Commercial Litigation and Arbitration

Docs [Emails] Created by Adversary & Produced=Admissions, Even If Not Business Records — Sham Affidavit Rule: Inconsistency Going to Credibility Not Necly Sham — Summary Judgment: Conclusory Affidavits Ignored; More Leeway Given to SJ Opponent

Daniels v. Tex. Dept. of Transp., 2016 U.S. Dist. LEXIS 171017 (E.D. Tex. Dec. 10, 2016):


Pending before the Court are Defendants Texas Department of Transportation's ("TxDOT") and Executive Director James M. Bass's, in his official capacity, ("Bass") (collectively "Defendants") Motion for Summary Judgment ("Motion for Summary Judgment") [Dkt. 30] and Defendants' Motion to Strike Plaintiff's Affidavit as a "Sham Affidavit" ("Motion to Strike") [Dkt. 45]. After reviewing the Motion for Summary Judgment, the Motion to Strike, and all other relevant filings, the Court finds that Defendants' Motion for Summary Judgment [Dkt. 30] should be GRANTED IN PART AND DENIED IN PART and that Defendants' Motion to Strike [Dkt. 45] should be DENIED.


Plaintiff filed this suit on October 13, 2015, alleging TxDOT--itself and by and through Bass--had engaged in racial and disability discrimination and retaliation through its "disciplinary actions, [*2]  harassment, work assignments, and work crew segregation" [Dkts. 1 at 2; 20-1 at 3]. Plaintiff claims that his status as an African American man and/or as a physically disabled person led TxDOT to terminate him from his position as a "Maintenance Tech" in Sherman, Texas, on July 31, 2014 [Dkt. 20-1 at 3]. Plaintiff also describes "several disciplinary actions that had been issued to [him] over a four-year period" prior to his termination and used as a basis for his termination as "either too old to have any relevance [to the termination], or false or contrived[] . . . [in] an effort to paper [Plaintiff's] file to make [him] look as bad as possible[.]" Id. at 5. Plaintiff advances three distinct theories of liability (under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), and Section 504 of the Rehabilitation Act ("Section 504")) premised on his alleged physical disability and/or his status as an African American TxDOT employee.1

1   Plaintiff raised claims of racial discrimination and retaliation under both Title VII and 42 U.S.C. § 1981 as well as claims of disability discrimination, disability retaliation, and failure to accommodate under both the ADA and Section 504 [Dkt. 1]. At hearing before the Court and in his summary judgment briefing, however, Plaintiff dropped and/or indicated he did not oppose dismissal of his claims of racial discrimination and retaliation under 42 U.S.C. § 1981 and/or his disability retaliation and failure to accommodate claims under the ADA and Section 504.

TxDOT hired Plaintiff in early September, 1996 [Dkt. 30-1 at 35]. During the time period relevant to this case, Plaintiff worked as an at-will "General Transportation Tech III"--a "Maintenance Worker. . . in a non-supervisory position"--in [*3]  TxDOT's "Grayson County Maintenance Office, located in the Sherman Area Maintenance Office in Sherman[, Texas]." Id. at 2-3. From February 2, 2012 until Plaintiff's termination on July 31, 2014, Plaintiff's supervisor was John Grissom ("Grissom"), the Grayson County Maintenance Supervisor. Id. at 3. Plaintiff also worked with Assistant Maintenance Supervisor Clint Traylor ("Traylor") and Crew Leader Barry Nance ("Nance") during the relevant time period [Dkts. 20-1 at 9-10; 30-1 at 3]. Since May 11, 2013, Paul Montgomery ("Montgomery") has held the District Engineer position for the Paris District (which encompasses Grayson County), and, by virtue of his position, "[was] responsible for the hiring and job terminations within the [Paris] District" during that time [Dkt. 30-2 at 2-3]. Catherine Hostetler ("Hostetler") worked as a Human Resources Specialist for the Paris District during the relevant time period and conducted the investigation into Plaintiff's conduct and disciplinary history on which Montgomery relied in deciding to terminate Plaintiff [Dkts. 30-1 at 2-3; 30-2 at 2-3].

