United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on the parties' cross-motions
for summary judgment, pursuant to Federal Rule of Civil
Procedure 56. (DE 65, 67). Also before the court is
plaintiff's motion to strike, made pursuant to Rules
12(f) and 56(c)(2). (DE 77). The motions have been fully
briefed and, in this posture, the issues raised are ripe for
ruling. For the following reasons, the court grants in part
and denies in part plaintiff's motion for summary
judgment, denies plaintiff's motion to strike, and grants
in part and denies in part defendant's motion.
January 13, 2015, plaintiff, the United States Equal
Employment Commission (“EEOC”) commenced this
action against defendant on behalf of Michael Reddick, Jr.
(“Reddick”), alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C.§ 2000e et seq. Plaintiff asserts two
claims against defendant. Specifically, plaintiff alleges
that defendant failed to accommodate Reddick's religious
belief of wearing a head covering (“crown”) and
that defendant unlawfully discharged Reddick on the basis of
his religion, Rastafarian.
to the commencement of this action, Reddick filed a Charge of
Discrimination against defendant with plaintiff (“EEOC
charge”). On December 19, 2013, plaintiff mailed to
defendant a Notice of Charge of Discrimination
(“Notice”). However, plaintiff incorrectly
recorded defendant's address and defendant did not
receive the Notice. Plaintiff resent the Notice to defendant
on April 7, 2014, which defendant received on April 10, 2014.
On April 20, 2014, defendant submitted a written response to
allegations set forth in the EEOC charge,
prepared by its General Manager, Latrisha Jenkins
(“Jenkins”). After retaining legal counsel,
defendant submitted an additional response on August 18,
September 30, 2014, plaintiff issued a Letter of
Determination (“Letter”) informing defendant that
plaintiff had reasonable cause to believe that on or around
December 5, 2013, defendant violated Title VII by failing to
accommodate Reddick's religious beliefs and discharging
him on the basis of his religion. On November 3, 2014, the
parties participated in a conciliation conference,
were unable to reach a resolution. This action followed.
a period of contentious discovery, on August 31, 2016,
defendant filed the instant motion for summary judgment,
accompanied by a statement of material facts, appendix
thereto, and memorandum of law (DE 67, 68, 69). Defendant
relies upon the deposition of Reddick, as well as the
depositions of several of defendant's employees,
declaration of Debbie Carrara, business manager of
defendant's insurance company, and the affidavit of
defense counsel John D. Cole (“Cole”).
same date, plaintiff filed the instant partial motion for
summary judgment on two affirmative defenses, accompanied by
a statement of material facts, appendix thereto, and
memorandum of law. (DE 65, 66, 70). In support of its motion,
plaintiff also relies upon the depositions of Reddick, M.
Aldred, and Jenkins, as well as declarations of EEOC Deputy
Director, Thomas Colclough (“Colclough”), the
Notice, defendant's position statement dated August 19,
2014, a document titled “Michael Reddick Notice of
Termination, ” and Reddick's paycheck from
defendant. Plaintiff also moved to strike certain evidence
relied upon by defendant in support of its motion for summary
judgment. Defendant responded in opposition on October 24,
2016. (DE 88).
facts viewed in the light most favorable to plaintiff may be
summarized as follows.Defendant is a full-service catering
company that operates throughout the Research Triangle area.
(DE 75 ¶ 1). In November 2013, Reddick responded to
defendant's advertisement for a full-time delivery
driver. (Id. ¶ 2). On his application, Reddick
indicated that he had never been convicted of a crime,
despite having an extensive criminal history. (Id.
¶¶ 3-5). After Reddick submitted his application,
he interviewed for the position. (Id. ¶ 8).
During his interview, Reddick did not wear religious headwear
or discuss a need to wear religious headwear. (Id.
¶¶ 8-9). Following the interview, defendant hired
Reddick as a delivery driver. (Id. ¶ 10). As a
delivery driver, Reddick was responsible for traveling to and
setting up events at various locations outside
defendant's primary offices. (Id. ¶ 12).
began working for defendant on December 4, 2013.
(Id. at ¶ 13). That day, Reddick arrived to
work at approximately 5:45 a.m. and spent most of the day
shadowing another employee, Ramirez, at a catering event on
the campus of North Carolina State University. (Id.
¶¶ 13-14). The next day, December 5, 2013, Reddick
reported to work at approximately 6:00 a.m. (Id.
¶ 27). Shortly thereafter, Reddick encountered
defendant's co-owner and executive director, M. Aldred,
who told Reddick to remove his hat. (Id. ¶ 28).
Reddick informed M. Aldred that he wore the hat for religious
purposes. (Id. ¶ 29). In response, M. Aldred
asked Reddick about his religion, and Reddick indicated that
he was Rastafarian. (Id. ¶ 31). According to
plaintiff, shortly thereafter, M. Aldred sent Reddick home
from work early and told Reddick that she and Jenkins needed
to discuss what to do. (Id. ¶ 114).
December 6, 2013, Reddick returned to work at approximately
6:00 a.m. (Id. ¶ 45). “At the time of
Reddick's arrival, [the office] was in the midst of a
busy breakfast delivery shift and [no one] was . . . able to
speak to [Reddick].” (Id. ¶ 46).
Accordingly, Jenkins instructed Reddick to return at 11:00
a.m. (Id. ¶ 47). At that time, Jenkins also
decided to terminate Reddick. (Id. ¶ 48). After
making this decision, Jenkins told M. Aldred she was
terminating Reddick and created a document titled
“Michael Reddick Notice of Termination.”
