Fuller v. State of Kansas, Department of Children & Families
Filing
164
MEMORANDUM AND ORDER denying as moot 129 Motion for Review; granting 140 Motion for Summary Judgment; denying as moot 146 Motion for Reconsideration for an Extension of Time to Respond to Summary Judgment ; denying 148 Motion to Strike Exhibit Three; denying 159 Motion for Reconsideration. Signed by District Judge Daniel D. Crabtree on 9/20/19. Mailed to pro se party Clara R. Fuller by regular mail. (hw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CLARA R. FULLER,
Plaintiff,
v.
Case No. 16-2415-DDC-JPO
STATE OF KANSAS, DEPARTMENT
OF CHILDREN & FAMILIES,
Defendant.
____________________________________
MEMORANDUM AND ORDER
Pro se plaintiff Clara R. Fuller1 brings this lawsuit against her former employer, the
Kansas Department of Children and Families (“DCF”). Plaintiff alleges that DCF terminated her
employment because of her race, violating Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e–2000e-17.2
This matter comes before the court on several motions filed by each party, including
DCF’s Motion for Summary Judgment (Doc. 140). For reasons explained below, the court
grants DCF’s Motion for Summary Judgment. And, the court dismisses the case.
1
Because plaintiff proceeds pro se, the court construes her pleadings liberally and holds them to a
less stringent standard than those drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). But the court does not assume the role of plaintiff’s advocate. Id. Nor does plaintiff’s pro se
status excuse her from complying with the court’s rules or facing the consequences of noncompliance.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
2
Plaintiff also had asserted claims against DCF under the Age Discrimination in Employment Act
and 42 U.S.C. § 1983. But the court has held that sovereign immunity bars those claims. Doc. 23 at 5–6;
Doc. 70 at 9–10; Doc. 139 at 13 (Pretrial Order ¶ 4); see also Weyerhaeuser Co. v. Brantley, 510 F.3d
1256, 1267 (10th Cir. 2007) (“The subsequent pretrial order supercedes the pleadings.”). Plaintiff’s Title
VII claim is the only claim remaining against DCF in this lawsuit.
I.
DCF’s Motion for Summary Judgment
Before turning to the substance of DCF’s Motion for Summary Judgment against
plaintiff’s Title VII claim, the court considers two motions plaintiff has filed that address the
summary judgment briefing.
A.
Plaintiff’s Motion for Reconsideration
On May 23, 2019, DCF filed its Motion for Summary Judgment. Doc. 140. Our court’s
local rules required plaintiff to file her Memorandum in Opposition to the Motion within 21
days. D. Kan. Rule 6.1(d)(2). On May 28, 2019, plaintiff filed a Motion for Extension of Time.
Doc. 143. Plaintiff’s motion asked the court for an extension of time to respond to DCF’s
Motion for Summary Judgment, but it never specified the amount of time she was seeking.
Nevertheless, the court granted plaintiff’s Motion for Extension of Time and extended her
response time from June 13, 2019 to June 24, 2019. Doc. 145. And, consistent with the court’s
Order, plaintiff filed a Response to DCF’s Motion for Summary Judgment on June 24, 2019.
Doc. 149.
But, before filing that Response, on June 14, 2019, plaintiff filed a “Motion for
Reconsideration for an Extension of Time to Respond to Defendant’s Summary Judgment.”
Doc. 146. This motion is difficult to understand. It appears to respond to the court’s Order
granting plaintiff’s Motion for Extension of Time because it explains why plaintiff neglected to
cite and follow the local rule when she sought an extension of time in her original motion. But
the Motion for Reconsideration doesn’t ask for more time to file a response to DCF’s Motion for
Summary Judgment. And indeed, plaintiff filed her Response on June 24, 2019—the extended
2
due date.3 Thus, the court denies as moot plaintiff’s “Motion for Reconsideration for an
Extension of Time to Respond to Defendant’s Summary Judgment” (Doc. 146).
B.
Plaintiff’s Motion to Strike Exhibit Three
Plaintiff has filed a “Motion to Strike Defendants’ Exhibit Three.” Doc. 148. Plaintiff’s
motion asks the court to strike one of the exhibits attached to DCF’s Motion for Summary
Judgment. And it invokes Fed. R. Civ. P. 12(f). Id. at 1. Rule 12(f) permits the court to “strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f) (emphasis added). Our court has refused to apply Rule 12(f) to
strike a reply and exhibits filed with the reply because this Rule applies only to “pleadings.” Fox
v. Pittsburg State Univ., 258 F. Supp. 3d 1243, 1251 (D. Kan. 2017) (citing Fed. R. Civ. P. 7(a)
(listing documents considered pleadings)); see also Williams v. Alpine Banks of Colo., No. Civ.
A. 05CV02475WDMME, 2006 WL 905333, at *2 (D. Colo. Apr. 7, 2006) (denying a motion to
strike because “[o]nly [the documents listed in Rule 7(a)] constitute pleadings under the Federal
Rules” and “[m]otions, briefs in support of motions, responses to motions, replies to responses to
motions, and other papers are not pleadings under the Federal Rules and cannot be stricken by
the [c]ourt under Rule 12(f)”).
Instead of striking proffered summary judgment evidence, the “better approach is for the
court to consider each [piece of proffered evidence] and, to the extent it may assert a fact which
is not admissible evidence, simply exclude the requested fact from the court’s ultimate findings.”
Murray v. Edwards Cty. Sheriff’s Dep’t, 453 F. Supp. 2d 1280, 1284 (D. Kan. 2006) (denying a
motion to strike an affidavit on summary judgment); see also Jones v. Barnhart, 349 F.3d 1260,
3
Plaintiff also filed a Supplement to her Response. Doc. 152. And a “Second Reply
Memorandum in Support of [Her] Motion to Resist Defendant’s Motion for Summary Judgment.” Doc.
154. Although plaintiff’s filings are not proper under the court’s procedural rules, the court nevertheless
has read and considered her additional filings when deciding DCF’s Motion for Summary Judgment.
3
1270 (10th Cir. 2003) (affirming district court’s evidentiary ruling that denied a motion to strike
an affidavit on summary judgment and, instead, “relied on the declarations to the extent that they
contained relevant and admissible material, ignoring inadmissible and irrelevant statements”);
Nelson v. Allstate Ins. Co., No. 92-2309-JWL, 1993 WL 105120, at *6 (D. Kan. Mar. 8, 1993)
(denying a motion to strike an affidavit and holding that “[i]f the affidavit contains material that
is not admissible or relevant, then it will be ignored by the court.”). The court follows that
approach here and thus denies plaintiff’s Motion to Strike (Doc. 148).
