United States District Court, S.D. Illinois
THOMAS E. PEREZ, Secretary of Labor, U.S. Department of Labor, Plaintiff,
PANTHER CITY HAULING, INC., PERRY RIDGE LANDFILL, INC., and JOSEPH MAZZA, Defendants.
MEMORANDUM AND ORDER ON PLAINTIFF'S SUMMARY JUDGMENT MOTION AND DEFENDANTS' MOTION TO STRIKE
MICHAEL J. REAGAN, District Judge.
A. Introduction and Procedural Overview
This case arises from the July 2011 firing of Mark Gates, who was employed as a truck driver by Panther City Hauling, Inc. In April 2013, Seth D. Harris, the Acting Secretary for the United States Department of Labor, filed suit in this Court against three Defendants - (1) Panther City Hauling, Inc., (2) Perry Ridge Landfill, Inc., and (3) Joseph Mazza, Vice President of Perry Ridge at the time relevant to this action. Harris was later replaced by Thomas E. Perez, the current Secretary of Labor. By operation of law, Perez was automatically substituted in place of Harris as Plaintiff. Fed.R.Civ.P. 25(d). The Clerk's Office will adjust the docket sheet accordingly.
Plaintiff alleges that Panther City Hauling, Perry Ridge Landfill, and Joseph Mazza violated Section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (the Act), by discriminating against Gates - i.e., firing Gates based on his exercise of rights under the Act. More specifically, Plaintiff alleges that Gates filed an OSHA complaint on July 26, 2011, and Defendants retaliated by firing Gates the following day.
The complaint alleges that due to Defendants' actions, Gates lost salary/benefits and suffered emotional pain and damage to his reputation. Plaintiff seeks compensatory and punitive damages, reinstatement of Gates to his job as a truck driver (or front pay in lieu of reinstatement), expungement of records relating to the termination, the prominent posting of a notice stating that Defendants will not discriminate against employees for engaging in activities protected under § 11(c) of the Act, and an order permanently enjoining Defendants and their officers/agents from violating § 11(c) of the Act.
The Court enjoys subject matter jurisdiction under the federal question statute, 28 U.S.C. 1331, and § 11(c) of the Act, 29 U.S.C. 660(c)(2). The latter provides (emphasis added):
Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
In January 2014, Plaintiff obtained leave to file an amended complaint which clarified Defendant Mazza's title and management role at Panther City Hauling and Perry Ridge Landfill (Doc. 36). Defendants answered the amended complaint January 17 through 31, 2014, (Docs. 38-40). Trial is set to commence September 22, 2014.
Now before the Court are three motions for summary judgment and a motion to strike. Plaintiff's motion for summary judgment (Doc. 43) ripened with the filing of a reply brief on May 15, 2014. Defendant Mazza's summary judgment motion (Doc. 47) and Defendant Perry Ridge's summary judgment motion (Doc. 49) ripened with the filing of reply brief on May 16, 2014. Defendants Mazza and Perry Ridge's joint motion to strike (Doc. 54) ripened with the filing of a response on May 19, 2014. This Order addresses Plaintiff's motion for summary judgment and Defendants' motion to strike. For the reasons set forth below, the Court will deny both motions (Docs. 43 and 54)
B. General Standards Governing Summary Judgment
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014), citing FED. R. CIV. P. 56(a). Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of material fact remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord Bunn v. Khoury Enterpr., Inc., ___ F.3d ___, 2014 WL 2198557 (7th Cir. May 28, 2014).
In assessing a summary judgment motion, the district court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the non-moving party. Anderson, 699 F.3d at 994; Righi v. SMC Corp. , 632 F.3d 404, 408 (7th Cir. 2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). When cross-motions for summary judgment are filed, "we look to the burden of proof that each party would bear on an issue of trial; we then require that party to go beyond the pleadings and affirmatively to establish a genuine issue of material fact." Diaz v. Prudential Ins. Co. of America , 499 F.3d 640, 643 (7th Cir. 2007). In other words, the "fact that both parties moved for summary judgment does not change the standard of review." Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 539 (7th Cir. 2011).
As the United States Court of Appeals for the Seventh Circuit has explained, on cross-motions for summary judgment, the Court must construe "the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Durable Mfg. Co. v. U.S. Department of Labor , 578 F.3d 497, 501 (7th Cir. 2009), citing Rickher v. Home Depot., Inc. , 535 F.3d 661, 664 (7th Cir. 2008). Accord Jefferson v. United States , 546 F.3d 477, 480 (7th Cir. 2008).
An additional word regarding the burden of proof is warranted here. Rule 56 imposes an initial burden of production on the movant for summary judgment - he must demonstrate that a trial is not needed. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Seventh Circuit has clarified that the parties' burdens on summary judgment depend on whether the movant does or does not bear the ultimate burden of persuasion at trial.
Where the nonmovant bears the ultimate burden of persuasion on a particular issue, ... the requirements that Rule 56 imposes on the moving party are not onerous. It does not require the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id . (emphasis in original). Rather, the movant's initial burden "may be discharged by showing' - that is point[ing] out to the district court - that there is an absence of evidence to support the nonmoving party's case." Upon such a showing, the nonmovant must then "make a showing sufficient to establish the existence of an element essential to that party's case." Id. at 322. The nonmovant need not depose her own witnesses or produce evidence in a form that would be admissible at trial, but she must "go beyond the pleadings"... to demonstrate that there is evidence "upon which a reasonable jury could properly proceed to find a verdict" in her favor."
Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013). See also Marcatante v. City of Chicago, 657 F.3d 433, 439 (7th Cir. 2011); Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 648-49 (7th Cir. 2011), citing Celotex, 477 U.S. at 323.
Here though, Plaintiff has filed a motion for summary judgment. As to that motion, the movant for summary judgment bears the burden of persuasion at trial. When the party moving for summary judgment also bears the burden of persuasion at trial, that party's initial summary judgment burden is higher.
When a summary judgment movant bears the burden of persuasion at trial (e.g., the movant is the plaintiff, or the movant is a defendant asserting an affirmative defense), he must establish all the essential elements of his claim or defense. See Celotex, 477 U.S. at 322. See also Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012) (if summary judgment movant is plaintiff, she must show that the record contains evidence satisfying her burden of persuasion); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (at summary judgment stage, party that bears burden of persuasion at trial must come forward with sufficient evidence of each essential element of its prima facie case); Moore's Federal Practice § 56.13(1) (3d ed. 2000).
To summarize, if the summary judgment movant does not bear the burden of proof at trial, he can prevail just by showing an absence of evidence to support any essential element of the nonmovant's case. But if the summary judgment movant does bear the burden of proof at trial, he can prevail only by proving each element of his case with evidence sufficiently compelling that no reasonable jury could return a verdict for the nonmovant. Celotex, 477 U.S. at 331 ("If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence... that would entitle it to a directed verdict if not controverted at trial"). See also Anderson, 477 U.S. at 248. As to Plaintiff's motion, this case fits in the latter category.
Bearing those procedural standards in mind, the Court assesses the record before it. But one preliminary matter must be addressed - which materials tendered in support of Plaintiff's motion may properly be considered by the Court.
C. Analysis of Perry Ridge/Mazza Motion to Strike (Doc. 54)
Defendants Perry Ridge and Mazza move to strike certain exhibits submitted in support of Plaintiff's summary judgment motion. Rule 12(f) authorizes a district court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Delta Consulting Group, Inc. v. R. Randle Const., Inc. , 554 F.3d 1133, 1142 (7th Cir. 2009), quoting FED. R. CIV. P. 12(f). Motions to strike generally are disfavored due to their potential for delay and the fact they are not appropriate for resolving issues that turn on facts yet to be developed, but they are properly used to "remove unnecessary clutter" from the pleadings. See Williams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400 (7th Cir. 1991), cert. denied, 504 U.S. 957 (1992); Heller Financial, Inc., v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); U.S. v. 416.81 Acres of Land, 514 F.2d 627, 631 (7th Cir. 1975); Atkins v. Pickard, 298 Fed.Appx. 512, 513, 2008 WL 4832924 (7th Cir. 2008).
Federal district courts enjoy considerable discretion to strike scandalous material and allegations which bear "no possible relation to the controversy or may cause the objecting party prejudice." Talbot v. Robert Matthews Distributing Co., 961 F.2d 654, 664-65 (7th Cir. 1992). And district courts have discretion to strike affidavits or similar materials submitted with a summary judgment motion if (for instance) they contain hearsay, they are not signed/dated, or they are not based on personal knowledge. See, e.g., Estate of Davis, 633 F.3d at 540; Marshall v. Local 701 Intern. Brotherhood of Electrical Workers, 387 Fed.Appx. 623, 626-27 (7th Cir. 2010), citing FED. R. CIV. P. 56(e)(1) and Magyar v. Saint Joseph Reg'l Medical Center, 544 F.3d 766, 770 (7th Cir. 2008). The motion to strike pending herein asks the undersigned to strike materials filed with Plaintiff's summary judgment motion as violative of rules of civil procedure and evidence.
The Federal Rules of Civil Procedure governing summary judgment were revised and reorganized in 2010. Rule 56(c)(4) no longer requires a formal affidavit to be submitted, Jajeh v. County of Cook, 678 F.3d 560, 567-68 (7th Cir. 2012), but it does require that any affidavit or declaration offered in support of summary judgment "be made on personal knowledge, [and] set out facts that would be admissible in evidence." Fed.R.Civ.P. 56(c)(4). See also Johnson v. Holder, 700 F.3d 979, 982 (7th Cir. 2012) (noting that Luster v. Illinois Dept. of Corrections, 652 F.3d 726 (7th Cir. 2011), held that evidence offered to support or oppose summary judgment must be admissible at trial, and affidavits or declarations must be made with personal knowledge); Olson, 750 F.3d at 714 (Rule 54(c) allows parties to oppose - or support - summary judgment with materials that themselves would be inadmissible at trial as long as the facts could later be presented in admissible form).
Perry Ridge and Mazza challenge various exhibits tendered in support of Plaintiff's summary judgment motion. They ask the Court to strike Exhibit D (the Declaration of Sean Mullins) and Exhibit P (the Declaration of Frank Fuchs), on the ground that the declarations "fail to recite that the declarants, if called to testify, could testify competently ...