United States District Court, N.D. Georgia, Atlanta Division
RICHARD W. STORY, District Judge.
This case comes before the Court on Defendant's Motion for Summary Judgment , Plaintiff's Motion to Amend Complaint , Defendant's Motion to Strike or, Alternatively, Exclude from Consideration , and Plaintiff's Motion to Strike . After reviewing the record, the Court enters the following Order.
Plaintiff Pamela Dunn-Carter filed this action under the Americans with Disabilities Act ("ADA") against Defendant Patrick Donahoe, Postmaster General of the United States Postal Service ("USPS"), alleging that Defendant retaliated against her for filing an Equal Employment Opportunity Charge of Discrimination ("EEO Charge") against USPS. Plaintiff began working for USPS in 1988 as a distribution clerk. (Def.'s Statement of Material Facts ("SMF"), Dkt. [27-1] ¶¶ 1-2.) In 1993, Plaintiff suffered a work-related injury, and as a result, she has been on modified or limited-duty status with USPS. (Id. ¶¶ 4-5.) Around March 2006, Plaintiff began working at the North Metro USPS office in a modified-duty position performing human-resources specialist functions, namely processing job applications. (Id. ¶¶ 12-13.) By July 2007, James Reid and Deb Gracek were Plaintiff's supervisors on the Human Resources Team at North Metro. (Id. ¶¶ 15-16.)
According to Defendant, Plaintiff began having some performance problems associated with an increased work load. (See id. ¶¶ 19-21.) Plaintiff then decided to move from the North Metro facility to the Bulk Mail Center ("BMC") where she could get extra help with her work processing job-application files, which she would send on to Mr. Reid and Ms. Gracek at North Metro. (Id. ¶ 24.) On September 4, 2007, Plaintiff began working at the BMC, where Marvin Rasheed was the Acting Plant Manager. (Id. ¶ 28.)
Around September 14 or 15, 2007, Plaintiff initiated an EEO Complaint naming Mr. Reid and Ms. Gracek as the discriminating officials. (Id. ¶ 34.) Plaintiff alleged that Mr. Reid and Ms. Gracek unfairly scrutinized her work and harassed her because of her race and disability when she tried to discuss the heavy workload at North Metro. (See Info. for Pre-Compl. Counseling, Dkt. [27-3] at 8-10.) After she filed her EEO Complaint, Plaintiff states that Mr. Reid sent numerous e-mails to her and other USPS human-resource supervisors, as well as Mr. Rasheed, between October 16, 2007, and November 5, 2007, pointing out various problems with Plaintiff's processing of job applicants. (Def.'s SMF, Dkt. [27-1] ¶¶ 37-38; E-mails, Dkt. [27-3] at 16-23.) Plaintiff says she never had documented performance problems before receiving those e-mails. (Pl.'s Statement of Disputed Facts, Dkt. [29-2] ¶ 6.)
On November 6, 2007, Plaintiff participated in an EEO mediation proceeding related to her EEO Charge against Mr. Reid and Ms. Gracek, who were still working at the North Metro facility. (Def.'s SMF, Dkt. [27-1] ¶ 43.) Two days after mediation, Mr. Rasheed removed Plaintiff from her position performing human-resources specialist functions and gave her other duties. (Id. ¶ 44; Pl.'s Statement of Disputed Facts, Dkt. [29-2] ¶¶ 16-17, 27.) It appears that the new position was less favorable because it was not a limited-duty position. (See Pl.'s Statement of Disputed Facts, Dkt. [29-2] ¶ 31.) On November 15, 2007, Plaintiff was told to leave her office, and the next day she was told to store her work-related items on a cart and to sit in a conference room until it was needed by other employees. (Id. ¶¶ 28-29.) When other employees needed the conference room, Plaintiff wandered the halls looking for a place to sit. (Id. ¶ 30.)
Plaintiff now brings a retaliation claim based on Mr. Rasheed's decision to remove her from her human-resources duties. Defendant argues that Mr. Rasheed could not have possibly retaliated against her because he did not know that Plaintiff had filed an EEO Charge against Mr. Reid and Ms. Gracek. As discussed below, in response to Defendant's summary judgment motion, Plaintiff attempts to introduce affidavits from two witnesses purporting to show that Mr. Rasheed had knowledge of Plaintiff's EEO Charge. Defendant moves to strike those affidavits. In addition, Plaintiff moves to amend her Complaint to add allegations about Mr. Rasheed's knowledge, and Plaintiff also moves to strike two of Defendant's filings related to its Motion for Summary Judgment.
I. Plaintiff's Motion to Strike 
Plaintiff moves to strike two documents Defendant filed in connection with its Motion for Summary Judgment: the Objections and Responses to Plaintiff's Statement of Disputed Facts , and the Consolidated Statement of Undisputed Facts & Reply to Undisputed Material Facts . Plaintiff argues that in both documents, Defendant failed to limit its responses to the acceptable responses listed under Local Rule 56.1.B(3), instead relying on argumentative statements. The Court finds that Defendant substantially complied with Local Rule 56.1. However, to the extent that any of Defendant's arguments are argumentative, the Court will not consider them. Therefore, the Court DENIES Plaintiff's Motion to Strike .
