Opinion
Cause No. IP99-0043-C-T/G
October, 2000
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Clenton Stanback, alleges in his Complaint that Defendant, DaimlerChrysler Corporation ("Chrysler"), discriminated against him in the form of retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq. ("Title VII"), and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, et. seq., because he complained about sexual harassment. Chrysler moved for summary judgment on Stanback's claim on the ground that Stanback cannot establish a prima facie case of retaliation under Title VII.
I. Facts
Stanback is employed by Chrysler as a Security Officer. On or about November 18, 1997, Stanback slipped a report (hereinafter "Report") under the office door of Drew Reid, Manager of Security and Fire Prevention Services. The Report stated:
Subject[:] I will show you my tits Loralee Jones said.
About two weeks ago Loralee Jones Patricia Feemster and myself was at Main Gate I don't know how it got started but Loralee wanted to take her shirt off and show her tits she said do you want to see my tits and she unbuttoned one or two buttons on her shirt. I said No leave your shirt on and button up. Patricia told her if she take her brassiere off her tits would drop to her waistline she still wanted to disrobe at Main Gate. About that time cafeteria manager on days came in and Loralee said to the manager He do not want to see my tits. The cafeteria manager said Oh yes show the tits laugh and walked out after she gave me the keys. I refused to look at her tits sense then she have taken me to K. Brune — H. Crews and W. Bush. The word is I am talking to her in the wrong tone of voice I am not going to sugarcoat my voice for her You can check with Patricia to verify this.
/s/ C. Stanback
The alleged incident occurred on or about November 4, 1997. Stanback authored the Report a day or two after the alleged incident occurred. After writing the Report, Stanback spoke with his Union Steward, Calvin Hawkins, who told Stanback to present the Report to management. Stanback presented the Report to management about a week and one-half after he wrote it.
On November 19, 1997, Stanback had a conversation with Reid in his office, during which Reid asked Stanback whether Jones had exposed herself in any way. Stanback answered in the negative. Stanback also told Reid that he did not feel he was being sexually harassed by Jones and that he wanted Reid to hang on to the Report and not do anything with it. Stanback indicated to Reid that he wrote the report because he had heard that Jones had spoken to members of the plant management about him using the wrong tone of voice when he addressed her.
After Stanback learned that the Report would be sent to Detroit for investigation, Stanback requested that Hawkins attempt to retrieve the Report. Stanback did not want the Report sent to Detroit because he believed it would offend Jones and Feemster and make it more difficult for Stanback to work with them. Hawkins told Reid that Stanback wanted to withdraw the Report, however Reid did not return the Report to Hawkins or Reid.
In the Report, Stanback identifies Pat Feemster and Cora Ball as witnesses. Reid interviewed Jones, Feemster and Ball between November 24 and December 2, 1997. Jones and Feemster admitted to Reid that the topic of breast size was discussed in a conversation relating to Jones being fitted for a new uniform. At least Jones and Ball denied that Jones asked Stanback if he wanted to see her breasts, or that Jones exposed herself in any way.
On or about January 22, 1998, Stanback was interviewed by Brian Dilley of Chrysler's office of Work Force Diversity, a division responsible for investigating allegations of harassment throughout Chrysler. During the interview, Stanback told Dilley that the whole incident was just horseplay. Stanback also told Dilley that he had not been offended by the incident, and that he had learned that Jones had spoken with management about the manner in which Stanback spoke to her.
The only witnesses to the alleged incident that Stanback reported to Dilley were Jones, Feemster and Ball. Dilley interviewed the three witnesses and, again, Jones and Feemster admitted to him that the topic of breast size was discussed in a conversation relating to Jones being fitted for a new uniform. At least Jones and Ball denied that Jones asked Stanback if he wanted to see her breasts, and all three interviewees denied that Jones exposed herself in anyway.
Stanback was aware that under Chrysler's Standard of Conduct, a copy of which was given to Stanback when he began his employment, discipline up to and including discharge could result for "providing false and/or misleading information to the corporation." On February 11, 1998, Stanback received a memo indicating that Chrysler had reason to believe that Stanback made false allegations in connection with the Report based on facts discovered during the investigation. Thereafter, Stanback was suspended for five days. Stanback has not backed down from his description of the incident and maintains that the contents of the Report are true.
