Daniel v. Huntsville City Board of Education et al

Filing 63

MEMORANDUM OPINION and ORDER; It is ORDERED that the Huntsville City Board of Education's Motion for Partial Reconsideration is GRANTED. The March 8, 2018 memorandum opinion and order is modified to hold that paragraphs 16 and 42 of Plaintiff's declaration are STRICKEN. Signed by Judge C Lynwood Smith, Jr on 03/30/18. (SPT )

FILED
2018 Mar-30 PM 03:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BRENDA L. DANIEL,
Plaintiff,
vs.
HUNTSVILLE CITY BOARD
OF EDUCATION, et al.,
Defendants.

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Civil Action No. 5:16-cv-1919-CLS

MEMORANDUM OPINION AND ORDER
This case is before the court on the motion filed by defendant Huntsville City
Board of Education (“the Board”) for partial reconsideration of this court’s March 8,
2018 memorandum opinion and order granting in part and denying in part defendants’
motion to strike plaintiff’s declaration.1
The Board challenges the court’s ruling with regard to paragraphs 16 and 42 of
plaintiff’s declaration. Paragraph 16 stated:
I did not make any insensitive comments regarding a special needs
student. To the contrary, out of concern for the student, I sought
guidance in a session that was confidential, because I had not been given
needed information in order to properly handle the situation. When this
write-up was brought to the attention of Shirley Wellington, she
stated to me that such a write-up was entirely improper and
unwarranted.
Doc. no. 47-1 (Declaration of Brenda L. Daniel), ¶ 16 (emphasis in original).
1

Doc. no. 60. The March 8 memorandum opinion and order is doc. no. 59.

Paragraph 42 stated:
I reported my complaints against Principal Alexander to Shirley
Wellington, while Wellington was an AEA representative, who very
shortly after receiving those complaints, became Compliance Director.
Wellington was well aware of my complaints. She encouraged me to
counter the write-ups of Defendant Alexander. Wellington stated to me
that she believed the write-ups were totally unwarranted and improper.
Not only did Wellington advise me that she believed they were
unwarranted and that she could not believe the level of impropriety of the
write-ups, she also aided me in drafting the rebuttals. Those rebuttals
were later made part of my personnel file.
Id., ¶ 42 (emphasis supplied).
The Board argued that plaintiff’s recounting of Wellington’s statements was
inadmissible hearsay, but the court held that they were admissible, or could be
presented in admissible form at trial, pursuant to Federal Rule of Evidence 801(d)(2),
which states, in pertinent part, that a statement is not hearsay if it “is offered against
an opposing party and . . . (C) was made by a person whom the party authorized to
make a statement on the subject; [or] (D) was made by the party’s agent or employee
on a matter within the scope of that relationship and while it existed.” Fed. R. Evid.
801(d)(2)(C)-(D) (alteration and ellipsis supplied).2
The Board now asks the court to reconsider that decision because Wellington
was not yet employed as the Board’s Compliance Director when she made the
comments relayed in plaintiff’s declaration. The Board is correct. When Wellington
2

Doc. no. 59 (memorandum opinion and order on motion to strike), at 5-7.
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made the alleged comments, she still worked as an AEA representative, not as the
Compliance Director. Plaintiff argues in rebuttal that an agency relationship existed
between Wellington and the Board even when Wellington was an AEA representative,
because the AEA representative was responsible for bringing employee complaints to
the attention of the Board or the Superintendent. That argument is not persuasive
because, as a representative for an organization created to advocate for education
professionals such as plaintiff, Wellington served an agent of the teachers, not of the
Board. Moreover, because no employment or other agency relationship existed
between Wellington and the Board, Wellington could not have been authorized to
make statements on behalf of the Board.
Plaintiff also argues that Wellington’s statements fall within the residual
exception to the hearsay rule set forth in Federal Rule of Evidence 807:
(a) In General. Under the following circumstances, a hearsay
statement is not excluded by the rule against hearsay even if the statement
is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees
of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered
than any other evidence that the proponent can obtain through
reasonable efforts; and

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(4) admitting it will best serve the purposes of these rules
and the interests of justice.
Fed. R. Evid. 807. Plaintiff contends that Wellington’s contested statements are
trustworthy because Wellington began working for the Board as Compliance Director
soon after making the statements. While that might indicate that the Board considered
Wellington to be a generally trustworthy employee, it says nothing about the
trustworthiness of statements made by Wellington before the date upon which she
became a Board employee. Additionally, plaintiff’s recounting of Wellington’s
statements would be no more probative than Wellington’s own testimony, which
plaintiff could reasonably obtain by calling Wellington as a witness.
Because plaintiff’s recounting of Wellington’s statements is hearsay that does
not fit within any exception, those statements cannot be considered at summary
judgment. Thus, it is ORDERED that the Board’s motion for partial reconsideration
is GRANTED. The March 8, 2018 memorandum opinion and order is modified to
hold that paragraphs 16 and 42 of plaintiff’s declaration are STRICKEN.
DONE this 30th day of March, 2018.

______________________________
United States District Judge

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