Walker-Swinton v. Philander Smith Coll.

PATRICIA WALKER-SWINTON PLAINTIFF v. PHILANDER SMITH COLLEGE, et al. DEFENDANTS

Case No. 4:18-cv-00886-KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

March 31, 2021

OPINION AND ORDER

Plaintiff Patricia Walker-Swinton alleges that defendant Philander Smith College ("PSC") discriminated against her based on her gender, harassed her, denied her equal pay, and retaliated against her in violation of 42 U.S.C. § 2000e et seq. ("Title VII") and the Arkansas Civil Rights Act, Ark. Code Ann. §§ 16-123-101 et seq. ("ACRA"). She also brings a state law claim for breach of contract. Before the Court is PSC's motion for summary judgment (Dkt. No. 116). Ms. Walker-Swinton has responded to the motion for summary judgment (Dkt. Nos. 143-148). PSC also filed a motion to strike Ms. Walker-Swinton's amended response to PSC's statement of undisputed fact ("amended response") and her amended brief in response to PSC's motion for summary judgment ("amended brief") and, alternatively, moves to strike portions of those pleadings (Dkt. No. 154). Ms. Walker-Swinton responded to the motion to strike (Dkt. No. 165).

Also pending are several motions, including: PSC's motion to compel the deposition of Reginald Swinton; PSC's motion to quash subpoenas, or alternatively, for protective order; PSC's motion for leave to file reply brief in support of motion to compel deposition of Reginald Swinton; and PSC's motion for leave to file a reply brief in support of motion to quash subpoenas (Dkt. Nos. 86, 88, 120, 124).

The Court grants in part and denies in part the motion to strike (Dkt. No. 154). The Court grants the motion for summary judgment (Dkt. No. 116). The Court grants PSC's motions to file reply briefs, directs PSC to file its' briefs within 14 days from entry of this Order, and has considered its proposed replies when ruling on the pending motions (Dkt. Nos. 120, 124). The Court denies as moot PSC's motion to compel deposition of Reginald Swinton, motion for alternative service or subpoena, and motion for costs and fees (Dkt. No. 86), and PSC's motion to quash subpoenas, or alternatively, for protective order (Dkt. No. 88).

I. Background

A. Procedural History

In her complaint, Ms. Walker-Swinton alleges that defendants PSC, Dr. Roderick Smothers, Sr., and Dr. Zollie Stevenson, Jr., discriminated against her based on her gender and age, harassed her, denied her equal pay, and retaliated against her in violation of 42 U.S.C. §§ 1981 and 1983 and Title VII. Defendants moved to dismiss certain claims made by Ms. Walker-Swinton for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. Nos. 7, 21).

The Court dismissed without prejudice Ms. Walker-Swinton's claims against defendants under §§ 1981 and 1983 for failure to state a claim upon which relief may be granted (Dkt. No. 41). The Court also dismissed without prejudice the following claims: (1) Ms. Walker-Swinton's gender discrimination and retaliation claims under Title VII against Dr. Smothers and Dr. Stevenson in their individual capacities; (2) Ms. Walker-Swinton's gender discrimination claims under the ACRA against Dr. Smothers and Dr. Stevenson in their individual capacities; and (3) Ms. Walker-Swinton's age discrimination claims against defendants under Title VII and the ACRA (Id.). In addition, the Court dismissed with prejudice Ms. Walker-Swinton's Title VII claims against defendants based upon her October 2017 demotion and her Title VII claims arising from incidents that occurred prior to April 1, 2018 (Id.). The Court granted defendants Dr.Smothers and Dr. Stevenson's motion for reconsideration and dismissed Ms. Walker-Swinton's employment-based retaliation claims under the ACRA against Dr. Smothers and Dr. Stevenson in their individual capacities (Dkt. No. 42, 61). Accordingly, PSC is the sole remaining defendant in the case, and Ms. Walker Swinton's remaining claims against PSC are her claims of gender discrimination,¹ harassment, and retaliation against PSC under Title VII and the ACRA,² and her state law claim for breach of contract.

