Huber v. Westar Foods, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TONYA C. HUBER,
Plaintiff,
v.
WESTAR FOODS, INC.,
Defendant.
8:21CV229
MEMORANDUM
AND ORDER
This matter is before the Court on plaintiff Tonya C. Huber’s (“Huber”) Unopposed
Motion for Reconsideration (Filing No. 86) asking the Court to reconsider her Motion for
Partial Summary Judgment (Filing No. 41) and her Motion to Strike (Filing No. 55). For
the reasons that follow, Huber’s motion to strike is granted, but her motion for partial
summary judgment is denied.
I. 	BACKGROUND
The full facts of this case are laid out in the Court’s prior order (Filing No. 66). To
briefly summarize, defendant Westar Foods, Inc.’s (“Westar”) owns and operates several
Hardee’s fast-food restaurants in Nebraska, including in the town of Elkhorn. 	Huber
became the store manager of the Elkhorn location on December 3, 2018. As store manager,
she was responsible for hiring, training, and disciplining crew members, as well as ensuring
the safety and maintenance of the store. 	Before working for Westar, Huber worked in
retail-management positions for several years at Burger King, Wendy’s, and Payless Shoes.
She holds a master’s degree in business administration as well as a “certified professional
project management” certification from the University of St. Thomas in Minnesota.
Huber has diabetes, which qualifies as a disability under the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. 	On June 17, 2021, Huber
filed this lawsuit (Filing No. 1), asserting claims for disability discrimination in violation
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of the ADA and the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat.
§ 48-1101 et seq. Huber also brought interference and retaliation claims under the Family
and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., alleging Westar fired
her “[f]ollowing reasonable requests for accommodation” and “[a]fter learning of [her]
history of disability.”
The parties filed cross-motions for summary judgment on September 9, 2022.
Westar asked for “entry of summary judgment on all claims.” 	Huber sought partial
summary judgment as to Westar’s “affirmative defenses of failure to mitigate damages and
after-acquired evidence.” Huber also moved to strike two affidavits submitted by Westar
in opposition to Huber’s motion for partial summary judgment, arguing they contained
expert testimony and information that was not timely disclosed.
On January 17, 2023, the Court granted Westar’s motion for summary judgment on
all claims (Filing No. 66). 	See Huber v. Westar Foods, Inc., No. 8:21CV229, 2023 WL
202295, *7-8 (D. Neb. Jan. 17, 2023), rev’d and remanded, 106 F.4th 725 (8th Cir. 2024),
reh’g en banc granted, opinion vacated, No. 23-1087, 2024 WL 3892871 (8th Cir. Aug. 21,
2024), on reh’g en banc, 139 F.4th 615 (8th Cir. 2025), and aff’d in part, rev’d in part and
remanded, 139 F.4th 615 (8th Cir. 2025). Having done so, the Court found it unnecessary
to consider Huber’s motion for partial summary judgment and motion to strike. That is no
longer true.
After a rehearing en banc, the United States Court of Appeals for the Eighth Circuit
reversed 	this 	Court’s 	grant 	of 	summary 	judgment 	in 	part, 	remanding 	for 	further
proceedings on Huber’s FMLA interference claim and otherwise affirming. See Huber v.
Westar Foods, Inc., 139 F.4th 615, 628 (8th Cir. 2025). 	The Eighth Circuit specifically
noted that the Court could consider Huber’s motion to strike and motion for partial
summary judgment on remand. See id. at n.2.
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II. 	DISCUSSION
A. 	Motion to Strike
Westar made its initial disclosures under Federal Rule of Civil Procedure 26 on
October 8, 2021 (Filing No. 15). 	Those disclosures listed four individuals likely to have
discoverable information: Amy Rowe (“Rowe”), Cindy Kelchen (“Kelchen”), Matt
Thayer, and Huber. Westar described Rowe, its Human Resources (“HR”) consultant, as
someone who had “[k]nowledge of [Huber’s] termination and of [Westar’s] policies and
procedures.” It described Kelchen, Huber’s supervisor, as someone who had “[k]nowledge
of [Huber’s] work performance at relevant times.”
Huber’s “Interrogatory No. 8” asked Westar to identify “every principal or material
fact [Westar] relies on to support its second affirmative defense” that Huber failed to
mitigate her damages. 	On December 17, 2021, Westar responded the defense was based
on Huber’s failure to promptly “take affirmative steps to take on new employment” and
that discovery had “not yet been conducted” to determine “material facts in support.”
