United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC
F. MELGREN, UNITED STATES DISTRICT JUDGE
Plaintiff
James Lee Lister, proceeding pro se, claims that Western
Industries Corporation (âWesternâ) discriminated against him
because of his race in violation of 42 U.S.C. § 1981. Before
the Court are the parties' respective motions for summary
judgment. Lister also moves the Court to strike some of the
evidence submitted by Western. For the reasons explained
below, the Court denies the Motion for Summary Judgment by
Plaintiff James Lee Lister (Doc. 87), grants the Motion for
Summary Judgment by Defendant Western Industries Corporation
(Doc. 88), and grants the Motion to Strike [95-1] Exhibit A:
Scott Declaration by Plaintiff James Lee Lister (Doc. 97).
I.
Factual and Procedural Background
A.
Local Rules for Summary Judgment
In
addition to the Federal Rules of Civil Procedure, the
District of Kansas Local Rules set forth specific
requirements for summary judgment motions. Under D. Kan. Rule
56.1, a memorandum 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.”[1] Furthermore,
“[a]ll 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.”[2] The rule further states that:
A memorandum in opposition to a motion for summary judgment
must begin with a section containing a concise statement of
material facts as to which the party contends a genuine issue
exists. Each fact in dispute must be numbered by paragraph,
refer with particularity to those portions of the record
upon which the opposing party relies, and if applicable,
state the number of movant's fact that is
disputed.[3]
Lister
is proceeding pro se, and the Court must afford him some
leniency in his filings.[4] A pro se litigant, however, is still
expected to “follow the same rules of procedure that
govern other litigants.”[5] Here, Western's statement of
facts contained 50 paragraphs of facts with citations to the
record. Lister's Response opposing summary judgment
objects to many of Western's facts, but Lister fails to
controvert Western's facts with citations to the record.
Some of Lister's objections simply challenge the
admissibility of Western's evidence or argue that the
evidence cited does not support the stated fact. Furthermore,
the statement of facts contained in Lister's Motion for
Summary Judgment contains very few citations to the record.
It is not the Court's responsibility to scour the record
on Lister's behalf to seek evidence contradicting
Western's facts or supporting Lister's
facts.[6] To the extent that a statement of fact by
Western cites admissible evidence that supports its
contention, the Court deems those facts admitted.
B.
Facts
In
October 2015, Lister (who is black) was hired by Manpower, a
national staffing service that connects temporary workers
with employers. In November 2015, Manpower assigned Lister to
a temporary position with Western as a Laborer/Saw Operator
in Wichita, Kansas.[7] Western's temporary workers were
assigned to various jobs, including working on a saw crew,
which involved using a large saw machine to cut wood and
stack it on a pallet. The saw operator is responsible for
operating the machine from the control panel. Due to the size
of the machine, the saw operator cannot determine whether a
worker or debris is near the saw blade-which is located in
the machine's middle section-while standing at the
control panel. For that reason, the saw operator is required
to yell “clear” before starting the saw. One of
the other members of the saw crew is required to visually
inspect the saw area and yell “clear” or
“all clear” in response. According to
Western's safety policies and procedures, workers must
walk around the machine to ensure the saw is free of debris
and clear of workers before giving the “all
clear.” Western's supervisors emphasized this
safety protocol during training, and Lister received this
training his first day on the job.
On
January 19, 2016, Lister was assigned to a saw crew with two
other temporary workers, Edward Huckabey (who is white) and
John Cooper. Huckabey was the saw operator. Around noon, the
saw crew stopped the machine to perform maintenance on the
saw blade. After concluding the maintenance, Huckabey
returned to the machine's control panel and either yelled
“clear?” or “are you guys ready?”
Lister responded, “all clear.” But Lister, who
standing on the opposite side of the machine as the control
panel, did not walk around the machine to verify that the saw
blade in the middle of the machine was, in fact, clear. When
Huckabey turned on the saw he immediately heard Cooper shout
and turned off the saw. Cooper was still in the middle of the
machine and the blade cut Cooper's boot but did not cause
any physical injury to Cooper.
James
Glennie, the plant manager, was in his office during the
incident and approached the saw crew to determine what
happened. Glennie states in a sworn declaration that he asked
Lister if he walked around the machine to ensure that the saw
was safe to turn on before yelling “clear.”
