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Dunn v. Hunting Energy Services

United States District Court, S.D. Texas, Houston Division

December 21, 2017

Byron Dunn, Plaintiff,
Hunting Energy Services et al., Defendants.


          Gray D Miller, United States District Judge.

         Pending before the court is a motion for summary judgment filed by defendant National Coupling Company, Inc. d/b/a Hunting Energy Services (“NCC”).[1] Dkt. 31. Additionally, plaintiff Byron Dunn filed numerous objections to evidence in his response to the motion for summary judgment. Dkt. 36. Having considered the motion, objections, response, reply, record evidence, and applicable law, the court is of the opinion that the objections should be SUSTAINED IN PART and OVERRULED IN PART and the motion for summary judgment should be GRANTED IN PART and DENIED IN PART.

         I. Background

         This case relates to Dunn's employment at NCC. Dkt. 1. Dunn started working for NCC as a service engineer in December 2013. Dkt. 31, Ex. A. He received a “very good” performance evaluation approximately sixty days after beginning work.[2] Dkt. 37-4 (performance evaluation). The person completing the evaluation form noted that he saw Dunn as a leader and that he was reliable and completed tasks well. Id. There was, however, a notation made that Dunn “needed improvement” in “patience as pertaining to co-workers” and that there were some “ongoing issues” with regard to “2nd shift.” Id. Nevertheless, the evaluator rated Dunn on the low end of “very good” on the “interpersonal relationships” factor of the evaluation. Id.

         Dunn asserts that after this evaluation, he started performing various supervisory-type tasks and that it appeared he was being considered for a supervisor opening. Dkt. 36 (submitting evidence that Dunn was conducting interviews and was copied on emails to department employees). On March 6, 2014, when Dunn asked his facilities manager, John Coffman, if a choice on “the supervisor position” was forthcoming, Coffman responded, “LOL, come see me. Will cover this.”[3]Dkt. 37-8. By April 11, 2014, Dunn still had not been promoted. Dkt. 36. He sent Coffman another email asking about getting “more involved with responsibilities as a Supervisor” and inquiring whether he could “get a head start on some training, ” and Coffman informed Dunn that he had signed Dunn up for “all the supervisor training they offer Tooling U.” Dkt. 37-13.

         About a month later, Dunn noted in a diary of events he kept at work that an “Asian guy Loc” told him that “they . . . were not going to make [Dunn] a full time supervisor and that they were using [Dunn].” Dkt. 37-15. Loc allegedly told Dunn that the night supervisor had said there was “no way in the hell they will make that boy supervisor.” Id. On May 17, 2017, Dunn noted that he asked Coffman about this issue and Coffman told him that he would “check in to it.” Id. On May 26, 2017, Dunn wrote in the same diary that Coffman called him into his office and told him that the company had just hired a “white kid straight out of college with no [training] and made him head of a department” and that the managers above Coffman had told him to “get rid of [Dunn's] black ass” and that it was “racial.” Id. Despite this discussion, on June 6, 2014, Dunn wrote that Coffman told him he needed to take classes on being a supervisor and that Coffman would order some books for Dunn. Dkt. 37, Ex. 16.

         On June 10, 2014, Dunn was locked in a machine while he was performing maintenance on it. Dkt. 31, Ex. A ¶ 27. Dunn contends the door accidentally closed and locked. Dkt. 31, Ex. A-12 (Dunn's statement regarding the accident). He had inserted a rag to keep the door from locking, but the rag fell out. Id. Dunn said that he yelled for another employee to open the door, and the other employee was able to let him out. Id. NCC considered this a “Near Miss, ” and it requires employees to report near misses on a form. Id.; Dkt. 36, Exs. A-16, A-17. Dunn told Coffman about the incident but did not complete the form. Dkt. 36 at 23; Dkt. 31, Ex. A-13 (Coffman's account of the near miss).

