Harris v. Hiester Automotive Group, Inc. et al

Filing 69

ORDER denying 43 Motion for Summary Judgment; denying 44 Motion to Dismiss; denying 47 Motion to Disqualify Counsel. ; denying 66 Motion to Dismiss. The case shall proceed to trial as herein announced. Counsel should read the order in its entirety for critical deadlines and information. Signed by United States District Judge Louise Wood Flanagan on 2/21/2018. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:16-CV-211-FL

NEFFERTITI HARRIS,
Plaintiff,
v.
JOHN HIESTER CHEVROLET OF
LILLINGTON, LLC and HIESTER
AUTOMOTIVE GROUP, INC.,
Defendants.

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ORDER

This matter is before the court on various motions filed by defendants including motions for
1) summary judgment (DE 43); 2) dismissal as a sanction for witness tampering and pursuant to
certain procedural rules1 (DE 44), as supplemented (DE 66); and 3) to disqualify counsel (DE 47).
Issues raised are ripe for ruling.
BACKGROUND
Plaintiff commenced this action April 28, 2016, alleging unlawful harassment,
discrimination, and retaliation based on her race and sex in violation off the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e, et seq. (“Title VII”) and the Civil Rights Act of 1871, as
amended, 42 U.S.C. § 1981 (“§ 1981”) and wrongful termination in violation of the North Carolina
Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.2 (“NCEEPA”).
On August 21, 2017, defendants filed the instant motion for summary judgment, moving for

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Defendants move to dismiss specifically under Rules 11 and 37 of the Federal Rules of Civil Procedure.

judgment on all race-based claims.2 Also on August 21, 2017, defendants filed the instant motion
to dismiss. Defendants seek the court to dismiss plaintiff’s case as a sanction for witness tampering,
pursuant to Federal Rules of Civil Procedure 11 and 37, and pursuant to the inherent power of the
court. Two days later, defendants filed the instant motion to disqualify counsel. Motions briefing
has been protracted. Plaintiff filed her responses to defendants’ motions for summary judgment and
motion to dismiss as a sanction on October 15, 2017 and further filed a motion to stay regarding
defendants’ motion to disqualify counsel, which motion was allowed.3 Discovery also has been
protracted. Limited discovery concluded November 27, 2017.
Following close of discovery, on December 11, 2017, defendants filed the instant supplement
to defendants’ motion to dismiss as a sanction. Defendants raise up as a concern plaintiff’s alleged
failure to respond fully to discovery. The meat of this motion hangs on the bones of an exchange
by text message between plaintiff and another which purports to reveal that her deposition testimony
is a fabrication, to which plaintiff has responded in opposition.
COURT’S DISCUSSION
A.

Defendants’ Motion for Summary Judgment
As stated above, plaintiff has brought race-based claims against defendants for 1) race

harassment and discrimination in violation of Title VII, 2) race harassment and discrimination in
violation of § 1981, 3) relation in violation of Title VII, and 4) wrongful discharge in violation of

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Count V of plaintiff’s complaint seeks damages for unlawful harassment and discrimination based on
plaintiff’s sex in violation of Title VII. While posited as a motion addressing all claims, defendants have not presented
separate argument with respect to count V in furtherance of their motion for summary judgment.
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Because the court denies herein the motion to disqualify the fact plaintiff has not yet had an opportunity to
respond is of no moment.

