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Smith v. Vestavia Hills Board of Education

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

March 21, 2018

ANITA SMITH, Plaintiff,
v.
VESTAVIA HILLS BOARD OF EDUCATION, Defendant.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Anita Smith (“Plaintiff” and/or “Smith”) has sued her former employer, the Vestavia Hills Board of Education (“Defendant, ” “VHBE, ” and/or the “Board”) for race discrimination in violation of: Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17 (“Title VII”); 42 U.S.C. §§ 1981 and 1981(a) (“Section 1981”); and 42 U.S.C. § 1983 (“Section 1983). (Doc. 21, Count One). She also claims she was discriminated against based on her age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (the “ADEA”). (Count Two). Finally, she claims that Defendant retaliated against her, in violation of Title VII, Section 1981, and the ADEA, after she opposed the Defendant's alleged discrimination against her. (Count Three).

         This case is now before the Court on: Defendant's Motion for Summary Judgment (doc. 34); Plaintiff's Motion To Strike Undisclosed Witnesses (doc. 53); Plaintiff's Motion To Strike Declarations (doc. 54); Plaintiff's Motion To Strike Court Document 55, Defendant's Response in Opposition to Plaintiff's Objection and Motion To Strike (doc. 56); Defendant's Motion To Strike Plaintiff's Exhibit 2 Attached to Her Response in Opposition to Defendant's Motion for Summary Judgment[1] (doc. 60); Defendant's Motion To Strike Plaintiff's Exhibits 5, 9, 10 and 21 (doc. 62); Defendant's Motion To Strike Plaintiff's Exhibit 16 (doc. 63); Defendant's Motion To Strike Plaintiff's Citations to Articles (doc. 64); and Defendant's Motion To Strike Portions of Plaintiff's Response Brief (doc. 65). The motions are fully briefed and are under submission. (See docs. 55, 57, 58, 59, 66, 68, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, and 82). After careful review, and for the reasons explained below, Defendant's Motion for Summary Judgment is due to be GRANTED. Plaintiff's and Defendant's motions to strike are due to be GRANTED and/or DENIED as set out herein.

         II. CHALLENGES TO THE RULE 56 FILINGS

         Before the Court reaches the merits of Defendant's Motion for Summary Judgment, it must determine what evidence and/or portions of briefs are due to be excluded. In order to make that determination, the Court must first decide which pleadings will be considered. Thus, the Court turns first to Plaintiff's Motion To Strike Court Document 55, Defendant's Response in Opposition to Plaintiff's Objection and Motion To Strike. (Doc. 56).

         This motion (doc. 56) seeks to strike Defendant's response in opposition to one of Plaintiff's motions to strike. The basis for the motion is that it was untimely under the Court's briefing schedule. And it was. Nevertheless, the Court declines to exclude Defendant's response. Plaintiff has addressed the merits of Defendant's response by filing a reply. (Doc. 66). Accordingly, the Court cannot discern any prejudice suffered by Plaintiff as a result of Defendant's untimely response brief.

