Opinion
No. CV-06-2005-PHX-DGC (JJM).
April 4, 2008
ORDER
Defendant has filed a motion for summary judgment. Dkt. #99. For the reasons set forth below, the Court will grant the motion.
Defendant's request for oral argument is denied because the parties have thoroughly briefed the law and evidence and oral argument will not aid the Court's decision. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999).
I. Background.
On May 24, 1999, Plaintiff Ryan W. Buckman began working for Defendant MCI World Com as a telemarketing sales representative. See Dkt. #102 ¶ 4. Plaintiff was terminated on July 12, 1999 for "job abandonment after he failed to report to work." Id.
Plaintiff rejoined Defendant's company on February 19, 2003. Dkt. #100 ¶ 1. He was diagnosed with Hepatitis C in June of 2003. Dkt. #100 ¶ 32. The parties agree that during his second tour of duty with Defendant, Plaintiff received numerous warnings for attendance and disciplinary problems. See, e.g., ¶¶ 13-14. The parties further agree that for medical reasons Defendant changed Plaintiff's work schedule and the sales team to which he belonged (see Dkt. #100 ¶¶ 8-10, 30), and granted Plaintiff's requests for intermittent leave under the Family and Medical Leave Act ("FMLA") (see id. ¶ 7).
Plaintiff was on approved intermittent FMLA leave for two weeks from Monday, April 5, through Friday, April 9, 2004, and from Monday, April 12, through Friday, April 16, 2004. See Dkt. #127-8 at 5. The following Monday, April 19, 2004, Plaintiff did not report for work and his absence was recorded as "unexcused." See Dkt. #102 ¶ 7. Plaintiff failed to appear for work the next day and did not call to report that he would be absent. See id; Dkt. #100 ¶ 22.
On April 21, 2004, after meeting with Plaintiff and Plaintiff's supervisor, senior manager Jerry Ulibarri suspended Plaintiff effective immediately. Dkt. #105 ¶ 3. Ulibarri terminated Plaintiff effective April 23, 2004. Id. at ¶ 4.
Plaintiff again applied for employment with Defendant in February of 2005. Dkt. #100 ¶ 46. According to Defendant, Plaintiff was not rehired because he failed to disclose prior criminal convictions. Id.
Plaintiff has been incarcerated since May 17, 2005. Id. at ¶ 41. On August 25, 2005, Plaintiff was indicted on three counts of first degree murder, three counts of armed robbery, and one count of burglary in the first degree. Dkt. #106-2 Ex. 13. He currently is incarcerated in Maricopa County Jail awaiting trial on these charges. See id.
Plaintiff filed an amended pro se complaint in which he alleges that he was terminated in retaliation for exercising his rights under the FMLA and in violation of the Americans with Disabilities Act ("ADA"). Dkt. #28. The parties have fully briefed Defendant's motion for summary judgment. Dkt. ##99, 127, 134.
Defendant appears to be under the impression that Plaintiff's complaint includes a claim that Defendant wrongfully failed to rehire him. See Dkt. #99. Even with a liberal reading of Plaintiff's complaint, the Court finds that Plaintiff asserts only two causes of action, both of which relate to his August 23, 2004 termination, not his 2005 attempt to be rehired by Defendant. See Dkt. #28 at 8 (alleging only that Defendant violated the FMLA and the ADA "when they improperly fired me . . . in retaliation for" exercising his FMLA rights and his disability status) (emphasis added). The FMLA requires employers to reinstate an employee to his or her former position or an equivalent position following the employee's timely return from FMLA leave. 29 U.S.C. § 2614(a)(1). But Plaintiff's complaint does not allege as a basis for relief Defendant's failure to reinstate him following his return from approved leave on April 19, 2004. Accordingly, the Court will not address Defendant's arguments with respect to their refusal to rehire or reinstate Plaintiff.
