United States District Court, E.D. Louisiana
ANDERSON WALLACE, JR.
MAGNOLIA FAMILY SERVICES, L.L.C., DIVISION
DANIEL E. KNOWLES, III, District Judge.
Before the Court are four motions: (1) the Motion for Summary Judgment [Doc. #89] filed by defendant Magnolia Family Services, L.L.C. ("Magnolia" or "defendant"); (2) the Motion for Summary Judgment [Doc. #95] filed by plaintiff Anderson Wallace, Jr.; (3) the Motion to Suppress Defendant's Exhibit "A" as Evidence to Be Used for Summary Judgment [Doc. #102]; and (4) the Motion to Proffer the Recorded Deposition of Anderson Wallace, Jr. of September 25, 2014 as Evidence for Summary Judgment [Doc. #103]. All of the motions are opposed. Having reviewed the motions, the oppositions, and the case law, the Court rules as follows.
Pro se plaintiff, Anderson Wallace, Jr., filed this complaint against his employer Magnolia, in which Terrebonne Parish School Board is an alleged stakeholder. Wallace works as a counselor for children with Attention Deficit Hyperactivity Disorder. Wallace is a recovering user of narcotics who has been drug-free for many years. Wallace alleges that Magnolia has an employment practice or policy that operates to exclude African-Americans with criminal backgrounds from continued employment with it. Wallace maintains that Magnolia wrongfully discharged him after he was charged in a domestic-violence incident that was subsequently refused by the Thirty-Second Judicial District Attorney's Office.
Wallace now sues defendant for race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (a disparate-impact claim). Wallace also sued under the Americans with Disabilities Act ("ADA") because Magnolia allegedly factored his past drug use into his discharge. He also sued under Louisiana Civil Code article 2315. Magistrate Judge Wilkinson dismissed these last two claims for failure to exhaust and failure to amend, respectively. Thus, the only claim that remains is Wallace's disparate-impact claim.
II. The Motion to Suppress
Wallace seeks to suppress (strike) Exhibit "A" to Magnolia's motion for summary judgment. Exhibit "A" consists of excerpts from Wallace's September 25, 2014 deposition. Wallace seeks to strike the evidence because Magnolia failed to include the witness certificate and errata sheet that he signed. Wallace made two corrections to his deposition, none of which is on a page that Magnolia cited to in its Exhibit "A." The innocuous changes that Wallace made thus have no bearing on this Court's consideration of the motions for summary judgment. The motion [Doc. #102] is therefore denied.
III. The Motion to Proffer
Wallace recorded his own deposition on September 25, 2014 and seeks to proffer the entire deposition as support for his motion for summary judgment. Magnolia opposes the motion on the ground that a private recording is not authenticated.
It is well-settled that "[t]o be admissible [as summary judgment evidence], documents must be authenticated by and attached to an affidavit that meets the requirements of [Federal Rule of Civil Procedure] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2722, at 59-60 (3d ed. 2007) (footnotes omitted). A document that lacks a proper foundation to authenticate it can not be used to support a motion for summary judgment." Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542 (9th Cir. 1989). When offered at summary judgment, deposition excerpts must identify the names of the deponent and the action and must include the reporter's certification that the deposition is a true record of the testimony of the deponent. Chao v. Westside Drywall, Inc., 709 F.Supp.2d 1037, 1051 (D. Or. 2010) (citing Orr v. Bank of America, NY & SA, 285 F.3d 764, 774 (9th Cir. 2002). There is no authentication of Wallace's private recording of his deposition. Accordingly, the motion is denied.
III. The Motions for Summary Judgment
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in [his] favor." Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not rest upon the pleadings, but must ...