Wright v. Wyandotte County Sheriff's DepartmentWright v. Wyandotte County Sheriff's Department
MEMORANDUM AND ORDER
Plaintiff brings this action asserting claims of sex discrimination, race discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and a claim of age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The case comes before the court on defendant’s motion for summary judgment (Doc. 18). For the reasons set forth below, the motion is granted.
I. Factual Background 1
The following facts are either uncontroverted or are based on evidence viewed in the most favorаble light to the nonmoving party. Immaterial facts and facts not properly supported by the record are omitted.
Plaintiff Joyce L. Dosier Wright is a fifty-one year old black female. She commenced employment as a deputy sheriff with defendant Wyandotte County Sheriffs Department in February 1990. During her tenure with defendant, plaintiff claims that she was the victim of discrimination based on the following specific incidents:
Sergeant Charles Brooks once disciplined plaintiff for having juice at her work station, but did not sanction other employees who also had beverages at their work stations.
Another sheriff’s deputy posted a sign in the medium security pod, where plaintiff was on duty, that read, “Wright is wrong.”
At various times, Sergeant Adam Wilson did not answer questions that plaintiff posed to him.
At various times, Sergeant Brooks made disparaging remarks regarding interracial marriages.
Sergeant James Hiles generally spoke to plaintiff with a different tone of voicе than he did with all other employees, regardless of race or gender. On one occasion, Sergeant Hiles chased plaintiff down the hall and threatened her. Plaintiff does not recall what Hiles said or any of the circumstances surrounding the incident.
In 1993, Hiles ordered plaintiff to remove her earrings but did not require the same of other employees. After witnessing the earring incident, Captain Dewey Bond stated to plaintiff, “It’s a hell of a thing when they start dropping that рaper on you.” Captain Bond had made a similar comment two years earlier.
In 1993, Captain Bond disciplined plaintiff for not keeping her work station clean even though such maintenance was allegedly the responsibility of other employees. Plaintiff has no knowledge whether any other officers were disciplined over this incident.
On April 21, 1993, Sergeant Milton counseled plaintiff for using the override button to the entrance of a jail pod but did not counsel Dеputy John Norris, who had activated the override button in the past.
On July 9, 1993, one of plaintiff’s supervisors required her to work overtime and allowed a younger employee to go home.
Defendant disputes many of plaintiff’s contentions and further points out that plaintiffs conduct was the subject of numerous disciplinary reports. Those reports encompassed the following incidents:
On October 21, 1990, plaintiff failed to remain in a hospital room with a prisoner at the Kаnsas University Medical Center. Even after her supervisor, Sergeant Hiles, admonished her to stay with the prisoner at all times, plaintiff left the room on several
On January 23, 1991, plaintiff disciplined an inmate without the approval of a sergeant, as required by jail policy. No sanctions were imposed against plaintiff.
On January 30, 1991, рlaintiff left her post and locked herself out of the B Tower.
On October 13, 1991, plaintiff unholstered her weapon and pointed at a fellow deputy sheriff, “possibly in horse play.” As a result of this incident defendant issued plaintiff a letter of discipline for handling her duty weapon in an unsafe manner. Defendant also ordered plaintiff to undergo a Minnesota Multiphasie Personality Inventory (MMPI) at Action Investigations. An MMPI is essentially a psychological evaluation.
On November 13, 1991, рlaintiff failed to report to Action Investigations to take her MMPI as ordered. Defendant issued plaintiff a letter of discipline and informed her that she would be suspended without pay until she submitted to the testing.
On July 1,1992, plaintiff refused to remain on duty as ordered to cover a personnel shortage on a subsequent shift. Defendant issued plaintiff a letter of discipline for insubordination.
On July 5,1992, plaintiff, in violation of jail policy, authorized an inmate to get on an elevator and delivеr iced tea to her duty station. When informed that such behavior contravened departmental rules, plaintiff replied, “I don’t compare myself to other officers.”
On December 23, 1992, plaintiff received a performance evaluation indicating that she needed development in nearly every area of her job skills.
On February 12, 1993, defendant issued plaintiff a counseling form for failing to keep her jail pod properly maintained. Plaintiff filed a responsе in which she suggested that her failure to clean the pod was attributable in part to a lack of cleaning supplies. She also maintained that the cleanliness of the pod was the responsibility of the officers who ordinarily oversaw the pod.
