JULIE A. ROBINSON, Chief District Judge.
Plaintiff Florinda Zamora ("Zamora") brings this action against Defendant Unified Government of Wyandotte County and Kansas City, Kansas (the "UG"), alleging that the UG violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., when it terminated her employment at the Wyandotte County Juvenile Detention Center ("JDC") in retaliation for reporting a coworker's inappropriate conduct toward a juvenile resident. This matter is now before the Court on the UG's Motion for Summary Judgment (Doc. 75). The motion is fully briefed, and the Court is prepared to rule. For the reasons set forth in depth below, the UG's motion is denied.
Summary judgment is appropriate if the moving party demonstrates "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law."
The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.
Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Before turning the parties' statements of fact, the Court will briefly address the UG's objections to two of Zamora's statements of fact. Summary judgment evidence need not be "submitted `in a form that would be admissible at trial.'"
The UG objects to Zamora's Statements of Fact 78 and 117 on the basis that they contain inadmissible hearsay, meaning a statement that the declarant does not make while testifying at the current trial or hearing and that a party offers to prove the truth of the matter asserted.
Zamora's Statement of Fact 78 relies on the deposition testimony of Kansas City, Kansas Police Detective Vincent Kingston concerning statements made to him—during the course of his investigation of the events underlying this case—by JDC employee Ryan Schuler, about what was said to Schuler by another JDC employee, Kelsey Davis, concerning something Davis heard from a Sheriff's Office employee, Andrew Carver. Similarly, Zamora's Statement of Fact 117 refers to Davis's "testimony" about the "exact words" Zamora said about Davis to another of the Sheriff's Office employee, Daniel Anderson, which Anderson then repeated to Carver and Carver relayed to Davis. The source cited to support this fact is the deposition testimony of an investigating Sheriff's detective, Sherry Simpson, about Davis's unsworn statement to her. It is not entirely clear which portions of these statements of fact the UG objects to because the UG makes largely identical factual assertions in its own briefing.
While Fed. R. Civ. P. 56(c)(1)(A) permits Zamora to support her factual assertions at the summary judgment stage by citing to deposition testimony,
With the above rules of law and evidence in mind, the following material facts are either uncontroverted or, if controverted, construed in the light most favorable to Zamora.
The UG is a municipality located in Wyandotte County, Kansas City, Kansas, and a recipient of federal financial assistance. The JDC is a division of the Wyandotte County Sheriff's Office ("Sheriff's Office") within the UG. The JDC is licensed by the Kansas Department of Children and Family Services ("DCF") as a child-care facility under Kansas law, and is subject to detailed regulations. DCF monitors the JDC's compliance with regulations and can revoke its license for failure to comply.
The JDC is licensed to hold forty-eight juveniles, both male and female, from the ages of ten to seventeen. JDC residents are juvenile offenders facing criminal charges; many have behavioral problems and/or have been raised in difficult environments. Some residents have been abused, some are gang members, and many have a history of substance abuse. The JDC is a secure facility, and residents are not permitted to leave. All entrances and exits are under the exclusive control of the staff and are continuously monitored. Residents are housed in one of four pods, each with eight to sixteen rooms. The pods are locked and access is limited; at night, residents are required to be in their rooms and the doors are locked from the outside. There are security cameras throughout the facility, and monitors are set up in a control booth. JDC residents are supervised by juvenile care workers, also called juvenile detention officers. At least one juvenile detention officer is assigned to each pod at all times, and juvenile detention officers control the movements of residents and supervise them twenty-four hours per day.
Don Ash is Sheriff of the Sheriff's Office and, by law, has charge and custody of the JDC. At all relevant times, Jeff Fewell, a Colonel in the Sheriff's Department and Warden of the JDC, was responsible for the custody, care, control, safety, and security of the juvenile residents of the JDC. He reported to Undersheriff Larry Roland and to Sheriff Ash. Terri Broadus, the JDC Administrator, was responsible for administering all operations of the JDC and reported to Fewell.
Major Daniel Soptic, Lieutenant Colonel Robert Gunja, Detective Sherry Anderson-Simpson ("Simpson"), and Deputy Daniel Anderson were all employed by the Sheriff's Office in the roles indicated by their titles. Andrew Carver was a detective in the Sheriff's Office and, during the events underlying this action, was promoted to captain. Vincent Kingston was a detective in the Internal Affairs Division of the Kansas City, Kansas Police Department.
Plaintiff Florinda Zamora was employed as a juvenile detention officer at the JDC, as were Kelsey Davis, Angela Garcia, Kathy Harrington, Peair Howard, Ryan Schuler, and Jaya Paden. During the time period at issue, Davis was engaged to Carver, and they are now married. Lieutenant Jelani Coppage was a shift supervisor at the JDC, overseeing juvenile detention officers. Adrienne Gilchrist was also a lieutenant at the JDC. Duane Olden was a JDC maintenance worker. Minors J.K., B.R., and N.C. were male residents at the JDC.