         Having decided what pleadings to allow, the Court now turns to the parties' multiple filings on alleged briefing violations and evidentiary issues.[2] Plaintiff and Defendant both challenge significant portions of the record presented by the opposing party. Plaintiff seeks to exclude the declarations[3] of Dr. Mark Richardson, Dr. Tyler Burgess, Grace Hicks, and Dawn Skewes because these individuals were not disclosed until after discovery had closed. (Doc. 53).[4] Plaintiff also seeks to exclude, as “sham declarations, ” the declarations of Tim Loveless and Sheila Phillips, and to exclude the declaration of Grace Hicks for Defendant's failure to timely disclose her. (Doc. 54). Plaintiff also seeks to exclude certain portions of the declarations of Tim Loveless and of Grace Hicks as hearsay, unsupported ultimate conclusions, and/or irrelevant. (Doc. 54). Defendant asks the Court to strike various exhibits submitted by Plaintiff in opposition to the Motion for Summary Judgment. (Docs. 60, 61, 63, and 64). Defendant asserts that: Plaintiff's Exhibit 2 is irrelevant (doc. 60); portions of Plaintiff's Exhibits 5, 7, 9, 10 and 21 are improper summaries (doc. 61); four documents within Plaintiff's Exhibit 16 have not been authenticated (doc. 63); and Plaintiff's citations to unauthenticated law review articles and websites should be struck (doc. 64). Defendant also objects to the portions of Plaintiff's brief in opposition to summary judgment that refer to these unauthenticated law review articles and websites, and objects to facts that are improperly contained without citation to the evidentiary record in Plaintiff's response to Defendant's statement of undisputed facts. (Doc. 65).[5] Finally, Defendant asks the Court (doc. 65) to strike those portions of Plaintiff's brief opposing summary judgment (doc. 68) that fail to comply with Appendix II to this Court's Uniform Initial Order (doc. 10).

         A. Plaintiff's Rule 26 Challenges

         Plaintiff's Rule 26 challenges are set out both in documents 53 and 54.[6]Specifically, she asks this Court to exclude the declarations of Dr. Mark Richardson, Dr. Tyler Burgess, Grace Hicks, and Dawn Skewes. She states that, in violation of Fed.R.Civ.P. 26, none of these individuals were identified by Defendant prior to the close of discovery. Accordingly, she says, their declarations must be struck. Fed.R.Civ.P. 37(b)(2)(A) and (c)(1).

         Defendant responds that these individuals were timely disclosed and/or otherwise known to Plaintiff. (Doc. 55). Defendant states: (1) Grace Hicks and Dawn Skewes were listed in plaintiff's Third Amended Initial Disclosures;[7] (2) Defendant's Initial Disclosures provided the following: “Defendant also identifies any other individual listed in plaintiff's Rule 26 disclosures, any party's deposition, plaintiff's witness list and plaintiff's responses to discovery requests;” and (3) additionally, all of these individuals' identities and positions with Defendant were disclosed to Plaintiff numerous times throughout discovery in this case, both during depositions and in documents produced in response to Plaintiff's multiple Request for Production of Documents. Defendant then listed, as to each individually challenged declarant, multiple examples of such disclosures.

         In reply (doc. 66), Plaintiff disagrees with Defendant's interpretation of Rule 26, says that this Court's Order (as “always understood” by Plaintiff's counsel) is broader than Rule 26, and posits several questions. However, Plaintiff intentionally omits language that makes clear that her counsel's “understanding” is not supportable. Specifically, Plaintiff quotes (only) the following language as the basis for this “understanding”:

Here, the Court's Scheduling Order provides that “no person may testify whose identity, being subject to disclosure or timely requested in discovery, was not disclosed in time to be deposed or to permit the substance of his knowledge and opinions to be ascertained.”

(Doc. 66 at 4)(emphasis in original). By omitting the context, and indeed, by omitting the first portion of the sentence she does set out, the Court can only conclude that Plaintiff seeks to mislead.[8] That effort fails, as does Plaintiff's argument that this Court has imposed through its Scheduling Order disclosure obligations broader than those set out in Rule 26.

         Turning now to Rule 26, the Court notes that a party generally is required to disclose the names of individuals likely to have discoverable information that will be used to support a claim or defense. Fed.R.Civ.P. 26(a)(1)(A). This initial disclosure must be supplemented in a timely manner if the initial disclosure was materially incomplete “and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process.” Id. 26(e)(1)(A)(emphasis supplied). Rule 37 prohibits a party from using a witness's testimony to support a motion if it has failed to identify that witness in accordance with Rule 26, unless the failure to disclose was substantially justified or harmless. Fed.R.Civ.P. 37(c)(1)(emphasis supplied).

