United States District Court, S.D. Mississippi, Eastern Division
ALBERT H. FAULSTICK, Plaintiff,
SOUTHERN TIRE MART, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Defendant Southern Tire Mart, LLC's Motion to Strike Plaintiff's Expert Designation and to Exclude Testimony of Craig A. Silva, CPA ("Motion to Strike")  and Motion for Summary Judgment . Having considered the submissions of the parties, the record, and the applicable law, the Court finds that the Motion to Strike  should be granted and that the Motion for Summary Judgment  should be granted in part and denied in part.
Plaintiff Albert H. Faulstick alleges employment discrimination based on age against his former employer, Southern Tire Mart, LLC ("Southern Tire"). Faulstick was employed by Southern Tire as an airplane pilot from 2005 to 2011. Southern Tire is a commercial truck tire dealer that manufactures and sells new tires and retreads. Southern Tire maintains its headquarters in Columbia, Mississippi, and has sixty-five locations across the United States. Southern Tire owns a company airplane and its owners and employees regularly use the airplane to visit Southern Tire's stores and customers. Thomas Duff and James Duff (sometimes collectively referred to as the "Duffs"), who are brothers, each own 50% of Southern Tire.
Southern Tire owned a Hawker 850, a mid-size airplane, during the majority of the time Faulstick was employed by the company. The Hawker 850 is designed to be flown by two pilots. Faulstick and Clyde Esplin, another pilot employed by Southern Tire, flew the Hawker 850 approximately two times per week during the course of their employment.
In or about September of 2011, Southern Tire purchased a Hawker 4000, a super mid-size airplane. Neither Faulstick nor Esplin was certified to fly the Hawker 4000. Faulstick contends that on October 1, 2011, the day before he was scheduled to leave for training to fly the Hawker 4000, Thomas Duff called him and advised that he was not to leave for training; that he was being reclassified as a back-up pilot; and that his employment would be terminated at the end of the year. Faulstick further alleges that approximately two weeks later, James Duff told him Southern Tire was "looking for long term employment" when he asked why he was being terminated. Clyde Esplin was allowed to receive training to fly the Hawker 4000. However, Esplin was subsequently terminated in November of 2011.
Faulstick was seventy-two (72) years old when his employment relationship with Southern Tire was terminated, while Clyde Esplin was approximately forty-four (44) years old at the time of his termination. Faulstick alleges that Southern Tire hired Charles Brantley Oursler as his replacement. Oursler was thirty-four (34) when he was hired by Southern Tire on September 30, 2011. Southern Tire contends that Faulstick was replaced by Jarrett L. Howard, who was hired on November 28, 2011, at the age of forty-two (42). It appears to be undisputed that both Oursler and Howard required training in order to be certified to fly the Hawker 4000 upon their retention by Southern Tire. In short, Albert Faulstick and Clyde Esplin were out and Charles Oursler and Jarrett Howard were in as Southern Tire's pilots by January, 2012.
On March 7, 2012, Faulstick filed a Charge of Discrimination [58-9] with the Equal Employment Opportunity Commission ("EEOC"). Faulstick asserted that he was terminated because of his age and replaced by a younger employee in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. On September 25, 2012, the EEOC issued its Dismissal and Notice of Rights [58-10], advising Faulstick that he had ninety (90) days to file suit under the ADEA.
On December 7, 2012, Faulstick filed suit against Southern Tire in the United States District Court for the Eastern District of Louisiana. ( See Compl. .) Subject matter jurisdiction is asserted under Title 28 U.S.C. § 1331 on the basis of a federal question. The Complaint only presents one claim for relief: Faulstick's allegation that Southern Tire violated the ADEA by terminating him on the basis of his age. Faulstick seeks, inter alia, back pay, front pay, compensatory damages for emotional distress and mental anguish, liquidated damages under 29 U.S.C. § 626(b), and attorney's fees. On April 4, 2013, the Louisiana District Court transferred the proceeding to this Court for the convenience of the parties and witnesses pursuant to 28 U.S.C. § 1404(a). ( See Order and Reasons .)
