Cubie v. Bryan Career College, Inc.
| Decision Date | 28 January 2003 |
| Docket Number | No. 01-4120-JAR.,01-4120-JAR. |
| Citation | 244 F.Supp.2d 1191 |
| Parties | Nicola A. CUBIE, Plaintiff, v. BRYAN CAREER COLLEGE, INC., and David Bryan, Defendants. |
| Court | U.S. District Court — District of Kansas |
Rebekah A. Phelps-Davis, Phelps-Chartered, Topeka, KS, for Plaintiff.
James S. Pigg, David R. Cooper, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendants.
This matter is before the Court on defendants' Motion for Summary Judgment (Doc. 19) and Motion to Strike Affidavit (Doc. 36). Plaintiff filed a response (Doc. 31) in opposition to defendants' Motion for Summary Judgment, and defendants filed a reply (Doc. 35). Plaintiff filed a response (Doc. 37) to defendants' Motion to Strike Affidavit and defendants filed a reply (Doc. 38). After consideration of the parties' pleadings, the Court is prepared to rule. For the following reasons, defendants' motions are granted.
The Court considers the following facts undisputed and views them in the light most favorable to the plaintiff, Nicola Cubie ("Cubie"). Immaterial facts, or those not supported by the record, have been omitted. Cubie is a 27-year old married female with two children. Cubie attended courses, off and on, at Bryan Career College ("BCC") from March 16,1999 through August 26, 1999. Clifford Funk ("Funk") attended BCC at the same time as Cubie. Funk was in Cubie's first class, Math, and Q Basic, but was not a student in her other classes. Cubie alleges that Funk touched her on the shoulder/back area on three occasions and once on the mid-thigh area. These touchings occurred during the first five weeks of Cubie's enrollment at BCC, during Math class, and lasted a matter of a few seconds each time.
Cubie also alleges that Funk asked her eight to ten times to go out behind the building to smoke with him. Cubie often smoked in front of the building, which was not a designated smoking area. Funk also followed Cubie outside the building for smoking breaks several times. Funk offered on three or four occasions to come to Cubie's home to work on her computer. Funk asked Cubie's neighbor whether anyone had been to her house to fix her computer. He also asked other class members if they had worked on her computer. Funk asked Cubie once to go to The Dugout, a tavern adjacent to BCC, to have a beer with him, by themselves. Cubie declined. Funk asked Cubie to go to The Dugout other times, but his invitation was extended to a group, not just Cubie, individually.
On August 24, 2001, Cubie filed this action under Title IX of the Education Amendments of 1972 1 action, alleging sexual harassment by a fellow student, failure of BCC to take appropriate action when confronted with allegations of harassment and retaliation by BCC against Cubie for reporting the alleged harassment to them. Cubie earlier filed an action in Shawnee County District Court, on January 24, 2000 alleging sexual harassment, based on the same incidents at issue in this action, in violation of the Kansas Act Against Discrimination (KAAD)2 and 42 U.S.C. § 1983. Defendant David Bryan was dismissed from the state court action by agreement of he and Cubie and based on his stipulation that his alleged actions were done within the scope of his employment. Because Cubie had failed to exhaust administrative remedies, Judge Terry Bullock granted BCC's motion for summary judgment and dismissed the state court action.
Defendants have moved for summary judgment in this matter. Defendants have also moved to strike Cubie's affidavit, submitted in response to defendants' motion for summary judgment, alleging it is an attempt to create sham issues of fact. Each motion will be dealt with in turn.
