HAYNES v. INDIANA UNIVERSITY et al

Filing 157

ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO FILE SURREPLY AND MOTION TO SUPPLEMENT EVIDENCE - The Court hereby GRANTS in part and DENIES in part Dr. Haynes' 130 Motion for Leave; and DENIES Dr. Haynes' 132 Motion to Supplement. Withi n seven (7) days from the entry of this Order, Dr. Haynes shall file a surreply to address Defendants' counsel's affidavit and Defendants' theory on qualified immunity. Dr. Haynes is reminded that any evidence submitted in the surreply must be limited to the affidavit and the qualified immunity arguments and any extraneous evidence will be stricken completely. (See Order.) Signed by Judge Larry J. McKinney on 7/31/2017. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RAY K. HAYNES Ph.D.,
Plaintiff,
vs.
INDIANA UNIVERSITY,
THE BOARD OF TRUSTEES OF
INDIANA UNIVERSITY, et al.
Defendants.

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No. 1:15-cv-01717-LJM-DKL

ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO FILE SURREPLY
AND MOTION TO SUPPLEMENT EVIDENCE
This matter is before the Court on Plaintiff Dr. Ray Haynes’ Motion for Leave to
File Surreply in Opposition to Defendants’ Motion for Summary Judgment (“Motion for
Leave”). Dkt. 130. Dr. Haynes asserts that Defendants raised new arguments, evidence,
and objections in their reply brief. Dkt. 94. Dr. Haynes has also submitted a Motion to
Supplement Plaintiff’s Designation of Evidence in Opposition to Defendant’s [sic] Motion
for Summary Judgment (“Motion to Supplement”). Dkt. 132. The Court will address each
of these motions in turn.
I. MOTION FOR LEAVE
Local Rule 56-1(d) states, “A party opposing a summary judgment motion may file
a surreply brief only if the movant cites new evidence in the reply or objects to the
admissibility of the evidence cited in the response.” It further states that the surreply
“must be limited to the new evidence and objections.” “District courts are entitled to

‘considerable discretion in interpreting and applying their local rules.’” Dr. Robert L.
Meinders, D.C., Ltd. v. UnitedHealthcare, Inc. 800 F.3d 853, 858 (7th Cir. 2015) (quoting
Cuevas v. United States, 317 F.3d 751, 752 (7th Cir. 2003)).
Dr. Haynes has submitted his proposed surreply with his Motion for Leave. Dkt.
130-1.
A. NEW EVIDENCE
Dr. Haynes claims that Defendants introduced new evidence in their reply brief,
including: (1) an affidavit from Defendants’ counsel (Dkt. 121-1); (2) an affidavit from
Krista Glazewski (Dkt. 121-2); (3) a book chapter entitled “Complex Adaptive Mentoring
Programs: How to Use in Developmental Networks” by Dr. Haynes (Dkt. 121-3); (4)
additional designations from the deposition of Gerardo Gonzalez (Dkt. 121-4); (5) an
email from Thomas Brush to Elizabeth Boling (Dkt. 121-5); (6) additional designations
from the deposition of Joyce Alexander (Dkt. 121-6); (7) external reviews of Yonjoo Cho
(Dkt. 121-7); (8) an affidavit from Jane Kaho (Dkt. 121-8); and (9) excerpts from the
deposition of Barbara Bichelmeyer (Dkt. 121-9). Dkt. 130 at 2. Dr. Haynes asserts that
this new evidence is not admissible and that Defendants use it to advance new
arguments. Dkt. 130 at 2.
Dr. Haynes first challenges the affidavit from Defendants’ counsel and how it
relates to when Dr. Haynes acquired knowledge of alleged discrimination. Dr. Haynes
claims that this affidavit is not admissible because Defendants’ counsel lacked personal
knowledge. Dkt. 143 at 6-7. “An affidavit or declaration used to support a motion must
be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.” Fed. R.

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Civ. P. 56(c)(4) (“Rule 56(c)(4)”).

