Murphy-Brown v. Adtran Inc

Filing 30

MEMORANDUM OPINION AND ORDER - Based on the foregoing, all of Murphy-Browns objections, (doc. 18 ), are OVERRULED and ADTRANs objections, (doc. 22 ), are SUSTAINED IN PART and OVERRULED IN PART. Specifically, its objecti ons to paragraphs 4 and 5 of Murphy-Browns declaration, (doc. 16-8) and to the References Document, (doc. 16-3), are SUSTAINED as set out above. The remainder of its objections are OVERRULED. Signed by Magistrate Judge John H England, III on 8/18/2015. (KEK)

FILED
2015 Aug-18 PM 02:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KATHLEEN T. MURPHY-BROWN,
Plaintiff,
v.
ADTRAN, INC.,
Defendant

)
)
)
)
)
)
)
)
)

Case Number: 5:13-cv-01273-JHE

MEMORANDUM OPINION AND ORDER
Plaintiff Kathleen T. Murphy-Brown moves to strike portions of declarations and
affidavits submitted by Defendant ADTRAN, Inc. (Doc. 18). Defendant responded to the
motion and filed its own motion to strike portions of Plaintiff’s evidentiary submission. (Docs.
21 & 22).

As explained more fully below, Murphy-Brown’s objections, (doc. 18), are

OVERRULED and ADTRAN’s objections, (doc. 22), are SUSTAINED IN PART and
OVERRULED IN PART.
I. Analysis
With the December 1, 2010 rules change to Rule 56 of the Federal Rules of Civil
Procedure, it no longer appears that motions to strike submitted on summary judgment are
appropriate. Revised Rule 56(c)(2) provides that “[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 Advisory Committee Notes specify as follows:
Subdivision (c)(2) provides that a party may object that material cited to support
or dispute a fact cannot be presented in a form that would be admissible in
evidence. The objection functions much as an objection at trial, adjusted for the
pretrial setting. The burden is on the proponent to show that the material is
admissible as presented or to explain the admissible form that is anticipated.
There is no need to make a separate motion to strike. If the case goes to trial,

failure to challenge admissibility at the summary-judgment stage does not forfeit
the right to challenge admissibility at trial.
FED. R. CIV. P. 56, Adv. Comm. Notes, “Subdivision (c)” (2010 Amendments). See Campbell v.
Shinseki, 546 Fed. App’x 874, 879 (11th Cir. 2013) (“Before this amendment, parties properly
challenged evidence used in a summary judgment motion by filing a motion to strike. The plain
meaning of these provisions show that objecting to the admissibility of evidence supporting a
summary judgment motion is now a part of summary judgment procedure, rather than a separate
motion to be handled preliminarily.”).
The undersigned construes the parties’ motions to strike as objections to “the material
cited to support or dispute” the other’s facts on summary judgment. Because admissibility of
evidence at the summary judgment stage does not affect admissibility at trial, the parties’
arguments will only be considered to the extent they address material cited for summary
judgment purposes, and material successfully challenged will not be considered in the
undersigned’s subsequent report and recommendation.
A. Evidence Requirements on Summary Judgment
The requirements for affidavits and declarations offered in support of or in opposition to
summary judgment are outlined in Rule 56(c)(4), Fed. R. Civ. P. That rule requires that an
affidavit or declaration be based “on personal knowledge, set out facts that would be admissible
in evidence, and show that the . . . declarant is competent to testify on matters stated.” FED. R.
CIV. P. 56(c)(4). Inadmissible evidence can take various specific forms, the relevant version of
which are discussed below.
Inadmissible hearsay is an out-of-court statement, presented for the purpose of
establishing the truth of the statement’s content, that does not fall within an exception to the
hearsay rule. See FED. R. EVID. 801, 802, 803, & 804. However, if a statement is offered for a
2

