KATHRYN H. VRATIL, District Judge.
Mary McDonald brings employment claims against the City of Wichita, Kansas and Gary Rebenstorf. Specifically, plaintiff alleges that Rebenstorf deprived her of First Amendment right to free speech and free association and denied her equal protection under the Fourteenth Amendment in violation of 42 U.S.C.§ 1983. Plaintiff claims that the City discriminated against her on the basis of sex and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e
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 that there are no genuine issues of material fact.
When applying this standard, the Court must view the factual record in the light most favorable to the party opposing the motion for summary judgment.
The following facts are uncontroverted or, where controverted, construed in a light most favorable to plaintiff.
The City of Wichita, Kansas, is a municipality in Sedgwick County, Kansas. The City has an internal Law Department with a Civil Division and a Criminal Division. The Civil Division staff provides legal advice to the City, drafts and reviews contracts, renders legal opinions and conducts civil litigation. The Criminal Division, known as the Prosecutors' Office, prosecutes criminal, traffic, domestic violence and environmental cases in municipal court, administers diversion and deferred judgment programs and assists citizens on a walk-in basis. Together, the two divisions employ approximately 26 individuals, including 13 attorneys. The City Attorney/Director of Law heads both divisions.
In 1976, the City hired Gary Rebenstorf as an attorney in the Law Department. From 1991 until he retired in 2014, he served as City Attorney/Director of Law.
In March of 2000, the City hired Mary McDonald to serve as Chief Prosecutor and supervisor of the Prosecutors' Office.
The City has a policy to "extend equal opportunity to qualified applicants and employees without regard to race, religion, color, sex, marital status, national origin, ancestry, disability, political affiliation, age, sexual orientation or other non-merit factors."
The City Council determines the budget for wages and salaries and fixes the compensation of all employees. Under city policy, the City Manager appoints and removes all city officers and employees and his or her decisions on employee matters are final.
In October of 2009, Assistant City Attorney Jan Jarman filed an internal complaint of discrimination alleging that Rebenstorf had discriminated on the basis of gender when he denied her application for a promotion. In January of 2010, the Human Resources Department informed Jarman that it had found no evidence to support her allegations.
On February 6, 2010, City Manager Robert Layton emailed Rebenstorf his annual goals for Rebenstorf as head of the Law Department, as follows:
Stipulated Facts, ¶ 22, citing Ex. 6 at KHRC 0371. On February 22, 2010, Rebenstorf agreed to accomplish these goals and stated that "this will be a good opportunity to review staff assignments, processes and procedures." Stipulated Facts, ¶ 23, citing Ex. 36 at DEF001230.
On May 19, 2010, Layton sent a memorandum to all city departments heads regarding the budget process for 2011-2012, stating as follows:
Based on financial trends, the status quo is not affordable in the future;
The organization must be re-shaped, and at an accelerated pace.
The City's budget is $3 million out of balance in 2010; $7 million in 2011;
Stipulated Facts, ¶ 24.
On August 13, 2010, Rebenstorf sent an email to city prosecutors regarding Layton's directives, as follows:
Stipulated Facts, ¶ 25(a). Rebenstorf informed the prosecutors that this was an opportunity to review prosecution legal services, as follows:
Defendants cite the survey results as revealing "leadership problems with resolving conflicts, cross-training, docket assignments and overall management of the Prosecutor[s'] Office." Doc. #69-8 at 12. None of the respondents suggested that the City eliminate the Chief Prosecutor position, however, and after reviewing the surveys, Rebenstorf did not conclude that the City should eliminate that position. Ex. C, Rebenstorf Depo. at 64. One respondent stated that "[p]rofessionally, the best thing that has happened to this office was when the Chief Prosecutor's position was created. This made [p]rosecutors more accountable and gave them a support system when questions emerged on difficult cases." Ex. E at DEF001312.
On September 3, 2010, Rebenstorf met individually with each prosecutor, including McDonald, to review their survey responses. On September 9, 2010, Rebenstorf told the prosecutors that he had identified one clear issue from the survey responses and individual meetings: "the City Attorney's Office needs more and better communications between the 2d [floor] (Prosecutors' Office) and 13th floor (Civil Division) floor." On September 13, 2010, Rebenstorf implemented a plan to temporarily assign one prosecutor to the 13th floor in the Civil Division on a four week rotation.