Also, the court rejects the substance of the argument plaintiff advances in her motion—
i.e., that Exhibit Three is inadmissible evidence on summary judgment. Exhibit Three is a chart
summarizing information taken from two of DCF’s employee productivity charts. Plaintiff
asserts that Exhibit Three is inadmissible because DCF didn’t produce the chart during
discovery. She contends “[t]his is the first time Plaintiff has actually see[n] this exhibit in this
format.” Doc. 148 at 1 (emphasis added). With this statement, plaintiff appears to concede that
DCF has produced the information that the chart summarizes, but just in a different format.
Indeed, DCF previously disclosed the underlying productivity charts. DCF attached the
productivity charts as an exhibit to a motion that DCF filed on August 2, 2016—shortly after
plaintiff filed this lawsuit. See Doc. 11-3 (Aff. of Ronald Blaker & Exs. A & B). Also, plaintiff
has stipulated to the admissibility of the underlying productivity charts “for purposes of
summary judgment and trial.” Doc. 139 at 6 (Pretrial Order ¶¶ 2.b.1., 2.b.2.).
DCF argues that Exhibit Three is admissible evidence on summary judgment under Fed.
R. Evid. 1006. Rule 1006 allows a proponent of evidence to “use a summary, chart, or
calculation to prove the content of voluminous writings . . . that cannot be conveniently
examined in court.” The Rule requires the proponent to “make the originals or duplicates
4
available for examination and copying, or both, by other parties at a reasonable time and place.”
Id. “Although the information upon which a Rule 1006 summary is created need not itself be
admitted into evidence, it must still be admissible.” United States v. Channon, 881 F.3d 806,
810 (10th Cir. 2018) (citing United States v. Irvin, 682 F.3d 1254, 1261 (10th Cir. 2012)).
Here, plaintiff never argues that DCF failed to disclose the underlying data to her, or that
the underlying data is inadmissible evidence. To the contrary, the record shows that DCF
previously disclosed the productivity charts and the parties have stipulated to their admissibility.
See Doc. 11-3; Doc. 139 at 6. Thus, the chart summarizing the data from the underlying
productivity charts is admissible under Fed. R. Evid. 1006.
Also, the court rejects plaintiff’s argument that Exhibit Three is an untimely
supplemental disclosure. Fed. R. Civ. P. 26(a)(3)(A)(iii) requires a party to “provide to the other
parties . . . an identification of each document or other exhibit, including summaries of other
evidence—separately identifying those items the party expects to offer [at trial] and those it may
offer if the need arises.” Id. (emphasis added). And Fed. R. Civ. P. 26(a)(3)(B) requires a party
to make such disclosures “at least 30 days before trial.” So, DCF had satisfied Rule 26’s
disclosure requirement for trial, but this motion is lodged at the summary judgment stage.
As the Seventh Circuit has recognized, “Rule 1006 requires only that the summarized
documents be made available to the opposing party at a ‘reasonable time’; it does not say when
the summaries must be made available to the party—for that matter, it nowhere states that the
summaries must be made available to the opposing party.” Fidelity Nat’l Title Ins. Co. v.
Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 752 (7th Cir. 2005) (Posner, J.). But, the court
continued, finding that “[n]o federal rule is needed, however, to empower a district judge to
prevent a party from springing summaries of thousands of documents on the opposing party so
5
late in the day that the party can’t check their accuracy against the summarized documents before
trial.” Id. That’s not what happened here. DCF’s chart summarizes just two pages of employee
productivity reports. Doc. 11-3 at 3–4 (Blaker Aff. Exs. A & B). And plaintiff had plenty of
time to review the summary chart’s accuracy between the time when DCF filed its Motion for
Summary Judgment on May 23, 2019, and when plaintiff filed her Response on June 24, 2019.
Under similar facts, the First Circuit held that a district court did not err when, on
summary judgment, it considered a summary chart of the plaintiff’s “extensive record of work
attendance over her near two-decade period of employment” because Rule 1006 “provides that
only the underlying documents, not the summaries themselves, must be produced to the opposing
party,” and thus the defendant “had no obligation to provide the charts to [plaintiff].” ColonFontanez v. Municipality of San Juan, 660 F.3d 17, 29–32 (1st Cir. 2011). For the same reasons,
the court concludes that Exhibit Three contains admissible evidence on summary judgment.
But, after reviewing the information that Exhibit Three summarizes, the court has noted a
few errors. Compare Doc. 11-3 at 3 (showing that employee F.S. processed 64 applications and
plaintiff processed one application between January 19–22, 2019) with Doc. 141-3 (showing that
employee F.S. processed zero applications and plaintiff processed five applications between
January 19–22, 2019).4 So, when deciding DCF’s summary judgment motion, the court uses the
underlying employee productivity charts (Aff. of Ronald Blaker & Exs. A & B) for the accurate
information, and not the summary chart.
C.
DCF’s Motion for Summary Judgment
Now, the court addresses the substance of DCF’s Motion for Summary Judgment.
4
The court recognizes that the errors in the summary chart actually favor plaintiff. The chart’s
incorrect numbers show that plaintiff was more productive than her actual productivity numbers in the
underlying employee productivity reports.
6
1. Uncontroverted Facts
The following facts are either stipulated facts taken from the Pretrial Order (Doc. 139), or
uncontroverted for purposes of DCF’s summary judgment motion.5
Every year, the State of Kansas administers a Low Income Energy Assistance Program
(“LIEAP”). Doc. 11-4 at 1 (Kimmons Aff. ¶¶ 4–5). And each year, DCF hires temporary
Human Services Assistants to process Applications for benefits under LIEAP. Doc. 139 at 4
(Pretrial Order ¶ 2.a.2.). The program runs every year from mid-January through March.
Kimmons Aff. ¶ 5. But follow-up work for the program may require some temporary employees
to remain employed until May or June. Id.
In 2014, DCF hired plaintiff as a temporary employee and Human Services Assistant for
LIEAP. Pretrial Order ¶ 2.a.3.; Doc. 11-2 at 1–2 (Locke Aff. ¶¶ 4–5). During the 2014 LIEAP,
plaintiff worked less than three weeks processing applications. Pretrial Order ¶ 2.a.4. Later,
DCF transferred plaintiff to the Phone Bank because DCF needed more assistance in that area.
