Powers v. Tweco Products, Inc.

• Citation: 206 F.Supp.2d 1097
• Decision Date: 05 June 2002
• Docket Number: No. CIV.A.00-1136-MLB.,CIV.A.00-1136-MLB.
• Parties: Marsha POWERS, Plaintiff, v. TWECO PRODUCTS, INC., Defendant.
• Court: U.S. District Court — District of Kansas

206 F.Supp.2d 1097

Marsha POWERS, Plaintiff, v. TWECO PRODUCTS, INC., Defendant.

No. CIV.A.00-1136-MLB.

United States District Court, D. Kansas.

June 5, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul S. McCausland, Young, Bogle, McCausland, Wells & Blanchard, PA, Wichita, KS, for Plaintiff.

Mikel L. Stout, Jay M. Rector, Boyd A. Byers, Foulston & Siefkin L.L.P., Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

BELOT, District Judge.

I. INTRODUCTION

Plaintiff filed this suit against Tweco Products, Incorporated (Tweco), alleging Tweco violated federal anti-discrimination laws. Docs. 1 and 35. Specifically, plaintiff claimed that Tweco demoted her and retaliated against her in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et al. This matter is currently before the court upon Tweco's motion for summary judgment. Doc. 44.¹ Finding jurisdiction proper, 28 U.S.C. § 1331, the court GRANTS Tweco's motion.

A. Summary Judgment Standard: FED. R. CIV. P. 56

Before addressing the issues presented by the parties, it is important to put into perspective the scope of this court's inquiry on summary judgment. The usual and primary purpose of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Federal Rule of Civil Procedure 56(c) directs the entry of summary judgment in favor of a party who "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See also Sports Unlimited, Inc. v. Lankford Enters., Inc., 275 F.3d 996, 999 (10th Cir. 2002). An issue is "genuine" if sufficient evidence exists on each side "so that a rational trier of fact could resolve the issue either way" and "[a]n issue of fact is `material' if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citations omitted); see also Adams v. American Guarantee & Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler). The mere existence of some factual dispute will not defeat an otherwise properly supported motion for summary judgment because the factual dispute must be material. See Schwartz v. Brotherhood of Maintenance of Way Employees, 264 F.3d 1181, 1183 (10th Cir.2001); see also Saucier v. Katz, 533 U.S. 194, 212 n. 3, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (Ginsburg, J., concurring) (dismissing an allegation of fact that was disputed but irrelevant). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Bartell v. Aurora Pub. Schs., 263 F.3d 1143, 1146 (10th Cir.2001) (quotation marks omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

1. Moving Party's Burden

Tweco must initially show both an absence of a genuine issue of material fact, as well as entitlement to judgment as a matter of law. See Adler, 144 F.3d at 670. Tweco need not "support its motion with affidavits or other similar materials negating [plaintiff's]" claims or defenses. Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (emphasis in original). Rather, Tweco can satisfy its obligation simply by pointing out the absence of evidence on an essential element of plaintiff's claim. See Sports Unlimited, Inc., 275 F.3d at 999; Adler, 144 F.3d at 671 (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548).

2. Non-Moving Party's Burden

If Tweco properly supports its motion, the burden shifts to plaintiff, who may not rest upon the mere allegation or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial. See Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.1993). In setting forward these specific facts, plaintiff must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Adler, 144 F.3d at 671. If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted. See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 533 (10th Cir.1994). Plaintiff 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. See Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988). Put simply, plaintiff must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

