Opinion
Case No. 2:18-cv-01031-RMG-MGB
01-21-2020
Willie Frank James, Jr., Plaintiff, v. Southeastern Grocers LLC, Dan Faketty, Jennifer Powers, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se and in forma pauperis, filed this employment action on April 16, 2018, alleging race discrimination at his workplace. (Dkt. No. 1.) On December 5, 2019, Defendant Southeastern Grocers, LLC ("Defendant") filed a Third Motion to Dismiss "as a sanction against [Plaintiff] for his continued failure to provide responses and documents in response to Defendant's First Request for Production of Documents." (Dkt. No. 104 at 1.) Defendant asks that the Court dismiss this action with prejudice and "impos[e] such additional relief as the Court deems just and appropriate." (Id. at 3.) In its reply brief, Defendant asks that, in the alternative, the Court order "at minimum that Plaintiff produce the missing documents and evidence he claims to have so that Defendant will not be prejudiced if the case proceeds further." (Dkt. No. 108 at 5.) For the reasons stated below, the undersigned recommends denying the Motion to Dismiss.
BACKGROUND
A. Factual Background
Plaintiff was an employee of Defendant Southeastern Grocers LLC from March 23, 2015, through his termination on May 20, 2016. (Dkt. No. 32 at 1-2.) While employed at Southeastern Grocers, Plaintiff's "responsibilities were to control shrinkage loss or theft in all stores assigned." (Id. at 2.) On February 15, 2016, Plaintiff called Phil Harris ("Harris"), the Human Resources Director, "to report an incident that took place between me and Patrick Johnson regarding his threat to [Plaintiff's] career." (Id.) In response, Harris arranged a meeting with Defendant Jennifer Powers ("Powers"), the Director of Human Resources. (Id.) Plaintiff alleges that he explained to Harris and Powers "all of the circumstances of very inappropriate and derogatory behavior as well as comments about black people and the culture making for a very uncomfortable working environment." (Id. at 2-3.) Plaintiff also explained that "Patrick Johnson had written [him] up on a few occasions as he was constantly regarding [Plaintiff's] incompetence in performing [his] duties." (Id.)
Plaintiff refers to this defendant as Jennifer Powell. However, it appears her name is actually Jennifer Powers, and service was attempted under the latter name. (Dkt. No. 38.)
According to Plaintiff, Powers "denied" Plaintiff "the right . . . to file a grievance against Patrick Johnson after having reported the ongoing issues." (Id. at 4.) Plaintiff "was told [he] should go back and talk to Patrick and see if [he] could work this out." (Id.) Plaintiff alleges that he "did not see where this was going to be a viable solution." (Id.) Plaintiff alleges that he filed the instant action because Powers "did not see fit to investigate or take heed to any of [Plaintiff's] concerns regarding Patrick Johnson's behavior and pattern of threats to [his] career." (Id.) He further alleges that as a result of Powers' actions, Plaintiff "was made subject to several more months of constant threats and verbal racially motivated abuse that created a very hostile work environment." (Id.)
Plaintiff alleges that after his termination, he informed Powers that he had a "2 hour 51 minute and 10 seconds recording between Mr. Johnson and [Plaintiff]" where Johnson said in part that he had lied to the company "about his reasons for terminating" Plaintiff. (Id. at 5.) According to Plaintiff, Powers then called him in for a meeting with her and Dan Faketty, the Vice President of Protection, "to discuss the content of the recording." (Id.) Plaintiff alleges that he asked for a meeting with Faketty and Johnson "to address [his] previous concerns that were ignored by Harris and Powers in order to resolve this egregious act of discrimination and wrongful termination." (Id.) Faketty told him that "would never happen." (Id.)
Plaintiff alleges that he did not forward a copy of the full recording to the company because "there was no consideration for the type of treatment that [he] received from the upper management team, which consisted of" Harris, Powers, and Faketty. (Id.) Plaintiff alleges he later forwarded the company a four minute clip from the recording wherein Johnson discussed "his disdain for his Supervisor and BI-LO as an organization." (Id.) In response, Johnson was terminated, and Plaintiff received an email that the problem was resolved. (Id.) Plaintiff states this was an unsatisfactory result because the company "completely ignored" his complaints about Johnson's attitude and temperament towards Plaintiff, but the company "removed" Johnson after he made comments about white men. (Id.)
