Cribbs v. NFI Industries, Inc.
Filing
55
ORDER granting in part and denying in part 32 Motion to Strike ; dismissing as moot 33 Motion to Strike ; dismissing as moot 43 Motion to Strike ; granting in part and denying in part 47 Motion to Strike ; granting 51 Motion to Strike ; dismissing 27 Motion for Summary Judgment. Defendants shall have 30 days from the date of this order to refile their motion in accordance with the Court's evidentiary rulings. Signed by Judge William T. Moore, Jr on 9/25/13. (wwp)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
STEPHEN R. CRIBBS,
Plaintiff,
V.
)
NFl INDUSTRIES, INC and NFl
NETWORK LOGISTIC SOLUTIONS,
LLC,
)
CASE NO. CV411-263 T
1
)
CA'
Defendants.)
I
MI
I
ORDER
Before the Court are Plaintiff's Motion to Strike
Portions of Defendants' Statement of Undisputed Material
Facts (Doe. 32), Plaintiff's Motions to Strike Affidavits
(Doe. 33; Doe. 43), Plaintiff's Motion to Strike Defendants'
Supplemental Statement of Material Fact (Doe. 51) , and
Defendants' Motion to Strike Portions of Declarations (Doc.
47). For the following reasons, Plaintiff's Motions to
Strike Affidavits (Doc. 33; Doe. 43) are DISMISSED AS MOOT,
Plaintiff's Motion to Strike Portions of Defendants'
Statement of Undisputed Material Facts (Doe. 32) is GRANTED
IN PART
and DENIED
IN
PART, Plaintiff's Motion to Strike
Defendants' Supplemental Statement of Material Facts (Doe.
51) is GRANTED,
and Defendants' Motion to Strike Portions of
Declarations (Doc. 47)
is GRANTED IN PART
and DENIED IN
PART.
As explained below, Defendants' Motion for Summary
Judgment (Doc. 27) is also DISMISSED and Defendants shall
have thirty days from the date of this order to ref lie their
motion in accordance with the Court's evidentiary rulings.
Following service of the new motion, all normal briefing
deadlines will apply. Both parties should be aware,
however, that the Court will not accept any motion or
response that incorporates by reference any factual
allegation or argument contained in an earlier filing. Each
motion and response should be a stand-alone filing that
independently contains all the factual allegations and
arguments that the filing party wishes the Court to
consider.
BACKGROUND
In this case, Plaintiff Stephen R. Cribbs claims that
Defendants discriminated against him when they terminated
his employment. According to Plaintiff, he was yelled and
cursed at after he complained to Defendants about age
discrimination. (Doc. 11 ¶ 15.) As result, Plaintiff
suffered some sort of mental breakdown, which necessitated
his hospitalization and prevented him from returning to
work. (Id.) During this time, Plaintiff took leave under
2
the Family Medical Leave Act ("FMLA").
However, Plaintiff
contends that, while he was on FMLA leave, Defendants
continuously called him at home and requested that he attend
work meetings. (Id. ¶ 16.) When he returned, Plaintiff was
assigned to a different shift, working different days, at a
different facility. (Id. ¶ 17.) Defendants placed a
younger, female employee in Plaintiff's old position.
¶ 18.)
Following a string of disciplinary actions,
Plaintiff's employment was ultimately terminated.
¶J 19-23,)
(Id.
(Id.
Plaintiff contends that Defendants failed to
notify him when his employment was terminated that he was
eligible for continued health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA!')
(Id.
11T 24-33.)
After filing a timely charge of discrimination with the
Equal Employment Opportunity Commission ("EEOC") and
receiving Notice of Right to Sue, Plaintiff timely filed
suit in this Court. In his amended complaint, Plaintiff
brings claims for disparate treatment and retaliation under
the Age Discrimination in Employment Act of 1967 ("ADEA"),
29 U.S.C. §§ 621-634; failure to accommodate and retaliation
under the Americans with Disabilities Act ("ADA"), 42 U.S.C.
§§ 12101-12300; violation of the FMLA, 2 U.S.C. § 60, 29
U.S.C. §§ 2601, 2611-2619, 2631-2636, 2651-2654; and
3
violation of COBRA, 29 U.S.C. H 1161-1169.
Following
discovery, Defendants filed a Motion for Summary Judgment.
(Doc. 27.)
Along with his response to that motion, Plaintiff also
filed two Motions to Strike. (Doc. 32; Doc. 33.) In the
first, Plaintiff requests that the Court strike paragraphs
30, 32, 33, 39, and 54 of Defendants' Statement of
Undisputed Material Facts. (Doc. 32 at 1.) In the second,
Plaintiff requests that the Court strike paragraphs 20 and
34 of Deborah Gould's affidavit. (Doc. 33 at 1..) In
support of his requests, Plaintiff argues that these
offending paragraphs are simply hearsay and may not be used
to support a motion for summary judgment. (Doc. 32 at 1;
Doc. 33 at 1-3.)
In response to these motions, Defendants stipulated to
striking paragraphs 20 and 34 of the Gould Affidavit (Doc.
39 at 1.)
Therefore, that Motion to Strike (Doc. 33) is
DISMISSED AS
MOOT.
However, Defendants argue that
paragraphs 30, 32, 33, 39, and 54 of their Statement of
Facts are supported by admissible evidence contained in the
record. (Doc. 41 at 3-10.)
After they stipulated to striking portions of the Gould
Affidavit, Defendants filed the affidavit of Elizabeth
Walker. (Doc. 40.) Plaintiff quickly moved to strike that
4
affidavit as untimely.
