UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION

EBONY APPLETON, ) 

 ) 

 Plaintiff, ) 

 ) 

vs. ) CASE NO. 2:16-cv-448-APR 

 ) 

CITY OF GARY, ) 

 ) 

 Defendant. ) 

BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE 

 PORTIONS OF PLAINTIFF’S RESPONSE TO 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

The Plaintiff’s Response to Defendant’s Motion for Summary Judgment [collectively, 

ECF Nos. 65-68] is replete with inadmissible evidence that should be stricken from the record 

and not considered by this Court. In a series of submissions, Plaintiff Ebony Appleton 

(“Plaintiff”) offers multiple documents, statements, and speculative comments completely 

unrelated to her discrimination and retaliation dispute with the Defendant, the City of Gary (the 

“City”). Because Plaintiff’s submissions are irrelevant, immaterial, and unsupported, the 

documents and assertions should not be considered by this Court. 

I. PROCEDURAL HISTORY 

Plaintiff’s Complaint raises claims for sex discrimination and retaliation under Title VII. 

By this Court’s Order of April 13, 2017 [ECF No. 25] and Plaintiff’s own admission, Plaintiff 

has no pending claim for sexual harassment. Period.

On May 14, 2018, the City filed its Motion for Summary Judgment as to Plaintiff’s sex 

discrimination and retaliation claims. On June 14, 2018, Plaintiff filed four separate documents 

in response: 

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• Plaintiff Request that Defendants Motion for Summary Judgement be Denied 

[ECF No. 65], which appears to be a memorandum of law; 

• Plaintiffs Support to Dismiss Defendant Summary Judgement [ECF No. 66], 

which includes a reference to Plaintiff’s post-employment application for 

unemployment benefits; 

• Plaintiffs Support for Dismissal of Defendants Summary Judgement [ECF No. 

67], which appears to be Plaintiff’s effort to present a Statement of Genuine 

Dispute under N.D. Indiana L.R. 56-1(b)(2); and 

• Declaration of Ebony Appleton [ECF No. 68], which includes speculation, 

opinion, legal arguments and conclusions.1

(For purposes of this Motion to Strike, the responsive filings are referenced collectively as the 

“Response”). 

Because the collective Response relies on documents, assertions, and personal statements 

that are entirely unrelated to the claims in this case, the City respectfully moves this Court to 

disregard the alleged evidence, and to strike, as outlined below, portions of Plaintiff’s Response. 

II. LEGAL STANDARD 

FED.R.CIV.P. 56(c)(2) provides that “[a] party may object that the material cited to 

support or dispute a fact cannot be presented in a form that would be admissible in evidence.” 

Additionally, RULE 56(c)(4) outlines the rules for declarations like the one submitted by Plaintiff: 

“An affidavit or declaration used to support or oppose a motion must be made on personal 

knowledge, set out facts that would be admissible in evidence, and show that the affiant or 

 

1

 As recognized by this Court, the following statements are improper for inclusion in an affidavit or declaration and 

therefore should be disregarded: “(1) [C]onclusory allegations lacking supporting evidence, see Young v. Monahan, 

420 Fed. Appx. 578, 583 (7th Cir. 2011); (2) legal argument, see Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir. 1985); 

(3) inferences or opinions not “grounded in observation or other first-hand experience,” Visser v Packer Eng’g 

Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991); (4) mere speculation or conjecture, see Stagman v. Ryan, 176 F.3d 

986, 995 (7th Cir. 1999); and (5) statements in affidavits that blatantly contradict prior sworn testimony in an 

attempt to create sham issues of genuine dispute. See Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 624 (7th Cir. 

2002); Bank of Ill. V. Allied Signal Safety Restraint, Sys., 75 F.3d 1162, 1168-69 (7th Cir. 1996).” Marion T, LLC v. 

Formall Inc., No. 1:12-cv-00456, 2016 U.S. Dist. LEXIS 42957, at *3 (N.D. Ind. March 30, 2016)(citations 

omitted). 

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declarant is competent to testify on the matters stated.” An affidavit or declaration not in 

compliance with Rule 56 cannot defeat a summary judgment motion. Marion T, LLC v. Formall 

Inc., No. 1:13-cv-00132; 1:12-cv-00456, 2016 U.S. Dist. LEXIS 42957 (N.D. Ind. March 30, 

2016)(citations omitted). 

The only question before this Court is whether Plaintiff was the victim of sex 

discrimination (specifically, whether she was suspended because she is a woman), or whether 

she was dismissed in retaliation for having complained of sex discrimination. In short, is it more 

likely than not that the alleged sex discrimination or retaliation occurred? See Ladenberger v. 