Plaintiff brings this action for "wrongful termination due to discrimination" under Title VII of the Civil Rights Act of 1964. (Dkt. No. 1 at 3, 6.) He received his notice of right to sue from the United States Equal Employment Opportunity Commission ("EEOC") on January 16, 2018, (Dkt. No. 1-1), and he filed this action on April 16, 2018. (Dkt. No. 1).
B. Procedural Background
This is the third sanctions motion that Defendant has filed in this case. Defendant previously sought similar sanctions against Plaintiff in a Motion for Sanctions filed June 4, 2019, (Dkt. No. 66), and in a Motion to Dismiss filed October 2, 2019 (Dkt. No. 85). The Court granted in part the initial Motion for Sanctions due to Plaintiff's "bad faith by repeatedly failing to meet discovery deadlines, even where extensions have been granted, and ignoring court orders." (Dkt. No. 76 at 4.) The Court imposed a monetary sanction of $250.00, to be paid by Plaintiff to Defendant, and advised Plaintiff that his case would be dismissed with prejudice if he did not pay the monetary sanction.
While Plaintiff ultimately paid the monetary sanction to Defendant, (Dkt. No. 79), Defendant filed a Motion to Dismiss again asserting Plaintiff still repeatedly failed to respond to Defendant's discovery requests and failed to comply with the Court's orders. (Dkt. No. 85.) The Court denied Defendant's Motion "given the progress made in discovery," but warned Plaintiff that "further failures to comply with the rules regarding discovery or this Court's Orders may cause his case to be dismissed with prejudice." (Dkt. No. 96 at 4.) Subsequently, on Defendant's motion, the Court extended the discovery deadline to January 20, 2020 and extended the dispositive motions deadline to March 20, 2020. (Dkt. No. 99.)
Defendant then filed a Third Motion to Dismiss on December 5, 2019. (Dkt. No. 104.) Plaintiff filed a response brief on January 10, 2020, (Dkt. No. 107), and Defendant filed a reply brief on January 17, 2020 (Dkt. No. 108). The Motion has been fully briefed and is ripe for review.
STANDARDS
Rule 37(b)(2), Fed. R. Civ. P., provides that if a party fails to obey an order to provide or permit discovery, the Court in which the action is pending may make such orders in regard to such failure as are just, including dismissing the action. In addition, Rule 41(b), Fed. R. Civ. P., authorizes the Court to dismiss an action for failure to prosecute or for failure to comply with court orders. "There is no doubt that Federal Courts possess the inherent authority to dismiss a case with prejudice . . ." See Link v. Wabash Railroad Co., 370 U.S. 626, reh'g. denied, 371 U.S. 873 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (courts have the authority to dismiss cases under Rules 37 and 41 as part of the courts' "comprehensive arsenal of Federal Rules and statutes to protect themselves from abuse").
Prior to imposing the sanction of dismissal under Rule 37(b), Fed. R. Civ. P., the district court must consider four factors: (1) whether the noncomplying party acted in bad faith; (2) the degree of prejudice suffered by the other party or parties as a result of the failure to comply; (3) the deterrence value of dismissal as a sanction for noncompliance; and (4) the efficacy of a less drastic sanction. Mutual Fed. Sav. & Loan Ass'n v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir.1989). The Fourth Circuit has emphasized the importance of warning the offending party of what may follow prior to dismissing the action for failure to comply with discovery obligations. See, e.g., Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995); Choice Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d 469, 473 (4th Cir.1993) (court must give the noncomplying party an "explicit and clear" warning of the consequences of failing to satisfy the court's conditions and orders); Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 953 (4th Cir.1987) (stating that warning was a "salient fact" that distinguished cases in which default judgment was an appropriate sanction for discovery abuse under Rule 37).
