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Burnett v. The Harvard Drug Group, LLC

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

June 11, 2015



Plaintiff, Michael Burnett, filed this case on August 29, 2013, asserting claims for race-based disparate treatment, race-based hostile work environment, and race-based discriminatory termination pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) and 42 U.S.C. § 1981, against The Harvard Drug Group (“Harvard Drug”), his former employer.[1] The case presently is before the court on defendant’s motion for summary judgment[2] and defendant’s motion to strike portions of the declaration of Demetria White.[3] Upon consideration of the motions, pleadings, briefs, and evidentiary submissions, the court concludes that the motion to strike should be denied, and the motion for summary judgment should be granted.


Federal Rule of Civil Procedure 56 provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In other words, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).


Defendant asks the court to strike portions of the April 26, 2013 declaration of Demetria White. Defendant asserts that portions of the declaration are conclusory, speculative, and opinion-based, and that other portions of the declaration constitute inadmissible hearsay.[4]

As an initial matter, the motion is confusing, because Ms. White’s declaration actually was submitted as part of defendant’s evidentiary submission (the declaration was an exhibit to the deposition of John Evans).[5] It makes little sense for defendant to attempt to strike a portion of its own evidentiary submission. Moreover, the court is capable of discerning those portions of Ms. White’s testimony that are based upon personal knowledge, those which are impermissible legal conclusions or opinions, and those which constitute inadmissible hearsay. Any inadmissible testimony will not be relied upon in the court’s factual findings. Consequently, there is no need to strike the declaration or any portions thereof. Finally, this ruling will not prejudice defendant, because, even considering the challenged portions of Ms. White’s declaration, defendant still is entitled to the entry of summary judgment in its favor as a matter of law.


Defendant, The Harvard Drug Group, LLC (“Harvard Drug”), is a nation-wide distributor of pharmaceuticals.[6] During 2012, the company employed several temporary workers in its Decatur, Alabama distribution center that it hired through a staffing agency: Aerotek, Inc. (“Aerotek”).[7] Aerotek had previously placed plaintiff, Michael Burnett, as a temporary employee at Qualitest, another pharmaceutical company with local facilities, so when it received notice of the open position at Harvard Drug, Aerotek thought plaintiff would be a good candidate.[8]After Aerotek’s referral, plaintiff was interviewed by John Evans, Harvard Drug’s Production Manager, who hired him as a temporary employee on April 10, 2012.[9]

Harvard Drug requires all new employees to submit to a drug test and background check prior to commencing employment.[10] Aerotek conducted the background check on plaintiff and forwarded the results to Harvard Drug. No problems were revealed, and plaintiff was cleared for employment at Harvard Drug.[11]The background check conducted on plaintiff was deficient, however, and failed to reveal his criminal past.[12] Plaintiff acknowledged during his deposition that he had received prior misdemeanor convictions for writing bad checks and driving without a license. In addition, he had been charged with domestic violence on three separate occasions, but was never convicted. One of those charges occurred while he was employed at Harvard Drug.[13] Plaintiff’s driver’s license had been suspended prior to the date on which he began work for Harvard Drug, but he nonetheless continued to drive himself to work and from work whenever his car was working.[14]

The pertinent provision of Harvard Drug’s Employment Policy states that, due to the nature of the company’s business,

all candidates for employment must successfully past [sic] a pre-employment drug screen and a criminal background check. Those with any felony convictions of any kind will not be eligible for employment. Those with any misdemeanor convictions related to drugs or theft will not be eligible for employment. Additionally, the Company reserves the right to conduct random background check updates after the initial date of hire and if the associate is convicted of a crime of this nature after employment, employment may be terminated based upon the information related to the conviction.[15]

Harvard Drug’s activities also are subject to regulation by the United States Drug Enforcement Administration (“DEA”).[16] Stephen Bencetic, Harvard Drug’s Chief Administrative Officer, attested that to his belief that,

[b]ecause [Harvard Drug] is a DEA-regulated facility, there are strict guidelines on who could work there. You cannot remain employed with [Harvard Drug] with a warrant out for your arrest. Specifically, Title 21 C.F.R. § 1301.90 governs the qualifications of an employee in a DEA-regulated facility and focuses on an employee’s criminal and drug-related activity. Per ...

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