United States District Court, E.D. Arkansas, Helena Division
OPINION AND ORDER
Kristine G. Baker United States District Judge.
Valerie Lacey and Ry'Kia Lacey bring this action against
defendant Norac, Inc., d/b/a Norac Additives
(“Norac”) and allege retaliation claims under
Title VII of the Civil Rights Act of 1964, as amended
(“Title VII”), 42 U.S.C. § 2000e et
seq., and the Arkansas Civil Rights Act
(“ACRA”), Ark. Code Ann. § 16-123-101 et
seq. Before the Court are Norac's motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56 (Dkt.
No. 15) and plaintiffs' motion to strike an exhibit to
Norac's motion for summary judgment (Dkt. No. 22).
Plaintiffs timely responded to Norac's motion for summary
judgment (Dkt. No. 21), and Norac filed a timely reply (Dkt.
No. 23). Norac also timely responded to plaintiffs'
motion to strike (Dkt. No. 24). After reviewing the materials
submitted by both parties, the motion to strike is denied
(Dkt. No. 22). The Court grants Norac's motion for
summary judgment on Ms. Valerie Lacey and Ms. Ry'Kia
Lacey's claims (Dkt. No. 15).
otherwise noted, the following facts are taken from
Norac's statement of facts (Dkt. No. 17) and
plaintiffs' response to Norac's statement of facts
(Dkt. No. 20).
manufactures chemical additives for certain plastic products
(Id., ¶ 3). Its headquarters is in California,
and it operates a plant in Helena, Arkansas (Id.).
Plaintiff Valerie Lacey, who is an African American female,
is a former Norac employee (Id., ¶ 4). She
worked for Norac from April 2014 until December 2, 2014, at
the Helena plant (Id.). Plaintiff Ry'Kia Lacey,
who is an African American female, is a former temporary
worker assigned by a staffing agency to work at Norac's
Helena plant in 2014 (Id., ¶ 5). She is also
Ms. Valerie Lacey's daughter (Id.). Ms.
Ry'Kia Lacey was assigned to work as the receptionist for
contends that, in September 2014, it decided it wanted to
reorganize the front office at its Helena plant, transfer
some job duties back to California, and lay off three Norac
employees and end the assignment of a temporary worker
(Id., ¶ 6). Norac asserts that, in September
2014, it selected Kesheanna Jackson, Ms. Valerie Lacey, and
Danielle Rose, who is a Caucasian employee, as the three
Norac employees to lay off (Id.). Norac terminated
Ms. Jackson, Ms. Valerie Lacey, and Ms. Rose on December 2,
2014 (Dkt. No. 17, ¶ 9.). As a result, Ms. Jackson filed
a lawsuit against Norac, Kesheanna Jackson v. Norac,
Inc., No. 2:15-cv-00125-DPM (“the Jackson
lawsuit”) (Dkt. No. 17, ¶ 2). In the
Jackson lawsuit, Ms. Jackson, who is an
African-American female, amended her complaint and alleged
that her December 2, 2014, termination was in retaliation for
a previous Equal Employment Opportunity Commission Charge
(“EEOC”) (Id.). District Court Judge
D.P. Marshall granted Norac's motion for summary judgment
in the Jackson case, and the Eighth Circuit Court of
Appeals affirmed. Jackson v. Norac, Inc., 685 Fed.
App'x. 510 (8th Cir. 2010).
proof that it decided to lay off these employees in September
2014, Norac attaches Exhibits 5-B, 5-C, and 5-D to its motion
for summary judgment (Dkt. Nos. 15-5, at 3-5). Exhibits 5-B
and 5-C are memos putatively authored by Norac's owner,
Wally McCloskey, on September 18, 2014, which state in
pertinent part that “[Norac] will move most . . .
accounting activities that are handled in Helena . . . to
California, ” and that the “duties that will
remain in the Helena office would best be performed by Wendy,
Pam, and Kristen . . . .” (Dkt. No. 15-5, at 3-4).
Norac also submitted Exhibit 5-D, an undated document which
allegedly shows that Ms. Valerie Lacey's position was
assigned to Pam Payne, Norac's office manager
(Id., at 5). Norac states that, during the lawsuit
filed by former employee Ms. Jackson,, Exhibits 5-B, 5-C, and
5-D were produced to Ms. Jackson's counsel, Robert
Kinchen, who also represents plaintiffs in this case
(Id., ¶ 10). Norac further argues that the same
exhibits were provided to the EEOC in response to the
separate EEOC charges filed by plaintiffs (Id.).
further support of its motion for summary judgment, Norac
submits an email, dated September 21, 2014, marked as Exhibit
9, between Mr. McCloskey and Norac's counsel allegedly
contemplating Ms. Valerie Lacey's layoff (Dkt. No. 15-9).
Plaintiffs disagree with Norac's proffered timeline,
pointing out that Exhibits 5-C and 5-D are undated (Dkt. No.