Whether to dismiss under Rule 41(b) is also a matter for the Court's discretion; see Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); and the Court of Appeals for the Fourth Circuit has developed a four-prong test to determine whether a Rule 41(b) dismissal is appropriate. The District Court must consider (1) the degree of personal responsibility of the Plaintiff; (2) the amount of prejudice caused the Defendant; (3) the existence of a "drawn-out history of deliberately proceeding in a dilatory fashion"; and (4) the existence of sanctions less drastic than dismissal. Chandler Leasing Corp., 669 F.2d 9 at 920; Tinsley v. Quick & Reilly, Inc., 216 F.R.D. 337, 338 (E.D. Va. 2001); Contreras v. NFN Pettiford, No. 05-cv-3552, 2006 WL 2621866, at *2 (D.S.C. Sept. 11, 2006).
The standards for dismissal under Rule 37(b)(2) and Rule 41(b) are "virtually the same." Cooper v. Spartanburg Sch. Dist. 7, No. 715-cv-03072-JMC-JDA, 2017 WL 9289401, at *4 (D.S.C. Feb. 24, 2017) (quoting Carter v. Univ. of W. Va. Sys., 23 F.3d 400, 1994 WL 192031, at *2 (4th Cir. 1994)), adopted by, 2017 WL 4021084 (D.S.C. Sept. 12, 2017). Accordingly, to determine whether this action should be dismissed for Plaintiff's failure to comply with discovery requests and the Court's orders, the Court must consider (1) whether Plaintiff acted in bad faith; (2) the amount of prejudice Plaintiff's noncompliance caused Defendants; (3) the need for deterrence of the sort of noncompliance exhibited by Plaintiff; (4) the effectiveness of less drastic sanctions; and (5) whether Plaintiff has a history of deliberately proceeding in a dilatory fashion. Id. (citing Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92; Chandler Leasing Corp., 669 F.2d at 920).
DISCUSSION
As noted above, the instant Motion to Dismiss asks the Court to dismiss this case with prejudice "as a sanction against [Plaintiff] for his continued failure to provide responses and documents in response to Defendant's First Request for Production of Documents" ("RFP"). (Dkt. No. 104 at 1.) Defendant asks that the Court "impos[e] such additional relief as the Court deems just and appropriate." (Id. at 3.) In its reply brief, Defendant asks that, in the alternative, the Court order "at minimum that Plaintiff produce the missing documents and evidence he claims to have so that Defendant will not be prejudiced if the case proceeds further." (Dkt. No. 108 at 5.) Defendant has attached to the Motion correspondence between the parties regarding the outstanding responses to Defendant's discovery requests, certain documents provided by Plaintiff during discovery, and certain excerpts from Plaintiff's deposition. (Dkt. Nos. 104-1; 108-1; 108-2; 108-3; 108-4.) In the Motion, Defendant summarizes how the case proceeded after the Court denied the Motion to Dismiss and extended the scheduling order.
Specifically, Defendant states that: (1) Plaintiff's responses to Defendant's RFP were due by November 27, 2019, and Plaintiff failed "to provide Defendant with a written response" and "did not produce documents responsive to a large number of Defendant's requests"; (2) defense counsel emailed Plaintiff on November 27, 2019 with an explanation of the requests that remained outstanding and warned it would file a renewed motion to dismiss if Plaintiff did not adequately respond to the requests by December 4, 2019; and (3) on December 3, 2019, Plaintiff sent defense counsel "duplicate copies of documents he had previously produced" and Defendant filed the instant Motion. (Dkt. No. 104 at 2.) Defendant asserts Plaintiff's conduct shows that "[t]he warnings and monetary sanctions that were previously imposed have not had the intended effect . . . [and] the only appropriate sanction here is dismissal of Plaintiff's case, with prejudice." (Id. at 2-3.)
Plaintiff has responded to the Motion to Dismiss, asserting that he "has been cooperatively participating in the discovery process." (Dkt. No. 107 at 3.) In his brief, Plaintiff includes written responses to most of the requests in Defendant's RFP. (Id. at 5-10.) He also attaches certain correspondence between the parties, his "Statement of Facts," and certain documents that appear responsive to Defendant's RFP. (Dkt. Nos. 107-1; 107-2.)
