Givhan v. Electronic Engineers, Inc.

• Decision Date: 11 February 1998
• Docket Number: No. Civ.A. 97-D-722-N.,Civ.A. 97-D-722-N.
• Citation: 4 F.Supp.2d 1331
• Parties: Lonnie GIVHAN, Plaintiff, v. ELECTRONIC ENGINEERS, INC., Defendant.
• Court: U.S. District Court — Middle District of Alabama

4 F.Supp.2d 1331

Lonnie GIVHAN, Plaintiff, v. ELECTRONIC ENGINEERS, INC., Defendant.

No. Civ.A. 97-D-722-N.

United States District Court, M.D. Alabama, Northern Division.

February 11, 1998.

COPYRIGHT MATERIAL OMITTED

Gwendolyn T. Kennedy, Montgomery, AL, for Plaintiff.

Frances Heidt, Fern Singer, Birmingham, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is Defendant Electronic Engineers, Inc.'s ("EE") Motion For Summary Judgment ("Def.'s Mot.") filed December 16, 1997. On the same date, EE filed its Memorandum Of Law In Support Of Its Motion For Summary Judgment ("Def.'s Mem.") and its Submission Of Evidence In Support Of Motion For Summary Judgment ("Def.'s Evid."). Plaintiff Lonnie Givhan ("Givhan") filed his Opposition To Motion For Summary Judgment on January 5, 1998 consisting solely of his Affidavit ("Givhan Aff."), the Affidavit of Michael Carter ("Carter Aff."), and the Affidavit of Michael J. Sulkosky ("Sulkosky Aff."). On January 20, 1998. EE filed its Reply Memorandum Of Law In Support Of Motion For Summary Judgment ("Def.'s Reply"), as well as a Motion To Strike Portions Of the Affidavits Of Michael J. Sulkosky and Michael Carter ("Def.'s Mot. To Strike"). On January 21, 1998, the court issued an Order directing Plaintiff to show cause, if any there be, no later than February 4, 1998, why EE's Motion To Strike should not be granted. Plaintiff did not respond to the court's January 21, 1998 Order.

For the reasons set forth below, the court finds that EE's Motion To Strike is due to be granted in part and denied in part, and that EE's Motion For Summary Judgment is due to be granted.

JURISDICTION

The court properly exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 42 U.S.C. § 2000, et seq. The parties do not contest personal jurisdiction or venue.

DISCUSSION

I. MOTION TO STRIKE

An affidavit which fails to meet the standards of Rule 56(e) of the Federal Rules of Civil Procedure is subject to a motion to strike. Southern Concrete Co. v. United States Steel Corp., 394 F.Supp. 362, 380 (N.D.Ga.1975), aff'd, 535 F.2d 313 (5th Cir. 1976).¹ The motion to strike should state precisely the portions of the affidavit to which objection is being made, and the grounds therefor. Id.; Olympic Ins. Co. v. H.D. Harrison. Inc., 418 F.2d 669, 670 (5th Cir.1969). If no objection is made to inadmissible statements in an affidavit then the court may consider them on a motion for summary judgment. Harrison, 418 F.2d at 670; Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir.1988).

Both Sulkosky's and Carter's Affidavits were filed in support of Plaintiff's opposition to EE's motion for summary judgment, and as such, must comport with the requirements of the Federal Rules of Civil Procedure. Rule 56(e) of the Federal Rules of Civil Procedure provides that an affidavit opposing a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." (emphasis added). Because affidavits proffered in opposition to a motion for summary judgment must be based upon personal knowledge, an affidavit based upon "information and belief" is insufficient as a matter of law. Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 831, 70 S.Ct. 894, 94 L.Ed. 1312 (1950); Reeves v. Thigpen, 879 F.Supp. 1153, 1164 (M.D.Ala.1995).

Further, the court may consider only that evidence that would be admissible at trial.² Soles v. Board of Comm'rs of Johnson County, 746 F.Supp. 106, 110 (S.D.Ga. 1990) (citing Sires v. Luke, 544 F.Supp. 1155 (S.D.Ga.1982); Samuels v. Doctors Hosp., Inc., 588 F.2d 485, 486 n. 2 (5th Cir.1979)). In determining admissibility under Rule 56, the same standards apply as at trial. Soles, 746 F.Supp. at 110 (citing Munoz v. International Alliance of Theatrical Stage Employees, 563 F.2d 205, 207 n. 1 (5th Cir.1977)). Thus, in ruling upon summary judgment motions, the court will not consider inadmissible hearsay.³ Soles, 746 F.Supp. at 110 (citation omitted).

EE's Motion To Strike is directed at portions of the Affidavits of Michael J. Sulkosky and Michael Carter that were submitted by Givhan in opposition to EE's Motion For Summary Judgment. EE contends that certain portions of Sulkosky's Affidavit are based on inadmissible hearsay. Specifically, EE asserts that the following should be stricken:

During my supervisor tenure at [EE] from April 1993, until November 1996, I witnessed several racist remarks.

...

Richard Tarentino called a meeting with Larry Eckels and myself and said "Ya'll need to fire that nigger."

...

Additionally, Terrie Taylor, Office Manager would from time to time "spread hate" about blacks, calling Lonnie, in particular, a "sorry nigger."

(Sulkosky Aff. at 1-2.)

EE does not offer any argument or case law in support of its Motion To Strike other than the assertion that the statements quoted above are "inadmissible hearsay" under Rules 801. (Def.'s Mot. To Strike at 1-2.) Rule 801(c) of the Federal Rules of Evidence defines hearsay as "a statement ... offered in evidence to prove the truth of the matter asserted." Although Sulkosky's Affidavit clearly recounts statements he allegedly heard others make, the statements are not offered to prove the truth of the matters asserted therein, but only to prove that the statements were made. Therefore, they do not meet Rule 801's definition of hearsay, and are thus not subject to exclusion under Rule 802. Accordingly, the court finds that EE's Motion To Strike the portions of Michael J. Sulkosky's Affidavit quoted above is due to be denied.

Next, EE contends that certain portions of Carter's Affidavit "contain statements without the personal knowledge of the affiant." (Def.'s Mot. To Strike at 2.) Specifically, EE asserts that the following should be stricken:

In December 1995, my van's (# 19) motor locked up due to old age and excessive use. The van had over 128,000 miles on it. I checked the oil every gas fill up, as I'm sure Lonnie did for van # 26 which was older than mine. I was not fired over the incident, but I was talked to about it. I left [EE] on November 7, 1996 because I was fed up over poor management decisions that had no rhyme or reason.

(Carter Aff. at 1). Mr. Carter asserts that he checked the oil every gas fill up and that "I'm sure Lonnie did." Id. He does not, however, describe his basis of knowledge for this assertion. Indeed, he does not contend that he saw Plaintiff check the oil or any other grounds for his "certainty" that could be construed as being based on personal knowledge. Accordingly, the proffered statement is made without the personal knowledge of the affiant and does not meet the requirements of Rule 56(e). Therefore, the court finds that EE's Motion To Strike the portion of Michael Carter's Affidavit that states that "I'm sure Lonnie did" is due to be granted.

II. MOTION FOR SUMMARY JUDGMENT

A. Summary Judgment Standard

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is ne genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As the Supreme Court has explained the summary judgment standard:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since the complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [his or her] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Fed.R.Civ.P. 56(e).

In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That party must demonstrate that there...