Elwakin v. Target Media Partners Operating Co.

Decision Date09 October 2012
Docket NumberCivil Action No. 11–2648.
Citation901 F.Supp.2d 730
CourtU.S. District Court — Eastern District of Louisiana


Donald Lucas Hyatt, II, Donald L. Hyatt, II, APLC, New Orleans, LA, for Plaintiffs.

Alexandra Erna Mora, Law Office of Alexandra Mora, New Orleans, LA, for Target Media Partners Operating Company LLC.


KAREN WELLS ROBY, United States Magistrate Judge.

Before the Court is Defendant's Motion for Summary Judgment (R. Doc. 41),

filed by Defendant, Target Media Partners Operating Company, LLC, (“Target”), seeking dismissal of all claims filed against it in the instant matter by Plaintiff, Wakaa Elwakil, (“Elwakil”).1 The motion was set to be heard on the briefs on Wednesday, August 29, 2012, and was continued until September 5, 2012. The motion is opposed. (R. Doc. 44). Target has submitted a Reply Memorandum in support of its Motion. (R. Doc. 56).

Also before the Court are three motions filed subsequent to Target's motion for summary judgment.2 The first motion is Elwakil's Motion to Strike Exhibits and Affidavit Submitted by Target Media Partners Operating Company, LLC (R. Doc. 45), seeking an Order from the Court striking two documents submitted by Target in support of its Motion for Summary Judgment: the Affidavit of Linda Coffman (“Coffman”) (R. Doc. 41–8), and the entirety of Exhibit E, which is comprised of three documents generated by the Kenner Police Department, as well as a print-out of a judicial charge pertaining to Domineck. (R. Doc. 41–9). The motion is opposed. (R. Doc. 47). The motion was set to be heard on the briefs on September 12, 2012.

The second motion is Target's Defendant's Motion to Strike Portions of the Affidavits of Plaintiff and of Anthony Giusti (R. Doc. 51), seeking an Order from this Court striking portions of the affidavits of Elwakil and Anthony Giusti (“Giusti”) which Elwakil submitted in support of her opposition to Target's Motion for Summary Judgment. The motion is unopposed. The motion was noticed for submission on September 26, 2012, and set for hearing on the briefs.

The third motion is Elwakil's Motion to Strike Exhibits Submitted with Reply Memorandum and Alternatively for Leave to File Surreply (R. Doc. 57), seeking an Order from this Court either striking newly filed exhibits attached to Target's Reply Memorandum at R. Doc. 56, or alternatively allowing Elwakil to file a sur-reply. The motion is opposed. (R. Doc. 58). The motion was noticed for submission on October 3, 2012, and set for hearing on the briefs.

Because the third Motion was noticed for submission on October 3, 2012, and disposition of the third Motion impacts consideration of Target's Motion for Summary Judgment, consideration was inappropriate until this time. The Court will dispose of all four motions in the course of this Order.

I. Factual Background and Procedural History

This suit pertains to Elwakil's allegations that her former employer, Target, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title VII),3 and “other statutory or regulatory prohibitions against discrimination and harassment and retaliation for complaints of invidious discrimination and/or harassment.” (R. Doc. 1–1, ¶ 13). Elwakil, an Arab, Egyptian, Muslim woman, alleges that she was unlawfully discriminated against by Target on the basis of her ethnicity, religion, and/or national origin. (R. Doc. 1–1, ¶ 6).4

In her Complaint, Elwakil alleges that on or about February 1, 2009, her former white male manager with whom plaintiff had no issues related to discrimination” was replaced by a female African American manager, Toya Domineck (“Domineck”),5 who made negative comments about Elwakil's ethnicity, religion, and/or national origin. (R. Doc. 1–1, ¶¶ 5–6). Elwakil further alleges that on February 23, 2009, shortly before her separation from Target, Domineck physically threatened her during a sales meeting attended by other employees. (R. Doc. 1–1, ¶ 7). She alleges that these actions were not taken against employees who were not Arab, Egyptian, or Muslim. Id. Finally, Elwakil's complaint generally alleges that she was required to perform work that other Target employees were not required to perform, that she was held to a higher work standard and required to work more quickly than other Target employees. (R. Doc. 1–1, ¶ 8).6

On November 14, 2011, Target moved to dismiss the case. (R. Doc. 7). On February 29, 2012, 2012 WL 669068 the Court issued an Order granting Target's Motion to Dismiss in connection with Elwakil's state law claims of negligence, discrimination, harassment, retaliation, and other torts. (R. Doc. 28, p. 10). The Court denied Target's Motion as it related to Elwakil's Title VII claims, stating that Elwakil's claims of discrimination and retaliation survived the 12(b)(6) motion. Id. at 11. In so doing, the Court's Order specified that in connection with Elwakil's discrimination claims, [t]he Court liberally construes [Elwakil's] allegations as claims for disparate treatment and hostile work environment.” Id. at 7.

