The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
Before the Court are Defendant Proctor Hospital's Motion for Summary Judgment [Doc. #34] and Plaintiff Vincent Staub's Response [Doc. #40]; Plaintiff's Motion to Strike Sections of Affidavit of Linda Buck [Doc. #39]; and Plaintiff's Motion to Strike Exhibit 1 of Supplemental Affidavit of Linda Buck [Doc. #45]. For the reasons that follow, Defendant's motion will be denied, and Plaintiff's motions will be denied as moot.
For the purposes of this summary judgment motion, the following facts, where disputed, are considered in the light most favorable to the non-moving party. Plaintiff Vincent Staub (Staub) has been a member of the United States Army Reserve since 1984. Staub began work as an angiography technologist (angio tech) for Defendant Proctor Hospital (Proctor) in 1990. He was terminated from that position on April 20, 2004. Staub claims his termination to be the end result of persistent discrimination on the part of his supervisors and co-workers, due to their dislike of his duties as a member of the Army Reserve and the burden that those duties placed upon the hospital.
The angiography lab at Proctor Hospital is part of the Diagnostic Imaging Department. Throughout the time period in question, the Diagnostic Imaging Department was supervised by Michael Korenchuk. The record shows that the de facto direct supervisor for the angio techs during that time was Jan Mulally. (Pl.'s Resp., Doc. #40 Ex. 5 at 7; Ex. 4 at 3-4.) Mulally was also in charge of scheduling for the department. (Id. Ex. 3 at 15.)
Staub's disciplinary record while an employee of Proctor Hospital is as follows: Staub was terminated once previously, in June 1998. This termination was for refusal to continue working past the end of his shift. (Def.'s Mot. Summ. J., Doc. #34 at 3, ¶ 14-16.) Staub filed a grievance and was reinstated pursuant to signing a document listing certain conditions. Id. On January 27, 2004, Staub was issued a Corrective Action Notice for failing to perform his duties by assisting another department. (Pl.'s Resp., Doc #40 at 5.) This notice was prepared by Jan Mulally and signed by Michael Korenchuk. (Pl.'s Resp., Doc #40 Ex. 3 at 36-38.) Leslie Sweborg, a fellow angio tech who was with Staub during the incident, received a largely identical Corrective Action Notice the following day. (Id. Ex. 3 at 39.) On April 20, 2004, after not being able to find Staub in the Diagnostic Imaging Department, Korenchuk was advised by Vice President of Human Resources Linda Buck to terminate him. (Buck Aff., Doc #37 at 43.) Sweborg had worked side by side with Staub that day and would have also been absent from the Department, but she was never disciplined. (Pl.'s Resp., Doc. #40 Ex. 7 at 59-60, 113 (Sweborg Dep.).) Staub was fired in a meeting with Buck and Korenchuk later that day.
Defendant Proctor Hospital has a written policy of complying with the Uniformed Services Employment and Reemployment Rights Act (USERRA). Despite this, Mulally, who was in charge of scheduling during Staub's tenure at Proctor, would often place Staub on the schedule when she knew that he had Reserve commitments. (Pl.'s Resp., Doc #40 at 12-13.) Rather than removing him from the schedule, she would often force him to find his own replacement, request volunteers to fill his hours, or simply assign his hours to other angio techs. This had the effect of breeding resentment and animosity toward Staub among his co-workers. Id. Mulally also called Staub's Reserve Unit several times asking them to change his drill dates so he could work at the hospital. During one of these phone calls she became irate and swore at Joseph Abbadini, the Reservist with whom she was speaking. Id. at 16. Staub's supervisor Michael Korenchuk also has made negative remarks regarding Staub's military duties, and refused to give Staub additional time necessary for travel when he was training in Minnesota. (Pl.'s Resp. Ex. #40 at 80.)
Mulally's animosity toward Staub is alleged to have extended to a conspiracy among hospital staff. According to Sweborg, Mulally and Angie Day attempted to recruit her to their effort to make Staub look bad, because they did not like him and wanted him to be fired. (Pl.'s Resp., Doc. #40 Ex. 7 at 12-13.) Day resigned in January 2004, after a public confrontation with Korenchuk. Day cited Staub's behavior as one of the reasons for her resignation. (Pl.'s Resp., Doc #40 Ex. 5.) Mulally later facilitated Day's rehiring to the angio lab at Proctor, seven days after Staub was terminated. (Id. Ex. 4.)
Following his termination, Staub brought this suit against Proctor, alleging, among other things, that the disciplinary actions taken against him on January 27, 2004 and April 20, 2004, and his termination from Proctor were the result of his service in the Army Reserve, in violation of the USERRA. Proctor has filed the present motion for summary judgment.
Summary judgment is to be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the burden of showing the court, through portions of the record, that no genuine issue as to any material fact exists and that they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may meet this burden by showing "that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324. Nevertheless, this Court must "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). Summary judgment will be denied where a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).
Under the USERRA, an employee must show that a protected status or activity was one of the reasons for the employer's action against him. 20 C.F.R. § 1002.22. If he can do so, the employer then has the burden to show that it would have taken the action regardless of the employee's protected affiliation or activity. Id. Among the protected activities under the USERRA is "[p]erformance of ...