JULIE A. ROBINSON, District Judge.
Plaintiff Michael Hudson brings this lawsuit against the Leavenworth County Sheriff's Office (LCSO), asserting claims of discriminatory termination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981; hostile work environment under Section 1981; and retaliation pursuant to Title VII and Section 1981. This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. 48). The motion is fully briefed and the Court is prepared to rule. For the reasons stated in detail below, the Court grants in part and denies in part Defendant's motion for summary judgment.
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 issue 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 issue of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
The parties have objected to the admissibility of certain evidence submitted in support of and in opposition to summary judgment. The Court first addresses these objections. Plaintiff objects to the affidavit of Major Jeff Dedeke, which states that Major Dedeke used metadata from photographs taken on February 27, 2013 in the investigation of Plaintiff.
Defendant objects to Plaintiff's Exhibit M,
Additionally, Defendant objects to Plaintiff's Exhibit N,
Plaintiff is an African-American man who resides in Wyandotte County, Kansas. Plaintiff began his employment with the Leavenworth County Sheriff's Office as a detention officer in February 2006, and was promoted to patrol deputy in October 2008. David Zoellner was Sheriff of Leavenworth County from the time Plaintiff began his employment until 2013. In 2013, Andrew Dedeke took office as Sheriff of Leavenworth County. From the time he was promoted to deputy until his termination, Plaintiff's supervisors included Sergeant Ed Cummings and Lieutenant Mark Metcalf.
In 2009, Plaintiff spoke with Sergeant Cummings about Plaintiff potentially moving to a house in Leavenworth County. Sergeant Cummings repeatedly commented to Plaintiff, "why don't you move in that house up the street from me so when them boys start burning crosses in your yard I can come and help."
In August 2012, Sergeant Cummings conducted a performance review of Plaintiff for the previous year. Sergeant Cummings rated Plaintiff as "meets expectations," and stated that Plaintiff completed "most" of his reports on time. Sergeant Cummings explained to Plaintiff that he did not give out "exceeds expectations" ratings. Plaintiff had previously received "exceeds expectations" ratings and always completed his reports on time. Thus, Plaintiff believed Sergeant Cummings had given him a bad evaluation. Sergeant Cummings also stood behind Plaintiff at the gun range, and Plaintiff believed these actions were in retaliation for reporting Sergeant Cummings' 2009 comments.
In 2011, Plaintiff complained to another African-American employee, Officer William Francis, about the display of a confederate flag license plate on an employee's car in the LCSO parking lot. Plaintiff and Officer Francis found the display of the license plate offensive. Officer Francis in turn spoke with his supervisor about the incident, who then spoke to the employee who displayed the license plate. The employee stated that she was proud to display the license plate, but agreed to remove the plate. After learning of the incident, Sheriff Zoellner requested that Lieutenant Metcalf issue a written reprimand to Plaintiff for going outside of his chain of command and causing a potential violation of the employee's First Amendment rights. Plaintiff signed the reprimand and it was placed in his personnel file.
Deputy Bob Smith frequently quoted a sequence of movie lines from the movie Full Metal Jacket to Plaintiff when the two engaged in conversation. The sequence contained the term "Alabama blacksnake," a derogatory term used to refer to African-American male genitalia.
Defendant has a written policy concerning the off-duty use of patrol vehicles. This written policy provides guidelines concerning the storage of patrol vehicles when officers are off-duty, but does not state that out-of-county deputies cannot take their patrol vehicles home with them.
On February 14, 2013, Plaintiff and Deputy Clair, another out-of-county deputy, met with Lieutenant Metcalf to discuss the issues in Plaintiff's email. At the meeting, Plaintiff discussed his requested change in the car policy and also mentioned continued harassment by Sergeant Cummings based on Plaintiff's reporting of the 2009 cross burning statements. After this meeting, Plaintiff requested a meeting with Sheriff Dedeke on February 14, 2013, to discuss the same issues. In attendance at this meeting were Plaintiff, Deputy Clair, Sheriff Andrew Dedeke, Major Sherley, Major Jeff Dedeke, and Lieutenant Metcalf. At the meeting, Sheriff Dedeke stated that he agreed with the previous Sheriff on the unwritten car policy, and that he would not change the policy because of budgetary reasons. After the meeting, Sheriff Dedeke wrote Plaintiff a letter summarizing the meeting and placed the letter in Plaintiff's personnel file.
