Savacool v. Weir Oil & Gas
| Docket Number | Civil Action 1:20-cv-01285-RBJ |
| Decision Date | 27 September 2021 |
| Parties | DAVID SAVACOOL, Plaintiff, v. WEIR OIL & GAS, Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER ON MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Weir Oil and Gas's (also known as S.P.M. Flow Control, Inc. and “SPM” for purposes of this order) motion for summary judgment (ECF No. 32) and motion to strike Plaintiff David Savacool's declaration (ECF No. 35). For the reasons discussed below, the motion to strike is GRANTED IN PART AND DENIED IN PART and the motion to for summary judgment is GRANTED.
This case arises from plaintiff's employment as a service technician at SPM's Fort Lupton site. ECF No. 32. Plaintiff was hired by Branch Manager Santos Soto in late summer of 2014; he was forty-eight years old at the time. Id. He was initially hired for a position called “Service Technician 1.” Id. In December 2016, plaintiff was promoted by Mr. Soto to the position of “Service Technician 2.” Id. In December 2017, plaintiff was again promoted, this time to “Service Technician 3.” Id. As a Service Technician 3, Mr. Savacool assembled and tested various mechanical components. Id. Because plaintiff was a senior service technician, he was also responsible for indirect leadership and occasional safety meetings. Id.
Mr. Savacool alleges that, for years, his coworkers have called him names relating to his age, such as “papa” or “old man.” ECF No. 1. He brought this to the attention of his direct supervisor, Donnie Hughett, in 2017, but the name-calling did not cease. Id. He alleges that Mr. Hughett made similar comments to him. ECF No. 33-3 at ¶3.
In November 2018, plaintiff had a stroke. However, he was back on the job within four days and did not have any continuing symptoms or consequences. Id. at ¶4. Plaintiff alleges that he brought a renewed complaint of age-related name-calling to Mr. Hughett's attention in December 2018 because his coworkers were making repeated comments about his age and need to use the bathroom frequently. Id. at ¶7. He again requested that Mr. Hughett stop these comments, but the comments continued. Id.
According to the motion for summary judgment, before December 2018 Mr. Savacool had had at least four “counselings.” ECF No. 32 at 5. Defendants state that on December 20, 2018 plaintiff had an accident on a forklift that damaged a fire extinguisher. Id. Plaintiff disputes that this accident occurred, but he nonetheless was given written counseling and attended a meeting about the alleged accident. Id. Shortly thereafter, he had certain leadership duties removed (without change to his title or pay). Id. at 5-6.
On January 2, 2019, plaintiff's wife submitted an anonymous complaint to SPM's ethics hotline. Id. at ¶8. His wife complained of employees “returning from lunch smelling of marijuana, employees clocking in before arriving at work, employees leaving a bag of white powder with my [plaintiff's] name on the bag (supposedly as a joke), and equipment and trailers being damaged without the damage being reported.” Id. at¶9. Following this complaint, plaintiff was called into Mr. Soto's office and asked if he knew about the anonymous complaint. Id. Plaintiff explained that his wife made the complaint based on things he had told her. Id.
On April 25, 2019, plaintiff lifted a part that weighed fifty-four pounds and was injured in the process. Id. SPM has a safety policy that requires employees to use lift assists when moving any item exceeding fifty pounds. Id. SPM opened an investigation into this incident. Id.
On April 28, 2019, one of Mr. Savacool's coworkers, Mr. Kameron Belle, allegedly saw Mr. Savacool smoking outside of SPM's designated smoking area and near the propane tanks on site. Id. Mr. Savacool contends that he was thirty-five feet away from the building and the propane tanks, although he admits he was smoking outside the designated smoking area. ECF. No. 1. Mr. Belle wrote an email to plaintiff's supervisor, Donnie Hughett, detailing the smoking incident. ECF No. 32. Mr. Hughett shared that email with human resources partner Sara Caminada and Mr. Soto. Id. Ms. Caminada recommended termination based on the severity of the smoking infraction coupled with his past counselings. Id. Mr. Soto agreed with Ms. Caminada's recommendation for termination. Id. On May 2, 2019, Mr. Savacool was given his final counseling (for the lifting infraction) and attended a termination session (for smoking outside of a designated area). Id.
