Tolefree v. Swift Transp. Co.
| Decision Date | 26 May 2021 |
| Docket Number | No. 2:19-cv-00693-KJM-AC,2:19-cv-00693-KJM-AC |
| Parties | Ronniesa Tolefree, Plaintiff, v. Swift Transportation Co. Inc., et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Swift Transportation Co., Inc. and its parent company, who are together the defendants in this employment discrimination action, move for summary judgment. Mot., ECF No. 15; Mem., ECF No. 15-1. Plaintiff Ronniesa Tolefree opposes the motion, ECF No. 24, and Swift has replied, ECF No. 25. On August 14, 2020, the court heard oral argument on the motion by videoconference. Jasmine Duel appeared for Ms. Tolefree and Alicia Kennon for Swift.
Several factual disputes remain unresolved, chief among them whether Ms. Tolefree could perform the essential duties of her position as a truck driver while she was pregnant. A trial is necessary to resolve these disputes. Ms. Tolefree has not, however, cited clear and convincing evidence of "oppression, fraud, or malice," as is required for her claim of punitive damages. Swift's motion for summary judgment is thus granted in part and denied in part.
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Several disputes about what evidence the court should consider are best resolved at the outset. Those disputes fall into two categories: (A) whether Ms. Tolefree did not properly disclose the evidence she now relies on in opposing Swift's motion, and (B) whether that evidence is admissible.
Swift first argues Ms. Tolefree's declaration, which she submitted with her opposition, does not comply with 28 U.S.C. § 1746. That section requires unsworn declarations to be signed under penalty of perjury. See Reply at 2. Although Ms. Tolefree did not originally sign her declaration under penalty of perjury, she has since amended her declaration to comply with § 1746. ECF No. 28. This order refers to the amended declaration, mooting Swift's objection.
Swift next argues Ms. Tolefree has not complied with this District's local rules on the submission of evidence at summary judgment, and it urges the court to disregard her filing for this reason. See Reply at 9-10. The local rules require a party who moves for summary judgment to produce a "Statement of Undisputed Facts." E.D. Cal. L.R. 260(a). That statement must list the facts the party claims are undisputed and the evidence supporting those claims. See id. Swift filed a statement under that rule. See Defs.' Stmt., ECF No. 15-2. A party who opposes summary judgment must then file a responsive statement. E.D. Cal. L.R. 260(b). The responsive statement must "reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed." Id. The opposing party may also file its own statement of undisputed facts, but that additional submission must be "concise." Id. Ms. Tolefree complied with these rules. She submitted responses to each fact Swift proposed as undisputed, agreeing some were undisputed and contending others were disputed, citing evidence to support her claims. See Pl.'s Stmt. at 1-34, ECF No. 24-2. She also added several claims of undisputed facts and cited evidence to support those additional claims. See id. at 35-64. Although her list is not especially "concise," Swift is mistaken in claiming she violated the local rules. Disregarding her filing would be draconian and the court declines to enforce the local rules as Swift requests.
Finally, Swift asks the court to strike two declarations by witnesses Ms. Tolefree did not disclose before opposing summary judgment: Peter Rose, her former supervisor at another company, ECF No. 24-5; and Desiree Wood, a veteran truck driver and president of REAL Women in Trucking, Inc., an organization that offers support to and advocates on behalf of women in the trucking industry, ECF No. 24-6; see also Evid. Objs. at 6, 8, ECF No. 25-3. "Rule 26(a)(1)(A) requires a plaintiff to make certain initial disclosures to the defendant 'without awaiting a discovery request.'" R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1245 (9th Cir. 2012) (quotation marks omitted). Disclosures required by Rule 26 include "the name . . . of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment." Fed. R. Civ. P. 26(a)(1)(A)(i). A party must also disclose its testifying experts. See Fed. R. Civ. P. 26(a)(2)(A). These disclosures must be amended if they are "incomplete or incorrect" in some "material respect." Fed. R. Civ. P. 26(e)(1)(A). If a party does not comply with these rules, that party "is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). The court can also impose lesser sanctions. See Fed. R. Civ. P. 37(c)(1)(A)-(C); R&R Sails, 673 F.3d at 1247.
Here, according to Swift, Ms. Tolefree's initial disclosures did not mention Mr. Rose or Ms. Wood.1 Nor did she amend her disclosures before submitting their declarations in opposition to Swift's motion. See Evid. Objs. at 6, 8. But after Swift's motion was submitted, the parties agreed to extend discovery to allow for depositions of Mr. Rose and Ms. Wood, and they agreed Swift could have more time to engage an expert to rebut Ms. Wood's opinions. See Stip. & Order, ECF No. 32. The scheduling order was amended accordingly. See id. These extensions made the previous nondisclosure harmless, so no sanction is justified.
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Swift's remaining objections rely on the Federal Rules of Evidence. The judges in this district, including the undersigned, have often cautioned litigants against terse and reflexive evidentiary objections at summary judgment, especially when the objector is the moving party. See, e.g., Lindell v. Synthes USA, 155 F. Supp. 3d 1068, 1071 (E.D. Cal. 2016); U.S. E.E.O.C. v. Placer ARC, 114 F. Supp. 3d 1048, 1052-53 (E.D. Cal. 2015); Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F. Supp. 2d 1122, 1126 n.1 (E.D. Cal. 2008); Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). Defense counsel is encouraged to review these orders to avoid unnecessary and unpersuasive objections in the future.
Generally, the admissibility of evidence at summary judgment is governed by different rules and different motivations than at trial. At summary judgment, Rule 56 allows objections to evidence when "the material cited . . . cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). As this language suggests, at summary judgment, the propriety of evidence depends not on its form, but on its content. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001). The party asking the court to consider evidence bears the burden to prove that it could be presented in admissible form. See Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects, the proponent must direct the court to "authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible . . . ." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010). But if evidence falls short of the "formalities of Rule 56," a district court may nonetheless exercise its discretion "to be somewhat lenient." Sch. Dist. No. IJ, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1261 (9th Cir. 1993).
This standard makes some evidentiary objections a poor fit for summary judgment. That is true first and foremost of form objections and objections based on relevance, vagueness and speculation. To the extent these objections attack the content of evidence rather than its form, they duplicate Rule 56 itself. Courts disregard irrelevant, indecipherable or speculative evidence,see, e.g., Burch, 433 F. Supp. 2d at 1119, and Rule 56 does not permit litigants to oppose summary judgment on the basis of vague assertions or speculation, see Fed. R. Civ. P. 56(c)(1). Likewise, an objection that testimony is argumentative or mischaracterizes the record either calls for a credibility determination unsuited for summary judgment or would better be directed at the underlying evidence itself. See, e.g., Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1034 (C.D. Cal. 2013). Hearsay objections have also often been overruled at summary judgment. For example, on review of summary judgment, the Ninth Circuit has considered the hearsay contents of a diary whose substance would have been admissible in another form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). Foundation and authenticity problems are similarly nonfatal if "the substance could conceivably be made admissible at trial." Portnoy v. City of Davis, 663 F. Supp. 2d 949, 953 (E.D. Cal. 2009) (quotation marks omitted).
Many of Swift's evidentiary objections fall into these categories. It objects that the declarations submitted with Ms. Tolefree's opposition include irrelevant and vague claims, see Evid. Objs. at 4, 5, 7, lack foundation, see id. at 4, 7-8, and are hearsay, see id. at 4. Some of Swift's objections are wholly unsupported by argument or citations. See, e.g., id. at 4 (); id. (); id. at 7 ().
These objections are overruled. Because this order rests on only relevant and concrete evidence, Swift's objections to irrelevance, vagueness and speculation...
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