Deere v. XPO Logistics Freight, Inc.

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         This is a case of alleged age and sex employment discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) surrounding a reduction-in-force (“RIF”) and subsequent failure to rehire. Before the Court is Defendants' (collectively, and referred to singularly as “XPO”) Motion for Summary Judgment on all claims. (SJ Motion, ECF No. 46.) Plaintiff William Deere opposed the Motion (SJ Opposition, ECF No. 53^[1]); Defendants replied. (SJ Reply, ECF No. 64.) Also before the Court is Deere's Motion to Strike and for Sanctions related to evidentiary affidavits of, or references to, certain persons and entities supplied by XPO in the SJ Motion (Strike Motion, ECF No. 65) to which Defendants responded (Strike Response, ECF No. 67.) Because resolution of the SJ Motion may depend on the outcome of the Strike Motion, the Court considers them together.

         I. MOTION TO STRIKE

         A. Background

         On May 21, 2018, XPO filed the SJ Motion. In addition to the statement of undisputed material facts supplied by the parties (Statement, ECF No. 64-1), ^[2] XPO filed a series of supporting documents by Hiring Manager Steve Bernier (Bernier Dep., ECF No. 46-2), Chief Customer Officer Greg Ritter (Ritter Affidavit, ECF No. 46-3), Human Resources Manager Cindy Anderson (Anderson Affidavit, ECF No. 46-5), Director of Talent Management and Recruiting Terry Riordan (Riordan Affidavit, ECF No. 46-6), and Deere.^[3]

         The Ritter Affidavit attests that Ritter is responsible for XPO's business development in North America; XPO expected redundancies incident to a merger and “engaged an outside consultant to evaluate the profitability of individual Account Executives for a planned reduction-in-force [‘RIF']”; XPO did not provide the consultant with demographic information; and three Denver Region account executives, including Deere, were selected for the RIF based on their region-lowest year-over-year profit growth metric. (See generally Ritter Affidavit.) The Anderson Affidavit generally sets out that eleven of the fifteen Denver Region account executives were over 40-years-old; the other two RIF'ed persons in the Denver Region-Debbie James and William Diaz-were both younger than Deere; and subsequent hires Melody McGinnis and David Gerdes, when hired, were both older than Deere. (See generally Anderson Affidavit.) Finally, the Riordan Affidavit states that XPO posted an open Denver Region account executive position on November 25, 2015; XPO application screeners typically stop moving applicants forward once there are fifteen applications pending the hiring manager's review (but that sixteen applications, each submitted between November 30 and December 15, 2015, moved forward for the position in question); Deere did not apply until December 17, 2015; and Deere did not submit an application for another position-separate from the one posted on November 25, 2015-which was ultimately offered to David Gerdes. (See generally Riordan Affidavit.)

         After requesting two extensions of time, Deere filed an initial opposition brief on July 6, 2018 (ECF No. 51), which the Court struck because its Statement was nonresponsive and “riddled with argument.” (ECF No. 52.) He then filed the SJ Opposition. In large part, rather than dispute the content of the three affidavits, the SJ Opposition suggests that the facts contained therein are in “dispute” merely because Anderson and Riordan “were never disclosed in the litigation.” (SJ Opposition at 3 (citing Statement ¶¶ 10, 12, 16-18, 29-30).) Now, in the Strike Motion, Deere asks the Court to eliminate those affidavits in their entirety pursuant to Fed.R.Civ.P. 37(c)(1): “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.” On this authority, in all but two instances, Deere bases his “disputes” of facts supplied in the affidavits solely on the identity of the affiant-Anderson or Riordan-rather than take exception to the evidentiary content contained therein. (Statement ¶¶ 10, 12, 16, 18, 30.)^[4]

         In the SJ Reply, XPO does not dispute that Anderson nor Riordan were previously undisclosed. Instead, it counters that Rule 37(c)(1)'s sanction is not triggered if the “failure was substantially justified or harmless.” XPO says including the Anderson and Riordan Affidavits was harmless because Donna Lenahan-who was properly disclosed^[5] but unavailable at the time the SJ Motion was filed-“is now available and has signed a declaration [ ] which certifies the identical facts originally contained in” the other two. (SJ Reply at 1-2 (emphasis in original).) That representation is accurate. (Compare Anderson Affidavit, Riordan Affidavit with Lenahan Declaration, ECF No. 64-2.)

