Kaczorowski v. SimplexGrinnell LP et al

MOTION to Exclude Declarationand Notice of Objection, MOTION to Strike 84 Reply to Response to Motion with Brief In Support

N.D. Ga.February 7, 2018

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION GREG KACZOROWSKI : CIVIL ACTION FILE : Plaintiff : NO. 1:16-CV-02967-MHC-LTW : v. : : SIMPLEXGRINNELL LP d/b/a : TYCOSIMPLEXGRINNELL : : Defendants : JURY TRIAL DEMANDED PLAINTIFF’S NOTICE OF OBJECTION AND MOTION TO STRIKE1 SECOND DECLARATION OF MITCHELL PEYTON With its Reply Memorandum, Defendant has filed a Declaration of Mitchell Peyton that it is a transparent sham, in that Mr. Peyton testifies in a manner which is directly contrary to his sworn deposition testimony and in apparent reliance on documents that are neither identified nor have they been produced in discovery. Mr. Peyton testified in this recent Declaration that Defendant advertised the Project Manager position which was filled by Mike Tracey – who was in his mid-forties (Bailey Dep., p. 31) – during the period May 1 to May 19. He testified in his Declaration that 1 Plaintiff’s Motion to Strike is not based on Rule 12(f) of the Federal Rules of Civil Procedure, but instead is based on Rule 103(a) of the Federal Rules of Evidence, in that Plaintiff is objecting to evidence (not a pleading) and moving to strike that evidence (and not a pleading). Case 1:16-cv-02967-MHC-LTW Document 85 Filed 02/07/18 Page 1 of 8 2 the reason that Mr. Kaczorowski did not receive the position is that he didn’t apply for the position. Peyton Dec., Par. 7-8. Although Defendant did not produce any of the documents relating to the advertisement of this position or the hiring of Mr. Tracey, one document that it did produce proves that it had already decided to fire Mr. Kaczorowski before May 19, 2015, but was simply delaying notification to him until May 29, 2015. Attached hereto as Exhibit 1 is an email produced by Defendant, dated May 19, 2015, which attached the separation agreement to be given to Mr. Kaczorowski on May 29, 2015. (Exhibit 1, Bates No. SimplexGrinnell ESI 000073). This email makes it is clear that Mr. Kaczorowski’s termination had already been decided before Mr. Tracey was hired and while the position ultimately given to Mr. Tracey was still vacant. Thus, Mr. Kaczorowski’s termination had been decided, but as far as he knew he still had a job as a Project Manager and, thus, he would have no reason to apply for the very same position. However, for purposes of this Motion, what is most important is Mr. Peyton’s clear and unequivocal testimony was that he did know why he did not give Mr. Kaczorowski another position instead of firing him. In his deposition, Mr. Peyton testified as follows: Q· · ·Did you offer Mr. Kaczorowski any other position within the company? A· · ·At which time? Q· · ·When he was fired. A· · ·No. Q· · ·Why not? Case 1:16-cv-02967-MHC-LTW Document 85 Filed 02/07/18 Page 2 of 8 3 A· · ·I don't recall the answer to that, other than I had the opportunity to get him a severance package and thought that was a positive for Greg at that point. Q· · ·You thought firing him and giving him a severance package was a positive? A· · ·Versus being fired for cause through a performance management action out of the business, yes. * * * Q· · ·Okay.· So you didn't have a basis for firing him for cause since you had not even done anything to show that he was failing to perform his job. THE WITNESS:· I didn't fire him for cause. Q· · ·(By Mr. Billips)· Right.· So it was a false dichotomy to say that it was better for Greg to get fired with the severance package than to get fired for cause because fired for cause wasn't on the table? A· · ·Not at that point in time, it wasn't on the table. (Peyton Dep., pp. 56:4 to 57:20). Mr. Peyton’s clear and direct testimony that he did not know why he didn’t assign Mr. Kaczorowski to this vacant position – rather than fire him – is in direct conflict with his Declaration testimony. For an affidavit to be disregarded as a sham, a party must have given clear answers to unambiguous questions that negated the existence of any genuine issue of material fact. Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir. 1984). Bell v. City of Auburn, Alabama, No. 17-11597, 2018 WL 388484, at *1 (11th Cir. Jan. 12, 2018). Case 1:16-cv-02967-MHC-LTW Document 85 Filed 02/07/18 Page 3 of 8 4 In this case, Defendant is attempting to use a clearly contradictory affidavit to negate a material dispute, on a motion for summary judgment where contradictory facts must be construed in favor of the Plaintiff. Irrespective of whether the affidavit is excluded, the contradictory testimony – and the inferences which a jury may draw from the timing of Mr. Tracey’s hire versus the decision to terminate Kaczlorowski -- clearly creates a genuine issue of material fact as to whether the RIF itself – and thus the stated reason for Mr. Kaczorowski’s termination – was pretextual. Further, Peyton’s new claim that he failed to give this position to Mr. Kaczorowski because he didn’t apply for it is ridiculous