Nalls v. Corizon Health, Inc.
Filing
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MEMORANDUM OPINION AND ORDER: It is hereby ORDERED as follows: 1. The Plaintiff's Motions to Strike (Doc. # 20 , 23 ) are DENIED. Signed by Honorable Judge W. Harold Albritton, III on 8/10/2017. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WILMA NALLS,
Plaintiff,
v.
CORIZON HEALTH, INC.,
Defendant.
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Civil Action No.: 2:16-cv-391-WHA-SRW
(WO)
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This cause is before the court on the Plaintiff’s Motions to Strike (Doc. # 20, 23) certain
paragraphs from affidavits submitted by Jessica Duffell (“Duffell”) in support of the Defendant’s
Motion for Summary Judgment, together with briefing in support of and in opposition to the
Motions. For the reasons to be discussed, the Plaintiff’s Motions to Strike are due to be
DENIED.
II. DISCUSSION
This case arises out of the termination of Plaintiff, Wilma Nalls, who was previously
employed by Defendant Corizon Health, Inc. In her Complaint, Nalls alleges various claims for
race and age discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.,
respectively. Specifically, Nalls brings claims of hostile work environment (Count I), disparate
treatment (Count II), age discrimination (Count III); and retaliation (Count V). (Doc. # 1).
On June 5, 2017, Corizon filed a Motion for Summary Judgment (Doc. # 14), submitting
various exhibits as evidence in support of its Motion, including an affidavit submitted by Duffell,
Nalls’s direct supervisor (Doc. # 14-7). Nalls later responded to the Motion (Doc. # 18) and
Corizon replied (Doc. # 22). In support of Corizon’s reply, Corizon submitted a supplemental
affidavit from Duffell (Doc. # 22-1). Nalls has filed two Motions to Strike seeking to exclude
certain portions of each of Duffell’s affidavits. The court will examine each of Nalls’s objections
as they relate to each affidavit, in turn.
A. Duffell’s First Affidavit (Doc. # 14-7)
As to Nalls’s first Motion, Nalls seeks to strike paragraphs 8, 10, 12, 13, 16, 17, 20, and
30 from Duffell’s first affidavit (Doc. # 14-7).
First, Nalls claims that paragraph 8 is contradictory to her deposition testimony, and is
therefore due to be stricken.1 Paragraph 8 states:
8. As the HAS I did not, and do not, have the ultimate authority to
terminate Ms. Nalls or any other employee of Corizon at the
Bullock Correctional Facility. However, I, as the Health Services
Administrator, and Dorothy Price, as the Director of Nursing
(“DON”), both made the recommendation to the interim Director
of Operations, Peggy Minyard, and Ken Dover, the Vice President
of Operations for Corizon. Thereafter, the recommendation for
termination had to be approved by Human Resources Manager,
Dan Birchfield, at Corizon’s home office in Brentwood,
Tennessee.
(Doc. # 14-7, p. 3, ¶ 8). Nalls claims this statement is contradictory to Duffell’s deposition
testimony, wherein she testified as follows:
Q.
A.
Q.
As a Health Service Administrator, are you in charge of
hiring employees?
I am.
Are you in charge of disciplining employees?
1
Notably, Nalls fails to cite to any authority for the proposition that contradictory sworn
testimony may be stricken. However, it appears that Nalls is arguing that this Paragraph falls
under the “sham affidavit” rule.
2
A.
Q.
A.
Q.
A.
I am.
Are you in charge of firing employees?
I am.
Are you in charge of maintaining a personnel file on
employees?
I am.
(Doc. # 19-7, p. 8:3–8:15).
Courts may strike an affidavit, including any statement contained therein, if it is a “sham
affidavit.” A “sham affidavit” is an affidavit that directly contradicts previous deposition
testimony. See Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). “An affidavit may
only be disregarded as a sham ‘when a party has given clear answers to unambiguous questions
which negate the existence of any genuine issue of material fact . . . [and that party attempts]
thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation,
previously given clear testimony.’” Id. at 954 (quoting Van T. Junkins & Assocs. v. U.S. Indus.,
736 F.2d 656, 657 (11th Cir. 1984) (emphasis added)).
In this case, Nalls’s objection to Paragraph 8 fails because Corizon has given an
explanation for the inherent contradiction found in her deposition testimony. In its Response to
Nalls’s Motion to Strike, Corizon explains that, when viewed in isolation, lines 8:3–8:15 of
Duffell’s deposition seem to suggest that she had the ultimate authority to fire Nalls; however,
Duffell’s later deposition testimony clarifies that, although she had the authority to recommend
Nalls’s termination, she does not have the ultimate authority to fire Nalls; that ultimate authority
rests with Corizon’s upper management and Human Resources Department. See (Doc. # 19-7, p.