On January 30, 2012, Target moved for summary judgment on Elwakil's remaining claims. (R. Doc. 25). The Court dismissed this motion without prejudice when Target voluntarily withdrew it on the grounds that Elwakil had begun complying with Target's discovery requests. (R. Doc. 31).

II. Law and AnalysisA. Motions to Strike

The three motions to strike are directed towards affidavits and other exhibits submitted in support of Target's motion for summary judgment, as well as Elwakil's response to the same.

1. Plaintiff's Motion to Strike Exhibits and Affidavit Submitted by Target Media Partners Operating Company, LLC (R. Doc. 45)

In support of its Motion, Elwakil argues that Target's Motion for Summary Judgment relies heavily on the Affidavit of Linda Coffman (“Coffman Affidavit”) and the “various papers” contained in Exhibit E (“Exhibit E Papers”). (R. Doc. 45, p. 1). Elwakil concedes that both the Coffman Affidavit and the documents comprising Exhibit E support the issue of whether Target had a non-discriminatory reason for termination of Elwakil's employment. Id. at 2. However, Elwakil argues that both can be excluded as inadmissible evidence. Id. Both the Coffman Affidavit and the Exhibit E Papers will be handled in turn.

a. Coffman Affidavit
i. Failure to Notarize and Subsequent Amendment

In support of her motion, Elwakil argues that the Coffman Affidavit, as it was presented in Target's Motion for Summary Judgment, is not notarized, and therefore it is not a sworn declaration. Id. Additionally, the Coffman Affidavit does not contain the specific language which would render it substantially equivalent to a sworn affidavit for purposes of 28 U.S.C. § 1746.

In opposition, Target states that it neglected to notarize the Coffman Affidavit, but that it should be permitted to re-file the Affidavit according to Fifth Circuit precedent in these circumstances. (R. Doc. 47, pp. 1–2) (citing In re Favre, 342 Fed.Appx. 5 (5th Cir.2009)).

Both parties agree that the original affidavit was not notarized. Compare (R. Doc. 45–1, p. 2), with (R. Doc. 47, pp. 1–2). This failure makes the Affidavit incompetent evidence for summary judgment. See Nissho–Iwai American Corp. v. Kline, 845 F.2d 1300, 1305–06 & n. 9 (5th Cir.1988) (noting that an unsigned affidavit which failed to state that it was made under penalty of perjury was properly stricken from consideration of summary judgment motion). Further, the Affidavit does not meet the criteria for “unsworn affidavits” contained at 28 U.S.C. § 1746 because this statute also requires the person making the verification to state that the declaration is made “under penalty of perjury,” 28 U.S.C. § 1746, but no such exact or equivalent statement appears in the Coffman Affidavit. Therefore, the affidavit as originally submitted is inadmissible.

The issue is then whether Target's subsequent remedial measures suffice to cure the initial defect. Fifth Circuit courts have permitted refiling of affidavits submitted in support of summary judgment motions in other circumstances. See, e.g., United States v. Filson, 347 Fed.Appx. 987, 991 (5th Cir.2009) (permitting refiling of affidavit which properly authenticated records); Johnson v. New South Federal Savings Bank, 344 Fed.Appx. 955, 956–57 (5th Cir.2009) (finding that supplemental affidavit cured defects regarding amount of taxes paid in a certain year). Other federal courts have found that an initial failure to notarize could be cured by the submission of amended affidavits. See Cooper v. Upshur County Constable's Office, 2008 WL 2035809, at *4 (E.D.Tex. May 12, 2008) (finding, on summary judgment, that party's submission of amended affidavits in response to opposing party's motion to strike permitted consideration of affidavits' content); Contreras v. Suncast Corp., 237 F.3d 756 (7th Cir.2001) (finding, on appeal, that district court allowing party to resubmit affidavits was not reversible error).

Here, Target was notified of Elwakil's objection on August 24, 2012, and it responded expeditiously—on September 4, 2012. Cf. In re Favre, 342 Fed.Appx. 5, 8–9 (5th Cir.2009) (finding that party had waived right to object to deficiencies in summary judgment motion where party waited over eight months to respond). The Court finds that these circumstances indicate that Target cured the initial defect in the Coffman Affidavit, which can now be considered competent summary judgment evidence.

ii. Admissibility of Certain Statements
(A) Paragraph 44

The next issue is whether any portions of the Coffman Affidavit should be struck on the grounds that they are inadmissible as evidence. (R. Doc. 45–1, p. 2). Specifically, Elwakil raises a challenge to Coffman's Paragraph 44 on the basis of hearsay. Paragraph 44 reads:

44. The Plaintiff resigned in a telephone call to Domineck on February 11, 2009 and then changed her mind later that...

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