In seeking summary judgment, Southern Tire posits that Faulstick and Esplin were both terminated due to numerous performance and safety issues, and that Faulstick's age was not a factor in the termination decision. Southern Tire also argues that Faulstick's stated opposition to moving up to the larger Hawker 4000 played a part in the Duffs' decision to terminate him. Southern Tire separately requests that Faulstick's financial expert, Craig A. Silva, CPA, be precluded from offering testimony in this action. ( See Mot. to Strike .)
I. Motion to Strike 
Faulstick's expert witness designation deadline was October 1, 2013. ( See Case Mgmt. Order  at p. 4.) On March 13, 2014, Faulstick served a copy of an Expert Report [56-2] prepared by Craig Silva, CPA. Silva was retained "as an expert accountant to evaluate" Faulstick's lost wages. (Expert Report [56-2 at ECF p. 4].) Silva calculates Faulstick's loss of earnings for the period of January 1, 2012 to December 31, 2016, at $625, 655. (Expert Report [56-2 at ECF p. 7].)
Southern Tire contends Silva should be excluded as an expert witness because his opinion is unreliable and because he was not timely designated in accordance with the Court's Case Management Order. The Court need not consider the reliability of Craig Silva's opinions. Faulstick's designation of Silva as an expert witness was clearly untimely and no adequate justification for the late disclosure has been provided to the Court.
Under Rule 26 of the Federal Rules of Civil Procedure, "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed.R.Civ.P. 26(a)(2)(A). As to a retained expert witness, a party's disclosure must include a written report prepared by the witness containing, inter alia, "a complete statement of all opinions the witness will express and the basis and reasons for them; [and] the facts or data considered by the witness in forming them...." Fed.R.Civ.P. 26(a)(2)(B). The purpose behind the expert report requirement "is to avoid the disclosure of sketchy and vague' expert information, as was the practice under the former rule." Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996) (citing Fed.R.Civ.P. 26 advisory committee's note). Expert disclosures are to be made in the sequence ordered by the court and are to be supplemented in accordance with Rule 26(e). See Fed.R.Civ.P. 26(a)(2)(D)-(E). Under this Court's Local Uniform Civil Rules, absent a finding of just cause, a party's failure to make full expert disclosures by its "expert designation deadline is grounds for prohibiting introduction of that evidence at trial." L.U.Civ.R. 26(a)(2). A party seeking to designate an expert without providing full disclosure will not be considered to have met its expert designation deadline and the disclosure may be stricken upon motion or by the court sua sponte. L.U.Civ.R. 26(a)(2)(B); see also Fed.R.Civ.P. 37(c)(1).
Craig Silva's March 13, 2014 Expert Report [56-2] was served approximately five (5) months subsequent to the expiration of Faulstick's October 1, 2013 expert witness designation deadline. Faulstick did not disclose any of the expert witness information required by Rule 26(a)(2)(B), such as a complete statement of all opinions Silva will express and the reasons for them, prior to October 1. Accordingly, Faulstick's designation of Silva was late and the Court considers whether Silva should be precluded from offering expert testimony at trial due to this discovery violation. District courts possess broad, considerable discretion in discovery matters. See Sierra Club, Lone Star Chapter, 73 F.3d at 569 (citations omitted). That discretion, however, is to be guided by the following four factors in determining whether to exclude untimely expert witness testimony: "(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice." Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)).
Faulstick offers no explanation as to why he failed to make full expert disclosures regarding Craig Silva prior to his expert witness designation deadline. Therefore, the first Hamburger factor weighs in favor of exclusion.
Silva's opinions have no bearing on liability or the outcome of Southern Tire's Motion for Summary Judgment . The opinions only weigh upon certain of Faulstick's damage claims. To the extent Silva's testimony is considered to be important to Faulstick's ability to obtain certain damages, "the importance of the testimony underscores how critical it was for" Silva to have been timely designated. Hamburger, 361 F.3d at 883. Thus, the second Hamburger factor only slightly militates against exclusion.