         The Court has reviewed Defendant's detailed and extensive list of its disclosures of these declarants, and finds that said disclosures not only informed Plaintiff of the names of the declarants, but did so in such a way that the facts to which they could likely testify was clear. For that reason, the Court finds that, as to each such declarant, Plaintiff's request to exclude the declarations based on Rule 26 is due to be denied.

         B. Challenges to Declarations

         Plaintiff's asks the Court (doc. 54) to strike the declarations of Tim Loveless and of Sheila Phillips on the basis that they are “sham” declarations.[9] She also seeks to exclude portions of the Loveless declaration, and portions of the declaration of Grace Hicks, as hearsay, unsupported ultimate conclusions, and/or irrelevant.[10]

         “A court may determine that an affidavit is a sham when it contradicts previous deposition testimony and the party submitting the affidavit does not give any valid explanation for the contradiction.” Latimer v. Roaring Toyz, 601 F.3d 1224, 1237 (11th Cir. 2010). “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). The Court must apply the sham affidavit doctrine sparingly, though, “because of the harsh effect it may have on a party's case.” Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1316 (11th Cir. 2007) (quoting Rollins v. TechSouth, 833 F.2d 1525, 1530 (11th Cir. 1987)). For example, the Court should not use the sham affidavit doctrine to disregard a declarant's testimony where the declarant expressed a lack of certainty or recall during his or her deposition. See id. at 1316-17 (holding that plaintiffs' written averments about uncompensated work time should not be disregarded as shams where the plaintiffs expressed a lack of certainty during depositions). Further, not every item that could serve as the basis to impeach a party-witness with earlier deposition testimony will lead to that party-witness's testimony being struck. A slight contradiction or an arguable contradiction is not enough. If portions of an affidavit are inadmissible, the Court will disregard the inadmissible testimony and consider the admissible testimony from that affidavit in analyzing the summary judgment motion. Lee v. Nat'l Life Assur. Co. of Canada, 632 F.2d 524, 529 (5th Cir. 1980).

         The Court has reviewed the deposition testimony that Plaintiff says is contradicted by Loveless's declaration and finds that none of the instances cited actually is a “clear contradiction, ” either because the prior testimony was of a failure to recall, or because Plaintiff otherwise has not explained how the deposition testimony's materially varied from his declaration. The Court will deny the motion to strike the challenged portions of his declaration as “sham.”

         The Court reaches the same conclusions after reviewing the cited-by-Plaintiff deposition testimony of Phillips in comparison to the cited-by-Plaintiff declaration testimony of Phillips. The Court will deny the motion to strike her declaration.

         Plaintiff has also objected to portions of the declarations of Loveless and to portions of the declaration of Grace Hicks as hearsay, unsupported ultimate conclusions, and/or irrelevant. Specifically, as to the Loveless Declaration, Plaintiff states that it contains

9 hearsay statement of the following individuals: (1) Board employees (Doc. 35-27, p. 4, ¶ 3); (2) Pat Strange (Doc. 35-27, p. 4, ¶ 3); (3) Mr. Butler (Doc. 35-27, p. 4, ¶ 4); (4) Phillips (Doc. 35-27, p. 5, ¶ 2); (5) the Board (Doc. 35-27, p. 6, ¶ 1); (6) Ms. Hanson (Doc. 35-27, p.6, ¶ 1); and (7) other VHHS employees(Doc. 35-27, p.7, ¶2).

(Doc. 54 at 12-13).

         The Court has reviewed all of these pages and has found only three occasions when Loveless repeats something he was told (a necessary precondition for a hearsay challenge of this type). The first occasion is when he says: “I received multiple complaints from several Board employees, including Pat Strange, concerning Smith's habitual tardiness or other employees having to cover Ms. Smith's desk in the mornings in her absence. Strange complained on several occasions that she was unable to timely start her duties for the day because she had to cover Smith's desk by assisting someone who called or stopped by the front office before Ms. Smith arrived.” (Doc. 35-27 at 4). These statements are not being offered for the truth of the matter asserted (by others who spoke to Loveless). They are not hearsay and will not be excluded.

