United States District Court, D. Kansas
For Daron Downs, Plaintiff: Alan V. Johnson, LEAD ATTORNEY, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, LLC - Topeka, Topeka, KS.
For Jostens, Inc., Defendant: Jeffrey A. Schwartz, LEAD ATTORNEY, PRO HAC VICE, Jackson Lewis LLP - Atlanta, Atlanta, GA; Jessica L. Liss, LEAD ATTORNEY, Jackson Lewis LLP - St. Louis, St. Louis, MO.
MEMORANDUM AND ORDER
JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.
Plaintiff Daron Downs brings this action against his former employer, Defendant Jostens, Inc., alleging a claim of retaliation under Title VII of the Civil Rights Act.
This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. 24). The motion is fully briefed and the Court is prepared to rule. For the reasons stated below, Defendant's motion is denied.
I. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is " no genuine issue as to any material fact" and that it is " entitled to judgment as a matter of law."  In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. " There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party."  A fact is " material" if, under the applicable substantive law, it is " essential to the proper disposition of the claim."  An issue of fact is " genuine" if " 'the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" 
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to " set forth specific facts showing that there is a genuine issue for trial."  The nonmoving party may not simply rest upon her pleadings to satisfy her burden. Rather, the nonmoving party must " set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."  To accomplish this, the facts " must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."  Rule 56(c)(4) provides that opposing affidavits must be
made on personal knowledge and shall set forth such facts as would be admissible in evidence. The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.
Finally, summary judgment is not a " disfavored procedural shortcut" ; on the contrary, it is an important procedure " designed to secure the just, speedy and inexpensive determination of every action."  In responding to a motion for summary judgment, " a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial." 
II. Uncontroverted Facts
The following facts are uncontroverted or stipulated to by the parties, and all reasonable inferences are drawn in favor of Plaintiff as the non-movant. Defendant Jostens, Inc. owns and operates a Topeka, Kansas production facility, where it printed and bound yearbooks and related products until September 2012. Plaintiff was employed there from 2002 to 2012. Defendant's business is seasonal in nature based primarily on the school year. During non-peak periods, Defendant regularly placed " non-essential" employees on temporary layoff.
The manufacturing employees at the Topeka facility were represented by Graphic Communications Local No. 49-C (" the union" ) for purposes of collective bargaining. In May 2012, Defendant announced the closure of the Topeka manufacturing operations due to declining business, and consolidated them into Defendant's Clarksville, Tennessee facility subject to bargaining with the union. A significant portion of the manufacturing employees were let go by the end of July 2012, with the remainder terminated over the next several months. The union and Defendant negotiated and entered into a Closing Agreement covering terms and conditions of the closure in July 2012.
Section 6.2 of the collective bargaining agreement (" CBA" ) provided that Jostens must use seniority when recalling an employee from layoff:
Each of the above departments [press, bindery, plate, etc.] shall be treated as a single unit for seniority purposes. Seniority shall be observed by department within the bargaining unit. In case of layoff for lack of work the last employee in the department on the seniority list shall be the first laid off providing the senior employees are then capable of doing the available work on a production basis in the affected department.
When employees are recalled to work, the reverse order shall prevail.
Ronald Lee Struble, a Senior Resources Manager for Jostens, understood that this provision does not require Defendant to use department seniority when transferring a laid off employee to work on a temporary basis in a different department. Michael ...