Stevenson v. Potter

Filing 111

OPINION AND ORDER granting in part and denying in part 102 Motion for Leave to Supplement Record. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES STEVENSON,
Case No. 06-15182
Plaintiff,
Paul D. Borman
United States District Judge

v.
MEGAN J. BRENNAN, Postmaster
General of the United States,

David R. Grand
United States Magistrate Judge

Defendant.
______________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT RECORD
In this Title VII case, Plaintiff James Stevenson alleges that his employer, the
United States Postal Service,1 took various adverse employment actions against him
for discriminatory and retaliatory reasons over the course of several years.
This Court held a hearing on Defendant’s partial summary judgment motion
on February 24, 2017. Shortly thereafter, Plaintiff filed the Motion for Leave to
Supplement Record that is presently before the Court. In that Motion, Plaintiff
requests the Court’s leave to add three proposed exhibits to the record. For the
reasons stated below, the Court will grant Plaintiff’s Motion as to Proposed Exhibit

1

Nominally, the Defendant in this action is Megan J. Brennan, in her capacity as
Postmaster General of the United States. For practical purposes, however, the United
States Postal Service was Plaintiff’s employer, and so references to “Defendant” in
this opinion are made with that fact in mind.

103, but will deny Plaintiff’s Motion as to Proposed Exhibits 102 and 104.
BACKGROUND
Defendant moved for partial summary judgment in this matter on September
3, 2015. (ECF No. 68.) At the same time, Defendant filed an ex parte motion for
leave to file a 28-page brief (ECF No. 67), which the Court granted (ECF No. 69).
After the Court struck Plaintiff’s initial Response for having incorrect type size (ECF
No. 76), Plaintiff filed a revised Response on October 27, 2015 (ECF No. 77). The
parties stipulated to extend Defendant’s time to file its Reply (ECF No. 79), and
Defendant timely filed the Reply (ECF No. 81) on November 16, once again with
the Court’s leave to file excess pages (ECF No. 82).
Among the four exhibits to Defendant’s Reply were two sworn Declarations.
(ECF No. 81, Ex. 34, Declaration of Nicole Collins-Earley; ECF No. 81, Ex. 36,
Declaration of Michael Greene.) Plaintiff filed objections to these Declarations on
February 23, 2016. (ECF Nos. 85, 86.) Six days later, this Court directed Defendant
to file a response to Plaintiff’s objections, “responding fully and separately to each
individual paragraph of each Objection, including specific discussion of the issues
previously raised in the summary judgment briefing to which the new Affidavit
material appropriately responds.” (ECF No. 87.) Defendant complied in a timely
fashion, filing its Statement of Response on March 11, 2016. (ECF No. 88.)
Plaintiff filed a 143-page reply to Defendant’s Statement of Response on
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March 24, 2016. (ECF No. 89.) Defendant moved to strike the reply, as it was neither
ordered by the Court nor permitted by court rule; that Motion to Strike saw a full
round of briefing, ultimately including a motion by Plaintiff for leave to file a surreply. (ECF Nos. 90-93.) On December 1, 2016, the Court granted Defendant’s
Motion to Strike, struck Plaintiff’s unauthorized reply to Defendant’s Statement of
Response, and stated in conclusion that “[t]he summary judgment briefing in this
case is closed and no further filings will be accepted by the Court.” (ECF No. 98.)
On February 23, 2017, the Court issued an Opinion and Order sustaining in
part and overruling in part Plaintiff’s objections to the Collins-Earley and Greene
Declarations. (ECF No. 100.) The following day, the Court conducted a hearing on
Defendant’s motion for partial summary judgment.
On March 9, 2017, just under two weeks after Defendant’s partial summary
judgment motion was taken under advisement, Plaintiff submitted the instant Motion
for Leave to Supplement Record. (ECF No. 102, Pl.’s Mot.) Defendant filed a
Response on March 21, 2017. (ECF No. 105, Def.’s Resp.) Plaintiff filed a Reply on
March 24, 2017. (ECF No. 107, Pl.’s Reply.) Having determined that oral argument
will not assist in resolving this Motion, the Court will decide the matter on the briefs.
See E.D. Mich. L. R. 7.1(f)(2).
DISCUSSION
In support of his Motion for Leave to Supplement Record, Plaintiff cites three
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sub-provisions of Federal Rule of Civil Procedure 56, which governs motions for
summary judgment generally. First, Rule 56(c)(3) provides that in adjudicating a
motion for summary judgment, a court is only required to consider materials cited
by the parties, “but it may consider other materials in the record” as well. Second,
Rule 56(d)(3) provides that when “a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential to justify its opposition
[to a summary judgment motion], the court may” defer or deny the motion, allow
time for the collection of affidavits or the taking of discovery, or “issue any other
appropriate order.” Third, Rule 56(e) provides:
If a party fails to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by Rule 56(c),2 the
court may
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed--show that the movant is
entitled to it; or

