Rabe v. Nationwide Logistics, Inc., 4:07-CV-00293 SNL.

• Decision Date: 10 January 2008
• Docket Number: No. 4:07-CV-00293 SNL.,4:07-CV-00293 SNL.
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Andrew RABE, Plaintiff, v. NATIONWIDE LOGISTICS, INC., Defendant.

530 F.Supp.2d 1069

Andrew RABE, Plaintiff, v. NATIONWIDE LOGISTICS, INC., Defendant.

No. 4:07-CV-00293 SNL.

United States District Court, E.D. Missouri, Eastern Division.

January 10, 2008.

D. Maimon Kirschenbaum, Joseph and Herzfeld, LLP, New York City, Eli Karsh, Liberman & Goldstein, St. Louis, MO, for Plaintiff.

Margaret A. Hesse, Michelle H. Basi, Tueth and Keeney, St. Louis, MO, for Defendant.

MEMORANDUM

STEPHEN N. LIMBAUGH, Senior District Judge.

On or about January 9, 2007, Plaintiff Andrew Rabe filed the instant action in the Circuit Court of the City of Saint Louis, Missouri. Thereafter, Defendant Nationwide Logistics, Inc. (hereinafter "Nationwide") removed the case to the United States District Court for the Eastern District of Missouri, pursuant to U.S.C. §§ 1441(a) & (b), 1446, and 1331.

This matter comes before the Court on Nationwide's motion for summary judgment (Doc. # 14, filed Nov. 9, 2007). Upon consideration of the parties' arguments and evidence in support thereof, the Court HEREBY DENIES the motion; the analysis found herewith,

Legal Standard

Although summary judgment motions may be viewed as tools of "great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact," Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.1988); courts have repeatedly recognized the severity of summary judgment as a remedy, to be granted only in cases where the movant establishes his right to judgment with such clarity so as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977); Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 209 (8th Cir.1976).

After the movant demonstrates the absence of any genuine issue of material fact, Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Mt. Pleasant, 838 F.2d at 273; the nonmoving party must set forth specific facts which demonstrate sufficient evidence for a potential jury verdict in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003) ("... the nonmoving party must `substantiate his allegations with sufficient probative evidence.∴∴ based on more than mere speculation, conjecture, or fantasy.'") (quoting Wilson v. Int'l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995)); see also. FED.R.CIV.P. 56(e).

In ruling on a motion for summary judgment, the court should review all facts supported by the" record, and any logical inferences arising therefrom, in the light most favorable to the nonmoving party. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). See also, e.g., FED.R.CIV.P. 56(e); Robert Johnson Grain Co., 541 F.2d at 210 (conflicts of evidence must be construed in favor of non-movant). In that way, summary judgment should not be granted "unless all the evidence points one way and is susceptible to no reasonable inferences sustaining the position of the nonmoving party." Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.1998); see also Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir.2003) (citing Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir.1999)).

Evidentiary Matters

At the summary judgment stage, "the Court may consider only admissible evidence, and must disregard portions of declarations that were made without personal knowledge, consist of hearsay, or purport to state legal conclusions as fact." Woods v. Wills, 400 F.Supp.2d 1145, 1162 (D.Mo. 2005).

I. Documents

In support of its motion, Nationwide offers a host of documents for the Court's consideration. The Court notes that, while a summary judgment motion may be supplemented by affidavits, depositions, and/or answers to interrogatories; where a party makes reference to a document, it must first properly authenticate the same. FED.R.CIV.P. 56(e)(1). Specifically, unless the parties stipulates as to their contents and authenticity, FED.R.EVID. 1007; documents must meet a two-prong test: (1) they must be attached to and authenticated by an affidavit (or a sworn or certified copy must be attached to or served with the affidavit); and (2) the affiant must be a competent witness through whom the documents may be received into evidence at trial. Stuart v. General Motors. Corp., 217 F.3d 621, 636 n. 20 (8th Cir.2000); FED. R.CIV.P. 56(e). See also 11 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 56.14(2)(c) (3d ed. 1997) ("Unauthenticated documents, once challenged, cannot be considered by a court in determining a summary judgment motion."). Therefore, regardless of the documents' essential nature or probative value; without proper foundation, they will not be permitted for summary judgment purposes. Cordray v. 135-80 Travel Plaza, Inc., 356 F.Supp.2d 1011, 1015 (D.Neb.2005).

