United States District Court, D. Kansas
CLARA R. FULLER, Plaintiff,
STATE OF KANSAS, DEPARTMENT OF CHILDREN & FAMILIES, Defendant.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
plaintiff Clara R. Fuller brings this lawsuit against her former
employer, the Kansas Department of Children and Families
(“DCF”). Plaintiff alleges that DCF terminated
her employment because of her race, violating Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§
matter comes before the court on several motions filed by
each party, including DCF’s Motion for Summary Judgment
(Doc. 140). For reasons explained below, the court grants
DCF’s Motion for Summary Judgment. And, the court
dismisses the case.
DCF’s Motion for Summary Judgment
turning to the substance of DCF’s Motion for Summary
Judgment against plaintiff’s Title VII claim, the court
considers two motions plaintiff has filed that address the
summary judgment briefing.
Plaintiff’s Motion for Reconsideration
23, 2019, DCF filed its Motion for Summary Judgment. Doc.
140. Our court’s local rules required plaintiff to file
her Memorandum in Opposition to the Motion within 21 days. D.
Kan. Rule 6.1(d)(2). On May 28, 2019, plaintiff filed a
Motion for Extension of Time. Doc. 143. Plaintiff’s
motion asked the court for an extension of time to respond to
DCF’s Motion for Summary Judgment, but it never
specified the amount of time she was seeking. Nevertheless,
the court granted plaintiff’s Motion for Extension of
Time and extended her response time from June 13, 2019 to
June 24, 2019. Doc. 145. And, consistent with the
court’s Order, plaintiff filed a Response to
DCF’s Motion for Summary Judgment on June 24, 2019.
before filing that Response, on June 14, 2019, plaintiff
filed a “Motion for Reconsideration for an Extension of
Time to Respond to Defendant’s Summary Judgment.”
Doc. 146. This motion is difficult to understand. It appears
to respond to the court’s Order granting
plaintiff’s Motion for Extension of Time because it
explains why plaintiff neglected to cite and follow the local
rule when she sought an extension of time in her original
motion. But the Motion for Reconsideration doesn’t ask
for more time to file a response to DCF’s Motion for
Summary Judgment. And indeed, plaintiff filed her Response on
June 24, 2019-the extended due date. Thus, the court denies as
moot plaintiff’s “Motion for Reconsideration for
an Extension of Time to Respond to Defendant’s Summary
Judgment” (Doc. 146).
Plaintiff’s Motion to Strike Exhibit Three
has filed a “Motion to Strike Defendants’ Exhibit
Three.” Doc. 148. Plaintiff’s motion asks the
court to strike one of the exhibits attached to DCF’s
Motion for Summary Judgment. And it invokes Fed.R.Civ.P.
12(f). Id. at 1. Rule 12(f) permits the court to
“strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f) (emphasis
added). Our court has refused to apply Rule 12(f) to strike a
reply and exhibits filed with the reply because this Rule
applies only to “pleadings.” Fox v. Pittsburg
State Univ., 258 F.Supp. 3d 1243, 1251 (D. Kan. 2017)
(citing Fed.R.Civ.P. 7(a) (listing documents considered
pleadings)); see also Williams v. Alpine Banks of
Colo., No. Civ. A. 05CV02475WDMME, 2006 WL 905333, at *2
(D. Colo. Apr. 7, 2006) (denying a motion to strike because
“[o]nly [the documents listed in Rule 7(a)] constitute
pleadings under the Federal Rules” and
“[m]otions, briefs in support of motions, responses to
motions, replies to responses to motions, and other papers
are not pleadings under the Federal Rules and cannot be
stricken by the [c]ourt under Rule 12(f)”).
of striking proffered summary judgment evidence, the
“better approach is for the court to consider each
[piece of proffered evidence] and, to the extent it may
assert a fact which is not admissible evidence, simply
exclude the requested fact from the court’s ultimate
findings.” Murray v. Edwards Cty. Sheriff’s
Dep’t, 453 F.Supp.2d 1280, 1284 (D. Kan. 2006)
(denying a motion to strike an affidavit on summary
judgment); see also Jones v. Barnhart, 349 F.3d
1260, 1270 (10th Cir. 2003) (affirming district court’s
evidentiary ruling that denied a motion to strike an
affidavit on summary judgment and, instead, “relied on
the declarations to the extent that they contained relevant
and admissible material, ignoring inadmissible and irrelevant
statements”); Nelson v. Allstate Ins. Co., No.