(Doc. 43.)
In response, Defendants
voluntarily withdrew the Walker Affidavit.
(Doc. 50.) As a
result, that Motion to Strike (Doc. 43) by Plaintiff is also
DISMISSED AS MOOT.
With their reply to Plaintiff's response to Defendants'
Motion for Summary Judgment, Defendants submitted a second
statement of material facts in support of their request for
summary judgment. (Doc. 49.) Not surprisingly, Plaintiff
quickly filed a motion seeking to strike Defendants'
supplemental statement of material facts as improper and
untimely. (Doc. 51 ¶J 4-5.) Defendants did not respond to
Plaintiff's motion. Therefore, Plaintiff's motion (Doc. 51)
is GRANTED and the Court will disregard that filing.'
Not to be outdone, Defendants filed their own Motion to
Strike, requesting the Court strike several portions of the
declarations of Plaintiff, Debra Cribbs, Reginald Pero, and
Jeremy Walker. (Doc. 47.) Defendants make the now familiar
argument that these statements are either hearsay, opinion
testimony, conclusory, or assertions not based on personal
knowledge. (Id. at 5-20.) In response, Plaintiff contends
that the statements contained in these declarations are
1
To the extent Plaintiff seeks sanctions for this conduct
(Doc. 51 ¶ 7), that request is DENIED.
5
admissible and properly before the Court.
(Doc. 52 at 2-
19.)
ANALYSIS
I. MOTION TO STRIKE STANDARD
Generally, motions to strike are brought pursuant to
Federal Rule of Civil Procedure 12(f), which provides that
1
[u1pon
motion made by a party before responding to a
pleading . . . the court may strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter." The federal rules
define a pleading as one of the following: ''(1) a complaint;
(2) an answer to a complaint; (3) an answer to a
counterclaim designated as a counterclaim; (4) an answer to
a crossclaim; (5) a third-party complaint; (6) an answer to
a third-party complaint; and (7) if the court orders one, a
reply to an answer." Fed. R. Civ. P. 7(a). Affidavits,
declarations, and statements of material facts are not
pleadings as defined by the Rules of Civil Procedure.
However, Rule 56(c) (2) permits a party to "object that the
material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence."
Fed. R. Civ. P. 56(c) (2). The advisory committee notes to
Rule 56 state that these objections "function[] much as an
objection at trial" and "[t]here is no need to make a
separate motion to strike." Id. advisory committee's notes
to 2010 amendments. Therefore, the Court will treat these
motions to strike as evidentiary objections similar to
motions in limine.
II. PLAINTIFF'S MOTION TO STRIKE PORTIONS OF DEFENDANTS'
STATEMENT OF MATERIAL FACTS
Paragraph 30 states that
Plaintiff violated safety rules in 2009 when he
had given Jeremy Walker his manager's key to turn
off the inertia switch on his forklift. Walker hit
another forklift with his forklift and Plaintiff
allowed Jeremy Walker to turn off the inertia
alarms with the manager's key, and then cover up
the damage to the forklifts with spray paint.
(Doc. 29 ¶ 30.)
Defendants support this statement with
paragraph 20 of the Gould Affidavit. (Doc. 27, Ex. I.)
Paragraph 32 states that
In 2009 and early 2010, the NFl HR Manager Deborah
Gould (F/K/A Deborah Silva) ("Ms. Gould") received
complaints from associates that Plaintiff was often in
his office claiming that he had paperwork to do;
Plaintiff was rarely seen out on the floor supervising
his shift; Plaintiff would delegate his Shift
Supervisor paperwork to the lead on his shift, Jeremy
Walker; that Plaintiff allowed Jeremy Walker to pick
out the easiest jobs from the allocator and then dole
out the remainder of the jobs to the associates;
Plaintiff afforded Jeremy Walker a great deal of power
and basically allowed him to run the shift; and
Plaintiff frequently left the DC facility several times
per night during his shift to go to the nearby Wal-Mart
and he remained absent away for as much as an hour at a
time.
7
(Doc. 29 ¶ 32.)
Defendants support this statement with
paragraphs 6, 23, 25, 27, 28, and 30 of the Gould Affidavit.
(Doc. 27, Ex. I.)
Paragraph 33
states
that
"[w]hile working at the DC
facility, it was not uncommon for Plaintiff to waste time
with co-workers and subordinates talking about non-work-related matters during his shift." (Doc. 29 33.)
Defendants support this statement with paragraph 19 of the
Gould Affidavit (Doe. 27, Ex. I) and testimony from the
deposition of Ruth Rector ("Rector Deposition") (Doc. 27,
Ex. F).
Paragraph 39 states that a "power outage on Plaintiff's
shift caused a back-up in the loading of product, but
Plaintiff left at the end of his shift without informing his
manager of the issue." (Doe. 29
1 39.) Defendants support
this statement with paragraph 35 of the Gould Affidavit,
testimony from the deposition of Patrick Byrnes (Doe. 27,
Ex. B), and testimony from Plaintiff's deposition (id., Ex.
Finally, paragraph 54 states that
While Plaintiff was on FMLA leave, Ms. Gould
stayed late to interact with associates on
Plaintiff's shift, and several associates from
Plaintiff's shift came into her office to complain
about Plaintiff, which complaints included that
Plaintiff let Jeremy Walker run the shift, that
Jeremy Walker bullied the associates, and that
[;J
Plaintiff sat in his office and did not do
anything.
(Doc. 29 ¶ 54.)
Defendants support this statement with
paragraphs 45 and 46 of the Gould Affidavit.
