Yolanda J. Faulk v. Volunteers of America, North Alabama, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15103 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 24, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:08-cv-00591-SLB
YOLANDA J. FAULK,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
VOLUNTEERS OF AMERICA, NORTH ALABAMA, INC.,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(August 24, 2011)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Yolanda Faulk appeals the district court’s grant of summary judgment in
favor of Volunteers of America, North Alabama, Inc. (“VOA”), as to her
discrimination, retaliation, and hostile work environment claims under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the
Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; and as to her
state law claims for age discrimination and negligent hiring, training, supervision,
and retention. Faulk raises three issues on appeal. First, she argues the district
court abused its discretion by striking the declarations of five former VOA
employees, pursuant to Federal Rule of Civil Procedure 37(c). Second, she argues
the district court abused its discretion by striking Faulk’s own declaration.
Finally, Faulk argues that the district court’s summary judgment analysis was
flawed because it ignored evidence and failed to draw all inferences in her favor.1
I.
We review a district court’s decision to strike an affidavit for abuse of
discretion. Hall v. United Ins. Co. of Amer., 367 F.3d 1255, 1259 (11th Cir.
2004). We review the exclusion of evidence, based on Federal Rule of Civil
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Faulk also suggests that we consider the district court’s alleged errors in sanctioning her
counsel, arguing that the district court’s sanctions determination tainted and prejudiced its
substantive analysis of the summary judgment motion. We decline to consider these arguments
because she failed to raise the issue of judicial bias before the district court. See Access Now,
Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–32 (11th Cir. 2004) (stating that, in the absence of
special circumstances, we will not consider an issue raised for the first time on appeal). We note
that a sanctions order against counsel, without more, is ordinarily insufficient to show that the
court was biased. See Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001) (“[A]dverse rulings
alone do not provide a party with a basis for holding that the court’s impartiality is in doubt.”).
2
Procedure 26 violations, for an abuse of discretion. Cooper v. S. Co., 390 F.3d
695, 728 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc.,
546 U.S. 454, 456–58, 126 S. Ct. 1195 (2006). Additionally, we review for abuse
of discretion the “exclusion of a witness not listed on the pretrial order for abuse
of discretion, and consider: (1) the importance of the testimony; (2) the reason for
the appellant’s failure to disclose the witness earlier; and (3) the prejudice to the
opposing party if the witness had been allowed to testify.” Bearint ex rel. Bearint
v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004).
Each party is required to disclose the names of individuals likely to have
discoverable information that the party may use to support its claims or defenses.
Fed. R. Civ. P. 26(a)(1)(A)(i). Parties are required to supplement incomplete Rule
26(a) disclosures. Fed. R. Civ. P. 26(e)(1). A party who fails to comply with Rule
26(a) or (e) is precluded from using the undisclosed 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 concluded that, when a party fails to comply with
Rule 26, the district court does not abuse its discretion by striking an affidavit
submitted in opposition to summary judgment, pursuant to Rule 37(c). See
Cooper, 390 F.3d at 728.
3
Recognizing that parties may try to escape summary judgment by using
affidavits to create issues of fact where none existed, we have allowed an affidavit
to be disregarded as a “sham” if it flatly contradicts earlier deposition testimony
without valid explanation. Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736
F.2d 656, 657 (11th Cir. 1984). “When a party has given clear answers to
unambiguous questions which negate the existence of any genuine issue of
material fact, that party cannot thereafter create such an issue with an affidavit that
merely contradicts, without explanation, previously given clear testimony.” Id.But the court must be careful to distinguish “between discrepancies which create
transparent shams and discrepancies which create an issue of credibility or go to
the weight of the evidence.” Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th
Cir. 1986).
[E]very discrepancy contained in an affidavit does not
justify a district court’s refusal to give credence to such
evidence. In light of the jury’s role in resolving questions
of credibility, a district court should not reject the content
of an affidavit even if it is at odds with statements made in
an early deposition.
Id. at 954 (quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.
1980)) (alteration in original) (citation omitted).
4
Here, Faulk did not list the five individuals who submitted declarations as
potential witnesses in her initial disclosure, nor did she supplement her
disclosures. She failed to explain her omission, and the record reveals that VOA
would not have known that Faulk was relying upon information from these
individuals. As a result, the district court did not abuse his discretion by striking
the five declarations.
Additionally, Faulk gave clear answers to unambiguous questions in her
deposition that negated the existence of genuine issues of material fact relating to
certain instances of discrimination. But Faulk’s declaration contradicted these
statements, and she does not explain these inconsistencies. Moreover, the
differences between Faulk’s deposition and her declaration go beyond a few
isolated inconsistencies; instead, her declaration conspicuously attempted to
substantiate each and every claim that her deposition testimony left lacking.
Therefore, the district court did not abuse its discretion in striking portions of
Faulk’s declaration to the extent it flatly contradicted her prior testimony.
II.
We review a district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court. Johnson v. Bd. of Regents of
Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). We draw all factual
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inferences in a light most favorable to the non-moving party. Id. at 1242–43.
Summary judgment is appropriate where “there is no genuine issue as to any
material fact and . . . the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c)(2).
Faulk fails to cite a specific instance where the court did not draw an
inference in her favor and does not expressly challenge the court’s reasoning with
respect to her specific claims. After our review of the record, we discern no error
in the court’s analysis. Faulk failed to establish a prima facie case for any of her
varied claims, except perhaps those alleging age and race discrimination based on
her termination. In support of those claims, Faulk alleged that she had seen a
young, white woman out in the community with her former clients; she did not
know the woman’s identity. Even assuming, arguendo, this is enough to establish
a prima facie case for discrimination, Faulk’s claims fail under the McDonnell
Douglas burden-shifting analysis2 because she did not show that VOA’s
legitimate, nondiscriminatory reasons for terminating her3 were pretextual.
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
3
Among other things, VOA received reports that Faulk left her developmentally
challenged clients unattended at a concert, and that she told a client he was going to hell because
he was gay.
6
Therefore, the district court did not err in granting VOA’s motion for summary
judgment, and we affirm.
AFFIRMED.
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