Peterson v. Garmin Int'l, Inc.

• Citation: 833 F.Supp.2d 1299,43 NDLR P 134
• Decision Date: 22 June 2011
• Docket Number: Case No. 09–2659–JAR.
• Parties: Kim PETERSON, Plaintiff, v. GARMIN INTERNATIONAL, INC., Defendant.
• Court: U.S. District Court — District of Kansas

833 F.Supp.2d 1299

43 NDLR P 134

Kim PETERSON, Plaintiff,

v.GARMIN INTERNATIONAL, INC., Defendant.

Case No. 09–2659–JAR.

United States District Court,

D. Kansas.

June 22, 2011.

Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Danielle Davey, Sloan Law Firm, Topeka, KS, for Plaintiff.

Kerri S. Reisdorff, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This case comes before the Court on Defendant's Motion for Summary Judgment (Doc. 41) on plaintiff's Complaint, alleging violations of the Family Medical Leave Act ¹ (“FMLA”), and the Americans with Disabilities Act ² (“ADA”). Plaintiff previously voluntarily dismissed her claim under the Age Discrimination in Employment Act.³ Plaintiff has responded and moves for leave to file a surreply (Doc. 50). Because there are material issues of fact surrounding defendant's termination of plaintiff days before the commencement of her previously approved FMLA leave, the Court denies summary judgment on the FMLA claims of interference and retaliation. However, because there is no material issue of fact supporting a determination that plaintiff was disabled within the meaning of the ADA, the Court grants summary judgment on the ADA claim.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.” ⁴ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.⁵ “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.” ⁶ A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” ⁷ 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.” ⁸

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁹ 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.¹⁰

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.” ¹¹ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.¹² 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.” ¹³

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 When examining the underlying facts of the case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.¹⁶

II. Evidentiary Issues

There are clear and firm rules and requirements for what testimony and documents are properly before the Court for consideration.¹⁷ Defendant challenges many of plaintiff's assertions of controverted facts, as well as plaintiff's additional statements of fact on the basis that they rely upon inadmissible hearsay or unauthenticated documents, rely upon matters that are not within plaintiff's personal knowledge, or rely upon plaintiff's affidavit that alleges new or inconsistent facts in a manner rendering the affidavit a sham.

At the outset, the Court notes that its determination of what constitutes the factual record in this case has been a laborious and difficult process, largely because plaintiff has failed to abide by Fed.R.Civ.P. 56, and the local rule governing summary judgments, D. Kan. Rule 56. Plaintiff fails to support many of her statements of fact with reference to exhibit numbers in the summary judgment record. Instead, plaintiff references documents by their deposition number, without even identifying to whose deposition such exhibit was attached, and without using the exhibit numbering sequence plaintiff employed in its filings in this case.¹⁸ It is not the Court's obligation or responsibility to cull through the record, looking for documents that are cryptically and inaccurately referenced to in a party's submission. It is the parties' obligation and responsibility to cite to the record specifically and with particularity. Rule 56(c) mandates procedures for supporting factual assertions or supporting an assertion that a fact is genuinely disputed:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.¹⁹

And this Court's Local Rule 56.1(b)(1) requires that one opposing a motion for summary judgment identify in numbered paragraphs each fact in dispute, referring “with particularity those portions of the record upon which the opposing party relies.” ²⁰ Although some of the documents plaintiff inaccurately references are otherwise in the record through the defendant's submissions, this Court declines to spend umpteenth hours culling through the record to see if certain deposition exhibits referenced by plaintiff are even in this record. As this Court has explained to counsel in the past, the Tenth Circuit has held that merely placing evidence in the record on summary judgment without pointing the Court to it is insufficient; instead, “it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without ... depending on the trial court to conduct its own search of the record.” ²¹ This Court declines to conduct a fishing expedition of plaintiff's affidavit or any other record evidence in order to support the assertions made in her response. Thus, in accordance with Local Rule 56.1, the Court will deem admitted for the purpose of summary judgment all facts that are not controvertedby a readily identifiable portion of the record.

Plaintiff further failed to abide by the federal and local rules governing summary judgment motions, by citing to documents that were inadmissible for lack of authentication or because they were hearsay documents offered for truth of the matter asserted. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.²² Defendant raised a number of objections on this basis.

Local Rule 56 requires that,

(d) Presentation of Factual Material. All facts on which a motion or opposition is based must be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories, and responses to requests for admissions. Affidavits or declarations must be made on personal knowledge and by a person competent to testify to the facts

stated that are admissible in evidence. Where facts referred to in an affidavit or declaration are contained in another document, such as a

deposition, interrogatory answer, or admission, a copy of the relevant excerpt from the document must be attached.²³

When deciding a summary judgment motion, the Court may consider evidence submitted, if admissible in substance, even if it would not be admissible, in form, at the trial.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.Evid. 902. The Tenth Circuit has explained,

Parties may, for example, submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form. Nonetheless, “the content or substance of the evidence must be admissible.” Thus, for example, at summary judgment courts should disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form. The requirement that the substance of the evidence must be admissible is not only explicit in Rule 56, which provides that “[s]upporting and opposing affidavits shall ... set forth such facts as would be admissible in evidence,” Fed.R.Civ.P. 56(e), but also implicit in the court's role at the summary judgment stage. To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.²⁶

Defendant challenges a number of the documents that plaintiff cites to in support of her factual assertions because the documentsare not properly authenticated. The Court agrees. For example, plaintiff cites to a number of doctors' notes, yet does not authenticate these notes through the testimony of the doctor. Nor does plaintiff provide her own affidavit or particular excerpt of her own deposition testimony in which she authenticates these notes as something she received from the doctor. To the extent that plai...