OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
This case is one of the last two spin-offs of Crum et al. v. State of Alabama, consolidated as In re Employment Discrimination Litigation Against the State of Alabama, civil action no. 94-354-N, otherwise known as the Crum litigation. See Clemons v. Alabama Dep't of Human Res., 2020 WL 224336, at *1 (M.D. Ala. 2020). There is only one claim left in this individual Crum case: plaintiff Laura Johnson-Price Clemons's claim that defendants Alabama Department of Human Resources (DHR) and DHR Commissioner Nancy T. Buckner retaliated against her in her employment, in violation of 42 U.S.C. § 1981 (by and through 42 U.S.C. § 1983) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981a, 2000e to 2000e-17.1 See id. This court has original jurisdiction over the claim under 42 U.S.C. § 2000e-5(f)(3) (as to Title VII) and under U.S.C. § 1343 (as to § 1981). The court has before it defendants' renewed motion for summary judgment in their favor on the retaliation claim. For reasons that file, the motion will be denied.
Because this court previously set forth the standard for resolution of a summary-judgment motion, see Johnson-Price v. Alabama Dep't of Human Res., 2010 WL 1268095, at *1 (M.D. Ala. 2010), as well as the standard for addressing a retaliation claim, see id. at *8, the standards will not be repeated. Because the court has also already set forth Clemons's allegations in this litigation, see id. at *1-4, they will not be noted again except where relevant.
Clemons contends that defendants impermissibly retaliated against her on two occasions: First, she asserts that DHR, acting through Erin Snowden, retaliated against her by delaying her appointment to the position of Assistant Director of Calhoun County. See id. at 8. Second, she contends that Snowden subjected her to retaliatory treatment after she accepted the position of Assistant Director. See id. This claim presents the initial and principal issue of whether there is admissible evidence, direct or circumstantial, that decision-maker Snowden impermissibly retaliated against Clemons because she had made complaints of discrimination. In addressing the matter of causality, Clemons relies mainly upon a chronology drafted by DHR Regional Manager Mike Galloway as evidence that Snowden did not want to promote Clemons because of her prior EEO activity. In this chronology, Galloway summarizes the hiring process for the Calhoun County Assistant Director position and notes that Snowden "was critical of [Clemons's] history of filing EEO complaints" and did "not want to offer [Clemons] the position." Pl.'s Ex. 6 (doc. no. 64). Galloway's statement, if reliable and believable, is clear evidence that Snowden not only knew of Clemons's protected activity, but was explicitly biased and willing to take direct action in retaliation against her for them.
The critical question, however, is whether Galloway's statement is admissible evidence. See Macuba v. DeBoer, 193 F.3d 1316, 1323 (11th Cir. 1999) ("The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment.") (citation and quotation marks omitted). The court agrees with Clemons that the statement is admissible. The parties were able to take the deposition of Galloway about the statement, and there is no question that he made the statement as part of his investigation. While there is also no question that he no longer remembers the statement, the court agrees with Clemons that the statement is admissible pursuant to Rule 803(5) of the Federal Rules of Evidence, which provides that a statement is "not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness," if the statement is a "Recorded Recollection," that is, is "A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge." In other words, in order for a document to be admitted under Rule 803(5), it must relate to matters about which the witness once had knowledge; the witness must now have insufficient recollection; and the document must have been made by the witness while information was fresh in the witness's mind. See 2 K. Broun, McCormick On Evid. §§ 279-283 (8th ed.). Here, the court finds that Clemons has satisfied these requirements for the purpose of admissibility.
To be sure, relying on all the circumstances surrounding Galloway's inclusion of the statement in his memorandum, defendants take issue with the reliability and credibility of Galloway's statement. More specifically, they question the reliability of Galloway's memory both at the time Snowden allegedly made the comment and at the time Galloway recorded the alleged comment. The court in allowing the admissibility of the statement is not saying that Galloway's statement is sufficiently reliable and credible to be true. That is an ultimate issue for the factfinder, and, indeed, all the arguments that defendants have put forward may still be put to the factfinder, to convince the factfinder to reject the statement—and the factfinder may very well still find the statement not credible.
Defendants also take issue with whether Clemons's complaints about discrimination are sufficiently close to the alleged retaliatory action. Proximity is merely one means of showing causation; it is not always required. Thus, the issue of proximity might be of concern if all that Clemons had at hand to make out a circumstantial case was the proximity between her complaints and the alleged retaliatory actions. But this is not the case here. The court also has before it Snowden's alleged comment, which goes directly to whether Snowden harbored a retaliatory bias against Clemons about her past complaints. See Gary v. Hale, 212 F. App'x 952, 958 n.3 (11th Cir. 2007) ("where evidence of the decision-maker's awareness is otherwise lacking in a case, a close temporal proximity between the protected activity and the adverse action might sometimes serve as circumstantial evidence, thereby creating the inference that the decision-maker was aware of the protected activity").
Defendants also question whether Clemons suffered an employee action that would be violative of Title VII. It is important that Snowden's actions against Clemons be viewed cumulatively, and not in isolation. If the above alleged comment recorded by Galloway is credible, it appears, from the recitation of the alleged facts in the court's earlier opinion, see Johnson-Price, 2010 WL 1268095, at *1-4, that Snowden harbored a basis against Clemons before and during the entire time Clemons worked with Snowden—it was an ongoing bias. It is important that Snowden's actions against Clemons be viewed cumulatively, therefore, and not in isolation. Together the actions would be the type that "would likely have `dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 60 (2006) (quoting Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)).
Finally, the parties agree that Clemons engaged in protected conduct: the filing of discrimination charges.2
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Accordingly, it is ORDERED that defendants' renewed motion for summary judgment (doc. no. 132) is denied. A trial date on the retaliation claim will be set.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