reason other than “to prove the truth of the matter asserted,” it is not hearsay and the statement is
admissible for that non-hearsay purpose. See FED. R. EVID. 801(c)(2); Macuba v. Deboer, 193
F.3d 1316, 1323-24 (11th Cir. 1999). Such non-hearsay purposes include merely providing
context for the actual testimony of the affiant or declarant. See, e.g., United States v. Cruz, 508
F. App’x 890, 899 (11th Cir. 2013) (holding non-testifying witness’s taped statements were not
hearsay because they were offered not for their truth but as context for testifying witness’s
statements).
Similarly inadmissible is irrelevant evidence. FED. R. EVID. 402. “Relevant evidence” is
that which has any tendency to make a fact, which is of consequence in determining the action,
more or less probable than it would be without the evidence. FED. R. EVID. 401. This is an
extremely low bar, casting a very broad net, hemmed in primarily by Rule 403’s exclusions of
relevant evidence, whose probative value is outweighed by other considerations.
Rule 56(c)(4), Fed. R. Civ. P. also requires affidavits and declarations offered in support
or opposition to summary judgment be based on personal knowledge.

“A witness may not

testify to a matter unless evidence is introduced sufficient to support a finding that the witness
has personal knowledge of the matter.” FED. R. EVID. 602. Further, evidence to prove personal
knowledge may consist of the witness’s own testimony. Id. Specifically, district courts are
“bound to accept as true” statements in the affidavit or declaration that it is made on personal
knowledge, “unless the context demonstrate[s] otherwise.” Martin v. Rumsfeld, 137 Fed. App’x.
324, 326 (11th Cir. 2005).
Conclusory allegations in affidavits and declarations are similarly insufficient to support
a motion for or opposition to summary judgment. See FED. R. CIV. P. 56(c)(4) (requiring
affidavits to “set out facts that would be admissible in evidence” (emphasis added)); Leigh v.

3

Warner Bros., 212 F.3d 1210, 1217 (11th Cir. 2000) (“[C]onclusory allegations without specific
supporting facts have no probative value.”); Story v. Sunshine Foliage World, Inc., 120 F. Supp.
2d 1027, 1030 (M.D. Fla. 2000) (stating an affidavit is not appropriate for summary judgment
“when it is a conclusory argument rather than a statement of fact”).
Similarly, “[w]hen a party has given clear answers to unambiguous questions which
negate the existence of any genuine issue of material fact, that party cannot thereafter create such
an issue with an affidavit that merely contradicts, without explanation, previously given clear
testimony.” Van T. Junkins & Associates, Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir.
1984). Courts, however, “may only disregard an affidavit that contradicts, without explanation,
previously given clear testimony,” and the previous testimony “must consist of clear answers to
unambiguous questions which negate the existence of any genuine issue of material fact,” Lane
v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir. 1986) (emphasis in original). “A definite
distinction must be made between discrepancies which create transparent shams and
discrepancies which create an issue of credibility or go to the weight of the evidence.” Tippens v.
Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). The Eleventh Circuit has also stated: “This
rule is applied sparingly because of the harsh effect it may have on a party’s case. Furthermore,
to allow every failure of memory or variation in a witness’ testimony to be disregarded as a sham
would require far too much from lay witnesses and would deprive the trier of fact of the
traditional opportunity to determine which point in time and with which words the affiant was
stating the truth.” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1316 (11th Cir.
2007) (internal citations omitted).

4

B. Murphy-Brown’s Objections (Doc. 18)
Murphy-Brown challenges various portions of the affidavits of Jeff Fuller, Billy Hall,
Sandy Leighton, and Jeremy Harris.
1. Affidavit of Jeff Fuller
Murphy-Brown challenges several portions of Jeff Fuller’s affidavit as hearsay,
conclusory, and not based on personal knowledge. (Doc. 18 at 1). First, she contends paragraph
17 of Fuller’s affidavit (cited on pages 10 and 11 of ADTRAN’s brief) is hearsay because it
describes a statement Randy Jones made to Fuller about her that does not appear in Jones’s
declaration. (Doc. 18 at 1). Fuller states in paragraph 17 that Murphy-Brown and others had
told him that she had considered quitting. (Doc. 14-3 at 2-3). Although these statements may
not be offered to show she actually considered resigning, they are admissible to show, in support
of decision-maker Fuller’s belief “Murphy-Brown was not happy at work,” that Fuller had been
told she had considered resigning. (Id. at 3). For that purpose, these statements are not hearsay.
This objection is OVERRULED.
Similarly, Murphy-Brown challenges all of paragraph 31 (cited on page 13 of
ADTRAN’s brief) as hearsay, double-hearsay, conclusory, and not based on personal
knowledge, taking particular exception to the term “issues.” (Doc. 18 at 1-2). In paragraph 31,
Fuller states the HR manager met with Murphy-Brown about “her drinking issues” and that
Fuller learned from him Murphy-Brown admitted to excessive drinking at the 2011 sales
conference. (Doc. 14-3 at 6). Again, however, although the statements may not be offered to
prove in this Court that Murphy-Brown had been drunk at the sales conference, they are
admissible to show a decision-maker (Fuller) had been told about Murphy-Brown drinking at the

