Miller v. Riverside RV, Inc.

455 F.Supp.3d 813

Michelle MILLER, Plaintiff,

v.RIVERSIDE RV, INC., Defendant.

Cause No. 1:18-CV-173-HAB

United States District Court, N.D. Indiana, Fort Wayne Division.

Signed April 23, 2020

Alexandra M. Curlin, Robin C. Clay, Curlin & Clay Law, Amber K. Boyd, Amber Boyd Attorney at Law, Indianapolis, IN, for Plaintiff.

Eric J. Hartz, Jason P. Cleveland, Meghan U. Lehner, Cleveland Lehner Cassidy, Indianapolis, IN, for Defendant.

OPINION AND ORDER

HOLLY A. BRADY, JUDGE

Plaintiff Michelle Miller ("Michelle") was a shipping coordinator at Defendant Riverside RV, Inc. ("Riverside") for almost two years. For the first eighteen months, Michelle had no apparent performance issues. Then, after a seizure episode on the job, a subsequent two-week medical leave, and reduced hours upon her return, Michelle was fired. Michelle asserts that her firing was the result of discrimination and retaliation, while Riverside claims that she failed to perform her job to its legitimate expectations. Riverside now asks this Court to enter summary judgment in its favor.

A. Riverside's Evidentiary Objections

Before addressing the merits of Riverside's summary judgment motion, the Court is compelled to discuss the multiple evidentiary objections lodged by Riverside. These objections take two forms: first, an eight-page, point-by-point objection to the factual recitation in Michelle's summary judgment response, which Riverside placed at the beginning of its reply brief (ECF No. 53 at 2–9); and, second, a motion to strike an affidavit submitted in support of Michelle's response (ECF No. 53).

1. Riverside's Reply

The objections in Riverside's reply take two forms: 1) complaints that the "cited testimony" does not support the factual assertion; and 2) disagreements with the inferences drawn from the testimony. Neither is helpful to the Court. Instead, Riverside's objections have wasted time and resources.

The "cited testimony" objections are of particular concern to the Court. On several occasions, Riverside identifies a factual assertion made by Michelle in her response, quotes the evidence cited by Michelle in support of the assertion, and argues that the "cited testimony does not support this statement." (See , e.g. , ECF No. 52 at 9). The natural inference to draw from Riverside's lengthy evidentiary discussion is that Michelle's assertions are not supported anywhere in the record. This was the inference the Court drew, at least until it reviewed the record in its entirety.

What the Court discovered during its review of the record was that Michelle's assertions were supported in the record, just not in the specific areas she cited. For instance, Michelle cited to her deposition at page 42, line 25 in support of her claim that she discussed her seizures with Ruth Hershberger ("Ruth"), Riverside's Vice President. The correct citation is to page 96, lines 4 through 6. Similarly, Michelle cited to page 109, lines 7 through 11 of her deposition in support of her claim that Merv Lehman ("Merv"), her supervisor at Riverside, called her husband regarding her medical condition. The correct citation is to page 108, lines 22 through 24. There are several more examples of incorrect citations, all identified with excruciating detail by Riverside.

Michelle's counsel should have taken more care in drafting her brief. Incorrect citations do create needless work for the Court. However, these citation errors could have been addressed in a footnote by Riverside. Alternatively, Riverside could have assisted the Court by directing the Court to the correct areas of the record. What Riverside chose to do, effectively multiply the waste of resources by implying that Michelle's facts were entirely without support in the record, was unhelpful. It unnecessarily extended the briefing, forced the Court to check citations on even the most benign points.

Riverside's objections to Michelle's inferences are little more helpful. Take, for instance, Michelle's assertion that Merv "had no issues" with her performance. The cited testimony demonstrates that Merv did develop issues regarding Michelle's performance as it related to "the company's bottom line," but not until after Michelle's termination. The Court has no issue, then, with the representation that Merv had no issues with Michelle's performance during the relevant period; i.e., during her employment. In another instance, Riverside draws the questionable semantic distinction between Merv "giving [Michelle] a chance" and "working with [Michelle] to accommodate" her when she returned from medical leave. In yet another instance, Riverside claims that Michelle "made it up" when she stated that Ruth testified that Michelle "had an attitude." But Ruth testified that "it was a struggle for me to deal with [Michelle], because of not knowing how she would respond to me." (ECF No. 51-7 at 5). Michelle's characterization of this testimony is certainly reasonable.