Id. ¶ 6.
5
Plaintiff’s Response attempts to controvert DCF’s “Statement of Material Facts for Which There
Is No Genuine Issue.” Doc. 149-1 at 1–10. Plaintiff has followed the court’s local rule by numbering
“[e]ach fact in dispute . . . by paragraph” and “stat[ing] the number of [DCF’s] fact that is disputed.” D.
Kan. Rule 56.1(b)(1). But, in many instances, plaintiff has failed to “refer with particularity to those
portions of the record upon which the opposing party relies” to controvert DCF’s material facts. Id.
Also, many of plaintiff’s factual statements include improper argument.
Although plaintiff proceeds pro se, her status as a pro se litigant does not relieve her of the
obligation to follow the court’s rules. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (“This
court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other
litigants.” (citations and internal quotation marks omitted)). Also, plaintiff knows about the federal and
local rules governing summary judgment practice because DCF served her with a “Notice to Pro Se
Litigant Who Opposes a Motion for Summary Judgment,” as our local rule, D. Kan. Rule 56.1(f),
requires. Doc. 142. So, when reciting the uncontroverted facts, the court does not accept any of
plaintiff’s factual statements that aren’t supported by proper evidence. Also, the court disregards
plaintiff’s improper argument.
7
In 2016, DCF rehired plaintiff for the 2016 LIEAP. Pretrial Order ¶ 2.a.22. DCF hired
plaintiff as a temporary LIEAP Human Services Assistant in the Economic and Employment
Services (“EES”) department. Pretrial Order ¶ 2.a.28.; Locke Aff. ¶ 3. Shannon Connell and
Lewis Kimsey recommended that DCF rehire plaintiff in 2016. Doc. 11-1 at 1 (Kimsey Aff. ¶
3). Mr. Kimsey has served as the LIEAP Manager since December 2013. Doc. 141-2 at 10
(Defs.’ Resp. to Pl.’s Interrog. No. 18). Although plaintiff was not able to provide a reference
from a prior employer,6 Mr. Kimsey accepted her earlier work experience with the LIEAP in lieu
of her providing a reference. Kimsey Aff. ¶ 4.
All LIEAP Human Services Assistants are hired as a “999 temporary employee,”
meaning that they cannot work more than 999 hours within one year of their hire date. Locke
Aff. ¶ 5. For the 2016 LIEAP, only four temporary employees were new hires. Kimsey Aff. ¶
13. The initials of the four new hires are N.D., B.B., P.L., and S.B. Id. The rest of the
temporary employees were re-hires. Id. at ¶ 12. All employees in the 2016 LIEAP received the
same training. Kimsey Aff. ¶ 20; Doc. 11-5 at 2 (Henderson Aff. ¶ 11). Plaintiff received
training for the LIEAP during her first employment with DCF in 2014, and again during her
second employment in 2016. Doc. 141-1 at 4 (Pl.’s Resp. to Defs.’ Req. for Admis. No. 14).
6
Plaintiff asserts that, in fact, she supplied a reference. Doc. 149-1 at 3. For support, she relies on
an unauthenticated email sent “in response to an e-mail [plaintiff] sent to the General Dynamics corporate
office.” Doc. 149-2 at 2. Even if the court could consider this evidence as admissible on summary
judgment, the email doesn’t provide plaintiff an employment reference. It merely provides contact
information for inquires seeking employment references. Id. Also, with her summary judgment exhibits,
plaintiff includes an email from DCF advising plaintiff that it has not received a manager’s reference for
her from any previous employers due to company policies and that DCF requires a reference that can
speak to her work habits to continue with the recruitment process. Doc. 149-2 at 3. In sum, plaintiff has
failed to controvert DCF’s factual statement that plaintiff was unable to provide a reference from a prior
employer but that Mr. Kimsey accepted her earlier work experience with the LIEAP in lieu of providing a
reference.
8
Stephanie Henderson, a black female, was hired by DCF as a temporary employee to
serve as Human Services Assistant/Site Manager for the 2016 LIEAP. Pretrial Order ¶¶ 2.a.11–
12.; Henderson Aff. ¶¶ 1, 5; Locke Aff. ¶ 7. Like plaintiff, Ms. Henderson was a rehire for
LIEAP. Pretrial Order ¶ 2.a.27.; Henderson Aff. ¶ 7. And, as a Site Manager, Ms. Henderson
knew what appropriate production levels were for employees, especially for employees who had
worked previously for LIEAP. Henderson Aff. ¶ 7.
In 2016, DCF did not impose daily or weekly quotas on each LIEAP employee or for the
program as a whole, although DCF had used a quota system in past years. Kimsey Aff. ¶ 18.
But DCF did collect processing and registration data for each LIEAP employee, and it prepared
weekly productivity reports for those employees. Doc. 11-3 at 1 (Blaker Aff. ¶ 4). The reports
show both the number of processed applications and the number of pending applications for each
day and the total for the week for each LIEAP employee. Kimsey Aff. ¶ 6. Human Services
Assistant Ronald Blaker prepared the weekly productivity reports and submitted them to LIEAP
Manager Lewis Kimsey. Blaker Aff. ¶¶ 1, 4; Kimsey Aff. ¶ 11. Mr. Blaker began the process of
tracking employee productivity once DCF began taking applications and after training had
concluded.7 Doc. 141-2 at 8 (Defs.’ Resp. to Pl.’s Interrog. No. 14).
In 2016, five of the 17 LIEAP employees were assigned other duties in addition to their
responsibilities to process and register applications. Kimsey Aff. ¶¶ 6, 8–10; Henderson Aff. ¶ 9.
For example, as discussed above, Stephanie Henderson performed managerial duties in her role
as Site Manager. Kimsey Aff. ¶ 8; Henderson Aff. ¶¶ 8–9. Employee M.H. was a full-time DCF
employee temporarily assigned to assist with LIEAP, serving primarily as the filing clerk for the
7
The parties stipulated to the fact that “[a]ll of the temporary Human Services Assistants spent the
first two weeks in training during the 2016 LIEAP program in Kansas City, Kansas.” Pretrial Order ¶
2.a.30. And, the parties stipulated that plaintiff’s hire date was January 3, 2016. Id. ¶ 28.
