Mitchell v. Zia Park, LLC

842 F.Supp.2d 1316

George P. MITCHELL, Plaintiff,

v.ZIA PARK, LLC, d/b/a Zia Park & Black Gold Casino, and Penn National Gaming, Inc., Defendants.

No. CV 10–1206 WPL/GBW.

United States District Court, D. New Mexico.

Feb. 1, 2012.

Leon Schydlower, El Paso, TX, for Plaintiff.

Julie Fritsch, Whitney Warner, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

WILLIAM P. LYNCH, United States Magistrate Judge.

George P. Mitchell brought this lawsuit against Zia Park, LLC (“Zia Park”) and Penn National Gaming, Inc. (“PNGI”) alleging that he was retaliated against and constructively discharged for statutorily protected conduct in violation of Title VII of the Civil Rights Act and the New Mexico Human Rights Act (“NMHRA”). (Doc. 1.) The parties consented pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b)(2), giving me authority to resolve case dispositive matters. Zia Park and PNGI have filed two dispositive motions, and I have carefully considered the pleadings, the record, and the relevant law.

PNGI filed a motion for summary judgment. (Doc. 49.) The motion asserts that PNGI is a separate entity from Zia Park and that it is not liable under a respondeat superior theory. ( Id.) Mitchell does not contest PNGI's motion. (Doc. 54 at 20.) Thus, PNGI's motion shall be granted without further discussion and PNGI shall be dismissed as a Defendant in this action.

Zia Park also filed a motion for summary judgment, arguing that there is no genuine issue of material fact and that it is entitled to judgment in its favor as a matter of law. (Doc. 48.) Considering the evidence in the light most favorable to Mitchell, R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133, 1142 (10th Cir.2009) (quotation omitted), I conclude that Mitchell has failed to establish a prima facie case of retaliation in violation of Title VII and the NMHRA; therefore, Zia Park is entitled to judgment as a matter of law.

EVIDENTIARY ISSUES

Before discussing the factual background, which requires reference to the evidence supporting the material facts, I must address the numerous evidentiary issues presented by the briefing on Zia Park's motion for summary judgment. Mitchell argues that Zia Park's Exhibits N, O–T, V, X ¹, AA, BB, DD–HH, and JJ–LL are not admissible because they are unauthenticated, contain unsworn statements that do not purport to be based on personal knowledge, and include hearsay without showing that they satisfy the business records exception. ( See Doc. 54 at 10–13.) Zia Park, in turn, contends that Mitchell has relied on inadmissible hearsay and a sham affidavit that is directly contradicted by his sworn deposition testimony in his response to the motion for summary judgment. (Doc. 57 at 1–5.)

Tenth Circuit precedent establishes that courts may only consider uncontested facts and admissible material when ruling on a motion for summary judgment. See Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1210 (10th Cir.2010) (citations omitted). While the form of the evidence produced need not be admissible at trial, “the content or substance of the evidence must be admissible.” Id. (quoting Thomas v. IBM, 48 F.3d 478, 485 (10th Cir.1995)). To explain this requirement, the Johnson Court used the example of evidence presented in an affidavit. Id. In general, an affidavit is not a form of evidence that is admissible at trial; however, in ruling on a motion for summary judgment, a court can consider an affidavit so long as the content discussed in the affidavit would be admissible at trial. Id.

In 2010, the Federal Rule of Civil Procedure governing summary judgment, Rule 56, was overhauled, and a subdivision establishing procedures for supporting factual positions in summary judgment pleadings was added. Fed. R. Civ. P. 56(c) advisory committee's note (2010 Amendments). Part of this new subdivision 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.” Fed.R.Civ.P. 56(c)(2). The Advisory Committee notes further clarify that an objection to cited material functions just as an objection at trial, shifting the burden to the proponent “to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Fed.R.Civ.P. 56(c)(2) advisory committee's note (2010 Amendments). This change and the others made to the Rule were designed to render the procedures for summary judgment “more consistent with those already used in many courts.” Fed.R.Civ.P. 56 advisory committee's note (2010 Amendments).