2

As the above-quoted language of Rule 56(e) suggests, the broad thrust of Rule
56(c) is that arguments regarding factual disputes must generally be grounded in the
summary judgment record. Specifically, Rule 56(c)(1) provides that “[a] party
asserting that a fact cannot be or is genuinely disputed must support the assertion”
in one of two ways: either by “citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials,” or by “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.”
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(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e)(1)-(4).
Under these sub-provisions of Rule 56, Plaintiff argues, he should be allowed
to supplement the summary judgment record with three new exhibits. Proposed
Exhibit 102 is a “Back Pay Report” covering pay periods in 2009 and 2010, which
Plaintiff represents he has submitted in response to questions posed by the Court at
the February 24, 2017 hearing. (Pl.’s Mot. Ex. 102, Back Pay Report.) Proposed
Exhibit 103 is a May 2009 EEO Investigative Affidavit authored by Chynita L.
Evans, which Plaintiff represents was cited in his summary judgment briefing and at
the hearing, but inadvertently omitted from the exhibit of which it was supposed to
be a part. (Pl.’s Mot. Ex. 103, Evans Affidavit.) Proposed Exhibit 104 is a February
2011 decision by the Michigan Employment Security Board of Review, apparently
concerning whether Plaintiff was disqualified from receiving state unemployment
benefits from July 2009 because his departure from the Jefferson Station for schemetraining failure was voluntary, and which Plaintiff represents should now be added
to the record because Defendant raised the issue of Plaintiff’s efforts to complete his
scheme training for the first time at the February 24, 2017 hearing. (Pl.’s Mot. Ex.
104, Board of Review Decision.)
The Court notes as a threshold matter that two of the three sub-provisions of
Rule 56 that Plaintiff has cited in his Motion are irrelevant to the situation now before
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the Court. To begin with, Rule 56(c)(3) merely provides that while a court is required
to consider all cited record materials in evaluating a summary judgment motion, it
may also consider other evidence already in the record—the sub-provision does not,
in fact, offer any guidance as to when a court should expand a summary judgment
record after the summary judgment has been fully briefed and argued.
Second, Rule 56(d)(3) confers discretion on a court to “issue any appropriate
order” only when “a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition” to a summary
judgment motion. Not only has Plaintiff failed to file such an affidavit or declaration,
he makes clear in his Motion that all three of his proposed new exhibits were
previously available to him. He acknowledges that the Back Pay Report and the
Board of Review Decision were among the documents that Defendant produced in
discovery. (See Pl.’s Mot. ¶¶ 5, 13.) The previous availability of the Evans Affidavit
to Plaintiff is clear from his representation that he “inadvertently omitted” it from
the exhibits to his response to Defendant’s partial summary judgment motion (Pl.’s
Mot. ¶ 7), and from the fact that he cited it in the response itself (see ECF No. 77 at
20, Pg ID 2285). Rule 56(d)(3) provides no assistance to Plaintiff here.
It follows that if Plaintiff’s request for leave to expand the record has any
justification in the sub-provisions of Rule 56 that he has cited, it must be in Rule
56(e). That Rule, as noted above, provides that “[i]f a party fails to properly support
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an assertion of fact or fails to properly address another party's assertion of fact,” the
court may take certain remedial actions, which include “give an opportunity to
properly support or address the fact” and “issue any other appropriate order.” Fed.
R. Civ. P. 56(e)(1), (4).
The Court will therefore analyze each Proposed Exhibit to determine whether
it is necessary to reinforce any factual assertion that has not been “properly
support[ed]” under Rule 56(e). For the reasons set forth below, the Court will grant
Plaintiff’s Motion for Leave to Supplement Record as to the Evans Affidavit
(Proposed Exhibit 103), but will deny Plaintiff’s Motion as to the Back Pay Report
(Proposed Exhibit 102) and the Board of Review Decision (Proposed Exhibit 104).
Proposed Exhibit 102: Back Pay Report
Plaintiff argues that at the February 24, 2017 hearing on Defendant’s motion
for partial summary judgment, “[t]he Court asked whether Plaintiff received back
pay, mileage and other reimbursement for excessing.” (Pl.’s Mot. ¶ 3.) It is unclear
what in the record of the February 24, 2017 hearing this general statement refers to.
The Court does not, in any case, perceive a failure of proof as to any factual assertion
by either party on this topic that requires the addition of the Back Pay Records to the
record as a remedy. In fact, Plaintiff himself acknowledges that “[r]ecords pertaining
to