5

conference and believed she had been drunk there. Fuller stating what he was told is certainly
based on his own personal knowledge and not conclusory.1 This objection is OVERRULED.
Murphy-Brown also challenges the first sentence of paragraph 28 as hearsay and a
conclusory allegation. (Doc. 18 at 1). Paragraph 28, sentence 1 states, “Prior to the drinking
episode, I had had a conversation with my boss, Senior Vice President and General Manager in
the Carrier Networks Division Jay Wilson in January 2012 about Ms. Murphy-Brown.” (Doc.
14-3 at 6). There does not appear to be anything in this statement that is hearsay or conclusory,
but, because the description of the challenged language was so cursory (i.e, “Paragraph 28. First
sentence. Hearsay and conclusory.”), it is impossible to tell what exactly she challenges. That
he had a conversation is certainly not hearsay or conclusory. If she is challenging his reference
to the “drinking episode,” that phrase is included merely for temporal context and is not evidence
there was a “drinking episode.”

Moreover, ADTRAN does not appear to have cited this

paragraph in its motion brief or reply. This objection is OVERRULED.
2. Declaration of Billy Hall
Murphy-Brown further contends the first two sentences of paragraph 9 in Billy Hall’s
declaration are not based on personal knowledge, are conclusory, and are based on “vagaries
such as ‘it seemed.’” (Doc. 18 at 2). In the first two sentences of paragraph 9, Hall states,
“Murphy-Brown and Randy Jones had a very close working relationship.

They spent a

significant amount of time together at work.” (Doc. 14-5 at 3). Because it does not appear
ADTRAN relies on this paragraph in either its motion or its reply, (see doc. 13 (citing doc. 14-5

1

Murphy-Brown is not clear exactly what her issue is with Fuller’s use of the term
“drinking issues,” but, as that use is merely reflective of his understanding of the purpose of the
meeting and is not evidence she actually has any “issues,” it is not objectionable as a conclusory
allegation, as hearsay, or as not based on personal knowledge.
6

at ¶¶ 6-8); doc. 20 (citing doc. 14-5 at ¶ 7)), there does not appear to be anything for MurphyBrown to object to on summary judgment. These objections are OVERRULED.
3. Affidavit of Sandy Leighton
Next, Murphy-Brown contends paragraphs 16 and 17 of Sandy Leighton’s affidavit are
inadmissible hearsay and not based on Leighton’s personal knowledge because she “relays
hearsay from another employee, Trish Perry, as well as summarizes the mental decision
processes of a third party who has not provided her own testimony.” (Doc. 18 at 2). It does not
appear that either of these paragraphs in Leighton’s affidavit is cited in ADTRAN’s motion for
summary judgment, and ADTRAN cites them in its reply only to support the statement Leighton
reported misconduct to Trish Perry, Fuller, and Frank Humphrey, (doc. 20 at 11). As a result, a
determination of whether her description of what Perry told her is hearsay would be hypothetical
because ADTRAN has not cited the actual hearsay statements for any purpose. To the extent the
“hearsay” statements are relevant to the facts supported by ADTRAN’s citation, Leighton’s
statements about what Perry told her are not inadmissible hearsay because they are being used as
context for Leighton’s statements about reporting the events to Fuller and Humphrey, not for
their truth. See Cruz, 508 F. App’x at 899. To the extent the statements were offered for this
purpose, Leighton would have personal knowledge of what she was told, what she decided, and
what she told Fuller and Humphrey. This objection is OVERRULED.
4. Affidavit of Jeremy Harris
Lastly, Murphy-Brown objects to several portions of Jeremy Harris’s affidavit. (Doc. 18
at 2). Specifically, she objects, as speculative, conclusory, and lacking foundation, to the last
sentence of paragraph 6, in which Harris states Murphy-Brown spoke to him before she had time
to see how everything would work out and before she got to know Jeff Fuller. (Id.) (citing doc.

