Smith v. Vestavia Hills Bd. of Educ.

ANITA SMITH, Plaintiff, v. VESTAVIA HILLS BOARD OF EDUCATION, Defendant.

CIVIL ACTION NO.: 2:16-CV-842-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 21, 2018

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Anita Smith ("Plaintiff" and/or "Smith") has sued her former employer, the Vestavia Hills Board of Education ("Defendant," "VHBE," and/or the "Board") for race discrimination in violation of: Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17 ("Title VII"); 42 U.S.C. §§ 1981 and 1981(a) ("Section 1981"); and 42 U.S.C. § 1983 ("Section 1983). (Doc. 21, Count One). She also claims she was discriminated against based on her age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (the "ADEA"). (Count Two). Finally, she claims that Defendant retaliated against her, in violation of Title VII, Section 1981, and the ADEA, after she opposed the Defendant's alleged discrimination against her. (Count Three).

This case is now before the Court on: Defendant's Motion for Summary Judgment (doc. 34); Plaintiff's Motion To Strike Undisclosed Witnesses (doc. 53); Plaintiff's Motion To Strike Declarations (doc. 54); Plaintiff's Motion To Strike Court Document 55, Defendant's Response in Opposition to Plaintiff's Objection and Motion To Strike (doc. 56); Defendant's Motion To Strike Plaintiff's Exhibit 2 Attached to Her Response in Opposition to Defendant's Motion for Summary Judgment¹ (doc. 60); Defendant's Motion To Strike Plaintiff's Exhibits 5, 9, 10 and 21 (doc. 62); Defendant's Motion To Strike Plaintiff's Exhibit 16 (doc. 63); Defendant's Motion To Strike Plaintiff's Citations to Articles (doc. 64); and Defendant's Motion To Strike Portions of Plaintiff's Response Brief (doc. 65). The motions are fully briefed and are under submission. (See docs. 55, 57, 58, 59, 66, 68, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, and 82). After careful review, and for the reasons explained below, Defendant's Motion for Summary Judgment is due to be GRANTED. Plaintiff's and Defendant's motions to strike are due to be GRANTED and/or DENIED as set out herein.

II. CHALLENGES TO THE RULE 56 FILINGS

Before the Court reaches the merits of Defendant's Motion for Summary Judgment, it must determine what evidence and/or portions of briefs are due to be excluded. In order to make that determination, the Court must first decide which pleadings will be considered. Thus, the Court turns first to Plaintiff's Motion To Strike Court Document 55, Defendant's Response in Opposition to Plaintiff's Objection and Motion To Strike. (Doc. 56).

This motion (doc. 56) seeks to strike Defendant's response in opposition to one of Plaintiff's motions to strike. The basis for the motion is that it was untimely under the Court's briefing schedule. And it was. Nevertheless, the Court declines to exclude Defendant's response. Plaintiff has addressed the merits of Defendant's response by filing a reply. (Doc. 66). Accordingly, the Court cannot discern any prejudice suffered by Plaintiff as a result of Defendant's untimely response brief.

Having decided what pleadings to allow, the Court now turns to the parties' multiple filings on alleged briefing violations and evidentiary issues.² Plaintiff andDefendant both challenge significant portions of the record presented by the opposing party. Plaintiff seeks to exclude the declarations³ of Dr. Mark Richardson, Dr. Tyler Burgess, Grace Hicks, and Dawn Skewes because these individuals were not disclosed until after discovery had closed. (Doc. 53).⁴ Plaintiff also seeks to exclude, as "sham declarations," the declarations of Tim Loveless and Sheila Phillips, and to exclude the declaration of Grace Hicks for Defendant's failure to timely disclose her. (Doc. 54). Plaintiff also seeks to exclude certain portions of the declarations of Tim Loveless and of Grace Hicks as hearsay, unsupported ultimate conclusions, and/or irrelevant. (Doc. 54). Defendant asks the Court to strike various exhibits submitted by Plaintiff in opposition to the Motion for Summary Judgment. (Docs. 60, 61, 63, and 64). Defendant asserts that: Plaintiff's Exhibit 2 is irrelevant (doc. 60); portions of Plaintiff's Exhibits 5, 7, 9, 10 and 21 are improper summaries (doc. 61); four documents within Plaintiff's Exhibit 16 have not been authenticated (doc. 63); and Plaintiff's citations to unauthenticated law review articles and websites should be struck (doc. 64). Defendant also objects to the portions of Plaintiff's brief in opposition to summary judgment that refer to these unauthenticated law reviewarticles and websites, and objects to facts that are improperly contained without citation to the evidentiary record in Plaintiff's response to Defendant's statement of undisputed facts. (Doc. 65).⁵ Finally, Defendant asks the Court (doc. 65) to strike those portions of Plaintiff's brief opposing summary judgment (doc. 68) that fail to comply with Appendix II to this Court's Uniform Initial Order (doc. 10).

