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Simon v. Grafton, Inc.

United States District Court, D. Kansas

July 23, 2014

EMIL MARSHON SIMON, Plaintiff,
v.
GRAFTON, INC. and BIOMUNE COMPANY, Defendants. Consolidated With No. 12-2797

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiff Emil Marshon Simon, proceeding pro se and in forma pauperis, filed separate employment discrimination actions against Defendants Grafton, Inc. d/b/a/Grafton Staffing Companies and G3 Industrial Recruiting, LLC ("Grafton") and Biomune Company ("Biomune"), alleging Defendants violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., claiming that he was sexually harassed, a victim of racial discrimination and retaliation, and that Defendants have engaged in a conspiracy as governed by 42 U.S.C. § 1985(3). The cases were subsequently consolidated (Docs. 42, 71). This matter is before the Court on Motions for Summary Judgment filed by Defendant Grafton (Doc. 60) and Defendant Biomune (Doc. 29).[1] Plaintiff also moves for summary judgment (Docs. 32, 59), for leave to supplement evidence in support of his motion (Docs. 37, 67) and for appointment of counsel (Docs. 39, 69). Both Defendant Biomune and Grafton move to strike Plaintiff's motion (Docs. 36, 65). For the reasons set forth in detail below, the Court denies Defendants' motions to strike and grants Plaintiff's request for leave to supplement. The Court further denies Plaintiff's motion for summary judgment and grants Defendants summary judgment on all counts.[2]

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it is "entitled to a judgment as a matter of law."[3] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[4] A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."[5] An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."[6]

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[7] 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.[8]

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."[9] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[10] 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."[11] To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."[12] 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.[13] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[14] "Where, as here, the parties file cross-motions for summary judgment, we are entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts."[15]

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."[16] 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."[17]

Because plaintiff is a pro se litigant, the court must construe his pleadings liberally and apply a less stringent standard than that which is applicable to attorneys.[18] However, the court may not provide additional factual allegations "to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf."[19] The court need only accept as true the plaintiff's "well-pleaded factual contentions, not his conclusory allegations."[20] Additionally, a pro se litigant is not excused from complying with the rules of the court and is subject to the consequences of noncompliance.[21]

II. Plaintiff's Motion for Summary Judgment

Plaintiff filed separate motions for summary judgment on his claims against Grafton and Biomune, each containing a memorandum in support. Plaintiff's memoranda set forth what appears to be a list of Kansas pattern jury instructions, and continues with a section entitled "Factual Allegations Common to All Claims for Relief, " in which he summarizes his allegations against Defendants. This is followed by a section entitled "Statement of Facts" consisting of thirty-one separately numbered paragraphs that contain conclusions of law and unsupported allegations against Defendants, without any citation to the record. Plaintiff did not provide any affidavits, depositions, declarations, nor any other support for his statement of facts. On March 28, 2011, Plaintiff moved for leave to supplement his Motion for Summary Judgment filed against Biomune. The motion attempts to correct his failure to cite to the record in his original motion, and restates the thirty-one numbered paragraphs with reference to exhibits attached to the motion.

Both Biomune and Grafton move to strike Plaintiff's motions for summary judgment, and oppose his attempt to supplement his motion with exhibits. Defendants assert that Plaintiff's motions do not comply with Fed.R.Civ.P. 56 or D. Kan. Rule 56.1. Under Fed.R.Civ.P. 12(f), the Court may order stricken from any pleading "any redundant, immaterial, impertinent or scandalous matter." Motions to strike are generally disfavored because striking an entire pleading is a drastic remedy and such a motion is often brought as a dilatory tactic.[22] This Court typically declines to strike a motion for summary judgment or a supporting affidavit that does not comply with D. Kan. Rule 56.1 or Rule 56(e), and instead simply disregards those portions of the response or affidavit that do not comply.[23] The facts in this case are, for the most part, undisputed, and both Defendants and Plaintiff have responded to the others' motions, respectively. Although Plaintiff's motions are replete with procedural deficiencies, the Court declines to strike his pleadings, and will instead attempt to disregard the portions that are not in compliance with the Rules.