It appears Plaintiff's response brief has resolved most of the outstanding discovery issues. In its reply brief, Defendant states, "Plaintiff's Response finally included responses to a number of Defendant's RFP." (Dkt. No. 108 at 2.) Defendant asserts that Plaintiff's "responses remain incomplete," however. (Id.) More specifically, Defendant first asserts that Plaintiff failed to provide written responses to Request Nos. 1 and 2, which ask Plaintiff to produce "all documents, correspondence, and communications related to any claim or allegation stated in your Complaint and Supplemental Complaint" and "all documents related to any defense stated in SEG's Answers." (Id.) According to Defendant, Plaintiff also did not state whether he has any "documents of tangible items Plaintiff submitted to, or received from, the EEOC or any state or local deferral agency concerning any charges, past or present, of discrimination, harassment, or retaliation Plaintiff has filed against any employer other than Defendant," as requested by Request No. 7. (Id.) Defendant asserts Plaintiff's response here "only explained that he had produced documents that were related to the charge of discrimination he filed against Defendant." (Id.)
Defendant also asserts that "Plaintiff has failed to produce a number of documents requested by Defendant that Plaintiff testified in deposition that he claimed to have in his possession." (Id.) Specifically, Defendant claims that "Plaintiff testified in his deposition that he had correspondence from Bryan Pascal and Bill Jones that was relevant to his case." (Id.; Dkt. No. 108-1.) A review of the cited portion of Plaintiff's deposition reveals that Plaintiff testified he emailed and texted a director of operations, Bryan Pascal, about a power outage at the store in July of 2015. Plaintiff also testified that he received an email in June of 2015 from a store manager, Bill Jones, praising Plaintiff for his "professionalism." (Id.) Defendant asserts this correspondence is responsive to Request Numbers 5, 21, and 22, and states that it "cannot complete its defense efforts in this case" if the correspondence is not produced. (Dkt. No. 108 at 3.)
These Requests essentially ask Plaintiff for correspondence with Southeastern Grocers that relates to the issues and claims in this case. (Dkt. No. 108 at 3.)
Defendant next asserts that Plaintiff failed to provide documentation concerning his current employment with Lowe's Home Improvement ("Lowe's"), "despite stating during his deposition that he has such documentation and would produce it to Defendant." (Id.) During his deposition, Plaintiff testified that he has "gotten praises" from Lowe's, and he "can provide" those praises. (Dkt. No. 108-1 at 5.) Defendant asserts that this documentation is responsive to Request No. 10, which asks for "all documents relating to any employment . . . that Plaintiff has held with any employer after Plaintiff's employment with Defendant ended." (Dkt. No. 108 at 3.) Here, Defendant also cites Plaintiff's written response to this Request, where Plaintiff wrote it is "not possible to produce because they would be applications submitted and retained by the company." (Id.; Dkt. No. 107 at 6.) Defendant asserts that Plaintiff should be able to "access documents beyond applications for at least his current employer, including, but not limited to, payroll records, benefits received, and his offer letter." (Dkt. No. 108 at 3.) Defendant asserts "it cannot prepare its defense of Plaintiff's case without such documents." (Id. at 4.)
Finally, Defendant asserts that Plaintiff has not produced "the full 2 hour, 51 minute, and 10 second recording of a conversation between himself and his supervisor, Patrick Johnson, on February 15, 2016, and another recording of a conversation between himself, Dan Faketty, and Jennifer Powers following the termination of his employment." (Id.) Defendant asserts these recordings are responsive to Request Numbers 1, 5, 9, 16, 21, 26, and 29. (Id.) According to Defendant, Plaintiff misrepresents in his response brief that he produced these recordings. (Id.; Dkt. No. 107 at 5-10.) Defendant acknowledges that Plaintiff has sent "unverified transcripts" of the recordings, but it contends that this does not satisfy the requests in Defendant's RFP. (Dkt. No. 108-2.) Defendant also states that Plaintiff has only provided a four minute and 54 second recording of a conversation with Johnson. (Dkt. No. 108-3.) Defendant further disputes Plaintiff's assertion that he sent defense counsel the recording of his conversation via Dropbox on December 9, 2019. (Dkt. Nos. 107 at 5; 108 at 5.) Defendant asserts that Plaintiff ignored its January 10, 2020 email to Plaintiff stating it was not in receipt of the audio recordings. (Dkt. No. 108 at 5.) According to Defendant, "Plaintiff seeks to rely heavily on these recordings . . . in order to prove his claims," and it cannot prepare an adequate defense without the production of the actual recordings.