9
program. Kimsey Aff. ¶ 14. Employee E.D. was assigned the mail room and filing as his
primary responsibilities. Id. ¶ 15. E.D. did not perform any processing and assisted with
registrations only as time permitted. Id. Employee L.S. was the dedicated employee assigned to
handle applications received by facsimile or online, which is a more time-consuming process.
Doc. 141-2 at 9–10 (Defs.’ Resp. to Pl.’s Interrog. No. 17). And, as discussed, Ronald Blaker
was responsible for working with IT to generate production reports. Kimsey Aff. ¶ 10;
Henderson Aff. ¶ 9. Also, Mr. Blaker was the “lead worker” responsible for training, processing
tough cases, and specialty work. Kimsey Aff. ¶ 9; Blaker Aff. ¶ 5. His primary responsibilities
were not processing and registration. Kimsey Aff. ¶ 9.
The employee productivity charts for January 19 to February 12, 2016 show that—among
the 12 LIEAP employees who did not have other job responsibilities—plaintiff had the second
lowest productivity numbers for both processed and registered applications. Blaker Aff. Exs. A
& B. Employee C.D. registered two fewer applications than plaintiff. Id. But he processed a
total of 570 applications compared to plaintiff’s 72 processed applications. Id. C.D.’s combined
number of processed and registered applications was 828 applications compared to plaintiff’s
total of 332 applications. Id. The employee with the lowest number of processed applications
was C.T. Id. DCF terminated C.T.’s employment on February 12, 2016—the same day DCF
terminated plaintiff’s employment. Doc. 149-2 at 19 (Thomas Aff. ¶ 4); Pretrial Order ¶ 2.a.29.
Of the group of the 12 LIEAP employees, the two employees with the lowest total number of
registered and processed applications were plaintiff and C.T. Blaker Aff. Exs. A & B.
On February 12, 2016, Site Manager Stephanie Henderson recommended to her direct
supervisor, LIEAP Manager Lewis Kimsey, that DCF terminate plaintiff’s employment based on
her substandard performance. Henderson Aff. ¶ 3; Kimsey Aff. ¶ 5. Ms. Henderson made her
10
recommendation based on her personal observation of plaintiff’s work performance as well as
her charted performance in the employee productivity reports. Henderson Aff. ¶ 4. Based on the
productivity reports, LIEAP Manager Lewis Kimsey also concluded that plaintiff was not
performing at an acceptable level. Kimsey Aff. ¶¶ 5–6. And, he recommended to Sandra
Kimmons (Director of EES) that DCF terminate plaintiff’s employment for “sub-standard job
performance as charted and evidenced by [the employee productivity reports].” Id. ¶ 5.
On February 12, 2016, DCF terminated plaintiff’s employment for substandard
performance. Kimmons Aff. ¶ 7. Ms. Kimmons signed the termination letter plaintiff received
on February 12, 2016. Pretrial Order ¶ 2.a.29.; Kimmons Aff. ¶ 8 & Ex. 1. On the day of
plaintiff’s termination, Ms. Kimmons had no specific recollection of plaintiff although she may
have interviewed plaintiff in the past. Kimmons Aff. ¶ 9.
Ms. Kimmons, Mr. Kimsey, and Ms. Henderson contend that race was not a factor in the
decision to terminate plaintiff’s employment. Kimmons Aff. ¶¶ 10, 12; Kimsey Aff. ¶ 21;
Henderson Aff. ¶ 6. Of the 17 employees hired for the 2016 LIEAP in the Kansas City region,
six of those employees were black females, including Site Manager Stephanie Henderson, who
later recommended terminating plaintiff’s employment. Kimsey Aff. ¶ 17; Henderson Aff. ¶¶ 3–
5. DCF did not hire anyone to replace plaintiff after her termination. Kimsey Aff. ¶ 16;
Henderson Aff. ¶ 10.
Plaintiff believes she “was terminated because [Stephanie Henderson] felt her position
was in jeopardy due to the fact [plaintiff] possess[es] a Master’s Degree in Public Administration
with a major in Administration and Organization.” Doc. 149-2 at 4 (Fuller Aff. ¶ 1). Also,
plaintiff asserts that Ms. Henderson “perceived [plaintiff] as a threat to her temporary Site
11
Manager/Human Services Assistant position because her predecessor was a permanent Site
Manager, Veronica Knight.” Id. ¶ 5.
2. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that “no genuine
dispute [about] any material fact” exists and that it “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). When applying this standard, the court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). A disputed “issue of fact is ‘genuine’ ‘if the evidence is such
that a reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). And an “issue of fact is ‘material’
‘if under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “‘both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To carry this burden, the
moving party “‘need not negate the non-movant’s claim, but need only point to an absence of
evidence to support the non-movant’s claim.’” Id. (quoting Sigmon v. CommunityCare HMO,
Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).
If the moving party meets its initial burden, the non-moving party “‘may not rest upon its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.’” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
12
Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
671 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
“Unsubstantiated allegations carry no probative weight in summary judgment proceedings.”
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Phillips v. Calhoun,
956 F.2d 949, 951 n.3 (10th Cir. 1992)). To survive summary judgment, the non-moving party’s
“evidence, including testimony, must be based on more than mere speculation, conjecture, or
surmise.” Id. (citing Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999)).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
To the contrary, it is an important procedure “designed ‘to secure the just, speedy and
inexpensive determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).8
8
When reciting the legal standard governing summary judgment, plaintiff asserts that “[s]ummary
judgments ‘should seldom be used in employment discrimination cases.’” Doc. 149-1 at 11 (quoting
O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir. 1999)). O’Shea was a sexual
harassment case alleging hostile work environment. Id. at 1096. There, our Circuit noted, in the context
of sexual harassment claims, that “the severity and pervasiveness evaluation is particularly unsuited for
summary judgment because it is quintessentially a question of fact.” Id. at 1098 (citations and internal
quotation marks omitted). And, using a cf. signal, the Circuit cited an Eighth Circuit case for a different
but somewhat analogous proposition—i.e., that “‘summary judgment should seldom be used in
employment discrimination cases.’” Id. (quoting Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir.
