JULIE A. ROBINSON, Chief District Judge.
Plaintiff Brandon Johnson brings suit against Defendants Cherokee County Board of County Commissioners and Sheriff David M. Groves. He asserts claims for racial discrimination, a hostile work environment, and retaliation under Title VII. Plaintiff also brings claims under 42 U.S.C. §§ 1981 and 1983. Defendants seek summary judgment on all claims (Doc. 95). Plaintiff's Motion to Amend the Pretrial Order is also before the Court (Doc. 128). For the reasons stated in more detail below, the Court denies in part and grants in part Defendants' motion. In addition, the Court denies Plaintiff's Motion to Amend.
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.
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.'"
Plaintiff Brandon Johnson brings suit against two Defendants: (1) the Board of County Commissioners of Cherokee County ("the Board"), and (2) Sheriff David M. Groves. Plaintiff worked at the Cherokee County Sheriff's Department ("the Sheriff's Department"), but Cherokee County, Kansas employed and paid him. Cherokee County acts by and through the Board. Sheriff Groves was an agent, employee, or servant of Cherokee County. Cherokee County is an employer within the meaning of Title VII.
Plaintiff is of mixed race. His ancestry is both African-American and Caucasian. On August 17, 2012, Plaintiff applied for employment with the Sheriff's Department. On March 28, 2013, Sheriff Groves hired Plaintiff.
Shane Gibson is the Chief Deputy for the Sheriff's Department. Gibson was Plaintiff's direct supervisor. Gibson reported to Sheriff Groves.
For 2015, the hourly rate for all patrol deputies was raised to $14.00 per hour. Sheriff Groves testified that the pay increase did not apply to all deputies at the same time but that it was done based on the month of hire. The first pay increase was effectuated in December 2014. Deputy Dean Kidd began working full-time in March, and his hourly rate increased in December 2014. Deputy Beau Hamlin began working full-time in June, and his hourly rate increased in March 2015.
On April 1, 2013, Plaintiff began working part-time as a patrol deputy. Approximately four months later, on August 13, 2013, Sheriff Groves moved Plaintiff to a full-time deputy position.
On January 2, 2014, Plaintiff sat for the Sheriff's Department Investigator Test for the first time for an opening for a Detective position. He was not hired for this position. Dean Kidd received it.
On February 5, 2014, Plaintiff was issued his first written performance review. He generally received ratings from good to very good, with some outstanding marks. He did not receive any below average or unsatisfactory marks. Some typewritten comments included that his "paper service completion had been below average but is recently improving;" he "had multiple opportunities for additional work that were not sought out;" he "has a difficult time accepting constructive criticism;" and "can seem to be excessive in asking for equipment, assignment changes, etc....."
Plaintiff's second written performance review was on July 1, 2014. In this review, he received a number of good marks, five very good marks, two below average marks, and a couple of outstanding marks. Plaintiff's overall evaluation was good. His below average marks were for "reliability and dependability" and working relationships. Some typewritten comments included that he "was not willing to work extra shifts" and that "[d]espite having interactive skills that allow him to engage the public in a positive way, [he] struggles with creating strong relationships with co-workers, which does not go towards creating an overall positive work environment."
Plaintiff received one formal written reprimand on September 5, 2014, based on an incident that occurred on August 29, 2014. On that date, the Sheriff's Department received a complaint about a deputy driving without due regard for safety while running with his lights and sirens. After reviewing Plaintiff's car camera video, it was confirmed that Plaintiff passed two cars on a hill in a no passing zone while traveling over 100 miles per hour, and that there was an oncoming car just past the crest of the hill. The camera also indicated that he entered an intersection, at 55 miles per hour, with his view obstructed. The Sheriff's Office issued a written reprimand for violating the Rules of Conduct Policy and the Agency Vehicle Driving Policy.
On October 21, 2014, Plaintiff sat a second time for the Sheriff's Department Investigator Test for an opening for a Detective position. He was not hired for this position. Beau Hamlin received it.
