Frierson v. Atlanta Independent School System (22 F. Supp. 3d 1264, 2014)

ORDER

ORINDA D. EVANS, District Judge.

This civil action, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 (“Section 1981”), is before the Court on Defendant’s objections [Doc. 73] to the Non-Final Report and Recommendation (“R & R”) of United States Magistrate Judge Linda T. Walker [Doc. 70], The R & R recommends that Defendant’s Motion for Summary Judgment [Doc. 53] be granted in part and denied in part. Specifically, the R & R recommends (1) granting summary judgment on Plaintiffs race discrimination and retaliation claims under Section 1981; (2) granting summary judgment on Plaintiffs retaliation claim under Title VII; and (3) denying summary judgment on Plaintiffs race discrimination claim under Title VII. Defendant filed objections on September 9, 2013 [Doc. 73]. Plaintiff did not file objections. For the reasons set forth below, Defendant’s objections [Doc. 73] áre SUSTAINED, the R & R [Doc. 26] is ADOPTED IN PART and REJECTED IN PART, and Defendant’s Motion for Summary Judgment is GRANTED.

Defendant filed its Motion for Summary Judgment on November 26, 2012 [Doc. 53]. Plaintiff filed a Response on December 17, 2012, which included the declarations of Patrick Crawford and Teresa Smith as Exhibits S and T [Doc. 54]. On January 7, 2013, Defendant filed a Notice of Objection to the Declarations of Teresa Smith and Patrick Crawford [Doe. 67]. The basis for the Notice of Objection was Plaintiffs failure to reveal Smith and Crawford in discovery disclosures. Plaintiff filed no response to the Notice of Objection. The R & R was filed on August 20, 2013. The parties were given fourteen days from receipt to file any objections [Docs. 70, 71], Defendant filed objections on September 9, 2013 [Doc. 73]. Plaintiff did not file objections and did not respond to Defendant’s objections.

Pursuant to 28 U.S.C. § 636(b)(1), the Court must conduct a de novo review of those portions of the R & R to which Defendant objects. The Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-74, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). The remainder of the R & R, to which neither party offers specific objections, will be assessed for clear error only. See Tauber v. Barnhart, 438 F.Supp.2d 1366, 1373 (N.D.Ga.2006) (Story, J.).

The R & R presents the facts of this case in a section labeled Factual Background [R & R 2-22], While many of the facts in the Factual Background section are undisputed, that is not uniformly the case. Plaintiffs unilateral assertions which are not directed to opposing Defendant’s undisputed facts are confusing. Because this case is before the Court on a motion for summary judgment, the Court rejects the Factual Background section as stated but will provide a statement of undisputed facts which incorporates the portions of the R & R’s Factual Background section which are undisputed.

I. Factual Background

Unless otherwise noted, the following facts are undisputed.

Plaintiff, an African-American female, worked in the Finance Department of the Atlanta Independent School System (“AISS”) as the Manager of Fixed Assets from March 2006 until her termination on January 30, 2009 [Defendant’s Statement of Material Facts (“DSMF”), Doc. 53-2 ¶ 1], Plaintiffs employment was at will and her annual salary was slightly over $83,000 at the time of her separation [Id. ¶¶ 55, 56]. Four to six employees in the Fixed Assets group worked under Plaintiffs supervision, depending on the availability of surplus funds called “SPLOST funds” [PI. Dep., Doc. 57 at 19-22], The Fixed Assets group was responsible for creating and maintaining records of AISS’s fixed assets, and valuing these assets, including determining appropriate depreciation. Data on assets was stored in a computerized business system, the Lawson system. Asset management is one component of the Lawson system [PI. Dep. 79-80], The Lawson system’s Asset Management module (“A/M module”) allowed creation of inventories of fixed and capital assets within numerous specified classes and allowed entry of data to enable depreciation calculations [see, e.g., Doe. 53-7 at 36, 40, 42], During the time Plaintiff worked for AISS, the fixed assets inventory consisted of fixed assets valued at $5000 or more [PI. Dep. 87]. Given that AISS is a very large school system, the fixed assets inventory obviously was substantial.

Charles Burbridge, a male Caucasian, was hired in August 2007 by AISS’s Superintendent, Dr. Beverly Hall (African-American female) to be AISS’s Chief Financial Officer (“CFO”). In this capacity he serves on AISS’s senior cabinet, which advises the Superintendent on the operations of the district. Burbridge set about improving the Finance Department’s organization and governance. He also wanted to improve the Department’s ability to produce annual financial reports which would meet with the approval of the state auditing agency [Burbridge Dep., Doc. 58 at 13, 84], Plaintiff does not dispute the foregoing facts.

In October 2007 Burbridge hired Nader Sohrab for an Executive Director position in the Finance Department [DSMF ¶¶4, 22], Sohrab is male and is of Iranian descent. Initially Sohrab was Executive Director of Shared Services; however, in that capacity he undertook a project to improve AISS’s fixed assets accounting practices [Sohrab Dep., Doc. 60 at 14,115-16; Lawson Deck, Ex. E, Doc. 53-4 at 63]. In April 2008 Burbridge hired Nicole Conley-Abram, an African-American female, for the position of Deputy CFO. Sohrab reported to Conley-Abram. Sohrab became Controller and Executive Director of Accounting in the Finance Department in May 2008. In this capacity he supervised four groups: payroll, accounts payable, accounting and financial reporting [Sohrab Dep. 19]. Both Plaintiff and Sohrab testified that Plaintiff was under Sohrab’s direct supervision from May 2008 until her termination [PI. Dep. 123-25; Sohrab Dep. 71; see also Burbridge Dep. 24]. According to Plaintiffs testimony, Sohrab also met periodically with managers of various groups within the Finance Department to discuss topics of mutual interest. In May of 2008 these groups and their managers included: Fixed Assets (Veralyn “Faye” Frierson, African-American female); Accounts Payable (Dale Butler, African-American male); Payroll (Saundra Burgess, African-American female); Grants (Shirley Boykin, African-American female); Accounting (CeCe Selles, African-American female); School Based Services (John Freightman, African-American male); and Treasury Services (Sherry Davis, African-American female) [PI. Dep. 123-25].

For many years before he began working for AISS, Sohrab had been an auditor with the Georgia Department of Audits and Accounts [Sohrab Decl. ¶ 8]. This is the state agency that audits the financial statements and the Comprehensive Annual Financial Report (“CAFR”) of each school district in Georgia [Id. ¶¶ 8, 14], Sohrab had personally conducted the audits of the financial statements and CAFRs AISS submitted for fiscal years 2004-2006, and was very familiar with their considerable deficiencies in various areas, including fixed assets [Id. ¶¶ 8, 13; Sohrab Dep. 33-35, 39-42], In FY 2004 and FY 2005, AISS’s record keeping was found to be so bad that the books were declared unaudi-table [R & R 7; Lawson Decl., Ex. E, Doc. 53-4 at 63].