1997)). Since then, the Eighth Circuit sitting en banc has overruled Smith and other cases “asserting a
different standard of review for summary judgment in employment discrimination cases” because such a
standard is “contrary to Supreme Court precedent.” Torgerson v. City of Rochester, 643 F.3d 1031, 1043
(8th Cir. 2011). In Torgerson, the Eighth Circuit held: “There is no ‘discrimination case exception’ to
the application of summary judgment, which is a useful pretrial tool to determine whether any case,
including one alleging discrimination, merits a trial.” Id. For obvious reasons, the court declines
plaintiff’s invitation to apply the standard she cites from an overruled Eighth Circuit case.
Also, plaintiff asserts that “[b]ecause discrimination claims often turn on the employer’s intent;
courts ordinarily consider summary judgment inappropriate to settle an issue like intent.” Doc. 149-1 at
11 (citing Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 530 (10th Cir. 1994)). But, Cone held that
“[a]lthough summary judgment is not ordinarily appropriate for settling issues of intent or motivation . . .
all of [plaintiff’s] evidence together is insufficient to raise doubts about [defendant’s] motivation.” Id. at
530. So, in that case, the Circuit affirmed summary judgment against plaintiff’s employment
discrimination claim. Id. at 530, 533. Cone thus does not preclude the court from granting summary
judgment in an employment discrimination case. To the contrary, Cone allows summary judgment when
the factual record presents no triable issues about an employer’s intent.
13
3. Analysis
DCF seeks summary judgment against plaintiff’s Title VII claim because, DCF contends,
the summary judgment facts, viewed in the light most favorable to plaintiff, present no triable
issue whether DCF terminated plaintiff’s employment based on her race.
The court analyzes plaintiff’s Title VII claim under the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Khalik v. United Air Lines, 671
F.3d 1188, 1192 (10th Cir. 2012) (applying McDonnell Douglas to Title VII claim). The
McDonnell Douglas framework involves a three-step analysis. Garrett v. Hewlett-Packard Co.,
305 F.3d 1210, 1216 (10th Cir. 2002).
First, a plaintiff must prove a prima facie case of discrimination. Id.; see also Khalik, 671
F.3d at 1192. A prima facie case of discrimination requires plaintiff to demonstrate that: “(1)
she is a member of a protected class, (2) she suffered an adverse employment action, (3) she
qualified for the position at issue, and (4) she was treated less favorably than others not in the
protected class.” Khalik, 671 F.3d at 1192 (citing Sanchez v. Denver Pub. Schs., 164 F.3d 527,
531 (10th Cir. 1998)); see also Plotke v. White, 405 F.3d 1092, 1100 (10th Cir. 2005) (explaining
that “the fourth element of a prima facie case is a flexible one that can be satisfied differently in
varying scenarios” and “[t]he critical prima facie inquiry in all cases is whether the plaintiff has
demonstrated that the adverse employment action occurred under circumstances which give rise
to an inference of unlawful discrimination” (internal citations and quotation marks omitted)).
Next, if plaintiff meets her prima facie burden, then the burden shifts to defendant “to
produce a legitimate, non-discriminatory reason for the adverse employment action.” Khalik,
671 F.3d at 1192 (citing Garrett, 305 F.3d at 1216). And, last, if defendant produces such a
reason, the burden then shifts back to plaintiff to show that “plaintiff’s protected status was a
14
determinative factor in the employment decision or that the employer’s explanation is pretext.”
Id. (citing Garrett, 305 F.3d at 1216).
a. Prime Face Case
Here, DCF doesn’t address the first step in the McDonnell Douglas test—i.e., whether
plaintiff has satisfied her burden to establish a prima facie case of discrimination. Thus, the
court will assume, without deciding, that plaintiff has presented a triable issue on the first step of
the McDonnell Douglas test.
b. Legitimate, Non-Discriminatory Reason
Turning to the second step of McDonnell Douglas, DCF asserts that the summary
judgment facts present no genuine issue whether DCF terminated plaintiff’s employment based
on the legitimate, non-discriminatory reason of substandard performance. The court agrees. The
employee productivity charts establish that plaintiff was one of the two least productive
employees during the 2016 LIEAP. The employee productivity charts show the number of
applications that each of the 17 LIEAP employees processed and registered between January 19
and February 12, 2016. Plaintiff has not controverted the fact that five of the 17 LIEAP
employees were assigned other duties in addition to their responsibilities of processing and
registering applications. So, as DCF explains, the productivity numbers for those five employees
are not comparable to the other 12 LIEAP employees because the five employees spent their
time performing managerial, filing, training, or other responsibilities in addition to processing
and registering applications.
After removing these five employees from the productivity charts and considering only
the remaining 12 LIEAP employees, the uncontroverted facts establish plaintiff had the second
lowest productivity for the total number of registered and processed applications. The employee
15
with the lowest total number was C.T.—whom DCF also terminated from her employment on
February 12, 2016, the same day it terminated plaintiff.
c. Pretext
Finally, at the last step of the McDonnell Douglas test, the burden shifts back to plaintiff,
requiring her to establish a genuine issue for trial whether DCF’s articulated reason for her
employment termination was pretext for discrimination. “A plaintiff may show pretext by
demonstrating the proffered reason is factually false, or that discrimination was a primary factor
in the employer’s decision.” DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir.
2017) (citations and internal quotation marks omitted). A plaintiff can satisfy this burden “‘by
revealing weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the
employer’s proffered reason, such that a reasonable fact finder could deem the employer’s reason
unworthy of credence.’” Id. (quoting Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013)).
Here, plaintiff asserts she can establish pretext in several ways.
First, plaintiff contends that her work performance was not substandard. But plaintiff
cannot show pretext by asserting her subjective belief that she performed successfully. The
Tenth Circuit has cautioned courts that they “may not second guess the business judgment of the
employer.” Id. (citing Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1307 (10th Cir. 2017)); see
also Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005) (“The courts may
not act as a super personnel department that second guesses employers’ business judgments.”
(citation and internal quotation marks omitted)). “‘In determining whether the proffered reason
for a decision was pretextual, [the court] examine[s] the facts as they appear to the person
making the decision,’ and ‘do[es] not look to the plaintiff’s subjective evaluation of the
situation.’” Id. (quoting EEOC v. C.R. England, Inc., 644 F.3d 1028, 1044 (10th Cir. 2011)).
16
“Instead of asking whether the employer’s reasons ‘were wise, fair or correct,’ the relevant
inquiry is whether the employer ‘honestly believed those reasons and acted in good faith upon
those beliefs.’” Id. (quoting Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1170
(10th Cir. 2007)).
