Llizo v. Topeka, Kansas, City of
Filing
126
MEMORANDUM AND ORDER granting in part and denying in part 117 Defendant's Motion for Summary Judgment. Signed by District Judge John W. Lungstrum on 5/29/2012. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Shirley Yeo Llizo, V.M.D.,
Plaintiff,
v.
Case No. 11-2302-JWL
City of Topeka, Kansas,
Defendant.
MEMORANDUM & ORDER
Plaintiff filed this lawsuit against the City of Topeka after the City terminated her
employment. Plaintiff alleges that the City discriminated against her by terminating her
employment on the basis of her national origin, ancestry, color, race and/or sex in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e et seq. and the Kansas Act Against
Discrimination, K.S.A. § 44-1001 et seq. She also asserts that the City discriminated against her
by terminating her employment on the basis of her national origin, ancestry, color and/or race
in violation of 42 U.S.C. §§ 1981 and 1983. This matter is presently before the court on
defendant’s motion for summary judgment (doc. 118).1 As explained below, the motion is
granted with respect to plaintiff’s §§ 1981 and 1983 claims on the grounds that plaintiff has not
established a genuine dispute of material fact about whether the City had a custom of
discriminatory employment practices. The motion is otherwise denied.
1
In the pretrial order, plaintiff also alleges that the City denied her grievance
challenging the discharge decision on the basis of her national origin, ancestry, color, race
and/or sex. Defendant does not address these claims in its motion for summary judgment.
I.
Facts
The following facts are either uncontroverted or related in the light most favorable to
plaintiff, the non-moving party. Plaintiff Shirley Yeo Llizo is a non-Caucasian female of
Chinese ancestry born in the Republic of Singapore. She is a naturalized citizen of the United
States and a veterinarian licensed to practice in Kansas. In January 2006, plaintiff began her
employment with the City of Topeka as the Zoo Veterinarian at the City of Topeka Zoo. At all
time relevant to this dispute, plaintiff’s immediate supervisor, and the individual who made the
decision to hire plaintiff, was Michael Coker, the Zoo Director. The first three and one-half
years of plaintiff’s employment passed without incident.
On August 12, 2009, the United States Department of Agriculture (“USDA”) Animal and
Plant Health Inspection Service (“APHIS”) conducted a routine inspection of the Topeka Zoo.
The USDA-APHIS is responsible for inspecting licensed facilities in order to monitor
compliance with the Animal Welfare Act (“AWA”) and its regulations and standards. Facilities
such as the Topeka Zoo are expected to meet or exceed the regulations and standards of the
AWA at all times. The USDA has the authority to impose fines on a zoo and in some cases can
temporarily or permanently revoke a zoo’s license depending on the number, frequency and
severity of any incidents of noncompliance. The August 2009 USDA-APHIS inspection was
conducted by two inspectors, Dr. Katheryn Ziegerer and Dr. Michael Tygert. Plaintiff and two
other Zoo employees, Merle Miller and Fawn Moser, accompanied Drs. Ziegerer and Tygert
during the inspection.
The USDA-APHIS cited the Topeka Zoo for a number of violations it found during the
2
August 12, 2009 inspection. Pertinent to plaintiff’s discharge, the inspection report cited the
City for the presence of expired medications in the Zoo’s pharmacy. Specifically, the report
identified three vials of medications that had expired and the Zoo was cautioned to correct the
violation. This issue was identified as an “attending veterinarian” issue and plaintiff accepts
responsibility for retention of the expired medications. The inspection report cites numerous
other problems at the Zoo, none of which the City relies on for its discharge decision, including
the arguably preventable deaths of four Zoo animals; waste disposal issues; and pest control
issues.
On September 9, 2009, Mr. Coker and Assistant City Attorney Eric Smith met with Dr.