The Court finds that Southern Tire would be prejudiced if Silva provided expert testimony at trial. Faulstick served Silva's Expert Report approximately four (4) months after the expiration of Southern Tire's expert designation deadline and with only nineteen (19) days remaining before the close of discovery. As a result, Southern Tire was prohibited from timely designating an expert witness to address Silva's opinions. It is unreasonable to expect a party to alter its preparation of the litigation, seek permission to designate an expert witness out of time, retain and designate an expert, and conduct expert witness discovery-all within the span of 19 days-because its opponent violates a scheduling order. The Fifth Circuit has affirmed the exclusion of expert testimony under analogous circumstances. See Geiserman, 893 F.2d at 791 (rejecting the plaintiff's contention that "a couple weeks" delay in designating an expert witness would not have prejudiced the defendant; the delay "would have disrupted the court's discovery schedule and the opponent's preparation"). Faulstick's argument that Southern Tire cannot claim prejudice because it was put on notice of his plan to retain Craig Silva prior to October 1, 2013, is not well taken. Faulstick's March of 2013 opposition to the transfer of venue and September 18, 2013 discovery responses only identify Silva as a potential expert witness. For example, Faulstick's response to Interrogatory No. 4 states in pertinent part that "Plaintiff has not retained any experts in this matter, however, it is anticipated that Plaintiff may seek to retain... Craig Silva... to address loss of earnings...." (Doc. No. [65-3] at p. 5.) When October 1 came and passed without any expert report from Silva, it was reasonable for Southern Tire to presume that Faulstick had decided not to retain Silva and that no rebuttal expert testimony regarding loss of earnings would be necessary. Furthermore, neither Faulstick's opposition to the transfer of venue nor his discovery responses supply any of Silva's opinions.
A continuance would likely cure the aforementioned prejudice. On the other hand, a continuance would also result "in additional delay and increase the expense of defending the lawsuit." Hamburger, 361 F.3d at 883 (citation omitted). Further, "a continuance would not deter future dilatory behavior, nor serve to enforce local rules or court imposed scheduling orders." Geiserman, 893 F.2d at 792 (citing Bradley v. United States, 866 F.2d 120, 126 (5th Cir. 1989)). The Court also notes that neither Faulstick nor Southern Tire requests a continuance in connection with Craig Silva's untimely designation. On the whole, the Court's consideration of the Hamburger factors counsels in favor of the exclusion of Craig Silva and a grant of the Motion to Strike .
II. Motion for Summary Judgment 
A. Standard of Review
Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation and internal quotation marks omitted). The nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Id. "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). "An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812 (citation omitted).
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is mandatory "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Southern Tire argues that Faulstick's "claim fails as a matter of law and should be dismissed with prejudice because the facts are uncontroverted that there has been no ADEA violation." (Def.'s Mot. for SJ  at ¶ 1.) The ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age...." 29 U.S.C. § 623(a)(1). To establish a violation of the ADEA, a claimant "must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the but-for' cause of the challenged employer decision." Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009)). "Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995)). When a plaintiff relies on circumstantial evidence to prove age discrimination, courts within the Fifth Circuit apply the familiar burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010); Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005).
Faulstick contends there is direct evidence of age-based discrimination and that his claim survives summary judgment under the McDonnell Douglas analysis. Each contention will be addressed in turn. The Court will then address Southern Tire's alternative request for summary judgment as to certain of Faulstick's damage claims.
