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Fisher v. Vance Publishing Corp.

February 12, 2010

SHERRY L. FISHER, PLAINTIFF,
v.
VANCE PUBLISHING CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Maria Valdez

MEMORANDUM OPINION AND ORDER

Plaintiff Sherry L. Fisher's complaint alleges that Defendant Vance Publishing Corporation unlawfully discriminated against her in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621, et. seq. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c). The matter is now before the Court on Defendant's Motion for Summary Judgment [Doc. No. 48] and Defendant's Motion to Strike Fisher's Purported Affidavit [Doc. No. 61]. For the reasons below, Defendant's Motion to Strike Fisher's Purported Affidavit is denied and Defendant's Motion for Summary Judgment is granted.

MOTION TO STRIKE*fn1

Defendant requests that Fisher's entire affidavit, submitted in support of her response to Defendant's motion for summary judgment as Exhibit G to her Local Rule 56.1 Statement of Additional Facts, be stricken because it is not notarized and does not meet the requirements for an unsworn declaration under 28 U.S.C. § 1746. Fisher admits that she inadvertently failed to have her original affidavit notarized and seeks to submit a substantively identical affidavit that is properly notarized. Because Defendant has not identified how Fisher's inadvertent error has prejudiced it in any way, its request that the entire affidavit be stricken is denied. See Luckie v. Ameritech Corp., No. 01 C 86919, 2003 WL 25719855, at *1 (N.D. Ill. Aug. 21, 2003) (refusing to strike an entire affidavit after a party submitted a substantively identical, notarized affidavit).

Alternatively, Defendant requests that certain paragraphs of Fisher's affidavit be stricken because they contradict previous deposition testimony and/or interrogatory answers. A party cannot defeat summary judgment by creating "sham issues of fact with affidavits that contradict their prior depositions." Ineichen v. Ameritech, 410 F.3d 956, 963 (7th Cir. 2005) (citation omitted). "Courts generally ignore attempts to patch-up potentially damaging deposition testimony with a supplemental affidavit unless the party offers a suitable explanation -- e.g., confusion, mistake or lapse in memory -- for the discrepancy." Stinnett v. Iron Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 614 (7th Cir. 2002) (citation omitted).

Fisher was chosen in January 2006 to serve on a committee to design and implement a work-related awards program. Fisher Aff. ¶ 19. During a committee meeting, Fisher states that she asked Loreen Muzik ("Muzik"), Defendant's Vice President of Human Resources and Facilities, if Defendant was considering creating an award that recognized employee longevity with the company. Fisher Aff. ¶ 20. Fisher says Muzik responded by stating, in effect, "[Bill] Vance[, the owner of Defendant,] doesn't want to give the impression that we're an old company. He wants us to portray ourselves as young and vital." Id.

Defendant believes paragraph 20 of Fisher's affidavit contradicts to her prior deposition testimony and interrogatory answers. At her deposition, Fisher was asked, "Did anyone at [Defendant] ever make any inappropriate age-related remarks to you, comments or remarks to you [sic]?" She answered, "No." Fisher Dep. 113: 5-8. Similarly, through an interrogatory, Fisher was asked, "State whether . . . any person employed by or acting on behalf of Defendant made any statement or remark to you, or engaged in any act or practice, which you believe is evidence of discrimination on the basis of age." Def. First Set of Interrog. No. 8. Fisher's answer did not include Muzik's alleged comment.

Fisher submits that there is no contradiction between paragraph 20 and her deposition testimony because she interpreted the deposition question to be limited only to comments made to her regarding her own age (as opposed to comments made to her regarding the ages of any other employees). Fisher Aff. ¶ 22. She says did not identify Muzik's alleged comment previously because she did not think it was directed at her or made in reference to her age.*fn2 Id. The explanation is plausible. In the context of a disparate treatment lawsuit in which Fisher has alleged that Defendant discriminated solely against her on the basis of her age, it is plausible that Fisher could have understood the deposition question and interrogatory at issue to be limited to age-related comments about her own age. Under that reasonable understanding of the questions at issue, she was not called upon to identify Muzik's comment. Paragraph 20 will remain in Plaintiff's affidavit. See Cowan v. Prudential Ins. Co. of America, 141 F.3d 751, 757 (7th Cir. 1998) (considering additional evidence contained in an affidavit subsequent to a deposition when the evidence related to an ambiguous deposition question to which the plaintiff gave a reasonable answer).