         On June 13, 2014, Dunn sent two emails to NCC's corporate office. Dkt. 31, Ex. A ¶ 29. The first provides a phone number and states that he “just want[s] to make a living for [his] family, and if they are intimidated by [him] ok just transfer [him] to another facilit[y].” Dkt. 31, Ex. A-20. Attached to that email is a list entitled “Update” that contains a diary of events from May 23, 2014 through June, 13, 2014. Id. His note on June 9, 2014, after discussing the promotion of a white employee, states: “It is for sure, that if you have knowledge and you are of color; your chances of being promoted are slim to none.” Dunn's entry for June 6, 2014, discusses how Coffman wanted him to take classes on being a supervisor and how Coffman did not understand why there was such a delay. Id. He then stated, “maybe my skin is my sin.” Id.

         The other email notes that he wanted to let somebody outside of the facility know what was happening. Dkt. 31, Ex. A-21. Dunn noted that a transfer may be helpful as “no person should feel unwelcomed in his/her work place.” Id. The corporate office forwarded both emails to Waggoner, and Waggoner met with Dunn the following week to discuss. Dkt. 31, Exs. A, A-20, A-21. Waggoner reports that she, NCC's president Dane Tipton, and Dunn had a seventy-five minute meeting during which Dunn “spoke in generalities and did not answer direct questions.” Dkt. 31, Ex. A ¶ 32. She asserts that Dunn did not provide any specific information to investigate and “asked to be left alone.” Id.

         On June 18, 2014, Dunn and Coffman had a discussion about Dunn failing to clock out. Dkt. 31, Ex. A-24. Coffman forwarded the email to Waggoner. Dkt. 31, Ex. A ¶ 34. Dunn received a written warning for this incident which indicates he was violating company policies. Dkt. 31, Exs. A, A-25. Dunn's “employee statement” on this warning is “complete retaliation.” Dkt. 31, Ex. A-25.

         On June 19, 2014, Dunn sent another email to the corporate office. Dkt. 31, Ex. A-28. He informed them that the problems “just will not stop” and he had been “forced to seek legal representation.” Id. He notes that since his initial complaints he had been written up and harassed and other employees had been asked to write statements. Id. He reiterated that all he “asked was for it to stop.” Id.

         On June 20, 2014, Dunn's employment was terminated. Dkt. 37, Ex. 17. Waggoner, Tipton, and Hillary LaManna (the Human Resources manager at corporate who had received Dunn's complaints)) made the decision. Dkt. 31, Ex. A ¶¶ 37-38. The reason for separation, according to the separation notice, was that Dunn “refused to cooperate in 3 separate investigations and [was] and the following categories are marked “unsatisfactory”: reliability, adherence to policy, interpersonal relations, and judgment. Id. Dunn received “satisfactory” ratings with regard to quality, productivity, job knowledge, attendance, independence, creativity, and initiative. Id. There is a “yes/no” check box after the question “Would you rehire?, ” and “No” is checked. Id.

         Dunn filed a charge with the Equal Employment Opportunity Commission (“EEOC”) and received a right-to-sue notice on March 22, 2016. Dkt. 1 & Ex. A. Dunn timely filed his complaint in this court on June 17, 2016. Dkt. 1. He asserts the following claims: (1) race discrimination in violation of Title VII and 42 U.S.C. § 1981; (2) hostile work environment in violation of Title VII and 42 U.S.C. § 1981; (3) racial harassment; (4) disparate treatment in violation of Title VII; (5) vicarious employer liability for harassment by supervisors in violation of Title VII and § 1981; (6) retaliation in violation of Title VII and § 1981; (7) vicarious liability; (8) negligence; and (9) intentional infliction of emotional distress. Id. Dunn requests compensatory and punitive damages. Id.

         On August 31, 2016, NCC filed a motion to partially dismiss. Dkt. 5. On October 24, 2016, the court granted the motion and dismissed Dunn's state-law negligence, intentional infliction of emotional distress, and vicarious liability claims. Dkt. 15.