DCF regulations applicable to the JDC require that "[c]lassroom instruction . . . be provided on-site by teachers holding appropriate certification from the Kansas board of education," and that "[e]ducation services shall be coordinated with the local school district."
The School District independently administers and operates the school inside the JDC. The School District employs and assigns the principal, the teachers, and other support personnel. The School District determines the curriculum and monitors the students' progress, and provides all books, materials, and supplies. The JDC has no input into staffing or programming for the school, and the classrooms are separate from the pods where JDC residents live. However, as required by regulations, at least one juvenile detention officer is stationed in each classroom and directly observes classroom activity to provide support to the teacher. The juvenile detention officer's function is to provide security and to help insure order, not to assist with instruction.
Neither the UG nor the Sheriff's Office has entered into a contract with the School District concerning the JDC school. The UG and the Sheriff's Office do not pay any funds to the School District for administering and operating the School, nor do the UG, the Sheriff's Office, or the JDC receive any payment from the School District for providing classroom space or security for the school. Like the UG, the School District is a recipient of federal financial assistance. The School District is subject to Title IX.
Per its Human Resources Guide, the UG "will not tolerate harassment of employees," including sexual harassment.
The UG "encourages employees to report harassment before it becomes severe or pervasive. Even if harassment does not rise to the level of a violation of federal or state law, the Unified Government will take action to stop it."
The JDC has a manual for juvenile residents that includes rules of conduct. Rule 5 states that physical contact is prohibited and that criminal charges could be filed for touching another resident or staff member in a sexual manner.
The JDC maintains a Release of Information policy. All juvenile detention officers are given a copy of this policy, and Zamora believes that she probably received a copy. The Release of Information policy states: "It is the policy of the Juvenile Detention Center to ensure that all juvenile records are safeguarded from unauthorized or improper disclosure."
Under the Release of Information policy, "[a]ny disclosure of record material to unauthorized persons or agencies constitutes a [breach] of trust and is restricted by law."
A copy of an incident report that concerns a JDC resident is placed in the resident's file. The report is considered confidential under the Release of Information policy, and the unauthorized release of the report or the information contained therein is a violation of the policy.
On May 25, 2016, Zamora was cleaning the windows in the control booth, which overlooks the pod where Davis was working. Harrington was also present in the control booth. Both Zamora and Harrington observed Davis walking with J.K., a seventeen-year-old male resident. Zamora observed J.K. walking on the left side of Davis with his right arm around her waist, and Davis with her left hand on J.K.'s right shoulder. Davis was talking to J.K., but Zamora could not hear what she was saying. Zamora believed that Davis's conduct toward J.K. was inappropriate because "it's jail," and "you don't walk around the pod like that."
Zamora immediately informed her shift supervisor, Lieutenant Coppage, of what she had observed. Coppage responded, "You're right, you're right to report this,"
After Zamora completed her written report, she also told Broadus, the JDC Administrator, what she had seen. Broadus, like Coppage, agreed that the May 25, 2016 incident between Davis and J.K. needed to be reported. While the UG did not take any immediate steps in response to the May 25 incident, Zamora did see a change in Davis's behavior toward the residents. Zamora noted that Davis no longer went into residents' rooms and, while she would still sit and talk with residents, she no longer bent over tables while doing so. Rather, Davis would keep her distance from residents and appeared to have corrected her behavior.
On July 14, 2016, Harrington submitted a report on a second incident involving Davis, J.K., and another JDC resident, B.R. Harrington reported that on June 28, 2016, she observed Davis alone in the pod with the two residents, and that Davis was
Olden also wrote a report about this incident, stating that he was called to the control room by Harrington to view activity in the pod and witnessed
Olden thought it was "really out of character for an employee to be interacting with a resident in that way."
At the time of the two foregoing incident reports, Davis was engaged to Carver, a detective in the Sheriff's Office who was normally responsible for investigating allegations of employee misconduct. Because of the relationship between Carver and Davis, Sheriff Ash decided to ask the Kansas City, Kansas Police Department's Internal Affairs Unit ("KCKPD Internal Affairs") to investigate the allegations against Davis. Captain Soptic, who supervised the Sheriff's detectives, along with his supervisor, Lieutenant Colonel Gunja, told Carver that there was a complaint against his fiancée and that Carver would not be involved in the investigation. Soptic and Gunja did not go into the details of the allegations, apart from mentioning that there was a video showing Davis's conduct with two JDC residents and that it looked like "high school flirting."
Davis first found out about the investigation from Carver, who spoke to her about it before she was interviewed. Carver told Davis that there was a video of her conduct. On July 14, 2016, Broadus called Davis to advise her that an outside agency would be investigating allegations against her. Broadus told Davis that she could not give her any details about the allegations.
At some point, Zamora told Deputy Anderson about the incident involving Davis and J.K. that she witnessed in May 2016. Anderson, who was close friends with Carver, worked in the Sheriff's Office and was assigned to patrol. Anderson did not work in the JDC and Zamora testified that she had never seem him there. Zamora recalled that Anderson responded, "I'm going to tell my buddy [Detective Carver]. That's his girlfriend."
