CLOETTA BRADY, Plaintiff, v. WAL-MART STORES, INC., and WALMART, INC., Defendants Case No. 3:22-cv-05055-RK United States District Court, W.D. Missouri, Southwestern Division Filed June 05, 2024 Counsel Edward Emmett Keenan, Sonal Bhatia, Aaron J. Hadlow, James R. Montgomery, Keenan & Bhatia, LLC, Kansas City, MO, Mark Obermeyer, St. Louis, MO, for Plaintiff. LaceShionna Niccara Cline, Robert Julio Rojas, Littler Mendelson, PC-KCMO Walnut, Kansas City, MO, for Defendants. Ketchmark, Roseann A., United States District Judge ORDER *1 This case—which concerns Plaintiff Cloetta Brady's employment at Defendant Walmart's store in Neosho, Missouri, where she worked from 1987 to 2008—has a long procedural history that the Court has previously discussed.[1] (See Doc. 35.) Brady initially asserted many legal claims against Walmart, but the Court disposed of most of them when it granted in part Walmart's motion to partially dismiss. (Id.) Plaintiff's sole remaining claim is for gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, in which she alleges both disparate treatment and disparate impact as to both promotion and pay. (Id.) Now before the Court are four motions, each of which is fully briefed: (1) Brady's motion for sanctions (Docs. 114, 126, 128); (2) Walmart's motion for leave to file a sur-reply (Docs. 129, 130, 131); (3) Walmart's motion for summary judgment (Docs. 97, 98, 113, 119, 127), and (4) Walmart's motion to exclude expert witness report and testimony (Docs. 103, 104, 111, 118, 125). After careful consideration and review, the Court ORDERS as follows: (1) Brady's motion for sanctions (Doc. 114) is DENIED, and Walmart's associated motion for leave to file a sur-reply (Doc. 129) is DENIED as moot; (2) Walmart's motion for summary judgment (Doc. 97) is GRANTED; and (3) Walmart's motion to exclude expert witness report and testimony (Doc. 103) is DENIED as moot. I. Brady's Motion for Sanctions (Doc. 114) and Walmart's associated Motion for Leave to File a Sur-Reply (Doc. 129) The Court begins with Brady's motion for sanctions, as it impacts the evidentiary record underlying Walmart's pending motions that the Court resolves later in this Order. Brady's motion for sanctions arises from a declaration (Doc. 98-2) submitted by Walmart in support of its pending motions. The declaration is from Walmart's records custodian, Marty Autrey. The 136-paragraph declaration addresses documents produced in this case concerning Walmart's hiring practices, Brady's employment history, employee compensation information, and the like. Brady contends that this declaration is improper, arguing that Walmart never disclosed Autrey's identity but is now relying on his declaration to present extensive testimonial evidence about this case's core issues. For relief, Brady moves the Court to strike Autrey's declaration and award her the costs and fees associated with briefing the issue, or, in the alternative, to re-open discovery and allow her to depose Autrey. Walmart responds that no sanctions are warranted, arguing it properly disclosed early in this litigation that it would rely on a records custodian, its custodian is Autrey, and Autrey's declaration is appropriate for such a custodian, as it merely provides a road map for understanding and interpreting the documents the parties previously exchanged in discovery. *2 The parties' dispute centers on whether the substance of Autrey's declaration requires Walmart to have disclosed him by name, and so the Court must review the history of how the parties have litigated this case. The parties' briefing discusses that history in great detail and with charged language, but the Court finds the following summary sufficient to resolve the issue presented: • In September 2022, Walmart served Rule 26 initial disclosures stating a “Records Custodian” may know about “records pertaining to the allegations within Plaintiff's Complaint and Defendant's defenses thereto, as well matters relating to Plaintiff's employment with Defendant, and Defendant's relevant policies and procedures.” • In November 2022 and April 2023, Walmart produced documents, including documents indicating that Henry Wallace—who was the Walmart hiring manager for the position at issue here—conducted interviews for the position. • In early May 2023, Brady deposed Wallace, who testified that, before he filled the Support Manager position, he had to interview at least three candidates. Wallace further testified he could not remember specifically who he had interviewed. • During a May 2023 court status conference, Brady indicated the discovery issues that remained outstanding were deposing