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Fuller v. State

United States District Court, D. Kansas

September 20, 2019

CLARA R. FULLER, Plaintiff,



         Pro se plaintiff Clara R. Fuller[1] 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. §§ 2000e–2000e-17.[2]

         This 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.

         I. DCF’s Motion for Summary Judgment

         Before 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.

         A. Plaintiff’s Motion for Reconsideration

         On May 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. Doc. 149.

         But, 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.[3] 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).

         B. Plaintiff’s Motion to Strike Exhibit Three

         Plaintiff 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)”).

         Instead 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).

         Also, 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.).

         DCF 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 Cir. 2012)).

         Here, 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.

         Also, 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 stage.

         As the 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.

         Under 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.

         But, 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).[4] 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.

         C. DCF’s Motion for Summary Judgment

         Now, the court addresses the substance of DCF’s Motion for Summary Judgment.

         1. Uncontroverted Facts

         The following facts are either stipulated facts taken from the Pretrial Order (Doc. 139), or uncontroverted for purposes of DCF’s summary judgment motion.[5]

         Every 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.

         In 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.

         In 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, [6] Mr. Kimsey accepted her earlier work experience with the LIEAP in lieu of her providing a reference. Kimsey Aff. ¶ 4.

         All 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. No. 14).

         Stephanie 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. ¶ 7.

         In 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.[7] Doc. 141-2 at 8 (Defs.’ Resp. to Pl.’s Interrog. No. 14).

         In 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.

         The 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. ...

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