First off, this case contained some nice language on exhibits that are submitted as part of summary judgment motions, responses and replies:

Specifically, unless the parties stipulate as to their contents and authenticity, FED.R.EVID. 1007; documents must meet a two-prong test: (1) they must be attached to and authenticated by an affidavit (or a sworn or certified copy must be attached to or served with the affidavit); and (2) the affiant must be a competent witness through whom the documents may be received into evidence at trial. Stuart v. General Motors Corp., 217 F.3d 621, 636 n. 20 (8th Cir.2000); FED.R.CIV.P. 56(e).See also 11 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 56.14(2)(c) (3d ed. 1997) (“Unauthenticated documents, once challenged, cannot be considered by a court in determining a summary judgment motion.”). Therefore, regardless of the documents’ essential nature or probative value; without proper foundation, they will not be permitted for summary judgment purposes. Cordray v. 135-80 Travel Plaza, Inc., 356 F.Supp.2d 1011, 1015 (D.Neb.2005)


And the court actually did exclude several of Nationwide’s exhibits for failing to meet this test. How do you explain that one to your client especially at $500 or so an hour? Can we say, “New counsel?”

Facts - Beginning in September 2003, Andrew Rabe worked in a temp position at Nationwide. He hired on full time in January 2004 as a senior accountant. Under his first supervisor, Mr. Parks, Rabe had no problems. His next supervisor, Mr. McGeehan, experienced difficulties with Rabe.

On August 17, 2005, Rabe informed McGeehan that his wife was scheduled to give birth on September 23, 2005 and requested 2 weeks of FMLA leave. Rabe claims that McGeehan told him that he would not be able to take leave if Nationwide was really busy and he was not entitled to the same leave as his female co-workers. Rabe claims that McGeehan refused his FMLA leave request.

On August 26, 2005, Rabe was called into a meeting with McGeehan and Ms. Baker where he was told that he would be eligible for FMLA leave and was given the necessary paperwork to fill out.

McGeehan also provided him a memo on the same date:

The issue that I want to outline is not [Mr. Rabe's] desire to take time off, but the manner in which [he] approached me. Instead of talking in a professional manner, [Mr. Rabe] almost immediately put me on the defensive by challenging the time off another associate received when they had a child.
This is just one example of what has become a pattern of unprofessional and unacceptable behavior that [Mr. Rabe] has been displaying in the accounting department …
…
Any further incidents that do not adhere to these guidelines [or other directives] will result in a written warning and could include termination, if the offense warrants such action.

To complete Rabe’s perfect day, McGeehan assigned him a filing project to be finished by the end of the day. Rabe took on the assignment with much fervor but was unable to complete it by day’s end. He missed the following Monday because of health reasons and Nationwide terminated him on Tuesday, Aug. 30.

Nationwide attempted to claim that the decision to fire Rabe was made by Parks, his former supervisor. Parks fired Rabe for failing to complete the filing assignment and for lack of confidence in his abilities to perform as instructed.

At this point, Nationwide may have lost all credibility with the court.

A further hit to Nationwide’s credibility came when they took issue with Rabe’s “tardiness”; however, testimony by its employees negated that as it was of no concern to Parks as reflected in his testimony.

Nationwide’s first argument is that termination does not constitute interference because “termination itself is not a refusal to authorize leave or ‘chilling’ factor.”Therefore, Nationwide argues, Mr. Rabe’s claim would be more properly stated (if at all) as one of retaliation, under Section 2615(a)(2).

The district court made short work of that argument:

Whether an alleged act occurs prior to, during, or subsequent to FMLA leave, that which “deters an employee from participating in protected activities constitutes an ‘interference’ or ‘restraint’ of the employee’s exercise of his rights.’“ Stallings, 447 F.3d at 1050 (quoting 29 C.F.R. § 825.220(b)).

At this point, Nationwide claimed that it would have fired Rabe despite his FMLA leave inquiry. Somebody must have made the judge unhappy because I’ve never seen language so strong:

For summary judgment purposes, Nationwide has failed to sufficiently establish the existence of a lawful reason unrelated to Mr. Rabe’s exercise of FMLA rights. First, much of the evidence relied upon by Nationwide is controverted and/or without adequate foundation, and therefore unusable by the Court; the remaining documents largely consist of those prepared subsequent to Mr. Rabe’s leave request. Next, the deposition testimony of Nationwide’s management is substantially inconsistent, equivocal, and/or without foundation; and often useless to support its mis-characterized statements of “fact.” Lastly, the veracity of any “performance issues” prior to Mr. Rabe’s leave request has not been established. Notably, the record is absent any proper evidence which demonstrates that Mr. Rabe’s employment with Nationwide was ever in jeopardy, notwithstanding his inconsistent work schedule and previous cash application inaccuracies. Further, the evidence is not summarily sufficient to prove that Mr. Rabe had been issued warnings or exhibited unprofessional behavior. In fact, Mr. Rabe received a rating of “good” on his most recent performance evaluation. See also note 4, supra.Accordingly, Mr. Rabe’s interference claim survives summary judgment.

The court used much of the same reasoning to deny Nationwide’s summary judgment motion on Rabe’s retaliation claim as well.

Rabe v. Nationwide Logistics, Inc., —F.Supp.2d—, 2008 WL 113658 (E.D.Mo.)

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