Here, the undisputed summary judgment facts establish that Site Manager Stephanie
Henderson recommended to LIEAP Manager Lewis Kimsey that DCF terminate plaintiff’s
employment based on her substandard performance. Ms. Henderson recommended plaintiff’s
termination based on her personal observation of plaintiff’s work performance and plaintiff’s low
productivity numbers, as documented by the employee productivity reports. Mr. Kimsey agreed
that the productivity reports showed that plaintiff was performing at a substandard level. So, he
recommended to EES Director Sandra Kimmons that DCF terminate plaintiff’s employment for
substandard job performance. In sum, the undisputed facts establish that DCF based its
termination decision on plaintiff’s poor performance as evidenced and documented by the
productivity reports.
Trying to create a question of fact, plaintiff makes several conclusory assertions to
discredit the reliability of the employee productivity reports used by DCF to make the
termination decision. Plaintiff contends that, like the five employees with other responsibilities,
she also had other responsibilities such as collecting, delivering, and sorting mail in the mail
room. Doc. 149-1 at 12. But plaintiff cites no summary judgment evidence to support this
purported fact, and the court has not found any evidence in the summary judgment record to
support plaintiff’s assertion. Also, plaintiff asserts, DCF assigned one-page applications to new
hires while assigning seven-page applications to rehires, like plaintiff. Doc. 149-1 at 3–4, 12–13.
Plaintiff contends that an employee can register and process one-page applications more quickly
17
than a longer application. See id. at 4 (asserting that it takes an employee “usually less than ten
minutes” to process a one-page application and that “is the only reason C.D. could have
processed more applications than any new hires or rehires.”). But again, plaintiff provides no
summary judgment evidence to support this factual assertion. Plaintiff’s assertions that her work
performance was not poor rely solely on her subjective beliefs. And, plaintiff’s subjective
evaluation of her work performance does not establish pretext. DePaula, 859 F.3d at 970 (“In
determining whether the proffered reason for a decision was pretextual, [the court] . . . do[es] not
look to the plaintiff’s subjective evaluation of the situation.” (citation and internal quotation
marks omitted)).
Plaintiff also takes issue with DCF’s assertion that it began tracking employee
productivity once DCF began taking applications and after training concluded. The parties
stipulated in the Pretrial Order that the 2016 LIEAP employees spent the first two weeks of their
employment in training. Pretrial Order ¶ 2.a.30. And, the parties stipulated, DCF hired plaintiff
on January 3, 2019. Id. ¶ 28. The productivity reports begin tracking employees’ work on
January 19, 2019. Blaker Aff. Exs. A & B. So, the beginning date of the productivity reports is
consistent with the parties’ stipulation that DCF began tracking productivity after the two-week
training ended.
But plaintiff asserts that training did not end until February 1, 2019. Indeed, Site
Manager Stephanie Henderson asserts in her Affidavit that training ended on that date. Doc. 115 at 2 (Henderson Aff. ¶ 12). This discrepancy, however, is not a material disputed issue of fact
that precludes summary judgment against plaintiff’s Title VII claim. The undisputed facts
establish that plaintiff was the second least productive employee during the time DCF tracked
performance of all LIEAP employees. Even if training was not yet completed when tracking
18
started, all employees had received the same training when DCF started tracking their
productivity. Kimsey Aff. ¶ 20; Henderson Aff. ¶¶ 11–12. Also, plaintiff already had received
training in 2014, during her previous employment with DCF. So, her 2016 training represented
the second time she received training in the LIEAP program. This undisputed fact means that
plaintiff had received more training than the new employees in 2016 when DCF began tracking
their work.
Also, if one disregards the productivity numbers before February 1, 2019, and considers
only the productivity numbers after that date, the productivity reports show that plaintiff still was
one of the two least productive employees for the number of total processed applications after
February 1.9 Plaintiff asserts that evaluating the employees’ work performance for just “nine
days after the end of training classes is not sufficient time to evaluate an employee’s
performance.” Doc. 154 at 2. But plaintiff offers no summary judgment facts to support this
assertion. And, even if she had, it’s not the court’s job to “second-guess the business judgment
of the employer.” DePaula, 859 F.3d at 970 (citation and internal quotation marks omitted).
For all these reasons, the summary judgment facts do not present a triable issue whether
plaintiff’s work performance was substandard.
Second, plaintiff asserts that DCF’s reason for terminating her employment is pretextual
because DCF never imposed quotas on its LIEAP employees. DCF concedes that it never
imposed any quotas. But, it’s undisputed, DCF did track employee productivity using the
productivity reports. Plaintiff appears to confuse these two concepts as one. But, imposing a
quota on an employee differs from evaluating the employee’s work performance based on
9
The productivity reports for February 1 through 12, 2019 show that plaintiff had 53 processed
applications. Employee C.T. had 11 processed applications. All the other 10 LIEAP employees had more
processed applications during this time than both plaintiff and C.T.—the two employees who DCF
terminated on February 12, 2019.
19
productivity. After making a productivity evaluation, if the employer terminates an employee
for low productivity, that does not mean the employer has imposed a quota.
Also, as DCF explains, the law does not require an employer to base an employment
decision on a written policy—such as a quota. As the Tenth Circuit has explained, “an otherwise
reasonable justification for a business decision” doesn’t “somehow lose[ ] its legitimacy simply
because it reflects an exercise of managerial judgment rather than a ministerial execution of
written policy.” Medlock v. United Parcel Serv. Inc., 608 F.3d 1185, 1192 (10th Cir. 2010). To
the contrary, courts have decided “countless employment discrimination cases . . . on the basis of
legitimate business justifications without any reference to formal policies necessarily
legitimizing those justifications.” Id. at 1193. To hold otherwise “would render suspect
innumerable decisions required in the practical operation of the workplace, leaving the
management of businesses open to just the sort of second-guessing the case law consistently
admonishes against.” Id. So here, to the extent plaintiff asks the court to find pretext because
DCF terminated plaintiff’s employment based on low productivity while not imposing any
production quotas, the court declines to do so. “The law does not permit, much less require”
such a finding “simply because [the business] judgment had not been preordained by a written
policy.” Id.
