United States District Court, N.D. Alabama, Southern Division
LARRY J. DAVIS, Plaintiff,
HOUSING AUTHORITY OF THE BIRMINGHAM DISTRICT, Defendant.
KARON OWEN BOWDRE, Chief District Judge.
This matter comes before the court on Defendant Housing Authority of the Birmingham District's ("HABD") "Motion for Summary Judgment, " (Doc. 16), and HABD's "Motion to Strike, " (Doc. 27).
This case is a straight forward age discrimination case. Plaintiff Larry J. Davis claims HABD discriminated against Davis because of his age when they failed to promote Davis to the permanent position of Director of Leased Housing/Section 8. However, HABD, through its decision-maker Naomi Truman, chose a different candidate, Sterling Bethea, because Bethea had superior credentials and because Davis caused major problems while serving as the interim Director of Leased Housing/Section 8. For the reasons stated below, HABD wins.
Before addressing HABD's summary judgment motion, however, the court must rule on HABD's motion to strike to determine the record before it for summary judgment.
I. Motion to Strike
HABD asks the court to strike (1) an Atlanta Unfiltered newspaper article attached as Exhibit C to Davis's response to HABD's summary judgment motion; and (2) Davis's response to some of HABD's summary judgment facts.
Whether to grant a motion to strike is an evidentiary ruling within the discretion of the district court. See United States v. Stout, 667 F.2d 1347, 1353 (11th Cir. 1982) ("A trial court's ruling as to the materiality, relevancy or competency of testimony or exhibits will ordinarily not warrant reversal unless constituting an abuse of discretion, fraught with reasonable likelihood of prejudice to defendant." (internal citations omitted)). The court declines to strike any of Davis's evidence.
A. The Atlanta Unfiltered Newspaper Article
In his response to HABD's motion for summary judgment, Davis cites an Atlanta Unfiltered newspaper article to establish the circumstances surrounding Bethea's resignation from the Dekalb County Housing Authority in Atlanta, Georgia. Davis alleges that the article shows that Bethea resigned during an "ongoing" federal investigation into the misuse of funds. (Doc. 24, 17). In contrast, Bethea said in his deposition that he resigned "after the investigation." (Doc. 25-2, 10).
HABD argues that the article is not admissible because the article is hearsay, is not authenticated, lacks foundation, and is irrelevant.
The article is hearsay, but is admissible as impeachment evidence. Generally, inadmissible hearsay cannot be considered on a motion for summary judgment. See Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999). However, "a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial." Id. at 1323 (internal quotations omitted and emphasis added). "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.
Davis's response to HABD's motion for summary judgment only cites the article once, in footnote six, to impeach Bethea's deposition testimony. Although Davis suggests in his response to HABD's motion to strike that the article is relevant for other reasons, including to show Bethea's qualifications, (Doc. 28, ¶ 5), and need for Truman to inquire more deeply into Bethea's candidacy, (Doc. ¶ 6), Davis does not present these arguments in his response to the summary judgment motion.
Thus, the court will not strike the article because Davis uses the article solely for impeachment purposes. However, the court notes that questions of credibility are not within the court's province.
2. Authentication and Foundation
The article is not yet authenticated, but authentication is not required at the summary judgment stage. The article is from an online news outlet and is analogous to a traditional newspaper article. Thus, the article could be found self-authenticating at trial pursuant to Federal Rule of Evidence 902(6). Further, news articles may be considered on summary judgment even if the news articles could not be reduced to admissible form at trial. See Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1530 (11th Cir. 1993) (finding news articles may be considered on summary judgment even if inadmissible at trial).
HABD's objection to the article because it lacks "foundation" is puzzling. Authentication is the method used to lay a foundation to admit documentary evidence. Fed.R.Evid. 901. As discussed above, the article may be considered at summary judgment because it may be self-authenticating at trial. Further, to the extent HABD argues that the article should be stricken as "conclusory, speculative, and/or opinion evidence, " those critiques go to the weight of the evidence rather than admissibility and are not sufficient justifications to strike the article.
Thus, the court will not strike the article because it is not authenticated or lacks foundation.
Finally, the article is clearly relevant to Bethea's credibility. The article has a tendency to make the facts in Bethea's testimony more or less probable than they would be without the article. Thus, the article is relevant.
B. Davis's Response to HABD's Relevant Undisputed Facts
HABD also asks the court to strike Davis's response to certain facts in HABD's motion for summary judgment. First, HABD argues that Davis failed to provide specific evidentiary citations to paragraphs 19.b, 19.c, and 20.b. However, Davis's responses refer either to earlier evidentiary citations or to his complaint. The court find that Davis substantially complied with the court's requirement for specific evidentiary citations.
Second, HABD argues that Davis's responses to paragraphs 12, 15.b., 18.c, and 19 are irrelevant argument. The court finds that these responses contain factual averments. Further, the court need not strike any argument in Davis's responses to determine the merits of the summary judgment motion.
In summary, the court DENIES HABD's motion to strike (1) the Atlanta Unfiltered newspaper article attached as exhibit C to Davis's response to HABD's summary judgment motion; and (2) Davis's ...