Opinion
CIVIL ACTION NO: 03-0614
November 25, 2003
ORDER AND REASONS
This matter was referred to the undersigned United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c). Presently before the Court are two motions filed by the defendant.
Rec. Doc. No. 6.
On September 23, 2003, the defendant, Terrebonne Parish Consolidated Government, filed a Motion for Summary Judgment (doc.#9) seeking a dismissal of the plaintiff's claims with prejudice. On October 28, 2003, the defendant filed a Motion to Strike Portions of the Declarations Submitted by Plaintiff in Opposition to Defendant's Motion for Summary Judgment (doc. #13) seeking an order striking Paragraphs 8, 10, and 14 of Henry L. Randolph's Declaration; Paragraphs 8 through 11 of the declaration of Michael D. Jones; and Paragraphs 8 through 10 of the declaration of Hayward Sims, Jr., submitted by the plaintiff in opposition to the defendant's motion for summary judgment. The plaintiff opposes both motions. I. Background A. Factual
The plaintiff, Henry L. Randolph ("Randolph"), filed the instant suit pursuant to Title VII of the Civil Rights Act of 1964 claiming that the defendant, Terrebonne Parish Consolidated Government ("Terrebonne Parish"), discriminated against him on the basis of race in terminating his employment. Randolph, an African-American male, was employed by Terrebonne Parish from January 31, 1982 until October 2, 2000. During this time, Randolph worked at the Houma-Terrebonne Fire Department ("Fire Department"). Randolph was terminated for allegedly violating work rules of the Fire Department. During his tenure at the Fire Department, Randolph held the positions of Firefighter, Fire Equipment Operator and Fire Captain. At the time of his termination in October of 2000, Randolph had been Fire Captain for approximately 2 years.
Terrebonne Parish Consolidated Government is the entity responsible for the operation of the Houma-Terrebonne Fire Department.
The Fire Department terminated Randolph's employment in June of 1984 and rehired him in September of 1990, as part of a settlement of a legal action in which Randolph claimed he was discriminated against because of his race. See Rec. Doc. No. 1, Plaintiff's Complaint, ¶ V.
On July 2, 2001, Randolph filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that he was discriminated against because of his race when he was discharged from his Fire Captain position with the Houma-Terrebonne Fire Department on October 2, 2000. Further, Randolph claims that prior to this discharge, he was subjected to unequal terms and conditions of employment most recently with regard to being ordered to assign his crew (all black) to paint a bathroom at the Central Fire Station.
See Rec. Doc. No. 9, Defendant's Motion for Summary Judgment, Exhibit 1.
1. Painting the Fire Station
While employed at the Fire Department, part of Randolph's job duties included maintaining the Central Fire Station in satisfactory condition. Each of the five fire stations would take turns cleaning the Central Fire Station. During Randolph's employment, the City of Houma Fire Department undertook to overhaul its Central Fire Station. The overhaul included painting the fire station. Randolph and his crew were assigned the task of painting the bathroom at the Central Fire Station.
See Rec. Doc. No. 9, Defendant's Motion for Summary Judgment, Exhibit 35, Affidavit of Brian P. Hebert, Fire Chief of the City of Houma Fire Department.
In addition to Randolph, other employees of the Fire Department that hold the same rank as Randolph, Captain, were assigned to paint other portions of the Central Fire Station. These employees included Brian LeBouef (white), Jerry LaBouve (white), Vernon Applewhite (white), Joe Mouton (white), Darin Leedy (white), Dave Domangue (white), Hayward Sims (black), Todd Durene (white), Terry Leonard (white), and Oswald Stoufflet (white).
See id.
Randolph alleges that he did not volunteer to paint the central station, but was ordered to do so. He further alleges that the then Acting Fire Chief, Daniel Turner, threatened Randolph's crew with insubordination if they did not paint the bathroom.
See Rec. Doc. No. 11, Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, p. 3.
2. Fire at 203 Roselawn Drive, Houma, Louisiana
On August 27, 2000, a fire occurred at 203 Roselawn Drive in Houma, Louisiana. Randolph's crew was the first to arrive at the scene. Randolph was near the doorway of the burning house with the fire hose, when shortly thereafter Captain Joe Mouton ("Mouton") (white) arrived on the scene to assist Randolph in advancing the line into the house. It is standard operating procedure for the Department for two firefighters to operate a water hose before entering a burning building.