Third, plaintiff asserts her own beliefs about why DCF terminated her employment. But
plaintiff cites no admissible summary judgment evidence to support her assertions. And plaintiff
can’t establish pretext based on mere speculation. See Lounds v. Lincare, Inc., 812 F.3d 1208,
1237–38 (10th Cir. 2015) (affirming summary judgment against plaintiff’s Title VII retaliation
claim because plaintiff “merely advanced speculative theories” that failed to demonstrate
pretext); see also Webster v. Shulkin, 707 F. App’x 535, 542 (10th Cir. 2017) (holding that
20
plaintiff’s “claims don’t rise above the level of speculation, which is insufficient to demonstrate
pretext”).
Also, plaintiff has made speculative assertions about the reason for her termination that
flatly contradict her race discrimination claim. By affidavit, plaintiff asserts that she “was
terminated because [Stephanie Henderson] felt her position was in jeopardy due to the fact
[plaintiff] possess[es] a Master’s Degree in Public Administration with a major in Administration
and Organization.” Doc. 149-2 at 4 (Fuller Aff. ¶ 1). Also, plaintiff contends, Ms. Henderson
considered plaintiff a threat to her Site Manager position. Id. Even if the court accepts as true
plaintiff’s assertion that DCF terminated her employment because Ms. Henderson considered
plaintiff a threat to her job, this reason won’t support a finding of pretext or amount to illegal
race discrimination under Title VII.
Fourth, plaintiff claims that DCF offered inconsistent reasons for her termination. Doc.
152 at 2. The summary judgment facts won’t support this assertion. Plaintiff’s Affidavit asserts
that Stephanie Henderson escorted plaintiff to Human Resources on the day of plaintiff’s
termination. Doc. 149-2 at 6 (Fuller Aff. ¶ 13). And, plaintiff contends, Ms. Henderson told
plaintiff that she didn’t know why Human Resources had summoned plaintiff for a meeting. Id.
Accepting plaintiff’s assertions a true, DCF never provided inconsistent reasons for the
termination. Ms. Henderson merely told plaintiff that she didn’t know the reason for the meeting
with Human Resources. She never told plaintiff that DCF was terminating her employment,
much less a reason for that decision that differs from DCF’s stated reason for the termination.
Instead, the summary judgment facts establish that DCF has given only one reason for plaintiff’s
termination: poor work performance.
21
Finally, DCF asserts that the summary judgment facts support an inference that DCF’s
proffered reason for the termination is not pretextual. DCF asserts that the “same actor”
inference applies here because Mr. Kimsey was the “same actor” involved in plaintiff’s hiring
and firing within a two-month period.
The “same actor inference” is premised on the idea that it “makes little sense to deduce”
that an individual would hire an employee, being fully aware of her race, and then fire that same
employee a short time later based on the employee’s race. Antonio v. Sygma Network, Inc., 458
F.3d 1177, 1183 (10th Cir. 2006). The Tenth Circuit held in Antonio that “in cases where the
employee was hired and fired by the same person within a relatively short time span, there is a
strong inference that the employer’s stated reason for acting against the employee is not
pretextual.” Id. (citation and internal quotation marks omitted).
Here, the undisputed facts establish that LIEAP Manager Lewis Kimsey was one of two
people who recommended that DCF rehire plaintiff in 2016. Also, during the hiring process, Mr.
Kimsey allowed plaintiff to rely on her 2014 work performance with LIEAP in lieu of providing
an employer reference. Then, less than two months later, Mr. Kimsey was one of two people
who recommended that DCF terminate plaintiff’s employment based on substandard work
performance. Thus, DCF contends, the same actor inference should apply here. But, our Circuit
has “yet to decide whether the same-actor inference applies when a person who was instrumental
in the hiring and termination of an employee . . . is not necessarily the sole decisionmaker.”
Matthews v. Euronet Worldwide, Inc., 271 F. App’x 770, 773 n.2 (10th Cir. 2008) (citing
DeJarnette v. Corning Inc., 133 F.3d 293, 298 (4th Cir. 1998) (applying the same-actor inference
where a supervisor knew plaintiff was pregnant when she was hired and the supervisor was also
one of three people involved in the decision to discharge her)). Here, the undisputed facts don’t
22
establish that Mr. Kimsey was the sole decisionmaker in plaintiff’s hiring and firing. So, the
court declines to apply the same actor inference.
In any event, the court need not apply the inference to conclude that summary judgment
is warranted. Even without the same actor inference, plaintiff has failed to come forward with
disputed facts sufficient to present a triable issue whether DCF’s proffered reason for plaintiff’s
termination is pretext. See, e.g., Braun v. St. Pius X Parish, 509 F. App’x 750, 753 (10th Cir.
2013) (affirming summary judgment because plaintiff had failed to establish pretext “whether or
not [the Circuit] appl[ied] the ‘same actor’ inference”).
In sum, the summary judgment facts, viewed in plaintiff’s favor, present no triable issue
whether DCF’s legitimate, non-discriminatory reason for plaintiff’s termination is unworthy of
belief. The court thus grants summary judgment against plaintiff’s Title VII claim.10
II.
Plaintiff’s Motion for Reconsideration of the Court’s July 24, 2019 Order
Next, the court addresses plaintiff’s “Motion for Reconsideration Granting Defendants’
Dismissal.” Doc. 159. On July 24, 2019, the court granted defendants Stephanie Henderson,
Sandra Kimmons, Lewis Kimsey, and Lisa Locke’s (“the individual defendants”) Motion to
Dismiss. Doc. 153. The court held that plaintiff’s § 1983 claims against the individual
defendants failed to state a claim for relief because plaintiff never identified the substantive
federal right that the individual defendants allegedly had violated. Id. at 5. So, the court
dismissed the individual defendants from the case. Id.
Plaintiff challenges the court’s ruling with her Motion for Reconsideration. Our court
treats motions that ask it to revise dispositive orders decided before the court has entered
10
DCF also moves for summary judgment against plaintiff’s punitive damages claim under Title
VII. Doc. 141 at 14. Because the court grants summary judgment against plaintiff’s Title VII claim, the
court need not decide whether DCF is entitled to summary judgment against plaintiff’s punitive damages
claim.
23
judgment as motions for reconsideration under D. Kan. Rule 7.3. Ferluga v. Eickoff, 236 F.R.D.
546, 549 (D. Kan. 2006) (treating a motion to alter or amend a dispositive but non-final order as
a motion for reconsideration under D. Kan. Rule 7.3). D. Kan. Rule 7.3 requires a movant to file
a motion seeking reconsideration within 14 days after the order is filed. D. Kan. Rule 7.3(b).
