Opinion
Cause No. IP00-0535-C-T/G
March 29, 2001
Oscar L. Harris, Jr. Indianapolis, IN.
Michelle E. Smith, Reed Smith Indianapolis, IN.
Richard Ewing, Due Doyle Pugh Ewing Metzger, LLP Indianapolis, IN.
David L. Terry, McGuire Woods Battle Boothe, LLP Charlotte, N.C.
ENTRY REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Though this entry is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. Under the law of the case doctrine, it is presumed that the ruling or rulings in this entry will govern throughout the litigation before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). It should be noted, however, that this district judge's decision has no precedential authority and, therefore, is not binding on other courts, other judges in this district, or even other cases before this district judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); Old Republic Ins. Co. v. Chuhak Tecson, P.C., 84 F.3d 998, 1003 (7th Cir. 1996) ("decisions by district judges do not have the force of precedent"); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995) ("District court decisions have no weight as precedents, no authority.").
The Plaintiff, Oscar L. Harris, Jr., brings claims against the Defendant, Estes Express Lines ("Estes"), alleging that the Defendant discriminated against the Plaintiff on account of his age and race in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 ("§ 1981"). The Defendant filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1, which the Plaintiff opposes.
LEGAL STANDARD
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if "the pleadings, depositions, answers to interrogatories and, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An entry of summary judgment is mandated if, after adequate time for discovery, a party "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). To oppose a motion for summary judgment, "there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining whether a genuine issue of material fact exists, all facts are construed in the light most favorable to the nonmoving party (Oscar Harris) and all reasonable inferences are drawn in favor of that party. See Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000) (citing Anderson, 477 U.S. at 255).
In the present case, Estes, as the moving party, does not bear the burden of proof at trial. The Supreme Court, in Celotex, held that the burden on a moving party such as Estes "may be discharged by `showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. Since the motion asserts that the Plaintiff lacks proof to establish a requisite element of his case for discrimination, Estes must show the absence of facts to support the Plaintiff's claims.
In response, the burden on the Plaintiff is to demonstrate the existence of a genuine dispute. Under Rule 56(e), "an adverse party may not rest upon mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Thus, the Plaintiff must introduce specific facts, which would permit a rational trier of fact to find in his favor. Celotex Corp., 477 U.S. at 323-24; Anderson, 477 U.S. at 248. He must demonstrate that a genuine issue exists as to each element of the claims. If the factual allegations relied upon by the non-moving party, the Plaintiff, would not lead a rational trier of fact to return a verdict in his favor, no genuine issue of fact exists and summary judgment should be granted. Matushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Seventh Circuit has determined that "the summary judgment standard is applied with special scrutiny to employment discrimination cases, which often turn on the issues of intent and credibility." Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000) (citing Bellaver, 200 F.3d at 491; Geier v. Medtronic, Inc., 99 F.3d 238, 240 (7th Cir. 1996)). However, neither "the mere existence of some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, nor the existence of "some metaphysical doubt as to the material facts," Matsushita Elec., 475 U.S. at 586, will defeat a motion for summary judgment.
The court, having considered the motion and the submissions of both parties, decides as follows.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
The facts herein are undisputed unless otherwise noted. All facts and reasonable inferences drawn from those facts are taken in the light most favorable to the Plaintiff, Oscar Harris. If facts are disputed, the court takes to be true the Plaintiff's version for purposes of summary judgment.
On April 29, 1998, Estes hired the Plaintiff, Oscar Harris ("Oscar"), as a truck driver in the Indianapolis Terminal. Oscar is an African-American male and was 53 years of age during the relevant time period. He was hired by Terminal Manager Buddy Harris ("Buddy"). His supervisor, Buddy, is a Caucasian male and is younger than Oscar.
The court will call these parties by their respective first names to avoid confusion.
Oscar testified that Buddy was younger and in his 40s or 50s. (Oscar Harris Dep. at 216.)