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NCEEPA.4 Plaintiff relies in defense of motion for summary judgment on testimony, among other
things, from two former co-workers, Kevin Killingworth (“Killingworth”) and Duane Davis
(“Davis”).5
Defendants disregard testimony of Killingsworth and Davis in the context of their motion
for summary judgment. Presumably, defendants’ position is that due to plaintiff’s alleged
wrongdoing in securing Killingsworth’s original testimony on which she relies, the court should not
consider that testimony (or the testimony of Davis) in deciding defendants’ motion for summary
judgment. Killingsworth’s later testimony, disavowing his earlier testimony is front and center of
defendants’ motions to dismiss and to disqualify counsel. Because Killingsworth’s testimony is key
to unraveling most of what is now before the court, the court turns to this witness below.
To say there is much acrimony between the sides would be an understatement. Defendants
accuse plaintiff of attempting to bribe Killingsworth. Defendants assert that plaintiff’s counsel knew
or should have known of plaintiff’s bribery attempt. Plaintiff and plaintiff’s counsel deny this
allegation, arguing in response that defendants have somehow procured false testimony from
Killingsworth to support their contentions. Both sides request, should the court be so inclined,
evidentiary hearing. (See DE 44 at 11 (“Certainly, an investigation by the Court, and/or the
allowance of further discovery into all these issues, may shed more light on the exact circumstances
of fraud that has been perpetrated. It may even lead to criminal charges, and perhaps it should.”);

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Defendants suggest that plaintiff is also pursuing a hostile work environment claim under Title VII. (DE 45
at 8). Plaintiff does not respond to this assertion and appears to be pursuing only the claims herein listed.
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Previously pending before this court was Davis v. John Hiester Chrysler Dodge Jeep, LLC, et al., No. 5:16CV-210, in which Duane Davis, represented by the same counsel as here, alleged that the same defendants as in the
present case, acted in violation of Title VII, 42 U.S.C. § 1981, and North Carolina law when they engaged in race-based
discrimination, retaliation, and wrongfully discharged plaintiff. The parties in the Davis case filed a notice of voluntary
dismissal on December 22, 2017.

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DE 57 at 12 (“Accordingly, if Defendants’ motion is not denied outright, Plaintiff request that the
Court develop a complete record before addressing Defendants’ request for sanctions by convening
an evidentiary hearing during which Killingsworth and any other necessary witnesses can be
examined and during which the Court will be able to personally assess the credibility of the
witnesses involved.”)).
There are three affidavits in the record executed by Killingsworth. In the one executed
September 30, 2016, on which plaintiff relies in defense of defendants’ motion for summary
judgment, Killingsworth testifies in part concerning plaintiff’s supervisor, Jamie Poulin (“Poulin”),
the following:
During that meeting, I overheard Jamie Poulin state that “We need to get that n*****
out of here before she causes more trouble.” As noted, Ms. Harris was the only
female African-American employee managed by Mr. Poulin. . . . Ms. Harris was
terminated from her job the next day . . . . I asked him why he had called her the nword. He said “because of the way she flaunts her stuff, and she acts like a n****
and acts like us white folk owe her something.’”
(DE 57-12 at 2-3) (“first Killingsworth affidavit”).
In his second affidavit, executed July 27, 2017, on which defendants rely in furtherance of
their motions to dismiss and to disqualify, Killingsworth testifies in part:
I heard Jamie use the “N” word one time. . . . I believe it may have been after Ms.
Harris had been terminated. He mentioned Ms. Harris and used the N word at some
point during that conversation. . . . I believe that Jamie’s use of the N word not
necessarily meant to be racially disparaging and don’t think Jamie meant any harm
by using the N word.
(DE 44-8 at 1; 48-7 at 1).
In the third affidavit on which defendants also rely, executed by Killingsworth on July 29,
2017, the witness testifies in part:
[Plaintiff’s fiance] asked if I remembered him ever saying the “N” word about
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Nefertitti Harris and, jokingly, I said, “For the right amount of money, yeah . . . I
could say that.” Wesley then went home to Nefertiti and they called me up a day or
two later and offered to compensate me if I would testify that Jamie used the “N”
word about Nefertitti. They discussed that I would receive a large sum of money in
range sum of 5-10 thousand dollars because they would get a lot of money from
Hiester using me as a witness. I agreed but I would never have actually testified
under oath that Jamie used the “N” word about Nefertitti because I was simply
offered money in exchange for this false testimony.
(DE 44-9 at 1; 48-8 at 1). Plaintiff relies in response to defendants’ motion to dismiss on her
affidavit and that of Wesley Northcutt (“Northcutt”), her stated

