Bausman v. Interstate Brands Corp.
| Decision Date | 30 April 1999 |
| Docket Number | No. 96-4119-SAC.,96-4119-SAC. |
| Citation | 50 F.Supp.2d 1028 |
| Parties | Cynthia M. BAUSMAN, Plaintiff, v. INTERSTATE BRANDS CORPORATION, Defendant. |
| Court | U.S. District Court — District of Kansas |
David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, KS, for plaintiff.
Steven S. Griswold, Griswold Law Firm, P.C., Kansas City, MO, James R. Holland II, Leonard Singer, Bioff, Singer & Finucane, Kansas City, MO, for defendant.
This retaliatory discharge case comes before the court on the following motions: the plaintiff Cynthia M. Bausman's ("Bausman") motion for partial summary judgment (Dk.35); the defendant Interstate Brands Corporation's ("Interstate Brands" or "IBC") motion for summary judgment (Dk.37); and the plaintiff Bausman's motion to strike (Dk.44) the affidavit of Robert Lincoln (Dk.39, Ex. 6) submitted by the defendant in support of its motion for summary judgment.
Bausman worked for Interstate Brands from June 28, 1986, until she was fired on July 5, 1994, allegedly for habitual absenteeism. Bausman suffered work-related injuries that resulted in surgery on January 14, 1993. Prior to her termination, Bausman had initiated proceedings under the Kansas Workers' Compensation Act.
MOTION TO STRIKE (Dk.44).
The plaintiff seeks to strike a statement from the affidavit of the defendant's personnel manager, Robert Lincoln. Specifically, the plaintiff contends that Lincoln's deposition testimony is contrary to the following statement appearing in his affidavit: "At the time IBC terminated Bausman's employment, IBC did not know that the absences which caused her discharge were due to her alleged work caused medical condition." (Dk.39, Ex. 6, ¶ 11). The plaintiff argues this averment is contradicted by Lincoln's deposition testimony that he knew prior to Bausman's termination (1) that Bausman was complaining she had missed work because of physical problems to the same body areas for which she was making a workers' compensation claim; (Lincoln Dep. p. 70); (2) that Bausman believed and had opined she was being penalized for absences necessitated by her work-related injuries (Lincoln Dep. pp. 71, 73). The plaintiff also contends Lincoln's averment is contradicted by evidence that he had received from Bausman's attorneys a letter claiming all of Bausman's absences from April 26 through June 13, 1994, were "part and parcel of her workers' compensation claim," (Dk.45, Ex. 2).
In response, the defendant notes that Lincoln testified in his deposition that prior to her termination he had learned Bausman was claiming her absences were necessitated by her work-related injuries but that he had not received any physician's note establishing this cause as required under IBC's practice. The defendant argues that without a proper physician's note it does not know the reason or need for an employee's absence.
A court may sanction a party who presents an affidavit in bad faith in a summary judgment proceeding. Fed. R.Civ.P. 56(g). It follows that a court has the discretion to strike sham affidavits submitted pursuant to Rule 56. Barber v. Hallmark Cards, Inc., No. 93-4087-SAC, 1994 WL 568872, (D.Kan. Sep.14, 1994), aff'd, 74 F.3d 1248 (10th Cir.) (table), cert. denied, 519 U.S. 816, 117 S.Ct. 66, 136 L.Ed.2d 27 (1996); Cook v. Babbitt, 819 F.Supp. 1, 21 (D.D.C.1993); see, e.g., Butler v. City of Prairie Village, 974 F.Supp 1386, 1391 (D.Kan.1997), aff'd in part and rev'd in part on other grounds, 172 F.3d 736 (10th Cir.1999). An affidavit in support of a summary judgment memorandum "is not automatically disregarded" because it conflicts with the affiant's prior deposition testimony. Durtsche v. American Colloid Co., 958 F.2d 1007, 1010 n. 2 (10th Cir.1992); see Independent Drug Wholesalers Group, Inc. v. Denton, 833 F.Supp. 1507, 1520 (D.Kan.1993). A conflicting affidavit can be disregarded if the court first determines that the affidavit is "simply an attempt to create a `sham fact issue.'" Durtsche v. American Colloid Co., 958 F.2d at 1010 n. 2 (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986)). Factors relevant in this determination include: "whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain." Franks, 796 F.2d at 1237 (citations omitted).
In Franks, the Tenth Circuit struck a subsequent affidavit where the witness was carefully cross-examined, had access to the relevant evidence at the time of his deposition, and his testimony was "unequivocal." Id. Likewise, in Rios v. Bigler, 67 F.3d 1543, 1552 (10th Cir.1995), the court affirmed a district court's ruling striking an affidavit where the witness repeatedly and consistently answered the question in the same manner at his deposition so that his "deposition testimony was unequivocal." Finally, in Barber v. Hallmark Cards, Inc., the Tenth Circuit affirmed the district court's order that struck the plaintiff's affidavit where the plaintiff's counsel had the opportunity to cross-examine the plaintiff at her deposition, where the affidavit and deposition testimony were irreconcilable on their face, and where the plaintiff unequivocally testified one way without any apparent confusion. 1996 WL 21274, at *2.
The court is not persuaded that this is an instance where a conflicting affidavit is being submitted to create a sham issue of fact. For the most part, Lincoln's deposition testimony is consistent with his averment at paragraph eleven. In his deposition, Lincoln generally distinguished between his knowledge of what Bausman was claiming as her reason for the absences and the company's knowledge about the absences based on the company's absenteeism policy and practice. When read in this light, Lincoln's averment does not present an irreconcilable conflict with his deposition. Having failed to demonstrate that Lincoln's affidavit is an attempt to create a sham issue of fact, the plaintiff is denied all relief on her motion to strike.
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the non-moving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]here are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).
The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The non-movant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; it requires "`present[ing] sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir. 1995).
More than a "disfavored procedural shortcut," summary judgment is an important procedure Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).
For purposes of these motions only and the issues relevant to the decision rendered here, the court considers the following material facts to be uncontroverted:
1. From June 28, 1986, to July 5, 1994, Bausman worked for IBC at its bakery in Emporia, Kansas, where it produces snack cakes and related products. Brett Drum supervised Bausman from 1993 until she was fired.
2. Bakery Workers Local Union No. 218 ("Union") represents the employees at the bakery. A labor contract between the Union and IBC governs the terms and conditions of...
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