When Sohrab became Controller, in May 2008, Plaintiff had been Manager of Fixed Assets for just over two years. She was discharged on Sohrab’s recommendation to Burbridge on January 30, 2009.

When Plaintiff was hired in March 2006, she was told by Ed Holloway (Director of Accounting and Plaintiffs supervisor at that time) that the Lawson A/M module had been unreliable; it did not allow AISS to provide information to the auditors swiftly and accurately [PI. Dep. 78-80]. He charged her with the responsibility of investigating this problem, documenting the system’s processes and recommending solutions [Id. 78-82], According to Plaintiffs testimony, which is accepted for purposes of the instant motion, a “reimplementation” of the Asset Management module occurred under her supervision [Id. 82-83]. This reimplementation was specific to fixed assets [Id. 84], Plaintiff made the recommendation at the end of 2006 [Id. 81]. In mid-2007 Wanda (no last name provided), a consultant, was hired [Id. 83]. Plaintiff and Wanda developed a plan for the reimplementation, which was completed sometime in 2008 [Id. 83-85].

In an April 16, 2008 email to Taleada Williams, Plaintiff had described the problems Fixed Assets had encountered in the still ongoing FY 2007 audit, including that her prior senior accountant (Melanie Williams) “did a lot of manipulating and plugging numbers in order for the CAFR to roll forward” [Def. Ex. 18, Doc. 54-23 at 55]. Also, the schedules her prior senior accountant had provided to BFW “were purely spreadsheets that had been manipulated to tie to the CAFR” [Id.]. In the same email she stated that “... no Beginning Balances for the Asset accounts were loaded when Lawson was implemented; therefore, there was no way for my group to reconcile the GL [general ledger] to the A/M system. These discoveries have resulted in PY adjustments for this year’s [FY 2007] CAFR” [Id.].

Plaintiff recommended to Burbridge and Sohrab that the capital asset totals for FY 2007 be restated by about $20,000,000 [PI. Dep. 186; Def. Exs. 12-13, Doc. 54-23]. Burbridge emailed Plaintiff and Sohrab on February 22, 2008: “Better to take our lumps in 07 or 08 than later. We need to come clean as soon as we have an issue” [Def. Ex. 12, Doc. 54-23 at 53]. Sohrab replied: “I am more concerned with our operational deficiencies in understanding what needs to be done. This is the 4th year that the same excuse was used to adjust the capital assets for millions of dollars. I just hope we do not have to take the same lumps in, 2008. This also affects our E-rate funding if we cannot show improvement” [/d]. Burbridge wrote back: “Excellent thinking. This is a large adjustment and if we do this repeatedly, we have a process that is not working” [Id.].

In 2007 or early 2008, AISS on Plaintiffs recommendation hired an outside vendor, Maximus, to conduct an inspection of AISS’s fixed assets, and to create a comprehensive, up-to-date list [PI. Dep. 85, 86]. Plaintiff worked with Maximus on this project [Id. 85], Maximus completed its inventory in about May 2008 [Id. 86]. The new data was loaded into the system in stages by the Fixed Assets unit [Id. 114]. The job was completed on an unspecified date. Plaintiff estimated in her deposition that the files were received from Maximus “probably up until November 2008” [Id. 86] and alternatively, “up through September” [Id. 222]. However, on September 18, 2008, Plaintiff sent an email to Sohrab that said in part, “I wanted you to be aware of the financial impact of the Maximus inventory results.... For the first time ever, we have AM reports that support our activity for the year” [PI. Dep. 223; Def. Ex. 26, Doc. 54-23 at 91-92]. •

Note G

FY 2007 (July 1, 2006 to June 30, 2007) was the last fiscal year for which AISS used outside accounting firm BFW to prepare its CAFR. In 2007, Plaintiff was informed that she would be in charge of preparing Note G for AISS’s FY 2008 CAFR [Id. ¶ 23; PI. Dep. 90-91, 106-09; DSMF ¶ 69]. This would be the CAFR covering the period July 1, 2007 to June 30, 2008. Until November 2007 Ed Holloway was still Plaintiffs supervisor; for this reason the Court infers Holloway made the assignment [see PL Dep. 105-08]. Holloway left the school system in November 2007 [DSMF ¶ 18]. Plaintiff testified that for FY 2007, external auditors were allowed to, “basically, complete [the CAFR], kind of handhold the District throughout 2007. But for 2008, we would be responsible for performing a CAFR and that’s when the duty of completing a Note G became a task of mine” [PI. Dep. 93-94].

Note G is a standard part of AISS’s CAFR which is specific to capital assets. It is a single-page document, entitled “G. Capital Assets.” Each of the Note G versions in the record states “Data taken from Lawson Fixed Asset Reports” in the upper left-hand corner. Note G is not iri narrative format; it consists of a list of capital asset classes down the left-hand side of the page with corresponding columns of dollar figures to the right which show (1) beginning values of each of the various classes of capital assets; (2) prior year adjustments if any; (3) beginning values restated to take into account a prior year adjustment if any; (4) asset acquisitions within each class; (5) asset disposals within each class; (6) reclassifications if any; (7) CIP transfers; and (8) ending values of each asset class. Numerous samples of Note G, both for FY 2007 and FY 2008, are in the record [see, e.g., Doc. 53-7 at 36, 40, 42].

Sohrab gave Plaintiff a deadline of September 15, 2008 to complete Note G for the 2008 CAFR. A string of emails between Plaintiff and Sohrab reflect that Plaintiff knew the deadline was September 15, 2008 [see Def. Ex. 23, Doc. 53-7 at 56]. On Friday, September 12, 2008, Plaintiff sent an email to Sohrab stating in part that “Note G is due on Monday” [Id.]. “You're doing all of your tasks well”

In September of 2008 (the record does not contain an exact date), Plaintiff and Sohrab met to go over Plaintiffs job description [PI. Dep. 136]. This was part of an initiative by Nicole Conley-Abram to review job descriptions of all persons in the Finance Department [Sohrab Dep. 24-25, 104]. Plaintiffs job description is in the record as Defendant’s Exhibit 7 [Doc. 54-23 at 17; see also PI. Dep. 72-77]. It includes such duties as “Develop, communicate and maintain the District’s Fixed Assets inventory,” “Train, support and evaluate assigned staff,” and “Review and approve financial data identifying and correcting problems insuring accuracy of the Fixed Assets inventory.” Plaintiff testified in her deposition that she had never seen the job description before the September 2008 meeting with Sohrab. She denied having any knowledge until then that she was responsible for maintaining a Fixed Assets inventory or correcting problems ensuring accuracy of the Fixed Assets inventory [PI. Dep. 74-77]. Plaintiff states that in the context of this conversation concerning her job description, Sohrab said she was “doing all of [her] tasks well” and that she had “no worries” [PI. Dep. 136]. Sohrab’s deposition testimony was that this discussion was not an evaluation [Sohrab Dep., Doc. 60 at 96, 104, 107-08]. However, he was not asked specifically in his deposition and did not state in his declaration whether he made the statements referenced by Plaintiff during their discussion. Therefore, the Court accepts Plaintiffs assertion as to what Sohrab said as undisputed.