fiancé, contradicting

Killingsworth’s later testimony in the case. (DE 56-5, DE 56-6).
It is this tangled web of testimony that the parties seek the court now to unravel at
evidentiary hearing. The court declines to exercise any such authority. A genuine issue of material
fact looms large in this case. Credibility determinations are required to be made. Such is not the
stuff of summary judgment. On the weight of Killingsworth’s three affidavits, the court must deny
defendants’ motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (1986) (“Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or
for a directed verdict.”).6
B.

Defendants’ Motions to Dismiss as a Sanction and to Disqualify Counsel

Defendants’ accusations regarding Killingsworth and Davis are the main focus of
defendants’ motions to dismiss as a sanction and to disqualify counsel. Killingsworth’s testimony
already has been discussed. Davis’s testimony concerning racist comments made to Davis by
Poulin, who was also Davis’s supervisor, relied upon by plaintiff in defense of defendants’ motion
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Given this conclusion, there is no need for the court to wade into the morass of Davis’s testimony on which
plaintiff also relies in defense of defendants’ motion for summary. The court returns, however, to Davis in the context
of defendants’ motion to dismiss.

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for summary judgment, also is focused upon by defendants in these other motions.
Defendants argue plaintiff and Davis somehow have engaged in inappropriate behavior
during the course of this case. (See, e.g., DE 44 at 2 (“The evidence has revealed that Harris and
Davis have discussed their cases together, have been in contact with each other as their cases have
progressed, named each other as witnesses in each other’s case, attended depositions together (even
depositions of witnesses who were not named in both of their individual cases) and have admitted
through counsel that their cases are related”); DE 48 at 12 (“Davis testified that the two had met,
discussed their cases and even discussed their cases the day of the depositions. Further, they listed
each other as witnesses in their respective cases and EEOC filings.”); DE 66 at 2-3 (“. . . Harris’ own
text exchanges with Davis make it very clear that she and Davis were in communication about their
claims from the onset and that her deposition testimony is a fabrication . . . .)).
Defendants first argue the court should dismiss this case as a sanction for witness tampering,
relying solely on an unpublished Maryland district court opinion that did not dismiss the case before
that court for witness tampering but directed the parties to conduct additional discovery on the issue.
(See DE 44 at 3-4 (citing Goel v. Tishcon Corp., No. CIV. L-10-2536, 2011 WL 836680, at *3-4
(D. Md. Mar. 4, 2011)).
Defendants also argue the court should dismiss this case pursuant to Rule 11, attacking the
sufficiency of plaintiff’s evidence and faulting plaintiff’s counsel for not conducting a reasonable
inquiry regarding it. Defendants’ allegations in support of Rule 11 sanctions and in furtherance of
their motion to disqualify counsel are inextricably linked to the credibility issues that make the
denial of summary judgment necessary as stated above. Allegations that plaintiff “has solicited
perjury, conspired to falsify witness statements and made false allegations about the presence of

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witnesses,” and that plaintiff’s counsel was aware or should have been aware of these inappropriate
actions, (DE 48 at 2-3), are not now actionable. Address of these questions by the court on ancillary
motions, after denial of motion for summary judgment, would not be appropriate. Newly discovered
evidence of a conversation between plaintiff and Davis concerning their attorneys, offered in
supplement to the motion to dismiss, is not the stuff on which dismissal or sanctions can be based,
either.
C.

