KATHRYN H. VRATIL, District Judge.
John Turner brings suit against the Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government") for employment discrimination, harassment and retaliation based on race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)
The following facts are undisputed or, where disputed, viewed in the light most favorable to plaintiff.
Plaintiff is African-American. Since 1986, the Kansas City, Kansas Police Department ("KCKPD"), which is a department of the Unified Government, has employed him as a police officer.
In January of 2015, Chief of Police Terry Zeigler awarded plaintiff a primary position in a new unit called the Dignitary Protection Detail ("DPD"), which consisted of two primary and two secondary officers. DPD officers provided protection services for, and worked closely and attended events with elected officials, commissioners, community dignitaries and the mayor. A DPD assignment had a higher profile than a patrol assignment. From its inception, the DPD's existence was a political issue and at meetings between the mayor and a Unified Government commissioner, the commissioner questioned DPD finances.
Chief Zeigler awarded Officer Steve Rios the other primary DPD position and gave Officers Steve Kopp and Christopher Blake the secondary positions. Secondary officers were relief officers and only worked in the DPD about once a month. In the spring of 2015, Officer Kopp replaced Officer Rios as a primary DPD officer. In July of 2015, Officer Steve Williams, who is African-American, replaced Officer Kopp as a primary DPD officer and Officer Kopp left the unit. From July of 2015 to March of 2016, plaintiff and Officer Williams were the primary DPD officers. As of August 24, 2015, Officer Blake was the only secondary DPD officer. In other words, during the relevant period, both primary DPD officers were African-American (plaintiff and Officer Williams) and the secondary DPD officer (Officer Blake) was white.
According to Officer Williams, other officers made comments about the DPD such as "the mayor and his brothers are changing the inner city" and "the brothers [are] protecting the mayor." Affidavit Of Steve Williams, Exhibit 27,
Plaintiff and Officer Williams reported to Major Rodney Smith, who in turn reported to Chief Zeigler. In January of 2016, after defendant promoted Major Smith to deputy chief, plaintiff and Officer Williams reported to Major Michael York. Sergeants, captains and majors can issue discipline, but Chief Zeigler has ultimate disciplinary authority.
Plaintiff is an hourly employee. Initially, his scheduled hours were Monday through Friday from 8:00 a.m. to 4:00 p.m. In July of 2015, plaintiff's schedule changed to Monday through Friday from 11:00 a.m. to 7:15 p.m. Plaintiff's new schedule was "flex flex," which meant that the needs of the unit determined his hours. Before he arrived at city hall, plaintiff would sometimes conduct surveillance of the mayor's home and counted that time as scheduled work time.
DPD officers recorded time differently than officers in other units did. Chief Zeigler and Major Smith told DPD officers that they did not need to keep a daily activity log, sign in at the very beginning of shifts or submit a form before taking a day off. Accordingly, each day after arriving at city hall, instead of recording the exact hours that he worked, plaintiff would write his scheduled start time and end time on the daily sign-in sheet. He did not later correct the sign-in sheets to reflect actual hours worked, and he did not keep a personal notebook or log of time actually worked and what he did throughout the day. Chief Zeigler also told plaintiff that DPD officers would be working a lot of overtime, and that they should keep their overtime budget under a certain amount. With the budget in mind, plaintiff did not always record his overtime hours.
Plaintiff and his brother, Michael Simmons, own a private security company called Simmons Security. Simmons Security has 35 to 45 employees, most of whom are police officers who work for the company part time while off duty.
In December of 2015, the Unified Government commissioner who had questioned the finances of the DPD reported that an anonymous source had informed her that plaintiff, Officer Williams and Simmons were not working their scheduled hours for defendant and were working part time for Simmons Security while defendant was paying them. The anonymous source also informed the commissioner that plaintiff and Simmons were working for Simmons Security and receiving payment from a Unified Government contract. The parties refer to the commissioner's allegations as allegations of "double-dipping."
On December 2, 2015, Major Smith directed the Internal Affairs ("IA") unit to follow up on the double-dipping allegations. Internal Affairs Detective Pamela Waldeck, who is white, led the investigation into whether Officer Williams and plaintiff were double-dipping. The investigation was categorized as criminal special,
As part of the investigation, Detective Waldeck conducted surveillance and interviews. She interviewed Officer Kopp and asked him if he had talked to the commissioner about the double-dipping allegations. Officer Kopp told Detective Waldeck that the commissioner had asked him if his replacement was black. Detective Waldeck did not further investigate the commissioner's statements. Detective Waldeck did not interview the mayor or anyone in his office about plaintiff's time or work as a DPD officer.
