Olsen v. Daymark Recovery Services

Filing 29

ORDER denying 18 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Dennis Howell on 01/20/2012. (Pro se litigant served by US Mail.)(thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:10cv289
WENDY OLSEN,

)
)
Plaintiff,
)
)
v.
)
)
DAYMARK RECOVERY SERVICES, )
)
Defendant.
)
___________________________________ )

ORDER

Pending before the Court is Defendant’s Motion for Summary Judgment

[#

18]. Plaintiff, who is proceeding pro se, brought this action asserting claims under
the Age Discrimination in Employment Act (ADEA).1 Specifically, Plaintiff
contends that Defendant created a hostile work environment with age-related
harassment and discriminated against her based on her age causing her to resign
her position. Defendant moved for summary judgment on Plaintiff’s claims, and
the Court entered an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), advising Plaintiff of her obligations to respond to the motion. Upon a
review of the parties’ briefs and the record, the Court DENIES Defendant’s

1

Although the Complaint purported to bring claims pursuant to Title VII of the Civil
Rights Act of 1964, it is clear that Plaintiff intends to asserts claims for age discrimination under
the ADEA.
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motion [# 18].
I.

Analysis

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, a party is
entitled to summary judgment if the movant “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The existence of some alleged factual dispute between
the parties will not defeat a motion for summary. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510 (1986); Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003). Rather, there must be a
genuine issue of material fact. Id. “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Anderson, 477 U.S. at 248, 106 S. Ct. 2510. Moreover, the Court is no
longer obligated to review the entire record at summary judgment, and need only
consider the specific portions of the record cited by the parties. Fed. R. Civ. P.
56(c)(3). Finally, where a party fails to properly support an assertion of fact, the
Court may issue any appropriate order. Fed. R. Civ. P. 56(c)(e).
The Court finds that Defendant has not met its burden of showing that there
is no genuine dispute as to any material fact and that it is entitled to judgment as a

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matter of law because many of the citations to the record contained in Defendant’s
motion do not support Defendant’s factual assertions. See Fed. R. Civ. P. 56(a).
In fact, in some cases the cited portions of the record are unrelated to the factual
assertion. For example, Defendant makes the factual assertion that “Plaintiff was
born March 15, 1955.” (Def.’s Mot. Summ. J. at p. 3 n.4.) The cited portion of
Plaintiff’s deposition, however, states, “your website that’s what you will still see
is what they advertise them as. Maybe that’s changed.” (Pl.’s Dep. 15:19-21.)
Other citations in the brief are equally as unrelated to the factual assertions.
In addition, even when the citations are related to the factual assertion, many
of the citations do not support the factual assertion. Defendant, for example, states
that, “In each position, the Plaintiff had paperwork and performance requirements,
identical to other employees in the same position, though different from other
positions.” (Def.’s Mot. Summ. J. at p. 4.) The cited portion of Plaintiff’s
deposition states, “Yes, we all did.” (Pl.’s Dep. 27:10.) Even if the Court
considers the preceding question - “Do you know whether other Emergency
Services Clinicians also had productivity requirements?” - this cited testimony
only supports the factual assertion that other Emergency Services Clinicians had
productivity requirements. The cited portion of the record does not mention the
nature of the productivity requirements, the other two positions Plaintiff held, says

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nothing about whether Plaintiff’s requirements were identical to the requirements
of other employees in that position, and does not mention whether the requirements
were different from employees in other positions. At most, the cited testimony
supports the factual statement that all Emergency Services Clinicians had some
level of productivity requirements. Although the Court might have overlooked one
or two such citations, a large number of the citations contained in Defendant’s brief
simply do not support the factual assertion as stated by Defendant, and the example
provided by the Court is only one of many improper record citations contained in
Defendant’s brief.
Under Rule 56, it is the Defendant’s burden to initially demonstrate that
there is no genuine dispute as to a material fact by citing to particular parts of the
record. Fed. R. Civ. P. 56(a), (c). By failing to properly support its assertions of
fact, Defendant has not satisfied this burden. Accordingly, the Court DENIES
Defendant’s Motion for Summary Judgment [# 18].
II.

Conclusion

The Court DENIES Defendant’s Motion for Summary Judgment [# 18].

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Signed: January 20, 2012

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