Opinion
IP 00-0413-C-T/K
March 8, 2002
Entry on Motion for Summary Judgment and Related Motions
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff brought claims for race discrimination and retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Defendant moved for summary judgment on Plaintiff's claims. The briefing and filings related to that motion have, unfortunately, spurred additional motions. The court rules on all pending motions in this entry.
I. Summary Judgment Standard
Summary judgment is proper only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of informing the court of the basis for its motion and demonstrating the "absence of evidence on an essential element of the non-moving party's case." Celotex Corp., 477 U.S. at 323, 325. To withstand a motion for summary judgment, the non-moving party may not simply rest on the pleadings, but must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial. . . ." Id. at 322. If the non-moving party fails to make this showing, then the moving party is entitled to judgment as a matter of law. Id. at 323.
The court views the record and draws all reasonable inferences in the light most favorable to the non-moving party. Alexander v. Wis. Dep't Health Human Servs., 263 F.3d 673, 680 (7th Cir. 2001). No genuine issue exists if the record viewed as a whole could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. Background Facts
These facts are not disputed unless otherwise noted. Additional facts may be set forth in the Discussion section as necessary. That section also addresses various factual disputes by the parties. The parties will note that they had many more disputes about the factual submissions than the court has addressed. That is because the disputes that are addressed in this entry are the only ones that were material to the issues that had to be decided to conclude that summary judgment is required. Even if all of the many other unresolved disputes about factual submissions were to be resolved in favor of McDaniel, her claims could not have survived summary judgment.
On August 12, 1999, EagleCare hired Inger McDaniel as Social Services/Admissions Director at Riverview Transitional Care Unit ("TCU"), a newly opened unit that was without patients until October 1999. David Woods, Regional Director of EagleCare Operations, was reassigned to oversee TCU on an interim basis and briefly supervised McDaniel beginning in mid-November 1999. Because he had little personal knowledge of McDaniel's performance, he relied on the notes of her prior supervisor to complete her November 19, 1999, performance evaluation.
On December 30, 1999, Corporate Nurse Consultant Genia Karnes conducted a routine audit of TCU patient charts to ensure they met state regulations and facility standards for accuracy, completeness and timeliness. Her notes reflected that she found various charts that were without proper or timely documentation, or both, in the Social Services and Activities sections. She reported that some charts she reviewed were missing information for which McDaniel was responsible. The audit indicated some charts had no Social Services notes at all, not even an initial assessment.
Though McDaniel disputes this factual assertion in EagleCare's Statement of Material Fact ("SMF") 11, she does not cite to any evidence in the record to refute that she was responsible for some of the missing information. Instead, she offers immaterial explanations as to why the information was not in the charts. Her dispute and implicit objection are OVERRULED.
Karnes made a handwritten list of the deficient charts with notes about what was missing from or out of compliance in each. As was her practice, she did not discuss her findings with the department head responsible for the charting, but provided her handwritten inventory to Angie Whetro, TCU's Director of Nursing, and Interim Executive Director Woods for follow-up. Since the new Executive Director, Tabby McCreary, was scheduled to begin work in a few days, Whetro and Woods provided Karens' audit notes to McCreary for follow up.
McCreary began work at the TCU on January 3, 2000. On January 7, she placed the audit notes in McDaniel's mailbox with a note asking for clarification of the omissions and inconsistencies: "Inger — what is status of completion? Please advise. Thanks! Tabby." (McDaniel Dep. Ex. 11.) Before January 7, McCreary checked the charts on Karnes' list and confirmed Karnes' observations, i.e., that there was no Social Services information in the charts, or the information was not up-to-date, or both.
This assertion is made in SMF 20, and McDaniel agrees with the assertion, though she adds that the audit was "strange" and "confusing." This commentary does not raise any issue of material fact.
Christine Raisovich, Human Resources Director, also confirmed with Karnes the lack of, or insufficiency of, documentation, or both. McDaniel responded to McCreary's inquiry by stating that, except for two, the documents in question were in the charts and must have been overlooked by Karnes. Upon receiving McDaniel's response, McCreary rechecked the charts and found that some previously missing documents had appeared, some dated before December 30, 1999. Concerned initially about the lack of documentation and noncompliant charts, McCreary was alarmed because the sequence of events, the appearance of previously missing documents, and the inconsistent document dates suggested that documents may have been back-dated, a serious violation of facility policy and state regulations.
On January 13, Whetro reported to McCreary that she overheard McDaniel and Office Manager Annette Jones at the copy machine at the nurse's station disparaging McCreary's management abilities and making negative statements about a memorandum requiring accurate reporting of time. Concerned that inappropriate, non-work related conversations might be occurring in common areas within earshot of physician referral sources or residents, and wanting to address any problems or concerns department heads had about her, McCreary called together Whetro, McDaniel and Jones to discuss the matter. During the meeting, McCreary said it had been reported to her that they had been critiquing management in public and asked if there was any problem. She did not name or identify McDaniel as the person she believed had made inappropriate comments. She directed her inquiry to both Jones and McDaniel. As McDaniel testified, "[McCreary] didn't say a name but her eyes were looking at me. Myself, Annette and Angie." (McDaniel Dep. at 111, 256.) McDaniel told McCreary that the conversation at the copier machine was about Jones's former job and had nothing to do with McCreary. McCreary then criticized McDaniel's performance, and McDaniel told McCreary that "you are targeting me." (Id. at 134.)
The preceding four sentences are contained in SMF 29. McDaniel disputes it by asserting that though McCreary did not mention any names, she directed her actions and comments toward McDaniel. The SMF remains undisputed, and McDaniel's response adds nothing — EagleCare's SMF says that McCreary directed her inquiry toward McDaniel. So, McDaniel's dispute and implicit objection are OVERRULED.
Whether McDaniel's comment to McCreary that the conversation had nothing to do with her "caused" McCreary to criticize McDaniel is irrelevant.
McDaniel also told McCreary she believed that McCreary being hired as Executive Director created a conflict of interest because McCreary and Whetro knew each other from prior work together, and she believed McCreary would not follow up on complaints about Whetro.