Friction between Sohrab and Plaintiff

On Monday, September 8, 2008 Bernadette Peterson. sent an email jointly addressed to Sohrab and Plaintiff which said: “Can you please confirm if you are available to participate in interviews for the Fixed Asset Project Manager position next Monday, September 15, from 10:00 a.m. to 3:00 p.m.? Please advise” [Def. Ex. 23, Doc. 53-7 at 57]. On Friday, September 12, Plaintiff sent a return email to Glenn Melendez (apparently Peterson’s assistant), with copy to Sohrab. Plaintiffs email said:

Glenn, I cannot commit to an entire day of interviewing. Finance has a September 15 deadline that my group is currently working on our part. I apologize for the late notice, but I am finally getting through my many emails from this week.

The only day that I am free next week is Wednesday.

[/<£]. On the same day Sohrab sent a reply email to Plaintiff with copy to Melendez which said: “Faye, this is an important initiative and your present [sic] is required. We had already discussed this date and need to move forward with this project. At the end this is your responsi-. bility and you are required to play the lead role” [Id. at 56]. A few minutes later, Plaintiff sent an email back to Sohrab with a copy to Nicole Conley-Abram which said:

Nader, Note G is due on Monday and I believe that takes priority over this initiative. Glenn moved forward with scheduling these interviews without hearing back from me. If you are available, then you can sit in for Finance. This is an important initiative; however, I think that it is important that I make sure that my group has completed all necessary for the DE 46 and the CAFR.

We had not discussed September 15 for the interviews of the PM.

I would appreciate the courtesy to discuss these matters in person, rather [sic] include Glenn on an email with that message.

[Id.l

On Monday, September 15, at 7:40 a.m. Sohrab sent an email to Plaintiff, with copy to Nicole Conley-Abram, which said:

Faye, we understand that we all have deadline [sic] which we need to meet. Due to the current qualification of our report and material weaknesses reported on our Fixed Assets, you need to attend and lead this project. We can extend the deadline for Note G for one day, but your attendance is required for the interviews. This set on [sic] interviews were discussed with you by Glenn and me, in person. Please ensure that you are there and part of the interview process.

I would have appreciated the courtesy of a discussion but none was extended by you, only an email that you cannot attend.

[Def. Ex. 24, Doc. 53-7 at 59 (emphasis in original) ].

On Monday, September 15, at 9:16 a.m. Plaintiff emailed Sohrab, with copies to Conley-Abram and Burbridge as follows: “Nader, per our conversation this morning, I will participate in the interviews this morning; however, I am concerned with the direction of this project and your communication” [Id. at 58]. The email then went on to recap Plaintiffs version of preceding events. The main points of the email are summarized as follows:

(1) the decision to hire a project manager had not been her decision. Further, she had voiced her opinion that the project manager position should be staffed with someone onsite rather than bringing in someone new.

(2) when Glenn Melendez had initially contacted her they had not discussed a date for interviews and “I have not yet met him in person.”

(3) she had received an invitation to attend the interview but she had declined.

(4) Sohrab had come by her office that morning (September 15) and had told her that she had to be a part of the interviews and that Note G could be delayed by “a day or so.” Sohrab had stated to her that he was disappointed that she didn’t come by his office instead of responding in an email with copy to Melendez. She had told Sohrab that it was inappropriate for him to copy Melendez on his September 12 email and his response had been “you started it.” Plaintiffs email then went on to say:

Not only was the statement unprofessional and unnecessary; the forum was inappropriate as well. My employees heard the entire conversation and you make the comment. In order for us to move forward, I need to know that you support me and respect my deadlines.

The email closed with the following:

I am requesting a meeting with you, Nicole and Chuck so that I can have a clear picture' of the project that was decided for my area. I want to make sure I am clear on my role and who will support me with getting buy-in from the other departments.

Plaintiffs email also stated (in bold print) that her senior accountant, Tanisha Oliver, was “having a problem with the [depreciation calculation” for the 2008 Note G and “this was one of the same issues that caused a material weakness on the FY07 audit” [Def. Ex. 24, Doc. 53-7 at 58],

Preparation of the FY 2008 Note G and the State Auditor’s Report on the FY 2007 Financial Statements

On September 18, 2008, Plaintiff emailed Sohrab [Def. Ex. 26, Doc. 54-23 at 91] stating that Maximus’ work was complete; the inventory numbers had required adjustments (a total net prior year adjustment of $53.6 million), and stating “[f]or the first time ever, we have AM reports that support our activity for the year.” The email attached a Note G for FY 2008 marked “draft” which highlighted certain entries and which noted in the lower left hand corner:

* * *Highlighted areas are pending:

CIP — Information needed from Facilities

Charter Schools — Waiting on Audit reports

Depreciation by Function code — Will need assistance from IT

[Id. at 93].

The September 18 version of Note G did have beginning balances listed for construction in progress and CIP charter schools. It did not have any dollar amounts in the column “CIP transfers.”

According to Plaintiffs testimony at some point after September 18, 2008 Soh-rab arranged for the CIP (transfers) dollar amounts for FY 2008 to be provided to Plaintiff by the Facilities department [PI. Dep. 180-81]. Plaintiff obtained the Charter Schools information from another department [Id.].

On October 20, Plaintiff sent Sohrab a revised version of Note G for the 2008 CAFR along with an email which said “at this point, I consider Note G complete” [Def. Ex. 27, Doc. 53-7 at 64], This version of Note G added a column of dollar amounts for “CIP transfers.” It added a $16,000 prior year adjustment for charter schools. It did not contain any mention of capital leases, which later turned out. to represent a beginning value of $13,785,648 for FY 2008, and it did not acknowledge that this item was missing. The Court notes that $13,785,648 was the ending value for capital leases for FY 2007 [Doc. 53-7 at 44]. The October 20 version of Note G did not mention Education Reform Success, or acknowledge that it was missing. Education Reform Success is not mentioned in the FY 2007 Note G; it may have been a new capital item for FY 2008.

