United States District Court, W.D. Virginia, Abingdon Division
Melvin E. Williams, Mel Williams, PLC, Roanoke, Virginia, for Plaintiff; Edward G. Stout, Curcio & Stout, PC, Bristol, Virginia, for Defendant James W. Anderson; Henry S. Keuling-Stout, Keuling-Stout, P.C, Big Stone Gap, Virginia, and A. Benton Chafin, Jr., and M. Katherine Patton, Chafin Law Firm, P.C, Lebanon, Virginia, for Defendants Russell County (Virginia) Department of Social Services and the Board of the Russell County (Virginia) Department of Social Services.
OPINION AND ORDER
James P. Jones United States District Judge
In this employment discrimination case, the plaintiff has moved for reconsideration of the court's grant of summary judgment in favor of the defendants. The motion has been briefed and argued by the parties, and is ripe for decision. For the foregoing reasons, I will deny the motion.
The plaintiff filed this action on May 14, 2014. She alleged that the Russell County Department of Social Services ("RCDSS") and its board of directors (the "Board") had discriminated against her because of her gender and religion and had retaliated against her because of her complaints of unequal treatment. She further alleged that her supervisor, defendant James W. Anderson, had defamed her, intentionally caused her emotional distress, and violated her due process rights.Most of these allegations had to do with the Board's decision to demote the plaintiff from her supervisory position at RCDSS to a nonsupervisory role. The demotion occurred only months after Kincaid had been promoted to the supervisory position, and lasted for about two months before the Board reinstated her as a supervisor.
On January 13, 2016, after the discovery deadline had passed, defendant Anderson moved for summary judgment. RCDSS and the Board jointly moved for summary judgment on January 28, 2016. The plaintiff subsequently responded to both motions, and a summary judgment hearing was held on March 11, 2016. Thereafter, I granted the motions for summary judgment and entered final judgment in favor of the defendants. See Kincaid v. Anderson, No. 1:14CV00027, 2016 WL 1122095 (W.D. Va. Mar. 22, 2016).
I granted the motions for summary judgment, at least in part, because the plaintiff failed to support her contested factual allegations with evidence from the record, as required by Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure. The plaintiffs attorney attempted to support some of those positions by submitting a copy of the Plaintiffs Interrogatory Responses to Defendant James Anderson's First Interrogatories ("interrogatory responses"), but the interrogatory responses were not verified by the plaintiff, as required by Federal Rule of Civil Procedure 33(b)(3), and I declined to consider them.
Following judgment, the plaintiff filed a pleading entitled "Motion to Reconsider" on April 5, 2016, together with a brief in support of the motion. In the brief, the plaintiffs attorney represented that the plaintiffs interrogatory responses had been made under oath, but that the last page of the responses containing the oath had been "inadvertently omitted" when the interrogatory responses were scanned into the court's electronic case filing system for submission as a summary judgment exhibit. (PL's Mem. Supp. Mot. Reconsider 5 n.4, ECF No. 100.) Attached to the brief as an exhibit was a copy of the interrogatory responses that contained a last page containing only the signature of the plaintiff together with a signed notary certificate reciting that the plaintiff had appeared before the notary on March 23, 2015, and "made oath that the forgoing [sic] are true and correct to the best of his [sic] knowledge, information and belief." (ECF No. 100-3.) There is no indication on this page that the plaintiffs signature or the notary certificate related to the interrogatory responses.
The pages of the interrogatory responses were numbered sequentially one through 17, with page 17 containing the certificate of service, showing that the interrogatory responses had been mailed to opposing counsel on September 4, 2015, nearly six months after the date the plaintiff allegedly appeared before the notary. The last page, containing the notary certificate, was not numbered. Moreover, defendant Anderson had also attached a copy of the plaintiffs interrogatory responses to his summary judgment brief, and that attachment did not include the notary page. At oral argument on the present motion, both opposing attorneys represented to the court that the interrogatory responses served on them in September of 2015 had not contained a notary page. (Tr. 18, 19-20, ECF No. 112.)
At oral argument plaintiffs attorney concluded that the interrogatory responses had not been completed when his client signed the notary page. His contention, however, was that his client had provided draft answers at the time the notary took her oath and that she had later - perhaps months later - verbally approved the final interrogatory responses:
Mr. Williams:... [A]nd then over the next several weeks and even months we went back and forth with her getting those answers finalized to where then she said yes, these are my actual sworn answers to place the affidavit with and then to produce those answers to the defendant.
The Court: So, if I'm not mistaken you had your client sign in essence a blank affidavit. There were no answers to interrogatories at the time she signed this affidavit?
Mr. Williams: We had draft answers, Your Honor, but those answers were modified, tweaked, finalized in the time after that with her input. Yes, sir.
(Id. at 8-9.) Plaintiffs counsel was unable to explain why the interrogatory responses served on opposing counsel months later did not contain ...