Wagner v. Boh Bros. Constr. Co.
| Decision Date | 22 August 2012 |
| Docket Number | CIVIL ACTION NO. 11-2030 |
| Parties | DARRELL A. WAGNER v. BOH BROS. CONSTRUCTION CO., LLC. |
| Court | U.S. District Court — Eastern District of Louisiana |
JOSEPH C. WILKINSON, JR.
In this employment discrimination case brought pursuant to 42 U.S.C. § 1981, plaintiff Darrell A. Wagner alleges in his complaint that his former employer, Boh Bros. Construction Co., LLC, failed to promote him because of his race, subjected him to a racially hostile work environment and retaliated against him for having complained about race discrimination. Complaint, Record Doc. No. 1. This matter was referred to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c), upon the written consent of all parties. Record Doc. No. 11.
Pending before me is defendant's Motion for Sanctions, Record Doc. No. 38, as supplemented, Record Doc. No. 57, seeking dismissal of the instant case and an award of all of its attorney's fees expended in this matter. The principal bases of defendant's motion are its assertions that Wagner committed perjury during his deposition, produced falsified safety certification credentials during discovery and failed to comply with this court's orders. Having considered the complaint, the record, the written submissions of the parties, the arguments and plaintiff's testimony during the hearing conducted on July31, 2012, and for the following reasons, IT IS ORDERED that defendant's motion is GRANTED IN PART AND DENIED IN PART as follows.
After Boh Bros. filed a motion for summary judgment on all of plaintiff's claims, Wagner in his opposition memorandum voluntarily dismissed his failure to promote and hostile work environment claims. On July 3, 2012, the court dismissed with prejudice his failure to promote and hostile environment claims, but denied defendant's summary judgment motion as to plaintiff's remaining retaliation claims. Record Doc. No. 43. The joint pretrial order was then due to be delivered to the court on July 13, with the final pretrial conference scheduled for July 17 and a jury trial set for July 30, 2012. Record Doc. No. 12.
On July 2, 2012, Boh Bros. filed a Motion for Sanctions, seeking dismissal of the entire case (or alternatively, serious evidentiary sanctions) and an award of attorney's fees. Defendant argued that Wagner had committed perjury during his deposition and had produced falsified safety certification credentials during discovery in this matter. Record Doc. No. 38.
Wagner's memorandum in opposition to defendant's motion was due on July 10, 2012. However, on July 5, 2012, plaintiff's attorney moved to withdraw as counsel of record because, he asserted, plaintiff had terminated his employment and/or had terminated all meaningful communication with him and refused to cooperate inresponding to defendant's motion for sanctions and in preparing the pretrial order. Record Doc. Nos. 46, 49.
The court conducted a telephone conference regarding the motion to withdraw on July 10, 2012. I granted the motion to withdraw and postponed the deadline to submit the pretrial order, the final pretrial conference and the trial dates, to be reset at a later date, if appropriate. I extended until Friday, July 20, 2012 at noon the deadlines by which plaintiff must file with the court and serve on defense counsel his (a) written response to defendant's motion for sanctions; (b) supplemental answer to defendant's Interrogatory No. 11; and (c) proposed pretrial order inserts. Plaintiff was instructed that failure to comply with this order by timely making these submissions may result in dismissal of this lawsuit with prejudice for failure to prosecute and/or as a sanction under Fed. R. Civ. P. 37(b) and 16(f). I also ordered Wagner to appear in person before me on July 31, 2012, to discuss his future representation and the currently pending motions and orders in the case, to show cause for any failure to comply with my order and to set new trial and final pretrial conference dates, if appropriate. Record Doc. No. 51.
The order was served on Wagner by e-mail, by first-class mail, id., and by the United States Marshal on July 17, 2012 at plaintiff's address of record. Record Doc. No. 52. On the afternoon of July 20, 2012, defendant's counsel advised the court in writing that Wagner had failed to produce by noon that day his (a) written response to defendant's motion for sanctions; (b) supplemental answer to defendant's InterrogatoryNo. 11; and (c) proposed pretrial order inserts, as the court had ordered. Counsel for Boh Bros. also advised the court that she would file a supplemental memorandum in support of defendant's motion for sanctions, seeking additional sanctions for plaintiff's failure to comply with the court's July 10th order. Record Doc. No. 53.