B. PSC's Motion To Strike

To determine whether there are any genuine issues of material fact in dispute in this matter, the Court will first consider PSC's motion to strike plaintiff's amended response and amended brief (Dkt. No. 154). PSC brings its motion under Federal Rules of Civil Procedure 12(f), 56(c)(4), and 56(e) and Local Rule 56.1(b) (Id., ¶ 5). PSC attaches to its motion excerpts from Ms. Walker-Swinton's interrogatory responses, responses to requests for production, and correct second requests for production (Dkt. No. 154-1). Ms. Walker-Swinton responds in opposition to themotion and attaches several exhibits to her brief in support of her response to the motion to strike (Dkt. No. 165; 166-1, 166-2, 166-3, 166-4, 166-5, 166-6, 166-7, 166-8).³

1. Legal Standard

Federal Rule of Civil Procedure 12(f) provides that a court "may strike from a pleading. . . any redundant, immaterial, impertinent, or scandalous matter." An allegation contained in a pleading is immaterial if it "has no essential or important relationship to the claim for relief or the defenses being pleaded." CitiMortgage, Inc. v. Just Mortgage, Inc., No. 4:09 CV 1909 DDN, 2013 WL 6538680, at *7 (E.D. Mo. Dec. 13, 2013) (internal quotations omitted). An allegation is impertinent if it "consists of statements that do not pertain, and are not necessary, to the issues in question." Id. While Rule 12(f) is understood to provide courts with "liberal discretion," the Eighth Circuit Court of Appeals has stated that "striking a party's pleadings is an extreme measure, and, as a result, we have previously held that '[m]otions to strike under Fed. R. Civ. P. 12(f) are viewed with disfavor and are infrequently granted.'" Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (quoting Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977)).

Local Rule 56.1(b) of the United States District Court for the Eastern and Western Districts of Arkansas requires a non-moving party to supply the Court with a statement of material facts "as to which it contends a genuine issue exists to be tried." See Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1088 (8th Cir. 2011). Federal Rule of Civil Procedure 56(c) requires that "[a] partyasserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

Inadmissible hearsay may not be considered by the Court when deciding whether to grant summary judgment. Anda v. Wickes Furniture, 517 F.3d 526, 534 (8th Cir. 2008). Further, "[a] party should not be allowed to create issues of credibility by contradicting his own earlier testimony." Popoalii v. Correctional Medical Servs., 512 F.3d 488, 498 (8th Cir. 2008). Federal Rule of Civil Procedure 56(c)(2) states that "[a] party may object that 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). Federal Rule of Civil Procedure 56(c)(4) states that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

Under Federal Rule of Civil Procedure 56(e), "[i]f a party fails to properly support an assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order." Fed. R. Civ. P. 56(e).

This Court will examine in turn each argument PSC makes in support of its motion to strike.

2. Analysis: Motion To Strike Amended Pleadings In Their Entirety

PSC first moves to strike in their entirety Ms. Walker-Swinton's amended response and amended brief on grounds that the amended pleadings were filed without leave of the Court and were untimely under the Court's Order granting Ms. Walker-Swinton an extension of time (Dkt. No. 154, ¶ 3).

PSC filed a statement of undisputed material facts in support of its motion for summary judgment (Dkt. No. 118). The Court granted Ms. Walker-Swinton two motions for extension of time to file her response to the motion for summary judgment and ordered Ms. Walker-Swinton to respond to the motion for summary judgment by Saturday, August 1, 2020 (Dkt. Nos. 128, 142).

On August 1, 2020, Ms. Walker-Swinton filed a response to PSC's motion for summary judgment, a 56 page brief in support attaching 45 exhibits, and a 52 page response to PSC's statement of undisputed facts (Dkt. Nos. 143, 144, 145). On Sunday, August 2, 2020, Ms. Walker-Swinton filed a 38 page amended response to PSC's statement of undisputed facts and a 56 page amended brief in support of her response attaching 91 exhibits (Dkt. Nos. 147, 148). PSC contends the Court should strike the amended pleadings because Ms. Walker-Swinton did not request leave of the Court to file her amended pleadings and because they were untimely filed beyond the extended deadline set by the Court.

PSC points to Rules 7.2(b) and 56.1 of the Local Rules of the Eastern and Western Districts of Arkansas to argue, "[t]here is no provision...