The Court notes that documents submitted with Plaintiff's statement of facts are voluminous (some 800 pages), poorly cited, and without sequential page numbers or any discernable order. Where a non-moving party's papers are "extraordinarily difficult to use" due to their size and unhelpful citations, a court is not required to scour those papers in search of a genuine issue of material fact. Keenan v. Allan, 91 F.3d 1275, 1278-79 (9th Cir. 1996). As Plaintiff is proceeding pro se, however, the Court has undertaken significant efforts to locate relevant documents cited in Plaintiff's statement of facts.
II. Summary Judgment Standard.
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment may be entered against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The Court is mindful that Plaintiff is proceeding pro se and is incarcerated. "Pro se prison inmates, with limited access to legal materials, occupy a position significantly different from that occupied by litigants represented by counsel." Jacobsen v. Filler, 790 F.2d 1362, 1365 n. 4 (9th Cir. 1986) (citation omitted). Courts have a duty to liberally construe the pleadings of pro se litigants, particularly those filed by pro se prisoners. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). Pro se litigants are nonetheless bound by "the same rules of procedure that govern other litigants," King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), including Rule 56's requirement that a non-moving party "must present some significant probative evidence tending to support the complaint" in order to survive summary judgment. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984) (citation and internal quotes omitted).
III. FMLA Claim.
A. Legal Standard.
"Congress enacted the FMLA to allow workers flexibility in scheduling time off to deal with family and medical problems and alleviate some of the tension created by the competing demands of work and family in modern society." Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078, 1082 (9th Cir. 2002). Plaintiff alleges that he was terminated in retaliation for taking FMLA leave. Dkt. #28. Under the FMLA, it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided" by the statute. 29 U.S.C. § 2615(a)(1). The Ninth Circuit has held that "visiting negative consequences on an employee simply because he has used FMLA leave" is not considered retaliation, but "[s]uch action is, instead, covered under § 2615(a)(1), the provision governing `Interference [with the] exercise of rights.'" Bachelder v. America West Airlines, 259 F.3d 1112, 1124 (9th Cir. 2001). Accordingly, the Court will treat Plaintiff's allegation as one of interference with his FMLA rights. See Xin Liu v. Amway Corp., 347 F.3d 1125, 1134 n. 8 (9th Cir. 2003) (applying the FMLA interference provision where the plaintiff mistakenly alleged retaliation).
Defendant argues primarily that Plaintiff was terminated as a result of his failure to abide by Defendant's call-in procedures and specifically that his April 19, 2004 absence was his "last straw." Dkt. #99. Defendant contends that dismissal of Plaintiff's FMLA cause of action is appropriate in part because Plaintiff cannot demonstrate that this legitimate, non-discriminatory reason was pretextual. Id. But the Ninth Circuit has rejected the notion that the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to an FMLA interference claim. See Xin Liu, 347 F.3d at 1136. To prevail on a claim under § 2615(a)(1), Plaintiff must establish by a preponderance of the evidence that (1) he took FMLA-protected leave, (2) he suffered an adverse employment action, and (3) the adverse actions were causally related to his FMLA leave. See Bachelder, 259 F.3d at 1124-26.
The McDonnell Douglas framework does apply in FMLA cases where an "employee is punished for opposing unlawful practices by the employer." See Xin Liu, 347 F.3d at 1136 (emphasis in original). Plaintiff makes no such claim in this case.
The parties do not dispute that Plaintiff took FMLA leave ( see Dkt. #127-8 at 5) and was subjected to an adverse employment action (see Dkt. #100 ¶ 24). The parties focus instead on the third element — the existence of a causal link between Plaintiff's leave and his termination. To establish causation, a plaintiff "need only prove by a preponderance of the evidence that [his] taking of FMLA-protected leave constituted a negative factor in the decision to terminate [him]." Bachelder, 259 F.3d at 1124. "[R]equiring a showing that the protected activity constituted a negative factor in an adverse employment decision is another way of stating that there must be some causal connection between the FMLA right and the employment decision." Hambright v. Potter, No. 05-1302, 2007 WL 1101262, at *7 (D. Ariz. Apr. 12, 2007).
