TAYLOR v. AMCOR FLEXIBLES
Filing
92
OPINION. Signed by Judge Noel L. Hillman on 6/29/2011. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALONZO TAYLOR,
Plaintiff,
Civil No. 07-3477-NLH
v.
AMCOR FLEXIBLES INC.,
Defendant.
OPINION
APPEARANCES:
Anthony J. DiMarino, III, Esquire
A.J. DiMarino, III, P.C.
57 Euclid Street, Suite A
Woodbury, NJ 08096
H. Frances DeLone, Jr., Esquire
P.O. Box 361
Wayne, PA 19087
Attorneys for Plaintiff
Devjani Mishra, Esquire
Douglas B. Lipsky, Esquire
Seyfarth Shaw LLP
620 Eighth Avenue
New York, NY 10018-1405
Attorneys for Defendant
HILLMAN, District Judge
This matter comes before the Court on Defendant’s Motion to
Strike the Testimony of Plaintiff’s Wife, for Sanctions and for
Summary Judgment on Count II of Plaintiff’s Complaint [Doc. 76].
For the reasons expressed below, Defendant’s Motion will be
denied.
I.
BACKGROUND
The factual history of this case has been set out at length
in the Court’s November 4, 2009 Opinion, and will not be repeated
except to the extent relevant to the current Motion.
On February
16, 2006, Plaintiff was terminated from his employment with
Defendant Amcor Flexibles, Inc.
Several months later, on May 5,
2006, Plaintiff filed a charge of racial discrimination against
Defendant with the New Jersey Division on Civil Rights and the
Equal Employment Opportunity Commission (hereinafter “EEOC”).
One month later, on June 5, 2006 at 5:13 a.m., Plaintiff alleges
that a person called his home and screamed the words, “[n]iggers
aren’t qualified to work in this business.
complaining.
Why you niggers
Niggers shouldn’t be in this business” when his
wife (hereinafter “Mrs. Taylor”) answered the phone. Doc. 87-2,
Exhibit C, Dep. 67.
The caller ID function on Plaintiff’s
telephone indicated the call originated from a phone assigned to
Rexam Healthcare, an organization owned by Defendant.
Taylor took a photograph of the caller ID.
Mrs.
Plaintiff admits he
was asleep when the call occurred, did not hear the exchange on
the telephone and does not know who made the call.
He also did
not learn about the call until Mrs. Taylor informed him of it
“later that morning.” Id. at 70.
On July 27, 2007, Plaintiff filed his Complaint in this
case, alleging counts for discrimination, retaliation, and
2
defamation.
During the course of discovery, Defendant served a
deposition subpoena upon Mrs. Taylor.
Shortly thereafter, on
October 27, 2008, Plaintiff’s counsel represented to the
magistrate judge assigned to the matter, Judge Schneider, that
Mrs. Taylor was unavailable to be deposed because of health
concerns related to her in vitro fertilization treatments.
Specifically, Mrs. Taylor’s doctor advised her to avoid any
stress while undergoing the in vitro fertilization procedure.
After receiving this information, Judge Schneider, in an October
27, 2008 Order, stated that “1.
Pretrial factual discovery . . .
shall be concluded by . . . November 28, 2008" and “3.
If Mrs.
Taylor will testify at trial or if she will be submitting an
Affidavit in opposition to defendant’s Motion for Summary
Judgment, she shall be made available for deposition.” Doc. 24.
Approximately four months later, Defendant moved for Summary
Judgment on Plaintiff’s claims and Plaintiff moved for Partial
Summary Judgment.1
On November 4, 2009, the Court denied
Plaintiff’s Motion and granted in part and denied in part
Defendant’s Motion.
Summary judgment was entered in favor of
Defendant with respect to Counts I, discrimination, and III,
defamation, and denied with respect to Count II, retaliation.
November 20, 2009, Defendant moved for reconsideration of the
1
Pursuant to Judge Schneider’s October 27, 2008 Order,
Plaintiff did not submit an affidavit from Mrs. Taylor because
she was not deposed.