On March 12, 2016, Chief Zeigler placed plaintiff on administrative leave pending the outcome of the double-dipping investigation. As set out in a letter to plaintiff from Chief Zeigler, the terms of plaintiff's administrative leave were as follows: "You are relieved of your duties as a law enforcement officer, with pay, until further notice. You are prohibit[ed] from working any off-duty employment, that requires your law enforcement powers or jurisdictional authority, until further notice by the Chief of Police or his designate."
In a memorandum to Major York (plaintiff's supervisor) dated April 13, 2016, Detective Waldeck summarized the results of her investigation up to that time. She found that "[d]uring the surveillance of Officer Turner, he worked 17 days, 2 half days, and submitted 23 hours of overtime. Of those days worked there were 21 hours that were not accounted for during his scheduled duty hours."
Deputy Chief Garner, who is African-American, reviewed the IA file and made findings, which he included in a memorandum to Chief Zeigler dated July 14, 2016. Deputy Chief Garner's memorandum stated that plaintiff's actions reflected dishonesty in the inaccurate notation of time worked and sustained the allegation that plaintiff was not working his scheduled hours. The investigative file, including Deputy Chief Garner's memorandum, was then forwarded to Chief Zeigler. After reviewing the file, Chief Zeigler agreed with Deputy Chief Garner's conclusion.
On August 4, 2016, Chief Zeigler issued plaintiff a letter of discipline dated August 2, 2016. In the letter, Chief Zeigler stated, "the investigation revealed dishonesty in the inaccurate notation of the actual time you worked," quoted statements from the DA and found that plaintiff had violated Rule 3.23, which prohibits dishonesty, and Rule 3.16, which prohibits making false reports.
The 30-day suspension and last chance provision is consistent with what Chief Zeigler imposed on Officers B.B. and B.M., who are white, for violating Rule 3.16 by falsely reporting how drugs were discovered and recovered in an arrest.
Chief Zeigler testified that he removed plaintiff from the DPD because he had committed major violations of the Rules and Regulations,
To challenge plaintiff's discipline, the union filed a grievance. On October 3, 2016, Chief Zeigler responded in a memorandum which stated that on August 23, 2016, he had met with plaintiff to discuss the discipline for violation of Rules 3.16 and 3.23 and that during the meeting, plaintiff stated that he believed dispatch tapes, text messages and emails would prove that he was working outside of his duty hours to fulfill the DPD's mission and that he did not record his overtime. Chief Zeigler indicated that IA had completed a follow-up investigation and found evidence that plaintiff did not work his entire shift on several occasions. Chief Zeigler therefore denied the grievance and stated, "I do believe there is substantial evidence in [this IA case file] to justify the violations and the discipline issued to him."
The union appealed Chief Zeigler's denial to a grievance board, which is the next step in the grievance procedure. In April of 2017, the grievance board held a hearing. At the conclusion of the hearing, the grievance board rescinded the original 30-day suspension and removed the Rule 3.23 violation (dishonesty). The grievance board determined that plaintiff had violated Rule 3.16 by making false reports, however, and recommended a 3-day suspension. Accordingly, on April 20, 2017, Chief Zeigler rescinded the discipline that he had issued on August 4, 2016 and imposed a 3-day suspension for violating Rule 3.16.
Effective August 18, 2016, defendant assigned plaintiff to West Patrol where he bid and obtained a regular position. Plaintiff did not request that Chief Zeigler reinstate him to the DPD and Chief Zeigler did not do so.
Sgt. J.A. was an officer in the community policing unit, which is a high-profile unit like the DPD. In August of 2018, IA conducted a secret investigation into whether Sgt. J.A., who is white, worked off-duty during his scheduled work hours.
After the investigation, Sgt. J.A. returned to his position in the community policing unit.
On May 17, 2016, defendant learned that in 2014 and earlier, three officers — including plaintiff — had sent sexually explicit text messages to a female detective who was married. Detective Waldeck investigated the incident, and plaintiff admitted his involvement. On August 4, 2016, Chief Zeigler issued a letter of discipline to plaintiff for violating Rule 2.27, which states that "[o]fficers shall not perform any acts or make any statements, which tend to bring the Department into disrepute or ridicule."