this

grievance

(Grievance

No.

J06C-4J-0928725

entitled

“Improper

excessing/removal from bid award”) have been filed” as exhibits to his response in
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opposition to Defendant’s partial summary judgment motion. (Pl.’s Mot. ¶ 3 (citing
ECF No. 77 Exs. 55, 77).)
In his Reply in support of his Motion for Leave to Supplemental Record,
Plaintiff does not provide any more specific indications as to how the Back Pay
Report fills in any evidentiary gap identified by the Court at the February 24, 2017
hearing. He does, however, articulate an additional reason he believes the Back Pay
Report should be added to record, arguing that they “also address Defendant’s
statements during the motion hearing that [Plaintiff] was not excessed.” (Pl.’s Reply
at 1, Pg ID 4337.) He then proceeds to argue at length that the Back Pay Report, in
tandem with other evidence already in the record, refutes any such claim by
Defendant. (See id. at 2-4, Pg ID 4338-39.) The Court finds that there is adequate
evidence in the record on this issue, and also sees no reason that any additional
evidence on it could not have been proffered in the parties’ summary judgment
briefing. The Court will deny Plaintiff’s Motion for Leave to Supplement Record as
to Proposed Exhibit 102.
Proposed Exhibit 103: Evans Affidavit
Plaintiff argues that the Evans Affidavit should be added to the record because
he inadvertently omitted it from Exhibit 11 to his response in opposition to
Defendant’s partial summary judgment motion. The Court agrees with Plaintiff that
there is support for this claim in two respects. First, Plaintiff cited the Evans
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Affidavit in his response, amid a discussion of his termination from his position at
the Jefferson Station for scheme training failure:
The USPS’s “Employee and Labor Relations Manual and Handbook
PO – 402” or “ELM”, which is quoted in the separation letter, does not
mandate discharge for scheme failure: “Trainees who fail the final
qualification examination are either disqualified, reassigned, or
discharged by management, as the circumstances warrant, consistent
with the provisions of the National Agreement.” Ex. 12, Notice of
Separation 5/18/09 (citing ELM Handbook PO – 402, 247 Scheme
Examination Failures). This is admitted by the USPS’s station manager.
Ex. 11, Evans Aff. 5/4/09, ¶12 (Upon scheme failure, “management
would have to assess what action to take. . . . I do not know of any
requirement that an employee would be terminated . . .”).
(ECF No. 77 at 19-20, Pg ID 2284-85 (emphasis added).) Plaintiff had identified
Evans as a station manager at the Jefferson Station earlier in the response brief. (See
id. at 6-7, Pg ID 2271-72.) The quotation attributed to Paragraph 12 of the Evans
Affidavit in the portion of the response quoted above, moreover, matches language
in Paragraph 12 of the Evans Affidavit that Plaintiff seeks to admit as Proposed
Exhibit 103. (See Pl.’s Mot. Ex. 103, Evans Affidavit at 4, Pg ID 4181 (“At that
point management would have to assess what action to take. I do not know of any
requirement that an employee would be terminated, although I believe that could
possibly be one outcome based on the individual circumstances. Probably more
likely the employee would be reassigned to a position without the scheme.”). Lastly,
Plaintiff is correct to assert that his counsel cited the Evans Affidavit—indeed, cited
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Paragraph 12 of the Evans Affidavit specifically—at the February 24, 2017 hearing.
Defendant counters that Plaintiff’s Proposed Exhibit 103 adds nothing to the
record, largely because it is consistent with a different EEO Investigative Affidavit
sworn to by Evans that Defendant included among the exhibits to its partial summary
judgment motion. This does not, however, suffice by itself to establish that the Evans
Affidavit submitted by Plaintiff as Proposed Exhibit 103 is wholly irrelevant to the
issues raised in the summary judgment briefs. The Court concludes that Plaintiff’s
apparently accidental omission of the Evans Affidavit, despite his citation to it in the
briefing and at the hearing, justifies a finding that the absence of that document
constitutes a “fail[ure] to properly support an assertion of fact” under Rule 56(e).
Because (and only because) it is evident that Plaintiff intended to include the Evans
Affidavit in the record before the Court closed it on December 1, 2016, the Court
will grant Plaintiff’s Motion for Leave to Supplement Record as to Plaintiff’s
Proposed Exhibit 103.
Proposed Exhibit 104: Board of Review Decision
Finally, Plaintiff argues in his Motion that the Court should allow the Board
of Review Decision into the record because “[d]uring oral argument, Defendant’s
counsel alluded to [Plaintiff’s] job performance and effort to succeed at scheme
training.” (Pl.’s Mot. ¶ 11.) Plaintiff elaborates in his Reply that, for the first time at
that hearing, “Defendant questioned [Plaintiff’s] efforts during scheme
10

