OPINION AND ORDER
I. INTRODUCTION
Plaintiffs Rick Wells, Judy Humes, and Vern Smith bring this suit against their *795 former employer, Defendant EMF Corp., under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. 1 (Docket # 1.) Plaintiffs assert that EMF discriminated against them due to their age when it terminated their employment in a purported reduction in force (“RIF”).
On August 24, 2010, EMF moved for summary judgment on Plaintiffs’ claims. (Docket # 18.) Plaintiffs belatedly responded on September 27, 2010 (Docket # 28), and EMF replied on October 4, 2010 (Docket # 31). Also pending is a motion to strike filed by EMF, seeking to strike Plaintiffs’ untimely response to the summary judgment motion, as well as certain evidence Plaintiffs produced with their response. (Docket # 28.) Plaintiffs responded to EMF’s motion to strike on October 18, 2010 (Docket # 34), and EMF replied on October 28, 2010 (Docket # 37).
In turn, on October 18, 2010, Plaintiffs filed motions to (1) strike certain evidence EMF submitted in support of its summary judgment motion (Docket # 33); (2) amend their admissions (Docket # 35); and (3) amend their response brief to the summary judgment motion (Docket # 32). EMF responded to the first two motions on October 28, 2010 (Docket # 38, 39); Plaintiffs, however, failed to reply, and the time to do so has since passed. EMF did not file a response to Plaintiffs’ motion to amend their response brief to the summary judgment motion, and the time to do so has also expired.
Because EMF’s motion for summary judgment is affected, at least in part, by the motions to strike and motions to amend, the Court will first turn to those motions. For the reasons provided, Plaintiffs’ motion to amend admissions will be GRANTED, but their motion to strike and motion to amend response brief will be DENIED. EMF’s motion to strike will be GRANTED, and its motion for summary judgment will be GRANTED with respect to Wells and Smith but DENIED as to Humes.
II. PLAINTIFFS’ MOTION TO AMEND ADMISSIONS
A. Background
EMF served its first set of discovery requests, which includes interrogatories, document requests, and requests for admissions, to Plaintiffs on June 8, 2010. (Bartrom Aff. ¶ 2, Ex. A.) The responses to the discovery were due on July 12, 2010, but Plaintiffs failed to meet this deadline. (Bartrom Aff. ¶ 3, Ex. A.)
On August 2, 2010, EMF sent a letter to Plaintiffs inquiring about the status of the overdue discovery responses. (Bartrom Aff. ¶ 4, Ex. B.) Plaintiffs’ counsel responded via letter two days later and requested a 45-day extension, explaining that she had yet to begin drafting the responses because she had misplaced the documents. (Bartrom Aff. ¶ 5, Ex. C.) On August 9, 2010, EMF, by letter, provided Plaintiffs with a 21-day extension with respect to the interrogatories and document requests; it did not, however, provide an extension for the requests for admission. (Bartrom Aff. ¶ 6, Ex. D.)
On August 13, 2010, EMF sent a letter to Plaintiffs stating that the time for them to respond to the requests for admission had passed and that EMF deemed those requests to be admitted by operation of law. (Bartrom Aff. ¶ 7, Ex. E.) It also informed Plaintiffs that it would soon be filing a motion for summary judgment. (Bartrom Aff. ¶ 7, Ex. E.) Plaintiffs did not *796 respond to EMF's August 13th letter, and on August 24, 2010, EMF filed its motion for summary judgment. (Docket # 18.)
On September 27, 2010, Plaintiffs belatedly filed their response to EMF’s summary judgment motion, together with their discovery responses. (Docket # 22-25.) On October 18, 2010, Plaintiffs moved to amend the deemed admissions. (Docket #35.)
B. Applicable Law
Federal Rule of Civil Procedure 36 states that “[a] party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of [Federal Rule of Civil Procedure] 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents.” It further provides that “[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Fed.R.Civ.P. 36(a)(3).
“A matter admitted under [Rule 36] is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.” Fed.R.Civ.P. 36(b);
see Matthews v. Homecoming Fin. Network,
No. 03 C 3115,
C. Discussion
By failing to timely respond, Plaintiffs have technically admitted every allegation set forth in EMF’s requests for admission. Wishing to avoid this result, Plaintiffs seek to withdraw all such admissions and amend their responses in the form as attached to their response brief.