1. Direct Evidence
Faulstick characterizes two statements as direct evidence of his termination being based on age. First, Faulstick cites James Duff's alleged statement that Southern Tire was looking for "long term employment" when Faulstick asked why he was being released. Second, Faulstick points to references to his age contained in Southern Tire's position statement submitted to the EEOC on March 14, 2012: "Mr. Faulstick did not want, at his age, to go through the 28 day intensive training class and re-learn how to fly/operate a new plane, such as the Hawker 4000.... Insurance regulations would not allow Mr. Al Faulstick, age 72, to fly and operate this much larger jet." (Def.'s Position Statement [66-2 at ECF pp. 2, 3]) (emphasis added).
"In order for an age-based comment to be probative of an employer's discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was an impermissible factor in the decision to terminate the employee." Moss, 610 F.3d at 929 (citation omitted). Remarks or comments may constitute evidence of discrimination if the comments "are:
1) age related, 2) proximate in time to the employment decision, 3) made by an individual with authority over the employment decision at issue, and 4) related to the employment decision at issue." Id. Mere stray remarks in the workplace are not actionable. See Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999).
There is no need to apply the above-quoted four factors to Faulstick's purported direct evidence of age discrimination because it does not directly and unambiguously evince discriminatory animus. Even Faulstick acknowledges that inferences and presumptions are required to consider James Duff's statement that Southern Tire was looking for "long term employment" as proof of his termination being based on age. The statement " implies that Southern Tire wanted someone younger who might be expected to stay on the job longer. At the very least, a reasonable jury certainly should be permitted to draw that inference within the context of all the evidence presented at trial." (Pl.'s Mem. in Opp. to Mot. for SJ  at p. 8) (emphasis added). The Fifth Circuit has found comments similar to those attributed to James Duff to fall short of being considered direct evidence of age-based discrimination. See Kilgore v. Brookeland Indep. Sch. Dist., 538 Fed.Appx. 473, 476 (5th Cir. 2013) (agreeing with the district court that a supervisor's statement that the plaintiff was "eligible for retirement" failed to constitute direct evidence of discrimination); Moss, 610 F.3d at 929 (same result with respect to the statement that the defendant was looking to retain someone at a "more junior level"); Sandstad, 309 F.3d at 897-98 (rejecting the plaintiff's reliance on the defendant's plan to "identify... younger managers... for promotion to senior management over the next 5 years, ultimately replacing senior management" as direct evidence of age-based animus since an inference was required to find that the defendant's plan was to fire senior managers in favor of younger trainees).
The remark in Southern Tire's EEOC position statement that "Faulstick did not want, at his age, to go through the 28 day intensive training class and re-learn how to fly/operate a new plane" could be interpreted to reflect the feelings of Faulstick, as opposed to Southern Tire, with respect to the relationship between his age and the company's purchase of the Hawker 4000. (Def.'s Position Statement [66-2 at ECF p. 2].) Standing alone, the statement that "[i]nsurance regulations would not allow Mr. Al Faulstick, age 72, to fly" arguably indicates that Faulstick's age played a part in Southern Tire's employment decision. Yet, the following portion of the position statement provides that Faulstick was terminated for cause: "Both previous pilots [Faulstick and Esplin] on the Hawker 850 were terminated due to cause. The chief pilot was terminated for flying with behavior deemed unsafe and disconcerting. Mr. Faulstick was very aware of these actions and did not do anything to correct or bring these improper actions to light." (Def.'s Position Statement [66-2 at ECF p. 2].) In the Court's view, Southern Tire's position statement, taken as a whole, is ambiguous and fails to constitute direct evidence of age discrimination. Cf. Manaway v. Med. Ctr. of Se. Tex., 430 Fed.Appx. 317, 324 (5th Cir. 2011) (holding that an excerpt from a supervisor's memorandum-construed in a vacuum-could be considered direct evidence of discriminatory retaliation, but concluding that the excerpt was ambiguous and not actionable since other portions of the memorandum addressed the plaintiff's deficient work performance). Thus, the Court must determine if Faulstick has proffered sufficient circumstantial evidence to avoid summary judgment on his ADEA claim.