Plaintiff called in sick on February 15 and 16, his next two scheduled shifts following his meeting with Sheriff Dedeke. Lieutenant Metcalf called Plaintiff on February 16 and asked if he was truly sick. Lieutenant Metcalf explained that he was concerned that Plaintiff had called in sick because he was mad about Sheriff Dedeke's decision on the car policy rather than being sick. Lieutenant Metcalf could not recall whether he had ever called other employees when they called in sick. On February 21, Plaintiff called in to work and stated that he might not be able to come in to work that day because of a snow storm. Lieutenant Metcalf told Plaintiff to drive to the county line and someone would pick him up. Plaintiff agreed, and reported to work that day.
On February 27, 2013, at 7:27 a.m., Sergeant Thorne sent Plaintiff a text message requesting that Plaintiff cover Sergeant Thorne's shift later that afternoon. Plaintiff's own shift was scheduled to start at 3:00 p.m. that day. Plaintiff responded to Sergeant Thorne that he was unsure that he could make it out of his neighborhood because of another recent snowstorm in the area. Plaintiff then called Sergeant Cummings at approximately 9:30 a.m. and stated that he might not make it in to work that day because his road had not yet been plowed.
At approximately 11:30 a.m., Plaintiff's wife sent an email to the Wyandotte County Unified Government stating that Plaintiff's street had not been plowed, and she received a response that their road would be cleared later in the day. After receiving this email, Plaintiff called Sergeant Cummings at approximately 11:31 a.m. and stated that he was going to use a personal day to dig himself out of the snow. Sergeant Cummings then notified Lieutenant Metcalf that Plaintiff was taking a personal day.
At approximately 3:21 p.m., while Plaintiff was inside his home taking a break from removing snow from his driveway, Plaintiff noticed an unmarked patrol car drive down his street. Plaintiff called Lieutenant Metcalf and left a message regarding the unmarked patrol car checking on him. Lieutenant Metcalf called Plaintiff back and confirmed that he had driven past Plaintiff's home. Plaintiff asked why Lieutenant Metcalf had driven past his home, and Lieutenant Metcalf responded that Plaintiff's road was clear. Plaintiff responded that his road was not clear when he called off at 11:30 a.m. Lieutenant Metcalf stated that he would not debate the issue with Plaintiff, and disconnected the call.
Either Lieutenant Metcalf or Major Sherley then informed Sheriff Dedeke that Plaintiff had called off work, that Lieutenant Metcalf had driven by Plaintiff's home prior to Plaintiff calling off at 11:30 a.m., and that Lieutenant Metcalf had seen that Plaintiff's roads were clear. Sheriff Dedeke then ordered a Professional Standards Investigation (PSI) to determine whether Plaintiff had lied on February 27 to avoid coming to work. Major Jeff Dedeke conducted the PSI and issued a letter to Plaintiff informing him of the investigation. As part of the PSI, Major Dedeke interviewed Plaintiff and Lieutenant Metcalf and collected evidence. Major Dedeke asked for Plaintiff's version of events and had Plaintiff complete a handwritten statement while in Major Dedeke's office. Plaintiff explained that he had called off at 11:31 a.m. because his street had not yet been plowed.
Lieutenant Metcalf provided digital photographs to Major Dedeke that Lieutenant Metcalf represented as showing Plaintiff's street as clear at 10:30 a.m. on February 27. Major Dedeke did not obtain the SIM card from Lieutenant Metcalf's phone that contained the photos. However, Major Dedeke received the photos with the metadata (date and time) for the photos in an email from Lieutenant Metcalf. Major Dedeke printed the photographs alone and as a screenshot depicting the metadata of the photographs.