On September 16, 2010, Rebenstorf told prosecutors that on October 1, 2010, Sharon Dickgrafe, First Assistant City Attorney in the Civil Division, would present a plan to address common issues identified from the surveys, including lack of cross training, inequitable dockets and the deferred judgment program.
On September 24, 2010, based on discussions with city prosecutors, the municipal judge, court staff and the probation department, Dickgrafe gave Rebenstorf several options for docket assignments. Dickgrafe confirmed the need to cross train prosecutors and rotate dockets.
Stipulated Facts, ¶ 31. On October 1, 2010, Rebenstorf and Dickgrafe met with the prosecutors to discuss the proposed changes.
On October 20, 2010, Dickgrafe sent Rebenstorf a memo entitled "Prosecutor[s'] Office Reorganization." Ex G, Rebenstorf Depo. The memo did not mention the Chief Prosecutor position or McDonald and did not suggest that the City eliminate any attorney position.
On November 5, 2010, Rebenstorf sent the prosecutors a memo regarding the "Plan For Prosecutor[s'] Office" which outlined changes, including new docket assignments for all prosecutors including McDonald, effective November 29, 2010. Rebenstorf reassigned Jarman to the mental health and drug court docket. The memo did not mention elimination of the Chief Prosecutor position. Rebenstorf later testified that "[a]t the time the surveys were done, there was no — nothing on the radar screen to eliminate the chief prosecutor position." Ex. C, Rebenstorf Depo. at 69.
On November 10, 2010, Jarman submitted an internal complaint to the Human Resources Department. Ex. 45 at DEF000534-541. In part, Jarman alleged that Rebenstorf had assigned her the mental health and drug court dockets to retaliate for her discrimination complaint in 2009.
On November 29, 2010, the City and Rebenstorf received notice of Jarman's complaint. McDonald did not know about Jarman's complaint until November 29, when Jarman came by her office to tell her about it.
Ex. A, McDonald Depo. at 32, 77. Rebenstorf denies that discussion, stating that he purposefully never discussed the matter with McDonald because it did not involve her. Ex. 83 at 4, ¶14. Until an interview on March 24, 2011, McDonald had no further involvement with Jarman's complaint.
After Rebenstorf learned of Jarman's EEOC complaint, he began stripping McDonald's job duties.
On November 29, 2010, the changes to the Prosecutors' Office (as outlined in Rebenstorf's memorandum of November 5, 2010) became effective. Stipulated Facts, ¶ 36(a), citing Ex. 44 at DEF001555-57.
On December 15, 2010, Rebenstorf sent an email to Dickgrafe stating that he was looking at a new way of doing business for the supervisor of the Prosecutors' Office. He stated that the Chief Prosecutor should handle dockets on a regular basis, not just as a back-up. He suggested that the Chief Prosecutor handle all dockets for a two-week period during the course of a calendar year. He proposed that McDonald's first docket assignment be January 17, 2011. Stipulated Facts, ¶ 39, citing Ex. 47 at DEF001585. On December 17, 2010, Dickgrafe responded that a two-week rotation was too short. Stipulated Facts, ¶ 40, citing Ex. 48 at DEF001587. She proposed a six-month rotation but also expressed concern that scheduling conflicts would result in a "continuing shift of responsibilities among other prosecutors."
On December 28, 2010, Dickgrafe told Rebenstorf that McDonald had said that she was having difficulty keeping up with her case review and charging responsibilities. Dickgrafe expressed concern that if McDonald had the option of having other prosecutors back her up on case review and charging, she would transfer this responsibility to Jarman or another prosecutor. Dickgrafe stated that McDonald was not responsive to general office issues including record retention and scanning. Stipulated Facts, ¶ 41.
On February 23, 2011, Rebenstorf emailed McDonald concerning Chief Prosecutor docket assignments. He stated that in addition to her duties as a supervisor, she would handle traffic arraignments, walk-in dockets and traffic calls.
On March 7, 2011, Dickgrafe emailed Rebenstorf, stating that several prosecutors had met with her to discuss concerns which they felt they could not express during a meeting with McDonald because "there is a general fear of retribution by [McDonald] if negative comments are made by her staff." Ex. 50 at DEF0001431. Dickgrafe stated that the comments centered around three issues: McDonald's unwillingness to handle case review; her comments that prosecutors should "work ahead" and cover diversions when on vacation; and her comments that Kellogg Street tickets should never be amended.