Ziegerer and Dr. Tanya Tims, another USDA-APHIS inspector, to discuss the August 2009
inspection and specific concerns about the facility. According to Mr. Coker and Mr. Smith, one
of the inspectors told them during this meeting that she believed that plaintiff lacked compassion
for the well-being of the Zoo animals. Mr. Coker avers that he was concerned that the inspectors
had that opinion of the Zoo’s veterinarian. During this meeting, one of the inspectors allegedly
advised Mr. Coker that the inspectors had found an additional 20 to 30 expired drugs and
medications at the Zoo.
On September 28, 2009, Drs. Zeigerer and Tims conducted another inspection of the Zoo.
In connection with this inspection, the inspectors requested medical records on numerous
specific animals. Plaintiff was tasked with providing the records to the inspectors and there was
a considerable delay in submitting the records to the USDA. According to the City, this delay
created the impression with the USDA that the City was manufacturing records to satisfy the
3
request for records and put the City in a “bad light” with the USDA. Although the USDAAPHIS cited the Topeka Zoo for a number of violations it found during the September 28, 2009
inspection, including the arguably preventable deaths of animals, the City does not contend that
any issues stemming from the September inspection–aside from the medical records
delay–resulted in plaintiff’s discharge.
According to Mr. Coker, he came to the conclusion following the August and September
2009 inspections that the Zoo did not have the right veterinarian running the veterinary program
and that a change needed to be made. At the end of October 2009, Mr. Coker terminated
plaintiff’s employment. The Notice of Discharge issued to plaintiff by Mr. Coker identified
numerous reasons for her discharge, including the retention of expired medications; lying to the
USDA that the City retained expired medications to “save budget”; demonstrating a lack of
professional courtesy to the USDA officials during the inspection; and the delay in providing
complete medical records to the USDA.2
Plaintiff subsequently grieved the discharge decision and the matter was submitted to
arbitration. The sole issue for resolution at the arbitration was whether “just cause” existed for
plaintiff’s discharge. In July 2010, plaintiff’s employment was reinstated as a result of that
arbitration and plaintiff remains employed today as the veterinarian at the Topeka Zoo.
Additional facts will be provided as they relate to the specific arguments raised by the
parties in their submissions.
2
The Notice of Discharge also relies on an incident concerning a Bornean orangutan,
but the City has withdrawn that basis for plaintiff’s discharge and no longer relies upon it.
4
II.
Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In applying this standard, the court views the evidence and make inferences in the light
most favorable to the non-movant. Kerber v. Qwest Group Life Ins. Plan, 647 F.3d 950, 959
(10th Cir. 2011). A dispute is genuine if “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party” on the issue. Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). Although the court views the evidence and draws reasonable
inferences therefrom in the light most favorable to the nonmoving party, “the nonmoving party
must present more than a scintilla of evidence in favor of his position.” Id. (quoting Ford v.
Pryor, 552 F.3d 1174, 1177–78 (10th Cir. 2008)).
III.
Discrimination Claims
Plaintiff contends that defendant terminated her employment on the basis of her national
origin, ancestry, color, race and/or sex in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C.§ 2000e et seq. and the Kansas Act Against Discrimination, K.S.A. § 44-1001 et seq.
She also asserts claims of race discrimination under 42 U.S.C. § 1981. As plaintiff has no direct
evidence of discrimination, her claims are analyzed using the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Khalik v. United Air
5
Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).3 Under McDonnell Douglas, plaintiff has the
initial burden of establishing a prima facie case of discrimination. Id. (citing Garrett v.
Hewlett–Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002)). To set forth a prima facie case
of discrimination, a plaintiff must establish that (1) she is a member of a protected class, (2) she
suffered an adverse employment action, (3) she qualified for the position at issue, and (4) she
was treated less favorably than others not in the protected class. Id. (citing Sanchez v. Denver
Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998).4 If she establishes a prima facie case, the burden
shifts to defendant to articulate a legitimate, non-discriminatory reason for the adverse
employment action. Id. (citing Garrett, 305 F.3d at 1216). If defendant meets this burden,
summary judgment against plaintiff is warranted unless she shows that her protected status was
a determinative factor in the employment decision or that the defendant’s reasons are pretextual.