(Filing No. 56-4). Huber’s “Interrogatory No. 15” asked Westar to identify “any individual
[it] expect[s] to call as an expert witness.” 	Westar replied that it had not yet determined
whether 	it 	would 	call 	any 	expert 	witnesses. 	It 	is 	undisputed 	that 	Westar 	never
supplemented these disclosures.
The magistrate judge set the following discovery deadlines: (1) expert witness
disclosures and reports by May 6, 2022; (2) depositions by July 1, 2022; (3) dispositive
motions 	by 	September 	9, 	2022; 	and 	(4) 	motions 	to 	exclude 	expert 	testimony 	by
October 7, 2022 (Filing Nos. 24, 35, 37).
Huber moved for partial summary judgment on September 9, 2022 (Filing No. 41)
regarding two of Westar’s affirmative defenses: failure to mitigate damages and after-
acquired evidence. 	In support of that motion, Huber argues the “discovery process has
removed any doubt regarding whether Ms. Huber took reasonable efforts to mitigate her
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damages, and has revealed no after acquired evidence that could have formed the basis for
Ms. Huber’s termination.” (Filing No. 43).
On September 30, 2022, Westar responded (Filing No. 46) that Huber has not
mitigated her damages because she primarily applied for jobs “beyond the scope of [her]
past employment duties, background, and experience”—many of which “had requirements
beyond [her] training and experience.” Westar relied on affidavits (Filing No. 47) by both
Rowe and Kelchen. Rowe’s affidavit (Filing No. 47-2) states—for the first time—that she
is “very aware and familiar with the extreme worker shortage that has caused serious
operational issues for Westar and other restaurants” in the area. 	Rowe declares her
knowledge of severe shortages for both managers and frontline food-service workers is
based on her work with Westar and “numerous articles” and HR “trade publications.” She
claims the worker shortage “is the norm within the entire restaurant and fast food industry
in the Omaha region over these past three years” and “virtually all” restaurants in western
Iowa and eastern Nebraska have had “numerous unfilled openings[.]”
Kelchen’s affidavit (Filing No. 47-3) similarly alleges she is “very familiar and
knowledgeable with the overall labor market” in the greater-Omaha area. 	She declares
Westar in particular has experienced “severe worker shortages over the past three years[.]”
Not only is she familiar with Westar’s difficulty “finding sufficient numbers of managers
and rank-and-file employees,” but she is “also familiar with the posted job openings” of
competitors. She maintains “all fast food restaurants” in the Omaha area “had numerous
unfilled openings” from 2019 through 2022.
Huber then moved to strike these two affidavits, requesting the Court (1) disregard
the affidavits in considering Huber’s motion for partial summary judgment and (2) “enter
an Order excluding from trial any testimony from Rowe and Kelchen regarding [Huber’s]
mitigation 	efforts.” 	Huber 	argues 	Rowe’s 	and 	Kelchen’s 	“purported 	specialized
knowledge in the fast-food industry” constitutes expert testimony and that Westar failed to
timely “disclose any aspect of the opinions offered” in the affidavits “in any form” before
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filing them to oppose Huber’s motion for partial summary judgment. 	The Court, she
argues, must exclude improperly disclosed evidence unless the failure was “harmless or
substantially justified.” 	See Trost v. Trek Bicycle Corp., 162 F. 3d 1004, 1008 (8th Cir.
1998).
Westar counters that the affidavits are based on Rowe’s and Kelchen’s “first-hand
knowledge” of the industry—not expert testimony. 	In reply, Huber contends that
regardless of whether the affidavits contain expert testimony, Rowe and Kelchen were not
even properly disclosed as lay witnesses “with knowledge relevant to Westar’s mitigation
of damages affirmative defense[.]”
The Court 	agrees the 	affidavits should 	be 	stricken. 	Federal 	Rule of Civil
Procedure 26(a) requires parties to disclose the names, addresses, and telephone numbers
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[.]”
Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added). 	A party must supplement or correct its
disclosure “in a timely manner” if the initial disclosures are incomplete. 	Fed. R. Civ.