Plaintiff provided Major Dedeke with a stack of photographs in support of his version of events. The stack of photographs was divided into four bundles, each having a date and a brief description written on the back of the top photograph in each of the four bundles. Plaintiff represented to Major Dedeke the time frame each photograph depicted.
Major Dedeke concluded from the evidence that Plaintiff had lied to avoid duty, and recommended Plaintiff's termination to Sheriff Dedeke. Sheriff Dedeke, after consulting with his command staff, made the decision to terminate Plaintiff. Sheriff Dedeke believed that Plaintiff's alleged lie would be discoverable in subsequent criminal cases, and that he would therefore not be useful as a witness. Sheriff Dedeke had terminated Jonathan Walker, a Caucasian officer, for lying to avoid duty on the same day.
On March 11, 2013, Plaintiff was summoned to a meeting with Sheriff Dedeke, Major Dedeke, Major Sherley, and Lieutenant Metcalf. Sheriff Dedeke told Plaintiff that the investigation was over and that he had someone on Plaintiff's street around 10:30 a.m. on February 27. Sheriff Dedeke ordered Plaintiff to choose whether to resign or be terminated, and Plaintiff chose to resign.
Plaintiff brings claims of discriminatory termination, hostile work environment, and retaliation. For the reasons stated more fully below, the Court grants Defendant's motion for summary judgment as to the discriminatory termination and retaliation claims, and denies Defendant's motion as to the hostile work environment claim.
Plaintiff claims that Defendant engaged in race discrimination in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 when Defendant terminated Plaintiff's employment. Title VII makes it unlawful "to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin."
The elements of a plaintiff's discriminatory termination claim are the same regardless whether the claim is brought under Title VII or Section 1981.
Plaintiff argues that he has established a prima facie case of discrimination and that there are genuine issues of material fact regarding whether Defendant's stated reasons for Plaintiff's termination were pretextual. Defendant counters that Plaintiff has failed to establish a prima facie case, that Defendant's stated reasons for termination were legitimate and nondiscriminatory, and that the evidence Plaintiff offers does not create a genuine dispute of fact that Defendant's stated reasons for termination were pretextual. The Court addresses each argument in turn.
To establish a prima facie case of race discrimination, a plaintiff must show that (1) the plaintiff belongs to a protected class; (2) the plaintiff suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination.
Here, Plaintiff has met his prima facie burden by showing that he is a member of a protected class who was terminated under circumstances giving rise to an inference of discrimination. Plaintiff has alleged that he was treated differently than similarly situated non-protected employees, that there are weaknesses in Defendant's non-discriminatory reasons for termination, and that decision makers involved in his termination harbored racial animus. These circumstances surrounding Plaintiff's termination give rise to an inference of discrimination.
Defendant argues that Plaintiff has failed to meet his prima facie case because he has not shown that he was qualified to perform his job at the time of his termination because he lied to avoid duty.
Once the plaintiff has established a prima facie case, the burden shifts to the defendant "to articulate through some proof a facially nondiscriminatory reason for termination."
Under the McDonnell Douglas framework, a plaintiff can demonstrate pretext by showing "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them unworthy of credence."
Plaintiff contends that Defendant's treatment of similarly situated Caucasian employees who lied and were not terminated establishes pretext. Similarly situated employees are "those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline."
Plaintiff alleges that Caucasian employees were not terminated for lying about making racist statements. Defendant counters that these employees worked in the county jail, under different supervisors than Plaintiff, and Plaintiff does not dispute this. Thus, the Court finds these employees were not similarly situated to Plaintiff. Plaintiff also alleges that Deputy Clair, a Caucasian employee, was not called at home when he called in sick, unlike Plaintiff. Defendant, however, alleges that it terminated Jonathan Walker, a Caucasian employee who also called off due to a snow day in February 2013, for lying to avoid duty. Plaintiff does not dispute this. The similarity in treatment by Defendant of a non-protected employee discharged in the same month, for the same offense, and under similar circumstances as Plaintiff undermines Plaintiff's argument that he was treated differently when he was terminated. Therefore, the Court cannot find that a genuine dispute of fact exists as to whether Plaintiff was treated less favorably than nonprotected employees who lied.