(Doc. 27, Ex.
Plaintiff argues that these statements are supported
I.)
by only inadmissible hearsay and cannot be used by
Defendants to support their Motion for Summary Judgment.
(Doe. 32 at 3-4.)
With respect to paragraph 30, Defendants stipulated to
the withdrawal of paragraph 20 of the Gould affidavit used
to support paragraph 30 of the Statement of Fact.
at 2.)
(Doe. 41
In its place, Defendants offered the Walker
Affidavit as support for paragraph 30. (Id.) However,
Defendants subsequently withdrew the Walker Affidavit.
(Doe. 50), leaving paragraph 30 of their statement of facts
without any evidentiary support from the record. Therefore,
the Court must SUSTAIN Plaintiff's objection to paragraph 30
of Defendants' Statement of Facts because Defendants have
failed to support that statement by citing to admissible
evidence contained in the record. See Fed. R. Civ. P. 56(c)
(requiring asserted facts to be supported by citation to the
record)
With respect to paragraph 32, Defendants argue that
this statement is not based on inadmissible hearsay
contained in the Gould Affidavit.
(Doc. 41 at 8-9.)
Defendants reason that while the supporting paragraphs of
the Gould Affidavit recount comments made by employees to
Ms. Gould concerning Plaintiffs work performance, they are
not being offered to prove the truth of that assertion, but
rather to explain the basis for Defendants' decision to
discipline Plaintiff. (Id.) Generally, a party may not use
hearsay to support a motion for summary judgment. See Fed.
R. Civ. P. 56 (c). However, a statement is not hearsay if
offered for a purpose other than to prove the truth of the
matter asserted in the statement. Fed. R. Civ. P.
801(c) (2).
After reviewing those portions of the Gould Affidavit
used to support paragraph 32 of Defendants' Statement of
Fact, the Court concludes that these statement are not being
used to prove the truth of the matter asserted. Rather,
these statements catalog the various allegations of
workplace misconduct Defendants relied on when disciplining
Plaintiff. In other words, Defendants may properly use
these allegations of misconduct to attempt to explain the
legitimacy of their decision to discipline Plaintiff,
regardless of whether the allegations are true. Therefore,
Plaintiff's objection to paragraph 32 of Defendants'
Statement of Facts is OVERRULED.
10
With respect to paragraph 33, Defendants argue that the
Gould Affidavit directly supports this statement of fact.
(Doc. 41 at 9.) A quick review of paragraph 19 of the Gould
Affidavit shows this to be correct. !'Is. Gould states that
u[i]t was not uncommon for Mr. Cribbs to come into my office
for an hour or more to discuss work-related matters and
waste time talking about non-work-related matters."
27, Ex. I ¶ 19 (emphasis added).)
(Doc.
Therefore, Ms. Gould's
statement is based on her personal knowledge of Plaintiff
engaging in the alleged activity. As a result, Plaintiff's
objection to paragraph 33 of Defendants' Statement of Facts
is OVERRULED.
With respect to paragraph 39, Defendants contend Mr.
Byrnes appeared at the deposition as their designated
corporate representative pursuant to Federal Rule of Civil
Procedure 30(b) (6). (Doc. 41 at 5.) Defendants reason
that, as the designated corporate representative, Mr. Byrnes
was not required to have personal knowledge of the evidence
discussed in his deposition. (Id. at 5-6.) Indeed, Rule
30(b) (6) says as much, requiring Mr. Byrnes to 'testify
about information known or reasonably available to the
organization." As a result, Mr. Byrnes's personal knowledge
is irrelevant to his testimony. He properly testified as to
the institutional knowledge held by Defendants with respect
11
to the circumstances surrounding Plaintiff's termination.
(Doc. 27, Ex. 3 94:15-95:25.) Therefore, Plaintiff's
objection to paragraph 39 of Defendants' Statement of Facts
is OVERRRTJLED.
With respect to paragraph 54 of Defendants' Statement
of Facts, Defendants once again argue that this statement is
not supported by hearsay because those portions of Ms.
Gould's affidavit upon which Defendants' rely are not being
used to prove the truth of the employees' allegations
concerning Plaintiff's conduct at work. (Doc. 41 at 10.)
Rather, those statements are being offered to explain
Defendants' rationale behind disciplining and eventually
terminating Plaintiff's employment. As discussed above, the
Court agrees with Defendants' characterization and finds
that these statements are not being used to prove the truth
of the matter asserted, but recount the various allegations
of workplace misconduct underlying Defendants' decision to
discipline Plaintiff. Therefore, Plaintiff's objection to
paragraph 54 of Defendants' Statement of Facts is OVERRULED.
III. PLAINTIFF'S MOTION TO STRIKE PORTIONS OF DEFENDANTS'
STATEMENT OF MATERIAL FACTS
A. Declaration of Plaintiff
Defendants object to paragraphs 3, 5, 7, 8, and 14 of
Plaintiff's declaration on the grounds that they are either
12
inadmissible
hearsay,
improper
opinion
testimony,
conclusory, or not based on personal knowledge. (Doc. 47 at
5-9.) Paragraph 3 of Plaintiff's declaration
states
that
"[sJafety is no more important on the night shift than on
any other shift" and that 'e]very supervisor, including me,
was instructed by Tom Diego to paint any scratches on the
forklifts at the end of every shift every day." (Doc. 31,
Ex. 1A ¶ 3.) Defendants contend that the statement
concerning safety is both an improper lay opinion and a
conclusory statement unsupported by any factual evidence.
