United States District Court, D. Kansas
LARRY S. WHITE, Plaintiff,
CERTAINTEED CORPORATION, Defendant. v.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
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 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.
following facts either are uncontroverted or, where
controverted, they are stated in the light most favorable to
Mr. White as the non-moving party.
Mr. White's Employment at CertainTeed
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).
or 2014, Mr. White's doctor diagnosed him with a
restrictive airway condition.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).
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).
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).
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
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). 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).
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
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. Id. at 21 (White Dep. 73:4-12);
see Doc. 39-1 (check sheets containing information
about the production line).
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).
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.
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.
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.
Mr. White's Allegations of Discrimination & Hostile
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.
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).
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). 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).
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).
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).
Mr. White's Claims and the Procedural History of the
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).
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.
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).
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,
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.
Motion to Strike Plaintiff's Opposition Exhibits 13, 16,
17, 22, and 23 1. Exhibits 13, 16, and 17
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.
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
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.
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).
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).
prevented Mr. White from identifying Mr. Stallings, Mr.
Jones, and Mr. Patterson in a timely Rule 26(e) supplemental
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.
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
Exhibits 22 and 23
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.
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 ...