on its face. First, it is obvious that Mr. Kaczorowski would want to keep his job. Second, Defendant has pointed to no rule that indicates that existing employees have to apply for any new job that comes open if they want to remain employed in the very same job as the one which has been advertised. At the time this position was purportedly posted, Mr. Kaczorowski was working for Defendant as a Project Manager. He would have had no reason to apply for the very same position he already held, i.e., Project Manager. Thus, although Defendant had decided to terminate Mr. Kaczorowski, it delayed telling him of that decision until it filled the vacant position by awarding it to Mr. Tracey who, according to the first hand testimony of his co-worker Mr. Bailey, was in his Case 1:16-cv-02967-MHC-LTW Document 85 Filed 02/07/18 Page 4 of 8 5 mid-forties. (Bailey Dep., p. 41). Defendant has offered no contrary evidence as to his age. Peyton’s Declaration as to this motivation should be stricken, at least to the extent it is used on Defendant’s behalf. The purpose of requiring an applicant to submit an application for a position is that “[b]y showing that he applied, the plaintiff shows that the employer knew he was interested in the job.” Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir. 1984). Obviously, where the Plaintiff is employed in the very same position with the very same Defendant and has not indicated a desire to quit, this is at least prima facie evidence that he is interested in the job. The sham justification contained in the new Peyton Declaration, therefore, is deficient as a matter of law, particularly given that all that it proves is that Defendant deliberately concealed from Plaintiff its decision to terminate him while it filled a Project Manager vacancy Finally, Mr. Peyton testifies to a hypothetical “same decision” justification, i.e., that Mr. Kaczorowski would not have been granted this position even if he had applied for it because of alleged performance issues. However, this argument is a “same decision” defense, i.e., even if Defendant did not make the decision for the reason it claims, it would have made the same decision anyway. The problem here – and the reason that this testimony is irrelevant and should be rejected – is that the same decision defense is not applicable to age discrimination case. Case 1:16-cv-02967-MHC-LTW Document 85 Filed 02/07/18 Page 5 of 8 6 In an ADEA case, “no ‘same decision’ affirmative defense can exist: the employer either acted “because of” the plaintiff's age or it did not. Id. at 2352. Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010). Thus, Defendant is not entitled to introduce evidence of an alternative justification that did not motivate it but that it claims would have caused it to make the same decision, even if age had not been a factor. Thus, Plaintiff’s objection to Mr. Peyton’s Declaration testimony, at Par. 8, should be granted and the testimony stricken. Accordingly, Plaintiff asks that the Court grant his Objection and therefore grant his Motion to Strike the evidence in question from consideration in support of Defendant’s Motion for Summary Judgment. Plaintiff does, however, ask that the Court consider the evidence to the extent that it – and the attached Exhibit 1 -- support Plaintiff’s opposition to Defendant’s Motion for Summary Judgment. Respectfully submitted this day, February 7, 2018. /s/ Matthew C. Billips Matthew C. Billips Georgia Bar No. 057110 Orr, Brown & Billips, LLP One Atlanta Plaza 950 East Paces Ferry Road, Suite 2110 Atlanta, Georgia 30326 (770) 534-1980 (main) (770) 859-0753 (direct) (770) 536-5910 (fax) Email: mbillips@orrbrownandbillips.com Case 1:16-cv-02967-MHC-LTW Document 85 Filed 02/07/18 Page 6 of 8 7 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION GREG KACZOROWSKI : CIVIL ACTION FILE : Plaintiff : NO. 1:16-CV-02967-MHC-LTW : v. : : SIMPLEXGRINNELL LP d/b/a : TYCOSIMPLEXGRINNELL : : Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that, on this day, I served Plaintiff’s Plaintiff’s Notice Of Objection And Motion To Strike Second Declaration Of Mitchell Peyton, typed in Times New Roman 14 pt. type, with the Clerk of Court via CM/ECF, which system will automatically send e-mail notification of the filing to the following attorney of record for Defendants: C. Garner Sanford Georgia Bar No. 005020 garner.sanford@ogletreedeakins.com Deepa N. Subramanian GA Bar No. 278625 deepa.subramanian@ogletreedeakins.com Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 191 Peachtree Street, N.E., Suite 4800 Atlanta, GA 30303 T: (404) 881-1300 F: (404) 870-1732 Case 1:16-cv-02967-MHC-LTW Document 85 Filed 02/07/18 Page 7 of 8 8 Served this 7th day of February, 2018. /s/ Matthew C. Billips Matthew C. Billips Georgia Bar No. 057110 Orr, Brown & Billips, LLP One Atlanta Plaza 950 East Paces Ferry Road, Suite 2110 Atlanta, Georgia 30326 (770) 534-1980 (main) (770) 859-0753 (direct) (770) 536-5910 (fax) Email: mbillips@orrbrownandbillips.com Case 1:16-cv-02967-MHC-LTW Document 85 Filed 02/07/18 Page 8 of 8