         Finally, the SJ Reply included a Second Ritter Declaration. (ECF No. 64-5.) Not inconsistent with the first, the Second Ritter Declaration provides additional clarification concerning the role of the outside consultant-including its name (McKinsey & Company); that the outside consultant “recommended” using the year-over-year profit growth metric for the RIF; and, based on that recommendation, Ritter made the “ultimate decision” to terminate Deere. (Compare generally Ritter Affidavit with Second Ritter Declaration.)

         B. Analysis

         Deere now asks the Court to strike the Anderson Affidavit in its entirety, Riordan Affidavit in its entirety, Paragraphs 7-9 of the Lenahan Declaration, Paragraphs 2-8 of the Ritter Affidavit, and Paragraphs 3-10 of the Second Ritter Declaration. (Strike Motion at 14.) With these portions of the record gone, Deere believes the Statement should be relieved of Paragraphs 4-8, 11, 16-18, and 29. (Id.)

         i. The Court does not strike the Anderson Affidavit.

         The sole proffered reason for striking the Anderson Affidavit is that Anderson was “previously undisclosed.” (See Id. at 1 (citing Rules 26 and 37).) But as XPO points out in the SJ Reply, excluding evidence under Rule 37 is a “drastic sanction” which should not be levied if the late-disclosing party's “failure was substantially justified or harmless.” Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997); Fed.R.Civ.P. 37(c)(1). “A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose.” Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (citing United States v. $9, 041, 598.68, 163 F.3d 238, 252 (5th Cir. 1998)). “Nevertheless, the following factors should guide its discretion: (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.” (Id.)

         Here, the circumstances-applied to these four factors-weigh heavily against striking the Anderson Affidavit. Most importantly, Deere does not move to strike Paragraphs 2-6 of the Lanaham Declaration, which contains the identical factual content earlier provided by Anderson.

         Deere cannot be prejudiced or disrupted by what he does not dispute, and he is apparently satisfied that XPO has cured his objection by providing the same information from another corporate source. Finally, upon review of the communications Deere supplied with the SJ Opposition, the Court finds that XPO has not acted in bad faith.^[6]

         ii. The Court does not strike the Riordan Affidavit or Lenahan Declaration Paragraphs 7-9.

         The Court's Rule 37(c)(1) analysis regarding the Riordan Affidavit is the same as with Anderson, and it will not be stricken on that basis. However, Deere additionally moves to strike the Riordan Affidavit (and Lenahan Declaration Paragraphs 7-9, which supply the same information)^[7] by arguing that neither Riordan nor Lenahan have knowledge concerning the facts to which they attest. (Strike Motion at 10.) Deere provides no basis for this accusation, and the Court cannot supply one.

         The content at issue sets forth that XPO application screeners typically stop moving applicants forward once there are fifteen applications pending the hiring manager's review (but that sixteen applications, each submitted between November 30 and December 15, 2015, moved forward for the position in question); Deere did not apply until December 17, 2015; and Deere did not submit an application for the position which was ultimately offered to David Gerdes. (See Riordan Affidavit ¶¶ 3-5; Lenahan Declaration ¶¶ 7-9.) Without any legitimate basis to believe otherwise provided by Deere, the Court does not question that Regional Director of Human Resources Donna Lenahan and Director of Talent Management and Recruiting Terry Riordan are both qualified based on personal knowledge to attest to XPO's application processes, including those facts specifically laid out in their affidavits.^[8] See, e.g., Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (suggesting that a human resources official would be in a position to acquire comprehensive knowledge concerning a company's employees).

         Lastly, Deere argues that “it is patent [Lenahan's statements] are all hearsay.” (Strike Motion at 10 (internal emphasis omitted).) The Court disagrees. Parties may submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form. Argo, 452 F.3d at 1199. Nonetheless, “the content or substance of the evidence must be admissible.” Thomas v. Int'l Bus. Machs., 48 F.3d 478, 485 (10th Cir.1995). For example, at summary judgment, courts should only disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form. Argo, 452 F.3d at 1199 (emphasis in original). While the Lenahan Declaration was made out of court, none of the content contained therein would be inadmissible should she later testify. Indeed, Paragraphs 7-9 swear only to behavior by both Deere and XPO, not statements. The Court will not exclude the Lenahan Declaration from its SJ Motion consideration.

         iii. The Court does not strike either the Ritter Affidavit or Second Ritter Declaration.

