In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-2876

KERRY STINNETT,

Plaintiff-Appellant,

v.

IRON WORKS GYM/EXECUTIVE HEALTH SPA, INCORPORATED,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 98 C 50171—Philip G. Reinhard, Judge.

____________

ARGUED FEBRUARY 22, 2002—DECIDED AUGUST 26, 2002

____________

Before POSNER, KANNE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. The law allowing victims of

sexual harassment to sue their employers applies only to

those businesses with fifteen or more employees for each

working day in each of twenty or more calendar weeks

in the current or preceding calendar year. See 42 U.S.C.

§ 2000e(b). In order to proceed in his sexual harassment

claim, Kerry Stinnett was thus required to show that his

employer, Iron Works Gym/Executive Health Spa, Incorporated (collectively “Executive Health”), employed at least

fifteen persons during 1995, 1996 or 1997. This proved to

be an insurmountable task for Stinnett, however, because
2 No. 01-2876

the Executive Health Spa was a house of prostitution and

criminal enterprises rarely keep accurate personnel or

payroll records. The district court granted summary judgment in favor of the employer because Stinnett had inadequate evidence to show the number of employees at Executive Health at the relevant time. We affirm.

I.

We construe the facts in a light most favorable to Stinnett, the party opposing summary judgment. Smith v. City

of Chicago, 242 F.3d 737, 742 (7th Cir. 2001). Kerry

Stinnett was employed as the manager of the Iron Works

Gym (the “Gym”) from June 1996 through July 1997. The

Gym employed nine persons including Stinnett. The Gym,

which was a sole proprietorship, was wholly owned by the

Executive Health Spa (the “Spa”), another business down

the street from the Gym. The Spa was incorporated and its

sole shareholder was Stinnett’s boss, Kathy Andrews. For

reasons we will discuss below, the district court counted the

Gym and Spa as a single entity when determining the

number of employees. The Gym, so far as the record shows,

was actually a gym. The Spa, however, was a house of prostitution providing sexual services to its patrons under the

guise of “massage.” Not surprisingly, the Spa’s payroll

records are somewhat sketchy and show that the Spa never

employed enough workers to meet the minimum requirement of fifteen, even if the Spa and Gym are counted together and even if the “spa attendants” (a creative euphemism for prostitutes) are counted as employees. 

In order to meet the minimum requirements of section

2000e(b), Stinnett sought to demonstrate that Executive

Health had fifteen or more employees for each working day

in 20 or more calendar weeks in the current or preceding

calendar year. For Stinnett’s claim, this required him to

show that Executive Health had fifteen or more employees
No. 01-2876 3

in 1995, 1996 or 1997. Posed with the rather difficult problem of proving the number of employees in a business that

has much to hide, Stinnett offered the following evidence in

support of his claim that the Spa, in combination with the

Gym, employed fifteen or more persons: (1) the deposition

of Carrie Lee, a former spa attendant; (2) the transcript of

a 1999 conversation between Kathy Andrews and a prospective employee taped during an undercover criminal

investigation of the Spa; (3) the affidavit of Kerry Stinnett

himself; and (4) the defendants’ answers to interrogatories,

Local Rule 56.1 statement, and Andrews’ affidavit. On the

motion of Executive Health, the court struck the first three

categories of evidence that Stinnett offered to demonstrate

an adequate number of employees at Executive Health. The

court struck the deposition of Lee because her personal

knowledge of the workings of the Spa ended in 1993,

substantially prior to the events alleged in the lawsuit. The

court struck the transcript of the conversation taped during

the criminal investigation because it referred only to the

number of persons working at the Spa in 1999, significantly

after the relevant time frame. Because Stinnett’s laterwritten affidavit conflicted with his deposition testimony,

the district court struck the paragraphs relating to the

number of employees. After reviewing the remaining evidence, the court found that Stinnett had no admissible

evidence in the record to support the claim that Executive

Health employed the requisite number of workers, and the

court therefore granted summary judgment in favor of

Executive Health. Stinnett appeals.

II.

We review the district court’s grant of summary judgment

de novo, construing all facts and drawing all inferences

from the record in the light most favorable to the nonmoving party. Fed. R. Civ. Pro. 56(c); Smith, 242 F.3d at
4 No. 01-2876

742. In granting summary judgment, the court may consider any evidence that would be admissible at trial. Smith,

242 F.3d at 741. The evidence need not be admissible in

form (for example, affidavits are not normally admissible at

trial), but it must be admissible in content. Winskunas v.

Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). Here, the

district court struck the evidence not because of its form but

because of its content. In order to determine whether the

court properly granted summary judgment, we must first

consider whether the court erred in granting Executive

Health’s motion to strike the evidence which Stinnett

sought to use to prove the requisite number of employees.

