United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
plaintiff, Lorenzo Nunn, has sued his former employer, Dillon
Auto Sales, Inc., for race discrimination under Title VII of
the Civil Rights Act (42 U.S.C. § 2000e-2), the
Nebraska Fair Employment Practices Act (Neb. Rev. Stat.
§ 48-1104), and 42 U.S.C. § 1981.
Filing 1-1. This matter is before the Court on the
defendant's motion for summary judgment or, in the
alternative, motion for partial summary judgment (filing
49), and motion to strike (filing 53). For
the reasons explained below, the Court will grant in part and
deny in part the defendant's motion for summary judgment,
and will deny the defendant's motion to strike.
parties agree that the plaintiff, who is African-American,
was employed by the defendant, which is a used-car
dealership, on two separate occasions: first, from July 2012
to May 2013, and second, for a few weeks in November 2013.
Filing 50 at 3, 4.
his first tenure of employment, the plaintiff worked for the
defendant as a salesman at one of its Lincoln locations.
Filing 50 at 4. He was hired by Steve Vitamvas, and
his supervisors were Vitamvas and Terry Devine. Filing
50 at 4. The plaintiff has produced evidence that
during this period of employment, Chris Dillon,
defendant's owner, made racially charged comments to him.
See filing 52 at 7. For instance, the
plaintiff stated in his deposition that Dillon told him
"that I was too good of a salesman to be trying to help
black people, and a lot of blacks can't buy vehicles,
they're dead beats, I am wasting my time." Filing
51-3 at 18.
parties agree that on May 1, 2013, the plaintiff resigned
from employment with the defendant. Filing 50 at 4.
According to the defendant, the plaintiff resigned solely
because he did not agree with the way in which the defendant
split the plaintiff's commission with another employee on
a particular vehicle sale. Filing 50 at 4. The
defendant points to the plaintiff's deposition testimony,
in which he explained, "The commission made me leave
that place." See, filing 50 at 4;
filing 51-3 at 17. The defendant also notes that the
plaintiff stated in his deposition that he did not believe
race played a role in the decision to split his commission.
See, filing 50 at 4; filing 51-3
at 17. Further, the plaintiff stated in his deposition that
he did not believe, at the time he resigned, that he was
being discriminated against on the basis of his race.
See, filing 50 at 4; filing 51-3
plaintiff does not dispute that he resigned because of his
dissatisfaction with the split commission, or that the split
commission was not motivated by race. Filing 52 at
7. But the plaintiff suggests that there was another
motivating factor in his decision to resign: he stated in his
deposition that he had difficulty getting along with two
other employees- Chad Engel and Russ Kyle. Filing 52
at 7; filing 51-3 at 15. However, the plaintiff said
in his deposition that their issues were related to
"personal stuff, " and that neither Engel nor Kyle
ever made comments with a racial component. Filing
51-3 at 16. Additionally, the plaintiff stated at a
later point in his deposition that Engel and Kyle had
"nothing to do with" his decision to resign. Filing
51-3 at 17.
the plaintiff implies that he resigned in part because of the
racially charged comments Dillon made to him. See
filing 52 at 7. In support of this contention, the
plaintiff cites a portion of his deposition in which he
discusses those comments. Filing 52 at 7. But the
statements cited actually support the conclusion that
Dillon's comments did not motivate the plaintiff
to resign: the plaintiff said, "Chris Dillon said stuff
to me as far as racial- racial stuff, those comments, but
that didn't lead me to-you know, I came back to
Dillon's." Filing 51-3 at 18. And the
plaintiff identifies no other evidence that Dillon's
racially charged comments caused him to resign.
parties agree that immediately after the plaintiff left his
employment with the defendant in May 2013, he began working
for RPM Motors. Filing 50 at 5. His supervisors at
RPM Motors were Brent Zywiec, Jason Klement, and Jason
Svoboda. Filing 50 at 5.
parties do not dispute that on November 6, 2013, the
plaintiff was rehired by the defendant as a salesman. Filing
50 at 4. The decision to rehire the plaintiff was
made by Devine and Terry Troutner. Filing 50 at 4.
The plaintiff's employment was subsequently terminated on
November 26, 2013. Filing 50 at 5. The parties do
not dispute that Dillon made the decision to terminate the
plaintiff's employment. Filing 50 at 5. However,
they disagree as to Dillon's reasons for that decision.
to the defendant, Dillon decided to terminate the
plaintiff's employment after Dillon received a call from
Jason Svoboda, the owner of RPM Motors. Filing 50 at
5. The defendant contends that Svoboda told Dillon that he
believed the plaintiff had stolen money from RPM Motors when
the plaintiff was employed there. Filing 50 at 5.
According to the defendant, Dillon decided that "he
should not allow this type of employee to continue to work
for Dillon Auto." Filing 50 at 5. He directed
Devine and another manager named Jeremy Schwartz to terminate
the plaintiff's employment. Filing 50 at 5.
to the plaintiff, Troutner was the person who fired him.
See filing 52 at 7. In his deposition,
Troutner said that he asked Dillon why he wanted to terminate
the plaintiff, given that the defendant was short-staffed.
Filing 52 at 7. According to Troutner, Dillon told
him he "didn't want his type working there."
See, filing 52 at 8; filing 52-1
at 3. When Troutner asked Dillon what he meant by "his
type, " Dillon said, "You know what I mean."
Filing 52-1 at 3-4.
