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White v. Certainteed Corp.

United States District Court, D. Kansas

May 13, 2019

LARRY S. WHITE, Plaintiff,



         Plaintiff Larry S. White filed a five-count civil action against defendant CertainTeed Corporation, advancing claims of discrimination and retaliation under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981. Before the court are three motions filed by CertainTeed: (1) Motion to Strike Plaintiff's Untimely Amended Rule 26 Disclosures (Doc. 34); (2) Motion for Summary Judgment (Doc. 37); and (3) Motion to Strike Plaintiff's Opposition Exhibits 13, 16, 17, 22, and 23 (Doc. 44). The court grants in part and denies in part CertainTeed's Motion to Strike Plaintiff's Opposition Exhibits, excluding Exhibits 13, 16, 17, and 23 from consideration and partially excluding Exhibit 22 from consideration. The court also grants CertainTeed's Motion for Summary Judgment, concluding Mr. White has failed to sustain his burden under the McDonnell Douglas[1] framework, and its hybrids, on any of his claims. Finally, the court denies CertainTeed's Motion to Strike Plaintiff's Untimely Amended Rule 26 Disclosures because the summary judgment entered by this Order renders this motion moot.

         I. Uncontroverted Facts

         The following facts either are uncontroverted or, where controverted, they are stated in the light most favorable to Mr. White as the non-moving party.

         A. Mr. White's Employment at CertainTeed

         Mr. White, who is African-American, commenced employment at CertainTeed in July 1998. Doc. 33 at 2-3 (Pretrial Order at ¶¶ 2.a.4, 2.a.7). CertainTeed “manufactures interior and exterior building products” and “operates a fiberglass insulation manufacturing facility in Kansas City, Kansas.” Id. at 2 (Pretrial Order at ¶¶ 2.a.1-2.a.2). By 2001, Mr. White assumed the position of Utility Cullet. Doc. 43-11 at 6 (White Dep. 15:13-17). As a Utility Cullet, Mr. White's job duties included: (1) “[m]aintain[ing] a safe and clean work area, ” (2) “make[ing] proper adjustments to all process equipment, ” (3) cleaning and removing scrap fiber from machinery in his area, (4) cleaning the washwater area, including the screens in the washwater system, and (5) transporting cullet to other areas of the plant. Doc. 43-5 at 3-5, 7. CertainTeed employees worked in shifts. Doc. 38-3 at 3 (Perrier Decl. ¶ 10). Mr. White worked Shift A, a shift followed by Shift D. Id. Mr. White, like all CertainTeed employees, was subject to the Plant Conduct Rules, including Rule 9, which addressed “[p]oor job performance or errors in performing assigned tasks.” Doc. 38-8 at 2. Finally, Mr. White, like other production employees at CertainTeed's Kansas City plant, was a member of the Teamsters Local 41 Union (the “Union”). Doc. 33 at 3 (Pretrial Order at ¶ 2.a.9). And, under the Union's Collective Bargaining Agreement and CertainTeed's progressive disciplinary process, a Rule 9 violation justified termination only when it was the employee's third written notice of a Rule 9 violation within a nine- or twelve-month period. Doc. 43-6 at 5, 8 (Billings Dep. 13:8-12, 27:22-28:4).

         In 2013 or 2014, Mr. White's doctor diagnosed him with a restrictive airway condition.[2]Id. at 61-62 (Billings Dep. 236:23-237:5). At that time, and for some time preceding his diagnosis, Mr. White often took it upon himself to wear a half-face respirator mask when working. Id. at 62-63 (Billings Dep. 240:12-242:8). In 2015, CertainTeed moved Mr. White from the K-11 line to the K-21 line. Doc. 43-11 at 6 (White Dep. 16:7-13). Also during 2015, CertainTeed stopped offering employees unfettered access to half- and full-face respirator masks. Doc. 38-10 at 10 (Shelly Dep. 41:16-22).

