United States District Court, S.D. Illinois
VICTOR E. WARD, Plaintiff,
DYNEGY INCORPORATED, Defendant.
MEMORANDUM AND ORDER
STACI M. YANDLE, District Judge.
This matter comes before the Court on defendant Dynegy Incorporated's ("Dynegy") (1) Motion for Summary Judgment (Doc. 13) to which plaintiff Victor E. Ward has responded (Doc. 15); and (2) Motion to Strike (Doc. 18) to which Ward has failed to respond. For the following reasons, the Court grants both motions.
Ward has been an employee of Dynegy at its Baldwin, Illinois, location since February 2002. Ward is a union member and works under a collective bargaining agreement between Dynegy and International Brotherhood of Electrical Workers, Local 51. In the course of his employment, Ward has made two complaints to Dynegy concerning his former group leader, Dave Mesch. The first complaint, made between 2002 and 2004, involved neither discrimination nor sexual harassment. Ward's 2007 complaint alleged Mesch had sexually harassed Ward, but it did not allege racial discrimination. After an investigation, Dynegy management disciplined Mesch. Mesch ultimately resigned his employment with Dynegy in December 2007. Other than this 2007 sexual harassment complaint against Mesch, Ward did not file any other sexual harassment or racial discrimination complaints with Dynegy.
In 2011, Dynegy promoted Ward to the position of shift tech. Dynegy management was aware of the 2007 sexual harassment complaint. Prior to his promotion, Ward earned $31.53 per hour as a unit attendant. Upon his promotion to shift tech, Ward earned $31.98 per hour. This rate of pay was in accord with the terms of the collective bargaining agreement. Ward complained that his rate of pay was lower than that of other shift techs. Dynegy launched an investigation of the other nine shift techs' pay. The sole inquiry in this investigation was to determine whether the other shift techs had been given the appropriate raise upon their promotion to shift tech under the terms of the collective bargaining agreement. The investigation revealed that two other employees, one Caucasian and one African-American, were overpaid upon their promotions to shift tech. Dynegy concluded that the remaining seven shift techs were given the appropriate raise upon their promotions.
Anthony Herbert, the African-American overpaid shift tech, was paid $37.96 per hour instead of $30.73 per hour as required by the collective bargaining agreement. Wes Sroka, the Caucasian overpaid shift tech, was paid $37.96 per hour instead of $30.75 per hour as required by the collective bargaining agreement. Upon discovering these pay discrepancies, Dynegy reduced Herbert's and Sroka's rates of pay to the appropriate levels, and they were not required to pay back the overpaid amount.
After Ward filed his EEOC charge of discrimination, Dynegy launched another pay investigation and discovered that another Caucasian shift tech, Korey Wedemeyer, was paid too much. Wedemeyer's pay discrepancy resulted from an inappropriate pay increase that occurred before his promotion to shift tech, unlike Herbert and Sroka who were given inappropriate raises upon their promotions to shift tech. Wedemeyer was earning $40.11 per hour, rather than the appropriate $33.19 under the collective bargaining agreement. After discovering the overpayment, Dynegy adjusted Wedemeyer's pay to the appropriate level pursuant to the terms of the collective bargaining agreement. Dynegy contends that the overpayments to these three employees resulted from a mistake. Ward conceded in his deposition that the only employee he believes was paid more than him for discriminatory reasons was Wedemeyer (Doc. 14-3, p. 20). Ward's sole basis for believing he was paid less than Wedemeyer are rumors that management at Dynegy were upset that Ward made the complaint that ultimately led to Mesch's departure from the company. Further, he asserts in his affidavit that the pay discrepancies could not have been a mistake because Dynegy's payroll clerk was supervised by Dynegy management.
On June 13, 2013, Ward filed his Complaint alleging that Dynegy discriminated on the basis of his race and retaliated against him in violation of Title VII of the Civil Rights Act of 1964. Dynegy filed its Motion for Summary Judgment arguing it is entitled to judgment as a matter of law because Ward cannot show that Dynegy intentionally discriminated and/or retaliated against him. Thereafter, Dynegy filed its Motion to Strike portions of Ward's affidavit. The Court will first take up Dynegy's Motion to Strike.
2. Motion to Strike (Doc. 18)
Dynegy asks the Court to strike portions of Paragraphs Two, Three, and Four of Ward's affidavit attached to his response to Dynegy's Motion for Summary Judgment. Ward failed to respond to Dynegy's motion to strike.
The Federal Rules of Civil Procedure provide that an affidavit or declaration offered to support or oppose a Motion for Summary Judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). A court therefore cannot consider declarations that are inadmissible as irrelevant or hearsay or that otherwise fail to satisfy the aforementioned Rule. Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir.1994); Adusumilli v. City of Chicago, 164 F.3d 353, 359 (7th Cir. 1998). Further, where there is a discrepancy between a deposition and a supplemental affidavit, the district courts have "great discretion" in determining whether to ignore "attempts to patch-up potentially damaging deposition testimony." Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999). As a final matter in considering a motion to strike, the Court must "use a scalpel, not a butcher knife" and only strike portions that are inadmissible under Fed.R.Civ.P. 56(c)(4) rather than strike an affidavit in its entirety. Upshaw v. Ford Motor Co., 576 F.3d 576, 593 (6th Cir. 2009). The Court will consider each paragraph in turn.
a. Paragraph Two Testimony
First, Dynegy asks the Court to strike the portion of Ward's testimony in Paragraph Two regarding P.J. Colston's alleged complaint to Dynegy. The following is the relevant portion of Paragraph Two:
2.... When Corey Wiedemeyer (sic) was awared (sic) the shift tech. position and given a higher rate of pay than he was qualified for, a coworker, PJ Colston made a complaint. PJ bid for the same position and had the two years as a unit attendant or four years working inside the plant. Corey did not. PJ complained about the fact that Corey won the bid and that he lacked the requisite experience and was being paid at a higher rate.... This cannot have ...