difficult-to-locate fact witnesses and obtaining Walmart's response to her closing interrogatories. (Doc. 91.) • In June 2023, Brady sought to take a Rule 30(b)(6) deposition of Walmart. Later that month during a court discovery hearing, the Court denied Brady's effort to take the deposition, ruling it was both untimely and beyond Brady's previous discussion of what discovery remaining outstanding. (Docs. 77, 92.) • In late August 2023, pursuant to the parties' ongoing discussions about interrogatories, Walmart provided responses that specifically identified the three candidates Wallace interviewed for the Support Manager position. In early September 2023, Walmart provided an interrogatory verification page that was signed by Autrey. • During a late September 2023 court discovery hearing, Brady sought permission to depose Autrey, arguing that she expected he would offer substantive testimony even though Walmart had never disclosed him. In response, Walmart stated Autrey would be acting only as a records custodian. Based on those positions, the Court declined to reopen discovery. (Doc. 109.) • In November 2023, Walmart moved for summary judgment, submitting Autrey's declaration in support. Against that backdrop, Brady moves for sanctions under the Federal Rules of Civil Procedure. Specifically, Rule 26(a) states that a party must, without awaiting a discovery request, provide to the other parties the name ... 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[.] Fed. R. Civ. P. 26(a)(1)(A)(i). If a party fails to do so, “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.” Fed. R. Civ. P. 37(c)(1). In addition, the Court may impose any other sanction that is appropriate. Rule 37(c)(1)(A)-(C). Thus, the Court must consider whether Walmart failed to disclose Autrey, and if so, whether that failure was substantially justified or harmless and whether any other sanction is appropriate. See Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702-05 (8th Cir. 2018) (discussing law and taking this analytical approach). *3 Upon review, the Court declines to impose any sanction. The Court rejects the premise of Brady's motion, which is that Autrey's declaration provides testimony beyond that of a mere records custodian. Caselaw holds that, in addition to authenticating records, a records custodian may also interpret and explain the records to help others understand them. United States v. Cooper, 375 F.3d 1041, 1045-47 (10th Cir. 2004) (affirming ruling that, at trial, a records custodian could explain what records meant and reflected); United States v. Garcia, 58 F. App'x 253, 256 (9th Cir. 2003) (“As a records custodian, [the trial witness] was authorized to testify about the contents of the file, and to explain the meaning of those contents[.]); Kahama VII, LLC v. Space Coast Builders & Contractors, Inc., No. 612CV454ORL19DAB, 2013 WL 12161440, at *14 (M.D. Fla. Jan. 28, 2013) (a custodian of records “may testify about the contents of the records and explain what the records mean”). Here, Autrey's records-custodian declaration is consistent with his work as a corporate Walmart employee familiar with the company's human resources and employee compensation practices. The declaration addresses only Walmart's company records and policies; and only documents the parties have exchanged in discovery. The declaration describes the information that appears “according to” and “as set forth in” those documents. The declaration does not extend to issues which are based upon or would require personal firsthand knowledge of or experience with Brady and her employment at the Neosho store. In short, the Court is satisfied that Autrey's declaration is limited to interpreting and explaining the documents produced in this case. As a proper records-custodian declaration, the Court also rejects Brady's argument that Walmart was required to disclose Autrey by name. Caselaw holds that a records custodian may testify even if he or she was not disclosed by name in discovery. J.P. v. BCBSM, Inc., No. CV 18-3472 (MJD/DTS), 2021 WL 131234, at *5 (D. Minn. Jan. 14, 2021) (ruling a records custodian fit into the category of “appropriate corporate designee,” and thus was properly disclosed; the custodian did not have to be disclosed by name, so the court declined to strike the custodian's declaration); Riddick v. AT&T, No. 2:12-CV-02033-KJM-AC, 2017 WL 2214933, at *6 (E.D. Cal. May 19, 2017) (rejecting the argument that a party must disclose the identity of a records custodian in discovery, and thus denying a motion to strike the custodian's declaration); see also Am. Mod. Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2018 WL 4404723, at *9 (E.D. Mo. Sept. 17, 2018) (witness who was not properly disclosed as an expert could nonetheless testify as a records custodian about the contends of records at issue). Here, Walmart's Rule 26 initial disclosures stated its records custodian may have information about the parties' allegation and defenses, Brady's employment, and Walmart's policies and procedures. Those topics accurately describe and encompass the subject matter of Autrey's declaration, and thus the Court concludes Walmart was not required to disclose him by name. Brady's contrary arguments are not persuasive in part because she relies on caselaw that did not concern a records custodian and thus is not instructive here.[2] *4 The Court also finds that, even if the disclosure of Autrey by name was late, the late disclosure is harmless. The Eighth Circuit has ruled that, if a late disclosure has no impact on the merits evidence underlying the case, then the disclosure may be harmless. See Hillesheim v. Holiday Stationstores, Inc., 903 F.3d 786, 790 (8th Cir. 2018). Here, Brady does not dispute that Autrey's declaration introduces no new documents but rather discusses only documents that were previously produced in discovery. Instead, Brady argues that harm exists with the late disclosure because the interrogatory responses Autrey verified in September 2023 provide new information concerning (1) the identity of a truck driver involved in the incident that led to Brady's termination, and (2) the identities of the three candidates Wallace interviewed for the Support Manager position. As to the former, the identity of the truck driver is not relevant because the only pending claims here allege discrimination in promotion and pay, not Brady's termination. Moreover, as to the latter and as discussed below, the record shows that Walmart's policy was to interview three candidates before filling a job opening. Even if Walmart previously did not specifically identify the three candidates who were interviewed for the Support Manager position at issue here, such information was discoverable and available notwithstanding Autrey's identity as records custodian, and Walmart disclosed a records custodian early in this case.[3] In short, Brady had a full opportunity to conduct discovery and depose witnesses; Autrey's declaration merely interprets and explains documents exchanged in discovery, as discussed above. Under these circumstances, any late disclosure of Autrey (even if a specific identification-by-name was required) is harmless. See J.P., 2021 WL 131234, at *5 (holding that “the failure to reveal the names of the records custodian” was “harmless”). For all the reasons set out above—as well as the reasons the Court previously declined to permit Brady to take a Rule 30(b)(6) deposition—the Court declines to strike Autrey's declaration or to permit Brady to depose him. Accordingly, Brady's motion for sanctions is DENIED, and Walmart's associated motion for leave to file a sur-reply is DENIED as moot. II. Walmart's Motion for Summary Judgment (Doc. 97) Having determined Autrey's declaration is properly part of the record, the Court turns to Walmart's summary judgment motion. A. Background[4] Walmart operates large retail stores, including—as relevant here—a store in Neosho, Missouri. The Neosho store was led by a Store Manager who was at the top of a hierarchy of employees. In addition to a Store Manager, a Support Manager supervised employees. A Support Manager was considered a promotion over another position as Claims Associate. In 2007, Brady was working at the Neosho Store as a Claims Associate when Walmart sought to fill an open Support Manager position. Walmart filled the Support Manager position using Career Preference, its online system for managing employee applications and hiring. When Walmart had a position to fill—like the open Support Manager position in 2007—it opened a requisition for the open position in Career Preference. Career Preference then automatically created a candidate pool for the requisitioned position's hiring manager to use in deciding who to interview. The hiring manager was required to interview at least three candidates before filling a requisitioned position. *5 Career Preference was designed so that the candidate pool for a requisition included only those who were qualified for the position. If a person met a position's minimum qualifications, then this applicant could designate that position in Career Preference as an “Interest.” When a requisition was opened for a position that the applicant had designated as an Interest, Career Preference automatically included the applicant in the requisitioned position's candidate pool. In this way, designating a position as an Interest was the functional equivalent of applying for a requisitioned position.