On about October 20, 2008, the Georgia Department of Audits and Accounts sent out an Independent Auditor’s Report regarding the results of its audit of AISS’s financial statements for FY 2007 [PI. Ex. W, Doc. 54-25 at 2], The report was addressed to AISS’s Superintendent and members of the School Board, and also to the Governor of the State of Georgia, members of the General Assembly and members of the State Board of Education. Of particular importance to the instant case, the report said:

The School System did not maintain adequate accounting records related to capital assets activity. The accounting records did not provide an adequate accounting for the $-20,399,249 restatement of beginning net assets for capital assets in the governmental activities, disclosed in Notes 2 and 5 to the basic financial statements. Capital assets additions and deletions were not properly accounted.for in the governmental activities. In addition, accounting records did not provide adequate accounting of current year depreciation expenses and accumulated depreciation for the governmental activities and business-type activities. We were therefore, unable to examine sufficient evidence in support of the capital assets amounts and disclosures, and we were unable to satisfy ourselves by other means as to its accuracy.

[Id. at 4],

The state auditors found fourteen “material weakness audit findings” (a technical term meaning that “a significant deficiency, or a combination of significant deficiencies, that results in more than a remote likelihood that a material misstatement of the financial statements will not be prevented or detected”) [Def. Ex. 8, Doc. 53-7 at 7]. One of the findings was for fixed assets [Id. at 17]. The audit report pointed out that some of the “material weakness” findings, including the findings for fixed assets, were repeat findings from previous years [see, e.g., Def. Ex. 8, Doc. 53-7 at 13, 14, 16, 18]. The state auditors issued a qualified opinion for FY 2007 [Sohrab Decl. ¶ 22],

The state auditors issued a separate report on the 2007 CAFR. Its findings paralleled the findings in the October 20, 2008 Independent Auditors Report. Regarding the FY 2007 CAFR, Plaintiff stated in her deposition that she had “sporadic” input [PI. Dep. at 103] and also that she was in “constant” contact with the outside auditor, BFW [Id. at 162], She asserts that Sohrab took the lead in assisting BFW in putting the 2007 CAFR together. So far as the record reflects, Plaintiff was not an author of any narrative text in the 2007 CAFR and was not “the producer” of the final version of Note G which appeared in it. If anyone was “the producer” it was the outside firm, BFW, which signed off on the 2007 financial statements, and on the 2007 CAFR including Note G. Yet, it is undeniable that the lion’s share of the fixed assets data BFW reported in the FY 2007 financial statements and the 2007 CAFR did come from data generated by the fixed assets unit. It is also undisputed that after Plaintiff and Wanda reimplemented the A/M module, the depreciation function did not work properly. Finally, the admitted errors by Plaintiffs prior senior accountant undermined the integrity of the Lawson system’s data and processes, resulting in even greater unreliability of the system’s output.

In addition, the record reflects numerous emails between Plaintiff and BFW’s representatives regarding fixed assets data and formulation of Note G for FY 2007 [Def. Exs. 11, 14, 15, 16, 17, 18, 19, Doc. 53-7; PL Dep. 158]. In a February 6, 2008 email from Plaintiff to Francis Harley entitled “Capital asset audit issues,” Plaintiff responded to eleven requests Harley had made for information. Harley was BFW’s representative who was responsible for auditing capital assets [Def. Ex. 11, Doc. 54-23 at 51; PL Dep. 159]. The relevant point is not that Plaintiff was in charge of the FY 2007 Note G; it is simply that her argument in her brief that she had no responsibility for the FY 2007 CAFR, or Note G in the 2007 CAFR, is at variance with the undisputed facts in the record.

On about November 3, 2008, Dr. Hall, Superintendent of AISS, received an anonymous letter, the main points of which were the following:

I am an employee of Atlanta Public School and was recently contacted by a local television station to give an anonymous statement as a member of the Finance staff. I am not sure how I was chosen or if I am the only person who was contacted. I have assumed that the word is out about our recent State Audit. I am not sure how I became a target or if I am the only target.... I thought that it would only be fair for you to hear first hand what I would tell the media if I decide to grant the interview. Their questions to me were around my opinion of the changes in Finance and the leadership. I have witnessed numerous CFO, Directors and managers, but never have I seen a team go from great momentum to falling apart as of recent....

Today things are sadly different.... The division really became visible when Mr. Sohrab was named Controller. He brought pure division with all of us. It appears to most of us that he has never worked on a team nor with diversity.... It is not by chance that our Audit findings increased from last year. We were all working hard to eliminate these findings before management changed. When the FY07 Audit began, the managers wanted all employees to be involved and build relationships; however, when Mr. Sohrab was named Controller and the point person for the Audit, he created road blocks for all of us. It was obvious to all of us that he wanted to be the center of all discussion and he didn’t respect any of us who had been here for a while.... I have sat back and watch a lot go on in Finance and I can truly say that the result of our Audit is a pure reflection of Mr. Sohrab’s inability to work with others....

I am asking that you please address these issues before our FY08 Audit. . If you don’t trust what I am saying, I encourage you to talk to others in the Finance team.... Reach out to the staff and hear their voices. I am almost certain that I am not the only employee that has been contacted by the media; however, I don’t want to air our dirty laundry to the public....

[Def. Ex. 2, Doc. 58 at 104-06]. While the anonymous letter was addressed to Dr. Hall, copies were sent to members of the City of Atlanta’s Board of Education.

On November 12, 2008 Plaintiff emailed Sohrab, attaching an updated FY 2008 Note G. The email said, “Attached is the updated Note G with the corrections to the formulas. Note, there has been a revision due to Discontinued Buildings that Facilities omitted when Maximus performed inventory. Thanks for the catch.” On Tuesday, November 18, Sohrab emailed Plaintiff: “After a review- of the new note columns L & N on line 47 are now correct but line 51 does not add across when adding columns F & H. Let’s make sure that all columns and cells add across and down” [Def. Ex. 82, Doc. 53-7 at 68]. Plaintiff emailed in response on November 18: “I will have Tanisha take another look at the formulas” [Id.]. In a later email on November 18 Plaintiff said, “Tanisha has reviewed and corrected all formulas. The Nutrition/Business type just seemed to slip through the cracks” [Def. Ex. 33, Doc. 54-23 at 105]. On November 26, Plaintiff emailed Sohrab, stating: “Attached is the revised Note G for FY08 to reflect the Beginning Balances that you submitted for the CAFR” [Def. Ex. 34, Doc. 53-7 at 71]. The attached revised Note G, which was marked “Draft,” for the first time added one new beginning balance for “Buildings.” Also, it included Capital Leases at a beginning balance of $13,785,648 and ending balance of $13,785,648. It also added “Education Reform Success” with beginning and ending values of $7,609,587 [Id. at 72],

On January 21, 2009, Plaintiff emailed Sohrab on the subject “FY 2008 Note G— PY Reconciliation” [Def. Ex. 39, Doc. 53-7 at 73]. The attached revision of Note G did not include Capital Leases or Education Reform Success [Id. -at 74], even though they had been included in the November 26 version of Note G.

