Byrd v. The Gwinnett Cnty. Sch. Dist.

1

RICHARD L. BYRD, Plaintiff, v. THE GWINNETT COUNTY SCHOOL DISTRICT, Defendant.

Civil Action No. 1:22-cv-01457-SDG-RGV

United States District Court, N.D. Georgia, Atlanta Division

February 7, 2024

MAGISTRATE JUDGE'S FINAL REPORT, RECOMMENDATION AND ORDER

RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE

Plaintiff Richard L. Byrd (“Byrd”) brings this action against defendant Gwinnett County School District (“GCSD”), alleging claims of race and color discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., as well as a race discrimination claim under 42 U.S.C. § 1981 (“§ 1981”). [Doc. 15].^[1] Byrd also asserts a state law claim against GCSD for violations of the Georgia Whistleblower Act (“GWA”). See [id.]. GCSD moves for summary judgment on Byrd's claims, [Doc 49], which Byrd opposes, [Doc. 52], and GCSD has filed a reply in support of its motion for summary judgment, [Doc. 56]. Byrd also has filed a motion for leave to file a surreply, [Doc. 58], which GCSD opposes, [Doc. 59], and Byrd filed a reply in support of his motion for leave to file a surreply, [Doc. 60]. For the reasons that follow, Byrd's motion for leave to file a surreply, [Doc. 58], is GRANTED, and it is RECOMMENDED that GCSD's motion for summary judgment, [Doc. 49], be GRANTED.

I. FACTUAL BACKGROUND

A. Preliminary Procedural Issues & Compliance with Local Rules Governing Summary Judgment

“In this District, the process for separating disputed from undisputed material facts is governed by Local Rule 56.1(B).” Brandon v. Lockheed Martin Aeronautical Sys., 393 F.Supp.2d 1341, 1347 (N.D.Ga. 2005), adopted at 1345; see also Dobson v. Fulton Cnty., CIVIL CASE NO. 1:19-cv-00902-ELR-RGV, 2020 WL 5549246, at *2 (N.D.Ga. July 9, 2020) (citation omitted), adopted by 2020 WL 5548771, at *7 (N.D.Ga. Aug. 31, 2020). In compliance with Local Rule 56.1(B)(1), GCSD, as movant, filed a statement of undisputed material facts, [Doc. 49-2], and Byrd has responded, [Doc. 54]. Byrd also filed a statement of undisputed material facts, [Doc. 53], to which GCSD has responded, [Doc. 57].^[2] Before addressing the merits of Byrd's claims, the Court must first determine whether it may properly consider certain evidence and statements of fact offered by Byrd in relation to his claims. In its reply brief in support of its summary judgment motion, [Doc. 56], GCSD objects to Byrd's submission of “a transcript based upon a recording neither of which were produced during the discovery period,” [id. at 15 (citing [Doc. 52-10])]. GCSD also “objects to the admissibility of the transcript,” pointing out that Byrd has “failed to produce the original recording” and that the transcript, which is “unauthenticated,” “lacks sufficient support to establish that the document is an accurate depiction of what it claims to be.” [Id. at 16 (citation omitted)]. GCSD asserts that while Byrd “signed a declaration ‘certifying' the transcript, he did not transcribe the recording himself nor does he have any personal knowledge of the processes that were used by the third-party website in the transcription of the recording.” [Id.]. GCSD further argues that the “transcript is inadmissible hearsay within hearsay that is without an exception,” and for all of these reasons, the Court “should decline to consider this improperly produced evidence and any factual statement which relies upon [ it] should not be considered[.]” [Id. at 17 (citations omitted)]; see also [Doc. 57 ¶¶ 47, 48, 49, 61, 74, 75]. Finally, GCSD argues that certain paragraphs of Byrd's “affidavit contradict[] his sworn deposition testimony and his discovery responses” and “is an obvious and transparent sham and should be disregarded by this Court.” [Doc. 56 at 19]; see also [Doc. 52-2 (Pl.'s Decl.) ¶¶ 13, 15, 28a.; Doc. 57 ¶¶ 18, 20, 37].