Ex. 50 at DEF0001432. Dickgrafe concluded as follows:
On March 24, 2011, Michelle Moe, an attorney whom the City hired to investigate Jarman's EEOC complaint, interviewed McDonald about Jarman's complaint. Stipulated Facts, ¶44. McDonald had reservations about participating in the interview, as follows:
Ex. A, McDonald Depo. at 73-74. McDonald testified regarding the interview as follows:
On March 25, 2011, Rebenstorf met with McDonald to conduct her annual performance appraisal. Stipulated Facts, ¶ 45. Historically, Rebenstorf had rated McDonald very highly and McDonald had consistently averaged the second highest merit pay percentage increase in the department. On the evaluation in March of 2011, however, Rebenstorf gave McDonald lower scores than in previous years; she scored a 3.1 out of 5.0 possible points, which still rated as "Performs Well." Ex. 14 at DEF000206-207. Her lowest scores were in Part 3, which pertained to supervisors. Ex. 14 at DEF000203-205. McDonald scored an "Unsatisfactory/Improvement Required" on two components, as follow:
On April 1, 2011, Rebenstorf conducted a budget meeting with members of the Law Department. to discuss reorganization of the office and an expected city budget shortfall of $8,500,000.00 for 2012. Stipulated Facts, ¶ 46.
On April 7, 2011, Dickgrafe sent Rebenstorf a memo which addressed ways to increase revenues and decrease expenses in the Law Department. As for the Prosecutors' Office, Dickgrafe suggested as follows:
Stipulated Facts, ¶ 47, citing Ex. 52 at DEF001435-36.
On April 30, 2011, Dickgrafe sent Rebenstorf a memorandum entitled "Prosecutor[s'] Office Budget Scenario without Chief Prosecutor Position" which stated:
The net savings to our office would be approximately $51,500.
Stipulated Facts, ¶ 48.
A jail fee issue arose in 2011 after Sedgwick County began charging the City to incarcerate city prisoners in the county jail. In response, to reduce jail fees, Layton and Law Department officials began to discuss increasing diversion and deferred judgment programs. On May 18, 2011, McDonald told Dickgrafe that the Prosecutors' Office could extend the part-time prosecutor's position to full time to do jail fee reviews and that the position, which would lose grant funding in August of 2011, could pay for itself with the reduction in jail fees. Stipulated Facts, ¶ 49. Mark Manning, City Budget Director, emailed Dickgrafe and others about the jail fee issue, stating "I don't know if it means we hire an attorney, a clerk, an external auditor or whomever, but I think the payoff would be direct, immediate and exponential."
On June 10, 2011, Manning sent Rebenstorf an email stating that the City Manager was going to add a prosecutor to audit jail fees and diversion programs, and would transfer $50,000.00 from the general fund to pay for the position. He said that "aside from Fire, your department I believe is probably the only one getting any staff at all (and not losing any staff for that matter), so you may be the envy of your peers. Hopefully the mental health prosecutor (if she's the one you make full-time) is a cracker jack, because we really need the jail fees pared down." Stipulated Facts, ¶ 52.
On June 11, 2011, Rebenstorf sent Manning details of a proposed reorganization of the Law Department. Stipulated Facts, ¶ 53. Rebenstorf proposed eliminating the Chief Prosecutor position, with most of those duties transferred to Dickgrafe. He also included a comparison of the Law Department proposed budget, which would eliminate the Chief Prosecutor position, and the City Manager budget, which did not do so.
On June 23, 2011, Rebenstorf and Manning conferred regarding Rebenstorf's idea to restructure the Prosecutors' Office. Manning offered advice to Rebenstorf, including a time line to implement the change consistent with the budgeting process.
At his deposition, Rebenstorf was asked what new information was available from April through June of 2011 that justified eliminating the Chief Prosecutor position. (In 2010, he had recommended expanding the Chief Prosecutor duties to include all charging decisions.) His answer: "[t]he budget." Ex. C, Rebenstorf Depo. at 140-41. Rebenstorf testified that the City Manager did not require him to cut any certain position, but that "I know that in addressing the budget, my budget is 90 percent salaries, so if I'm going to have to make any cuts it's going to be salaries."
In June of 2011, an Attorney III position became vacant in the Civil Division. Ex. C., Rebenstorf Depo. at 76. The position was for a trial attorney with experience in federal civil rights litigation and specialized knowledge and experience to handle complex and difficult litigation matters.