Doctors diagnosed Plaintiff in 2012 "with blocked and partially blocked arteries" after Plaintiff began to "notice that [*4]  he would quickly tire, be unable to exert himself physically to bend, lift, and climb, . . . would have sudden dizziness, and . . . would need to sit and rest . . . until his dizziness would stop and his strength would return" [Dkt. 20-1 at 4, 8; see also Dkts. 31-2 at 7; 50 at 2 (Defendants admit Plaintiff was diagnosed with blocked and partially blocked arteries)]. Following his diagnosis, Plaintiff "received surgical treatment and medication to address his medical condition" [Dkt. 20-1 at 5]. Also in late 2013 into early 2014, he began to request accommodations for his condition at work, namely "time away . . . for medical appointments" and "periodic breaks for a few minutes to rest/recuperate during the workday." Id. at 5. Plaintiff's condition admittedly began to require "more frequent doctor visits . . . toward the end of 2013 and the beginning of 2014." Id.

Plaintiff claims that, in or around this time and in response to these heightened demands, Grissom would harass Plaintiff "about his need for time off" and "about his need to rest" while at work. Id. Plaintiff also attributes Grissom's alleged harassment to racial discrimination: he asserts that, during his employ at TxDOT, supervisors [*5]  and coworkers consistently subjected him (and other racial minorities) to racial slurs and name-calling [Dkt. 20-1 at 11-12].2 Plaintiff points to "disciplinary actions" and TxDOT's "negative comments against [him] in May, June, and July of 2014 based upon false or contrived allegations and assertions" as further evidence of Defendants' alleged disability and race discrimination. Id. at 9.3

2   The Court expands on these assertions infra, as they relate specifically to Plaintiff's prima facie Title VII claims and pretext arguments.

3   The Court reiterates here its earlier finding that such claims are time-barred [Dkt. 59 at 11 (granting Defendants' Motion to Dismiss "as to the Statute of Limitations argument" contained therein)]. This finding does not prevent either Party from relying on those disciplinary actions and negative employment reviews as evidence, however. Cf. Rutherford v. Harris Cty., Tex., 197 F.3d 173, 186 (5th Cir. 1999) (citing United Air Lines, Inc. v. Evans, 431 U.S. 533, 558 (1977)).

Plaintiff alleges this discrimination and harassment culminated in a disagreement between Plaintiff, Grissom, and Traylor on July 23, 2014 (the "July 23, 2014 Incident"). Id. at 8-9. Plaintiff claims he notified "TxDOT management" on or before July 23, 2014 of a doctor's appointment he had scheduled to attend after work that day. See id. at 8.4 Grissom and Traylor each testified to the contrary that Plaintiff had informed neither of them about needing to leave work at a certain time [Dkts. 30-1 at 95; 30-4 at 14; 30-6 at 9], and Nance testified that he could not recall whether Plaintiff had informed anyone or not [Dkt. 30-8 at 49]. In any event, as the work day came to a close, Grissom (through Nance) notified Plaintiff's work crew that they would all need to remain in order to complete the job on which they [*6]  were then working. Id. at 9. Plaintiff asserts he resisted over the radio, telling Grissom and Traylor that the crew did not need to stay later (and that he would not stay later). Plaintiff claims he spoke with Grissom and Traylor in person as well. Id. Grissom and Traylor each testified Plaintiff was disruptive, insubordinate, and rude, both over the radio, and in person [Dkts. 30-4 at 4-5, 12-13; 30-6 at 5-7].

4   Plaintiff later testified he "did not mention" needing to leave work by a specific time to any supervisor until he talked to Nance at 11:30 on July 23, 2014 [Dkt. 30-3 at 6-7].

Grissom reported the July 23, 2014 Incident to Hostetler on July 24, 2014 [Dkt. 30-1 at 2]. Hostetler then "conducted an independent investigation in which [Hostetler] collected . . . witness statements from Mr. Grissom and Mr. Traylor[,] . . . reviewed [Plaintiff's] disciplinary file[,] . . . [and] determined . . . that [Plaintiff] was continuing to act inappropriately and unprofessionally at his job." Id. at 3. Hostetler did not collect a statement from Nance. Relying on Hostetler's investigation and report, Montgomery "made the decision to terminate the employment of Plaintiff . . . on July 23, 2014" based upon his review of Plaintiff's alleged misconduct and Plaintiff's "record of prior disciplinary action" relating to "misconduct on the job." [Dkt. 30-2 at 3].



