Elion v. Jackson, Civil Action No. 05-0992 (PLF).
| Decision Date | 07 April 2008 |
| Docket Number | Civil Action No. 05-0992 (PLF). |
| Citation | 544 F.Supp.2d 1 |
| Parties | Saundra G. ELION, Plaintiff, v. Alphonso R. JACKSON, Secretary, United States Department of Housing and Urban Development, Defendant. |
| Court | U.S. District Court — District of Columbia |
Robert C. Seldon, Molly E. Buie, Robert C. Seldon & Associates, PC, Washington, DC, for Plaintiff.
Heather D. Graham-Oliver, John C. Truong, U.S. Attorney's Office, Washington, DC, for Defendant.
This is an employment discrimination case in which the plaintiff, an African American woman, alleges race and gender discrimination and retaliation for engaging in protected activity, all under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 ("Title VII"). Both parties seek to call witnesses at trial to offer so-called "me too" testimony. The purpose of such testimony is to support (or, in defendant's case, to undermine) the inference that defendant, the United States Department of Housing and Urban Development ("HUD"), discriminated and retaliated against plaintiff when it disbanded the Headquarters Audit Division ("HAD") and reassigned her in April 2004. Both parties also seek to call certain witnesses to testify about other collateral but purportedly relevant matters. Each party has filed various papers arguing that this Court should preclude the other party from offering its proposed witnesses.1
On March 5, 2008, this Court issued an Order setting forth its conclusions with respect to whether these witnesses would be permitted to testify, and, if so, how their testimony would be limited. The Court now sets forth its reasoning for its conclusions with respect to defendant's proffered witnesses, Sharelle Higgins, Joan Hobbs and Brenda Patterson.
Ms. Higgins will testify, if permitted to do so, that, as a result of her reassignment, "[p]laintiff suffers no detriment as far as entry into the [Senior Executive Service] nor is she precluded from further promotional opportunities." Def.'s Supp. at 9. The purpose of this testimony, it seems, is to rebut any inference that Ms. Elion's reassignment damaged her long-term prospects for career advancement and promotion. If permitted to testify, Ms. Hobbs will testify as to her personal knowledge of "[d]efendant's favorable treatment of female employees" — including herself — "with respect to career progression and promotion," Def.'s Supp. at 3-4, and about her personal experience as a (former) subordinate of Ms. Elion. See Joint Pretrial Stmt, at 18.2 Ms. Patterson, if permitted, will testify "about her personal knowledge of and experience with how [HUD's Office of Audit] treats its minority employees" — including herself — "with respect to promotion and career progression." See id.; see also Def.'s Supp. at 3.3
Plaintiff argues that Ms. Higgins and Ms. Patterson should not be permitted to testify because their identities as potential witnesses were not disclosed until the Joint Pretrial Statement was filed (just two weeks before the originally scheduled trial date and well after discovery had closed), and that Ms. Hobbs may not testify because, while her identity was disclosed in defendant's initial disclosures, she was proffered only for the purpose of testifying about her experience as Ms. Elion's subordinate. See Pl.'s Fifth Mot. at 3-5; see also Pl.'s Disclosure Supp. at 2-3. Alternatively, plaintiff argues that none of these witnesses has relevant testimony to offer. See id. at 3 (Hobbs); Pl.'s Me Too Supp. at 2 (Patterson and Higgins).
Defendant responds that these witnesses have relevant testimony to offer, and that it was permitted to withhold their identities because (1) they are offered solely as impeachment witnesses, and their identities therefore were properly withheld under Rules 26(a) and 26(e) of the Federal Rules of Civil Procedure; (2) even if these witnesses should have been disclosed, defendant's failure to disclose their identities was substantially justified and/or harmless and therefore not sanctionable; and (3) Local Civil Rule 16.5(b)(5) permits the withholding of witnesses' names until the filing of the Joint Pretrial Statement. See Def.'s Supp. at 7-10.4
Although the Court does not agree with either party's analysis of these issues under the Federal and Local Rules, it does agree that the disputes turn largely on the interaction of various discovery provisions set forth in the Federal Rules of Civil Procedure.
Rule 26(a)(1) of the Federal Rules of Civil Procedure governs initial disclosures. Under that provision, parties must disclose, without awaiting a discovery request, the identity of "each individual likely to have discoverable information ... that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment." FED. R.CIV.P. 26(a)(1) (emphasis added). Rule 26(a)(3), governing pretrial disclosures close in time to trial and after the close of discovery, has a similar provision.