In June of 1998, Buddy transferred Oscar into a position as local delivery driver. This position resulted in a three dollar pay increase, and Oscar preferred this new position over his old one.
During the course of his six month employment with Estes, Oscar suffered from pervasive disciplinary problems. Beginning in June and continuing through October, Oscar was tardy seven times ranging from half an hour to over four hours. In addition, Oscar was involved in a "loud verbal argument" with a shop foreman in early October. (Oscar Harris Dep. Ex. 12.)
In his deposition, Oscar testified that Buddy would allow him to come in late on certain days, but Oscar was unable to testify that the seven incidents noted in his personnel file were any of those days. (Oscar Harris Dep. at 132.)
Regretfully, Oscar was subjected to racially derogatory comments on two occasions while employed at Estes. Early in his employment, a Caucasian driver from another terminal called him a racial epithet. At some date after this incident transpired, a Caucasian mechanic called Oscar the same epithet. On the dates of both incidents, Oscar reported the incidents to Buddy, who counseled both employees.
Oscar asserts that after the mechanic was counseled, he again used a racial epithet towards Oscar. At some unknown later date, Oscar suggested to Buddy in passing that nothing had changed with reference to the mechanic. In addition, Oscar alleges another co-worker was hostile to him, and he believed this was because of his race. This conclusory assertion based upon Oscar's subjective belief is insufficient to raise a genuine issue. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 401 (7th Cir. 1997) ("`[I]f the subjective beliefs of plaintiffs in employment discrimination cases could, by themselves, create genuine issues of material fact, then virtually all defense motions for summary judgment in such cases would be doomed.'"), cert. denied, 523 U.S. 1118 (1998) (quoting Mills v. First Fed. Sav. Loan Assoc., 83 F.3d 833, 841-42 (7th Cir. 1996)) quoted in Skorup v. Modern Door Corp., 153 F.3d 512, 516 (7th Cir. 1998).
According to Oscar, he was assigned an additional duty unlike his Caucasian counterparts. On one occasion, Oscar returned from driving his route and Buddy asked him to rearrange some tractors at the terminal. All the other drivers had already left for the day. Having just finished his route, Oscar felt this assignment was unfair.
Finally, on October 19, 1998, Oscar failed to show up for work as assigned. The following workday, Oscar phoned Buddy an hour after the beginning of his shift stating that he was unable to come in to work. He informed Buddy that he was in the hospital and needed the week off. In response, Buddy asked Oscar to report to the office and discuss the matter. Over an hour after this conversation, Buddy received a telephone call from Oscar's wife informing him that Oscar was too intoxicated to return to work. After an entire week of absence, Buddy terminated Oscar's employment on October 26.
According to Oscar, his week long absence was the result of a "nervous breakdown" and he was "hospitalized for alcohol treatment." (Oscar Harris Dep. at 45, 152.) Oscar's "breakdown" was attributable at least in part to the death of his sister, which occurred September 14, 1998. Oscar's deposition testimony indicates he made attempts to receive time off prior to his absence in October.
Under Estes' policies, Oscar did not accrue any time off during his brief six month period of employment. Moreover, Estes' Code of Conduct ("attendance policy") states that when an employee fails to follow call-in procedures for absences on scheduled days of work, the employee "may be subject to disciplinary action, up to and including discharge." (Oscar Harris Dep. Ex. 5.) Although Oscar did not receive a copy of the attendance policy, he admitted that his misconduct warranted discipline but felt discharge was too severe a punishment.
Oscar admitted as much in his letter to Estes after his discharge, stating: "I let you down. . . . I know I should have call [sic] in but at that time I was not think [sic] because of all [sic] other things on my mind." (Oscar Harris Dep. Ex. 2.) In addition, Oscar admitted in his deposition that failure to follow call-in procedures may warrant discharge (Oscar Harris Dep. at 85), but that he should have been disciplined instead of terminated (Oscar Harris Dep. at 90). The failure of Estes to provide a copy of the attendance policy to Oscar is not material when he was aware his actions could result in discharge. See, e.g., Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 909 (8th Cir. 1999) (affirming summary judgment when plaintiff knew of attendance policy, despite not receiving a copy, because plaintiff failed to show discriminatory application of policy).