B. Plaintiff's History of Attendance and Disciplinary Problems.
Defendant asserts that Plaintiff had a history of disciplinary problems by the time of his termination. Specifically, Defendant asserts that Plaintiff was warned (1) on April 3, 2003, for calling in sick when he had no accrued sick time; (2) on April 7, 2003, for mimicking customers in sales calls; (3) on April 18, 2003, for calling in sick when he had no accrued sick time; (4) on July 25, 2003, for calling in sick when he had no accrued sick time; (5) on July 31, 2003, for not calling in prior to his shift to notify his supervisor that he would be late; (6) on September 30, 2003, for assuring a customer that he was eligible for a service that was not available to him; and (7) on January 6, 2004, for not reporting to work on November 10 and 11, 2003, and January 2, 2004. Dkt. #100 ¶¶ 13-14. Plaintiff does not dispute these assertions. Dkt. #127 ¶¶ 13-14.
Plaintiff also received a warning on January 7, 2004, for failing to call in before missing his shift. Dkt. #100 ¶ 15. This warning notes the previous occurrences on November 10 and 11, 2003, and January 2, 2004, and states, "Per attendance guidelines that [Plaintiff] received during his initial training, he must call at least 2 hours prior to shift." Id. Plaintiff does not deny that he received this warning or its language. Dkt. #127 ¶ 15. He instead asserts that the warning was not warranted because he had been trained in February of 2003 that he must call in only during the first hour of his shift, not before the shift, and had never agreed to be bound by a policy requiring him to call in two hours before the shift. Id. Plaintiff does not contend that the warning was given on the basis of his FMLA leave.
Plaintiff received another warning on February 20, 2004, for failing to return to work after lunch on February 13, 2004. Dkt. #100 ¶ 16. Plaintiff does not dispute that he received this warning, but instead argues that the warning was not warranted. Dkt. #127 ¶ 16. Plaintiff asserts that he had medical permission to be absent and that Defendant afforded him FMLA leave that day. He asserts that the person who issued the warning was not aware of these facts. Id. He does not claim that the warning was issued because of his FMLA leave. Id.
Plaintiff received another warning on March 16, 2004, for submitting the same sale twice to be counted toward his quota. Dkt. #100 ¶ 17. Defendant does not dispute that he received the warning, but again claims it was unjustified. Dkt. #127 ¶ 16. Plaintiff does not contend, however, that the warning was tied to his taking FMLA leave. Id.
On April 15, 2004, Plaintiff received what was labeled a "final warning" because he changed a customer's service immediately after telling the customer he would wait before making the change. Dkt. #100 ¶ 18. Plaintiff does not dispute that he received the warning, nor that it was labeled a "final warning," but asserts that it was unjustified becau he did not make a promise to the customer and did not control the timing of her change. Dkt. #127 ¶ 18. Plaintiff notes that this warning was placed in his file on a day while he was on FMLA leave, but does not assert that it was issued or placed in his file because of the leave. Id.
Several of these warnings specifically advised Plaintiff that he would face termination if he had other infractions. For example, at least seven warnings stated that "[f]uture occurrences may result in further corrective action up to and including termination." Dkt. #101 Ex. 2 at 2, 4, 6, 7; Ex. 3 at 1, 2. The January 6, 2004 warning for failure to report to work on three days stated that "[i]f employees do not meet the company's expectations of performance and/or conduct, corrective action, including discharge, may be taken." Dkt. #101, Ex. 2 at 5.
C. Plaintiff's Attendance on April 19, 2004.
As noted above, Plaintiff received two weeks of pre-approved FMLA leave that ended on Friday, April 16, 2004. See Dkt. #127-8 at 5. Defendant asserts that Plaintiff was scheduled to return to work on Monday, April 19, 2004. Dkt. #100 ¶ 20. The parties agree that Plaintiff did not appear for work that day. See Dkt. #100 ¶¶ 20-21; Dkt. #127 ¶¶ 20-21. Plaintiff called at 9:48 a.m. that morning to inform his supervisor that he would be absent. Id. Plaintiff also failed to appear for work the next day, April 20, 2004. Dkt. #100 ¶ 22; #127 ¶ 22. Plaintiff did not call to say he would be absent that day. Id.