         The second occasion is when he says: “ Ms. Smith acknowledged that this was an area which needed improvement during our meeting to go over the evaluation.” (Id. at 5). This statement is a party admission and, by rule, is not hearsay. Fed.R.Evid. 801(2)(A). It will not be excluded.

         The third occasion is when he says: “On the one occasion Ms. Smith said ‘They always treat me this way, ' she did not say that she felt that any alleged mistreatment was motivated by discrimination based on her race or age.” (Id. at 7). Again, this is a statement by Plaintiff. Additionally, it is not offered for the truth of the matter asserted, and accordingly is not hearsay. It will not be excluded.

         Plaintiff also complains that “Loveless testifies about what observations Kevin Butler, Assistant Principal, could or could not make when Kevin Butler was walking the school building or property.” (Doc. 54 at 13) (citing doc. 35-27 at 4, ¶4). Based on Loveless's familiarity with the school building and property, this objection is without merit. At most, it goes to weight, and not admissibility. Plaintiff also states: “Loveless also provides vague testimony about ‘if a person were in the lobby, his or her view of Ms. Smith's desk would have been obstructed by the wall and the door which separate the lobby from the front office. Further, an individual standing in the lobby by the front doors cannot see someone in the mail room.' ” (Doc. 54 at 13) (citing doc. 35-27 at 5, ¶1). Again, this objection is without merit. Plaintiff also complains that “Paragraph 2 of page 5 of [the Loveless] declaration contains numerical percentages that are not supported by any data, nor does Loveless describe how he reached this number. He states[:] ‘Over the course of her two year employment with the Board, Ms. Smith's time records establish that she was late 87% of the days.' There is no foundation for these numbers to determine whether there is supporting evidence or whether Loveless made the numbers up. These statements are admittedly based upon Loveless' belief and speculation and due to be struck.” (Doc. 54 at 13-14). The Court finds nothing speculative about these statements. They will not be excluded.

         Plaintiff asserts that the following statements by Loveless constitute “ultimate legal conclusions under the guise of facts”. (Doc. 54 at 13) “When discussing Plaintiff's conversations with [him], he asserts ‘she did not say that she felt that any alleged mistreatment was motivated by discrimination based on her race and age.' ” (Id.). This objection is without merit. At most, the statement is Loveless's opinion about the content of statements to him by Plaintiff. The opinion of a lay witness is permitted, even on the ultimate issue of a case, if the testimony is based on personal observations. Carter v. DecisionOne Corp. Through C.T. Corp. Sys., 122 F.3d 997, 1005 (11th Cir. 1997). The statement will not be excluded.

         Plaintiff also seeks to have the Court strike portions of the declaration of Grace Hicks as “hearsay and statements that lack personal knowledge or irrelevant information by Hicks.” (Doc. 54 at 17.). More specifically, Plaintiff says: “Hicks states she ‘understood' her job duties were in relation to Connie Thomas and Anita Smith.” (Id.). This is not hearsay. Hicks has the requisite familiarity regarding how to perform her job duties, including knowing what they were in relation to those of co-employees. The statement will not be excluded.

         Plaintiff further states that “Hick's [sic] declaration contains hearsay. She testifies to three different lines in her declaration regarding what Pat Strange told her or did not tell her and that she never felt (as a white person) that Strange mistreated her. (Id.). The three “lines” of Hicks's declaration that mention Strange are “I was never told by Pat Strange not to cover Ms. Smith's desk for her while she went to lunch or at any other time. I have never heard Ms. Strange make any comments I felt were racist.” (Doc. 35-28 at 2). This is not hearsay. Plaintiff overreaches when she says this testimony is regarding “what Pat Strange told her.” It is only regarding what Pat Strange did not tell her (and Hicks's feelings). The statements will not be excluded.

