Lister v. Western Industries Corp.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         Plaintiff James Lee Lister, proceeding pro se, claims that Western Industries Corporation (“Western”) 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 ...