On January 14, Woods and McCreary met with McDaniel to discuss with her the charting deficiencies, variances, and inconsistencies identified in the December 30 audit; McDaniel's written responses to those issues; and EagleCare's concerns that backdated documents had been placed in the charts after the deficiencies were brought to McDaniel's attention. Woods and McCreary accused McDaniel of falsifying and back dating charts. Woods attempted to request McDaniel's input and explanation of the discrepancies. McDaniel insisted that the notes were in the chart on December 30 and blamed Karnes for overlooking them. McDaniel did admit that information on two patients was missing from their charts. She disputed the time frames for completion and placement in the charts of certain records and suggested they were either unnecessary or inconsistent with a policy manual she had received from a consultant.
McDaniel's Statement of Additional Material Fact ("AMF") 214 makes this assertion and McDaniel so testified in her deposition. (McDaniel Dep. at 143.) Thus, it is accepted as true, contrary to EagleCare's dispute.
Though McDaniel's response to this assertion in SMF 39 purports to dispute the assertion, it really admits it and merely adds additional information by way of explanation. The dispute and implicit objection are OVERRULED.
McDaniel reiterated to Woods her disagreement with McCreary's hiring because McCreary had previously worked with Whetro. McDaniel also told Woods and McCreary that she felt like she was being targeted for harassment and discrimination because she did not feel anyone else was having to go through the same process.
Though she did not specifically say that she felt the harassment and discrimination were because of her race, at least Woods understood her to be referring to race. (Woods Dep. at 53.) Woods reported the events of January 14 to Raisovich in a written memo.
McDaniel does not claim that she told Woods and McCreary that she felt the harassment and discrimination were due to her race. When asked whether she had said she was being racially harassed or had mentioned race at all, McDaniel testified in the negative: "No. I said discriminated and harassed." (McDaniel Dep. at 151.)
McCreary and Woods put McDaniel on a Performance Improvement Plan ("PIP") that outlined their expectations for required time frames and content of various types of charting. McDaniel understood those were the expected standards and time frames.
They provided the PIP to her on January 18. The PIP stated that "patient history will be on the chart within 72 hours." (McCreary Dep. at 151.)
McCreary placed a note in McDaniel's mail to inquire whether she was retaining pre-admission assessment forms. McDaniel believed that this inquiry was an example of her being "singled out."
EagleCare management received complaints about McDaniel's refusing to conduct resident assessments, failing to perform sufficient outside marketing visits, pulling in therapists to answer family questions regarding discharge plans, failing to adequately complete discharge planning responsibilities, being insubordinate, and making rude or negative statements about the unit and its management, including McCreary, to physicians, families, and other non-EagleCare employees and EagleCare employees outside of TCU. In addition, various individuals reported to Woods and
This is asserted in SMF 56. McDaniel disputes it, but cites no record evidence. Thus, the assertion remains unrefuted and is deemed admitted.
McCreary that they believed that McDaniel was discussing personnel matters on and off the unit, at Riverwalk (EagleCare's nearby sister facility), and with Riverview Hospital employees. EagleCare and TCU management received reports and believed that McDaniel was observed and was overheard involving residents in personnel and management issues by announcing to them her complaints about EagleCare's treatment of her, the chart audit, and the January 18 PIP. Therapists complained to McCreary that McDaniel was not properly doing discharge planning, was burdening therapists with tasks for which she was responsible, had "dropped the ball," and was observed being rude to families. Raisovich was made aware of these problems. In addition, patients complained about lack of communication from McDaniel regarding delivery of equipment and other discharge matters.
McCreary continued randomly to review patient charts and discovered missing Social Services documentation and patient charting which appeared to be backdated.
Though McDaniel objects to this assertion of fact contained in SMF 66, she objects only on the grounds that the statements of Raisovich and Woods are inadmissible hearsay; she does not object to McCreary's testimony and that testimony substantiates the SMF. Thus, the objection is OVERRULED.
McDaniel observed McCreary making copies of portions of her charts. McDaniel believes this was "kind of sneaky" (McDaniel at 117) because she did not observe McCreary looking at anyone else's charts, though McDaniel admits that McCreary may have looked at and copied others' charts when she was unable to observe McCreary's actions.
Whetro complained to McCreary that she could not complete MDS forms because Social Services information was not being provided by McDaniel according to schedule. McDaniel refused McCreary's instruction to do an assessment at St.
This assertion is the first statement in SMF 67. Though McDaniel makes an objection based on hearsay to the second sentence of SMF 67, she does not object to the first sentence.
Vincent Carmel Hospital, explaining that she was from the south and unwilling to drive in snowy weather. Raisovich learned that McDaniel interfered in operational issues by refusing to allow a resident's spouse to take a shower in the unit after Regional Director Woods had already granted the family member permission to do so.
McDaniel responds to this assertion in the SMF 68, arguing that it is not material. She is wrong, as it is evidence of McDaniel's failure or refusal to comply with her supervisor's instruction.
On February 3, McCreary issued a memorandum dated January 13 to all salaried, non-exempt employees reminding them that they must record exactly their arrival and departure times, not the total hours they were scheduled to work as had been tolerated by the previous Executive Director. McCreary and Woods believed McDaniel's time card did not accurately reflect her arrival and departure times.
McDaniel denies that she falsified her time sheets. The court therefore, viewing the evidence in the light most favorable to her, accepts that she did not falsify her time sheets. McDaniel, however, offers no evidence to contradict the evidence that McCreary and Woods believed that her time card did not accurately reflect her time worked.
EagleCare was concerned McDaniel was falsifying her time sheets based on the "disconnect" between McDaniel's observed starting and ending times on the unit and the times she recorded. Woods identified and reported to Raisovich one situation where McDaniel certified on her time card that she had arrived on the unit earlier than she actually did.