Plaintiff filed her Motion for Reconsideration on August 13, 2019—more than 14 days after the
court entered its July 24, 2019 Order. So, plaintiff’s request for reconsideration is untimely
under the court’s local rule.
Also, D. Kan. Rule 7.3 requires a movant to base a motion for reconsideration on:
“(1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the
need to correct clear error to prevent manifest injustice.” D. Kan. Rule 7.3(b); see also Ferluga,
236 F.R.D. at 549 (applying D. Kan. Rule 7.3(b) to a dispositive order and noting that the rule’s
requirements “are essentially identical” to Fed. R. Civ. P. 59(e)). So, “a motion for
reconsideration is appropriate [only] where the court has misapprehended the facts, a party’s
position, or the controlling law.” Ferluga, 236 F.R.D. at 549 (citing Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). Such a motion “is not [an] appropriate [device] to
revisit issues already addressed or advance arguments that could have been raised in prior
briefing.” Id. (citing Servants of Paraclete, 204 F.3d at 1012).
Plaintiff satisfies none of the three prerequisites for the court to reconsider its Order
dismissing the individual defendants. Plaintiff never identifies any intervening change in
controlling law. Plaintiff never asserts that new evidence is available now to oppose the
individual defendants’ dismissal arguments. And plaintiff never argues there is a need to correct
clear error or prevent manifest injustice that requires the court to reconsider its earlier ruling.
Instead, plaintiff’s Motion for Reconsideration argues the merits of her Title VII claim against
24
DCF—i.e., that DCF terminated her employment because of her race. These arguments are not a
proper reason for the court to reconsider its July 24, 2019 Order—an Order that concluded
plaintiff had failed to state a plausible § 1983 claim against the individual defendants.
For all these reasons, plaintiff has failed to show that reconsideration of the court’s July
24, 2019 Order is timely or warranted under D. Kan. Rule 7.3. The court thus declines to
reconsider its July 24, 2019 Order. And, it denies plaintiff’s motion (Doc. 159).
III.
DCF’s Motion to Review Magistrate Order of April 9, 2019
Finally, the court considers DCF’s Motion to Review Magistrate Order of April 9, 2019.
Doc. 129. On April 9, 2019, Magistrate Judge James P. O’Hara issued an Order granting
plaintiff’s Motion to Compel DCF to provide the names and addresses of each person DCF
employed during the 2016 LIEAP. Doc. 128. In her Motion to Compel, plaintiff explained that
she required the information because her coworkers had information about what supervisors told
employees during their morning meetings about their job responsibilities, “including whether
they were required to process a set minimum number of LIEAP application per day.” Id. at 2.
Judge O’Hara concluded that the employee contact information was relevant to plaintiff’s claims
and that the Kansas Administrative Regulations did not protect the contact information from
disclosure. Id. at 3–4. Thus, Judge O’Hara ordered DCF to provide the contact information to
plaintiff by April 19, 2019. Id. at 4.
DCF filed an Objection to Judge O’Hara’s Order under Fed. R. Civ. P. 72 and D. Kan.
Rule 72.1.4. Doc. 129. But, DCF also complied with its obligation to provide the contact
information to plaintiff by April 19, 2019, as Judge O’Hara had ordered. See Doc. 133
(Certificate of Service showing service of DCF’s Supplemental Response to Plaintiff’s
Interrogatories), Doc. 137 at 1 (representing that DCF complied with Judge O’Hara’s Order
25
because DCF provided to plaintiff by email and U.S. mail a supplemental response to discovery
with the last known addresses of plaintiff’s coworkers in the 2016 LIEAP), Doc. 138 (Judge
O’Hara’s Order denying plaintiff’s “Motion to Advise” as moot because DCF had provided the
supplemental discovery as Judge O’Hara had ordered).
DCF objects to Judge O’Hara’s Order because, DCF argues, it allows plaintiff to conduct
discovery after the discovery deadline has ended, and it deprives DCF from discovering
information about what previously undisclosed witnesses may know about plaintiff’s allegations.
Thus, DCF asks the court to overturn Judge O’Hara’s Order and deny plaintiff’s Motion to
Compel. Alternatively, DCF asks the court to: (1) reopen discovery, (2) compel plaintiff to
respond to DCF’s interrogatory that asks plaintiff to identify each person she contends has
knowledge about her race discrimination claim, and (3) allow the parties to conduct an additional
three months of discovery so that DCF can depose any new witnesses plaintiff identifies. Doc.
129 at 3.
Plaintiff never has responded to DCF’s Motion to Review. For this reason, the court
could grant DCF’s Motion to Review as unopposed. See D. Kan. Rule 7.4(b) (“If a responsive
brief or memorandum is not filed within the D. Kan. Rule 6.1(d) time requirements, the court
will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant
the motion without further notice.”). But, because the court has granted DCF’s summary
judgment motion against plaintiff’s Title VII claim, the Motion to Review Judge O’Hara’s April
9, 2019 Order is moot. Judge O’Hara’s Order has not prejudiced DCF by allowing plaintiff to
secure additional discovery after the discovery deadline. The court thus denies as moot the
Motion to Review (Doc. 129).
26
IV.
Conclusion
For the reasons explained, the court grants DCF’s Motion for Summary Judgment. And
the court dismisses this case. Also, the court rules the parties’ other pending motions as set forth
above.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant Kansas
Department of Children and Families’s Motion to Review Magistrate Order of April 9, 2019
(Doc. 129) is denied as moot.
IT IS FURTHER ORDERED THAT defendant Kansas Department of Children and
Families’s Motion for Summary Judgment (Doc. 140) is granted.
IT IS FURTHER ORDERED THAT plaintiff Clara R. Fuller’s Motion for
Reconsideration for an Extension of Time to Respond to Summary Judgment (Doc. 146) is
denied as moot.
IT IS FURTHER ORDERED THAT plaintiff Clara R. Fuller’s Motion to Strike
Exhibit Three (Doc. 148) is denied.
IT IS FURTHER ORDERED THAT plaintiff Clara R. Fuller’s Motion for
Reconsideration (Doc. 159) of the court’s July 24, 2019 Order dismissing the individual
defendants is denied.
IT IS SO ORDERED.
Dated this 20th day of September, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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