         On June 30, 2017, NCC filed a motion for summary judgment, seeking summary judgment in its favor on Dunn's remaining claims. Dkt. 31. NCC argues that Dunn cannot make out a prima facie case of race discrimination because he fails to identify a valid comparator and because there was not even a promotion available. Id. NCC asserts that Dunn's harassment claims fail because he cannot establish that the alleged racial comments were severe or pervasive enough to affect a term or condition of employment. Id. It additionally notes that Dunn did not take advantage of NCC's “remedial opportunities, ” so Dunn cannot establish that NCC knew or should have known about the alleged harassment. Id. Moreover, NCC claims that is had a legitimate nondiscriminatory reasons for terminating Dunn's employment. Id.

         On August 7, 2017, Dunn filed a response to the motion for summary judgment.4 Dkt. 36. Dunn contends that he has direct evidence that he was denied a promotion because of his race and that he therefore does not need to meet the prima facie burden that plaintiffs proving discrimination through circumstantial evidence must meet. Id. With regard to unequal pay, Dunn argues that Coffman (Dunn's supervisor) is an appropriate comparator and that Coffman made more than Dunn. Id. Dunn contends that he can prove disparate treatment by showing that other similarly situated employees outside of his protected class were treated more favorably under nearly identical circumstances because Dunn was disciplined “for the smallest of perceived infractions”-reporting an incident orally instead of in writing-and other workers were not disciplined for more serious infractions. Id. With regard to hostile environment, Dunn contends he was described using a racial slur multiple times and called a slave, a monkey, and a mayate (a Spanish word that allegedly translates into a racial slur), and that people used the term “black ass” with regard to Dunn more than once. Id. Dunn asserts that racial epithets and comments “were constant, almost daily as to be considered both severe and pervasive.” Id. Dunn contends that he reported the harassment pursuant to NCC's reporting procedure because he told Coffman “almost daily, ” he sent an unsigned email to corporate, and he reported the use of the “mayate” term to Human Resources. Id. Dunn additionally argues he was terminated after these reports in retaliation for engaging in protected activity. Id.

         NCC argues in reply that Dunn does not provide any direct evidence that he was discriminated against for failure to promote and cannot establish pretext. Dkt. 44. NCC argues that Dunn does not identify any comparators who were treated differently under nearly identical circumstances. Id. With regard to pay, NCC asserts that Dunn may not say that Coffman is his comparator, thus creating a new comparator, at this stage to attempt to create a fact issue. Id. Moreover, NCC contends that even if Dunn got past the prima facie case, Dunn has no evidence indicating that NCC's legitimate reason for terminating Dunn's employment is pretext. Id. NCC argues that Dunn cannot maintain a claim for disparate impact and fails to establish a genuine issue of material fact with regard to harassment because his evidence is unsupported and does not establish a prima facie case. Id. Finally, NCC argues that Dunn's retaliation claim fails for the same reasons his discrimination claim fails-because he has no evidence of pretext. Id.

         Dunn also asserts various objections to NCC's summary judgment evidence. Dkt. 36. The court will first rule on the evidentiary objections and then determine whether NCC is entitled to summary judgment on each of Dunn's claims.

         II. Evidentiary Objections

         Dunn moves to strike the following evidence attached to NCC's motion for summary judgment: (1) affidavit of Jennifer Waggoner (Ex. A), which Dunn contends was not made under penalty of perjury or with personal knowledge; (2) a job description that post-dates Dunn's employment date (Ex. A-4); (3) a payroll record (Ex. A-5), which Dunn contends should not be admitted if Waggoner's affidavit is not made on personal knowledge; (4) a record of a co-worker's complaint (Ex. A-9) because the translation of the complaint did not indicate it was a true and correct translation and it is therefore hearsay; (5) various reports and emails relating incidents at work (Exs. A-11 through A-15), which Dunn contends were prepared in anticipation of filing the motion for summary judgment and are thus untrustworthy; (6) more emails and one of Dunn's training records (Exs. A-18 through A-24), which Dunn contends have not been authenticated; (7) Dunn's separation notice (Ex. A-29), which Dunn contends lacks authenticity under the doctrine of optional completeness; (8) a description of the NCC position of assistant coupling supervisor (Ex. A-30), which Dunn contends cannot be authenticated and was prepared solely for the motion; and (9) a transcript (Ex. G-1) of a tape that contains a disclaimer because it cannot be considered an accurate reproduction of the conversation recorded.

