Abbott v. Elwood Staffing Servs., Inc.
| Decision Date | 31 July 2014 |
| Docket Number | Case No. 1:12–CV–2244–VEH. |
| Citation | 44 F.Supp.3d 1125 |
| Parties | Randi A. ABBOTT, Plaintiff, v. ELWOOD STAFFING SERVICES, INC., and Honda Manufacturing of Alabama, LLC, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Russell P. Parker, Russell P. Parker Attorney at Law, Birmingham, AL, for Plaintiff.
David J. Middlebrooks, Lehr Middlebrooks & Vreeland PC, Kathryn Morris Willis, Marcel L. Debruge, Ronald D. Scott Williams, Burr & Forman LLP, Birmingham, AL, for Defendants.
This is a civil action brought by the plaintiff, Randi A. Abbott, against the defendants, Elwood Staffing Services, Inc. (“Elwood”), and Honda Manufacturing of Alabama, LLC (“HMA”). (Doc. 53 at 1). The Third Amended Complaint was filed on October 24, 2013. It alleges the following claims against both Elwood and HMA: “Failure to Accommodate on the Basis of Pregnancy/Sex–Pregnancy Discrimination Act/Title VII” (Count One); “Unlawful Termination of Employment on the Basis of Pregnancy/Sex–Pregnancy Discrimination Act/Title VII” (Count Two); “Failure to Accommodate on the Basis of Disability–Americans with Disabilities Act” (Count Three); “Unlawful Termination on the Basis of Disability–Americans with Disabilities Act” (Count Four); “Retaliation on the Basis of Pregnancy/Sex–Pregnancy Discrimination Act/Title VII” (Count Five); “Retaliation on the Basis of Disability–ADA” (Count Six); and “Retaliation on the Basis of Race–Title VII/Section 1981” (Count Seven). (Doc. 53 at 2–13). As to HMA alone, the Third Amended Complaint alleges “Discrimination on the Basis of Race–Title VII/Section 1981” (Count Eight). Against Elwood alone, the Third Amended Complaint alleges “Retaliatory Discharge: § 25–5–11.1, Alabama Code 1975” (Count Nine). All counts arise out of the plaintiff's employment at an HMA facility.
The case comes before the court on the motions for summary judgment filed by the defendants. (Docs. 57, 60). Also before the court is Elwood's objections to portions of the evidence submitted by the plaintiff in opposition to the motions for summary judgment (doc. 67), and HMA's motion to strike portions of that evidence (doc. 69). For the reasons stated herein, Elwood's objections and HMA's motion to strike will both be treated as objections and will be SUSTAINED in part and OVERRULED in part. In addition, the motions for summary judgment will be GRANTED, and this case will be DISMISSED.
As explained above, and in this court's order of August 9, 2013 (doc. 50), the court treats both the objections, and the motion to strike, as objections under Federal Rule of Civil Procedure Rule 56(c)(2). Pursuant to that rule, “[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.” Fed.R.Civ.P. 56(c)(2). The advisory committee's note to Rule 56(c)(2) provide that:
[An] objection [under Rule 56(c)(2) ] functions much as an objection at trial.... The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.
Fed.R.Civ.P. 56 advisory committee's note to 2010 amendments (emphasis added); see also, Priest v. U.S. Sec. Associates Inc., 5:11–CV–03938–HGD, 2014 WL 800900 at *1 (N.D.Ala. Feb. 28, 2014) (Davis, M.J.); Riley v. Univ. of Alabama Health Servs. Found., P.C., 990 F.Supp.2d 1177, 1186–87 (N.D.Ala.2014) (Hopkins, J.); Peeler v. KVH Indus., Inc., 8:12–CV–1584–T–33TGW, 2013 WL 3871420 at *8 (M.D.Fla. July 25, 2013)on reconsideration in part, 8:12–CV–1584–T–33TGW, 2013 WL 5289733 (M.D.Fla. Sept. 19, 2013) (Covington, J.); In re Gregg, 11–40125–JTL, 2013 WL 3989061 *3 (Bankr.M.D.Ga. July 2, 2013) (Laney, B.J.); Gates v. HPA Subway, Inc., CIV.A. 11–00637–KD–B, 2012 WL 5877978 at *2 n. 5 (S.D.Ala. Nov. 21, 2012) (DuBose, J.).
Despite the clear burden on the plaintiff, she writes:
“The court is capable of sifting through evidence, as required by the summary-judgment standard, without resort to an exclusionary process, and the court will not allow the summary-judgment stage to degenerate into a battle of motions to strike.”Mann v. Darden, Civil Action No. 2:07cv751MHT (WO) (M.D.Ala, July 6, 2009). Plaintiff, therefore, is not submitting a line-by-line response to each objection raised by [d]efendants but merely providing the Court with the following to assist the Court in sifting through the evidence.