3
On
Court’s November 4, 2009 Order denying summary judgment on Count
II of Plaintiff’s Complaint.
On June 25, 2010, the Court granted in part and denied in
part Defendant’s Motion for Reconsideration.
The Court concluded
“it did not specifically address the unavailability of
Plaintiff’s wife as a witness” and that her unavailability to
testify “adds a layer of hearsay to any testimony regarding the
contents of the allegedly retaliatory phone call she received and
calls into question the admissibility of the proffered photograph
of Plaintiff’s caller-id. . . . [T]hese issues could potentially
change the Court’s holding on Plaintiff’s retaliation claim and
that further argument is necessary to determine the scope of
Plaintiff’s potential testimony regarding the phone call and
photograph and whether such testimony would fall under any
hearsay exceptions or is otherwise admissible before the Court
can make a final determination on this issue.” Doc. 67.
The
remainder of Defendant’s arguments for reconsideration were
denied as already considered and rejected by the Court’s November
4, 2009 Opinion.
To address the hearsay issue, the Court held a hearing on
July 21, 2010, and ruled that Defendant could take the deposition
of Mrs. Taylor.2
Defendant was permitted to question Mrs. Taylor
2
Several days before the hearing, Plaintiff’s counsel
informed Defendant’s counsel that Mrs. Taylor was now available
to be deposed.
4
on the circumstances of her previous unavailability as well the
circumstances pertaining to the June 5, 2006 call.
After the
deposition, the Court opined that Defendant may make “any motion
they feel appropriate as it relates to the admissibility of her
[Mrs. Taylor’s] testimony at trial.
Both as [to] procedural
matter[s] and as an evidentiary matter, and allow them to make a
renewed dispositive motion on the remaining claim in the case
based on that testimony.” Doc. 75, Tr. 21.
At her deposition, Mrs. Taylor detailed the restrictions
related to her in vitro fertilization treatments.
She recalled
that her doctor directed her to “lay low, stay of my feet, keep
my feet up, [and] stay out of stress.”
Dep. 48.
Doc. 87-2, Exhibit C,
Mrs. Taylor additionally testified that she never asked
her doctor whether she could give a deposition for the present
case and admitted that the week of August 3, 2010 was the first
time she ever discussed with anyone whether she could give a
deposition.
With respect to the alleged June 5, 2006 telephone
call, Mrs. Taylor relayed the details of the call and
acknowledged that she took a picture of the caller-id sometime
after the call.
Defendant now moves to Strike the Testimony of
Mrs. Taylor, for Sanctions and for Summary Judgment on Count II
of Plaintiff’s Complaint.3
Plaintiff opposes the Motion.
3
The Court has jurisdiction over Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1331 because Plaintiff alleged a
violation of Title VII of the Civil Rights Act of 1964 (“Title
5
II.
DISCUSSION
A.
Mrs. Taylor’s Deposition
Defendant argues Mrs. Taylor’s deposition testimony should
be stricken because Plaintiff acted in bad faith by refusing to
provide her for deposition during the discovery period.
Plaintiff contends sanctions are not warranted because Mrs.
Taylor was undergoing in vitro fertilization treatments at that
time and could not be deposed because of the stress involved in
taking a deposition.
Plaintiff further contends that Judge
Schneider’s October 27, 2008 Order did not indicate when Mrs.
Taylor’s deposition had to occur.
Federal Rule of Civil Procedure 37 authorizes courts to
sanction parties for discovery violations.
Courts have “broad
discretion” concerning the “type and degree” of sanctions it
imposes. Wachtel v. Health Net, Inc., 239 F.R.D. 81, 84 (D.N.J.
2006); see Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d
524, 538 (3d Cir. 2007) (“The decision to impose sanctions for
discovery violations and any determination as to what sanctions
are appropriate are matters generally entrusted to the discretion
of the district court”).
