Stevens v. Water District One of Johnson County
| Decision Date | 19 May 2008 |
| Docket Number | Case No. 06-2265-JAR. |
| Citation | 561 F.Supp.2d 1224 |
| Parties | Ralph STEVENS, Plaintiff, v. WATER DISTRICT ONE OF JOHNSON COUNTY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Steven D. Horak, Law Office of Steven D. Horak, Overland Park, KS, for Plaintiff.
Daniel C. Estes, Michael K. Seek, Michelle R. Stewart, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, KS, for Defendant.
Plaintiff Ralph Stevens alleges that defendant Water District One of Johnson County ("WaterOne"), discriminated against him based on his age in violation of the Age Discrimination in Employment Act ("ADEA"), and hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. This matter comes before the Court on WaterOne's Motion for Summary Judgment (Doc. 19) and plaintiffs Motion to Strike and Compel Documents (Doc. 30). For the reasons explained in detail below, the Court denies plaintiffs motion to strike, grants defendant's motion for summary judgment with respect to the ADEA1 and hostile work environment claims and denies defendant's motion with respect to the 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."2 In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.3 A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."4 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."5
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.6 In attempting to meet this 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.7
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."8 The nonmoving party may not simply rest upon its pleadings to satisfy its burden.9 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."10 To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."11 Rule 56(e) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.12 The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.13
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."14 In responding to a motion for summary judgment, "a party 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."15
Before discussing the uncontroverted facts in this case, the Court addresses plaintiffs objections to certain affidavits that WaterOne submitted as attachments in support of its summary judgment motion. Plaintiff originally challenged certain affidavits on the basis that they lack personal knowledge or contain hearsay information in violation of D. Kan. R. 56.1. and Fed.R.Civ.P. 56(e). In its reply brief, WaterOne asserts that the affidavits are proper, based on personal knowledge and created in good faith. Nevertheless, WaterOne submitted supplemental affidavits that "remedy any potential defects raised by plaintiff." These supplemental affidavits were provided for Paul Smith, Chuck Weber, Larry Meacham, Eric Arner, Mike Armstrong and Tom Schempp and original affidavits from Kevin Yoder, Travis Detherage, and Ed Kriebs. WaterOne also attached new exhibits and included additional information in some of the affidavits.
Plaintiff argues that all of the reply affidavits and exhibits should be stricken because they improperly offer "new argument" to support WaterOne's motion for summary judgment. Plaintiff does not object to the content or admissibility of the exhibits, but rather, objects that they are being submitted for the first time in WaterOne's reply. Plaintiff also asks the Court to compel WaterOne to produce all the documents it has "concealed" throughout the course of this litigation. Defendant responds that the affidavits attached to its reply are supplemental affidavits, permitted by Fed.R.Civ.P. 56(e) and that the evidence is offered as rebuttal to plaintiffs arguments.
Fed.R.Evid. 602 requires that a testifying witness "ha[ve] personal knowledge of the matter" testified to. Rule 56(e) states, in pertinent part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The Tenth Circuit has stated that "under the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to."16 Statements of "mere belief in an affidavit must be disregarded."17 Rule 56(e) also requires that "copies of all papers or parts thereof referred to in an affidavit be attached thereto or served therewith." To enforce this rule, the court ordinarily does not strike affidavits, but simply disregards those portions that are not shown to be based upon personal knowledge or otherwise do not comply with Rule 56(e).18
Local Rule 56.1 states: "In a reply brief, the moving party shall respond to the nonmoving party's statement of undisputed material facts in the manner prescribed in subsection (b)(1)." Subsection (b)(1) states:
A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and if applicable, shall state the number of movant's fact that is disputed.
Plaintiff appears to argue that Rule 56.1 allows a party filing a reply to respond to facts presented by the adverse party but does not allow the party to set forth additional facts. Plaintiff asserts that the supplemental affidavits set forth additional new arguments and evidence and therefore violate the local rule. WaterOne responds that the supplemental affidavits are proper and permitted by Fed. R.Civ.P. 56(e), which states, in pertinent part: "The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." The Tenth Circuit has stated that a district court "clearly has discretion to permit supplemental affidavits it finds useful for summary judgment determination," such as information the court finds relevant and admissible as evidence.19
Plaintiff also argues that WaterOne for the first time raises new issues and arguments in its reply. Plaintiff correctly states that as a general rule, a party is prohibited from raising new arguments in a reply brief.20 Plaintiff, however, does not identify these allegedly "new" issues or arguments offered by WaterOne in support of summary judgment. In its initial brief, WaterOne asserted that plaintiffs retaliation claim must fail because he could not make a prima facie case of hostile work environment and could not show that WaterOne's stated reasons for termination were pretextual. In his response brief, plaintiff contends that the alleged harassment was severe and pervasive and contradicts and denies WaterOne's version of the facts leading up to his termination, in particular with respect to the Missouri River turbidity issue. The essence of plaintiffs opposition is to flat out deny the statements in Meacham's original affidavit, going so far as to accuse him and others of lying and fabrication. In its reply, WaterOne does not deviate from its original arguments on hostile work environment and retaliation. Thus, instead of new arguments, the situation before the Court involves the use of additional evidence to support argument previously advanced.
"Where the reply affidavit merely responds to matters placed in issue by the opposition brief and does not spring upon the opposing party new reasons for the entry of summary judgment, reply papers — both briefs and affidavits — may properly address those issues."21 "[I]f the court relies on new materials or argument in a reply brief, it may not forbid the nonmovant from responding to these new materials."22 This rule applies to new materials submitted in support of a legal argument that has already been made.23 Plaintiff does not move for leave to file a surreply, instead opting to move to strike all new or supplemental submissions. By considering plaintiffs instant motion to strike, the Court has permitted plaintiff to respond to the supplemental affidavits and new evidence.24
The Court will address each affidavit in turn.
A. Ed Kriebs, Travis Detherage and Kevin Yoder Affidavits: In response to plaintiffs assertion that Meacham...
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