Opinion
20-cv-4-EFM
07-24-2023
BILLY D. CLOUD, Plaintiff, v. CHRISTINE WORMUTH, SECRETARY OF THE U.S. ARMY, Defendant.
MEMORANDUM AND ORDER
ERIC F. MELGREN CHIEF UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Christine Wormuth, Secretary of the U.S. Army's Motion for Summary Judgment (Doc. 77). Defendant seeks summary judgment on Plaintiff Billy D. Cloud's claims for discriminatory compensation, hostile work environment, and retaliation all under the Age Discrimination in Employment Act (“ADEA”). Because genuine issues of material fact exist as to Plaintiff's claims for discriminatory compensation and hostile work environment, the Court denies Defendant's Motion as to the same. The Court grants summary judgment on Plaintiff's ADEA retaliation claim because Plaintiff fails to substantively respond to Defendant's Motion as to that claim.
I. Factual and Procedural Background
A. The parties' contentions regarding factual issues
Before stating the facts of the case, the Court must address the parties' contentions about the admissibility of the other's evidence. First, Plaintiff argues that this Court should disregard all of Defendant's declarations because they come from interested parties. He further contends that Defendant summary chart of night shift employees during the relevant period is inadmissible as hearsay. Finally, Defendant contends that Plaintiff's own declaration is nothing but a “sham affidavit.” The Court will address each of these evidentiary arguments in turn.
1. Defendant's declaration
First, Plaintiff argues that Defendant's multiple declarations are inadmissible under Reeves v. Sanderson Plumbing Prod., Inc.There, the Supreme Court declared that when ruling on a motion for judgment as a matter of law, “the court should review the record as a whole [but] must disregard all evidence favorable to the moving party that the jury is not required to believe.”Thus, “the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.”The Tenth Circuit has applied this standard to motions for summary judgment without analysis. At least one Tenth Circuit case, however, has clarified that the rule only applies to “a matter [the moving party] must prove on the strength of its own evidence.”
In the present case, the Court agrees with Defendant that Plaintiff bears the burden of proof to show either direct evidence of discrimination or to establish his prima facie case under the familiar McDonnell Douglas framework. However, even this implies a restrictive reading of Reeves, one potentially fatal to any employer's motion for summary judgment.For example, the employer bears the burden of production on the second step of a McDonnell Douglas framework to articulate a legitimate, nondiscriminatory reason for the adverse action. If the Court could not consider the testimony of a defendant-employer's witnesses, it is clear that many or most employers could never meet their burden at that stage.After all, articulating a reason is inherently reliant on the defendant-employers reasoning, something usually establish through their testimony. This reasoning is echoed and adhered to by the majority of circuits which conclude that, under Reeves, courts ruling on summary judgment motions may still consider uncontradicted testimony from interested witnesses.
As mentioned above, the Tenth Circuit has not explicitly analyzed this issue. However, given the clear weight of authority and the logic of their reasoning, the Court is confident it would arrive at a similar conclusion as its sister circuits. Thus, the Court holds that it may consider Defendant's declarations insofar as they are uncontradicted by other evidence.
2. Plaintiff's objections to Defendant's summary chart
Second, Plaintiff objects to an Excel spread sheet purporting to summarize the number of night shift employees that Plaintiff oversaw between November 3, 2014, and November 9, 2016. Plaintiff raises two specific objections to this evidence: hearsay and inadmissible summary evidence because the underlying records were not provided to the court.
The Court has little hesitancy in concluding that the business records exception to hearsay under Fed.R.Evid. 803(6) applies to the summary chart. To satisfy this exception, the hearsay's proponent must show that the records would: “(1) have been prepared in the normal course of business; (2) have been made at or near the time of the events recorded; (3) be based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) indicate the sources, methods and circumstances by which the record was made were trustworthy.” Defendant submits an affidavit from William Morgan, who claims to have created the original rosters on which the summary is based. Morgan's affidavit establishes that as a part of his duties as a clerk, he prepared the rosters on or shortly after the night shift in question based on his personal knowledge. He further indicates that the sources, methods, and circumstances for those rosters is trustworthy. Therefore, to the extent the rosters themselves constitute hearsay, the Court finds that the business records exception applies. Thus, they are admissible.