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Jackson v. Trupoint Bank

United States District Court, W.D. Virginia, Abingdon Division

June 12, 2018


          Hilary K. Johnson, Hilary K. Johnson, P.C., Abingdon, Virginia, for Plaintiff.

          G. Bethany Ingle, Littler Mendelson, P.C., Tysons Corner, Virginia, and Kevin M. Kraham, Littler Mendelson, P.C., Washington, D.C., for Defendant.



         The plaintiff in this action asserts a claim of discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. Following discovery, the defendant has moved for summary judgment.[1] Because the plaintiff has failed to establish a prima facie case of discrimination, I will grant the defendant's motion and enter judgment in its favor.


         The defendant has objected to the evidence submitted by the plaintiff in opposition to the Motion for Summary Judgment. Because my rulings on the defendant's objections will affect which facts can be considered in deciding the Motion, I will address the objections first as a threshold matter.

         The exhibits to the plaintiff's Memorandum in Opposition are not accompanied by a declaration or affidavit and were not authenticated by a witness through deposition testimony. The exhibits consist of several employee evaluations of the plaintiff, a document that purports to be the plaintiff's written response to her 2016 evaluation, a Salary Increase Form for Samantha Salyer, a document titled “Notes to File - Angie Jackson - March 29, 2016” that appears to have been written by Garnette Owens, and an email exchange between Owens and the plaintiff dated March 30, 2016. In addition to challenging the authentication of these exhibits, the defendant argues that the documents are inadmissible hearsay.

         After the defendant objected to the admissibility of these exhibits in its reply brief, counsel for the plaintiff filed a declaration stating that all of these documents were produced by the defendant in discovery and are therefore authentic and admissible. The defendant has moved to strike this declaration of counsel, both because it was filed without leave of court and because it is itself inadmissible, as counsel cannot serve as a witness and has no personal knowledge regarding the underlying documents.

         “Only evidence that would be admissible at trial may be considered for summary judgment purposes.” Hunter v. Prince George's Cty., 36 Fed.Appx. 103, 106 (4th Cir. 2002) (unpublished). Federal Rule of Civil Procedure 56(c)(2) allows a party to “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” The rule does not require that the nonmovant actually present the evidence in an admissible form in response to the motion, but only that the documents could be presented in an admissible form at trial. Maurer v. Independence Town, 870 F.3d 380, 384 (5th Cir. 2017) (explaining that following the 2010 amendment of Rule 56, “[a]t the summary judgment stage, evidence need not be authenticated or otherwise presented in an admissible form”). “[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.” Md. Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1251 (4th Cir.1991).

         Although the defendant argues that the documents in question were not authenticated, it does not contend that they are in fact inauthentic or not what they purport to be. The defendant does not suggest, for example, that the employee evaluations or email exchange have been altered or fabricated. I find that the lack of an authenticating affidavit, declaration, or deposition does not render the plaintiff's exhibits inadmissible for purposes of summary judgment.

         I need not consider the declaration of plaintiff's counsel in reaching this conclusion. Regardless of whether the documents were produced by the defendant in discovery or obtained in some other way, there is no suggestion that they are anything other than what they seem. However, because the declaration of counsel was filed without leave of court in violation of Local Rule 11(c)(1), [2] I will grant the defendant's Motion to Strike.

         Nevertheless, the declaration by plaintiff's counsel is not needed for me to assume that the employee evaluations, salary increase form, and email exchange satisfy the requirements of the business records exception to the general prohibition of hearsay evidence. See Fed. R. Evid. 803(6). I agree with the defendant, however, that the plaintiff's response to her 2016 evaluation and the “Notes to File” are inadmissible hearsay. See Fed. R. Evid. 801(c), 802. Owens was not deposed, and neither party has submitted any affidavit or declaration of Owens. The unauthenticated “Notes to File” document, which itself recites hearsay within hearsay, is not an appropriate method of presenting Owens's testimony. It consists largely of recitations of statements that the plaintiff made to Owens. Both the “Notes to File” document and the plaintiff's response to her evaluation are merely attempts to bolster the plaintiff's claim with her own unsworn out-of-court statements. This is not permissible. Therefore, I will not consider these two documents, Plaintiff's exhibits B and E, in deciding the Motion for Summary Judgment.

         The defendant further urges me to disregard statements in the plaintiff's Brief in Opposition that are not supported by citations to record evidence. Rule 56 requires a party to support its assertion of facts by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). To the extent that the plaintiff's brief contains unsupported assertions, I will not consider them in deciding the Motion for Summary Judgment. The recitation of the facts set forth below includes only those facts found in documents that are part of the record and would be admissible at trial.


         The following facts taken from the summary judgment record are either undisputed or, where disputed, are stated in the light most favorable to the plaintiff.

         Plaintiff Angelene Jackson first began working for Miners & Merchants Bank, a predecessor of defendant TruPoint Bank (“TruPoint”), in 1975. She advanced from an entry-level position to an assistant vice president position and then resigned in 1981. She began working for another bank, which through a series of acquisitions eventually came to be owned by TruPoint in 2001. When she became an employee of TruPoint, she was a teller. She advanced to the position of Backup Head Teller and eventually Head Teller.

         From approximately 2012 through 2016, Richard Hughes was the Branch Manager for the Lebanon, Virginia, branch of TruPoint, where Jackson worked. Leslie Perkins became the Branch Manager in October, 2016, and Hughes retired in December 2016.

         In 2015, TruPoint began to implement a Universal Banker certification program that would enable all tellers to perform customer service tasks and all customer service representatives to perform bank teller tasks. Jackson was required to take a test to obtain the Universal Banker certification, and she passed the test on February 23, 2016. The certification would enable her to perform a wider variety of tasks for customers, including tasks that a teller would not normally perform, such as opening checking accounts and accepting loan applications. Her job duties changed after she obtained the Universal Banker certification. When a customer wanted to open an account, Jackson would leave the teller line, accompany the customer into an office, and assist the customer. Previously, as Head Teller, her duties had been limited to those involving the teller line, including training tellers, ordering money, and completing monthly reports. After obtaining the Universal Banker certification, she continued to perform many of those duties but also performed additional duties on what was known as the platform side of the bank's operations, such as opening accounts and taking loan applications.

         Jackson thought that becoming a Universal Banker was a promotion. According to Jackson, Tara Justus told her that she was being promoted, although Justus denies this. Jackson gave up the Head Teller position to become a Universal Banker. She testified at her deposition that she was willing to take the new position to help the bank. She had expected to spend 75 percent of her time in the Universal Banker ...

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