Haney v. Preston
| Decision Date | 22 December 2010 |
| Docket Number | Case No. 08-2658 JAR/GLR |
| Parties | ANITA HANEY, Plaintiff, v. STEVEN PRESTON, in his capacity as Secretary of the UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant. |
| Court | U.S. District Court — District of Kansas |
Plaintiff Anita Haney filed this lawsuit against her former employer, the United States Department of Housing and Urban Development ("HUD"), alleging she was discriminated against on the basis of her race, age, gender and disability, as well as retaliated against and subjected to retaliatory harassment and constructive discharge, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e etseq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 633a et seq., the Rehabilitation Act, 29 U.S.C. § 794a, and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. On March 31, 2010, the Court granted defendant's motion for partial dismissal.1 The Court ruled that to the extent plaintiffs claims of discrimination and retaliation focus on defendant's action involving her request for reasonable accommodation in January 2003 and her subsequent transfer to the Intake Branch in February 2003, her claims have not been exhausted and the Court iswithout jurisdiction to hear them. The Court dismissed Count I in its entirety and Count II, paragraphs 50 and 51a. The Court incorporates that Order herein and relies upon it by reference in ruling on the instant motion for summary judgment. The Court will not restate its previous findings in detail, except as necessary to explain the Court's ruling.
This matter now comes before the Court on defendant's Motion for Summary Judgment (Doc. 28) on plaintiffs remaining claims and Motion to Strike Plaintiffs Supplemental Disclosures (Doc. 36). For the reasons explained in detail below, the Court denies defendant's motion to strike. The Court grants defendant's motion for summary judgment with respect to plaintiffs claims of retaliation and constructive discharge, and denies defendant's motion with respect to plaintiffs claim of retaliatory harassment. Pursuant to Fed. R. Civ. P. 56(f), the Court further permits the parties to respond to the issue of whether, on this record, summary judgment on plaintiffs claim of hostile work environment based on her disability and/or age should be granted on the grounds that plaintiff has not shown that the alleged conduct was "severe or pervasive."
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 matter of law."2In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.3 A fact is "material" if, under the applicablesubstantive 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 incorporatedtherein."11 Rule 56(e) 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
Finally, 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."14 In responding to a motion for 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."15
Defendant moves to strike plaintiff's Supplemental Disclosures as untimely, specifically plaintiff's disclosure of "Floyd May" as a witness with regard to trial and with regard to her response to defendant's motion for summary judgment. Plaintiff has not responded, and her time for doing so has expired.16 Under D. Kan. Rule 7.4, Absent a showing of excusable neglect, a party or attorney who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum. If a responsive brief or memorandum is not filed within the Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice.
As a result of plaintiffs failure to timely respond, the Court grants defendant's motion with little further consideration. In so ruling, the Court notes that it has thoroughly reviewed her response submissions and finds no reference to "Floyd May." Both parties include references to and testimony from "Anthony May, " prompting the Court to question whether plaintiffs untimely disclosure simply identified Mr. May by the wrong name. Accordingly, defendant's motion is granted to the extent "Floyd May" and "Anthony May" are not the same witness.
Defendant argues that several documents filed in support of plaintiffs summary judgment response are not properly authenticated, or lack foundation or showing of relevancy by a witness competent to testify as to their content, and are therefore inadmissible.
Unauthenticated documents, once challenged, cannot be considered by a court in determining a summary judgment motion. In order for documents not yet part of the court record to be considered by a court in support of or in opposition to a summary judgment motion they must meet a two-prong test: (1) the document must be attached to and authenticated by an affidavit which conforms to rule 56(e); and (2) the affiant must be a competent witness through whom the document can be received into evidence.... Documentary evidence for which a proper foundation has not been laid cannot support a summary judgment motion, even if the documents in question are highly probative of acentral and essential issue in the case.17
Defendant makes a sweeping objection to twelve documents attached to plaintiff's summary judgment response as Exhibits 8, 9, 14, 15, 18, 20, 21, 25, 26, 27, 28, 29, 30 and 33. These documents include three of plaintiff's performance appraisals, 18 a leave request form from plaintiff's Employee Assistance counselor, 19 a letter from plaintiff's doctor to plaintiff's supervisor, 20 five emails/email logs, 21 a copy of 5 C.F.R. § 339.104, 22 a facsimile from plaintiff's doctor to plaintiff's supervisor, a memo from defendant's Human Resource Department attached as Exhibit G to plaintiff's deposition, 23 and plaintiff's EEO appeal record Exhibit 1.24 A party may properly authenticate a document "through a supporting affidavit or deposition excerpt from anyone with personal knowledge of the facts contained in the exhibit."25 An exhibit may also qualify as "self-authenticated" under Fed. R. Civ. P. 902. To the extent plaintiff does not submit an affidavit or other authentication for Exhibits 9, 20, 21, 25 29 or 30, the Court sustains defendant's objection, and does not consider these documents. Exhibits 8, 14, 15, 26 and 28 and 33 are part of the record underlying plaintiff's EEO complaint ("ROI"). Plaintiff offers several other unopposed exhibits that were filed as part of the ROI, as does defendant, 26 and many of the documents in the ROI were considered in the context of defendant's motion for partial dismissal. The Court denies defendant's objection with respect to these Exhibits, to the extent they are material. Finally, defendant's objection to Exhibit 18 is overruled, as the C.F.R. is self-authenticated as an official publication pursuant to Fed. R. Evid. 902(5).
Under Fed. R. Civ. P. 56, "[a]n ffidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated."27 Furthermore, a witness's testimony is only admissible if evidence supports a finding that the witness has personal knowledge of a matter.28 "Conclusory and self-serving affidavits are not sufficient."29
Plaintiff relies on her own affidavit to support various factual statements in her response brief. Defendant argues that paragraphs 57 and 58 of plaintiff's affidavit are improper, because the statements are hearsay and attempt to create a "sham" fact by contradicting earlier sworn deposition testimony. Defendant states that its objection is "fully set forth in its reply to Plaintiff's response to Defendant's SOF 101 and 111."30 The Court has reviewed those sections, which deal with objections to Exhibits other than Exhibit 5, plaintiff's affidavit. Other than a cursory mention of ...
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