Daniels v. United Parcel Serv., Inc.

• Decision Date: 24 June 2011
• Docket Number: Case No. 09–2304–JAR.
• Citation: 797 F.Supp.2d 1163
• Parties: Regina DANIELS, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
• Court: U.S. District Court — District of Kansas

797 F.Supp.2d 1163

Regina DANIELS, Plaintiff,
v.
UNITED PARCEL SERVICE, INC., Defendant.

Case No. 09–2304–JAR.

United States District Court, D. Kansas.

June 24, 2011.

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Dennis E. Egan, The Popham Law Firm, P.C., Kansas City, MO, Fredrick D. Deay, II, Overland Park, KS, for Plaintiff.

Jennifer L. Arendes, Narcisa P. Symank, Armstrong Teasdale LLP, St. Louis, MO, Laurence R. Tucker, Armstrong Teasdale LLP, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER JULIE A. ROBINSON, District Judge.

Plaintiff filed this action alleging claims of discrimination and retaliation on the basis of sex and age under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), the Kansas Act Against Discrimination (“KAAD”), and the Kansas Age Discrimination in Employment Act (“KADEA”). Plaintiff also alleges a violation of the Equal Pay Act and common law claims for breach of contract, or in the alternative, promissory estoppel, under Kansas law. This matter is before the Court on defendant United Parcel Service, Inc.'s (“UPS”) Motion for Summary Judgment (Doc. 90). The Court also considers UPS' motions to strike the following evidence submitted by plaintiff in response to summary judgment: the deposition testimony of Mark Samborski (Doc. 112), the deposition testimony of William J. Sifuentes (Doc. 113), the declaration of Kathleen Carpenter (Doc. 123) and the deposition testimony of Catherine Bleish (Doc. 124). The motions are fully briefed and the Court is prepared to rule. As described more fully below, defendant's motion for summary judgment is granted. Defendant's motions to strike are granted in part and denied in part.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a

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matter of law.” ¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.” ³ A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” ⁴ An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” ⁵

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁶ In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.⁷

Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” ⁸ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁹ Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” ¹⁰ To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” ¹¹ Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.¹² The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.¹³ In responding to a motion for

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summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” ¹⁴ When examining the underlying facts of the case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.¹⁵

Summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” ¹⁶ The Court takes this opportunity to comment that this general rule does not appear to hold much weight in this case. Despite estimating that trial would take five to seven days, the briefing in this case ballooned in size as it progressed, culminating in over 200 pages for the reply memorandum and related motions to strike. Most of the voluminous briefing involves the lengthy responses to factual statements presented by the parties. Defendant presented 107 statements of fact; plaintiff presented 108. While the factual statements themselves are generally reasonable in number and length, the statements in opposition by both parties are not. Upon review, the Court finds that both parties are guilty of using the “point-counterpoint” method to argue their cases, rather than to concisely discuss and directly controvert the record evidence.¹⁷ The statements made in opposition to statements of fact are unwieldy, argumentative, and often not relevant. And a fair amount of the additional facts presented by plaintiff overlap with the factual averments presented by defendant—at times, they appear to differ in semantics alone.

To be sure, presenting this volume of lengthy, immaterial, repetitive, argumentative and duplicative facts for the Court to unravel does not allow for a “speedy and inexpensive” determination of this action. To the contrary, it creates a laborious task for the Court that is anything but speedy and surely is not inexpensive for the parties. Nonetheless, the Court has endeavored to sort through the parties' unnecessarily difficult presentation of the facts and disregards those statements that either do not comport with the record evidence, are argumentative, are immaterial, or that require the Court to weigh evidence and make credibility determinations.

II. Motions to Strike and Evidentiary ObjectionsA. Separately-filed Motions to Strike

Defendant moves to strike four exhibits attached to plaintiff's response, which all entail testimony by other UPS employees that they have suffered or witnessed discriminatory treatment by UPS. The amendments to Fed.R.Civ.P. 56(c), effective December 1, 2010, provide the appropriate summary judgment procedures for setting forth the parties' factual positions. This includes the provision that “a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” ¹⁸ The advisory committee notes

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on this amendment explain:

The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment state does not forfeit the right to challenge admissibility at trial.¹⁹

Yet, defendant filed four separate motions to strike along with its reply memorandum, resulting in over 100 pages of additional briefing on the admissibility of these four exhibits.²⁰ The Court takes this opportunity to stress that such expansive briefing is unnecessary—the motions to strike are duplicative of each other and duplicative of the arguments made in the reply itself—and overly argumentative. It suffices that the party objecting to summary judgment material simply state the objection with a brief description (akin to a speaking objection) and a citation to the Federal Rule or case upon which the objection is based, in response to the factual averment itself. The response to such an objection should be equally brief. Nonetheless, the Court proceeds to briefly discuss defendant's motions to strike before determining the uncontroverted facts in this matter.²¹

First, defendant argues that the objected-to material does not support the facts to which they are offered to support. To the extent this is true, the Court reminds defendant that in order for a fact to be deemed controverted, the Court must first find that there is evidence in the record that supports the party's response that a fact asserted is controverted. Likewise, it would be contrary to this Court's obligation in deciding summary judgment to simply accept a party's assertion that a fact is uncontroverted without verifying that the evidence supports that fact. The Court need not strike evidence on this basis, it simply declines to accept the parties' characterization of a fact if the evidence does not support the factual averment. The Court agrees, for example, that the statement of fact that “UPS engages in a pattern of discriminatory treatment” is not an appropriate factual averment given the cited-to evidence. Instead, those statements by other UPS employees only go to establish their own treatment. The fact that other UPS employees may have suffered discriminatory treatment may support an argument that UPS has such a pattern of behavior, but it does not establish this as a statement of fact. Such an argument should be made in the argument section of the brief.

Defendant further argues that certain portions of these employees' statements

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should be stricken for lack of personal knowledge, or because they are based on conclusory statements and conjecture. Fed.R.Civ.P. 56(c)(4) requires that affidavits be made on personal knowledge and “set out facts that would be admissible in evidence....” Fed.R.Evid. 602 requires that a testifying witness “ha[ve] personal knowledge of the...