92-2309-JWL, 1993 WL 105120, at *6 (D. Kan. Mar. 8, 1993)
(denying a motion to strike an affidavit and holding that
“[i]f the affidavit contains material that is not
admissible or relevant, then it will be ignored by the
court.”). The court follows that approach here and thus
denies plaintiff’s Motion to Strike (Doc. 148).
the court rejects the substance of the argument plaintiff
advances in her motion- i.e., that Exhibit Three is
inadmissible evidence on summary judgment. Exhibit Three is a
chart summarizing information taken from two of DCF’s
employee productivity charts. Plaintiff asserts that Exhibit
Three is inadmissible because DCF didn’t produce the
chart during discovery. She contends “[t]his is the
first time Plaintiff has actually see[n] this exhibit in
this format.” Doc. 148 at 1 (emphasis added). With
this statement, plaintiff appears to concede that DCF has
produced the information that the chart summarizes, but just
in a different format. Indeed, DCF previously disclosed the
underlying productivity charts. DCF attached the productivity
charts as an exhibit to a motion that DCF filed on August 2,
2016-shortly after plaintiff filed this lawsuit. See
Doc. 11-3 (Aff. of Ronald Blaker & Exs. A & B). Also,
plaintiff has stipulated to the admissibility of the
underlying productivity charts “for purposes of summary
judgment and trial.” Doc. 139 at 6 (Pretrial Order
¶¶ 2.b.1., 2.b.2.).
argues that Exhibit Three is admissible evidence on summary
judgment under Fed.R.Evid. 1006. Rule 1006 allows a proponent
of evidence to “use a summary, chart, or calculation to
prove the content of voluminous writings . . . that cannot be
conveniently examined in court.” The Rule requires the
proponent to “make the originals or duplicates
available for examination and copying, or both, by other
parties at a reasonable time and place.” Id.
“Although the information upon which a Rule 1006
summary is created need not itself be admitted into evidence,
it must still be admissible.” United States v.
Channon, 881 F.3d 806, 810 (10th Cir. 2018) (citing
United States v. Irvin, 682 F.3d 1254, 1261 (10th
plaintiff never argues that DCF failed to disclose the
underlying data to her, or that the underlying data is
inadmissible evidence. To the contrary, the record shows that
DCF previously disclosed the productivity charts and the
parties have stipulated to their admissibility. See
Doc. 11-3; Doc. 139 at 6. Thus, the chart summarizing the
data from the underlying productivity charts is admissible
under Fed.R.Evid. 1006.
the court rejects plaintiff’s argument that Exhibit
Three is an untimely supplemental disclosure. Fed.R.Civ.P.
26(a)(3)(A)(iii) requires a party to “provide to the
other parties . . . an identification of each document or
other exhibit, including summaries of other
evidence-separately identifying those items the party
expects to offer [at trial] and those it may offer if the
need arises.” Id. (emphasis added). And
Fed.R.Civ.P. 26(a)(3)(B) requires a party to make such
disclosures “at least 30 days before trial.” So,
DCF had satisfied Rule 26’s disclosure requirement for
trial, but this motion is lodged at the summary judgment
Seventh Circuit has recognized, “Rule 1006 requires
only that the summarized documents be made available to the
opposing party at a ‘reasonable time’; it does
not say when the summaries must be made available to the
party-for that matter, it nowhere states that the summaries
must be made available to the opposing party.”
Fidelity Nat’l Title Ins. Co. v. Intercounty
Nat’l Title Ins. Co., 412 F.3d 745, 752 (7th Cir.
2005) (Posner, J.). But, the court continued, finding that
“[n]o federal rule is needed, however, to empower a
district judge to prevent a party from springing summaries of
thousands of documents on the opposing party so late in the
day that the party can’t check their accuracy against
the summarized documents before trial.” Id.
