Shaeffer v. Anderson Management Company, Inc.

Filing 26

MEMORANDUM AND ORDER denying 25 Motion for Reconsideration re 23 Order on Motion for Summary Judgment. Signed by Magistrate Judge Kenneth G. Gale on 7/30/14. (df)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
ANN L. SHAEFFER,

)
)
Plaintiff,
)
)
vs.
)
)
ANDERSON MANAGEMENT
)
COMPANY, INC.,
)
)
Defendant.
)
___________________________________ )

Case No. 13-1251-KGG

MEMORANDUM & ORDER DENYING
DEFENDANT’S MOTION FOR RECONSIDERATION
Defendant moves for reconsideration (Doc. 25) of certain aspects of this
Court’s Memorandum and Order (Doc. 23) granting in part and denying in part
Defendant’s Motion for Summary Judgment (Doc. 18). Although the time has not
expired for Plaintiff to respond to Defendant’s motion, a response would not be of
assistance to the Court. As such, Defendant’s motion for reconsideration (Doc.
25) is DENIED.
DISCUSSION
Defendant urges reconsideration “‘to correct manifest errors of fact or law.’”
(Doc. 25, at 2 (citation omitted).) Defendant does not agree with the Court’s
finding of a genuine issue of material fact “as to whether the defendant had actual

knowledge of alleged sexual harassment due to plaintiff’s allegation that she
reported the harassment to her site manager, [who is the] wife of the alleged
harasser.” (Id., at 1.) Defendant argues that the Court erred because
(1) The bare, nonspecific testimony in plaintiff’s
deposition that she ‘told [the site manager]’ is contrary to
her other assertions, including her factual allegations in
the Pretrial Order, and does not create a true fact question
for a jury; and (2) As a matter of law, [the site manager]
was not a management employee whose knowledge
could be imputed to her employer for purposes of
liability for negligence.
(Id.)
Reconsideration on the grounds stated by Plaintiff is appropriate only
“where a court has obviously misapprehended a party's position [on] the facts or
the law, or a court has mistakenly decided issues outside of those the parties
presented for determination.” Anderson v. United Auto Workers, 738 F. Supp.
441, 442 (D. Kan. 1990). “A motion to reconsider is not a second chance for the
losing party to make its strongest case or to dress up arguments that previously
failed,” which is exactly what Defendant is attempting to do with the present
motion. Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan. 1994),
aff’d, 43 F.3d 1484 (Table) (10th Cir. 1994).
To the extent Plaintiff’s testimony regarding her alleged conversation with
the site manager regarding the harassment was “bare [and] nonspecific,” this is
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because Defendant seemingly ignored Plaintiff’s deposition testimony on the
subject and chose not to explore the issue with additional questioning. (See Doc.
19-5, at 13, et seq.) Further, this testimony is not necessarily “contrary to
[Plaintiff’s] other assertions” regarding who she told about the harassment.
Plaintiff’s statement in the Pretrial Order that she told her supervisor, Troy
Hagerman, of the harassment in late May 2012 (Doc. 17, at 3) does not, as
Defendant argues, establish that this was “the first time she reported any sexual
harassment” to anyone. (Doc. 25, at 4.)
Defendant has failed to provide any testimony by Plaintiff affirmatively
stating that she failed to discuss the issue with the site manager or anyone else
before her conversation with Hagerman. (Doc. 17, at 3.) To the contrary, her
deposition testimony indicates that she informed the site manager in February
2012. (Doc. 19-5, at 13-14.) Also, Plaintiff’s statement to the Wichita police
merely establishes that she did not talk to the site manager about the alleged
harassment “on this date” – not that she failed to discuss it with the site manager
before a particular time. (Id., at 12; Doc. 25, at 4.) While Plaintiff’s evidence that
she informed the site manager is not robust, and may be vulnerable to challenges to
her credibility, the Court cannot find that it is insufficient to create a genuine issue
of material fact.
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The Court is equally unpersuaded by Defendant’s assertion that the site
manager did not have sufficient authority to impute knowledge to Defendant for
liability or negligence purposes. (Doc. 25, at 6.) Because Defendant was aware of
Plaintiff’s deposition testimony regarding her conversation with the site manager,
Defendant should have addressed the issue of this conversation – and the site
manager’s authority or lack thereof – in its initial summary judgment brief.
Defendant does not touch the issue until its reply brief and even then merely
focuses on the fact that the site manager was not Plaintiff’s supervisor. Although
Defendant states several times that the site manager was not a “supervisor/
management-level employee,” Defendant provides no substantive evidence
regarding the site manager’s employment duties. The Court is left only with the
information that she was the “site manager,” meaning that she had the authority
and duty to manage the site. Defendant does not in its briefing provide actual
evidence to establish that the site manager is legally unable to impute knowledge to
Defendant because of her general lack of authority within the company.
This is not an instance of the Court having committed a manifest error of
fact or law. Rather, it is an instance of Defendant attempting to have “a second
chance . . . to make its strongest case or to dress up arguments that previously
failed.” Voelkel, 846 F. Supp. at 1483. As such, Defendant’s Motion for
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Reconsideration (Doc. 25) is DENIED.
IT IS THEREFORE ORDERED that the Defendant’s motion (Doc. 25) is
DENIED for the reasons set forth above.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 30th day of July, 2014.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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