Martinez v. US Sugar Corp.

• Decision Date: 16 March 1995
• Docket Number: No. 93-80-CIV-FTM-17D.,93-80-CIV-FTM-17D.
• Citation: 880 F. Supp. 773
• Parties: Armando MARTINEZ, Plaintiff, v. UNITED STATES SUGAR CORPORATION, a foreign corporation, Defendant.
• Court: U.S. District Court — Middle District of Florida

880 F. Supp. 773

Armando MARTINEZ, Plaintiff, v. UNITED STATES SUGAR CORPORATION, a foreign corporation, Defendant.

No. 93-80-CIV-FTM-17D.

United States District Court, M.D. Florida, Fort Myers Division.

March 16, 1995.

COPYRIGHT MATERIAL OMITTED

Joseph A. Vassallo, Joseph A. Vassallo, P.A., Isidro M. Garcia, Vassallo, Garcia & Garcia, P.A., Lake Worth, FL, for plaintiff.

Charles Robinson Fawsett, Linda Watson Dillman, Shutts & Bowen, Orlando, FL, for defendant.

ORDER GRANTING MOTION FOR JUDGMENT

KOVACHEVICH, District Judge.

This cause is before the Court on Plaintiff's Motion to Supplement Exhibit # 39 (Docket 80) and Defendant's Motions for Rule 52(c) Judgment (Docket 90) and to Strike (Docket 92), as well as the various Responses and Replies to those Motions (Dockets 81, 82, 97, 99 and 101). The Motion for Judgment was filed at the conclusion of the Plaintiff's case-in-chief at trial.

I. Standards

In considering a Rule 52(c) motion, the Court is the trier of fact. If the Court decides to grant a Rule 52(c) judgment on partial findings, it must weigh all the evidence presented and "... set forth ... findings of fact and conclusions of law ...". As the comment notes, this rule "authorizes the court to enter judgment at any time that it can appropriately make a dispositive finding of fact on the evidence." Fed.R.Civ.Pro. 52(c) and advisory committee notes, 1991 amendment. The judge may sustain such a motion by Defendant even though a prima facie case may have been presented. Cherrey v. Thompson Steel Co., Inc. 805 F.Supp. 1257 (D.Md.1992), citing Holmes v. Bevilacqua, 794 F.2d 142 (4th Cir.1986) (referring to Rule 41(b), succeeded by Rule 52(c)).

II. Facts

On Sunday, September 29, 1991, Plaintiff and other employees of Defendant were playing in a softball tournament sponsored by the Defendant. After a verbal dispute, including racial epithets between himself and Defendant employee Mr. William Jackson over the issue of playing time in that tournament, Plaintiff left the field of play, stating that he would be back. Transcript 6-40 through 50. Prior to his departure, he was briefly confronted by Mr. Bruce Ball, another employee of Defendant. Transcript 6-47. At this point, no real physical altercation had occurred, and the incident was limited mostly to name-calling, shouting and posturing.

Between ten (10) and thirty (30) minutes later, Plaintiff returned to the softball field, driving at what witnesses described as a high rate of speed, in an area where children were present. Transcript 6-51 through 52. In full control of his faculties, he brought with him a loaded .44 Magnum revolver and his expressed purpose of confronting Mr. Jackson. Transcript 6-148 through 152, 6-156 through 157, 7-61 through 68. Later disarmed, Plaintiff became involved in a physical altercation with Mr. Pat Hough and Mr. Toby Clements, also other employees of Defendant. Plaintiff suffered some minor injury from this incident. Transcript 6-158 through 160.

After investigation of the incident, all of the employees involved were subjected to some form of discipline for their participation. The decision to impose discipline was made by Defendant employees Mr. Larson, Mr. Starrett and Mr. Rodriguez. Transcript 4-142, 4-156, 3-57 through 60. Plaintiff Martinez was discharged from his work by Defendant, on October 16, 1991, and alleges violation of Title VII of the 1964 Civil Rights Act by his former employer, in that the discharge was because of Plaintiff's national origin, Cuban. The other employees involved in the incident received suspensions without pay for varying periods of time. Transcript 3-60 through 65. Plaintiff was later offered other work, at substantially lesser pay, by Defendant company, but declined. Transcript 6-105.

III. Issues

A. Evidentiary questions

The record of this case is quite convoluted, in large part due to the apparent inability of both sides to organize the physical evidence in a cogent manner prior to start of trial. Not surprisingly, there are several proffers to be considered, a Motion to Supplement Defendant's Exhibit 39 (Docket 80), a Motion to Strike various parts of the record (Docket 92), and various Memorandums, Responses and Replies to those motions (Dockets 81, 82, 97, 99 and 101). For ease of organization, the various motions will be considered here in the order they were filed.