A. Plaintiff's Rule 26 Challenges

Plaintiff's Rule 26 challenges are set out both in documents 53 and 54.⁶ Specifically, she asks this Court to exclude the declarations of Dr. Mark Richardson, Dr. Tyler Burgess, Grace Hicks, and Dawn Skewes. She states that, in violation of FED. R. CIV. P. 26, none of these individuals were identified by Defendant prior to the close of discovery. Accordingly, she says, their declarations must be struck. FED. R. CIV. P. 37(b)(2)(A) and (c)(1).

Defendant responds that these individuals were timely disclosed and/or otherwise known to Plaintiff. (Doc. 55). Defendant states: (1) Grace Hicks and DawnSkewes were listed in plaintiff's Third Amended Initial Disclosures;⁷ (2) Defendant's Initial Disclosures provided the following: "Defendant also identifies any other individual listed in plaintiff's Rule 26 disclosures, any party's deposition, plaintiff's witness list and plaintiff's responses to discovery requests;" and (3) additionally, all of these individuals' identities and positions with Defendant were disclosed to Plaintiff numerous times throughout discovery in this case, both during depositions and in documents produced in response to Plaintiff's multiple Request for Production of Documents. Defendant then listed, as to each individually challenged declarant, multiple examples of such disclosures.

In reply (doc. 66), Plaintiff disagrees with Defendant's interpretation of Rule 26, says that this Court's Order (as "always understood" by Plaintiff's counsel) is broader than Rule 26, and posits several questions. However, Plaintiff intentionally omits language that makes clear that her counsel's "understanding" is not supportable. Specifically, Plaintiff quotes (only) the following language as the basis for this "understanding":

Here, the Court's Scheduling Order provides that "no person may testify whose identity, being subject to disclosure or timely requested in discovery, was not disclosed in time to be deposed or to permit the substance of his knowledge and opinions to be ascertained."

(Doc. 66 at 4)(emphasis in original). By omitting the context, and indeed, by omitting the first portion of the sentence she does set out, the Court can only conclude that Plaintiff seeks to mislead.⁸ That effort fails, as does Plaintiff's argument that this Court has imposed through its Scheduling Order disclosure obligations broader than those set out in Rule 26.

Turning now to Rule 26, the Court notes that a party generally is required to disclose the names of individuals likely to have discoverable information that will be used to support a claim or defense. FED. R. CIV. P. 26(a)(1)(A). This initial disclosure must be supplemented in a timely manner if the initial disclosure was materially incomplete "and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process." Id. 26(e)(1)(A)(emphasis supplied). Rule 37 prohibits a party from using a witness's testimony to support a motion if it has failed to identify that witness in accordance with Rule 26, unless the failure to disclose was substantially justified or harmless.FED. R. CIV. P. 37(c)(1)(emphasis supplied).

The Court has reviewed Defendant's detailed and extensive list of its disclosures of these declarants, and finds that said disclosures not only informed Plaintiff of the names of the declarants, but did so in such a way that the facts to which they could likely testify was clear. For that reason, the Court finds that, as to each such declarant, Plaintiff's request to exclude the declarations based on Rule 26 is due to be denied.

B. Challenges to Declarations

Plaintiff's asks the Court (doc. 54) to strike the declarations of Tim Loveless and of Sheila Phillips on the basis that they are "sham" declarations.⁹ She also seeks to exclude portions of the Loveless declaration, and portions of the declaration of Grace Hicks, as hearsay, unsupported ultimate conclusions, and/or irrelevant.¹⁰

"A court may determine that an affidavit is a sham when it contradicts previous deposition testimony and the party submitting the affidavit does not give any valid explanation for the contradiction." Latimer v. Roaring Toyz, 601 F.3d 1224, 1237 (11th Cir. 2010). "When a party has given clear answers to unambiguous questionswhich negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). The Court must apply the sham affidavit doctrine sparingly, though, "because of the harsh effect it may have on a party's case." Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1316 (11th Cir. 2007) (quoting Rollins v. TechSouth, 833 F.2d 1525, 1530 (11th Cir. 1987)). For example, the Court should not use the...