Lauterbach v. Illinois State Police, The

Filing 26

OPINION (See Written Opinion): Lauterbach's Motion to Strike the Affidavit of Katherine Parmenter (d/e 18 ) is DENIED. Lauterbach may fully depose Katherine Parmenter by February 15, 2015. The parties are DIRECTED to file supplemental pleadings, if any, on or before March 2, 2015. The parties may file responses to any supplemental pleading on or before March 16, 2015. Entered by Judge Sue E. Myerscough on 1/12/2015. (VM, ilcd)

E-FILED

Monday, 12 January, 2015 04:38:40 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KARI J. LAUTERBACH,
Plaintiff,
v.
THE ILLINOIS STATE POLICE,
Defendant.

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12-cv-03228

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court in this gender–employment discrimination
suit is Plaintiff Kari J. Lauterbach’s Motion to Strike the Affidavit of
Katherine Parmenter (d/e 18). Defendant the Illinois State Police
(“ISP”) filed the Parmenter Affidavit as Exhibit 5 to its Memorandum
in Support of its Motion for Summary Judgment (d/e 15).
Lauterbach moves to strike the Parmenter Affidavit on the grounds
that the Affidavit is inadmissible as hearsay because Defendant did
not attach the documentary exhibits upon which Parmenter relied
in preparing the Affidavit. ISP contends that the Parmenter
Affidavit is a proper summary of voluminous documentary evidence
under Federal Rule of Evidence 1006 and complies with Federal

Rule of Civil Procedure 56(c)(4), governing affidavits used to support
a motion for summary judgment. Because the Parmenter Affidavit
complies with Federal Rule of Evidence 1006 and Federal Rule of
Civil Procedure 56(c)(4), and because opinions expressed in the
Parmenter Affidavit as to ultimate facts are permissible under
Federal Rule of Evidence 704, Plaintiff’s Motion to Strike is
DENIED.
I.

BACKGROUND

Lauterbach has brought a two-count complaint against ISP
alleging she was not paid equally for equal work in violation of the
Equal Pay Act, 29 U.S.C. § 206(d)(1), and gender discrimination
under Title VII of the Civil Rights Act of 1964. After the close of
discovery, ISP filed its Motion for Summary Judgment on October 1,
2014, and attached an affidavit from Katherine Parmenter, Chief of
the Illinois State Police Office of Human Resources. On November
11, 2014, Lauterbach filed the present Motion to Strike the
Parmenter Affidavit.
II.

ANALYSIS

Lauterbach moves to strike the Parmenter Affidavit on the
grounds that it is “replete with hearsay.” Specifically, Lauterbach
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contends that the Parmenter Affidavit contains summary
conclusions, drawn from documentary evidence regarding the pay
of Lauterbach and other ISP employees, as to the nondiscriminatory fashion in which ISP pay policies were applied to
Lauterbach.
Though Lauterbach contends the Parmenter Affidavit contains
hearsay, Lauterbach does not contend that the documentary
evidence underlying the Parmenter Affidavit is hearsay, as well she
shouldn’t. The parties agree that this documentary evidence is
admissible under the business records exception to the hearsay
exclusionary rule. See Fed. R. Evid. 803(6). Lauterbach does argue
that the Parmenter Affidavit lacks foundation for the admissibility of
the documentary evidence because Parmenter fails to describe
adequately the promotions history for Lauterbach and other ISP
employees or to identify specifically which documents Parmenter
reviewed or when she reviewed them. But foundation for the
admissibility of the documentary evidence requires only that the
records (1) were made at or near the time of the act or event, (2) by
someone with knowledge of the act or event, (3) in the course of a
regularly conducted activity of an organization, (4) as a regular
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practice of that activity. See Fed. R. Evid. 803(6)(A)–(C).
Lauterbach does not dispute that ISP’s documentary evidence
meets these criteria, nor does Lauterbach contend that Parmenter
is not a qualified witness, nor that the method or circumstances of
the documents’ preparation indicates a lack of trustworthiness. See
Fed. R. Evid. 803(6)(D)–(E). Because Parmenter properly asserts,
and Lauterbach does not refute, the necessary foundation to admit
the documentary evidence underpinning the Parmenter Affidavit,
that documentary evidence is admissible.
Parmenter’s summary of that documentary evidence, then, is
admissible if it complies with the evidentiary rule governing
summaries to prove content. Federal Rule of Evidence 1006
provides that a proponent of evidence “may use a summary, chart,
or calculation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently examined
in court,” provided that the proponent make originals or duplicates
available for examination or copying at a reasonable time and place.
The voluminous documentary evidence must itself be admissible, as
has been shown in this case. See, e.g., Judson Atkinson Candies,
Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (2008) (“The
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admission of a summary under Fed. R. Evid. 1006 requires a proper
foundation as to the admissibility of the material that is
summarized and . . . [a showing] that the summary is
accurate . . . .” (alteration in original) (citations omitted)). If the
summary offered complies with Rule 1006, the summary itself is
substantive evidence in the case, and the underlying documentary
evidence itself need not be actually admitted into evidence. See,
e.g., Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d
182, 189 (4th Cir. 1994) (“[Rule 1006] obviates the need to
introduce the underlying evidence . . . .”); Pierce v. Ramsey Winch
Co., 753 F.2d 416, 430 (5th Cir. 1985) (“[Evidence] admitted
pursuant to Rule 1006 is itself evidence and should go to the
juryroom during deliberations along with the other exhibits.”).
In the present case, ISP has asserted, and Lauterbach has not
disputed, that the documentary evidence underpinning the
Parmenter Affidavit has been made reasonably available to
Lauterbach for examination and copying. Indeed, ISP has provided
copies of the documentary evidence directly to Lauterbach and filed