This broad discretion, however, is
“limited by two standards.” Capogrosso v. State Farm Ins. Co.,
No. 08-2229, No. 07-5324, 2010 WL 3404974, at * 8 (D.N.J. Aug.
26, 2010) (quoting Harris v. City of Philadelphia, 47 F.3d 1311,
VII”), 42 U.S.C. § 2000e.
6
1330 (3d Cir. 1995)).
“First, any sanction must be ‘just’;
second, the [s]anction must be specifically related to the
particular ‘claim’ which was at issue in the order to provide
discovery.” Id. (quoting Harris, at 47 F.3d at 1330).
Federal Rule of Civil Procedure 37 specifically provides
that “if a party . . . fails to obey an order to provide or
permit discovery,” as a sanction, the court may prohibit the
“disobedient party . . . from introducing designated matters in
evidence.” Fed. R. Civ. P. 37(b)(2)(A)(ii).
Exclusion of
evidence, however, is an “extreme sanction and normally not
imposed absent willful deception or flagrant disregard” of a
court order. Access 4 All, Inc. v. ANI Assocs., Inc., No. 046297, 2007 WL 178239, at * 3 (D.N.J. Jan. 27, 2007) (quoting in
part Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d
894, 905 (3d Cir.1977) (overruled on other grounds, 777 F.2d 113
(3d Cir. 1985))) (further quotations, citations omitted).
“The
Third Circuit has, on several occasions, manifested a distinct
aversion to the exclusion of important testimony absent evidence
of extreme neglect or bad faith on the part of the proponent of
the testimony.” Mercedes Benz USA LLC v. Coast Automotive Group
Ltd., No. 99-3121, 2008 WL 4378294, at * 3 (D.N.J. Sept. 23,
2008) (further quotations, citations omitted).
Therefore, when
considering whether to exclude evidence, “[d]istrict courts must
exercise particular restraint.” Id.
7
In its determination whether
to impose the sanction of exclusion of evidence for failure to
comply with a court order, courts should consider:
(1) the prejudice or surprise to the party against whom
the withheld evidence will be offered; (2) the ability
to cure the prejudice; (3) the extent to which the
evidence would disrupt the orderly and efficient trial
of the case; and (4) bad faith or willfulness of the
delinquent party in failing to comply with the court’s
orders.4
ANI Assocs., Inc., 2007 WL 178239 at * 3; see Hayes v. Cha, 338
F.Supp. 2d 470, 502 (D.N.J. 2004) (noting similar factors); see
also Wachtel, 239 F.R.D. at 105 (stating similarly).
Applying the factors to the present matter, the Court will
not strike Mrs. Taylor’s deposition testimony.5
Defendant did
not suffer prejudice as a result of Plaintiff’s actions.
Although the deposition occurred almost two years6 after the
conclusion of discovery, Defendant was permitted to question Mrs.
Taylor on all circumstances surrounding her initial
unavailability and on all matters relating to the call,
conversation and photograph of the caller-id.
Furthermore, any
4
At least one court in this district noted that “[a]n
important final consideration is the importance of the excluded
testimony to the proffering party’s case.” Seltzer v. I.C.
Optics, Ltd., 339 F. Supp.2d 601, 607 (D.N.J. 2004).
5
As an initial matter, the Court will assume, without
deciding, that Plaintiff failed to comply with a Court Order.
6
Plaintiff cannot be held entirely liable for the
approximate two-year delay. A significant portion of that delay
arises from the delay inherent in a crowded docket. See Doc. 75,
Tr. 20.
8
prejudice Defendant suffered when the Court permitted Mrs.
Taylor’s deposition was cured.
At the July 21, 2010 hearing, the
Court explicitly permitted Defendant to file a renewed motion for
summary judgment on Plaintiff’s remaining retaliation claim.7
With respect to the third factor, disruption of trial, a
final pretrial order was never entered.
Therefore, permitting
Mrs. Taylor’s testimony had no effect on the orderly trial of
this case.