Id.
In its motion for summary judgment, defendant first contends that plaintiff cannot
establish a prima facie case of discrimination because she cannot show that she was qualified
for the veterinarian position in light of her unsatisfactory work performance. As evidence of her
3
The court applies the same standards and burdens to plaintiff’s § 1981, § 1983 and
KAAD claims as it applies to plaintiff’s Title VII claims. Crowe v. ADT Servs., Inc., 649
F.3d 1189, 1194 (10th Cir. 2011); Carney v. City & County of Denver, 534 F.3d 1269, 1273
(10th Cir. 2008); Aramburu v. Boeing Co., 112 F.3d 1398, 1403 n.3 (10th Cir. 1997).
4
The fourth prong of the prima facie test is a flexible one that “can be satisfied
differently in varying scenarios.” Swackhammer .v Sprint/United Management Co., 493 F.3d
1160, 1166 n.8 (10th Cir. 2007). Because defendant here does not challenge the fourth
prong, the court need not concern itself with the appropriate formulation of that prong.
6
alleged poor performance, defendant relies on its asserted reasons for plaintiff’s discharge.
Defendant, then, urges the court to consider its proffered nondiscriminatory reasons for
terminating plaintiff’s employment in connection with analyzing plaintiff’s prima facie case.
Stated another way, defendant suggests that plaintiff must disprove defendant’s proffered
reasons for the termination decision in order to establish her prima facie case. This argument
constitutes an impermissible “end run” around the McDonnell Douglas analysis and the court
cannot consider it at the prima facie stage. See, e.g., EEOC v. Horizon/CMS Healthcare Corp.,
220 F.3d 1184, 1192–94 (10th Cir. 2000) (requiring plaintiff to disprove defendant’s proffered
reason for employment decision to establish prima facie case would inappropriately short circuit
McDonnell Douglas analysis and frustrate plaintiff’s ability to establish pretext).
Because defendant does not otherwise challenge plaintiff’s prima facie case, the court
turns to analyze whether defendant has met its burden to articulate a legitimate,
nondiscriminatory reason for the termination decision. “This burden is one of production, not
persuasion; it can involve no credibility assessment.” Carter v. Pathfinder Energy Servs., Inc.,
662 F.3d 1134, 1149 (10th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000)). The Tenth Circuit has characterized this burden as “exceedingly light,”
and the court finds that defendant has carried it here. See id.
Defendant asserts that it terminated plaintiff’s employment based on concerns relating to
the August 2009 and September 2009 USDA inspections as set forth in the Notice of Discharge,
including plaintiff’s maintaining expired medications (both the vials identified in the USDA
report and the additional medications allegedly identified by the inspectors in a conversation
7
with Mr. Coker subsequent to the August 2009 inspection); plaintiff’s “false statement” to the
USDA inspectors during the August 2009 inspection concerning budget constraints; plaintiff’s
lack of professional courtesy during the August 2009 inspection; and plaintiff’s failure to
provide complete medical records in a timely fashion for the September 2009 inspection.
Defendant also contends that one of the inspectors advised Mr. Coker that plaintiff “lacked
compassion for animals.” Based on all of these concerns, according to defendant, Mr. Coker
determined that the Zoo did not have the right veterinarian running the veterinarian program and
a change needed to be made. The burden of proof, then, shifts back to plaintiff to show that
defendant’s proffered reasons are pretextual.