(Doc. 47 at 6.) Also, Defendants argue that Plaintiff lacks
personal knowledge of Mr. Diego's instructions to every
supervisor. (Id.)
While not succinctly stated, Plaintiff's statement
concerning safety is admissible because his experience as a
shift manager on both the day and night shift renders him
capable of comparing the requirements of the two. Quite
simply, this statement is a factual observation by Plaintiff
concerning the safety requirements in place when he was a
shift supervisor. Plaintiff's statement regarding Mr.
Diego's instructions to every supervisor is not hearsay to
the extent that it explains why Plaintiff allegedly painted
over damage to a forklift prior to the end of his shift.
Such a statement explains why an individual took a specific
13
action and is not offered to prove the truth of the matter
asserted. However, the statement would be inadmissible to
prove that Mr. Diego personally instructed every supervisor
to follow this policy. Plaintiff may state that Defendants
had a general policy requiring all supervisors to paint over
damage at the end of their shifts, but not that Mr. Diego
personally instructed every supervisor to do so.
Accordingly, Defendants' objection is SUSTAINED IN PART and
the Court will disregard this small portion of paragraph 3.
With respect to paragraph 5, Plaintiff states that he
"was instructed by Tom Diego to paint over any scratches,
etc. on the lifts at the ends of every shift as were all
supervisors." (Doc. 31, Ex. AA ¶ 5.) Once again,
Defendants reason that this statement contains inadmissible
hearsay and is unsupported by Plaintiff's personal
knowledge. (Doc. 47 at 6.) As this statement is materially
the same as that in paragraph 3, Defendants' objection is
SUSTAINED IN
PART and the Court will disregard only the
portion concerning Mr. Diego personally instructing every
supervisor to paint over forklift damage at the end of their
shifts.
With respect to paragraph 7, Plaintiff states that
[a] power outage occurred during the shift.
I
attempted to contact Mr. Diego, but he did not answer
my telephone call (which was not uncommon) .
. . I
14
worked on the power problem with the GP Technician from
the Mill and fixed all the problems, so there was no
problem to report to Mr. Diego.
(Doc. 31, Ex. AA ¶ 7.)
statement
directly
Defendants contend that this
contradicts
deposition
Plaintiff's
testimony that he did not call Mr. Diego. (Doc. 47 at 6-7.)
In addition, Defendants maintain that Plaintiff's statement
concerning the absence of any problem to report is not based
on personal knowledge, speculative, conclusory, and an
improper lay opinion. (Id. at 7.) Plaintiff responds that
"the chronology of the testimony reflects
[]
Plaintiff
attempted to call Mr. Diego during his shift about the power
outage, but Mr. Diego did not answer his call." (Doc. 52 at
5.) According to Plaintiff, the problem was subsequently
fixed and there was no longer any reason to notify Mr.
Diego. (Id. at 5-6.) Finally, Plaintiff argues that his
comments concerning the absence of any problem to report is
not hearsay and properly admissible. (Id. at 6.)
In Plaintiff's deposition, he is squarely asked whether
he called Mr. Diego:
Q.
And why was [Mr. Diego] mad at you?
A.
Because he felt like I should have called him.
Q.
And did you not call him?
A.
No.
15
Q.
I said that in a terrible way.
You didn't call
him, did you?
A.
No, ma'am.
(Doc. 27, Ex. AA 23:1-8.)
As indicated by this exchange,
Plaintiff was asked twice if he called Mr. Diego, but stated
both times that he did not. He even stated again later that
"[t]here was absolutely no reason to call [Mr. Diego] ."
(Id. 24:21-22.) This Court may only disregard Plaintiff's
declaration if it contradicts prior deposition testimony
without providing a valid explanation. Van T. Junkins &
Assocs. V. U.S. Indus., Inc., 736 F.2d 656, 657-68 (11th
Cir. 1984) . While Plaintiff states in his response that the
deposition testimony means that he never spoke directly to
Mr. Diego, Plaintiff fails to identify any testimony in his
deposition stating that he called, but did not reach, Mr.
Diego. While Plaintiff now seeks to hedge on his earlier
unequivocal denial by stating that the chronology of events
indicates that he attempted to call Mr. Diego, this
explanation in the face of such a glaring inconsistency is
insufficient to convince the Court that it should consider
this portion of Plaintiff's declaration when assessing
Defendants' Motion for Summary Judgment, Therefore,
Defendants' objection is
SUSTAINED IN
PART and the Court
will disregard that portion of Plaintiff's declaration.
16
However, the Court does not agree with Defendants that
Plaintiff's statement concerning the lack of any problem to
report to Mr. Diego is inadmissible. Plaintiff's belief
that there was no problem to report explains why he declined
to contact Mr. Diego. It is not being offered to prove the
lack of any problem, or as an opinion concerning the absence
of any problem. Rather, it simply explains Plaintiff's
reasoning behind his decision not to contact Mr. Diego. As
a result, it is not hearsay, is based on Plaintiff's
personal knowledge, and admissible.
With respect to paragraph 8, Plaintiff states the he
believed Mr. Diego had been seeking to fire Plaintiff
because of Plaintiff's age and previous health issues.
(Doc. 31, Ex. AA ¶ 8.) Defendant objects to this statement
on the grounds that it is simply Plaintiff's belief and not
based on any personal knowledge. (Doc. 47 at 8.) However,
Plaintiff alleges in his complaint that Defendants
unlawfully retaliated against him after he complained of
discrimination, which requires him to establish that he
subjectively believed he was being discriminated against at
the time he began complaining of the discrimination. See
Little v. United Tech., 103 F'.3d 956, 959-60 (11th Cir.
