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Cappell v. Department of The Army

United States District Court, District of Kansas

November 6, 2014


Dennis G. Cappell, Plaintiff, Pro se, Kansas City, MO.

For Secretary of Department of the Army, Honorable John M. McHugh, Secretary, Defendant: Christopher Allman, Robin R. Anderson, LEAD ATTORNEYS, Office of United States Attorney - Kansas City, Kansas City, KS.



Plaintiff Dennis G. Cappell seeks monetary damages from his past employer, defendant Department of the Army (" defendant") for alleged race discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq . (" Title VII"). This matter is before the court on defendant's Motion for Summary Judgment (Dkt. 50) and Motion to Strike Deposition Correction Sheet (Dkt. 52). For the reasons stated below, defendant's motions are granted. Because defendant's Motion to Strike has direct bearing on its Motion for Summary Judgment, the court undertakes this analysis first.

I. Motion to Strike Deposition Correction Sheet

In its Motion, defendant seeks to strike plaintiff's deposition corrections on the grounds that the corrections were untimely and substantively altered plaintiff's testimony. Defendant deposed plaintiff, appearing pro se, on June 4, 2014. At the start of the deposition, plaintiff was informed that he would have an opportunity to review the transcript and make any changes or corrections on an errata sheet. Dkt. 52-2, at 7. He was also advised that he would have only thirty days to make these changes or corrections; otherwise, the transcript would be deemed correct. Dkt. 52-2, at 7.

The preliminary transcript was sent to plaintiff on June 12, 2014. Dkt. 52-1, at 2. The cover letter attached to the transcript reminded plaintiff that he had thirty days to review, sign, and return the transcript along with any corrections. Dkt. 52-1, at 2. On July 14, 2014, two days after the initial deadline had passed without response from plaintiff, he was again advised, in writing, to return the signature page and any corrections within ten days or the transcript would be filed without his signature. Dkt. 52-3, at 2. Plaintiff still failed to respond. Given plaintiff's testimony, defendant therefore filed the pending Motion for Summary Judgment on July 24, 2014. Four days later, on July 28, 2014, defendant received plaintiff's deposition correction sheet.[1]

Federal Rule of Civil Procedure 30(e) provides:

If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certification prescribed by subdivision (f)(1) whether any review was requested and, if so shall append any changes made by the deponent during the period allowed.

" The Tenth Circuit construes the 30-day period for submitting changes as 'mandatory' and that deposition changes are permissible under Rule 30(e) only if the party submitting the errata sheet establishes that the submission was provided to the court reporter within the time limit." United States ex rel. Smith v. Boeing Co., at *3 (D. Kan. Feb. 10, 2011) (citing Rios v. Bigler, 67 F.3d 1543, 1552 (10th Cir. 1995) (emphasis in original)); see also ICE Corp v. Hamilton Sundstrand Corp., at *4-5 (D. Kan. Dec. 3, 2007) (narrowly construing the 30-day requirement and striking an untimely errata sheet).

It is undisputed that the changes to plaintiff's deposition occurred more than thirty days (and indeed, more than forty days) after plaintiff learned of the availability of this transcript on June 12, 2014. Plaintiff has not filed any opposition to defendant's motion. While the court acknowledges plaintiff's pro se status, both at the time his errata sheet was due and now, it is well established in this Circuit that " a plaintiff's pro se status does not relieve him from complying with this court's procedural requirements." Auld v. Value Place Prop. Mgmt., LLC, at *47 n.79 (D. Kan. Feb. 19, 2010) (citing Barnes v. United States, 173 F.App'x 695, 697 (10th Cir. 2006) (emphasis added)). Plaintiff was warned of the consequences of his failure to submit timely corrections to his deposition transcript. He failed to heed those warnings. As such, defendant's Motion to Strike (Dkt. 52) is granted.

II. Motion for Summary Judgment

A. Local Rule Dispute

Similarly, defendant alleges that plaintiff failed to comply with standard summary judgment procedure and respond specifically to the facts set forth in defendant's Memorandum. Instead, defendant alleges, plaintiff " opted to create his own list of facts." Dkt. 61, at 2. Defendant therefore requests that its statements of fact not specifically controverted by plaintiff be deemed admitted in accordance with Kansas Local Rules.

The Kansas Local Rules provide as follows with regard to summary judgment procedure:

(a) Supporting Memorandum. The memorandum or brief in support of a motion for summary judgment must begin with a section that contains a concise statement of material facts as to which the movant contends no genuine issue exists. The facts must be numbered and must refer with particularity to those portions of the record upon which movant relies. All 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.
(e) Duty to Fairly Meet the Substance of the Matter Asserted. If the responding party cannot truthfully admit or deny the factual matter asserted, the response must specifically set forth in detail the reasons why. All responses must fairly meet the substance of the matter asserted.

