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Jackson v. Kansas City Kansas Public Schools Unified School District No. 500

United States District Court, D. Kansas

May 3, 2019




         Pro se[1] plaintiff Marcia L. Jackson brings two Title VII claims against defendant Kansas City, Kansas Public Schools Unified School District No. 500. One, plaintiff alleges that defendant[2] permitted a co-worker to sexually harass her after she reported to her supervisor that the co-worker had threatened to beat her up. Two, plaintiff alleges that defendant terminated her employment in retaliation for reporting a separate incident of sexual harassment.

         Before the court are three motions. In the first one, defendant moves for summary judgment (Doc. 86). Plaintiff has responded with a Memorandum in Opposition (Doc. 92). And, defendant has filed a Reply (Doc. 105). But, to address defendant's Motion for Summary Judgment, the court first must resolve the two other pending motions.

         The second motion challenges the Pretrial Order (Doc. 84). After Magistrate Judge Teresa J. James entered the Pretrial Order on October 1, 2018, plaintiff filed an Objection (Doc. 85). Defendant then made a two-part filing: the Clerk has categorized this filing as a Response to plaintiff's Objection and a separate Motion to Strike Plaintiff's Objection to the Pretrial Order (Doc. 89). Plaintiff then filed a Response to the defendant's Motion to Strike (Doc. 90). Defendant, in turn, filed a Reply (Doc. 91). And, plaintiff filed a Sur-reply (Doc. 97).

         The final pending motion is plaintiff's Motion to Strike Affidavit and Exhibits (Doc. 94). In short, plaintiff challenges an affidavit-and the attached exhibits-that defendant has included with its Memorandum in Support its Motion for Summary Judgment. Defendant has filed a Memorandum in Opposition to plaintiff's Motion to Strike (Doc. 103).

         For reasons explained below, defendant's Motion to Strike (Doc. 89) is granted. Plaintiff's Motion to Strike Affidavit and Exhibits (Doc. 94) is granted in part and the rest is denied. And, defendant's Motion for Summary Judgment (Doc. 86) is granted.

         I. Defendant's Motion to Strike Plaintiff's Objection to Pretrial Order (Doc. 89)

         Plaintiff has objected to defendant's legal defenses listed in the Pretrial Order (Doc. 84). She also argues that defense counsel did not act in good faith after the court ordered defense counsel to revise the Pretrial Order following the pretrial conference on September 20, 2018. See Doc. 80. In response, defendant contends that its Answer (Doc. 10) contains all the defenses plaintiff has objected to in the Pretrial Order.

         Under Federal Rule of Civil Procedure 16(e), the court may hold a final pretrial conference to formulate a trial plan. Fed.R.Civ.P. 16(e). Once approved by the court, the pretrial order supersedes all pleadings and controls the subsequent course of the case. Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (“When an issue is set forth in the pretrial order, it is not necessary to amend previously filed pleadings because the pretrial order is the controlling document for trial.” (internal quotations and citations omitted)); D. Kan. Rule 16.2(b). The court may alter the final pretrial order only “to prevent manifest injustice.” Fed.R.Civ.P. 16(e); Monfore v. Phillips, 778 F.3d 849, 851 (10th Cir. 2015) (Gorsuch, J.) (explaining this high standard “ensure[s] everyone involved has sufficient incentive to fulfill the order's dual purposes of encouraging self-editing and providing reasonably fair disclosure to the court and opposing parties alike of their real trial intentions.”).

         The court overrules plaintiff's objections to the Pretrial Order. Defendant included each challenged defense in its Answer, which it filed in March 2018. Doc. 10 at 3-4; Doc. 84 at 8-10. And so, plaintiff cannot argue that defendant amended its previous pleadings by including a new defense in the Pretrial Order. See Wilson, 303 F.3d at 1215 (“[W]e do not normally expect to see claims or defenses not contained in the pleadings appearing for the first time in the pretrial order[.]”). The purpose of Rule 16 is to “avoid surprise, not foment it.” Id. at 1216 (citation omitted). But, here, these defenses could not have surprised plaintiff because defendant asserted them in its Answer seven months before the court entered the final Pretrial Order. The court thus overrules plaintiff's objections to the Pretrial Order.[3]

         II. Plaintiff's Motion to Strike Defendant's Affidavit and Exhibits (Doc. 94)

         Next, the court addresses plaintiff's Motion to Strike Defendant's Affidavit and Exhibits (Doc. 94).[4] Plaintiff's motion zeroes in on the affidavit of defendant's custodian of records- Susan Westfahl-and the exhibits submitted with Ms. Westfahl's affidavit. Plaintiff's Motion to Strike advances three arguments. First, plaintiff contends that the court should strike Ms. Westfahl's affidavit because defendant failed to disclose her as a witness under Fed.R.Civ.P. 26(a). Second, plaintiff asks the court to strike the 18 exhibits attached to Ms. Westfahl's affidavit because defendant failed to produce them in a timely manner. Third, reading plaintiff's motion liberally, plaintiff moves to strike Exhibits 11-14 as inadmissible because plaintiff has failed to authenticate them. The court grants plaintiff's motion in part and denies the rest.

