Story v. Sunshine Foliage World, Inc.

• Decision Date: 31 October 2000
• Docket Number: No. 8:99-CV-1614-T-17A.,8:99-CV-1614-T-17A.
• Citation: 120 F.Supp.2d 1027
• Parties: Paulette B. STORY, Plaintiff, v. SUNSHINE FOLIAGE WORLD, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

120 F.Supp.2d 1027

Paulette B. STORY, Plaintiff, v.SUNSHINE FOLIAGE WORLD, INC., Defendant.

No. 8:99-CV-1614-T-17A.

United States District Court, M.D. Florida, Tampa Division.

October 31, 2000.

COPYRIGHT MATERIAL OMITTED

Stanley Edward Marable, Law Office of Stanley E. Marable, Sarasota, FL, for Paulette B. Story, plaintiff.

Mark E. Levitt, Shannon D. Bream, Allen, Norton & Blue, P.A., Tampa, FL, for Sunshine Foliage World, Inc., defendant.

ORDER ON MOTION TO STRIKE AFFIDAVIT AND ON MOTION FOR SUMMARY JUDGMENT

KOVACHEVICH, District Judge.

This cause is before the Court on Plaintiff, Paulette B. Story's, Motion to Strike Affidavit, (Dkt.17), Defendant, Sunshine Foliage World, Inc.'s, response thereto, (Dkt.22), Defendant's Motion for Summary Judgment, (Dkts.11-12), and Plaintiff's response thereto, (Dkts.18-21).

I.Background

This case arises under the Americans with Disabilities Act,42 U.S.C. § 12101, et seq.(ADA).Plaintiff brings this cause of action under the ADA, alleging discrimination based on an alleged disability with regard to her termination from employment at Defendant's business.A recitation of Plaintiff's employment history is relevant in determining whether to grant Defendant's Motion for Summary Judgment.Where there are conflicts in the evidence, they are resolved, for purposes of Defendant's Motion for Summary Judgment, in favor of Plaintiff, as the nonmoving party.

It is imperative to note that Sunshine Foliage World, Ltd., is Defendant's proper name, even though the name of Defendant on the case file is listed as Sunshine Foliage World, Inc.(Dkt.4).Plaintiff was hired by Defendant in January of 1986, and continued to work for Defendant as an office manager until the date of Plaintiff's termination on November 21, 1998.(Dkts.16, 20).Plaintiff claims that Defendant terminated her on the basis of her alleged disability, and, therefore, violated the ADA.(Dkt.16).Defendant is a Florida limited partnership, which may be named as an entity under Chapter 620 of the Florida Statutes, that maintains a place of business in Wachula, Florida. (Dkt.16).Defendant employs more than fifteen (15) employees, and is a covered entity under the ADA.(Dkt.16).

Plaintiff contends that Plaintiff fully, adequately, and completely performed all of her job duties while she was employed by Defendant. (Dkt.16).Plaintiff claims that, at all times material hereto, she suffered from Alpha-1, Antitrypsin deficiency, a congenital condition which causes severe respiratory problems.(Dkts.16, 20).Plaintiff also claims that she is an individual with a "disability," as that term is defined in § 3(2) of the ADA,42 U.S.C. § 12101(2).(Dkt.16).Plaintiff states that she informed Defendant of her condition and disability in June of 1997, but continued to perform her job duties, despite being required to take intravenous (IV) antibiotics everyday after work for a period of two (2) weeks.(Dkt.16).

Plaintiff states that Defendant was concerned about her condition and that Bill Lambert, an agent of Defendant, had a meeting with Plaintiff on November 11, 1998, to discuss whether other employees of Defendant could handle Plaintiff's duties if she became ill and unable to work for a period of two (2) weeks or more.(Dkt.16).Plaintiff alleges that, shortly thereafter, she received a letter from Defendant, dated November 21, 1998, stating that she was terminated from her employment with Defendant, because her services were no longer needed.(Dkt.16).

Plaintiff further alleges that her disability was the sole or substantial motivating factor for Defendant's decision to terminate her employment.(Dkt.16).Plaintiff further contends that Defendant acted with malice or reckless indifference to the federally protected rights of Plaintiff, and that Defendant's termination of her employment, due to her alleged disability, constitutes discrimination in violation of the ADA.(Dkt.16).Plaintiff claims that as a direct and proximate result of Defendant's termination of her employment, Plaintiff has suffered lost wages and benefits, lost employment opportunities, substantial damages from pecuniary losses, mental anguish, humiliation, embarrassment, loss of enjoyment of life, and other non-pecuniary losses.(Dkt.16).

