Mickelsen v. Albertson's, Inc.
| Decision Date | 10 September 2002 |
| Docket Number | No. CIV.01-398-S-LMB.,CIV.01-398-S-LMB. |
| Citation | 226 F.Supp.2d 1238 |
| Parties | Marigrace MICKELSEN, Plaintiff, v. ALBERTSON'S, INC., Defendant. |
| Court | U.S. District Court — District of Idaho |
Stephen J Lord, Boise, ID, for Marigrace Mickelsen, plaintiff.
Harry S Chandler, Stoel Rives, Boise, ID, for Albertson's, Inc., defendant.
Currently pending before the Court are Defendant's Motion for Summary Judgment (Docket No. 17), Defendant's Motion to Strike (Docket No. 34), and Plaintiff's Motion to Strike (Docket No. 40).
Having carefully reviewed the record, considered oral arguments, and otherwise being fully advised, the Court enters the following Order.
Marigrace Mickelsen ("Plaintiff") was born on April 27, 1936. In the instant action, Plaintiff was employed by Albertson's, Inc. ("Defendant") from September of 1964 through June of 1974, and then again from May 9, 1988 through May 21, 1999, when Plaintiff was discharged by Defendant. Complaint ¶ IV. Plaintiff alleges that she was not reinstated to her previous position, and was instead discharged when she returned from a leave of absence for back surgery.
From approximately 1992 until 1996 or 1997, Plaintiff worked as a shipping clerk in the warehouse at Defendant's Sundries Center until she was moved to the receiving clerk responsibilities. Deposition of Marigrace Mickelsen, p. 16 (Aff. of Harry S. Chandler, Docket No. 23). In late 1997, Plaintiff experienced a non-work related injury which required surgery in January 1998. She did not return to work until March 1998. Id. at pp. 10-11.
In December 1998, Plaintiff had another surgery performed on her back. On April 29, 1999, she was released by her doctor to return to work with a lifting restriction of 25 pounds as well as instructions not to sit on high chairs with poor back support. Id. at pp. 24-26, 31. Thereafter, on or about May 5, 1999, Plaintiff met with Mary Huber-Thompson, Defendant's Sundries Center Human Resource Manager, and Tony Hartz, Defendant's Warehouse Operations Manager, and was informed that "one warehouse clerk position had been eliminated and there was no warehouse clerical job for her to return to." Aff. of Mary Huber-Thompson ¶ 7 (Docket No. 20).
On May 5, 1999, Plaintiff applied for the open position of Personnel Assistant, which was the "only open warehouse position then available." Id. However, Plaintiff was not selected for the position and, as a result, on May 21, 1999, Plaintiff's employment was terminated. Id. ¶ 5.
Plaintiff filed suit in the District Court of the Fourth Judicial District of the State of Idaho alleging claims under the Americans with Disabilities Act of 1990 ("ADA"), the Age Discrimination in Employment Act of 1967 ("ADEA"), and violations of the Idaho Human Rights Act ("IHRA"). On August 7, 2001, that action was then removed to this Court.
Defendant moves to strike portions of Plaintiff's affidavit which are conclusory, speculative, argumentative, do not demonstrate that the affiant is competent to testify to those matters, and not based on personal knowledge.1 Defendant argues that these type of statements do not comply with the requirements of Fed.R.Civ.P. 56(e) and must be stricken.
It is well settled that "only admissible evidence may be considered in ruling on a motion for summary judgment." Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir.1988). Pursuant to Rule 56(e), affidavits "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." See also Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001).
Since Rule 56(e) is clear in requiring that supporting and opposing affidavits must be based on personal knowledge, the Ninth Circuit has recognized that an affidavit made upon information and belief does not comply with Rule 56(e). Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir.1995) (); Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir. 1991) (); Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir.1978) ().
In light of the foregoing, the Court will strike paragraphs 15, 16, 18, 21, and 24 of the Affidavit of Marigrace Micklesen on the grounds that the affiant lacks personal knowledge. Further, the Court will strike those identified portions of the following paragraphs on the same grounds:
The sentence "[e]ven under Albertson's notion of `seniority,' I believe that I was considered `senior.'"
The sentence "I have reviewed Exhibit N attached to Mary Huber Thompson's affidavit and believe that it was not in effect on the date of my re-hire in 1988 or on the date of my transfer to the receiving clerk position in 1996, as Exhibit N has a date in the lower left hand corner of 7/97."
The first part of the paragraph that states "[i]n addition to altering documents or creating documents with mistakes on them and signing my name to them to make me appear as if I had been inaccurate ...."
The sentence "I confidentially complained about this behavior to Bruce Smith, who, instead of taking action to prevent Burchfield from continuing her pattern of behavior toward me, apparently told Burchfield to counsel me."
The sentence "I believe that this move was the beginning point of a concerted effort to remove me from the workplace based on my age."
The sentence "I believe that Albertson's did not provide all of the time sheets from all vendors of temporary help."
The sentence "I believe that my combination of formal college education and experience, even though I did not obtain a college degree, is at least the equivalent of a college degree."
The sentence "I believe that I could easily have learned all the Microsoft applications mentioned, but was never given the chance to, because Mary Huber-Thompson hired Tara Elayer, a younger applicant for the job."
The sentence "I believe that the decision to terminate me was only made when I was able to return to work in May of 1999 and requested that I be placed in the last job for which I was selected, namely the receiving clerk position."
Further, it is well established that Plaintiff cannot defeat a motion for summary judgment by making conclusory statements without evidentiary support. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); see also Hansen v. U.S., 7 F.3d 137, 138 (9th Cir.1993) (); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983) ().
With respect to paragraphs 22, 28, 34, 39, and 40, the Court concludes these paragraphs are conclusory and should be stricken. Further, the Court concludes that the second sentence of paragraph 29 which states "Albertson's was aware that I needed this accommodation to allow me to provide care for my husband" is conclusory and speculative.
Accordingly, Defendant's Motion to Strike is granted as provided above.
On August 28, 2002, during the hearing of all pending motions, Plaintiff made an oral motion to strike inadmissable portions of the affidavits submitted in support of Defendant's summary judgment motion. (Minute Entry, Docket No. 40). To the extent that the Court relied on these affidavits, the Court concludes that the portions of the affidavits referenced in this decision are admissible as they are based on personal knowledge and otherwise comply with Rule 56. Accordingly, Plaintiff's oral motion to strike is denied.
Motions for summary judgment are governed by Fed.R.Civ.P. 56, which provides, in pertinent part, that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The United States Supreme Court has made it clear that under Rule 56, summary judgment is required if the nonmoving party fails to make a showing sufficient to establish the existence of an element which is essential to his case and upon which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the nonmoving party fails to make such a showing on any essential element of his case, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548.2
Under Rule 56 it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material"...
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