Defendant and Plaintiff each proffer substantial evidence relating to the Motion for Summary Judgment. Defendant objects to the bulk of Plaintiff's evidence [Dkt. 44] including Plaintiff's alleged "sham" affidavit. Defendant asks the Court to strike the "sham" affidavit from the record [Dkt. 45]. The Court considers first the distinct issues raised by the alleged "sham" affidavit, and then turns to the Motion for Summary Judgment, considering Defendant's remaining evidentiary objections in the context of the Parties' broader dispute and as needed in its summary judgment analysis.

I. Evidentiary Standard

Rule 56(c)(2) provides that "part[ies] may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). The Federal Rules of Evidence [*12]  provide the appropriate framework for raising (and evaluating) objections to summary judgment evidence. Harrison v. Formosa Plastics Corp. Tex., 776 F. Supp. 2d 433, 441 (S.D. Tex. 2011) (analyzing hearsay objection to summary judgment evidence under Fed. R. Evid. 801(d)(2)(D) standard); see also Guarantee Trust Life Ins. Co. v. Wood, 631 F. Supp. 15, 22 (N.D. Ga. 1984) (finding that an affiant's "opinion would be admissible at trial under Fed. R. Evid. 701 and 702" and that "[t]he issue of admissibility of the affidavit is an evidentiary question, procedural by nature, that is governed by federal, rather than state law"). Given that courts may strike or disregard only objectionable portions of the summary judgment record, parties should object specifically to those portions that purportedly run afoul of evidentiary rules. See Akin v. Q-L Invs., Inc., 959 F.2d 521, 531 (5th Cir. 1992) ("On a motion for summary judgment, the district court should disregard only those portions of an affidavit that are inadequate and consider the rest."); see also Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure § 2738 (4th ed. 2016) ("It follows that a motion to strike should specify the objectionable portions of the affidavit and the grounds for each objections. A motion asserting only a general challenge to an affidavit will be ineffective.").

In particular, Rule 56 requires that affidavits or declarations used to support (or oppose) a motion for summary [*13]  judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Generally, courts consider these requirements compulsory. See, e.g., Oglesby v. Terminal Transp. Co., Inc., 543 F.2d 1111, 1112 (5th Cir. 1976) ("Fed.R.Civ.P. 56(c) & (e) make it plain that neither an offer to prove suspicions at trial nor unsworn responsive statements suffice to create disputed issues of material fact which justify a trial. Oglesby never suggested that reasons existed which made a proper affidavit response impossible."); United States v. Hangar One, Inc., 563 F.2d 1155, 1157 (5th Cir. 1977) (finding that the Rule 56 competency requirement applies to the affidavit, itself, not the statements contained within). Indeed, courts reject summary judgment affidavits that "set forth 'ultimate or conclusory facts and conclusions of law[,]'" Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985), namely those that fail to provide "'specific facts showing a genuine issue for trial[,]'" rather than "'[c]onclusional allegations and . . . unsubstantiated assertions,'" Edwards Family P'ship, L.P. v. Dickson, 821 F.3d 614, 619 (5th Cir. 2016) (quoting TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)). See also Travelers Ins. Co v. Liljeberge Enters., Inc., 7 F.3d 1203, 1206-07 (5th Cir. 1993) (applying requirement to non-movant's proffered evidence). Nevertheless, "the papers of a party opposing summary judgment are usually held to a less exacting standard than those of the moving party." Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987) ("In previous cases we have accepted evidence [*14]  from the party opposing summary judgment despite its failure to meet the technical requirements of rule 56(e)."); see also Jackson v. Mississippi, 644 F.2d 1142, 1144 (5th Cir. 1981) ("Summary judgment is not, however, an automatic sanction for non-compliance with Rule 56(e). A movant must establish the propriety of relief by the strengths of his own showing, not by the defects in his opponent's showing."). But where "an affidavit or declaration under [Rule 56] is submitted in bad faith or solely for delay," a court may levy certain sanctions on the offending party. Fed. R. Civ. P. 56(h).