Gen. Signal Pump Grp./Aurora Pump, No. 00 C 4045, 2001 U.S. Dist. LEXIS 7461, *5 (N.D. Ill. 

May 31, 2001)(statements in affidavit regarding sexual harassment and discrimination were 

struck as lacking probative value in lawsuit about age discrimination) and Marion T, LLC, 2016 

U.S. Dist. LEXIS at *5 (striking agreement attached as an exhibit to plaintiff’s affidavit because 

it contradicted the Court’s earlier ruling regarding which agreement was the final version). 

Because most of the information in Plaintiff’s Response is extraneous, of no consequence 

to the central question of sex discrimination and retaliation, those portions should be stricken. 

III. ARGUMENT 

A. Plaintiff’s Unrelated Unemployment Determination Should be Stricken. 

Plaintiff’s submission, Plaintiff’s Support to Dismiss Defendant Summary Judgment

[ECF No. 66], theoretically offers documentation intended to thwart the City’s summary 

judgment motion. Plaintiff offers the determination of the Indiana Department of Workforce 

Development that Plaintiff was entitled to unemployment compensation after she left her 

employment at the City. Not only does Plaintiff fail to authenticate or even refer to the 

unemployment decision in her Response, the document is of no consequence to her 

discrimination and retaliation claims. 

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The question considered by the Department of Workforce Development is fundamentally 

different than the issues before the Court here. The process surrounding and determination of a 

former employee’s qualification for unemployment benefits under state law is not anything like 

pursuing a federal law claim in this court. To the extent Plaintiff submits the document in ECF 

No. 66 as evidentiary support for her claims, it should be stricken as irrelevant. For, “the nature 

of the proceeding to determine eligibility for unemployment compensation is fundamentally 

different than a Title VII action, and the conclusions of that state agency are in no way binding 

on the district court.” Martin v. Dep’t of Corr., o. 1:02-cv-1232-DFH-TAB, 2005 U.S. Dist. 

LEXIS 6715 (S.D. Ind. April 13, 2005)(citing Morton Intern., Inc., 2000 U.S. Dist. LEXIS 

10198 (S.D. Ind. 2000)(citing McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 798, n. 11 (7th

Cir. 1997)); see also Carr v. City of E. Chi., No. 2:07-CV-73 JVB, 2009 U.S. Dist. LEXIS 

27892, *12-14 (N.D. Ind. March 31, 2009). The case law is clear that unemployment 

compensation documents “cannot be used to establish Plaintiff’s prima facie case or to show that 

the defendant’s reasons for discharging him were pretextual because of the fundamental 

differences between proceedings to determine eligibility for unemployment compensation and a 

Title VII action. The burden of proof is different in each proceeding.” Id. 

Because Plaintiff’s eligibility for unemployment benefits has no bearing on her 

underlying case, ECF No. 66 (Plaintiffs Support to Dismiss Defendant Summary Judgement), 

Exhibit 2, should be stricken in its entirety. 

B. Plaintiff’s Submission of an Unrelated Criminal Case Should be Stricken. 

Similarly, Plaintiff’s reliance on an unrelated criminal decision should also be 

disregarded. Plaintiff submitted at ECF No. 65 her “Request that Defendants Motion for 

Summary Judgment Be Denied.” This submission appears to be Plaintiff’s legal argument 

opposing the City’s summary judgment motion. 

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But, attached to Plaintiff’s two-page “brief” are 158 pages of legal documents regarding 

United States of America v. Dante Leandro Reyes, a habeas corpus case filed in this Court. It is 

unclear why. Plaintiff does not refer to the case anywhere in her Response (but for its 

submission), and she does not even attempt to explain how the Reyes opinion supports her case. 

She cannot. To the extent Plaintiff offers the Reyes opinion as evidentiary support or as legal 

support, the case should be disregarded. The matters, and indeed, the nature of the matters before 

the Court in Reyes are different. Nothing in the 158 pages of Reyes makes it more or less likely 

that the Defendant is responsible for sex discrimination or retaliation in violation of Title VII. 

C. Plaintiff’s References to Unrelated and Untimely Wage Claims Should be 

Stricken. 