On April 7,1993, plaintiff failed to give her supervisor proper notice that she would be late for work. Defendant assessed plaintiff twenty disciplinary points.
On April 21,1993, in violation of jail policy, plaintiff neglected to maintain a current assignment sheet of inmates in her area. Plaintiff also provided an inaccurate inmate head count to the succeeding shift. As a sanction, defendant suspended plaintiff for three days without pay.
Plaintiff responded to the suspension by contending that her problems resulted from the duty corporal’s refusal to send a rover to relieve her. Defendant conducted an investigation and determined that plaintiff had been provided prompt reliеf upon request. On appeal, the department’s undersheriff affirmed the suspension order.
Also on April 21, 1993, defendant issued plaintiff a counseling form for using the override to the entrance of H Pod, in violation of jail policy. Use of the override causes possible escape concerns.
On June 10, 1993, defendant issued plaintiff a counseling form for faffing to account properly for razors that she had issued to inmates. Although plaintiff conceded that she had disрensed the razors, she alleged that it was another deputy’s duty to retrieve and inventory the razors.
On July 7, 1993, defendant issued plaintiff a counseling form for faffing to provide proper notice that she would be late for her shift.
On July 9, 1993, plaintiff refused an order to remain on duty because of a shortage of personnel. As a result of this refusal, plaintiffs supervisor placed a disciplinary report in plaintiff’s permanent file.
On July 10, 1993, plaintiff failed to provide proper notiсe that she would be late for duty. Defendant assessed plaintiff twenty disciplinary points and placed a letter of discipline in her file.
On July 29, 1993, plaintiff failed to follow the jail’s inmate meal policy by refusing to give an inmate his required meal. Plaintiff also violated policy by ordering the inmate to
On August 11, 1998, plaintiff made “trusty аssignments” to inmates (i.e. entrusted inmates with special responsibilities) in violation of jail policy. Plaintiffs supervisor recommended that, based on plaintiffs cumulative violations, she be terminated.
On August 25, 1993, defendant discharged plaintiff on the grounds that her failure to follow directives caused continual disruption to the organization. On November 10, 1993, defendant’s grievance board upheld plaintiffs termination.
On April 12, 1994, plaintiff filed an EEOC complaint alleging race discrimination, age disсrimination, and retaliation. The complaint specified that the alleged discrimination began on June 17, 1993. Plaintiff did not contend at the time, nor does she argue now, that any of the alleged discriminatory acts were continuing in nature. The EEOC subsequently issued plaintiff a right-to-sue letter on January 30, 1996. This lawsuit followed.
II. Summary Judgment Standards
In deciding a motion for summary judgment, the court must examine any evidence tending to show triable issues in the light most favorable to the nonmoving party.
Bee v. Greaves,
The moving party bears the imtial burden of demonstrating the absence of a genuine issue of material fact. TMs burden may be discharged by “showing” that there is аn absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett,
III. Discussion
Plaintiff asserts claims of sex discrimination, race discrimination, and retaliation pursuant to Title VII and age discrimination pursuant to the ADEA. The court will evaluate separately each claim. Before doing so, however, the court must address two procedural matters.
A Proper Defendant
Plaintiff filed this action against the Wyandotte County Sheriffs Department. The sheriffs department is merely an agency of the county,
Farris v. Board of County Comm’rs,
Plaintiff contends that the Wyandotte County commissioners have notice of the case inasmuch as defendant is represented by an attorney from the county counselor’s office. Plaintiff suggests that the notice cures any pleading deficienсies. The Kansas Supreme Court has rejected that argument.
There are some statements in the brief of plaintiff to the effect that the county attorney was in the action from the beginning. The record discloses oMy that he represented the [defendant]. The record in nowise discloses he represented the board of county commissioners or that any motion or pleading was ever filed in its behalf by anyone.
Withers,
Under certain circumstances, the court wоuld grant plaintiff leave to amend her complaint and name the proper party as defendant. In the case at bar, however, amendment would be futile because plaintiffs substantive allegations fail to support either a discrimination or retaliation claim.
