United States District Court, S.D. Mississippi, Northern Division
TOM S. LEE, District Judge.
In its February 19, 2015 opinion, the court reserved ruling on the motion of Eric K. Shinseki, Secretary of the United States Department of Veterans Affairs, for summary judgment as to plaintiff Alice Buckhanan's claim for retaliation under Title VII. At that time, the court offered defendant an opportunity to respond for the purpose of addressing (1) plaintiff's assertion that she was entitled to further firearms training and to be retested following her initial failure to qualify with her firearm, and (2) the admissibility of evidence regarding Jackson VA Medical Center (VAMC) Director Joe Battle's alleged refusal to allow plaintiff to retest with her service weapon unless she dismissed her pending EEOC claim. Both parties have now filed their responses to the court's opinion, and in addition, plaintiff has filed a number of related motions/objections, including (1) an objection to defendant's Exhibit 88-4, an August 22, 2012 email from the VA's legal representative, Johnson Walker; (2) a motion to compel certain emails between Walker and Battle; and (3) a motion to strike defendant's answer for alleged discovery violations. The court herein addresses each of these filings and resolves the remaining issue related to defendant's motion for summary judgment.
Plaintiff's Motion to Strike Answer or for Other Sanctions
Contending that defendant failed to disclose and produce relevant documents that plaintiff requested in discovery, plaintiff has moved the court to strike defendant's answer and to enter a default against it, or alternatively, to vacate the court's prior order granting summary judgment for defendant on her gender discrimination claim. In support of her request for this relief, plaintiff complains of defendant's failure to disclose the VA's Model Standard Operating Procedures which defendant states in its supplemental submission to the court were adopted by the Jackson VAMC Police Department and also complains of defendant's failure to disclose and produce an August 22, 2012 email from VA attorney Johnson Walker to plaintiff and her legal representative, Vaughan Simms, despite requests for production that should have elicited these materials. She also argues, more generally, that in hindsight, it is evident that some of defendant's other discovery responses were less than candid; and she suggests that this alleged lack of candor has prejudiced her. She cites, in particular, defendant's discovery responses (or lack thereof) regarding employee disciplinary and termination records. Finally, she contends that she has come across new proof which shows that defendant may have misled the court regarding Claude Winn, one of the individuals that plaintiff argued during summary judgment briefing on her gender discrimination claim was a comparator but who the court found was not a proper comparator. To the point, plaintiff claims that she recently learned (in May 2015) that Claude Winn, contrary to defendant's earlier representation to her and to the court, remains employed as an officer with the Jackson VAMC Police Department.
Federal Rule of Civil Procedure 37 provides for various forms of sanctions against a party for misconduct related to discovery. However, the Fifth Circuit has held that "usually, ... a finding of bad faith or willful misconduct [is required] to support the severest remedies under Rule 37(b)- striking pleadings or dismissal of a case." Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990); see also Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012) (holding that for severe sanctions, such as "striking pleadings or dismissal of a case, " "a finding of bad faith or willful misconduct [is required].") (citing Pressey, 898 F.2d at 1021). In the case at bar, it is apparent that the relief requested by plaintiff is not warranted, nor for that matter, is any lesser form of sanctions.
In its response to this motion, defendant takes the position - and in the court's opinion, correctly so - that the failure to disclose the Model Standard Operating Procedures was not a discovery violation, as the Model Standard Operating Procedures became relevant only to the preliminary issue of the admissibility of plaintiff's Exhibit J. See infra at 7.
Defendant acknowledges that it did not produce the August 22, 2012 Walker email and that such email would have been responsive to plaintiff's discovery request; but it asserts that its failure to produce this document was entirely inadvertent and certainly not a proper basis for sanctions, particularly since plaintiff and her legal representative were the recipients of the email and hence were or should have been aware both of its existence and of the fact that it had not been produced by defendant in discovery. The court agrees.
Defendant points out that plaintiff's objection regarding its failure to produce employee disciplinary records cannot be a discovery violation since defendant objected to plaintiff's request for such records, and the court ruled that the objection was valid. Regarding termination records, plaintiff argues that the fact that defendant's response to a certain request for admission regarding other officers who failed the firearms test but were not terminated (in which response defendant stated there were two such officers) was inconsistent with what defendant claimed in its summary judgment motion, i.e., that at least three but fewer than seven officers failed the firearms test. Defendant takes the position that any inaccuracy in its response to the request for admission does not warrant sanctions. In the court's opinion, while defendant's discovery response may have been inaccurate, plaintiff was not prejudiced as a result. She learned through other discovery the identity of every other officer that defendant claimed in its summary judgment motion had failed the firearms test and yet not been terminated. Moreover, the fact that defendant's answer to this request for admission was inaccurate does not suggest that defendant's discovery responses were generally marked by a "lack of candor", as plaintiff contends.
Lastly, defendant explains that the evidence it presented to the court relating to Claude Winn at the time of its summary judgment motion was true and accurate: Claude Winn did fail to qualify with his weapon but, unlike plaintiff, was not terminated only because he requested and was granted a reasonable accommodation, claiming he could no longer perform his duties as a police officer due to a medical condition. Defendant states, and has presented supporting evidence, that since the time of the summary judgment motion, Winn was released by his medical provider to return to the police department. It thus appears that defendant did not mislead the court and, in the court's opinion, this recent change in Winn's circumstances does not change the fact that Winn was (and is) not a proper comparator.
Supplemental Submissions on Plaintiff's Retaliation Claim
As the court explained in its earlier opinion, plaintiff was terminated from her employment as a VA police officer for the ostensible reason that she had failed to qualify with her service weapon and thus failed to satisfy an indisputable condition of her continued employment. Plaintiff claimed that under applicable VA policy, she was entitled to additional training and to be retested with her weapon and yet defendant refused to allow her to be retested unless she would agree to dismiss a pending EEOC claim she had filed two years earlier. Defendant contended the offer to allow plaintiff to retest on the condition that she waive any and all pending, existing or future claims, was part of settlement discussions and as such, evidence of that offer was inadmissible under Federal Rule of Civil Procedure 408. The court indicated in its opinion that the potential viability of plaintiff's claim for retaliation depended on competent, admissible proof both that she was entitled under applicable VA policy to retest with her weapon and that the VA denied her request to be retested unless she dismissed her then-pending EEOC claim.
Plaintiff's evidence that she had a right to further training and to then retest following her initial failure to qualify is based primarily on a single document, which plaintiff offered as Exhibit J to her response to defendant's summary judgment motion. The document consists of one page. At the top appears the heading, "Firearm Program Requirements", and the document states, inter alia, as follows:
Standard Operation Procedures (SOP) for the Sonny Montgomery Veteran Affairs, Station 586, Jackson, MS 39216 5.11. Remedial Firearms Training: This is in-depth training to emphasize shooting fundamentals. Remedial training sessions are kept small or individualized to focus on ...