II. Plaintiff's "Sham" Affidavit

Defendants assert the Court should strike the "Daniels Sworn Statement" (at Dkt. 31-2) (hereinafter "Plaintiff's Affidavit") under the sham-affidavit rule [Dkt. 45]. Defendants point to three discrepancies between Plaintiff's Affidavit and Plaintiff's prior deposition testimony in support of their position that Plaintiff's Affidavit constitutes a sham affidavit. Id. at 2-4. Meanwhile, Plaintiff contends Defendants misapply the sham affidavit rule, construing it too strictly and arguing, in any event, that none of the three purported discrepancies establishes that Plaintiff's Affidavit constitutes a sham under the rule [Dkt. 47]. In this instance, the Court largely agrees with Plaintiff. [*15]

Consider in Doe ex rel. Doe v. Dallas Independent School District, the Fifth Circuit upheld a district court's ruling that a plaintiff had failed to create a genuine issue of material fact in producing an affidavit that directly contradicted the plaintiff's earlier deposition testimony. 220 F.3d 380, 385-87 (2000). The plaintiff-appellant asserted he had provided his school principal with actual notice that he (the plaintiff) had been sexually molested by a teacher. Id. at 385. The district court, considering the plaintiff's 1988 affidavit stating the plaintiff had provided actual notice to the principal, the plaintiff's 1996 "unequivocal" testimony to the contrary, and the plaintiff's 1999 affidavit asserting the accuracy of the 1988 affidavit, decided to discount the "1999 affidavit as a subsequent affidavit contradicting prior testimony without explanation." Id. at 383. The Fifth Circuit observed that the plaintiff did not allege he "was not represented by counsel at the 1996 deposition" and that his "testimony was unequivocal" on the actual notice issue, though he had "responded to certain [other] questions by stating that he could not answer because he did not recall what had happened." Id. at 386. In light of these facts, and in keeping [*16]  with the "holding that a plaintiff may not manufacture a genuine issue of material fact by submitting an affidavit that impeaches prior testimony without explanation[,]" the Doe Court determined that the district court had duly disregarded the 1999 affidavit as a sham. Id. at 386-87.

Critically, the Fifth Circuit noted in Doe that "courts should scrutinize conflicts between affidavit and deposition testimony and only grant summary judgment when those conflicts raise . . . sham issues." Id. at 386 (examining Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983)). The Fifth Circuit's inquiry thus sought to preserve "'the utility of summary judgment as a procedure for screening out sham issues of fact[,]'" not to prescribe a rigid rule for rejecting any inconsistent testimony or averments. Id. (quoting Perma Res. & Dev. Co. v. Singer Co., 410 F.2d 572, 278 (2d Cir. 1969)); see also Dibidale of La., Inc. v. Am. Bank & Trust Co., New Orleans, 916 F.2d 300, 307-08 (5th Cir. 1990), amended and reinstated on reh'g, 941 F.2d 308 (5th Cir. 1991) ("In reviewing a motion for summary judgment the court must consider all of the evidence before it, including affidavits that conflict with deposition testimony. A genuine issue of material fact may be raised by such an affidavit even if it conflicts with earlier testimony in the party's deposition." (internal quotations omitted)). Indeed, courts both before and after Doe have held that inconsistencies between prior [*17]  and subsequent testimony (or between different witnesses' testimony) do not necessarily indicate a sham, particularly where the inconsistency implicates the affiant/deponent's credibility. See, e.g., Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 806-07 (E.D. La. 2011) ("Even if the sham affidavit doctrine were applicable, the inconsistencies between [the] deposition testimony and [the] affidavit would not justify striking the affidavit. Not every discrepancy between an affidavit and prior deposition testimony indicates a sham." (internal quotations omitted)); Lopez Hernandez v. Fincher, No. Civ.A. 3:04-CV-1084-G, 2005 WL 265214, at *10 (N.D. Tex. Feb. 2, 2005) ("While any inconsistency may affect the weight given the testimony by the factfinder, it is not grounds for striking the testimony. It is not unusual for multiple witnesses' recollection of a single event to vary somewhat."); Dibidale, 916 F.2d at 307-08 ("To the extent they exist, discrepancies in [earlier and later] averments present credibility issues properly put to the trier-of-fact. . . . Credibility assessments are not fit grist for the summary judgment mill." (citing Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980))).

