Tatum v. Everhart

• Decision Date: 03 February 1997
• Docket Number: Civil Action No. 95-2518-GTV.
• Citation: 954 F.Supp. 225
• Parties: Festus D. TATUM, Plaintiff, v. Carla Shelton EVERHART, The United Way of Wyandotte County, and The United Way of America, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

954 F.Supp. 225

Festus D. TATUM, Plaintiff, v. Carla Shelton EVERHART, The United Way of Wyandotte County, and The United Way of America, Inc., Defendants.

Civil Action No. 95-2518-GTV.

United States District Court, D. Kansas.

February 3, 1997.

Annette M. Jackson, Kansas City, KS, for Festus D. Tatum.

Carl A. Gallagher, Deryl W. Wynn, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Carla Shelton Everhart, United Way of Wyandotte County.

David Lee Heinemann, Patricia A. Konopka, Stinson, Mag & Fizzell, P.C., Kansas City, MO, for United Way of America, Inc.

MEMORANDUM AND ORDER

VAN BEBBER, Chief Judge.

This employment discrimination case is before the court upon defendant United Way of America, Inc.'s motion for summary judgment (Doc. 15) and motion to remove the case from the June 2, 1997 trial calendar and set aside the scheduling order (Doc. 37). For the reasons set forth below, the summary judgment motion is granted and the other motion is denied as moot.

Background

In his complaint, plaintiff Festus D. Tatum alleges the following: He became an employee of United Way of Wyandotte County, Kansas (UWWC) in 1988. Defendant Carla Shelton Everhart became the plaintiff's supervisor as of January 1994 when UWWC employed her as its President. Everhart subjected Tatum to sexual harassment and discrimination. In retaliation for spurning her sexual advances, Everhart gave the plaintiff negative evaluations. She also made comments regarding Tatum's age and his "old-fashioned" mode of operation. Everhart terminated the plaintiff's employment with UWWC in January 1995. Tatum was replaced by a younger, white male.

On August 16, 1995, based upon the termination of his employment, Tatum filed a charge of gender, age, and race discrimination with the Equal Employment Opportunity Commission (EEOC) and the Kansas Human Rights Commission (KHRC). In the charge, the plaintiff named only UWWC as his employer.

On November 21, 1996, Tatum filed suit against Everhart, UWWC, and United Way of America, Inc. (UWA), alleging gender, age, and race discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; Kansas Act Against Discrimination (KAAD), K.S.A. § 44-1001 et seq.; and Kansas Age Discrimination in Employment Act (KADEA), K.S.A. § 44-1111 et seq., as well as intentional infliction of emotional distress in violation of Kansas common-law.

Defendant UWA subsequently filed this motion for summary judgment, asserting three grounds for granting the motion. First, UWA argues that it was not Tatum's employer within the meaning of Title VII, the ADEA, the KAAD, the KADEA, or Kansas common law. Next, UWA contends that Tatum failed to exhaust his administrative remedies when he did not name UWA as a respondent in his discrimination charge to the EEOC and KHRC. Finally, UWA maintains that after dismissing the federal claims, this court should not exercise supplemental jurisdiction over the state-law claims, but even if the court did, those claims also must fail.

Summary Judgment

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue regarding any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All disputed facts, and reasonable inferences derived from the evidence presented, must be resolved in favor of the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986); Frandsen v. Westinghouse Corp., 46 F.3d 975, 977 (10th Cir.1995); Federal Deposit Ins. Corp. v. 32 Edwardsville, Inc., 873 F.Supp. 1474, 1479 (D.Kan.1995). The existence of factual disputes is not an automatic preclusion to the grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A "material" fact is one "that might affect the outcome of the suit under the governing law," and the issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The initial burden of demonstrating want of a genuine issue of material fact rests with the movant. Showing a lack of evidence to support the nonmovant's case discharges this burden. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). After the movant has supported properly the summary judgment motion, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial" and not rely upon allegations or denials contained in the pleadings. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514.