Detective Kingston from KCKPD Internal Affairs was assigned to conduct the investigation into the reported incidents involving Davis, and that investigation officially began on July 18, 2016—more than fifty days after the first observed incident of Davis inappropriately touching a juvenile resident on May 25. On July 19, 2016, Kingston took a statement from Zamora in which she recounted what she had observed on May 25. Zamora also told Kingston that on a subsequent occasion, she and Schuler had observed Davis and J.K. sitting next to each other, with J.K.'s head resting on Davis's shoulder. Zamora did not report this additional incident when it occurred. Her account of this interaction between Davis and J.K. is consistent with Schuler's witness statement to Kingston; Schuler also stated his belief that Davis's actions on this occasion were inappropriate.
Zamora further reported that if Davis was playing cards with J.K., she would lean across the table with "her rear end up in the air and just sit there and talk with him."
On August 5, 2016, Kingston took a statement from Davis. Davis denied having an inappropriate relationship with any of the residents. She stated that she and the other officers were encouraged to form relationships with the kids and that she would "horseplay around" with them.
During additional questioning about the June 28 incident reported by Harrington and Olden, Davis denied allowing J.K. to touch her or touch her legs, but also stated that she could not remember everything about that encounter. She did ultimately recall that J.K. asked to see her engagement ring and that she let him look at it, and that she permitted J.K. strike her on the kneecap while she was explaining what reflexes are. Davis stated that she had allowed other residents to do the same. J.K. also tried to tie Davis's shoe. The video recording of the June 28 incident confirms that Davis did allow J.K. to touch her and to touch her leg. B.R. reported seeing Davis allow J.K. to touch her and stated that Davis treated J.K. more favorably than other residents.
Davis indicated that she had never been told by a supervisor not to let the residents touch her, nor had she been given any training about appropriate versus inappropriate conduct with residents. Detective Kingston testified that he could not speak to policies and procedures at the JDC, but that Davis's interactions with J.K. "would seem to be inappropriate."
On August 31, 2016—over three months after Davis was first observed interacting inappropriately with a juvenile resident—Kingston completed his investigation and prepared a report summarizing the results. Warden Fewell did not read Kingston's report, but viewed the video recording of Davis's conduct on May 25, 2016. Although Fewell testified that Davis should have been terminated if she lied to investigators, there is no evidence regarding whether Kingston shared his belief regarding Davis's truthfulness with his superiors.
On October 11, 2016, Fewell suspended Davis for five working days without pay for engaging in horseplay and inappropriate conduct with juvenile offenders. Davis filed a grievance regarding her suspension. She asked that the five-day suspension be reversed, that a non-disciplinary counseling statement be issued, and that training be provided on policy and procedure "so there is no confusion on what the employer[']s expectations are."
Sheriff Ash reviewed Kingston's report, and later testified in this case that he "did not see or read anything that indicated that [Davis] wasn't [truthful]."
Sheriff Ash concluded that Davis's conduct did not warrant a five-day suspension without pay, that Davis had demonstrated that training was not sufficient, and that they "needed to start with a written reprimand and training specific to address the alleged inappropriate behavior or conduct, and then work [their] way up from there in a progressive discipline manner rather than starting out with . . . a five-day suspension."
In addition to the three reports of inappropriate physical contact between Davis and a juvenile resident covered by Kingston's report, the UG had received a fourth report on August 6, 2016, one day after Kingston took a statement from Davis and several weeks before he completed his investigation. Jaya Paden, also a juvenile detention officer at the JDC, reported that one resident told her that Davis and Garcia were touching him and other juvenile residents inappropriately. Paden also reported that one resident told her that Davis and Garcia were allowing residents to touch them. Paden reported that the resident said, "it was more than touching going on."
The UG admits that it is a violation of its policy for JDC staff and residents to touch one another. The UG also admits that it is a violation of both UG policy and state law for JDC staff to bring in outside items for juveniles. However, Fewell is not aware of the UG having conducted any investigation into Paden's allegations, nor has the UG produced any documents in this case reflecting that an investigation occurred. Paden's allegations are not addressed in Kingston's report.
As the JDC Warden, Fewell would have knowledge of any disciplinary action against Davis or Garcia for engaging in inappropriate physical contact with minors or smuggling contraband into the facility. Fewell testified that he is not aware of whether Davis and Garcia were disciplined, nor has the UG produced documents reflecting that they were disciplined for this conduct.
On November 9, 2016, Juvenile Detention Officer Howard reported to his supervisors that a JDC resident, N.C., had notified him that he (N.C.) had engaged in a sexual relationship with Davis after he was released from the JDC on a previous occasion. Howard also reported that N.C. told him that Davis had allowed N.C. to grope and touch her in a sexual manner while he was a JDC resident.