In Plaintiff’s Declaration of Ebony Appleton [ECF No. 68, p. 5], Plaintiff includes 

additional allegations that have nothing to do with sex discrimination or retaliation. More 

specifically, Plaintiff asserts she was not adequately paid for travel time when she attended a trip 

with the Gary Youth Council. But, apart from the lack of supporting evidence (e.g., policy 

documents, time sheets, pay stubs, etc.), this has nothing to do with her sex discrimination and 

retaliation claim.2

Similarly, in her Support for Dismissal of Defendants Summary Judgment [ECF No. 67, 

p. 1], Plaintiff insists her “guaranteed” hours were reduced. Although the City disputes Plaintiff’s 

allegations, it is irrelevant. In short, Plaintiff’s claim is too late. (cf. Reply Brief, p. 7). Plaintiff 

did not timely file a Charge of Discrimination and hence, whether her hours were reduced is 

irrelevant and should not be considered. 

 

2

 A court may strike evidence that is irrelevant, “even statements in a Rule 56 affidavit.” Maher v. Rowen Group, 

Inc., No. 12 C 7169, 2015 U.S. Dist. LEXIS 5933, *19 (N.D. Ill. January 20, 2015). Relevance is a threshold inquiry 

in considering the admissibility of evidence. Relevant evidence is admissible; irrelevant evidence is not. 

FED.R.EVID. 402. Under FED.R.EVID. 401, evidence is relevant if “(a) it has any tendency to make a fact more or 

less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” 

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D. Plaintiff’s Unrelated Harassment Allegations Should Be Stricken. 

Plaintiff’s lawsuit does not include a sexual harassment or hostile work environment 

sexual harassment claim. She brings only claims of sex discrimination and retaliation against the 

City. Nevertheless, Plaintiff devotes large portions of her Response to facts, opinions and 

allegations of harassment. Because those claims are not before this Court, her allegations should 

be stricken. In her Declaration of Ebony Appleton [ECF No. 68], Plaintiff provides some 

preliminary background at page 3 for her allegations: “Immediately after Ms. Cecelia Garmon 

was promoted to serve as acting Director and the harassment began.” Ms. Appleton’s 

Declaration continues, 

• Cecelia Garmon “said [Plaintiff] was working too many hours.”

• Patricia Covington “accidentally opened” Plaintiff’s check.

• Ms. Garmon told Plaintiff she could not bring her daughter to work.

• Ms. Garmon’s staff “played follow the leader and kept with the harassment. . . .”

• “Ms. Willette stated in front of the other co-workers [Plaintiff] wore her legging 

so the new boss could see her big butt which is very sexual and poses sexual 

harassment.” 

• Marcus Hare “verbally and physically assault[ed]” Plaintiff by “yelling and 

screaming clapping his hands” after she allowed her children to wander around 

the building. 

• The City did not follow its Anti-Harassment policy.

• Patricia Covington harassed Plaintiff including by “trying to add minutes to Ms. 

Appletons [timekeeping] record to make it as if she was late . . . showing 

Patricias vengeance to escalate.” 

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[ECF No. 68, pp. 3-7; 9-10.] In addition, in Plaintiff’s Support for Dismissal [ECF No. 67], 

Plaintiff makes multiple, inadmissible and unsupported allegations regarding harassment. 

• For example, she alleged that her “harasser,” Patricia Covington, was allowed to 

supervise her. Not only was Ms. Covington not Plaintiff’s supervisor (Barber 

Decl. ECF No. 60-1, paragraph 30), there are no pending allegations of 

harassment. The reference and allegations should be stricken. 

• Moreover, the unsupported claims of “harassment” by the cousin trio of “Ms. 

Lathan, Ms. Covington and Ms. Garmon,” [ECF No. 67, p. 3] should also be 

stricken. Plaintiff does not have a valid claim of harassment and her speculative, 

argumentative accusations about co-workers, do not constitute admissible 

evidence. 

Even if these claims were related to her underlying claims, Plaintiff’s statements are mere 

opinion and conjecture. Federal Rule of Evidence 602 requires that a declarant have personal 

knowledge about the matters to which he or she testifies. See Payne v. Pauley, 337 F.3d 767, 772 

(7th Cir. 2003); Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum, LLC, 779 F. 

Supp.2d 858, 872 (N.D. Ind. 2011). Plaintiff’s guess or opinion about what might be true is 

insufficient to constitute admissible evidence and should be stricken from the record. 

Further, to the extent Plaintiff describes what others allegedly told her rather than offer 

their sworn testimony, it should be disregarded.3

 A party may not rely on “inadmissible hearsay 

in an affidavit . . . to oppose a motion for summary judgment.” Fed.R.Evid. 802. See also 

Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996); Patel v. Allstate Ins. 

