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Equal Employment Opportunity Commission v. Huntington Ingalls, Inc.

United States District Court, E.D. Virginia, Newport News Division

November 29, 2018


          OPINION & ORDER


         This matter is before the Court on Defendant, Huntington Ingalls, Inc.'s ("Defendant's" or "the Shipyard's") Motion for Summary Judgment. Doc. 23 ("MSJ"). This matter also comes before the Court on the Equal Employment Opportunity Commission's ("Plaintiffs" or "EEOC's") Motion to Strike Defendant's Expert Witnesses ("Motion to Strike"), Doc. 32. A hearing on these matters was held on October 31, 2018. For the reasons stated below, the Court DENIES Plaintiffs Motion to Strike and GRANTS Defendant's Motion for Summary Judgment.


         On September 13, 2017, the EEOC filed its complaint against the Shipyard alleging that the Shipyard violated § 102 of the Americans with Disabilities Act. Doc. 1 ("Compl."). In 2013, Stanley Dowdle ("Dowdle") applied to work for the Shipyard as a temporary leased laborer in the position of "pipefitter." Id. After applying, Dowdle was offered conditional employment pending his completion of a post-offer medical examination, which included a hearing test. Doc. 24 at 7-8; Doc. 24-4 ("Dowdle Dep.") at 7. Dowdle suffers from hearing loss, and wears hearing aids on a daily basis to assist him in hearing. Compl. ¶ 13. At the hearing test, Dowdle asked for the ability to use his hearing aids, but was advised that he had to perform the test without his hearing aids. Doc. 24 at 9; Dowdle Dep. at 52, 55. After reviewing Dowdle's hearing test results, the Shipyard denied Dowdle employment as a leased laborer, advising that Dowdle's hearing fell below the minimum hearing standard. Doc. 24 at 9; Doc. 24-9 ("Denial E-mail").

         On January 16, 2018, this Court entered a 16(b) scheduling order ("Scheduling Order"), which required the parties to identify expert witnesses who will provide potential Rule 702, 703, or 705 evidence by July 6, 2018. Doc. 8. The Scheduling Order also required disclosures outlined in Rule 26(a)(2)(B) ("expert reports") to be made on August 6, 2018. Id. On July 6, 2018, Defendant provided its expert witness disclosure identifying three potential expert witnesses: Hellen Dennie ("Dennie"), Kent Shoemaker ("Shoemaker"), and Drucilla Branche ("Branche"). Doc. 30 at 3. On August 6, 2018, Defendant failed to provide an expert report for any of the potential expert witnesses. Doc. 30 at 4. On August 15, 2018, Plaintiff contacted Defendant to determine whether Defendant intended to provide an expert report for any of its identified experts. Doc. 30 at 3. Defendant responded by providing an amended disclosure for Dennie and Branche. Doc. 30 at 4; See Doc. 30-5 ("Am. Discl."). The amended disclosure contained the following summaries regarding Dennie and Branche's testimonies:

[Dennie] [m]ay provide expert testimony regarding Defendant's hearing test requirements, hearing conservation program, and minimum hearing requirements as job related and consistent with business necessity; may provide expert testimony regarding Dowdle as a direct threat of harm to himself and/or others; may provide expert testimony regarding the inexistence of a reasonable accommodation for Dowdle's hearing loss.
[Branche] [m]ay provide expert testimony regarding minimum hearing requirements as job related and consistent with business necessity; may provide expert testimony regarding Dowdle as a direct threat of harm to himself and/or others; may provide expert testimony regarding the safety hazards of accommodations in the shipyard for workers with hearing loss.

Doc. 30 at 4-5; Am. Discl. at 2-3.

         On September 28, 2018, Defendant filed its Motion for Summary Judgment. Doc. 23. On October 11, 2018, Plaintiff filed its opposition to Defendant's Motion for Summary Judgement. Doc. 31. On October 12, 2018, Plaintiff filed a Motion to Strike the testimony of Branche and Dennie. Doc. 32. On October 18, 2018, Defendant filed a reply in support of its Motion for Summary Judgment. Doc. 37. On October 24, 2018, Defendant filed a Motion in Limine. Doc. 38. On October 25, 2018, Defendant filed its opposition to Plaintiffs Motion to Strike. Doc. 40. On October 30, 2018, Plaintiff filed a reply in support of its Motion to Strike. Doc. 44. Both Plaintiffs Motion to Strike and Defendant's Motion for Summary Judgment are now ripe for review.


         A. Motion to Strike

         Federal Rule of Civil Procedure 37(c) provides that "if a party fails to provide required by Rule 26(a)... the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless." Fed.R.Civ.P. 37(c)(1). Under Fourth Circuit precedent:

In exercising its broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis, a district court should be guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.