In its reply brief Defendant argues for dismissal as a sanction for Plaintiff's "continued disobedience in this case," or, in the alternative, that the Court order "Plaintiff produce the missing documents and evidence he claims to have so that Defendant will not be prejudiced if the case proceeds further." (Dkt. No. 108 at 5.) The undersigned finds that dismissal is not appropriate at this time, but Defendant's alternative request should be granted.
More specifically, based on the foregoing, it appears Plaintiff has largely responded to Defendant's RFP, which was the only issue remaining in discovery. While Plaintiff responded in an untimely manner and has still failed to fully respond to certain requests for production, the undersigned finds dismissal is not an appropriate sanction. Rather, it would be more appropriate to extend discovery for a limited period of time so that Plaintiff can fully comply with Defendant's RFP, as Defendants request as an alternative to dismissal. More specifically, Plaintiff still needs to produce: (1) complete written responses to Requests Numbers 1, 2 , and 7; (2) the correspondence referenced in Plaintiff's deposition with Bryan Pascal and Bill Jones; (3) the "praises" from Lowe's referenced in Plaintiff's deposition and any other documents responsive to Request Number 10 in Plaintiff's possession such as payroll records and benefits received; and (4) the full 2 hour, 51 minute, and 10 second recording of a conversation between himself and his supervisor, Patrick Johnson on February 15, 2016 and another recording of a conversation between himself, Dan Faketty, and Jennifer Powers following the termination of his employment. The undersigned recommends that to the extent Plaintiff fails to produce any of the outstanding discovery by the imposed deadline, he should not be allowed to rely on or refer to such evidence to support his claims in this action. For example, if Plaintiff does not produce "the full 2 hour, 51 minute, and 10 second recording of a conversation between himself and his supervisor, Patrick Johnson on February 15, 2016 and another recording of a conversation between himself, Dan Faketty, and Jennifer Powers following the termination of his employment" in a timely manner, then he cannot rely on or refer to this evidence in support of his claims. In addition, Plaintiff is warned that should the case proceed past summary judgment, his failure to produce discovery could result in an adverse instruction to the jury, wherein the jury could infer facts about the missing evidence in a way that is adverse to Plaintiff's case. Such sanctions are more appropriately tailored to the circumstances of this case and should cure any potential prejudice to Defendant.
Because the transcripts of these recordings produced by Plaintiff are not verified, the Court will not consider them as evidence.
The undersigned recommends the Court order that Plaintiff fully respond to Defendant's RFP by February 10, 2020, and, should Defendant need to again depose Plaintiff, such deposition must take place by February 24, 2020. Accordingly, the discovery deadline should be extended to February 24, 2020, to allow for compliance with the Court's instructions. However, the dispositive motions deadline should remain March 20, 2020. The undersigned recommends that to the extent Plaintiff fails to produce any of the outstanding discovery by February 10, 2020, he should not be allowed to rely on or refer to such evidence to support his claims in this action. Plaintiff is warned that no further extensions of this deadline will be granted—anything that is not produced by February 10, 2020 will be deemed inadmissible in this case.
To the extent necessary, the undersigned recommends the Court allow additional time for Plaintiff's deposition under Rule 30(d)(1) of the Federal Rules of Civil Procedure. Rule 30(d)(1), Fed. R. Civ. P. ("The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent . . . .").
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Motion to Dismiss (Dkt. No. 104) be DENIED. The undersigned further recommends the Court order Plaintiff to fully respond to Defendant's RFP by February 10, 2020 and extend the discovery period to February 24, 2020, to allow time for Defendant to further depose Plaintiff, if necessary. The undersigned recommends that the motions deadline remain March 20, 2020.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 21, 2020
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).