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GOSS v. GEORGE WASHINGTON UNIV.

October 25, 1996

MADELEINE J. GOSS, Plaintiff,
v.
THE GEORGE WASHINGTON UNIVERSITY, Defendant.



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on defendant's renewed motion for summary judgment, plaintiff's opposition thereto, and defendant's reply. Also before the Court are plaintiff's motion to strike defendant's dispositive motion, defendant's opposition thereto, and plaintiff's reply. Upon consideration of the entire record, the Court denies plaintiff's motion to strike and grants defendant's renewed motion for summary judgment. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," Fed. R. Civ. P. 52(a), the Court nonetheless sets forth its analysis.

 Background

 Plaintiff was employed as an Assistant Manager in the Credit and Collections Section of the Department of Patient Accounts (the "Department") at the George Washington University Medical Center (the "Medical Center") until her position was terminated in October 1990. The termination of her position was part of a reduction-in-force that defendant had instituted because of ongoing financial difficulties.

 As part of this restructuring, Sharon Dougherty, the Senior Assistant Administrator of the Department, was instructed by senior management to reduce the size of its staff. She was told that she could wait to decide which positions needed to be abolished until after the Department underwent conversion to a new computer billing system. The new system was instituted during the summer of 1990, and in September, Dougherty reviewed the staff organization of the Department and determined that an entire grade of supervisory positions and several clerical positions had to be abolished.

 In November 1990, Rose Dunphy was hired as Manager of Credit and Collections. In February 1991, Victor Ogun, a 31-year-old black male from Nigeria, was hired as an Executive Associate. Ogun began work on March 4, 1991. *fn2"

 Plaintiff filed a complaint alleging numerous discrimination and tort claims against her former employer, George Washington University, based on her termination. By a March 24, 1995, Opinion (the "Opinion"), the Court granted summary judgment for defendant on Counts III through VIII. Defendant now moves the Court to grant summary judgment on the two remaining counts, in which plaintiff alleges that she was terminated on the basis of her age in violation of the D.C. Human Rights Act, D.C. Code § 1-2512(a) (the "DCHRA"), and the Age Discrimination in Employment Act, as amended, 29 U.S.C., § 621 et seq. (the "ADEA"). *fn3"

 Analysis

 In the prior Opinion, the Court found that plaintiff had established a prima facie case and that there was a genuine issue of material fact as to the truth of defendant's asserted legitimate nondiscriminatory reason for terminating plaintiff, i.e., abolishment of the assistant manager position. In reaching its decision, the Court relied on a record that indicated that Ogun performed many of the same functions that plaintiff had performed at a comparable salary, and that he reported to the manager of the Credit and Collections Section like the other manager, Marina Restrepo. *fn4" See Opinion at 6.

 Subsequent to the issuance of that Opinion, defendant deposed Ogun for the first time. *fn5" Defendant's renewed motion for summary judgment is predicated on this deposition, which indicates that Ogun's position entailed different responsibilities and supervisory authority. In her motion to strike, plaintiff contends that Ogun's deposition does not provide new facts and therefore that defendant's motion should be stricken. A renewed summary judgment motion is appropriate where there is an expanded factual record. Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir. 1995) (per curiam) (citation omitted); Kirby v. P.R. Mallory & Co., 489 F.2d 904, 913 (7th Cir. 1973), cert. denied, 417 U.S. 911, 94 S. Ct. 2610, 41 L. Ed. 2d 215 (1974) (citations omitted). Because the Court finds that Ogun's deposition shows that there is no genuine issue of material fact that would compel submission of this case to a jury, plaintiff's motion to strike is denied.

 In her motion to strike defendant's renewed motion for summary judgment, plaintiff also seeks to have the Court reconsider its decision to strike as inadmissible hearsay PP 2, 4, 5, and 6 of the Ogun declaration. See Opinion at 5 n.1; Pl.'s Mot. To Strike at 4. *fn6" Upon consideration, the Court accepts P 2. *fn7" However, the Court finds no error in its decision to exclude PP 4, 5, and 6. In order for a statement to qualify as a party admission under Fed. R. Evid. 801(d)(2)(D), the declarant must have actually been involved in the decision to hire or fire the person bringing the discrimination charge. Hill v. Spiegel, Inc., 708 F.2d 233, 236-37 (6th Cir. 1983). Even if the statements were admissible, the Court would exclude them as irrelevant. Plaintiff does not name the declarant of the statements in P 4; consequently, the Court cannot discern whether the declarant was involved in the decision to terminate plaintiff. See Garrett v. Lujan, 799 F. Supp. 198, 200 (D.D.C. 1992) (court excludes statement as irrelevant where declarant was referred to merely as "the Department," thus making it "impossible to identify whether the person who made the statement was involved in the selection process"). Similarly, Rose Dunphy, the declarant in PP 5 and 6, was hired after plaintiff's position was terminated and thus was not involved in the decision to terminate plaintiff. See id. The Court thus continues to exclude PP 4, 5, and 6 from its consideration. See Fed. R. Civ. P. 56(e) ("Supporting and opposing affidavits . . . shall set forth such facts as would be admissible in evidence.").

 Summary judgment may be granted against a non-moving party who "fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Fed. R. Civ. P. 56(c). In considering a summary judgment motion, all evidence that would be admissible at trial and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Fed. R. Civ. P. 56(e).

 In order to survive defendant's motion for summary judgment, plaintiff must not only present a prima facie case but also must show that defendant's proffered reasons were pretextual and present some evidence that age was a determining factor in the decision. *fn8" See Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2752, 125 L. Ed. 2d 407 (1993) ("a reason cannot be proved to be a 'pretext for discrimination, unless it is shown both that the reason was false and that discrimination was the real reason") (emphasis in original); Smith v. Chamber of Commerce of United ...


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