Howard v. Balon Corporation

Filing 27

ORDER denying 20 Plaintiffs Motion to Strike InadmissibleEvidence in Defendants Motion for Summary Judgment and 25 Plaintiffs Motion to Strike Affidavit in Defendants Reply to Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 11/30/16. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LORAINE HOWARD,
Plaintiff,
vs.
BALON CORPORATION,
Defendant.

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Case No. CIV-15-737-D

ORDER
Before the Court are Plaintiff’s Motion to Strike Inadmissible Evidence in
Defendant’s Motion for Summary Judgment [Doc. No. 20] and Plaintiff’s Motion to Strike
Affidavit in Defendant’s Reply to Motion for Summary Judgment [Doc. No. 25]. Defendant
has timely opposed both Motions, which are fully briefed.1
By the first Motion, Plaintiff seeks to exclude from the summary judgment record two
exhibits submitted by Defendant from its personnel records regarding Plaintiff: Exhibit
No. 6, Employee Activity Report [Doc. No. 16-6]; and Exhibit No. 8, Employee Attendance
Details [Doc. No. 16-8]. Plaintiff contends these exhibits contain entries that summarize
alleged observations about Plaintiff and statements by or about her, and the entries lack
authentication and constitute inadmissible hearsay.
By the second Motion, Plaintiff seeks to exclude the Affidavit of Holly Siderits, which
Defendant submitted in response to Plaintiff’s first Motion and in reply to her summary
judgment response (which incorporates the Motion). Ms. Siderits is a human resources
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Plaintiff did not file reply briefs within the time period authorized by LCvR7.1(i).

representative for Defendant, and she explains in her affidavit how Defendant’s personnel
files are compiled and maintained. She also provides information to authenticate Exhibit
Nos. 6 and 8, and show they are business records of Defendant that are part of Plaintiff’s
personnel file on which Defendant relied in its employment decisions. Plaintiff contends
Ms. Siderits’ affidavit was improperly presented in a reply brief because it does not respond
to new factual matter raised in Plaintiff’s response.
Plaintiff’s hearsay objection to Defendant’s summary judgment exhibits lacks merit.2
The materials that may be considered in ruling on a motion for summary judgment are
determined by Fed. R. Civ. P. 56, not the Federal Rules of Evidence. A permissible
objection under Rule 56 is “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). On the
present record, it appears Exhibit Nos. 6 and 8 were part of Defendant’s personnel records
regarding Plaintiff. The information contained in them could be presented from the
admission of the records or the testimony of competent witnesses. Thus, hearsay is not a
viable objection.
Similarly, Plaintiff’s objection to Ms. Siderits’ affidavit is unsupported by legal
authority and lacks merit. Plaintiff concedes that “[a]ffidavits and declarations may
accompany a reply brief when they relate to new disputes arising during briefing.” See Pl.’s
Mot. Strike Aff. [Doc. No. 25], p.2 (citing cases). The Court recognizes that the submission
of new material in a summary judgment reply brief is discouraged, but it may properly be

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Ms. Siderits’ affidavit effectively moots Plaintiff’s authentication objection.

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considered if the party opposing summary judgment is given an opportunity to respond. See
Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005) (“Generally, the nonmoving
party should be given an opportunity to respond to new material raised for the first time in
the movant’s reply.”); Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998).
Plaintiff initially responded by filing her Motion to Strike Affidavit. She has not requested
a further opportunity to respond, even though Defendant’s Motion for Summary Judgment
has been fully briefed for some time. Accordingly, the Court finds that Ms. Siderits’
affidavit may properly be considered, if necessary, in ruling on Defendant’s Motion for
Summary Judgment.3
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike Inadmissible
Evidence in Defendant’s Motion for Summary Judgment [Doc. No. 20] and Plaintiff’s
Motion to Strike Affidavit in Defendant’s Reply to Motion for Summary Judgment [Doc.
No. 25] are DENIED.
IT IS SO ORDERED this 30th day of November, 2016.

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A district court avoids the issue identified in Beaird if the court does not rely on new material
included in a reply brief. See Green, 420 F.3d at 1197 & n.7; Beaird, 145 F.3d at 1164-65; see also Jencks
v. Modern Woodmen, 479 F.3d 1261, 1268-69 (10th Cir. 2007).

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