United States District Court, E.D. Kentucky, Central Division, Lexington
DAVID J. STRANGE, Plaintiff,
STRYKER SALES CORPORATION, Defendant.
MEMORANDUM OPINION & ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the Court upon Defendant Stryker Sales Corporation's Motion for Summary Judgment. [DE 17]. Plaintiff David J. Strange has filed a response, [DE 19], and Defendant has filed a reply. [DE 22]. In addition, Defendant Stryker has filed a Motion to Strike Exhibit 17 of Plaintiff's Response, [DE 24], to which Plaintiff has responded, [DE 25], and Defendant has replied. [DE 26]. The Court being otherwise sufficiently advised, the matter is now ripe for the Court's review.
Plaintiff David J. Strange began his employment with Defendant Stryker Sales Corporation on November 17, 2008. By March, 2013, Plaintiff had relocated at Defendant's request from Tennessee to Kentucky and had been promoted three times, ultimately to the position of Senior Field Service Technician in the East Region. [DE 18 at ¶ 1-7]. For the majority of his time at Stryker, Strange was directly supervised by Bryan Vaughn, and Vaughn was supervised by Amanda White, the Regional Integration Services Manager. [DE 18 at ¶ 9-10].
Strange's claims against Defendant are based primarily on four incidents, the first of which took place in October, 2012. Strange, Vaughn, and one of Strange's co-workers, Charles Dabit, participated in a conference call regarding Dabit's recent problems at work. At some point during this call Dabit said: "I'm not going to be doing this (the job of a Field Service Technician) when I'm Dave's age. He's too old to be doing this job." [Strange Deposition Transcript, DE 17-3 at 9; Vaughn Deposition Transcript, DE 17-7 at 9; DE 18 at ¶ 13]. White avers that she later spoke to Dabit about the impropriety of his comment. [DE 18 at ¶ 13]. Plaintiff does not agree or disagree that this occurred; simply stating that he has no knowledge of the fact. [DE 19-2 at ¶ 13].
In April or May of 2013, Strange informed Vaughn and White that he was having issues with bruising on the backs of his legs. The parties do not dispute that Strange did not receive medical treatment other than his doctor's recommendation for occasional exercise. Strange also did not ask for nor require an accommodation for the bruising, other than to ask Vaughn to cover some service in Ohio to avoid long drives, which Vaughn did. [DE 18 at ¶ 15-18].
On June 3, 2013, Plaintiff participated in a conference call with Vaughn and other Field Service Technicians. White was on the call but did not announce herself. During the call, Plaintiff called a particular piece of equipment a "piece of shit" and used the word "retarded." [DE 18 at ¶ 20; DE 19-2 at ¶ 20]. White later emailed Vaughn about these comments and instructed him to give Strange a verbal warning with a written follow-up. Strange apologized to the team during the next call a week later. [DE 18 at ¶ 21-22].
Around this time, in June 2013, White and Vaughn initiated discussions with Strange about whether he might be willing to move to Ohio. [Plaintiff's Depo, DE 17-3 at 64]. On June 19, 2013, Amanda White received an email from a Stryker salesperson complimenting Strange's good work in Kentucky and stating that Strange's time spent in Ohio, rather than in Kentucky, was not good for business. [DE 17-3 at 36]. White emailed Strange, stating "please stop petitioning your sales partners to send me these types of emails" and "it's also clear that you have shared an inappropriate amount of detail with them." Finally, White advised, "If you do not want to move to Ohio, please just tell me or Bryan [Vaughn]." [DE 17-8 at 35].
In response, Plaintiff asked that the Human Resources Department be involved. [DE 17-8 at 35]. The Director of Human Resources initiated an investigation the next day, June 20, 2013, based on Plaintiff's complaints that people were not being held to the same standards for the same issues and that he was being treated differently because of his age and after he had notified his supervisors of the bruising on his legs. [DE 17-6 at 3; DE 17-8 at 41]. The Director concluded the investigation on July 11, 2013, finding that the issues that Plaintiff was concerned about had been handled appropriately but that there were some things that his supervisors could have done differently. [DE 18 at ¶ 23; 17-8, 41-56].
Also in the summer of 2013, Stryker's National Integrations Services Manager, Sujal Patel, conducted a study on the amount of work completed by Field Service Technicians in each region "in order to determine whether that technician lived in a location most conducive to enhancing productivity and customer needs." [DE 17-9 at ¶ 2; DE 18 at ¶ 25-26]. Notably, Plaintiff does not deny that this study exists, but state that he was not aware of it. [DE 19-2 at ¶ 25, 26]. Plaintiff was one of two employees identified, having worked more in Ohio than in Kentucky where he lived. Subsequently, on October 2, 2013, Patel asked Plaintiff to move to Ohio. When he declined, his position was terminated, effective October 18, 2013. [DE 20-13].
Defendant avers that Plaintiff was terminated because Defendant made a business decision to eliminate his position and because he chose not to relocate to Ohio. Strange contends that his dismissal was because of his age, because he was regarded as disabled, and as a result of unlawful retaliation for filing the complaint with HR.
II. Motion to Strike
As an initial matter, Defendant moves to strike Exhibit 17, [DE 21 and 21-1], attached to Plaintiff's Response to the Motion for Summary Judgment. Exhibit 17 is a transcript of a recording of a telephone call between Sara Briggs, the Director of the Human Resources Department at Stryker, and the plaintiff on June 24, 2013.
Plaintiff received a request for production after this suit commenced for "all documents" relating to communications between Plaintiff and Defendant. However, the discovery deadline set by this Court's scheduling order passed on November 28, 2014, without Plaintiff having alerted Defendant to the existence of this transcript and recording. [DE 7]. On December 15, 2014, Plaintiff amended its answers to Defendant's interrogatories to notify them of the existence of the recording and the transcript. [DE 26-1].
Plaintiff argues that Exhibit 17 should not be stricken from the record because the discovery deadline was extended and because Plaintiff produced the exhibit when he "realized it existed." [DE 25]. First, Plaintiff is incorrect as to the extension, the Court granted the parties' motion to hold a deposition after the deadline but very clearly did not extend the deadline for any other reason. [DE 16]. Second, Plaintiff's affidavit attempting to authenticate the transcript confirms that Plaintiff was present for the call, and Plaintiff does not suggest that he somehow did not know that the call was being recorded on his end. Thus, it is clear that the Plaintiff knew of the existence of the recording in June, 2013, and, therefore, his failure to produce it by November 28, 2014, cannot be excused based on a lack of knowledge of its existence. See Fed.R.Civ.P. 16(b)(4) ("A schedule may be modified only for good cause and with the judge's consent.").
Moreover, Defendants are prejudiced to some extent, having learned of the recording and transcript one month before dispositive motions were due but after almost a year of litigation. Plaintiff, on the other hand, does not utilize Exhibit 17 for any material fact or in support of any argument, citing to the transcript once in support of a proposition that is easily established by other documents and undisputed, [DE 19 at 11], and a second time in his statement of material facts, for details that are irrelevant to this Court's analysis. [DE 19-2 at ¶ 24].
Accordingly, the Court will grant Defendant's motion to strike and not rely upon Exhibit 17, [DE 21 and 21-1], in the ...