Terry Prideaux v. Tyson Foods Inc

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Terry Prideaux v. Tyson Foods Inc

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Case: 09-60469

Document: 00511177888

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Date Filed: 07/19/2010

IN THE UNITED STATES COURT OF APPEALS F O R THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 19, 2010 N o . 09-60469 S u m m a r y Calendar Lyle W. Cayce Clerk

T E R R Y S. PRIDEAUX P la in t iff - Appellant v. T Y S O N FOODS, INC D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Southern District of Mississippi U S D C No. 3:08-cv-00042

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* T e r r y Prideaux filed suit against his former employer, Tyson Foods, Inc. (" T y s o n " ) alleging retaliation under the Family Medical Leave Act of 1993, 29 U .S .C . § 2601, et seq. ("FMLA"). The district court conducted a jury trial, and the ju r y returned a verdict in Tyson's favor. Prideaux appeals evidentiary rulings by t h e district court and its refusal to order judicial estoppel. We AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 09-60469 I . FACTUAL AND PROCEDURAL HISTORY Prideaux became an employee of Tyson in September 2003, when Tyson a c q u ir e d the Carthage, Mississippi facility, where Prideaux had been employed s in c e May 1999. In October 2004, Tyson transferred Prideaux to its Pine Bluff, A r k a n s a s facility to serve as that plant's human resources manager. In March 2005, Tyson received complaints against Prideaux from three fe m a le employees alleging sexual harassment at its Pine Bluff facility. In D e c e m b e r 2006, those employees filed suit against Tyson (the "Pine Bluff lit ig a t io n " ) claiming that they had been sexually harassed by Prideaux. In its a n s w e r , Tyson denied the allegations. The parties reached a settlement in O c t o b e r 2007. In March 2006, Tyson placed Prideaux on a two-week paid suspension. It c o n d u c t e d an internal investigation into the allegations by the female employees a n d determined that Prideaux had violated the terms of its Harassment and D is c r im in a t io n Policy. In April 2006, Tyson issued a written reprimand, s u s p e n d e d Prideaux's annual bonus, and warned him that any additional v io la t io n s would result in further disciplinary action, up to and including t e r m in a t io n of his employment. In September 2006, Prideaux was promoted to the role of complex-wide h u m a n resources manager at the Carthage facility. A few weeks after his t r a n s f e r back to Carthage, Prideaux advised Tyson that he believed that the C a r t h a g e facility was not implementing its FMLA policy correctly. Tyson c o n d u c t e d an investigation at the Carthage facility in late 2006, and agreed that it s Carthage facility had not been properly tracking

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No. 09-60469 some employees' FMLA policy absences. Tyson then corrected the facility's t r a c k in g methodology, and gave Prideaux an additional raise. Shortly thereafter, Prideaux told his boss, John Dilmore, that Tyson n e e d e d to do the right thing and pay the employees whose FMLA rights had b e e n violated what was owed to them. Prideaux claims that the following week D ilm o r e told him that the answer was no; that it would cost too much money and t h a t Tyson would rather fight each case. Prideaux voiced his objection to such a n approach. In March 2007, Tyson received another internal complaint against P r id e a u x . A security guard at the Carthage plant reported that she had observed P r id e a u x kissing the hand of another female security guard. Laura Brewster, a m e m b e r of Tyson's corporate human resources department, investigated the c o m p la in t . During the investigation, the security guard who made the initial c o m p la in t informed Brewster, that she "didn't see nothing." The security guard w h o s e hand Prideaux kissed stated that she was not offended by his actions. B rew ster interviewed Prideaux regarding the allegations and Prideaux admitted t o engaging in the alleged behavior. Brewster reported her findings to her s u p e r v is o r s in Tyson's management, who then decided to terminate Prideaux's e m p lo y m e n t . After being advised of this decision, Prideaux voluntarily resigned fr o m Tyson on March 20, 2007. P r id e a u x was then hired by Central Industries, Inc. in its Forest, M is s is s ip p i facility. In December 2008, Tyson acquired Central Industries, Inc. A fte r this acquisition, Tyson eliminated and consolidated several positions, i n c lu d in g the Safety and Environmental Manager position held by Prideaux.