On Friday, January 23, 2009 Plaintiff emailed Teresa Smith (Financial Reporting Manager) with a copy to Sohrab on the subject “Note G Capital Leases-Final.” The email said “Here is the updated Note G with tbe Capital Lease information” [Def. Ex. 40, Doc. 53-7 at 75], The attached copy of Note G did include Capital Leases in the list of assets at a beginning balance of $13,785,648 with a prior year adjustment of $2,638,066 for an ending balance of $11,147,582 [Id. at 76]. This version, however, did not mention Education Reform Success even though it had been included before in the November 26 version.

On January 30, 2009 Plaintiff was terminated by letter from the Superintendent, Dr. Hall [Def. Ex. 41, Doc. 54-23 at 127; PI. Dep. 16].

After Plaintiffs termination, AISS effected a reimplementation of the A/M module [Burbridge Dep. 72-73]. When the 2008 CAFR was completed and turned in, the state auditors made one or two material weakness findings, at least one of which was fixed assets [Sohrab Dep. 126]. This time there was an unqualified opinion [Id.]. In 2009, there was only one material weakness finding, again in fixed assets, and in 2010, there were no findings [Id.].

Personnel changes after Plaintiffs Departure

In December 2008 Burbridge and Soh-rab hired Crissi Calhoun, Caucasian female, and Teresa Smith, African-American female. They both were given the title Accounting Supervisor.

AISS did not hire a new manager for the Fixed Assets group after Plaintiff left. Immediately after Plaintiffs termination in January 2009 her duties were split between Teresa Smith and Crissi Calhoun. The accounting functions were placed under Crissi Calhoun and the financial reporting functions were placed under Teresa Smith [Sohrab Decl. ¶ 32]. They both were given the title Accounting Manager [Id. ¶¶ 32, 33]. At some point in the summer of 2009 Crissi Calhoun was made Manager of the Accounting group. Three employees from the Fixed Assets group were placed in the Accounting Group under Crissi Calhoun’s supervision. Sandy Mormon, a female Caucasian who had been a consultant, was hired into the Accounting Group. Teresa Smith became the Manager of the Financial Reporting group; two employees worked in this group under Smith [see PI. Ex. B, Doc. 54-3].

Testimony about Sohrab’s conduct and demeanor

Frierson testified in her deposition about her perceptions of Sohrab’s conduct and demeanor. She said she told CFO Burbridge before Sohrab was made Controller that Sohrab “seemed a little rude, not a team player” [PI. Dep. 153]. She described a management team meeting prior to April 2008 when Sohrab was “rude and kind of condescending” [Id. 123] to the black women in the group. She did not name the persons who were the object of Sohrab’s alleged rudeness. The individuals present were Karen Amos (Budget Director, African-American female); Saundra Burgess (Manager, Payroll, African-American female); Dale Butler (Manager, Accounts Payable, African-American male); John Freightman (Manager, School Based Services, African-American male); Sherry Davis (Manager, Treasury Services, African-American female); CeCe Selles (Manager, Accounting, African-American female); plus Plaintiff as Manager of Fixed Assets and Sohrab [Id. 123-25]. Plaintiff reported Sohrab’s rudeness to Colinda Howard (a lawyer who worked in the Office of Internal Resolution; African-American female), who Plaintiff states took no action [Id. 123, 125],

Plaintiff also testified in her deposition that at management meetings where Crissi Calhoun, a white consultant (or two other white female consultants) were present Sohrab “... would allow them to speak. If he disagreed with them, he voiced it in a different way. If he disagreed with us, he would try to cut us off....” [Id. 127]. She testified that Sohrab did not similarly mistreat the African-American male managers Dale Butler and John Freightman [Id.]. He did not say negative things to them when they were talking. “He wouldn’t cut them off, ever. He was very agreeable with them when they spoke on an issue, even if he did not agree on it, he was never combative or anything like that; but with the black females, he would go back and forth, back and forth. And he never did that with the white females, that would be in the meetings” [Id. 127-28].

Burbridge testified in his deposition that there were multiple employee complaints regarding Sohrab’s “management style” and that he took steps to help Sohrab “improve his style” and “work[] on his communication skills” [Burbridge Dep. 80-81]. He stated he had had Nicole Conley-Abram, Deputy CFO, and Sherry Davis, Manager of Treasury Services, work with Sohrab on this issue [Id. 89].

Plaintiff testified that before April 2008 she reported to Colinda Howard that Soh-rab had made a racist comment. Plaintiff stated she had heard Miracle Carroll (African-American female, accountant in the Finance Department) say to Sohrab that she was going to lunch; he then said “are you going to get fried chicken?” Carroll then said, “Why no, why would you say that?” And he said “don’t you all like fried chicken?” [PI. Dep. 151]. Plaintiff was disappointed in Howard’s reaction to her complaint. Plaintiff testified: “I wasn’t expecting her to say he could fire me for wearing a red dress if he didn’t like red” [Id. 152], Plaintiff testified: “So, I just felt like there was no support there on how to deal with a manager that you felt like just did not like you” [Id. 152-53].

In October 2008 Nicole Conley-Abram told Plaintiff she did not think Plaintiff and Sohrab were going to be able to work together; Conley-Abram asked Plaintiff if she would like another assignment within AISS. Plaintiff said she did not want a position outside the Finance Department because her field is accounting [Id. 118].

Plaintiff was asked this question in her deposition:

Q. Is it your position that he behaved this way to you because of your race?

A. I can’t ... I don’t know why he behaved that way toward me. I don’t know. It could be.

[Id. 248].

On or about Friday, October 10, 2008 Miracle Carroll reported to Plaintiff a remark Sohrab had made in her presence. Plaintiff did not hear Sohrab’s remark and has no first-hand knowledge of what Soh-rab said. The record contains numerous versions of what Sohrab allegedly said. Plaintiff gave the following testimony in her deposition:

Well, when Miracle came to me, I was the fixed asset manager... At the time, Miracle did not have a manager. And she came in my office, very upset one day, stating that she was in a conversation with Mr. Sohrab and he made the comment that [Defendant’s] problem was that it was run by a bunch of black women. And I, in turn, called Nicole Conley-Abram who [Sohrab] reported to, to ask her, you know, what should I do? Should I refer Miracle to her? And she informed me to call OIR. So, I then called OIR. They gave me Colinda Howard’s number. I called Colinda Howard and she told me to give Miracle her cell phone number.... Nicole asked me to document [the incident].