The Court would not be so concerned about Riverside's conduct if, as noted above, it was contained in a footnote or some other fleeting reference. Instead, Riverside devotes the first nine pages of its sixteen-page reply to these specious evidentiary objections. These objections do nothing to help the Court resolve the issues presented in the motion for summary judgment.

2. Riverside's Motion to Strike

Riverside's Motion to Strike (ECF No. 53) argues that Michelle's affidavit, submitted in opposition to Riverside's summary judgment motion, should be stricken as a "sham affidavit." The rule against sham affidavits provides that an affidavit is inadmissible when it contradicts the affiant's previous sworn testimony unless the earlier testimony was ambiguous, confusing, or the result of a memory lapse. See , e.g. , Cook v. O'Neill , 803 F.3d 296, 298 (7th Cir. 2015). The rule is designed to avoid sham factual issues and prevent parties from taking back concessions that later prove ill-advised. United States v. Funds in the Amount of $271,080 , 816 F.3d 903, 907 (7th Cir. 2016). The Seventh Circuit has emphasized that the rule is to be used with "great caution." Id. Thus, where the change is plausible or the party offers a suitable explanation for the change, the changes in testimony go to the witness’ credibility rather than admissibility. Id.

It is not clear that any of the instances identified by Riverside are the kind of "incredible and unexplained" changes in testimony for which the rule is intended. Like the objections in its reply, many of the identified instances address the interpretation of testimony rather than actual discrepancies. (See ECF No. 53 at 3, 4). Others are not discrepancies but instead simply supply additional information. (Id. at 2). In others, the affidavit testimony may contradict the cited testimony but it is arguably supported by other testimony. (Id. at 3). Even Riverside concedes that, rather than contradicting Michelle's deposition, much of her affidavit "simply restates Plaintiff's deposition testimony, but presents that testimony in a way more favorable to her than what she testified." (Id. at 4).

Riverside disagrees with the facts set forth in Michelle's affidavit; in its most incredible argument, Riverside argues that the affidavit should be stricken because it conflicts with Merv's testimony. (Id. ). But disagreement, no matter how vehement, is not a legal basis to strike testimony. In any event, because the Court can distinguish which exhibits, affidavits, and statements may properly be considered when deciding whether summary judgment is appropriate, the Court denies Riverside's Motion to Strike. The Court has noted Riverside's objections and will consider the objections to the extent they arise in the Court's summary judgment analysis.

B. Factual Background

Michelle began working at Riverside on July 25, 2015, as a shipping coordinator. Her duties were to ship RVs to dealerships and to arrange shipment with transport companies. For most of her employment, the designated evidence demonstrates that Michelle was performing her job duties well. She never received a written or verbal warning about her job performance. Her direct supervisor, Merv, had no issues with Michelle's performance at any time during her employment with Riverside.

In December 2016, Michelle began suffering from seizures. Her condition limited her ability to speak and drive, and further affected her cognitive abilities. The medication she took for her condition affected her memory, work pace, and eyesight, and caused fatigue.

Michelle did not keep her condition a secret; she testified that she talked to almost everyone in Riverside's office about her condition, including Merv and Ruth. On January 13, 2017, Michelle gave Merv a doctor's note stating that she was being treated for a neurological condition. Michelle asked Merv if Riverside needed any additional information regarding her condition and Merv responded that it was not necessary. Prior to her eventual leave, Michelle requested three total days off work as a result of her condition.

On January 23, 2017, Michelle had a seizure episode at Riverside. Merv observed Michelle walking around Riverside's parking lot in a disoriented state and became concerned about her condition. Merv sent Michelle home, directing another Riverside employee to drive Michelle out of a concern for her ability to drive. Merv also contacted Michelle's husband to tell him that Michelle had been sent home and that Michelle was being put on leave. Michelle was off work from January 23, 2017, through February 5, 2017, as a result of her condition, spending three of those days in the hospital.

Ruth covered Michelle's job duties during the approximately two-week leave. According to Ruth, she discovered several problems with Michelle's performance during that period. The "yard count," the number of RVs waiting for shipment, was "really high." (ECF No. 41 at 4). Ruth was able to reduce the yard count by 33% during Michelle's leave.¹ Ruth also learned that...