         In February 2015, Mr. White underwent an x-ray of his chest, which revealed nodules in his lung. Doc. 43-11 at 62 (White Dep. 239:12-14). Mr. White's doctor recommended he wear a full-face respirator mask. Doc. 38-10 at 11 (Shelly Dep. 47:4-11). Clay Shelly and Thomas Weigert-the Environmental, Health, Safety, and Security Manager and the Plant Manager respectively-learned about Mr. White's breathing condition and that he was donning a respirator mask. Id. at 5, 11 (Shelly Dep. 13:6-9, 47:7-21); Doc. 33 at 3 (Pretrial Order at ¶ 2.a.6); Doc. 38-7 at 12, 76 (White Dep. 162:8-18, 296:7-10). Mr. Shelly questioned Mr. White's need for a mask, expressing concern that the mask might further restrict Mr. White's airways and might impair Mr. White's line of sight and ability to perform some of his job duties safely. Doc. 38-10 at 11-12 (Shelly Dep. 48:13-49:8); see Id. at 44 (e-mail from Mr. Shelly indicating it might not be safe for Mr. White to operate a fork lift while wearing a mask). Mr. Shelly advised Mr. White he could not wear a half- or full-face respirator mask until: (1) he provided a doctor's note, (2) CertainTeed conducted a hazard assessment, (3) he underwent a fit test, and (4) he received training on how to wear the mask. Id. at 12 (Shelly Dep. 49:23-50:4); see also Id. at 41 (Mr. Shelly's notes from meeting with Mr. White). Mr. Shelly also scheduled Mr. White for an appointment with the plant physician. Id. at 12 (Shelly Dep. 49:18-20).

         A few days later, and before Mr. White provided Mr. Shelly with a note from his doctor, Mr. Shelly saw Mr. White wearing a full-face respirator mask. Id. at 14 (Shelly Dep. 62:7-63:1). Mr. Shelly sent Mr. White home for the day. Id. Five days later, Mr. White dropped off a doctor's note. Id. (Shelly Dep. 63:18-64:3). It read: “I have asked him to wear protective equipment and have recommended a full-face mask with filters as a precaution.” Id. (Shelly Dep. 63:18-64:3). Mr. Shelly deemed the note too vague to advance Mr. White's request to wear a respirator mask because the note did not elaborate on Mr. White's breathing condition, the type of pollutants causing the breathing condition (fumes, dust, water vapor, etc.), or identify what type of mask and filter the doctor recommended. Id. at 14, 17 (Shelly Dep. 64:15-18, 74:16-75:6). Mr. Shelly contacted John Monroe, the Shift A supervisor, and advised him that Mr. White could not wear a half- or full-face mask until he had provided an adequate note from a doctor. Id. at 15 (Shelly Dep. 67:13-18); see also Id. at 44 (e-mail from Mr. Shelly to Mr. Monroe). Mr. Monroe sent Mr. White home. Doc. 38-6 at 6 (Monroe Dep. 24:15-17).

         Nothing in the record suggests Mr. White produced a doctor's note that satisfied Mr. Shelly; but Mr. White did return to work. Later in February, Mr. Shelly saw Mr. White with a half-face respirator mask hanging around his neck and required him to put it away. Doc. 38-10 at 18 (Shelly Dep. 80:11-25). After that conversation, Mr. Shelly never saw Mr. White wearing a half- or full-face respirator mask. Id. at 19 (Shelly Dep. 83:1-9). And, according to Mr. White, he stopped wearing a half- or full-face respirator mask around May 2015 and did not ask Mr. Shelly again about wearing a mask. Doc. 43-11 at 68 (White Dep. 261:5-262:7); Doc. 38-7 at 31 (White Dep. 323:11-324:12).[3]