As articulated above, “the court may, in its discretion, permit a withdrawal if (1) preserving the admission would effectively eliminate any presentation of the merits of the case, and (2) the party who obtained the admission will not be prejudiced by a withdrawal or amendment.”
Decor Grates,
As for the second prong, EMF has not demonstrated that it will be prejudiced if the admissions are withdrawn. “Having to prove one’s case on the merits is not the type of prejudice that satisfies Rule 36(b).”
Van Hoose,
Here, EMF has not alleged, much less established, that it will be prejudiced by the withdrawal of the admissions. Nor is any prejudice apparent in the record, as discovery is open through February 11, 2011. {See Docket # 16.) Consequently, Plaintiffs’ motion to amend admissions will be GRANTED.
III. PLAINTIFFS’ MOTION TO AMEND RESPONSE BRIEF AND EMF’S MOTION TO STRIKE PLAINTIFFS’ RESPONSE BRIEF
EMF seeks to strike Plaintiffs’ response brief to the summary judgment motion, together with its supporting appendix, arguing that it is untimely, procedurally and substantively deficient, and incorporates inadmissible evidence. (Docket # 28.) Plaintiffs, however, contend that their response was timely filed and seek leave to amend it to correct some of the purported procedural and substantive deficiencies. (Docket # 34.)
Contrary to their assertion, Plaintiffs’ response brief was untimely. EMF filed its motion for summary judgment on August 24, 2010. (Docket # 18.) Under Local Rule 56.1(a), Plaintiffs had twenty-eight days within which to file a response, plus three additional days for electronic delivery. See Fed.R.Civ.P. 6(a), (d), 5(b)(2)(E). Therefore, Plaintiffs’ response was due on Friday, September 24, 2010. Plaintiffs did not file their response until Monday, September 27, 2010, believing, albeit mistakenly, that they had thirty days, rather than twenty-eight days, under Local Rule 56.1(a) to respond.
Of course, “[u]nder Federal Rule of Civil Procedure 6(b), on a party’s motion the court can extend the time for filing a reply after a deadline has expired if the party failed to act because of excusable neglect.”
Goodman v. Clark,
No. 2:09 CV 355,
Furthermore, Plaintiffs’ proposed amended response brief, which is just over three pages in length, fails to include in accordance with Local Rule 56.1(a) a ‘“Statement of Genuine Issues,’ setting forth, with appropriate citations to discovery responses, affidavits, depositions, or other admissible evidence all material facts as to which it is contended there exists a genuine issue necessary to be litigated.” In fact, Plaintiffs’ response brief contains not a single citation to the discovery re *798 sponses submitted with it. Therefore, Plaintiffs’ attempt to remedy the various deficits in their brief still falls short.
In sum, Plaintiffs’ response brief is untimely, they do not seek to extend the deadline under Rule 6(b) due to excusable neglect, and even their proposed amended brief would not cure the deficiencies under Local Rule 56.1(a). As a result, EMF’s motion to strike will be GRANTED, and Plaintiffs’ motion to amend response brief will be DENIED. 2
IV. PLAINTIFFS’ MOTION TO STRIKE
In turn, Plaintiffs seek to strike certain evidence EMF filed in support of its motion for summary judgment. (Docket # 33.) Specifically, Plaintiffs seek to strike (1) the Employee Termination Reports attached to the Affidavit of Howard Sanders because the Reports contain their social security numbers; and (2) certain correspondence between the parties referencing settlement negotiations, which Plaintiffs claim is inadmissible under Federal Rule of Evidence 408.
Indeed, Federal Rule of Civil Procedure 5.2(a) states that the social security numbers of parties and non-parties should be redacted to include only the final four digits. However, Rule 5.2(h) further provides that “[a] person waives the protection of Rule 5.2(a) as to the person’s own information by filing it without redaction and not under seal.” As EMF emphasizes, the Termination Reports that Plaintiffs seek to strike from Sanders’s Affidavit were already filed by Plaintiffs as an attachment to their complaint. (Compare Sanders Aff. Exs. A-C, with Docket # 1.) Thus, Plaintiffs have waived the protection of Rule 5.2(a) with respect to their social security numbers, and consequently the Reports will not be stricken from Sanders’s Affidavit.
