nothing more than a violation of a term of its contractual agreement with plaintiffs, which is not actionable under section 1981. See Hall v. County of Cook, 719 F. Supp. 721, 724-25 (N.D. Ill. 1989). Argonne would be exposed to section 1981 liability for the denial of access to this forum only if plaintiffs sought there to redress the alleged breach of the manual's anti-discrimination provision. This allegation is not laid out in the complaint, but again, it can be inferred from plaintiffs' memorandum, and we think it best to sort this issue out at trial. To succeed on this claim, plaintiffs will have to establish at that time that they sought to use the internal grievance procedure to vindicate their contractual right to be free from discrimination.
II. Summary Judgment Against Plaintiff Poling Chang
In a separate motion filed only against Poling Chang, Argonne asserts that judgment in its favor is warranted as a matter of law in light of Poling Chang's concession that she cannot produce any evidence to support her allegations. Poling Chang is pursuing the discrimination claim on behalf of her husband Han Chang, who died subsequent to filing this suit. In essence, Argonne is arguing that Poling Chang admitted through deposition testimony and responses to interrogatories that she has no knowledge of any facts that would support the allegations pertaining to Han Chang in the complaint. Although Poling Chang was able to identify several individuals who she claimed have knowledge of relevant facts, Argonne continues, she herself could not identify any of those facts known to others.
Argonne's assumption that Poling Chang must be able independently to prove her allegations and must memorize and be able to recite the anticipated testimony of her witnesses is not only incorrect but also close to preposterous. A plaintiff need not personally have knowledge of all of the elements of his case; a passenger injured in a train accident, for example, may successfully sue the train company for negligence even though he has no personal knowledge of how the company's employees conducted themselves during the relevant period. For such purposes witnesses exist. Federal Rule of Civil Procedure 56 is a mechanism for ferreting out weak claims by determining through proxies whether sufficient evidence exists to permit a rational jury to find for the nonmoving party. Speculation on the part of the plaintiff about what his witnesses know is perhaps the most unreliable of all possible proxies; the filter of the plaintiff's understanding and memory can only obscure the truth and cast doubt upon the accuracy of the evidence, which, through the mouth of the plaintiff, would likely be hearsay anyway. There certainly is no requirement, contrary to Argonne's suggestion, that a nonmovant is limited to this method of proof in contesting a motion for summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), on which Argonne relies in part, does not in any way support Argonne's contention. The plaintiff in that case, pursuing, as administratrix of her husband's estate, a wrongful-death action against Celotex Corporation, apparently did not have personal knowledge that would connect her husband's injuries to any Celotex product. In response to Celotex's motion for summary judgment, however, she produced three documents that she claimed established the existence of a genuine material factual dispute: a transcript of her husband's deposition, a letter from an official of a former employer of her husband, and a letter from an insurance company. Celotex argued successfully at the district court level that it was entitled to summary judgment not because plaintiff-administratrix did not have personal knowledge of facts that would support her claim but rather because the only evidence that she did proffer was not admissible. The court of appeals and the Supreme Court, however, limited their consideration to the issue of whether a party moving for summary judgment must come forward with proof of the absence of any genuine issues of material fact before the nonmoving party is required to respond. Concluding that summary judgment is appropriate whenever the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof regardless of whether the moving party supports its motion with evidence negating the nonmovant's claim, the Court explicitly declined to evaluate the substance of Celotex's motion, observing that "the Court of Appeals with its superior knowledge of local law is better suited than we are to make these determinations in the first instance." 477 U.S. at 327. On remand, the D.C. Circuit denied a renewed motion for summary judgment. Catrett v. Johns-Manville Sales Corp., 263 U.S. App. D.C. 399, 826 F.2d 33 (1987), cert. denied, 484 U.S. 1066, 108 S. Ct. 1028, 98 L. Ed. 2d 992 (1988). To the extent that "the summary judgment principles set forth in Celotex are applicable to this case" (Defendant's Reply at 10), then, Argonne is conceding defeat.
