Chambers v. Kansas City Kansas Community College

Filing 71

MEMORANDUM AND ORDER granting in part and denying as moot in part 45 Motion for Summary Judgment. Signed by District Judge Carlos Murguia on 6/28/2013.Mailed to pro se party Johnny Chambers by regular mail (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHNNY CHAMBERS,

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Plaintiff,
v.
KANSAS CITY KANSAS COMMUNITY
COLLEGE,
Defendant.

Case No. 11-CV-2646-CM-DJW

MEMORANDUM AND ORDER
This matter is before the court on defendant’s summary judgment motion (Doc. 45). Defendant
argues that it is entitled to summary judgment on plaintiff’s race and age disparate treatment claims
and plaintiff’s retaliation claim because plaintiff cannot establish a prima facie case. For the following
reasons, the court dismisses plaintiff’s age-based claims for lack of subject matter jurisdiction, denies
as moot those portions of defendant’s motion, and grants the rest of defendant’s motion.
I.

FACTUAL BACKGROUND1

Plaintiff is an African-American male with a master’s degree.2 Defendant, a Kansas
community college, hired plaintiff in 2002 as an adjunct instructor. In 2008, plaintiff sued defendant
in federal court alleging various discrimination claims. The parties executed a settlement agreement
and release of claims in July 2009.
Under the 2009 settlement agreement, defendant agreed to employ plaintiff as a Resource
Center Developmental Math Facilitator (“RCDMF”), effective with the fall 2009 academic year. The
RCDMF position is a full-time staff position. Plaintiff’s job responsibilities include administering
1

The following facts are properly supported and not genuinely disputed. In determining these facts, the court views the
evidence and draws all reasonable inferences in the light most favorable to plaintiff, the nonmoving party.

2

The specific master’s degree that plaintiff holds is unclear.

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placement tests, preparing students for the math Work Keys Certificate, and assisting with CASA and
Accuplacer testing.
Plaintiff transferred to the RCDMF position in August 2009 and was placed on probation. He
remained on probation until at least February 10, 2010. Since his transfer, the following events
occurred:
(1)

Plaintiff’s name was misspelled and his title was incorrectly identified in college listings.

(2)

Plaintiff’s name was not included in defendant’s General Catalog 2009-2011.

(3)

Plaintiff did not receive books he requested. He requested certain books in the fall of
2009. He did receive some books around that time, but not the books he requested. He
asked for the books again in January 2010 and June 2010. He received some of the books
later that summer.

(4)

Plaintiff, despite his offers to assist, was not invited to participate in or help organize
orientation activities.

(5)

Plaintiff was not invited to attend Computer Assisted Design (“CAD”) training and was
not included on some correspondence regarding Accuplacer and Work Keys.

(6)

Plaintiff received written instructions for administering the Work Keys test. Plaintiff did
not receive additional training on administering the Work Keys test. Carly Eastling
provided additional training to other employees.

(7)

Plaintiff received a November 11, 2009 performance evaluation that had a total score of
89 and an honesty ranking of 5 (far exceeds requirements). One week later he received
another performance evaluation that had the same total score but an honesty ranking of 4
(generally exceeds requirements).

(8)

Plaintiff was paid $10,000 less than Ms. Eastling.

(9)

Plaintiff was not promoted to faculty or professor.

(10) Plaintiff learned in the fall of 2009 that he was not qualified to receive full benefits
because of his classification by KPERS as a “working after retirement employee.”
Plaintiff filed the instant complaint on November 23, 2011, alleging various claims under Title
VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act

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(“ADEA”) based on Events 1-10.3 Defendant moves for summary judgment, arguing that plaintiff
cannot establish a prima facie case for his age and race disparate treatment claims or his retaliation
claim.
II.

LEGAL STANDARD

Summary judgment is appropriate when there are no genuine disputes as to any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A movant that does
not have the burden of persuasion at trial has the initial summary-judgment burden of “pointing out to
the court a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). If the movant makes this showing,
the burden shifts to the nonmovant to set forth facts from which a rationale trier of fact could find for
the nonmovant. Id.
III.