McDaniel sent a letter, titled, "Harassment, Discrimination and Hostile Working Environment," dated January 15, 2000, to Raisovich and Phil Caldwell, EagleCare's President, complaining about McCreary's treatment of her. This letter is the complaint of discrimination to which McDaniel refers in her lawsuit and is the protected activity for which she alleges EagleCare retaliated against her. The basis for McDaniel's complaint in the letter is that she alleges (1) she is the only black department head and full-time employee at the TCU and (2) she feels that she has been "targeted for harassment, discrimination and hostile working conditions" by McCreary. (McDaniel Dep., Ex. 13.)
McDaniel describes in her letter the events that she claims support her complaint: (1) McCreary's January 7 inquiry about the status of completion of the charts audited by Karnes on December 30; (2) McCreary gave her on January 12 a copy of the Indiana statute regarding pre-admission forms and inquired whether she was retaining those forms; (3) on January 13 McCreary accused her of talking about McCreary in a public area; (4) the January 14 meeting with Woods to discuss the audit and charting deficiencies; (5) the January 18 PIP; and (6) comments allegedly made in the January 14 meeting by McCreary and Woods.
Raisovich undertook an investigation into McDaniel's complaints. Raisovich talked with McDaniel on January 26 for almost one hour to obtain information and background about her complaint and allegations. Raisovich called her back the next day to obtain additional information. Unbeknownst to Raisovich at the time, McDaniel tape recorded both conversations. Raisovich interviewed and contemporaneously recorded notes of conversations with Director of Nursing Whetro, Officer Manager Jones, Regional Director Woods, Nurse Consultant Karnes, and Executive Director McCreary. Raisovich was unable to conclude that any race-based harassment or discrimination had occurred at the TCU because she found no evidence or proof to support that anything happened on the basis of McDaniel's race.
McDaniel argues this fact is not material, but as EagleCare suggests, it does reflect on EagleCare's assessment of McDaniel.
McDaniel commenced this action on March 8, 2000, alleging race discrimination and retaliation under Title VII and § 1981.
III. Discussion
A. Motion to Strike Inadmissible Hearsay in Defendant's Brief
McDaniel filed a motion to strike portions of EagleCare's brief in support of its motion for summary judgment, arguing that it has relied on inadmissible hearsay. She also objected to numerous SMFs on hearsay grounds, among them: 58, 62, 63, 65, 67, 69, 70, 72, 78, 79, and 81.
"Hearsay" is an out-of-court statement offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Though a party may not rely on inadmissible hearsay evidence at the summary judgment stage, Minor v. Ivy Tech State College, 174 F.3d 855, 856 (7th Cir. 1999); Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997), the statements referenced in the aforementioned SMFs (and others challenged by McDaniel as well) are not offered for the truth of the matter asserted. Instead, they are offered to show that they were made, that EagleCare management relied on them in making the decision to terminate McDaniel's employment, and that management honestly believed in the reasons offered for her termination. As such, the statements are not hearsay. See, e.g., Stewart v. Henderson, 207 F.3d 374, 377 (7th Cir. 2000) (holding affidavit of chairperson of committee that had reviewed candidates for position in question containing statement of other committee members not hearsay because it was not offered to prove truth of matter asserted but to show what motivated the decision to not recommend plaintiff for position); Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997) (stating that internal documents relied upon by an employer in making its decision are not hearsay and are "admissible because they help explain (or may help explain) the employer's conduct."). McDaniel's motion to strike inadmissible hearsay from EagleCare's summary judgment brief and her objections based on hearsay grounds to SMFs 58, 62, 63, 65, 67, 69, 70, 72, 78, 79, and 81 are therefore DENIED.
Thus, the following are undisputed facts as McDaniel has not cited any evidence to refute them: Woods, Whetro and McCreary learned that McDaniel had obtained time off at Christmas 1999 by claiming that she had non-refundable tickets for a cruise when she did not; John Anderson, the Vice President of Physician Services at Riverview, reported to EagleCare management that he was upset with McDaniel's attitude and demands; McDaniel possibly took physicians' orders over the phone despite regulations that only a nurse is authorized to do so; McDaniel was rude to and inconsiderately treated a patient Mr. Jeffrey, and responded impatiently to his inquiry; MDS Consultant Maureen Baker confirmed there were MDS problems at the TCU; McCreary requested that McDaniel lead the care plan process, in Whetro's absence, and McDaniel "threw a fit" and refused to do so; McDaniel obtained a master key allowing her access to all offices on the TCU from maintenance without properly requesting permission or authorization for the key; after January 14, McDaniel refused to communicate or cooperate with McCreary, and this refusal created significant tension and strain on the unit; patients complained McDaniel was not available on the unit when they needed her to update them about discharge plans; based on her own observations and feedback from other supervisors, employees, and patients about the times McDaniel arrived and left on specified dates, McCreary identified inconsistencies between McDaniel's time card and the times she actually arrived or departed; and, on two specific occasions, Whetro and Woods identified and reported to Raisovich that McDaniel had certified on her time card that she arrived earlier than she had.
B. Other Factual Disputes
SMF 73 states that almost from the start, McCreary had problems with McDaniel's attendance and availability on the unit and other trust issues. McDaniel disputes this SMF, arguing that the statements from Raisovich and Woods in this regard are inadmissible hearsay. She simply disputes McCreary's testimony and offers no evidence to refute that testimony.
A simple dispute without more is insufficient to raise a genuine issue regarding whether McCreary had such problems with McDaniel. The objection to SMF 73 is OVERRULED.
McDaniel's AMF 159 states that Jones had done some of the admissions for the advance directives that were said to be missing in Karnes' audit. EagleCare suggests that Jones's cited testimony refers to an audit completed before McDaniel began working at TCU, but cites no evidence that substantiates that assertion. So, the court accepts, as true, that Jones had done some of the admissions. There is, however, no evidence that Jones did all of them, and that McDaniel was responsible for some of the missing information remains undisputed.
AMF 181 states that when Beth Malcolm started as the social service director, McCreary did not inform her of the seventy-two hour requirement for placing patient histories on the charts. The AMF cites to page 163 of McCreary's deposition. That testimony, however, contradicts the AMF: McCreary did inform Malcolm of the 72-hour requirement, though she did not provide it in writing. Thus, it is undisputed that McCreary did inform Malcolm of the same 72-hour requirement placed on McDaniel.