In June of 2016, a citizen complained that because he opposed a tax that supported security and cleaning services for downtown property owners, plaintiff had threatened to cease providing security services to him through Simmons Security. On August 3, 2016, plaintiff admitted that he was aware that the citizen had publicly expressed his opposition to the tax but stated that his threat to cease providing security services was based on several problems at the citizen's building. Plaintiff denied any connection between the citizen's opposition to the tax and his threat to stop providing security services to him. Deputy Chief York
As noted above, one of the conditions of plaintiff's five-month administrative leave was that he could not work in off-duty employment that required his "law enforcement powers or jurisdictional authority."
On August 3, 2016, plaintiff explained that he had understood the conditions of his administrative leave to prohibit him from working off duty in his uniform. He admitted that he had continued to operate Simmons Security during his leave but maintained that he was functioning in an administrative capacity,
During this investigation, plaintiff stated that he did not believe he had filed an updated off-duty employment form for 2016. Defendant requires officers to file an off-duty employment form by January 10 of each year. The officer is responsible for submitting the updated form and defendant does not check of see whether an officer has submitted the form unless the need arises. If for some reason defendant checks and finds that the off-duty form is not there, it is a violation of policy.
On September 13, 2016, Deputy Chief York reviewed the IA file and found that while plaintiff was on paid administrative leave, he was scheduling officers to work off duty for his security business and that plaintiff had agreed that this type of activity (scheduling, fielding phone calls from officers, etc.) could potentially fall within his authority as a police officer. Deputy Chief York also found that plaintiff had violated a general order by failing to timely submit an updated off-duty employment form. Based on the evidence, Deputy Chief York recommended to Deputy Chief Garner (who was at that time serving as Acting Chief) that he classify the case as "founded" and specified the general order and rules and regulations that he believed plaintiff had violated.
Deputy Chief Garner did not sustain the allegation that plaintiff had violated the terms of his administrative leave but did adopt the finding that plaintiff had violated a general order by failing to submit an updated off-duty employment form for 2016. Until plaintiff, no one had ever been disciplined for failing to submit an updated form. The standard discipline for such a violation is a one-day suspension, which Deputy Chief Garner imposed.
Accumulation of disciplinary action triggers an "Early Warning System." Specifically, an officer triggers the early warning system any time, within a 90-day period, that he or she has (1) three or more IA complaints that are classified as "Other Contacts" or (2) two or more IA complaints which result in an administrative or criminal investigation. The early warning system applies to officers who have had negative interactions with citizens or use-of-force complaints. Its purpose is to identify officers whose behavior is problematic and intervene to correct that behavior before it causes further harm and jeopardizes the officer's career. When complaints against an officer trigger the early warning system, IA reviews the officer's professional behavior to determine whether it requires intervention and notifies the officer's division commander, the bureau director and the chief of police. The division commander is responsible for meeting with the officer regarding remedial measures. The early warning system is not a form of discipline.
In July of 2016, plaintiff accumulated three IA complaints within 90 days. Major Solomon Young, who is African-American and is the division commander over West Patrol, met with plaintiff to discuss the early warning notification. During that meeting, plaintiff told Major Young that he thought defendant was targeting and harassing him because he is black. Major Young documented this complaint in a memorandum that he sent to Deputy Chief Smith.
In October of 2016, Captain Ronald Schumaker, Internal Affairs Commander, added plaintiff's name to the veracity list based on Chief Zeigler's determination in the double-dipping investigation that plaintiff had violated Rules 3.16 and 3.23. When Captain Schumaker added plaintiff to the list, he mistakenly listed plaintiff's three IA complaints (
Twice a year, in June and December, defendant conducts performance evaluations for law enforcement officers. Since he started with the KCKPD, except for June and December of 2015 and June of 2016, when he was in the DPD, plaintiff has received performance evaluations twice every year. As part of each performance review, an officer is asked to complete a "Productive Work Environment Advisory" that consists of two questions:
Plaintiff completed his first productive work advisory form in 1999. On that form and on each subsequent form, plaintiff checked "yes" in response to the first question, indicating that he was aware of the department's strong commitment to a productive workplace. From 1999 through 2014, plaintiff answered "no" to the second question, indicating that he had not personally been the victim of any such harassment, discrimination or coercion in the past year.
Deputy Chief Smith, who supervised the DPD in 2015, was responsible for completing plaintiff's performance evaluations in June and December of 2015. He did not complete performance evaluations for any officers in the unit. Before December of 2016, plaintiff did not bring that matter to the attention of Deputy Chief Smith or anyone else. Deputy Chief Smith did not realize that he had not completed a performance evaluation for plaintiff until plaintiff complained in December of 2016. His failure was an oversight. Deputy Chief Smith did not do anything to correct the oversight because by the time he realized it, he felt that it was too late to go back and do an evaluation and that it "would be compounding a foul-up."
