United States District Court, D. Kansas
MARCIA L. JACKSON, Plaintiff,
KANSAS CITY KANSAS PUBLIC SCHOOLS UNIFIED SCHOOL DISTRICT NO. 500, Defendant.
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
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 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.
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.
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).
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).
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.
Defendant's Motion to Strike Plaintiff's Objection to
Pretrial Order (Doc. 89)
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
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.”).
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.
Plaintiff's Motion to Strike Defendant's Affidavit
and Exhibits (Doc. 94)
the court addresses plaintiff's Motion to Strike
Defendant's Affidavit and Exhibits (Doc.
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.
Susan Westfahl's Affidavit
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.
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.
26(a) requires the parties to disclose, in part, the
[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[.]
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).
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.
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.
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
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.
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
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 1-18: Failure to Produce
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. Plaintiff argues that defendant did not
disclose the exhibits attached to Ms. Westfahl's
affidavit as required by Rule 26(a).
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[.]
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
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
Exhibits 11-14: Failure to Authenticate
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.
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.
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.
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).
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.
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)).
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)).
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)).
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).
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).
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).
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 ...