As to the correspondence between the parties referencing settlement negotiations, it too will survive. EMF emphasizes that it discloses these documents not to prove liability, but to demonstrate Plaintiffs’ purported pattern of untimely submissions in this case. Indeed, proving a pattern of untimely submissions is not a prohibited use of settlement negotiations under Federal Rule of Evidence 408.
See, e.g., 21 srl v. Newegg Inc.,
No. 09-cv-6590,
Having now disposed of the parties’ respective motions to strike and the motions to amend, the Court will turn to EMF’s motion for summary judgment.
V. EMF’S MOTION FOR SUMMARY JUDGMENT
A. Factual Background 3
EMF is a small business headquartered in Angola, Indiana, with manufacturing facilities in Indiana, Kentucky, and Missis *799 sippi. (Sanders Aff. ¶ 3.) It manufactures custom wiring harnesses, fluorescent lamp-holders, and specialty molded connectors for a variety of industries, including appliance, vending, refrigeration, lighting, motors, controls, air conditioning, heating, and automotive. (Sanders Aff. ¶ 3.)
In 2007, EMF began to experience dire economic circumstances, and it closed one of its Mississippi plants by the end of the year. (Sanders Aff. ¶¶ 5, 6.) From 2007 to 2008, EMF lost $1,000,000 in business, and from 2008 to 2009, an additional $4,000,000 in business. (Sanders Aff. ¶ 6.) In 2009, EMF lost a major automotive client that accounted for approximately 13% of its total sales. (Sanders Aff. ¶ 6.)
As a result, beginning in 2007, EMF significantly scaled back its manufacturing and office operations by downsizing approximately 120 employees through a company-wide RIF. (Sanders Aff. ¶¶ 5, 7.) EMF restructured its office staff as a result of the reduction in the number of manufacturing employees it supported and the decline in business. (Sanders Aff. ¶ 7.) The RIF included employees of all ages. (Sanders Aff. ¶ 7.) In fact, approximately 57% of the downsized employees were under 40 years old. (Sanders Aff. ¶ 8.) Conversely, 77% of the employees who remained employed after the downsizing were over 40 years old. (Sanders Aff. ¶ 8.)
Plaintiff Rick Wells, Purchasing Manager, was hired by EMF in April 1986 and was terminated on September 29, 2008, “due to a down turn in business.” (Sanders Aff. ¶ 9, Ex. A.) He was 58 years old at the time of his termination. (Sanders Aff. ¶ 9.) EMF’s “Employee Termination Report” reflected that it would rehire Wells and would recommend him “without reservation”. (Sanders Aff. Ex. A.) An evaluation on the Termination Report indicated that EMF rated Wells’s performance as “good” in all categories. (Sanders Aff. Ex. A.) Following his discharge, Wells’s job duties were absorbed by Buyer David Daughtery, who was 41 years old, and IT Manager Kane Pylely, who was 51 years old. (Sanders Aff. ¶ 10.)
Plaintiff Vern Smith, Plant Manager, was hired by EMF in April 1992 and was terminated in October 2008 “due to a down turn in business.” (Sanders Aff. ¶ 13, Ex. C.) Smith was 61 years old at the time of his termination. (Sanders Aff. ¶ 13.) EMF offered Smith a similar job at EMF’s Mississippi facility in lieu of termination. (Sanders Aff. ¶ 15.) The job would have allowed Smith to work part of the year in Mississippi and part of the year in Indiana, and EMF would have paid his travel expenses. (Sanders Aff. ¶ 15.) Smith rejected EMF’s offer. (Sanders Aff. ¶ 15.) EMF’s “Employee Termination Report” stated that it would not rehire Smith. (Sanders Aff. Ex. C.) An evaluation on the Termination Report indicated that EMF rated Smith’s performance as “good” in attendance, job knowledge, and quality of work; “fair” in cooperation; and “satisfactory” in initiative. (Sanders Aff. Ex. C.) Following his discharge, Smith’s job duties were absorbed by Manager Judy Hicks, who was 52 years old, and Vice President Howard Sanders, who was 62 years old. (Sanders Aff. ¶ 14.)