After Stanback was notified of the suspension, a fellow security guard, Matthew Rapp, contacted management and indicated that he had witnessed the incident but had not been interviewed. Reid interviewed Rapp on February 13, 1998, and Rapp indicated that he did not hear anyone offer to expose themselves before he exited the area where the alleged incident occurred. Rapp indicated that there existed another witness, Scott Stanley. Reid interviewed Stanley on February 13, 1998. Stanley indicated that the incident occurred about two weeks prior to his interview with Reid. Reid informed Stanley that he could not be reporting the same incident as the one described in the Report and Stanley declined to make a statement.
Stanback objects to this fact on the grounds that the terms "expose" and "themselves" are vague and conclusory. The objection is overruled because the terms as used are neither vague nor conclusory.
II. Discussion
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See e.g., King v. National Human Resource Comm., Inc., 218 F.3d 719, 723 (7th Cir. 2000); Fed.R.Civ.P. 56(c). "The burden is on the party moving for summary judgment to demonstrate the absence of a `genuine issue as to any material fact.'" Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 395 (7th Cir. 1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The evidence must be considered in light most favorable to the non-moving party, and all doubts regarding the existence of material facts are to be resolved in favor of the nonmovant. See Ransom, 217 F.3d at 468; Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). "If there is any doubt as to whether such an issue of fact exists, the summary judgment motion must fail." Casey v. Uddeholm Corp., 32 F.3d 1094, 1096 (7th Cir. 1994) (citation omitted); see also Devex Corp. v. Houdaille Indus., Inc., 382 F.2d 17, 21 (7th Cir. 1967) ("A long line of cases have held that summary judgment should not be granted if there is the `slightest doubt' as to the facts. . . . The fact that it may be surmised that the party against whom the motion is made is unlikely to prevail at trial is not sufficient to authorize summary judgment against him.") (quotation omitted). "To defeat a motion for summary judgment, the nonmoving party cannot rest on the mere allegations or denials contained in his pleadings, but must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic, 176 F.3d at 395 (quotation omitted).
Title VII provides that it shall be unlawful for an employer to retaliate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C.A. § 2000e-3(a) (West 1994). In his Complaint, Stanback alleges that Chrysler discriminated against him in the form of retaliation for his complaint of sexual harassment.
This section contains two clauses, a participation clause and an opposition clause. These clauses offer employees different levels of protection, with the participation clause offering employees a higher level of protection than does the opposition clause. There is some disagreement over which clause applies here. Chrysler argues that because Stanback did not file a charge with an administrative agency prior to the alleged adverse action, the participation clause does not apply. Stanback, of course, disagrees. However, this court need not address this issue of statutory interpretation, as the outcome to the present motion is not effected by its resolution. Furthermore, although Stanback contends that the participation clause applies, the arguments in his Brief in Opposition appear to be tailored to the standard of protection applicable under the opposition clause.
Chrysler denies Stanback's allegation and moves for summary judgment on the ground that Stanback cannot establish a prime facie case of retaliation.
"In order to prevail on a claim of retaliation, a plaintiff must either offer direct evidence of discrimination, or proceed under the burden-shifting method set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Smart v. Ball State Univ., 89 F.3d 437, 439 (7th Cir. 1996). To avoid summary judgment under the direct method of proof, a nonmovant may present direct or circumstantial evidence or both. See Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1995). Stanback first asserts that he has direct evidence to prove his claim. "Direct evidence essentially requires an admission by the decision-maker that his actions were based on the prohibited animus." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000) (citation omitted); see also Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999) ("A direct evidence assertion must be supported by allegations which, `if believed by the trier of fact will prove the particular fact in question without reliance upon inference or presumption.'") (quoting Eiland v. Trinity Hosp., 150 F.3d 747, 751 (7th Cir. 1998) (citations omitted)). The only "direct evidence" Stanback brings to the court's attention is the "Indianapolis Foundry Five Day D.L.O.," labeled Plaintiff's Exhibit 18, which states in part, "On November 18, 1997 you filed a sexual harassment complaint against a co-worker." (Pl.'s Br. in Opp'n at 7 (quoting Pl's Ex. 18)).