According to Glennie, Lister responded, “I guess
not.” According to Lister, he told Glennie that when he
yelled “all clear” he was referring to the back
of the saw area only. Glennie also stated that it was his
perception that Huckabey was visibly shaken following the
incident while Lister appeared to be indifferent and
unsympathetic.
The
parties offer slightly different versions of what happened
next. According to Western, Glennie then told Lister to clock
out and leave the premises. Huckabey then requested an
additional conversation with Glennie in his office, during
which Huckabey explained that he followed safety protocol by
relying on Lister's statement that the machine was clear.
Glennie then confirmed with another worker, Kayla Brown, who
was working nearby, that Lister gave the “all
clear” before Huckabey turned the saw on. Having
confirmed that Lister was the only worker who violated safety
protocol, Glennie contacted Manpower and told them to end
Lister's temporary assignment with Western. Glennie did
not request that Manpower end Lister's employment with
Manpower.
According
to Lister, Glennie initially stated something to the effect
of “that's a safety violation” and
“I'm going to have to fire you both.” Lister
states that Huckabey told Glennie that he could not be fired
because he had a family to support. Glennie then told
Huckabey to stay and they would talk in the office. When
Lister told Glennie that he also had a family to support,
Glennie maintained that Lister was fired and encouraged him
to leave.
Both
parties filed a motion for summary judgment on Lister's
sole remaining claim: race discrimination in violation of 42
U.S.C. § 1981. Western's Motion argues that it is
entitled to judgment as a matter of law for two reasons,
argued in the alternative. First, Western argues that
Manpower, not Western, is Lister's employer and that
Western should not be treated as Lister's employer under
the Tenth Circuit's joint-employer test. Second, Western
argues that Lister fails to meet his burden to show that he
suffered an adverse employment action and that Western's
legitimate, non-discriminatory reason for its actions was
pretext for race discrimination. Lister's Motion includes
an argument section that states the legal standard for
summary judgment, provides legal authority addressing basic
elements of a § 1981 claim, and discusses Lister's
efforts to mitigate his damages by applying for jobs after
leaving Western. Other than citations to legal authority,
Lister's Motion does not provide any analysis for why
Lister is entitled to judgment as a matter of law.
Lister's
Response to Western's Motion asks the Court to strike
from the record any statements made by Huckabey and Brown on
the basis that these comments constitute impermissible
hearsay. Additionally, Lister separately filed a Motion to
Strike a Declaration by Ezra Scott, Manpower's Business
Process Owner. Western's Motion for Summary Judgment
attached as an exhibit business records from Manpower that,
Western asserts, shows that Manpower offered Lister other
work assignments after his position with Western that Lister
turned down. Lister, however, argues that the business
records do not actually reflect that Lister was offered these
positions. He argues they only reflect that Lister applied
for more jobs with Manpower. To rebut Lister's
contention, Western's Reply included the Scott
Declaration, which states that in 2018 Manpower offered
Lister a temporary position that Lister turned down. Lister
now argues that the Court should strike the Scott Declaration
because it was provided after the close of discovery, it is
vague, and it violates the sham affidavit doctrine.
The
Court has reviewed the record and the parties' pleadings
on all three pending motions. The Court now rules as follows.
II.
Legal Standard
A.
Summary Judgment
Summary
judgment is appropriate if the moving party demonstrates that
there is no genuine issue as to any material fact, and the
movant is entitled to judgment as a matter of
law.[8]
A fact is “material” when it is essential to the
claim, and issues of fact are “genuine” if the
proffered evidence permits a reasonable jury to decide the
issue in either party's favor.[9] The movant bears the initial
burden of proof, and must show the lack of evidence on an
essential element of the claim.[10] The nonmovant must then
bring forth specific facts showing a genuine issue for
trial.[11]These facts must be clearly identified
through affidavits, deposition transcripts, or incorporated
exhibits-conclusory allegations alone cannot survive a motion
for summary judgment.[12] The Court views all evidence and
reasonable inferences in the light most favorable to the
party opposing summary judgment.[13]
III.
Analysis
A.