Before turning to plaintiff’s pretext evidence, the court addresses defendant’s contention
that it is entitled to an inference that no discriminatory animus motivated the termination
decision in this case because the “same actor” hired and fired plaintiff within a relatively short
time span. The “same actor inference” is based on the notion that it “makes little sense to
deduce” that an individual who hires a person–fully aware of that person’s race or national origin
or other protected characteristic–would then fire that person a short time later based on that
characteristic. See Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006). In
Antonio, the Tenth Circuit recognized that “in cases where the employee was hired and fired by
the same person within a relatively short time span, there is a strong inference that the
employer’s stated reason for acting against the employee is not pretextual.” Id. (internal
quotations omitted).
The court declines to apply the inference in this case. Mr. Coker hired plaintiff in January
8
2006 and her employment was terminated in October 2009–nearly 4 years after her start date.
The court doubts whether this four-year span constitutes a “relatively short time span” as
contemplated by the Tenth Circuit in Antonio. While the Circuit acknowledged that the temporal
separation between hiring and firing “has varied widely” among cases applying the inference,
five of the six cases cited by the Circuit in support of that observation applied the inference to
time spans of one year or less (and the Circuit in Antonio applied the inference to a 10-month
span) and the only case recognizing the inference beyond the one-year mark is a Fifth Circuit
case applying the inference to a four-year span. See id. at 1183 n.4. The Fifth Circuit appears
to represent the minority view on this issue and the Tenth Circuit has not endorsed the Fifth
Circuit approach. In the absence of further guidance from the Circuit on this issue, the court
declines to apply the same actor inference when four years has elapsed between the hiring and
firing decisions. See Quinby v. WestLB AG, 2007 WL 1153994, at *8 (S.D.N.Y. Apr. 19, 2007)
(same actor inference is “extinguished” by four years that passed between hiring and firing);
Thomas v. iStar Fin., Inc., 438 F. Supp. 2d 348, 361 (S.D.N.Y. 2006) (finding same actor
inference inapplicable where over three years elapsed between plaintiff’s hiring and firing).
Moreover, even if the court were inclined to apply the inference in this case, that
inference is at least weakened by the significant length of time between the hiring and firing
decisions because it is feasible that the decisionmaker may develop an animus toward a class of
people that did not exist when the hiring decision was made. See Carlton v. Mystic Transp., Inc.,
202 F.3d 129, 138 (2d Cir. 2000) (same actor inference less compelling when a significant
period of time elapses between hiring and firing); Rosales v. Career Sys. Dev. Corp., 2009 WL
9
3644867, at *13 (E.D. Cal. 2009) (four-year span between hiring and firing weakens “potency”
of inference). In any event, as explained below, plaintiff has produced evidence of pretext
sufficient to dispel whatever inference arises from the fact that Mr. Coker hired plaintiff and then
fired her four years later.
Evidence of pretext “may take a variety of forms,” including evidence tending to show
“that the defendant’s stated reason for the adverse employment action was false” and evidence
tending to show “that the defendant acted contrary to a written company policy prescribing the
action to be taken by the defendant under the circumstances.” Carter v. Pathfinder Energy
Servs., Inc., 662 F.3d 1134, 1150 (10th Cir. 2011) (quoting Kendrick v. Penske Transp. Servs.,
Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)). A plaintiff may also show pretext with evidence
that the defendant had “shifted rationales” or that it had treated similarly situated employees
differently. Crowe v. ADT Servs., Inc., 649 F.3d 1189, 1197 (10th Cir. 2011). In essence, a
plaintiff shows pretext by presenting evidence of “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could rationally find them unworthy of credence and
hence infer that the employer did not act for the asserted non-discriminatory reasons.”
McDonald-Cuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096, 1102 (10th Cir. 2011).
Before turning to plaintiff’s pretext evidence regarding the City’s proffered reasons for
terminating plaintiff’s employment, the court examines the evidence regarding a significant issue
that the City does not mention in connection with plaintiff’s discharge–the arguably preventable
animal deaths that occurred at the Zoo during the relevant time period. The USDA’s August
10
2009 inspection report addresses in detail the deaths of 4 animals–a leopard; an adult
hippopotamus; a tamandua; and a lion cub. There is evidence in the record that the USDA
inspectors perceived these animal deaths as the “most troubling” of the non-compliance items
identified in the report, yet defendant did not discipline any employee–including plaintiff–for
any of these deaths.
