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Byest v. Wal-Mart Stores, Inc.

United States District Court, N.D. Mississippi, Greenville Division

August 7, 2014

JOYCE BYEST, Plaintiff,
WAL-MART STORES, INC. a/k/a Wal-Mart Store #0707, Defendant.


DEBRA M. BROWN, District Judge.

This is an employment discrimination action brought by Plaintiff Joyce Byest against her former employer, Defendant Wal-Mart Stores, Inc. Plaintiff alleges that, while employed by Defendant, she was exposed to unlawful sexual harassment and was eventually dismissed in retaliation for having exercised rights protected by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq. Doc. #2. Plaintiff further brings a breach of contract claim based on her allegation that her termination violated one of Defendant's internal policies. Id. On October 7, 2013, Defendant filed a motion for summary judgment seeking dismissal of all claims. Doc. #23.


Initial Matters

Prior to addressing the motion for summary judgment, it is beneficial to resolve four outstanding motions: (1) Defendant's motion for leave to file a supplement to Exhibit "J" to its motion for summary judgment, Doc. #43; (2) Defendant's motion for leave to file extrinsic evidence into the record, Doc. #45; (3) Plaintiff's motion for reconsideration, which Plaintiff incorporated into her response to Defendant's motion to file extrinsic evidence, see Doc. #47; and (4) Defendant's motion to strike, Doc. #49.

A. Motion for Leave to File Supplement

On October 7, 2013, Defendant filed a motion for summary judgment, a memorandum in support, and twenty-five exhibits. Docs. #23, 24. One of Defendant's proffered exhibits, Exhibit J, was a DVD disc containing a video player software program and three playable video files.

On May 29, 2014, Defendant filed a motion for leave to supplement Exhibit "J." Doc. #43. In the accompanying memorandum, Defendant states that, following communication with court staff, [1] it learned that two of the playable video files on the Exhibit J disc were identical. Doc. #44. Defendant submits that the disc is missing a video file and thus seeks leave to submit a new disc. Id. As support for the relief sought, Defendant argues that acceptance of the new file would serve "the interests of justice and judicial economy" and that Plaintiff would not suffer prejudice because she had been served with the file previously. Id. Plaintiff has not opposed the motion within the time allowed.

Upon consideration of Plaintiff's non-opposition, and the judicial interest in obtaining a complete record, the Court will grant the motion for leave to supplement. Doc. #43. The Court deems the copy of Exhibit J submitted to the Court on May 21, 2014, by Defendant to supplement the record.[2]

B. Motion for Leave to File Extrinsic Evidence

On May 23, 2014, the Court issued an order regarding objections Plaintiff made to certain exhibits presented by Defendant's motion for summary judgment. Doc. #42. In its order, the Court found that Plaintiff had raised a meritorious authenticity objection to a document purporting to be a June 2011 "Dismissal and Notice of Rights" issued by the Equal Employment Opportunity Commission to Plaintiff ("June Notice"). Id. However, commensurate with its obligations under Rule 56 of the Federal Rules of Civil Procedure, the Court allowed Defendant an opportunity to submit evidence to authenticate the document. Id.

On June 5, 2014, Defendant filed a motion for leave to file extrinsic evidence. Doc. #45. In its motion, Defendant seeks leave to submit an affidavit from Katherine W. Kores, the EEOC's District Director of the Memphis District Office, in which Kores attests that the relevant document is "a true and accurate copy [of the document] contained in the Commission's investigative file of [Plaintiff's previous charge]." Doc. #45-1. Defendant's motion also seeks a court finding that the June Notice is authentic. Doc. #46 at 2. Plaintiff objects to Defendant's motion on the ground that it does not "resolve questions surrounding... the date on said document." Doc. #47. More specifically, Plaintiff argues that "the date on said document is unclear, and Defendant's submission of said document doesn't clear up the date stamped on said document...." Id.

First, insofar as the Court previously granted Defendant leave to file authenticating evidence, the Court will grant leave to submit the Kores Affidavit for authentication purposes. The Kores Affidavit attached to Defendant's motion for leave is deemed filed for purposes of summary judgment. Next, the Court concludes that the Kores affidavit, which identifies the June Notice as coming from Plaintiff's EEOC file, is sufficient to authenticate the document. See Fed.R.Evid. 901 ("To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."); see also U.S. v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009) ("Testimony by a witness with knowledge that the matter is what it is claimed to be' can be enough to prove the thing's authenticity."). In so holding, the Court notes that, as explained more fully below, the specific day the notice was issued is irrelevant to the disposition of the case.

C. Motion for Reconsideration

In her response to Defendant's Motion for Leave to File Extrinsic Evidence, Plaintiff submitted to the Court an April 10, 2014, order from the Circuit Court of Coahoma County ("State Court Opinion"). Doc. #47-1. In the State Court Opinion, a state court judge reversed a decision by the Mississippi Department of Employment Security ("MDES") Board of Review and held that Plaintiff was not terminated for cause. Id. Plaintiff presents the opinion in the context of requesting reconsideration of this Court's previous decision to overrule her hearsay objection to the admission of written statements taken during Defendant's disciplinary investigation preceding Plaintiff's termination. Doc. #47. In making this argument, Plaintiff notes, without elaboration, that "[t]he Circuit Court of Coahoma County specifically found that Plaintiff had not engaged in misconduct.'" Id.

Local Rule 7(b)(3) provides that "[a] response to a motion may not include a countermotion in the same document." L.U. Civ. R. 7(b)(3)(C). Motions contained in responses may be denied without discussion. See Akon v. Quitman Cnty. Sch. Dist., No. 4:08-cv-146, 2010 WL 780528, at *8 (N.D. Miss. Feb. 26, 2010) ("Plaintiff incorrectly filed her untimely Motion for Summary Judgment in the same document as her Response to Quitman County and Towner's Motion for Summary Judgment. Accordingly, the Court denies Plaintiff's Motion for Summary Judgment as... procedurally barred."). Accordingly, the undersigned denies Plaintiff's motion for reconsideration. Doc. #47.

D. Motion to Strike

Defendant has moved to strike the State Court Opinion. Doc. #49. Because Plaintiff only introduced the State Court Opinion in support of its motion for reconsideration, [3] which this Court has already denied, Defendant's motion to strike will be denied as moot.


Motion for Summary ...

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