To demonstrate the severity of his punishment, Oscar offers evidence of two other truck drivers. Mike LNU and Jack LNU were both Estes truck drivers and Caucasian males aged between their 40s and 50s. Mike was involved in three motor vehicle accidents during the relevant time period. After the third accident, Mike was discharged pursuant to Estes' Accident Policy. Jack apparently was involved in one motor vehicle accident.
The court uses the abbreviation "LNU" for "last name unknown" because the record fails to disclose their last names. Hereinafter, the court refers to these individuals by their first names only.
Estes maintains a separate policy regarding workplace motor vehicle accidents by drivers. For the first preventable accident, the driver receives a written warning. If a second preventable accident occurs within twelve (12) months of the first, the driver will be suspended for at least five (5) days. For a third accident in the consecutive twelve (12) months, the driver will be dismissed. The accident policy states that failure to report an accident may subject an employee to immediate dismissal, which is consistent with the Code of Conduct.
Oscar filed a charge of discrimination on July 28, 1999, with the Equal Employment Opportunity Commission ("EEOC") alleging age and race discrimination. After receiving a notice of right to sue from the EEOC, Oscar filed a complaint in this court alleging age and race discrimination under the ADEA, Title VII and § 1981. Estes denied all claims, and further affirmatively defended that Oscar failed to exhaust administrative remedies, he failed to mitigate his damages, and his claims were barred by the applicable statute of limitations.
Estes filed a motion for summary judgment on August 23, 2000. Oscar opposes the motion, which is now pending before this court.
ANALYSIS
Oscar alleges that Estes discriminated against him because of his race during the course of his employment in violation of Title VII, and that his discharge by Estes was the result of age and race discrimination in violation of the ADEA, Title VII, and § 1981. In particular, Oscar claims in his brief that he was subjected to a racially hostile work environment, and that his discharge by Buddy was motivated by an unlawful age and race based animus. Oscar offers no evidence of direct discrimination, choosing the indirect method to demonstrate discrimination as enunciated in McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973), and its progeny.
Although McDonnell Douglas is traditionally applied to ADEA and Title VII claims, a plaintiff under § 1981 utilizes the same method of proof. Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir. 1996) ("We analyze § 1981 discrimination claims in the same manner as claims brought pursuant to Title VII of the Civil Rights Act, [that is] under the burden-shifting analysis announced by the Supreme Court in McDonnell Douglas v. Green." (citation omitted)).
Initially, to the extent Oscar asserts a hostile work environment claim, the court finds that it must be dismissed. Complaints filed in federal court are to be liberally construed. Burnett v. Grattan, 468 U.S. 42, 50 n. 13 (1984); Talley v. Lane, 13 F.3d 1031, 1033 (7th Cir. 1994). However, the court is "not also required to construct a party's legal arguments for him." Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993) (construing pro se complaint). Oscar initially filed a complaint in federal court pro se. This court ordered Oscar to supplement the complaint in order to clarify his legal claims. Complying with this court's order, Oscar supplemented by disclosing the comparables and attaching his EEOC charge. The charge references only his discharge as the alleged unlawful activity. Now represented by counsel, Oscar appears, in brief, to be expanding his claims for relief beyond the scope of his complaint by raising an issue as to hostile work environment. A plaintiff may not argue in a brief beyond that which is asserted as a claim for relief in the complaint. Oates v. Discovery Zone, 116 F.3d 1161, 1168 (7th Cir. 1997) (plaintiff's failure to include a racial harassment claim in the complaint precludes appeal and district court resolution); Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) ("A plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment."). Moreover, as Estes points out in reply to Oscar's brief, two isolated racial epithets by co-workers does not raise a triable issue as to the existence of a hostile work environment. McPhaul v. Bd. of Comm'rs, 226 F.3d 558, 567 (7th Cir. 2000) (use of racial epithet by co-worker on a weekly basis insufficient to establish a hostile work environment). Therefore, the court dismisses the allegation made by Oscar in his brief that he was subjected to a hostile work environment.