Co., 105 F.3d 365, 368 (7th Cir. 1997). 

 

3

 For instance, Plaintiff alleges Lori Latham told Plaintiff her position would be phased out. [ECF No. 68, p. 8.] 

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E. Plaintiff’s Photographs Are Not Admissible Evidence. 

Plaintiff has attached various photographs to her Plaintiffs Support for Dismissal of 

Defendants Summary Judgement [ECF No. 67. pp. 10-13]. The photographs are not 

authenticated and not relevant. Although the City understands the submitted photographs may 

hold some personal meaning for Plaintiff, they do not advance her legal claim against the City. 

Therefore, they should be disregarded for purposes of the pending legal issues before the Court. 

F. Plaintiff’s Reference to Her Alleged E-Mail to the City’s Mayor Should be 

Stricken. 

Plaintiff contends “Defendants would not produce the original email from Ms. Appleton 

to the mayor but would falsify document and produce the mayors response attached to the 

mayors assistant email that Ms. Appleton notified as well.” [ECF No. 67, p. 2.]4

 Not only is this 

allegation confusing, but appears to be an attempt to distract the Court and disparage the City by 

suggesting that the City wrongfully hid a “smoking gun” that would defeat summary judgment. 

The entire reference should be stricken. 

First, in answer to Plaintiff’s discovery requests, the City produced responsive documents 

within its possession. It did not intentionally withhold anything. Second, even if the “original email” was a complaint about Ms. Garmon as Plaintiff appears to allege, such an e-mail would 

have zero impact on the underlying claims of discrimination and retaliation. Whether she added 

another person to her list of individuals to whom she complained (e.g., the Mayor) does not 

make it more or less likely that she suffered discrimination or retaliation. 

 

4

 The City produced an email exchange between Plaintiff, Joi Whiteside, the mayor’s assistant, and Mayor Karen 

Freeman-Wilson. Plaintiff contacted Ms. Whiteside in July 2015 and informed her she was “looking to meet Mayor 

Wilson concerning [her] job.” Mayor Freeman-Wilson responded, directing Plaintiff to contact Lori Latham if she 

had a problem with her supervisor (Cecelia Garmon) and, if not satisfied, to contact Human Resources. [ECF No. 

42-2, p. 5.] While Plaintiff’s references are far from clear, this may be the exchange to which Plaintiff refers. 

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Moreover, to the extent Plaintiff is making a discovery complaint, it is not properly 

before the Court. Discovery closed February 28, 2016. [ECF No. 35.]5

 Accordingly, the 

allegations should be stricken. 

IV. CONCLUSION 

Plaintiff’s Response is overstocked with inadmissible evidence that should be disregarded 

and stricken from the record. Much of it spouts allegations of harassment that is most decidedly 

not before this Court. Other submissions reference administrative decisions that have no bearing 

on a discrimination claim, a criminal case that is completely inapposite, and a handful of other 

allegations that confuse instead of clarify. Plaintiff has pending claims for sex discrimination and 

retaliation--not for harassment; not for wage actions or tort claims or discovery disputes. Faced 

with the core issues before this Court, Defendant respectfully requests that this Court strike from 

the record the identified portions of the Plaintiff’s Response, and for all other appropriate relief. 

Respectfully submitted, 

BARNES & THORNBURG LLP 

By: /s/ Teresa A. Maginn 

 Jeanine M. Gozdecki 

 Teresa A. Maginn 

 700 1st Source Bank Center 

 100 North Michigan Street 

 South Bend, IN 46601-1632 

 Telephone: (574) 233-1171 

 Facsimile: (574) 237-1125 

 jeanine.gozdecki@btlaw.com 

teresa.maginn@btlaw.com 

Attorneys for Defendant 

 

5

 See Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001)(motion to compel denied where motion 

filed after discovery closed and after defendants filed motion for summary judgment.) 

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that a true and accurate copy of the foregoing Brief in 

Support of Defendant’s Motion to Strike Portions of Plaintiff’s Response to Defendant’s Motion 

for Summary Judgment was filed electronically. Service of this filing will be made on all ECFregistered counsel by operation of the court's electronic filing system. I further certify that on 

July 3, 2018, a copy of the foregoing was mailed, by first class U.S. Mail, postage prepaid and 

properly addressed to the Plaintiff at the following address:

Ebony Appleton 

1211 West 17th Avenue 

Gary, IN 46407

 s/ Teresa A. Maginn 

Name of Filing Attorney 

DMS 12744951v2 

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