Shields v. Sinclair Media III, Inc.

• Decision Date: 22 June 2020
• Docket Number: Case No. 1:18-cv-593
• Parties: ERICA SHIELDS, Plaintiff, v. SINCLAIR MEDIA III, INC. , Defendant.
• Court: U.S. District Court — Southern District of Ohio

ERICA SHIELDS, Plaintiff, v. SINCLAIR MEDIA III, INC. , Defendant.

Case No. 1:18-cv-593

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

June 22, 2020

Cole, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

I. Introduction

Plaintiff Erica Shields, a resident of Kentucky, brings this pro se action against defendant Sinclair Media III, Inc. (Sinclair), a foreign corporation doing business in Hamilton County, Ohio. Plaintiff claims that Sinclair, her former employer, discriminated against her on the basis of her race, gender, and sexual orientation and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq. (Title VII) and Ohio law. This matter is before the Court on defendant's motion for summary judgment under Fed. R. Civ. P. 56 (Doc. 46), plaintiff's response in opposition to the motion (Doc. 52), and defendant's reply memorandum (Doc. 53).

II. Motion for summary judgment

Sinclair moves for summary judgment on each of plaintiff's claims. (Doc. 46). Sinclair denies that plaintiff's discharge was related to her race, gender, or sexual orientation. Sinclair alleges it terminated plaintiff's employment "because she violated Sinclair policy by improperly accessing another employee's email and searching for, printing, and taking a confidential document that she was unauthorized to access." (Id. at 2). Sinclair argues that plaintiff cannot produce any evidence to refute the legitimate non-discriminatory and non-retaliatory reason it has proffered for plaintiff's discharge. (Id.).

Plaintiff claims that Sinclair's proffered reason is not the true reason for her termination. (Doc. 52). Plaintiff denies many of defendant's factual allegations; she asserts that she cannot establish certain facts because she lacks knowledge and information that must be acquired through discovery; and she contends the Court must accept on summary judgment all statements she makes in opposition to Sinclair's assertions. (Id.). Plaintiff has submitted an unsworn "Declaration" in support of her opposing memorandum, which Sinclair challenges as invalid and inadmissible evidence.

A. Rule 56 standard

A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "[A] party seeking summary judgment . . . bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. See also Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992). The movant may do so by identifying that the non-moving party lacks evidence to support an essential element of its case. See Barnhart v. Pickrel, Shaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).

Evidence in the record is viewed in the light most favorable to the nonmoving party, with all reasonable inferences drawn to that party's benefit. Combs v. Int'l Ins. Co., 354 F.3d 568, 576-77 (6th Cir. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).Summary judgment is appropriate only where the evidence raises no genuine issues of material fact "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

Because plaintiff is a pro se litigant, her filings are liberally construed. Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) ("pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings"); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that the Court holds pleadings of pro se litigants to less stringent standards than formal pleadings drafted by lawyers).

B. Plaintiff's "Declaration"

Plaintiff has submitted a "Declaration" and exhibits in response to defendant's motion. (See Doc. 52). Defendant argues that the declaration and exhibits are not "admissible evidence" that can be considered by the Court on summary judgment pursuant to Fed. R. Civ. P. 56(c)(4). (Doc. 53 at 1-2, citing Nelson v. Clermont County Veterans Serv. Com'n, No. 1:11-cv-335, 2013 WL 5934393, at *5 (S.D. Ohio Nov. 1, 2013)). Defendant contends that the declaration lacks a valid signature as required under 28 U.S.C. § 1746 and S.D. Ohio Civ. R. 83.5. (Id. at 2). Defendant further argues that even if the declaration were signed, the Court cannot consider the declaration to the extent it is based on plaintiff's opinions and beliefs rather than her personal knowledge. (Id.). In addition, defendant argues that the Court cannot consider the exhibits attached to plaintiff's opposing memorandum because they are not authenticated. (Id. at 3, citing Saleh v. City of Warren, Ohio, 86 F. App'x 866, 868 (6th Cir. 2004)).