[Id. 12-14]. Defendant objects to this testimony concerning Sohrab’s remark as hearsay. The R & R determined that Plaintiffs testimony is not hearsay. Also, the R & R determined that Conley-Abram’s direction “to call OIR” is an admission of a party opponent which is not hearsay. Defendant’s objections are considered below in the Legal Discussion section.

On Monday, October 13 Miracle Carroll sent an email to Colinda Howard, stating as follows:

Here’s the scenario (Short Version):

Co-worker’s are huddled around a cubicle. A conversation started up ... upper manager-Male, consultant (Blk Female), employee (Me).needless to say, we were told that we don’t listen. A consultant said, “You haven’t heard that Black Women-don’t know how to be quiet?” I clinched my teeth. Manger said, “Oh, I got it now.” Consultant continued, “My bother say that all the time about black women.” Manager mumbles, “that explains what the problem is here at APS.” I was stunned.

[PI. Ex. H, Doc. 54-8 at 3-4 (errors in original) ]. Defendant specifically states it has no objection to the Court’s consideration of this evidence [PSMF ¶ 207; Defendant’s Response to Plaintiffs Statement of Material Facts, Doc. 66 ¶ 207]. This concession by Defendant waives not only any potential hearsay objection, but also waives any objection Defendant might have based on the fact that the statement is contained in a document, rather than in deposition or declaration testimony.

On October 14, 2008 Plaintiff sent a letter to Conley-Abram memorializing Plaintiffs version of what Carroll had said to her:

Per our conversation, earlier this week, Miracle Carroll came into my office upset over a comment that Nader made while in a conversation with she and Anita. Miracle stated that she, Nader and Anita were discussing something related to Accounting, when Anita interrupted Nader and he said “Let me finish”. Miracle stated that [Anita] then replied “Don’t you know you can’t talk over a black woman?” Miracle then stated that Nader said “Well, that explains [AISS’s] problems, being run by a bunch of black women”.

Miracle appeared very upset when she entered my office. After listening to her, I called you because Miracle has no direct Manager at this time. You then instructed me to give Colinda Howard a call. I called Ms. Howard and explained to her what Miracle told me and she told me to give Miracle her cell phone number and she would help her. I did exactly that and asked Miracle to call her as soon as possible.

[Lawson Dep., Doc. 59 at 99; Def. Ex. 9, Doc. 53-7 at 29]. Defendant objects to this evidence concerning Sohrab’s remark as hearsay; the R & R ruled that it is not hearsay. Defendant’s objection to the R & R’s ruling is considered below in the Legal Discussion section.

A third version of the same incident was offered in a February 12, 2009 email sent to Howard by Anita Fox, an African-American female who worked as a consultant in the Finance Department:

I was involved in a very casual conversation with my Comptroller, Nader Soh-rab, along with a co-worker, Miracle Carroll. The decision was centered on the way we handled the process for a particular account. Nader was explaining how it should be done and Miracle was debating her point. After the two of them went back and forth for a few minutes, I made the comment, generally speaking, saying, “My brother has always said black women don’t listen.” Nader looked at me as if he didn’t know what to say. After a few moments, he said “really, is that what it iá?” Another co-worker walked up and needed to ask Nader a question, he then walked into his office and we all followed him in. That was the end of the general conversation and we were back to business as usual.

[Lawson Dep. 100, Def. Ex. 2, Doc. 53-12], This version of Sohrab’s comment is acknowledged in the R & R. Neither side has objected to this evidence and thus it is admissible.

Sohrab was asked about the Carroll incident in his deposition. He denied having made any statement involving race, stating that he had been “shocked” by Fox’s statement and that he had walked away without comment upon hearing Fox’s statement [Sohrab Dep. 94-96]. This is admissible evidence.

In January 2009 AISS undertook an investigation of the allegations in the November 3 anonymous letter to Dr. Hall [DSMF. ¶ 116; Lawson Decl. ¶ 14]. It hired Penn Payne, a lawyer, to conduct the investigation [Lawson Decl. ¶ 14]. Payne’s report is directed to the claims in the anonymous letter but includes discussion of Plaintiff Frierson’s termination and her claim that Sohrab discriminated against her [see generally Lawson Decl., Ex. E, Doc. 53-4 at 59-85]. Ms. Payne interviewed seventeen persons in the Finance Department and produced a confidential report which she provided to AISS on about April 16, 2009. The interviewees included Teresa Smith and Patrick Crawford, employees in the Finance Department who are African-American. Payne’s report (“First Payne Report”) is in the record as Exhibit E to Nicole Lawson’s Declaration [Doc. 53-4 at 59-85].

On April 30, 2009 Plaintiff filed a timely charge of race and gender discrimination with the EEOC based on her termination [Complaint, Doc. 1 ¶ 11].

On June 30, 2009 AISS revised its internal rules to redefine the term “fixed assets” to mean “land of any value and property valued at $50,000 or more” with certain other qualifications.

In October 2009, AISS hired lawyer Penn Payne again, this time to investigate a race discrimination complaint filed with the EEOC by Shirley Boykin in September of 2009. Boykin, an African-American, was Manager of the Grants unit in the Finance Department. She reported to Sohrab. According to the Second Payne Report she was hired by Sohrab in August 2008 [Lawson Deck, Ex. E, Doc. 53-4 at 70]. She was terminated effective-November 13, 2009. Ms. Payne interviewed seventeen individuals in the Finance Department, including Teresa Smith, Patrick Crawford and Shirley Boykin. Payne’s report (“Second Payne Report”) is in the record as Plaintiffs Exhibit N [Doc. 54-14].

The Second Payne Report was provided to AISS on about October 17, 2009. The Report was supplemented by a letter dated October 19, 2009 which repeated some of what was in the Report and which also informed Defendant that “other employees might come forward with claims of race discrimination” [PL Ex. N, Doc. 54-14 at 3].

A right to sue letter was issued by the EEOC on or about August 16, 2010 [Complaint, Doc. 1 ¶ 12].

The instant case was filed .on November 19, 2010. The initial complaint charged race and gender discrimination; however the amended, final complaint charges only race discrimination.

In 2010 the Fixed Assets unit was formally abolished and Patrick Crawford lost his job [Burbridge Dep. 69]. In May 2012 Teresa Smith resigned her employment with AISS [Smith Deck, Doc. 54-21 ¶ 4].

On or about July 31, 2012, in response to a subpoena, copies of both of Ms. Payne’s reports and the October 19, 2009 letter were sent to Plaintiffs counsel by Ms. Payne. Presumably they were provided to Defendant’s counsel as well, either then or perhaps earlier.