It was Howard's report that prompted a second investigation into Davis. As a result of his report, the Sheriff's Office opened a criminal investigation into N.C.'s allegations. The second investigation was conducted not by KCKPD Internal Affairs, but by Simpson, a Sheriff's Office detective with fourteen years of experience. Carver, Davis's fiancé, was not involved in the investigation of the allegations in Howard's report, nor did Simpson ever discuss those allegations with him. However, Simpson was Carver's colleague and, at some point during the relevant events, became his subordinate when he was promoted to captain. Pursuant to UG policy requiring that a JDC staff member under investigation be removed from contact with residents, Davis was removed from the pods and assigned to the control booth, where she had no contact with residents. Howard was first interviewed on November 17, 2016; the narrative summary of that interview does not mention Zamora.
On November 22, 2016, Garcia sent a written report to Simpson. In that report, Garcia stated that Davis informed her that "apparently Officer Florinda Zamora . . . told Adult Deputy Anderson that the dumb shit they said I did happened at your house."
On November 30, 2016, after receiving Garcia's report, Simpson interviewed Anderson. During his interview, Anderson told Simpson that he talked to Zamora "once every blue moon."
Simpson interviewed Zamora later on November 30, 2016, following her interview of Anderson. When questioned, Zamora indicated that Howard had told her that N.C. stated that he had slept with Davis outside the JDC, and that she had told Howard that he had to report because they were mandated reporters. Zamora never saw Howard's report and did not assist him with it, nor did she ever witness any inappropriate contact between Davis and N.C. However, Zamora also told Simpson that N.C. told her in person that there was a rumor circulating about him sleeping with Davis. Zamora also told Simpson about her prior reports on Davis in the spring.
Although Zamora testified that she personally did not believe the allegation that N.C. had sex with Davis, she did admit during questioning by Simpson that she told Anderson "what [N.C.] said to [her]" directly, specifically that there was a rumor circulating about N.C. "hooking up with Ms. Davis, having sex with Ms. Davis."
At the time Zamora spoke with Anderson in the fall of 2016 about the allegations concerning N.C. and Davis, she was aware that Davis was engaged to Carver and that Anderson and Carver were friends. She also knew that there was a possibility that what she was telling Anderson would get back to Carver. Zamora did not tell Anderson that there was an investigation into Davis.
The day after interviewing Zamora, Simpson interviewed N.C., who denied having any type of relationship or physical contact with Davis. N.C. also denied telling Howard that he and Davis were boyfriend and girlfriend or that they used to meet. Further, N.C. denied telling Zamora that he knew Garcia outside the JDC. Rather, he stated that his cousin went to school with Garcia's kids, so he had seen Garcia "at like football games, and they were like oh, how you doing."
On December 21, 2016, Simpson interviewed Davis. Davis denied having any type of relationship with N.C., including a sexual relationship or associating with him outside the JDC. She did state that other juvenile detention officers and residents knew about the allegation that she was having sex with N.C. Davis stated that Zamora had told Anderson about the allegation when she knew that Anderson was a close friend of Davis's fiancé. Davis stated that she believed Zamora either wanted to make herself look good to Anderson or was trying to break up Davis and Carver's relationship. Simpson testified that Davis was upset and crying during her interview. Simpson also testified that she believed Davis, even though she did not talk to the investigator of the May 2016 incident. Davis gave notice of her resignation on the same date she was interviewed, December 21, 2016, and her resignation was effective January 11, 2017.
Sometime around January 3, 2017, Simpson transitioned the criminal investigation of Davis into an internal investigation of Zamora and Howard for "dishonesty, disclosing confidential information, harassment, interference with a criminal investigation, and failing to report."
However, Simpson testified that she believed Zamora "was probably truthful" when she stated that she had advised Howard to make a report regarding Davis and N.C.
Simpson completed her investigation and issued a report on January 12, 2017. In that report, Simpson "determined that the criminal investigation into Officer Kelsey Davis and Officer Angela Garcia was unfounded."
With respect to Zamora, Simpson also concluded that she had made accusations about Davis having sex with N.C. at Garcia's home based on assumptions, and that she had disclosed confidential information about those allegations to Anderson. Simpson testified that Zamora
Simpson briefed Fewell on the results of her investigation of Davis and Garcia, and informed him that she believed that Zamora and Howard had not been truthful. Fewell also reviewed Simpson's investigative report and the transcripts of the interviews she conducted. In a January 18, 2017 memorandum to Sheriff Ash and Undersheriff Roland, Fewell "strongly" recommended that Zamora's employment "be terminated based upon potential liability, damage due to [her] poor judgment in spreading rumors and violating confidentiality."
At some point, Ash and Fewell had a conversation about Fewell's January 18, 2017 memorandum, and Ash authorized Fewell to proceed with the termination of Zamora's employment. On January 23, 2017, Fewell met with Zamora and informed her that she was fired. Fewell read Zamora a memorandum stating the following reasons for her termination:
Zamora filed a grievance of her termination, which Sheriff Ash denied. Howard was also fired.
