Griddine v. GP1 KS-Sb, Inc., Case No. 2:17-CV-02138-JAR

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
PartiesTHOMAS E. GRIDDINE, Plaintiff, v. GP1 KS-SB, INC., d/b/a Baron BMW and GROUP 1 AUTOMOTIVE, Defendants.
Docket NumberCase No. 2:17-CV-02138-JAR
Decision Date28 February 2019

GP1 KS-SB, INC., d/b/a Baron BMW and

Case No. 2:17-CV-02138-JAR


February 28, 2019


Plaintiff Thomas Griddine brings this employment action against Defendants GP1 KS-SB, Inc., d/b/a Baron BMW ("Baron") and Group 1 Automotive. Griddine, a former employee of Baron, claims that Defendants discriminated against him on the basis of age, resulting in his constructive discharge from Baron. Now before the Court are Defendants' Motion for Summary Judgment (Doc. 77) and Griddine's Motion for Summary Judgment on Affirmative Defense of After-Acquired Evidence (Doc. 79). The motions are fully briefed and the Court is prepared to rule.

In his Amended Complaint, Griddine asserted claims for constructive discharge on the basis of age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA") (Count I), retaliation under the ADEA (Count II), race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count III), retaliation under Title VII (Count IV), race discrimination under 42 U.S.C. § 1981 (Count V), and retaliation under § 1981 (Count VI).1 In his response to Defendants' motion for summary judgment,

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however, Griddine states that he is "elect[ing] not to oppose the Defendants' motion with respect to Counts II through VI."2 Thus, Griddine's only remaining claim is for constructive discharge on the basis of age (Count 1) and his other claims are dismissed with prejudice. For the reasons set forth in detail below, Defendants are also entitled to summary judgment on Count I and this case is dismissed with prejudice in its entirety. The Court therefore denies as moot Griddine's Motion for Summary Judgment on Affirmative Defense of After-Acquired Evidence.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law."3 In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.4 "There is no genuine [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party."5 A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."6 A dispute of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."7

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The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.8 In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.9

Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."10 The nonmoving party may not simply rest upon its pleadings to satisfy its burden.11 Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."12 In setting forth these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein."13 To successfully oppose summary judgment, the nonmovant must bring forward "more than a mere scintilla of evidence" in support of his position.14 A nonmovant "cannot create a genuine issue

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of material fact with unsupported, conclusory allegations"15 or evidence based on mere "speculation, conjecture, or surmise."16 Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."17

II. Evidentiary Objections to Statements of Fact

Before turning the parties' statements of fact, the Court must resolve both sides' objections to certain evidence offered by the opposing party.

A. Griddine's Objections to Stockwood Declaration Under Federal Rules of Civil Procedure 56(c) and 37(c)(1)

In support of their motion for summary judgment, Defendants offer the Declaration of Julie Stockwood, Baron's Human Resources Manager. Griddine objects to certain statements in Stockwood's Declaration on the basis that they are not supported by admissible evidence as required by Fed. R. Civ. P. 56(c)(2), are not based on personal knowledge as required by Fed. R. Civ. P. 56(c)(4), and/or are inadmissible under Fed. R. Civ. P. 37(c)(1) because they rely on evidence that Defendants failed to produce in compliance with Fed. R. Civ. P. 26.

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Summary judgment evidence need not be "submitted 'in a form that would be admissible at trial.'"18 However, "the content or substance of the evidence must be admissible,"19 and Rule 56(c)(2) permits a party to "object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."20 "Indeed, as the advisory committee notes to the 2010 Federal Rule amendments explain: 'The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.'"21 "The requirement is that the party submitting the evidence show that it will be possible to put the information, the substance or content of the evidence, into an admissible form."22

Further, Rule 56(c)(4) provides that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."23 Similarly, D. Kan. Rule 56.1(d) provides that "[a]ffidavits or declarations must be made on personal knowledge and by a person competent to testify to the facts stated that are admissible in evidence."24 Finally, Rule 602 of the Federal Rules of Evidence provides that "[a] witness may

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testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."25

"Although affidavits are entirely proper on summary judgment, the content or substance of the evidence contained therein must be admissible."26 And "[u]nder the personal knowledge standard, an affidavit is inadmissible if 'the witness could not have actually perceived or observed that which he testifies to.'"27 Thus, an affidavit "asserting personal knowledge must include enough factual support to show that the affiant possesses that knowledge,"28 meaning that the affiant must "affirmatively set forth the bases upon which [he or she] relies . . . in making the statements asserted."29 However, Rule 56(c)(4)'s "requirements of personal knowledge and competence to testify may be inferred if it is clear from the context of the affidavit that the affiant is testifying from personal knowledge."30

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In the first paragraph of her Declaration, Stockwood states that she has been Baron's Human Resources Manager since "early 2016," which means that she began working at Baron only a few months before Griddine resigned his employment there in April of 2016.31 In the second paragraph of her Declaration, Stockwood states: "I am over eighteen years of age, am of sound mind, and am competent to make this declaration. I have personal knowledge of the facts stated herein."32 This statement is Stockwood's only attempt at establishing that she has personal knowledge of the facts to which she attests. And this statement, standing alone without factual support, is insufficient to establish personal knowledge.33 Accordingly, many of Stockwood's statements are inadmissible as set forth below.

In paragraphs 11-13, Stockwood provides "the average closing ratio" for different kinds of customer leads (i.e., internet, showroom, and phone leads), and purports to base this information on unspecified documents or data from Baron's Customer Relations Management ("CRM") system. In paragraphs 14-16, she states various facts about the typical content of internet leads, and Baron's receipt of and practices for distributing such leads among Client Advisors. In paragraph 17, Stockwood describes Baron's "Customer Protective Policy," which she states generally protects a prospective client who has made contact with a Client Advisor

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from being assigned to or taken by another Client Advisor for a specified period of time, subject to certain exceptions. In paragraph 19, Stockwood discusses a situation in which a customer with whom Griddine had previously met was reassigned to a different Client Advisor, again purportedly basing her statements on unspecified data from the CRM system. Nowhere, however, does Stockwood describe how she—in her role in human resources, not sales—has acquired personal knowledge of the CRM system or data extracted therefrom, the handling of customer leads, or the implementation of any "Customer Protective Policy." Nor can the Court infer from her position as Human Resources Manager that she would necessarily have personal knowledge of these matters, which relate to Baron's sales efforts.

In response to Griddine's objection to the foregoing paragraphs of Stockwood's Declaration, Defendants state that Griddine's assertion that Stockwood lacks personal knowledge is "speculative,"34 and that "[i]t seems obvious that the HR Manager for the dealership would have...

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