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Appleby v. Board of County Commissioners of Douglas County

United States District Court, D. Kansas

January 24, 2018

KYLE A. APPLEBY, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, KANSAS, Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion to Determine Sufficiency of Plaintiff's Responses to Defendant's Requests for Admission (ECF No. 46). On January 12, 2018, the Court convened a pretrial conference to address both pretrial matters and any pending motions, including the instant motion (see Order, ECF No. 54). Plaintiff appeared through counsel, Michael Stipetich. Defendant appeared through counsel, Michael Seck and Bradley R. Finkeldei. After consideration of both the arguments of counsel and the parties' briefing, the Court DENIED Defendant's Motion (ECF No. 46) during the pretrial conference. The previously-announced ruling of the Court is now memorialized below.

         I. Background[1]

         This is an employment case, arising from what plaintiff Kyle Appleby believes was Defendant's unlawful failure to promote him. In May 2015, Plaintiff, a Corrections Officer for the Douglas County Sheriff's Office and Correctional Facility, applied for a promotion to Deputy. He was promoted, but the advancement was contingent on his completion of the Lawrence Police Department Basic Recruit Academy. Plaintiff claims that, during his Academy training, he was the target of offensive comments and more severe criticism than other recruits. Additionally, Plaintiff contends his male superiors at Douglas County sent derogatory messages about him to the Academy trainers. Although the parties disagree on whether Plaintiff actually completed the training program, he was not allowed to graduate from the Academy, and returned to his position as a Corrections Officer.

         Plaintiff then filed this lawsuit, claiming he was demoted, at least in part, as retaliation for a back injury he suffered during his Academy training. He contends that, because he may bring a future Workers' Compensation claim, demotion resulting from his work-related injury violates public policy. In addition to this claim, he contends he was treated less favorably than similarly-situated females, and was perceived by Defendant to be “insufficiently masculine.” (Compl., ECF No. 1 at 8.) And, he contends his demotion was a result of illegal discrimination based on “sex stereotypes.” (Id.)

         Defendant, Board of County Commissioners of Douglas County, Kansas, denies legal responsibility for Plaintiff's demotion. It also claims Plaintiff was demoted for legitimate, non-discriminatory reasons, and it is not vicariously liable for the conduct of the sheriff's office employees.

         Plaintiff filed his case in February 2017. This case has progressed smoothly through discovery, with the exception of the instant motion. After Defendant filed its motion, and Plaintiff responded, the Court held the pretrial conference, during which time the Court discussed the pending motion with counsel.

         II. Defendant's Motion to Determine Sufficiency of Plaintiffs' Responses (ECF No. 46)

         The dispute between the parties centers on Request Nos. 1 through 6 of Defendant's Requests for Admission (ECF No. 46, Exs. A, B). All of the disputed requests ask Plaintiff to admit that each of six different police reports from various officers with the City of Lawrence is “a genuine copy of the document maintained in the ordinary course of business by the City of Lawrence, Kansas Police Department.” (Id.)

         Plaintiff initially answered each request by admitting the title of each document, and noting the reports were produced by a non-party, the City of Lawrence Police Department, pursuant to a subpoena. He denied each report was “maintained in the ordinary course of business” due to the “circumstances of its preparation.” He contends the reports were actually created after his demotion, and concluded each of his responses with the following statement, “Plaintiff has made a reasonable inquiry and lacks sufficient knowledge or information to enable him to admit or deny the remaining matters stated, and Plaintiff therefore denies the same.” (ECF No. 46, Ex. A.)

         After the parties conferred, Plaintiff later amended his responses to include this statement, “The document was produced by a non-party and it was never in Plaintiff's possession, custody or control. Plaintiff has made a reasonable inquiry and he lacks sufficient knowledge or information to enable him to admit or deny the genuineness of this document pursuant to Fed.R.Civ.P. 36(a)(1)(B), and he therefore denies the same.” (ECF No. 46, Ex. B.)

         A. Compliance with D. Kan. Rule 37.2

         Throughout the briefing, and during the January 12 pretrial conference, the parties demonstrated their attempts to resolve their differences. Therefore, the Court is satisfied they have sufficiently conferred as required by D. Kan. Rule 37.2 and Fed.R.Civ.P. 37(a)(1). Despite their attempts, the parties could not agree regarding the sufficiency of Plaintiff's responses, which led to Defendant's motion.

         B. ...


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