Paula C. Hill v. Oil Dri Corporation ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10680 SEPT 11, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00019-CV-WLS-6
PAULA C. HILL,
BOBBY BATTLE,
RALPH CLARK,
CHARLIE HOMER,
JAMES KNOLTON, SR.,
MICHAEL MIXON,
Plaintiffs-Appellants,
versus
OIL DRI CORPORATION OF GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 11, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
In this employment discrimination action, plaintiffs appeal the district
court’s orders (1) granting summary judgment to Oil Dri Corporation of Georgia
(“Oil Dri”); (2) denying their motion to alter or amend the judgment; and (3)
granting Oil Dri’s motion to strike portions of plaintiffs’ affidavits and exhibits.
After review, we affirm.
I. BACKGROUND
In 1997, plaintiffs Bobby Battle, Ralph Clark, Charlie Homer, James
Knowlton and Michael Mixon, who are African American, filed charges of race
discrimination against their employer, Oil Dri, with the Equal Employment
Opportunity Commission (“EEOC”). Plaintiffs claimed that Oil Dri had paid them
less than white employees and subjected them to different terms and conditions of
employment based on their race. The EEOC investigated. In March and April
1998, the EEOC issued nearly identical determinations finding that it was
reasonable to believe Oil Dri had discriminated against plaintiffs based on their
race in violation of Title VII.
In March 2001,1 plaintiffs filed this action against Oil Dri, asserting, inter
alia, a claim of racial discrimination in violation of 42 U.S.C. § 1981.2 Plaintiffs’
1
Plaintiffs filed their first complaint in January 2000, but dismissed it by consent motion
in September 2000.
2
In addition to § 1981 claims, plaintiffs’ complaint also asserted Title VII claims of racial
discrimination and retaliation and a state law claim of negligence. The district court’s dismissal
2
complaint alleged in general terms that similarly situated white employees were
paid at a higher rate and were afforded better working conditions and privileges.
A. Oil Dri’s Motion for Summary Judgment
Oil Dri filed a motion for partial summary judgment, arguing that plaintiffs’
§ 1981 claims arising prior to March 23, 1999 were barred by Georgia’s two-year
statute of limitations for personal injury actions. In opposition to Oil Dri’s motion,
plaintiffs submitted the same documents and affidavits submitted to the EEOC in
1997. Plaintiffs’ response brief agreed that the two-year statute of limitations
generally applied to § 1981 actions for money damages, but argued that the acts of
discrimination they suffered were “tantamount to” a hostile work environment and
constituted continuing violations. They also argued that their § 1981 claims for
injunctive and declaratory relief were governed by Georgia’s twenty-year statute of
limitations for actions seeking to enforce statutory rights. The district court
granted Oil Dri summary judgment on plaintiffs’ § 1981 claims, finding that they
involved discrete acts and thus plaintiffs’ claims were barred by Georgia’s two-
year limitations period.
B. Plaintiffs’ Motion to Alter or Amend
of the Title VII and state law claims is not challenged on appeal. In addition, the district court
dismissed plaintiff Paula Hill’s Title VII sex discrimination and Equal Pay Act claims. Hill is
not a party to this appeal. Thus, we focus only on plaintiffs’ § 1981 claims.
3
On May 7, 2004, plaintiffs filed a motion to alter or amend the judgment,
arguing correctly that Oil Dri had not moved for summary judgment with regard to
any § 1981 claims arising after March 23, 1999. In response, Oil Dri called to the
district court’s attention the newly decided opinion in Jones v. R. R. Donnelley &
Sons Co., 541 U.S. 369, 124 S. Ct. 1836 (2004), in which the Supreme Court held
that the four-year statute of limitations provided in 28 U.S.C. § 1658 applied to
certain § 1981 claims. Oil Dri argued, however, that the district court’s judgment
should stand because plaintiffs had failed to produce evidence of any adverse
employment actions occurring after March 23, 1997, and therefore plaintiffs’ §
1981 action filed on March 23, 2001 was barred even under the new four-year
limitations period of Jones. In their reply brief, plaintiffs argued for the first time
that the four-year statute of limitations in 28 U.S.C. § 1658 should apply.
