Butler v. City of Prairie Village
| Decision Date | 25 August 1997 |
| Docket Number | No. 96-2045-JWL.,96-2045-JWL. |
| Citation | 974 F.Supp. 1386 |
| Court | U.S. District Court — District of Kansas |
| Parties | William Adrian BUTLER, Plaintiff, v. CITY OF PRAIRIE VILLAGE, et al, Defendants. |
G. Gordon Atcheson, Blake & Uhling, P.A., Kansas City, KS, for William Adrian Butler.
Charles E. Wetzler, David C. Wetzler, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, Mark D. Katz, David S. Baker, Sherman, Taff & Bangert, P.C., Kansas City, MO, for Prairie Village, City of Kansas, H. Monroe Taliaferro, Jr. Carol Pendleton, Chairman of Policy and Services Committee, Jerald R. Robnett.
Charles E. Wetzler, David C. Wetzler, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, David W. Hauber, Boddington & Brown, Chtd., Kansas City, KS, for Barbara J. Vernon.
This employment discrimination case comes before the court on the defendants' motions for summary judgment (Doc. # 130 and # 133) and to strike the plaintiff's affidavit (Doc. # 153). In the Pretrial Order (Doc. # 122), the plaintiff asserts that Defendant City of Prairie Village (1) harassed and terminated him in violation of Kansas common law for testifying truthfully in an arbitration and for blowing the whistle on the misuse of municipal property, (2) harassed and terminated the plaintiff for exercising his First Amendment Free Speech rights as protected under 42 U.S.C. § 1983, (3) deprived the plaintiff of his protected due process property interest in his continued employment when it terminated him in violation 42 U.S.C. § 1983, (4) denied the plaintiff reasonable accommodation and harassed and eventually terminated him in retaliation for requesting reasonable accommodation in violation of the Americans with Disabilities Act (ADA), and (5) replaced the plaintiff with and/or re-assigned the plaintiff's duties to younger individuals in violation of the Age Discrimination in Employment Act (ADEA). After the court ruled on the individual defendants' motions for judgment on the pleadings, see Butler v. City of Prairie Village, 961 F.Supp. 1470 (D.Kan.1997), the plaintiff's remaining claims against the individual defendants allege that the individual defendants (1) harassed and terminated the plaintiff for exercising his First Amendment Free Speech rights as protected under 42 U.S.C. § 1983, (2) engaged in outrageous conduct toward the plaintiff, and (3) unlawfully conspired to deprive the plaintiff of his rights protected by the U.S. Constitution, the ADA, and the ADEA. In their summary judgment motions, the defendants argue that the plaintiff has failed to produce sufficient evidence to preclude summary judgment on all of his claims.
For the reasons discussed below, the court grants the defendants' motion to strike with respect to the plaintiff's conclusory statement in paragraph 8 of his affidavit and denies it on all issues and grants the defendants' summary judgment motions.
An affidavit submitted in support of or in opposition to a summary judgment motion may not offer conclusory allegations. Nichols v. Hurley, 921 F.2d 1101, 1114 (10th Cir.1990). Fed.R.Civ.Pro. 56 demands something more specific than the bald assertion of the general truth of a particular matter; rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted. See Hadley v. County of Du Page, 715 F.2d 1238, 1243 (7th Cir.1983), cert. denied, 465 U.S. 1006, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984). An affidavit submitted in support of or in opposition to a summary judgment motion, which is contrary to the prior sworn statements of the affiant, is not admissible if the court determines that the purpose of the subsequent affidavit is to create a sham fact issue. Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986). The Franks court also instructed that the following factors were relevant in the determination of a sham fact issue: (1) whether the affiant was cross-examined during his or her earlier testimony; (2) whether the affiant had access to the pertinent evidence at the time of his or her earlier testimony or whether the affidavit was based on newly discovered evidence; and (4) whether the earlier testimony reflects confusion which the affidavit attempts to explain. Id. at 1237.