We review the district court’s grant of a motion to strike for

abuse of discretion. Winfrey v. City of Chicago, 259 F.3d

610, 618-19 (7th Cir. 2001). The parties agree that the relevant time period for determining whether Executive

Health was an employer subject to the discrimination law

was 1995, 1996 or 1997. 

Executive Health does not contest the district court’s

conclusion that the Spa and the Gym should be treated as

a single entity for the purposes of determining the number

of employees. See Papa v. Katy Indus., Inc., 166 F.3d 937,

940-41 (7th Cir. 1999), cert. denied, 528 U.S. 1019 (1999)

(setting forth the factors for determining whether to count

together the employees of affiliated corporations for the

purposes of section 2000e); Moriarty v. Svec, 164 F.3d 323,

336 (7th Cir. 1998) (Manion, J., concurring) (noting that a

sole proprietorship has no legal identity separate from the

entity that owns it). The district court found that the Gym,

as a sole proprietorship, had no legal identity separate from

the Spa, a corporation which wholly owned the Gym. We

will therefore analyze the evidence as if the Spa and the

Gym are a single legal entity and will count their employees together in determining if the standard set by section

2000e is met.
No. 01-2876 5

We begin with the deposition of Carrie Lee, one of the spa

attendants. Lee had considerable difficulty recalling the

dates of her employment at the Spa in part because she quit

once and was terminated twice. Ultimately, though, she

testified that she last worked at the Spa in 1993. She stated

that when she left the Spa for the final time in 1993, there

were approximately 20 to 23 women working there. She

stated that approximately 10 women worked each of two

shifts and that another woman answered phones. Although

she also stated that an equal number of women worked at

the Spa in 1996 and 1997, she clarified that she had no

personal knowledge of this fact and based it on the complaints of a friend who worked at the Spa at that time, and

who was annoyed that she had to work with so many other

women. Because Lee’s personal knowledge ended in 1993,

two years before the relevant time, the district court struck

Lee’s deposition (and presumably would have struck her

testimony at trial) because her personal knowledge of the

number of workers ended in 1993. 

The district court similarly struck the transcript of an

audiotape made during a criminal investigation of the Spa

in 1999. A woman named Tammy Strawberry, cooperating

with local authorities, wore a wire into a meeting with

Kathy Andrews. The ostensible purpose of the meeting was

that Strawberry was applying for a job as a spa attendant

at the Executive Health Spa. In the course of the conversation, Andrews volunteered that “We have what, 25, 30

people that work here.” R.40, Transcript at 15. The conversation took place on September 2, 1999, approximately a

year and a half after Stinnett terminated his employment

at the Gym. The district court struck the transcript because

the conversation occurred in 1999 and was not relevant to

how many employees worked at Executive Health during

1995, 1996 or 1997. Under the district court’s ruling, both

the Lee deposition and the Strawberry transcript described

the number of employees at times that were too remote to
6 No. 01-2876

be relevant to the number of employees during 1995, 1996

and 1997.

Stinnett argues that if there were 20 employees before the

relevant time and 20 employees after the relevant time, the

court must infer that there were at least 15 employees

during the relevant time. But we cannot find that the district court abused its discretion in striking these materials

from the record on the ground that they were too remote in

time to be relevant. The court was not obliged to stretch

this far to infer the requisite number of employees. See

Horwitz v. Board of Educ. of Avoca School Dist. 37, 260 F.3d

602, 619 (7th Cir. 2001) (protected speech occurring eighteen months before termination is too remote in time to raise

inference that termination was related to speech); Alverio

v. Sam’s Warehouse Club, Inc., 253 F.3d 933, 943 (7th Cir.

2001) (court need not infer that termination was retaliatory

when allegedly triggering event occurred eighteen months

prior to termination); Robin v. Espo Engineering Co., 200

F.3d 1081, 1089 (7th Cir. 2000) (discriminatory comments

made two years prior to termination too remote in time to

give rise to inference that termination was due to discrimination). Perhaps if Stinnett produced evidence that the

number of employees remained fairly constant over time, or

if he possessed evidence regarding the number of employees

closer in time to the relevant events, the court would have

been obliged to find the before-and-after numbers relevant.

But evidence of the number of employees two years before

or eighteen months after the relevant time is too remote to

give rise to an inference regarding the number of employees

at the relevant time. This conclusion is bolstered by evidence demonstrating that many of the women working for

the Spa, including Carrie Lee, had volatile employment histories marked by frequent departures. The number and

identity of workers appears to have been in flux throughout

the relevant time period. In those circumstances, we find
No. 01-2876 7

the district court did not abuse its discretion in striking

Lee’s deposition and the Strawberry transcript.