The discovery period in the instant case ended on October 26, 2012. Crawford and Smith signed declarations supporting Plaintiffs race discrimination claim on December 11, 2012 and December 14, 2012, respectively. They were filed on December 17, 2012 along with Plaintiffs response to Defendant’s motion for summary judgment.

II. Legal Discussion

A. Evidentiary Rulings

The R & R determined that the declarations of Patrick Crawford and Teresa Smith are admissible to prove that Sohrab has a bias against black women and African-Americans generally, and that Defendant’s stated reason for firing Plaintiff is unworthy of credence. It also determined that there is admissible evidence that Soh-rab said “Defendant’s problem is that it is run by a bunch of black women.” Defendant specifically objects to these rulings. After a de novo review, the Court sustains these objections for the reasons stated below.

1. Patrick Crawford and Teresa Smith Declarations

The R & R considered the declarations of Patrick Crawford and Teresa Smith in determining that Plaintiff had made a sufficient showing of pretext. Defendant objects to consideration of this evidence based on Plaintiffs failure to reveal these witnesses and the subject of their testimony in the initial disclosures as required by Federal Rule of Civil Procedure 26(a). In its Notice of Objection [Doc. 67], and again in its objections to the R & R [Doc. 73 at 17], Defendant argues:

[T]he purported evidence in the declarations, and upon which Plaintiff relies, is inadmissible under Fed.R.Civ.P. 37(c)(1) because Plaintiff failed to disclose the identity of either Patrick Crawford or Teresa Smith as a witness in her initial disclosures [Doc. 18] or amended initial disclosures [Doc. 29]. Plaintiff also failed to otherwise disclose Crawford or Smith at any point during discovery.... Plaintiff also never supplemented her discovery responses to identify either Smith or Crawford as required under Fed.R.Civ.P. 26 and 33.... Consequently, the discovery period expired, and considerable effort and resources have been dedicated to the preparation of Defendant’s summary judgment motion, even though Defendant was deprived of the opportunity to take the depositions of Teresa Smith and Patrick Crawford.

[Doc. 67 at 2-3]. The R & R overruled this objection because “the witnesses Defendant seeks to exclude are crucial to Plaintiffs case” and “the failure to disclose Crawford and Smith was [not] harmful or prejudicial to Defendant because Defendant has been made aware of both of these witnesses” [R & R 24]. The Court rejects both of these rationales.

Federal Rule of Civil Procedure 26(a)(l)(A)(i) requires a party to disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” The disclosure rule is enforced through Rule 37(c)(1), which provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party 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.” Moreover, under Rule 26(e)(1)(A), supplementation of incorrect responses is required. Thus, “the obligation to disclose pertinent parties is continuing [throughout the case].” F.T.C. v. Nat’l Urological Grp., Inc., 645 F.Supp.2d 1167, 1179 (N.D.Ga.2008) (Pannell, J.). Finally, the non-disclosing party bears the burden of showing that the failure to comply with Rule 26 was substantially justified or harmless. Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir.2009) (citing Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D.Ga.2006) (Evans, J.)); see Go Med. Indus. Pty. v. Inmed Corp., 300 F.Supp.2d 1297, 1308 (N.D.Ga.2003) (Thrash, J.).

Here, Plaintiff did not disclose Crawford and Smith as persons with information which could be used to support Plaintiffs claims either in her initial disclosures or in response to Defendant’s similar interrogatories. Plaintiff made no supplemental disclosures.

Plaintiff first revealed her intention to use Crawford and Smith as witnesses and the substance of their testimony when she filed their declarations on December 17, 2012 [Doc. 54] in response to Defendant’s motion for summary judgment. The declarations were filed nearly two months after the discovery period expired on October 26, 2012 [Doc. 50].

The R & R noted that “the witnesses Defendant seeks "to exclude are crucial to Plaintiffs case” [R & R 25], The R & R cited one Eleventh Circuit case for the proposition that courts should consider “the importance of the testimony” when deciding whether to exclude witness testimony under Rule 37(c)(1) [R & R 24 (citing Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1353 (11th Cir.2004)) ]. However, the actual holding in Bearint does not support the outcome Plaintiff seeks. The plaintiffs in Bearint challenged the district court’s refusal to permit a lay witness to offer testimony at trial because he was not disclosed on plaintiffs’ pretrial witness list. Id. at 1343, 1353. But the Eleventh Circuit declined to reverse the district court’s exclusion of the witness “regardless of the importance of [the witness’s] testimony.” 389 F.3d at 1353. The Court reasoned:

The Bearints first mentioned [the witness’s] existence on the first day of trial. They allege that they had only recently learned of his existence and thus were unable to include him in their pretrial disclosures. In and of itself, this delay may have been excusable. But their subsequent delay in disclosing the full nature of [the witness’s] testimony was not [excusable].... The Bearints could easily have made this disclosure on the opening day of trial, and offer no plausible reason for their failure to do so.

Id.; see also Romero v. Drummond Co., 552 F.3d 1303, 1321 (11th Cir.2008) (finding that “the district court did [not] abuse its discretion when it refused to admit testimony from several [late-disclosed] witnesses who could have offered ‘smoking gun’ evidence ... ”).

Plaintiff did not file a response explaining how the failure to disclose Crawford or Smith was substantially justified. The R & R did not determine that Plaintiffs failure was substantially justified; it focused only on whether the failure of disclosure was harmless, and found it was harmless. The R & R found that Defendant’s counsel should have been alerted to Crawford and Smith’s status as witnesses who might support Plaintiffs claim after receiving a copy of the October 19, 2009 letter from Penn Payne to AISS (which was received along with the two Payne reports) which identified Crawford and Smith as employees who “might come forward with claims of race discrimination or race/gender discrimination” [PL Ex. N, Doc. 54-14 at 3]. The two Payne reports were sent to Plaintiffs counsel on or around July 31, 2012 [see Doc. 39]; presumably, defense counsel got them either at that time or perhaps earlier. Discovery closed on October 26, 2012 [Docs. 49, 50].

The R & R concluded that non-disclosure was harmless because the witnesses are Defendant’s former employees and “were made known to the Defendant by their counsel almost a year before the instant lawsuit was filed” [R & R 26].

The First Payne Report stated that Smith had expressed a negative view of Sohrab (“he has the capacity to explode”; “condescending”) but she did not mention race discrimination [Doc. 53-4 at 70]. Crawford expressed a very positive view, as follows:

... Patrick Crawford said that Nader is a “genius. I’m learning more in 3 weeks than in the 17 years I’ve been here. He gives me confidence; I feel appreciated; and I pick up his work ethic. I am very happy working with him.” [Doc. 53-4 at 68].

