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Cowboy v. Zinke

United States District Court, D. Arizona

January 30, 2018

David Cowboy, Plaintiff,
v.
Ryan Zinke, Secretary of the U.S. Department of the Interior, Defendant.

          ORDER

          David G. Campbell United States District Judge.

         Plaintiff David Cowboy filed a complaint against Defendant Ryan Zinke in his capacity as Secretary of the U.S. Department of the Interior, alleging discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. Doc. 1; Doc. 45 at 1 n.1.[1] Defendant now moves for summary judgment. Doc. 45. The motion is fully briefed and no party has requested oral argument. For the reasons stated below, the Court will deny the motion.

         I. Preliminary Issues.

         A. Alleged Non-Disclosure of Declarations.

         Plaintiff's opposition to the motion for summary judgement includes declarations of Darnell June (Doc. 53-1), Martha Tate (Doc. 53-2), Dorothy Honyumptewa (Doc. 53-3), Jeannette Honanie (Doc. 53-4), and Linda Tsinnijinnie (Doc. 53-5). Defendant asks the Court to exclude these declarations because none of the information contained in them “was disclosed in [Plaintiff's] initial disclosures or his written discovery responses.” Id. at 2. Specifically, Defendant asserts that Plaintiff's disclosures “stated nothing about statements [Phyllis] Yazzie supposedly made on her first day, allegations of other similarly situated employees, or the purported hiring [of] a string of younger workers to replace older ones.” Id. at 4. Defendant faults Plaintiff for “produc[ing] these Declarations for the first time after discovery closed and during the middle of dispositive motions.” Id.

         Defendant identifies two sources for Plaintiff's disclosure obligation.

         The first is an employment litigation protocol developed by experienced employment litigation counsel with the assistance of the Advisory Committee on the Federal Rules of Civil Procedure. Doc. 54 at 2. The Court's case management order required the parties to comply with the protocols, copies of which were distributed at the case management conference. Doc. 18 ¶ 1.[2] Defendant relies on the obligation in paragraph 3(a) of Plaintiff's production protocols, which required Plaintiff to “[i]dentify persons the plaintiff believes to have knowledge of the facts concerning the claims or defenses at issue in this lawsuit, and a brief description of that knowledge.” These disclosures were to be made in lieu of disclosures under Rule 26(a)(1) of the Federal Rules of Civil Procedure.

         Second, Defendant served interrogatories asking Plaintiff to “[i]dentify each and every individual having knowledge of the discriminatory incidents and events at issue in this lawsuit, ” including “[a] description of the knowledge possessed by each individual.” Doc. 56-3 at 9. The interrogatory specifically stated that it was “designed to elicit a more expansive response than the names provided pursuant to Rule 26(a)(1)(A)(i).” Id.

         Plaintiff made his initial disclosures under the employment protocols on November 2, 2016. Doc. 56-2. The disclosures identified 15 people who had knowledge of the case, including four of the five witnesses who signed declarations attached to Plaintiff's response: Linda Tsinnijinnie, Darnell June, Dorothy Honyumptewa, and Jeannette Honanie. Id. at 4. The disclosures stated that “[a]ll of these witnesses have knowledge of the Age Discrimination, the ‘Non-Renewal' of my contract, being replaced by a young person[, ] and the demotion due to my age.” Id. at 5. The disclosures did not identify Martha Tate, the fifth declarant. See Id. at 4-5.

         Plaintiff responded to Defendant's interrogatories on December 5, 2016, and identified 11 people with knowledge of the alleged discrimination. This list included Linda Tsinniginnie, Dorothy Honyumptewa, Jeannette Honanie, and Martha Tate, but omitted Darnell June, even though he had been identified in the initial disclosures. Doc. 56-3 at 9-12. Plaintiff provided a one-paragraph description of each individual's relevant knowledge. Id.

         The Court cannot conclude that the declarations of Linda Tsinnijinnie, Darnell June, Dorothy Honyumptewa, or Jeannette Honanie should be excluded on the basis of Plaintiff's initial disclosures. The employment protocols required Plaintiff to identify persons with knowledge about the case and to provide “a brief description of that knowledge, ” and Plaintiff complied with respect to these four witnesses. He identified them and stated that they all “have knowledge of the Age Discrimination, the ‘Non-Renewal' of my contract, being replaced by a young person[, ] and the demotion due to my age.” Doc. 56-2 at 5. This was indeed a brief description, but the protocols required no more.

         Defendant's interrogatories sought more information, but were still phrased only in general terms. They sought the identity of “every individual having knowledge of the discriminatory incidents and events at issue in this lawsuit, ” but then asked only for “[a] description of the knowledge possessed by each individual.” Doc. 56-3 at 9. Defendant did not ask for a detailed description of the testimony each witness might provide, nor did he ask whether any witness had or would provide a declaration in this case. See Doc. 56-3.

         The purpose of the employment protocol disclosures was to identify witnesses with relevant information and enable Defendant to decide whether to depose them. That is the same purpose as the initial disclosures required by Rule 26(a)(1), as courts have noted. See Poitra v. Sch. Dist. No. 1 in the Cty. of Denver, 311 F.R.D. 659, 664 (D. Colo. 2015) (“‘Indicating briefly the general topics on which such persons have information should not be burdensome, and will assist other parties in deciding which depositions will actually be needed.'” (quoting Fed.R.Civ.P. 26(a) advisory committee's note to 1993 amendment)). By requiring only a “brief description” of the witnesses' knowledge, the employment protocols did not call for detailed disclosures.

