Coleman v. Blue Cross Blue Shield of Kan.

487 F.Supp.2d 1225

Cecile Denise COLEMAN, Plaintiff, v. BLUE CROSS BLUE SHIELD OF KANSAS, Defendant.

No. 05-4149-JAR.

United States District Court, D. Kansas.

May 16, 2007.

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David O. Alegria, McCullough, Wareheim & Labunker, P.A., Topeka, KS, for Plaintiff.

Lora M. Jennings, Terry L. Mann, Martin, Pringle, Oliver, Wallace & Bauer, LLP, Wichita, KS, Stacy A. Jeffress, Blue Cross and Blue Shield of Kansas, Inc., Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

ROBINSON, District Judge.

Plaintiff Denise Coleman filed this action against her former employer, Blue Cross Blue Shield of Kansas ("Blue Cross"), asserting that she was unlawfully terminated from her position as a data capture employee on August 17, 2004. Plaintiff alleges the following claims for relief: (1) interference under the Family Medical Leave Act ("FMLA"); (2) retaliation under the FMLA; (3) intentional discrimination under the Americans with Disabilities Act ("ADA"); (4) retaliation under the ADA; and (5) worker's compensation retaliation under Kansas law. The Court now considers defendant's Motion for Summary Judgment (Doc. 58), defendant's Motion to Strike Plaintiff's Response to Defendant's Motion for Summary Judgment (Doc. 72), and plaintiff's Motion to Amend/Correct Memorandum in Opposition to Motion (Doc. 79). The motions are fully briefed and the Court is prepared to rule. As explained more fully below, the Court denies defendant's motion to strike the response, denies plaintiff's motion to amend the response, and grants defendant's motion for summary judgment.

I. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."¹ A fact is only material under this standard if a dispute over it would affect the outcome of the suit.² An issue is only genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party."³ The inquiry essentially determines if there is a need for trial, or whether the evidence "is so one-sided that one party must prevail as a matter of law."⁴

The moving party bears the initial burden of providing the court with the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact.⁵ "A movant that will not bear the burden of persuasion at trial need not negate the nonmovant's claim."⁶ The burden may be met by showing that there is no evidence to support the nonmoving party's case.⁷ If this initial burden is met, the nonmovant must then "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."⁸ When examining the underlying facts of the case, the Court is cognizant that all inferences must be viewed in the light most favorable to the nonmoving party and that it may not make credibility determinations or weigh the evidence.⁹

When deciding a summary judgment motion, the Court may consider evidence submitted even if it would not be admissible at trial. The Tenth Circuit recently explained,

Parties may; for example, submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form. Nonetheless, "the content or substance of the evidence must be admissible." Thus, for example, at summary judgment courts should disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form. The requirement that the substance of the evidence must be admissible is not only explicit in Rule 56, which provides that "[s]upporting and opposing affidavits shall ... set forth such facts as would be admissible in evidence," Fed.R.Civ.P. 56(e), but also implicit in the court's role at the summary judgment stage. To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.¹⁰

II. Motion to Strike and Motion to Amend/Correct Response Memorandum

On February 12, 2007, after obtaining three extensions of time from the Court, plaintiff filed her memorandum in opposition to summary judgment (Doc. 71) (hereinafter "response"). The third section of the response is entitled "Plaintiff's Response to Defendant's Alleged Statement of Facts" and spans about nineteen pages. While it includes numbered paragraphs which correlate to defendant's statement of facts, only three of the ninety-one paragraphs provide a citation to the summary judgment record for support.¹¹ The argument and authorities section of the response, spanning about forty-two pages, includes a review of evidence that is not cited nor discussed in the response to defendant's statement of facts.

The day after plaintiff responded to defendant's motion for summary judgment defendant filed a motion to strike the response (Doc. 72). The basis for the motion is that the response exceeds the page limitation set forth in D. Kan. R. 7.1, the April 16, 2006 Scheduling Order, and the Pretrial Order. Furthermore, the reply memorandum argues that plaintiff's response to defendant's statement of facts is deficient under applicable rules, and thus, the facts as stated in defendant's memorandum in support of summary judgment should be deemed admitted. Specifically, defendant complains that: (1) plaintiff's counsel's responses to the statement of facts do not contain citations to the record for support; and (2) much of the response relies upon plaintiff's own affidavit which contains primarily inadmissible evidence, or in some areas constitutes a "sham affidavit" because it contradicts her deposition testimony. The Court will address defendant's arguments concerning plaintiff's affidavit in the next section of this memorandum and order.

Plaintiff's counsel does not deny that he exceeded the page limit for his brief by twelve pages. Nor does plaintiff's counsel deny that he has ignored the rules applicable to memoranda in response to summary judgment motions as set forth in Fed.R.Civ.P. 56 and D. Kan. R. 56.1. Instead, counsel urges the Court that these deficiencies have caused no prejudice to defendant and should not only be excused, but that he should get a "second bite at the apple" by amending his response eleven weeks after the original response was filed and over six weeks after the reply was filed. The Court cannot countenance such a result.

The Court declines to quote extensively for counsel the rules that govern summary judgment practice not only in this Court, but in all federal courts.¹² The Court has done so in the past with this counsel to no avail.¹³ Counsel for plaintiff is not unfamiliar with these rules, nor is he new to the practice of law in this Court. While the Court appreciates counsel's apologies, it is his very experience with this Court and this federal district that makes many of his arguments concerning his failure to adhere to the rules disingenuous.

For example, in the response to defendant's motion to strike, counsel argues that he should, after the fact, be granted leave to exceed the page limit. He contends that this is because both parties have conceded that the issues in this case are lengthy and complex, making them difficult to address within the thirty-page limit set forth in the local rules. The Court fails to see the difficulty for counsel in seeking prior leave of Court to exceed the page limit on such grounds. Instead, counsel asks the Court to either, post hoc allow him leave to exceed the page limit, or to somehow allow him to "remove factual statements from the arguments and authorities section and include them as an exhibit."¹⁴ The technical deficiencies in the summary judgment response identified by defendant are inextricably intertwined. Had counsel simply followed the rules applicable to summary judgment motion practice, such a result would be unnecessary. Certainly if the statements to which counsel refers are truly arguments, they are inappropriate for an exhibit.¹⁵ And if they are instead factual statements, they should have been included in the response to defendant's statement of facts, or in plaintiff's additional statement of facts. Such statements would not count toward the thirty-page limit.

Counsel further argues that defendant has not suffered prejudice as a result of these admitted deficiencies. In terms of exceeding the page limit, counsel maintains that "[t]he 12 pages of verbatim testimony can be just as much part of plaintiff's answer outside the section regarding arguments. In fact, defendant's attachments to its motion have several hundreds of pages more than plaintiff's attachments."¹⁶ Again, such an argument is a disingenuous attempt by counsel to somehow justify blatant disregard for the rules of practice and procedure. First, the obvious reason behind the rule requiring specific citation to the record is so the Court is not required to conduct a fishing expedition of the record. By specifically citing to the record, the Court can immediately refer with particularity to the evidence claimed to support a particular point. So long as such references are available to the Court, the volume of evidence is irrelevant. Given that these verbatim quotations are not included, even by reference, in plaintiff's response to the statement of uncontroverted facts, the Court does not see how these would create a genuine issue of material fact, regardless of the page limitation issue.

Counsel also suggests that he is somehow entitled to a...