On May 30, 2015, the Sheriff's Department received a complaint from the Chief of Police of Oswego, Kansas regarding Plaintiff. On June 1, Sheriff Groves requested that Gibson locate video of the May 30 incident. On both June 1 and June 4, Gibson looked for the video on Plaintiff's car camera and body camera. He found that the May 30 video had not been recorded. Plaintiff had not reported any problems with either recording device. Nobody asked Plaintiff about the incident or the missing videos.
On June 8, 2015, Sheriff Groves requested by email that Plaintiff participate in a funeral procession for a family member of the Sheriff's Department. Plaintiff indicated that he did not want to attend. Plaintiff testified that he went to Gibson, after receiving the email, to speak with him about it. Plaintiff states that when he said, "Hello," Gibson responded with, "What the fuck do you want?" When Plaintiff asked Gibson if participation in the funeral procession was mandatory, he states that Gibson responded with, "Do you work patrol?" After Plaintiff responded yes, Gibson then stated, "Go F-ing do it" and to get out of his office. Plaintiff states that when he turned around to leave, he saw a chair go flying. He testified that Gibson got in his face and said, "Get the fuck out and go patrol." Gibson does not recall this exchange.
On June 10, 2015, Gibson located a body camera video of a car stop by Plaintiff on May 24, 2015. The stop was not fully recorded on Plaintiff's car camera video. Neither Gibson nor Sheriff Groves spoke to Plaintiff about this incident.
On June 21, 2015, Plaintiff was dispatched to a theft call at 1:15 p.m. Plaintiff did not respond. At approximately 1:30 p.m., Sergeant Harper saw Plaintiff watching YouTube videos at the Sheriff's Department.
Gibson and Sheriff Groves spoke to each other about Plaintiff's termination before it happened. On June 25, 2015, Sheriff Groves terminated Plaintiff. He did not give Plaintiff a specific reason for his termination but told Plaintiff that they "could discuss it at a later time." Sheriff Groves never informed Plaintiff, through any type of communication, the exact reasons for Plaintiff's termination.
During Plaintiff's employment, he worked with Deputy Dean Kidd. Prior to Plaintiff's employment, Kidd was involved in a tasing incident with Brian Kerns, another African-American deputy employed with the Cherokee County Sheriff's Department.
Plaintiff testified that Kidd called him a "boy" and told him that he "needed to pick up trash after the white folk." In addition, Kidd played a racist Mario Cart YouTube video at work in front of Plaintiff. In this video, it shows a "gorilla guy driving," and the voiceover uses the phrase, "got you nigger." Kidd also showed the video to Kerns several times. Kerns told Kidd that it was not funny and was inappropriate. Kidd merely laughed.
Plaintiff states that he was told by a former deputy of the Sheriff's Department that Deputy Beau Hamlin called another employee's black dog a "nigger." Plaintiff did not hear or witness this event.
During Plaintiff's employment, he spoke with Kerns about "racial jokes" and being treated differently because of his race. Plaintiff does not specifically recall when he spoke with Kerns, but he believes that he spoke with him in the summer of 2014. Kerns never spoke to Sheriff Groves about the racial incidents or any of Plaintiff's statements to Kerns.
In 2014, Plaintiff spoke with Deputy Mike Potter about problems in the office. Plaintiff did not describe to Potter what the problems were. Plaintiff also spoke to Chief Investigator Doug Wydick regarding what to do about problems he was having with employees. Plaintiff did not go into detail, and he only asked in general form.
Plaintiff testified that he tried to speak with Deputy Gibson about racial discrimination but was unsuccessful in doing so because when he asked Gibson whether he had a moment to speak, Gibson responded with something akin to "what?" or "what the fuck do you want?" Plaintiff left Gibson's office when he knew that his attempt failed. He cannot recall when this attempted conversation took place.
Plaintiff testified that he complained to Sheriff Groves about race discrimination sometime between December 2014 and January 2015.
Plaintiff also spoke to a non-employee, Jason Daniels, about his mistreatment in the workplace. Daniels is the Chief of Police for Columbus, Kansas. Sheriff Groves did not know prior to June 25, 2015 (after Plaintiff's termination) that Plaintiff had communicated information about racial harassment to Daniels. Sheriff Groves and Daniels, however, did speak in late 2014 or early 2015, about Kidd's reputation for being racist and the tasing incident between Kidd and Kerns. Daniels also spoke to Sheriff Groves about Kidd's efforts to seek employment with the City of Columbus because Daniels was unhappy with the manner in which Kidd attempted to seek employment.