2. Circumstantial Evidence
Under the McDonnell Douglas framework, a claimant "relying on circumstantial evidence must put forth a prima facie case, at which point the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the employment decision." Moss, 610 F.3d at 922 (citation omitted). If the employer meets its burden, the plaintiff is then afforded an opportunity to show that the employer's reason is a pretext for discrimination. Id. "Although intermediate evidentiary burdens shift back and forth under this framework, [t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
a. Prima Facie Case
In order to establish a prima facie case of age discrimination, a plaintiff must show: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of the discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age. Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 455 (5th Cir. 2011) (citing Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004)). "Although the precise elements of this showing will vary depending on the circumstances, the plaintiff's burden at this stage of the case is not onerous." Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012) (citation and internal quotation marks omitted). Only the second element is in dispute between the parties for purposes of summary judgment. Faulstick was 72 at the time of his termination, and he was replaced by someone substantially younger, either Charles Oursler (age 34) or Jarrett Howard (age 42).
Southern Tire argues that Faulstick was unqualified for the position in question because he was not type-rated or otherwise qualified to fly the Hawker 4000 at the time of his termination. "[A] plaintiff challenging his termination or demotion can ordinarily establish a prima facie case of age discrimination by showing that he continued to possess the necessary qualifications for his job at the time of the adverse action." Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988). In Bienkowsi, the Fifth Circuit explained this means the plaintiff has not suffered a physical disability, lost a necessary license, or experienced some other circumstance rendering him unfit for the job for which he was retained. Id. at 1506 n.3. This rule from Bienkowski has been carried forward by several Fifth Circuit decisions. No claim is made that Faulstick suffered from any physical disability or lost a professional license during his employment with Southern Tire. It appears that Faulstick's fitness or qualifications for flying were substantially the same at the time of his hire and his subsequent termination. Thus, Faulstick was sufficiently qualified for continued employment with Southern Tire under Bienkowski.
Southern Tire's argument regarding Faulstick's qualifications focuses on the Fifth Circuit's decision in Martin v. Lennox International Inc., 342 Fed.Appx. 15 (5th Cir. 2009). Russell Martin ("Martin") began working as a pilot for Lennox International Inc. ("Lennox") in 1995. Martin, 342 Fed.Appx. at 16. Martin suffered a heart attack in June of 2005, which resulted in his being grounded by the Federal Aviation Administration ("FAA"). Id. Under FAA regulations, Martin was grounded for a six-month recovery period and had to be medically re-certified in order to return to piloting. Id. In January of 2006, Martin informed Lennox that his medical re-certification had been delayed and he was uncertain as to when he would be able to return to his former position. Id. Martin was terminated on January 31, 2006. Id. Martin subsequently filed suit against Lennox, alleging violations of the ADEA and other causes of action. Id. at 16-17. The district court granted summary judgment in favor of Lennox and the Fifth Circuit affirmed. Id. "Martin was not qualified to work as a pilot because he lacked the required FAA certification at the time he was terminated." Id. at 17. Consequently, Martin was unable to establish a prime facie case of discrimination under the ADEA. Id. Martin's contention that his supervisor improperly refused to send him to flight training during his medical leave of absence was rejected because, among other reasons, Martin was not certified to fly at the time of the subject training. Id. at 18.
Martin is distinguishable from this case in several respects. Unlike Martin, Faulstick did not suffer any physical illness during the course of his employment resulting in the FAA taking away his certification to pilot airplanes. Furthermore, Faulstick could still fly airplanes at the time of his termination. He just could not pilot the Hawker 4000, which was no different from when he was initially hired by Southern Tire. Also dissimilar to Martin, Faulstick was medically certified by the FAA when he was precluded from receiving training to operate the Hawker 4000. Therefore, the Court is unable to say that Southern Tire's "refusal to allow... [Faulstick] to attend the training... could not have affected his employment situation...." Martin, 342 Fed.Appx. at 18. Southern Tire's suggestion that it would have terminated Faulstick due to safety concerns even if he was qualified to fly the Hawker 4000, is better addressed at the ...