         A. Susan Westfahl's Affidavit

         First, plaintiff contends that the court should strike Susan Westfahl's affidavit because defendant failed to disclose her as a witness under Fed.R.Civ.P. 26(a) and (e). Ms. Westfahl's affidavit primarily serves to authenticate documents-specifically, defendant attaches 18 exhibits to Ms. Westfahl's affidavit. Ms. Westfahl avers that she is the Clerk of the Board of Education and that Kansas law charges her with the care and custody of the Board of Education's records, books, and documents. Ms. Westfahl's affidavit certifies each attached exhibit as a “true and accurate copy.” Doc. 87-1 at 2-5. So, plaintiff contends, the court must disregard any exhibit relying on Ms. Westfahl's affidavit.

         Defendant's Memorandum in Opposition (Doc. 103) concedes that it did not identify Ms. Westfahl by name in its Rule 26 disclosures. But, defendant contends, the court should excuse this omission because it is harmless and substantially justified.

         Rule 26(a) requires the parties to disclose, in part, the following:

[T]he name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.]

         Rule 26(a)(1)(A)(i). If a party fails to identify a witness in its disclosures under Rule 26(a) and (e), the court may prevent the party from using that witness to supply evidence on a motion unless the failure is substantially justified or harmless. Fed.R.Civ.P. 37(c)(1). Several factors influence the analysis whether a Rule 26 violation is harmless or substantially justified: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1130 (10th Cir. 2011) (quoting Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999)). The party who failed to make or supplement the initial disclosure carries the burden to show the non-disclosure was harmless or justified. Umbenhower v. Copart, Inc., 222 F.R.D. 672, 675 (D. Kan. 2004).

         Resolving this dispute requires a brief retrospective of the case's timeline. Defendant made its initial disclosures on May 18, 2018. Doc. 19. In its initial disclosures, defendant listed “[a]ll witnesses needed to lay foundation for admission of exhibits.” Doc. 94-1 at 4. The Scheduling Order gave the parties up to 40 days before the discovery deadline to supplement their initial disclosures. Doc. 17 at 2. The court directed the parties to complete discovery by August 24, 2018. Id. So, the Scheduling Order permitted the parties to supplement their Rule 26 disclosures until July 16, 2018. Defendant did not supplement its disclosures until December 21, 2018-more than five months after the deadline.

         Defendant avers that it did not disclose Mr. Westfahl in its Rule 26 disclosures because defendant believed that the parties had agreed that authenticating affidavits would not be necessary on summary judgment. Specifically, defendant contends that the parties agreed-for summary judgment and trial-to waive foundation and authentication objections for exhibits marked or used during depositions and any document produced in discovery. Defendant asserts that it decided not to supplement its disclosure with authentication witnesses by the July 16 deadline based on this understanding.

         The proceedings conducted at the Pretrial Conference support defendant's contention. The Pretrial Conference was held on September 20, 2018, several months after the supplemental disclosure deadline. Under our Local Rules, the parties must try in good faith to draft a pretrial order that the judge can sign at the pretrial conference. But, should the “parties disagree on any particulars, they are each to submit proposed language on the points in controversy, for the judge to rule on at the conference.” D. Kan. Rule 16.2(a). The parties' proposed pretrial order included the exhibits-now contested-as stipulated exhibits. And, the proposed order did not disclose any dispute about the stipulated exhibit list, nor did the parties submit competing proposed language. The revisions made to the proposed pretrial order at the pretrial conference favor the conclusion that plaintiff revoked her consent to waive foundation and authentication objections during the Pretrial Conference.

         To the extent defendant has violated Rule 26, the court finds the failure substantially justified. Defendant-as the party who failed to disclose-bears the burden to show its actions were substantially justified or harmless. Estate of McDermed v. Ford Motor Co., No. 14-CV-2430-CM-TJJ, 2016 WL 1298096, at *4 (D. Kan. Apr. 1, 2016). So, defendant's arguments that plaintiff has failed to articulate how she was surprised or prejudiced incorrectly shifts the burden to plaintiff. See, e.g., Doc. 103 at 2.