See Foman v. Davis,
B. Evidentiary Support
In support of its summary judgment motion, defendant has submitted numerous documents from plaintiff’s personnel file. Plaintiff insists that these materials are inappropriate for such a motion because Fed. R.Civ.P. 56 only authorizes the inclusion of sworn affidavits and certified papers. Plaintiffs argument is without merit. “[T]he particular forms of evidence mentioned in [Rule 56] are not the exclusive means of presenting evidence on a [summary judgment] motion. The court may consider any material that would admissible or usable at trial____ Rule 56(e) is an enlarging provision as to what may considered, not a restriction.” 10A Chаrles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure
§ 2721 (1983);
accord Duffee v. Murray Ohio Mfg. Co.,
The documents from plaintiff’s personnel file are admissible business records pursuant to Fed.R.Evid. 803(6). Indeed, defendant attaches an affidavit from the sheriff’s department records custodian indicating that the materials satisfy all elements of Rule 803(6). The court, therefore, will not exclude these records in analyzing defendant’s motion.
C. Sex discrimination
Plaintiff filed a sex discrimination charge with the EEOC on November 15, 1991. The EEOC determined that no violation had been established and issued a right-to-sue letter on March 26, 1992. Plaintiff took no further action with respect, to the sex discrimination allegations until she commenced her lawsuit in April 1996. Defendant argues that this claim must be dismissed as untimely. The court agrees. To maintain an action under Title VII, a plaintiff must file suit within ninety days after receiving the EEOC’s right to sue letter. 42 U.S.C. § 2000e-5(f)(l). Failure to adhere to this time limitation bars the claim.
Simons v. Southwest Petro-Chem, Inc.,
The ninety-day time limitation is “a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitablе tolling.”
Biester v. Midwest Health Servs., Inc.,
D. Race Discrimination
Title VII prohibits an employer from discharging or otherwise discriminating against an employee in the “terms, conditions, or privileges of employment” because of that employee’s race. 42 U.S.C. § 2000e-2(b). To prevail on her race discrimination claim, plaintiff must establish that defendant had a discriminatory motive or intent.
Ortega v. Safeway Stores, Inc.,
Plaintiff offers no direct evidence that defendant discriminated against her on the basis of race, but relies instead on circumstantial evidence to prove defendant’s discriminatory intent. To insure an efficient presentation of circumstantial evidence, the Tenth Circuit has adopted the burden shifting scheme originally set forth in
McDonnell Douglas Corp. v. Green,
Under the
McDonnell Douglas
framework, plaintiff first must establish a
prima fade
case of discrimination. If plaintiff succeеds, the burden of production shifts to defendant to articulate a legitimate, nondiscrhninatory reason for the adverse employment decisions.
Randle v. City of Aurora,
To establish a
prima fade
case of race discrimination, plaintiff must show that: (1) she is a member of a racial minority; (2) her job performance was satisfactory; (3) she was adversely affected by defendant’s employment decisions; and (4) similarly situated non-minority employees were treated differently.
See Martin v. Nannie & the Newborns, Inc.,
Only the second and fourth elements of the
prima facie
case are in dispute. With respect to prong two, defendant claims that plaintiff was unqualified for the deputy sheriff position and never performed the job in a satisfactory manner. The Tenth Circuit, howеver, has held that an employer’s proffered reason for taking an adverse action is not to be considered in assessing the sufficiency of plaintiffs
prima facie
case.
MacDonald v. Eastern Wyo. Mental Health Ctr.,
a plaintiff may make out a prima fade ease of discrimination in a discharge ease by credible evidence that she continued to possess the objective qualifications she held when she was fired, or by her own testimony that her work was satisfactory, even when disputed by her employer, or by evidence that she held her position for a significаnt period of time.
MacDonald,
Defendant further charges that plaintiff cannot demonstrate the fourth prong of her
prima fade
case because she has advanced no evidence indicating that she was treated less favorably than her non-minority counterparts. The court agrees. Plaintiff claims that she was the victim of racially disparate treatment based on the specific incidents discussed in Part I. None of those incidents, however, demonstrate that defendant subjected plaintiff to racial discrimination. First, plaintiff gives no indication that the individuals allegedly accorded differential treatment were non-minorities. Title VII does not require employers to treat all employees equally; it merely prohibits employers from meting out unequal treatment based on race.
