Suggs v. Sam's E., Inc.

• Decision Date: 02 April 2020
• Docket Number: Case No. 1:18-cv-01064-JEO
• Parties: RONALD G. SUGGS, Plaintiff, v. SAM'S EAST, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

RONALD G. SUGGS, Plaintiff, v. SAM'S EAST, INC., Defendant.

Case No. 1:18-cv-01064-JEO

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION

April 2, 2020

MEMORANDUM OPINION

In this action, Plaintiff Ronald G. Suggs brings claims against his former employer, Sam's East, Inc. ("Sam's"), under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA") and the Alabama Age Discrimination in Employment Act, Ala. Code § 25-1-20 et seq. ("AADEA"). (Doc. 8).¹ Now before the court² is Defendant's motion for summary judgment. (Doc. 25). The motion has been fully briefed, (docs. 26, 32, 34), and is ripe for decision. Also before the court is Defendant's motion to strike. (Doc. 33). It too is fully briefed, (docs. 37, 38), and ripe for decision. For the reasons that follow, the motion for summary judgment is due to be granted in full. The motion to strike is due to be granted in part and mooted in part.

I. MOTION TO STRIKE

"A district court has broad discretion in determining the admissibility of evidence" on a motion for summary judgment. Hetherington v. Wal-Mart, Inc., 511 F. App'x 909, 911 (11th Cir. 2013).³ 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 (1986). 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 omitted).

"The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment." Macuba v. Deboer, 193 F.3d 1316, 1322-25 (11th Cir. 1999) (footnote, internal quotations, and citations omitted). However, as explained above, a district court may consider a hearsay statement in deciding a motion for summary judgment if the statement could be "reduced to admissible evidence at trial":

[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).

Defendant moves to exclude two⁴ statements from the court's consideration on summary judgment. First, Defendant seeks to exclude portions⁵ of Plaintiff's testimony regarding a telephone conversation between him and Christopher Simmons.⁶ (Doc. 33 at 6; Doc. 38 at 2-4). Second, Defendant seeks to exclude a statement in Plaintiff's brief that "Defendant's Club Manager, Lisa Lewis, issued a vendetta to get rid of him after he called her out for racism." (Doc. 33 at 6-7; Doc. 38 at 4-5). The court discusses each statement in turn.

A. Telephone Conversation Between Plaintiff and Simmons

Defendant moves to strike the following testimony from Plaintiff's deposition regarding a telephone call between him and Simmons:

• Simmons told Plaintiff that "when he was hired he said my very first orders from Lisa was to do anything and everything to get you out of there. . . . [H]e said he was - he was under direct orders." (Suggs Dep. at 113).

• "One of the things he said was he related a conversation that Lisa and I had had that I have - I have absolutely no recollection of. But in something we were saying, Lisa had made a remark, and I told her, you may want to be careful how you say that to the associates because it could be construed as racial discrimination. To be careful. And he said when he - when Lisa hired him, his exact words to me was [sic], get rid of him; ain't no old white guy going to tell me what to do." (Id. at 114).

• "I have no recollection of [the conversation with Lisa Lewis]. Like I said, the way I - he said you had - it was just one of those things she said you had just made a suggestion that she may want to rephrase - you know, she may want to rephrase what she said because what she was saying, the way she was saying it, could be misconstrued as racial discrimination." (Id.).

• ". . . I'm relying on what he told me. I do not remember the conversation [with Lewis]." (Id. at 115).

• "And if I said anything like that to her, it was with the best of intentions. I was trying to keep her from saying something that would get somebody else upset. It wasn't - it wasn't trying to say anything racially motivated or anything. But it couldn't have been a major conversation because I have no memory of it." (Id.).

• Q: "Do you know that it [the conversation] happened?"

A: "No, I don't. Like I said, I don't recall it at all. I just know that's what CJ [Simmons] told me that he was instructed with Lisa when she hired him. That I was number one on the list. I was - his job was to get rid of me." (Id.).