Oscar's assertion that he was asked by Buddy on one occasion to rearrange tractors is similarly without merit. There is no evidence in the record suggesting that other drivers were not asked to perform this task when they were the only driver present at the terminal. Cf. Brown v. Ameritech Corp., 128 F.3d 605, 608 (7th Cir. 1997) (plaintiff's personal belief regarding discriminatory assignments rejected).
The court now examines Oscar's claim that his discharge was motivated by unlawful age and race discrimination. To reiterate, Oscar chooses the indirect method of proof under McDonnell Douglas. According to the parties, Oscar establishes a prima facie case of age discrimination under the McDonnell Douglas burden-shifting scheme if he demonstrates that: "(1) he was in the protected age group; (2) he was performing according to his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated, substantially younger employees were treated more favorably." Biolchini v. Gen. Elec. Co., 167 F.3d 1151, 1153-54 (7th Cir. 1999) (citing McDonnell Douglas, 411 U.S. at 802). In the context of his race discrimination allegation, the fourth prong is demonstrated by a showing that: "the employer treated similarly situated persons not in the protected class more favorably." Johnson v. Zema, 170 F.3d 734, 742-43 (7th Cir. 1999). Estes only challenges Oscar's ability to prove the fourth prong of both the age and race claims.
Isolated epithets made by a non-decisionmaker have no relevancy to the discharge. Hunt v. City of Markham, 219 F.3d 649, 652 (7th Cir. 2000) ("the fact that someone who is not involved in the employment decision of which the plaintiff complains expressed discriminatory feelings is not evidence that the decision[maker] had a discriminatory motivation"). The Seventh Circuit explained in Smith v. Firestone Tire Rubber Co., 875 F.2d 1325, 1330 (7th Cir. 1989), that "stray remarks in the work place, while perhaps probative of [racial] harassment . . . cannot justify requiring the employer to prove that its hiring or firing or promotion decisions were based on legitimate criteria."
The court notes at this juncture that both parties have failed to argue the appropriate fourth prong for the age discrimination claim. Shortly before the filing of briefs by the parties, the Seventh Circuit clarified the fourth prong analysis in single termination, non-replacement situations. Ritter v. Hill `N Dale Farm, Inc., 231 F.3d 1039, 1043 (7th Cir. 2000). "In situations involving the simple termination of a single employee, normally the employee must establish that the employer sought a younger replacement for him." Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1999). On the other hand, when the employee is terminated as part of a reduction in force ("RIF"), the fourth prong requires a showing that "similarly situated, substantially younger employees were treated more favorably." Pitasi v. Gartner Group, Inc., 184 F.3d 709, 716 (7th Cir. 1999). The parties here are applying the fourth prong appropriate for RIF cases, inconsistent with the applicable prong for a single termination. (Pl.'s Mem. Opp'n at 4); (Def.'s Mem. Supp. at 3).
While the Plaintiff asserts that the fourth prong under the ADEA and Title VII are the same, the Defendant asserts a different prong but argues the Plaintiff's in the brief before the court. As explained ante, the Plaintiff and the Defendant rely on the inappropriate fourth prong under the ADEA.
The Defendant asserts this prong is the appropriate one. (Def.'s Mem. Supp. at 3.)