At the outset, the Court is troubled with Nationwide's disregard for certifying and/or authenticating its submitted documents, even after such procedural deficiencies were raised by Mr. Rabe during the parties' deposition and in his opposition to the instant motion. Nevertheless, the Court gives practical effect to the record before it and shall consider Nationwide's exhibits where the parties' sworn testimony lends sufficient foundational support thereto.^FN1

^FN1. However, where the record is lacking, and there is simply no way for the Court to know the documents' date of origin, author, and/or purpose; the deficiency becomes more than a matter of form. Namely, Exhibits 4, 8, 14, 15, and 20 (Doc. # 16 exs. 7, 12, 18, 19 & 24) were in no way authenticated, and are therefore precluded from the Court's consideration.

Specifically, Exhibits 6, 9, and 22 (Doc. # 16 exs. 9, 13 & 26) have been sufficiently authenticated by the parties' testimony, and shall be considered. Similarly, Exhibits 16, 17, 18, 19, and 23 (Doc. # 16 exs. 20, 21, 22, 23 & 27) shall be received. In contrast, Exhibits 10, 11, 12, and 21 (Doc. # 16, ex. 14, 15, 16 & 25) are excluded from the Court's analysis.^{FN2, FN3}

^FN2. The record does not establish the authenticity of any of these documents. In fact, the four are similarly situated in that Ms. Baker (Nationwide's human resources manager) testified, that; although she did know by whom, or at what point, they were created; she had viewed the documents prior to litigation, when Mr. McGeehan (Mr. Rabe's supervisor) gave them to her to be placed in Mr. Rabe's personnel file. However, this testimony is controverted and fatally undermined by the remainder of the record. To wit, Mr. McGeehan stated that he did not know of any time at which he presented these documents to be filed with Ms. Baker or any other person; and rather, all of Mr. Rabe's files were stored in his office during times relevant here. Mr. McGeehan further testified that, under ordinary circumstances, he would have provided Mr. Rabe with copies of the disputed documents; however, he could not recall creating and/or distributing the documents to any person(s). To that end, Mr. Rabe and Mr. Parks (Nationwide's Chief Financial Officer) both testified that they had never viewed or received these documents prior to the litigation.

^FN3. The Court further notes that, under the business records exception to the hearsay rule, a document may be admitted into evidence only if authenticated by the "testimony of the custodian [of the record] or other qualified witness." However, this exception's applicability requires that the business regularly conduct the activity, i.e. create and store the memorandum, FED.R.EVID. 803(6); and the parties' testimony establish the same. (Cf. McGeehan Dep.) Even assuming that the authenticity of these documents had been established, the record is replete with allegations undermining the documents' credibility, i.e. the absence of any signatures and/or dates See Shelton v. Consumer Products Safety Com'n, 277 F.3d 998, 1010 (8th Cir.2002) (Although the party opposing admissibility bears the burden to so establish, the business records exception may not apply where problems of untrustworthiness appear, i.e. "the source of information or the method or circumstances of preparation indicate lack of trustworthiness.") (quoting FED.R.EVID. 803(6)).

As a final matter, in his opposition to Nationwide's instant motion, Mr. Rabe offers a copy of a "Job Performance Appraisal," dated January 27, 2005 (Doc. # 18, ex. 6). In light of the record, the Court is satisfied with this document's authenticity (Baker Dep.; Parks Dep.). See FED.R.EVID. 901(b)(2).

Parties' Testimony

Next, in considering the parties' testimony, the Court is limited to those statements made with personal knowledge. FED.R.CIV.P 56(e)(1). Therefore, testimony made on information and belief, or that which constitutes personal opinions, as opposed to facts, shall be automatically excluded. See Camfield Tires, Inc, v. Michelin Tire Corp., 719 F.2d 1361, 1367 (8th Cir.1983) (An affiant's reliance on information and belief is insufficient to create an issue of material fact.).

Background and Findings

Starting in September of 2003, Mr. Rabe occupied a temporary position at Nationwide. By January of 2004, Nationwide hired Mr. Rabe as a full-time senior accountant. From December of 2004 through at least March of 2005, Mr. Parks served as Mr. Rabe's supervisor. During that time period, Mr. Parks testified that he had no problems with Mr. Rabe's conduct or performance. Thereafter, through and until his termination in August of 2005, Mr. Rabe was supervised by Mr. McGeehan.

On August 17, 2005, Mr. Rabe informed Mr. McGeehan that his wife was scheduled to give birth on September 23, 2005, and inquired about taking two weeks of FMLA (Family and Medical Leave Act) leave for the event. Mr. Rabe alleges that Mr. McGeehan responded that (i) he would not be eligible to take leave if the company was ...