Pralle v. Walmart Stores, Inc., No. 5:2015cv04903 - Document 75 (D. Kan. 2017)
Court Description: MEMORANDUM AND ORDER denying 73 Motion to Appoint Counsel; granting 66 Motion for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 6/30/17. Mailed to pro se party Janet Pralle by regular mail (msb)
Download PDF
<![CDATA[
Pralle v. Walmart Stores, Inc. Doc. 75 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS JANET PRALLE, Plaint iff, vs. Case No. 15- 4903- SAC WALMART STORES, I NC., Defendant . MEMORANDUM AND ORDER The plaint iff Janet Pralle pro se brings t his act ion alleging claim s of sexual harassm ent , host ile work environm ent , and ret aliat ion under Tit le VI I of t he Civil Right s Act of 1964, as am ended, 42 U.S.C. § 2000e, et seq. ECF# 63, Pret rial Order, p. 3. The case com es before t he court on t he plaint iff’s renewed m ot ion for appoint m ent of counsel ( ECF# 73) , t he plaint iff’s failure t o respond t o t he court ’s order t o show cause ( ECF# 72) , and t he defendant Walm art St ores, I nc.’s m ot ion for sum m ary j udgm ent ( ECF# 66) . I n April of 2005, t he defendant Walm art St ores, I nc. ( “ Walm art ” ) hired Janet Pralle t o work as a cashier at it s st ore in Marysville, Kansas, and she lat er worked as a court esy desk associat e. ECF# 63, Pret rial Order, p. 3. Walm art t erm inat ed t he plaint iff on Decem ber 7, 2012, aft er she received writ t en coachings on t hree separat e dat es, t wo in Novem ber of 2012 and one on Decem ber 3, 2012. I d. at p. 4. This lawsuit was filed in July of 2015. Dockets.Justia.com As reflect ed in t he pret rial order, t he plaint iff alleges she report ed t o t he st ore m anager and t he cust om er service m anager t hat her supervisor was sexually harassing a st ore vendor. Aft er m aking t his report , t he plaint iff alleges she was t reat ed different ly, t hreat ened, and ret aliat ed against such t hat she experienced a host ile work environm ent , harassm ent and event ual t erm inat ion. ECF# 63, pp. 6- 8, 9. The pret rial order st at es discovery was t o be “ com plet ed by March 31, 2017, and is now com plet e. I d. at p. 11. The court ext ended t he pret rial order’s deadline for filing disposit ive m ot ions t o May 10, 2017, ( ECF # 65) , and t he defendant Walm art filed it s m ot ion for sum m ary j udgm ent on t hat day. The defendant com plied wit h D. Kan. Rule 56.1( f) and provided t he required not ice t o a pro se lit igant . ECF# 68. This not ice, in part , warned t hat , “ I f you do not respond t o t he Mot ion for Sum m ary Judgm ent on t im e wit h affidavit s and/ or docum ent s cont radict ing t he m at erial fact s assert ed by t he Defendant , t he Court m ay accept Defendant ’s fact s as t rue, in which event your case m ay be dism issed and j udgm ent ent ered in Defendant ’s favor wit hout a t rial.” I d. at pp. 1- 2. On May 11, 2017, t he plaint iff filed a pleading seeking an “ ext ension of t im e t o file disposit ive m ot ions due t o an at t orney current ly looking int o m y case file.” ECF# 69. I n t his print ed pleading, t he plaint iff refers t o her original request for appoint m ent of counsel because she finds “ it very difficult t o underst and t erm s and t he 2 st at ing of t he laws.” I d. The court grant ed t his ext ension of disposit ive m ot ion deadline t o June 9, 2017. ECF# 71. On June 14, 2017, t he court issued an order t o show cause as t he plaint iff had filed not hing, and t he deadline of May 31, 2017, for t he plaint iff t o file her response t o t he defendant ’s pending disposit ive m ot ion had passed, as had t he deadline of June 9, 2017, for t he plaint iff t o file her own disposit ive m ot ion. ECF# 72. This order referred t o an em ail t hat plaint iff had sent t o t he m agist rat e j udge’s cham bers