The affidavit states Defendants’ counsel was

responsible for the production of documents to Dr. Haynes, which is sufficient to establish
that Defendants’ counsel possessed personal knowledge and was competent to testify
as to their production. Dkt. 121-1. Therefore, the affidavit is admissible.
Nonetheless, the affidavit does raise new evidence in support of Defendants’
allegation that Dr. Haynes’ claims were not timely filed. In their original brief, Defendants
simply cite to the Complaint to prove that Dr. Haynes was aware of the alleged evidence
of discrimination as early as October 24, 2014. Dk. 67 at 15-16. The affidavit of Defense
counsel, however, sheds new light on this alleged admission and constitutes new
evidence. Accordingly, Dr. Haynes shall be permitted to respond to the allegations in
Defendants’ counsel’s affidavit.
Dr. Haynes also cites the other evidence raised for the first time in Defendants’
reply brief as “new evidence and new arguments” to which he should be able to respond.
Dkt. 143 at 13. Dr. Haynes specifically cites to his proposed surreply to demonstrate that
there was: (1) admissible evidence that he was qualified for tenure; (2) ample evidence
of a pattern of discrimination against African American males; and (3) sufficient evidence
of bias against Dr. Haynes during his tenure review process. Dkt. 143 at 13. In his
proposed surreply, Dr. Haynes introduces evidence from two experts, Dr. Laura Perna,
to establish that he was as qualified as a professor that received tenure the year before
Dr. Haynes’ review; and Dr. Anthony Greenwald, to establish that there were multiple
indications of implicit bias in Dr. Haynes’ tenure review. Dkt. 130-1 at 13-17. Notably,
however, neither of the experts’ proposed evidence relates to alleged the “new evidence”
that Dr. Haynes cites in his Motion for Leave. Moreover, none of the allegedly new

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evidence or new arguments cited by Dr. Haynes is mentioned in this section of his
proposed surreply. Dr. Haynes’ proposed argument is not related to the allegedly new
evidence or new arguments he cites and must be rejected.
Accordingly, Dr. Hayne’s Motion for Leave to respond to Defendants’ new
evidence is GRANTED in part and DENIED in part.
B. QUALIFIED IMMUNITY
Defendants argued in their initial brief that both Indiana University and the
individually named defendants have sovereign immunity from Dr. Haynes’ Section 1981
claims. Dkt. 67 at 15-17. Specifically, Defendants argued that all of them are
immune from monetary losses incurred by Dr. Haynes’ denial of tenure. Dkt. 67 at 1517. Dr. Haynes claims that the Defendants argued in their reply brief, for the first time,
that Defendants seek immunity from both monetary and injunctive relief and assert
qualified immunity as a defense. Dkt. 130, ¶¶ 9, 10. Defendants made clear in their initial
brief that they only sought to bar Dr. Haynes’ monetary claims.

Dkt. 67 at 15-17.

Defendants did not, however, raise the qualified immunity defense until their reply brief.
Therefore, Dr. Haynes’ Motion for Leave to respond to Defendants’ qualified immunity
argument is GRANTED in part and DENIED in part.
C. CAT’S PAW ARGUMENT
Dr. Haynes also seeks to file his surreply in response to Defendants’ “cat’s paw”
theory, which he claims is first introduced in Defendants’ reply. Dkt. 143 at 11-12. Dr.
Haynes seeks to rebut this argument and once again introduce the expert report of Dr.
Greenwald. In a “cat’s paw” case, an employee seeks “to hold his employer liable for the
animus of a supervisor who was not charged with making the ultimate employment

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decision.” Staub v. Proctor Hosp., 562 U.S. 411, 416 (2011). Dr. Haynes claims that
Defendants did not argue this theory in their initial brief and that he should not have to
“forecast” that the argument would be made in their reply. Dkt. 143 at 11. Defendants
stated in their initial brief, however, that “Dr. Haynes has no evidence that any of the
decision-makers at the higher levels of review were influenced by any alleged improper
motivation on the part of Dr. Alexander or Dr. Brush.” Dkt. 67 at 31. Although Defendants
specifically label their argument as a “cat’s paw” theory for the first time in their reply brief,
Defendants sufficiently asserted in their initial brief the belief that “cat’s paw” liability was
not applicable in this case. It should also be noted that a “cat’s paw” theory is one that is
advanced by aggrieved employees, in this case Dr. Haynes. Therefore, if Dr. Haynes
had any evidence or argument relating to this type of liability, it was incumbent upon him
to raise it in his response brief rather than wait for “an opportunity to rebut this new
argument” in a surreply. Dkt. 143 at 11. See U.S. ex rel. Abner v. Jewish Hosp. Health
Servs., 4:05-cv-106-RLY-WGN, 2010 WL 811288, at *1 (S.D. Ind. Mar. 3, 2010) (stating
that a “party is not entitled to hold back evidence until the filing of a surreply.”).
Accordingly, Dr. Haynes’ Motion for Leave with respect to Defendants’ “cat’s paw”
theory is DENIED.
D. SUPPLEMENTARY DESIGNATION
Finally, Dr. Haynes seeks to provide “a supplementary designation of evidence in
response to Defendants’ objections to his evidence.” Dkt. 143 at 12. Specifically, Dr.
Haynes offers the full expert report of Dr. Perna “in response to challenges to his
evidence, including reports from his experts.” Dkt. 143 at 12. This logic is incongruous
with the purpose of Local Rule 56-1(d), which requires that surreplies address new

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evidence or arguments submitted for the first time in a reply brief. Dr. Haynes essentially
argues that because Defendants objected to Dr. Perna’s declaration in their reply, Dr.
Haynes is now allowed to submit the full expert report to address these objections, rather
than actually address the objections to the declaration themselves.