ANALYSIS4
A. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s ADEA Claims

The court first addresses defendant’s summary judgment motion on plaintiff’s age-based
disparate treatment claim. Before analyzing the merits, the court addresses a jurisdictional issue.
Plaintiff brings a disparate treatment claim and a retaliation claim under the ADEA. He must have
exhausted his administrative remedies before filing these claims in federal court. See Shikles v.
Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (explaining that exhaustion of
administrative remedies is a jurisdictional prerequisite). This exhaustion requirement serves two goals:
3

The Pretrial Order outlines plaintiff’s four theories of recovery: (1) disparate treatment based on race and gender under
Title VII, (2) disparate impact based on age under the ADEA, (3) harassment based on race and gender under Title VII,
and (4) retaliation under Title VII and the ADEA. Although the second theory of recovery is listed as “disparate
impact,” the court understands this to be a typographical error based on the stated elements and the context of the
Pretrial Order. Regardless, as explained below, the court lacks subject matter jurisdiction over plaintiff’s ADEA
claims.

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The court is mindful of plaintiff’s pro se status and broadly construes his papers. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). But this generous review allows the court neither to create arguments on his behalf, id., nor to excuse
him from complying with the procedural rules of this court, Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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(1) it puts the defendant on notice of the allegations, and (2) it conserves judicial resources by giving
the defendant and administrative agencies an opportunity to investigate and resolve claims. Martinez
v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003).
Plaintiff submitted a charge to the Kansas Human Rights Commission (“KHRC”) in March
2010 and checked the box for age discrimination. But his factual statement did not include any facts
regarding age-based discrimination. Instead, his factual statement repeatedly explained that defendant
discriminated against him based on race and gender. (See Doc. 67-1 at 2 (“I was subjected to disparate
treatment compared to similarly situated Caucasian male and female employees[.]”; id. (alleging
defendant discriminated against him “due to [his] race, African American, my sex, male”.) Based on
this description, the KHRC did not investigate age discrimination. (See Doc. 50-3 at 44 (expressly
stating in the Summary of Investigative Findings that “[n]o allegations were made by [plaintiff]
concerning age discrimination and as such, were not investigated”).) Neither did the EEOC, which
adopted the KHRC’s findings. (Doc. 1 at 44.)
Plaintiff contends that merely checking the box on the charge form satisfies the exhaustion
requirement. The court disagrees. And the Tenth Circuit has rejected a similar argument. See Jenkins
v. Educ. Credit Mgmt. Corp., 212 F. App’x 729, 733 (10th Cir. 2007) (agreeing that the plaintiff failed
to exhaust her administrative remedies when she checked a box on her administrative complaint but
failed to provide supporting allegations). If the rule were otherwise, a plaintiff could exhaust his
claims simply by checking every box on the form and providing no supporting facts. This result would
defeat the goals underlying the exhaustion requirement. See, e.g., Velazquez-Rivera v. Danzig, 81 F.
Supp. 2d 316, 327 (D. P.R. 2000), aff’d in relevant part by 234 F.3d 790, 794–95 (1st Cir. 2000)
(“Merely checking a box arguing age discrimination and not elaborating those claims does not fulfill

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the administrative purposes that a charge with the EEOC is designed to serve, and does not provide a
basis for a later federal court discrimination complaint.”) (internal quotation omitted).
After reviewing the discriminatory acts described in the charge, the court agrees that the scope
of the administrative investigation that could reasonably be expected to follow would not include age
discrimination. See Manning v. Blue Cross & Blue Shield of Kan. City, No. 12-3190, 2013 WL
1490803, at * 2 (10th Cir. Apr. 12, 2013) (citing Jones v. United Parcel Servs., Inc., 502 F.3d 1176,
1186 (10th Cir. 2007)). The fact that plaintiff checked the age discrimination box does not change this
result. Because plaintiff did not exhaust his ADEA claims, the court dismisses these claims for lack of
subject matter jurisdiction.5
B. Defendant Is Entitled To Summary Judgment On Plaintiff’s Disparate
Treatment Claim Based On Race
Next, the court addresses defendant’s summary judgment motion on plaintiff’s race-based
disparate treatment claim. Plaintiff does not have direct evidence of racial discrimination. So the court
analyzes plaintiff’s disparate treatment claim using the burden-shifting framework outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Under this framework, plaintiff has the initial burden of establishing a prima facie case of
disparate treatment. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981)
(discussing McDonnell Douglas). To establish a prima facie case of disparate treatment, plaintiff must
present evidence that (1) he belongs to a protected class, (2) he suffered an adverse employment action,
and (3) the adverse employment action occurred under circumstances giving rise to an inference of
discrimination. Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir. 2011). If plaintiff establishes a
prima facie case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for

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Even if the court had subject matter jurisdiction over these claims, defendant would be entitled to summary judgment
on them for the reasons stated in the following sections. The court also notes that there is no evidence of the age of any
other employee.

