Bobby Kinser v. UMAR

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-00175-RJC-DCK. Copies to all parties and the district court. [999590393]. [14-1955]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1955

BOBBY J. KINSER,
Plaintiff - Appellant,
v.
UNITED METHODIST AGENCY FOR THE RETARDED - WESTERN NORTH
CAROLINA, INC., d/b/a UMAR,
Defendant - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:13-cv-00175-RJC-DCK)

Submitted:

April 28, 2015

Decided:

May 27, 2015

Before SHEDD, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Todd J. Combs, COMBS LAW, PLLC, Mooresville, North Carolina, for
Appellant. John D. Cole, Sr., Jonathan E. Schulz, NEXSEN PRUET,
PLLC, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bobby J. Kinser appeals the district court’s order granting
summary judgment to his former employer, United Methodist Agency
for the Retarded—Western North Carolina, Inc. (“UMAR”), as well
as granting UMAR’s motion to strike, in his suit alleging sex
and age discrimination, in violation of, respectively, Title VII
of

the

Civil

Rights

Act

of

1964

(“Title

VII”) 1 and

Discrimination in Employment Act of 1967 (“ADEA”). 2

the

Age

We affirm. 3

Kinser challenges the district court’s decision to strike
three affidavits.

We review for abuse of discretion a district

court’s decision to strike an affidavit submitted in support of
a party’s opposition to summary judgment; however, we review the
factual determinations underlying that decision for clear error.
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th
Cir. 1996).
Parties

must

disclose,

“without

awaiting

a

discovery

request, . . . the name . . . of each individual likely to have
discoverable information . . . that the disclosing party may use
1

42 U.S.C. §§ 2000e to 2000e-17 (2012).

2

29 U.S.C. §§ 621 to 634 (2012).

3

The district court also granted summary judgment to UMAR
on Kinser’s claim for wrongful discharge under North Carolina
employment law. Because Kinser does not challenge on appeal the
grant of summary judgment on his state-law claim, we do not
review it.
See In re Under Seal, 749 F.3d 276, 292 (4th Cir.
2014).

2

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to support its claims.”
(e)(1)(A).

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Fed. R. Civ. P. 26(a)(1)(A)(i), (C),

“If a party fails to . . . identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use
that . . . witness to supply evidence on a motion, . . . unless
the failure was substantially justified or is harmless.”
R. Civ. P. 37(c)(1).

Fed.

We have stated that, “[i]n determining

whether a party’s non-disclosure is substantially justified or
harmless, thereby excusing a disclosure violation, a district
court is guided by the . . . factors . . . [set forth in S.
States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d
592 (4th Cir. 2003)].”

Russell v. Absolute Collection Servs.,

Inc., 763 F.3d 385, 396-97 (4th Cir. 2014).
Our review of the record demonstrates that the district
court correctly determined that Kinser failed to timely disclose
one affiant’s identity.

See 6 James Wm. Moore et al., Moore’s

Federal Practice § 26.22(4)(a)(i) (3d ed. 2015).

We conclude,

as did the district court, that Kinser’s attempts to distinguish
the circumstances of his case from those in which an affidavit
has

been

properly

disregarded

are

unavailing.

See

Carr

v.

Deeds, 453 F.3d 593, 604 (4th Cir. 2006), abrogated on other
grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); Rambus, Inc. v.
Infineon Techs. AG, 145 F. Supp. 2d 721, 734-35 (E.D. Va. 2001),
cited with approval in S. States Rack & Fixture, Inc., 318 F.3d
at 596-97.
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The district court also struck two other affidavits offered
by Kinser because it determined that the affiants’ averments
were inconsistent with their prior deposition testimony.

At the

summary judgment stage, if an affidavit is inconsistent with the
affiant’s prior deposition testimony, courts may disregard the
affidavit pursuant to the sham-affidavit rule.

See Cleveland v.

Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); In re Family
Dollar

FLSA

Litig.,

637

F.3d

508,

512

(4th

Cir.