On his performance evaluation for July 1 through December 31, 2016, which he completed on December 12, 2016, plaintiff checked "yes" to the second question on the Productive Work Environment Advisory. His explanation was as follows:
On December 14, 2016, Major Young met with plaintiff to discuss his affirmative response on the productive work environment advisory. On December 19, Major Young prepared a memorandum to Deputy Chief Smith which recounted the concerns that plaintiff had expressed in their meeting. In relevant part, Major Young's memorandum stated as follows: (1) plaintiff's affirmative answer to question #2 was in regard to the IA investigation regarding time recording and accountability issues while he was in the DPD; (2) for the past year, while plaintiff was assigned to West Patrol, he did not have any complaints or issues with his peers, supervisors or West Patrol commanders; (3) the DPD was under scrutiny because a commissioner's friend did not like the program and did not like the mayor; and (4) plaintiff felt that the complaint regarding his time in the DPD was the result of a political feud and that defendant should reinvestigate the facts, complaining persons and the discipline that he received.
In January of 2017, defendant awarded plaintiff the report desk position at police headquarters. Sgt. Shenee Davis, who is bi-racial (African-American and white), supervised him. Plaintiff asserts that because of race or in retaliation for complaining about discrimination, defendant repeatedly disciplined him and monitored his activities. On February 23, 2017, for example, Sgt. Davis told him that someone had complained to a major that a citizen had gone up to the detective bureau without an escort. Plaintiff explained that the citizen was a city employee. Sgt. Davis discussed the complaint with the major and told plaintiff that he should not allow anyone to go beyond the lobby without an escort. Plaintiff asked for the direction in writing, so Sgt. Davis sent him an email. Defendant did not discipline plaintiff, but he believed that Sgt. Davis was constantly monitoring his activities in retaliation for his complaints of discrimination.
On March 8, 2017, plaintiff took a bathroom break and Deputy Chief Garner, who was looking for him, asked over the radio which bathroom plaintiff was using. Plaintiff was humiliated, and he believes that the question was retaliatory.
On May 19, 2017, plaintiff took his 30-minute lunch break and left a citizen waiting for him to take a report. Plaintiff told the citizen that he would assist him when he returned from lunch and had time to take his report. Defendant did not require plaintiff to inform Sgt. Davis when he left for lunch, so he left for lunch without informing Sgt. Davis that he was going to take a lunch break or that someone was waiting.
When plaintiff returned from lunch, Sgt. Davis told him to follow her out of the lobby and escorted him to her office. In plaintiff's opinion, her manner was improper, disrespectful and hostile. Sgt. Davis alerted him that a citizen had complained and that she might impose discipline. Plaintiff verbally complained to East Patrol Captain Steve Owen, the day shift commander, and orally and in writing to West Patrol Captain George Sims. Specifically, plaintiff stated, "Sgt. Davis intentionally exhibited a formal display of discipline towards [him] publicly in front of Record Services personnel, that possibly initiated or was a part of, the false complaint made against [him]."
On May 25, 2017, Sgt. Davis issued plaintiff a letter of discipline for violating Rule 2.14 by failing to provide prompt, correct and courteous service to the citizen on May 19. The letter stated the reason for the discipline as follows: "On 05/19/2017 you failed to provide prompt courteous service to our citizens by taking your lunch break in lieu of completing a report. The citizen had been waiting for a report for approximately forty (40) minutes and you failed to make other arrangements for the report to be taken prior to leaving for lunch."
On July 13, 2017, Captain Owen issued a memorandum entitled "Report Desk Duties and Responsibilities" which required plaintiff to use a specific restroom in the lobby. Major Kent Anderson, division commander over East Patrol, directed Captain Owen to prepare the memorandum so that officers knew their duties at the report desk, and he required report desk officer to use the lobby restroom because it is closest to the report desk. Captain Owen thought that this would cut down on wait time for citizens. To plaintiff, the requirement that he use the restroom closest to the lobby was retaliatory because no other officer has such a restriction.
On June 8, 2017, plaintiff received his performance evaluation for January 1 through June 1, 2017. On the second question of the Productive Work Environment Advisory, plaintiff again checked the "yes" box. The next day, he submitted a two-page explanation, which listed everything which he believed was discriminatory or retaliatory up to that point, including most of the employment actions taken before June of 2017 that are the subjects of this lawsuit.