As background, this call took place after Simmons had been terminated from Defendant, and the only testimony regarding the conversation is Plaintiff's testimony - there is no testimony from Simmons in the record. There is also no testimony from Lewis in the record. Defendant contends that this testimony is inadmissible double hearsay. (Doc. 33 at 6; Doc. 38 at 2-4). Plaintiff responds that the testimony is admissible under Federal Rule of Evidence 801(d)(2)(D) as an admission by a party opponent. (Doc. 37 at 1-3).

Under the Federal Rules of Evidence, "'[h]earsay' is 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." Fed. R. Evid. 801(c). As a general rule, "[h]earsay is not admissible except as provided by these rules . . . ." Fed. R. Evid. 802. Hearsay within hearsay, or so-called "double-hearsay," is admissible only if each part of the combined statements conforms with an exception to the hearsay rule. Fed. R. Evid. 805. Excepted from the definition of hearsay is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship," which is deemed an admission by a party opponent. Fed. R. Evid. 801(d)(2)(D). Thus, statements made by a supervisory official who plays some role in the decision-making process are generally admissible. See, e.g., Kidd v. Mando Am. Corp., 731 F.3d 1196, 1208 (11th Cir. 2013); Miles v. M.N.C. Corp., 750 F.2d 867, 873-75 (11th Cir. 1985).

As Defendant points out in its reply brief, Plaintiff's statements present a classic "double hearsay" problem. Both Lewis' alleged statements to Simmons and Simmons' alleged statements to Plaintiff were made out of court. Additionally, Plaintiff is clearly offering them for the truth of the matter asserted - that is, that Lewis wanted Simmons to get rid of Plaintiff because of his race and age and that Plaintiff had a conversation with Lewis regarding rephrasing a discriminatory remark. As such, both statements must satisfy an exception to the hearsay rule. They cannot.

Plaintiff's argument that the statements should be allowed under the exception for admissions of a party-opponent in Rule 801(d)(2) is incorrect. First, as to the statements between Lewis and Simmons, the conversation could arguably constitute an admission of a party opponent. But the problem here is that Plaintiff is the only person who testified regarding these statements. There is no evidence in the record from Simmons or from Lewis. So, to the extent that the first layer of hearsay could come under the Rule 801(d)(2) exception, there is no exception to cover the second layer. In other words, because it is the Plaintiff's statement, and not Simmons' statement, Plaintiff must identify an additional exception to the rule against hearsay. See Kidd v. Mando, 731 F.3d 1196, 1208 n.15 (11th Cir. 2013) (even if plaintiff could demonstrate a statement was an admission by a party opponent, the statement would not automatically be admissible because someone else relayed the statement). Plaintiff does not, and cannot, identify such an exception.

Second, as to the statements regarding the alleged conversation between Plaintiff and Lewis, although Plaintiff could testify himself regarding the comment he allegedly made to Lewis regarding perceived racial discrimination, Plaintiff testified he did not remember making the comment. In fact, Plaintiff testified that he had to rely totally on Simmons' recollection of the comment: "I'm relying on what [Simmons] told me. I do not remember the conversation [with Lewis]." (Id. at 115). As such, Plaintiff's testimony regarding this alleged statement is inadmissible hearsay. For these reasons, the motion to strike as it relates to the above testimony is due to be granted.

B. Vendetta Statement

Defendant also seeks to exclude a statement in Plaintiff's brief that "Defendant's Club Manager, Lisa Lewis, issued a vendetta to get rid of him after he called her out for racism." (Doc. 33 at 6-7; Doc. 38 at 4-5). Defendant argues that Plaintiff makes this statement without any citation to the record, "does not identify to whom Lewis allegedly issued such vendetta, there is no testimony that Lewis made such a statement to Plaintiff, and, as such, the statement is unsupported and due to be stricken." (Doc. 33 at 6-7). In response, Plaintiff argues that "[t]his statement was made in the Plaintiff's concluding paragraph to its Response in Opposition to the Defendant's Motion for Summary Judgment and acts as a...