Powell v. the Dallas Morning News L.P.

776 F.Supp.2d 240

Larry Randall POWELL, et al., Plaintiffs,

v.The DALLAS MORNING NEWS L.P., et al., Defendants.

Civil Action No. 3:06–CV–1960–BF.

United States District Court, N.D. Texas, Dallas Division.

March 28, 2011.

Howard C. Rubin, Lisa Catherine Tulk, Kessler Collins, Karen G. Shropshire, Greer & Shropshire LLP, Dallas, TX, Lawrence B. Greer, Greer & Shropshire LLP, Houston, TX, for Plaintiffs.Robert E. Sheeder, Christopher L. Maberry, Morgan D. Meyer, Bracewell & Giuliani LLP, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

PAUL D. STICKNEY, United States Magistrate Judge.

This is a consent case before the United States Magistrate Judge. The Motion for Summary Judgment of Defendants, The Dallas Morning News, Inc. ¹ (“TDMN”); Belo Corp. (“Belo”); Belo Benefits Administrative Committee (the “Committee”), as plan administrator for the G.B. Dealey Retirement Pension Plan (the “Pension Plan”); and Belo Savings Plan (the “Savings Plan”) (collectively, “Defendants”) (doc. 241) is under consideration. Plaintiffs are Larry Randall Powell, Lawrence William DeOre, Paula F. Watson, Gary Van West, Raul Prezas Reyes, Timothy Arthur O'Leary, Jan Michael Hubbard, Michael S. Coons, John Paul Chamless, Ira Hadnot Alexander, Deborah Sue Voorhees, Linston Robert Lofley, Karen Patterson, Linda Jones, Gary Stratton, Ewina H. Schumacher, Paulette Ladach, and Stephen Wayne Yount.

In their Third Amended Complaint (doc. 176), Plaintiffs allege that TDMN terminated their employment during a 2004 reduction in force (“RIF”). Seventeen of the Plaintiffs (all but Karen Patterson) (“ADEA Plaintiffs”) bring claims under the Age Discrimination in Employment Act (“ADEA”) based on theories of disparate impact and disparate treatment. Although TDMN was their former employer, the ADEA Plaintiffs bring the same ADEA claims against Belo, contending Belo was a “joint employer” with TDMN. All Plaintiffs (“Plaintiffs”) bring claims under § 502 of the Employee Retirement Income Security Act (ERISA) against Belo and the Committee, as administrators for the Pension Plan and the Savings Plan, for failure to timely provide them with copies of summary plan descriptions related to 2004 amendments to the Pension Plan and the Savings Plan.²

Pending Motions and Objections to Summary Judgment Evidence

In addition to Defendants' Motion for Summary Judgment, the following motions are before the Court for consideration: Plaintiffs' Motion for Leave to File Consolidated Supplemental Appendix in Support of Plaintiffs' Response to Defendants' Objections to Plaintiffs' Declarations, filed December 10, 2010 (doc. 287); Plaintiffs' Motion for Leave to File Consolidated Supplemental Appendix in Support of Plaintiffs' Response to Defendants' Objections to Mischaracterization of Summary Judgment Evidence, filed December 10, 2010 (doc. 285); and Defendants' Motion to Strike Appendix in Support of Declaration of Michael A. Campion [doc. 280], filed December 1, 2010 (doc. 283). The Court has considered the motions. the responses, and a reply.

This case was filed in 2006. Defendants' Motion for Summary Judgment was filed April 30, 2010. The Court granted the parties' multiple requests for extensions during the summary judgment briefing period. The Court granted exceptions to the local summary judgment rules by permitting the parties to greatly exceed page limitations.³ The parties filed unlimited Appendices in support of the summary judgment, the response, and the reply. Defendants filed their reply in support of the summary judgment on October 14, 2010. However, the parties filed, and the Court granted, unopposed motions for extensions of time to file various responses and replies to objections. The filings continued until December 28, 2010.

Plaintiffs' motions (docs. 285 and 287), filed December 10, 2010, seek to change the summary judgment record because of mistakes and omissions in their responsive filings of August 29, 2010 (docs. 249, 250, & 252–61). The Court granted Plaintiffs two extensions of time to file their responsive pleadings. The Court finds that Plaintiffs' motions are untimely and seek to expand the record with materials that should have been included in Plaintiffs' August 29, 2010 responsive pleadings. Pursuant to the Court's inherent power to control its docket and prevent undue delay, Plaintiffs' motions (docs. 285 and 287) are DENIED.