S. States Rack And Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).

         B. Motion for Summary Judgment

         Summary judgment under Rule 56 is appropriate only when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Terry's Floor Fashions v. Burlington Indus., 763 F.2d 604, 610 (4th Cir. 1985). Once a party has properly filed a motion for summary judgment, the nonmoving party may not rest upon mere allegations in the pleadings but must instead set forth specific facts illustrating genuine issues for trial. Celotex, 477 U.S. at 322-24. Such facts must be presented in the form of exhibits and sworn affidavits. Failure to rebut the motion with such evidence will result in summary judgment when appropriate. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

         A mere scintilla of evidence is insufficient to withstand a motion for summary judgment. Rather, the evidence must be such that the factfinder reasonably could find for the nonmoving party. See Anderson, 477 U.S. at 252. Although the court must draw all justifiable inferences in favor of the nonmoving party, in order to successfully defeat a motion for summary judgment, a nonmoving party cannot rely on "mere belief or conjecture, or the allegations and denials contained in his pleadings." Doyle v. Sentry Ins., 877 F.Supp. 1002, 1005 (E.D. Va. 1995) (citing Celotex, 477 U.S. at 324).

         IV. ANALYSIS

         A. Motion to Strike

          Plaintiff argues that the testimony of Defendant's witnesses Dennie and Branche should be excluded because Defendant did not provide the disclosures required under Federal Rules of Civil Procedure 26(a)(2)(B) and 26(a)(2)(C). Doc. 30 at 1. For the reasons stated below, the Court FINDS that Defendant was not required to provide an expert report under Rule 26(a)(2)(B), that the disclosures provided by Defendant were adequate under Rule 26(a)(2)(C), and, even if Defendant's expert disclosures were deficient, such deficiencies were cured when Defendant made its experts available for deposition well in advance of trial.

         Federal Rule of Civil Procedure 26(a)(2)(A) requires a party to disclose the identity of any witness it may use at trial to present evidence under Federal Rules of Civil Procedure 702, 703, and 705 ("expert testimony"). Fed.R.Civ.P. 26(a)(2)(A). When an expert witness is "one retained or specially employed to provide expert testimony in the case or whose duties as the party's employee regularly involve giving expert testimony" the disclosing party must additionally provide an expert report for the expert witness. Fed.R.Civ.P. 26(a)(2)(B). The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.

Id. If a witness is not required to provide an expert report, the witness must nevertheless provide a disclosure of the subject matter on which the witness is expected to present expert evidence and "a summary of the facts and opinions to which the witness is expected to testify." Id. Therefore, to determine whether an expert report is required under Rule 26(a)(2)(B) or Rule 26(a)(2)(C), the Court must determine first whether the witness testifying is offering expert testimony. If the witness is offering expert testimony, then the Court must secondarily determine whether an expert report under Rule 26(a)(2)(B) or a summary of facts and opinions under 26(a)(2)(C) is required. Thirdly, the Court must determine whether the disclosures provided meet the standards set forth in Rules 26(a)(2)(B) and 26(a)(2)(C).

         Plaintiff complains that the deposition testimony of Defendant's experts Dennie and Branche "stray[s] well beyond the realm of a Rule 26(a)(2)(C) witness." Doc. 30 at 5. Therefore, Plaintiff contends that it should have been provided with an expert report for Dennie and Branche. Defendant argues that, even assuming arguendo that Dennie and Branche proffer "expert testimony" Defendant was not required to provide expert reports for Dennie or Branche, because they were not "retained or specially employed" for the purpose of litigation. Doc. 40 at 9-10, n. 6 (citing Va. Elec. & Power Co. v. Sun Shipbldg, & Dry Dock Co., 68 F.R.D. 397, 407-08 (E.D. Va. 1975) (distinguishing between an expert employed for purposes of the specific litigation as opposed to an employee who "though [he] be an expert. . . his contact with the case is not in his capacity as an impartial observer, but is instead as one going about his duties as a loyal employee.")).

         Dennie is Defendant's 30(b)(6) witness who was designated to offer testimony regarding the Shipyard's minimum hearing standard. Doc. 40 at 4. Dennie testified that she had personal knowledge that the minimum hearing standard was in effect at the time that Dowdle was denied employment. Id; see Doc. 40-1 ("Dennie 30(b)(6) Dep.") at 5-6. Defendant contends that Dennie makes her expert opinions based on her knowledge from working at the Shipyard and dealing with the hearing of employees at the Shipyard, including those who perform pipefitting work. Doc. 40 at 7-8.

         Likewise, Defendant contends that Branche based her expert opinion regarding the minimum hearing requirements and their relation to the safety and health of employees on over 25 years of employment with the Shipyard, her personal interaction with the Shipyard's hearing conservation program, her personal knowledge of the pipefitter position, and her personal experience designating high noise environments. Id. at 5-6; See Doc. 40-2 ("Branche Dep.").

         Based on Dennie and Branche's personal experience with the health and safety standards of the shipyard and the hearing requirements, Defendant contends that 26(a)(2)(B) expert reports were not required. Further, Defendant argues that the disclosures that it provided to Plaintiff meet the requirements of 26(a)(2)(C).

         In reply, Plaintiff argues that Defendant's experts should have provided expert reports because neither of the experts personally examined Dowdle. Therefore, their opinions are based, in part, on hypotheticals regarding a person with Dowdle's level of hearing impairment and not based on their personal observations or treatment of Dowdle's hearing. Doc. 44 at 4. ...

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