Fewell testified that Zamora violated K.S.A. § 65-507 and improperly disclosed government records when discussing the allegations about Davis and N.C. with N.C., Howard, and Anderson. Although he testified that discussions about a juvenile among JDC staff do not generally violate § 65-507 when necessary for "operational awareness,"
During the grievance hearing, Ash asked Zamora why she talked to Anderson. Zamora testified that she responded, "Anderson is my friend. I thought it would be all right to talk to Anderson."
Fewell further testified that Zamora was not truthful in three instances, including (1) telling Anderson that Davis had sexual relations with N.C. at Garcia's house; (2) claiming that she tried to report allegations involving a different juvenile possibly staying with a staff member; and (3) stating that N.C. asked her if she had heard the rumors involving him and Davis. Again, Anderson had told Simpson that he believed the information concerning a sexual relationship between Davis and N.C. had originated with Garcia.
Simpson testified that she concluded Zamora had been untruthful due to N.C.'s denial of her account and inconsistencies between Zamora's and Howard's statements. However, Simpson did not talk to other JDC staff members to determine N.C.'s reputation for truthfulness. Rather, she relied upon her review of N.C.'s phone calls, video recordings of Howard and N.C. together in the pod, and N.C.'s "shocked" reaction to the allegations in determining that his denial was credible. Lieutenant Coppage testified that he believed N.C. had made up the rumor about a sexual relationship between him and Davis; however, Coppage believed Howard's statement that N.C. had told Howard about such a relationship. When Simpson asked Garcia if she believed Howard was the type of officer N.C. would confide in, Garcia answered that she did not believe so because Howard is black and N.C. has made it known among JDC residents and staff that he does not like black people. Additionally, Garcia stated in her interview that during a JDC training session, Broadus had once brought up the fact that N.C. was a liar.
In her deposition, Zamora testified that she disagreed with the findings of the termination memorandum, but agreed that she was "fired for what they feel."
Although Fewell testified that one of the reasons he decided to terminate Zamora was because she had submitted a false report to Simpson during the investigation, the UG now concedes that Zamora did not submit a false report. There is no UG policy stating that an employee shall be terminated for violating K.S.A. § 65-507, and the UG has never terminated anyone for violating that statute other than Zamora and Howard.
Davis and Carver were engaged before the first investigation into Davis began. As noted above, in the late spring or summer of 2016, Soptic and Gunja told Carver that there was a complaint against his fiancée, that there was a video of her conduct, and that Carver would not be involved in the investigation. Soptic and Gunja did not go into the details of the allegations, but encouraged Carver to speak with Davis about his concerns. Carver did so before Davis was interviewed, and while the UG was investigating the May 2016 incident involving Davis and J.K., Davis was discussing information about the investigation with Carver, as well as with her JDC co-worker, Schuler. The UG did not discipline Soptic, Gunja, or Carver for sharing information about J.K. outside the JDC.
In addition, Anderson disclosed to Carver the later allegations regarding a sexual relationship between Davis and a former JDC resident, which Carver then repeated to Davis and Davis conveyed to Garcia. Although the UG denies that either Anderson or Carver stated the name of the juvenile in question, the UG admits that when Davis told Garcia what she had heard from Carver, Davis stated the identity of the minor, N.C. The UG admits that Davis disclosed details of a sensitive Internal Affairs investigation to Garcia.
When asked during his deposition whether people who shared information about juveniles outside the JDC chain of command should be disciplined, Fewell responded, "Absolutely."
The UG did not discipline Anderson, Carver, Davis, or Garcia for their disclosure of information relating to Davis's alleged sexual relationship with a former resident. In fact, during the course of the second investigation conducted by Simpson, Carver was promoted a rank and became Simpson's superior. Simpson knew that Carver had been discussing the allegations involving Davis and N.C. with others. In her deposition, Simpson testified to her belief that Anderson, who repeated the allegations to Carver, was not bound by the same confidentiality obligations as Zamora because he did not work at the JDC and had no way of knowing its rules and regulations.
Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity that receives Federal financial assistance."
Title IX mandates that recipients of federal financial assistance provide equal educational opportunities and protects against a wide variety of discriminatory conduct based on sex.
Congress clarified through the Civil Rights Restoration Act of 1987 ("CRRA") that Title IX is to apply to all operations of any department, agency, or other instrumentality of a state or local government that receives federal financial assistance, including agencies or departments that receive federal aid indirectly from other state entities.
Critically, however, the program in question must still be an education program or activity as set forth in § 1681 to be a covered by the statute's antidiscrimination mandate.
The Third Circuit recently analyzed, in Doe v. Mercy Catholic Medical Center,
"Whether a program or activity is sufficiently educational under Title IX is a mixed question of law and fact. When the facts are uncontested, the judge decides the matter. Factual disputes material to her legal conclusion are, however, left for the finder of fact."
