Rhodes v. Tuscaloosa Cnty. Bd. of Educ.

• Decision Date: 25 March 2013
• Docket Number: No. 7:10–CV–02164–SLB.,7:10–CV–02164–SLB.
• Citation: 935 F.Supp.2d 1226
• Parties: Nancy N. RHODES, Plaintiff, v. TUSCALOOSA COUNTY BOARD OF EDUCATION, Defendant.
• Court: U.S. District Court — Northern District of Alabama

935 F.Supp.2d 1226

Nancy N. RHODES, Plaintiff,

v.TUSCALOOSA COUNTY BOARD OF EDUCATION, Defendant.

No. 7:10–CV–02164–SLB.

United States District Court,

N.D. Alabama,

Western Division.

March 25, 2013.

John D. Saxon, Margaret Goldthwaite Murphy, John D. Saxon PC, Birmingham, AL, for Plaintiff.

Raymond E. Ward, Thomas W. Powe, Jr., Ray Oliver Ward & McGee LLC, Tuscaloosa, AL, for Defendant.

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, Chief Judge.

This case is presently pending before the court on defendant's Motion for Summary Judgment, (doc. 17),¹ and its Motion to Strike, (doc. 25). Plaintiff Nancy N. Rhodes has sued her employer, defendant Tuscaloosa Board of Education, alleging that defendant discriminated against her on the basis of her association with her disabled son and that it retaliated against her for complaining about discrimination. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that defendant's Motion to Strike, (doc. 25), is due to be granted in part and denied in part, and its Motion for Summary Judgment, (doc. 17), is due to be granted.

I. MOTION TO STRIKE

A. STANDARD OF REVIEW

“A district court has broad discretion in determining the admissibility of evidence” on a motion for summary judgment. Hetherington v. Wal–Mart, Inc., No. 12–13684, 2013 WL 811744, *1 (11th Cir. Mar. 5, 2013) (citing Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1243 (11th Cir.2009)). The Supreme Court has held the nonmoving party is not required to “produce evidence in a form that would be admissible at trial in order to avoid summary judgment.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (emphasis added). The Eleventh Circuit has “read this statement as simply allowing otherwise admissible evidence to be submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form.” McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996) (citing Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1017 (11th Cir.1987)) (emphasis in McMillian). In determining whether evidence is otherwise admissible, the court applies the same rules and standards as it would at trial. See Munoz v. International Alliance of Theatrical Stage Emp. and Moving Picture Machine Operators, 563 F.2d 205, 207 n. 1 (5th Cir.1977) (“[For] the most part, admissibility of evidence on a motion for summary judgment is subject to the general rules relating to form and admissibility at trial.”) (citations omitted).²

“The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment.” Macuba v. Deboer, 193 F.3d 1316, 1322–1325 (11th Cir.1999) (footnote, internal quotations and citations omitted). However, a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be “reduced to admissible evidence at trial.” Id. at 1323 (citations and internal quotations omitted).

[T]he phrases “reduced to admissible evidence at trial” and “reduced to admissible form” [are used] to explain that the out-of-court statement made to the witness (the Rule 56(c) affiant or the deposition deponent) must be admissible at trial for some purpose. For example, the statement might be admissible because it falls within an exception to the hearsay rule, or does not constitute hearsay at all (because it is not offered to prove the truth of the matter asserted), or is used solely for impeachment purposes (and not as substantive evidence).

Id. at 1323–24 (footnotes omitted).

The court does not consider unsworn statements. Dudley v. City of Monroeville, 446 Fed.Appx. 204, 207 (11th Cir.2011) (“Unsworn statements do not meet the requirements of Rule 56, so the district court could not—and properly did not—rely on the content of the citizen's [unsworn] statement. (citing Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 27 (11th Cir.2003)); ³see, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (unsworn statement did not meet the requirements of former Rule 56(e)); Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.2007) (district court did not abuse its discretion in refusing to consider an unsworn affidavit on a motion to alter or amend the judgment (citing Holloman v. Jacksonville Housing Auth., No. 06–10108, 2007 WL 245555, *2 (11th Cir. Jan. 30, 2007) (quoting Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980))); Oglesby v. Terminal Transport Co., Inc., 543 F.2d 1111, 1112 (5th Cir.1976) (court refused to consider unsworn affidavit in response to a motion for summary judgment).

