Ryan v. Shawnee Mission Unified Sch. Dist. No. 512

• Decision Date: 07 July 2006
• Docket Number: No. 05-2213-JWL.,05-2213-JWL.
• Citation: 437 F.Supp.2d 1233
• Parties: Juanita RYAN, Plaintiff, v. SHAWNEE MISSION UNIFIED SCHOOL DISTRICT NO. 512 and Diane Hansen, Defendants.
• Court: U.S. District Court — District of Kansas

437 F.Supp.2d 1233

Juanita RYAN, Plaintiff, v. SHAWNEE MISSION UNIFIED SCHOOL DISTRICT NO. 512 and Diane Hansen, Defendants.

No. 05-2213-JWL.

United States District Court, D. Kansas.

July 7, 2006.

COPYRIGHT MATERIAL OMITTED

Kelly L. Jackson, Leawood, KS, for Plaintiff.

Curtis L. Tideman, Tammy M. Somogye, Lathrop & Gage, LC—OP, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Plaintiff Juanita Ryan was formerly a physical therapist with the defendant Shawnee Mission Unified School District No. 512. She asserts claims against the school district and her former supervisor, Diane Hansen, for retaliation and wrongful termination for violations of her First Amendment free speech rights, pursuant to 42 U.S.C. § 1983, and § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794(a). This matter is currently before the court on Plaintiffs Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment (does. # 66 & # 69). For the reasons explained below, the court will grant defendants' motion with respect to plaintiffs First Amendment retaliation claim and will deny it as to plaintiffs Rehabilitation Act claim. Having granted summary judgment in favor of defendants on plaintiffs First Amendment retaliation claim, the court will deny plaintiffs motion for partial summary judgment as moot because it pertains to one of defendants' asserted defenses on that claim.

STATEMENT OF MATERIAL FACTS

The court's analysis of the facts of this case is complicated significantly by two considerations. First and foremost, plaintiff has largely failed to support any of her factual allegations with admissible evidence. At the summary judgment stage, facts must be established by evidence which would be admissible at trial. Fed. R.Civ.P. 56(e); Pastran v. K-Mart Corp., 210 F.3d 1201, 1203 n. 1 (10th Cir.2000). To be sure, the parties do not need to present evidence in a form that would be admissible at trial (e.g., live testimony), but the content or substance of the evidence must be admissible. Bryant v. Farmers Ins. Exchange, 432 F.3d 1114 1122 (10th Cir.2005); Pastran, 210 F.3d at 1203 n. 1. Thus, factual allegations must be supported by evidence "identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 675 (10th Cir.2002) (quotation omitted). In this case, plaintiffs factual allegations are largely supported by references to notes, emails, and other documents that are not authenticated or part of a sworn affidavit or other testimony. Thus, the majority of exhibits plaintiff filed in support of her response are not proper Rule 56 evidence. See, e.g., Hayes v. Marriott, 70 F.3d 1144, 1148 (10th Cir.1995) (unsworn statements do not raise factual issues precluding summary judgment); Fed.R.Civ.P. 56(c) & (e); D. Kan. Rule 56.1(d). In addition to plaintiffs failure to establish the admissibility of most of her exhibits, many of her numbered fact paragraphs rely on inadmissible hearsay. "[I]f that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge." Bryant, 432 F.3d at 1122. Consequently, inadmissible hearsay will not defeat summary judgment. Lozano v. Ashcroft, 258 F.3d 1160, 1166 (10th Cir.2001); Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1082 n. 5 (10th Cir.1999); Treff v. Galetka, 74 F.3d 191, 195 (10th Cir.1996).

