Eubanks v. Henry Cnty.

KIMBERLY EUBANKS, Plaintiff, v. HENRY COUNTY, GEORGIA, Defendant.

CIVIL ACTION FILE NO. 1:11-CV-3969-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Dated: March 31, 2014

ORDER AND OPINION¹

In this action, Plaintiff Kimberly Eubanks raises claims against Defendant Henry County, Georgia for gender discrimination pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"). Defendant has moved for summary judgment, [Doc. 66]; and Plaintiff has moved for leave to file a sur-reply, [Doc. 112], and filed a construed motion to strike two exhibits referred to by Defendant, [Doc. 113]. For the reasons herein, the Court DENIES the motion for leave to file a sur-reply, [Doc. 112]; DENIES the construed motion to strike, [Doc. 113], but does not rely on the three statements at issue; and GRANTS the motion for summary judgment,[Doc. 66].

I. Motion for Leave to File Sur-Reply, [Doc. 112]

Plaintiff requests leave to file a sur-reply brief because she contends that Defendant has (1) offered new legal arguments, (2) argued that Plaintiff's counsel has misrepresented deponent Angie Bailey's testimony to the Court, and (3) misstated facts. [Doc. 112 at 1]. Defendant responds that Plaintiff's proposed sur-reply brief responds to arguments that were either articulated in Defendant's principal brief or were in direct response to argument articulated by Plaintiff in opposition. [Doc. 115 at 3].

Courts in this District typically exercise their discretion to allow a party to file a sur-reply brief "in unusual circumstances, such as where a movant raises new arguments or facts in a reply brief, or where a party wishes to inform the Court of a new decision or rule implicating the motion under review." Stephens v. Trust for Public Land, 475 F. Supp. 2d 1299, 1303 (N.D. Ga. 2007) (Story, J.). Otherwise, "[t]o allow such surreplies as a regular practice would put the court in the position of refereeing an endless volley of briefs." Fredrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005) (Duffey, J.) (quoting Garrison v. Northeast Georgia Med. Ctr., Inc., 66 F. Supp. 2d 1336, 1340 (N.D. Ga. 1999) (O'Kelley, J.)). Because it appears tothe Court that Defendant's reply brief addresses arguments in its own initial brief and/or raised by Plaintiff in her response, the Court DENIES the motion to file a sur-reply.

II. Construed Motion to Strike, [Doc. 113]

Plaintiff has filed a document entitled "Evidentiary Objections to Exhibit I and Document 62." [Doc. 113]. She requests that the exhibits be deemed inadmissible and that all statements and arguments associated with them be stricken from the record; the Clerk of Court has construed Plaintiff's evidentiary objections as a motion to strike. [Id. at 4]. Plaintiff objects to Defendant's references to Exhibit I and Document 62 in its reply brief in support of summary judgment; she contends these documents are inadmissible evidence and cannot be cited as support for any arguments in the reply. [Id. at 1]. Exhibit I is a letter from Plaintiff's counsel to the Court, regarding a discovery dispute. [Doc. 109-1; see also Doc. 57 (Minute Entry for Discovery Telephone Conference)]. In that letter, Plaintiff states that an email from Building Department Head Bert Foster was "extremely significant," and she argues that she is entitled to certain documents she is seeking because they are responsive to a discovery request for documents "relating to the employment or treatment of similarly situated individuals to Plaintiff." [Doc. 109-1 at 2, 4]. Document 62 is Plaintiff'sresponse to a motion for protective order by Defendant, regarding the continuation of the deposition of Mr. Foster. [Doc. 62]. Therein, Plaintiff states that Mr. Foster is a "key witness." [Doc. 62 at 3].

Plaintiff contends that Exhibit I and Document 62 are inadmissible as evidence because they were drafted by Plaintiff's counsel as an advocate for Plaintiff. [Doc. 113 at 2]. She also argues that the documents are hearsay. [Id. at 2 n.1]. Defendant argues that an attorney's statements to a court are evidence when tendered by an adverse party, and it contends that the statements are not hearsay under Federal Rule of Evidence 801(d)(2)(D), which concerns admissions of a party's agent. [Doc. 114 at 2-4].

