The opinion of the court was delivered by: J. Phil Gilbert U.S. District Judge
This matter comes before the Court on the motion for summary judgment filed by defendants the Illinois Department of Corrections ("IDOC") and Brent Finley ("Finley") (Doc. 25). Plaintiff Vicki Chambliss ("Chambliss") has responded to the motion (Doc. 29) and the defendants have replied to that response (Doc. 37). Chambliss has also filed a motion to strike certain exhibits upon which the defendants' summary judgment motion relies (Doc. 30), and the defendants have responded to that motion (Doc. 34).
In this case, Chambliss alleges that IDOC, her employer, is liable under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., for sexual harassment, and that Finley, her supervisor, is liable under 42 U.S.C. § 1983 for sexual harassment in violation of her Fourteenth Amendment equal protection rights. The defendants contend that Chambliss cannot establish a case of sexual harassment and, if she could, they would be entitled to assert an affirmative defense and, as for Finley, he would be entitled to qualified immunity.
I. Standard for Summary Judgment
Summary judgment is appropriate 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 judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396. This standard is applied with special scrutiny in cases such as employment discrimination cases that often turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas, 209 F.3d at 692. Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.
As a preliminary matter, the Court must address to what extent, if at all, it will consider the exhibits Chambliss seeks to strike when it assesses the evidence in support of the motion for summary judgment. In ruling on a motion for summary judgment, the Court considers only evidence that would be admissible at trial. See Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001); Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000).
Chambliss asks the Court to strike three exhibits offered in support of the defendants' motion for summary judgment:
* A February 3, 2004, IDOC report by Leslie McCarty ("McCarty"), an IDOC investigator, about the investigation of a sexual harassment complaint made by Sharon Humm ("Humm"), one of Chambliss's co-workers ("Humm Report");
* An April 25, 2004, IDOC report by McCarty about the investigation of a sexual harassment complaint made by Chambliss ("Chambliss Report"); and
* A February 6, 2004, letter from Humm to McCarty ("Humm letter").
Chambliss claims that these documents are out of court statements and cannot therefore be offered for the truth of the matters asserted therein under Federal Rule of Evidence 802.
1. Humm and Chambliss Reports
Chambliss does not contest that the two reports are admissible for the purposes of showing that an investigation was conducted, but believes they cannot be used to show that the statements in the reports are true. She believes the reports do not fall into the business records exception to the hearsay rule. See Fed. R. Evid. 803(6).
The defendants agree with Chambliss that they may use the reports to show that an investigation was conducted and also believe that they may use the reports to show the extent of the investigation, what information IDOC had been given, and whether its response was reasonable based on that information. See Fed. R. Evid. 803(3). It also believes Chambliss's statements as recorded in the Report would be admissible as admissions of a party-opponent, see Fed. R. Evid. 801(d)(2), and that the entire reports are admissible as public records or reports, see Fed. R. Evid. 803(8)(C), or business records, see Fed. R. Evid. 803(6).
The defendants are correct that the reports can be used to show the existence of their investigations as well as what information IDOC received during those investigations for the purpose of demonstrating their knowledge and explaining their beliefs and responses in light of that knowledge. When used for those purposes, the reports are not being used for the truth of the matters asserted in them but for IDOC's state of mind, regardless of whether the statements in the reports were truthful. Thus, the reports are not hearsay under Rule 801(c) and are admissible when offered for those purposes. See Woods v. City of Chicago, 234 F.3d 979, 986-87 (7th Cir. 2000) (criminal complaint and arrest report admissible to show whether reasonable officer in arresting officers' position would have had probable cause to believe crime had been committed).
