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Nyanjom v. Hawker Beechcraft Corp.

United States District Court, D. Kansas

May 26, 2015

HAROLD M. NYANJOM, Plaintiff,
v.
HAWKER BEECHCRAFT CORP., Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiff Harold M. Nyanjom, proceeding pro se, filed this case on November 27, 2012, in the United States District Court for the Southern District of New York, alleging claims of discrimination and retaliation under the Americans with Disabilities Act ("ADA") and the Kansas Act Against Discrimination ("KAAD"), against his former employer, Hawker Beechcraft Corp. This case is before the Court on the following motions: Defendant's Motion for Summary Judgment (Doc. 147), Plaintiff's Cross-Motion for Summary Judgment (Doc. 153), Plaintiff's Motion for Leave to File Sur-Reply (Doc. 162), Plaintiff's Amended Motion for Leave to File Sur-Reply (Doc. 163), and Defendant's Motion to Strike Plaintiff's Response to Defendant's Reply to Defendant's Motion for Summary Judgment (Doc. 167). The motions are fully briefed and the Court is prepared to rule. As explained more fully below, after considering both of Plaintiff's briefs submitted on the summary judgment motions, the Court grants Defendant's motion for summary judgment and denies Plaintiff's motion for summary judgment. The Court grants Plaintiff's Amended Motion for Leave to File Sur-Reply and denies Defendant's motion to strike.

I. Procedural History

Plaintiff Harold Nyanjom originally filed this action in the United States District Court for the Southern District of New York because Defendant Hawker Beechcraft Corp. ("HBC") had filed Chapter 11 Bankruptcy in that district. Finding that venue lies in the District of Kansas, that court transferred this matter on December 11, 2012. On January 22, 2013, upon the Suggestion of Bankruptcy filed by Defendant, this Court entered an Order staying the case pending resolution of the bankruptcy. On May 20, 2013, Defendant filed a Bankruptcy Stipulation, approved by the Bankruptcy Court, which modified the Plan Injunction for the limited purpose of permitting Plaintiff to proceed with this litigation so that the value of his claim could be liquidated. The Stipulation explicitly does not waive any defenses to Plaintiff's claims.[1] The Court therefore lifted the stay and this case proceeded to discovery.

A dispositive motions deadline was set for November 7, 2014. The Revised Scheduling Order provides the following directives as to summary judgment motions:

a. All potentially dispositive motions (e.g., motions for summary judgment), must be filed by November 7, 2014. The court plans to decide dispositive motions, to the extent they are timely filed and briefed without any extensions, approximately 60 days before trial.
b. Compliance with Fed.R.Civ.P. 56 and D. Kan. Rule 56.1 is mandatory, i.e., summary judgment briefs that fail to comply with these rules may be rejected, resulting in summary denial of a motion or consideration of a properly supported motion as uncontested. Further, the court strongly encourages the parties to explore submission of motions on stipulated facts and agreement resolving legal issues that are not subject to a good faith dispute. The parties should follow the summary-judgment guidelines available on the court's website: [website hyperlink provided].[2]

Defendant sought and received two unopposed extensions of the dispositive motions deadline until November 18, 2014. On that date, Defendant filed its summary judgment motion, as well as a Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment, as required by this Court's local rule, D. Kan. Rule 56(f). That notice explained to Plaintiff the summary judgment procedure, and attached the federal and local rules governing summary judgment filings. Defendant's motion for summary judgment contains 104 numbered statements of material fact, to which it has provided specific citations to the record in support.

Plaintiff sought and was granted one unopposed motion for an extension of time until December 16, 2014, to respond to Defendant's summary judgment motion. He also sought and was granted leave to exceed the thirty page limit for the argument section of his brief. On December 16, 2014, Plaintiff filed his response, which he also styled as a Cross-Motion for Summary Judgment. In this filing, Plaintiff submits sixty-three numbered statements of material fact. Although they generally respond to various factual averments made in Defendant's motion, they do not correspond to the numbered paragraphs presented by Defendant. Some of these statements contain a citation to the record; most contain argument.

Defendant was allowed several extensions of time to reply. Its January 13, 2015 reply is voluminous: 120 pages in length. This is largely due to the fact that Defendant endeavored to correspond each of Plaintiff's numbered factual averments with Defendant's original numbered factual averments (to which Plaintiff failed to refer), and to provide either a response to each, or a statement as to whether it should be deemed uncontested. The length of the brief is entirely attributable to Defendant's attempt to aid the Court in determining the uncontroverted facts in this matter, given Plaintiff's failure to follow the local rules and guidelines that had been previously provided to him.

Upon receipt of Defendant's reply memorandum, Plaintiff filed motions for leave to file a sur-reply, which Defendant opposed. He did not comply with the Court's Local Rule 15.1 that applies when a party seeks leave to file a document that is not permitted under the rules as a matter of course - the proposed document must be attached to the motion for leave in order to allow the Court to determine whether leave should be granted. Instead, Plaintiff proceeded to file a ninety-three page sur-reply memorandum on February 19, 2015, without prior leave. The brief attempts to respond to each of the harmonized factual averments provided by Defendant in its reply memorandum, and to address the arguments raised in the reply. Defendant promptly moved to strike this document from the record.