On November 17, 2010, without seeking leave of Court, Plaintiffs filed a supplemental declaration by their expert witness, Michael Campion, including it in an “Appendix in Support of Plaintiffs' Response to Defendants' Objections to the Declaration of Michael A. Campion Filed in Support of Plaintiffs' Response to Defendants' Motion for Summary Judgment (doc. 280). Defendants filed a Motion to Strike the supplemental declaration of Plaintiffs' expert witness on December 1, 2010 (doc. 283). When Plaintiffs filed the supplemental declaration, Defendants had deposed Michael Campion and the discovery deadline had expired. The Supplemental Declaration attempts to bolster Campion's credentials and show that the “reasonable HR practices” he described were based upon an acceptable approach to scientific inquiry. The Supplemental Declaration is in violation of the Local Rules, is untimely, and has already generated a request to reopen discovery and to depose Campion again (doc. 294). Pursuant to the Court's inherent power to control its docket and prevent undue delay, Defendants Motion to Strike (doc. 283) is GRANTED. The Clerk is ordered to strike document 280, and the Court will not consider the supplemental appendix in reaching the decision on Defendants' Motion for Summary Judgment.

The parties filed objections to the summary judgment evidence, responses, and replies. Evidence on summary judgment may be considered to the extent that it is not based on hearsay or other information that is not admissible at trial. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.1995). Statements that are conclusory and based upon speculation will not be considered. See Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir.2003) (holding that unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment). Plaintiffs and Defendants object to each others' evidence on the grounds that it is speculative or conclusory, both with respect to fact witnesses and expert witnesses. In evaluating all of the evidence, the Court has disregarded any speculative, conclusory, or hearsay evidence and has considered only competent summary judgment evidence in deciding Defendants' summary judgment motion. Accordingly, any objections not specifically addressed are overruled as moot.

Plaintiffs object to the declarations of the various decision-makers who recommended Plaintiffs for termination during the RIF, specifically to the decision-makers' averments that they did not consider the employee's age in recommending the employee for termination in the RIF. Plaintiffs' object that the averments are vague, conclusory, lack a proper foundation, and fail to set forth how affiant has personal knowledge of the facts alleged. However, most of the evidence in question is not presented for the truth of the matter asserted; rather, it is submitted to show the decision-makers' states of mind when they recommended Plaintiffs for termination. The decision-makers who decided which employees to terminate clearly had personal knowledge of the factors they considered in arriving at their recommendations. Plaintiffs' objections to the decision-makers declarations are overruled.

A court cannot consider an affidavit or declaration that contradicts prior testimony or admissions for the purposes of creating a fact issue because it is not competent summary judgment evidence. See e.g., Crowe v. Henry, 115 F.3d 294, 298 n. 4 (5th Cir.1997); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.1996); Schiernbeck v. Davis, 143 F.3d 434, 438 (8th Cir.1998). Under the “sham affidavit” doctrine, a “nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony.” Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir.1984); Kennett–Murray Corp. v. Bone, 622 F.2d 887, 894–95 (5th Cir.1980); In re CitX Corp., 448 F.3d 672, 679 (3d Cir.2006). Courts have consistently disregarded such sham affidavits as nothing more than an attempt to “manufacture a disputed material fact where none exists.” Albertson, 749 F.2d at 228. The rule applies to exclude affidavits which contradict prior deposition testimony of the affiant. Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir.1985). The Court sustains Defendants' objections to any of Plaintiffs' declarations and to the declarations of their expert witness which directly contradict the declarants' previous testimony.

With respect to Defendants' Objections to the Declaration of Michael A. Campion, the Court sustains Defendants' general objections in part and denies them in part as moot. As the Court will explain in examining Defendants' Reasonable Factor Other than Age (“RFOA”) defense, the expert witnesses' 20 Reasonable HR Practices that Defendants allegedly should have known about and used during the RIF are irrelevant. Plaintiffs can rebut Defendants' RFOA defense only by demonstrating that the factors offered by Defendants are unreasonable. See, e.g., Smith, 544 U.S. at 243, 125 S.Ct. 1536 (noting RFOA does not permit rebuttal by showing that other reasonable methods not resulting in a disparate impact were available). There is no requirement under the RFOA prong of the ADEA that the least-discriminatory method be implemented. Smith, 544 U.S. at 243, 125 S.Ct. 1536. The Court sustains Defendants' objection and excludes Campion's testimony about his 20 Reasonable HR Practices as irrelevant and hence, inadmissable.

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