P. 26(e).
The requirements are even higher for expert witnesses. Subsection (a)(2) governs
the disclosure of witnesses that may be used to present expert testimony at trial, requiring
that a party “disclose to the other parties the identity of any witness it may use at trial to
present” expert testimony. 	Fed. R. Civ. P. 26(a)(2)(A). 	When the expert witness is
“retained or specially employed to provide expert testimony in the case,” a party must
produce a detailed expert report, “[u]nless otherwise stipulated or ordered by the court.”
Fed. R. Civ. P. 26(a)(2)(B). 	For experts that are not specifically retained for litigation,
such as treating physicians, parties must still disclose their identity and “the subject matter
on which the witness is expected to present” expert opinion testimony and “a summary of
the facts and opinions to which the witness is expected to testify.” 	Fed. R. Civ.
P. 26(a)(2)(C).
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Federal Rule of Civil Procedure 37(c) gives Rule 26(a) teeth. 	See 8B Charles A.
Wright, Arthur R. Miller et al., Federal Practice & Procedure § 2289.1 (3d ed.). Under
Rule 37(c), failing to properly identify witnesses as required by Rule 26(a)(1) precludes a
party from using the 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).
Rule 37(c)’s sanction is “self-executing” and does not require a motion. 	Vanderberg v.
Petco 	Animal 	Supplies 	Stores, 	Inc., 	906 	F.3d 	698, 	703 	(8th 	Cir. 	2018) 	(quoting
Rule 37(c)(1)’s advisory committee note to the 1993 amendment).
In deciding whether an incomplete disclosure is justified or harmless, courts
consider several factors, including “(1) the prejudice or surprise to the party against whom
the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to
which the introduction of such testimony would disrupt the trial; and (4) the moving party’s
bad faith or willfulness.” Rodrick v. Wal-Mart Stores East. L.P., 666 F.3d 1093, 1097 (8th
Cir. 2012).
Here, Westar failed to comply with the disclosure requirements under Rule 26(a)(1).
Although Westar identified Rowe and Kelchen in its initial Rule 26 disclosures, it did not
properly disclose the subjects it planned to have Rowe or Kelchen testify on. See Fed. R.
Civ. 	P. 	26(a)(1)(A)(i) 	(requiring 	disclosure 	of 	the 	“subjects” 	of 	the 	discoverable
information). 	In its disclosure, Westar only identified Rowe’s knowledge of Huber’s
“termination and of [Westar’s] policies and procedures” and Kelchen’s knowledge of
Huber’s “work performance at relevant times.” 	Westar never identified Rowe or Kelchen
as witnesses with information relevant to its mitigation-of-damages affirmative defense,
nor did it mention their knowledge about an industry-wide labor shortage. What’s more,
Westar failed 	to comply with its 	disclosure obligations under 	Rule 26(e), by not
supplementing its initial disclosures or updating its interrogatory response that it had not
determined “material facts in support” of this affirmative defense.
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The Court is not persuaded by Westar’s argument that Rowe’s and Kelchen’s
industry experience “has been the subject of discovery in this case” and is therefore
sufficient to put Huber on notice that they would testify about her efforts to mitigate
damages or an industry-wide labor shortage. Cf. Vanderberg, 906 F.3d at 702 (concluding
that producing hundreds of pages of medical records was not enough to put the challenging
party on notice that a treating physician would testify as to causation in a personal-injury
case).
Although a failure to describe a witness’s subject-matter knowledge does not
automatically require exclusion of the testimony, Westar has not shown that the failure was
substantially justified or harmless. 	See Fed. R. Civ. P. 37(c). 	Westar has not supplied a
reason for its failure to disclose or supplement, and it has not responded to Huber’s
argument that its failure was not harmless. 	Huber has already deposed both Rowe and
Kelchen without knowledge of their intended testimony. Westar has not shown that Huber
was able to question either about “their knowledge of the labor market” in the region; “the
alleged labor shortage in the fast-food industry” as a whole; or the “numerous articles” and
“trade publications” Rowe read to form her opinions. Because Westar’s failure to disclose
was not substantially justified or harmless, the Court does not need to decide whether the
affidavits qualify as expert testimony. The motion to strike the affidavits is granted. Rowe
and Kelchen are prohibited from giving opinion testimony on the labor shortage in the
region or restaurant industry generally.
