United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
J. Lodge United States District Judge
the Court in the above entitled matter are the
Defendant's Motion for Summary Judgment and related
Motion to Strike evidence which have been fully briefed and
are ripe for the Court's consideration. Having fully
reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding further delay, and
because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument,
the Motions are decided on the record before this Court
without oral argument.
AND PROCEDURAL BACKGROUND
Edward Evans brings this employment action against his former
employer, USF Reddaway, Inc. (Reddaway), alleging claims
arising from his termination. In 1996, Mr. Evans was hired by
Reddaway, a commercial transportation company delivering
freight and cargo, as a dock worker. Mr. Evans soon became a
delivery driver at Reddaway's Boise terminal where he
worked for the remainder of his employment until March of
2014 when he was terminated. When Mr. Evans started as a
delivery driver, Reddaway's Boise terminal was not
unionized. Mr. Evans was instrumental in organizing and
unionizing Reddaway employees with the Teamsters in 2006 and
2007 and remained active in the union during his employment.
As a union member, Mr. Evans' employment was pursuant to
a Collective Bargaining Agreement.
of 2013, Mr. Evans became a line driver for Reddaway. In that
position, Mr. Evans drove a standard route from
Reddaway's Boise terminal to Burley, Idaho where he would
connect with another driver and then return to the Boise
terminal. Sometimes Reddaway would alter the route to go
through Twin Falls, Idaho or Snowville, Utah. The scheduled
start time for Mr. Evans' route was 11:00 p.m., meaning
he arrived at his turnaround point in the middle of the
night. Mr. Evans raised concerns about the conditions and
general safety for drivers at the Twin Falls terminal with a
Reddaway manager, the union steward, and the Occupational
Safety and Health Administration (OSHA). Eventually, in
September of 2013, Mr. Evans filed a union grievance relating
to the conditions at the Twin Falls terminal noting the dirt,
dust, gravel, poor lighting, and lack of fencing/security
were unsafe for drivers. (Dkt. 1, Ex. A.) He filed a second
grievance regarding the security of the exterior gate at the
Boise terminal. (Dkt. 1, Ex. B.)
November of 2013, Reddaway management met with union
representatives and Mr. Evans regarding the grievances.
Ultimately, Reddaway agreed to fix the locks at the Boise
terminal and Mr. Evans withdrew the grievances. On February
27, 2014, Reddaway notified Mr. Evans that he was
“relieved from duty pending an investigation for theft
of company time and falsifying documents.” (Dkt. 1, Ex.
C.) Reddaway terminated Mr. Evans employment on March 6, 2014
citing “theft of company paid time” relating to
his having left on his route before his start time, charging
Reddaway for his “wait time” at the turnaround
locations, and charging for his thirty-minute safety break
required by the Department of Transportation (DOT). (Dkt. 1,
result, Mr. Evans filed a complaint with the Secretary of
Labor and has now filed this action raising a federal claim
for retaliation in violation of the Surface Transportation
Assistance Act (STAA), 49 U.S.C. § 31105, and a state
law claim for wrongful discharge in violation of Idaho public
policy. (Dkt. 1.) Mr. Evans challenges the reasons given for
his termination alleging Reddaway dispatchers would often
send drivers on their route earlier than their start times if
the freight was loaded on the truck and the paperwork had
been completed. This resulted in “wait time” at
the turn around point for drivers while they waited for their
connections to arrive from other terminals. Mr. Evans alleges
he received no training, instruction, or any indication that
his billing practices were inappropriate and that other
drivers were not disciplined or terminated for the same
conduct. Instead, Mr. Evans argues, his termination was in
retaliation for his having filed the grievances regarding the
safety concerns at the Boise and Twin Falls terminals.
Motion for Summary Judgment argues both of Mr. Evans'
claims should be dismissed as a matter of law. (Dkt. 22.)
Reddaway also filed a related Motion to Strike. (Dkt. 32.)
