United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
before the Court is Defendant Tempe Union High School
District's (âDefendantâ) Motion for Summary Judgment
(âMotion, â Doc. 57). The Court now rules on the Motion.
September 14, 2018, Defendant filed the pending Motion (Doc.
57). Plaintiffs filed a timely Response (Doc. 62) on November
5, 2018. Defendant then filed a timely Reply on December 3,
2018 (Doc. 69).
operative, seven-count Complaint (Doc. 25) alleges claims for
race- and age-based employment discrimination. (Doc. 25 at
Tammy Lucas (“Plaintiff”) brought this action
against Plaintiff's former employer. (Doc. 25 at 1).
Plaintiff's husband, Paul Lucas, is also listed as a
plaintiff in this case, but only Plaintiff maintained an
employment relationship with Defendant at any relevant time.
(Id.); see supra Part III. The following
facts are either undisputed or recounted in the light most
favorable to the non-moving party.
is a 51-year-old African-American woman. (Defendant's
Statement of Facts (“DSOF”), Doc. 58 ¶ 1;
Plaintiff's Statement of Facts (“PSOF”), Doc.
66 ¶ 1; see also Doc. 62 at 2). Plaintiff began
working as a receptionist at Marcos de Niza High School
(“MDN”) in 2014 under the supervision of the
Assistant Principal, who is Hispanic. (DSOF ¶¶ 2-3,
6; PSOF ¶¶ 2-3, 6). At the time, she was the only
African-American in the front office at MDN. (PSOF at 13).
Plaintiff's contract was renewed for the school years
beginning in 2015 and 2016, but not renewed for the school
year beginning in 2017. (DSOF ¶¶ 8, 44; PSOF
¶¶ 8, 44). Plaintiff initially received
“good” performance evaluations from Defendant,
but Defendant asserts that her performance began to suffer in
2016. (DSOF ¶¶ 10-12; PSOF ¶¶ 10-12).
Defendant states, and Plaintiff disputes, that
Plaintiff's performance suffered because she neglected
her duties of answering the school phone and took personal
calls on her cell phone during business hours. (DSOF ¶
15; PSOF ¶ 15).
March of 2016, Plaintiff applied for a Student Services
position at MDN, but was not selected for the position. (DSOF
¶¶ 24, 27; PSOF ¶¶ 24, 27). Defendant
selected a Hispanic individual over Plaintiff. (DSOF ¶
27; PSOF ¶ 27). Plaintiff states, and Defendant
disputes, that she began facing harassing conduct from her
Hispanic co-workers immediately after she applied for the
Student Services position. (DSOF ¶ 32; PSOF ¶ 32).
Plaintiff lodged complaints with the Assistant Principal and
other superiors regarding the conduct she encountered, which
led to several meetings with superiors. (DSOF ¶¶
33- 35; PSOF ¶¶ 33-35). Plaintiff suffered negative
health events following these meetings and began seeing a
therapist. (PSOF at 19). Plaintiff states that her Hispanic
co-workers continued their harassing behavior, which included
providing false notes about Plaintiff's alleged
misbehavior at work to superiors. (PSOF at 20). Plaintiff
eventually filed an EEOC charge against Defendant on November
22, 2016. (DSOF ¶ 42; see also Doc. 25 at 8).
March of 2017-after Plaintiff filed her EEOC charge-Plaintiff
was placed on a performance improvement plan
(“PIP”), citing continued performance-related
issues. (DSOF ¶ 42; PSOF ¶ 42). Following the end
of that school year, Defendant decided not to renew
Plaintiff's employment contract for the subsequent year.
(DSOF ¶ 44; PSOF ¶ 44).
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“A party asserting that a fact cannot be or is
genuinely disputed must support that assertion by . . .
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits, or declarations, stipulations . . .
admissions, interrogatory answers, or other materials,
” or by “showing that materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Id. 56(c)(1)(A), (B). Thus,
summary judgment is mandated “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 movant bears the burden of demonstrating to the Court the
basis for the motion and the elements of the cause of action
upon which the non-movant will be unable to establish a
genuine issue of material fact. Id. at 323. The
burden then shifts to the non-movant to establish the
existence of material fact. Id. A material fact is
any factual issue that may affect the outcome of the case
under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant
“must do more than simply show that there is some
metaphysical doubt as to the material facts” by
“com[ing] forward with ‘specific facts showing
that there is a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A
dispute about a fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the
non-moving party. Liberty Lobby, Inc., 477 U.S. at
248. The non-movant's bare assertions, standing alone,
are insufficient to create a material issue of fact and
defeat a motion for summary judgment. Id. at 247-48.