20, at 4). They also object to Exhibit 9 and ask that the
Court not consider it because Norac allegedly did not produce
it during discovery (Dkt. No. 20, at 2-3).
October 2014, Ms. Jackson filed her lawsuit against Norac
alleging race and gender discrimination and harassment under
Title VII and the ACRA (Dkt. No. 17, ¶ 7). Norac
contends that, “[i]n November 2014, Norac decided to
interview, through its counsel, employees who might be
witnesses in the Jackson lawsuit (Id.,
¶ 8). Norac alleges that it interviewed Ms. Valerie
Lacey, Ms. Rose, Ms. Payne who is an African American female,
Kristen Gregory who is a Caucasian female, and Wendy Fletcher
who is a Caucasian female (Id.). Subsequently, Norac
supposedly drafted affidavits and presented the draft
affidavits to the employees to review and sign
(Id.). Norac avers that Ms. Rose, Ms. Gregory, and
Ms. Fletcher signed their affidavits, making few or no
changes (Id.; Dkt. Nos. 15-6, 15-7, 15-8). Norac
also claims that Ms. Valerie Lacey and Ms. Payne did not sign
their affidavits (Dkt. No. 17, ¶ 8). According to Norac,
Ms. Valerie Lacey edited her draft affidavit by hand, but
Norac did not follow-up with her (Id.; see
Dkt. No. 15-5, at 16-18). Plaintiffs disagree, contending
that, “Norac scheduled a follow-up meeting with [Ms.
Valerie] Lacey after she edited the affidavit.” (Dkt.
No. 20, at 3). Ms. Valerie Lacey asserts that she refused to
attend the final meeting with Norac's attorney alone and
insisted that Ms. Payne sit in with her (Id.).
Furthermore, plaintiffs claim that Ms. Payne observed that
Norac's attorney was upset that Ms. Valerie Lacey did not
sign the proposed affidavit (Id.). Ms. Valerie Lacey
never signed an affidavit.
December 2, 2014, Norac announced its decision to lay off Ms.
Jackson, Ms. Valerie Lacey, and Ms. Rose, as well as its
decision to end Ms. Ry'Kia Lacey's temporary
assignment (Dkt. No. 17, ¶ 9). Ms. Valerie Lacey and Ms.
Ry'Kia Lacey both filed charges with the EEOC (Dkt. No.
15-5, at 1, 14). Ms. Valerie Lacey claims that she was fired
for refusing to sign the affidavit related to Ms.
Jackson's lawsuit, and Ms. Ry'Kia Lacey contends that
she was fired for her relationship with Ms. Valerie Lacey
(Id.). They filed the present complaint on January
27, 2016 (Dkt. No. 1).
Motion to Strike
discussing the motion for summary judgment, the Court must
first address the pending motion to strike filed by Ms.
Valerie Lacey and Ms. Ry'Kia Lacey (Dkt. No. 22).
Plaintiffs argue that Exhibit 9 to Norac's motion for
summary judgment (Dkt. No. 15-9) should be struck from the
record and excluded from consideration in this
case. Specifically, Ms. Valerie Lacey and Mr.
Ry'Kia Lacey point out that Exhibit 9 was not produced as
part of Norac's initial disclosures, nor did Norac
produce Exhibit 9 in response to plaintiffs'
interrogatories and requests for production (Dkt. No. 22,
¶ 3). Rather, according to plaintiffs, Norac first
produced Exhibit 9 as an attachment to the motion for summary
judgment (Id., ¶ 1). Plaintiffs argue that this
last-minute production violates Federal Rule of Civil
Procedure 26, and therefore Exhibit 9 should be struck from
the record. In response, Norac contends that it introduced
Exhibit 9 to counter plaintiffs' argument, made during a
February 14, 2017, deposition, that Norac's other
documents were falsified (Dkt. No. 24, ¶¶ 1-2).
Norac also argues that Exhibit 9 “conclusively
proves” that Ms. Valerie Lacey and Ms. Ry'Kia Lacey
were not retaliated against (Id., ¶ 4). Norac
contends that its late disclosure is harmless to plaintiffs
the Federal Rules of Civil Procedure, each party must
“supplement or correct its disclosure or response . . .
in a timely manner . . . if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process . . . .”
Fed.R.Civ.P. 26(e)(1)(A). In the event a party fails to
supplement its discovery responses, “the party is not
allowed to use that information . . . unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
37(c)(1). The Court extended the discovery deadline in this
case to February 22, 2017, at the request of the parties
(Dkt. No. 14). By Norac's own admission, plaintiffs'
allegation of falsified documents was made during a February
14, 2017, deposition. Norac could have supplemented its
production with Exhibit 9 before the discovery deadline.
the Court will not strike Exhibit 9 for two reasons. First,
by deciding to waive its privilege as to Exhibit 9, Norac
produced information that otherwise had been made known
already to the other parties during the discovery process.
Exhibit 9 contains no new substantive information that bears
on the merits of this litigation because previously Norac
produced Exhibits 5B, 5C, and 5D to plaintiffs, with Exhibit