Deputy Dean Kidd and Deputy Frank Piepho, both of whom are Caucasian, received multiple disciplinary measures prior to their terminations, including suspensions and numerous written reprimands. Kidd had at least nine documented instances of work misconduct or written reprimands before his termination. Piepho was written up for verbal abuse and harassment of a female co-worker, but that write-up did not result in his immediate termination.
On December 18, 2015, Plaintiff filed a Charge of Discrimination with both the Kansas Human Rights Commission ("KHRC") and the Equal Employment Opportunity Commission ("EEOC"). Upon receipt of Plaintiff's charge, the Sheriff's Department conducted an internal investigation into the allegations. This investigation revealed that a tasing incident occurred between Kidd and Kerns prior to Plaintiff's employment. It also revealed that Kidd displayed an inappropriate video in front of Plaintiff. On January 19, 2016, Kidd was terminated based on the findings of the Sheriff's Department's internal investigation that he engaged in racial discrimination/harassment while at work.
Plaintiff filed this lawsuit on November 6, 2017, asserting five claims. Under Count I, he alleges a hostile work environment and discrimination based on his race under Title VII. In Count II, he brings a retaliation claim under Title VII. Under Count III, he brings a racial discrimination claim pursuant to 42 U.S.C. § 1981. In Counts IV and V, he asserts substantive and procedural due process claims pursuant to § 1983. Defendants seek summary judgment on all claims.
As an initial matter, Defendants contend that the Board cannot be held liable for Plaintiff's asserted claims. They contend that the Board merely facilitates the funding of the Sheriff's Department and Sheriff Groves has the sole discretion over the Sheriff's Department. The parties agree that Sheriff Groves was acting as an agent of Cherokee County and that Cherokee County technically employed Plaintiff.
A sheriff's department acts as an agent for the county, and the sheriff's department is an office through which a county may act.
In a recent Title VII lawsuit for sex discrimination against a sheriff's office, the District of Kansas found that the county's board of commissioners was a proper defendant when the plaintiff sued the county sheriff's department and functionally sued the county.
Similarly, in this case, Plaintiff's suit against the Board functions as one against Cherokee County, acting through the Sheriff's Department. Thus, the Board is a proper defendant.
Plaintiff brings a hostile work environment claim based on racial harassment under Title VII. To survive summary judgment on a hostile work environment claim, a plaintiff must show that he was discriminated against because of his membership in a protected class, and that the discrimination was "sufficiently severe or pervasive such that it altered the terms or conditions of [his] employment and created an abusive working environment."
In addition, a plaintiff must be able to point to "more than a few isolated incidents of racial enmity."
Defendants argue that summary judgment in their favor is warranted because there is insufficient evidence demonstrating a steady barrage of offensive racial comments. However, the Court agrees with Plaintiff that there is a genuine factual dispute over whether the alleged harassment was pervasive or severe enough to create a hostile work environment.
When considering a hostile work environment claim, the court looks "at both specific hostility targeting Plaintiff as well as the general work atmosphere."
Furthermore, Plaintiff includes evidence that Kidd called Plaintiff a "boy" and told him to pick up trash after the white folk.
In sum, there are questions of fact as to the severity and pervasiveness of the conduct and these questions are generally unsuited for summary judgment determination. Thus, the Court denies Defendants' request for summary judgment on Plaintiff's hostile work environment claim.
Under Count I, Plaintiff also brings discrete discrimination claims. Defendants argue that four discrete discrimination claims, occurring throughout Plaintiff's employment, are time barred. These claims include: (1) a pay raise delay, (2) a failure to promote Plaintiff to Detective, (3) a denial of equipment, and (4) a denial of training.
In Plaintiff's response, he asserts that Defendants do not specifically assert summary judgment on his racial discrimination claim. It appears Plaintiff is referring to the fact that Defendants do not discuss Plaintiff's termination as a discrete discrimination claim. He is correct. Thus, the Court will not address Plaintiff's discriminatory termination claim, and Defendants are not entitled to summary judgment on this discrete claim.