B. 	Motion for Partial Summary Judgment
For purposes of Huber’s partial-summary-judgment motion, the Court views the
genuinely disputed facts in the light most favorable to Westar, the non-movant, and draws
all reasonable inferences in its favor. 	See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)). Summary judgment is proper if Huber shows that there is “no genuine dispute as
to any material fact and that [she] is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Hester v. Dept. of Treas., 137 F.4th 684, 688 (8th Cir. 2025). 	“Where
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the record taken as a whole could not lead a rational trier of fact to find for [Westar], there
is no genuine issue for trial” and summary judgment on that issue is warranted. Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Ricci v.
DeStefano, 557 U.S. 557, 586 (2009)).
Huber bears the initial responsibility of identifying parts of the record that show a
lack of a genuine dispute of material fact. 	Id. 	If she does, Westar “must respond by
submitting evidentiary materials that set out ‘specific facts showing that there is a genuine
issue for trial.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Both
parties must support their factual assertions “by citing to particular parts of materials in the
record[.]” Fed. R. Civ. P. 56(c)(1)(A).
1. 	Alleged Failure to Mitigate Damages
Even ignoring Rowe’s and Kelchen’s affidavits, there are genuine disputes of
material fact regarding Huber’s efforts to mitigate her damages. 	Employees alleging
wrongful termination “must use reasonable efforts to mitigate their damages,” Brooks v.
Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir. 1988), by “seeking and
accepting other suitable employment,” Mathieu v. Gopher News Co., 273 F.3d 769, 783
(8th Cir. 2001). “While the requirement of mitigating damages ‘is not onerous and does
not require success,’” it does require that Huber exercise “reasonable diligence.” Denesha
v. Farmers Ins. Exch., 161 F.3d 491, 502 (8th Cir. 1998) (quoting Brooks, 852 F.2d at
1065).
Under the reasonable-diligence standard, Huber must seek a job that is substantially
equivalent to the one at issue. Parrish v. Immanuel Med. Ctr., 92 F.3d 727, 735 (8th Cir.
1996). It does not require her to “go into another line of work, accept a demotion, or take
a demeaning position,” Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982), but she must
make “an honest effort to find substantially equivalent work,” Brooks, 852 F.2d at 1065.
If she can do that, Westar “bears the burden of showing that there were suitable positions
and that [Huber] failed to use reasonable care in seeking them.” Denesha, 161 F.3d at 502.
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Huber argues Westar has not supported its affirmative defense that she failed to
mitigate her damages because her job search has been “extensive” and she has “not refused
any roles that are substantially similar to the role she had with Hardee’s.” Westar counters
that Huber failed to apply to “jobs reasonably comparable to her previous employment
experience” because most of the jobs she allegedly applied for were not in the food-service
industry and had requirements far beyond Huber’s training and experience.
While Huber is not required to seek a job in the food-service industry in order to
mitigate her damages, there is a triable issue for the jury whether Huber made “an honest
effort to find substantially equivalent work.” See Brooks, 852 F.2d at 1065 (concluding that
a discharged trucker had made reasonable efforts to mitigate his damages when refusing
an employment offer from a trucking company to pursue his own business venture). 	As
Westar points out, it appears the lion’s share of the jobs Huber allegedly applied to are not
“substantially equivalent” to a general-manager position at a fast-food restaurant. 	See
Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir. 1997) (noting that a plaintiff
alleging wrongful termination has the duty to mitigate by seeking “suitable employment”
that is “substantially equivalent to the one at issue”).
Huber’s deposition (Filing No. 47-7) and records documenting her job search
(Filing No. 42-7) reveal she regularly sought jobs with duties vastly different from those
of restaurant general manager. 	For example, Huber applied to many positions for which
she lacked the basic prerequisites: a “wealth management financial planner” role requiring
a specialized certification; a “data analyst” position requiring a bachelor’s of science in
computer science; a “senior quality specialist” role at ConAgra Foods requiring a
bachelor’s of science in food, biological, or chemical science; and a “facility manager”
position requiring three years of experience supervising large buildings over 400,000
square feet—all qualifications and experience Huber did not have. Apart from the fact that
some of these jobs have the term manager in the title, they hardly seem substantially
comparable to running a Hardee’s.