Lister's Motions to Strike
As a
preliminary matter, Lister's Response to Western's
Motion for Summary Judgment requests that the Court strike
any statement made by Kayla Brown and Edward Huckabey on the
basis that such statements are inadmissible hearsay. The
Response also asked the Court to strike James Glennie's
Declaration because it contained hearsay and violated the
sham affidavit doctrine. Lastly, Lister filed a separate
Motion to Strike Ezra Scott's Declaration, which Western
attached to its Reply, on the basis that it was untimely,
vague, and in violation of the sham affidavit doctrine.
Under
Federal Rule of Evidence 801(c), “ ‘Hearsay'
means a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted
in the statement.”[14] James Glennie's Declaration
states that following the January 19 incident, Glennie spoke
with both Huckabey and Brown. Glennie states that Huckabey
gave him basic information about the incident, including that
Huckabey yelled “clear” asking for the responsive
“all clear” to let him know it was safe to turn
on the saw, that he received the “all clear” from
Lister, that Huckabey turned on the saw, and that he
hurriedly turned off the saw after he heard Cooper shouting.
Glennie states that Brown, who was working nearby, informed
Glennie that she heard Lister give the “clear”
signal before Huckabey turned on the machine.
Western
argues that Huckabey and Brown's statements are not
hearsay because they are not offered to prove the truth of
the matter asserted: that Lister yelled “all
clear” before Huckabey started the machine. Indeed,
Lister's own deposition testimony establishes this fact.
Rather, the purpose of Huckabey and Brown's statements is
to show Glennie's state of mind when he decided to end
Lister's temporary assignment and to keep Huckabey on the
job. The Court agrees with Western that statements by
Huckabey and Brown are not hearsay.[15] Thus, Lister's
request to strike them is denied.
Lister
also requests that the Court strike James Glennie's
Declaration. Lister argues that Glennie's declaration
contains hearsay and is not based on personal knowledge; he
also indicates that Glennie's affidavit runs afoul of the
sham affidavit doctrine. Lister does not indicate which
statements contained in Glennie's affidavit he objects to
based on lack of personal knowledge. As the Court already
indicated, Glennie's inclusion of statements by Huckabey
and Brown are not hearsay because they are not offered to
prove the truth of the matter asserted in those statements.
With regard to the sham affidavit doctrine, this doctrine
“is based on the premise that courts may disregard an
affidavit that conflicts with an affiant's prior sworn
statements if circumstances show the affiant is merely
seeking to create a sham dispute by contradicting his own
testimony.”[16]Courts generally apply this doctrine
“only in clear and extreme circumstances, such as where
an affidavit is flatly contrary to the affiant's prior
testimony.”[17] Here, Lister does not provide any prior
sworn testimony by Glennie that he later contradicts. Thus,
the Court finds no reason to strike Glennie's
Declaration.
Finally,
Western's Reply to its Motion for Summary Judgment
included a Declaration by Ezra Scott, Manpower's Business
Process Owner. Scott stated that Manpower offered Lister a
work assignment in 2018, thereby contradicting the position
that Lister takes in his Response that Manpower never offered
Lister another work assignment after Western ended his
position. Lister filed a separate Motion to Strike the Scott
Declaration, arguing that Western failed to submit the
declaration in accordance with the Court's discovery
deadlines, that the Scott Declaration was impermissibly
vague, and that the Declaration violated the sham affidavit
doctrine.
Western
agrees with Lister that the Scott Declaration was submitted
after the close of discovery. Western argues, however, that
the Scott Declaration falls within the documents and
witnesses disclosed during discovery because Western's
Supplemental Rule 26 Disclosures to Lister stated that it
would rely on “Plaintiff's employment records
produced by custodians or records in response to
Defendant's business records subpoenas” and
“[a]ll witnesses necessary for rebuttal or
impeachment.” Western argues that the Scott Declaration
simply rebutted the position that Lister took in his Response
that Manpower never offered him another work assignment.
Western's Response, however, simply cites the docket
entry where Western certified that it served its Supplemental
Rule 26(a) Disclosures to Lister. The docket entry does not
include the disclosures, and Western did not attach them to
its Response. So, Western's Supplemental Rule 26(a)
Disclosures are not available for the Court to review.
Additionally, Western's purpose in attaching the Scott
Declaration is to show that Manpower offered Lister a
temporary work assignment in 2018; Western argues that this
demonstrates that Lister did not suffer an adverse employment
action. As the Court will explain below, even if Manpower did
offer Lister another ...