         In fall 2015, Julien Perrier, the Plant Superintendent, began receiving complaints from Shift D employees about Mr. White's job performance and the state of the washwater area following Shift A. Mr. Perrier determined that, on November 1, 2015, the K-21 washwater system, which Mr. White staffed during the overnight shift, was not ready for operation to start the production line on time. Doc. 38-2 at 8 (Perrier Dep. 69:5-22). Mr. Perrier instructed Mr. Monroe to issue a write-up notice to Mr. White for poor job performance, in violation of Rule 9. Id. (Perrier Dep. 69:5-22). Mr. Monroe issued the write-up. Doc. 38-14. Mr. Monroe, however, expressed reservation to Mr. White about issuing a write-up based on hearsay. Doc. 43-22 at 6 (Transcript of Audio Recording at 17:14-25).[4] He also told Mr. White that he believed the plows, not the washwater system, prevented the line from starting production on time. Id. at 4 (Transcript of Audio Recording at 11-17). And, when receiving the write-up, Mr. White asked Mr. Monroe who the plant human resources person was because he wanted to file a claim of harassment. Id. at 8 (Transcript of Audio Recording at 25:8-24). But, Mr. White did not provide specifics to Mr. Monroe about the basis for his claim of harassment, i.e., race, disability, or national origin. See Id. (See Transcript of Audio Recording at 25:18-26:7).

         Instead, Mr. White merely mentioned some ways in which he believed he was treated differently than other utility cullets. See id. (See Transcript of Audio Recording at 25:18-25:24).

         On November 26, 2015, Mr. Perrier and Paul Hughes, the Shift D supervisor, received an e-mail from a second-level supervisor on Shift D entitled, “K21 WW - Larry White Aftermath!.” Doc. 38-5 at 9. The e-mail included pictures of the unkempt state of the washwater area at the start of Shift D. Id. A little more than two weeks later, on December 13, 2015, Mr. Hughes received another report about the state of the washwater area following Mr. White's shift and, after inspecting the area himself, prepared a Rule 9 write-up for Mr. White. Doc. 38-5 at 4-5 (Hughes Decl. ¶¶ 19-20, 24). And, on December 16, 2015, Mr. Perrier received another complaint from Shift D workers about the state of the washwater area following Mr. White's shift. Doc. 38-3 at 5 (Perrier Decl. ¶ 21). In response to this complaint, Mr. Perrier drafted a Rule 9 write-up for Mr. White and spoke with Mr. Hughes about Mr. White's performance. Id. at 5-6 (Perrier Decl. ¶¶ 23-26). Mr. Hughes informed Mr. Perrier that he had prepared a write-up for the December 13, 2015, issue. Id. at 6 (Perrier Decl. ¶ 26). On December 17, 2015, Mr. White received the write-ups prepared by Mr. Perrier and Mr. Hughes, resulting in Mr. White's termination for three Rule 9 write-ups. Id. at 7 (Perrier Decl. ¶¶ 28-30); Doc. 43-2 at 2. Mr. White packed up his locker and left the plant. Doc. 43-11 at 20 (White Dep. 69:1-5, 72:11-21). While packing up his locker, Mr. White placed several “check sheets, ” which contained information about plant production, in his backpack.[5] Id. at 21 (White Dep. 73:4-12); see Doc. 39-1 (check sheets containing information about the production line).

         The Union filed a grievance over Mr. White's termination. Doc. 43-42 at 2. Doug Billings, who assumed the position as CertainTeed's Kansas City plant's Human Resources Manager in December 2015, investigated Mr. White's termination. Doc. 38-9 at 2-3 (Billings Decl. ¶¶ 3, 9). Mr. Billings determined CertainTeed failed to follow the progressive discipline policy when terminating Mr. White because Mr. White received the second and third Rule 9 write-ups at the same time. Id. at 4 (Billings Decl. ¶¶ 12-13). Mr. Billings recommended CertainTeed reinstate Mr. White, and Mr. Perrier and Mr. Weigert accepted this recommendation. Id. (Billings Decl. ¶¶ 13, 16).

