United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
Jacquelyne Jones brings suit pro se against John M. McHugh, Secretary of the Department of the Army, for employment discrimination. This matter comes before the Court on Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment (Doc. 18), Defendant's Motion to Strike Plaintiff's Reply to Defendant's Response for Summary Judgment (Doc. 62), and Plaintiff's Motion to Strike Defendant's Summary Judgment Evidence (Doc. 64). For the reasons explained below, the Court grants Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment, denies Defendant's Motion to Strike Plaintiff's Reply to Defendant's Response for Summary Judgment, and denies Plaintiff's Motion to Strike Defendant's Summary Judgment Evidence.
In November 2006, Plaintiff Jacquelyne Jones started working as a civilian employee for defendant at the Combined Arms Center ("CAC") at Fort Leavenworth, Kansas. Jones is a "black female" over the age of 40. On October 19, 2012, Jones filed her Complaint in this law-suit alleging that, starting in 2007 and continuing through 2011, she was the victim of numerous incidents of employment discrimination. Specifically, Jones alleges that defendant discriminated against her based on her race, religion, national origin, gender, disability, age, and "non-military affiliation, " in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq.
Jones' district court Complaint contains only bare allegations of discrimination. However, Jones filed three formal complaints with the Department of the Army's Equal Employment Opportunity office that describe defendant's allegedly discriminatory acts. The Court will analyze each EEO Complaint in turn.
II. First EEO Complaint
Jones' First Formal EEO Complaint covers incidents that occurred between March and August 2007. Jones first contacted the Department of the Army's EEO office on April 23, 2007. On or about April 24, 2007, Major Suzanne Self, Jones' senior rater, received notice that an un-named individual had filed a complaint of discrimination against defendant. Self did not learn that Jones was the complainant until May 17, 2007. On June 19, 2007, Jones filed her First Formal Complaint of discrimination with defendant's EEO office, alleging discrimination based on her race and sex and retaliation for contacting the EEO office. Defendant seeks an order granting summary judgment on the claims brought in Jones' First Formal EEO Complaint.
A. Summary Judgment
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 247. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which [she] carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).
"[W]e must view the record in a light most favorable to the [party] opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 249-50. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
B. Preliminary Matters
Before discussing the merits of defendant's Motion for Summary Judgment, the Court must first address two preliminary matters: (1) Jones' Motion to Strike Defendant's Summary Judgment Evidence and (2) whether the facts in Defendant's Motion for Summary Judgment should be admitted.
(1) Jones' Motion to Strike Defendant's Summary Judgment Evidence is Denied
On October 14, 2013, Jones filed a Motion to Strike Defendant's Summary Judgment Evidence (Doc. 64). Specifically, Jones asks the Court to strike Exhibits 1-7, 9-15, 17-36, 38-46, 48-50, 52, 53, and 55-69 to Defendant's Memorandum in Support of Its Motion for Summary Judgment (Doc. 19) because, she argues, the Exhibits are not authenticated. Jones makes no argument about why the challenged Exhibits are unauthenticated, nor does she assert any specific claims challenging their authenticity.
It is well settled that a Court can consider only admissible evidence in reviewing a motion for summary judgment. Fed R. Civ. P. 56(c)(2); see Law Co., Inc. v. Mohawk Constr. and Supply Co., Inc., 577 F.3d 1164, 1170 (10th Cir. 2009). "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed.R.Evid. 901(a). Evidence may be authenticated by the "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Id. at 901(a)(4); Law Co., 577 F.3d at 1171 (holding that the district court should have considered whether documents could be authenticated under Fed.R.Evid. 901(a)(4)). A district court should consider authentication of each piece of evidence individually. Law Co., 577 F.3d at 1171.
Defendant's summary judgment evidence consists of witness affidavits (Exhibits 8, 9, 16, 33, 51, 54, 70) and documentary evidence (Exhibits 1-7, 10-15, 17-32. 34-50, 52, 53, 55-69). After examining the documentary evidence, the Court finds that the circumstantial evidence suggests that the documents are what they purport to be and will therefore consider them in deciding defendant's motion. Fed.R.Evid. 901(a)(4); see Bhandari v. VHA Southwest Comm. Health Corp., No. 09-0932, 2011 WL 1336512, at *4 n.2 (D.N.M. Mar. 30, 2011). Many of the challenged documents are on EEO office letterhead or signed by Jones. Furthermore, Jones attached many of these same allegedly unauthenticated documents to her two Opposition motions (Docs. 37 and 58), and she makes no allegation there that the evidence is fake or not what defendant claims it to be. Because there is sufficient circumstantial evidence to support the documents' authenticity, the Court denies Jones' Motion to Strike Defendant's Summary Judgment Evidence (Doc. 64).
(2) Facts in Defendant's Motion for Summary Judgment are Deemed Admitted
Defendant filed its Motion to Dismiss or, in the alternative, for Summary Judgment (Doc. 18) on April 1, 2013. Jones filed her first Opposition to Defendant's Motion (Doc. 37) on July 11, 2013, but the Court struck it from the record because Jones' blanket statement that "Facts 1-243" in defendant's motion "are disputed" did not comply with D. Kan. Rule 56.1. D. Kan. Rule 56.1(b) provides that:
(1) A memorandum in opposition to a motion for summary judgment must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant's fact that is disputed.
Moreover, "[a]ll material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." D. Kan. Rule 56.1(b).
Because Jones is proceeding pro se, Judge Vratil allowed her to revise her response to comply with court rules. Judge Vratil specifically warned Jones that "pursuant to D. Kan. Rule 56.1(a), all material  facts set forth in defendant's statement will be deemed admitted unless specifically controverted by plaintiff in accordance with D. Kan. Rule 56.1(b) and (d)."
Jones refiled her Opposition brief on September 10, 2013 (Doc. 58), but it still does not set forth the specific paragraphs in defendant's memorandum that she disputes or specifically contradicts defendant's factual assertions with reference to those portions of the record upon which she relies. Jones states only that "[s]ummary judgment is improper in this case because there are genuine disputes of material fact on each element of plaintiff's claim for employment discrimination...." Accordingly, under D. Kan. Rule 56.1(a) and (b), the Court accepts defendant's factual statements-which are adequately supported by record evidence-as true. But, the Court will not automatically grant defendant's motion for summary judgment for failure to comport with the local rules. Rather, the Court will base its determination on defendant's statement of uncontroverted facts and the record as a whole.
The Court now turns to the merits of Defendant's Motion for Summary Judgment on the claims brought in Jones' First Formal EEO Complaint.
(1) Legal Standard
In her First Formal EEO Complaint, Jones claims that defendant discriminated against her on the basis of her race and sex and retaliated against her for contacting defendant's EEO office. Thus, the claims in Jones' ...