The movant is entitled to judgment as a matter of law should the nonmoving party insufficiently establish an essential element of a claim for which the nonmovant has the burden. Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.

Rule 56 should be construed to satisfy one of its principal purposes, namely, to segregate and eliminate factually unsupported claims and defenses. Id. Entitlement to summary judgment must be proven beyond a reasonable doubt. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980).

Rule 56(f)

Tatum argues that this court should delay ruling upon the summary judgment motion until after discovery is complete and the parties have had the opportunity to supplement their pleadings based upon that discovery. The plaintiff suggests "there is information which tends to support the contention that there was an interrelation between the personnel operations of the corporate defendants and the control of their labor relations, as well as common management." (Pltf.'s Response, at 10.) Tatum submits the affidavit of his counsel in accordance with Fed.R.Civ.P. 56(f), which provides:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

In the affidavit, Tatum's counsel states that she has reviewed documents from the plaintiff and those UWA has filed with the court; that she has interviewed other persons concerning their knowledge of relevant and material facts concerning the plaintiff's cause of action and UWA's motion; and that the "plaintiff has information and believes" UWA and UWWC "have a dynamic, symbiotic relationship" partially evident from the attachments to UWA's summary judgment motion; and that the plaintiff expects to discover additional information, available only from the defendants, regarding "UWA's involvement in the process of personnel selection, setting wage and salary levels for the various positions in the local organizations."

The affidavit of Tatum's counsel is insufficient to invoke the protection of Rule 56(f). The affidavit does not explain "`why facts precluding summary judgment cannot be presented,'" does not describe "`what steps have been taken to obtain these facts,'" and does not explain "`"how additional time will enable [her] to rebut movant's allegations of no genuine issue of fact."'" First Sav. Bank v. First Bank Sys., Inc., 902 F.Supp. 1366, 1382 (D.Kan.1995) (quoting Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992) (quoting Meyer v. Dans un Jardin, S.A., 816 F.2d 533, 537 (10th Cir.1987))), rev'd on other grounds, 101 F.3d 645 (10th Cir.1996). The affidavit also does not specify which documents are relevant and with whom she spoke or what information, if any, they provided to rebut UWA's position. Simply asserting that UWA has evidence supporting the plaintiff's position will not justify denying summary judgment under Rule 56(f). See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir.1993). Additionally, the record reveals that Tatum has not filed any formal discovery requests of UWA since filing suit on November 21, 1995. The plaintiff has had ample time to engage in discovery. See id. ("if the party filing the Rule 56(f) affidavit has been dilatory, ... no extension will be granted"); Friends of Santa Fe County v. LAC Minerals, Inc., 892 F.Supp. 1333, 1343 (D.N.M.1995) ("Plaintiffs had not attempted to serve discovery requests at this time ... and so fail to assert sufficient grounds to invoke Rule 56(f)"). The court will not defer its ruling and, accordingly, will address the merits of UWA's motion for summary judgment.

Employer under Title VII & ADEA

UWA argues that Tatum's Title VII and ADEA claims cannot withstand summary judgment because UWA was not Tatum's "employer" within the statutory meaning of that term. Both acts prohibit an employer from discriminating against an employee, 29 U.S.C. § 623(a)(1); 42 U.S.C. § 2000e-2(a)(1), and define employer similarly, Thomason v. Prudential Ins. Co., 866 F.Supp. 1329, 1334 n. 9 (D.Kan.1994); see Wheeler v. Hurdman, 825 F.2d 257, 263 (10th Cir.1987) (case law construing Title VII and ADEA definition terms generally are persuasive authority for the other act). Whether the plaintiff was UWA's employee "is both a jurisdictional question and an aspect of the substantive claim in [this] discrimination action." Id. at 259.

The essence of Tatum's position is that UWA and UWWC should be considered a single employer for Title VII and ADEA purposes. The Tenth Circuit has applied the following four factors, sometimes referred to as the integrated enterprise test, to determine whether two entities should be considered as one in employment discrimination actions: (1) interrelated operations; (2) common...