It is undisputed here that the UG receives federal financial assistance, and the JDC is a division of the Sheriff's Office within the UG. The parties also agree that the school housed within the JDC is an "education program or activity" within the meaning of Title IX. However, the UG argues that all of the features of the school that make it "educational" are funded and controlled by the School District, not the UG. The UG's position is that because it is the School District, rather than the UG, that "operates" the school, Title IX does not apply. Zamora counters that cases applying Title IX in the prison context do not turn on the definition of "operate," but on whether the prison is a recipient of federal financial assistance.
Under the unique facts of this case, the Court finds that Zamora may proceed with her retaliation claim under Title IX. The UG cites no case law to support its argument that the application of Title IX turns on whether it "operates" the school other than two cases stating that in the absence of a different statutory or regulatory definition, "operate" should be given its ordinary meaning.
The UG acknowledges that as a "person acting as a parent" under K.S.A. § 72-3122(d)(2), the JDC is required to ensure that its residents attend school pursuant to K.S.A. § 72-3120(a).
Kansas law thus requires juvenile detention centers to provide for the education of their residents. Further, it is uncontested that residents of the JDC are minors who are required to attend school, as opposed to adult prisoners for whom taking courses would be optional. Although content instruction at the JDC school is provided by the School District, the JDC houses the school and its staff members are tasked with ensuring the safety and security of students, a critical function of any educational institution. Specifically, in compliance with the regulation set forth above, at least one juvenile detention officer is stationed in each JDC classroom and directly observes classroom activity to provide security and to help ensure order. Given Kansas law and these undisputed facts, the Court cannot credit the UG's argument that it does not in any way "control[], direct[], manage[], [or] conduct[]" the school.
The UG's argument that the Court should consider only the instructive facets of the JDC school in deciding whether Title IX applies, in isolation from the JDC as a whole, creates an artificial distinction and ignores that the education of its residents is one of the JDC's core functions. Because the JDC is required to ensure that its minor residents receive education services—through coordination with the School District and by providing a safe and secure space for instruction—its mission is, at least in part, "educational" within the meaning of Title IX.
The typical application of Title IX in the prison context involves a challenge to unequal educational opportunities for men and women prisoners, and it is within this context that courts have held that Title IX applies to entire state prison systems, requiring a comparison of educational opportunities available to men and women throughout those systems as a whole.
Retaliation against a person because that person has complained of sex discrimination constitutes intentional discrimination "on the basis of sex" in violation of Title IX.
The plaintiff bears the ultimate burden of proving that her employer intentionally discriminated against her,
If the plaintiff establishes a prima facie case, the burden shifts to the employer to offer a legitimate non-retaliatory reason for the adverse employment action.
There is no dispute that Zamora has established the second element of a prima facie case of retaliation, a materially adverse employment action, by demonstrating that the UG terminated her employment. The UG asserts that Zamora has not established the first and third elements.
Regarding the first element, the UG contends that Zamora's reporting concerning Davis did not constitute protected opposition to discrimination because her written May 25, 2016 report did not expressly mention Davis engaging in discrimination or harassment. Rather, Zamora's written report merely stated what she had observed—Davis and J.K. walking with J.K.'s arm around Davis's waist and Davis's hand on J.K.'s shoulder.
In a retaliation case, the plaintiff engages in protected opposition by opposing a practice made unlawful by the statute at issue.
The UG also argues that Zamora cannot establish the first element of a prima facie case because she had no reasonable, good-faith belief that harassment was occurring when she reported on Davis. While a retaliation plaintiff need not prove that the complained-of sex discrimination actually occurred, the plaintiff must have had a reasonable, good-faith belief that she was engaging in protected opposition to discrimination when making her report.
Given its finding that Title IX applies to the JDC on the facts of this case, and given that juvenile detention officers were responsible for supervising inmates, the Court looks to the underlying substantive law on teacher-on-student sexual harassment. A teacher's sexual harassment or abuse of a student constitutes discrimination on the basis of sex in violation of Title IX.
The UG contends that the behavior Zamora witnessed and reported was nowhere near severe, pervasive, and objectively offensive enough that Zamora could have reasonably believed Davis's behavior amounted to sexual harassment in violation of Title IX. However, for the Court to determine that Zamora held a reasonable belief that she was opposing prohibited conduct does not require the Court to first find that the conduct she reported was severe and pervasive enough to be unlawful because "a meritorious retaliation claim will stand even if the underlying discrimination claim fails."
The two instances of contact between Davis and J.K. that Zamora initially reported involved: (1) Davis and J.K. walking with J.K.'s arm around Davis's waist and Davis's hand on J.K.'s shoulder; and (2) Davis and J.K. sitting next to each other, with J.K.'s head resting on Davis's shoulder. While Zamora acknowledged in her deposition that Davis's conduct was not explicitly sexual because it did not involve intercourse or groping, such behavior would nonetheless seem suspect to any reasonable person observing it in the context of a teacher-student or guard-inmate relationship. The UG's sexual harassment policy, which admittedly is intended to address interactions among employees, aptly instructs that sexual harassment may be subtle and indirect, and includes conduct between individuals in a hierarchal relationship or conduct aimed at coercing an individual to participate in an unwanted sexual relationship. Further, JDC rules prohibit physical touching between residents and staff members. Consistent with UG policy and JDC rules, Zamora's superiors told her she was right to report Davis's conduct in May 2016, and Davis thereafter stopped her prior practice (which had been observed by Zamora) of bending over tables while conversing with residents. Further, the fact that Harrington, Olden, and Paden all reported physical conduct by Davis toward minors, including conduct that was "more than touching" per Paden's report, suggests a possible pattern of sexual conduct by Davis towards minor residents.