Defendants do, however, request summary judgment on Plaintiff's four other discrete discrimination claims, noted above. Plaintiff fails to specifically address the substance of Defendants' argument. Instead, Plaintiff simply states that these instances are part and parcel of his hostile work environment claim. To the extent that Plaintiff brings these incidents as part of his hostile work environment claim, the information can be considered for that purpose.
To the extent Plaintiff brings these as discrete discrimination claims, a plaintiff alleging a violation of Title VII must file an administrative charge with the EEOC within 300 days of the challenged action.
Plaintiff's second claim is for retaliation. The plaintiff bears the ultimate burden of proving that his employer intentionally discriminated against him,
If the plaintiff establishes a prima facie case, the burden shifts to the employer to offer a legitimate non-retaliatory reason for the adverse employment action.
The elements of a prima facie case for retaliation are: (1) the employee engaged in protected opposition to discrimination, (2) the employee suffered an adverse action during or after the protected opposition that a reasonable employee would have found materially adverse, and (3) a causal connection exists between the protected activity and the materially adverse action.
The Court first addresses whether Plaintiff engaged in protected opposition to discrimination. "Although no magic words are required, to qualify as protected opposition the employee must convey to the employer his or her concern that the employer has engaged in a practice made unlawful by [Title VII]."
Plaintiff argues that he engaged in protected opposition when: (1) he spoke with Sheriff Groves about racial harassment in December 2014 or January 2015; (2) he further complained to Sheriff Groves about Kidd's hostile behavior after Kidd failed to get the part-time job at the Columbus Police Department;
Plaintiff's third contention cannot be considered protected opposition to discrimination. First, Plaintiff did not actually report anything because he states that he attempted to report an incident regarding Gibson to Sheriff Groves. In addition, there is no evidence that Gibson's actions related to Plaintiff's race or that Plaintiff made any mention of racial issues to Sheriff Groves about Gibson. Thus, Plaintiff's attempted report to Sheriff Groves cannot be considered protected opposition to racial discrimination. Plaintiff's first and second contentions, however, are considered protected opposition to discrimination.
Plaintiff was terminated and thus he suffered an adverse employment action. Defendants argue, however, that Plaintiff cannot establish a causal connection between any protected activity and his termination. An employee claiming retaliation must demonstrate a causal connection between the protected activity and the adverse action. The Tenth Circuit has found a causal connection exists between an employee's protected activity and a materially adverse action "where the plaintiff presents evidence of circumstances that justify an inference of retaliatory motive."
In this case, Plaintiff's protected activity of speaking to Sheriff Groves in December 2014 or January 2015 occurred approximately five to six months prior to his termination on June 25, 2015.
Plaintiff asserts that the inference of retaliatory discharge is justified because there is evidence that Defendants' proffered reason for his termination—poor work performance—is pretextual. Plaintiff directs the Court to evidence of similarly situated individuals, both of whom are white, that received far more poor performance reviews and written reprimands. It is uncontroverted that both Kidd and Piepho received multiple disciplinary measures, including suspensions and numerous written reprimands, prior to their eventual terminations. Kidd had at least nine documented instances of work misconduct or written reprimands. Piepho also had multiple reprimands and was written up for verbal abuse and harassment of a female co-worker that did not result in his termination. Although both individuals were ultimately terminated like Plaintiff, they experienced striking differences prior to their termination compared to Plaintiff. Specifically, Kidd and Piepho's conduct was tolerated far longer than Plaintiff's, although they showed a greater degree of poor performance, and they received numerous written reprimands and warnings. This raises a question of fact as to why Plaintiff, who is African-American and complained of racial issues, was not similarly treated. Thus, through Plaintiff's evidence of pretext, Plaintiff meets his burden of establishing a causal connection in his prima facie case of retaliation.
Defendants' proffered reason for terminating Plaintiff for poor work performance has support in the record. His two performance reviews in 2014 included several below average marks regarding reliability, dependability, and willingness to work extra events. In addition, in the month preceding his termination, Sheriff Groves received a complaint from another law enforcement agency regarding Plaintiff. Approximately one week after this complaint, Sheriff Groves requested that Plaintiff participate in a funeral procession of a family member of the Sheriff's Department, and Plaintiff stated that he did not want to do it. Furthermore, approximately two weeks later, Plaintiff failed to respond to a theft call on June 21, 2015. These are valid, non-retaliatory reasons for Plaintiff's termination.
