Cooper v. City of St. Louis, Missouri, 060821 FED8, 19-2705

Docket Nº19-2705
Opinion JudgeLOKEN, CIRCUIT JUDGE
Party NameRodney Alan Cooper Plaintiff-Appellant v. City of St. Louis, Missouri Defendant-Appellee
Judge PanelBefore SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
Case DateJune 08, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (8th Circuit)

Rodney Alan Cooper Plaintiff-Appellant

v.

City of St. Louis, Missouri Defendant-Appellee

No. 19-2705

United States Court of Appeals, Eighth Circuit

June 8, 2021

Submitted: December 17, 2020

Appeal from United States District Court for the Eastern District of Missouri - St. Louis

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

LOKEN, CIRCUIT JUDGE

Rodney Cooper appeals the judgment entered after a jury found in favor of the City of St. Louis, rejecting his claim of "hostile work environment based on religion." The issue on appeal is whether the district court[1] abused its discretion in precluding Cooper from introducing testimony and a report by Dr. John Rabun, the City's retained but non-testifying expert psychiatrist who had conducted an independent medical examination of Cooper. "We will not reverse a district court's decision [to admit or exclude expert testimony] absent a gross abuse of discretion resulting in fundamental unfairness in the trial of the case." In re Prempro Products Liability Litigation, 514 F.3d 825, 833 (8th Cir. 2008) (quotation omitted). We affirm.

I. Background

Cooper, a utility worker in the City's public parks system, experienced an event in 2013 that made him very religious. From 2013 to 2015, Cooper frequently talked about religion with coworkers in the lunchroom. Roger Berry, Cooper's supervisor, frequently told "Reverend Rodney" to stop talking about religion and allegedly threatened to fire Cooper for his religious speech. In 2015, the City transferred Cooper to a different park, in the same role but with a different supervisor. Cooper commenced this action in September 2016, alleging that the City had subjected him to a hostile work environment because of his religious beliefs, causing "emotional pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of reputation."

The district court denied the City's motion for summary judgment and set the hostile work environment claim for trial on August 20, 2018. In his August 1 pretrial submission, Cooper disclosed he would call his treating therapist, Kristin Bulin, as a witness. The City moved to exclude Bulin because Cooper failed to designate her as a retained expert witness and provide a written expert report, as Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires for retained experts. At the final pretrial conference, the district court vacated the trial date and ordered Cooper to provide the disclosure required by Rule 26(a)(2)(C) for a non-retained expert and to produce Bulin for a deposition by the City no later than September 14. After that deposition, the court entered an Amended Case Management Order providing, as later amended, that any independent medical examination of Cooper pursuant to Rule 35 ("IME") must be completed by January 30, 2019; that the City must then disclose its expert witnesses by February 15 and make them available for deposition no later than March 15; and setting the case for trial on June 10, 2019.

The City hired Dr. Rabun, a licensed psychiatrist, and he conducted an IME of Cooper on January 29. The City did not disclose Dr. Rabun as an expert or provide a...

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