and t hat had been forwarded t o t he dist rict court ’s cham bers. The em ail said an at t orney was evaluat ing her case, and m ore t im e was needed. The court ’s order point ed t he plaint iff t o D. Kan. Rule 6.1 for t he filing of m ot ions for ext ension of t im e and indicat ed t he rule did not allow for an em ail t o subst it ut e for t he filing of a m ot ion. The court t hen ordered, “ t hat t he plaint iff shall have unt il June 23, 2017, t o show cause why t his court should not find t he plaint iff t o have waived her right t o file a response t o t he defendant ’s sum m ary j udgm ent m ot ion and grant t he defendant ’s m ot ion as uncont est ed pursuant t o D. Kan. Rule 7.4( b) .” I d. at p. 2. I nst ead of filing a m ot ion for ext ension of t im e or a response t o t he show cause order by June 23, 2017, t he plaint iff filed on June 26, 2017, a m ot ion for appoint m ent of counsel. ECF# 73. The plaint iff’s appoint m ent m ot ion list s t he nam es of at least six at t orneys wit h whom she consult ed. I n an at t ached pleading, she furt her st at es t hat t hree at t orneys were cont act ed 3 in t he past t wo m ont hs and t hat she “ does not feel qualified t o cont inue wit hout one.” ECF# 73- 1. This pleading concludes, “ I am filing paperwork for appoint m ent of counsel and financial st at ue along wit h a reply for t o ( sic) show cause why t he court should not find t he plaint iff t o have waived her right t o file.” ECF# 73- 1. The plaint iff has filed an affidavit of financial st at us ( ECF# 74) and has at t ached t o it a m ot ion t o proceed wit hout prepaym ent of fees ( ECF# 74- 1) . The Magist rat e Judge has already grant ed t he plaint iff’s request t o proceed in form a pauperis. ECF# 6. There is not hing in t he plaint iff’s filings at ECF# # 73 and 74 t hat respond t o t he court ’s show cause order. Mot ion for Appoint m ent of Counsel ECF# 73 I n denying t he plaint iff’s original request for appoint m ent of counsel, t he Magist rat e Judge’s order fully addressed t he governing law and t he m at erial fact ors applicable here: Ms. Pralle also request s t hat she be appoint ed counsel. A part y t o a civil act ion has no const it ut ional right t o appoint m ent of counsel. Sect ion 1915( e) ( 1) provides t hat t he “ court m ay request an at t orney t o represent any person unable t o afford counsel.” I n addit ion t o det erm ining t he financial need of t he m ovant , if t he court det erm ines t he m ovant has a colorable claim , t hen it “ should consider t he nat ure of t he fact ual issues raised in t he claim and t he abilit y of t he plaint iff t o invest igat e t he crucial fact s.” The Tent h Circuit has adopt ed several fact ors for det erm ining whet her appoint m ent of counsel is appropriat e, including: “ t he m erit s of t he lit igant ’s claim s, t he nat ure of t he fact ual issues raised in t he claim s, t he lit igant ’s abilit y t o present [ her] claim s, and t he com plexit y of t he legal issues raised by t he claim s.” The part y m oving for appoint m ent of counsel bears t he burden t o convince t he court t here is sufficient m erit t o [ her] claim t o warrant appoint m ent of counsel. 4 I n support of her m ot ion, Ms. Pralle provides t he court wit h som e of her background, explaining t hat she “ st ood up for what [ s] he felt was right and was wrongfully t erm inat ed and hum iliat ed for believing [ she] did right .” She furt her assert s t hat she “ enj oyed working at Walm art and did a very nice j ob for t hem .” She st at es t hat where she lives t here are “ very few at t orneys let alone good cell phone service” and she list s several at t orneys she cont act ed, but who apparent ly declined t o t ake her case. Ms. Pralle has not offered any argum ent t hat her case involves