Nygren v. Perry ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHRISTOPHER W. NYGREN,
Plaintiff-Appellant,
v.
No. 95-2001
WILLIAM J. PERRY, Secretary of
Defense,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-94-915-A)
Submitted: October 29, 1996
Decided: November 18, 1996
Before HALL and MOTZ, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David H. Shapiro, SWICK & SHAPIRO, P.C., Washington, D.C., for
Appellant. Helen F. Fahey, United States Attorney, Rachel C. Ballow,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Christopher W. Nygren brought suit under Title VII, 42 U.S.C.A.
§ 2000e (West 1994), against his former employer, Defense Systems
Management College (College), alleging that he was terminated due
to discrimination on account of his religion and his wife's religion
and national origin and suffered resulting retaliation. The jury found
in favor of the College on the discrimination claim, and Nygren now
appeals that verdict. For the reasons discussed below, we affirm.
At trial, the College called Nygren's wife, Denise, to testify.
Nygren objected, but the court permitted the testimony. The College
subsequently called former College Commandant General Cabell to
impeach Ms. Nygren. Following his testimony, Nygren moved to
strike the testimony of both witnesses. The court denied the motion.
After the jury found in favor of the College on the discrimination
charge, Nygren moved for a new trial, citing the above testimony. The
court also denied that motion.
Nygren first contends that the district court erred in permitting the
College to impeach Denise Nygren with the testimony of General
Cabell. Citing Fed. R. Evid. 608(b), he maintains that the College
impermissibly impeached Ms. Nygren with extrinsic evidence on an
issue collateral to the main issue at trial. We review a district court's
evidentiary and procedural rulings for abuse of discretion. Persinger
v. Norfolk & W. Ry., 920 F.2d 1185, 1187 (4th Cir. 1990); Gill v. Rol-
lins Protective Servs., 836 F.2d 194, 196 (4th Cir. 1987).
Nygren's first contention lacks merit because the testimony of
Denise Nygren addressed the central issue in the case and was not a
collateral matter. When called to the stand by the College, Ms.
Nygren testified about a conversation she had with General Cabell,
the former Commandant of the College. She stated that in the course
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of a conversation about her husband's trouble at the College, Cabell
warned her that there was anti-Semitism at the College and that cer-
tain colleagues would not accept a dinner invitation to her Jewish
home. Cabell subsequently testified that he had no recollection of that
conversation, and was not aware of anti-Semitism at the College dur-
ing his tenure there.
Cabell's testimony concerning anti-Semitism on campus was
entirely permissible because it goes to the heart of Nygren's discrimi-
nation claim. We have held that "Rule 608(b) should not be read so
broadly as to disallow the presentation of extrinsic evidence that is
probative of a material issue in a case." United States v. Smith Grad-
ing & Paving, 760 F.2d 527, 531 (4th Cir.), cert. denied, 474 U.S.
1005 (1985). Interfering with the admission of such extrinsic evidence
would be inconsistent with "the goal of ascertaining the truth in judi-
cial proceedings." Id. Certainly the issue of anti-Semitism on campus
raised in Denise Nygren's testimony was central to the issue of the
College's motives for terminating her husband. Consequently, the dis-
trict court properly exercised its discretion in allowing Cabell's con-
tradictory testimony.
Nygren also maintains that the district court erred in permitting the
College to call Denise Nygren to the stand as a witness in its case. He
contends that the College should not have been permitted to call her
because it failed to list her as a witness and summarize her testimony
in response to an interrogatory asking the College to identify all non-
expert or fact witnesses. Further, Nygren points out that the court's
scheduling order states that witnesses who have not been identified in
response to a proper request would not be permitted to testify. He
maintains that the court should have sanctioned the College pursuant
to Fed. R. Civ. P. 26 & 37 for not identifying Ms. Nygren as a wit-
ness.
The power to impose sanctions for failure to comply with court
orders regarding discovery is discretionary with the district court.
Wilson v. Volkswagen of Am., 561 F.2d 494, 503 (4th Cir. 1977), cert.
denied, 434 U.S. 1020 (1978). A review of the circumstances in this
case makes it clear that the district court did not abuse its discretion
in permitting the defense to call Ms. Nygren as a witness.
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First, Ms. Nygren ceased testifying for her husband in tears and
was permitted to step down subject to recall. When the court allowed
the College to call her in its case, it strictly limited her testimony to
relevant issues. In addition, the College's explanation for not answer-
ing the interrogatory was not unreasonable. It viewed Ms. Nygren,
rightly or wrongly, as an impeachment witness and thus did not feel
compelled to list her in response to the interrogatory. Moreover, the
College did include her in its pre-trial witness list. Her expected testi-
mony, it turned out, was based upon information she had provided in
an affidavit submitted by Nygren in response to a motion for sum-
mary judgment. Nothing in the record suggests the College was
attempting to hijack the case through an intentional deception.
Finally, the testimony was directly relevant to Nygren's allegations.
The district court thus acted properly within the bounds of its discre-
tion in permitting the testimony at trial.
Accordingly, we affirm the jury's verdict in favor of the College.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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