The Court is unwilling to find, on the record before it, that Zamora did not engage in protected opposition by reporting Davis's inappropriate physical contact with a juvenile inmate. "The relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX's guarantee of equal access to educational benefits and to have a systemic effect on a program or activity," with teacher-on-student harassment being more likely to violate Title IX than peer-on-peer harassment.
Satisfying the causal-connection element of a prima facie case of retaliation requires "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action."
The UG contends that Zamora has not shown that her discharge was causally connected to her report on Davis because the period of time between her May 2016 report and her firing is too long (eight months) to establish the necessary causal inference and she has failed to come forward with additional evidence to support causation. Zamora counters that the length of time between the protected activity and the adverse action should be measured from the date on which the UG made a final decision on its initial investigation of Davis, which occurred on October 31, 2016. Zamora claims that her firing three months later is sufficiently close in time to establish a direct, causal connection.
The Tenth Circuit has not announced a bright-line rule on the temporal proximity required between protected opposition and a materially adverse action. Rather, the court has explained:
The UG is correct that the relevant starting point is not when its investigation of Davis concluded, but when the protected activity occurred.
Although Zamora testified that she does not believe she was fired for Howard's November 2016 report regarding a possible sexual relationship between Davis and N.C., Howard's report spawned a second investigation into Davis. That investigation was conducted not by an outside entity, but by Detective Simpson from the Sherriff's Office, who was a subordinate of Davis's fiancé, Captain Carver. Simpson interviewed Zamora on November 30, 2016, and Zamora reported to Simpson not only what she had heard about a rumored sexual relationship between N.C. and Davis, but also what she had previously reported (in writing and verbally to Kingston) in the spring of 2016 about Davis's conduct with J.K. There is nothing in the record to suggest that Simpson was previously aware of Zamora's prior reports.
The Supreme Court has held that an employee can oppose discrimination
Zamora was terminated less than two months after her statement to Simpson, creating a much closer call on whether she would need additional evidence to support a causal connection between her protected opposition to conduct prohibited by Title IX and her termination. In any event, whether the relevant time period is two or eight months, Zamora contends that the evidence she offers to show pretext also establishes the causation element of her prima facie case, and "[t]he Court may consider evidence tending to establish the weakness of a proffered non-discriminatory reason not only in the pretext stage of a retaliation claim, but also in connection with establishing causation as part of a prima facie case."
If the plaintiff establishes a prima facie case of discrimination, "the . . . burden shifts to the defendant to articulate a facially nondiscriminatory reason for the challenged employment action."
A plaintiff may "demonstrate[] pretext by showing either that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence."
Evidence of pretext "may take a variety of forms," and a plaintiff "may not be forced to pursue any particular means of demonstrating that [a defendant's] stated reasons are pretextual."
To show that a defendant acted contrary to an unwritten policy or to company practice, a plaintiff often provides "evidence that [she] was treated differently from other similarly-situated employees who violated work rules of comparable seriousness."
However, "[m]ere allegations are insufficient,"
In support of her pretext argument, Zamora asserts that each of the reasons for her termination stated in Fewell's termination memorandum are either not credible or have been proven false through the testimony of UG representatives. Zamora also contends that the UG's rules and policies were applied differently to her than to other employees. Specifically, she contends that Davis violated UG rules and policy when she engaged in multiple acts of inappropriate physical contact with a juvenile, lied to investigators, and widely discussed the allegations involving a juvenile with individuals both inside and outside the JDC. Zamora argues that other members of the Sheriff's Office violated confidentiality by telling Carver of the allegations involving Davis, and that Carver violated confidentiality by speaking to Davis about those allegations before she was ever interviewed. Zamora argues that although Carver, Davis and their friends widely discussed the allegations involving a juvenile, none of them were disciplined or terminated for such conduct as Zamora was.
The Court agrees that Zamora has produced sufficient evidence to establish pretext. First, there is no dispute that Zamora did not submit a false written report during Simpson's investigation, which Fewell testified was one basis for her termination. Second, regarding the UG's contention that Zamora was dishonest during questioning, the record as a whole contains enough weaknesses and contradictions with regard to whether the UG honestly believed that Zamora lied during the second investigation of Davis to make summary judgment inappropriate.
