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Evans v. USF Reddaway, Inc.

United States District Court, D. Idaho

June 30, 2017

EDWARD EVANS, Plaintiff,
USF REDDAWAY, INC., an Oregon Corporation, Defendant.


          Edward J. Lodge United States District Judge


         Before 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.


         Plaintiff 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.

         In June 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.)

         In 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, Ex. D.)

         As a 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.

         Reddaway's 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.


         Motions 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. 1992).


         1. Motion to Strike

         Reddaway 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.)

         Federal 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. Fed.R.Civ.P. 56(e).

         Further, 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 (citation omitted).

         The 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.

         The 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 at trial.

         2. Motion for ...

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