An affidavit must be sworn to in front of an "officer authorized to administer oaths," but "unsworn declarations under penalty of perjury" may be used with the same force and effect to support, evidence, establish, or prove any matter that is required or permitted to be supported byan affidavit. 28 U.S.C. § 1746; Stewart v. Wilkinson, No. 2:03-cv-0687, 2009 WL 1322307, at *2 (S.D. Ohio May 8, 2009) (holding that a declaration that was not notarized was admissible for purposes of summary judgment). Declarations executed within the United States must substantially conform to the following language: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct." 28 U.S.C. § 1746(2). To be valid, an unsworn declaration must be "signed, in writing, and dated, and must verify that its content is 'true under penalty of perjury.'" Tdata Inc. v. Aircraft Tech. Publishers, No. 2:03-cv-264, 2007 WL 464411, at *3 (S.D. Ohio Feb. 6, 2007) (citing 28 U.S.C. § 1746; Pollock v. Pollock, 154 F.3d 601, 612 n.20 (6th Cir. 1998)). See also Bailey v. Oakwood Healthcare, Inc., No. 15-11799, 2017 WL 2403573, at *1 (E.D. Mich. June 2, 2017) (§ 1746 permits an unsworn statement to suffice in place of a sworn statement only if the unsworn statement contains the signatory's statement that "the contents of the document are true under penalty of perjury, the declarant's signature, and the date.").

Local Rule 83.5(c) provides that "[t]he actual signature of a Filing User shall be represented, for ECF purposes, by 's/' followed by the typed name of the attorney or other Filing User," and a signature of this type "is equivalent to a hand-signed signature for all purposes. . . ." S.D. Ohio Civ. R. 83.5(c). A declaration by a non-attorney which contains an electronic signature instead of the actual signature is not properly signed and therefore is not competent evidence under Rule 56. Tdata, 2007 WL 464411, at *3 (citing Vanguard Transp. Sys., Inc. v. Volvo Trucks N. Am., Inc., No. 2:04-cv-889, 2006 WL 2373273, at *6 (S.D. Ohio Aug. 14, 2006) ("non-attorney's electronically signed declaration 'was not properly signed in compliance with the rules of this District, and will not be considered as evidence under Rule 56'")). See also Malibu Media, LLC v. Doe, No. 2:14-cv-2404, 2014 WL 12586343, at *2 (S.D. Ohio Dec. 4,2014) ("non-attorney's electronically signed declaration is not properly signed in compliance with the rules of this District") (citing Tdata Inc., 2007 WL 464411, at *3; Vanguard Transp. Sys., Inc., 2006 WL 2373273, at *6). See also S.D. Ohio Civ. R. 1.1(e) (the Local Rules, "supplemented by the Electronic Filing Policies and Procedures Manual (the 'ECF Manual'), as amended from time to time by the Clerk, govern use of the Electronic Case Filing ('ECF') system in this District"); CM/ECF Procedures Guide § 1.4 (Rev. July 2019) ("In general, the Clerk's Office will scan and file into CM/ECF . . . [o]riginal documents with original signature of a pro se litigant. . . .")¹.

Plaintiff's unsworn declaration does not comply with this Court's Local Rules and 28 U.S.C. § 1746. The declaration states that plaintiff "swears and affirms under penalty of perjury" that the assertions in her declaration are "true and correct," and the declaration includes the following typewritten text at the end:

"Executed on April 6, 2020 By: Erica Shields"

(Doc. 52 at 2, 4). The declaration does not include plaintiff's actual handwritten signature as required under § 1746 and S.D. Ohio Civ. R. 83.5. The declaration therefore is not admissible evidence, and plaintiff cannot rely on the statements in the declaration to oppose defendant's motion for summary judgment.

Even if plaintiff's unsworn declaration included a valid signature, it is not competent evidence to the extent the declaration does not include facts that would be admissible in evidence. "An affidavit or declaration used to support or oppose a motion [for summaryjudgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4); Totman v. Louisville Jefferson County Metro Govt., 391 F. App'x 454, 464 (6th Cir. 2010) (citing former Fed. R. Civ. P. 56(e)(1)).² Plaintiff's declaration includes some statements that are based on her firsthand knowledge, but numerous other statements in the declaration are based only on her information and belief. Statements in the declaration that are based on her information and belief do not comport with the requirement that a supporting affidavit or declaration offered on summary judgment be "made on personal knowledge." See Smith v. Doe, No. 1:14-cv-948, 2017 WL...