In determining if an affidavit is merely a "sham" to create issues of fact, the Tenth Circuit has held that:
whether a material issue of fact exists, an affidavit may not be disregarded because it conflicts with the affiant's prior sworn statements. In assessing a conflict under these circumstances, however, courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue.3
The court considers several factors when making this determination, including: 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.4
In conjunction with this test, the court can consider that a plaintiff responding to a summary judgment motion cannot rest on mere allegations, but must assert specific facts, by affidavit or otherwise. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.5
In opposition to defendants' Motion for Summary Judgment, Cubie filed a resuponse that included her sworn affidavit, sixteen pages detailing what she alleges are the facts supporting her claims. Some 18 months before creating this affidavit, Cubie was deposed during the state court action about the events underlying her state court complaint. Defendants' counsel examined her; and Cubie's counsel cross-examined her in the deposition.6
Defendants move to strike Cubie's affidavit, as an attempt to create sham issues of fact, with numerous factual assertions that she did not testify to in her earlier deposition. Defendants argue that Cubie's affidavit should be stricken as an untimely amendment to her earlier deposition testimony. The affidavit was given some 18 months after the deposition testimony; and K.S.A. § 60-230(e), allows a deponent only 30 days to correct or amend her deposition testimony, once receiving notice that the deposition transcript is available.7 But Cubie does not submit the affidavit as a correction or amendment of her earlier deposition testimony. Rather, she submits the affidavit in accordance with Fed. R.Civ.P. 56(e) to support her statements of controverted facts in opposition to summary judgment.8
Nothing suggests that Cubie was unable to testify to these facts during her deposition. Nothing in her affidavit is newly discovered evidence; all of the newly described incidents occurred before the time of the deposition, and were incidents that were perceived by Cubie, as the victim of the alleged harassment. Nothing suggests that any of the newly described incidents were not within Cubie's knowledge and memory at the time of her deposition.9 Moreover, the deposition questions were crafted to elicit facts that would have been relevant in both her state and federal claims.
Cubie acknowledges that her affidavit asserts facts that she did not testify to. She denies that the affidavit contradicts her earlier deposition testimony. Rather, she considers the affidavit a supplement and clarification of her deposition testimony, explaining that her state action was based on different legal theories than her claims in this action; and that no one examined her about these factual matters during the deposition. Cubie states that the deposition questions were so narrowly tailored, that she could not testify to the full scope of Funk's harassment of her.
Cubie's position is very similar to the plaintiff in Lantec, Inc. v. Novell10 whose
Stat. Ann. § 60-230(e) (1994). This rule is analogous to Fed.R.Civ.P. 30(e) affidavit included facts about a private conversation he did not disclose during his deposition. During his deposition, that plaintiff was asked whether defendant was receptive to a discussion about a certain matter.11 After plaintiff testified that "it was discussed," 12 counsel asked questions seeking further clarification from plaintiff. While testifying about a discussion they had during a meeting, plaintiff never disclosed that the matter was further discussed during a separate, private conversation. The Tenth Circuit rejected plaintiffs explanation that the deposition questions were too narrow to elicit his testimony about the private conversation, finding that nothing in the line of questioning should have indicated to plaintiff that he was to limit his answers to only the discussion at the actual meeting.13
This Court has carefully scrutinized the affidavit and the deposition transcript, and finds Cubie's arguments entirely frivolous. As detailed below, Cubie was examined about the facts she now newly asserts in her affidavit, in repeated questions propounded by defendants' counsel, and even in a question propounded by Cubie's counsel during his brief cross-examination of Cubie. While the questions on direct examination were narrow, they were framed broadly enough to seek Cubie's testimony about all instances of alleged harassment by Funk. Cubie had repeated opportunities during her deposition to testify about incidents in which Funk harassed her, both during their math class, and at later times during her time at BCC.
As revealed in the following excerpts of the deposition transcript, juxtaposed with averments in Cubie's affidavit, Cubie had no reasonable basis to think she was being deposed only about some of the alleged incidents of harassment.
Deposition:
Q. And what was the nature of your acquaintance with him [Funk] in the class?
A. The first night I was ten minutes late and the only seat left was next to Cliff, so that's where I obviously sat.
Q. Did he [sic] continue to sit next to him the rest of the time in that class?
A. No.
Q. Did you ever sit next to him again in that class?
A. Yes.
Q. So it was just sporadically you would be next to him?
A. A few more times.
Q. About how many times total?
A. Four.14
Q. Now, you said something to the effect that he would...
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