II. Standards

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 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] "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."[5] A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."[6] An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party.'"[7]

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[8] 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.[9]

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."[10] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[11] 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."[12] When the moving party also bears the burden of proof at trial,

a more stringent summary judgment standard applies. Thus, if the moving party bears the burden of proof, to obtain summary judgment, it cannot force the nonmoving party to come forward with "specific facts showing there [is] a genuine issue for trial" merely by pointing to parts of the record that it believes illustrate the absence of a genuine issue of material fact. Instead, the moving party must establish, as a matter of law, all essential elements of the issue before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case.[13]

The facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."[14] 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.[15] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[16]

"Where, as here, the parties file cross motions for summary judgment, [the Court is] 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."[17] Cross motions should be considered separately.[18] Just because the Court denies one does not require that it grant the other.[19]

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."[20] 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."[21]

Because Plaintiff proceeds pro se, some additional considerations frame the Court's analysis. The court must construe his pleadings liberally and apply a less stringent standard than that which is applicable to attorneys.[22] 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."[23] Additionally, a pro se litigant is not excused from complying with the rules of the court and is subject to the consequences of noncompliance.[24]

III. Technical Defects with Plaintiff's Filings

Defendant first argues that Plaintiff's cross-motion for summary judgment is untimely and should be denied on this basis alone. The Court agrees that Plaintiff's motion is untimely; the dispositive motions deadline was November 18, 2014, yet Plaintiff filed his motion on December 16, as part of his response to Defendant's motion. Plaintiff suggests that the Court granted his motion to extend the deadline, but his motion for extension of time did not request an extension of the dispositive motions deadline. The Order therefore only allowed Plaintiff additional time to respond to Defendant's motion. Nonetheless, as explained fully below, the Court has reviewed Defendant's filing and finds that even if it was timely, it must be denied on the merits.

Defendant also opposes Plaintiff's attempt to file a sur-reply to the motion. Again, Defendant is correct that Plaintiff failed to follow the proper procedures in seeking leave to file the sur-reply, and that the sur-reply was improperly filed without prior leave of Court. The Court is also mindful of the herculean effort expended by Defendant in attempting to synthesize the factual averments in its reply brief. However, given Plaintiff's status as a pro se litigant, the Court must construe Plaintiff's filings more liberally than those of a licensed attorney. To that end, the Court will consider Plaintiff's brief, despite his failure to follow the rules of procedure. Nonetheless, as described more fully below, the Court finds that Defendant has shown that no reasonable jury could find in favor of Plaintiff on his claims of discrimination or retaliation under the ADA and KAAD.

IV. Uncontroverted Facts

Plaintiff failed to follow the federal and local rules in his summary judgment briefing, despite being provided with notice of the Court's rules and guidelines both in the Scheduling Order, and by Defendant under D. Kan. Rule 56.1(f). Plaintiff's failure to follow the local rule on presenting his factual matter on summary judgment is particularly problematic in this case given the voluminous factual record, and the sheer amount of factual recitations in the briefs. Despite Defendant's best efforts, the Court has expended significant effort in order to reconcile the 167 statements of fact presented by these parties. While the Court construes Plaintiff's briefs liberally, the Court must deem admitted those facts to which Plaintiff wholly failed to respond or otherwise controvert with record evidence that could be presented in an admissible form at trial. Moreover, to the extent Plaintiff purports to controvert facts without specifically citing to appropriate factual material in the record, those facts will be deemed admitted as well. Finally, the Court disregards legal argument presented by either party in their statements of fact, and only considers those facts that are material to issues raised in the motions.

The following material facts are uncontroverted or stipulated to for purposes of summary judgment. Plaintiff Harold Nyanjom was hired by Defendant's predecessor company on January 22, 1999, and was classified as a Sheet Metal Assembler in Department 651, Job Code 021, Labor Grade 6. The job description for a sheet metal assembler at HBC provides:

This occupation requires the assembling and/or installation of component parts, and large and small assemblies to conform to blueprint specifications. May involve work on parts or assemblies on several models of aircraft, all within a given work period. Assumes full responsibility for all job assignments handled.[25]

The job description provides a list of operations that are typical of those required to be performed, including drilling, creating various aircraft assemblies, and using a variety of tools such as a drill, rivet gun, rivet hammer, countersink, and measuring device. Throughout his employment, plaintiff was an employee at will.

Plaintiff has a congenital vision deficiency which was known to HBC when it hired Plaintiff in 1999. He has been virtually blind in his left eye since birth, and is only able to perceive light in that eye. The vision in his right eye is reduced, but is correctable with eye glasses to 20/20. Plaintiff's vision deficiency does not affect his ability to hear, speak, breathe, learn, stand, sit, bend, communicate, lift, reach, sleep, eat, think, or concentrate. His visual impairment does impact his ability to read; he either reads large-print materials or holds printed material close to his face.

