United States District Court, W.D. Virginia, Roanoke Division
SANDY G. FLINT, Plaintiff,
ACTION PERSONNEL, INC. and ELIZABETH ARDEN, INC., Defendants.
GLEN E. CONRAD, District Judge.
Elizabeth Arden had previously filed a motion for summary judgment, and plaintiff did not timely respond. On October 31, 2014 - nearly one month after plaintiff's response was due - the court granted Elizabeth Arden's motion for summary judgment, and directed that the case be closed. Dkt. Nos. 40, 41. On November 4, 2014 (and apparently before plaintiff received the court's opinion and order via mail), plaintiff requested additional time to "properly reply" to the summary judgment motion. Dkt. No. 42. In response, the court entered an order allowing plaintiff to file any written "evidence, statements, testimony, or argument that she believes the court needs to properly consider her case." Dkt. No. 43.
Plaintiff has now filed her written response, Dkt. No. 44, and Elizabeth Arden has filed its reply. Dkt. No. 45. To the extent plaintiff's filing is a motion for reconsideration, it is DENIED. For the reasons discussed herein, the court concludes that summary judgment in Elizabeth Arden's favor remains proper. Thus, it declines to vacate its prior opinion and order granting summary judgment and reaffirms judgment in favor of Elizabeth Arden.
The court's prior opinion sets forth the factual and procedural background of the case. See Dkt. No. 40 at 2-10. The court will not restate most of that background herein and assumes the reader's familiarity with it. Instead, this opinion will summarize briefly the court's prior ruling and then focus primarily on the factual allegations and arguments raised in the two new filings. See Dkt. Nos. 44, 45.
In its prior opinion, the court addressed Flint's two claims: (1) a claim of hostile work environment based on the alleged sexual harassment of a co-worker, Dorrell Washington; and (2) a claim that Elizabeth Arden retaliated against her when it terminated her placement, which led to her subsequent termination from Action Personnel ("Action"). As to the first, the court granted summary judgment in favor of Elizabeth Arden on the grounds that the harassment was not sufficiently severe or pervasive to constitute a hostile work environment. As to the retaliation claim, the court concluded that the record contained "insufficient evidence from which a reasonable jury could conclude that the but-for cause of Flint's termination was retaliation for her complaints of harassment by Washington... The undisputed facts in this case show that Lane, who alone made the decision to terminate her assignment, made that decision based on her repeated confrontations and attitude toward her immediate supervisor and others." Dkt. No. 40 at 17.
Characterization and Treatment of Plaintiff's Filing
As noted, Flint did not timely respond to the summary judgment motion, but has now filed a document containing arguments as to why summary judgment is improper. Flint's filing consists of eleven pages of argument and purported facts, mostly directed toward refuting the facts set forth in the court's prior opinion. See Dkt. No. 44 at 10. The eleven-page document is signed by Flint, but not verified or otherwise sworn. Flint has also filed three attachments that are typed statements of purported witnesses, but are all unsigned and unsworn.
In its response, Elizabeth Arden argues that Flint's filing should be construed as a motion to alter or amend judgment under Fed.R.Civ.P. 59, and contends that plaintiff has failed to establish her entitlement to relief under that rule. The court agrees that Flint has not stated grounds for relief under Rule 59(e) and thus will deny her motion for reconsideration. See Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (grounds for relief under Rule 59(e) are: "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice"). Inasmuch as the court concludes that summary judgment in Elizabeth Arden's favor is proper even if Flint's filing is considered a summary judgment response, however, the court will also analyze the summary judgment motion anew in light of any new evidence contained in her filing.
The court's next inquiry is whether the filing contains any competent summary judgment evidence that the court may consider. The three statements by purported witnesses are neither signed nor sworn, and thus cannot be considered by the court on summary judgment. Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) ("It is well established that unsworn, unathenticated documents cannot be considered on a motion for summary judgment."); see United States v. White, 366 F.3d 291, 300 (4th Cir. 2004) (unsworn argument does not constitute evidence).
The fact that plaintiff is proceeding pro se does not excuse her failure to follow the rules of court or the requirements governing competent summary judgment evidence. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel"); Hansan v. Fairfax Cnty. School Bd., 405 F.Appx. 793, 794 (4th Cir. Dec. 21, 2010) (unpublished) (pro se status alone does not excuse a failure to comply with the court's orders or procedural rules); see also Dkt. No. 26 at 11-12 (prior order in this case advising plaintiff that despite her pro se status, she would be expected to comply with the rules of the court). Moreover, the Roseboro notice served on plaintiff expressly advised her as to what her summary judgment response must contain, including that she "must set forth [her] version of the facts by offering affidavits (written statements signed before a notary public and under oath) or by filing sworn statements (bearing a certificate for each that it is signed under penalty of perjury)...." Dt. No. 39 at 1-2. Because the three attached statements fail to comply with these requirements, the court cannot consider them. See White, 366 F.3d at 300; Orsi, 999 F.2d at 92.
Flint's eleven-page document differs from the other statements in that it is signed by her, but like those statements, it is not sworn or made under penalty of perjury. For the same reasons set forth above, then, the court could decline to consider the document. Because Flint has signed it - and presumably would swear to its contents - the court will instead consider it and treat certain of the factual allegations as supporting her summary judgment opposition. These include only those facts that are both based on her personal knowledge and that do not conflict with her deposition testimony. See Fed.R.Civ.P. 56(e) (requiring summary judgment affidavits or declarations to be made on personal knowledge and set out facts that would be admissible in evidence); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (party does not create a genuine issue of material fact by ...