unique or unusually com plicat ed fact ual or legal issues. She alleges wrongful t erm inat ion in ret aliat ion for her report ing sexual harassm ent in t he workplace. She has not suggest ed any unique circum st ances ham pering her abilit y t o prosecut e her claim s. The court can assum e t hat Ms. Pralle lacks form al legal educat ion or experience, but t his is t rue of m ost pro se lit igant s. Therefore, Ms. Pralle’s m ot ion for t he appoint m ent of counsel is denied wit hout prej udice. As a pro se lit igant Ms. Pralle is personally responsible for her case. ECF# 6, pp. 2- 3 ( foot not es and cit at ions om it t ed) . The plaint iff did not seek review of t he Magist rat e Judge’s order. The plaint iff’s current m ot ion for appoint m ent does not address any of t he grounds on which t he Magist rat e Judge relied in denying her first m ot ion. The plaint iff’s feeling t hat she is not qualified t o cont inue does not m eaningfully address any of t he relevant fact ors. Subj ect ive feelings put t he court in no bet t er posit ion t o j udge t he plaint iff’s abilit y t o present t he case. As t he Magist rat e Judge observed, t he lack of a form al legal educat ion is com m on for m ost pro se lit igant s which also can explain why t hey, t he plaint iff t oo, m ay feel unqualified t o follow t he court ’s rules of procedure. I f t his unfam iliarit y wit h legal procedures and t he feeling of not being qualified were enough t o j ust ify appoint m ent , t hen t his fact or would be det erm inat ive 5 for m ost appoint m ent request s, and appoint m ent would becom e t he rule in pro se cases. I nst ead, court s look at w het her t he pro se lit igant has shown her case t o be unique or unusually com plicat ed. Brown v. Dorneker, 2007 WL 2900189, at * 2 ( D. Kan. Oct . 4, 2007) ; Hale v. Geo Group, I nc., 2012 WL 12906529 at * 1 ( D.N.M. Dec. 26, 2012) ( “ except ional circum st ances” ) . The plaint iff here does not dem onst rat e any unusual circum st ances t hat would keep her from reading, com prehending and com plying wit h t he court ’s procedural requirem ent s. I nst ead, t he plaint iff’s pro se st at us did not prevent t he com plet ion of discovery or t he filing of a pret rial order. Up t o now, she has shown herself capable of present ing her posit ions in an int elligent and coherent m anner. The deposit ion excerpt s at t ached t o t he defendant ’s disposit ive m ot ion display t he plaint iff capably part icipat ing in t hem . Revisit ing t he plaint iff’s request for appoint m ent of counsel based on t he circum st ances argued now and before and based upon t he m agist rat e j udge’s prior decision and t he current procedural post ure of t he case, t he court denies t he m ot ion as it finds t hat t he nat ure of t he fact ual issues, t he m erit s of t he claim s, t he plaint iff’s abilit y t o present her claim s and t he com plexit y of t he legal issues do not warrant in t he court ’s discret ion grant ing t he request for counsel under 28 U.S.C. § 1915( e) ( 1) . The m ot ion for appoint m ent is denied. 6 Mot ion for Sum m ary Judgm ent ECF# 67 Not only has t he plaint iff not responded t o t he defendant ’s m ot ion, but she also has filed not hing in response t o t he court ’s order t o show cause and has not sought an ext ension of t im e despit e t he court ’s earlier warning and direct ions for doing so. Thus, t he court will follow D. Kan. Rule 7.4( b) , as t he consequence warned in it s order t o show cause. This Rule provides t hat a court m ay grant t he uncont est ed m ot ion wit hout furt her not ice. The Tent h Circuit , however, has held t hat , “ a part y’s failure t o file a response t o a sum m ary j udgm ent m ot ion is not , by it self, a sufficient basis on which t o ent er j udgm ent against t he