(Doc. 70 at 1). As will be shown below, the plaintiff's failure to address the defendants' objections “line-by-line,” almost always equates to a failure to show that the proffered evidence is admissible as presented or to explain the admissible form of the evidence that is anticipated. In its discussion of the evidence, the court will note where that has happened.
Similarly, the defendants sometimes argue that certain pieces of evidence are inadmissible, but never cite to specific portions of the evidence—instead focusing only on the “facts” submitted by the plaintiff which cite such evidence. Without a specific citation, the court cannot determine what, if anything, needs to be stricken. At other times, the defendants argue that some evidence does not support the proposition for which it is cited. While that may be a reason for the court not to adopt that proposition, it is not a reason to strike the evidence. These circumstances, too, will be noted by the court in its examination of the evidence.
As part of her submissions in opposition to the motions for summary judgment, the plaintiff submits several pages of handwritten notes, written by her, which memorialize the events of several days in July and August of 2011. (Doc. 64–2 at 1–4). Both defendants object to the consideration of the notes, in part, because they are hearsay, and because they cannot be made admissible at trial. (Doc. 67 at 3–4; doc. 69 at 5, 7; doc. 71 at 3). The plaintiff does not respond to the argument that the notes are hearsay, stating only:
Elwood contends that [p]laintiff's notes are not admissible. A review of the document demonstrates, this same document was an exhibit in [p]laintiff's deposition. Plaintiff authenticated this document at her deposition. Honda contends that the notes are irrelevant to proving what caused [p]laintiff's injury, asserting that [p]laintiff is not a doctor. Plaintiff did not have to be a doctor to realize she began bleeding from her vagina while straining while working, as the notes describe.
(Doc. 70 at 2).
The plaintiff has not shown that the notes, and the statements therein, are either not hearsay, or fall within some exception to the hearsay rule. Thus, the plaintiff has failed to satisfy her burden “to show that the material is admissible as presented or to explain the admissible form that is anticipated,” Fed.R.Civ.P. 56 advisory committee's note to 2010 amendments (emphasis omitted).
In addition, the court has reviewed the notes and affirmatively finds that they are hearsay. Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). “Hearsay is inadmissible unless the statement is not hearsay as provided by Rule 801(d), or falls into one of the hearsay exceptions enumerated in Rules 803, 804, and 807.” United States v. Baker, 432 F.3d 1189, 1203 (11th Cir.2005). The notes fall squarely within the definition of hearsay.
The general rule is that inadmissible hearsay cannot defeat a motion for summary judgment where there is no indication that it is reducible to a form that would be admissible at trial.See Pritchard v. Southern Co. Services, 92 F.3d 1130, 1135, amended in part on rehearing, 102 F.3d 1118 (11th Cir.1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997).
Wyant v. Burlington N. Santa Fe R.R., 210 F.Supp.2d 1263, 1275–76 (N.D.Ala.2002) (Ott, M.J.). Further, portions of the notes constitute double hearsay. For double hearsay to be admissible, “ ‘each part of the combined statements [must] conform [ ] with an exception to the hearsay rule.’ ” United Technologies Corp. v. Mazer, 556 F.3d 1260, 1280 (11th Cir.2009) (quoting Fed.R.Evid. 805 ). Further still, the notes are unsworn, and the court does not consider unsworn statements. Dudley v. City of Monroeville, 446 Fed.Appx. 204, 207 (11th Cir.2011) () (citing Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 27 (11th Cir.2003) ).
The objections to the notes (doc. 64–2 at 1–4) are SUSTAINED. They will be stricken.1
In response to the motion for summary judgment the plaintiff proffers document 64–3, which includes notes made, at least in part, by Alan Balmer, Elwood's Vice–President of its Workforce Solutions division. (Doc. 39–2 at 5(7)).2
HMA and Elwood argue that the entire exhibit is unauthenticated, and therefore should not be considered. In its reply brief, HMA cites to Saunders v. Emory Healthcare, Inc., 360 Fed.Appx. 110, 113 (11th Cir.2010), where the Eleventh Circuit, citing to Fed.R.Civ.P. 56(e) as it existed at that time, wrote:
To be admissible in support of or in opposition to a motion for summary judgment, a document must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence. 10 A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2722, at 382–84 (3d ed.1998).
Saunders, 360 Fed.Appx. at 113.
First, Balmer testified in his deposition that he created this document, but only down to the black...
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