Future Case Developments

Counsel and the parties are on notice as to the alleged improprieties of which both sides have
been accused. These allegations, if proven, may form the basis for granting a future Rule 11 motion.
See, e.g., Fed. R. Civ. P. 11 advisory committee’s note (1993) (“However, a litigant’s obligations
with respect to the contents of these papers are not measured solely as of the time they are filed with
or submitted to the court, but include reaffirming to the court and advocating positions contained
in those pleadings and motions after learning that they cease to have any merit”); Rentz v. Dynasty
Apparel Industries, Inc., 556 F.3d 389, 395 (6th Cir. 2009) (a lawyer may be sanctioned for
continuing to insist upon a position that is no longer tenable); Fabriko Acquisition Corporation v.
Prokos, 536 F.3d 605, 610 (7th Cir. 2008) (even if a claim was supported when submitted in writing,
party violated Rule 11 by continuing to advocate it after it was clear that the claim had no merit);
McCarty v. Verizon New England, Inc., 674 F.3d 119 (1st Cir. 2012) (sanctions warranted where
district court put attorney on notice as to factual and legal inadequacies of complaint and attorney
persevered).7

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In addition to counsel, the court cautions the parties. See Fed. R. Civ. P. 11 advisory committee’s note (1983)
(“If the duty imposed by the rule is violated, the court should have the discretion to impose sanctions on either the
attorney, the party the signing attorney represents, or both, or on an unrepresented party who signed the pleading, and
the new rule so provides.”); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 567 (5th Cir. 2006) (sanctioning both lawyer

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1.

Case Schedule

In light of the court’s determinations set forth herein, this case now will proceed to jury trial
of length this court estimates of not more than four days to commence with jury selection beginning
May 14, 2018 at 9:00 a.m. at New Bern, North Carolina.8 In accordance with this trial setting:
a.

Pursuant to Federal Rule of Civil Procedure 16(e), a final pretrial conference
will be held before the undersigned at the United States Courthouse, New
Bern, North Carolina on April 25, 2018 at 10:00 a.m. Each party appearing
in this action must be represented by the attorney who is to have charge of
the conduct of the trial on behalf of such party.

b.

Where an evidentiary question or issue relating to admissibility of evidence
can be anticipated before the final pretrial conference, motion contemplated
by Local Civil Rule 39.1(a) must be filed April 10, 2018, thereby permitting
sufficient time for any written response in advance of conference. Unless
leave of court is given, no replies shall be made for motions in limine.
Where, by contrast, the question or issue bearing on admissibility of evidence
cannot reasonably be contemplated in advance of the final pretrial
conference, any motion in limine must be filed May 7, 2018, pursuant to
Local Civil Rule 39.1(a).

c.

By April 18, 2018, counsel must submit to chambers (but not file) the

and client for violation of Rule 11(b)(3)); Union Planters Bank v. L & J Development Co., Inc., 115 F.3d 378, 384 (6th
Cir. 1997) (sanctioning client for false fact assertions).
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Should this trial date and estimated trial length raise issue, any party may file a motion to continue, which
motion shall represent the position of the opposition. Said motion shall be filed not later than seven days from date of
this order. Alternative trial dates may be proposed.

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parties’ proposed pretrial order. See Local Civil Rule 16.1(b). This
submission must comply with the form specified in Local Civil Rule 16.1(c).
Pursuant to Local Civil Rule 16.1(c)(3), and Federal Rule of Civil Procedure
26(a)(3), objections not disclosed in the pre-trial order are waived unless
excused by the court for good cause. The parties submit at the beginning of
the trial copies of all exhibits referenced in the pretrial order. See Local Civil
Rule 39.1(b). The parties’ proposed pretrial order shall be submitted in
WordPerfect or Word format, at the following email address:
[e-mail]
d.

Pursuant to Local Civil Rule 16.1(b)(3), if a party has a need for any type of
courtroom technology for a hearing or trial, including but not limited to any
audio equipment, video equipment, document presentation system, and jury
evidentiary recording system, counsel must notify the case manager at 252638-8534 and request training from the court’s information technology staff
for the person or persons who will be operating the courtroom technology.
Unless excepted by the clerk, no later than seven days before the scheduled
proceeding in which such technology is used, counsel must file a certification
provided by the court’s technology staff that training has been completed.
Counsel shall review all related documentation appearing on the court’s
website, including information concerning formatting of evidentiary DVDs.

e.

