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Oveh v. Dal Global Services, Inc.

United States District Court, N.D. Oklahoma

January 30, 2018

EDWIN OVEH, Plaintiff,
v.
DAL GLOBAL SERVICES, INC., previously named as Delta Airlines Global Services, LLC, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL DISTRICT JUDGE.

         This is a pro se employment discrimination action in which Plaintiff Edwin Oveh (“Plaintiff”) alleges discrimination on the basis of race, color, and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Defendant DAL Global Services, Inc. (“DGS”) filed a Motion for Summary Judgment (Doc. 18) and Brief in Support (Doc. 19) on October 21, 2015. On November 9, 2015, Plaintiff filed a “Response in Opposition” (Doc. 20) in which he made a request under Fed.R.Civ.P. 56(d) that the Court either deny DGS's Motion for Summary Judgment or defer considering it “until parties have resolved all discovery issues including material facts still disputed.” (Doc. 20 at 1).[1] Notably, the discovery cut-off date in this case was August 28, 2015.

         DGS responded to Plaintiff's Rule 56(d) request in its Reply (Doc. 21). Subsequently, Plaintiff filed a Sur-reply (Doc. 22) without leave of this Court. Given the content of the Sur-reply, the Court will treat it as Plaintiff's substantive response to the summary judgment motion and will rule on that motion, as well as the Rule 56(d) request, in this opinion.

         I. Plaintiff's Rule 56(d) Request

         Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.”

         A Rule 56(d) affidavit must (1) identify the probable facts that are unavailable, (2) state why these facts cannot be presented without additional time, (3) identify past steps to obtain evidence of these facts, and (4) state how much additional time would allow for rebuttal of the adversary's argument for summary judgment. Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). A Rule 56(d) affidavit “must state with specificity how the additional material will rebut the summary judgment motion.” Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1264 (10th Cir. 2006) (internal quotation marks and alterations omitted). Additionally, a court “may not look beyond the affidavit in considering a Rule 56(d) request.” Cerveny, 855 F.3d at 1110.

         Plaintiff has submitted an affidavit in which he purports to have “personal knowledge of the fact that the Defendant has concealed vital evidence concerning this case that has not been released from their custody/possession.” (Doc. 20 at 4 [Pl.'s Aff. at ¶ 2]). Yet, this affidavit falls far short of satisfying the elements required of a Rule 56(d) affidavit.

         Plaintiff first avers that his coworker, John Kaykay, provided an incident report statement to their manager, John Watts (“Watts”).[2] (Id. [Pl.'s Aff. at ¶ 3]). Other than stating that he has “personal knowledge of the information that was contained in the report, ” (id. [Pl.'s Aff. at ¶ 4]), Plaintiff makes no attempt to identify the probable facts that this report would show, what steps he has taken to obtain evidence of these facts, and how the report would rebut DGS's summary judgment motion.

         Plaintiff also avers that DGS Supervisor Sander Amando (“Amando”) “provided an initial statement report, and then subsequently provided more additional statement reports for [sic] which contradicted previous reports including information and findings.” (Id. at 5 [Pl.'s Aff. at ¶ 6]). Yet these reports have clearly not been “concealed”; indeed, they were all attached to Defendant's Motion to Dismiss. (See Doc. 19 at 56-57, 69).

         Plaintiff submitted a second affidavit (Doc. 20 at 6; Doc. 22 at 8), presumably to bolster the first. This second affidavit is by Kaykay, and it states:

I wrote a statement report on 03/03/2014 at the request of the station manager (Mr. John Watts) regarding the aircraft incident that happened on 03/03/2014 involving Mr. Edwin Oveh. A copy of my statement was handed to Mr. John Watts upon completion of my duties that morning.

(Id.). This one-paragraph affidavit does not cure the insufficiencies of the first affidavit. Kaykay's affidavit does not identify the probable facts that are unavailable, state why these facts cannot be presented without additional time, identify past steps to obtain evidence of these facts, or state how much additional time is needed for rebuttal of DGS's argument for summary judgment. See Cerveny, 855 F.3d at 1110. Because Plaintiff has failed to meet the elements required of a Rule 56(d) affidavit, his request for additional discovery is denied.

         II. Defendant's Motion for Summary Judgment

         A. ...


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