Moore v. Nissan North America, Inc.

ALEXANDER E. MOORE PLAINTIFF

v.NISSAN NORTH AMERICA, INC. DEFENDANT

CIVIL ACTION NO. 3:10-cv-569-DPJ-FKB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION

Dated: July 5, 2012

ORDER

This employment-discrimination case is before the Court on the motion of Defendant Nissan North America, Inc. ("Nissan") for Summary Judgment [49] pursuant to Federal Rule of Civil Procedure 56 and its Motion to Strike the EEOC Determination from the Summary Judgment Record [57]. Plaintiff Alexander E. Moore opposes both motions [53, 59]. Although the Court is sympathetic to Mr. Moore's plight and finds Nissan's behavior less than exemplary, Nissan is entitled to summary judgment because Mr. Moore has failed to create a question of fact regarding his ability to perform the essential functions of his employment even with reasonable accommodations.

I. Facts and Procedural History

The following facts are undisputed. Moore began working at Nissan's Canton, Mississippi, facility in January 2003, in the Paint Department in Paint System 1. Moore worked as a Production Technician in both the "Repaint/Prep Booth" and the "Double-Clear Booth" inspecting vehicle exteriors for defects in the paint or the "double-clear" finishing coat and repairing the same. Moore worked without incident until 2007 when he showed the first signs of multiple sclerosis ("MS"). After that, he suffered weakness in his legs and incidents ofbuckling. Nissan placed Moore on leave in May 2008 and then terminated his employment when the leave expired in June 2009.

Moore received a Notice of Right to Sue from the EEOC and filed the instant action on October 14, 2010, alleging Nissan discriminated against him in violation of the Americans with Disabilities Act ("ADA") when it terminated his employment without providing a reasonable accommodation or engaging in an interactive process to determine whether Moore could be accommodated, and by retaliating against Moore for enforcing his right to reasonable accommodation under the ADA. See Compl. [1] ¶¶ 20-26. 20-26. Moore brings a second cause of action for intentional infliction of emotional distress and seeks punitive damages. Id. ¶¶ 27-31. Nissan filed a Motion for Summary Judgment on Moore's claims [49], which Moore opposed [53]. The Court has personal and subject matter jurisdiction and is prepared to rule.

II. Summary Judgment Standard

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. Thenonmoving party must then "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citation omitted). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when ... both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. When such contradictory facts exist, the court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

III. Analysis

A. Nissan's Motion to Strike EEOC Determination

The Court addresses as a preliminary issue Nissan's Motion to Strike the EEOC Determination from the summary-judgment record. Moore submitted a letter from the EEOC dated September 17, 2009, summarizing its "determination" that "evidence obtained in the [EEOC's] investigation established reasonable cause to believe that [Moore] was discriminated against in violation of the Americans with Disabilities Act of 1990." Pl.'s Resp. [53] Ex. 7. Consideration of the admissibility of an EEOC determination letter in the context of a summary judgment motion is rare. Chavarria v. Despachos Del Notre, Inc., 390 F. Supp. 2d 591, 598 n.9 (S.D. Tex. 2005); Bynum v. Ft. Worth Indep. Sch. Dist., 41 F. Supp. 2d 641, 657 (N.D. Tex. 1999). Nevertheless, when evaluating a motion for summary judgment, the Court may consider only evidence which would be admissible at trial. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.1995). Therefore the Court undertakes to determine whether the EEOC letter constitutes admissible evidence proper for inclusion in the summary judgment record.

1. Rule 803(8)©¹

Nissan first seeks to exclude the letter for failure to satisfy the trustworthiness requirement of Federal Rule of Evidence 803(8)©. Though hearsay is generally inadmissible, Rule 803(8)© creates a rebuttable presumption that reports of public offices or agencies setting forth "factual findings resulting from an investigation made pursuant to authority granted by law," are admissible "unless the sources of information or other circumstances indicate lack of trustworthiness." Fed. R. Evid. 803(8)©; Eason v. Fleming Cos., No. 92-1390, 1993 WL 13015208, at *3 (5th Cir. Aug. 24, 1993). Thus, the party opposing admissibility must demonstrate its lack of trustworthiness. Cortes v. Maxus Exploration Co., 977 F.2d 195, 202 (5th Cir. 1992); Eason, 1993 WL 13015208, at *3. The trustworthiness inquiry focuses on whether reliable methods were used in creating the report rather than on its findings and conclusions. Eason, 1993 WL 13015208, at *3. "[G]eneral complaints that the report is incomplete or inaccurate go to the weight afforded the report rather than to its admissibility." Id.

Nissan argues the EEOC letter is not reliable or trustworthy because it contains "conclusory findings" without providing record cites or explaining the investigator's findings. Def.'s Mot. [58] at 4; Rebuttal [61] at 1. Nissan complains that the investigator reviewed onlyNissan's written response, failed to interview any Nissan witness, and made no effort to evaluate the impact of Moore's physical limitations on his ability to perform the job. Rebuttal [61] at 1-2. The Court finds Nissan's complaints go to the letter's findings and completeness. Eason, 1993 WL 13015208, at *3 (finding arguments concerning evidence not submitted to EEOC and interviews not conducted bear on the determination's completeness rather than its trustworthiness) (citing Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1307 (5th Cir. 1991)). Nissan fails to rebut the presumption that the EEOC letter is admissible under Rule 803(8)(C).

2. Rule 403

Nissan also argues that the EEOC letter is inadmissible pursuant to Rule 403. Rule 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of. . . unfair prejudice, confusion of the issues, or misleading the jury. . . ." Fed. R. Evid. 403. The Fifth Circuit has held that investigative reports and files of the EEOC can be "highly probative" and "the balancing test of Rule 403 should not be misused in such a way that 'would end the presumption that evaluative reports are admissible hearsay under Rule 803(8)(C).'" Cortes, 977 F.2d at 201 (citations omitted); McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 400 (5th Cir. 1985) ("EEOC determinations and findings of fact, although not binding on the trier of fact, are admissible as evidence in civil proceedings as probative of a claim of employment discrimination. . . ."). Even so, the Court retains discretion to exclude these reports when it finds the Rule 403 balance tips in favor of exclusion. Cortes, 977 F.2d at 201-02. While a determination that summarizes evidence in the record may be admissible where it is fully supported by the record, Eason, 1993 WL 13015208, at *4, conclusory determinations,unlike detailed evidentiary statements and findings of fact, can be unfairly prejudicial. Cortes, 977 F.2d at 202 (excluding determination).

Here, many factual assertions included in the letter are supported by the record; however, most of these findings are superficial and generally undisputed. For example, the parties do not dispute the investigator's findings that Moore has MS, that he suffers from leg weakness, that he requested an accommodation, or that he was put on short-term disability and his employment eventually terminated. But the letter fails to make detailed factual findings concerning Moore's limitations or the requirements of his position at Nissan. As a result, the investigator makes key legal determinations without explaining the basis for them—specifically, that Moore could "perform the essential functions of his job (paint technician) with a reasonable accommodation" and that Nissan terminated Moore's employment "because of his disability and failed to provide a reasonable accommodation to [Moore]." See Pl.'s Resp. [53] Ex. 7. These are the central issues of the case. Omitting the particular evidence on which these findings are based diminishes the letter's probative value.

Another issue affecting the letter's probative value concerns the timing of the investigation. Moore filed the EEOC charge in May 2008, and though it appears the investigator knew Moore's employment...