The Seventh Circuit recognized that in certain single termination cases, no replacement is sought by the employer. The court therefore created an exception where "the employer, in the course of restructuring the business, terminates an employee and does not replace the terminated employee, but arranges affairs so that the `responsibilities [of the terminated employee are] absorbed by other employees.'" Miller, 168 F.3d at 313 (quoting Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 451 n. 1 (7th Cir. 1998)) (alteration in original). In that context, "the fourth prong of the prima facie case is met by showing simply that the plaintiff was `constructively replaced,' in other words that his responsibilities were absorbed by employees not in the protected class." Ritter, 231 F.3d at 1043. See also Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1011 n. 5 (7th Cir. 2000) ("When a terminated employee's duties were absorbed by other employees, rather than eliminated from the company altogether, we do not require the former employee plaintiff to make out the prima facie case normally required for [RIF] cases."). Oscar has offered no evidence to the court of a replacement and neither party has suggested that this case involves a RIF. Therefore, the appropriate fourth prong in this case is demonstrated by a showing that Oscar's duties were absorbed by substantially younger employees. Because Oscar has failed to even allege such, Estes would be entitled to summary judgment on the age claim. However, accepting the fourth prong as argued by the parties, Oscar's claim still fails for the reasons stated ante.
In brief, Oscar argues without any supporting evidence that whether he was replaced is an issue of material fact which is in controversy. (Pl.'s Resp. Def.'s Statement Material Facts ¶ 23.) An unsupported allegation by a party is insufficient to create a genuine issue of material fact. See Chapple v. Nat'l Starch Chem. Co. Oil, 178 F.3d 501, 507 (7th Cir. 1999); Nat'l Soffit Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 266 (7th Cir. 1996). Since the allegation is clearly unsupported, the court cannot deem a replacement to exist.
For Oscar to prevail on the age claim-as the parties perceive the law to be-and to prevail on the race claim, he must raise a genuine issue that similarly situated employees outside the protected classes (non-African American substantially younger employees) were treated more favorably. Oscar offers evidence of two Caucasian employees in their 40s or 50s. Both these employees were truck drivers for Estes who were involved in presumably on-the-job and preventable motor vehicle accidents. Because Oscar alleges disparate treatment in the form of discipline, he must show that he "is similarly situated with respect to performance, qualifications, and conduct." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). He must have "engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Id. at 617-18. The Seventh Circuit notes that similarly situated individuals must have "infractions similar" to that of the plaintiff, Foster v. Arthur Anderson, LLP, 168 F.3d 1029, 1036 (7th Cir. 1999), and of "comparable seriousness," Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000), but "that acts of comparable seriousness need not be violations of identical company disciplinary rules," Hiatt v. Rockwell Int'l Corp., 26 F.3d 761, 770 (7th Cir. 1994). "Plaintiffs are free to compare similar conduct, focusing more on the nature of the misconduct rather than on specific company rules." Id. But "even if a plaintiff shows different treatment after violations of the same rule, he or she might not succeed in establishing a prima facie case" because dissimilar conduct may warrant the employer's dissimilar discipline. Johnson v. Artim Transport. Sys., Inc., 826 F.2d 538, 543-44 (7th Cir. 1987).