Plaintiff also argues that weaknesses in Defendant's non-discriminatory reasons for termination suggest that the termination was pretextual. In determining whether weaknesses or contradictions in a defendant's stated reasons for termination establish pretext, courts "examine the facts as they appear to the person making the decision, not the plaintiff's subjective evaluation of the decision."
Plaintiff has not created a genuine dispute of fact concerning whether Defendant honestly believed its stated reason for termination. Before making his decision to terminate Plaintiff, Sheriff Dedeke ordered the PSI into Plaintiff. During the PSI, Major Dedeke asked Plaintiff to provide his version of events, and Major Dedeke reviewed photographs that Plaintiff submitted. Major Dedeke also had access during the PSI to photographs allegedly depicting Plaintiff's street as clear on the morning of February 27. This independent investigation and the photographs Major Dedeke relied on demonstrate that Sheriff Dedeke had a good faith basis for making his termination decision.
Plaintiff has presented evidence that Major Dedeke is a "computer guy" who can manipulate electronic data and that Major Dedeke received only digital copies of the photographs, rather than the SIM card from Lieutenant Metcalf's phone containing the photographs. This evidence, Plaintiff argues, gives rise to an inference that Major Dedeke or Lieutenant Metcalf manipulated the metadata associated with the photographs to alter the time of day that the photographs depict. Viewed in the light most favorable to Plaintiff, this evidence demonstrates that Defendant had the capability to fabricate or alter documentation related to the investigation. It does not, however, create a genuine factual dispute as to whether Defendant in fact fabricated or altered the documentation. Additionally, Plaintiff points to the email that his wife received from Wyandotte County in response to her concern that her street had not been plowed. Even if this email provides evidence suggesting that Plaintiff's street was not clear when he called off for work, it does not create a genuine dispute of fact as to whether Defendant honestly believed Plaintiff had lied to avoid duty.
Plaintiff offers no other evidence suggesting that Defendant acted in bad faith or did not honestly believe at the time of Plaintiff's termination that Plaintiff lied. Indeed, it is undisputed that Defendant engaged in a pre-termination investigation, that Defendant provided its justification to Plaintiff at the time of his termination, and that Defendant terminated another employee for the same reason close in time to Plaintiff's termination. Therefore, the Court finds that Plaintiff has not created a genuine dispute of material fact as to whether weaknesses or contradictions in Defendant's stated reasons for termination give rise to an inference of pretext.
Finally, Plaintiff argues that racial animus on the part of Sheriff Dedeke and those who influenced his decision gives rise to an inference of pretext. A plaintiff may establish pretext based on racial animus by demonstrating a causal nexus between discriminatory statements and the defendant's decision to terminate the plaintiff.