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114:2–116:15); See Lane v. Celotex Corp., 782 F.2d 1526, 1533 (11th Cir. 1986) (noting that
when applying the sham affidavit rule, courts must consider “everything in the record” to
determine if there is an inherent inconsistency between the sworn testimonies (quoting Keiser v.
Coliseum Props., Inc., 614 F.2d 406, 410 (5th Cir. 1980) (emphasis original))). Accordingly,
because Corizon has provided a reasonable explanation for Duffell’s inherently contradictory
testimony, the court will not strike Paragraph 8 from her affidavit.2
Next, Nalls moves to strike Paragraphs 10, 12, and 13 from Duffell’s affidavit because,
she argues, they cannot be reduced to admissible form. Rule 56 of the Federal Rules of Civil
Procedure (“FRCP”) states that “[a]n 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 declarant is competent to testify on the matters stated.” Nalls argues that
Paragraphs 10, 12, and 13, all contain hearsay evidence which cannot be presented in admissible
form. Those paragraphs state the following:
10. On May 14, 2015, an Alabama state inmate, Leo Nunez, an
inmate runner for the health care unit, informed the Director of
Nursing, Dorothy Price, that he had been requested to take another
inmate’s blood pressure, David Muse, and wanted to know from
Dorothy Price, RN whether the elevated blood pressure was
normal or abnormal. Inmate Nunez was concerned about the blood
pressure level of inmate/patient Muse. Muse was an inmate housed
in the infirmary at the Bullock County Correctional Facility.
...
2
The court also pauses to note that, to the extent that any contradiction remains between
Duffell’s affidavit and her deposition testimony, Nalls may challenge this testimony on cross
examination.
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12. Dorothy Price questioned inmate Nunez regarding why he had
information about another inmate’s blood pressure. The patient
information should have been HIPAA protected. When asked why
he had Mr. Muse’s blood pressure information, inmate Nunez
informed Dorothy Price that he had taken Mr. Muse’s blood
pressure at the instruction of Nurse Wilma Nalls.
13. When further questioned by Dorothy Price, inmate Nunez
informed Ms. Price that Wilma Nalls, RN, had instructed him and
inmate Vines to take vital signs of the inmates housed in the
infirmary. Those vital signs included blood pressure, temperature,
oxygen saturation levels, and respiratory rates. All of the vital
signs taken by the inmate runners, Nunez and Vines, were vital
signs that only a trained and licensed nurse are authorized to take
and would have been HIPAA protected.
(Doc. # 14-7, p. 4–5, 8, ¶ 10, 12–13, 30).
Corizon responds—and the court agrees—that Paragraphs 10, 12, and 13 are not hearsay,
because they are not offered for the truth of the matters asserted, but rather to show Duffell’s
state of mind or the general effect that Nunez’s statements had on her as a listener. See United
States v. Rivera, 780 F.3d 1084, 1092 (11th Cir. 2015) (“Generally, an out-of-court statement
admitted to show its effect on the hearer is not hearsay.” (citing United States v. Brown, 441 F.3d
1330, 1358 (11th Cir. 2006); United States v. Munoz, 16 F.3d 1116, 1120 (11th Cir. 1994))).
Furthermore, Paragraphs 14 and 15 give the basis for the challenged statements. Specifically,
Corizon contends that Inmate Nunez’s complaint led Duffell and Price to investigate allegations
that Nalls was directing inmates to perform skilled nursing tasks in violation of official Corizon
policy.3 Therefore, the statements referred to in Paragraphs 10, 12, and 13 are not offered for the
3
In addition, the court notes that the substance of Duffell’s testimony in paragraphs 10, 12, and
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truth of the matter asserted, but rather to show the effect that Price’s and Nunez’s statements had
on Duffell—i.e., that Price’s and Nunez’s statements led them to investigate Nalls. For that
reason, these statements are not due to be stricken.
