The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Now before the Court is Defendant Walgreen Co.'s ("Walgreens") Motion for Summary Judgment. Also before the Court, tangential to Defendant's Motion for Summary Judgment, are Plaintiff's Motion to Strike the Affidavit of Michael A. Palmer, and Defendant's Motion to Strike Plaintiff's Response to Allegedly Undisputed Material Facts. For the reasons set forth below, Plaintiff Simple's Motion to Strike the Affidavit of Michael Palmer [#49] is DENIED, Defendant Walgreens' Motion to Strike Plaintiff's Response to Allegedly Undisputed Material Facts [#54] is DENIED, and Defendant Walgreens' Motion for Summary Judgment [#48] is GRANTED.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as the claims asserted in the Complaint present federal questions under Title VII, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981.
Plaintiff Eric Simple has a bachelor's degree from Illinois State University in Speech Communications. Simple has been an employee of Walgreens since April 1995. In April 1999, Simple was promoted from the position of Management Trainee to Executive Assistant Manager (EXA), and between 1999 and 2004, Simple worked as an EXA in various stores in the Bloomington-Normal area. EXA is a salaried position with bonuses based on performance of the store and is the predicate position to becoming a store manager.
In the Walgreens business structure, the district manager is the person responsible for selecting store managers, though there is no written policy regarding how or by what criteria EXAs are to be selected for promotion. Michael Palmer ("Palmer") is, and was at all relevant times, the district manager for Walgreens' "Illinois North" District, which includes the stores in Bloomington-Normal, Peoria, Kankakee and Pontiac.
The typical time spent as an EXA is approximately two years, after which an EXA becomes "promoteable." Like EXAs, store managers are paid a base salary and bonus that is based on store profitability. Since April 1999, Simple made it known to Walgreens that he wished to be a store manager in the Bloomington-Normal area. The "Bloomington-Normal area" includes 5 stores out of 28 in the Illinois North District.
In November 2001, Palmer offered to Simple the store manager position at the East Court Street Walgreens in Kankakee. Plaintiff declined the offer because he did not wish to relocate and believed that the store was in a predominantly African-American, socioeconomically challenged neighborhood.
In November 2002, Palmer offered to Simple the store manager position at the Walgreens on 600 South Western Avenue in Peoria. Plaintiff also declined this offer for reasons not apparent in the record. Simple made it clear to Palmer that he was interested in store manager positions in the Bloomington-Normal area because he did not want to relocate his family.
The events at the center of the litigation occurred in October 2003. In October 2003, Simple was working as an EXA as the Veterans Parkway/G.E. Road Walgreens in Bloomington. At that time, Leanne Turley ["Turley"] was the store manager of the Veterans Parkway/G.E. Road location, and was Simple's immediate supervisor. In early October 2003, Palmer became aware that the Pontiac Walgreens was going to need a new store manager. The Pontiac Walgreens is considered one of the five stores in the Bloomington-Normal area and was in the bottom quarter in profitability for stores in the district in 2003.
Palmer selected Melissa Jonland ["Jonland"], another EXA in the Illinois North district, for the Pontiac store manager position. Jonland had been a Walgreens' employee since 1994. Palmer did not solicit applications for the store manger position or otherwise "post" the upcoming opening. Palmer interviewed only Jonland and offered her the position during the course of the interview.
Soon after Palmer had selected Jonland as the new store manager for the Pontiac store, Turley informed Simple about the vacancy and that Palmer had already asked Jonland to fill the position. Before this conversation, Simple had no knowledge of the opening in Pontiac. Turley admits that during this conversation, she commented "something to the effect of the fact that Eric was not promoted to Pontiac and that the person that was promoted was probably a better fit for the store and that Pontiac was perhaps not ready to have a black manager." Turley Dep., at 52--53. Simple's version of Turley's comment is not much different. He testified that Turley stated: "And it's not that you're not ready for the Pontiac store; it's that Pontiac is not ready for you because, as a black male, you will surely fail in that store. Sales would suffer. . . . Walgreens is doing you a favor because with Walgreens you only get one shot, one opportunity." Walgreens claims that Turley made this comment to Simple because she was trying to make an upset employee feel better by telling him that he probably would not have been happy in Pontiac anyway. Palmer orally reprimanded Turley for making this comment to Simple and informed her that any similar conduct in the future could result in her termination.