The Tenth Circuit has not yet had an opportunity to opine on whether the 2010 changes impact the standard for evaluating the admissibility of cited material at the summary judgment stage. A few district courts have discussed the evidentiary effect of the amendments. See, e.g., Gaub v. Prof'l Hosp. Supply, Inc., No. CIV. 1:10–313 WBS, 845 F.Supp.2d 1118, 1127–29, 2012 WL 73302, at *5–6 (D.Idaho Jan. 10, 2012); Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10–cv–1144, 2011 WL 5169384, at *1–2 (W.D.Mich. Oct. 31, 2011); Equal Emp't Opportunity Comm'n v. Mike Hooks, Inc., No. 2:09 CV477, 2011 WL 1807369, at *5–7 (W.D.La. May 11, 2011). In a particularly thorough discussion, a court in the Western District of Michigan described the amendments as “a sea change in summary judgment procedure ...” in at least some respects. Foreword Magazine, Inc., 2011 WL 5169384 at *1. In that case, the court was faced with a motion for summary judgment supported by exhibits that had not been authenticated; after an objection, the moving party replied and attached affidavits attesting to the authenticity of the documents. Id. at *2. The court explained that Rule 56 previously required that all documents be authenticated, but the amendment deleted that requirement and replaced it with “a multi-step process by which a proponent may submit evidence, subject to objection by the opponent and an opportunity for the proponent to either authenticate the document or propose a method ... [for] doing so at trial.” Id. The court overruled the objections at hand, concluding that the moving party used the process explained by the rule to authenticate the documents. Id. at *2–3. However, the court did not consider what would have been required had the party merely proposed a method to authenticate the documents at trial.

Given the dearth of precedent analyzing the post–2010 Rule 56 procedure, I will refer to the general policies underlying summary judgment. Principal purposes of summary judgment include streamlining litigation and saving needless time and expense by isolating and disposing of purely legal issues and factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Farnell v. Albuquerque Publ'g Co., 589 F.2d 497, 502 (10th Cir.1978) (citations omitted). The amendment to Rule 56 recognizes this cost- and time-saving purpose by expressly allowing the court to consider evidence in an inadmissible form so long as the proponent can explain how the evidence will be admissible when subjected to the rigors of trial. However, summary judgment affects important substantive rights of the litigants, and a court cannot glibly grant such a motion. See Mach. Ctr., Inc. v. Anchor Nat'l Life Ins. Co., 434 F.2d 1, 6 (10th Cir.1970). Thus, in response to an objection to summary judgment evidence, the proponent of the evidence cannot merely assert that they will be able to produce evidence in an admissible form; rather, they must thoroughly explain the admissible form that they will introduce at trial. Because of the significant impact of summary judgment, it is unfathomable that Rule 56 would allow a court to consider evidence that may not be admissible at trial.

I conclude that the 2010 amendments to Rule 56 effected no more than a minor change to this circuit's standard for considering evidence on summary judgment. As was true previously, courts can consider evidence that is currently in an inadmissible form. If an objection is made to an exhibit, the proponent of the exhibit has two options. One possibility is to correct the problem leading to the objection. For example, the proponent of a business record offered for the truth of the matter asserted could submit an affidavit from the records custodian that complies with Federal Rule of Evidence 803(6). In the alternative, the proponent can explain how the contents of the exhibit will be submitted at trial so that the information is admissible. Using the same example, the proponent of the business record could explain how each of Federal Rule of Evidence 803(6)'s requirements will be met. While it may seem picayune to require a party to fully explain admissibility, granting summary judgment on the basis of evidence that a party has not demonstrated will be admissible would do a grave injustice to the nonmoving party.

I. Mitchell's Objections

Mitchell objects to Zia Park's exhibits on grounds of hearsay, failure to authenticate, and lack of personal knowledge. Mitchell fails to offer the Court a careful analysis of his objections; instead, he repeats the same objections to several exhibits without differentiation. Zia Park similarly responds to the objections in broad strokes. With respect to the hearsay objections, Zia Park fails to carefully explain the purposes for which each exhibit is offered and, if offered for the truth of the matter asserted, the intricacies of the applicable hearsay exception. Zia Park was in some cases more careful when responding to the authentication objection but often presented overarching responses lacking specific analysis. Rule 56(c)(2) and the explanatory notes clearly place the burden on the proponent of the evidence to explain its admissibility. I will keep this burden in mind as I proceed.

In responding to the objections, Zia Park chose to explain the...