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the adverse action. Tex. Dep’t of Cmty. Affairs, 450 U.S. at 252–53. If defendant does so, the burden
shifts back to plaintiff to show that there is a genuine issue of material fact as to whether defendant’s
proffered reasons are pretextual. Id.
1.

Plaintiff fails to make out a prima facie case

Defendant argues that plaintiff does not satisfy the first step of the McDonnell Douglas
framework because plaintiff cannot establish a prima facie case. Specifically, defendant argues that
Events 1-7 are not adverse employment actions and that plaintiff lacks evidence that Events 8-10
occurred under circumstances giving rise to an inference of discrimination. The court agrees.
a. Events 1-7 are not adverse employment events
An adverse employment action generally is a “significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir.
2007) (internal quotation omitted). Events 1-7 do not meet this definition because there is no evidence
that these events caused a “significant change” in plaintiff’s employment status.
Instead the evidence before the court indicates that these events were mere inconveniences that
did not cause more than de minimis harm to plaintiff’s job performance or status. See E.E.O.C. v. C.R.
England, Inc., 644 F.3d 1028, 1040 (10th Cir. 2011) (explaining definition of adverse employment
actions). For example, there is no evidence that the misidentification of plaintiff’s title altered his
stated job duties, professional status, or benefits. As another example, there is no evidence that the
failure to fill his book requests impacted plaintiff’s job performance or opportunities. Plaintiff
similarly fails to explain how his lack of CAD training, his lack of additional Work Keys training, his
not being invited to certain meetings, or the reduction in his “honesty” ranking (despite the same
overall score) had any discernible impact on his job performance or employment status. The court is
mindful that the Tenth Circuit has liberally defined the phrase “adverse employment action.” See id.

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But, based on the facts of this case and the evidence before the court, Events 1-7 are not sufficient to
support a claim of discrimination.
b. Events 8-10 did not occur under circumstances giving rise to an
inference of discrimination
Defendant concedes that Events 8-10 are adverse employment actions but argues that plaintiff
lacks evidence that these events occurred under circumstances giving rise to an inference of
discrimination. One method by which a plaintiff can make this showing is to demonstrate that his
employer treated similarly situated individuals more favorably. Luster, 667 F.3d at 1095. A similarly
situated employee is an employee outside of the protected class that performs the same basic job and
has similar employment circumstances. Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir.
1997).
Plaintiff identifies several individuals that he contends defendant treated more favorably. But
plaintiff fails to provide any specific evidence regarding the employment circumstances of these
individuals. For example, he generally does not provide evidence about each individual’s education,
work history, skills, training, probationary status, KPERS retirement status, or job performance.
Instead, he largely lumps all “non-minority” employees together. (See, e.g., Doc. 50-1 at 4, 14, 16, and
24 (generally referring to other employees as being a “non-minority” without any specific information
about race).) The court cannot find, given this incomplete information, that any of the individuals are
similarly situated.
In addition, the limited evidence plaintiff provides demonstrates significant dissimilarities
between him and several of the other employees. For example, Donald Balluch, William McNamee,
and John Kessler have different specialties than plaintiff (construction, auto technology, and building
and property maintenance, respectively, versus mathematics) and different original jobs (instructor,
aide, and instructor, respectively, versus RCMDF). And Carly Eastling has a different work history

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(former faculty member of the Kansas Area Technical School (“ATS”)6) and was reclassified as
faculty in 2012 based on a successful union grievance.
The court is mindful that plaintiff’s burden to establish a prima facie case is not onerous.
Aragon v. King Soopers, Inc., 19 F. App’x 806, 810 (10th Cir. 2001) (noting that while the prima facie
burden is not onerous, the plaintiff failed to meet it). But the evidence before the court is completely
lacking any factual basis for plaintiff’s assertion that his race formed the basis for Events 8-10. There
is no evidence of racial slurs, comments from supervisors about plaintiff’s race, or any other specific
circumstances giving rise to an inference of discrimination. Defendant is entitled to summary
judgment on this claim.
2.