1. MOTION TO SUPPLEMENT DEFENDANT'S EXHIBIT 39 (Docket 80) — Plaintiff moves that the Court allow Defendant's Exhibit # 39, already in evidence, to be supplemented by the actual recording from which that exhibit, a statement transcript, was drawn. Defendant objects to the supplementing of the transcript on the grounds that it is hearsay, that it is non-probative, and that Plaintiff had already rested his case (Docket 81).

The actual tape of a transcripted statement is neither more nor less hearsay than the transcript itself. Any probative value will be judged by the Court as trier of fact. Objection was made at trial on "all grounds," and overruled. Transcript, 7-9. Further, Defendant's counsel, in opening statement, invited the Court to play any of the tapes of interviews. Transcript 1-24. Having done so, it seems specious now that Defendant should move to exclude a tape from evidence.

As to the question of the admissibility of evidence after Plaintiff rested his case, the Court does not find that a consideration of original material in addition to a transcript to be a re-opening of Plaintiff's case. The Court controls the mode and order of presentation of evidence so as to make it effective for the ascertainment of truth. Fed.R.Evid. 611. Further, the Federal Rules of Evidence contain a clear preference for original contents of a writing or recording. Fed.R.Evid. 1002. There is no prejudice created by admitting the actual tape recording of a statement that has already been admitted. The Motion to Supplement Defendant's Exhibit 39 (Docket 80) is granted.

2. DEFENDANT'S MOTION TO STRIKE (Docket 92) — Defendant moves to strike eight (8) separate items from the trial testimony and other matters offered into evidence from the Plaintiff's case in chief. For the reasons noted below, each portion of the Defendant's Motion to Strike is denied.

a. Testimony of Rodney G. Larson, Transcript 1-74 through 78, on the grounds of hearsay and failure of Plaintiff to provide other evidence on point: This testimony did not constitute hearsay as it was not offered to prove the truth of the matter asserted, but, instead, to speak to the credibility of the witness. Plaintiff's Motion to Supplement Defendant's Exhibit # 39 constitutes provision of other evidence on the point concerning ethnic remarks upon tapes. The Motion to Strike this portion of the testimony is denied.

b. Defendant's Exhibit # 39, on the grounds of hearsay and failure of the Plaintiff to provide other evidence on point: The objection due to hearsay was overruled during trial by the Court and again in this Order, above. The tape, admitted to supplement Defendant's Exhibit # 39 on Plaintiff's motion, is sufficient to meet the Plaintiff's promise to provide evidence on point not heard at trial. The Motion to Strike this portion of the evidence is denied.

c. Testimony of Dana Custer, Transcript 1-114 through 115, on the grounds that the material concerning reputation was not known to the Defendant, as represented by Plaintiff: This testimony was offered to establish the reputation for peacefulness of Mr. Pat Hough in the community. Whether it was known to the Defendant or not is a question of probative value, not of admissibility. Probative value will be determined by the Court as trier of fact. The Motion to Strike this portion of the testimony is denied.

d. Proffer of testimony of James David Bryant, Transcript 2-49 through 57, on the grounds of irrelevancy to a prima facie case: The Court has carefully reviewed this proffer. It contains a mixture of testimony, some of which is relevant, and some of which is borderline, at best. Even if admitted, however, the probative value of the material contained therein is so slight as to have very little bearing on the outcome of the Motion for Judgment. Accordingly, and to ensure any error is on the side of caution, the Motion to Strike this proffer is denied. Its weight, however small, will be considered with the totality of the evidence.

e. Testimony of Bert Starrett, Transcript 3-87 through 97, on grounds of irrelevance and departure from pleadings and issues presented in the Pretrial Stipulation: This testimony is clearly relevant to the issue of disparate impact. In moving to strike this evidence, Defendant is, in essence, asking the Court to refuse to consider that entire issue. The Court declines to do so, and will discuss disparate impact below. Motion to strike this portion of the testimony is denied.

f. Exhibits associated with testimony of Bert Starrett, on the grounds of irrelevance and departure from pleadings and issues presented in the Pretrial Stipulation: Motion to Strike these exhibits is denied for the same reason as the above paragraph.

g. Testimony of Rodney Larson, Transcript 5-21 through 23, on the grounds of irrelevance and departure from the pleadings and issues presented in the Pretrial Stipulation: Motion to Strike this testimony is denied for the same reason as above.

B. Timeliness of filing

Title VII requires a plaintiff to sue within ninety (90) days of receipt of a Notice of Right to Sue. 42 U.S.C. § 2000e-5(f)(1). Plaintiff has the burden to prove that he has adhered to the requirement. That 90 day period begins to run upon receipt of certified letter at plaintiff's residence emphasis added. Norris v. Florida Department of Health and Rehabilitative Services, 730 F.2d 682 (11th Cir.1984), see also Law v. Hercules, Inc., 713 F.2d 691 (11th Cir.1983).

The Notice of Right to Sue was dated November 25, 1992, and this action was filed March 1, 1993, 95 days later. Plaintiff...