This is indeed direct evidence. However, it is only direct evidence that Chrysler labeled Stanback's Report a sexual harassment complaint. It is not at all direct evidence "that the employer retaliated against the plaintiff because he filed a sexual harassment complaint" as Stanback contends. (Pl.'s Br. in Opp'n at 7). Plaintiff's Exhibit 18 clearly states, "[B]ased upon the facts adduced during the investigation, there is reason to believe that you made a false allegation in connection with your complaint. As a result of your false allegation, you are being issued this written warning and a five (5) day disciplinary layoff[.]" (Pl.'s Ex. 18). In order to conclude from this Exhibit that Stanback was retaliated against for making the Report, this court must infer that because Chrysler labeled the Report as a sexual harassment complaint, Chrysler's action taken on the Report was in retaliation for Stanback's complaint. Stanback is asking the court to do too much to conclude that this is direct evidence of retaliation.
In the alternative, Stanback argues that he has indirect evidence sufficient to established a prima facie case of retaliation under the McDonnell Douglas burden shifting approach. Proving a prima facie case by a preponderance of the evidence is the first requirement of the McDonnell Douglas approach. See Smart, 89 F.3d at 439. To establish a prime facie case of retaliation, Stanback must show: "(1) that [he] engaged in statutorily protected activity; (2) that [he] suffered an adverse employment action; and (3) that there is a casual link between the protected activity and the adverse action." Wilson v. Chrysler Corp., 172 F.3d 500, 504 (7th Cir. 1999). Chrysler asserts that Stanback cannot establish element (1) of his prima facie case because Stanback did not reasonably believe in good faith that the conduct he complained of constituted sexual harassment.
Note that Stanback does not argue that he has circumstantial evidence, as defined in Troupe, 20 F.3d at 736, sufficient to avoid summary judgment under the direct method of proof. Rather, Stanback argues, "It would not matter if there were no direct evidence and the court examined the case under the defendant's `McDonnell Douglas' [sic] approach. In this case there is also indirect or circumstantial evidence." (Pl.'s Br. in Resp. at 8). Stanback then goes on to argue that he has evidence to satisfy his prima facie case.
Chrysler relies on Wilson v. UT Heath Center, 973 F.2d 1263 (5th Cir. 1992), and Monterio v. Poole Silver Co., 615 F.2d 4 (1st Cir. 1980), for support of its argument that Stanback cannot prove the first element of his prima facie case. These cases, however, do not support Chrysler's argument. Most importantly, these cases were not before the respective courts on motions for summary judgment, or other pretrial dispositive motions. Therefore, neither case was analyzed under the McDonnell Douglas burden-shifting approach. See e.g., Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc., — F.3d ___, 2000 WL 1202287, at *5 n. 3 (7th Cir. Aug. 24, 2000) ("[The McDonnell Douglas] approach only applies to pretrial proceeding, and drops out once a case goes to trial, that is once it is past the summary judgment stage.") (quotation omitted). In both cases a court made a finding of fact after a trial on the merits that the plaintiff did not prove that she/he was retaliated against for complaining of discrimination. In neither case did the court find a lack of proof of the plaintiff's prima facie case.
The Seventh Circuit in Hamner, 2000 WL 1202287, at *1, very recently addressed the requirements for satisfying the first element of a prima facie Title VII retaliation case. In Hamner, the court considered whether a plaintiff was protected under Title VII against retaliation for complaining to his employer about harassment based on his sexual orientation. See id. at 2. The court held that the conduct complained of was not proscribed by Title VII because Title VII does not prohibit employers from harassing employees because of their sexual orientation and, therefore, that "no reasonable jury could find that [Plaintiff] reasonably believed that his grievance was directed at an unlawful employment practice under Title VII." Id. at 4. In so holding, the court explained:
It is true that our cases hold that an employee may engage in statutorily protected expression under section 2000e-3(a) even if the challenged practice does not actually violate Title VII. It is sufficient if the plaintiff has a sincere and reasonable belief that he is opposing an unlawful practice. That means, for example, that even if the degree of discrimination does not reach a level where it affects the terms and conditions of employment, if the employee complains and the employer fires him because of the complaint, the retaliation claim could still be valid. But the complaint must involve discrimination that is prohibited by Title VII. The plaintiff must not only have a subjective (sincere, good faith) belief that he opposed an unlawful practice; his belief must also be objectively reasonable, which means that the complaint must involve discrimination that is prohibited by Title VII. . . . If a plaintiff opposed conduct that was not proscribed by Title VII . . . then his sincere belief that he opposed an unlawful practice cannot be reasonable. Id. (internal quotations and citations omitted); see also, e.g., Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir. 1982) (holding that a plaintiff is protected from retaliation for opposing discrimination "even if he was mistaken and there was no discrimination") (citation omitted).