Plaintiff alleges racial animus on the part of Sheriff Dedeke, who made the final decision to terminate Plaintiff. Plaintiff highlighted several statements and actions that allegedly show racial animus on the part of Sheriff Dedeke. Plaintiff's evidence suggests that (1) Sheriff Dedeke has probably made statements that President Barack Obama is a muslim and was born in Africa; (2) Sheriff Dedeke viewed the placement of a picture of a monkey on a jail window by Caucasian officers, at a time when the only two inmates were African-American, as a joke; (3) Sheriff Dedeke did not believe statements by Caucasian officers that "if five black guys raped a white woman they would claim innocence" were racially discriminatory;
These allegations do not create a genuine dispute of material fact that racial animus on the part of Sheriff Dedeke was the true motivation behind Plaintiff's termination. The only statement attributed to Sheriff Dedeke is the statement claiming President Obama is a muslim and African born. Assuming that Sheriff Dedeke did make such a statement, Plaintiff does not allege that this isolated statement was made in connection with Plaintiff's termination or that it was made in the context of the workplace. The other alleged actions also fail to establish a causal nexus between Sheriff Dedeke's animus and Plaintiff's termination. Sheriff Dedeke agreed with the investigation finding that the picture of a monkey on the jail window was a joke, but this investigation was not connected to Plaintiff in any way and occurred nearly one year after Plaintiff's termination. This remote temporal proximity and the fact that Sheriff Dedeke ordered an investigation into the incident negate any inference of racial animus by Sheriff Dedeke based on his reaction to the incident. Further, the comment by the Caucasian officers was not connected to Plaintiff's termination, was not made by Sheriff Dedeke, and Sheriff Dedeke responded to the comment by investigating it and speaking with the officers involved. Plaintiff also asserts that the comment that "they won't make nothing of it," the "Americans with No Abilities Act" email, and the email chain with the words "niggers" and "chinks" establish racial animus on the part of Sheriff Dedeke. However, Plaintiff does not allege that Sheriff Dedeke made these comments. Nor does Plaintiff suggest that Sheriff Dedeke was aware of these comments, or that they were related in any way to Plaintiff, his position, or his termination. Therefore, this evidence does not create a genuine factual dispute as to whether racial animus on the part of Sheriff Dedeke served as pretext for Plaintiff's termination.
Plaintiff also asserts that racial animus on the part of Major Sherley, Major Dedeke, Lieutenant Metcalf, and Sergeant Cummings gives rise to an inference of pretext under the "cat's paw" or "rubber stamp" theory. Under the cat's paw or rubber stamp theory, a plaintiff can establish pretext by showing that an allegedly "biased subordinate's discriminatory reports, recommendation, or other actions caused the adverse employment action."
As to the first prong, Plaintiff alleges that Major Sherley's participation in the email containing the words "niggers" and "chinks," and Major Sherley's own use of such words demonstrates racial animus. Additionally, Plaintiff asserts that racial animus is shown on the part of Lieutenant Metcalf based on his investigation into Plaintiff after Plaintiff reported that another employee displayed a confederate flag license plate on the employee's car. Plaintiff also alleges racial animus on the part of Sergeant Cummings based on the 2009 cross burning comments. Finally, Plaintiff contends that Major Dedeke's racial animus is shown by his statement that President Obama is "colored black, but I think he's just as much white as he is black," and by sending the "Americans with No Abilities Act" email from his work email.
Plaintiff has not established a genuine dispute of material fact as to racial animus on the part of Major Sherley and Major Dedeke. The isolated statements and emails involving Major Sherley and Major Dedeke were not directed at Plaintiff or his position, and Plaintiff does not allege that they were causally related to his termination.
Plaintiff argues that Lieutenant Metcalf and Sergeant Cummings' involvement in the events leading to his termination satisfies the causation element of the cat's paw test. An employer can avoid liability under the cat's paw theory by conducting an independent investigation of the allegations against an employee.
Plaintiff brings a hostile work environment claim under Section 1981. To establish a hostile work environment claim, a plaintiff must show that (1) the plaintiff suffered racial harassment that was "pervasive or severe enough to alter the terms, conditions, or privilege of employment"; and (2) a basis exists to hold the employer liable for the hostile work environment.
The first element of a plaintiff's hostile work environment claim has both objective and subjective components.
Several Tenth Circuit decisions provide guidance as to the pervasiveness and severity factor under the objective component of a hostile work environment claim. The court has held that general ridicule that is not overtly racial does not support a hostile work environment claim.
Courts can consider conduct that occurred outside the four-year statute of limitations period under Section 1981 so long as an act contributing to the hostile work environment occurred within the statutory time period.
