The opinion of the court was delivered by: United States District Judge Elaine E. Bucklo
MEMORANDUM OPINION AND ORDER
Plaintiff London Collins ("Collins"), who is African American, brought suit against his former employer, SET Enterprises, Inc., alleging racial discrimination and a hostile work environment. SET moved for summary judgment, and Collins failed to address its arguments in support of dismissal of the hostile work environment claim, effectively abandoning that claim. As to the racial discrimination claim, however, I find that genuine issues of material fact preclude summary judgment, and SET's motion is denied.
As a preliminary matter, SET moves to strike two affidavits submitted by Collins in response to its motion for summary judgment, one by Darrall Horns*fn1 ("Horns") and one by Chadwick Fulwiley ("Fulwiley"). SET asserts that neither witness was properly disclosed, and that the affidavits are conclusory. As to the latter objection, SET takes issue with the level of detail provided in the affidavits, but this is not a basis for striking them, given that they are clearly based on personal knowledge and set forth facts that would be admissible in evidence. See Fed. R. Civ. P. 56(c)(4). The more serious question is whether Collins sufficiently disclosed the existence of these witnesses and the scope of their proposed testimony.
Both Fulwiley and Horns are former co-workers of Collins. In his affidavit, dated June 28, 2012, Horns asserts that he was employed by SET at its Sauk Village facility from August 2006 to August 2009. He worked as a machine operator during the time Eleanor Mulcahy ("Mulcahy") was general manager of the facility. It is undisputed that Mulcahy was the decisionmaker who fired Collins.
Horns described an incident that occurred sometime between March 2007 and Collins' termination in December 2007 in which the line went down several times in one day due to problems with a piece of machinery called a stacker. Mulcahy approached Horns and Collins while they were examining the machine and began yelling at them because the machine was down. Horns attests that he heard Mulcahy say to Collins: "You niggers act like you all don't know how to run a machine." Collins replied: "Why do I got to be a nigger?" Mulcahy did not respond, but demanded to know if Collins had called maintenance.
Horns additionally asserted that up to the time Collins was terminated, it was common for SET's hourly employees to leave the premises to go to the union hall. Horns averred that he did so on more than five occasions, although he could not remember the dates. On three occasions, he left while still on the clock, and this occurred while Mulcahy was general manager. Horns observed a number of employees leave SET to go to the union hall without clocking out. On Dec. 9, 2007, Horns left SET with Collins to go to the union hall. Their supervisor, Donald Bryant ("Bryant"), saw them leave, and neither of them clocked out. Collins and Horns drove to the union hall, attended a 10-minute meeting regarding contract negotiations, and then returned to SET.
Fulwiley was a machine operator at SET from 2006 to May 2008. In his affidavit, also dated June 28, 2012, Fulwiley stated that in October or November of 2007, he was present when Mulcahy approached Collins while they were clocking out, put her index finger in his face, and said, "Your black ass won't be working here much longer." Collins did not respond. Fulwiley and Collins then went to the union hall, where they reported Mulcahy's statement to Bill Jackson, the union president. Fulwiley added that at the time Collins was terminated, it was common practice for hourly employees to leave SET to go to the union hall without clocking out. Fulwiley named several employees who did this, and said he personally saw employees leave to go to the union hall without clocking out.
Additionally, Fulwiley averred that in January of 2008, he saw Roger Fowler ("Fowler") walk into the building without clocking in and with a McDonald's bag in his hand. He reported this to Mulcahy, who told him that Fowler would be punished. After not seeing Fowler for two days, Fulwiley observed Fowler returning to work. He informed Collins of this.
In his initial disclosures, Collins identified Horns as someone who: is believed to have knowledge including but not limited to the nature and quality of Plaintiff's work during the course of Plaintiff's employment with Defendant, instances of discrimination against Plaintiff as alleged in Plaintiff's Complaint at Law; and facts and circumstances surrounding the termination of Plaintiff's employment with Defendant, as he is aware of them.
In its interrogatories, SET sought additional information, including the subject matter of the information possessed by each witness and "the substance of any opinions and facts possessed by each person." Collins responded by referring SET to his initial disclosures. Collins did not identify Fulwiley in either his initial disclosures or in his responses to interrogatories.
In his deposition, conducted on Dec. 22, 2011, Collins testified that Horns and Fulwiley witnessed Mulcahy calling him a "nigger." Collins said that he had spoken to both Horns and Fulwiley about being witnesses in the case. Collins also testified that Fulwiley reported Fowler to Mulcahy for going to lunch without clocking out.
Under Fed. R. Civ. P 26(a)(1)(A), a party must disclose "the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses . . . identifying the subjects of the information." Rule 26(e) imposes a duty to seasonably supplement these initial disclosures when a party acquires additional relevant information. See Seddon v. Maytag Corp., No. 04-CV-4058-JPG, 2005 WL 2030629, at *2 (S.D. Ill. Aug. 23, 2005). Rule 37 provides that a party that fails to provide information or identify a witness as required by Rule 26(a) or 26(e) "is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). SET argues this rule is applicable in the instant case, and both Fulwiley's and Horns' affidavits should be stricken.
Collins asserts that his disclosures were acceptable because Collins identified Horns and the general subject matter of his testimony in his initial disclosures and because he identified Fulwiley in his deposition. SET's interrogatories may have warranted a more detailed response as to the substance of Horns' testimony, but I note that SET did not move to compel a more detailed response. Additionally, Collins should have listed Fulwiley in his initial disclosures, as he was listed in his EEOC questionnaire as a witness to the alleged discriminatory conduct. (See Dkt. No. 46--22, ¶ 11.) But although SET claims it was surprised by Fulwiley's existence and the substance of some of Horns and Fulwiley's proposed testimony, I note that SET did not attempt to depose either witness after Collins discussed them at his Dec. 22, 2011, deposition. Although SET contends that because the discovery deadline has passed, it no longer has the opportunity to depose these witnesses, the discovery deadline was extended three times following the Collins deposition for various reasons. If SET believed it needed to depose Fulwiley or Horns, there was ample time to raise this issue before filing its dispositive motion. Any failure to disclose the names of these witnesses earlier, then, was harmless. Cox v. Prime Fin. Mortg. Corp., No. Civ.A. 05C4814, 2006 WL 1049948, at *2 (N.D. Ill. ...