7

14-8 at 2). She further objects, as conclusory and lacking foundation, to the last sentence of
paragraph 7, in which Harris states that Fuller gave Murphy-Brown new job duties that better
reflected the job she was initially hired to perform. (Id.) (citing doc. 14-8 at 2). Finally, she
objects to two sentences of paragraph 11. (Id.). In the second sentence of that paragraph, Harris
states “[t]he Operations Group were actually fulfilling the requirements of packages bid out by
[Murphy-Brown] and her group,” (doc. 14-8 at 3), and Murphy-Brown contends there was no
foundation laid for how Harris would have personal knowledge of all of the program managers’
performances in fulfilling ADTRAN’s contractual obligations, (doc. 18 at 2). In the fourth
sentence of that paragraph, Harris states he “observed that, during [Service Group status report]
meetings, [Murphy-Brown] attempted to make certain individuals look bad in front of upper
management, including, but not limited to, Bill Hall,” (doc. 14-8 at 3), and Murphy-Brown
contends the statement about making people look bad is speculative, vague, and conclusory,
(doc. 18 at 2-3).
ADTRAN, however, has not cited most of the challenged language in its summary
judgment brief or reply. Although ADTRAN does cite these three paragraphs in its brief, (doc.
13 at 8-11), paragraphs 6 and 7 are cited for propositions to which Murphy-Brown does not
object, such as stating she complained about the company and management, Fuller in particular.
(See doc. 13 at 8 & 10-11). Similarly, the first challenged sentence of paragraph 11, stating
“[t]he Operations Group were actually fulfilling the requirements of packages bid out by
[Murphy-Brown] and her group,” does not appear to support any of the language for which that
paragraph is cited. (See doc. 13 at 9; doc. 14-8 at 3). As a result, these objections are merely
hypothetical and, therefore, OVERRULED.

8

The second challenged sentence in Paragraph 11, on the other hand, supports the broader
proposition and, therefore, indirectly supports the ultimate fact for which the paragraph is cited.
(See doc. 13 at 9; doc. 14-8 at 3). The statement regarding making coworkers look bad is cited
as an example of Murphy-Brown’s “difficulty in interacting with Program Managers in the
Operations Part of the Services Group,” (doc. 14-8 at 3), which is cited for the statements she
had “problems working with her co-workers” and “particularly . . . with Program Managers in
the Operations Group,” to whom “[s]he often spoke . . . in a negative, degrading and
condescending manner,” (doc. 13 at 9).
The statement Harris “observed . . . [Murphy-Brown] attempt[ing] to make certain
individuals look bad in front of upper management” is speculative and not based on personal
knowledge to the extent it implies he knew her intent was to make those individuals look bad.
However, if that impermissible assumption is construed as merely a casual expression of his
interpretation of the other facts in the statement and not taken literally, the statement MurphyBrown did things in staff meetings that made or could have made others, including Billy Hall,
look bad is a statement of fact that supports the broader statements she had “problems working
with her coworkers.” That statement is not objectionable on summary judgment. This objection
is OVERRULED.
Regardless, even if Harris’s statement were found inadmissible, ADTRAN also cites
Murphy-Brown’s own testimony, Fuller’s affidavit, and Hall’s declaration as support for the
statements of fact for which it cites paragraph 11. (Doc. 13 at 9) (citing doc. 14-1 at 27-28 (10305), 67 (263-64), & 84 (331-32); doc. 14-3 at 4; doc. 14-5 at 2-3). Although Murphy-Brown
disputes whether her testimony actually supports ADTRAN’s statements of fact, she does not
dispute or challenge Fuller’s and Hall’s statements. (See doc. 15 at 7; doc. 18 at 1-2). As a

