Escander v. Wormuth
| Docket Number | 5:20-CV-589-BO |
| Decision Date | 07 June 2023 |
| Parties | TAMER ESCANDER. Plaintiff. v. CHRISTINE WORMUTH, SECRETARY, U.S. DEPARTMENT OF THE ARMY, Defendant. |
| Court | U.S. District Court — Eastern District of North Carolina |
This cause comes before the Court on defendant's motion for summary judgment and motion to strike. Plaintiff has responded, defendant has replied, and in this posture the matters are ripe for ruling. For the reasons that follow defendant's motion for summary judgment is granted and motion to strike is denied.
Plaintiff initiated this action by filing a complaint in the United States District Court for the District of Columbia. Plaintiff s complaint was subsequently transferred to this district. Defendant moved to dismiss plaintiff s complaint and plaintiff sought leave to amend. The motion to dismiss was denied and plaintiff was granted permission to file an amended complaint. A period for discovery commenced thereafter. Prior to the close of discovery, plaintiff sought an extension of the discovery period. Plaintiff s request which was opposed by defendant, was denied. The instant motions followed.
Plaintiff s amended complaint alleges three claims of employment discrimination in violation of Title VII of the Civil Rights of 1964, as amended. 42 U.S.C. §§ 2000e, el seq. His claims arise from his employment as an Arabic language instructor within the Department of Central Asian and Middle Eastern Languages at the U.S. Army John F. Kennedy Special Warfare Center and School (SWCS), Fort Bragg, North Carolina. Plaintiff s national origin is Egyptian, and his religion is Coptic Christian. Plaintiff alleges that he was subjected to religious discrimination and national origin discrimination as well as reprisal for having engaged in protected activity by “serving as a witness to support [a colleague] in his EEO and security clearance matters." [DE 43 ¶ 63], Defendant (hereinafter “the Secretary" or “defendant") has moved for summary judgment pursuant to Fed.R.Civ.P. 56 in her favor on each of plaintiff s claims. She has also moved to strike certain documents attached to plaintiff s response in opposition to the motion for summary judgment.
1. Motion to Strike.
The Secretary seeks to exclude from the evidence [DE 70-6 through 70-10] which plaintiff first produced in support of his opposition to her motion for summary judgment and which he failed to disclose as required by Fed.R.Civ.P. 26(a)(1) and 26(e). Four of the exhibits were a part of plaintiff s EEO proceedings against his employer, MultiLingual Solutions, not the Army. The fifth is an email that has been in plaintiff s possession but was not disclosed.
Pursuant to Rule 37 of the Federal Rules of Civil Procedure "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (3), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial[.]“ Fed.R.Civ.P. 37(c)(1). The prohibition does not apply if the failure to disclose the information or witness was "substantially justified or . . . harmless." Id. When deciding a request to exclude under Rule 37, a court considers “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence." 5. States Rack Aad Fixture. lac. v. Sherwin-Williams Co., 318 F.3d 592. 597 (4th Cir. 2003).
Plaintiff s failure to produce or describe the documents related to his EEO proceeding against his former employer MultiLingual Solutions was not substantially justified. Plaintiffs description in his initial disclosures concerning his "EEO complaint" and "[d]ocuments and filings generated during the processing of [plaintiff s] EEO complaint and all EEOC proceedings related thereto" on its face relates to his EEO proceedings against the Army, not his EEO proceedings against MultiLingual Solutions. Plaintiff s explanation for failing to disclose these documents as well as an email in plaintiff s possession during discovery is further insufficient. However, the Court finds the failure to ultimately be harmless because, as defendant argues, the documents either do not advance plaintiff s claims or they support the defendant's position. Accordingly, the Court will not strike the above-cited exhibits and will consider them in its analysis of defendant's motion for summary judgment.
II. Motion for Summary Judgment.
A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242. 252 (1986). “A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. . . . and [a] fact is material if it might affect the outcome of the suit under the governing law." Libertarian Party of Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations omitted). Speculative or conclusory allegations will not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002).
The following facts are undisputed unless otherwise noted. The Department of Defense awarded a contract to four contractor staffing firms to provide foreign language, regional expertise, and culture instruction in support of the U.S. Special Operations Command (hereinafter “LREC program"). Per the agreement, [59-3] ("LREC contract"), a task, order was to be issued for each class or group of classes. The government was required to evaluate the vendor's or contractor's performance under the contract and required the contractor to submit a program/plan for both preservice and in-service professional development of its instructors. The vendors were to provide management of the LREC program, to include overall supervision and coordination of work required under the contract as well as recruiting, screening, and hiring of personnel. The agreement further required the vendors to supervise and evaluate all vendor personnel, including by observing and evaluating LREC instructors and managing teaching methodology. The government provided the materials, facilities, and equipment for performance of the contract. Instructor hours, including plaintiff s, were set by the contract. The LREC contract provided that the services provided by the vendors were non-personal services and that no employer-employee relationship existed between the government and the vendor or its employees.
From 2011 to 2014. plaintiff worked as a contract Arabic instructor in the Center for Language and Culture (hereinafter "Language Center"). U.S. Army Special Operations Command Division, at the U.S. Army John F. Kennedy S WCS. He also worked one day as a substitute Arabic instructor in 2015. During the time period relevant to plaintiff s claims. Dr. AmirNabipour was a department chairperson at the Language Center and was supervised by Terry Schnurr, a supervisory training instructor. Dr. Nabipour supervised ten civilian employees and did not supervise contract employees or control contractor employment status.
In 2014. plaintiff was hired by MultiLingual Solutions, Inc. to teach Arabic at the Language Center pursuant to MultiLingual Solution's contract with the Army. Plaintiff reported to the Language Center on March 10, 2014, for a teaching cycle that ended on July 7, 2014. David Putnam was the onsite program manager for MultiLingual Solutions and plaintiff s supervisor. Mr. Putnam approved plaintiff s leave requests and MultiLingual Solutions prepared his performance evaluations and determined his rate of pay and benefits. Army officials would periodically visit instruction areas to ensure that contractors like MultiLingual Solutions were performing adequately under the terms of their respective contracts. On March 11, 2014, Dr. Nabipour conducted a quality assurance observation of plaintiff s class. On March 27, 2014, and April 2. 2014, two other government observers conducted quality assurance observations of plaintiff s classes. These evaluations were provided to the contracting officer and his or her representative for overall quality assurance of government contracts.
In his amended complaint, plaintiff alleges that Dr. Nabipour incorrectly, found that plaintiff had been teaching without a lesson plan and was otherwise not meeting all required standards. Plaintiff alleges that his supervisor, Mr. Putnam, confronted plaintiffin class on April 2, 2014, and informed plaintiff that he would be fired if Dr. Nabipour complained about plaintiff one more time. Dr. Nabipour's evaluation reveals that he did not find plaintiff to have been teaching without a lesson plan and noted that Dr. Nabipour "enjoyed...
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