Next, Nalls argues that Paragraphs 16, 17, and 20 should be stricken because they contain
information from Vines that has not been reduced to a statement. Paragraphs 16, 17, and 20 state
the following:
16. Thereafter, Ms. Price and I called inmate Vines into my office
to corroborate the information that Dorothy Price received from
inmate Nunez. Inmate Kevin Vines confirmed that Wilma Nalls,
RN had been ordering the inmate runners to take vital signs
(referenced above) from inmate/patients incarcerated in the
infirmary at the Bullock County Correctional Facility.
17. Inmate Vines also informed us that nurses working in the
health care unit at the Bullock County Correctional Facility were
aware that Wilma Nalls was having the runners take vital signs
from the inmates in the infirmary.
...
20. We requested that Mr. Vines also provide a written statement
but he refused to do so. However, Mr. Vines verbally confirmed
the fact that he had been taking vital signs of the inmates at the
orders of Nurse Nalls.
(Doc. # 14-7, p. 5–6, ¶ 16, 17, 20).
However, again—and as Corizon correctly argues in rebuttal—these statements are not
offered for the truth of the matters asserted; rather they are offered to show Duffell’s state of
mind with respect to why she, and her superior, Price, initiated an investigation into Nalls for
13 are contained in Duffell’s and Price’s deposition testimony, which Nalls does not dispute is
reduced to admissible form for purposes of Rule 56 of the FRCP. Therefore, even if that
evidence were inadmissible, the court need not rely on it for purposes of Corizon’s Motion for
Summary Judgment.
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violating a work rule, which ultimately became the basis for Nalls’s firing, as the court will
discuss more fully in an opinion on Corizon’s Motion for Summary Judgment.
Finally, Nalls also argues that Paragraph 30 should be stricken because it “contains a
conversation with Price about an unsigned document in which neither can be reduced to
admissible evidence at trial.” (Doc. # 20, p. 1).
Both of these arguments are unavailing, however. Paragraph 30 provides:
30. A previous Final Written Recommendation for termination
had been drafted by Dorothy Price on May 4, 2015. (See attached
hereto as Exhibit E). The previous Final Recommendation for
Termination written on May 4, 2015 was also due to abuse of
inmates/patients.
(Doc. # 14-7, p., 8, ¶ 30).
First, to the extent Nalls is arguing that Paragraph 30 references a conversation between
Nalls and Price, and therefore, that it is hearsay due to be stricken, Nalls’s objection is due to be
denied. There is no reference to any conversation between Price and Nalls in Paragraph 30.
Second, to the extent Nalls is arguing that Paragraph 30 should be stricken because it
references a document that is, itself, inadmissible, Nalls’s objection is also due to be denied.
Corizon correctly argues that the Recommendation for Termination document referenced in
Paragraph 30 is not inadmissible, because it falls within the business records exception to the
hearsay rule. Rule 803(6), Records of a Regularly Conducted Activity (otherwise referred to as
the “business records exception”), provides that a statement, or record of an event, is an
exception to the general rule prohibiting hearsay if “(a) the record was made at or near the time
by—or from information transmitted by—someone with knowledge; (b) the record was kept in
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the course of a regularly conducted activity of a business . . . ; (c) making the record was a
regular practice of that activity; (d) all these conditions are shown by the testimony of the
custodian or another qualified witness . . . ; and (e) the opponent does not show that the source of
information or the method or circumstances of preparation indicate a lack of trustworthiness.”
Fed. R. Evid. 803(6). In this case, these elements are satisfied. The Recommendation for
Termination document referenced in Paragraph 30 is a personnel file, submitted by Duffell, who
kept such records in the ordinary course of Corizon’s business. See E.E.O.C. v. Alton Packaging
Corp., 901 F.2d 920, 925–26 (11th Cir. 1990) (noting that personnel files fall within the business
records exception to hearsay). Accordingly, the Recommendation for Termination falls within
the business records exception to the rule against hearsay, and Paragraph 30 will not be stricken
on the basis that it references a document that is inadmissible.