The district court granted in part plaintiffs’ motion to alter or amend the
judgment, recognizing that it should not have entered summary judgment sua
sponte on plaintiffs’ claims arising after March 23, 1999 without first giving proper
notice. However, the district court denied plaintiffs’ motion to alter the judgment
to the extent plaintiffs sought to rely on the four-year statute of limitations in §
1658. The district court concluded that plaintiffs waived their right to assert the
four-year limitations period by concurring in their initial summary judgment brief
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that the two-year limitations period applied. The district court altered the judgment
to reflect that the post-March 23, 1999 claims, if any, remained and directed Oil
Dri to file any additional summary judgment motion within ten days.
C. Oil Dri’s Renewed Motion for Summary Judgment
Oil Dri moved for summary judgment as to plaintiffs’ reinstated post-March
23, 1999 claims. Plaintiffs responded, attaching documents originally filed in their
1997 EEOC proceedings as well as the EEOC’s 1998 determinations. Among the
EEOC documents were affidavits filed by each plaintiff with the EEOC and two
unsworn statements of other Oil Dri employees. Oil Dri moved to strike (1) the
unsworn statements; (2) the EEOC’s determinations; and (3) portions of each
plaintiff’s EEOC affidavit, arguing that they contained conclusory allegations,
unsupported opinions and inadmissible hearsay.
The district court granted Oil Dri’s motions to strike the unsworn statements
and the EEOC’s 1998 determinations and granted in part Oil Dri’s motions to
strike portions of each plaintiff’s EEOC affidavit. The district court also granted
Oil Dri summary judgment on the remaining § 1981 claims, concluding that
plaintiffs had failed to establish a prima facie case of racial discrimination.
Specifically, the district court concluded that plaintiffs had failed to present
admissible evidence that they suffered adverse employment actions or that
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similarly situated white employees were treated more favorably. The district court
then entered final judgment in favor of Oil Dri. This appeal followed.
II. DISCUSSION
A. Motion to Alter or Amend the Judgment
On appeal, plaintiffs argue that the district court abused its discretion in
denying their motion to alter or amend the judgment as it related to the four-year
statute of limitations. We disagree.
Federal Rule of Civil Procedure 59(e) permits a district court to alter or
amend a judgment after it has been entered. Fed. R. Civ. P. 59(e).3 Rule 59
motions “should not be used to raise arguments which could, and should, have
been made before the judgment was issued.” O’Neal v. Kennamer, 958 F.2d 1044,
1047 (11th Cir. 1992). The denial of a Rule 59 motion raising new arguments is
“especially soundly exercised when the party has failed to articulate any reason for
the failure to raise [an] issue at an earlier stage in the litigation.” Id. (quoting
Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990)).
Prior to 1990, federal courts applied the most analogous state statute of
limitations to § 1981 claims. See Goodman v. Lukens Steel Co., 482 U.S. 656,
3
“The decision to alter or amend a judgment is committed to the sound discretion of the
district court,” and we “will not overturn a denial of a Rule 59 motion absent abuse of
discretion.” O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992).
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660-61 (1987). However, in 1990 Congress enacted 28 U.S.C. § 1658(a), which
created a “catch-all” four-year limitations period for federal claims created after
that date. See 28 U.S.C. § 1658. One year later, in the Civil Rights Act of 1991,
Congress amended § 1981 to include claims of discrimination in terms and
conditions of employment. See 42 U.S.C. § 1981.
When Oil Dri’s summary judgment motion was filed in September 2003, the
circuits were split on whether § 1658's limitation period applied to § 1981 claims.
