Charles Hetherington v. Wal-Mart, Inc. , 511 F. App'x 909 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13684
Non-Argument Calendar
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D.C. Docket No. 5:10-cv-01374-RDP
CHARLES HETHERINGTON,
Plaintiff-Appellant,
versus
WAL-MART, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
________________________
(March 5, 2013)
Before MARCUS, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Charles Hetherington appeals the district court’s grant of summary judgment
in favor of his former employer, Wal-Mart, Inc. (“Wal-Mart”), in his disability
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discrimination action under the Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101, et seq. On appeal, Hetherington argues that: (1) the district
court abused his discretion in striking evidence Hetherington submitted in
opposition to Wal-Mart’s summary judgment motion; (2) the district court erred in
granting Wal-Mart’s summary judgment motion since Hetherington opposed
summary judgment by showing that he was substantially limited in thinking,
walking, using his right hand, reading, learning, and working. After thorough
review, we affirm.
A district court has broad discretion in determining the admissibility of
evidence, and we review evidentiary rulings for abuse of discretion. Equity
Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232,
1243 (11th Cir. 2009). We review the granting of summary judgment de novo,
construing the facts in the light most favorable to the nonmoving party. Holly v.
Clairson Indus., LLC, 492 F.3d 1247, 1255 (11th Cir. 2007).
First, we find no merit to Hetherington’s claim that the district court abused
its discretion in striking his evidence on summary judgment. Declarations used to
support or oppose a summary judgment motion must be based on personal
knowledge and must set forth facts that would be admissible under the Federal
Rules of Evidence. See Fed.R.Civ.P. 56(c)(4). Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted. See Fed.R.Evid. 801(c).
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A district court may consider hearsay in ruling on a summary judgment motion
where that statement could be “reduced to admissible evidence at trial.” Macuba v.
DeBoer, 193 F.3d 1316, 1323 (11th Cir. 1999) (quotation omitted).
The Federal Rules of Evidence create an exception to the hearsay rule for the
records of public agencies that set forth factual findings resulting from a legally
authorized investigation, unless the sources of information or other circumstances
indicate lack of trustworthiness. Fed.R.Evid. 803(8). Cause determinations by the
Equal Employment Opportunity Commission (“EEOC”) are generally admissible
under the hearsay exception for public records. See Walker v. NationsBank of Fla.
N.A., 53 F.3d 1548, 1554 & n.7 (11th Cir. 1995). However, the admissibility of
EEOC findings is subject to the sound discretion of the district court, and a court
can refuse to admit an EEOC report if it contains legal conclusions in addition to
its factual content, or if it presents issues of trustworthiness. Barfield v. Orange
Cnty., 911 F.2d 644, 650 (11th Cir. 1990).
As the record shows here, the magistrate judge did not abuse his discretion
by excluding portions of the declaration of Hetherington’s father (Charles
Hetherington, Sr.) since the statements excluded were not within the father’s
personal knowledge. See Fed.R.Civ.P. 56(c)(4). Further, even assuming that these
statements could be found to be within his personal knowledge, they had no
probative value with respect to whether summary judgment should be granted
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because they were conclusory and lacked specific supporting facts. See Hilburn v.
Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1228 (11th Cir. 1999) (conclusory
allegations without specific supporting facts have no probative value). The
magistrate also did not abuse his discretion in striking the portion of the EEOC
cause determination that provided that Hetherington was a qualifying legal
individual with a disability because this was a legal conclusion. See Barfield, 911
F.2d at 650. Moreover, because the statement by Wal-Mart employee Margaret
McCluskey would not have been admissible at trial, it was properly stricken. The
document constituted hearsay, and Hetherington has failed to identify any
applicable exception to the hearsay rule. Finally, any error in excluding the
remainder of the evidence was harmless, as the exclusion of the evidence did not
affect the outcome of the case. See Outside the Box Innovations, LLC v. Travel
Caddy, Inc., 695 F.3d 1285, 1297 (11th Cir. 2012) (providing that any error in the
admission or exclusion of evidence may be tolerated unless it had a substantial
influence on the outcome of the case).
We are also unpersuaded by Hetherington’s claim that the district court erred
in granting Wal-Mart’s summary judgment motion. A district court shall grant
summary judgment where the evidence shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). To establish a prima facie case of disability discrimination
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under the ADA, a plaintiff must show that (1) he has a disability; (2) he is a
qualified individual; and (3) he was discriminated against because of his disability.