II. Defendant's Motion to Strike or Exclude from Consideration 
Defendant moves to strike two affidavits Plaintiff uses to respond to Defendant's Motion for Summary Judgment. The affidavits are from Gwendolyn Joyce White and Glenda Sparks Karasoulis. Both witnesses provide evidence that the Acting Plant Manager at the BMC, Mr. Rasheed, had knowledge of Plaintiff's 2007 EEO activities when he removed her from her employment position. Ms. White states she accompanied and represented Plaintiff during her mediation on November 6, 2007. (White Aff., Dkt. [31-7] ¶ 2.) After the mediation, Ms. White and Plaintiff ran into Mr. Rasheed, Plaintiff introduced Ms. White to Mr. Rasheed, and they discussed the fact that Ms. White had attended Plaintiff's mediation. (Id. ¶ 4.) In light of this testimony, Plaintiff argues that Mr. Rasheed knew of her protected activities and therefore retaliated against her two days later.
Ms. Karasoulis offers testimony that she was with Plaintiff before and after Plaintiff's November 8, 2007 meeting with Mr. Rasheed. After the meeting, Ms. Karasoulis states that Plaintiff appeared stressed, startled, and shaken. (Karasoulis Aff., Dkt. [31-10] ¶¶ 4-5.) Plaintiff explained that Mr. Rasheed had just told her that he would change her employment position because two other employees no longer wanted to work with her because they feared that Plaintiff would retaliate against them based on her history of having filed an EEO Charge. (Id. ¶ 6.) Again, Plaintiff asserts that this is evidence Mr. Rasheed was aware of her EEO activities.
Defendant objects to the use of these affidavits because neither Ms. White nor Ms. Karasoulis was disclosed as a witness with discoverable information. Parties are required to disclose the names of individuals likely to have discoverable information that the parties may use to support their claims or defenses, unless the use would be solely for impeachment. FED. R. CIV. P. 26(a)(1)(i). Parties are also required to supplement incomplete Rule 26(a) disclosures. FED. R. CIV. P. 26(e)(1). Thus, "the obligation to disclose pertinent parties is continuing [throughout the case]." F.T.C. v. Nat'l Urological Grp., Inc., 645 F.Supp.2d 1167, 1179 (N.D.Ga. 2008). If a party fails to comply with Rule 26(a) or (e), that party is precluded from using the undisclosed witness "to supply evidence on a motion... unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37(c)(1).
In her initial disclosures, Plaintiff identified four individuals with discoverable information: (1) Plaintiff, (2) Mr. Rasheed, (3) Ms. Gracek, and (4) Mr. Reid. (Dkt. [33-1] at 8.) Plaintiff does not deny that she never disclosed Ms. White or Ms. Karasoulis as witnesses, instead arguing that she was not required to disclose them because they are impeachment witnesses used solely to undermine Mr. Rasheed's testimony. (See Pl.'s Resp., Dkt.  at 3-4.) But it is Plaintiff's burden to establish her prima facie case of retaliation, and therefore Plaintiff must show that Mr. Rasheed knew about Plaintiff's protected activities. See, e.g, Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) ("In order to show the two things were not entirely unrelated, the plaintiff must generally show that the decision maker was aware of the protected conduct at the time of the adverse employment action."). Just because the evidence contradicts Mr. Rasheed's statement does not mean that the evidence is only impeachment evidence; on the contrary, Plaintiff must rely on the evidence for the substantive purpose of establishing Mr. Rasheed's knowledge. Cf. Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004) (holding that disclosure was not required because "the disputed evidence, relating to the expert witness's qualifications as an engineer, was used solely for the purposes of impeachment rather than for a substantive purpose"). For that reason, the Court finds that the affidavits of Ms. White and Ms. Karasoulis are not solely impeachment evidence and should have been disclosed to Defendant. Plaintiff's failure to disclose these witnesses is not justified.
Furthermore, the Court finds that Plaintiff's failure is not harmless to Defendant, either. These witnesses speak to an element of Plaintiff's prima facie case. In fact, as discussed below, Defendant's summary judgment motion relies heavily on its contention that Mr. Rasheed did not know about Plaintiff's protected activity. And there is not evidence showing that Defendant knew what these witnesses might testify about despite the lack of disclosure, so Defendant did not have an opportunity to depose them. While Ms. White was identified as Plaintiff's mediation representative in some of the forms Plaintiff disclosed, (Pl.'s Reply, Dkt.  at 2) that fact does not hint that she had discoverable information about Mr. Rasheed's retaliation against Plaintiff. Plaintiff next states that Ms. Karasoulis was disclosed in an EEOC hearing related to this case, but the portion of the transcript Plaintiff cites simply says: "I went back to my office [after meeting with Mr. Rasheed] and Louise Spark[s Karasoulis] was in my office and I told her what had happened." (See Pl.'s Reply, Dkt.  at 2; EEOC Hearing Tr., Dkt. [27-2] at 62:24-63:4.) That is the only time Ms. Karasoulis is named during the entire EEOC hearing. Nor does Plaintiff point to other documents or ...