The UG contends that Zamora lied when she told Anderson about Davis having sex with N.C. at Garcia's house, when she claimed she had previously tried to report incidents involving a different juvenile, and when she told Simpson what she had heard from N.C. concerning rumors circulating about him and Davis. The record is unclear, however, whether the information about Davis and N.C. having sex at Garcia's house originated with Zamora, Howard, N.C., or Garcia— Anderson told Simpson during the second investigation that he believed Zamora had obtained this information from Garcia. Further, during the first investigation of Davis, the UG concluded that Zamora truthfully reported the inappropriate physical contact between Davis and J.K., whereas the record contains evidence relating to N.C.'s propensity for untruthfulness. Yet during the second investigation, the UG credited N.C.'s version of events over Zamora's. Further, although the UG contends that Zamora and Howard's accounts were inconsistent, Simpson testified that Zamora was probably truthful when she stated that she told Howard that he was a mandated reporter and needed to report what N.C. had told him about Davis. The Court concludes that Zamora has presented sufficient evidence to permit a jury to infer that the UG's statement that she was fired for dishonesty was pretext.
As to the third stated reason for Zamora's termination, the parties disagree about whether she violated the JDC's Release of Information policy and K.S.A. § 56-507. Zamora contends that she did not violate confidentiality under either because she was on the receiving end of information from Howard and N.C. and because she did not disclose to anyone outside the Sheriff's Office. The UG correctly asserts that whether Zamora actually violated the statute is immaterial as long as Fewell and Ash legitimately believed she had. However, Zamora has presented evidence that the UG failed to discipline employees who violated rules of comparable seriousness which, in turn, calls into question whether the UG acted in good faith in firing Zamora.
There is no UG policy stating that an employee shall be terminated for violating § 65-507, and the UG has never terminated anyone for violating that statute other than Zamora and apparently Howard. The record is silent as to the UG's policy on termination of employment for violation of its Release of Information policy. When arguing that the UG acted contrary to an unwritten policy or practice by firing her but not similarly-situated employees who violated work rules of comparable seriousness, Zamora bears the burden of demonstrating that she is, in fact, "similarly situated to the employees to whom [she] is comparing [herself],"
Zamora contends that Gunja, Soptic, Carver, Anderson, Davis, and Garcia were not disciplined for discussing information about a juvenile in much the same manner Zamora did. The UG contends that these individuals are not similarly situated to Zamora and did not violate rules of similar seriousness. Citing to Simpson's opinion as stated in her deposition testimony, the UG contends that the JDC's Release of Information policy and K.S.A. § 56-507 do not apply to Sheriff's Office employees working outside the JDC. Specifically with respect to Soptic and Gunja, the UG contends that Zamora has not shown that they lacked the legal authority and discretion to share with Carver the allegations against his fiancée, and that Soptic implicitly authorized Carver to discuss the allegations with Davis.
This line of reasoning gives the Court some pause, given the undisputed fact that the JDC is a division of the Sheriff's Office within the UG. The UG seems to be arguing that Sheriff Ash, who has charge and custody of the JDC by law, and his Sheriff's Office employees who do not work inside the JDC, do not share the obligation keep information concerning juveniles confidential. On its face, § 56-507 is not so limited, stating that certain information pertaining to juvenile residents "shall be confidential and shall not be made public in a manner which would identify individuals."
The UG also contends that Zamora's violation of confidentiality was of a different, more serious nature because she improperly disclosed information she learned first-hand in the course of her duties at the JDC, whereas "the Sheriff's Office could have reasonably viewed the disclosure of `confidential' information that had been learned second-, third-, or fourth-hand and that was not acquired or disclosed in the performance of official duties as less serious than the disclosure of confidential information obtained on the job."
The Court is not convinced that Zamora has failed to show that the UG acted contrary to company practice by failing to discipline or terminate other employees who violated rules of comparable seriousness but, in any case, need not base its finding of sufficient evidence of pretext on the UG's failure to discipline others for violating confidentiality. For even if Zamora has failed to show that similarly situated employees violated confidentiality rules of comparable seriousness, Paden's report concerning Davis and Garcia raises the possibility that both officers violated both JDC policy and Kansas law by engaging in touching of a sexual nature with residents and bringing contraband into the facility for residents.
These allegations against Davis and Garcia are arguably much more serious than sharing confidential information with others under the umbrella of the Sheriff's Office, yet Paden's report was never even investigated—despite the fact that Kingston was at that time in the process of investigating similar conduct by Davis. While the UG highlights the fact that other employees, including Harrington and Olden, also reported on Davis but were not fired, these individuals reported on Davis in the context of the first investigation, which was conducted by an outside entity rather than Carver's direct subordinate in the Sheriff's Office. Zamora has established a genuine and material factual issue as to whether she was punished more harshly than similarly situated employees who violated rules of comparable seriousness, and a reasonable jury could therefore infer that the UG's claim that she was fired for violating confidentiality was pretext for unlawful retaliation.
Viewing the evidence as a whole and in the light most favorable to Zamora, the Court concludes that the facts of this case satisfy the third element of her prima case and give rise to an inference of pretext. The Tenth Circuit has explained that "`a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.'"