See Rec. Doc. No. 9, Defendant's Motion for Summary Judgment, Exhibit 35, December 11, 2000, Civil Service Hearing Testimony of Assistant Fire Chief, Daniel Turner, pp. 51-53.
Randolph states in his affidavit that he motioned for Mouton to advance the line with him, and he felt like Mouton was intentionally holding back on the line, and that Mouton threw the line down and went around to the left side of the house. District Chief Dana Wallace ("Wallace") testified that when he observed Randolph walking away from the fire, he asked him what the problem was. Wallace further testified that Randolph reported to him that he felt like Mouton was holding back on the line. At the same time, Randolph was taking his gear, air pack and helmet off.
See Rec. Doc. No. 9, Defendant's Motion for Summary Judgment, Exhibit 3, December 12, 2000, Civil Service Hearing Testimony of Assistant Fire Chief, Daniel Turner, pp. 51-53.
After Randolph walked away from the fire, Captain Mouton and Captain Applewhite made the interior attack on the fire from the front of the house. Captain Applewhite testified that he noticed Captain Mouton standing in the front of the house alone with the fire hose, and he thereafter went to assist him. They entered the house and began to extinguish the fire in the front room and proceeded into the middle rooms of the house, and continued to do so until Captain Mouton's low air bell began to ring. Afterwards, they went to have their air bottles replaced so they could return to fighting the fire.
Besides Randolph's Affidavit, none of the witnesses at the scene of the fire testified that Captain Mouton dropped the line and walked away.
See Rec. Doc. No. 9, Defendant's Motion for Summary Judgment, Exhibit 4, December 13, 2000, Civil Service Hearing Testimony of Captain Vernon Applewhite, p. 76.
Randolph remained at the scene of the fire throughout its entirety. At some point after ceasing to fight the fire, Randolph collected the basic information about the fire on the information clipboard from the woman who lived in the house.
After the fire incident, Randolph was placed on administrative leave with pay pending an investigation into the events. Statements were taken from various individuals present at the scene, all of whom stated that Randolph stopped fighting the fire in the middle of the fire. A pre-termination hearing was conducted on October 2, 2000, which resulted in Randolph's termination on the same date. The Department found that Randolph violated the regulations, policies, and standards of the Houma Fire Department.
The specific reasons listed by the appointing authority for the termination of Randolph's employment were: 1) unwillingness or failure to perform duties of position in a satisfactory manner; 2) deliberate omission of an act that was his duty to perform; 3) commission or omission of an act to the prejudice of departmental service or contrary to public interest or policy; 4) violation of Houma Fire Department regulation requiring all members to take appropriate action toward aiding fellow member(s) exposed to danger; 5) violation of regulation requiring all members to perform their duties as required or directed by law, department rule, policy or order, or by order of a ranking officer; 6) violation of regulation requiring the first officer to arrive at the scene of an alarm to assume responsibility for the saving of lives, containment of fire, and extinguishing of fire. See Rec. Doc. No. 9, Defendant's Motion for Summary Judgment, Exhibit 18, p. 4.
After his termination, Randolph appealed the decision to the Civil Service Board for the Parish of Terrebonne. Following the hearing, which lasted several days, the Board upheld Randolph's termination. Randolph then appealed his termination to the 32nd Judicial District Court, which also upheld the termination. Thereafter, Randolph appealed to the First Circuit Court of Appeals and the Court upheld the termination.
II. Instant Motions A. Motion for Summary Judgment
Terrebonne Parish filed the instant motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. In the motion, the defendant argues that Randolph cannot establish the necessary elements for a Title VII claim because Randolph has not shown that white employees were treated differently under nearly identical circumstances. The defendant argues that Randolph cannot show that he was discriminated against regarding the painting assignment because the evidence shows that nine white fire captains were assigned to paint areas of the Central Fire Station along with Randolph. Further, the defendant argues that even though no firefighter has ever walked away from a fire as Randolph did, if they had engaged in similar conduct, they would have been fired.