The defendants request that the court strike the portions of the plaintiff's affidavit which contain conclusory allegations or allegations that are in conflict with or impermissibly add to prior discovery responses and pleadings. Specifically, the defendants argue (1) that paragraph 6 of the plaintiff's affidavit, which discusses an alleged conversation between the plaintiff and Defendant Jerald Robnett in late March or early April of 1993 during which the plaintiff purportedly requested and was denied accommodation for his disability, should be stricken because it was not previously disclosed in his answer to Interrogatory No. 10, which asked him to identify each and every action by the defendants which he believes constitutes disability discrimination; (2) that paragraph 8 of the plaintiff's affidavit, which asserts that Defendant Barbara Vernon gave him assignments with unrealistically short completion deadlines at least two or three times a week, should be stricken because it is an improper conclusory allegation and constitutes a new allegation not found in the plaintiff's response to Interrogatory No. 10; (3) that paragraph 9 of the plaintiff's affidavit should be stricken because it constitutes a new allegation not found in the plaintiff's response to Interrogatory No. 10, his deposition, or the Pretrial Order; (4) that paragraphs 2, 3, 4, and 5 of the plaintiff's affidavit, which discuss the purported adverse arbitration testimony the plaintiff contends led, in part, to his termination in violation of his First Amendment rights and Kansas public policy, should be stricken because once the defendants raised their qualified immunity defense, the plaintiff was required to disclose the content of his arbitration testimony pursuant to a heightened pleading standard created by their raising of a qualified immunity defense; and (5) that paragraph 3 of the plaintiff's affidavit should also be stricken because it contains conclusory allegations.
In response, the plaintiff argues (1) that paragraph 6 of his affidavit is relevant only to rebut the defendants' assertion in their summary judgment papers that Defendant Robnett was unaware that the plaintiff suffered from a disability (clinical depression) making him eligible for an accommodation under the ADA; (2) that the conversation discussed in paragraph 6 of his affidavit was properly not mentioned in the plaintiff's response to Interrogatory No. 10 because Defendant Robnett's refusal occurred before the plaintiff revealed his disability and, therefore, that refusal is not actionable under the ADA; (3) that if the defendants wanted to know whether the plaintiff had told a representative of the City of Prairie Village that he suffered from a disability that required an accommodation, the defendants could have posed such an interrogatory and/or asked such a question at the plaintiff's deposition; (4) that paragraph 8 of his affidavit is proper because his response to Interrogatory No. 10 indicates that Defendant Vernon used his work assignments as a tool to discriminate against him and because the averment is based on the plaintiff's personal knowledge, not a conclusory allegation; (5) that paragraph 9 of his affidavit is proper because the defendants fail to demonstrate how averments in paragraph 9 conflict with the plaintiff's prior deposition testimony and because the Pretrial Order is not intended to contain each and every fact that may be offered at trial; and (6) that paragraphs 2, 3, 4, and 5 of his affidavit are relevant to establishing that the defendants reasonably could have inferred that the plaintiff's arbitration testimony was adverse to Defendant City of Prairie Village's interest.
With respect to paragraphs 2, 3, 4, and 5 of the plaintiff's affidavit, the court denies the defendants' motion because the plaintiff is offering the evidence for the limited purpose of establishing whether the defendants reasonably could have inferred that the plaintiff's arbitration testimony was adverse to Defendant City of Prairie Village's interests. The specific nature of the plaintiff's arbitration testimony, which is what the defendants contend should have been previously disclosed, is not really pertinent to the disposition of the plaintiff's First Amendment claim based on his arbitration testimony because it is uncontroverted that none of the defendants have personal knowledge of the plaintiff's arbitration testimony. However, as the plaintiff correctly points out, it is of some relevance what the defendants may have inferred from the circumstances presented in paragraphs 2, 3, 4, and 5 of the plaintiff's affidavit.
With respect to Paragraph 6 of the plaintiff's affidavit, the court denies the defendants' motion because the plaintiff is offering the alleged conversation for a limited purpose, which was not within the scope of Interrogatory No. 10. Moreover, if they were not satisfied with the vagueness of plaintiff's response, the defendants should have filed a motion to compel a more specific answer to Interrogatory No. 10 long ago. Furthermore, the plaintiff correctly points out that if the defendants wanted to know whether the plaintiff had informed a representative of the City of Prairie Village that he suffered from a disability that required accommodation, the defendants could have posed such an interrogatory and/or asked such a question during the plaintiff's deposition.
Paragraph 8 of the plaintiff's affidavit presents the most difficult issue. The plaintiff's...
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