Berry v. City of Bossier City9/8/2005
the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(C)(2).
Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent's favor. Row v. Pierremont Plaza, L.L.C., 35,796 (La. App. 2d Cir. 4/3/02), 814 So. 2d 124, writ denied, 2002-1262 (La. 8/30/02), 823 So. 2d 952.
The non-movant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony. Copeland v. Wasserstein, Perella & Co., Inc., 278 F. 3d 472 (5th Cir. 2002).
The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Row v. Pierremont Plaza, L.L.C., supra; Birdsong v. Hirsch Memorial Coliseum, 39,101 (La. App. 2d Cir. 12/15/04), 889 So. 2d 1232; Jones v. Webb, 36,121 (La. App. 2d Cir. 6/12/02), 821 So. 2d 614, writ denied, 2002-1855 (La. 10/14/02), 827 So. 2d 425.
McGEE'S CLAIMS
Deposition testimony When questioned about retaliation during his September 2002 deposition, McGee gave the following testimony:
Q: Do you have any facts to suggest there's any type of retaliation by the Bossier City Fire Department on any race-based basis, or racial basis?
A: I don't feel like I've been retaliated against, personally. . . .
Q: You have no facts to suggest any type of race-based retaliation against you; is that correct?
A: That's correct.
Q: Do you have any facts to suggest any race-based retaliation against anyone?
A: Facts, no, I don't.
As to the issue of failure to promote, McGee testified in his deposition:
Q: With regard to -- I may have asked this, promotions, have you been denied any promotion by reason of race?
A: No.
On the issue of certification, McGee gave the following testimony in his deposition:
Q: Is there any fact to suggest that there was any discrimination by the Bossier City Fire Department with regard to certification of you?
A: No, I think I got certified where I should have got certified. . . . .
Q: Okay. If there was any race-based discrimination, if there was, which is being denied by the Bossier City Fire Department, then it had no impact on you with regard to certification, correct?
A: Yes, that's true. . . . .
Q: Do you have any facts to suggest any race-based discrimination with regard to certification?
A: All I know is, you look on that seniority list and you see them classes, you see them blacks tend to finish toward the end. Now, why that is, I don't know.
I guess the answer would be, no, I guess. Yeah, the answer would be no. . . . .
Q: Do you have any facts to suggest there's any race-based discrimination by the Bossier City Fire Department with regard to seniority promotion?
A: No, because once you get locked into t
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