In November 2003, Turley asked Simple if he was interested in the East Court Street store in Kankakee. He told her that he was not. Not long after this offer, Simple filed a Charge of Discrimination with the EEOC on February 12, 2004.
In April 2004, Palmer offer Simple the store manager position at the Walgreens store at 600 South Western Avenue in Peoria. Simple turned down the position because he did not like the manner in which Palmer offered it to him, the store's location in an African-American neighborhood, and the fact that the store would be closing in 16 months and merging with another store.
In October 2004, after Simple had filed this action, Palmer asked Simple if he had interest in being considered for a store manager position at the East Court Street Walgreens in Kankakee. Simple informed Palmer that he was not willing to relocate and was no longer interested in becoming a store manager.
On September 3, 2004, Simple filed this action, pursuant to Title VII of the Civil Rights Act of 1964, alleging that Walgreens unlawfully discriminated against him because of his race. Walgreens has now moved for Summary Judgment. Simple moved to strike Walgreens' supporting affidavit of Michael Palmer, and responded to Walgreens' Motion for Summary Judgment. Walgreens has also moved to strike Simple's Response to Allegedly Undisputed Material facts. All three motions are fully briefed, and this Order follows.
I. Simple's Motion to Strike the Affidavit of Michael Palmer
The first matter before the Court is Plaintiff Simple's Motion to Strike certain portions of Michael A. Palmer's Affidavit,*fn1 which was submitted by Walgreens in support of its Motion for Summary Judgment.
A. Paragraphs 4, 6, and 7
Simple argues that the Court should strike paragraphs 4, 6, and 7 of Palmer's Affidavit because they "lack foundation, contain inadmissible conclusions and are in contradiction to" Palmer's deposition testimony. Paragraphs 4, 6, and 7 state:
4. The typical career path is for an EXA who is qualified to become a store manager to begin his or her career as a store manager in a store in the bottom one-third in terms of volume and profitability. The reason for this is to enable the new store manager to gain proficiency in his or her skills in a less pressurized environment and to minimize the possible loss of profits should the new manager not succeed. If the store manager succeeds at such a store, he or she may then be reassigned to a high profit store as openings occur.
6. At that time, employee morale in the Pontiac store was low. Investment management, meaning the maintenance of optimum inventory levels for the sales base, for the store was weak. The overall store condition and the store productivity had also declined in the recent months at the store. Ms. Jonland's performance as an EXA demonstrated that she had strong and consistent performance in her personal productivity, good communication skills, kept to the task at hand, and had good attention to detail.
7. While Ms. Jonland had been an EXA I concluded she had demonstrated strength in investment management in the two stores where she worked. This judgment was based on my subjective and objective review of the two stores which showed inventories were low in relation to sales. As an EXA she would have been responsible, along with the store manager, for investment management in the stores. Ms. Jonland's performance in this area was better than that of Mr. Simple's, who had preceded her as an EXA at the 1110 Main Street store in Bloomington.
In response to Simple's argument that these three paragraphs lack foundation, contain inadmissible conclusions, and contradict Palmer's deposition testimony, Walgreens argues that the Court should not strike these paragraphs because, as district manager of the relevant Walgreens district, Michael Palmer had direct personal knowledge of the hiring process, and the information in these paragraphs does not contradict Palmer's deposition testimony.
Federal Rule of Civil Procedure 56(e) requires affidavits be made upon an affiant's personal knowledge and present admissible evidence. The court should disregard an affidavit that does not comply with the requirements of 56(e). ...