Plaintiff admits that it was Jerry Ulibarri, the senior manager at Defendant's facility, who suspended Plaintiff on April 21 and terminated him on April 23. Dkt. #100 ¶ 24; #127 ¶ 24. Significantly, Plaintiff also admits that Ulibarri did not know about Plaintiff's illness or his use of FMLA leave. See Dkt. #127 ¶ 23. Defendant has submitted an affidavit from Ulibarri stating that Plaintiff was terminated because he failed to call in before his shifts on April 19 and 20, failed to report to work on April 19, and had received many previous warnings, including a final warning. Dkt. #105 ¶ 4. Plaintiff provides no evidence to dispute these reasons. Dkt. #127 ¶ 25.
Plaintiff instead asserts that he was not required to work on April 19 or 20. Dkt. #127 ¶ 20. Plaintiff fails, however, to submit admissible evidence in support of this assertion. Plaintiff provides no affidavit or declaration to support his claim. He cites to portions of his deposition, but does not attach the cited pages and they are not included in excerpts supplied by Defendant. Plaintiff cites to a number of requests for admissions and interrogatory answers, but only one of them addresses his obligation to attend work on April 19 and 20 — Defendant's admission that "Plaintiff claims to have submitted a doctor's note purporting to excuse Plaintiff for April 19 and 20 due to liver issues." Dkt. #127-8 at 6-7. The doctor's note states that Plaintiff was under the doctor's care on April 20. Dkt. #128-7 at 2. Although cryptic, the note could be read to suggest that Plaintiff had liver problems on April 19 as well (although it says he was under the doctor's care only on April 20). Plaintiff fails, however, to provide any evidence that the note would be admissible at trial. Id. He does not attach a declaration from the doctor or explain how the note was obtained, and he apparently never asked Defendant to admit its authenticity or admissibility.
Defendant's reply specifically asks the Court to disregard over 800 pages of allegedly inadmissible evidence submitted by Plaintiff, especially unauthenticated medical records and opinions. See Dkt. #134 at 6-7. Given this objection and Plaintiff's failure to provide any basis for the note's admissibility, the Court will disregard it. See Fed.R.Civ.P. 56(e)(1) (evidence submitted in connection with summary judgment motion must be "admissible in evidence"; documents must be "sworn or certified").
Plaintiff also points to Defendant's employee handbook, which states that an employee on FLMA leave must provide a medical release from his or her physician when returning to work. See Dkt. #128-10 at 5, 7. Plaintiff suggests that this provision excused him from attending work on April 19 and 20 because he had not provided Defendant with a medical release. But the provision does not say that employees are free to miss work until they provide a release. The clear meaning of the policy is that employees must bring a release when returning to work as scheduled, not that they have a free pass to miss work until they elect to produce a release. Id.
In addition to the fact that Plaintiff has provided no admissible evidence to support his assertion that he was not required to work on April 19 and 20, the existing evidence suggests otherwise. For example, if Plaintiff had pre-approved FMLA leave on April 19 as he claims, why did he call his supervisor at 9:48 a.m. that day (as he admits) to say he would not appear for work? See Dkt. #100 ¶ 21; #127 ¶ 21. Plaintiff himself asserts that he was not required to call in on pre-approved FMLA days. Dkt. #127-7 at 12.
D. FMLA Conclusion.
The uncontroverted evidence shows that Plaintiff received at least 11 warnings in the months before his termination, including warnings that specifically advised him of his obligation to call in before his shift on days when he would miss work. Plaintiff received a "final warning" on April 15. He was scheduled to work on April 19 and 20, but called in late on the 19th, did not call at all on the 20th, and failed to appear for work on both days. Plaintiff was then terminated by a senior manager who Plaintiff admits did not know about his health problems or his FMLA leave.
