Kidd v. Mando American Corporation

Filing 76

MEMORANDUM OPINION AND ORDER that the 44 Motion for Summary Judgment as remanded to this court is hereby ORDERED GRANTED as further set out in the opinion and order. A separate judgment will be entered in favor of Mando American Corporation, and against Leanne Renee Kidd. Signed by Honorable Judge W. Harold Albritton, III on 12/20/2013. (dmn, ) (Main Document 76 replaced on 12/20/2013 due to a typo in Mando American Corporation's name.) (dmn, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

LEANNE RENEE KIDD,
Plaintiff,
v.
MANDO AMERICAN CORPORATION,
Defendant.

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) CIVIL ACTION NO. 3:10-cv-871-WHA
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(WO)
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MEMORANDUM OPINION AND ORDER
I. FACTS AND PROCEDURAL HISTORY
This case is before the court on remand from the Eleventh Circuit Court of Appeals. The
Defendant, Mando American Corporation (“Mando”), filed a Motion for Summary Judgment on
January 27, 2012 (Doc. # 44), which this court granted in full as to the federal claims, and
declined to exercise supplemental jurisdiction over the state law claims (Doc. #58). The
Plaintiff, Leanne Renee Kidd (“Kidd”), appealed.
The relevant facts are more fully set out in the Eleventh Circuit’s per curiam opinion
(Doc. #74). Essentially, the case involves an employment dispute. Kidd is a non-Korean
employee of Mando who claims that another person, Byong Woo Seo (“Seo”), was selected for a
position with Mando instead of her because he was Korean. In claiming discrimination, Kidd
relies in part on a remark allegedly made by one of Mando’s human resource managers, Jerry
Rolison (“Rolison”). Kidd states that Rolison told her that Mando’s management refused to
consider American candidates for the position.

On appeal, the Eleventh Circuit Court of Appeals vacated this court’s grant of summary
judgment in favor of Mando regarding the claim for discrimination in failure to promote, and
affirmed the court’s grant of summary judgment in all other respects. (Doc. #74).
This court was instructed “to determine whether Kidd’s testimony about Rolison’s
alleged statements is admissible and, if it is, to reconsider Mando’s Motion for Summary
Judgment in light of that determination.” (Doc. #74 at p. 30).
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations, stipulations