B. DISCUSSION1. Darlene Webb Letters—Plaintiff's Exhibit 6 (Doc. 22–7)

Defendant contends, “Exhibit 6 consists of two letters written by Darlene Webb. The letters consist of material that is neither material nor relevant to this matter and of hearsay.” (Doc. 25 at 1 [citing doc. 22–7 at 2–3].) At the time she wrote the letters, Webb was a CNP Worker at Taylorville Primary School.⁴ (Doc. 17–7 at 87.) In these letters, Webb states that Stanley Hord, CNP Director, told her plaintiff “was a bad influence and a real [troublemaker], and ... she had gotten herself on everybody's list.” (Doc. 22–7 at 2; see also id. at 3 [“Mr. Hord told me [plaintiff] was trouble and a bad influence. He said as long as I run with trouble I would be considered trouble and I would not be getting any job.”].) Specifically, the first letter, written on August 14, 2008, states:

At around 11:45 my manager ... came to me and told me Mr. Hord wanted to talk to me in [my manager's] office. I went to her office and sat down. Mr. Hord began to talk to me about the hiring of managers over the summer. He said the lady at Lakeview was hired because she had 15 years of experience in child nutrition in Jefferson County. I replied to him “you never said that to me, you just said she lives right here.[”] I then said well I don't live far from there. The he said she lives right there!

I then said “I thought that other position that came up I had done well at the interviews.[”] Mr. Hord told me because I smoked and did not present myself well was why I was not chosen. Then he told me that the work at the university was not up to his standard. I replied by saying they must be up to the [fraternity's] standards because they have asked me for over a year to quit the school and take over the kitchen there. This is when he became red faced and appeared angry. Then he said and I quote “If you repeat what I am about to say to you, I will come back here and strangle you with my bare hands.” Then he went on to talk about an employee (Nancy Rhodes). He said she was a bad influence and a real [troublemaker], and how she had gotten herself on everyone's list. If I continue to associate with her I would be put in the same position and would never go anywhere. He said you know what I'm saying when I say if you have one bad child those that run with him are considered bad too. I replied I consider myself better than that and try to judge people on their merits. He replied you better listen to what I am saying.

The subject changed to manager classes and other classes that were offered to some but not everyone—I am referring to the hand picked few employees for processing free and reduced forms—I said I did not feel this was right. He replied since he found out after school he just picked a few.

After feeling his anger and the fact he was trying to intimidate [me] and he had already physically threatened me, I decided to stop the conversation and go back to work.

After processing the event later that afternoon, it occurred to me that this happened last year and was taking place again this year. So he knew before school was out.

(Doc. 22–7 at 2.)

In her second letter, addressed to the EEOC investigator ⁵ and dated November 11, 2008, Webb wrote:

Nancy Rhodes informed me you wanted clarification about the discussion between Mr. Stanley Hord and me regarding the statement where Mr. Hord told me Nancy was trouble and a bad influence. He said as long as I run with trouble I would be considered trouble and I would not be getting another job. Mr. Hord asked me to end a ten-year long friendship with Nancy if he was going to allow me to get a job as a manager anywhere in the county school system.

( Id. at 3.) These letters are not sworn and the record contains no other sworn testimony from Webb.

In his deposition, Hord testified that he had a conversation with Webb, wherein he discussed her association with plaintiff. (Doc. 17–7 at 89–95.) He denied making any statement to Webb about ending her friendship with plaintiff; however, he testified he had probably told Webb that plaintiff was a “bad influence” and a troublemaker ( Id. at 89, 91, 94.) He testified that plaintiff “stirs up stuff,” and he had told Webb that “they didn't need to talk about what they served that day or what somebody else did or who went where or whatever,” and that “they needed to take care of their in-house business and leave it there.” ( Id. at 93.) He testified:

[W]hat I was trying to say to her—and one of the problems they had in the kitchen is they would take stuff from Taylorville and talk to everybody in the world, including [plaintiff]. And one of the things was to try to get them out of the grapevine, so to speak, that ... she needed to leave that kind of stuff alone or else she was going to cause a problem between her and other managers.

... [I]f you want to move somewhere, if you are considered a busybody, you are not going anywhere; ... you are going to be stuck there ... and that was the basis of the conversation.

...

... I'm not asking anybody to end their friendship, it's just a matter of leave stuff alone.

( Id. at 90–91, 94.)

Plaintiff contends, “Webb's letters are relevant because they make it more probable that the Defendant failed to...