Commercial Litigation and Arbitration

Hearsay Emails May Be Considered on Summary Judgment under Rule 56(c)(2) If the Authors Could Testify to the Contents at Trial

Griffith v. Nicholas Financial, Inc, 2016 U.S. Dist. LEXIS 135524 (N.D. Ala. Sept. 30, 2016):

Plaintiff Krysti Griffith is a former employee of defendant Nicholas Financial, Inc. Ms. Griffith has systematic lupus erythematosus, an autoimmune disease commonly called lupus. Ms. Griffith worked for Nicholas Financial as a customer service representative in Nicholas Financial's Huntsville, Alabama office. Ms. Griffith last worked for Nicholas Financial on January 30, 2014. Plaintiff Ms. Griffith claims that Nicholas Financial terminated her employment because the company did not want to accommodate the complications of her lupus. Nicholas Financial maintains that Ms. Griffith's employment ended because of her insubordination and poor attitude. In this lawsuit, Ms. Griffith asserts claims against Nicholas Financial under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Pursuant to Federal Rule of Civil Procedure 56, Nicholas Financial asks the Court to enter judgment in its favor on Ms. Griffith's ADA claim. (Doc. 22). For the reasons [*2]  stated below, the Court denies the motion for summary judgment.



Ms. Griffith worked for Nicholas Financial for nearly two years. (Doc. 1, ¶¶ 7-8; 38-40). In fact, Ms. Griffith was the longest-serving employee at Nicholas Financial's Huntsville branch. (Doc. 20-5, p. 29). Jerry Hudgins, Regional Vice President at Nicholas Financial, regarded Ms. Griffith as "a benefit to the team," (see doc. 20-7, p. 6), and two months before Ms. Griffith's last day at Nicholas Financial, Mr. Hudgins told Ms. Griffith that she performed "great" for the company. (Doc. 20-2, p. 26). In addition, Susan Burek, Director of Human Resources at Nicholas Financial, acknowledged that Ms. Griffith had been "extremely loyal to the branch." (Doc. 20-7, p. 9).

As a customer service representative, Ms. Griffith handled delinquent customer accounts; completed state audits and other reports; filed documents; interviewed and approved customers; interacted with dealers; and opened and closed the Huntsville office. (Doc. 20-1, p. 13; Doc. 20-2, p. 19). According to Ms. Griffith, she "loved [her] job" at Nicholas Financial, and she "would [have] never quit there." (Doc. 20-3, p. 5).

Ms. Griffith contends that Nicholas Financial forced her to leave her job because of her lupus. [*4]  Lupus is a systematic autoimmune disorder that affects the central nervous system and is incurable.1 Lupus is unpredictable; it has periods of dormancy and periods of flare. During a temporary flare, lupus may cause fever, weakness, mouth sores, headaches, migraines, body aches, fatigue, skin lesions, and inflammation. (See Doc. 20-1, p. 11). Exposure to ultraviolet or fluorescent lighting, sunlight, and stress can trigger a lupus flare for Ms. Griffith. (Doc. 20-1, p. 12). Ms. Griffith's co-workers at Nicholas Financial knew that she suffers from lupus. (See, e.g., Doc. 20-1, p. 17; Doc. 20-3, p. 14-15).2

1   Systemic lupus erythematosus is defined as:

a chronic, remitting, relapsing, inflammatory, and often febrile multisystemic disorder of connective tissue, acute or insidious in onset, characterized principally by involvement of the skin, joints, kidneys, and serosal membranes. It is of unknown etiology, but it is thought to represent a failure of the regulatory mechanisms of the autoimmune system that sustain self-tolerance and prevent the body from attacking its own cells. . . . The disorder is marked by a wide variety of abnormalities, including arthritis and arthralgias, nephritis, [*5]  central nervous system manifestations, pleurisy, pericarditis, leukopenia . . . .

The Sloane-Dorland Annotated Medical-Legal Dictionary 330 (1992 supp.).

2   On a few occasions, Ms. Griffith's coworkers made statements that she attributed to her lupus. For example, one day when she was sick, Mr. Hudgins stated to her that she "sounded like [she] was dying, and . . . should go to the hospital and get checked out." (Doc. 20-1, p. 19). On another occasion, Brandi Adams, District Manager at Nicholas Financial, asked Ms. Griffith, "How can [you] eat so much food and be skinny?" (Doc. 20-1, p. 18). Finally, Stuart Whitaker, Huntsville Branch Manager at Nicholas Financial, told Ms. Griffith in his first week of work he had a relative who had lupus. (Doc. 20-1, p. 18; Doc. 20-3, p. 14).

