Cappell v. Dep't of the Army
| Decision Date | 06 November 2014 |
| Docket Number | Case No. 2:13-CV-2303-JTM |
| Parties | DENNIS G. CAPPELL, Plaintiff, v. DEPARTMENT OF THE ARMY, SECRETARY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Plaintiff Dennis G. Cappell seeks monetary damages from his past employer, defendant Department of the Army ("defendant") for alleged race discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). This matter is before the court on defendant's Motion for Summary Judgment (Dkt. 50) and Motion to Strike Deposition Correction Sheet (Dkt. 52). For the reasons stated below, defendant's motions are granted. Because defendant's Motion to Strike has direct bearing on its Motion for Summary Judgment, the court undertakes this analysis first.
In its Motion, defendant seeks to strike plaintiff's deposition corrections on the grounds that the corrections were untimely and substantively altered plaintiff's testimony. Defendant deposed plaintiff, appearing pro se, on June 4, 2014. At the start of the deposition, plaintiff was informed that he would have an opportunity to review the transcript and make any changes orcorrections on an errata sheet. Dkt. 52-2, at 7. He was also advised that he would have only thirty days to make these changes or corrections; otherwise, the transcript would be deemed correct. Dkt. 52-2, at 7.
The preliminary transcript was sent to plaintiff on June 12, 2014. Dkt. 52-1, at 2. The cover letter attached to the transcript reminded plaintiff that he had thirty days to review, sign, and return the transcript along with any corrections. Dkt. 52-1, at 2. On July 14, 2014, two days after the initial deadline had passed without response from plaintiff, he was again advised, in writing, to return the signature page and any corrections within ten days or the transcript would be filed without his signature. Dkt. 52-3, at 2. Plaintiff still failed to respond. Given plaintiff's testimony, defendant therefore filed the pending Motion for Summary Judgment on July 24, 2014. Four days later, on July 28, 2014, defendant received plaintiff's deposition correction sheet.1
Federal Rule of Civil Procedure 30(e) provides:
If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certification prescribed by subdivision (f)(1) whether any review was requested and, if so shall append any changes made by the deponent during the period allowed.
"The Tenth Circuit construes the 30-day period for submitting changes as 'mandatory' and that deposition changes are permissible under Rule 30(e) only if the party submitting the errata sheet establishes that the submission was provided to the court reporter within the time limit." United States ex rel. Smith v. Boeing Co., 2011 U.S. Dist. LEXIS 12980, at *3 (D. Kan. Feb. 10, 2011)(citing Rios v. Bigler, 67 F.3d 1543, 1552 (10th Cir. 1995) (emphasis in original)); see also ICE Corp v. Hamilton Sundstrand Corp., 2007 U.S. Dist. LEXIS 89290, at *4-5 (D. Kan. Dec. 3, 2007) ().
It is undisputed that the changes to plaintiff's deposition occurred more than thirty days (and indeed, more than forty days) after plaintiff learned of the availability of this transcript on June 12, 2014. Plaintiff has not filed any opposition to defendant's motion. While the court acknowledges plaintiff's pro se status, both at the time his errata sheet was due and now, it is well established in this Circuit that "a plaintiff's pro se status does not relieve him from complying with this court's procedural requirements." Auld v. Value Place Prop. Mgmt., LLC, 2010 U.S. Dist. LEXIS 14907, at *47 n.79 (D. Kan. Feb. 19, 2010) (citing Barnes v. United States, 173 F. App'x 695, 697 (10th Cir. 2006) (emphasis added)). Plaintiff was warned of the consequences of his failure to submit timely corrections to his deposition transcript. He failed to heed those warnings. As such, defendant's Motion to Strike (Dkt. 52) is granted.
Similarly, defendant alleges that plaintiff failed to comply with standard summary judgment procedure and respond specifically to the facts set forth in defendant's Memorandum. Instead, defendant alleges, plaintiff "opted to create his own list of facts." Dkt. 61, at 2. Defendant therefore requests that its statements of fact not specifically controverted by plaintiff be deemed admitted in accordance with Kansas Local Rules.
The Kansas Local Rules provide as follows with regard to summary judgment procedure:
D. KAN. R. 56.1(a), (e) (emphasis added).
The only factual statements from defendant's motion specifically controverted by plaintiff are: 5, 7, 13, 18, 19, 26, 27, 30, 32, 36, 40, 41, 53, 57, 60, and 61. Defendant therefore argues that the remaining facts set forth in its Memorandum in Support of Summary Judgment should be deemed admitted for purposes of summary judgment. The court agrees. Again, plaintiff's pro se status does not relieve him from complying with the court's procedural requirements. Auld, 2010 U.S. Dist. LEXIS 14907, at *47 n.79. Therefore, those facts not specifically controverted by plaintiff are deemed admitted for purposes of summary judgment.
Plaintiff's allegations stem from his time as a dual-status employee at the Army Air Support Facility Olathe ("ASF Olathe") located in Gardner, Kansas. Plaintiff is an African-American who was hired in 2004 as a federal civilian employee. As a condition of his employment, he also maintained membership in the Army Reserves. Plaintiff generally worked as a Maintenance Administrative Technician, but, when he received military orders, would report to duty as a member of the military as a Chinook helicopter pilot in training. Plaintiff often reported to military duty at ASF Olathe. During the time in question, plaintiff's civilian hierarchy was as follows: (1) immediate supervisor Russell Reese ("Reese"), (2) senior civilian/second-level supervisor rater Ronald Erkie ("Erkie"), and (3) third-level supervisor Aviation Support Facility Supervisor Michael Walsh ("Walsh").
As a Maintenance Administrative Technician, plaintiff's primary civilian responsibility was collecting timesheets and inputting payroll for all ASF Olathe employees. Because his military orders sometimes took him away from these duties for months at a time, other civilian employees were tasked with inputting payroll in plaintiff's absence, ensuring that all ASF Olathe employees continued to get paid in a timely manner. Plaintiff was responsible for verifying that all payroll matters and materials were correct and in order upon his return from his military duties.
For much of 2009, plaintiff was on military orders and attending flight school. In his absence, a Caucasian civilian employee, Leonard Rickard ("Rickard"), assumed responsibility for inputting payroll for ASF Olathe. On his 2009 annual evaluation, plaintiff was cited for numerous payroll discrepancies that were discovered by an audit. Plaintiff discussed these errors with his immediate supervisor, Reese, and questioned why they were included on his evaluation when the errors had been made by Rickard while plaintiff was on military orders. In response, Reese allegedly told plaintiff that it did not matter if he personally made the mistakes; he had to be the "fall guy." According to plaintiff, he was forced to take the blame for Rickard's mistakes solely because of his race. Defendant disputes this allegation, claiming that plaintiff was told that "owing to the nature of his job duties, he [was] ultimately the person responsible forcorrecting pay errors, regardless of who initially made them." Dkt. 51-6, at 3. As such, plaintiff was the "fall guy."
On April 15, 2010, plaintiff received an interim evaluation which documented four payroll issues and/or errors. Plaintiff disputed that any of the payroll errors could be attributable to him as he had, once again, been on military orders at the time the errors were made. Plaintiff's second-level supervisor, Erkie, looked into the errors and ultimately reduced the number of documented issues from four to two and asked plaintiff to sign the evaluation, acknowledging his receipt. Plaintiff refused. As a result, Erkie included the following comments in the evaluation:
Mr. Cappell was briefed on his midterm review on 15 April 2010 at that time he was asked to acknowledge the face to face review. Mr. Cappell said he would do so. On follow up the next day it was found that he in fact did not acknowledge the review and was now refusing to do so because he did not agree with the...
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