Bobby Kinser v. UMAR , 613 F. App'x 209 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1955
BOBBY J. KINSER,
Plaintiff - Appellant,
v.
UNITED METHODIST AGENCY FOR THE RETARDED - WESTERN NORTH
CAROLINA, INC., d/b/a UMAR,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cv-00175-RJC-DCK)
Submitted: April 28, 2015 Decided: May 27, 2015
Before SHEDD, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Todd J. Combs, COMBS LAW, PLLC, Mooresville, North Carolina, for
Appellant. John D. Cole, Sr., Jonathan E. Schulz, NEXSEN PRUET,
PLLC, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby J. Kinser appeals the district court’s order granting
summary judgment to his former employer, United Methodist Agency
for the Retarded—Western North Carolina, Inc. (“UMAR”), as well
as granting UMAR’s motion to strike, in his suit alleging sex
and age discrimination, in violation of, respectively, Title VII
of the Civil Rights Act of 1964 (“Title VII”) 1 and the Age
Discrimination in Employment Act of 1967 (“ADEA”). 2 We affirm. 3
Kinser challenges the district court’s decision to strike
three affidavits. We review for abuse of discretion a district
court’s decision to strike an affidavit submitted in support of
a party’s opposition to summary judgment; however, we review the
factual determinations underlying that decision for clear error.
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th
Cir. 1996).
Parties must disclose, “without awaiting a discovery
request, . . . the name . . . of each individual likely to have
discoverable information . . . that the disclosing party may use
1
42 U.S.C. §§ 2000e to 2000e-17 (2012).
2
29 U.S.C. §§ 621 to 634 (2012).
3
The district court also granted summary judgment to UMAR
on Kinser’s claim for wrongful discharge under North Carolina
employment law. Because Kinser does not challenge on appeal the
grant of summary judgment on his state-law claim, we do not
review it. See In re Under Seal, 749 F.3d 276, 292 (4th Cir.
2014).
2
to support its claims.” Fed. R. Civ. P. 26(a)(1)(A)(i), (C),
(e)(1)(A). “If a party fails to . . . identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use
that . . . witness to supply evidence on a motion, . . . unless
the failure was substantially justified or is harmless.” Fed.
R. Civ. P. 37(c)(1). We have stated that, “[i]n determining
whether a party’s non-disclosure is substantially justified or
harmless, thereby excusing a disclosure violation, a district
court is guided by the . . . factors . . . [set forth in S.
States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d
592 (4th Cir. 2003)].” Russell v. Absolute Collection Servs.,
Inc., 763 F.3d 385, 396-97 (4th Cir. 2014).
Our review of the record demonstrates that the district
court correctly determined that Kinser failed to timely disclose
one affiant’s identity. See 6 James Wm. Moore et al., Moore’s
Federal Practice § 26.22(4)(a)(i) (3d ed. 2015). We conclude,
as did the district court, that Kinser’s attempts to distinguish
the circumstances of his case from those in which an affidavit
has been properly disregarded are unavailing. See Carr v.
Deeds, 453 F.3d 593, 604 (4th Cir. 2006), abrogated on other
grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); Rambus, Inc. v.
Infineon Techs. AG, 145 F. Supp. 2d 721, 734-35 (E.D. Va. 2001),
cited with approval in S. States Rack & Fixture, Inc., 318 F.3d
at 596-97.
3
The district court also struck two other affidavits offered
by Kinser because it determined that the affiants’ averments
were inconsistent with their prior deposition testimony. At the
summary judgment stage, if an affidavit is inconsistent with the
affiant’s prior deposition testimony, courts may disregard the
affidavit pursuant to the sham-affidavit rule. See Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); In re Family
Dollar FLSA Litig., 637 F.3d 508, 512 (4th Cir. 2011);
Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975-76 (4th Cir.
1990). “[F]or the [sham-affidavit] rule . . . to apply, there
must be a bona fide inconsistency” between an affiant’s
averments and his deposition testimony. Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 185 n.7 (4th Cir. 2001). We conclude that
the district court did not clearly err in finding that the two
affidavits at issue were inconsistent with the testimony of the
affiants. See id.; Rohrbough, 916 F.2d at 975-76. Also without
merit are Kinser’s challenges to the district court’s
determination that the inconsistencies warranted disregarding
the two affidavits. See Stevenson v. City of Seat Pleasant, 743
F.3d 411, 422 (4th Cir. 2014); Malbon v. Pa. Millers Mut. Ins.
Co., 636 F.2d 936, 939 n.8 (4th Cir. 1980). Accordingly, the
4
district court did not abuse its discretion by striking the
three affidavits. 4
Turning to Kinser’s Title VII and ADEA claims, we review de
novo a district court’s order granting summary judgment.
Jacobs v. N.C. Admin. Office of the Cts., 780 F.3d 562, 565 n.1
(4th Cir. 2015). “A district court ‘shall grant summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.’” Id. at 568 (quoting Fed. R. Civ. P. 56(a)).
In determining whether a genuine issue of material fact exists,
“we view the facts and all justifiable inferences arising
therefrom in the light most favorable to . . . the nonmoving
party.” Id. at 565 n.1 (internal quotation marks omitted).
However, “[c]onclusory or speculative allegations do not
suffice, nor does a mere scintilla of evidence in support of
[the nonmoving party’s] case.” Thompson v. Potomac Elec. Power
Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks
omitted).
Kinser presented no direct evidence of age or gender
discrimination; we therefore analyze his claim under the burden-
4
The district court’s order also appears to have struck any
reference to an arrest of one of UMAR’s employees. Even if the
district court may have erred by striking these references, any
such error is harmless.
5
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973). 5 See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000); Mereish v. Walker, 359 F.3d 330,
334 (4th Cir. 2004). To prevail under the McDonnell Douglas
framework, Kinser first must establish a prima facie case. See
Gerner v. Cnty. of Chesterfield, 674 F.3d 264, 266 (4th Cir.
2012) (Title VII); Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc) (ADEA). If
Kinser establishes a prima facie case, the burden of production
shifts to UMAR to articulate a legitimate, nondiscriminatory
reason for its actions. Hill, 354 F.3d at 285. Once UMAR has
met its burden, Kinser must demonstrate that UMAR’s proffered
reason is a mere pretext for discrimination. Id.
The district court correctly determined that Kinser failed
to establish a prima facie case under the ADEA because he
offered no evidence demonstrating that he had been replaced by a
substantially younger person. See Hill, 354 F.3d at 285. Nor,
with regard to his Title VII claim, did he demonstrate that a
similarly situated female employee was treated more favorably
than he was. See Gerner, 674 F.3d at 266. Even if Kinser had
5
On appeal, Kinser states that he presented direct evidence
of sex discrimination; however, he does not identify this
evidence, and he analyzes his claim, as do we, only under the
McDonnell Douglas framework.
6
established a prima facie case, the district court properly
found that he failed to demonstrate UMAR’s legitimate,
nondiscriminatory reasons for his discharge were pretextual.
See Reeves, 530 U.S. at 143 (providing that plaintiff may
establish pretext “by showing that the employer’s proffered
explanation is unworthy of credence” (internal quotation marks
omitted)).
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
7