By April 18, 2018, the parties must notice the court whether it will be
necessary to rule upon any dispute(s) where video depositions are to be used

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and the parties have been unable to reach agreement on editing. See Local
Civil Rule 16.1(b)(2).
i.

Said notice shall inform of the nature and complexity of the issue(s)
concerning including whether it shall be necessary for the court to
review lengthy video deposition testimony in order to render
decision.

ii.

In that event, it is unlikely this review will be able to be undertaken
during the final pretrial conference, given time limitations, and the
parties must present in their notice what is believed to be the most
efficient framework for the court’s decision making on disputed
video deposition testimony.

f.

By April 18, 2018, the parties shall file jointly a proposed verdict form.
Where there is disagreement as to form, this jointly prepared submission
shall disclose the basis for a party’s objection and a proposed alternative
verdict form. Counsel also shall submit an electronic copy of said proposed
verdict form to chambers, in WordPerfect or Word format, at the following
email address:
[e-mail].

g.

By April 18, 2018, the parties shall file proposed jury instructions. Counsel
also shall submit an electronic copy of said proposed jury instructions to
chambers, in WordPerfect or Word format, at the following email address:
[e-mail].

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h.

At the final pretrial conference the court will:
i.

Rule upon any dispute concerning the contents of the final pretrial
order. Local Civil Rule 16.1(d)(1).

ii.

Rule upon any dispute where video depositions are to be used and the
parties have been unable to reach agreement on editing. Local Civil
Rule 16.1(b)(2).

iii.

Rule upon motions in limine related to admissibility of evidence, to
the extent possible at the time of pretrial conference. Local Civil
Rule 39.1(a).

iv.

Discuss generally the nature of the parties’ proposed jury
instructions, to discern areas of agreement and disagreement.

v.

Consider the proposed verdict form, together with the parties’
proposed pretrial order. Local Civil Rule 16.1(d).

vi.

Where this conference presents the final opportunity to prevent
wasting trial time on pointless or undisputed matters, endeavor to
streamline the trial, including but not limited to, where applicable,
consideration of: bifurcation, presentation of non-critical testimony
by deposition excerpts, stipulations as to the content of testimony,
and qualification of experts by admitted resumes.

vii.
i.

Explore once more the opportunities for settlement.

At trial, the court will conduct the examination of jurors. Not later than May
7, 2018, counsel shall file a list of any voir dire questions counsel desires to

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ask the jury. Local Civil Rule 47.1(b). Failure to timely file proposed
questions will be deemed a waiver of any supplemental inquiry.
j.

At trial, a joint statement of the case will be read by the court to the
prospective panel of jurors before commencement of voir dire. Counsel shall
file a joint statement of the case by no later than May 7, 2018. Unless the
case is extremely complex, this statement, the purpose of which is to acquaint
the jury with the nature of the case and to provide a basis for certain voir dire
questions, should not exceed one paragraph.

2.

Alternative Dispute Resolution

Pursuant to various court orders and Alternative Dispute Resolution Rule 101.1a(a),
mediation should have occurred in this case by July 20, 2017. The parties also have seven days
from date of entry of this order to file joint report evidencing their compliance where the court can
discern nothing on its docket indicating any mediation has occurred. If the parties have not
undertaken mediation, you have 30 days from date of entry of this order so to do. In this event, your
report due in seven days also shall identify the date and time of mediation and identity of mediator
selected.
CONCLUSION
Based on the foregoing, the court DENIES defendants’ motions for summary judgment, (DE
43), to dismiss as supplemented (DE 44, 66), and to disqualify counsel, (DE 47). The case shall
proceed to trial as herein announced.
SO ORDERED, this the 21st day of February, 2018.

_____________________________
LOUISE W. FLANAGAN
United States District Judge
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