The Court notes that Defendant has not asserted that Plaintiff's statements constitute binding judicial admissions, but instead claims that the statements are admissions by a party, which at least one court has deemed "garden-variety" admissions. See Chaffee v. Kraft General Foods, Inc., 886 F. Supp. 1164, 1168 (D.N.J. 1995) ("The latter variety of admissions (as opposed to judicial admissions) consists of statements made by a party, or his agent, which are admissible against the party, for example, to point out inconsistencies in testimony to the trier of fact.") (citations omitted)); see also Abrams v. Ciba Specialty Chems. Corp., 663 F. Supp. 2d 1243, 1249n.14 (S.D. Ala. 2009) (discussing the doctrine of judicial admission and citing cases for the proposition that statements in briefs may be treated as binding judicial admissions of fact).² Judicial admissions are not evidence, but have the effect of withdrawing a fact from contention; evidentiary admissions, on the other hand, may be controverted or explained by the party. See Keller v. United States, 58 F.3d 1194, 1199 n.8 (7^th Cir. 1995) (citation omitted)). The significance of an admission by a party's agent "is for the trier of fact to determine." Chaffee, 886 F. Supp. at 1168.

The Court has considered Plaintiff's reasons for requesting that the exhibits be deemed inadmissible and finds that Plaintiff's arguments are misplaced. See, e.g., Structural Polymer Group, Ltd. v. Zoltek Corp., 543 F.3d 987, 996 (8^th Cir. 2008) ("A statement by a party's attorney can be admissible as an admission by a party opponent if it is relevant."). Plaintiff relies upon Duke v. Atria, Inc., No. 2:03-cv-934-DRB, 2005 WL 1514149, at *2 (M.D. Ala., June 27, 2005), for the proposition that "advocacy is not evidence and briefs cannot substitute for affidavits and other admissible evidence to defeat a motion for summary judgment . . . ." However, asDefendant points out, Plaintiff has failed to acknowledge the context of this statement, which was prompted by a party's attempt to exclude the opposing party's brief by making vague references without citation to specific records, documents, or other items offered by the opposing party as evidence. See id. Thus, this case is inapplicable here.

Moreover, Plaintiff has not cited a procedural rule providing for striking the statements and arguments. The Federal Rules of Civil Procedure provide that a "court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "Rule 12(f) applies only to matters within the pleadings[.]" Jordan v. Cobb County, Ga., 227 F. Supp. 2d 1322, 1346 (N.D. Ga. 2001) (Carnes, J.). Pleadings include complaints, answers, replies to counterclaims, answers to cross-claims, third-party complaints, and third-party answers. See Fed. R. Civ. P. 7(a); 2 James Wm. Moore, et al., Moore's Federal Practice § 12.37(2) (3d ed. 1999) ("Only material included in a 'pleading' may be subject of a motion to strike . . . . Motions, briefs or memoranda, objections, or affidavits may not be attacked by the motion to strike.").

Even so, the Court is not persuaded that the statements at issue carry the significance that Defendant imputes. The Court has reviewed the statements and the documents in which they appear, and it has considered the context for the statementsthat Plaintiff provides in support of her motion. [Doc. 113 at 2-4]. See Structural Polymer Group, 543 F.3d at 996 (discussing the district court's consideration of the context of an attorney's statement and finding no abuse of discretion where court allowed admission of statement made by attorney at a preliminary injunction hearing). The Court observes that the statements describing the estimated importance of the witness and his email were made in the midst of discovery when facts were in the process of taking shape. The same is true of the statement regarding the document request for items related to similarly situated individuals, and that statement also is more a legal conclusion than an evidentiary admission. See Kawasaki Kisen Kaisha, Ltd. v. Plano Molding Co., No. 07 C 5675, 2013 WL 3791609, at *4 (N.D. Ill. July 19, 2013) (declining to accept a statement as an evidentiary admission of a party's agent pursuant to Rule 801(d)(2)(D), in part because the statement as to contract interpretation was more "in the nature of a legal conclusion"). The Court concludes that the statements are evidentiary admissions but declines to rely on the statements.

For these reasons, the Court DENIES Plaintiff's construed motion to strike the exhibits, [Doc. 113], but it will not rely on the three statements at issue (i.e., that the email from Mr. Foster was "extremely significant," that he himself was a "keywitness," or that the documents referred to in Plaintiff's letter to the Court necessarily signify that a particular person is similarly situated to Plaintiff).

III. Motion for Summary Judgment, [Doc. 66]

A. Facts

As required when considering a motion for summary judgment, the Court has viewed the evidence and factual inferences in the light most favorable to Plaintiff, the nonmoving party. See United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11^th Cir. 1991) (en banc). To the extent that material facts are in dispute, the Court has resolved the disputes in Plaintiff's favor. See Vaughan v. Cox, 343 F.3d 1323, 1326 n.1 (11^th Cir. 2003). The facts of the case, for the purpose of adjudicating Defendant's motion for summary judgment, are therefore as follows.³

Plaintiff was initially hired by Henry County in July 2000 as a Residential Inspector. (...