         Plaintiff next complains that “Hicks also provides testimony about her time sheets and provides a different starting time than that discussed by her supervisor.” (Doc. 54 at 17) (citing doc. 35-28 at 3, ¶1). Plaintiff seems to argue that a Court should exclude any testimony by one witness that is different that the testimony of another witness. This argument is without merit or logic. The statements will not be excluded.

         Plaintiff argues that “Hicks also provides the opinion and ‘understanding' that she is one year older than Smith. . . . This testimony is not based on personal knowledge and is due to be struck.” (Doc. 54 at 17) (citing doc. 35-28 at 3, ¶1). The Court agrees. Testimony based solely on a witness's understanding is comparable to belief testimony and inadmissible under Rule 56. E.g., Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir. 1978) (explaining that a witness's testimony based on understanding was insufficient to show that the witness could present competent testimony at trial); Rolison v. Sterling, No. 08-0389-CG-M, 2009 WL 2514294, at *5-6 (S.D. Ala. Aug. 13, 2009) (Granade, J.) (striking an averment that began with a qualifying phrase based on the affiant's understanding). This statement will be excluded.

         Plaintiff also complains that “Hick's [sic] also reviews and provides testimony on time sheets that she has provided that have not been certified by [Defendant] as business records. This testimony is due to be struck as speculation and conjecture.” (Doc. 54 at 17). The Court disagrees. The statements will not be excluded.

         C. Admissibility of Plaintiff's Exhibit 2

         Defendant has moved (doc. 60) to strike Plaintiff's Exhibit 2 to her opposition to the Motion for Summary Judgment. The exhibit is the “Wage and Hour Handbook” for the Vestavia Hills City School System. (Doc. 44-2). Defendant says that Exhibit 2 is irrelevant because it states, on its face, that it was not effective until August 10, 2015 (see doc. 44-2 at 1), which is after the date the adverse employment action - the nonrenewal of Plaintiff's contract - occurred. Plaintiff says, in effect, without citation to any authority, that Defendant's counsel tricked her and therefore Defendant is “estopped” from seeking to strike this exhibit. (Doc. 72 at 7). Defendant does not deny its failure to produce a time-appropriate version of Plaintiff's Exhibit 2. Defendant responds that Plaintiff requested (after August 10, 2015) “manuals and policies which were currently in effect.” (Doc. 77 at 2, ¶5)(emphasis supplied). However, this is not accurate. In the request for production at issue (Request No. 6), Plaintiff requested

“Produce any and all employee handbooks, personnel policies and procedures, manuals, directives, memoranda or other VBOE documents regarding hiring promotion, progressive discipline, attendance, tardiness, discrimination, harassment, retaliation, non-renewal of contract, resignation, termination, salary, benefits and EEO policies, and any and all documentation of employee training on these policies and procedures from January 1, 2011 to the present.”

(Doc. 53-4 at 7)(emphasis supplied).

         Nonetheless, Defendant is correct that Plaintiff's Exhibit 2 is irrelevant. It will be excluded. However, in ruling on the Motion for Summary Judgment, to the extent that Defendant relies on its “wage and hour policies, ” the Court will consider Defendant's failure to produce a responsive time-appropriate version of Exhibit 2.[11]

         D. Admissibility of Challenged Portions of Plaintiff's Exhibits 5, 7, 9, 10, and 21

         Portions of Plaintiff's Exhibits 5, 7, 9, 10, and 21 to her opposition to the Motion for Summary Judgment are “summaries.” Defendant moves to exclude these summaries as not proper under Fed.R.Evid. 1006. Specifically, Defendant argues that the records summarized are not voluminous, Plaintiff has failed to identify who prepared them, and they contain inaccurate assumptions. Defendant also seeks to exclude certain employee time records as not authenticated. (Doc. 61).

         Plaintiff responds that the employee time records were produced by Defendant. (Doc. 73). Defendant quibbles with this response, but ultimately does not deny that they are Defendant's records. (Doc. 79).