Major Anderson met with plaintiff to discuss his concerns and prepared a memorandum to Chief Zeigler dated June 13, 2017, which summarized plaintiff's complaints. Major Anderson understood that plaintiff was complaining about a hostile work environment and retaliation. Chief Zeigler reviewed Major Anderson's memorandum and had Deputy Chief York respond to plaintiff's allegations. Defendant did not investigate plaintiff's allegations.
In October and November of 2017, Captain Owen investigated two complaints in which citizens accused plaintiff of not taking reports. One citizen had waited for over two hours before plaintiff served her. When plaintiff met with her a few minutes before closing, he told her that she would need to bring in additional paperwork and that he would call her the next day. Captain Owen recommended that both complaints be classified as "No Discipline Warranted," but advised plaintiff that if someone was waiting for a report for longer than an hour, he should call for additional help.
From September through December of 2017, command staff and co-workers constantly monitored plaintiff, which made him feel uncomfortable.
On January 31, 2018, Captain Schumaker made a mistake in his veracity list disclosure letter to plaintiff when he accidentally said that he had an obligation to notify prosecutors about a finding that plaintiff had violated Rule 3.23. This was incorrect because after the grievance board hearing, Chief Zeigler had rescinded plaintiff's Rule 3.23 violation and only plaintiff's Rule 3.16 violation remained. Captain Schumaker testified that the disclosure letter should have said Rule 3.16.
On March 1, 2018, when plaintiff was on his way to lunch, he saw an incapacitated man in front of the building next door to police headquarters. Plaintiff stopped and called dispatch. When the patrol officer responded, she told plaintiff that she would handle it and plaintiff went to lunch down the street. Shortly after that, the patrol officer called for backup. Before plaintiff could respond, another officer arrived to assist.
The patrol officer complained that plaintiff had left her unattended with a man who needed assistance. On March 8, 2018, Sgt. Lucas Graves issued plaintiff a letter of discipline for violating Rule 3.22, which states, "Officers shall always maintain competence in the performance of their duties."
On March 22, 2018, the union grieved this discipline and defendant amended it to a violation of Rule 2.14 (failure to provide prompt, correct and courteous service), which reduced his two-day suspension to 15 points. Plaintiff asserts that as the report desk officer, responding to people on the street is not his job, and that this discipline was retaliatory.
Plaintiff claims that defendant treats white officers more favorably than black officers. Specifically, plaintiff asserts as follows:
On May 22, 2017, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") which alleged that defendant has subjected him to discrimination, retaliation and harassment because of racial animus. Among other things, he noted the DPD investigation, the off-duty employment form suspension, the veracity list, disparate treatment of black officers, his performance evaluations and the report desk incidents.
On April 25, 2018, plaintiff filed his complaint for employment discrimination, harassment and retaliation based on race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact.
The Court views the record in the light most favorable to the nonmoving party.
Under Title VII, plaintiff asserts three race-based claims: (1) disparate treatment; (2) hostile work environment; and (3) retaliation.
Defendant asserts that to the extent plaintiff's claims are based on events that occurred more than 300 days before May 22, 2017, the date plaintiff filed his EEOC charge, they are time-barred.
Under Title VII, plaintiff must base his claims for disparate treatment and retaliatory adverse employment action on discrete acts.
Here, plaintiff filed his EEOC charge on May 22, 2017. As a matter of law, any claim of disparate treatment race discrimination or retaliatory adverse employment action that is based on an event which occurred prior to July 26, 2016 (
Plaintiff may only use these prior events as background evidence in support of timely claims.
As with claims for disparate treatment and retaliation, in Kansas, plaintiff must file a hostile work environment claim under Title VII within 300 days of the unlawful employment practice. But unlike disparate treatment and retaliation, a hostile work environment claim is composed of a series of separate acts that collectively constitute one "unlawful employment practice." 42 U.S.C. § 2000e-5(e)(1). To determine liability, if an act that contributes to the claim occurs within the filing period, the Court may consider the entire time period of the hostile environment.
Here, plaintiff alleges that defendant began harassing him because of race in December of 2015, with the IA investigation into double-dipping, and that a pattern of harassment continued through at least April of 2017.
Count I asserts that defendant discriminated against plaintiff because of race in violation of Title VII.