The Court finds as follows.
for summary judgment are governed by Rule 56 of the Federal
Rules of Civil Procedure which provides, in pertinent part,
that judgment “shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(c). An issue is
“material” if it affects the outcome of the
litigation and may be considered “genuine” if it
is established by “sufficient evidence supporting the
claimed factual dispute…to require a jury or judge to
resolve the parties' differing versions of the truth at
trial.” Hahn v. Sargent, 523 F.3d 461, 464
(1st Cir. 1975) (quoting First Nat'l Bank v.
Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968));
see also British Motor Car Distrib. v. San Francisco
Auto. Indus. Welfare Fund, 882 F.2d 371 (9th Cir. 1989).
In order to withstand a motion for summary judgment, a party
(1) must make a showing sufficient to establish a genuine
issue of fact with respect to any element for which it bears
the burden of proof; (2) must show that there is an issue
that may reasonably be resolved in favor of either party; and
(3) must come forward with more persuasive evidence than
would otherwise be necessary when the factual context makes
the non-moving party's claim implausible.
Id. at 374 (citation omitted). When applying this
standard, the court views all of the evidence in the light
most favorable to the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Hughes v. United States, 953 F.2d 531, 541 (9th Cir.
Motion to Strike
moves to strike paragraphs 14 through 19 of Mr. Evans'
Declaration and the attached Exhibits B through F filed in
opposition to the Motion for Summary Judgment. (Dkt. 32.)
Reddaway argues the Declaration and Exhibits have not been
shown to be admissible as they contain inconsistent and/or
hearsay testimony, are not based on Mr. Evans' personal
knowledge, and lack foundation. (Dkt. 32, 34.) Mr. Evans
opposes the Motion to Strike arguing the materials are
properly before the Court. (Dkt. 33.)
Rule of Civil Procedure 56 requires summary judgment motions
to be supported by cites to the record and affidavits. The
rule, however, allows for flexibility. Savage v. Dennis
Dillon Auto Park & Truck Center, Inc., 2015 WL
6134354, at *2 (D. Idaho Oct. 19, 2015). The Court is not
limited to consideration of only the cited materials, but
also may consider “other materials in the record,
” including declarations to set out facts that
“would be admissible in evidence.” Id.
(quoting Fed.R.Civ.P. 56(c)(3), (c)(4)). Hearsay statements
can be cured at trial with the testimony of the declarant.
Id. If a party fails to properly support an
assertion of fact, the Court has discretion to give the party
an opportunity to properly support or address the fact.
evidence need not be admissible to be considered on summary
judgment; rather, the evidence need only be capable of being
“presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2) (“A party may
object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in
evidence.”). In determining admissibility for summary
judgment purposes, it is the content of the evidence rather
than its form that must be considered. Fraser v.
Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the
contents of the evidence could be presented in an admissible
form at trial, those contents may be considered on summary
judgment even if the evidence itself is currently presented
in an inadmissible form. Id. (affirming
consideration of hearsay contents of the plaintiff's
diary on summary judgment because at trial, the
plaintiff's testimony of contents would not be hearsay).
Moreover, the rule encourages decisions on the merits, not on
technicalities. This policy is “expressed in the local
rules, the case law of the United States Court of Appeals for
the Ninth Circuit, and the Federal Rules of Civil
Procedure.” Savage, 2015 WL 6134354, at *2
particular portions of the Declaration and Exhibits that are
the subject of the Motion to Strike concern Mr. Evans'
allegations about comparators; i.e., other employees who
engaged in similar behaviors to that of the Plaintiff but who
were not disciplined or terminated. (Dkt. 30-12, Dec. Evans.)
Specifically, other line drivers who left before their bid
times and/or charged wait time upon arrival at their meet
points but were not disciplined or terminated.
Court denies the Defendant's Motion to Strike in this
case. The Declaration and attached Exhibits are materials
that could be presented in an admissible form at trial and
the Court will consider them in deciding the Motion for
Summary Judgment. The Court makes no ruling at this time as
to whether the evidence and/or testimony would be admissible
Motion for ...