Poling Chang is clearly entitled to go beyond her own depositions and answers to interrogatories to establish a genuine issue of material fact,
and in her response to Argonne's motion, she offers four pieces of additional evidence: affidavits of her husband Han Chang and Von Zuckerstein; Han Chang's answers to interrogatories; and Han Chang's charge of discrimination filed with the EEOC. In its reply memorandum,
Argonne challenges the admissibility of this evidence, arguing first that the affidavits contradict Poling Chang's own interrogatory answers and deposition testimony and must be disregarded under Miller v. A.H. Robins Co., 766 F.2d 1102 (7th Cir. 1985). While we agree with Argonne that in most cases "parties cannot thwart the purpose of Rule 56 by creating issues of fact through affidavits that contradict their own depositions," Miller, 766 F.2d at 1104, neither Han Chang's nor Von Zuckerstein's affidavit contradicts Poling Chang's deposition testimony. Poling Chang does not admit in her deposition a complete lack of proof regarding her claim; she merely disclaimed personal knowledge of the details of the case (see, e.g., Poling Chang Dep. at 35, 59). Von Zuckerstein's and Han Chang's affidavits do not assert to the contrary that Poling Chang has personal knowledge of relevant facts but rather supplement her deposition testimony. Indeed, the only statement that these affidavits contradict is Argonne's assertion that "[Poling] Chang is unable to produce any evidence to support the allegations contained in the third amended complaint" (Defendant's Memorandum at 1).
Argonne next attacks the admissibility of Han Chang's interrogatory answers, affidavit, and charge of discrimination, contending that they are hearsay. Argonne merely asserts that these submissions constitute inadmissible hearsay, failing to point to specific offending passages and to support or document its sweeping allegation of hearsay in any way. And it is not obvious to this court that the facts set forth in these submissions
are hearsay; Han Chang's answer to interrogatory number 4, for example, sets forth the details of two instances of alleged discriminatory removal and includes such assertions as "in 1980, plaintiff Dr. Change [sic] was in charge of the development of a report entitled, 'Environmental Implications of Accelerated Gasahol Production,' and was the report's principal contributor."
Despite the patent deficiencies of Argonne's argument, we cannot consider Han Chang's evidence for the purpose of this motion because Han Chang is no longer available to testify at trial. The purpose of a summary judgment motion is to determine whether enough evidence will likely be presented at trial so that a jury could find for the non-moving party. Written substitutes for oral testimony are accepted as indicators of what the jury will hear. Where an affiant or interrogatory answerer will clearly not be able to repeat the statements in his affidavit or the answers to the interrogatories at trial, that evidence no longer previews testimony that the jury will hear and therefore will not affect in any way what the jury could conclude.
That leaves us with the Von Zuckerstein affidavit. Claiming that this submission, too, must be ignored by the court, Argonne argues that "it is a hodgepodge of conclusions unsupported by any foundation or even any assertion by the affiant that he has personal knowledge of the matters discussed . . . [and] also contains rank hearsay" (Defendant's Reply at 5). Argonne illustrates this criticism with three specific examples (paras. 3, 9, and 11) and proceeds to condemn "all of the remaining paragraphs" as "suffer[ing] from similar deficiencies" (Defendant's Reply at 6). To the extent that we consider Argonne's loosely structured argument to constitute a motion to strike Von Zuckerstein's affidavit, see 10A C. Wright & A. Miller, Federal Practice and Procedure § 2738, at 507 (2d ed. 1983), it does not, beyond the three noted examples, state with sufficient specificity what should be stricken and why. See 6 J. Moore, W. Taggart & J. Wicker Moore's Federal Practice para. 56.22, at 56-764 (2d ed. 1985). Moreover, although we agree that statements in affidavits that are nothing more than broad conclusions, see Corinthian Pharmaceutical v. Lederle Laboratories, 724 F. Supp. 605, 609 (S.D. Ind. 1989), or that smack of hearsay should be disregarded, much of Von Zuckerstein's affidavit does not fall into either of those categories.
Specifically, paragraphs 7 and 8, in which Von Zuckerstein asserts that Han Chang was removed, by his supervisor, from a position that company policy reserved to him and was replaced by a less-qualified native-born employee and that this supervisor repeatedly made disparaging remarks about foreign- and in particular Chinese-born employees, contain statements that are admissible and sufficient to establish a prima facie case of discrimination under the indirect method of proof. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Morgan v. Harris Trust and Savings Bank, 867 F.2d 1023, 1026-27 (7th Cir. 1989). We note that the evidence submitted by Poling Chang is not overwhelming and perhaps represents only a portion of the case she will present at trial (Von Zuckerstein adverts in his affidavit, for example, to a 28-day deposition). Poling Chang goes well beyond merely identifying the witnesses that she will call at trial, however, and Argonne's motion does not realistically merit much more of a response.
For the foregoing reasons, Argonne's motion for summary judgment against Poling Chang is denied. Argonne's motion to dismiss plaintiffs' section 1981 claims is granted with respect to the allegations of harassment, denial of pay raises and comparable compensation, improper use of grant monies, denial of access and exposure, discharge (including removal from grant projects), and demotion; with respect to all remaining allegations, the motion is denied.