2011);

Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975-76 (4th Cir.
1990).
must

“[F]or the [sham-affidavit] rule . . . to apply, there
be

a

bona

fide

inconsistency”

averments and his deposition testimony.

between

an

affiant’s

Spriggs v. Diamond Auto

Glass, 242 F.3d 179, 185 n.7 (4th Cir. 2001).

We conclude that

the district court did not clearly err in finding that the two
affidavits at issue were inconsistent with the testimony of the
affiants.
merit

See id.; Rohrbough, 916 F.2d at 975-76.

are

determination

Kinser’s
that

the two affidavits.

the

challenges

to

inconsistencies

the

Also without

district

warranted

court’s

disregarding

See Stevenson v. City of Seat Pleasant, 743

F.3d 411, 422 (4th Cir. 2014); Malbon v. Pa. Millers Mut. Ins.
Co., 636 F.2d 936, 939 n.8 (4th Cir. 1980).

4

Accordingly, the

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district

court

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did

not

abuse

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its

discretion

by

striking

the

three affidavits. 4
Turning to Kinser’s Title VII and ADEA claims, we review de
novo

a

district

court’s

order

granting

summary

judgment.

Jacobs v. N.C. Admin. Office of the Cts., 780 F.3d 562, 565 n.1
(4th

Cir.

2015).

“A

district

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.’”

Id. at 568 (quoting Fed. R. Civ. P. 56(a)).

In determining whether a genuine issue of material fact exists,
“we

view

the

facts

and

all

justifiable

inferences

arising

therefrom in the light most favorable to . . . the nonmoving
party.”

Id.

at

565

n.1

However,

“[c]onclusory

or

(internal

quotation

speculative

marks

omitted).

allegations

do

not

suffice, nor does a mere scintilla of evidence in support of
[the nonmoving party’s] case.”

Thompson v. Potomac Elec. Power

Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks
omitted).
Kinser

presented

no

direct

evidence

of

age

or

gender

discrimination; we therefore analyze his claim under the burden-

4

The district court’s order also appears to have struck any
reference to an arrest of one of UMAR’s employees. Even if the
district court may have erred by striking these references, any
such error is harmless.

5

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shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973). 5

See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142 (2000); Mereish v. Walker, 359 F.3d 330,
334 (4th Cir. 2004).

To prevail under the McDonnell Douglas

framework, Kinser first must establish a prima facie case.

See

Gerner v. Cnty. of Chesterfield, 674 F.3d 264, 266 (4th Cir.
2012)

(Title

VII);

Hill v.

Lockheed

Martin

Logistics

Mgmt.,

Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc) (ADEA).

If

Kinser establishes a prima facie case, the burden of production
shifts

to

UMAR

to

articulate

reason for its actions.

a

legitimate,

nondiscriminatory

Hill, 354 F.3d at 285.

Once UMAR has

met its burden, Kinser must demonstrate that UMAR’s proffered
reason is a mere pretext for discrimination.

Id.

The district court correctly determined that Kinser failed
to

establish

a

prima

facie

case

under

the

ADEA

because

he

offered no evidence demonstrating that he had been replaced by a
substantially younger person.

See Hill, 354 F.3d at 285.

Nor,

with regard to his Title VII claim, did he demonstrate that a
similarly situated female employee was treated more favorably
than he was.

See Gerner, 674 F.3d at 266.

5

Even if Kinser had

On appeal, Kinser states that he presented direct evidence
of sex discrimination; however, he does not identify this
evidence, and he analyzes his claim, as do we, only under the
McDonnell Douglas framework.

6

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established
found

that

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a

prima

case,

failed

to

nondiscriminatory

reasons

for

See

U.S.

Reeves,

establish

he

facie

530

pretext

“by

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at

the

district

demonstrate
his

143

showing

UMAR’s

discharge

(providing
that

the

court

were

that

properly

legitimate,
pretextual.

plaintiff

employer’s

may

proffered

explanation is unworthy of credence” (internal quotation marks
omitted)).
Accordingly,
dispense

with

contentions

are

we

oral

affirm

the

argument

adequately

district

because

presented

in

court’s

the
the

facts

order.

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

7