Praseuth v. Newell-Rubbermaid, Inc.

• Decision Date: 18 July 2002
• Docket Number: No. 00-1378-JTM.,00-1378-JTM.
• Citation: 219 F.Supp.2d 1157
• Parties: Khammoung PRASEUTH, Plaintiff, v. NEWELL-RUBBERMAID, INC., a corporation, et al., Defendants.
• Court: U.S. District Court — District of Kansas

219 F.Supp.2d 1157

Khammoung PRASEUTH, Plaintiff, v. NEWELL-RUBBERMAID, INC., a corporation, et al., Defendants.

No. 00-1378-JTM.

United States District Court, D. Kansas.

July 18, 2002.

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Dwight A. Corrin, Wichita, KS, Gerald B Determan, Zampi and Associates, San Diego, CA, for plaintiff.

David S. Wooding, Terry L. Mann, Martin, Pringle, Oliver, Wallace & Bauer, LLP, Wichita, KS, for defendants.

MEMORANDUM AND ORDER

MARTEN, District Judge.

This matter comes before the court on cross motions for summary judgment in this employment discrimination case. Plaintiff asserts claims against the corporate defendants, alleging that both violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Kansas Act Against Discrimination ("KAAD"), 44 K.S.A. § 44-1001, et seq. Plaintiff also claims the corporate defendants are liable to her for breach of an implied contract and invasion of privacy. Against the four individually named defendants, plaintiff asserts violations of the non-retaliation provisions of the ADA. Finally, plaintiff brings fraud claims against all of the defendants.

Plaintiff's motion for summary judgment was filed on February 11, 2002 and was fully briefed on April 15, 2002. Defendants' motion for summary judgment was filed on February 28, 2002 and was fully briefed on May 3, 2002. The motions are thus ripe for determination. On April 10, 2002, plaintiff did file a supplement to her response to defendants' motion for summary judgment. Defendants did not object to the first supplement. However, on June 13, 2002, plaintiff filed a second supplement to her response to defendants' motion for summary judgment. The second supplement noted a recent Supreme Court case that cut against one of plaintiff's positions, but also cited additional deposition testimony and included additional argument based thereon. On June 14, 2002, defendants moved to strike the second supplement, or alternatively, for permission to reply. By order dated June 20, 2002, the court denied defendants' motion to strike and granted the motion for permission to reply. The court thus will consider the testimony cited in plaintiff's second supplement and will further consider defendants' response to that supplement.

I. Statement of Uncontroverted Facts

A. Objections

Before discussing the factual record in this case, the court will address objections raised by both plaintiff and defendants. First, plaintiff seeks to establish the existence of her physical impairments through the use of testimony from two physicians named as experts in this case, Drs. Pollock and Cook and her treating physician, Dr. Cannon. Defendants object to this mode of proof, arguing that plaintiff is attempting to circumvent the court's gatekeeping role established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendants assert that utilizing expert testimony at the summary judgment stage denies the defendants an opportunity to subject the testimony to the Daubert standard. Beyond the underlying Daubert objection, defendants make vague arguments regarding an alleged lack of foundation and non-specific attacks on the experts' knowledge of the facts and credentials.

The court concludes that defendants' basic argument is unfounded. It is clear that the law allows the use of expert testimony at the summary judgment stage and, in fact, requires expert testimony in a wide variety of cases. Defendants cite Garrett v. Bryan Cave LLP, 211 F.3d 1278, 2000 WL 430163 (10th Cir.2000) in support of their argument. In that case, the circuit indicated that "the testimony of an expert can be rejected on summary judgment if it is conclusory and thus fails to raise a genuine issue of material fact." Id. (quoting Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242, 1247 (10th Cir.1999)). Garrett clearly indicates that the law contemplates the use of non-conclusory expert statements in support of summary judgment. Further, review of the doctors' testimony indicates that the stated opinions are not merely conclusory but are actually quite fact driven. As such, the opinions are useful to the court in determining plaintiff's physical condition.