Ex. A, McDonald Depo. at 215-16. McDonald had extensive experience with police officers, the Police Department and the law that applied to police activity. As Chief Prosecutor, she interacted with officers and provided legal advice to the police department. Rebenstorf testified that her duties included "deal[ing] with the police department as far as charging decisions or legal advice that the police department would seek from the Prosecutors' Office." Ex. C, Rebenstorf Depo. at 25.
In September of 2011, the City hired Chan Townsley, a male, for the Attorney III position. Townsley described his litigation experience as follows:
Ex. P, Townsley Declaration, ¶ 3.
McDonald had significantly more experience than Townsley with police procedures and the applicable law; his primary experience was civil tort law. McDonald's experience with Section 1983 litigation was comparable to Townsley's. The position, however, also required substantial civil litigation experience in state or federal courts; Townsley had such experience while McDonald did not.
Rebenstorf did not notify McDonald that her position might be eliminated or consider her for the Attorney III position. Rebenstorf testified that he was unaware that McDonald had any Section 1983 experience. Ex. C, Rebenstorf Depo. at 78.
On July 13, 2011, Rebenstorf asked Manning to clarify whether the proposed budget would add a legal assistant in 2011 or 2012. Manning responded that it would be in 2012. He further stated as follows:
Stipulated Facts, ¶ 57, citing Ex. 61 at BF0245.
On July 25, 2011, Dickgrafe sent a memo to Rebenstorf proposing "a team prosecution approach" as part of the Prosecutors' Office reorganization. The approach would have two teams to manage dockets with Attorney II positions as team leaders. Dickgrafe proposed that she meet weekly with Attorney II staff and have daily office hours in the Prosecutors' Office.
On August 3, 2011, Rebenstorf told McDonald that she would be responsible for the environmental court docket until the Prosecutors' Office hired a new prosecutor. Rebenstorf stated that "it is important to have your position actively involved in the prosecution of a daily docket. This is an important part of the transformation of the [P]rosecutors' Office." Stipulated Facts, ¶ 59.
On November 8, 2011, Dickgrafe sent Rebenstorf a memo regarding reassignment of responsibilities and elimination of the Chief Prosecutor position "due to budget cuts in 2012." Stipulated Facts, ¶ 61. On November 15, 2011, Dickgrafe told Rebenstorf that she had met with the prosecutors to evaluate diversion programs and docket rotation, and that in her opinion, "prosecution teams" could be utilized to address the loss of positions due to budget issues. Stipulated Facts, ¶ 62.
On December 6, 2011, Dickgrafe sent Rebenstorf an email regarding the Chief Prosecutor position. She stated that she had reviewed McDonald's self evaluation and believed that the planned reassignments covered all responsibilities of the Chief Prosecutor. Dickgrafe also stated that "I do think [McDonald] placed herself on a number of boards, which were not necessarily related to municipal court prosecution. I would recommend that we evaluate our office's participation in these boards as their terms come up." Stipulated Facts, ¶ 63, citing Ex. 64 at DEF002181.
On January 14, 2012, Rebenstorf sent a memo to Layton to inform him that the Law Department had expanded its diversion programs in traffic violations and petty theft cases to increase revenue and decrease jail fees.
On January 18, 2012, Rebenstorf submitted a draft layoff plan to Anne Warren, Interim Director of Human Resources, for review and discussion. On January 19, 2012, he sent Layton the lay-off plan to eliminate the Chief Prosecutor position effective February 24, 2012. In doing so, he stated that "[d]ue to the restructuring of the City Prosecutor[s'] office, and realignment of the duties and responsibilities of the Chief Deputy City Attorney, the position is no longer required for supervision of prosecution staff." Stipulated Facts, ¶ 66. On January 28, 2012, Rebenstorf, Warren, Assistant City Manager Cathy Holdeman and Layton approved the lay-off plan. Stipulated Facts, ¶ 67.
On February 17, 2012, Rebenstorf and Kathleen Harris from Human Resources met with McDonald to inform her of the lay-off. He told McDonald that
Stipulated Facts, ¶ 68. The City offered McDonald a position as an Attorney I at an annual salary of $78,389 with responsibilities including review of jail fees, prosecuting the environmental court docket, and other responsibilities as assigned.
On February 24, 2012, McDonald met privately with Dickgrafe. McDonald stated that she believed the decision to eliminate her position was made suddenly and based on her comments in her current evaluation. She claimed that women were treated differently than men — that Rebenstorf did not yell at or treat men the way he treated women.