Three circuits (the Third, Seventh and Eighth) had held that it did not, but two
circuits (the Sixth and Tenth) had reached a contrary conclusion. Compare Jones
v. R. R. Donnelley & Sons Co., 305 F.3d 717 (7th Cir. 2002); Madison v. IBP,
Inc., 257 F.3d 780 (8th Cir. 2001) and Zubi v. AT&T Corp., 219 F.3d 220 (3d Cir.
2000) with Anthony v. BTR Auto. Sealing Sys., Inc., 339 F.3d 506 (6th Cir. 2003)
and Harris v. Allstate Ins. Co., 300 F.3d 1183 (10th Cir. 2002).
Additionally, this circuit had not yet addressed the applicability of § 1658.
See, e.g., Taylor v. Ala. Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1034
& n.2 (11th Cir. 2001) (acknowledging the issue of § 1658's applicability to § 1981
claims, but declining to address it). Furthermore, by the time summary judgment
briefing began in the fall of 2003, the Supreme Court had already granted certiorari
on May 19, 2003 to review the Seventh Circuit’s decision in Jones. See Jones v. R.
7
R. Donnelly & Sons Co., 538 U.S. 1030, 123 S. Ct. 2074 (2003).
Under these circumstances, plaintiffs could have and should have raised the
applicability of § 1658's four-year limitations period in response to Oil Dri’s
summary judgment motion. Indeed plaintiffs’ Rule 59 opening brief did not raise
the § 1658 issue even though the Supreme Court had ruled three days earlier in
Jones that § 1658's four-year limitations period applied to some § 1981 claims,
including newly cognizable § 1981 claims created by the Civil Rights Act of 1991.
541 U.S. at 377-83, 124 S. Ct. at 1842-45. Accordingly, the district court did not
abuse its discretion in refusing to consider the § 1658 four-year limitations issue
raised for the first time in plaintiffs’ reply brief in support of the Rule 59 motion.
B. Evidentiary Rulings
Plaintiffs also argue that the district court erred in striking portions of their
EEOC affidavits and the EEOC’s determinations.4 We review for abuse of
discretion a district court’s evidentiary rulings. Hall v. United Ins. Co. of Am., 367
F.3d 1255, 1259 (11th Cir. 2004). Plaintiffs have not shown that the district court
abused its discretion in excluding this evidence.
EEOC determinations generally are admissible in bench trials under Federal
4
On appeal, plaintiffs do not challenge the district court’s ruling striking unsworn
statements of other Oil Dri employees submitted to the EEOC.
8
Rule of Evidence 803(8)(C)’s public records exception to the hearsay rule. Walker
v. NationsBank of Fla. N.A., 53 F.3d 1548, 1554 (11th Cir. 1995). However,
“public records, otherwise admissible under Rule 803(8)(C), may nonetheless be
excluded in whole or in part if the trial court finds that they are either irrelevant or
more prejudicial than probative.” Hines v. Brandon Steel Decks, Inc., 886 F.2d
299, 302 (11th Cir. 1989). Here the district court excluded the 1998 EEOC
determinations as irrelevant because they related only to incidents occurring well
before March 23, 1999 and thus did not pertain to the claims at issue on summary
judgment. Given that plaintiffs’ pre-March 23, 1999 claims are time-barred, we
cannot say that the district court abused its discretion in striking the 1998 EEOC
determinations.
The district court also struck portions of each plaintiff’s EEOC affidavit for
failure to comply with Federal Rule of Civil Procedure 56(e). Rule 56(e) requires
affidavits, supporting or opposing summary judgment, to be made on personal
knowledge and to set forth facts that would be admissible evidence. Fed. R. Civ.
P. 56(e). In a thorough order, the district court separately considered each
challenged averment or attachment and gave specific reasons for its ruling with
regard to its admissibility.
