United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This employment discrimination case comes before the Court on cross-motions for summary judgment.
I. Summary Judgment Standard
On summary judgment, the initial burden is with the movant to point out the portions of the record which show that the movant is entitled to judgment as a matter of law. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992), cert. denied, 506 U.S. 1013 , 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the non-movant must set forth specific facts which would be admissible as evidence from which a rational fact finder could find in the non-movant's favor. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). The non-movant must show more than some "metaphysical doubt" based on "evidence" and not "speculation, conjecture or surmise." Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bones v. Honeywell Intern., 366 F.3d 869, 875 (10th Cir. 2004). The essential inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether the evidence is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In applying this standard, all inferences arising from the record must be drawn in favor of the nonmovant. Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003). Credibility determinations and the weighing of the evidence are jury functions, not those of a judge. Id. at 1216. Nevertheless, "the nonmovant must establish, at a minimum, an inference of the existence of each element essential to [her] case.'" Croy v. COBE Laboratories, Inc., 345 F.3d 1199, 1201 (10th Cir. 2003) (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)).
II. Pro Se Lack of Compliance With Rules
The dispositive motion deadline in this case was July 14, 2014. See Dk. 55. UPS filed its motion for summary judgment on that date but Plaintiff did not file his cross-motion for summary judgment until August 7th. Additionally, under D. Kan. Rule 6.1(d)(2), plaintiff's response to Defendant's summary judgment motion was due by August 4, 2014. Plaintiff filed it on August 7th as well. In accordance with D. Kan. Rule 56.1(f), UPS sent plaintiff a "Notice to Pro Se Litigant Who Opposes a Summary Judgment Motion, " advising Plaintiff that his casecould be dismissed if he did not timely file his response brief. See Dk. 58. Plaintiff filed his untimely cross-motion for summary judgment and his untimely response to Defendant's summary judgment motion without seeking a further extension from the Court or consulting with the Defendant. See Dk. 60, 61, 62. Therefore, pursuant to D. Kan. Rule 7.4(b), UPS's motion for summary judgment shall be decided as uncontested.
But even if the Court considered the substance of Plaintiff's cross-motion and response to Defendant's motion, Plaintiff would fare no better. Plaintiff has attempted to controvert very few of Defendant's factual assertions, and has done so without citation to the record. Local Rule 56 requires that "[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. R. 56.1(a). To specifically controvert facts, the party must number the facts and "must refer with particularity to those portions of the record upon which movant relies." Id. Plaintiff has not cited the record in support of any of his facts, and the court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The court should not be the pro se litigant's advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and will not accept as true conclusory allegations unsupported by factual allegations. Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir. 2001). Accordingly, for this additional reason, the Court considers Defendant's statement of facts to be uncontroverted for purposes of this motion.
This may seem a harsh result to Plaintiff, who acts pro se. The Court does construe the substantive pleadings of pro se parties liberally. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). But pro se litigants must comply with the procedural rules or suffer the consequences of noncompliance. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) ("This court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants"). This includes the court's local rules. Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan. 2006). The rules regarding summary judgment motions are designed to provide procedural fairness to both parties. See Azzun v. Kansas Dept. of Health and Environment, 2010 WL 4975557 (D.Kan. 2010).
The Court thus examines whether the uncontested facts warrant summary judgment.
III. Uncontested Facts
UPS has a facility in Lenexa, Kansas where employees fix and repair trailers. Plaintiff began working there in January of 2004 as a utility worker and stayed in that position throughout his employment.
UPS has a zero-tolerance policy regarding workplace violence. Its Professional Conduct and Anti-Harassment Policy states:
UPS prohibits violent behavior including, but not limited to, physical assaults, fighting, threatening comments, and intimidation.... Any comments or behavior that could be reasonably interpreted as an intent to do harm to people or property will be considered a threat.
UPS conducts training with its employees annually and as needed on this policy, and instructs its employees to review the policy and sign an acknowledgement of review.
During the training program, management specifically informed its employees of the following: that UPS prohibits violent behavior, physical assaults, fighting, threatening comments, and intimidation; that any comments or behavior that could reasonably be interpreted as an intent to harm others would be considered a threat; and that employees should contact management if they had a conflict with a co-worker. On October 16, 2008, plaintiff attended UPS's workplace violence prevention program, which took about 30 minutes. Plaintiff signed UPS's workplace violence prevention program document after that training, as well as after similar training in August of 2009.
Defendant terminated Plaintiff's employment four times for workplace violence - in September of 2009, March of 2011, April of 2011, and September of 2012 - but through the grievance process Plaintiff got each of those terminations reduced to a suspension. As a condition of his suspension in September of 2009, Plaintiff was required to see a licensed psychologist before he returned to work. And as a condition of his suspension in September of 2012, Plaintiff was required to attend an eight-week anger management seminar before returning to work, and Plaintiff's union gave him a final warning. His lawsuit relates primarily to his fifth termination, which was not reduced to a suspension.
Plaintiff's Fifth and Final Termination for Workplace Violence
On March 7, 2013, during a pre-shift fire drill, Carlo Leone, automotive supervisor, saw Plaintiff and co-worker Pascal Kinsey walking about ten feet apart in the parking lot. Leone heard Kinsey tell the Plaintiff to leave him alone and stay away from him. Leone told them to knock the playing off before somebody got serious. Plaintiff and ...