[5] In contrast, if a person did not meet a position's qualifications, then Career Preference prevented that person from designating the position as an Interest and instead automatically designated the position as a “Goal,” meaning the person could potentially progress towards that position in the future. As an additional part of its hiring practices Walmart also used a series of aptitude tests known as “Assessments.” Passing an Assessment could be one of the qualifications necessary to designate a position as an Interest in Career Preference. To be qualified for a Support Manager position, a person had to have taken and passed the Supervisory Leadership Assessment (“SLA”), unless the person had been working as a Support Manager since Walmart implemented the SLA, in which case the person was deemed already qualified and did not need to pass the SLA. In June 2007, Walmart's Neosho store opened Requisition No. 2450995 in Career Preference to fill an open daytime Support Manager position. Two of the individuals interested in this position were Brady and Harms. Brady had worked as a Claims Associate at the Neosho store since 1990. In 2006, she decided she wanted to pursue a position in store management. Brady knew that she had to use Career Preference to apply for positions, and she attempted to designate a Support Manager position as one of her Interests in Career Preference. However, because she had not yet taken and passed the SLA (and was not grandfathered in as an existing Support Manager), Career Preference automatically redesignated the Support Manager position as a Goal for Brady. Brady did not take and pass the SLA until 2008. Mike Harms was also interested in the open daytime Support Manager position. He had worked at the Neosho store as a Support Manager since 1998. As of 2007, Harms held the position of an overnight Support Manager, but he had been moved to a daytime shift as an accommodation for a long-term medical condition. Because Harms held the position of Support Manager since 1998, he was not required to take the SLA. Using Career Preference, Harms designated the Support Manager position as an Interest. Henry Wallace, the hiring manager for Requisition No. 2450995 conducted interviews before hiring for the Support Manager position. Brady was not in the position's applicant pool, as she had not yet passed the SLA. Harms was in the applicant pool. Wallace interviewed three candidates—one of whom was Harms—and ultimately hired him for the position in July 2007. At the time the Neosho store opened Requisition No. 2450995 and when Wallace hired Harms, the Store Manager was Charles Cornelison, who is now deceased. Brady testified at her deposition that when the Support Manager position came up, she informed Cornelison that she was excited about the position and wanted to be considered for it, but that Cornelison told her he was not going to fill the position. Brady also testified that later, Cornelison told her that he gave the position to Harms because Harms “was sick and had a family to support.” Brady never heard Cornelison make any derogatory comments about her gender. Brady alleges that she was not hired for the 2007 Support Manager position due to gender discrimination. She also asserts a claim for gender discrimination in pay. B. Legal Standard *6 “Summary judgment is required if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. Ins. Co. v. Great Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018) (citations and quotation marks omitted). “Once the movant fulfills its responsibility of informing the court of the basis for its motion, identifying the portions of the record that demonstrate the absence of a genuine issue of material fact, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial.” Hess v. Union Pac. R.R. Co., 898 F.3d 852, 857 (8th Cir. 2018) (citation and quotation marks omitted). The necessary inquiry is whether “there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “As to materiality, the substantive law will identify which facts are material.” Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. “In considering a motion for summary judgment, the court does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue.” Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citation omitted). Instead, the Court views the evidence “in the light most favorable to the nonmoving party and giv[es] the nonmoving party the benefit of all reasonable inferences.” Fed. Ins. Co., 893 F.3d at 1102 (citation and quotation marks omitted). C. Discussion 1. Disparate-Treatment-in-Promotion Claim Brady alleges gender discrimination primarily by contending she suffered disparate treatment in promotion, in that Walmart selected Harms for the Support Manager position. A disparate treatment claim alleges the defendant intentionally discriminated against the plaintiff. Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 955 (8th Cir. 2001). A plaintiff can establish a disparate treatment claim by presenting either direct evidence of discrimination or evidence that raises an inference of discrimination. Lake v. Yellow Transp., Inc., 596 F.3d 871, 873 (8th Cir. 2010). Brady contends she has direct evidence of Walmart's discrimination, relying on her deposition testimony that Cornelison initially told her he wasn't going to fill the position and later told her he had given the role to Harms because Harms “was sick and had a family to support.” “Direct evidence reveals a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 924 (8th Cir. 2014). To constitute direct evidence, the allegedly discriminatory statement must have been made by the person who made the challenged employment decision; conversely, a statement by a non-decisionmaker is not direct evidence. Torgerson v. City of Rochester, 643 F.3d 1031, 1044-45 (8th Cir. 2011). A statement that is “facially and contextually neutral” as to the alleged basis of discrimination is not direct evidence. Id. at 1045. In summary, “[d]irect evidence must be strong and clearly point to an illegal motive as the basis for the adverse employment action.” Ebersole, 758 F.3d at 924. Under this law, Walmart disputes that Brady has direct evidence of discrimination. Walmart first argues that Cornelison was not a decisionmaker for the Support Manager position, relying on its records showing that the position's hiring manager was Wallace. The Court finds a genuine issue of material fact precludes summary judgment on this basis. Brady's testimony provides evidence that Cornelison—who was the Neosho's overall Store Manager—was personally involved in the decision to select Harms. This evidence, viewed in the light most favorable to Brady, raises a genuine issue about whether Cornelison was a decisionmaker. See Morrow v. Zale Corp., 816 F.3d 1025, 1027 (8th Cir. 2016) (stating that comments made by any official closely involved in the employment decision are relevant to the direct-evidence analysis). Walmart also argues that Cornelison's alleged statement does not show a specific link between discriminating against Brady based on her gender and selecting Harms for the Support Manager position. Walmart contends his statement is facially neutral as to gender, with Brady responding that it is not contextually neutral because the statement that Harms “had a family to support” is a gendered statement reflecting the view that a man should be the family breadwinner and a woman's place is in the home. Thus, the parties' dispute centers on whether this statement is contextually neutral. *7 Courts have reached differing conclusions about whether a gender-neutral statement about having a family is direct evidence of discrimination. Some courts focus on how the statement reflects gender stereotypes, thus finding it is direct evidence. See Costa v. Desert Palace, Inc., 299 F.3d 838, 861 (9th Cir. 2002), aff'd, 539 U.S. 90 (2003) (holding that a statement that a female plaintiff did not deserve overtime because she did not have a family to support was direct evidence of discrimination, because that statement could be properly interpreted as directed at the plaintiff as a woman and based on her not being a male breadwinner). See also Williams v. Wal-Mart Stores, Inc., No. 19-81021-CIV, 2019 WL 5102277, at *4-5 (S.D. Fla. Oct. 11, 2019) (holding that a female plaintiff stated a claim for discrimination by alleging that a man was paid more because he had a family to raise). Other courts have focused on how the statement merely concerns the status of having a family rather than of being a particular gender, thus finding the statement is not direct evidence. See Delong v. Best Buy Co., No. CIV.A. 104CV25TWT, 2006 WL 562195, at *9 (N.D. Ga. Mar. 7, 2006), aff'd, 211 F. App'x 856 (11th Cir. 2006) (finding a statement that a male employee was not fired because he “had a family to support” was not direct evidence, because that statement addressed only the employee's “family” status). See also Wensel v. State Farm Mut. Auto. Ins. Co., 218 F. Supp. 2d 1047, 1060-61 (N.D. Iowa 2002) (ruling statements about starting a family, pregnancy, and child-rearing