         NCC asserts that the Waggoner affidavit (Ex. A) is valid evidence because it is a sworn affidavit that was notarized and thus does not need to state it was made “under penalty of perjury.” Dkt. 44. NCC argues that Waggoner appropriately authenticated all of the documents attached to her affidavit as business records and that she may authenticate the documents as business records as a “qualified person” under Federal Rule of Evidence 902(11). Id. NCC additionally provides specific reasons all of Dunn's other objections should be overruled. Id.

         A. Waggoner Affidavit

         NCC's first exhibit is the affidavit of Jennifer Waggoner, who is the Human Resources Manager of NCC and has working for NCC or its sister company since May 2011. Dkt. 31, Ex. A. The affidavit begins with the following sentence: “Before me, the undersigned authority, on this day appeared Jennifer Waggoner, a person known to me, who upon her oath deposed and stated as follows . . . .” Id. The affidavit is signed and sealed by a notary public. Id.

         Dunn asserts that an “affidavit must be sworn and made under penalty of perjury.” Dkt. 36 at 8 (citing Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985)). Dunn argues that there is no statement in Waggoner's affidavit that it was “made under penalty of perjury, ” so the affidavit should be stricken. Id. NCC contends that an affidavit does not need to state that is it made under penalty of perjury if it is notarized. Dkt. 44.

         In Pfeil, the Seventh Circuit, in considering whether to reverse a district court that refused to consider an affidavit missing the notary public's seal, stated that “[a]ffidavits are admissible in summary judgment proceedings if they are made under penalties of perjury; only unsworn documents purporting to be affidavits may be rejected.” 757 F.2d at 859 (citing 28 U.S.C. § 1746). It went on to note that the “‘absence of the formal requirements of a jurat in . . . sworn affidavits [does] not invalidate the statements or render them inadmissible if they were actually sworn to before an officer authorized to administer an oath.'” Id. (quoting Peters v. United States, 408 F.2d 719, 722 (Ct. Cl. 1969)). The court found that the affidavits in that case were sworn before a notary public and that “so long as the documents comply with 28 U.S.C. § 1746, and in the interests of justice, a district court should not be unnecessarily hyper-technical and overly harsh on a party who unintentionally fails to make certain that all technical, non-substantive requirements of execution are satisfied.” Id. Under 28 U.S.C. § 1746,

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)”.
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.

28 U.S.C. § 1746. This statute obviously applies when the statement is not notarized. The statement here is notarized, it just does not say “under penalty of perjury.”

         A signed statement that is notarized but does not state it is “true and correct” or “under penalty of perjury” does not qualify as a “sworn statement” under Fifth Circuit law. See Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (“Kline never declared her statement to be true and correct; therefore, her affidavit must be disregarded as summary judgment proof.”). In Nissho-Iwai, the Fifth Circuit noted that such a statement would allow “the affiant to circumvent the penalties of perjury in signing onto intentional falsehoods.” Id.

         Here, while the affidavit does not state “penalty of perjury, ” the court finds that the fact that it is notarized and the affiant declares it is “true and correct” is enough to subject her to the penalties of perjury. Thus, the affidavit is sufficient to qualify as a sworn statement and need not abide by the letter of 28 U.S.C. § 1746. Dunn's objection to the affidavit is OVERRULED.

         B. Exhibit A-4

         Exhibit A-4 is NCC's position description for a service engineer. Dkt. 31-2, Ex. A-4. It is dated August 19, 2013. Id. It was signed by a supervisor and employee (employee name illegible; supervisor first name is John) on January 6, 2014. Id. Dunn contends that since the signature date is after December 11, 2013-the date his employment commenced-its authenticity is questionable. Dkt. 36. NCC argues that the fact that the date the document was signed has no bearing on its authenticity and points out that Dunn did not dispute the document's authenticity during his deposition. Dkt. 44.