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a CD-ROM with the Court containing the documentary evidence.1
Accordingly, the Lauterbach Affidavit conforms to Rule 1006 and
will not be struck.
Lauterbach further disputes the admissibility of the Parmenter
Affidavit because it contains Parmenter’s opinions in a manner that
Lauterbach claims will impermissibly shift the burden of proving
non-discriminatory conduct in the Equal Pay Act claim. Unlike a
traditional Title VII claim, under the Equal Pay Act, an employee
need only make a prima facie case of gender discrimination in pay;
thereafter, the defendant employer must actually prove that its nondiscriminatory justification for the pay disparity. See, e.g., King v.
Acosta Sales & Mktg., 678 F.3d 470, 474 (7th Cir. 2012)
(“[Plaintiff's] claim under the Equal Pay Act must be returned to the
district court for a trial at which [the employer] will need to prove,
and not just assert, that education and experience account for
these differences [in pay].”). According to Lauterbach, if the
Parmenter Affidavit is allowed, Parmenter’s conclusion that ISP had

With leave of the Court, ISP has filed the CD-ROM under seal
because it contains sensitive personnel information that would
otherwise need to be redacted under Local Rule 49.12. (See Text
Order, Dec. 2, 2014.)
1

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non-discriminatory reasons to establish Lauterbach’s pay would
shift the burden to Lauterbach to establish that ISP’s stated
justification is merely pretextual, contrary to the requirements of
the Equal Pay Act.
Lauterbach’s concern about impermissible burden-shifting is
premature, however. Federal Rule of Evidence 704 abolished the
“ultimate issue rule,” permitting the opinion of an affiant on the
ultimate issues to be decided in the case. Fed. R. Evid. 704(a) (“An
opinion is not objectionable just because it embraces an ultimate
issue.”); see also, e.g., Case & Co., Inc. v. Bd. of Trade of Chi., 523
F.2d 355, 361 (7th Cir. 1975) (denying motion to strike affidavit of
Act Administrator of Commodity Exchange Authority, premised on
Act Administrator’s opinions on ultimate issues in affidavit attached
to motion for summary judgment). The defect of including an
opinion on an ultimate issue goes to the weight of the Parmenter
Affidavit’s persuasive force, not its admissibility. See id. And in
any event, at the state of a motion to dismiss, all facts must be seen
and all conclusions drawn in the light most favorable to Lauterbach
as the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). For these reasons, the Parmenter Affidavit does not
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shift the burden of proof contrary to the Equal Pay Act, and it
should not be struck.
III.

CONCLUSION

For these reasons, Lauterbach’s Motion to Strike the Affidavit
of Katherine Parmenter (d/e 18) is DENIED. Lauterbach may fully
depose Katherine Parmenter by February 15, 2015. The parties are
DIRECTED to file supplemental pleadings, if any, on or before
March 2, 2015. The parties may file responses to any supplemental
pleading on or before March 16, 2015.
IT IS SO ORDERED.
ENTER: January 12, 2015
FOR THE COURT:

s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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