Byrd has filed a motion for leave to file a surreply brief in order to address GCSD's arguments with respect to the exclusion of certain evidence he submitted in support of his opposition to GCSD's motion for summary judgment, [Doc. 58], which GCSD opposes, [Doc. 59], and Byrd has filed a reply in support of his motion. [Doc. 60]. “Neither the Federal Rules of Civil Procedure nor this Court's Local Rules authorize the filing of surreplies.” Atlanta Fiberglass USA, LLC v. KPI, Co., 911 F.Supp.2d 1247, 1262 (N.D.Ga. 2012) (citation and internal marks omitted); see also Leatherwood v. Anna's Linens Co., 384 Fed.Appx. 853, 857 (11th Cir. 2010) (per curiam) (unpublished) (citation omitted). “Although the Court may in its discretion permit the filing of a surreply, this discretion should be exercised in favor of allowing a surreply only where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1997 (N.D.Ga. 2005) (citations omitted); see also St. James Ent. LLC v. Dash Crofts, Civil Action No. 1:09-CV-1975-RWS, 2010 WL 2802616, at *1 (N.D.Ga. July 13, 2010) (“Certainly, the Court is disinclined to consider arguments raised in a surreply which could have been raised in an earlier filing.”). Otherwise, “[t]o allow such surreplies as a regular practice would put the court in the position of refereeing an endless volley of briefs.” Atlanta Fiberglass USA, LLC, 911 F.Supp.2d at 1262 (citation and internal marks omitted). Because GCSD raised new arguments concerning the admissibility of certain evidence offered by Byrd in its reply brief, see [Doc. 56 at 15-19], Byrd has shown good cause for filing a surreply, and the Court will consider Byrd's surreply, [Doc. 58-1]. Accordingly, Byrd's motion for leave to file a surreply, [Doc. 58], is GRANTED, and the Clerk is DIRECTED to enter Byrd's surreply, [Doc. 58-1], on the docket.

GCSD first objects to the admission of a transcript that is based upon an audio recording by Byrd during a meeting that occurred on July 12, 2021, arguing that since Byrd “did not disclose or produce the audio recording or the transcript of the audio recording until submission of his [r]eply [b]rief in opposition to [GCSD's m]otion for [s]ummary [j]udgment,” and he “did not produce the audio recording of the meeting until May 5, 2023,” after GCSD filed its reply brief in support of its summary judgment motion on May 3, 2023, the “information should be excluded by the [C]ourt,” pursuant to Rule 37(c) of the Federal Rules of Civil Procedure [Doc. 59 at 5 (footnote omitted)], which states:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.^[3]

Fed. R. Civ. P. 37(c)(1). Rule 26(a)(1)(A) provides, in pertinent part:

Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment[.]

Fed. R. Civ. P. 26(a)(1)(A)(ii). Additionally, Rule 26(e) provides, in relevant part:

A party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory, request for production, or request for admission--must supplement or correct its disclosure or response . . . in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]

Fed. R. Civ. P. 26(e)(1)(A). A party's Rule 26(a) initial and supplemental disclosure duties therefore include supplementing discovery responses in a timely manner when the party with the duty to disclose learns that its previous document production was incomplete or when ordered by the Court to supplement or correct its responses, and the “[f]ailure to do either can result in sanctions under Rule 37(c)(1).” In re Delta/Air Tran Baggage Fee Antitrust Litig., 846 F.Supp.2d 1335, 1355 (N.D.Ga. 2012), modified by 2012 WL 12952328 (N.D.Ga. July 18, 2012).

GCSD asserts that Byrd never produced the audio recording or the transcript prior to the close of discovery, even though it requested the production of any “recordings between [Byrd] and any current or former employee of the [GCSD] from January 1, 2021 to present and any recordings and/or any other tangible material documenting any event or circumstances related to [Byrd's] employment with [ GCSD] from January 1, 2021, in paragraphs 13 and 14 of [ GCSD's r]equests for [p]roduction,” yet, “neither the recording, nor the transcript were produced prior to [Byrd's] submission of his [r]eply brief.” [Doc. 59 at 8 (alteration and internal marks omitted)].^[4] In response, Byrd explains that “[u]pon receipt of [ GCSD's r]eply [b]rief, and after reviewing [his] discovery submitted exhibits and determining that the July 12, 2021, audio recording was not submitted as a discovery exhibit, but instead that the exhibit which [his] counsel submitted as Exhibit 12 was a duplicative recording of another [ d]iscovery exhibit . . ., [his] counsel produced such audio recording to [ GCSD's] counsel on May 5, 202[3].”^[5][Doc. 58-1 at 4]. Byrd therefore maintains that the July 12, 2021, audio recording “was inadvertently omitted from his counsel's submission of several audio tape files to [ GCSD's] counsel via...