Plaintiff contends that Defendants' reason of poor performance is pretextual because Sheriff Groves did not give him a reason for his termination, generally failed to confront Plaintiff about his alleged work deficiencies, and tolerated poor work performance from other white employees. It is undisputed that Sheriff Groves did not give Plaintiff a reason for his termination and never subsequently informed Plaintiff of the reason. Here, in this litigation, Sheriff Groves asserts that Plaintiff's termination was due to poor performance.
In addition, it is undisputed that Sheriff Groves did not address Plaintiff's performance issues with Plaintiff prior to his termination. There were several incidents occurring the month prior to Plaintiff's termination that were the basis for Plaintiff's termination, but these issues were not addressed with Plaintiff or brought to his attention. In addition, no written reprimands or warnings were issued for these incidents. Although Plaintiff's reviews included several "below average" marks and certain performance issues were noted, his last review occurred approximately one year prior to his termination. In addition, his performance reviews were overall good. Furthermore, Plaintiff's only written reprimand occurred in September 2014, approximately nine months prior to Plaintiff's termination. Thus, it appears from October 2014 through June 25, 2015, there were no apparent performance issues brought to Plaintiff's attention or documented in a written performance review, reprimand, or warning.
In addition, as noted and discussed above, Plaintiff presents evidence of similarly situated individuals who were treated differently.
Defendants argue that, to the extent Plaintiff attempts to bring a claim for workers compensation retaliation, he fails to do so. Plaintiff fails to substantively address Defendants' contention. Plaintiff simply states in a footnote that he disagrees with Defendants' contention by stating that Defendants discriminated against him on the basis of race after he decided to pursue a worker's compensation claim. Thus, the Court grants summary judgment in Defendants' favor as to any workers' compensation retaliation claim.
For Plaintiff's third claim, he states that Defendants discriminated against and harassed him on the basis of his race in violation of 42 U.S.C. § 1981. Defendants argue that Plaintiff's claim is barred by the statute of limitations. In addition, Defendants assert, that summary judgment is proper on Plaintiff's § 1981 claim because Plaintiff failed to allege a violation by and through § 1983. Defendants raised Plaintiff's failure to properly allege his § 1981 claim in their reply brief. Thus, the Court issued an order, pursuant to Fed. R. Civ. P. 56(f), allowing Plaintiff time to file a sur-reply to address this contention.
Plaintiff filed a sur-reply and a Motion to Amend Pretrial Order. In Plaintiff's sur-reply, he acknowledges that his § 1981 claim needs to be brought through § 1983. He argues, however, that Defendants had sufficient notice of his claim in the Complaint and Pretrial Order. In his Motion to Amend, he seeks the Court's permission to amend the Pretrial Order to assert his § 1981 claim by and through § 1983.
A § 1981 claim based on post-contract formation is governed by the four-year statute of limitations contained in 28 U.S.C. § 1658.
Plaintiff categorized his claim in his Complaint and in the Pretrial Order as one under § 1981. He did not reference § 1983 with regard to this claim. Plaintiff has now filed a Motion to Amend Pretrial Order.
Defendants assert that there will not be manifest injustice if Plaintiff is not allowed to amend. Instead, Defendants contend that they will be prejudiced if the Court allows it. They contend that Plaintiff has definitively known of the issue since before the Pretrial Order was entered and Plaintiff's request is untimely.
The Court may modify a final pretrial order "only to prevent manifest injustice."
With respect to these elements, the Court finds that they do not weigh in favor of amending the Pretrial Order. Plaintiff states that that it is unclear how § 1981 claims should be pled. The Court disagrees. The requirement that § 1981 claims be pled through § 1983 against state actors is not new. Indeed, it has been the law in this circuit for approximately fourteen years.