Troutner's interpretation, Dillon was referring to the
plaintiff's race. Filing 52 at 8; filing
52-1 at 4. Troutner explained in his deposition that
he believed this to be Dillon's meaning based on events
surrounding the earlier firing of Keith Prickard, another
employee who was African-American. See, filing
52 at 8; filing 52-1 at 4. Prickard was
terminated by Vitamvas while Troutner was out of town. Filing
52-1 at 4. According to Troutner, Vitamvas told him
that Dillon had instructed Vitamvas to fire Prickard because
"we didn't want his type working there." Filing
52-1 at 4.
the plaintiff points to Troutner's statement in his
deposition that, a few days after the plaintiff was
terminated, Dillon told Troutner that the owner of another
dealership thought the plaintiff had stolen money from the
dealership. See, filing 52 at 8; filing
52-1 at 7. According to Troutner, Dillon said,
"[W]e'll use that as an excuse for his
termination." See, filing 52 at 8;
filing 52-1 at 7. The plaintiff also directs the
Court's attention to a Nebraska Department of Labor form
titled "Request to Employer for Separation
Information." See, filing 52 at 8;
filing 52-3. The form was addressed to Dillon Auto
Sales, care of Sheryl Pont. Filing 52-3. The form
was filled out by hand, and bears Pont's signature.
Filing 52-3. Next to the signature, Pont's job
title is listed as "Controller." Filing
52-3. One item on the form directs, "Explain
why the claimant is no longer working for you." Filing
52-3. The handwritten response states, "His
brief stint in Nov. 2013 ended due to lack of
production." Filing 52-3.
parties do not dispute that, after his employment with the
defendant was terminated, the plaintiff was hired by
Morrissey Motors. Filing 50 at 5. He was hired soon
after his termination, but decided not to begin work until
January 2014. See, filing 50 at 5; filing
52 at 9. According to the plaintiff, he made this
decision because his "Thanksgiving was already messed
up" as a result of his termination, and he had made
plans to celebrate Christmas and New Year's with family
in Illinois. Filing 52 at 9; filing 51-3 at
parties agree that the plaintiff's pay at Morrissey
Motors was 25% of the front-end gross on the sales that he
made. Filing 50 at 5-6. They also agree that he was
paid 25% of the front-end gross on the sales that he made
when he worked for the defendant. Filing 50 at 6.
However, the plaintiff contends that the gross at Morrissey
Motors was different from the gross at the defendant company.
Filing 52 at 9. The plaintiff worked at Morrissey
Motors until January 7, 2015. Filing 50 at 6. He was
incarcerated from January 8, 2015 to July 2, 2015. Filing
50 at 6.
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). The movant bears the initial
responsibility of informing the Court of the basis for the
motion, and must identify those portions of the record which
the movant believes demonstrate the absence of a genuine
issue of material fact. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc). If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out specific facts
showing that there is a genuine issue for trial. Id.
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653
F.3d 745, 751 (8th Cir. 2011). The existence of a mere
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 791-92 (8th Cir. 2011). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Torgerson, 643 F.3d at 1042.
allows the Court to grant summary judgment as to some issues
but not as to others. See Fed. R. Civ. P.
56(a). Upon doing so, the Court may "enter an order
stating any material fact-including an item of damages or
other relief-that is not genuinely in dispute, " and
thereby treat such a fact "as established in the
case." Fed.R.Civ.P. 56(g).
Motion to Strike
defendant moves to strike certain evidence the plaintiff
relies on in opposing the defendant's motion for summary
judgment. Filing 54. For the reasons discussed
below, this motion will be denied.
the defendant moves to strike filing 52-3. Filing
54 at 2. The exhibit is a copy of a form titled
"Request to Employer for Separation Information."
Filing 52-3. At the top of the form is an address
block that reads "Dillon Auto Sales Inc. c/o Sheryl Pont
6345 N 28th Street Lincoln NE 68521." Filing
52-3 (formatting omitted). The form has been filled
out by hand, and bears the signature of Sheryl R. Pont, who
lists her title as "Controller." Filing
52-3. The defendant moves to strike this exhibit and
all references to it on the grounds that it was not
authenticated, that no foundation has been laid for it, that
it is incomplete, and that it contains hearsay. Filing
54 at 2.
Fed. R. Civ. P. 56(c)(2), 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." Then, the burden is on 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) advisory committee note
the defendant argues that the exhibit should be stricken
because it has not been properly authenticated. Filing
54 at 3. According to the defendant, the plaintiff
has offered no evidence showing that Pont is really the
person who filled out the form, or that she really is the
controller of the defendant company. See, filing
57 at 3; filing 54 at 3. But after Fed.
R. Civ. P. 56 was amended in 2010, submission of
unauthenticated documents in support of or opposition to a
summary judgment motion no longer violates it per
se. See Foreword Magazine, Inc. v.
OverDrive, Inc., 2011 WL 5169384, at *2 (W.D. Mich.
2011). Instead, the proper objection to unauthenticated
evidence is that it cannot be authenticated, and therefore
cannot be presented in admissible form at trial. See
Fed.R.Civ.P. 56(c)(2); see also Foreword
Magazine, at *2. Here, defendant has not attempted to
assert that the plaintiff is unable to authenticate filing
52-3. Thus, the Court will not strike these exhibits
on the basis of authentication.
the defendant argues that the exhibit should be stricken
because no foundation has been laid for it. Filing
54 at 2. But as explained above, the only proper
objection to evidence offered in opposition to summary
judgment is an objection that the material cannot be
presented in admissible form. Here, the defendant has not
attempted to argue that the plaintiff will be unable to lay