Randolph opposes the motion arguing that the Court should not grant summary judgment because there are genuine issues of fact as to whether the defendant discriminated against the plaintiff on the basis of race. Further, Randolph argues that he did not violate the department's work rules. Finally, Randolph argues that there are genuine issues of material fact as to whether the defendant's stated reason for his termination are pretext for discrimination.
B. Motion to Strike
The defendant further filed a motion to strike portions of certain affidavits submitted by Randolph in his opposition to the motion for summary judgment. The defendant argues that the objectionable portions of the declarations are not based on personal knowledge, are conclusory and based on hearsay, and are not relevant to the issues raised in the defendant's motion for summary judgment.
Randolph opposes the motion arguing that all three declarants have held or are holding supervisory positions with the Department and are competent to give testimony regarding disciplinary actions. Randolph further asserts that the defendant objects to this evidence because it creates material issues of fact that defeat its motion for summary judgment. Finally, Randolph argues that evidence of race discrimination against other African Americans at the Department is relevant to Randolph's individual case.
III. Legal Standards A. Motion to Strike
The defendant has moved to strike portions of the affidavits of Henry Randolph, Michael D. Jones and Hayward Sims, Jr., submitted by the plaintiff in his opposition to the motion for summary judgment. The defendants have cited the Federal Rules of Civil Procedure, specifically Rule 56(e), as a basis for the inadmissibility of portions of the affidavits. Before considering the merits of the motion for summary judgment, the Court must consider the motion to strike portions of certain affidavits Randolph filed in support of the opposition to the motion for summary judgment.
Under Rule 56(e) of the Federal Rules of Civil Procedure, an affidavit opposing or supporting a motion for summary judgment must be based on personal knowledge, set forth facts that would be admissible in evidence, and they must show affirmatively that the affiant is competent to testify to the matters stated therein. Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 194 (5th Cir.), cert. denied, 488 U.S. 926 (1988) (citing Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987)). Further, hearsay affidavits cannot be considered a substitute for personal knowledge. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988).
1. The Affidavit of Henry Randolph
The defendant asserts that the following portions of Randolph's affidavit are objectionable:
1) Paragraph 8 which states: "Other than our crew being ordered to paint, all painting that I observed being done on the Central Fire Station was done by on duty fire station crews who volunteered to paint.";
2) Paragraph 10 which states: "At the time the fire at Roselawn Avenue, I understood that Captain Mouton did not want to work with me. Brian Hebert told me that."; and
3) Paragraph 14 which states: "I have observed that African American firemen are treated less favorably than white firemen. For example, I was fired for allegedly not fighting a fire. However, Brian LeBouef and his crew did not respond to a call on Norman Street. He was not disciplined for his failure to act."
Randolph does not indicate how he could have personal knowledge to attest to the facts in Paragraphs 8 or 14. He does not provide the Court with any evidence that all other firemen that were present that day to paint the fire station had volunteered and had not been ordered to paint.
Further, with respect to Paragraph 14, the Court finds that Randolph is not competent to testify to these matters, In his opposition to the defendant's motion to strike, Randolph asserts that because he held a supervisory position and is responsible for disciplining subordinates and attending meetings where discipline is discussed, he is competent to testify on what discipline is given for certain offenses. This assertion is too generalized to qualify Randolph as competent to testify to these matters. Even though Randolph may have attended meetings where discipline was discussed, he does not assert that he attended the meeting where Brian LeBouef's discipline was discussed. Nor does Randolph inform the Court of the reasons Brian LeBouef did not respond to a call and the circumstances surrounding this failure to respond.
Further, Randolph does not provide the Court with any evidence that the disciplinary action, or lack thereof, taken against Brian LeBouef is in anyway similar to the circumstances surrounding Randolph's termination.
With respect to Paragraph 10, this statement is not based on personal knowledge, but upon hearsay, which would be inadmissible in trial. For the foregoing reasons, Paragraphs 8, 10, and 14 are stricken from Randolph's affidavit.
2. Affidavit of Michael D. Jones
The defendant asserts that the following portions of Jones' affidavit are objectionable:
1) Paragraph 8 which states: "All painting that I observed being done on the Central Fire Station was done by on duty fire station crews who volunteered to paint."