The inspection report suggests that the hippopotamus died “despite administration of
veterinary care” in part because the zookeepers failed to routinely monitor the temperature of
the pool, which was detrimental to the animal’s health. No zoo keeper was disciplined in any
way as a result of the hippo’s death. The tamandua apparently died in part because the
zookeepers failed to observe the animal for an extended period of time and did not convey
information concerning the health of the animal to plaintiff. No employee was disciplined over
the death of this animal. A lion cub died after falling off a three-foot-six-inch shelf in its housing
facility and landing on the concrete floor. Again, despite the concerns of the inspectors about
the number of animal deaths at the facility, no one was disciplined for this death. With respect
to the leopard, the inspection report suggests that this death resulted from a lack of adequate
veterinary care. Of the four animal deaths, the leopard death appears to be the only death for
which the USDA arguably held plaintiff responsible. While plaintiff has ample evidence
challenging this conclusion, the City did not discipline plaintiff for this death in any event and
it does not appear anywhere in the Notice of Discharge. Presumably, if defendant was truly
concerned about the inspectors’ perception of the facility (as it claims it was), then defendant
would have taken corrective action with respect to the most serious issues identified by the
11
inspectors–the deaths of numerous animals at the facility.
The USDA September 2009 inspection report identifies additional animal deaths as key
areas of concern, including the death of a Pallas cat; a rabbit; a pronghorn and a chevrotain.5 In
early October 2009, Mr. Coker drafted his comments regarding plaintiff’s performance in
preparation for her termination. This draft relies on the deaths of each these four animals (the
cat, rabbit, pronghorn and chevrotain) as a reason supporting plaintiff’s termination. Less than
3 weeks later, however, defendant issued the Notice of Discharge with no mention of these
animals deaths. This, too, suggests that defendant’s proffered reasons are unworthy of belief.
See Crowe, 649 F.3d at 1197 (pretext can be shown by evidence of defendant’s shifting
rationales for discharge decision); Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1002 (10th
Cir. 2011) (changing explanations can show that the employer is attempting to mask an
illegitimate motive).
The court turns back, then, to the specific reasons proffered by the City for plaintiff’s
discharge. As noted earlier, defendant asserts that it terminated plaintiff’s employment based
on concerns relating to the August 2009 and September 2009 USDA inspections. In the Notice
of Discharge, Mr. Coker first highlighted the expired medications discovered by the USDA
inspectors, including two vials identified in the inspection report and “over 20” additional
expired medications allegedly identified by the inspectors in a conversation with Mr. Coker on
5
The court does not suggest that these animals died in the period between the August
2009 and September 2009 inspections. The court presumes that information concerning
these deaths surfaced during the medical records review conducted by the USDA.
12
September 9, 2009. Plaintiff’s evidence demonstrates that the City’s decision to discharge her
for maintaining expired medications is inconsistent with a written Zoo policy that expressly
permits the retention of expired medications. That policy, in pertinent part, states that
Some expired drugs may be saved at the Veterinarian’s discretion, drugs that are
difficult to obtain, backordered, no longer manufactured or other reasons. These
drugs will be kept separate from the current drugs, and will have a sticker attached
to them reading “expired drug, use accordingly.”
While defendant contends that plaintiff violated the policy because the expired drugs discovered
by the USDA did not have the “expired drug, use accordingly” stickers affixed to them, it is
undisputed that defendant did not discharge plaintiff for retaining expired drugs without using
the appropriate stickers; it discharged plaintiff for retaining the expired drugs at all. Because the
City’s own policy permits the retention of expired drugs, plaintiff has sufficiently called into
question this asserted reason for her discharge. See Kendrick v. Penske Transp. Servs., Inc., 220
F.3d 1220, 1230 (10th Cir. 2000) (plaintiff may show pretext with evidence that the defendant
acted contrary to a written policy when making the adverse employment decision affecting the
plaintiff).
Moreover, there is other evidence from which a jury could reasonably conclude that the
City was not concerned about the retention of expired medications in the Zoo pharmacy. From
2001 through 2005, Dr. Cornelia Ketz-Riley, an employee at that time of Kansas State
University, provided veterinary services to the City at the Topeka Zoo on a contract basis.
According to Dr. Ketz-Riley’s testimony, USDA inspectors discovered expired medications in
the Zoo pharmacy in both 2002 and 2004 and yet the City did not terminate the contract with
13
Kansas State University or seek to have Dr. Ketz-Riley replaced in any way. It is undisputed
that Mr. Coker had knowledge of the expired medications retained by Dr. Ketz-Riley. In 2005,
the City asked Dr. Ketz-Riley to become a City employee and to remain as the Zoo’s
veterinarian in that capacity. Dr. Ketz-Riley declined the offer. While the court appreciates that
Dr. Ketz-Riley is not a “similarly situated employee” because she was not employed by the City,
this evidence nonetheless tends to show that the retention of expired medications was not truly
a concern to the City, particularly when viewed in the context of the City’s policy permitting
such retention.
Defendant also contends in the Notice of Discharge that plaintiff, during the September
2009 USDA inspection, failed to provide complete medical records for review by USDA
officials in a timely manner. Defendant asserts that plaintiff lacked “due diligence” and that her
delay put the Zoo in a “bad light,” by creating the impression that she was manufacturing records
to satisfy the inspectors’ requests. Viewed in the light most favorable to plaintiff, the evidence
demonstrates that this reason is disingenuous. The City’s electronic medical records system,
MedARKS,6 crashed in June 2009 and it is undisputed that the City lost two years’ worth of
veterinary medical records as a result of that crash, coupled with the City’s inadvertent failure
to back up data entries. No data was recoverable after the system crashed and Zoo employees,
including plaintiff, were charged with manually re-entering into the system two years’ worth of
paper records. This manual re-entry was not completed at the time the USDA conducted its
6
MedARKS, or Medical Animal Record Keeping Systems, is an electronic database
containing animal inventory, clinical notes, clinical pathology and related information.
14
inspections in August and September 2009 and manual re-entry was continuing even into 2012.
Because the majority of electronic records were missing, plaintiff could not respond to
the inspectors’ requests for records by simply going to the computer and printing the requested
records. Rather, she was required to comb through voluminous paper records to gather the
specific information sought regarding each animal about which the USDA requested medical
records. Significantly, plaintiff could not simply submit paper records to the inspectors, as those
records were not separated by specific animal but were compiled on a daily basis such that they
contained notations on a variety of animals and issues. The inspectors had requested records on
a “per animal” basis such as those maintained by the MedARKS system. The time delay, then,
was caused not by plaintiff’s lack of diligence or any attempt to recreate history, but by
plaintiff’s attempts to gather the information in light of what the City admitted was a
“catastrophic” system failure.
The evidence further reflects that Mr. Coker was well aware of the MedARKS system
failure and its affect on records retrieval at the time he criticized plaintiff for her delay in
providing records to the USDA inspectors. Moreover, in a late September 2009 e-mail to Mr.
Smith, Mr. Coker discusses the records delay and does not blame that delay on plaintiff in any
respect. He tells Mr. Smith that plaintiff “was a little slow getting the USDA medical files as
requested. USDA provided a list of files they wanted to review; it took a little time and
requesting more complete information on my part from Dr. Llizo for USDA to review.” The fact
that the records issue, without explanation, somehow escalated from a non-issue to a primary
reason for plaintiff’s discharge is sufficient to create a genuine dispute about the veracity of that
15
reason. This is particularly true when coupled with the fact that the City knew about the
MedARKS system failure and the affect of that failure on the ability to retrieve records and yet
failed to account for that issue in the Notice of Discharge.