AMF 201 states, in conclusory fashion, that "McCreary's whole demeanor toward McDaniel was negativity." As stated, this is wholly conclusory and, therefore, fails to raise a genuine issue of fact. Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) ("It is well settled that conclusory allegations and self-serving affidavits, without support in the record, do not create a triable issue of fact."). Even accepting that McCreary's demeanor toward McDaniel was one of negativity, that alone is insufficient to carry the day for McDaniel. Instead, McDaniel must produce evidence that the negativity was because of her race or protected activity.
McDaniel asserts as a fact in AMF 226 that "[t]he way [she] was treated and singled out led her to believe that race was the reason McCreary did not like her."
McDaniel's subjective belief as to McCreary's reason for not liking her is immaterial, and her belief fails to prove that McCreary's treatment of her was motivated by race. See, e.g., Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 615-16 (7th Cir. 2001) ("[Plaintiff's] subjective belief that the [defendant's] actions were retaliatory and that the [defendant's] claimed reasons for terminating her are pretextual in nature does not create a genuine issue of material fact."); Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 574 (7th Cir. 1998) ("subjective beliefs of the plaintiff . . . are insufficient to create a genuine issue of material fact.").
AMF 234 states that "[t]he [January 27] conversation with Raisovich seemed to be more of an investigation of McDaniel and her character rather than the issues that were going on." McDaniel's perception of the conversation, unsupported by substantiating facts, fails to raise a genuine issue as to whether Raisovich's investigation was a sham. See, e.g., Horwitz, 260 F.3d at 615-16. AMF 242 states that "[t]he February 8 meeting was more of a meeting on McDaniel's character instead of a meeting on what McDaniel's concerns were." This statement is entirely conclusory and, therefore, fails to raise a genuine issue. E.g., Hall, 276 F.3d at 354.
The same is true with respect to AMF 244 and 245 which make analogous assertions. Similarly, the statement in AMF 247 that "McCreary clearly made it known that she did not want to work with a black person" is wholly conclusory and lacking in specific factual support.
According to AMF 257, "[t]he substance of the February 8 meeting shows how McDaniel and her work were subjected to greater scrutiny. During the meeting, Raisovich indicated she had investigated McDaniel's work and not her complaints of discrimination." The evidence cited in support, McDaniel's deposition testimony at page 267, does not substantiate the claim as to what Raisovich indicated. The AMF is conclusory and, moreover, contradicted by the transcription of the audio tape of the February 8 meeting which was produced by McDaniel in response to EagleCare's discovery requests. (See, e.g., Evid. Support Def.'s Mot. Summ. J., Ex. 7, May 28, 2001 Affidavit of Jan Michelsen, ¶ 3, Ex. "Taped Termination Meeting" at 2 ("I want you to know that I thoroughly investigated the situation. . . . [N]ot only was I looking for substance to your charges but I also looked at the specific circumstances and situations that you related to me. . . . I have to tell you that I found no merit or no basis to the racial discrimination charge.")). McDaniel's AMF 267 is brash and fails to create any issue of fact.
AMF 263 which states that "[e]veryone at TCU was treated better than McDaniel" is wholly conclusory and thus fails to create a triable issue of fact. E.g., Hall, 276 F.3d at 354.
In her AMF 264 McDaniel asserts that Raisovich never talked to her about a second time-sheet incident. The cited deposition testimony (McDaniel's own testimony) supports that assertion; however, the transcription from the February 8 meeting convincingly establishes that Raisovich attempted to discuss the time-sheet incidents with McDaniel, but was precluded from doing so because of McDaniel's own inappropriate conduct in concluding the meeting. (Evid. Support Def.'s Mot. Summ. J., Ex. 7, May 28, 2001 Michelsen Aff. ¶ 3, Ex. "Taped Termination Meeting" at 13-15.).
Thus, McDaniel's testimony appears to be at odds with the contemporaneous recording of the events about which she testifies. Such testimony in the face of an unrefuted transcription of the actual event does not create a triable issue of fact. Cf. Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir. 2000) (stating the general rule that a party cannot "create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony.") (quotation omitted). Though the statements made during the termination meeting were not sworn, McDaniel does not dispute either the authenticity or accuracy of the transcription of her tape recording of the meeting. At best, McDaniel's contradictory testimony is conclusory and a mere scintilla of evidence; thus, her AMF 264 does not create a triable issue of fact. See, e.g., Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) (conclusory allegations lacking factual support in record fail to create triable issue); Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001) (stating that a mere scintilla of evidence is insufficient to preclude summary judgment). Besides, whether Raisovich talked to McDaniel about the time sheet incidents is not very important.
C. Title VII Race Discrimination Claim
Though the parties take different approaches, they agree that the issue at this summary judgment stage is whether there is sufficient evidence to raise a genuine issue as to whether McDaniel's termination was motivated by a racial animus. The court assumes for purposes of EagleCare's summary judgment motion that McDaniel has come forward with evidence sufficient to establish a prima facie case of race discrimination and proceeds to decide the issue stated above.
Employing the McDonnell Douglas burden-shifting framework, McDonnell Douglas v. Green, 411 U.S. 792 (1973), provides a useful tool for making that decision.
Since the court assumes that McDaniel can demonstrate a prima facie case of race discrimination, EagleCare bears the burden of producing a legitimate, nondiscriminatory reason for her termination. Hall v. Bodine Elec. Co., 276 F.3d 345, 357-58 (7th Cir. 2002).
EagleCare has offered several legitimate, nondiscriminatory reasons for McDaniel's termination: lack of trust, including potential falsification of records and time sheets; violation of EagleCare and TCU policies; and her failure to satisfactorily perform job responsibilities. As McDaniel concedes, these are legitimate, nondiscriminatory reasons. Thus, the burden shifts back to McDaniel to show that these reasons are pretexts for race discrimination. Id. at 358.