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No. 09-60469 T y s o n offered Prideaux the opportunity to apply for other jobs at Central I n d u s t r ie s . He did so, but was not hired. P r id e a u x filed suit on January 18, 2008, and later amended his complaint t o state only a claim for retaliation under the FMLA. On May 18-19, 2009, the d is t r ic t court conducted a trial and the jury returned a verdict in Tyson's favor. P r id e a u x timely appealed. I I . DISCUSSION Prideaux claims that the district court erred in rendering various e v id e n t ia r y rulings and declining to impose judicial estoppel. We review e v id e n t ia r y rulings and judicial estoppel determinations for abuse of discretion. J e th r o e v. Omnova Solutions, Inc., 412 F.3d 598, 600 (5th Cir. 2005); Seidman v . Am. Airlines, Inc., 923 F.2d 1134, 1138-39 (5th Cir. 1991). "[W]e will reverse a judgment on the basis of evidentiary rulings only where the challenged ruling a ffe c t s a substantial right of a party." Jones v. Benefit Trust Life Ins. Co., 800 F .2 d 1397, 1400 (5th Cir. 1986); FED. R. CIV. P. 61. A. Judicial Estoppel P r id e a u x argues that in the present case Tyson has contradicted its prior r e p r e s e n t a t io n s in the Pine Bluff litigation by alleging that it had knowledge t h a t Prideaux had actually harassed the three female employees. He asserts that t h e district court abused its discretion in failing to judicially estop Tyson from a s s e r t in g that Prideaux violated company policy by harassing three female e m p lo y e e s at its Pine Bluff facility. J u d ic ia l estoppel is "a common law doctrine by which a party who has a s s u m e d one position in his pleadings may be estopped from assuming an in c o n s is t e n t position." Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th Cir.

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No. 09-60469 2 0 0 8 ) (quoting Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2 0 0 3 )). The purpose of the doctrine is to "protect [ ] the essential integrity of the ju d ic ia l process" by reducing the "risk of inconsistent court determinations." Id. (q u o tin g New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001)) (internal q u o t a t io n s omitted). We have recognized at least two requirements to invoke the d o c t r in e : (1) the party's position must be clearly inconsistent with its previous o n e , and (2) the previous court must have accepted the party's earlier position. I d . (citations omitted). A third consideration is "whether the party seeking to a s s e r t an inconsistent position would derive an unfair advantage or impose an u n fa ir detriment on the opposing party if not estopped." New Hampshire, 532 U .S . at 751. Prideaux fails to establish the second requirement, that the court in the P in e Bluff litigation accepted the position advanced by Tyson. Prideaux argues t h a t when the parties in the Pine Bluff litigation arrived at a settlement a g r e e m e n t and moved to dismiss the case, the order of dismissal entered by the d is t r ic t court in that case constituted judicial acceptance of Tyson's position that P r id e a u x had committed no wrongdoing. But numerous courts in this circuit and o t h e r s have held that settlements in ordinary civil cases do not require the ju d ic ia l acceptance of either party's position, and judicial estoppel is therefore n o t warranted in a later proceeding. See Rowan Cos., Inc. v. Acadian Ambulance S e r v ., Inc., No. H-05-3400, 2008 WL 1989791, at *5 (S.D. Tex. May 2, 2008) (" B e c a u s e [the parties] settled their differences prior to trial, the court did not a n d was not required to make a determination. . . . Judicial estoppel is not w a r r a n te d here."); In Re Hunt, 124 B.R. 200, 207 (N.D. Tex. 1991) ("[J]udicial e s t o p p e l does not apply in the case of a settlement. This is because the position