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When pressed on her lack of qualifications for these positions and others, Huber
responded repeatedly that she wanted to find work that would allow her to use her master’s
degree in business administration. 	While that may be true, seeking employment that
utilizes an advanced degree is not the same as seeking a job “substantially equivalent to
the one at issue.” 	Newhouse, 110 F.3d at 641. 	Viewing the evidence in the light most
favorable to Westar, there are genuine disputes of material fact regarding whether Huber
exercised reasonable diligence in seeking comparable work. 	Huber’s motion for partial
summary judgment on Westar’s affirmative defense of failure to mitigate damages is
denied.
2. 	Alleged After-acquired Evidence
Huber has also moved for partial summary judgment on Westar’s affirmative
defense of after-acquired evidence. The after-acquired evidence doctrine applies when an
employer fires an employee for an unlawful reason, but later learns of other conduct that
“would have resulted in discharge had it come to the employer’s attention[.]” Smith v. AS
America, Inc., 829 F.3d 616, 625-26 (8th Cir. 2016). In those situations, the doctrine limits
the employee’s damages to the period of time “from the date of the unlawful discharge, to
the date the new information was discovered.” Id. (quoting McKennon v. Nashville Banner
Pub. Co., 513 U.S. 352, 362 (1995)).
To succeed at trial, Westar will bear the burden of demonstrating that it would have
fired Huber upon discovery of the evidence. See id. at 626. The wrongdoing must be “of
such severity that [Huber] in fact would have been terminated on those grounds alone if
[Westar] had known of it.” Id. (quoting McKennon, 513 U.S. at 362-63). In evaluating an
after-acquired-evidence defense, the Court “must look to [Westar’s] actual employment
practices and not merely the standards articulated in its employment manuals[.]” 	Sellers
v. Mineta, 358 F.3d 1058, 1064 (8th Cir. 2004).
Huber argues there is “no evidence” that she engaged in any conduct that would
have independently led to her termination and that her record was “exemplary.” 	But
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Westar contends that during her deposition, Huber admitted she “went in [to work] sick”
with the flu and vomiting on October 30, 2019. Moreover, Huber testified that in the days
leading up to December 20, 2019, she was suffering from loose stools that were so serious
she was “wearing diapers,” yet she still reported for work. Huber also produced medical
records during discovery that show she had been seriously ill for several days prior to
December 20, 2019. According to Westar, going to work sick with vomiting and diarrhea
violated its standards of conduct and its management policies on “reporting illness in food
workers,” which is a dischargeable offense. 	Westar claims it was not aware of the full
extent of these incidents prior to discovery.
In reply, Huber contends that this does not qualify as after-acquired evidence
because Westar was aware Huber was working while sick on October 31, 2019, and did
not fire her then.1 	However, that is not quite Westar’s contention. 	While Westar knew
Huber was sick “prior to leaving” work on October 31 due to illness, Westar’s argument is
not that it was unaware she left work due to illness, but that she arrived to work already
extremely ill. Westar asserts it was unaware that Huber was “very ill with a fever, diarrhea,
and vomiting, to the point where she was wearing diapers, yet was still coming into work
in the food service industry” in violation of its policies.
Though 	it’s 	a 	close 	call, 	whether 	Westar 	would 	have 	terminated 	Huber’s
employment for reporting to work while extremely ill is a question of fact for a jury. See
Torgerson, 643 F.3d at 1042 (explaining that on a motion for summary judgment, the Court
does not make credibility determinations or weigh the evidence as those are “jury
functions, not those of a judge”). 	Viewing the evidence in the light most favorable to
1 On October 31, 2019, Huber sent a text message to other Westar managers, “[d]oes
anyone have a manager that can release me – I am working with a high fever[.]” But when
asked about leaving her shift early due to illness during her deposition, Huber replied, “I
went in sick. I was already sick” and testified about additional symptoms.
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Westar, there is a triable issue as to whether the evidence discovered by Westar would have
led to Huber’s termination. For these reasons,
IT IS ORDERED:
1. 	Plaintiff Tonya C. Huber’s Unopposed Motion for Reconsideration (Filing
No. 86) is granted.
2. 	Huber’s Motion to Strike (Filing No. 55) is granted. 	Defendant Westar
Foods, Inc. is precluded from relying on Cindy Kelchen’s and Amy Rowe’s
opinion testimony regarding the labor shortage in the region or the restaurant
industry.
3. 	Huber’s Motion for Partial Summary Judgment (Filing No. 41) is denied.
Dated this 30th day of October 2025.
BY THE COURT:
Robert F. Rossiter, Jr.
Chief United States District Judge
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