2) Paragraph 9 which states: "I have never observed anyone painting on Central Fire Station who was ordered to paint."
3) Paragraph 10 which states: "The last people I observed painting the Central Fire Station were prisoners in the Sheriff's Office Work Release Program."; and
4) Paragraph 11 which states: "I have observed that African American are treated less favorably than white firemen. For example, I was drug tested and received a 90 day suspension for having an accident driving a fire truck to a fire call. Whereas, David Falgout, white, was not disciplined nor drug tested when he had an accident with Engine 5. Also Eddie Berthelot, white, had an accident with Ladder 1, and he was given 24 hours off."
Just as stated above, Jones does not indicate how he could have personal knowledge to attest to the facts in Paragraphs 8 and 9. He does not provide the Court with any evidence that all other firemen that were present that day to paint the fire station had volunteered and had not been ordered to paint. Further, mere observations without more do not equate to actual personal knowledge as to whether other employees have been ordered to paint or volunteered to paint the fire station.
However, the Court finds that there is no valid objection to Paragraph 10 of Jones' affidavit. The Federal Rules of Civil Procedure do not prohibit a declarant from attesting to facts that can be readily observed without any reference to hearsay statements from other individuals confirming the observation.
With respect to Paragraph 11, Jones does not offer the Court specific facts about either of the incidents he refers to where the defendant allegedly disciplined these employees differently because of race. Even though Jones has personal knowledge to attest to the fact that he had an accident and was drug tested, he could not have personal knowledge to attest to the punishment David Falgout and Eddie Berthelot received as a result of their accidents.
Any such knowledge of these circumstances would be derived from hearsay statements. Further, these incidents are not probative of whether the Fire Department acted in a discriminatory manner in terminating Randolph's employment. For the foregoing reasons, Paragraphs 8, 9, and 11 are stricken from Jones' affidavit.
3. Affidavit of Hayward Sims, Jr.
The defendant asserts that the following portions of Sims' affidavit are objectionable:
1) Paragraph 8 which states: "Other than our crew being ordered to paint, all painting that I observed being done on the Central Fire Station was done by on duty fire station crews who volunteered to paint."
2) Paragraph 9 which states: "I have observed that African American firemen are treated less favorably than white firemen. For example, I was drug tested for having an accident when my fire truck was damaged while it was parked (another vehicle ran into it). Whereas, David Falgout, white, was not disciplined nor drug tested when he had an accident with Engine 5."; and
3) Paragraph 10 which states: "Captain Randolph was fired for allegedly not fighting a fire. However, Captain Gary Trahan, white, with Engine 3 did not fight the fire, nor did he respond to the fire at Bonn Terre Village on Main Street in Houma. He was not disciplined for his failure to act."
For the same reasons stated above, these portions of Hayward's affidavit fall short of the requirements of Rule 56(e), that the affidavit be made on personal knowledge, that the affiant show affirmatively that he is competent to testify to such matters, that the evidence would be admissible in trial, and that the affidavit set forth specific facts showing a genuine issue for trial. For the foregoing reasons, Paragraphs 8, 9, and 10 are stricken from Hayward's affidavit.
B. Motion for Summary Judgment
Summary judgment is proper if the evidence shows the existence of no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears the initial responsibility of informing the District Court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A party is entitled to Summary Judgment only if the pleadings, depositions, answers to interrogatories, admissions and affidavits before the court at the time of Summary Judgment show that there is no genuine issue of material fact. See Fields v. City of Southern Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Once the moving party carries its burden of proving that there is no material factual dispute, the burden shifts to the non-movant "to show that Summary Judgment should not lie." Hopper v. Frank, 16 F.3d 92, 96 (5th Cir. 1994). While the Court must consider the evidence with all reasonable inferences in the light most favorable to the non-movant, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This requires the non-moving party to do "more than simply show that there is some metaphysical doubt as to the material facts." See id.
The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions, on file,' designate `specific facts showing that there is a genuine issue of fact for trial.'" Celotex Corp., 477 U.S. at 324. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. See Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir. 1995); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994).