part y.” Reed v. Bennet t , 312 F.3d 1190, 1195 ( 10t h Cir. 2002) . The court said: The dist rict court m ust m ake t he addit ional det erm inat ion t hat j udgm ent for t he m oving part y is “ appropriat e” under Rule 56. Sum m ary j udgm ent is appropriat e only if t he m oving part y dem onst rat es t hat no genuine issue of m at erial fact exist s and t hat it is ent it led t o j udgm ent as a m at t er of law. By failing t o file a response wit hin t he t im e specified by t he local rule, t he nonm oving part y waives t he right t o respond or t o cont rovert t he fact s assert ed in t he sum m ary j udgm ent m ot ion. The court should accept as t rue all m at erial fact s assert ed and properly support ed in t he sum m ary j udgm ent m ot ion. But only if t hose fact s ent it le t he m oving part y t o j udgm ent as a m at t er of law should t he court grant sum m ary j udgm ent . See Am aker v. Foley, 274 F.3d 677, 681 ( 2d Cir. 2001) ; Anchorage Assoc. v. Virgin I slands Board of Tax Review , 922 F.2d 168, 175–76 ( 3d Cir. 1990) ; Livernois v. Medical Disposables, I nc., 837 F.2d 1018, 1022 ( 11t h Cir. 1988) . 312 F.3d at 1195. By t he t erm s of Rule 7.4( b) , he plaint iff has waived her right t o file a response opposing sum m ary j udgm ent or cont rovert ing t he fact s set out in t he m ot ion. The defendant ’s m ot ion st ill m ust m eet it s init ial 7 burden of product ion under Rule 56( c) . Neal v. Lewis, 414 F.3d 1244, 1248 ( 10t h Cir. 2005) ( “ I f t he evidence produced in support of t he sum m ary j udgm ent m ot ion does not m eet t his burden, ‘sum m ary j udgm ent m ust be denied even if no opposing evident iary m at t er is present ed.’” ( quot ing Reed, 312 F.3d at 1194) ) . Thus, t he court m ay now accept as t rue t he m ovant ’s m at erial fact s as set fort h and properly support ed and det erm ine whet her t he m ovant is ent it led t o j udgm ent as a m at t er of law on t hose fact s. “ Sum m ary j udgm ent is appropriat e only if ‘t he m ovant shows t hat t here is no genuine issue as t o any m at erial fact and t he m ovant is ent it led t o j udgm ent as a m at t er of law.’” Tolan v. Cot t on, ––– U.S. ––––, 134 S.Ct . 1861, 1866, 188 L.Ed.2d 895 ( 2014) ( quot ing Fed. R. Civ. P. 56( a) ) . A fact ual disput e is “ m at erial” only if it “ m ight affect t he out com e of t he suit under t he governing law.” Anderson v. Libert y Lobby, I nc., 477 U.S. 242, 248, ( 1986) . The inquiry is whet her t he evidence present s a sufficient disagreem ent t o require subm ission t o t he j ury or whet her it is so one- sided t hat one part y m ust prevail as a m at t er of law. I d. at 251–52. Hired in 2005, t he plaint iff Pralle worked at t he Marysville Walm art St ore unt il her t erm inat ion on Decem ber 7, 2012. She received and acknowledged reviewing and underst anding Walm art ’s different policies t hat included Discrim inat ion and Harassm ent Prevent ion, Coaching for I m provem ent , At t endance and Punct ualit y, and a St at em ent of Et hics t hat addressed m isuse of com pany propert y and conflict s of int erest . During her 8 em ploym ent at Walm art , t he plaint iff did not m ake any com plaint s about sexual harassm ent and did not report any allegat ion of sexual harassm ent t o any salaried m em ber of m anagem ent pursuant t o t hese policies. For t hat m at t er, t he plaint iff never com plained during her em ploym ent of a host ile work environm ent or ret aliat ion. Over t wo m ont hs aft er her t erm inat ion, t he plaint iff report ed t o Walm art ’s Et hics Hot line t hat during t he first half of 2012 t he Cust om er Service Manager Carrie Svoboda had sexually harassed a vendor by t easing him at t he service desk. The plaint iff t est ified t hat Svoboda’s conduct did not offend her, but it