training. . . . This was not mentioned in Defendant’s partial summary judgment
motion.” (Pl.’s Reply at 6, Pg ID 4342.)
The Court rejects this argument. In discussing Plaintiff’s scheme training
failure in its motion for partial summary judgment, Defendant stated as follows:
When Plaintiff was reassigned to the Jefferson station, he was required
to pass scheme training for his new position and was informed that
failure to pass could result in removal. Scheme training requires the
clerk to memorize certain addresses and routes to increase their
efficiency at sorting mail. Plaintiff received over 18 hours of training.
Plaintiff waited until the last day he could take his exam, April 22,
2009, and got 26%; 95% is required to pass. On May 18, 2009, Plaintiff
was issued a Notice of Separation for scheme failure. After receiving
his Notice, his supervisor had him distribute live mail to help him learn
the scheme and keep his job. Plaintiff was given 30 additional days to
pass his exam and avoid removal, but he failed to do so.
(ECF No. 68 at 6, Pg ID 547 (citations omitted).) In light of Defendant’s references
to the amount of training Plaintiff received, his waiting until the last day possible to
take the exam, the discrepancy between his score and the minimum passing score,
and the additional time he received to pass the exam, Plaintiff has no colorable
argument that he was surprised by Defendant’s questioning his level of effort in
preparing for the exam. Plaintiff disputes several of these facts, and this Court will
evaluate those disputes to the extent that their resolution is necessary to resolve
Defendant’s partial summary judgment motion. The only issue presently is whether
the issue of Plaintiff’s effort level in his scheme training at the Jefferson Station was
11

raised in some way in Defendant’s motion for partial summary judgment. It is clear
to this Court that it was.
Accordingly, the Court concludes that there is no evidentiary gap which
admission of the Board of Review Decision into the record is necessary to remedy.
For that reason, the Court will deny Plaintiff’s Motion for Leave to Supplement
Record as to Proposed Exhibit 104.
CONCLUSION
The Court unequivocally closed summary judgment briefing in this matter on
December 1, 2016. (ECF No. 98.) In light of that, and because Plaintiff has not
demonstrated that Proposed Exhibits 102 and 104 should be added to the record
under Rule 56(e), the Court hereby DENIES Plaintiff’s Motion for Leave to
Supplement Record as to those two exhibits. Because there are clear indications that
Plaintiff intended to include the Evans Affidavit in the record but inadvertently failed
to do so, however, the Court hereby GRANTS Plaintiff’s Motion for Leave to
Supplement Record as to Proposed Exhibit 103. The Court will consider Proposed
Exhibit 103 in adjudicating Defendant’s partial summary judgment motion.
IT IS SO ORDERED.

Dated: March 12, 2018

s/Paul D. Borman
Paul D. Borman
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on March 12, 2018.
s/D. Tofil
Deborah Tofil, Case Manager

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