According to defendant, Mr. Coker also decided to terminate plaintiff’s employment
because one of the USDA inspectors expressed to him that plaintiff “lacked compassion for
animals” and Mr. Coker was concerned that the inspectors had that opinion of the Zoo’s
veterinarian. Mr. Coker avers that this statement was made during the September 9, 2009
meeting that Mr. Coker and Mr. Smith had with Drs. Ziegerer and Tims. Neither Mr. Coker nor
Mr. Smith could identify which inspector allegedly made the comment. Viewed in the light most
favorable to plaintiff, the evidence in the record is sufficient to permit a jury to disbelieve this
reason. To begin, this reason does not appear in the Notice of Discharge and, as such, it does
not appear that the City relied upon this reason at the time it terminated plaintiff’s employment.
More significantly, however, Dr. Ziegerer avers that “at no time” did she tell anyone employed
by the City that plaintiff lacked compassion for animals or “any words to that effect.” She
further avers that she does not recall Dr. Tims at any time telling anyone employed by the City
that plaintiff lacked compassion for animals or any words to that effect. Genuine disputes of
fact, then, exist with respect to whether a USDA inspector told Mr. Coker that plaintiff lacked
compassion for animals.
Finally, defendant contends that plaintiff was terminated, in addition to the reasons set
forth above, for making a false statement to the USDA inspectors concerning the retention of
expired medication due to budget constraints and for demonstrating a lack of professional
16
courtesy to the inspectors during the August 2009 inspection. Other than a citation to the Notice
of Discharge, however, defendant sets forth no evidence supporting these specific reasons. The
Notice of Discharge states that plaintiff’s “false statement” to USDA officials “that we were
saving budget was not appropriate.” There is no evidence in the record as to how Mr. Coker
learned about plaintiff’s alleged statement or the basis for his asserted belief that she made such
a statement. There is no evidence that he accompanied the inspectors and plaintiff on the
inspection such that he would have first-hand knowledge of the statement. Mr. Coker does not
aver or otherwise state anywhere that the inspectors communicated plaintiff’s alleged statement
to him. The alleged statement does not appear in the inspection report or in the affidavits of the
USDA inspectors. Indeed, Dr. Ziergerer avers only that she asked Mr. Coker at some point after
the inspection “if the expired drugs were being maintained due to budget limitations” and he
replied that “budget was not an issue with regards to the drugs.” Dr. Ziegerer does not suggest
that the budget idea came from plaintiff and no other evidence in the record points to plaintiff
as the source of this statement.
The Notice of Discharge also states that plaintiff “demonstrated a lack of professional
courtesy to the USDA inspectors: became argumentative with regard to the number of expired
medications, refused to demonstrate capture equipment.” As with the alleged false statement,
however, there is no independent evidence in the record supporting this assertion. Mr. Coker
was not present during the inspection itself and he does not indicate anywhere in the record how
he came to learn about plaintiff’s allegedly unprofessional conduct. The affidavits of the
inspectors do not suggest that plaintiff was unprofessional in any respect and do not state that
17
she refused to demonstrate equipment or was argumentative about the expired medications.
There is no testimony in the record from the employees who accompanied plaintiff on the
August 2009 inspection, Merle Miller and Fawn Moser.
Defendant’s lack of evidence concerning the alleged false statement and lack of
professional courtesy casts some doubt on these reasons. While plaintiff’s pretext evidence as
to these two reasons may not be particularly compelling, her burden with respect to these reasons
is not a high one because plaintiff has come forward with ample evidence of pretext concerning
the other reasons proffered by defendant–reasons upon which defendant relies much more
heavily than it does on the alleged false statement and lack of professional courtesy. See Bryant
v. Farmers Ins. Exchange, 432 F.3d 1114, 1126 (10th Cir. 2005) (“when the employer casts
substantial doubt on many of the employer’s multiple reasons, the jury could reasonably find the
employer lacks credibility. Under those circumstances, the jury need not believe the employer’s
remaining reasons.”).