On February 28, 2012, McDonald filed an internal complaint of discrimination with Human Resources. Stipulated Facts, ¶ 71, citing Ex. 66 at TWG000098.
On March 2, 2012, the Chief Prosecutor position terminated and McDonald began work an Assistant City Attorney I. On March 7, McDonald applied for a position as Chief Probation Officer, but the City did not offer her that position.
On March 8, 2012, Interim Director of Human Resources Warren contacted Eric B. Metz of Triplett, Woolf & Garretson, LLC, regarding McDonald's discrimination complaint. On March 20, 2012, Metz agreed to represent the City and spoke with McDonald.
The City discrimination and retaliation policies require a "factfinding investigation" and written findings and recommendations. Doc. #66 at 72; Doc. #65 at 6. On March 22, 2012, Metz wrote to McDonald. He stated, "[a]s I have informed you, I have been retained by the City of Wichita as outside counsel to perform an investigation of the allegations of your discrimination complaint and as set forth in related documents which you indicate you have forwarded to the Kansas Human Rights Commission, and to report the results of that investigation to the City Manager." Doc. #66 at 334.
On March 23, 2012, McDonald filed a charge of discrimination with the EEOC and the KHRC. Stipulated Facts, ¶ 82. On March 27, 2012, the City received formal notice of the charges and suspended its internal investigation of her complaint.
On March 1, 2012, McDonald submitted an application for medical leave from March 26 to June 26, 2012. With Rebenstorf's approval, the City granted McDonald medical leave from March 26 to June 18, 2012. Stipulated Facts, ¶ 74, citing Ex. 67 at BF0501-505. McDonald had surgery on March 26, 2012, and was on leave under the Family Medical Leave Act until July 18, 2012. On July 18, 2012, when she returned from medical leave, McDonald resigned her position as Attorney I.
At his deposition, Rebenstorf admitted that McDonald was a "good prosecutor" and did "a good job" throughout her tenure at the City. Ex. C, Rebenstorf Depo. at 17-18. Rebenstorf testified that elimination of her position had "nothing" to do with job performance.
McDonald testified that Rebenstorf treated female attorneys in the Law Department much differently than he treated male attorneys. She testified that Rebenstorf yelled at female attorneys, made derogatory remarks about them and made it a difficult place to work. In particular, she testified that Rebenstorf yelled at Dickgrafe, Rundell and another female attorney, Beth Harlenske. She never saw Rebenstorf yell at a male attorney or be disrespectful to a male attorney. Rebenstorf made derogatory comments about female attorneys but she never heard him make derogatory remarks about male attorneys. She did not give specific details about the yelling and derogatory remarks.
McDonald also testified that Rebenstorf treated men differently than women when they made mistakes. Ex. A., McDonald Depo. at 17-18. For example, she testified that four men who worked in the legal department made mistakes and were not treated harshly in performance evaluations.
On January 14, 2014, McDonald filed suit in this Court. Under Section 1983, she alleges that Rebenstorf denied her First Amendment right to free speech and free association and her Fourteenth Amendment right to equal protection. Under Title VII and the KAAD, plaintiff alleges that the City discriminated against her on the basis of sex and retaliated against her. Defendants assert that they are entitled to summary judgment on each claim.
Under Title VII and the KAAD, plaintiff asserts that by eliminating the Chief Prosecutor position, the City discriminated against her on the basis of gender and retaliated against her for protected activity.
Under Title VII and the KAAD, plaintiff bears the ultimate burden of proving that her employer intentionally discriminated against her.
Where, as here, plaintiff seeks to use circumstantial evidence to show discriminatory intent, the Court employs the three-step burden-shifting framework set forth in
If plaintiff establishes a prima facie case, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for its actions.
Defendant concedes the first two element of a prima facie case — that plaintiff belongs to a protected class and that elimination of her position as Chief Prosecutor was an adverse employment action.
The
Plaintiff first relies on Rebenstorf's decision to fill the Attorney III position with a male attorney who had very little experience in Section 1983 litigation in federal court, combined with Rebenstorf's failure to encourage her to apply for that position when (unbeknownst to her) he was considering eliminating the Chief Prosecutor position. Additionally, plaintiff points to her testimony that Rebenstorf treated female attorneys in the Law Department different from male attorneys. Somewhat more specifically, plaintiff testified that Rebenstorf yelled at female attorneys, including Dickgrafe, Rundell and Harlenske, made derogatory remarks about them and "made it a difficult place to work." Ex. A, McDonald Depo. at 11-12. She never saw Rebenstorf yell at, disrespect or make derogatory remarks about a male attorney.