(Id. at ¶ 52). Jenkins asked defendant's
employee, Eric Whitfield (“Whitfield”), to carry
out the termination. (Id. ¶ 53).
after Reddick returned to work on December 6, 2013, Reddick
met with Whitfield and Sales and Event Coordinator, Robin
Gromberg. (DE 75 ¶ 125). At the meeting, Whitfield told
Reddick he was being terminated and gave Reddick a copy of
the Notice of Termination. (Id. at ¶¶ 128,
139-140). Whitfield also presented Reddick with a paycheck
covering the time he worked on December 4 and December 5,
2013. (Id. ¶ 57). No taxes were taken out of
Reddick's paycheck. (Id. ¶ 58). Reddick
recorded the termination meeting on his cell phone. (DE 65-6
at 17-18). Following the meeting, Reddick drove to the
EEOC's Raleigh office and filed a charge of
discrimination alleging Title VII violations by defendant.
Motion to Strike
moves to strike certain exhibits attached to defendant's
statement of material facts supporting its motion for summary
judgment. Specifically, plaintiff seeks to exclude an
attachment to the affidavit of defense counsel Cole, which
contains interview notes prepared by Colclough during
Reddick's interview with the EEOC. (DE 68-10). Plaintiff
contends that the interview notes, and statements contained
therein, are inadmissible hearsay because they are offered
against plaintiff by defendant to prove that Reddick believed
himself to be an independent contractor. Plaintiff further
contends the interview notes cannot be authenticated
properly. Defendant counters by arguing that the notes are
part of the EEOC's investigatory record, thus exempting
them from the rule against hearsay.
Rule of Evidence 801(c) defines hearsay as a declarant's
out of court statement introduced for the truth of the matter
asserted therein. Fed.R.Evid. 801(c). Under Rule 801, a
statement is not hearsay if:
The statement is offered against an opposing party and: (A)
was made by the party in an individual or representative
capacity; (B) is one the party manifested that it adopted or
believed to be true; (C) was made by a person whom the party
authorized to make a statement on the subject; [or] (D) was
made by the party's agent or employee on a matter within
the scope of that relationship and while it existed[.]
Fed. R. Evid. 801(d)(2)(A)-(D).
there are two levels of potential hearsay- the interview
notes as transcribed by Colclough and the statements
contained therein regarding assertions Reddick made during
the interview. As to the first level of hearsay, plaintiff
concedes that the transcribed interview notes are admissible
as “a business record maintained in the normal course
of EEOC's operation.” (DE 78 at 4); see
Fed.R.Evid. 803(6). The interview notes are also excluded
from the definition of hearsay as statements made by
plaintiff's agent. Fed.R.Evid. 801(d)(2)(D).
regard to statements contained within the interview notes,
the issue is whether a charging party on whose behalf the
EEOC brings a civil enforcement action under Title VII is an
“opposing party” for purposes of Rule 801(d)(2).
While the Fourth Circuit has not addressed the issue, at
least one court has found statements made by the charging
party in an EEOC enforcement action to be admissible as
statements of an opposing party under Rule 801(d)(2). See
E.E.O.C. v. Placer ARC, No. 2:13-CV-0577-KLM-EFB, 2016
WL 74032, at *2 (E.D. Cal. Jan. 7, 2016). In E.E.O.C. v.
Placer ARC, the court reasoned that although the
charging party was not a party to the civil action, she was
not an “ordinary witness but rather a ‘witness
plus' on whose statements [the defendant] should be
entitled to rely on . . . given the traditional
justifications for the hearsay rules and its
exclusions.” Id. Upon careful consideration,
the court is inclined to subscribe to this analysis. For the
reasons given, the interview notes are received into
evidence, where they also are properly authenticated.
document may be authenticated by testimony of a witness
establishing that the document is what it is claimed to be,
through the use of distinctive characteristics, or through
evidence about public records. Fed.R.Evid. 901(b)(1), (4)
& (7). Here, defendant submitted an affidavit of defense
counsel, which confirms that plaintiff provided the interview
notes to defendant as part of the EEOC's investigatory
file. (DE 68-10). Plaintiff has also confirmed that the
contents of the file it produced to defendant constitute
the“full and complete investigatory file [of all
non-privileged documents] regarding Reddick's Charge of
Discrimination.” (DE 88-2 at 3). Accordingly, the
interview notes are properly authenticated under Rule
901(b)(1) and (7) as true and correct copies of the notes
Colclough prepared during the EEOC's investigation of
foregoing reasons, no hearsay problem exists here, where the
interview notes, and statements contained therein, are
admissible under Rule 801(d)(2). Additionally, since
defendant provided an affidavit sufficiently authenticating
the notes as a document received from the EEOC, the same has
been properly authenticated under Rule 901(b). Having found
the notes to be admissible on these bases, the court need not
address the parties' alternative arguments. Consequently,
plaintiff's motion to strike is denied.
Motion for Summary Judgment
Standard of Review
judgment is appropriate where “the movant shows that
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). The party seeking summary judgment bears
the initial burden of demonstrating the absence of any
genuine issue of material fact. Celotex Corp. v.
Catrett,477 U.S. 317, 323 (1986). Once the moving party
has met its burden, the nonmoving party then must
affirmatively demonstrate with specific evidence that there
exists a genuine issue of material fact requiring trial.
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp.,475 U.S. 574, 586-87 (1986). Only disputes