The burden-shifting framework set forth in
On August 4, 2016, in conjunction with Deputy Chief Garner's conclusions regarding the allegations of double-dipping, Chief Zeigler suspended plaintiff without pay for 30 days, removed him from the DPD and prohibited him from re-bidding into the DPD for 25 months for violations of Rule 3.16 (false reports) and Rule 3.23 (dishonesty). In April of 2017, the grievance board held a hearing on plaintiff's suspension and removal. It reduced plaintiff's suspension to three days and overturned the determination that he had violated Rule 3.23 but upheld the determination that he had violated Rule 3.16. Plaintiff did not ask for reinstatement, and Chief Zeigler did not reinstate him. Plaintiff asserts that this discipline and the failure to reinstate him constituted race discrimination. Defendant's motion for summary judgment assumes that plaintiff has set forth a prima facie case of disparate treatment but asserts that Chief Zeigler had legitimate and nondiscriminatory reasons for the discipline in that plaintiff had violated Rules 3.16 and 3.23, and failure to reinstate him in that the grievance board determined that plaintiff had violated Rule 3.16. Defendant also asserts that Chief Zeigler concluded that plaintiff could not remain in the DPD because it was a politically sensitive unit that had close contact with elected officials and plaintiff committed the Rule 3.16 violation in performance of his DPD duties. Finally, defendant states that in 2015, Chief Zeigler suspended two white officers for falsifying police reports in violation of Rule 3.16.
Because defendant has stated legitimate and nondiscriminatory reasons for its actions, plaintiff must show that defendant's stated reasons are pretext for race discrimination.
Plaintiff shows "pretext by demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons."
Under this approach, plaintiff establishes pretext by demonstrating that defendant treated him differently from comparable employees.
Disparate treatment does not create an inference of discrimination if defendant's differential treatment of similarly-situated employees is trivial or accidental or explained by a nondiscriminatory motive.
In this respect, plaintiff offers two arguments to show pretext. First, he asserts that defendant's failure to investigate double-dipping by white DPD officers demonstrates pretext. Second, plaintiff generally asserts that defendant has treated white officers more favorably and reinstated those officers even after it disciplined them.
During the relevant period, Officer Blake was the only white officer in the DPD. Detective Waldeck testified that she only investigated plaintiff and Officer Williams because the commissioner had only accused them (and not others) of double-dipping.
As to his second argument, plaintiff asserts generally that "[b]lack officers have been treated differently than white officers accused of `double dipping.'"
Plaintiff's arguments regarding Chief Zeigler and Detective Waldeck do not create a genuine issue of material fact as to pretext. Chief Zeigler, as Chief of Police, is not a valid comparator. A valid comparator must be subject to the same performance and disciplinary standards as plaintiff.
Other than Detective Waldeck and Chief Zeigler, plaintiff does not specifically argue that identified white officers engaged in similar misconduct but received more favorable treatment. The record contains evidence, however, that defendant accused Sgt. J.A., who is white, of double dipping, but did not place him on administrative leave or remove him from his position. For purposes of summary judgment, Sgt. J.A. is a valid comparator because he committed rules violations of comparable seriousness to plaintiff's violations.
Defendant is not entitled to summary judgment on this claim.
On September 28, 2016, Deputy Chief Garner, who is African-American, imposed a one-day suspension on plaintiff for not submitting a mandatory off-duty employment form for 2016. Plaintiff asserts that this one-day suspension constituted race discrimination. Assuming that plaintiff has set forth a prima facie case, defendant asserts that as a matter of law, it had a legitimate and nondiscriminatory reason for the suspension,
Defendant has never enforced the off-duty employment form rule against any officer other than plaintiff, and plaintiff asserts that this shows pretext. That defendant had never enforced rule until it enforced the rule against plaintiff creates a genuine issue of material fact as to pretext.
Plaintiff asserts that defendant placed him on the veracity list because of his race. Defendant asserts that it is entitled to summary judgment on this claim because (1) plaintiff did not mention the veracity list in his EEOC charge and therefore failed to exhaust administrative remedies, (2) defendant placed him on the veracity list in 2016 for legitimate and nondiscriminatory reasons and (3) as to plaintiff's inclusion on the list in 2017 and 2018, defendant did not take adverse action against him.
As an initial matter, defendant's assertion that plaintiff did not mention his inclusion on the veracity list in his EEOC charge is misplaced. Plaintiff mentioned the veracity list two times. Accordingly, defendant's claim that plaintiff failed to exhaust administrative remedies on this ground is baseless.