Turning to the fourth factor, although it appears
clear that Plaintiff proffered his wife’s testimony only when it
may have appeared necessary to avoid a possible dismissal, the
Court cannot conclude he acted with such bad faith or extreme
neglect as to constitute “willful deception” or “flagrant
disregard” of Judge Schneider’s October 27, 2008 Order.
The
Court is not presented with a situation where Mrs. Taylor
blatantly disregarded or ignored an order to be deposed.
Rather,
Judge Schneider’s Order imposed a discovery deadline and directed
Plaintiff to ensure Mrs. Taylor’s availability for deposition if
she were to testify at trial or submit an affidavit in opposition
to summary judgment.
After the discovery deadline expired, Plaintiff realized
Mrs. Taylor’s testimony was necessary for his case.
Even though
Mrs. Taylor never specifically discussed with her doctor or
7
As discussed later in this Opinion, the Court, however,
limited the Motion to procedural and evidentiary matters relating
to Mrs. Taylor’s testimony at trial.
9
anyone whether she could sit for a deposition, Plaintiff informed
Defendant and Judge Schneider that Mrs. Taylor’s unavailability
was the result of her doctor’s order to avoid stress during her
in vitro fertilization treatments.
Although Plaintiff’s late
proffer of his wife’s testimony is troubling and inconsistent
with an obligation of diligence in the litigation process, the
Court cannot conclude that Plaintiff acted in flagrant or willful
disregard of a court order.
Plaintiff never submitted an
affidavit from Mrs. Taylor, nor did he lie or misrepresent facts
to the Court.
accurate.
The information he relayed was apparently
Mrs. Taylor was informed by her doctor to avoid
stress, and depositions may, in fact, be stressful events.
Despite the delay of Mrs. Taylor’s deposition because of
Plaintiff’s conduct, the Court cannot conclude that Plaintiff
acted with extreme neglect or bad faith when he represented to
the Court the reason for Mrs. Taylor’s unavailability.
Lastly, Mrs. Taylor’s deposition testimony is important to
what remains of Plaintiff’s case.
Without Mrs. Taylor’s
testimony, summary judgment must be entered in favor of Defendant
because Plaintiff could not establish either the authenticity of
the caller-id pictures or the content of the phone call.
Although Defendant does not request for the Court to sanction
Plaintiff with dismissal of his Complaint, the Court is very
mindful that the sanction of striking Mrs. Taylor’s testimony
10
essentially equates to a sanction of dismissal of Plaintiff’s
claim. See N’Jie v. Cheung, No. 09-919, 2010 WL 3259793, at * 7
(D.N.J. Aug. 16, 2010) (“Dismissal, however, is an ‘extreme’
sanction and is disfavored absent the most egregious
circumstances).
punishment.
Plaintiff’s conduct does not warrant this
Furthermore, a more “just” result is one based on
the merits rather than one derived from a sanction for a
procedural default. See Brimage v. Hayman, No. 06-1565, 2010 WL
3339830, at * 1 (D.N.J. Aug. 23, 2010) (“[I]t is well settled
that the preference of the Third Circuit is to decide cases on
the merits”).
Conscious of this result, the absence of prejudice
to Defendant and the lack of bad faith or willfulness of behalf
of Plaintiff, the Court concludes that striking Mrs. Taylor’s
testimony is an inappropriate sanction.8
B.
Standard for Summary Judgment
Summary judgment is appropriate where the Court is satisfied
that “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.
P. 56(c).
8
Because the Court concludes sanctions are inappropriate,
it will not award attorneys’ fees or other monetary penalties.
11
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id.
In considering a motion for summary judgment, a
district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the nonmoving party’s
evidence “is to be believed and all justifiable inferences are to
be drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d
241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact. Celotex Corp.,
477 U.S. at 323.
Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial.
Id.
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party. Anderson, 477 U.S. at 256-57.
A party opposing summary
judgment must do more than just rest upon mere allegations,
general denials, or vague statements. Saldana v. Kmart Corp., 260
F.3d 228, 232 (3d Cir. 2001).
C.