Pretext does not mean a mistake, but rather, "`a phony reason for some action.'" Logan v. Kautex Textron N. Am., 259 F.3d 635, 640 (7th Cir. 2001) (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995)). To show pretext, McDaniel must show that EagleCare's stated reasons for its decision were "unworthy of credence." Logan, 259 F.3d at 640 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)); see also O'Connor v. DePaul Univ., 123 F.3d 665, 671 (7th Cir. 1997) ("On the issue of pretext, our only concern is the honesty of the employer's explanation, and O'Connor has offered no evidence calling that into question here."). To show pretext indirectly, McDaniel "must show either that [EagleCare] lied about why they took the adverse action that they did or that [EagleCare's] stated reasons for [her termination] have no basis in fact." Alexander v. Wis. Dep't Health Family Servs., 263 F.3d 673, 683 (7th Cir. 2001); see also Logan, 259 F.3d at 640. The court's only concern is whether McDaniel has produced evidence from which a rational trier of fact could infer that EagleCare's stated reasons for its decision were lies. Alexander, 263 F.3d at 683; see also Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000) (stating that the court's "only concern is whether the legitimate reason provided by the employer is in fact the true one."). Furthermore, McDaniel must create a triable issue of fact regarding each of the reasons offered by EagleCare. See, e.g., Rizzo v. Sheahan, 266 F.3d 705, 715 (7th Cir. 2001) (plaintiff must demonstrate that employer's stated reasons are pretextual); Russell, 51 F.3d at 69 ("The fact that some of [the employer's proffered] reasons were successfully called into question by [the employee's] deposition or affidavit does not defeat summary judgment if at least one reason for [the adverse employment action] stands unquestioned.").
McDaniel argues that a reasonable trier of fact could find that EagleCare's explanation for her discharge is dishonest. She offers several reasons for this, but upon examination, none enables her to carry her burden of establishing a triable issue of pretext.
McDaniel first contends that McCreary held an animus for African-Americans which was exhibited when, in response to McDaniel's complaint of harassment and discrimination during the January 14th meeting, McCreary said: "You people always say that." McCreary denies making this remark, and Woods, the only other person present at the meeting when it allegedly was made, also denies that McCreary said such a thing. The court, however, accepts, as it must on summary judgment, that McCreary made this inappropriate remark. And, drawing all reasonable inferences in favor of McDaniel, the court assumes that the words "You people" referred to African-Americans or African-Americans who complain about racial discrimination and harassment, or both.
McDaniel argues that where there is evidence that the individual making the recommendation to terminate is motivated by a discriminatory (or retaliatory) animus summary judgment is improper. She cites Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1165-66 (7th Cir. 1994), and Gusman v. Unisys Corp., 986 F.2d 1146, 1147 (7th Cir. 1993), for support. It is undisputed that McCreary was McDaniel's supervisor and made the recommendation to terminate McDaniel's employment, but neither case holds that proof that a decision maker made a discriminatory remark is enough to defeat summary judgment. Rather, there must be evidence from which one can reasonably infer that the remark had something to do with the adverse action about which the plaintiff complains. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (White, concurring) ("statements by decisionmakers unrelated to the decisional process itself" are insufficient to show unlawful motive); Robinson, 23 F.3d at 1165 ("we cannot definitively state based on the limited record before us that Henrichsmeyer's alleged statements were merely stray remarks that had nothing to do with his termination.").
When a decision maker, or someone who provides input into the decision in question, makes a discriminatory remark (1) around the time of, and (2) in reference to, the adverse action complained of, this may raise a reasonable inference that the decision had an impermissible discriminatory motivation. Hunt v. City of Markham, Ill., 219 F.3d 649, 652-53 (7th Cir. 2000) (citing cases). If the plaintiff cannot show that the discriminatory remark was related to the decision in question, however, the remark is insufficient by itself to give rise to an inference of discrimination "even when uttered by the ultimate decisionmaker." Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1403 (7th Cir. 1996); see also Huff v. UARCO, Inc., 122 F.3d 374, 385 (7th Cir. 1997) ("even in an indirect proof case, remarks unrelated to the employment decision in question may not overcome summary judgment if they stand alone as evidence of the employer's discriminatory intent."). McDaniel has offered no evidence to establish the necessary relation between McCreary's alleged inappropriate remark and her termination.
McDaniel likens the facts of her case to those in Futrell v. J.I. Case, 38 F.3d 342 (7th Cir. 1994), but the two cases are very different. The Futrell court reversed the district court's grant of judgment as a matter of law to the employer on the plaintiff's claim of discriminatory discharge based on age. The district court held that the plaintiff could not prove pretext. Id. at 345. The Seventh Circuit decided that the plaintiff offered sufficient evidence from which the jury could have reasonably found that the employer's stated reasons for his discharge were pretexts for age discrimination. Id. at 346. The court based this conclusion on the sum of several factors offered by the plaintiff: discriminatory remarks by the plant manager, who was plaintiff's supervisor, and other officials regarding preferences of youth over age; plaintiff's replacement was younger than he; the plant manager was younger than plaintiff; the plant manager failed to follow the employer's formal, disciplinary procedures; the plant manager back filed notes about the plaintiff after the suit was filed; the personnel manager made a notation during a conversation with the plant manager that providing plaintiff with a certain severance package would reduce the chances of an age discrimination suit, and the plaintiff had years of favorable performance reviews. Futrell, 38 F.3d at 347-50.
Accepting that McCreary made an inappropriate remark referencing McDaniel's race, or audacity to complain, or both; McDaniel was replaced by a Caucasian; McCreary and Raisovich are Caucasian; and assuming that Raisovich mentioned the possibility of "additional weeks" of severance if McDaniel would sign a release, these facts, even when taken together and viewed in the light most favorable to McDaniel, are simply insufficient to create a triable issue of pretext, especially given the overwhelming evidence of the legitimate, nondiscriminatory reasons for McDaniel's discharge.