         The court agrees with NCC. Dunn admitted during his deposition that he had read and signed this job description. Dkt. 44-2 at 70-71. He agreed that he remembered “filling it out and completing it with Mr. Coffman.” Id. at 71. The date it was signed could possibly have some bearing on whether Dunn knew his job description between the date he was hired and the date the document was signed, but it does not make the document any less authentic. Dunn's objection to this exhibit is OVERRULED.

         C. Exhibit A-5

         Exhibit A-5 is a copy of Dunn's payroll records from NCC. Dkt. 31-2, Ex. A-5. It was attached to Waggoner's affidavit, and Waggoner contends the records are “true and correct copies of payroll registers from Mr. Dunn.” Dkt. 31-2, Ex. A. Dunn objects to this exhibit because the document was issued by Paychex of New York LLC and thus cannot be within Waggoner's personal knowledge. Dkt. 36. NCC argues that the payroll registers are admissible because Waggoner is the custodian of records, and she testified that the records were kept in the ordinary course of business. Dkt. 44. The court agrees with NCC. The payroll registers are admissible as business records under Federal Rule of Evidence 803(6)(B). Dunn's objection to Exhibit A-5 is OVERRULED.

         D. Exhibit A-9

         Exhibit A-9 is a copy of a handwritten statement by Jose Cortes, in Spanish, that is dated May 20, 2014. Dkt. 31-3, Ex. A-9. The exhibit includes a typed translation by Jorge Munoz. Id. Dunn objects to the translation as hearsay because it is being used for the truth of the matter asserted and because Munoz did not state under penalty of perjury that the translation was true and correct. Dkt. 36. Dunn also contends that the handwritten portion contains a word that is not even a word in Spanish-“promeve.”[5] Id. Additionally, Dunn argues that he did not have a chance to cross examine the translator. Id. NCC argues that it is not using the statement for the truth of the matter but merely to demonstrate that it received complaints about Dunn. Dkt. 44. As far as cross-examining the translator, NCC points out that Dunn was free to depose the translator during discovery. Id.

         The court agrees with NCC that the original statement is not hearsay because NCC is not using it to show the truth of Cortes's allegations but to show that Cortes had a complaint about Dunn. See Fed. R. Evid. 801(c)(2) (“‘Hearsay' means a statement that . . . a party offers in evidence to prove the truth of the matter asserted.”). The translation must be considered more closely. In general a translator is a “mere conduit” and “does not create an additional level of hearsay.” United States v. Cordero, 18 F.3d 1248, 1253 (5th Cir. 1994). However, in unusual circumstances, such as when the accuracy of the confession is legitimately questioned, courts must scrutinize the translation more closely. Courts in the Fifth Circuit consider the following factors when determining “whether to treat the translator as a mere language conduit”: “(1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter's qualifications and language skill; and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated.” United States v. Martinez-Gaytan, 213 F.3d 890, 892 (5th Cir. 2000). Here, NCC supplied the interpreter, and the court has no information regarding the interpretation. See Dkt. 31, Ex. A ¶ 25 (noting that Exhibit A-9 is a copy of a complaint and “the translation from Spanish to English”). NCC as the proponent of the hearsay has the burden of showing that a hearsay exception or exemption applies, and NCC has not met that burden. See Bldg. Specialties, Inc. v. Liberty Mut. Fire Ins. Co., 712 F.Supp.2d 628, 646 (S.D. Tex. 2010) (Rosenthal, J.). Accordingly, Dunn's objection to Exhibit A-9 is SUSTAINED.

         E. Exhibits A-11 to A-15

         Exhibits A-11 through A-15 are statements from various individuals relating to Dunn being locked in a machine while performing maintenance, which NCC characterizes as a “near miss, ” or Dunn's interactions with other employees. Dkt. 31, Exs. A, A-11-A-15. Exhibit A-11 is an email from Coffman to Waggoner dated May 21, 2014, in which Coffman discusses how he addressed an issue relating to an employee in the maintenance department-Mr. Cortes. Dkt. 31, Ex. A-11. Exhibit A-12 is a statement by Dunn about the “accident”-being locked in the machine; it is not dated. Dkt. 31, Ex. A-12. Exhibit A-13 is a statement by Coffman about what Dunn reported regarding being locked in the machine; it is dated June 17, 2014. Dkt. 31, Ex. A-13. Exhibit A-14 are notes by James Vau, who was investigating the near miss; the notes were prepared from June 17 through June 20, 2014. Dkt. 31, Ex. A-14. Exhibit A-15 purports to be a record of an interview of Dunn that occurred on June 18, 2014 and appears to have been signed by Dunn on June 20, 2014. Dkt. 31, Ex. A-15.