had m ade her uncom fort able because she was responsible for report ing conduct . Walm art invest igat ed t his hot line m at t er. During t his invest igat ion, t he plaint iff raised ot her incident s and concerns of m ist reat m ent , all of which were invest igat ed t oo. The plaint iff did receive four writ t en coachings during her em ploym ent wit h Walm art . I n her deposit ion, t he plaint iff t est ified t hat she was t erm inat ed because of her four writ t en coachings and t hat t he writ t en coachings were given for her policy violat ions, including her use of anot her associat e’s discount card. The plaint iff had difficult y int eract ing wit h ot her em ployees about whom she crit icized t heir perform ance. Besides com plaining t o t he st ore m anager about t hem , she m et wit h m anagers as part of t heir effort s t o im prove t he work environm ent . I n 2011, t he plaint iff repeat edly com plained about t he poor perform ance of a co- associat e, and t hese m at t ers were discussed wit h t he st ore m anager. I n Sept em ber of 9 2012, t he plaint iff m et wit h a hum an resources m anager t o discuss her concerns about co- associat es and m anagem ent ’s concerns about t he work environm ent at t he service desk. Com plaint s about t he plaint iff’s m ist reat m ent of co- associat es cont inued, so t he st ore m anager m et wit h t he plaint iff in Oct ober t o discuss her conduct , it s im pact on ot hers, and Walm art ’s expect at ions. Guidance was also provided. When t he plaint iff cont inued t o m ist reat ot hers, t he st ore m anager issued a writ t en coaching for insubordinat ion for creat ing a difficult work environm ent . I n Novem ber of 2012, t he st ore m anager heard t he plaint iff m ake repeat ed calls for a cust om er service m anager t o open her cash regist er. Aft er video surveillance was reviewed, m anagers confront ed t he plaint iff wit h what t hey saw. The plaint iff adm it t ed she was conduct ing personal business while working and was using t he st ore’s cash regist er t o m ake change in order t o facilit at e her personal t ransact ions. On Decem ber 7, 2012, Walm art t erm inat ed plaint iff’s em ploym ent for conduct ing personal business while on t he j ob and using com pany resources t o do so. The plaint iff filed a charge of discrim inat ion wit h t he Kansas Hum an Right s Com m ission ( “ KHRC” ) on June 7, 2013, and t he KHRC issued a finding of no probable cause on Novem ber 13, 2014. The Equal Em ploym ent Opport unit y Com m ission ( “ EEOC” ) adopt ed t he KHRC’s findings and issued a right - t o- sue not ice dat ed as m ailed on January 12, 2015. The 10 plaint iff filed her federal court com plaint on July 9, 2015, 178 days aft er t he EEOC’s issuance of t he not ice. Tim eliness of Federal Act ion Early in t his case, t he defendant filed a Fed. R. Civ. P. 12( b) ( 1) m ot ion t o dism iss for lack of j urisdict ion, as t he plaint iff had failed t o file her lawsuit wit hin t he 90- day window of 42 U.S.C. § 2000e- 5( f) ( 1) . ECF# 11. I n denying t his m ot ion, t he court point ed out t hat t his filing requirem ent is “ not j urisdict ional in charact er but serve[ s] as a st at ut e of lim it at ions and, t herefore, [ is] . . . subj ect t o waiver, est oppel, and equit able t olling.” ECF# 19, p.2 ( cit at ions om it t ed) . The court not ed t he cont rolling law in t his circuit t hat t he 90- day lim it at ion period is not t riggered unt il t he plaint iff act ually receives t he right - t o- sue let t er. I d. p. 3. The defendant argued for dism issal based on t he rebut t able m ailing t im e presum pt ion given t o t he right - t o- sue let t er m ailed on January 12, 2015. The court liberally const rued t he plaint iff’s com plaint as alleging t hat she did not receive t his January 12, 2015, unt il it arrived as an enclosure in t he EEOC’s subsequent correspondence dat ed April 12, 2015. The court concluded: “ This inferred allegat ion is sufficient t o allege com pliance wit h t he ninet y- day filing requirem ent and t o rebut t he m ailing- t im e presum pt ion at t his pleading st age. The t im eliness issue rem ains one for discovery and decision.” I d. at p. 5. 