1997) . Therefore, this evidence is clearly admissible
because it explains Plaintiff's subjective belief that he
17
was
the target of unlawful discrimination.
Accordingly,
Defendants' objection is OVERRULED.
With respect to paragraph 14, Plaintiff states that
"Rhonda Butler took over [his] job six days after Plaintiff
left under FMLA leave. While I was out on FMLA leave, Ms.
Gould and Patrick Byrnes, regional vice president at NFl,
repeatedly telephoned and harassed me about my need to come
to meetings that were being held." (Doc. 31, Ex. A1 ¶ 14.)
Defendants object to the portion of the statement concerning
Ms. Butler because Plaintiff lacks personal knowledge of
that fact. (Doc. 47 at 8.) Also, Defendants object to the
remainder of the statement on the grounds that it is
hearsay, and Plaintiff's characterization of the conduct as
harassment is both conclusory and an improper lay opinion.
(Id. at 8-9.)
First, if Plaintiff has knowledge of who replaced him,
he is qualified to testify as to that fact. Defendants'
only argument on this score is that Plaintiff could not have
personal knowledge of this fact because he was on FMLA
leave. (Id. at 8.) However, there are a myriad of ways
Plaintiff could learn that Ms. Butler replaced him six days
after he took FMLA leave. Moreover, Plaintiff's belief that
he was replaced so soon by a younger employee is important
to the analysis of whether he subjectively believed he was
18
the target of unlawful discrimination when he first
complained of discrimination. Therefore, this statement is
clearly admissible and can be used by Plaintiff in
opposition to Defendants' Motion for Summary Judgment.
Second, Plaintiff's statement concerning Ms. Gould and
Mr. Byrnes calling him while on FMLA leave is admissible.
At the very least, this statement is not hearsay because it
is an admission by a party opponent.
801(d) (2) .
Fed. R. Evid.
Also, Plaintiff is competent to testify as to
whether he felt harassed by these phone calls.
event,
In any
the entirety of paragraph 14 is admissible.
Accordingly, Defendants' objection is OVERRULED.
With respect to paragraphs 15 and 17, Plaintiff states
that 'Ms. Gould and Mr. Byrnes kept demanding that I come to
the meetings" (Doc. 31, Ex. A.
T 15), and that "Ms. Gould
advised me that the company wanted me 'out' and explained
that the company was tired of paying my medical bills, and
wanted to 'get rid' of me" (Id. ¶ 17) . Defendants contend
that these statements are inadmissible hearsay. (Doc. 47 at
9.) However, these statements both show Plaintiff's
subjective belief that he was the target of unlawful
discrimination and are admissions by a party opponent.
Therefore, both statements are admissible and may be used in
19
response to Defendants' Motion for Summary Judgment.
Accordingly, Defendants objection is OVERRULED.
B. Declaration of Debra Cribbs
Defendants object to paragraphs 3, 7, 9, and 10 of
Debra Cribb's declaration. (Id. at 2-11.) With respect to
paragraph 3, Mrs. Cribbs states that "Tom Diego LI
telephoned our home and spoke very loudly to my husband."
(Doc. 31, Ex. BB
I
3.)
Defendants contend that this
statement is inadmissible hearsay.
(Doc. 47 at 9.)
However, this statement simply relates that Mr. Diego was
speaking so loudly that Mrs. Cribbs could hear him speaking.
This is a statement based on personal knowledge and not
offered as evidence of what Mr. Diego said, only how he said
it. Therefore, it is clearly admissible and Defendants'
objection is OVERRULED.
With respect to paragraph 7, Mrs. Cribbs states that
Ms. Gould and Mr. Byrnes repeatedly telephoned Plaintiff
while he was on FMLA leave.
(Doc. 31, Ex. BE
Defendants argue that this is inadmissible hearsay.
1
7.)
(Doc.
47 at 10.) However, the statement is not hearsay because it
merely documents Mrs. Cribbs's personal observation that Ms.
Gould and Mr. Byrnes were calling Plaintiff while he was on
FMLA leave. Accordingly, Defendants objection is OVERRULED.
NK
With respect to paragraphs 9 and 10, Mrs. Cribbs states
that she was a "former Human Resource Manager at [the
predecessor corporation to Defendant NFl]" (Doc. 31, Ex. 3B
¶ 9) and "Ii] f an employee complained about unfair treatment
related to age or health issues, it was company policy to
document it in writing" (id. ¶ 10). Defendants maintain
that these statements are inadmissible because Mrs. Cribbs's
past experience is irrelevant to the present lawsuit and her
testimony is an inappropriate opinion not based on any
personal knowledge of the facts in this case.
10.)
(Doc. 47 at
In response, Plaintiff contends that Mrs. Cribbs
testimony is admissible because she has personal knowledge
concerning Defendants' human resources procedures based on
her past employment with the company that preceded NFl.
On this score, Defendants are correct. Mrs. Cribbs is
not in a position to testify concerning what procedures were
in place at the time the alleged unlawful discrimination
took place. Quite simply, she lacks any personal knowledge
of Defendants' internal procedures regarding discrimination
complaints as they related to Plaintiff, rendering this
21
testimony inadmissible.
Accordingly, Defendants' objection
is SUSTAINED and the Court will disregard that statement
. 2
C. Declaration of Reginald Pero
Defendants object to paragraphs 6, 7, 8, 9, 10, 11, and
16 of Reginald Pero's declaration. With respect to
paragraph 6, Mr. Pero states that "Patrick Byrnes was
constantly asking me to give Mr. Cribbs disciplinary writeups. As far as I knew, he did not deserve these write-ups
for performance or any other reasons."