McDaniel's second basis for arguing pretext is that EagleCare has offered inconsistent justifications for its decision to terminate her employment. She quotes the following statement from EagleCare's summary judgment brief: "Having heard no satisfactory explanation for the charting contradictions, apparent backdating of charts, or suspected misrepresentation of hours worked; face[d] with McDaniel's clearly insubordinate behavior; and aware of the litany of complaints that had been logged regarding McDaniel's performance and attitude, Raisovich informed McDaniel that her employment was terminated." (Opp'n Br. at 24 (citing Def. Brief at II(E) [at 8].))
McDaniel urges that this assertion is not consistent with the deposition testimony of McCreary who testified that McDaniel was terminated for falsification of time records and lack of trust, and the testimony of Raisovich that she was terminated for falsification of time records.
"Although shifting reasons for an employment decision can raise a fact question on pretext, [McDaniel] must show evidence of a significant discrepancy in the reasons offered by [EagleCare]." Juniel v. Park Forest-Chicago Heights Sch. Dist. 163, 176 F. Supp.2d 842, 853 (N.D.Ill. 2001) (citing O'Connor v. DePaul Univ., 123 F.3d 665, 670 (7th Cir. 1997) (finding different reasons for discharge not inconsistent and did not raise a fact question on pretext); Timm v. Mead Corp., 32 F.3d 273, 275-76 (7th Cir. 1994) (finding rating of "competent" not inconsistent with the stated reason that plaintiff was discharged for performance problems)); see also Johnson v. Nordstrom, Inc., 260 F.3d 727, 733-34 (7th Cir. 2001) (rejecting argument that employer's alleged vacillation in its reasons for its decision creates a triable issue of pretext where defendant merely supplemented its explanations in the context of the EEOC charges and litigation, did not retract any of the reasons previously given, and none of its reasons were inconsistent or conflicting); Logan v. Kautex Textron N. Am., 259 F.3d 635, 640-41 (7th Cir. 2001) (holding former employee's argument that employer gave multiple reasons for her discharge (bad attitude, sabotaging tasks, performance, and absenteeism) failed to show those reasons were pretextual because the reasons were not inconsistent).
The record does not bear out the claim that EagleCare has offered inconsistent reasons for McDaniel's termination. Though McCreary and Raisovich and EagleCare in its summary judgment brief may use different words at different times to explain the reasons for McDaniel's termination, EagleCare at all times has remained consistent in its justification for its discharge decision. McDaniel has shown no "significant discrepancy," inconsistency, or contradiction in EagleCare's explanation. Instead, the explanations offered by EagleCare, McCreary and Raisovich are akin to those in Little v. Cox's Supermarkets, 71 F.3d 637, 643 (7th Cir. 1995) (concluding that differences among labels of "theft," "concealment," and "assembling purchases" given to former employee's conduct did not suggest pretext nor did the differences rise to a level of inconsistency as to permit a reasonable inference of discriminatory motive), and O'Connor, 123 F.3d at 671 (use of the terms "harassment" and "insubordination" to explain the reasons for plaintiff's discharge did not permit inference of pretext), and address the same types of conduct, albeit in different ways. In addition, it is noted that McCreary testified that the "lack of trust" relates to the potential falsification of time sheets, the complaints about McDaniel's handling of patient planning, and charting "not being there." (McCreary Dep. at 87.) Raisovich testified that the instances of insubordination included "whatever Tabby [McCreary] had in that memo about how they are supposed to handle their time." (Raisovich Dep. at 146.)
McDaniel next maintains that EagleCare has offered inconsistencies about the timing of the termination decision. She asserts that EagleCare claims in its summary judgment brief that it made the decision to terminate her at the February 8 meeting and that the decision was "largely based" on her insubordinate conduct during that meeting. (Opp'n Br. at 25 (citing Def. Br. at III(B)(3), n. 5.)) This, she argues, is inconsistent with the testimony of the decision makers that they had made the decision before the meeting. As a result, according to McDaniel, EagleCare's claim that her conduct during that meeting impacted the termination decision shows pretext. First of all, though EagleCare's brief seems to suggest that McDaniel's conduct was a factor in her termination, EagleCare does not claim that the termination decision was "largely based" on McDaniel's conduct during the February 8 meeting. Nor does EagleCare actually claim that the termination decision was made at the February 8 meeting. This is fatal to McDaniel's assertion of pretext based on alleged inconsistencies in the claimed timing of the termination decision. Rather, EagleCare's position is and has been that the termination decision was made before the February 8 meeting, and McDaniel's insubordinate conduct during that meeting provided yet another legitimate reason for that decision. That is, her conduct at the meeting corroborated the decision.
McCreary was asked at her deposition: "[Y]ou said that it had not been definitively decided that [McDaniel] would be terminated at [the February 8] meeting," (McCreary Dep. at 199), to which she answered, "[t]hat's true." (Id.). She was asked the follow-up question: "Was it your understanding that if, for example, in that meeting there had been some good reason given or some good explanation given for some of the charting or time sheet problems or if there had been a willingness to conciliate and change and move forward working as a team, there was a chance that Ms. McDaniel would not have been terminated?" (Id.) She responded, "Yes." (Id.) This testimony establishes that the decision to terminate McDaniel was made before the February 8 termination meeting, but the decision makers were open to reconsideration of that decision if McDaniel gave them some good reason to do so. It does not show pretext.
Moreover, even if the alleged inconsistencies in the timing of the termination decision were to provide evidence of pretext, as stated, McDaniel bears the burden of coming forward with evidence sufficient to create a triable issue of pretext as to each of the reasons offered by EagleCare. See, e.g., Rizzo v. Sheahan, 266 F.3d 705, 715 (7th Cir. 2001); Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 1995). The alleged inconsistencies in the timing of the termination decision pertain only to the explanation that McDaniel's conduct during the February 8 meeting justified her termination.
