Beams v. Norton, 03-4072-JAR.

• Decision Date: 07 September 2004
• Docket Number: No. 03-4072-JAR.,03-4072-JAR.
• Citation: 335 F.Supp.2d 1135
• Parties: Richard L. BEAMS, Plaintiff, v. Gale NORTON, Secretary of Department of Interior, Defendant.
• Court: U.S. District Court — District of Kansas

335 F.Supp.2d 1135

Richard L. BEAMS, Plaintiff, v. Gale NORTON, Secretary of Department of Interior, Defendant.

No. 03-4072-JAR.

United States District Court, D. Kansas.

September 7, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard Lee Beams, Sunnyside, WA, pro se.

Jackie A. Rapstine, Office of United States Attorney, Topeka, KS, for Defendant.

CORRECTED MEMORANDUM ORDER AND OPINION GRANTING MOTION FOR SUMMARY JUDGMENT¹

ROBINSON, District Judge.

Plaintiff, who is pro se, brings this action alleging discrimination on the basis of sex, race, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and age discrimination in violation of the Age Discrimination in Employment Act. This matter comes before the Court on defendant's Motion for Summary Judgment (Doc. 29). For the reasons stated below, defendant's summary judgment motion is granted.

I. Summary Judgment Standards

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 of material fact and that the moving party is entitled to judgment as a matter of law."² The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party.³ Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."⁴

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.⁵ Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial.⁶ "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial."⁷ Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.⁸ The Court must consider the record in the light most favorable to the nonmoving party.⁹

The Court notes that summary judgment is not a "disfavored procedural shortcut"; rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."¹⁰

In a pro se case, the pro se litigant's pleadings are to be liberally construed and are held to a less stringent standard.¹¹ Nevertheless, the Court is not authorized to become the advocate for the pro se litigant.¹² "Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues."¹³ Moreover, plaintiffs are not excused from compliance with fundamental rules of procedure because they are proceeding pro se.¹⁴ Pro se litigants must follow rules of procedure, including local rules.¹⁵

District of Kansas Rule 56.1 governs motions for summary judgment in this district, and it provides that "[a]ll material facts set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the statement of the opposing party."¹⁶ Rule 56.1(b) provides as follows:

(1) 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.

(2) If the party opposing summary judgment relies on any facts not contained in the 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 requires by subsection (a), above.

The duty to admit or deny factual allegations is not too complex of a duty to require of a pro se litigant.¹⁷ Consequently, the failure of a plaintiff, pro se or otherwise, to admit or deny the veracity of facts set forth in a motion for summary judgment results in the facts being admitted.¹⁸

In this case, plaintiff has disregarded local rules, particularly the guidance provided by Rule 56.1. In response to defendant's motion for summary judgment, plaintiff has filed several documents,¹⁹ but the only document which is even arguably responsive to defendant's statement of facts is entitled "Plaintiff's Objection to Defendant's Motion to Dismiss or for Summary Judgment." Plaintiff does not state whether he admits or denies defendant's factual contentions. Instead, he responds to some of defendant's statements of fact and ignores others. To the extent plaintiff has ignored defendant's facts, the facts will be deemed admitted.²⁰

In those instances in which plaintiff does attempt to respond to defendant's statement of facts, his responses are likewise improper under local rules. Plaintiff's attempts to controvert defendant's facts, are neither concise nor do they refer with particularity to those portions of the record upon which plaintiff relies. For instance, in response to defendant's Statement of Fact No. 3, plaintiff offers a lengthy narrative in excess of two pages. The narrative contains a few references to the record interspersed throughout, but these references do not refer with particularity to the record; instead, plaintiff refers the Court to Exhibit 1, pages 202-261. The Court will not sift through nearly sixty pages of exhibits in an attempt to divine a controverted factual issue. Similar inconsistencies with the local rules permeate plaintiff's response.

To the extent the Court can discern a "disputed factual issue" from plaintiff's response, the "fact" is not relevant, nor is it responsive to defendant's statement of facts. Much of plaintiff's time is spent summarizing his view that he should not have been fired because he was right and his supervisors and the other employers at the Bureau of Indian Affairs were wrong. No discussion concerns plaintiff's status as a male or retaliation based upon his filing of EEO Complaints. Plaintiff's lawsuit is one of employment discrimination based upon sex, and retaliation, not one of wrongful termination without cause. As such, plaintiff's opinion that his supervisors' work was deficient, while his work was superb, is irrelevant to this action and wholly unresponsive to defendant's summary judgment motion.

The "evidence" offered by plaintiff to support his factual contentions is similarly deficient. In a summary judgment response, a nonmoving party need not produce evidence in a form that would be admissible at trial.²¹ It is well established, however, that a party cannot rely on unauthenticated documents to avoid summary judgment.²² Nor may a party rely upon inadmissible hearsay, or "generalized, unsubstantiated, non-personal affidavits" to successfully oppose a properly supported motion for summary judgment.²³ Here, plaintiff offers Exhibit 1 consisting of records, which are purportedly "Office of Personnel Manual Investigation" administrative records. The records are neither verified, authenticated, nor otherwise indicative of an officially sealed set of records. The parties have stipulated to the admissibility of administrative records that form the basis of plaintiff's EEO complaints, but plaintiff's Exhibit 1 has no such stipulation. Yet another example is plaintiff's response to Statement of Fact No. 5. In his response, plaintiff refers the Court to testimony of some kind, but there is neither a cover sheet to indicate the nature of the proceeding during which the testimony arose or certification by the court reporter to verify the accuracy of the transcription. As such, the "testimony" is inadmissible. Although the Court will not discuss each evidentiary deficiency, such deficiencies abound as plaintiff's responses nearly all refer to unverified, unauthenticated documents or evidence constituting hearsay.

Plaintiff also filed a document entitled "Statement of Facts." This document fails to set forth plaintiff's factual allegations in separately numbered paragraphs. More importantly, plaintiff has not referred to the record, choosing instead to present a narrative of his version of events devoid of factual support. A conclusory, self-serving narrative falls far short of the requirements of D. Kan. R. 56.1(b). Furthermore, to the extent that plaintiff attempts to respond to defendant's statement of facts by referring the Court to his "Statement of Facts," his attempts are unavailing for "[u]nsubstantiated allegations carry no probative weight in summary judgment proceedings."²⁴

The Court additionally notes that plaintiff, although proceeding pro se, is not wholly unfamiliar with summary judgment proceedings. This is the second lawsuit plaintiff has litigated in this Court. The first lawsuit, Beams v. Norton,²⁵ was resolved when defendant's motion for summary judgment was granted, and the judgment was upheld by the Tenth Circuit on appeal. In his prior lawsuit, the Court addressed plaintiff's submissions at the summary judgment stage and concluded that plaintiff's proffered facts were not facts at all, but bare allegations unsupported by Rule 56 evidence, and not responsive to defendant's factual contentions. Thus, plaintiff is aware that he must comply with D. Kan. Rule 56.1 and Fed.R.Civ.P. 56 to controvert defendant's factual contentions.

Finally, the Court observes that although plaintiff has provided no disputed issues of material fact, this...