IV. Analysis A. Race Discrimination
Under Title VII, "[i]t shall be an unlawful employment practice for an employer (1) . . . to discharge any individual . . . because of such individual's race. . . ." 42 U.S.C. § 2000e-2(a). Absent direct evidence of race discrimination, the Court shall apply the basic framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 (5th Cir. 2000).
Under McDonnell, to survive a motion for summary judgment, a Title VII plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. McDonnell, 411 U.S. at 802-04 (1973). The prima facie case, once established, raises a presumption of discrimination, which the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its actions. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999) (citing Meinecke v. H R Block, 66 F.3d 77, 83 (5th Cir. 1995)). If the defendant satisfies this burden, the plaintiff must prove that the proffered reasons are pretextual. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253(1981). Once a Title VII case reaches the pretext stage, the only question on summary judgment is whether there is a conflict in substantial evidence to create a jury question regarding discrimination. Shackelford, 190 F.3d at 404.
1. Prima Facie Case
Under Title VII, when a plaintiff has been discharged because he violated employment work rules, the plaintiff may establish a prima facie case by showing either that he did not violate the rule or, that if he did, white employees who engaged in similar acts were not punished similarly." Green V. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied, 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102 (1980). In making this showing, Randolph must show that white employees of the Fire Department were treated differently under circumstances "nearly identical" to his own. See Little v. Republic Ref. Co., 924 F.2d 93, 97(5th Cir. 1991). Further, when determining whether employees are similarly situated to the plaintiff for purposes of establishing a prima facie case, "what is relevant is that two employees are involved in or accused of the same offense and are disciplined in different ways . . . " Rhode v. K.O. Steel Castings, Inc., 649 F.2d 317, 322 (5th Cir. 1981).
Here, Randolph attempts to establish a prima facie case of discrimination by arguing that he did not violate the work rules of the Fire Department. Among other things, the regulations of the Fire Department require the first officer to arrive at the scene of an alarm to assume responsibility for the saving of lives, containment of fire, and extinguishing of fire.
See Rec. Doc. No. 9, Defendant's Motion for Summary Judgment, Exhibit 18, p. 4.
Randolph asserts that he did not violate the work rules cited by the defendant on the day of the fire because he remained at the scene of the fire and was willing to return to work had he been ordered to do so. Randolph however, does not deny that he did cease fighting the fire and that he did remove his protective gear and at no time returned to help fight the fire. Randolph further asserts that Captain Mouton refused to work with him in fighting the fire, and this is the reason he stopped fighting the fire.
Construing the evidence in Randolph's favor, even if Randolph remained at the scene of the fire, ready and willing to return to work, and he had an issue with the way Captain Mouton assisted him, the uncontested fact still remains that Randolph stopped performing his job duties by walking away from fighting the fire. The evidence, therefore, does not support Randolph's assertion that he did not violate the work rules cited by the defendant in the personnel action form.
Further, Randolph cannot point to one person who was involved in or accused of ceasing to fight a fire and removing all protective gear during a fire, who was also not terminated as well. The evidence further shows that Captain Mouton continued to fight the fire with Captain Applewhite after Randolph discontinued to do so.
Therefore, the Court finds that Randolph cannot establish a prima facie case of discrimination, In addition, even if Randolph could establish a prima facie case of race discrimination, he cannot establish that the defendant's stated reasons for his discharge are pretext for discrimination.
2. Legitimate Non-Discriminatory Reason for Discharge
Once the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for discharge. See, e.g., Grimes v. Texas Dept. Of Mental Health, 102 F.3d 137, 143 (5th Cir. 1996). The defendant's burden is merely one of production, and the defendant need not persuade the court that it was actually motivated by the proffered reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508 (1993); see also Mayberry v. Vought Aircraft, 55 F.3d 1086, 1091 n. 4 (5th Cir. 1995). If a legitimate, nondiscriminatory reason is offered by the defendant, the presumption of discrimination created by the plaintiff's prima facie case "simply drops out of the picture", and "the ultimate question [is] discrimination vel non" Hicks, 509 U.S. at 511, 518.