         As Plaintiff has shown that she will be able to authenticate the employee time records at trial, Defendant's request that the Court exclude them at summary judgment is without merit. The employee time records will not be excluded.

         As to the summaries, Plaintiff states that they were prepared by a paralegal employed by her attorney and under that attorney's supervision and direction and therefore they can be authenticated at trial. The Court agrees and rejects Defendant's motion to the extent it is based on lack of authentication.

         Federal Rule of Evidence 1006 provides that a party “may use a summary, chart, or calculation to prove the content of voluminous writings, records, or photographs that cannot be conveniently examined in court.” Once admitted, a Rule 1006 summary is considered substantive evidence. Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1159 (11th Cir. 2004). Rule 1006 summary evidence can be submitted at the summary judgment stage. See Mitchell v. Univ. of La. Sys., 154 F.Supp.3d 364, 380 n. 8 (M.D. La. 2015) (deGravelles, J.) (citing F.T.C. v. Hughes, 710 F.Supp. 1520, 1524 (N.D. Tex. 1989) (Fish, J.)). For a summary to be admitted in court as substantive evidence, the proponent must provide a proper foundation for its admission, which should include the testimony of the witness who prepared it or supervised its preparation. Colon-Fontanez v. Municipality of San Juan, 660 F.3d 17, 31 (1st Cir. 2011). And, a summary admitted under Rule 1006 must be based on materials or documents that are themselves admissible under the Federal Rules of Evidence. Peat, Inc., 378 F.3d at 1160.

         As explained above, Plaintiff has now identified who prepared these summaries and who supervised their preparation. Further, the Court finds that the underlying documents are, indeed, voluminous. For example, Plaintiff's Exhibit 5 summarizes information from 337 time sheets. The first twelve pages of Plaintiff's Exhibit 7 summarizes information from 262 time sheets. The other challenged exhibits similarly summarize voluminous information. Accordingly, the exhibits meet this criteria of Rule 1006.

         To the extent that Defendant objects that the summaries contain “assumptions, ” Plaintiff is correct when she says that assumptions are permissible. “[T]he essential requirement is not that the charts be free from reliance on any assumptions, but rather that these assumptions be supported by evidence in the record.” United States v. Norton, 867 F.2d 1354, 1363 (11th Cir. 1989)(internal citations omitted). Plaintiff has shown (doc. 73) evidentiary support for the assumptions. While there is evidence that differs from that evidentiary support, assumptions need not be supported by undisputed evidence in order to be admissible. The summaries will not be excluded.

         E. Admissibility of Plaintiff's Exhibit 16

         Defendant asks the Court (doc. 63) to exclude four documents contained within Plaintiff's Exhibit 16 to her opposition to Defendant's Motion for Summary Judgment. The basis for exclusion is that the documents are not authenticated. (Id.). Plaintiff says that they came from Defendant and thus can be authenticated at trial. (Doc. 74). Defendant agrees that it produced the documents, but says they do not mean what Plaintiff says they mean. (Doc. 80). This is classic argument at summary judgment, not a reason to exclude the documents from the record. The documents will not be excluded.

         F. Admissibility of Plaintiff's Citations to Law Review Articles and Websites

         Defendant asks the Court to exclude Plaintiff's citations to law review articles and websites as unauthenticated. (Doc. 64). Plaintiff fails to join issue, and responds only that these articles and websites show that Plaintiff's opinion that what happened to her was based on racial stereotypes is reasonable. (Doc. 75). Defendant replies that the “[P]laintiff has abandoned her hostile work environment claim” (Doc. 81 at 2, ¶3) and thus the “reasonableness” of her opinions is no longer an issue in this case. Defendant further replies that Plaintiff's “use of information from an online ‘transmedia storytelling site' and [W]ikipedia is akin to the use of newspaper articles and other informal literature.” (Doc. 81 at 2, ¶4). The Court agrees. Plaintiff failed to respond to Defendant's motion insofar as it sought summary judgment as to her hostile work environment claim, and has therefore abandoned that claim. See, e.g., Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.”)