See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir.
2004). If the plaintiff establishes a prima facie case, a presumption of
discrimination arises and the burden shifts to the defendant to proffer a legitimate,
non-discriminatory reason for the employment action. Id. If the defendant meets
its burden, then the plaintiff must show that the proffered reason is a pretext for
discrimination. Id.
The ADA defines “disability” as (1) a physical or mental impairment that
substantially limits one or more of the plaintiff’s major life activities; (2) a record
of such an impairment; or (3) being regarded as having such an impairment.
Hilburn, 181 F.3d at 1226. The term “major life activities” includes functions such
as performing manual tasks, walking, learning, and working. Id. at 1226-27. In
determining whether an individual is substantially limited in a major life activity,
the following factors should be considered: (1) the nature and severity of the
impairment; (2) the duration or expected duration of the impairment; and (3) the
permanent or long-term impact of the impairment. Id. at 1227. An individual’s
ability to work is substantially limited if he is “significantly restricted” in his
ability to perform either a class of jobs or a broad range of jobs in various classes
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as compared to an average person who has comparable training, skills and abilities.
D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1227 (11th Cir. 2005).
As an initial matter, the district court did not err in not addressing the EEOC
cause determination in deciding Wal-Mart’s summary judgment motion.1 EEOC
findings are not binding with regard to subsequent discrimination suits in federal
court. See Moore v. Devine, 767 F.2d 1541, 1542-43, 1550-51 (11th Cir. 1985),
modified on reh’g, 780 F.2d 1559, 1560, 1562-63 (11th Cir. 1986). Moreover, the
district court was not required to defer or make reference to the EEOC
determination, as it had to conduct a de novo review of his claim. Id. at 1550-51.
Next, although the evidence shows that Hetherington is somewhat limited in
thinking, reading, and learning, he is able to read and write, and his reading level
has been evaluated to be at a junior high level. He also completed 12 years of
school. Thus, he did not show that he was substantially limited in these activities.
The evidence also shows that he was somewhat limited in walking and using his
right hand, as he limped on his right leg and his right arm shook when he reached
for items. However, the evidence shows that he was able to drive a car, bathe,
shower, and dress himself. He also exercised at a health center by walking and
lifting weights. In previous positions, he performed a number of different jobs
1
We also reject Hetherington’s argument that we should rely on the legislative history of the
ADA Amendments Act of 2008 (“ADAAA”) in deciding his case since it was not in effect
during the events in question. Hetherington concedes that the ADAAA does not apply
retroactively; accepting his argument would have the effect of applying the ADAAA
retroactively to him.
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including assembling bolts, putting boxes together, packaging and sorting welding
rods, clipping strings from cargo nets, assembling belts, bagging groceries,
assisting customers unload groceries into their cars, unloading merchandise from
trucks, and delivering the items to their proper location in the store. Based on the
evidence concerning his past positions, he is not substantially limited in using his
right hand or walking.
Hetherington also claims that he is substantially limited in the major life
activity of working. But the fact that he is unable to obtain a job that requires one
to pass the General Education Development (“GED”) exam does not show that he
is unable to perform either a class of jobs or a broad range of jobs in various
classes as compared to an average person, as the comparator is an average person
who has comparable training and skills. D’Angelo, 422 F.3d at 1227.
Finally, Hetherington contends that he also is disabled because Wal-Mart
had a record of his disability. Hilburn, 181 F.3d at 1226. He claims that his
receipt of an North Alabama Committee on Employment of People with
Disabilities (“NACEPD”) achievement award illustrates this because a Wal-Mart
store manager attended the award ceremony, and a personnel manager supported
his award nomination. He also points to evidence showing that the individual who
terminated Hetherington knew that he limped, had a scar on his head, and was slow
in speaking. To the extent this evidence can even constitute a “record” under the
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ADA, Hetherington fails to explain how these events show that he suffered from
an impairment that would substantially limit one or more life activities. See
Hilburn, 181 F.3d at 1229 (holding that the record-of-impairment standard is
satisfied only if the plaintiff “actually suffered a physical impairment that
substantially limited one or more of h[is] major life activities”). Accordingly,
because he has failed to show that he is disabled under the ADA, the district court
did not err in granting summary judgment in favor of Wal-Mart. 2
AFFIRMED.
2
It is unnecessary for this Court to address Hetherington’s arguments concerning pretext, since
he failed to show that he had a disability under the ADA.
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