Plaintiff argues that he never agreed to be bound by a policy requiring him to call in his absences before his shift started, and that he therefore was required to follow only the February 2003 training that said he could call in during the first hour of his shift. But Plaintiff cites no authority, legal or factual, for the proposition that he was obligated to follow only those policies of his employer with which he agreed. And he does not dispute that warnings he received before his termination specifically advised him of the obligation to call in before his shift. See, e.g., Dkt. #101 Ex. 2 at 6; Dkt. #102 Ex. 7 at 3.
Given these undisputed facts, the Court concludes that Plaintiff has failed to come forward with sufficient evidence of causation — that his FMLA leave was a negative factor in his termination. As noted earlier, summary judgment may be entered against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Moreover, the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Plaintiff has presented no evidence from which a reasonable jury could find in his favor on the issue of causation. The Court accordingly will enter summary judgment on Plaintiff's FMLA claim.
The Court is aware of the temporal proximity between Plaintiff's return from FMLA leave and his termination. Plaintiff does not urge this as a basis for proving causation. More importantly, although "[t]emporal proximity between protected activity and an adverse employment action can by itself constitute sufficient circumstantial evidence of retaliation in some cases," Bell v. Clackamas County, 341 F.3d 858, 865 (9th Cir. 2003), the Court finds that no reasonable jury could find causation in this case given the uncontroverted evidence recited above, even considering the timing of Plaintiff's termination.
IV. ADA Claim.
The ADA forbids employers from discriminating against a qualified individual with a disability, on the basis of the disability, "in regard to . . . [the] terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). An employee alleging ADA discrimination bears the burden of proving that he is "disabled" within the meaning of the statute. See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007). "[A]n individual is disabled if that individual (1) has a physical or mental impairment that substantially limits one or more of the individual's major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment." Coons v. Sec'y of U.S. Dept. of Treasury, 383 F.3d 879, 884 (9th Cir. 2004).
A. Is Plaintiff Disabled?
To qualify as disabled under the first definition of disability, a plaintiff must prove (1) he has a physical or mental impairment, (2) the impairment limits a major life activity, and (3) the limitation upon that activity is substantial. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194-95 (2002). Plaintiff asserts that he has chronic Hepatitis C and that he has problems associated with mental illness and his neurological, cardiovascular, reproductive, digestive, hemic, lymphatic, and immune systems. Dkt. #127 at 15. Whether Plaintiff is actually disabled, however, depends not on a diagnosis of an impairment or the type of symptoms, but on an individualized inquiry into whether Plaintiff has an impairment that substantially limits a major life activity. See Toyota Motor Mfg., 534 U.S. at 198 ("It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment.").
At the outset, the Court notes that Plaintiff does not dispute that he was "almost cured" of his Hepatitis C as of April 20, 2004. Dkt. #100 ¶ 35; #127 ¶ 35. Plaintiff nonetheless argues that he was disabled. He contends, for example, that his "food does not digest the same as normal people[.]" Dkt. #127 at 15. But the ADA requires Plaintiff "to prove a disability by offering evidence that the extent of the limitation in terms of [his] own experience . . . is substantial," not information on his condition relative to others. Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999). Plaintiff states that he vomits, has fevers, and is fatigued. Dkt. #127 at 15. An ADA plaintiff's limitations must, however, be tied to a major life activity. See Toyota Motor Mfg, 534 U.S. at 194-95. Aside from eating, Plaintiff does not tie these limitations to a major life activity. See id. Nor does Plaintiff direct the Court to evidence that these limitations significantly impaired the major life activity of eating. For example, there is no evidence that he suffered these limitations in the long-term. See id. at 198 ("[t]he impairment's impact must . . . be permanent or long term.").
Plaintiff also notes that he takes Interferon for his Hepatitis C, which leads to side effects for which he was hospitalized and prescribed medicine. Dkt. #127 at 16. He also claims to receive other treatment for his symptoms. Id. at 18. But Plaintiff does not demonstrate that the side effects of the medication impair a major life activity. See Toyota Motor Mfg., 534 U.S. at 198. Moreover, he does not explain whether he experiences a substantially limiting impairment after taking his medications or receiving his treatment. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999) ("if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures — both positive and negative — must be taken into account when judging whether that person is `substantially limited' in a major life activity and thus `disabled' under the [ADA].").
