Keller, Jr. v. Coastal Bend College
ORDER. The Court ORDERS Defendant to make Espinoza available for deposition. Plaintiff will have fourteen (14) days from the filing of this order to depose Espinoza and fourteen (14) days afterward to submit additional evidence in response to Defendant's Motion for Summary Judgment, if Plaintiff so chooses. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
PETE KELLER, JR.,
COASTAL BEND COLLEGE,
§ CIVIL ACTION NO. 2:14-CV-7
Pending before the Court is Defendant Coastal Bend College’s Motion for
Summary Judgment (D.E. 21). On December 23, 2014, United States Magistrate Judge
Jason B. Libby issued his Memorandum and Recommendation (M&R) (D.E. 28)
recommending that Defendant’s motion be granted and that Plaintiff Pete Keller, Jr.’s
case be dismissed. The Court received Plaintiff’s timely-filed objections on December
29, 2014 (D.E. 29). On January 6, 2015, the Court received Defendant’s response to
Plaintiff’s objections (D.E. 34). Plaintiff’s objections are set out and discussed below.
First, Plaintiff objects to the Magistrate Judge’s recommendation to disregard
portions of his declaration under the Fifth Circuit’s sham affidavit rule. D.E. 28, p. 9 n.4.
Plaintiff’s objection characterizes the Magistrate Judge’s conclusion as “not much
specific criticism” and cites case law predating the Fifth Circuit’s adoption of the sham
affidavit rule.1 D.E. 29, p. 4. As the Defendant argues in its response, Plaintiff neither
confronts the sham affidavit rule nor does he explain the portions of his declaration
Compare Dibidale of La., Inc. v. Am. Batik & Trust Co., New Orleans, 916 F.2d 300, 307 (5th Cir. 1990) and
Kenneth-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980) with Doe ex rel. Doe v. Dallas Indep. Sch. Dist.,
220 F.3d 380, 386 (5th Cir. 2000).
contradicting his deposition testimony.
For example, Plaintiff does not adequately
explain why he failed to state during his deposition, as he now alleges in his declaration,
that Mike Slaughter would often refer to him and his Latino co-workers as “slow
D.E. 21-1, p. 32.
Plaintiff, in fact, specifically stated in his
deposition that he did not recall any derogatory insult by Slaughter other than the term
“poison.” D.E. 21-1, p. 32. In addition, Plaintiff now alleges in his declaration that
Kathleen Patton “made it clear to [him] that she believed [he] was too old to be working
there anymore and that she wanted a younger, faster person” even though Plaintiff stated
during his deposition that he had nothing but “a gut hunch” to support his assertion. D.E.
23-1, p. 3; D.E. 21-1, p. 12.
Consequently, the Court finds no error in the Magistrate Judge’s conclusion
regarding Plaintiff’s declaration.
Doe, 220 F.3d at 386 (“If a party who has been
examined at length on deposition could raise an issue of fact simply by submitting an
affidavit contradicting his own prior testimony, this would greatly diminish the utility of
summary judgment as a procedure for screening out sham issues of fact.”) (quoting
Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)).
Plaintiff’s first objection is OVERRULED.
Second, Plaintiff objects to the Magistrate Judge’s conclusion that the affidavit
of Coastal Bend College President Beatriz Espinoza did not constitute inadmissible
hearsay because her statements were offered only to show the witness’s state of mind.
D.E. 28, p. 7 n.3. Plaintiff argues that “[i]f this is the only basis for the alleged affidavit,
then the defendant has filed nothing to establish a legitimate, non-discriminatory business
reason for the discharge.” D.E. 29, p. 4. Plaintiff’s argument is unpersuasive. In a
discrimination case where “an employer discharges an employee based on the complaint
of another employee, the issue is not the truth or falsity of the allegation, but ‘whether the
employer reasonably believed the employee’s allegation and acted on it in good faith.’”
Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010) (quoting
Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1165-66 (5th Cir. 1993)). As the
Fifth Circuit explained in Waggoner, “the validity of the initial complaint is not the
central issue, because the ultimate falseness of the complaint proves nothing as to the
employer, only as to the complaining employee.” 987 F.2d at 1165.
Espinoza’s affidavit is not evidence for the truth of Patton’s allegations. Rather,
the affidavit is evidence of Espinoza’s state of mind in that she reasonably believed her
subordinate’s allegation and acted on it in good faith.
D.E. 21-6, p. 3 (“With no
improvement in his work Ms. Patton requested termination of Mr. Keller, which I
authorized. Neither Mr. Keller’s age nor race was a factor in my decision to terminate
Mr. Keller’s employment.”). Accordingly, the Court finds no error in the Magistrate
Judge’s conclusion regarding the hearsay issue in the Espinoza affidavit. Plaintiff’s
second objection is OVERRULED.
Third, Plaintiff objects to Espinoza’s affidavit because the Defendant did not
disclose Espinoza as a witness “in any written discovery; nor was her anticipated
testimony summarized.” D.E. 29, p. 2. Plaintiff claims that Federal Rule of Civil
Procedure 37 forbids the admission of Espinoza’s affidavit, arguing that “Rule 37(c)(1)
provides that a party who fails to disclose such information ‘shall not . . . be permitted to
use as evidence at trial, at a hearing, or on a motion any witness or information not so
disclosed.’” D.E. 29, p. 2 (ellipses and emphasis in original) (quoting Texas A&M
Research Foundation v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003))
(quoting Fed. R. Civ. P. 37(c)(1)). However, Espinoza’s affidavit can be admitted into
evidence if the failure to disclose Espinoza is found to be harmless.
In determining whether a violation is harmless, the Court should consider the
following four factors: (1) the importance of the evidence; (2) the prejudice to the
opposing party of including the evidence; (3) the possibility of curing such prejudice by
granting a continuance; and (4) the explanation for the party’s failure to disclose. Texas
A&M Research Foundation, 338 F.3d at 402 (citation omitted). Here, Defendant does
not provide an explanation for its failure to disclose. Furthermore, the evidence is of
particular importance because, as already discussed, Espinoza’s affidavit is the only
evidence establishing her good-faith reason for terminating Plaintiff’s employment.
Moreover, as Plaintiff acknowledged in his deposition, he was unaware that Espinoza had
any input in the decision to terminate his employment—giving him little reason to seek
her deposition during discovery. D.E. 21-1, p. 12.
However, any prejudice to the Plaintiff because of the failure to disclose can be
easily cured. The trial of this case and any remaining deadlines have already been
continued. Therefore, Espinoza can be deposed as previously suggested by Defendant.
D.E. 34, p. 6 n.5. Because any prejudice to Plaintiff caused by Defendant’s failure to
disclose Espinoza as a witness can be cured by deposing Espinoza, the Court finds the
failure to disclose is harmless. Therefore, the Court OVERRULES Plaintiff’s third
The Court ORDERS Defendant to make Espinoza available for deposition.
Plaintiff will have fourteen (14) days from the filing of this order to depose Espinoza and
fourteen (14) days afterward to submit additional evidence in response to Defendant’s
Motion for Summary Judgment, if Plaintiff so chooses.
ORDERED this 9th day of January, 2015.
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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