Branch manager Stuart Whitaker learned that Ms. Griffith had lupus soon after he joined Nicholas Financial. (Doc. 20-3, p. 14). Nicholas Financial hired Mr. Whitaker on October 28, 2013. (Doc. 20-3, p. 12). During his first week on the job, when Mr. Whitaker tried to replace a fluorescent light above Ms. Griffith's desk, Ms. Griffith instructed him not to repair the broken light because she feared that she could have [*6]  a lupus flare as a result of exposure to fluorescent lighting. (Doc. 20-1, p. 16-17; Doc. 20-3, p. 14). She explained to Mr. Whitaker that dimly-lit conditions were "better for [her] because" of her "lupus."3 (Doc. 20-1, p. 16-17; Doc. 20-3, p. 14). Mr. Whitaker acknowledges that Ms. Griffith told him that "brightness . . . bother[ed] her." (Doc. 20-3, p.14). Ms. Griffith asserts that Mr. Whitaker asked how often she had lupus flares; she responded that her lupus flares were also triggered by stress. (Doc. 20-1, p. 40; Doc. 20-2, p. 53). Mr. Whitaker did not replace the light above Ms. Griffith's desk, and she worked in a dim workspace until late December 2013. (Doc. 20-1, p. 17).

3   Given her sensitivity to light due to lupus, Ms. Griffith also testified that her car "windows have to be tinted," see doc. 20-1, p. 12; that she has to wear prescription sunglasses, see doc. 20-1, p.25; and, that she gets dressed at home in the dark, see doc. 20-1, p. 25.

Before Mr. Whitaker joined Nicholas Financial, Mr. Hudgins had considered promoting Ms. Griffith to assistant branch manager at Nicholas Financial's Huntsville location.... Just after Mr. Whitaker became branch [*7]  manager, Mr. Hudgins directed Mr. Whitaker to give Ms. Griffith "a working interview" for the promotion. (Doc. 20-2, p. 22). According to Ms. Griffith, Mr. Hudgins stated to her that she could "totally get promoted," and that he had "no issue" with it. (Doc. 20-1, p. 21; Doc. 20-2, p. 22). To demonstrate her ability, Ms. Griffith wanted to conduct face-to-face meetings with clients "to drum up new business." (Doc. 20-3, p. 13; Doc. 20-1, p. 20). Ms. Griffith maintains that Mr. Whitaker denied her opportunities to show that she was qualified for a promotion. (Doc. 20-3, p. 13; Doc. 20-1, p. 20). In fact, according to Ms. Griffith, in early November 2013, Mr. Whitaker informed her that he had already made plans to hire someone else as assistant branch manager. (Doc. 20-1, p. 23). As a result, Ms. Griffith emailed Mr. Hudgins and withdrew her interest in the position. (Doc. 20-2, p. 26). Ms. Griffith did not feel that she would "have a fair chance at proving [herself]." (Doc. 20-2, p. 26).

In the weeks that followed, Mr. Whitaker felt that Ms. Griffith's attitude "turned sour." (Doc. 20-3, pp. 12-13). Mr. Whitaker and Brandi Adams, the Nicholas Financial district manager who supervised [*8]  Mr. Whitaker, testified that they had to have conversations with Ms. Griffith about her attitude. (Doc. 20-3, pp. 17-22; Doc. 20-4, p. 14; Doc. 20-7, pp. 7-13). During one conversation in which Mr. Whitaker reprimanded Ms. Griffith for her attitude, Mr. Whitaker "followed [her] outside" and "yell[ed] at [her]." (Doc. 20-1, p. 23).

In late December 2013, Nicholas Financial hired Johnny Latapie to serve as the assistant branch manager at the Huntsville location. (Doc. 20-3, pp. 13-14). To make room for Mr. Latapie, Mr. Whitaker asked Ms. Griffith to move to a new desk in the front of the office. (Doc. 20-3, p. 14). Ms. Griffith alleges that she informed Mr. Whitaker that she did not want to move to the front of the office because she worried that the sunlight that the front desk received would set off a lupus flare. (Doc. 20-1, p. 24).