Here, there is no question that Stanback's belief was objectively reasonable. Although the alleged sexual harassment may not have been actionable because Stanback was not personally offended by the conduct he complained of, see Cowan v. Prudential Ins. Co. of America, 141 F.3d 751, 757 (7th Cir. 1998) (holding that "only [sexual] harassment which subjectively offends the plaintiff is actionable" under a hostile work environment claim); Pl.'s Br. in Opp'n at 12, the category of conduct that Stanback complained of is proscribed by Title VII.
The issue before the court is whether Stanback had a subjective belief that he opposed sexual harassment, an unlawful practice. Chrysler claims that Stanback is not entitled to the protection of Title VII because he did not reasonably believe in good faith that the practice he opposed violated Title VII. Stanback disputes this and contends that he did believe that the conduct he complained of constituted sexual harassment even though he was not offended by the conduct. Stanback also contends that the Report was founded in fact and that its contents are true. Based on the Seventh Circuit's recent opinion in Hamner, this court will analyze Stanback's subjective belief in terms of its sincerity and good faith.
Chrysler uses the phrase "reasonably believed," not in an objective sense, but rather in a subjective sense. Chrysler argues that Stanback did not subjectively believe that the conduct he complained of violated Title VII.
Chrysler first contends that Stanback's comments made after the Report was filed indicate that he did not believe the conduct he complained of violated Title VII. Chrysler maintains that Stanback told Reid he did not feel that he had been sexually harassed, that he told Dilley that he considered the conversation to be horseplay, and that he stated that he was not offended by the conduct. Chrysler infers from these comments that Stanback did not believe that the conduct he reported constituted sexual harassment. Stanback disputes Chrysler's inference. Stanback contends that even though he may not have been personally offended by the conduct complained of, he did believe that such conduct constituted sexual harassment. (See Stanback Dep. 106:22-25, 143:15-18, 156:6-14).
Because all reasonable inferences must be made in favor of the nonmovant and because the inference Stanback begs be drawn is reasonable, that is the inference that the court must draw for the purpose of deciding this motion for summary judgment. Therefore, there exists an issue of fact as to whether Stanback believed that the conduct about which he complained constituted sexual harassment.
Next, Chrysler maintains that Stanback's delay in reporting the conduct and his request that nothing be done with the Report support the conclusion that Stanback's complaint was insincere. Stanback, however, contends that he requested that nothing be done with the Report because he believed that if action was taken on the Report it would be even more difficult to work with Jones and Feemster than it had been in the past. (See Stanback Aff. ¶ 23). The court gets the sense from reading the voluminous filings in this case that even before the Report was filed, Jones and Stanback had something less than an ideal working relationship. The inference that Stanback advances is a reasonable inference that can be drawn from these facts. It the duty of the jury to weigh these competing inferences and make the ultimate decision as to which inference should be drawn.
Chrysler argues that Stanback was aware that he was reporting conduct that would require an investigation by Chrysler's Work Force Diversity Office. Chrysler also points out that when Stanback found out that the Report would be investigated by Work Force Diversity, he asked his union representative to retrieve the Report. Stanback disputes the accuracy of these assertions and the inference that Chrysler is drawing therefrom.
Stanback maintains that when he learned that the Report would be sent to Detroit for investigation, he requested that the Report be returned to him. Stanback maintains that he was interested in having the Report investigated at the local level (see Stanback Aff. ¶ 23, Stanback Dep. 107:20-108:04), which apparently is not an impossible request. Chrysler admits that on occasion, Work Force Diversity will elect to have a local investigation conducted solely by local investigators. Therefore, it is possible to conclude that Stanback requested the Report be returned to him because it was being sent to Detroit for investigation and not simply because it was being investigated, as Chrysler maintains. Because more than one reasonable inference can be drawn from these facts, it is for the jury to determine which inference should be drawn.
