Foster v. Alliedsignal Inc.
| Decision Date | 23 May 2000 |
| Docket Number | No. Civ.A. 97-4232-CM.,Civ.A. 97-4232-CM. |
| Citation | 98 F.Supp.2d 1261 |
| Parties | Juanita M. FOSTER, Plaintiff, v. ALLIEDSIGNAL INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, KS, for Juanita M Foster, plaintiff.
William C. Martucci, Eric W. Smith, Shook, Hardy & Bacon L.L.P., Kansas City, MO, Patrick W. McGovern, Morristown, NJ, for Allied Signal Inc, defendant.
This matter is presently before the court on defendant's motion for summary judgment (Doc. 54), plaintiff's motion for partial summary judgment (Doc. 60), and defendant's motion to strike an affidavit (Doc. 79). Plaintiff in this case claims that defendant terminated her employment in retaliation for her exercise of protected rights under the Kansas Workers Compensation Act. As set forth in more detail below, defendant's motion to strike is granted, defendant's motion for summary judgment is granted, and plaintiff's motion for partial summary judgment is denied.
Plaintiff Juanita Foster began working for defendant AlliedSignal, Inc. in 1979. On November 13, 1995, while working in the sheet metal assembly area, plaintiff sustained an injury when some parts in a tub shifted and hit her arm, causing her chair to roll out from under her. Plaintiff reported her injury to Gayle Coulson, an employee in the human resource department, who in turn called the company nurse, Robin Thompson. Ms. Thompson advised that plaintiff be given ibuprofen, directed that ice or heat be placed on the strain, and suggested that plaintiff lie down for a few minutes. After plaintiff was treated, she returned to work and finished her shift. Plaintiff's supervisor, Bob Trageser, was not in the plant at the time plaintiff sustained her injury.
On November 16, 1995, plaintiff sought treatment for her injuries from defendant's company doctor, Dr. Scott Steelman. After his examination, Dr. Steelman cleared plaintiff to continue with full duty in her current position. On November 21, 1995, plaintiff told Ms. Thompson that her back was hurting and that she wanted to go home. Ms. Thompson knew that plaintiff's back complaint was a result of her injury at work. The following day, plaintiff visited her personal physician, Dr. April Bremby, who at that time prescribed medications and physical therapy. Plaintiff continued to work the remainder of November 1995.
Plaintiff visited Dr. Bremby again on December 5, 1995. At this visit, Dr. Bremby executed a form requesting that plaintiff be placed on medical leave from December 1, 1995 through January 1, 1996. That same day, plaintiff delivered the request form to an unknown employee at the front desk. Then, on December 7, 1995, as a follow up to plaintiff's request for a medical leave of absence, Dr. Steelman examined plaintiff again. Ms. Thompson was present at the examination. Dr. Steelman concluded that plaintiff was able to continue performing her job and denied plaintiff's request for a medical leave of absence. Dr. Steelman and Ms. Thompson recall advising plaintiff that day that her request for leave was denied, but plaintiff denies she was informed at that time.
Plaintiff failed to show up for work on December 8, December 11, and December 12. Plaintiff testified in deposition that she did not call in to defendant on either of those days, but plaintiff's attorney has since come forward with an affidavit, claiming that plaintiff did call defendant on December 12. In any event, defendant had an attendance policy that provided for discharge when an employee is absent for three consecutive days with no call or when an employee is absent eight or more days within the last 180 days of employment. Plaintiff had been absent on September 11 and 29, October 5, and December 1, 5, 6, 7, 8, 11, and 12. Pursuant to defendant's attendance policies, of which plaintiff was aware, Mr. Trageser spoke to plaintiff by phone on December 13, 1995, and advised plaintiff that her employment was terminated.
On December 4, 1995, plaintiff's attorney sent to defendant via certified mail a claim by plaintiff for workers compensation benefits. An unknown employee signed for the certified mail receipt on December 7, 1995. Plaintiff now claims that her termination was in retaliation for absences which were due to a work-related injury and for filing a workers compensation claim.
As a matter of policy at defendant's workplace, injured employees, supervisors, the medical department, and human resources are required to work together when an employee needs to be off work because of a work-related injury. However, defendant's medical department typically does not inform human resources or supervisory personnel regarding the details of treatment or the medical condition of injured employees because that information is considered private. The medical department advises human resources and supervisory personal only with respect to whether an employee is cleared to come back to work or whether an employee has any work-related restrictions.
When a medical leave of absence is denied, the medical department informs the human resources department either by e-mail or voice mail that the leave has been denied. The medical department later forwards to human resources a copy of the form indicating that the leave was denied. The actual request for leave form is not forwarded to human resources, and indeed that form states that the information contained therein is confidential and available only to the medical department.