         On January 13, 2016, Mr. White met with Mr. Billings, Mr. Perrier, and Mr. Weigert. Id. (Billings Decl. ¶ 18). Mr. Billings advised Mr. White that CertainTeed was prepared to reinstate him. Id. at 4 (Billings Decl. ¶ 19). Mr. Perrier and Mr. Weigert then began to discuss Mr. White's performance issues. Doc. 43-11 at 34 (White Dep. 126:3-6, 126:10-14). Mr. Perrier produced a graph of the washwater system settings and accused Mr. White of misadjusting the settings to reduce the amount of fiber scraps the system collected and, in turn, the amount of fiber scraps he needed to clean. Id. (White Dep. 126:3-6, 126:10-14). Mr. White pulled out several check sheets he had removed from his locker when terminated and contended he was not on duty when the washwater system settings were adjusted. Id. (White Dep. 126:18- 127:15). Mr. Billings and Mr. Perrier accused Mr. White of stealing company property by removing the check sheets. Id. (White Dep. 127:16-129:3). Mr. Billings rescinded the reinstatement offer because removing “confidential and proprietary company records from the plant premises” was against “long-standing plant protocol.” Doc. 38-9 at 5 (Billings Decl. ¶¶ 23, 28). CertainTeed formally terminated Mr. White on January 14, 2016, listing the reason for termination as “For Cause - Theft of Company Documents.” Doc. 43-23 at 2.

         The Union arbitrated Mr. White's termination. Doc. 43-31 at 2. On May 31, 2016, with the Union's petition for arbitration still pending, Mr. White filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Kansas Human Rights Commission. Doc. 38-27 at 2. Mr. White's EEOC charge identifies race, disability, retaliation, and national origin as the forms of discrimination he experienced. Id. On July 19, 2016, the EEOC notified CertainTeed that Mr. White filed a charge of discrimination. Doc. 43-44.

         On August 25, 2016, an arbitrator conducted a hearing on the Union's grievance of Mr. White's January 2016 termination. Doc. 33 at 4 (Pretrial Order at ¶ 2.a.16). On October 26, 2016, the arbitrator issued a decision in Mr. White's favor. Id. (Pretrial Order at ¶ 2.a.17); Doc. 43-46 at 2. The arbitrator's decision provided CertainTeed 15 days from receiving the decision to reinstate Mr. White and pay him back wages. Doc. 43-3 at 15. On November 14, 2016, CertainTeed contacted the Union about calculating Mr. White's back wages. Doc. 38-24. On November 17, 2016, CertainTeed reinstated Mr. White as a Utility Cullet on the K-21 line. Doc. 43-36 at 2. Discussion between CertainTeed and the Union about the amount of back wages owed to Mr. White, however, continued through mid-December. See Doc. 38-25 (Dec. 13, 2016, e-mail from CertainTeed to the Union about updated calculation of back wages). On December 21, 2016, more than 15 days after receiving the arbitrator's decision, CertainTeed paid Mr. White $49, 312.33 in back wages. Doc. 33 at 4 (Pretrial Order at ¶ 2.a.19). Mr. White remained employed by CertainTeed when he commenced this action. Doc. 38-5 at 3 (Hughes Decl. ¶ 8).

         B. Mr. White's Allegations of Discrimination & Hostile Work Environment

         Mr. White's Complaint asserts claims for discrimination based on race, national origin, and disability. The court derives the following from the exhibits submitted with the parties' summary judgment filings.

         On his race discrimination claim, Mr. White admitted he was not subject to and did not personally hear any derogatory remarks or racial slurs. Doc. 38-7 at 11, 35 (White Dep. 160:17- 161:9, 461:19-462:4). Mr. White, however, testified that he considered it racially discriminatory when plant managers (1) spoke to him in a “very blunt” manner; (2) wanted him to “be quiet and just do [his] job [without] talking back”; and (3) told him what to do without permitting him to have input on operational decisions. Id. at 13 (White Dep. 167:1-168:1). Also, Mr. White testified that he perceived discrimination in the plant based on how employees congregated around the timeclock, with only white employees congregating there. Id. at 20 (White Dep. 225:8-17). Mr. White also testified that African-American employees were written up more frequently when their supervisors were away from the plant. Id. at 21 (White Dep. 231:11- 232:21). But Mr. White acknowledged he did not know whether Caucasian employees were also written up more frequently when their supervisors were away. Id. (White Dep. 232:22-24). Finally, Mr. White testified about several incidents at CertainTeed that he believed contributed to a racially hostile work environment. See, e.g., Doc. 43-11 at 30-31 (White Dep. 112:4-113:8). Mr. White conceded, however, that he learned about all these incidents secondhand. See, e.g., id. And, of the incidents he discussed, only one incident appears in other evidence properly before the court-that being an incident where Mr. Perrier allegedly poked an African-American employee while calling the employee “boy.” See Doc. 43-19 at 9, 11 (Perrier Dep. 29:21-32:6, 38:19-23).