         Dunn argues that these statements must all be stricken from the record because they lack trustworthiness and were prepared in anticipation of filing the motion for summary judgment. Dkt. 36. He also contends that Exhibit A-15, which appears to contain Dunn's signature, “was not signed by Dunn but by someone else.” Id. NCC first notes that it is unclear how the documents could have been prepared in anticipation of litigation when they were prepared in 2014. Dkt. 44. It then points out that Exhibit A-12, the statement by Dunn that is not signed, is an excerpt from Dunn's own notes, the entirety of which are dated and attached as Exhibit E to the motion. Id. With regard to the allegation of forgery, NCC states that it “takes seriously Dunn's allegation of forgery and objects to Dunn's baseless assertion that his signature was forged.” Id.

         The court first addresses Dunn's objection that these exhibits are not trustworthy because they were prepared in anticipation to filing a motion for summary judgment. The documents were prepared several years ago and almost immediately after a complaint and an incident in the workplace. It was reasonable for Dunn's employer to investigate the incident and for Coffman to forward his resolution of the complaint to human resources. There is no reason to believe that the documents are untrustworthy because NCC potentially anticipated that it would be filing a motion for summary judgment in future litigation several years ago. This objection is OVERRULED.

         The court next addresses the forgery allegation. Dunn asserts that he need not introduce affirmative evidence of untrustworthiness, but only needs to raise the issue, citing the notes to Federal Rule of Evidence 803. Dkt. 36. Dunn does not provide an affidavit to support the contention in his response that the notes from his interview on June 18, 2014 were not signed by him. See Id. NCC does not provide any citation or defense to the allegation; it merely notes that Dunn has presented no evidence of forgery and that it takes the allegation seriously and “objects to Dunn's baseless assertion.” Dkt. 44 at 14.

         Federal Rule of Evidence 803 is a list of exceptions to the rule against hearsay. Fed.R.Evid. 803. NCC presumably offers the document at issue under Rule 803(6), which is the business records exception. The notes to the rule indicate that this exception exists because of the “element of unusual reliability of business records” due to “systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.” Fed.R.Evid. 803, note stated requirements of the exception-regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification-then the burden is on the opponent to show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Id. In meeting the burden, the opponent “is not necessarily required to introduce affirmative evidence of untrustworthiness, ” and the “determination of untrustworthiness necessarily depends on the circumstances.” Id.

         Here, Dunn appears to assert that his burden is simply to assert that the document is forged or that the documents are untrustworthy and that the court must then completely disregard the documents. However, as the notes to the Rules of Evidence state, the trustworthiness or lack thereof is dependent on the circumstances. The court finds that Dunn has not satisfied his burden by merely stating documents are prepared in anticipation of litigation or conclusorily alleging that he did not sign a document. While certainly the court will not treat Exhibit A-15 as a statement that was signed by Dunn since he disputes signing it, Dunn has given the court no reason to question the substance of the document, which seems to describe what happened on June 10 from Dunn's perspective. Dkt. 31-3, Ex. A-15. Whether Dunn signed the document or not, the business records affidavit states it is a “true and correct copy of Mr. Dunn's interview regarding the near miss incident.” Dkt. 31, Ex. A ¶ 27. Dunn's objection to this exhibit is OVERRULED.[6]