Plaintiff’s Retaliation Claim
12
In Count II of Plaintiff’s Complaint, he asserts that
Defendant retaliated against him, in violation of both Title VII
and the New Jersey Law Against Discrimination (hereinafter
“NJLAD”), after he filed a complaint with the Equal Employment
Opportunity Commission.
After he filed his EEOC complaint,
Plaintiff alleges that a harassing phone call was made to his
home by someone using a phone number registered to Defendant.
Claims of retaliation under both Title VII and the NJLAD are
analyzed under the well established burden shifting framework of
McDonnell Douglas.9 See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 803-05 (1973).
Under that framework, a plaintiff must
first establish a prima facie case by showing that: (1) he
engaged in protected employee activity; (2) the employer took
adverse action against him after, or contemporaneous with, his
activity; and (3) a causal link exists between his activity and
the employer’s action against him. Muzslay v. City of Ocean City,
238 Fed. Appx. 785, 789 (3d Cir. 2007) (citing Abramson v.
William Paterson College, 260 F.3d 265, 286 (3d Cir. 2001)).
9
Both the Third Circuit and New Jersey courts have long
recognized the symmetry between retaliation claims under the
NJLAD and Title VII. See McKenna v. Pacific Rail Serv., 32 F.3d
820, 827 (3d Cir. 1994) (“The New Jersey Supreme Court has
generally looked to standards developed under federal antidiscrimination law for guidance in construing the LAD.”);
Grigoletti v. Ortho Pharmaceutical Corp., 570 A.2d 903, 912 (N.J.
1990) (“We have recognized a . . . need to harmonize our LAD with
Title VII and have borrowed heavily from the federal experience
to assure some reasonable degree of symmetry and uniformity.”).
13
Should the plaintiff establish a prime facie case, a presumption
of discrimination is created and the burden of production shifts
to the defendant to articulate some legitimate, nondiscriminatory
reason for its actions. McDonnell Douglas, 411 U.S. at 803.
Once
the employer answers its relatively light burden by articulating
a legitimate, nondiscriminatory reason for the unfavorable
employment decision, the burden of production rebounds to the
plaintiff, who must show by a preponderance of the evidence that
the employer’s explanation was merely a pretext for its actions,
thus meeting the plaintiff’s burden of persuasion.
Id.
The parties do not dispute that Plaintiff’s EEOC complaint
constitutes protected activity.
Accordingly, the only question
is whether Defendant took an adverse action against Plaintiff
because he filed his complaint.
Plaintiff asserts that
approximately one month after he filed his EEOC claim, someone
called his house at 5:13 a.m. from a phone number registered to
Rexam Healthcare, a subsidiary of Amcor, and said, “[n]iggers
aren’t qualified to work in this business.
complaining.
Why you niggers
Niggers shouldn’t be in this business.” Doc. 87-2,
Exhibit C, Dep. 67.
As evidence of the phone call, Plaintiff
submitted a photograph of the caller-ID screen from his
telephone.
In Opposition, Defendant asserts it is entitled to summary
judgment because Plaintiff cannot establish his retaliation
14
claim.
Defendant argues Plaintiff cannot prove the identity of
the caller, therefore, liability cannot be imputed to Defendant.
Further, Defendant contends Plaintiff failed to present any
evidence that anyone at the facility where the phone used to make
the call was located had any knowledge of Plaintiff’s protected
activity, and so Plaintiff cannot demonstrate that the call was
causally linked to his EEOC claim.
Finally, Defendant argues
that Mrs. Taylor’s testimony concerning the content of the call
is inadmissible hearsay.
The Court will not consider Defendant’s arguments.
Not only
were they already addressed and rejected in the November 4, 2009
Opinion10, but also the Court specifically limited the pending
Motion for Summary Judgment to procedural and evidentiary issues
relating to the admissibility of Mrs. Taylor’s testimony.