Ms. Griffith contacted Human Resources at Nicholas Financial to complain about the move, explaining that transitioning to a desk surrounded by sunlight "[is] going to cause a flare-up with the lupus." (Doc. 20-1, p. 25-26). Mr. Whitaker maintains that he asked Ms. Griffith to move because he "need[ed] to have [his] Assistant Manager in training next to [him]." (Doc. 20-7, [*9]  p. 11). Ms. Griffith testified that Ms. Adams was "mad at [her] because [she had] called [Human Resources]," and that Ms. Adams instructed Ms. Griffith never to "call anybody other than her" with complaints. (Doc. 20-1, p. 26). Ultimately, Mr. Whitaker told Ms. Griffith, "It's not up to [you]"--"[your] desk [will] be moved." (Doc. 20-1, p. 25). Ms. Griffith complied with Mr. Whitaker's orders. (Doc. 20-1, p. 25).

On January 14, 2014, Mr. Whitaker evaluated Ms. Griffith's work performance. (Doc. 20-1, p. 30; Doc. 20-2, pp. 32-38). The evaluation scale is as follows:

   5: Job performance is far beyond expectations

   4: Job performance exceeds expectations

   3: Job performance meets expectations

   2: Job performance is below expectations

   1: Job performance is unacceptable

(Doc. 20-2, p. 32). The performance review is divided into seven broad categories and sixty-one sub-categories. (Doc. 20-2, p. 32). These categories include attitude; acceptance of constructive criticism; interactions with dealers, customers, and coworkers; and communication of problems to staff and management. (Doc. 20-4, pp. 34-40). Ms. Griffith received an overall average score of "4.667." (Doc. 20-2, pp. 32-38). Mr. Whitaker gave [*10]  Ms. Griffith ten 3s; twenty-two 4s; twenty-eight 5s; and one "N/A." (Doc. 20-2, pp. 32-38). Ms. Griffith received no unacceptable ratings. (Doc. 20-3, p. 19). Mr. Whitaker testified that he was aware of the performance evaluation scale when he assessed Ms. Griffith's performance. (Doc. 20-3, p. 19). According to Mr. Whitaker, when he and Ms. Adams debriefed about Ms. Griffith's evaluation, Ms. Adams told him that he was "spot on with everything." (Doc. 20-3, p. 20). Ms. Adams corroborated Mr. Whitaker's testimony. (Doc. 20-4, p. 15).4

4   When questioned about why Ms. Griffith's review was good if her performance was poor, Ms. Adams replied, "That's not a good review." (Doc. 20-4, p. 17).

On January 20 and 21, 2014, roughly two weeks after Mr. Whitaker made Ms. Griffith move to a new desk that exposed her to sunlight, Ms. Griffith missed work because she had a lupus flare. (Doc. 20-1, p. 31-34; Doc. 20-2, p. 41). Ms. Griffith attributed the lupus flare to the sunlight exposure at the new desk. (Doc. 20-1, pp. 31-32). Ms. Griffith returned to work with a doctor's excuse and maintains that she informed Mr. Whitaker that she was absent because of a lupus flare. (Doc. 20-1, p. 31; Doc. 20-2, [*11]  p. 41). According to Ms. Griffith, Mr. Whitaker advised her that she "[i]n general . . . couldn't have absences" and "had to be [at work] every day." (Doc. 20-1, p. 32).

On January 29, 2014, one week following Ms. Griffith's disability-related absences, Mr. Whitaker made Ms. Griffith work outside of the branch; she made field calls all day. (Doc. 26, ¶ 4). According to Ms. Griffith, she had never made field calls for more than a couple of hours on a given day. (Doc. 20-1, p. 24). Therefore, she found it "unusual . . . to [make such calls] all day." (Doc. 26-1, ¶ 4).

While Ms. Griffith made field calls, Mr. Whitaker interviewed candidates to replace her. (Doc. 20-3, pp. 26-27). According to Ms. Adams and Mr. Whitaker, they thought that Ms. Griffith may quit because she seemed unhappy, and they knew that the Huntsville branch needed a customer service representative. (Doc. 20-3, p. 26; Doc. 20-4, p. 17). But Ms. Adams testified that Ms. Griffith "always" said that she was "happy" at Nicholas Financial, and Ms. Adams admitted that Ms. Griffith never said to her, "I'm not happy about this, or I'm not happy about that." (Doc. 20-4, p. 17). Mr. Hudgins--who oversees 34 branches in nine states--does [*12]  not recall another occasion where Nicholas Financial interviewed candidates for a position based on a suspicion that the sitting employee might resign. (Doc. 20-5, pp. 4-8).