3. Presentation of Evidence

Certain local rules further govern the presentation of facts and evidence. Local Rule 56.1 requires Tweco to set forth a concise statement of material facts. D. KAN. R. 56.1. Each fact must appear in a separately numbered paragraph and each paragraph must refer with particularity to the portion of the record upon which Tweco relies. See id. The opposing memorandum must contain a similar statement of facts. Plaintiff must number each fact in dispute, refer with particularity to those portions of the record upon which she relies and, if applicable, state the number of the Tweco's fact that she disputes. The court may, but is not obligated to, search for and consider evidence in the record that would rebut the Tweco's evidence, but that plaintiff has failed to cite. See Mitchell v. City of Moore, 218 F.3d 1190, 1199 (10th Cir.2000); Adler, 144 F.3d at 672. All material facts set forth are deemed to be admitted for the purpose of summary judgment unless specifically controverted. See Gullickson v. Southwest Airlines Pilots' Ass'n, 87 F.3d 1176, 1183 (10th Cir. 1996) (applying the local rules of the District of Utah). A standing order of this court also precludes drawing inferences or making arguments within the statement of facts.

The parties need not present evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible. See Thomas v. International Bus. Mach's., 48 F.3d 478, 485 (10th Cir.1995) (internal quotations and citations omitted). For example, hearsay testimony that would be inadmissible at trial may not be included. See Adams, 233 F.3d at 1246. Similarly, the court will disregard conclusory statements and statements not based on personal knowledge. See Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1382 (10th Cir.1994) (regarding conclusory statements); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir.1995) (requiring personal knowledge). Finally, the court may disregard facts supported only by references to documents unless the parties have stipulated to the admissibility of the documents or the documents have been authenticated by and attached to an affidavit meeting the requirements of Rule 56(e). See FED. R. CIV. P. 56(e); D. KAN. R. 56.1; 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2722 (2d ed.1994) (footnotes omitted).

4. Summary

In the end, when confronted with a fully briefed motion for summary judgment, the court must 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, 91 L.Ed.2d 202 (1986). If sufficient evidence exists on which a trier of fact could reasonably find for the plaintiff, summary judgment is inappropriate. See Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (10th Cir.1991).

B. Facts²

1. The Parties

Plaintiff Marsha Powers is a forty-seven year old woman with a high school education. Doc. 45, ¶ 1. Defendant Tweco Products, Inc. (Tweco) manufactures welding guns, cutting torches, and related components and accessories. Doc. 45, ¶ 2. Until November 1998, Tweco employed 375 people but due to layoffs, now employs only 225 employees. Doc. 45, ¶ 3. The number of employees in Assembly, the department in which Marsha Powers worked, has been cut from fifty-five to ten. Doc. 45, ¶ 3.

Plaintiff was hired by Tweco in 1974, laid off in 1975, and rehired in 1977. Doc. 45, ¶ 11; Doc. 60, ¶ 11. Plaintiff held the position of Assembler A, a job with duties that included building welding guns and sub-assemblies. Doc. 45, ¶ 12. Since 1986, Assembler A has been a Grade V job. Other than leads, this was the highest graded Assembly job at the time. Doc. 45, ¶ 12.

During plaintiff's twenty-plus years of service with Tweco, she was under the direction of several supervisors. Bob George was plaintiff's supervisor for several years until he left [Tweco] on September 18, 1998. Doc. 45, ¶ 5. When Bob George left Tweco, Dan Sinnett became plaintiff's supervisor. Doc. 4, ¶ 6. Ron Dakin is Tweco's vice president of manufacturing. Doc. 45, ¶ 7. Dan Sinnett reports, as did Bob George while he worked for Tweco, directly to Ron Dakin. Doc. 45, ¶ 7. Tom Drury, the former vice president of human resources of Tweco's parent company, Thermadyne, was responsible for "oversight of employee benefits programs and employment policies" of Tweco. Doc. 45, ¶ 8. It appears that Tweco provides ADA training to its managers and has in place policies regarding Equal Employment Opportunity, Harassment, Plant Rules and Regulations (discipline), FMLA and Short-term Disability Leave, and Disability Termination of Employment. Doc. 45, ¶ 10.

2. Creating the Grade VI Position

In late 1997, Tweco's management team, responding in part to criticism attributed to pl...