         Turning to national origin, Mr. White testified that he heard from another employee that a manager called a different employee a “dumb” and “lazy” American. Doc. 38-7 at 18-19 (White Dep. 188:14-189:13).[6] Mr. White also believed that Mr. Perrier and Mr. Weigert held a negative opinion of Americans because, when he approached them, they often began to speak in a foreign language, which Mr. White interpreted as their way of secretly saying negative things about Americans. Doc. 43-11 at 49 (White Dep. 185:1-188:8). Mr. White acknowledged, however, that he does not speak any foreign languages, was never the subject of any negative comments about Americans, and did not personally hear any such comments. Id. at 44 (White Dep. 165:13-16).

         Finally, on his disability discrimination claim, Mr. White believes CertainTeed managers harassed him when (1) they asked him repeatedly why he was wearing a respirator mask and (2) Mr. Shelly, Mr. Weigert, and Mr. Perrier would not permit him to wear a mask until he produced a more specific doctor's note and received training about how to wear the mask. Id. at 72 (White Dep. 277:12-278:10). In this vein, Mr. White testified that Mr. Shelly “stayed on [him]” about wearing a mask. Id. at 64-65 (White Dep. 248:24-249:3). But, Mr. White did not provide any details about his interactions with Mr. Shelly about the mask outside of mid-February 2015. And, as with his race and national origin discrimination claims, Mr. White admitted he neither was the target of nor heard any insulting or derogatory remarks based on disability. Id. at 43 (White Dep. 164:10-23).

         In 2015, Mr. White discussed his perception of these episodes of discrimination with fellow hourly employees. Id. at 38 (White Dep. 143:2-8). But, Mr. White admitted that he did not complain to “any manager or HR employee.” Id. (White Dep. 143:9-14). This is so because Mr. White was “nervous” about what management might do if he complained to a manager or HR employee and because he felt no one at CertainTeed would act on his complaint. Id. at 39, 41 (White Dep. 148:11-23, 154:18-25).

         C. Mr. White's Claims and the Procedural History of the Litigation

         Mr. White filed a five-count Complaint. Doc. 1. Count I of the Complaint raises claims under the ADA alleging discrimination, failure to accommodate, and harassment/hostile work environment. Id. at 10-11 (Compl. at ¶¶ 81-88). Count II asserts a claim for retaliation under the ADA. Id. at 11-12 (Compl. at ¶¶ 89-95). Count III claims race discrimination and harassment/hostile work environment under Title VII and 42 U.S.C. § 1981. Id. at 12-14 (Compl at ¶¶ 96-102). Count IV presents a claim for national origin discrimination under Title VII. Id. at 14-15 (Compl. at ¶¶ 103-08). Finally, in Count V, Mr. White makes claims for retaliation under Title VII and 42 U.S.C. § 1981, alleging CertainTeed retaliated against him after he had opposed race and national origin discrimination. Id. at 15-16 (Compl. at 109-16).

         The court ordered the parties to submit Federal Rule of Civil Procedure 26(a) initial disclosures by October 5, 2017. Doc. 2 at 2 (Initial Order Regarding Planning and Scheduling). Both parties timely filed their initial disclosures. See Docs. 8, 9 (certificates of service for Rule 26(a) disclosures). Mr. White's initial disclosure identified five potential witnesses by name- Mr. White, Summor White, Mr. Perrier, Mr. Weigert, and Mr. Billings. It also noted an intent to designate additional witnesses, specifically “individuals necessary for rebuttal” and “individuals identified by defendants.” Doc. 35-1 at 2-3.

