United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge United States District
case is before the Court on a number of interrelated motions
and objections. First, Plaintiff moved to compel a large
amount of discovery. The magistrate denied that motion,
finding Plaintiff had not demonstrated good cause for
modifying the Court's scheduling order-a conclusion to
which Plaintiff objects. Around the same time, Defendant
moved for summary judgment. Plaintiff filed three separate
motions for an extension of time to respond to that motion.
Ultimately, finding lack of good cause, the Court will
overrule the objections to the magistrate's order and
deny the various motions for an extension of
time. Addressing the motion for summary judgment
as unopposed, but undertaking a thorough examination of the
record, the Court will grant the motion.
Factual and Procedural Background
Jonathan Layman joined Defendant United Parcel Service, Inc.
(“UPS”) as a Plant Engineering Specialist in
Louisville, Kentucky in April of 2014. DN 28-2 at
At that time, Layman was provided copies of, and training
regarding, UPS's Code of Business Conduct, Policy Book,
and Equal Employment Opportunity policies. DN 28-3 at 3. The
policies included information about UPS's Business
Compliance & Ethics Questionnaire
(“Questionnaire”). DN 28-2 at 13. The
Questionnaire is designed to ensure awareness of UPS's
business ethics and compliance policy and seeks disclosure of
known or suspected policy violations. Id. at 21. UPS
requires all full-time managers, supervisors, and
professional specialists worldwide to complete the
Questionnaire, typically in the middle of the year.
Id. at 13. The requirement to complete the
Questionnaire was described during new employee orientation
and posted on UPS's intranet, with emails sent as
reminders. DN 28-3 at 3.
Layman was hired partway into 2014, he was not required to
complete the 2014 Questionnaire. DN 28-2 at 40. Layman
completed his first Questionnaire in September 2015.
Id. In it, he disclosed some concern that private
information about him had been distributed at work with
subsequent retaliation for registering those complaints.
Id. Contemporaneously, he submitted a written
statement to UPS's Human Resources Supervisor Vickie
Stepp. Id. at 40-41. In that letter, Layman alleges
that “a previous employer . . . hired a private
investigator to try and find evidence of some sort of
corporate wrongdoing.” DN 28-4 at 3. Layman alleges
that the private investigator discovered private information
about Layman's “sexual preferences, past sexual
relationships, health issues, and personal
conversations.” Id. That information, he
alleges, then “found its way” to his coworkers at
UPS. Id. Upon learning of the sharing of his private
information, Layman says he went home and cried, a recording
of which was played over the speakers at Layman's
workplace. DN 1-1 at 1.
then filed complaints with state and federal cybercrime
units. DN 28-4 at 4. It is unclear from the record at this
stage what resulted from those complaints. Afterward, Layman
claims he overheard his manager discussing the details of his
cybercrime claims with his coworkers, even though Layman had
not publicly shared that information. Id. He claims
he then noticed changes in the way he was treated at work.
Specifically, he alleges that some coworkers became rude or
hostile and were making comments about private information.
Id. He also claims that rat droppings were collected
and placed onto his desk. DN 1-1 at 1.
receiving Layman's letter alleging harassment, Stepp
interviewed other employees and UPS Corporate Compliance
& Ethics Manager Cindy Wren contacted Layman to ask
follow-up questions. DN 28-2 at 48-49; DN 28-4 at 2.
Layman's concerns could not be substantiated and no
further action was taken. DN 28-4 at 2. In response, Layman
filed a Charge of Discrimination against UPS with the Equal
Employment Opportunity Commission (“EEOC”) on
April 25, 2016, alleging that he was being harassed because
of his gender/sexual orientation and disability. DN 28-5 at
1. The EEOC summarily dismissed that Charge on May 24, 2016.
Id. at 4.