That’s not what happened here. DCF’s chart
summarizes just two pages of employee productivity reports.
Doc. 11-3 at 3–4 (Blaker Aff. Exs. A & B). And
plaintiff had plenty of time to review the summary
chart’s accuracy between the time when DCF filed its
Motion for Summary Judgment on May 23, 2019, and when
plaintiff filed her Response on June 24, 2019.
similar facts, the First Circuit held that a district court
did not err when, on summary judgment, it considered a
summary chart of the plaintiff’s “extensive
record of work attendance over her near two-decade period of
employment” because Rule 1006 “provides that only
the underlying documents, not the summaries themselves, must
be produced to the opposing party, ” and thus the
defendant “had no obligation to provide the charts to
[plaintiff].” Colon-Fontanez v. Municipality of San
Juan, 660 F.3d 17, 29–32 (1st Cir. 2011). For the
same reasons, the court concludes that Exhibit Three contains
admissible evidence on summary judgment.
after reviewing the information that Exhibit Three
summarizes, the court has noted a few errors.
Compare Doc. 11-3 at 3 (showing that employee F.S.
processed 64 applications and plaintiff processed one
application between January 19–22, 2019) with
Doc. 141-3 (showing that employee F.S. processed zero
applications and plaintiff processed five applications
between January 19–22, 2019). So, when deciding
DCF’s summary judgment motion, the court uses the
underlying employee productivity charts (Aff. of Ronald
Blaker & Exs. A & B) for the accurate information,
and not the summary chart.
DCF’s Motion for Summary Judgment
the court addresses the substance of DCF’s Motion for
following facts are either stipulated facts taken from the
Pretrial Order (Doc. 139), or uncontroverted for purposes of
DCF’s summary judgment motion.
year, the State of Kansas administers a Low Income Energy
Assistance Program (“LIEAP”). Doc. 11-4 at 1
(Kimmons Aff. ¶¶ 4–5). And each year, DCF
hires temporary Human Services Assistants to process
Applications for benefits under LIEAP. Doc. 139 at 4
(Pretrial Order ¶ 2.a.2.). The program runs every year
from mid-January through March. Kimmons Aff. ¶ 5. But
follow-up work for the program may require some temporary
employees to remain employed until May or June. Id.
2014, DCF hired plaintiff as a temporary employee and Human
Services Assistant for LIEAP. Pretrial Order ¶ 2.a.3.;
Doc. 11-2 at 1–2 (Locke Aff. ¶¶ 4–5).
During the 2014 LIEAP, plaintiff worked less than three weeks
processing applications. Pretrial Order ¶ 2.a.4. Later,
DCF transferred plaintiff to the Phone Bank because DCF
needed more assistance in that area. Id. ¶ 6.
2016, DCF rehired plaintiff for the 2016 LIEAP. Pretrial
Order ¶ 2.a.22. DCF hired plaintiff as a temporary LIEAP
Human Services Assistant in the Economic and Employment
Services (“EES”) department. Pretrial Order
¶ 2.a.28.; Locke Aff. ¶ 3. Shannon Connell and
Lewis Kimsey recommended that DCF rehire plaintiff in 2016.
Doc. 11-1 at 1 (Kimsey Aff. ¶ 3). Mr. Kimsey has served
as the LIEAP Manager since December 2013. Doc. 141-2 at 10
(Defs.’ Resp. to Pl.’s Interrog. No. 18).
Although plaintiff was not able to provide a reference from a
prior employer,  Mr. Kimsey accepted her earlier work
experience with the LIEAP in lieu of her providing a
reference. Kimsey Aff. ¶ 4.
LIEAP Human Services Assistants are hired as a “999
temporary employee, ” meaning that they cannot work
more than 999 hours within one year of their hire date. Locke
Aff. ¶ 5. For the 2016 LIEAP, only four temporary
employees were new hires. Kimsey Aff. ¶ 13. The initials
of the four new hires are N.D., B.B., P.L., and S.B.