Here, the defendant contends that its legitimate reason for discharge is that Randolph violated several of the department's work rules. It is well-established that insubordination is a legitimate non-discriminatory reason for discharging an employee. Hereford v. Odeco Drilling, Inc., 1992 WL 300768, at *4 (E.D. La. Oct. 5, 1992) (citing Swint v. Pullman-Standard, 539 F.2d 77, 105 (5th Cir. 1976)). Thus, if believed, this reason offers sufficient grounds to terminate the plaintiff. On September 2, 2000, Randolph was placed on administrative leave with pay pending an investigation.
On October 2, 2000, after an investigation into the events that took place on August 27, 2000, including obtaining testimony from the individuals who were present at the location of the fire, a decision was made to terminate Randolph's employment. As cited above, the defendant lists several violations committed by Randolph on the day of the fire.
Accordingly, the Court finds that the defendant has sufficiently articulated a legitimate non-discriminatory reason for Randolph's discharge. Thus, Randolph has the burden to adduce evidence that the Fire Department's proffered reason for his termination was merely a pretext for race discrimination.
3. Proof of Pretext
After a Title VII case reaches the pretext stage, the question for summary judgment is whether a rational fact finder could find that the employer discriminated against the plaintiff on the basis of race. Pratt v. City of Houston, Texas, 247 F.3d 601, 606 (5th Cir. 2001) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). "A prima facie case and sufficient evidence to reject the employer's explanation" may permit a trier of fact to determine that an employer unlawfully discriminated, and may therefore be enough to prevent summary judgment. Id. (citing Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 148 (2000)). A plaintiff may demonstrate pretext "either directly by persuading the court that a discriminatory reason more than likely motivated the employer, or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. 248, 253-56.
Randolph makes two primary arguments to support his contention that the defendant's reason for terminating him was pretextual. First, Randolph points out that Assistant Fire Chief, Daniel Turner signed the personnel action form indicating that he recommended termination of Randolph. However, Turner testified during the Civil Service Hearing that he did not recommended termination. Randolph also points out that Turner requested that Randolph undergo a psychological evaluation prior to the Civil Service Hearing regarding Randolph's termination.
Secondly, Randolph argues that because his crew (all black) was ordered to paint the bathroom of the Central Fire Station when no other firefighters were ordered to do so, this is evidence of race discrimination. Randolph further argues that the affidavit testimony submitted in his opposition to summary judgment shows the existence of race discrimination. However, the Court has already determined that portions of the affidavits submitted are not proper summary judgment evidence.
Randolph does not attempt to explain to the Court why the facts that Turner signed a recommendation for Randolph's termination but testified otherwise or that Turner requested Randolph to undergo a psychological evaluation, shows that the decision to terminate Randolph's employment was racially motivated.
With regard to the painting assignment, Randolph does not dispute that nine other fire captains (white), painted portions of the Central Fire Station the same day as Randolph's crew. Therefore, Randolph was not treated any differently than other captains who were not black. The fact that Randolph was ordered to paint is of no consequence because Randolph has not offered the Court any sufficient evidence that every other fire captain that painted that day was not ordered to so. Therefore, Randolph has failed to rebut the defendant's non-discriminatory reason for the termination of Randolph's employment.
V. Conclusion
After a review of the record, the Court finds that are no genuine issues of material fact as to Randolph's Title VII claim of race discrimination. Randolph not only failed to establish a prima facie case of race discrimination, but even if he had, he has not carried his burden by showing that the defendant's legitimate non-discriminatory reason for his termination is mere pretext for discrimination. In sum, based on the summary judgment record, a reasonable juror could not conclude that Randolph was assigned to paint at the Central Fire Station or was terminated because of his race.
Accordingly,
IT IS ORDERED that the Motion to Strike (doc. #13) is GRANTED IN PART and DENIED IN PART as follows:
1. GRANTED to the extent that the defendants seek to strike Paragraphs 8, 10, and 14 of Henry L. Randolph's Declaration; Paragraphs 8, 9, and 11 of Michael D. Jones' Declaration; and Paragraphs 8 through 10 of Hayward Sims, Jr.'s Declaration.
2. DENIED to the extent that the defendants seek to strike Paragraph 10 of Michael D. Jones' Declaration.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (doc. # 9) is GRANTED.