The court also struck paragraphs nine and eleven of

Stinnett’s affidavit because they lacked foundation and

because they conflicted with his deposition testimony. The

district court has great discretion in deciding whether to

allow a party to change damaging deposition testimony with

a supplemental affidavit. Maldonado v. U.S. Bank, 186 F.3d

759, 769 (7th Cir. 1999). “Courts generally ignore attempts

to patch-up potentially damaging deposition testimony with

a supplemental affidavit unless the party offers a suitable

explanation—e.g., confusion, mistake or lapse in memory—

for the discrepancy.” Id. The stricken paragraphs describe,

among other things, the number of spa attendants working

each of three shifts at the Spa, with a total number of 20 to

25 women plus an additional staff of five other employees.

The court noted first that Stinnett had no personal knowledge of the number of workers at the Spa before he came to

work at the Gym in July 1996. Between July 1996 and July

1997, when Stinnett was working at the Gym, he visited the

Spa only once a week to deliver the receipts from the Gym.

He occasionally performed an odd job at the Spa but spent

very little time there by his own admission. In part because

he had no basis for his knowledge of the number of employees, the court struck these paragraphs from the affidavit.

Stinnett initially testified in his deposition that Andrews

employed 25 to 30 women at the Spa. Stinnett Dep. at 152.

When cross-examined on whether these women were fulltime or part-time employees, Stinnett replied, “I don’t know

how those girls worked.” Stinnett Dep. at 162. He clarified,

“All I know is that somebody I knew worked there. If Kathy

[Andrews] paid them or if the men paid them, who paid

them, I don’t know.” Stinnett Dep. at 162. He testified that

he did not spend much time at the Spa because Andrews

did not want him there. Stinnett Dep. at 163. He testified

that Andrews controlled the way the spa attendants
8 No. 01-2876

worked, but admitted he was relying not on what he personally heard or observed but rather on what he was told.

Stinnett Dep. at 163-64. When asked again to clarify how

the spa attendants were paid, he stated, “They were paid by

the men that came in there for the service.” Stinnett Dep.

at 164. But he also testified that Andrews paid them as

well, and that the spa attendants paid Andrews rent for

using rooms at her facility to conduct their business. Stinnett Dep. at 164-66. Stinnett was unable to explain why

Andrews was paying women who were paying her to rent

rooms. Ultimately, he concluded, “How she runs her little

business, that’s her business. It has made her a wealthy

woman.” Stinnett Dep. at 166. 

More than a year after giving this erratic testimony, in

the face of a motion for summary judgment, Stinnett’s confusion apparently cleared up. He stated definitively in his

affidavit the number of women working each shift, that

they were paid cash by Andrews, and that the minimum

number of employees at the Spa never dropped below fifteen during the time he was working for the Gym. Having

previously testified that he had no idea how the women

were paid, in his affidavit Stinnett stated that he knew that

Andrews paid them cash because she told him she did.

Stinnett has never explained the discrepancies between his

deposition testimony and his affidavit. The district court did

not err in striking those portions of Stinnett’s affidavit that

conflicted with his prior deposition testimony. See Cowan v.

Prudential Ins. Co. of America, 141 F.3d 751, 756 (7th Cir.

1998) (parties may not defeat summary judgment by creating sham issues of fact with affidavits that contradict

their prior depositions); Bank of Illinois v. Allied Signal

Safety Restraint Systems, 75 F.3d 1162, 1168-70 (7th Cir.

1996) (same); Adelman-Tremblay v. Jewel Companies, Inc.,

859 F.2d 517, 520 (7th Cir. 1988) (same). Any references to

the number of employees or how they were paid were

properly excluded because Stinnett gave conflicting evi-
No. 01-2876 9

dence and then claimed ignorance of the inner workings of

the Spa at his deposition.

The remaining evidence regarding the number of employees at Executive Health during the relevant time demonstrates that there were fewer than fifteen employees.

Stinnett cites the defendants’ Local Rule 56.1 statement,

Kathy Andrews’ affidavit and the defendants’ answers to

interrogatories as evidence supporting his claim that there

were fifteen employees. He maintains that if the spa

attendants are counted as employees rather than independent contractors, Executive Health had well in excess of

fifteen employees. Executive Health, of course, maintains

that the spa attendants were independent contractors, but

argues in the alternative that even if they are counted as

employees, they do not raise the total number of employees

to fifteen for the relevant time period. Executive Health is

the subject of a criminal investigation and it is not surprising that it seeks to distance itself from the spa attendants,

as any criminal enterprise would seek to distance itself

from the front lines of criminal activity. This quandary over

the proper status of the spa attendants turns out to be a red

herring, though. We have carefully reviewed all of the

evidence on which Stinnett relies and none of it shows that

there were more than fourteen employees for each working

day in each of twenty or more calendar weeks in the relevant calendar years, even if spa attendants are counted as

employees rather than independent contractors.

That brings us finally to the ultimate question of whether

the district court properly granted summary judgment in

favor of Executive Health. Without any admissible evidence

showing the requisite number of employees, Stinnett cannot

maintain his sexual harassment claim. The court was therefore correct to grant judgment in favor of the employer.

AFFIRMED.
10 No. 01-2876

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—8-26-02