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Agee v. Mercedes-Benz U.S. International, Inc.

United States District Court, N.D. Alabama, Western Division

March 26, 2015

KIMBERLY AGEE, Plaintiff,
v.
MERCEDES-BENZ U.S. INTERNATIONAL, INC., Defendant.

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, District Judge.

This case is presently pending before the court on Defendant's Motion for Summary Judgment, (doc. 18), [1] Defendant's Motion to Strike Portions of Plaintiff's Brief in Opposition to Motion for Summary Judgment, (doc. 25), and Plaintiff's Motion for Withdrawal or Amendment of Admission Pursuant to Rule 36(b), (doc. 28). Plaintiff, Kimberly Agee ("Plaintiff"), has sued her former employer, Defendant Mercedes-Benz U.S. International, Inc., ("MBUSI" or "Defendant") alleging that MBUSI discriminated against her because of her pregnancy and her disability and retaliated against her in violation of Title VII. Upon consideration of the record, the submission of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that Defendant's Motion to Strike, (doc. 25), is due to be granted in part and denied in part as moot, Defendant's Motion for Summary Judgment, (doc. 18), is due to be granted, and Plaintiff's Motion for Withdrawal, (doc. 28), is terminated as moot.[2]

STATEMENT OF THE CASE

In Count I of her Complaint, Plaintiff alleges she was discharged by MBUSI because of her pregnancy. In Count II of her Complaint, Plaintiff alleges she had a disability that was not accommodated and her employment with MBUSI was terminated as a result. In Count III of her Complaint, Plaintiff alleges MBUSI retaliated against her in violation of Title VII. The parties were provided a discovery period and after discovery was completed MBUSI filed its Motion for Summary Judgment. (Doc. 18). Defendant also filed a Motion to Strike, (doc. 25), and Plaintiff filed her Motion for Withdrawal. (Doc. 28).

MOTION TO STRIKE

There are two parts to MBUSI's Motion to Strike. (Doc. 25). First, MBUSI seeks to strike certain "evidence" and any arguments based thereon referenced in Plaintiff's Brief in Opposition to MBUSI's Summary Judgment Motion. (Doc. 23). This "evidence" includes the following "additional undisputed facts" proposed by Plaintiff in her Brief in Opposition to MBUSI's Motion for Summary Judgment:

165. The only other female on the line, Diana Walker, hurt her back and was accommodated to light lifting by working the 60 and 70 stations where there was no overtime until the line was shut down in July. (Plt. Dep. p. 197, 201).
...
168. Jeremy Brown, who also worked on the same line, when he was injured, was accommodated by being sent to the warehouse where there was no overtime. (Plt. Dep. p. 197).
169. Sandy Pate has a work hour restriction and she was accommodated. (Plt. Dep. p. 215, 249).
170. Fernandez who had rotator cuff surgery, was placed in the warehouse for two months. (Plt. Dep., p. 199)....
171. Rachel Rutherford was accommodated being sent to the warehouse. (Plt. Dep. p. 204).
172. Other team members had been to the warehouse for a year. (Plt. Dep. p. 198).
173. There were jobs in the plant that did not require more than 40 hours. (Plt. Dep. p. 243).

(Doc. 23 at 22-23).

Second, MBUSI asserts that Plaintiff cannot deny MBUSI's Second Request for Admission #1 because she did not respond to that request and it must therefore, be deemed admitted. MBUSI then argues that Plaintiff cannot present any facts or argument inconsistent with the deemed admission. MBUSI's Second Request for Admission #1 addresses whether Plaintiff refused to submit to MBUSI a HIPAA authorization form from May 1, 2012 to July 9, 2013. (Doc. 25-1 at 2-5). This fact is immaterial to the court's Opinion herein. However, the court has granted previously plaintiff's Motion to Amend as requested by plaintiff's counsel.

The court now addresses the first part of MBUSI's Motion to Strike, (doc. 25). MBUSI asserts that a review of the relevant deposition testimony cited by Plaintiff to support her proposed undisputed facts noted above, shows that Plaintiff lacked personal knowledge of this "evidence" and that this "evidence" constituted inadmissible hearsay.

"A district court has broad discretion in determining the admissibility of evidence' on a motion for summary judgment." Rhodes v. Tuscaloosa Cnty. Bd. Of Educ., 935 F.Supp.2d 1226, 1232 (N.D. Ala. 2013) (quoting Hetherington v. Wal-Mart, Inc., 511 F.Appx. 909, 911 (11th Cir. 2013)). "In determining whether evidence is otherwise admissible, the court applies the same rules and standards as it would at trial." Rhodes, 935 F.Supp.2d at 1232. Indeed, in order to be admissible for purposes of summary judgment, deposition testimony, as well as affidavits or declarations, must be based upon personal knowledge. See Jernigan v. Dollar Gen. Corp., No. 2:11-cv-01448-WMA, 2013 WL 452820, at *8 (N.D. Ala. Jan. 31, 2013) (citing FED. R. CIV. P. 56(c)(4)). If a person's "testimony does not meet this standard... the court will not consider it." Jernigan, 2013 WL 452820, at *8. "Even on summary judgment, a court is not obligated to take as true testimony that is not based upon personal knowledge." Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007) (citation omitted); see also Jernigan, 2013 WL 452820, at *8. "[M]ere conclusions and unsupported factual allegations, as well as affidavits, in part, upon information and belief, rather than personal knowledge, are insufficient to withstand a motion for summary judgment.'" Rhodes, 935 F.Supp.2d at 1237 (quoting Ellis v. England, 432 F.3d 1321, 1327 (11th Cir. 2005) (citing Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 2002)). Furthermore, "word-of-mouth" statements by other employees are unsworn statements, and "[t]he court does not consider unsworn statements." Rhodes, 935 F.Supp.2d at 1233 (citing Dudley v. City of Monroeville, Ala., 446 F.Appx. 204, 207 (11th Cir. 2011)).

Hearsay is an out-of-court statement made by someone other than the declarant, offered in evidence to prove the truth of the matter asserted. FED. R. EVID. 801(C). Hearsay evidence is presumptively inadmissible at trial. See FED. R. EVID.803. And "[t]he general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment.'" Rhodes, 935 F.Supp.2d at 1232 (quoting Macuba v. Deboer, 193 F.3d 1316, 1322-25 (11th Cir. 1999)).

MBUSI has moved to strike "certain evidence' which [Agee] contends establishes various employees are comparators, [that these employees] were treated differently than [Agee] was, and [that these employees] were provided accommodations [MBUSI did] not offer[ ] to her." (Doc. 25 at 1-2.) It moves to strike the following:

165. The only other female on the line, Diana Walker, hurt her back and was accommodated to light lifting by working the 60 and 70 stations where there was no overtime until the line was shut down in July. (Plt. Dep. p. 197, 201).
...
168. Jeremy Brown, who also worked on the same line, when he was injured, was accommodated by being sent to the warehouse where there ...

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