On appeal, plaintiffs do not take issue with any of the district court’s rulings
9
with regard to particular averments. Indeed, plaintiffs merely state in one sentence,
unsupported by citation to legal authority, that the district court should have
weighed the affidavits in light of the summary judgment standard and determined
whether they raised a genuine issue of material fact.5 Such a perfunctory statement
is insufficient to challenge the district court’s carefully considered individual
evidentiary rulings. See Doe v. Moore, 410 F.3d 1337, 1349 n.10 (11th Cir. 2005)
(explaining that an appellate brief must not only state contentions, but must also
give reasons for them, with citations to authority and to the record, to preserve an
issue on appeal); Flanigan’s Enters., Inc. of Ga. v. Fulton County, 242 F.3d 976,
987 n.16 (11th Cir. 2000) (explaining that the failure to elaborate upon an issue
raised in an appellate brief or to provide citation of authority in support results in a
waiver of that argument); Fed. R. App. P. 28(a)(9).
C. Section 1981 Claims Arising After March 23, 1999
Finally, plaintiffs challenge the district court’s grant of summary judgment
in favor of Oil Dri on their claims that were not barred by the two-year statute of
5
In contrast, plaintiffs devote several pages of their appeal brief to rejecting Oil Dri’s
argument made in the district court that plaintiffs’ EEOC affidavits should be struck because
they were not produced during discovery. However, this argument was not the basis for the
district court’s decision to strike portions of plaintiffs’ affidavits.
Plaintiffs also challenge the district court’s decision to strike several letters that had been
submitted to the EEOC in support of plaintiffs’ 1997 charges of discrimination. Plaintiffs argue
that these letters were offered as evidence of pretext and are therefore relevant. However, the
district court excluded these letters, not on relevance grounds, but on grounds that they “were
replete with hearsay and conclusory, factually unsupported statements.”
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limitations. Using the now-familiar McDonnell Douglas framework to evaluate
circumstantial evidence cases,6 the district court concluded that plaintiffs failed to
make out a prima facie case of discrimination with regard to these claims. To
establish a prima facie case of disparate treatment under § 1981, plaintiffs were
required to show that: (1) they were members of a protected class; (2) they were
subjected to adverse employment actions; (3) similarly situated employees who
were not members of their protected class were treated more favorably; and (4)
plaintiffs were qualified for the job or job benefits they were denied. Gillis v. Ga.
Dep’t of Corr., 400 F.3d 883, 887 (11th Cir. 2005).
Here, the district court concluded that plaintiffs failed to present admissible
evidence of any adverse employment actions or of similarly situated white
employees who were treated more favorably. We agree. Plaintiffs’ only evidence
of adverse employment actions or white comparators was the vague and
conclusory statements contained in the portions of their EEOC affidavits struck by
the district court. As we have already discussed, the district court did not abuse its
discretion in striking this material from the record.
Furthermore, even if these affidavits had been considered, Oil Dri still would
have been entitled to summary judgment. A plaintiff cannot defeat summary
6
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
11
judgment by relying upon conclusory allegations of discrimination. See Holifield
v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997). To survive summary
judgment, opposing affidavits must set forth specific facts showing that there is an
issue for trial. See Fed. R. Civ. P. 56(e); Leigh v. Warner Bros., 212 F.3d 1210,
1217 (11th Cir. 2000). Plaintiffs’ EEOC affidavits were too conclusory and
lacking in specific facts to create genuine issues of material fact as to whether they
suffered adverse employment actions or whether white employees were similarly
situated. See Leigh, 212 F.3d at 1217 (stating that unsupported conclusory
statements have no probative value in opposing summary judgment). Because
plaintiffs failed to make out a prima facie case, the district court properly entered
summary judgment on their claims arising after March 23, 1999.
III. CONCLUSION
For these reasons, we affirm the district court’s grant of summary judgment
in favor of Oil Dri on plaintiffs’ § 1981 claims, the district court’s evidentiary
rulings and the district court’s denial of plaintiffs’ motion to alter or amend the
judgment.
AFFIRMED.
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