Amro v. Boeing Co.
| Decision Date | 07 January 1997 |
| Docket Number | Civil Action No. 96-2147-KHV. |
| Parties | Joseph P. AMRO, Plaintiff, v. The BOEING COMPANY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Dennis E. Egan, Bobbie R. Bailey, Popham Law Firm, Kansas City, MO, for plaintiff.
J. Steven Massoni, Mikel L. Stout, Gaye B. Tibbets, Foulston & Siefkin, Wichita, KS, for defendant.
Plaintiff Joseph P. Amro, a senior engineer currently employed by The Boeing Company, brings suit for national origin discrimination in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq., disability discrimination in violation of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12117, and retaliation in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq.1 The matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. # 58) filed November 8, 1996. For the following reasons, the Court finds that said motion should be and hereby is sustained.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. at 2512.
The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
"[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment maybe granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. at 2511-12. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988). Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D.Kan.Rule 56.1. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson at 251-52, 106 S.Ct. at 2512. Ever mindful of these summary judgment standards, we now turn to the merits of defendant's motion.
From a judicial point of view, the difficult issues in this case are factual rather than legal. The task of understanding the facts has been daunting, and the Court's already laborious job has been considerably complicated by the manner in which plaintiff has presented its opposition to defendant's motion. D.Kan.Rule 56.1 provides in relevant part as follows:
The memorandum or brief in support of a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the movant contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies.
A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party. The statements required by this subsection shall be in addition to the material otherwise required by these rules and the Federal Rules of Civil Procedure. (emphasis supplied)
In the Revised Scheduling Order (Doc. # 42) filed October 21, 1996, the Court also made the following specific order with respect to the format of summary judgment briefs:
Counsel shall consult D.Kan.Rule 56.1 concerning the format of summary judgment motions and supporting memoranda. If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party shall set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by D.Kan.Rule 56.1. The moving party's reply brief (if any) shall respond to the non-moving party's statement of undisputed material facts in the manner prescribed in D.Kan.Rule 56.1. If the moving party does not so respond, the non-moving party's statement of undisputed facts shall be deemed admitted in the manner prescribed by D.Kan.Rule 56.1.
In responding to movant's statement of undisputed facts, the party opposing a motion for summary judgment shall first state the movant's numbered paragraph then the party's response to that numbered paragraph, to facilitate comparison. If the party opposing summary judgment sets forth an additional statement of undisputed facts, the moving party's reply brief shall follow the same format. (emphasis supplied)
* * * * * * The requirements of Rule 56, Fed. R.Civ.P., D.Kan.Rule 56.1 and this Order shall be strictly enforced.
The scheduling order also notified counsel of the following requirements with respect to the format of summary judgment briefs:
The separately numbered factual paragraphs in dispositive motions and opposing memoranda shall be construed as requests for admissions under Rule 36, Fed.R.Civ.P. Matters shall be deemed admitted if not controverted within the time established for the filing of opposing and reply memoranda. If the responding party cannot truthfully admit or deny the matter, the response shall specifically set forth in detail the reasons why. All responses shall fairly meet the substance of the matter asserted. (emphasis supplied)
It would scarcely be an overstatement to say that plaintiff has violated every rule in the book with respect to his brief in opposition to defendant's summary judgment motion. Plaintiff does not consistently refer with particularity to those portions of the record upon which he relies. When he relies on facts not contained in movant's memorandum, he does not set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by D.Kan.Rule 56.1. In responding to Boeing's statement of undisputed facts, he does not first state the movant's numbered paragraph, then his response, to facilitate comparison. Of even greater concern, plaintiff does not specifically set forth in detail the reasons why he cannot truthfully admit or deny particular matters, and he does not fairly meet the substance of the matters asserted.2 These deficiencies are not merely technical in nature because they have so vastly compounded the Court's ability to separate the facts from the smoke and mirrors in this case. To make things worse, plaintiff's brief abounds with missing exhibits, missing deposition testimony, missing cites to the record, incorrect cites to the record, hundreds of pages of documents that are never cited and have no apparent function in the record, lack of pinpoint cites to multi-page exhibits, and typographical errors.
In all of these respects, except as otherwise noted below, plaintiff has failed to specifically controvert Boeing's statement of undisputed facts in a manner sufficient under D.Kan.Rule 56.1 to raise genuine issues of material fact. In finding that the following facts are undisputed, the Court disregards all facts not set forth in compliance with D.Kan. Rule 56.1.
The undisputed facts are as follows:
Plaintiff Joseph P. Amro, a male of Lebanese national origin, is a naturalized United States citizen who was born in Lebanon. He obtained a B.S. degree in mechanical engineering from Wichita State University (WSU) in May, 1984, and on October 15, 1984, he applied for an engineering position with Boeing in Wichita, Kansas. At the time, plaintiff was not a United States citizen. Plaintiff sought employment as an analyst in tool engineering, a tool designer or a planner, and Boeing hired him in December, 1984, as a "Planner 4-NC Programming" at a starting salary of $20,800.00 per year.
Plaintiff had begun work on a Masters' degree in mechanical engineering before Boeing hired him and he continued his...
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