Johnson v. Unified Sch. Dist. No. 500, Wyandotte Cnty.

TODD JOHNSON, Plaintiff, v. UNIFIED SCHOOL DISTRICT NO. 500, WYANDOTTE COUNTY, KANSAS, Defendant.

Case No. 16-CV-02578-JAR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

June 21, 2018

MEMORANDUM AND ORDER

Plaintiff Todd Johnson brings this action against Defendant Unified School District 500 alleging claims of disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Plaintiff, a former employee of Defendant, claims that Defendant discriminated against him on the basis of his disability when it did not re-hire him for any one of numerous positions for which he applied. Plaintiff also alleges that Defendant discriminated against him by deciding to cease considering him for any future employment whatsoever. This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. 43) and Plaintiff's Motion to Strike the Affidavits of Susan Westfahl, Leala Taylor, Phyllis Olbert and Jewell Ragsdale, Which Were Submitted in Connection with Defendant's Motion for Summary Judgment (Doc. 47). The motions are fully briefed and the Court is prepared to rule. For the reasons stated in detail below, Plaintiff's motion to strike is granted in part and found as moot in part, and Defendant's motion for summary judgment is granted.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law."¹ In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² "There is no genuine [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party."³ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁴ A dispute of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."⁵

The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.⁶ In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.⁷

Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."⁸ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁹ Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."¹⁰ In setting forth these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein."¹¹ To successfully oppose summary judgment, the nonmovant must bring forward "more than a mere scintilla of evidence" in support of his position.¹² A nonmovant "cannot create a genuine issue of material fact with unsupported, conclusory allegations."¹³ Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."¹⁴

II. Plaintiff's Motion to Strike the Affidavits of Susan Westfahl, Leala Taylor, Phyllis Olbert, and Jewell Ragsdale

Before considering the uncontroverted facts in this case, the Court must address Plaintiff's motion to strike the affidavits of Susan Westfahl, Leala Taylor, Phyllis Olbert, and Jewell Ragsdale, which Defendant has submitted in support of its summary judgment arguments.Plaintiff moves to strike the affidavits pursuant to Fed. R. Civ. P. 37(c)(1) because Defendant never previously disclosed these affiants as witnesses as required by Fed. R. Civ. P. 26 and the Court's scheduling order. All four affiants were at all relevant times—and remain today—Defendant's employees. Specifically, Ms. Westfahl is Clerk for Defendant's Board of Education, Ms. Taylor is the Principal of Douglass Elementary School, Ms. Olbert is the Office Manager for Sumner Academy of Arts & Science, and Ms. Ragsdale is the Principal of Coronado Middle School.

On February 15, 2017, Defendant served upon Plaintiff its initial Rule 26 disclosures.¹⁵ Although Defendant's initial disclosures included eight individually-named witnesses, seven of whom are Defendant's employees, it did not include the four witnesses at issue in Plaintiff's motion to strike. On February 23, 2017, Magistrate Judge Gerald L. Rushfelt issued the scheduling order for this case.¹⁶ That order provides:

. . . In addition to other sanctions that may be applicable, a party who without substantial justification fails to disclose information required by Fed. R. Civ. P. 26(a) or Fed. R. Civ. P. 26(e)(1) is not, unless such failure is harmless, permitted to use evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. See Fed. R. Civ. P. 37(c)(1).

Supplementation of those disclosures under Fed. R. Civ. P. 26(e) must be served throughout the case at such time and under such circumstances as required by that rule. In addition, final supplemental disclosures must be served in any event 40 days before the deadline for completion of all discovery. The supplemental disclosures served 40 days before the deadline for completion of all discovery must identify all witnesses and exhibits that probably or even might be used at trial. The opposing party and counsel should be placed in a realistic position to make judgments about whether to take a particular deposition ofpursue follow-up "written" discovery before the time allowed for discovery expires. . . .¹⁷

The scheduling order set a deadline of September 1, 2017 for the completion of all discovery.¹⁸ Thus, the parties were to provide final supplementation of their Rule 26 disclosures 40 days prior to that date, or by August 8, 2017. Defendant supplemented its disclosures on July 21, 2017 with the names of four additional current and former employees.¹⁹ However, Defendant's supplemental disclosures did not include the names of the four witnesses whose affidavits Plaintiff moves to strike.

Under Fed. R. Civ. P. 37(c)(1), when a party fails to designate a witness as required by Fed. R. Civ. P. 26(a),

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. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).²⁰

A district court has discretion in deciding whether a Rule 26 violation is harmless or substantially justified.²¹ In so deciding, the Court looks to several factors: "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure theprejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness."²² The burden to demonstrate that the failure to disclose is harmless or substantially justified is on the party who failed to properly disclose.²³

Plaintiff argues that the affidavits of Ms. Westfahl, Ms. Taylor, Ms. Olbert, and Ms. Ragsdale should be stricken because these individuals were never previously identified as witnesses and their affidavits are now being offered to deny or rebut Plaintiff's claim of disability discrimination. Specifically, Ms. Westfahl's affidavit describes the role of Defendant's Human Resources Department in the hiring of job applicants and sets forth the number of applicants for various positions for which Plaintiff applied but was not hired.²⁴ The remaining three affidavits discuss the qualifications of the individuals who were ultimately hired for the positions of Principal's Secretary at Douglass Elementary School (Taylor Affidavit),²⁵ High School Athletics Secretary/Principal's Secretary at Sumner Academy of Arts & Science (Olbert Affidavit),²⁶ and Principal's Secretary/Treasurer at Coronado Middle School (Ragsdale Affidavit).²⁷ Plaintiff points out that the information set forth in the affidavits was known to Defendant well before the close of discovery, as was the identity of the four affiants, who are all Defendant's employees. Plaintiff argues that Defendant has no valid justification for its failure to disclose these affiants, and that Plaintiff will be prejudiced if the Court considers their affidavits because Plaintiff had no opportunity to discover information about their testimony,through taking their depositions or otherwise. Plaintiff argues that curing such prejudice would require reopening discovery and that additional briefing on dispositive motions may be necessary.

Defendant makes a variety of arguments in opposition to Plaintiff's motion to strike. With respect to Ms. Westfahl, Defendant argues that she "falls under a category of witness that was identified,"²⁸ namely witnesses needed to lay the foundation for the admission of exhibits.²⁹ Defendant also argues that Ms. Westfahl's affidavit was submitted in lieu of that of Dr. Kelli Mather, who was included in Defendant's supplemental disclosures but was sick at the time Defendant's summary judgment motion was due...