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Lacey v. Norac, Inc.

United States District Court, E.D. Arkansas, Helena Division

March 30, 2018

VALERIE LACEY and RY'KIA LACEY PLAINTIFFS
v.
NORAC, INC., d/b/a NORAC ADDITIVES DEFENDANT

          OPINION AND ORDER

          Kristine G. Baker United States District Judge.

         Plaintiffs 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).

         I. Factual Background

         Unless 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).

         Norac 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 Norac (Id.).

         Norac 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).

         As 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.).

         In 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).

         In 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.

         On 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).

         II. Motion to Strike

         Before 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.[1] 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 (Id.).

         Under 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.

         However, 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 ...


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