         But, burden shifting errors aside, the court considers defendant's failure substantially justified. Several things support this conclusion. First, defendant identified-as a class- witnesses needed to lay the foundation for exhibits. And, in light of the purported agreement between the parties-permitting the parties to offer certain exhibits for summary judgment and trial without additional foundation or authentication-plaintiff revoking the agreement at the final pretrial conference created something of a Catch-22 for defendant. That is, if the parties proceeded with the understanding that authentication and foundation was not an issue, then defendant would not have supplemented its disclosures after the July amendment deadline. And so, the court declines to strike the statements in Ms. Westfahl's affidavit laying the foundation for and authenticating certain documents. The court denies the portion of plaintiff's motion challenging Ms. Westfahl's foundational assertions.

         But, importantly, Ms. Westfahl's affidavit isn't limited to foundation testimony. It also includes three fact statements about Eugene Swygert-one of plaintiff's alleged harassers. Those statements address Mr. Swygert's termination from employment. Defendant asserts that it included these statements in the disputed affidavit as background, and that they are not material to its summary judgment motion. Background or not, defendant was required to disclose Ms. Westfahl if it intended to adduce testimony from her. This is the essential precept of Rule 26. Defendant didn't comply with this mandate, so the court will not consider these statements found in paragraphs 13-15 of Ms. Westfahl's affidavit. They go beyond authentication and foundation, and plaintiff reasonably could sustain prejudice from them. Cf. Estate of McDermed, 2016 WL 1298096, at *7 (“Because Plaintiffs are only identifying Biggler and Northern as foundation witnesses, the Court finds that the late disclosure of these witnesses is harmless to Defendant.”); In re Otero Cty. Hosp. Ass'n, Inc., No. 11-11-13686 JL, 2014 WL 184984, at *11 (Bankr. D.N.M. Jan. 15, 2014) (finding no material prejudice to party who objected to Rule 26 disclosures, which failed to name particular individuals, to the extent those individuals would be called solely to authenticate or provide foundation for exhibits).

         B. Exhibits 1-18: Failure to Produce

         Second, plaintiff contends the court should strike the 18 exhibits attached to Ms. Westfahl's affidavit because defendant did not produce them in a timely fashion. Plaintiff cites Fed.R.Civ.P. 37.[5] Plaintiff argues that defendant did not disclose the exhibits attached to Ms. Westfahl's affidavit as required by Rule 26(a).

         Rule 26(a) directs the parties to provide the following:

[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[.]

         Rule 26(a)(1)(A)(ii). The court understands plaintiff's motion under Rule 37(c) to make the following argument: defendant failed to identify or disclose the exhibits attached to Ms. Westfahl's affidavit in its Rule 26(a) disclosures. Defendant now has used these exhibits to support its Motion for Summary Judgment. And, because defendant didn't disclose these exhibits, the court-plaintiff says-should strike them.

         The court rejects plaintiff's request. In her motion, plaintiff includes a portion of defendant's initial disclosures. And, in its initial disclosures, defendant identified each of the challenged documents or provided a description by category and location of each document. Defendant complied with Rule 26(a), and the court thus denies plaintiff's Motion to Strike Exhibits 1-18 for this reason.

         C. Exhibits 11-14: Failure to Authenticate

         Third, plaintiff objects to defendants' Exhibits 11-14. These exhibits are written statements purportedly provided by four of plaintiff's former co-workers. The statements chronicle plaintiff and Mr. Swygert's dispute on December 21, 2016. Plaintiff references D. Kan. Rule 56.1, and, construing her filing liberally, the court understands plaintiff's motion to argue that defendant has failed to authenticate these statements. See Doc. 94-3 at 3 (referring to the exhibits as “[f]alse statements by coworkers[.] No. affidavit or sworn under oath.”). That is, plaintiff contends that the court must disregard the content of these statements because the co-workers have not filed complementary affidavits, nor do their statements comport with 28 U.S.C. § 1746 because they are not sworn “under penalty of perjury.” See D. Kan. Rule 56.1(d).

         Defendant dismisses plaintiff's objection, arguing it has complied with Rule 56 because it attached these exhibits to Ms. Westfahl's affidavit, and, as custodian of records for the District, she properly can authenticate records in the District's possession. While this may be so, Ms. Westfahl's affidavit-the only source defendant relies on for three of the witness statements- fails to establish that these documents are self-authenticating.

         Under Fed.R.Evid. 902, a document is self-authenticating as a “Certified Domestic Record” if a custodian or other qualified person certifies that the record meets the three requirements of Fed.R.Evid. 806. These requirements are that the record was (A) “made at or near the time by . . . someone with knowledge, ” (B) “kept in the course of a regularly conducted activity of a business, ” and (C) made as “a regular practice of that activity.” Fed.R.Evid. 902(11) (incorporating Fed.R.Evid. 803(6)(A)-(C)); see also Guang Dong Light Headgear Factory Co. v. ACI Int'l, Inc., No. 03-4165-JAR, 2008 WL 53665, at *4 (D. Kan. Jan. 2, 2008) (“Business records . . . ‘may be considered only if authenticated by a person through whom the exhibits could be admitted into evidence.'” (quoting IBP, Inc. v. Mercantile Bank of Topeka, 6 F.Supp.2d 1258, 1263 (D. Kan. 1998))). “At a minimum the certificate should track the language of Rule 902(11) . . ., and the certificate must satisfy all elements of the requisite foundation, not merely some of them.” Christopher B. Mueller & Laird C. Kirkpatrick, 5 Federal Evidence § 9:40 (4th ed. 2018).