Beyond the fact that the law contemplates use of proper expert testimony in support of summary judgment, defendants' Daubert argument is mooted by the fact that they have failed to make a Daubert motion with respect to Drs. Pollock, Cook, and Cannon. The court's deadline for Daubert motions was June 18, 2002. Defendants did file a timely Daubert motion, but it did not address either of these experts. Here, defendants' primary argument is that plaintiff cannot support a summary judgment motion with expert testimony because it would deny them the right to subject the expert testimony to Daubert scrutiny. Having now waived the right to request such Daubert scrutiny of these two experts, defendants' objection is denied and the court will consider the testimony of Drs. Pollock, Cook, and Cannon with the caveat that the court will ignore purely conclusory statements that are not based in fact.

Second, in partial response to defendants' motion for summary judgment, plaintiff filed 82 pages of objections to a large majority of defendants' statement of facts. The objections fall, in large part, into three categories: relevance, lack of personal knowledge, and hearsay. The court has reviewed plaintiff's objections and finds the vast majority of them to be trivial at best and frequently could be considered absurd. To demonstrate, the court will address several of the objections taken at random. Starting at page 20 of plaintiff's objections, she addresses defendants' statement of fact number 43, which states: "In his [Mr. Southammavong's] opinion, plaintiff is able to use a knife safely if she is careful and does not cut herself." Defendants cite the following testimony from the witnesses' transcript: "Q: She has been able to do that safely? A: If she careful, I think it's okay, if she don't cut herself." Plaintiff objects to this fact statement on the ground that it consists of inadmissible opinion testimony. A witness who has observed plaintiff in the workplace is more than qualified to formulate a lay opinion as to whether plaintiff has been or will be able to safely use a knife without cutting herself. Such testimony does not require specialized knowledge of plaintiff's condition. At page 31 of the objections, plaintiff addresses plaintiff's statement of fact number 57, which states: "During that meeting, Marr asked plaintiff to go home and get updated restrictions from her doctor within two weeks." The cited testimony from plaintiff's deposition reads as follows: "A: Janice Marr told me to go home and to get new restrictions from my doctor. She said that I had two weeks to get new restrictions." Plaintiff objects on the ground that this evidence is inadmissible hearsay. This objection is invalid as the statement of Marr is not offered for the truth of the matter, but only to establish what was said. Defendants are not attempting to prove through this testimony that plaintiff had two weeks to get new restrictions, but only that she was told that she had two weeks. At page 40, plaintiff objects to defendants' statement of fact number 75, which states: "The short-term disability forms completed or signed by plaintiff represent that she is totally disabled and not working." The cited evidence is the forms themselves. Plaintiff objects on hearsay grounds and lack of authentication. Plaintiff did not, however, object to the authenticity of the documents at the deposition. Nor does the court see any hearsay issue in this fact statement whatsoever. At page 50 of the objections, plaintiff addresses defendants' statement of fact number 91, which states: "Plaintiff's Social Security disability application was not successful and she was denied benefits." Defendants cited plaintiff's deposition testimony as follows: "Q: Did you get those benefits? A: No." Plaintiff now objects to this evidence as inadmissible hearsay because it is offered to prove that Social Security made a statement denying benefits. This objection is entirely frivolous and does not merit further comment. The court could keep selecting objections on a ten page interval and would continue to find objections that are totally lacking in merit, but for the sake of judicial economy it will not. Suffice it to say that plaintiff's objections are overruled unless otherwise noted in the statement of facts. Plaintiff will note that it is her duty to come forward with FACTS to controvert the assertions of defendants. To the extent plaintiff has failed to do so, the court must presume defendants' statements are uncontroverted. Plaintiff has, in large part, chosen to rely on senseless objections in an attempt to prevent the formulation of a workable record in this case. Despite plaintiff's approach to defendants' motion, the merits of this case will be fully considered.

B. Procedural Background

Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in April of 2000 and with the Kansas Human Rights Commission ("KHRC") in May of that same year. The EEOC issued a Notice of Right to Sue on July 17, 2000. Plaintiff filed the instant action on September 11, 2000 and defendants answered on October 31, 2000. Plaintiff filed an amended complaint on June 8, 2001 and defendants answered the amended complaint on July 2, 2001. Discovery closed on November 30, 2001 with the exception of discovery pertaining to expert witnesses.

C. Identities of Parties and Witnesses

Plaintiff was employed at the Rubbermaid Home Products plant in Winfield, Kansas for approximately 19 years, from October 1980 to January 2000. Rubbermaid Home Products is a division of Rubbermaid, Inc. ("Rubbermaid"). Throughout her time at Rubbermaid, plai...