Oscar contends that the conduct of Mike and Jack constituted company violations of a similar nature. Although the argument is not well developed, Oscar apparently believes that the conduct of Mike and Jack is similar enough to warrant a second chance for himself. Mike and Jack were disciplined under Estes' accident policy for motor vehicles accidents. That policy lays out a three-tier system of discipline, with discharge as discipline for the final offense. Oscar was disciplined under Estes' attendance policy, which covers absences and the call-in procedure. Failure to follow call-in procedures may result in immediate discharge. The behavior and work performance of the comparables must be similar to Oscar's misconduct. The nature of the misconduct engaged in by the comparables is clearly dissimilar to Oscar's absences. While Estes may regard absences without calling in as highly disruptive to the delivery process, minor vehicle accidents are to be expected when the business is primarily engaged in operating motor vehicles. The nature of the two types of conduct are far more distinct than other cases rejecting the comparables as similarly situated. See, e.g., Hiatt, 26 F.3d at 771 (intoxication on the job and alcohol on company property dissimilar from falsification of company documents); Johnson, 826 F.2d at 543-44 (affirming district court finding that employee theft, absenteeism, traffic accidents and insubordination were dissimilar from intoxication on the job); cf. Morrow v. Wal-mart Stores, Inc., 152 F.3d 559, 562-64 (7th Cir. 1998) (rejecting numerous comparables who engaged in sexually offensive conduct because, unlike plaintiff, no formal complaint was ever made regarding their conduct). Moreover, there is nothing in the record to suggest that Mike or Jack suffered from persistent disciplinary problems over the course of six months. Cf. Spath, 211 F.3d at 397 (previous violations distinguished plaintiff from comparable). Therefore, Oscar has failed to create a genuine issue of material fact regarding Mike and Jack as similarly situated individuals.
Alternatively, Estes argues that because Jack and Mike are not "substantially younger" creates a presumption that Oscar cannot meet the fourth prong of age discrimination. In the Seventh Circuit, comparables must also be "substantially younger" than the plaintiff, which is considered to be at least a 10 year age differential. Hoffman v. Primedia Special Interest Publ'ns, 217 F.3d 522, 524 (7th Cir. 2000). This presumption may be rebutted with "`evidence that [the] employer considered [the] age to be significant.'" Id. at 524-25 (quoting Hartley v. Wis. Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997)). However, the record is not clear as to the exact ages of Mike and Jack, and Hoffman involved a single termination case involving a replacement. Id. at 524. Therefore, the court declines to rely on this argument to resolve the motion.
Moreover, Oscar argues that Estes' workplace policies may not be used as a reason for discharge. The basis for this argument rests with the claim that Oscar never received a copy of Estes' attendance policy. However, the court is unconvinced that Oscar could have believed an absence of five days may not result in termination. Ignoring that Oscar freely admitted by letter and in deposition testimony that his conduct was inappropriate and subject to discipline, Oscar admitted that he was aware of Estes' call-in procedure. The only evidence before the court clearly contradicts his argument, and it is unclear how being aware of the procedures but not having a copy bears any relevance to the case. Therefore, the court rejects Oscar's argument as contrary to all the evidence in the record.
Oscar also challenges the policies on an evidentiary basis (lack of authentication), which was subsequently corrected by Estes' counsel upon filing of Brenda Gerczak's affidavit. Ms. Gerczak is the Director of Personnel for Estes and a custodian of personnel policies.
Finally, Oscar argues that Estes "is required under [Rule 56(e)] to produce supporting or opposing affidavits . . . any documents or testimony . . . which support its Motion." (Pl.'s Mem. Opp'n at 9.) In the briefs submitted to the court by Estes, summary judgment is sought on the basis of Oscar's deposition testimony and an affidavit authenticating company documents. Although Oscar's argument on this point is unclear, the language of Rule 56, stated post, is unequivocal. The specious argument that Estes cannot rely on Oscar's deposition or the affidavit is contrary to the explicit language of the Rule. Moreover, statements made by Oscar in his deposition clearly are not hearsay under FED. R. EVID. 801(d)(2). Therefore, the court rejects Oscar's argument on its face.
"A party against whom a claim . . . is asserted . . . may, at any time, move with or without affidavits for a summary judgment in the party's favor upon all or any part thereof." FED. R. CIV. P. 56(b) (emphasis added).
Because Oscar has failed to create a genuine issue as to an essential element on both the age and race discrimination claims, the court declines to address the argument by Estes regarding its proffered legitimate business reasons for discharge, as such argument is moot.
CONCLUSION
Since Oscar Harris has failed to create a genuine issue as to an essential element of the prima facie case, Estes' Motion for Summary Judgment is GRANTED. Final judgment will be entered accordingly.
ALL OF WHICH IS ORDERED.