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Simpson v. Home Depot U.S.A., Inc.

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

May 2, 2018

JERRALD SIMPSON PLAINTIFF
v.
HOME DEPOT U.S.A., INC. DEFENDANT

          ORDER

          MICHAEL P. MILLS U.S. DISTRICT COURT

         This cause comes before the court on the motion of defendant Home Depot U.S.A, Inc. for summary judgment, pursuant to Fed.R.Civ.P. 56. Plaintiff Jerrald Simpson has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motion is not well taken and should be denied.

         This is a race discrimination action, filed pursuant to Title VII and 42 U.S.C. § 1981, in which plaintiff, an African-American male, seeks recovery arising out of his January 2016 termination as an assistant manager at the Horn Lake Home Depot. Plaintiff began working at Home Depot in May 2013, and defendant contends that he began “experiencing performance and behavioral issues” soon thereafter. For his part, plaintiff contends that his firing was the result of racial animus against him on the part of the two white individuals who served as managers of the Horn Lake store during his tenure, namely Josiah Cocke and Drew Gentry. Cocke served as store manager during most of plaintiff's tenure, until he transferred to another store and was replaced by Gentry in May 2015. As discussed below, plaintiff has offered testimony from two of his former co-workers, which defendant seeks to exclude on hearsay and other grounds, that Cocke and Gentry promised, respectively, to “get rid of that nigger” and to “fire [plaintiff's] black ass.” Plaintiff argues that this proof suffices to establish that race was a motivating factor in the decision to fire him, but defendant disagrees and seeks summary judgment, arguing that no genuine issue of material fact exists regarding its liability and that it is entitled to judgment as a matter of law.

         In considering Home Depot's summary judgment motion, it strikes this court that defendant largely seeks to prevail in this case through motions in limine. That is, defendant argues that plaintiff's evidence that race may have been a motivating factor in his termination is inadmissible and that, for that reason, he lacks proof of racial discrimination in this case. However, this court concludes, for the reasons discussed below, that plaintiff's most important evidence of race discrimination is, in fact, admissible, and that genuine fact issues accordingly exist regarding whether race was a motivating factor in his termination. This court notes at the outset that the less-stringent “motivating factor” standard is, in fact, applicable to plaintiff's Title VII claim, and this makes his burden of surviving summary judgment easier than it would be under a “but for” causation standard. Indeed, this standard is sufficiently lenient that, if Cocke and Gentry's aforementioned alleged statements are deemed admissible, then the existence of potential liability on Home Depot's part seems rather clear to this court. In its brief, defendant spends considerable effort in documenting alleged performance deficiencies on plaintiff's part, but these deficiencies are largely contested by plaintiff, and, at any rate, do not serve to negate fact issues regarding whether race was at least a motivating factor in his firing.

         Having highlighted the importance of Cocke and Gentry's alleged statements in this case, this court now turns to defendant's arguments that they are inadmissible. This court will consider Gentry's statement first, since he was the manager who made the decision to fire plaintiff, and his motivations are thus of obvious (and uncontested) importance in this case. In arguing that Gentry's decision to fire him was at least partially motivated by racial animus, plaintiff relies upon the deposition testimony of Sharieka Wilson, a former department supervisor at Home Depot. In her deposition, Wilson testified that she personally saw a text message from Gentry to a supervisor (later identified as Tracy Parnell) in which Gentry discussed an intent to fire plaintiff's “black ass.” Specifically, Wilson testified that:

Wilson: So, with that, there was one incident where the other department supervisor, she showed me a text message of Drew, the store manager, stating some stuff that, in my opinion, shouldn't have been, you know, sent to another employee, regarding Jerrald and all of that, so.
Q. And what did that text message say?
Wilson: They were going back and forth regarding some things that they weren't -- I can't remember exactly, word for word, but there were some things that were going back and forth stating that, you know, Jerrald had done, or some stuff that people didn't like, you know, of Jerrald's management. And Drew had mentioned that -- in the text message that for that department supervisor not to worry because he would be fired, his black ass would be term -- you know, be
Q. Did you see -- actually see with your own eyes a text from Drew when it talks about firing his black ass, referring to -
Wilson: Yes, sir.
Q. -- Jerrald Simpson?
Wilson: Yes, sir.
Q. Do you recall approximately when that was? In relation to his termination, how long was it before his termination?
Wilson: I'm not exactly sure. It wasn't -- it wasn't long from his termination. It wasn't like, you know, this happened a year ago and then, you know, he got terminated. It wasn't that. It was -- I can't say, you know, like within the, you know -- it was - I can't recall. So I can't -- I don't want to say exactly when. Or, you know, I can't say when it happened, because I'm not exactly sure.

[Wilson depo. at 15-16].

         Defendant argues that the above testimony presents inadmissible hearsay evidence, but this court disagrees. In so stating, this court first notes that it regards Wilson's deposition testimony as an indication of how she will testify at trial. Wilson is a crucial witness in this case, and this court assumes that she will, consistent with her deposition testimony, provide sworn in-court statements at trial that she personally saw a text message from Gentry regarding an intent to fire plaintiff's “black ass.” Assuming that Wilson does so testify at trial, this court concludes that such testimony would offer only one out-of-court statement, namely Gentry's “black ass” remark, and that this statement would not be hearsay for multiple, independently-sufficient reasons.