Defendants raised these evidentiary objections for the first time in their reply brief. The court granted plaintiff leave to file a surreply brief, explaining that plaintiff could use her surreply to respond to issues which defendants had raised anew for the first time in their reply brief. Thus, in allowing plaintiff to file a surreply the court gave plaintiff the opportunity to respond to the defendants' evidentiary objections. Notwithstanding the opportunity to respond (perhaps by authenticating documents or pointing to a hearsay exception), plaintiff did not respond to those objections. Instead, she filed a motion to amend her response to defendants' motion for summary judgment (doc. # 100). In that motion, she seeks to correct references to the evidence in twenty-one numbered fact paragraphs by changing references to deposition testimony and by submitting a few different exhibits. Plaintiff contends that her previous errors in failing to refer to and attach the appropriate evidence were inadvertent. The court will deny plaintiffs motion to amend her response because, first, plaintiff had the opportunity to marshal her evidence in response to defendants' motion for summary judgment when she filed her response to the motion and again when she filed her surreply. Moreover, even if the court were to permit her to amend her response, most of the prior evidentiary deficiencies would not be cured. Far most importantly, the court denies the motion because the court would reach the same result with or without the proposed changed evidentiary citations in any event.

In addition to plaintiffs failure to properly support her factual allegations with admissible evidence, the second and related consideration which further complicates the court's analysis of the facts of this case is that the parties submitted voluminous statements of fact. The statement of facts contained in defendants' motion consists of 249 fact paragraphs spanning fifty-four pages. In response, plaintiff really did not controvert defendants' factual allegations in any significant respect. Instead, she asserted factual allegations which essentially added to fifty-five of defendants' fact paragraphs. Additionally, the statement of facts contained in her response to defendants' motion consists of 190 fact paragraphs spanning thirty-three pages. A significant portion of both of the parties' factual allegations are immaterial to the court's resolution of defendants' motion for summary judgment in the sense that, although they are helpful to the court's understanding of the background of the case, they do not impact the court's determination of whether summary judgment is warranted on either of plaintiff's claims.

Because of the parties' unnecessarily voluminous statements of fact, then, the court will not resolve each and every one of defendants' evidentiary objections. Instead, in an abundance of caution, the court has thoroughly reviewed the record in an effort to ensure that plaintiff is not deprived of her day in court simply because her counsel has not marshaled the evidence in the manner required by summary judgment practice and applicable rules. In doing so, the court has attempted to anticipate potential hearsay exceptions and exclusions which might apply despite the fact that plaintiff's counsel did not raise those arguments. Ultimately, the court finds that plaintiffs failure to support her factual allegations is immaterial to the court's resolution of defendants' motion for summary judgment. With or without those factual allegations, plaintiff has failed to establish that a genuine issue of material fact exists to withstand summary judgment on her First Amendment retaliation claim and, conversely, the school district has failed to establish that it is entitled to summary judgment on her Rehabilitation Act claim. Accordingly, consistent with the well established summary judgment standard, the court accepts the facts which are uncontroverted or relates them in the light most favorable to plaintiff, the nonmoving party.

A. The School District's Special Education Department¹

The school district has fifty-one schools. Each school building is managed by a principal who supervises the staff assigned to work exclusively in that building. Nearly five thousand students in the school district have individualized education plans (IEPs). Of those, 3,481 students have identified educational disabilities that impact their ability to receive a free and appropriate education (FAPE). Students with IEPs are commonly called "special education students." Some have health impairments which impact their ability to make educational progress and are the ones with whom physical therapists (PTs) work. Plaintiff was formerly employed by the school district as one of the PTs and, as such, she worked with those students.

The school district's hierarchy relating to plaintiffs employment with the school district is as follows.² The school district's Director of Special Education is Deborah Haltom. The school district is divided into five areas for purposes of managing special education resources: the East area, the South area, the North area, the Northwest area, and the West area. The school district assigns coordinators to manage the special education resources in each of those five areas. Ms. Haltom supervises these area coordinators. The area coordinators, in addition to managing their respective areas, have specialized areas of responsibility. Defendant Diane Hansen is the coordinator for the East area and also supervises the PTs and a physical therapy assistant (PTA). Pona Piekarski is the coordinator for the South area to which plaintiff was assigned. Several types of specialists work with special education students such as PTs, occupational therapists (OTs), autism specialists, school psychologists, speech pathologists, social workers, and vision specialists. These specialists, including PTs, are assigned to several schools within the district.

When the school district suspects that a student needs special education services, or at a parent's request, a diagnostic team meets with the student's parent(s) to develop an evaluation plan and determine the appropriate way to collect data to determine whether the student qualifies for such services. The student is then evaluated by different specialists who compile an evaluation report and provide it to the...