MEMORANDUM AND ORDER
J. THOMAS MARTEN, JUDGE
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The court excludes from these findings those assertions of the parties which are not tied to any evidentiary support, or which are grounded on speculation or hearsay.
The court notes that, in addition to its motion for summary judgment, QC also moves to strike large portions of Llamas’s affidavit, largely on the grounds that it directly contradicts her earlier deposition testimony.
In “unusual” cases, affidavit testimony may be disregarded if, rather than resolving ambiguity or explaining confusion in earlier deposition testimony, it is offered in direct contradiction to such testimony. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986).
In resolving such an issue, the court looks to whether “(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts to explain.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir.2001) (quotation omitted).
The court denies the Motion to Strike. First, such motions are not appropriately advanced in the context of summary judgment motions and their supporting pleadings. See In re Cessna 208 Series Aircraft Products Liability Litig’n, 2007 WL 2253479 (D. Kan. 2007).
This court has specifically indicated that a motion to strike
is not the proper method to address [problematic] testimony. The proper method is to dispute the facts relied on in the deposition testimony as not supported by admissible evidence. It suffices that the party objecting to summary judgment material simply state the objection with a brief description (akin to a speaking objection) and citation to the Federal Rule or case upon which the objection is based, in response to the factual averment itself.
Green v. Harbor Freight Tools USA, 2013 WL 4504316, *3 (D. Kan. 2013).
Further, in many instances the affidavit does not directly contradict earlier deposition testimony. Thus, the defendant complains that in Paragraph 3 of her affidavit, Llamas states, “I was never counseled or disciplined regarding the manner in which I conducted myself with co-workers or customers, ” while citing earlier deposition testimony in which she indicated indeed that she had been “counseled.” A review the actual testimony, however, indicates that Llamas answered affirmatively when asked, “So, she counseled you previously for this very thing, didn’t she?” But the “very thing” referenced in the question was apparently for a shortage in the store - not counseling as to Llamas’s relations with customers or co-workers.
On the other hand, at Paragraph 8 of her affidavit, Llamas unequivocally states that Robinson did not talk to her about any overages or shortages before the August 10, 2009 write up, and “I did not know they were issues until they were included on the August 10 write up.” Yet Llamas had previously testified:
Q. And, it’s not incorrect that this is a repeated violation, is it?
Q. In other words, she had counseled you previously on this [the overages and shortages], hadn’t she?
A. Just said – made a comment like, you know, you need to pay attention.
Q. Well, if someone makes a comment about you not performing exactly the way they want them to and they’re your superior, do you consider that to be counseling or not?
A. Yes. Yes.
Q. So, she counseled you previously for this very thing, didn’t she?
Llamas’s subsequent averment thus directly contradicts what she earlier acknowledged, that Robinson had indeed alerted her to the issue of overages and shortages prior to the August write up.
Similarly, in Paragraph 10 of her affidavit, Llamas denies having “a meeting with Deanna Robinson and Bill Banker on January, 4, 2001, ” after an argument with Robinson on January 4, 2011. Rather, she telephoned Banker after the argument, and later apologized to Robinson. She continued, stating that neither Robinson or Banker told her she should improve her performance on January 4, 2011. (Aff. ¶ 13).
In her deposition, Llamas testified
Q. Well, earlier in your deposition we spent some time, a little bit of time, talking about how you were counseled and talked to by Bill Banker and Deanna Robinson about punctuality and about professionalism and teamwork, do you remember testifying to that?
Q. And, those were not at the end of your pregnancy, were they ma’am?
A. No, that’s when me and Deanna got into an argument.
Q. And, my question is: That’s not at the end of your pregnancy, was it?
In responding to the motion to strike, plaintiff argues that the affidavit is not really contradictory, since the deposition “does not contain any temporal reference” to January 4, 2011. This is disingenuous. Only one “argument” is referenced during the relevant time period, and Llamas’s own affidavit acknowledges that “[a]t no point on January 4" was she told she needed to “change or improve my performance, ” nor did they “comment on tardiness.” This directly contradicts her deposition testimony that, on the same day as she argued with Robinson, both Banker and Robinson “counseled” her about “punctuality and about professionalism and teamwork.”
In no instance, however, do such contradictions affect the court’s ultimate conclusion. In most cases where there does appear to be a direct and unexplained contradiction of earlier testimony, the apparently conflicting portions of the plaintiff’s affidavit are not even cited in the text of her Response Brief. In other instances, apparent conflicts, such as whether Llamas did in fact call Banker to complain about her raise on May 18 (Aff. ¶ 134) relate to issues surrounding the 2011 performance review, which (as discussed below) plaintiff effectively concedes by failing to respond to QC’s legal arguments. Similarly, the ultimate truth of the assertion (in Llamas’s affidavit) that she did not use profanity in front of co-workers or customers is not controlling, since the ultimate issue is whether or not Banker and QC had a good faith basis for believing that she did, and that evidence establishes they did.
