Victor A. Whittaker v. Morgan State University

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2293
VICTOR A. WHITTAKER,
Plaintiff - Appellant,
v.
MORGAN STATE UNIVERSITY; T. JOAN ROBINSON, Vice President
for Academic Affairs, Morgan State University; CLARA I.
ADAMS, Ph.D. Former Vice President for Academic Affairs,
Morgan State University; BURNEY J. HOLLIS, Ph.D. Dean,
College of Liberal Arts, Morgan State University; MAURICE C.
TAYLOR, Ph.D. Vice President for University Operations,
Morgan State University; JODI CAVANAUGH, J.D. Diversity and
Equal Employment Officer, Morgan State University; RANDAL
REED, Ph.D. Professor of Economics, Morgan State University;
EARL S. RICHARDSON, Ph.D. Vice President for Academic
Affairs, Morgan State University, individually and in his
official capacity,
Defendants - Appellees,
and
DAVID WILSON, Ed.D President, Morgan State University;
ADRIENNE MCCLUNG, Student, Morgan State University; GIOVANNI
LAWRENCE, Student, Morgan State University,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:09-cv-03135-JKB)
Submitted: May 6, 2013 Decided: May 30, 2013

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Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Valerie Ibe, LAW OFFICES OF C. VALERIE IBE, Pikesville,
Maryland, for Appellant. Douglas F. Gansler, Attorney General
of Maryland, Julia Doyle Bernhardt, Assistant Attorney General,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Victor A. Whittaker, a former tenured economics
professor at Morgan State University (“MSU”), appeals the
district court’s entry of summary judgment in favor of MSU in
Whittaker’s civil action, which challenged MSU’s conduct related
to the termination of his employment there. Applying de novo
review to the district court’s summary judgment determination,
see Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 421 (4th Cir.
2012), we affirm.
The viability of Whittaker’s appeal depends, in large
part, on whether the district court properly decided that it
would not consider for purposes of its summary judgment
determination an unsworn letter written by Brandon Smith, one of
Whittaker’s former students. To withstand a summary judgment
motion, the nonmoving party must produce competent evidence
sufficient to reveal the existence of a genuine issue of
material fact for trial, and in this case, Smith’s letter was
the sole evidence for several factual assertions going to the
heart of Whittaker’s case against MSU. See Fed. R. Civ. P.
56(c)(1); Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc.,
673 F.3d 294, 299 (4th Cir. 2012); Pension Ben. Guar. Corp. v.
Beverley, 404 F.3d 243, 246-47 (4th Cir. 2005).
We discern no abuse of discretion in the district
court’s decision to exclude Smith’s letter from its

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consideration. See Nader v. Blair, 549 F.3d 953, 963 (4th Cir.
2008) (noting that the district court’s determination regarding
the admissibility of evidence for summary judgment purposes is
reviewed for an abuse of discretion). While a party may support
its position on summary judgment by citing to almost any
material in the record, the party’s reliance on that material
may be defeated if “the material cited to support or dispute a
fact cannot be presented in a form that would be admissible in
evidence.” Fed. R. Civ. P. 56(c)(2).
We are persuaded that this is precisely what happened
here. Smith’s unsworn letter was attached only to Whittaker’s
affidavit. As a result, any of Whittaker’s representations
about the letter’s content would be inadmissible hearsay. See
Fed. R. Civ. P. 56(c)(4); Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 962 (4th Cir. 1996) (“[S]ummary judgment
affidavits cannot be conclusory or based upon hearsay.”
(citations omitted)).
Nor do we accept Whittaker’s argument that the mere
notarization of Smith’s unsworn letter was sufficient to require
the district court to consider it for purposes of summary
judgment and assume its truth. See, e.g., Hoover v. Walsh, 682
F.3d 481, 491 n.34 (6th Cir. 2012); Owens v. Hinsley, 635 F.3d
950, 954-55 (7th Cir. 2011); Bush v. Dist. of Columbia, 595 F.3d
384, 387 (D.C. Cir. 2010); Harris v. J.B. Robinson Jewelers, 627

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F.3d 235, 239 n.1 (6th Cir. 2010); DIRECTV, Inc. v. Budden, 420
F.3d 521, 530-31 (5th Cir. 2005); Orr v. Bank of Am., NT & SA,
285 F.3d 764, 774 (9th Cir. 2002); Orsi v. Kirkwood, 999 F.2d
86, 92 (4th Cir. 1993). Even in this court, Whittaker
essentially admits that he would have difficulty locating Smith
and presenting the letter or its contents “in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). We
therefore conclude that the district court did not reversibly
err in concluding that Whittaker could not produce admissible
evidence to support the assertions contained in Smith’s letter.
See Fed. R. Civ. P. 56(c)(1)(B), (c)(2).
Given that the district court acted well within its
discretion in excluding Smith’s letter, we have no trouble, on
the circumstances of this case, in concluding that the district
court properly entered summary judgment against Whittaker’s 42
U.S.C. § 1983 (2006) due process and First Amendment claims, as
well as against his claim of retaliation under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2006).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED

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