Lewis v. Eye Care Surgery Ctr.

1

JOHNNIE LEWIS v. EYE CARE SURGERY CENTER, INC.

Civil Action No. 21-475-SDD-RLB

United States District Court, M.D. Louisiana

December 22, 2023

RULING

SHELLY D. DICK CHIEF DISTRICT JUDGE MIDDLE DISTRICT OF LOUISIANA

This matter is before the Court on the Motion for Summary Judgment^[1] by Defendant, Eye Care Surgery Center Inc. (“Defendant”). Plaintiff, Johnnie Lewis (“Plaintiff”), has filed an Opposition^[2] to this motion, to which Defendant filed a Reply.^[3] For the following reasons, the Court finds that Defendant's motion should be granted.

I. LOCAL RULES AND EVIDENTIARY OBJECTIONS

A. Local Rules - Statements of Fact

Parties are required to comply with the following Local Rules of the Middle District of Louisiana in filing and opposing motions for summary judgment. Local Rule 56(f) provides:

Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted. An assertion of fact set forth in a statement of material facts shall be followed by a citation to the specific page or paragraph of identified record material supporting the assertion. The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts. (emphasis added). Local Rule 56 (c) requires an opposing party to:

submit with its opposition a separate, short, and concise statement of material facts. The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule. Each such statement shall begin with the designation “Admitted,” “Denied,” or “Qualified” and, in the case of an admission, shall end with such designation. The opposing statement may contain in a separately titled section additional facts, each set forth in a separately numbered paragraph and supported by a record citation as required by subsection (f) of this rule. (emphasis added).

Unless otherwise indicated, the Factual Background below is comprised almost entirely of facts admitted or deemed admitted for purposes of this Motion based on Plaintiff's failure to comply with Local Rules 56(c) & (f) of the Middle District of Louisiana. Where Plaintiff failed to cite to record evidence in denying Defendant's statements, submitted legal argument rather than a supported, contradictory factual statement, or cited evidence that does not support Plaintiff's counterstatement, the Defendant's proffered statements of fact are deemed admitted under Rule 56 of the Federal Rules of Civil Procedure and the Local Rules of this Court.

In Plaintiff's Opposing Statement of Material Facts, she admits Defendant's statement Nos. 6, 7, 19, and 20.^[4] However, for Defendant's statement Nos. 1, 2, 10, 11, 16, 17, 18, and 22, Plaintiff simply states “disputed” or “denied,” without reference to any evidence. Plaintiff's Opposition brief contains a scant two citations to evidence, both generally citing to Plaintiff's entire Affidavit.^[5] The Fifth Circuit has instructed:

When evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court. See Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916 (5th Cir. 1992), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.” Ragas, 136 F.3d at 458; [Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996)]; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994); Skotak, 953 F.2d at 916 n. 7; see also Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary “that the entire record in the case ... be searched and found bereft of a genuine issue of material fact before summary judgment may be properly entered”); cf. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs”). Because [Plaintiff] did not identify any evidence of damages in his summary judgment response, the evidence was not properly before the district court and will not be considered here.^[6]

Thus, these statements are deemed admitted unless they are otherwise inadmissible based on Plaintiff's evidentiary challenges.

For several remaining statements, Plaintiff responds with “Denied” and a general reference to Plaintiff's entire 47-paragraph Affidavit. This also fails to comply with the Local Rules and Rule 56 of the Federal Rules of Civil Procedure. A “non-movant must ‘identify specific evidence in the record, and [ ] articulate the “precise manner” in which that evidence support[s] [her] claim.'”^[7] In the absence of proof, the Court will not assume the nonmovant could or would prove the necessary facts, and the mere argued existence of a fact dispute will not defeat a properly supported motion.^[8]

B. Plaintiff's Affidavit/Purported Evidence

Plaintiff's Affidavit presents evidentiary problems. First, it does not state that it is based on her personal knowledge, and it is rife with hearsay and speculation lacking underlying factual support. As this Court has held:

For testimony from an affidavit to be admissible for summary judgment purposes, the affidavit must: 1) be based on personal knowledge, 2) set out facts that would be admissible in evidence, and 3) show that the affiant or declarant is competent to testify on the matters stated. Fed.R.Civ.P. 56(c)(4).

Further, it is not enough to merely state that the affidavit is based on personal knowledge, it must be clear that it is also based on facts alleged in the affidavit. See Bright v. Ashcraft, 259 F.Supp.2d 494, 498 (E.D. La. 2003)(“A declarant must provide evidence to establish that he has personal knowledge of the facts stated.”). Personal knowledge means that the affiant “must have had an opportunity to observe, and must have actually observed the fact.” Ripple v. Marble Falls Indep. Sch. Dist., 99 F.Supp.3d 662, 673 (W.D. Tex. 2015). Finally, “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence.” Walker v. SBC Servs., Inc., 375 F.Supp.2d 524, 535 (N.D. Tex. 2005). Any statements that violate the rule[s] may “not [be] considered for summary judgment purposes; any portions of the declarations that are not struck remain part of the summary judgment record.” Ripple v. Marble Falls Indep. Sch. Dist., 99 F.Supp.3d 662, 673 (W.D. Tex. 2015).^[9]

Plaintiff makes several attestations for which there is no foundation of her personal knowledge for the offered facts. For example, Plaintiff attests she was passed over for promotions, for which she was qualified, in favor of co-workers “less qualified than [Plaintiff]” or “less trained in skill and effort”;^[10] she attests that other unidentified employees “were offended and witnessed instances of harassment, retaliation, or discrimination”;^[11] she attests that another African-American employee “indicated to [Plaintiff]” that she signed an affidavit in support of Defendant “to keep her job,” and this employee “expressed concerns about harassment”;^[12] she attests that Defendant employed more than 50 employees during her employment period;^[13] and she attests she was paid less than men employed by Defendant for “substantially the same responsibility.”^[14] Plaintiff offers no context for these statements, no underlying foundation to demonstrate how she obtained personal knowledge to make the statements, and she is not competent to attest to what others experienced, witnessed, or stated.

While summary judgment affidavits need not contain any magic language, the affiant's personal knowledge and competence must be reasonably inferred from their positions and the nature of their participation in the matters to which they swore.^[15] In Russell v. Parkview Baptist School, Inc.,^[16] another Section of this Court noted that,

[T]he Fifth Circuit quoted with approval a Ninth Circuit opinion which “found it proper in the summary judgment context for district courts to rely on affidavits where the affiants' ‘personal knowledge and competence to testify are reasonably inferred from their positions and the nature of their participation in the matters to which they swore.'” Id. (quoting Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990)). Thus, in DIRECTV, the Fifth Circuit declined to strike an affidavit for lack of personal knowledge because it was within the affiant's position-or his “sphere of responsibility”-to be familiar with the investigation discussed in the affidavit, so his knowledge could be “reasonably inferred.” Id. (quoting Hodges v. Exxon Corp., 563 F.Supp. 667, 669-70 (M.D. La. 1983)).

There is nothing before the Court to demonstrate Plaintiff's competence and/or personal knowledge to testify that Defendant's payroll practices result in disparate pay for men and women performing the same jobs. Plaintiff does not describe her job duties in the position of Accounts Payable Manager; thus, the Court cannot infer that access to information such as Defendant's general pay tables, promotion practices, job descriptions/qualifications, or any...