         F. Exhibits A-18 to A-24

         Dunn objects to exhibits A-18 through A-24 because he contends these exhibits are electronically stored information that has not been authenticated. Dkt. 36. He contends that Waggoner's affidavit does not adequately indicate that the records reflect the electronically stored information or that the method of generation is reliable. Id. (citing Lorraine v. Markel Am. Ins., 241 F.R.D. 534, 542-43 (D. Md. 2007)). NCC points out that Exhibit A-18 is not electronically stored information and all of the other exhibits are emails that provide circumstantial evidence that the email was written by the person identified by the sender's email address. Dkt. 44. It also notes that Exhibits A-19, A-20, A-21, A-22, and A-24 all contain Waggoner as either a recipient or sender, so her affidavit authenticates them not only as a custodian of record but as a recipient or author of the email. Id. As to Exhibit A-23, NCC notes that (a) Waggoner authenticates this email as custodian of records; and (b) regardless, Dunn himself cites to the email in his response to the motion for summary judgment. Id. (citing Dkt. 36 at 7).

         First, with regard to exhibit A-18, it is not electronically stored information, so Dunn's objection based on it being electronically stored information that was not properly authenticated is OVERRULED. Second, with regard to all of the emails which Waggoner sent or received, she states in her affidavit that they are true and correct copies. Under Federal Rule of Evidence 901(a), in order to authenticate an item of evidence, “the proponent must produce the evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). Since Waggoner sent or received these emails, she is an appropriate person to testify as to their authenticity. The non-binding case cited by Dunn, Lorraine v. Markel, supports this conclusion. See Lorraine, 241 F.R.D. at 542. In Lorraine, the United States District Court for the District of Maryland noted that a “party seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be” under Rule 901 and that “[c]ourts considering the admissibility of electronic evidence frequently have acknowledged that it may be authenticated by a custodian or other qualified witness with personal knowledge.” Id. Dunn's objections that Exhibits A-19, A-20, regard to Exhibit A-23, the court finds the fact that Dunn also relies on the evidence is dispositive. This objection is OVERRULED.

         G. Exhibit A-29

         Exhibit A-29 is Dunn's separation notice. Dkt. 31, Ex. A-29. Dunn contends that the document lacks authenticity and should also be stricken under the doctrine of optional completeness. Dkt. 36. Dunn asserts that NCC “tried unsuccessfully to white out from the section titled ‘FINAL EMPLOYEE EVALUATION' evaluations that were favorable to Dunn.” Id. He contends that NCC changed the “S” for Satisfactory to a “U” for Unsatisfactory and then placed an X before the U in the sections entitled “Interpersonal Relations” and “Judgment.” Id. As far as completeness, Dunn points out that the document states to “see packet” for “dates of past warnings, ” but no packet is attached to the exhibit. Id.

         NCC argues that Dunn offers no proof of his claim, and it “strongly objects to any allegation that it attempted to alter a document.” Dkt. 44. It then points out that the evaluation section was completed in red ink and that it attached a color copy to its motion. Id. NCC hypothesizes that perhaps Dunn's printer printed the red ink portion lighter, resulting in a copy that looked whited out. Id.

         The copy of the separation notice that is in the docket is in color. See Dkt. 31-4, Ex. A-29. The only slot that looks like it could have been whited out slightly is the “S” under “Creativity.” See Id. There are Xs and Us next to “Interpersonal Relations” and “Judgment, ” and there is clearly an “X” next to the question “Would you rehire?” Id. However, whether it has actually been altered is a question of fact. That being said, the only slots that Dunn alleges have been altered are “Interpersonal Relations” and “Judgment.” The court need not consider these two categories as spot is marked with an X after the question “Would you rehire?” See Id. Thus, substantively the notice backs up the reasons NCC advances for why it terminated Dunn's employment even if the “Interpersonal Relations” and “Judgment” slots were altered. The objection due to lack of authenticity is OVERRULED AS MOOT.

         As to the objection that the document is incomplete, the remedy for this objection is to complete the document, not strike it. Under Federal Rule of Evidence 106,

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time.

Fed. R. Evid. 106. Generally, under this rule, the court would simply require NCC to submit the packet to which the document refers to ensure the information in considered in its complete form. However, NCC did not respond to Dunn's objection under the doctrine of optional completeness, and it did not submit the packet to complete the exhibit. The court cannot determine whether it ought to in fairness consider the packet without having the opportunity to review the packet.

