Mackey v. Owens

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 8, 1999
• Docket: 98-60758
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 98-60758 Summary Calendar ___________________________

ANTHONY MACKEY,

Plaintiff-Appellant,

VERSUS

DAVID OWENS d/b/a TUPELO TIRE LOADING SERVICE,

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi (1:98-CV-166-JAD) ___________________________________________________

June 2, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Anthony Mackey appeals from a final

judgment of the magistrate court granting summary judgment against

him on his action to recover damages for discharge in violation of

public policy. For reasons that follow, we affirm.

I.

Defendant-Appellee Tupelo Tire Loading Service ("TTLS") is a

minority general partnership consisting of approximately eighteen

general partners, of which Defendant-Appellee David Owens is the

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. managing partner. The partnership contracts with various trucking

companies to load and unload tractor-trailers at the Cooper Tire

plant in Tupelo, Mississippi. In addition to its general partners,

TTLS periodically employs a small number of employees who generally

work for a few weeks or months and are then invited to become

partners.

Mackey began working for TTLS in 1996, and worked there until

his termination in May 1998. TTLS alleges that during this time

Mackey was treated as a general partner, received distributions of

profits along with the other general partners, and received

Internal Revenue Service Schedules K-1 on the money he received

from the partnership. Mackey denies that he was ever a partner at

TTLS.

In May 1998, Owens called a meeting at which he instructed

Mackey and others to sign a document indicating that they were

partners. Mackey refused to sign the document. He alleges that the

document was fraudulent, and was designed to defraud the Internal

Revenue Service. Two days later, Mackey missed work due to a back

injury. Owens terminated Mackey, stating as his reason that Mackey

had missed work. Mackey contends that this was just a pretext, and

that he was actually discharged for refusing to sign the fraudulent

document.

Mackey filed the present action alleging discharge in

violation of public policy in May 1998. Owens filed his answer and

defenses in August 1998. Along with the answer and defenses, Owens

filed a motion to dismiss. Attached to the motion were four

exhibits. Exhibit 1 was a copy of Mackey's Complaint. Exhibit 2 was

2 a document styled "General Articles of Partnership" dated April 30,

1990, along with an addendum dated May 7, 1998. Exhibits 3 and 4

were Internal Revenue Service Schedules K-1 setting forth

partnership distributions received by Mackey in 1996 and 1997.

Mackey filed a motion for additional time to respond to the

motion to dismiss, which the district court granted. The parties

then consented to trial before a magistrate judge. Mackey filed a

second motion for additional time to respond to the motion to

dismiss, which the magistrate judge granted. Mackey ultimately

filed his response to the motion to dismiss in October 1998. The

magistrate judge elected to treat the motion to dismiss as a motion

for summary judgment, and granted summary judgment on November 20,

1998. This appeal followed.

II.

The central focus of Mackey's appeal is on the magistrate

judge's decision to convert Owens's motion to dismiss into a motion

for summary judgment. Mackey argues that this decision was

erroneous for two reasons. First, he contends that the three

documents on which the magistrate judge relied (the General

Articles of Partnership and the two Schedules K-1) were

unauthenticated, and therefore could not properly be considered on

summary judgment. This argument is unpersuasive. Although Mackey

correctly observes that inadmissible evidence may not be considered

on summary judgment, Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1993),

the fact that a document is unauthenticated does not mean that it

is inadmissible for purposes of summary judgment. Admissible

evidence may be submitted in an inadmissible form at the summary

3 judgment stage, although at trial such evidence must be submitted

in admissible form. See McMillan v. Johnson, 88 F.3d 1573, 1584

(11th Cir. 1996). All of the documents attached to Owens's motion

to dismiss could have been easily authenticated through testimony

at trial. Thus, the documents were admissible even though submitted

in inadmissible form. Moreover, this court has recognized that

"[d]ocuments submitted in support of a motion for summary judgment

may be considered even though they do not comply with the

requirements of Rule 56 if there is no objection to their use."

Eguia v. Tompkins, 756 F.2d 1130, 1136 (5th Cir. 1985). At no time

prior to the magistrate judge's decision did Mackey move to strike

the documents or argue that their consideration was inappropriate.

In light of Mackey's failure to object, the magistrate judge was

entitled under Equia to consider the documents on summary judgment.

Second, Mackey contends that the magistrate judge failed to

provide adequate notice that the motion to dismiss would be treated

as a motion for summary judgment. Again, this argument is

unpersuasive. A motion to dismiss may be converted into a motion

for summary judgment so long as the notice and hearing requirements

of Rules 12(b) and 56(c) of the Federal Rules of Civil Procedure

are followed. Estate of Smith v. Tarrant County Hosp. Dist., 691

F.2d 207, 208 (5th Cir. 1982). The requirements of both rules were

satisfied in this case.

Rule 12(b) states, in pertinent part:

If, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all

4 material made pertinent to such a motion by Rule 56.

Nothing in this rule requires that a party be given express notice

by the district court that it intends to treat a motion to dismiss

as a motion for summary judgment. Indeed, given the rule's express

declaration that a motion to dismiss shall be treated as a motion

for summary judgment where matters outside the pleadings are

presented to and not excluded by the court, the simple act of

placing matters outside the pleadings before the court provides

adequate notice that a motion to dismiss may be converted into a

motion for summary judgment. See Gay v. Wall, 761 F.2d 175 (4th

Cir. 1985) ("When a party is aware that material outside the

pleadings is before the court, the party is on notice that a Rule

12(b)(6) motion may be treated as a motion for summary judgment.").