about June 13, 2016, eligible employees (including Layman)
were directed to complete the 2016 Questionnaire. DN 28-2 at
67. Layman knew he was required to take the Questionnaire but
did not do so. Id. at 52. He received email
reminders regarding the Questionnaire requirement on July 6,
August 1, August 17, August 24, September 6, September 14,
September 19, September 21, October 3, October 4, and October
11, 2016, as well as on January 6, 2017. DN 28-6 at 16-27. By
the October 11, 2016 email, Layman was the only employee out
of 46, 808 eligible employees worldwide who had not taken the
Questionnaire. Id. at 27. Layman also received a
phone call from Wren on October 12, 2016, warning him that
termination of his employment was possible. Id. at
48-49. On November 4, 2016, Area Human Resources Manager
Pamala Cecil Pullen met with Layman in person to encourage
him to complete the Questionnaire. DN 28-5 at 2. Layman
declined to comply or discuss the Questionnaire, citing his
dissatisfaction regarding the handling of his first EEOC
January 6, 2017, Layman met with Human Resources Operations
Manager Sharnika Glenn, who told Layman he had to complete
the Questionnaire by that afternoon. DN 28-2 at 22-23. Layman
refused. Id. at 27. Glenn requested-and Layman
provided-a written refusal signed by Layman and witnessed by
Glenn and two other employees. DN 28-3 at 38. Layman was then
offered one final opportunity to take the Questionnaire. DN
28-2 at 27. When he again declined, Glenn terminated his
employment for insubordination. Id. After his
discharge, Layman filed another EEOC Charge alleging
retaliation. The EEOC summarily dismissed that Charge on
September 12, 2017. DN 28-3 at 40. Layman then filed this
action on December 8, 2017. DN 1-1 at 1.
logical matter, the Court must first address whether to
sustain the objection to the magistrate's order and
whether to permit an extension of time before addressing the
motion for summary judgment. Ultimately, the Court denies
both and considers the motion for summary judgment, granting
Layman's Objection to the Magistrate's Order
objection to a nondispositive order of a magistrate, the
Court may “modify or set aside any part of the order
that is clearly erroneous or is contrary to law.”
Fed.R.Civ.P. 72(a). See also 28 U.S.C. §
636(b)(1)(A). To the extent that no objection is filed, the
arguments are waived. Thomas v. Arn, 728 F.2d 813,
815 (6th Cir. 1984), aff'd, 474 U.S. 140, 147-48
(1985). Layman objects to the magistrate's order for
three reasons: (1) the magistrate did not consider when the
issue arose when determining timeliness; (2) the magistrate
failed to consider good cause when determining timeliness;
and (3) the magistrate relied on a mootness argument.
live in a world of deadlines. . . . A good judge sets
deadlines, and the judge has a right to assume that deadlines
will be honored.” Dunning v. War Mem
'l Hosp., 534 Fed.Appx. 326, 332
(6th Cir. 2013) (citation omitted). However, with regard to
those deadlines “the court may, for good cause, extend
the time with or without motion or notice if the court acts,
or if a request is made, before the original time or its
extension expires.” Fed.R.Civ.P. 6(b)(1)(A). The
primary measure of the “good cause” standard is
the moving party's diligence in attempting to meet the
deadlines, though courts may also consider prejudice to the
nonmoving party. Inge v. Rock Fin Corp., 281 F.3d
613, 625 (6th Cir. 2002). Merely proceeding pro se is
insufficient, standing alone, to provide good cause.
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991).
Good cause is particularly lacking where there has been
“a clear pattern of delay.” Id.
the magistrate did not specifically reference “good
cause” in her order, it is clear to the Court she
considered it. In the discovery context, “[a] district
court may properly deny a motion to compel discovery where
the motion to compel was filed after the close of
discovery.” Pittman v. Experian Info. Sys.,
901 F.3d 619, 642 (6th Cir. 2018) (citation omitted). See
also Morris v. Zurich Am. Ins. Co., No.
5:16-CV-129-TBR-LLK, 2018 WL 1875295, at *2 (W.D. Ky. April
19, 2018) (“Motions to compel filed after the discovery
deadline are almost always deemed untimely.”)
a motion to compel filed after the close of discovery could
be proper when a party subject to discovery requests fails to
provide information until the end of the discovery period and
the motion to compel is filed in a timely manner afterward.
However, that scenario is not presented in this case. Here,
discovery closed on December 3, 2018. The motion to compel
was not filed until January 28, 2019-almost two months later.
Such a lapse is sufficiently late to be denied as untimely.
See Craig-Wood v. Time Warner N.Y. Cable LLC, 549
Fed.Appx. 505, 508 (6th Cir. 2014) (affirming district court
conclusion that a motion to compel filed two months after
close of discovery was untimely); Morris, 2018 WL
1875295, at *2 (motion to compel filed two months after close
of all discovery was untimely).
the final argument regarding mootness, the magistrate makes
no reference to this argument in her order and does not
appear to rely on it. Regardless, since she was justified in
denying the motion on other grounds, even assuming error
arguendo, the error would be harmless. As a result,
the Court cannot say that the ...