However, in the summary judgment context, the Court construes
all disputed facts in the light most favorable to the
non-moving party. Ellison v. Robertson, 357 F.3d
1072, 1075 (9th Cir. 2004).
summary judgment stage, the Court's role is to determine
whether there is a genuine issue available for trial. There
is no issue for trial unless there is sufficient evidence in
favor of the non-moving party for a jury to return a verdict
for the non-moving party. Liberty Lobby, Inc., 477
U.S. at 249-50. “If the evidence is merely colorable,
or is not significantly probative, summary judgment may be
granted.” Id. (citations omitted).
Admissibility of Evidence at the Summary Judgment
previously silent on the issue of admissibility of evidence
at summary judgment, the 2010 revision to Federal Rule of
Civil Procedure (“Federal Rule”) 56 clarified
that “materials cited to support or dispute a fact need
only be capable of being ‘presented in a form that
would be admissible in evidence.'” LSR
Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530,
534 (5th Cir. 2016) (quoting Fed.R.Civ.P. 56(c)(2)); see
also Maurer v. Indep. Town, 870 F.3d 380, 384 & n.1
(5th Cir. 2017) (noting that the 2010 amendment effectively
overruled prior Fifth Circuit precedent that required
admissible evidence to oppose summary judgment).
with the applicable Federal Rules, the Ninth Circuit
historically applies a double standard to the admissibility
requirement for evidence at the summary judgment stage.
See 10B Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice & Procedure §
2738 (3d ed. 1998). With respect to the
movant's evidence offered in support of a motion
for summary judgment, Ninth Circuit precedent required that
it be admissible both in form and in content. See Canada
v. Blains Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.
1987) (“This court has consistently held that documents
which have not had a proper foundation laid to authenticate
them cannot support a motion for summary
judgment” (emphasis added); Hamilton v. Keystone
Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976)
(“Exhibits which have not had a proper foundation laid
to authenticate them cannot support a motion for
summary judgment” (emphasis added)). “Because
verdicts cannot rest on inadmissible evidence and a
grant of summary judgment is a determination on the
merits of the case, it follows that the moving
party's affidavits must be free of hearsay.”
Burch v. Regents of Univ. of California, 433
F.Supp.2d 1110, 1121 (E.D. Cal. 2006) (internal quotation
marks and citations omitted; emphasis in original).
respect to the non-movant's evidence offered in
opposition to a motion for summary judgment, the Ninth
Circuit stated that the proper inquiry is not the
admissibility of the evidence's form, but rather whether
the contents of the evidence are admissible.
Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir.
2003) (holding that, at summary judgment, the district court
should consider unsworn, inadmissible hearsay statements
written by the plaintiff in a diary about her diabetes
symptoms to support an ADA discrimination claim); see
also Celotex Corp., 477 U.S. at 324 (“We do not
mean that the nonmoving party must produce evidence
in a form that would be admissible at trial in order to avoid
summary judgment” (emphasis added)). Accordingly, the
Ninth Circuit consistently holds that a non-movant's
hearsay evidence may establish a genuine issue of material
fact precluding a grant of summary judgment. See
Fraser, 342 F.3d at 1036-37; Carmen v. S.F. Unified
Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001)
(reasoning that, at summary judgment in an employment
discrimination suit, a plaintiff's declaration that a
school official “did make [an inflammatory] statement
would be enough to establish a genuine issue of fact”
despite concerns over hearsay and double hearsay). Thus,
“[m]aterial in a form not admissible in evidence may be
used to avoid . . . summary judgment[.]”
Tetra Techs., Inc. v. Harter, 823 F.Supp. 1116, 1120
(S.D.N.Y. 1993) (emphasis in original)).
“unlike objections to foundation and hearsay,
objections that evidence is not relevant or is misleading are
superfluous at the summary judgment stage.” Quanta
Indem. Co. v. Amberwood Dev. Inc., No.
CV-11-01807-PHX-JAT, 2014 WL 1246144, at *2-3 (D. Ariz. Mar.
26, 2014) (internal quotation marks and citations omitted).
“‘Objections to evidence on the ground that it is
irrelevant, speculative, and/or argumentative, or that it
constitutes an improper legal conclusion are all duplicative
of the summary judgment standard itself' and are thus
‘redundant' and unnecessary to consider
here.” Patterson v. Reliance Standard Life Ins.
Co., 986 F.Supp.2d 1140, 1144 (C.D. Cal. 2013) (quoting
Burch, 433 F.Supp.2d at 1119).
