Ali v. City of Clearwater
| Decision Date | 07 February 1996 |
| Docket Number | No. 92-790-CIV-T-17A.,92-790-CIV-T-17A. |
| Citation | 915 F. Supp. 1231 |
| Parties | Luqman Abdul ALI, Plaintiff, v. CITY OF CLEARWATER, a municipal corporation, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
COPYRIGHT MATERIAL OMITTED
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Jawdet I. Rubaii, Law Office of Jawdet I. Rubaii, Clearwater, FL, for plaintiff.
Mark A. Hanley, Deborah Susan Crumbley, Thompson, Sizemore & Gonzalez, P.A., Tampa, FL, for defendant.
ORDER ON DEFENDANT'S MOTIONS TO STRIKE AND FOR SUMMARY JUDGMENT
This cause comes before the Court on the following motions, responses, and supporting material:
Plaintiff Luqman Abdul Ali filed an amended complaint on December 4, 1992, against Defendant City of Clearwater (hereinafter the City) after this Court partially granted the City's motion to dismiss Ali's original complaint. Ali v. City of Clearwater, 807 F.Supp. 701 (M.D.Fla.1992) (). In Count I, Ali alleges handicap discrimination pursuant to § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (1988) (). Count II asserts intentional handicap discrimination under the Rehabilitation Act (). In Count III, Ali contends handicap discrimination under 42 U.S.C. § 1983 (1988) and contrary to 29 U.S.C. § 794 (). Finally, Count V alleges denial of equal protection pursuant to 42 U.S.C. § 1983 because of his handicap.
According to the amended complaint, Ali had worked for the City as a Maintenance Worker I since October 16, 1978. On July 27, 1988, during the time of Ali's employment with the City, Ali suffered injury in an off-duty hit and run accident. At the time the accident occurred, the City had assigned Ali to beach maintenance duty. After Ali's accident, he returned to the same duty.
In November, 1989, Ali was transferred from beach duty to street work. Still classified as a Maintenance Worker I, Ali complained to his crew leader that the transfer caused substantial aggravation to his existing injuries and created a new injury. The amended complaint states that Ali's crew leader reported Ali's injuries to the Supervisor I on at least three (3) occasions. The Supervisor I finally notified Supervisor II, who notified the assistant superintendent. The City ultimately placed Ali on light duty work.
Serving as the parties' employment contract, the Collective Bargaining Agreement (CBA) required Ali to obtain, upon the City's request, "a statement from competent medical authority substantiating the continuance of ... illness" whenever he was absent for at least three (3) consecutive days. CBA at 22 (Docket No. 26). Therefore, to substantiate his injuries and aggravation, Ali provided the City with a letter and report from Dr. Pestinger, Ali's chiropractor. Subsequently, however, the City demanded that Ali obtain another medical certificate at his expense before it would allow Ali to continue working. The City indicated that it needed a certificate from a medical doctor, not a chiropractor. In response, Ali notified the City that he could not afford another medical certificate. The City ultimately terminated Ali on April 27, 1990.
Basically, Ali avers that the requirement to provide a medical certificate was a pretext to discriminate against him solely on the basis of his handicap. Because he was, at all times, unable to afford the medical certificate, Ali alleges that the City wrongfully terminated him.
The Court will first address the City's motion to strike portions of paragraphs seven, eight, ten, eleven, and twelve from one of the affidavits submitted by Ali to oppose the City's motion for summary judgment. The affiant at issue is Dr. Stephen Beke, a certified chiropractor who purports to have medically examined Ali.
A party may support or oppose a motion for summary judgment by submitting an affidavit that conforms with Rule 56(e) of the Federal Rules of Civil Procedure. Among other formalities, Rule 56(e) limits an affiant's statements to facts that "would be admissible in evidence." Fed.R.Civ.P. 56(e). In addition, Rule 56(e) limits an affiant's statements to facts based on "personal knowledge." Id. An affiant may state his or her opinion "only where it appears that the affiant is competent to give an expert opinion." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). However, an affiant may not engage in conclusory argument, legal or otherwise. Galindo v. Precision American Corp., 754 F.2d 1212 (5th Cir. 1985); Sunshine Kitchens, Inc. v. Alanthus Corp., 66 F.R.D. 15, 17 (S.D.Fla.1975).
If a supporting or opposing affidavit fails to conform to Rule 56(e), the opposing party may move to strike the nonconforming portion(s). Interfase Marketing, Inc. v. Pioneer Technologies Group, Inc., No. 91-572-CIV-T-17A, 1993 WL 229601, *2 1993 U.S. Dist. LEXIS 8709, at *6 (M.D.Fla. June 23, 1993); Barnebey v. E.F. Hutton & Co., 715 F.Supp. 1512, 1529 (M.D.Fla.1989). Indeed, at least six (6) circuits treat a party's failure to move to strike as a waiver. Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712 (4th Cir.1995); Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 682 (1st Cir.1994) (); Gasaway v. Northwestern Mutual Life Insurance Co., 26 F.3d 957, 960 (9th Cir.1994); Hicks v. Harris, 606 F.2d 65, 67 (5th Cir.1979); Williams v. Evangelical Retirement Homes, 594 F.2d 701, 703 (8th Cir.1979) (); Noblett v. General Electric Credit Corp., 400 F.2d 442, 445 (10th Cir.1968). In light of these cases, the Court does not agree with Ali's assertion that the City "should ... be embarrassed to be filing a motion to strike." Plaintiff's Response to Defendant's Motion to Strike and Memorandum in Support at 2-3 (Docket No. 102).
As a procedural matter, Rule 12(f) is not the proper avenue to strike an affidavit. Technically, Rule 12(f) may only be used to strike matters found in pleadings. Sellers v. Henman, 41 F.3d 1100, 1101 (7th Cir.1994) (); Londrigan v. FBI, 670 F.2d 1164, 1168 (D.C.Cir. 1981); see also, e.g., Augustus v. Board of Public Instruction, 306 F.2d 862, 868 (5th Cir.1962); Lake Lucerne Civic Association v. Dolphin Stadium Corp., 801 F.Supp. 684, 694 (S.D.Fla.1992). But cf. McLaughlin v. Copeland, 435 F.Supp. 513, 519 (D.Md.1977).
In light of these cases and authority, the Court does not agree with Ali's assertion that the City "should ... be embarrassed to be filing a motion to strike." Plaintiff's Response to Defendant's Motion to Strike and Memorandum in Support at 2-3 (Docket No. 102). The City having preserved its objections to Dr. Beke's affidavit, the Court will rule on the City's motions to strike if the objectionable...
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