Here, Plaintiff submitted evidence that Deputy Smith frequently quoted movie lines directed at Plaintiff that contained the words "nigger" and "Alabama blacksnake." Plaintiff's testimony is inconsistent as to whether Smith used the term "nigger" more than once. However, the evidence, viewed in the light most favorable to Plaintiff, suggests that Smith used the term "Alabama blacksnake" almost every time he spoke to Plaintiff, perhaps on a weekly basis. Additionally, Plaintiff offered evidence of Sergeant Cummings' 2009 comment referring to burning crosses in Plaintiff's yard. Plaintiff claims that after he reported Cummings' comment, Cummings began harassing Plaintiff by standing behind Plaintiff at the gun range and by writing an unfavorable performance evaluation on Plaintiff. Plaintiff also alleges that supervisors referred to a Hispanic deputy as "beaner" in Plaintiff's presence on multiple occasions. Finally, Plaintiff offers evidence concerning the confederate flag license plate displayed on a co-worker's car, and the reprimand Plaintiff received from Lieutenant Metcalf after he complained about the license plate.
The Court finds that Plaintiff's evidence creates a genuine dispute of fact concerning whether the work environment at the Sheriff's Department was objectively hostile. The evidence may not clearly establish a "steady barrage of opprobrious racial comments" by multiple actors, but the evidence is also not limited to a few "isolated" racial comments. The evidence shows that Smith may have made directed the term "Alabama blacksnake" toward Plaintiff on a weekly basis, and that Cummings made the burning crosses comment more than once. Cummings' burning crosses comments, made in 2009, were only one year removed from the statute of limitations period,
The evidence also creates a genuine dispute of fact as to whether the comments unreasonably interfered with Plaintiff's work performance. Plaintiff alleges that he felt intimidated when Cummings stood behind him at the gun range, and that Cummings did not act in the same way toward other officers. Additionally, Plaintiff's evidence demonstrates that he felt the need to avoid Smith in the workplace because of Smith's comments. Thus, the evidence, viewed in the light most favorable to Plaintiff, creates a factual dispute concerning whether Plaintiff's work environment was objectively hostile.
In addition to establishing the existence of a hostile work environment, a plaintiff must establish a basis for holding the employer liable for such an environment.
The second basis discussed above is essentially a negligence theory.
To prevail on a negligence theory, a plaintiff must demonstrate that the employer had notice of the racially hostile environment and failed to adequately respond.
Plaintiff alleges that Defendant had actual notice of the comments made by Deputy Smith because he used the terms "nigger" and "Alabama blacksnake" in front of supervisors on multiple occasions. Defendant denies that any supervisors ever heard Deputy Smith use the term "nigger." Plaintiff further argues that Defendant had actual knowledge of comments referring to Deputy Silva as "beaner" because supervisors frequently called Deputy Silva "beaner" in his presence. Defendant contends that Sheriff Dedeke heard Deputy Silva refer to himself as "beaner" one time but told Deputy Silva that no one would refer to him as "beaner." Finally, Plaintiff argues that Defendant had actual knowledge of Sergeant Cummings' comments, and Defendant does not deny this. The conflicting testimony as to whether management-level employees heard these comments creates a genuine issue of material fact concerning whether Defendant had actual notice of the allegedly hostile work environment.
Plaintiff also argues that Defendant's response to these comments was inadequate. Plaintiff contends that although Sergeant Cummings was suspended and ordered to attend sensitivity training after making the cross burning comments, Defendant allowed Sergeant Cummings to remain Plaintiff's supervisor. Plaintiff also alleges that several supervisors heard Deputy Smith's comments and the "beaner" comments, but did nothing in response. Defendant counters that its response to Sergeant Cummings' comments and the "beaner" comment were adequate, and denies that any supervisors heard Deputy Smith's comments. Although Sergeant Cummings stopped making the cross burning comments after his suspension, Plaintiff has presented evidence that Cummings began standing behind Plaintiff at the gun range and gave Plaintiff a lower performance rating after the suspension. Thus, a genuine dispute of fact exists as to whether it was reasonable for Defendant to allow Cummings to continue serving as one of Plaintiff's supervisors after his suspension. Additionally, the conflicting testimony as to who heard Deputy Smith's comments and the "beaner" comments creates genuine disputes of fact as to whether Defendant had a duty to respond to these comments.