While Ms. Griffith was out of the branch conducting field calls, she spoke with Marissa Bootes, administrative assistant at the Nicholas Financial Huntsville branch. (Doc. 20-1, p. 36). Ms. Bootes told Ms. Griffith about the interviews. (Doc. 20-1, p. 36). Ms. Griffith maintains that Ms. Bootes told her that one of the interviewees said that he was interviewing for Ms. Griffith's position. (Doc. 20-1, p. 36). When Ms. Griffith returned to the branch later that afternoon, she reviewed an e-mail that Mr. Hudgins had sent to branch employees alerting them that, among other things, he was unable to participate in interviews at the Huntsville branch because of inclement weather. (Doc. 20-2, pp. 48-49; Doc. 20-1, p. 35). After reading that e-mail, Ms. Griffith e-mailed Ms. Adams and asked whether the Huntsville branch was hiring a new employee. (Doc. 20-1, p. 35; Doc. 20-2, p. 51). Ms. Adams did not reply to Ms. Griffith's e-mail. (Doc. 20-1, p. 35).

On the same day, after Ms. Griffith e-mailed Ms. Adams, Ms. Griffith [*13]  asserts that Ms. Adams called the branch to speak with Mr. Whitaker. (Doc. 20-1, p. 41). Ms. Griffith claims that she knew that Ms. Adams was calling because she recognized Ms. Adams's telephone number on the "caller ID." (Doc. 20-1, p. 41). Ms. Griffith testified that she heard Mr. Whitaker say to Ms. Adams, "Not yet, but I will before I leave." (Doc. 20-1, p. 41). Before Mr. Whitaker left the branch for the day, he gave Ms. Griffith a negative job performance review--just two weeks after her favorable job performance review, and one week after her lupus flare. (Doc. 20-1, p. 32; Doc. 20-4, pp. 41-42). According to the new evaluation, Ms. Griffith's work was inconsistent, lacked urgency, and needed to improve in certain areas. (Doc. 20-4, p. 41-42). Ms. Griffith, who claims that Mr. Whitaker did not explain the unfavorable review to her, states that Mr. Whitaker "basically [said to her that she] wasn't doing [her] job." (Doc. 20-1, p. 32). Given that she had obtained a positive job performance evaluation just two weeks earlier, and in light of Mr. Whitaker conducting interviews to replace her, Ms. Griffith felt that the review "was completely unfounded" and that she had "been falsely [*14]  written up." (Doc. 20-1, p. 32-37; Doc. 20-2, p. 53). Later that evening, when she went home, Ms. Griffith wrote a five-page response to the negative evaluation. (Doc. 20-1, p. 37).

On the next morning, January 30, 2014, Ms. Griffith brought her response to the unfavorable job review with her to work. (Doc. 20-1, p. 33; Doc. 20-2, p. 43-47). Ms. Griffith asserts that she presented her response to Mr. Whitaker and attempted to fax it to Human Resources, but Mr. Whitaker stopped her. (Doc. 20-1, p. 35-37). Ms. Griffith also alleges that she wanted to call Mr. Hudgins to discuss the bad review, but Mr. Whitaker again did not permit her to do that. (Doc. 20-1, p. 37-41).

According to Ms. Griffith, Ms. Adams called her later that morning and scolded her for not greeting Mr. Whitaker earlier that morning and for having a "bad attitude." (Doc. 20-1, p. 40). Ms. Griffith maintains that Ms. Adams then commanded her to "get [her] shit and leave." (Doc. 20-1, p. 40).5 Ms. Griffith agreed; said "Okay. Thank you"; and then ended the call. (Doc. 20-1, p. 41). Ms. Griffith maintains that she did not hang up on Ms. Adams or interrupt her. (Doc. 20-1, p. 40). Ms. Griffith understood that, as district [*15]  manager, Ms. Adams had authority to terminate her, because Ms. Adams's predecessor had hired and fired branch employees. (Doc. 26, ¶ 5). Ms. Bootes, Ms. Griffith's co-employee, "assume[d that] [Ms. Griffith] got fired." (Doc. 20-6, p. 38).

5   In her EEOC charge and complaint, Ms. Griffith asserts that Ms. Adams said "to get my belongings and leave." (Doc. 1, p.5; Doc. 20-2, p. 53). However, Ms. Griffith testified that Ms. Adams told her "to get my shit and leave," and "to get my stuff and leave." (Doc. 20-1, pp. 40-41). For purposes of this opinion, the Court does not find a material difference among the three variations of Ms. Adams's alleged statements and finds that each of them communicates the same message.

