Reed v. Nellcor Putitan Bennett
| Decision Date | 04 February 2003 |
| Docket Number | No. 98-2312-CM.,98-2312-CM. |
| Citation | 244 F.Supp.2d 1205 |
| Parties | Mariah V. REED, Plaintiff, v. NELLCOR PURITAN BENNETT Defendant. |
| Court | U.S. District Court — District of Kansas |
Michael D. Cole, Thompson Coburn, LLP, St. Louis, MO, Richard Helfand, Panethiere & Helfand, Kansas City, MO, for plaintiff/counter-defendant.
Thomas N. Sterchi, Mary C. O'Connell, Linda Koch Marshall, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, MO, for defendant/counter-claimant.
Upon direction from the Tenth Circuit Court of Appeals in its December 6, 2002 order in Reed v. Bennett, 312 F.3d 1190 (10th Cir.2002), this court hereby vacates its March 23, 2001 order (Doc. 105) wherein it granted defendant's summary judgment motion and its March 27, 2001 order (Doc. 107) entering judgment against plaintiff.
This case arises out of plaintiffs employment by defendant Nellcor Puritan Bennett ("Nellcor"). Plaintiff filed suit against defendant Nellcor,1 alleging she was discriminated against on the basis of a disability and retaliated against for exercising her protected rights, all in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. and the Kansas Act Against Discrimination (KAAD), Kan. Stat. Ann. § 44-1001, et seq. Plaintiff further alleges she was unlawfully retaliated against under Kansas state law for filing a claim of compensation with the Kansas Division of Workers' Compensation. In its answer, defendant Nellcor filed a counterclaim against plaintiff alleging breach of a severance agreement.
Following the Tenth Circuit's order, pending once again before the court is defendant Nellcor Puritan Bennett's Motion for Summary Judgment (Doc. 87). In this motion, defendant Nellcor seeks the court to enter an order granting summary judgment as a matter of law against plaintiff. Also pending once again before the court is defendant Nellcor's Motion to Dismiss for Failure to Comply with the Court's Order to Mediate (Doc. 99). In its motion to dismiss, defendant Nellcor seeks to have all claims asserted against it dismissed with prejudice.
The Tenth Circuit remanded the case back to this court with direction "either to consider Nellcor's uncontested motion [for summary judgment] to determine if Nellcor met its initial burden of production under Fed.R.Civ.P. 56(c), or to set forth analysis of the Meade factors supporting the court's entry of judgment as a sanction." Reed, 312 F.3d at 1196 (referencing Meade v. Grubbs, 841 F.2d 1512 (10th Cir.1988)).
As set forth below, upon an application of the Rule 56 standard to defendant Nellcor's pending motion for summary judgment, the court finds that defendant Nellcor is entitled to judgment as a matter of law on each of plaintiffs claims asserted against it.
Despite an enlargement of the response time, plaintiff failed to file a response to defendant Nellcor's motion for summary judgment within the time specified by District of Kansas Rule 7.1(b) and Federal Rule of Civil Procedure 6(e), or otherwise. Accordingly, plaintiff has "waive[d] the right to respond or to controvert the facts asserted in the summary judgment motion." Id. at 1195. Therefore, the court will "accept as true all material facts asserted [by defendant] and properly supported in the summary judgment motion." Id. Applying this standard, the court finds the facts material to the pending summary judgment motion are as follows.
Plaintiff began her employment with defendant Nellcor in 1986. In December 1995, plaintiff was diagnosed with carpal tunnel syndrome and ulnar neuropathy. Subsequently, in December 1995 and February 1996, plaintiff underwent procedures addressing these conditions. Defendant filed an Employer's Report of Accident with the Kansas Worker's Compensation office on October 24, 1995. The report indicates an accident involving plaintiff occurred on defendant's premises and resulted in "back/shoulder/neck strain" to plaintiff. Subsequently, on December 26, 1995, plaintiff filed a worker's compensation claim.
On February 17, 1997, Pat Cavanah with defendant Nellcor's Human Resources Department advised plaintiff that her position was being eliminated and that defendant Nellcor was "letting people go." On February 19, 1997, Ms. Cavanah notified plaintiff that her employment as a precision measurement specialist would end effective March 21, 1997. Ms. Cavanah affirmed under oath that plaintiffs employment was terminated, effective March 21, 1997 because of a reduction in work force, job elimination, and a plant consolidation.2
In connection with the termination of her employment, on March 26, 1997, plaintiff and defendant Nellcor entered into a Severance Agreement, Release and Waiver of Claims (hereinafter "Agreement"). Plaintiff received the Agreement on March 22, 1997. Plaintiff signed the Agreement on March 26, 1997. As a result of signing the Agreement, plaintiff received a lump sum payment of $20,056.80 from defendant Nellcor. This payment included severance pay, candidate bank pay and outplacement fees. Plaintiff read the Agreement before she signed it. Plaintiff understood the Agreement when she read it. Plaintiff was given thirty days to consider the Agreement. Defendant Nellcor advised plaintiff to consult with an attorney prior to signing the Agreement. Plaintiff consulted with an attorney about the Agreement before she signed it. No representative of defendant Nellcor threatened plaintiff regarding her signing of the Agreement.
The Agreement provides that plaintiff: unconditionally release Nellcor Puritan Bennett and Nellcor Puritan Bennett's affiliates, and their successors and assigns, and all of their past and present employees, officers, directors, and agents from any and all claims you have or may have had against any of them prior to the date you sign this Agreement, to the maximum extent permitted by law.
The Agreement further provides that: [t]his release includes, but is not limited to, (i) any and all claims relating to or arising from your employment relationship with Nellcor Puritan Bennett or the termination of that relationship . . . (iii) any and all claims which are related to or concern discrimination under local, state, or federal law, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the American[s] with Disabilities Act . . . (iv) any and all claims arising out of any other laws and regulations relating to employment or employment discrimination; and (v) any and all claims for attorneys' fees and costs.
As part of the termination of plaintiffs employment, defendant placed plaintiff in a candidate job bank. Plaintiff was placed in a candidate bank from February 20, 1997 to March 21, 1997. While plaintiff was in the candidate bank she could apply for jobs for which she was qualified. Plaintiff was never told that someone from defendant Nellcor would call her to let her know if there were any positions open. She was told she could call in to check job postings at the defendant's facility. Defendant posted the job of First Article Inspector on April 7,1997.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission and the Kansas Human Rights Commission on December 10, 1997, asserting that defendant terminated her employment on the basis of her asserted disability, in violation of the ADA. Subsequently, plaintiff filed this lawsuit asserting disability and retaliation claims under the ADA and KAAD, and a state law retaliation claim.
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." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart. Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). 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." Id. (citing Anderson, All U.S. at 248, 106 S.Ct. 2505).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that 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. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
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." Anderson, All U.S. at 256, 106 S.Ct. 2505; see Adler, 144 F.3d at 671 n. 1 (). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 411 U.S. at 256, 106 S.Ct. 2505. 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." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition...
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