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No. 09-60469 t a k e n in the initial proceeding cannot be viewed as having been successfully a s s e r t e d ." ); see also Fleet Nat'l Bank v. Gray, 375 F.3d 51, 60-61 (1st Cir. 2004) (p a r t y did not "succeed" in prior litigation if it was settled before any substantive p r o c e e d in g s began); Bates v. Long Island R.R. Co., 997 F.2d 1028, 1038 (2d Cir. 1 9 9 3 ) (judicial estoppel is inapplicable when a prior position was asserted in case t h a t resulted in settlement); Lowery v. Stovall, 92 F.3d 219, 225 (4th Cir. 1996) (" [J ]u d ic ia l estoppel does not apply to the settlement of an ordinary civil suit."); B la n to n v. Invo Alloys Int'l, Inc., 108 F.3d 104, 110 (6th Cir. 1997) (judicial e s t o p p e l is inapplicable when prior position was asserted in case that resulted in settlement). I n the Pine Bluff litigation, the only events that transpired before the s e t t le m e n t were the filing of the initial pleadings by the parties. The parties filed n o pre-trial motions and the court did not conduct a hearing or otherwise accept s w o r n testimony. As such, Tyson was not successful on any prior position and t h e r e was no "judicial acceptance." Thus, the district court here did not abuse its d is c r e t io n by concluding that the dismissal of the Pine Bluff litigation based on t h e settlement agreement reached by the parties did not warrant judicial e s to p p e l. B. Motion to Compel I n May 2008, the district court entered a scheduling order setting the d is c o v e r y deadline for December 8, 2008. On November 25, 2008, Prideaux filed a notice to take Tyson's deposition under Rule 30(b)(6) on the last day of d is c o v e r y . Tyson proffered John Dilmore to speak on its behalf. During the d e p o s it io n , Prideaux 's counsel questioned Dilmore on matters to which he could n o t provide a satisfactory answer. On December 19, 2008, Prideaux filed a

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No. 09-60469 M o t io n to Compel requesting that the district court compel Tyson to proffer a p r o p e r representative. The district court denied the motion as untimely. Rule 7.2(B)(2) of the Uniform Local Rules of the Northern and Southern D is t r ic t s of Mississippi provides that all "discovery motions must be filed s u ffic ie n t ly in advance of the discovery deadline so as not to affect the deadline." U NIF. LOC. R. 7.2(B)(2). Prideaux suggests no good cause for waiting until the la s t month of the seven-month discovery period to begin the process of taking d e p o s i t io n s , thus necessitating the filing of the Motion to Compel after the d is c o v e r y deadline. The district court did not abuse its discretion in denying the M o t io n to Compel. C. Motion for Leave to Take Trial Testimony Telephonically I n May 2009, just two weeks before trial, Prideaux filed a Motion for Leave t o Take the Trial Testimony of Laura Brewster Telephonically. Prideaux a s s e r t e d that Brewster, Tyson's investigator who made an initial determination o n whether Prideaux violated Tyson's sexual harassment policy at its Carthage lo c a t io n , was to be one of his primary witnesses. Brewster resided in Springdale, A r k a n s a s at the time of trial, which is over 100 miles outside the jurisdiction of t h e Southern District of Mississippi, and she was no longer employed by Tyson. P r id e a u x was therefore unable to subpoena Brewster to testify at trial. The d is t r ic t court denied the motion. T h e Federal Rules of Civil Procedure require that witness testimony be p r e s e n t e d live, in open court. FED. R. CIV. P. 43(a). An exception may be made w h e r e the requesting party can establish "good cause in compelling c ir c u m s t a n c e s . . . ." Id. The Advisory Committee Notes state that a party who c o u ld "reasonably foresee the circumstances offered to justify the transmission