For the foregoing reasons, a reasonable jury could conclude that defendant’s proffered
reasons are unworthy of belief and plaintiff survives defendant’s motion for summary judgment
on these issues.
IV.
Municipal Liability
In order for municipal liability to arise under §§ 1981 and 1983, plaintiff must
demonstrate that the City’s officials acted pursuant to a “policy or custom” of discriminatory
employment practices. See Carney v. City & County of Denver, 534 F.3d 1269, 1273 (10th Cir.
18
2008). “An unconstitutional deprivation is caused by a municipal ‘policy’ if it results from
decisions of a duly constituted legislative body or an official whose acts may fairly be said to
be those of the municipality itself.” Id. at 1274 (quoting Marshall v. Columbia Lea Reg'l Hosp.,
345 F.3d 1157, 1177 (10th Cir. 2003)). Plaintiff has neither alleged nor produced any evidence
suggesting that the discrimination she allegedly suffered was caused by any legislative action
or any “an official whose acts may fairly be said to be those of the municipality itself.” See id.
Indeed, the pretrial order expressly states that plaintiff is not relying on any purported policy to
establish a claim for municipal liability. To survive summary judgment on her §§ 1981 and 1983
claims, then, plaintiff must produce evidence that the discrimination was the result of a
municipal custom. See id.
A “‘custom’ has come to mean an act that, although not formally approved by an
appropriate decision maker, has such widespread practice as to have the force of law.” Id.
(quoting Marshall, 345 F.3d at 1177). “In order to establish a custom, the actions of the
municipal employees must be ‘continuing, persistent and widespread.’” Id. (quoting Gates v.
Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993)). In attempting to prove the
existence of such a “continuing, persistent and widespread” custom, “plaintiffs most commonly
offer evidence suggesting that similarly situated individuals were mistreated by the municipality
in a similar way.” Id. Indeed, a plaintiff’s “failure to allege the existence of similar
discrimination as to others seriously undermines her claim that the City maintained a custom of
discriminatory personnel practices.” Id. (quoting Randle v. City of Aurora, 69 F.3d 441, 447
(10th Cir. 1995)).
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Plaintiff does not allege that the City has a custom of discriminating against individuals
in her protected classes and she does not allege that similarly situated individuals were
mistreated. In fact, the only instance of discrimination identified by plaintiff is her own
discharge. This limitation is fatal to her claim for municipal liability under Randle. In Randle,
the Tenth Circuit affirmed the district court’s conclusion that the plaintiff had failed to establish
a genuine dispute of material fact about whether the City had a custom of discriminatory
employment practices because the plaintiff had identified only a few incidents of discrimination,
all of which were directed against her. Randle, 69 F.3d at 447. Discrimination cannot
conceivably be the City’s “standard operating procedure” based on one incident of
discrimination. See id.; see also City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 130 (1988)
(plurality opinion) (custom requires that the illegal practice be “widespread”–i.e., involving a
“series of decisions”). In attempting to establish the existence of a custom of discrimination,
plaintiff points to evidence of a “custom” of not taking adverse actions against non-foreign born,
Caucasian employees for USDA violations. But the plaintiff in Randle had evidence that other
employees were treated more favorably and, in the absence of evidence of discrimination against
individuals in the same protected category, the Circuit concluded that no custom existed. See
id.
Because plaintiff cannot sustain a claim for municipal liability, the court grants summary
judgment in favor of defendant on plaintiff’s §§ 1981 and 1983 claims.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for
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summary judgment (doc. 118) is granted in part and denied in part.
IT IS SO ORDERED.
Dated this 29th day of May, 2012, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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