Savage v. RCHP-Florence, LLC
MEMORANDUM OPINION AND ORDER that the motion to strike is GRANTED and it is ORDERED that all references to statements by plaintiff's co-worker "Teresa" shall be striken from the record and Defendant's motion for summary judgment is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/20/2013. (AHI )
2013 Jun-20 AM 10:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
Civil Action No. CV-12-S-09-NW
MEMORANDUM OPINION AND ORDER
Plaintiff, Teresa Savage, asserts claims under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C. § 1981,
against RCHP-Florence, LLC, doing business as Eliza Coffee Memorial Hospital, her
former employer, for race-based discrimination in the termination of her
employment.1 The case currently is before the court on defendant’s motion for
summary judgment2 and defendant’s motion to strike a factual assertion in plaintiff’s
response to its motion for summary judgment.3 Upon consideration of the motions,
briefs, and evidence, the court concludes that the motion to strike should be granted,
and the motion for summary judgment should be denied.
I. STANDARD OF REVIEW
See doc. no. 1 (Complaint).
Doc. no. 15.
Doc. no. 20.
Federal Rule of Civil Procedure 56 provides that a 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). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is
only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis supplied).
See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law”).
II. MOTION TO STRIKE
Plaintiff testified during her deposition that Stephanie Wallace, a Caucasian
Nurse Manager and plaintiff’s second-line supervisor, made racial slurs about
plaintiff’s daughters. Specifically, plaintiff had posted a comment on one daughter’s
Facebook page about both daughters traveling to Hamilton, Alabama, to provide
assistance after the April 27, 2011 tornadoes.
The comment concerned how
plaintiff’s daughters had been treated by the “white people” in Hamilton. A coworker, whom plaintiff could identify only by the first name “Teresa,” told plaintiff
that she heard Stephanie Wallace say, in response to the Facebook post, that “the
niggers shouldn’t have come up there.” Plaintiff never confronted Wallace about that
comment; she never personally heard Wallace use any racial slurs; and she never
heard any other reports from anyone else about Wallace using racial slurs.4 Plaintiff
relies upon that deposition testimony in her response to defendant’s motion for
summary judgment, as evidence that Wallace — who she argues actually made, or at
Defendant’s evidentiary submission, Exhibit 1 (Deposition of Teresa Savage), at 37, 198200.
least heavily influenced, the decision to terminate her employment, and who also
hired a white male as plaintiff’s replacement — harbored racial animus.5
Defendant has moved to strike all references in plaintiff’s response brief to
Wallace calling plaintiff’s daughters “niggers.”6 Defendant asserts that Wallace’s
alleged statement “is double hearsay (i.e., what Wallace allegedly told Teresa (LNU),
and what Teresa allegedly told Plaintiff), and is inadmissible and cannot be
considered for purposes of summary judgment.”7 See Fed. R. Evid. 801(c) (defining
hearsay as “a statement that: (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the
matter asserted in the statement”); Fed. R. Evid. 802 (providing that hearsay is not
admissible unless an exception applies); Fed. R. Civ. P. 56(c)(2) (“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.”).
The court does not agree with defendant that the statement is double hearsay.
Wallace’s alleged statement to “Teresa” — i.e., that plaintiff’s children should not
have gone to Hamilton to assist tornado victims — is not being offered to prove the
truth of the matter asserted — i.e., that the young ladies, in fact, should not have made
See doc. no. 19 (plaintiff’s response brief), at 2, 15, 21.
See doc. no. 20.
Id. ¶ 3.
Instead, that statement is being offered to demonstrate Wallace’s
discriminatory animus. Teresa’s subsequent statement to plaintiff, on the other hand,
is being offered to prove the truth of the matter asserted herein. Teresa told plaintiff
that Wallace said, “the niggers shouldn’t have come up there,” and plaintiff is
attempting to offer the statement to prove that Wallace did, in fact, say that. Teresa’s
statement to plaintiff is, therefore, hearsay.
Implicitly conceding that point, plaintiff argues that the court should “allow the
co-worker’s statement to be considered at summary judgment because there is no
reason to conclude as a matter of law that the evidence could not be presented in
admissible form at trial through the co-worker’s testimony.”8 To the contrary, the
court does not see any reason why the evidence could be presented in admissible form
at trial. Plaintiff has not even identified Teresa’s last name, and defendant represents
that plaintiff did not disclose Teresa as a witness in her initial disclosures.9 It would
be extremely difficult for plaintiff to convince the court to allow her to call a witness
at trial who had not previously been identified in any pre-trial disclosures.
As the statement made by the co-worker identified only as “Teresa” is an out-
Doc. no. 22 (plaintiff’s response to motion to strike), at 4.
See doc. no. 24 (defendant’s reply brief on motion to strike), at 4. Initial disclosures are not
filed with the court, so the court cannot verify this assertion but must instead accept it as the
representation of an officer of the court who would be subject to sanctions for making a
of-court statement being offered to prove the truth of the matter asserted therein, and
there is no reasonable way for the statement to be submitted in admissible form at
trial, it will be stricken and will not be considered on summary judgment.
III. DISCUSSION OF SUMMARY JUDGMENT MOTION
After a careful review of the parties’ briefs and evidentiary submissions, the
court concludes there are genuine issues of material fact with regard to who made the
ultimate decision to terminate plaintiff’s employment, and with regard to whether
plaintiff was provided with the same opportunity as other nurses to remediate the
failing test score that led to the termination of her employment. Plaintiff has thus
created fact issues with regard to both her satisfaction of the prima facie case for race
discrimination in employment, and her assertion that defendant’s proffered legitimate,
non-discriminatory reasons for the decision were a mere pretext for discrimination.
Those fact issues must be resolved by a jury, and defendant’s motion for summary
judgment consequently must be denied.
IV. CONCLUSION AND ORDERS
In accordance with the foregoing, defendant’s motion to strike is GRANTED.
It is ORDERED that all references to statements by plaintiff’s co-worker “Teresa”
that Teresa heard Stephanie Wallace say, in reference to plaintiff’s daughters, that
“the niggers shouldn’t have come up there,” shall be stricken from the record. No
such statements have been considered in connection with defendant’s motion for
summary judgment, and none will be permitted at trial.
Defendant’s motion for summary judgment is DENIED. This case will be set
for pre-trial conference and trial by separate order.
DONE this 20th day of June, 2013.
United States District Judge
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