Plaintiff contends that he was substantially limited in his ability to reproduce for a period of twelve months. Dkt. #127 at 16. Reproduction is a major life activity. See Bragdon v. Abbott, 524 U.S. 624, 638 (1998). At the same time, however, Plaintiff states that he "sometimes" has a "normal sex life" and a "few months" following his termination he had a "pretty normal" sex life. Dkt. #106-3 at 156:19-21, 157:5-11. Plaintiff has not submitted evidence from which a reasonable jury could conclude that he is substantially limited in the major life activity of reproduction.
With respect to having a record of a disability, Plaintiff states that he has "medical records of an impairment" (Dkt. #127 at 14), but he does not point the Court to records of an impairment that substantially limits a major life activity. The evidence furnished by Plaintiff, if admissible, could support a finding that he has had difficulties and restrictions, but they do not rise to the level of a substantial limitation of a major life activity. See Coons, 383 F.3d at 886 ("Although the doctor states that Coons suffers from various physical and mental impairments, and that Coons received treatment for some of those impairments, there is no allegation that any of the treated impairments substantially limited any major life activity."). Nor has Plaintiff submitted evidence to show that the records are admissible.
With respect to Plaintiff's argument that he was "regarded" as disabled, Plaintiff cites emails transmitted by one of Defendant's human resources employees with "ADA Accommodation" in the subject line. See Dkt. #128-5 at 7. The informal mention of the "ADA" or an "Accommodation" is insufficient evidence that Defendant regarded Plaintiff as having an impairment that substantially limited a major life activity. See E.E.O.C. v. United Parcel Service, Inc., 306 F.3d 794, 805 (9th Cir. 2002) ("Casual references to `disability' . . . do not support a finding that the company regarded [an employee] as disabled."). The emails suggest that Defendant was attempting to accommodate Plaintiff, but efforts to accommodate an employee do not show that the employer regards the employee as disabled. See Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 798 (9th Cir. 2001) ("when an employer takes steps to accommodate an employee's restrictions, it is not thereby conceding that . . . it regards the employee as disabled."), clarified in other respects by, 292 F.3d 1045 (9th Cir. 2002).
Considering these arguments, the Court concludes that Plaintiff has failed to present admissible evidence from which a reasonable jury could conclude that he is disabled within the meaning of the ADA.
B. Causation.
Even if Plaintiff could prove that he has an ADA disability, he could recover for an ADA violation only by presenting evidence that he was terminated because of the disability. See Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1353 (9th Cir. 1996) ("To state a prima facie case under the ADA, a plaintiff must prove that he is a qualified individual with a disability who suffered an adverse employment action because of his disability."). As noted in the earlier discussion of Plaintiff's FMLA claim, Plaintiff has failed to create a triable issue of fact as to whether he was fired because of health issues. Among other significant facts, Plaintiff admits that the senior manager who fired him did not know about his illness or his use of FMLA leave. See Dkt. #127 ¶ 23. Plaintiff therefore cannot show that he was terminated because of an ADA disability. Summary judgment is warranted on this ground as well.
Defendant asks the Court to issue two rulings with respect to damages: that Plaintiff's lost wages and benefits are "cut off" as a matter of law by Plaintiff's current incarceration and criminal charges, as well as by Defendant's discovery of Plaintiff's prior criminal convictions, and that Plaintiff cannot establish the requisite intent necessary for punitive damages. Dkt. #99. Because the Court concludes that Defendant is entitled to summary judgment on Plaintiff's FMLA and ADA claims, it need not resolve these issues.
V. Plaintiff's Motions.
Almost one month after Defendant had filed its reply in support of summary judgment, Plaintiff filed a motion to supplement his response with the bare declaration that "all of the evidence and information" in his response is "true and correct to the best of my knowledge." Dkt. #143. This attempt is too late and too broad.