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(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.”
To avoid summary judgment, the nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the non-movant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
III. DISCUSSION
The Eleventh Circuit Court of Appeals has concluded that Kidd sufficiently established a
prima facie case of discrimination in failure to promote. (Doc. #74 at p.14). The Eleventh
Circuit also concluded that the reason articulated by Mando for the selection of Seo, that Seo had
“auditing experience–experience Mando’s accounting department needed and experience the prescreened candidates and Kidd did not have,” was objectively reasonable on its face. (Doc. #74 at
p.15).
The Eleventh Circuit has directed this court to reconsider whether Kidd has established
pretext as to the articulated reason by presenting evidence that she was told by Rolison that the
decisionmakers “refused to even consider an American candidate.” (Doc. #74 at p.19) (citing
Kidd’s testimony in her deposition, “Jerry Rolison told me himself that he had tried to get four
Americans to be considered in the position [sic] and he was denied, they were not even allowed
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to interview.” (Doc. #46-1 at p. 346: 7-12)). This court previously determined that Rolison was
not the decisionmaker, and therefore, any comment by him was irrelevant because he had no role
in the final decision as to whom to hire.
The Eleventh Circuit held that the statement by Rolison that decisionmakers “refused to
even consider an American candidate” is subject to two interpretations: Rolison’s opinion
speaking as an agent of Mando, or alternatively, Rolison’s restatement of what decisionmakers
said. (Doc. #74 at p.20). The Eleventh Circuit reasoned that if Rolison participated in the
decision to hire Seo, his remark could be admissible under Rule 801(d)(2)(D). The Eleventh
Circuit directed that if Kidd seeks to introduce Rolison’s remark under Rule 801(d)(2)(D), she
needs to show that Rolison participated in Mando’s decision to hire Seo. The Eleventh Circuit
concluded that it is unclear from the record whether Rolison’s role in the decisionmaking process
was narrow, involving only the gathering of resumes, through which he would not have been
acting as an agent, or whether he had a larger role, which could cause his statement to be an
admission by Mando. (Doc. #74 at p.26).
The Eleventh Circuit also reasoned that Rolison’s remark might be admissible as an
admission by a party opponent absent a valid hearsay objection, but that the record is unclear as
to whether Rolison’s statement was one of belief, or was something he heard. (Doc. #74 at p. 2021).
Rolison’s affidavit states that he was asked to gather resumes of candidates for the
position, and did so. Rolison requested that another employee verify the background
information, interest level, and requested salary for the candidates, but before they “moved
forward to schedule any interviews,” he learned “that Mr. Seo was going to be offered the
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position.” (Doc. #47-3 at p.7). Kidd has also testified that Rolison said he offered the resumes
for consideration, but no evidence in the record has been pointed to which would demonstrate
that Rolison had input into the process of hiring Seo beyond gathering resumes and offering them
for consideration, distinguishing this case from those in which non-decisionmakers’ opinions
were admissible because they “reflected some kind of participation in the employment decision
or policy of the employer.” Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005).
As to the second basis of possible admissibility identified by the Eleventh Circuit in this
case, although the court must accept Kidd’s testimony that Rolison told her no Americans were
considered for the position, Kidd does not state in that testimony that Rolison said he was told
that no Americans were considered. Rolison unequivocally states in his affidavit “I was never
told this,” in reference to the statement that no Americans were considered. (Doc. #47-3 at p.7).
The only evidence as to what Rolison was told, rather than what he believed, to which the court
has been pointed in Kidd’s deposition is her statement that Rolison told her that he “tried to get
four Americans considered for the position to replace and they said, no.” (Doc. #46-1 at p.
33:16-17). This evidence is not sufficient to draw a reasonable inference that Rolison was
repeating a statement from Mando officials that “no Americans were considered,” only that
Mando officials would not consider the four requested by him. Therefore, this court also
concludes that there is insufficient evidence to support a finding that Rolison’s statement is
admissible as a statement by a party opponent.
In short, upon review of the materials pointed to in briefs in support of and in opposition
to summary judgment, the court cannot conclude that either of the bases of admissibility of
Rolison’s statement which have been identified by the Eleventh Circuit in this case are supported
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by the summary judgment record. Summary judgment is, therefore, due to be GRANTED for
failure to establish pretext with regard to the claims remanded for reconsideration by this court.
The Eleventh Circuit’s discussion of possible bases for admissibility of Rolison’s
statement, however, could indicate that there are sufficient questions of fact which must be
determined by a trier of fact before admissibility of Rolison’s statement can be decided. If that
is the case, the court assumes, for purposes of alternatively analyzing the Motion for Summary
Judgment, that Kidd’s statement of Rolison’s statement to her is admissible.
The Eleventh Circuit has determined that if Rolison’s statement is admissible, there is a
question of fact sufficient to establish pretext. For purposes of the Motion for Summary
Judgment, however, that is not the end of inquiry, because the mere fact that such a question
exists does not rule out summary judgment. “A plaintiff's prima facie case, combined with
sufficient evidence to find that the employer's asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) (emphasis added); see also Chapman v. AI Transport, 229
F.2d 1012, 1025 n.11 (11th Cir. 2000) (stating that “[i]f the plaintiff does proffer sufficient
evidence that the defendant's stated reasons are pretextual, the plaintiff still may not be entitled to
take his case to a jury.”). The propriety of summary judgment depends on several factors, which
include “the strength of the plaintiff's prima facie case, the probative value of the proof that the
employer's explanation is false, and any other evidence that supports the employer's case and that
properly may be considered.” Reeves, 530 U.S. at 148.
Here, the prima facie case evidence is not strong. Because the position at issue was not
posted, Kidd never had to present evidence that she possessed the required experience. (Doc.
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#74 at p.14). Furthermore, as the Eleventh Circuit accepted, Kidd did not demonstrate that she
was more qualified than Seo, “much less his equal.” (Doc. #74 at p.18). Given the relative
weakness of the prima facie case, the strength of the evidence of the articulated reason for the
hiring of Seo based on his qualifications, and the weakness of the discriminatory evidence in the
form of a statement by a non-decisionmaker, the court concludes that, even if evidence of
Rolison’s statement is admissible, summary judgment is due to be GRANTED on this alternative
basis.
IV. CONCLUSION
For the reasons discussed, the Motion for Summary Judgment as remanded to this court is
hereby ORDERED GRANTED. A separate judgment will be entered in favor of Mando
American Corporation, and against Leanne Renee Kidd.

Done this 20th day of December, 2013.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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