         First, Gentry's statement is clearly an admission by a party opponent, since the Federal Rules of Evidence provide that statements are not hearsay if “offered against an opposing party . . . made by the party's agent or employee on a matter within the scope of that relationship and while it existed.” F.R.E. 801(2)(D). This court can discern no good reason why this would not apply to Gentry's alleged statement. Moreover, to the extent that Gentry's alleged statement expresses an intent or plan on his part to fire plaintiff, this would clearly seem to fall under the scope of F.R.E. 803(3)'s exception for statements of the “declarant's then-existing state of mind (such as motive, intent, or plan).” Moreover, the term “black ass” is, in the court's view, the most important part of Gentry's alleged statement, and it is clearly being introduced to show Gentry's state of mind, namely that he had a racial-based mindset in wanting to fire plaintiff. As such, it is clearly not being offered to prove the truth of the matter asserted, particularly since it is undisputed that Gentry did, in fact, fire plaintiff.

         In its reply brief and motion in limine, Home Depot argues that:

The text message itself is considered hearsay. . . . However, Plaintiff alleges the text message itself is admissible as an admission by a party opponent. Even if this is true, it was then relayed by Shay Wilson, which is another level of hearsay, or double hearsay. Double hearsay is only admissible if an exception applies to each layer of hearsay. Ms. Wilson, a former hourly associate with Home Depot, is not a party opponent. There is no hearsay exception for Ms. Wilson's testimony relaying the alleged content of the text message. Therefore, such text message is not admissible and should not be considered as direct evidence or any evidence.

[Defendant's reply brief at 6 (citations omitted)].

         Thus, defendant offers no real response to the argument that Gentry's text message is an admission by a party opponent, and it seems clear that this is the case. Defendant argues that an additional layer of hearsay exists because the statement was “relayed by Wilson, ” who no longer works for Home Depot.[1] Once again, however, this court regards Wilson's deposition as an indication of how she will testify at trial. Hearsay is defined by the Federal Rules of Evidence as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Civ.P. 801(c). It seems clear that, any time a litigant uses the deposition testimony of a witness such as Wilson in the context of a summary judgment motion, it is utilizing statements that the declarant “does not make while testifying at the current trial or hearing.” This does not mean, however, that, in deciding whether triable fact issues exist in this case, this court must disregard the possibility, indeed the strong likelihood, that Wilson will appear at trial and testify that she personally saw a text message from Gentry expressing an intent to fire plaintiff's “black ass.” Assuming such testimony is provided by Wilson at trial, it would clearly represent a non-hearsay statement “at the current trial.”

         If it should develop that Wilson does not testify at trial, then this would, in fact, appear to render her deposition testimony hearsay under the definition set forth in 801(c). In that eventuality, this court would consider arguments regarding whether any hearsay exception applies to such statements, such as under Fed.R.Evid. 804(b)(1)'s exception for deposition testimony by witnesses whose attendance at trial cannot be procured “by process or other reasonable means.” This Rule 804 exception illustrates that the admissibility of deposition testimony at trial cannot, generally speaking, be definitely resolved at the summary judgment stage, since the question of whether deposition testimony is hearsay may depend upon factors such as whether the deponent is available to testify at trial, and, if not, why not.

         This court will not prejudge these issues, but it does consider it appropriate to regard Wilson's deposition testimony as evidence of how she will testify at trial, and, so considered, it supports plaintiff's contention that triable fact issues exist regarding Gentry's motivations in firing her. This court notes that, factually speaking, there is conflicting evidence in the record regarding the reliability of Wilson's account of what Gentry said in his text message. Rodney McCraney, a former department head at the Horn Lake store, testified that Wilson told him about the alleged text message while they were working together at the store, stating that:

Q: Were you aware of any racial text messages sent by Drew in regard to Jerrald Simpson?
McCraney: The one that Shay told me about that she got from -- that Tracy showed her.
It was "I'm going to get rid of his black ass, " or something of that nature.
Q: But you never saw that?
McCraney: I never saw it, no.
Q: But Shay told you about it?
McCraney: Yes.

         [McCraney Depo. at 16]. Clearly, if the jury believes McCraney's testimony that Wilson made contemporaneous complaints to him about Gentry's alleged text message, then this would make it less likely to conclude that this was simply something which she fabricated to assist plaintiff in this lawsuit.

         For its part, Home Depot has submitted a sworn declaration in which Parnell denies that she ever received the alleged text message from Gentry. Thus, there is conflicting evidence on this point, which is clearly a fact issue for the jury's resolution. Defendant may seek to argue that former Home Depot employees such as Wilson harbor a grudge against the company, but plaintiff could similarly argue that a current Home Depot employee such as Parnell would have every motivation to offer helpful testimony in support of her current employer. Evaluating the credibility of witnesses is a classic jury function, and it would clearly be improper for this court to undertake this role on summary judgment. At this juncture, this court must view the evidence in the light most favorable to plaintiff, as the non-moving party, and it must therefore regard Wilson's testimony as being at least potentially credible.

         This court notes that, Gentry's alleged text message aside, there is testimony from multiple employees that he showed a particular interest in hearing negative reports about plaintiff. For example, McCraney testified that, during a roundtable meeting with employees in which plaintiff was absent, Gentry insisted that employees provide evaluations about plaintiff's performance, in a ...


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