The Court further finds that the reports are not admissible for the truth of their substance under Rule 803(8)(C) as public records or reports. Rule 803(8) is an exception to the hearsay rule for
[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings . . . factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Although the reports at issue here may technically qualify as "factual findings resulting from an investigation made pursuant to authority granted by law," the sources of information in the reports -- the complainants' fellow IDOC employees -- lack sufficient trustworthiness. The report essentially contains responses from IDOC employees who were asked to describe various aspects of their work environment. The witnesses' statements were not under oath and were full of subjective statements and opinions. Furthermore, as demonstrated by some of the statements themselves, the witnesses may have been motivated by petty gripes and jealousies about their co-workers rather than a desire to tell the truth. There was no hearing held to assess the credibility of the witnesses and to arrive at a conclusion, and the reports themselves were rendered by a representative of a party to this litigation. In the foregoing respects, the reports at issue here are distinguishable from the administrative Equal Employment Opportunity Commission ("EEOC") findings found to be admissible in Young v. James Green Mgmt., Inc., 327 F.3d 616, 624 (7th Cir. 2003). For these reasons, the statements in the reports are not the kind of trustworthy data that this Court will accept as evidence absence additional safeguards such as, for example, being subject to cross-examination or being sworn to or declared under penalty of perjury.
The Court further finds that the reports are not admissible under Rule 803(6) as business records. Rule 803(6) is an exception to the hearsay rule for records of regularly conducted activities:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
This exception does not generally render reports admissible, even when kept in the regular course of business, where the supplier of the information in the report does not act in the regular course of business. See Fed. R. Evid. 803 advisory committee's notes on 1972 proposed rules. Furthermore, for the same reason the Court did not find the reports trustworthy as public records under Rule 803(8)(C), it finds that they are not trustworthy as business records under Rule 803(6) and will not consider this for the truth of the matters reported in them in deciding the pending summary judgment motion.
As for Chambliss's statements in the reports, the defendants are correct that if they are sought to be used against her in this case, they are not hearsay because they fall under Rule 801(d)(2)(A). However, the defendants have not overcome the first layer of hearsay, that McCarty has not testified herself as to what Chambliss said. Had McCarty testified in a deposition or affidavit as to what Chambliss said in the interviews, that evidence would be admissible. McCarty's out of court statement recounting Chambliss's alleged statements are not.
Chambliss asks the Court to disregard the statements in the Humm letter that Chambliss was engaging in sexually inappropriate behavior in the workplace because they are hearsay -- Humm's out-of-court statements about what she heard other people say happened when she was on a leave of absence.
Again, Humm's letter does not qualify as a public record or a business record, and had Humm herself testified in a deposition or stated in an affidavit about her first-hand knowledge about what Chambliss said or did, it might have been admissible as an admission of a party opponent. However, her letter is hearsay and will not be considered by the Court for the truth of the matters asserted in it.
For these reasons, the Court will grant the motion to strike (Doc. 30) to the extent it asks the Court not to consider the interviewees' statements in the reports or Humm's statements in her letter for the truth of the events they report.
In their reply brief, the defendants ask the Court to disregard portions of Chambliss's affidavit offered in opposition to the summary judgment motion on the ground that it conflicts with her deposition testimony and that she has not given a reasonable explanation for the conflict.
The law is well-established that "in general, parties may not 'patch-up potentially damaging deposition testimony' with a contradictory affidavit." Commercial Underwriters Ins. Co. v. Aires Envtl. Servs., 259 F.3d 792, 799 (7th Cir. 2001) (quoting Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999)). "Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy." Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995))); Lawson v. CSX Transp., Inc., 245 F.3d 916, 919 n. 4 (7th Cir. 2001). This rule applies, however, only where the discrepancies are transparent shams, not where they are simply clarifications of earlier ambiguous or confusing statements where they merely go to the credibility of the witness. Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1169-72 (7th Cir. 1996). Furthermore, the Court will consider a contradictory affidavit if the declarant satisfactorily explains the discrepancy in the testimony. Commercial Underwriters, 259 F.3d at 799.
If Chambliss's affidavit contradicts her deposition testimony and there is no plausible explanation for the conflict, the Court will disregard that portion of the affidavit in ruling on the summary judgment motion. The Court will examine each alleged conflict separately and, if necessary, will note in its recitation of the facts when affidavit statements have been disregarded.
Most of the defendants' objections, however, are to additional facts presented in Chambliss's affidavit that supplement but do not conflict with her deposition testimony. To the extent that the defendants object because Chambliss adds in her affidavit details that she did not include in her deposition but that do not contradict her deposition, the Court will consider those affidavit statements. Chambliss's lack of completeness at her deposition can easily be ...