Defendant moved for leave to file its supplemental memorandum on July 25, 2012. The motion was granted on July 31, 2012. Record Doc. Nos. 54, 56, 57.
On July 26, 2012, Wagner, appearing pro se, filed a statement in which he asserted that he had not terminated his attorney and that he had cooperated with all of his attorney's requests. He stated that, on the day after the court denied defendant's summary judgment motion, Record Doc. No. 55. This statement in no way responds to or complies with the court's July 10th order.
On July 31, 2012, Wagner appeared before the court as ordered. At the hearing, he was given the opportunity to respond to defendant's supplemental memorandum andto explain why he had not complied with the court's July 10th order. He submitted some documents to the court and defendant's counsel, which were filed into the record as a supplemental opposition to defendant's motion for sanctions. Record Doc. No. 59. Among the documents provided by plaintiff at the hearing, defendant's counsel identified one two-page document entitled "Official Transcript" from the National Center for Construction Education and Research, dated November 12, 2007, which was responsive to defendant's discovery requests, but had not been produced by plaintiff during discovery. Since the July 31st hearing, plaintiff has made no additional submissions to the court, and despite his assurances at the hearing that new counsel would enroll to represent him within two weeks, no such appearance has been made.
While employed by Boh Bros. as a laborer in 2011, Wagner sought promotion to a safety position. In connection with his request, he gave copies of his safety credentials to John Lipani, defendant's in-house counsel. One of the credentials he provided to Lipani was an "OSHA 30 card" dated May 17, 2007 and bearing the identification number 600266442. Defendant's Exh. A, Record Doc. No. 38-2, deposition of Darrell Wagner, at p. 233; Defendant's Exh. B, Record Doc. No. 38-3, deposition of John Lipani, at p. 13; Defendant's Exh. C, Record Doc. No. 38-4, Bates No. BOH000036, OSHA card number 600266442 dated May 17, 2007 (referred to in plaintiff's deposition as Exhibit16). An OSHA 30 card is issued by the Occupational Safety and Health Administration ("OSHA") to certify that a person has successfully completed a 30-hour safety training course. Defendant's Exh. F, Record Doc. No. 38-7, declaration under penalty of perjury of Shelly Mire, Director of Operations at the Gulf Coast Safety Council, formerly known as the Greater New Orleans Industrial Educational Council (the "Safety Council"), in St. Rose, Louisiana, at ¶ 6.
Lipani forwarded plaintiff's credentials to defendant's safety department. A few days later, Wagner filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that Boh Bros. had failed to promote him because of his race. Supervisory employees of Boh Bros. interviewed Wagner for a safety position two days later. Later that same day, defendant terminated plaintiff's employment for reasons unrelated to his safety credentials. Wagner then filed a second EEOC charge of retaliatory termination.
In the instant lawsuit, plaintiff brought claims of racially discriminatory failure to promote, racially hostile work environment and retaliation for having filed his first EEOC charge. His complaint alleged that he had "obtained many safety training certifications; such as, OSHA training." Record Doc. No. 1, at ¶ 11.2
During discovery concerning plaintiff's failure to promote claim, Boh Bros. asked Wagner to produce his safety credentials, including any OSHA 30 cards that he hadobtained. Plaintiff produced a second OSHA 30 card dated May 17, 2008 and bearing identification number 409012455. Defendant's Exh. A, Record Doc. No. 38-2, Wagner deposition, at p. 247; Defendant's Exh. D, Record Doc. No. 38-5, Bates No. 000071, card number 409012455 dated May 17, 2008 (referred to in plaintiff's deposition as Exhibit 17).
The evidence does not establish that Wagner produced in discovery the OSHA card number 600266442 dated May 17, 2007, Bates No. BOH000036. It appears that defendant already had it, as indicated by the facts above and the Bates Number with the prefix BOH.
Defendant deposed Wagner on March 12, 2012. Plaintiff testified that he had obtained his OSHA 30 card in 2005 upon completion of a 30-hour OSHA training course at the Gulf Coast Safety Council (the "Safety Council") in St. Rose, Louisiana. He stated that he lost that card around March 2007 and then contacted the Safety Council for a replacement. He testified that he received by mail from the Safety Council a re-issued OSHA 30 card with the number 600266442, dated May 17, 2007. He identified this card as the one he had given to Lipani...
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