United States District Court, D. Colorado
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 ...