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No. 09-60469 o f testimony" will have difficulty in establishing good cause or compelling c ir c u m s t a n c e s . See FED. R. CIV. P. 43(a) advisory committee's note. With respect t o this standard, Prideaux argues only that Brewster was a "primary witness" a n d that he had difficulty locating her. On the grounds that Prideaux had failed t o show good cause and could not demonstrate compelling circumstances, we c o n c lu d e that the district court did not abuse its discretion in denying the motion t o take trial testimony telephonically. D. Motion to Amend the Pre-Trial Order F o u r days before trial, Prideaux filed a Motion to Amend the Pre-Trial O r d e r to add Tyson employee Brian Manley as a witness. Manley would have o f fe r e d testimony that he was present when Brewster informed Prideaux that s h e had found there was no merit to the claim of sexual harassment in Carthage. P r id e a u x asserts that Manley had inadvertently not been included on the w it n e s s list. Although Manley had been identified by Tyson in its pre-discovery d is c lo s u r e s , Prideaux failed to reference Manley in his initial disclosures as an in d iv id u a l likely to have discoverable information relevant to his claims and did n o t list Manley in his response to Tyson's interrogatories as an individual likely t o have knowledge of facts and circumstances related to his claims. T h e district court denied the motion, but allowed Prideaux to call Manley a s a rebuttal witness if testimony offered during Tyson's case-in-chief warranted h is testimony. The district court did not abuse its discretion in denying P r id e a u x 's attempt to add an improperly noticed witness on the eve of trial. See F ED. R. CIV. P. 37(c)(1). E. Motion in Limine Regarding Testimony of Steven W. Patrick

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No. 09-60469 O n the second day of trial, Tyson requested to call Steven W. Patrick to p r e s e n t testimony to rebut Prideaux's claim that he had been retaliated against w it h respect to his termination after Tyson acquired Central Industries. Patrick h a d not been listed as a witness in the pre-trial order, and Prideaux moved to e x c lu d e his testimony on that basis. Tyson responded, somewhat disingenuosly, t h a t because the court had not ruled on its motion in limine to exclude evidence r e g a r d in g Prideaux's termination from Central Industries, it did not know until t h e first day of trial that the termination would be a contested issue. The district c o u r t denied Prideaux's motion in limine. T h e district court's ruling, however, is consistent with its treatment of P r id e a u x 's attempt to present testimony from Manley without having provided p r o p e r notice: the court allowed the improperly-noticed witness to be called only a s a rebuttal witness if testimony offered during the opposing party's c a s e -in -c h ie f warranted such testimony. The district court did not abuse its d is c r e t io n in allowing Tyson to elicit rebuttal testimony from Patrick. F. Tyson's Motion in Limine Regarding Pine Bluff Litigation A fte r the district court's judicial estoppel ruling, Prideaux persisted in seeking to introduce evidence that Tyson did not actually believe that he had c o m m it t e d the alleged sexual harassment at the Pine Bluff facility. That e v id e n c e included Tyson's pleadings in the Pine Bluff lawsuit and testimony fr o m Paul Fletcher, Prideaux's supervisor at the Pine Bluff facility at the time o f the alleged sexual harassment. Tyson filed a motion in limine seeking to p r e v e n t Prideaux from presenting such evidence, asserting that it would be la r g e ly irrelevant and prejudicial. Tyson argued that the sole issue in the case w a s whether Tyson terminated Prideaux's employment in retaliation for

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No. 09-60469 r e p o r t in g alleged violations of the FMLA, or whether it terminated Prideaux b a s e d on his inappropriate conduct at the Carthage facility after being p r e v io u s ly disciplined for similar behavior at the Pine Bluff facility. Thus, Tyson c o n t e n d e d , the Pine Bluff events were relevant only to show that Tyson undisputedly issued Prideaux a written disciplinary action and a warning that a n y further similar actions would result in his termination; whether Tyson c o n d u c t e d a proper investigation of the Pine Bluff incident or imposed a p p r o p r ia te disciplinary action would be irrelevant. The district court granted the motion in limine on the grounds that the P in e Bluff incident was a collateral issue and "not the case that the jury should b e focusing on." Having carefully reviewed the record, we conclude that the Pine B lu ff evidence had--at best--marginal relevance, and the district court therefore d id not abuse its discretion. III. CONCLUSION The district court's evidentiary rulings were not abuses of discretion. We t h e r e fo r e AFFIRM the judgment of the district court.

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