Calhoun v. McHugh

• Decision Date: 04 March 2014
• Docket Number: Case No. 1:11–CV–4134–VEH.
• Citation: 2 F.Supp.3d 1217
• Parties: Larry CALHOUN, Plaintiff, v. John M. McHUGH, Secretary, Department of the Army, Defendant.
• Court: U.S. District Court — Northern District of Alabama

2 F.Supp.3d 1217

Larry CALHOUN, Plaintiff,

v.John M. McHUGH, Secretary, Department of the Army, Defendant.

Case No. 1:11–CV–4134–VEH.

United States District Court,

N.D. Alabama,

Eastern Division.

Signed March 4, 2014.

Patricia A. Gill, Patricia A. Gill PC, Birmingham, AL, for Plaintiff.

Edward Q. Ragland, U.S. Attorney's Office, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, District Judge.

Introduction

The defendant (Secretary McHugh) has filed simultaneous motions to dismiss and for summary judgment. Doc. 26. The plaintiff (Mr. Calhoun) has responded, doc. 30, and Secretary McHugh has replied, doc. 44. Mr. Calhoun has also moved to strike some of the Secretary's submitted evidence. Doc. 29. For the following reasons, the court will:

• treat Secretary McHugh's motion as one for summary judgment; • treat Mr. Calhoun's Motion to Strike as an objection under Federal Rule of Civil Procedure 56(c)(2);

• GRANT in part and DENY in part Mr. Calhoun's objection; and

• GRANT in part and DENY in part the Secretary's motion.

As described below, the court will grant Secretary McHugh summary judgment as to Mr. Calhoun's sexual harassment claim but will deny him such judgment as to Mr. Calhoun's racial discrimination and retaliation claims.

Preliminary Matters

I. Motion to Dismiss vs. Motion for Summary Judgment

Before the court may assess the motion, it must first decide whether to treat the Secretary's motion as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or as a motion for summary judgment under Rule 56(a). Compare Fed. R. Civ. 12(b)(6) withFed.R.Civ.P. 56(a). When considering a Rule 12(b)(6) Motion, a district court is generally “constrained to review the allegations as contained within the four corners of the complaint.” Crowell v. Morgan, Stanley, Dean Witter Servs. Co., Inc., 87 F.Supp.2d 1287, 1290 (S.D.Fla.2000) (citations omitted). However, a court may consider documents attached to such a motion if they are (1) referred to in the complaint and are (2) central to the plaintiff's claim. Starship Enters. of Atlanta, Inc. v. Coweta County, Ga., 708 F.3d 1243, 1252 n. 13 (11th Cir.2013) (citation omitted). “When the court considers matters outside the pleadings, however, the Rule 12(b)(6) motion converts into a Rule 56 motion for summary judgment.” Id. (citation omitted).

Secretary McHugh attached twelve exhibits to his motion and later supplemented these with four more submissions. See Docs. 28, 43. These exhibits include depositions, hearing transcripts, administrative transcripts, and personal declarations. The plaintiff does not mention any of these documents in his Complaint. The court will consider the Secretary's attached documents and thus treat his motion as one for summary judgment under Rule 56(a).

II. Motion to Strike

This conclusion segues into another antecedent issue—which extrinsic evidence to consider in examining the Secretary's motion. Mr. Calhoun seeks to strike three of the motion's evidentiary submissions. Specifically, he asks this court to remove the following from its consideration:

• Defendant's Exhibit 7;

• Defendant's Exhibit 8; and

• Paragraph 13 in the “Statement of Undisputed Material Facts” section of Defendant's memorandum accompanying its motion.

Doc. 29 at 1(citing Docs. 28–7, 28–8, 27 at 6).¹Rule 56(c)(2) allows a party to object to any material filed by another party on summary judgment on the basis that such material “cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). Although Mr. Calhoun characterizes his filing as a Motion to Strike, the motion challenges the admissibility of the above-cited evidence. The court will thus treat his motion as an objection under Rule 56(c)(2). And, for the following reasons, the court will GRANT in part and DENY in part his objection.

A. Exhibit 7

Exhibit 7 is a declaration made by Charles Barclay, a representative with the local AFGE union at the Anniston Army Depot during the events at issue. Doc. 28–7 at 1–3. He allegedly made the statement to an Equal Employment Opportunity Commission (EEOC) investigator. Id. at 1. Mr. Calhoun complains that the declaration fails under Rule 56. Doc. 29 ¶¶ 2–6. This rule requires that such declarations:

• be made on personal knowledge;

• set out admissible facts; and

• show that the declarant is competent to testify on the matters stated.

Fed.R.Civ.P. 56(c)(4).² Mr. Calhoun notes that Barclay's declaration does not affirm that he is competent to testify or that he has direct knowledge of the asserted contents. Id. ¶¶ 3–4. Mr. Calhoun also observes that the declaration is both unsigned and undated—and thus cannot be authenticated. Id. ¶ 5. He finally claims that the document is impermissible hearsay. Id. ¶ 6.