9

result, these statements of fact are sufficiently supported for purposes of ADTRAN’s motion for
summary judgment.
C. ADTRAN’s Objections (Doc. 22)
ADTRAN challenges (1) portions of Murphy-Brown’s declaration as a “sham affidavit,”
irrelevant, conclusory, and lacking foundation; (2) the References Document, attached to her
opposition as irrelevant, containing hearsay, and containing conclusory allegations and
speculation; and (3) ADTRAN’s Position Statement and Supplemental Position Statement as
irrelevant.
1. Murphy-Brown’s Declaration
i. “Sham Affidavit” Objections
First, ADTRAN challenges two paragraphs from Murphy-Brown’s declaration under the
“sham affidavit” doctrine. (Doc. 22 at 3-4). ADTRAN first objects to paragraph 4 (cited on
page 18 of Murphy-Brown’s opposition to summary judgment), in which Murphy-Brown states
ADTRAN has an “antiquated corporate culture, valuing and promoting men over women.”
(Doc. 22 at 3) (citing doc. 16-8 at 2). In her sworn deposition, Murphy-Brown previously stated
ADTRAN did not promote women but she was unaware of any other evidence “that the
company has systematically and intentionally done anything to prevent women from advancing
because they’re women.” (Id.) (citing doc. 14-1 at 25). These two statements are not materially
inconsistent. She believes ADTRAN has an antiquated corporate culture, promoting men over
women but does not have any other evidence of systematic and intentional acts to prevent
women from advancing. To the extent these statements do contradict each other, the phrase
“systematically and intentionally done anything to prevent women from advancing” is far from
unambiguous. If these statements contradict each other at all, they do not do so sufficiently to

10

create a clear “sham affidavit” so as to warrant application of this sparingly used doctrine. This
objection is OVERRULED.
Second, ADTRAN objects to paragraph 6 (cited on pages 26-27 of Murphy-Brown’s
opposition to summary judgment), in which Murphy-Brown described a business trip to Florida
and how a conflict arose between her and her coworkers. (Id.) (citing doc. 16-8 at 2-3). In her
sworn deposition, she briefly stated that she yelled at Billy Hall during the business trip. (Id.)
(citing doc. 14-1 at 23). These two statements, however, are also not materially contradictory.
Murphy-Brown goes into more depth in her declaration, providing substantially more detail
about the events before the argument while glossing over the argument itself, but the statements
are otherwise consistent. In her deposition, she stated she yelled at him and accused him of
lying, (doc. 14-1 at 23), and, in her declaration, she states she “called Billy and told him what
Randy had conveyed,” (doc. 16-8 at 3).

“Telling” Hall what Jones had said could easily

encompass “yelling” and “accusing.” As with paragraph 4, to the extent these statements
contradict each other at all, they do not do so sufficiently to create a clear “sham affidavit.” This
objection is OVERRULED.
ii. Irrelevance Objections
Next, ADTRAN challenges the relevance of two paragraphs in Murphy-Brown’s
declaration. ADTRAN first objects to paragraph 5 (cited on page 21 of Murphy-Brown’s
opposition to summary judgment), in which Murphy-Brown stated “Program Manager Billy Hall
was particularly discriminatory towards women . . . .” (Doc. 22 at 5) (citing doc. 16-8 at 2).
ADTRAN contends this is irrelevant because there is no evidence Hall was a decision-maker or
that Murphy-Brown complained to Human Resources about Halls allegedly discriminatory
behavior. (Id.). Murphy-Brown counters that showing he was a decision-maker is unnecessary

11

because his allegedly discriminatory behavior is relevant to her hostile work environment claim.
(Doc. 25 at 3). Even though ADTRAN does not think too much of Murphy-Brown’s hostile
work environment claim, (see doc. 13 at 23 n.5; doc. 20 at 20), that does not mean the claim was
not brought and raised in response to summary judgment, (see doc. 1; doc. 15 at 43-44). While
the evidence may ultimately be insufficient, it is not irrelevant.