Although we granted in part Defendant’s Motion for
Reconsideration, the Court only reconsidered the aspect of its
decision relating to “the unavailability of Plaintiff’s wife as a
witness,” in that her unavailability to testify “adds a layer of
hearsay to any testimony regarding the contents of the allegedly
retaliatory phone call she received and calls into question the
admissibility of the proffered photograph of Plaintiff’s caller-
10
In that Opinion, the Court concluded Plaintiff
established that a genuine issue of material fact existed as to
whether he was subjected to a harassing telephone call in
response to his filing of a protected EEOC claim.
15
id.” Doc. 67.
The remainder of Defendant’s arguments in support
of reconsideration were rejected as mere disagreement with the
Court’s decision.11 See Doc. 67 (“[T]he remainder of Defendant’s
arguments were considered and rejected in the Court’s November 4,
2009 Opinion and . . . mere disagreement with the Court will not
suffice to show that the Court overlooked relevant facts or
controlling law”).
The Court’s view of the limited nature of the
pending Motion is further supported by its ruling during the July
21, 2010 hearing.
In that hearing, the Court permitted
Defendants “to make . . . any motion they feel appropriate as it
relates to the admissibility of her [Mrs. Taylor’s] testimony at
trial.
Both as [a] procedural matter and as an evidentiary
matter, and allow them to make a renewed dispositive motion on
the remaining claim in the case based on that testimony.” Doc.
75, Tr. 21.
Consequently, in its reconsideration of the November
4, 2009 Opinion and in the July 21, 2010 hearing, the Court was
explicitly clear that it would only reconsider and entertain a
dispositive motion with respect to its decision relating to the
procedural and evidentiary issues arising from the admissibility
or inadmissability of Defendant’s wife, Mrs. Taylor’s testimony.
Defendant’s arguments in support of its Motion for Summary
Judgment do not relate to Mrs. Taylor’s testimony and, therefore,
11
The arguments the Court refused to reconsider are the
same arguments Defendant again raises in the pending Motion.
16
are outside the scope of this Motion.
To the extent, however,
any of Defendant’s arguments implicate Mrs. Taylor’s testimony,
they were already previously rejected by this Court in its
November 4, 2009 Opinion and not reconsidered in its June 25,
2010 Order.
We will not revisit these decisions and permit
Defendant to re-litigate matters already decided and rejected.12
The Court finds that disputed issues of material fact exist
as to whether Plaintiff was subjected to a harassing telephone
call in response to his filing of a protected EEOC claim.
These
disputed facts preclude entry of summary judgment in favor of
Defendant.
Mrs. Taylor specifically testified that she answered
the phone and heard the comment, “[n]iggers aren’t qualified to
work in this business.
Why you niggers complaining.
Niggers
shouldn’t be in this business.”13 Doc. 87-2, Exhibit C, Dep. 67.
She additionally opined that she took the photograph of the
caller-id, which reflected that the call originated from Rexam
Healthcare, a subsidiary of Amcor.
This testimony cures the
12
To the extent Defendant raises arguments not previously
considered in its first Motion for Summary Judgement, the Court
will not address those arguments because they do not relate to
the admissibility or inadmissibility of Mrs. Taylor’s testimony.
As discussed above, the Court confined this summary judgment
Motion to the procedural and evidentiary issues arising from Mrs.
Taylor’s testimony.
13
In its November 4, 2009 Opinion, the Court found that
“[t]his statement by itself is capable of creating a genuine
issue of material fact with respect to the causal relationship
between the call and Plaintiff’s protected activity.” Doc. 56.
17
hearsay issues that prompted the Court to reconsider its November
4, 2009 denial of summary judgment.
Through Mrs. Taylor’s
testimony, Plaintiff can establish the content of the comment
and the authenticity of the caller-id photograph.
Defendant’s
Motion will, therefore, be denied.
III. CONCLUSION
For the reasons expressed above, Defendant’s Motion to
Strike the Testimony of Plaintiff’s Wife, for Sanctions and for
Summary Judgment on Count II of Plaintiff’s Complaint [Doc. 76]
will be denied.
An appropriate order will be entered.
Date: June 29, 2011
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
18
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