         Defendant's interrogatories requested more information, but they were not specific. They asked for only “[a] description of the knowledge possessed by each individual.” Doc. 56-3 at 9. They did state that they sought to “elicit a more expansive response than the names provided pursuant to Rule 26(a)(1)(A)(I), ” but this was ambiguous. By requesting the name of every individual with knowledge, the interrogatories already were seeking more information than Rule 26(a)(1), which requires disclosure only of persons Plaintiff “may use” to support his claims. Fed.R.Civ.P. 26(a)(1)(A)(i). If Defendant meant that he was seeking “a more expansive” description of what the witnesses knew, he did not say so clearly. He sought “a more expansive response than the names” required by Rule 26(a)(1), and requested only a “description” of their “knowledge.” Doc. 56-3 at 9 (emphasis added).

         The Court will not exclude the declarations of Linda Tsinnijinnie, Darnell June, Dorothy Honyumptewa, and Jeannette Honanie on the basis of nondisclosure. Plaintiff identified each of these witnesses in his initial disclosures and told Defendant that they had knowledge of the age discrimination alleged in the case. Doc. 56-2 at 4-5. Plaintiff provided a more complete description of the knowledge of three of these witnesses in his interrogatory responses - Tsinnijinnie, Honyumptewa, and Honanie. Doc. 56-3 at 9-12. Although Plaintiff omitted Darnell June from those responses (id.), he already had identified June as a person with knowledge of the alleged discrimination (Doc. 56-2 at 4-5.). Defendant apparently did not seek clarification when June was omitted from the interrogatory responses.

         Defendant chose not to depose any of these four witnesses despite their having been identified early in the discovery process as persons with knowledge of the alleged age discrimination. Defendant cites no authority for the proposition that witnesses can be precluded from testifying because the precise details of their testimony were not included in initial disclosures or in response to an interrogatory seeking only a “description of the knowledge” they possessed. Defendant cites two cases in support of his argument, but each concerned witnesses who were never identified during discovery. See Poitra, 311 F.R.D. at 664 (“It is undisputed that Plaintiff Poitra did not include Ms. Ortega in his initial Rule 26(a)(1) disclosures or in any written supplemental disclosure provided to Defendants prior to the final pretrial conference”); Smith v. Aurora Pub. Sch., 318 F.R.D. 429, 430 (D. Colo. 2016) (plaintiff's response to summary judgment motion “included affidavits from seven individuals she had never disclosed under Federal Rule of Civil Procedure 26(a)(1)(A)(i) or 26(e)”). Witnesses Tsinnijinnie, Honyumptewa, Honanie, and June were disclosed, as was a general description of their knowledge, and Defendant identifies no other discovery request that sought the specific information contained in their declarations. The Court also notes that the declarations are dated October 5 and 6, 2017 - after Defendant's summary judgment motion had been filed. The declarations thus were not in existence during the discovery period, and the Court can no more forbid Plaintiff from obtaining declarations from them for purposes of opposing summary judgment than it could preclude him from calling them to testify at trial. If Defendant wanted to know the details of what these witnesses would say, he could have deposed them or served more specific written discovery requests.

         Martha Tate is different. Plaintiff did not identify her in his initial disclosures and therefore did not assert that she generally had knowledge of the alleged age discrimination. See Doc. 56-2 at 4-5. Plaintiff did include her in his interrogatory responses, but provided a very narrow description of her knowledge: “Martha Tate was a School Board Member for Shonto School. Martha witnessed the ELO Adson making a statement during orientation of the school year 2010 at Greyhill High School Auditorium[.]” Doc. 56-3 at 12. Ms. Tate's declaration concerns matters well outside this narrow description: statements made by Phyllis Yazzie at a staff orientation meeting in August 2010, and Ms. Yazzie's discriminatory actions while Tate was at the Kaibeto school. Doc. 53-2 at 1-2. Because Defendant was never apprised of this area of knowledge and was never told that Tate had knowledge of the alleged age discrimination generally, the Court concludes that Defendant was never afforded a fair opportunity to decide whether to depose her. The Court finds that the failure to make this disclosure was neither substantially justified nor harmless, and therefore will not consider the Tate declaration. Fed.R.Civ.P. 37(c)(1).

         B. Other Alleged Defects in the Declarations.

         Defendant also asks the Court to disregard the declarations because “they are conclusory, lack foundation, are not based on personal knowledge, and contain opinions.” Doc. 54 at 5. A trial court may consider only admissible evidence in ruling on a motion for summary judgment. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). The evidence may be submitted in a declaration, which would itself be inadmissible hearsay at trial, but the declaration or the party presenting it must demonstrate that the declarant could present the evidence in admissible form at trial. See JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (“a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial”); Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents.”). Thus, “[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         The Court will consider the Tsinnijinnie, Honyumptewa, Honanie, and June declarations, but only insofar as the testimony could be submitted in admissible form at trial. The Court finds many instances of inadequate foundation, vague assertions, unsupported opinions, and irrelevant facts in the declarations. In the portion of this order that follows, the Court will cite only to those portions of the declarations that are “made on personal knowledge, set out facts that ...


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