The Court will also permit Plaintiff to supplement his original motions, primarily because the court affords pro se litigants some degree of latitude with respect to those procedural rules that are designed primarily for the court's convenience. Defendants assert no prejudice from Plaintiff's motion and the Court prefers to decide civil cases on their merits where possible, instead of ruling based on a party's procedural failure to present any factual material in support of his position.

III. Uncontroverted Facts

The following facts are either uncontroverted or stipulated to in the Pretrial Order.[24] Grafton is a national staffing firm and has been providing personnel to clients around the world since 1989. Grafton has a local office in Leawood, Kansas. Grafton provides temporary staffing solutions to its clients. Grafton does not guarantee any individual employment but works with them to find temporary assignments that in some cases, may lead to permanent positions. Grafton does not have a written workplace violence policy, but does not tolerate violence in the workplace. On October 8, 2010, Plaintiff, who is African-American, completed an application with Grafton on which he stated he was seeking work with an "open" minimum pay rate, but a desired pay rate of $14.00 per hour. Plaintiff was an employee of Grafton.

Biomune has been a client of Grafton since 2008. Since that time, all interviews conducted by Biomune of temporary employees from Grafton have occurred at Grafton's local office in Leawood, where all potential hires are sent for interviews. On November 19, 2010, Plaintiff had an interview at Grafton's office with Reed Longaker with Biomune. Plaintiff arrived an hour late, but says that Terri Amyx, Senior Account Manager for Grafton, gave him the wrong address.

On November 29, 2010, Plaintiff was temporarily assigned to Biomune by Grafton. Plaintiff was assigned to a warehouse position at Biomune, where Longaker was his supervisor. At all times during Plaintiff's assignment at Biomune, he received wages from Grafton. While he was assigned to Biomune, Grafton did not supervise Plaintiff in his day-to-day duties, was not involved in any training, was not involved in dictating his work load or schedule, nor did it provide his place of work or any tools or protective gear needed to perform his duties at Biomune.

On January 4, 2011, Plaintiff was in the probationary period of his temporary assignment with Biomune. That day, Plaintiff and co-worker Kevin Littrell, an employee of Biomune, were removing vials from liquid nitrogen storage tanks in a small, enclosed room at Biomune's facility. Both men were wearing required safety equipment at the time of the incident, due to the hazardous materials in the immediate vicinity, and were suited up when they entered the room. Plaintiff was wearing thermal gloves, a safety shield, an apron, and safety shoes. The apron went down past the men's knees and was made of a material similar to a pot holder and thicker than a kitchen apron. Plaintiff contends that out of the blue, Littrell got behind him and grinded on his rear end with his penis, making contact with Plaintiff's rear end. Plaintiff "shove punched" Littrell within the closed area in the immediate vicinity of the storage tanks containing hazardous materials. Littrell did not attempt to hit Plaintiff, but took a defensive "cowering" position in anticipation of further physical aggression by Plaintiff.

Plaintiff requested a Biomune employee to get a manager. Shortly thereafter, Corrine Prettyman, Production Manager for Biomune, appeared on the scene and Plaintiff informed her of what had occurred. Prettyman summoned Peggy Gardella, director of Biomune Human Resources, to get her input. The events led to an investigation, which included a meeting between Plaintiff, Littrell, Prettyman, and Gardella to discuss what had happened. Gardella asked Plaintiff and Littrell to explain what had occurred. Littrell said that he tripped and fell into Plaintiff, and grabbed hold of Plaintiff to break his fall. Plaintiff interrupted Littrell and leaned over the table in the conference room, pointing at Littrell. Gardella had to ask Plaintiff to take a seat and maintain his composure and was concerned that Plaintiff's behavior would escalate the situation. At Gardella's direction, Plaintiff and Littrell each submitted written statements describing the incident. Gardella then interviewed all of the warehouse employees, but none of them witnessed the incident and were unable to confirm ...


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