Findings of Fact
QC is a provider of convenient financial solutions that meet the immediate needs of mainstream Americans. The company believes business success stems from how its customers are treated, and expects its employees to deliver exceptional, personalized customer service, starting with the customer’s initial contact with QC.
According to its employee manual, QC is committed to the principle of equal employment opportunity and nondiscrimination. QC has a policy against discrimination and harassment, and it is committed to providing a work environment that is free of unlawful discrimination and harassment. Under that policy, employees must immediately report any discrimination or harassment to their area manager, regional manager, or the human resources department.
The manual provides:
The employee manual contains many important policies that if violated, may result in disciplinary action up to and including termination. The company recognizes that each situation involves a unique set of circumstances and progressive discipline is promoted. Each situation should be reviewed and evaluated on the individual facts and in the context of surrounding circumstances such as severity of the situation, number of occurrences, tenure with the Company, prior disciplinary action, etc.
The manual provides a progressive system of discipline, based on the severity of the infraction.
QC has an open door policy, and if an employee has a concern, he or she can go to his or her supervisor or directly contact Human Resources.
QC also has an absenteeism policy, where unexcused or excessive tardiness and absenteeism are grounds for discipline, up to and including termination. Disciplinary actions can range from verbal documentation to termination, and the type of discipline given to an employee depends on, among other things, the severity of the offense, prior disciplinary action, and the number of violations.
QC’s disciplinary procedures provide that an employee may be immediately terminated for insubordination, “including refusing a reasonable request and using obscene or otherwise objectionable language, ” or for “[l]ack of respect for and cooperation with co-workers, including the use of profane or abusive language” may result in immediate termination.
QC managers conducts annual performance assessments. Banker typically talks with his area managers about the assessments of branch managers, and usually is shown the performance assessments of the branch managers.
Llamas, who identifies herself as multiracial – Caucasian, African-American, and Native American – applied for employment with QC on April 21, 2009. In her application, she certified that the information she supplied was true, accurate, and complete, and agreed that any misrepresentation or omission of fact would be cause for denial of employment or immediate termination of employment, regardless of when or how discovered.
In her deposition, Llamas admitted that she failed to include all of the requested information on her application to QC. Although the application asked her to list her last four employers, Llamas listed only three. She also did not answer the question asking how many jobs she had held over the last ten years. She also did not indicate that she had worked for at least eight other employers.
Although the application asked her to describe the instances where she had been discharged or asked to resign, Llamas did not report that she had been fired from at least five other jobs.
Llamas also admitted she was not always truthful on her application. She listed Comfort Keepers as one of her previous employers, but she failed to state the true reason why she left her employment with Comfort Keepers. Llamas was fired from that job the same day she started it, after telling her supervisor “you’re full of shit.” On May 26, 2009, QC area manager Deanna Robinson hired Llamas as a customer service representative. Robinson had begun working for QC in 2005 as a branch manager. Promoted to area manager in 2006, Robinson oversees the daily operations of four branches. Robinson identifies herself as a Caucasian female. She has one child, who is biracial.
When she was hired, Llamas received a copy of QC’s employee manual. That manual discusses QC’s policies and procedures and sets forth QC’s expectations of employees.
Robinson reports to regional manager William Banker. Banker, a white male, has worked for QC for seventeen years. He has been a regional manager since 2001 or 2002. As regional manager, Banker works with area managers to run the stores in his area, and relies heavily on his five area managers and talks with them on a daily or weekly basis.
Banker approved the hiring of Llamas. When Robinson took over Branch 523 as area manager, she hired three customer service representatives – Llamas, Kayla Newman (who is Caucasian), and Guadalupe Luna (who is multiracial).
During her entire tenure with QC, Llamas worked at Store 523.
When Robinson disciplines an employee, she generally communicates and consults with Banker. In disciplining an employee, Banker will generally speak to the employee involved or other employees who have witnessed misconduct, and may issue a verbal warning accompanied by some written memorial. However, Banker also testified that each disciplinary situation is different.
On August 10, 2009, Robinson wrote up Llamas and Newman for overages and shortages in their cash drawers. Robinson had verbally counseled Llamas on each of the occasions her cash drawer had overages or shortages.
On August 26, 2009, Robinson promoted Llamas to the position of assistant branch manager. Banker approved the promotion. As a result, Llamas’s ...