Lewis v. Four B Corp.

Full title: ANTHONY LEWIS, Plaintiff, v. FOUR B CORPORATION, et al., Defendants

Court: United States District Court, D. Kansas

Date published: Apr 12, 2005

Case No. 04-4134-RDR (D. Kan. Apr. 12, 2005)

Opinion

Case No. 04-4134-RDR.

April 12, 2005

MEMORANDUM AND ORDER

RICHARD ROGERS, Senior District Judge

This is an employment discrimination action brought by plaintiff pro se pursuant to Title VII of the Civil Rights Act of 1964. Defendants are Four B Corporation, Ron Giangreco and Tom Wiseman. This case is now before the court upon plaintiff's motion for summary judgment.

The well-known standards governing summary judgment motions are summarized in the case of Kennedy v. General Motors Corp., 226 F.Supp.2d 1257, 1261 (D.Kan. 2002):

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that [he] is "entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10^th Cir. 2002). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10^th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10^th Cir. 1998)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . . .

The movant must attempt to meet his burden by pointing "to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10^th Cir.) cert. denied, 506 U.S. 1013 (1992). The Rules of Practice and Procedure for the District of Kansas require that the brief in support of a summary judgment motion refer with particularity to the portions of the record that support the material facts alleged to beyond genuine dispute. Local Rule 56.1(a).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis Co., 256 F.3d 1013, 1017 (10^th Cir. 2001). Rather, the nonmoving party must "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." Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197-98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Adams, 233 F.3d at 1246.

Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).

Kennedy, 226 F.Supp.2d at 1262.

Plaintiff's memorandum in support of his motion for summary judgment does not refer to the parts of the record which support the list of uncontroverted facts he has included in the memorandum. More critically, plaintiff has not referred to facts in the record that demonstrate beyond genuine dispute that he has been discriminated against or retaliated against in violation of Title VII. The court agrees with defendants that summary judgment is premature at this stage where the discovery process has hardly begun. See Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521 (10^th Cir. 1992). "Summary judgment should not be granted where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Id. (interior quotation omitted).

Therefore, the court shall deny plaintiff's motion for summary judgment.

IT IS SO ORDERED.