         Ms. Westfahl's affidavit fails to meet the minimum authentication requirements under Rule 902 because-even at a minimum-it does not track the language of Rule 902(11). The affidavit does not establish that the four witness statements were made at or near the time of the altercation. And, as the District custodian, Ms. Westfahl could have explained that witness statements are kept in the District's regularly conducted activities and that the statements were made as a regular practice of that activity. But, Ms. Westfahl does not assert that these documents meet Rule 902's standards. Compare IBP, Inc., 6 F.Supp.2d at 1263 (“In neither his affidavit nor deposition testimony did [the employee] give any indication that the records were made contemporaneous with the controverted transaction or were kept in the ordinary course of business.”) (citation omitted), with Guang Dong, 2008 WL 53665, at *4 (finding custodian's affidavit sufficient where it attested that custodian had reviewed the documents and they were “kept by [the business] in the regular course of its business, some of which constitute electronic mail communications which are between [the business's] employees and representatives in the regular course of its business[]”). Thus, the handwritten witness statements are not self-authenticating under Rule 902(11).

         But the court's conclusion about authentication under Rule 902(11) does not mean that defendant's other authentication efforts also fail. Defendant has provided foundation for one of the four statements-that of Keyannah Johnson-by way of Lenora Miller's affidavit. Lenora Miller is defendant's Executive Director of Operations, and she investigated after plaintiff reported her altercation with Mr. Swygert. Under Fed.R.Evid. 901(b)(1), the proponent of an exhibit may authenticate an exhibit by testimony of a witness with knowledge. And, “a document can be authenticated [under Rule 901(b)(1)] by a witness who wrote it, signed it, used it, or saw others do so.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 774 n.8 (9th Cir. 2002) (31 Wright & Gold, Federal Practice & Procedure: Evidence § 7106, 43 (2000)) (alteration in original); see also In re Harris, 209 B.R. 990, 996 (B.A.P. 10th Cir. 1997). Ms. Miller's affidavit testifies that she, as part of her investigation, “obtained [a] statement from Keyannah Johnson, an employee who worked with Plaintiff in the Central Kitchen.” Doc. 87-4 at 4 (Miller Aff. ¶ 18). Ms. Miller has certified that the copy of the statement attached to Ms. Westfahl's affidavit is a “true and correct” version of the statement. Id. As the recipient and user of this document, Ms. Miller provided the minimal requirement of Fed. R. Evid 901(a), i.e., defendant has “produce[d] evidence sufficient to support a finding that the [statement] is what the [defendant] claims it is.” Fed.R.Evid. 901(a). The court thus will grant plaintiff's Motion to Strike in part and deny the rest. In sum, the court rules that it may not consider Exhibits 11-13 or the factual averments in paragraphs 13-15 of Ms. Westfahl's affidavit. But, the court will consider Exhibit 14, Ms. Johnson's statement. Having decided the parties' dueling Motions to Strike, the court now turns to defendant's Motion for Summary Judgment.

         III. Legal Standard

         Summary judgment is appropriate when the moving party demonstrates that “no genuine dispute” exists about “any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). When it applies this standard, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). “An issue of fact is ‘genuine' ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party' on the issue.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material' ‘if under the substantive law it is essential to the proper disposition of the claim' or defense.” Id. (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664');">144 F.3d 664, 670 (10th Cir. 1998)).

         The moving party bears “‘both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.'” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the moving party “‘need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim.'” Id. (quoting Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).

         If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those dispositive matters for which it carries the burden of proof.'” Id. (quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 248-49. “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 670 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).

         Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327. Instead, it is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.'” Id. (quoting Fed.R.Civ.P. 1).

         IV. Undisputed Facts

         The following facts are uncontroverted or, where controverted, are stated in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         A. Defendant's Policies

         Defendant is a unified school district and governmental subdivision of the State of Kansas, organized and existing under Article 6, § 5 of the Kansas Constitution and Kan. Stat. Ann. § 72-1131. Doc. 87 at 2 (¶ 1). Defendant is governed by a publicly elected Board of Education. Doc. 87 at 2 (¶ 2).

         Defendant maintains policies adopted by its governing Board of Education prohibiting discrimination or retaliation based on race, color, religion, sex, national origin, age, handicap, or disability in admission, access, or treatment in the District's programs and activities. Doc. 87 at 2 ...

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