(Doc. 31, Ex. CC
Defendants object to the first portion of that
¶ 6.)
statement on the grounds that it is inadmissible hearsay,
and the second portion on the grounds that it is conclusory
and not based on Mr. Pero's personal knowledge. (Doc. 47 at
11-12.)
The portion of the statement regarding Mr. Byrnes
requesting Mr. Pero discipline Plaintiff is clearly
admissible because it is not being offered to prove the
truth of the matter asserted. Rather, this statement
explains why Mr. Pero disciplined Plaintiff for his work
performance. Therefore, it is not hearsay and is
admissible. As to the second portion of the statement, Mr.
Pero is qualified to testify as to his knowledge of whether
2
In his response, Plaintiff withdrew Mrs. Cribbs's phone
records as an exhibit. (Doc. 51 at 11 n.1.) Accordingly,
the Court will also disregard this exhibit.
22
any other manager received disciplinary write-ups for
similar conduct. While Mr. Pero's statement may lack
credibility due to his inability to monitor all managers
across all shifts, his statement that he did not know of any
other managers who were disciplined for similar conduct is
well within the realm of his personal knowledge.
Accordingly, Defendants' objection to this statement is
OVERRULED.
With respect to paragraph 7, Mr. Pero states that Mr.
Byrnes told him "to do everything you can documenting [Mr.
Cribbs] so we can get him out of here."
¶ 7.)
(Doc. 31, Ex. CC
In addition, Mr. Pero relates that he "was asked to
document, document, document Mr. Cribbs' performance and []
was not asked to do this with other shift supervisors."
(Id.) Defendants object to these statements on the grounds
that they are inadmissible hearsay. However, both
statements are clearly admissible under Rule 801(d) (2) as
admissions by a party opponent. Moreover, the first portion
is not hearsay because it simply explains why Mr. Pero
documented Mr. Cribbs's alleged poor work performance. In
any event, the statements are admissible and can be used by
Plaintiff is responding to Defendants' Motion for Summary
Judgment. Accordingly, Defendants' objection is OVERRULED.
23
With respect to paragraph 8, Mr. Pero
states
that
"[t]he write-up that I gave Mr. Cribbs for sending an
employee home was not justified. As a shift manager, Mr.
Cribbs was in control of the shift and was allowed to send
people home." (Doc. 31, Ex. CC ¶ 8.) Defendants contend
that this statement contradicts Mr. Pero's prior deposition
testimony where he stated that managers must first contact
him prior to sending an employee home. (Doc. 47 at 12-13.)
According to Defendants, these statements are in direct
conflict and the Court should disregard the statement in Mr.
Pero's declaration. (Id.)
The Court, however, does not agree that these
statements directly contradict each other. Mr. Pero also
stated in paragraph 8 that
"[olther managers did the same
thing but neither they nor any other manager to my knowledge
was written-up for this sort of conduct."
J 8.)
(Doc. 31, Ex. CC
Therefore, while Mr. Pero stated in his deposition
that Defendants' policy was for shift supervisors to provide
notice that they were sending an employee home, his
declaration states that shift supervisors generally did not
receive any discipline for violations of this policy. Read
in its entirety, paragraph B does not directly contract Mr.
Pero's earlier deposition testimony. Accordingly,
Defendants' objection is OVERRULED.
24
With respect to paragraph 9, Mr. Pero states the "[t]he
write up by me for Mr. Cribbs taking comp time was also
unjustified. . * Thomas Ruarks leaves every Sunday morning
and Chris Williams leave [sic] early almost every morning
without being written up or given any other discipline."
(Doc. 31, Ex. CC ¶ 9.) Defendants argue that the first
portion of Mr. Pero's statement contradicts his earlier
deposition testimony, while the second portion is not based
on Mr. Pero's personal knowledge. (Doc. 47 at 13-15.)
In his deposition, Mr. Pero stated that the common
procedure for taking camp time was for the shift supervisor
to notify their manager in advance. (Id. at 14.) As
discussed above, however, this does not render the two
statements contradictory. Again, Mr. Pero's declaration
only states that, to the best of his knowledge, no other
supervisors received discipline for similar conduct, not
that Plaintiff failed to follow the appropriate procedures.
Also, the statement is neither conclusory nor an improper
opinion.
It is based on Mr. Pero's personal experience
while serving as Plaintiff's manager.
As to the second
portion of the statement, Mr. Pero may testify as to whether
he knew of any other employees who failed to follow the
appropriate comp time policy, but were not disciplined by
Defendants. While Mr. Pero may have overstepped his
25
personal knowledge by speaking to Defendants' employment
practices subsequent to the termination of Mr. Pero's
employment, the Court need not ignore the entirety of his
deposition, but will limit its scope to the time when Mr.
Pero was employed by Defendants. 3 Subject to this
limitation, Defendants objection is OVERRULED.
With respect to paragraph 10, Mr. Pero states that "[a]
write-up about pallets not run through the woodpecker and
being blown down was not justified because Mr. Cribbs ran
into issues with the customer's systems that were beyond his
control." (Doc. 31, Ex. CC 10.) Defendants contend that
this statement contradicts Mr. Pero's prior deposition
testimony and should be disregarded. (Doc. 47 at 15.)
Similar to the discussion above, the Court also finds that
this statement by Mr. Pero does not contradict his earlier
deposition testimony. Accordingly, Defendants' objection to
paragraph 10 is OVERRULED.
