The opinion of the court was delivered by: Golden, J.
MEMORANDUM OPINION & ORDER
Before the Court are the Defendant's Motion for Summary Judgment, (Doc. No. 14), and Motion to Strike (Doc. No. 17). The Motion to Strike must be disposed of before the Motion for Summary Judgment as it seeks the preclusion of evidence relied on by the Plaintiff in her response to the Motion for Summary Judgment. This case involves allegations of age, sex, and disability discrimination.For the reasons that follow, the Court will deny the Motion to Strike (Doc. No. 17) and grant the Motion for Summary Judgment (Doc. No. 14).
I. MOTION TO STRIKE (DOC. NO. 17)
In its Motion to Strike, the Defendant, Sears ("Sears"), moves the Court to strike any reference to an Unemployment Compensation Board of Review hearing transcript, (the "transcript"), in the Plaintiff's response to Sears' Motion for Summary Judgment. (Mot. 1-2.) Sears alleges that the Plaintiff, Barbara Stahlnecker ("Stahlnecker"), did not produce a copy of the transcript during discovery and only disclosed its existence by citing to it in her response to Sears' Motion for Summary Judgment. (Id.) Sears further alleges that Stahlnecker failed to serve the transcript on Sears when she served her response to Sears' Motion for Summary Judgment. (Id.) Sears was forced to request the transcript by letter. (Id.) Sears contends that Stahlnecker's actions amount to (1) a failure to make initial disclosures or to supplement discovery responses in violation of Rule 26(e) of the Federal Rules of Civil Procedure and (2) a failure to serve pleadings and other papers in violation of Rule 5 of the Federal Rules of Civil Procedure.
In response to the Motion to Strike, Stahlnecker contends that the transcript is admissible and references to it should not be struck. (Resp. II.)*fn1 This contention is clearly non-responsive. Stahlnecker does not deny that the transcript was responsive to Sears' discovery requests, that she failed to turn the transcript over in discovery, or that she failed to serve it on Sears along with her response to Sears' Motion for Summary Judgment even though she made numerous references to it in her response. Further, Stahlnecker does not provide any justification for her failure to turn the transcript over in discovery or to serve Sears with a copy the transcript.
After reviewing the transcript and Sears' discovery requests, the Court finds that the transcript is precisely the type of document that Sears sought in its request for production of documents. See (Doc. No. 17 Ex. 2 ¶¶ 2, 7, 16, 50). As a result, Stahlnecker was obligated to disclose its existence to Sears. Having concluded that the transcript was covered by Sears' discovery requests and not disclosed by Sears, the Court must now consider whether to exclude the transcript under Rule 37(c) of the Federal Rules of Civil Procedure, as Sears moves the Court to do.*fn2 When doing so, the Court is guided by four considerations: "(1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or willfulness in failing to comply with a court order or discovery obligation." Nicholas v. Pennsylvania State University, 227 F.3d 133, 148 (3d Cir. 2000); Gagnon v. Lemoyne Sleeper Co., Inc., No. 05-2081, 2008 WL 5061684, *1 (M.D. Pa. Nov. 28, 2008) (quoting Nicholas for the same proposition).
As to the prejudice consideration, the Court finds that any prejudice inflicted on Sears was cured by the Court's granting Sears leave to reply to Stahlnecker's response to Sears' Motion for Summary Judgment after Sears received a copy of the transcript. Sears has not articulated any other prejudice that it suffered as a result of Stahlnecker's failure to produce the transcript during discovery. There has been no contention by Sears that a timely disclosure of the transcript would have altered the course of discovery or changed the trajectory of this case. The Court further finds that no significant disruption resulted from Stahlnecker's actions. Finally, though the Court is troubled by Stahlnecker's conduct during discovery and her non-responsive filing in response to Sears' Motion to Strike, the Court cannot attribute any bad faith or willfulness on Stahlnecker's part. Thus, the Court will deny Sears' Motion to Strike (Doc. No. 17).
II. MOTION FOR SUMMARY JUDGMENT (DOC. NO. 14)
As stated above, this case involves allegations of age, sex, and disability discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, Title VII, 42 U.S.C. §§ 2000e to 2000e-17, the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, and the Pennsylvania Human Relations Act, 43 P.S. §§951-963. Stahlnecker sued Sears in state court. The action was removed to federal court. Sears filed a Motion for Summary Judgment as to each count of the Complaint.
Stahlnecker began working for Sears in 1974. (Compl. ¶ 3.)*fn3 Most recently, she worked as a sales associate in the washer and dryer department. (Id. ¶¶ 4, 8.) Stahlnecker suffers from debilitating knee problems. (Id. ¶ 21.) Her knee problems forced her to seek an accommodation from Sears during her employment. (Id. ¶ 21.) On December 21, 2006, Sears terminated Stahlnecker's employment. (Id. ¶ 16.) Stahlnecker was told that she was effectively retired and could not be rehired into the same position. (Id.) Stahlnecker was 58 years old. (Id. ¶ 33.) Stahlnecker believes that her age, sex, and disability were motivating factors in the termination of her employment with Sears. (Id. ¶¶ 20, 33-37, 40-43, 46-48, 51-67, 70.) Sears counters that Stahlnecker was not terminated based on an any illegal criterion. (Br. 8.) Rather, Sears contends that Stahlnecker was fired for twice violating company policy by forcing through two credit transactions on behalf of customers who did not have sufficient credit to cover their purchases.
(Br. 21-24.) These violations resulted in $5,571.00 worth of "charge backs"*fn4 to Sears. (Br. 22.)
Summary judgment should be granted if the record, including pleadings, depositions, affidavits, and answers to interrogatories, demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In making that determination, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The question is whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. It is not the role of the trial judge "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial," id. at 250, because "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255. At "the summary judgment stage, in other words, 'all that is required [for a non-moving party to survive the motion] is that sufficient ...