Rule 26(b), by contrast, governs the scope of formal discovery. See FED. R.CIV.P. 26(b). Under that provision, parties may "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including ... the identity and location of persons who know of any discoverable matter." FED.R.CIV.P. 26(b)(1). Notably, this provision does not exclude witnesses who might have information solely relating to impeachment.
Rule 26(e) provides that parties "who [have made] a disclosure under Rule 26(a) — or who [have] responded to an interrogatory, request for production, or request for admission [as part of formal discovery] — must supplement or correct [their] disclosure or response ... in a timely manner." FED.R.CIV.P. 26(e). Rule 37(c)(1) states that a party who fails to provide the identity of witnesses as required by Rule 26(a) and Rule 26(e) shall be precluded from calling those witnesses at trial unless the failure was "substantially justified or is harmless." FED.R.CIV.P. 37(c)(1). Rule 37(c)(1) is a self-executing sanction, and the motive or reason for the failure is irrelevant. See Elion v. Jackson, Civil Action No. 05-992, 2006 WL 2583694, at *1 (D.D.C. Sept. 8, 2006).
In this case, the defendant did disclose the identity of two of the three witnesses at issue in a timely manner. Defendant disclosed the identity of Joan Hobbs in its initial disclosures pursuant to Rule 26(a)(1). See Defendant's Rule 26(a)(1) Disclosures at 3. Defendant also disclosed the identity of Brenda Patterson in its response to plaintiffs first set of interrogatories. See Defendant's Response and Objection to Plaintiff's First Set of Interrogatories and First Request for Production of Documents, Response to Interrogatory Number 1(c), at 5. It appears that defendant did not disclose Ms. Higgins' identity until well after the close of discovery when the parties filed their Joint Pretrial Statement.
The Court concludes that Ms. Higgins' testimony must be excluded under Rule 37 of the Federal Rules of Civil Procedure. As noted above, Rule 26(b) permits parties to discover "any nonprivileged matter that is relevant to any party's claim or defense — including ... the identity and location of persons who know of any discoverable matter." FED. R.CIV.P. 26(b)(1) (emphasis added). Pursuant to that Rule, plaintiff propounded an interrogatory seeking the identities of "all persons with knowledge, personal or otherwise, on which [defendant relies] in support of the First, Second, Third, and Fourth Affirmative Defenses of Defendant's Answer to the Complaint in this action." Defendant's Response and Objection to Plaintiff's First Set of Interrogatories and First Request for Production of Documents, Interrogatory Number 1(c), at 4 (emphasis added).5 As defendant intends to rely on Ms. Higgins to support its defenses at trial — apparently, to show that Ms. Elion cannot state a claim for relief because she cannot show that she was reassigned under circumstances giving rise to an inference of discrimination, see Defendant's Motion for Summary Judgment at 7 — Ms. Higgins' knowledge is relevant to those defenses. See FED.R.CIV.P. 26(b)(1). Defendant therefore was required to disclose Ms. Higgins' identity in response to plaintiffs interrogatory seeking the identity of all persons on whose knowledge HUD would rely to support its defenses — or, if defendant was unaware of Ms. Higgins or the nature of Ms. Higgins' testimony at the time it responded to this interrogatory, to supplement its response in a timely manner under Rule 26(e). See FED.R.CIV.P. 26(e). As defendant failed to fulfill its duties under Rule 26(e), the Court must look to Rule 37 for the appropriate remedy.
Under Rule 37, the sanction of exclusion of a witness is "automatic and mandatory unless the party to be sanctioned can show that its violation ... was either [substantially] justified or harmless." NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776, 785-86 (7th Cir. 2000). The burden is on the party facing sanctions to prove that its violation was either substantially justified or harmless. See Elion v. Jackson, 2006 WL 2583694 at *1 (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir.2001)). The Court agrees with plaintiff that defendant cannot make that showing because defendant's failure to disclose Ms. Higgins prevented plaintiff from preparing to meet Ms. Higgins' testimony. See, e.g., United States ex rel. Purcell v. MWI Corp., 520 F.Supp.2d 158, 168 (D.D.C.2007) (). Thus, Ms. Higgins will be excluded from testifying at trial.
Defendant's argument that Ms. Higgins need not have been disclosed because she is offered "solely for...
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