Zhang v. Troy University (MAG+)

Filing 74

OPINION. Signed by Honorable Judge Myron H. Thompson on 8/23/12. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JUN ZHANG,
Plaintiff,
v.
TROY UNIVERSITY,
Defendant.

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CIVIL ACTION NO.
2:11cv770-MHT
(WO)

OPINION
In this lawsuit, plaintiff Jun Zhang claims that he
was discriminated in employment because of his national
origin.

This lawsuit is now before the court on the

recommendation of the United States Magistrate Judge that
defendant Troy University’s motion for summary judgment
should be granted.

Also before the court are Zhang’s

objections to the recommendation.

After an independent

and de novo review of the record, the court concludes that
Zhang’s objections should be overruled and the magistrate
judge’s recommendation adopted.

***

The court adds these comments.

With his objections,

Zhang is essentially seeking to re-litigate his case at
this point.

He has attached new evidence, including

letters from students and colleagues.

Many of these

letters were previously submitted in his response to the
summary-judgment motion, but have recently been notarized.
Zhang also seeks to identify a new comparator by pointing
to student evaluations of another professor.

However,

Zhang fails to establish that this new professor is a
valid comparator.

While the student evaluations seem to

indicate a lack of helpfulness by this new professor,
there is no reference to the new professor’s communication
skills

(or

lack

there

of)

in

any

of

the

students’

evaluations.
In any event, the filing of additional or new evidence
is

generally

not

recommendation.

appropriate

in

an

objection

to

a

See Williams v. McNeil, 557 F.3d 1287,

2

1292 (11th Cir. 2009) (“‘To require a district court to
consider

evidence

not

previously

presented

to

the

magistrate judge would effectively nullify the magistrate
judge’s consideration of the matter.’”) (quoting United
States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)),
cert. denied, ___ U.S. __, 129 S.Ct. 2747 (2009); McNeil,
557

F.3d

at

1292

(“‘Systemic

efficiencies

would

be

frustrated and the magistrate judge’s role reduced to that
of mere dressed rehearser.’”) (quoting Howell, 231 F.3d at
622).

Zhang’s newly retained counsel states that this new

evidence was previously requested by Zhang but never
provided by Troy University and that Troy University’s
mistake was only discovered by Zhang’s counsel recently.
However, Zhang has had sufficient discovery in this case,
and it was his responsibility to review the evidence and
move to compel any evidence that was not provided to him.
Zhang cannot reset the discovery clock simply because he
has

now

hired

an

attorney,

particularly

after

the

magistrate judge repeatedly advised Zhang to retain legal

3

counsel.

Moreover,

because

Zhang

had

sufficient

opportunity to conduct discovery in this case, (indeed,
the magistrate judge held several hearings on discovery
motions),

this

new

evidence

should

not

be

allowed.

Therefore, in the exercise of its discretion, the court
declines to allow the new evidence.
An appropriate judgment will be entered.
DONE, this the 23rd day of August, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE