Opinion
Civil Action No. 99-2172-GTV.
June 2, 2000.
Thomas E. Scherer, plaintiff, pro se.
Brian J. Finucane and Nancy M. Leonard, Bioff, Singer Finucane, Kansas City, MO, for GE Capital and GE Capital Credit Card Services, defendants.
MEMORANDUM AND ORDER
Plaintiff Thomas E. Scherer brings this action, alleging that defendant GE Capital terminated his employment, discriminated against him, failed to accommodate his disability, violated his right to engage in statutorily protected speech, created a hostile work environment, violated his confidentiality, failed to maintain separate medical records, and denied him disability benefits in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and discriminated against him on the basis of his gender in violation of Title VII. The case is before the court on defendant's Motion for Summary Judgment (Doc. 67), plaintiff's motions requesting summary judgment (Docs. 109, 125, 143, 146, 152, and 166), plaintiff's Motion for Reconsideration to "Plaintiff Objection to an Order — Petition for Review Before a Judicial Council" (Doc. 164), plaintiff's Notice of Appeal (Doc. 168), and plaintiff's Motion for a Stay (Doc. 174). For the reasons set forth below, defendant's Motion for Summary Judgment is granted, and plaintiff's motions are denied.
I. Factual Background
The following facts are either uncontroverted or based on evidence submitted in summary judgment papers and viewed in a light most favorable to the plaintiff. Immaterial facts and facts not properly supported by the record are omitted.
In February 1989, plaintiff began employment as a fraud investigator at Monogram Retailer Credit Card Services, a subsidiary of defendant. In April 1994, plaintiff accused a co-worker of cheating. A Loss Prevention Manager and a Fraud Unit Manager reviewed plaintiff's allegations, and determined that the co-worker had not cheated. Plaintiff continued to make accusations, however, and defendant issued him a final "disciplinary action notice." In June 1994, plaintiff requested a transfer away from the Loss Prevention Manager who reviewed the co-worker's files. Defendant denied plaintiff's transfer request, citing its policy prohibiting transfer of employees who are on disciplinary warning.
On June 16, 1994, plaintiff's attorney sent a letter to defendant discussing these events and noting that defendant was experiencing severe anxiety, such that he was under a doctor's care as a result of the events. The letter requested "that he be provided reasonable accommodations so that he can perform his job without experiencing additional emotional distress." Defendant denied the request.
In August 1994, plaintiff was involved in an incident involving a telephone conversation with a client during which plaintiff stated that the conversation was "stupid" and ultimately hung up on the client. Defendant terminated plaintiff's employment on September 7, 1994, for unprofessional behavior toward a co-worker and a client.
On December 31, 1997, plaintiff filed a complaint in this court alleging that defendant failed to reasonably accommodate his disability in violation of the ADA, and discriminated against him on the basis of his gender in violation of Title VII. See generally Case No. 1997-CV-2680-GTV ("the prior action"). On July 1, 1999, this court granted defendant's motion for summary judgment and closed the case. See Scherer v. GE Capital Corp., 59 F. Supp.2d 1132 (D. Kan. 1999), aff'd, No. 99-3239, 2000 WL 377474 (10th Cir. Apr. 12, 2000). With respect to plaintiff's disability discrimination claim, this court held that: (1) plaintiff failed to offer any competent evidence of an impairment; (2) even if he had shown an impairment, plaintiff failed to demonstrate that his impairment substantially limits a major life activity; and (3) plaintiff failed to establish either that he informed defendant of his alleged disability and resulting limitations, or that defendant otherwise knew of them. See id. at 1135-36. With respect to plaintiff's gender discrimination claim, the court held that defendant failed to submit evidence showing reverse discrimination or that but for his gender, defendant would have granted his request for a transfer. See id. at 1136-37.
This court's Memorandum and Order in the prior action provides a more thorough discussion of the factual background. See Scherer, 59 F. Supp.2d at 1133-35.
On April 15, 1999, plaintiff filed the present action.
II. Motions for Summary Judgment A. Summary Judgment Standards
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 of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "material" if it is essential to the proper disposition of the claim. See id. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. See id. at 325. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
B. Analysis 1. Defendant's Motion for Summary Judgment
Plaintiff brings several claims in this suit, each arising from the set of events leading up to his termination. First, plaintiff alleges that defendant "failed to engage in an interactive process" in response to his attorney's request for accommodation, as suggested by 29 C.F.R. § 1630.2(o)(3). Second, plaintiff alleges that defendant, by ordering plaintiff not to discuss legal matters with fellow employees, violated the ADA's prohibition against retaliation for engaging in protected activity. See 42 U.S.C. § 12203. Third, plaintiff alleges that defendant, through its managers, created a hostile work environment and made quid pro quo threats to him in violation of the ADA and Title VII. Fourth, plaintiff alleges that defendant showed his attorney's letter to others on the management team and neglected to keep the letter in a separate file, thereby violating the ADA's provision requiring that medical evaluations made pursuant to an offer of employment be kept separate and confidential.See 42 U.S.C. § 12112(d)(3). Fifth, plaintiff alleges that defendant failed to preserve his employment records in violation of 29 C.F.R. § 1602.14.
Defendant argues that each of plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel.
Under res judicata, commonly referred to as claim preclusion, a final judgment on the merits precludes the parties or their privies from relitigating any claims that were or could have been raised in that action. See Augustine v. Adams, 88 F. Supp.2d 1166, 1170 (D. Kan. 2000). For claim preclusion to apply, the following conditions must be satisfied: (1) final judgment on the merits must have been made in the prior action; (2) the parties must be identical or in privity; (3) the suit must be based on the same cause of action. See Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 1999) (further citation omitted). In addition, "the absence of a full and fair opportunity to litigate should be treated as an exception to the application of claim preclusion when the three referenced requirements are otherwise present." Id. at 1227 n. 4.
Although the parties use the terms "res judicata" and "collateral estoppel," for purposes of clarity the court employs the terms "claim preclusion" and "issue preclusion" instead. See Yapp v. Excel Corp., 186 F.3d 1222, 1226 n. 1 (10th Cir. 1999); Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1 (1984) (discussing why the terms "claim preclusion" and "issue preclusion" are preferred over "res judicata" and "collateral estoppel").
This court's order granting summary judgment in the prior action constitutes a final adjudication on the merits for the purposes of claim preclusion. See Solien v. Physicians Bus. Network, Inc., 22 F. Supp.2d 1237, 1238 (D. Kan. 1998) ("It is well settled that summary judgment is a final judgment on the merits for purposes of res judicata."). The parties are identical. Finally, plaintiff's claims in this case concern the same cause of action as in the prior action.
[The Tenth Circuit] has adopted the transactional approach of the Restatement (Second) of Judgments in determining what constitutes identity of the causes of action. The transactional approach provides that a claim arising out of the same "transaction, or series of connected transactions" as a previous suit, which concluded in a valid and final judgment, will be precluded. What constitutes the same transaction or series of transactions is "to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage."Yapp, 186 F.3d at 1227 (quoting Restatement (Second) of Judgments § 24 (1982)). The Tenth Circuit has held that, where the claims in both suits are predicated on the parties' employment relationship, the transactional test is met. See id. (relying on Clark v. Haas Group, Inc., 953 F.2d 1235, 1239 (10th Cir. 1992)). In this case and in the prior action, the claims are based on an event even more discrete than plaintiff's employment relationship with defendant: the claims are based on the termination of plaintiff's employment and the circumstances leading up to it. See Nwosun v. General Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir. 1997) ("Since [both suits] arise from plaintiff's discharge, they are based on the same cause of action.").
Plaintiff responds that during discovery in the prior action, he came across additional violations of the ADA and Title VII, and that the Magistrate Judge ordered him to bifurcate these claims into a separate action. Plaintiff asserts that, in the pre-trial conference to the prior action, Judge Rushfelt refused to hear all but two of the many violations alleged in plaintiff's "final pretrial brief," and that Judge Rushfelt instructed plaintiff "to file a separate but related claim on the other issues." Plaintiff argues that he was denied a full and fair opportunity to litigate the prior action because of this alleged bifurcation.
Plaintiff offers no support for these assertions, other than testimony as to his own perception. Fed.R.Civ.P. 16(e) requires that, after a pre-trial conference, "an order shall be entered reciting the action taken." That the Pre-Trial Order does not reflect such an action suggests that it was not taken. Furthermore, after carefully reviewing the record in the prior action, the court finds no mention of bifurcation, separate claims, or separate trials either in the Pre-Trial Order or in any other document. Moreover, none of the factors enumerated in Fed.R.Civ.P. 42(b), which calls for separate trials "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy," necessitated separating the claims. To have separated claims that were based on the same transaction would have hindered these goals, not furthered them. The court rejects plaintiff's assertion that the case was bifurcated.
Furthermore, plaintiff's first claim in this action — that defendant failed to engage in an interactive process — was included in the prior action's Pre-Trial Order.
Plaintiff also asserts that he moved to amend his complaint to include these additional claims, but that the motion was denied. However, no such motion was made. Although plaintiff moved, unsuccessfully, to amend his complaint so as to add a defendant, that motion did not mention any additional claims.
Finally, the court rejects plaintiff's argument that he was denied a full and fair opportunity to litigate and that, therefore, claim preclusion should not be applied. "The inquiry into whether a party had a full and fair opportunity to litigate an issue `[o]ften . . . will focus on whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relationship of the parties.'" Murdock v. Ute Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683, 689 (10th Cir. 1992) (quoting Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1521 (10th Cir. 1990)) (further citation omitted). No circumstances precluding a full and fair opportunity to litigate existed in the prior action. Every procedural avenue available to plaintiff in this case was available in the previous case; plaintiff pursued his case vigorously; and nothing about the parties' relationship could have compromised the effectiveness of that litigation. More important, no factual issues existed that would have effected the outcome of the litigation; the court based its decision to grant summary judgment on evidence that was either uncontroverted or viewed in a light most favorable to the plaintiff. See Scherer, 59 F. Supp.2d at 1133. Because there is no "reason to doubt the quality, extensiveness, or fairness of procedures followed in [the] prior litigation," the court concludes that plaintiff's case is barred by the doctrine of claim preclusion. 18 Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 4423 (1981) (quoting Montana v. U.S., 440 U.S. 147, 164 n. 11 (1979)).
2. Plaintiff's Motions for Summary Judgment
In addition to his 86-page motion entitled "The Final Summary Judgment" (Doc. 166), plaintiff has also filed a 24-page memorandum entitled "The Big Picture — Brief on a Hostile Environment" (Doc. 158) and six motions for "partial summary judgment" (Docs. 13, 109, 125, 143, 146, and 152); in all, the filings present well over 150 pages of argument. Although these filings are duplicative and in blatant violation of the court's Scheduling Order (Doc. 12) restricting the argument and authorities section of memoranda to 30 pages or less, "a pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Consequently, the court has reviewed each filing in considering the motions for summary judgment in this case.
Although the court has concluded that plaintiff's claims are barred by the doctrine of claim preclusion, the court will address plaintiff's motions for summary judgment.
a. Interactive Process
Plaintiff's claim that defendant failed to engage in an interactive process is barred by the doctrine of issue preclusion. Under issue preclusion, a court's decision on an issue of fact or law that is necessary to its judgment precludes litigation of the same issue in a different cause of action between the same parties. See Augustine, 88 F. Supp.2d at 1170. For the doctrine to apply, the following conditions must be satisfied: (1) the issue previously decided must be identical to the one presented in the current action; (2) the party against whom the doctrine is invoked must have been a party or in privity with a party to the prior action; (3) the party against whom the doctrine is raised must have had a full and fair opportunity to litigate the issue in the prior action; and (4) the prior action must have been finally adjudicated on the merits. See id. at 1171 (citing Murdock, 975 F.2d at 87) (further citation omitted).
The court has already concluded that the parties are identical, that plaintiff had a full and fair opportunity to litigate in the prior action, and that the prior action was adjudicated on the merits. In addition, this court concluded in the prior action that plaintiff did not adequately inform defendant of his disability. "[T]he interactive process between the employer and employee generally begins with notification to the employer of the employee's disability and limitations along with the employee's desire for reassignment if no reasonable accommodation in the existing job is possible." Hines v. Chrysler Corp., No. 99-1280, 2000 U.S. App. LEXIS 11338, at *6 (10th Cir. May 19, 2000) (citing Smith v. Midland Brake, 180 F.3d 1154, 1171-72 (10th Cir. 1999)). In other words, the duty to engage in an interactive process is not "trigger[ed]" unless the employee provides "appropriate notice" of his or her disability to the employer. Midland Brake, 180 F.3d at 1172. This court concluded in the prior action that plaintiff failed to establish either that he informed defendant of his alleged disability and resulting limitations or that defendant otherwise knew of them. See Scherer, 59 F. Supp.2d at 1136. Applying issue preclusion, the court concludes that plaintiff's "interactive process" claim fails because no duty to engage in an interactive process was triggered.
b. Hostile Work Environment
The Tenth Circuit has not yet recognized a hostile work environment claim under the ADA; however, the court will assume without deciding that such a cause of action exists and that "the elements would be similar to those required under Title VII." Anthony v. City of Clinton, No. 98-6188, 1999 U.S. App. LEXIS 13229, at *10 (10th Cir. June 15, 1999).
To survive summary judgment on a hostile work environment claim, plaintiff
must show "that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." [Plaintiff] must also produce evidence that he was the object of discrimination because of his perceived disability. The conduct must be both objectively and subjectively abusive. Factors a court may consider include: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."Anthony v. City of Clinton, No. 98-6188, 1999 U.S. App. LEXIS 13229, at *10-11 (10th Cir. June 15, 1999) (quoting Penry v. Federal Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir. 1998) and Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Plaintiff argues that the following alleged events combined to create a hostile work environment: defendant's order that he not discuss legal matters with co-employees; defendant's distribution of his attorney's letter to members of management; defendant's modification of its internal grievance procedures; defendant's refusal to engage in an interactive process; defendant's refusal to grant a reasonable accommodation and to have an ombudsperson present at a disciplinary meeting; a comment by one "Gaetano" that "[w]e don't care whether it's in the employee handbook or not, we'll fire you if you do something we don't like" and "[i]f not a team player, you should leave"; a co-worker's termination; changes in organization and managerial structure; and the use by defendant's employees of the phrase, "Scherer madness."
Plaintiff's hostile work environment claim fails for the following reasons: first, plaintiff fails to support his allegations by reference to any affidavits, depositions, or other evidence in the record. Second, the allegations, even if supported, fall far short of creating an actionable "hostile environment." Third, plaintiff neither argues nor provides evidentiary support that any of defendant's actions were motivated by any disability-based or retaliatory animus. Plaintiff's hostile work environment claim fails.
c. Quid Pro Quo Harassment
Plaintiff asserts that he was the victim of quid pro quo harassment in violation of Title VII. This type of claim exists to protect employees against gender-based discrimination when "specific benefits of employment are conditioned on sexual demands." Ball v. Renner, 54 F.3d 664, 665 n. 2 (10th Cir. 1995) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986)). Because plaintiff has not alleged any such behavior, his quid pro quo harassment claim fails.
d. Retaliation
Plaintiff claims that defendant unlawfully retaliated against him for discussing legal matters with employees and for contacting an attorney. Plaintiff alleges that defendant retaliated by requiring him to refrain from discussing legal matters with employees, by refusing to transfer him to another department, by his supervisors making threatening comments, and by terminating his employment. In order to establish a prima facie case of retaliation, plaintiff must show: (1) that he engaged in protected activity; (2) that he was subjected to an adverse employment action subsequent to or contemporaneous with the protected activity; and (3) that a causal connection exists between the protected activity and the adverse employment action. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997)). Once plaintiff establishes a prima facie case, the burden shifts to defendant to present a non-discriminatory reason for its decision. See id. If defendant can present such a reason, the burden shifts back to plaintiff to show that "`there is a genuine issue of material fact as to whether the employer's proffered reason for the challenged action is pretextual, i.e. unworthy of belief.'" Id. (quoting Morgan, 108 F.3d at 1323, and applying analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). "A plaintiff may show pretext by demonstrating `such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action[s] that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.'" Morgan, 108 F.3d at 1323 (quoting Olson v. General Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)) (further citation omitted).
Assuming that plaintiff has presented a prima facie case, the only actions by defendant that might be considered adverse employment actions are plaintiff's termination and defendant's refusal to transfer him. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (holding that adverse employment actions are defined by "a significant change in employment status . . . or benefits"); Trujillo v. New Mexico Dep't of Corrections, No. 98-2143, 1999 U.S. App. LEXIS 6384, at *13 (10th Cir. Apr. 8, 1999). Defendant has presented legitimate non-discriminatory reasons for both actions — namely, that to have transferred plaintiff under those circumstances would have violated company policy, and that plaintiff was terminated for unprofessional behavior towards a client and a co-worker. Although plaintiff alleges that some of defendant's decisions were inconsistent, he offers no evidentiary support for his assertion.
Plaintiff argues that the temporal proximity of the events leads to an inference of pretext. However, defendant's disciplinary action began before plaintiff engaged in any protected activity; the court determines that defendant's actions "simply completed the disciplinary process already set in motion." Morgan, 108 F.3d at 1324. The court concludes that plaintiff's retaliation claim fails because he has not offered evidence sufficient to suggest that a reasonable trier of fact could find defendant's proffered reasons pretextual.
e. Medical Records
Plaintiff claims that defendant violated the ADA when it distributed his attorney's letter to several other persons within the company because the letter stated that plaintiff was under a doctor's care due to emotional distress. Plaintiff cites 42 U.S.C. § 12112(c)(3) in support of this contention, but that provision, which discusses foreign entities that are covered by Section 12112, is inapposite to this case. Presumably, plaintiff meant to refer to Section 12112(d)(3)(B), which provides that "information obtained regarding the medical condition or history of [a job] applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record." That provision, however, applies only to medical examinations made as part of an offer of employment. In addition, it contains an exception for supervisors and managers. See 42 U.S.C. § 12112(d)(3)(B)(i). The court concludes that 42 U.S.C. § 12112 does not apply to this case; the court further concludes that defendant's alleged distribution of plaintiff's attorney's letter did not violate that section.
f. Employment Records
Plaintiff's claim that defendant did not preserve his employment records in violation of 29 C.F.R. § 1602.14 is predicated on several of plaintiff's previous discovery motions (Docs. 33, 44, and 61), on plaintiff's request for a ruling (Doc. 63), and on plaintiff's request for a pre-trial conference (Doc. 69). The court denied these motions in its hearing on March 23, 2000. Therefore, plaintiff's employment records claim fails because it is moot.
III. Additional Motions
Plaintiff's Motion for Reconsideration to "Plaintiff Objection to an Order — Petition for Review Before a Judicial Council" (Doc. 164) is without merit. The motion that plaintiff asks the court to reconsider was denied because the court has no jurisdiction over judicial complaints; for the same reason, this motion is denied.
In plaintiff's Notice of Appeal (Doc. 168), plaintiff asks the court to "grant the plaintiff an appeal" and questions the court's authority to issue orders in this case. The motion is without merit because the appeal is improper and does not divest the court of jurisdiction. The motion is denied. For the same reasons, plaintiff's Motion for a Stay (Doc. 174) is denied.
IT IS, THEREFORE, BY THE COURT ORDERED that defendant's Motion for Summary Judgment (Doc. 67) is granted, and plaintiff's motions for summary judgment (Docs. 109, 125, 143, 146, 152, and 166), Motion for Reconsideration to "Plaintiff Objection to an Order — Petition for Review Before a Judicial Council" (Doc. 164), Notice of Appeal (Doc. 168), and Motion for a Stay (Doc. 174) are denied.
IT IS FURTHER ORDERED that all other pending motions (Docs. 81, 82, 165, 169, 180, 181, and 187) are denied as moot.
The case is closed.
Copies of this order shall be mailed to counsel of record.
IT IS SO ORDERED.