Elliott v. DFW Communications, Inc.

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 24 Report and Recommendations, Denying 16 Motion for Summary Judgment. Signed by Judge Rodney Gilstrap on 12/4/2015. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DANIEL M. ELLIOTT,
v.
DFW COMMUNICATIONS, INC.

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Case No. 2:15-cv-00317-JRG-RSP

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant’s Objections to the Magistrate Judge’s Report and
Recommendation Denying Defendants’ Motion for Summary Judgment. (“Defendants’ Objections”)
(Dkt. No. 27). Also before the Court is Defendant’s Motion for Leave to File Supplemental Evidence
(“Motion to Supplement”) (Dkt. No. 28).
Defendant, in its Motion to Supplement, requests leave to introduce the 30(b)(6) deposition
testimony of Defendant’s COO Michael Fordinal. Defendant argues that the Court has discretion to
allow it to supplement the summary judgment record with new evidence after weighing: (1) the
moving party’s reasons for not originally submitting the evidence; (2) the importance of the omitted
evidence to the moving party’s case; (3) whether the evidence was previously available to the nonmoving party; and (4) the likelihood of unfair prejudice to the non-moving party if the evidence
is accepted. (Dkt. No. 28 at 2) (citing Freeman v. County of Bexar, 142 F.3d 848, 853 (5th Cir.
1998)). Defendant argues its failure to timely supplement is justified because “[t]he deposition was
taken on September 9, 2015; DFWC’s Motion for Summary Judgment was filed on August 28,
2).
[2015].” (Id. at
Defendant’s Motion to Supplement is DENIED. Defendant’s failure to timely supplement is
not substantially justified. Defendant filed a Reply brief September 28, 2015, almost three weeks
after the Fordinal deposition took place, but did not move to supplement at that time. (Dkt. No. 22).
Nor did Defendant move to supplement any time before the Magistrate Judge’s Report and

Recommendation issued November 10, 2015, two months after the Fordinal Deposition. (Dkt. No.
24). Defendant provides no justification for this delay; thus factors (1) and (3) weigh in favor of
excluding the evidence. Further, the omitted evidence carries little importance in the context of the
Court’s Summary Judgment analysis. At the summary judgment stage “the evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (U.S. 1986). Thus the relevant question is not whether the
movant’s position is supported by evidence but whether the evidence that supports the nonmovant is
sufficient to establish a genuine dispute of material fact. Id. at 247–48. Factor (2) therefore also
weighs in favor of excluding the supplemental evidence. The Court finds that the Freeman factors
weigh against permitting DFW to supplement.

In the Report and Recommendation (Dkt. No. 24), the Magistrate Judge correctly
identified material fact disputes on issue of undue hardship and correctly concluded that DFW
bears the burden of proof on this issue. First, a reasonable jury could conclude that another DFW
employee would have been available to voluntarily fill in for Elliot on the day he was absent.
See, e.g. (Dkt. No. 20 at Ex. A at 31:6-8) (“So was Mr. Mottershaw technically able to handle
calls if they came in? A. Yes.”); (Id. at 32:16-19, 37:12-39:2); (Id. at 47:10-48:2) (“Q. So other
than those two gentlemen, are you aware of any employee of DFW Communications that was
requested to work in Mr. Elliott’s place on April the 15th, but they objected? A. No.”). Second, a
reasonable Jury could conclude that being short-staffed for a single day would impose no more
than a de minimus cost on DFW, relying on the cited testimony that Mr. Mottershaw or another
employee could have been available to handle time-sensitive calls.
DFW’s Objections fault “[t]he Magistrate Judge’s conclusion that any of these three
categories of individuals could have been available to perform Plaintiff’s job duties on the day in
question.” (Dkt. No. 27 at 2). Defendant has misapprehended the Report and Recommendation—

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the Magistrate Judge correctly declined to engage in fact-finding at the summary judgment stage.
Instead, the Magistrate Judge considered whether “viewing the evidence in the light most
favorable to the nonmovant, a reasonable jury could find in favor of Elliot.” (Dkt. No. 24 at 4).
Because there is evidence of record that a reasonable jury could credit to find in favor of

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Plaintiff, summary judgment is inappropriate.
For the foregoing reasons, upon de novo review, the Court agrees with and adopts the
conclusions of the Report and Recommendation that Defendants are not entitled to summary
judgment. 28 U.S.C. § 636(b)(1)(C); FED.R.CIV.P. 72(b)(3). Accordingly, Defendants’
Objections are OVERRULED and the Magistrate Judge’s Report and Recommendation
Denying Defendants’ Motion for Summary Judgment (Dkt. No. 24) is hereby ADOPTED.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 4th day of December, 2015.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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