         Additionally, the Court agrees that facts set out in law review articles and informal websites (as opposed to official government websites) are similar to facts set out in newspapers. As such, they are inadmissible hearsay and not subject, without more, to any exception, including judicial notice. See Cofield v. Alabama Pub. Serv. Comm'n, 936 F.2d 512, 517 (11th Cir. 1991)(“That a statement of fact appears in a daily newspaper does not of itself establish that the stated fact is ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.' Fed.R.Evid. 201(b)(2).”). Consistent with Cofield and the authority cited by Defendant, these documents will be excluded.[12]

         G. Defendant's Motion To Strike Portions of Plaintiff's Response Brief

         Defendant has moved to strike (doc. 65) potions of Plaintiff's brief (doc. 43) in response to Defendant's Motion for Summary Judgment (doc. 34). To the extent that the motion seeks to exclude portions that reference law review articles and websites, consistent with the Court's ruling excluding law review articles and excerpts from websites as evidence, the Court will not consider Plaintiff's references to those items. To that extent, Defendant's motion will be granted.

         The motion also seeks to have the Court exclude portions of Plaintiff's brief. The basis for this aspect of Defendant's motion is that Plaintiff's insertion of facts into the portion of her brief in which she disputes Defendant's statement of material facts is contrary to this Court's Uniform Scheduling Order Appendix II. That Order (doc. 10), at Appendix II, sets out the Court's requirements regarding motions for summary judgment and oppositions thereto. Regarding the “manner of stating facts” in briefs in support and opposition to such motions, that Order states as follows:

D. Manner of Stating Facts
All briefs submitted either in support of or opposition to a motion must begin with a statement of allegedly undisputed relevant material facts set out in separately numbered paragraphs. Counsel must state facts in clear, unambiguous, simple, declarative sentences. All statements of fact must be supported by specific reference to evidentiary submissions.
1. Moving Party's Initial Statement of Facts
The moving party shall list in separately numbered paragraphs each material fact the movant contends is true and not in genuine dispute, and upon which the moving party relies to demonstrate that it is entitled to summary judgment. Each such statement must be followed by a specific reference to those portions of the evidentiary record that the movant claims supports it. FN 3.
FN. 3 Each statement of fact should be supported by its own evidentiary citation, regardless of the fact that more than one statement of fact allegedly is supported by the same specific reference to the evidentiary record or more than one statement of fact is contained in the same numbered paragraph.
2. Opposing Party's Statement of Facts
Each party opposing a summary judgment motion also must submit a statement of facts divided as follows.
a. Response to Movant's Statement
The first section must consist of only the non-moving party's disputes, if any, with the moving party's claimed undisputed facts. The non-moving party's response to the moving party's claimed undisputed facts shall be in separately numbered paragraphs that coincide with those of the moving party's claimed undisputed facts. Any statements of fact that are disputed by the non-moving party must be followed by a specific reference to those portions of the evidentiary record upon which the dispute is based. All material facts set forth in the statement required of the moving party will be deemed to be admitted for summary judgment purposes unless controverted by the response of the party opposing summary judgment.
b. Additional Undisputed Facts
The second section may contain additional, allegedly undisputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The second section of the opposing party's statement of facts, if any, shall be clearly designated as such. FN. 4. The opposing party should include only facts which the opposing party contends are true and not in genuine dispute.
FN. 4. Each statement of fact should be supported by its own evidentiary citation, regardless of the fact that more than one statement of fact allegedly is supported by the same specific reference to the evidentiary record or more than one statement of fact is contained in the same numbered paragraph.
c. Additional Disputed Facts
The third section may contain additional, allegedly disputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The third section of the opposing party's statement of facts, if any, shall be clearly designated as such. Each statement of allegedly disputed facts must be followed by specific reference to those ...

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