Defendant asserts that Chief Zeigler included plaintiff on the veracity list in 2016 because he had disciplined plaintiff for violating Rule 3.16 (making false reports) and Rule 3.23 (dishonesty). If true, this is a legitimate nondiscriminatory reason, and plaintiff must show that it is pretextual.
As evidence of pretext, plaintiff asserts that defendant has not placed white officers on the veracity list who have committed comparable violations. As noted above, Sgt. J.A. is plaintiff's only valid comparator. Plaintiff cannot show pretext based on differential treatment of Sgt. J.A., however, because defendant did place Sgt. J.A. on the veracity list. Accordingly, the record reflects that defendant placed a similarly situated white officer who committed similar misconduct on the veracity list. Plaintiff has not demonstrated a genuine issue of material fact whether Chief Zeigler placed him on the veracity list in 2016 as pretext for race discrimination. Defendant is entitled to summary judgment on this claim.
As to the veracity lists for 2017 and 2018, defendant asserts that Captain Schumaker made a mistake when he listed plaintiff for the sexting and off-duty employment form incidents and stated in plaintiff's veracity list disclosure letter that plaintiff had violated Rule 3.23 instead of Rule 3.16. Plaintiff does not dispute that Captain Schumaker made a mistake and does not offer any evidence from which a reasonable jury could conclude that Captain Schumaker's real motive was racial animus.
In December of 2016, plaintiff complained internally about race discrimination and harassment. On May 22, 2017, he filed a charge with the EEOC. On June 9, 2017, plaintiff again complained internally about discrimination and harassment. Plaintiff asserts that in retaliation for his internal complaints and EEOC charge, defendant scrutinized his work more closely, threatened him with disciplinary action, reviewed his work unfavorably, refused to reinstate him to the DPD, placed him on the veracity list and unfairly disciplined him. Defendant asserts that it is entitled to summary judgment on plaintiff's claims that the following acts were retaliatory: (1) failure to reinstate plaintiff to the DPD after the grievance board hearing in April of 2017; (2) placing plaintiff on the veracity list; (3) interactions with Sgt. Davis and Deputy Chief Garner at the report desk; (4) discipline imposed by Sgt. Davis in May of 2017; and (5) Captain Owen's directive on report desk duties in July of 2017 and the discipline imposed by Sgt. Graves and Captain Sims in 2018. Defendant asserts that it is entitled to summary judgment because (1) for most of his retaliation claims, plaintiff did not exhaust administrative remedies; (2) plaintiff cannot establish a prima facie case; or (3) defendant acted for legitimate and non-retaliatory reasons.
Under the burden-shifting framework of
Plaintiff asserts that defendant retaliated against him by not reinstating him to the DPD unit. Defendant asserts that it is entitled to summary judgment on this claim because plaintiff cannot show a causal connection between his internal complaint in December of 2016 and Chief Zeigler's decision to not reinstate plaintiff to the DPD after the grievance board hearing in April of 2017. Defendant also asserts that Chief Zeigler had legitimate and non-discriminatory reasons for removing plaintiff from the DPD.
To establish a sufficient causal connection, plaintiff must show that a desire to retaliate against his protected activity motivated defendant to commit the challenged conduct.
As a matter of law, the four months between plaintiff's internal complaint in December of 2016 and Chief Zeigler's decision to not reinstate plaintiff to the DPD after the grievance board hearing in April of 2017 is insufficient to establish causation.
To do so, plaintiff argues that he has shown retaliatory motive based on the harsh treatment of black officers compared to white officers. He does not specify, however, the harsh treatment to which he refers and does not explain how it connects his protected activity with Chief Zeigler's decision not to reinstate him. Plaintiff then asserts, somewhat confusingly, that "[t]he Chief had no intention of returning [plaintiff] to the DPD unit. His intent never changed after Plaintiff filed his Charge of Discrimination making this retaliation claim."
As noted, in October of 2016, Chief Zeigler placed plaintiff on the veracity list. Defendant asserts that it is entitled to summary judgment on plaintiff's claim that Chief Zeigler acted in retaliation for his protected opposition to discrimination because (1) plaintiff did not include this claim in his EEOC charge, (2) he cannot show causation and (3) defendant placed him on the veracity list for legitimate and non-discriminatory reasons.
Defendant's argument that plaintiff did not include this claim in his EEOC charge fails. The scope of the administrative investigation that can reasonably be expected to follow plaintiff's EEOC charge limits his claim in court.