Collective Bargaining Agreement

Since 1939, the International Association of Machinists and Aerospace Workers ("IAM") has represented a sizeable portion of the hourly-compensated workers employed by Defendant. At all times material, Defendant was a party to a collective bargaining agreement with the IAM that became effective on August 4, 2008 and expired on August 7, 2011. The terms of that agreement define the company's obligations with regard to employees within the bargaining unit, including pay, benefits, work hours, rest periods, overtime pay, recalls, seniority, promotions, grievances, discipline, and job transfers. At all times throughout his employment, Plaintiff was assigned to jobs that were governed by the collective bargaining agreement. The collective bargaining agreement provided that when there is a reduction in force or layoff, employees in the affected department with less seniority are the ones laid off or reduced, while the more senior employees are retained.

Under the agreement:

When employees are laid off from their present department and exercise their seniority to return to their intermediate or home department in accordance with this Section, they will administratively be placed on the shift that they held at the time they left their intermediate or home department. The returning employees will then utilize their seniority for purposes of shift preference.[26]

An employee who is laid off from his current department may exercise their seniority in prior departments and "bump" out less senior employees there. Plaintiff's seniority date is January 22, 1999.

The collective bargaining agreement also includes provisions on Occupational Safety and Health. It requires employees to wear goggles when assigned to "operations involving eye hazards." "If in doubt, wear goggles. This safety equipment is furnished free of charge by the Company and can be obtained from the tool crib."[27] Defendant provides safety goggles that meet the American National Standards Institute standard for high impact-resistant eye protection. All employees and visitors on the shop floor are required to wear this safety equipment.

Plaintiff's Job Classification History

Plaintiff worked as a Sheet Metal Assembler from his hire date on January 22, 1999 until March 25, 2002. During this time, he progressed from a Labor Grade 8 to 5. He was then reclassified as a CNC Rivet Machine Operator and worked in that position until June 2, 2003, when he was reclassified back to a Sheet Metal Assembler until January 1, 2007, in Department 655. During this time period, Plaintiff primarily wrote tags identifying nonconforming parts. On January 1, 2007, Plaintiff was reclassified as an Assembly Inspector and worked as either an Assembly Inspector or Conformity Inspector until November 2009. This was a lateral transfer for which Plaintiff had applied. As an assembly inspector, Plaintiff continued his work tag writing, as that task was absorbed by the inspection department.

The aviation industry suffered a substantial downturn due to economic factors beginning in 2008. As a result, there were a series of reductions in force ("RIFs"), which eventually caused thousands of HBC employees to lose their jobs. Defendant closed its facilities in Salina, Kansas and Little Rock, Arkansas. Plaintiff was generally aware of the downturn in the industry, and received letters from management informing employees that there were likely to be layoffs.

On November 10, 2008, there was a layoff that Plaintiff survived because he was "bumped" instead of laid off. He transferred back to an Assembly Inspector position in Department 378. Plaintiff worked as an Assembly Inspector until November 30, 2009, when he was again bumped instead of laid off; he had rights to bump back to Department 655 as a Sheet Metal Assembler. He performed all of the traditional duties of a Sheet Metal Assembler until May 3, 2010. He worked during this time in the Government Business building, one of the newer buildings at the facility. Plaintiff testified in his deposition that during this time he requested accommodations to protect his eyes, meeting with his team leader Pete Senecal, his supervisor, William Cotman, and IAM representative Steve Reist. He requested extra lighting, magnification devices, large print, magnification on the computers he used, and an assistant. In terms of lighting, Plaintiff specifically requested more freestanding lamps and better overhead lighting.

Defendant provided Plaintiff with various protective eyewear, including oversized goggles and a visor, and although he testified that he was unaware of any other protective eyewear that would work better than the polycarbonate lenses with side shields that he had been wearing, he stated that he believed those lenses were inadequate to protect his eyes.

Plaintiff applied for Social Security disability benefits in February 2010, on the basis of his vision impairment. The Social Security Administration ("SSA") denied Plaintiff's application, noting that he was working every day. Plaintiff believed that he could work part-time and collect Social Security benefits, although he never applied for a part-time position and admits he misunderstood the rules about employment in relation to obtaining Social Security benefits.

Communications with Plaintiff's Optometrist

On March 17, 2010, Plaintiff wrote his optometrist, Dr. Amy Goertz, stating that he worked in sheet metal assembly, and that

my employer has requested that you please provide a list of restrictions so that they may evaluate my case as a disabled employee: 1. Current diagnosis, treatment and outcomes. 2. Current registration as a permanently disabled citizen. If you don't mind, I would like to schedule an appointment with you... to discuss the issue.[28]

Previously, Dr. W. Chris Arensberg, Dr. Goertz's partner, wrote a letter "To Whom it May Concern" on Plaintiff's behalf, stating that he had examined Plaintiff on March 5, and that Plaintiff's best corrected vision is 20/20 in the right eye. He stated further that "[a] vitreous detachment is ...


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