Citing
The Court finds that the circumstances in which Rebenstorf created and filled the Attorney III position, together with plaintiff's testimony that Rebenstorf yelled at and made derogatory comments about women attorneys but not male attorneys, give rise to a prima facie case.
The Court notes that plaintiff's Title VII claims against the City rely on the premise that in eliminating the Chief Prosecutor position, Rebenstorf was the decision maker. In its summary judgment briefing on plaintiff's claims under Section 1983, the City asserts that under city policy, the City Manager has exclusive authority to make employment decisions and that plaintiff therefore cannot establish municipal liability under Section 1983 based on Rebenstorf's actions. Plaintiff, however, has now abandoned any claims against the City under Section 1983.
The City asserts legitimate, nondiscriminatory reasons for eliminating plaintiff's position: budgetary constraints and restructured operations of the Criminal Division. The City cites evidence that it experienced severe budget issues in 2010 and 2011 and that the City Manager directed department leaders to review their operations for possible restructuring to cut costs and improve revenues. Rebenstorf conducted a survey of the Prosecutors' Office and based upon the survey results, implemented management changes through Dickgrafe. Over time, these changes resulted in the transfer of many duties from plaintiff to Dickgrafe and the transition of plaintiff's role from supervisor to front-line prosecutor. In April of 2011, in response to budget issues, Dickgrafe gave Rebenstorf a proposal to eliminate the Chief Prosecutor position. Budget Director Manning became involved and in January of 2012, the City Manager approved the plan.
The City has cited evidence of legitimate, nondiscriminatory reasons for restructuring the Prosecutors' Office, including the elimination of the Chief Prosecutor position. The burden thus shifts back to plaintiff to show a genuine issue of material fact whether the proffered reasons are a pretext for discrimination.
Plaintiff can present many forms of evidence to establish that defendant's stated reasons are pretextual.
Plaintiff can show pretext by revealing 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 thus infer that the employer did not act for the asserted nondiscriminatory reasons.
Plaintiff asserts that defendant's proffered reasons for eliminating the Chief Prosecutor position are a pretext for discrimination. She asserts that the most important such evidence is the shifting and inconsistent positions taken by defendants. She then sets forth a detailed chronology. Because plaintiff's pretext argument is extremely nuanced and detailed, the Court sets out her factual argument as follows:
In February of 2010, the City Manager asked Rebenstorf to review the organization of the office to determine if staff assignments were properly aligned with the legal needs of the City. In May of 2010, the City Manager directed all department heads to identify ways to more efficiently provide services and cut budgets. In August of 2010, Rebenstorf asked all employees in the Prosecutors' Office to complete a comprehensive survey. He stated that due to budget pressures, the City Manager had asked him to review the way the office functioned, but added that to professionally and ethically perform legal services for the City, "it is necessary to maintain the attorney staffing level." In October of 2010, Rebenstorf met with the prosecutors about a draft reorganization plan which included centralizing all charging decisions with the Chief Prosecutor. On November 5, 2010, Rebenstorf met with the prosecutors about a second draft reorganization plan. Both of these plans maintained attorney staffing levels and did not modify the supervisory structure.
On November 24, 2010, Jarman, whom plaintiff supervised, filed an EEOC charge alleging that Rebenstorf had retaliated against her. Immediately after Jarman told plaintiff that she had filed the EEOC charge, Rebenstorf called plaintiff to his office and told her that he was upset that she had not kept him informed of events in the office. Plaintiff told him that she had just learned of Jarman's complaint. Rebenstorf responded that he did not believe plaintiff and that he could longer trust her.
Three weeks later, on December 13, 2010, Rebenstorf first proposed changing the Chief Prosecutor position, suggesting that instead of a primarily supervisory position, it become more of a front-line prosecutor position.
On March 24, 2011, outside counsel for the City interviewed Rebenstorf, McDonald and others in the Law Department about Jarman's EEOC complaint.
In April of 2011, Rebenstorf changed his position regarding the need to maintain attorney staffing levels and for the first time advocated eliminating the Chief Prosecutor position. At his deposition, when asked why he changed his mind, he responded, "the budget." Specifically, he stated that "the budget requirements the manager was giving me was [sic] going to require me to deal with positions, cutting positions." Rebenstorf could not point to any document from the City Manager which cut the Law Department budget or told him to cut positions. In fact, the Law Department budget for 2012 increased.