As to causation, defendant asserts that plaintiff cannot establish a causal connection because he complained about discrimination in December of 2016,
In February of 2017, Sgt. Davis issued a directive to plaintiff that he should not allow visitors beyond the lobby without an escort.
In March of 2017, Deputy Chief Garner inquired as to plaintiff's whereabouts. When other officers informed him that plaintiff was on a restroom break, Deputy Chief Garner asked which restroom he was in. Plaintiff asserts that Deputy Chief Garner's question was "retaliatory harassment." Statement of Fact #487,
Defendant asserts that it is entitled to summary judgment on plaintiff's claims that Sgt. Davis's directive and Deputy Chief Garner's inquiry was retaliatory discipline. Plaintiff does not respond to defendant's argument and therefore fails to establish a prima facie case that Sgt. Davis and Deputy Chief Garner's directive and inquiry was retaliation for protected conduct. Defendant is entitled to summary judgment on this claim.
On May 19, 2017, plaintiff went to lunch while a citizen waited for him to do a report and the citizen complained. When he returned from lunch, Sgt. Davis "yelled in a loud voice," "Officer Turner, come with me." Statement of Fact #491,
Title VII's anti-retaliation provision does not protect an individual from all retaliation, but only from retaliation that produces an injury or harm,
Here, imposition of points that add up to more severe discipline would dissuade a reasonable employee from complaining about discrimination and therefore qualifies as adverse action. Plaintiff has satisfied this element of a prima facie case.
As to causation, plaintiff asserts that the timing of Sgt. Davis's disciplinary action against plaintiff satisfies this element. Plaintiff may demonstrate causation "by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action."
Defendant asserts that Sgt. Davis imposed the discipline because she determined that plaintiff went to lunch while a citizen was waiting, and the citizen had complained — a legitimate and nonretaliatory reason for her action.
As to pretext, plaintiff has not presented any evidence that Sgt. Davis disciplined him in retaliation for his protected opposition to discrimination. Plaintiff does not deny that he went to lunch and left the citizen waiting, and testified that he does not believe that Sgt. Davis, who is bi-racial, harbors racial animus against him. No reasonable jury could conclude that Sgt. Davis disciplined plaintiff in retaliation for his protected activity. Defendant is entitled to summary judgment on this claim.
On July 13, 2017, Captain Owen gave plaintiff a directive regarding report desk duties. Plaintiff was the only report desk officer, and the directive required him to use the restroom in the lobby. Plaintiff asserts that this directive was part of the "constant monitoring and harassment" he was experiencing, and that the restroom requirement was retaliatory harassment. Statement of Fact #515,
In March of 2018, a patrol officer complained that plaintiff had left her unattended with a man who needed assistance. Sgt. Graves issued plaintiff a letter of discipline for the incident, which Captain Sims later modified. Plaintiff asserts that as the report desk officer, responding to people on the street is not his job, and that this discipline was retaliatory.
For both the directive in July of 2017 and the discipline in March of 2018, defendant asserts that it is entitled to summary judgment because plaintiff failed to exhaust administrative remedies and cannot establish a prima facie case, and defendant acted for legitimate and nonretaliatory reasons.
Under Title VII, plaintiff must base his retaliation claim on discrete adverse actions.
Plaint asserts that defendant subjected him to a racially hostile work environment. Defendant asserts that it is entitled to summary judgment on this claim because plaintiff has not offered any evidence to support this claim.
To establish a prima facie case of hostile work environment harassment, plaintiff must demonstrate that based on the totality of the circumstances, (1) the harassment was pervasive or severe enough to alter the terms, conditions or privilege of employment, and (2) the harassment was racial or stemmed from racial animus.
Plaintiff asserts that defendant subjected him to a "daily barrage of unfair treatment by supervisors and co-workers."
Plaintiff fails to establish a prima facie case of hostile work environment. He does not present evidence of a "steady barrage of opprobrious racial comments" or explain how any of actions listed above "stemmed from racial animus."
Plaintiff has established a genuine issue of material fact as to the following claims (1) whether defendant did not reinstate him to the DPD because of race; and (2) whether defendant suspended him for failing to submit an updated off-duty employment because of race.
Plaintiff further asserts that defendant investigated him for conduct that was three years old (
In short, the record does not suggest that Detective Waldeck's one inappropriate email was a violation of comparable seriousness to plaintiff's violations.
In summary, plaintiff has not shown that the foregoing white officers were similarly situated to him in all material respects and violated work rules of comparable seriousness. Moreover, none of them worked in politically sensitive units comparable to the DPD.