Chrysler argues that Stanback's Report lacked good faith because (1) Stanback told Reid that he had filed the Report because he had heard that Jones had complained about him to management and (2) Chrysler concluded after its internal investigation that several statements in the Report were misrepresentations. Chrysler notes that Stanback was concerned about Jones's report to management and infers that Stanback took preemptive action against Jones by filing the Report to divert management's attention from Jones's complaints. Chrysler bases its assertion that misrepresentations appeared in the Report on its internal investigation which included interviews of witnesses to the incident discussed in the Report. Chrysler alleges that none of the witnesses interviewed supported Stanback's claim that Jones asked him if he wanted to see her breasts or that she exposed herself in any way.
As to the first reason Chrysler puts forth in support of its conclusion that the Report was not made in good faith, Stanback contends that he wanted management "to know what was really happening at the main gate [guard shack]." (Pl.'s Br. in Opp'n at 20; see Stanback Aff. ¶ 18, Stanback Dep. 96:21-22)). Although it may be true that Stanback was motivated in filing the Report by Jones's complaints to management as Chrysler contends, it is not a necessary conclusion that Stanback made misrepresentations in the Report.
As to the alleged misrepresentations in the Report, Stanback maintains that none exist. Chrysler contends that "each witness denied that Jones asked the Plaintiff if he wanted to see her breasts or that Jones exposed herself in any way, including unbuttoning any portion of her blouse." (Def.'s Br. in Supp. at 13). Stanback does not dispute that Jones did not expose herself to him. Furthermore, Stanback maintains that he never accused Jones of exposing herself to him. The relevant portion of the Report reads,
"Loralee wanted to take her shirt off and show her tits she said do you want to see my tits and she unbutton one or two buttons on her shirt. I said No leave your shirt on and button up." This portion of the Report can be interpreted in more than one way. A reasonable jury could conclude that this language does not accuse Jones of exposing herself to Stanback and, although written with a certain degree of imprecision, is not inaccurate.
Chrysler further concludes that Stanback made misrepresentations in the Report based on its internal interviews of the witnesses to the incident. Chrysler is requesting this court to judge the credibility of the witnesses and accept their statements to Chrysler's internal investigators as true, and conclude as a matter of law that statements made in the Report were false and thus Stanback's complaint of sexual harassment was not made in good faith. It is not the role of this court in deciding a motion for summary judgment to judge the credibility of witnesses. See, e.g., Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000). Moreover, Chrysler is asking the court to determine that Chrysler's witnesses are more credible than Stanback when the deposition testimony of its witnesses given under oath are at times in direct conflict. For example:
— while Jones admits that she and Feemster had a conversation about shirt sizes (see Jones Dep. 51:19-53:21, 61:20-62:11), Feemster denies that such a conversation concerning shirt sizes took place (see Feemster Dep. 6:25-7:13, 10:24-11:22)
— Feemster testified that Jones stated that she would show herself to anyone, (see Feemster Dep. 8:21-9:23), but Jones does not admit to making such a statement and denies that she said anything "sexually or something toward him" (Jones Dep. 54:24-55:25)
— Jones testified that she always had the top shirt button buttoned (see Jones Dep. 72:22-73:22), while Reid admitted that Jones testimony in that regard was false (see Reid Dep. 16:12-18:15)
The truth of the allegations in the Report presents a classic "he said, she said" scenario. From the testimony given in this case so far, it would require credibility judgments to determine exactly what occurred in the guard shack on November 4, 1997.
Summary judgment is not an appropriate stage at which to evaluate credibility. Chrysler, in essence, is requesting that this court find as a matter of law, based on the often conflicting testimony, that Stanback did not complain in good faith about sexual harassment because he made false statements in the Report. Stanback has consistently maintained the accuracy of the Report, despite the fact that others dispute it. He also consistently maintains that he was reporting sexual harassment, even if it was not offensive to him, and despite the assertions by others with first hand knowledge of the events that it was not sexual or harassment. When all of the evidence is weighed, Stanback's assertions about the reported events may not be believed. He may not be believed when he says he was reporting sexual harassment that he described as not offensive to him. Nonetheless, he has raised genuine questions of fact on those points. Whether Stanback complained in good faith is a matter of fact that must be determined by a jury.