Id. The rest of the temporary employees were
re-hires. Id. at ¶ 12. All employees in the
2016 LIEAP received the same training. Kimsey Aff. ¶ 20;
Doc. 11-5 at 2 (Henderson Aff. ¶ 11). Plaintiff received
training for the LIEAP during her first employment with DCF
in 2014, and again during her second employment in 2016. Doc.
141-1 at 4 (Pl.’s Resp. to Defs.’ Req. for Admis.
Henderson, a black female, was hired by DCF as a temporary
employee to serve as Human Services Assistant/Site Manager
for the 2016 LIEAP. Pretrial Order ¶¶ 2.a.11–
12.; Henderson Aff. ¶¶ 1, 5; Locke Aff. ¶ 7.
Like plaintiff, Ms. Henderson was a rehire for LIEAP.
Pretrial Order ¶ 2.a.27.; Henderson Aff. ¶ 7. And,
as a Site Manager, Ms. Henderson knew what appropriate
production levels were for employees, especially for
employees who had worked previously for LIEAP. Henderson Aff.
2016, DCF did not impose daily or weekly quotas on each LIEAP
employee or for the program as a whole, although DCF had used
a quota system in past years. Kimsey Aff. ¶ 18. But DCF
did collect processing and registration data for each LIEAP
employee, and it prepared weekly productivity reports for
those employees. Doc. 11-3 at 1 (Blaker Aff. ¶ 4). The
reports show both the number of processed applications and
the number of pending applications for each day and the total
for the week for each LIEAP employee. Kimsey Aff. ¶ 6.
Human Services Assistant Ronald Blaker prepared the weekly
productivity reports and submitted them to LIEAP Manager
Lewis Kimsey. Blaker Aff. ¶¶ 1, 4; Kimsey Aff.
¶ 11. Mr. Blaker began the process of tracking employee
productivity once DCF began taking applications and after
training had concluded. Doc. 141-2 at 8 (Defs.’ Resp. to
Pl.’s Interrog. No. 14).
2016, five of the 17 LIEAP employees were assigned other
duties in addition to their responsibilities to process and
register applications. Kimsey Aff. ¶¶ 6,
8–10; Henderson Aff. ¶ 9. For example, as
discussed above, Stephanie Henderson performed managerial
duties in her role as Site Manager. Kimsey Aff. ¶ 8;
Henderson Aff. ¶¶ 8–9. Employee M.H. was a
full-time DCF employee temporarily assigned to assist with
LIEAP, serving primarily as the filing clerk for the program.
Kimsey Aff. ¶ 14. Employee E.D. was assigned the mail
room and filing as his primary responsibilities. Id.
¶ 15. E.D. did not perform any processing and assisted
with registrations only as time permitted. Id.
Employee L.S. was the dedicated employee assigned to handle
applications received by facsimile or online, which is a more
time-consuming process. Doc. 141-2 at 9–10
(Defs.’ Resp. to Pl.’s Interrog. No. 17). And, as
discussed, Ronald Blaker was responsible for working with IT
to generate production reports. Kimsey Aff. ¶ 10;
Henderson Aff. ¶ 9. Also, Mr. Blaker was the “lead
worker” responsible for training, processing tough
cases, and specialty work. Kimsey Aff. ¶ 9; Blaker Aff.
¶ 5. His primary responsibilities were not processing
and registration. Kimsey Aff. ¶ 9.
employee productivity charts for January 19 to February 12,
2016 show that-among the 12 LIEAP employees who did not have
other job responsibilities-plaintiff had the second lowest
productivity numbers for both processed and registered
applications. Blaker Aff. Exs. A & B. Employee C.D.
registered two fewer applications than plaintiff.
Id. But he processed a total of 570 applications
compared to plaintiff’s 72 processed applications.
Id. C.D.’s combined number of processed and
registered applications was 828 applications compared to
plaintiff’s total of 332 applications. Id. The
employee with the lowest number of processed applications was
C.T. Id. DCF terminated C.T.’s employment on
February 12, 2016-the same day DCF terminated
plaintiff’s employment. Doc. 149-2 at 19 (Thomas Aff.