were not direct evidence of pregnancy discrimination, because “[c]hild-rearing affects both mothers and fathers” and is not based on gender). The Court's independent research has not turned up a controlling case on this issue, but, after reviewing both the caselaw discussed above and the Eighth Circuit's precedent, the Court concludes that Cornelison's alleged statement does not constitute direct evidence of gender discrimination. Most significantly, the Court finds instructive Piantanida v. Wyman Center, Inc., 116 F.3d 340 (8th Cir. 1997). In that pregnancy discrimination case, the Eighth Circuit explained that caring for a child does not turn on gender: [A]n individual's choice to care for a child ... is a social role chosen by all new parents who make the decision to raise a child. While the class of new parents of course includes women who give birth to children, it also includes women who become mothers through adoption rather than childbirth and men who become fathers through either adoption or biology. An employer's discrimination against an employee who has accepted this parental role—reprehensible as this discrimination might be—is therefore not based on the gender-specific biological functions of pregnancy and child-bearing, but rather is based on a gender-neutral status potentially possessible by all employees, including men and women who will never be pregnant. Id. at 342. Applying that reasoning here, the Court concludes that “having a family” gender-neutral in context. The statement that Harms “had a family to support” is gender neutral, as it does not expressly state anything about Brady, her gender, or female workers. E.g., compare Torgerson, 643 F.3d at 1045 (holding there was no direct evidence of gender-based discrimination, because the statement that a male candidate “was a big guy and [would] make a good firefighter” did not relate to the female plaintiff or the ability of female job applicants) and Doucette v. Morrison Cnty., Minn., 763 F.3d 978, 986 (8th Cir. 2014) (same as to direct evidence of sex-plus-age discrimination, because a comment that “old people shouldn't be working in law enforcement” was gender-neutral) with Morrow v. Zale Corp., 816 F.3d 1025, 1026 (8th Cir. 2016) (finding direct evidence of gender discrimination based on statements that the plaintiff should step down because she was “a female” and “a single mom,” that it was “a man's world,” and that she needed to “man up”).[6] *8 Other considerations also support this conclusion. “Cases finding direct evidence of discrimination usually involve statements or actions more blatant than anything presented in this case.” Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1161 (8th Cir. 2016). Here, the “family” statement is similar to neutral statements the Eighth Circuit has ruled are not direct evidence of discrimination. See Twymon v. Wells Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006) (no direct evidence based on plaintiff being told “you don't know your place” and that she was not “Midwest nice”); Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir. 2003) (same about plaintiff being “too prideful” and not “humble enough”). Additionally, “neutral statements, without more, do not demonstrate animus[.]” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 974 (8th Cir. 2012). Here, Brady does not point to something “more” beyond the family statement that would indicate animus, given that Cornelison's other alleged statements about filling the Support Manager position and Harms being sick do not facially concern gender. Accordingly, the Court finds that Brady has not presented direct evidence of discrimination. See Twymon, 462 F.3d at 934 (“While we are required to make all reasonable inferences in favor of the nonmoving party in considering summary judgment, we do so without resort to speculation.”). Brady also argues her evidence raises an inference of discrimination under McDonnell-Douglas. This familiar burden-shifting framework has three steps: (1) the plaintiff must establish the prima facie case for [gender] discrimination; (2) the burden of production then shifts to the employer to show a legitimate, nondiscriminatory reason for its decision; and, if the employer produces such evidence, (3) the burden of production shifts back to the plaintiff to show the proffered reason was mere pretext for intentional discrimination. Farver v. McCarthy, 931 F.3d 808, 812 (8th Cir. 2019). As to the first step, to make a prima facie case, Brady must show she: (1) was a member of a protected group; (2) applied for the position; (3) was qualified for the position; (4) was not hired for