Plaintiff Judy Humes, Plant Clerk, was hired by EMF in January 1983 and was terminated on October 10, 2008, “due to a down turn in business.” (Sanders Aff. ¶ 11, Ex. B.) She was 62 years old at the time of her termination. (Sanders Aff. ¶ 11.) EMF’s “Employee Termination Report” stated that it would rehire Humes and would recommend her “without reservation.” (Sanders Aff. Ex. B.) An evaluation on the Termination Report indicated that EMF rated Humes’s performance as “good” in all categories. (Sanders Aff. Ex. B.) Following her discharge, Humes’s job *800 duties were absorbed by Quality Coordinator Tami Kipfer, who was 50 years old. (Sanders Aff. ¶ 12.)
Plaintiffs filed the instant suit under the ADEA on March 9, 2010, alleging that EMF discriminated against them on the basis of their age when it terminated their employment. (Docket # 1.)
B. Standard of Review
Summary judgment may be granted only if there are no disputed genuine issues of material fact. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003). When ruling on a motion for summary judgment, a court “may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Id. The only task in ruling on a motion for summary judgment is “to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge, 24 F.3d at 920. If the evidence is such that a reasonable factfinder could return a verdict in favor of the nonmoving party, summary judgment may not be granted. Payne, 337 F.3d at 770. A court must construe the record in the light most favorable to the nonmoving party and avoid “the temptation to decide which party’s version of the facts is more likely true,” as “summary judgment cannot be used to resolve swearing contests between litigants.” Id. However, “a party opposing summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for trial.” Id. at 771.
C. Discussion
1. Applicable Law
The ADEA “prohibits employers from firing workers who are 40 or older on the basis of their age.”
Martino v. MCI Commc’ns Servs., Inc.,
Generally, to establish a
prima facie
ease of age discrimination under the indirect method in a traditional RIF, a plaintiff must show that: (1) he is 40 or older, (2) his performance met the company’s legitimate expectations, (3) despite his performance he was subject to an adverse employment action, and (4) the company treated similarly situated employees outside of the protected class more favorably.
Martino,
The Seventh Circuit Court of Appeals, however, has “long recognized that the
[McDonnell Douglas]
test is not inflexible and is appropriately adapted where necessary to reflect more fairly and accurately the underlying reality of the workplace.”
Merillat v. Metal Spinners, Inc.,
The Seventh Circuit has “explained that the determinative factor in deciding whether the mini-RIF variation applies is whether the discharged employee’s duties were absorbed by an existing employee or eliminated, not the number of employees let go.”
Petts,
2. Analysis
Here, EMF makes two missteps when arguing its motion for summary judgment. First, although it admits that Plaintiffs’ job duties were absorbed by other employees, it applies the traditional RIF
McDonnell Douglas
test rather than the mini-RIF variation. Second, EMF for the most part fails to acknowledge that even though each Plaintiffs job duties were absorbed by an employee(s) over 40 years old, age discrimination may still occur if the employee who absorbed the duties is “substantially younger” than Plaintiff.
See Balderston,
Having highlighted these key points, the Court will now analyze each Plaintiffs claim in turn. When applying the more appropriate mini-RIF test and including those employees “substantially younger” than each Plaintiff in the analysis, only *802 Humes’s age discrimination claim will survive summary judgment.
a. Rick Wells
Wells easily satisfies the first three prongs of his prima facie case. He was 58 years old when he was terminated from his position as Purchase Manager, and EMF reflected on his Termination Report that his performance was “good” and that it would rehire him and recommend him “without reservation”.
Wells, however, falters at the fourth prong. The record represents that Wells’s job duties were absorbed by Daughtery, who was 41 years old, and Pylely, who was 51 years old — thus only one of the two employees who absorbed Wells’s job duties was “substantially younger” than Wells.
Balderston,
To satisfy the fourth prong of his
prima facie
case, Wells “must show that [his] duties, at the very least, were absorbed
mostly
by employees not in [his] protected class.”