Patrick Crawford said that Nader is not at all divisive. He’s a team builder. He’s friendly, he talks and jokes but he is serious about the work. He’s so complimentary, he makes you think you’re the best employee in the world. Mr. -Crawford can’t imagine people complaining about him. Maybe it’s the managers whom he’s trying to get to work. He comes early and leaves late. His motor is running 100 miles per hour. He is always polite — that’s the way he is with everybody. [Doc. 53-4 at 72],

Patrick Crawford said that he has been in several meetings with him with a diverse group — male/female, black/ white. He is respectful of opinions of others; he asked others for their opinions; and he complimented people. [Doc. 53-4 at 73].

Patrick Crawford said: Nader “is adamant and conscientious about the work. He wants you to be successful, and he wants not to have audit findings or bad financial reports.” [Doc. 53^1 at 76]. Patrick Crawford said that Nader did not dominate the conversation. He’s very smart and asks a lot of challenging questions. This is information that helps everybody in the room. He gives people an opportunity to express themselves. [Doc. 53-4 at 78].

In the Second Payne Report, Smith again expressed a negative view of Sohrab. In addition to characterizing Sohrab as short-tempered and mean-spirited as before, this time Smith said “Deep down it’s discrimination. He works hard to mask his prejudices, but lets them bubble up sometimes. He has a low tolerance for African-American women. He thinks we’re stupid and subservient” [Doc. 54-14 at 13]. Smith gave no examples of specific incidents illustrating this discriminatory behavior.

Patrick Crawford’s comments about Sohrab in the Second Payne Report differ from his comments in the First Payne Report. Specifically, Crawford said that Sohrab “treat[ed] the African-American managers differently than white managers” and “has a different tone with each group,” although Crawford said that Soh-rab had never yelled at him or been rude to him [Doc. 54-14 at 19]. He stated that “[Sohrab] only goes to his African-American managers when he has a complaint, but he is jovial with white managers” [Id.]. He stated that Sohrab “is uncomfortable with, and does not like, black people” [Id.]. Crawford gave no examples of specific incidents to provide a basis for these perceptions.

The October 19 letter did not specifically identify Smith and Crawford as employees “who might come forward with their own claims of race discrimination.” The letter repeated the negative comments made by Smith and Crawford which were set out in the Second Payne Report. It also repeated positive comments about Sohrab made by some employees. It did say that potentially “other employees” (other than Shirley Boykin) “might come forward with claims of race discrimination or race/gender discrimination.” [PI. Ex. N, Doc. 54-14 at 3].

The material in the October 19 letter and the two Payne reports did not alert Defendant to the substance of Smith and Crawford’s testimony if they were to appear as witnesses. In fact, many of the statements in their declarations concern different subject matter from what is referenced in the letter and the Payne reports. Rule 26(a) requires not just the identity of persons with information, but also “the subjects of that information.” Fed.R.Civ.P. 26(a)(1)(A)(i). Plaintiff has not shown that her failure to provide this information to Defendant was harmless.

Finally, the Court notes that Plaintiff had almost three months before the close of discovery after her lawyers received the Payne reports and the October 19 letter to contact Smith and Crawford (who by then no longer worked for Defendant), for the purpose of determining whether they had relevant, helpful information and make the required Rule 26 disclosures to Defendant, including disclosure of the substance of this testimony. Instead, they delayed until it was too late for Defendant to take their depositions. This delay was not substantially justified.

The Court rejects the R & R’s conclusion that Plaintiffs failure to make the required disclosures was harmless, and further finds that the failure was not substantially justified. The Smith and Crawford declarations will not be considered.

2. Plaintiff’s testimony about Sohrab’s statement to Anita Fox in Miracle Carroll’s presence

The R & R cited Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir.2012) for the proposition that “even if the hearsay, they are only excluded from consideration on a motion for summary judgment if they cannot be reduced to admissible evidence at trial” [R & R 47], Thus, the R & R considered Plaintiffs testimony as to what Carroll had told her that Sohrab had said, namely, that AISS’s problem is that it is run by a bunch of black women. This ruling was error. First, the cited statement in Jones is dicta. Jones actually disallowed the witness’s testimony. Second, in Macuba v. Deboer, 193 F.3d 1316 (11th Cir.1999), the Court of Appeals clarified that for testimony to be admissible, it must comply with hearsay rules. Macuba rejected the “reduced to admissible evidence at trial” formula articulated in Eleventh Circuit cases such as Jones, 683 F.3d at 1293-94, and Pritchard v. Southern Co. Services, 92 F.3d 1130, 1135 (11th Cir.1996). This Court reads Macuba to say that when hearsay is inadmissible under the Federal Rules of Evidence, it is inadmissible and cannot be considered when ruling on a motion for summary judgment. See also Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir.2005) (“although evidence that is otherwise admissible may be accepted in an inadmissible form at summary judgment stage, hearsay could not be reduced to admissible form”) (citing Macuba). Jones can be read to rely on the idea that it is possible for hearsay which is inadmissible under the Federal Rules of Evidence to be used to oppose a motion for summary judgment. Thus, there is tension between Macuba and Jones. This is a source of confusion for many practitioners and judges, including the undersigned. Nonetheless, even if the “reduced to admissible evidence” formula of Jones is applied as the R & R suggests, there is no reason to think that Miracle Carroll would give trial testimony which differs from the statements in her own email to Colinda Howard. Also, Plaintiffs double hearsay testimony regarding this episode would not be admissible at trial. For these reasons alone, the R & R’s conclusion admitting Plaintiffs second-hand version of Sohrab’s statement is error.

The R & R also erred in citing Zaben v. Air Products & Chemicals, Inc., 129 F.3d 1453, 1456 (11th Cir.1997), as support for admitting Plaintiffs testimony about what Carroll told her that Sohrab had said. In Zaben, the Court of Appeals held that double hearsay can be admissible if “both halves” of the double hearsay are admissible. Zaben imposed numerous restrictions including, but not limited to, the requirement that both declarants be supervisors/higher-ups in the company. In this case Miracle Carroll is not a supervisor or management official. Zaben does not apply-

In summary, the Court rejects the R & R’s conclusion that Plaintiffs deposition testimony and Plaintiffs letter to Conley-Abram about what Miracle Carroll said to her about what Sohrab said to Carroll are admissible evidence. They are inadmissible hearsay.

As previously stated, Miracle Carroll’s own statement (in the form of an email to Colinda Howard) concerning what Sohrab said to her is admissible. Further, Defendant does not object to it.

Plaintiffs testimony that Nicole Conley-Abram (Deputy Chief Financial Officer) told her to have Miracle Carroll report her complaint to Colinda Howard in the Office of Internal Resolution is not an admission of a party opponent under Federal Rule of Evidence 801(