11 The defendant now seeks sum m ary j udgm ent on t he unt im eliness of t he plaint iff’s federal act ion saying t he 90- day lim it at ion period expired on April 15 or 17, 2015. ECF# 67, p. 16. The defendant ’s sum m ary j udgm ent m ot ion right ly challenges t he plausibilit y of t he plaint iff’s bare allegat ion t hat she did not receive t he let t er wit hin t he rebut t able presum pt ion t im e. The m ailing- t im e “ presum pt ion is rebut t able . . . evidence denying receipt creat es a credibilit y issue t hat m ust be resolved by t he t rier of fact .” Wit t v. Roadway Exp., 136 F.3d 1424, 1430 ( 10t h Cir.) , cert . denied, 525 U.S. 881 ( 1998) . At sum m ary j udgm ent , “ a nonm oving part y m ay not rely m erely on t he unsupport ed or conclusory allegat ions cont ained in his pleadings.” Conaway v. Sm it h, 853 F.2d 789, 792 ( 10t h Cir. 1988) ( cit at ions om it t ed) . Because t he plaint iff has waived her right t o present fact s and evidence t o support her allegat ion on when she received t he January 12t h right - t o- sue let t er, t here is not hing t o disput e t he rebut t able presum pt ion argued by t he defendant . The plaint iff’s com plaint was not filed wit hin t he required 90- day lim it at ion period. Consequent ly, t he com plaint is unt im ely and sum m ary j udgm ent is appropriat e. See Mosley v. Pena, 100 F.3d 1515, 1518 ( 10t h Cir. 1996) ( sum m ary j udgm ent for defendant affirm ed when plaint iff had failed “ t o point t o any record evidence t o support her bare allegat ion” t hat t he EEOC let t er was delivered on a lat er dat e) . 12 Subst ant ive Claim s Based on t he init ial product ion of uncont rovert ed fact s in it s m ot ion, t he defendant is also ent it led t o sum m ary j udgm ent on t he plaint iff’s claim s. The plaint iff’s allegat ions of sexually harassing conduct , even if support ed by proper evidence, are not hing t hat a rat ional j ury could find t o be sufficient ly severe and pervasive as t o const it ut e a host ile work environm ent . Having received no fact ual st at em ent s from t he plaint iff, t he record offers no fact ual basis for im put ing liabilit y t o t he defendant . This is part icularly t he case because t he plaint iff never com plained of or report ed sexual harassm ent and t here is no evidence of t he defendant ’s const ruct ive knowledge of t he harassm ent . And for t hat m at t er, wit hout evidence t hat t he plaint iff com plained of harassm ent before her t erm inat ion, t here can be no prim a facie case of ret aliat ion. Finally, t he defendant ’s legit im at e nondiscrim inat ory reasons for t erm inat ing t he plaint iff st and uncont rovert ed and are prevailing. I T I S THEREFORE ORDERED t hat t he plaint iff’s renewed m ot ion for appoint m ent of counsel ( ECF# 73) is denied; I T I S FURTHER ORDERED t hat based on t he plaint iff’s failure t o respond t o t he court ’s order t o show cause ( ECF# 72) and failure t o respond t o t he defendant Walm art St ores, I nc.’s m ot ion for sum m ary j udgm ent ( ECF# 66) , Walm art ’s sum m ary j udgm ent m ot ion is grant ed as uncont est ed because t he uncont rovert ed m at erial fact s properly support ed by t he record 13 and t he cont rolling law show Walm art is ent it led t o j udgm ent as a m at t er of law. Dat ed t his 30 t h day of June, 2017, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
