The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on (1) defendant's renewed motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and (2) plaintiff's motion to strike certain exhibits attached to defendant's renewed motion.*fn2 The Court will deny plaintiff's motion to strike and grant defendant's renewed motion for summary judgment.
This is an employment discrimination case brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"). Plaintiff Oscar E. Moncada alleges that the Federal Aviation Administration, an agency within the United States Department of Transportation, unlawfully discriminated against him based on his national origin (Hispanic), sex (male) and age (48 at the time the amended complaint was filed) by failing to hire him for ten positions for which he applied between 1995 and 2002. See Complaint ¶ 4 ("Compl.").*fn3
The FAA denies the allegations and has moved for summary judgment. The gist of the FAA's argument is that it had legitimate, non-discriminatory reasons for not selecting Mr. Moncada, and that Mr. Moncada has failed to identify any substantial evidence to the contrary. See, e.g., Mot. S.J. at 14-20. In response, Mr. Moncada has filed (1) a motion to strike most of the exhibits attached to the FAA's renewed motion for summary judgment, and (2) a formal opposition to the FAA's renewed motion for summary judgment. In his motion to strike, Mr. Moncada argues that the Court should strike the FAA's exhibits 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12 because they have not been satisfactorily identified, explained or authenticated and because they include inadmissible hearsay evidence. See generally Mot. Strike. In his opposition brief, Mr. Moncada incorporates the argument from his motion to strike and contends that the FAA cannot obtain summary judgment because its renewed motion relies solely on inadmissible exhibits. See Opp. S.J. at 2. In the alternative, Mr. Moncada asserts that summary judgment for the FAA is inappropriate because there is sufficient evidence for a reasonable jury to conclude that the FAA failed to hire him for discriminatory reasons. See id. at 3-15.
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 127 S.Ct. 1769, 1776 (2007) ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support his claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
III. THE AGENCY HAS CARRIED ITS INITIAL BURDEN
Mr. Moncada argues that the FAA's renewed motion for summary judgment must be denied because the agency "has totally failed to establish, by [its] filing, the absence of a genuine issue." Opp. S.J. at 1. The agency has failed in this regard, says Mr. Moncada, because -- for reasons set forth in his motion to strike -- nearly all of the exhibits on which the agency's renewed motion relies are inadmissible. Id.*fn4 The Court rejects this argument for two reasons.
First, Mr. Moncada appears to believe that the FAA may carry its initial burden of production only by coming forward with admissible evidence affirmatively demonstrating the absence of any genuine disputes. See, e.g., Mot. Strike at 2 ("Defendant by not submitting admissible evidence as part of his motion or to support his Points and Authorities has failed to carry his initial burden of production."). He is incorrect.
Rule 56 contains "no express or implied requirement" that the movant "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. at 323; see FED. R. CIV. P. 56(a), (b). As a result, when the nonmoving party (here, Mr. Moncada) bears the ultimate burden of proof at trial on a dispositive issue or issues, the moving party (here, the FAA) may carry its initial burden on summary judgment by doing no more than "pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. at 325; see 10A WRIGHT, MILLER & KANE, FEDERALPRACTICE AND PROCEDURE: CIVIL 3D, § 2727 at 474 (1998); 11 MOORE'S FEDERAL PRACTICE § 56.13 at 56-138 (3d ed. 2002). In such cases, a movant's motion for summary judgment is "properly made and supported," FED. R. CIV. P. 56(e)(2), when the movant inform[s] the district court of the basis ...