In this case, Plaintiff made no attempt to allege a § 1981 claim, by and through § 1983, until this Court's Order requiring a sur-reply to Defendants' argument in their reply brief that Plaintiff did not allege a § 1981 claim properly. Plaintiff asserts that he could not have filed a sur-reply, but he could have requested leave to do so and did not until the Court requested a sur-reply. Moreover, he had the chance to allege the claim properly in the Pretrial Order as the Pretrial Order was entered approximately one month after Defendants' reply was filed. Plaintiff made no effort to assert his § 1981 claim through § 1983 at that time even though the parties engaged in an almost month-long exchange of the Pretrial Order. The parties submitted three proposed Pretrial Orders to Judge Birzer and had two phone conferences. In every proposed Pretrial Order, Defendants asserted the defense that Plaintiff failed to allege his § 1981 claim by and through § 1983. The final Pretrial Order was entered on November 27, 2019. Over three months later, Plaintiff now seeks permission to amend. Plaintiff does not proceed pro se and controlling precedent has existed for over a decade that requires a § 1981 claim to be brought through § 1983.
In addition, Plaintiff contends that Defendants have been on notice of his claim due to his allegations in his subsequent claims (Counts IV and V) for procedural due process and substantive due process violations. He states that his Complaint incorporated by reference all of his preceding allegations. In addition, he asserts that his claims (Counts VI and V) in the Pretrial Order explicitly state that they are brought under § 1983 for the purpose of enforcing rights guaranteed to Plaintiff under § 1981. Defendants disagree that they have been on notice.
The Court notes that there is a difference between claims brought under § 1983 and a §1981 racial discrimination claim brought by and through § 1983. Although Plaintiff states that he is bringing his § 1983 substantive and procedural due process claims through § 1981, substantive and procedural due process claims are not required to be brought through § 1981. Thus, the fact that he pled these claims in the Pretrial Order by and through § 1981 does not indicate that he intended to plead his stated § 1981 claim in the same manner. Indeed, it demonstrates otherwise, and Defendants were not on notice.
Plaintiff also contends that Defendants' defense will be no different. Defendants do not respond to this assertion. A § 1981 claim brought by and through § 1983 is "restricted by the doctrines limiting § 1983 claims."
In sum, Plaintiff does not demonstrate that manifest injustice will result if he is not allowed to amend the Pretrial Order. Thus, the Court denies Plaintiff's request. Plaintiff failed to bring his § 1981 claim by and through § 1983. Defendants are entitled to summary judgment on this claim.
Plaintiff's final two claims arise under 42 U.S.C. § 1983. He claims that Defendants violated his procedural and substantive due process rights. Defendants argue that these claims are barred by the two-year statute of limitations.
Generally, the statute of limitations for claims brought under 42 U.S.C. § 1983 are governed by the personal injury statutes for the state in which the federal district court sits.
Here, every act complained about by Plaintiff occurred on or before June 25, 2015. Plaintiff filed suit on November 6, 2017. Thus, Plaintiff's § 1983 procedural and substantive due process claims are untimely and barred by the statute of limitations. Accordingly, the Court grants Defendants summary judgment on these two claims.
In sum, the Court finds that there are genuine issues of material fact with regard to Plaintiff's hostile work environment claim and retaliation claim based on a complaint of racial discrimination. Defendants failed to ask for summary judgment on Plaintiff's discriminatory termination claim, so that claim remains as well. Plaintiff's discrete discrimination claims are time-barred, and Defendants are granted summary judgment on these claims. To the extent Plaintiff brought a worker's compensation retaliation claim, Defendants are entitled to summary judgment, and this claim is dismissed. Defendants are also granted summary judgment on Plaintiff's § 1981 racial discrimination claim. Finally, Plaintiff's § 1983 claims of substantive and procedural due process are dismissed because they are barred by the statute of limitations.
The Court recognizes that the Tenth Circuit in Bolden found that the district court applied the law with "too heavy a hand," and the § 1981 claim could have escaped dismissal but for the technicality for pleading it through § 1983. Bolden, 441 F.3d at 1334. The Court finds the circumstances in this case entirely different from the circumstances in Bolden. The Bolden decision was issued approximately fourteen years ago, Plaintiff does not proceed pro se, and Plaintiff did not attempt to assert his § 1981 claim through § 1983 until two weeks ago although his case was filed in 2017. Furthermore, the Brown decision, addressing issues very similar to this case, was issued approximately one year prior to the parties' briefing in this case.