Plaintiff fails to demonstrate pretext

Assuming plaintiff met his initial burden under McDonnell Douglas, defendant has come
forward with legitimate, non-discriminatory reasons for Events 1-10. C.R. England, 644 F.3d at 1043
(noting that this burden is “exceedingly light”). Event 1 is the result of typographical errors and
mistakes. Event 2 occurred because the catalog was printed either before, or shortly after, plaintiff
received his RCDMF title. For Events 3-5, defendant explains that it did not know that plaintiff was
not receiving his books, was not being allowed to participate in orientation activities, was not invited to
some training, and was omitted from some meetings. To the extent these actions occurred, defendant
explains that they were inadvertent oversights. For Event 6, defendant provided written instructions
and explains that plaintiff never requested additional training from Ms. Eastling. Event 7 occurred
because the initial evaluation accidentally included a page from another employee’s evaluation.

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In 2008, defendant executed a merger agreement with ATS. The merger agreement allowed ATS employees to be
transferred to or hired by defendant. Under the agreement, transferred employees were designated as staff instructors
for the first year. During negotiations for the 2009-2010 academic year, some former employees became faculty. Ms.
Eastling was a faculty member at ATS, was downgraded to a staff position after the merger, and was not reclassified as
faculty in the 2009-2010 negotiations. The Kansas National Education Association filed a successful union/labor
grievance on her behalf, which resulted in her reclassification to faculty in 2012. Unlike Ms. Eastling, plaintiff is not a
former ATS employee and is not covered by the terms of the merger agreement.

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Events 8 and 9 occurred because plaintiff was not subject to the terms of the ATS merger agreement.7
And for Event 10, it is plaintiff’s status as a KPERS retiree that limits his KERPS benefit and not any
action or policy of defendant. The burden, therefore, shifts back to plaintiff to show pretext.
A plaintiff can show pretext by demonstrating that the defendant’s stated reasons are “so
incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude [they are]
unworthy of belief.” Id. at 1039 (internal quotation omitted) (alteration in original). Plaintiff does not
make this showing. He relies on essentially the same evidence discussed above, and it fails for the
same reasons. There is insufficient information for the court to conclude that defendant treated other
“non-minority” employees differently. And plaintiff does not identify any internal policies that were
violated. Although he might disagree with defendant’s proffered reasons, he does not provide
sufficient evidence that these explanations are unworthy of belief. Defendant is entitled to summary
judgment for this additional reason.
C. Defendant Is Entitled To Summary Judgment On Plaintiff’s Title VII
Retaliation Claim
The last issue before the court is defendant’s summary judgment motion on plaintiff’s Title VII
retaliation claim. This claim is also subject to the McDonnell Douglas burden-shifting analysis, and
defendant contends that summary judgment is appropriate because plaintiff cannot make out a prima
facie case of retaliation. The court agrees.
To establish a prima facie case of retaliation, plaintiff must come forward with evidence that
(1) he was engaged in protected opposition to discrimination, (2) he was subjected to an adverse
employment action, and (3) a causal connection exists between the protected activity and the adverse
action. Luster, 667 F.3d at 1096. Plaintiff lacks evidence for the third element. There is no evidence
before the court that the individuals responsible for making promotion decisions even knew about

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The court notes that plaintiff never provides defendant’s criteria and qualifications for promotion.

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plaintiff’s discrimination complaints.8 Indeed, there is no evidence on the promotion process, the
individuals involved, or the promotion criteria. See Luke v. Hosp. Shared Servs., Inc., No. 12-1219,
2013 WL 1136937, at *4 (10th Cir. Mar. 20, 2013) (affirming summary judgment on retaliation claim
because no evidence that those who allegedly caused retaliatory act were aware of the protected
activity). And, other than plaintiff’s conclusory allegations that retaliation formed the basis for his
lack of promotion, the record is completely lacking any factual basis for this claim. Defendant is
entitled to summary judgment on this claim.
IT IS THEREFORE ORDERED that plaintiff’s ADEA claims are dismissed for lack of
subject matter jurisdiction. The portions of Defendant’s Motion For Summary Judgment (Doc. 45)
directed to plaintiff’s ADEA claims are denied as moot.
IT IS FURTHER ORDERED that the rest of Defendant’s Motion For Summary Judgment
(Doc. 45) is granted. The court enters summary judgment in defendant’s favor on plaintiff’s Title VII
race-based disparate treatment claim and retaliation claim. Plaintiff’s Title VII claims for (1) genderbased disparate treatment and (2) race and/or gender harassment remain for trial.
Dated this 28th day of June, 2013, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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The Pretrial Order explains that the lack of promotion to professor is the adverse action underlying plaintiff’s
retaliation claim. (Doc. 61 at 23.)

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