Here, Owens attached three documents besides the complaint to his

motion to dismiss. That was more than sufficient to put Mackey on

notice that Owens's motion to dismiss might be treated as a motion

for summary judgment under Rule 12(b).

Rule 56(c) requires that a motion for summary judgment be

served at least 10 days prior to the time fixed for hearing, so

that the adverse party may have time to present opposing evidence.

Here, Mackey had over two months between the date that the motion

was served and the date that summary judgment was granted in which

to object or to present opposing evidence. That he chose not to do

so does not invalidate the magistrate judge's decision. This court

confronted a similar situation in Isquith v. Middle South

Utilities, Inc., 847 F.2d 186 (5th Cir. 1988). In Isquith, the

defendants filed a motion to dismiss, attached to which were

5 various affidavits and supporting documents. The district court

treated the motion as a motion for summary judgment, and granted

summary judgment. On appeal, this court stated that the notice

requirement of Rule 56(c) does not mean that a party is "entitled

to notice that the court would, as opposed to could, treat the

motion as one for summary judgment." Id. at 195. Rather, we found

that "[t]he proper question . . . is whether the plaintiffs had ten

days' notice after the court accepted for consideration matters

outside the pleadings." Id. at 196. Here, as in Isquith, the

plaintiff had well over ten days' notice after the district court

accepted for consideration the General Articles of Partnership and

the two Schedules K-1. Rule 56(c)'s notice requirement was

therefore satisfied, and the magistrate judge acted properly in

treating the motion to dismiss as a motion for summary judgment.

III.

A district court's decision to grant summary judgment is

reviewed de novo. Moore v. Eli Lily & Co., 990 F.2d 812, 815 (5th

Cir. 1993). Summary judgment shall be granted "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden

rests upon the party seeking summary judgment to show the absence

of a genuine issue of material fact in the non-moving party's case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once such a

showing has been made, the burden shifts to the non-moving party to

demonstrate, by specific facts, that a genuine issue of material

6 fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). "Where 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." Id. at 248 (citation omitted).

Mackey's theory of liability rests on 18 U.S.C. § 1001 and

this court's decision in Drake v. Advance Construction Service,

Inc., 117 F.3d 203 (5th Cir. 1997). In Drake, this court recognized

a "narrow public policy exception" to Mississippi's employment-at-

will doctrine; namely, that "an employee discharged either for

refusing to participate in an illegal act, or for reporting illegal

acts of his employer to the employer or anyone else, is not barred

by the employment-at-will doctrine from bringing a tort action

against his employer." Id. at 204 (citing McArn v. Allied Bruce-

Terminix Co., Inc., 626 So.2d 603, 607 (Miss. 1993)). Section 1001

is a criminal provision prohibiting, inter alia, the making or use

of "any false writing or document knowing the same to contain any

materially false, fictitious, or fraudulent statement or entry" in

any matter within the jurisdiction of the government of the United

States. The Drake panel expressly recognized that the Mississippi

public policy exception extends to employees who refuse to violate

Section 1001. 117 F.3d at 204. Mackey alleges in his complaint that

the document Owens instructed him to sign was "a fraudulent

document designed to defraud the Internal Revenue Service of the

United States." As such, he claims, his termination for refusal to

sign the document gives rise to a tort action under Drake.

The magistrate judge found, and we agree, that there is no

genuine issue of material fact sufficient to sustain Mackey's

7 claim. Central to Mackey's action is his allegation that the

document Owens instructed him to sign--which identified Mackey as

a "partner" at TTLS--was false or fraudulent. If the document was

not false or fraudulent, then signing it could not have given rise

to a Section 1001 violation, and hence termination for refusal to

sign could not give rise to a Drake action. The 1996 and 1997

Schedules K-1 that Owens attached to his motion to dismiss identify

Mackey by name as a general partner at TTLS and list the

partnership distributions that Mackey received each of those years.

These documents satisfy Owens's burden to show the absence of a

genuine issue of material fact. If Mackey was in fact a general

partner at TTLS, then the document he refused to sign identifying

him as such could not have been false or fraudulent.

The burden thus shifts to Mackey to demonstrate by specific

facts that a genuine issue of material fact exists. Mackey has not

met this burden. He argues that there is no evidence that these

forms were ever given to him or that he knew of their existence.

Alternatively, he argues that a jury could conclude that Mackey, as

an unskilled laborer, did not understand the significance of the

Schedules K-1. These arguments are conjecture, not specific facts.

Conjecture alone is insufficient to defeat summary judgment.

Lechuga v. Southern Pacific Transportation Co., 949 F.2d 790, 798

(5th Cir. 1992).

In short, Mackey has failed to meet his burden to demonstrate

by specific facts that a genuine issue of material fact exists as

to whether the document he refused to sign was false or fraudulent.

The Schedules K-1 identify him as a general partner, and he points

8 to no specific fact or piece of evidence contradicting that

identification. As such, no rational trier of fact could find in

favor of Mackey, and the magistrate judge's final judgment in favor

of Owens must be affirmed.

AFFIRMED.