Mr. Trageser, plaintiff's supervisor, and James Williams, plaintiff's human resource manager, made the decision to fire plaintiff. Mr. Trageser was aware plaintiff had reported a work-related injury in November 1995 because he did a follow up accident investigation sometime in November. Plaintiff reported to Mr. Trageser that she had reached for a tub and it just about fell, so she reached again and it caused some kind of backache. Following the injury on November 13, 1995, plaintiff continued working through November 30, 1995, and never complained to Mr. Trageser that her back was getting worse or that Dr. Steelman was not providing adequate treatment.
Mr. Trageser became aware sometime during the week of December 4, 1995, that plaintiff was attempting to get a medical leave of absence, but Mr. Trageser was not aware that plaintiff was requesting a medical leave due to a work-related injury. On December 7, 1995, Ms. Thompson advised Mr. Trageser that plaintiff had been denied a medical leave of absence and that plaintiff was to return to work the following day. Ms. Thompson also advised Mr. Trageser that Ms. Thompson told plaintiff on December 7 that plaintiff's leave request was denied and that plaintiff had to return to work the following day. At some point prior to plaintiff's termination, Ms. Thompson also informed Mr. Williams that plaintiff's request for leave had been denied and that plaintiff had been advised that she was not authorized to be off work. At the time of plaintiff's discharge, neither Mr. Trageser nor Mr. Williams was aware that plaintiff had filed a claim for workers compensation relating to her claimed injury of November 13, 1995.
Defendant has moved to strike the affidavit of plaintiff's counsel David Algeria. Attached as Exhibit 1 to plaintiff's memorandum in opposition to defendant's summary judgment motion, plaintiff attempts to introduce into the record certain pages from an alleged telephone log of plaintiff from Southwestern Bell Telephone Company for December 1995. Plaintiff's counsel argues that the alleged log demonstrates that plaintiff called defendant on December 12, 1995, which directly contradicts plaintiff's own deposition, wherein she testified that she did not speak with anyone at AlliedSignal between December 7 and December 13, 1995. The court notes that plaintiff produced the alleged log nearly three months after the close of discovery.
Foremost, plaintiff has failed to respond to defendant's motion to strike Mr. Algeria's affidavit. When a respondent fails to file a timely response, the court will ordinarily grant an uncontested motion without further notice. See D.Kan.Rule 7.4. For this reason, and for the reasons stated below, Mr. Algeria's affidavit is hereby stricken.
Fed.R.Civ.P. 56(e) sets forth the requirements for an affidavit submitted in support of a motion for summary judgment. The rule provides in pertinent part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith....
Mr. Algeria's affidavit sets forth facts about which he has no personal knowledge and, therefore, such facts are inadmissible in evidence. Mr. Algeria states in his affidavit that the telephone log shows that "[plaintiff] called defendant at (913) 842-0406, two times on December 12, 1995." Mr. Algeria has no personal knowledge regarding whether plaintiff telephoned defendant on that day and, in fact, plaintiff herself, who does have personal knowledge, testified under oath that she did not. Mr. Algeria lacks the requisite personal knowledge and is not, therefore, competent to testify.
Mr. Algeria also attaches a purported telephone log in support of his affidavit. Mr. Algeria is not competent to testify as to the attached telephone log because he has no personal knowledge of any of the information contained therein, the document's source, or its authenticity. Affidavits of attorneys who lack personal knowledge of information related in...
To continue reading
Request your trial
-
McCauley v. Raytheon Travel Air Co.
...U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir.1998); Foster v. AlliedSignal, Inc., 98 F.Supp.2d 1261, 1267 (D.Kan.2000). To establish a prima facie case of retaliation, Mr. McCauley must demonstrate that (1) he was engaged in a prote......
-
In re Quad-Cities Const., Inc.
...requirement of Rule 56(e) cannot be used in opposition to summary judgment motion and are to be disregarded); Foster v. AlliedSignal, Inc., 98 F.Supp.2d 1261, 1265-66 (D.Kan.2000) (same, as to foundation for documents attached to attorney Thus for several reasons, the Court could refuse to ......
-
Aklagi v. Nationscredit Financial, Case No. 01-2244-JPO.
...judgment only if authenticated by a person through whom the exhibits could be admitted into evidence." Foster v. AlliedSignal, Inc., 98 F.Supp.2d 1261, 1265-66 (D.Kan.2000); see also, e.g., Patterson v. Dahlsten Truck Line, Inc., 130 F.Supp.2d 1228, 1234 (D.Kan.2000) (declining to consider ......
-
United States v. Carter
...(attorney affidavit not based on personal knowledge carries no weight and should be disregarded); Foster v. AlliedSignal, Inc., 98 F.Supp.2d 1261, 1265 (D.Kan.2000) (striking an attorney affidavit that contained hearsay statements and unauthenticated documents), cited in Musselman v. Nitchm......