O'Neal v. City of Hiram

• Decision Date: 19 February 2021
• Docket Number: CIVIL ACTION FILE NO. 4:19-CV-0177-TWT-WEJ
• Parties: GLENN MICHAEL O'NEAL, JR., Plaintiff, v. CITY OF HIRAM and JODY PALMER, Defendants.
• Court: U.S. District Court — Northern District of Georgia

GLENN MICHAEL O'NEAL, JR., Plaintiff, v. CITY OF HIRAM and JODY PALMER, Defendants.

CIVIL ACTION FILE NO. 4:19-CV-0177-TWT-WEJ

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION

February 19, 2021

FINAL REPORT AND RECOMMENDATION

Plaintiff, Glenn Michael O'Neal, Jr., filed this action against his former employer, the City of Hiram ("the City"), alleging six claims: (1) violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA") (Am. Compl. [9] Count I); (2) discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") (Am. Compl. Count II); (3) retaliation in violation of the ADEA (id. Count III); (4) discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") and Rehabilitation Act, 29 U.S.C. § 701 et seq. ("Rehab Act") (Am. Compl. Count IV); (5) retaliation in violation of the ADA and Rehab Act (id. Count V); and (6) violation of the Georgia Whistleblower's Act, O.C.G.A. § 45-1-4 ("GWA") (Am. Compl. Count VI). Plaintiff also brings a claim under 42 U.S.C. § 1983, alleging that defendant Jody Palmer, the City Manager, violated his rights under the First Amendment to the United States Constitution. (Am. Compl. Count VII.)

In its Answer to the Amended Complaint [16], the City asserted state-law counterclaims for breach of contract and unjust enrichment based on plaintiff's nonpayment of his health care premiums. (Ans. to Am. Compl., Countercl., Counts I & II.)

This matter is before the Court on (1) a Motion for Summary Judgment [88] filed by the City and Mr. Palmer and (2) plaintiff's Cross-Motion for Summary Judgment as to the City's Counterclaims [93]. For reasons explained below, the undersigned RECOMMENDS that defendants' Motion be GRANTED as to plaintiff's federal claims, that the District Judge DECLINE to exercise supplemental jurisdiction over plaintiff's state-law GWA claim and the City's state-law counterclaims, and that plaintiff's Cross-Motion for Summary Judgment as to the City's Counterclaims be DENIED AS MOOT.

I. PRELIMINARY ISSUES

A. Defendants' Objections to Unauthenticated Exhibits and Plaintiff's Declaration

Plaintiff filed sixty-one exhibits ([109-1]-[109-61]), comprising several hundred pages, to his summary judgment brief, statement of additional facts, response to defendants' statement of undisputed material facts, and to his Declaration [109-5]. Defendants filed an Objection [118] to certain paragraphs of plaintiff's Declaration and, in their Reply Brief [117], objected to Plaintiff's Exhibits 2, 3, 4, 7, 9, 11, 21, 22, 24, 25, 27, 28, 29, 30, 31, 32, 36, 41, 43, 46, 51, 52, 53, 55, 58, 59, 60, 61, 62, and 63¹ as unauthenticated and inadmissible hearsay. (Defs.' Reply 1-2.) Defendants argue that only Exhibits 8 and 10² are authenticated and are thus the only exhibits the Court should consider. (Id. at 1.)

A court "may consider unauthenticated documents on a motion for summary judgment if it is apparent that they will be admissible at trial." The Lamar Co. v. City of Marietta, Ga., 538 F. Supp. 2d 1366, 1377 (N.D. Ga. 2008); see also Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996) (plaintiff could notuse inadmissible hearsay to defeat summary judgment when that hearsay will not be reducible to admissible form at trial). While defendants are correct that plaintiff's exhibits are unauthenticated, defendants do not show how these exhibits cannot be authenticated at trial and thus the Court will consider them. However, to the extent that plaintiff's exhibits contain hearsay or other inadmissible evidence that cannot be reduced to admissible form, the Court will exclude that content from consideration when appropriate.

Turning to plaintiff's Declaration, defendants object to ¶¶ 21, 33, 35, 49, 59, 62, and 64.³ Paragraph 21 reads: "Mr. Palmer told me to keep up with the investigation." (O'Neal Decl. ¶ 21.) Defendants object to this paragraph to the extent that plaintiff claims Mr. Palmer made this statement during an October 11, 2017 meeting. Defendants' objection is sustained. In his deposition, plaintiff was asked what he remembered Mr. Palmer saying to him during their October 11, 2017 meeting to discuss his grievance. In response, plaintiff said he did not remember"word for word," but that he recalled Mr. Palmer telling him to "keep up with what was going on." (O'Neal Dep. [90] 134:3-136:23.) He further testified that there was nothing that could refresh his recollection of their conversation. (Id.) Given the clear answers to unambiguous questions that plaintiff provided in his deposition testimony, the Court rejects the averment in ¶ 21. See Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984) ("When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.").

