Plakio v. Congregational Home, Inc.
| Decision Date | 20 July 1995 |
| Docket Number | No. 93-4222-SAC.,93-4222-SAC. |
| Citation | 902 F. Supp. 1383 |
| Parties | Wanda A. PLAKIO, Plaintiff, v. The CONGREGATIONAL HOME, INC., d/b/a Brewster Place, Defendant. |
| Court | U.S. District Court — District of Kansas |
COPYRIGHT MATERIAL OMITTED
Donald R. Hoffman, Mindy B. Rogovin, Tilton & Hoffman, Topeka, KS, for plaintiff.
J. Franklin Hummer, Davis, Unrein, Hummer, McCallister & Buck, Topeka, KS, for The Congregational Home, Inc.
The case comes before the court on the defendant's motion for summary judgment (Dk. 89). This is an employment discrimination case for sexual harassment and retaliatory discharge brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The plaintiff, Wanda Plakio, worked as a certified nurse's assistant ("CNA") for the defendant, The Congregational Home, Inc. ("Brewster Place") from October of 1989 until her termination on February 23, 1993. She claims her supervisors created a hostile work environment when they required her to give perineal care to one resident in a manner that sexually gratified the resident. She further alleges the defendant discharged her after she filed in May of 1992 a discrimination complaint with the Kansas Human Rights Commission ("KHRC") and the Equal Employment Opportunity Commission ("EEOC") charging sex discrimination and harassment.
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).
The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the non-moving party must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case." Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). "`The party opposing the motion must present sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the non-moving party. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir.1995).
More than a "disfavored procedural shortcut," summary judgment is an important procedure Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).
The plaintiff's written opposition to the summary judgment motion is deficient in several procedural respects. First, the plaintiff entitles her filing a "Motion in Opposition to Defendant's Motion for Summary Judgment," yet she requests as relief only the denial of the defendant's motion. A party that merely seeks to oppose a summary judgment motion need only file a response and memorandum, not another motion. See D.Kan.Rule 206(b). Second, the plaintiff does not submit a statement of controverted facts and fails to reference, controvert or even mention the defendant's statement of uncontroverted facts. Instead, the plaintiff offers her own statement of uncontroverted facts. As the court has said on a previous occasion, this practice does not satisfy the requirements of our local rules:
The court must point out the parties' failure to follow proper procedure for responding to a motion for summary judgment. As required by D.Kan.Rule 206(c), a party's memorandum in opposition to a motion for summary judgment must begin with "a concise statement of material facts as to which the party contends a genuine issue exists." In other words, the nonmoving party must file a statement of controverted, not uncontroverted, facts. In addition, "each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the records upon which the opposing party relies, and if applicable, shall state the number of movant's fact that is disputed." (emphasis added). In practice, the courts have tolerated different practices so long as they include specific citations to the record and directly refer to the movant's statement of facts by paragraph number. By not meeting these basic requirements a party runs the risk that "all material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." D.Kan.Rule 206(c).
Big Tree Enterprises, Ltd. v. Mabrey, No. 93-4024-SAC, 1994 WL 191996, 1994 U.S. Dist. LEXIS 6403 (D.Kan. Apr. 15, 1994). Finally, the plaintiff's opposition was due on March 1, 1995. See D.Kan.Rule 206(b); Fed. R.Civ.P. 6(e). She, however, did not file it until March 6, 1995, and did not ask for an extension of time or seek leave of the court for the late filing. "The failure to file a brief or response within the time specified within this rule shall constitute a waiver of the right thereafter to file such brief or response, except upon a showing of excusable neglect." D.Kan.Rule 206(g). The plaintiff's failure to controvert specifically the defendant's statement of uncontroverted facts and failure to file a timely response are independently sufficient grounds for granting the defendant's motion.
For purposes only of this motion for summary judgment, the court considers the following statement of facts to be uncontroverted.
1. Wanda Plakio worked at Brewster Place from approximately November of 1989 to February 1993 as a CNA.
2. Plakio and the other CNAs at Brewster Place performed perineal care on certain patients. The CNAs performed this care by themselves and as a team. The procedure used for perineal care varied depending on the patient.
3. Jane Doe resides on the medical one floor at Brewster Place and receives perineal care. During her deposition, Jane Doe described herself as a 71-year old woman who has suffered from multiple sclerosis for approximately nineteen years and has resided at Brewster Place for the last ten years. Unable to use her legs, she has used a wheelchair for approximately fourteen years. She has a permanent catheter and a history of urinary tract infections.
4. The perineal care procedure used on Jane Doe was unlike that used on any other Brewster Place patient. Jane Doe was a demanding patient who would ridicule and embarrass the CNAs. Jane Doe insisted on a particular procedure for perineal care that took as long as one-half hour to complete. Jane Doe became upset unless the assigned CNAs met her requests. Plakio and the other CNAs were embarrassed and disturbed by the requested procedure as they believed it amounted to performing a sexual act on Jane Doe. The CNAs that were deposed recalled that Jane Doe would "move around and groan" during the perineal care.
5. Plakio worked the evening shift on the medical one floor. She was not the only evening shift CNA assigned to perform perineal care on Jane Doe. Whenever it was her assignment, Plakio followed Jane Doe's instructions for perineal care.
6. Plakio and the other CNAs assigned to the evening shift frequently complained to their supervisors about the manner of perineal care required by Jane Doe. The subject of this care was also raised at group meetings attended by the CNAs and their supervisors. The supervisors typically responded to these complaints and concerns that it was a CNA's duty to perform the perineal care as requested by Jane Doe. The supervisors also explained that this special care was required because Jane Doe was more susceptible to diseases and infections in the genital area. When asked the consequences of refusing Jane Doe's request, the supervisors told the CNAs that if the patient complained then the CNA would receive a written reprimand. Vivian Reynoso, one of Plakio's supervisors and eventually Brewster Place's Director of Nursing, told the plaintiff and another CNA that she would look into getting a doctor's order to change Jane Doe's perineal care. When Reynoso was later asked if she had completed her inquiry, Reynoso told Plakio and the other CNA, "No,...
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