Defendant's Evidentiary Objections
preliminary matter, Defendant objects to several of
Plaintiff's exhibits and statements of fact (or evidence
underlying the statements) on the grounds that they are
inadmissible. (Doc. 69 at 1-3). As detailed herein, however, a
non-moving party may establish a genuine issue of material
fact at the summary judgment stage by relying on evidence
that is not in an admissible form. See supra Part
II(A). To the extent Plaintiff relies on hearsay evidence to
support her claims at this stage, that evidence “could
be presented in an admissible form at trial-namely, the
plaintiff [or appropriate individual] could testify from her
personal knowledge.” Cook v. Lee, No.
CV-17-02569-PHX-DGC (JFM), 2019 WL 2525373, at *3 (D. Ariz.
June 19, 2019) (citing Fraser, 342 F.3d at 1036).
Accordingly, Defendant's evidentiary objections are
overruled without prejudice to raise any appropriate
objections at trial. Just as Defendant's Reply (Doc. 69)
“attempt[s] to object” to various facts offered
by Plaintiff “in the context of its legal argument,
” the Court will do the same in its analysis. (Doc. 69
Defendant points out that the operative Complaint (Doc. 25)
“does not allege facts to support any claim by
Plaintiff's husband, Paul Lucas, and [it] does not assert
any claim personal to him.” (Doc. 57 at 7). Plaintiffs
confirm that “[Paul] Lucas has not and did not intend
to bring a derivative claim.” (Doc. 62 at 2).
Consequently, “[Plaintiff] concedes that [Paul]
Lucas's claim . . . should be dismissed.”
(Id.). To the extent the Complaint (Doc. 25) could
be read to state a claim by Paul Lucas, Defendant is entitled
to summary judgment on any such claim brought by Paul Lucas.
the Complaint (Doc. 25) seeks punitive damages for Counts I
through VI. (See Doc. 25 at 10-14). Defendant points
out that “[t]he only defendant here is Tempe Union High
School District, ” and “[p]ublic entities are not
subject to punitive damages under federal or state
law.” (Doc. 57 at 14 (citing 42 U.S.C. §
1981a(b)(1); Ariz. Rev. Stat. § 12-820.04)). Likewise,
Plaintiff “concedes” that “the punitive
damages claim should be dismissed.” (Doc. 62 at 2).
Accordingly, the Court finds that Defendant-a public entity
cannot be subject to punitive damages in this case.
Defendant argues that Plaintiff's Response (Doc. 62)
violates Federal Rule 56(c)(1)(A) by failing to cite
“particular parts of materials in the record” in
“asserting that a fact cannot be or is genuinely
disputed.” (See Doc. 69 at 3-4 (citing
Fed.R.Civ.P. 56(c)(1)(A)). Here, Plaintiff states in her
Response (Doc. 62) that she “presented admissible
relevant evidence in her [PSOF, ] which is incorporated
herein by reference because of page limits.” (Doc. 62
at 5). Plaintiff then fails to provide any pinpoint citations
to particular parts of the record throughout her entire
Response (Doc. 62). (See generally id.). Page limits
do not excuse a party from providing pinpoint citations in
the body of a brief or memorandum. See Fed. R. Civ.
P. 56(c)(1)(A). Defendant argues that “[t]his omission
alone should entitle Defendant to summary judgment.”
(Doc. 69 at 3). Federal Rule 56(c)(3) states that
“[t]he court need consider only the cited materials,
but it may consider other materials in the record.”
Fed.R.Civ.P. 56(c)(3). Despite Plaintiff's failure to
comply with the Federal Rules or Local Rules regarding
citations, the Court nevertheless “cull[s] through the
record to try to locate evidence for Plaintiff on each
claim” where it may be found. (Doc. 69 at 4); see
asserts four types of claims on the basis of race under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”), and 42 U.S.C. § 1981:
hostile work environment, disparate treatment, retaliation,
and failure to hire. (See Doc. 25 at 2). Plaintiff
also asserts a single claim under 29 U.S.C. § 623 for
failure to hire on the basis of age. (See id.).
“The Court notes at the outset that legal principles
applicable to the Title VII claims apply with equal force to
the claims brought under § 1981.” See Newton
v. Suncrest Healthcare Ctr., LLC, No. CV-08-711-PHX-DGC,
2009 WL 4151180, at *1 (D. Ariz. Nov. 23, 2009) (citing
Fonseca v. Sysco Food Servs. of Ariz., Inc., 374
F.3d 840, 851 (9th Cir. 2004) (disparate treatment));
Mannatt v. Bank of Am., NA, 339 F.3d 792, 798,
800-01 (9th Cir. 2003) (hostile work environment and
Disparate Treatment ...