Likewise, Paragraph 26 of Fisher's affidavit will be allowed. Fisher was asked at her deposition whether she had applied for any jobs after her employment with Vance was terminated. She responded, "no." Fisher Dep. 152: 18-20. Subsequently, in her affidavit, Fisher stated that she "look[ed] for work" during the same time period. Fisher Aff. ¶ 26. Fisher argues, and the Court agrees, that "applying for jobs" and "looking for work" are not one and the same. The Court will not strike the paragraph from Plaintiff's affidavit because it does not contradict previous deposition testimony. Defendant's Motion to Strike Fisher's Purported Affidavit [Doc. No. 61] is denied.

MOTION FOR SUMMARY JUDGMENT

I. Background Facts*fn3

Defendant publishes industry-focused periodicals and marketing materials. Def.'s L.R. 56.1 Statement of Facts ("Def. Facts") ¶ 2. Its Salon Division publishes magazines targeted at salon owners and spa professionals. Id. Defendant hired Fisher in 1983, assigned her to the Salon Division a year later, and promoted her to the position of Manager of Business Operations in the Salon Division in 1989. Pl.'s Resp. to Def. L.R. 56.1 and Stmt. of Add'l Facts ("Pl. Facts") ¶ 30. She remained in that position until her employment with Defendant was terminated. Id.

On September 28, 2006, Defendant hired Scot Stevens ("Stevens") to manage the Salon Division. Def. Facts ¶ 5. One of the first tasks Stevens was given as manager was to restructure Defendant's Salon Division as part of a company-wide reorganization. Id. ¶ 8. Before doing so, Stevens interviewed each Salon Division employee, including Fisher, and asked about their job duties.*fn4 Id. ¶¶ 5, 8. After Stevens familiarized himself with the division, he learned that many of the duties of the Manager of Business Operations position (held by Fisher) were being consolidated with a position in the accounting department. Id. ¶ 8. He also learned that significant elements of the Manager of Business Operations position were being eliminated. Id.

After those interviews, Stevens developed a plan to restructure the Salon Division that included creating a new sales representative position. Id. ¶ 9. The sales representative position would sell Renew magazine nationally and Modern Salon and Salon Today in the Midwest. Id. ¶ 12. Steven also decided to consolidate two part-time sales support positions, those of Sherry Delvecchio ("Delvecchio") and Joan Brandt ("Brandt"), into one full-time sales support position that would continue to provide clerical and administrative support to the Division's sales representatives.*fn5 Id. ¶¶ 8, 9, 12. His plan also eliminated Fisher's position as Manager of Business Operations. Id. ¶ 9. Stevens and Muzik informed Delvecchio, aged forty-seven, Brandt, age sixty-one, and Fisher, age fifty-eight, that their positions had been eliminated on November 9, 2006. Pl. Facts ¶¶ 30, 48*fn6 ; Def. Facts ¶¶ 3, 9.

Although Delvecchio's part-time sales support position was eliminated through the reorganization, Stevens asked Delvecchio to continue working for Defendant (from Arizona) during a short transition period until Defendant filled the full-time sales support position in Illinois. Def. Facts ¶ 11. Meanwhile, Defendant posted a job announcement for the full-time sales support position on its bulletin board and website. Id. ¶ 17. Defendant also encouraged Fisher to apply for the position. Id. ¶ 16. Fisher refused, even though she knew that, as of November 9, 2006, Delvecchio had only filled the sales support position temporarily, and had not received the job permanently. Id. ¶¶ 17, 18; Fisher Dep. 97:13-16. Unlike Fisher, numerous others applied for the position. Def. Facts ¶ 25. Between November 9, 2006 and January 2007, Stevens interviewed approximately six of those applicants. Id. Unhappy with those candidates, he offered the full-time position to Delvecchio permanently in January 2007. Id. Stevens modified position so that Delvecchio could remain in Arizona. Id.

Stevens meanwhile selected Sarah Katherine Cook ("Cook"), age twenty-five, to fill the sales representative position in November 2006. Id. ¶ 19; Pl. Facts ¶ 48. Cook had worked in Defendant's marketing research department since January 2004, and her position was not eliminated as part of the reorganization. Def. Facts ¶ 20. As a marketing research employee, Cook attended eight to ten trade shows, met with clients, and gone on approximately twenty direct sales calls prior to the reorganization. Id. She was deeply involved with sales. Id. She had also met with Stevens and expressed to him multiple times per week that she was interested in becoming a sales representative. Id. ¶ 22.

Fisher concedes that Defendant's reorganization was undertaken for business reasons and was non-discriminatory. Id. ¶ 14. Her only claims of discrimination are that she should have received either the sales representative position or the sales support position. Id. ¶ 15.

II. Standard

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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must draw all reasonable inferences in ...


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