D. Kan. R. 56.1(a), (e) (emphasis added).

The only factual statements from defendant's motion specifically controverted by plaintiff are: 5, 7, 13, 18, 19, 26, 27, 30, 32, 36, 40, 41, 53, 57, 60, and 61. Defendant therefore argues that the remaining facts set forth in its Memorandum in Support of Summary Judgment should be deemed admitted for purposes of summary judgment. The court agrees. Again, plaintiff's pro se status does not relieve him from complying with the court's procedural requirements. Auld, at *47 n.79. Therefore, those facts not specifically controverted by plaintiff are deemed admitted for purposes of summary judgment.

B. Factual and Procedural Background

Plaintiff's allegations stem from his time as a dual-status employee at the Army Air Support Facility Olathe (" ASF Olathe") located in Gardner, Kansas. Plaintiff is an African-American who was hired in 2004 as a federal civilian employee. As a condition of his employment, he also maintained membership in the Army Reserves. Plaintiff generally worked as a Maintenance Administrative Technician, but, when he received military orders, would report to duty as a member of the military as a Chinook helicopter pilot in training. Plaintiff often reported to military duty at ASF Olathe. During the time in question, plaintiff's civilian hierarchy was as follows: (1) immediate supervisor Russell Reese (" Reese"), (2) senior civilian/second-level supervisor rater Ronald Erkie (" Erkie"), and (3) third-level supervisor Aviation Support Facility Supervisor Michael Walsh (" Walsh").

1. Civilian Issues

As a Maintenance Administrative Technician, plaintiff's primary civilian responsibility was collecting timesheets and inputting payroll for all ASF Olathe employees. Because his military orders sometimes took him away from these duties for months at a time, other civilian employees were tasked with inputting payroll in plaintiff's absence, ensuring that all ASF Olathe employees continued to get paid in a timely manner. Plaintiff was responsible for verifying that all payroll matters and materials were correct and in order upon his return from his military duties.

a. Race Discrimination Claims[2]

For much of 2009, plaintiff was on military orders and attending flight school. In his absence, a Caucasian civilian employee, Leonard Rickard (" Rickard"), assumed responsibility for inputting payroll for ASF Olathe. On his 2009 annual evaluation, plaintiff was cited for numerous payroll discrepancies that were discovered by an audit. Plaintiff discussed these errors with his immediate supervisor, Reese, and questioned why they were included on his evaluation when the errors had been made by Rickard while plaintiff was on military orders. In response, Reese allegedly told plaintiff that it did not matter if he personally made the mistakes; he had to be the " fall guy." According to plaintiff, he was forced to take the blame for Rickard's mistakes solely because of his race. Defendant disputes this allegation, claiming that plaintiff was told that " owing to the nature of his job duties, he [was] ultimately the person responsible for correcting pay errors, regardless of who initially made them." Dkt. 51-6, at 3. As such, plaintiff was the " fall guy."

On April 15, 2010, plaintiff received an interim evaluation which documented four payroll issues and/or errors. Plaintiff disputed that any of the payroll errors could be attributable to him as he had, once again, been on military orders at the time the errors were made. Plaintiff's second-level supervisor, Erkie, looked into the errors and ultimately reduced the number of documented issues from four to two and asked plaintiff to sign the evaluation, acknowledging his receipt. Plaintiff refused. As a result, Erkie included the following comments in the evaluation:

Mr. Cappell was briefed on his midterm review on 15 April 2010 at that time he was asked to acknowledge the face to face review. Mr. Cappell said he would do so. On follow up the next day it was found that he in fact did not acknowledge the review and was now refusing to do so because he did not agree with the rater assessment. Mr. Cappell then went on military orders and was not available to acknowledge the review. On 17 June Mr. Cappell was again asked to complete the process and acknowledge the interim review, Mr. Cappell refused to do so stating that his supervisor was a lier [sic] and his assesment [sic] was completely wrong. Mr. Cappell said he believes that if he acknowledges the review he is agreeing with the rater assessment. He was told that he is only acknowledging with the face to face review held on 15 april [sic] 2010.

Plaintiff alleges that he was pressured by Reese and Erkie approximately eight or nine times between April 2010 and December 2010, and once between December 20, 2010, and January 1, 2011, to sign the interim evaluation. According to plaintiff, he was pressured to sign in retaliation for a complaint he made to defendant's Equal Employment Opportunity (" EEO") Office.

In addition to an interim evaluation, civilian employees were also usually entitled to an annual evaluation of their performance. However, for dual-status employees, annual evaluations were only given when the individual had worked 120 consecutive days in his civilian position. This 120-day requirement could be extended or reduced at a supervisor's discretion.