In response, Secretary McHugh submits a supplemental exhibit containing a signed and dated version of the declaration affirming that Barclay can competently testify and has direct knowledge of what he declares. Doc. 45–4. The Secretary further argues that this court may still consider the declaration—even if hearsay—because it is reducible to an admissible form at trial. Doc. 40 at 2–3. That is, Mr. Barclay could testify at trial to the statements he made to the EEOC investigator, thus eliminating any hearsay problems. Id. at 3.

Although Secretary McHugh phrases his argument indelicately, the court finds it persuasive. Generally, a district court may not consider inadmissible hearsay on a motion for summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.1999) (citation and footnote omitted). An exception to this rule applies, however, if the hearsay “could be reduced to admissible evidence at trial” or “reduced to admissible form.” Id. at 1323 (citations omitted). That is, it “must be admissible at trial for some purpose.” Id.Federal Rule of Evidence 801 defines “hearsay” as any statement that (1) the declarant (i.e., the person who made the statement) does not make while testifying at the current trial or hearing; and that (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Fed.R.Evid. 801(b)-(c). Hearsay is not admissible at trial unless allowed by:

• a federal statute;

• the Federal Rules of Evidence; or

• other rules prescribed by the Supreme Court.

Id. 802.

Secretary McHugh correctly notes that he could “reduce” the declaration to admissible evidence at trial by having Mr. Barclay testify. Doc. 40 at 3. Such testimony would not be hearsay. The court will therefore consider Mr. Barclay's declaration.

B. Exhibit 8

Exhibit 8 is the EEOC Investigator's “Report of Investigation” (ROI). Doc. 28–8. Mr. Calhoun complains that this document also doesn't comply with Rule 56 because the author has not affirmedthat he has direct knowledge of its contents. Doc. 29 ¶ 9. Mr. Calhoun also claims that the document (1) contains inadmissible hearsay and (2) states an inadmissible legal conclusion that invades this court's authority. Id. ¶¶ 10–11. Secretary McHugh responsively argues that the ROI would be admissible at trial under the “public records exception” to the hearsay rule. Doc. 40 at 3–4 (citing Fed. R. Ev. 803(8)).

The Secretary is at least partially correct. Under Rule 803(8), a public office's record or statement—although hearsay—is nevertheless admissible at trial if it sets out factual findings from a legally-authorized investigation in a civil case. Fed.R.Evid. 803(8)(A)(iii).³ This provision applies here. Every federal agency must conduct an impartial and appropriate investigation within 180 days after a party files an EEO discrimination complaint. 29 C.F.R. § 1614.106(e)(2). The EEOC—on behalf of the Army—did so here, and its product was the ROI. Because the ROI therefore contains factual findings from a legally-authorized investigation, it “could be reduced to admissible evidence at trial” under Rule 803(8).

However, the report also contains the investigator's analytical conclusions. E.g., Doc. 28–8 at 7. Mr. Calhoun objects that these judgments are improperly legal. Doc. 29 ¶ 11. As a general matter, “this circuit considers EEOC determinations to be highly probative,” and “administrative findings assessing claims of employment discrimination are admissible under [Rule] 803(8)(C).” ⁴Barfield v. Orange County, 911 F.2d 644, 650 (11th Cir.1990) (citations omitted). That being said, “there may be circumstances in which that probative value [of such evidence] ... nevertheless is outweighed by the danger of creating unfair prejudice in the minds of a jury.” Id. (citation omitted). Accordingly, in determining “whether and what parts of EEOC determinations and reports should be admitted,” a district court may consider whether the reports:

• contain legal conclusions in addition to factual content;

• raise questions of trustworthiness under Rule 803(8)(B); or

• present Rule 403 problems.

Id. (internal citations omitted). On the first point, Rule 803(8)(A) “does not provide for the admissibility of the legal conclusions contained within an otherwise permissible public report.” Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir.1989). This is because “the jury would have no way of knowing whether the preparer of the report was cognizant of the requirements underlying the legal conclusions, and, if not, whether the preparer might have a higher or lower standard than the law requires.” Id. at 303. However, “the amorphous line between ‘factual’ and ‘legal’ conclusions may obscure a practical analysis under this rubric.” Id.

This court need not decide now whether the investigator's ROI determinations constitute factual or legal conclusions. At this stage, it may consider any evidence that could be presented in a form admissible at trial. SeeFed.R.Civ.P. 56(c)(2). Because the ROI qualifies as such, the court will consider it in deciding the present motion.⁵

C. Paragraph 13

Finally, Mr. Calhoun argues that Paragraph 13 in Secretary McHugh's...