         In an October 2017 Scheduling Order, the court set a September 14, 2018, deadline for the parties to complete all discovery and an October 15, 2018, deadline for summary judgment motions. Doc. 10 at 13 (Scheduling Order). The court also required the parties to serve any supplemental Rule 26 disclosures at least 40 days before the September 14, 2018, discovery deadline. Id. at 3 (Scheduling Order at ¶ 2.a). The Scheduling Order advised: “Should anything be included in the final disclosures under Fed.R.Civ.P. 26(a)(3) that has not previously appeared in the initial Rule 26(a)(1) disclosures or a timely Rule 26(e) supplement thereto, the witness or exhibit probably will be excluded from offering any testimony under Fed.R.Civ.P. 37(c)(1).” Id. (Scheduling Order a ¶ 2.a).

         On September 11, 2018, after the deadline imposed by the court and just three days before the discovery cutoff, Mr. White served CertainTeed with a supplemental disclosure. Doc. 35-2 at 8. The supplemental disclosure named Gregg Stallings, Loretta Blackwell, Henry Jones, Todd Cannon, Jr., James Wooten, Jeff Patterson, Roger Maxwell, Sr., and Roger Maxwell, II, as potential witnesses. Id. at 4-6. On September 14, 2018, one day before the discovery deadline, Mr. White served CertainTeed with Mr. Stallings's affidavit. See Doc. 30. And, after the deadline for discovery, Mr. White served CertainTeed with the affidavits signed by Mr. Jones and Mr. Patterson. See Docs. 31, 32.

         The court conducted a pretrial conference on October 1, 2018, during which CertainTeed advised the court that it intended to file motions to strike evidence from witnesses disclosed for the first time in Mr. White's supplemental disclosure, including the affidavits of Mr. Stallings, Mr. Jones, and Mr. Patterson. Doc. 33 at 22-23 (Pretrial Order at ¶¶ 8.b.ii-iii). The court gave CertainTeed until October 5, 2018, to file its motion to strike. Id. at 23 (Pretrial Order at ¶ 8.b.iii). CertainTeed complied with that deadline, moving to strike the supplemental disclosures. Doc. 34 (Motion to Strike Plaintiff's Untimely Amended Rule 26 Disclosures). It also filed a timely motion for summary judgment against all of Mr. White's claims. Doc. 37 (Motion for Summary Judgment). Responding to the Motion for Summary Judgment, Mr. White submitted affidavits from Mr. Stallings, Mr. Jones, and Mr. Patterson. Doc. 43-13, Doc. 43-16, Doc. 43-17. Mr. White also submitted transcripts of two audio recordings of meetings between Mr. White and Mr. Monroe. Doc. 43-22, Doc. 43-23. CertainTeed moved to strike Documents 43-13, 43-16, 43-17, 43-22, and 43-23. Doc. 44. The parties have completed briefing on all three pending motions. The court addresses CertainTeed's Motion to Strike Plaintiff's Opposition Exhibits 13, 16, 17, 22, and 23 before turning to CertainTeed's Motion for Summary Judgment.

         II. Analysis

         A. Motion to Strike Plaintiff's Opposition Exhibits 13, 16, 17, 22, and 23 1. Exhibits 13, 16, and 17

         CertainTeed asks the court to strike the affidavits by Mr. Stallings, Mr. Jones, and Mr. Patterson because (1) Mr. White failed to identify these individuals in his timely Rule 26 disclosures and (2) the affidavits do not comply with Federal Rule of Civil Procedure 56(c). Doc. 45 at 2-9. Finding CertainTeed's first argument persuasive, the court declines to consider these three affidavits as part of its summary judgment analysis.

         Rule 26(a) requires a party to provide initial disclosures identifying “the name . . . 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.” Fed.R.Civ.P. 26(a)(1)(A)(i). After making an initial Rule 26 disclosure, a party has a continuing duty to supplement its disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete.” Fed.R.Civ.P. 26(e)(1)(A). Mr. White's Rule 26(a) initial disclosure did not identify Mr. Stallings, Mr. Jones, or Mr. Patterson as “individuals likely to have discoverable information.” And, while Mr. White identified these individuals in his supplemental disclosure, he did not serve his supplemental disclosure on CertainTeed until more than a month had passed after the court-imposed deadline for supplemental disclosures.

