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Grooms v. Dolgencorp, LLC

United States District Court, N.D. Mississippi, Aberdeen Division

June 3, 2019

SAMUEL J. GROOMS PLAINTIFF
v.
DOLGENCORP, LLC, doing business as, DOLLAR GENERAL DEFENDANT

          ORDER AND MEMORANDUM OPINION

          SHARION AYCOCK, UNITED STATES DISTRICT JUDGE

         Samuel Grooms filed his Complaint in this Court on November 15, 2017 against his former employer Dolgencorp LLC, doing business as Dollar General, under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), asserting that the Defendant's refusal to return the Plaintiff to his employment is a violation of federal law under USERRA and state law under Mississippi Code Section 33-1-15. Now before the Court is the Defendant's Motion [44] for Summary Judgment and the Plaintiff's Motion to Strike [49] certain exhibits to the Defendant's Memorandum in Support of summary judgment [45]. The issues are fully briefed and ripe for review.

         Motion to Strike

         Before addressing the Defendant's Motion [44] for Summary Judgment, the Court must first determine whether it may consider the two declarations offered by the Defendant in support of its Motion for Summary Judgment. See [44-1, 44-7]. Pursuant to Federal Rules of Civil Procedure 26(a)(A)(i) the Plaintiff moves to strike the Declarations of Angie Roy [44-1] and Diana Bejarano [44-7]. The Plaintiff asserts that the Defendant failed to identify Roy and Bejarano in its Initial Disclosures and the Plaintiff was not given the opportunity to depose these individuals during the discovery period.

         Rule 26(a)(A)(i) provides, in pertinent part:

Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.]

         In the Defendant's Initial Disclosures, the Defendant stated that it may call a representative of the Human Resources Department to testify “regarding relevant company policies and procedures, particularly those policies and procedures related to leaves of absences by employees for military service.” Also in its Initial Disclosures, the Defendant stated that a representative from Matrix would testify “regarding Matrix's records and the absence of any record of communications with Plaintiff regarding his military leave.” The Defendant argues that the Plaintiff cannot be surprised by Roy or Bejarano's declarations, because both declarations address precisely the matter described in the Defendant's Initial Disclosures. The Defendant also notes that the Plaintiff chose not to pursue a Federal Rule of Civil Procedure 30(b)(6) deposition. Finally, the Defendant argues that the Plaintiff failed to identify any specific prejudice resulting from the use of representative designations instead of individual names.

         Federal Rule of Civil Procedure 37 provides “if a party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1); see also Texas A&M Research Foundation v. Magna Transp., Inc., 338 F.3d 394, 401 (5th Cir. 2003). In evaluating whether a violation of Rule 26 is harmless the Fifth Circuit has identified four factors: “(1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's failure to disclose.” Id. at 402.

         The evidence provided by the declarations outline the procedures of two corporate entities. Roy's declaration describes her job duties as the Director of Human Resources Shared Services, the employment statistics of Dollar General, and a brief overview of Dollar General's military leave policy. The evidence contained in Roy's declaration is not dispositive and likely unimportant to any potentially disputed facts in this case. Bejarano's deposition discusses when she began her job as store manager and describes the first time she met the Plaintiff. While minimal, Bejarano's deposition does provide some factual information, but the evidence is not dispositive and would likely have little effect on any potentially disputed facts of this case. Due to the nature of the evidence, the Court finds that any potential prejudice to the Plaintiff is slight. Next, the potential prejudice to the Plaintiff might be cured by allowing the Plaintiff to depose Bejarano. However, the Court finds such allowance improper. As explained by the Defendant, the Defendant did not fail to disclose that a corporate representative would testify to the information contained in the declarations, but rather failed to disclose the individual identities of the corporate representatives.[1]Accordingly, the Plaintiff's Motion [49] to Strike is denied.

         Factual and Procedural Background

         In May 2015, a few months before his high school graduation, the Plaintiff joined the Army National Guard. In September 2016, Dollar General hired the Plaintiff as a lead sales associate, and the Plaintiff became an assistant manager in February 2017. In April 2017, the Plaintiff was called to active duty at Fort Irwin, California for a period of approximately six weeks. According to the Defendant, the Dollar General employee handbook instructs employees to notify their manager of the need to take leave and to contact Matrix Absence Manager (“Matrix”), the third-party administrator Dollar General uses to handle its leave of absence management, to report their leave. It is undisputed that the Plaintiff did not contact Matrix before leaving but did advise the store manager of his need for leave. Matt Mahan, the district manager, confirmed that the store manager notified him of the Plaintiff's military leave. The Plaintiff claims he did not contact Matrix prior to leaving because he was not told to do so. Mahan claims that the store manager told the Plaintiff to contact Matrix, but it is unclear whether the store manager did so.

         While the Plaintiff was deployed, the store manager transferred to a different Dollar General store. Kathy Greer, who had never met the Plaintiff, then took over as the store manager at the Dollar General store where the Plaintiff worked.

         Before the Plaintiff returned from leave, Dollar General's Leave Administration and Regional Human Resources informed Mahan that he could, and should, file the Plaintiff's request for leave with Matrix on his behalf. Mahan did not do so. When the Plaintiff returned from leave in June 2017, Mahan and the Plaintiff spoke over the phone regarding the Plaintiff's return from leave and his interest in returning to work. Mahan told the Plaintiff to contact Matrix. According to the Plaintiff, he called the number Mahan gave him and Matrix advised him that he could return to work in approximately two weeks. Conversely, the Defendant asserts the Plaintiff's phone records conclusively establish that the Plaintiff ...


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