends that the reasons given for Manning's pay cut demonstrate pretext and cites this discrepancy as evidence of disparate treatment. Memo. to Alter at 5. Specifically, Plaintiff contends that "Defendant until [well into the litigation], has always maintained Plaintiff's salary was decreased solely `due to a decrease in responsibilities' when taken out of Materials Management." Plaintiff `s Surreply Brief in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Surreply") at 9 (quoting Ex. 2, Defendant's Response to EEOC Charge No. 240971890). In its Reply to Plaintiff's Answer Brief in Response to Defendant's Motion for Summary Judgment, Defendant attached an affidavit from Donna Mullins, Director of Human Resources at MCSI. In her affidavit, Mullins explained that Manning's pay was reduced to keep it in line with the salaries reported in the Indiana Hospital Association ("IHA") market salary survey and that Stone's was already in line with market standards and so was not reduced. Second Mullins Aff., ¶¶ 10, 12-13. Plaintiff argues that this "changed" reason is evidence of pretext and that, if the Court were to accept Defendant's explanation, we would be making a credibility assessment better left to a jury. Plaintiff's Reply at 12-13.
We must reject this as spurious reasoning. In the EEOC response letter, Defendant also included a chart showing market salaries for employees at hospitals of a size comparable to that of MCSI with jobs similar to that of Manning when she worked only as Director of Laboratory Services. Defendant's Response to EEOC Charge No. 240971890, at 3. In addition, in her affidavit Mullins stated that the Hospital regularly uses the IHA market survey "as a guideline in making salary offers, merit increases, changed duties/changed compensation, and any market adjustments required, and attempts to maintain the salaries of its management and executive positions near the midpoint of the median pay range of the annual IHA surveys for those positions." Second Mullins Aff., ¶ 5.
Both the EEOC response letter and Mullins' affidavit support Defendant's explanation for lowering Manning's pay, but not Stone's pay, when materials management responsibilities were reassigned. Defendant has produced the IHA survey showing that if not for the decrease, Manning's pay would have significantly exceeded the median for directors of laboratory services. Defendant's evidence also demonstrates that Stone's pay would have been significantly lower than what most managers in his position made if his pay had been reduced when he was demoted from the materials management position.
In contrast, Plaintiff has failed to offer evidence that market comparison was not a key consideration in Manning's pay cut. Based on the materials in the record, the first time that Defendant offered any explanation for this decision was in response to a different EEOC charge than the one discussed above. Ex.1, Defendant's Response to EEOC Charge No. 240952526. The response letter states, "At the time of the reassignment of the materials management function, Complainant's salary was adjusted to reflect her lessened responsibilities." Id. at 3. Plaintiff argues that, from sentences like this one, the Court should discount the Mullins Affidavit and the later EEOC response letter and draw the inference that Defendant was lying when it offered a fuller explanation for its decision to reduce Manning's pay. Plaintiff overstates her evidence's pertinence. Without more evidence and reasoning, it is unclear why a salary "adjusted to reflect lessened responsibilities" does not also reflect those lessened responsibilities in light of the IHA market salary survey. By accepting the explanation offered in Mullins' Affidavit and in the second EEOC response letter, the Court is not deciding to believe Mullins and the person providing information to the drafter of the EEOC response letter over the suppliers of Plaintiff's evidence. We are simply recognizing that Manning's evidence does not directly speak to the Defendant's evidence and does not permit the reasonable inference that Defendant's explanation is pretextual. As the Seventh Circuit has concluded, even after Reeves, "[i]t is always possible, of course, that the jury might have disbelieved everything [Mullins] said, but we routinely deny summary judgments based on that kind of hope." Massey, 226 F.3d at 924. Reasonable inferences, not wishful thinking, are the bases for rejecting summary judgment motions, even after Reeves. Manning has offered no evidence permitting the reasonable inference that Manning's pay was reduced (and Stone's was not) for other than one of the reasons Defendant proffers for the decisions to keep management salaries in line with market forces. Again, Plaintiff fails to show evidence of pretext through comparison of her situation with those of Curtis, Obertate, or Stone. For these reasons, Manning's Motion to Alter must be denied.
Because the Court confirms its prior ruling granting summary judgment to Defendant on the entire case, Plaintiff's Motion to Find Facts Under Rule 56(d) is DENIED. Federal Rule of Civil Procedure 56(d) asks courts to find facts only when "judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary."
Clarification of Defendant's Motion to Strike
In footnote six of the Entry, we explained that because some of the evidence and arguments presented in Plaintiff's Surreply responded only to evidence and arguments presented in the Defendant's first memorandum in support of its summary judgment motion, the Court must grant, in part, Defendant's Motion to Strike. We also denied, in part, Defendant's Motion to Strike because much of Plaintiff's additional evidence and argument in the Surreply were contrary to her position. Hence, these ineffectual parts of her Surreply rendered Defendant's Motion to Strike moot, to a point. Plaintiff has requested reconsideration and/or clarification, which the Court now provides.Defendant's Motion to Strike must be denied as to Exhibits 1-5 of the Surreply. As discussed in footnote 6 of the Entry, the Court considered Exhibits 4-5 and found them unsupportive of Plaintiff's position. Exhibits 1-3 were considered in connection with Plaintiff's claim of disparate treatment of Manning as compared to Stone. As noted above in the discussion of the EEOC Response letters, the Plaintiff has overstated the pertinence of these documents to the disputed issue. We have also considered Attachment C, the Second Affidavit of Rita Manning. There is no reason to strike this affidavit as it did not aid the Plaintiff's cause.
Attachments A and B, "Material Facts that Exist without Substantial Controversy Pursuant to Rule 56(d)" and "Material Facts in Issue Precluding Summary Judgment," respectively, are struck from the record. As noted in footnote 1 of the Entry, the parties played fast and loose with the concept of "fact" throughout their submissions. These attachments are no exception and cannot possibly claim to be what their titles loftily assert as their nature. For instance, in "Material Facts in Issue Precluding Summary Judgment," Plaintiff lists the following as a fact "remain[ing] genuinely in dispute and preclud[ing] summary judgment: . . . Wayne Obertate owed everything to Miller who promoted him in spite of disciplinary action in the same month he received the promotion." Attachment B at 1 and ¶ 41. Miller may have disciplined and promoted Obertate in the same month, but prefacing this statement with "Wayne Obertate owed everything to Miller" and calling the statement a "fact" is preposterous. Id. (emphasis added).
As for the text of Plaintiff's Surreply brief, we deny Defendant's Motion to Strike with respect to Section I: Introduction as it, at least in part, addresses arguments first raised in Defendant's Reply. Section II: Disputed Material Facts Preclude Summary Judgment is struck for the same reasons as Attachments A and B. Section III: Defendant Cannot Have Summary Judgment as to "Claims" Plaintiff Has Not Made likewise is not struck, if for no other reason than it clarified some of the confusion precipitated by Plaintiff's Complaint.
We deny Defendant's Motion to Strike as moot with respect to Section IV: Defendant Has Failed to Show a Basis for Summary Judgment. The argument in Section IV did not injure the Defendant's position regardless of whether it was permissible under Local Rule 56.1. Section V: Conclusion is not struck from the record.
Conclusion
For the reasons explained above, Plaintiff's Motion to Alter is DENIED. The Court's prior order on Defendant's Motion to Strike is CLARIFIED as set forth above.
It is so ORDERED this 8th day of March 2001.