Knowles v. Trans Union LLC,
No. 03 C 4952,
In short, “[s]ummary judgment is the ‘put up or shut up’ moment in a lawsuit.”
Harney v. Speedway SuperAmerica, LLC,
*803 b. Vern Smith
Smith easily satisfies the first and third prongs of his prima facie case, as he was 61 years old at the time he was terminated from his position as a Plant Manager. His prima facie case, however, falters on the second and fourth prongs.
First, the record is not particularly persuasive that Smith’s performance met EMF’s legitimate expectations. EMF stated on his Termination Report that it would not rehire him and, while it rated his performance as “good” in three areas, it perceived his cooperation as “fair” and his initiative “satisfactory”.
In any event, Smith cannot establish the fourth prong of his
prima facie
case. The record reflects that his job duties were absorbed by Hicks, who was 52 years old, and Sanders, who was 62 years old. Thus, neither of the two employees who absorbed Smiths’s job duties were “substantially younger” than Smith, which is fatal to his claim.
5
Balderston,
Therefore, because Smith cannot establish a prima facie case of age discrimination, his claim will not survive summary judgment. 6
c. Judy Humes
In contrast to Wells and Smith, Humes easily establishes a
prima facie
case of age discrimination. She was 62 years old when EMF terminated her from the Plant Clerk position; EMF reflected on her Termination Report that her performance was “good” and that it would rehire her and recommend her “without reservation”; and her duties were absorbed by Kipfer, who at 50 years old was “substantially younger” than Humes.
Balderston,
Since Humes successfully establishes a
prima facie
case, the burden of production then shifts to EMF to provide a legitimate, nondiscriminatory reason for the challenged employment action.
McDonnell Douglas,
Significantly, however, the record is devoid of any reason
why
EMF included Humes in the purported RIF.
See Paluck,
In short, on this record EMF has not presented a legitimate, non-discriminatory reason for terminating Humes — an employee who undisputably had good performance and significant seniority — in the purported RIF. As a result, EMF’s motion for summary judgment with respect to Humes will be DENIED.
VI. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment (Docket # 18) is GRANTED with respect to Plaintiffs Rick Wells and Vern Smith but DENIED as to Plaintiff Judy Humes. 7 Defendant’s motion to strike (Docket # 28) is GRANTED. Plaintiffs’ motion to strike (Docket #33) and motion to amend response brief (Docket # 32) are both DENIED, but their motion to amend admissions (Docket # 35) is GRANTED.
SO ORDERED.
Notes
. Accordingly, subject matter jurisdiction arises under 28 U.S.C. § 1331. Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
. In any event, even if Plaintiffs’ cursory response brief was not stricken, the Court’s ruling would remain the same. In the response brief (Docket # 23, 32), Plaintiffs cite only to evidence submitted by EMF and spend much of the three-pages arguing that its admissions should be amended — relief that the Court does indeed ultimately afford to Plaintiffs.
. Because Plaintiffs did not submit a factual statement called for by Local Rule 56.1, they have conceded EMF's version of the facts as set forth in its memorandum supporting summary judgment.
See
N.D. Ind. L.R. 56.1(b);
Waldridge v. Am. Hoechst Corp.,
. Notably, Wells’s claim would fare no better under the traditional RIF test, which requires that a plaintiff establish as the fourth prong that "similarly situated employees outside the protected class were treated more favorably.”
Balderston,
. “Where a plaintiff 'just misses the 10-year mark,’ he must present evidence that the employer 'considered age to be a significant factor.’ ”
Majewski v. Schindler Elevator Corp.,
No. 07 C 276,
. Like Wells, Smith's claim would fail even if the traditional RIF test was applied, as Smith has presented no evidence that a substantially younger employee “similarly situated with respect to [his] qualifications, experience, skills, or abilities” was treated more favorably.
Balderston,
. The Court realizes that Defendant's motion for summary judgment was filed well in advance of the dispositive motion deadline, primarily as a result of Plaintiffs' non-responsiveness to its request for admissions. Accordingly, Defendant is GRANTED leave to file a second motion for summary judgment with respect to Humes’s claim on or before March 11, 2011. (See Docket #16.)