Plaintiff filed the instant age discrimination action in April of 2020. ECF No. 1. He alleges that SPM fired him so that it did not have to worry about the physical ailments associated with plaintiff's aging. Id. He alleges that he was fired for an impermissible reason: his age. Id.
After discovery, defendants moved for summary judgement. ECF No. 32. Plaintiff, in its response to defendant's motion, included a declaration by plaintiff. ECF No. 33-3. Defendant moved to strike this declaration claiming it hearsay, contradictory, and without sufficient basis. ECF No. 35.
The Court is allowed to strike from a pleading any “redundant, immaterial, impertinent or scandalous matter.” Ctr. For Native Ecosystems v. U.S. Fish & Wildlife Serv., 2010 WL 2035580 at *2 (D. Colo. 2010). A matter is redundant if it consists of “allegations that constitute a needless repetition of other averments or which are wholly foreign to the issue to be decided.” Id. “A matter is immaterial if it has no essential or important relationship to the claim for relief ple[d].” Id. A matter is impertinent when “it does not pertain and is not necessary to the issues in question in the case. Id. A matter will be struck as scandalous only if it will degrade a party's “moral character, contain repulsive language, or detract from the dignity of the court.” Sierra Club v. Tri-State Generation & Transmission Ass'n, Inc., 173 F.R.D. 275, 285 (D. Colo. 1997). Even when a challenged allegation falls within the categories set forth in the rule, “a party must usually make a showing of prejudice before the court will grant a motion to strike.” Id. (citing 5A Wright & Miller § 1382, at 690-92).
To be considered on a motion for summary judgment, evidence must be admissible. See L. Co. v. Mohawk Const. & Supply Co., 577 F.3d 1164, 1170 (10th Cir. 2009). As a result, portions of declarations that are based on hearsay or do not come from the personal knowledge of the declarant should be struck for purposes of a motion for summary judgment. See Fuller v. Old Dominion Freight Line, Inc., 2018 WL 2335696 at * 2 (D. Colo. May 23, 2018). “Under the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (internal quotations omitted).
“Courts may disregard an otherwise proper affidavit if the court first determines that the affidavit's purpose is to create a sham issue of material fact, but there is no authority to disregard the affidavit simply because it contradicts an affiant's prior sworn testimony.” Hamer v. City of Trinidad, 441 F.Supp.3d 1155, n.4 (D. Colo. 2020). To determine whether an affidavit creates a sham fact issue, the court considers whether: “(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts to explain.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir.2001).
SPM argues that several statements plaintiff made in his declaration should be struck because they would be inadmissible hearsay and thus are not appropriate for consideration on a motion for summary judgment. See ECF No. 35. Plaintiff responds that the statements made in the declaration are not hearsay. See ECF No. 36.
Hearsay is an out-of-court statement that a party seeks to introduce to prove the truth of the matter asserted. Fed.R.Evid. 801(c). An out-of-court statement offered to show the effect of that statement on a listener is not hearsay. See People v. Robinson, 226 P.3d 1145, 1151 (Colo.App. 2009). A statement offered against a party opponent is excluded from the hearsay definition if it was made by the party's agent or employee on a matter within the scope of the employment relationship. Fed.R.Evid. 801(d)(2)(D).
In paragraph three of the Savacool Declaration (“the declaration”), ECF No. 33-3, plaintiff wrote that “my co-employees began calling me ‘Papa' and ‘old man' and told me to ‘move my slow ass.'” Id. at ¶3. Plaintiff also wrote that his supervisor, Mr. Hughett, also called him these names and told him that he should retire. Id. Defendant asserts that this is hearsay and asks that it be struck. Plaintiff obviously does not seek to prove that he is an “old man” or that he should retire. He seeks to prove that the statements were made which could have some tendency, at least with respect to the Hughett statements, to show age discrimination. The statements of co-workers and Mr Hughett also have some tendency to support plaintiff's claim that he felt demeaned and belittled by the statements. The statement in paragraph seven, that “my co-employees constantly made fun of the number of trips I went to the bathroom, blaming it on my age, ” is similar. ECF No. 33-3 at ¶7. It is not introduced for the truth of the matter. What co-workers said might...
To continue reading
Request your trial