the position; and (5) was passed over in favor of someone who was similarly situated but not in the same protected group. Id. Here, Walmart argues that Brady cannot satisfy the requirements that she applied, was qualified, and was similarly situated to Harms. The Court agrees. The uncontroverted material facts show that when Walmart filled the Support Manager position using its Career Preference system in 2007, Brady was working as a Claims Associate and thus had to have taken and passed the SLA to be qualified, but that Brady did not take the SLA until 2008, after the position was already filled. Harms, on the other hand, was currently working as a Support Manager. These facts show that Brady was not qualified for the position, was not in the position's candidate pool, and thus was not similarly situated to Harms, in that he was qualified and in the candidate pool. See McClure v. Career Sys. Dev. Corp., 447 F.3d 1133, 1135-36 (8th Cir. 2006) (no prima facie case if plaintiff did not apply for the position); Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1046-47 (8th Cir. 2005) (same, for plaintiff not qualified for the position); Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003) (same, if others are not similarly situated to plaintiff). Brady argues her failure to formally apply using Walmart's Career Preference system is not dispositive and that she will testify at trial that she did in fact apply, and also that Cornelison told her that the position would not be filled, thus dissuading her from applying. An employee may be excused from formally applying for a promotion if the employer's promotions policy is informal, subjective, vague, or secretive. Lockridge v. Bd. of Trustees of Univ. of Arkansas, 315 F.3d 1005, 1010 (8th Cir. 2003). That rule is not applicable here, as Brady acknowledged Walmart used its Career Preferences program to fill the Support Manager position, and she presents no evidence that she completed the SLA before Walmart filled the position. As such, she did not make “every reasonable attempt to convey her interest in the job to the employer,” Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1086 (8th Cir. 2011), distinguishing her situation from the cases Brady cites. *9 Brady's failure to make a prima facie case is dispositive, but in any event the Court also finds unfounded Plaintiff's arguments that pretext exists here. First, Brady argues that Wallace violated Walmart's policy by hiring Harms without conducting the required interviews, but the record does not support this argument as discussed above. Second, Brady argues that Cornelison provided “shifting statements” about how the Support Manager would be filled, but the uncontroverted evidence establishes that Walmart used Career Preference to fill the position and Brady was not qualified for it. Finally, Brady raises grievances about her qualifications relative to Harms and workplace discipline she received, but those grievances are not relevant to the issues before the Court. See Cronquist v. City of Minneapolis, 237 F.3d 920, 928 (8th Cir. 2001) (“[T]he employment-discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination.”) (cleaned up). Accordingly, the Court finds that Walmart is entitled to summary judgment on Brady's disparate-treatment-in-promotion claim. 2. Disparate-Impact-in-Promotion Claim Brady also alleges disparate impact in promotion, contending that Walmart's policy of interviewing three candidates before filling a position was selectively applied to favor men. “Under a disparate impact approach, the plaintiff does not need to prove intentional discrimination.” Evers, 241 F.3d at 953. Instead, a disparate impact claim alleges that an employer's policy or practice, even though it is facially neutral and was adopted without discriminatory intent, nevertheless has discriminatory impact on a protected group. Id. In a disparate impact case, the plaintiff must present “statistical evidence of a kind and degree sufficient to show that the practice in question caused the plaintiff to suffer adverse employment action because of his or her membership in a protected group.” Id. Here, Brady offers no statistical analysis or other evidence capable of supporting her disparate impact claim. See Bennett v. Nucor Corp., 656 F.3d 802, 817 (8th Cir. 2011) (stating the disparate-impact evidence “must be of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group”). Accordingly, the Court finds Walmart is entitled to summary judgment on Brady's disparate impact in promotion claim. 