This objection is

OVERRULED.
Second, ADTRAN objects to paragraph 7 (cited on page 25 of Murphy-Brown’s
opposition to summary judgment), in which Murphy-Brown stated she reported customer and
vendor complaints, including complaints about Billy Hall, to her team. (Doc. 22 at 5) (citing
doc. 16-8 at 3). ADTRAN contends this is irrelevant because Murphy-Brown has not alleged
Billy Hall was a comparator. (Id.). Murphy-Brown counters, stating she is responding to
ADTRAN’s argument she was not happy at ADTRAN and frequently complained. (Doc. 25 at
4). (See also doc. 13 at 10 & 14) (in which ADTRAN raises these complaints as a basis for her
termination). She states this evidence shows that, in many cases, she was not complaining but
conveying the complaints of customers and vendors. (Id.). The evidence is not objectionable on
the ground ADTRAN raises. This objection is OVERRULED.
iii. Conclusory Allegation and Personal Knowledge Objections
The last ground on which ADTRAN challenges portions of Murphy-Brown’s declaration
is that they are conclusory or not based on personal knowledge. ADTRAN first objects to
paragraph 4 (cited on page 18 of Murphy-Brown’s opposition to summary judgment), in which
Murphy-Brown states ADTRAN has an “antiquated corporate culture, valuing and promoting
men over women.” (Doc. 22 at 6) (citing doc. 16-8 at 2). ADTRAN contends Murphy-Brown
offers no facts in support of these conclusions. (Id.). Murphy-Brown counters that the statement

12

is based on her personal experience and observations while working at ADTRAN and other
companies. (Doc. 25 at 4). Although her statement is certainly based on personal experience
and knowledge, that does not alone render it admissible. Her statement puts her own gloss on
other evidence, taking the inferences she believes appropriate from evidence she does not
directly reference in the statement. In effect, the statement amounts to inadmissible opinion
evidence that merely tells the trier of fact what result to reach and is therefore unhelpful because
the trier of fact is in “as good a position as the witness to draw the inference[s]” from events,
actions, and communications described in other evidence. See Hamilton v. Coffee Health Grp.,
949 F. Supp. 2d 1119, 1128 (N.D. Ala. 2013) (citing Fed. R. Evid. 701 and quoting the
discussion of that rule in Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir. 2000)). At most, this
statement could be useful as an expression of Murphy-Brown’s perception of a discriminatory
corporate culture and can be considered evidence only to the extent that perception is relevant.
The Court will take all reasonable inferences in her favor on summary judgment, but it will take
the inferences from the evidence itself and not as they are stated by the parties. This objection is
SUSTAINED.
Second, ADTRAN objects to paragraph 5 (cited on page 21 of Murphy-Brown’s
opposition to summary judgment), in which Murphy-Brown stated “Program Manager Billy Hall
was particularly discriminatory towards women . . . .” (Doc. 22 at 6) (citing doc. 16-8 at 2).
ADTRAN contends Murphy-Brown offers no foundation upon which she bases her conclusion.
(Id.).

Murphy-Brown argues this statement is also based on her personal experience and

observations. (Doc. 25 at 4-5). As with the language in paragraph 4, this statement may be
based on personal knowledge, but it is essentially a statement of Murphy-Brown’s opinion
regarding Hall’s motivation based on events, actions, and communications she does not reference