         Finally, upon review of the Second Ritter Declaration, Deere is incensed by what he calls XPO's “hiding, ” “sandbagging, ” “stonewalling, ” “flip-flopping, ” “concealment, ” and “lying in the weeds.” (Strike Motion at 2-4.) The Court is not convinced this hyperbolic name-calling is deserved, especially where, as here, it appears that Deere needs only look inward to find the source of his frustration.

         This Ritter dispute appears to center upon divining which person (or entity) is responsible for making the ultimate decision to terminate Deere based on his year-over-year profit growth deficiencies. XPO has stated its position on this issue in slightly different ways throughout the course of the litigation:

December 29, 2017 (Resp. to Interrog., ECF No. 65-1, at 10) [XPO] state[s] that because Mr. Deere had the most negative growth of any other Account Executive in the Denver region, Greg Ritter, Chief Customer Officer, Global Sales-along with an outside consultant-determined that Plaintiff would be selected for the reduction in force.

May 14, 2018 (Ritter Affidavit) In connection with the merger . . . XPO [ ] expected redundancies in the sales function and engaged an outside consultant to evaluate the profitability of individual Account Executives for a planned reduction-in-force (“RIF”).

September 4, 2018 (Final Pretrial Order, ECF No. 58) Greg Ritter . . . will testify in person regarding the reduction-in-force, the role of the outside consultant, his adoption of the consultant's recommendations, the use of year-over-year profit growth as the metric for determining which Account Executives to include in the reduction-in-force[.]

January 23, 2019 (Second Ritter Declaration) I worked with an outside consultant, McKinsey & Company (a global management consulting firm) regarding the reduction-in-force. McKinsey recommended using year-over-year profit growth to determine who would be selected for the reduction-in-force. I agreed, and made the decision to use this metric to select which individuals would be selected for the RIF. . . . McKinsey recommended the 36 individuals with the lowest year-over-year profit growth for the reduction in force. I reviewed McKinsey's recommendations and implemented them.

         The umbrage with which Deere takes these variations is not clearly presented, but it seems that he believes the Court should strike sections of both Ritter affidavits on the bases of discovery violations, hearsay, and internally inconsistent representations by XPO. Finding none of these, the Court declines to do so.

         Beginning with the last protest, Deere accuses XPO of changing its story to now reveal the name, and limit the involvement, of a previously undisclosed “outside consultant.” To make that leap, Deere reads the Ritter Affidavit to mean that Ritter fired him in conjunction with the “outside consultant, ” and he interprets the Second Ritter Declaration to mean that Ritter, acting alone, adopted and implemented McKinsey's suggestions. (See Strike Motion at 8.) Unlike Deere, the Court does not view the Second Ritter Declaration as inconsistent with the first Ritter Affidavit or with any of the other statements quoted above. But more importantly, the level of involvement of the outside consultant is immaterial to the outcome of the SJ Motion because XPO concedes that it terminated Deere, and it is XPO's animus (or lack of it)-not McKinsey's-that is being tested in this case.

         Moreover, summary judgment movants are permitted, by affidavit, to clarify their earlier positions in response to arguments raised in opposition. See, e.g., Altamirano v. Chem. Safety & Hazard Investigation Bd., 41 F.Supp.3d 982, 993 (D. Colo. 2014) (“[W]here the reply affidavit merely responds to matters placed in issue by the opposition brief and does not spring upon the opposing party new reasons for the entry of summary judgment, reply papers-both briefs and affidavits-may properly address those issues.”); see also Gates Corp. v. Dorman Products, Inc., No. 09-cv-02058-CMA-KLM, 2009 WL 4675099, at *2 (D. Colo. Dec. 7, 2009) (finding that arguments in a reply brief are not considered “new” where they respond directly to arguments raised in the response brief). Since Deere surmises in opposition that RIF decisions were made in part by an outside consultant who has not been identified, XPO is permitted to clarify in reply that Ritter alone had final decision-making authority and give the name of that consultant. (See Statement ¶ 5). Because the Ritter materials may be read together harmoniously, the Court will not strike either on this basis.

         Second, to the extent that Deere reads the Ritter Affidavit incorrectly, is confused, or believes he has lost the opportunity to glean discovery from McKinsey, his troubles are self-inflicted. Deere cannot dispute that he has been aware of the “outside consultant” since at least 2017, many months before the discovery deadline on April 1, 2018. (See ECF Nos. 24, 65-1.) Even though he grumbles that XPO did not reveal McKinsey's name until now, the record does not reflect that Deere ever attempted to compel a more specific interrogatory response from XPO to supply that information.^[9] Rather than “concealment, ” as Deere describes ...