For the same reasons, the Court rejects ¶ 35 as a sham to the extent plaintiff claims he met in person with outside investigators more than once. (Compare O'Neal Decl. ¶ 35 ("I was interviewed by SPI investigators multiple times throughout the investigation, including phone calls and in-person meetings."), with O'Neal Dep. 112:10-114:12 (plaintiff testified he was only interviewed by investigators "in person" once).); see also Van T. Junkins & Assocs., Inc., 736 F.2d at 657.

Defendants' objections to ¶¶ 49, 59, and 62 are also sustained. These averments by plaintiff are not based on personal knowledge as required by FederalRule of Civil Procedure 56(c)(4). See Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 2002) ("[A]n affidavit stating that the affiant 'believes' a certain fact exists is insufficient to defeat summary judgment by creating a genuine issue of fact about the existence of that fact."). Plaintiff shows no basis for personal knowledge of what the EEOC investigated or who took over his work duties while he was on leave. (O'Neal Decl. ¶¶ 49, 59, and 62.)

Defendants' objection to ¶ 64 is also sustained. Paragraph 64 reads: "Ms. [Mayor] Philyaw told me not to attempt to go back to work because Mr. Palmer was planning to fire me." (O'Neal Decl. ¶ 64.) This is hearsay that falls into no exception. Fed. R. Evid. 802.

Finally, defendants object to ¶ 33. Paragraph 33 states: "I worked about ninety (90) hours while on FMLA leave between keeping up with my required emails, testimony, and research in the SPI⁴ investigation, tasks assigned by the Chief, meetings with the Mayor, City Council, the City Manager, and mandatory training." (O'Neal Decl. ¶ 33.) Defendants argue that plaintiff provides no basis for how he determined he worked ninety hours during FMLA leave and that hisDeclaration contradicts his prior deposition testimony and sworn statements. Defendants' objection is sustained.

During his deposition, plaintiff repeatedly stated he could not recall the exact amount of time he had spent "keeping up" with emails, testimony, and research on the SPI investigation and claimed far less than ninety hours spent performing tasks assigned by the Chief and meeting with Mr. Palmer. (O'Neal Dep. [90] 129:18-130:2 (unsure oftime spent on emails), 114:21-115:15 ("maybe a couple of hours" spent meeting investigator), 144:2-25 ("maybe 30, 30 minutes" on task assigned by Chief Vande Zande), O'Neal Dep. Ex. 24 [90-24] ¶ 9 (one hour meeting with Mr. Palmer and Ms. Kendall to discuss his grievances).) Plaintiff's Declaration also does not explain why it differs from his testimony in response to unambiguous questions.⁵

II. STATEMENT OF FACTS

In support of their Motion for Summary Judgment, defendants as movants filed a Statement of Undisputed Material Facts ("DSUMF") [88-2]. See N.D. Ga. Civ. R. 56.1(B)(1). As required by Local Civil Rule 56.1(B)(2)(a), plaintiff submitted a Brief [96] and a response to that statement of facts. (See Pl.'s Resp. to DSUMF [96-1] ("PR-DSUMF").) Further, as allowed by Local Civil Rule 56.1(B)(3), plaintiff submitted his own statement of additional facts. (See Pl.'s Stat. of Add'l Material Facts [109] ("PSAMF").) As required, defendants submitted a response. (Defs.' Resp. to Pl.'s Stat. of Add'l Material Facts [120] ("DR-PSAMF").)⁶

The Court uses the parties' proposed facts and responses as follows. Where one side admits a proposed fact, the Court accepts it as undisputed for purposes of this Report and Recommendation and cites only the proposed fact. Where one side denies a proposed fact, the Court reviews the record cited and determines whethera fact dispute exists. If the denial is without merit, and the record citation supports the fact, then the Court deems it admitted and includes it herein. The Court sometimes modifies a proposed fact per the record cited to reflect the fact more accurately. The Court excludes immaterial proposed facts⁷ and excludes proposed facts that are stated as issues or legal conclusions⁸ (see N.D. Ga. Civ. R. 56.1(B)(1)(c)). The Court endeavors to rule on all objections. Given their numerosity, however, it is not feasible to do so and keep this R&R at a manageable length. Thus, if the Court includes a proposed fact to which an objection has been asserted, one may assume the Court considered but overruled the objection. Finally, the Court considers all proposed facts in light of the standards for summary judgment, infra Part III.

A. Plaintiff's Employment and Leave

Plaintiff was formerly employed as a Lieutenant in the City's Police Department. (DSUMF ¶ 1.) On September 30, 2017, plaintiff requested to meet with City Manager Palmer away from City Hall and, during the meeting, advisedMr. Palmer of concerns he had about then-Chief of Police, Todd Vande Zande, and his alleged mistreatment of plaintiff and other members of the Police Department. (Id. ¶ 2; PSAMF ¶ 4.) Plaintiff made a recording...