         Mr. White thus did not timely identify Mr. Stallings, Mr. Jones, and Mr. Patterson as witnesses as required by Rule 26 and the court's Scheduling Order.

         “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or harmless.” Fed.R.Civ.P. 37(c). When deciding whether a failure to disclose is justified or harmless, a court should consider: “(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.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002) (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 the required disclosure has the burden to demonstrate substantial justification or the lack of harm.” Estate of McDermed v. Ford Motor Co., No. 14-cv-2430-CM-TJJ, 2016 WL 1298096, at *3 (D. Kan. Apr. 1, 2016).

         Mr. White's failure to disclose is not justified. The record establishes that Mr. White, in the course of his ongoing employment at CertainTeed, knew the identities of his fellow employees-Mr. Stallings, Mr. Jones, and Mr. Patterson-well before the August 2018 deadline for supplemental disclosures. And, Mr. White, as evidenced by his June 2018 deposition testimony, knew that these individuals might have information beneficial to his case. See Doc. 43-11 at 31 (White Dep. 115:22-116:15) (Mr. White providing secondhand details about incident involving Mr. Stallings); id. at 41 (White Dep. 155:6-156:3) (Mr. White providing secondhand details about incident involving Mr. Jones). But, Mr. White waited until mid-August 2018 to contact the witnesses. Doc. 47 at 2 (Plaintiff's Response in Opposition to Defendant's Motion to Strike Plaintiff's Opposition Exhibits Nos. 13, 16-17 and 22-23 at ¶ 4).

         Nothing prevented Mr. White from identifying Mr. Stallings, Mr. Jones, and Mr. Patterson in a timely Rule 26(e) supplemental disclosure.[7]

         Instead of timely disclosing these witnesses, Mr. White waited to provide CertainTeed these names until a few days before the close of discovery, at a time when it was impossible for CertainTeed to schedule depositions before the discovery deadline. And allowing Mr. White to rely on affidavits from witnesses CertainTeed could not depose before the deadlines for discovery and dispositive motions would prejudice CertainTeed. Also, while Mr. White contends CertainTeed should not be surprised by the late disclosure of Mr. Stallings, Mr. Jones, and Mr. Patterson because Mr. White mentioned them in his deposition testimony, it is not CertainTeed's responsibility to select and marshal the evidence which Mr. White will rely to meet his evidentiary burdens. Finally, Mr. White suggests calling a do-over on the discovery deadline to allow CertainTeed an opportunity to depose the additional witnesses and then supplement its pending motion for summary judgment. Doing so, however, would delay the trial and impose unwarranted litigation expenses on CertainTeed. While some circumstances might warrant this approach, this one doesn't because Mr. White hasn't substantially justified his untimely conduct.

         Considering all these matters together, it is evident that Mr. White did not timely identify Mr. Stallings, Mr. Jones, and Mr. Patterson as witnesses or timely provide CertainTeed with Mr. Jones and Mr. Patterson's affidavits. Mr. White also fails to carry his burden and demonstrate that his late disclosure was justified or harmless. Relying on the sanction provided by Rule 37(c)(1) and the warning in the Scheduling Order, the court declines to consider Documents 43-13, 43-16, and 43-17 when adjudicating CertainTeed's Motion for Summary Judgment.

         2. Exhibits 22 and 23

          Mr. White secretly recorded two meetings he had with Mr. Monroe. Documents 43-22 and 43-23 are transcripts of those audio recordings. CertainTeed moves to strike Documents 43-22 and 43-23 on the ground that the transcripts are not accompanied by an authenticating affidavit and that they contain inadmissible hearsay. Doc. 45 at 10. Mr. White contends he can authenticate the recordings at trial and that, under Federal Rule of Evidence 801(d), Mr. Monroe's statements are not hearsay. Doc. 47 at 14-15.

         “To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.” Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016) (quoting Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). While this does not require that the evidence submitted at summary judgment be “in a form that would be admissible at trial, ” it does require that “the content or substance of the evidence [submitted at summary judgment] must be admissible.” Id. (quoting Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006)). And, where the evidence offered at summary judgment is ...

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