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Tanner v. BD LaPlace, LLC

United States District Court, E.D. Louisiana

March 27, 2019




         Before the Court is the defendant's motion for summary judgment pursuant to Rule 56 and the plaintiff's motion to strike. For the following reasons, the motion to strike is DENIED and the motion for summary judgment is GRANTED.


         Paul Tanner claims that his former employer violated the Americans with Disabilities Act when it mandated that he undergo a medical evaluation as a condition of continued employment; he refused.[1]

         BD LaPlace, LLC is an industrial steel manufacturer based in LaPlace, Louisiana. BD LaPlace uses several cranes to unload, sort, and load scrap metal for transfer, often in close proximity to one another. Paul Tanner was employed at BD LaPlace as a crane operator from 2006 until early March 2016, and was a member of the United Steel Workers Union (“Union”).

         In early 2016, BD LaPlace's Human Resource Manager, Kristen Barney, received several complaints of Tanner's erratic workplace behavior and initiated an investigation. BD LaPlace's investigation confirmed that coworkers had similar concerns regarding Tanner's behavior and workplace safety; the coworker concerns included instances where Tanner prayed aloud for people at work, threw rosary beads at a worker, told a supervisor “you're not my boss” in response to a request to wear a safety vest, told a coworker he would get him arrested if he didn't turn off his music and slapped the coworker's hand down during the confrontation, and that Tanner operated his crane too close to other cranes.

         Ms. Barney met with BD LaPlace management and with Union representatives. With the Union's support, Ms. Barney and BD LaPlace referred Tanner to the Employee Assistance Program (“EAP”) to undergo a mandatory “fitness for duty evaluation” (“FFDE”), [2] which would include a mental and physical evaluation. Tanner was then informed of the complaints against him, that he would be placed on paid leave pending his referral to the EAP, and that he must submit to a mandatory FFDE to be administered by a mental health professional. Ultimately, Tanner refused to submit to the FFDE.[3] BD LaPlace determined that Tanner had abandoned his job and processed this as a voluntary resignation, effective on March 4, 2016.

         In late April 2016, nearly two months after Tanner's discharge, Tanner received a check from BD LaPlace for $1, 000. Around the same time, BD LaPlace issued ratification bonuses to all current employees as of April 4, 2016. BD LaPlace, noting that the check was issued by mistake to Tanner and other former employees, placed a stop payment on the $1, 000 check.

         On September 26, 2016, Tanner filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging that BD LaPlace discriminated against him on the basis of disability and he was terminated because he failed to submit to the FFDE. Tanner affirms in his filing with the EEOC that he does not have a disability, stating “I do not have a disability but employer fired me for refusing to submit to a medical examination (both physical and mental) without cause or concern.”

         On May 1, 2017, seven months after the EEOC complaint, Tanner applied for Social Security benefits in which he claimed that he became disabled on March 1, 2016. In related filings with the Social Security Administration (SSA), Tanner submits that a neck injury, ankle injury, and tissue damage cause him pain, he stopped working on March 1, 2016, and the reason he stopped working is due to his medical conditions. Tanner affirmed that all information in connection with his claim for benefits was true and he understood that making false statements or representations was a criminal offense. Then, on October 9, 2017, the SSA found that Tanner was, in fact, disabled and, under its rules, backdated his disability to February 10, 2016 - one month prior to his refusal to submit to the FFDE.

         On May 23, 2017, Tanner sued BD LaPlace alleging that forcing him to submit to the FFDE to continue employment violated the Americans with Disabilities Act (“ADA”). He also alleges claims for retaliation and disability discrimination under the ADA and for unpaid wages under the Louisiana Wage Payment Act. He seeks back pay, front pay, bonus payments, attorney's fees, and $100, 000 in emotional stress.

         The defendant now moves for summary judgment and the plaintiff moves to strike five of the defendant's exhibits as inadmissible.


         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No. genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). “[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted). Ultimately, “[i]f the evidence is merely colorable ... or is not significantly probative, ” summary judgment is appropriate. Id. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must “resolve factual controversies in favor of the nonmoving party, ” it must do so “only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation marks and citation omitted).

         In resolving a motion for summary judgment, the Court "may only consider admissible evidence." Coleman v. Jason Pharmaceuticals, 540 Fed.Appx. 302, 306 (5th Cir. 2013)(citing Fed.R.Civ.P. 56(c)(2) and Mersch v. City of Dallas, 207 F.3d 732, 734-35 (5th Cir. 2000)). Federal Rule of Evidence 56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Affidavits and declarations used to support a motion must only “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).


         Tanner seeks to narrow the scope of the summary judgment record, urging the Court to strike the following exhibits: 1, the Declaration of Kristin Barney, BD LaPlace's Human Resource Manager; 1A, Criteria for Crane Operator; 1B, contemporaneous notes of BD LaPlace's investigation; 1D, EAP application; and, 1E, BD LaPlace's and the Union's Collective Bargaining Agreement. Tanner argues that these exhibits contain inadmissible hearsay or that they lack authentication and, therefore, are not competent evidence for purposes of summary judgment. The defendant counters that Tanner's generic and conclusory challenge is improper and that, even if parsed, each item of evidence is admissible and authenticated. The Court agrees.

         Tanner characterizes Exhibit 1 as hearsay, yet declines to specify which paragraphs constitute hearsay, nor explain why. The generic intonation of the Rules of Evidence coupled with the words “hearsay” and “not authenticated” offer mere conclusory challenges to evidence. It is not this Court's duty to parse and infer what the plaintiff intends to strike. See Hoffman v. Bailey, 257 F.Supp.3d 801, 825 (E.D. La. 2017). The Court declines to examine each paragraph of Ms. Barney's declaration to determine the merit, if any, of Tanner's wholesale objection. Nor will the Court belabor itself by making arguments on Mr. Tanner's behalf when his counsel has failed even to suggest that the evidence he purports to challenge cannot be presented in a form that would be admissible in evidence consistent with Rule 56(c)(2). Tanner's motion to strike Exhibit 1 has no merit.

         Tanner's objections to the other exhibits are equally vague and unsupported. Tanner asserts that Exhibits 1A, 1B, 1D, and 1E lack necessary information that would show that the exhibits apply to Tanner's employment. Under Federal Rule of Evidence 803(6), records ...

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