B. Duffell’s Second Affidavit (Doc. # 22-1)
Nalls seeks to strike Duffell’s Second Affidavit (Doc. # 22-1) in whole. Nalls argues that
Duffell’s Second Affidavit must be stricken because it is in direct contradiction to Duffell’s prior
deposition testimony and prior affidavit testimony. (Doc. # 23, p. 1). However, as mentioned
previously, the court will only strike an affidavit that flatly contradicts prior sworn testimony,
unless an unexplainable conflict exists between the testimonies. See Van T. Junkins & Assocs.,
736 F.2d at 657.4
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Corizon argues that the sham affidavit rule does not apply to inconsistencies between affidavits;
rather that it only applies when there is an inconsistency between an affidavit and prior
deposition testimony. The court disagrees. The Eleventh Circuit has applied the sham affidavit
rule to alleged inconsistencies between affidavits and prior deposition testimony as well as
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In this case, Nalls argues that Paragraphs 7, 8, and 9 of Duffell’s Second Affidavit
contradict Paragraph 10 of Duffell’s First Affidavit. Those paragraphs state as follows:
Duffell’s Second Affidavit
7. Prior to May 8, 2015, an inmate runner who worked in the
Infirmary named Leo Nunez verbally reported that he had been
instructed to take an inmate’s blood pressure by Ms. Nalls.
8.
In response to inmate Nunez’s verbal report, Corizon
interviewed and obtained written statements from Nurses Thomley
and McNeil on May 6 and 7, 2015.
9. Prior to May 8, 2015, Corizon also interviewed another inmate
runner named Kevin Vines, who also stated that Ms. Nalls had
instructed him to perform skilled nursing tasks in the Infirmary.
Duffell’s First Affidavit
10. On May 14, 2015, an Alabama state inmate, Leo Nunez, an
inmate runner for the health care unit, informed the Director of
Nursing, Dorothy Price, that he had been requested to take another
inmate’s blood pressure, David Muse, and wanted to know from
Dorothy Price, RN whether the elevated blood pressure was
normal or abnormal. Inmate Nunez was concerned about the blood
pressure level of inmate/patient Muse. Muse was an inmate housed
in the infirmary at the Bullock County Correctional Facility.
(Doc. # 22-1, p. 3, ¶ 7–9); (Doc. # 14-7, p. 4, ¶ 10). Nalls argues these Paragraphs are
contradictory because in Duffell’s Second Affidavit, she claims that Inmate Nunez reported that
Nalls had ordered inmates to perform skilled nursing tasks and that Duffell began her
investigation into allegations of Nalls’s alleged workplace rule violation prior May 8, 2015;
however, in Duffell’s First Affidavit, she states that Inmate Nunez made his report to Duffell on
May 14, 2015, six days after Nalls’s last work day at Corizon.
alleged inconsistencies between affidavits and earlier affidavit testimony. See Santhuff v. Seitz,
385 Fed. App’x. 939, 945 (11th Cir. 2010). Accordingly, the court will not deny Nalls’s Motion
on that basis.
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However, Corizon provides an explanation for the purported contradiction. Corizon
shows that Paragraph 12 of Duffell’s Supplemental Affidavit explains the inherent discrepancy
between her Affidavits. Paragraph 12 of Duffell’s Second Affidavit provides:
The May 14, 2015 date reference in Paragraph 10 of my May 18,
2017 Affidavit is the date on which Nunez wrote and signed his
written statement reiterating the information he had already
provided in his verbal interview; it is not the date on which Nunez
verbally reported that Ms. Nalls instructed him to take an inmate’s
blood pressure.
(Doc. # 22-1, p. 4, ¶ 12). Moreover, Duffell’s deposition testimony clarifies that, first, Inmate
Nunez informed Price that he was performing skilled nursing tasks at the direction of Nalls, and
then, that he submitted a written complaint. Therefore, Corizon has provided a reasonable
explanation for the inherent contradiction—if there was one—for the dates alleged in Duffell’s
affidavits. Accordingly, Duffell’s Second Affidavit is not due to be stricken.
Moreover, like Nalls’s objection to Paragraph 8 from Duffell’s First Affidavit, to the
extent that any contradiction remains between Duffell’s affidavits and or between her affidavits
and her deposition testimony, Nalls may challenge that testimony on cross examination.
III. CONCLUSION
For these reasons, it is hereby ORDERED as follows:
1. The Plaintiff’s Motions to Strike (Doc. # 20, 23) are DENIED.
Done this 10th day of August, 2017.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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