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KIPNIS v. BARAM

December 2, 1996

KENNETH KIPNIS, Plaintiff,
v.
DAVID J. BARAM, Administrator, General Services Administration, Defendant.



The opinion of the court was delivered by: CASTILLO

 Presently pending before the Court is defendant David Baram's motion to dismiss plaintiff Kenneth Kipnis' amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. *fn1" The Court has previously advised the parties that it would convert the motion to dismiss into a motion for summary judgment, as provided for in Rule 12(c). After due consideration of the parties' submissions, we grant summary judgment in favor of the defendant.

 RELEVANT FACTS

 Kipnis works in the Chicago regional office of the General Services Administration agency (GSA). Amended Complaint ("Am. Compl.") P 4. In 1993, Virginia Grant, one of his subordinates, filed a sexual harassment charge against him with the GSA's Regional EEO Officer, Marjorie Walton. Kipnis alleges that Walton prepared a gender-biased and false Report of Inquiry that contained only Grant's unsubstantiated allegations and did not contain any documents or facts discrediting the allegations. Id. PP 5-8. Kipnis charges that Walton had a "conflict of interest" because she was "a witness to certain events" and knew of other complaints previously made against Kipnis by other subordinates. Id. P 6. Walton circulated the report among GSA management. Id. P 9.

 In Kipnis' response to the motion to dismiss, *fn2" he expands upon some of the statements made in his amended complaint. Kipnis and Grant had been involved in an intimate consensual relationship. Pl.'s Resp., Ex. 2 (EEO Report of Inquiry). After the affair ended, they were involved in an altercation in which Kipnis allegedly assaulted Grant, prompting Grant to file a complaint with Walton. Id. Kipnis alleges that, according to the GSA's written procedures, Walton should have assigned Grant's complaint to a collateral duty officer rather than conducting the investigation herself. Pl.'s Resp. at 4. Kipnis also claims that Walton knew that at least one of the other sexual harassment claims filed earlier against Kipnis could not be sustained. Id. at 3-4. Kipnis sent out memoranda complaining about the biased, false report to Walton and others at the GSA. Am. Compl. P 16.

 Earlier in 1993, prior to Grant's allegations of sexual harassment against Kipnis, Kipnis submitted a suggestion to the GSA's award program. This program is designed to reward employees for their cost-saving suggestions. Pl.'s Resp., Ex. 5. The GSA has guidelines for determining the amount of employee awards, based on the amount of money that the agency will save in the first year after the suggestion is implemented. Id. at 9. Supplemental awards must be paid if suggestions are adopted outside of the region. Id. at 13. Kipnis suggested that the GSA make it a priority to renegotiate its existing leases to take advantage of lower rents available in some markets.

 On December 3, 1993, two days after he filed his formal complaint of sexual harassment based on the handling of Grant's allegations, Kipnis received a $ 500 award for the suggestion that he had submitted earlier. Am. Compl. P 17. He was asked to address certain concerns about his suggestion, and he did so. Id. Despite his additional work, however, the amount of his award was not increased. Id. P 19. Kipnis also believes that his suggestion was adopted outside the region, but he has not received any supplementary award. Pl.'s Resp. at 5-6. Kipnis requested that his award be reevaluated, but his request was denied. Id. at 6.

 In Count I of the Amended Complaint, Kipnis alleges that he has suffered sex discrimination, and that as a result of the biased report prepared by Walton, he will not be promoted or receive favorable assignments. Am. Compl. P 10. Count II asserts that the GSA retaliated against Kipnis for filing a sexual harassment complaint by refusing to give him a higher award. Id. P 18.

 STANDARDS

 Because various documents outside of the pleadings have been filed, this Court determined that Baram's motion to dismiss should be converted into a motion for summary judgment. A court can grant summary judgment even though neither party has moved for it, as long as it gives notice to the party against whom the court proposes to enter summary judgment. Eliasen v. Itel Corp., 82 F.3d 731, 738 (7th Cir.), cert. denied, 136 L. Ed. 2d 304, 117 S. Ct. 388 (1996). As the United States sought a case-dispositive outcome in its motion, Kipnis was properly notified of the proper manner in which to contest the government's evidentiary materials and the consequences of failing to do so. See English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993). Kipnis has been afforded the opportunity to present the extrinsic evidence which he believes creates a triable issue and has submitted such materials to the Court for its consideration in ruling on the instant motion. Given that Kipnis has availed himself of the opportunity to submit materials outside the pleadings, to the extent the Court finds it has jurisdiction, it may treat the motion as one for summary judgment. See FED. R. CIV. P. 12(c).

 Summary judgment is proper only if the record shows 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. FED. R. CIV. P. 56(c). In determining whether a genuine issue exists, the Court "must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-movant must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial" in order to withstand a motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In considering a motion for summary judgment, the Court considers all evidence in the light most favorable to the non-moving party and draws all inferences in that party's favor. Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 344 (7th Cir. 1996). However, if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 In making its determination, the Court's sole function is to determine whether sufficient evidence exists to support a verdict in the non-movant's favor. Credibility determinations and the weighing of evidence are jury functions, not those of a judge deciding a motion for summary judgment. Anderson, 477 U.S. at 255. In an employment discrimination suit, where credibility and intent are pivotal issues, ...


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