         However, Dunn himself relies on this allegedly incomplete exhibit in his response to the motion for summary judgment. Dkt. 36 at 7; see Dkt. 36, Ex. 17 (the separation notice). Since Dunn relies on and attaches the exhibit himself as summary judgment evidence, his motion to strike the exhibit because it does not include the packet is OVERRULED.

         H. Exhibit A-30

         Exhibit A-30 is NCC's job description for an “Assistant Coupling Supervisor.” Dkt. 31, Ex. A-30. Dunn contends that this document cannot be authenticated and was prepared solely for the purpose of summary judgment. Dkt. 36. He also argues that it is undated, the print is new, and the font on pages three to four is different than the font on pages one and two. Id. He argues that the “authenticity of the document having been questioned, the Court must strike the document from the record.” Id.

         NCC argues that none of these allegations support Dunn's assertion that this document was prepared for the motion for summary judgment. Dkt. 44. It additionally contends that the font does not change within the document and that perhaps Dunn had a problem with his printer. Id.

         Like NCC, the court does not perceive a change in font within the document. See Dkt. 31, Ex. A-30. Nothing other than Dunn's conclusory assertion that the document was prepared in anticipation of the motion for summary judgment supports his suspicion that it was so prepared. Waggoner, who is a human resources manager with NCC, stated in the context of discussing the person who was promoted to Assistant Coupling Test Supervisor during Dunn's tenure that “Exhibit A-30 is a true and correct copy of the job description for the Assistant Coupling Test Supervisor position.” Dkt. 31, Ex. A ¶ 40. This is sufficient to authenticate the job description. Dunn's objection is OVERRULED.

         I. Exhibit G-1

         Exhibit G-1 is attached to the affidavit of Katherine G. Cisneros, who is an attorney for the firm representing NCC. Dkt. 31, Ex. G. It is a transcript of a recorded conversation between Dunn, Tipton, and Waggoner. Id. The recorded conversation was provided to NCC by Dunn during discovery, and NCC's counsel had the recording transcribed. Id. The transcript notes that it is “based upon the recording as heard on the particular electronic equipment provided, the speaking speed, and the content of the conversation as understood by the reporter.” Dkt. 31, Ex. G-1. Dunn takes issue with this disclaimer, asserting that it does not indicate it is an accurate reproduction of the recorded conversation. Dkt. 36.

         Dunn cites United States v. Rochan, 563 F.2d 1246, 1251 (5th Cir. 1977), to support his assertion that the transcript must state that it is an accurate representation. In Rochan, a criminal case that proceeded to trial, the government had supplied the jury with transcripts of tape-recorded conversations between alleged co-conspirators. 563 F.2d at 1251. The tapes had been transcribed by a government stenographer, and the judge advised the jury that the transcripts “were merely the government's version of what had happened.” Id. A person who participated in the conversations on the tapes testified that the transcripts were accurate, but the stenographer did not testify. Id. On appeal, the convicted defendants argued that the transcripts were not properly authenticated. Id. The court held that “there must be some evidence that the transcripts are accurate[, ] that the words are accurately reproduced[, ] and the voices [are] accurately identified.” Id. The court was discussing these transcripts as being supplemental to the tape, which the jury had heard. Id. It held that the foundation may be laid by having the person who prepared the transcripts testify but that this “testimony is unnecessary if someone else who either heard the tape or participated in the conversation assumes the task.” Id. at 1252.

         Here, the court has not been provided with the actual recordings, so Rochan, which deals with supplemental transcripts, is not on point. In the current case, the court finds it notable that Dunn takes issue with whether the disclaimer is proper, yet he does not point out any alleged discrepancies between the transcripts and the tape or provide the court with a copy of the tape. Under Federal Rule of Civil Procedure 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.” Fed.R.Civ.P. 56(c)(2). Here, since the tapes themselves will be available to play for the jury and Dunn does not object to any alleged discrepancies in the transcription, he appears to be placing form over substance. There is no indication that the information contained in the transcript will not be admissible in evidence at trial. Accordingly, Dunn's objection is OVERRULED.

         III. Motion for ...

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