Ms. Griffith followed Ms. Adams's directives: she packed her belongings and left the branch, reasoning that she had just been terminated. (Doc. 20-1, p. 41).6 Before Ms. Adams had called Ms. Griffith, she testified that she had arranged a second interview with Anthony Fields for Ms. Griffith's position. (Doc. 20-4, p. 25). Moreover, Mr. Whitaker had asked Human Resources to check Mr. Fields's background and credit history before Ms. Griffith arrived at the office on the morning of [*16]  January 30, 2014. (Doc. 20-3, p. 32; Doc. 20-4, p. 57)

6   Nicholas Financial contends that Ms. Griffith threw and dumped files, and then "peeled" out of the parking lot. (Doc. 20-1, p. 38).

Ms. Griffith testified that after she left the branch on January 30, 2014, she called Mr. Hudgins, but he did not answer. (Doc. 26-1, ¶ 6). Ms. Griffith then called Human Resources to report that Ms. Adams had discharged her. (Doc. 20-1, p. 41; Doc. 20-6, p. 6). Ms. Griffith asked that her final pay check be separated from other monies that Nicholas Financial owed her. (Doc. 20-1, pp. 42-43). Ms. Griffith maintains that she explained that Mr. Whitaker had given her a positive performance review with no unfavorable ratings; then, just two weeks later, given her a negative performance review; and finally, had her work outside of the office so that he could interview people to replace her. (Doc. 20-6, p. 6). According to Ms. Griffith, when she asked how long her termination had been planned, Human Resources employee Susan Ms. Burek responded that "she was not at liberty to discuss that." (Doc. 26-1, ¶ 6). Finally, Ms. Griffith asserts that when she asked Ms. Burek when she would lose her medical insurance, [*17]  Ms. Burek responded that "it would be terminated the next day." (Doc. 26-1, ¶ 6; Doc. 20-1, p. 42).

On February 10, 2014, Nicholas Financial hired Anthony Fields to replace Ms. Griffith. (Doc. 20-3, p. 40).7 Sometime thereafter, Ms. Griffith filed an application for unemployment. (Doc. 20-1, p. 41). Nicholas Financial informed the Alabama Department of Labor that Ms. Griffith's separation of employment was due to "lack of work." (Doc. 20-6, p. 21). Nicholas Financial did not report that Ms. Griffith had "voluntary[il]y quit." (Doc. 20-6, p. 21).8 According to Nicholas Financial, it had considered inviting Ms. Griffith back to her job, but, ultimately, the company felt that her insubordination, poor attitude, and behavior foreclosed that possibility. (Doc. 20-5, pp. 20-22).

7   The record does not indicate whether Mr. Fields was disabled.

8   Nicholas Financial alleges that it indicated to the Alabama Department of Labor that Ms. Griffith's separation of employment was due to "laid off/lack of work" because "although [Ms. Griffith had] handled things poorly that final day, [Nicholas Financial] felt that she had done some good for us in the past, and we felt that she should get the unemployment." (Doc. 20-6, p. [*18]  8).


1. Admissibility of Nicholas Financial Management E-mails

As a preliminary matter, Ms. Griffith urges the Court to exclude e-mail correspondence among Kevin Bates, chief operating officer at Nicholas Financial, Mr. Hudgins, [*20]  Ms. Adams, and Mr. Whitaker. (Doc. 27, p. 12). The e-mails are inadmissible hearsay if Nicholas Financial is offering them to prove that Ms. Griffith voluntarily resigned and was not terminated. Fed. R. Evid. 801(c). As a general rule, a district court cannot grant summary judgment on the basis of inadmissible hearsay. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012). But under Rule 56(c)(2), a district court reviewing a motion for summary judgment may consider a hearsay statement "if the statement could be reduced to admissible evidence at trial or reduced to an admissible form," such as "hav[ing] the hearsay declarant testify directly to the matter at trial." Jones, 683 F.3d at 1293 (citing Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996). And a hearsay statement is admissible if it is not offered for the truth of the matter asserted in the out-of-court statement.

Nicholas Financial argues that the e-mails show that on her last day with Nicholas Financial, Ms. Griffith was "merely being sent home for the day," and that Ms. Griffith "chose[] to end the employment relationship." (Doc. 22, pp. 25-30). At trial, the participants in the e-mail exchange--Mr. Bates, Mr. Hudgins, Ms. Adams, and Mr. Whitaker--can testify directly as to whether, in their view, Ms. Griffith was fired or resigned. In fact, sworn deposition testimony from Mr. Bates, [*21]  Mr. Hudgins, Ms. Adams, and Mr. Whitaker is consistent with the explanation in the e-mails about the reason for Ms. Griffith's departure from the Huntsville branch office. See Jones, 683 F.3d at 1294. Consequently, the Court may consider the e-mails in this summary judgment opinion.


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