3. Discrimination in Pay Finally, Brady also alleged both disparate treatment and disparate impact regarding her pay, contending that Walmart paid Harms and other males more than her. Walmart moves for summary judgment on Brady's pay-discrimination claim, citing evidence and authority to argue that Brady's pay claims fail because she was paid more than Harms and because she testified that the managers who determined her pay did not discriminate against her, among other reasons. Brady did not respond to these arguments. Accordingly, Walmart is also entitled to summary judgment on this discrimination claim as well. See Paskert v. Kemna-ASA Auto Plaza, Inc., 950 F.3d 535, 540 (8th Cir. 2020) (granting the defendant summary judgment on one of the plaintiff's claims, because the plaintiff waived the claim by not opposing summary judgment of it). D. Walmart's Motion to Exclude Expert Witness Report and Testimony (Doc. 103) Finally, Walmart also moves to exclude Brady's expert witness, Dr. William Rogers. Given the Court's summary judgment ruling as set out above, the motion to exclude is DENIED as moot. III. Conclusion After careful consideration and review, the Court ORDERS as follows: (1) Brady's motion for sanctions (Doc. 114) is DENIED, and Walmart's associated motion for leave to file a sur-reply (Doc. 129) is DENIED as moot; (2) Walmart's motion for summary judgment (Doc. 97) is GRANTED; and (3) Walmart's motion to exclude expert witness report and testimony (Doc. 103) is DENIED as moot. *10 IT IS SO ORDERED. Footnotes [1] Plaintiff previously voluntarily dismissed some of the defendants she initially sued, leaving Wal-Mart Stores, Inc. and Walmart, Inc. as the remaining defendants. (See Doc. 38.) The Court collectively refers to these defendants as “Walmart.” [2] For instance, two cases cited by Brady concerned the identification of fact witnesses on the last day of discovery. Trekell v. Target Corp., No. 4:18-CV-00662-DGK, 2019 WL 6868963 (W.D. Mo. Dec. 16, 2019); Hallmark Indus., Inc. v. Hallmark Licensing, LLC, No. 4:18-CV-0236-DGK, 2019 WL 302514, at *3 (W.D. Mo. Jan. 23, 2019). Other cases concerned the general rule that a party must identify its expert witnesses and summarize their expected testimony. Vanderberg, 906 F.3d at 702-07; Rehkemper & Sons, Inc. v. Mid-Rivers Dev. & Constr., LLC, No. 4:21-CV-00380-SEP, 2023 WL 2682001, at *2-3 (E.D. Mo. Mar. 29, 2023); Radha Giesmann, MD, P.C. v. Am. HomePatient, Inc., No. 4:14CV1538 RLW, 2017 WL 2709734 (E.D. Mo. June 22, 2017). These cases are distinguishable, in that Autrey is a records custodian and Walmart disclosed its reliance on a records custodian early in this case. [3] Brady also argues that the identities of the three interviewees is new information to the extent Wallace testified in his deposition that he could not remember specifically who he interviewed. Based on that testimony, Brady contends that Wallace did not interview anyone (and thus violated Walmart's hiring policy), but that conclusion is a non-sequitur: that Wallace could not remember during his 2023 deposition who he had interviewed in 2007 is neither surprising nor evidence that he in fact did not interview anyone. [4] The Court notes that Brady responded to many of Walmart's summary judgment facts by relying solely on her motion to strike Autrey's declaration, as discussed above. The Court has denied that motion, so Walmart's summary judgment facts for which Brady took that approach are uncontroverted. As such and except where otherwise noted, this background contains facts taken from the parties' statements of uncontroverted material facts. The Court has omitted facts properly controverted, facts asserted that are immaterial to the resolution of the pending motion, facts asserted that are not properly supported by admissible evidence, legal conclusions, and argument presented as an assertion of fact. [5] An applicant could designate a position as an Interest even if no requisitions were currently open for the position, thus “pre-applying” for any requisitions that might later be opened. [6] Because the statement is gender-neutral, the authorities Brady cites are distinguishable in that they involve statements expressly addressing gender. See Taylor v. Runyon, 175 F.3d 861, 867 (11th Cir. 1999) (finding evidence of discrimination based on a statement that a male employee would be selected for a promotion because he had a “wife” and three children and needed the money more than the plaintiff); Thompkins v. Morris Brown College, 752 F.2d 558, 561 (11th Cir. 1985) (same, based on a statement that there was “no reason for a woman to have a second job” and that men could have second jobs because they “had families and needs that the plaintiff did not have”).