Here, Defendants identify three purported discrepancies between Plaintiff's deposition (taken July 7, 2016) and Plaintiff's Affidavit (made August 26, 2016) that, Defendants contend, merit striking [*18]  Plaintiff's Affidavit [Dkt. 45].


The Court agrees with Defendants that Plaintiff's representation in Plaintiff's Affidavit presents an inconsistency. Defendants' counsel first asked Plaintiff "who in your hearing at the Sherman Yard used the word 'nigger'?", to which Plaintiff responded, "Except for Tyson told that, [*23]  you know, they use it out there in engineering" [Dkt. 45-1 at 129:14-17]. Further, when asked "Did you ever hear that [term] used in your presence?", Plaintiff replied "Not in my presence, no." Id. at 129:18-20. Unlike the purported discrepancies discussed supra, here Plaintiff neither equivocated nor answered that he could not recall: he answered the questions directly and in the negative. Nevertheless, "[n]ot every discrepancy between an affidavit and prior deposition testimony indicates a sham." Wagoner, 813 F. Supp. 2d at 806-07. In light of Defendants' own business records (submitted by Plaintiff as summary judgment evidence),8 which corroborate Plaintiff's Affidavit by demonstrating that other employees had heard (and reported) the word "nigger" had been in the Sherman Yard, this discrepancy amounts to nothing more than a credibility issue on Plaintiff's part. See Lopez Hernandez, 2005 WL 265214, at *10; Dibidale, 916 F.2d at 307-08. The Court finds that the second discrepancy provides no support for striking entirety of Plaintiff's Affidavit. In light of the foregoing, the Court DENIES Defendants' Motion to Strike Plaintiff's Affidavit as "Sham Affidavit" [Dkt. 45].

8   Plaintiff cites Dkt. 31-10 at 6-21, to show that Plaintiff's Affidavit is otherwise supported by the record in this regard. Defendants present two objections to these records: (1) the statements therein are unsworn and unverified and, therefore, constitute inadmissible hearsay, and (2) the allegations contained therein are time-barred [Dkt. 44 at 9]. Plaintiff responds that Defendants "produced [these records] in discovery" and that the records constitute business records excepted from the rule against hearsay [Dkt. 61 at 5]. The records contain an assortment of handwritten and typed witness statements from January 2001 concerning Shearin's use of the word "nigger" while at work [see Dkt. 31-10 at 6-21]. Affixed at the bottom of each page is the tag "DANIELS-TXDOT" with six-digit number following. Id. Preceding the cited pages is a TxDOT Human Resources Memorandum dated February 1, 2001, that also is affixed with the aforementioned tag and which reflects that the pages complained of were attachments to the TxDOT-generated memo. Id. at 2. Whether or not these records constitute business records under Rule 801(d), they qualify as admissions of a party opponent under the same rule. See BP Expl. & Prod., Inc. v. Cashman Equip. Corp., No. Civ.A. H-13-3046, 2016 WL 1387907, at *16 (S.D. Tex. Apr. 8, 2016) ("[T]he documents challenged by Defendants that were produced in response to discovery requests, such as the emails, are admissible as admissions of a party opponent and/or as business records under the Rule 801(d)[.] . . ."). Under Federal Rule of Evidence 801(d), then, these statements are "not hearsay." See also Fed. R. Evid. 805 (regarding multiple hearsay). Moreover, Courts consider evidence or statements in an affidavit tied to a barred or unpursued claim where that evidence is relevant, as such evidence "may still constitute relevant background evidence in proceeding[s] in which the . . . practice is at issue[.]" Rutherford, 197 F.3d at 186 (citing Evans, 431 U.S. at 558). Accordingly, the Court overrules Defendants' objections to Dkt. 31-10.

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