McDaniel asserts that pretext may be inferred from EagleCare's actions following her termination in changing the job description by eliminating the requirement of a social worker license, replacing her with a Caucasian individual, Beth Malcolm, who was not only less qualified than she but also did not meet the job description's requirements, and in McCreary's failure to inform her replacement of the seventy-two hour requirement for completing patient histories. As for the first, EagleCare's explanation that it terminated McDaniel for lack of trust, including falsification of records and time sheets, stands on its own irrespective of compliance with state regulations of licensed social workers regarding backdating of charts. As noted, McCreary testified that the lack of trust included the potential falsification of time sheets, the complaints about McDaniel's handling of patient planning, as well as charting issues. In certain contexts, evidence that McDaniel was replaced by a less qualified Caucasian may help raise the inference of discrimination, but McDaniel has not shown that it would be a reasonable inference in this case. She has offered no evidence to establish the qualifications of any other applicant for her former position. In short, she offers no evidence to suggest reasonably that the race of her replacement is anything other than happenstance. Nor has she shown that her replacement's lesser qualifications suggest that the reasons for her termination were pretexts for discrimination (or retaliation). In addition, the uncontradicted evidence establishes that, contrary to McDaniel's claim, McCreary did inform Malcolm of the seventy-two hour requirement.
McDaniel also claims that the investigation conducted by EagleCare was a sham. "The lack of any previous hostility between [Raisovich and McDaniel] is a relevant consideration" in determining whether the investigation was a sham. See Hall v. Bodine Elec. Co., 276 F.3d 345, 358 (7th Cir. 2002). There is no evidence of any hostility between them, and McDaniel does not claim that Raisovich harbored any racial (or retaliatory) animus against her. McCreary was the only person at TCU with whom McDaniel allegedly had any problems because of her race. McDaniel claims that Raisovich learned things from Annette Jones in her investigation but chose to ignore them, namely (1) Karnes had conducted another audit where some things were missing and a few days later the items were there (Raisovich Dep. at 189); (2) in Jones's eyes, McDaniel was being "hit harder than anybody regarding her work" (id. at 191); (3) there was tension at the department head meetings and McCreary and Whetro cut off McDaniel in conversations (id. at 192); and (4) McDaniel was being singled out, because no one else received copies of the state regulations, (id. at 192). Tellingly, however, McDaniel does not claim that Jones ever told Raisovich that she thought that the singling out, tension, or targeting of McDaniel was because of her race, and there is no evidence that Jones held such an opinion. Nor does McDaniel offer any evidence that Jones or anyone else contacted by Raisovich as part of her investigation heard any racially derogatory remarks. McDaniel has pointed to no evidence in the record to support her claim that Raisovich's investigation into her complaint of discrimination and harassment was a sham.
Jones did testify that she believed she informed Raisovich she could understand how McDaniel felt she was being treated differently because of her race as there was a conflict between McCreary, Whetro and McDaniel. (Jones Dep. at 21-22.) An interpersonal conflict alone, however, does not raise a reasonable inference of race discrimination or retaliation. Sometimes coworkers just don't get along.
McDaniel argues that the "non-investigation" of the falsification of the time-sheet dispute is "suspicious" as EagleCare never sought her input on the allegations of her coworkers. This argument calls into question the correctness of EagleCare's business decisions. A disagreement over EagleCare's business decision is not evidence of pretext. See, e.g., Johnson v. Univ. of Wis. — Eau Claire, 70 F.3d 469, 481 (7th Cir. 1995). Furthermore, the undisputed evidence establishes that Raisovich and McCreary attempted to discuss the time sheet issue with McDaniel during the February 8 meeting, but McDaniel's inappropriate conduct when the matter was raised — forcing them out of her office — precluded them from doing so.
Finally, McDaniel claims and offers evidence that before McCreary's arrival at TCU, she had positive performance reviews and there were no complaints about her performance. Such evidence is irrelevant because McDaniel's performance at the time of her termination is what matters. See Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1113 (7th Cir. 1998) (stating that "earlier evaluations cannot, by themselves, demonstrate the adequacy of performance at the crucial time when the employment action is taken. Nor can such evaluations, standing alone, create a genuine issue of triable fact when . . . there have been substantial alterations in the employee's . . . supervision in the intervening period.") (citation omitted).
"There may be cases in which the multiple grounds offered by the defendant for the adverse action of which the plaintiff complains are so intertwined, or the pretextual character of one of them so fishy and suspicious, that the plaintiff could withstand summary judgment." Russell v. Acme-Evans, Co., 51 F.3d 64, 69-70 (7th Cir. 1995).
This is not such a case. For example, the complaints about McDaniel's patient handling have nothing to do with falsification of time records. EagleCare has offered legitimate, nondiscriminatory reasons for its decision to terminate McDaniel's employment, and McDaniel has not come forward with evidence sufficient to create a triable issue of pretext as to each. Therefore, EagleCare should be granted summary judgment on McDaniel's Title VII race discrimination claim.
D. Title VII Retaliation Claim
As the Seventh Circuit recently clarified, plaintiffs can withstand summary judgment on retaliation claims in one of two ways. Stone v. City of Indianapolis Pub. Util. Div., No. 01-3210, 2002 WL 234239 (7th Cir. Feb. 19, 2002). The first way is referred to as "the more straightforward" of the two and is unrelated to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. at *2. Under this way, a plaintiff must "present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that [s]he engaged in protected activity . . . and as a result suffered the adverse employment action of which [s]he complains." Id. If the plaintiff's evidence is uncontradicted, then she is entitled to summary judgment. But if her evidence is contradicted, then the case goes to trial, unless the defendant produces unrebutted evidence that it "would have taken the adverse employment action against the plaintiff even if [it] had had no retaliatory motive[.]" Id. If the defendant offers such evidence, then it is entitled to summary judgment because it "has shown that the plaintiff wasn't harmed by retaliation." Id.
Under the second way, the adaptation of the McDonnell Douglas framework for summary judgment in employment discrimination cases, a plaintiff must "show that after [engaging in statutorily protected activity] only [s]he, and not any similarly situated employee who did not [engage in such activity], was subjected to an adverse employment action even though [s]he was performing [her] job in a satisfactory manner." Stone, 2002 WL 234239, at *3. If the defendant offers no evidence in response, then the plaintiff is entitled to summary judgment. Id. If, however, the defendant "presents unrebutted evidence of a noninvidious reason for the adverse action, [it] is entitled to summary judgment. Otherwise there must be a trial." Id.