13

in the statement. Her inferences from those underlying events are not themselves evidence. This
objection is SUSTAINED.
Lastly, ADTRAN objects to paragraph 13 (cited on page 22 of Murphy-Brown’s
opposition to summary judgment), in which Murphy-Brown alleged Tracy Gerdeman was so
upset she called Marty Hunt, who never returned the call. (Doc. 22 at 6) (citing doc. 16-8 at 4).
ADTRAN contends there is no indication this evidence is based on personal knowledge. (Id.).
Murphy-Brown’s response refers to “paragraph 5” and references her deposition testimony cited
in ADTRAN’s motion, which does not address the incident with Gerdeman. (See doc. 25 at 5)
(referencing doc. 22 at 3-4). However, the declaration states it is made on personal knowledge,
(doc. 16-8 at 2), which district courts are “bound to accept as true, unless the context
demonstrate[s] otherwise.” Martin, 137 Fed. App’x. at 326. As the context of the declaration
testimony allows a reasonable conclusion of personal knowledge and ADTRAN does not present
any basis to believe otherwise, this objection is OVERRULED.
2. The References Document
Asserting it contains irrelevant statements, hearsay, and conclusory statements,
ADTRAN challenges a document attached to Murphy-Brown’s response that memorializes an
ADTRAN employee’s account of statements made by Murphy-Brown’s references. (Doc. 22 at
6-7) (citing doc. 16-3). The statements Murphy-Brown cites from the document are clearly
hearsay. Specifically, she uses the document to support the statement her “former co-workers
described her as ethical, good morals, high energy personality, team player, gets along well with
others, responsible, dependable and trustworthy, with no history of substance abuse.” (Doc. 15
at 15-16).

14

Murphy-Brown contends the statements are not hearsay because they appear in a
document created by ADTRAN and are, therefore, admissions against interest by a party
opponent. (Doc. 25 at 6) (citing Fed. R. Evid. 801(d)(2)(A), (C), & (D)). The problem with this
argument is that, even if this were sufficient to get the ADTRAN employee’s statement admitted,
the ADTRAN employee’s statement is irrelevant if the underlying statement is inadmissible.
The ADTRAN employee’s statement is merely that, when Murphy-Brown was hired, her
references said those things about her. The material questions at issue on summary judgment
involve whether she was qualified for her position or the decision-makers had discriminatory
intent. Although the underlying statements regarding her personal attributes might be relevant to
those questions (because they might to some degree tend to show she was qualified and not hard
to work with and, therefore, that the real reason she was fired was discrimination), the fact a nondecision-making ADTRAN employee said others said those things about her before she was
hired does not support the fact she actually has those attributes, that she was qualified, or that she
was fired for a discriminatory reason. The ADTRAN employee’s statement is only relevant if
the underlying statements are admissible.
However, the document cannot be used to support the statement Murphy-Brown was
actually any of the things her references said about her. Because she would be attempting to use
the statement of the ADTRAN employee for its truth (that the references said those things about
her) and the underlying statements of the references for their truth (that she actually is those
things), it would be hearsay within hearsay, for which an exception must apply to both
statements. FED. R. EVID. 805. In that situation, Murphy-Brown’s argument would not apply to
the references’ statements recorded by the document, which Murphy-Brown would be attempting

15

to admit for their truth. She does not offer any exception for the underlying statements of her
references. Accordingly, the objection to this evidence is SUSTAINED.
3. Adtran’s Position Statements
Lastly, ADTRAN challenges Murphy-Brown’s admission of its EEOC position statement
and supplemental EEOC position statement as irrelevant because “an employer’s expansion upon
the reasons for a decision articulated in an EEOC position statement are insufficient to prove
pretext.” (Doc. 22 at 9) (citing Hammons v. Computer Programs & Sys., Inc. (CPSI), No. CIV.
05-0613-WS-C, 2006 WL 3627117, at *8 (S.D. Ala. Dec. 12, 2006)). While it may be true that
consistent expansion on reasons is insufficient to prove pretext, discrepancies in a defendant’s
reasons over time may be sufficient to establish pretext. See Hammons, No. CIV. 05-0613-WSC, 2006 WL 3627117, at *8 (citing Hurlbert v. St. Mary's Health Care System, Inc., 439 F.3d
1286, 1298 (11th Cir. 2006)). The fact the position statements may ultimately be insufficient to
show a discrepancy sufficient to establish pretext does not make them irrelevant to that question.
These objections are OVERRULED.
II. Conclusion
Based on the foregoing, all of Murphy-Brown’s objections, (doc. 18), are OVERRULED
and ADTRAN’s objections, (doc. 22), are SUSTAINED IN PART and OVERRULED IN
PART. Specifically, its objections to paragraphs 4 and 5 of Murphy-Brown’s declaration, (doc.
16-8) and to the References Document, (doc. 16-3), are SUSTAINED as set out above. The
remainder of its objections are OVERRULED.

16

DONE this the 18th day of August 2015.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

17