Following the filing of Defendant's motion for summary judgment, the Court entered an order that instructed Plaintiff on how to respond to the motion. Dkt. #111. The order advised Plaintiff that he must comply with Rule 56 of the Federal Rules of Civil Procedure, which in turn notes that parties opposing summary judgment "must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). The Court further advised Plaintiff that he "must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict facts shown in the Defendants' declarations and documents and show there is a genuine issue of material fact for trial." Dkt. #111 at 3. The order then warned: "If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you." Id.
Plaintiff was then afforded sufficient time to comply with the Rule 56 and the Court's order. In addition to the time allotted for briefing summary judgment motions, the Court granted Plaintiff's request for an extension of time to file his response. Dkt. #117. Plaintiff's response was due on January 12, 2008. Id. Defendant asks the Court to grant its motion for summary judgment on the ground that Plaintiff failed to file a timely reply, noting that the reply was not delivered for filing until January 16, 2008, after the date set by the Court. Dkt. #134 at 6 n. 1. Because Plaintiff is proceeding pro se, the Court will not grant Defendant's motion on this basis. The Court does note, however, that Plaintiff had sufficient time to comply with Rule 56 and the Court's order directing him to submit admissible evidence.
Moreover, Plaintiff's current request is to treat his entire response to Defendant's motion — some 59 pages of written material and more than 800 pages of exhibits — as a single sworn declaration. Dkt. #143. Such a declaration would clearly be improper under Rule 56(e), which requires affidavits "made on personal knowledge, set[ting] out facts that would be admissible in evidence, and show[ing] that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(e). Much of the material submitted in Plaintiff's response could not be known by him personally. For example, Plaintiff cannot authenticate the numerous medical documents he has submitted, nor render them admissible, merely by asserting that "they are true and correct to the best of my knowledge." Dkt. #143. Plaintiff's response also contains statements allegedly made by others, assertions about what others thought, or assertions about why others took particular actions — matters on which Plaintiff clearly lacks personal knowledge or, at least, for which he provides no foundation. The Ninth Circuit has held that "[c]onclusory affidavits and affidavits that do not affirmatively show personal knowledge of `specific facts' are insufficient [to withstand summary judgment]." Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1321 (9th Cir. 1981), vacated on other grounds, Bureau of Economic Analysis v. Long, 454 U.S. 934 (1981); see also Agricultural Mgt. Dev. Inc. v. National City Bank, No. 1:02-CV-11, 2003 WL 21919184 at *5 (N.D. Ind. 2003) (blanket assertions of personal knowledge are insufficient under Rule 56(e)) (collecting cases).
The Court recognizes the challenges confronted by pro se parties, but the Court specifically advised Plaintiff of the need to submit a timely response based on admissible evidence. Dkt. #111. Defendant has now relied on Plaintiff's response in crafting its reply and submitting final arguments. Plaintiff's request to transform all he has submitted into a single declaration is untimely, sweeps too broadly, and does not comply with the requirement of Rule 56. Plaintiff's motion will therefore be denied.
Plaintiff has filed a motion for reconsideration of Magistrate Judge Marshall's order denying Plaintiff's request to file a supplemental response to Defendant's motion for summary judgment. Dkt. ##140, 145. The motion for reconsideration contains some ten pages of additional arguments and attaches 167 pages of documents, mostly cases and other legal materials. Dkt. #145. This attempted supplementation is untimely. The Court will not reverse Judge Marshall's decision.
Plaintiff has filed yet another motion asking the Court to declare that his responses to a defense discovery request are timely. Dkt. #146. Plaintiff does not attach the responses or provide other evidence to support his assertion that they were not delivered due to a jail error. In any event, because the Court has not relied on the lack of responses in this ruling, the Court will deny Plaintiff's motion as moot.
IT IS ORDERED:
1. Defendant's motion for summary judgment (Dkt. #99) is granted.
2. Plaintiff's other motions (Dkt. ##143, 145, 146) are denied.
3. The Clerk is directed to terminate this action.