Plaintiff asserts that based on all of these facts, a reasonable jury could conclude that Rebenstorf has provided no persuasive explanation for reversing his position from maintaining attorney staffing levels and current supervision structure (including the Chief Prosecutor position) to advocating the elimination of the Chief Prosecutor position. Plaintiff asserts that given the timing, a jury could conclude that Jarman's EEOC complaint and his perception that plaintiff must have been involved in it motivated Rebenstorf's reversal. Plaintiff asserts that a reasonable jury could conclude that Rebenstorf misrepresented his reasons for eliminating the Chief Prosecutor position.
The City argues that plaintiff has failed to demonstrate pretext because she cannot show that the City was not experiencing a budget crisis or that the idea of eliminating her position did not arise from efforts to restructure Law Department management to reduce costs in response to a budget crisis. The City also argues that plaintiff has produced no evidence that the surveys were a proximate cause in eliminating her position or that defendants cited the surveys as a reason to eliminate her position. Finally, the City asserts that plaintiff has failed to show that its decision to hire a male attorney, months before it decided to eliminate plaintiff's position, had any relationship to the decision to eliminate her position.
Plaintiff primarily asserts that a jury could conclude that Rebenstorf is not a credible witness and therefore disbelieve his testimony regarding the proffered reason for eliminating her position. In response, defendant cites an insurance case for the proposition that "[s]standing alone, attacks on the credibility of evidence offered by a summary judgment movant do not warrant denial of a summary judgment motion."
Plaintiff is correct that the credibility of the City's proffered reason is at issue, and that explanation depends largely on the credibility of Rebenstorf's testimony. Citing
Here, plaintiff has pointed to inconsistencies in Rebenstorf's explanations from which a jury could find pretext. The City therefore is not entitled to summary judgment on plaintiff's gender discrimination claims under Title VII and the KAAD.
Title VII and the KAAD forbid retaliation against an employee because she has "opposed" any practice made unlawful by Title VII, or because she has "participated" in an investigation, proceeding, or hearing regarding a claim of discrimination.
To state a prima facie case of retaliation, plaintiff must show (1) that she engaged in protected opposition to discrimination or participated in an investigation regarding a claim of discrimination, (2) an employment action which a reasonable employee would have found materially adverse, and (3) a causal connection between the protected activity and the materially adverse action.
Regarding the first element of a prima facie case, plaintiff appears to assert that Rebenstorf retaliated against her for participating in an investigation of a Title VII complaint. As evidence, she cites (1) his erroneous belief that plaintiff had supported or encouraged Jarman's complaint of retaliation and (2) the fact that on March 24, 2011, she participated in an interview regarding Jarman's complaint. Neither side addresses whether a decision maker's subjective belief that plaintiff supported another's complaint of discrimination meets the requirement that plaintiff engaged in protected opposition to discrimination. Plaintiff's participation in the interview on March 24, 2011, however, clearly meets the first element of the prima facie case.
The City concedes the second element of plaintiff's prima facie case,
To establish the casual connection, plaintiff must produce evidence from which one can infer that the City would not have taken the adverse action if plaintiff had not engaged in protected activity. Plaintiff may show causal connection with evidence that justifies an inference of retaliatory motive, such as protected conduct closely followed by adverse action.
The City decided to eliminate plaintiff's position in January of 2012 — nearly ten months after her protected conduct on March 24, 2011. As early as June 11, 2011, however, Rebenstorf proposed eliminating the Chief Prosecutor position. On its own, this time frame arguably establishes a causal link.
The burden thus shifts to defendant to show a legitimate, nonretaliatory reason for its actions. Defendant relies on the same justification it did in response to plaintiff's Title VII gender discrimination claim, and the Court finds that it has satisfied that burden.
Plaintiff relies on the same pretext argument as in her Title VII and KAAD gender claims. For the reasons set forth in the Court's analysis of the gender claims, the Court finds that plaintiff has offered evidence on which a jury could reasonably find that defendant's articulated reasons were a pretext for retaliation. The Court therefore finds that defendant's motion for summary judgment on plaintiff's Title VII and KAAD retaliation claims should be overruled.
As noted, plaintiff asserts that Rebenstorf violated her First Amendment rights to free speech and free association in violation of Section 1983.