II.Procedural History

On December 2, 1998, Plaintiff timely filed a written charge of employment discrimination with the United States Equal Employment Opportunity Commission(EEOC) and the Florida Commission on Human Relations(FCHR).(Dkts.1, 16).In the EEOC complaint, Plaintiff alleges that Defendant terminated her because of her alleged disability.(Dkts.1, 16).On April 22, 1999, the EEOC issued Plaintiff a "Notice of Right to Sue."(Dkts.1, 16).Thereafter, Plaintiff timely filed a Complaint with this Court on July 12, 1999.(Dkt.1).On June 30, 2000, Plaintiff filed an Amended Complaint with this Court correcting allegations made with respect to the type of business that Defendant operated.(Dkt.16).

III.Motion to Strike Affidavit

A.Standard of Review

Federal Rule of Civil Procedure 12(f) provides that upon motion by a party or upon the court's initiative at any time, the court may order stricken from any pleading any "redundant, immaterial, impertinent, or scandalous matter."A motion to strike will "usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties."Seibel v. Society Lease, Inc.,969 F.Supp. 713, 715(M.D.Fla.1997);see alsoPoston v. American President Lines, Ltd.,452 F.Supp. 568, 570(S.D.Fla.1978)(citingAugustus v. Board of Public Instruction,306 F.2d 862(5th Cir.1962)).An affidavit submitted in connection with a summary judgment motion is subject to a motion to strike if it does not measure up to the standards of Rule 56(e) of the Federal Rules of Civil Procedure.SeeBarnebey v. E.F. Hutton & Co.,715 F.Supp. 1512(M.D.Fla.1989).

Rule 56(e) of the Federal Rules of Civil Procedure states that an affidavit "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to matters stated therein."Because affidavits must be based on personal knowledge, an affidavit based on nothing more than "information and belief" is not sufficient as a matter of law.SeeGivhan v. Electronic Engineers, Inc.,4 F.Supp.2d 1331, 1334(M.D.Ala.1998).According to Federal Rule of Civil Procedure 56(e), an affidavit must be stricken when it is a conclusory argument rather than a statement of fact, or when the affidavit is not based on personal knowledge.SeeInterfase Marketing, Inc. v. Pioneer Technologies Group, Inc., No. 91-572-CIV-T-17A, 1993 WL 229601, at *2(M.D.Fla.June 23 1993);see alsoGalindo v. Precision American Corp.,754 F.2d 1212, 1216(5th Cir.1985).The court may only consider evidence that would be admissible in trial.Seeid.Therefore, the court may not consider inadmissible hearsay when deciding a motion for summary judgment.SeeBush v. Barnett Bank of Pinellas County,916 F.Supp. 1244, 1256(M.D.Fla.1996).When an affidavit submitted in support of, or opposition to, a motion for summary judgment contains inadmissible evidence, the court may strike the inadmissible portions of the affidavit and consider the rest.SeeLee v. National Life Assurance Co.,632 F.2d 524, 529(5th Cir.1980).

Federal Rule of Evidence 801 defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."There are two elements which must be present before an out of court utterance may be rendered inadmissible as hearsay: (1) the out of court utterance must be a "statement," i.e., a verbal assertion or conduct intended as an assertion; and (2) the statement must be offered to prove the truth of the matter that it asserts.SeeUnited States v. Cruz,805 F.2d 1464, 1477-78(11th Cir.1986)(citations omitted).

Therefore, "verbal or nonverbal conduct, when it is offered as a basis for inferring something other than the matter asserted," is excluded from the hearsay rule.Id.(citations omitted)."Consequently, an utterance may be admitted to show the effect it has on a hearer.Such verbal acts are not in the first instance assertive statements and [are] not offered to prove the truth of the matter asserted."Id.(citations omitted);see alsoGivhan,4 F.Supp.2d at 1335(stating that even though an affidavit contains statements that recount information and statements allegedly made by other individuals, the information and statements made are admissible when they are offered to prove only that the statements were made, not when they are offered to prove the truth of the matters asserted therein);Federal Deposit Insurance Corp. v. Stahl,89 F.3d 1510, 1521(11th Cir.1996)(stating that where a transcript is being offered to show personal knowledge of the alleged problems surrounding an individual's employment, and not to establish the intrinsic truth of those respective problems, the transcript is not considered hearsay);United States v. Parry,649 F.2d 292, 295(5th Cir.1981)(stating that an out of court statement offered merely to show circumstantial evidence of the declarant's knowledge of the existence of some fact, as opposed to being offered to prove the truth of the matter asserted, is admissible and is not considered hearsay);United States v. Jennings,527 F.2d 862, 869(5th Cir.1976)(stating that where a statement is offered merely to show that the statement was made, then the statement is not considered hearsay).

B.Analysis

The Court first turns to the issue of whether Defendant's submission of a corrected affidavit of Beverly Cleland is to be accepted by the Court in support of Defendant's motion for summary judgment.Plaintiff alleges that the initial affidavit of Beverly Cleland, (Dkt.12),...