With respect to paragraph 11, Mr. Pero states that "I
was told that the purpose of [the 45-day improvement plan]
was to give it to Mr. Cribbs, but I was told that we could
not give it to just one person, so we had to give it to all
the managers." (Doc. 31, Ex. CC ¶ 11.) Defendants maintain
Indeed, Plaintiff recognized as much and agreed to strike
any reference by Mr. Pero to incidents that occurred after
Mr. Pero left Defendants' employ. (Doc. 52 at 14 n.2.)
91
1.1
that this statement is inadmissible hearsay.
15.)
(Doc. 47 at
However, this statement is clearly admissible as an
admission by a party opponent.
Fed. R. Evid. 801(d) (2).
Accordingly, Defendants' objection is OVERRULED.
With respect to paragraph 16, Mr. Pero states that 'Mr.
Cribbs was a competent manager and should not have been
terminated.
His performance was comparable to the
performance of any other manager."
(Doc. 31, Ex. CC J 16.)
Defendants object to the first portion of that statement on
the grounds that it is only Mr. Pero's personal belief, is
improper opinion testimony, and is conclusory.
16.)
(Doc. 47 at
Defendants object to the second portion on the grounds
that Mr. Pero lacks personal knowledge of Mr. Cribbs's
performance in relation to other managers. (Id.)
The first portion of Mr.
Pero's statement is
admissible. As Plaintiff's supervisor, Mr. Pero is uniquely
qualified to testify as to whether he thought Mr. Cribbs's
work performance warranted his termination. With respect to
the second portion, it is admissible to the extent Mr. Pero
has personal knowledge of the work performance of employees
that held positions comparable to Plaintiff's. That is, Mr.
Pero's experience working for Defendants gives him personal
knowledge of Plaintiff's work performance as compared to
similarly situated co-workers whom Mr. Pero supervised while
27
employed by Defendants.
Mr. Pero would lack sufficient
knowledge to base any comparison between Plaintiff and
employees whom Mr. Pero did not supervise. Subject to this
limitation, Defendants' objection to this paragraph is
OVERRULED.
D. Declaration of Jeremy Walker
Defendants object to paragraphs 4, 6, 7, 8, 10, 11, and
12 of Jeremy Walker's declaration. (Doc. 47 at 17-20.)
With respect to paragraph 4, Mr. Walker states the
following:
When Mr. Cribbs would work the night shift and
then have to come in for managers' meetings the
next day, Mr. Cribbs was allowed to take comp time
to make up for having to come in during the day.
He would take comp time the following night shift,
for instance, and ask me or the Allocator, Ruth
Rector, to take over for him. This sort of
arrangement happened once a month or so, and it
was just understood by Mr. Cribbs' superiors that
this would happen. On several such occasions, I
would hear Mr. Cribbs' direct supervisor, Tom
Diego, tell Mr. Cribbs that 'once everything gets
started, leave these other guys in charge and you
go home and get some rest.' Otherwise, Mr. Cribbs
would be working all night without getting any
sleep because he would have to come to the
Distribution Center during the day time.
(Doc. 31, Ex. DD ¶ 4.) Defendants argue that this statement
contains inadmissible hearsay, is mere speculation, and
contains improper opinion testimony. (Doc. 47 at 17-18,)
However, Mr. Diego's alleged statement is clearly one
against Defendants' interests and admissible under Rule
28
801(d) (2).
Furthermore, Mr. Walker may testify as to his
understanding of Mr. Cribbs's reasons for routinely taking
comp time following manager's meetings. Indeed, Mr. Walker
states that he was often required to cover Mr. Cribbs's
duties when he took camp time. Finally, Mr. Walker can
easily determine whether Plaintiff was at work for such an
extended period of time that he was unable to go home and
rest. Accordingly, Defendants' objection to paragraph 4 is
OVERRULED.
With respect to paragraph 6, Mr. Walker states that "it
was clear to me that Mr. Cribbs' supervisor, Tom Diego, was
trying to lower the [Labor Management System] percentage for
Mr. Cribbs' shift." (Doc. 31, Ex. DD
Management System ("LMS")
I 6.) The Labor
quantified productivity, providing
a higher percentage for more efficient shifts. (Id.)
Defendants contend that this statement is an improper
opinion, rank conjecture, and unsupported. (Doc. 47 at 18.)
However, the remainder of Mr. Walker's declaration supports
his statement by explaining specifically how Mr. Diego
lowered Plaintiff's LMS percentage. (Doc. 31, Ex. DD J 6.)
Therefore, Mr. Walker's statement concerning his opinion of
Mr. Diego's action is adequately supported by evidence in
the record. Accordingly, paragraph 6 is admissible and
Defendants' objection is OVERRULED.
29
With respect to paragraph 7,
Mr.
Walker states that
"[a] nother way LMS percentage was reduced for our shift was
by requiring the person filling forklift gas tanks to log on
to the LMS an hour and a half before the shift even began.
This downtime was attributed to our shift and reduced our
LMS percentage." (Doc. 31, Ex. DD 7.) Defendants again
object to this statement on the grounds that it is
conclusory, conjecture, and speculation.
19.)
(Doc. 47 at 18-
As discussed above, however, Mr. Walker has personal
knowledge of the requirements Mr. Diego placed on
Plaintiff's shift and how these requirements reduced the LMS
percentage. Accordingly, Defendants objection is OVERRULED.