This backdoor

attempt to admit his expert’s testimony contravenes the purpose of Local Rule 56-1(d).
Therefore, Dr. Haynes’ Motion for Leave to file supplementary evidence is DENIED.
II. MOTION TO SUPPLEMENT
In his Motion to Supplement, Dr. Haynes seeks to augment his response in
opposition to summary judgment with the expert reports of Dr. Perna and Dr. Greenwald.1
Dkt. 132. Dr. Haynes claims that the expert reports were “indisputably unavailable” at the
time he filed his response brief. Dkt. 147 at 4. Dr. Haynes states that “it is totally
understandable why both of Dr. Haynes’s [sic] experts, who are indisputably both in the
field of academia, would be extremely busy in the month of May due to the end of the
[s]pring 2017 term.” Dkt. 147 at 4. Yet it is far from understandable why Dr. Haynes is
attempting to bring forth this evidence at this juncture in the proceedings after the
Defendants’ Motion for Summary Judgment has been fully briefed and is ripe for
adjudication. Moreover, the only time that Dr. Haynes ever mentioned the need for more
time relating to his experts was in his Motion for Enlargement of Time to Disclose Experts
and Complete Expert Discovery (“Motion for Enlargement”) filed on April 25, 2017. Dkt.

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Dr. Haynes also seeks to supplement his response in opposition to summary judgment
with an email chain that he claims he specifically referred to in the response, but fails to
provide a citation for it. The Court declines to scour the response in an attempt to discover
the email chain’s location. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(“Judges are not like pigs, hunting for truffles buried in briefs.”). Accordingly, Dr. Haynes
has waived his right to supplement this piece of evidence.
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86. In the Motion for Enlargement, Dr. Haynes indicates that his intended experts were
preparing for finals at the end of the spring 2017 term, but also explicitly states that “[t]he
relief sought in this Motion does not disturb the dispositive motion deadlines or any other
deadlines in this matter[.]” Dkt. 86, ¶ 14. And, although Dr. Haynes complains that the
Defendants did not object to the extensions for his expert disclosures, that failure to object
in no way relates to the use of expert testimony in a response on summary judgment.
Dkt. 147 at 2.
Most telling, however, is that beginning on April 20, 2017, Dr. Haynes filed four
extensions of time in which to file his response brief and not one of these motions alluded
to the unavailability of Dr. Haynes’ expert reports. Dkts. 81; 91-93. He also filed a
Rule 56(d) motion, arguing that additional discovery was necessary for him to fully
respond to the motion for summary judgment, but did not mention anything related to his
experts. Dkt. 109. In the ruling on Dr. Haynes’ Rule 56(d) motion, the Court noted that
any alleged discovery issues “should have been addressed in a timely fashion first with
the parties and then with the Court.” Dkt. 150 at 21. The same holds true in this instance.
If Dr. Haynes wished to utilize the expert reports in his response brief, he should have
petitioned the Court for more time for his experts to complete the reports prior to the
deadline for his response brief; allowing Dr. Haynes to supplement his response at this
stage would be prejudicial to the Defendants. For these reasons, Dr. Haynes’ Motion to
Supplement is DENIED.

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III. CONCLUSION
In summary, the Court hereby GRANT in part and DENIES in part Dr. Haynes’
Motion for Leave (Dkt. 130); and DENIES Dr. Haynes’ Motion to Supplement (Dkt. 132).
Within seven (7) days from the entry of this Order, Dr. Haynes shall file a surreply to
address Defendants’ counsel’s affidavit and Defendants’ theory on qualified immunity.
Dr. Haynes is reminded that any evidence submitted in the surreply must be limited to the
affidavit and the qualified immunity arguments and any extraneous evidence will be
stricken completely.
IT IS SO ORDERED this

31st

day of July, 2017.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution attached.

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Distribution:

Sandra L. Blevins
BETZ & ASSOCIATES
[e-mail]
Courtney E. Endwright
BETZ & BLEVINS
[e-mail]
Kevin W. Betz
BETZ & BLEVINS
[e-mail]
Melissa A. Gardner
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
Michael C. Terrell
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
Michele Lee Richey
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

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