EEOC v. Flasher Co.,
In addition to the specific incidents discussed in Part I, plaintiff also asserts a series of general allegatiоns that are either entirely conelusory in nature or have no evidentiary foundation whatsoever. Such statements are insufficient to defeat a motion for summary judgment.
Martin,
Even if plaintiff could state a
prima facie
case, she advances no competent evidence suggesting that defendant’s explanations for its employment decisions were a pretext for discrimination. The disciplinary meаsures taken against plaintiff, ultimately culminating in her discharge, are supported amply with legitimate and nondiscriminatory rationale.
See
Part I,
supra.
To show pretext, plaintiff must demonstrate “either that a discriminatory reason more likely motivated the employer or ... that the employer’s proffered explanation is unworthy of credence.”
Rea v. Martin Marietta Corp.,
Plaintiffs only “proof’ of pretext rests in a remark by Captain Bond that, “It’s a hell of thing when they start dropping that paper on you.” Plаintiff contends this statement shows that defendant deliberately initiated a paper trail to justify plaintiffs termination. This single comment does not establish pretext.
See Cone v. Longmont United Hosp. Ass’n,
E. Retaliation
In her final claim, plaintiff alleges that defendant retaliated against her for filing an EEOC claim in November 1991. To establish a
prima facie
case of retaliation under Title VII, plaintiff must show that: (1) she engaged in protected opposition to discrimination; (2) she suffered adverse action from her employer; and (3) there was a causal connection between her protected activity and her employer’s adverse action.
Sauers v. Salt Lake County,
Although conceding that plaintiff has established the first two elements, defendant insists that .plaintiff is unable to show a “causal connection” between the filing of her November 1991 EEOC claim and her August 1993 discharge. The causal connection requirement оf plaintiffs
prima facie
case “may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.”
Chavez v. City of Arvada,
Plaintiff has failed, however, to raise an inference of pretext. As the court noted in its discussion of plaintiffs race discrimination claim, plaintiff produces no competent evidence calling into question the validity of the sanctions imposed upon her. Her alternative explanations for defendant’s employment decisions are predicated on pure speculation. Mere disagreement with an employer’s adverse employment actions is not sufficient to establish pretext. The court, finding no genuine issues of material fact, grants summary judgment to defendant on plaintiffs retaliation claim.
F. Age Discrimination
In support of her age discrimination claim, plаintiff relies exclusively on one incident occurring July 9, 1993. Plaintiff contends that defendant assigned her overtime that evening while allowing a younger deputy to go home “because it was assumed the older officers would stay and work.” (Pl.’s Resp. at 8).
The ADEA provides, in relevant part, that it is unlawful for an employer “to discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment” on the basis of thаt individual’s age. 29 U.S.C. § 623(a)(1). To prevail on an ADEA claim, a plaintiff must demonstrate that age was “a determining factor” in the employer’s challenged decisions.
Greene v. Safeway Stores, Inc.,
Plaintiffs claim has no merit. Defendant made its overtime assignments on a rotating basis pursuant to a collective bargaining agreement. All emplоyees, regardless of age, were included in the rotation. Moreover, plaintiff provides no evidence that defendant failed to follow the normal rotation in requiring her to work overtime on the evening in question. Accordingly, summary judgment is granted on plaintiffs age discrimination claim.
IT IS, THEREFORE, BY THE COURT ORDERED that defendant’s motion for summary judgment (Doc. 18) is granted.
Copies of this order shall be mailed to counsel of record for the parties.
IT IS SO ORDERED.
Dated at Kansas City, Kansas, this day of April, 1997.
Notes
. Plaintiff does not dispute any of defendant’s uncontrоverted facts, but does include in her response twenty-six additional facts. Plaintiff, however, does not attach a copy of her deposition, upon which she relies exclusively in support her factual allegations. Although some of the deposition selections can be referenced by looking to the portions that defendant includes in its motion and reply, many cannot. Pursuant to D. Kan. R. 56.1, the court will not consider any factual contentions not supportеd with an evidentiary foundation.
. Plaintiff s complaint, filed
pro se
and not amended by her court-appointed attorney, could be construed broadly to assert a racial harassment claim in addition to general race discrimination. Plaintiff, however, fails to state a
Prima facie
case of racial harassment. The Tenth Circuit has held that more than a few isolated incidents of racial enmity are necessary to prevail on such a claim.
See Bolden v. PRC, Inc.,