In her response brief, plaintiff clarifies that she brings two distinct First Amendment claims. Specifically, plaintiff asserts that Rebenstorf retaliated against her for exercising her First Amendment right (1) to freely associate with Jarman, who had filed an EEOC complaint, and to speak in the investigation of Jarman's complaint; and (2) to freely speak by filing her own EEOC complaint.
Rebenstorf asserts that he is entitled to summary judgment because plaintiff cannot establish that he violated her First Amendment rights. Rebenstorf asserts that even if plaintiff can show a constitutional violation, he is entitled to qualified immunity because the asserted right was not clearly established when the City eliminated plaintiff's position.
Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
When a defendant asserts a qualified immunity defense at the summary judgment stage, the burden shifts to plaintiff to show that defendant violated a constitutional right and that the constitutional right was clearly established at the time of the alleged violation.
When a defendant asserts qualified immunity, the Court may address either question first.
Preliminarily, to state a claim for First Amendment retaliation, plaintiff must identify the constitutionally-protected speech or activity that allegedly caused defendant to retaliate.
Plaintiff first asserts that on January 28, 2012, Rebenstorf approved the plan to eliminate her position because he mistakenly believed that she supported Jarman in making her internal complaint of retaliation on November 10, 2010.
Rebenstorf distinguishes these cases because they all involve association with a person in a close relationship with plaintiff. Indeed, plaintiff has not pointed to any cases in which a supervisory or co-worker relationship, without more, supported an association claim. Although a close, non-familial relationship could support a First Amendment association claim, plaintiff has not shown any facts to establish such a relationship in this case. The Court therefore finds that Rebenstorf is entitled to summary judgment on plaintiff's First Amendment retaliation claim that Rebenstorf retaliated because of her alleged association with Jarman and her internal grievance.
As noted, plaintiff also asserts that Rebenstorf eliminated her Chief Prosecutor position in retaliation for her cooperation with the EEOC investigation of Jarman's complaint.
When considering a speech retaliation claim, the Court applies the
When public employees make statements pursuant to their official duties, they do not speak as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Rebenstorf asserts that plaintiff's participation in the EEOC interview, and any speech she made during that interview, fell within plaintiff's official duties and therefore was not protected. He points to City policies which prohibit discrimination and harassment, require every employee to report discrimination and harassment and require all supervisory employees to investigate and take immediate and appropriate corrective action. Although the Tenth Circuit takes a broad view whether speech is pursuant to official duties, it has also noted that a generalized grievance policy cannot be an official duty without eviscerating
Plaintiff cites
Plaintiff asserts that Rebenstorf eliminated her Chief Prosecutor position because she filed her own EEOC complaint. Because plaintiff was a public employee, to determine whether she has set out a prima facie case of retaliation, the Court applies the five-part
The fourth element of
In support of her claim that Rebenstorf retaliated against her for speech contained in her own EEOC complaint, plaintiff asserts only one adverse employment action — the elimination of her position as Chief Prosecutor. Because plaintiff made her EEOC complaint after defendant eliminated her Chief Prosecutor position, she clearly cannot show a causal link between her speech and the adverse action.
Accordingly, Rebenstorf is entitled to summary judgment on plaintiff's First Amendment claim based on her own EEOC complaint.
Under Section 1983, McDonald alleges that when Rebenstorf eliminated the Chief Prosecutor position because of her gender, he violated her Fourteenth Amendment right to equal protection. Rebenstorf does not raise a qualified immunity defense to this claim. Rather, he simply denies that he violated plaintiff's equal protection rights. As set forth above, the Court has found that plaintiff has set forth a prima facie case of gender discrimination. Whether the claim is brought under Section 1983 or Title VII, the elements of a disparate treatment claim are the same.
The following claims remain for trial: Plaintiff's claim under Section 1983 that Rebenstorf violated her equal protection rights based on gender discrimination and her claims under Title VII and the KAAD that the City discriminated against her because of gender and retaliated against her for participation in Jarman's EEOC complaint.
Stipulated Facts, ¶ 29, citing Ex. 43 at DEF000841.
Ex. 82, McDonald Depo. at 30-31. Jarman also testified that McDonald had no idea that she was going to file a complaint, and that McDonald was not part of her decision to file it.
Stipulated Facts, ¶ 54, citing Ex. 18 at DEF000351.
Ex. C, Rebenstorf Depo. at 77.