McDaniel cannot avail herself of the first way of preventing summary judgment. The only "direct evidence" she offers of retaliation is that her termination occurred a few weeks after she verbally informed McCreary and Woods on January 14 that she felt discriminated against because of her race and formally filed an internal complaint about race discrimination and harassment. "[M]ere temporal proximity between the [protected activity] and the action alleged to have been taken in retaliation for that [activity] will rarely be sufficient in and of itself to create a triable issue." Stone, 2002 WL 234239, at *3; see also Bilow v. Much Shelist Freed Denenberg Ament Rubenstein, P.C., 277 F.3d 882, 895 (7th Cir. 2001) ("[plaintiff] needs more than a coincidence of timing to create a reasonable inference of retaliation"). As the Seventh Circuit explained: "The mere fact that one event preceded another does nothing to prove that the first event caused the second. Rather, other circumstances must also be present which reasonably suggest that the two events are somehow related to one another." Bilow, 277 F.3d at 895 (quoting Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000)). McDaniel offers no evidence of other circumstances which reasonably suggest that her verbal complaints or letter were related to her termination.
As for the second way, assuming that McDaniel can demonstrate that after engaging in protected activity she, and not any similarly situated employee who did not engage in such activity, was terminated even though she was performing her job satisfactorily, EagleCare has offered unrebutted evidence of a noninvidious reason for discharging her, as discussed supra in section III.C. Therefore, EagleCare should be granted summary judgment on McDaniel's Title VII retaliation claim, too. See Stone, 2002 WL 234239, at *3.
D. § 1981 Claims
As for the § 1981 claims, even assuming that McDaniel had a contractual relationship with Eaglecare, the claims fail to survive summary judgment for the very same reasons that the other claims fail. See, e.g., Alexander v. Wis. Dep't Health Human Servs., 263 F.3d 673, 681-82 (7th Cir. 2001) (noting that Title VII and § 1981 claims are analyzed in the same manner); Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998) (same standards applicable to Title VII claims apply to § 1981 claims).
IV. McDaniel's Surreply Brief and EagleCare's Objection Thereto
McDaniel filed a surreply brief purporting to respond to EagleCare's "additional evidence" on reply. The court need not resolve whether EagleCare actually presented additional evidence on reply or whether McDaniel's surreply was proper under Local Rule 56.1(d)(2). Instead, the court addresses the arguments raised by the surreply and objection thereto.
McDaniel first uses her surreply brief to challenge the credibility of the decision makers, Raisovich and McCreary, in an effort to raise an inference of pretext. The statement in Raisovich's affidavit that she "participated in the decision to terminate McDaniel's employment on February 8, 2000," (Raisovich Aff. ¶ 3), cannot be reasonably understood as meaning that the decision was made on February 8, 2000.
Rather, the logical and grammatically correct interpretation of this statement is, and the other undisputed evidence reveals, that prior to February 8, Raisovich and McCreary decided that McDaniel's employment should be terminated and that this would occur at a meeting on February 8. It is undisputed that both Raisovich and McCreary participated in the termination decision. There is nothing inherently inconsistent about both of them claiming to have decided that McDaniel should be terminated. Raisovich's affidavit simply does not reveal the inconsistencies that McDaniel suggests support an inference of pretext.
In addition, McCreary's affidavit and attached notes do not contradict her prior sworn deposition testimony. Her notes state that on January 21, 2000, she was notified by Raisovich that McDaniel had written a letter outlining allegations of discrimination and harassment. At her deposition she testified she was never told the nature of McDaniel's complaint. Counsel specifically asked whether she knew that McDaniel had complained of "racial harassment and racial discrimination," (McCreary Dep. at 103), and whether she knew McDaniel was alleging "a hostile environment," (id. at 104, 105).
McCreary answered "no" to both questions. There is nothing inconsistent between that testimony and her notes that McDaniel had complained about "discrimination and harassment." Though McDaniel argues otherwise, she is straining to create inconsistencies in an effort to attack the McCreary's credibility. Arguing that McCreary's credibility is central to the pretext issue is not enough to raise a triable issue of fact. See Millbrook v. IBP, Inc., No. 01-1189, 2002 WL 239090, at *11 (7th Cir. Feb. 20, 2002) (stating"[a] party cannot meet its burden of proof `by relying on the hope that the jury will not trust the credibility of the witnesses. . . .") (quotation omitted).
Also, McDaniel's surreply argues that the affidavit, dated October 12, 2001, of Jan Michelsen, counsel for EagleCare, along with the attached exhibit should be stricken since they were not submitted in reply to McDaniel's Response to Statement of Material Facts or Statement of Additional Material Fact. The court has not considered either the Michelsen affidavit of October 2001 or attached exhibit in making its rulings on the summary judgment motion. The matter of sanctions is not before the court at this time. Rather than striking the affidavit and exhibit, the court will continue to disregard them. So, EagleCare's objection to McDaniel's surreply brief is overruled.
V. Motion To Strike Certain Citations
In Defendant's Summary Judgment Brief McDaniel moves the court to strike various case citations in EagleCare's brief in support of its motion for summary judgment as inappropriate. She argues that the citations are either unpublished opinions of the Seventh Circuit and, thus in violation of Seventh Circuit Court of Appeals Rule 53(iv); or in violation of this court's Local Rule 7.1(b), requiring parties to provide opposing parties and the court copies of certain decisions. In ruling on the summary judgment motion, the court has not relied on any of the cases the citation to which McDaniel objects; thus, the court finds that her motion should be denied as moot.
VI. Conclusion
None of the parties' side skirmishes have led the court astray from the issue at hand: whether the record contains sufficient evidence to create a genuine issue as to whether McDaniel's termination was motivated by a racial or retaliatory animus, or both.
The record does not. Therefore, EagleCare's motion for summary judgment will be GRANTED on all claims asserted by McDaniel. Also, McDaniel's motion to strike certain citations in EagleCare's summary judgment brief is DENIED as moot, McDaniel's motion to strike portions of EagleCare's summary judgment brief is DENIED, and EagleCare's objection to McDaniel's surreply brief is OVERRULED.