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Sepanski v. Jani-King, Inc.

United States District Court, Second Circuit

August 16, 2013



WILLIAM M. SKRETNY, Chief District Judge.


Plaintiff, Marc Sepanski, alleges that his former employer, Jani-King, Inc. and Jani-King of Buffalo, Inc., discriminated against him on the basis of his sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et seq. and New York State Human Rights Law ("NYSHRL") Section 296. Currently before this Court is Defendants' motion for summary judgment and Defendants' separate motion to strike several aspects of Plaintiff's response to that motion. For the following reasons, Defendants' motion to strike is granted in part and denied in part; and their motion for summary judgment is granted.


A. Facts[1]

In February of 2005 Marc Sepanski, a male, was hired as the assistant operations manager for Jani-King of Buffalo, a wholly owned subsidiary of Jani-King, Inc., located in Amherst New, York. (Defs.' Stmnt., ¶ 7; Docket No. 27-3; Patrick Aff., ¶ 3; Docket No. 8-2; Speanksi Aff., ¶ 4; Docket No. 35-1.) It offers commercial cleaning and janitorial services to local businesses. (Defs.' Stmnt., ¶ 5.) Diane Honeck, a woman who was hired in July 2005 as the Operations Manager, supervised Sepanski. ( Id., ¶ 15.) It appears that the two got along until late December of 2005, when Honeck allegedly made the following remarks to Sepanski: "Why don't you grow some balls" and "how did you and the wife ever have kids if you don't have any balls." ( Id., ¶ 19). At least from that point on, Sepanski and Honeck had a contentious relationship. In an affidavit submitted to this Court in opposition to the motion for summary judgment, Sepanski alleges that Honeck mocked men, and especially Sepanski, "essentially daily." (Sepanski Aff., ¶ 6; Docket No. 35-1.) But at his deposition, Sepanski recounted only three additional specific incidents of alleged harassment.

In February of 2006, during a morning meeting, Honeck called men "worthless" and blamed a mess in the break room on Sepanski because he was a man. "Typical men, " she said, "make a mess." From that day on, according to Sepanski, she "stayed on [his] case about it." (Sepanski Dep., 18:5-13, 22; Docket No. 27-4.)

Shortly after that incident, Honeck called men and cats "the worst thing God created." ( Id., 19: 2-5.)

Last, on Wednesday, March 8, 2006, Sepanski returned to the office at about 4:30 p.m. and before he was "even inside the door, [Honeck] started screaming at me about men." She said, "men can get away with anything, right, Marc." ( Id., 23:15-20.) At this point, Sepanski had "had enough, " and voiced complaints about Honeck to Joseph Stein, the regional director and head of the Jani-King of Buffalo office. Id . This was the third time that Sepanski complained about Honeck. Previously, he twice complained to Kimberly Hout, the office manager, and, as a result of these conversations, Honeck had apparently been reprimanded. (Defs.' Stmnt., ¶ 27.)

From there, the course of events take a strange, and largely unexplained turn. After complaining about Honeck, Stein told Sepanski to take Thursday and Friday of that week off and that Sepanski should contact him on Monday. In the interim, Stein would handle the problem with Honeck. (Sepanski Dep., 31:12-15.) Sepanski did as he was instructed, but when he called on Monday, Stein did not answer the phone. It turns out that, in the course of just a couple of days, Stein had fired Honeck and shortly after that, Jimmy Petrick, the executive director for Jani-King International, Inc., the parent of Jani-King, Inc., flew in from Texas and fired Joe Stein for "lack of performance of growing revenue and selling franchises." (Petrick Dep., 27:11; Petrick Aff., ¶ 2; Docket No. 8-2.)

At some point around this time, Petrick instructed Hout, the office manager, and her daughter, Corine Consiglio, another Jani-King of Buffalo employee, [2] to locate Sepanski. According to Petrick, after placing several calls and visiting his house, they were unable to do so. (Petrick Dep., 17:11-18.) Thus, believing that Sepanski was absent from work without leave, Petrick fired Sepanski. ( Id., 16:16-20.)[3] Oddly, Sepanski learned of his firing through Hout, who told him that Petrick did not "want [him] back in the building." Sepanski took Hout at her word - he never inquired any further - and met her at a local McDonald's to give back his office keys and a company cell phone. (Sepanski Dep., 33:15-20.)

In an even stranger twist, Hout compiled the papers documenting Sepanski's removal from the company and, in the "Exit Report, " marked the "type of separation" as "resignation." Petrick signed the form, but crossed out the box indicating "without reservation, " which Hout had checked, and instead checked the box indicating "with some reservation" because "he had never met Mr. Sepanski." (Petrick Dep., 19:22.) Petrick goes on to explain, "If he would have just come in and talked, I would have filled out the form differently, probably." ( Id., 20:3-4.) Sepanski sharply disputes any characterization of his removal as a "resignation"; he believes he was fired.

Stranger still, Petrick then reinstated Honeck sometime during the next week (id., 29:12-13), only to fire her several months later because of her "negative attitude towards several franchise owners, " (id., 29:23).

Sepanski never again worked for Jani-King. On January 3, 2007, he filed a claim of discrimination with the Equal Employment Opportunity Commission ("EEOC") against Jani-King, Inc. Subsequently, on March 23, 2010, the EEOC mailed Sepanski his "right-to-sue" letter, authorizing Sepanski to bring this suit in federal court.

B. Procedural History

Sepanski filed a complaint with this Court on June 21, 2010. (Docket No. 1.) On November 22, 2010, Defendants moved to dismiss the case or transfer it to a district court in Texas. After full briefing, this Court denied that motion on September 30, 2011. (Docket No. 16.) Defendants then answered the complaint, the parties conducted discovery, and on December 12, 2012, Defendants' filed the motion for summary judgment. After Sepanski filed his responsive papers, Defendants moved to strike several aspects of those papers on February 20, 2013. Briefing on that motion concluded on March 21, 2013, at which time this Court took both motions under consideration.


A. Defendants' Motion to Strike

One aspect of Defendants' motion to strike is intertwined with their motion for summary judgment, and, as such, it will be addressed in connection with that motion. But another component of the motion to strike requires immediate discussion.

In his response to Defendants' motion for summary judgment, Sepanski filed three letters authored by Kimberly Hout, Joseph Stein, and Corine Consiglio, all of whom worked with Sepanski during the relevant time period. According to Sepanski, these letters were drafted to support his application for unemployment benefits. They are, however, merely signed by a notary - they are neither sworn, nor are their contents stated to be true and correct, nor are they stated under penalty of perjury. For this reason, they do not constitute competent evidence. See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham , 185 F.3d 61, 65-66 (2d Cir.1999) (noting that the Second Circuit has "held that a district court should disregard an unsworn letter in ruling on a summary judgment motion"); Nissho-Iwai Am. Corp. v. Kline , 845 F.2d 1300, 1306 (5th Cir. 1988); Marino v. Jonke, No. 11 CV 430 VB, 2012 WL 1871623, at *4 (S.D.N.Y. Mar. 30, 2012); see also DeMars v. O'Flynn , 287 F.Supp.2d 230, 242 (W.D.N.Y. 2003) (quoting Flowers v. Abex Corp. , 580 F.Supp. 1230, 1233 n. 2 (N.D. Ill. 1984)) ("Merely notarizing the signature does not transform a letter into an affidavit"). Sepanski urges this Court to accept the letters because lying to the New York State Unemployment Insurance Board "could constitute fraud." (Pl.'s Mem. in response to Motion to Strike, at 5; Docket No. 42.) But he provides no authority for the proposition that the body to which ...

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