With respect to paragraph 10, Mr. Walker states that
"Tom Diego, was responsible for making these decisions about
logging onto the LMS and it was clear to me that Mr. Diego
was trying to keep our shift's percentage low. It was clear
to me that Tom Diego was targeting Mr. Cribbs and trying to
reduce the percentages and productivity of Mr. Cribbs'—and
my—shift." (Doc. 31, Ex. DD ¶ 10.) Defendants object to
this statement on the grounds that it is conclusory and not
based on Mr. Walker's personal knowledge. (Doc. 47 at 19.)
The first portion of this statement is admissible because
Mr. Walker possesses personal knowledge concerning the LMS
and what decisions Mr. Diego made that served to reduce the
30
LMS percentage of his shift.
However, Mr. Walker's
statement that Mr. Diego was specifically targeting
Plaintiff is inadmissible. This statement amounts to little
more than Mr. Walker's subjective belief as to Mr. Diego's
intentions and, without more, is inadmissible. Therefore,
Defendants' objection is GRANTED IN PART and DENIED IN PART.
With respect to paragraph 11, Mr. Walker states that
"[a] t one time, employees were cheating on the LMS for the
purpose of getting their percentages higher. Mr. Cribbs had
nothing to do with this and he had no knowledge that I told
other employees how to do this." (Doc. 31, Ex. DD ¶ 11.)
Defendants object to this statement on the grounds that Mr.
Walker has no personal knowledge of his fellow employee's
actions and he fails to explain how he could have observed
or perceived those facts. (Doc. 47 at 19.) As to the first
portion of Mr. Walker's statement, there is little doubt
that, given his experience with his fellow co-workers, Mr.
Walker possesses personal knowledge sufficient to form a
belief as to whether they were cheating the LMS. However,
Mr. Walker is unqualified to testify that Plaintiff had no
knowledge that Mr. Walker told other employees how to cheat
the system. Accordingly, Defendants' objection is SUSTAINED
IN PART and the Court will disregard this latter portion of
Mr. Walker's declaration.
31
With respect to paragraph 12 Mr. Walker
states
the
following:
A day or two after Mr. Cribbs went to the
hospital, Rhonda Butler was announced as our new
weekday nights shift supervisor, taking Mr.
Cribbs' position. I was in shift meeting and after
that, I was pulled in the General Manager's office
w/ Deborah Gould, Tom Diego, and Rhonda Butler and
told that I either went along with Rhonda Butler
being in charge or I didn't, and that they wanted
me to go out there and increase my production. At
least twice a week after this initial meeting, Mr.
Diego would pull me into his office and tell me
something very similar. On each of these
occasions, I felt my job was being threatened, and
I told Deborah Gould on at least one occasion that
I thought I was being harassed.
(Doc. 31, Ex. DD ¶ 12.) Defendants object to this statement
on the grounds that it is inadmissible hearsay. (Doc. 47 at
20.) Also, Defendants object to Mr. Walker's statement that
he informed
Ms.
Gould of his belief that he was being
harassed as containing only opinions and beliefs. (Id.)
First, the statements by Ms. Gould and Mr. Diego are
admissible as admissions by a party opponent. Fed. R. Evid.
801(d) (2). However, Mr. Walker's statement concerning his
belief that his job was being threatened and that he
informed Ms. Gould he felt harassed is inadmissible. This
statement is not hearsay, but it is completely irrelevant to
this case. Quite simply, that statement has no bearing on
whether Plaintiff was subject to unlawful discrimination by
Defendants, but only serves to portray Defendants in a bad
32
light by suggesting that Mr. Walker was subject to
unpleasant working conditions. Accordingly, Defendants'
objection to this paragraph is GRANTED IN PART and DENIED IN
PART.
IV. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
As evidenced above, the parties have to some degree
successfully attacked the factual allegations upon which
their respective opponent argued and briefed Defendants'
Motion for Summary Judgment. The now fractured record
leaves this Court with the daunting task of attempting to
piece together the fragments, determine the facts in the
light most favorable to Plaintiff, and apply those facts to
the parties' arguments. Rather than pursue this treacherous
course, the Court finds it prudent to permit the parties to
rebrief those issues in light of the evidentiary rulings
contained in this order.
Therefore, Defendant shall have
thirty days
from the
date of this order to ref ile their Motion for Summary
Judgment in accordance with the Court's evidentiary rulings.
Following service of the new motion, all normal briefing
deadlines will apply. Both parties should be aware,
however, that the Court will not accept any motion or
response that incorporates by reference any factual
allegation or argument contained in an earlier filing. Each
33
motion and response should be a stand-alone filing that
independently contains all the factual allegations and
arguments that the filing party wishes the Court to
consider.
CONCLUSION
For the foregoing reasons, Plaintiff's Motions to
Strike Affidavits (Doc. 33; Doc. 43) are DISMISSED AS MOOT,
Plaintiff's Motion to Strike Portions of Defendants'
Statement of Undisputed Material Facts (Doc. 32) is
IN PART
and DENIED IN PART,
GRANTED
Plaintiff's Motion to Strike
Defendants' Supplemental Statement of Material Facts (Doc.
51) is GRANTED, and Defendants' Motion to Strike Portions of
Declarations (Doc. 47) is GRANTED
PART.
IN PART
and DENIED IN
In addition, Defendants' Motion for Summary Judgment
(Doc. 27) is also DISMISSED and Defendants shall have thirty
days from the date of this order to ref ile their motion in
accordance with the Court's evidentiary rulings.
SO ORDERED this Jfiay of September 2013.
WILLIAM T. MOORE,
UNITED STATES DIST ICT COURT
SOUTHERN DISTRICT OF GEORGIA
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