The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00486-FDW-DSC
MAURICE GRIER, )
)
Plaintiff, )
)
vs. )
) ORDER
THE CHARLOTTE-MECKLENBURG )
BOARD OF EDUCATION and )
DUNCAN GRAY, )
)
Defendants. )
)
THIS MATTER is before the Court on the Motion for Reconsideration filed by Defendant
Charlotte-Mecklenburg Board of Education (“Board”), (Doc. No. 138), and Plaintiff’s Motion for
Discovery, (Doc. No. 153). These motions have been briefed by the parties, and for the reasons
that follow, both motions are DENIED.
Turning first to the Motion for Reconsideration, the Court denies the motion without
prejudice to the Board’s ability to reassert any applicable arguments during or following trial in
this matter. In so ruling, the Court notes that to the extent the decision in Doe v. Fairfax Cty. Sch.
Bd., 1 F. 4th 257 (4th Cir. 2021), does not constitute an intervening change in controlling law,
both the majority and dissenting opinions in that case provide this Court with fresh guidance as to
the Fourth Circuit’s analysis of Title IX liability, including “what establishes a school’s actual
notice in Title IX cases,” id. at 264, and the significance of objective standards and reasonableness
considerations when evaluating the adequacy of a school’s response to complaints of harassment.
1
And, as already indicated by the Court in the order to which the Board now seeks reconsideration,
the Court’s ruling at summary judgment in this case would have been different had the Court had
the benefit of the Doe decision at that time.
The Court is unconvinced that allowing Plaintiff’s Title IX claim to now proceed to a jury
under the unique circumstances of this case would constitute manifest injustice, particularly given
the procedural posture of this case whereby the Court has granted a new trial—at the Board’s
request—on the issue of damages. Based on the parties’ summary judgment materials for the Title
IX claim, the evidence submitted in the first trial, and applicable law, the Court anticipates that
some of Plaintiff’s evidence he might use to give background during the retrial on the Section 1983
damages will also overlap with the evidence to establish liability under Title IX.
Finally, the Court is well-aware of those portions of the Doe case highlighted by the Board,
including that portion of the opinion that notes, “If a school becomes aware of an unsubstantiated
allegation of sexual harassment, duly investigates it, and reasonably dismisses it for lack of
evidence, the school would not be liable since it did not act with deliberate indifference.” 1 F.4th
at 268 (emphasis added). The Court’s ruling herein is without prejudice to the Board’s ability to
make this argument in a motion following Plaintiff’s close of evidence, in a request for jury
instructions and to the jury as part of closing arguments, and—if appropriate—in post-trial motions
if the evidence presented at trial.
Next, the Court denies Plaintiff’s Motion for Discovery. The Board’s response in
opposition outlines several valid and meritorious reasons to support denial of this untimely motion.
(Doc. No. 156). The Court also agrees as to the obvious irrelevance and inadmissibility of
2
evidence of emotional distress caused by litigation. E.g., Knussman v. Maryland, 272 F.3d 625,
641-42 (4th Cir. 2001).
As to the other portions of the proposed testimony and report, the Court has applied the
multi-factor balancing test of Southern States Rack & Fixture, Inc. v. Sherwin–Williams Co., 318
F.3d 592, 595 (4th Cir. 2003),1 and exercises its discretion to find that Plaintiff’s belated disclosure
of the expert report is neither “substantially justified” nor “harmless” in the specific context of this
action. Fed. R. Civ. P. 37(c)(1). This case was tried before a jury nearly ten months ago, and at
no time during the pendency of this action—filed in August 2017—has Plaintiff sought to identify
an expert or disclose an expert report. Allowing the reopening of discovery to permit this expert
report and opinion testimony during retrial on damages would necessitate additional discovery
and significant expense for the Board in order to promptly cure the surprise disclosure at this late
stage of litigation. It would also require the parties to revisit, revise, and resubmit pretrial filings
that have already been submitted to and reviewed by the Court in preparation for the upcoming
trial. Consequently, granting the motion would absolutely disrupt the trial set to take place in a
few weeks. The Southern States factors weigh heavily in favor of excluding the proposed expert
witness and report, and Plaintiff has failed to provide substantial justification for such a tardy
disclosure.
1 In exercising its broad discretion to determine whether a nondisclosure of evidence is substantially justified or
harmless for purposes of a Rule 37(c)(1) exclusion analysis, this Court is guided by the following factors: (1) the
surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3)
the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-
disclosing party’s explanation for its failure to disclose the evidence. Southern States, 318 F.3d at 596–97.
3
To the extent the “good cause” standard to modify the discovery schedule applies, the Court
finds that for these same reasons, Plaintiff has also failed to show good cause to do so at this late
stage of litigation. See Fed. R. Civ. P. 16(b)(4).
IT IS THEREFORE ORDERED that the Board’s Motion for Reconsideration, (Doc. No.
138), and Plaintiffs Motion for Discovery, (Doc. No. 153), are DENIED.
IT IS SO ORDERED.
Signed: February 16, 2022
Frank D. Whitney □□
United States District Judge ae