After his 2010 interim evaluation, plaintiff was placed on military orders and remained so until early 2011. Because of his status, plaintiff's civilian supervisors opted against issuing plaintiff an annual evaluation at the time it was normally due, December 15, 2010, and instead chose to wait until plaintiff had returned from military orders and worked 120 consecutive days. According to plaintiff's supervisors, this was done for plaintiff's benefit. If they had issued the evaluation on time, they would have had no choice but to base it on plaintiff's subpar interim evaluation, given that plaintiff had been dispatched almost immediately thereafter on military orders. Plaintiff views the situation differently, alleging that Caucasian employees were given special " close out" evaluations in December 2010, despite not having worked for 120 consecutive days. Plaintiff ultimately received his 2010 annual evaluation in July 2011, after having worked 120 consecutive days.

b. Retaliation Claims

In February 2011, the military unit assigned to ASF Olathe was preparing to deploy to Afghanistan. Given the amount of work necessary to arrange the deployment, Walsh temporarily assigned plaintiff to the Flight Operations Office to assist ASF dispatcher Carolyn Simpson (" Simpson") with answering phones and monitoring the facility's security cameras and gates. According to Walsh, this was not a re -assignment of duties; rather it was just an additional workload. To effectuate this change, plaintiff's workspace was temporarily relocated to the Flight Operations Office near Simpson, which was upstairs from plaintiff's original location.

On February 4, 2011, Walsh sent an email to Simpson's supervisor, Bric Lewis (" Lewis"), notifying him of the move:

Bric, I am going to administratively assign Dennis to Ops as " Other duties as required" for a period of time to help out Carol and you. I still want him to work on getting his password back for timecards and take over that duty again. This does not negate any work that maintenance needs done. Tony and Russell can pass on tasks to Dennis through you. Give him a cubicle to work from. We need assistance with answering phone calls, visitors at the gate/door, administrative stuff, etc. Please keep him gainfully employed.

Although there was some initial confusion as to whether plaintiff's supervisory structure changed, Walsh ultimately clarified the situation, telling plaintiff that he still reported to Reese and Erkie, but also temporarily received orders from Lewis. The ASF Olathe military units were deployed in March 2011. Plaintiff returned to his original workspace in July 2011. Plaintiff now alleges that he was not immediately returned to his original workspace in retaliation for his December 2010 EEO complaint.

Simultaneous with this temporary workspace relocation, plaintiff's supervisors began noticing that his sick-leave use fit a pattern designated by defendant's Office of Personnel Management as potential sick-leave abuse. This pattern consisted of: (1) using more than sixty hours of sick leave per year with no documented special circumstances, (2) consistently using sick leave on the day before a weekend, and (3) taking a full day of sick leave for a short appointment. Plaintiff's supervisors had also become concerned that plaintiff was " shopping" for sick leave approval from different supervisors. Therefore, Walsh and Erkie informed plaintiff that they, not Reese or Lewis, would have to approve plaintiff's sick-leave requests. In accordance with defendant's standard policies, plaintiff was also asked to provide documentation of medical appointments and to give three days' notice whenever possible. Plaintiff alleges that this change in procedure was in retaliation for his EEO complaint.

2. Harassment/Hostile Work Environment

In addition to these discrete acts, plaintiff also alleges that he was the victim of a hostile work environment and harassment. According to plaintiff, at some point, an unknown person wrote the word " rat" on a whistle-blower poster outside of his office. Plaintiff notified his supervisor and the poster was immediately removed. Plaintiff also alleges that his third-level supervisor, Walsh, tried to incite racial tension between plaintiff and another employee by telling the other employee that plaintiff had complained about his racial jokes.

3. Military Issues

On December 15, 2010, as a result of his failure to pass readiness-level testing, plaintiff was issued a non-medical suspension, grounding him from flying Army helicopters. Plaintiff alleges that he would not have failed these requirements had he not been under the stress caused by the situation with his civilian employment. On April 1-2, 2011, the Army convened a Flight Evaluation Board (" FEB") to hear testimony, review plaintiff's flight records, and assess his skills as a helicopter pilot. The FEB concluded that plaintiff engaged in a " substandard performance of duty" and recommended dismissal. Dkt. 51-4, at 9.

4. EEO Complaint

Plaintiff made initial contact with an EEO counselor on December 20, 2010. He filed a formal complaint on January 29, 2011, alleging discrimination based on race and color. On March 25, 2011, defendant's EEO Office confirmed the following list of claims as those that had been accepted for investigation:

a. On December 15, 2010, your annual evaluation was due for the rating period of October 1, 2009 through September 30, 2010; however, as of February 19, 2011, you have not received your evaluation.
b. In April 2010, statements were placed in your interim review for the appraisal period of October 1, 2009 to September 30, 2010, that you feel are inaccurate, causing ...

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