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Nunn v. Dillon Auto Sales Inc.

United States District Court, D. Nebraska

June 23, 2016

LORENZO NUNN, Plaintiff,
v.
DILLON AUTO SALES, INC., Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge.

         The 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.

         BACKGROUND

         The 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.

         During 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, [1] the 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.

         The 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 at 18.

         The 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.

         Finally, 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.

         The 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.

         The 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.

         According 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.

         According 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.

         In 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.

         Additionally, 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.

         The 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 25.

         The 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.

         STANDARD OF REVIEW

         Summary 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.

         On a 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.

         Rule 56 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).

         ANALYSIS

         I. Motion to Strike

         The 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.

         A. Filing 52-3

         First, 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.

         Under 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 (2010).

         First, 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.[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.

         Next, 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 proper ...


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