This court cannot determine as a matter of law that Stanback's subjective belief that he opposed conduct proscribed by Title VII was insincere and in bad faith. Therefore, summary judgment in favor of Chrysler on the ground that Stanback has failed to establish the first element of his prima facie case is not appropriate. Note that in its Reply Brief, Chrysler argues for the first time that even if Stanback is able to establish his prima facie case, summary judgment in Chrysler's favor is still appropriate because no evidence exists that the proffered reason for Stanback's suspension was pretext for retaliation. In fact, much of the argument presented in Chrysler's Reply goes to this very issue. Chrysler spends a good deal of its brief arguing that Stanback was suspended because he made false allegations in his Report and not in retaliation for his complaint. However, that is not the subject of Chrysler's argument in its Brief in Support of its motion. In its initial brief, Chrysler focused on its assertion that Stanback did not reasonably believe in good faith that the conduct he opposed violated Title VII. By turning to the contention in its Reply Brief that Stanback cannot show pretext, Chrysler is presenting an entirely different argument than the one presented in its initial Brief in Support. And, although it may be true that Chrysler's reason for suspending Stanback was not pretext, because this pretext argument was raised for the first time in reply, this court will not consider it in ruling on Chrysler's motion. See Hall v. Cropmate, 887 F. Supp. 1193, 1198-99 (S.D.Ind. 1995) (holding that in a motion for summary judgment "[i]t is well established that new arguments may not be raised first in a reply brief — a party must state all of its reasons in support of a motion the first time around") (citations omitted). A reply brief is not the time to raise new arguments.
For if the court allowed movants to raise new arguments in their reply briefs one of two results would follow: either there would be no end to the briefing process or the movant would have an unfair advantage over the nonmovant.
Chrysler has moved for leave to submit supplemental authority, namely Equal Employment Opportunity Commission v. Total System Services, Inc., 221 F.3d 1171 (11th Cir. 2000). This case, however, does not advance Chrysler's argument that Stanback failed to establish the first element of his prima facie case. Although this case was before the court on appeal from the district court's grant of summary judgment for the defendant, the decision of the court is not based on the plaintiff's failure (or nonfailure) to establish its prima facie case of retaliation. Rather, the court in this case concluded that "the district court was correct in granting summary judgment for Defendant because the EEOC has failed to show pretext to rebut Defendant's proffered legitimate nondiscriminatory reason for terminating Warren." Id. at 1175 (emphasis added). That Chrysler's reason for suspending Stanback was not pretext is not an argument that is properly before this court. Thus, Total System is not relevant to this discussion. Chrysler's motion is therefore DENIED.
In addition to its motion for summary judgment, Chrysler filed two motions to strike. The first moves to strike certain paragraphs of Stanback's affidavit, Rapp's affidavit, Hawkin's affidavit and Stanley's affidavit on the grounds that the testimony contained therein is not based of the affiants' personal knowledge, is hearsay and is conclusory. The second motion moves to strike (1) Plaintiff's Surreply Brief and (2) Plaintiff's Surreply to Defendant's Reply to Plaintiff's Response to Defendant's Statement of Material Facts on the grounds that the filings do not comply with Local Rule 56.1 because Stanback's responses were not to "new evidence and objections." In the alternative, Chrysler requests that it be given an opportunity to respond to all arguments presented therein. It is not necessary for the court to reach the merits of these motions. None of the material that Chrysler moves to strike was considered by the court in rendering its decision. The material that Chrysler moves to strike did not have any effect whatsoever on the outcome of Chrysler's summary judgment motion. The court will GRANT the motions to strike without evaluation or discussion because summary judgment is not appropriate without even considering the materials Chrysler is opposing. There is no need for Chrysler to respond to the materials because they were not considered and its request to respond is DENIED.
For the foregoing reasons, Chrysler's motion for summary judgment is DENIED.
ALL OF WHICH IS ORDERED this day of October 2000.