The Court finds that genuine disputes of material fact remain as to Plaintiff's hostile work environment claim. The parties dispute the pervasiveness and severity of the comments contributing to the hostile work environment, as well as whether the comments interfered with Plaintiff's work performance. The parties have also presented conflicting evidence as to Defendant's notice and response to the alleged hostile work environment. These factual disputes, which present close questions as to each element of Plaintiff's claim, should be resolved by a jury.
Plaintiff also brings a retaliation claim under Title VII and Section 1981. A plaintiff may prove retaliation with direct evidence that "retaliatory animus played a `motivating part' in the employment decision," or indirectly by using the three-part McDonnell Douglas framework.
To establish a prima facie case of retaliation, Plaintiff must show that (1) he engaged in protected opposition to discrimination; (2) he suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action.
Protected opposition "can range from filing formal charges to voicing informal complaints."
Plaintiff's December 29, 2012 email to Lieutenant Metcalf and the meeting with Sheriff Dedeke do not constitute protected opposition. Nowhere in the email or in the meeting with Sheriff Dedeke did Plaintiff mention differential treatment based on race concerning the off-duty car policy. Plaintiff's concerns related to differences in treatment between officers who lived within Leavenworth County and those who lived outside the county, rather than differences based on race. The complaints during Plaintiff's meeting with Lieutenant Metcalf and during the PSI about continued harassment by Sergeant Cummings, however, do constitute protected opposition.
Plaintiff alleges several instances of materially adverse employment actions. First, Plaintiff contends that after he sent the December 29, 2012 email, Lieutenant Metcalf began denying his vacation requests. Second, Plaintiff alleges that after his meeting with Sheriff Dedeke and other supervisors regarding the Department's off-duty car policy, Sheriff Dedeke placed a negative letter in Plaintiff's personnel file. Third, Plaintiff contends that the investigation into his use of a personal day on February 27, 2013 constituted an adverse employment action. Finally, Plaintiff argues that his constructive discharge on March 7, 2013 constituted an adverse employment action.
Plaintiff's constructive discharge is the only materially adverse employment action out of the events described above. To determine whether an employment action is adverse for purposes of a retaliation claim, courts apply the "reasonable employee standard."
Having found that Plaintiff's complaints about Sergeant Cummings during his meeting with Lieutenant Metcalf and during the PSI constituted protected opposition and that Plaintiff's constructive discharge was the only materially adverse employment action in this case, the Court must assess the causal connection between these two events. To satisfy the causation element of his prima facie case, Plaintiff must show "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action."
Having satisfied his prima facie case, Plaintiff must also meet his burden of demonstrating that Defendant's asserted reasons for his termination were pretextual. Plaintiff asserts many of the same bases for pretext in his retaliation claim as he does in his discriminatory termination claim. The Court has found, supra, that these bases do not create a genuine issue of material fact that Defendant's reason for termination was pretextual. Plaintiff also contends that similar investigations into the use of sick leave and alleged misconduct by Officer Francis, another African-American officer, establish pretext. These investigations, however, took place nearly a year after Plaintiff's termination, and Plaintiff does not contend that these investigations were retaliatory.
The Court finds that no genuine disputes of material fact exist as to Plaintiff's discriminatory termination and retaliation claims. Plaintiff has not presented evidence sufficient to create an inference that Defendant's stated reason for termination was pretext for race discrimination or retaliation. The Court finds, however, that genuine disputes of material fact remain as to Plaintiff's hostile work environment claim. The conflicting evidence as to the pervasiveness and severity of the alleged comments, as well as the notice Defendant had of the comments, is a genuine dispute of fact that should be resolved by a jury.
